The daily union. [volume] (Washington [D.C.]) 1845-1857, 1845-07-11
THE DAILY UNION.

lutte rights oil neutrality.
neutral merchant vessel has no right to shelter
on board, or transport the enemy of begerent--
[Wheaion's international Law, 326;l and the right
of visiting and searching such vessels, is AN incon-
testable belgerent right ibid, 345; and resistance
10 the exercise of such right is cause OF confsca-
35l.l The neutral must give no as
sstance to one belligerent against another Vattei
book 3, chap. 7, S lO4. Wheat. 29ll And it fol-
lows, that il he does so, by receiving shetering
the enemy on board his vessel, when pursued, the
neutral character is forfeited, and the enemy may
be pursued on board and captured, even with the
use of force If necessary
These principles and precedents OF sound sense,
well as law, should, in the opinion of the judge
advocate, be strictly applied by this court TO the
facts that may appear under the first specification
Second The second and third specifications, viz
the capture of the whole of the Argentine block
aiding squadron, and the forcible release Of their
prisoners and prizes, is still graver question, under
the duties Of an absolute neutral In hostile waters,
toward bellgerents, with all Of whom the govern
ment Of the neutral is in amity. The neutrality Of
the United States towards the Argentine govern
ment, in its war with Montevideo, and in the exer-
else of its begerent right Of blockade, an alb
solute neutrality and, as such, was enjoined upon
the accused by the orders of his COMMANDMENTS
chief In passing on question OF neutrality, 1t is
settled principle, that the court which determines
it, though held in the country whose citizens are
charged with the wrong, should decide the ques-
tons that arise exactly they would do, if sitting
in the country whose rights are to be adjudicated
upon.--[ Wheaton's Inter Law, p. 49l
In the case of the Swedish convoy, q Robin. AID.
Rep. 267, Phil ed--the Maria,) learned English
Judge (Sir w. Scott) said: "The law has no local
ity. Ii is the duty of the judge who sits here to
determine this question exactly he would deter
mine the question, if sitting at Stockholm-to
assert no pretensions on the part of Great Britain,
which he would not allow to Sweden in the same
circumstances"
This rule is to be applied to the capture of the
Argentine squadron, and the release of their prison.
ers of war; in the same manner as if the like acts
had been done to an American blockading force by
an armed neutral.
Whether the acts of the Sancala were Just
grounds other capture, is first to be consdered but
whether they were, or were not, the subsequent
capture of the squadron stands different and dis
tnct grounds. If the commander of the Argentine
squadron did not order justify any unlawful act
Of the Sancala before it was done, and wholly dis
claimed it afterwards; and if, in fact, she did not
Join his squadron until after the alleged act which
was committed without his knowledge, was done, it
would seem difficult to justify the subsequent cap
ure Of the squadron, on the ground of participation
in, responsibility for, the act which led to the
seizure of the Sancaa.
In respect to the alleged release of the prisoners
of one of the friendly governments, the well settled
rule is, that neutral among belligerens is bound to
strict impartiality between them. He is the COM
mon friend of both parties and is not at liberty TO
favor one, to the detriment of the other-[ Wheat.
Inter. Law, 2Sl.
The release Of prisoners held by one of the bel
gerents, is act which necessarily tends to weaken
one, and aid the other How far if at ALL the charac-
ter of the prisoners released, whether combatans
not would affect the act, is to be considered. In
this CASE the proof will show they enemy fish
ermen, whose occupation of supplying the besieged
place was interdicted. In some wars, (says Chitty
in his Treatise the Law Of Nations, p. 81, it has
been usual to make an exception in favor of small
fishing vessels, from tenderness to poor and indus
trious order of people, This, however, is matter
offorbearance, and not right Young, Jacob, and
Johanna, Robin. Ad. Reps, 1871
On the other hand, the accused is fully entitled to
the benefit of all the considerations and facts that
constitute what is termed in law, probable cause''
for seizure. In the civil courts, well-founded
ground of suspicion Of pracal character, has been
held an excuse, so far as TO relieve the unlawful
captors from damages. Mason's G, c. Reps.
24-the George.l
In the case of the Portuguese vessel, the Marian
ma Flora, III Wheat. Reps H. the Supreme Court
Of the United States held, that probable cause was
sufficient excuse for capture under circumstances
of hostile aggression at sea. That was case OF
capture Of the aboye-named vessel, by Lieutenant
Stockton, in the United States schooner Alligator,
while on cruise at sea for pirates. The Portu-
guese vessel, after making signals inviting approach
fired into the Alligator without cause, and was in
stantly senced by repelling broadside and cap
tured; and her papers, as well as her acts being
suspicious, she was sent in prize, as pirate.
This was at sea. The now to be considered,
occurred in roadstead, where the vessels concern
ed were at anchor, and with accredited diplomatic
agents of the United States resident at the govern
ments of the supposed aggressors.
Fourth. The fourth specification Of charge, is for
Of IF f,1.
Americans) of one of the armed vessels of friend
ly power. On the matter of such interference with
the armed vessels, or the merchantmen of the Uni
ted States, our government is peculiarly sensitive.
The case now presented will show an admitted reg
ular enlistment, and an alleged detention beyond
the period of such enlistment But, in the service
of the United States, seamen, under certain circum-
stances, may be lawfully held after the expiration
of their term of enlistment; and as we would not
permit IN our own case, neither must we exercise
upon the armed vessels of other nations an inter-
ference in the service, for such alleged cause unless
in extreme cases admitting no question of right.
The law of the United States unquesonably re.
cognses the right of expariaton Ifa citizen Of the
United States enls.s in the service of foreign gov
ernment he may, under some circumstances, be
subject to punishment in our courts; but he has no
claim to the protection ofhis country from the con-
sequences of his own act.
II has also been held, that an American citizen
may enter the land or naval service of foreign
country without compromising the neutrality of his
own governmental Brok G. C. Reps, 479, 486-
the Santisima Trinidada, and st. Andez, by c. j..
MARSHALL
Fifth. The only other legal consideration appli-
cable to the case is introduced in the alleged viola
ton Of blockade. The existence of modified block
AIDE, as to foreign merchant vessels, sustained by
sufficient forge, and notice of the same to the
ed, together with an acknowledgment of the block
AIDE by oil the American naval commanders on that
station, will be shown.
The right to blockade an enemy's port, with a
competent force, right secured to every belige-
rent by the law of nations. Even the merchants Of
the barbarous African states (which, in many re-
spects are not regarded as within the pale Of the
European laws Of nations) are not exempted from
strict observance of the law Of bockade.-[W Wheat
Inter. Law, p. 46.
What constitutes lawful blockade, as distinguish
ed from paper blockade, is now well settled to be
the presence of an actual force, sufficient to inter-
cept, or to make it hazardous for merchant vessels
to attempt to enter or leave the interdicted port
The instructions Of the Navy Department, which
will be found in the sailing orders, under which
Commodore Turner acted, in giving his orders to