[24] *Part III. Precedents appealed to by the United States.

Precedents appealed to by the United States. In aid of its view of neutral duties and liabilities, the government of the United States has appealed to several precedents recorded in history. These are—

A correspondence which passed between the governments of Spain and Sweden, in 1825, relative to a sale of certain Swedish vessels of war, which the Spanish government suspected of having been bought for the service of Mexico.
The correspondence between the British minister and the Government of the United States, in 1793, respecting the depredations practiced on British commerce by privateers under the French flag, fitted out in American ports; the measures adopted in consequence by the Government of the United States; and the treaty of 19th November,. 1794.
The complaints and claims urged by Spain and Portugal against the United States, on account of like depredations on the subjects and shipping of those two powers, by privateers fitted out within the United States; and the subsequent treaty with Spain of 22d February, 1819.

Some of these transactions have been so insufficiently presented in the Case of the United States that it becomes necessary to recall them, so far as may be necessary to set the facts in their true light. It will then be seen that, far from lending any support to the claims of the United States, they, on the contrary, militate against those claims.

It will be necessary, also, since the Government of the United States-has invoked against Great Britain the history of American neutrality, to make some additions to a narrative which would otherwise be very imperfect.

1. Case of the Swedish ships.1

This affair calls for scarcely any remark on the part of Great Britain.

Case of the Swedish ships, 1825. It was a sale, by a neutral government, of a ship of the line and two frigates; and there was reason to suspect that the trading firm who had become the nominal purchasers had bought them for the service of the republic of Mexico, then at war with Spain. The contract of sale contained a clause, enabling either party to rescind it on payment of a stipulated sum. The transaction was uncompleted, and still within the power of the Swedish government. The government of Spain remonstrated warmly, and induced the ministers of other powers resident at the Swedish court to support its representations. [Page 233] The government of Sweden insisted on its right to complete the safe At the end of four months, after much correspondence, the contract was rescinded on the request of the purchasers, who alleged that the vessels had been detained till too late in the year by reason of the recall of certain officers and seamen of the Swedish navy, who had previously obtained leave to enter the merchant service, and were to be employed on board of them. The stipulated payment was excused; and the Swedish governmnent undertook to reimburse the purchasers for money laid out on the repair and equipment of the ships.

That the government of Sweden was right in not completing the sale, after circumstances of suspicion had been brought to its knowledge by Spain, there can be no doubt. It has always been conceded that a sale by a neutral government to a belligerent, directly or indirectly, of arms or munitions of war, or ships of war, stands on ground quite different from the mere forbearance or omission to prohibit such transactions on the part of private individuals who are its subjects. In the latter case no duty is violated. But a government which sells or furnishes arms, gives or lends money, to a belligerent, becomes to that extent a participant in the war.1

[25] *In the case of the Anglo Chinese flotilla, which has been already stated to the arbitrators, it will have been seen that, under somewhat similar circumstances, Her Britannic Majesty’s government did not hesitate to do far more than the government of Sweden. The differences are that the vessels of the flotilla had not been the property of the British government, and had only been officered and manned by its permission; that no circumstances of suspicion had been suggested to the government, but merely an apprehended possibility; that Great Britain acted immediately, without any correspondence or delay; and that the sacrifice she undertook to make amounted, not, as in the Swedish case, to about 60,000 francs, but to above 2,500,000.2

Great Britain has certainly nothing to fear from this comparison.

The purchase by Her Majesty’s government, at the price of £220,000, of the two iron-clads seized in 1863, has been mentioned in the British Case, and it has been stated (as the fact is) that in agreeing to this purchase the government was mainly actuated by anxiety to prevent by any means in its power, however costly, vessels of so formidable a character, constructed in a British port, from passing, directly or indirectly, into the hands of a belligerent.3

The case of the old dispatch-boat Victor, sold out of Her Majesty’s navy in 1863, will be hereafter referred to.4 There were in that case no circumstances to excite suspicion, and no representation was made by the minister of the United States to Her Majesty’s government. When it was discovered, however, that this vessel had passed into the hands of a belligerent, and that endeavors had been made to fit her out as a cruiser, orders were immediately given that no more ships should be sold out of the navy during the continuance of the war. This decision was followed in the case of two vessels, (the Reynard and Alacrity,) for which an advantageous offer was made to the admiralty in December, 1863, and which it was desirable to dispose of. “It would be better,” Earl Russell wrote, “at the present time not to sell any vessels to private firms, as it [Page 234] is impossible to obtain any sufficient assurance in regard to what might i>e done with vessels when sold out of the navy.”1

2. Violations of American neutrality in 1793 and 1794.

2. Violations of American neutrality in 1793 and 1794. In the year 1793 the neutrality of the United States was infringed, not only by captures, within their territorial waters, of British vessels by hostile armed ships, but by repeated and successful attempts to fit out privateers for cruising, under the French flag, against Great Britain, then at peace with the United States and at war with France.

It must be here observed that the example of this mode of carrying on maritime war had been set by the United States themselves. The agents who were sent to France in 1776 for the purpose of gaining for the United Colonies the aid and support of that power in their struggle for independence, succeeded in procuring and arming many privateers, which they dispatched from French ports, with orders to cruise against Great Britain, and from which British commerce suffered severely.

It was natural to expect that when, in February, 1793, the French Republic declared war against Great Britain, France in her turn should try to imitate and profit by that example. On the 8th of April, 1793, a French envoy arrived at Charleston; he immediately proceeded to fit out privateers, and four were fitted out, armed, manned, and commissioned within American jurisdiction before the end of the month. These acts were open and undisguised. Houses of rendezvous were opened at Charleston for collecting crews, the vessels were suffered to pass the fort under a written permission from the governor of South Carolina, and there was reasonable ground to believe that, though nominally owned by Frenchmen, they were really the property of American citizens. These vessels afterward brought in prizes, which were condemned by pretended prize courts, held within the jurisdiction of the United States.

Applying to the United States the stringent rule which that power now seeks to apply to Great Britain, the British government might undoubtedly have insisted that these were violations of neutrality which the American Government was bound to prevent; that no imperfections in its municipal law or executive organization could be pleaded in its defense; and that the United States were liable for all the injuries which the failure to prevent them might occasion to Great Britain.

[26] The British minister, however, limited himself to the request that the American Government would “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 the ports of the United States.”2 *In the month of May, one of the privateers unlawfully fitted out at Charleston, (the Citoyen Genêt,) came into the port of Philadelphia, which was the seat of the Government of the United States, bringing a prize. The Citoyen Genêt was not seized or detained by the Government of the United States.

After some correspondence with the French envoy, Mr. Jefferson, then Secretary of State, informed him on the 5th June, 1793, that, in the opinion of the President, “the arming and equipping vessels in the [Page 235] parts of the United States to cruise against nations with which they were at peace was incompatible with the territorial sovereignty of the United States; that it made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should”—not be detained in, but—“depart from the ports of the United States.”1

The British minister was on the same day informed that “the moment it was known, the most energetic orders were sent to every State and port in the Union, to prevent a repetition of the accident,” and that persons accused of being participators in the act had been committed for trial. The restitution of the prizes was refused:

The principal agents in this transaction were French citizens. Being within the United States at the moment a war broke out between their own and another country, they determined to go into its defense; they purchase, arm, and equip a vessel with their own money, man it themselves, receive a regular commission from their nation, depart out of the United States, and then commence hostilities by capturing a vessel. If under these circumstances the commission of the captors was valid, the property, according to the laws of war, was by the capture transferred to them, and it would be an aggression on their nation for the United States to rescue it from them, whether on the high seas or on coming into their ports. If the commission was not valid, and consequently the property not transferred by the laws of war to the captors, then the case would have been cognizable in our courts of admiralty, and the owners might have gone thither for redress. So that on neither supposition would the executive be justifiable in interposing.2

The American Government thus refused to take any measures even for the restitution of prizes actually brought into their ports by privateers equipped and commissioned therein. The acts complained of, it was added, could not be imputed to the Government which could not have known, and therefore could not have prevented them.

The British minister, in reply, (7th June, 1793,) represented that these acts were notorious and unconcealed, and well known to the local authorities. He expressed his concern at the decision at which the Government had arrived, and added:

For all these reasons, notwithstanding the deference which he shall ever preserve for the sentiments of this Government, the undersigned conceives himself justified in having entertained a confidence that the Government of the United States would not only have repressed this insult offered to its sovereignty, but also that the aggression on the subjects of the Crown of Great Britain would have been repaired by the restitution of vessels thus captured.3

At the date of Mr. Jefferson’s letter, and for a considerable time afterward, it was a disputed question whether the courts of the United States had jurisdiction to inquire into captures made under the circumstances above mentioned, or to order restitution; and this question remained unsettled until the jurisdiction was affirmed by a judgment of the Supreme Court, delivered on the 18th February, 1794. Owners of vessels unlawfully captured were in the mean time debarred from any redress; and to refuse restitution, unless through the medium of the courts, was to refuse it altogether.

After this a vessel was fitted out and armed as a French privateer in the port of Philadelphia itself, under the name of the Little Democrat. The Government did not seize or detain her; it relied on an expectation that the French envoy would not permit her to sail. She sailed, however, and engaged in depredations on British commerce.

[Page 236]

[27] On the 4th August, 1793, circular instructions were sent to the collectors of customs within the United States, intended, though not exclusively intended, to provide against violations of neutrality. According to these instructions, vessels originally fitted out by either belligerent in ports of the United States were not thenceforth to have asylum in any district of the United States. Any vessel contravening the rules laid down was to be refused a clearance until she should have complied with what the governor of the State might decide in reference to her. Care, however, was to be taken in this not necessarily or unreasonably to embarrass trade or vex any of the parties concerned. In order to guard against contraventions, the condition as to military equipment of every vessel arriving in a port of the United States was to be ascertained by accurate survey made on her arrival and again before her departure; but no attempt was to be made to inspect “any *vessel of war in the immediate service of the government of a foreign nation.” A schedule of rules was appended to these instructions; and it is material to observe what these rules permitted and what they prohibited in the ports of the United States, disregarding only some specific limitations which had reference to treaties then existing between the United States and France. They permitted—

Equipments of merchant vessels by either belligerent, “purely for the accommodation of them as such.”
Equipments of vessels of war in the immediate service of the government of either belligerent, which, if done to other vessels, would be of a doubtful nature, as applicable either to commerce or war.
Equipments of a like nature done to vessels fitted for merchandise and war, whether with or without commissions;
They permitted also armed vessels of either belligerent, which should not have infringed any of its rules, to “engage or enlist their own subjects or citizens, not being inhabitants of the United States.”

They prohibited “equipments of vessels in the ports of the United States which are of a nature solely adapted for war.”1

Any kind of equipment, therefore, which might be applicable either to war or to commerce, was declared lawful, whether done to a vessel fitted for war and commerce, or to a vessel actually commissioned as a public ship of war. The only question was as to the nature of the equipment. If it was of such a character as to be applicable solely and exclusively to war, it was forbidden; if not, it was not forbidden.

These rules have always been referred to with approval and respect by American writers on international law.

Notwithstanding the instructions, privateers continued to be fitted out in American ports, and privateers which had been previously fitted out appear to have been suffered to enter, refit, and depart unmolested. Thus, on the 29th December, 1793, the British minister, Mr. Hammond, wrote to Mr. Jefferson:

The danger to be apprehended from these last-mentioned vessels (privateers illegally fitted out in ports of the United States) still continues to exist to a very alarming degree; since, notwithstanding the repeated assurances I have received from the Federal Government of its determination to exclude those privateers from any future asylum in its ports, and the sincerity of its desire to enforce this determination, I have reason to infer that, in other quarters, means have been successfully devised either to elude its vigilance, or to render nugatory its injunctions. This inference arises from, the information I have received—that the privateer Le Citoyen Genêt, fitted out at Charleston, was, on the 21st of August, permitted to return to the port of Philadelphia for the second time, to remain there some days, and then to proceed to sea for the purpose [Page 237] of commencing, new depredations, which, as it appears from the public prints, she is now prosecuting in the adjacent seas; that Le Petit Democrat, and La Carmagnole, both fitted out in the Delaware, were permitted to enter the port of New York, and to continue therein unmolested during a great part of the months of August, September, and October last; that the latter vessel is still in that port, and that the former, having sailed from thence in company with the French fleet, under the charge of Admiral Sercy, and having separated from it at sea, proceeded first to Boston, and afterward returned for a second time to New York, wherein she at present remains.1

On the 5th November, 1794, he wrote to Lord Granville:

In conformity to the intention expressed in my dispatch No. 31, I have now the honor of transmitting to your lordship a list, compiled from returns sent to me by His Majesty’s consuls, of such British vessels as have been brought as prizes into ports of the United States, since the commencement of the present hostilities to the beginning of the month of August. On this list it is proper for me to remark, that the value of a considerable proportion of the British vessels captured, and of their cargoes, is omitted in the consular returns; that of those of which the value is mentioned, though it be much underrated, the amount is £195,548 sterling; and that of seventy-five British prizes, forty-six were made by privateers fitted out in ports of the United States.

The depredations of these last-mentioned vessels, which seemed to have been in some measure suspended by the appearance of a British naval force in these seas, have, by recent accounts from Charleston, recommenced. I likewise learn from Baltimore that several vessels are now arming in that port, for the purpose of proceeding to Port de Paix, in Saint Domingo, or to Guadaloupe, and of there procuring French commissions. Though, by an act passed in the last session of Congress, this be a punishable offense, the difficulty of obtaining legal proof of the intention of the persons arming such vessels is a sufficient objection to the institution of any judicial proceedings thereon; and it is useless to address any complaints upon subjects of this nature to the General Government, since the investigation of them is commonly committed to the governors of the respective States, of whom a great majority is so hostile to Great Britain as readily to connive at measures the execution of which may be injurious to her interests.2

The British vice-consul at Charleston wrote as follows, on the 28th November, 1794, to the consul, (who was then absent on leave:)

[28] *Notwithstanding the laws of the United States are so guarded against any breach of neutrality, the French here evade them, and arm as many privateers as ever. Yesterday I acquainted the collector of the Federal customs in this port, who is directed by the Secretary of the Treasury to inspect all vessels in this place, and see that none of them in any way whatever commit a breach of the laws—

That the brig Cygnet, fitted for war in this harbor, but afterward permitted to clear out as a merchantman, having been disarmed and her ports nailed up, had her guns sent after her in the privateer L’Ami de la Pointe à Petre, took them on board off this bar, mounted them, knocked out her ports, and proceeded to sea, fully equipped as a privateer.

That the schooner St. Joseph Sugna cleared for Port au Paix as a Spanish prize; had no guns mounted when she dropped down to the port, nor any appearance in her hull of having been fitted for war, although her rigging had every apparent mark of the privateer; had previously to her going over the bar her quarter-deck off, port-holes -cut, and guns mounted.

That there was a brigantine fitting at Gaillard’s wharf, which came in from Port au Paix, pierced for twelve guns, with a high quarter-deck, the bulk-head of which was -cut away, and beams laid level with the main deck, which, from every appearance, is meant to proceed in the same manner the above schooner did, by cutting away the old quarter-deck after she drops down, and getting her guns sent after her.

That a new prize schooner, called the Swallow, was fitting in same manner, and a Providence sloop, with many vessels of a larger size, among which is the old Delaware frigate that was sold after the peace, and fitted for a South Sea whaler. Also, a sloop lying on the stream, with a large quantity of gunpowder on board, supposed to be for the purpose of supplying the privateers.3

The Cygnet cleared for Port au Paix with a trifling cargo, there got a commission, and on her return made several prizes, which she sent into Charleston, and of which the local court refused to decree restitution.

The dispatches of the British consuls at Charleston and elsewhere in [Page 238] 1794, 1795, and some subsequent years, repeatedly refer to privateers fitting out or increasing their armament in ports of the United States, the difficulty of obtaining evidence against them, and the absence of effectual means of repression. Thus the consul at New York, on the 30th November, 1795, after a complaint of a privateer (the Coquette) fitted out in New York, which had taken four prizes, writes:

When such vessels are fitted out in America in a secret manner, it is difficult to procure proof against them, and I apprehend the law prohibiting the practice is not adequate to the purpose, nor is it enforced with sufficient activity.1

And, on the 27th April, 1796, the vice-consul at Charleston wrote:

Inclosed you will, however, receive the state of them, (the proceedings in prize causes before the Supreme Court,) as handed me by His Majesty’s chargé d’affaires in Philadelphia, from which it would appear nothing but the ownership being in American citizens will cause a restoration of prizes, and that the law of the 5th June, 1794, passed in Congress, as well as the general law of nations, so far as respects the arming, equipping, augmenting, or altering the ships of war or privateers of any power at war in neutral ports, are entirely set aside in the courts of this country. Indeed, Mr. Chase, one of the Federal judges, gave it as his opinion that the citizens of the United States had a right to build and equip ships of war as an article of trade, and to dispose of them to either of the belligerent powers without any breach of their neutrality, provided none of those were in any manner concerned in them after they became cruisers.2

It has thus been seen that privateers were fitted out, armed, and commissioned in American ports. These privateers com mitted considerable depredations on British shipping, and took many prizes. Let us now see what was done as to the restitution of the prizes, and compensation for the injuries thus sustained by Great Britain.

The final judgment of the American Government as to what was right to be done in this matter was conveyed in a letter which Mr. Jefferson addressed to the British minister, dated 5th September, 1793. The substance of this letter was, that the Government recognized an obligation to restore prizes actually brought into its ports after the 5th June, 1793, if captured by privateers which had been unlawfully fitted out within its jurisdiction, or to use all the means in its power to do so. If, in any case, it had forborne or should forbear to do this, it would hold itself bound to make compensation to the owners.3 It recognized no other obligation. We shall presently see how this engagement was understood.

[29] The promise or engagement contained in this letter was expressly confined to prizes brought in after the 5th June, 1793. The line of distinction thus drawn, though intelligible as between the United States and France, because this was the date of Mr. Jefferson’s prohibitory letter to M. Genet, was, so far as the rights of Great Britain were concerned, purely arbitrary, the prizes brought in before that date being as unlawful, according to the law of nations, as those brought in after it, and the right to restitution or compensation being *precisely the same. The American Government, however, refused to make either restitution or compensation for prizes brought in previous to the time at which the resolution that they were to be treated as illegal was formed and made known to the French envoy.

The British minister as to this wrote as follows, on the 7th June, 1794 to the then Secretary of State, Mr. Randolph:

From the same paper, it is also evident that I have never acquiesced in the propriety of the determination of this Government not to restore vessels captured previously to the 5th of June, as well for the reasons which I have there stated, as because I have never perfectly comprehended the principles which could legalize the prizes antecedently [Page 239] to that period, and invalidate those which were made subsequently to it. The list of those prizes annexed to the memorial will evince that (whatever may have been conceived by some) their value was not inconsiderable; but even if their amount had been less considerable, the question in a national point of view could not have been affected by that circumstance.1

It may, perhaps, be supposed that the owners of these vessels, though they did not obtain restitution, would be awarded compensation under Article VII of the treaty of 1794. But it will presently be seen that this was refused to them.

The cases in which the Government had “forborne” to make restitution were those of three British merchant-ships which had been captured by privateers unlawfully fitted out, and brought by the captors, into American ports after the 5th June, 1793, but which the Government, from motives of policy, was unwilling to take forcibly out of the captors’ hands. No provision having been made by Congress for the compensation promised in the case of these three vessels, the owners of these and of a fourth, which was admitted to stand on the same ground, had no other resource than to carry their claims before the commissioners afterward appointed, which they accordingly did.

By the seventh article of the treaty of 19th November, 1794, after a recital that certain British subjects complained “that, in the course of the war, they have sustained loss and damage by reason of the capture of their vessels and merchandise, taken within the limits and jurisdiction of the States and brought into the ports of the same, or taken by vessels originally armed in ports, of the said States,” it was agreed that, “in all such cases where restitution should not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793, (a copy of which was annexed to the treaty,”) the complaints should be referred to commissioners, who were empowered to award compensation. Decisions of the commissioners under the Vllth Article of the-Treaty of 1794.

Various claims were made before the commissioners so appointed. Three leading decisions pronounced by them will be found in the appendix to this Counter Case. By these decisions it was ruled—

That, according to the true construction of Article VII of the treaty, coupled with Mr. Jefferson’s letter, no claim could be made on account of a capture made before the 5th June, 1793. Hence compensation was refused in the case of a British vessel which had been captured on the 8th May by the Sans Culottes, a privateer fitted out at Charleston, and had been openly brought by her captors into the port of Philadelphia.2
That no compensation could be claimed for captures made by vessels illegally fitted out within the jurisdiction of the United States unless the prizes had been subsequently brought into an American port. The owners, [Page 240] therefore, of a vessel which the captors had destroyed at sea were entitled to no compensation.1
That where the prize had been brought in, no compensation could be claimed if the claimant had not taken proceedings in a district court of admiralty, and proved his case there by sufficient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing a judgment if obtained.2

[30] *The real effect, then, of the engagement entered into by the Government of the United States as to restitution or compensation, appears to have been this. The owner of a vessel captured by a ship which had offended within American waters against the prohibitions of the United States Government, was at liberty to obtain, if he could, by proceedings in a court of admiralty, a decree for restitution, and the Government undertook in that case either to use all the means in its power to enforce the decree should it be resisted, or else to indemnify him for the loss.3 If he could not obtain a decree, he had no redress; [Page 241] if the means used by the Government proved ineffectual, he had likewise no redress.1 He was equally without redress if his vessel had been plundered or destroyed at sea and not brought into an American port. If the capture was made before a certain date arbitrarily fixed, then, although the prize had been brought within the jurisdiction of the United States, the Government would do nothing to secure him either restitution or indemnity.

This is one of the two precedents on which the United States rely as establishing the proposition “that when a neutral fails to use all the means in its power to prevent a breach of the neutrality of its soil or waters in any of the foregoing respects, the neutral should make compensation for the injury resulting therefrom,”2 and as justifying the claims it now makes against Great Britain. What the other is we shall see presently.

Let us now observe the terms in which this transaction has been represented to the arbitrators:

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 thus illegally fitted out, manned, equipped, or commissioned within the waters of the United States, of, if unable to restore them, then to make compensation for them.3

[31] From this examination it appears * * 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 amount of the losses should be ascertained by a method 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.4

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.5

Her Majesty’s government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages.

One of the vessels equipped and armed for warlike use within the territory of the United States was, after leaving it, commissioned as, a public ship of war of the French Republic, under the name of the Cassius. The subsequent history of the ship has been often referred to in argument, and may be briefly noticed here.

Case of the Cassius. The Cassius had sailed from the Delaware River in January, 1795, [Page 242] after an order to seize her had been issued, avoiding detention partly by artifice, and partly by threatening an armed resistance to the United States authorities. She went to Saint Domingo, was there formally transferred to the French government, and commissioned under the command of an American officer. She returned in August to Philadelphia. While she was in that port proceedings were instituted against her and her commander by the owners of an American vessel which had been captured by her at sea, and condemned by a French prize-court. The owners alleged that the capture was illegal, and claimed damages. The subsequent proceedings and correspondence are too long for recital, and may be read in well-known books.1 It is sufficient to mention:

That the French minister laid claim to the ship as a public ship of war, and refused to be a party to any proceedings in the local courts, or to admit in any way their jurisdiction. He refused also to furnish any proof of her alleged transfer to his government, or of her character as a public ship, beyond his own declaration, given to the Executive as an act of courtesy, that she had been so commissioned at a certain date.
That the Government of the United States, while affirming, as an unquestioned fact, (which had been incidentally proved on the trial of a person concerned in it,) that the Cassius had been armed and equipped within the United States, in violation of their neutrality, did not claim any right to seize and detain her, but, on the contrary, instructed its law officer to present to the court a “suggestion” (as it was technically called) that, as a public ship, she ought to be released as exempt from civil proceedings, and her commander discharged.
That, on the release of the ship, the French minister was informed by the Secretary of State that she was ready to be delivered to his order.

The French minister, however, who had previously ordered her to be disarmed, refused to receive her, and she lay unclaimed for two years, at the end of which she was sold for a trifling sum by order of the Government, after a prior notification to the French consul-general, who had answered that his government had given him no authority in the matter.

3. Violations of American neutrality during the war carried on by Spain and Portugal against the Spanish-American colonies.

3. Violation of Americ n neutrality during the war carried on by Spain and Portugal against the American colonies.
During this war the ports of the United States were again used, and on a still larger scale, for fitting out privateers against nations with which the Republic was at peace. The vessels so fitted out were numerous, and they appear to-have been for the most part owned, as well as commanded and manned, by citizens of the United States. The object of these ventures was plunder; the men employed in them were under little or no discipline or control; and they sometimes degenerated into actual piracy, from which, indeed, they do not seem to have been far removed. On more than one occasion the courts of the United *States had to determine whether the captain and crew of the so-called privateer had been engaged in a bona-fide exercise of the jus belli, though under a commission obtained from au unrecognized government, or were, under [Page 243] the color of such a commission, mere robbers on the high seas; and, more than once, persons so tried were condemned to suffer death as pirates.1

Correspondence between the United States and Portugal. Repeated and earnest remonstrances on this subject were, during several years, addressed to the Government of the United States by the ministers of Spain and Portugal. The complaints of Portugal extended over four years, from 1816 to 1820. An abstract of them will he found in a dispatch addressed by Earl Russell to Mr. Adams, and dated 30th August, 1865.2 The Portuguese minister was repeatedly told, in answer, that the Government of the United States could only exercise the powers with which it was invested by the law; and he was told that, before prosecutions could be instituted, a list of the persons chargeable should be furnished, together Avith evidence to support the charges. This correspondence has been referred to, but very inaccurately, in the Case of the United States. Thus, a note of the 8th March, 1818, addressed by the Portuguese minister to Mr. J. Q. Adams, the Secretary of State, is mentioned with the following comment:3 “The note making this complaint contained neither proof of the allegations in the note as to the fitting out of the vessels in the United States, as to their being manned with Americans, nor indications from which the United States could have discovered those facts for themselves.” The note in question, which was very short, contained the following passage: “An extract of the documents that prove these facts I have the honor of inclosing in the annexed paper. The documents themselves are at your disposition when required.”4 But Mr. Adams did not ask for the documents. He contented himself with answering:

The Government of the United States having 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 are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can, in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved.

The documents to which you refer must, of course, be ex parte statements, which in Portugal or in Brazil, as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction, and found, upon judicial inquiry, to have been taken in the manner represented by your letter. By the universal laws of nations, the obligations of the American Government extend no further.5

“The United States,” wrote Mr. Adams on the 30th September, 1820, “had repressed every intended violation” of neutral duties “which had been brought before their courts, and substantiated by testimony conformable to principles recognized by all tribunals of similar jurisdiction.”6 They had also enacted more stringent laws. But it had been represented by [Page 244] 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. Correa de Serra, the grievances of Portugal were recapitulated as follows:

[33] 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 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 merchants 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.1

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.”2 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 commission; [Page 245] 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 statements:

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.

[34] 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 [Page 246] 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.1

To this dispatch no answer appears to have been made. The Government of the United States had reiterated its refusal to refer the claims to a commission, objecting that they were “obsolete.”2 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 between the United States and Spain. The complaints and expostulations of the Spanish minister, Don Luis de Onis, were still more frequent and more vehement than those of the minister of Portugal; but the substance of 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,3 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:

[35] 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 has 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 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 1 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 [Page 247] 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 energetic 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 X3revent it. No diligence short of this would be due; that is, commensurate with the emergency, or with the magnitude of the results of negligence.2

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.

[36] It is alleged in the Case of the United States3 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 ascertained, 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 in order to remedy “the abuses *which, contrary to the law of nations, and contrary to what is expressly stipulated in the treaty [Page 248] 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.”1 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. It 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 neutrality laws.
Filibustering expeditions.
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.

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:

Against Cuba, 1850. On the 11th August, 1849, the President of the United States issued a proclamation stating that “there is reason to believe that 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, [Page 249] civil or military, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the performance of our sacred obligations to friendly powers.”

Lopez’s first expedition, 1850. The Spanish adventurer, Lopez, whose preparations for a maranding invasion of Cuba, with a view to its annexation to the United States, had given rise to this proclamation, continued them undeterred. On the 7th May, 1850, he left New Orleans in a steamer with about 500 men, accompanied by two other vessels, and, on the 17th, landed at Cardenas, a small town on the northwest side of the island. Lopez occupied the town, but shortly afterward troops arrived from Havana, and he was compelled to re-embark, and escaped to the United States.

On the 27th May Lopez was arrested; but, no delay being granted by the district judge to procure evidence against him, he was discharged, amid the cheers of a large crowd.

On the 15th July, forty-two of the persons who had been engaged with him in the attempted invasion, and who had been taken prisoners, were liberated by the Spanish authorities, and were taken to Pensacola by the United States ship Albany.

[37] *On the 21st July the grand jury at New Orleans found a true bill against Lopez and fifteen others, for violating the act of 1818. The American Government, however, failed in making out its case against one or two of the parties, and finally abandoned the prosecution.1

No sooner was Lopez at liberty, than he set to work to organize another expedition, of which an account is given by the President of the United States in his message to Congress of the 2d of December, 1851:

Since the close of the last Congress, certain Cubans and other foreigners resident in the United States, who were more or less concerned in the previous invasion of Cuba, instead of being discouraged by its failure, have again abused the hospitality of this country by making it the scene of the equipment of another military expedition against that possession of Her Catholic Majesty, in which they were countenanced, aided, and joined by citizens of the United States. * * * Very early in the morning of the 3d of August a steamer, called the Pampero, departed from New Orleans for Cuba, having on board upward of 400 armed men, with evident intentions to make war upon the authorities of the island. This expedition was set on foot in the palpable violation of the laws of the United States. Its leader was a Spaniard, and several of the chief officers, and some others engaged in it, were foreigners. The persons composing it, however, were mostly citizens of the United States.* * * The steamer in which they embarked left New Orleans stealthily and without a clearance. After touching at Key West, she proceeded to the coast of Cuba, and on the night between the 11th and 12th of August landed the persons on board at Playtas, within about twenty leagues of Havana. The main body of them proceeded to, and took possession of, an inland village, six leagues distant, leaving others to follow in charge of the baggage, as soon as the means of transportation could be obtained. The latter having taken up their line of march to connect themselves with the main body, and having proceeded about four leagues into the country, were attacked, on the morning of the 13th, by a body of Spanish troops, and a bloody conflict ensued; after which they retreated to the place of disembarkation, where about fifty of them obtained boats and re-embarked therein. They were, however, intercepted among the keys near the shore by a Spanish steamer cruising on the coast, captured, and carried to Havana, and after being examined before a military court, were sentenced to be publicly executed, and the sentence was carried into effect on the 16th of August.* * * According to the record of the examination, the prisoners all admitted the offenses charged against them, of being hostile invaders of the island. At the time of their trial and execution the main body of the invaders was still in the field, making war upon the Spanish authorities and Spanish subjects. After the lapse of some days, being overcome by the Spanish troops, they dispersed on the 24th of August; Lopez, their leader, was captured some days after, and executed on the 1st of September. Many of his remaining followers were killed, or died of hunger and fatigue, and the rest were made prisoners.

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But what gives a peculiar criminality to this invasion of Cuba is, that under the lead of Spanish subjects, and with the aid of citizens of the United States, it had its origin, with many, in motives of cupidity. Money was advanced by individuals, probably in considerable amounts, to purchase Cuban bonds, as they have been called, issued by Lopez, sold, doubtless, at a very large discount, and for the payment of which the public lands and public property of Cuba, of whatever kind, and the fiscal resources of the people and government of that island, from whatever source to be derived, were pledged, as well as the good faith of the government expected to be established. All these means of payment, it is evident, were only to be obtained by a process of bloodshed, war, and revolution. None will deny that those who set on foot military expeditions against foreign states by means like these are far more capable than the ignorant and the necessitous whom they induce to go forth as the ostensible parties in the proceeding. These originators of the invasion of Cuba seem to have determined, with coolness and system, upon an undertaking which should disgrace their country, violate its laws, and put to hazard the lives of ill-informed and deluded men. You will consider whether future legislation be necessary to prevent the perpetration of such offenses in future.

walker’s expeditions against mexico and central america.

The spirit of reckless adventure which the Government of the United States had been unable to repress in 1851 and 1852 found vent in the following year in another direction.

Walker’s expeditions against Mexico and Central America, 1853, 1855, 1857, 1858, 1859, and 1860. The leader of the new enterprise was a citizen of the United States named Walker, who put himself at the head of a band of “filibusters,” as they were termed, and determined on the conquest of the Mexican possessions in Lower California.

Against Mexico, 1853. The attempt was made in October, 1853, by an expedition from San Francisco. The filibusters seized the town of La Paz, killed seven of its defenders, and wounded others, and committed various excesses. They were re-enforced by another expedition, which sailed in the Anita from San Francisco in December, but were eventually driven out of the country.

[38] The disturbed state of Central America made it the next tempting prey, and schemes were openly planned in the United States by so-called “transit” and “emigration” companies, for taking forcible possession of it. Walker was again put in command, and sailed from San Francisco on the 4th of May, 1855, with his filibusters. He arrived at Realejo on the 15th of June, and, after various adventures, during which he assumed the *title of President of Nicaragua, and was recognized in that capacity by the United States representative, he was surrounded at Rivas by the native forces in May, 1857. Through the mediation of the commander of the United States ship of war Saint Mary’s, he was allowed to surrender unmolested, and to be conveyed away on board that vessel, with the remnant of his followers.

On reaching the United States, he began to recruit for a fresh expedition, and his preparations became so notorious as to call for the following circular to the district attorneys and marshals from General Cass, the United States Secretary of State:

Department of State,
Washington, September 18, 1857.

Circular requiring the local authorities to use due diligence to prevent these expeditions. From information received at this Department, there is reason to believe that lawless persons are now engaged, within the limits of the United States, in setting on foot and preparing the means for military expeditions to be carried on against the territories of Mexico, Nicaragua, and Costa Rica, republics with whom the United States are at peace, in direct violation of the sixth section of the act of Congress approved 20th April, 1818; and under the eighth section of the said act it is made lawful for the President, or such other persons as he shall empower, to employ the land or naval forces of the United States, and the militia thereof, “for the purpose of preventing the carrying on [Page 251] of any such expedition or enterprise from the territories or jurisdiction of the United States.”

I am, therefore, directed by the President to call your attention to the subject, and to urge you to use all due diligence, and to avail yourself of all legitimate means at your command, to enforce these and all other provisions of the said act of 20th April, 1818, against those who may be found to be engaged in setting on foot or preparing military expeditions against the territories of Mexico, Costa Rica, and of Nicaragua, so manifestly prejudicial to the national character, and so injurious to the national interests.

And you are also hereby instructed promptly to communicate to this Department the earliest information you may receive relative to such expeditions.

In October, 1857, Lord Napier, Her Majesty’s minister at Washington, warned General Cass that he had been informed that more than 2,000 men had been enrolled for the invasion of Central America, funds had been subscribed to the amount of $250,000, arms had been purchased, and overtures were being made to proprietors of shipping for the transport of the force to the scene of action.1

On the 10th of November, Walker was arrested at New Orleans on a charge of violating the neutrality laws of the United States. He was held to bail in $2,000 (about £400) to appear on the 11th for examination, and he went to sea on the following morning. He embarked, with 300 unarmed followers, in the passage-boat from New Orleans to Mobile, and in Mobile Bay the party were met by a small steamer named the Hicks, and were by it transferred to the Fashion, a river vessel of greater capacity, with about fifty recruits, who joined them from the city of Mobile. The United States Government telegraphed to the Federal authorities at New Orleans to hire a steamer for the pursuit of the expedition, and empowered them also to use the steam revenue-cutter (if there was one on the station) for the purpose. Lord Napier asked General Cass whether any armed steam-vessel of the national navy had been ordered to proceed on this duty, and was told in reply that there was no such vessel at the disposal of the administration. Walker succeeded in effecting a landing for his band, who occupied Fort Castillo, but was himself intercepted by the commodore in command of a United States squadron, and taken to Aspinwall in a ship of war, whence he returned to the United States. It does not, however, appear that any legal proceedings were taken against him for his open defiance of the law. If so, they could not have been very efficacious, as he set to work to prepare for another expedition on a larger scale, and, in May, 1858, the Presidents of Nicaragua and Costa Eica appealed to the protection of international law and of France, England, and Sardinia in an official decree:

Rivas, le 1er max 1858.

Nous, présidents des deux républiques de Nicaragua et de Costa Rica:

Filibustering expedition against Central America. Considérant qu’une nouvelle invasion de flibustiers américains menace de nouveau l’Amérique Centrale au préjudice de toutes leslois divines et humaines:

Considérant que l’Amérique Centrale, épuisée par trois ans de guerre, est dans l’impuissance de se défendre sans le concours de l’Europe;

Considérant qu’une délibération commencée des deux gouvernements de Nicaragua et Costa Rica, a mis solennellement les deux républiques sous la protection de la France, de l’Angleterre et de la Sardaigne;

Considérant, enfin, que le péril est imminent, et qu’il est urgent de la conjurer sans attendre l’effet des mesures que ces trois puissances protectrices jugeront à propos de prendre:

Donnons pleins pouvoirs à M. Félix Belly de réclamer en notre nom le concours immédiat de tons les bâtiments de guerre européens qu’il pourra rencontrer;

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[39] *Le chargeons spécialement de solliciter l’envoi à San Juan del Norte d’un ou de deux bâtiments de la station française des Antilles;

Et mettons les deux républiques de Costa Rica et de Nicaragua et l’Amérique Centrale toute entière sous la garantie du droit des gens européens, et de la législation spéciale édictée contre les pirates et les boucaniers.

Lord Napier, in the note to General Cass, previously referred to, had commented on the ruinous consequences to those nations of the filibustering attacks to which they were exposed from the United States.

“It is obvious,” he said, “that the most comprehensive reconciliation of Costa Rica and Nicaragua, accompanied by the re-establishment of the transit service by a respectable company, under the auspices of the United States or England, or both, would still be inoperative for the welfare of those countries if they should continue to labor under apprehensions of invasion. It is superfluous to enlarge upon the calamities which the states in question have experienced from civil war and foreign adventurers. Of the native population not less than 40,000 are computed to have perished in the conflicts of the last two years, while more than 6,000 strangers have sacrificed their lives in the prosecution of criminal or visionary aims. The destruction of property, the suspension of industry, the sacrifice of civilization, virtue, and happiness, the diffusion of wrong and suffering incidental to such a struggle, are more easily imagined than described.”

General Cass, in a note to Mr. Lamar, the representative of the United States in Central America, dated the 25th of July, 1858, defended the action of the Government and its officers:

That unlawful warlike enterprises have been carried on from the United States, composed of persons from different countries,, against the territory of Nicaragua, is not to be denied. But during the whole progress of these illegal efforts, the Government of this country has faithfully performed the duty imposed upon it by the laws, as well through public proclamations against such enterprises as by giving the necessary directions to the proper officers to prevent their organization and departure, as by invoking the action of the judicial tribunals, and also by the employment of its naval force.

It is unnecessary to support these assertions by detailed proofs. They are as well known in Costa Rica and Nicaragua as here. Sometimes, indeed, owing to the defect of proof,” it has not been in the power of the Government to arrest these expeditions; but even when its exertions have not succeeded in preventing their departure, they have been fairly and generally successfully directed to prevent re-enforcements of men and material from reaching the adventurers who had eluded the vigilance of the officers of the law.* * * * * * *

But the presidents of these republics deal in specific facts as well as in more general allegations. They charge “that the Government of the United States has, according to official reports made to that of Costa Rica by its minister plenipotentiary at Washington, declared it was utterly powerless to prevent past attempts by the filibusters, or to protect the neutrality of Central America, owing to the insufficiency of the laws of the United States on this head.”

This accusation is wholly without foundation. No such declaration was ever made by the Government of the United States. It would have been an act at once of fatuity and of falsity. As to the difficulties in the enforcement of these laws, they are not denied, and have given much trouble to the Government in the efforts it has made to carry them into effect; but that they are powerless, or have proved so, no one, in or out of the United States, has a right to assert. The representatives of the Central American States may be called on as witnesses that, in all cases where they have given information to the Government that military expeditions against that region were about to be undertaken, measures have been immediately adopted to prevent their success, and to arrest and punish the offenders. Sometimes these efforts have failed, owing to causes not within the control of the Government, and sometimes they have been successful.

General Cass at the same time denied that a fresh invasion was preparing.1

[Page 253]

Notwithstanding this assurance, Walker’s preparations continued undisturbed until he was again on the eve of setting out with recruited forces, when, on the 30th October, President Buchanan issued a proclamation very similar to that published in the time of Lopez:

Whereas information has reached me, from sources which I cannot disregard, that certain persons, in violation of the neutrality laws of the United States, are making a third attempt to set on foot a military expedition within their territory against Nicaragua, a foreign state with which they are peace. In order to raise money for equipping and maintaining this expedition, persons connected therewith, as I have reason to believe, have issued and sold bonds and other contracts, pledging the public lands of Nicaragua and the transit route through its territory as a security for their redemption and fulfillment.

[40] The hostile design of this expedition is rendered manifest by the fact that these bonds and contracts can be of no possible value to their holders unless the present government of Nicaragua shall be *overthrown by force. Besides, the envoy extraordinary and minister plenipotentiary of that government in the United States has issued a notice, in pursuance of his instructions, dated on the 27th instant, forbidding the citizens or subjects of any nation, except passengers intending to proceed through Nicaragua over the transit route from ocean to ocean, to enter its territory without a regular passport, signed by the proper minister or consul-general of the republic resident in the country from whence they shall have departed. Such persons, with this exception, “will be stopped and compelled to return by the same conveyance that took them to the country.” From these circumstances the inference is irresistible that persons engaged in this expedition will leave the United States with hostile purposes against Nicaragua. They cannot, under the guise which they have assumed that they are peaceful emigrants, conceal their real intentions, and especially when they know in advance that their landing will be resisted, and can only be accomplished by an overpowering force. This expedient was successfully resorted to previous to the last expedition, and the vessel in which those composing it were conveyed to Nicaragua obtained a clearance from the collector of the port of Mobile. Although, after a careful examination, no arms or munitions of war were discovered, yet, when they arrived in Nicaragua, they were found to be armed and equipped, and immediately commenced hostilities.

The leaders of former illegal expeditions of the same character have openly expressed their intention to renew hostilities against Nicaragua. One of them, who has already been twice expelled from Nicaragua, has invited, through the public newspapers, American citizens to emigrate to that republic, and has designated Mobile as the place of rendezvous and departure, and San Juan del Norte as the port to which they are bound. This person, who has renounced his allegiance to the United States, and claims to be President of Nicaragua, has given notice to the collector of the port of Mobile that 200 or 300 of these emigrants will be prepared to embark from that port about the middle of November.

For these and other good reasons, and for the purpose of saving American citizens who may have been honestly deluded into the belief that they are about to proceed to Nicaragua as peaceful emigrants, if any such there be, from the disastrous consequences to which they will be exposed, I, James Buchanan, President of the United States, have thought it fit to issue this my proclamation, enjoining upon all officers of the Government, civil and military, in their respective spheres, to be vigilant, active, and faithful in suppressing these illegal enterprises, and in carrying out their standing instructions to that effect; exhorting all good citizens, by their respect for the laws, and their regard for the peace and welfare of the country, to aid the efforts of the public authorities in the discharge of their duties.

The “standing instructions” which the officers of the Government were enjoined to carry out were the instructions to use “due diligence,” in the circular of 1857; but notwithstanding the efforts which it is to be presumed they made to exercise it, a party of Walker’s filibusters embarked at Mobile in the sailing-schooner Susan, in December, 1858, without a clearance, on the pretense of being bound on a coasting voyage. An unsuccessful attempt was made by the revenue-cutter to intercept them, but there seems on this, as on the former occasion, to have been no ship of war with steam-power available to pursue her, and the party got off to sea accordingly, and the Susan was joined unmolested by the Fashion and the Washington, with military stores.

In 1859-’60. The expedition afterward broke down from the Susan being wrecked. [Page 254] Walker and his band then proceeded, in March, 1859, to California, whence they were said to have intended to make a descent on Punta Arenas; but this attempt was not carried into execution, and Walker returned to his usual employment of organizing expeditions in the United States.

In November, 1859, he, for the third time, eluded the “due diligence” of the Mobile authorities, and an expedition set sail once more from that, port in his old vessel, the Fashion. The Fashion put back from want of stores, and some of the persons concerned in the expedition were arrested; but there is no report of their having been punished. He started again in June, 1860, in the John A. Taylor, was met off Ruatan by another vessel with arms, and effected a landing on the Central American coast. His career was brought to a close by his being shot at Truxiilo in September, 1860.

Fenian raids against canada. Fenian raids against Canada.

“Irish Republican Union, 1848.” The first society formed in the United States for purposes hostile to Great Britain appears to have been the “Irish Republican Union.”

Massachusetts Emigrant Aid Society, 1855. The course of affairs in Ireland prevented the “Irish Republican Union” from carrying out any projects which it may have entertained, and it was succeeded in 1855 by the “Massachusetts Irish Emigrant Aid Society,” which held its first convention at Boston, on the 14th of August of that year, and under whose auspices secret societies were established in different parts of the United States.

Phœnix Society, 1859.
Fenian Brother-hood.
These secret societies continued under various names, until, in 1859, they were reconstituted as the Phoenix Society. The civil war interrupted their progress, but in 1863 they again prominently appeared as the “Fenian Brotherhood” at a public meeting, held at Chicago, in November of that year.

Meeting at Chicago in 1863.
*This meeting was reported to have been attended by 300 delegates, representing “circles,” including twelve from military and naval circles.

At Cincinnati in 1865. The second annual congress of the “Fenian Brotherhood” was held at Cincinnati in January, 1865, when their president declared that they were “virtually at war” with England, and spoke of “this American institution called the Fenian Brotherhood.”1

Issue of Fenian bonds.
Establishment of the Irish republic at C New York.
A congress of the Fenian Brotherhood met at Philadelphia on the 17th of October, 1865, and resolved upon the issue of “Fenian bonds,” and the establishment of the Irish republic at New York. The head-center, as he was previously called, of the Brotherhood was now styled president of the Irish republic; the executive council entitled themselves “senators,” with a president; a house was hired at a rental of $1,200; secretaries of the treasury, of war, &c., were appointed, and the Irish republic was declared to be founded at New York. The bonds had been prepared for the Fenians by the “Continental Bank-Note Company, New York,” and were stamped “office of the secretary of the treasury.” They were decorated with some emblems and inscribed:

It is hereby certified that the Irish republic is indebted unto _________ ________, or bearer, in the sum of (ten) dollars, redeemable six months after the acknowledgment of the independence of the Irish nation, with interest from the date hereof inclusive, at six per cent, per annum, payable on presentation of this bond at the treasury of the Irish republic.

[Page 255]

As a measure of precaution against the possible hostile incursions of Fenians which were being constantly threatened, the Canadian government was compelled to call out for active service nine companies of the provincial militia in November, 1865, and to station them along the most exposed parts of the frontier.1

On the 2d of January, 1866, a Fenian convention was held at New York, which lasted for nine days, and at which a detachment of the 99th State militia, numbering twenty-two men, are stated to have acted as sentinels.

At a meeting at Buffalo, on the 26th of January, “General Sweeney pledged himself, if supported, that before next May he would conquer a certain territory upon which the Irish flag should be planted, and which shall be made the base of operations against England for the liberation of Ireland.” “Colonel Roberts promised, within ninety days, to have the green flag supported by the greatest army of Irishmen upon which the sun ever shone.”2

At another meeting at Pittsburgh, Sweeney said:

Fenian raids. We have made large purchases of arms and war material. If you are prepared to stand by us, we promise that, before the summer sun kisses the hill-tops of Ireland, a ray of hope will gladden every true Irish heart, for by that time we shall have conquered, and got hostages for our brave patriots at home. The green flag will be flying independently to freedom’s breeze, and we will have a base of operations from which we can not only emancipate Ireland, but also annihilate England. If you support us, I pledge my name, fame, property, and life to this holy cause.3

Raid of 1866. The American newspapers were full of accounts of the ferment among the Irish. The New York World of March 5 said, “The Fenian funds are disproportioned to any pacific objects. They mean war or they mean nothing. The honest contributors suppose they are furnishing the sinews of war. If the receivers of the money do not intend to apply it to this object, they are a set of sharpers, practicing on the credulity of their followers, to levy a revenue for their own use. If they really mean war, if, as is given out, they contemplate the invasion of Canada, this is a serious business, which challenges the thoughtful attention of all Irishmen and all American citizens.”

That the Fenians did mean war was as plain as speech could make it.

[42] The “Irish American “reported that, at a meeting at Saint Louis, General Sweeney had announced that “considerable purchases of arms and war materials had already been made, and that large contracts for the same had been entered into.” Roberts spoke without an attempt at disguise. “Now,” he said, “there is but one outlet to Ireland by an armed force, and that is on a section of this continent, where, too, the English power to-day rules supreme, and that section, if it does not come immediately beneath the influence of American power, must be made to come into the hands of the Irish people; for the only way we can strike at English commerce is to have a place where we can have a government of our own, even before it should be recognized virtually on Irish soil.*Who will say that Andrew Johnson will not recognize the Irish republic, even if it should be only in name, as long as we have soil that we can claim as our own? It is necessary to have some base from which we can send aid to our brothers who are struggling for liberty. We want a place from which we can send out [Page 256] privateers against English commerce; and by that means. I think, we can take enough to maintain a government for fifty years very respectably.”

War meetings were also held at Portland, Lima, (Ohio,) Newport, Mil-ford, Waterford, and other places.

Information having reached the Canadian government from many quarters showing that an inroad was imminent, and this information being supported by police reports of suspicious persons having been recognized entering Canada from the United States, as well as by open avowals at the Fenian public meetings, the executive council passed a minute on the 7th of March, calling out for duty 10,000 of the Canadian volunteers.

It was not until the end of May that the Fenian preparations were completed. Stores of arms and ammunition had been placed at convenient stations along the frontier, and the word had been given for an attack. On the 31st of May the Fenians began the march; detachments of 200 and 300 men, calling themselves railway laborers on their way to the West, began to arrive at Buffalo and Saint Albans from the large towns. By the evening of that day a body of Fenians, estimated at upward of 1,000, had reached Buffalo, and, on the morning of the 1st of June, 750 of them crossed over to Fort Erie, on the opposite bank of the Niagara River. What then followed is succinctly described in a dispatch from Lord Monck of the 4th, published in the “correspondence respecting the recent Fenian aggression upon Canada,” presented to Parliament in February, 1867, which contains a full account of all that took place in Canada:

Government House, Ottawa, June 4, 1866.

Sir: Referring to my dispatch of the 1st of June, I have the honor to state, for your information, that the body of Fenian conspirators who crossed the frontier from Buffalo to Fort Erie on the morning of Friday, June 1, proved to be between 800 or 900 men, and seem to have been well armed.

I had previously had information that some such attempt would shortly be made, and a party of volunteers had been stationed at Port Colborne in anticipation of an attack.

I have not yet had time to receive official accounts of the military operations, but from telegraphic reports which have reached me I am able to give the following statement of what occurred, which I think may be considered authentic.

Immediately on the receipt of the intelligence of the invasion, Major General Napier pushed on by rail to Chippewa a force consisting of artillery and regular troops under Colonel Peacock, 16th regiment. Chippewa is about nineteen miles from Fort Erie, and there is no railway communication between the two places. On arriving at Chippewa, Colonel Peacock moved on in the direction of Fort Erie. On the morning of Saturday, June 2, the body of volunteers stationed as already mentioned at Port Colborne left that place by rail, which runs parallel to the shore of Lake Erie, and went in the direction of Fort Erie as far as a place called Ridgway; here they left the railway and proceeded on foot, apparently with the intention of effecting a junction with Colonel Peacock and his force.

They came upon the Fenians encamped in the bush and immediately attacked them, but were outnumbered and compelled to retire on Port Colborne. This occurred some time on Saturday, 2d June.

Colonel Peacock in the mean time was advancing in the direction of Fort Erie from Chippewa along the banks of the Niagara River, but was not able to reach the former place before nightfall.

The Fenians, however, did not await his arrival, but recrossed the river during the night between the 2d and 3d June, to the number of about 750 men, and, as appears from the accompanying telegram from Mr. Consul Hemans, were immediately arrested by the authorities of the United States.

I am happy to be able to inform you that the officers of the United States Government appear to have exerted themselves to prevent any assistance being supplied to the invaders. I transmit copies of telegrams received on this subject from Mr. Consul Hemans.

We have sixty-five prisoners in our possession, who have been by my direction committed to the common jail at Toronto to await trial.

[Page 257]

I think it is creditable, both to the military and militia authorities in Canada, that they were in a position within twenty-four hours after the invasion of the province, at a point of the enemy’s own selection, to place opposite to him such a force as compelled his precipitate retreat without even risking an engagement.

I shall not fail to send you more full particulars when I shall have received the official reports from the officers engaged, but the main facts are as I have stated them above.

I have, &c.,



The vigilance of the authorities of the United States was not aroused until after the raid had occurred, when the raiders were stopped in their retreat into United States territory, and the party, now reduced by loss and desertion to 375, made prisoners, with O’Neill, their leader, and their arms taken from them.

[43] *The stores of arms at Buffalo, Ogdensburgh, and Saint Albans, were also seized by the United States district marshals. On the 5th of June the arrest of the other Fenian leaders was ordered; and on the 6th the President issued a proclamation stating that it had become known to him that certain evil-disposed persons had begun to set on foot; and had provided and prepared, and were still engaged in providing and preparing means for a military expedition and enterprise, which expedition and enterprise was to be carried on from the territory and jurisdiction of the United States against British territory, and authorizing the United States military forces and militia to be employed “to arrest and prevent the setting on foot and carrying on the expedition and enterprise aforesaid.”

On the same day on which this proclamation was signed, the Fenian prisoners at Buffalo were released on their own recognizances; and, on the 7th, O’Neill and the two other principal leaders were also released on bail.

Another band of Fenians made a demonstration near Saint Albans, but retreated immediately on the appearance of a Canadian regiment.

Several arrests were made at Saint Albans, and elsewhere; and Roberts, the president of the Fenian senate, and chief instigator of the raid, was taken into custody at New York. His examination, commenced on the 11th; on the 12th he was released on parole; and the district attorney eventually abandoned the prosecution, from want of evidence, with the intention of preferring an indictment before the grand jury.

On the 23d July, the House of Representatives of the United States passed the following resolutions:

Resolved, That the House of Representatives respectfully request the President of the United States to urge upon the Canadian authorities, and also the British government, the release of the Fenian prisoners recently captured in Canada.

Resolved, That this House respectfully request the President to cause the prosecutions instituted in the United States courts against the Fenians to be discontinued if compatible with the public interests.

In pursuance of the second of these resolutions, the Attorney-General instructed the district attorney at Buffalo to abandon the Fenian prosecutions there, and they were abandoned accordingly.

The prosecution was also withdrawn in the cases of Sweeney, Spear, McMahon, and the other leaders of the Vermont frontier demonstration, who had been arrested, but released on bonds of $5,000 after a day’s detention; and the intended indictment of Roberts was dropped as a matter of course.

In October the Government decided to return the arms which had been taken from the Fenians.

The New York Times, of the 16th of October, gives an account of this transaction: [Page 258]

Buffalo, Monday, October 15.

In pursuance of orders issued by the Attorney-General of the United States, with the concurrence of the Secretary of War, United States District Attorney Dart gave instructions to General Barry, commanding the military district, to turn over the arms seized from the Fenians in this city, and at other points within the military district, upon the giving of a bond in double the value of the arms, to be approved by Judge N. K. Hall, that the arms shall not be used in violation of the neutrality laws. There were twenty boxes of arms seized here, valued at $2,500. This general order was procured at the intervention of Hon. James M. Humphrey, of this city, the cabinet taking the position that, as the Government had abandoned the prosecution of the Fenian officers and soldiers, it could not consistently hold their private property. Several thousand dollars’ worth of arms held at Erie, Oswego, Plattsburgh, Malone, Troy, and other places, will be turned over on the same terms. It is said that the arms will be sold to Santa Anna. P. O. Day and T. B. Gallagher signed the bond.

These persons were well known as having taken an active part in promoting the raid, Gallagher being editor of the Buffalo Fenian Volunteer. The bond which they signed was, it is scarcely necessary to point out, a mere form, as it would have been utterly impracticable to identify the arms on another occasion. The alleged intention of selling the arms to Santa Anna, who was then said to be meditating a descent on Mexico, was a mere transparent pretext.

The arms do not seem to have been all restored until the following year.

This closes the account of the first Fenian, raid on Canada, which had cost the Dominion the loss of an officer and six privates of the Queen’s Own Volunteer Rifles killed, and four officers and twenty-seven men wounded, many of them mained for life Besides this bloodshed there was the heavy cost to the country in pensions, gratuities, and payment of claims arising out of the raid, as well as the serious charge on the treasury for summoning the volunteers, and the hinderance to industry by such a disturbance of the country at a season of the year when agricultural pursuits were in full operation.

[44] *second bald on canada.

Second raid on Canada. 1870. A renewal of the attack was threatened in the autumn of 1866, and the Canadian government was obliged to form a camp of volunteers in the neighborhood of Niagara Falls from August to the second week in October. The expense of this camp, over and above the appropriated drill pay and loss to the industry of the province from the withdrawal of a large number of men from their occupations, amounted, in money, to $80,000.1

During the year 1867 the Fenian Brotherhood were occupied in promoting Fenian disturbances in England and Ireland, in which Halpin, Burke, McCafferty, and others who had come over from the United States for the purpose, were ringleaders.

In 1868 the Fenians obtained from the Government the return of the arms seized at Saint Albans, consisting of about 1,300 muskets, and again proceeded to organize an expedition against Canada.

In November, 1868, a Fenian congress was held in Philadelphia, and O’Neill marched through the town at the head of three regiments of the so-styled Irish republican army, in green uniforms, numbering, as was reported, 3,000 men.2

During the year 1869 the Fenians were engaged in making fresh military preparations. On the 7th of February, 1870, O’Neill wrote to the circles that a congress of the Fenian Brotherhood was ordered to meet [Page 259] in New York on the 8th of March, and desired them to send none but the best and most reliable men, and if it be possible “to let them have a military record.”

The accounts received from various quarters of O’Neill’s avowed intentions, and the probability of some attack being made, rendered it necessary for the Canadian government to be on the alert.

On the 9th of April 6,000 militia were called out, and two Canadian gun-boats armed, manned, and fitted out, to cruise along the water boundary.

On the 12th of May, the governor-general, at the opening of the Canadian parliament, said that “the information which reached my government from many quarters as to the designs of parties styled Fenians, armed and openly drilled in various parts of the neighboring States, rendered it incumbent on me to apply to parliament to pass an act to suspend the habeas corpus act, as well as to call out an armed force for the defense of the frontier.” “The vigorous steps resorted to, and the landable promptitude with which the native militia responded to the call to arms, chilled the hopes of the invaders, and averted the menaced outrage, so that I now entertain a sanguine hope that I shall not be placed under the necessity of exercising the powers so intrusted to me.”

In the third week in May the Fenian detachments began to collect and move toward the frontier. The first batch arrived at Saint Albans on the evening of the 23d, and on the same day another party made their appearance at Malone. On the 24th the President issued a proclamation stating that it had come to his knowledge that sundry illegal military enterprises and expeditions were being set on foot within the territory and jurisdiction of the United States against Canada, and enjoining all officers in the service of the United States to prevent those unlawful proceedings, and to arrest and bring to justice those engaged in them. On the 25th O’Neill’s party made their attack from Franklin, a village near Saint Albans, but were at once repulsed and driven back across the frontier. O’Neill was then arrested by the United States marshal. A detachment of forty-five men of the Fifth United States Infantry arrived at Saint Albans in the evening to preserve order.

The end of the raid from Malone, in New York State, was the same. The Fenians took up a position, strengthened by a breastwork of logs and a trench, just beyond the United States frontier, and, on being attacked, broke into a disorderly flight across it.

Trial and conviction of the raiders.
Several of the leaders were arrested and a quantity of arms taken possession of by the United States authorities. Altogether thirteen tons of arms are said to have been seized at the two raids, and conveyed to United States arsenals; besides these a field-piece and numbers of rifles were abandoned on the scenes of action. On the 12th of July the trials of the Malone raiders took place; two were condemned to two years’ imprisonment and a fine of $10, and one to one year’s imprisonment and a similar fine. On the 29th of July the Saint Albans raiders were tried; O’Neill was sentenced to two years’ imprisonment and a fine of $10; another of the leaders to nine months’ imprisonment, and a fine of $5; and another to six months’ imprisonment and a fine of $1. The *proceedings against two others were postponed. On the 12th of October O’Neill and his companions received an unconditional pardon from the President.

Fenian raiders pardoned by the President. On the day on which the pardon was granted the President published a proclamation warning evil-disposed persons that the law forbidding hostile expeditions against friendly states would for the future be rigorously enforced.

[Page 260]

President’s proclamation. Whereas divers evil-disposed persons have, at sundry times, within the territory or jurisdiction of the United States, begun, or set on foot, or provided, or prepared, the means for military expeditions or enterprises to be carried on thence against the territories or dominions of powers with whom the United States are at peace, by organizing bodies pretending to have powers of government over portions of the territories or dominions of powers with whom the United States are at peace, or by being, or assuming to be, members of such bodies; by levying or collecting money for the purpose, or for the alleged purpose, of using the same in carrying on military enterprises against such territories or dominions; by enlisting or organizing armed forces to be used against such powers, and by fitting out, equipping, and arming vessels to transport such organized armed forces to be employed in hostilities against such powers;

And whereas it is alleged, and there is reason to apprehend, that such evil-disposed persons have also, at sundry times, within the territory and jurisdiction of the United States, violated the law thereof by accepting and exercising commissions to serve by land or by sea against powers with whom the United States are at peace, by enlisting themselves or other persons to carry oh war against such powers; by fitting out and arming vessels with intent that the same shall be employed to cruise or commit hostilities against such powers, or by delivering commissions within the territory or jurisdiction of the United States for such vessels, to the intent that they might be employed as aforesaid;

And whereas such acts are in violation of the laws of the United States in such case made and provided, and are done in disregard of the duties and obligations which all persons residing or being within the territory or jurisdiction of the United States owe thereto, and are condemned by all right-minded and law-abiding citizens:

Now, therefore, I, Ulysses S. Grant, President of the United States of America, do hereby declare and proclaim that all persons hereafter found within the territory or jurisdiction of the United States committing any of the afore-recited violations of law, or any similar violations of the sovereignty of the United States for which punishment is provided by law, will be rigorously prosecuted therefor, and upon conviction and sentence to punishment will not be entitled to expect or receive the clemency of the Executive to save them from the consequences of their guilt, and I enjoin upon every officer of this Government, civil or military, or naval, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the performance of our sacred obligations to friendly powers.

Raid of 1871. On the 5th of October last, less than a year after his release and after this proclamation, O’Neill led a third raid against Canada, on the Pembina frontier, but was arrested by the United States troops, and this time met with entire immunity, being discharged on the ground that there was no evidence of his having committed any overt act within the United States territory.

This closes the history of the Fenian raids.

military expeditions in aid of the cuban insurrection.

Military expeditions in aid of the Cuban insurrection. The proclamation of October, 1870, which has been cited above, referred not only to the proceedings of the Fenians, but to expeditions in aid of the Cuban insurrection.

Mr. Roberts, the Spanish minister at Washington, represented to the United States Government that he had “seen the departure of various filibustering expeditions, in broad daylight and unmolested, from New York and other Federal ports, and had finally felt himself obliged, by the incomprehensible apathy of the authorities, to take the initiative in order to prevent these repeated infractions of the neutrality laws.”—(Mr. Roberts to Mr. Fish, September 18, 1869.)1

The principal expeditions referred to seem to have been those undertaken in the Grapeshot and Peritt, which landed parties of men and supplies in Cuba in May.

The United States Secretary of State, in his reply, said that he “was forced to admit with regret that an unlawful expedition did succeed in [Page 261] stealthily escaping from the United States and landing on the shores of Cuba,” but that it had escaped unnoticed by either the United States officers or, as he believed, by the agents of the Spanish government.1

A further expedition was subsequently dispatched from New Orleans in the ship Cespedes, or Lilian, in October, 1869, to Cedar Keys, Florida, where she was met by a body of from 300 to 350 armed men, under command of a Cuban named Goicurria, who had sailed from New York to join her in the steamer Alabama. The Lilian failed in landing the expedition on the Cuban coast, and was finally stopped and condemned for a breach of the British foreign-enlistment act at Nassau.

[46] *A still more notorious vessel is the Hornet, or Cuba. The Hornet is an iron paddle-wheel steamer, originally a blockade-runner, of 820 tons. She was captured during the civil war, and taken into the United States Navy as a dispatch-boat, in which capacity she carried eight guns. She was sold in June, 1869, to Senor Macias, and it is believed retained her port-holes. After being refitted at Kensington, near Philadelphia, she cleared for Halifax, but was detained for inquiry as to her intended proceedings. At Halifax she was again detained on the assertion that she had heavy guns on board, bur, this proving incorrect, she was released, and sailed along the United States coast. Coals, supplies, and arms are stated to have been shipped on board, and she then put in at Wilmington, North Carolina, flying the Cuban flag. Here she was arrested for violation of the neutrality laws, and her commander, a United States citizen, and twenty-three others tried, and the vessel herself taken possession of by the United States authorities.

The result of the trial was that the judge held that only two acts were shown to have been committed within the jurisdiction of the United States from which an intent to violate the neutrality laws could be inferred. These were the enlistment of a witness, D. D. Munro, and the reception of a cargo of coal in Long Island Sound. The commander and sixteen of the prisoners were discharged, and six others released on bail.2 It does not appear that any further proceedings were taken against them.

The vessel was then libeled in the admiralty court, but after some delay was returned to her former owner, Senor Macias, on bonds being given by Senator Chandler and General Butler that she would not be again used in violation of the neutrality laws. She, however, has since recommenced her career, and after taking in stores and, as is supposed, arms, at Aspinwall, succeeded in landing an expedition in Cuba in January, 1871. She then took refuge at St. Domingo, and in January of the present year was convoyed to Baltimore, under the protection of a United States ship of war. It remains to be seen whether any legal proceedings will be instituted against her, and, if so, what will be their result.

The views held by the United States Secretary of State with regard to the Cuban Junta, at New York, by whom these expeditions were concerted, were thus expressed in a dispatch to the United States minister at Madrid, in January, 1870:

“Had the Cuban Junta,” he says, “expended their money and energy in sending to the insurgents arms and munitions of war, as they might have done consistently with our own statutes, and with the law of nations, instead of devoting them to deliberate [Page 262] violation of the law of the United States, and had they, in lieu of illegally employing persons within the dominions of the United States to go in armed bands to Cuba, proceeded thither unarmed themselves to take personal part in the struggle for independence, it is possible that the result would have been different in Cuba, and it is certain that there would have been a more ardent feeling in the United States in favor of their cause, and more respect for their own sincerity and personal courage.”1

And in a letter to Mr. Roberts, dated the 28th of December, Mr. Fish pressed upon Mr. Roberts the necessity of legal evidence being furnished in Order to enable the local authorities to act:

The undersigned takes the liberty to call the attention of Mr Lopez 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 process, 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.2

Her Majesty’s government do not adduce these instances of recent violations of the neutrality laws of the United States, the facts of which are notorious, in any spirit of accusation or recrimination. But the attention of the arbitrators has been called to the long series of illegal expeditions which have been organized and dispatched from the United States against the territories of friendly nations during the last twenty-two years, as instances of the flagrant manner with which the laws of the United States have been evaded, as shown by the messages of successive Presidents, in spite of what Her Majesty’s government assumes to have been the intentions and efforts of the executive authorities. From these multiplied examples the arbitrators may be enabled to form an estimate of the measure of “due diligence” in executing laws for the prevention of such enterprises which, the United States have considered sufficient in their own authorities, and could not, therefore, reasonably expect to be exceeded by the authorities of other countries.

[47] *recapitulation.

Precedents appealed to by the United States. Out of this retrospect, which has been rendered necessary by the statements introduced into the case of the United States, the following observations arise:

Recapitulation. The argument of the United States, that a neutral government is not only bound to exert reasonable care for the purpose of preventing violations of its neutrality, but is bound to apply to the various duties which purport to be enumerated in the three rules, pursued in their minutest details, and pushed even beyond the natural meaning of the words employed, a diligence the most energetic, vigilant, and exact, finds (whether it be true or not) no support in this history. However rigorously the United States may now be disposed to estimate the obligations of other powers, they have not so construed their own.
The argument that compensation is due, as of right, for any loss sustained in war by a belligerent, which may be traced to a relaxation of diligence on the part of neutral powers in preventing violations of neutrality, whether it be sound or not in itself, is not supported by any precedent adduced. The United States have never paid, nor have they ever admitted a liability to pay, such compensation.
Where compensation has been claimed in such cases, it has been [Page 263] limited to the values of ships and cargoes captured by vessels unlawfully fitted out and armed; and the claim has never been admitted, except when such prizes have been brought, by the captors within the jurisdiction of the neutral power.
The position that a neutral government is under an obligation to seize and detain any armed ship entering its ports, even though commissioned as a public ship of war, which has received any equipment or any adaptation for war within the jurisdiction of the neutral, is equally unsupported. There is no trace of such an obligation. The American Government did indeed, in 1793, direct that privateers which had violated its neutrality should not have asylum in its ports. But even this (which is a very different thing) it acknowledged no obligation to do; and the exclusion (which does not appear to have been extended to public ships of war) seems to have been by no means steadily enforced.

Finally, Her Majesty’s government cannot forbear to remark that the history of this subject is from first to last a history of unlawful enterprises originated either in the United States or by citizens of the United States in other countries. Great Britain, Spain, Portugal, Mexico, the Central American Republics, Cuba, and Canada, have from time to time been harassed by privateers fitted out in the ports of the Union, or hostile expeditions organized and assembled within its territory. And when, in 1861, civil war broke out within the Union itself, it was by American citizens that the plan was formed to abuse, for the more effectual prosecution of that war, the soil and waters of a neutral and friendly nation. Baffled, in the great majority of cases, by the restraints of the law and the watchfulness of the Executive, they contrived, in a very few, to elude those restraints. They procured ships, transported them to distant seas, armed and manned them there, and employed them in cruising against their countrymen, not, indeed, for the sake of plunder or profit, but to assist the people of their own States in a struggle for independence. The Southern States have returned to their allegiance. They have been treated with clemency, and no attempt has been made to exact from them, by fines or forfeitures, pecuniary reparation for the losses which the Government and the rest of the people of the United States have sustained through their means. The acts which they directed and authorized, when in arms against the Union, are now, on behalf of the nation of which they form an important part, made the subject of complaints and demands against Great Britain. Her Majesty’s government has been ready and willing to give the United States all reasonable satisfaction by submitting the question to the award of an impartial tribunal. But it is surely no unjust observation that, if ever there was a case in which a power, deeming itself aggrieved, might have been expected to state its complaints with moderation, and to make ample allowance for administrative difficulties and unavoidable deficiencies of proof, that occasion is the present and that power is the United States.

  1. The narrative introduced into the Case of the United States is taken from Cussy’s Phases et Causes Célèbres du Droit Maritime, vol. ii, p. 402. There is a better account, containing the official correspondence, (which is wanting in Cussy,) in Martens’s Causes. Célèbres du Droit des Gens, vol. v, p. 229, ed. 1861.
  2. See Heffter, cited below, p. 145. This distinction is recognized by all writers. There is reason to believe, however, from facts which have become notorious, that it was overlooked by the American Government during the late war between France and Germany.
  3. Case of Great Britain, p. 47.
  4. Ibid., p.44.
  5. Infra, p. 122.
  6. Appendix to British Case, vol. v, p. 201.
  7. Ibid., p. 241.
  8. Report of the Neutrality Law Commissioners, p. 19; Appendix to British Case, vol. iii.
  9. Appendix to British Case, vol. v, p. 242.
  10. Ibid, p. 244.
  11. Appendix to British Case, vol. v, pp. 269, 270.
  12. Appendix to British Case, vol. v, p. 268.
  13. Ibid., p. 296.
  14. Ibid., p. 284.
  15. Appendix to British Case, vol. v. p. 292.
  16. Ibid., p. 294.
  17. Ibid., p. 255.
  18. Appendix to British Case, vol. v, p. 276.
  19. “All the documents above quoted were of the date of 1793, the latest of them of November 22. They were all public, and in the hands of the negotiators of the present treaty. That treaty, which was signed in November, 1794. makes the letter of September, 1793, the standard of the engagements of the United States in cases of this nature, and directs us, in all cases where restitution shall not have been made agreeably to the tenor of that letter, to proceed as in the other cases committed to us. The tenor of that letter appears to me to respect only cases occurring after the 5th June, and contains no stipulation either of restitution or compensation in cases anterior ta that date. The case of the Fanny, Pile, master, now under consideration, is of anterior date, and therefore is, in my opinion, not within the powers or duty of this board further to consider.”—Decision in the case of the Fanny, Pile, master. Appendix to British Case, vol. v, p. 319.
  20. Decision in the case of the Jamaica, Martin, master. Ibid., pp. 311 et seq:
  21. “From this examination of the letter, which is given to us for a rule, it results that it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been—first, captured between the dates of June 6 and August 7 within the line of jurisdictional protection of the United States, or even on the high seas; if, secondly, such captured vessel and property were brought into the ports of the United States; and, thirdly, provided that, in cases of capture on the high seas, this responsibility should be limited to captures made by vessels armed within their ports; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the United States had confessedly forborne to use all the means in their power to procure restitution; and that, with respect to cases of captures made under the first, second, and third circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that he thought that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) where the United States, having decreed restitution, and the captors having opposed or refused to comply with or submit to such decree, the United States should forbear to carry the same into effect by force.

    “Such was the promise. In what manner was that promise to be carried into effect? It was not absolute to restore, by the hand of power, in all cases where complaint should be made; if it had been such, there would have been no want of complaints, aid France herself would have had a better reason for making them than any other party. No, the promise was conditional. We will restore in all those cases of complaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise—that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to prove that he is the person in whose favor, or under the circumstances in which the promise was intended to operate; and since it is the party promising redress who must first be convinced by testimony of the truths and justice of the complaint before the obligation of his promise can apply and bind him to performance of the stipulated relief, he is, of course, the proper person to decide under what forms, and in what manner, the examination and proof of these facts is to be conducted. Accordingly, every civilized nation has established laws and judicial forms for doing right, for redressing wrongs, and for restoring to the true owner property which may have been unjustly wrested from him.”—Decision in the case of the Elizabeth, Ross, master. Appendix to British case, vol. v, p. 322.

  22. “It appears that by the expression ‘all the means in their power,’ they meant, first, those means which the Constitution and laws had provided for the redress of wrong and force whenever it should be rendered necessary by any act of opposition to the ordinary course of justice. That although doubts entertained by a part of the judicial establishment of its jurisdiction in these cases had placed them for a time under the immediate eye of the Executive power, yet to the complainant this produced no important change, since the same examination and proof of facts was required to establish the justice of his complaint and to guide the decision of the President, as would have been required before the judges. That after the 18th February, 1794, the decision of the Supreme Court had removed those doubts which had for a time influenced the conduct of some of the inferior courts. And it does not appear that after that decision there was any delay on the part of the inferior courts in rendering, nor any opposition on the part of the captors to the execution of their process or decrees, insomuch that there existed no occasion thereafter to fulfill the ultimatum of the promise by exerting force to compel restitution.”—The Elizabeth. Ibid., p. 327.
  23. “It appears from the first part of this inquiry that, in promising to use all the means in their power for the restitution of vessels captured after that date, the United States did not undertake to make compensation in case those means should fail of their effect.”—The Elizabeth. Ibid., p. 327.
  24. Case of the United States, p. 212.
  25. Ibid., p. 130.
  26. ibid., p. 131.
  27. Ibid., p. 136.
  28. A statement of the facts of this case will be found in a note by Mr. Dana in the Appendix to the Case of the United States, vol. vii, pp. 18–23.
  29. See United States vs. Klintock, 5 Wheaton, 144; United States vs. Smith, ibid., 153; United States vs. Furlong, ibid., 184; United States vs. Jones, 3. Washington’s C. C, 209; and the case of the officers and crew of the Irresistible, 18 Niles’s Register, 256, 275.
  30. Appendix to British Case, vol. iv, No. 5, correspondence respecting the Shenandoah, p. 25. Appendix to Case of the United States, vol. iii, pp. 553 et seq.
  31. Case of the United States, p. 139.
  32. Appendix to British Case, vol. iii, p. 149.
  33. Ibid., p. 150.
  34. Ibid., p. 158.
  35. Appendix to British Case, vol. iii, p. 155.
  36. Case of the United States, p. 143.
  37. 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.
  38. Appendix to British Case, vol. iii, p. 157.
  39. Appendix to British Case, vol. iii, pp. 165, 166.
  40. Mr. Clavton to Senhor de Figanière e Morão, March 30, 1850.—Appendix to British Case, vol. iii, p. 163.
  41. 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.
  42. Appendix to British Case, vol. iii, p. 131.
  43. Case of the United States, p. 158.
  44. Pages 136 and 213.
  45. 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.)
  46. Appendix to British Case, vol. iii. Report of Neutrality Commission, p. 34.
  47. Correspondence respecting Central America, Presented to Parliament 1860. Lord Napier to General Cass, October 9, 1857.
  48. Correspondence respecting Central America, presented to Parliament 1860, pp. 219, 220.
  49. Irish American, February 11, 1865.
  50. Correspondence relating to the Fenian invasion, laid before the Canadian Parliament, June, 1869, p. 139.
  51. New York World, January 27, 1866.
  52. World, February 20.
  53. Canadian Parliamentary Papers.
  54. Irish American, December 5, 1868.
  55. Papers relating to Cuban affairs, presented to the House of Representatives, February 21, 1870, pp. 133–138.
  56. Papers relating to Cuban affairs, presented to the House of Representatives, February 21, 1870, pp, 133–138.
  57. United States vs. The officers of the steamship Cuba, reported in Wilmington Journal, October 31, 1869.
  58. Papers relating to Cuban affairs, presented to the House of Representatives February 21, 1870, p. 69.
  59. Papers relating to the foreign relations of the United States transmitted to Congress with the annual message of the President, December 4, 1871, p. 786.