Mr. Whitney's Argument for the United States. Situation of the Latin-American world at the time of the neutrality act of 1817. The contesting bodies may be divided into classes, as follows: (a) The leading Spanish-American colonies, whose position as belligerents was in doubt. Whether or not the belligerency of the South American revolutionists had been recognized in Madison's administration depends upon the question - how much formality is necessary in a recognition of belligerency? Is it only recognized by the President or Secretary of State in a formal document declaring the fact to the world or communicating it to Congress? Or is it recognized also whenever the President or one of the Cabinet officers, in an ordinary official letter of instruction, or in transmitting information to a Congressional committee, uses the term "belligerent" or "civil war"? This cannot be. Were it so, then on the same principle President Monroe would have been held to acknowledge the independence of the South American governments as early as January, 1819. 4 Wheat. App'x, p. 41. The former method was held necessary in The Conserva, 38 Fed. Rep. 431, 437. On this principle Henry Clay considered that neutrality had not been recognized at the time of the act (Annals of Congress, March 18, 1818, p. 1415), and Mr. Wheaton seems to have agreed with him (4 Wheat. App'x, p. 23); but President Monroe took the opposite view (Annual Message of December 2, 1817). President Madison had used very guarded language in his message of December 26, 1816. Monroe's view was probably based on his own language as Secretary of State in his letter of January 19, 1816, to the Spanish minister, Onis, and his letter of January 10, 1817, to the Chairman of the Foreign Affairs Committee of the House of Representatives, John Forsyth, and on the circular of Mr. Rush, Secretary of the Treasury, to all collectors of customs, dated July 3, 1815, directing the admission to our ports of all insurgent flags. This circular, however, named no particular flag, and imposed no condition as to executive recognition. The states whose belligerency was recognized by Monroe in 1817 were doubtless those whose independence was recognized in 1822, namely, New Granada and Venezuela (after Mr. Whitney's Argument for the United States. wards united as Colombia), Buenos Ayres (officially known as the United Provinces of South America), and Chile — the successful revolts of Peru and Mexico having been later than 1817. That the recognition of belligerency did not apply to all the minor insurgencies has been expressly ruled by this court in The Nueva Anna and Liebre, 6 Wheat. 193. (b) Certain Spanish or Portuguese districts whose belligerency had not then been and never was recognized. One of these Paraguay - has been already referred to. This may have attracted no attention, as our people did not come into contact with it, though probably informed of its existence. 4 American State Papers, Foreign Relations, pp. 219, 222, 225, 250, 265, 278, 339. Second only to Buenos Ayres, however, if not first of all the powers of Latin America in capacity to make trouble, was the now forgotten but then world-famous General Artigas, who held sway with various ebbs and flows of fortune on the east bank of the La Plata River in the old Spanish intendency of Banda Oriental, called by him the Oriental Republic, and now known as the independent Republic of Uruguay. Any recognition of his claims would have given offence, not only to Spain, but to Portugal, and even to Buenos Ayres, for all three laid claim to his territory, and with all three he was at war. His main city, Montevideo, was generally in Portuguese control. Yet cruisers under the "Artigan flag," and claiming to be commissioned by Artigas, were on all the seas. They did the main injury complained of by the Portuguese government. H. R. Ex. Doc. No. 53, 32d Cong. 1st sess. pp. 193-200; see also The Gran Para, 7 Wheat. 471. Notices of his proceedings are to be found in 4 American State Papers, Foreign Relations, at pp. 173, 174, 218, 219, 221, 225, 250, 268, 274, 288, 289, and in argument of counsel, 7 Wheat. pp. 476-481. His country had been claimed by both Spain and Portugal. Portugal had surrendered it in 1778, but renewed the claim when the South American revolutions broke out. It was the Portuguese who finally conquered Artigas, and the country was then for a time annexed to Brazil. In 1817 and 1818 the Artigas revolt Mr. Whitney's Argument for the United States. seems generally to have been regarded as directed against Portugal rather than against Spain, but Monroe's recognition of belligerency in December, 1817, applied only to "the contest between Spain and the colonies," as was pointed out by Attorney General Wirt. 1 Op. Attys. Gen. 249. (c) Hayti. This unfortunate island had long been free from the sovereignty of France, but its independence had not been recognized by us, and was not so recognized prior to 1862, because it was under negro domination. At that time it was divided between two negro chieftains who were engaged in a bloody contest, but whose belligerency had not been recognized. As stated by Attorney General Wirt (ut sup.), "our Government had never acknowledged those sovereignties, not even by the recognition of a civil war between themselves or their mother countries." Henry Clay said that "we had not recognized the war as a civil war, etc., or in any manner so regarded it as that a case arising under it in our courts could be viewed in the same light as a case occurring in the existing conflict in South America." Annals of Congress, March 18, 1818, p. 1425. (d) Amelia Island and Galveston. These places were the rendezvous of privateers, Aury (their best-known leader) claiming the right to fly the Venezuelan, Artigan, and other revolutionary flags. 1 Whart. Int. Law Dig. § 50a. They were practically pirates, as stated by Monroe in his message of 1817. Counsel further argued that the insertion of the words "district or people" in the act of 1817, which was by amendment adopted without debate on January 28, was probably due to Attorney General Rush, who was then preparing for argument the case of Gelston v. Hoyt, 13 Johns. 141, 561, 590; 3 Wheat. 246, 278. But that case rélated to the contest between the Haytian chieftains aforesaid, neither of whom was recognized as a belligerent. It may be added that John Forsyth, who had had charge in the House of Representatives of the acts of 1817 and 1818, was Secretary of State at the time of the revolution in Texas. He evidently then regarded the operation of these acts as in nowise dependent upon a recognition of belligerency. He Mr. Whitney's Argument for the United States. directed the district attorneys beforehand to enforce these laws "should the contest begin." H. R. 24th Cong. 1st sess. Doc. No. 256, p. 36, and directed prosecutions for enlistment in the insurgent cause before the independence of Texas was declared. Id., p. 37; see p. 3. In 1837 an insurrection broke out in Canada. Belligerency of the insurgents was never recognized. Van Buren, in his annual message of 1838, shows clearly that he regarded them in the same light in which the present Cuban insurrectionists have been regarded. A neutrality act was passed, however; and the words "colony, district or people" were regarded as sufficient for the case. Act of March 10, 1838, c. 31, §§ 1, 2, 5. The act expired in two years by its own limitation, § 9. If any executive recognition is necessary to put the statute in operation, that recognition had been given when the libel was filed, by the messages and proclamations of President Cleveland. When a vessel belonging to citizens of the United States commits hostilities upon the high seas against a friendly power, her act is prima facie piratical. She is forfeit, and her owners, officers and crew are liable to be hanged. See The Ambrose Light, 25 Fed. Rep. 408, and auth. cit.; Lawrence, International Law, § 122; Dana's Wheaton, § 124, note. If the act is done in the interests of a colony, district or people struggling for independence, then it is freed from this imputation, and the punishment is under a different and milder law. How is the existence of such a contest to be established? It is matter of judicial notice, not proof. It is not in its nature susceptible of proof by witnesses, and, besides, from motives of policy the judiciary looks to the Executive for information. As the present insurrection is for independence it is not necessary to inquire whether the pursuit of this object is a prerequisite to the operation of the statute. This does not appear to be required, and the statute seems equally applicable to revolts for the control of an already established state, like the recent Chilean war, or for civil rights, like our Revolution Mr. Phillips' Argument for Appellees. before July 4, 1776, the Buenos Ayres revolution before 1816, and the recent proposed revolt in Johannesburg. The bond or stipulation for the release of the vessel pending suit is not authorized by law; and, if authorized, should have been denied in the case of so serious a charge, in the absence of a defence upon the merits and of an affidavit of merits. Mr. William Hallett Phillips for appellees. From the variety of ways in which it is attempted in the libe to state what constitutes "a people," it is evident that the government experienced much difficulty in making the law agree with the facts. In some places it is alleged that the people referred to were certain persons, insurgents, revolutionists, engaged in armed resistance to the government of Spain. There is throughout the libel an endeavor on the part of the Attorney General to show a status of "a people," so that it should appear he does not refer to a people meaning simply persons. But the endeavor to escape from this meaning of individuals has not been successful, because, take as you will these various statements of "a people," arrange the designations as you may, the matter comes to this, that the reference after all is only to unorganized individuals - persons; and that is the signification which the court must draw from the use of the words "a people" in the libel. The Attorney General has attached too much significance to the question of belligerency. He seems to regard this question as the controlling one in the case. But the decree does not rest upon this point. Belligerency is only important as showing that to constitute "a people," within the meaning of the act, there must be either an actual independent state, or a power de facto, and that power de facto may or may not be recognized as belligerent. The real question is this: Can there be any proceeding under section 5283 against parties charged with fitting out a ship for the purpose of being employed by a state or "a people," unless it is shown that there exists a state in every sense of the word; a state among the family of nations, or else a de facto |