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.

Curtis, vol. v, page 374.

February, 1823.-La Nereyda.

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 Venezuelan government, changed her name to the El Congresso de Venezuela, and sailed back in her to the United States, where she was eventually libeled 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.

Curtis, vol. x, page 189.

United States vs. Quincy, January, 1832.

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 [29] 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 afterward 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 defendent 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.

The Spanish and Portuguese claims arising out of the system of privateering pursued by American citizens under the flags of the revolted colonies have Parliamentary P. recently been so fully discussed in the communications between Lord rers, North America, Russell and Adams, respecting the Alabama and Shenandoah cases, that No. 1, 1861, &c. a short account of the correspondence will probably be sufficient for the purposes of the present memorandum.

The treaty between Spain and the United States of America of the 27th of October, 1795, contained the following stipulation:

"ARTICLE XIV. No subject of His Catholic Majesty shall apply for or take any 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 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 be 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

American State Papers, vol. iv, page 423

P

British State pers, vol. iii, page 109.

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 be 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.)

Mr. Monroe replied:

With regard to your third demand, the exclusion of the flag of the revolting prov

American State Pa

pers, vol iv, page 426.

[30] ing his

British State Pa

pers, vol. iii, page 119.

66

inces, 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 bearappropriate flag, the President thought it proper, some time past, to give orders to the collectors not to make the flag of any vessel a criteFion or condition of its admission into the ports of the United States." And he added:

'What will be 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.)

On the 10th of June, 1816, Mr. Monroe forwarded to the Chevalier de Onis a copy of a report from M. Dick, attorney of the United States for the district of pers, vol. 1, page 431. Louisiana, dated March 1, 1816, denying the Chevalier's allegations of the open enlistment of men and equipment of expeditions to serve

American State Pa

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.

"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 afterward 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.

pers, vol. 1, page 365.

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 24 of January, 1817, he addressed a further 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 plunBritish State Pa- der made by these privateers on the Spanish trade, for the purpose of distributing it among those merchants who have no scruple in engag ing 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 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.

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

In January, February, and March M. de Onis sent in twelve other notes in the same strain, and on the 28th of March the Acting Secretary of State informed British State Pa him that inquiry would be made, and "adequate redress and punish- pers. vol. 1, pages ment enforced should it appear that the laws have been infringed by any of the acts complained of."

268-379.

State Papers, vol., pages 350-397.

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. 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 en- Ibid, page 398 tertain discussions of the kind invited by" his late notes.

says:

American State Pa pers, vol. iv, page 199.

M. de Onis continued his representations in eight more notes, in one of which, addressed to Mr. John Quincy Adams, dated the 2d of November, 1817, he Ibid, pages 398-415, "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 in Phila[31] delphia under General *Lallemand, and which was supposed to be intended to operate against Mexico, stated to Mr. Adams:

British State Ppers, vol. vi, page 225.

"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.)

British State Pipers, 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 ether 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 in

terest.

M. de Quis 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.

M. de Onis to Mr.

*

*

*

"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 basis 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 afterward 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.)

Adams, October 24, 1918, State Papers,

vol. v, p. 265.

Ibid, pages 267-277.

British State Papers, vol. vi, p. 281.

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.)

To this the Spanish minister rejoined:

pers, vol. vi, p. 285.

"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 British State Pa- 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 spoilations 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.

The Secretary of State in reply expressed the readiness of his Government to con