decided (United States v. Guinet) to be a violation of our laws of neutrality; and adds, that the French minister ought not to be surprised that this matter should become a subject of judicial inquiry, and the effect of the subsequent alleged transfer to the French government a matter of judicial decision.

The United States Attorney was again instructed to intervene in this cause, as in the preceding, and to suggest for the consideration of the court the defense of the transfer to the French government, and her commission by it; which he did, as before, in the form of a suggestion. At the next term of the court, (April 15, 1796,) the Secretary of State, Mr. Pickering, requests M. Adet to furnish the evidence of the bona fide transfer to the French government, for the use of the United States Attorney. M. Adet replies, (April 22,) declining to furnish proofs to the judiciary of a sale and payment, &c., saying that his relations are solely with the Executive; and gives a certificate that she is a French public ship, duly commissioned, to which he afterward, on request of the Attorney, added the date of her acquiring that character. Mr. Rawle fears this certificate will not be received as legal proof; but M. Adet declines to furnish any other, as beneath the dignity of his nation; and informs the Secretary of State (June 3, 1796) that the French gov ernment had ordered him to ascertain, in conference with the Secretary, the reparation for the injuries and damages from the proceedings in the matter of this vessel; and the certificate he furnishes as a courtesy to the United States Government, and not for a cause in which the French government has any further interest. At October term, 1796, the motion of the United States Attorney for a dismissal of the proceedings, on the grounds suggested, came up for argument. At the hearing, another question presented itself, under the statute law, whether the circuit court could take original cognizance of informations for forfeiture under the act of 1794; and the court dismissed the proceedings, on the ground that such proceedings must be instituted in the district court. This dismissal was on the 15th October, 1796. On the 19th October, Mr. Pickering wrote to M. Adet, informing him of the dismissal of the suit, and adding, "The ship, now for the first time out of judicial custody, is in the hands of the marshal, but ready to be delivered to your order." To this letter M. Adet made no reply, leaving the vessel now disarmed and out of commission, on the hands of the United States Government. She lay two years at the wharf, when the Government, on the 22d November, 1798, gave notice to the French consul-general of its intention to sell the vessel as perishable, if he knew no objection. He replied that he had no authority to act in the premises. The vessel was then sold at public auction, in this deteriorated state, for $1,060; and the Secre tary of State, Mr. Pickering, gave a bill of sale to the purchasers, dated 9th January, 1797 [9], in which he recites the proceedings of the circuit court for a forfeiture; the abandonment of her to the United States by the French minister, on the 22d September, 1795; her discharge from the custody of the court; the notice to M. Adet that the vessel was subject to his order; his failure to make any reply thereto; and the deterioration of the vessel, as reasons for the sale.

This detailed account of the case has been given rather in deference to the great importance which an imperfect knowledge of the facts caused to be attached to it of late, in the questions arising out of the relations between England and the United States, than from the importance it will be found entitled to, after this full exposition of its history. It will be seen that the only judicial decision was, that a neutral cannot maintain, in the civil courts of his own country, a private suit

against a foreign vessel of war, or her commander, to recover damages for an alleged illegal capture of his property, where the capture was made on the high seas, under a regular belligerent commission, in time of war, and had been adjudged lawful jure belli by a regular prize tribunal of the captor's country, and the prize was not within the jurisdiction of the neutral country. As the Cassins was taken into judicial custody within twenty-four hours of her arrival, and remained in that custody until after she had been disarmed and dismantled by the French minister, and formally abandoned by him to the United States Government, with a reclamation for damages, the political department of the United States Government never had practically before it the question, what it would do with an armed foreign vessel of war within its control, which had, on a previous voyage, before it became a vessel of war, and while it was a private vessel of French citizens, added warlike equip ments to itself within our ports, in violation of our statutes for the preservation of our neutrality. When it came out of judicial custody, it was a stripped, deteriorated, and abandoned hulk, and was sold as such by public auction. The only political action of our Government consisted in this: It refused to interfere to take the vessel from the custody of the judiciary, but instructed its attorney to see that the fact of its being a bona fide vessel of war be proved and brought to the attention. of the court, with a motion for its discharge from arrest on the ground of its exemption as a public ship, if it turned out to be so. What course the Executive would have taken as to the vessel, if it had passed out of judicial enstody before it was abandoned and dismantled, does not, of course, appear. And that is the only question of interest to international law. Whether the Government would have restored her armed, with asylum continued, or armed yet ordered out of the country with future asylum denied, or would have demanded a partial or entire disarmament, all this must be left to conjecture.

For authorities on the political and judicial history of the Cassius, see United States v. Gninet, Wheaton's State Trials, 93. United States v. R. Peters, Dallas, iii, 121. Ketland v. The Cassius, Dallas, ii, 355. The correspondence between M. Adet and Mr. Pickering, and Mr. Rawle's report, in Waite's Am. State Papers, (2d edit.,) ii, 389–425. Mr. Pickering's dispatch to Mr. Pinkney, of January 16, 1797, part relating to the Cassius; Waite's State Papers, ii, 136–138. Mr. Bemis's pamphlet on American Neutrality, (Boston, 1864,) and Letters of the Boston Daily Advertiser of August 21 and 22, 1865. Letters of Historicus (Mr. Harcourt) to the London Times of November 7, 1863, and April 14, 1865. The Magdalena, (Talbot v. Jansen, Dallas, iii, 133.) The facts presented by this leading case on neutrality are these: The schooner Fairplay, an American vessel, was sent to Guadaloupe in command of Talbot, a citizen of the United States, in November, 1793, and there sold to Redick, an American citizen temporarily residing there. Talbot and Redick both became naturalized at Guadaloupe as French citizens, after a few days' residence; and the schooner, now named L'Ami de la Point à Petre, was authorized as a privateer, under command of Talbot, by the local French authorities, and sailed on a cruise. She went to the mouth of the Savannah River, and there furnished guns to an American vessel built and owned in Virginia, but then called L'Ami de la Liberté, commanded by one Ballard, a native of Virginia, who held an assignment of a power to command her given by the French admiral in the United States, and recognized and authenticated by the French consul at Charleston. Ballard had gone through the form of relinquishing the character of a citizen of Virginia in a court of that State, but had not

been naturalized by French law or visited French territory, yet called himself a French citizen. The two vessels then cruised in company, and captured the brig Magdalena, a Dutch vessel, and brought her to Charlestou. The Dutch were then at war with France, and at peace with the United States. Jansen, the master of the Magdalena, filed a libel to compel Ballard, who had immediate charge of the brig, to make restitution. Talbot filed a claim to her as a prize duly captured by him in war. The cause came by appeal to the Supreme Court.

The Supreme Court held that Ballard was a citizen of the United States; that the pretended authority to him, given or adopted by the French consul at Charleston, to cruise in command of an American vessel lying in the United States, under the French flag, against commerce friendly to us, was invalid; that his taking guns on board in our waters for that cruise was a violation of our sovereignty; and that any prize made by him on that cruise, and brought into our ports, must be restored. As to Talbot, the court held that, even assuming him to be a French citizen and his vessel to be a French privateer, his commission did not authorize him to arm and fit out an American vessel in our waters, and to make a consort of her, when she was not commissioned as a French cruiser, so as to exempt their joint prizes, brought into our ports, from being subject to our jurisdiction, and restored by our courts. The Mag dalena was ordered to be restored.

The Alfred, (Dallas, iii, 307.) A vessel was built in New York for the purpose of being employed as a privateer in the then apprehended war with Great Britain. The controversy being adjusted, she was sent to Charleston, aud there sold to a French merchant, who took her to a French island, where she was fully equipped and armed and commissioned as a privateer, sailed on a cruise, and captured the British merchant ship Alfred, and brought her to Charleston. When she left the United States, her equipments were imperfect, but calculated for war, though such as were then frequently used in merchant vessels. The court held that this was not such a fitting out in the United States, to cruise against friendly commerce, as authorized a restitution. She was lawfully fitted out in view of our own hostilities, and then sold bona fide to a private citizen of a nation engaged in war, who sent her out of the country unchanged, not to cruise, but to go to France, there to get authority and means to cruise.

The Phoebe Ann, (Dallas, iii, 319.) The court refused to restore a prize brought into our ports by a French privateer, which had previously made necessary nautical repairs in our ports, no other act being alleged against her as illegal, than taking out and replacing her guns, to facili tate her repairs.

The Exchange, (Cranch, vii, 116.) In this case an opinion of the highest order of merit was delivered by Chief Justice Marshall. The Exchange was alleged to be an American vessel, the property of the libellants, lying in Philadelphia, in the unlawful custody of a Frenchman named Begon, who assumed to control her; and an order of restitution was prayed for. Mr. Dallas, the attorney for the United States, intervened with a suggestion that the vessel was a public armed ship of the Emperor Napoleon, duly commissioned in France as such, and visiting Philadelphia only as a port of necessity. The cause was argued by Pinkney and Dallas for the United States, and Harper and Hare for the libellants. The decision was, that, assuming the vessel to have been once the property of the libellants, as she was now a public armed vessel of a friendly state, visiting our ports in pursuance of the understood permission of nations, the court would not try the question, by proceed

ings against the vessel or her commander, of the legality of the act by which she had been converted into a public ship; and that it was proper that the suggestion of her character and immunity should be made by the attorney for the United States.

Santissima Trinidad, (Brockenbrough, i, 470, Chief Justice Marshall's Circuit Decisions.) The act of 1794 is declaratory of the preëxisting law of nations, and intended to aid the Executive in the enforcement of the law. Also, Opinions of the Attorneys General, vii, 367.

Alerta, (Cranch, ix, 359.) The French privateer L'Épine, being at New Orleans, increased her crew by secretly shipping several persons known to be Americans, went to sea, and captured the Spanish brig Alerta, and sent her into New Orleans, as a port of necessity. On the petition of the owner, the court held that it had jurisdiction to inquire whether the prize was made by a vessel which had increased her force for the cruise, in violation of our sovereign rights. Restitution was made.

The Invincible, (Wheaton, i, 238.) A French privateer, captured by a British vessel of war, and captured again from the British prize crew by an American cruiser, was brought into a port of the United States for adjudication as prize. The original French owner claimed restitution, which was allowed, on payment of salvage to the American captor. The privateer was sold by consent, and the proceeds substituted. An American citizen intervened with a claim against the proceeds, on the ground that a vessel of his had been unlawfully captured by the priva teer while under French command. The court decided that this question could not be inquired into; that where a privateer, duly commissioned as such by a belligerent state, comes into a port of a neutral power, the courts of that Power cannot proceed against her or her officers, to obtain compensation for an alleged illegal capture made by her of a vessel of a citizen of that neutral power. The acts of the privateer, done in execution of the war powers, have the same exemption from such procedure as those of a vessel of war the property of a state. There are a great many dieta in the opinion of Judge Washington, but that is the only point decided. The reasoning of the decision is, that, prima facie, a court of admiralty has the function of inquiring into violent dispossessions of property at sea; that, if it is suggested that the act was done jure belli, under authority of a state, the court may inquire into the validity of the authority or commission, so far as to detect piracy, and make sure that there is a sovereign responsibility for the act; but, if there be such, it cannot pass upon the question whether the capture, made bona fide under such authority, was in accordance with the rules of war. The court may, however, for other reasons, continue its inquiry, as if it is suggested that the capture was made in violation of the sovereign right of its own state, as when made within its waters, or by a vessel which had been fitted out or otherwise equipped for the cruise in violation of the rights of the state as a neutral sovereignty. This it may do, for the purpose of restoring a prize within its jurisdiction. But the court did not say, even as an obiter dictum, that the civil court of admiralty, in a private suit, could, even on such grounds, proceed against, condemn, and sell a vessel duly commissioned and serving as a public ship of war of a foreign power.

Estrella, (Wheaton, iv, 298.) A Venezuelan privateer, having increased her crew at New Orleans, captured the Spanish brig Estrella, and sent her to New Orleans. On claim of the Spanish owner, the Estrella was restored.

Le Amistad de Rues, (Wheaton, v, 385.) A Venezuelan privateer

captured a Spanish vessel on the high seas, and sent her toward New Orleans. On her way she was taken possession of by a United States ship and carried into that port. She was there libeled by the Spanish owner in the court of admiralty for restitution, on the ground that the privateer which captured her had increased its force within the United States before the capture, in violation of the neutrality laws. The court decreed restitution, and made a further decree condemning the commander of the privateer to pay damages to the owner of the vessel for loss occasioned by the capture. An appeal from both decrees was taken to the Supreme Court. That court, on examination of the proofs, decided that the privateer had not violated our neutrality laws by the work done upon her, and dismissed the libel. This was, it will be seen, only a decision on a question of evidence; and by that decision the whole suit failed. But Judge Story, in delivering the opinion of the court, thought proper to go beyond what was necessary for terminating the suit, and said that, if the privateer had violated our neutrality laws, so as to have warranted the decree of restitution of the prize, that would not have justified the decree for damages. In explanation of this distinction, the learned judge shows that a civil court of a neutral country cannot adjudicate upon the validity of a capture jure belli, as between the.captor and the prize. Its only function is to vindicate the offended sovereignty of its own country. If a prize is taken in war, in violation of the territory or other rights of a neutral, the neutral may undo the act, and put the parties in statu quo ante, by releasing the prize and restoring it to the owner. And the owner of the prize may demand that. The neutral does this solely to vindicate its own sovereignty, and not with any regard to the validity or invalidity of the capture as between the parties. Into that it need not and cannot inquire. The fact that a capture is made in violation of the rights of a neutral sovereign is no legal objection to the capture, as between the parties. Consequently, the neutral court cannot award damages to the owner of the captured vessel, as for a capture made without probable cause, or as otherwise illegal. With reference to this distinction, Judge Story used the following language: "The neutral nation should fairly execute its own laws, and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property, if found within its own ports. Beyond this it is not bound to interpose between the belligerents." This clause of the opinion has been, apparently with no attention to the facts to which alone it refers, unwarrantably cited, in Parliament and elsewhere, during the recent controversy, as an authority to the point that the political department of a neutral state is under no obligation to refuse asylum to a belligerent cruiser that has violated its neutrality. (Speech of Sir R. Palmer, attorney general, in the House of Commons, May 13, 1864.) That question was in no way before the court; the opinion had no reference to it; and, indeed, the question is not a judicial one.

La Concepcion, (Wheaton, vi, 235.) The Supreme Court ordered a restitution to the Spanish owner of a vessel taken by a privateer built, fitted out, manned, and owned in the United States, and commanded by a citizen of the United States, and which had sailed thence to cruise under the Buenos Ayrean flag and commission. It was proved that, after one cruise, she went to Buenos Ayres, and that the capture was on a second cruise. But, there being no satisfactory proof of a sale at Buenos Ayres, the court held her to be still an American vessel, belonging to the same owner, and decreed restitution of her prize.

Bello Corrunes, (Wheaton, vi, 152.) A vessel owned and commanded by American citizens, and fitted out and armed in Baltimore, sailed