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functions and powers of the District Attorneys and Marshals of the United States, and on the practical rules by which the exercise of their functions and powers has always been governed.
On the 4th September, 1816, Mr. Glenn (District Attorney for Maryland) wrote to the Spanish Consul, (Chacon,) in answer to certain representations made by him:
I must beg leave to suggest that my powers are merely legal, and not political. I have already the power, when I am officially informed, in a legal manner, of any violation of the laws of the United States, to institute a prosecution against the offenders, and conduct the same to a final issue; and I hope I shall always be ready and willing to go thus far on all proper occasions. If an armament be fitting out within the district of Maryland for the purpose of cruising against the subjects of the King of Spain, it is a breach of our laws, and the persons concerned therein are liable to punishment; but before I can take any legal steps in the affair, the facts of the case must be supported by affidavit taken before some Judge or Justice of the Peace, and when that is done, I will, without delay, proceed to call upon the offenders to answer for a breach of our laws. If, there fore, you will be pleased to furnish me with the names of any witnesses who can make out the case which you have stated, I will at once have them summoned, if within the reach of the process of our Judges or Justices, and attend to taking their depositions, or, if you have it in your power to bring within this district any persons who can testify on the cases referred to, I will be prepared to receive the statements on oath as the foundation for a judicial inquiry into the conduct of the offenders. I shall here take occasion to say that I cannot proceed in the cases you have mentioned upon the mere suggestion of any person, unless that suggestion be accompanied by an affidavit. (Documents accompanying the Counter Case of the United States, part ii, pages 39, 40.)
On the 25th February, 1817, the same District Attorney wrote to Mr. Monroe, Secretary of State:
You are well aware I cannot proceed to arrest persons and proceed under the laws of our country, for a breach of those laws, upon a mere suggestion alone; but whenever a suggestion shall be accompanied by anything like proof, I will take great pleasure in prosecuting the offenders to punishment, and their property to condemnation, in all proper cases. (Ibid., pages 55, 56.)
On the 28th March, 1817, Mr. Rush (Acting Secretary of State) wrote to Mr. Mallory, Collector of Customs at Norfolk, directing him to make inquiry into the cases of two armed vessels, the Independence of the South and the Altravida, which had then lately arrived at Norfolk from voyages, in the course of which they had cruised against, and made captures of, vessels or property belonging to the subjects of the King of Spain.
If [said Mr. Rush] there be any proof of their having committed, or of their intending to commit, an infraction of any of the laws or Treaties of the United States, you will cause prosecutions, subject to the advice of the Attorney of the United States, to be instituted against all parties concerned, or such other legal steps taken as events may make necessary and justice require.
And on the same day, Mr. Rush also wrote to Mr. MacCulloch, Col· lector of Customs at Baltimore, directing inquiries to be made as to another vessel called the Congress:
If [he said] there be any sufficient proof that this vessel either has committed, or that she intends to commit, a breach of any of the laws or Treaties of the United States, you will advise the District Attorney, and cause prosecutions to be forthwith instituted against all parties concerned, and such other steps taken, whether with a view to prevent or punish offenses, as justice requires, and the laws will sanction.
On the 11th of April, 1817, Mr. Collector Mallory, having been requested by Don Antonio Villalobos to detain the Indepencia del Sud and the Altravida, and certain goods (in fact, prize goods) landed from that vessel, for alleged violation of the Act of Congress of 1794, answered by the request
That I may have the aid of every light to guide me which facts can afford, and as the allegations made by you, in an official form, must be presumed to be bottomed on positive facts which have come to your knowledge, you will have the goodness, I trust, to furnish me with evidence of their existence in your possession.
The Spaniard replied, (12 April, 1817:)
With regard to the evidence you require, I will not hesitate to say that, as the facts I have stated are matter of public notoriety, known to everybody, and I had no reason to suppose you were ignorant of them, I did not deem it incumbent upon me to add any proof to the simple narration of them; and I was confident that, by going on to point out to you the stipulations and laws which are infringed in consequence of these facts, you would think yourself authorized to interfere in the manner requested.
He then mentioned several circumstances, justifying (as he thought) a strong presumption of illegality against those vessels, as "known facts," and added:
If these public facts, falling within the knowledge of every individual, require more proof than the public notoriety of them, I must request to be informed as to the nature of that proof, and also whether you are not warranted to act upon just grounds of suspicion, without that positive evidence which is only necessary before a Court of Justice. Mr. Mallory rejoined, (14 April, 1817:)
From the view I have taken of the facts, as now stated by you, which it is to be presumed are to be regarded as specifications under the more general charges set forth in your letter of the 10th instant, I must really confess I do not at present see grounds sufficient to justify the steps you require me to take against the armed vessels now in this port, and the merchandise which has been permitted to be landed from them and deposited in the public store.
He then observed that, if the facts alleged as to the original equipment of the Independencia were to be taken as true, they did not clearly or unequivocally prove that her original equipment in, or dispatch from, the United States was unlawful; and, with respect to a subsequent alleged enlistment of men in the port of Norfolk, he stated that he was engaged in inquiries, in order to be satisfied upon that point before the vessel was permitted to sail, and to be governed by the result, “although," he said, "it does not appear to be perfectly certain that such an augmentation of their force is interdicted by the Act of Congress of the 3d of March last, which, being a law highly penal in its nature, will admit of no latitude of construction. (British Appendix, vol. iii, pages 112-114.)
This correspondence has the more interest, as relating to the case, in which the legality of the dispatch of the Independencia (fully armed and equipped) from an American port to Buenos Ayres, for sale there to the belligerent Government of that revolted colony, and the illegality of her subsequent augmentation of force, became the subject of decision by Mr. Justice Story in the well-known prize-suit of the Santissima Trinidad.
On the 16th September, 1817, the Spanish Consul, Mr. Stoughton, wrote to Mr. Fisk, (District Attorney for New York,) stating a case of illegal enlistment of men, then alleged to be in progress on board a Venezuela privateer schooner called the Lively, or the Americano Libre:
Now, [he said,] as there must be provisions in the laws and Treaties of the United States vesting an authority in some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, I make this application to you, most urgently requesting you to take whatever measures may be necessary immediately, in order to prevent the departure of the above vessel, at least until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning. Indeed, if an inquiry were instituted, I am induced to believe the above brig would be found to be a pirate.
In support of this application, two depositions of persons, who stated that attempts had been made to induce them to enlist on board the vessel in question, were sent on that and the following day. Mr. District Attorney Fisk replied, on the 17th September, 1817:
I have duly received your notes of yesterday evening and of this day, and have
referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the Collector in detaining the vessel. The aggression is to be punished in the ordinary mode of prosecuting those who are guilty of misdemeanors. Oath is to be made of the facts by the complainant, who enters into a recognizance to appear and prosecute the offenders before any process can issue. This oath being made and recognizance taken, the Judge of the Circuit Court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the Attorney of the United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have I the power to issue any process to arrest and detain the vessel in question, unless by the direction of an Executive officer of the United States. By adverting to the statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on board, or for hiring or retaining another person to enlist: the punishment is personal to the offenders, It is impracticable for me, or for any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an illegal transaction. (British Appendix, vol. iii, pp. 119, 120.)
This precedent will, it is trusted, be borne in mind whenever the Arbitrators may have occasion to consider the questions connected with the enlistment of certain men on board the Shenandoah on the night of the departure of that vessel from Melbourne in 1864.
On 30th September, 1820, Mr. Secretary Adams wrote thus to the Portuguese Minister, the Chevalier de Serra:
The judicial power of the United States is, by their Constitution, vested in their Snpreme Court and in Tribunals subordinate to the same. The Judges of these Tribunals are amenable to the country by impeachment, and if any Portuguese subject has suffered by the 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.
The Government of the United States have neither countenanced nor permitted any violation of their neutrality by their citizens. They have, by various and successire acts of legislation, manifested their constant earnestness to fulfill their duties toward all parties to that war. They have repressed every intended violation of them which has been brought before their Courts, and substantiated by testimony, conformable to principles recognized by all Tribunals of a similar jurisdiction. (British Appendix, vol. iii, pp. 157, 158.)
On the 14th May, 1869, Mr. Hoar, Attorney-General of the United States, thus instructed Mr. Smith, District Attorney for Philadelphia: Whenever complaint is made against any vessel on trustworthy evidence sufficient to establish before a Court of Justice probable cause to believe that such vessel is forfeitable for a riolation of the Neutrality Laws, you are instructed to file a libel, and arrest the vessel. (Documents accompanying the Counter Case of the United States, Part iii, p. 743.)
On the 17th May, 1869, Mr. Pierrepoint, District Attorney of New York. wrote to Mr. Attorney-General Hoar with respect to certain vessels called the Memphis and Santiago, accused of a hostile destination against Cuba:
There is no evidence, as yet, on which to detain them. I would suggest that if the Span ish Minister would instruct the Spanish Consul here to take some pains and collect some ervdence relating to these matters, and bring it to my notice, I shall act with the greatest promptness.
On the 11th May, 1869, Attorney-General Hoar, forwarding this letter to Mr. Secretary Fish, said:
The several District Attorneys are instructed that, whenever sufficient evidence is mad known to them to establish before a Court of Justice probable cause to believe that any resse is forfeitable for a violation of the neutrality laws, they are to file a libel and arrest the vessel. (Cuban Correspondence, 1866-71, presented with the American Counter Case, pp. 58, 59.)
On the same day, Mr. Attorney-General Hoar sent, as general instruc tions to the United States Marshals, a copy of a letter addressed on the 20th of May to the Marshal for the Southern District of New York, which contained the following passage:
It is not deemed best, at present, to authorize or require you to employ detectives for the special purpose of discovering violations of the provisions of this Act, (the Act of Congress
of 1818;) but you and your deputies are expected to receive all information that may be offered, and to be attentive to all matters of suspicion that may come to your knowledge; and, in cases where your action is required, to be vigilant, prompt, and efficient. I will thank you to communicate to me, from time to time, any information that you may deem trustworthy and important.
On the 28th December, 1870, Mr. Fish, Secretary of State, wrote thus to Mr. Roberts, the Spanish Minister:
The undersigned takes the liberty to call the attention of Mr. Roberts to the fact that a District Attorney of the United States is an officer, whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal proofs, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a Consul, but upon proof submitted according to the forms required by law. (British Counter Case, page 46.)
These extracts are conceived to show that the principles and rules of practice of the Executive authorities of the United States, as to the evidence necessary to constitute "reasonable ground for belief," that any illegal equipment has been made or is being attempted within their jurisdiction, and to call for "diligence" in the use of the preventive powers of their law, have always been, and still are, essentially the same with those on which the Government of Great Britain acted during the transactions which are the subject of the present inquiry.
35. Of the sugges
tion, that the belet
of the consuls of the United States, British ports, should
be treated as
After these instances of the practice of the United States in similar cases, it seems hardly necessary to recur to the extraordinary suggestion of Mr. Dudley, adopted in the American Ar. gument, (page 44,) that whenever the American Consul at Liverpool told the British authorities that "he had no doubt" about the character of a particular vessel, they evidence. ought to have accepted this as sufficient till the contrary was shown, and not to have thrown the burden of proof upon the persons giving the information; that "the Government ought to investigate it, and not call upon us for proof." It was indeed quite right and proper that the officers of the British Government should investigate every case of which they were so informed for themselves, as well as they were able; and this is what they actually did on all occasions. But the British authorities at Liverpool had too frequent experience of the error and fallacy of Mr. Dudley's conclusions, drawn from the association with particular vessels of firms or persons known or believed to be in the Confederate interest, to make it possible for them, as reasonable men, to act upon Mr. Dudley's charges as sufficient to throw the burden of proof upon the parties accused, even if such a principle had not been opposed both to British and to American law. In August, 1861, the American Consul at Liverpool, through Mr. Adams, denounced the Bermuda as an "armed steamer," which was "believed to be about to be dispatched with a view of making war against the people of the United States," and which was "ostensibly owned by Fraser, Trenholm & Co." (British Appendix, vol. ii, page 133.) Mr. Adams, writing to Mr. Seward on the 30th August, 1861, said: "No stronger case is likely to be made out against any parties than this. The activity of our Consuls, Messrs. Wilding and Davy, furnished me with very exact information of all the circumstances attending the equipment of this vessel, and yet Her Majesty's Government, on being apprised of it, disclaimed all power to interfere." (American Appendix, vol. i, page 518.) The Bermuda, nevertheless, turned out to be an ordinary blockade-runner. In March and April, 1863, a ship called the Phantom, building at Liverpool by W. Miller & Son, for Fraser, Trenholm & Co., and supplied with engines by Fawcett, Preston & Co., at the launch or trial trip, of which Captain Bullock, Mr. Tessier, and Mr. R. Hamilton, &c., were present; and another ship called the Southerner, building at Stockton for Fraser, Tren
holu & Co., and meant to be commanded by Captain Butcher, were in like manner denounced. Affidavits of the connection of these firms and persons with the ships were furnished; and the accusations were pressed with great pertinacity, even after Mr. Squarey, the legal adviser of Mr. Dudley, at Liverpool, had admitted that (as to the Phantom there was no case. About the Southerner, Mr. Dudley affirmed, from the beginning, with the utmost positiveness, that "there was no doubt.“ And yet it turned out that the charges as to both these vessels also were wholly groundless, notwithstanding the interest in them of those firms and persons, whose very names seem to have been supposed by the Consuls of the United States to be sufficient prima facie evidence of a violation of the law. The Phantom proved to be a blockade-runner, and the Southerner to be a passenger-vessel, whose first employ ment was to carry Turkish pilgrims in the Mediterranean. (British Appendix, vol. ii, pages 167–209.)
36. The preventive
ican law tried by the
With respect to the value of the suggestions, in the Argument of the United States, that certain parts of their administrative efficacy of the Amer machinery (such as the employment of District Attorneys. test of practical re- and the encouragement offered to informers by the law, which gives them half the forfeitures obtained by their means) are more effective than the practice of Great Britain, under which the Attorney-General is (in England) the only public prosecutor. and no share of any forfeiture under the Foreign-Enlistment Act is given to informers; light may also be derived from the preceding extracts. On these, however, and all similar points, (giving to the authorities of the United States the credit which they claim for using such preventive powers as they possessed in good faith, and with what they deemed due diligence for their intended purposes,) no evidence can be more instructive than that of practical results.
Between the years 1815 and 1818, (notwithstanding everything which the Executive of the United States could do to the contrary,) twentyeight vessels were armed or equipped in, and dispatched from, the ports of the United States, or within their jurisdiction, for privateering against Spain, viz, seven at New Orleans, one at Barrataria in the Gulf of Mexico, two at Charleston, two at Philadelphia, twelve at Baltimore, and four at New York. (See the list furnished by the Spanish Minister, Appendix to British Case, vol. iii, page 132.)
In the years 1816 to 1819, twenty-six ships were armed in and dispatched from Baltimore alone for privateering against Portugal. (Letter from Chevalier de Serra, November 23, 1819. Ibid., page 155.)
In the period between 1816 and 1828, sixty Portuguese vessels were captured or plundered by privateers armed in American ports, and the ships and cargoes appropriated by the captors to their own use. (Letter from Senhor de Figaniere e Morao. Ibid., page 165.)
The Proclamation of President Van Buren, of the 5th of January. 1838, stated that information had been receeived that, "notwithstanding the Proclamation of the Governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the presence of the civil officers of the United States, arms and munitions of war and other supplies have been procured by the (Canadian) insurgents in the United States; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms under the command of a citizen of the United States, and that they were con stantly receiving accessions and aid."