power to seize and detain versels under circumstances indicating strong presumption of an intended breach of the law; the detention to take place until the Executive, on a full representation of the facts had thereupon can be obtained. The statute book contains analogous powers to this above suggested. (See particularly the 11th section of the act of Congress of April 25, 1808.) "The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracy as a preventive, where there is reason to suspect an intention to commit the offense. They rest upon the general footing of punishing the offense where, if there be full evidence of the actual perpetration of the crime, the party is bonded over after the trial to the penalty denounced." vol. iii, p. 370. pers, 839. United States On the 3d of March, 1817, a short act was passed, in which (in order Statutes at Large, to meet a question which had been raised as to whether the South British and American armies, not being formerly recognized as independent comForeign State Pa- munities, came within the scope of the act of 1794) the terms "army, vol. iv, p. district, or people," are inserted after the phrase "prince or state," as it stands in the first section of the act of 1794. The recommendations of the President and Mr. Monroe were partially carried out by provisions in the 2d and 3d sections of this act for a bond being taken from the owners of suspected vessels. The President in his message to Congress of the 2d of December, American State 1817, called attention to piratical establishments which had been conPapers, vol. iv, P. stituted at Amelia island and Galveston, and stated that instructions had been given for their suppression. "The establishments, if ever sanctioned by any authority whatever, which is not believed, have abused their trust and forfeited all claim to consideration." 130. It appears that these places were used as rendezvous for smugglers and slave dealers, who introduced slaves from them into the United States in defiance of the laws. Amelia island was in Spanish territory, and had been the subject of negotiation between Spain and the United States. Galveston was in the disputed territory on the Spanish and United American State States boundary. Papers, vol. iv, p. 132. ernment. * It appears that "among the avowed projects of the persons who had occupied Amelia island was that of making a conquest of East and West Florida, professedly for the purpose of establishing there an independent govThe greater part of West Florida being in the actual possession of the United States, this project involved in it designs of direct hostility against them; and, as the express object of the resolution and act of January 15, 1811, was to authorize the President to prevent the province of East Florida from passing into the hands of any foreign power, it became the obvious duty of the President to exercise the authority vested in him by that law." Moreover, it was "a matter of public notoriety that two of the persons who had snocessively held the command at Amelia island, whether authorized themselves by any government or not, had issued commissions for privateers, as in the name of the Venezulean and Mexican governments, to vessels fitted out in the ports of the United States, and chiefly manned and officered by United States citizens." The Galveston establishment was formed by a Commodore Oury, principally for the purpose of privateering and slave dealing. He issued commissions in the name of the Mexican republic, and fitted out his vessels in United States ports, and brought his prizes to Galveston, where they were condemned by a fictitious admiralty court, and the prize vessels and cargoes afterwards sent to the United States for sale. Some of these prizes were restored to the original owners by process in the Louisiana district court. American State 183. A United States force was dispatched against both these establishments, and in December, 1817, they were forcibly suppressed. Spain remonstrated Papers, vol. iv, P. ment stated that it was a temporary measure which had been carried against the occupation of Amelia island, but the United States governout in the public interest, and was not intended as an infraction of any Spanish rights of sovereignty. In 1818, a further foreign enlishment act was passed (April 3) repeal"United States, ing and revising the acts of 1794, 1797, and 1817. This act is the one Statutes at Large," vol. iii, p. 447. now in force. "British and The principal points in which it differs from the act of 1794 are as Foreign State Pa- follows: pers, vol. ix, p. 382. out the act. SECTION 1. Instead of the words "foreign prince or state," the words are "foreign prince, state, colony, district, or people," and so through SEC. 2. Omits the last paragraph of indemnity to the informer. SEC. 3. Has "within the limits of the United States," instead of "within any of the ports, harbors, bays, rivers, or other waters." The penalty is made $10,000 instead of $5,000. SEC. 4. Has no corresponding clause in the act of 1794. It provides against the equipment of vessels "without the limits" of the United States to commit hostilities "upon the citizens of the United States or their property," under penalty of a fine of $10,000 or imprisonment for not more than 10 years. This clause is similar in its general provisions to the act of 1797, with the material difference that that act provided for the punishment of an offense committed "without the limits" of the United States upon "the citizens or property of any prince or state with whom the United States are at peace, or upon the citizens of the United States or their property." SEC. 5. Is the same as section 4 in the act of 1794, with the addition of "or by changing those on board of her for guns of a larger caliber" after the words "by adding to the number of the guns in such vessel." SEC. 6 (same as Sec. 5.) The penalty is made one year instead of three years' imprisonment. SECS. 7 and 8. Same as Secs. 8 and 9. SECS. 10 and 11. The "bonding" clauses are nearly the same as those in the act of 1817, and as they are of importance as constituting the chief difference between the English and American foreign enlistment acts, are here given at length: "SEC. 10. And be it further enacted, That the owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into bond to the United States, with sufficient sureties, prior to clearing out the same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property, of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace. "SEC. 11. And be it further enacted, That the collectors of the customs be, and they are hereby, respectively authorized and required to detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section of this act.”* SEC. 12. Repeals the acts of 1794 and 1797. A few more decisions in the Supreme Court remain to be noticed. The "Divina Pastora," February, 1819. Curtis, vol. iv, Judgment. The government of the United States having recognized page 345. the existence of a civil war between Spain and her colonies, our courts are bound to recognize as lawful those acts which war authorizes, and the new government in South America. Captures made under their commission must be treated by us like other captures. Their legality cannot be determined in our courts, unless made in violation of our neutrality. The pleadings being defective in form, the cause was remanded to the circuit court. The result does not appear. February, 1819, the "Estrella." Curtis, vol. iv, Judgment. In the absence of any act of Congress on the subject, the page 406. courts of the United States would have authority, under the general law of nations, to decree restitution of property captured in violation of their neu trality. Vessel and cargo restored with costs. February, 1820, "La Amistad de Rues." Ibid., vol. iv, Judgment.-In cases of violation of our neutrality by any of the bel- page 673. ligerents, if the prize comes voluntarily within our territory, it is restored to the original owners by our courts. But their jurisdiction for this purpose under the law of nations extends only to restitution of the specific property, with costs and expenses during the pendency of the suit, and does not extend to the infliction of vindictive damages or compensation for plunderage, as in ordinary cases of marine torts. Mr. Bemis, in his pamphlet on "American Neutrality," published at Boston in 1866, remarks: "To my own appreciation both of these 'bonding' clauses, as they are called, had most of their neutral virtue taken out of them when Congress made them applicable.--(1.) To 'vessels belonging wholly or in part to citizens of the United States,' thereby leaving foreigners at liberty to clear unneutrally armed ships, (see project of the act, Ann. Cong. 1816--'17, p. 477, sec. 1; (2.) When they limited the bond so as only to prevent such owners' from cruising or committing hostilities, instead of making the bond guard against belligerent employment of the vessel by any person to whom they (such owners) may sell or pretend to sell such vessel.' (Ann. Cong. 1816--17, p. 478, sec. 2;) and (3,) by requiring that any vessel to be subject to detention must have on board a cargo principally consisting of arms and munitions of war,' thus letting go at large a vessel armed to the teeth, and manifestly built for warlike purposes,' provi ded she adopts the precaution of taking no such cargo with her, and is owned by foreigners." In delivering judgment, Chief Justice Story observed: "We entirely disclaim any right to inflict such damages, and consider it no part of the duty of a neutral nation to interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a capture between belligerents. Strictly speaking, there can be no such thing as a marine tort between the belligerents. Each has an undoubted right to exercise all the rights of war against the other, and it cannot be a matter of judicial complaint that they are exercised with severity, even if the parties do transcend those rules which the customary laws of war justify. At least, they have never been held within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own government exclusively for any excess or irregularity in their proceedings, and a neutral nation ought no otherwise to interfere than to prevent captors from obtaining any unjust advantage by a violation of its neutral jurisdiction. Neutral nations may, indeed, inflict pecuniary or other penalties on the parties for any such violation; but it then does it professedly, in vindication of its own rights, and not by way of compensation to the captured. When called upon by either of the belligerents to act in such cases, all that justice seems to require is that the neutral nation should fairly execute its own laws and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property if found within its own ports; but beyond this it is not obliged to interpose between the belligerents. If, indeed, it were otherwise, there would be no end to the difficulties and embarrasments of neutral prize tribunals. They would be compelled to decide, in every variety of shape, upon marine trespasses in rem and in personam between belligerents, without possessing adequate means of ascertaining the real facts, or of compelling the attendance of foreign witnesses, and thus they would draw within their jurisdiction almost every incident of prize. Such a course of things would necessarily create irritations and animosities, and very soon embark neutral nations in all the controversies and hostilities of the conflicting parties. Considerations of public policy came, therefore, in aid of what we consider the law of nations in this subject, and we may add that Congress in his legislation has never passed the limit which is here marked out." The action was brought on appeal from the district court, which had ordered restitution and awarded damages against the captors on the ground of an illegal augmentation of force at New Orleans. The claimants having failed to prove such an augmentation of force before the Supreme Court, the sentence of the district court was reversed, and the prize restored to the captor (the Venezuelan privateer La Guerrière) and the damages disallowed, as stated above. Curtis, vol. v, page 269. February, 1822. The "Santissima Trinidad" and the "St. Ander." This was a claim preferred by the Spanish consul, as representing the Spanish owners, for "eighty-nine bales of cochineal, two bales of jalap, and one box of vanilla, originally constituting part of the cargoes of the Spanish ships Santissima Trinidad and St. Ander, and alleged to have been unlawfully and piratically taken out of those vessels on the high seas, by a squadron consisting of two armed vessels, called the Independencia del Sud and the Altravida, and manned and commanded by persons assuming themselves to be citizens of the United Provinces of the Rio de la Plata." Chief Justice Story thus stated the case as regarded the Independencia: "She was originally built and equipped at Baltimore as a privateer during the late war with Great Britain, and was then rigged as a schooner and called the Mammoth, and sailed against the enemy. After the peace she was rigged as a schooner and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war by her new owners, (who are inhabitants of Baltimore,) and being armed with 12 guns, constituting a part of her original armament. She was dispatched from that port under the command of the claimant on a voyage, ostensibly to the northwest coast, but in reality to Buenos Ayres. By the written restrictions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag during the voyage, At Buenos Ayres the vessel was sold to Captain Chaytor and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres; and Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commission to command the vessel as a national ship, and invited the crew to enlist in the service, and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port considered the vessel as a public ship of war, and such was her avowed character and reputation. No bill of sale of the vessel to the government of Buenos Ayres is produced, and a question has been made, principally from this defect in the evidence, whether her character as a public ship is established. It is not understood that any doubt is expressed as to the genuineness of Captain Chaytor's commission, nor as to the competency of the other proofs in the cause introduced to corroborate it. The only point is, whether, supposing them true, they afford satisfactory evidence of her public character. We are of opinion that they do. In general, the commission of a public ship, signed by the proper authorities of the nation to which she belongs, is complete proof of her national character. # The commission of a public ship when duly authenticated, so far at least as foreign courts are concerned, imports absolute verity and the title is not examinable. * "There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship. It is that Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and therefore is not entitled to have her ships of war recognized by our courts as national ships. We have in former cases had occasion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same right of asylum and intercourse. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. "The next question growing out of this record is, whether the property in question was captured in violation of our neutrality, so that restitution ought, by the law of nations, to be decreed to the belligerents. Two grounds are relied upon to justify restitution: 1. That the Independencia and Altravida were originally equipped, armed and manned as vessels of war in our ports. 2. That there was an illegal augmentation of the force of the Independencia within our ports. * * "The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent that, though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemnable as good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign parts for sale. It is a commercial venture, which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretense to say that the original outfit in the voyage was illegal, or that a capture made after the sale, for that cause alone, invalid." On the second point, the court found that there had been a subsequent illegal angmentation of force both of the Independencia and of the Altravida, and on this ground the prize was ordered to be restored to the Spanish claimants. February, 1822.-The "Gran Para." Judgment.-It is firmly settled that if captures are made by vessels Curtis, vol. v, which have violated our neutrality acts, the property may be restored page 302. if brought within our territory. A vessel armed and manned in one of our ports and sailing thence to a belligerent port, with the intent thence to depart on a cruise with the crew and armament obtained here, and so departing, and capturing belligerent property, violates our neutrality laws, and her prizes coming within our jurisdiction will be restored. A bona fide termination of the cruise for which the illegal armament was here obtained puts an end to the disability growing out of the violation of our neutrality laws, which does not attach indefinitely, but a colorable termination has no such effect. The prize, bullion taken out of the Portuguese vessel Gran Para, and brought to Baltimore in September, 1818, in the capturing privateer Irresistible, sailing under the Artigan flag, was restored to the Portuguese claimants, with costs. February, 1823. "La Nereyda." This was an action brought by the Spanish consul for the recovery Curtis, vol. v, of the brig Nereyda. page 374. The Nereyda was a Spanish ship of war, captured in 1818 by the privateer Irresistible, of which John Daniels was the commander and Henry Childs lieutenant, and which had been illegally equipped at Baltimore. The Nereyda was carried to the island of Margaritta under the command of Childs as prize master. It was alleged that at Margaritta the Nereyda was condemned as prize, and sold to one Franthesche; but no proof of the sale was adduced; and it appeared that during the short time she remained at Margaritta she was under the control of Childs, who obtained a commission as a privateer for her from the Venezuelan government, changed her name to the El Congresso de Venezuela, and sailed back in her to the United States, where she was eventually libelled at Baltimore. Childs opposed the claim of the Spanish consul by a counter-claim on behalf of the alleged purchaser, Franchesche. The case was brought up on appeal from the district court. Time was allowed to the respondent to produce a copy of the judgment of the Margaritta prize court, and also to show that the sale there was a real one, and Franchesche a bona fide purchaser. Childs failed to produce this evidence, and it having been shown that although four years had elapsed since the pretended sale, Franchesche had never asserted any rights over the vessel, which had continued in the possession of Childs and Daniels since the capture, the decree of the district court was reversed, and the vessel restored to the Spanish consul. page 189. United States vs. Quincy, January, 1832. Curtis, vol. x, In December, 1828, the Bolivar, a small vessel of 70 tons, sailed for Baltimore from Judgment."It is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed, or in a condition to commit hostilities, in order to find the defendant guilty of the offense charged in the indictment. "The first instruction, therefore, prayed on the part of the defendant must be denied, "The second and third instructions asked on the part of the defendant were: "Or if the jury believe that when the Bolivar was equipped at Baltimore, and when "We think these instructions ought to be given. The offense consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States, and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention, not conditional or contingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn, and decides whether the adventure is of a commercial or warlike character. "The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owner to give security (as was done in the present case) that such vessels shall not be employed by them to commit hostilities against foreign powers at peace with the United States. "The collectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owner to commit hostilities against some foreign power at peace with the United States. "All the latitude, therefore, necessary for commercial purposes, is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war." Other cases might be quoted, but it is only intended to convey a general idea of the ruling of the United States courts in carrying out the neutrality laws. There does not appear to have occurred, either during the French war or the South American war, any case similar to the Alabama, where the vessel was dispatched to an unoccupied island, and there met by another vessel bringing her armament and crew. This no doubt is owing in some measure to the difficulty there might have been in carrying out such a project with sailing vessels. Parliamentary The Spanish and Portuguese claims, arising out of the system of priva Papers, "North teering pursued by American citizens under the flags of the revolted colAmerica, No. 1, onies, have recently been so fully discussed in the communications be1861," &c. tween Lord Russell and Mr. Adams, respecting the Alabama and Shenandoah cases, that a short account of the correspondence will probably be sufficient for the purposes of the present memorandum. The treaty between Spain and the United States of America of the 27th of October, 1795, contained the following stipulation: "ARTICLE XIV. No subject of his Catholic Majesty shall apply for or take any com |