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 inerchants 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.'

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 com1 Appendix to British Case, vol. iii, p. 155.

Case of the United States, p. 143.

3 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

I Appendix to British Case, vol. iii, p. 157.

sale. The Government of the United States might, by the exercise of due diligence. have become acquainted with the facts, and prevented the privateers from sallying forth.

The authorities of the State of Maryland were evidently negligent in permitting these warlike preparations in the port of Baltimore, and as no claim can be made by Portugal against that State, all complaints founded upon the negligence of the State authorities must, of course, be made against the Government of the United States, and this Government is, therefore, as the undersigned conceives, liable for that neglect.

2

To this dispatch no answer appears to have been made. The Govern ment of the United States had reiterated its refusal to refer the claims to a commission, objecting that they were "obsolete." It was, however, at the same time, pressing against Portugal a claim for compensation on account of an American privateer, destroyed in the port of Fayal in 1814-a claim, therefore, which was of still earlier date than those of Portugal, and was afterward referred to arbitration and rejected.

Correspondence be

tween

The complaints and expostulations of the Spanish minister, Don Luis de Onis, were still more frequent and more vehement than the United those of the minister of Portugal; but the substance of States and Spain. them was the same. The notoriety of the acts complained of, the openness with which they were done, the toleration of them by the authorities, the refusals of the collectors of customs to act on evidence within their reach, the difficulty which the Spanish consuls experienced in obtaining any testimony against unlawful speculations in which so many persons were interested, were strongly and repeatedly insisted on. These grievances were finally summed up in a note addressed to Mr. J. Q. Adams on the 16th of November, 1818, in the course of the negotiations for the treaty of the succeeding year:

Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several ports of the Union against the vessels and property of the Spanish nation; and it is equally so that all the legal suits hitherto instituted by His Catholic Majesty's consuls, in the courts of their respective districts, for its prevention or the recovery of the property when brought into this country, have been, and still are, completely unavailing. The artifices and evasions by means of which the letter of the law bas on these occasions been constantly eluded, are sufficiently known, and even the combination of interests in persons who are well known, among whom are

some holding public offices. With a view to afford you and the President more [35] complete demonstration of the abuses, aggressions, and piracies *alluded to, I

inclose you correct lists, extracted from authentic documents deposited in the archives of this legation, exhibiting the number of privateers, or pirates, fitted out in the United States against Spain, and of the prizes brought by them into the ports of the Union, as well as of those sent to other ports, together with the result of the claims made by the Spanish consuls in the courts of this country. Among them you will find the case of two armed ships, the Horatio and Curiazo, built at New York, and detained by His Majesty's consul there, on the ground of their having on board thirty pieces of cannon concealed, with their carriages, and a crew of 160 men. On which occasion it was pretended that it could not be proved that these guns were not an article of commerce, and they finally put to sea without them, the extraordinary number of officers and crew passing for passengers. The number of privateers, or pirates, fitted out and protected in the ports of this republic, as well as of the Spanish prizes made by them, far exceeds that contained in the within lists, but I only lay before your Government those of which I have certain and satisfactory proofs. The right of Spain to an adequate indemnity for all the spoliations committed by these privateers, or pirates, on the Crown and subjects of His Catholic Majesty, is undeniable; but I now submit it to your Government only to point out the extreme necessity of putting an end to these continued acts

1 Appendix to British Case, vol. iii, pp. 165, 166.

Mr. Clayton to Senhor de Figanière e Morão, March 30, 1850.—Appendix to British Case, vol. iii, p. 163.

An instructive specimen will be found in the correspondence which accompanies the note of Don Luis de Onis to Mr. J. Q. Adams, of November 2, 1817, (see Appendix to the British Case, vol. iii, p. 118.) It does not appear that any answer was returned by the Secretary of State to this application.

of hostility and depredation, and of cutting short these enormous and flagrant abuses and evils, by the adoption of such effectual precautions and remedies as will put it out of the power of cupidity or ingenuity to defeat or elude them. In vain should we endeavor amicably to settle and accommodate all existing differences, and thus establish peace and good understanding between the two nations, if the practice of these abuses, and the course of these hostilities and piracies on the commerce and navigation of Spain should, as heretofore, continue uninterrupted in the United States. From the tenor of the documents now inclosed, and of the reflections suggested by the very nature and state of things, the President cannot hesitate to assent to my proposal on this subject; and, as the Congress is now in session, I feel assured that the proper opportunity is afforded for the adoption of the necessary measures I have alluded to, and which I solicit as an essential basis of securing and maintaining a mutual friendship and good understanding between the two nations.1

The list of privateers fitted out in American ports, which was inclosed in the above note, included twenty-eight vessels of different classes. Her Majesty's government may be permitted here to recall the definition of due diligence presented to the arbitrators in the Case of the United States:

The United States understand that the diligence which is called for by the rules of the treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject, and to the dignity and strength of the power which is to exercise it; a diligence which shall, by the use of active vigilance, and of all the other means in the power of a neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall, in like manner, deter designing men from committing acts of war upon the soil of the neutral against its will, and thus possibly dragging it into a war which it would avoid; a diligence which prompts the neutral to the most ehergetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it. No diligence short of this would be due; that is, commensurate with the emergency, or with the magnitude of the results of negligence.

The British government may be permitted to express their belief that if this definition had been contended for in 1818 by Spain and Portugal, it would have been deemed by the Government of the United States to require much qualification.

It is alleged in the Case of the United States that, by the treaty of the 22d February, 1819, compensation was made by the United States to Spain for injuries similar to those which they assert that they have sustained from Great Britain. No compensation was paid to Spain. The Government of the United States appears to confound a reciprocal renunciation, in mass, of disputed claims not ascer tained, and not admitted to be valid, with a payment, by set-off, of claims the validity of which is disputed on neither side. By Article IX of that treaty, for the purpose of putting an end to all differences between the two powers, each agreed to renounce all claims upon the other, the renunciation including, on one side, "all claims of citizens of the United States upon the government of Spain arising from unlawful seizures at sea, and in the ports and territories of Spain or the Spanish colonies;" and, on the other, all like claims of Spanish subjects upon the Government of the United States. On neither side was there an admission that the claims of the other were valid. On the part of the Government of the United States there was certainly no admission that it had been guilty of negligence. On the contrary, when, in the preceding negotiations, the Spanish government had asked that the

American Government should pledge itself to take some measures [36] in order to remedy "the abuses *which, contrary to the law of nations, and contrary to what is expressly stipulated in the treaty

ཏན་།

It

of 1795, daily occur in some ports of the Union, in consequence of the vague and arbitrary interpretation which it seems the measures until now adopted are susceptible of, and by means of which the law is eluded"-in short, to amend its neutrality law-the refusal of the American Government was conveyed in these terms: "Of the many complaints which you have addressed to this Government in relation to alleged transactions in our ports, the deficiency has been, not in the meaning or interpretation of the treaty, but in the proof of the facts which you have stated, or which have been reported to you, to bring the cases of complaint within the scope of the stipulations of the treaty." The complaint was, that many acts had been committed which were violations of international law as well as of the treaty. The answer was, that no sufficient proof had been given of these violations. may be observed that the claims of the United States against Spain were founded on complaints very different, and apparently of very inferior force, to those urged by Spain against the United States. It may be further remarked that the treaty of 27th October, 1795, here referred to, contained, with other provisions for the protection of Spanish commerce, an agreement that no citizen or inhabitant of the United States should apply for or take any commission or letters of marque for arming any ship to act as a privateer against Spanish subjects or their property, from any state at war with Spain, and that any person doing this should be punished as a pirate. The obligations of the United States to Spain did not rest alone on the general principles of international law, but on the express stipulations of a treaty.

4. LATER VIOLATIONS OF THE AMERICAN NEUTRALITY LAWS.

Later violations of the American trality laws.

As the United States have appealed to their history as illustrating their conception of neutral duties, and of the measure of diligence which those duties require, it is necessary to refer to some later passages in that history, showing the impunity with which armed expeditions have been repeatedly, and with little or no attempt at concealment, organized within the United States, and dispatched thence against the territories of friendly nations.

Filibustering expe

ditions.

The expeditions to which Her Majesty's government desire more particularly to call the attention of the arbitrators are:

The filibustering attacks under Lopez upon Cuba;

Those under Walker upon Mexico and Central America;
The Fenian raids upon Canada.

EXPEDITIONS OF LOPEZ AGAINST CUBA.

The facts with regard to the expeditions undertaken against Cuba by Lopez from the United States are as follows:

On the 11th August, 1849, the President of the United States issued a proclamation stating that "there is reason to believe that Against Cuba, 1830. an armed expedition is about to be fitted out in the United States, with an intention to invade the island of Cuba or some of the provinces of Mexico," and that "the best information which the Executive has been able to obtain points to the island of Cuba as the object of this expedition ;" and calling upon "every officer of this Government,

1 Don Luis de Onis to Mr. J. Q. Adams, October 24, 1818, (appendix to British Case, vol. iii, p. 129;) Mr. J. Q. Adams to Don Luis de Onis, October 31, 1818, (ibid., vol. iii, p. 130.)