Appendix No. III., June 3, 1867

Appendix No. III.

MEMORANDUM BY MR. ABBOTT.

THE FOREIGN ENLISTMENT ACT.

(59 Geo. III, c. 69, July 3, 1819.)

The foreign enlistment acts of Great Britain and the United States, the circumstances under which they were passed, as well as the principles of neutrality involved in them, are so similar that a consideration of the British must necessarily be prefaced by an account of the history of the American act.

THE UNITED STATES FOREIGN ENLISTMENT ACT.

When, after the execution of Louis the XVIth, the French national convention declared war, on the first of February, 1793, against England and Holland, one of their first acts was to appoint a representative to proceed to the United States to solicit the support of the sister republic, and to reclaim the privileges to which they considered France to be entitled under the two treaties of the 6th of February, 1778.

The first of those treaties was a treaty of friendship and commerce, and contained the following articles:

[Translation.]

“Article XVII. It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please, the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges; nor shall such prizes be arrested or seized when they come to and enter the ports of either party; nor shall the searchers or other officers of those places search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time, and depart and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show; on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people, or property of either of the parties; but if such shall come in, being forced by stress of weather or the danger of the sea, all proper means shall be rigorously used, that they go out and retire from thence as soon as possible.Martens: “Recueil des Traités,” tom. 1, p. 145.

“Article XXII. It shall not be lawful for any foreign privateers, not belonging to subjects of the Most Christian King, nor citizens of the said United States who have commissions from any other prince or state in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandises, or any other lading; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the next port of that prince or state from which they have commissions.”

The other treaty, styled “Traité d’Alliance Eventuelleet Défensive,” provided (Article XI) for the mutual guarantee of the French and United States possessions in North America.

[Translation.]

“The whole as their possessions shall be fixed and assured to the said states at the moment of the cessation of their present war with England;” and, (Article 12,) “In order to fix more precisely the sense and application of the preceding article, the contracting parties declare, that in case of a rupture between France and England, the reciprocal guarantee declared in the said article shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guarantee shall not commence until the moment of the cessation of the present war, between the United States and England, shall have ascertained their possessions.”Martens: “Recueil des Traités,” tom. 1, p. 145.

The national convention assumed that under these stipulations they might claim the exclusive right to arm and commission privateers within American ports, to bring into them their prizes, to cause the prizes thus brought in to be condemned by French consuls and sold, and even to capture enemy‘s vessels within the limits of the maritime jurisdiction of the United States. At least such were the pretensions of their envoy, Monsieur, or as he styled himself, Citizen Genet, a Girondist of the most exaggerated type, whose avowed object was to excite the people of the United States to a war with Great Britain.

On the other hand, Washington, then entering on his second term of office as President, was determined to preserve the neutrality of his country, and immediately on receiving intelligence of the outbreak of war, hastened from Mount Vernon to Philadelphia, and summoned his cabinet to consider:

1. Whether a proclamation of neutrality should be issued.

2. Whether a minister should be received from the party then in power in France.

3. Whether the United States were bound by the guarantee in the treaty of 1778.

Tucker‘s “History of the United States,” ed. 1856, vol. i, pages 504 to 517.

The cabinet differed on the second and third points, but were unanimous in the favor of the issue of a proclamation.

On referring to the history of the United States for this period, it will be seen that the President was placed in a position which made it very difficult for him to carry out the policy of neutrality which he had decided upon.

The sympathies of the people of the United States were warmly engaged on behalf of France. The hostility against England generated during the war of independence was kept alive and fostered by the excesses committed by the frontier Indians, who, it was alleged, were encouraged by the British authorities; disputes had been raised as to the interpretation or the treaty of 1783; American seamen were pressed for the British navy; the English government were said to exercise the right of search at sea, and to interfere with American merchant vessels in an arbitrary and unfriendly manner. Besides the difficulties arising from these and other similar complaints against the British government, which rendered any measure which might be supposed to be favorable to England in the highest degree unpopular, the cabinet of the President was divided into factions headed respectively by Thomas Jefferson, Secretary for Foreign Affairs, and Alexander Hamilton, Secretary of the Treasury. The former, who had served from 1782 to 1789 as minister at Paris, was at the head of the party who advocated the rights of separate government in the several States. He was a republican of extreme views, and favored the French cause. The latter, the leader of the federal or centralization party, was inclined towards the constitutional system of England, with which country he consequently in some degree sympathized.Tucker’s “History of the United States.” Guizot. Washington.

It is necessary to take some notice of these obstacles to the President’s policy of neutrality, as explaining the subsequent proceedings of the United States government. The nation at large and two of the cabinet, Jefferson, and the Attorney General, Edmund Randolph, were for affording assistance to France in the first instance, and even for engaging eventually in the war. Washington, with Hamilton and Henry Knox, the Secretary for War, advocated a strict neutrality, and were supported in their views by the federalist party. Washington’s strength of character overcame the opposition of the French party, and he succeeded in commencing and maintaining that policy of non-intervention in European affairs which has since been consistently followed by his country up to the present time.

The proclamation of neutrality was issued on the 22d of April, 1793, and was as follows:American State Papers, vol. i, p. 140.

“Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, on the one part, and France on the other part; and the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers:

“I have therefore thought fit, by these presents, to declare the disposition of the United States to observe the conduct aforesaid towards those powers respectively, and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever which may in any manner tend to contravene such disposition.

“And I do hereby also make known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture; and further, that I have given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the law of nations with respect to the powers at war, or any of them.

(Signed)

“WASHINGTON.

“Philadelphia, April 22, 1793.

“By the President:

(Signed)

“Th. Jefferson.”

In the meanwhile, M. Genet had sailed from France provided with blank commissions, or letters of marque, for distribution in the ports of the United States. He arrived at Charleston on the 8th at April; but the intelligence of his landing was not received by the United States government at Philadelphia until the day on which the proclamation was issued. He at once organized a system of privateering, and within a week commissioned four vessels, the Republican, the Sans Culotte, the Anti-George, and the Citizen Genet. He also authorized the French consuls in the United States to hold courts of vice-admiralty on any vessels their cruisers might capture, to condemn them and sell the prizes. Instead of proceeding by sea to Philadelphia, M. Genet made a triumphant progress by land, haranguing the people, instituting “bonnet rouge” clubs, and endeavoring to excite the citizens of the towns through which he passed to afford active aid to the French republic, in spite of the President’s declaration of neutrality. Mr. Hammond lost no time in remonstrating against these proceedings, and on the 8th of May addressed the following note to Mr. Jefferson:Mr. Jefferson to Mr. Morris, United States minister at Paris, Aug. 16, 1793.American State Papers, vol. i, p. 167.Tucker, vol. i, page 509.

“The undersigned, her Britannic Majesty’s minister plenipotentiary to the United States of America, has the honor of informing the Secretary of State that he has received intelligence from his Majesty’s consul at Charleston, South Carolina, that two privateers have been fitted out from that port under French commissions. They carry six small guns, and are navigated by 40 or 50 men, who are for the most part citizens of the United States. One of these privateers left the harbor of Charleston on the 18th ultimo, and the other was on the 22d ultimo ready to depart.MS. Inclosure in Mr. Hammond’s dispatch to Lord Greenville, May 17, 1793.

“The undersigned does not deem it necessary to enter into any reasoning upon these facts, as he conceives them to be breaches of that neutrality which the United States profess to observe, and direct contraventions of the proclamation which the President issued upon the 22d of last month. Under this impression he doubts not that the executive government of the United States will pursue such measures as to its wisdom may appear the best calculated for repressing such practices in future and for restoring to their rightful owners any captures which these particular privateers may attempt to bring into any of the ports of the United States.”Mr. Jefferson to Mr. Hammond, May 15, 1865.]

Mr. Hammond, at the same time, forwarded to Mr. Jefferson three other notes, complaining respectively of the illegal prize court established by the French consul at Charleston, of the intended shipment of arms and munitions of war for France from American ports, and of the seizure of the British bark Grange by the French frigate Abondance in the Delaware river.

In acknowledging the receipt of these communications, Mr. Jefferson observed, with reference to the export of arms, that “American citizens have always been free to make, vend, and export arms; it is the constant occupation and livelihood of some of them; to suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries in which we have no concern, would scarcely be expected; it would be hard in principle and impossible in practice; the law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement of their occupations; it is satisfied with the external penalty pronounced by the President’s proclamation, that of confiscation of such portion of those arms as shall fall into the hands of any of the belligerent powers on the way to the ports of their enemies; to this penalty American citizens are warned that they will be abandoned, and that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all.”Jefferson’s Works, vol. iii, p. 557.

“Mr. Jefferson also declared that the United States government ‘condemned in the highest degree the conduct of any of its citizens who might personally engage in committing hostilities at sea against any of the nations who were parties to the war, and that it would exert all the means with which the laws and Constitution armed them to discover such as offended therein, and would bring them to condign punishment,’ and that ‘the practice of commissioning, equipping, and manning vessels in American ports to cruise on any of the belligerent parties was equally and entirely disapproved, and that the government would take effectual measures to prevent a repetition of it.” He likewise promised that the government would take measures for the liberation of the crew of the Grange, and restitution of the vessel and cargo, and concurred with Mr. Hammond that the establishment of a French prize court at Charleston was “not warranted by the usage of nations nor by the stipulations existing between the United States and France.”

Mr. Hammond’s note requesting the restoration of the prizes was reserved for further consideration.

M. Genet reached Philadelphia on the 16th of May, 1793. The previous day a note had been addressed to his predecessor, M. Ternant, by Mr. Jefferson, recounting the claims of violations of neutrality preferred by the British minister, Mr. George Hammond, and calling his attention to the seizure of the English bark Grange by the French frigate Abondance in the Delaware river. Attached to this note is a report of Attorney General Randolph on the general question of maritime jurisdiction. M. Genet restored the vessel. The correspondence continued until the 5th of June, when the final decision of the United States government was conveyed to M. Genet and Mr. Hammond in the following official notes:American State Papers, vol. i, p. 147.

Mr. Jefferson to Mr. Genet.Jefferson’s, Works, vol. iii, p. 571.

“Philadelphia, June 5, 1793.

“Sir: In my letter of May the 15th to Mr. Ternant, your predecessor, after stating the answer which had been given to the several memorials of the British minister of May the 8th, it was observed that a part still remained unanswered of that which respected the fitting out of armed vessels in Charleston, to cruise against nations with whom we were at peace.

“In a conversation which I had afterwards the honor of holding with you, I observed that one of these armed vessels, the Citizen Genet, had come into this port with a prize; that the President had thereupon taken the case into further consideration, and after mature consultation and deliberation, was of opinion, that the arming and equipping vessels in the ports of the United States to cruise against nations with whom they are at peace was incompatible with the territorial sovereignty of the United States, that it made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should depart from the ports of the United States.

“The letter of the 27th ultimo, with which you have honored me, has been laid be fore the President, and that part of it which contains your observations on this subject has been particularly attended to. The respect due to whatever comes from your friendship for the French nation and justice to all have induced him to re-examine the subject, and particularly to give your representations thereon the consideration they deservedly claim. After fully weighing again, however, all the principles and circumstances of the case, the result appears still to be, that it is the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits; and the duty of a neutral to prohibit such as would injure one of the warring powers, thatthe granting military commissions within the United States by any other authority than their own, is an infringement on their sovereignty, and particularly so when granted to their own citizens to lead them to act contrary to the duties they owe to their own country; that the departure of vessels thus illegally equipped from the ports of the United States will be but an acknowledgment of respect analogous to the breach of it, while it is necessary on their part, as an evidence of their faithful neutrality. On these considerations, sir, the President thinks that the United States owe it to themselves and to the nations in their friendship, to expect this out of reparation on the part of vessels marked in their very equipment with offense to the laws of the land, of which the law of nations makes an integral part.

“The expressions of friendly sentiment which we have already had the satisfaction of receiving from you, leave no room to doubt that the conclusion of the President being thus made known to you, these vessels will be permitted to give no further umbrage by their presence in the ports of the United States.

“I have, &c.,

“T. JEFFERSON.”

Mr. Jefferson to Mr. Hammond.

“Philadelphia, June 5, 1793.

“Sir: In the letter which I had the honor of writing you on the 15th of May, in answer to your several memorials of the 8th of that month, I mentioned that the President reserved for further consideration a part of the one which related to the equipment of two privateers in the port of Charleston. The part alluded to was that wherein you express your confidence that the executive government of the United States would pursue measures for repressing such practices in future, and for restoring to their rightful owners any captures which such privateers might bring into the ports of the United States.

“The President, after a full investigation of this subject and the most mature consideration, has charged me to communicate to you that the first part of this application is found to be just, and that effectual measures are taken for preventing repetitions of the act therein complained of; but that the latter part, desiring restitution of the prizes, is understood to be inconsistent with the rules which govern such cases, and would, therefore, be unjustifiable towards the other party.

“The principal agents in this transaction were French citizens. Being within the United States at the moment a war broke out between their own and another country, they determined to go into its defense; they purchase, arm, and equip a vessel with their own money, man it themselves, receive a regular commission from their nation, depart out of the United States, and then commence hostilities by capturing a vessel. If, under these circumstances, the commission of the captors was valid, the property according to the laws of war was by the capture transferred to them, and it would be an aggression on their nation for the United States to rescue it from them, whether on the high seas or on coming into their ports. If the commission was not valid, and consequently the property not transferred by the laws of war to the captors, then the case would have been cognizable in our courts of admiralty, and the owners might have gone thither for redress. So that on neither supposition would the Executive be justifiable in interposing.

“With respect to the United States, the transaction can in no wise be imputed to them. It was in the first moment of the war, in one of their most distant ports, before measures could be provided by the government to meet all the cases which such a state of things was to produce, impossible to have been known, and therefore impossible to have been prevented by that government.

“The moment it was known the most energetic orders were sent to every State and port in the Union to prevent a repetition of the accident. On a suggestion that citizens of the United States had taken part in the act, one who was designated was instantly committed to prison for prosecution; one or two others have been since named and committed in like manner; and should it appear that there were still others, no measures will be spared to bring them to justice. The President has even gone further. He has required, as a reparation of their breach of respect to the United States, that the vessels so armed and equipped shall depart from our ports.

“You will see, sir, in these proceedings of the President unequivocal proofs of the line of strict right which he means to pursue. The measures now mentioned are taken in justice to the one party; the ulterior measure of seizing and restoring the prizes is declined in justice to the other, and the evil thus early arrested will be of very limited effect; perhaps, indeed, soon disappear altogether.

“I have, &c.,

“TH. JEFFERSON.”

Shortly afterwards a case occurred in which M. Genet openly defied the authority of the government. An English letter of marque, the Little Sarah, had been captured by a French frigate and sent into Philadelphia, where she was fitted out as a privateer under the name of the Little Democrat. M. Genet was applied to to stop this vessel from sailing, but he refused to interfere, and said that force would be repelled by force. A detachment of 120 militia were sent to guard the vessel, but on M. Genet entering into an implied engagement that the vessels should not leave the river, they were withdrawn. The President then determined to submit to the judges a series of questions upon the points at issue between the government and M. Genet, and requested the latter to detain the Little Democrat, the ships Jane and William, in the Delaware, the Citoyen Genet, and her two prizes, the Lovely Lass and Prince William Henry, and the brig Fanny, in the Chesapeake, until the opinion of the judges could be ascertained. The Little Democrat sailed four or five days alter this, while the judges declined to answer the queries put by the Executive as out of the sphere of their judicial duties, which were limited to cases of legal controversy. The cabinet accordingly decided to lay down certain rules to be observed towards belligerents in the ports of the United States. These rules were carefully framed in accordance with the received doctrines of international law, slightly modified by the treaty between the United States and France, and were communicated to the collectors of customs with the following circular:Tucker, vol. i, p. 513.American State Papers, vol. i, p. 163.Mr. Jefferson to M. Genet, July 12, 1793.Tucker, vol. i, p. 515.

Instructions to the collectors of customs.

“Philadelphia, August 4, 1793.

“Sir: It appearing that repeated contraventions of our neutrality laws have taken place in the ports of the United States, without having been discovered in time for prevention or remedy, I have it in command from the President to address to the collectors of the respective districts a particular instruction oh the subject.Mr. Hamilton to the collectors of customs; Aug. 4, 1793.American State Papers, vol. i, p. 141.

“It is expected that the officers of customs in each district will, in the course of their official functions, have a vigilant eye upon whatever may be passing within the ports, harbors, creeks, inlets, and waters of such district, of a nature to contravene the laws of neutrality, and upon discovery of anything of the kind, will give immediate notice to the governor of the State, and to the attorney of the judicial district comprehending the district of the customs within which any such contravention may happen.

“To assist the judgment of the officers on this head, I transmit herewith a schedule of rules concerning sundry particulars which have been adopted by the President, as deductions from the laws of neutrality, established and received among nations. Whatever shall be contrary to these rules will, of course, be to be notified as above mentioned.

“There are some points which, pursuant to our treaties, and the determination of the Executive, I ought to notice to you.

“If any vessel of the powers at war with France should bring or send within your district a prize made of the subjects, people, or property of France, it is immediately to be notified to the governor of the State, in order that measures may be taken, pursuant to the 17th article of the treaty with France, to oblige such vessel and her prize, or such prize, when sent in without the capturing vessel, to depart.

“No privateer of any of the powers at war with France, coming within a district of the United States, can, by the 22d article of our treaty with France, enjoy any other privilege than that of purchasing such victuals as shall be necessary for her going to the next port of the prince or state from which she has her commission. If she should do anything besides this, it is immediately to be reported to the governor, and the attorney of the district. You will observe by the rules transmitted, that the term privateer is understood not to extend to vessels armed, for merchandise and war, commonly called with us letters of marque, nor, of course, to vessels of war in the immediate service of the government of either of the powers at war.

“No armed vessel which has been or shall be originally fitted out in any port of the United States, by either of the parties at war, is henceforth to have asylum in any district of the United States. If any such armed vessel shall appear within your district she is immediately to be notified to the governor and to the attorney of the district, which is also to be done in respect to any prize that such armed vessel shall bring or send in. At foot is a list of such armed vessels of the above description as have hitherto come to the knowledge of the Executive.

“The purchasing within and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war, and is not to be interfered with. If our own citizens undertake to carry them to any of the parties, they will be abandoned to the penalties which the laws of war authorize.

“You will be particularly careful to observe, and to notify as directed in other instances, the case of any citizen of the United States who shall be found in the service of either of the parties at war.

“In case any vessel shall be found in the act of contravening any of the rules or principles which are the ground of this instruction, she is to he refused a clearance until she shall have complied with what the governor shall have decided in reference to her. Care, however, is to be taken in this, not unnecessarily or unreasonably to embarrass trade or to vex any of the parties concerned.

“In order that contraventions may be the better ascertained, it is desired that the officer who shall first go on board any vessel arriving within your district shall make an accurate survey of her then condition as to military equipment to be forthwith reported to you; and that prior to her clearance a like survey be made, that any transgression of the rules laid down may be ascertained.

“But, as the propriety of any such inspection of a vessel of war in the immediate survey of the government of a foreign nation is not without question in reference to the usage of nations, no attempt is to be made to inspect any such vessel till further orders on the point.

“The President desires me to signify to you his most particular expectation that the instructions contained in this letter will be executed with the greatest vigilance, care, activity and impartiality. Omissions will tend to expose the government to serious imputations and suspicions, and proportionably to commit the good faith and peace of the country, objects of too much importance not to engage every proper exertion of your zeal.

“With consideration, I am, sir, &c,

“ALEXANDER HAMILTON.”

“1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful.

“2. Equipments of merchant vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.

“3. Equipments in the ports of the United States of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the XVIIth article of our treaty of amity and commerce with France. “4. Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c.

“5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature as being applicable to commerce or war, are deemed lawful.

“6. Equipments of every kind, in the ports of the United States, of privateers of the powers at war with France, are deemed unlawful.

“7. Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful; except those stranded or wrecked, as mentioned in the XVIIIth article of our treaty with France, the XVIth of our treaty with the United Netherlands, the XVIIIth of our treaty with Prussia.

“8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the powers at war with France, and except those vessels which have made prizes, &c.”

On the 7th of August Mr. Jefferson wrote to M. Genet, stating that the President had decided that compensation or restitution should be made in the case of vessels brought into United States ports as prizes by privateers fitted out in such ports since the 5th of June, and consequently called on him to restore these prizes, as otherwise the government of France would be considered liable for the repayment of the compensation paid to the persons aggrieved. Mr. Jefferson adds, “that besides taking efficacious measures to prevent the future fitting out of privateers in the ports of the United States, they will not give asylum therein to any which shall have been at any time so fitted out, and will cause restitution of all such prizes as shall be hereafter brought within their ports by any of the said privateers.”

American State Papers, vol. i, page 167.

Mr. Hammond was also informed of this decision of the President:

Mr. Jefferson to Mr. Hammond.

“Philadelphia, August 7, 1793.

“Sir: A constant expectation of carrying into full effect the declaration of the President against permitting the armament of vessels within the ports of the United States to cruise on nations with which they are at peace, has hitherto prevented me giving you a final answer on the subject of such vessels and their prizes. Measures to this effect are still taking, and particularly for excluding from all further asylum in our ports the vessels so armed and for the restoration of the prizes the Lively Lass, the Prince William Henry, and the Jane of Dublin, taken by them; and I am authorized in the meantime to assure you that should the measures for restoration fail in their effect, the President considers it as incumbent upon the United States to make compensation for the vessels.

“I have, &c.,MS. inclosure in Mr Hammond’s dispatch to Lord Grenville August 10, 1793.

“T. JEFFERSON.”

The affair of the Little Democrat, in which the government was thus “insulted and set at defiance by M. Genet,” determined them on asking for his recall; and the United States minister at Paris was accordingly instructed, on the 16th of August, to represent to the French government that if M. Genet persevered in his proceedings the United States government would be forced even to suspend his functions before a successor could arrive to continue them.”Mr. Jefferson to Mr. Morris, United States minister at Paris, August 16, 1793.American State Papers, vol. i, page 167.

M. Genet seems to have tried to test the neutrality of the United States government on every point. He maintained the right of the French government not only to issue commissions and to equip vessels, but also openly to man their privateers in American ports. Two seamen, named Henfield and Singletary, were arrested on board the Citizen Genet at Philadelphia, for having enlisted in the French service. M. Genet remonstrated in his usual bombastic style, demanding their immediate release. This was refused, and Henfield brought to trial. The jury, however, acquitted him on the plea of his having been ignorant of having committed an offense in taking service in a French privateer. M. Genet also engaged in an intrigue for the seizure of New Orleans by some malcontents in Kentucky. In short, he managed, during the few months he remained the representative of France, to damage the interests of his country in every conceivable way; while the temperate remonstrances of the English minister afforded a contrast to these exaggerated pretensions, and served to confirm the President in his policy of neutrality and to influence the cabinet in favor of England.M. Genet to Mr. Jefferson; June 1, 1793.American State Papers, vol. i, page 151.Tucker, vol. i, pages 517 and 518.

Certain prizes having been brought in by vessels fitted out after the 5th of June as well as those brought in by vessels fitted out before that date, of which restitution had already been refused, Mr. Hammond wrote on the 30th of August to Mr. Jefferson requesting to be informed of the precise intentions of the government respecting the restoration of prizes.MS. inclosure in Mr. Hammond’s dispatch to Lord Grenville of the 17th of September, 1793.

Mr. Hammond says: “I understand that all captures made subsequently to the 5th of June, and antecedently to the 7th of August, by any vessel fitted out, armed and equipped in the ports of the United States, are either to be restored to the captors, or a compensation for their full value is to be paid to their owners by the government of the United States, and that all prizes made by vessels of this description subsequently to the 7th of August are to be seized, and immediately restored by the government of the United States, or if the restitution cannot be effected, a compensation for their full value is to be paid in the same manner as in the former case.”

Mr. Jefferson replied on the 5th of September:

“Philadelphia, September 5, 1793.

“Sir: I am honored with yours of August 30. Mine of the 7th of that month assured you that measures were taken for excluding from all further asylum in our ports vessels armed in them to cruise on nations with which we are at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Jane, of Dublin, and that should the measures for restitution fail in their effect, the President considered it as incumbent on the United States to make compensation for the vessels.

“We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our shores, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in their effect, we are not bound by our treaties with those nations to make compensation.

“Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use towards that nation the same rule which, under this article, was to govern us with the other nations, and even to extend it to captures made on the high seas, and brought into our ports, if done by vessels which had been armed within them.

“Having, for particular reasons, forbore to use all the means in our power for the restitution of the three vessels mentioned in my letter of August 7, the President thought it incumbent on the United States to make compensation for them; and though nothing was said in that letter of other vessels taken under like circumstances, and brought in after the 5th of June, and before the date of that letter, yet, when the same forbearance had taken place, it was and is his opinion that compensation would be equally due.

“As to prizes made under the same circumstances, and brought in after the date of that letter, the President determined that all the means in onr power should he used for their restitution. If these fail, as we should not he hound by our treaties to make compensation to the other powers, in the analogous case, he did not mean to give an opinion that it ought to he done to Great Britain. But still, if any cases shall arise subsequent to that date, the circumstances of which shall place them on similar ground with those before it, the President would think compensation equally incumbent on the United States.

“Instructions are given to the governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports. Though they will, of course, take measures to be informed of them, and the general government has given them the aid of the custom-house officers for this purpose, yet you will be sensible of the importance of multiplying the channels of their information as far as shall depend on yourself or any person under your direction, in order that the governors may use the means in their power for making restitution. Without knowledge of the capture, they cannot restore it. It will always be best to give the notice to them directly; but any information which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit.

“Hence you will perceive, sir, that the President contemplates restitution or compensation in the cases before the 7th of August, and after that date, restitution, if it can be effected by any means in our power, and that it will be important that you should substantiate the fact that such prizes are in our ports or waters.

“Your list of the privateers illicitly armed in our ports is, I believe, correct.

“With respect to losses by detention, waste, spoliation, sustained by vessels taken as before mentioned, between the dates of the 5th June and the 7th August, it is proposed as a provisional measure that the collector of the customs of the district, and the British consul, or any other person you please, shall appoint persons to establish the value of the vessel and cargo, at the time of her capture, and of her arrival in the port into which she is brought, according to their value in that port.

“If this shall be agreeable to you, and you will be pleased to signify it to me, with the names of the prizes understood to be of this description, instructions will be given accordingly to the collectors of the customs where the respective vessels are.

“I have, &c.,

(Signed) “TH. JEFFERSON.”

This letter was appended to the treaty of the 19th of November, 1794.

The particular reasons referred to were the unwillingness of the United States government to oppose the sailing of the French privateers by force.Hertslett’s State Paper, vol. i, p. 801.

The result of the publication of the rules of the 4th August was that the system of privateering was, generally speaking, suppressed, though cases seem to have occurred until the arrival of M. Genet’s successor in February, 1794, who disavowed his acts, and recalled the commissions he had granted to privateers.Mr. Jefferson to Mr. Morris; August 16, 1793.American State Papers, vol. i. p. 167.

It must be remembered that the United States did not possess any navy at this time, the construction of a naval force not being carried out until 1794; so that even if the government wished to stop a privateer, they could only do so by employing militia to board her, unless she happened to be lying under the guns of a fort.

In October, M. Duplaine, the French vice-consul at Boston, having rescued by force a suspected vessel which had been seized by the marshal, the United States government withdrew his exequatur.

Congress met on the 3d of December, and in his address the President spoke of the measures adopted for the preservation of neutrality, and the necessity for legislation on the subject in the following terms:

“As soon as the war in Europe had embraced those powers with whom the United States have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted, and our disposition for peace drawn into question by the suspicions too oiten entertained by belligerent nations.” * * * * “In this posture of affairs, both new and delicate, I resolved to adopt general rules which should conform to the treaties and assert the privileges of the United States.” * * * “Although I have not thought myself at liberty to forbid the sale of prizes permitted by our treaty of commerce with France to be brought into our ports, I have not refused to cause them to be restored when they were taken within the protection of our territory or by vessels commissioned or equipped in warlike form within the limits of the United States. It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many eases which, though dependent on principles already recognized, demand some further provisions.American State Papers, vol. i, p. 21.

“Where individuals shall within the United States array themselves in hostility 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 next three years. Washington was thus left free to carry out his policy and to establish relations with England on a more friendly footing.Tucker, vol i, 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 ill-feeling 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 cruisers.

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, page 431.

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 federalists, that a special mission should be sent to England to settle the various questions in dispute.Tucker. vol i. page 544.

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 revocation of the edict of Nantes, a federalist, and friend of the English cause, was selected for the post of envoy.Vie de Washington, par De Witt.

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 view had not been lost by the vote of the Vice-President.Tucker, vol. i, 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 exactlv balanced.”

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

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 punishment.

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 on the 19th of November, 1794, of articles providing for the appointment of commissioners to consider the compensation to be awarded (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,”American State Papers, vol. i,: page 520.

“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 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.

February, 1794, the sloop Betsy, (a vessel captured by the French privateer the Citizen Genet, and sent in to Baltimore.)

Judgment.—No foreign power can rightfully erect any court of judicature within the United States unless by force of a treaty.Decisions in the Supreme Court of the United States. Curtis, vol. i, page 74. Curtis, vol. i, page 128.

The admiralty jurisdiction exercised by consuls of France in the United States is not of right.

August, 1795. Talbot v. Janson. Case of a Dutch vessel, the Magdalena, brought into Charleston by the privateer L’Ami de la Liberté, alleged to have been an American-owned ship, armed and equipped in Chesapeake bay and Charleston.Curtis, vol. i, page 128.

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.Ibid., vol. i. page 234.

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.Ibid., vol. i, page 237.

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

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 arming, &c., any private ship or vessel of war with intent, &c., or taking the command of or entering on board of, or purchasing any interest in any such vessel, under penalty of a fine of $10,000, or imprisonment for not more than ten years.“United States Statutes at Large, vol. i, page 520. Fifth Congress, sess. 1, ch. 1; June 14, 1797.

This act was entirely repealed by the act of 1818.

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.Curtis, vol. i, page 470.

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 rebels, and the subsequent condemnation of her cargo in the court of the French delegate at Santo Domingo, (Rose v. Himely. Case of the Sarah, February, 1808.) 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.Curtis, vol. ii, page 87.

Restitution decreed without costs.

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.Annual Register, 1866.

President Jefferson, in his message to Congress of the 2d of December, 1806, speaks of this expedition in the following terms: “Having received information that, in another part of the United States, a great number of private 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.”American State Papers, vol. i, page 68.

Writing to Don Valentine de Foronda in 1809, President Jefferson said of this transaction: “Your predecessor, soured on a question of etiquette against 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.”Jefferson’s Works, vol. v, page 473.

Mr. Dana, in his recent edition of Wheaton, remarks: “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.”Wheaton’s Elements of International Law is edited by R. H. Dana; 8th edition, 1866, page 558.— Note.

The war between Spain and her colonies broke out in 1810, and the United States government again found themselves placed in a position of great difficulty for maintaining their neutrality. The sympathies of the people of the United States were naturally warmly enlisted on behalf of their fellow republicans; while it would appear that the equipment of vessels to cruise against Spanish commerce was a profitable as well as a popular undertaking, and became a kind of commercial speculation.Correspondence between the governments of Spain and the United States, 1817–18, and of Portugal and the United States, 1816–’51.

In December, 1810, a vessel named the Exchange, of Baltimore, was 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 illegally equipped in a neutral country, the priz eeourts of such neutral country have power, and it is their duty, to restore the captured property, if brought within their jurisdiction, to its owner.Curtis, vol. iii, p. 379.

Vessel and cargo restored.

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 of the United States, or residents within the same, and especially within the State of Louisiana, are conspiring together to begin and set on loot, 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.American State Papers, vol. iv, p. 1.

“JAMES MADISON.

“Washington, September 1, 1815.”

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

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 munitions 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 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 he 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.”

On the 3d of March, 1817, a short act was passed, in which (in order to meet a question which had been raised as to whether the South American armies, not being formerly recognized as independent communities, came within the scope of the act of 1794) the terms “army, district, or people,” are inserted after the phrase “prince or state,” as it stands in the first section of the act of 1794.United States Statutes at Large, vol. iii, p. 370.“British and Foreign State Papers,” vol. iv, p. 839.

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, 1817, called attention to piratical establishments which had been constituted 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.”American State Papers, vol. iv, p. 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 States boundary.American State Papers, vol. iv, p. 132.

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 government. * * * The 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 successively 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.

A United States force was dispatched against both these establishments, and in December, 1817, they were forcibly suppressed. Spain remonstrated against the occupation of Amelia, island, but the United States government stated that it was a temporary measure which had been carried out in the public interest, and was not intended as an infraction of any Spanish rights of sovereignty.American State Papers, vol. iv, p. 183.

In 1818, a further foreign enlishment act was passed (April 3) repealing and revising the acts of 1794, 1797, and 1817. This act is the one now in force.“United States Statutes at Large,” vol. iii, p. 447.

The principal points in which it differs from the act of 1794 are as follows:“British and Foreign State Papers,” vol. ix, p. 382.

Section 1. Instead of the words “foreign prince or state,” the words are “foreign prince, state, colony, district, or people,” and so throughout the act.

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, page 345.

Judgment.—The government of the United States having recognized 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, page 406.

Judgment.—In the absence of any act of Congress on the subject, the courts of the United States would have authority, under the general law of nations, to decree restitution of property captured in violation of their neutrality.

Vessel and cargo restored with costs.

February, 1820, “La Amistad de Rues.”Ibid., vol. iv, page 673.

Judgment.—In cases of violation of our neutrality by any of the belligerents, 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.

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.

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.”Curtis, vol. v, page 269.

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 augmentation 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 which have violated our neutrality acts, the property may be restored if brought within our territory.

Curtis, vol. v, page 302.

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.”

Curtis, vol. v, page 374.

This was an action brought by the Spanish consul for the recovery of the brig Nereyda.

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 Franchesche; 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 Veuezuelan 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.

United States vs. Quincy, January, 1832.Curtis, vol. x, page 189.

The question before the court was as to the instructions which ought to have been given to the jury of the circuit court for the Maryland district in a prosecution against John D. Quincy for a violation of the act of 1818.

In December, 1828, the Bolivar, a small vessel of 70 tons, sailed for Baltimore from St. Thomas under the command of Quincy, with her owner, Armstrong, on board. At St. Thomas, Armstrong fitted her out as a privateer under the name of Las Damas Argentinas, to cruise under the Buenos Ayres flag against Brazil. Quincy continued to command her and made some prizes. He afterwards returned to the United States, and the prosecution in question was instituted against him for being concerned in fitting out the Bolivar.

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, and that on the part of the United States given.

“The second and third instructions asked on the part of the defendant were:

“That if the jury believe that when the Bolivar was fitted and equipped at Baltimore the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the said vessel, and had no present intention of using or employing the said vessel as a privateer, but intended, when he equipped her, to go to the West Indies to endeavor to raise funds to prepare her for a cruise, then the defendant is not guilty.

“Or if the jury believe that when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfillment of which wish depended on his ability to obtain funds in the West Indies for the purpose of arming and preparing her for war, then the defendant is not guilty.

“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.

Spanish and Portuguese claims, arising out of the system of privateering pursued by American citizens under the flags of the revolted colonies, have recently been so fully discussed in the communications between 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.Parliamentary Papers, “North America, No. 1, 1861,” &c.

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 commission or letters of marque for arming any ship or ships to act as privateers against the said United States, or against the said citizens, people or inhabitants of the said United States, or against the property of any of the inhabitants of any of them, from any prince or state with which the United States shall be at war.

“Nor shall any citizen, subject, or inhabitant of the said United States apply for, or take any commission or letters of marque for arming any ships to act as privateers against the subjects of his Catholic Majesty, or the property of any of them, from any prince or state with which the said King shall he at war. And if any person of either nation shall take such commissions or letters of marque, he shall be punished as a pirate.”

When diplomatic relations between Spain and the United States, which had been suspended in 1808, were renewed in 1815, the Spanish minister addressed a note to the Secretary of State containing proposals as the basis of negotiation for the settlement of the various differences in dispute between the two countries.

The Chevalier de Onis mentions as one of the points on which an understanding was urgent, “That the President will be pleased to give the necessary orders to the collectors of customs not to admit into the ports of the United States vessels under the insurrectionary flag of Carthagena, of the Mexican Congress of Buenos Ayres, or of the other places which have revolted against the authority of the King, my master, nor those coming from them, that they should not permit them to land, or to sell in this country the shameful proceeds of their piracy or atrocities, and much less to equip themselves in these ports, as they do, for the purpose of going to sea to destroy and to plunder the vessels which they may meet with under the Spanish flag. This tolerance, subversive of the most solemn stipulations in the treaties between Spain and the United States, and diametrically opposed to the general principles of public security and good faith, and to the laws of nations, produces the most melancholy effects on the interest and the prosperity of the subjects of his Catholic Majesty. Certain it is that neither Carthagena nor any other place in the Spanish dominions in this hemisphere, which has revolted, can he in communication with any power friendly to Spain, since neither on its part, nor on that of any other government, has their independence been acknowledged; and it is, consequently, an offense against the dignity of the Spanish monarchy, and against the sovereignty of the King, my master, to admit vessels from such places, manned and commanded by insurgents, and armed in the dominions of this confederation, particularly as they are all pirates who do not respect any flag, are justly considered the disgrace of the seas, and are execrated by all nations.” (The Chevalier de Onis to the Secretary of State, December 30, 1815.)American State Papers, vol. iv, p. 423. British State Papers, vol. iii, p. 109.

Mr. Monroe replied, “With regard to your third demand, the exclusion of the flag of the revolting provinces, I have to observe that, in consequence of the unsettled state of many countries, and repeated changes of the ruling authority in each, there being at the same time several competitors, and each party bearing his appropriate flag, the President thought it proper, some time past, to give orders to the collectors not to make the flag of any vessel a criterion or condition of its admission into the ports of the United States.” And he added: “What will he the final result of the civil war which prevails between Spain and the Spanish provinces in America is beyond the reach of human foresight. It has already existed many years, and with various success, sometimes one party prevailing and then the other. In some of the provinces the success of the revolutionists appears to have given to their cause more stability than in others. All that your government had a right to claim of the United States was that they should not interfere in the contest, or promote, by any active service, the success of the revolution, admitting that they continued to overlook the injuries received from Spain, and remained at peace. This right was common to the colonists. With equal justice might they claim that we would not interfere to their disadvantage; that our ports should remain open to both parties, as they were before the commencement of the struggle; that our laws regulating commerce with foreign nations should not be changed to their injury. On these principles the United States have acted.” (Mr. Monroe to the Chevalier de Onis, January 19, 1816.)American State Papers, vol. iv, p. 426. British State Papers, vol. iii, p. 119.

On the 10th of June, 1816, Mr. Monroe forwarded to the Chevalier de Onis a copy of a report from Mr. Dick, attorney of the United States for the district of Louisiana, dated March 1, 1816, denying the chevalier’s allegations of the open enlistment of men and equipment of expeditions to serve against Spain. “A regard to truth makes it necessary to say that what is alleged respecting the arming and fitting out of vessels within the waters of Louisiana, to be employed in the service of the revolutionary governments against the subjects or property of the King of Spain, is unfounded. At no period since the commencement of the struggle between the Spanish colonies and the mother country have vessels, to be employed in the service, of the colonies, been permitted to fit out and arm or to augment their force at New Orleans or elsewhere within the State of Louisiana.American State Papers, vol. iv, p. 431.

“On the contrary, it is notorious that at no one point of duty have the civil and military authorities of the United States directed more strenuously, or it is believed, more successfully, their attention than to the discovering and suppression of all attempts to violate the laws in these respects. Attempts to violate them by fitting out and arming and by augmenting the force of vessels have no doubt been frequent, but certainly in no instance successful, except where conducted under circumstances of concealment that eluded discovery and almost suspicion, or where carried on at some remote point of the coast beyond the reach of detection or discovery. In every instance where it was known that these illegal acts were attempting, or where it was afterwards discovered that they had been committed, the persons engaged, as far as they were known, have been prosecuted, while the vessels fitted out, or attempted to be fitted out, have been seized and libeled under the act of the 5th of June, 1794; and when captures have been made by vessels thus fitted out and armed, or in which their force was augmented or increased within our waters, where the property taken was brought within our jurisdiction, or even found upon the high seas by our cruisers and brought in, it has been restored to the original Spanish owners, and, in some instances, damages awarded against the captors.”

Mr. Dick appended a list, showing that during the year 1815 seven persons had been prosecuted and six vessels libeled under the act of 1796, (of which three were condemned,) and prizes restored to the Spanish claimants in nine cases.

It does not appear, however, that the measures adopted by the officers of the United States government, referred to by Mr. Dick, were efficacious in preventing violations of the foreign enlistment act to the satisfaction of the Spanish minister, for on the 2d of January, 1817, he addressed a farther representation to the Secretary of State: “The mischiefs resulting from the toleration of the armament of privateers in the ports of this Union, and of bringing into them, with impunity, the plunder made by these privateers on the Spanish trade, for the purpose of distributing it amongst those merchants who have no scruple in engaging in these piracies, have arisen to such a height that I should be wanting in my duty if I omitted to call your attention again to this very important subject. It is notorious, that although the speculative system of fitting out privateers, and putting them under a foreign flag, one disavowed by all nations, for the purpose of destroying the Spanish commerce, has been more or less pursued in all the ports of the Union, it is more especially in those of New Orleans and Baltimore, where the greatest violations of the respect due to a friendly nation, and, if I may say so, of that due to themselves, have been committed; whole squadrons of pirates having been sent out from thence, in violation of the solemn treaty existing between the two nations, and bringing back to them the fruits of their piracies, without being yet checked in these courses, either by the reclamations I have made, those of his Majesty’s consuls, or the decisive and judicious orders issued by the President for that purpose.” M. de Onis complains in this note of the proceedings of several privateers at Baltimore, New York, Norfolk, and New Orleans.British State Papers, vol. v, p. 365.

No answer seems to have been returned to M. de Onis’s note.

In January, February, and March, M. de Onis sent in 12 other notes in the same strain, and on the 28th of March the acting Secretary of State informed him that inquiry would be made and “adequate redress and punishment enforced, should it appear that the laws have been infringed by any of the acts complained of.”British State Papers, vol. v, pp. 368–379.

Five more notes from M. de Onis followed, principally complaining of the captures effected by the Independencia del Sud and Altravida, (see case of Santissima Trinidad,) and the asylum afforded to those vessels as well as to the Congress, Mongore, and other privateers in American ports.State Papers, vol. v, pp. 380-397.

On the 22d of April the acting Secretary of State inquired whether M. de Onis had power to conclude a treaty, as, if not, it was “deemed improper to entertain discussions of the kind invited by” his late notes.Ibid., p. 398.

M. de Onis continued his representations in eight more notes, in one of which, addressed to Mr. J. Q. Adams, dated the 2d of November, 1817, he says: “It is very disagreeable to me to have to repeat to you, sir, what unfortunately I have been several times under the necessity of submitting to the President through the medium of your predecessors; namely, that the act of Congress of the 3d of March, 1817, has in nowise lessened the abuses by which the laws are evaded, and render entirely illusory the laudable purposes for which they were enacted. From the greater part of the ports of these States there frequently sail a considerable number of vessels, with the premeditated intention of attacking the Spanish commerce, which carry their armament concealed in the hold. It rarely happens that they can be arrested, inasmuch as the collectors of customs say that they have not at their disposition the naval force necessary to effect it; on the other hand, armed vessels, under the flag of the insurgents, enter into the ports of the Union, and not only supply themselves with all necessaries, but also considerably increase the means they already have of destroying the trade of Spain, as has recently been the case at New York, whereby the (so-called) privateers of his Majesty’s revolted provinces, which are in reality nothing more than pirates, manned by the scum of all countries, enjoy greater privileges than the vessels of independent powers.” In May, 1818, M. de Onis, referring to a French expedition prepared at Philadelphia under General Lallemand, and which was supposed to be intended to operate against Mexico, stated to Mr. Adams, “I would have considered myself dispensed from the necessity of again pressing this subject on your attention if it had appeared possible for me to restrain these armaments by the employment of judicial means; but unfortunately the act of Congress of the 20th of April last, for preserving neutrality with foreign nations, and others already in force, although highly judicious, are easily eluded; and although these practices are public and notorious throughout the whole Union, his Majesty’s consuls advise me that through a deficiency of evidence they cannot be restrained by a regular application of the law.” (The Chevalier de Onis to Mr. Adams, May 7, 1818.)Ibid., pp.398–415American State Papers, vol. iv, p. 199.British State Papers, vol. vi, p. 225.

On the 9th of June, 1818, M. de Onis represented that there were then at Baltimore four privateers—the Independencia del Sud, the Mongore, the Republicano, and the Alerta, three of which were notoriously fitted out there, and the fourth was a schooner captured from Spanish owners. All these vessels were commanded by Americans, and manned, with scarcely an exception, by American crews; that, however clear the facts might be to everybody, it was in vain to seek evidence to prove them, “as a great portion of the commercial people of Baltimore being interested in the cases which produce my present reclamations, no one is willing to come forward and offer testimony against what is termed the general interest.”British State Papers, vol. vi, p. 226.

M. de Onis continued his complaints during the summer of 1818, and called attention particularly to the purchase and equipment of two privateers at New York.

Mr. Adams at length replied as follows:Ibid., vol. vi, p. 262.

“I have received your letters of the 27th ultimo and 5th instant with their respective inclosures, all of which have been laid before the President. With regard to the two vessels alleged to have been equipped at New York for the purpose of cruising under the flag of Buenos Ayres against Spanish subjects, the result of the examination which has taken place before a judge of the Supreme Court of the United States has doubtless convinced you that no prosecution commenced by the government of the United States against the persons charged with a violation of their laws and their neutrality could have been necessary or useful to you, no transgression of the law having been proved against them.

* * * * * * * * * *

“I am further instructed by the President to assure you of the satisfaction with which he has seen, in the last paragraph of your letter, your expectation of being speedily enabled to make proposals containing the bases of a treaty which may adjust, to mutual satisfaction, all the existing differences between our two nations, and his earnest hope that this expectation, in the fulfillment of which this government have confided, and adopted measures corresponding with it, may be realized at an early day.”

Negotiations were shortly afterwards set on foot for the conclusion of a treaty between the two countries, for the settlement of the differences which had so long existed between them, and among the proposals put forward by the Spanish government were a mutual renunciation of “all claims for damages or injuries which they themselves, or their respective subjects or citizens, may have suffered,” and the adoption of such laws or measures as might be required “to remedy and cut up by the roots the abuses which, contrary to the law of nations, and contrary to what is expressly stipulated in the treaty of 1795, above cited, daily occur in some ports of this Union, in consequence of the vague and arbitrary interpretation which it seems the measures until now adopted are susceptible of, and by which means the law is eluded.” (Mr. Adams to the Chevalier de Onis, October 24, 1818.)M. de Onis to Mr. Adams, October 24, 1818.State Papers, vol. v, p. 265.Ibid., pp. 267-277.

The United States government assented to the mutual renunciation of claims, but refused the other proposal, as they considered there was no occasion for any new laws or declarations. “Of the many complaints which you have addressed to this government in relation to alleged transactions in our ports, the deficiency has been, not in the meaning or interpretation of the treaty, but in the proof of the facts which you have stated, or which have been reported to you, to bring the cases of complaint within the scope of the stipulations of the treaty.” (Mr. Adams to M. de Onis, October 31, 1818.)British State Papers, vol. vi, p. 281.

To this the Spanish minister rejoined:

“Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several ports of the Union against the vessels and property of the Spanish nation; and it is equally so, that all the legal suits hitherto instituted by his Catholic Majesty’s consuls in the courts of their respective districts, for its prevention, or the recovery of the property when brought into this country, have been, and still are, completely unavailing. The artifices and evasions by means of which the letter of the law has on these occasions been constantly eluded are sufficiently known, and even the combination of interests in persons who are well known, among whom are some holding public offices. With a view to afford you and the President more complete demonstration of the abuses, aggressions, and piracies alluded to, I inclose you correct lists, extracted from authentic documents deposited in the archives of this legation, exhibiting the number of privateers or pirates fitted out in the United States against Spain, and of the prizes brought by them into the Union, as well as of those sent to other ports, together with the result of the claims made by the Spanish consuls in the courts of this country. Among them you will find the case of two armed ships, the Horatio and Curiazo, built at New York, and detained by his Majesty’s consul there on the ground of their having on board 30 pieces of cannon concealed, with their carriages, and a crew of 160 men. On which occasion it was pretended that it could not be proved that these guns were not an article of commerce, and they finally put to sea without them, the extraordinary number of officers and crew passing for passengers. The number of privateers or pirates fitted out or protected in the ports of this republic, as well as of the Spanish prizes made by them, far exceeds that contained in the within lists; but I only lay before your government those of which I have certain and satisfactory proofs. The right of Spain to an adequate indemnity for all the spoliations committed by these privateers or pirates on the Crown and subjects of his Catholic Majesty, is undeniable; but I now submit it to your government, only to point out the extreme necessity of putting an end to these continued acts of hostility and depredation, and of cutting short these enormous and flagrant abuses and evils, by the adoption of such effectual precautions and remedies as will put it out of the power of cupidity or ingenuity to defeat or elude them. In vain should we endeavor amicably to settle and accommodate all existing differences, and thus establish peace and good understanding between the two nations, if the practice of these abuses and the course of these hostilities and piracies on the commerce and navigation of Spain should, as heretofore, continue uninterrupted in the United States.” (The Chevalier de Onis to Mr. Adams, November 16, 1818.)British State Papers, vol. vi, p. 285.

The Secretary of State, in reply, expressed the readiness of his government to continue the negotiations, provided the Spanish minister would consent to waive a certain portion of his proposition, (relating to the transactions in Florida and the western boundary,) but added, that if he did not feel at liberty to proceed with the negotiations on those terms, he (Mr. Adams) was ready to exchange with him the ratifications of the convention of 1802. (Mr. Adams to M. de Onis, November 30, 1818.)State Papers, vol. vi, p. 291.

On the 22d of February, 1819, a treaty of amity, settlement, and limits was concluded at Washington between the United States of America and his Catholic Majesty, and the following is a statement of the claims which each party consented to renounce:

Article IX. “The two high contracting parties, animated with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them, and of confirming the good understanding which they wish to be forever maintained between them reciprocally, renounce all claim for damages or injuries which they themselves, as with as their respective citizens and subjects, may have suffered until the time of signing this treaty.State Papers, vol. viii, p. 530.

“The renunciation of the United States will extend—

“1. To all the injuries mentioned in the convention of 11th August, 1802.

“2. To all claims on account of prizes made by French privateers and condemned by French consuls within the territory and jurisdiction of Spain.

“3. To all claims and indemnities on account of the suspension of the right of deposit at New Orleans in 1802.

“4. To all claims of citizens of the United States upon the Spanish government, statements of which, soliciting the interposition of the government of the United States, have been presented to the Department of State, or to the minister of the United States in Spain, since the date of the convention of 1802, and until the signature of this treaty.

“The renunciation of his Catholic Majesty extends—

“1. To all the injuries mentioned in the convention of 11th August, 1802.

“2. To the sums which his Catholic Majesty advanced for the return of Captain Pike from the Provincias Internas.

“3. To all injuries caused by the expedition of Miranda, which was fitted out and equipped at New York.

“To all claims of Spanish subjects upon the government of the United States arising from unlawful seizures at sea or within the ports and territorial jurisdiction of the United States.

“Finally, to all the claims of subjects of his Catholic Majesty upon the government of the United States, in which the interposition of his Catholic Majesty has been solicited before the date of this treaty, and since the date of the convention of 1802, or which may have been made to the department of foreign affairs of his Majesty or to his minister in the United States.

“And the high contracting parties respectively renounce all claim to indemnities for any of the recent events or transactions of their respective commanders and officers in the Floridas.

“The United States will cause satisfaction to he made for the injuries, if any, which by process of law shall be established to have been suffered by the Spanish officers and individual Spanish inhabitants by the late operations of the American army in Florida.”

This treaty concludes the published correspondence respecting the Spanish claims.

The correspondence between Portugal and the United States will be found in a convenient shape for reference in the appendix to the “Alabama” papers, republished by Messrs. Longmans, Green & Co., in 1867.

It was laid before Congress on the 4th of February, 1852, together with the correspondence relating to the claims of United States citizens in Portugal arising out of the case of the General Armstrong.Executive Documents, House of Representatives, No. 53, 32d Congress, 1st session.

See also British State Papers, vol. 222. The following is the succinct account of this correspondence, given in Lord Russell’s note to Mr. Adams of the 30th of August, 1865, (Parliamentary paper, North America, No. 1, 1866, p. 26.)

“The correspondence to which I refer began in December, 1816, and closed with a letter of the Portuguese minister in November, 1850. It cannot be pretended that the reclamations of a friendly power extending over 34 years did not receive the gravest attention of the American government.

“In his first letter, the Portuguese envoy at Washington complains that Mr. Taylor, of Baltimore, an American citizen, had directed Captain Fish, of the Romp, an American ship, to cruise as a privateer under the insurgent colors of Buenos Ayres against the subjects of Portugal.

“He adds, ‘The 18th of last month (November) the frigate Clifton, Captain Davis, armed with 32 guns of various calibers, and a crew of 200 men, sailed from Baltimore for Buenos Ayres. This ship anchored below that port, where it has remained for about a fortnight or more waiting for the American ship Independence of the South, armed with 16 guns, and for the ships Romp, Tachahoe, Montezuma, and Spanker, and two others newly constructed, which were fitting with great activity and which had not yet got names. All were to sail together, to cruise in the eastern and western seas of South America, under the insurgent colors of Buenos Ayres. No doubt can be entertained of their instructions being the same as those of Captain Fish, and that they will act hostilely against Portuguese ships.’

“The Portuguese envoy, Joseph Correa de Serra, prays for an amendment of the law of the United States with a view to render it more efficient in such cases. A law having been passed by Congress for this purpose, the Portuguese envoy, in May, 1817, requests that the President will desire the United States officers on the outposts to use greater vigilance.

“In March, 1818, he eomplains that three Portuguese ships have been captured ‘by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors.’

“In October of the same year the Portuguese envoy complains that a Portuguese prize is fitting in the Patuxent, to cruise against Portuguese commerce.

“In November of the same year the Portuguese minister states to Mr. Adams that, obliged by his duty to inquire into the nature of the armed ships that had of late insulted the flag of his sovereign and committed incalculable depredations on the property of his subjects, he had found, to his sorrow, multiplied proofs that many of them were owned by citizens of the United States, and had been fitted in the ports of the Union. He goes on to complain of the difficulties in the way of prosecution, but compliments the President on his ‘honorable earnestness.’

“In December of the same year the Portuguese minister complains of the armed vessel Irresistible, which had been committing ‘depredations and unwarrantable outrages on the coast of Brazil.’ He says, it is proved by depositions that John Daniels, the commander of the ship, is an American, and all the crew are Americans. He prays that, if the ship should come into an American port, means may be taken to bring the said captain and crew within reach of the laws made to punish such scandalous proceedings.

“In March, 1819, M. Correa de Serra states, as minister of his sovereign, that Artigas, whose flag is frequently waving in the port of Baltimore, and which is carried by Portuguese prizes in the ports of the Union, has been expelled far from the countries which could afford him the power of navigating, and has not a foot length of sea-shore in South America where he can show himself. He prays that the Artigan flag may be declared illegal.

“In November, 1819, after expressing his gratitude for the proceedings of the Executive, the same minister complains that the evil is rather increasing. He is in possession of a ‘list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which had been captured during a period of profound peace, One city alone on the coast of the United States had 26 armed ships which preyed on Portuguese commerce, and a week ago three armed ships of this kind were in that port waiting for a favorable occasion for sailing on a cruise.’

“In June, 1820, the Portuguese minister complains that a Portuguese prize had been sold by auction at Baltimore to Captain Chase, (a notorious privateersman,) and was to be immediately fitted out as a privateer to cruise against the Portuguese Indiamen.

“In July of the same year, the Portuguese minister sends a list of ‘the names and value of 19 Portuguese ships and their cargoes, taken by private armed ships, fitted in the ports of the Union, by citizens of those States.’ His Sovereign wishes the affair to be treated with that candor and conciliating dignified spirit which becomes two powers who feel a mutual esteem and have a proper sense of their moral integrity. ‘In this spirit I have the honor to propose to this government to appoint commissioners on their side, with full powers to confer and agree with his Majesty’s ministers on what reason and justice demand.’

“In December, 1820, the Chevalier Amado Grehon transmitted to Mr. Adams a copy of 12 claims, with the value of the ships, desiring him to add them to the list furnished by the Chevalier Correa de Serra.

“In April, 1822, the same minister repeats the proposal made in July, 1820, ‘of having recourse to commissaries chosen by both governments for the purpose of arranging the indemnities justly due to Portuguese citizens for the damage which they have sustained by reason of piracies supported by the capital and the means of citizens of the United States; an essential condition which, in this way repairing the past, secures also the future.’

“On the 25th of May, 1850, the chargé d’affaires of Portugal, writing to the Secretary of State of the United States, declares, ‘The undersigned is authorized to come to an understanding with the new Secretary of State upon the subject, and to submit the voluminous documents and papers in his possession to the joint examination and decision of the commissioners or arbitrators appointed by the American government on the one part, and the undersigned on behalf of her Majesty’s government on the other,’ &c.

“Having thus related the complaints of the Portuguese government during the years which elapsed from 1816 to 1822, and from 1822 to 1850, I will now give from the organs of the United States the answers which that government gave to these solemn and reiterated complaints.

“In March, 1817, the Secretary of State transmitted to the Portuguese minister at Washington an act of Congress, passed on the 3d of that month, to preserve more effectually the neutral relations of the United States. On the 14th of March, 1818, in answer to a letter complaining of the capture of three Portuguese ships by privateers, Mr. Adams says:

“‘The government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses lay captures, 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. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved.

“The documents to which you refer must of course be ex parte statements, which in Portugal or in Brazil, as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners should it also be brought within our jurisdiction, and found, upon judicial inquiry, to have been taken in the manner represented by your letter. By the universal law of nations the obligations of the American government extend no further.’

“The Secretary of State in subsequent letters promises to prosecute in the United States courts persons chargeable with a violation of the laws of the United States in fitting out and arming a vessel within the United States for the purpose of cruising against the subjects of the Queen of Portugal,

“To the proposal to appoint commissioners, made in July, 1820, the United States Secretary of State, on the 30th of September of the same year, replies as follows:

“‘The proposal contained in your note of the 16th of July last has been considered by the President of the United States with all the deliberation due to the friendly relations subsisting between the United States and Portugal, and with the disposition to manifest the undeviating principle of justice by which this government is animated in its intercourse with all foreign governments, and particularly with yours. I am directed by him to inform you that the appointment of commissioners to confer and agree with the ministers of his most faithful Majesty upon the subject to which your letter relates, would not he consistent either with the Constitution of the United States nor with any practice usual among civilized nations.’

“He proceeds to say:

“‘If any Portuguese subject has suffered wrong by the act of any citizen of the United States within their jurisdiction, it is before those tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States committed out of their jurisdiction and beyond their control, the government of the United States is not responsible.

“‘To the war in South America, to which Portugal has for several years been a party, the duty and the policy of the United States has been to observe a perfect and impartial neutrality.’

“The same reply is again given to Chevalier Amado Grehon in a letter dated the 30th of April, 1822:

“‘I am at the same time directed to state that the proposition of the Chevalier Correa de Serra, in his note of the 16th of July, 1820, for the appointment of commissaries chosen by both governments to arrange indemnities claimed by Portuguese citizens for damages stated by them to have been sustained by reason of piracies supported by the capital and means of citizens of the United States, cannot be acceded to. It is a principle well known and well understood that no nation is responsible to another for the acts of its citizens, committed without its jurisdiction and out of the reach of its control.’

“The policy of the United States is further explained in a dispatch of Mr. Secretary Adams to General Dearborn, dated the 25th of June, 1822. It is there set forth that in the critical state of the relations of the two countries it is necessary to employ the agency of a person fully qualified to represent the interests of the United States. It is affirmed that whenever Portuguese captured vessels have been brought within the jurisdiction of the United States, decrees of restitution have been pronounced.

“In referring, however, to the list of captures, and the demand of a joint commission to determine and assess the damages to be paid by the United States, the former refusal was thus repeated: ‘As there was no precedent for the appointment of such a commission under such circumstances, and as not a single capture had been alleged for which the United States were justly responsible, this proposal was of course denied; and nothing further was heard upon the subject until the 1st of April last, when a note was received from the present chargé d’affaires of Portugal, leading to a correspondence, copies of which are now furnished you.’

“The correspondence seems not to have been resumed till 1850, when, as has been shown, the demand for a commission was repeated.

The Secretary of State of the United States thereupon gave this summary and final answer, dated May 30, 1850:

“‘The undersigned is surprised at the reappearance of these absolute reclamations, accompanied by the renewal of the ancient proposition to appoint a joint commission to determine and assess damages, a proposition which was rejected at the time upon substantial grounds; and without the minister’s assurance to that effect, the undersigned would not have supposed it credible that Portugal seriously cherished any intention to revive them. In reply, therefore, to the note which the minister of her most faithful Majesty has presented in the name of his government, the undersigned must mow, by the President’s order, inform him that he declines reopening the proffered discussion.’

“This dispatch is signed ‘John M. Clayton.’

“A long and able dispatch of the Portuguese minister at Washington, recapitulating all the grievances of Portugal, dated November 7, 1850, does not appear to have received an answer.”

After the close of the war between Spain and Portugal, Brazil and the South American provinces, the foreign enlistment act seems not to have been called into requisition in any prominent case until 1848, when the United States prohibited a ship of war, purchased for the German fleet during the war with Denmark, from sailing from New York except under the bond required by the act of 1818.

In 1850 a remarkable instance was afforded of the manner in which the foreign enlistment act could openly be defied, when the sympathies of the American people were in favor of the offenders, in the expedition against Cuba under Lopez.

Lopez had been for some time preparing an expedition for the invasion of Cuba, and on the 7th of May, 1850, left New Orleans in a steamer with about 500 men, accompanied by two other vessels, and on the 17th landed at Cardenas, a small town on the northwest side of the island. Lopez occupied the town; but shortly afterwards troops arrived from Havana, and he was compelled to re-embark, and escaped to Savannah.Annual Register, 1850.

On the 27th of May Lopez was arrested, (see Judge Betts’s charge in the Times of the 13th of June, 1850,) but “no delay being granted by the district judge to procure evidence against him, he was discharged, amid the cheers of a large crowd. On the 15th of July, 42 of the country prisoners (passengers) were liberated by the Spanish authorities, and were taken to Pensacola by the United States ship Albany. Ten of them were retained for trial. On the 21st of July the grand jury of the United States district court at New Orleans found a true bill against Lopez and 15 others for violating the act of 1818. The government failed in making out its case against one or two of the parties, and finally abandoned the prosecution.”Memoir of Lopez in the New York Herald, quoted in the Chronicle of the 23d of September, 1851.

Undeterred by the failure of the first expedition, Lopez at once set to work to organize another, in which he was “countenanced, aided, and joined by citizens of the United States.” * * * “Very early in the morning of the 3d of August, 1851, a steamer called the Pampero departed from New Orleans for Cuba, having on board upwards of 400 armed men, with evident intentions to make war upon the authorities of that island.” The United States government having received intelligence that such designs were entertained, had issued a proclamation warning American citizens of their unlawful character, and had also given instructions to the proper officers of the United States. However, in spite of these measures, the steamer in which the fillibusters were embarked “left New Orleans stealthily and without a clearance, and, after touching at Key West, proceeded to the coast of Cuba.”President’s message, December 1, 1851.Annual Register, 1851.

The expedition landed in Cuba on the 12th of August, and proved an entire failure. The Spanish troops defeated the invaders without difficulty, and either took prisoner or dispersed the whole body. Fifty of the prisoners were shot, and Lopez publicly executed at Havana. The intelligence of the execution of Lopez and the prisoners, 40 of whom are stated to have been Americans, produced a great excitement in the United States. A riot took place at New Orleans, in which the Spanish consulate was sacked; mass meetings were held at the principal cities for the purpose of denouncing the conduct of the Cuban authorities, and further expeditions projected. The Spanish government, however, released and sent back to the United States a number of prisoners, who complained bitterly of having been deceived by Lopez by exaggerated accounts of the condition of affairs in Cuba; and the public feeling in the United States gradually cooled down, without any more attempts being made against the island.

In 1855 the Maury was detained at New York on the information of her Majesty’s consul that she was intended for a Eussian privateer. The evidence, however, failed, and Sir Joseph Crampton, her Majesty’s minister, withdrawing the charge against her, the Maury sailed, and nothing more was heard of the matter. It was supposed that she really was intended for a privateer to act in the China seas, but that the peace of 1856 prevented her from being thus used.

The expeditions of Miranda in 1806, and of Lopez in 1850 and 1851, were rivaled in flagrant violation of the foreign enlistment act by the proceedings of Walker and the Central American fillibusters in 1857, 1858, 1859.

The disturbed state of the Central American republics, especially Nicaragua, rendered them a tempting prey to such adventurers, and in November, 1857, it was notorious that Walker was fitting out a fiilibustering expedition.

On the 10th of that month he was arrested at New Orleans and held to bail in $2,000 (about £400) to appear on the 11th for examination, on a charge of infringing the act of 1818. On the morning of the 11th, however, he embarked with 300 unarmed followers for Mobile, where the party were met by a steamer called the Fashion, with 50 recruits on board, and set sail, as was supposed, for Central America. The United States government gave orders for them to be pursued, and Commodore Paulding succeeded in arresting Walker.

In reporting these occurrences, Lord Napier, then her Majesty’s minister at Washington, states, “I believe that the President and General Cass sincerely deprecate and regret the present attempt to invade the peace of Central America.” (Lord Napier to the Earl of Clarendon, November 16, 1857.)Parliamentary Paper correspondence respecting Central America, 1856–60. Presented 1860, page 67.

It does not appear whether Walker was brought to trial for this offense, but if so the proceedings could not have been very efficacious, as in the following year he renewed his preparations for an expedition on a larger scale, and on the 30th of October, 1858, President Buchanan issued a proclamation: “Whereas information has reached me, from sources which I cannot disregard, that certain persons, in violation of the neutrality laws of the United States, are making a third attempt to set on foot a military expedition within their territory against Nicaragua, a foreign state with which they are at peace.” * * * “From these circumstances the inference is irresistible that persons engaged in this expedition will leave the United States with hostile purposes against Nicaragua. They cannot, under the guise which they have assumed that they are peaceful emigrants, conceal their real intentions, and especially when they know, in advance, that their landing will be resisted, and can only be accomplished by an overpowering force. This expedient was successfully resorted to previous to the last expedition, and the vessel in which those composing it were conveyed to Nicaragua obtained a clearance from the collector of the port of Mobile. Although, after a careful examination, no arms or munitions of war were discovered, yet, when they arrived in Nicaragua, they were found to be armed and equipped, and immediately commenced hostilities.Ibid., p. 136.

“The leaders of former illegal expeditions of the same character have openly expressed their intention to renew hostilities against Nicaragua One of them, who has already been twice expelled from Nicaragua, has invited, through the public newspapers, American citizens to emigrate to that republic, and has designated Mobile as the place of rendezvous and departure, and San Juan del Norte as the port to which they are bound. This person, who has renounced his allegiance to the United States, and claims to be President of Nicaragua, has given notice to the master of the port of Mobile that 200 or 300 of these emigrants will be prepared to embark from that port about the middle of November,” &c., &c.

Notwithstanding this proclamation, the fillibusters succeeded in sailing from Mobile on the 7th of December, 1858, in the “Susan,” without a clearance. A revenue cutter attempted to stop her, but was forcibly resisted. Two other vessels, the “Fashion” and the “Washington,” with military stores, afterwards joined the “Susan,” but the expedition broke down in consequence of the “Susan” being wrecked. Walker and his followers then proceeded to California by the Isthmus of Panama, whence they intended to make a descent on Punta Arenas.Ibid., p. 163.

This attempt was not carried into execution, and Walker returned to Louisiana and organized a further expedition. The United States government gave directions to stop it, and concerted measures with the British and French governments to prevent any such expeditions landing on the coasts of Central America. Moreover, 150 of the men concerned in the last attempt were arrested at New Orleans.

Nevertheless, Walker eluded the vigilance of the authorities, and again escaped without a clearance in the “Fashion” from Mobile, in November, 1859, having deceived the collector of customs by applying for a clearance, which the collector refused, for another steamer called the “Philadelphia.” At the same time a large force of fillibusters are stated to have got away from Charleston, Mobile, and other ports, by means of false papers and other similar devices.Ibid., pp. 296, 297.

In June, 1860, Walker, with a party of American fillibusters, is reported to have arrived at the Bay islands in the “John A. Taylor.” Walker’s career was eventually brought to a close by his being shot at Truxillo, September, 1860.Ibid., p. 328.

On the 6th of June, 1866, the President published a proclamation warning United States citizens against engaging in an apprehended expedition against Canada, (the Fenian raid,) and on the 5th of June the Attorney General instructed the district attorneys and marshals to arrest “all prominent, leading, or conspicuous persons called ‘Fenians’ whom they had probable cause to believe have been or may be guilty of violations of the neutrality laws.” Some prosecutions were subsequently instituted against certain of the Fenian leaders, but abandoned.

In 1866 a resolution was adopted by the House of Representatives which resulted in an inquiry by the Committee of Foreign Affairs into the operation of the foreign enlistment act of 1818; and in July, General Banks presented the report of the committee, with a draft of a bill by which it was proposed to alter the provisions of that act. The principal alterations proposed were the omission of section 4, (the clause forbidding the fitting out of privateers in foreign ports to cruise against American commerce,) sections 6, and part of 8, (giving the President power to stop military expeditions,) and sections 10 and 11, the bonding clauses.Mr. Bemis’s pamphlet “American Neutrality,” 1866.

The intention of this draft bill was to make the American act correspond with the British act, or, as was said at the time, to “scale down” the one to the proportions of the other. The report of the committee called forth a pamphlet by Mr. Bemis, in which he shows how inexpedient and impolitic the proposed alterations would have been, and compares the amended act with the British statute.

Copies of this pamphlet have been circulated among the commissioners.

Congress adjourned shortly after this report was presented and had been referred to the Senate, and in March, 1867, the Senate Committee of Foreign Affairs were “discharged from further consideration” of the bill.

In the mean while, a case had been brought before the district court at New York, in which the act of 1818 was enforced against a vessel alleged to be intended for the Chilian service in the war between Chili and Spain.New York Herald, March 1, 1867.

This vessel, the Meteor, had been built as a ship of war for sale to the United States government, but the civil war having terminated, the sale was not effected. She was acknowledged to have been built to carry 11 or 12 guns, and the negotiations of the agent of the owners for her sale to the Chilian government were shown by conclusive evidence.

The vessel was libeled in the district court in February, 1866, but Judge Betts’s decision in the case was not formally given until November.“The world,” New York, November 30, 1866.

In the elaborate judgment then delivered, the standard decisions of the Supreme Court are reviewed at length. The following are some of the more important passages:

“The crime denounced is fitting-out or arming.

“It was strenuously urged by the counsel for the claimant, on the hearing, that the only crime created by the third section of the act of 1818 is the crime of fitting-out and arming a vessel with the intent named in the statute; and that, although the attempt to commit that crime, or the procuring that crime to be committed, or the being knowingly concerned in committing that crime, is punishable under the statute, yet the body of the crime is the fitting-out and arming, and nothing short of that is punishable under the statute, either against the wrong doer personally, or against the offending res; and the interpretation sought to be put by the counsel upon these words of the statute, ‘or shall knowingly be concerned in the furnishing, fitting-out, or arming of any ship or vessel, with intent,’ &c., is that it is not necessary to the criminality of the individual that he should have performed every part of the crime, but it is enough if he was knowingly concerned in any one step in the chain of conduct which completed the criminality, or would have completed it if carried out, but still the crime must be the crime of fitting-out and arming, either completed or attempted. But the court cannot adopt this interpretation of the statute. The mischief against which the statute intended to guard was not merely preventing the departure from the United States of an armed vessel, but the departure of any vessel intended to be employed in the service of any foreign power, to cruise or commit hostilities against any other foreign power with whom the United States are at peace. The neutrality of the government of the United States, in a war between two foreign powers, would be violated quite as much by allowing the departure from its ports of an unarmed vessel with the clear intent to cruise or commit hostilities against one of the belligerents, as it would be by permitting the departure from its ports of an armed vessel with such intent. If the intent to cruise or commit hostilities exists when the vessel departs, and the vessel is one adapted to the purpose, the subsequent arming is a very easy matter. The facility with which this can be done was made manifest in the case of the Shenandoah and other vessels, which, during the late rebellion, left England unarmed, but with the full intent on the part of those who sent them forth that they should be used to cruise and commit hostilities against the United States, and were subsequently armed in neutral waters. It would be a very forced interpretation of the statute to say that it was not an offense against it to knowingly fit out a vessel with everything necessary to make her an effective cruiser, except her arms, and with the intent that she should become such a cruiser, because it should not be shown that there was any intent that she should be armed within the United States. The evil consequences which would flow from interpreting the statute to mean that the crime must include the arming of the vessel within the United States, become especially apparent in reference to that part of the third section which forbids the issuing or delivering a commission, within the territory or jurisdiction of the United States, for any ship or vessel, to the intent that she may be employed for the purpose named in the section. Under such an interpretation of the statute it would be no offense to issue or deliver a commission within the United States for any vessel, unless such vessel were actually armed at the time, or perhaps were intended to be armed prior to her departure from the United States; and it would be no offense to issue a commission within the United United States for a vessel fitted and equipped to cruise or commit hostilities, and intended to cruise and commit hostilities, so long as such vessel was not armed at the time, and was not intended to be armed within the United States, although it could be shown that a clear intent existed on the part of the person issuing or delivering the commission, that the vessel should receive her armament the moment she should be beyond the jurisdiction of the United States.” * * *

“THE SANTISSIMA TRINIDAD CASE.

“Much reliance was placed by the counsel for the claim, in his summing up, upon the doctrine supposed by him to have been laid down by the Supreme Court in the case of the Santissima Trinidad. That doctrine was stated by the counsel in various forms, but the principle contended for was, that freedom of commerce is allowed to a neutral to furnish to a belligerent warlike materials or warlike vessels as articles of merchandise or traffic; that, while the principle of the law of nations is recognized which prohibits neutral territory from being used by either belligerent as a vantage ground from which he may sally forth to commit hostilities upon the other belligerent, yet the right of citizens of the neutral country to sell all that their industry produces for purposes of war, as fair matter of trade, to any belligerent, cannot be interfered with; that it is no offense and no violation of neutrality to sell a vessel of war, armed or not armed, in our ports, to a belligerent power; and that there is the same right, under the law of nations, to sell in our ports an armed vessel, under such circumstances, that there is to sell guns or 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 used 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.

A strong military force was also sent to the frontier, and the President delivered a message to Congress recommending the enactment of some special measure to meet the occasion. In the meanwhile, an expedition was openly organized at Detroit. This expedition seized the arsenal, and the steamboats and ships lying off the Detroit wharves, and succeeded in getting off to Canada without hinderance. A military 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.British and Foreign State Papers, vol. xxv, page —.Correspondence with Mr. Fox, her Majesty’s minister at Washington.Mr. Fox, No. 5, January 29, 1838.

This act, which was limited to two years, provided for the seizure and detention of any vessel, vehicle, or arms or munitions of war “provided or prepared for any military expedition or enterprise against the territory or dominions of any foreign prince or state, or of any colony, district, or people, conterminous with the United States.”Mr. Fox, No. 7, February 5, 1838.United States Statutes at Largo, vol. v, page 212.

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 July 5, 1814,” contains the following article:British and Foreign 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:

“The statute of the third of James I, chapter four, made it felony for any person whatever to go out of the realm to serve any foreign 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.”Phillimore’s International Law, vol. iii, ed. 1857, page 212.

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 now under consideration) committed on the part of subjects of the United States of America. What was the conduct of that nation in 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.”Cobbett’s Parliamentary Debates, vol. xi, page 1103.

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 Althorp moved for the repeal of the act. Mr. Canning, in reply, entered into the question of the neutrality of England, and pointed out that, far from being aimed exclusively at South America, this act was in 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.”Cobbett’s “Parliamentary Debates,” New Series, vol. viii, page 1019.

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 Saldanha, sailed from Plymouth, ostensibly for Brazil, but in reality, as 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.Phillimore, vol. iii, page 229.

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 act. This enabled the Spanish Legion, under Sir De Lacy Evans, to be 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.Phillimore, vol. iii, pages 218 and 219.

In 1846 certain British merchants complained that an expedition was being prepared to sail under General Florez against Ecuador. Their representation was supported by several of the South American ministers. It appeared that three vessels, the Glenelg, Monarch, and Neptune, were ready to set sail with a large number of emigrants, or, as it was said, troops on board, and that men had been openly enlisted for General Florez’s service. The vessels were seized and condemned.*Correspondence with home office and treasury, October and November, 1846.

In 1847 the Portuguese minister complained that the Black Cat was being fitted out to proceed with volunteers for the Portuguese rebel service. The vessel was seized, but released.Correspondence with Baron Moncorvo, April and May, 1847.

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.

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. Adams, during the civil war, see the memorandum annexed to Lord Russell’s letter to Mr. Adams of November 3, 1865, (Parl. paper, North America, No. 1, 1866, p. 139.)