Such an order was consequently issued, and the prohi- Chap. III. bition of exporting arms and ammunition to Spain was removed. By this measure the British government offered a guaranty of their bonâ fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain; but it would have been a prohibition of words only, and not at all in fact; for the immediate vicinity of the Belgic ports to France would have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the Act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an Order in Council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain; and would occasion an inequality of operation in favour of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of prohibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the presidency of Washington, and the secretaryship of Jefferson: and such was more recently the conduct of the American legislature in revising their neutrality statutes in 1818, when the congress extended the provisions of the Act of 1794 to the case of such unacknowledged States as the South American colonies of Spain, which had not been provided for in the original law (2). $439a. The duties of neutral States as regards their supplying belligerents Neutrality with ships and munitions of war have been brought into such promi- laws. nence, and have been so thoroughly discussed in recent times, that it becomes necessary to enter more fully into the subject than Mr. Wheaton has done. (2) Annual Register, vol. lxi. p. 71. Canning's Speeches, vol. iv. p. 150; vol. v. p. 34. Part IV. The United § 439b. American cases. U. S. v. Guinet (Les Jumeaux). America has the credit of being the first country that by positive legislation sought to restrain its subjects within the strict limits of neutrality. It has been already shown (a) that, in 1793, France demanded from the United States certain exclusive privileges under the treaties of 1778, with respect to her privateers and ships of war, which the latter deemed inconsistent with the law of nations, and not warranted by the terms of the treaties. America was determined to remain neutral, and on the 22nd April, 1793, a Proclamation of Neutrality was issued, warning American citizens carefully to avoid all acts and proceedings which might tend to contravene the neutral disposition of their country. Any citizen who committed a breach of the law of nations would not be protected by his government (b). In spite of this a French agent, M. Guinet, landed at Charleston in April, commenced organizing a system of privateering, and endeavoured in various ways to stir up the inhabitants of the States to assist France (c). A French Prize Court was established at Charleston, and an English vessel, The Grange, was seized in the Delaware river. The British Minister in America, Mr. Hammond, remonstrated against these violations of neutrality, and on the 5th of June received an answer from Mr. Jefferson, admitting the justice of his remonstrance, and stating that measures would be taken to prevent such occurrences happening again (d). A collection of rules, declaring the original equipping and arming of vessels in the United States, by either belligerent for warlike purposes, to be unlawful, was drawn up, and issued to the collectors of customs. Violations of neutrality, however, continued. In October a French Vice-Consul at Boston, M. Duplaine, obtained the rescue by force of a vessel detained by the Marshal. The United States withdrew his exequatur, but the grand jury of Philadelphia refused to find a true bill against him (e). It was therefore deemed necessary to legislate on the subject, and accordingly the Act of the 5th of June, 1794, was passed (f). This Act was substantially the same as the one afterwards passed in 1818, and the latter, notwithstanding all that has since happened, still remains the law of America (g). The latter Act is set out in full in the Appendix. It will, however, be necessary to notice some of the leading American decisions on both the Acts, and on the general subject. A prosecution for being concerned in fitting out and arming a privateer, was set on foot soon after the passing of the Act of 1794. Les Jumeaux was originally a British ship employed on the coast of Guinea. She entered Philadelphia in 1794 with a cargo of sugar and coffee, and at that time was owned entirely by French subjects. Originally she (a) See ante, § 425. (b) American State Papers, vol. i. p. 18. (d) Jefferson's Works, vol. iii. p. 571. (e) Rep. Neutrality Comm. 1868, p. 23. (f) United States Statutes at Large, Third Cong. Sess. I. ch. 50. (9) United States Revised Statutes, tit. Neutrality. See Appendix C. had ten portholes on each side, but only four altogether were open Chap. III. when she entered Philadelphia. While there her owners caused her to be repaired, re-opened her twenty ports, and fitted her up as a ship of war. Orders were given by the United States' authorities that she should be dismantled of her extra armaments and reduced to the condition she was in when she first came. She thus quitted Philadelphia in her original condition, but lower down the river took on board some guns and a number of men. A pilot boat also attempted to convey some more war material to her, but was stopped by the local authorities. A militia force was then sent in pursuit of Les Jumeaux, but she avoided detention, partly by artifice and partly by threatening an armed resistance. One Guinet, who had been chiefly concerned in fitting her out, was then indicted for a breach of section 3 of the Act. The Judge ruled that the third section was meant to include all cases of vessels armed in American ports by one of the belligerent powers, to cruise against another belligerent power at peace with the United States. Converting a ship from her original destination with intent to commit hostilities; or, in other words, converting a merchant ship into a vessel of war, must be deemed an original outfit; for the Act would, otherwise, become nugatory and inoperative. It is the conversion from the peaceable use to the warlike purpose that constitutes the offence. Guinet was found guilty (h). § 439c. Courts in Jansen. The claim of France to set up Courts of Prize in the United States was discussed in The Betsy (i), a vessel captured by a French privateer and sent into Baltimore for adjudication. The Supreme Court held that no foreign power could rightfully erect any Court of Judicature Talbot v. within the United States unless by force of a treaty, and that no foreign consul could adjudicate upon a prize. In 1795, one Ballard, a Virginian, obtained the assignment of a power to command a certain ship, given by the French Admiral in the United States, and authenticated by the French consul at Charleston. This ship, L'ami de la Liberté, was American owned, and was armed and equipped in the United States. Ballard renounced his Virginian citizenship, but was not naturalized elsewhere. He took command of L'ami de la Liberté, and sailing under the French flag, captured a Dutch brig The Magdalena, and brought her to Charleston for adjudication. The Court held that he was still an American citizen, and that the authority under which he sailed was invalid; that the capture of a vessel of a country at peace with the United States, made by a vessel fitted out in one of their ports, and commanded by one of their citizens, was illegal, and that if the captured vessel was brought within American jurisdiction, the District Courts, upon a libel for tortious seizure, might inquire into the facts, and decree restitution. Accordingly the ship was restored with damages (k). On the other hand, where a prize was made by a The Alfred. vessel which had left the United States with equipments partially (h) U. S. v. Guinet, 2 Dallas, 328. (i) 1 Curtis, 74. S. C., 3 Dallas, 6. (k) Talbot v. Jansen, The Magdalena, 1 Curtis, 128. S. C., 3 Dallas, 133. Part IV. adapted for war, but which were such as were frequently carried by § 439d. Captures made without violation of neutrality. § 439e. What amounts to a violation of neutrality. merchantmen, and where her full equipment had been completed in French territory, the Court declined to restore the prize. It was held to be no violation of neutrality to sell such a ship to a foreigner (1). The Court also refused to restore a prize captured by a French privateer, which had been simply repaired in an American port, and had not augmented her force there (m). But where a French privateer secretly increased her crew at New Orleans by taking on board several Americans, and then captured The Alerta, a Spanish brig, and sent her to New Orleans as a port of necessity, the Court restored the prize to her owner (n). Whenever it was proved that a capture was made jure belli on the high seas, by a duly commissioned vessel of war which had in no way violated American neutrality, the Courts refused to interpose. “It is no part of the duty of a neutral nation," said Chief Justice Story, "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. The captors are amenable to their own government exclusively for any excess or irregularity in their proceedings" (o). This also was held to extend to the acts of privateers done under their war powers (p). Nor would the title by which a foreign sovereign owned a ship of war be inquired into (q). But it was firmly settled that if captures were made in violation of American neutrality, the property might be restored (even if there had been no Foreign Enlistment Act) if brought within the territory of the Union (r). Even after a regular condemnation in a Prize Court of the captor's country, the Court restored the prize, because she was still owned and controlled by the original wrong-doer (s). In order that a violation of neutrality should be committed, two elements were deemed necessary. In the first place the ship must have been wholly or in part equipped or manned, or she must have augmented her force within the jurisdiction of the United States. In the second place she must have been so equipped or manned with the intent that she should cruise against the commerce of a State at peace with the United States. Unless both the fact and the intent existed together, there was no offence against the law. The simple fact of an armed vessel having been equipped in, and sent from the United States to a belligerent did not, of itself, necessarily constitute a breach (1) Moodie v. The Alfred, 1 Curtis, 234. S. C., 3 Dallas, 307. (m) Moodie v. The Phabe Ann, 1 Curtis, 237. S. C., 3 Dallas, 319. (n) The Alerta & Cargo v. Blas, 3 Curtis, 379. (0) La Amistad de Rues, 5 Wheaton, 385. (p) The Invincible, 1 Wheaton, 238. (4) The Exchange, 7 Cranch, 116. See ante, § 96 et seq. (r) The Grand Para, 7 Wheaton, 471; 5 Curtis, 302; La Concepcion, 6 Wheaton, 235; The Bello Corrunes, 6 Wheaton, 152; The Estrella, 4 Wheaton, 298. (8) The Arrogante Barcelones, 7 Wheaton, 496; The Nereyda, 8 Wheaton, 108. U. S. v. of the Act, or of the law of nations (t). Thus, if a ship of war was Chap. III. built and fitted out in America, and was then bond fide sold, purely as a commercial speculation to a belligerent, there would be no intent that she should cruise against friendly commerce, and thus no breach of neutrality would be committed. Ships of war and arms are articles of commerce, and neutrals are entitled to continue their ordinary commerce with belligerents, subject to the risk of their goods being captured if they are contraband. No State prohibits its subjects from trading in contraband. It only leaves such goods to their fate, if either belligerent captures them on the way to the other. In 1828, The Bolivar, a vessel of 70 tons, sailed from Baltimore for St. Thomas, under the command of one Quincey, and with Armstrong, her owner, on board. At St. Thomas, Armstrong fitted her out as a privateer to cruise under the Buenos Ayres flag against Brazil. Quincey continued to command her and made some prizes. He then returned to America, and was prosecuted for being concerned in fitting out The Bolivar. The Court held it to be not necessary, in order to convict Quincey, that the jury should find that The Bolivar was armed, or in a condition to commit hostilities during the voyage from Baltimore to St. Thomas. But if the jury believed that the owner and equipper went to St. Thomas in search of funds, and without a present intention of employing her as a privateer, or even if they wished so to employ her, but the fulfilment of their wish depended on their being able to procure funds at St. Thomas for her equipment, the defendant Quincey was not guilty. "The offence," said the Court, "consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the Act, must be made. within the limits of the United States, and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States. And this must be a fixed intention, not conditional or contingent, depending on some future arrangements. . . . The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owner to give security that such vessels should not be employed by them to commit hostilities against foreign powers at peace with the United States (u). The American Act declares that "if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed," any vessel to cruise against the commerce of a friendly State, he shall be guilty of a misdemeanour. In 1866, The Meteor, a vessel alleged to be for the Chilian service in the war between Chili and Spain, was libelled in the District Court. She had been originally built for the Federal government, but the civil war having ended, she was sold instead to Chili. (t) The Santissima Trinidad, 7 Wheaton, 283. (u) U. S. v. Quincey, 6 Peters, 445; 10 Curtis, 189. Rep. Neut. Comm. § 439f. Whether fitting out and arming are necessary to constitute the offence. |