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in which the District Courts, for lack of evidence or other reasons, might be unable to issue a process against the vessels or their owners. Only as thus interpreted can Sec. 5288 be reconciled with Sec. 5287 which, as it has been shown, contemplated action on the part of the President merely as auxiliary to judicial procedure against persons violating the law.

The rules of international law with respect to the asylum which Changes in the may be granted by neutral states to belligerent vessels of war have been law as to asylum. greatly modified during the one hundred and nineteen years since the passage of the original Neutrality Act. They first received greater precision as a result of the controversies between the United States and Great Britain growing out of the Civil War. The proclamation of neutrality issued by President Grant in 18701 on the outbreak of the Franco-Prussian war states the law as understood by the United States at that time. At the present day the Convention relating to the Rights and Duties of Neutral Powers in Maritime War, adopted by the Second Hague Peace Conference in 1907, embodies the rules of international law on that subject. It will be more convenient, however, to discuss in a later chapter2 the new duties devolving upon the President as a consequence of this convention.

With respect to the obligation of the United States under "treaties," Obligation unit is clear that Sec. 5288 was framed in view of the Treaty of Amity der "treaties."

and Commerce concluded between the United States and France in

1778. Art. XVII of the treaty provided that no shelter or refuge should be given in the ports of the United States to vessels which had made prize of the subjects, people, or property of either of the parties; Art. XXII provided that foreign privateers, holding commissions from any prince or state at enmity with either of the contracting parties should be denied any privilege in the ports of either of the parties, except the concession of purchasing such provisions as should be necessary to carry them to the next port of the state from which they had commissions. The Treaty of 1778 was abrogated by an act of Congress approved July 7, 1798, so that after that date the reference in Sec. 5288 to "treaties" ceased to have any application.

It will be observed that Sec. 5288 leaves it to the discretion of the Discretionary President to decide when a proper case shall have arisen calling for power of

1 Richardson's Messages, VII, 89. 2See below, pp. 150-152.

The operation of this article might perhaps have been limited on one point by Art. XVIII of the Treaty of 1785 between the United States and Prussia, and by Art. XVII of the Treaty of 1782 between the United States and the Netherlands.

President.

Sec. 10 of Act of
April 20, 1818.

Guarantee relates

the action contemplated by the statute. Inasmuch as the statute is not penal in character, there was no need of defining more exactly the circumstances under which foreign vessels were to be refused asylum. Moreover, since the conduct of foreign relations is intrusted to the executive department of the United States government, it was proper that in questions relating to the obligation of treaties and to the interpretation of the rules of international law the President should be left free to decide upon the proper action to be taken.

Armed Vessels to Give Bond on Clearance.

Sec. 5289. The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the 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.

This section, as was pointed out in Chapter II, first appeared as Sec. 2 of the Act of March 3, 1817, and was reenacted as Sec. 10 of the Act of April 20, 1818. The general purpose of its enactment has been explained above1 as being a response to the demand that the laws providing for the punishment of offenses already committed be supplemented by other measures of a preventive character. Owing to the fact that it was customary at the period of the passage of the Act of 1817 for vessels engaged in trade with distant foreign ports to carry a certain amount of armament for self-protection against pirates, the circumstance of a vessel leaving port armed was not in itself conclusive evidence that the vessel was to be used in the service of a belligerent.

It will be observed that one of the conditions of requiring bond is to acts of owners that the vessel must be owned "wholly or in part" by citizens of the only. United States. Foreign owned vessels are consequently not affected by the statute. Moreover, there is a still further limitation upon the scope of the statute in the fact that the bond merely guarantees that the vessel will not be employed by the owners themselves to commit hostilities against a friendly state. Both these restrictions clearly indicate, apart from the historical evidence to the same effect, that the object of Sec. 5289 was to prevent privateering on the part of citizens of the United States.

1See p. 36.

release.

It is evident that it was not the intention of this section that an Giving bond does armed vessel might, by giving bond, be thereby entitled to clearance. not entitle to Such an interpretation would clearly defeat the purpose of Secs. 5283 and 5285. It would make it possible for a vessel, which had been armed with intent to commit hostilities against a friendly state, to be bonded by the very persons who were engaged in fitting it out for an unlawful purpose, in cases where the actual money cost of the expedition might be of little consideration to the persons engaged in it. In the case of the Mary N. Hogan,' where the owner offered bond for the release of a vessel seized for forfeiture under Sec. 5283, the court said: "It is clearly not the intention of Sec. 5283, in imposing a forfeiture, to accept the value of the vessel as the price of a hostile expedition against a friendly power, which might entail a hundred fold greater liabilities on the part of the government. No unnecessary interpretation of the rules should be adopted which would permit that result; and yet such might be the result, and even the expected result, of a release of the vessel on bond. The plain intent of Sec. 5283 is effectually to prevent any such expedition altogether, through the seizure and forfeiture of the vessel herself." This decision is quoted with approval in the case of the Three Friends," in which the court explained that Secs. 938-941 of the Revised Statutes, providing for the release upon bond of vessels seized for violation of the revenue laws, etc., did not apply to cases of seizure for forfeiture under any law of the United States, which cases are distinctly excepted from the provisions of Sec. 941.

Detention by Collectors of Customs.

Sec. 5290. The several collectors of the customs shall detain Sec. 11 of Act of any vessel manifestly built for warlike purposes, and about to April 20, 1818. 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 gives such bond and security as is required of the owners of armed vessels by the preceding section.

Like the preceding section, this section passed from the temporary Act of 1817 into the permanent Act of 1818. It supplements Sec. 5289

117 Fed. Rep., 813.

2166 U. S., 1.

Comprehensiveness of terms.

Conditions required for detention.

by conferring a discretionary power upon the collectors of customs enabling them to detain vessels in cases indicating a probable intention on the part of the owner of the vessel to commit hostilities against a friendly state. It will be noted that the description of the character of the vessel which may be detained is not an "armed vessel" as in Sec. 5289, but one "manifestly built for warlike purposes." The debates in the House of Representatives preceding the adoption of the Act of 1817 show that the two terms were not meant to be synonymous, and that the intention of the framers of the Act was to prevent vessels from leaving port which, though without any appearance of armament upon their decks, might have such complete equipment for war that as soon as they were on the high seas they could be converted into privateers. Accordingly, unarmed vessels which would escape the requirement of giving bond under the terms of Sec. 5289 might, under the circumstances defined, be subject to detention under Sec. 5290.

Two conditions are imposed before a vessel manifestly built for warlike purposes can be detained, namely, that the cargo of the vessel shall consist principally of arms and munitions of war, and that the number of men shipped on board or other circumstances shall render it probable that the vessel is to be used for an unlawful purpose. The detention of the vessel must, therefore, be justified by evidence of the probable unlawful intent,-a point which the law leaves it to the discretion of the collectors of customs to determine. In the case of Hendricks v. Gonzalez,2 the court held that it is not sufficient to justify a collector of customs in refusing clearance to a vessel under Sec. 5290 because it is the purpose of her intended voyage to transport arms and munitions of war for the use of an insurrectionary party in a country with which the United States are at peace; the transportation of arms, etc., from a neutral port to a belligerent country not being a violation of the duties of a neutral state, although such contraband merchandise is subject to the penalty of a confiscation by the other belligerent. When the circumstances do not justify detention of the vessel, the owners may bring suit for damages against the collector of customs, even though the latter is acting under specific instructions from the Secretary of the Treasury.

The detention of the vessel is to remain in force until the decision of the President is had thereon, or until the owner gives bond and security as is required of the owners of armed vessels by Sec. 5289. With respect to the last clause the same observation holds good that

1Annals of Congress, 14th Cong., 2d Sess., 723.

267 Fed. Rep., 351.

was made in regard to Sec. 5289, namely, that the mere giving of bond will not constitute a claim for release. Once the probable intent with which the vessel is to be used has justified its seizure, the burden of proof may properly be upon the owners to show that the vessel is not to be used for an unlawful purpose.

Construction of This Title.

Sec. 5291. The provisions of this Title shall not be construed to extend to any subject or citizen of any foreign prince, state, colony, district, or people who is transiently within the United States, and [enlist] [enlists] or enters himself on board of any vessel of war, letter of marque, or privateer, which at the time of its arrival within the United States was fitted and equipped as such, or hires or retains another subject or citizen of the same foreign prince, state, colony, district, or people, who is transiently within the United States, to enlist or enter himself to serve such foreign prince, state, colony, district, or people, on board such vessel of war, letter of marque, or privateer, if the United States shall then be at peace with such foreign prince, state, colony, district, or people. Nor shall they be construed to prevent the prosecution or punishment of treason, or of any piracy defined by the laws of the United States.

This section, with the exception of the last sentence, figured in Origin of slightly altered terms as a proviso appended to Sec. 2 of both the section. original Act of 1794 and the Act of 1818. Although its position as a separate section in the Revised Statutes would seem to indicate that it applies to the preceding sections as a body, it is actually applicable only to Sec. 5282. It was not thought by the framers of the Acts of 1794 and 1818 that the neutral obligations of the United States extended to the prevention of enlistments in the service of a foreign state, when the persons so enlisting owed allegience to the foreign state as its subjects. In the Instructions to the Collectors of Customs, issued by Hamilton on August 4, 1793,1 it is distinctly stated that "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 therein their own subjects or citizens." The reasons for believing that this exception with regard to the illegality of foreign enlistments in the United States is no longer a justifiable one will be explained in a later chapter.2

The last sentence of Sec. 5291 figured as Sec. 9 of the Act of 1794. 1See App., p. 170.

2See below, pp. 156-157.

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