commettent une violation du devoir de la neutralité, un acte d'immixion dans les hostilités auquel l'adversaire est en droit de s'opposer par tous les moyens. Dans la pratique on regarde comme de tels actes d'hostilité: แ "1o, le transport volontaire des soldats, matelots et autres hommes de guerre; 64 20, la construction dans les ports neutres de vaisseaux de guerre on de commerce pour le compte de l'ennemi dès leur sortie; *3°, le transport volontaire de dépêches de l'un des belligé [197] rants. "Ces diverses contraventions, lorsqu'elles sont régulièrement constatées, entraînent la saisie et la confiscation du navire employé au transport. La confiscation s'étend également à la cargaison, si il est établi que les propriétaires avaient connaissance du but illicité du voyage. Toutefois cette pénalité n'est pas toujours exécutée à leur égard avec la même sévérité. En réalité elle constitute un acte de légitime défense auquel le neutre qui se rend complice de l'un des belligérants ne saurait échapper du côté de l'adversaire. "En dehors des cas qui viennent d'être énumérés, il existe encore un certain nombre d'objets dont le commerce est regardé, d'une manière plus ou moins générale dans la pratique des états, comme prohibé. Il constitute la contrabande de guerre proprement dite." Case of the Santie Without wearying the patience of the Tribunal in the further discussion of this question, it will be assumed that a vessel of ima Trinidad. war is not to be confounded with ordinary contraband of war. Indeed, the only respectable authority which has been cited even apparently to the contrary, is an observation which Mr. Justice Story thrust into the opinion of the Supreme Court of the United States, upon the case of the Santisima Trinidad.1 *If that eminent jurist [198] had said that a vessel of war was to be regarded in public law as an article which might be legitimately constructed, fitted out, armed, equipped, or dealt in by a person in the territory of a neutral, with the intent that it should enter the service of a belligerent, subject only to a liability to capture as contraband of war by the other belligerent, the United States would have been forced, with great regret, to ask this tribunal to disregard an opinion so at variance with common sense, and with the whole current of the actions of nations. Happily they are under no necessity of casting an imputation on the memory of one of their brightest judicial ornaments. During the last war between the United States and Great Britain a privateer, called the Monmouth, was constructed at Baltimore, and cruised against the enemy. After the peace she was stripped of her armament, and converted into a brig. She was subsequently loaded with munitions of war, armed with a portion of her original armament, and sent to Buenos Ayres, (which was then a revolted colony of Spain recognized as a belligerent, but not recognized as an independent government,) to find a market for her munitions of war. The supercargo was also authorized "to sell the vessel to the Government of Buenos Ayres if he could obtain a suitable price." He did sell her, and she *went into the service of that Government as a man-of-war. She [199] subsequently put into a port of the United States, and while there enlisted thirty new men, and took with her, when she put to sea, the newly enlisted men, and a tender, which carried some mounted guns and twenty-five men. After this addition to her effective power for in 17 Wheaton's Reports, page 283. jury, assisted by the tender, she captured the Spanish vessel Santisima Trinidad, and carried her cargo into Norfolk, one of the ports of the United States. On the instigation of the Spanish authorities, proceedings were taken for the restitution of this property, on the ground, first, that the Independencia had been originally illegally fitted out, armed, or equipped in the United States; secondly, that she had, after entering the service of Buenos Ayres, illegally recruited men and augmented her force within the United States. The court decreed a restitution of the property on the second ground. Any remarks, therefore, upon the first point were outside of the requirements of the case, and, under the American practice, would be regarded as without authority; but inasmuch as they were made by one of the most eminent writers on public law, they deserve the consideration which they have received. Taking them in con nection with the facts as shown in evidence, it is clear that the dis[200] tinguished judge intended to con*fine his statement to the case of a vessel of war equipped and dispatched as a commercial venture, without previous arrangement or understanding with the belligerent, and at the sole risk of the owner. "It is apparent," he says, "that she was sent to Buenos Ayres on a commercial venture." The whole of his subsequent remarks turned upon the absence of an intent, in Baltimore, in the mind of the owner, before she sailed, that she should, in any and at all events, whether sold or not, go into the service of the belligerent. oase of the Gran Para. The judges who were brought in contact with the witnesses in that case, and had access to all the original papers, and knew personally both the men and the facts, and who, therefore, had opportunities which Jare denied to us of judging of the merits of the case, seem to have reached the conclusion that this particular transaction was a purely commercial venture; and they placed the decree of restitution of the captured property upon later violations of law. It may, however, be said that the ordinary experiences of human life show that such deeds border upon the debatable ground between good faith and fraud. The court which decided that case evidently did so on the impressions which the judges received from the particular evidence before them; [201] for, on the very next day, the most illustrious of Controlled by the American judges, John Marshall, then Chief Justice of the United States, in the parallel case of the Irresistible, a vessel built at Baltimore, sent to Buenos Ayres, and there commissioned as a privateer, pronouncing the opinion of the same court, declared that the facts as to the Irresistible showed a violation of the laws of the United States in the original construction, equipment, and arming of the vessel; and that, should the court decide otherwise, the laws for the preser- • ration of the neutrality of the country would be completely eluded.1 In justice to the highest court of the United States, these two cases should be read together by all persons wishing to know its views upon the duties of a neutral nation in time of war, since if there be any difference in the principles involved in the two cases, then the true construction of the law is to be found in the carefully considered language of the court in the case of the Grain Para. The cases were both argued in February, 1822: the Gran Para upon the 20th, and the Santisima Trinidad on the 28th. The opinions were delivered in March: that of the Santisima Trinidad on the 12th; that of the Gran Para on the 13th. There can be no doubt that they were considered together in the [202] consultation-room. Therefore any apparently broad or ill *con 1 The Gran Para, 7 Wheaton's Reports, 471. Effect of a com sidered expressions in the opinion rendered on the12th of mission of the of March are to be regarded as limited and corrected by the carefully considered expressions of the Chief Justice on the tender as a vessel war. following day. Having thus demonstrated that the principles for which the United States contend have been recognized by the statesmen, the jurists, the publicists, and the legislators of Great Britain; that they have the approbation of the most eminent authorities upon the continent of Europe; and that they have been regarded by the other Powers of Europe in their dealing with each other, it only remains to show how the liability of the neutral for the acts of cruisers illegally built, or equipped, or fitted out, or armed within its ports, may be terminated. It has been intimated, in the course of the discussions upon these questions between the two Governments, that it may be said, on the part of Great Britain, that its power to interfere with, to arrest, or to detain either of the belligerent cruisers whose acts are complained of ceased when it was commissioned as a man-of-war; and that, consequently, its liability for their actions ceased. The United States might well content themselves with calling the attention of the Tribunal of Arbitration to the utter uselessness discussing these questions, if the liability to make com*pensation [203] for the wrong can be escaped in such a frivolous way. It is well known how the several British-built and British-manned cruisers got into the service of the insurgents. Few of them ever saw the line of the coast of the Southern insurgent States. The Florida, indeed, entered the harbor of Mobile, but she passed the blockading squadron as a British man-of-war. In most cases the commissions went out from England-from a branch office of the insurgent Navy Department, established and maintained in Liverpool at the cost and expense of the insurgent (so-called) Government. From this office the sailing orders of the vessels were issued; here their commanders received their instructions; and hence they departed to assume their commands and to begin the work of destruction. They played the comedy of completing on the high seas what had been carried to the verge of completion in England. The parallel is complete between these commissions and those issued by Genet in 1793, which were disregarded by the United States at the instance of Great Britain. If a piece of paper, emanating through an English office, from men who had no nationality recognized by Great Britain, and who had no open port into which a vessel could go unmolested, was potent not only to legalize the depredations of British built and manned cruisers *upon the commerce of the United [204]· States, but also to release the responsibility of Great Britain therefor, then this arbitration is indeed a farce. Such, however, cannot be the case. Sir Roundell Palmer, the Attorney General of Lord Palmerston's Opinion of Sir Cabinet, as well as of the present Government, well said, in Roundell Palmer. the House of Commons, in 1864, when defending the course of Great Britain as to the Tuscaloosa, a tender of the Alabama, "Can it be said that a neutral Sovereign has not the right to make orders for the preservation of his own neutrality, or that any foreign Power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent, by International Law, within the neutral territory, or has the right to complain, on the ground of International Law, of any means which the neutral Sovereign may see fit to adopt for the assertion of his territorial rights?" * * "It is a mere ques tion of practical discretion, judgment, and moderation what is the proper way of vindicating the offended dignity of the neutral Sovereign." 1 The United States do not deny the force of the commission of a manof-war issuing from a recognized Power. On the contrary, Opinion of Chief they point with a pardonable pride to the exhaustive Justice Marshall. [205] language of *Chief Justice Marshall on this subject as evidence of what they understand to be the practice of nations. Nor do they deny that since Great Britain had, however precipitately and unjustly, recognized the existence of a civil war between the United States and the insurgents, and avowed a determination to remain neutral between the parties, she might, without a violation of the law of nations, commit the further injustice of allowing to such vessels of war of the insurgents as had not been built, armed, equipped, furnished, fitted out, supplied, or manned within her territory, in violation of her duty to the United States, the same rights of asylum, hospitality, and intercourse which she conceded to the vessels of war of the United States. They do, however, most confidently deny that the receipt of a commission by a vessel like the Alabama, or the Florida, or the Georgia, or the Shenandoah, exempted Great Britain from the liability growing out of the violation of her neutrality. To this point they are fortunately able to cite two from the many pertinent cases adjudicated in the Supreme Court of the United States, which show directly what the public law in this respect is understood to be, not only by the United States, but also by Spain and by Portugal. Supreme Court of the ma Trinidad and the [206] *The first is the case of the Santisima Trinidad,3 the facts of which have already been given. The property for Decision of the which restitution was claimed in this case was Spanish. United States in the The libel was filed by the Spanish Consul at Norfolk on be- cases of the Santisihalf of the owners. The capture was shown to have been Gran Para. made after a commission to the vessel, expressly recognized by the court rendering the decision. Nevertheless, restitution was decreed on the ground of an illegal increase of armament in the neutral territory after the commission. 4 The second case is that of the Gran Para, also already alluded to. The libel was filed by the Consul General of Portugal. The opinion of the court was given by Chief Justice Marshall. The facts are set forth so clearly in the opinion that no other statement is necessary. The Chief Justice, in announcing the judgment of the court, said: "The principle is now firmly settled that prizes made by vessels which have violated the acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question, therefore, is, Does this case come within the principle? "That the Irresistible was purchased, and that she sailed out [207] of the port of Baltimore, armed *and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The ves sel was constructed for war and not for commerce. There was no cargo on board but what was adapted to the purposes of war. The crew was Hansard, 3d series, vol. 174, page 1595. 2 The Schooner Exchange against McFadden et al., 7 Cranch's Reports, 116. 47 Wheaton, 471. too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailed out of the port of Baltimore. But she was not commissioned as a privateer, nor did she attempt to act as one until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed ; and as the Irresistible made no prize on her passage from Baltimore to the river of La Plata, it is contended that her offense was deposited there, and that the court cannot connect her subsequent cruise with the transactions at Baltimore. *If this were to be admitted in such a case as this, the laws [208] for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact. There was no commercial voyage, and no individual of the crew could believe there was one. Although there night be no express stipulation to serve on board the Irresistible after her reaching the La Plata and obtaining a commission, it must be completely understood that such was to be the fact. For what other purpose could they have undertaken *this voyage? Everything [209] they saw, everything that was done, spoke a language too plain to be misunderstood. * The principle re "It is, therefore, very clear that the Irresistible was armed and manned in Baltimore, in violation of the laws and of the neutral obligations of the United States. We do not think that any circumstances took place in the river La Plata, by force of which this taint was removed." The course of the French Government during the insurrection in the case of the Rappahannock, already referred to, practically cognized by France, asserted the power of the neutral to protect its violated sovereignty, even against a commissioned vessel of war. The British Government itself recognized this prinsiple when it ordered the Alabama to be seized at Nassau, and when it found fault with the Governor of the Cape of Good Hope for not detaining the Tuscaloosa at Cape Town. The principle for which the United States contend has therefore been recognized by Great Britain, Spain, Portugal, France, and the United States. Great Britain, Spain, Deposit of the of fense. It is not deemed necessary to add to the forcible views of Chief Justice Marshall in the case of the Gran Para, as to the deposit of the offense of the cruiser. The United States only ask that the same just rules which they, through their highest *judicial officer and most eminent jurist, have established for [210] offenses committed on their own soil, may be applied to the of fenses against British neutrality from which they have suffered. The |