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tions, instituted in the United States courts against the Fenians to be discontinued, if compatible with the public interests."

In pursuance of the second of these resolutions, the Attorney-General instructed the district attorney at Buffalo to abandon the Fenian prosecutions there, and they were abandoned accordingly.

The prosecution was also withdrawn in the cases of Sweeney, Spear, McMahon, and the other leaders of the Vermont-frontier demonstration, who had been arrested, but released on bonds of $5,000 after a day's detention; and the intended indictment of Roberts was dropped as a matter of course.

In October the Government decided to return some of the arms which had been taken from the Fenians.1

A bond was on this occasion taken from the editor of the "Buffalo Fenian Volunteer" and another Fenian sympathizer, that the arms should not be used in violation of the neutrality laws.

The remainder of the arms taken at Buffalo and Ogdensburgh were returned in the following year.

During 1867 the Fenians were occupied in promoting disturbances and outrages in England and Ireland.

In 1868 they obtained from the United States governor the return of thirteen hundred muskets seized at Saint Albans. In November, 1868, the Fenian leader O'Neill marched in review through Philadelphia, with three regiments in Fenian uniform, numbering, as reported, three thousand men.

Nothing, however, happened till 1870, when the second Fenian raid upon Canada took place from Saint Albans and Malone. Repulsed at both places the Fenians sought refuge, as usual, across the frontier.

Several of the leaders were arrested and a quantity of arms taken possession of by the United States authorities. Altogether thirteen tons of arms are said to have been seized at the two raids, and conveyed to United States arsenals; besides these a field-piece and numbers of rifles were abandoned on the scenes of action. On the 12th of July the trials of the Malone raiders took place; two were condemned to two years' imprisonment and a fine of $10, and one to one year's imprisonment and a similar fine. On the 29th of July the Saint Albans raiders were tried : O'Neill was sentenced to two years' imprisonment and a fine of $10; another of the leaders to nine months' imprisonment and a fine of $5; and another to six months' imprisonment and a fine of $1. The proceedings against two others were postponed. On the 12th of October. O'Neill and his companions received an unconditional pardon from the President.

On the day on which the pardon was granted the President published a proclamation, warning evil-disposed persons that the law forbidding hostile expeditions against friendly states would for the future be rigor ously enforced :

Whereas divers evil-disposed persons have, at sundry times, within the territory or jurisdiction of the United States begun, or set on foot, or provided, or prepared the means for military expeditions, or enterprises to be carried on thence, against the territories or dominions of powers with whom the United States are at peace, by organiz ing bodies, pretending to have powers of government over portions of the territories, or dominions, of powers with whom the United States are at peace, or by being, or assuming to be, members of such bodies; by levying or collecting money for the purpose, or for the alleged purpose, of using the same in carrying on military enterprises against such territories or dominions; by enlisting or organizing armed forces to be used against such powers, and by fitting out, equipping, and arming vessels to transport such organized armed forces to be employed in hostilities against such powers. And whereas it is alleged, and there is reason to apprehend, that such evil-disposed persons have also, at sundry times, within the territory and jurisdiction of the United States, violated the law thereof by accepting and exercising commissions to serve by land or by sea against powers with whom the United States are at peace, by enlisting

1 British Counter Case, p. 43.

themselves or other persons to carry on war against such powers; by fitting out and arming vessels with intent that the same shall be employed to cruise or commit hostilities against such powers, or by delivering commissions within the territory or jurisdiction of the United States for such vessels, to the intent that they might be employed as aforesaid, &c.

On the 5th of October last, less than a year after his release, and after this proclamation, O'Neill led a third raid against Canada on the Pembina frontier, but was arrested by the United States troops, and this time met with entire immunity, being discharged on the ground that there was no evidence of his having committed any overt act within the United States territory.1

As stated in the British Counter Case, the proclamation of October, 1870, referred not only to the Fenians, but to expeditions in aid of the existing Cuban insurrection, some of which are mentioned.

Expeditions in aid ofte Cuban m-ur

The correspondence between the Spanish minister at Washington and the United States Government on the subject of these expeditions against Cuba is, in parts, so applicable to the present question, that I cannot refrain from quoting some passages.

Mr. Lopez Roberts writes thus to Mr. Fish on the 18th of September, 1869:3

Certain malcontent Cubans have established themselves in the United States, especially in New York, and these are endeavoring, by every means in their power, not to conquer their independence by their own efforts, but to gain at present the sympathies of the American people, in order afterward to seek the aid of this Government for their cause. The history of what has taken place in the last few months is the clearest proof of this. In a state of peace, it has been seen with astonishment that associations were publicly organized in many ports belonging to a friendly nation, said associations being composed of the agents of the insurgents, with no other object than that of directing their attacks against Spain. Enlistments of men have also taken place during whole weeks, as if the object were to form expeditions authorized by law, and consequently with the consent of the authorities. These emissaries have carried their spirit of speculation so far as to take advantage of the good faith of emigrants from Europe, sending them to fight in Cuba, under command of the so-called General Jordan, and other officers, who fought on the side of the South in the civil war. Hostile demonstrations have likewise been suffered to take place against a nation which, in 1861, had not even allowed (in order not to wound the susceptibility of the United States) the title of belligerents to be given to an insurgent population numbering 6,000,000 or 7,000,000 of whites, who occupied a third of the territory of the republic, and were in possession of such resources that they were only conquered by prodigies of valor, military talent, and heroic perseverance; and, after having seen the departure of various filibustering expeditions in broad daylight, and unmolested, from New York and other Federal ports, the minister of Spain finally found himself obliged, by the incomprehensible apathy of the authorities, to take the initiative in order to prevent these repeated infractions of the neutrality laws.

To this Mr. Fish replies as follows, on the 13th October, 1869:3

This Government allows freedom of speech and of action to all, citizens or strangers, restricted only to the observance of the rights of others and of the public peace. The Constitution of the United States secures to the people the right peacefully to assemble, and also to keep and bear arms; it secures them in their persons against unreasonable search and seizure, and provides that no warrant shall issue but upon probable cause, supported by oath or affirmation, and that no person shall be deprived of life, liberty, or property without due process of law.

If certain malcontent Cubans (subjects of Spain) have misconstrued and abused the privileges thus accorded by a liberal Government, the undersigned need not remind Mr. Roberts what the occurrences, daily reported from across the ocean, are showing, that governments cannot always restrain their malcontent subjects or residents. Laws will be broken at times; and happy is that form of government that can con

British Counter Case, p. 45.

Papers relating to Cuban affairs, presented to the House of Representatives, Febrnary 21, 1870, p. 131.

Papers relating to Cuban affairs, p. 138.

trol the tendency of evil minds, and restrain, by its peaceful agencies, the violence of evil passions.

The undersigned is forced to admit with regret, that an unlawful expedition did succeed in escaping from the United States and landing on the shores of Cuba. It escaped from the United States without having attracted any notice or suspicion on the part of the Government, or its officers or agents, and, as the undersigned believes. without any suspicion on the part of the agents of the Spanish government. Previous to its departure, Mr. Roberts had been frequently informed that this Government would act upon any information or suggestion which it could obtain through its own agents, or that might be furnished by the Spanish authorities or their agents.

On the 17th of December, 1870, Mr. Roberts writes to Mr. Fish to complain of the conduct of the United States authorities in permitting the departure from New York of the Hornet, a notorious vessel, which, as would appear from the British Counter Case,' has since succeeded in landing an expedition in Cuba. This vessel, formerly a dispatch-boat in the United States Navy, was sold, in June, 1869, by the Navy Department to a certain Señor Macias. She was seized on her departure from Philadelphia, but released, and proceeded to Halifax, where she was again detained by the British authorities, but discharged, as no arms were found on board. Leaving Halifax she sailed along the United States coast, taking on board, at different points, cannon, small-arms, ammunition, and men, and put into Wilmington. Here she was agam seized, and a prosecution was instituted against some of the officers These proceedings seem to have terminated ineffectively, and the vessel was eventually released, upon bonds being given that she would not be used in violation of the neutrality laws. From Wilmington she proceeded to New York, where she was once more seized, and again released.

Mr. Roberts incloses in his note a letter addressed by the Spanish consul at New York to the United States district attorney, in which, after recapitulating the above facts, the consul goes on:

I have now information on which I rely with perfect confidence, that this steamer, in the hands of said Macias and his agents, is being fitted out at this port, to at once sail, to take on board at sea a military expedition from Nassau of some two hundred men and military officers, which will leave there in a vessel, and another military expedition from Key West of some one hundred men, under command of one Cabaleiro: after all of which, and taking on board at sea arms provided, one Cisueros (who with General Jordan was joint commander of the Perit expedition from this city) will take charge of and conduct her to the coast of Cuba.

I respectfully submit that the ownership and history of this steamer, together with the outfit on board, and her preparations, easily ascertainable by this Government, if prompt movement be made, are sufficient to call for the exercise of the ample preventive power of this Government against her departure. Trusting that, in a proper way. I have complied with the disposition of this Government that I lay complaints of this character before, I hereby leave in your hands the responsibility of permitting this formidable instrument to proceed on her illegal expedition to the great injury of my Government.

What is the reply of the district attorney? Does he take the sus picions of the consul as facts until disproved, and proceed at once to detain the vessel ? Not so. He answers:

You accompany your letter with no proof or evidence that would authorize me to seize the Hornet for the alleged intended breeches of our neutrality laws, or to take any steps beyond those I have already taken. I have caused the most rigid scrutiny to be exercised, to see that the Hornet has taken on board nothing of a nature to indicate the hostile intentions you mention. I am advised that her intention is to clear and sail in ballast for Nassau. What her intentions may be on reaching that port are things that remain unproven, and in nowise indicated except by the intimations of your favor. I cannot legally act on mere surmise, but if furnished with proper evidence I shall not hesitate to take any steps necessary to prevent violations of our laws. Page 466.

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2

Papers relating to Foreign Relations of the United States, presented to Congress December 4, 1871, p. 781.

3

Papers relating to Foreign Relations of the United States, 1871, pp. 781, 782.

The violation of the laws was not prevented. Mr. Roberts complains that "that same day the steamer Hornet put to sea from the port of New York, without the judicial authorities of the Federal Government having taken such measures to prevent her departure as should have been dictated to them by the circumstances and criminal antecedents of the aforesaid vessel."

To this complaint of reliance upon the law for preventive measures, instead of having recourse to prerogative force, Mr. Fish thus replies: The undersigned has the honor, in reply to this portion of the first note of Mr. Lopez Roberts, to say that it appears from this correspondence that the Hornet, having been seized on the complaint of the Spanish consul only two months before the date of the correspondence, and a hearing in which the Spanish consul took part having resulted in the discharge of the vessel, no subsequent proof, or anything in the nature of legal evidence other than a repetition of that which had already been passed upon by the court, and been decided to be insufficient for the detention of the vessel, had been forwarded by the consul, or by any other Spanish official; that, nevertheless, the district attorney offered to again take steps to detain the Hornet, if proof were furnished which would warrant him in so doing, which proof was not furnished.

The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the Vessels of American citizens without legal process, founded not upon surmises or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law.

Mr. Fish, therefore, though he had promised to refer the matter to the Department of Justice, is of opinion that "the district attorney complied with his duty, and would not have been justified in taking steps for the seizure of the vessel on the unsupported representations of the consul, after the failure of that officer to furnish the requisite proof to authorize her continued detention."

1

After these details it can admit of no doubt that the history of the United States has been marked not only by systematic privateering against nations with whom the United States were at peace, but also by a series of hostile expeditions carried out in the most determined manner by American citizens against the territories of neighboring and friendly nations.

The counsel of the United States appear to have been aware of the anomalous position in which their Government is placed by the contrast between the manifest failure on its own part to repress these undertakings, and the strictness with which it now attempts to enforce against Great Britain the duty of diligence to repress far less flagrant breaches of neutrality directed against itself. A number of documents have accordingly been appended to the United States counter-case showing (though in an imperfect and fragmentary manner) the various instructions and proclamations which have been issued by the Presi dent and Government officials of the United States for the prevention of these enterprises. These documents, however, omit to mention the results, some of which I have thought it necessary to state. Nevertheless, they tend strongly to confirm the statements of fact contained in the appendix to the report of the neutrality commissioners and those made in the counter-case of the British government, and which have not been contradicted.

The story of all these expeditions as told in a great part in the porclamations of the different Presidents, is pretty much the same.2 Some scheme of annexation, or other form of invasion is started, public meet

Papers relating to Foreign Relations of the United States, p. 786.

See President's Proclamations of December 2, 1851, October 30, 1853, and October 12, 1969. British Counter Case, pp. 37, 39, 45.

ings of sympathizers are held, a reckless soldier of fortune is selected for chief, funds are raised by bonds issued on the security of the public lands of the country which it is proposed to conquer, arins are collected, recruits advertised for under some transparent verbal concealment of the object, and at last a certain number of men are got together and embark, or otherwise set forth. If the country against which the attack is directed is feeble or unprepared, scenes of outrage and bloodshed follow, until the marauders are driven to the coast, where they find refuge on board American vessels, (in some cases it has been on board ships of war,) and return to the protection of the United States to prepare for a fresh attack. If the country is able vigorously to repel them, as in the case of the Fenian raids, they content themselves with a demonstration on the frontier, seek at once asylum, are disarmed, and the ringleaders are perhaps tried. Those who are convicted are almost certain of an immediate pardon. After an interval the arms are restored, and unless the scheme has become so discredited by failure as to be incapable of revival, preparations are forthwith recommenced for another attempt, and everything goes on as before.

In the cases particularly mentioned in the British counter case, viz, the expeditions of Lopez, Walker, and the Fenian raids, it will be observed that it cannot be said that the Government of the United States had not full information of the projected enterprises, and ample time for giving such instructions as might seem to be requisite for their prevention. Indeed, it is maintained in the argument of the United States counsel (p. 90) that "the President of the United States acted in advance to enforce not diligence only, but active vigilance in all subordi nate officers of the Government."

How successfully that vigilance and diligence was eluded may be gath ered from the facts which have just been stated.

In the face of such facts the following comparison between the United States and Great Britain as to the observance of neutral obligations, to the disparagement of the latter, seems, to say the least of it, somewhat surprising:

As to the deportment of the Executive in the course of these occurrences, we confidently appeal to the mass of official acts and correspondence contained in the documents annexed to the American counter-case, to prove that the American Government not only did everything which law required, but did everything which was humanly possible, by preventive vigilance, as well as by punitive prosecution, to discharge the neutral obligations of the United States.

Did the American Government, at any time, or, on any occasion, either willfully or with culpable negligence, fail to discharge those obligations? We deny it; although, in the midst of almost continual warfare, both in Europe and America, it is possible that violations of law may have occurred, in spite of all preventive efforts of that Government.'

During all this long period, the United States steadily labored to prevent equipment of vessels in their ports to the prejudice of Spain. The successive Presidents of the United States were positive in instruction to all subordinate officers, and vigilant in observation, to enforce the execution of the laws of neutrality, international as well as municipal. Prosecutions were instituted by the courts; vessels unlawfully captured were restored, by judicial or administrative order; and the principles of neutrality were proclaimed and maintained in every act, whether of the courts or of the Executive.

While England professes as her view of public law, that constitutional governments must of necessity allow themselves to drift continually into war by reason of having no other means to keep peace except an act of Parliament, and that confessedly insufficient, the United States, on the other hand, have as constantly maintained, and do now

1 United States Argument, p. 82.

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