[But inasmuch as the only penalty for such an act was an increase to the amount of salvage payable on restitution, and as the court has the power by the new act of fixing the amount at its discretion, there is nothing to prevent the court taking such a setting forth into its consideration in order to increase the salvage and costs if

necessary.

In contrasting these American acts, so far as salvage is concerned, with the corresponding portions of the English prize statutes, we shall find two important features of difference with respect to the right of postliminy as between owners and recaptors, one that whilst the American acts, as we have seen, continue the right until sentence of condemnation, the English statutes revive it even after a sentence of condemnation; the other, that whereas by the American act of 1800, the consequence of a captured vessel being set forth' as a vessel of war on recapture was merely an increase of the owner's liability for salvage-by the English statutes the consequence is condemnation as a prize of war. Those statutes are the following: the 45 Geo. III. c. 72, and 17 and 18 Vict. c. 18. The enactment of the § 9 of the former act was to the effect that if any vessel or goods therein, belonging to British subjects and taken as prize were recaptured, they should be restored to the former owners on payment of a salvage of oneeighth part of their value if recaptured by his majesty's ships, and if by privateers or other ships or vessels under his majesty's protection, of one-sixth part of such value. If recaptured by the joint operation of his majesty's ships and privateers, then such salvage was to be given as should seem just and reasonable to the proper court. But if the vessel so retaken should appear to have been set forth by the enemy as a ship of war, then the same was not to be restored to the former owners, but to be adjudged lawful prize for the captor's benefit. The 17 and 18 Vict. c. 18, in the

1 For the construction of the term "setting forth by the enemy" in these acts, the reader is referred to the following case, the Ceylon, 1 Dodson, p. 115. The Horatio, 6 Robinson, p. 320. L'Actif, Edwards, p. 185.

9th section was conceived in almost identical words, except that all allusion to privateers was dropped, as they were not to be employed during the Russian war, and that provision was made for the division and distribution of the salvage money in the same manner as in all prize cases; by the 10th section it was declared that all recaptured ships of her majesty's subjects before being carried into an enemy's port might be allowed to prosecute their voyage.]

NOTE. For a critical investigation of the right of Postliminy, as illustrated by the Roman Law and the older commentators on International Law and as exhibiting the philosophical tendencies of the German school of International Jurists the reader is referred to Heffter's work "Le Droit International Public, traduit par Bergsen," ed. 1857, §§ 187-190.

See also Story, On Prize Courts, ed. by F. T. Pratt, D.C.L. (1854), p. 81, citing the Santa Cruz, the San Francisco, the Adeline, 9 Cranch, 246, and Valin, T. II. p. 262, for the law in the case of the country of the recaptor having no municipal regulations on the subject.

CHAPTER VII.

FOREIGN ENLISTMENT ACTS.

[IT is proposed in the present chapter to give a short account of the settlement and provisions of the Foreign Enlistment Acts of the United States and of Great Britain, and of the leading decisions upon them.

It is scarcely necessary to draw attention to the importance of the subject in connexion with the relations. between neutrals and belligerents in time of war. The history of the recent contest in the United States, the diplomatic correspondence between the authorities at Washington and London, and the well-known case of the Alexandra, will bear sufficient testimony to that fact; and, as from what has been said in the former chapter, the law relating to privateering is materially influenced by the municipal regulations we are about to describe, it will not be out of place to take that description in this intermediate chapter.

The history of the two principal American Foreign Enlistment Acts of 1794 and 1818 begins, strictly speaking, with the trial of Gideon Henfield on the 22nd of May, 1793; but the narrative of that event may fitly be preceded by a notice of two letters from Washington to Alexander Hamilton'. In the first, dated April the 12th, 1793, speaking of the war then commenced between Great Britain and France, the President said: "It behoves

1 See Hamilton's Works, Vol. IV. pp. 357 and 359.

Case of M.
Genet.

the government of this country to use every means in its power to prevent the citizens thereof from embroiling us with either of those powers by endeavouring to maintain a strict neutrality. I therefore require that you will give the subject mature consideration that such measures as shall be deemed most likely to effect this purpose may be adopted without delay, for I have understood that vessels are already designated as privateers, and are preparing accordingly." In the second, dated the 18th of April, he alludes to a meeting to be held the next day to discuss the measures necessary for preserving a strict neutrality, and specifies one question (among several others) as of paramount importance, viz. whether a proclamation should issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, and whether it should contain a declaration of neutrality. On the next day, the 19th, it was resolved that such a proclamation should issue, and by that proclamation the citizens were reminded of the neutral attitude of their government, of its intention strictly to preserve that attitude, and of the evil consequences to such of the citizens as should aid or abet hostilities in defiance of this proclamation. Within a month after its publication its effect and the neutral attitude of the United States were tested by the conduct of M. Genet, the minister plenipotentiary from the republic of France. The facts, as stated by Mr Hamilton', were, that M. Genet, on his arrival at Charleston, caused two privateers to be fitted out, to which he issued proclamations to cruise against the enemies of France. There also the privateers were manned partly with citizens of the United States, who were enlisted or engaged for the purpose, without the privity or permission of the American Government. One or both of these privateers made captures of British vessels in the neighbourhood of the United States coasts, and brought or sent their prizes

1 Works of Alex. Hamilton, Vol. IV. p. 394.

293

field's trial.

into their ports. The British minister demanded restitution of these prizes. With that demand, Mr Hamilton thought there should be a compliance; but this view was opposed both by Mr Jefferson, and the then Attorney General. It is not necessary to dwell at any further length upon these facts, or upon the language and conduct of M. Genet1. What we have just stated is for the purpose of showing the point in which the neutral attitude of the United States was imperilled, and the reasons and necessity for the prosecution of Gideon Henfield. From Gideon Henthe brief statement of the evidence against him, as set out in Wharton's State Trials of the United States2, it appears that Gideon Henfield was a citizen of the United States, and that his family resided in Salem, Massachusetts. Being a sea-faring man, he had been absent from them some time; and, about the 1st of May, 1793, whilst at Charleston, South Carolina, and desirous of coming to Philadelphia, he applied to the master of a packet, who asked him more for his passage than he could afford to pay, whereupon he entered on board the Citizen Genet, a French privateer, commissioned by the French republic, and commanded by a Frenchman; by him Henfield, having been promised the post of prize-master on board the first prize captured, was put on board a ship belonging to, and captured from, British subjects, and in that capacity arrived at Philadelphia. Upon these facts he was indicted for a breach of the neutrality laws of the United States, by unlawfully and maliciously sailing and cruising on board a ship of war, called the Citizen Genet, and seizing and taking as prize a ship belonging to certain subjects of the king of Great Britain. After a long and anxious trial, and after a careful and impartial charge, and a still more careful and impartial summing up, Henfield was acquitted. In his life of Washington3, Chief Justice Marshall says: "By the acquittal of Gideon Henfield, the ad

1 As to that see American State Papers, Vol. 1. pp. 77-82.

2 Wharton's State Trials, p. 49.

3 Vol. II. p. 273, 4.