"By the return of peace, the claimant became rehabilitated with the capacity to sustain a suit in the courts of this country; and the argument is, that a capture made in a neutral territory is void; and, therefore, the title by capture being invalid, the British owner has a right to restitution. The difficulty of this argument rests in the incorrectness of the premises. A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever, and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrine rests on well established principles of public law.

"There is one other point in the case which, if all other difficulties were removed, would be decisive against the claimant. It is a fact, that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self-defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign.

"The conclusion from all these views of the case is, that the ship and cargo ought to be condemned as good prize of war." 1

1 In the case of the Lilla, 2 Sprague, 177, it is said that, "it is undoubtedly true that no private person can rest a claim for the restoration of prize in the courts of the captor on the ground that the capture was made in neutral waters, and that the neutral nation whose rights have been infringed alone can interpose." See also, The Sir William Peel, 5 Wall., 517; The Adela, Wall., 266.

In the case of the British ship Grange, captured in Delaware Bay by a French privateer (1793), it was held by Attorney-General Randolph (1 Op. Att-Gen., 15,) that if the captured ship was brought within the jurisdiction of the United States, it was their duty as neutrals to restore her to the owners. To the same effect, see La Estrella, 4 Wheaton, 298.

SECTION 41.-EQUIPMENT OF VESSELS OF WAR IN NEUtral Ter

RITORY.

UNITED STATES NEUTRALITY ACTS OF 1794 AND 1818.

(U. S. Statutes at Large, I., 381, and Revised Stat., § 5289.)

Act of June 5, 1794:

SECTION 3." If any person shall within any of the ports, harbors, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state [or of any colony, district or people], to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state [or of any colony, district or people], with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid, every such person so offending shall, upon conviction, be adjudged guilty of a high misdemeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be imposed shall in no case be more than five thousand [ten thousand by the act of 1818] dollars, and the term of imprisonment shall not exceed three years, and every such ship or vessel with her tackle, apparel and furniture together with all materials, arms, ammunition and stores which may have been procured for the building and equipment thereof shall be forfeited, one-half to the use of any person who shall give information of the offence, and the other half to the use of the United States.

SECTION 7.-By this section the President is authorized to employ the land and naval forces or militia to execute the law.

On account of the complaints of Spain and Portugal (1815-17), of infractions of neutrality on the part of citizens of the United States in the war which those states were then waging with their revolted South American colonies, President Madison sent a special message on the subject to Congress, and the result was the more stringent act of April 20, 1818. From a suggestion of the Spanish Minister,

that the South American provinces in revolt, and not recognized as independent, might not be included in the word "State," the words "colony, district, or people," were added, as given in brackets above. The new clauses of the act of 1818 of chief importance are those authorizing the detention of vessels on suspicion, and requiring the owners to give bonds on clearance.

Act of 1818 (Revised Statutes, § 5289):

SECTION 10.-"The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of vessel and cargo on board, including armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace."

SECTION 11.-"The several collectors of customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arms and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended. to be employed by the owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince, etc., with whom the United States are at peace, until the decision of the President is had thereon, or until the owner gives such bond and security. as is required of the owners of armed vessels by the preceding section."

BRITISH FOREIGN ENLISTMENT ACTS, OF 1819 AND 1870.

(59 Geo. III., c. 69, and 33 and 34 Vict., 90.)

Act of July 3, 1819.-SECTION 7.

"If any person, within any part of the United Kingdom, or in any part of His Majesty's dominions beyond the seas, shall, without the leave and license of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent, or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate,

.or of any foreign colony, province, or part of any province, or people; or if any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or store-ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign. colony, province, or part of any province or country, with whom His Majesty shall not then be at war; or shall, within the United Kingdom, or any of His Majesty's dominions, or in any settlement, colony, territory, island, or place belonging or subject to His Majesty, issue or deliver any commission for a ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the court in which such offender shall be convicted; and every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores, which may belong to or be on board of any such ship or vessel, shall be forfeited, and it shall be lawful for any officer of His Majesty's customs or excise, or any officer of His Majesty's navy, who is by law empowered to make seizures, for any forfeiture incurred under any of the laws of customs, or excise, or the laws of trade and navigation, to seize such ships and vessels aforesaid, and in such places and in such manner in which the officers of His Majesty's customs or excise, and the officers of His Majesty's navy are empowered respectively to make seizures under the laws of customs and excise, or under the laws of trade and navigation; and that every such ship and vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of such ship, or vessel, may be prosecuted and condemned in the like manner, and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation.

Section 8 imposes penalties for the augmentation of force in British ports.

The defect in this act was in the procedure under it rather than in the intention of the act itself. The evidence required in order to arrest or detain a vessel must be sufficient to satisfy a jury of the probable breach of the provisions of the act; and such evidence

CASSIUS OR

may be difficult to obtain. The local officers were wary of taking action for which they might be held liable in damages. The act of 1870 removed this defect of procedure, as well as any ambiguity there might be in the act itself. The question of the breach of the act is not to be determined by the mere "intent" of the builder. Act of 1870:

SECTION 8." If any person within Her Majesty's dominions, etc., (1) Builds or agrees to build, or causes to be built, any ship with intent or knowledge or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State at war with any friendly State; or

"(2) Issues or delivers any commission for any ship with intent or knowledge, etc.; or

"(3) Equips any ships with intent or knowledge, etc.; or

"(4) Despatches, or causes or allows to be despatched, any ship with intent or knowledge, etc.

"Such persons shall be deemed to have committed an offence against this Act, etc."

Section 23 empowers the Secretary of State on "reasonable and probable cause for believing" that a ship is being built contrary to this Act, to issue a warrant to seize and search such ship and to detain the same until it has been either condemned or released by process of law, or in manner hereinafter mentioned.

Section 24 provides that "where it is represented to any local authority" that there is reasonable and probable cause for believing that a ship has been or is being built, commissioned or equipped contrary to this Act, it shall be the duty of such local authority to detain such ship, and forthwith to communicate the fact of such detention to the Secretary of State or chief executive authority, who may then issue a warrant for detention, or release the vessel.

THE CASSIUS" OR "LES JUMEAUX.”

1794-1796.

(3 Dallas, 121; Wharton's State Trials, 93.)

The questions in respect to this vessel are discussed in the cases of United States v. Guinet, Wharton's State Trials, 93; United States v. Peters, 3 Dallas, 121; and Ketland v. The Cassius, 2 Dallas, 365.

This was the first case under the neutrality act of 1794. Originally a British cutter, this vessel came into the hands of French owners,