"In 1815 the President of the United States allowed belligerent rights to the South American States and proclaimed a strict neutrality. This proclamation was recognized by the Supreme Court and other tribunals of the United States as the guide for their decisions." (Lord Russell to Mr. Adams, Aug. 30, 1865, Dip. Cor. 1865, I. 536, 540.) "The respective dates which your lordship has been kind enough to search out and record in your note sufficiently establish the fact how carefully all precipitation was avoided [by the United States] in judging of the issue [between Spain and her colonies in America] in regard to the mother country." (Mr. Adams to Lord Russell, Sept. 18, 1865, Dip. Cor. 1865, I. 554, 557.) Note of Mr. Monroe, "In reply to your third demand-the exclusion of the flag of the revolting provinces-I have to observe that, in conseJanuary 19, 1816. quence of the unsettled state of many countries, and repeated changes of the ruling authority in each, there being at the same time several competitors, and each party bearing its appropriate flag, the President thought it proper, some time past, to give orders to the collectors not to make the flag of any vessel a criterion or condition of its admission into the ports of the United States. Having taken no part in the differences and convulsions which have disturbed those countries, it is consistent with the just principles, as it is with the interests, of the United States to receive the vessels of all countries into their ports, to whatever party belonging, and under whatever flag sailing, pirates excepted, requiring of them only the payment of the duties, and obedience to the laws while under their jurisdiction, without adverting to the question whether they had committed any violation of the allegiance or laws obligatory on them in the countries to which they belonged, either in assuming such flag, or in any other respect." Mr. Monroe, Sec. of State, to the Chev. de Onis, Spanish minister, Jan. 19, 1816, Am. State Papers, For. Rel., IV. 424, 426. Message, December 26, 1816. "It is found that existing laws have not the efficacy necessary to prevent violations of the obligations of the United President Madison's States as a nation at peace toward bellgierent parties and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States. With a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may be requisite.”. President Madison, special message, Dec. 26, 1816. January 10, 1817. "1. That vessels belonging to citizens of the United Mr. Monroe's Letter, States, or foreigners, have been armed and equipped in our ports, and have cleared out from our customhouses, as merchant vessels; and, after touching at other ports, have hoisted the flag of some of the belligerents, and cruised under it against the commerce of nations in amity with the United States. "2. That, in other instances, other vessels, armed and equipped in our ports, have hoisted such flags after clearing out and getting to sea. * * * "3. That, in other instances, foreign vessels have taken on board citizens of the United States, as passengers, who, on their arrival at neutral ports, have assumed the character of officers and soldiers in the service of some of the parties in the contest now prevailing in our southern hemisphere. Mr. Monroe, Sec. of State, to Mr. Forsyth, chm. Foreign Relations Committee, "It was anticipated at an early stage that the contest between Spain and the colonies would become highly interesting to * Through every stage President Monroe's the United States. Message, December 2, 1817. * * of the conflict the United States has maintained an impartial neutrality, giving aid to neither of the parties in men, money, ships, or munitions of war. They have regarded the contest not in the light of an ordinary insurrection or rebellion, but as a civil war between parties nearly equal, having as to neutral powers equal rights. Our ports have been open to both." * * * President Monroe, first annual message, Dec. 2, 1817. In his annual message, Dec. 7, 1819, President Monroe said: "In the civil war existing between Spain and the Spanish provinces in this hemisphere the greatest care has been taken to enforce the laws intended to preserve an impartial neutrality. Our ports have continued to be equally open to both parties and on the same conditions, and our citizens have been equally restrained from interfering in favor of either to the prejudice of the other." Message on Amelia 1818. * * * * * "In suppressing the establishment at Amelia Island no unfriendliness was manifested towards Spain, because the post was taken from a force which had wrested it from her. Island, Nov. 17, The measure, it is true, was not adopted in concert with * because the Spanish Government, it was thought proper, in doing justice to the United States, to maintain a strict impartiality towards both belligerent parties, without consulting or acting in concert with either. It gives me pleasure to state that the Governments of Buenos Ayres and Venezuela, whose names were assumed, have explicitly disclaimed all participation in those measures, and even the knowledge of them. * * * “The civil war which has so long prevailed between Spain and the provinces in South America still continues, without any prospect of its speedy termination." President Monroe, message of Nov. 17, 1818. The foregoing extract, with other passages from the same message, is quoted by Wheaton in the 4th volume of his reports, Appendix 23, under the head of "different public acts by which the Government of the United States has recognized the existence of a civil war between Spain and her American colonies." The learned reporter seems to have overlooked the message of Dec. 2, 1817, which is stronger and more explicit in its terms. Action of the Courts. "When a civil war rages in a foreign nation, one part of which separates itself from the old-established government and erects itself into a distinct government, the courts of the Union must view such newly constituted government as it is viewed by the legislative and executive departments of the Government of the United States. If the Government of the Union remains neutral, but recognizes the existence of a civil war, the courts of the Union can not consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy." United States v. Palmer (1818), 3 Wheaton, 610, 643. Cited by Wirt, Attorney-General, Nov. 6, 1818, 1 Op. 249. See, also, Rose v. Himely, 4 Cranch, 242; Gelston v. Hoyt, 3 Wheat. 247. "The decision at the last term, in the case of the United States v. Palmer, establishes the principle that the Government of the United States, having recognized the existence of a civil war betwen Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes, and which the new governments in South America may direct against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of Congress, and treaties with foreign powers, are violated by the cruisers sailing under commissions from those governments, captures made by them are to be regarded by us as other captures, jure belli, are regarded." The Divina Pastora (1819), 4 Wheat. 52, 63. See Nueva Anna, 6 Wheat. 193; La Santissima Trinidad, 7 Wheat. 337. Message, March 8, 1822. "As soon as the [revolutionary] movement assumed such a steady and consistent form as to make the success of the provPresident Monroe's inces probable, the rights to which they were entitled by the law of nations, as equal parties to a civil war, were extended to them. Each party was permitted to enter our ports with its public and private ships, and to take from them every article which was the subject of commerce with other nations. Our citizens also have carried on commerce with both parties, and the Government has protected it with each in articles not contraband of war. Through the whole of this contest the United States have remained neutral, and have fulfilled with the utmost impar tiality all the obligations incident to that character." President Monroe, special message, March 8, 1822, recommending the adop tion of measures with a view to the recognition of the independence of the Spanish provinces in America. (Am. State Papers, For. Rel. IV. 818.) President Woolsey criticises the first sentence in this passage, as follows: "This rule breaks down in several places. The probability is a creature of the mind, something merely subjective, and ought not to enter into a definition of what a nation ought to do. Again, the success does not depend on steadiness and consistency of form only, but on relative strength of the parties. If you make probability of success the criterion of right in the case, you have to weigh other circumstances before being able to judge which is most probable, success or defeat. Would you, if you conceded belligerent rights, withdraw the concession whenever success ceased to be probable? And, still further, such provinces in revolt are not entitled by the law of nations to rights as equal parties to a civil war. They have properly no rights, and the concession of belligerency is not made on their account, but on account of considerations of policy on the part of the state itself which declares them such, or on grounds of humanity." (Int. Law, App. III., note 19.) In the case of the Three Friends (166 U. S. 63), government counsel specially examined the course of the United States with reference to the recognition of the belligerency of Latin-American insurgents during the first quarter of the nineteenth century. In the brief for the government the various contesting bodies in 1817 were classified as (1) the "leading Spanish-American colonies, whose position as belligerents was in doubt;" (2) "certain Spanish or Portuguese districts whose belligerency had not then been and never was recognized;" (3) Hayti; (4) Amelia Island and Galveston. The administration of President Madison came to an end March 4, 1817; and whether the belligerency of the South American revolutionists was recognized by that Administration depended, said government counsel, on the formalities essential to such recognition. Judge Benedict had taken the ground that a public proclamation by the Executive, or some public act by necessary implication equivalent to such a proclamation, was essential. (The Conserva, 38 Fed. Rep. 431, 437.) Mr. Clay had impliedly maintained the same view. (Annals of Congress, March 18, 1818, p. 1415.) President Monroe, in his message of Dec. 2, 1817, took the contrary view. As "Spanish or Portuguese districts," whose belligerency was not recognized, were specified Paraguay (Am. State Papers, For. Rel. IV. 219, 222, 225, 250, 265, 278, 339) and the Oriental Republic of Artigas. (Am. State Papers, For. Rel. IV. 173–4, 218, 219, 221, 225, 250, 268, 274, 288, 289; H. Ex. Doc. 53, 32 Cong. 1 sess. 193-200; The Gran Para, 7 Wheat. 471, 509; Wirt, At.-Gen., 1 Op. 249.) Nor was the belligerency of the Haytian chieftains recognized. (Wirt, At.-Gen., 1 Op. 249; Annals of Congress, March 18, 1818, p. 1245.) The partisans or freebooters at Amelia Island and Galveston were treated as pirates, though their principal leader, Aury, claimed the right to fly the Venezuelan, Artigan, and other revolutionary flags. (Wharton, Int. Law Dig. § 50 a.) "The states," said government counsel, “whose belligerency was recognized by Monroe in 1817 were doubtless those whose independence was recognized in 1822, namely, New Granada and Venezuela * * Buenos Ayres, * * * * and Chili-the successful revolts of Peru and Mexico having been later than 1817. That the recognition of belligerency did not apply to all the minor insurgencies has been expressly ruled by this court in The Nueva Anna and Liebre, 6 Wheat. 193." Hospitality to 4. REVOLUTION IN TEXAS. § 62. "It has never been held necessary, as a preliminary to the extension of the rights of hospitality to either [of the parties to a civil contest], that the chances of the war should be balanced and the probability of eventual success determined. For this purpose it has been deemed sufficient that the party had declared its independence and at the time was actually maintaining it. Such having been the course hitherto pursued by this Government, however important it might be to consider the probability of success, if a question should arise as to the recognition of the independence of Teras, it is not to be expected that it should be made a prerequisite to the mere exercise of hospitality implied by the admission of the vessels of that country into our ports. The declaration of neutrality by the President in regard to the existing contest between Mexico and Texas was not intended to be confined to the limits of that province or of the theater of war,' within which it was hardly to be presumed that any collision would occur or any question on the subject arise, but it was designed to extend everywhere and to include as well the United States and their ports as the territories of the conflicting parties. The exclusion of the vessels of Texas, while those of Mexico are admitted, is not deemed compatible with the strict neutrality which it is the desire and the determination of this Government to observe in respect to the present contest between those countries; nor is it thought necessary to scrutinize the character or authority of the flag under which they may sail, or the validity of the commission under which they may be commanded, when the rights of this country and its citizens are respected and observed. In this frank expression of the views and policy of the United States in regard to a matter of so much interest as the war now waging between Mexico and its revolted province, it is hoped that new evidence will be perceived, not only of the consistency and impartiality of this Government in its relations with foreign countries, but of the sincere desire which is entertained, by such an exposition of its course, to cherish and perpetuate that friendly feeling, which will see in the scrupulous regard that is paid to the rights of other, and even of rival, parties, one of the surest guarantees that its own will continue to be respected.” Mr. Forsyth, Sec. of State, to Mr. Gorostiza, Mexican minister, Sept. 20, 1836, The note of Mr. Forsyth was written in reply to a complaint of Mr. Gorostiza |