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should be neutral. The supplies in question are destined for the aid of the legitimate Government in the maintenance of its integrity against insurgents.'
Mr. Seward, Sec. of State, to Mr. Wheelwright, Sept. 15, 1868, 79 MS.
"Valuable assistance was rendered by the Japanese authorities to the United States transport ship Morgan City while stranded at Kobe. Permission has been granted to land and pasture army horses at Japanese ports of call on the way to the Philippine Islands. These kindly evidences of good will are highly appreciated.”
President McKinley, annual message, Dec. 5, 1899, For. Rel. 1899, xxv.
2. NOT ESSENTIAL, AS AGAINST DISTURBERS OF PEACE.
July 10, 1810, Peter A. Schenck, surveyor of the port of New York, acting on the written direction of David Gelston, collector of the port, seized the ship American Eagle and certain ballast, provisions, and stores, forming part of her equipment, all the property of Goold Hoyt, for a violation of section 3 of the act of 1794. On the trial, before the United States district court, the ship and other property were acquitted, and the court refused to give a certificate of reasonable cause of seizure. In January, 1813, Hoyt brought an action of trespass against Gelston and Schenck in the supreme court of the State of New York for damages for the seizure. The defendants pleaded, in substance, (1) that the seizure of the ship was justified because she was attempted to be fitted out and armed, with intent to be employed in the service of a foreign state (viz, that part of the island of St. Domingo then under the dominion of Petion) to commit hostilities upon the subjects of another foreign state with whom the United States was at peace (viz, that part of St. Domingo then under the government of Christophe); and (2) that the seizure was made by authority of the President of the United States under section 7 of the act of 1794. On demurrer these pleas were overruled, and on the trial a judgment for damages was entered for the plaintiff. This judgment was affirmed by the New York court of errors and appeals, and the case was then brought before the Supreme Court of the United States.
Mr. Justice Story, delivering the opinion of the court, held (1) that the defendants, as officers of the customs, had a right to make the seizure, if there were sufficient grounds for it; (2) that the sentence of acquittal of the United States district court, with a denial of a certificate of reasonable cause, was conclusive evidence that the seizure was tortious, and precluded the litigation of the question in
any other forum, e. g., in the courts of the State of New York; (3) that, as no evidence was offered in the State court to prove that Petion or Christophe was recognized by the United States or France as a government, it did not belong to that court to take judicial notice of the matter and decide affirmatively that Petion and Christophe were foreign princes within the purview of section 3 of the act of 1794; (4) that section 7 of the act of 1794 did not confer on the President the power to order a seizure, but only to call out the military and naval forces when necessary to enforce a seizure; (5) that the judgment of the New York court of errors and appeals was affirmed, with damages at 6 per cent from the date of its rendition, with costs. On point "(3)" Mr. Justice Story said:
"No doctrine is better established than that it belongs exclusively to governments to recognize new states in the revolutions which may occur in the world; and until such recognition, either by our own. Government, or the government to which the new state belonged, courts of justice are bound to consider the ancient state of things as remaining unaltered. This was expressly held by this court in the case of Rose v. Himely (4 Cranch, 241), and to that decision on this point we adhere. And the same doctrine is clearly sustained by the judgment of foreign tribunals. (The Manilla, 1 Edwards, R. 1; The City of Berne . The Bank of England, 9 Ves. 347; Dolden v. Bank of England, 10 Ves. 353, 11 Ves. 283.) If, therefore, this were a fact proper for the consideration of a jury, and to be proved in pais, the court below were not bound to admit the other evidence, unless this fact was proved in aid of that evidence, for without it no forfeiture could be incurred. If, on the other hand, this was matter of fact, of which the court were bound judicially to take cognizance, then the court were right in rejecting the evidence, for as far as we have knowledge, neither the government of Petion or Christophe have ever been recognized as a foreign state, by the Government of the United States, or of France."
In view of the decision that the United States district court's judgment of acquittal without a certificate of reasonable cause established the tortious character of the seizure, the foregoing expression of opinion upon the question of recognition was more or less obiter. Mr. Justice Johnson, while concurring in the judgment of the court, stated in a brief opinion that he considered that the court had decided only (1) that the State court was incompetent to try the question of forfeiture, and (2) that section 7 of the act of 1794 gave the President power merely to call out the Army and Navy when necessary to enforce a seizure.
Gelston v. Hoyt (Feb. 27, 1818), 3 Wheat. 246.
In section 3 of the act of 1794, under which this case was tried, the words used were "foreign prince or state." The defect disclosed in these
words by the foregoing case was immediately cured by the act of April 20, 1818 (sec. 5283, Revised Statutes), by which there were added to the phrase "of any foreign prince or state" the words "or of any colony, district, or people."
The president of a shipbuilding firm in Wilmington, Delaware, inquired whether he could, without infringing the neutrality laws. of the United States, fit out and deliver to officers of the Colombian Government at Wilmington, with a custom-house clearance for a Colombian port, an armed gunboat with which the Colombian Government expected to take Cartagena and other Colombian ports then in the hands of the insurgents. The Department of State replied: "The existence of a state of war has not, in a formal sense, been recognized by this Government in respect of the hostilities in Colombia, nor have the insurgents there in arms against the recognized Government been regarded as belligerents. There does not appear to be any possible ground, therefore, for considering a contractual operation such as you describe, with the legitimate authorities of Colombia, as a contravention of the neutrality statutes of the United States. The same question came up during the late Haytian insurrection, when the insurgents, who held Jacmel, Gonaives, and other ports of Hayti, sent agents to the United States to oppose and to contest by legal means the right of the legitimate Government of Hayti to procure warlike supplies in the United States, and the result was wholly adverse to their pretensions. I see no reason to regard your proposed delivery of such gunboat to the Colombian minister or his authorized agent as other than an ordinary commercial venture on your part."
Mr. Bayard, Sec. of State, to Mr. Gibbons, July 3, 1885, 156 MS. Dom.
The neutrality act of 1818 is not restricted in its operation to cases of war between two nations or where both parties to a contest have been recognized as belligerents, that is, as having a sufficiently organized political existence to enable them to carry on war. It would extend to the fitting out and arming of vessels for a revolted colony, whose belligerency had not been recognized, but it should not be applied to the fitting out, etc., of vessels for the parent state for use against a revolted colony whose independence has not in any manner been recognized by our Government.
Hoar, At. Gen., 1869, 13 Op. 177.
"The phrase neutrality act' is a distinctive name, applied for convenience sake merely, as is the term foreign enlistment act' to the analogous British statute. The scope and purpose of the act are not thereby declared or restricted. The act itself is so compre
H. Doc. 551-vol 7-69
hensive that the same provisions which prevent our soil from being made a base of operations by one foreign belligerent against another likewise prevent the perpetration within our territory of hostile acts against a friendly people by those who may not be legitimate belligerents, but outlaws in the light of the jurisprudence of nations. There is and can be no neutrality' in the latter case. If the hostile party carries his hostility beyond the pale of law, he commits a crime against the United States and is amenable to the prescribed process and punishment."
Mr. Bayard, Sec. of State, to Mr. Valera, Spanish min., July 3, 1885, For.
"I announce with sincere regret that Hayti has again become the theater of insurrection, disorder, and bloodshed. The titular government of President Salomon has been forcibly overthrown, and he driven out of the country to France, where he has since died.
"The tenure of power has been so unstable amid the war of factions that has ensued since the expulsion of President Salomon, that no Government constituted by the will of the Haytian people has been recognized as administering responsibly the affairs of that country. Our representative has been instructed to abstain from interference between the warring factions, and a vessel of our Navy has been sent to Haytian waters to sustain our minister and for the protection of the persons and property of American citizens.
"Due precautions have been taken to enforce our neutrality laws and prevent our territory from becoming the base of military supplies for either of the warring factions."
President Cleveland, annual message, Dec. 3, 1888, For. Rel. 1888, xiv. With reference to the question whether the fitting out of a vessel by or in the interest of the Congressional party in Chile, who had not been recognized by the United States as belligerents, could be considered as a violation of section 5283, Revised Statutes, the court said that the section was found in the chapter entitled "Neutrality” and was "originally enacted in furtherance of the obligations of the nation as a neutral," and added: "The very idea of neutrality imports that the neutral will treat each contending party alike; that it will accord no right or privilege to one that it withholds from the other, and will withhold none from one that it accords to the other."
United States v. Trumbull (1801), 48 Fed. Rep. 99.
The foregoing may be regarded as obiter, as the court held that the facts alleged did not in any event constitute a violation of section 5283. The term "neutrality" forms no part of the statute itself, the obvious purpose of the law being to prevent the commission of certain acts designed to disturb the peace of friendly nations, and not merely to prevent the commission of unneutral acts after a state of public war
had actually been established. It could hardly have been the intention of the legislature to make the United States a safe place for the getting up of expeditions to start and help along insurrections in friendly countries till the point of public war and recognized belligerency should be reached, and then to make it a penal offense to render aid thereafter. Such a result would be most incongruous, .to say the least.
During the insurrection in Cuba, which began in 1895, the Government of the United States declined to recognize the insurgents as belligerents. On June 12, 1895, however, President Cleveland issued what is commonly called a "neutrality neutrality" proclamation. This proclamation recited that the island of Cuba was "the seat of serious civil disturbances, accompanied by armed resistance to the authority of the established Government of Spain," a power with which the United States were at peace, and that "the laws of the United States prohibit their citizens, as well as all others being within and subject to their jurisdiction, from taking part in such disturbances adversely to such established Government, by accepting or exercising commissions for warlike service against it, by enlistment or procuring others to enlist for such service, by fitting out or arming or procuring to be fitted out and armed ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such Government." Therefore, in recognition of the laws aforesaid, and in discharge of the obligations of the United States towards a friendly power, and as a measure of precaution, and to the end that citizens of the United States and all others within their jurisdiction may be deterred from subjecting themselves to legal forfeitures and penalties," the President admonished all such citizens and other persons to abstain from every violation of the laws referred to, and warned them that all violations of such laws would be rigorously prosecuted; and he enjoined upon all officers of the United States charged with the execution of the laws in question "the utmost diligence in preventing violations thereof and in bringing to trial and punishment any offenders against the same."
For. Rel. 1895, II. 1195.
The laws of the United States, commonly known as the neutrality laws, are so called because their main purpose is to enable the United States to fulfill its duties as a neutral toward belligerents, but they were also intended to prevent offenses against friendly powers, whether such powers are or are not engaged in war or in an attempt to suppress a mere revolt.
Harmon, At. Gen., Dec. 10, 1895, 21 Op. 267, 270.