Изображения страниц
PDF
EPUB

"The foregoing rules having been considered by us at several meetings, and being now unanimously approved, they are submitted to the President of the United States.

"THOMAS JEFFERSON.
"ALEXANDER HAMILTON.
"HENRY KNOX.

"EDMUND RANDOLPH."

The above, which is given in 10 Washington's Writings (by Sparks), 546, as a cabinet resolution, appears in 1 Am. State Papers, For. Rel. 140, as an appendage to Hamilton's Treasury Circular of Aug. 4, 1793. In 10 Washington's Writings, 546, the serious mistake is made of putting "lawful" for "unlawful" at the end of clause “6.”

For Hamilton's Treasury Circular, see, also, Moore, Int. Arbitrations, IV. 3971 et seq.

Etienne Guinet and John Baptist Le Maitre were indicted for a misdemeanor for fitting out and arming the vessel Les Jumeaux, at Philadelphia, to be employed in the service of the Republic of France against Great Britain, both powers being at peace with the United States. The indictment was brought upon section 3 of the neutrality act of 1795. Guinet only was apprehended. He pleaded not guilty. It appeared on the trial that the vessel when she entered Philadelphia, being laden with sugar and coffee, mounted four guns and two swivels. She had originally been a British cutter employed in the Guinea trade, and had ten portholes on each side; but only four were actually open at the time of her arrival, to accommodate the four guns thus mounted. After her arrival a contract was made with a ship carpenter to repair her, her condition being very rotten; and the carpenter agreed to open only the twenty ports which were pierced when she came into the port. While the repairs were proceeding, the Government instituted an inquiry into the subject. The twenty ports were then open, the upper deck was changed, and four guns on carriages, with two swivels, were lying on the wharf. The carpenter was ordered to desist, and a report was made to the Secretary of War, who directed that all the recent warlike equipments be dismantled, and the vessel restored to the state in which she arrived. The warden of the port caused the portholes to be shut up, and refused even to allow any ringbolts to be fixed in the vessel. When she sailed she carried, according to the custom-house entry, nothing in her hold but provisions, water casks, and wood. A witness stated that a few days previously he saw four guns in her hold, and the carpenter who repaired the boat said that she carried the four guns and two swivels which she brought with her. She sailed in the middle of the day, and some of the workmen went down in her as far as League Island. She came to at Wilmington, where she took on board three or four carriage guns, some small kegs, the contents of which were unknown,

and twenty to thirty muskets. The vessel then dropped down to New Castle, and a pilot boat was sent to Philadelphia to get some more guns and other articles. While the boat was waiting at Philadelphia for this purpose, she was seized, as well as the guns which were lying on the wharf, and the parties engaged in the transaction, one of whom was Guinet, were arrested.

The court held that the third section of the neutrality statute was meant to include all cases of vessels armed within United States ports, and that converting a merchant ship into a vessel of war must be deemed an original outfit, the offense consisting in the conversion from a peaceful use to warlike purposes. It was true, said the court, that the vessel left the wharf with only the number of guns which she had brought into port; but it was equally true that when she had dropped down the river, she took on board three or four more guns, muskets, water casks, etc., and it was manifest that other guns were ready to be sent to her by the pilot boat. These circumstances clearly proved a conversion from the original commercial design of the vessel to a design of cruising against the enemies of France. It was only necessary therefore to ascertain how far the defendant was knowingly concerned in the offense in question. It had been alleged in his defense that he was merely an interpreter. If he had appeared in that character alone, the court declared that it would not have thought it a sufficient ground for conviction. But the jury were to collect their views of the matter from all the circumstances. It appeared that the defendant carried orders from the owner of the ship to the ship carpenter; that he told the pilot boy at what time the guns should be taken on board the boat to be carried to the ship; that the accounts found in his possession contained charges for supplies of cannon ball, muskets, and commissions for services; and that the whole transaction was conducted in a secret-and mysterious manner at night. The court said that if the defendant was concerned in the offense, it was effected as far as it was in his power to complete it. The illegal outfit of the vessel was accomplished; and the fact that an additional number of cannon was not sent to augment her force was not owing to his respect for the laws, but to the vigilance of the police.

The jury found a verdict of guilty.

United States v. Guinet (1795), 2 Dall. 321.

A belligerent can not send out privateers from neutral ports.

Talbot . Janson, 3 Dall. 133.

"We never can allow one belligerent to buy and fit out vessels here, to be manned with his own people, and probably act against the other."

President Jefferson to the Secreatry of State, Aug. 12, 1808, 5 Jefferson's
Works, 339.

See, also, Mr. Buchanan, Sec. of State, tó Mr. Saunders, min. to Spain,
June 13, 1847, MS. Inst. Spain, XIV. 224.

66

Our municipal law, in accordance with the law of nations, peremptorily forbids not only foreigners, but our own citizens, to fit out within the United States a vessel to commit hostilities against any state with which the United States are at peace, or to increase the force of any foreign armed vessel intended for such hostilities against a friendly state.

"Whatever concern may have been felt by either of the belligerent powers lest private armed cruisers or other vessels in the service of one might be fitted out in the ports of this country to depredate on the property of the other, all such fears have proved to be utterly groundless. Our citizens have been withheld from any such act or purpose by good faith and by respect for the law." (President Pierce, annual message, 1855, Richardson's Messages, V. 327, 332.)

On the general question, see Br. & For. State Papers, 1864-65, vol. 55.

(3) CONSTITUENTS OF THE OFFENSE.

§ 1296.

Under the neutrality laws of the United States it is an indictable offense either to fit out or to arm.

United States v. Guinet, 2 Dall. 321, Wharton's State Trials, 93; United
States v. Quincy, 6 Pęt. 445.

If a vessel be fitted out, furnished, or armed within the waters of the United States, and there be sufficient grounds for believing that it is done with intent to employ it in the service of any foreign prince or state, to cruise or commit hostilities upon the subjects or property of another foreign prince or state with whom the United States are at peace, it is unlawful under the act of Congress. If an English vessel be seeking an armament with the latter purpose, it will be unlawful. But there is no law to prohibit her taking in arms or military stores, in the way of trade, or for necessary self-defense.

Rush, At. Gen., 1816, 1 Op. 190.

Sending armed vessels and munitions of war to the ports of a belligerent for sale as articles of commerce is not prohibited by the law of nations or by the laws of the United States. But, while the sale of a vessel armed or unarmed to a belligerent is not forbidden by international law, such a vessel, even on its way to the vendee, is liable to be seized as contraband on the high seas by the opposing belligerent.

Story, J., Santissima Trinidad, 7 Wheat. 283, 340.
“Judge Story, in delivering the opinion of the court, said—which was
not necessary to the decision of the case, as there had been an
illegal augmentation of force that the sending of this vessel, fully
armed and ready for use in war, under American colors, papers, and

command, to Buenos Ayres, for a bonâ fide purpose of offering her there for sale in the market, as a commercial enterprise, though it subjected her to capture as contraband, would not be a violation of our national neutrality." (Dana's Wheaton, § 439, note 215, p. 554.) "Without wearying the patience of the tribunal in the further discussion of this question, it will be assumed that a vessel of war is not to be confounded with ordinary contraband of war. Indeed, the only respectable authority which has been cited even apparently to the contrary, is an observation which Mr. Justice Story thrust into the opinion of the Supreme Court of the United States, upon the case of the Santisima Trinidad. If that eminent jurist had said that a vessel of war was to be regarded in public law as an article which might be legitimately constructed, fitted out, armed, equipped, or dealt in by a person in the territory of a neutral, with the intent that it should enter the service of a belligerent, subject only to a liability to capture as contraband of war by the other belligerent, the United States would have been forced, with great regret, to ask this tribunal to disregard an opinion so at variance with common sense, and with the whole current of the actions of nations. Happily they are under no necessity of casting an imputation on the memory of one of their brightest judicial ornaments. . . . The court decreed a restitution of the property on the second ground [unlawful augmentation of force]. Any remarks, therefore, upon the first point [illegal fitting out] were outside of the requirements of the Taking them in connection with the facts as shown in evidence, it is clear that the distinguished judge intended to confine his statement to the case of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent, and at the sole risk of the owner. . . . It may, however, be said that the ordinary experiences of human life show that such deeds border upon the debatable ground between good faith and fraud. The court which decided that case evidently did so on the impressions which the judges received from the particular evidence before them; for, on the very next day, the most illustrious of American judges, John Marshall, then Chief Justice of the United States, in the parallel case of the Irresistible, a vessel built at Baltimore, sent to Buenos Ayres, and there commissioned as a privateer, pronouncing the opinion of the same court, declared that the facts as to the Irresistible showed a violation of the laws of the United States in the original construction, equipment, and arming of the vessel; and that, should the court decide otherwise, the laws for the preservation of the neutrality of the country would be completely eluded. The Gran Para, 7 Wheaton, 471." (Case of the United States at Geneva, Papers relating to the Treaty of Washington, I. 82–83.)

case. .

Where certain vessels being constructed in the United States for Mexico for the purpose of waging war against Texas (an independent state) were not delivered, nor the property changed, within our jurisdiction, but were sent out of port under control of our own citizens unarmed, and where every possible precaution had been taken to insure pacific conduct on the high seas, it was held that, although the

sale was made abroad, if the vessels were equipped by American citizens within the United States for belligerent purposes, and for a nation belligerent to another with which ours was at peace, knowing the purposes for which they were to be employed, such equipment was repugnant to the act of 1818.

Legaré, At. Gen., 1842, 3 Op. 741.

See 3 Op. 738.

The fitting out of a war vessel of the German Government in the port of New York, while a state of war exists between that Government and Denmark, such vessel being calculated to cruise and commit hostilities against Denmark, its property or subjects, is contrary to the act of 1818. The fact that the vessel was to repair to Bremerhaven, there to await orders, made no difference, as any intent, ultimate or proximate, to commit hostilities is a violation of the act.

Johnson, At. Gen., 1849, 5 Op. 92.

See, as to this case, Dana's Wheaton, note 215, p. 561, citing Annuaire des
Deux Mondes (1852-53), 485; Ex. Doc. 5, 31 Cong.

Under the 3d section of the neutrality act of April 20, 1818, it is not necessary that the vessel should be armed or in a condition to commit hostilities, on leaving the United States, in order to convict a party concerned in the enterprise who is indicted for being concerned in fitting out a vessel with intent that she should be employed in the service of a foreign province or state at peace with the United States. It is sufficient if the defendant was knowingly concerned in fitting out or arming the vessel with intent as aforesaid, though the intent should appear to have been defeated after the vessel sailed. But if the defendant had no fixed intention when the vessel sailed to employ her as a privateer, but only a wish so to employ her if he could obtain funds on her arrival at a foreign port, for the purpose of arming her, he ought not to be convicted.

United States v. Quincy, 6 Pet. 445.

Replying to an inquiry whether an ironclad ship, intended for the Russian Government, which was then at war with Turkey, would be liable to detention if she "were duly purchased by a private party, who, in order to be enabled to transfer said vessel to the said belligerent, when beyond the jurisdiction of the United States, should obtain a clearance for some foreign port," Mr. Evarts said: "A circuitous transaction, including a violation of the law, is as much forbidden as a direct one."

Mr. Evarts, Sec. of State, to Mr. Park, Oct. 9, 1877, 120 MS. Dom. Let. 145.

A vessel constructed in a United States port for a hostile attack on a friendly sovereign will be arrested, under our neutrality laws, even

« ПредыдущаяПродолжить »