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tary stores permitted by our laws, and which the law of nations does not require the United States to prohibit."
President Madison, message of Dec. 26, 1816, Richardson's Messages, I. 582.
"Having communicated to you, verbally, the information asked for by yourdetter of the 1st instant, except so far as relates to the last inquiry it contains, I have now the honor to state, 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
"First. 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.
Second. To invest the collectors, or other revenue officers where there are no collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law: the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained. The statute book contains analogous powers to this above suggested. (See particularly the eleventh 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 offence. They rest upon the general footing of punishing the offence merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after the trial, to the penalty denounced."
Mr. Monroe, Sec. of State, to Mr. Forsyth, Jan. 6, 1817, 4 Am. State
"In addition to the letter which I wrote to you on the 6th, in reply to the one which you wrote to me on the 1st instant, I have the honor to state, that information has been received at this Department, from various sources, that vessels have been armed and equipped in our ports for the purpose of cruising against the commerce of nations in amity with the United States, and no doubt is entertained that this information was in some instances correct. The owners of these vessels have, however, generally taken care so to conceal these armaments and equipments, and the object of them, as to render it extremely difficult, under existing circumstances, to prevent or punish this infraction of the law. It has been represented—
"First. That vessels belonging to citizens of the United States, or
foreigners, have been armed and equipped in our ports, and have cleared out from our custom-houses, as merchant vessels; and, after touching at other ports, have hoisted the flag of some of the belligerents, and cruised under it against the commerce of nations in amity with the United States.
"Secondly. That in other instances, other vessels, armed and equipped in our ports, have hoisted such flags after clearing out and getting to sea, and have, in like manner, cruised against the commerce of nations in amity with the United States, extending their depredations, in a few cases, to the property of citizens of the United States. "Thirdly. That in other instances, foreign vessels have entered the ports of the United States, and, availing themselves of the privileges allowed by our laws, have, in various modes, augmented their armaments, with pretended commercial views; have taken on board citizens of the United States, as passengers, who, on their arrival at neutral ports, have assumed the character of officers and soldiers in the service of some of the parties in the contest now prevailing in our southern hemisphere.
"Information, founded upon these representations, has from time to time been given to the attorneys and collectors of the respective districts in which the armaments are stated to have been made; but, from the difficulty of obtaining the necessary evidence to establish facts on which the law would operate, few prosecutions have been instituted.
"In reply to your second inquiry, I beg leave to refer to the communication from the Secretary of the Treasury to the Committee of Ways and Means, during the last session of Congress, in the case of the American Eagle, and to the papers enclosed herewith."
Mr. Monroe, Sec. of State, to Mr. Forsyth, Jan. 10, 1817, 4 Am. State
The foregoing recommendations of President Madison and Mr. Monroe for the adoption of further legislation for the enforcement of the neutrality of the United States were immediately due to representations of the Portuguese minister at Washington, that privateers were fitted out in American ports and sailed thence under colors of the revolted Portuguese colonies; that these vessels were often officered and manned by Americans, and that after cruising they returned to American ports and were refitted. He acquitted the Government of any want of disposition to punish the offenders, but suggested that the difficulty lay in the want of preventive remedies in the act of 1794. As the result of the efforts of the administration there was passed the act of March 3, 1817, 3 Stat. 370. But this act, together with all prior legislation on the subject, was repealed and superseded by the comprehensive statute of April 20, 1818, 3 Stat. 447, the provi
sions of which are now embodied in the Revised Statutes, secs. 52815291. An act similar in its prohibitions, though less effective in its administrative powers, was passed by the British Parliament in the following year.
Dana's Wheaton, sec. 440, note, 541; A Hundred Years of American Diplomacy, by J. B. Moore, proceedings of the American Bar Association, 1900.
"In the existing unfortunate civil war between Spain and the South American provinces, the United States have constantly avowed and faithfully maintained an impartial neutrality. No violation of that neutrality, by any citizen of the United States, has ever received sanction or countenance from this Government. Whenever the laws, previously enacted for the preservation of neutrality, have been found, by experience, in any manner defective, they have been strengthened by new provisions and severe penalties. Spanish property, illegally captured, has been constantly restored by the decisions of the tribunals of the United States; nor has the life itself been spared of individuals guilty of piracy, committed upon Spanish property on the high seas."
Mr. Adams, Sec. of State, to Mr. Vives, May 3, 1820, MS. Notes to For.
"The Government of the United States may almost be said to have originated the modern doctrine of the obligations of neutrals to maintain their neutrality. They were the first to make that international obligation the subject of a municipal law. They have been loyal to that doctrine throughout their history. They have suffered because other powers have been less loyal to it than themselves, and they have continued to maintain it throughout the present disturbances in the islands of the West Indies. If there was any neglect to properly scrutinize the character of these vessels in the United States, which I do not admit, it was due in the one case to the neglect of the minister of Hayti and in the other case to the neglect of the Haytian consul."
Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, No. 16, Oct. 13, 1869, MS. Inst. Hayti, I. 158.
This instruction related to the departure from the United States of the vessels Quaker City and Florida. The Quaker City was originally seized on the representations of the Spanish minister, but was afterwards discharged for want of evidence to justify her detention. Subsequently the British minister represented that she had been sold to British subjects for a voyage to Jamaica, for which place she was cleared. About the same time legal proceedings were begun in New York, at the instance of representatives of the Haytian Government, to detain her as a cruiser intended to operate against that Government, but after consideration of the matter she was permitted to
depart upon giving the usual bond required by the statute. She left the United States unarmed and in fact went to Jamaica, and any hostile character which she assumed was taken on after her arrival there. The Florida was for some time under scrutiny in Philadelphia, but as no evidence against her was discovered she was permitted to sail for Boston, and there took in a cargo for Jamaica, apparently with the knowledge of the Haytian consul at that port, as well as of the Haytian minister. After her clearance the latter asked that she be detained, but she was then on the high seas. She sailed without armament. Both vessels seem to have been converted into vessels of war in Haytian waters. (Ibid.)
"The public measures designed to maintain unimpaired the domestic sovereignty and the international neutrality of the United States were independent of this policy [of avoiding entangling alliances], though apparently incidental to it. The municipal laws enacted by Congress then [in Washington's Administration] and since have been but declarations of the law of nations. They are essential to the preservation of our national dignity and honor; they have for their object to repress and punish all enterprises of private war, one of the last relics of mediæval barbarism; and they have descended to us from the fathers of the Republic, supported and enforced by every succeeding President of the United States.”
Report of Mr. Fish, Sec. of State, to the President. July 14, 1870, S. Ex.
As to attempts made in 1866 to repeal the inhibitions of the neutrality
Referring to "alleged defects in the municipal law" of Great Britain for the enforcement of neutrality during the civil war in the United States, and to the failure then to remedy those defects by appropriate legislation, Mr. Fish said:
"We hold that the international duty of the Queen's Government in this respect was above and independent of the municipal laws of England. It was a sovereign duty, attaching to Great Britain as a sovereign power. The municipal law was but a means of repressing or punishing individual wrongdoers; the law of nations was the true and proper rule of duty for the Government. If the municipal laws were defective, that was a domestic inconvenience, of concern only to the local government, and for it to remedy or not by suitable legislation as it pleased. But no sovereign power can rightfully plead the defects of its own domestic penal statutes as justification or extenuation of an international wrong to another sovereign power."
H. Doc. 551-vol 7-65
Mr. Fish, Sec. of State, to Mr. Motley, min. to England, No. 70, Sept. 25, 1869, For. Rel. 1873, III. 329, 332; MS. Inst. Great Britain, XXII. 50, 63.
See Moore, Int. Arbitrations, I. 520.
"But though it is an entire mistake to say that the American act of 1818 was in any respect superior to the British act of the ensuing year, it is true that, since the time the American act was passed, the working of the legal administration in the United States has become, for the purpose of proceeding against a suspected vessel, in one respect better than that of Great Britain. It appears that in each district of the United States there is a resident legal officer of the Federal Government, called the district attorney, to whom, if the action of the Government is invoked, a question of this kind is referred, and whose duty it is to ascertain the facts, collect the evidence, and report to the Government. Such an officer is, no doubt, better adapted to such a purpose than a collector of customs. But can it be said to have been the duty of the British Government, not having similar district officers, to appoint such, at the different shipbuilding ports, with a view the better to protect belligerents against ships being equipped or armed against them?
"Another advantage of the American system is, that the duty of adjudicating in such a case devolves on a judge in the court of admiralty instead of on a jury, who are sometimes apt to be swayed in favor of their own countrymen when sued at the instance of foreigners. But this relates to the condemnation of vessels, not to their seizure. And with the exception of the Florida and Alabama, every vessel the seizure of which could be asked for as instanced in the cases of the Alexandra, the Pampero, and the iron-clad rams at Birkenhead, was seized and prevented from doing any harm to the commerce of the United States. The Alexandra, it is true, was released after trial in England, but she was seized again at Nassau, and not liberated till after the close of the war. Practically speaking, therefore, in the later cases, everything was accomplished which could have resulted from the most perfect machinery that could have been devised for such a purpose."
Sir A. Cockburn, opinion in Geneva Tribunal of 1872, Papers relating to the Treaty of Washington, IV. 274.
In the same opinion (id. 301), the various “ filibustering" expeditions which were started in the United States are reviewed with great zest.
"Mr. Baron Channell, in the case of the Alexandra, said: "The foreign enlistment act, particularly the seventh section, is very imperfectly worded. There is no doubt that it was in a great measure, but with what appeared to me very important variations, penned from an act of the United States, passed in Congress, in 1792, and re