ever, is by her existing law enabled to prevent the exportation of munitions of war and provisions (1). But the enforcement of this law has always been considered a question of domestic policy. It forms a portion of her Custom House statute; and corresponds with a similar clause enabling the Crown to restrict the importation of the same articles.

During the last war with Russia, Her Majesty, being a belligerent, issued a proclamation, prohibiting the exportation of munitions of war, under the authority of this statute.

This statute was not put in force during the late American civil war, nor during the subsequent war between Spain and Chili, nor the present war between France and Prussia.

The Crown has generally been content to issue a proclamation announcing its neutrality, calling upon all subjects to abstain from affording aid to any belligerent, and warning them that if they carry contraband or break blockade, they will receive no protection. This appears to be the course pursued by France, Sweden, Spain, and Prussia.

The latter State did not exert any authority to prevent her subjects from dealing in contraband during the Crimean war, in which she was neutral; but is known to have liberally supplied belligerent Russia with ammunition and arms. Indeed, Prussia has gone farther than most States in not restraining commerce in this matter, having a Treaty with the United States of America, which provides that in the case of one of the contracting parties being engaged in war with any other Power, no arms,

(1) See the section at length, Appendix vii., p. 562.

ammunition, or military stores of any kind carried by the other party shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals (m), though liable to detention or "reasonable compensation" to the owners.

(m) Treaty of Amity and Commerce between the King of Prussia and the United States of America, signed at Berlin, July 11, 1799 (see Ann. Reg. 1800, p. 290):—

"Art. 12. Experience having proved, that the principle adopted in the twelfth article of the Treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the two last wars, and especially in that which still continues, the two contracting parties propose, after the return of a general peace, to agree either separately between themselves, or jointly with other Powers alike interested, to concert with the great maritime Powers of Europe such arrangements and such permanent principles as may serve to consolidate the liberty and the safety of the neutral navigation and commerce in future wars. And if in the interval, either of the contracting parties should be engaged in war, in which the other should remain neutral, the ships of war and privateers of the belligerent Power shall conduct themselves towards the merchant-vessels of the neutral Power as favourably as the course of the war then existing may permit, observing the principles and rules of the law of nations, generally acknowledged.

"Art. 13. And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise and contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in a case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port, nor farther detained, but shall be allowed to proceed on her voyage.

"All cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, belts, cartouch-boxes, saddles (!), and bridles (!!), beyond the

With respect to the furnishing ships of war to a belligerent, as with respect to the supplies of ammunition, there have been before and since the time of Grotius two schools of opinion: "Nam et "olim," he says, "et nuper de ea re acriter certatum "scimus, cum alii belli rigorem, alii commerciorum "libertatem defenderent” (n).

According to the exposition of International Law on this subject by the United States, bona fide commercial dealings in contraband (o) of war are not restrained, and an American subject may build and arm a vessel and supply her with stores, and, Mr. Dana says, "may without violating our law send out "such a vessel, so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances "of capture as contraband merchandise, of blockade, "and of a market in a belligerent port. In such case the extent and character of the equipments is แ as immaterial as in the other class of cases. "intent is all. The act is open to great suspicion "and abuse, and the line may often be scarcely "traceable; yet the principle is clear enough. Is "the intent one to prepare an article of contraband

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quantity necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger, ought to have; and in general whatever is comprised under the denomination of arms and military stores of what description soever, shall be deemed objects of contraband." By a Treaty of Commerce, May 1, 1828, between the same States, these provisions, with regard to the carriage of contraband, were carefully revised and re-inserted in that Treaty (Art. XII.).—Martens, Nouv. Rec. de Traités, xv. p. 615.

(n) De J. B. et P. 1. 3, c. i. § v.

(0) See vol. iii. pt. x. ch. i.

"merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of "the market? Or, on the other hand, is it to fit out "a vessel which shall leave our port to cruize, immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to pre"vent. The former the belligerent is bound to prevent" (p).

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XI. The question whether the powers given by the statute 59 Geo. III., c. 69 (July 3, 1819), to our Government, and by that of the preceding but almost contemporaneous statute of Congress (April 20, 1818) to the Government of the United States, are in excess or are in fulfilment of the International obligations of the neutral, receives a different solution from two schools of opinion as distinct upon this point of which I have spoken as upon that of contraband. If the former school was correct in its opinion, then the English Government was already more than sufficiently armed with authority for the discharge of the International duty incident to a neutral. If the latter school was correct in its opinion, then there was, to say the least, a doubt whether the statute, as at present interpreted by English judges, did confer on our Government the requisite authority (q).

In considering this subject it is to be remembered that International Law is not stationary, and that precedents of history, taken from a period when the mutual relations of States were less clearly defined

(p) Wheaton's International Law, ed. Dana, pt. iv. p. 563, end of

note 215.

(9) See Report of Neutrality Laws Commission, 1868.

than at present, cannot be considered as decisive on the point at issue. Precedents may be found in the time of Queen Elizabeth, and later, in which large bodies of English subjects were enlisted under the authority of the Government in this country, and, displaying the English or Scotch standard, took a part in the civil war of a foreign State without open war being declared between that foreign State and England. But for more than a century, at least, such a state of things has been considered as inconsistent with the duties of a neutral State.

And although the only alteration suggested by the United States has been in favour of a relaxation of the stringency of the provision of their Municipal Act (r), I rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive and given greater force and prominence to the maxim, that with respect to the external relations of the State, the will of the subject is bound up in that of his Government.

At all events, those who are interested in the progress of International justice may look with satisfaction upon the general state of feeling and usage throughout the civilized world upon the much-vexed question of Foreign Enlistment. There is no International subject perhaps in which, during the last thirty years, so decided an improvement has taken place. The axiom that to enlist foreign subjects without the consent of their Governments is a grave

(r) In 1866 this Neutrality Bill provided that "the neutrality laws shall not be so construed as to prohibit the sale of vessels, ships, or steamers, or materials, or munitions of war, the growth or product of this country, to the Government or citizens of any country not at war with the United States."-Ann. Reg. 1866, p. 277.