for an emergency that might arise in its Foreign Relations. It had neither navy, nor force that could be converted into one, and no army on the sea-coast; and it was obliged to rely upon, and did actually call out, the irregular militia of the States to enforce its orders.

Under the directions of M. Genet, privateers were fitted out, manned, and commissioned, from *Charleston and other ports, [128] before he reached Philadelphia, and prizes were brought in by them. On the 22d of April, 1793, M. Genet not having yet reached Philadelphia, President Washington issued his celebrated proclamation, the first of its kind, in which he declared that "the duty and interest of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial toward the belligerent Powers;" and he warned all persons against "committing, aiding, or abetting hostilities against any of the said Powers."1

The news of the coming of M. Genet had preceded his arrival at Philadelphia. On the 17th of May, 1793, Mr. Hammond, the then British Minister, made complaint of his acts, and called attention to the fact that privateers were fitting in South Carolina, which he conceived to be "breaches of that neutrality which the United States profess to observe, and direct contraventions of the Proclamation."

He invited the Government to "pursue such measures as to its wisdom may appear the best calculated for repressing such practices in future, and for restoring to their rightful owners any captures which these particular privateers may *attempt to bring into any of the [129] ports of the United States."2

Two days before the receipt of that representation, Mr. Jefferson had already complained to the French Minister of these proceedings, and M. Genet, on his arrival, claimed to justify himself by the existing treaties between France and the United States.

Other cases subsequently occurred, in which Mr. Hammond intervened; for an account of which the Tribunal of Arbitration is respectfully referred to Lord Tenterden's memorandum.

The subject of Mr. Hammond's complaints and his demand for the restoration of the captured vessels were under consideration until the 5th of June, 1793, when answers were given simultaneously to M. Genet and to Mr. Hammond.

The former was told that the United States could not tolerate these acts of war within their territories. The latter was told that effectual measures would be taken to prevent a repetition of the acts complained of; but as to restoring the prizes, it could not be done for two reasons: first, because if commissions to the privateers were valid and the captures were legal, the Executive of the United States had no control over them; and if they were illegal the owners had a sufficient *remedy in the national courts; secondly, because the acts com- [130] plained of had been done at a remote port, without any privity of the United States, "impossible to have been known, and therefore impossible to have been prevented by the Government."3

It is worthy of note that the owners did resort to the courts, and that prizes taken by these privateers were restored by judicial process.

4

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 duty of the United States not only to repress them in future, but to restore prizes that might be captured by vessels 1 Vol. IV, page 94. 3 Vol. IV, page 97. 4 Dana's Wheaton, section 439, note 215, page 536. This note, which contains an exhaustive review of the American policy, may be found in Vol. VII, page 11.

2 Vol. IV, page 95.

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.

The reasons for this course are stated in a letter from Mr. Jefferson to Mr. Hammond, dated the 5th of September, 1793.1

2

The United States Government also, on the 4th of August, 1793, issued instructions to collectors of the customs, which were in[131] tended to enforce *the President's Proclamation of April 22. We have the authority of Lord Tenterden for saying that the result of the publication of those instructions was, that the system of privateering was, generally speaking, suppressed. 3

From this examination, it appears that a well conceived and extended system of violating the neutrality of the United States, when they were weak and the powers confided to their Executive were untried, was put in operation in April by the representative of one of the powerful nations of Europe, and was suppressed before August without legislation; and also 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 subsequently agreed between the two Governments that in cases where restitution of the prizes should be impossible, The Treaty of Nov the amount of the losses should be ascertained by a method 19, 1794, 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 examination of these claims extended [132] *over a period of some years, and the amounts of the ascertained

commissioners appointed under it.

losses were eventually paid by the United States to Great Britain. In the case of the "Jamaica," before the commission, under the 7th article of the treaty of 1794, the capturing vessel was al- Construction of leged to have been armed in the United States, but the that Treaty by the prize, (the Jamaica,) with her cargo, was burned by the captors, and never brought within the jurisdiction of the United States. Upon this bare case, without any allegation of permission or neglect by the Government of the United States as to the arming of the French cruiser, the advocate for the claimants contended that the law of nations obliged the United States to make compensation. The claim was rejected; "the board [one gentleman only dissenting] were of opinion that the case was not within the stipulation of the article under which the commissioners act.”

A rehearing being granted and counsel heard, Mr. Gore delivered the opinion sustaining the original determination. After reviewing British precedents cited by the counsel for the claimants, as supporting his view of international law, Mr. Gore says:

The counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer [133] having been *originally armed in the United States; but as there

is not the smallest evidence to induce a belief that in this or in any other case the Government permitted, or in any degree connived at, such arming, or failed to use all the means in their power to prevent such equip

1 Vol. IV, page 100. The United States also refer to Mr. Jefferson's letter to Mr. Hammond, of November 14, 1793.

2 Vol. IV, page 97.

3 Vol. IV, page 101.

Treaty concluded between the United States and Great Britain, at London, November 19, 1794, commonly known as "Jay's Treaty." See United States Statutes at Large, Vol. VIII, page 116.

ment, there is no ground to support a charge on the fact that the armament originated in their ports."1

All these steps prior to 1794 were taken by the United States under the general rules of International Law, without the aid of a local statute, in order to perform what Mr. Jefferson called "their duty as a neutral nation to prohibit such acts as would injure one of the warring powers.' In 1794, however, the Congress of the United States, on the application of Great Britain, passed a statute prohibiting such acts, under heavy penalties. 3

The neutrality laws

enacted at the request

The general provisions of the United States act of 1818 of the United States (Which is still in force) are set forth in note 1, on page 114. of Great Britain. This act was passed at the request of the Portugese Government. The act of 1838 was enacted on the suggestion of Great Britain. In the year 1837 a formidable rebellion against Great Britain broke out in Canada. Sympathizers with the insurgents begin ning to *gather on the northern frontier of the United States, Mr. [134] Fox the British Minister at Washington, "solemnly appealed to the Supreme Government promptly to interpose its sovereign authority for arresting the disorders," and inquired what means it proposed to employ for that purpose. The President immediately addressed a communication to Congress, calling attention to defects in the existing statute, and asking that the Executive might be clothed with adequate power to restrain all persons within the jurisdiction of the United States from the commission of acts of the character complained of. Congress, thereupon, passed the act of 1838. Thus Great Britain once more asked the United States to amend their neutrality laws, in British interest, so as to give more power to the Executive, and the request was complied with.

Case of the bark Maury.

In the year 1855, Great Britain being then at war with Russia, it was supposed by the British Consul, at New York, that a vessel called the Maury, which was being innocently fitted out at New York for the China trade, was intended as a Russian privateer. The British Minister at Washington at once called the attention of Mr. Marcy, the then Secretary of State, to this vessel. The affidavits which he inclosed for the consideration of the Secretary of State fell far, very far short of the evidence which Mr. Adams submitted to [135] Earl Russell in regard to the Liverpool cruisers. The whole foundation which the British Minister furnished for the action of the United States was the "belief" of the Consul, his lawyer, and two police officers, that the vessel was intended for Russian service. This was communicated to the Government of the United States on the 11th of October. Notwithstanding the feebleness of the suspicion, the prosecuting officer of the United States was, on the 12th of October, instructed by telegraph to "prosecute if cause appears," and was at work on the 13th in order to prevent a violation of the sovereignty of the United States to the injury of Great Britain. The proceedings given at length in the accompanying volumes show with what rapidity and zeal the investigation was made, and that the charge was at once proved to be unfounded. In all this correspondence and these precedents, the folrecognized by the lowing principles appear to have been assumed by the two two Governments. Governments:

Principles thus

1. That the belligerent may call upon the neutral to enforce its municipal proclamations as well its municipal laws.

12d Vol. Mms. Opinions, Department of State.

2 Mr. Jefferson to M. Genet, June 5, 1793. Jefferson's Works, Vol. III, page 572. 3 Mr. Canning's speech, cited ante, page 107.

4 Vol. IV, pages 53-62.

2. That it is the duty of the neutral, when the fact of the inten [136] ded violation of its sovereignty is *disclosed, either through the agency of the representative of the belligerent, or through the vigilance of the neutral, to use all the means in its power to prevent the violation.

3. That when there is a failure to use all the means in the power of a neutral to prevent a breach of the neutrality of its soil or waters, there is an obligation on the part of the neutral to make compensation for the injury resulting therefrom.

Obligation to make compensation for injuries.

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. The United States also point to the similar compensation

made by them to Spain in the treaty of 1819, for similar injuries [137] inflicted on *Spanish commerce during the War of the Independence of the Spanish American Colonies, as showing the sense of Spain on this point.

Correspondence

In the course of the long discussions between the two Governments on the Alabama claims, Great Britain has attempted to justify its course by a reference to the conduct of the United between the United States toward Portugal between 1816 and 1822.1

States and Portugal.

These several replies of Mr. Adams amply defended the course of the United States in that affair. From the replies and from the official documents referred to in them, it would appear that in the year 1850 the United States had brought to the point of settlement a long-standing claim against Portugal, for the destruction of the American armed brig General Armstrong, in the harbor of Fayal, in the year 1814. They were at the same time pressing some other claims against Portugal, and were conducting a correspondence with the Portuguese Legation at Washington, growing out of the seizure of a Portuguese slaver.2

The Portuguese Government, as an offset to these claims of the United States, revived some exploded claims of Portugal against the United States, for alleged violation of neutrality, that had slumbered for nearly

thirty years. These are the claims referred to by Earl Russell in [138] his note to *Mr. Adams of May 4, 1865,3 and his note to the same

of August 30, 1865,* and his note to the same dated November 2, 1865.5 Lord Russell asserts that the complaints of Portugal were more frequent and extended to a larger amount of property after 1818 than they had done before. Mr. Adams denies this allegation, and his denial is supported by the evidence in possession of the Governmeut of the United States.

6

The facts appear to be these: On the 20th December, 1816, the Portuguese Minister informed the then Secretary of State (Mr. Monroe) of the fitting out of privateers at Baltimore to act against Portugal, in

1 Vol. III, pages 556–560.

2 Executive Document No. 53, 32d Congress, 1st session.

3 Vol. III, page 525.

5 Vol. III, page 584.

4 Vol. III, page 548.

6 Vol. III, page 621.

*

*

case it should turn out that that Government was at war with the "selfstyled Government of Buenos Ayres." He further stated that he did not make the application in order "to raise altercations or to require satisfaction," but that he solicited "the proposition to Congress of such provisions by law as will prevent such attempts for the future," being "persuaded that my [his] magnanimous Sovereign will receive a more dignified satisfaction, and worthier of his high character, by the enactment of such laws by the United States." Mr. Monroe replied, on the 27th of the same month, "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 sub. [139] ject, 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, * and effectually to guard against the danger in regard to the vessels of your Sovereign which you have anticipated." The act of 1817 was passed and officially communicated to the Portuguese Minister on the 13th of March, 1817. On the 13th of May, 1817, the Portuguese Minister informed the Secretary of State that although "the law passed at the last session of Congress obviated a great part of the evils" of which he complained, he feared there would be a lack of vigilance on the part of some of the officials, and he asked for special instructions to them. On the 8th of March, 1818, he complained to Mr. John Quincy Adams, then Secretary of State, of the capture of "three Portuguese ships, captured by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors;" and he asked for satisfaction and indemnification for the injury. The note making this complaint contained neither proof of the allegations in the note as to the fitting out of vessels in the United States, or as to their being manned by Americans, nor indications from which the United States might have discovered *those facts for themselves. The [140] Secretary of State, therefore, in reply to such an allégation, very properly stated the fact that the United States had "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 were at peace,” and had "faithfully carried into execution the laws to preserve inviolate the neutral and pacific obligations of the Union ;" and therefore could not consider themselves "bound to indemnify individual foreigners for losses by captures." It will not escape the notice of the Tribunal that Mr. Adams calls attention to the distinction between the national obligations under the law of nations and the duty of the Government to execute the municipal law; and that he grounds his refusal upon the fact that both have been complied with.

The Portuguese Minister next complains (October 15, 1818) that a privateer is fitting out in Baltimore, and the Secretary of State orders a prosecution and asks for the names of the witnesses, and it appears that before November 13th the Portuguese Minister is informed that the grand jury have found a bill against the accused. On the 14th of November the Portuguese Minister sends to the Secretary of State depositions and the names of witnesses, and informs him that he is alarmed at the "thick crowd of individuals who *are en- [141] gaged in this iniquitous business," and that "great care has been taken to intercept the notice of such facts from the knowledge of the Executive." Mr. Adams, on the 18th of November, informs the Minister that the evidence has been placed in the hands of the prosecuting attorney of the United States. It thus appears that the second com