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The English memoir was written by Edward Gibbon. The several memoirs constitute the first example and precedent of regular discussion of the great question, Under what circumstances may a neutral Government recognize the independence of the rebels or seceders of another and a friendly government?
"My knowledge of these memoirs is derived from the Causes Celébrès of Martens; but I find, to my surprise, on comparing Martens with your English copy, that the original has been greatly mutilated by Martens."
The expeditions of Cunningham (or Conyngham) are narrated in detail in Hale's Franklin in France, 136, 174, 309, 346, 348, 375.
See, also, the same work for notices of the French evasion of their own neutrality laws in rendering aid to American privateers prior to the declaration of war by France against England.
The seizure by one belligerent, in neutral territory, of a ship belonging to another belligerent, is unlawful, and the ship must be restored. Randolph, At. Gen. 1793, 1 Op. 32; 1 Am. State Papers, For. Rel. 148.
"Restitution of prizes has been made by the Executive of the United States only in the two cases, 1st, the capture within their jurisdiction, by armed vessels, originally constituted such without the limits of the United States; or 2d, of capture, either within or without their jurisdiction, by armed vessels, originally constituted such within the limits of the United States, which last have been called proscribed vessels.
"All military equipments within the ports of the United States are forbidden to the vessels of the belligerent powers, even where they have been constituted vessels of war before their arrival in our ports; and where such equipments have been made before detection, they are ordered to be suppressed when detected, and the vessel reduced to her original condition. But if they escape detection altogether, depart and make prizes, the Executive has not undertaken to restore the prizes.
“With due care, it can scarcely happen that military equipments of any magnitude shall escape discovery. Those which are small may sometimes, perhaps, escape, but to pursue these so far as to decide that the smallest circumstance of military equipment to a vessel in our ports shall invalidate her prizes through all time, would be a measure of incalculable consequences. And since our interference must be governed by some general rule, and between great and small equipments no practicable line of distinction can be drawn, it will be attended with less evil on the whole to rely on the efficacy of the means of prevention, that they will reach with certainty equipments of any magnitude, and the great mass of those of smaller importance also; and if some should in the event, escape all our vigilance, to consider these as of the number of cases which will at times baffle the
restraints of the wisest and best-guarded rules which human foresight can devise. And I think we may safely rely that since the regulations which got into a course of execution about the middle of August last, it is scarcely possible that equipments of any importance should escape discovery.”
Mr. Jefferson, Sec. of State, to minister of Great Britain, Nov. 14, 1793, 4 Jefferson's Works, 78; 5 MS. Dom. Let. 346.
A French privateer having come to Charleston unarmed, leave to arm her was asked and refused. She returned, after a cruise, with guns mounted and a prize. The court restored the prize, the ground being that she did take on board the guns at Charleston to be used as her armament, and that the act was an illegal augmentation of force.
The Nancy, Bee, 73.
See, also, The Betty Cathcart, Bee, 292, and Dana's Wheaton, § 439, note, 215; The Alerta v. Moran (1815), 9 Cranch, 359.
See Geyer v. Michel (1796), 3 Dall. 285.
The capture of a vessel of a country at peace with the United States, made by a vessel fitted out in one of our ports, and commanded by one of our citizens, is illegal, and if the captured vessel is brought within our jurisdiction, the district courts, upon a libel for a tortious seizure, may inquire into the facts, and decree restitution. And if a privateer, duly commissioned by a belligerent, collude with a vessel so fitted out and commanded, to cover her prizes and share with her their proceeds, such collusion is a fraud on the law of nations, and the claim of the belligerent will be rejected.
Talbot . Janson (1795), 3 Dall. 133.
"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 may 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 (3d ed., by Baker), 173.
"Our courts, however, held [during the war between France and England], and they continue to hold, that if the capture be made within the territorial limits of a neutral country into which the prize is brought, or by a privateer which has been illegally equipped in such neutral country, the prize courts of that country not only possess the power, but it is their duty to restore the property to the owner." W. B. Lawrence, 127 North Am. Rev. (July, 1878), 26.
If a capture be made by a privateer, which had been illegally equipped in a neutral country, the prize courts of such neutral country have power and it is their duty to restore the captured property, if brought within their jurisdiction, to its owner.
Brig. Alerta v. Moran, 9 Cranch, 359.
There is no distinction between captures, in violation of our neutrality, by public ships and by privateers.
L'Invincible, 1 Wheat. 238; The Santissima Trinidad, 7 id. 283.
If restitution be claimed on the ground that the capturing vessel has augmented her force in the United States by enlisting men, it rests upon the claimant to prove the enlistment; and, this being done, upon the captors to prove that the persons enlisted were subjects or citizens of the prince or state under whose flag the cruiser sails, transiently within the United States, and therefore subject to enlist
The Estrella, 4 Wheat. 298; S. P., La Amistad de Rues, 5 id. 385.
If a prize, taken in violation of our neutrality, is voluntarily brought within our territory, the courts must decree restitution to
the original owner. Where, however, the original owner seeks restitution on the ground of a violation of our neutrality by the captors, the onus probandi rests on him to make out his case.
La Amistad de Rues, 5 Wheat. 385.
"The doctrine heretofore asserted in this court is, that whenever a capture is made by any belligerent in violation of our neutrality, if the prize come voluntarily within our jurisdiction, it shall be restored to the original owners. This is done upon the footing of the general law of nations; and the doctrine is fully recognised by the act of Congress of 1794. But this court have never yet been understood to carry their jurisdiction, in cases of violation of neutrality, beyond the authority to decree restitution of the specific property, with the costs and expenses during the pending of the judicial proceedings. We are now called upon to give general damages for plunderage, and if the particular circumstances of any case shall hereafter require it, we may be called upon to inflict exemplary damages to the same extent as in ordinary cases of marine torts. We entirely disclaim any right to inflict such damages; and consider it no part of the duty of a neutral nation to interpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of a capture between belligerents. Strictly speaking, there can be no such thing as a marine tort between the belligerents. Each has an undoubted right to exercise all the rights of war against the other; and it cannot be a matter of judicial complaint, that they are exercised with severity, even if the parties do transcend those rules which the customary laws of war justify. At least, they have never been held within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own government exclusively for any excess or irregularity in their proceedings; and a neutral nation ought not otherwise to interfere, than to prevent captors from obtaining any unjust advantage by a violation of its neutral jurisdiction. A neutral nation may, indeed, inflict pecuniary, or other penalties, on the parties for any such violation; but it then does it professedly in vindication of its own rights, and not by way of compensation to the captured. When called upon by either of the belligerents to act in such cases, all that justice seems to require is, that 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; but beyond this it is not obliged to interpose between the belligerents."
Story, J., La Amistad de Rues, 5 Wheat. 385, 389.
A capture of Spanish property, in violation of our neutrality, by a vessel built, armed, equipped, and owned in the United States, is
illegal, and the property, if brought within our territorial limits, will be restored to the original owner.
La Conception, 6 Wheat. 235.
If a public armed vessel of a belligerent violate our neutrality by unlawfully enlisting men in our ports, the property captured by her on the ensuing cruise will, if brought within the territorial limits of the United States, be restored to the original owners.
The Santissima Trinidad, 7 Wheat. 283.
It is settled that if captures are made by vessels which have violated our neutrality acts, the property may be restored if brought within our territory. Hence a vessel armed and manned in one of our ports, and sailing thence to a belligerent port, with the intent thence to depart on a cruise with the crew and armament obtained here, and so departing and capturing belligerent property, violates our neutrality laws, and her prizes coming within our jurisdiction will be restored.
The Gran Para, 7 Wheat. 471.
If property captured in violation of our neutrality laws be found within our jurisdiction, in the hands of the master of the capturing vessel, it will be restored, whether a condemnation or other change of title has intervened or not.
The Arrogante Barcelones, 7 Wheat. 496.
Where a capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation neutral to them has a right to impugn, unless for the purpose of vindicating its own violated neutrality.
La Nereyda, 8 Wheat. 108.
8. EFFECT OF A COMMISSION.
An information was exhibited against the Cassius as a vessel illegally fitted out in the United States. The case came Neutrality-Illegal on to be argued on a suggestion, filed by the United Fitting Out of States district attorney under the direction of the President, that the vessel was the public property of the French Republic, and therefore not liable to seizure or forfeiture. After the argument was begun a doubt was intimated by the court as to whether the circuit court had jurisdiction in the case, or whether the jurisdiction did not belong exclusively to the district court.