negative of both questions." He referred to the case of Capt. Daniel Turner, who, April 7, 1830, cut out the Buenos Ayrean privateer from a neutral harbor in St. Bartholomew, on representations of her having plundered an American vessel and the refusal of the neutral power to give her up; and to the case of Commodore David Porter, who, June 3, 1825, attacked a town in Porto Rico, landing and compelling the submission of the local authorities for having imprisoned Lieutenant Platt, whom he had, while in search of pirates, dispatched thither in search of supposed stolen goods. In both these cases, said the judgeadvocate, "the invasion of national rights met with condemnation and rebuke from the Government of the United States."

с

Captain Voorhees, in his defense, stated that in capturing the Sancala he acted upon a communication brought to him by a midshipman, from the owner of the Rosalba, to the effect that a Buenos Ayrean schooner, sailing under Montevidean colors, had pursued and captured several Montevidean fishermen and had fired a volley of musketry into the bark. This, as reported, he considered an act of piracy, in which the commander of the Argentine squadron had, by approving and adopting it, made himself an accomplice. He also relied much on the case of the Marianna Flora. He referred to the Sancala as a "daring marauder," and cited Klintock's case to show that Oribe, not having been recognized as a belligerent by the United States, was not entitled to belligerent rights. He also said: "I received the highest testimonials of the approbation of my proceedings from the highest commanding officers in the English, French, and Brazilian squadrons. High commendation was bestowed upon me by the agent of my Government at Montevideo and by the American minister at Rio de Janeiro, and finally it was in the fullest and most distinct manner sanctioned and approved by my commanding officer, Commodore Turner, whose orders I am now charged with violating."

The court-martial found the accused guilty on each of the five specifications, and sentenced him to be reprimanded in a general order by the Secretary of the Navy and to be suspended for three years. The verdict was approved and the sentence confirmed. The Secretary of the Navy, in carrying the sentence into effect, said: "I could desire not to add one word to the judgment of the court. But justice to our own Government, the relations of amity subsisting with the Argentine Republic, our avowed policy of neutrality between foreign belligerents, respect for the rights of a foreign flag, a firm adhesion to the humane principles of the modern code of maritime law, ever

* * *

a The judge-advocate cited various writers on international law, and the case of the Invincible, opinion of Attorney-General Butler, May 17, 1836, 3 Op. 120. b11 Wheaton, 1.

United States v. Klintock, 5 Wheaton, 144.

d MSS. Navy Department.

advocated and insisted upon by the American people, the determination to demand nothing but what is right, especially from a weaker power than our own, compel me to disavow and reprove your conduct as set forth in the charge and specifications of which you have been found guilty." A transcript of this letter and of the finding and sentence of the court-martial were communicated to the Argentine minister, with an expression of the hope that his Government would see in it a satisfactory proof of the disposition of the United States “to respect the rights of Buenos Ayres."

Rights and Duties

6. PERU THE VIVANCO INSURRECTION.

§ 64.

*

*

*

*

*

*

"I shall not undertake to settle any general principle by which the true character of an insurrectionary movement in a Nonaction of Foreign country may be tested, and under what circumstances Governments; it becomes a contest for a change of government, of their Citizens. giving to it the attributes, together with the first consequences, of a civil war. It is sufficient to say that the situation of the contending parties in Peru, and the avowed objects of the revolutionary leaders, together with the extent of their operations, and also the extent and importance of the portion of the Republic which they occupied and governed at different periods of the struggle, made that contest a civil war. You consider some act of a foreign government recognizing the existence of such a war to be necessary before its citizens can claim the protection which the United States demand for their own. Cases have been put, and may be put again, which, in the opinion of high authorities, require such a measure before they carry with them the consequences attached to the condition of civil war. Such cases may relate to the declaration of a blockade, to a claim to search vessels as neutrals, and to the exercise of other belligerent powers assumed by the hostile rulers. By what public act, whether proclamation or otherwise, this recognition must take place I have not found laid down. I am not aware that in this country any solemn proceeding, either legislative or executive, has been adopted for the purpose of declaring the status of an insurrectionary movement abroad, and whether it is entitled to the attributes of civil war, unless, indeed, in the formal recognition of a portion of an empire seeking to establish its independence, which, in fact, does not so much admit its existence as it announces its result, at

a Mr. Bancroft, Sec. of the Navy, to Capt. Voorhees, Aug. 12, 1845, MSS. Navy Dept.

Mr. Buchanan, Sec. of State, to Gen. Alvear, Oct. 25, 1845, MS. Notes to Argentine Confederation, VI. 17.

During the Vivanco insurrection. See Moore, Int. Arbitrations, II. 1593 et seq.

But

least so far as regards the nation thus proclaiming its decision.
that is the case of the admission of a new member into the family of
nations. Such is not the condition of Peru. She had already attained
that position, and her intestine difficulties arose out of an effort to
change the administration of the government, which was a matter of
purely domestic concern, not touching foreign powers, unless in the
progress of the contest their interests were brought into question. So
long, therefore, as such a contest preserves its domestic character there
is no necessity for external interposition unless, indeed, there be a
determination to take part with and aid one of the parties by the
direct application of force or by the exertion of political influence.
Such has not been the policy of the United States, and they carefully
abstained from all interference with the troubles in Peru, content to
abide the decision which its people might make; and this Government
permitted the diplomatic intercourse of the two countries to continue
unchanged, as a measure demanded by their mutual interests and not
as an acknowledgment of the pretensions of either of the rival parties.
It is, therefore, unnecessary to advert to the effect of a formal recog-
nition by the Executive, and how far that act of political power would
be obligatory upon the courts of justice and binding upon the rights
of individuals. Whether a civil war was prevailing in Peru is a ques-
tion of fact, to be judged by the proofs, as the existence of a war
between two independent nations is a similar question, to be determined
in the same manner, whereas, as is often the case, at least in this
country, there is no public authoritative recognition of it."

Mr. Cass, Sec. of State, to Mr. Osma, Peruvian minister, May 22, 1858, S. Ex.
Doc. 69, 35 Cong. 1 sess. 17, 20, 24–25.

See opinion of Attorney-General Black, 1858, 9 Op. 140.

"Mr. Osma insists, however, that a civil war in one country can not be known to the people of another but through their own government; that the existence or nonexistence of civil war is a question not of fact, but of law, which no private person has a right to decide for himself; that foreigners must regard the former state of things as still existing, unless their respective governments have recognized the change. But I am very clearly of the opinion that an American citizen who goes to southern Peru may safely act upon the evidence of his own senses. If he sees that the former government has been expelled or overturned by a civil revolution, and a new one set up and maintained in its place, he can not be molested or even blamed for regulating his behavior by the laws thus established. Nay, he has no choice; the government de facto will compel his obedience. It will not give him leave to ignore the matter of fact while he waits for the solution of a legal problem at home. Besides, if he resists the authority of the party in possession on the ground that another has the right

of possession, he departs from his neutrality, and so violates the duty he owes to both the belligerents as well as to the laws of his own country."

Mr. Cass, Sec. of State, to Mr. Clay, minister to Peru, Nov. 26, 1858, MS. Inst.
Peru, XV. 243.

See, also, Br. & For. State Papers (1859-1860), L. 1126; id. (1860, 1861), LI.

ment; Question of Blockade.

7. MEXICO.
$ 65.

"I have the honor to inform you that both Mr. McLane, our minister to Mexico, and Mr. Mata, the Mexican minister here, Miramon Govern- have stated to this Department that there is reason to believe that arrangements are making by what is known as the Miramon government of Mexico to establish a blockade of Vera Cruz and other ports upon the Gulf of Mexico. The President has decided that no such blockade will be recognized by the United States, and I have to request that the necessary orders for the protection of American commerce in the Gulf against any such attempt may be given to the proper naval officers."

Mr. Cass, Sec. of State, to Mr. Toucey, Sec. of the Navy, March 10, 1860, 52
MS. Dom. Let. 37.

Juarez and Maximilian.

"This Government has long recognized, and still does continue to recognize, the constitutional government of the United Governments of States of Mexico as the sovereign authority in that country, and the President, Benito Juarez, as its chief. This Government, at the same time, equally recognizes the condition of war existing in Mexico between that country and France. We maintain absolute neutrality between the belligerents, and we do not assume to judge, much less to judge in advance, of the effect of the war upon titles or estates."

Mr. Seward, Sec. of State, to Mr. Geofroy, French minister, April 6, 1864, Dip.
Cor. 1864, III. 212.

8. THE CONFEDERATE STATES.
§ 66.

Mr. Seward, in his instructions to Mr. Adams, of May 21, 1861, Action of Various stated that "a concession of belligerent rights" by Powers; Position Great Britain to the Confederate States would “be liaof Mr. Seward. ble to be construed" as a recognition of their independence, and would not “pass unquestioned by the United States."a Subsequently, having heard of the Queen's proclamation of neutrality

a Dip. Cor. 1861, 89. A facsimile of Mr. Seward's draft of these instructions, with President Lincoln's interlineations and corrections, is given in an article entitled "A famous diplomatic dispatch," in the North American Review, April, 1886.

of the 13th of May, Mr. Seward observed that its issuance was **remarkable”—first, because it was made on the very day of Mr. Adams' arrival in London, without according him the reception and interview for which his predecessor had arranged, and, secondly, because of "the tenor of the proclamation itself, which seems to recognize, in a vague manner, indeed, but does seem to recognize, the insurgents as a belligerent national power." a In an instruction to Mr. Dayton, minister to France, of May 30, 1861, Mr. Seward said: “The United States can not for a moment allow the French Government to rest under the delusive belief that they will be content to have the Confederate States recognized as a belligerent power by states with which this nation is in amity." The French declaration of neutrality was issued June 10, 1861, that of Spain June 17, and that of the Netherlands in the same month. The Emperor of Brazil issued a similar declaration August 1, 1861. Declarations, decrees, or notifications were issued by other maritime powers. In a conversation with Earl Russell, June 12, 1861, Mr. Adams, referring to the British recognition of Confederate belligerency, observed that, "at any rate, there was one compensation, the act had released the Government of the United States from responsibility for any misdeeds of the rebels towards Great Britain. If any of their people should capture or maltreat a British vessel on the ocean, the reclamation must be made only upon those who had authorized the wrong. The United States would not be liable." In April, 1862, Mr. Adams and Mr. Dayton were respectively authorized, in their discretion, to submit to the British and French Governments certain representations looking to the revocation or "revision" of their recognition of Confederate belligerency.

"This Government insists now in these cases, as it insisted in the beginning of our domestic strife, that the decisions of the Emperor's

a Mr. Seward, Sec. of State, to Mr. Adams, minister to England, June 3, 1861, Dip. Cor. 1861, 97.

Dip. Cor. 1861, 215. See also Mr. Seward to Mr. Dayton, June 17, June 22, and July 6, 1861, id. 224, 229, 231–234.

e Moore, Int. Arbitrations, I. 595.

d Mr. Adams, minister to England, to Mr. Seward, Sec. of State, Dip. Cor. 1861, 87, 89; Lawrence's Wheaton (1863), 44. "It is easy to see what they [the United States] gained [by the acknowledgment of Confederate belligerency]. They gained the liberty to exercise against British ships on the high seas the rights of visit and search, of capturing contraband, and of blockade--rights which spring solely from the relation of belligerent and neutral, and which the neutral acknowledges by recognizing the existence of that relation. The advantages reaped in maritime war from the exercise of such rights fall, where there is a disparity of force, into the hands of the stronger belligerent; where the disparity is great he has a monopoly of them, for he is able to shut up his enemy in port and drive him from the sea." (Bernard's Neutrality of Gr. Brit. 167.)

Mr. Seward, Sec. of State, to Mr. Adams, minister to England, April 16, 1862, Dip. Cor. 1862, 73; Mr. Seward, Sec. of State, to Mr. Dayton, minister to France, April 17, 1862, Dip. Cor. 1862, 333.