if the means used by the Government proved ineffectual, he had likewise no redress. He was equally without redress if his vessel had been plundered or destroyed at sea and not brought into an American port. If the capture was made before a certain date arbitrarily fixed, then, although the prize had been brought within the jurisdiction of the United States, the Government would do nothing to secure him either restitution or indemnity. This is one of the two precedents on which the United States rely as establishing the proposition "that when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters in any of the foregoing respects, the neutral should make compensation for the injury resulting therefrom," and as justifying the claims it now makes against Great Britain. What the other is, we shall see presently. Let us now observe the terms in which this transaction has been represented to the arbitrators: The Government of General Washington determined, however, as it had been informed of these attempts at violating the sovereignty of the nation, that it was the daty of the United States not only to repress them in future, but to restore prizes that might be captured by vessels thus illegally fitted out, manned, equipped, or commissioned within the waters of the United States, or, if unable to restore them, then to make compensation for them.3 From this examination it appears that the United States undertook to make compensation for the injuries resulting from violations that had taken place where they had failed to exert all the means in their power to prevent them. It was [31] subsequently agreed between the two governments that in cases where restitu tion of the prizes should be impossible, the amount of the losses should be ascertained by a method similar to that provided by the treaty of Washington, and that a money payment should be made by the United States to Great Britain in lieu of restitution. The United States are aware that some eminent English publicists, writing on the subject of the Alabama claims, have maintained that the obligation in such case to make compensation would not necessarily follow the proof of the commission of the wrong; but the United States confidently insist that such a result is entirely inconsistent with the course pursued by Great Britain and the United States, during the administration of General Washington, when Great Britain claimed of the United States compensation for losses sustained from the acts of cruisers that had received warlike additions in the ports of the United States, and the United States admitted the justice of the claim, and paid the compensation demanded. Her Majesty's government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages. One of the vessels equipped and armed for warlike use within the territory of the United States was, after leaving it, commissioned as a public ship of war of the French Republic, under the name of the Cassius. The subsequent history of the ship has been often referred to in argu ment, and may be briefly noticed here. The Cassius had sailed from the Delaware River in January, 1795, have been required before the judges. That after the 18th February, 1794, the decision of the Supreme Court had removed those doubts which had for a time influenced the conduct of some of the inferior courts. And it does not appear that after that decision there was any delay on the part of the inferior courts in rendering, nor any opposition on the part of the captors to the execution of their process or decrees, insomuch that there existed no occasion thereafter to fulfill the ultimatum of the promise by exerting force to compel restitution."-The Elizabeth. Ibid., p. 327. "It appears, from the first part of this inquiry, that in promising to use all the means in their power for the restitution of vessels captured after that date, the United States did not undertake to make compensation in case those means should fail of their effect."-The Elizabeth. Ibid., p. 327. Case of the United States, p. 212. Ibid., p. 130. after an order to seize her had been issued, avoiding detenCase of the Cassius. tion partly by artifice, and partly by threatening an armed resistance to the United States authorities. She went to Saint Domingo, was there formally transferred to the French government, and commissioned under the command of an American officer. She returned in August to Philadelphia. While she was in that port proceedings were instituted against her and her commander by the owners of an American vessel which had been captured by her at sea, and condemned by a French prize-court. The owners alleged that the capture was illegal, and claimed damages. The subsequent proceedings and correspondence are too long for recital, and may be read in well-known books. It is sufficient to mention: 1. That the French minister laid claim to the ship as a public ship of war, and refused to be a party to any proceedings in the local courts, or to admit in any way their jurisdiction. He refused also to furnish any proof of her alleged transfer to his government, or of her character as a public ship, beyond his own declaration, given to the Executive as an act of courtesy, that she had been so commissioned at a certain date. 2. That the Government of the United States, while affirming, as an unquestioned fact (which had been incidentally proved on the trial of a person concerned in it) that the Cassius had been armed and equipped within the United States, in violation of their neutrality, did not claim any right to seize and detain her, but, on the contrary, instructed its law-officer to present to the court a "suggestion" (as it was technically called) that, as a public ship, she ought to be released as exempt from civil proceedings, and her commander discharged. 3. That, on the release of the ship, the French minister was informed by the Secretary of State that she was ready to be delivered to his order. The French minister, however, who had previously ordered her to be disarmed, refused to receive her, and she lay unclaimed for two years, at the end of which she was sold for a trifling sum by order of the Government, after a prior notification to the French consul-general, who had answered that his government had given him no authority in the matter. 3. VIOLATIONS OF AMERICAN NEUTRALITY DURING THE WAR CARRIED ON BY SPAIN AND PORTUGAL AGAINST THE SPANISH-AMERICAN COLONIES. during the war car Portugal against the During this war the ports of the United States were again used, and 3. Violation of on a still larger scale, for fitting out privateers against naAmerican neutrality tions with which the Republic was at peace. The vessels ried on by Spain and SO fitted out were numerous, and they appear to have been for the most part owned, as well as commanded and manned, by citizens of the United States. The object of these ventures was plunder; the men employed in them were under little or no disciplineor control; and they sometimes degenerated into actual piracy, from which, indeed, they do not seem to have been far removed. On [32] more than one occasion the courts of the United States had to determine whether the captain and crew of the so-called privateer had been engaged in a bona fide exercise of the jus belli, though under a commission obtained from an unrecognized government, or were, under 1A statement of the facts of this case will be found in a note by Mr. Dana in the appendix to the case of the United States, vol. vii, pp. 18-23. States and Portugal. the color of such a commission, mere robbers on the high seas; and, more than once, persons so tried were condemned to suffer death as pirates.1 Repeated and earnest remonstrances on this subject were, during several years, addressed to the Government of the United Correspondence beStates by the ministers of Spain and Portugal. The com- tween the United plaints of Portugal extended over four years, from 1816 to 1820. An abstract of them will be found in a dispatch addressed by Earl Russell to Mr. Adams, and dated 30th August, 1865.2 The Portuguese minister was repeatedly told, in answer, that the Government of the United States could only exercise the powers with which it was invested by the law; and he was told that, before prosecutions could be instituted, a list of the persons chargeable should be furnished, together with evidence to support the charges. This correspondence has been referred to, but very inaccurately, in the case of the United States. Thus, a note of the 8th March, 1818, addressed by the Portuguese minister to Mr. J. Q. Adams, the Secretary of State, is mentioned with the following comment:3 "The note making this complaint contained neither proof of the allegations in the note as to the fitting out of the vessels in the United States, as to their being manned with Americans, nor indications from which the United States could have discovered those facts for themselves." The note in question, which was very short, contained the following passage, "An extract of the documents that prove these facts I have the honor of inclosing in the annexed paper. The documents themselves are at your disposition when required." But Mr.. Adams did not ask for the documents. He contented himself with answering: The Government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws. enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can, in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide à tribunal before which the facts can be proved. The documents to which you refer must, of course, be ex parte statements, which in Portugal or in Brazil, as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction, and found, upon judicial inquiry, to have been taken in the manner represented by your letter. By the universal laws of nations, the obligations of the American Government extend no further. "The United States," wrote Mr. Adams, on the 30th September, 1820, "bad repressed every intended violation" of neutral duties "which had been brought before their courts, and substantiated by testimony conformable to principles recognized by all tribunals of similar jurisdiction." They had also enacted more stringent laws. But it had been represented by See United States es. Klintock, 5 Wheaton, 144; United States vs. Smith, ibid., 153; United States rs. Furlong, ibid., 184; United States 8. Jones, 3 Washington's C. C., 29; and the case of the officers and crew of the Irresistible, 18 Niles's Register, 256, 275. Appendix to British case, vol. iv, No. 5, correspondence respecting the Shenandoah, p. 25. Appendix to case of the United States, vol. iii, pp. 553, et seq. Case of the United States, p. 139. Appendix to British case, vol. iii, p. 149. Ibid., p. 150. Ibid., p. 158. H. Ex. 324-4 Portugal that, in spite of these newly enacted laws, the acts complained of continued to be "both frequent and notorious;" it was affirmed that the officers of the Government were "lukewarm;" that notorious as the offenses were, it was difficult to obtain the evidence which was required; and the multitude of persons interested, directly or indirectly, in privateering, interposed great obstacles in the way of a prosecution. In a note addressed to Mr. Adams on the 23d November, 1819, by M. Corréa de Serra, the grievances of Portugal were recapitulated as follows: I have the honor of submitting to you the following facts and considerations : During more than two years I have been obliged by my duty to oppose the systematic and organized depredations daily committed on the property of Portuguese subjects by people living in the United States, and with ships fitted in ports of [33] the Union, to the ruin of the commerce of Portugal. I do justice *to, and am grateful for, the proceedings of the Executive, in order to put a stop to these depredations, but the evil is rather increasing. I can present to you, if required, a list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which have been taken by these people during the period of full peace. This is not the whole loss we have sustained, this list comprehending only those captures of which I have received official complaints. The victims have been many more, besides violations of territory by landing and plundering ashore, with shocking circumstances. One city alone on this coast has armed twenty-six ships which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise. Certainly, the people who commit these excesses are not the United States, but nevertheless they live in the United States, and employ against us the resources which this situation allows them. It is impossible to view them otherwise than a wide extended and powerful tribe of infidels, worse still than those of North Africa. The North Africans make prizes with leave of their government according to their laws and after a declaration of war; but these worse infidels, of whom I speak, make prizes from nations friendly to the United States against the will of the Government of the United States, and in spite of the laws of the United States. They are more powerful than the African infidels, because the whole coast of Barbary does not possess such a strength of privateers. They are numerous and widely scattered, not only at sea for action, but ashore likewise to keep their ground against the obvious and plain sense of your laws, since most generally, wherever they have been called to the law, they have found abettors who have helped them to evade the laws by formalities. I shall not tire you with the numerous instances of these facts, but it may be easily conceived how I am heartily sick of receiving frequent communications of Portuguese property stolen, of delinquents inconceivably acquitted, letters from Portuguese merchants deeply injured in their fortunes, and seeing me (as often has been the case) oppressed by prayers for bread from Portuguese sailors thrown penniless on the shores after their ships had been captured.1 In the case of the United States, the minister who writes thus earnestly and vehemently is represented as "attaching little or no importance to the matter." The reason given is, that he adds that he has chosen the moment to make a visit to Brazil. But, in the sentences which precede and follow, and of which no notice is taken in the case of the United States, he has explained why he chose to leave his post at that particular time, namely, that until, by amendment of the law, or otherwise, the proper means should be found for putting an end to this "monstrous conspiracy," he found by experience that complaints were useless, and should refrain from continuing to present them without positive orders.3 Portugal asked (16th July, 1820) for the appointment of a joint com Appendix to British case, vol. iii, 2 Case of the United States, p. 143. At p. 146 of the case of the United States, Earl Russell is accused of having purposely omitted, in his correspondence with Mr. Adams, to notice the promises made by the American Government, that persons offending against the laws should be prosecuted. On the contrary, he expressly mentioned this promise. (See Appendix to case of the United States, vol. v, p. 558.) Again, at pp. 142, 146, he is represented as approving, assuming, assenting to, all the arguments which he had simply recounted as having been ineffectually urged in the former controversy by Portugal. mission; but this was refused by the United States. "The appointment of commissioners," it was replied, "to confer and agree with the ministers of Her Most Faithful Majesty upon the subject to which your letter refers, would not be consistent either with the Constitution of the United States nor with any practice usual among civilized nations. The judicial power of the United States is, by their Constitution, vested in their Supreme Court, and in tribunals subordinate to the same. The judges of these tribunals are amenable to their country by impeachment, and if any Portuguese subject has suffered wrong by any act of any citizen of the United States within their jurisdiction, it is before these tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible." 1 In 1850, the proposal for a commission to investigate these claims was renewed, by Portugal. The Portuguese minister then took notice that captures of Portuguese vessels by privateers, fitted out and equipped in ports of the United States, had continued to be made down to the year 1828; that upward of sixty had been captured or plundered, and that the fitting out of these privateers at Baltimore had been a matter of public notoriety. He added, in the same dispatch, the following state ments: The undersigned begs leave to say, and he submits, that it was the duty of the United States Government to exercise a reasonable degree of diligence to prevent these proceedings of its citizens, and that, having failed to do so, a just claim exists on the part of the Government of Portugal in behalf of its despoiled subjects, against the United States, for the amount of losses sustained by reason thereof. M. de Figanière would here recall to the honorable Mr. Webster's attention the state of the negotiations between the two governments on this subject. So early [34] as the year 1816 the Chevalier "Corréa de Serra, His Most Faithful Majesty's plenipotentiary, apprised Mr. James Monroe, the then Secretary of State, of these illegal armaments in Baltimore. In March, 1818, that minister claimed indemnification by the Government of the United States for the losses sustained by Portuguese subjects from the captures made by the said privateers, to which application the Secretary of State, in a note dated the 14th of said March, replied that "the Executive having used all its power to prevent the arming of vessels in its ports against nations with whom it was at peace, and having put into execution the acts of Congress for keeping neutrality, it could not consider itself obliged to indemnify foreign individuals for losses arising from captures upon which the United States had neither command nor jurisdiction." The undersigned willingly admits that, if the Executive of the United States had used all its power to prevent the arming of vessels within its territory, and their sailing from its ports against the commerce of Portugal, no claim could have been set up by or in behalf of Portuguese subjects against the Government of the United States, but that the only remedy would have been against the wrong-doers, in the courts of law of the United States. But, in point of fact, the fitting out of these privateers was so notorious, that by due diligence on the part of the Government and the officers of the United States the evil might have been prevented. It appears to the undersigned that the only question to be examined is, whether the Government of the United States could, by the exercise of a reasonable degree of diligence, have prevented its citizens from going out of its ports in armed vessels, to cruise against the commerce of Portugal, a friendly nation with which the United States had ever been at peace, and had uninterrupted commercial relations. The undersigned respectfully states that the captures in question were made by American citizens, in vessels fitting out in ports of the United States, and that the fitting out of these vessels, he verily believes, was "not checked by all the means in the power of the Government," but that there was a "neglect of the necessary means of suppressing" those expeditions. The public notoriety of these expeditions is easily shown. A reference to Niles's Register, and other organs of public information published in those times, will suffice for this purpose; and nothing was more generally known at Baltimore than that these expeditions were commonly fitted out at that port. Indeed, privateers were not only equipped in Baltimore, but they were accustomed to bring their captures there for 1Appendix to British case, vol. iii, p. 157. |