piracy, and other offences, which all nations have an equal right to judge and to punish. Does it, then, exclude the exercise of the belligerent right of capturing enemy's property ?

strances of M. Genet, and with the acknowledgments of Mr. Hammond. See Am. State Papers, i. 152-4. Hamilton's Works, iv. 424.

Mr. Randolph, now Secretary of State, writes to Mr. Jay, Aug. 11, 1794, in proof of our honest efforts to preserve neutrality, that the militia of Richmond, in Virginia, "actually marched, at a moment's warning, between seventy and eighty miles, to seize a vessel supposed to be under preparation as a French privateer." Writings of Washington (Sparks's), ii. 42.

In 1816, during the civil wars between the South American provinces and the parent States in Europe, the Portuguese Minister complained that privateers were fitted out in American ports, and sailed thence under colors of the revolted Portuguese colonies, often officered and manned by Americans, and returned to American ports and were refitted. He acquitted the government of any want of disposition to punish the offenders, and suggested that the difficulty lay in the want of preventive remedies in the act of 1794. He said, "I am persuaded that my magnanimous sovereign will receive a more dignified satisfaction and worthier of his high character, by the enactment of such laws by the United States as, insuring the respect due to his flag in future, would show their regard for His Majesty, than in the punishment of a few obscure offenders." (M. J. Correa de Serra to Mr. Monroe, 20th December, 1816.) President Madison, within a week of the receipt of this letter, on the 26th December, sent a message to Congress, calling its attention to an enlargement of the preventive powers under the statute, and recommending that power be given to require security against improper employment of vessels, and to seize and detain them in suspicious cases. Mr. Forsyth, chairman of the Committee on Foreign Relations, in a letter to the Secretary of State, sketched the changes proposed by the committee, which were considered satisfactory by the administration; and, on the 3d March, 1817, an act was passed, limited to two years, which was made permanent by the act of 20th April, 1818. The latter act repealed the act of 1794, and renewed its provisions, but with the additional preventive powers. The amended acts of 1817 and 1818 were entirely satisfactory to the Portuguese Minister, who considered the preventive powers of far more value than those which merely punished a completed offence. The new clauses required the owners or consignees of any armed vessel to give bond, with sufficient sureties in double the value of the vessel, cargo, and armament, that it should not be employed by them to cruise or commit hostilities against any State or people with whom the United States were at peace; and authorized the revenue officers to detain any vessel about to depart under circumstances rendering it probable that she would be so employed. (§§ 10, 11, act 20th April, 1818.) At the same time, from a suggestion of the Spanish Minister that the South American provinces in revolt, and not recognized as independent, might not be included in the word “state,” the words "colony, district, or people," were added.

Persons in the service of the insurgent colonies seized upon two places near the American coast, but beyond our jurisdiction, and not within the certain limits of any responsible power (Amelia Island and Galveston), and made them bases of naval operations against Spain and Portugal. President Madison having called the attention of Congress to this state of things, Congress recommended the suppression of these establishments, and the President took the extreme step of breaking them up by military force, apparently on the ground that they were a kind of international nuisance, which it was in our power to suppress without a serious violation of

This right of capture is confessedly such a right as may be exercised within the territory of the belligerent State, within the

territoriality of any responsible sovereign. The committee of Congress reasons that: "If not checked by all the means in the power of the government, the existence of these establishments would have authorized claims from the subjects of any foreign governments for indemnities, at the expense of this nation, for captures by our people in vessels fitted out in our ports, and, as could not fail of being alleged, countenanced by the very neglect of the necessary means of suppressing them."

II. THE UNITED STATES STATUTES FOR THE BETTER PRESERVATION OF NEUTRALITY. The original and chief act is that of 5th June, 1794. It was continued in force for a limited time by the act of 2d March, 1797, and perpetuated by the act of 24th April, 1800. On the 14th June, 1797, an act was passed to prevent citizens from privateering against nations in amity with the United States. The amended act, giving preventive powers, was passed 3d March, 1817. The whole subject was codified in the act of 20th April, 1818, and the former acts repealed.

The provisions of the act of 1818 are as follows:

Sect. 1 prohibits any citizen within the United States from accepting and exercising a commission to serve, in war, any foreign State, &c., against any State, &c., with which the United States are at peace.

(The phrase used throughout the act is "any foreign prince, state, colony, district, or people.")

Sect. 2 makes it criminal for any person within the United States to enlist on board any armed vessel of a foreign State, &c., whether public vessel or privateer; or to procure any other person so to enlist; or to go beyond the jurisdiction of the United States for the purpose of so enlisting, -with an exception, permitting such enlistment on board a vessel of a subject of the State owning the vessel, where it was completely fitted and commissioned as a vessel of war before its arrival in the United States, and the person enlisting was only transiently within the United States.

Sect. 3 makes it criminal for any person within the United States to fit out or arm a vessel, or attempt or procure, or be concerned in, &c., with intent that it shall be employed in the service of any foreign State to commit hostilities against any State at peace with the United States, or issue or deliver a commission to such a vessel with like intent. This section also forfeits the vessel, her stores and armament, and all materials procured for building and equipping her.

Sect. 4 relates to privateering by citizens against commerce of the United States. Sect. 5 makes it criminal for any person in the United States to increase or augment the force of any vessel of war or privateer of a foreign State, or to attempt or procure, or be concerned therein, which State is at war with a State in amity with the United States, by adding or increasing the force of "any equipment solely applicable to war."

Sect. 6 makes it criminal for any person within the United States to begin or set on foot, or provide means for, any military expedition or enterprise to be carried on from thence against any foreign State with which the United States is at peace.

Sect. 7 gives the district courts jurisdiction of complaints for captures made within a marine league of the shores of the United States.

Sect. 8 authorizes the President to employ the land or naval forces or militia to prevent such enterprises or expeditions, and to take possession of or detain any vessel or her prizes, in order to execute the provisions of the act, or to make restitution if so adjudged.

Sect. 9 authorizes the employment of the same force to compel the departure

enemy's territory, or in a place belonging to no one; in short, in any place except the territory of a neutral State. Is the vessel of a neutral nation on the high seas such a place?

of any vessel which, by treaty or the law of nations, ought not to remain within the United States.

SECT. 10 requires the owners or consignees of armed vessels about to sail from the United States, owned in whole or in part by citizens of the United States, to give security that the same shall not be employed by them in hostilities against any State with which the United States is at peace.

Sect. 11 authorizes revenue officers to detain any vessel, manifestly built for warlike purposes, whose cargo shall consist chiefly of munitions of war, when the circumstances render it probable that she is intended to be used in hostilities against any State with which the United States is at peace.

III. JUDICIAL HISTORY OF THE SUBJECT IN THE UNITED STATES.

United States v. Gideon Henfield (Wheaton's State Trials, 49). The defendant was an American sailor, who shipped in the French privateer Citoyen Genet at Charleston, while France was at war with England, and was indicted at common law for enlisting in violation of the treaties of the United States. The judges ruled that the act charged was a crime. In defence, it was shown that he enlisted before the proclamation, in ignorance of the law, and, when told of its illegality, had expressed his regret. He was acquitted by the jury. This trial was promoted by the administration of Washington with earnestness, Hamilton lending his aid out of court. It was regarded as important, chiefly because M. Genet undertook to protect Henfield from trial, and to deny that his act was an indictable offence. It is the earliest important State trial in the United States, and was held in July, 1793.

The Betsey (Bee, 67). An American-built vessel, the Hector, was fitted out and commissioned at Charleston by Genet, and sent to sea as the French privateer Vainqueur de la Bastile; cruised and returned to United States, and was detained and dismantled by the United States Government at Wilmington, N.C.; and sailed thence, unarmed, as a foreign vessel. In Hayti, she was equipped and commissioned by the French authorities, in August, 1794, and brought a prize, the Betsey, into Charleston, in 1795. The District Court held, that, under the circumstances, the fitting-out, by aid of which the capture was made, was not in violation of our laws or rights.

The Brothers (Bee, 76). It was held that the repairing of the waist, and cutting two ports in it for guns, at a port of the United States, of a vessel fitted out and commissioned as a vessel of war when she entered, did not constitute an augmenting of her force, within the meaning of the act of 5th June, 1794. This was a claim by the British Consul for the restoration of a prize taken by the Port de Paix.

The Nancy (Bee, 73). The French privateer Fonspertius came to Charleston unarmed: leave to arm her was asked and refused. After a cruise, she returned with guns mounted and a prize. The court restored the prize; being satisfied that she did take on board the guns at Charleston to be used as her armament, and that the act was an illegal augmentation of force.

The Betsey Cathcart (Bee, 292). The District Court restored the prize taken by the French privateer Citoyen de Marseilles, on the ground that the privateer had, before the capture, augmented her force by taking in additional guns at a port of the United States.

The Sloop Betsey (Dallas, iii. 6). It was held by the Supreme Court, that no foreign consul could adjudicate within the United States upon a prize; and that the United

Distinction be

§ 441. A distinction has been here taken between the tween public public and the private vessels of a nation. In respect to and private its public vessels, it is universally admitted, that neither

States District Courts in Admiralty had jurisdiction to inquire, on petition of the owner of a vessel brought into our ports as prize to a foreign cruiser, whether the capture was made in violation of our own sovereign rights, and, if so, to restore the prize to the petitioner. The charge in this case was, that the captor, the French privateer Citoyen Genet, had been fitted out at Charleston, in violation of our rights and duties as a neutral sovereignty.

Le Cassius, previously Les Jumeaux (United States v. Peters, Dallas, iii. 121; and United States v. Guinet, Wheaton's State Trials, 93). Les Jumeaux was originally a British cutter engaged in the Guinea trade, pierced for twenty guns, ten on a side; but only carrying four guns in broadside, and two swivels. Passing into French · ownership, she came from the West Indies to Philadelphia in December, 1794, with a cargo, and entered at the custom-house as a merchantman. She was in a rotten state, and work was then begun upon her by carpenters. She was at this time owned by Le Maistre, the first French purchaser, and seven other Frenchmen, in joint stock. Her twenty ports, for which she was originally pierced, were opened, and some changes were made in her upper deck. These attracted the attention of the United States officers, who communicated their suspicions to the Secretary of War. He directed the recent equipments to be removed, and the vessel to be restored to the condition she was in, as respects warlike capacity, when she arrived. Under that order, her ports were closed, and the new ringbolts in the deck were unfixed. She then sailed openly from Philadelphia in the same condition in which she arrived there, with her four guns and two swivels, in ballast, with an ordinary merchant-crew, and clearing at the custom-house for St. Domingo. Off the Delaware bank of the river, about sixty miles below Philadelphia, she took on board four guns, some muskets, and other articles, and a number of men. At the same time, the pilot-boat returned to Philadelphia, and made an effort to take down six more guns, by night. The public officers seem to have been very vigilant, stopped the boat, and seized the guns and the persons on board. These facts being brought to the attention of the government, orders were sent to follow the vessel and arrest her; and a militia force from Delaware was sent down in a cutter. Les Jumeaux was found to have a large crew on board, well armed, and her guns trained. Partly by the exhibition of superior force, and partly by a fraud practised upon the commander of the party, Les Jumeaux succeeded in getting to sea. This was Jan. 2, 1795.

The Secretary of War, Mr. Pickering, immediately issued an order, dated Jan. 6, 1795, to the governors of all the seaboard States, reciting the facts, with a description of the vessel, with directions to seize her and her commander, if she should come into any of their ports. Proceedings were had against the guns and tackle attempted to be taken down in the pilot-boat, under the clause of the act of 1794, which forfeits materials procured for the purpose of fitting out a vessel to cruise, &c.; and they were condemned and sold.

The government then procured an indictment against one Jean Etienne Guinet, a French resident in Philadelphia, on the charge of having been knowingly concern ed in unlawfully fitting out and arming this vessel with the intent that she should be employed in the service of the French Republic to cruise against the subjects and property of the King of Great Britain, &c. Guinet pleaded not guilty. The trial was had in the Circuit Court of the United States for Pennsylvania, before Judge Patter son. The defence was placed chiefly upon two grounds,—first, that, if an unlawful act

the right of visitation and search, of capture, nor any other belligerent right, can be exercised on board such a vessel on the high seas. A public vessel, belonging to an independent sovereign, is had been done, the defendant was not cognizant of it; and, secondly, that there was not sufficient evidence that the vessel was intended by any one to cruise in the French service or against British property, or that the sending of guns on board, or the endeavoring to send, was done with such intent, the vessel being a private merchantman, with no pretence of a commission, and no proof of an intent to get one from the French Republic. Judge Patterson instructed the jury that the converting a slightly armed merchantman into a vessel better suited and designed for hostilities, by adding to her warlike force, was as much a fitting-out and arming within the act as if the vessel had not been originally armed at all. He submitted to the jury whether the guns, &c., put on board secretly, in connection with the secret increase of her crew and the clearance at the custom-house as in ballast, could have been intended as merchandise, and, if not, whether they could have been any thing else than part of an equipment for war. As the United States were not at war, and France was, and the owners and managers were French, and the affair was secretly conducted, he said the jury were authorized to find that the intention was that she should be employed in the service of the French Republic to cruise against the nation with which she was then at war. The jury found a verdict of guilty, and Guinet was sentenced to one year's imprisonment and four hundred dollars fine.

This was the first conviction under the act of 1794, and the indictment was found in less than a year after the passage of the act.

Les Jumeaux proceeded directly from the Delaware to San Domingo, then a French island, attempting no acts of hostility on her passage, where she was sold to the French Government by her owners, Feb. 7, 1795, by a regular transfer; her armament was completed, and she was regularly commissioned as a ship of war of the French Republic, under the name of the Cassius. One Samuel Davis, an American, was commissioned as a lieutenant in the French navy, Feb. 10, and put in command of her; and she went upon a cruise. May 20, 1795, she captured the brig William Lindsay, and sent her into a French port, where she was regularly condemned as prize, by a prize court. Aug. 4, 1795, she came to Philadelphia, reported as a French vessel of war; and there Messrs. Yard and Ketland, the owners of the William Lindsay, libelled her in a civil suit in the Admiralty to recover damages for an illegal capture of that vessel. This suit was commenced Aug. 5, within twentyfour hours of her arrival. M. Adet, the French Minister, on the 9th August, complained of this seizure of a French vessel of war as a violation of the treaty with France and of sovereign rights accorded by all nations. The government replied, that, under our Constitution, the executive could not take a vessel out of the custody of a court, which held it regularly to try a question of private right. The United States Attorney suggested to the French Minister that he could himself release the vessel from judicial custody, in a regular and ordinary way, by giving security for her value, as this was a private suit for damages. This he refused to do; and, by letter of 18th August, he requested the United States Government to cause such security to be given. He added that the Cassius was on an important mission, which might fail by this arrest, and intimated the liability of the United States therefor. This proposal was rejected by the United States Government, on the ground that the question whether she was really and bona fide a public ship of war, or only ostensibly so, was a fact to be determined; and that, if the government intervened to release her, and permitted her to go to sea without satisfying itself as to the condition and rights of the vessel, when