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as English law is concerned, shall be allowed. Perhaps the only recognisable principle in this class of legislation is, that those acts alone have been made the topics of it which, from the magnitude of the operations they necessarily cover, or the overtness with which they must be conducted, or the decisiveness of their bearing on the belligerent issue, seem to be singled out as the only possible and suitable ones for inviting the special intervention of the Legislature in derogation of the muchprized liberty of the subject.
The most noticeable instances in recent times of support given to the sanctions of International Law and Policy by statutory enactments are supplied by legislation for the purpose of preventing the negotiation of loans in this country, when belligerent, with the citizens or Government of a neutral State, with the purpose of the money so lent being transferred to the State with .which this country is at war; and the amended Foreign Enlistment Act of the present reign, by which shipbuilding and enlisting of soldiers in this country, when neutral, for the benefit of any belligerent Power, are subjected to preventive measures and penalties of a wholly unprecedented kind.
The difficulty of legislating for the case of succouring a State at war with England by the negotiation of loans is enhanced by the fact that these loans are always negotiated through the medium of a neutral State. It has been held to be the law of England that if an English subject lends money to a Government at war with this country, he commits the crime of treason. The offence is that of giving aid to the enemies of the Sovereign within the realm or elsewhere. But, in the Crimean war, the case was imagined, perhaps not withNegotiation of Loans with Hostile States. 205
out solid grounds of reality, of the Russian Government negotiating loans in a neutral capital, such as Vienna, and an English capitalist buying and paying for the Russian bonds thereupon issued. It was possible that the two transactions might be quite unconnected, and therefore that the Vienna banker who issued the loans could in no sense be considered the agent or partner of the English purchaser. It would, however, largely depend upon the facility with which the Russian bonds could be disposed of in the different European markets, and the terms upon which they were taken, how many of them could be issued by the Russian Government. A Bill was consequently introduced, in the year 1854, into the House of Commons, having for its object the rendering illegal the purchase by a British subject of any bonds or securities issued by the State then at war with England, if those securities were created subsequently to the declaration of war. The Bill was opposed by some commercial men of eminence, on the ground that it interfered with the freedom of trade in securities for money; and, on technical legal grounds, by a Law Officer of the Crown, Sir Richard Bethell. But when the matter was brought to the attention of Lord Palmerston, he at once recognised the importance of the object in view, and said that commercial interests and legal difficulties must give way to political considerations. He observed that the arguments used with regard to freedom of trade in securities issued by an enemy reminded him of a practice attributed to the Dutch, who, though none carried on naval warfare with greater determination and vigour, would stop, as it was said, in the heat of an action, in order to sell gunpowder to the enemy. Owing to the support of Lord Palmerston, the Bill was finally carried, in a somewhat altered form. The Act resulting from it recites that
• it is expedient to prevent, as much as possible, the 'Russian Government from raising funds for the pur'pose of prosecuting the war which it at present carries 'on against this country.' It enacts that' if, during 'the continuance of hostilities between Her Majesty 'and the Emperor of Russia, any person within Her 'Majesty's dominions, or any British subject in any 'foreign country, shall wilfully or knowingly take, 'acquire, become possessed of or interested in, any 'Stocks, Funds, Scrip, Bonds, Debentures, or Securities 'for money which, since the 29th day of March, 1854, 'have or hath been, or which, during the continuance of 'hostilities as aforesaid, shall be, created, entered into, 'or secured by or in the name of the Government of 'Russia, or any person or persons on its behalf, every 'person so taking, acquiring, becoming possessed of. or 'interested in, any such Stocks, Funds, Scrip, Bonds, 'or Debentures as aforesaid, shall be guilty of a mis'demeanour.' It is also provided that nothing in the Act contained 'shall have the effect of reducing to a 'misdemeanour any such offence which, if this Act had 'not been passed, would amount to the crime of High
* Treason, or be deemed in any manner to alter or affect 'the Law relating to High Treason.'1
The Foreign Enlistment Act of 1870, repealing and superseding the earlier Act of the same name of 1819, owes its existence to the controversies with the
1 17 and 18 Vict. cap. 123. In the account of this Act I am largely indebted to the courtesy of Professor Birkbeck, of Cambridge, for the use of an unpublished paper of his on The Promotion of Peace by Financial Action, read at Bremen in 1876 before the Association for the Reform and Codification of the Law of Nations.
Ship-building for Belligerents. 207
United States which arose out of the depredations of the Alabama; which had heen built at Liverpool, if not with the connivance, yet certainly, as the United States Government urged, through the culpable negligence, of the British Government. In the course of the controversy, it became more and more clear that whereas, in former times, English interests were mostly coincident with those of belligerents, they were now becoming far more frequently identical with those of neutrals. Some such consciousness as this no doubt helped forward the settlement at Washington, in 1871, when a Treaty was signed between Great Britain and the United States, which contained rales imposing duties on neutral Governments of a far more stringent sort than Great Britain, at least, would probably have at any previous time assented to. The spirit of these rules, however, had been already recognised by Parliament, and embodied in the Foreign Enlistment Act of the previous year.'1 Besides following the general prohibitions of the Act of 1819 against illegal enlistment in the service of a foreign State at war with a friendly State, the Act of 1870 takes precautions of an entirely novel sort against illegal ship-building and expeditions. It provides that any person 'building, or agreeing to build, or causing 'to be built, or equipping or despatching any ship, with 'intent or knowledge, or having reasonable cause to 'believe, that the same shall or will be employed in the 'military or naval service of any foreign State at war 'with any friendly State ' will bring himself within the penalties of the Act, unless he gives notice to the Secretary of State that he is building or equipping such a ship, and gives such security as the Secretary of State
may prescribe, that the ship shall not be 'despatched, 'delivered, or removed without the licence of Her 'Majesty, until the termination of the war.' The Act also provides that where such a ship is so built for, delivered to the order of, paid for by, or employed in the military or naval service of, such foreign State,' the 'burden shall be on the builder of such ship of proving 'that he did not know that the ship was intended to be • so employed in the military or naval service of such 'foreign State.' Penalties are also imposed for the offences ' of adding to the number of guns, changing 'those on board for other guns, or otherwise increasing 'the warlike force of any ship which, at the time of 'her being within the dominions of Her Majesty, is in 'the military or naval service of a foreign State at war 'with any friendly State.'
It is sufficient just to notice, as a further instance of the activity of Parliament in facilitating procedure which owes its rise to transactions with foreign States, the Naval Prize Act of 1864.1 Before the passing of this Act, a special Act used to be passed at the commencement of a war for the institution of Courts of Prize. The Court was a branch of the Court of Admiralty, but had a peculiar procedure of its own. As Lord Mansfield said of it, the Court was no more like the 'Court of Admiralty than it is to any Court in West'minster Hall.'2 The Act of 1864 makes the High Court of Admiralty and all its branches a permanent Court of Prize; and regulates, in a way somewhat, but not very, distinct from the former practice, the procedure in Prize cases.
1 27 and 28 Vict. o. 25.
2 Lord Mansfield's judgment in Lindo v. Rodney and another, cited in Douglas' Beportt, vol. ii. p. 594.