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"It seems obvious that the Executive branch of Government would not be justified in ordering judicial process where the judicial officer did not find legal ground for a prosecution."
Mr. Pickering, Sec. of State, to Mr. Bond, Brit. chargé d'affaires, Sept. 30, 1795, 8 MS. Dom. Let. 413.
To an action of trespass for the seizure of a ship under the neutrality act of 1794, defendant pleaded that the vessel was attempted to be fitted out and armed to carry on hostilities against a foreign state with which the United States were at peace. It was objected that the plea did not specify the state against which the ship was intended to be employed. The court, Story, J., delivering the opinion, said: “As the allegation follows the words of the statute, it has sufficient certainty for a libel or information in rem for the asserted forfeiture under the statute, and, consequently, it has sufficient certainty for a plea. Indeed, there is as much certainty as there would have been, if it had been averred that it was in the service of, or against, some foreign state unknown to the libellant, which has been adjudged in this court, to be sufficient in an information of forfeiture. (Locke . The United States, 7 Cranch, 339.)"
Gelston v. Hoyt (1818), 3 Wheat. 246, 330.
The Secretary of State can not with propriety draw the line or define the boundary between neutral and unneutral acts. The interpretation and exposition of the laws belong peculiarly to the judiciary, and a stranger who desires information concerning them should consult private counsel.
Mr. Adams, Sec. of State, to Mr. Aguirre, Aug. 27, 1818, MS. Notes to
The test of the violation of the laws of the United States against interference with foreign governments is the commission of an
Cushing, At. Gen., 1855, 8 Op. 472.
While objecting to a continuance granted by the presiding judge in the trial of the case of Rumble, tried and acquitted in England in 1865 for breach of neutrality laws, "this Government acknowledges that it does not otherwise find any sufficient ground for questioning the learning or the impartiality of the presiding judge in the conduct of the trial."
Mr. Seward, Sec. of State, to Mr. Adams, min. to England, March 21, 1865,
Rumble was indicted and tried for violation of the British neutrality
"You appear to impugn the sufficiency of the existing modes of procedure in the United States with reference to infractions of law, as, for instance, when you advert to the apprehended results of trial by a jury of the vicinage where the offense may have been committed, and assume that the prevalence of popular sympathy with the accused would almost certainly' result in acquittal.
"You say that you deplore as almost incomprehensible this laxity in defending a friendly nation from the attacks of any conspirators, and this singular idea of calling "neutrality " this lack of discrimination between a legitimate and civilized government, which is regarded as friendly and an outlaw who seeks to make war upon that Government by means of robbery, plunder, and incendiarism. One would think that there was no room for neutrality in such a case, and that none was possible between two parties whose characters are so entirely distinct.'
"This Government administers its own law in the case; it does not assume to visit with penalty conduct which, if committed within a foreign jurisdiction, might be punishable therein. To do otherwise would be, in effect, to attempt to recognize and administer within the sovereignty of the United States a domestic law of another sovereign. As I intimated in my note to you of May 28 last, proceedings under the 'neutrality laws' of the United States are set in motion by due information made under oath by some person cognizant of the facts alleged or possessing belief sufficient to that end,' but they are so set in motion in the name, and by the power, and through the officers, of the Government of the United States. Prosecutions against any who are alleged to have contravened those laws are not by suit inter partes, but in the name and behalf of the Government of the United States against the accused. The foreign government against whose peace the alleged hostile act may be directed is not a plaintiff in the action, as you seem to suggest. The Government of the United States is the plaintiff.
"The injury complained of is not to the foreign government, but to the peace and good order and laws of the Government of the United States. And the Executive can no more punish or repress offenses of this nature without the judicial ascertainment of the fact that an unlawful act has been committed than it could by administrative mandate award death on a charge of murder. Neither in the one case nor in the other could the representations of parties claiming to be aggrieved override the indispensable requisite of a judicial proceeding. The fact that the imputed act of wrong doing may, in its result, affect the peace of another state, does not supersede the law applicable to the case, and recourse to that law can not 'imply the uselessness of a diplomatic representative." "
Mr. Bayard, Sec. of State, to Mr. Valera, Span. min., July 31, 1885, For.
See, in a similar sense, Mr. Bayard, Sec. of State, to Mr. Garland, At.
"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.
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 II. Doc. 551-vol 7—66