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to lure American privateers into the fray, and frequent cases appear in the reports with the Spanish or Portuguese consul as libellant. Again the United States courts asserted jurisdiction and as before they generally decreed restitution to the original owner.30 The effrontery with which these privateers sometimes put forth their claims was astonishing. On several occasions the expeditions appear to have been nothing short of piracy, as captures were made before any commission was obtained from the South American insurgents. Under such circumstances the owner of the privateer would put forth a claim of expatriation 31 or of a sale of the privateer to a fictitious South American party,32 claims which were for the most part ignored by the court. 33

30 Restitution was denied in La Amistad de Rues, 5 Wheat. 385, (1820); the case was remanded for further evidence in The Divina Pastora, 4 Wheat. 52, (1814) and in the following cases restitution was decreed : The Brig Alerta vs. Moran, 9 Cranch, 359, (1815) The Estrella, 4 Wheat. 298, (1819); La Conception, 6 Wheat. 235, (1821) The Bello Corrunes, 6 Wheat. 152, (1821); The Santissima Trinidad, 7 Wheat. 285, (1827); The Gran Para, 7 Wheat. 471, (1822); The Arrogante Barcelones, 7 Wheat. 496, (1822); The Santa Maria, 7 Wheat. 490; The Monte Allegre, 7 Wheat. 520, (1822); The Nereyda, 8 Wheat. 108, (1823); The Fanny, 9 Wheat. 659, (1824).

31 The Gran Para, 7 Wheat. 471, (1822).

32 La Nereyda, 8 Wheat. 108, (1823) ; The Monte Allegre, 7 Wheat. 520, (1822).

33 In some dicta in cases of this character the court expressed the opinion that a bone fide transfer of the prize to an innocent third party destroyed the taint of illegality, (The Arrogante Barcelona, 7 Wheat. 496, 1822) but where such a case arose restitution of the prize was decreed (The Fanny, 9 Wheat. 658, 1824). A bona fide sale of the privateer after the illegal outfit in the United States was held to remove the taint of illegality from subsequent captures but such sale must be clearly proved (The Monte Allegre, 7 Wheat. 520, 1822; Moodie vs. The Alfred, 3 Dall. 307, 1796). It was held that making of repairs with augmentation of force did not amount to a breach of neutrality and consequently did not make prizes illegal (Moodie vs. The Phoebe Ann, 3 Dall. 319, 1795; Geyer vs. Michel and the Ship Den Onzekeran, 3 Dall. 285). A sale in the United States of prizes captured under a French commission, being impliedly permitted by the French treaty of 1778, (art. 17, 22, Malloy, p. 474) was held to be no breach of neutrality and hence did not make the prize illegal, (Moodie vs. The Amity, Fed. Cas., 9741). The United States never admitted that France had an absolute right of sequestrating and selling prizes in the United States under this treaty (Moore's Digest, 7:936). Such sales are now forbidden by international law (Hague Conventions, 1907, XIII, art.

It appears that the law of the United States permits of courts exercising jurisdiction over illegal prizes and disposing of them in a manner to fulfill the state's neutral obligation of vindication. It must be noted that the exercise of this jurisdiction implies custody of the prize. If the prize is in a foreign port the United States courts have no jurisdiction, although the case may be such that the government of the United States is under an obligation to demand its return.34


The duty of vindication following an illegal act by a belligerent warship may involve the exercise of jurisdiction, (1) over the officers and crew of the vessel or (2) over the vessel itself. Formerly a distinction was drawn between cases involving public warships and those involving privateers. As privateering is now technically abolished this distinction is no longer important, and even before its abolition the courts declared that for most legal purposes privateers, bearing a commission of the sovereign, were in the same status as public warships. 35

(1) It was held in an opinion of Attorney General Nelson in 184436 that, although belligerent public vessels themselves are not subject to the jurisdiction of United States courts, their commander and officers are and can be criminally prosecuted for breaches of the neutrality statutes. He said, “the very purpose of the act would be defeated were it otherwise; and there is no principle of which I am aware which exempts from responsibility for criminal acts within our jurisdiction the commander or officers of ships of war of other nations with whom we are at peace.” While there seem to be no cases in which prosecution of the officers of men of war has been under21, Malloy, p. 2361; Moore's Digest, 7;935-938). In any case a bone fide condemnation in a recognized court was held to transfer title conclusively, in the prize, but the condemnation must be satisfactorily evidenced (La Nereyda, 8 Wheat. 108, 1823). Where none of these circumstances intervened, restitution to the original owner was decreed, but claims for further damages by the injured owner of the prize were denied (La Amistad de Rues, 5 Wheat. 385). Supra p. 108, note 7.

34 See Hague Conventions, 1907, xiii, art. 3, Malloy, p. 2359 and United States understanding of it, Senate Resolution of Apr. 17, 1908, Malloy, P. 2366.

35 L'Invincible, 1 Wheat. 238, (1816).
36 Nelson, Att. Gen., 4 op. 336, (1844).


taken, the commanders of privateers holding commissions of foreign belligerent states have been prosecuted when it could be proved that they were still American citizens as is necessary for prosecution under the first section of the neutrality act. If a privateer is to be regarded as subject to the same legal exemption as a man of war it would seem that these cases are in accord with Attorney General Nelson's opinion. Prosecution has never been attempted of commanders of privateers under sections of the neutrality acts which are not directed against citizens alone, as for instance section five,38 which prohibits the augmentation of force of warships or privateers in the territory of the United States by any person. A very similar case arose in the criminal prosecution of Alexander McLeod by the State of New York in 1841.39 He was a soldier acting under authority of Great Britain, but nevertheless New York maintained its jurisdiction to punish him criminally for a homicide committed in that capacity, in the State.

At present international law seems to exempt the officers and crew of public vessels from local jurisdiction so long as their acts are in pursuance of official business or take place entirely within the vessel.40 This exemption, however, does not extend to acts done on land in violation of local laws, and if the commander of a warship is engaged in augmenting the force of his vessel by the purchase of military materials or the recruitment of men in the territory of the United States and outside of his vessel, it seems probable that he would be liable to the criminal provisions of the neutrality act, although in such a case undoubtedly diplomatic protest would be resorted to rather than criminal prosecution.

The criminal prosecution of the officers of warships is not itself a duty of vindication. Internment of such officers in certain cases is the action required of neutral states. It would seem that executive authorities can exercise jurisdiction over foreign naval forces to perform the duties required by treaties. The internment of land forces has been upheld in the courts 41 and it is probable that the same action as to naval forces is permitted by the law of the United States.

37U. S. vs. Isaac Williams, Fed. Cas. 17,708, 2 Cranch 82; note: In re Henfield, Fed. Cas. 6360, (1793).

38 Revised Statutes, 5285, Penal Code of 1910, sec. 12. 39 People vs. McLeod, (N. Y.) 25 Wend. 483, 1 Hill 375, (1841). 40 See Moore's Digest, 2; sec. 256. 41 Ex Parte Toscano, 208 Fed. Rep. 938, (1913).

(2) Whether United States courts can exercise jurisdiction over foreign public vessels which have violated the neutrality of the United States is a question of difficulty. It has been noted that courts can exercise jurisdiction over the prizes captured by belligerent privateers or cruisers in certain cases. The exercise of jurisdiction over the privateer or warship itself is an entirely different question. In the neutrality statutes forfeiture of privateers fitted out in the United States for unneutral purposes is provided for, 42 but this may be intended to refer to cases where the vessel was apprehended before being commissioned by the foreign power, and so does not necessarily imply a grant of jurisdiction over foreign public vessels. It has however been interpreted so to apply. In the case of the Cassius,43 which was a French public vessel originally fitted out in the United States in violation of the neutrality laws, the vessel was held for a long time pending litigation and ultimately released on a technicality. France had protested at the exercise of jurisdiction over this vessel and finally abandoned it with the intention of protesting the matter diplomatically. Secretary of War Pickering in referring to this case upheld the court's jurisdiction,44 for he thought if forfeiture could not be had in such cases the neutrality acts could be completely evaded by transferring illegally fitted out vessels to the foreign government at their first port. The exemption of foreign warships from local jurisdiction was denied by Attorney General Bradford in an opinion of 179445 in which he supported the execution of writs of habeas corpus on a British public vessel in an American port, for the purpose of releasing American citizens held on board. This action gave rise to a protest by the British minister.

The better opinion however seems to be that expressed by Chief Justice Marshall in the Schooner Exchange vs. Mc-Faddon, *6 in which case the court refused juridiction of a French public vessel which had entered port in stress of weather and which was claimed by a United States citizen as having been

42 Revised Statutes, sec. 5283, Penal Code of 1910, sec. II.

48 Ketland vs. The Cassius, 2 Dall. 365. See also U. S. vs. Peters, 3 Dall. 121, which was an earlier case involving this vessel, which the court's jurisdiction was denied.

44 Letter of Sec. of State Pinckney, Oct. I, 1795, Am. St. Pap., For. Rel., 1:634.

45 Bradford, Att. Gen., i op. 47, (1794).
40 The Schooner Exchange vs. McFaddon, 7 Cranch, 116, (1812).

illegally made prize by the French. The court held that while the principle of territorial sovereignty was absolute, comity and custom demanded that public vessels be excepted from the general rule, and the court would infer that the government intended to observe the customary rule of comity unless it had expressly declared the contrary. The exemption of foreign public vessels from jurisdiction was emphatically maintained by Attorney General Cushing in 185547 the theory of extraterritoriality being asserted. As has been noted Attorney General Nelson, while maintaining that the officers of public vessels were subject to the territorial jurisdiction, admitted that the vessels themselves were exempt.48 This appears to be the rule and therefore, although United States courts can assume jurisdiction over illegal prizes, they cannot over foreign public vessels even when they have violated a duty of international law.49

Although courts cannot exercise jurisdiction over foreign public vessels violating neutrality, it is clear that executive officers must do so, if the duties of vindication are to be carried out. If a court exercised jurisdiction it would have authority to declare the vessel forfeited and thus change its ownership. Executive officers can exercise no such authority as this, but they can expel or detain a public vessel, render it incapable of putting to sea and intern its crew when occasion demands. The power to expel50 public vessels is specifically given in the neutrality laws to the president, and in the execution of this power he may use the land and naval force and the militia of the country, if necessary. The power to detain vessels violating neutrality statutes is given to the presidenti and also to custom officers 2 when circumstances render an unneutral use probable. This does not apply to belligerent war vessels in general. It has been held that the president's power can only be used in aid of judicial process, and only military, not civil, officers can be employed.53 A customs officer detaining a vessel

47 The Sitka, 7 op. 123, (1855) Att. Gen. Cushing. See also 8 op. 73. 48 Nelson, Att. Gen., 4 op. 336, (1844).

49 For discussion of the exemption of public vessels from territorial jurisdiction see Hall, International Law, p. 195.

50 Rev. Stat. 5288, Penal Code of 1910, sec. 15. 51 Rev. Stat. 5287, Penal Code of 1910, sec. 14. 52 Rev. Stat. 5290, Penal Code of 1910, sec. 17.

53 Gelston vs. Hoyt, 3 Wheat. 246; See also 4 op. 336, (1844), somewhat modified in 21 op. 273.

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