of the United States, was so disconnected from her original illegal outfit, by the fact of her having been at Buenos Ayres during the interval, as to make it proper for the Courts of the United States to refuse to exercise jurisdiction for the purpose of restoring that prize to her original Portuguese owner? Upon the whole circumstances of the case this question was determined in the negative. The material facts being that the Irresistible was built at Baltimore, in all respects, for purposes of war; that she there enlisted a crew of about fifty men, and took in a sufficient armament for the purpose of the cruise in which she was afterwards engaged; that she went to Buenos Ayres, staid there only a few weeks, went through the form of discharging, but immediately afterwards re-enlisted, substantially, the same crew; obtained no new outfit or armament; took a commission from the Government of Buenos Ayres to cruise against Spain, but sent back that commission on the very next day after leaving the port, when the officer in command produced a wholly different commission from General Artigas, as chief of the "Oriental Republic," under which he proceeded actually to cruise. It was with reference to this state of circumstances, (so different from the facts relative to the Florida at Mobile,) that Chief Justice Marshall held that this was a colorable, and not a real termination of the original cruise.

The principle, (he said) is now finally 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 question therefore is, does this case come within the principle?

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 La Plata, it is contended that the 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 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.

It is submitted that there is nothing whatever, in the view thus taken by Chief Justice Marshall, which can have any tendency to establish the responsibility of Great Britain for captures of the Florida, made after she left Mobile, and never brought into any British port. The simple ground of the decision was that which the Chief Justice announced at the beginning of his judgment:

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 ques tion, therefore, is, does this case come within the principle?

And it was held to be within that principle, not because the offense was one which could never be "deposited," but because the "depositation" relied upon in that case was not real but only pretended.

That case, in fact, fell short of deciding so much even as this: that if a prize, taken by the Florida after her departure from Mobile, had been brought into a British port, and if the same rule as to the restitution of prizes, which is the settled and known law of the United States, had also been the settled and known law of Great Britain, such a prize

ought to have been restored to her original owners. This is the utmost extent to which the authority of the case of the Gran Para could ever be supposed to go. But the circumstances are, in all essential points, so widely dissimilar, as to make it no authority, even for that limited

purpose.

If, in such a case as that of the Florida, the neutral State were held liable for the captures made by her in her first cruise, after leaving Mobile, it seems unavoidably to follow (and this appears to be the conclusion actually insisted on by the United States) that there must be unlimited liability for all her subsequent cruises, and that the offense could never be "deposited."

But this is not only not a just inference from, it is in fact contradictory to, the doctrine to which Chief Justice Marshall has always been understood in the United States to have given the sanction of his authority in the Gran Para case. Part of the Rubric, or marginal note, prefixed by the reporter to that case, is in these words: "A bonâ fide termination of the cruise, for which the illegal armament was here obtained, puts an end to the disability growing out of our neutrality laws which does not attach indefinitely."

The Florida could not have cruised without a proper crew; it was in a port of her own country that she first obtained such a crew, and so acquired the capacity of cruising. The equipment, which she had received before reaching Mobile, was therefore only partial and incomplete. Even assuming that she obtained this equipment under circumstances which involved some failure in the use of proper diligence on the part of Great Britain, on what principle can Great Britain be charged with all her subsequent captures? Would not such a principle involve the liability of a neutral State to be charged with all captures made by a vessel which had obtained, within its territory, through some want of due diligence on the part of its authorities, any kind or degree whatever of equipment, or augmentation of warlike force, however impossible it might be to prove that such equipment or augmentation of force was the proximate cause of any of her captures, and in however large a degree other causes may have evidently contributed to her means of offense? If what was done to the Florida at Mobile had been done in a Spanish port, by the permission or culpable neglect of the authorities; if, after lying for four months in a Spanish port, she had there, for the first time, obtained a fighting crew, and had been dispatched from thence to prey upon American commerce, would it still have been contended that Great Britain, and not Spain, was liable? Or would it have been contended that both Great Britain and Spain were liable, under such circumstances, and that the liability of both was indefinite and unlimited till the conclusion of the war? Will the Tribunal give its sanction to such doctrines as these, not only without any aid from authority, but in opposition to all the light which is derivable from the reason and analogy of the doctrines of international jurisprudence, and of the jurisprudence of the United States themselves, in other cases, which ought to be governed by similar principles?

The legitimate inference, from the analogy of the law as to breach of contraband, is, that any responsibility which Great Britain may have been under as the neutral State from which the Florida was introduced into Mobile, came to its natural end when (having previously committed no act of war) she was once at home in that port, and became bona fide incorporated, within their own territory, into the naval force of the Confederate States. The legitimate inference from the doctrine of Chief Justice Marshall, in the case of the Gran Para, is, that having been once

bona fide received into Mobile, as her proper port, and having been there manned, and dispatched from thence for her subsequent cruise, au effectual line of separation was drawn, for all legal and international purposes, between everything which had occurred before she entered into that port and everything which occurred afterward; and that (no hostile cruising against the United States having taken place during the interval between her leaving Liverpool and her entrance into Mobile) Great Britain had no just cause for afterward refusing to her the ordinary immunities and privileges of a duly-commissioned ship of war of a belligerent Power, and certainly was not under any obligation toward the United States to do so, even if a different rule would have been applicable to such a ship as the Alabama, which was not dispatched for her cruise from any Confederate port.

As between Great Britain and the Florida the case stood thus. Her acquittal at Nassau was conclusive, as a judgment in rem, so as to make it unjustifiable and impossible for any British authority afterward to revive against her the causes of complaint which had occurred before that acquittal; and her subsequent reception of an armament at Green Cay, not being accompanied or preceded by the enlistment of any crew sufficient for hostilities, and not being followed by any warlike operations before her entrance into Mobile, though it was an infringement of British municipal law, was not such an offense by genera linternational law as to call for or justify war or reprisals against the Confederate States, nor such as to adhere to the ship through all subsequent circumstances. The responsibility of Great Britain to the United States, in respect of this ship, could not exceed the responsibility of the Confederate States, in respect of the same ship, to Great Britain.

35 C

ROUNDELL PALMER.

X.-REPLY OF THE COUNSEL OF THE UNITED STATES TO THE ARGUMENT OF HER BRITANNIC MAJESTY'S COUNSEL ON THE SPECIAL QUESTION OF THE LEGAL EFFECT, IF ANY, OF THE ENTRY OF THE FLORIDA INTO THE PORT OF MOBILE, AFTER LEAVING THE BAHAMAS, AND BEFORE MAKING ANY CAPTURES.

The Florida, after her illegal outfit as a ship of war in the neutral territory of Great Britain, and the completion of her armament, warlike munitions, and crew from the same neutral territory, took the seas under a Confederate commission, and after an unsuccessful attempt to add to her complement of men by violating the neutrality of Spain, slipped into Mobile by a fraudulent imposition upon the blockading vessels, which her British origin enabled her to practice. She was there impris oned four months before she was able to elude the vigilance of the blockaders, and she obtained there, it is said, some addition to the force of the crew which she had when she entered that port. Her captures were made after she left Mobile, and a question of public law is now raised upon this state of facts, to this effect: "Is the responsibility of Great Britain to the United States for the depredations of the Florida relieved by this visit of that cruiser to a Confederate port under the circumstances in evidence?" The question assumed that, but for this visit, the neutral responsibility for the acts of this cruiser would exist, and seeks to arrive at the significance, if any, of this visit in relieving the neutral from such responsibility. The Counsel of Her Britannic Majesty has discussed this question, and we now offer a brief reply to his Argument.

I. It is said that a limitation upon a neutral's responsibility for the acts of a cruiser, for which the neutral would otherwise continue to be responsible, may be found in the principle of the rule by which neutral trade in contraband of war and belligerent right to prevent it are regulated. This rule is understood to be, that the belligerent right to intercept or punish trade in contraband, carried on by a neutral, must be exercised during the guilty voyage, and that its termination ends the belligerent's redress and the neutral's exposure. The view which we take of this suggestion makes it unnecessary to consider whether the more strict or the more liberal measure of the duration of the guilty voyage is the proper one.

It seems to us that it needs but little attention to the nature of this struggle between neutral right to trade and belligerent right to restrict and defeat that trade, and to the solution of these conflicting and competing rights which the law of nations has furnished, to reject the analogy as valueless in the present discussion.

Neutral nations properly insist that their trade is not to be surrendered because of the war between the two belligerents. But they concede that the belligerent Powers, as against each other, may rightfully aim at the restriction or destruction of each other's commerce. How far the belligerent may press against his enemy's commerce, which, in turn, is also the neutral's commerce, and how much the neutral must acquiesce in its commerce being dealt with in its character of being also the enemy's

commerce, is the problem to be solved in the interest of preserving peace with the neutrals, and restricting the war to the original belligerents.

The solution arrived at, and firmly and wisely established, covers the three grounds of (1) neutral trade with ports of the enemy under actual blockade; (2) visitation and search of neutral ships to verify the property, in ship and cargo, as being really neutral; (3) the interception and condemnation of contraband of war, though really of neutral ownership and though not bound to a blockaded port. It is with the last only that we have to deal.

There were but three modes in which the consent of nations could dispose of this question of contraband trade. First, It might have been proscribed as hostile, and, therefore, criminal, involving the nation suffering or permitting it, or not using due diligence to prevent it, in complicity with and responsibility for it. This has been contended for as the true principle by able publicists, but has not obtained the consent of nations. Second, It might have been pronounced as free from belligerent control as all other neutral commerce, submitting only to verification as really neutral in ownership, and to exclusion only from blockaded ports. This has been contended for, but has not been accepted.

The only other disposition of this conflict of rights and interests at all reasonable is that which has been actually accepted and now constitutes a rule of the law of nations. This limits the right of the belligerent, and the exposure of the neutral, to the prevention of the trade in contraband by warlike force for capture, and prize jurisdiction for forfeiture. Manifestly, the natural, perhaps the necessary, limit of this right and exposure, by the very terms of the rule itself, would be flagrante delicto or during the guilty voyage. To go beyond this would, in principle, depart from the reason of the actual rule and carry you to the ground of this trade being a hostile act in the sense in which the consent of nations has refused so to regard it. But, to adhere to the principle on which the rule stands and attempt to carry its application beyond the period of perpetration, would involve practical difficulties wholly insurmountable, and encroachments upon innocent neutral commerce wholly insupportable. How could you pursue the contraband merchandise itself in its subsequent passage, through the distributive processes of trade, into innocent neutral hands? But, while it remained in belligerent hands, it needs no other fact to expose it to belligerent operations, irrespective of its character or origin. Again, how can you affect the vessel which has been the guilty vehicle of the contraband merchandise in a former voyage, with a permanent exposure to belligerent force for the original delict, without subjecting general neutral trade to inflictions, which are in the nature of forcible punishment, by the belligerent of the neutral nation, as for hostile acts exposing the neutral nation to this general punitive harassment of its trade?

It will, we think, be readily seen that this analogy to contraband trade, as giving the measure of the endurance of the responsibility of Great Britain for the hostile expedition of the Florida, is but a subtle form of the general argument, that the outfit of the Florida was but a dealing in contraband of war, and was to carry no other consequence of responsibility than the law of nations affixed to that dealing. But this argument has been suppressed by the Rules of the Treaty, and need be no further considered.

II. The criticism on the celebrated judgment of Chief Justice Marshall, in the case of the Gran Para, does not seem to shake its force as authoritative upon the precise point under discussion, to wit, whether a visit to a belligerent port terminated the neutral's duty and responsi