ammunition or any other raw material. At another stage of his argument the counsel maintained the proposition that unless it appeared affirmatively that the vessel was to sail out from the port of New York as an enlisted hostile ship of one belligerent, there was no criminality, although it should be made to appear by indisputable proof that she had been built, fitted, armed, and equipped as a ship of war, complete and ready for action. "The views thus pressed upon the court have, in its judgment, no foundation in public law, or in any decision that has been made by the highest judicial tribunal of the United States. The case of the Santissima Trinidad was decided by the Supreme Court at the February term, 1822." Judge Betts then gives an account of the facts of the case, (vide ante,) and continues: "In the course of his opinion, Mr. Justice Story discusses the point taken, that the Independencia was originally armed and fitted out in the United States contrary to law, and says: 'It is apparent that, though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure,'" &c., &c. These views of Mr. Justice Story were, as is apparent from the statement which has been made of the case, obiter dicta, and not necessary to the decision of the cause, restitution of the property being decreed upon the ground of the illegal augmentation of the force of the capturing vessel in our ports prior to the capture. The facts in regard to the commercial adventure of the Independencia, referred to by Mr. Justice Story, as they appear in the report of the case, were that that vessel, having been a privateer during the war between the United States and Great Britain, was, after the peace, sold by her original owners, and loaded by her new ones, at Baltimore, in January, 1816, with a cargo of munitions of war; that she sailed from Baltimore with them, and, armed with 12 guns, part of her original armament, to Buenos Ayres, under written instructions from her owners to her supercargo, authorizing him to sell the vessel to the government of Buenos Ayres if he could obtain a suitable price; and that she was sold at Buenos Ayres to parties who again sold her, so that she became a public commissioned vessel of the government of Buenos Ayres. It was on these facts that Judge Story remarked that the vessel, though equipped as a vessel of war, was sent to Buenos Ayres on a commercial adventure in no shape violating our laws or our national neutrality, and that there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels to foreign ports for sale. If the Messrs. Forbes, or any of the owners of the Meteor, or Mr. Cary their agent, or any of the parties concerned in the transactions in regard to the Meteor, had testified before the court on this trial that the Meteor was going out to Panama on a purely commercial adventure, to be sold there if a suitable price could be obtained, and if it appeared that there was no intent on the part of the owners or any other person that the vessel should be used to violate the neutrality of the United States, there might be some pretense that this case was within the principle thus laid down by Mr. Justice Story. But the whole testimony points in a different direction. The transactions with the agents of Chili at New York in regard to the Meteor was, it is true, a commercial adventure, in so far that the vessel was sold, and that such sale was a matter of trade or commerce at New York between her owners and the agents of the government of Chili. But in the sense in which Mr. Justice Story speaks of the sending of the Independencia to Buenos Ayres on a commercial adventure, there was no commercial adventure in the case of the Meteor." The doctrines laid down in this case are the result of the legislative, executive, and judicial action of the United States. The importance of this case, not merely in view of the pecuniary value of the vessel proceeded against, but also in respect to the principles of public law involved in it, have led the court to a more extended discussion of those principles than would otherwise have been necessary. The court, however, entertains no doubt as to the correctness of the doctrines of public law which it has applied to the present case. Those doctrines are the result of the legislative, executive, and judicial action of the public authorities and courts of the United States in a great variety of cases, and the court has nowhere found a more excellent summary of them than in Wheaton's International Law, (eighth edition, with notes by Dana, pages 562, 563, note 215:) "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 sed knowingly and with the intent, &c., is an offense; 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." "Our rules do not interfere with bona fide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and provide her with stores, and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel, so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market in a belligerent port. In such case the extent and character of the equipments is as immaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable, yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market; or, on the other hand, is it to fit out a vessel which shall have our port to cruise, immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent; the former the belligerent must prevent." The judgment was given against the vessel, but she was eventually restored to her owners under bond, and what became of her afterwards does not appear. It must be remembered that this opinion of Judge Betts was not reviewed by the Supreme Court, and is therefore of inferior authority. It has been much criticised, both in this country and in the United States. This brings the history of the American foreign enlistment act down to the present time. In 1838, on the outbreak of the rebellion in Canada, the United States government issued a proclamation cautioning United States citizens from assisting in it. with Mr. Fox, her ton. A strong military force was also sent to the frontier, and the Presi British and For- dent delivered a message to Congress recommending the enactment of eign State Papers, some special measure to meet the occasion. In the meanwhile, an vol. xxv, page —. expedition was openly organized at Detroit. This expedition seized Correspondence the arsenal, and the steamboats and ships lying off the Detroit wharves, Majesty's minis. and succeeded in getting off to Canada without hinderance. A military ter at Washing. force was then ordered to the frontier, and sent to Plattsburg, where another expedition was said to be fitting out. A bill for the prevention of such expeditions was introduced into Congress, but not passed until the 10th of March, by which time the rebellion was nearly subdued. This act, which was limited to two years, provided for the seizure February 5, 1838. and detention of any vessel, vehicle, or arms or munitions of war "proUnited States vided or prepared for any military expedition or enterprise against the vol. v, page 212. territory or dominions of any foreign prince or state, or of any colony, district, or people, conterminous with the United States.” Mr. Fox, No. 5, January 29, 1838. Mr. Fox, No. 7, Statutes at Large, THE BRITISH FOREIGN ENLISTMENT ACT. The United States foreign enlistment act, as will have been seen, arose from the construction put on the terms of the treaty with France of 1778; the British foreign enlistment act may also be said to have arisen from the provision of a treaty-that with Spain of the 28th of August, 1814. This treaty, or, as it is called, "Additional Articles to the Treaty of British and For. July 5, 1814," contains the following article: eign State Papers, vol. i, page 292. "ARTICLE III. His Britannic Majesty, being anxious that the troubles and disturbances which unfortunately prevail in the dominions of his Catholic Majesty in America should entirely cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other article to the revolted in America." In 1818 the reactionary policy of King Ferdinand, the prohibitory duties imposed by him on British commerce, and the ingratitude with which he treated British officers and others who had served his cause in Spain, had provoked a great deal of irritation in England; and there was a considerable party in the House of Commons, headed by Sir James Macintosh, who were prepared to support the claims of the Spanish-American colonies to independence. Expeditions were said to be in preparation for rendering active assistance both to the malcontents in Spain and to the rebels in America, in spite of a proclamation forbidding such expeditions, which had been published in 1817; and the government consequently found that it was necessary, in order to keep good faith with Spain, and to prevent infractions of British neutrality, to bring in an act of Parliament to provide for the case which now for the first time arose in modern history, of Great Britain being neutral at the time of a great maritime war. The history of the British neutrality law at that period is thus stated by Sir R. Phillimore: page 212. "The statute of the third of James I, chapter four, made it felony Phillimore's Infor any person whatever to go out of the realm to serve any foreign ternational Law, vol. iii, ed. 1857, prince, without having first taken the oath of allegiance before his departure. It was felony also for any gentleman, or person of higher degree, or for one who had borne any office in the army, to go out of the realm to serve such foreign prince or state, without previously entering into a bond with two sureties, not to be reconciled to the See of Rome, or enter into any conspiracy against his natural sovereign. And further it was enacted by statute 9 Geo. II, c. 30, enforced by statute 29 Geo. II, c. 17, if any subject of Great Britain shall enlist himself, or if any person shall procure him to be enlisted, in any foreign service, or detain or embark him for that purpose, without license under the King's sign-manual, he shall be guilty of felony without benefit of clergy; but if the person so enlisted or enticed shall discover his seducer within 15 days, so as he may be apprehended and convicted of the same, he shall be indemnified. It was moreover, by statute 29 Geo. II, c. 17, enacted that to serve under the French King as a military officer, shall be felony without benefit of clergy; and to enter into the Scotch brigade, in the Dutch service, without previously taking the oaths of allegiance and abjuration, shall be a forfeiture of £500." The act for the amendment of the neutrality laws was introduced by Mr. Canning on the 10th of June, 1819, in an eloquent speech, in the course of which he said: "It surely could not be forgotten that in 1793 this country complained of various breaches of neutrality (though much inferior in degree to those Cobbett's Parliamentary now under consideration) committed on the part of subjects of the bates, vol. xi, page United States of America. What was the conduct of that nation in 1103. consequence? Did it resent the complaint as an infringement of its independence? Did it refuse to take such steps as would insure the immediate observance of neutrality? Neither. In 1794, immediately after the application from the British government, the legislature of the United States passed an act prohibiting, under heavy penalties, the engagement of American citizens in the armies of any belligerent power. Was that the only instance of the kind? It was but last year that the United States passed an act by which the act of 1794 was confirmed in every respect, again prohibiting the engagement of their citizens in the service of any foreign power, and pointing distinctly to the service of Spain or the South American provinces." De On the other hand, Sir James Macintosh inveighed against the act as a left-handed neutrality, and as aimed at the struggling independence of South America. Sir W. Scott spoke in favor of the bill on the third reading on the 21st of June, and it was passed by a majority of 61. Many amendments had, however, been introduced into it, and among others the insertion of the words "as a transport or store-ship" in the seventh clause. This was intended to prevent British ships being hired to take troops from Spain to America; but the result has been to create the greatest confusion of meaning in the act. The passing of this act seems to have put a stop, for the time at least, to the dispatch of expeditions against Spain; and in April, 1823, Lord Cobbett's "ParDeAlthorp moved for the repeal of the act. Mr. Canning, in reply, entered liamentary bates," New Seinto the question of the neutrality of England, and pointed out that, ries, vol. viii, page far from being aimed exclusively at South America, this act was in 1019. reality in favor of the colonies, as it extended to Spain the prohibition to export arms, &c., which had been already provided for against them by the treaty of 1814. Referring to the United States law, he said: "If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the Presidency in Washington, and the secretaryship of Jefferson. In 1793, complaints were made to the American government that French ships were allowed to fit out and arm in American ports, for the purpose of attacking British vessels, in direct opposition to the laws of neutrality. Immediately upon this representation the American government held that such a fitting out was contrary to the laws of neutrality; and orders were issued prohibiting the arming of any French vessel in American ports. At New York a French vessel fitting out was seized and delivered over to the tribunals and condemned. Upon that occasion the American government held that such fitting out of French ships in American ports for the purpose of cruising against English vessels was incompatible with the sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain. Here, I contend, is the principle of neutrality upon which we ought to act. It was upon this principle that the bill in question was enacted." The motion was rejected by a majority of 106. The neutrality law of the United States having formed the foundation of the neutrality law of this country, and the decisions of the judges of that country having been, as it were, incorporated in the law of nations, the application of the United States foreign enlistment act has been treated of at some length; but as it would be useless to attempt within the compass of a memorandum to go into the intricate questions of "intent," "equipping, fitting out or arming," &c., &c., which have at various times been raised under the British act, it is only proposed to mention some of the leading instances in which it has been put into operation or suspended. In 1827 an expedition of four vessels, under the command of Count Phillimore, vol. Saldanha, sailed from Plymouth, ostensibly for Brazil, but in reality, as iii, page 229. was supposed, to operate against the party of Don Miguel in Terceira. Her Majesty's ship Walpole, with some gunboats, was sent to Terceira to intercept this expedition. This was done off Port Praya, and the Walpole escorted the expedition back to the channel. It eventually went to Brest. The Walpole subsequently stopped another expedition off Port Praya which had sailed from London. 219. In 1835 an order in council was passed exempting British subjects engaging in the service of Isabella of Spain from the penalties of the foreign enlistment Phillimore, vol. act. This enabled the Spanish Legion, under Sir De Lacy Evans, to be iii, pages 218 and formed. A debate took place on the question in June, 1835, but the competency of the Crown to make such a relaxation was not disputed. In 1846 certain British merchants complained that an expedition was being prepared to sail under General Florez against Ecuador. Their representation Correspondence was supported by several of the South American ministers. It appeared and treasury, Oc- that three vessels, the Glenelg, Monarch, and Neptune, were ready to tober and Novem- set sail with a large number of emigrants, or, as it was said, troops on ber, 1846. board, and that men had been openly enlisted for General Florez's service. The vessels were seized and condemned.* with home office Correspondence with Baron Mon In 1847 the Portuguese minister complained that the Black Cat was corvo, April and being fitted out to proceed with volunteers for the Portuguese rebel The vessel was seized, but released. May, 1847. service. Shortly afterwards he made another complaint of a number of British subjects having taken service at Oporto under the revolutionary leaders. He was told in reply that the English law did not extend to such acts committed in a foreign country. A Mr. Hislop, however, who had returned from Portugal after serving in the rebel army, was denounced by the Portuguese minister, and would have been proceeded against had the law officers considered the evidence sufficient. On the 30th of August, 1862, an order in council was issued, suspending the foreign enlistment act so far as to enable Captain Osborn and Mr. Lay to enter the service of the Emperor of China "to fit out, equip, purchase, and acquire ships or vessels of war for the use of the said Emperor, and to engage and enlist British subjects to enter the military and naval service of the said Emperor." This permission to remain in force until the 1st of September, 1864. The license granted by this order in council was extended to "all military officers in her Majesty's service," by the order in council of the 9th of January, 1863, with a similar limitation to the 1st of September, 1864. (Hertslet's Commercial Treaties, vol. xi, pp. 665-683.) It will be observed that in all, or nearly all, the cases up to the time of the American civil war, the foreign enlistment act had been invoked to prevent the enlistment and dispatch of recruits and soldiers rather than the equipment of vessels. The American civil war introduced a new series of cases, in which the foreign enlistment act was called into operation. These are so well known that it will be sufficient merely to name them in the order as they occurred: "Creto," tried at Nassau; released August, 1862. "Alexandra," tried in England. This was the celebrated cause in which all the issues as to the meaning of the equipment clauses of the foreign enlistment act were raised. The vessel was acquitted, the four judges in the exchequer court being equally divided in opinion; the junior withdrew. The costs and damages were compromised by the government for £3,700, and the vessel sailed for Nassau. Here she was again seized, and remained under seizure until the end of the war. The iron-clads El Toussoon and Mounassir at Liverpool, said to have been ordered for the Egyptian government. The ships were seized, but eventually purchased by government, and are now her Majesty's ships Wivern and Scorpion. The Canton or Pampero. This vessel was seized in the Clyde, and the builder allowed judgment to be taken against him. She remained under seizure until the close of the war, and has now become notorious under the name of the Tornado. There were five prosecutions for enlisting men to serve in confederate vessels: Mr. Rumball, the officer of Sheerness dockyard who took part in the equipment of the Rappahannock. He was acquitted February 4, 1865, although the case against him was a very strong one. Messrs. Jones and Highat, for enlisting men for the confederate service. They were convicted and sentenced, November 23, 1864, to pay a fine of £50 each. Campbell, enlisting for Georgia, pleaded guilty, and released on recognizance of £150 to appear when called upon. * There is no record of the trial in the foreign office. Seymour, Cunningham, and Buchanan, convicted of enlisting for Rappahannock, and discharged on recognizances. Captain Corbett, who commanded the vessel that took out the armament and crew to the Shenandoah at the Desertas off Funchal. A very strong case, but the evidence for the prosecution as to the actual enlistment of men broke down, and Captain Corbett was acquitted. The cases of the Alabama, Shenandoah, and Georgia are fully explained in the parliamentary papers, of which copies have been furnished to the commissioners. For an epitome of the representations addressed to her Majesty's government by Mr. APPENDIX No. IV. REPORTS FROM FOREIGN STATES, DECLARATIONS OF NEUTRALITY, &c. The accompanying circular was sent by the foreign office to her Majesty's representatives at the courts of the following countries: Austria, Belgium, Denmark, France, Italy, the Netherlands, Portugal, Prussia, Spain, Sweden, United States. FOREIGN OFFICE, February 14, 1867. The commission which has been appointed by the Queen to consider the neutrality laws of this country, being desirous of obtaining information respecting similar laws in other maritime countries, I have to instruct you to ascertain and report, with as little delay as possible, what laws, regulations, or other means the government to which you are accredited possess for preventing acts within their territories of which belligerents might complain as a violation of the duties of neutrality. And the following papers were received in reply: AUSTRIA. (Received from her Majesty's embassy at Vienna.) Note from the minister of foreign affairs to her Majesty's ambassador. Mr. Bonar, her Britannic Majesty's chargé d'affaires, was pleased to make inquiry of the imperial minister of foreign affairs as to what laws, regulations, or measures are laid down by the government of his imperial Majesty in order to prevent transactions in their territory of which belligerent powers might complain as being an infringement of the neutrality laws. After consulting the competent authorities, the minister of foreign affairs has now the honor to communicate to Lord Bloomfield, &c., &c., &c., with reference to the above question, as follows: The declaration signed in Paris by the representatives of Austria, France, Great Britain, Prussia, Russia, Italy, and Turkey, on the 18th of April, 1856, concerning the rights of neutrals in naval warfare, has been published in legal course in Austria, and constitates, therefore, a law generally in force. Apart from the principles which lie at the foundation of this declaration, there exists, however, no law in Austria, nor any other order generally binding, which could be made to apply to violations of neutrality by Austrian subjects. The imperial government have endeavored to supply this want in cases of war between other states, by promulgating in legal forms special regulations for the preservation of neutrality applicable only to the war in question. Thus in the year 1854, in consequence of the war then existing, the ministerial ordonnance of May 25, 1854, was promulgated, of which copy is inclosed herewith. In such special declarations the generally acknowledged principles of international law, as well as the known views of the belligerent powers on certain points, have been taken into consideration, in order as much as possible to obviate any complaints of infringement of neutrality. There does not exist, however, a law of this kind applicable to all future occasions, and more particularly there are no general laws in Austria prohibiting the construction, equipment, or manning of ships (in Austrian harbors) which are destined for belligerent powers, or are suspected of being so. The undersigned, &c., &c. VIENNA, May 16, 1867. MEYSENBUG. |