tinued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy. (b)

dency. Vessels were constantly sent from the United States, which were afterwards found engaged under the South American flags, as privateers. Sometimes their prizes came into our jurisdiction, and sometimes the persons concerned returned here. Frequent causes arose in our courts, either in the way of criminal prosecutions, or of civil proceedings for the restoration of prizes. There was less cause, however, for executive action, as we had now what we had not during Washington's difficulties,statute laws on the subject, a settled course of judicial proceedings, and an adequate civil force; and it had been settled that restitution of prizes could be made in private suits, without governmental authorization. The number of vessels restored by such suits to Spanish and Portuguese owners, as having been captured by vessels illegally fitted out here, was very large.

The Spanish Government complained that a military expedition had been fitted out in New York under Miranda, in 1806, to operate against Spain in South America. There seems no doubt that this might and ought to have been prevented by us. They also complained that privateers were largely fitted out, in the Southern States, to cruise against Spanish commerce under provincial flags. It has been seen that a new clause was introduced into our neutrality acts, at the request of the Spanish Minister, so as to include the provinces which were in civil war with Spain. The correspondence admits the disposition of the executive to do its duty in respect to these privateers, but complains that the results were unsatisfactory, and the evil not effectually repressed. The United States Government's replies are to the effect that, having made satisfactory laws and provided adequate tribunals, and no case of neglect or refusal to do its full duty in preventing the outfitting of such vessels, or the restitution of prizes taken by such vessels, being pointed out, the United States is not liable for the acts of its citizens, or of privateers fitted out in its territory, if the acts were done beyond its jurisdiction. As many as seven citizens were prosecuted, by authority of the government, for violation of neutrality; and stringent orders were issued to the proper officers in all the ports. It is not to be denied that they were often eluded, and that great wrongs were done by individuals. The United States had, at this time, large claims against Spain, arising out of the wars of the French Revolution. The result of a long correspondence was the Spanish treaty of 22d February, 1819. This treaty, which included the cession of Florida, was expressed as intended to be a “reciprocal renunciation of all claims for damages or injuries," up to the time of signing. It expressly includes (Art. IX) a renunciation, on the part of Spain, of "all injuries caused by the expedition of Miranda, fitted out and equipped at New York;" and of "all claims of Spanish subjects upon the government of the United States arising from unlawful seizures at sea, or within the ports and territories of the United States;" and of "all claims of subjects of His Catholic Majesty upon the government of the United States, in which the interposition of His Catholic Majesty's Government has been solicited, or which may have been made to the Department of Foreign Affairs of His Majesty, or to his minister in the United States." As to Spain, then, it is understood that the whole subject was satisfactorily settled by a reciprocal renunciation of claims, as offsets, and no decision has ever been or can now be had, political or judicial, as to

(b) Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Wheaton's Hist. Law of Nations, 111-114.

Goods of board the

a friend on

enemy, lia

§ 444. Although by the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, are liable to capture ships of an and condemnation, yet the converse rule, which subjects ble to conto confiscation the goods of a friend, on board the vessels the prize of an enemy, is manifestly contrary to reason and justice. It may, indeed, afford, as Grotius has stated, a presump

fiscation by

codes of

some na

tions.

whether, for any such claims, the United States were actually liable. (Letters of Señor Onis, of January, 1817; 24th October and 16th November, 1818; and 7th February, 1819; and of Mr. Adams, of 13th February, 1819.)

Our relations with Portugal were not adjusted to her satisfaction. On the 20th December, 1816, M. Correa de Serra presented to Mr. Monroe, Secretary of State, a strong case of violation of neutrality, in Baltimore. He was careful to acquit the executive of neglect or unwillingness, and disdains asking for compensation, but suggests additions to our neutrality laws of a preventive character. These were at once acceded to by the executive, and passed by Congress in the act of 3d March, 1817. M. de Serra always expressed himself satisfied with the legislation adopted. (Letter of 4th February, 1819, and Mr. Adams's reply of the same month.) March 8, 1818, M. de Serra presented cases of vessels captured by one of these cruisers, which had escaped from the United States before the passage of the act. To this letter, Mr. Adams, Secretary of State, replied (letter of 14th March, 1818), that, as the United States had “used all the means in their power to prevent the fitting-out and arming of vessels," and had "faithfully carried into execution the laws enacted to preserve inviolate the neutral obligations of the Union," it "could not consider itself bound to indemnify individual foreigners for losses by capture over which the United States have neither control nor jurisdiction. For such events, no nation can in principle, nor does in practice, hold itself responsible." He reminds the minister that the Admiralty Courts will and do restore prizes within their reach, captured in violation of our laws, and that individuals will be and have been prosecuted criminally. Mr. Adams, Nov. 20, 1818, requested the Portuguese Minister to furnish a list of the persons chargeable with violations of our laws to the injury of Portugal, and of the witnesses against them, for the purpose of prosecution; and prosecutions were ordered by the government in cases which seemed sustained by the evidence.

Early in 1819, the Portuguese Minister brought forward a grievance of a new character. This was, that the flag of José Artigas, chief of the Banda Orientale, was allowed to be shown in Baltimore on prizes sent in there; and that privateers of that flag were recognized as belligerents, when, as he alleged, Artigas had no seaport in South America under his control. In November of that year, he presented lists of injuries done to fifty Portuguese vessels, and declared, that, in one port alone of the United States, twenty-three ships had been fitted out as privateers.

July 16, 1820, the Portuguese Minister proposed that a commission be appointed by the two powers to confer and agree on what reason and justice demanded. This proposal was declined (letter of 30th September, 1820), upon the ground, that, no charge of neglect or refusal being made against the government, and the government being satisfied that it had done its duty, the United States could not be responsible for acts done beyond its jurisdiction and control; that criminal prosecutions were duly made by the government, on the presentation of proof, and that the civil courts would make restitution of prize property within their reach; and that, beyond these remedies, no

tion that the goods are enemy's property; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presumptiones juris et de jure, and which are conclusive upon the party.

But however unreasonable and unjust this maxim may be, it has been incorporated into the prize codes of certain nations, and enforced by them at different periods. Thus, by the French ordi

nation was required to make compensation, which had done its duty in providing laws and enforcing them.

This demand for a commission was renewed in 1822, and declined on the same grounds. It was again renewed in 1850, and was met with an answer by Mr. Clayton, Secretary of State, 30th May, 1850, affirming the position of the United States Government in 1820 and 1822, and declining to re-open the discussion. There was a rejoinder by the Portuguese Minister, of Nov. 7, 1850. Here the correspondence closed.

There can be no question, that, for a time, violations of our laws by the fitting-out of vessels in our ports, especially in Baltimore and other Southern cities, to cruise against Portuguese commerce, were frequent and open, and that Portugal suffered greatly from them. On the other hand, it is true that the United States made special laws, satisfactory to Portugal, at her request; prosecuted criminally both citizens and foreigners; made restitution of prizes; and suppressed by force the establishments of Amelia Island and Galveston, beyond our territory; and that the Portuguese Minister did not allege that the executive failed of its duty, but, on the contrary, spoke of its "conscientious earnestness." It seems, also, from the reports of claims made in 1850 (vide infrà), that these measures of repression were successful, as scarcely a case of claim was made after 1820. He suggested no remedy or means to be adopted; and the government took the position, that it had acted in good faith, and with due dili gence, in prosecuting all persons properly charged with offences, on probable testimony; and that the courts were open and effectual to give redress in the way of restitution, whenever the law of nations required it. On the subject of the permission of the Artigas flag, nothing appears to have been done by our government; yet the subsequent correspondence does not seem to refer to it. Artigas had possession of the entire republic of Uruguay, including Monte Video and other ports, when he was at war with Portugal. The Portuguese Minister probably refers to a condition he may have been reduced to, by stress of war, at some particular period of the contest.

The real difficulty seems to have been that the public sympathy for the South American struggle was so strong and general, and the appeals to enterprise and cupidity so tempting, that the matter got, for a time, quite beyond the repressing powers which were brought to bear; and the Portuguese Government either was not willing to, or could not justly, charge the government with intentional remissness, at the time. This furnished the United States with a position for refusing to agree to a commission, whose sole duty, on that state of relations, would be to determine whether any thing, and what, should be paid by the government for Portuguese losses. The charge of remissness made first in 1850, after thirty years, by another generation of diplomatists, was tardy and inconsistent. The diplomatic position of the United States seems to be defensible, within its exact limits; yet, in point of fact, Portuguese subjects suffered great wrongs from citizens of the United States, committed in violation of our laws and of their rights.

In 1848, during an armistice in the hostilities between Denmark and the Germanic

nances of 1538, 1543, and 1584, the goods of a friend, laden on board the ships of an enemy, are declared good and lawful prize. The contrary was provided by the subsequent declaration of 1650; Confederation, the latter power fitted out a steamer at New York to be used as a ship of war. To the objection of the Danish Minister, the representative of the Confederation replied that the vessel had been ordered independently of this war, and was intended for defensive purposes during the armistice. This was not deemed satisfactory by the United States Government; and she was not permitted to proceed to Germany until security had been given that she should not be employed as a vessel of war during hostilities with Denmark, including all periods of armistice. (Annuaire des deux Mondes, 1852-3, p. 485. Ex. Doc. 31st Cong. No. 5. Opinions of Attorneys-General, v. 92.)

During the Crimean war, in 1855, the British Consul at New York furnished affidavits charging that a large vessel, called the Maury, fitting out there, was intended to cruise under the Russian flag against British commerce. On the receipt of these documents, the United States Attorney, although he did not think the evidence credible, yet, in order to give opportunity for a complete examination, libelled the vessel, and placed her in the custody of the marshal. After a full examination, the British Consul was satisfied, and withdrew the complaint. (Senate Doc. 34th Cong. 238.)

In 1866, on an affidavit of the Spanish Consul, charging that the steamer Meteor was fitted out to cruise against Spanish commerce, under the Chilian flag, she was arrested at once by the United-States Attorney at New York, without waiting for authority from Washington. A libel was filed, under like circumstances, in Boston, the same year, against the steamer Cherokee. Indeed, it is the practice for the local law officers of the United States to treat the Neutrality Acts like other penal statutes, and, on exigencies, to libel and arrest vessels about to depart, upon affidavits showing only probable cause. And, where the Department of State acts, its test is only probable cause. (Mr. Seward's letters, in the cases of the Meteor and Cherokee.)

SUMMARY.

The results of the legislative, executive, and judicial proceedings in the United States on this subject, may be stated, in substance, thus:

The United States acknowledges an obligation to preserve impartiality between foreign belligerents. Overt acts of hostility committed within its jurisdiction, being violations of its own sovereign authority, it will repress, on its own account. It will also prevent or punish them, as a measure of justice to foreign interests lawfully within our jurisdiction and protection which suffer from them. One mode of redress is to take possession of any property thus captured, and found within our jurisdiction, and restore it to the injured party. Where restitution cannot be made, the government may make the aggression a cause of complaint against the power responsible for it, and obtain compensation for the benefit of the party injured. Our government has not been called upon to meet the question, what its own liability would be in case it did not succeed in obtaining compensation from the power making the aggression, having itself failed to prevent the act, in a proper case, not from neglect or unwillingness at the time, but from want of an adequate force; and it is no part of the purpose of this historical note to suggest rules to meet possible cases.

The government also recognizes its obligation to prevent a belligerent, or its own people, from doing proximate acts of hostility within our territory. As violations of our own sovereignty, or as endangering our own peace, such a case is purely one of internal policy; but, as respects others, this obligation arises out of the fact, that, as to such matters, it is impossible to preserve impartiality, and to create a balance of opportunities for the respective belligerents. Either one that suffers, therefore, from such an act, may complain, that, when permitted, it is a violation of impartiality as well

but by the marine ordinance of Louis XIV., of 1681, the former rule was again established. Valin and Pothier are able to find no better argument in support of this rule, than that those who lade their goods on board an enemy's vessels thereby favor the com

as of neutrality. It is assumed that a line can be practically established reasonably to distinguish proximate acts of hostility from the rights of trade and asylum, and is so established by the law of nations. Our obligation arises from the law of nations, and not from our own statutes, and is measured by the law of nations. Our statutes are only means for enabling us to perform our international duty, and not the affirmative limits of that duty. We are as much responsible for insufficient machinery, when there is knowledge and opportunity for remedying it, as for any other form of neglect. Indeed, a nation may be said to be more responsible for a neglect or refusal which is an imperial, continuous act, and general in its operation, than for neglect in a special case, which may be a fault of subordinates.

As to what shall constitute unlawful proximate acts, our rule has been to prohibit the enlistment here of men for belligerent service, or a contract made here to go abroad and there enlist; or the accepting here of a belligerent commission for service abroad. But we allow a vessel of war to enlist here subjects of its own sovereignty, transiently in the United States, to serve on board that vessel.

In case of vessels already armed and commissioned by a foreign belligerent, whether public vessels or privateers, they shall not in our ports increase their capacity for hostile purposes, whether of offence or defence. This rule may be violated by enlisting men, or by adding to the physical efficiency of the vessel in a respect which is not purely nautical, and such as a merchant-vessel would not require. We have not found it necessary to restrict the stay of belligerent cruisers, or their prizes, in our waters, to less than the terms of asylum usually allowed to public vessels in time of peace.

As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, towards such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of the preparations, or the extent to which they may have gone, and although his attempt may have resulted in no definite progress towards the completion of the preparations. The procuring of materials to be used, knowingly and with the intent, &c., is an offence. Accordingly, it is not necessary to show that the vessel was armed, or was in any way or at any time, before or after the act charged, in a condition to commit acts of hostility.

On the point of the intent, more nicety and discrimination are necessary. If the person charged has himself the control of the vessel, to put her into foreign belligerent service, the question of the intent to employ her is simple. If he has not, he is still chargeable with doing acts, or being knowingly concerned in the doing of acts, of or towards the preparation, with the intent that the vessel shall be so employed, though others may control her during the preparations. But the intent must be that she shall be so employed; and the intent must be a fixed and present intent, and not a wish or desire merely that she may be. If there is a contingency, it must, to exculpate the party, be one which forms a condition precedent to the intent, and not merely a condition precedent to the employment, or a condition subsequent which may defeat the intent. Thus, if the owner sends a vessel, not completely ready for hostile operations, with instructions to her commander to complete her preparation and obtain letters of marque in the port of destination, and, in