"I take the true principle to be that for violations of jurisdiction, with the consent of the sovereign or his voluntary sufferance, indemnification is due; but that for others he is bound only to use all reasonable means to obtain indemnification from the aggressor, which must be calculated on his circumstances, and these endeavors bona fide made; and, failing, he is no further responsible.' It would be extraordinary, indeed, if we were to be answerable for the conduct of belligerents through our, whole coast, whether inhabited or not.". Mr. Jefferson, President, to the Secretary of State, Apr. 21, 1807. 5 Jeff. Works, 69. 3 When there is an invasion of neutral rights by privateers commissioned by the United States their commissions will be withdrawn. Mr. Monroe, Sec. of State, to Mr. Rademaker, May 1, 1814. MSS. Notes, For. When there is probable cause to believe that expeditions are on foot" to violate the neutrality laws of the United States, the President will direct the district attorneys of the jurisdictions in which such movements are suspected to exist to order due inquiries, and, if there be suf ficient evidence, to commence legal proceedings against the parties im-plicated. Mr. Forsyth, Sec. of State, circular, Dec. 21, 1837. MSS. Dom. Let. Other circulars to the same effect will be found in the records of the Department of State for 1837-38-39. See also letter of Mr. Forsyth to the Governor of Ver. mont, Dec. 27, 1837; ibid. See infra, § 402. 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 held that the case was one for adjudication in ' court, and did not call for the extraordinary interference of the Government. 1 Op., Wirt, 1818. The better opinion is that the belligerent of whom an unjust advantage is taken (by a neutral's partiality) has a right to redress from the neutral who permits his neutrality to be thus abused. Whart. Com. Am. Law, §§ 249 ff, citing Lawrence's Wheaton, note 217; Dana's This was the position taken in the long-litigated case of the brig General Armstrong, which was seized during the war of 1812, in a Portuguese port, by a British cruiser, in violation of Portuguese neu: trality. The parties interested claimed redress from Portugal, but, on reference to Louis Napoleon (afterwards emperor) as arbitrator, the case was decided against them. Congress then passed a resolution appropriating a fund to repay them their losses. The claim of those interested in the brig General Armstrong is discussed in greater detail supra, §§ 27, 247, 248, 399. "The power A lives in perfect harmony and friendship with power B The power C, either with reason or without, commits hostilities against the subjects of the power B, takes some of their vessels, carries them into the ports of A, friend of both, where they are condemned and sold by the official agents of power C, without power A being able to prevent it. At last a treaty is entered into, by which the powers B and C adjust their differences, and in this treaty the power B renounces and abandons to power C the right to any claim for the injuries and losses occasioned to its subjects by the hostilities from power C. 66 "Quære. Has the power B any right to call upon power A for indemuities for the losses occasioned in its ports and coasts to its subjects by those of power C, after the power B has abandoned or relinquished, by its treaty with C, its rights for the damages which could be claimed for the injuries sustained by the hostile conduct of the power C? "Answer. We have considered the above case, and are of opinion that, on the general principles of the law of nations, the power A is not liable to the power B for acts done upon the vessels belonging to the subjects of power B by the power C, within the ports of A, the latter not being able to prevent it. Nations are not, any more than individuals, bound to perform impossibilities. "But even leaving impossibilities out of the question, and admitting that the power A could have prevented the injury which was committed by the power C, but refused or neglected to do it, we are of opinion that, if the power B has released or relinquished the same injury to power C, in that case the power A is no longer liable to any responsibility in damages on account of its acquiescence: "1st. Because it appears to us that, in the present case, the power C is to be considered as the principal party and the power A merely as an accessory, and that it is in that relation to each other that their several acts and their respective liability to the injured party is to be considered. Now, it is in the nature of all accessory things that they cannot subsist without the principal thing, and the principal trespass being done away by the release to C, the accessory offense of A must be done away likewise, according to the well-known maxim of law, accessorium sequitur principale. "2d. Because a release or relinquishment of a right implies in law the receipt of satisfaction; and it is contrary to every principle of jurisprudence for a party to receive a double satisfaction for the same injury, and here the injury received by B from C and from A is essentially the same. The acts of those two powers were indeed different, but the effect which they produced was the same, and that effect only cau be the object of compensation in damages. "3d. Because if the power A could be compelled to make satisfaction to power B for the injury which the latter has released or relinquished to C, that release or relinquishment would be defeated to every useful purpose, as the power C would be liable to the power A for the same damages from which it was intended to be discharged by the release of B. Now a release, as well as every other contract or engagement, im. plies that nothing shall be done by the grantor directly or indirectly, to defeat its bona fide intent or effect. If, therefore, the claim preferred by B upon A will, if admitted, indirectly defeat the release granted to C, such claim must be pronounced to be illegal. "Upon the whole, we are of opinion that the release granted by the power B to the power C operates also as a release to the power A for its participation in the injury which was the object of that release. "JARED INGERSOLL. "PHILADELPHIA, November 15, 1802." 2 Am. St. Pap. (For. Rel.), 605. "The power and duty of the United States to restore captures made in violation of our neutral rights and brought into American ports, have never been matters of question; but, in the constitutional arrangement of the different authorities of the American Federal Union, doubts were at first entertained whether it belonged to the executive Government or to the judiciary to perform the duty of inquiry into captures made in violation of American sovereignty, and of making restitution to the injured party. But it has long since been settled that this duty appropriately belongs to the Federal tribunals, acting as courts of admiralty and maritime jurisdiction. It, however, has been judicially determined that this peculiar jurisdiction of the courts of the neutral Government to inquire into the validity of captures made in violation of the neutral immunity, will be exercised only for the purpose of restoring the specific property when voluntarily brought within the territory, and does not extend to the infliction of vindictive damages, as in ordinary cases of maritime injuries, and as is done by the courts of the captor's own country. The punishment to be imposed upon the party violating the municipal statutes of the neutral state is a matter to be determined in a separate and distinct proceeding. The court will exercise jurisdiction and decree restitution to the original owner, in case of capture from a belligerent power by a citizen of the United States, under a commission from another belligerent power, such capture being a violation of neutral duty; but they have no jurisdiction on a libel for damages for the capture of a vessel as prize by the commissioned cruiser of a belligerent power, although the vessel belong to citizens of the United States and the capturing vessel and her commander be found and proceeded against within the jurisdiction of the court." 2 Halleck's Int. Law (Baker's ed.), 207. See as to action of prize courts in such cases, supra. §§ 328 ff. III. DEGREE OF VIGILANCE TO BE EXERCISED. (1) NOT PERFECT VIGILANCE, BUT SUCH AS IS REASONABLE UNDER THE CIRCUM STANCES. § 402. "Observations on the value of peace with other nations are unnecessary. It would be wise, however, by timely provisions to guard against those acts of our own citizens which might tend to disturb it, and to put ourselves in a condition to give that satisfaction to foreign nations which we may sometimes have occasion to require from them. ́ ́ ́I particularly recommend to your consideration the means of preventing those aggressions by our citizens on the territory of other nations, and other infractions of the law of nations, which, furnishing just subject of complaint, might endanger our peace with them. And, in general, the maintenance of a friendly intercourse with foreign powers will be presented to your attention by the expiration of the law for that purpose, which takes place, if not renewed, at the close of the present session." President Washington, Fourth Annual Address, 1792. "You may on every occasion give assurances, which cannot go beyond the real desires of this country, to preserve a fair neutrality in the present war, on condition that the rights of neutral nations are respected in us as they have been settled in modern times either by the express declarations of the powers of Europe, or their adoption of them on particular occasions. From our treaties with France and Holland, and that of England and France, a very clear and simple line of conduct can be marked out for us, and I think we are not unreasonable in expecting that England shall recognize towards us the same principles which she has stipulated to recognize towards France in a state of neu. trality." Mr. Jefferson, Sec. of State, to Mr. Pinckney, Apr. 20, 1793. MSS. Inst., Ministers. "Whereas it appears that a state of war exists between Austria, Prassia, Sardinia, Great Britain, and the United Netherlands on the one part, and France on the other, and the duty and interests of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers: "I have, therefore, thought fit, by these presents, to declare the dis position of the United States to observe the conduct aforesaid toward those powers respectively, and to exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever which may in any manner tend to contravene such disposition. "And I do hereby also make known that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations by committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States against such punishment or forfeiture; and further, that I have given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall, within the cognizance of the courts of the United States, violate the laws of nations with respect to the powers at war or any of them." President Washington's proclamation, Apr. 22, 1793. "The public papers giving us reason to believe that the war is be coming nearly general in Europe, and that it has already involved nations with which we are in daily habits of commerce and friendship, the President has thought it proper to issue the proclamation of which I inclose you a copy, in order to mark out to our citizens the line of conduct they are to pursue. That this intimation, however, might not work to their prejudice, by being produced against them as conclusive evidence of their knowledge of the existence of war and of the nations engaged in it, in any case where they might be drawn into courts of justice for acts done without that knowledge, it has been thought necessary to write to the representatives of the belligerent powers here the letter, of which a copy is also inclosed, reserving to our citizens those immunities to which they are entitled till authentic information shall be given to our Government by the parties at war, and be thus communicated with due certainty to our citizens." Mr. Jefferson, Sec. of State, to Messrs. Morris, Pinckney, and Short, Apr. 26, 1793. MSS. Inst., Ministers. "This [the Cabinet] sits almost every day on questions of neutrality. H. produced the other day the draft of a letter from himself to the collectors of the customs, giving them in charge to watch over all proceedings in their districts contrary to the laws of neutrality or tending to impair our peace with the belligerent powers, and particularly to observe if vessels pierced for guns should be built, and to inform him of it. This was objected to: (1) As setting up a system of espionage destructive of the peace of society; (2) transferring to the Treasury Department the conservation of the laws of neutrality and peace with foreign nations; (3) it was rather proposed to intimate to the judges that the laws respecting neutrality being now come into activity, they should charge grand juries with the observance of them, these being constitutional and public informers, and the persons accused knowing of what they should do, and having an opportunity of justifying themselves. E. R. found out a hair to split, which, as always happens, became the decision. H. is to write to the collectors of the customs, who are to convey their information to the attorney of the district, to whom E. R. is to write, to receive their information and proceed by indictment. The clause respecting the building vessels pierced for guns is to be omitted; for, although three against one thought it would be a breach of neutrality, yet they thought we might defer giving a public opinion on it as yet. Everything, my dear sir, hangs upon the opinion of a single person, and that the most indecisive one I ever had to do busi ness with. He always contrives to agree in principle with one, but in conclusion with the other." 4 Mr. Jefferson, Sec. of State, to Mr. Madison, May 13, 1793, 2 Randall's Life of "The United States, in prohibiting all the belligerent powers from equipping, arming, and manning vessels-of-war in their ports, have exercised a right and a duty with justice and with great moderation." Mr. Jefferson, Sec. of State, to Mr. Genet, June 5, 1793. 1 Wait's St. Pap., 93; 1 Am. St. Pap. (For. Rel.), 150. |