against any of the powers at war, or enter upon military expeditions or enterprizes within the jurisdiction of the United States, or usurp and exercise judicial authority within the United States, or where the penalties on violations of the law of nations may have been indistinctly marked or are inadequate; these offences cannot receive too early and close an attention, and require prompt and decisive remedies." "In like manner, as several of the courts have doubted under particular circumstances their power to liberate the vessels of a nation at peace, and even of a citizen of the United States, although seized under a false color of being hostile property, and have denied their power to liberate certain captures within the protection of our territory, it would seem proper to regulate their jurisdiction in these points." Soon after the opening of the sessions Jefferson retired from the cabinet into private life, and did not take any active part in politics for the Tucker, vol. i, next three years. Washington was thus left free to carry out his policy and to establish relations with England on a more friendly footing.

page 526.

The early part of the session was occupied with discussions on the imposition of a protective duty on trade with nations not having commercial treaties with the United States. This measure was aimed at British trade, and was a consequence of the illfeeling that had been occasioned by the British orders in council of June and November, 1793, authorizing the seizure of United States merchant ships laden with corn for France, or found attempting to break the blockade.

The next measure introduced was for the construction of a navy, and was intended as a provision against the contingency of a war with England, although nominally adopted as a defence for American commerce against the Algerine pirates.

On the 27th of March, Mr. Dayton, of New Jersey, offered a resolution for sequestering all debts due to British subjects, as a fund to indemnify citizens of the United States for the unlawful depredations of British crnisers.

Before any vote was taken, Mr. Clarke, of New Jersey, proposed that all intercourse with Great Britain should be prohibited until satisfaction was obtained. While these subjects were pending, the President, on the 4th of April, communicated to Congress a dispatch from Mr. Pinckney, the United States minister in London, forwarding a copy of an order in council of the 8th of January, modifying the instructions to cruisers contained in the previous orders.

American State Papers, vol. i, pago

431.

Tucker. vol. i,

This caused the popular feeling to incline in favor of England, and the republican or anti-federal party abandoned their scheme of commercial retaliation, and assented to a proposition made by the federal- Page 544. ists, that a special mission should be sent to England to settle the various questions in dispute.

Vie, de Wash.

Mr. Jay, Chief Justice of the Supreme Court, a descendant of one of the families which took refuge in England at the time of the ington, par De revocation of the edict of Nantes, a federalist, and friend of the Eng- Witt. lish cause, was selected for the post of envoy.*

He was nominated on the 16th of April but did not arrive in London until the 15th

of June.

The inadequacy of the existing law to deal with even the grossest breach of the neutrality proclamation had been shown a short time previously by the grand jury of Philadelphia having refused to find a true bill against the French vice-consul, Duplaine, (the vice-consul whose exequatur had been withdrawn in October, 1793) for the forcible rescue of the Greyhound.

It was apparent that no time must be lost in amending the law on this subject, and in accordance with the recommendation in the President's message, a bill was now introduced for the purpose.

The bill was vigorously opposed by the republicans, and "would

have been defeated in the Senate, if repeated motions made with that Tucker, vol. i, view had not been lost by the vote of the Vice-President.

page 546.

"The republican party had a majority in the Senate of one member, but the seat of Mr. Galatin, from Pennsylvania, one of that majority, having been contested and set aside on the ground that he had not been a citizen so long as the Constitution required, the two parties were exactly balanced."

This act, which forms the basis of the United States neutrality laws, United States contains ten clauses, and is entitled "An act in addition to the act for the punishment of certain crimes against the United States." (The Statutes at Largo; third Congress, act thus referred to is the act of April 30, 1790, providing for the pun- sess. 1, ch. 50. ishment of high treason and other offenses against the state or indi- June 5, 1794. Britvidnals.) As this act is substantially the same as the act of 1818, and ish State Papers, (Hertslet's,) vol. as in referring to that act attention will be called to the points in iv, page 339. which they differ, it will be sufficient to give here a short abstract of

the different articles.

See the correspondence respecting Mr. Jay's mission, American State Papers, vol. i, pages 470 to 25. (There is an interesting report on the law of prize, furnished to Mr. Jay by Sir W. Scott and Dr. Nicholl, which deserves attention, page 494.)

SECTION 1. Any citizen of the United States, within the jurisdiction of the same, accepting or exercising a commission to serve a foreign prince or state by sea or land, liable to a fine of $2,000, or imprisonment for not more than three years.

SEC. 2. Any person within the jurisdiction of the United States entering himself or enlisting others, or hiring or retaining another person to enlist for the service of the army or navy of any foreign prince or state, liable to a fine of $1,000, or three years' imprisonment. This not to apply to foreigners transiently within the United States. Any person so enlisted giving information within 30 days to be indemnified from pun

ishment.

SEC. 3. Any person within any of the ports, harbors, bays, rivers, or other waters of the United States, fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or attempting to, &c., or knowingly concerned in the furnishing, &c., of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign state, to cruise or commit hostilities against the subjects, citizens, or property of another state, with which the United States shall be at peace, or commissioning any such vessel, to be liable to a fine of $5,000 or three years' imprisonment, and the vessel, tackle, &c., to be forfeited, one half to the informer and the other half to the United States.

SEC. 4. Any person augmenting or procuring to be augmented the force of any ship of war in the service of a state at war with a state with which the United States are at peace, by adding to the number or size of the guns of such vessel, or by the addition thereto of any equipment solely applicable to war, to be liable to a fine of $1,000 or imprisonment for one year.

SEC. 5. Any person within the jurisdiction of the United States setting on foot or preparing any military enterprise against any state with which the United States are at peace, to be liable to a fine of $3,000 or one year's imprisonment.

SEC. 6. District courts to have cognizance of captures made within the waters or within a marine league of the coasts or shores of the United States.

SEC. 7. The militia or land or naval forces to be employed for enforcing this act, for detaining any vessel contravening it and her prizes, and for restoring such prizes when restoration may be adjudged, and for preventing illegal military expeditions.

SEC. 8. The militia, &c., to be employed as shall be necessary to compel any foreign ship or vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, they ought not to remain within the United States. SEC. 9. Prosecution of treason or piracy not to be impaired.

SEC. 10. The act to continue in force for two years, and thence to the end of the next session of Congress.*

This act afforded an answer to M. Genet's pretensions and to Mr. Hammond's complaints. It now only remains to be seen how the British claims acknowledged in Mr. Jefferson's letter of the 5th of September, 1793, were disposed of.

This was done by the insertion in the treaty concluded by Mr. Jay American State on the 19th of November,t 1794, of articles providing for the appointPapers, vol. i, ment of commissioners to consider the compensation to be awarded page 520. (Article VII) in cases of complaints made by United States merchants of loss and damage sustained "by reason of irregular or illegal captures or condemnations of their vessels and other property under color of authority or commissions from his Majesty;" and also in cases of complaints of his Majesty's subjects, "that in the course of the war they have sustained loss and damage by reason of the capture of their vessels and merchandise taken within the limits and jurisdiction of the States, and brought into the ports of the same, or taken by vessels originally armed in ports of the said States,"

*

"where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793." And (Article XXI) it is likewise "agreed that the subjects and citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign prince or state," &c.

"ART. XXIV. It shall not be lawful for any foreign privateers, (not being subjects or citizens of either of the said parties,) who have commissions from any other prince or state in enmity with either nation, to arm their ships in the ports of either of the said parties, nor to sell what they have taken," &c.

"ART. XXVIII. It is agreed that the first ten articles of this treaty shall be permanent, and the subsequent articles, except the twelfth, (providing for trade with the West Indies,) shall be limited in their duration to 12 years" from the exchange of ratifications. As previously stated, Mr. Jefferson's letter of the 5th of September, 1793, was annexed to this treaty, so that the effect of the 7th article was to make compensation to Great

*Re-enacted March 2, 1797, and made perpetual April 24, 1800.

This was the first treaty providing for a commission to investigate British and American claims. A second commission was appointed under the treaty of Ghent of 1814, to consider claims arising from the seizure of slaves; and a third under the convention of February 8, 1853, for the general settlement of outstanding claims.

Britain for all prizes taken by vessels fitted out by France in the United States after the 5th of June, 1793, (the date of Mr. Jefferson's letter of prohibition to M. Genet,) if such prizes had been brought into ports of the United States; but not to make compensation for any prizes brought in by vessels fitted out before the 5th of June, 1793, or for any prizes whatever not brought into United States ports.

Having thus traced the United States neutrality law from its origin in the proclamation of the 22d of April, 1793, to the act of 1794, it may be convenient to notice some of the principal decisions in the Supreme Court of cases illustrative of the operation of the law as thus originally framed.

Decisions in the

February, 1794, the sloop Betsy, (a vessel captured by the French privateer the Citizen Genet, and sent in to Baltimore.) Judgraent.-No foreign power can rightfully erect any court of judica- Supreme Court of ture within the United States unless by force of a treaty.

the United States. Curtis, vol. i, pago

The admiralty jurisdiction exercised by consuls of France in the 74.

United States is not of right.

August, 1795. Talbot t. Janson. Case of a Dutch vessel, the Magda

lena, brought into Charleston by the privateer L'Ami de la Liberté, Curtis, vol. i, alleged to have been an American-owned ship, armed and equipped in page 128. Chesapeake bay and Charleston.

Judgment.-The capture of a vessel of a country at peace with the United States, made by a vessel fitted out in one of our ports, and commanded by one of our citizens, is illegal; and if the captured vessel is brought within our jurisdiction, the district courts, upon a libel for a tortious seizure, may inquire into the facts and decree restitution.

Restitution decreed with damages.

August, 1796. Moodie v. The ship Alfred.

Judgment.-It is not a violation of the neutrality laws of the United States to sell to a foreigner a vessel built in this country, though suited to be a privateer, and having some equipments calculated for war, but frequently used for merchant-ships.

Restitution refused.

August, 1796. Moodie v. The ship Phoebe Anne.

Judgment.-Under the XIXth article of the treaty with France a privateer has a right to make repairs in our ports.

The replacement of her force is not an augmentation of it.

Restitution refused.

"United States

In June, 1797, a short act was passed prohibiting any citizen of the United States, "without the limit of the same," from fitting out and Statutes at Large, arming, &c., any private ship or vessel of war with intent, &c., or vol. i, page 52). taking the command of or entering on board of, or purchasing any Fifth Congress, interest in any such vessel, under penalty of a fine of $10,000, or sess. 1, ch. 1; June imprisonment for not more than ten years.

This act was entirely repealed by the act of 1818.

14, 1797.

Curtis, vol. 1, page 470.

The restriction imposed on intercourse with France in 1799, by the act of Congress of the 9th of February, put a stop to any further privateering cases, and the next report of a decision affecting international relations occurs in February, 1804. "Church v. Hubbart." Case of the Aurora seized at Para for attempted smuggling. The case was brought before the United States court on an insurance claim. In pronouncing judgment, Chief Justice Marshall observed: "The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory, and is a hostile act which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle, the right of a belligerent to search a neutral vessel on the high seas for contraband of war is universally admitted.

A case arose in 1808 as to the validity of the capture by a French privateer of a ship dispatched from a port held by the St. Domingo Curtis, vol. ii, rebels, and the subsequent condemnation of her cargo in the court of page 87.

the French delegate at Santo Domingo, (Rose v. Himely. Case of the Sarah, February, 180) Amongst other matters affecting the law of prize, it was laid down that, whether a revolted colony is to be treated as a sovereign state, is a political question to be decided by governments, not by courts of justice; and the courts of the United States must consider the ancient state of things as remaining until the sovereignty of the revolted colony is acknowledged by the government of the United States. Restitution decreed without costs.

Annual Register, 1866.

In March, 1866, Miranda's expedition against Caracas was fitted out at New York. The expedition consisted of the Leander, armed vessel of 18 guns, and two schooners. Miranda was met by two Spanish ships of war off Puerto Cabello. An action ensued, in which he lost his schooners and was

compelled to take refuge at Grenada. Fifty-seven of his followers were taken in the schooners and carried to Puerto Cabello, where they were tried for piracy, 10 of them condemned to death and the rest to imprisonment.

President Jefferson, in his message to Congress of the 2d of December, 1806, speaks American State of this expedition in the following terms: "Having received informaPapers, vol. i, tion that, in another part of the United States, a great number of pripage 68. vate individuals were combining together, arming, and organizing themselves, contrary to law, to carry on a military expedition against the territories of Spain, I thought it necessary, by proclamation as well as by special orders, to take measures for preventing and suppressing this enterprise, for seizing the vessels, arms, and other means provided for it, and for arresting and bringing to justice its authors and abettors. It was due to that good faith which ought ever to be the rule of action in public as in private transaction; it was due to good order and regular government, that while the public force was acting strictly on the defensive, and merely to protect our citizens from aggression, the criminal attempts of private individuals to decide for their country the question of peace or war by commencing active and unauthorized hostilities, should be promptly and efficaciously suppressed."

page 473.

Writing to Don Valentine de Foronda in 1809, President Jefferson said of this transJefferson's action: Your predecessor, soured on a question of etiquette against Works, vol. v, the administration of this country, wished to impute wrong to them in all their actions, even where he did not believe it himself. In this spirit he wished it to be believed that we were in unjustifiable co-operation in Miranda's expedition. I solemnly, and on my personal truth and honor, declare to you that this was entirely without foundation and that there was neither co-operation nor connivance on our part. He informed us he was about to attempt the liberation of his native country from bondage, and intimated a hope of our aid, or connivance at least. He was at once informed that although we had great cause of complaint against Spain and even of war, yet whenever we should think proper to act as an enemy it should be openly and above-board, and that our hostility should never be exercised by such petty means. We had no suspicion that he expected to engage men here, but merely to purchase military stores. Against this there was no law, nor consequently any authority for us to interpose obstacles. On the other hand, we deemed it improper to betray his voluntary communication to the agents of Spain. Although his measures were many days in preparation at New York, we never had the least intimation or suspicion of his engaging men in his enterprise until he was gone; and I presume the secrecy of his proceeding kept them equally unknown to the Marquis Yrujo at Philadelphia and the Spanish consul at New York, since neither of them gave us any information of the enlistment of men, until it was too late for any measures taken at Washington to prevent their departure. The officer in the customs who participated in this transaction with Miranda we immediately removed, and should have had him and others further punished had it not been for the protection given them by private citizens at New York, in opposition to the government, who, by their impudent falsehoods and calumnies, were able to overbear the minds of the jurors." Mr. Dana, in his recent edition of Wheaton, remarks: "The Spanish ments of Interna- government complained that a military expedition had been fitted out tional Law is in New York, under Miranda, in 1806, to operate against Spain in South edited by R. H. America. There seems no doubt that this might and ought to have Dana; 8th edition, been prevented by us."

Wheaton's Ele

1866, page 558.Note.

ernments of Spain

The war between Spain and her colonies broke out in 1810, and the United States government again found themselves placed in a position Correspondence of great difficulty for maintaining their neutrality. The sympathies of between the gov- the people of the United States were naturally warmly enlisted on behalf and the United of their fellow republicans; while it would appear that the equipment States, 1817-18, of vessels to cruise against Spanish commerce was a profitable as well as and of Portugal a popular undertaking, and became a kind of commercial speculation. and the United In December, 1810, a vessel named the Exchange, of Baltimore, was States, 1816-'51. captured by a French privateer on a voyage to St. Sebastian's, in Spain; afterwards coming to Philadelphia as a French public vessel under the name of the Balaon. The schooner Exchange vs. McFadden and others, February, 1812. The French captain averred that he had put into Philadelphia from stress of weather, and produced an affidavit of the French consul verifying his commission, and stating that the public vessels of the Emperor of France never carry with them any other document or evidence that they belong to him than his flag, the commission, and the possession of his officers.

Curtis, vol. ii, p. 478.

Judgment.-A public armed vessel in the service of a sovereign at peace with the United States is not within the ordinary jurisdiction of our tribunals while in a port in the United States.

But the sovereign power of the United States may interpose and impart such a jurisdiction.

Restitution refused.

February, 1815.-The brig Alerta and cargo vs. Blas.

Judgment.-If a capture be made by a privateer which had been ille- Curtis, vol. iii, gally equipped in a neutral country, the priz ecourts of such neutral p. 379.

country have power, and it is their duty, to restore the captured property, if brought within their jurisdiction, to its owner.

Vessel and cargo restored.

American State

p. 1.

On the 1st of September, 1815, President Madison issued a proclamation prohibiting the outfit of illegal expeditions in the United States: "Whereas information has been received that sundry persons, citizens Papers, vol. iv, of the United States, or residents within the same, and especially within the State of Louisiana, are conspiring together to begin and set on foot, provide, and prepare the means for a military expedition or enterprise against the dominions of Spain, with which the United States are happily at peace; that for this purpose they are collectign arms, military stores, provisions, vessels, and other means, and deceiving and seducing honest and well-meaning citizens to engage in their unlawful enterprises; or organizing, officering, and arming themselves for the same, contrary to the laws in such cases made and provided. I have therefore thought fit to issue this my proclamation, warning and enjoining all faithful citizens who have been led, without due knowledge or consideration, to participate in the said unlawful enterprises, to withdraw from the same without delay, and commanding all persons whatsoever engaged or concerned in the same to cease all further proceedings therein, as they will answer the contrary at their peril. And I hereby enjoin and require all officers, civil and military, of the United States, or of any of the States or Territories, all judges, justices, and other officers of the peace, all military officers of the army or navy of the United States, and officers of the militia, to be vigilant, each within his respective department, and according to his functions, in searching out and bringing to punishment all persons engaged or concerned in such enterprises; in seizing and detaining, subject to the disposition of the law, all arms, military stores, vessels, or other means provided or providing for the same, and in general in preventing the carrying on such expedition or enterprise by all the lawful means within their power; and I require all good and faithful citizens and others within the United States to be aiding and assisting herein, and especially in the discovery, apprehension, and bringing to justice all such offenders, in preventing the execution of their unlawful combinations or designs, and in giving information against them to the proper authorities. "JAMES MADISON.

"WASHINGTON, September 1, 1815."

Annual Regis

In 1816 the Portuguese-Brazilian government intervened by force in Buenos Ayres, and thus became a party to the contest between Spain ter, 1816. and her South American colonies.

In December of that year President Madison communicated to Congress the following message:

American State Papers, vol. iv, p. 103.

"WASHINGTON, December 26, 1816. "It is found that the existing laws have not the efficacy necessary to prevent violations of the obligations of the United States as a nation at peace towards belligerent parties, and other unlawful acts in the high seas by armed vessels equipped within the waters of the United States.

"With a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in a course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments, with the exceptions in such provisions of the cases of merchant vessels furnished with the defensive armaments used on distant and dangerous expeditions, and of a private commerce in military stores permitted by our laws, and which the law of nations does not require the United States to prohibit. "JAMES MADISON."

The Committee on Foreign Affairs at the same time laid before the House of Representatives some papers relating to this subject, among which were a letter from the Secretary of State, (Mr. Monroe,) reporting "That the provisions necessary to make the laws effectual against fitting out armed vessels in our ports for the purpose of hostile cruising seem to be

1st. That they should be laid under bond not to violate the treaties of the United States or the obligations of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and inunitions of war, applicable to the equipment and armament of such vessels subsequent to their departure.

"2d. To invest the collectors, or other revenue officers where there are no collectors, with