according to the various circumstances under which they might be perpetrated." Mr. Adams, Sec. of State, to Mr. de Neuville, French min., Apr. 15, 1819, "THURSDAY, March 16, 1854. "Called at the Foreign Office by the invitation of Lord Clarendon. He presented me a printed treaty in blank, which he proposed should be executed by Great Britain, France and the United States. The chief object of it was that all captains of privateers and their crews should be considered and punished as pirates, who, being subjects or citizens of one of the three nations who were neutral, should cruise against either of the others when belligerent. The object undoubtedly was to prevent Americans from taking service in Russian privateers during the present war. We had much conversation on the subject, which I do not mean to repeat, this memorandum being merely intended to refresh my own memory. His lordship had before him a list of the different treaties between the United States and other nations on this subject. "I was somewhat taken by surprise, though I stated my objections pretty clearly to such a treaty. Not having done justice to the subject in my own opinion, I requested and obtained an interview for the next day, when I stated them more fully and clearly. The heads were as follows: "1. It would be a violation of our neutrality in the war to agree with France and England that American citizens who served on board Russian privateers should be punished as pirates. To prevent this, Russia should become a party to the treaty, which, under existing circumstances, was impossible. "2. Our treaties only embraced a person of either nation who should take commissions as privateers, and did not extend to the crew. Sailors were a thoughtless race, and it would be cruel and unjust to punish them as pirates for taking such service, when they often might do it from want and necessity. "3. The British law claims all who are born as British subjects to be British subjects forever. We naturalize them and protect them as American citizens. If the treaty were concluded, and a British cruiser should capture a Russian privateer with a naturalized Irishman on board, what would be the consequence? The British law could not punish him as an American citizen under the treaty, because it would regard him as a British subject. It might hang him for high treason; and such an event would produce a collision between the two countries. The old and dangerous question would then be presented in one of its worst aspects. "4. Whilst such a treaty might be justly executed by such nations as Great Britain and the United States, would it be just, wise or humane to agree that their sailors who took service on board a privateer should be summarily tried and executed as pirates by several powers which could be named? 66 5. Cui bono should Great Britain make such a treaty with France during the existing war. If no neutral power should enter into it with them, it could have no effect during its continuance. "6. The time might possibly come when Great Britain, in a war with the despotisms of Europe, might find it to be exceedingly to her interest to employ American sailors on board her privateers, and such a treaty would render this impossible. Why should she unnecessarily bind her hands? "7. The objections of the United States to enter into entangling alliances with Europeans nations. "8. By the law of nations, as expounded both in British and American courts, a commission to a privateer, regularly issued by a belligerent nation, protects both the captain and the crew from punishment as pirates. Would the different commercial nations of the earth be willing to change this law as you propose, especially in regard to the crew? Would it be proper to do so in regard to the latter? "After I had stated these objections at some length on Friday, the 17th of March, Lord Clarendon observed that when some of them were stated the day before, they had struck him with so much force after reflection, that he had come to the office from the House of Lords at night and written them down and sent them to Sir James Graham. In his own opinion the treaty ought not to be concluded, and if the cabinet came to this conclusion the affair should drop, and I agreed I would not write to the Department on the subject. If otherwise, and the treaty should be presented to the Government of the United States, then I was to report our conversation." Memorandum of Mr. Buchanan, minister at London, 2 Curtis' Buchanan, 128. An American citizen, fitting out a vessel in a port of the United States to cruise against a power with which the United States are at peace, is not protected, by a commission from a belligerent, from punishment for any offense committed by him against vessels of the United States. United States v. Pirates, 5 Wheat. 184. Citizens of the United States are forbidden by statute to take part in the equipment or manning of privateers to act against nations at peace with the United States. (Act of June 14, 1797, 1 Stat. 520, and April 20, 1818, 3 Stat. 447, 448.) Treaties making privateering under such circumstances piracy have been negotiated with England, France, the Netherlands, Prussia, Spain, and Sweden. H. Doc. 551-vol 2- -62 It is no defense to an indictment against a citizen of the United States, for statutory piracy, for taking a privateer commission from foreign insurgents not recognized by us as belligerents, that the depredations charged were under the color of such commission. Wirt, At. Gen. (1818), 1 Op. 249, 251. "The Government of the United States is prohibited by the laws of the Union from recognizing as a lawful Colombian privateer any vessel commanded, officered, and manned chiefly by citizens of this Union." Mr. Adams, Sec. of State, to Mr. Anderson, June 29, 1824, MS. Inst. See the acts of June 14, 1797, and April 20, 1818, forbidding citizens of the United States from taking part in the equipment or manning of privateers to act against the property of citizens of countries with which the United States are at peace. September 20, 1854, a treaty of amity and commerce, which was not afterwards ratified, was concluded between the United States and Venezuela, at Caracas. By art. 25 it was provided that, whenever one of the contracting parties should be engaged in war with another state, no citizen of the other contracting party should accept a commission or letter of marque for the purpose of hostilities against the former, under pain of being considered a pirate. Mr. Marcy, while approving the treaty in every other particular, expressed the opinion that this clause invaded the " constitutional prerogative" of Congress. "As the Constitution," said Mr. Marcy, "reserves to Congress the right to define piracy, this clause may be regarded as an assumption of power not granted to the Executive." He returned the treaty to the American minister at Caracas, and instructed him to explain to the Venezuelan Government this objection; and, if the Venezuelan Government adverted to the fact that a similar clause stood in several of the United States' existing treaties, he was to convey the assurance that the United States would endeavor to obtain a modification of them. Mr. Marcy, Sec. of State, to Mr. Eames, min. to Venezuela, Dec. 9, 1854, The Constitution of the United States provides that Congress shall have Uncommissioned cruisers. "On the sea all the subjects of one belligerent are the enemies of all the subjects of the other, and entitled to do all such acts as war justifies between the belligerent powers themselves. Hence, whilst there may be impediments in the way of a private uncommissioned ship retaining the captures it may make, or disposing of them in any way it may please, those impediments arise from the enactments of municipal law, and are not imposed by international law, which in no way affects this question. But, secondly, if a private ship belonging to one of the belligerents attack and capture the vessel of a neutral power, without a commission of war, the case is widely different; here the attacking vessel may be treated as a pirate by the vessel attacked, or by any vessel coming to her aid." Abdy's Kent (1878), 227. That a non-commissioned cruiser may seize for the benefit of the Government, see Carrington v. Merchants' Ins. Co., 8 Pet. 495. 4. SELF-DEFENSE. § 315. In June, 1873, the Spanish minister at London called the attention of the British Government to the steam yacht DeerCase of the "Deerhound, then at Plymouth, which was suspected of hound." being engaged in an attempt to convey arms to Spain for the use of the Carlists. The Deerhound was registered in the name of Colonel Stuart, a British subject, who was said to be secretary of the Carlist committee in London. The British Government, after consulting the law officers of the Crown, declared that it could not interfere in the matter. Late in July, the British consul at Bayonne reported that the Deerhound had called at that port, and, after obtaining a supply of coal, had again put to sea, and that the Spanish consul there had stated that she had previously taken in a supply of arms and ammunition at Havre, and had delivered them to the Carlists on the coast of Spain. August 13 the Deerhound was seized off the French coast by the Spanish cruiser Buena Ventura, and, with her crew, was taken to San Sebastian. She had on board at the time a considerable quantity of muskets and cartridges. The British minister at Madrid was instructed by Earl Granville to press the Spanish Government to give orders for the surrender of the vessel and the release of her crew, and to say that the immediate release of the crew was indispensable. The Spanish Government at first refused to release the vessel unless she was acquitted by a prize court. The British Government, on the other hand, declined to recognize the competency of a prize court in the matter, declaring that it could not admit "that legal jurisdiction can be assumed by the Spanish Government over a British ship which, in time of peace, has been seized on the high seas by a public ship of Spain." The Spanish Government gave orders for the immediate release of the crew and the placing of the vessel at the disposal of her captain, but subsequently stated that the vessel was released "because of her having been captured in neutral waters," and under the supposition that the British Government would impose on the owner the penalty he had incurred by his irregular proceedings. The British Government declined to present any claims for personal indemnity to the Spanish Government, on the ground, as Earl Granville declared, that persons who were engaged in such enterprises as that in question were "not entitled to the interference of Her Majesty's Government on their behalf in order to obtain compensation, either for personal loss or personal inconvenience to which they may have been subjected." On the other hand, Colonel Stuart was requested to pay without delay to the chief clerk of the British foreign office a sum of money advanced to him by the British vice-consul at Ferrol on account of Her Majesty's Government, in order to enable the Deerhound and her crew to proceed to a British port, which sum Colonel Stuart had undertaken to pay on demand. 65 Br. & For. State Papers (1873-1874), 508–527. For a reference to this case, see General Sickles, min. to Spain, to Mr. Fish, Sec. of State, Nov. 12, 1873, H. Ex. Doc. 30, 43 Cong. 1 sess. 24; Case of the "Virginius." In a note to Mr. Fish, February 2, 1874, Admiral Polo, in the course of an extended discussion of the various questions involved in the case of the Virginius, cited Phillimore to the effect that international law considers the right of self-preservation paramount to that of territorial inviolability, and where they conflict justifies the maintenance of the former at the expense of the latter. Admiral Polo applied this doctrine to the case. of a vessel transporting a hostile expedition or military supplies to insurgents. In reply, Mr. Fish said: "The learned minister of Spain seeks to maintain, by a citation from an eminent English publicist, that this right of transportation may be subordinated by the necessities of self-preservation in the government which is contending with an insurrection. It is not necessary for the undersigned to assent to or to deny the justice of this proposition in the extreme case and with the great limitations stated by Sir R. Phillimore. But the acute intelligence of Admiral Polo can not fail to perceive that the supposed act of self-preservation is none the less an act of war because alleged to be done in selfdefense; and the undersigned can not permit himself to assume that Spain maintains that such an invasion of the territory of another power as Phillimore refers to would confer upon the courts or military authorities of the invading nation the right to try and condemn, for alleged crimes, persons who might be captured on neutral soil. In the case of the Virginius, had Spain, after her capture by the |