always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and cannot be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens. That even this measure of obligation has not been recognized in practice might be clearly shown by reference to the laws in force in the principal countries of Europe and America. It would be enough, indeed, to refer to the history of some of these countries during recent periods, for proof that great and enlightened states have not deemed themselves bound to exert the same vigilance and employ the same means of repression, when enterprises prepared within their own territories endangered the safety of neighboring states, as they would probably have exerted and employed had their own security been similarly imperiled.

11. In every country where the executive is subject to the laws, foreign states have a right to expect―

(a.) That the laws be such as in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of all acts which the government is under an international obligation to repress; (b.) That, so far as may be necessary for this purpose, the laws be enforced and the legal powers of the government exercised.

But foreign states have not a right to require, where such laws exist, that the executive should overstep them in a particular case, in order to prevent harm to foreign states or their citizens; nor that, in order to prevent harm to foreign states or their citizens, the executive should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. Nor are the laws or the mode of judicial or administrative procedure which exist in one country to be applied as constituting a rule or standard of comparison for any other country. Thus, the rules which exist in Great Britain as to the admission and probative force of various kinds of testimony, the evidence necessary to be produced in certain cases, the questions proper to be

tried by a jury, the functions of the executive in regard to the [25] prevention and prosecution of offenses, may differ, as the organi

*

zation of the magistrature and the distribution of authority among central and local officers also differ, from those which exist in France, Germany, or Italy. Each of these countries has a right, as well in matters which concern foreign states or their citizens, as in other matters, to administer and enforce its own laws in its own forum, and according to its own rules and modes of procedure; and foreign states cannot justly complain of this, unless it can be clearly shown that these rules and modes of procedure conflict in any particular with natural justice, or, in other words, with principles commonly acknowledged by civilized nations to be of universal obligation.

In connection with the foregoing propositions are to be taken the three rules stated in Article VI of the treaty, and accepted by Her Britannic Majesty's government in the manner expressed in that article.

NEUTRALITY LAWS-LAW OF THE UNITED STATES.

The case of a vessel which is dispatched from a neutral port to or for the use of a belligerent, after having been prepared within the neutral territory for warlike use, is one which may be regarded from different

points of view, and may fall within the operation of different principles. The ship herself may be regarded merely as an implement or engine of war, sold or manufactured to order within neutral territory, and afterward transported therefrom, and the whole transaction as falling within the scope of the principles applicable to the sale, manufacture, shipment, and transportation of articles contraband of war; or, on the other hand, the preparation and dispatch of the ship may be viewed as being really and in effect the preparation and commencement of a hostile expedition. The circumstances of each case can alone determine from which of these two points of view it may most fitly be regarded, and to which class the transaction ought to be assigned. But the difficulty of drawing a clear, precise, and intelligible line between these two classes of transactions has always been considerable in theory, and still greater in practice; and it was enhanced to the utmost during the civil war by the ingenuity and audacity of American citizens, who were engaged in carrying on hostilities against the Government of the United States, and were desirous of availing themselves for this purpose of the ship-building and manufacturing resources of Great Britain. This will sufficiently appear from the narrative which follows; and it will be seen also how serious and incessant were the trouble and embarrassment which these enterprises occasioned to Her Majesty's government. It is by the many dif ficulties encountered and by the experience acquired during the war that Her Majesty's government was finally led to the conclusion that it was expedient not only to enlarge the scope of its municipal law in relation to this subject beyond what has hitherto been deemed necessary in any other country, but, further, to accept for itself, and propose to other powers, rules of international obligation somewhat more stringent and comprehensive than are to be found in earlier expositions of the law of nations.

The acts of which the Government of the United States is understood to complain belong to a class which have not commonly been made an object of prohibitory legislation. In few countries, or in none, according to the information received by Her Britannic Majesty's government, did the law directly prohibit such acts, or make any definite provision for preventing them, at the time when this war began, except in the United States and Great Britain. Laws are not made till the necessity for them has arisen. In the United States the necessity arose at a very early period in the history of that commonwealth, and has again repeatedly presented itself at various times. The first maritime war in which the United States held the position of a neutral power was that which commenced in 1793, when the French Republic declared war against Great Britain and against the United Provinces of the Netherlands. Within three months after the declaration of war several privateers had been procured, equipped, armed, and commissioned in ports of the United States to cruise under the French flag against the commerce of Great Britain, with which the United States were at peace. They were not only fitted out in American ports, but were owned, officered, and manned, in large proportion, by American citizens. The measures adopted by the Executive of the United States to restrain these enterprises proved inadequate; they were renewed from time to time, and the persons who took part in them were not punished; and on the 5th June, 1794, an act of Congress entitled "An act in addition to the act for the punishment of certain crimes against the United States" was passed for amending the law in this respect. This act was a temporary one, to continue in force for two years, and thenceforth until the end of the then next session of Congress. Its provisions were re-enacted on the 2d March, 1797,

and were made perpetual by an act of Congress passed on the 24th April, 1800. It was not completely effectual. From the published [26] reports of cases decided in the American *courts it appears that depredations on British commerce were again and again committed by French privateers, subsequently fitted out and armed for war in ports of the United States.

In March, 1806, an expedition against Spain (with which the United States were at peace) was fitted out in New York by one Miranda, a native of Peru, who had served in the French republican army under Dumouriez. This expedition, which consisted of an armed vessel, carrying 18 guns, and two schooners, sailed for its destination. Orders were issued for arresting it, but they were too late. Persons who participated in it were afterward prosecuted, but were acquitted by the jury before whom they were tried.

In the year 1810 war broke out between Spain and her American colonies, and in 1816 Portugal engaged in the war on the side of Spain. The United States remained neutral. It appears from the correspondence which subsequently passed between the Government of the United States and the governments of Spain and Portugal, as well as from the published reports of cases decided in the courts of the United States, that a considerable number of privateers were, at various times during the war, but chiefly in the earlier part of it, fitted out, manned, and armed in ports of the United States for the purpose of cruising against the commerce of Spain and against that of Portugal, and that large numbers of Spanish and Portuguese ships were captured by these privateers. In the dispatches of the Portuguese minister at Washington not fewer than twenty-six of such privateers are mentioned as having been fitted out and armed at a single American port; and fifty ships belonging to Portuguese citizens are stated to have been captured between the years 1816 and 1819, inclusive. It was further stated that the privateers were, for the most part, not only fitted out, but owned and commanded, by citizens of the United States. The facts alleged do not appear to have been disputed by the Government of the United States. In answer to the first representation of the Portuguese minister, in which he indicated ten ships which had armed, or were believed to be then arming, at Baltimore, Mr. Monroe, then Secretary of State, wrote as follows:

The United States Secretary of State to the Portuguese minister at Washington.

WASHINGTON, December 27, 1816. SIR: I have had the honor to receive your letter of the 20th instant, complaining of certain equipments of armed vessels from Baltimore, and of instructions given to the commander of one of those vessels to attack conditionally the vessels of your sovereign, the King of Portugal and Brazil. You are aware that these vessels are equipped without any authority from this Government, and on pretexts very different from those which you assign. You are also aware that the existing laws do not authorize the President to interfere in such cases, and it is your object to obtain such amendment of them as may be sufficient for the purpose.

I have communicated your letter to the President, and have now the honor to transmit to you a copy of a message which he has addressed to Congress on the subject, with a view to obtain such an extension by law of the executive power as will be necessary to preserve the strict neutrality of the United States in the existing war between Spain and the Spanish colonies, and effectually to guard against the danger in regard to the vessels of your sovereign which you have anticipated.

As soon as a law may be passed on this subject, I shall have the honor of communicating it to you, and I avail myself of this opportunity of assuring you of the great interest which the President takes in cultivating the most kindly relations with your sovereign, his subjects, and dominions.

I have, &c.,

(Signed)

Chevalier J. CORREA DE SERRA.

JAMES MONROE.

On the 26th December, 1816, President Madison communicated to Congress the following message:

WASHINGTON, December 26, 1816.

It is found that the existing laws have not the efficacy necessary to prevent violations of the obligations of the United States as a nation at peace toward belligerent parties, and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States.

With a view to maintain more effectually the respect due to the laws, to the character, and the neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force within the jurisdiction of the United States, or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments, with the exceptions in such provisions of the cases of merchant vessels furnished with the defensive armaments used on distant and dangerous expeditions, and of a private commerce in military stores permitted by our laws. and which the law of nations does not require the United States to prohibit. (Signed) JAMES MADISON.

[27]

Papers relating to the same subject were at the same time laid by the Committee on Foreign Affairs before the House of Representatives. Among these was one by Mr. Monroe, then Secretary of State, in which he reported as follows:

The provisions necessary to make the laws effectual against fitting out armed vessels in our ports, for the purpose of hostile cruising, seem to be

1st. That they should be laid under bond not to violate the treaties of the United States, or the obligations of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels subsequent to their departure.

2d. To invest the collectors, or other revenue officers where there are no collectors, with power to seize and detain vessels under circumstances indicating strong presump tion of an intended breach of the law; the detention to take place until the order of the Executive on a full representation of the facts had thereupon can be obtained. The statute-book contains analogous powers to this above suggestion. (See particularly the eleventh section of the act of Congress of April 25, 1803.)

The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracy as a preventive where there is reason to suspect an intention to commit the offense. They rest upon the general footing of punishing the offense where, if there be full evidence of the actual perpetration of the crime, the party is bonded over after the trial to the penalty denounced.

On the 3d March, 1817, a short act was passed, by the first section of which provision was made (by the introduction of the words "colony, district, or people,") for the case of a belligerent community or body of persons not recognized as a sovereign state.

The second and third sections were as follows:

SEC. 10. And be it further enacted, That the owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into bond to the United States, with sufficient sureties, prior to clearing out the same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

SEC. 11. And be it further enacted, That the collectors of the customs be, and they are hereby, respectively authorized and required to detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign state, or of any colony, district, or people, with whom the United States are at peace, until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section of this act.

It is to be remarked that these provisions were enacted on a representation by the Secretary of State that it had become necessary, in order to make the laws against fitting out armed vessels effectual, to invest the collectors or other revenue officers with a preventive power to seize and detain on a reasonable suspicion, or at any rate on a "strong presumption," of an intended breach of the law. The only cases in which Congress was willing to confer this power were those defined in these sections, neither of which could by any latitude of construction be so extended as to include a vessel which at the time of its departure was neither armed nor laden with a cargo consisting principally of arms and munitions of war. Nor would the second seetion embrace any vessel not owned wholly or in part by citizens of the United States; and the security which the collectors were authorized to take was a security only against a hostile employment of the ship by the "owner or owners" thereof, and (in cases within the second section) by "such owners; that is to say, by owners being American citi

zens.

On the 20th April, 1818, a further act of Congress was passed, entitled "An act in addition to the act for the punishment of certain crimes against the United States, and to repeal the acts therein mentioned." By this act the acts of 1794, 1797, and 1817, were repealed, and their provisions were revised and consolidated, but without being made more stringent in any material respect. It has never since been repealed, altered, or amended, and continues at the present day a part of the law of the United States.

Notwithstanding the legislation of 1817 and 1818, the Spanish and Portuguese ministers continued from time to time to complain to the Government of the United States of depredations on Spanish and Portuguese commerce by vessels fitted out and armed in ports of the United States. By the Spanish minister, writing on the 24 November, 1817, it was affirmed that "the act of Congress of the 3d March, 1817,

has in nowise lessened the abuses by which the laws are evaded, [28] and which render entirely illusory the laudable *purposes for

which they were enacted." "From the greater part," he continued, "of the ports of these States there frequently sail a considerable number of vessels, with the premeditated intention of attacking the Spanish commerce, which carry their armament concealed in the hold. It rarely happens that they can be arrested, inasmuch as the collectors of customs say that they have not at their disposition the naval force necessary to effect it. On the other hand, armed vessels, under the flag of the insurgents, enter into the ports of the Union, and not only supply themselves with all necessaries, but also considerably increase the means they already have of destroying the trade of Spain, as has recently been the case at New York, whereby the (so-called) privateers of His Majesty's revolted provinces, which are in reality nothing more than pirates, manned by the scum of all countries, enjoy greater privileges than the vessels of independent powers."

These remonstrances were repeatedly renewed during the year 1818. On the 7th May, 1818, he wrote

I would have considered myself dispensed from the necessity of again pressing this subject on your attention, if it had appeared possible for me to restrain these armaments by the employment of judicial means; but, unfortunately, the act of Congress of the 20th of April last, for preserving neutrality with foreign nations, and others already in force, although highly judicious, are easily eluded; and although these practices are public and notorious throughout the whole Union, His Majesty's consuis advise me that through a deficiency of evidence they cannot be restrained by a regular application of the law.