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or measures within the American territory, or upon American vessels, in hostility to other nations, and which may compromise our peace with them. It would be most deplorable if no such controlling power existed in this government, and if men might be allowed, under the influence of evil, or even good motives, to set on foot warlike enterprises from our shores against nations at peace with us, and thus, for private objects, sordid or criminal in themselves, or under the impulse of fanaticism or wild delusions, bring upon this eountry, at their own discretion, the calamities of war.
“ The will of the nation is expressed in this respect by the statute of April, 1818. It attempts to guard against the infraction of the peace and rights of friendly powers by our own people, or by acts done within our territory, by inhibiting therein all proceedings of a warlike purpose or tendency against any foreign government or people with whom the United States are at peace.”
“It must be manifest to you, gentlemen, that those criminal designs, if undertaken, will be managed with much disguise and caution. It is not probable that soldiers will be openly enlisted, or officers commissioned, or vessels freighted to transport munitions of war or men to the field of action. Pretences and coloring will be employed to mask the real object the parties to such criminal proceedings contemplate. But if you discover the purpose really to be to supply the means of hostile aggressions against Cuba, then all persons connected with it and promoting it will be answerable for the violation of the laws of the United States in the undertaking, the same as if their proceedings had been openly and avowedly intended for a hostile invasion and waging war on that community."
These remarks of your Honor warrant the language used by Mr. Adams to Lord Russell, February 13, 1862, when he said that the United States Neutrality Act of 1818 was “ of very sufficient vigor.”
Fortunately for the honor and good faith of the people of the United States, there are few reported cases of offences against the third section of the Neutrality Act of 1818. A few, however, have reached the Supreme Federal Court, touching incidental branches of the question involved in the case now at bar. Most of them came before the Court on an application, by the claimants of property captured as prize, and brought into the United States, to decree its restitution upon the ground that the capturing vessels were fitted out, in the ports of the United States, in violation of the neutrality laws. These cases are : United States v. Quincy, 6 Pet. 445, to which I have had the pleasure of calling the attention of the Court; The Gran Para, 7 Wheat. 471; United States
Guinet, 2 Dal. 328; and Moodie v. The Alfred, 3 Dal. 307.
In the case of the Santissima Trinidad (7 Wheat. p. 283) the Independencia was loaded with a cargo of munitions of war, and
being armed with twelve guns, was dispatched from the port of Baltimore, on a voyage ostensibly to the north-west coast, but in reality to Buenos Ayres, with written instructions to the supercargo, authorizing him to sell the vessel to the government of Buenos Ayres, which was then at war with Spain, provided he could obtain a suitable price. She duly arrived at Buenos Ayres, was sold to the government of Buenos Ayres, and soon afterwards assumed the flag and character of a public ship. Upon this state of facts, the question came up in the Supreme Court of the United States as to the original illegal armament and outfit of the Independencia. Mr. Justice Story, in delivering the opinion of the Court, said:
“ It is apparent, though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as a good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our law, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.”
It will be seen, on close examination of the case of the Santissima Trinidad and the Independencia, that there is nothing in it, or in the opinion of the Court by Mr. Justice Story, which contravenes or modifies the doctrine which I have the honor to submit in respect of the liability of the Meteor, by reason of certain persons having been concerned in fitting her out with intent that she should cruise, or commit hostilities in the interest of Chile against Spain. The case of the Meteor is, in this respect, entirely different from that of the Independencia. In the latter it was purely a prize transaction ; at least, so it was considered by the Court. But it would have been very different if the Consul of Buenos Ayres and a confidential agent of Buenos Ayres, with the agents of both, had been in Baltimore in 1816, and concerned in fitting out the Independencia within the United States, to commit hostilities against Spain. There is nothing therefore, I repeat, in the case of the Santissima Trinidad to disturb the position that persons in the United States are forbidden, by the act of 1818, to be concerned in the fitting out or furnishing of ships to one belligerent, to cruise against another belligerent with whom the United States are at peace.
It is with great hesitation that I venture the suggestion that if such a case were now to come before the Supreme Court of the United States, some of the doctrines laid down so broadly in the Santissima Trinidad would very likely be modified; because it is impossible that an honest neutrality requires prohibition of foreign enlistments, and at the same time permits the sale of armed vessels, and the delivery of the same to a belligerent government. It is clear that in both cases, there is an interposing in the affairs of the belligerents, inconsistent with the abstinence, if not with the impartiality, which is essential to the character of a neutral. In the completest, if not the only complete, treatise of the law of nations which Great Britain has produced, the learned work of Dr. Phillimore, there is comment upon the case of the Santissima Trinidad, in which the learned author (volume iii., p. 323) says: “ The authority of Story is, and always will be, of the greatest weight; and it is not without sincere diffidence in his own opinion, though with a profound conviction of the inconsistency of the position laid down by this very learned judge, with the general prin. ciples of neutrality, that the writer of these pages ventures to express his dissent from them."
If the Supreme Court maintains the broad dictum of the Santissima Trinidad, after the late positive utterances of the Department of State on that very point, there will be a conflict of opinion between the executive and judicial departments of the government, on a matter of international law, not at all creditable to the United States, which, since its peremptory demand on England for indemnity for losses occasioned by Anglo-rebel cruisers, cannot well change its attitude.
It is quite possible that the popular excitement of the hour had something to do in inspiring the dictum by Mr. Justice Story; for, at that time, judicial not less than public opinion had naturally fallen into the habit of exaggerating neutral rights, and underestimating neutral obligations. Hereafter it will not be strange if meditation on the exigencies of our recent experience teaches us that belligerency has its domain of right as well as neutrality.
But whether the dictum of the Santissima Trinidad shall, in the future, be or be not modified by the Supreme Court of the United States, it is very clear nothing laid down there controls the case now at bar, provided your Honor is satisfied that certain persons were concerned in fitting out the Meteor with intent that she be used in the interest of Chile and in hostility against the subjects or property of Spain. The policy of the United States is peace with Spain and Chile, and it cannot be that a few individuals in Boston or elsewhere, confederating with the Chilian agents in New York, shall be permitted to endanger the peace of the United States, and it may be in the end devolve upon the shoulders of unwilling and protesting fellow-citizens the burden of foreign complications, by fitting out vessels like the Meteor.
In the case of the Gran Para, 7 Wheat., 471, the libel alleged that a large sum of money in coin, had been, in 1818, taken out of the Portuguese ship Gran Para, then bound on a voyage from Rio Janeiro to Lisbon, by a private armed vessel called the Irresistible, which had been fitted out in the United States, in violation of the Neutrality Act; that the money was then deposited in a bank in Baltimore; and praying that the same might be restored to the original Portuguese owners. A claim was filed in behalf of Daniels, master and owner of the Irresistible, stating that he was a citizen of the Oriental Republic, which was at war with Portugal; that he was cruising under the flag and commission of that republic at the time the capture was made, and insisting on his title to the money as lawful prize of war. By the proofs, taken in the case, it appeared that the capturing vessel was built in the port of Baltimore in 1817, and was, in all respects, constructed for purposes of war. After being launched, she was, February 16th, 1818, purchased by the claimant, then a citizen of the United States. The vessel then cleared for Teneriffe, having in her hold twelve eighteen pound grenades, with their carriages, a number of small arms, and a quantity of ammunition, entered outward as cargo. The vessel proceeded directly for Buenos Ayres, discharged her crew there, obtained a commission from the government of the Oriental Republic to cruise against Spain, and there re-enlisted substantially the same crew, and sailed in June, 1818, on a cruise against Spain, under the command of the claimant. In September, 1818, the Irresistible returned to Baltimore with the money in question.
Chief Justice Marshall, in giving the opinion of the Court, rehearsed the before-mentioned facts ; declared the only question to be, whether the Irresistible was originally fitted out in Baltimore, in violation of the Neutrality Act of 1818; and added : “ There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted for purposes of war. .
“ The third section makes it penal for any person, within any of the waters of the United States, to be “knowingly 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, to cruise,' &c.
“ It is too clear for controversy that the Irresistible comes within this section of the law also.”
It is not easy to see how this positive decision by Chief Justice Marshall, in the Gran Para, can be reconciled with the previous dictum by Mr. Justice Story in the Santissima Trinidad. In fact, the two cannot stand together.
An opening statement, no matter how brief, of the questions of law, involved in the case at bar, would be extremely imperfect, if no reference were made to the celebrated case of the Alexandra, a steamer seized at Liverpool by the English government, April 5th, 1863, upon the charge that she was equipped, furnished, and fitted out, to be employed against the United States, in the service of the Confederate States of America. This case was brought to trial, June 22d, 1863, on an information filed by the Attorney General of Great Britain, before the Lord Chief Baron of the Court of Exchequer, and a special jury. The information, based on the seventh section of the Foreign Enlistment Act of 59 Geo. III. c. 69, contained ninety-eight counts, and under the ruling of the Chief Baron, the jury returned a verdict for the claimants.
It is not needed to remind your Honor that the Foreign Enlistment bill of Great Britain was introduced by the Attorney General into the House of Commons in the month of May, 1819, a little more than one year after the approval by the President of the United States of the Neutrality Act now under consideration. The great opponent of the measure in Parliament was Sir James Mackintosh, upon the ground that it was calculated to injure the Spanish-American colonists, in the war for independence which was then being waged between them and the mother country. The measure, however, found a splendid and powerful advocate in Mr. Canning, under whose inspiration it became law; and it was the precedent set by the United States, which so reinforced his own appeals, as to give to the proposed legislation the force of a positive statute.