by their citizens." "The laws for securing the faithful performance of the duties of neutrality had been revised and enforced; decrees of restitution had been pronounced by the judicial tribunals in all cases of Portuguese captured vessels brought within the jurisdiction of the United States; and all the measures within the competency of the Executive had been taken by that department of the Government for repressing the fitting out of privateers from United States ports, and the enlistment of citizens in them."

Mr. Adams adds, in a letter to the United States minister at Lisbon: "These measures, however, do not appear to have been altogether satisfactory to the Portuguese government, doubtless because they are not sufficiently understood by them." The Portuguese minister thought that the short and simple process would have been to seize the ships, by virtue of the executive power; but the Mr. Adams of that day thought of the rights of American citizens and the law of nations."

3

The pleadings of the United States say little or nothing in answer to the facts relating to Portugal. As to those relating to Spain, they say in a somewhat off-hand way, "What then? if we did injury to Spain we repaired it." The British Counter Case answers that the reparation consisted in setting off, in a subsequent treaty between the two nations, some unascertained claims against the serious claims for actual losses sustained by the Spanish commerce through the acts of American privateers. I agree with the United States that Spain having consented to be satisfied with this reparation, nothing more is to be said on that head. Nor do I think that matters which happened half a century ago can with any fairness be brought forward to the prejudice of the United States in answer to the present claim, not even though provocation might have been given by the assertion of American superiority so ostentatiously obtruded in the pleadings of the United States. But these instances of infractions of maritime neutrality on so large a scale are important for a very different purpose; they show the difficulty of repressing offenses of this sort; they show that the asserted superiority of the American law is an empty boast; and they entirely bear out my view as to the alleged power of the President to make up for any deficiency in the ordinary law as administered by the courts. In the long series of complaints made by the representatives of Spain and Portugal as to the thirty privateers, of the issuing of which from the ports of the United States Don Luis de Onis thus incessantly complains, or as to the twenty-six which the Chevalier de Serra mournfully enumerates as capturing Portuguese vessels, no instance, so far as I am aware, occurs in which, when the Government officials alleged that the evidence was insufficient, the President intervened, by virtue of the discretionary power said to be vested in him to arrest a vessel.

American act of

1838.

The temporary act passed by the American Congress in 1838, on the occasion of the Canadian insurrection, has been more than once referred to in the course of the present controversy.1 The circumstances under which that act was passed are stated in the proclamation of President Van Buren, of the 5th of January, 1838, in which he said that information had "just been received that, notwithstanding the proclamation of the governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the pres

1 British Appendix, vol. iii, p. 162.

Argument of the United States, p. 83.

3 British Counter Case, p. 35.

4 See Case of the United States, p. 134. Argument of the United States, p. 87.

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arms

ence of the civil officers of the United States, and munitions of war and other supplies have been procured by the (Canadian) insurgents in the United States; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms, under the command of a citizen of the United States, and that they were constantly receiving accessions and aid.”

As Congress sits from January to March, the necessary law which the circumstances called for might have been passed at once, but it was delayed till March 10, 1838, and does not appear to have been approved by the President until the 20th of April; even then, it seems either to have been inefficacious or feebly enforced, as on the 21st of November, the President issued another proclamation:

Whereas there is too much reason to believe that citizens of the United States, in disregard of the solemn warning heretofore given to them by the proclamation issued by the Executive of the General Government, and by some of the governors of the States, have combined to disturb the peace of a neighboring and friendly nation; and whereas information has been given to me, derived from official and other sources, that many citizens in different parts of the United States are associated or associating for the same purpose; and whereas disturbances have actually broken out anew in different parts of the two Canadas; and whereas a hostile invasion has been made by citizens of the United States, in conjunction with Canadians and others, who, after forcibly seizing upon the property of their peaceful neighbors, for the purpose of effecting their unlawful designs, are now in arms against the authorities of Canada, in perfect disregard of their own obligations as American citizens, and of the obligations of the Government of their country to foreign nations.

It may here be remarked, in passing, that, while open assistance was thus afforded from the United States to the Canadian insurgents, in 1838, during the whole period of the civil war, the confederates never once succeeded in directing any hostile operations of importance from Canada against the exposed American frontier; and that in October, 1864, when a few adventurers made the attack on the bank at St. Alban's, (a town near the Vermont boundary,) prompt measures were taken to prevent any such attempt being renewed from the Canadian side, and an act was passed by the Canadian Parliament when it met in February, 1865, quite as stringent in its provisions as the act of Congress of 1838.

Lopez, a Spanish adventurer, had formed a plan in 1849 for an attack on Cuba, with the object of annexing it to the United States. Expedition of LoThe idea of Cuban annexation was then in great favor with pez against Cuba. an important political party, who hoped to secure the entrance of a slave-holding State into the Union, and thus counterbalance the growing power of the Northern or free States. Lopez accordingly met with much popular support.

On the 11th August, 1849, the President of the United States issued a proclamation stating that "there was reason to believe that an armed expedition was about to be fitted out in the United States, with an intention to invade the island of Cuba or some of the provinces of Mexico," and that "the best information which the Executive had been able to obtain, pointed to the island of Cuba as the object of this expedition;" and calling upon "every officer of this Government, civil or military, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the performance of our sacred obligations to friendly powers."

On the 7th May, 1850, Lopez left New Orleans in a steamer with about five hundred men, accompanied by two other vessels, and on the 17th landed at Cardenas, a small town on the northwest side of the island, and occupied the town; but troops arriving shortly afterward

from Havana, he was compelled to re-embark, and escaped to the United States.1

2

It appears, from the appendix to the American Counter Case, that on the 25th of May orders were given for the arrest of Lopez; but the appendix is silent as to the result, which was that no delay being granted by the district judge to procure evidence against him, he was discharged amid the cheers of a large crowd.

The Spanish authorities liberated forty-two of Lopez's band, whom they had taken prisoners, and they were taken back to the United States in the United States ship Albany. A further attempt seems to have been made to bring Lopez and his followers to justice, as on the 21st of July the grand jury at New Orleans found a true bill against him and fifteen others for violating the act of 1818; but the American Government failed in making out their case, and finally abandoned the prosecution.3

On the 25th of April, 1851, the President issued another proclama tion, stating that "there was reason to believe that a military expedi tion was about to be fitted out in the United States, with intention to invade the island of Cuba," and warning all persons of the penalties they would incur by joining in it. The President concluded by "calling upon every officer of this Government, civil and military, to use all efforts in his power, to arrest for trial and punishment every such offender against the laws of the country."4

Nevertheless, in the following August, Lopez started on a fresh expedition, of which the following details are taken from the President's message to Congress of December 2, 1851 :

Lopez left New Orleans for Cuba on the 3d of August, in the steamer Pampero with four hundred men, " with evident intentions to make war upon the authorities of the island." The steamer left stealthily, and without a clearance, and, after touching at Key West, proceeded to the coast of Cuba. Lopez and his band were soon overpowered by the Spanish troops, and Lopez himself was publicly executed at Havana.

The President adds:

What gives a peculiar criminality to this invasion of Cuba is, that under the lead of Spanish subjects, and with the aid of citizens of the United States, it had its origin, with many, in motives of cupidity. Money was advanced by individuals, probably in considerable amounts, to purchase Cuban bonds, as they have been called, issued by Lopez, sold, doubtless, at a very large discount, and for the payment of which the public lands and public property of Cuba, of whatever kind, and the fiscal resources of the people and government of that island, from whatever source to be derived, were pledged, as well as the good faith of the government expected to be established. All these means of payment, it is evident, were only to be obtained by a process of bloodshed, war, and revolution. None will deny that those who set on foot military expeditions against foreign states by means like these are far more culpable than the ignorant and the necessitous whom they induce to go forth as the ostensible parties in the proceeding. These originators of the invasion of Cuba seem to have determined, with coolness and system, upon an undertaking which should disagrce their country, violate its laws, and put to hazard the lives of ill-informed and deluded men. You will consider whether further legislation be necessary to prevent the perpetration of such offenses in future.5

No such further legislation was, however, carried out; though it was not long before the need for it was again put to the test.

This time the scene of operations was on the Pacific coast, and the

1 British Appendix, vol. iii. Report of Neutrality Laws Commission, p. 34. English text, p. 666; French text, p. 389.

3 British Appendix, vol. iii.

Report of Neutrality Laws Commission, p. 34.

4 Appendix to American Counter-Case, English text, p. 705; French text, p. 120. Report of the Neutrality Commission, p. 31.

5 British Appendix, vol. iii.

Walker's expedi

leader chosen to conduct it was the well-known Walker; the plan being to gain possession of the Mexican posses- tion against Mexico sions in Lower California.

and Central America.

The attempt was made in October, 1853, by an expedition from San Francisco. The invaders seized the town of La Paz, killed seven of its defenders, and wounded others, and committed various excesses. They were re-enforced by another expedition, which sailed in the Anita from San Francisco, in December, but they were eventually driven out of the country.

This expedition seems to have given rise to a new name, that of "filibusters," which has since been used to designate those who engage in outrages of this description, having their origin in America.

Filibustering became a sort of profession; and, under the name of "transit" and "emigration" companies, schemes were next openly planned for attacking Central America.

Walker sailed for San Francisco on the 4th of May, 1855, arrived at Realejo on the 15th of June, and assumed the title of president of Nicaragua, in which capacity he was recognized by the United States representative. Having been surrounded at Rivas by the native forces in May, 1857, through the mediation of the commander of the United States ship of war Saint Mary's, he was allowed to surrender unmolested, and to be conveyed away on board that vessel with the remnant of his followers.

On returning to the United States he organized a fresh expedition, this time at New Orleans. The attention of the authorities was called to it, and a circular was issued on the 18th of September, 1857, which states that "there is reason to believe that lawless persons are now engaged within the limits of the United States, in setting on foot and preparing the means for military expeditions, to be carried on against the territories of Mexico, Nicaragua, and Costa Rica ;" after which it proceeds to call upon the district attorneys and marshals "to use all due diligence, and to avail" themselves "of all legitimate means at" their "command" to enforce the provisions of the act of 1818.

In October, Lord Napier, Her Majesty's minister at Washington, had warned the American Secretary of State that two thousand men had been enrolled, arms purchased, £250,000 subscribed, and that shipping was being hired.

On the 10th of November, Walker was arrested and was held to bail in $2,000; but on the very next day he embarked with three hundred unarmed followers from New Orleans for Mobile Bay, where he was joined by fresh recruits in another vessel, the Fashion, in which he sailed for Nicaragua. Some of his band occupied Fort Castillo. He was himself, with the others, detained by the United States Commodore Paulding in the San Juan River and taken to Aspinwall, whence he returned to the United States.1

The counsel of the United States have taken credit for their Government for this proceeding on the part of the commodore. They say, "when wrong-doers manifested obstinate persistence of wrong, the military and naval officers of character and discretion, like General Scott, Admiral Paulding, and General Meade, were employed to apply to such persons the only method of prevention applicable to the case, namely, force, to maintain the domestic order and foreign peace of the Government."

As a matter of fact, however, the proceedings of the commodore were at the time justly censured as having been in excess of his authority.

1 American Counter Case, Appendix, p. 614.

The President, in his message to Congress of the 7th of January, 1858,1 uses this language:

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In capturing General Walker and his command after they had landed on the soil of Nicaragua, Commodore Paulding has, in my opinion, committed a grave error. The error of this gallant officer consists in exceeding his instructions and landing his sailors and marines in Nicaragua, whether with or without her consent, for the purpose of making war upon any military force whatever which he might find in the country, no matter from whence they came. Under these circumstances, when Marshal Rynders presented himself at the State Department on the 29th ultimo with General Walker in custody, the Secretary informed him "that the Executive Department of the Government did not recognize General Walker as a prisoner; that it had no directions to give concerning him, and that it is only through the action of the judiciary that he could be lawfully held in custody to answer any charges that might be brought against him."

The protest of the Nicaraguan and Costa Rican governments will be found in the correspondence presented to Parliament respecting Central America, together with a description by Lord Napier of the grievous injury inflicted by the filibusters upon those countries. General Cass replied, on behalf of the United States Government—

That unlawful warlike enterprises have been carried on from the United States, composed of persons from different countries, against the territory of Nicaragua, is not to be denied. But during the whole progress of these illegal efforts the Government of this country has faithfully performed the duty imposed upon it by the laws, as well through public proclamations against such enterprises as by giving the necessary directions to the proper officers to prevent their organization and departure, as by invoking the action of the judicial tribunals, and also by the employment of its naval force. He, at the same time, "denied that a fresh invasion was preparing." This was on the 25th of July. In October President Buchanan found it necessary to issue a proclamation, containing the following passages, which show that General Cass' information was far from correct, or that the Government officials, from whose reports he had gained it, must have been singularly blind to what was taking place:

Whereas information has reached me, from sources which I cannot disregard, that certain persons, in violation of the neutrality laws of the United States, are making a third attempt to set on foot a military expedition within their territory against Nicaragua, a foreign state, with which they are at peace. In order to raise money for equipping and maintaining this expedition, persons connected therewith, as I have reason to believe, have issued and sold bonds and other contracts pledging the public lands of Nicaragua and the transit route through its territory as a security for their redemption and fulfillment.

The hostile design of this expedition is rendered manifest by the fact that these bonds and contracts can be of no possible value to their holders unless the present government of Nicaragua shall be overthrown by force.

The leaders of former illegal expeditions of the same character have openly expressed their intention to renew hostilities against Nicaragua. One of them, who has already been twice expelled from Nicaragua, has invited, through the public newspapers, American citizens to emigrate to that republic, and has designated Mobile as the place of rendezvous and departure, and San Juan del Norte as the port to which they are bound. This person, who has announced his allegiance to the United States, and claims to be president of Nicaragua, has given notice to the collector of the port of Mobile that two or three hundred of these emigrants will be prepared to embark from that port about the middle of November.

An

Two months afterward, in December, 1858, Walker's filibusters actually embarked at Mobile in the sailing-schooner Susan, without a clearance, on the pretense of being bound on a coasting voyage. unsuccessful attempt was made by the revenue-cutter to stop them, but was resisted, and the Susan was joined unmolested by the Fashion and the Washington with military stores.

The expedition afterward broke down from the Susan being wrecked. Walker and his band then proceeded, in March, 1859, to California, whence they were said to have intended to make a descent on Punta

American Counter Case, Appendix, p. 612.