"All captures made by means of such equipments are "illegal in relation to such nation; and it is competent to her "Courts to punish the offenders; and, in case the prizes taken "by her are brought infra præsidia, to order them to be "restored.

"These principles are believed to be fully warranted by the "general law of nations, by the decisions of the Courts of this "country, and by the laws of the United States."

The Act of June, 1794, is then quoted, and the judgment proceeds :-

"Thus, if there were any doubt as to the rule of the law of "nations upon this subject, the illegality of equipping a foreign "vessel of war within the territory of the United States is "declared by the above law; and the power and duty of the proper Courts of the United States to restore the prizes "made in violation of that law is clearly recognised."*

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The next case has been referred to again and again in the discussions on this subject, and is known as the case of the Santissima Trinidad. These are the facts. The Independencia was originally built and equipped in Baltimore as a privateer during the war between the United States and Great Britain. After the peace she was converted from a schooner to a brig and sold. In January, 1816, her new owners, inhabitants of Baltimore, put on board a cargo of munitions of war. She was then armed with twelve guns, part of her original armament, and sent out on a voyage ostensibly to the north-west coast of America, but in reality to Buenos Ayres; and the supercargo had written instructions to sell her to the Government of Buenos Ayres, if he could obtain a suitable price. She arrived at Buenos Ayres, sailing under the protection of the American flag, and “having exercised no acts of hostility." There she was sold. Soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres. The captain himself, who had brought her out, told the fact to the crew, and as

*The Brig Alerta, 9 Cranch. 359. † 7 Wheaton's Reports, 283.

serted that he had become a citizen of Buenos Ayres, and had received a commission to command the vessel as a national ship, and invited the crew to enlist. The greater part enlisted. From that time her avowed character and reputation was that of a public ship of war, belonging to the Government of Buenos Ayres, which was then at war with Spain.

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The following passages are extracted from the judgment:"The question as to the original illegal armament and outfit of "the Independencia may be dismissed in a few words. It is apparent, that, though equipped as a vessel of war, she was "sent to Buenos Ayres on a commercial adventure, contra"band indeed, but in no shape violating our laws or our "national neutrality. If captured by a Spanish ship of war "during the voyage, she would have been justly condemned "as good prize, and for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws "" or in the law of nations that forbids our citizens from send"ing armed vessels, as well as munitions of war, to foreign 66 ports for sale. It is a commercial adventure which no "nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bonâ "fide sale (and there is nothing in the evidence before us to "contradict it), there is no pretence to say that the original "outfit on the voyage was illegal, or that a capture made after "the sale was, for that cause alone, invalid."

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We

Up to this point we have a commercial adventure. come next to the events which brought her under the cognizance of the Supreme Court of the United States. She sailed from Buenos Ayres on a cruise against Spain, and, after visiting the coast of Spain, put into Baltimore. She was received as a public ship, and underwent considerable repairs. For this purpose her guns were taken out and replaced without any addition to her armament. During her stay in Baltimore, about thirty sailors were enlisted.

She then went out on a cruise, in which the property in dispute was captured. The judgment thus continued:

"The Court is therefore driven to the conclusion that there "was an illegal augmentation of the force of the Indepen"dencia in our ports, by a substantial increase of her crew; "and this renders it wholly unnecessary to enter into an investigation of the question, whether there was not also an "illegal increase of her armament."

Nor was this all. A privateer had been sold under an order of the Court of Virginia, together with the armaments and munitions of war on board. She was purchased by an ostensible buyer, but immediately transferred to the captain of the Independencia. She went to Baltimore, and was called the Atravida, and attached to the Independencia as a tender. Part of her armament was mounted, and a crew of about twentyfive men put on board at Baltimore. This was on the evidence of the captain. Upon this part of the case the Court said :

"Here, then, is complete evidence of an illegal outfit of the 66 Atravida, and an enlistment of her crew within our waters "for the purposes of war. The Atravida must be considered 66 as attached to, and constituting a part of the force of, the "Independencia; and so far as the warlike means of the latter were increased by the purchase, her military force must be "deemed to be augmented.

"And here we are met by an argument that the augmenta❝tion of the force of the Independencia within our ports is not an infraction of the law of nations, or a violation of our neutrality; and that, so far as it stands prohibited by our municipal laws, the penalties are personal, and do not reach the case of restitution of captures made in the cruise during which "such augmentation has taken place. It has never been held "by this Court, that an augmentation of force or illegal outfit "affected any captures made after the original cruise was ter"minated. By analogy to other cases of violations of public "law, the offence may well be deemed to be deposited at the "termination of the voyage, and not to affect future transactions.

"But as to captures made during the same cruise, the doctrine "of this Court has long established that such illegal augmenta❝tion is a violation of the law of nations, as well as of our own

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municipal laws; and as a violation of our neutrality, by "analogy to other cases, it infects the captures subsequently "made with the character of torts, and justifies and requires a "restitution to the parties who have been injured by such mis"conduct. It does not lie in the mouth of wrongdoers to set up a title derived from a violation of our neutrality."

This case grew out of the South American war of independence. The revolutions of South America naturally raised several questions relating to the obligations of the United States as a neutral Power. The sympathy of their people was on the side of the revolted colonies, and attempts to assist them by enlistment and privateering were set on foot. The New States were still unrecoguised, and there was a doubt whether the Act of 1794 referred to unrecognised States, or was confined to those that were recognised. To meet the difficulty, the law was amended by the Act of the 20th of April, 1818, which forms the present law of the United States. To the words "prince or state" in the old Act were added "colony, district, or people" in the new Act. But, as regards the general principle, the decisions under the former Act illustrate equally the latter. It will be useful to quote the two sections relating to equipments, for the purpose of comparison with our own law.

"Sect. 3. And be it further enacted, That if any person shall, "within the limits of the United States, fit out and arm, or 66 attempt to fit out and arm, or procure to be fitted out and "armed, or shall knowingly be concerned in the furnishing, "fitting out, or arming of any ship or vessel, with intent that "such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to "cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, "district, or people with whom the United States are at peace, or shall issue or deliver a commission within the territory or

jurisdiction of the United States for any ship or vessel, to the "intent that she may be employed as aforesaid, every person "so offending shall be guilty of a high misdemeanor, and "shall be fined not more than ten thousand dollars, and im"prisoned not more than three years: and every such ship, "with her tackle, apparel, and furniture, together with all "materials, arms, ammunition, and stores which may have been "procured for the building and equipment thereof, shall be "forfeited-one-half to the use of the informer, and the other "half to the use of the United States."

"Sect. 5. And be it further enacted, That if any persons "shall, within the territory or jurisdiction of the United States, "increase or augment, or procure to be increased or augmented,

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or shall knowingly be concerned in increasing or augmenting, "the force of any ship of war, cruiser, or other armed vessel, "which, at the time of her arrival within the United States, 66 was a ship of war, or cruiser, or armed vessel in the service "of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such "prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, dis❝trict, or people with whom the United States are at peace, by "adding to the number of the guns of such vessel, or by "6 changing them on board of her for guns of a larger calibre, "or by the addition thereto of any equipment solely applicable "to war, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than one "thousand dollars, and be imprisoned not more than one year."

The unsettled condition of Buenos Ayres gave rise to another case, decided in 1821. The Irresistible was built at Baltimore in 1817, and was constructed for purposes of war. In the spring of 1818, she was manned by a crew of about fifty men, and cleared out for Teneriffe, having in her hold twelve eighteen-pounders with their carriages, small arms, and ammunition, entered outwards as cargo. She went to Buenos Ayres, where she remained for some weeks, during which time her crew was discharged. Her owner then obtained