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, 252). 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

Distinc

tion 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 concerned 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 Patterson. 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 couft. 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 bond 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

exempt from every species of visitation and search, even within the territorial jurisdiction of another State; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation. (a)217

she had once notoriously added to her armament in our ports, the question might arise whether the United States might not make themselves responsible for all the damage she might do and had done. The government was not willing, having such a vessel here in custody, to interfere actively to release her, until the facts as to her conversion into a French public ship should be determined, and the possible obligations of the government be settled to its own satisfaction.

In the District Court, at the same time, Messrs. Yard and Ketland had arrested Davis, the commander of the Cassius, to answer for the damages for the illegal capture of the William Lindsay. The French Minister demanded the release of the commander, as well as of the vessel. The British Minister also intervened, and urged the government to seize and retain the Cassius as having been fitted out in violation of neutrality. In this state of things, the government instructed the United States Attorney, Mr. Rawle, to watch the cause, on the part of the government, and to see that the fact of her being a bonâ fide French public ship be duly ascertained; and, if so, that the question of her consequent exemption from civil proceedings be suggested and presented, as well as the question whether the court could try the validity of her captures, if made jure belli, and sustained in a regular French prize court. So, as to the privilege of her commander, if duly commissioned in the French service.

Mr. Rawle accordingly filed a suggestion of her public character and consequent exemption in the District Court, and praying for her release, and for the discharge of Davis, on the same ground. It was suggested to the French Minister that this ground of defence might be interposed by him in the same court; but he declined to act in the judicial tribunals, and confined himself to the political department of the government. At the same time with this suggestion by the United States Attorney in the original cause in the District Court, Davis, the commander, filed, in the Supreme Court of the United States, a motion for, a prohibition upon the District Court. In this motion, he alleged that he was a lieutenant in the French navy, and the Cassius a duly commissioned ship of the French navy; that he had captured the William Lindsay under his commission, as enemy's property, and that she had been duly condemned as a prize by a French prize court in San Domingo; and that the Cassius could not be proceeded against, under the law of nations and under the treaties between France and the United States, in a civil tribunal, to answer for such a capture, and that he had the like exemption.

This motion was fully argued, the alleged facts being admitted; and the court granted the prohibition. (United States v. Richard Peters, Judge, &c., Dallas, iii. 121.) This ended the proceedings in the District Court. The libel was dismissed on the 24th August.

It will be seen, that, so far, the questions in the courts did not at all turn upon the illegal outfitting of the vessel, or her violation of our neutrality. The suit was a private suit for damages, for a capture alleged to have been in violation of the laws of war. The reasons of the Supreme Court for granting the prohibition are not given in

(a) Vide ante, §§ 105-107.

[217 See note 63, ante, Exemption of Public Vessels; note 66, ante; and note 67, ante, Impressment of Seamen.]—D.

In respect to private vessels, it has been said the case is different. They form no part of the neutral territory, and, when within the territory of another State, are not exempt from the local juris

the report; but it appears from the writ of prohibition and Mr. Rawle's report, that the ground of the decision was the obvious one, that, as the prize had been regularly condemned by a French prize court, and had never been within our jurisdiction, a civil tribunal of this country could not retry the legality of the capture under the laws of war, and decree damages against the capturing vessel or her commander. This is so plain, that it is said that the counsel for the libellants offered to drop the suit, satisfied that the prize had been so condemned and the vessel duly commissioned; and Mr. Pickering tells M. Adet (Oct. 1, 1795), that, if the counsel for the Cassius had suggested and proved in the District Court the facts he showed to the Supreme Court, the District Court would doubtless have dismissed the libel.

This ended the first stage of this now-celebrated case. As the vessel was arrested in this private suit within twenty-four hours of her arrival, no political question as to detaining her and refusing her asylum arose; and the only act of the government consisted in declining to interfere for her release, and in seeing that the facts were duly ascertained, and the law applicable duly considered by the court.

At the same time with the warrant to the marshal from the District Court to release the Cassius, another warrant was placed in his hands from the Circuit Court, requiring him to hold her to answer to an information in the latter court. The act of 1794 gave half the value of forfeited vessels to the informer. Mr. Ketland filed his information for the forfeiture, as it is technically called, qui tam, for the benefit as well of the treasury as of himself, on the ground of the illegal equipment of the vessel the year before. It was at this time settled law that such a proceeding is a private right of the informer, and that the executive government cannot interfere with such a suit by him. It can only decline to receive its half of the forfeiture, after it is decreed. M. Adet, Sept. 22, 1795, writes complaining of this second procedure against the Cassius; says he has been advised that the proceeding is malicious and vexatious on the part of Yard and Ketland, who are British subjects, though naturalized in the United States, and that the terms of the Circuit Court are held at long intervals, so that the suit must be long pending; suggests that her crew are deserting, and she of no service to the French Government; adding, "I have ordered her to be disarmed: from this moment I abandon her to the government of the United States, under the reservation of referring the matter to the French Government."

Mr. Pickering replied (Oct. 1), that the executive could not take this case, any more than it could the preceding, from the judiciary; and that the court had decided that it could not, in this penal proceeding, accept security for the Cassius in lieu of the vessel herself. He states the unquestioned fact, that the Cassius was, the year before, fully equipped and armed in the United States; and that the acts done had been already decided (United States v. Guinet) to be a violation of our laws of neutrality; and adds, that the French Minister ought not to be surprised that this matter should become a subject of judicial inquiry, and the effect of the subsequent alleged transfer to the French government a matter of judicial decision.

The United States Attorney was again instructed to intervene in this cause, as in the preceding, and to suggest for the consideration of the court the defence of the transfer to the French Government, and her commission by it; which he did, as before, in the form of a suggestion. At the next term of the court (April 15, 1796), the Secretary of State, Mr. Pickering, requests M. Adet to furnish the evidence of the bond fide transfer to the French Government, for the use of the United States