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Mr. Bayard, Sec. of State, to Mr. Valera, Span. min., July 31, 1885, For.
Rel. 1885, 776.

See, in a similar sense, Mr. Bayard, Sec. of State, to Mr. Garland, At.
Gen., Aug. 3, 1885, 156 MS. Dom. Let. 446.

"It is certain, however, that the Executive has no right to interfere with or control the action of the judiciary in proceedings against persons charged with being concerned in hostile expeditions against friendly nations. The President may employ the military and naval forces to disperse or prevent the departure from our territory of any such expedition, or of any men, arms, or munitions which are manifestly parts thereof; and, being a coordinate authority, he would not be precluded from so doing, in a proper case, by the action of the judiciary. But it is plain that such means are practicable only when there is open defiance of the authority of the Government by an organized body of men.

"Occasions may be imagined when the summary process of martial law might perhaps be resorted to against the persons composing such a body. But in all such cases as those which have come to the notice of the Government these conditions do not exist, and the judicial authority is the only one which can be properly or efficiently invoked. (See Mr. Bayard to the Spanish minister, 3 Whart. Dig. Int. Law. p. 625.) Our Government possesses all the attributes of sovereignty with respect to the present subject, and has for their exercise the appropriate agencies which are recognized among civilized nations; but our Constitution forbids the arbitrary exercise of power when the liberty or property of individual citizens is involved. It cannot therefore resort to some measures which are still possible in some countries. But I do not think that it can be held chargeable with lack of diligence for not taking steps which would be inconsistent with the principles on which all republics are founded."

Harmon, At. Gen., Dec. 10, 1895, 21 Op. 267, 273.

A consul of a foreign government, who is the only representative present of his government, has the right to intervene and claim a vessel belonging to such government against which a libel has been filed to secure her forfeiture for violation of the neutrality laws.

The Conserva, 38 Fed. Rep. 431.

A proceeding under section 5283, Revised Statutes, is a simple suit in admiralty, where the decree will be simply that the libel will be dismissed or the vessel condemned; and no decree of restitution is necessary.

The Conserva, 38 Fed. Rep. 431.

5. ARREST AND DETENTION.

§ 1323.

A vessel under arrest, to prevent her from cruising against belligerent powers, may be discharged on the order of the President communicated to the marshal having her in custody.

Bradford, At. Gen., 1794, 1 Op. 48.

In an action of trespass for damages for the wrongful seizure of a vessel under the neutrality laws, the defendant, a collector of customs, who had employed only civil means, sought to justify the seizure on the strength of section 7 of the act of 1794, by alleging an order of the President of the United States, and arguing that as the President had authority by section 7 to employ the military and naval forces for the purpose of executing the neutrality laws, he might a fortiori employ a civil officer or force for that purpose, and that his order to that effect was a sufficient justification of the seizure. Story, J., delivering the opinion of the court, said:

"But upon the most deliberate consideration, we are of a different opinion. The power thus entrusted to the President is of a very high and delicate nature, and manifestly intended to be exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot be effectuated. It is to be exerted on extraordinary occasions, and subject to that high responsibility which all executive acts necessarily involve. Whenever it is exerted, all persons who act in obedience to the executive instructions, in cases within the act, are completely justified in taking possession of, and detaining, the offending vessel, and are not responsible in damages, for any injury which the party may suffer by reason of such proceeding. Surely it never could have been the intention of Congress, that such a power should be allowed as a shield to the seizing officer, in cases where that seizure might be made by the ordinary civil means? One of these cases put in the section is, where any process of the courts of the United States is disobeyed and resisted; and this case abundantly shows, that the authority of the President was not intended to be called into exercise, unless where military or naval force were necessary to ensure the execution of the laws. In terms the section is confined to the employment of military and naval forces; and there is neither public policy nor principle to justify an extension of the prerogative, beyond the terms in which it is given. Congress might be perfectly willing to entrust the President with the power to take and detain, whenever, in his opinion, the case was so flagrant that military or naval force were necessary to enforce the laws, and yet with great propriety deny it, where, from the circumstances

of the case, the civil officers of the Government might, upon their private responsibility, without any danger to the public peace, completely execute them. It is certainly against the general theory of our institutions to create great discretionary powers by implication, and in the present instance we see nothing to justify it."

Gelston v. Hoyt (1818), 3 Wheat. 246, 331.

Every neutral nation has a right to exact by force, if need be, that belligerent powers shall not make use of its territory for the purposes of their war.

Cushing, At. Gen., 1855, 7 Op. 122.

When an officer belonging to a military force ordered out by the President, under the neutrality act of March 10, 1838, section 8 (5 Stat. 214), "to prevent the violation, and to enforce the due execution" of the act, and instructed by his commanding general to execute that purpose, seized property, as a precautionary means to prevent an intended violation of the act, with a view of detaining it until an officer having the power to seize and hold it for the purpose of proceeding with it in the manner directed by the statute could be procured and act in the matter, it was held that the seizure was lawful.

Stoughton . Dimick, 3 Blatch. 356; 29 Vt. 535.

In November, 1864, the steamer Colon was seized at San Francisco on suspicion of an intended violation of the neutrality laws. The papers showed that the vessel was purchased for $32,000 by General P. Herran, of Colombia, to be equipped for war purposes and sent to Callao to be transferred to the Peruvian Government. General Herran acted ostensibly as a commissioner of Peru, although the Peruvian minister at Washington was not advised of his employment. Mr. Seward asked that the vessel be detained till the President should otherwise direct. "The relations existing between Spain and Peru at this time," said Mr. Seward, "not being of the most amicable nature, it is incumbent upon the United States to guard against any causes of dissatisfaction on the part of either of those governments which might arise from a departure from our just neutrality towards them." As the survey of the vessel made at San Francisco indicated that she was well adapted to the revenue service but was not strong enough for a man-of-war, Mr. Seward at the same time suggested that the Treasury Department purchase her for the former purpose.

Ten days later Mr. Seward stated that as the vessel was purchased, armed, and equipped "evidently with a view to the prosecution of hostilities, and in contravention of the Executive order of November H. Doc. 551-vol 7—66

21, 1862, prohibiting the exportation of warlike materials from the ports of the United States," she would be detained till ordered by the President to be released.

On March 23, 1865, Mr. Seward stated that orders had been issued by the Department of State" to the Secretaries of War and Treasury, for the release of the steamer Colon, purchased by General P. A. Herran for the Peruvian Government," and that orders to that effect had been telegraphed by the War Department to the general commanding the Department of the Pacific.

Mr. Seward, Sec. of State, to Mr. Fessenden, Sec. of Treasury, Dec. 9, 1864, 67 MS. Dom. Let. 272; Mr. Seward, Sec. of State, to Señor Don Carlos Tracy, Dec. 19, 1864, MS. Notes to Peruvian Leg. I. 288; Mr. Seward, Sec. of State, to Señor Don Emilio Bonifaz, March 15, 1865, id. 291; same to same, March 23, 1865, id. 292.

Persons and vessels arrested under order of the President for breach of neutrality may be detained by the naval forces of the United States, under his directions, until lawfully discharged.

Mr. Fish, Sec. of State, to Mr. Edwards Pierrepont, U. S. dist. atty. at
New York, June 29, 1869, 81 MS. Dom. Let. 325.

In July, 1869, the President issued to the district attorney and marshal for the southern district of New York a commission empowering them, or either of them, "to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purposes indicated in the eighth section of the act of April 20, 1818, commonly known as the neutrality act.""

Mr. Fish, Sec. of State, to Mr. Pierrepont, July 13, 1869, 81 MS. Dom.
Let. 385.

Orders were at the same time given for the capture of all concerned in
expeditions violating such law. (Ibid.)

See also Mr. Fish's letter to Mr. Pierrepont, of July 15, 1869; Mr. Fish to
Mr. Barlow, July 17, 1869; Mr. Fish to Mr. Robeson, Aug. 10, 1869;
Mr. Fish to Mr. Barlow, Aug. 10, 1869, as to custody of gunboats
seized under above order: 81 MS. Dom. Let. 399, 411, 516, 517.
As to the subsequent destiny of these gunboats, see Mr. Fish to Mr. Pierre-
pont, Nov. 26, 1869, 82 MS. Dom. Let. 385.

The proper authorities in New York will be instructed to detain gunboats preparing to issue from that port, in violation of neutrality in the contest between Peru and Spain.

Mr. Fish, Sec. of State, to Mr. Freyre, Aug. 10, 1869, MS. Notes to Peru,
I. 373.

As to withdrawal of this order on peace between Peru and Spain, see
same to same, Dec. 8, 1869, id. 385.

In the case of certain Spanish gunboats which were detained under legal process at New York at the instance of the Peruvian minister,

on the ground that a state of war existed between Peru and Spain and that they were intended to operate against Peru, the Spanish minister at Washington desired the Department of State to inform the Peruvian minister that the vessels were not intended to operate against Peru or to relieve other vessels of the Spanish navy in Cuban waters for use against Peru, and that it was the desire of the Spanish Goyernment to cultivate the most friendly relations with all the Spanish· American republics and to discard any unfriendly policy towards them. Mr. Fish communicated these assurances to the Peruvian minister, at the same time referring to a declaration made by the latter to Mr. Seward on May 8, 1868, that a formal state of war no longer existed between the allied republics and Spain, "but on the contrary a condition of imperfect peace." The Peruvian minister, accepting these assurances, withdrew any objection to the departure of the vessels; and the Government of the United States announced that it could no longer hesitate to adopt " the conclusion that a state of war does no longer exist between the governments of Spain and Peru," a conclusion which involved the withdrawal of the proceedings against the gunboats.

Mr. Fish, Sec. of State, to Mr. Freyre, Peruvian min., Dec. 3, 1869, MS.
Notes to Peruvian Leg. I. 379; same to same, Dec. 8, 1869, id. 385.
As to a similar declaration made by the representative of Peru to Spain
in 1868, in the case of the monitors Oneota and Catawber, see Mr.
Fish, Sec. of State, to Mr. Freyre, Dec. 8, 1869, MS. Notes to Peru-
vian Leg. I. 385; Mr. Seward, Sec. of State, to Sec. of Treas., May
23, 1868, 78 MS. Dom. Let. 493.

See, also, Mr. Evarts, Sec. of State, to Mr. Shishkin, Feb. 21, 1879, MS.
Notes to Russia, VII. 259.

The President, under the eighth section of the act of April 20, 1818, is not required to arrest in a United States port an unarmed vessel unless it be shown that a military enterprise is begun or set on foot through her contrary to the provisions of the statute.

Mr. Fish, Sec. of State, to Mr. Bernabé, Mar. 23, 1874, MS. Notes to
Spain, IX. 220.

"The several collectors of the customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arms and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon 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, until the decision of the President is had thereon, or until the owner

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