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

outrage upon his flag, and refusing 70 resume ms
command On the same day, and after me return
Of Commodore Fitton TO his own ship, he opened a
with Capt. Voorhees, renewing his
protest; but proposing to resume his command, and
leaving the adjustment of the matter to their respec
tive governments, 10 compromise the ahaii as pc
tween himself and Capt. Voorhees,, provided The
latter would give the Argentine flag, when hoisted,
accused refused to do, unless Commodore Fitton
would salute him first; and at this point closed me
At The same time with the capture Of the Argen-
tine squadron, Capt Voorhees, caused the release OF
all the Montevdean prisoners found on board Their
vessels together with some hshlng-boats heio as
prizes He also took from one of the vessels OF the
so uadron FIVE or six seamen in the Argentine ser
vice, upon their personal representations mat ,ney
were Americans serving under voluntary enlist
ment, which had expired.
On the Sd of October following, the Argentine
commander of the blockading squadron gave writ
ten notice TO Capt. Voorhees,, of the re-estabish-
ment of the blockade, which had been interrupted
by the capture of the squadron; which notice Capt
Voorhees, acknowledged on the 5th Of that month.
But, on the Odd of the same month, he gave writ
ten notice TO the commander OF the bockading
squadron that he (Capt. Voorhees) should no longer
permit American merchant vessels to be visited and
thereupon the blockade was suspended as to such
vessels, in consequence of this interference, from
that date until the Sd of November following; when
the right Of the Argentine government to enforce
blockade was restored by order of Commodore Tur-
ner, commander-in-chief of the American naval
forces, who had arrived off Montevideo the 18th OF
October and taken the command.
After an investigation of these transactions, Com
modore Turner also ordered the release of the San
GALA and her officers and crew, on the 2lst OF Mo-
vember; up to which time she had been held by
Capt. Voorhees, prize, and her officers and crew
as prisoners.
hr IL. Ill g . rsaJ fba Area
tine government and General Oribe having officially
complained to the government Of the United States,
and trial of the accused having been ordered, this
court, in the high responsibility devolvng on them,
are now called upon to pass upon the conduct OF
Capt Voorhees,, as the same shall appear IN the tes-
timony, and to apply with impartial JUSTICE the
rules of international law that should govern the
intercourse between the United States and friendly
powers; not with any reference to their relative
strength or importance, but solely of their respective
rights.
The weaker the friendly power that complains of
wrong, the higher is the obligation Of the stronger
power to redress that wrong; and especially does It
become the justice and magnanimity of the United
States to rgidly observe this obgatlon and enforce
it upon those she intrusts with the command Of her
naval and military forces. But, at the same time,
the weaker power must not wrongfully assail, and
then assume impunity or forbearahce on the ground
of its weakness
Whether there were, in the case Of the accused
such ustifable provocation and imminent attack, as
authorized or excused an immediate repelling force,
and retaliatory assault will be an important con-
sideration in his defence
The principles Of law involved in the several
matters of specification, and which the judge advo-
cate respectfully suggests to the COURT to aid them
in the application ofthe evidence and to apprze the
accused of the grounds on which the prosecution
will mainly rest, are
First, as to the SEIZURE of the Sancala. Was she
sailing under false flag, with authority to ex-
ercise bellgerent rights or, her attack upon the
American barque Rosaba, piratcal act, which
outawed her; or was it such an aggression as justi-
fed her subsequent capture and detention?
The seizure of that vessel was unquestionably
ustifable, if she had committed piracal act; and
single act of piracy is sufficient to outlaw the par
ty committing it-(5th Wheaton's Reports, 6l2.
Vattell, chapter Is, section 226 III Wheat. 81
the Mariana Flora.
But petty aggression is not an act of piracy and
is no cause of condemnation, unless it indicates bad
mnd.-[l2 Wheaton, l5-the Pamyral Thus a
mere assault without pillage, or an insult to ma
tional flag, is not piracy. That detestable crime
(aside from engaging in the save-trade) is, in gen.
eral terms, sea-robbery Other acts may constitute
piracy, under the laws of the United States; but
they are not applicable to this case[Act of United
States of 18th May, 1920, section 3-Gordon's Dig.
p 3l72] Unless, within these rules oflaw, pirat-
cal act is proved, the seizure cannot be justified
that ground of defence.
.Neri, as to her right to the flag under which she
assumed to exercise belligerent rights. The va
ldity of the authority under which vessel
sails, and the flag she bears, are material in
determining her right to be respected in the
character she assumes. When she committed the
act in reference TO the barque Rosalba, the Sancaa
was acting under the commission and authority, as
will appear, of General Oribe alone; and not Of the
Argentine squadron, with which she had not then
communicated. She was pursuing the capture of
boats belonging to the beseged party, with which
General Orbe, claiming to be the legal President of
Uruguay, was at war; in alliance cooperation
with the Argentine government. The national
rights Of that government unquestonable. The
rights of General Oribe, in this respect are more
questionable. But it is well settled, that the au-
thority under which an armed vessel exercises
belligerent rights, need not necessarily be recog
Missed government. Thus, If there be civil war
subssting in foreign nation, and part Of such ma
ton erect distinct and separate government, and
the United States recognise the existence of civil
war, our courts do not consider criminal the hos
tile acts against the enemy by the new government.
70 Wheaton, 643, United States Us. Palmer. And
each party il considered and treated as begerent
nation; and the vessels employed by such govern
ment may prove their employment in like manner
as vessels employed by an acknowledged State. IL
Wheaton, 1886 and 337-the Santisima Trinidada.
The doctrines of recognition which the govern
ment of the United States applies to the beigerent
ognised power engaged in war, was settled as
American national law in 1886, in the case of the
Texan armed schooner Invincibe. The American
brig Packet, from New Orleans, bound to the
Brassos, was captured by the Texian vessel Irwin
cible acting under Texian commission, and sent
into Galveston prize, on the ground of having
on board provisions for Santa Ana, with whom the
revolted province of Texas was at war, and before
Texas was, in any form, recognised by the United
States.
Commodore Dallas, then commanding the United
States naval forces in the Gulf of Mexico, regard
ing this as an act Of piracy by vessel having no
authorized flag, caused the lnvincbe to be cap
tured, and sent to New Orleans for adjudication.
Upon demand for restitution upon this govern
ment, the Attorney General Of the United States
(B. +. Butler esq., gave his opinion, which was
sanctioned by the government, and carried into eff
feet: "that when civil war breaks out in a for
eign nation, and part Of such nation erect distinct
and separate government and the United States,
though they do not acknowledge the indepen-
dence of the new government, do yet recog-
mise the existence of civil war; our courts have
uniformly regarded each party as belligerent