case, to Mr. Adams by Earl Russell. In a great majority of instances, even when Mr. Dudley or Mr. Morse (the United States Consul) had stated and reiterated their suspicions and belief, with the utmost confidence, and had supported it by hearsay statements, or hearsay deposi tions, in which mention was often made of the connection of Captain Bullock, and of the firms of Fraser, Trenholm & Co., Fawcett, Preston & Co., and W. C. Miller & Sons, or one or more of them, or other known or suspected Confederate agents, with the vessels in question, the belief of the local authorities, that the law had not been, and was not about to be, infringed, proved to be well founded. In the cases of the Florida and the Alabama, inquiries were made by the Custom-house officers, among other persons, of the builders of these ships, and other information was obtained by those officers, which was duly reported to Her Majesty's Government. Earl Russell made inquiries concerning the Florida of the Italian Government; and the zeal and activity of the proceedings of Commanders McKillop and Hinckley, at Nassau, with respect to that ship, will not be called in question. It was by means of a very difficult investigation, conducted by Her Majesty's Government, through their own Agents in France, Egypt, and elsewhere, that the evidence applicable to the rams at Birkenhead was brought up to the point necessary to establish a "reasonable ground for belief" that those rams were really intended for the Confederate service.

Nor is there any trace of proof, in any part of the voluminous Appendices to the Cases and Counter Cases on either side, that the various officers of the Customs and other civil or naval authorities to whom the duty of taking proper measures for the discovery and prevention of offenses against the Enlistment Act was intrusted, neglected any proper means, which they could and ought to have used, to obtain information or evidence. It was not, indeed, their practice to search out and interrogate all persons who might be criminally implicated by any accusation; because such persons are not obliged, by British law, or according to the general principles of justice, to answer any questions tending to criminate themselves; and also because the general experience of those accustomed to the administration of the law is, that statements voluntarily made by such persons, if really guilty, are not likely to be of assistance in the discovery of truth. Nor was any general system of espionage established; though, on what were considered proper occasions, (see British Appendix, vol. ii, page 169,) the agency of detective officers was employed by the municipal authorities for these purposes. Such a general system would be contrary to the genius and spirit of British institutions; it cannot be pretended that, to establish such a system, was part of the "diligence due" by any free country to any foreign nation. But, speaking generally, everything was done which, in the usual and proper course of the civil and political adminis tration of affairs by the Executive Government of Great Britain, ought to have been done; and, if these means were not sufficient, in all cases, to discover and prevent (though they did prevent in most cases) the violation of the law, the experience of the British Government, in this respect, was only the ordinary experience of all Governments, with respect to the occasional success and impunity of every species of crime.

VIII. Results of the Administrative System, and of the practice with respect to evidence of the United States in similar cases.

In a question of due diligence between Great Britain and the United

evidence from those

tion.

States, it cannot, with any show of justice or reason, be con- 31. Necessity and sidered irrelevant, that the general system and principles, propriety of seeking with respect to evidence and otherwise, on which the British who give informaGovernment acted throughout these transactions, were substantially the same as those which have been usually and in good faith acted upon, in similar cases, by the Executive Authorities of the United States. A neutral Government, though it ought spontaneously to use all proper means of discovering and preventing violations of law, which are really within its power, may, in many cases, not have the same means of knowledge which the agents of a foreign Government (to which those illegal acts would be dangerous) may happen to possess; and, when its information proceeds from those agents, it is both natural and reasonable that they should be requested to furnish evidence in support of their statements. In transactions of this kind (as Mr. Dudley stated to Mr. Seward in his first letter about the Florida, February 4, 1862, with respect to that vessel) "there is much secrecy observed;" and, when this happens, (as in ordinary cases of crime,) the preventive powers of the law cannot be called into activity, without some timely information; and the persons who give that information are usually able, and may properly be requested, to produce some evidence in its support, if such evidence is really forthcoming.

32. Mr. Jefferson's

5, 1793.

Mr. Jefferson, in his letter to Mr. Hammond, dated the 5th September, 1793, (annexed to the Treaty between Great Britain and the United States of the 19th November, 1794,) after promising letter of September to use all the means in the power of his Government to restore British prizes captured by vessels "fitted out, armed, and equipped in the ports of the United States," and brought into any of those ports by their captors after the 5th June, 1793, and acknowledging the obligation to make compensation for such prizes, if such means for their restitution should not be used, added the following just and reasonable remarks:

Instructions are given to the Governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports. Though they will, of course, take measures to be informed of them, and the General Government has given them the aid of the Custom-house officers for this purpose, yet you will be sensible of the importance of multiplying the channels of this information, as far as shall depend on yourself or any person under your direction, in order that the Governors may use the means in their power for making restitution. Without knowledge of the capture, they cannot restore it. It will always be best to give notice to them directly; but any information which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit.1

33. The onus im. claimants against the

Commissioners of the

Claims under

When the questions of compensation, claimed by the owners of captured British ships, which had not been restored according to this letter, came for decision before the Commissioners posed non British under the Treaty of 1794, no such claim was allowed, except United States by the when the claimant had substantiated his legal right to have the prize restored by a regular judicial proceeding, properly conducted before the proper Court of the United States; which, of course, threw upon him, in all such cases, the burden of proving, by legal evidence, the illegal outfit and armament, within the jurisdiction. of the United States, of the capturing vessel.2

treaty of 1794.

34. Uniform reference of the Execu tive authorities of the United States in

Extracts are here subjoined from some of the letters of the various authorities of the United States (to which reference has been already made) during the wars between Spain and Portugal, and their revolted Colonies in 1816-1820; and, more recently, at the time of certain designs against Cuba, in 1869. These will be found to throw some light upon the

1 British App., vol. v, p. 256.

2 Case of the Elizabeth, British App., vol. v, p. 319–328.

similar cases to legal procedure, and the evidence.

necessity for legal

functions and powers of the District Attorneys and Marshals of the United States, and on the practical rules by which the exercise of their functions and powers has always been governed.

On the 4th September, 1816, Mr. Glenn (District Attorney for Maryland) wrote to the Spanish Consul, (Chacon,) in answer to certain representations made by him:

I must beg leave to suggest that my powers are merely legal, and not political. I have already the power, when I am officially informed, in a legal manner, of any violation of the laws of the United States, to institute a prosecution against the offenders, and conduct the same to a final issue; and I hope I shall always be ready and willing to go thus far on all proper occasions. If an armament be fitting out within the district of Maryland for the purpose of cruising against the subjects of the King of Spain, it is a breach of our laws, and the persons concerned therein are liable to punishment; but before I can take any legal steps in the affair, the facts of the case must be supported by affidavit taken before some Judge or Justice of the Peace, and when that is done, I will, without delay, proceed to call upon the offenders to answer for a breach of our laws. If, therefore, you will be pleased to furnish me with the names of any witnesses who can make out the case which you have stated, I will at once have them summoned, if within the reach of the process of our Judges or Justices, and attend to taking their depositious, or, if you have it in your power to bring within this district any persons who can testify on the cases referred to, I will be prepared to receive the statements on oath as the foundation for a judicial inquiry into the conduct of the offenders. I shall here take occasion to say that I cannot proceed in the cases you have mentioned upon the mere suggestion of any person, unless that suggestion be accompanied by an affidavit. (Documents accompanying the Counter Case of the United States, part ii, pages 39, 40.)

On the 25th February, 1817, the same District Attorney wrote to Mr. Monroe, Secretary of State:

You are well aware I cannot proceed to arrest persons and proceed under the laws of our country, for a breach of those laws, upon a mere suggestion alone; but whenever a suggestion shall be accompanied by anything like proof, I will take great pleasure in prosecuting the offenders to punishment, and their property to condemnation, in all proper cases. (Ibid., pages 55, 56.)

On the 28th March, 1817, Mr. Rush (Acting Secretary of State) wrote to Mr. Mallory, Collector of Customs at Norfolk, directing him to make inquiry into the cases of two armed vessels, the Independence of the South and the Altravida, which had then lately arrived at Norfolk from voyages, in the course of which they had cruised against, and made captures of, vessels or property belonging to the subjects of the King of Spain.

If [said Mr. Rush] there be any proof of their having committed, or of their intending to commit, an infraction of any of the laws or Treaties of the United States, you will cause prosecutions, subject to the advice of the Attorney of the United States, to be instituted against all parties concerned, or such other legal steps taken as events may make necessary and justice require.

And on the same day, Mr. Rush also wrote to Mr. MacCulloch, Collector of Customs at Baltimore, directing inquiries to be made as to another vessel called the Congress:

If [he said] there be any sufficient proof that this vessel either has committed, or that she intends to commit, a breach of any of the laws or Treaties of the United States, you will advise the District Attorney, and cause prosecutions to be forthwith instituted against all parties concerned, and such other steps taken, whether with a view to prevent or punish offenses, as justice requires, and the laws will sanction.

On the 11th of April, 1817, Mr. Collector Mallory, having been requested by Don Antonio Villalobos to detain the Indepencia del Sud and the Altravida, and certain goods (in fact, prize goods) landed from that vessel, for alleged violation of the Act of Congress of 1794, answered by the request―

That I may have the aid of every light to guide me which facts can afford, and es the allegations made by you, in an official form, must be presumed to be bottomed on positive facts which have come to your knowledge, you will have the goodness, I trust, to furnish me with evidence of their existence in your possession.

The Spaniard replied, (12 April, 1817:)

With regard to the evidence you require, I will not hesitate to say that, as the facts I have stated are matter of public notoriety, known to everybody, and I had no reason to suppose yon were ignorant of them, I did not deem it incumbent upon me to add any proof to the simple narration of them; and I was confident that, by going on to point out to you the stipulations and laws which are infringed in consequence of these facts, you would think yourself authorized to interfere in the manner requested.

He then mentioned several circumstances, justifying (as he thought) a strong presumption of illegality against those vessels, as "known facts," and added:

If these public facts, falling within the knowledge of every individual, require more proof than the public notoriety of them, I must request to be informed as to the nature of that proof, and also whether you are not warranted to act upon just grounds of suspicion, without that positive evidence which is only necessary before a Court of Justice. Mr. Mallory rejoined, (14 April, 1817:)

From the view I have taken of the facts, as now stated by you, which it is to be presumed are to be regarded as specifications under the more general charges set forth in your letter of the 10th instant, I must really confess I do not at present see grounds sufficient to justify the steps you require me to take against the armed vessels now in this port, and the merchandise which has been permitted to be landed from them and deposited in the public store.

He then observed that, if the facts alleged as to the original equip ment of the Independencia were to be taken as true, they did not clearly or unequivocally prove that her original equipment in, or dispatch from, the United States was unlawful; and, with respect to a subsequent alleged enlistment of men in the port of Norfolk, he stated that he was engaged in inquiries, in order to be satisfied upon that point before the vessel was permitted to sail, and to be governed by the result, "although," he said, "it does not appear to be perfectly certain that such an augmentation of their force is interdicted by the Act of Congress of the 3d of March last, which, being a law highly penal in its nature, will admit of no latitude of construction. (British Appendix, vol. iii, pages 112-114.)

This correspondence has the more interest, as relating to the case, in which the legality of the dispatch of the Independencia (fully armed and equipped) from an American port to Buenos Ayres, for sale there to the belligerent Government of that revolted colony, and the illegality of her subsequent augmentation of force, became the subject of decision by Mr. Justice Story in the well-known prize-suit of the Santissima Trinidad.

On the 16th September, 1817, the Spanish Consul, Mr. Stoughton, wrote to Mr. Fisk, (District Attorney for New York,) stating a case of illegal enlistment of men, then alleged to be in progress on board a Venezuela privateer schooner called the Lively, or the Americano Libre:

Now, [he said,] as there must be provisions in the laws and Treaties of the United States vesting an authority in some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, I make this application to you, most urgently requesting you to take whatever measures may be necessary immediately, in order to prevent the departure of the above vessel, at least until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning. Indeed, if an inquiry were instituted, I am induced to believe the above brig would be found to be a pirate.

In support of this application, two depositions of persons, who stated that attempts had been made to induce them to enlist on board the vessel in question, were sent on that and the following day. Mr. District Attorney Fisk replied, on the 17th September, 1817:

I have duly received your notes of yesterday evening and of this day, and have

referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the Collector in detaining the vessel. The aggression is to be punished in the ordinary mode of prosecuting those who are guilty of misdemeanors. Oath is to be made of the facts by the complainant, who enters into a recognizance to appear and prosecute the offenders before any process can issue. This oath being made and recognizance taken, the Judge of the Cirenit Court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the Attorney of the United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have I the power to issue any process to arrest and detain the vessel in question, unless by the direction of an Executive officer of the United States. By adverting to the statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on board, or for hiring or retaining another person to enlist: the punishment is personal to the offenders, It is impracticable for me, or for any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an illegal transaction. (British Appendix, vol. iii, pp. 119, 120.)

*

*

*

*

This precedent will, it is trusted, be borne in mind whenever the Arbitrators may have occasion to consider the questions connected with the enlistment of certain men on board the Shenandoah on the night of the departure of that vessel from Melbourne in 1864.

On 30th September, 1820, Mr. Secretary Adams wrote thus to the Portuguese Minister, the Chevalier de Serra:

The judicial power of the United States is, by their Constitution, vested in their Snpreme Court and in Tribunals subordinate to the same. The Judges of these Tribunals are amenable to the country by impeachment, and if any Portuguese subject has suffered by the act of any citizen of the United States within their jurisdiction, it is before these Tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States, committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible.

The Government of the United States have neither countenanced nor permitted any violation of their neutrality by their citizens. They have, by various and successire acts of legislation, manifested their constant earnestness to fulfill their duties toward all parties to that war. They have repressed every intended violation of them which has beer brought before their Courts, and substantiated by testimony, conformable to principles recognized by all Tribunals of a similar jurisdiction. (British Appendix, vol. iii, pp. 157, 158.)

On the 14th May, 1869, Mr. Hoar, Attorney-General of the United States, thus instructed Mr. Smith, District Attorney for Philadelphia: Whenever complaint is made against any vessel on trustworthy evidence sufficient to establish before a Court of Justice probable cause to believe that such vessel is forfeitable for a violation of the Neutrality Laws, you are instructed to file a libel, and arrest the vessel. (Documents accompanying the Counter Case of the United States, Part iii, p. 743.)

On the 17th May, 1869, Mr. Pierrepoint, District Attorney of New York, wrote to Mr. Attorney-General Hoar with respect to certain vessels called the Memphis and Santiago, accused of a hostile destination against Cuba:

There is no evidence, as yet, on which to detain them. I would suggest that if the Span ish Minister would instruct the Spanish Consul here to take some pains and collect some ecidence relating to these matters, and bring it to my notice, I shall act with the greatest promptness.

On the 11th May, 1869, Attorney-General Hoar, forwarding this let ter to Mr. Secretary Fish, said:

The several District Attorneys are instructed that, whenever sufficient evidence is medi known to them to establish before a Court of Justice probable cause to believe that any vessel is forfeitable for a violation of the neutrality laws, they are to file a libel and arrest the vessel. (Cuban Correspondence, 1866-71, presented with the American Counter Case, pp. 58, 59.)

On the same day, Mr. Attorney-General Hoar sent, as general instructions to the United States Marshals, a copy of a letter addressed the 20th of May to the Marshal for the Southern District of New York, which contained the following passage:

It is not deemed best, at present, to authorize or require you to employ detectives for the special purpose of discovering violations of the provisions of this Act, (the Act of Congress