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After argument Judge Peters expressed the opinion that the jurisdiction of the district court was exclusive under the act of Congress. He said that in the case of the United States v. Guinet (2 Dall. 321) he had, upon full consideration, directed the information in rem to enforce the forfeiture of the cannon to be instituted in the district court, but had bound the defendant over to the circuit court to answer personally for his offense. Wilson, Justice, took the same view, holding that the jurisdiction of the district court was exclusive, under the ninth section of the judiciary act, in all suits for penalties and forfeitures incurred under the laws of the United States. The information was therefore dismissed.
Ketland v. The Cassius (1796), 2 Dall. 365.
A vessel was fitted out at Savannah with armament, munitions, and sea stores, and being afterwards found, under another name, with a commission from the Republic of Venezuela to cruise against the subjects of the King of Spain, was seized by the United States authorities for violating the neutrality laws. The captain admitted that the vessel had already made a cruise in the capacity above stated, but applied to the President for her discharge from further prosecution on the ground that she was a legitimate armed vessel, lawfully sailing under the flag of Venezuela. It was advised that the case was one for adjudication in court, and did not call for the extraordinary interference of the Government.
Wirt, At. Gen., 1818, 1 Op. 231.
“As it is probable that by virtue of this act [of March 3, 1819, to protect the commerce of the United States and to punish the crime of piracy] vessels may be taken bearing the flag and pretending to have commissions from Venezuela, Captain Perry will give the most explicit assurances that it is not the intention of the United States to capture or molest any of the cruisers of Venezuela duly commissioned and authorized to wear its flag, but that vessels fitted out, armed and manned within the United States, cruising against nations with which they are at peace, can not be recognized as having a lawful authority. He will explicitly state that the United States consider as illegal all commissions issued in blank and delivered within the United States for vessels fitted out in their ports."
Mr. Adams, Sec. of State, to Mr. Thompson, Sec. of Navy, May 20, 1819, 17 MS. Dom. Let. 304.
A vessel called the Irresistible was fitted out at Baltimore in violation of the neutrality laws, and sent to Buenos Ayres, where she was commissioned as a privateer to cruise against Spain. She afterwards
captured a prize, called the Gran Para, which she brought into the United States, and which was there libeled for restitution. Against this claim it was contended that, as the Irresistible made no prize on her passage from Baltimore to Buenos Ayres, her offense against the neutrality laws was deposited there, so that her subsequent cruise could not in any way be connected with it. As to this contention, Chief Justice Marshall said: "If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations, need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruizers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts, that the arms and ammunition taken on board the Irrestible at Baltimore, were taken for the purpose of being used on a cruize, and that the men there enlisted, though engaged, in form, as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe that there was one."
Gran Para (1822), 7 Wheat. 471, 487.
As to the effect of a commission and the deposit of the offense against the neutrality laws, see, further, Moore, Int. Arbitrations, I. 576, 612; IV. 4082-4097.
A citizen of the United States who has violated its neutrality can. not shelter himself under a commission from a foreign belligerent.
The Bello Corrunes, 6 Wheat. 152.
"It was maintained in the American case that, by the true construction of the second clause of the first rule of the treaty, when a vessel like the Florida, Alabama, Georgia, or Shenandoah, which has been especially adapted within a neutral port for the use of a belligerent in war, comes again within the neutral's jurisdiction, it is the duty of the neutral to seize and detain it. This construction was denied by Great Britain. It was maintained in the British papers submitted to the tribunal, that the obligation created by this clause. refers only to the duty of preventing the original departure of the vessel, and that the fact that the vessel was, after the original departure from the neutral port, commissioned as a ship of war protects it against detention.
"To this point we rejoined that a commission is no protection against seizure in such case, and does not operate to release the neutral from the obligation to detain the offender.
"The Viscount d'Itajubá seemed to favor the American construction. He said:
"According to the latter part of the first rule of Article VI. of the treaty of Washington, the neutral is bound also to use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, [viz., against a belligerent,] such vessel having been specially adapted, in whole or in part, within its jurisdiction to warlike use. If, then, a vessel built on neutral territory for the use of a belligerent, fraudulently and without the knowledge of the neutral, comes again within the jurisdiction of the sovereign whose neutrality it has violated, it ought to be seized and detained.'
"Count Sclopis says, on this point:
"It is on the nature of these special circumstances that the first rule laid down in Article VI. of the treaty of Washington specifically rests. The operation of that rule would be illusory, if it could not be applied to vessels subsequently commissioned. The object in view is to prevent the construction, arming, and equipping of the vessel, and to prevent her departure when there is sufficient reason to believe that she is intended to carry on war on behalf of one of the belligerents; and when probability has become certainty, shall not the rule be applicable to the direct and palpable consequences which it originally was intended to prevent?'
"In the award the tribunal says that
"The effects of a violation of neutrality committed by means of the construction, equipment, and armament of a vessel are not done away with by any commission which the Government of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step by which the offense is completed can not be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. The privilege of exterritoriality, accorded to vessels of war, has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of neutrality.'
"It will be observed that the tribunal, instead of adopting the recognition by the Viscount d'Itajubá of a positive obligation on the part of the neutral to detain the vessel, in the case supposed, limited itself to expressing the opinion that, in such case, the neutral would have the right to make such detention."
Report of Mr. J. C. B. Davis, agent of the United States at Geneva, Sept. 21, 1872, Papers relating to the Treaty of Washington, IV. 10–11.
"The fact that a vessel, built in contravention of the laws of neutrality, escapes and gets out to sea, does not free that vessel from the responsibility she has incurred by her violation of neutrality; she may, therefore, be proceeded against if she returns within the jurisdiction of the injured state. The fact of her having been transferred or commissioned in the meanwhile, does not annul the violation cammitted, unless the transfer or commissioning, as the case may be, was a bona fide transaction."
Opinions of Mr. Stämpfli, Papers relating to the Treaty of Washington,
9. QUESTION OF EXTRATERRITORIAL PURSUIT.
Whether a neutral sovereign is bound to pursue beyond his territorial waters a belligerent vessel fitted out in such waters in violation of his neutrality, has been much discussed. In La Amistad de Rues, 5 Wheat. 390, it was said by Story, J., that when a neutral nation is "called upon by either of the belligerents to act in such cases, all that justice seems to require is, that the neutral nation shall fairly execute its own laws, and give no asylum to the property unjustly captured." On the other hand, it is said by Story, J., in The Marianna Flora, 11 Wheat. 42, that "it is true, that it has been held in the courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our courts for adjudication. This, however, bas never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages." Sir W. Harcourt, in criticising these rulings in Historicus (p. 158), says: "The principle to be deduced from this decision [La Amistad] is, that the neutral power can not be called upon by the injured belligerent to grant him any remedy beyond that which may be exercised over property or persons who are at the time within the neutral jurisdiction. It is true that, in the celebrated case of the Portuguese expedition to Terceira, it was contended by the Duke of Wellington's government that an expedition having frauduiently evaded the English jurisdiction, and started from these shores in violation of the enlistment act, the English Government was entitled to pursue and seize the ships beyond the jurisdiction. And though this opinion receives some countenance from the dicta of the
court in the American case of The Marianna Flora, 11 Wheat. 42, nevertheless this doctrine was vehemently, and it is generally thought successfully, controverted by the minority, of whom Sir J. Mackintosh and the late Dr. Joseph Phillimore and Mr. Huskisson were the principal spokesmen (vide Hansard, vol. xxiv, new series). At all events, I think it is quite clear that, whether such a right exists or not, on the part of a neutral, it is not a duty on his part which the belligerent can call upon him to enforce."
During the war between Spain and the republics on the west coast of South America, the Peruvian Government, being unable to secure the clearance from the United States of ships of war for which it had contracted with citizens of the United States, entered into a secret convention with the Mosquera government in Colombia, which convention was ratified by President Mosquera November 20, 1866, under which Colombia undertook to purchase the vessels, and, after they arrived within Colombian jurisdiction, to sell and deliver them to Peru on terms which clearly indicated that the sale within the United States by Peru to Colombia was colorable only and in fraud of the neutrality laws of the United States. In pursuance of this convention, the Colombian Government, through its minister at Washington, obtained the release of the steamer R. R. Cuyler, which had been detained at New York for being fitted out in violation of the neutrality laws to make war in behalf of Peru and her allies against Spain, on the assurance that the vessel had been purchased by Colombia and was the property of that Government. When these proceedings became known to the Colombian Congress they were repudiated by that body, and the Colombian Government, President Mosquera having been displaced, disavowed and denounced them. Meanwhile, the Colombian Government was embarrassed by the presence of the vessel in its waters, involving the prospect of complications with Spain, and asked that it might be returned to New York under the naval protection of the United States. The Government of the United States declined to take this course, on the ground (1) that the vessel was permitted to depart from the jurisdiction of the United States in reliance upon the representations of the Colombian minister; (2) that, so far as the United States was concerned, the vessel must be considered as a foreign ship belonging to Colombia, and in nowise to the commercial marine of the United States; (3) that there was no law by which the United States could, under these circumstances, extend its control over the vessel in any place. whatsoever, so long as she was neither doing nor threatening any wrong to the United States; (4) that the United States could not receive her and cause her to be transferred in American waters to any belligerent.