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"to bear always in mind that it was not only the policy of our Government, but their earnest desire, to maintain a strict and unqualified neutrality in all things relating to the belligerents and to those countries generally." When Captain Voorhees arrived off Montevideo, the port was blockaded by a squadron of the Argentine Confederation, against which Montevideo had declared war, and was besieged by land by General Oribe, who claimed to be the legal President of the Oriental Republic of Uruguay, and who was endeavoring, with the aid of the Government at Buenos Ayres, to recover Montevideo, whence he had been driven some months previously by a revolution. General Oribe held possession of nearly all the Oriental Republic except Montevideo, and displayed in his camp the Montevidean flag, which was also that of the Republic, and the flag of the Argentine Confederation, as that of his ally. The Montevideans, reinforced by large numbers of French, Italians, and other foreigners, held out against the siege and the blockade, and claimed to be the Government of the Republic. The United States had for years maintained a chargé d'affaires near the Government of the Argentine Confederation, and had received from it in 1838, as minister plenipotentiary and extraordinary, General Alvear, who still resided at Washington in that capacity. Diplomatic relations with Uruguay had never been established, but the United States maintained at Montevideo a consul, who was accredited to the Oriental Republic. The Government of the United States had taken no action upon the war between the Argentine Confederation and Montevideo, or upon the civil contest in Uruguay. The foreign naval forces in the River Plate conceded, however, the claims of the various parties to belligerent rights.

On the morning of Sunday, September 29, 1844, the armed schooner Sancala, which had been fitted out by General Oribe to cruise against the Montevidean fishermen who supplied the besieged with fish, came out of the port of Buseo, under the Montevidean flag, and chased an enemy fishing boat. The boat sought refuge alongside the American bark Rosalba, which had, unknown to the Congress, come out of Montevideo on the preceding night, and which was then lying, unrecognized and without any colors hoisted, near the frigate. The Sancala fired a volley of musketry at the boat and some of the balls struck the Rosalba, which then displayed her American colors. The Sancala drew off and anchored under the stern of the flagship of the Argentine squadron, and, after communicating with the commander, continued to cruise after fishing boats. Several hours later, Captain Voorhees, having been advised of the incident, sent out boats from the Congress and captured the Sancala. Her officers and crew were sent on board the Congress as prisoners, and the Sancala herself, under United States colors and with a crew from the Congress, chased and captured a schooner of the Argentine squadron, called the Ninth of July, and put a prize crew on board of her. The Congress then bore down on the

Argentine squadron, which was lying at anchor, compelled it to strike, caused all the officers to be sent on board, released all the Montevidean prisoners on the Argentine vessels, as well as some fishing boats held as prizes, and took from one of the vessels some seamen, who represented that they were citizens of the United States and that their terms of enlistment had expired. Subsequently the officers were returned to their vessels, and the Argentine commander renewed a protest which he had previously made against what had been done. On the 3rd of October he notified Captain Voorhees of the reestablishment of the blockade. Captain Voorhees acknowledged the receipt of this notice on the 5th of the same month, but on the 22nd informed the Argentine commander that he would no longer permit American vessels to be visited. The blockade was therefore suspended as to such vessels till the 3rd of November, when Commodore Turner, who had arrived off Montevideo on the 29th of October, directed that the belligerent rights of the Argentine Government be respected. On the 21st of November he also ordered the release of the Sancala, her officers and crew.

In the specifications by which the charge of disobedience was supported, the Secretary of the Navy alleged that Captain Voorhees had violated the orders of Commodore Turner of March, 1844, by the following specific acts:

1. By "wrongfully capturing and taking forcible possession of an armed vessel called the 'Sancala,' belonging to a Government at peace with the Government of the United States and at war with the Government of Montevideo."

2. By "wrongfully capturing and taking forcible possession of a squadron of armed vessels belonging to a Government at peace with the Government of the United States and at war with the Government of Montevideo."

3. By "forcibly and wrongfully releasing prisoners and other property captured by, or in custody of, a squadron of vessels employed in blockading the port of Montevideo, the said squadron belonging to a Government at peace with the Government of the United States."

4. By "wrongfully and forcibly taking seamen from a squadron of vessels blockading the port of Montevideo, the said squadron belonging to a Government at peace with the Government of the United States."

5. By "refusing to permit a squadron of vessels employed in blockading Montevideo to enforce the blockade with respect to merchant vessels belonging to the United States, the said squadron belonging to a Government at peace with the Government of the United States."

The judge-advocate, in his opening statement, discussed the questions whether the Sancala was sailing under a false flag, with no authority to exercise belligerent rights, and whether her attack on the Rosalba was a piratical act, which outlawed her. He maintained the

negative of both questions." He referred to the case of Capt. Daniel Turner, who, April 7, 1830, cut out the Buenos Ayrean privateer from a neutral harbor in St. Bartholomew, on representations of her having plundered an American vessel and the refusal of the neutral power to give her up; and to the case of Commodore David Porter, who, June 3, 1825, attacked a town in Porto Rico, landing and compelling the submission of the local authorities for having imprisoned Lieutenant Platt, whom he had, while in search of pirates, dispatched thither in search of supposed stolen goods. In both these cases, said the judgeadvocate, "the invasion of national rights met with condemnation and rebuke from the Government of the United States."

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Captain Voorhees, in his defense, stated that in capturing the Sancala he acted upon a communication brought to him by a midshipman, from the owner of the Rosalba, to the effect that a Buenos Ayrean schooner, sailing under Montevidean colors, had pursued and captured several Montevidean fishermen and had fired a volley of musketry into the bark. This, as reported, he considered an act of piracy, in which the commander of the Argentine squadron had, by approving and adopting it, made himself an accomplice. He also relied much on the case of the Marianna Flora. He referred to the Sancala as a "daring marauder," and cited Klintock's case to show that Oribe, not having been recognized as a belligerent by the United States, was not entitled to belligerent rights. He also said: "I received the highest testimonials of the approbation of my proceedings from the highest commanding officers in the English, French, and Brazilian squadrons. High commendation was bestowed upon me by the agent of my Government at Montevideo and by the American minister at Rio de Janeiro, and finally it was in the fullest and most distinct manner sanctioned and approved by my commanding officer, Commodore Turner, whose orders I am now charged with violating."

d

The court-martial found the accused guilty on each of the five specifications, and sentenced him to be reprimanded in a general order by the Secretary of the Navy and to be suspended for three years. The verdict was approved and the sentence confirmed. The Secretary of the Navy, in carrying the sentence into effect, said: "I could desire not to add one word to the judgment of the court. But justice to our own Government, the relations of amity subsisting with the Argentine Republic, our avowed policy of neutrality between foreign belligerents, respect for the rights of a foreign flag, a firm adhesion to the humane principles of the modern code of maritime law, ever

* * *

a The judge-advocate cited various writers on international law, and the case of the Invincible, opinion of Attorney-General Butler, May 17, 1836, 3 Op. 120.

b11 Wheaton, 1.

e United States v. Klintock, 5 Wheaton, 144.

d MSS. Navy Department.

advocated and insisted upon by the American people, the determination to demand nothing but what is right, especially from a weaker power than our own, compel me to disavow and reprove your conduct as set forth in the charge and specifications of which you have been found guilty." A transcript of this letter and of the finding and sentence of the court-martial were communicated to the Argentine minister, with an expression of the hope that his Government would see in it a satisfactory proof of the disposition of the United States "to respect the rights of Buenos Ayres."

Rights and Duties of their Citizens.

6. PERU-THE VIVANCO INSURRECTION.

§ 64.

*

* *

"I shall not undertake to settle any general principle by which the true character of an insurrectionary movement in a Nonaction of Foreign country may be tested, and under what circumstances Governments; it becomes a contest for a change of government, giving to it the attributes, together with the first consequences, of a civil war. It is sufficient to say that the situation of the contending parties in Peru, and the avowed objects of the revolutionary leaders, together with the extent of their operations, and also the extent and importance of the portion of the Republic which they occupied and governed at different periods of the struggle, made that contest a civil war. You consider some act of a foreign government recognizing the existence of such a war to be necessary before its citizens can claim the protection which the United States demand for their own. * * * Cases have been put, and may be put again, which, in the opinion of high authorities, require such a measure before they carry with them the consequences attached to the condition of civil war. Such cases may relate to the declaration of a blockade, to a claim to search vessels as neutrals, and to the exercise of other belligerent powers assumed by the hostile rulers. By what public act, whether proclamation or otherwise, this recognition must take place I have not found laid down. I am not aware that in this country any solemn proceeding, either legislative or executive, has been adopted for the purpose of declaring the status of an insurrectionary movement abroad, and whether it is entitled to the attributes of civil war, unless, indeed, in the formal recognition of a portion of an empire seeking to establish its independence, which, in fact, does not so much admit its existence as it announces its result, at

@ Mr. Bancroft, Sec. of the Navy, to Capt. Voorhees, Aug. 12, 1845, MSS. Navy Dept.

Mr. Buchanan, Sec. of State, to Gen. Alvear, Oct. 25, 1845, MS. Notes to Argentine Confederation, VI. 17.

During the Vivanco insurrection. See Moore, Int. Arbitrations, II. 1593 et seq.

least so far as regards the nation thus proclaiming its decision. But that is the case of the admission of a new member into the family of nations. Such is not the condition of Peru. She had already attained that position, and her intestine difficulties arose out of an effort to change the administration of the government, which was a matter of purely domestic concern, not touching foreign powers, unless in the progress of the contest their interests were brought into question. So long, therefore, as such a contest preserves its domestic character there is no necessity for external interposition unless, indeed, there be a determination to take part with and aid one of the parties by the direct application of force or by the exertion of political influence. Such has not been the policy of the United States, and they carefully abstained from all interference with the troubles in Peru, content to abide the decision which its people might make; and this Government permitted the diplomatic intercourse of the two countries to continue unchanged, as a measure demanded by their mutual interests and not as an acknowledgment of the pretensions of either of the rival parties. It is, therefore, unnecessary to advert to the effect of a formal recognition by the Executive, and how far that act of political power would be obligatory upon the courts of justice and binding upon the rights of individuals. Whether a civil war was prevailing in Peru is a question of fact, to be judged by the proofs, as the existence of a war between two independent nations is a similar question, to be determined in the same manner, whereas, as is often the case, at least in this country, there is no public authoritative recognition of it.”

Mr. Cass, Sec. of State, to Mr. Osma, Peruvian minister, May 22, 1858, S. Ex.
Doc. 69, 35 Cong. 1 sess. 17, 20, 24-25.

See opinion of Attorney-General Black, 1858, 9 Op. 140.

"Mr. Osma insists, however, that a civil war in one country can not be known to the people of another but through their own government; that the existence or nonexistence of civil war is a question not of fact, but of law, which no private person has a right to decide for himself; that foreigners must regard the former state of things as still existing, unless their respective governments have recognized the change. But I am very clearly of the opinion that an American citizen who goes to southern Peru may safely act upon the evidence of his own senses. If he sees that the former government has been expelled or overturned by a civil revolution, and a new one set up and maintained in its place, he can not be molested or even blamed for regulating his behavior by the laws thus established. Nay, he has no choice; the government de facto will compel his obedience. It will not give him leave to ignore the matter of fact while he waits for the solution of a legal problem at home. Besides, if he resists the authority of the party in possession on the ground that another has the right.

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