should be reversed by an order from the king. It is not for me to say how far this is a convenient mode of proceeding; it seems at least liable to suspicions of error, and even perhaps of some partiality. It must be intended that the decisions should be made in conformity to known and fixed principles of law; and these principles of law are contained in the decisions of this court, and the Court of Appeal, with which it is almost impossible that the trustees should be personally and accurately acquainted. In what way these principles of law are to travel to the minds of these gentlemen, unassisted with legal advice, or how they are to steer their way through the difficulties which may occur, it is not easy to say. Their determinations must, of necessity, sometimes occasion dissatisfaction to the parties interested, to whom no right of Appeal is given. His majesty has indeed preserved the right of control; and may, if he pleases, ex mero motu, or upon petition from any of the individuals interested, take the matter into his consideration, but he is not bound so to do.”

In this case of the Buenos Ayres, the crown made a grant to trustees of the booty; and they drew up a scheme, a petition against which was presented to the king in council: it *was received and referred [*197] to a committee, and in consequence of their report, it was referred for adjudication to the High Court of Admiralty.

In the cases of Seringapatam(t) and Toulon original jurisdiction appears to have been exercised by the Privy Council, without any reference to the Court of Admiralty.(u)

And by a statute passed in 1833, intituled, "An Act for the better Administration of Justice in his majesty's Privy Council," it is enacted, (x)" that it shall be lawful for his majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit, and such committee shall thereupon hear or consider the same, and shall advise his majesty thereon in manner aforesaid."

CXXXIV. By a statute passed in 1840, "to Improve the Practice and extend the Jurisdiction of the High Court of Admiralty," it is enacted, (y) "that the said High Court of Admiralty shall have jurisdiction to decide all matters and questions concerning Booty of War, or the distribution thereof, which it shall please her majesty, her heirs and successors, by the advice of her and their Privy Council, to refer to the judgment of the said court; and in all matters so referred the court shall proceed as in case of Prize of War, and the judgment of the court therein shall he binding upon all parties concerned."

CXXXV. The mention of Seringapatam naturally leads us to the consideration of the peculiar status of the English East India Company with respect to the distribution of Booty, inasmuch as that extraordinary and anomalous corporation has an army of its own which co-operates with that of the crown.

[*198]

After the capture of Seringpatam by General (afterwards *Lord) Harris, Lord Mornington, (2) the Governor-General directed the

(t) Vide post.

(u) The Army of the Deccan, 2 Knapp, p. 152 and n. †. (x) 3 & 4 Will. IV., c. 41, s. 4. (y) 3 & 4 Vict. c. 65, s. 22. (z) Better known as Marquis of Wellesley.

Secretary to write to General Harris an exposition of the law and practice of the East India Company upon this subject in the following letter:

"To Lieutenant-General Harris, Commander-in-Chief, &c., &c., &c. "Fort St. George, June 2nd, 1799.

“‹ SIR, "The Right Honourable the Governor-General in Council having considered your report upon the ordnance, ammunition, military stores, treasure, and jewels, taken in the Fort of Seringapatam, directs me to acquaint you that his Lordship in Council has resolved to order an immediate distribution of the treasure and jewels which have fallen into your hands. At the same time that the Governor-General in Council communicates this resolution to you, his Lordship thinks it expedient to impress upon your attention the principles of the Law of Nations, by which all property conquered from an enemy becomes the property of the State, and by which all idea of positive right in the captors to property in a fort taken by assault is exploded. In conformity to these principles, the king has been pleased to grant to the Company, by letters patent, bearing date January 14th, 1758, the right of all booty and plunder which shall be taken by their troops alone, reserving in express terms his royal prerogative of distribution in such manner and proportions as he shall think fit, in all cases in which the royal forces may have cooperated with those of the Company.

“Although the orders of the Court of Directors, prescribing the mode of carrying these letters patent into execution, expressly prohibit their governments in India from disposing of the whole plunder and booty which shall be taken in wars, hostilities, or expeditions, by the Company's forces;' and although his majesty, by the letters *patent themselves, has reserved to himself in express terms his 'pre[*199] rogative royal to distribute the said plunder and booty in such manner and proportion as he shall think fit,' in all cases in which his own troops may have been employed; yet, having no doubt that the gracious bounty of his majesty, and the liberality of the Court of Directors, will be proportioned to the important services of the gallant army under your command, his Lordship has no hesitation in charging himself with the responsibility of anticipating the royal sanction, and the determination of the Court of Directors. In adopting this decision, his Lordship trusts that he will manifest to the army an unequivocal proof of the gratitude which he feels for the continued exertion of their matchless bravery and discipline, by the prompt distribution of a reward, which their decisive success has enabled him to bestow. In their letter of the 8th March, 1758, the Honourable Court of Directors have ordered that, in land operations all cannon, ammunition, and military stores of all kinds, are not to come into the division, but are to belong to the Company.' Upon a further consideration, therefore, of this positive injunction, as well as of the principles of the Law of Nations applied to the right of booty, plunder, and conquest, and to the expenses incurred by the Company

for the support of the present war, the Right Honourable the GovernorGeneral in Council directs me to inform you of his Lordship's intention to reserve all ordnance, ammunition and military stores (including grain,) for the ultimate decision of his majesty, on such application as shall be made to him by the Honourable the Court of Directors.

"It will accordingly be necessary that a proper board of officers should be selected and appointed for the purpose of valuing, and of taking an exact inventory of, all that part of the captured property which is included under the denomination of ordnance, ammunition, and military stores of all kinds, for transmission to the Honourable Court of Directors. In ordering the distribution of the treasure and jewels, the GovernorGeneral in Council directs you *to be guided by the established [*200] usages, which have been observed in the British service in all cases of a similar nature; and to take upon yourself the decision of all points whatever, referable to this distribution, without further communication to his Lordship in Council. The proportion of prize-money to be allotted to the contingent of his Highness the Nizam, is to be determined by the number of his highness's troops actually employed in the field with the army before Seringapatam at the time of taking that place. "The British subsidiary force, serving with the contingent of his Highness the Nizam, will, of course, be included in the Company's army, and receive its proportion of prize-money according to the distribution made to the rest of the British forces. As it is probable that Meer Allum Bahadur may not be inclined to dispense with the right of his sovereign over that part of the captured property which may be allotted to his Highness the Nizam, the Governor-General in Council directs you to consult him upon this point, and to give orders for the appropriation of the Nizam's share, in such a manner as shall be most agreeable to Meer Allum.

"I have the honour to inclose a general order by Government, which the Governor-General in Council directs you to publish to the army, in order that the distribution of the prize-money may be immediately announced to them.

CXXXVI. We have next to consider the effect of War upon the

(a) Life and Services of General Lord Harris, by the Right Hon. S. R. Lushington, pp. 374-8. Nevertheless, Lord Harris appears to have sustained a most unjust and vexatious law-suit instigated by the East India Company, both in Chancery and before the Privy Council, upon the subject of this booty.-See cc. xxi. and xxvi. of his Life.

Rights and Duties of those who are not engaged in it-that is, of Neutrals.(a)

It is of the greatest importance to the well-being of the Society of States, that the relations of Neutrality should be respected, and preserved uninjured within those just limits which the reason of the thing, embellished by the wisdom of jurists, and fortified by the usage of nations, prescribes to it.

The relation of Neutrality will be found to consist in two principal circumstances :—

1. Entire abstinence from any participation in the War.

2. Impartiality of conduct towards both Belligerents.

Klüber says, tersely and happily, "A Neutral state is neither judge nor party."(b)

This abstinence and this impartiality must be combined in the character of a bonâ fide Neutral.

[*202]

*CXXXVII. The Neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position, as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications which flow from the altered state of the general relations of all countries in time of War. He must do nothing by which the condition of either belligerent may be bettered or strengthened-quo validior fiat.

It is for him perpetually to recollect, and practically to act upon the maxim, “hostem esse qui faciat quod hosti placet."(c) But it is not necessary that he should make any public declaration of Neutrality; the legal presumption is that his pacific status will continue unless he declare the contrary. The Neutral has nothing to do with the justice or injustice of the War, and the error of Grotius in this respect, though copied by Vattel, is rightly corrected by Bynkershoek, (d) and subse

quent writers.

CXXXVIII. Some jurists(e) have divided alliances into perfect and imperfect, or absolute and qualified; but such a distinction can scarcely be said to be supported by the reason of the thing. It may be that a State, which is not a belligerent, may have bound itself, by stipulations previous to the war, to furnish certain limited succours to one of the

(a) Grotius, 1. iii. c. xvii. De his, qui in bello medii sunt. It is a short and meagre chapter, with no allusion to the questions of maritime neutral law. He gives his reason for this brevity in the first section:-"Supervacuum videri posset, agere nos de his qui extra bellum sunt positi, quando in hos satis constet nullum esse jus bellicum. Sed quia occasione belli multa in eos, finitimos præsertim, patrari solent prætexta necessitate, repetendum hic breviter quod diximus alibi, necessitatem ut jus aliquod det in rem alienam, summam esse debere: requiri præterea ut ipso domino par necessitas non subsit: etiam ubi de necessitate constat, non ultra sumendum quam exigit. Id est, si custodia sufficiat non sumendum usum, si usus, non sumendum abusum: si abusu sit opus, restituendum tamen rei pretium."

(b) "Ein neutraler Staat ist weder Richter noch Partei."-Klüber, s. 284.
(c) Borrowed by Grotius from Agathias, Grot., 1. iii. c. xvii. iii. 2.
(d) Q. J. P., l. i. c. ix.

(e) Klüber, s. 281.

belligerents; but it is idle to contend that either this previous stipulation, or the limited character of the succour can take away the hostile and partial character of such an action. (f) "If I am neutral," says Bynkershoek, (g)" alteri non possum prodesse *ut alteri noceam,' [*203] and all jurists have agreed that Livy's(h) admonition, bello se non interponant, is a sound exposition of Neutral duty. To send succours is to co-operate pro tanto with the belligerent to whom they are sent. What does it matter to the other belligerent under what obligation contracted by a third Power his enemy is strengthened and heartened against him? Upon this principle of International Law, England and the North American United States have enacted the statutes commonly called the Foreign Enlistment Acts, the consideration of which has been partially anticipated in an earlier part of this work.(i)

It has often happened, no doubt, that political circumstances have caused such conduct on the part of a State, not actually belligerent, to be overlooked by the injured State; but we are not here speaking of expediency, but of right.(k)

In all probability, the peculiarity of position which Switzerland enjoys, the fact that she is hemmed in on all sides by States who have a direct interest in maintaining her Neutrality, has been the cause why that Neutrality has been unquestioned, while that European States have recruited their armies from the population of her Cantons. If she had been a commercial and maritime State, as M. Massé most justly observes, a very different rule would have been applied to this singular state of things. She has lately, to her great credit, passed regulations prohibiting her citizens from enlisting in foreign service.(7)

CXXXIX. There are acts of minor partiality, which, when they are the result of convictions previous to the breaking out of the War, it would be pedantically rigid to consider as violations of Neutrality,-for instance, the allowing prizes captured by one belligerent to be brought into the Neutral port, (m) especially, in compliance with the provisions of a *Treaty made antecedently to the War, could scarcely be [*204] considered as a violation of Neutrality. "Thus" (Mr. Wheaton observes)(n) "by the Treaty of amity and commerce of 1778, between the United States and France, the latter secured to herself two special privileges in the American ports;-1. Admission for her privateers, with their prizes, to the exclusion of her enemies. 2. Admission for

(ƒ) Massé, Le Droit Commercial dans ses Rapports avec le Droit des Gens et le Droit Civil, 1. ii. t. i. c. ii. s. 2. But Vattel holds that an ally may furnish succour due from him and remain neutral.-L. iii. c. vi. 101; c. vii. s. 105.

(9) Ubi supr.

(i) Vide ante, vol. i. pp. 397-594. App. (1) Massé, ubi supr., s. 173.

(h) L. xxxv. c. xlviii.

(k) Martens, s. 304.

(m) "Ist die Neutralität eine unvollkommene, so sind ihre Gsenzen der strengsten Auslegung unterworfen. Es kann auch, wenn durch vorausgegangene Verträge einem Kriegsführenden Theile gewisse vortheilhafte Zugeständnisse gemacht sind, der hierdurch benachtheiligten Partei das Recht nicht abgesprochene werden, diese Vergünstigungen durch Reactionen zu paralysiren, wenn nicht darauf von ihm verzichtet ist.. Keinesweges kann er aber präcise von dem Neutralen dieselbe Vergünstigung als ein Recht fordern."-Heffters, s. 146.

(n) Elements of International Law, vol. ii. p. 134.