ledge of the law of nations, and the blockade was raised on September 2, 1817.

C. Right of Visit and Search.

(1). Right of Visit and Search in General.-The general tendency of the United States in regard to the right of visit and search has constantly been to oppose the strict and severe practice of Great Britain55 in respect to the exemption of neutral vessels under convoy.

9956

The exemption of convoyed vessels from the belligerent right of visit and search was always denied by Great Britain and insisted upon by the United States. Recent writers on the subject assert that "the decisions of the American courts and the opinion of American jurists support the English view.' But in fact, this is only partially true. They have failed to observe the difference between the case of neutral merchantmen under the convoy of belligerent war vessels and that of neutral merchantmen under the convoy of war vessels of their own country. In the former case, there appears some divergency of opinion among the American jurists, while in the latter, the United States is never found to have supported the British view.

(a) Neutral Merchantmen under Belligerent Convoy.-The British courts hold that a neutral vessel under enemy convoy will take the belligerent character, and therefore, it must be treated as enemy. This view was accepted by the United States government and supported by Justice Story. In the case of the "Nereide" in 1815, he declared that "the belligerent convoy is naturally bound to resist all visitations by enemy ships whether neutral to the convoyed ships or not. The neutral that secures the belligerent protection also declares that he will not submit until the enemy convoy is conquered."

(b) Neutral Merchantmen under the Convoy of their own Nation. In respect to the neutral merchantmen under the convoy of ships of their own nation, there was no concurrence of opinion between Great Britain and the United States. Great Britain made no distinction between the belligerent convoy and the neutral's own convoy. The British courts denied the right I Robinson 287, Am. Ed.

55

5Atherly-Jones, Commerce in War, pp. 322-323.

U. S. Supreme Court Reports, 9 Cranch 388, 441.

of convoy, both belligerent and neutral. The United States, on the other hand, always maintained that "the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and when they are bound to an enemy's port, that they have no contraband goods on board shall be sufficient. With these conditions," continued Secretary Forsyth, in his correspondence with the Mexican minister, May 18, 1837, "the United States have at all times been willing to comply This principle was embodied in the treaty of 1797 with Tunis, and in that of 1800 with France.60

1958

59

On June 17, 1801, Great Britain, however, recognized, by joining the famous Maritime Convention of St. Petersburg, the exemption of convoy. Although the rule of entire immunity of convoyed vessels was not formally accepted by Great Britain, it was a decided compromise on her part. It was agreed that merchant vessels sailing under convoy should be required to produce to the commander of the convoy their passports and ship's papers so that when necessary, the commander might prove the verification. It was further stated that this verification being made, that there should be no pretense for any search.61

CHAPTER 4

HISTORY OF Neutrality FROM 1818 TO 1861

I. THE BRITISH FOREIGN ENLISTMENT Act of 1819.

After the close of the European wars in 1815, British soldiers and sailors were freely enlisted and organized in British jurisdiction for the service of the South American provinces. Under these circumstances, the British government, following the example of the United States, passed in 1819 the Foreign Enlistment Act "to prevent the enlisting or engagement of His Majesty's subjects to serve in foreign service, and the fitting out or equipping in His Majesty's dominion vessels for warlike purposes, without His Majesty's license." This statute was based upon the American Act of 1794, and in its enactment the endeavor was made to follow as closely as possible the American course of legislation. Mr. Canning passed the highest eulogy upon the American system of neutrality. In 1823, when a bill was introduced in Parliament to repeal the Act of 1819, he made a speech in which he said, "If I wished for a guide in a system of neutrality, I should take that laid down by America, in the days of the presidency of Washington, and the secretaryship of Jefferson."

The American Enlistment Act required securities in double the amount of the value of the ship and cargo ready to depart, promising that the same would not be employed in any service contrary to the law. This part of the measure was omitted in the British Act of 1819.

II. FILIBUSTERERS.

The American practice of neutrality during this period involved numerous cases under different circumstances. In the famous case of the "Bolivar", the American court decided that Quincy was not guilty, on the ground that the "Bolivar" did not form the intention before the departure from the jurisdiction of the United States. Quincy, an American citizen, sailed under his command a pilot boat, the "Bolivar", from

Baltimore to St. Thomas. On the arrival at St. Thomas, Armstrong, the owner of the "Bolivar", procured funds and fitted her out as a privateer under the flag of Buenos Ayres. After several captures of Spanish vessels made on the high seas, she returned to the United States with Quincy and Armstrong still on board. Quincy was indicted on the ground that he had been knowingly concerned in the fitting out of a vessel "with intent that such vessel should be employed in the service of a foreign prince. The court held that "the offense consists principally in the intention with which the preparations to commit hostilities were made. These preparations must be made within the limits of the United States and the intention should be formed before she leaves the United States." So long as the intention was formed outside of the jurisdiction of the United States, Quincy could not be condemned.

"

The facilities and countenance rendered by the American government to the agent sent by the German government about 1848, at the time of the German liberal movement, to purchase a ship of war from an American company, were withdrawn when complaints were made of it. When the ship was ready to leave, the American government demanded bonds to the sum of $900,000.

When American sympathy was thoroughly aroused toward the liberal movement in Hungary, and the President of the United States was authorized by a joint resolution of the two Houses of Congress, in March, 1851, to send a ship of war to bring to the United States the Hungarian patriot, Kossuth, then a refugee with the Porte, the neutrality of the United States was severely tested. On his arrival in the United States, Kossuth was received with overwhelming enthusiasm both by the government authorities and by the people. the reason why he failed in his efforts to secure from the United States not only sentimental but “operative sympathy" in the shape of "financial, national, or political aid", was because the American statesmen realized that the United States was bound under its neutral obligations not to interfere with 'U. S. Supreme Court Reports, 6 Peters 445.

"Statutes at Large, Vol. IX, p. 647.

3

But

Richardson, Messages, Vol. V, p. 119, the President's Message of Dec. 2, 1851.

Hungarian affairs. Henry Clay told Kossuth, "you must allow me to protest against the policy you propose to her (The United States), and he further said that "our ancient policy of amity and nonintervention in the affairs of other nations" must not be abandoned.1

At the time of the Cuban insurrections, in 1849 and 1851, the sympathy of the South with Lopez and his followers was so strong that it was hard to enforce the laws of neutrality. Hostile expeditions, organized by American citizens within the jurisdiction of the United States, became very threatening, and President Taylor issued a proclamation against them.5 But this proved insufficient, and President Fillmore issued another warning against any unlawful acts. Lopez' first expedition was successfully prevented. But another expedition succeeded in escaping, and Lopez' followers were captured as pirates by the Spanish. Lopez was tried by a Southern jury on a charge of violating the neutrality of the United States, and was released. He gathered his scattered forces and made a second descent on the Island in August, 1851. When the news of his capture and garroting, and the death of his fifty followers reached the United States, a mob in New Orleans wrecked the Spanish consulate and defaced a portrait of the Spanish Queen. Mr. Webster offered a reparation for the insult and recommeded to Congress the granting of an indemnity for the damage, thus to restore the diplomatic relations with Spain.

The famous case of the "Caroline" brought out a very important principle. During the progress of the Canadian rebellion in 1838, a body of men fitted out in American territory the "Caroline" for the invasion of British territory. She was attacked by an English force while at anchor on the American side of the Niagara, and was sent adrift over the Falls. The American government complained of the violation of its neutral territory, and the British government answered by pleading self-defense in justification of the act. After an exchange of notes the government at Washington dropped the matter, acquiescing in the British contention of the necessity of selfdefense, “instant, overwhelming, leaving no choice of means,