A DIGEST

THE INTERNATIONAL LAW

UNITED STATES,

TAKEN FROM

DOCUMENTS ISSUED BY PRESIDENTS
AND SECRETARIES OF. STATE,

AND FROM

DECISIONS OF FEDERAL COURTS and OPINIONS OF ATTORNEYS-GENERAL

EDITED BY

FRANCIS WHARTON, LL. D.,

AUTHOR OF A TREATISE ON CONFLICT OF LAWS, AND OF COMMENTARIES
ON AMERICAN LAW.

IN THREE VOLUMES.

VOLUME I.

WASHINGTON.

GOVERNMENT PRINTING OFFICE.

1886.

^ PRELIMINARY REMARKS.

The following is the preface to a pamphlet submitted by me, in March
last, to Congress:

"In Mr. Fillmore's second annual message, in a passage understood
to have been furnished by Mr. Webster, then Secretary of State, we
are told that ' one of the most eminent of British statesmen said in
Parliament, while a minister of the Crown, " that if he wished for a guide
in a system of neutrality, he should take that laid down by America in
the days of Washington and the secretaryship of Jefferson"; and we
see, in fact, that the act of Congress of 1818 was followed the succeed-
ing year by an act of the Parliament of England substantially the same
in its general provisions.'

"Of the same period, Mr. Hall, in the second edition of his work on
International Law (2d ed., 1884, § 213), thus speaks: 'The United States
had the merit of fixing it (the doctrine of neutrality) permanently. On
the outbreak of war in Europe in 1793 a newly-appointed French min-
ister, Mr. Genet, on lauding at Charleston, granted commissions to
American citizens who fitted out privateers, and manned them with
Americans, to cruise against English commerce. Immediate complaint
was made by the English minister, who expressed his " persuasion that
the Government of the United States would regard the act of fitting
out those privateers in its ports as an insult offered to its sovereignty."
The view taken by the American Government was in fact broader, and
Mr. Jefferson expressed it clearly and tersely in writing to Mr. Genet.
* * * Taking this language straightforwardly, without forcing into
it all the meaning which a few phrases may bear, but keeping in mind
the facts which were before the eyes of Mr. Jefferson when he penned
it, there can be no doubt that the duties which it acknowledges are the
natural if not inevitable deductions from the general principles stated
by Bynkershoek, Vattel, and De Martens ; and there can be as little
doubt that they had not before been frankly fulfilled. * * * The policy
of the United States in 1793 constitutes an epoch in the development
of the usages of neutrality. There can be no doubt that it was intended
and believed to give effect to the obligations then incumbent upon
neutrals. But it represented by far the most advanced existing opinions
€L8 to what those obligations were; and in some points it even went further
than authoritative international custom has up to the present time advanced.
In the main, however, it is identical with the standard of conduct which is
now adopted by the community of nations.''

"'The United States of America,' says Sir Robert Phillimore (1 Int.
Law, 3d ed., 1879, p. 555), 'began their career as an independent
country under wise and great auspices, and it was the firm determina-
tion of those who guided their nascent energy to fulfill the obligations
of international law as recognized and established in the Ohxistian

PRELIMINARY REMARKS

Commonwealth of which they had become a member. They were sorely^
tried at the breaking out of the war of the first French Revolution, for
they had been much indebted to France during their coullict with their
mother country, and were much embarrassed by certain chiuses relat-
ing to privateers in their treaty with France of 1778; but in 1793, under
the Presidency of Washington, they put forth a proclamation of neu-
trality, and, resisting both the threats and the blandishments of their
recent ally, took their stand upon sound principles of international law^
and passed their first neutrality statute of 1794. The same spirit in-
duced the Government of these States at that important crisis when
the Spanish colonies in America threw off their allegiance to the mother
country, to pass the amended foreign enlistment statute of 1818; in
accordance with tchich, during the next year, the British statute, after a
severe striiggle, and mainly by the great ]}owers of Mr. Canning, was car-
ried through Farli anient.''

"Sir Robert Phillimore, in the passage last quoted, assigns to the
Government of the United States the credit of establishing liberal and
humane principles of international law at two great epochs : — that of
the first French revolutionary war during the administration of Wash-
ington and the secretaryship of Jefferson, and that of the reconstitutiott
of the relations of the great powers of the civilized world consequent
upon the overthrow of the Spanish supremacy in South America, and
the triumph which was then secured to liberal principles by the joint
action of England and of the United States in their resistance to the
projects of the Holy Alliance. As leader in the first of these epochs of
American statesmanship Mr. Jefferson is entitled to the pre-eminence,
though there is no question that he was greatly aided in coming to his
conclusions by the calm wisdom of Washington. Mr. Monroe was Presi-
dent during the second of these epochs; and the private letters to and
by him deposited in the Department of State show that he was aided
in reaching the positions which were announced by his administration
in this relation, not merely by his cabinet, including Mr. J. Q. Adams,
Mr. Calhoun, Mr. Wirt, and Mr. Crawford, but by Mr. Jefferson and
Mr. Madison, whom he freely and constantly consulted as to each step
in the important action which he then took in the domain of inter-
national law.

" But it is not in these two epochs alone that the statesmen of the
United States showed commanding ability in this important depart-
ment both of statesmanship and of jurisprudence. I do not desire
to refer to Secretaries of State who are now living, or who, if recently
dead, are still associated with immediate political affairs. But when
among those who filled the secretaryship in prior days we look back
on Madison, on Monroe, on John Quincy Adams, on Clay, on Van
Buren, on Edward Livingston, on Forsyth, on Clayton, on Webster, on
Calhoun, on Edward Everett, on Marcy, on Buchanan, on Cass, and on
Seward, it is impossible not to see that the continuous exposition of in-
ternational law, so far as concerns this country, fell into the hands of
men who were among the first statesmen and jurists of their age, sin-
gularly fitted to maintain in all relations, what was maintained in the
two relations just noticed, the leadership in the formation of a liberal
and humane system of international jurisprudence. And they have
ably done this work. I am not unfamiliar with the writings on inter-
national law of foreign statesmen and jurists; I have carefully studied not
merely the messages of our Presidents, but the volumes, now nearly four
hundred in number, in which are recorded (with the exceptions to be pres-

PRELIMINARY REMARKS.

ently noted) the opiDions of our Secretaries of State; and after a careful
comparison of those two classes of documents I have no hesitation in
saying not only that the leadership ascribed to our statesmen in the two
great epochs above noticed is maintained in other important relations^
but that the opinions of our Secretaries of State, coupled with those of
our Presidents as to which they were naturally consulted, form a body
of public law which will stand at least on a footing of equality with the
state ijapers of those of foreign statesmen and jurists with which it ha»
been my lot to be familiar.

"But where are to be found the documents which embody these utter-
ances of those charged with the direction of our foreign affairs? It is
a fact of great moment to us at present that these documents, in the
main, are inaccessible to the mass of those to whom their study is im-
portant, as well as to most of those who would desire to appeal to them
as guides. I append hereto a table of the standards to which I have
resorted in making up the following pages; and it will be seen that
three-fourths of them are still in manuscript, accessible only by special
permission of the Secretary of State. It is true that the earlier pa-
pers of the Department were published, though somewhat imperfectly,
in two distinct series of what are called 'State Papers'; and it is true
also, that from time to time documents from the Department were
printed by order of Congress; that from 1861 to 1868, the Department
issued compilations of its correspondence on foreign afitairs; and that
in 1870, the publication of such correspondence was finally established
as a matter of course.

"But, in respect to these several sources of authority, the following re-
marks may be made:

"(1) In the manuscript records many important papers are omitted.
A sudden call from Congress came, for instance, to which a reply was
furnished by the Secretary, and this reply was forwarded, as often hap-
pened, without being entered, as it should have been, in the ' Eeport
Book,' which is assigned for such papers. But by far the most com-
mon cause of omission is the occasional use, by both Presidents and
Secretaries, of informal letters, for the purpose of personal explanation
of their action and policy. Some of these letters will be found in the
published volumes of the works of Mr. Jeiferson, Mr. Madison, and Mr.
Webster. A far larger portion of them may be found in the unpub-
lished papers of Mr. Jefferson, Mr. Madison, and Mr. Monroe, now de-
posited in the Department of State. I have drawn, in my present work,
largely from both these sources, as well as from the manuscript records.

" (2) The printed documents, whether contained in reports to Congress
or in the ' State Papers,' or in the annual publications of the Depart-
ment, are necessarily defective. This arises not merely because many
important documents, or parts of documents, are kept back at the time,
from the fact that their publication might not be consistent with public
interest, but because expositions of general rules, which are of so great
interest in a work such as that in which I am now engaged, are not of
equal interest in publications whose object is to report the action of the
Government in concrete cases.

"(3) So far as concerns the publications to which I have referred, it
must be noticed that not only do they cover only limited sections of time
in our political history ; not only are they necessarily imperfect in their
exposition of the action of the Department even in the periods they
cover; not only do they suppress passages, which though of great future
interest in settling principles, it may be impolitic at the time to make

PRELIMINARY REMARKS.

public; not only from their voluminousness and lack of system is it a
work of much time and skill to find in them rulings pertinent to any
particular pending issue; but they are themselves in many important
cases unattainable. Tlie earlier pubbcations are out of print. Docu-
ments printed by Congress are, from time to time, destroyed in masses
by Congressional direction; and in fact, were this not done, the public
offices and vaults of Washington would be gorged with documents nine-
tenths of which have ceased to be called for and are without interest
to any but the antiquarian. But of the serious effects of this destruc-
tion, in respect to other documents of immense public interest, I beg to
give the following illustrations:

" Mr. Fillmore's second annual message contains an exposition of inter-
national law, as applied to our then foreign relations, which is understood
to have been furnished by Mr. Webster, and which is one of the most
masterly papers which has been produced on the topic with which we are
now concerned. Now, the only detached copy of this message to be
found in the library of the Department of State is cut out from one of the
newspapers of the day; nor is any copy now obtainable from the Con-
gressional records, or, sr far as I can learn, from any private publishing
house.

"Mr. Everett, during the short period in which he filled the secre-
taryship (the period intervening between the death of Mr. Webster and
the accession of Mr. Marcy as Secretary in the administration of Mr.
Pierce), prepared, aided by notes left by Mr. Webster, instructions on
the policy to be adopted towards Cuba by the United States, as affected
by the question immediately before him of a i^roposed joint agreement
with European powers of abstention from any future annexation of
Cuba. These instructions, signed and issued by Mr. Everett, were
afterwards, after grave consideration, adopted by Mr. Marcy. I must
here express my opinion that for wisdom and eloquence they are un-
excelled by any papers that have ever issued from the State Depart-
ment; and that they contain an exi^osition of our true policy as to ter-
ritorial accretion, which, for its statesmanlike power, its non-partisan
broadness of base, as well as for its attractiveness of style, ])eculiarly
fit it to be one of the standards to which political authorities of the
future should appeal. Yet of these instructions of Mr. Everett, occupying
as they did, when printed, a pamphlet of sixty-four pages, I have been
unable, though I have searched most diligently, to obtain a single copy.
The edition published iu Boston is exhausted, nor is it likely that it
would be reprinted by private enterprise.

" Another illustration may be found in Mr. Marcy's various expositions
of the Koszta case. One or two of these may still be obtained iu anti-
quarian stores. But that which I regard the ablest, in which he discusses
the law of domicil with almost unequaled sagacity and exactness, has
never tbund its way into print.

" We fall back, then, upon the manuscript copies of the Department of
State, and we are admonished, by the destruction of some of the earlier
volumes at the burning of Washington by the British, as well as by
the loss of public documents iu other Departments by what are called
accidental tires, that in respect to these standards we hang on a line by
no means insured from perishing.

" Whether these records should be reprinted as a whole is a question
of interest. If they were, they would cover four hundred volumes of
the ordinary law-book size. It would be difficult for one seeking in
haste to find rulings on some pending question of international law,

PRELIMINARY REMARKS.

to come to an accurate result from the study, iu the short time assi^ed
to him, of so vast a mass of authorities.

"I have endeavored to meet this want by the present digest. In
seeking for material I have turned every page of the volumes of records
in the Department to which I have referred ; and I have consulted in
connection with them the various publications to be found in the an-
nexed table. From these standards I have copied whatever, in the way
of principle, bears on international law; and the extracts I have thus
made I have arranged in the form of a digest, placing them chrono-
logically under their respective heads. Of the materials that apply, in
the way of principle, to the task before me, I believe I have omitted no
passages giving the deliberate opinions of Secretaries from the begin-
ning of the Government to the present day. I am conscious of no party
predilections in making these extracts; nor in fact is the topic one on
which party predilections could operate. We have been, throughout the
country, one in our principles of international law from the foundation
of our Government to the present day. If there was an alleged ex-
pansion of neutral duty in the late civil war, this was only apparent;
and I have to say that no more unqualified assertion of neutral rights
is to be found than that contained iu Mr. Seward's vindication of his
action iu the Trent affair. And if sometimes he threw out argumenta-
tively positions inconsistent with those which in other administrations
have been part of the settled policy of the Government, these were al-
ways afterwards modified by him so as to conform to such policy, and
had at least the good effect of bringing to the same common ground
the British Government of the day, receding in this respect from the
ground taken by its predecessors. A more serious departure from
this policy might be claimed to exist in the rulings of the Geneva con-
ference; but it must be remembered that the action of this conference
was not the action of the Department of State, which not long after
the publication of its adjudication disclaimed, as will hereafter be seen,
its binding authority. With the exception of these transient fluctuations
of opinion, not worked into the Department as part of its permanent
system of law, the action of the Department, no matter what may have
been the party character of the administration, has been one of consist-
ent logical progress. There is submission to, and yet not repetition
of, the old law laid down by our first administration, as a law which,
while distinctively American, has established a jurisprudence for the
civilized world. This law is one in its basis, yet, as is the case with all
true law whose continued existence depends on its responsiveness to
popular conscience and need, adapts itself, in its own instinctive evolu-
tion, to the contingencies of each social and political juncture that occurs.

"For the purposes of elucidation, I have concluded, in their appro-
priate heads iu this digest, the decisions of the courts of the United
States and of the Attorneys-General on the questions involved.

" I am indebted to John B. Moore, esq., of the Department of State, to
whose great aid in other respects I am glad to acknowledge my obliga-
tions, for a compilation of the rulings of commissions established by
the United States, in connection with other powers, for the settlement
of points in international dispute."

On July 28, 1886, the following resolution, adopted by Congress, was
aj)proved by the President:

Resolved by the Senate and House of Representatives of the United States
of America in Cangress assembled, That there be printed the usual number

VII

PRELIMINARY REMARKS.

of copies of "A Digest of the International Law of the United States,
taken troui the Opinions of Presidents and Secretaries of State, and of
Attorneys-General, and from the Decisions of Federal Courts, and of Joint
International Commissions in which the United States was a Party"; and
that there be printed in addition to said usual number, one thousand
copies for the use of the State Department, one thousand copies for the
use of the Senate, and two thousand copies for the use of the House of
Bepresentatives; said Digest to be printed under the editorial super-
vision of Francis Wharton, and the editing to be paid for at a price to
be fixed by the chairman of the Committee on Foreign Relations of the
Senate, and the chairman of the Committee on Foreign Affairs of the
House of Eepresentatives, acting with the Joint Committee on Printing,
not to exceed ten thousand dollars.

Immediately after the approval of this resolution 1 placed in the hands
of the Public Printer the digest it calls for, so far as concerns docu-
ments emanating from Presidents and Secretaries of State, and opinions
of Federals courts and Attorneys-General, with editorial comments on
the same.

The digest of the rulings of the international commissions, which
I mentioned in the preface above given as undertaken by the Hon. John
B. Moore, will occupy a separate volume. Of the importance of such a
digest I cannot speak too highly. I have also to repeat my acknowl-
edgement of Ml'. Moore's aid as stated above, and of the services ren-
dered by Mr. J. Wilson Bayard, of the Department of State, not merely
in the i)reparation of the work for the press, but in proof reading.

So far as concerns the present volumes, the following observations
are to be made :

The authorities on whom I have relied are: (1) Presidents' messages;
(2) opinions and reports of Secretaries of State; (3) opinions of Attor-
neys-General; (4) opinions of Federal courts; (5) paj^ers emanating from
the War, Navy, and Interior Departments ; (6) unofficial letters of our
leading statesmen, of which many of great importance are drawn from
the Jefferson, Madison, and Monroe papers on deposit in the Depart-
ment of State; (7) standard works on international law and history. As
to the latter, I have, as a rule, confined myself to quotations from authors
not readily accessible in this country. Were I to have quoted from Mr.
Wheaton, for instance, all passages pertinent to the topics I had before
me, I would have republished the greater part of his invaluable treatises.
This for various reasons could not be done. I have freely cited, how-
ever, the notes of Mr. Dana and Mr. Lawrence to Mr. Wheaton's work
on International Law, and 1 have made large use of Mr. J. C. Bancroft
Davis' comments on treaties published in the volume of treaties issued
by the Department of State. I have frequently, also, relied on Sir
Sherstou Baker's edition of General Halleck's International Law, as well
as on the work on international law published by President Woolsey.
vui

PRELIMINARY REMARKS.

The resolution under which I have acted directs that the work should
be printed under my "editorial supervision." This I have construed
as giving me such editorial control over the material in my hands as
would enable me to present it faithfully and effectively to the public eye.

So far as concerns the authoritative documents open to me, my method
of treatment has been simple. I have carefully searched all the records
of the Department in which are contained its diplomatic correspondence,
and the official reports of Secretaries, and I have copied therefrom all
passages relative to international law. When these passages were not
affirmations of prior rulings, I have entered them in full ; when they were
such affirmations, I have noted them as such, or I have given specifically
the points they decide. The same course I have taken in respect to
Presidents' messages relative to international law. Of the opinions of
the Attorneys-General aud of Federal courts I have generally given
only abstracts, considering these to be merely auxiliary to the main
object of the work.

In the pamphlet presented by me to Congress in March last, I gave
an analysis of the work as projected. This analysis being before the
committees of the Senate and House, to whom the matter was referred,
and being the basis of their reports recommending publication, has been
considered by me as so far approved as to make it my duty to retain it,
with such slight modifications as became subsequently requisite.

There will be little difficulty, I apprehend, in mastering the plan of the
work, when it is observed that iu each successive head of the analysis
the material is arranged as follows :

(1) Messages of Presidents and documents emanating from Secretaries
of State, in chronological order.

(2) Opinions of Federal courts, in chronological order.

(3) Opinions of Attorneys-General, in chronological order.

When, however, the topic is exclusively of a judicial character, I have
placed the opinions of the courts in the front rank.

In order to distinguish rulings of the three classes just mentioned, I
have given them in type of long primer leaded.

Unofficial opinions of leading statesmen, and opinions of text- writers,
I have placed in the same type, solid, inclosed in quotation marks. In
the latter type, not in quotation marks, are given my own editorial
comments.

Material of a secondary character, introduced by way of illustration,
is placed in brevier.

F. W.

November 20, 1886.

TABLE OF PRESIDENTS AND SECBETABIES OF STATE, WITH THE DATES
OF THE COMMENCEMENT OF THE TERMS OF EACH, FROM 1789 TO
1885.

PRESIDENTS.

Name.

George Washington..

John Adams

Thomas Jefferson

James Madison

James Moxroe

John Quincy Adams

Andrew Jackson

Martin Van Buren

William H. Harrison ..
John Tyler

James K. Polk

Z AOHARY Taylor

Millard Fillmore

Franklin Pierce

James Buchanan

Abraham Lincoln

Andrew Johnson

Ulysses S. Grant

Rutherford B. Hayes .

James A. Garfield

Chester A. Arthur

Grover Cleveland

Commence-
ment of term.

1789, Apr. 30

1797, Mar. 4

1801, Mar. 4

1809, Mar. 4

1817, Mar. 4

1825, Mar. 4

1829, Mar. 4

1837, Mar. 4
1841, Mar. 4
1841, Apr. 4

1845,

Mar.

lb 19,

Mar.

1850,

July

1853,

^liir.

1857,

Mar.

1861,

Mar.

1865,

Apr.

1869,

Mar.

1877,

Mar.

1881,

Mar.

1881,

Sept.

1885, Mar. 4

SECRETARIES OF STATE.

Name.

Thomas Jefferson

Edmund Randolph

Timothy Pickering

John Marshall

James Madison

Robert Smith

James Monroe

John Quincy Adams

Henry Clay

Martin Van Buren

Edward Livingston . . .

Louis McLane

John Forsyth

Daniel Webster

Hugh S. Legar^

Abel P. Upshur

John Nelson

John C. Calhoun

James Buchanan

John M. Clayton

Daniel Webster

Edward Everett

William L. Marcy

Lewis Cass

Jeremiah S. Black

William H. Seward

Elihu B. Washburne...

Hamilton Fish

William M. Evarts

James G. Blaine

Frederick T. Freling-

HUYSEN.

Thomas F. Bayard

Date of
appointment.

1789, Sept. 26

1794, Jan. 2

1795, Dec. 10

1800, May 13

1801, Mar. 5
1809, Mar.
1811, Apr.
1817, Mar.
1825, Mar.
1829, Mar.
1831, May 24

1833, May 29

1834, June 27

1841,

1843,
1843,
1844,
1844,
1845,
1849,
1850,
1852,
1853,
1857,
1860,
1861,

Mar. 5
May 24
July 24
Feb. 29
Mar. 6
Mar. 6
Mar. 7
July 22
Nov. 26
Mar. 7
Mar. 6
Dec. 17
Mar. 5

1869, Mar. 5

1869, Mar. 11

1877, Mar. 12

1881, Mar. 5

1881, Dec. 12

1885, Mar. 6

LIST OF AUTHORITIES REFERRED TO.

Abbott. On merchant ships and shipping. (11th ed.)

Abegg. Ueber die Bestrafung der im Auslande begangenen Verbrechen. 1819.
Abrbu Y Bektodano, F. J. DE. Tratado juridico-politico sobre pressas de mar y

calidades que deben concurrir para hacerse legit-
amameute el corso. Cadiz, 1746.
Adams, J. The works of, with the life of the author, by C. F. Adams. Boston, 1856.

Life, by John T. Morse, jr. Boston, 1885
Adams, J. Q. Memoirs, comprising portions of his diary from 1795 to 1848, edited by
by C. F. Adams. Philadelphia, 1874-'77.
The duplicate letters; the Fisheries and the Mississippi. Washington,
1822.
Ahrens. Conrs de droit uaturel. 1840.
Albany Law Journal. Articles on international law.
Aloorta. Tratado de derecho internacional. Buenos Ayres, 1878.
Alien claims against Government, law of. Washington, Grovernment Printing

Office, 1875.
Alison, A. History of Europe during the French Revolution. (8th ed.) 1853.
American Law Eeview. Articles on international law.
American State Papers. Foreign Relations, 1789-1828. 6 vols. Folio.

Miscellaneous.
(Wait's edition, see Wait.)
Amos, S. Lectures on international law. London, Stevens & Sons, 1874.

Political and legal remedies for war. New York, 1880.
Annals of Congress. 1854^.

Annuaire des Deux Mondes. Articles relative to international law.
Annuaire de l'Institut be droit international. Gand, 1877-'85.
Annual Register. The London, 1758.
Archivs Diplomatiques. Paris, 1861^.
Attorneys-General, Opinions of the. 16 vols., 1852-81.

Atlantic Magazine. Article by Mr. BoUes on Confederate Navy. (See Index.)
Austin. Province of jurisprudence determined. 1832.
AZUNI. Syst^me universel de xjriucipes du droit maritime de I'Europe ; traduit de

I'ltalien, par J. M. Digeon. 1790.
Bancroft, George. History of the United States, etc. Boston, 1866.

History of the Formation of the Constitution of the United
States. 1 vol. 1886.
Bar, L. von. Das Internationale Privat und Strafrecht. Hanover, 1862. *

(See also the same translated, with notes, by G. R. Gillespie. Edin-
burgh, 1883.)
Ueber die Internationale Anwendung des Strafgesetzes. 28 Gerichts-

saal.
Interpretations divergentes du trait6 d'extradition de 1842 entre I'An-
gleterre et les fitats-Unis. Revue de droit int., ix, 5.
Bemis, G. American neutrality. Boston, 1866.
Benton, T. H. Thirty years in the Senate. 2 vols. 1854-'56.

Debates in Congress from 1789 to 18.56. 15 vols. New York, 1857.

LIST OF AUTHORITIES REFERRED TO.

Bernard, M. Four lectures on subjects connected with diplomacy. London, 1868.
Notes on some questions suggested by the case of the Trent.
A historical account of the neutrality of Great Britain during the
American civil war. London, 1870.
Billot. Traits de I'extradition. Paris, 1874.
Blackwood's Magazine. Articles on international law.
Blaine, J. G. Twenty years of Congress, etc. 1884.

Bluntschli, J. C. Das moderue Volkerrecht der civilisirten Staaten als Rechtsbuch
dargestellt. Nordlingen, 1878.
Geschichte des allegemeinen Staatsrecht, etc. 1881.
Das Beuterecht im Kriege. 1878.
BONFILS. De la competence des tribunaus Francais h l'6gard des 6trangers.
BOUVIER. Law dictionary adapted to Constitution and laws of the United States.
Boyd, A. C. Edition of Wheaton's International law. London, 1878.
British and Foreign State Papers. Compiled by the librarian and keeper of the

papers, foreign office. Vols. 1 to 69,181^78.
London, 1841-'85.
Brocher, C. Etude sur la lettre de change dans ses rapports avec le droit interna-
tional priv(S. Revue de droit int., vi, 5, 196.
Etude sur les conflits de legislation en matifere de droit p^nal. Kevue

de droit int., vii, 22, 169.
Nouveau trait6 de droit international priv6. Paris, 1876.
Buchanan, James. Mr. Buchanan's administration on the eve of the rebellion. New
York, 1866.
Life of, by George T. Curtis. New York, 1883.
BULMERINCQ, A. Praxis, Theorie und Codification des Volkerrechts. Leipzig, 1874.
Butler, Rev. C. M. Reminiscences of Webster (pamphlet).
Bynkershoek, C. van. QuiBstionum juris publici. 1751. Translation by Dupon-

ceau. Philadelphia, 1810.
Calhoun, J. C. The works of, edited by R. K. Crall6. New York, 1854.
Disquisition on Government. Columbia, 1851.
Life of, by Dr. H. von Hoist. Boston, 1882.
Calvo, Ch. Droit international th^orique et pratique. (3d ed.) Paris, 1880.
Campbell, Lord. Autobiography of, (2d ed.) 1881.

Caratheodoky, E. Du droit international concernant les grands cours d'eau. Leip-
zig, 1861.
Chalmers. Collection of opinions, &c.

Chitty, Joseph. Treatise on Law of Nations. Boston, 1812.
Choate, Rufus. Memoirs of, by Joseph Neilson, 1884.
Clarke, E. A treatise on the law of extradition. (2d ed.) London, Stevens <&

Haynes, 1874.
Consular Regulations of the United States. 1881.

Reports. Published periodically by the Department of State.
Creasy, Sir Edward S. First platform of International Law. London, 1876.
Criminal Law Magazine. Articles on international criminal jurisdiction.
CrokiSr, J. W. Correspondence and Diaries of; edited by L. J. Jennings. 3 vols.

London, 1884.
CUKTIS, G. T. The Faith of Treaties. 1886.
Life of Buchanan. 1883.
Life of Webster. 1870.
CUSSY, F. de. Dictionnaire du Diplomate et du Consul. 1846.
Customs and Navigation Regulations of the United States. 1884.
Debates of Congress. (Benton's abridgment. See Benton.)
De Bow's Review. Articles on consuls.

XIV

LIST OF AUTHOEITIES EEFERRED TO.

Dahlgren, Kear-Admiral John A. Maritime International Law. Boston, 1877.
Daixas, G. M. a series of letters from London, written during the years 1856, 1857,

1858, 1^59, and 1860. Philadelphia, 1869.
Dai^a, R. H., jr. Elements of International Law, by H. Wheaton, edited, with notes,

by. Boston, 1866.
Davis, J. C. Bancroft. Notes on Treaties of the United States. 1873.

Les tribunaux de prises des fitats-Unis. Paris, 1878.
Deane, H. B. The Law of Blockade ; its History, Present Condition, and Probable

Future. An International Law Essay. London, 1870.
Dicey, A. O. A Treatise on the Law of Domicil in England. London, 1879.
» Diplomatic Correspondence of the United States, 1861-1868. Washington, 1863-

1869.
Drx, J. A. Memoirs of, by Morgan Dix. 2 vols. New York, 1883.
DUPONCEAU. P. S. Translation of Bynkershoek on International Law. 1810.
DUER, John. The Law of Marine Insurance, ifcc. 2 vols. New York, 1845.
Lectures on Jurisprudence of United States. New York, 1858.
Edinburgh Review. Articles on international law.
Ellenborough, Lord. Political Diary of. 2 vols. London, 1881.
Elliot, J. The American Diplomatic Code, embracing a collection of treaties, &c.,
between the United States and foreign powers from 1778 to 1834.
Washington, 1834.
Engelhard. Du regime conventionel des fleuves.

Esperson. La questione Anglo-Americane dell' Alabama, 4k,G. Firenze, 1869.
Fauchille. Blocus m.aritime. Paris, 1882.

Field, D. D. Draft outlines of an international eode (2d ed.). New York, 1876.
FiORE, P. Nouveau droit international public ; traduite de I'ltalien et annot6e par

Charles Antoine (2d ed.), 1885.
FOELIX. "^Le droit international priv6 (3d ed.), 1856.
FOLLEVILLE, D. DE. Traits de la naturalization. Paris, 1880.

FOOTE, John A. A concise treatise on private international jurisprudence based on
the decisions in the English courts. Loudon, Stevens and
Hayues, 1878.
Foreign Relations of the United States, 1870-1885. Washington, 1871-1886.
Forsyth. Cases and opinions, &c. Loudon, 1869. '

Foster, J. W. International awards and national honor. 1886.
Fox, C. J. Life of, by Lord J. Russell. Loudon, 1859.

Franklin, B. The Works of, with Notes and a Life of the Author, by J. Sparks. Bos-
ton, 1836-1840.
Gallatin, A. Life of, by Henry Adams. Philadelphia, 1879.
John Austin Stevens. Boston, 1884.
The Works of, edited by Henry Adams. Philadelphia, 1879.
Oerry, Elbridge. Life of, by J. T. Austin. Boston, 1828, 1829.
Gessner, L. Le droit des neutres sur mer. Berlin, 1876.

Kriegfiihrende und neutrale Miichte. Berlin, 1877.
Zur Reform des Kriegs-Seerechts. Berlin, 1B75.
Geyer. Ueber die neueste Gestaltung des Volkerrechts. 1866.
Greville's Memoirs and Diary. Ist series, 4th ed., 1875 ; 2d series. 1884.
Grotius. Le droit de la guerre et de la paix. Nouvelle ed., par Pradier-Fod6r6.

Paris, 1867. 3 vols.
OuizoT, F. P. G. An Embassy to the Court of St. James, in 1840. London, 1862.
Halifax Commission. Proceedings of.
Hall, W. E. International Law. Oxford, Clarendon Press, 1880.

Rights and duties of neutrals. London, 1874.
Hatj.eck. International law. A new edition, with notes and cases, by Sir Sherston
Baker. Kegan, Paul & Co. London, 1878.

LIST OF AUTHORITIES REFERRED TO.

Hamilton, Alexander, The Works of, edited by H. C. Lodge.

Letters of Pacificus [Hamilton] and Helvidius [MadisonJ
on the proclamation of neutrality of 1793. Washington.
1845.
Life of, by H. C. Lodge. Boston, 1882.
Hansard. Parliamentry Debates.
Hartaiann. Institutionen des praktischen Volkerrechts in Friedenszeiten (2d ed.)^.

1878.
Hautefeuille, L. B. Questions de droit maritime international. Paris, 1868.
Heffter, a. W. Droit international public de I'Europa. Berlin and Paris, 1866.

Das europaische Volkerrecht (7th ed.), 1881. >

Henry, M. P. Admiralty Jurisdiction and Procedure. Philadelphia, 1885.
HiUDRETH, Richard. History of the United States (2d ed.). New York, 1851, 1852.
HiSTORiCUS. Sir W. G. Vernon-Harcourt. Letters by, on some questions of inter-
national law ; reprinted from the Times, with considerable additions'
London and Cambridge, 1863.
Holland, T. E. The Elements of Jurisprudence. Oxford and London, 1880.

De I'application de la loi. Revu ede droit int., vol. xii, 1880, p. 565,
Holst, F. von. Verfassung und Democratie der Vereinigten Staaten, 2d vol., under
title of Verfassungs-geschicte der Vereinigten Staaten seit der Ad-
ministration Jacksons. Same, translated by J. J. Lalor, 2d vol.
Chicago, 1879.
HoLTZENDORFF, F. VON. Encyklopadie der Rechtswissenschaft. Leipzig, 1881.

Haudbuch des Volkerrechts, i Band. Berlin, 1885.
Hooker. Ecclesiastical Polity, &c.

HosACK, John. The Rights of British and Neutral Commerce. London, 1854.
Hunt's Merchant's Magazine. Articles on international law.
Jackson, Andrew. Life of, by James Parton. New York, 1860.

by WilUam G. Sumner. Boston, 1883.
Sir G. Diaries and Letters of. London, 1872.

Second series, under title of the " Bath Archives." London, 1873.
Jacobson. Seerecht des Kriegs und des Friedens. Altona, 1815.
Jahrbuch fiir Gesetzgeburg und Verwaltung, &c.
Jay, John. Life of, by William Jay. New York, 1833.
Jefferson, Thomas. Manual of Parliamentary Practice. New York, 1876.

The Writings of, edited by H. A. Washington. Washington,

1853-1854.
The Life of, by H. S. Randall. New York, 1858.
John T. Morse, jr. Boston, 1883.
Journal de droit int. prive, public par M. Ed. Clunet. Paris, 1874, ff.
Kaltenborn. Grundsatze des praktischen Europaischen Seerechts. Berlin, 1851.
ELent. Commentaries on American law, edited by O. W. Holmes, jr. (12th ed.). Bos-
ton, 1873.
Commentary on international law. Edited by J. T. Abdy (2d ed.). London,
1878.
Kluber, J. L. Droit des gens moderne de I'Europe. Paris, 1831.
Laurent, F. Droit civil international. Vol. I. Bruxelles and Paris, 1880.

^Etudes sur I'histoire de 1' humanity. 18 vols. 1850, ff.
Lawrence, William B. Visitation and search. 1858.

Elements of international law, by Henry Wheaton, edited

with notes, by. 1863.
Commentaire sur les 616ments du droit international de
Henry Wheaton. Leipzig, 1880.
Lesur, C. L. Annuaire histoirique nniversel. Paris, 1825-'41.
Lewis, Sir G. Cornwall. On foreign jurisdictions, &c. 1859.
William. Das deutsche Seerecht. Leipzig, 1877.

XVI

LIST OF AUTHOEITIES REFERRED TO.

I/EXTEATERKiTORiALiTifi et les tribunaux mixtes dans I'extrfime Orient. Tokohama^

Japan, 1875. Jour, de droit int. priv6, ii, 168, 249.
Libber, Francis. Instructions for government of armies of United States.
Life and letters of, by T. S. Perry. Boston, 1882.
Nationalism and internationalism. 1868.
Livingston, Edward. Life of, by Charles H. Hunt. New York, 1864.
London Commission of 1853. Proceedings of.
London Quarterly Review, Articles ou international law.
LORiMER, James. Institutes of the law of nations. Edinburgh, 1883.

Prol6gom^nes d'un syst^me raisonn^ du droit intemationaL
Revue de droit int., x (1878), 339.
Lyman, Theodore. Diplomacy of the United States (2d ed.). 1828.
Maclachian. Merchant shipping (3d ed.). 1882.
McLeod. Trial of, by Gould (pamphlet).

Madison, Dolly. Memoirs and letters of, edited by her grandniece. Boston, 1886.
Madison, James. Letters and other writings of. Philadelphia, 1865.

History of the life and times of, by William C. Rives. Boston^

1859-'68.
Life of, by Sidney H. Gay. Boston, 1884.
Maine, Sir Henry. Ancient law, «&c. London, 1874.
Malmesbury, Lord (first earl). Correspondence and diaries of. 1843.

(second earl). Memoirs of an ex-minister. London, 1884.
Mancini, P. S. Droit international public. Naples, 1871.
Manning, W. O. Commentaries ou law of nations (2d ed.), by Amos, 1875.
Marshall, J. Life of Washington.
Marsh ALT., S. A treatise on the law of marine insurance, &c., by W. Shee, London,

(5th ed.), 1865.
Martens (Baron Ch. de, et Cuesy). Recueil manuel et pratique de trait^s et antres
actes diplomatiques, «fec. (7 vols.) Leipzig, 1846.
Guide diplomatique (2 vols.). Leipzig, 1866.
Recueil des principaux trait6s, &g. (2d ed.)
Nouveau recueil de trait6s. Precis, «fcc.
Martens, F. Recueil des trait^s, &c., conclus par la Russie, &c. St. P^tersbourg,
1874.
Das Consular Wesen und die Consular jurisdiction im Orient. Berlin,
1874.
Martens, G. F. et Murhard, S. Recueil des principaux trait^s de palx, &c. (52

vols.) Gottingen, 1791, 1871.
Martens, G. F. de. Precis du droit des gens moderne de I'Europe. Paris, 1864.
Mass^, M. G. Le droit commercial dans ses rapports avec le droit des gens et le droit

civil. Paris, Guillaumin, 1874.
Meier. Uber den Abschluss von Staats-vertriigen, Leipzig, 1874.
Mill, J, S. On treaty obligations. 8 Fortnightly Rev., 715.
Monroe, J. Life by Daniel C. Gilman. Boston, 1883.
Moseley,' Joseph. What is contraband and what is not. London, 1861.
Moynier, 6. Droit des gens. ]Gtude sur la Convention de G^nfeve. 1870.
Negrin. Tratado elemental de derecho internacional maritime. Madrid, 1873.
Neumann. Grundriss des heutigen Europiiischen Volkerrechtes. 1877.
North American Review. Articles on international law.
Ortolan, T. Ragles iuternationales et diplomatiques de la mer. Paris, 1864.
Pacipico. Papers relative to claim of. Presented to House of Commons, August 7,

1851.
Pando. Elementos del derecho internacional. 1843.

xvn

LIST OF AUTHORITIES REFERRED TO.

Perels, F. Das intemationale offentliche Seerecht der Gegenwart. Berlin, 1882.
Phillimore, Sir R. Commentaries upon international law. Vols, i, ii, and lit (3d ed.),

1879-'85 ; vol. iv (2d ed.), 1874.
PlERANTONi. Gli arbitrati internazionali e il trattato di Washington. 1872.
Pickering, Timothy. Life of, by Octavius Pickering. Boston, 1867.
PiNKNEY, William. Life, Writings, and Speeches of, by H. Wheaton. Boston, 1826.
POMEROY, J. N. Lectures on International Law in Times of Peace, edited by Theo-
dore Salisbury Woolsey. Boston, 1886.
PUFEXDORF, S. De jure naturae. 1674.
QULNCY, JosiAH. Life of, by Edmund Quincy. 1868.

Memoir and speeches of. Boston, 1874-'75.
Renault, L. Introduction h, l'6tude du droit international. Paris, 1869.

De la propri6t6 litt^raire au point de vue international. 1878.
Des crimes politiques en matifere d'extradition.
Revue de droit international. Gand, 1866 ff.

Rockingham, Marquis of. Memoirs of, by Earl of Albemarle. London, 1852.
RoHLAND, Dr. Internationales Strafrecht. Leipzig, 1877.

RORER, DA"saD. American inter-State law. Chicago. Callaghan & Co., 1879.
Rush, E. Memoranda of a residence at the court of London. Philadelphia, 1833.
Rutherforth, T. Institutes of natural law. ("MAm. ed.) 1838.
Savigny, F. C. von. System des heutigen romischen Eechts. 1862.

A treatise on the conflict of laws, translated, with notes, by
William Guthrie. (2ded.) Edinburgh, 1880.
SCHMALZ. Das Europiiische Volkerrecht. Berlin, 1817.
Schouler, James. History of the United States. 3 vols. 1880-'82.
Schuyler, Eugene. American diplomacy. 1886.
SciDMORE, E. R. Alaska ; its southern coast and the Sitkan Archipelago. Boston,

1885.
Shelburne, Earl of. The life of, by Lord E. Fitzmaurice. London, 1875-'76.
Sheppard, E. T. Extra territoriality in Japan. Tokio, 1879.
Southern Quarterly Review. Articles on international law.
Sparks, J. The diplomatic correspondence of the American Revolution. Boston,

1829-'30.
Spear, Samuel S. A treatise on extradition (2d ed.), 1884. Albany. Weed, Par-
sons & Co.
State Papers. British and Foreign, compiled by E. Hertslet, 1814-'73. London.

64 vols.
Stork. Jurisdiktion in Kiistengewassern.
Story, Joseph. On the Constitution of the United Sta^tes.

On the conflict of laws.
Sumner, Charles. The works of. 13 vols. 1875-1880.

Torres Campos, M. Principios de derecho internacional privado. Madrid, 1883.
Treasury Regulations. 1884.
Treaty of Washington. Papers relating to the.
Trescot, W. H. The Diplomatic History of the Administrations of Washington and

Adams, 1789-1801. Boston, 1857.
Tucker, G. F. Monroe Doctrine. Boston, 1885.

Twiss, Sir T. The law of nations considered as indei)endent political communities.
On the lights and duties of nations in time of peace. Oxford, 1861.
Same in time of war (2d ed.). London, 1875.
Doctrine of Continuous Voyages, &c. 1877.
" Territorial Waters." Nautical Magazine. 1878.
Belligerent Rights on the High Seas. London, 1884.
On International Conventions for Maintenance of Sea Lights. 1885.

XVIII

LIST OF AUTHORITIES REFERRED TO.

Vattel. Lo droit des goiis, on priacipes dc la loi natnrelle appliqiids h la conduit
aux affaires des nations et des soiiverains. Nonvelle Edition, par M.
Pradier Fod^rd. Paris, 186:i.
Von Holst. Constitutional History of the United States, 1828-'46. Chicago,

1870-'79. (See Holst.)
Wait, T. B. State Papers and Public Documents of the United States {'Ml ed.).

Boston, 1819.
Walpole, Spencer. History of England from the conclusion of the great war in

1815. London, 1880.
War in South America, and Attempt to bring about a Peace. Washington, 1882.
Ward, R. Treatise on Relative Rights and Duties of Belligerents and Neutral Powers

in Maritime Affairs. Loudon, 1801.
Washington, G. The Writings of, edited by J. Sparks. New York, 1847-'48.

Life of, by Chief-Justice Marshall. Philadelphia, 180.5.
Webster, D. The Works of. Boston, 1851.

Life of, by George T. Curtis. 2 vols. 1870.
Weed, Thurlow. Life of. Edited by H. A. Weed. Boston, 1884.
Westlake, J. A Treatise on Private International Law, with Principal Reference to

its Practice in England. London, 1880.
Wharton, F. Commentaries on Law. Philadelphia, 1884.

The Conflict of Laws (2d ed.). Philadelphia, 1881.
Criminal Law (9th ed.). Philadelphia, 1885.
Criminal Pleading and Practice (8th ed.). Philadelphia, 1880.
The Law of Negligence (2d ed.). Philadelphia, 1878.
State Trials of the United States. Philadelphia, 1849.
Wheaton, Henry. Conmientaries, &c. See Dana, R. H. ; Lawrence, W. B.
Essay on right of search.
History of the Law of Nations in Enropo and America. New

York, 1845.
Histoire des progres du droit des gens, «fcc. (Ikied.). Leipzig,

1851:5.
Life, writings, and speeches of William Pinkney. Boston,
1826.
WiLDMAN, R. Plain directions to naval officers as to the law of search, capture, and

prize. London, 1854.
Winthrop, R. C Addresses and speeches. Boston, 1886.
WooLSEY, Theodore D. Introduction to the study of international law. New

York, 1879.
WCrm. Die Politik der Seemiichte. August, 1855.

Briefe iiber die Freiheit der Flussschiffahrt.
Zavala. Derecho internacional. Guadalajara, 1886.

XIX

ANALYSIS

CHAPTER I.

SOVEREIGNTY OVER LAND.

I. Territorial sovereign supreme, § 1.

II. Discovery the basis of title, ^ 2.

III. Conquered territory subject to temporary military control, $ 3.

IV. Conquered, annexed, ok divided territory retains its prior municipal

institutions, ^ 4.
V. Benefits and burdens pass to conquering or annexing sovereign, ^ 5.
VI. But such oou.vtry not affected by acts of prior sovereign after ces-
sion, ^ r> o.
VII. Colonies becoming independent retain their boundaries and other

RIGHTS, ^ 6

Vlir. Title of de facto government to obedience, § 7.

IX. Law of nations p.\ut of law of land, § 8.

X. Municipal laws not extra territorial, ^ 9.

XL. Distinctive rule as to taxes, ^S 10.

XII. Distinctions as to federal constitution, § 11.

XIII. Territory as a rule inviolable.

(1) Geueral principles, ^ lla.

(2) Recruiting in foreign State forbidden, § 12.

(3) Permission requisite for passage of foreign troops, § 13.

(4) And so of foreign seizure of persons or property, § 14.
(.'>) And so of foreign jurisdiction of crime, § 15.

(6) And so of foreign sending of paupers and criminals, ^ 16.

XIV. Exception as to necessity, ^ 17.

XV. Exception as to foreign sovereigns, foreign ministers, and foreign

troops, ji 17a.
XVI. Exception as to uncivilized lands, $ 176.

XVII. Duty of sovereign to restrain agencies likely to injure another

country.

(1) Predatory Indians, $ 18. ,

(2) Olher marauders, ^ 19.

(3) Diversion or obstruction of water, $ 20.

XVIII. When har.m is done by order op foreigv sovereign such sovereign is

the accountable party, § 21.
XIX. Territorial boundaries determined by political, not judicial action,
§ 22.

CHAPTER II.
sovereignty over water

I. High seas: sovereignty over, 5 26.
II. Territorial waters : privileges of, $ 27.
III. Bays, $ 28.

XXI

ANALYSIS.

IV. Stkaits, § 29.

V. EiVERs, ^ 30.

VI. Lakes and inland seas, »i :iL

VII. Marginal belt of sea, $ 32.

VIII. Ship nationalized by flag, ij 33.

IX. Crimes at sea subject to country of flag, $ 33a.

X. Ports open to all nations, ^ 34.

XI. Merchant vessels subject to police law of port, $ 35.

XII. Crimes on such vessels, how far subject to port laws, $ 35a.

XIII. Not so as to public ships, ^ 36.

XIV. Oppressive port exactions, ^ 37.

XV. Exemptions from stress of weather : vis major, or inadvertence, ^ 38.
XVI. Arming merchant vessels, § 39.
XVII. Neutralized waters, q 40.

CHAPTER III.

intervention with foreign sovereignties.

I. General rule is non-intervention, $ 45.
II. Exceptions.

(1) Relief aud protection of eitizeus abroad, § 46.

(2) Agencies to obtain information as to pending insurrection, § 47.

(3) Sympathy with liberal political struggles, ^ 47a.

(4) Hospitality to political refugees, 5 48.

(5) Mediation, $ 49.

(6) Necessity, as where marauders can be checked only by such intervention,

$ 50.
(a) Amelia Island, § 50a.
(h) Pensacola and Florida posts, $ 50&.

(d) Greytown, S bOd.

(e) Border raiders, § 50e.

(7) Explora'^ioDS in barbarous lands {e.g . the Congo), § 51.

(8) Intercession in extreme cases of political offenders, $ 52.

(9) International courts in semi-civilized or barbarous lands, $ 53.
(10) Good offices for missionaries abroad, § 54.

(H) Good offices for persecuted Jews, § 55.

(12) Non-prohibition of publications or subscriptions in aid of political action

abroad, § 56.

(13) Chavitable contributions abroad, 56a.

III. Intervention of European sovereigns in affairs of this continent dis-

approved—Monroe doctrine, $ 57.

IV. Special applications of doctrine.

(1) Mexico, § .58.

(2) Peru, $ 59.

(3) Cuba, $ 60.

(4) San Dom"ngo and Hayti, § 61.

(5) Danish West Indies, § 61a.

(6) Hawaii: (Sandwich Islands), $ 62.

(7) Samoa, Caroline, aud other Pacific Islands, $ 63.

(8) Corea, § 64.

(9) Falkland Islands, § 65.

(10) Liberia, $ 66.

(11) China, $ 67.

(12) Japan, $ 68.

(13) Turkey, Tripoli, aud Tunis, $ 68 a.

XXII

ANALYSIS.

V. Recognitiox of belligerkncy, ij G9.
VI. Recogxition of sovereignty, $ 70.
VII. Such recogxition determinable by executive, $ 71.
VIII. Accretion, not colonization, the policy of the United States,
j7v!.

(Questions relative to the Isthmus of Panama are cousideredin/ra, $287^.)
CHAPTER IV.

DIPLOMATIC AGENTS.

I. Executive the source of diplomatic authority, $ 78.
II. Foreign ministers to recognize the secretary of state as the

SOLE ORGAN OF THE EXECUTIVE, § 79.

III. Continuity of foreign relations not broken by party changes,

^ riO.

IV. Executive discretion determines the withdrawal or renewal

of missions and ministers, $ 81.

V. Non-acceptable minister may be refused, § 82.

VI. Not usual to ask as to acceptability in advance, § 82a.
VII. Conditions derogatory to the accrediting government cannot be

IMPOSED, ij 8.5.

VIII. Minister misconducting himself may be sent back, $ 84.
IX. Mode of presentation and taking leave, § 8').
X. Incumbent continues until arrival of successor, § 86.

XI. How FAR DOMESTIC CHANGE OF GOVERNMENT OPERATES TO RECALL,

^ 87.
XII. Diplomatic grades, ^ 88.

XIII. Citizens of country of reception not acceptable, § 88a.

XIV. Diplomatic correspondence confidential except by order of de-

partment, § 89.

(1) Confined to official business, '^ 89a.

(2) Usnally in writing, $ 89&.

XV. Diplomatic agents to act under instructions, $ 90.
XVI. Communications from foreigners only to be received through
diplomatic representatives, § 91.

XVII. Diplomatic agents protected from process.

(1) Who are so privileged, ^ 92.

(2) Illegality of i^roeess against, ji 9.3.

(3) Exemption from criminal prosecution, $ 93a.

(4) What attack on a minister is an international offence, $ 93b.

XVIII. And from personal indignity, $ 94.
XIX. And from taxes and imposts, ij 9i.

XX. Property protected, $ 96.

XXI. Free transit and communication with, secured, $ 97.

XXII. Privileged from testifying, § 98.

XX II I. Cannot become business agents, \\ 99.

XXIV. Nor represent foreign governments, ^ 100.
XXV. Should reside at capital, ^ 101.

XXVI. Joint action with other diplomatic agents uxadvisable, $ 102.
XXVII. Duties as to archives, § 103.
XXVIII. Right of protection and asylum, v^ 104.

XXIX. M VY EXTEND protection TO CITIZENS OP FRIENDLY COUNTRIES, V^ 105.

XXX. Avoidance of political interference enjoined, $ 106.

XXIII

ANALYSIS.

XXXI. Courtesy, fair.vkss, and sociai, conformity kxpected.

(1) Official intercourse, $ 107.

(2) Social iuterconrse, § 107a.

(3) Court dress, § 107b.

(4) Expenses, $ 107c.

XXXII. Contingent fund and secret service money. ^ 108.

XXXIII. Self -constituted missions illegal. \S lO'J.

XXXIV. Presents not allowed, § 110.

CHAPTER V.

CONSULS.

I. Eligibility of, $ 113.

II. Appointment and qualifying of, § 114.

III. Exequatur, § 115.

IV. Dismissal, $ 116.

V. Not ordinarily diplomatic agents, § 117.

VI. Vice-consuls and consular agents, $ 118.

VII. Not to take part in politics, $ lit).

VIII. Privilege as to process, § liJO.

IX. Other privileges, § t2l.

X. Right to give asylum and protection, vS 122.

XI. Business relations of, ^ 123.

XII. Port jurisdiction of seamen and shipping, ^ 124.

XIII. Judicial functions in semi-civilized lands, § 125.

CHAPTER VI.

treaties.
I. Negotiation, $ 130.
II. Ratification and approval.

(1) As to treaty making power, § 131.

(2) As to legislation, $ 131«.

III. When treaty goes into effect, ^ 132.

IV. Construction and interpretation, vS 133.

V. "Favored nation,'' ^ 134.

VI. Subsequent war : effect ok, ^ 135.
VII. Subsequent annexation: effect of, ^S 13(5.
Vllt. Subsequent revolution: effect of. v> 137.
IX. Abrogation by consent, by repudiation, or by change of circum-
stances, ^ 137a.
X. Treaties when constitutional are the supreme law of the land, but

MAY be municipally MODIFIED BY SUBSEQUENT LEGISLATION, § 138.

XI. Judiciary cannot control executive in treaty makikg, $ 139.
XII. Special treaties.

(1) Argentine Republic, ^ 140.

(2) Austria-Hungary, § 141.

(3) Barbary Powers, § 141a.

(4) Bavaria, § 142.

(5) Brazil, ^ 143.
(fi) China, ^ 144.

(7) Colombia and New Granada, § 145.

(8) Costa Rica and Houdiinis, § 146.

(9) Denmark, v^ 147.
(10) France.

(a) Treaty of 177H, $ 14H.

(b) Convention of 1800-1, $ 148rt.

(d) Subsequent treaties, ^ 148c.
XXIV

ANALYSIS.

XII. Special treatiks — Continned.

(11) Germ.auy, § 149.

(12) Great Britain.

(a) Treaty of 1783 (Peace), § 150.
(ft) Jay's treaty (1794), § 150a.

(d) Treaty of Ghent (IH14), § 150c.

(e) Conventions of 1815, 1818, ^ 150cl

(f) Asbburton treaty (1842), $ 1.50e.

(fif) Clayton-Bulwer treaty (1850), $ 150/.

(ft) Treaty of Washington (1871) and Geneva tribunal, $ 150^.

(13) Hanseatic Republic, $ 151.

(14) Hawaii, § 151a.

(15) Italy, $ 152.

(16) Japan, § 153.

(17) Mexico, § 154.

(18) Netherlands, § 155.

(19) Paraguay, $ 156.

(20) Peru, § 157. • .

(21) Portugal, § 158.

(22) Eussia, § 159.

(23) Sardinia, $ 160.

(24) Spain.

(a) Treaty of 1795, $ 161.

(ft) Florida negotiations and treaty of 1816-20, § 161a.

(25) Sweden and Norway, § 162.

(26) Switzerland, § 163.

(27) Tripoli, ^ 164.
(28; Turkey, § 165.

(29) Venezuela, § 165a.

(30) Wurtemberg, $ 166.

CHAPTER VII.

CITIZENSHIP, NATURALIZATION, AND ALIENAGE.

I. Expatriation.

(1) Principle of expatriation affirmed, ^ 171.

(2) Conditions imposed by Government of origin have no extra-territorial

■force, § 172.

(3) Nor can the rights of foreigners be limited by country of temporary

residence requiring matriculation or registry, $ 172a.
II. Naturalization.

(1) Principles and limits of, § 173.

(2) Process and proof, § 174.

(3) Judgment of, cannot be impeached collaterally, but if fi'audulent tiaay

be repudiated by Government, $ 174a.

(4) Mere declaration of intention insufficient, $ 175.
III. Abandonment of citizenship.

(1) Citizenship may be so forfeited, § 176.

(2) Or by naturalization in another country, $ 177.

(3) Effect of treaty limitations, § 178.

(4) Under treaty with Germany, two years' residence in Germany jprinw

facie proof of ab- ndonment, § 179.

• * XXV

ANALYSIS.

IV. Liabilities of naturalized citizen on returning to native lajs^d.

(1) While voluntary expatriatiou i.s no ground for adverse proceedinga it

is otherwiso as to acts done by liiui before expatriation, § IRO.

(2) If be left military duty due and unperformed, be may be beld to it if

be return after naturalization, § 181.

(3) But no liability for subsequent duty. $ 182.
V. Children.

(1) Born in the United States generally citizens, § 183.

(2) So of cbildren of naturalized citizens, § 184.

(3) So of cbildren boru abroad to citizens of tbe United States, $ 185.
VI. Married women.

A married woman partakes of ber busband's nationality, $ 186.
VII. Territorial change.

(1) Allegiance follows, ^ 187.

(2) Naturalization by revolution or treaty, $ 188.
VIII. Protection of government.

(1) Granted to citizens abroad, § 189.

(2) Eigbt may be forfeited by abandonment of citizenship, $ 190.

(3) Care of destitute citizens abroad not assumed, ^ 190a.
IX. Passports.

(1) Can only be issued by Secretary of State or bead of legation, § 191,

(2) Only to citizens, § 192.

(3) Qualified passports and protection papers, $ 193.

(4) Visas, and limitations as to time, $ 194.

(5) How to be supported, § 195.

(As to sea letters, see j^^ 408^.)
X. Indians and Chinese.

(1) Indians, § 196.

(2) Chinese, 6 197.
XI. DOMICIL.

(1) May give rights and impose duties, $ 198.

(2) Obtaining and proof of, § 199.

(3) Eifect of, S 200.
XII. Aliens.

(1) Rights of, ^ 201.

(2) Not compellable to military service, § 202.

(3) Subject to local allegiance, $ 203.

(4) And so to taxation, ^ 204.

(5) When local or jiersonal sovereign liable for, $ 205.

(6) May be expelled or rejected by local sovereign, § 206.
XIII. Corporations.

Foreign corporations presumed to be aliens, ^ 207.

CHAPTER VIII.

north AMERICAN INDIANS.

I. Jurisdiction and title.

(1) Are domestic dependent nations, § 208.

(2) Cannot transmit title, § 209.
II. Treaties with.

(1) Must be duly solemnized, $ 210.

(2) Liberally construed, § 211.

XXVI

ANALYSIS.
CHAPTER IX.

CLAIMS.

I. Mode of presentation.

(1) Home claimant must make out his case to the Department by affidavit

or otlior proof, § 2i:J.

(2) Foreign claimaut must appear through diplomatic agency, § 214.
II. Who may claim.

(1) United States citizenship must be shown to sustain claim, and such

citizenship must have existed vrhen the claim accrued, $ 215.

(2) A citizen who has voluntarily expatriated him elf cannot claim the

interposition of the Department, § 216.

(3) Corporations, $ 217.

III. Practice as to proof and process.

(1) Department cannot examine witnesses under oath, $ 218.

(2) No peremptory demand to be made unless under instructions from

Department, $ 219.

(3) Department has control of case, and may arbitrate, compromise, or

withdraw, § 220.

(4) Arbitration proper when Governments disagree ; limits of arbitration,

^ 221.
(.'j) Government may resort to extreme measures to enforce payment, ^
222.

IV. Claims based on war.

(1) A sovereign is not ordinarily responsible to alien residentsfor injuries

they receive on his territory from belligerent action, or from insur-
gents whom he could not control, or whom the claimant Govern-
ment had recognized as bellig^rent, ^ 223.

(2) Nor for injuries from acts of legitimate warfare waged by him on his

enemy's soil, § 224.

(3) Greytown bombardment, ^S 224a.

(4) But belligerent is liable for injuries inflicted in violation of rules of

civilized warfare, § 22.5.

V. Claims based on mob injuries.

A government is liable internationally for such injuries when it could
have prevented them ; but when there is a remedy given in the
judicial tribunals, this must be pursued, ^ 226.
VI. Claims based on spoliation.

(1) Foreign neutrals liable for breach of neutrality, § 227.

(2) Foreign belligerents liable for abuse of belligerency, ^ 228.

(3) How far public ships are liable for torts, $ 229.

VII. Claims baskd on denial or undue discrimination of justice.

(1) Such claims ground for interposition, § 230.

(2) But not mere national peculiarities in administering justice not vio-

lating international oldigations, ^ 230a.
VIII. Contractual claims.

(1) Not ordinarily pressed, $ 231.

(2) Exception where diplomacy is the only mode of redress, § 232.

(3) Tender of good offices, § 233.
IX. Claims for real estate.

(1) Title to be bued for at situs, ^ 234.

(2) Otherwise as to trespasses and evictions, § 23.5.
X. Claims based on negligence, § 23r)«.

XI. Liability for prior Government.

Governments liable for predecessors' spoliations, ^ 236.

XXVII

ANALYSIS.

XII. Defences.

(1) Part payment, $237.

(<J) Ha pendens, election of another tribunal, res adjudicata, § 238.

(3) Limitation, $ 239.

(4) Intermediate war or settlement, § 240.

(5) Non-exhaustion of local judicial remedies, ^ 241.

(fi) But this does not apply where there is no local judiciary, or wliere the
judicial action is in violation of international law, or where the test
is waived, or wliere thei"e is undue discrimination, S 242.

(7) Culpability of claimant, § 243.

(8) No national discrimination as to claimant, $ 244.

XIII. Pkactice as to paymkn't, ^ 245.

XIV. Intekest.

Nor generally allowable, ^ 246.
XV. Damages.

Remote, not allowable, ^ 247.
XVI. Home Government's liability for abandoning claim, §248.
XVII. Foreign sovereigns may sue in Federal courts, § 249.

CHAPTER X.

.marriage.

I. Mode of solemnization.

(1) At common law, consensual marriage valid, § 260.

(2) Solemnization valid at place of marriage is valid everywhere, § 261.

(3) Local prescriptions as to form liave no extra- territorial force, § 262.
II. Matrimonial capacity.

Determined by national policy, vS 263.

CHAPTER XI.

extradition.

I. Ordinarily no extradition without treaty, o 268.

II. Demand confined to treaty offences, $ 269.

III. Trial to be only for offences enumerated in treaty, $ 270.

IV. Crime must have been ■svithix jurisdiction of demanding State.

(1) On laud, § 271.

(2) On ship-board, ^ 27l«.

V. No extradition for political offences, ij 272.
VI. No defence that defendant is citizen of asylum State, § 273.
VII. Must be specific foreign de.mand, (j 274.
VIII. State governments cannot extradite, ^n 275.
IX. Practice as to arrest.

(1) Preliminary executive mandate, ^ 276.

(2) Form of complaint and warrant, ^ 276o.

(3) Mode of arresting and detention, § 2766.

X. Evidence on which process will be granted, § 277.

XI. Practice as to review, § 278.

XII. Practice as to habeas corpus, § 279.

XIII. Practice as to surrender, § 280.

XIV. Expenses, § 281.

XV. Treaties retrospective, § 282.

XXVIII

ANALYSIS.
CHAPTER XII.

ISTHMUS OF PANAMA,

I. Transit over by international law.

Such transit cannot rightfully 1)b closed, § 287.
II. Transit over by treaty with New Granada.

(1) Limitations of treaty, ^ 288.

(2) Continuance of, § 2^9.

III. Effect of guarantee of under treaty.

(1) Such guarantee binds Colombia, $ 290.

(2) Does not guarantee against changes of government, § 291.

IV. Relations to particular countries.

(1) Colombia, $ 292.

(2) Nicaragua, $ 293.

(3) Costa Rica, § 294.

(4) The Mosquito Country and Belize, § 295.

(5) Honduras, $ 296.
((■)) Venezuela, ^ 29?.

CHAPTER XIII.

FISHERIKS

I. Law of nations.

(1) Fishing on high seas open to all, $ 300.

(2) Sovereign of shore has jurisdiction of three-mile marine belt following the

sinuosities and indentations of the coast.
II. Northeast Atlantic fisheries.

(1) These were conquered from France by the New England colonies, acting

in co-operation with Great Britain, with whom they were afterwards
held in common by such colonics, $ 301.

(2) Treaty of peace (1783) was not a grant of independence, but was a parti-

tion of the empire, the United States retaining a common share in the
fisheries, § 302.

(3) War of 1812 did not divest the.se rights, $ 303.

(4) Treaty of 1818 recognized their existence and affirmed their continuance,

$ 304.

(5) Under these treaties the three-miles belt follows the sinuosities and in-

dentations of the coast, § 305.

(6) Bay of Fundy and other large bays are open seas, § 305a.

(7) Ports of entry are not affected by limitations imposed by treaty of 1818,

^ 306.

(8) British municipal legislation may restrict, but cannot expand, British

rights under these treaties, $ 307.

(9) Great Britain, and not her provinces, is the sovereign to be dealt with for

infraction of such fishing rights, § 308.

CHAPTER XIV.

guano islands.

I. Title in international law.
Based on discovery, 9 310.
II. Title under United States statute.

(1) Discovery of guano deposits gives title, $ 311.

(2) Aves Islands, § 312.

(3) Lobos Islands, § 313.

(4) Other islands, $ 314.

XXIX

ANALYSIS.
CHAPTEK XV.

PACIFIC METHODS OK HEDRESS.

I. Apology, uepakatiox, satisfaction, and indemnity.

(1) Apology and saluting tlag, ivS ;U.").

(2) Cession of territory, * iUort.

('.i) Case of Chesapeake and Lenpard, ^ 315b.

(4) Case of Dartmoor prisoners. ^ 315c.

(5) Case of Prometheus, v^ 3l.5d.

II. Arbitkatiox, $ 316.

III. Withdrawal of diplo.matic relations, § 317.

IV. Retorsion and reprisal, ^ 31P.

V. Non-intercourse, §. 319.

VI. Embargo, § 320.

VII. Display of force, Oi 321.

CHAPTEK XVI.

visit, search, capture, and impressment.

i. as a belligerent right.

Visit in such cases permitted, ^^ 325.
TI. In casks of piracy.

On iirobable cause papers may be demanded, § 32fi

III. Visit no longer permitted in peace, $ 327.

IV. Action of prize court may be essential, $ 328.

V. When having jurisdiction such court may conclude, § 329.

VI. But not when not in conformity with international law, $ 329«.
VII. Proceedings of such court, ^ 330.

VIII. Impressment.

Its history and abandonment, v^ 331.

CHAPTER XVII.

WAR.

I. Conditions and declaration of.

(1) May be limited and conditioned, § 333.

(2) Declaration may be formally necessary, $ 334.

(3) But not practically essential, § 335.

II. Effect of as to civil rights.

(1) Abrogates treaties, $ 336.

(2) Breaks up business and suspends contracts, § 337.

(3) But not truces, $ 337a.

III. Application of to enemy's property.

(1) Private property on land not usually subject to enemy's seii^ure, $ 338.

(2) Contributions may be imposed, § 339.

(3) State moveable property may be seized, § 310.

(4) So of property in enemies' territorial waters, ^ 341.

(5) Liability to seizure of enemy's private property on high seas under

neutral flag, $ 342.

(6) Liability of neatral property under enemy's tlag, J 343.

(7) Exceptions as to rule of seizure of enemy's property at sea, $ 344.

(8) What is a lawful capture of an enemy's merchant ship, § 345.

(9) When convoys protect, $ 346.

XXX

ANALYSIS.

IV. Rules of civilized ware auk to hk obseuvkd

(1) Spies aud their treatment, ^ :>-47.

(2) Prisouers and their treatment.

(a) General rules, § 348.
(6) Arbuthnot and Ambrister, ^ 348a.
(c) Reprisals in war of lbl2, § 34sf&.
((^ Dartmoor prisoners, \S 348c.
(e) Cases in Mexican war, <J 3iSd.

(3) Wanton destrnction irohibited, ^ 349.

V. Who are entitled to belligerent rights.

(1) In foreign war authorization from 8over<^ign generally necessary, §350^

(2) Insurgents are belligerents when proceeded against by open war, §

351.
VI. When enemy's character is imputable to neutrals.

(1) When residing in enemy's jurisdiction, ^ 352.

(2) When leaving property at enemy's disposal, ^ 353.
VII. ADMINISI RATION BY CONQUEROR.

(1) As to courts, $ 354.

(2) As to executive, $ 355.

VIII. Ending of war.

(1) By cessation of hostilities, ^ 356.

(2) By treaty of peace, § 357.

CHAPTER XVIII.

BLOCKADE.

I. What essential to. ^

(1) Must be duly instituted, § 359.

(2) Must be notified to neutrals, $ 360.

(3) Must be eifective, § 361.

(4) Obstructions may be temporarily placed in channel of access, 5 361a.
II. Enforcement of.

(1) Vessels seeking evasion of may be seized, ^ 362.

(2) Must be brought to prize court, $ 363.

III. Pacific Blockade, iJ 364.

IV. Duty op neutral as to blockade running, § 365.

CHAPTER XIX.

CONTRABAND.

I. Munitions of war contraband, ^ 368.

II. And whatever is essential to belligerent support.

(1) As to coal, § 369.

(2) As to provisions, § 370.

(3) As to money, § 371.

(4) As to horses, $ 372.

(5) As to merchandise, § 373.

(6) As to soldiers, § 373a.

III. How far dispatches and diplomatic agents are contraband, $ 374.

IV. Penalties on contraband.

May be seized on high seas, $ 375.

XXXI

ANALYSIS.
CHAPTER XX.

PIRACY AND PRIVATEEHING.

I. Definition of piracy.

(1) Must be robbery on the high seas, $ 3d0.

(2) Warlike attacks of iusur<;ents uot piracy, ^ 381. •

II. Municipal definitions not extka-tkrritorial ^ 382.
III. Privateer.s.

(1) Who are, § 383.

(2) Not pirates by law of nations, $ 384.

(3) Sustained by policy of the United States, § 385.

CHAPTER XXI.

neutrality.

I. Rights of neutral.

(1) May trade with either belligerent, and herein as to trade with colonies

not open in peace, $ 388.

(2) May permit free discussion as to foreign sovereigns, § 389.

(3) May permit subjects to furuish funds or supplies to belligerents, $ 390.

(4) Or munitions of war, ^ 391.

(5) Or to enlist in service of belligerent, $ 392.
(fi) Or to sell or purchase ships, $ ;i93.

(7) Or may give asylum to belligerent ships or troops, $ 394.
II. Restrictions of neutral.

(1) Bound to restrain enlistments by belligerent, § 395.

(2) Or issuing of armed expeditions, § 395a.

• (3) Bound to restrain fitting out of and sailing of armed cruisers of bellig-
erent, § .396.

(4) Or passage of belligerent's troops over soil, § 397.

(5) Bound not to permit territory to be made the base of belligereut opera-

tions, $ 398.

(6) Nor to permit belligerent naval operations in territorial waters, ^ 399.

(7) Nor to permit sale of prize in ports, ^ 400.

(8) Bound to redress damages done to belligerent by its conrivance or neg-

ligence, $ 401.

III. Degree of vigilance to be exercised.

(1) Not perfect vigilance, but suchas is reasonable underthe ( irmmstances,

§ 402.

(2) Rules of 1871, and Geiu-va Tribunal, 9 402a.

IV. Municipal statutes not extra-territorial, o 403.

V. Persons violating municipal statute may be proceeded against munici-
pally, $ 404.
VI. Policy of the United States is maintenance of neutral rights, § 405.

XXXII

ANALYSIS.

CHAPTER XXII.
ships' papp)RS and sea-letters.
I. Vessels carrying the flag of the United States cannot, in time of

PEACE, BE ARRESTED ON THE HIGH SEAS, EXCEPT AT THE RISK OF THE PARTY
MAKING THE ARREST, ^ 408.

II. Ships' papers certifying, under the authority of the United States,

THAT THE VESSEL HOLDING THEM IS A VESSEL OF THE UNITED STATES, CAN-
NOT BE TESTED AS TO ALLEGED FRAUDULENCY BY FOREIGN POWERS. TlIE
QUESTION OF THEIR VALIDITY IS EXCLUSIVELY FOR THE UNITED STATES,

$409.
III. Vessels owned by citizens of the United States may carry the flag
OF THE United States on the high seas, and are entitled to the pro-
tection of the United States Government, though from being
foreign built, or from other causes, they are not and cannot be
registered as vessels op the united states, § 410.

cnArTEiv* XXIII.

letters rogatory.

Practice as to such letters, $ 413.

XXXIII

ERRATA.

Page 491, at end of I 67, for "Mr. Bayard to Mr. Morrison"
read "Mr. Bayard to Mr. Morrow ^

Bage 632, 1st line in I 89a, for "most" read "moot."

Bage 703, 19th line, for " Frenehmen" read " Fix^nchman:'-

Bage 716, IJftli line from bottom, for "Mrs.'' read "Miss" Austen.

Bage 736, 3d line of 4th paragrajdi, for " Torif read " Troy."

ANALYSIS.
CHAPTER XX.

PIRACY AND PRIVATEEinNG.

I. Definition of piracy.

(1) Must be robbery on the high seas, $ iWO.

(2) Warlike attacks of lusurgents uot piracy, ^ 381. •
II. Municipal definitions not extka-territoeial $ 382.

III. Privateer.s.

(1) Who are, $ 383.

(2) Not pirates by law of nations, ^ 384.

(3) Sustained by policy of the United States, § 385.

CHAPTER XXI.

neutrality.

I. Rights of neutral.

(1) May trade with either belligerent, and herein as to trade with colonies

uot open in iJeace, § 388.

(2) May permit free discussion as to foreign sovereigns, § 389.

(3) May permit subjects to furnish funds or supplies to belligerents, $ 390.

(4) Or munitions of war, ^ 391.

(5) Or to enlist in service of belligerent, § 392.
(fi) Or to sell or purchase ships, § ;}93.

(7) Or may give asylum to belligerent ships or troops, $ 394.
II. Restrictions of neutral.

(1) Bound to restrain enlistments by belligerent, § 395.

(2) Or issuing of armed expeditions, $ 395a.

* (3) Bound to restrain fitting out of and sailing of armed cruisers of bellig-

ANALYSIS.

CHAPTER XXII.
ships' papers and sea-letters.
I. Vessels carrying the flag of the United States cannot, in time of

PEACE, BE A1{RESTP:D ON THE HIGH SEAS, EXCEPT AT THE RISK OF THE PARTY
MAKING THE ARREST, ^ 408.

II. Ships' papers certifying, under the authority of the United States,

THAT the vessel HOLDING THEM IS A VESSEL OF THE UNITED STATES, CAN-
NOT BE TESTED AS TO ALLEGED FRAUDULENCY BY FOREIGN POWERS. ThE
QUESTION OF THEIR VALIDITY IS EXCLUSIVELY FOR THE UNITED STATES,

$409.
III. Vessels owned by citizens of the United States may carry the flag
OF THE United States on the high seas, and are entitled to the pro-
tection OF the United States Government, though from being
foreign built, or from other CAUSES, they are not and cannot be

REGISTERED AS VESSELS OF THE UNITED STATES, § 410.

CIIAITEK' XXIII.

letters rogatory.

Practice as to such letters, $ 413.

XXXIII

CHAPTER I.

SOVEREIGNTY OVER LAND.

II.

III.

IV.

V.
VI.

VII.

VIII.

IX.

XI.

XII.

XIII.

XlV.
XV.

XVI.

XVII.

XVIII.
XIX.

Territorial sovereign supreme, § 1.

Discovery the basis of title, § 2.

Conquered territory sub.ject to temporary military control, § '.i.

Conquered, annexed, or divided territory retains its prior municipal

institutions, § 4.
Benefits and burdens pass to conquering or annexing sovereign, ^ 5.
But such country not affected by acts of prior sovereign after

CESSION, '3 5a.
Colonies becoming independent retain their boundaries and other

RIGHTS, § 6.

Title of de facto government to obedience, $ 7.
Law of nations part of law of land, § 8.
Municipal laws not extra-territorial, $ 9.
Distinctive rule as to taxes, § 10.
Distinctions as to federal constitution, ^ 11.
Territory as a rule inviolable.

(1) General principles, § 11a.

(2) Recruiting in foreign State forbidden, § 12.

(3) Permission requisite for passage of foreign troops, $ 13.

(4) And so of foreign seizure of persons or property, § 14.

(5) And so of foreign jurisdiction of crime, § 15.

(6) And so of foreign sending of paupers and criminals, $ 16.
Exception as to necessity, ^ 17.

Exception as to foreign sovereigns, foreign ministers, and foreign

troops, § 17a.
Exception as to uncivilized lands, § 176.
Duty of sovereign to restrain agencies likely to injure another

COUNTRY.

(1) Predatory Indians, § 18.

(2) Other marauders, § 19.

(.3) Diversion or obstruction of water, § 20.
When harm is done by order of foreign sovereign such sovereign

is the accountable party, $21.
Territorial boundaries determined by political, not judicial, action,
$ 22.

I. TEBBITOBIAL SOVEREIGN SUPREME.

§ 1.

The authority of a nation within its own territory is absolute and ex-
clusive.

Church V. Hubbart, 2 Cranch, 187, 234. (See more fully ivfra, § 9.)

Any restriction upon this sovereignty, when such restriction comes
from a foreign power, implies a transfer ^ro tanto of such sovereignty

§ 1.] SOVEREIGNTY OVER LAND. [CHAP. I.

to such power. "This full aud absolute territorial jurisdiction being
alike the attribute of every sovereign, and being incapable of conferring
extraterritorial power, would not seem to contemplate foreign sover-
eigns nor their sovereign rights as its objects. One sovereign being in
no respect amenable to another, .and being bound by obligations of the
highest character not to degrade the dignity of his nation by placing
himself or its sovereign rights within the jurisdiction of another, can be
supposed to enter a foreign territory only under an express license, or
in the confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved by im-
plication, and will be extended to him,"

Marshall, C. J. Schooner Excharge v. McFaddon, 7 Cranch, 137. (See infra, $
17a.)

A foreign power cannot of right institute or erect any court of judi-
cature of any kind, within the jurisdiction of the United States, but
such only as may be warranted by and be in pursuance of treaties.
Hence the admiralty jurisdiction, which has been exercised in the United
States by consuls of France, not being so warranted, is not of right.

Glass V. Sloop Betsey, 3 Dallas, 6.

A seizure for the breach of the municipal laws of one nation cannot
be made within the territory of another.

The Apolloa, 9 Wheaton, 362.
It belongs to sovereignties to fix boundaries between their respective
jurisdictions ; and when fixed by compact, they become conclusive |ipon
their citizens and bind their rights.

Poole V. Fleeger, 11 Peters, 185. (See infra, ^$9, 11a.)

The doctrine of the unity of sovereignty within specific territorial
bounds, and of homogeueousness of institutions and laws within tbose
bounds, is of comparatively recent origin. At the breaking up of the
Boman Empire, when, within the territory formerly dominated by Eome,
distinct nationalities, with distinct usages aud laws, were introduced, it
was not attempted to extend over races so diverse, and with such strongly
variant traditions, i\ jurisprudence which would apply equally to all
dwelling within the same territorial limits. Hence, while the invading
nations wjio settled within the old Roman boundaries retained each
their own usages and laws, there was no attempt to break down the
usages and laws by which the Romans were personally governed. From
this sprang up the system of what is called "personal" law; i. e., law
which derives its character not from locality, but from race. In mod-
ern Europe " personal " law has been almost entirely superseded by " ter-
ritorial" law; i. e., law imposed by the sovereign of the territory upon
all who occupy it. Few exceptions are now recognized in Europe. The
chief of these are those which in certain countries impose disabilities on
Jews. {Infra, § 55.) In the United States we have a remarkable excep-
tion, as will liereafter be more fully seen, in the Indian pace (see infra,
§208). The members of that race, when dispersed in the general poj)-
ulation, are governed, as are the persons about them, by "territorial"
law ; 1. e., the law of the land which they occupy. When, however, they
are collected in tribal reservations, they are governed, at least in part,
2

CHAP. I.] TITLE BY DISCOVERY. [§ 2.

by the law of their tribe. With this exceptiou, all persons resident
iu the United States are equally subject to the law of the particular part
of the country in which they reside. But this " territorial" law is itself
modified by the following; conditions:

(1) Persons who, though residing on our soil, are domiciled in another
country, are subject, so far as concerns personal taxation, legitimacy,
and the distribution of their personal property after death, to the law
of their domicile, and not to the law of their temporary residence. Dom-
icile, not temporary residence, also determines the jurisdiction of divorce
proceedings. [Inf.^ § 2iS^ jf.)

(2) The law that determines the mode of solemnizing marriage is that
of the place of solemnization, (iw/., § 2G0 ff.)

(3) "Territorials^ sovereignty, while absolute, so as to exclude, except
by its own permission, foreign jurisprudences, so far from excluding a
distribution of power, primarily iu the people, and secondarily in sev-
eral gradually ascending or co-ordinate departments of government, is
in all modern civilized countries so distributed. This is eminently so
in the United States. {Infra, § 11.)

On the general question of "territorial" as distinguished from "per-
sonal" law may be consulted Maine's Ancient Law, where the growth
of the "territorial" system is traced at large, and authorities cited in
Whart. Conf. of Laws, §§ 7, 8, 9, 84 J\

II. DISCOVERY THE BASIS OF TITLE.

§2.

[This topic in reference to transmission of Indian titles, is discussed infra § 209 ; as to
guano islands, infra $ 310.]

" On the discovery of this immense continent the great nations of Europe
were eager to appropriate to themselves so much of it as they could
respectively acquire. * * * But, as they were all in pursuit of nearly
the same object, it was necessary, in order to avoid conflicting settle-
ments, and consequent war with each other, to establish a principle
which all should acknowledge as the law by which the right of acquisition,
which they all asserted, should be regulated as between themselves.
This principle was, that discovery gave title to the Government by whose
subjects or by whose authority it was made against all other European
Governments, which title might be consummated by possession. The
exclusion of all other Europeans necessarily gave to the nation making
the discovery the sole right of acquiring the soil from the natives, and
establishing settlements upon it. It was a right with which no European
could interfere. It was a right which all asserted for themselves, and
to the assertion of which by others all assented. * * * While the dif-
ferent nations of Europe respected the right of the natives as occu-
pants, they asserted the ultimate dominion to be in themselves, and
claimed and exercised as a coijsequence of this ultimate dominion a
power to grant the soil while yet in possession of the natives. These
grants have been understood by all to convey a title to the grantees,
subject only to the Indian right of occupancy."

Marshall, C. J., Johnson v. Mcintosh, 8 Wheat., 572 j^.

§ 2.] SOVEREIGNTY OVER LAND. [CHAP. I.

The title to the land in the English-settled colonies in this country
has "been granted by the Crown while in the occupation of the Indians.
These grants purport to convey the soil as well as the right of domin-
ion to the grantees." * * * u The magnificent purchase of Louisiana
was the purchase from France of a country almost entirely occupied
by numerous tribes of Indians who are, in fact, independent. Yet, any
attempt of others to intrude into that country would be considered as
an aggression which would justify war. Our late acquisitions from
Spain are of the same character ; and the negotiations which preceded
those acquisitions recognize and elucidate the principle which has been
received as the foundation of all European title in America. The
United States, then, have unequivocally acceded to the great and broad
rule by which its civilized inhabitants now hold this country. They
hold and assert in themselves the title by which it was acquired. They
maintain, as all others have maintained, that discovery gave an exclu-
sive right to extinguish the Indian title of occupancy, either by purchase
or bj' conquest ; and gave also a right to such a degree of sovereignty
as the circumstances of the people would allow them to exercise.''
Hence a conveyance of title to lands exclusively derived from an Indian
tribe northwest of the Ohio in 1773 and 1775 to private persons conveys
no title. (

Marshall, C. J., Johnson v. Mcintosh, 8 Wheat., 543, 579. 587.

The rights of the original inhabitants were not entirely disregarded,
but were necessarily, to a considerable extent, impaired. These inhab-
itants were admitted to be the occupants of the soil ; but their rights to
complete sovereignty, as independent nations, were necessarily dimin-
ished, and their power to dispose of the soil at their own will was denied
by the original fundamental principle that discovery gave exclusive
title to those who made it.

Johnson i'. Mcintosh, 8 Wheat., 543.

So far as respects the Crown to whose authority the States succeeded,
no, distinction was taken between vacant lands and lands occupied by
the Indians. The title, subject only to the right of occupancy by the
Indians, was admitted to be in the King, and he could grant the lands
away, or reserve them for the Indians.

Ibid. : see United States v. Fernandez, 10 Peters, 303.
(See in/m 209.)

The English possessions in America were not claimed by right of con-
quest, but of discovery, and were held by the King, as the representa-
tive of the nation, for whose benefit the discovery was made. When
the revolution took i)lace, the people of each State, in their sovereign
character, acquired the absolute right to all their navigable waters, and
the soil with them.

The grant from Charles II to the Duke of York, of the territory which
4

CHAP. I.] TITLE BY DISCOVERY. [§ 2.

now forms the State of New Jersey, passed to the Duke the soil under
the navigaWe waters as one of the royalties incident to the powers of
government, which were also granted, to be held by him in the same
manner and for the same purposes as this soil had been previously held
by the Crown, and the same is true of the grantees of the Duke. And
when these grantees surrendered to the Crown all the powers of gov-
ernment, the title to the soil passed to the Crown, and at the Revolu-
tion became vested in the State of New Jersey.

Martin v. Waddell, 16 Peters, 367.

" How far the mere discovery of a territory which is either unsettled,
or settled only by savages, gives a right to it, is a question which neither
the law nor the usages of nations has yet definitely settled. The opin-
ions of mankind, upon this point, have undergone very great changes
with the progress of knowledge and civilization. Yet it will scarcely
be denied that rights acquired by the general consent of civilized na-
tions, even under the erroneous views of an unenlightened age, are
protected against the changes of opinion resulting merely from the
more liberal, or the more just, views of after times. The right of na-
tions to countries discovered in the sixteenth century is to be deter-
mined by the law of nations as understood at that time, and not by the
improved and more enlightened opinion of three centuries later."

Mr. Upshur, Sec. of State, to Mr. Everett, Oct. 9, 1843. MSS. Instruc. Great
Britain.

" The ground taken by the British Government, that a discovery made
by a private individual, in the prosecution of a private enterprise, gives
no right, cannot be allowed. There is nothing to support it, either in
the reason of the case or in the law and usage of nations. To say the
least of it, if a discovery so made confers no right, it prevents any
other nation from acquiring a right by subsequent discovery, although
made under the authority of Government, and with an express view to
that object. In no just acceptation of the term can a country be said
to be ' discovered,' if its existence has been previously ascertained by
actual sight. This is a mere question of fact, which a j^rivate person
can settle as well as a public agent. But be this as it may, Meares
himself was but the agent of a private trading company, without any
authority whatever from his Government, so that, in this respect, his
discovery stands upon no better ground than that of Captain Gray."
Ihid.

" Now, mere lapse of time, independent of legislation or positive
agreement, cannot of itself either give or destroy title. It gives title
only so far as it creates a presumi)tion, equivalent to proof, that a title
exists, derived from higher sources: it destroys title only because it
creates a like presumption that, whatever the title may have been, it
has been transferred or abandoned. Thus it is merely evidence and

§ 8.] SOVEREIGNTY OVER LAND. [CHAP. I.

notbing more. It creates a presumption equivalent to full proof. But
it differs from proof in this, that proof is conclusive and final, whereas
l)resnmi3tion is conclusive only until it is met by counter-proof, or a
stronger counter-presumption."
Ibid.

"That continuity furnishes a just foundation for a claim of territory,
in connection with those of discovery and occupation, would seem un-
questionable. It is admitted by all, that neither of them is limited by
the precise spot discovered or occupied. It is evident that, in order to
make either available, it must extend at least some distance beyond that
actually discovered or occupied ; but how far, as an abstract question,
is a matter of uncertainty. It is subject, in each case, to be influenced
by a variety of considerations. In the case of an island, it has been
usually maintained in practice, to extend the claim of discovery or occu-
pancy to the whole ; so likewise in the case of a river, it has been usual
to extend them to the entire region drained by it, more especially in cases
of a discovery and settlement at the mouth ; and emphatically so when
accompanied by exploration of the river and region through which it
flows. Such, it is believed, may be affirmed to be the opinion and prac-
tice, in such cases, since the discovery of this continent. How far the
claim of continuity may extend in other cases, is less perfectly defined,
and can be settled only by reference to the circumstances attending
each. When this continent was first discovered, Spain claimed the
whole, in virtue of the grant of the Pope; but a claim so extrav-
agant and unreasonable was not acquiesced in by other countries,
and could not be long maintained. Other nations, especially Eng-
land and France, at an early period contested her claim. They
fitted out voyages of discovery, and made settlements on the eastern
coast of ISTorth America. They claimed for their settlements, usually,
specific limits along the coasts or bays on which they were founded;
and, generally, a region of corresponding width extending across the
entire continent to the Pacific Ocean. Such was the character of the
limits assigned by England in the charter which she granted to her for-
mer colonies, now the United States, when there Y^re no special reasons
for varying from it. How strong she regarded her claim to the region
conveyed by these charters and extending westward of her settlements,
the war between her and France, which was terminated by the treaty
of Paris, in 1763, furnishes a striking illustration. That great contest,
which ended so gloriously for England, and effected so great and dura-
ble a change on this continent, commenced in a conflict between her
claims and those of France, resting, on her side, on this very right of
continuity, extending westward from her settlements to the Pacific
Ocean; and, on the part of France, on the same right, but extending
to the region drained by the Mississippi and its waters, on the ground
of settlement and exploration. Their respective claims, which led to
6

CHAP. I.] TITLE BY DISCOVERY. [§ 2.

the war, first clashed on the river Ohio, the waters of whicli tlie col-
onial charters, in their western extension, covered ; bnt which France
had been unquestionably the first to settle and explore. If the rel-
ative strength of these different claims may be tested by the result
of that remarkable contest, that of continuity westward must be i)ro-
nounced to be the stronger of the two. England has had at least the
advantage of the result, and would seem to be foreclosed against con-
testing the principle, particularly as against us, who contributed so
much to that result, and on whom that contest and her example and
pretensions, from the first settlement of our country, have contributed
to impress it so deeply and indelibly. But the treaty of 1763, which
terminated that memorable and eventful struggle, yielded, as has been
stated, the claim and all the chartered rights of the colonies beyond
the Mississippi. The seventh article establishes that river as the jjerma-
nent boundary between the possessions of Great Britain and France on
this continent." This treaty, Mr. Calhoun proceeded to argue, trans-
ferred to France the title of Great Britain to the country west of the
Mississippi, which title passed from France to the United States by the
treaty ceding Louisiana. Mr. Calhoun then maintained that Spain's
title to the region west of the Eocky Mountains, based on discovery,
was transferred to the United States, by cession from Spain to France,
and then from France to the United States.

Mr. Calhoun, Sec. of State, to Mr. Pakenham, Sei^tember 3, 1844, MSS. Notes.
Great Britain ; 5 Callioun's Works, 432.

" Discovery alone is not enough to give dominion and jurisdiction to
the sovereign or government of the nation to which the discoverer be-
longs ; such discovery must be followed by possession. 'All man-
kind,' says that eminent and impartial writer on international law,Vat-
tel, ^have an equal right to things that have not yet fallen into the
possession of any one, and those things belong to the person who first
takes possession of them. When, therefore, a nation finds a country
uninhabited and without an owner, it may lawfully take possession of
it ; and after it has sufficiently made known its will in this respect, it
cannot be deprived of it by another nation.' 'Thus,' continues the
learned author, 'navigators going on voyages of discovery, •furnished
with a commission from their sovereign, and meeting with islands or
other lands in a desert state, have taken possession of them in the name
of their nation, and this title has been usually resi)ected, provided- it
was soon after followed by a real jjossession.' (Vattel, Ch. XVIII, page
98, Philadelphia edition, 1849.)"

Mr. Fislj, Sec. of State, to Mr. Preston, Dec. 31, 1872. MSS.. Notes Hayti.

"The fact that the discoveries of an American citizen first revealed
the importance of the Congo country seems to justify this Government
in claiming a special intiuence upon the determination of the questions

§ 2.] SOVEREIGNTY OVER LAND. [CHAP. I.

touching all foreign arrangements for the administration of that region,
especially as to i;s commerce.''

Mr. Frelinghnysen, Sec. of State, Let. to Mr. Chandler, Nov. 22, 1884, MSS. Dora.
Let.

See farther as to Congo and other explorations, infra. $ 51.

As to territoriality of rivers, see infra, § 30.

As to title to derelict or unappropriated gnano islands, based on discovery, see
infra, ^ 310.

As to title of island to San Juan, Puget Sound, on the northwestern coast, see Mr.
Cass, Sec. of State, to Lord Lyons, October 22, 1859, MSS. Notes, Great Brit-
ain; as to temporary joint occupancy of same island, see Mr. .Trescot, Acting
Sec. of State, to Mr. Irvine, August 18, 1860, Id. ; House Ex. Doc. No. 77,
Thirty-sixth Congress, first session; Senate Ex. Doc. No. 10, Thirty- sixth
Congress, tirst session; Senate Ex. Doc. No. 29, Fortieth Congress, second
session. See also 50 Brit, and For. State Papers, 18.59-'60, p. 796.

A "Memoir, Historical and Political, on the Northwest Coast of North America
and its adjacent territories, illustrated by a map, «fec., by Robert Greenhow
translator and librarian to the Department of State," 228 pages, is given in
Senate Document No. 174, Twenty-sixth Congress, first session.

As to title of Key Yerd Island, latitude 22^ 15' north, longitude 75- 10' west from
Greenwich, see Senate Reports of Committees No. 280, Thirty-sixth Congress,
first session.

III. COXQUEBED TERRITORY SUBJECT TO TEMPORARY MILITARY COS-

TROL.

By the conquest and military occupation of a portion of the territory
of the United States by a public enemy, that portion is to be deemed a
foreign country so far as respects our revenue laws.
U. S. r. Rice, 4 Wheat., 246.

The holding of a conquered territory is regarded as a mere military
occupation until its fate shall be determined at the treaty of peace. If
it be ceded by the treaty, the acquisition is confirmed, and the ceded
territory becomes a part of the nation to which it is annexed, either on
the terms stipulated in the treaty of cession, or on such as its new mas-
ter shall iojpose. On such a transfer of territory it has never been held
that the relations of the inhabitants with each other undergo any change.
Their relations with their former sovereign are dissolved, and new re-
lations are created between them and the Government which has ac-
quired their territory. The same act which transfers their country
transfers the allegiance of those who remain in it; and the law, which
may be denominated political, is necessarily changed, although that
which regulates the intercourse and general conduct of individuals re-
mains in force until altered by the newly-created power of the state.
American Insurance Co. r. Canter, 1 Peters, 511. See infra ^ 187-8.

By the conquest and military occupation of Castine by the British on
Sei^tember 1, 1814, that territo:y passed under the temporary allegiance
8

CHAP. I.] TITLE BY CONQUEST. [§ 3

and sovereignty of the enemy, Tlie sovereignty of tlie United States
over the territory was suspended during such occupation, so that the
laws of the United States could not be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to the
conquerors. But, on the other hand, a territory conquered by an en-
emy is not to be considered as incorporated into the dominions of that
enemy, without a renunciation in a treaty of peace, or a long and per-
manent possession. Until such incorporation, it is still entitled to the
full benefit of the law of postliminy.
U. S. V. Hay ward, 2 Gall., 4b5.

The capture and occupation of Tampico, by the arms of the United
States, during the war with Mexico, though sufficient to cause it to be
regarded by other nations as part or our territory, did not make it a
part of the United States under ocr constitution and laws ; it remained
a foreign country within the meaning of the revenue laws of the United
States.

♦ Fleming v. Page, 9 Howard, 603.

The port of San Francisco was conquered by the United States as
early as 1846. " Shortly afterward, the United States had military pos-
session of all of Upper California. Early in 1847, the President, as
constitutional Commander-in Cbief of the Army and Navy, authorized
the military and naval commander of our forces in California to excer-
cise the belligerent rights of a conqueror, and to form a civil govern-
ment for the conquered country, and to impose duties on imports and
tonnage as military contributions for the support of the Government
and of the army which had the conquest in possession. * * * "^q
one can doubt that these orders of the President, and the action of our
Army and Navy commander in conformity with them, were according
to the law of arms and the right of conquest, or that they were oi)era-
five until the ratification and exchange of a treaty of peace. Such
would be the case by the law of nations in respect to war and peace be-
tween nations. In this instance it is recognized by the treaty itself."

Cross V. Harrison, 16 Howard, 190.

The powers of such military courts do not necessarily terminate with
cessation of hostilities, if the conquering power retains the sovereignty
of the conquered territory ; and suits pending in such courts may, on
the organization of civil government, be transferred by statute to the
new courts so organized.

Leitensdorfer v. Webb, 20 Howard, 176.

The proclamation of General Butler at New Orleans, dated the 1st
and published on the 6th of May, 1862, announcing that " all rights of
property" would be held "inviolate, subject only to the laws of the
United States" ; and tjiat " all foreigners not naturalized, claiming alle-
giance to their respective governments, and not having made oath of

§ 3.] SOVEREIGNTY OVER LAND. [cHAP. I.

allegiance to the government of the Confederate States." would be
"protected in their persons and property as heretofore under the laws
of the United States," did but reiterate the rules established by the
legislative and executive action of the National Government ; and ves-
sels and cargoes belonging to citizens of New Orleans, or neutrals re-
siding there, and not affected by any attempts to run the blockade, or
by any act of hostility against the United States, were protected by
that proclamation, though such persons, by being identified with the
enemy by long voluntary residence and business relations, may have
been "-enemies" within the meaning of the expression as uspd in public
law.

The Venice, 2 Wallace, 258.

A conqueror has a right to displace the pre-existing authority and
to assume, to such extent as he may deem«proper, the exercise by him-
self of all powers and functions of government. He may appoint all
the necessary oflOicers and clothe them with designated i^owers, larger
or smaller, according to his pleasure, and he may prescribe the revenues
to be paid, and apply them to his own use or otherwise. There is
no limit to the powers that may be exerted in such cases, save those
which are found in the laws and usages of war, as settled by the law of
nations.

New Orleans v. Steamship Company, 20 Wallace, 387.

This subject, in reference to the invader's right to property seized by him, is dis-
cussed infra, § § 338 ff.

" By the law of nations a conquered territory is subject to be gov-
erned by the conqueror daring his military possession, and until there
is either a treaty of peace, or he shall voluntarily withdraw from it. The
old civil government being necessarily superseded, it is the right and
duty of the conqueror to secure his conquest, and to provide for the
maiutenance of civil order and the rights of the inhabitants. This
right has been exercised and this duty performed by our military and
naval commanders, by the establishment of temporary governments in
some of the conquered provinces in Mexico, assimilating them as far as
practicable to the free institutions of our own country. In the prov-
inces of New Mexico, and of the Californias, little if any further resist-
ance is apprehended from the inhabitants to the temjjorary govern-
ments which have thus, from the necessity of the case-and according to
the laws of war, been established. It may be proper to provide for
the security of these important conquests by making an adequate ap-
propriation for purpose of erecting fortiiications and defraying the ex-
penses necessarily incident to the maintenance of our jjossession and
authority over them. "

President Polk's second annual message, 1846. See ivfra $$ 353, jf.

"In prosecuting a foreign war thus duly declared by Congress, we
have the right, by conquest and military occui^atiou, to acquire posses-
10

CHAP. I.] EFFECT OF CHANGE OF SOVEREIGN. [§ 4.

sion of the territories of the enemy, and, during the war, to exercise
the fullest rights of sovereignty over it. The sovereignty of the enemy
is in auch case 'suspended,' and his laws can 'no longer be rightfully
enforced' over the conquered territory, 'or be obligatory upon the inhab-
itants who remain and submit to the conqueror. By the surrender the
inhabitants pass under a temporary allegiance' to the conqueror, and
are 'bound by such laws, and such only, as' he may choose to recognize
and impose. 'From the nature of the case, no other laws could be obli-
gatory upon them; for where there is no protection, or allegiance, or
sovereignty, there can be no claim to obedience.' These are well-estab-
lished principles of the laws of war, as recognized and practised by
civilized nations ; and they have been sanctioned by the highest judicial
tribunal of our own Qountry."

President Polk's special message, July 24, 1848.

The conqueror possesses the right to prescribe the limitations of his
conquest and the terms and conditions of peace.

2 Op., 321, Berrien, 1830.

The conquest of a country, or a portion of a country, by a public
enemy entitles such enemy to the sovereignty as far as his conquest
extends, and gives him dominion as long as he retains his military pos-
session.

9 Op., 140, Black, 1858.

The inhabitants who remain and submit, and strangers who go there
during the occupation, must take the law from the ruler de facto^ and
not from the government de jure, which has been expelled; and when
the former government resumes possession, whether by force or by
treaty, it cannot call the citizens or subjects of a third nation to account
for obeying the authority which was temporarily supreme.

Ihid. As to effect of cessation of- hostilities, see infra, $ 355. As to de facto
goveraments, see infra, $ 7.

IV. CONQUERED, ANNEXED, OR DIVIDED TERRITORY RETAINS ITS
PRIOR MUNICIPAL INSTITUTIONS.

A mere change of sovereignty does not produce any change in private
rights of proj)erty in the soil, whether the interest was acquired by law
under a grant from the State or by individual contract.
Mutual Assurance Society v. Watts, 1 Wheat., 279.

Had Florida changed its sovereign by an act containing no stipulation
respecting the property of individuals, the right of property in all those
who became subjects or citizens of the new government would have
been unalfected by the change.

y. S. V. Percheman, 7 Peters, 51.

§ 4.J SOVEREIGNTY OVER LAND. [cHAP. I.

The second article of the treaty between the United States and Spain,
of February 22, 1819, by which His Catholic Majesty ceded to the United
States, in full property aud sovereignty, all the territories, &c., did not
operate to afiect the titles of individuals to portions of the ceded terri-
tory. The provision in the eighth article for the confirmation of all
grants made before a certain time " by His Catholic Majesty or his
lawful authorities," &c., did not enlarge the cession ; and under it grants
made by a governor, generally authorized to grant lands, are not only
prima facie valid, but binding until disavowed, even if there was power
in the Crown to disavow it. /

United States v. Clarke, 8 Peterg, 436.

But an order of survey made by the governor after January 24, 1819,
was void under the treaty.
Ibid. Siipra, ^ 5a.

The sovereign who acquires an inhabited territory acquires full do-
minion over it, but this dominion does not divest the vested rights of
individuals to property.

Delassus v. United States, 9 Peters, 117; Mitcliel v. United States, iUd., 711;
U. S. V. Perclieman, 7 ibid., 51.

By the law of nations the rights and property of the inhabitants are
protected, even in the case of a conquered country, and held sacred and
inviolable wiien it is ceded by treaty, with or without any stipulation to
such effect; and the laws, whether in writing or evidenced by the usage
and customs of the conquered or ceded country, continue in force till
altered by the new sovereign.

Strotlier r. Lucas, 12 Peters, 410.

Everj" nation acquiring territory, by treaty or otherwise, must hold it
subject to the constitution and laws of its own government, and not
according to those of the government ceding it.
Pollard's Lessee v. Hagan, 3 Howard, 212.

The rights and powers of sovereignty of a nation over its territory
cease on the transfer of that sovereignty to another government by a
cession of the territory. The power to preserve peace and order may
remain in the officers previously appointed by the ceding state until
the actual presence of the agents of the succeeding government, but this
does not imply that sovereign power remains in the former nation.

U. S. r. Reynes, 9 Howard, 127 : Davis v. Concordia, id., 280 ; U. S. v. D'Auterive,
in Howard, (ifl9 ; Montanlt t'. U. S., 12 id., 47.

It is true that in a treaty for the cession of territory, its national
character continues for all commercial purposes, but full sovereignty
for the exercise of it does not pass to the nation to which it is trans-
ferred until actual delivery. But it is also true that the exercise of
sovereignty by the ceding country ceases, except for strictly municipal
12

CHAP. I.] EFFECT OF CHANGE OF SOVEREIGN. [§ 4.

purposes, especially for granting lauds. And for tbe same reason in
both, cases, because after tbe treaty is made there is not in either the
union of possession and the right to the territory which must concur to
give iilenum dominium et utile. To give that there must be the jus in
rem and ihajus in re, or what is called in the common law of England
the juris et seisinae conjunetio.

Davis?;. Concordia, 9 Howard, 280. Infra, ^ r>rt.

When Florida was ceded to the United States and possession of it
had actually been taken it was held by the Secretary of the Treasury,
whose opinion was sanctioned by the Attorney-General, that, under
our revenue laws, its ports must be regarded as foreign until they were
established as domestic by an act of Congress.

Flemlog V. Page, 9 Howard, 603.

In cases of conquest, among civilized countries, having established
laws of property, the- rule is that laws, usages, and municipal regula-
tions in force at the time of the conquest remain in force until changed
by the new sovereign.

U. S. V. Power's heirs, 11 Howard, 570; U. S. v. Heirs of Rillieux, 14 id., 189.

Spanish laws prevailing in Louisiana before its cession, and affecting
titles to lands there, must be judicially noticed by the court. Their
existence is not matter of fact to be tried by a jury.

U. S. V. Turner, 11 Howard, 663.

The mere fact that a territory has been ceded by one sovereignty to
another does not open it to a free commercial intercourse with the
world as a matter of course until the new possessor has prescribed by
legislation some terms upon which intercourse may be conducted.
Cross V. Harrison, 16 Howard, 164.

The general principle is undisputed that the division of an empire
works no forfeiture of a right of property previously acquired.

Jones V. McMasters, 20 Howard, 8.

When New Mexico was conquered by the United States, it was only
the allegiance of the people that was changed ; their relation to each
other and their rights of property remained undisturbed.
Leitensdorfer et al. v. Webb, 20 Howard, 176.

The courts of the United States, in passing upon the rights of the
inhabitants of California to the property they claim under grants
from the Spanish and Mexican governments, must be governed by the
stii)ulations of the treaty, the law of nations, the laws, usages, and
customs of the former government, the principles of ecpiity, and the
decisions of the Supreme Court, so far as they are applicable.

U. S. V. Auguisola, 1 Wallace, 352.
As to Mexican titles, sec infra § 58.
As to *.reaty stipulations with Spain, see infra § 161.

5> 4.] SOVEREIGNTY OVER LAND. [CHAP. I.

The cession of California to the United States did not impair the
rights of private property. Those riglits are consecrated by the law
of nations and protected by the treaty of Guadalupe- Hidalgo.

U. S. V. Moreno, 1 Wallace, 400.

As to treaty of Guadalupe-Hidalgo, see infra § 154.

After conquest such of the habitants as do not remain and become
citizens of the victorious sovereign, but, on the contrary, adhere to
their old allegiance and continue in the service of the vanquished
sovereign, deprive themselves of protection or security to their proper-
ty, except so far as it may be secured by treaty. Hence, where, on
such a conquest, a treaty provided that the former inhabitants who
wished to adhere in allegiance to their vanquished sovereign might sell
their property, provided they sold it to a certain class of persons and
within a time named, the property, if not so sold, became abandoned
to the conqueror.

U. S. V. Repentigny, 5 Wallace, 211.

As to naturalization by territorial change, see infra § 187.

The treaty of Guadalupe-Hidalgo, between the United States and
Mexico, did not divest the pueblo, existing at the site of the city of San
Francisco, of any rights of property, or alter the character of the inter-
ests it may have held in any lauds under the former government. It
makes no distinction in the protection it provides between the property
of individuals and that held by towns under the Mexican Government.

Townsend v. Greeley, 5 Wallace, 326. See ivfra, § 152.

By the law of nations a change of government does not affect pre-
existing rights of property.

U, S. V. Rosehus et al., 15 Howard, 36 ; Strotlier v. Lucas, 12 Peters, 412 ; Dent v.
Emmeger, 14 Wallace, 308.

This rule does not extend to mere inchoate rights of property, such
as are of imperfect obligation and affect only the conscience of the new
sovereign.

Dent V. Emmeger, 14 Wallace, 308.

Titles which^were perfect before the cession of Louisiana to the United
States continued so afterwards, and were in no wise affected by the
change of sovereignty. The treaty so provided, and such would have
been the effect of the principles of the law of nations if the treaty had
contained no provision on thA subject.

United States v. Roselius, 15 Howard, 31 ; Strotlier v. Lucas, 12 Peters, 412 ;

Dent V. Emmeger, 14 Wallace, 308.
(As to operation of treaties annexing Louisiiina, see infra, $ 148; annexing

Florida, itifra, § 161 ; annexing California and New Mexico, infra, § 154.)

After the surrender of Kew Orleans to General Butler, and the issu-
ing of his proclamation of May 1, 1802, declaring that " all rights of
property of whatever kind will be held inviolate, subject only to the
14

CHAP. I.] EFFECT OF CHANGE OF SOVEREIGN. [§ 4.

laws of the United States," private property iu the district under his
command was not subject to military seizure as booty of war, though
not exempt from confiscation under the acts of Congress as enemies'
property, if in truth it was such.

Planters' Bank v. Union Bank, 16 Wallace, 483.

The division of a country and the maintenance of independent gov-
ernments over its different parts do not of themselves divest the rights
which the citizens of either have to i^roperty situate within the terri-
tory of the other.

Airhartw. Massieu, 98 U. S., 491,

A Mexican was not, by the revolution which resulted in the independ-
ence of Texas, or by her constitution of March 17, 1836, or her laws sub-
sequently enacted, divested of his title to lands in that State, but he
retained the right to alienate and transmit them to his heirs, and the
latter are entitled to sue for and recover them.

Hid.

As to annexation of Texas, see infra, §$ 72, 154.

The general principle that when political jurisdiction and legislative
power over a territory are transferred from one sovereign to another,
the municipal laws of the territory continue in force until abrogated by
the new sovereign, is applicable as to territory owned by the United
States, the exclusive jurisdiction of which is ceded to them by a State
in a manner not provided for by the Constitution, to so much thereof as
is not used by the United States for its forts, buildings, and other need-
ful purposes.

Chicago and. Pacific Eailway Co. v. McGlinn, 114 U. S., 542.

The State of Kansas ceded to the United States exclusive jurisdic-
tion over the Fort Leavenworth Military Reservation within that State,
then and i)reviously the property of the United States. At the time of
the cession a State law" was in force in Kansas requiring railroad com-
panies whose road was not inclosed by a lawful fence, to pay to the
owners of all animals killed or wounded by the engines or cars of the
companies the full value of the animals killed and the full damage to
those wounded, whether the killing or wounding was caused by negli-
gence or not. It was ruled in the Supreme Court thatthis act remained
in force in the reservation after the cession.

Ibid.

" I understand the decision of the Supreme Court of the United States
in the case of Harrison v. Cross (16 Howard, 164-202) to declare its
opinion that upon the addition to the United States of new territory by
conquest and cession, the acts regulating foreign commerce attach to
and take effect within such territory ipso facto, and without any fresh
act of legislation expressly giving such extension toihepreexisting laws.
I can see no reason for a discrimination in this respect between acts

§ 4.] SOVEREIGNTY OVER LAND. [CHAP. I.

regulating foreign commerce and the laws regulating intercourse with
the Indian tribes. There is, indeed, a strong analogy in the two sub-
jects. The Indians, if not foreigners, are not citizens, and their tribes
have the character of dependent nations under the protection of this
Government. As Chief-Justice Marshall remarks, delivering the opin-
ion of the Supreme Court in Worcester v. The State of Georgia (6 Peters,
557) ' the treaties and laws of the United States contemplate the In-
dian territory as completely separated from that of the States, and pro-
vide that all intercourse with them shall be carried on exclusively by
the Government of the Union.'

" The same clause of the Constitution invests Congress with power
to regulate commerce with foreign nations * * * and with the
Indian tribes.'

-' The act of June 30, 1834 (4 Stat., 729), defines the ' Indian country?
as, in fact, ' all that part of the United States west of the Mississippi
and not within the States of Missouri and Louisiana, or the Territory
of Arkansas.' This, by a happy elasticity of expression, widening as
our domain widens, includes the territory ceded by Russia."

Mr. Seward, Sec. of State, to Mr. Schotield, Jan. 30, 1869, MSS. Doni. Let.

For an elaborate discussion of Spanish titles in West Florida, see report of Mr.

Livingston, Sec. of State, to President Jackson, June 12, 1832, MSS. Report

book Dep. of State.

"But the decision now made rests on an alleged rule of international
law which, assumed, as it now is, by the Government of Chili, becomes
a proper matter of discussion between ourselves and that Government.
It is asserted by the Government of Chili (for, in international relations,
and the maintenance of international duties, the action of the judiciary
in Chillis to be treated, when assumed by the Government, as the act ot
the Government) that a sovereign, when occuj^ying a conquered territory,
has, by international law, the right to test titles acquired under his prede
cessor by applying to them his own municipal law, and not the muni-
cipal law of his predecessor under which they vested. The true prin-
ciple, however, is expressed in the following passage cited in the me-
morialist's brief:

"'But the right of conquest cannot affect the property of private
persons ; war being only a relation of state to state, it follows that one
of the belligerents who makes conquests in the territory of the other
cannot acquire more rights than the one for whom he is substituted ;
and that thus, as the invaded or conquered state did not possess any
right over private property, so also the invader or conqueror cannot
legitimately exercise any right over that property. Such is to day the
public law of Europe, whose nations have corrected the barbarism of
ancient practices which place j)rivate as well as public property under
military law.' [C. Mass6, Rapports du droit des gens avec le droit
civil. Vol. I, p. 123, § 148-149.1
16

CHAP. I.] CONTINUITY OF TITLES. [§ 4.

" This doctrine has frequently been acted on in the United States.
Thus it has been held by the Supreme Court that when ISTew Mexico
was conquered by the United States, it was only the allejifiance of the
people that was changed; their relation to each other, and their rights
of property remained undisturbed. [Leitensdorfer v. Webb, 20 How.,
17G.]

" The same has been held as to California. The rights acquired under
the prior Mexican and Spanish law, so it was decided, were 'consecrated
by the law of nations.' [U. S. v. Moreno, 1 Wall., 400. See U. S. v.
Auguisola, 1 Wall., 352; Townsend v. Greeley, 5 Wall., 326; Dent v.
Emmeger, 14 Wall., 308; Airhart v. Massieu, 98 U. S., 491; Mutual
Assurance Society v. Watts, 1 Wheat, 279 ; Belassus v. U. S., 9 Peters,
117; Mitchel v. U. S., 9 Peters, 711; U. S. v. Eepentigny, 5 Wall., 211.]

" The Government of the United States, therefore, holds that titles
derived from a duly constituted prior foreign Government to which it
has succeeded are ' consecrated by the law of nations' even as against
titles claimed under its own subsequent laws. The rights of a resident
neutral — having become fixed and vested by the law of the country —
cannot be denied or injuriously affected by a change in the sovereignty
or public control of that country by transfer to another Government.
His remedies may be affected by the change of sovereignty, but his
rights at the time of the change must be measured and determined by
the law under which he acquired them. * * * The Government of
the United States is therefore prepared to insist on the continued valid-
ity of such titles, as held by citizens of the United States, when at-
tacked by foreign Governments succeeding that by which they [were]
granted. Title to land and landed imiDroveraents, is, by the law of na-
tions, a continuous right, not subject to be divested by any retroactive
legislation of new Governments taking the place of that by which such
title was lawfully granted. Of course it is not intended here to deny
the prerogative of a conqueror to confiscate for political offenses, or to
withdraw franchises which by the law of nations can be withdrawn by
Governments for the time being. Such prerogatives have been conceded
by the United States as well as by other members of the family of na-
tions by which international law is constituted. What, however, is
here denied is the right of any Government to declare titles lawfully
granted by its predecessor to be vacated because they could not have
been lawfully granted if its own law had, at the time in question, pre-
vailed. This pretension strikes at that principle of historical municipal
continuity of Governments which is at the basis of international law."
Mr. Bayard, Sec. of State, to Mr.Koberts, Mar. 20, 1886, MSS.Instr. Chili.

On the cession of Florida to the United States the jurisdiction and
authority of the former sovereign continued in full force until possession
of the ceded territory had actually passed. It follows that an importa-
tion of goods into the Floridas after the cession, but previously to the
S. Mis. 1G2— VOL. I 2 17

§ 5] , SOVEREIGNTY OVER LAND. [CHAP. I.

delivery of possession, was aii affair between the importer and the
Spanish Government, of which the G-overnment of the United States
had no ri![;lit to complain.
1 Op., 483, Wirt, 1821.

But goods carried into a port of Florida before the delivery of posses-
sion, remaining in j)ort on shipboard until after delivery and then
brought into the United States, having never been entered in the Span-
ish custom-houses, would be subject to the revenue laws of the United
States.

Unci. See infra, ^ 161, as to treaty ceding Florida.

Grants of land in Florida made by the King of Spain to the Eoman
Catholic Church before the cession of that territory to the United States
were valid, and were confirmed by the treaty of cession.

1 Op., 563, Wirt, 1822.

As to annexation of Louisiana and Florida see infra, ?§ 148, 161.

V. BENEFITS AND BURDENS PASS TO CONQUERING OB ANNEXING

SOVEREIGNS.

§ 5.

Under the treaty of the 1st of October, 1800, Louisiana was ceded to
the United States in full sovereignty and in every respect, with all its
rights and appurtenances, as it was held by the Eepublic of France and
as it was received by that Eepublic from Spain.

New Orleans v. United States, 10 Peters, 662; Strother v. Lucas, 12 Peters, 410.
Infra, §148.

The treaty of Guadalupe Hidalgo imposed upon the Government of
the United States the obligation to i^rotect titles to land in California
acquired under Mexican rule.

Peralta v. U. S., 3 Wallace, 434.' Infra, ^ 1.54.

The Government of the United States, after the cession of Louisiana,
succeeded to the sovereign interests of France and Spain in that prov-
ince, including reservations of the right to use soil for public purposes.

Joseplis V. U. S., 1 Nott. and H., 197; 2 Nott. and H., 586.

But this succession did not authorize the United States to exercise
prerogatives of sovereignty not consistent with the Constitution of the
United States.

New Orleans v. U. S.,10 Pet., 682.

As to treaty ceding Louisiana, see infra, § 148.

An alliance between two nations cannot absolve either of them from
the obligations of previous treaties with third powers.

Mr. Adams, Sec. of State, to Mr. De Onis, March 12, 1818. MSS. For. Leg. Notes.
Infra, $ 136.

CHAP, l] burdens pass TO NEW SOVEREIGN. [§ 5.

" No principle of international law can be more clearly established
than this, that the rights and the obligations of a nation in regard to
other States are independent of its internal revolutions of government.
It extends even to the case of conquest. The conqueror who reduces a
nation to his subjection receives it subject to all its engagements and
duties towards others, the fultillment of which then becomes his own
duty. However frequent the instances of departure from this principle
may be in point of fact, it cannot, with any color of reason, be contested
on the ground of right."

Mr. Adams, Sec. of State, to Mr. Everett, August 10, 1818. MSS. Instruc. to
Ministers. Infra, $$ 135-137.

" Your letter of the 24th instant and the proposals contained in it,
ottered as the basis of a treaty for the adjustment of all the subjects in
discussion between the United States and Spain, have been received
and laid before the President of the United States. I am directed by
him to forbear entering into any examination of the historical disquisi-
tion concerning the original pretensions of Spain to all the territories
bordering on the Gulf of Mexico and the whole country included in the
French colony of Louisiana, which you have thought proper to introduce
into youi' note. The right of the United States to the river Mississippi
and to all the waters flowing into it, and to all the territories watered
by them, remains as entire and unshaken by anything now adduced by
you as by anything which had ever preceded it in the discussions be-
tween the two Governments. It is established beyond the power of
further controversy; nor could it answer any useful purpose to repro-
duce proofs which have already more than once been shown, and which,
remaining unimpaired, must henceforth be considered by the United
States as not susceptible of refutation."

Mr, Adams, Sec. of State, to Mr. De Ouis, October 31, 1818. MSS. For. Leg,

Notes.
As to title to the Mississippi, see infra, $ 30; as to treaties with France and

Spain, see infra, §$ 148, 161.

" In the event of a state being divided into two or more independent
sovereignties, the obligations which had accrued to' the whole before
the division are ratably binding on the different parts; for, as Story
says, ' the division of an empire creates no forfeiture of previously vested
rights of property.' And so, e contrarioj where several separate states
are incorporated into one sovereignty, tlie rights and obligations that
belonged to each before the union are binding upon the new state; but,
as General Halleck points out, of course the rule must be modified to
suit the uiiture of the union formed and the characters of the act of in-
corporation in each particular case."

Abdy's Kent (1878), 96, citing Wheat., Elem., ed. 1863, vol. 1, p. 52, note 20.

It was held by the commissioners under the British- American mixed
commission of 1853, where it appeared that a claim against Texas, on
bonds for which the revenue was pledged, had not been recognized by
the British Government as a subject for diplomatic intervention before
the convention of 1853, and provision had previously been made by

§ 5.] SOVEREIGNTY OVER LAND. [CHAP. I.

negotiatious between the United States and Texas for the tuljustmeut
of «uch claims, that the case did not fall within the unsettled claims
referred to the commissioners.

Proceedings of commission, &c., 382.

In his ojjinion Mr. Upham, commissioner, said :

"The matter of the indebtedness of Texas was a distinct subject of
agreement by the terms of the union. According to those terms the
vacant and unappropriated lands within the limits of Texas were to
be retained by her, ' and applied to the payment of the debts and lia-
bilities of the Eepublic of Texas, and the residue of the lands, after dis-
chargiug these debts and liabilities, was to be disposed of as the State
might direct, but in no event were the debts and liabilities to become
a charge upon the Government of the United States.' [United States
Statutes at Large, vol. 5, p. 798.]

" The lands of Texas were thus specifically set apart for the payment
of the debts of Texas, by agreement of the two Governments, in addi-
tion to any separate pledge Texas had previously made of this class of
property, for the payment of her debts.

" The United States subsequently, by act of Congress, on the 9th of
September, 1850, on condition of the cession of large tracts of these
lands, agreed to pay Texas $10,000,000, but stipulated ' that 15,000,0.00
of the amount should be retained in the United States Treasury until
creditors, holding bonds, for which duties on imports were specifically
pledged, should file releases of all claims against the United States.
[United States Statutes at Large, vol. 9, ch. 49, p. 446.]

" It thus appears that the United States has acted, from the outset,
in concert with Texas, in causing express provision to be made for the
payment of these debts.

"A difiiculty early arose in carrying the law, above cited, into effect,
for the reason that the pledge of payment of the debts of Texas was
made generally upon her revenues, and was not specific ' on imposts ' eo
nomine, and for the further reason that doubts arose whether any por-
tion of the debts could be paid, under this contract, unless the whole
could be discharged.

" These questions have been considered at much length by the advis-
ing officers of Government, and reports have been made ou the subject
by Mr. Corwin, the Secretary of the Treasury, and more recently by
Mr. Gushing, Attorney-General, on the 26th of September, 1853, and a
bill is now i)ending before Congress for the better adjustment of the
matters in controversy. [By act of Congress, passed February 28, 1855,
$7,750,000 was appropriated, subject to certain arrangements, siuce
acceded to by Texas, for the payment of Texan claims. United States
Statutes at Large, vol. 10, p. 617.]

" Tlie reports of these officers are confined to the proper coiistiu(;tion
of acts of Congress, assented to by Texas, in reference to their lands

CHAP. I.] BURDENS PASS TO NEW SOVEEEIGN. [§ 5.

and debts. It did not become necessary to discuss the question of the
liability of the United States for the payment of the debts, and such
discussion was expressly waived by them in considering the subject.
The tendency of Mr. Cushing's opinion, so far as his views can be
gathered, is to establish the liability of the United States for these
debts in part. He says, however, that it ' by no moans follows, from the
action of the United States, in providing for the payment of a j^ortion
of the debts of Texas from the proceeds of the lands, the Government
have assumed any liability thereby, or impliedlj" recognized any liability
on their part, or that any less readiness will be shown by Texas to fulfill
the engagement, in regard to her debts, contained in her compact of
admission to the Union.'

" I have thus recited at length the facts relating to the indebtedness
of Texas by these bonds ; the compact between the two Governments,
in relation to this indebtedness, on the admission of Texas into the
Union, and the act of Congress and measures since had and now pend-
ing npon the subject, in order to show the position in which these claims
have been regarded.

" It appears, then, that at the time of the union of these Govern-
ments, and from that time to the present, including the period of the
session of this commission, the subject of these claims has been con-
sidered solely as a matter of adjustment between the United States
and Texas.

"The indebtedness of Texas, some years since, was conceded to be
rising $10,000,000. Whether the United States should be liable for
this indebtedness I do not feel called upon to decide. It is clear Texas
is not exonerated from the debt, and the United States has manifested
a strong disposition to bring about its adjustment.

"My difficulty in this case is, that nothing has been shown to us
bringing it within our jurisdiction, under the convention of 1853.

"There has been no evidence that claim has been made on the United
States through the agency of the J^ritish Government, for the payment
of this class of debts. Moreover, it has not been the policy of the
ministers of either Government to interfere in behalf of their citizens,
in the case of deferred payment of loans to other Governments ; cer-
tainly not as between Great Britain and the United States.

"This question had not been brought to the notice of either Govern-
ment, or been made a matter of correspondence and difficulty between
them, neither was it included in any list of unsettled claims at the date of
the convention.

"It is clear, therefore, to my mind, for these reasons, and from the
contemporaneous proceedings between th<j United States Government
and Texas as to these claims, that they had not been considered mat-
ters of international controversy with Great Britain, and were not,
within the intent of either contracting party, embraced among the out-
standing claims to be acted upon by this commission."

§ 5.] SOVEREIGNTY OVER LAND. [CHAP. I.

Mr. Hornby, the British commissioner, dissenting from this con-
clusion, the case was referred to the umpire, Mr. Bates, wlio "held that
cases of this description were not included among the unsettled claims
that had received the cognizance of the Governments, or were de-
signed to be embraced within the provisions of the convention, and
were, therefore, not within the jurisdiction of the commission."

Report of the claims conimissiou established under the couvention of 1853,

with Great Britain, pp. 406-409, 426.
As to annexation of Texas, see infra, §§ 70,72, 154.

"By the annexation of Texas to the United States, the power to
lay and collect duties on imports passed to the latter : but Texas re-
tained her public lands, pledged to the payment of her debts; and the
act of annexation declared that they should in no event be a charge
on the United States. Afterwards, the United States took portions of
those public lands, agreeing to pay therefor ten millions of dollars,
half to be retained until the holders of the bonds of Texas, for which
her customs duties were pledged, should release their claims. By a
later act the United States reserved three-quarters of the sum, to be
paid ])ro rata among the bondholders on their releasing their claims.
Some of these boudliolders were British subjects ; and the claims of
one (James Holford) were submitted to the mixed commission estab-
lished under the convention of February 8, 1853 ; but the commission
decided that the claims were not within the jurisdiction of the com-
mission, as they had never been matter of diplomatic demand by Great
Britain on the United States. [Eeport of the commission under the
convention of 1853, 382-426. U. S. laws, v, 797 ; viii, 446; x, 617.]

"It certainly would not be satisfactory to say that the United States
discharges its obligation to the creditors of Texas, to whom her cus-
toms were pledged, by paying only the amount of the customs re-
ceived. The United States determines what those duties shall be, in
reference to the interests and policy of the whole Eepublic. The con-
dition of Texas is changed by her annexation. The new government
has a large control over the material resources of the inhabitants, in
the way of internal revenues, excise or direct taxation, in its demands
on the services of the people, and in the debts it can impose ; in fact,
the entire public system of Texas has passed into other hands, and no
such state of things any longer exists as that to which the creditor
looked. It may be better or worse, but it is not the same ; and, if the
duties laid by the United States and collected in Texan ports did not
in fact pay the debts, it would be unjust for the United States to limit
the payment of the creditor to them. The truth is, by the annexation
the United States changed the nature of the thing pledged, and is
bound generally to do equity to the creditor.

"In the separations and rearrangements of nations in Europe, special
provisions are usually made for the payment of public debts; and the
principle seems admitted that, in case of a division of a state, each
new state is bound for the whole debt contracted by the former; and,
in case of a union of states, it seems equally clear that, as the whole
must defend the part in war, which is the international process of attach-
ment; it must practically pay the debt, although the foreign power may
look only to the people and land of the state which made the contract.
The formation of the new states so alters the nature of all the securities

CHAP. I.J BURDENS PASS TO NEW SOVEREIGN. [§ 5.

the creditor looked to, that the new state has a general obligation to
see that he does not suffer by the change."

DancVs Wheaton, $ 30, note 18.

See President Tyler's fourth annual message, and 87 Ann. Reg., 273, 305; and
as to Texas, see infra, $^ 70, 72, 154.

"The liability of the United States for the debts of Texas came before
the mixed commission, under the convention with England of 1853, in
the case of a British subject who had received before the annexation
bonds secured by a pledge of the faith and revenue of Texas. It was
disposed of on the ground that never having been made a subject for
international interposition against the United States, it did not fall
within the scope of the convention; but it seemed to be admitted that
the liability of the United States, if any, aro.^^e, not from the merger,
but from the transfer, under the Constitution of the United States, to
the Federal Government of the duties on imi)orts. It was said by the
American commissioner, in announcing his opinion, that it was an in-
accurate view of the case to regard this annexation as an entire absorp-
tion of one nation and its revenues by another. 'Texas is still a sov-
ereign State, with all the rights and capacities of government, except
that her international relations are controlled by the United States, and
she has transferred to the United States her right of duties on imports.'
And he seemed to consider any claim arising from the previous pledge
of such duties to be limited to their value. The British commissioner
held that 'the obligation of Texas to pay her debts is not in dispute, nor
has it been argued that the mere act of her annexation to the United
States has transferred her liabilities to the Federal Government, though
certainly, as regards foreign governments, the United States is now
bound to see that the obligations of Texas are fulfilled. It is the trans-
fer of the integral revenues of Texas to the Federal Government that
is relied on as creating the new liability.' Decisions of the commission
of claims under the convention of 1853, pp. 405-420."

Lawrence's Wheaton, ed. 1863, p. 54, note.

As to public debt of Texas, see papers connected with House Mis. Doc. No. 17,

33d Cong., 2d sess.
As to effect of revolution on obligations, see infra, ^^ 137,240.
As to effect of a treaty of cession as a deed of the ceded territory by its former

sovereign, see Foster v. Neilson, 2 Pet., 253,307; U. S. v. Arredondo, 6 id.

691,738; infra, $ UB, supra, § 4.
For a general discussion of the effect of the cession of Florida to the United

States under the treaty of 1819, see Mitchel v. United States, 9 Peters, 711 ;

infra, $ 161.

" While it may be true that as a general rule when one country is
absorbed in another, the treaties of perhaps the more inconsiderable
of the two are often regarded as annulled because of the convenience
and the interests of other states, which lead them to regard such an-
nuUment with favor as tending to their own advantage, nevertheless
it is believed that the absorption of a state is not always attended by
an admitted annulment of its treaties. The union between the United
States and Texas, to which you refer, was effected by the legislation
of the parties. It necessarily canceled the treaties between Texas

§ 5a.] SOVEREIGNTY OVER LAND. [CHAP. I.

antl foreign powers, so far at least as those treaties wore inconsistent
with the Constitution of this country, which requires customs duties
to be uniform throughout the United States."

Mr. Fish, Sec. of State, to Aristarchi Bey, Sept. 18, 1876. MSS. Notes,

Turkey.
As to Texas, see further, infra, § 72, et neq., ^ 154.
As to effect of annexation ou treaties, see infra, ^ 36.

Chili, in taking possession, at the close of the late war with Peru, of
the guano deposits belonging to Peru, took them subject only to such
liens as were binding under Peruvian law at the time of cession.
Mr. Bayard, Sec. of State, to Mr. Cowie, June 10, 1885. MSS. Dom. Let.

By the formation of the Xorth German Union, after the battle of
Sadowa, the entire navy of the union was placed under the command
of Prussia. It was held that the provision of the treaty of May 1,
1828, between the United States and Prussia, for the arrest of desert-
ers from the public vessels of the resijective countries, applied to public
vessels sailing undej the flag of the North German Union.

12 Op., 463, Evarts, 1868.

VI. BUT SUCH COUNTRY NOT AFFECTED BY ACTS OF PRIOR SOVER-
EIGN AFTER CESSION.

§ 5a.

Grants made by the Spanish Government in the Mississippi Terri-
tory after the ratification of the treaty by which the land was ceded to
the United States are void; and, though a patent were dated before,
unless delivered before, it fails to carry title.
1 Op., 108, Lincoln, 1802.

Grants of contested territory made flagrante hello by the party who
fails, can only derive validity from treaty stipulations.
Harcourt v. Gaillard, 12 Wheaton, 523.

An adjudication as to title to certain lauds in Louisiana, made by
a Spanish tribunal in that territory after its cession to the United
States, but before actual possession had been surrendered, the terri-
tory being de facto in the possession of Spain, and subject to Spanish
laws, was held valid as the adjudication of a competent tribunal hav-
ing jurisdiction of the case.

Keene r. McDonough, 8 Peters, 308.

The authorities of Spain had power to make grants of the iiublic
domain in Florida in accordance with their own ideas of the merits of
the grantee, and the court can only consider the questions whether a
grant was made and what was its legal effect.

U. S.r. Hanson, 16 Peters, 196 ; U. S. v. Acosta, 1 Howard, 24.
24

CHAP. I.] EX-SOVEREIGN CANNOT GIVE TITLES. [§ 6a.

G-rants made bj- the Spanish authorities of lands in Louisiana, after
its cession to France, and before its cession by the latter to the United
States, are void.

U. S. V. Eeynes, 9 Howard, 1-27; Davis v. Concordia, id., 280.

Grants made by the Spanish authorities in territory which, upon the
subsequent settlement of a disputed boundary line, was determined to
belong to one of the- United States, are void.

Robinson v. Minor, 10 Howard, G27.

Grants made by the French authorities in Louisiana after the treaty
of Fontainebleau are void, unless continued possession laid a founda-
tion for presuming a confirmation by the authorities of Spain.
U. S. r. Pilletin, 13 Howard, 9.

Conditions which are attached to a grant by a prior sovereign, and
which are inconsistent witli the policy of the United States, will not be
enforced by the United States after the conquest of the territory con-
taining the land granted.

U. S. V. Vaca, 18 Howard, 556.

A grant of lands in California, while it was a Mexican province, made
by the chief of an administration, during an intestine war, when he was
in flight from the seat of Government, and his cause, soon afterwards
completely overthrown, in extremity, cannot be sustained, its validity
never having been acknowledged by the grantor's successors, and no
sanction ever having been given it by the United States.
U. S. V. Sutter, 21 Howard, 170. U. S. v. Rose, 23 id., 262.

The authority and jurisdiction of Mexican officials in California are,
to be regarded as having ceased on the 7th of July, 1846, the political
department of the Government of the United States having designated
that as the day when the conquest of California was completed and the
Mexican officials displaced.

U. S. I'. Yorba, 1 Wallace. 412. (See Stearns v. U. S., G id. ,'^89. U. S. v. Pico,
• 23 Howard, 321.)

The fact that Mexico declared through her commissioners who nego-
tiated the treaty of Guadalupe- Hidalgo that no grants of land were
issued by the Mexican governors of California after May 13, 1846, does
not attect grants actually made after that date by those governors, while
their authority and jurisdiction continued.
U. S. V. Yorba, 1 Wallace, 412.

By the conquest of California by the United States Mexican rule
was displaced, and with it the authority of Mexicans officials to alienate
the public domain. Until Congress provided a government for the
country it was in charge of military governors, who, with the aid of
subordinate officers, exercised municipal authority; but the power to

§ 6.] SOVEREIGNTY OVER LAND. [CHAP. I.

grant land or confirm titles was never vested in these military govern-
ors, nor in any person appointed by them.

Alexander v. Ronlet, 13 Wallace, 386. (See Mumford t'. Wardwell, 6 id., 423.)

" Suffice it to say, that the Government of the United States, ever
since the acquisition of Louisinia, in its legislative, executive, and
judicial departments, has always held in theory, and by repeated
acts of Congress and judicial decisions asserted in practice, that the
territory between the Perdido and the Iberville rightfully constituted a
portion of the i)rovince of Louisiana, as ceded by France to the United
States on the 30th of April, 1803; and that the treaty between His
Catholic Majesty and the United States, of the 22d February, 1819, has,
in no respect whatever, strengthened the claims of Spanish grantees
to lands embraced within these limits. This being the fact, it there-
fore follows, as a necessary consequence, that the grant by the Spanish
intendeut, Morales, of land within this territory, on the 24th March,
1804, had been made after the date of the Louisiana treaty, was with-
out authority and is void."

Mr. Buchanan, Sec. of State, to Mr. Calderon de la Barca, July 27, 1847, MSS.

Notes, Spain.
See infra, $ 148, as to treaty for annexation of Louisiana.

VII. COLONIES BECOMING INDEPENDENT RETAIN THEIR BOUNDARIES

AND OTHER RIGHTS.

§ 6.

" It has never been admitted by the United States that they acquired
anything by way of cession from Great Britain by that treatj' (of
1783). It has been viewed only as a' recognition of pre-existing rights,
and on that principle the. soil and sovereignty within their acknowl-
edged limits were as much theirs at the declaration of independence as
at this hour. By reference to the treaty it will be found that it amounts
to a simple recognition of the independence and the limits of the United
States, without any language purporting a cession or relinquishment
of right on the part of Great Britain. In the last article of the treaty
of Ghent will b6 found a provision respecting grants of land made in
the islands then in dispute between the two states, which affords an
illustration of this doctrine. Bj' that article a stipulation is made in
favor of grants before the war, but none for those which were made
during the war."

Johnson, J., Harcourt v. Gaillard, 12 Wheaton, .527.
Henderson r. Poindexter's Lessee, 12 Wheaton, 530.
As to fisheries, see infra, ^§ 302 Jf.

Under the treaty with Great Britain of 1783 the United States suc-
ceeded to all the rights in that part of old Canada which now forms the
26

CHAP. I.] INDEPENDENCE RETAINS OLD RIGHTS. [§ 6.

State of Michigan that existed in the King of France prior to its con-
quest from the French by the British in 17G0; and, among those rights,
to that of dealing with the seigniorial estate of lauds granted out as
seigniories by the said king, after a forfeiture had occurred for non-
fulfillment of the conditions of the fief.

U. S. V. Eepeutigny, 5 Wallace, 211.

As to effect of treaty of iudeijeudence see further, infra, § 150.

" The United States regard it as an established principle of public
law and of international right that when a» European colony in America
becomes independent it succeeds to the territorial limits of the colony
as it stood in the hands of the parent country."

Mr. Marcy, Sue. of State, to Mr. Dallas, July 26, 1856. MSS. Instruc, Great
Britain.

" Whether the treaty of 1783 was the origin of the territorial sovereign-
ty of the States of the American Union was discussed during the long
pending controversj' in relation the northeastern boundary of Maine.
The British secretary of state for foreign affairs, Lord Aberdeen, having
assumed, in his note of August 14, 1828, as the ground for claiming
exclusive possession till the award of the arbiter was rendered, that
the American title to the territory in dispute was to be deduced solely
from the treaty of peace, it was replied:

' Before the independence of the United States not only the territory
in dispute but the whole of the adjoining province and state was the
property of a common sovereign. * * * To use the words of a cel-
ebrated authority, ' When a nation takes possession of a distant country,
and settles a colony there, that country, though separated from the
principal establishment or mother country, naturally becomes a part
of the, state equally with its ancient possessions.'

" From the principle here established, that the political condition of
the people of the mother country, and of the colonies during their union,
is the same, the inference is unavoidable that when a division of the
emi)ire takes place the jirevious rights of the common sovereign, on
matters equally affecting both of the states, accrue as well to the one
as to the other of them. Mr. Lawrence to Lord Aberdeen, August 22,
1828.".

Lawrence's Wlieaton, ed. 1863, 37,977.

As to treaty of independence, see- infra, § 150.

Ah to northwestern boundary, see dispatch No. 287 of Mr. Bancroft, minister

to Prussia, and comments of Mr. Fisli, Secretary of State, to Mr. Bancroft,

November 27, 1871. MSS. Instruc, Prussia. Same to same, March 29, 1872,

id.
As to treaty with Great Britain as to boundary, see infi-a, § 150.
As to Alaslia boundary, see Mr. Bayard to Mr. Phelps, November 20, 1885.

MSS. Instruc, Great Britain.
As to treaty purchasing Alaska, see infra, ^ 159.
As to Russian claim to northwestern waters, see infra, §§ 32,159.
As to effect of treaties of annexation, see infra, fi§ 136, 140, _^.

5» 7.] SOVEREIGNTY OVER LAND. [CHAP. I.

VIII. TITLE OF DE FACTO GOVERNMENT TO OBEDIENCE.

§ 7.

The legislatures of the seceded States during the late civil war are
to be regarded, even by the Government of the United States, as exer-
cising de facto authority in all cases in which their domestic power was
absolute, Mud in which their action did not impair the supremacy of the
national uatliority or the rights ot citizens under the Constitution of
the United States.

Texas v. White, 7 Wall., 700; Horn v. Lockhart, 17 Wall., 570; Sprott v. U. S.,
>20 Wall., 459. (See U. S. v. Insurauce Company, 22 Wall., 99.)

Amelia Island, on the Florida coast, at the time belonging to Spain,
was seized and occupied by the United States in 1817, on the ground
that this was necessary to root out certain buccaneers who were there
congregated. This possession, it was held, could not be contested by
a third power, and could only be contested by Spain ; and hence the
seizure by the United States, for violation of its territorial law, of a
vessel of a third power within the territorial waters of Amelia Island
could not be contested b;y such third power.

Mr. Gallatin, minister at Paris, to Baron Pasquier, French minister of foreign

affairs, June 28, 1821: 2 Gallatin's Works, 187.
As to seizure of Amelia Island, see infra, (^ 50.

" When a colony is in revolt, and before its independence has been
acknowledged by the parent country, the colonial territory belongs, in
the sense of revolutionary right, to the former, and in that of legitimacy,
to the latter. It would be monstrous to contend that in such a contin-
gency the colonial territory is to be treated as derelict, and subject to
voluntary acquisition by any third nation. That idea is abhorrent to
all the notions of right which constitute the international code of Europe
and America.

" And yet the assumption that, pending a war of colonial revolution,
all territorial rights of both parties to the war become extinguished and
the colonial territory is oj^en to seizure by anybody, is the foundatiou of
most of the disputed pretensions of Great Britain in Central America."

Mr. Marcy, Sec. of State, to Mr. Dallas, July 26, 1856. MSS. I'astruc, Great

Britain.
As to effect of revolution on treaties, see infra, ^ 137.

" It is the duty of foreigners to avoid all interference under such cir-
cumstances (in cases of civil war), and to submit to the power which ex-
ercises jurisdiction over the places where they resort, and, while thus
acting, they have a right to claim protection, and also to be exempted
fi'om all vexatious interruption, when the ascendancy of the parties is
temporarily changed by the events of the contest. Undoubtedly the con-
sideraiions you urge respecting the true character of an armed opposi-
tion to a government are entitled to much weight. There may be local
28

CHAP. I.] DE FACTO GOVERNMENTS. [§ 7.

insurrections, armed opposition to the laws, which carry with them none
of the just consequences recognized by the law of nations as growing
out of a state of civil war. Xo fixed principle can be established upon
this subject, because much depends upon existing circumstances. Cases,
as they arise, must be determined by the facts which they present; and
the avowed objects of the parties, their relative strength, the progress
they respectively make, and the extent of the movement, as well as other
circumstances, must be taken into view."

Mr. Cass, Sec. of State, to Mr. Osma, May 22, ld58. MSS. Notes, Peru. Supra,
$ 203.

" While contending parties are carrying on a civil war those por-
tions of the country in the ijossession of either of them become sub-
ject to its jurisdiction, and the persons residing there owe to it tempo-
rary obedience. But when such possession is changed by the events
of the war and the other party expels its opponents, the occupation it
acquires carries with it legitimate authority, and the right to assume
and exercise the functions of the government. But it carries with it
no right, so far, at any rate, as foreigners are concerned, to give a retro-
active effect to its measures and expose them to penalties and punish-
ments and their property to forfeiture for acts which were lawful and-
api)roved by the existing government when done."

Ihid. That aliens r.re bound to local allegiance, see infra, $ 203.

"In the case of the controversy between the United States and
Peru, growing out of the capture and confiscation of two American
vessels for taking guano under the authority of a revolutionary gov-
ernment in temporary jjossession of some of the seaports and guano
deposits, and in contravention of the laws of Peru, it was maintained
by the administration of President Buchanan that the citizens or sub-
jects of a foreign nation may carry on commerce with the portions of
a country in the hands of either of the parties to a civil war, and
without awaiting any action on the part of their own Government, nor
in such case can they be subjected to capture or detention by the
other party, unless for a violation of neutral obligations."

Lawrence's W^heatou, ed. 1863, p. 575.

" I transmit a copy of a note of yesterday, addressed to this De-
partment by Sir Edward Thornton, Her Britannic Majesty's envoy
extraordinary and minister plenipotentiary accredited to this Gov-
ernment, requesting that you may be authorized to use youi good
offices towards preventing the exaction by the Mexican Government
of duties on goods imported by Messrs. Kelly, at Mazatlan, which
duties had previously been paid to insurgents there. You will take
that course accordingly. It is difficult to understand upon what
ground of equity or public law such duties can be claimed. The ob-
ligation of obedience to a government at a i^articular place in a coun-
try may be regarded as susj)euded, at least, when its authority is
usurped, and is due to the usurpers if they choose to exercise it. To
require a repayment of duties in such cases is tantamount to the ex-

§ 8.] SOVEREIGNTY OVER LAND. [CHAP. I.

action of a penalty on the misfortune, if it may be so called,* of re-
maining and carrying on business in a port where the authority of the
govermnent had been annulled. The pretension is analogous to that
upon which vessels have been captured and condemned upon a charge
of violating a blockade of a port set on foot by a proclamation only,
without force to carry it into effect.

" The principle that duties once paid in a part of the territory of the
country in possession of an enemy are not liable again to be paid
when the enemy is expelled or withdraws, was solemnly decided by
the Supreme Court of the United States in the case of Eice, 4th
Wheaton, page 246.

" Since the close of the civil war in this country suits have been
brought against importers for duties on merchandise paid to insur-
gent authorities. Those suits, however, have been discontinued, that
proceeding probably having been influenced by the judgment of the
Supreme Court adverted to."

Mr. Fish, Sec. of State, to Mr. -Nelspn, February 11, 1873. MSS. Instruc, Mex. ;
For. Eel., 1873.

The United States, as their rule of public law, recognize governments
de facto, and also governing persons de facto, without scrutiny of the
question of legitimacy of origin or accession.
7 Op., 582, Gushing (1855). (See infra, § 203.)

IX. LAW OF KATIOXS PAST OF LAW OF LAND.

§ 8.

The laws of the United States ought not, if it be avoidable, so to be
construed as to infract the coinraou principles and usages of nations,
or the general doctrines of international law.
Talbot V. Seaman, 1 Cranch, 1.

Even as to a municipal matter the lex fori should be so construed as to
conform to the law of nations unless the contrary be expressly prescribed.

The Amelia, 1 Cranch, 1; 4 Dall., 34; Murray v. The Channiug Betsy, 2
Cranch, (i4, 118 ; Little v. Barreme, 2 Cranch, 170.

An act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains, nor should it be
construed to violate neutfal rights or to affect neutral commerce fur-
ther than is warranted by the law of uatious, as understood in this
country.

Murray v. Charming Betsy, 2 Cranjch, 118.

The law of nations is part of the municipal law of Pennsyh ania.

Res. V. De Long Champs, 1 Dall., 111.

The law of nations is the great source from which we derive those
rules respecting belligerent and neutral rights svhich are recognized
30

CHAP. I.] LAW OF NATIONS PART OF LAW OF LAND. [§ 8.

by all civilized aud commercial states throughout Europe and America.
The law of nations is in part unwritten and in part conventional. To
ascertain that which is unwritten, we resort to the great principles of
reason and justice; but, as these principles will be differently under-
stood by different natious under different circumstances, we consider
them as being in some degree fixed and rendered stable by judicial
decisions. The decisions of the courts of every country, so far as they
are founded on a law common to every country, will be received, not
as authority, but with respect, and will be considered in adopting the
rule which is to prevail here.

Thirty hogsheads of sugar v. Boyle, 9 Cranch, 191.

The law of nations should be respected by the Federal cofirts as a
part of the law of the land.
The Nereide, 9 Cranch, 388.

The intercourse of the United States with foreign nations, and the
policy in regard to them, being placed by the Constitution in the hands
of the Federal Government, its decisions upon these subjects are, by
a universally acknowledged principle of international law, obligatory
upon every citizen of the Union.

Kenuett v. Chambers, 14 Howard, 38.

The maritime law (unless part of international law) is only so far op-
erative as law in any country as it is adopted by the laws and usages
of that country. The principles laid down on this subject in Norwich
Company v. Wright (13 Wall., 104), and in The Lottawana (21 «VZ., 558),
reasserted and affirmed.

The Scotland, 105 U. S., 24.

The law of nations, unlike foreign municii)al laws, does not have to
be proved as a fact.

The Scotia, 14 Wallace, 170

" The law of nations makes an integral part * * * of the laws
of the land."

Mr. Jefferson, Sec. of State, to Mr. Genet, June 5, 1793. MSS. Notes, For. Leg.
Wait's Am. St. Pap., 30. 1 Am. St. Pap., F. E., 150.

"Every nation, on being received, at her own request, into the circle
of civilized governments, must understand that she not only attains
rights of sovereignty and the dignity of national character, but that
she binds herself also to the strict and faithful observance of all those
principles, laws, and usages which have obtained currency among civ-
ilized states, and which have for their object the mitigation of the
miseries of war.

"No community can be allowed to enjoy the benefit of national char-
acter in modern times without submitting to all the duties which that
character imj)oses. A Christian x)eople who exercise sovereign power,

§ 9.] SOVEREIGNTY OVER LAND. [CHAP. 1.

who inak« treaties, maintain (lii)loniatic relations with other states,
and who should yet refuse to conduct their military operations accord-
ing to the usages uuiv'ersally observed by such states, would present
a character singularly inconsistent and anomalous.''

Mr. Webster, Sec. of State, to Mr Thompsou, April 15, 1842 ; MSS. Instruc, Mex-
ico ; also 6 Webster's Works, 437. See infra, § 347 /.

If a govenmeut " confesses itself unable or unwilling to conform
to those international obligations ^'hich must exist between established
governments of friendly states, it would thereby confess that it is not
entitled to be regarded or recognized as a sovereign and independent
power. "

Mr. Evarts, Sec. of State, to Mr. Foster, August 2, 1877, MSS. Instruc,
Mexico.

A judicial decree, contravening the law of nations, has no extraterri-
torial force.

Mr. Evarts, Sec. of State, to Mr. Brunetti, October 23, 1878; MSS. notes, Spain.
Mr. Bayard, Sec. of State, to Mr. McLaue, June 23, 1886 ; MSS. lust., France.
rSee infra, 6 329. )

The law of nations is considered as a part of the municipal law of
each state.

5 Op. (Appendix), 691, Lincoln, 1802.

International law is founded upon natural reason and justice, the
opinions of '' writers of known wisdom, and the practice of civilized
nations."

9 Op. 350, Black, 1859.

X. MUNICIPAL LAWS NOT EXTRATEBEITOEIAL.

§9.

Municipal variations of the law of nations have no extraterritorial
effect.

The Resolution, 2Dall., 1, (Fed. Ct. App. 1781). The Nereide, 9 Cranch, 388.
(See Henfield's case, Whart. St.Tr., 49-66.)

No foreign power can rightfully erect any court of judicature within
the United States, unless by force of a treaty. The admiralty jurisdic-
tion exercised by cc nsuls of France in the United States is not of right.
Glass V. The 8looi> Betsey, B Dallas, 6.

Whatever may be the municipal law under which a tribunal acts, if
it exercise a juii.sdiction which its sovereign is not allowed by the laws
of nations to confer, its decrees must be disregarded out of the domin-
ions of the sovereign.

hifra § 329 a; Rose r. Himely, 4 Cranch, 241. But see Hudson y.^Guestier, 6 id,
2.85.

As to territorial supremacy, see aupra, ^ 1, infra, § 11a. That municipal
neutrality laws are not extraterritorial, acGinfra, ^ 403.

CHAP. I.J LIMITS OF •MUNICIPAL LAWS. [§ 9.

A power to seize for a violation of the laws of tbe country is anattri
bute of sovereigntj', and is to be exercised within the limits which cir-
cumscribe the sovereign i)ower from which it is derived. And while
the rights of war may be exercised on the high seas, a seizure beyond
the limits of territorial jurisdiction for a breach of a municipal regula-
tion is not warranted by international law.
Eose V. Himely, 4 Crauch, 241. (Infra, $ 403.)

The municipal laws of one nation do not extend, in their operation,
beyond its own territory, except as regards its own citizens or subjects.

The Apollon, y Wheat., 3(52.

One country cannot execute the penal laws of another.

The Antelope, 10 Wheaton, 66.

As to jurisdiction of oftenses on shipboard, and in particular as to Jonathan
Eobbins' case, see infra, ^ 271a.

As a general proposition the laws of one country have in themselves
no extraterritorial force, and whatever force they are permitted to
have in foreign countries depends upon the comity of nations, regulated
by a sense of their own interests and public convenience.
Le Roy v. Crowninshield, 2 Mason, 151.

The presumptions indulged in support of judgments of superior courts
of general jurisdiction are limited to jurisdiction over persons within
their territorial limits ; persons who can be reached by their process.

Galpin v. Page, 18 Wallace, 350.

Under the statute law of France, which provides that a father-in-law
and mother-in-law must make allowance to a son-in-law who is in need,
so long as a child of the marriage is living, a son-in-law, a French
citizen, obtained a decree in the French courts for an allowance against
his father-in-law and mother-in-law who were American citizens, all
the parties then residing in France. The son-in-law .subsequently
brought an action of debt on the decree, in the courts of the United
States, to recover the amount of the decreed payment, which had not
been paid. It was ruled :

(1) That the suit could not be maintained. The laws of France,
upon which such decrees were made, are local in their nature and
operation. They are designed to regulate the domestic relations of
those who reside there, and to ])rotect the public against pauperism.
They have no extraterritorial significance, but must be executed upon
persons and property within their jurisdiction.

(2) Adjudications of the French tribunals under these laws are in
the nature of local police regulations, like orders of filiation and orders
made under local statutes to guard against pauperism, and are not of
extra-territorial operation, like judgments for claims founded upon
contracts or other private rights everywhere recognized.

De Brimout v. Penniiuan, 10 Blatchf., 436.

S. Mis. 162— YOL, I 3 33

§ 9.] SOVEREIGNTY oVeK LAND, [CHAP. I.

Municipal laws "have no controlling operation beyond the territorial
limits of the countries enacting them." Hence, in questions between
two independent nations, " neither has a right to appeal to its own
municipal laws for the rules to settle the matter in dispute which oc-
curred within the jurisdiction of a third independent power.''

Mr, Marcy, Sec. of State, to Mr. Hiilseman, Sept. 20, 1853. MSS. Notes, Aust.
(Koszta case). See infra, $ 198.

" It cannot be expected that any Government would go so far as to
yield to a pretension of a foreign power to revise and review the proceed-
ings of its courts under the claim of an international right to correct
errors therein, either in respect to the application of principles of law,
or the application of facts as evidence in cases where the citizens of
such foreign power have been convicted. It certainly could not be
expected that such a claim would be allowed before the party making
it had first presented a clear case prima facie of wilful denial of justice
or a deliberate perversion of judicial forms for the purpose of oppres-
sion."

Mr. Maxcy, Sec. of State, to Mr. Jackson, Apr. 6, 1855. MBS. Inst. Austria.
Infra, $241/.

" A certificate of discharge from a court in bankruptcy can have no
validity in a foreign country as against a foreign creditor representing
a debt contracted in a foreign country unless he has brought his claim
within the jurisdiction of the courts of the United States by proving it,
and thus putting himself in a position to share in the dividends (infra,
§ 329a). Whether, in case he does so prove it, such certificate will have
weight in a foreign country will depend upon the local laws in such
country, whose courts will undoubtedly act with due regard to the comity
of nations."

Mr. Fish, Sec. of State, to Mr. Eiger, October 21, 1869. MSS. Dom. Let. (See
Whart. Conf. of Laws, U 531, 804.)

" While there is no special statute authorizing the Executive to grant
permission to land a cable on the coast of the United States, neither is
there any statute prohibiting such action, and I find oH examination of
the records of this Department that in 1875 conditional authority was
given to land a French cable at Rye Beach, 1^. H., and that in 1879
permission was given to land a cable on Cape Cod. These precedents
seem to justify a similar concession to the Central and South American
Company, which there is the less hesitation in according, as it is a
corporation organized under the laws of a State of the United States,
and purposes to land its cable on the shores of the State which
created it.

"The authority of the executive branch of the Government to grant
this permission is exercised only in the absence of legislation by Con-
gress regulating the subject, and concessions of the privilege heretofore
34

CHAP. I.] LIMITS OF MUNICIPAL LAWS. [§ 9.

have been subject to such future action by Congress in the matter as it
may at any time take."

Mr. Davis, Acting Sec. of State, to Mr. Thompson, October 10, 1882. MSS. Dom.

Let. (See to the same effect, Mr. Frelinghuyseu, Sec. of State, to Messrs.

Mackay and Bennett, December 5, 1883, MSS. Dom. Let.)
As to international telegraph lines through Central America and along the

northern Pacific shores, see circular of Mr. Seward, Sec. of State, August

18, 1864. MSS. Instruct. Am. States.

" No sovereignty can extend its process beyond its own territorial
limits so as to subject either persons or property to its judicial decisions,
and every exertion of authority of this sort beyond its limits is a mere
nullity, and incapable of binding such persons or property in any other
tribunals."

Halleck Int. Law, cited by Mr. Frelinghuysen, Sec. of State, to Mr. Morgan,

May 17, 1884. MSS. Inst., Mexico; For. Eel,. x884.
See further Whart. Conf. of Laws, §$ 734 jf; infra, $ 406. As to nonubiquity of
prize court action, see injra, § 329a.

While, however, statutes, as a rule, have no extraterritorial effect by
their own vigor, it is otherwise when they are part of a system of inter-
antional law which is adopted as part of the law of the land. (See supra,
§ 8.) Nor is this incorporation of international law in the law of the
land confined merely to public law. It extends to what is called private
international law, that is, international law which affects the rights of
individuals. Thus, as will be seen, the form of marriage is determined
by the law of the place of solemnization {infra, § 261) ; personal status is
in some cases determined by the law of domicil (Whart. Conf. of Laws,
§ 101,^), while contracts as to their mode of solemnization are gov-
erned by the law of the place of solemnization, as to their interpretation
by the law of the place from which the parties drew their idioms, and
as to their performance by the law of the place of performance. Ibid.,
§393,#.

That statutory limitations as to piracy bind only municipally, see infra, $ 382.

That municipal expansions or restrictions of the law of nations have no extra-
territorial effect, see infra, $ 402 and 402o.

That prize courts when following merely municipal law, cease to be interna-
tionally authoritative, see infra, $ 369a.

Defective or erroneous municipal legislation, by which a sovereign
claims to be unable to perform his international obligations, is no de-
fense to a demand by another sovereign for redress for a violation of
international duty. This position was taken by Great Britain against
the United States in the McLeod case {infra, ^ 21); by the United States
against France in respect to French spoliations {infra, §§ 130, 318) ; by
the United States against Great Britain in respect to the Alabama and
cognate claims {infra, § 4()2a) ; and by the United States against Mex-
ico and other States, in denying their right to impose by statute restric-
tions or disabilities not sustainable in international law on citizens of
the United States {infra, §§ 15, 176a).

§ 10.] SOVEREIGNTY OVER LAND. [CHAP. I.

" Neither goveruuient" (France or the United States, the question aris-
ing at the time of the refusal of the French chamber of de])uties to
make appropriations to carry out the treaty for payment to the United
States of French spoliations) " has anything to do with the auxiliary
legislative measures necessary, on the part of the other state, to give
effect to the treaty. The nation is responsible to the government of
the other nation for its non-execution, whether the failure to fulfill it
proceeds from the omission of one or the other of the departments
of its government to perform its duty it respect to it. The omission
here is on the part of the legislature ; but it might have been on
the part of the judicial department — the court of cassation might have
refused to render some judgment necessary to give effect to the'treaty.
The King cannot comi)el the Chambers, neither can he compel the
courts ; but the nation is not the less responsible for the breach of faith
thus arising out of the discordant action of the international machinery
of its constitution."

Mr. Wheaton, Miuister at Copenhagen, to Mr. Butler, Attorney-General, Jan-
uary 20, 1835, adoi^ted in Lawrence's Wheaton (1863), 459 ; and quoted also
with approval in Meier on Abschluss von Staatsvertragen, Leipzig, 1874, p.
168.

XL DISTINCTIVE RULE AS TO TAXES.
§ 10.

For the purpose of taxation, some kinds of personal property may
have a situs independent of the domicil of the owner; e. g., property
which has a visible and tangible existence ; or public securities consist-
ing of State bonds and bonds of municipal bodies; but not personal
property, such as bonds and debts generally, which have no situs inde-
pendent of the domicil of the owner.

State tax on foreign-held bonds, 15 Wallace, 300.

For the purposes of taxation, a debt has its situs at the residence of
the creditor, and may be there taxed.

Kirtland v. Hotchkiss, 100 U. S., 491.

" So far as the question of taxation is concerned, the principles are
believed to be quite well understood which ought to govern the ques-
tion.

" That citizens of the United States who choose to reside in Cuba
must, in the absence of treaty provisions or other exemptions, bear their
just and honest share of such burdens, by way of taxation, as the needs
of good government and public protection require, needs no argument.

"The right of taxation is an attribute of sovereignty.

" The right is admitted but complaints are based on the fact that op-
portunity is taken under the cover of a right, to perpetrate wrong and
injustice. * * *

"It is difficult (for instance) to call it a rightful exercise of the sover-
eign power of taxation, to require an individual owner of an estate to
erect a fort, of a particular and specified description, on his estate, at his
36

CHAP. I.] TAXES: FEDERAL CONSTITUTION. [§11-

iiiclividiuil cost, or to require him to construct a particular line of tele-
graph; and when such things are done by an arbitrary order of a
local or a military officer, they have very much the appearance of some-
thing very different from what is generally recognized as taxation."

Mr. Fish, Secretary of State, to Mr. dishing, May 22, 1876, MSS. Instruc,
Spain. See infra, §$ 37,2:^0.

XII. DISTINCTIONS UNDER FEDERAL CONSTITUTION.

§11.

The several States which compose the Union, so far at least as regards
their municipal regulations, became entitled, from the time when they
declared themselves independent, to all the rights and powers of sover-
eign States ; and among those rights was that of the allegiance of their
citizens.

Mcllvaine v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Trustees, «fec., 3 Peters, 99.

In the Constitution of the United States the term State most fre-
quently expresses the combined idea of people, territorj"^, and govern-
ment. A State, in the ordinary sense of the Constitution, is a polit-
ical community of free citizens, occupying a territory of defined bound-
aries and organized under a government sanctioned and limited by
a written constitution, and established by the consent of the gov-
erned. It is the union of such States, under a common Constitution,
which forms the distinct and greater political unit which that Constitu-
tion designates as the United States, and makes of the people and States
which compose it one people and one country.
Texas v. White, 7 Wall., 700.

Sovereignty for the protection of rights and immunities created by
or dependent upon the Constitution rests with the United States.
U. S. V. Reese, 92 U. S., 214.

Sovereignty for the protection of the rights of life and personal liberty
within the resi^ective States rests with the States, subject to the quali-
fications of the Constitution.

U. S. V. Cruikshauk, 92 U. S., 542.

Correction or revision of the action of State courts is not within the
province of the Executive of the Federal Government, however much h.e
may decline to give executive efficiency to their judgments.

Mr. Seward to Mr. Van Limburg, Sept. 30, 1862 ; MSS. Notes, Netherlands.

The Secretary of State, as representing the Executive, is the sole au
thority to whom foreign sovereigns can appeal for redress for injuries
inflicted on their subjects within one of the States of the American
Union. {Lifra, §79.) But while such is the case, such sovereigns will
be informed by the Secretary of State that jn the United States, as in

§ 11a.] SOVEREIGNTY OVER LAND. [CHAP. I.

all governments where the judiciary and the executive have coordi
nate powers, appeals for redress in such cases must be made primarily
to the local judiciary, and that the Executive of the United States
can only be appealed to when there has been a failure of justice, after
the courts have been duly resorted to. {See infra, §§ 230, 244, 329a.)

Xni. TERRITORY, ASA RULE, INVIOLABLE.

(1) General Principles.

§ 11a.

No sovereign, according to modern international law, can exercise
the prerogatives of sovereignty in any dominions but his own.

Mr. Jefferson, Sec. of State, to Mr. Ternant, May 15, 1793. MSS. For Leg.
Notes; 1 Am. State Papers (F. R.), 147. See supra, $§ 1, 9.

"Congress, at its last session, passed laws which authorized the Presi-
dent to aid the colonization of persons of certain classes of African de-
rivation, with their consent, in some tropical country, first obtaining
the consent of the Government of such country to receive such settle-
ments and protect them in all the rights of freemen. The execution of
these laws was devolved by the President upon the honorable the Sec-
retary of the Interior. That officer is understood to have recognized
the honorable Mr. Pomeroy as an agent for persons belonging to the
specified classes, to aid and direct them in the choice of their locations
and establishing their settlements. The general instructions which
were given to him by the Secretary of the Interior expressly inhibited
Mr. Pomeroy from attempting to make such location and settlement in
any country whatever, without first having obtained the consent of the
Government of such country to protect the proposed settlement of such
persons there with all the rights and privileges of freemen.

"About the time when those instructions were in course of prepara-
tion, his excellency SeSor Antonio Jos6 de Yrisarri, minister plenipo-
tentiary of the Republics of Guatemala and Salvador near the United
States, gave notice to this Department that those two states were averse
to receiving any such settlements; and for that reason the instructions
of the Secretary of the Interior to Mr. Pomeroy were modified. He was
informed that the President accepted Mr. Yrisarri's communication as
a definitive declination of the two Governments which he represented
to receive and protect a colony of the class proposed in their respective
countries. Whereupon Mr. Pomeroy was expressly directed not to pro-
ceed with such colony to any part of the territories of either of the said
Republics of Guatemala and Salvador.

"In your note, which is now under consideration, you protest, in be-
half of the Republics of Costa Rica, Nicaragua, and Honduras, against
the introduction of any colony of the kind proposed within the territory
of either of those Republics. You also inform this Department that a
38

CHAP. I.] forp:ign recruiting forbidden. [§ 12.

portion of tlie region called Chiriqui, which is claimed by Mr. Ambrose
W. Thompson, and which he offers as a site for such a colony, lies un-
questionably within the territory of Costa Rica, while another portion
lies within the unquestioned territory of New Granada, and still a third
part is in dispute between the Government of Costa Eica and New
Granada; and you extend your protest so as to make it cover not only
the unquestioned territory of Costa Eica, but also that portion of Chiri-
qui which is claimed by Costa Eica.

" I have now to inform your excellency that the acts of Congress, under
which the colonization in question is proposed to be made, do not war-
rant the attempt to establish such a colony in any country without the
previous consent of the Government thereof, and that your protest is
accepted by the President as a denial of such consent on the part of
the three states you so worthily represent."

Mr. Seward, Sec. of State, to Mr. Molina, Sept. 24, 1862 ; MSS. Notes, Cent. Am.
Dip. Corr. 1862.

The United States Government cannot purchase a grant of land in,
or concession of right of way over, the territories of another nation, as
could an individual or private corporation, since, by the law of nations,
one Government cannot enter upon the territories of another, or claim
any right whatever therein.
9 Op., 286, Black (1859).

(2) Recruiting in Foreign State Forbidden.
§12.

"One other subject of discussion between the United States and
Great Britain has grown out of the attempt which the exigencies of
the war in which she is engaged with Eussia induced her to make, to
draw recruits from the United States.

"It is the traditional and settled policy of the United States to main-
tain impartial neutrality during the wars which from time to time occur
among the great powers of the world. Performing all the duties of
neutrality towards the respective belligerent states, we may reasonably
expect them not to interfere with our lawful enjoyment of its benefits.
Notwithstanding the existence of such hostilities, our citizens retain
the individual right to continue all their accustomed pursuits, by land
or by sea, at home or abroad, subject only to such restrictions in this
relation as the laws of war, the usage of nations, or special treaties,
may impose; and it is our sovereign right that our territory and juris-
diction shall not be invaded by either of the belligerent i)arties for the
transit of their armies, the operations of their fleets, the levy of troops
for their service, the fitting out of cruisers by or against either, or any
other act or incident of war. And these undeniable rights of neutrality,
individual and national, the United States will under no circumstances
surrender."

President Pierce's Third Annual McBsage, 1855.

§ 12.] SOVEREIGNTY OVER LAND. [CHAP. I.

"In authorizing a plan of recruitment, which was to be carried out
in part within our territory, the British Government seems to have for-
gotten that the United States had sovereign rights as well as municipal
laws which were entitled to its respect. For very obvious reasons the
officers employed by Her Majesty's Government in raising recruits from
the United States would, of course, be •cautioned to avoid exposing
themselves to the penalties prescribed by our laws, but the United
States had a right to expect something more than precautions to avoid
those penalties. They had a right to expect that the Government and
officers of Great Britain would regard the policy indicated by these
laws, and respect our sovereign rights as an independent and friendly
power."

Mr. Marcy, Sec. of State, to Mr. Crampton, September 5, 1855. MSS. Notes,
Great Britain.

" This Government does not contest Lord Clarendon's two proposi-
tions in respect to the sovereign rights of the United States — first, that
in the absence of municipal law Great Britain may enlist, hire, or engage
as soldiers within the British territory persons who have left the United
States for that purpose ; (this proposition is, however, to be understood
as not applying to persons who have been enticed away from this
country by tempting offers of reward, such as commissions in the
British army, high wages, liberal bounties, pensions, and portions of
the royal domain, urged on them while within the United States by
the officers and agents of Her Majesty's Government); and, secondly,
no foreign power has a right to enlist and organize and train men as
British soldiers within the United States. The right to do this Lord
Clarendon does not claim for his Government; and whether the British
officers have done so or not is, as he appears to understand the case,
the only question at issue, so far as international rights are involved,
between the two countries.

" In his view of the question as to the rights of territory, irrespective
of municipal law. Lord Clarendon is understood to maintain that Her
Majesty's Government may do anything within the United States short
of enlisting and organizing and training men as soldiers for the British
army with perfect respect to the sovereign rights of this country.

" This proposition is exactly the reverse of that maintained by this
Government, which holds that no foreign power whatever has the right
to do either of the specified acts without its consent. No foreign power
can, by its agents or officers, lawfully enter the territory of another to
enlist soldiers for its service or organize or train them therein, or even
entice persons away in order to be enlisted without express permis-
sion."

Mr. Marcy, Sec. of State, to Mr. Buchanan, December 28, 1855. MSS. Inst.,
Great Britain; aee infra, $§ 392, 395.

CHAP. I.J RECRUITING : PASSAGE OF TROOPS. [§ 13.

It is not lawful to enlist soldiers in foreign territory without the con-
sent of its Government.

7 Op., 367, Gushing, 1855.

The correspondence of the United States with Great Britain in 1856 relative to
recruiting in the United States will be found in British and Foreign State
Papers for 1857-8, vol. 48, 190 ff, comprising Mr. Crampton's disjjatches of
March 3, 1856, and of June 10, 1856, in his own defense. Lord Clarendon's
explanation of April 30, 1856, and Mr. Marcy's instructions to Mr. Dallas
of May 27, 1856.

Other portions of the correspondence are given in British and Foreign State
Papers for 1860-1, vol. 51 ; and in Senate Ex. Doc. No. 35, 34th Cong., Ist
sess.

That a neutral is bound to prevent such enlisting, see infra, $ 395.

The correspondence relative to the dismissal of Mr. Crampton, British minister
in the United States, for encouraging British recruiting in the United
States, is given infra, $ 84.

It is not, however, a breach of neutrality to permit subjects on their
own motion to go to a foreign land to enlist in the service of a bellig-
erent. [Infra, § 392.]

(3) Permission Requisite for thf Passage op Foreign Troops.

§13.

In September, 1790, General Washington having put the question to
Mr. Adams, Mr. Jefferson, and Mr. Hamilton, "What should be the
answer of the Executive of the United States to Lord Dorchester in
case he should apply for permission to march troops through the terri-
tory of said States, from Detroit to the Mississippi," Mr. Adams ad-
vised a refusal of such a request (8 J. Adams's Works, 497). Mr. Jef-
ferson was of the same opinion. Mr. Hamilton argued earnestly and
at length for the granting of the request, even though the object of
the movement of troops should be the attack on New Orleans and the
Spanish possessions on the Mississippi. [4 Hamilt. Works (ed. 1885), 20.]

Mr. Jefferson's opinion against the policy of permitting British troops to be
transported over the territory of the United States, from Detroit to the
Mississippi, is given 7 Jeff. Works, 508.

The right of the United States to send troops across the Isthmus
of Panama is guaranteed by the treaty with New Granada of 1846.

Mr. Marcy, Sec. of State, to Mr. Paredes, June 20, 1853 ; MSS. Notes Colomb. ;
same to same, Oct. 12, 1853.

No belligerent army has the right of passage through, or entry into,
neutral territory without the consent of its sovereign.

7 Op., 122, Gushing, 1855. Bee infra, $397.

"In January, 1862, the Secretary of State of the United States
transmitted an order to the marshal, and all other Federal officers in
Portland, directing that the agents of the British Government should
have all proper facilities for landing and conveying to Canada, or else-

§ 13.] SOVEREIGNTY OVER LAND. [CHAP. I.

where, troops and muiiitions of war of every kind, without exception.
The occasion of the order was the expected arrival of a steamer from
England, bound to Quebec and Montreal with troops.

*******

"'No foreign nation inimical to Great Britain is likely to complain of
the United States for extending such a comity to that power. If,
therefore, there be any danger to be apprehended from it, it must come
in the form of direct hostility on the part of the British Government
against the United States. The United States have not only studi-
ously practiced the most perfect justice in their intercourse with
Great Britain, but they have also cultivated on their part a spirit of
friendship towards her as a kindred nation, bound by the peculiar ties
of commerce. The Grand Trunk Eailroad, a British highway extended
through the territories of the United States to, perhaps, the finest sea-
port of our country, is a monument of their friendly disposition. The
reciprocity treaty, favoring the productions of British North America
in the markets of the United States is a similar monument of the same
wise and benevolent policy.' Mr. Seward to the governor of Maine,
January 17, 1862."

Lawrence's Wheaton, ed. 18G3, p. 195 ; see also 3 Lawrence, com. sur. droit,
int., 434.

In 1875 permission was granted to the governor of Canada by the
Government of the United States to transport " through its territory
certain supplies, designed for the use of three divisions of Canadian
mounted police force."

Mr, Fish, Sec. of State, to Sir E. Thornton, May 5, 1875. MSS. Notes, Great Brit.

In October, 1876, the President gave permission to Mexico "for the
landing at Brazos Santiago, in Texas, of a small body of the troops of
that Eepublic, supposed to be intended to aid in the defense of Mata-
moras," with the proviso that the stay be not unnecessarily long, and
that the Mexican Government be held liable for any injury inflicted by
the troops during their stay.

Mr. Fish, Sec. of State, to Mr. Cameron, Oct. 20, 1876. MSS. Dom. Let.

" On rare occasions the consent of a foreign government is asked,
through diplomatic channels, for the passage of small bodies of troops,
or for permission to do other acts which might otherwise be violation
of territory ; but in such cases, as the offense would be against the
sovereignty of the government only, permission at times is accorded.
It is seriously doubted, however, whether it is in the province of an
officer of the army, in command on a distant station, to permit or
sanction such violation. It is also extremely doubtful whether it is
in any aspect competent to assume to permit a foreign power to trans-
port persons in custody through the territory of the United States,
maintaining over them while in transitu any authority or power. In
such a case the rights of the individual are also involved."

Mr. Fish, Sec. of State, to Mr. Cameron, December 7, 1876. MSS. Dom. Let.
42

CHAP. I.] FOREIGN INTRUSION FORBIDDEN. [§ 14.

Permission was given in February, 1881, by the governor- general
of Canada for the passage of the " Spaulding Guards," of Buftalo,
armed and equipped, over the Canada Southern Eailway from Buffalo
to Detroit.

Mr. Hay, Asst. Sec. of State, to Mr. Sherman, February 24, 1881. MSS, Doni.
Let.

A permission to a foreign government to transport its troops over
the territory of the United States will be granted only in case of
peaceful transfer devoid of any military object affecting the peace of
any third state.

Mr. Bayard, Sec. of State, to Mr. Morgan, April 5, 1885. MSS. Instruc. Mex.
As to arrangement between the United States and Mexico as to the right of
troops to cross the border in pursuit of hostile Indians, see Mr. Freling-
huysen, Sec. of State, to Mr. Morgan, June 6, 1882. MSS. Instruc, Mex.
Mr. Bayard, Sec. of State, to Mr. Jackson, October 6, 1885, ib. (See also
infra, $§13,r0e.)
As to proposition to Mexico to allow the regular troops of both countries to
cross the border in pursuit of marauders, see Mr. Fish, Sec. of State, to
Mr. Foster, May 4, 1875. MSS. Instruc, Mex. Infra, ^ 18,50«.
That a neutral giving pririleges of this kind to one belligerent becomes liable
to the other belligerent, see infra, $ 397.

When the passage of troops is allowed, this bestows extraterrito-
riality on the troops so passing.

Schooner Exchange v. McFaddon; 7 Cranch, 116.

As will hereafter be seen, when belligerent troops fly to neutral ter-
ritory to escape a pursuing belligerent, they must lay down their arms.
They are then, when in neutral territory, protected by the law of na-
tions from their pursuers. ,

Infra, $ 398.

(4) Seizure of Person or Property by Foreign Prlncb Forbidden.

§14.

A seizure for the breach of the municipal laws of one nation cannot
be made within the territory of another.

The Apollon, 9 Wheaton, 362.

It is an offense against the law of nations for any persons, whether
citizens or foreigners, residing in the United States, to go into the ter-
ritory of Spain to recover their property by force or in any maimer
other than its laws permit.

1 Op., 68, Lee, 1797.

As to territorial waters, see infra $§ 27, 32.

So long as Denmark tolerates slavery in her dominions it is an inva-
sion of her sovereignty to take away from St. Croix by seduction, invi-
tation, connivance, ignorance, or mistake, slaves from the possession

§ 15.] SOVEREIGNTY OVER L,AND. [CHAP. I.

of Danish owners, and if avowed and* unredressed on our part this is a
just cause of war.

1 Op., 566. Wirt, 1822.

The attempted arrest of Koszta, in Turkey, by Austria, was treated
in the Department of State as a violation of international law.

Mr, Frelinghuysea, Sec. of State, to Mr. Randall, Margh 14, April 17,1884. MSS
Dom. Let. (See tn/ra, $M8, 198.)

But when an alleged criminal is brought within the jurisdiction of
the United States by irregular extradition process or by kidnapping,
this is a defense he cannot set up when tried for the oflense for which
the arrest was made. The wrong is for executive redress.

Whart. Cr.Pl. and Prac, § 27.

(5) And so of Foreign Jurisdiction of Crimes.

§ 15.

It is incompatible with the limits of the present work to give in
detail the rulings of our courts in reference to jurisdiction of crimes.
In another work they are given under the following heads :

Federal judiciary has no common law jurisdiction (Whart. Cr.

Law, § 253). '
Federal courts have statutory jurisdiction over —
Offenses against law of nations {id., § 258).
Offenses against federal sovereignty {id., § 259.)
Offenses against individuals on federal soil or ships {id., § 260).
Offenses against federal justice {id., § 262).
Conflict and concurrence of jurisdictions.
Offenses at sea cognizable in country of flag {id., 269).
Federal courts have jurisdiction of crimes on high seas out of

State jurisdiction {id., 270).
Sovereign has jurisdiction of sea within cannon-shot from shore
{id., 271).
Offenses by subjects abroad.
Subjects may be responsible to their own sovereign for offenses

abroad {id., 271).
Apportionment of this sovereignty between Federal and State

governments {id., 273).
Also over political offenses abroad {id.^ 274).
Political extraterritorial offenses by subjects are punishable

{id., 275).
Perjury and forgery before consular agents punishable at home

{id., 276).
Homicide by subjects abroad punishable in England {id., 277).
Liability of extraterritorial principal.

Extraterritorial principal mav be intraterritorially indictable

{id., 278).
Agent's act in such case imputable to principal {id., 279).
Doubts in cases where agent is independently liable {id., 280).
Offenses by aliens in country of arrest.
Aliens indictable in country of arrest by Roman law {id., 281).

CHAP. I.] CRIMES COMMITTED ABROAD. [§ 15.

So in English and American law {id.^ 282).

So as to Indians {id., 2S2a).

But not so as to belligerents {id., 283).
Offenses by aliens abroad.

Extraterritorial offenses against our rights may be intraterri-
torially indictable {id., 284).

Jurisdiction claimed in cases of perjury and forgery before con-
suls {id., 285).

Punishment in such cases {id., 286).
Offenses spreading over a plurality of jurisdictions.
Accessaries and co conspirators indictable in place of accessary-
ship or conspiracy and of performance {id., 287).
In continuous offenses each place of overt act has jurisdiction
{id., 288).

Adjustment of punishment in such cases {id., 289).

In larceny thief is liable wherever goods are taken {id., 291).

In homicide place of wound has jurisdiction, and by statute
place of death {id., 292).

Law of place of performance mav determine indictability {id.,
292a).

Sovereigns may have concurrent jurisdiction {id., 293).

Offenses against law of nations (id., §§ 1860, 1889, 1900).

"No act committed in one country, however criminal, according to
its laws, is criminal according to the laws of the other. Crimes, in a
legal sense, are local, and are so only because the acts constituting
them are declared to be so by the laws of the country where they are
perpetrated. Great Britain cannot by her laws make an act committed
within the jurisdiction of the United States criminal within her terri-
tories, however immoral of itself, and vice versa. The proposition is
too clear to require illustration or to be contested; but, if that be ad-
mitted, it must also be admitted that the criminality referred to in the
proviso is to be judged of by the laws of the place within whose juris-
diction the act was charged to have been perpetrated, and not where
the fugitive is found."

Mr. Calhoun, Sec. of State, to Mr. Everett, August 7, 1844. MSS. Inst.,
Great Britain.

"We hold that the criminal jurisdiction of a nation is limited to its
own dominions and to vessels under its flag on the high seas, and that
it cannot extend it to acts committed within the dominion of another
without violating its sovereignty and independence. Standing on this
well-established and unquestioned principle, we cannot permit Great
Britain or any other nation, be its object or motive what it may, to in-
fringe our sovereignty and independence by extending its criminal
jurisdiction to acts committed within the limits of the United States,
be they perpetrated by whom they may. All therein are subject to
their jurisdiction, entitled to their protection, and amenable exclusively
to their laws."

Mr, Calhoun, Sec. of State, to Mr. Everett, September 25, 1844. MSS. Inst.,
Great Britain.

§ 15.] SOVEREIGNTY OVER LAND. [CHAP. I.

" By the law of nations every independent state possesses the exclu-
sive right of police over all persons within its jurisdiction, whether upon
its soil or in its vessels upon the ocean, and this national prerogative
can only be interfered with in cases where acts of piracy are committed,
which, by the j^ublic law of the world, are cognizable by any power
seiziug the vessel, thus excluded from the common rights of the ocean."

Mr. Cass, Sec. of State, to Mr. Dallas, Feb. 23, 1859. MSS. Instruc, Great
Britain.

" Eeferring to the correspondence which has taken place concerning
the case of Peter Martin, held in custody in British Columbia, and par-
ticularly to my notes of the 2d of November and the 6th of December
last, I have now the honor to inform you that a dispatch has been
received from the consul of the United States at Victoria, dated De-
cember 20, stating that Martin had been brought to trial for the assault
charged against him, in a court of assize held at Victoria, on the 16th
December ultimo, before the Hon. P. P. Crease, a justice of the supreme
court of the province, and had been found guilty and sentenced to one
year and nine months' imprisonment at hard labor, to take effect after
the expiration of the term of imprisonment of fifteen months to which
he was sentenced in September last.

" The consul, who was present at the trial, states that two witnesses,
who were on the spot at the happening of the occurrence, testified that
the assault occurred in what is considered to be Alaska territory, one lo-
cating the point near the Stickine Eiver, eight or ten miles from its mouth,
the other at a distance of some ten or twenty miles from its mouth, and
that the judge, in charging the jury, referred at some length to the point
of jurisdiction and to the fact that a question had been raised by this
Government concerning the right of a court in the province to try the
prisoner for an offense committed in Alaska and to correspondence
between the two Governments, but stated to the jury that he would
entirely disembarrass them on that point by saying that no evidence
had been produced or could be produced to show that the offense for
which the prisoner was on trial was really committed in Alaska, as the
boundary between the two countries on the Stickine Eiver remained
undetermined, and no line of demarkation existed showing how far up
that river American territory actually extends, whether it was five miles,
ten miles, or thirty miles ; and that, under these circumstances, the court
had jurisdiction or concurrent jurisdiction, and the proceedings in try-
ing the prisoner were just and proper.

" In the note originally addressed to you, under date of November 2,
it was suggested that if it appeared that the assault was committed
within the territory of the United States, Martin could not properly
be tried for the offense with which he was charged, and that he should
be set at liberty ; and I had tlie honor to request that you would call
the attention of Her Majesty's proper authorities to the case, that an
examination of the facts might be made before the ease was disposed of.
46

CHAP. I.] CRIMES COMMITTED ABROAD. [§ 15.

"The facts were laid before yon, and while no unnecessary prominence
was gfven to the violation of the sovereignty of the United States
which had taken place, it was confidently hoped that before Martin
was placed on trial for the new charge, or before any proceedings had
been taken to continue his imijrisonment on the former one, the facts
would have been carefully examined by the colonial authorities and a
conclusion reached as to what course should propeHy be taken, in view
of the rights of Martin and of the sovereignty of the United States,
which it was stated had been invaded, and it is a matter of regret that
under the circumstances the court, with apparent knowledge of the
facts, should have proceeded with the trial and have sentenced the
prisoner, and assumed to decide questions having a serious bearing on
the rights and jurisdiction of the two countries. Moreover, the posi-
tion assumed by the learned judge who presided at the trial, if rightly
reported, seems to be such as I feel quite confident will not be sus-
tained by Her Majesty's Government.

"The absence of a line defined and marked on the surface of the
earth as that of the limit or boundary between two countries cannot
confer upon either a jurisdiction beyond the point where such line
should in fact be. That is the boundary which the treaty makes the
boundary. Surveys make it certain and patent, but do not alter rights
or change rightful jurisdiction.

" It may be inconvenient or difficult in a particular case to ascertain
whether the spot on which some occurrence happened is or is not be-
yond the boundary line; but this is simply a question of fact, upon
the decision of which the right to entertain jurisdiction must depend.

" I have the honor, therefore, to ask again your attention to the sub-
ject and to remark that if, as appears admittedly to be the fact, the
colonial officers in transporting Martin from the place at which he was
convicted to his place of imprisonment, via the Stickine Eiver, did
conduct him within and through what is the unquestioned territory of
the United States, a violation of the sovereignty of the United States
has been committed, and the recapture and removal of the prisoner
from the jurisdiction of the United States to British soil was an illegal,
violent, and forcible act, which cannot justify the subsequent proceed-
ings whereby he has been, is, or may be, restrained of his liberty.

" I have, therefore, to express the hope that if Her JMajesty's authori-
ties find the fact to be as it is represented, that Martin was conducted
by the officers having him in custody into and through the Territory
of Alaska, being part of and within the jurisdiction and sovereignty of
the United States, he be set at liberty.

"I must not allow this question to pass without entering an explicit
dissent from the doctrine which seems to be advanced by the learned
judge who presided at the trial of Martin, that jurisdiction or concur-
rent jurisdiction vests in Her Majesty's colonial authorities or courts
over offenses committed.within any part of the Territory of Alaska, even

§ 15.] SOVEREIGNTY OVER LAND. [CHAP. I.

though so near to the treaty-line that uncertainty or doubt may exist
on which side of such line the offense is committed. It cannot^I think,
be necessary to argue this point, or to do more than record this dissent
and denial of a doctrine which, I have no doubt, Her Majesty's Govern-
ment agrees with me in repudiating."

Mr. Fish, Sec. of State, to Sir Edward Thornton, January 10, 1877; MSS. Notes,
Great Brit.; For. Rel., 1877. (See, for same correspondence, Brit, and For.
State Papers, 1876-7, vol. 68.)

*' On July 22, 1886, the telegram of Mr. Jackson, minister at Mexico,
dated July 21, 1886, was received here, stating the refusal of the Mex-
ican Government to accede to the telegraphic demand of the under-
signed for Cutting's release, the substance of which telegram is ap-
pended. On the same day a summary of the reasons for so declining
was asked for by telegraph, and on the same night a reply from Mr.
Jackson was received, giving a summary of the Mexican reasons. The
substance of this telegraphic summary is annexed, and the full text of
Mr. Mariscal's refusal is found among the accompaniments to a later
dispatch from Mr. Jackson— No. 272, of July 22, 1886.

"On July 26, 1886, Consul Brigham telegraphed to this Department
that the governor of Chihuahua was pushing the trial of Cutting, who
ignored the proceedings ; copy of which telegram is appended.

"On July 27, 1886, the instruction of the undersigned, numbered 228,
was mailed to Mr. Jackson ; copy thereof is annexed.

"The last communication from Minister Jackson on the subject, being
his dispatch No. 272, of July 22, 1886, hereinbefore referred to, was re-
ceived at this Department on the 31st ultimo. It conveys the text of
the correspondence had by him with the Mexican secretary for foreign
affairs, in which Cutting's release was demanded and refused.

"In the interim since July 27, 1886, the undersigned has had several
personal interviews with Mr. Matias Komero, the Mexican minister at this
capital, whose desire for a satisfactory adjustment of this case has been
manifested, but from whom the undersigned has procured no other in-
formation than is contained in the correspondence herein recited.

"A copy of article 186 of the Mexican code, which was handed to the
undersigned by Mr. Romero in support of the claim of Mexico to take
cognizance of crimes of which Mexicans were the subject in foreign coun-
tries, is herewith appended.

"This conflict of laws is even' more profound than the literal differ-
ence of corresponding statutes, for it affects the underlying principles
of security to personal liberty and freedom of speech or expression which
are among the main objects sought to be secured by our frame- work of
Government.

"The present case may constitute a precedent fraught with the most
serious results.

"The alleged offense may be— and undoubtedly in the present case
48

CHAP. I.] CRIMES COMMITTED ABROAD. [§ 15.

is — within the United States held to be a misdemeanor, not of high
grade ; but in Mexico may be associated with penal results of the grav-
est character. An act may be created by a Mexican statute an offense
of high grade, which in the United States would not be punishable in
any degree. The safety of our citizens and all others lawfully within
our jurisdiction would be greatly impaired, if not wholly destroyed,
by admitting the j)ower of a foreign state to define offenses and apply
penalties to acts committed within the jurisdiction of the United
States.

" The United States and the States composing this Union contain the
only forum for the trial of offenses against their laws, and to concede
the jurisdiction of Mexico over Cutting's case, as it is stated in Consul
Brigham's report, would be to substitute the jurisdiction and laws of
Mexico for those of the United States over offenses committed solely
within the United States by a citizen of the United States.

" The offense alleged is the publication in Texas, by a citizen of the
United States, of an article deemed libelous and criminal in Mexico.
No allegation of its circulation in Mexico by Mr. Cutting is made, and
indeed no such circulation was practicable or even possible, because
the arrest was summarily made on the same day of the publication in
the English language in Texas, on the coming of the alleged writer or
publisher into Mexico. And the Mexican correspondence accompany-
ing Mr. Mariscal's refusal to release Cutting, found in the accompani-
ments to Minister Jackson's dispatch, Ko. 272, of July 22, 1886, shows
that the 186th article of the Mexican code is the ground of the jurisdic-
tional claim.

"Under this pretension, it is obvious that any editor or publisher of
any newspaper article within the limits and jurisdiction of the United
States could be arrested and punished in Mexico if the same were
deemed objectionable to the officials of that country, after the Mexican
methods of administering justice, should he be found within those bor-
ders.

"Aside from the claim of extraterritorial power, thus put forth for the
laws of Mexico and extending their jurisdiction over alleged offenses
admittedly charged to have been committed within the borders of the
United States, are to be considered the arbitrary and oppressive pro-
ceedings which, as measured by the constitutional standard of the
United States, destroy the substance of judicial trial and procedure, to
which Mr. Cutting has been subjected."

Mr. Bayard, Sec. of State, Report to the President in Cutting's case, Ang. 2,
1886. MSS. Report book: Sen, Ex. Doc. No. 224, 49 Cong., 1 Sess. See
further as to Cutting's case, ivfra, $ 189.

The courts of the United States do not execute the penal laws of
another country.

2 Op., 365, Berrieu, 1830; see Whart. Ccnf. of Laws, $ 4.

S, Mis. 1G2— VOL. I 4 *^

§§16, 17, 17a.] SOVEREIGNTY OVER LAND. [CHAP. I.

(6) Foreign Sending over of Paupers anv Criminals Forbidden.

§16.

The transport of paupers from Cuba to the United States is in viola-
tion of United States laws and of international comity.

Mr. Fish, Sec. of State, to Mr. Bernabd, May 16, 1872 ; MSS. Notes, Spain,

As to deportation of criminals, paupers, and insane persons from Europe, by the

local authorities there, see President's message, February 28, 1881. (S. Ex.

Doc. 62, Forty-sixth Congress, third session, 162.)

The act of Congress of 1862, authorising the colonization of certain
classes of persons of African derivation in tropical countries was condi-
tioned on the assent of the country in which such colonisation was pro-
posed.

Mr. Seward, Sec. of State, to Mr. Molina, Sept. 24, 1862 ; MSS. Notes, Cent.

Am. ; Dip. Cor. 1862 ; aujyra § 11a.
As to the right of non-reception or expulsion of such persons, see infra, $ 206.

XIV. EXCEPTION AS TO NECESSITY.

§17.

As will be seen more fully hereafter, intrusion on the territory or
territorial waters of a foreign state is excusable when necessary for
self-protection in matters of vital importance, and when no other mode
of relief is attainable.

Infra, $$ 38, 50.

XV. EXCEPTION AS TO FOREIGN SOVEREIGNS, FOREIGN MINISTERS,
AND FOREIGN TROOPS.

§ 17fl.

"The perfect equality and absolute independence of sovereigns, and
this common interest impelling them to mutual intercourse and an
interchange of good offices with each other, have given rise to a class
of cases in which every sovereign is understood to waive the exercise
of a part of that complete, exclusive territorial jurisdiction which has
been stated to be tlie attribute ot every nation.

" First. One of these is admitted to be the exemption of the person of
the sovereign from arrest or detention within a foreign territory. * * *

" Second. A second case, st^diug in the same principles with the
first, is the immunity which all civilized nations allow to foreign min-
isters. * ♦ *

" Third. A third case, in which a sovereign is understood to cede a
portion of his territorial jurisdiction, is where he allows the troops of a
foreign prince to pass through his dominions."

Marshall, C. J., Schooner Exchange v. McFaddon, 7 Cranch, 136.
As to passage of troops, see supra, 9 13.
As to immunities of foreign ministers, see infra, $ 92 ff.
As to immunities of national ships, see infra, § 36.
50

CHAP. I.] BORDER INDIANS. [§ 176, 18.

XVI. EXCEPTrON AS TO UNCIVILIZED LANDS.
§ 176.

lu certain uncivilized or semi-civilized lands there is by force of treaty
the right granted to the United States to establish a local consular
judiciary to adjudicate questions in which citizens of the United States
are concerned. {Infra, § 125.) The right, also, has been assumed to
arrest in such lands fugitives from justice, or offenders against the
Government of the United States.

See Mr. Seward, Sec. of State, to Mr. McMath, April 28, 1862 ; MSS. Inst. Bar-
bary States ; Dip. Corr. , 1862. (See infra, $ 268; Whart. Conf. of Laws, $ 15. )

XVII. DUTY OF SOVEBEia^ TO RESTRAIN AGENCIES LIKELY TO IN-
JURE ANOTHER COUNTRY.

(1) Predatory Indians.

§ 18.

The right to pursue Indians across the border is discussed infra, $ 50.
" It is apprehended that the Mexican Government is not well aware
that although for a heavy pecuniary consideration it has released the
United States from the obligations in respect to predatory incursions
of Indiaus from this country into Mexico, the obligations of that Gov-
ernment in respect to similar marauders from that country into the
United States are entire, as provided for both by public law and by
treaty. The duty of that Government, therefore, at least to aid in
restraining its savages from depredations upon us, seems to be clear.
If this duty shall continue to be neglected we may be compelled in self-
defense to disregard the boundary in seeking for and punishing those
bandits."

Mr. Evarts, Sec. of State, to Mr. Foster, May 28, 1877. MSS. Inst., Mexico.
(See Mr. Fish, Sec. of State, to Mr. Nelson, June 26, 1871 ; MSS. Inst., Mex.,
For. Rel., 1871.)

"Referring to the correspondence which has been exchanged between
us in relation to the movements of the lately hostile Indians under the
lead of Sitting Bull, I have now the honor to bring to your attention
the substance of recent information received through the responsible
agents of the Department of the Interior, and to invite earnest' con-
sideration of the important points thereby suggested.

" This Government has been informed that companies of hostile In-
dians from Sitting Bull's camp have been and are scattered about, in
groups of lodges of varying numbers, throughout the entire northern
part of the Indian reservation having Fort Peck, on the Poplar River,
in Montana Territory, for its headquarters and agency. The peaceable
resident Indians of the reservation have daily come into the agency

§ 18.] SOVEREIGNTY OVER LAND. [CHAP. I.

with bitter complaints of the encroachments of Sitting Bull's men on
their special hunting grounds. They say that they find Uncapapas
from Sitting Bull's camp everywhere, driving and scattering the buifalo
and other game, and stealing their horses and running them over the
boundary line, thus in every way diminishing the ability and opportu-
nity of the agency Indians to maintain themselves. There is every
reason to believe that Sitting Bull himself was, so late as the 19th ul-
timo, within the territory of the United States, and had been camped
south of the boundary line since February last, and that practically all
his Indians had crossed to the southward of our northern boundary,
there being, as they claimed, no game for their subsistence on the Can-
adian side. This state of things naturally gives rise to disquietude,
notwithstanding the later information communicated to me by you in a
recent conference, that Sitting Bull and his chief lodges of warriors
were at last advices again on British territory.

"It is true that these wandering movements of an irreconcilable and
declaredly unfriendly Indian force from one side to the other of the
frontier, do not indicate any determinate purpose, or any disposition
even, on their part to abandon a residence under British protection, or
to renew the state of warfare with the Government of the United
States, whose active hostilities were only arrested bj" the refuge sought
and afforded on the soil of a neighboring state. Yet the situation now
existing on both sides of the border cannot but be regarded as one
requiring the most urgent and careful attention of both Governments,
lest by uncertainty as to the precise scope and definition of their obli-
gations towards each other, and indecision in their treatment of the
Indians domiciled within their jurisdiction, undue and unnecessary
difiSiculties may grow out of the present attitude of these tribes which
have, in the most formal manner possible to their savage state, re-
nounced their rights in the one country and rejected terms of security,
subsistence, and peace, to seek and receive asylum and residence in
the other.

" Should these erratic movements continue, this Government may at
any moment be brought face to face with the necessity of suppressing
the marauding operations of the hostile Indians under Sitting Bull's
lead, or even of resorting to active military operations to repel open
attacks upon the lives and property of its own people.

" It has, as it conceives, a perfect right to regard as a menace to
domestic peace and tranquillity the presence within its borders of a
warlike body of disaffected Indians, who have explicitly defied its
jurisdiction and by their own act embraced the protection of another
power. It may be that, in the interest of the security and well being
of both friendly Indians and white natives in the border- land, this
Government may feel constrained to enforce submission upon those
who. after openly denying its laws and power, and withdrawing them-

CHAP. 1.] BORDER INDIANS. [^ 18.

selves therefrom, may return within its jurisdiction, with or without
apparent hostile intent. Should this Governmeut decide to com])el a
submission of any of these Indians appearing on the southern side of
the frontier line, it would look upon a new recourse for asylum across
the line as calling for prompt and efficient action by the British Gov-
ernment to repulse them, or to disarm, disable, and sequestrate them
under a due responsibility for them as a component part of the terri-
torial population of the British- American dominion.

'' The importance of a distinct understanding on this point is ap-
parent. It is impossible to give countenance to any line of argument
or assumption by which these savages may quit and resume allegi-
ance and protection at will, by the mere circumstance of passing to
the one side or the other of a conventional line traced through the
wilderness. Before the era of hostilities began they were undoubt-
edly subject to the jurisdiction of the United States as much as the
land they then occupied, and even though their migrations in peace-
able search of food might, at times, carry them temporarily aci'oss the
frontier, they were, therefore, none the less a part of the population of
the United States, and alien to British rule. But when hostilities be-
gan, and the armed force of the United States was summoned to en-
force their submission, they sought and received asylum and protec-
tion* across the border. The significance of their acts of submission to
British protection, as they themselves understood and intended them,
admits of no doubt as to the extent of their intention to assume the
character of inhabitants of British domain, and their belief that they
had done so ; and no act of Her Majesty's authorities in the North
American possessions of Great Britain has looked toward denial of
this rudely asserted right to British protection, and still less toward
enforcement upon them of submission to the authority of the United
States, or of subjecting them to the treatment usually observed to-
ward revolted aliens on the territory of a friendly power.

" In this aspect of their relations to the British Government, this
Government conceives that it is bound now to regard the Indians of
Sitting Bull's command as British Indians. Should they therefore
make incursions of a hostile character, and should their movements
threaten the property, the domain, or the means of subsistence of the
friendly Indian tribes of the United States dwelling peaceably on their
assigned reservations, or should active military operations on the part
of the United States against them become for any cause inevitable, I
beg to call the attention of Her Majesty's Government to the gravity
of the situation which may thus be produced, and to express a confident
hope that Her Majesty's Government will recognize the importance of
being prepared on the frontier with a sufficient force either to com-
pel their surrender to our forces as prisoners of war, or to disarm and
disable them from further hostilities, and subject them to such con-

§ 18.] SOVEREIGNTY OVER LAND. [CHAP. I.

straints of surveillance and subjection as will preclude any further dis
turbance of the peace on the frontier."

Mr. Evurts, Sec. of State, to Sir E. Thornton, May 27. 1879. MSS. Notes, Gr.
Brit. ; For. Rel., 1879.

It is the duty of the British Government to take such supervision of
belligerent Indians as may prevent them from using British territory
for purposes hostile to the United States.

Mr. Evarts, Sec. of State, to Sir E. Thornton, Feb. 5, 1881 ; MSS. Notes, Gt. Brit. ;
Mr. Blaine to Sir E. Thornton, May 26, 1881 ; Mr. Blaine to Mr. Drummond,
Aug. 25, 1881.

" No one can realize more than I the delicacy of relationship between
two countries like ours, each of which is compelled to maintain control
over savage tribes on its border ; and the record of our correspondence
for years past has shown how often the patience and forbearance of
each Government has been tried by the hostile and predatory acts com-
mitted by those savages on both sides of the frontier.

"I observe that your note of the 20th, following the intimation of the
memorandum of the Chihuahua representatives, suggests that a special
treaty be concluded by which the United States would guarantee to
disarm its Indians, and to endeavor to prevent them from disposing,
within the United States, of booty taken in Mexico. My impressions
are that stringent provisions in each Eepublic rendering it as far as
possible iinpracticable for the Indians to dispose of their booty in the
territory of the other would be a salutary measure. The treaty rela-
tions between the two Governments need to be considered in the
broadest and most liberal spirit, and the consular and commercial con-
ventions which heretofore existed between the two Governments pro-
tecting the rights of American citizens in Mexico restored.

''You will, of course, see that while we are without a convention
defining consular privileges and without any agreement fixing the rights
of American citizens and capital in Mexico, the relations of the two
t'ountries are more or less exposed to unforeseen contingencies.

" Believing, as I do, that a proper exercise of vigilance and control
over the hostile Indians on both sides of the frontier is very necessary
to the interests of the two countries, I will be ready at any time to co-
operate with you in agreeing upon measures to eflect that end."

Mr. Frelinghuysen, Sec. of State, to Mr. Romero, April 9, 1883 ; MSS. Notes,
Mex., For. Eel., 1883 ; see also same to same, April 10, 1883, id.

" I have the honor to apprise you of the receipt of a letter of the Cth
instant from Hon. H. M. Teller, Secretary of the Interior, covering a
report made to him by Mr. H. Price, Commissioner of Indian Affairs,
touching the alleged recent invasion of the Mexican State of Sonora by
Apache Indian from the San Carlos Reservation in Arizona Territory.

CHAP. I.] BOEDER INDIANS. [§ 18.

This complaint of the Mexican Government was based upon certain
allegations of the Mexican consul at Tombstone, founded mainly upon
newspaper reports, and formed the subject of your note to me of the
22d ultimo.

" Mr. Price's information is obtained from persons who have a personal
supervision of the San Carlos Indians, and is to the effect that none of
them have recently left the reservation. He states that frequent reports
made to that ofiQce by agents at San Carlos, and which are believed to
be perfectly trustworthy, show that the Apaches there have been care-
fully watched, and that all, without exception, are peaceable, well dis-
posed, and manifest not the least sign of dissatisfaction, but that, on
the contrary, their leaders and most influential men express a desire to
fight the renegades from the reservations. Mention is also made of a
recent dispatch to the Department of the Interior from General Crook,
in command of the Department of Arizona, in which it is stated that
the Indians who have committed the depredations complained of in
Mexico are a small band known as Chiricahua Apaches on their way
back from Old Mexico, where they have been living for more than a
year past. These Indians are understood to be a troublesome lot, and
General Crook, it is stated, promises to do all that he can to extermi-
nate them. That officer's dispatch also alleges that the agency Indians
are behaving well, not one having left the San Carlos Reservation, and
that their assistance can be relied upon in case of the return of the
Chiricahuas.

" It will be perceived that these statements not only confirm and
strengthen those contained in my note to you of the 10th instant upon
the same subject, but demonstrate that the San Carlos Indians should
not be held accountable for any outrages which have been recently com-
mitted in Mexico as alleged. Neither is it thought that the Mexican
Government can now question the means instituted by the United States
to preserve peace among those Indians or its sincerity in restraining
and keeping them within proper bounds. Concerning the Chiricahua
Apaches, it is not doubted that they, in connection with renegade In-
dians of like character belonging to Mexico, have been operating with
more or less success on both sides of the border, to the injury of life, per-
son, and property of Americans and Mexicans, citizens alike ; or that
the extermination or subjugation of those Indians would do much to
restore a degree of peace and security perhaps not now enjoyed upon
the border of either country. The Mexican Government may confidently
rely upon the adoption by the United States of whatever measures
may be necessary or possible to rid its citizens of these renegade Chir-
icahuas should they reappear upon our territory, or the authorities of
this Government will gladly act in harmony with those of the Govern-
ment of Mexico in endeavoring to successfully control a common enemy

§ 19.] SOVEREIGNTY OVER LAND. [CHAP. I.

whose predatory raids are a constant source of disquiet to the inhabit-
ants along the borders."

Mr. Frelinghuysen, Sec. of State, to Mr. Romero, April 16, 1883. MSS. Notes,
Mex., For. Rel., 1883.

Mr. Seward's report of Jan. 29, 1864, as to the correspondence with the axithor-
ities of Great Britain in relation to the proposed pursuit of Indians into the
Hudson Bay territories, is given in Senate Ex. Doc. No. 13, 38th Cong., 1st

8688.

See House Ex. Doc. No. 2u7, 43d Cong., Ist sess ; House Rep. No. 343, 44th
Cong., let sess. ; House Mis. Doc. No. 37, same sess.

On October 5, 1885, Mr. Jackson, minister to Mexico, was instructed
to renew the extension for two years of the agreement between the
United States and Mexico for the reciprocal crossing the border of
troops when in pursuit of Indian marauders.

See Mr. Bayard, Sec. of State, to Mr. Jackson, Oct. 5, 6, 1885. MSS. Inst., Mex.

By a dispatch dated October 17, 1885, Mr. Jackson informed the De-
partment that the above agreement had been extended to November 1,
1886.

(2) Othkk Marauders.

§ 19.

The right to pursue marauders across the border is discussed, supra, $ 18 ; infra, $ 50.

" The accountability of the Mexican Government for the losses sus-
tained by citizens of the United States from the robbery and exactions
committed at Guaymas, in May last, by the armed force under the com-
mand of Fortino Viscaino, seems to be unquestionable. That person
was a subordinate of Placido Vega, as appears by the orders of the lat-
ter to him, dated at Teacapau the 18th of May. Those orders directed
Viscaino to proceed in the vessel (meaning the Forward) and perpe-
trate the very acts complained of. The orders were fulfilled. It is
true that Mr. Sisson, the United States consular agent at Mazatlan, in
his letter to you of the 13th of June, represents that since the evacua-
tion of Mexico by the French the Government of that Republic had
had no other authority in the canton of Tepic, where the expedition of
the Forward was organized and whence it proceeded, than that con-
nived at by one Manuel Lozada, of whom Placido Vega is supposed to
have been an instrument. Mr. Sisson, however, acknowledges that the
General Government had appointed a collector and other officers in
that quarter, but adds that they are creatures of Lozada. He also says
that he had been informed by General Davalos, the commander at Ma-
zatlan, and by Mr. Sessalveda, the inspector of the customs there, that
the General Government had directed that its troops must not invade
the territory of Lozada. Whether this be a fact or not, that Govern-
ment, so long as it shall claim jurisdiction over that territory, must be
held responsible for any injuries to citizens of the United States, there
56

CHAP. I.] BORDER MARAUDERS. [§ 19.

or elsewhere, by any force which may have proceeded from the same
territory.

" lu times of peace redress for such injuries may, in the first instance
at least, be sought through the judicial tribunals of the country where
they may have been committed. When, however, they are uilenced or
overawed by the force of arms, it seems a mockery to be referred to
them, especially if there should be any ground for the charge that the
Mexican Government has willfully connived at a defiance of its author-
ity in the canton of Tepic."

Mr. Fish, Sec. of State, to Mr. Nelson, Nov. 16, 1870. MSS. Inst., Max., For. ReL,
1871. (See, also, same to same, Dec. 12, 1870, Id.; March 29, 1871, Id. ; Mr.
Davis to Mr. Nelson, Sept. 6, 1871, Id. ; Mr. Fish to Mr. Nelson, April 13, 1872,
Id.. For.Rel., 1872.)

" Your dispatch No. 279, of the 4th instant, relative to Mexican raids
in Texas, has been received. The assurances of a disposition on the
part of that Government to check them, which have been given to you
by Mr. Lafragua, are satisfactory, so far as thoy go. Those maraud-
ings, however, have of late been so frequent, bold, and destructive, that
they have occasioned much excitement in the public on this side the
river, which will probably lead to an expectation that acts on the part
of that Government will show the sincerity of its professions. We are
informed that a few of the raiders have been arrested on the Mexican
side, and that probably they are on the way to the capital for trial. It
is hoped that, if the proof should warrant their conviction, they will re-
ceive a full measure of punishment according to law, so that their fate
may serve as an example for deterring imitators.

"I am aware of no purpose here of acquiring an extension of terri-
tory on that frontier. If, however, as has been suggested to us, that
Government is embarrassed by the risk of desertions in sending a regu-
lar force to that quarter, it might not be indisposed to allow United
States troops to cross and temporarily occupy the territory whence the
raiders are in the habit of coming. The tract for such occupation might
be embraced in a line drawn from Matamoras to Laredo. You will con
sequently sound the minister for foreign affairs on this point, and report
the result.

'' It may be regarded as frivolous to seek to justify the hostile incur
sions into our territory on the ground of retaliation for similar excur-
sions from this side. There have been none such, and proof of the con-
trary is challenged. Indeed, the charge is improbable on its face, from
the fact that Mexico, near the border, holds out no temptation to plun-
derers from this side, while the reverse is the case in respect to baits in
Texas for Mexicans."

Mr. Fish, Sec. of State, to Mr. Foster, May 20, 1875. MSS. Inst., Mex., For. Rel.,

1875.

" Information of a most reliable character has reached this Depart-
ment of the continued depredations of the Mexican citizens of Ximenes

§ 19.] SOVEREIGNTY OVER LAND. [CHAP. I.

and the neighborhood, under the head of oue Areola, upon the Texan
border. It is reported ou the best authority that the officer in command
of the Mexican troops at Piedras Negras is not merely cognizant of the
repeated thefts of American cattle, but that he positively protects the
raiders, furnishing them with arms on occasion, and is moreover a
receiver to a large extent of the stolen property, feeding his troops,
even, upon the beef.

*******

" Upon such a statement of facts (which for sufficient reasons is not
made more definite) there can exist no reasonable doubt that the central
authority of Mexico should find it feasible even in the absence of sup-
plementary information to pursue and rigorously punish these particular
offenders.

"You are requested to bring this matter to the immediate attention
of the Mexican Government, making evident the earnestness with which
the Government of the United States presses these facts upon its serious
attention, to the end that more deplorable events may not follow.

" It will, of course, be natural that in due course of time certain of
those citizens of the United States who have been despoiled of their
property by the citizens of Mexico will seek reclamation, and if some
satisfactory recognition of the obligation of the Mexican Government
to amply provide for such contingencies should be obtained, it might
perhaps afford a greater facility to the future adjustment of these cases.
But you will take care to have it understood that a mere provision for
pecuniary redress in this connection will by no means be regarded as in
anywise a satisfaction for other than the actual losses which have been
sustained. The continued harassing and apparently ceaseless turmoil
which is kept up on our otherwise peaceful borders by these marauding
parties of Mexicans, which, crossing secretly and in the darkness of the
night from their own territory, emerge upon the farms and fields of
American citizens, carrying perpetual alarm and dread, and rendering
life in that region of our country well nigh insupportable, is not to be
weighed in any common pecuniary scale. The reclamation sufficient to
meet the results of a series of raids, worse in their effects than an abso-
lute invasion in time of war, can be no ordinary one.

•' You will present the views of the Government of the United States
on the subject of these repeated outrages upon our citizens in this light
in order that the sense entertained of the magnitude of the offenses
committed may not be underrated nor misunderstood."

Mr. Evarts, Sec. of State, to Mr. Foster, Sept. 20, 1878. MSS Inst., Max. ; For.
Eel., 1878.

" Eeferring to your note of the 31st of July last, in relation to certain

statements made to you by the Mexican consul at San Antonio, Tex., in

reference to the organization of revolutionary forces in Texas for the

purpose of invading Mexico, I have the honor to inform you that a let-

CHAP. I.] BORDER MARAUDERS. [§19.

ter has been received from the Secretary of War, communicating: a copj"
of a report from Captain Sellers, commanding; officer of Fort Mcintosh,
Texas, in which he states that he has no knowledge of any revolutionary
bands having been organized at Laredo, or that General Garza Ayala
and Santos Benavides have been in charge of any arms, or that they
have furnished any to rebels, or that forty men left Laredo equipped by
Santos Benavides, as was alleged; neither has he any knowledge of any
parties of rebels organizing in that vicinity in full view of Texan author-
ities, or of any cattle having been stolen from Mexico and driven to this
side, as was also rei)resented, although he has used every means to as-
certain the truth; that if Santos Benavides or others have been en-
gaged in enlisting such men as is represented, it has been done so
quietly that none but those concerned know anything about it, and
that if Santos Benavides, as is also represented, had addressed a party
of rebels at Laredo, promising them to turn over the town of New La-
redo to pillage, &c., it is almost certain that the War Department would
have been informed of the fact. He adds, there is no doubt that San-
tos Benavides and his brothers are strong adherents of Lerdo, and
that he heard that arms were consigned to them for the revolutionists,
but has never been able to obtain any facts in regard to it; that New
Laredo has had its representatives in Laredo to watch any revolution-
ary movement, and if the alleged occurrences were reported by them to
the proper authorities he has no knowledge of the fa*bt.

" In reference to the reported crossing the frontier on the 25th May by
the revolutionary bauds, he had made inquiry of General Sykes, com-
manding the district of the Rio Grande, who stated that he knew noth-
ing of such crossing, and as to the accusation made against Mr. Adams,
he is confident that it is a slander, and that, in his opinion, the report .
was made by Santiago Sanchez, between whom and Mr. Adams there
was a personal quarrel ; that Isidore Salinas and Pablo Quintana are
doubtless guilty of all charged to them, and might have been arrested
long ago if the Mexican authorities wanted them ; that he has frequently
advised the proper authorities of New Laredo to make complaints
against Salinas and other revolutionists before the United States com-
missioner at this place, in order that they could be arrested when found
here, and that he was informed by the county judge of Webb County
that the latter had never been applied to, either personally or officially,
by the Mexican authorities, to arrest revolutionists or rebels. * * *

" I transmit the information thus received, believing that you will
recognize in it a complete exculpation of the authorities of this Govern-
ment upon the frontier, inasmuch as the facts thus presented seem to
show a lukewarmness and inefficiency on the Mexican side in singular
contrast with the loyal and frank manner in which the officers of the
United States have attempted to fulfill the international duty resting
upon them to contribute by all the effective means in their power to the

^ 19.] SOVEREIGNTY OVER LAND. [CHAP. I.

preservation of order and the repression of lawless force. It is to be re-
gretted that their efforts were not promptly responded to in the same
spirit as that iu which they were made."

Mr. Evarts, Sec. of State, to Mr. Zamacona, Oct. 30, 1878. MSS. Notes, Mex.,

For. Rel., 1878.
As to duty of the Domiuiou Government to repress wreckers ou the lakes, see
Mr. Evarts, Sec. of State, to Sir E. Thornton, June 13, 1879. MSS. Notes,
Gr.Brit. ; For. Rel., 1879.

" I have the honor to acknowledge the receipt of your note of the 8th
instant in reference to the proceedings of a mob near Willcox, Pima
County, Arizona, which resulted in the hanging of one man and the
mysterious disappearance of another, who was held a prisoner in the
hands of those engaged in the outrage, and I also acknowledge the
receipt of your notes of the 15th and 18th instant, respectively, both
referring to cases of plunder by marauding bauds, unfortunately so
common to both sides of the border between the two Republics.

"Replying to these several notes I do myself the honor to state for
your information, and for that of the Government you so worthily rep-
resent, that I have addressed a letter to the governor of Arizona, in-
closing a copy of each of the notes in question and requesting him to
institute an iuvestigatiou, under the direction of the United States
district attorney or such other Federal officer as he, the governor,
might deem proper to select, into all the facts and circumstances ot
the affair in Pima County, and urging upon his excellency at the same
time the importance of using every available means within the power
of the Territorial executive authorities to have the instigators and
perpetrators of the outrage discovered and brought to trial.

"In this same communication Governor Fremont was requested and
earnestly urged to adopt such measures as, in his judgment, might
prove most effective in i)romoting increased vigilance on the part of
the local authorities of the border counties of Arizona, with a view to
the suppression of these lawless raiding parties who appear to be or-
ganized on each side of the boundary line for purposes of robbery
and indiscriminate plunder.

"The fact is too well authenticated to be unknown to the Mexican
Government, as it is well known to this, that these bands are generally,
if not altogether made up of Mexicans and Americans who give them-
selves no care as to the nationality of their comrades in crime, and
entertain a common disregard for the laws of either country.

" While these conditions exist it is only by corresponding vigilance
of the authorities on either side of the line that a suppression of these
marauding bauds can be hoped for. I can give you the assurance that
no effort will be spared by this Government which may give promise
of that result."

Mr. Blaine, Sec. of State, to Mr. Zamacona, Aug. 20, 1881. MSS. Notes, Mex.;
For. Rel., 1881.
GO

CHAP. I.] BORDER MARAUDERS. [§ 19.

" The feasibility of adopting specific measures for the prevention of
lawless incursions upon either side of the Rio Grande is a subject, I
beg to assure .you, which has not failed of earnest attention by this
Government as well as by the authorities of the State of Texas and the
adjacent Territories ; and while any proposition for summary Govern-
ment action which contemplates individual restraint for precautionary
rather than penal cause must encounter objections of serious weight,
such objections have no place in the established or suggested systems,
which, aiming at regular defined and ascertained ofi'enses, seek in-
directly to deter from other and more grievous crime.

"Hence, upon the presentation of the subject by Mr. Eomero's note
of January 20 and April 11 last, the Department took means to ascer-
tain more accurately the extent to which the purpose of preventing
these too frequent expeditions was represented in the enactments gov-
erning the districts upon this side of the border, and I am gratified
now to be able to communicate the general character of the informa-
tion obtained.

"It has long been manifest that plunder was a principal motive for
the excursions which hgive emanated either from Mexico or the United
States, and, recognizing the impracticability of restraining completely
the departure or return of evil-minded persons across a border of such
considerable extent, the efforts of the legislature have been to so in-
crease the difficulties of realizing profits from unlawfully acquired prop-
erty that the attempts to obtain such property would lessen.

"Accordingly, and auxiliary to proceedings against the actual
offender, the legislatures of the two Territories have made ample and
exceptional provisions affecting the receivers or sellers of stolen prop-
erty. In Arizona these withdraw from the possessor, though innocent,
any security of title against the original owner, and if the latter follows
his property with reasonable proof he can thus always recover it by
judicial assistance. So, too, these statutes are particularly considerate
of the safety of all live property, which is peculiarly a subject of plun-
der, and by heavy penalties require the branding system and guard
against any but notable and formal alteration of the marks, and by
many severe restrictions tend to render difficult and improbable any
but open and lawful dealings in this important species of property.

"In Is^ew Mexico the larceny of a branded animal is a felony, with-
out reference to its value, and in Arizona such offense is grand larceny,
as may be that of the receivers. In neither is it considered that these
and other provisions would be inapplicable in the case of property
stolen in Mexico and brought across the border.

"I am uninformed as to whether the neighboring States of Mexico
have enactments of equal extent, but presume that the similarity of oc-
cupations, interests, and necessity have prompted measures in this
direction, and while existing facilities in this country may prove not
entirely adequate to preventing the evils in question, they seem a vig-

§ 20.] SOVEREIGNTY OVER LAND. [CHAP. I.

orous attempt, and if individual instances under these laws were reso-
Intcly prosecuted, with the aid of those wronged, the hazard of theft
should constantly increase and in that proportion would its attempts
be avoided. As illustrating the readiness and desire of the people of
this country to make use of any new expedient seemingly adapted to
the repression of this organized plundering, I beg to refer to a letter
recently submitted here from the acting governor of Arizona.

" In counseling upon the subject he remarks : ' I think a mounted
police or military force should be posted in such manner as to guard
the passes between the mountains on the border through which stolen
cattle are driven and through which smugglers and raiding Indian
bands pass to and from ^lexico,' and adds that this opinion, which is
shared bj' all intelligent men of the Territory, had expression in a bill
introduced at the late session o^ the legislature, but too late for final
action.

" Should it prove possible for the frontier States to supplement their
existing laws with direct measures of the above nature, it might confi-
dently be expected, in conjunction with a similar system in Mexico,
that conditions which have so long and persistently threatened the
population of both countries would be speedily and favorably affected."

Mr. Frelinghuysen, Sec. of State, to Mr. Romero, Sept. 15,1883. MSS. Notes
Mex. ; For. Rel., 1883.

As to duty of Mexico to punish or extradite marauders on territory of the
United States, see further, Mr. Evarts, Sec. of State, to Mr. Foster, Dec. 7,
1877. MSS. Inst. Mex.; For. Rel., 1878. Mr. F. W. Seward, Acting Sec. of
State, to Mr. Foster, Jan. 15, 1879. MSS. Inst. Mex, ; For. Rel., 1879.

(3) Diversion or Obstruction of Water.

§20.

"I transmit herewith, for your information in the premises and for
your guidance in any future action that may be indicated to you, should
any such appear to be necessary, a copy of a letter of the 10th ultimo,
together with its various inclosures, from the governor of the State of
Texas, asking the intervention of the General Government in a matter
of vital importance to the citizens of that State living on the eastern
.shore of the Eio Grande.

"The inclosures, as you will see, consist of the statement of the county
judge of El Paso County and petitions signed by prominent citizens of
San Eliza rio and Socorro.

"The ground of complaint, as alleged, is that the Mexicans engaged
in agricultural pursuits on the Mexican shore of the river are in the
habit of diverting all the water that comes down the river during the
dry season into their ditches, thereby preventing our citizens from get-
ting suflBeient water to irrigate their crops.

"This, if true, would be in direct opposition to the recognized rights
of riparian owners, and if persisted in must result in disaster and ruin
62

CHAP. I.] BOEDER WATERCOURSES. [§ 20.

to our farming population on the line of the Rio Grande, and might
eventually, if not amicably adjusted through the medium of diplomatic
intervention, be productive of constant strife and breaches of the peace
between the inhabitants of eitlier shore.

"I have addressed a note to the Mexican minister at this cai)ital, re-
questing him to bring the matter to the attention of his Government,
with a view to obtaining, if possible, alleviation from these annoyances.

"You will, therefore, investigate the matter as carefully and thor-
oughly as possible, and will report the result to the Department, when,
should the facts be found to bear out the allegations set forth in the
inclosed correspondence, further action will be taken in the premises."

Mr. Evarts, Sec. of State, to Mr. Morgan, June 12, 1880. MSS. Inst., Mex. ;
For. Eel., 1880.

"I have the honor to solicit your most earnest attention to a matter
of vital importance to the citizens of the State of Texas engaged in agri
cultural pursuits on the eastern shore of the Eio Grande.

"A statement of the facts as alleged is given in inclosed copies of cor-
respondence, consisting of a letter addressed to the Secretary of State
by the governor of Texas, and the inclosures therein contained, being
the statement of the county judge of El Paso County and petitions
signed by several hundred citizens of San Elizario and Socorro.

"The trouble complained of appears to be the result of the action of
the Mexican population on the western shore of the river in diverting,
into ditches dug for that i)urpose, the small quantity of water that finds
its way down during the dry season, thereby totally depriving the agri-
culturists on the eastern or Texan shore of the means of irrigating their
crops, and thus cutting ofl" their sole means of livelihood. As this is not
only in direct opposition to the recognized rights of riparian proprietors,
but is also contrary to that good feeling and harmony which ought to
exist between colaborers in peaceful pursuits, and might, moreover, if
permitted to continue, result in bitter feeling and possible breaches of
the peace, I most earnestly request, in these high interests, that you
will have the goodness to bring the matter to the attention of your Gov-
ernment with a view to procuring a cessation of the annoyance com-
plained of.

"I shall be happy to co-operate with you in any way tending to pro-
duce the desired result, and have, to that end, already instructed the
minister of the United States at Mexico to put himself in communica-
tion with your Government on the subject, and should the facts prove,
upon investigation, to be as stated, to endeavor to have the injustice
complained of put an end to."

Mr. Evarts, Sec. of State, to Mr. Navarro, June 15, 1880. MSS. Notes, Mex.;
For. Eel.,. 1880,

The erection of works on the Meduxnikik Eiver in Few Brunswick
in such a way as to obstruct the flow of water in Maine, and to in-

^S 21.] SOVEREIGNTY OVER LAND. [CHAP. I.

Jure the lumbering business in that State, is a proper subject tor dip-
lomatic interposition by this Government.

Mr. Frclinghuysen, Sec. of State, to Mr. Lowell, May 16, 1884. MSS. Inst.,
Great Britain.

A party doing an injury in one State to a water-power running into
another State, may be proceeded against in civil suit in either State in
which he may be served with process ; though proceedings in rem^ by
way of injunction or indictment to compel abatement, can only be
brought in the jurisdiction in which the nuisance exists.

See 6 Crim. Law Mag., 169 ; Stillman v. Man. Co., 3 Wood, and M., 538; Foot v.
Edwards, 2 Blatch., 310; Miss, and Mo. R. R. v. Ward, 2 Black, 485;
Wooster v. Man. Co., 31 Me., 246; In re Eldred, 46 Wis., 530; Thayer r.
Brooks, 17 Ohio, 489; Armendiaz v. Stillman, 54 Tex., 623.

XVIII. WHEN HARM IS DONE BY ORDER OF FOREIGN SOVEREIGN,
SUCH SOVEREIGN IS THE ACCOUNTABLE PARTY.

§21.

There is no question that this rule holds good where the injury in
question is done by a foreign sovereign's order, or by his of&cerSj on
the high seas.

Infra, §$ 227, 228.

Nor is there any question that when such injury is done on land as
part of a warlike attack, the sovereign is responsible ; though the party
acting under his directions is responsible under the laws of war.

1 Op., 81, Lee, 1797, infra, ^^ 223, 224.

But when the agent of a sovereign with whom we are at peace enters
our territory and there inflicts an injury, whether such agent can set up
in bar of a prosecution that he acted under his sovereign's orders, is a
question tliat was much discussed in connection with the trial in New
York of INIcLeod, in 1841, for the murder, some years before, of a per-
son killed in the attack on the Caroline, in the port of Schlosser, in
New York. The Caroline was in the employ of insurgents attempting
the overthrow of the Canadian Government ; and the attack was made
on her by Canadian authority, the invasion of the territory of the
United States being excused on the ground of necessity.
See as to question of necessity, infra, § 50.

To this case the following extracts relate:

"That an individual forming part of a public force and acting under
the authority of his Government, is not to be held answerable as a pri-
vate trespasser or malefactor, is a principle of public law sanctioned
by the usages of all civilized nations, and which the Government of the
United States has no inclination to dispute. This has no connection
whatever with the question whether in this case the attack on the Caro-
line was, as the British Government thinks, a justifiable employment of
64

CHAP. 1.] m'leod's case. [s^ 21.

force for the purpose of defending the British territory from unpro-
voked attack, or whether it was a most unjustifiable invasion in time of
peace of the territory of the United States, as this Government has re-
garded it. The two questions are essentially different, and while ac-
knowledging that an individual may claim immunity from the conse-
quences of acts done by him, by showing that he acted under national
authority, this Government is not to be understood as changing the
opinions which it has heretofore expressed, in regard to the real nature
of the transaction which resulted in the destruction of the Caroline.
That subject it is not necessary for any purpose connected with this
communication to discuss. The views of this Government in relation
to it are known to that of England, and we are expecting the answer
of that Government to the communication which has been made to it.
" All that is intended to be said at present is, that the attack on the
Caroline is avowed as a national act, which may justify reprisals or
even general war if the Government of the United States, in the judg-
ment which it shall form of the transaction and of its own duty, should
see tit so to decide, yet that it raises a question entirely public and
political, a question between independent nations, and that individuals
connected in it cannot be arrested and tried before the ordinary tri-
bunals as for the violation of municipal law. If the attack on the
Caroline was unjustifiable, as this Government has asserted, the law
which has been violated is the law of nations, and the redress which is
to be sought is the redress authorized in such cases by the provisions
of that code."

Mr. Webster, Sec. of State, to Mr. Crittenden, 15 March, 1841. MSS. Dom. Let.

" This Government has admitted that for an act committed by the
command of his sovereign, jure belli, an individual cannot be responsible
in the ordinary courts «f another state. It would regard it as a high
indignity if a citizen of its own, acting under its authority and by its
special command in such cases, were held to answer in a municipal
tribunal, and to undergo punishment as if the behest of his Government
were no defense or protection to him.

" But your lordship is aware that, in regular constitutional govern-
ments, persons arrested on charges of high crimes can only be discharged
by some judicial proceeding. It is so in England ; it is so in the col-
onies and provinces of England. The forms of judicial proceeding differ
in different countries, being more rapid in some and more dilatory in
others, and, it may be added, generally more dilatory, or at least more
cautious in cases affecting life, in governments of a strictly limited
than in those of a more unlimited character. It was a subject of
regret that the release of McLeod was so long delayed. A State court,
and that not of the highest jurisdiction, decided that, on summary
application, embarrassed as it would appear by tec'hnical difQculties.
he could not be released by that court. His discharge, shortly after-
wards, by a jury to whom he preferred to submit his case, rendered
S. Mis. 162-vOL. I 5 65

§ 21. J SOVEREIGNTY OVER LAND. [CHAP, I.

uniu'cessary the further prosecution of the legal question. It is for the
Con<rress of the United States, whose attention has been called to the
subject, to say what further provision ought to* be made to expedite
proceediujjs in such cases; and, in answer to your lordship's question
towards the close of your note, 1 have to say that the Government
of the United States holds itself not only fully disposed but fully
coini)etent to carry into practice every principle which it avows or
acknowledges, and to fulfill every duty and obligation which it owes to
foreign governments, their citizens or subjects."

Mr. Webater, Sec. of State, to Lord Ashburton, Aug. 6, 1842. MSS. Notes.
Great Britain.
Mr. Calhoun, on June 11, 1841, when the position taken by the British
Government in McLeod's case was under discussion in the Senate,
stated that position to be "that where a government authorizes or
approves of the act of an individual it makes it the act of the govern-
ment, and thereby exempts the individual from all responsibility to the
injured eountry," which principle, Mr. Calhoun went on to say, was
accepted by the Secretary of State, Mr. Webster. This principle Mr.
Calhoun controverted. "The laws of nations," he said, "are but the
laws of morals, as applicable to individuals, so far modified, and no
further, as reason may make necessary in their application to nations.
Now, there can be no doubt that the analogous rule, when applied to
individuals, is that both principal and agents, or, if you will, instru-
ments, are responsible in criminal cases; directly' the reverse of the
rule on which the demand for the release of McLeod is made. * ^ * *
Suppose that the British or any other Government, in contemplation of
war, should send out emissaries to blow up the fortifications erected
for the defense of our great commercial marts, * * * would the
production of the most authentic papers, signed by all the authorities
of the British Government, make it a public transaction, and exempt
the villains from all responsibility to our laws and tribunals ? Or would
that Government dare to make a demand for their immediate release?
Or, if made, would ours dare to yield to it and release them? * * *
But .setting aside all supposititious caseis, I shall take one that actually
occurred, that of the notorious Henry, employed by the colonial author-
ity of Canada to tamper with a portion of our people, prior to the late
war, with the intention of alienating them from their Government and
eflfecting di.sunion in the event of hostilities. Suppose he had been de-
tected and arrested for his treasonable conduct, and that the British
Government had made the like demand for his release on th^ ground
that he wa.s executing the orders of his Government, and was not, th(jre-
fore, liable personally and individually to our laws and tribunals. I
ask, would our G^i-ernment be bound to comply with the demand?"
Mr. Calhoun, after accei)ting the position taken by Mr. Webster, that
the case was not one of war, proceeded to say that the attack on the
Caroline was an invasion of the territorial sovereignty of the United
66

CHAP. I.] m'leod's case. [§ 21.

States uot justified by necessity, aud that persons concerned in such
attack were responsible to the State of New York for the wrongs done
by them in it.

3 Calhoun's Works, 018. (See, fiirtlior, on the whole question, 3 Lawrence,
Com. droit, int., 430.)

To admit to its full extent the principle that we cannot subject to our
municipal laws aliens who violate such laws under direction of their
sovereigns, would be to give such sovereigns jurisdiction over our soil,
and to surrender pro tanto our territorial sovereignty. The British
demand for the surrender of McLeod can only be sustained on the
ground that the attack on the Caroline was excusable on the plea of
necessity.

See, further, infra, § 50c.

"Then the violence and bad spirit displayed in America have pro-
duced no small consternation here, though everybody goes on saying
that a war between the two countries and for so httle cause is impossi-
ble. It does seem impossible, and the manifest interest of both nations
is opposed to it; but when a country is so mob-governed as America,
and the Executive is so destitute of power, there must be great danger.
However, the general conviction is, that the present exhibition of
violence is attributable to the malignity of the outgoing party, which is
desirous of embarrassing their successors, and casting on them the
perils of a war or the odium of a reconciliation with this country, and
strong hopes are entertained that the new government will be too wise
to fall into the snare that is laid for them, and strong enough to check
aud master the bad spirit which is rife in the Northern States. The
real dithculty arises from the conviction here, that in the case of
McLeod we are in the right, and the equally strong conviction there
that we are not, and the actual doubt on which side the truth lies.
Senior, whom 1 met the other day, expressed great uncertainty, and he
proposes and has written to Government on the subject, that the ques-
tion of international law shall be submitted to the decision of a Ger-
man university — that of Berlin, he thinks, would be the best. This
idea he submitted to Stevenson, who approved of it, but the great dif-
ficulty would be to agree upon a statement of facts. Yesterday Lord
Lyndhurst was at the council oflice, talking over the matter with Sir
Herbert Jenner and Justice Littledale, and he said it was very ques-
tionable if the Americans had uot right on their side; and that he
thought, in a similar case here, we should be obliged to try the man,
and if convicted, nothing but a pardon could save him. These opin-
ions, casting such serious doubts on the question of right, are at least
enough to restrain indignation aud beget caution."

Greville's Memoirs, March 12, 1841, vol. 1, second series.

Portions of the correspondence with Great Britain in respect to the Caroline
and the imprisonment of McLeod will be found in the British and Foreign
State Papers for 1837-'38, vol. 20, l:'.73; 1840-'4l, vol. 29, n26.

For preliminary correspondence, see Mr. Forsyth, Sec. of State, to Mr. .Ste-
venson, March 12, 1838 ; MSS. Inst., Gr. Brit'. ; Mr. Webster, Sec. of State, to
Mr. Fox, April 24, 1841 ; MSS. Notes, Gr. Brit.

As concurring with Mr. Calhoun may be cited Dr. Lieber; Lieber's Life, 140;
Mr. Benton, 2 Benton's Thirty Years, «fec.,437. (Sec, also, 11 John Quincy
Adams's Mem., 25 ; 4 Bost. Law Rep., 109 ; McLeod's Trial, by Gould, pamp. ;
Neilson's Choate, 215; 1 Am. Law Mag., 348; Globe newspaper, 1841, App.,
422; Lawrence, Com. sur droit int., Ill, 430; 18 Alb. L.J. ,506; 1 Op. Att'y
Gen., 45, Bradford, 1794; same vol., 81, Lee, 1797; Phillips v. Eyre,L.R.6
Q.B. 1,24.)

The proceedings are reported in People v. McLeod, 25 Wend., 596. (See review
bv Judge Tallmadge, 26 Wend., 603, Append.)

§21.] SOVEREIGNTY OVER LAND. [CHAP. I.

General Halleck (1 Int. Low, Baker's ed., 431), in discussing McLeod's
case, says: "As McLeod was acquitted on this trial, there was no oppor-
tunity to obtain, by appeiil to the Federal courts, an opinion of the high-
est tribunal of the United States on this important question, and the
subseqxcnt act of Congress has obviated all danger of the recurrence of a
similar case. The opinion of Mr. Justice Cowen, however, seems not to
have received the approbation of the best judicial minds of his own
State, and to have been very generally condemned in other States and
by the political authorities of the Federal Government." And he goes
on to say that "among European writers on public law there seems to
be a general unanimity of opinion" sustaining Mr. Webster's view.
But the act of Congress which General Halleck cites does not settle the
law, but only indicates a way in which such cases may be reached by
the Federal courts.

Sir R, Phillimore (3 Int. Law, 3d ed., 1885, 60) appears to accept Mr.
Webster's conclusions, but, unaware of the Federal legislation that suc-
ceeded the trial, comments on the inadequacy of the Federal system to
meet cases of this class.

Mr. Hall (Int. Law, § 102) cites Mr. Webster's conclusions without
dissent, and declares that " when a state in the exercise of its right of
self-preservation, does acts of violence within the territory of a foreign
state, while remaining at peace with it, its agents cannot be tried for
the murder of persons killed by them, nor are they liable to a civil ac-
tion in respect to damages to property which they may have caused."

The statute to which the McLeod case gave rise, and which allows an
ai)i)eal to the Federal courts in cases of the same class, is incor])orated
as follows in the Eevised Statutes :

Sec. 752. The several justices and judges of the said [Federal] courts,
within their respective jurisdictions, shall have power to grant writs of
habeas corpus for the purpose of an inquiry into the cause of restraint
of liberty.

>J4 Sept., 1789, c. 20, s. 14, v. 1, p. 81 ; 10 April, 1869, c. 22, s. 2, v. 16, p. 44 ; 2
Mar., 1833, c. 57, s. 7, v. 4, p. 634 ; 5 Feb., 1867, c. 28, s. 1, v. 14, p. 385 ; 29
Aug., 1842, c. 257, a. 1, v. 5, p. 539.

Sec. 753. The writ of habeas corpus shall in no case extend to a
j)risoner in jail, unless where he is in custody under or by color of the
autliority of the United States, or is committed for trial before some
court thereof; or is in custody for an act done or omitted in pursuance
of a law of the United States, or of an order, process, or decree of a
court or judge thereof; or is in custody in violation of the Constitution
or of a law or treaty of the United States ; or, being a subject or citizen
of a foreign state, and domiciled therein, is in custody for an act done
or omitted under any alleged right, title, authority, privilege, protec-
tion, ■ >r exemption claimed under the commission, or order, or sanction
of any foreign state, or under color thereof, the validity and effect
whereof depend upon the law of nations; or unless it is necessary to
bring the prisoner into couat to testify.

24 Sept., 1789, c. 20, s. 14, v. 1, p. 81; 2 Mar., 1833, c. 57, s. 7, v. 4, p. 634; 5
Feb., 1867, c. 28, s. 1, v. 14, p. 385; 29 Aug., 1842, c.257, s. 1, v. 5, p. .539.
Ex parte Dorr, 3 How., 103; Ex parte Barues, 1 Spragne, 133: Ex parte
Bridges, 2 Woods, 428.

Sec. 754. Application for writ of habeas corpus shall be made to the
court, or justice, or judge authorized to issue the satue, bv complaint in
writing, signed by the person for whose relief it is intended, setting
68

CHAP. I.] PLACING BOUNDARIES. [§ 22.

forth the facts concern in. £;• the detention of the i)art.v )-estrained, in
wliose cnstody he is detained, and by virtue of what chiini or authority,
if known. The facts set forth in the coini)hiint shall be verified by the
oath of the person making the application.

.f") Feb., 1867, c. 28, s. 1, v. 14, p. 385.

See further as to McLeod's case, infra, $ 350.

XIX. TERRITORIAL BOUNDARIES DETERMINED. BY POLITICAL AND
NOT JUDICIAL ACTION.

§22.

In a controversy between the United States and a foreign nation as
to boundary, the courts will follow the decision of those departments
of the Government to which the assertion of its interests against for-
eign powers is confided, i. e., the legislative and executive.

Foster v. Neilson, 2 Peters, 253 ; Garcia v. Lee, 12 id., 511 ; Willianis v. Sutfolk
Ins. Co., 13 id., 415 ; U. S. v. Eeynes, 9 Howard, 127.

CHAPTER 11.

SOVEREIGNTY OVER WATER.

I. High seas: sovereignty over, ^26.

II. Territorial waters: privileges of, §27.

III. Bays, § 28.

IV. Straits, § 29.
V. Rivers, § 30.

VI. Lakes and inland seas, § 31.

VII. Marginal belt of sea, § 32.

VIII. Ship nationalized by flag, § 33.

IX. Crimes at sea subject to country of flag, § 33a.

X. Ports open to all nations, ^ 34.

XI. Merchant vessels subject to police law of port, <\ 35.

XII. Crimes on such vessels, how far subject to port laws, $ .35a.

XIII. Not so as to public ships, § 36.

XIV. Oppressive port exactions, § 37.

XV. Exemptions from stress of weather: vis major, or inadvertence, § 38.

XVI. Arming merchant vessels, § 39.

XVII. Neutralized waters, § 40.

I. HIGH SEAS, SOVEREIGNTY OVER.
§ 26.

The high seas belong in common to all nations, with the exception of
that i)ortion of water covered by a ship of a particular nation; which
portion of water is considered as part of the territory of the nation to
which the ship belongs.

Infra, ^ 33.

The law of the sea, like all the laws of nations, rests upon the com-
mon consent of civilized communities; and while no single nation can
change it, it can be changed by common consent, of which the court
will take judicial notice.

The Scotia, 14 Wallace, 170.

When a controversy between foreign vessels in the courts of the
United States arises under the common law of nations, the court below,
having admiralty functions, should take jurisdiction, unless special
grounds are shown why it should not do so.
The Belgenland, 114 U. S., 35''^.

CHAP. II.] TERRITORIAL WATERS. [§ 27.

A collisiou ou the high seas between vessels of different nationalities
is prima facie a proper subject of inquiry in any court of admiralty
which first obtains jurisdiction.

lUd.

II. TEBBIIOBIAL WATERS, PRIVILEGES OF.

§ 27.

As to limits of territorial waters as affected by necessity, see infra, § 38.
As to Russian claim of territorial waters, see infra, $ 32.

The admission of foreign vessels of war within our territorial waters
is by international law a matter of courtesy, and, when there is no
treaty, may be refused by the Executive on due cause.

Infra, §§ 3156, jf. 319.

A neutral is bound not to permit his territorial waters to be the base
of action by one belligerent against another ; and he is responsible for
his failure to perform his duty in this respect to a belligerent who may
be injured thereby.

Infra, ^ 399.

A neutral who sustains injury from belligerent action in his territorial
waters may claim from such belligerent compensation for such injury.

Infra, ^ 32, 227, 228, 398, 399.

A seizure within the waters of the United Stated, by a British cruiser,
of a Spanish vessel alleged to be a slaver, is an invasion of the sov-
ereignty of the United States.

Mr. Clay, Sec. of State, to Mr. Vauglian, Feb. 18, 1828; MSS. Notes For. Leg.

An attack by one belligerent cruiser in the territorial waters of a
neutral on a'vessel belonging to the other belligerent, is an insult for
which the neutral is entitled to demand redress and reparation.

Infra, ^ 399.

•'In the case of the Anna captured by a British cruiser in 1805, near
the mouth of the Mississippi and within the jurisdiction of the United
States, the British court of admiralty not only restored the captured
property, but fully asserted and vindicated the sanctity of neutral ter-
ritory by a decree of costs and damages against the captor. If a
neutral state neglects to make such restitution, and to enforce the
sanctity of its territory, but tamely submits to the outrages of one of
the belligerents, it forfeits the immunities of its neutral character with
respect to the other, and may be treated by it as an enemy. Phillimore
on Int. Law, vol, iii, §§ 155-157 ; the Vrow Anua Catharina, 5 Rob., 15;
the Anna, 5 Rob., 348; Heffter, Droit International, §§ 14G-150; Bello,
Droit luternacional, pt. ii, cap. vii, § C> ; Riquelme Derecho Pub. Int.,
lib. i, tit. ii, cap. xvii."

2 Halleck's Int. Law (Baker's ed.), 205; astothe Anna, see more fully i«/ra,§ 399.

§ 27] SOVEREIGNTY OVER WATER. [CHAP. II.

•' Diniiij^- llic war of ISlL'-lo between the United States and Great
liritain, the United States frijjate Essex was attacked and compelled
to surrender, while at anchor, dismasted, in Valparaiso, by the British
frigate Phcebe and sloopof-war Cherub. The sloop-ofwar Levant, a
recent prize to the United States frigate Constitution, was chased into
Port Praya, and captured while at anchor there by vessels from the
British fleet. The United States privateer General Armstrong, lying
in the harbor of Fayal, was destroyed by vessels from the British tleet.
The demand upon Portugal, by the United States, for indemnihcation
was ultimately left to the arbitration of Louis Napoleon, then Pjesi-
dent of the French Eepublic. He recognized the attack as a violation
of neutral rights, but decided against indemnification, on the ground
that the privateer did not demand protection from the Portuguese
authorities at the time, but resisted by battle the unjust attack of the
l^ritish vessels, instead of relying upon the neutral protection. This
decision was not satisfactory to the United States, as they did not
consider the fact on which it rested as established in proof. The ])rin-
(•ij)le of the decision must certainly be confined to cases where the
Vessel attacked has reason to believe that effectual protection can be
seasonably afforded by the neutral, and makes a fair choice to take the
chances of a combat rather than to appeal to neutral protection. Ex.
Doc, 32d Cong., Senate, Xo. 24."

Dana's Wheatoa, § 429, note 208.

For attacks in 1807 on the Chesapeake by the Leopard in United States terri-
torial waters, see infra, $ 3156.
For disquisition on territorial waters, see 11 Edinburg Rev. 16; (Oct., 1807.)

The Chesapeake was a United States merchant steamer, which sailed
on December 5, 1863, from iN'ew York to Portland, carrying mainly
goods. She was boarded, when starting, by six men, who asked to be
received as passengers. When, however, they had left the shore, these
men, under the command of one of their number named Braine, obtained
control of the vessel, killed one of the officers, wounded two others,
seized the captain and forced him, with a part of his crew, in a boat to
reach the jwrt of Saint John's, Xew Brunswick. Having become masters
of the ship, those engaged in the revolt landed at several points in
Nova Scotia, gave the ship the name of The Eetribution, asserting that
it was a Confederate war vessel, disembarked the cargo, and took in
l)rovisions and coal. This conduct exciting attention, the local authori-
ties resisted the continuation of the performances of the Chesapeake in
this line, and required her to put to sea. In the mean time the owners
of the cargo complained at Washington of the spoliation of which they
were the victims, and the Government of the United States called on the
British minister to require the authorities of Nova Scotia to detain the
Chesapeake when she should next come into port, and to imprison the
parties who manned her until extradition proceedings could be had
•against them under the treaty of 1842. Cruisers being sent out by the
Xavy Department to look for the Chesapeake, she was discovered near
Samboro, a Canadian port, with a signal of distress flying, deserted
by the captors, and manned by two British subjects, whom the captors
had employed as engineers, and by some of the original crew. Near
72

CHAP. II.] TEERITORIAL WATERS. [§27.

her was discovered a small sailing vessel, which had come to supply
her with coal. On searching the latter vessel a <iuantity of goods from
the Chesapeake, was found in the charge of one of the captors Wade,
who was seized and placed in irons. Captain Clary, of the United States
cruiser Dacotah, coming into port, as senior officer, took the Chesa-
peake to Halifax. As the capture was made in British waters Captain
Clary offered to deliver the Chesapeake and the three prisoners to the
British authorities, asking that the Chesapeake be returned to her
owners, and the prisoners held for extradition. Mr. Seward, at the
same time, expressed to Lord Lyons the regret felt by the Department
that British territorial waters should have been invaded, ottering to
make any amends, but repeating the request that the prisoiiers, when
surrendered to Great Britain, should be retained to await extradition,
and that the vessel should be surrendered; or, as an alternative, that
both vessel and prisoners should be brought to the TJnited States, to
be delivered to the British Government if required, subject to subse-
quent extradition. The British Government, in reply, took the position
that the seizure of the Chesapeake in British waters was an interna-
tional wrong which should be repaired by the surrender of the vessel to
Great Britain and by setting the prisoners free. This plan was consum-
mated by the delivery of the Chesapeake to the British authorities at
Halifax for adjudication, and the handing over the prisoners to the
sheriff at that place, who set them at large. Once free they managed
to escape before warrants for arrest under extradition process could be
served on them. The advocate-general, as Crown officer, instituted
proceedings against the Chesapeake, as having been piratically seized
on the high seas, and in these proceedings the owners of vessel and
cargo appeared as claimants, the United States not appearing as a
party. Judge Stewart, who presided in the vice-admiralty court, held
that the seizure by Braiue and his confederates, as they had no bellig
erent commission, was piratical, and that hence restitution was to be
ordered to the owners. He went on to say that even if Braine and his
confederates had belligerent authority, their course after the seizure
deprived them of the right such authority would give, since they brought
the vessel into a neutral port, without judicial condemnation, and there
sold the cargo, comprising neutral as well as enemy's property, surrepti-
tiously using false pretenses to obtain supplies, and then, instead of
contesting their rights as belligerents, fled the jurisdiction.

See summary in Calvo, 3d ed., 3 vol., 481 ; and see also infra, % 315.

On this question Mr. Dana thus speaks :

" The whole case is resolved into a few elements : Whether Braine
and his party were pirates jure gentium^ or only criminals by the mu-
nicipal law of the United States, the naval officers of the United
States, as belligerents, had no right to arrest them or the vessel within
British territorial jurisdiction. Disclaimer and apology by the United
States became necessary, and were freely tendered. The United

§ 27.] SOVEREIGNTY OVER WATER. [CHAP. II.

States regarded the case as one orf' pure piracy, and the act of its offi-
cers in malcino- the arrest as the result of a zealous desire to perform a
duty to mankind, and accompanied with no willful or unnecessary
force or rudeness ; and, as the port was a small one, with no local po-
lice force, the retaking possession of persons and property piratically
seized, under such circumstances, for the sole purpose of delivering
them at once into competent neutral custody, constituted rather a
formal than a serious violation of the law of nations, for which resto-
ration of the vessel and prisoners to British authority, disclaimer,
apology, and a censure of the officers was an adequate satisfaction
and security. Great Britain acquiesced in this view. No competent
claim of belligerent authority for the seizure by Braiue and his party
was ever made, either in the courts or to the political authorities of
Great Britain, so the legal and political character of the case was one
of piracy, with a notion that a color of belligerent authority might
possibly have existed, which was never produced. The restitution of
vessel and cargo to the owners, by rule of the vice-admiralty court, on
motion of the crown officer, ended the question as to the vessel ; and
the escape of the men, between their discharge and rearrest closed the
question as to the extradition. U. S. Dip. Corr. 1864, Part I, pp. 46, 72,
121, 196, 431 ; Part II, pp. 401-407, 468, 474, 482, 483, 488, 490, oil,
538, 562, 650. Papers presented to the House of Commons in reply
to the address of March 7, 1864, North America, No. 9."

Dana's Wheaton, § 428, note 207.

The seizure of the Confederate cruiser Florida, by the Federal cruiser
Wacliusett, in the port of Bahia, Brazil, in October, 1864, was con-
ceded by the United States Government to be an invasion of Brazil-
ian territorial waters. The act was disavowed by the United States^
and in a note of December 26, 1864, to Mr. Barbosa da Silva, Brazil-
ian minister at Washington, Mr. Seward announced the proposed trial
by court-martial of the captain of the Wachusett, the dismissal of the
United States consul at Bahia, who advised the attack, the release of
the parties on the Florida, and a salute to the Brazilian flag. Mr.
Seward proceeded to mention that the Florida, while at anchor in
Hampton Eoads, had, by an unavoidable casualty, foundered. To
fulfill the engagement of saluting the Brazilian flag, the United States
(iovernment, in 1866, sent to Bahia a United States vessel of war for
the announced purpose of delivering a solemn salute to the Brazilian
flag on the spot where Brazilian neutrality had been invaded.

See Dana's Wboaton, note, 209; Calvo, 8cl ed., 3 vol., 487, -where the case is
given in detail. See also infra, $ 399.

The papers connected with the seizure of the schooner Greyhound, in Boston
Harbor, in Angnst, 1793, by orders of the French vice-consul in Boston, are
given in 1 Am. State Papers; For. Rel., 178 ff.

The seizure by a ship-of-war of the United States of a vessel within
the jurisdiction of a foreign government, for an infringement of our
revenue or navigation laws, is a violation of the territorial authority of
such government.

4 Op.. 285, Nelson, 1843.
74

CHAP. II.] BAYS. [§28.

III. BAFS.

§28.

The whole of the waters within the capes of the Delaware Bay is
neutral territory when the United States is neutral. This neutrality
depends not "on any of the various distances claimed" on the sea "by
ditterent nations possessing the neighboring shore," but upon the fact
that the United States are the proprietors of the lands on both sides of
the Delaware, from its head to its entrance into the sea. But the law of
nations and the treaty of Paris of 1783 may justify the United States
in attaching to their coasts "an extent into the sea beyond the reach of
cannon shot."

1 Op., 32, Eandolph, 1793; 1 Am. St. Pap. (For. Eel.), 80. (See Mr. Jefferson,
Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. lust. Ministers ; 1 Am.
St. Paps. (For. Eel.), 167.

"DeMware Bay was declared in 1793 to belong exclusively to the
United States. When, however, the headlands are very remote, there
is more doubt in regard to the claim of exclusive control over them;
and, for the most part, such claim has not been made. Chancellor
Kent (I, 30) inclines to claim for the United States the dominion over
a very wide extent of the adjacent ocean. 'Considering,' says he, Hhe
great extent of the line of the American coasts, we have a right to
claim, tor fiscal and defensive regulations, a liberal extension of mari-
time jurisdiction; and it would not be unreasonable, as 1 apprehend,
to assume for domestic purposes connected with our safety and wel-
fare the control of waters on our coasts, though included within lines
stretching from quite distant headlands — as, for instance, froui Cape
Ann to Cape Cod, and from Nantucket to Montauk Point, and from
that point to the capes of the Delaware, and from the south cope of
Florida to the Mississippi. In 1793 our Government thought- they were
entitled, in reason, to as broad a margin of protected navigation as any
nation whatever, though at that time they did not positively insist be-
yond the distance of a marine league from the sea-shores; and in 180G
our Government thought it would not be unreasonable, considering the
extent of the United States, the shoalness of their coast, and the natu-
ral indication furnished by the well-defined path of the Gulf Stream,
to expect an immunity from belligerent warfare for the space between
that limit and the American shore.' But such broad claims have not,
it is believed, been much urged, and they are out of character for a
nation that has ever asserted the freedom of doubtful waters, as well
as contrary to the spirit of the more recent times."

Woolsey's Int. Law, ^ 56. (See comments in Wbart. Com. Am. Law, ij 192

and discussions in procedure of Halifax Commission, Vol. I, 145 Jf.)
As to marine belt see injra, $ 32.

"In defining the distance protected against belligerent proceedings
it would not, perhaps, be unreasonable, considering the extent of the
United States, the shoalness of their coast, and the natural indication
furnished by the well-defined path of the Gulf Stream, to expect an
immunity for the space between that limit and the American shore.

§ 29.] SOVEREIGNTY OVER WATER. [CHAP. II.

But al least i( ina.v bo insisted that the extent of the neutral immunity
sliouid (U)nvspoii<l with the claims maintained by Great Britain around
her own territory."

Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, May 17, 1806. MSS.
lust. Ministers.

It cannot be asserted as a general rule that nations have an exclusive
right of fishery over all adjacent waters to a distance of three marine
miles beyond an imaginary line drawn from headland to headland. This
doctrine of headlands is new, and has received a proper limit in the con-
vention between France and Great Britain of the 2d of August, 1839, in
which " It is equally agreed that the distance of three miles fixed as the
general limit for the exclusive right of fishery upon the coasts of the
two countries shall, with respect to bays, the mouths of which do not
exceed ten miles in width, be measured from a straight line drawn from
headland to headland."

Umpire, London C, 1853, 212; S. P., 214. Cited 1 Halifax award, 1.52. See
infra, $ 32.

Where two nations are possessed of territory on opposite sides of a bay
or navigable river, the sovereignty of each presumptively extends to the
middle of the water from any part of their respective shores.
5 Op., 412, Crittenden, 1851.

Where one nation first takes possession of the whole of the bay or
navigable river, and exercises sovereignty thereon, the neighboring peo-
ple shall nevertheless be " lords of their particular ports, and so much
of the sea or navigable river as the convenient access to the shore re-
quires."

Ihid.
On May 14, 1870, the "headland" doctrine having been reasserted
by Mr. Peter Mitchell, provincial minister of marine and fisheries, Lord
Granville, British foreign secretary, on June 6, 1870, telegraphed to the
governor-general as follows: " Her Majesty's Government hopes that
the United States fishermen will not be, for the present, prevented from
fishing, except within three miles of land, or in bays which are less
than six miles broad at the mouth."

1 Halifax Comni., 1.%. Infra, ^ 32, 303.

IV. STRAITS.

§29.

"Negotiations are pending with Denmark to discontinue the practice
of levying tolls on our vessels and their cargoes passing through the
soun<l. 1 do not doubt that we can claim exemption therefrom, as a
matter of right. It is admitted on all hands that this exaction is sanc-
tioned, not by the general principles of the law of nations, but only by
special conventions, which most of the commercial nations have entered
76

CHAP. II.] STRAITS. [§ 29.

into with Denmark. The fifth article of our treaty of 1826 with Den-
mark provides that there shall not be paid, on the vessels of the United
States and their cargoes when i)assing through the sound, higher duties
than those of the most favored nations. This may be regarded as an
implied agreement to submit to the toll during the continuance of the
treaty, and, consequently, may embarrass the assertion of our right to
be released therefrom. There are also other provisions in the treaty
which ought to be modified. It was to remain in force for ten years, and
until one year after either party should give notice to the other of in-
tention to terminate it. I deem it expedient that the contemplated no-
tice should be given to the Government of Denmark."
President Pierce's second annual message, 1854.

" I remain of the opinion that the United States ought not to submit
to the payment of the sound dues, not so much because of their amount,
which is a secondary matter, but because it is in effect the recognition
of the right of Denmark to treat one of the great maritime highways of
nations as a close sea, and prevent the navigation of it as a privilege,
for which tribute may be Imposed upon those who have occasion to
use it.

'' This Government, on a former occasion not unlike the present, sig-
nalized its determination to maintain the freedom of the seas and of the
great natural channels of navigation. The Barbary States had for a
long time coerced the payment of tribute from all nations whose ships
frequented the Mediterranean. To the last demand of such payment
made by them the United States, although suffering less by their dep-
redations than many other nations, returned the explicit answer that
we preferred war to tribute, and thus opened the way to the relief of
the commerce of the world from an ignominious tax, so long submitted
to by the more powerful nations of Europe.

"If the manner of payment of the sound dues differ from that of the
tribute formerly conceded to the Barbary States, still their exaction by
Denmark has no better foundation in right. Each was, in its origin,
nothing but a tax on a common natural right, extorted by those who
were at that time able to obstruct the free and secure enjoyment of it,
but who no longer possess that power.

"Denmark, while resisting our assertion of the freedom of the Baltic
Sound and belts, has indicated a readiness to make some new arrange-
ment on the subject, and has invited the Governments interested, in
eluding the United States, to be represented in a convention to assem-
ble for the purpose of receiving and considering a proposition which she
intends to submit for the capitalization of the sound dues, and the dis-
tribution of the sum to be paid as commutation among the Governments
according to the respective proportion of their maritime commerce to
and from the Baltic. I have declined, in the behalf of the United
States, to accept this invitation, for the most cogent reasons. One is
that Denmark does not offer to submit to the convention the question of

§ 29.] SOVEREIGNTY OVER WATER. [CHAP. II,

her rijjht to levy the sound dues. The second is, that if the convention
were allowed to take cognizance of that particular question, still it
would not be competent to deal with the great international principle
involved, which affects the right in other cases of navigation and com-
mercial freedom as well as that of access to the Baltic. Above all, by
the express terms of the proposition it is contemplated that the consid-
eration of the sound dues shall be commingled with and made subordi-
nate to a matter wholly extraneous — the balance of power among the
Governments of Europe.

"While, however, rejecting this proposition, and insisting on the right
of free transit into and from the Baltic, I have expressed to Denmark
a willingness, on the part of the United States, to share liberally with
other ])Owers in compensating her for any advantages which (jommerce
shall hereafter derive from expenditures made by her for the improve-
ment and safety of the navigation of the sound or belts.''
President Pierce's third annual message, 1855.

The imposition by Denmark of sound dues on shipping of the United
States is regarded by the Government of the United States as incon-
sistent with just principles of international law.

Mr. Buchanan, Sec. of State, to Mr. Flenniken, Oct. 14, 1848. MSS. Instruct.;
Denmark. Mr. Marcy, Sec. of State, to Mr. Bedlnger, July 18, 18.53 ; March
12, 18,55 ; Nov. 3, 1855 ; Feb. 19, 1856 ; May 5, 18.5G. Ibid.

"By a convention, of April 11, 1857, between the United States and
Denmark, the navigation of the sound and belts is declared free to
American vessels; and Denmark stipulates that these passages shall
be lighted and buoyed as heretofore, and to make such 'improvements
in them as circumstances may require, without any charges to American
vessels and their cargoes, and to maintain the present establishment of
pilots, it being optional for American masters to employ them at reason-
able rates fixed by the Danish Government or to navigate their own
vessels. In consideration of these stii)ulations the United States agreed
to pay to Denmark 717,829 rix-dollars, or $393,011 in the currency of
the United States. Any other privileges granted by Denmark to any
other nation at the sound and belts, or on her coasts and in her harbors,
with reference to the transit by land, through Danish territory, of their
merchnndise, shall be extended to and enjoyed by citizens of the United
States, their vessels and property. The convention of April 26, 1826,
to become again binding, except as regards the article referring to the
sound <lues. United States Statutes at Large, vol. xi, p. 719."

Lawrence's Wheaton, ed. 1863, p. 335.

See further correspondence attached to President Pierce's messages above

quoted; House Ex. Doc. No. 108, 33d Cong., Ist sess.; 2 Benton's Thirty

Years in Senate, 362.
The subject <if sound dues is further discussed in Woolsey's Int. Law, $ .57, see

alsct North AuiericiD Review for Jan. 1857 ; 2 Fiore Droit Int., 2d ed. (trans.

by Autoine, 1885), ^ 724; 3 Calvo Droit Int., 3d ed., 342.
The correspondence with Denmark (1841-1854) relative to sound dues will be

found in British aud Foreign State Papers, 1854-'55, vol. 45, 807.
78

CHAP. II.] STEAITS. [§ 29.

'' This Government is not disposed to prematurely raise any question
to disturb the existing control which Turkey claims over the straits
leading into the Euxiue. It has observed the acquiescence of other
powers whose greater propinquity would suggest more intimate interests
in the usage whereby the Porte claims the right to exclude the national
vessels of other powers from the passage of those straits.

" But while this Government does not deny the existence of the usage,
and has had no occasion to question the propriety of its observance,
the President deems it important to avoid recognizing it as a right
under the law of nations.

" The position of Turkey with reference to the Euxine may be com-
pared to that of Denmark with reference to the Baltic, with the dif-
ference that the former is a sovereign over the %oil on both sides of
the straits, while Sweden owns the territory on the east of the sound
leading to the Baltic.

" Commercial nations from the earliest times until recently submitted
to the exactions of Denmark of what were called the sound dues, which
were ultimately abolished by the payment of a gross sum by each coun
trj-, proportionate to its tonnage, in the habit of passing the sound.

" The legality of the tax when it was levied was, at least, questionable,
and probably was acquiesced in from its antiquity merely, though, per-
haps, in part from a regard to the comparative w^eakness of Denmark
to resist its collection by the commercial world at large, or by the more
powerful nations singly.

" We are not aware that Denmark claimed the right to exclude foreign
vessels of war from the Baltic merely because in proceeding thither
they must necessarily pass within cannon-shot of her shores. If this
right has been claimed by Turkey in respect to the Black Sea, it must
have originated at a time when she was positively and comparatively
in a much more advantageous position to enforce it than she now is.
The Black Sea, like the Baltic, is a vast expanse of waters, which wash
the shores not alone of Turkish territory, but those of another great
power who may, in times of peace at least, expect visits from men-of-
war of friendly states. It seems unfair that any such claim as that of
Turkey should be set up as a bar to such an intercourse, or that the
privilege should in any way be subject to her sufferance.

" There is no practical question making it necessary at present to
discuss the subject, but should occasion arise when you are called upon
to refer to it, you will bear in mind the distinction taken above, and be
cautious to go no further than to recognize the exclusion of the vessels
as a usage."

Mr. Fish, Sec. of State, to Mr. MacVeagb, Maj^ 5, 1871. MSS. Inst., Turkey ; For
Rel., 1871. See 2 Fiore Droit int. (trans, in French by Antoine, 1885), § 748.

" The abstract right of the Turkish Government to obstruct the
navigation of the Dardanelles even to vessels of war in time of peace
is a serious question. The right, however, has for a long time been

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

claimed, and has been sanctioned by treaties between Turkey and cer-
tain European states. A proper occasion may arise for us to dispute
the aj)plicability of the chiim to United States menof-war. Meanwhile
it is deemed expedient to acquiesce in the exclusion."

Mr. Fish, Sec. of State, to Mr. Boker, Jan. 3, 1873. MSS. lust., Turkey.

"The United States are not a party to the convention which professes
to exclude vessels of war from the Dardanelles ; and while it is disposed
to respect this traditional sensibility of the Porte as to that passage,
the shot which it is supposed may have been intended for a national
vessel of this Government might, if it had been directed according to
the supposed intention, have precipitated a discussion if not a serious
complication." ^

Mr..Fish, Sec. of State, to Mr. Boker, Jan. 2o, 1878 ; MSS. lust., Turkey.

The Government of the United States will not tolerate exclusive
chiims by any nation whatsoever to the Straits of Magellan, and will
hold responsible any Government that undertakes, no matter on what
pretext, to lay any impost or check on United States commerce through
those straits.

Mr. Evarts, Sec. of State, to Mr. Osboru, Jan. 18, 1879. MSS. Inst., Chili.

While a natural thoroughfare, although wholly within the dominion
of a Government, may be passed by commercial ships, of right, yet the
nation which constructs an artificial channel may annex such conditions

to its use as it pleases.

The Avon, 18 Int. Rev.Rec, 165.

As to neutralized waters see infra, § 40.

V. RIVERS.

§ 30.

The message of President J. Q. Adams, on January 25, 1828, on the
navigation of the Saint Lawrence, with the accompanying papers, is
given in House Doc. Xo. 404, Twentieth Congress, first'session; 6 Am.
State Papers (For. Rel.), 757. Among these papers are the following:

Mr. Knsh, minister at London, to Mr. Adams, Secretary of State,
August 12, 1824: Mr. Clay, Secretary of State, to Mr. Gallatin, minister
at London, June 19, lS2(i, August 8, 1820; iMr. Gallatin to Mr. Clav,
Sei)tember 21, ]829, October 1, 1827.

The position taken by Mr. Clay, in his instructions to Mr. Gallatin, of
.June 19, 1820, was that the United States claimed the right of fi o
navigation of the Saint Lawrence as a strait dividing two sovereign-
ties. The British Government took the position that while not conceding
the claim as a matter of right, they would be willing to negotiate in
respect to it as a matter of convenience. The argument on the side
of the United States is given in the American paper entitled the
p:ighteenth Protocol; that on the side of Great Britain in the British
piiper entitled the Twenty-fourth l*ioto(H)]. (See also Ex. Doc. l^o, 43,
Twentieth Congress, first session.)
80

CHAP. II.] RIVERS. [§ 30.

By the reciprocity treaty of June 5, 1854, " tbe citizens and inhabitants
of the United States shall have the power to navigate the river Saint
Lawrence and the canals in Canada used as the means of communicating
between the great hikes and the Atlantic Ocean, with tlieir vessels,
boats, and crafts as fully and freely as the subjects of Her Britannic
Majesty, subject only to the same tolls and other assessments as now
are or may hereafter bfe exacted of Her Majesty's said subjects; it being
understood, however, that the British Government retains the right of
suspending this privilege on giving due notice thereof to the Government
of the United States. It is further agreed that if at any time the British
Government should exercise the said reserved right, the Government
of the United States shall have tbe right of suspending, if it think fit,
the operations of Article III of tbe present treaty, iu so far as the
province of Canada is affected thereby, for so long as the suspension of
the free navigation of the river Saint Lawrence or the canals may con-
tinue. It is further agreed that British subjects shall have the right
freely to navigate Lake Michigan with their vessels, boats, and crafts,
so long as the privilege of navigating the river Saint Lawrence, secured
to American citizens by the above clause of the present article shall
continue; and the Government of the United States further engages to
urge upon the State governments to secure to the subjects of Her
Britannic Majesty the use of the several State canals on terms of equality
with the inhabitants of the United States. And it is further agreed
that no export duty, or other duty, shall be levied on lumber or timber
of any kind cut on that portion of the American territory in tbe State of
Maine watered by tbe river Saint John and its tributaries and floated
down that river to the sea when the same is shipi)ed to the United
States from the pi'ovincc of New Brunswick,"

This treaty was terminated March 17, 1866, under resolution of Con-
gress of Januarj^ 18, 1865.

"A like unfriendly disposition has been manifested on the part of
Canada in the maintenance of a claim of right to exclude the citizens
of tbe United States from the navigation of the Saint Lawrence. This
river constitutes a natural outlet to tbe ocean for eight States, with an
aggregate population of about 17,600,000 inhabitants, and with an ag-
gregate tonnage of 661,367 tons upon the waters which discharge into
it. The foreign conjmerce of our ])orts on these waters is open to
British competition, and the major part of it is done iu British bottoms.

" If tbe American seamen be excluded from this natural avenue to
the ocean, the monopoly of the direct commerce of the lake ports with
the Atlantic would be in foreign hands; their vessels on transatlantic
voyages having an access to our lake ports which would be denied to
American vessels on similar voyages. To state such a proposition is
to refute its justice.

"During the administration of Mr, John Quincy Adams, Mr. Clay
S. Mis. 16L>— VOL. I 6 '81

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

un;ms\vei;il»ly demonstrated the natural ri^ht of the citizens of the
United States to the navigation of this river, claiming that the act of
tli(^ congress of Vienna, in opening the Rhine and other rivers to all
nations, showed the judgment of European jurists and statesmen that
the inhabitants of a country through which a navigable river passes
have a natural right to enjoy the navigation of that river to and into
the sea, even though passing through the territoHes of another power.
This right does not exclude the coequal right of the sovereign possess-
ing the territory through which the river debouches into the sea to
make such regulations relative to the police of the navigation as may
be reasonably necessary; but those regulations should be framed in a
liberal si)irit of comity, and should not impose needless burdens upon
the commerce which has the right of transit. It has been found in
practice more advantageous to arrange these regulations by mutual
agreement. The United States are ready to make any reasonable ar-
rangement, as to the j^olice of the Saint Lawrence, which may be sug-
gested by Great Britain.

" If the claim made by Mr. Clay was just when the population of
States bordering on the shores of the lakes was only 3,400,000, it now
derives greater force and equity from the increased population, wealth
production, and tonnage of the States on the Canadian frontier. Since
Mr. Clay advanced his argument in behalf of our right the princii)le for
which he contended has been frequently, and by various nations, recog-
nized by law or by treaty, and has been extended to several other great
rivers. By the treaty concluded at Mayence, in 1S31, the Rhine was
declared free from the point where it is first navigable into the sea.
By the convention between Spain and Portugal, concluded in 1835, the
navigation of the Douro, throughout its whole extent, was made free for
the subjects of both crowns. In 1853 the Argentine Confederation by
treaty threw open the free navigation of the Parana and the Uruguay
to the merchant vessels of all nations. In 185(5 the Crimean war was
closed by a treaty which provided for the free navigation of the Danube.
In 1858 Bolivia, by treaty, declared that it regarded the rivers Amazon
and La Plata, in accordance with fixed principles of national law, as
highways or channels, opened by nature for the commerce of all nations.
In 1859 the Paraguay was made free by treaty, and in December, 1866,
the Emperor of Brazil, by imperial decree, declared the Amazon to be
open, to the frontier of Brazil, to the merchant ships of all nations.
The greatest living British authority on this subject, while asserting
the abstract right of the British claim, says : ' It seems difficult to deny
that Great Britain may ground her refusal upon strict law, but it is
equally difficult to deny, first, that in so doing she exercises harshly an
extreme and hard law ; secondly, that her conduct with respect to the
navigation of the Saint Lawrence is in glaring and discreditable incon-
sistency with her conduct with respect to the navigation of the Missis-
sippi. On the ground that she possessed a small domain, in which the
82

CHAP. II.] RIVERS. [§ 30.

Mississippi took its rise, she insisted on the right to navigate the entire
volume of its waters. On the ground that she possesses both banks of
the Saint Lawrence, where it disembogues itself into the sea, she denies
to the United States the right of navigation, though about one-half of
the waters of Lakes Ontario, Erie, Huron, and Superior, and the whole
of Lake Michigan, through which the river flows, are the property of
the United States.'

'• The whole nation is interested in securing cheap transportation
from the agricultural States of the West to the Atlantic sea-board. To
the citizens of those States it secures a greater return for their labor ;
to the inhabitants of the sea-board it affords cheaper food ; to the na-
tion, an increase in the annual surplus of wealth. It is hoped that the
Government of Great Britain will see the justice of abandoning the
narrow and inconsistent claim to which her Canadian provinces have
urged her adherence."

President Grant's second annual message, 1870.

The treaty of Washington of May 8, 1871, provides as follows:

"Article XXVI.

" The navigation of the river St. Lawrence, ascending and descend-
ing, from the forty-lifth parallel of north latitude, where it ceases to
form the boundary between the two countries, from, to, and into the
sea, shall forever remain free and open for the purposes of commerce
to the citizens of the United States, subject to any laws and regula-
tions of Great Britain, or of the Dominion of Canada, not inconsistent
with such privilege of free navigation.

'^The navigation of the rivers Yukon, Porcupine, and Stikine,
ascending and descending, from, to, and into the sea, shall forever re-
main free and open for the purposes of commerce to the subjects of
Her Britannic Majesty and to the citizens of the United States, sub-
ject to any laws and regulations of either country within its own terri-
tory, not inconsistent with such privilege of free navigation.

"Article XXVII.

"The Government of Her Britannic Majesty engages to urge upon
the Government of the Dominion of Canada to secure to the citizens
of the United States the use of the Welland, St. Lawrence, and other
canals in the Dominion on terms of equality with the inhabitants of the
Dominion; and the Government of the United States engages that the
subjects of her Britannic Majesty shall enjoy the use of the St. Clair
Flats Canal on terms of equality with the inhabitants of the United
States, and further engages to urge upon the State governments to
secure to the subjects of Her Britannic Majesty the use of the several
State canals connected with the navigation of the lakes or rivers trav-

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

ersed by, oi' conti^iiou.s to the boimdaiy line between the iwssessious
of the hijjh contracting parties, on terms of equality with the inhabi-
tauts of the United States.

"ARTICLE XXVIII.

"The navigation of Lake Michigan shall also, for the term of years
mentioned in Article XXXIII of this treaty, be free and open for the
l»uri)oses of commerce to the subjects of Her Britannic IMajesty, sub-
ject to any laws and regulations of the United States or of the States
bordering thereon not inconsistent with such privilege of free navi-
gation.

"Article XXIX.

"It is agreed that, for the term of years mentioned in Article
XXX HI of this treaty, goods, wares, or merchandise arriving at the
l)orts of Xew York, Boston, and Portland, and any other ports in the
United States which have been or may, from time to time, be specially
designated by the President of the United States, and destined for
Her Britannic Majesty's possessions in North America, may be en-
teied at the proper custom-house and conveyed in transit, without the
l)ayment of duties, through the territory of the United States, under
such rules, regulations, and conditions for the protection of the reve-
nue as the Government of the United States may from time to time
prescribe; and under like rules, regulations, and conditions, goods,
wares or merchandise may be conveyed in transit, without the pay-
ment of duties, from such possessions through the territory of the
United States for export from the said ports of the United States."

" The ocean is free to all men, and their rivers to all their inhabi-
tants. * * ♦ Accordingly, in all tracts of country united under the
hame ])olitical society, we find this natural right universally acknowl-
etlged and protected by laying the navigable rivers open to all their
iidiabitants. When their rivers enter the limits of another society, if
the right of the upper inhabitants to descend the stream is in any case
obstructed, it is an act of force by a stronger society against a weaker,
condemned by the judgment of mankind."

Report of Mr. Jefferson, March 18, 1792. 7 Jeff. Works, 577.

" The Roman law, which, like other municipal laws, ])laced the navi-
gation of their rivers on the footing of nature, as to their own citizens,
by declariug them public (flumina publica sunt, hoc est populi Eomani,
Inst. 2, t. 1, § 2). declare also that the right to the use of the shores
was incident to that of the water. Ihid.^ §§ 1? 3, 4, 5."

Ih. 7 Jeff". Works, ijSO.

Mr. Jefferson's instructions of March I'i, 1792, to Messrs. Carmichael and
Short, as to the uavijiation of the Mississippi River, and as to riparian
rights, are given in 1 Am. State Papers (For. Rel.), 252.

As to title to the Mississippi, see Mr. J. Q. Adams to Mr. De Ouis, Oct. 31,
18ia. Supra, $ 5.
81

CHAP. II.] RIVERS. [§ 30.

The question of the conflicting rights of Spain and of the (JnitiMl
States, in 1804, to the Mississippi River, is discussed at great length
in a correspondence between Messrs. Monroe and Armstrong, minis-
ters of the United States to Spain and France, and the Spanish and
French Governments.

2 Am. State Papers (For. Rel.), 596, j:

The right to peacefully navigate the Amazon River belongs, in inter-
national law, to all maritime states.

Mr. Marcy, Sec. of State, to Mr. Trousdale, Aug. 8, 1853. MSS. lust., Brazil.

" I have the honor to inform you that I have received a telegram from
the ministry of foreign relations of the United States of Mexico, d;!ted
yesterday at the city of Mexico, in which 1 am informed that the (;om-
manderof the United States troops in Roma, Texas, says that he has in-
structions from the War Department to occnpy the islands of Morteritos
and Sabinos.

" As Mexico has always had possession of that island, my Government
instructs me to request that of the United States of America that mat-
ters may remain in statu quo nntil both Governments come to an agree-
ment ui)on this siibject.

"A note from this legation, having reference to a circumstance rela-
tive to that island, was sent to your Department the 13th of March last,
which was answered by you on the 8th of April following."

Mr. Romero, Mexican Minister, to Mr. Frelingbuysen, Sec. of State, May 24j
1884. MSS. Notes, Mex. Leg., For. Eel., 1884.

"I have the honor to inform you that I have to-day received a note
from the foreign office of the United Mexican States, dated Mexico, JMr.y
23 ultimo, in which I am informed that according to information ])os-
sessed by that office the islands of Morteritos and Sabinos, referred to
in my note to yonr Department of 24th May, belong to Mexico by rea-
son of having remained when the dividing line between the two coun-
tries was laid down in conformity with article 5 of the boundary treaty
of the 2d of February, 1848, on the right yide of the deepest channel of
the river, for which reason they have since then remained in the i)os-
session of Mexico, forming a part of the niunicipality of Mier, in the
State of Tamanlii)as.

" It is true that by reason of a recent change in the currents of the
Rio Bravo both of those islands are now on the left bank of the greater
arm and deeper channel of the river ; but as, in the opinion of the Mex-
ican Government, the dividing line between the two countries is that
which was laid down by the mixed commission, which met in conlorni-
ity with the treaty of February 2, 1848, there can be no doubt with re-
spect to the legitimate ownership of tliose islands.

" I think itnnnecessary to say to you that these islands are those
numbered 12 and 13, of which Maj. William H. Emory, chief of the bound-
ary commission of the United States, speaks in his report to the Sec
retary of the Interior, dated in this city July 29, 185G, page 65, volume 1.

" In view of these facts, the Government of Mexico hopes that the
Government of the United States will recognize the right of Mexico to
those islands which is derived from an existing treaty between the two
countries, and from the demarkation of the line made in conformity
with the aforesaid treaty and supported by an uninterrupted possession
of nearly forty years."

Mr. Romero, Mexican Minister, to Mr. Frelingliuyseu, Sec. of State, ,Tuuc 2,
1884. Ibid.

»^S 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

"llerciTiii}; to tlic notes wliioli I addressed to your Department on
the loth of March and the l*4th of May last, and on the 2d instant, in
reference to the islands of Morteritos and Sabinitos, in the Kio Grande,
of which .Mexico has been in possession for the reason that she consid-
ered tbeni as an integral part of her territory, I have the honor to inform
you that I have this day received from the department of foreign rela-
tions of I\Iexico various documents showing the rights of Mexico to the
stud islands. I inclose a coi>y of the principal ones of these documents
and of a drawing which was sent as an inclosure to the report of Engi-
neer Garliab=, oi April 19, 1880, together with an index showing their
dates and giving a brief outline of their contents.

'vlt appears from ihe said documents that the aforesaid islands were
to remain on the right of the deepest channel of the Eio Grande, when
the demarkation of limits was made according to the treaties of Febru-
ary 2, 1848, and December 30, 1853, belonging consequently to Mexico,
according to the report of Engineer Ignacio Garhas (inclosure No. 4);
that, among various changes that took i)lace in the bed of the river,
owing to freshets in the year 1865, the island of Morteritos became
united to another which was quite near it, but the new island remained
on the right of the deepest channel of the river; that Mexicans were
the owners of the island contiguous to the right bank, and citizens of
the United States the owners of the other, but that when both were
united all the parties interesced made an agreement on the 9th of March,
1874, before the court at Mier, whereby Mexicans remained in posses-
sion of the whole island ; that the island has been in the possession of
Mexico since that time; judicial acts being exercised there, such as the
establishment of a section of vigilance, and grain being sown by Mexi-
can citizens ; that another change which took place in the deepest chan-
nel of the Rio Grande left the island of Morteritos on the left side of
the channel, and for this reason, on the 20th of January last, several
armed persons from Koma, Tex., headed by W, W. Bohorman, the
judge at Roma, in Starr County, Texas, invaded the island of Morteri-
tos, destroyed several inclosures, drove out the Mexican owners, and
divided their property among themselves; and that a short time before
several residents of Roma had appealed to the judicial authorities of
Texas, requesting them to declare that the island belonged to them by
accession.

"I shall not now stop to speak of the incident relative to private
property on the island of Morteritos, which, as appears from the in-
closed document, was declared to belong to Dona Guadalupe Garcia,
according to the decision of the supreme court of justice of Mexico,
dated October 24, 1830, because in this note I am simi)ly endeavoring
to demonstrate its nationality; that is to say, that it forms a part of
the territory of Mexico.

"Without prejudice to the subsequent transmission to you of the
report of the engineer who has been sent by the Government of Mexico
to the I\io Grande to make a study of this subject on the spot, together
with such otner data as I may hereafter receive from my Government,
I have the honor to inform you that the department of foreign relations
of the United States of ^Mexico has informed me, by a note bearing-
date of the 28th of May last, that—

'"In the inclosed documents there are irrefutable and fall data, show-
ing unmistakably the right of eminent domain of Mexico to the island
of Morteritos, amcAg them the survey and the sounding made by our
consul at Rio Grande City, the agreement made by the inhabitants of
the two countries before the court at Mier with regard to the posses-
86

CHAP. II.] RIVERS. [§ 30.

siou of the land on the island, the report of Eufjincer Gartias, and the
fact that a section of vioilance was established on the island withont
any attempt having hitherto been made by the Government of the
LTuited States to exercise jurisdiction on that island, or to interfere
with that of the Mexican authorities.'

"In view of these considerations, the Government of Mexico instructs
me 'to request that of the United States to issue the necessary orders
to the end that the free action of the Mexican authorities on that island
may not be obstructed.' "

Mr. Romero, Mexican Minister, to Mr. Frelinghuysen, Sec. of State, June 12,

1884 ; Ibid.
For the papers .submitted with this note by the Mexican Minister in support of

the claim of liis Government, see For. Rel., 1884, pp. 382-39:^.

"Your notes of the 13th of March, 24tli of May, and 2d and 12th of
June, of the present year, have presented the question of the disputed
ownership of two islands in the Rio Bravo, near Roma, Tex. This
question has received the careful consideration due to its importance,
and I have now the honor to acquaint you with the reply of this Gov-
ernment to the representations made on behalf of that of Mexico, and
especially to the detailed case presented with your note of 12th June.

"The two islands, as you state, are known in Spanish as Morteritos
and Sabinitos. and in your note of the 2d of June it is assumed that
they are the islands designated as Nos. 12 and 13 at the time of the
original survey.

" This is, however, incorrect of Sabinitos Island, which appears in
the maps of the original survey made by the boundary commission in
1853 as No. 14, and is therein credited to Mexico. As the papers sub-
mitted by you show no question of importance aflectiug the island of
Sabinitos (No. 14) it may be laid aside for the present.

"The question seems to be confined to the island known as Morteritos,
which appears in the charts of the boundarv commission as Beaver
Island, No. 13.

"This island was formerly the most southerly and the larger of two
pod-shaped islands lying in a bend of the river near the Texan town of
Roma. The channel, never at any time navigable, which formerly sep-
arated the two islands is now' dry, and the channel to the northward of
the twin island so formed is the widest, and at the present tinje the
deepest of the two arms of the river.

" The Mexican claim to jurisdiction rests briefly on the following
bases :

"]. A scientific report of the engineer, Garfias, dated 16th April,
1880, which argues that the present deepest channel to the northward
must always have been the deepest (and therefore under the treaty of
Guadalupe-Hidalgo the boundary line between the two countries) in
pursuance of an observed peculiarity of rivers by which the deepest
flow of water follows the hollow of a curve in the river bed.

" 2. Ownership by Mexican citizens, and an agreement among said
owners, in March, 1874, whereby the island of Morteritos and its accre-
tions were confirmed to them under the authority of Mexico.

" The second of these points is to be dismissed forthwith from con-
sideration, for this Government does not admit, nor if the case were re-
versed is it to be supposed that the Mexican Government would admit,
the right of alien owners of land to transfer, und*:* color of any judicial
agreement whatsover, the territorial domain over their estates to the
jurisdiction and sovereignty of the nation to whom such individuals

§ ,80.] SOVEREIGNTY OVER WATER. [CHAP. II.

owe allepance. This position is, moreover, wholly opposed to the con
tentioii of the ^Mexican Government itself, that the territorial jnrisdic-
tions established on behalf of the respective parties to the treaty of
Gaadalupe-Ilidalgo remain forever as originally fixed nnder that com-
l)act, and are not to be affected by any abrupt changes in the course of
the river Bravo.

" This reduces the question to one of simple fact, namely, the ascer-
tainment of the boundary channel fixed by the commissioners under
the treaty of Guadalupe-Hidalgo.

"To the end of ascertaining that fact, an examination of the original
records and charts of the commissioner of survey has been made by
Brig. Gen. W. H. Emory, of the United States Army, under whose su-
pervision, as commissioner on the part of the United States, the original
survey and determination of the boundary was efiected.

" That officer, under date of the 19th ultimo, reports as follows:

u * * * gy reference to original notes and maps in State Depart-
ment, I find Islands j^os. 12 and 14 were assigned to Mexico, and 14, I
believe to be Island Sabinos [Sabinitos] referred to by Seiior Eomero.

" Island Xo. 13 was assigned to the United States. It is no doubt
the island called by Seuor Romero Morteritos, and by me Beaver Is-
land. I say of that island, in my report, that ' the waters of the Bio
Grande are divided at that point into three parts, and the channel that
lies nearest to the Mexican shore is so narrow that steamers can with
difficulty pass through it, yet the branches, by reason of their shallow-
ness, are wholly impassable for them. An attempt was made by the
Mexican local authorities to arrest a steamboat in its passage through
the narrow channel, but the actual experience of the navigator proved
it to be the true channel and consequently the boundary between the
two countries.

" It was farther agreed between the commissioners that in case the
channel changed, the right of navigation should remain unimpaired to
both countries, but the jurisdiction of the land should remain as we
had arranged.

" So far as the question of territorial jurisdiction in the event of a
change in the channel is concerned, the agreement of the commissioner
remains merely an expression of opinion, which, however valuable as
an enunciation of a theoretical principle, has not been confirmed as
between the two Governments. That of Mexico has, however, on
various occasions, put forth this principle as its own, and a proposal
has been made through your predecessor, Senor Mariscal, and through
you, to negotiate a formal conventional agreement on that basis in
settlement of disputes touching the true river boundary under the
treaty of Guadalnpe-Hidalgo. That proposal is now under attentive
consideration.

"As to the original ownership of the two islands known by the United
States commission as Beaver Islands, being the island known to your
Government as Moiteritos, and the smaller island lying parallel with
Morteritos, and to the north of it, there can be no doubt that they were
by the survey assigned to the United States.

"Against the actual record of the commission (the original charts of
which you have been afforded an opportunity of inspecting in person
in company with General Emory) the speculative and scientific report
of Engineer Garfias and his survey and soundings, made seventeen
years after the original official determination of the boundarv channel,
can have no weight whatever, being based on an evidentlv changed
condition of things, whereby the old middle water-course between the
88

CHAP. II.] RIVERS. [§ 30.

two islands liiis disappeared, aud the most northerly of the three chan-
nels has been dellected and deepened in the process of time.

"This Goveinment must deny the implication conveyed in your note
of June 12, and its accompaniments, that the United States have tacitly
acquiesced in the jurisdictional rij^jhts from time to time assumed by
the Mexican local authorities over the territory covered by the islands
in question. No case in point has arisen to call the attention of this
Government to the question. The owners of the land were Mexican
citizens, as it api)ears, and their acquiescence in the Mexican claims of
jurisdiction over their land, although natural under the circumstances,
was wholly devoid of any confirmatory power as against the rights of
the United States under the treaty. It was not until very recently,
when the action of the Mexican authorities of Mier developed a wholly
untenable claim to jurisdiction ever a broad tract of low-lying land on
the United States bank of the river, which land it was pretended had
at some time become united with one of the islands through the filling
up of the water-way between them, that a case calling for investigation
and action was presented, involving also, as it does, the question of the
true ownership of the island claimed to have been enlarged by the ac-
cretion of United States territory. The rights of the United States in
the premises remained, perhaps, dormant, but without laches on their
part, and, on the issue being revived, those rights revive, too, in all
their force.

" Touching the reference in your note to the statement found on page
65 of the Rei)ort of the Boundary Survey, that 'Islands Nos. ]2 and
13, between Kinggold Barracks and Roma, both fall to the United
States,' it should be here stated that the report is erroneous, through
a typographical mistake. The original charts and notes show that
Island No. 12 is a smail island named 'Green Key Island' on the
charts, situated in an abrupt bend of the river, about half way between
Fort Ringgold and Morteritos Island. Island No. 13, as already shown,
comprises the twin Beaver Islands, whereof the larger and more south-
erly was calle'd by the Mexicans Morteritos. The island known to
both parties as Sabinitos (or Sabinos) is marked No. 14 07i the chart,
and lies a short distance above Roma.

" In conclusion I have the honor to inform you, in answer to your
several notes, that the facts and record of the case warrant and de-
mand that the Government of the United States shall regard its ter-
ritorial jurisdiction over the island of Morteritos, otherwise Beaver
Island (No. 13), as established by the boundary comnjission under the
treaty of Guadalupe-Hidalgo, and, consequently, that the Mexican
pretension to that island and to accretions thereto from the left or
United States bank of the Rio Grande shall be denied."

Mr. Freliughuyseu, Sec. of State, to Mr. Romero, July 10,1884. MSS. Notes,
Mexico ; ibid.

" By instruction No. 550, of the 23d of April last, you were ■ ac-
quainted with a dispute then lately arisen concerning the legitimate
jurisdiction over certain islands in the Rio Grande (Rio Bravo) near
Roma, Tex., and you were directed to present the matter to the Mex-
ican Government and ask consideration of our just claim to jurisdic-
tion in the prei^jises.

" Since then the Mexican Government has made, through Senor
Romero, under date of June 12 last, a counter complaint, claiming

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

Morteritos Tslaiul as Mexican territory, with its accretions, and pro-
testing against any attempt on tbe p;irt of the United States to exf^r-
cise authority over tliat island.

" The note of Mr. Romero and its inclosures, being very voluminous
and not yet wholly translated, could not be sent to you herewith with-
out involving inconvenient delay. Copies will, however, go to you as
soon as possible, to complete your record.

"The question appearing to be one of simple fact, to be settled by
the records of the boundary commission, under the signatures of botli
commissioners, now on file in this Department, I requested the Secre-
tary of War to direct Brig. Gen. W. H. Emory, U. S, Army, the United
States commissioner on the original survey, to examine the records and
charts thereof. General Emory has done so, Senor Romero having
had at the same time opportunity to personally inspect the records
and charts. The general's report removes all ground for doubt that
Morteritos belongs to the United States, under the prescriptions of
the treaty of Guadalupe-Hidalgo.

" I have accordingly replied to the Mexican contention by a note to
Senor Romero, of which I inclose a copy for your information.

" The question would appear to have been in part founded on a case
of mistaken identity, in assuming that two small twin islands below
and near to Roma, and separated at the time of the survey by a shal-
low water-course now believed to be filled up, were the Morteritos and
Sabinos Islands of the Mexican contention and identical with islands
Xos. 12 and 13. It seems clear that Sabinitos (or Sabinos) is a large
single island, lying some distance above Roma, and is acknowledged
Mexican territory both by the records of the survey and in the ab-
sence, so far as known here, of any occasion for dispute in respect
thereof. Island No. 12, to which Seiior Romero refers in one of his
notes on the subject, lies lower down the river, near Ringgold Bar-
racks, is styled on the survey charts Green Key Island, and likewise
appears to belong to Mexico without dispute.

" It is apparently in respect only of the small twin islands, known on
charts both as ' Beaver Islands' and as 'Island ^o. 13,' that any dis
pute exists. The larger of these, lying nearest to the Mexican shore,
appears to be known to the Mexicans as 'Morteritos.' The other
smaller island of the pair may or may not be locally known as 'Sabi
nos.' It bears no separate name on the charts. The fact is, however,
wholly immaterial, for both the islands are by the two commissioners
a.4<igned to the United States.

"After reading my note to Seiior Romero and familiarizing yourself
with the ground therein taken, you will seek a conference with the
Mexican secretary for foreign affairs on the subject. You will point
out to him that under whichever aspect it be viewed, whether as rest-
ing on a change in the deepest channel subsequent to the assignment
90

CHAP. II.] RIVERS. [§ 30.

of the survey, or on the allegiance of the reputed Mexican owners of
the laud and on any agreement among them of which the Mexican
courts may liave taken cognizance, the Mexican claim is completely at
variance with the ground taken by the Mexican Government itseli", that
the boundary fixed by the survey is definitive, and not to be changed.
You may advert to the proposal made to this Government by Mr.
Eomero (in a note dated 31st May), to review the negotiation proposed
in 1875 by Senor Mariscal to Mr. Fish for a convention to settle bound-
ary disputes growing out of changes in the channel of the Bravo by
declaring that no such change shall affect the actual boundary fixed by
the survey, and you may observe that this Government can hardly be
expected to attach much weight to that proposition if, in the first case
of dispute arising, the Mexican Government is found to adopt a diamet-
rically opposed theory. You may also find it convenient to advert to
the circumstance, shown by the inclosures to my No. 520, that the
Mexican owners claim the subsequent accretions to Morteritos as be-
longing to them, and, consequently, to the territorial jurisdiction of
Mexico also, and comment on its untenable character ; for even if Mor-
teritos Island were Mexican territory, which the record of the survey
shows it is not, the annexation of United States territory by accretion
or by change of channel could not be recognized.

" You will further point out that in this contention we have the right
to deem ourselves* the aggrieved party. The Mexican authorities at
Mier have assumed to exercise territorial jurisdiction, not merely over
the island of Morteritos, but over part of the territory of the United
States which has since accidentally been joined to that island by the
closing of a water-way. Our efltbrt to assert the jurisdictional power be-
longing to us of right, has been resented as an unwarrantable interfer-
ence and made the occasion of a complaint which proves to be baseless.
Notwithstanding this, the Government of the United States promptly
acceded to a request of the Mexican minister, and directed its authori-
ties on the frontier to avoid all pretext of conflict with the Mexican au-
thorities until the question of ownership should be amicably settled. In
communicating to the Secretaries of the Treasury and of War the con-
clusion of this Government that Morteritos is wholly of the domain of
the United States, the request that the officers of this Government in
that quarter should continue to avoid forcible assumption of jurisdiction
has been renewed.

" Under all these circumstances, you will formally ask that the Mex-
ican Government forthwith cease any claim to territorial jurisdiction
over the island of Morteritos, and cause to be duly respected the bound-
ary line to the south of that island, and between it and the Mexican
bank, as determined by the United States and Mexican commissioners
in the survey.

" Upon the removal of this question from the field of debate, this Gov-

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

ernineut will have ])leasure in takin.u' up aiid considering Senor Marls-
cars original proposal, now revived bj^ SeQor Romero, for negotiating' a
formal convention in settlement of like disputes in future."

Mr. Frelinghiiysen, Sec. of State, to Mr. Morgan, July 11, 1884. MSS. Instr.,
Mexico ; ibid.

"I have to acknowledge the receipt of your dis])atch, Xo. GOO, July
11, 1884, in regard to a dispute concerning the legitimate jurisdiction
over certain islands in the Rio Grande near Roma, Tex., and in which I
was instructed, to 'formally ask that the Mexican Government forth-
with cease any claim to territorial jurisdiction over the i.slands of Mor-
teritos, and cause to be duly respected the boundary line to the south
of that island and between it and the Mexican bank, as determined by
the United ^7rates and Mexican commissioners in the survey.'

" I was unable to obtain an interview with Senor Fernandez until the
31st ultimo.

" I then informed him that, as he was aware, a question had lately
arisen between our respective Governments concerning the legitimate
jurisdiction over certain islands in the Rio Giande (Rio Bravo) near
Itoma, Tex., and the principal contention, and the one to which I would
at i)resent confine myself, was the island of ' Morteritos,' the Mexican
Government claiming that the island with its accretions belongs to
Mexico, while the United States contends that the island, or what was
the island, forms part of the territory of the United States.

" I said that the boundary commissioners appointed under the treaty
of Guadalupe Hidalgo placed this island within the jurisdiction of the
United States, and that it having been joined by accretion to. the north
bank of the river, Mexico claimed not only the island but the accre-
tion referred to, and that the Mexican authorities at ]Mier had assumed
to exercise a jurisdiction not merely over the island but over that part
of the territory of the United States which has since been accidentally
joined to that island (Morteritos) by the closing of a waterway.

" I further said that the eflbrts of the United States to assert juris
dictional i)ower belonging to them of right has been resented as an un-
warrantable interference and made the occasion of a complaint by
Mexico which proves to be baseless. aSTotwithstanding this, however,
the Government of the United States promptly acceded to a request of
the :\rexican minister at Washington, and directed its authorities on the
frontier to avoid all pretext of conflict with the Mexican authorities
until the question of ownership should be amicably settled, and that
even now in communicating to the Secretaries of the Treasury and of
War the conclusion arrived at by the United States Government that
the island was wholly the domain of the United States, the request had
been again renewed that the officers of the Government in that quarter
should continue to avoid forcible assumption of jurisdiction.

" I further said that the Mexican claim to jurisdiction appeared to
rest upon two grounds :

" 1. A scientific report of the engineer, Garfias, dated IGth April,
1880, which argues that the ])resent deejjcst channel to the northward
must always have been the deepest (and therefore under the treaty of
Guadalupe Hidalgo the boundary line between the two countries') in
pursuance of an observed peculiarity of rivers by which the deepest
How of water follows the hollow of a curve in the river bed.

"2. Ownership by Mexican citizens, and an agreement among said
02

CHAP. II.] KIVEKS. [§ 30.

owners ih March, 1874, wliereby the island of Morterito.s and its accre-
tions were confirmed to them under the authority of ^Mexico.

'' I informed Sefior Fernandez that the seeontl of these points must
be dismissed from consideration, as the (lovernment of the United
States did not admit the right of owners of hmd to transfer under color
of any judicial agreement whatever the territorial domain over their
estates to the jurisdiction and sovereignty of the nation to whom such
individuals owe allegiance.

"1 then said that this reduced the question to one of sim])le fact,
namely, the ascertainnjent of the boundary channel fixed b^- the com-
missioueis under the treaty of Guadalupe-Hidalgo. This, 1 said, as I
had renjarked before, was done by the said commissioners, they having
j)Iaced the island, at the time of the survey, withiu the jurisdiction of
the United States.

"I informed Sehor Fernandez that I had been instructed to formally
ask that his Government Ibrthwith cease any claim to territorial juris-
diction over the island of Morteritos, and cause to be duly respected
the boundary line to the south of that island and between it and the
]\Iexican bank, as determined by the United States and Mexican com-
missioners in the survey.

''I said to Seiior Fernandez that on the 31st May last Seuor Eomero,
the Mexican minister at Washington, had proposed to you to revive
the pro]iosed negotiations made by Sefior Mariscal to Mr. Fish in the
year 187o for a convention to settle boundary disputes growing out ot
changes in the channel of the Bravo, and declaring that no such change
shall afl'ect tiie actual boundary fixed by the survey.

"1 said that upon the removal of the question of the island of Morteri-
tos from the field of debate 1 was authorized to say that the Government
of the United States would have pleasure in considering Sefior Maris-
caFs original })roposition, which has lately been renewed by Sefior Ro-
mero, as above stated, for negotiating a formal convention for the set-
tlement of like disputes in future, but at the present moment, however,
tlie Governm(>nt ot the United States could hardly be expected to at-
tach much weight to that ])roi)Osition if in the first case of disi)ute aris-
ing the Mexican Government was found to a adopt a diametrically
opposite course.

'• Sehor Fernandez informed me that the question of the proprietorship
of the island of Morteritos had been submitted to the proper Depart-
ment, and that as soon as he should leceive a re|)ort therefrom he
would inform me of the decision thereof.

"1 suggested to him that as the question was one of importance I
would be glad to receive his reply at as early a date as possible.

" Sefior Fernandez requested me to transmit to him a memorandum
of the interview which we had had upon the subject, which I did on
the day following (August 1, 1884), which is substantially as reported
in the foregoing.

''1 have seen Sefior Fernandez upon several occasions since the 31st
ultimo, but he has said nothing to me upon the subject further than that
he had received no report from the Mexican authorities with reference
to the island, and 1 therefore deem it projier to let you see that I have
c()mi)lied with your instructions."

Mr. Morgan to Mr. Frolinj^diiiyscu, See;, of State, Aug. 11, 1884. MSS. Dispatches,
Mexico ; ihid.

"1 have the honor to inform you that I received in due time and
transmitted to my Government your note of the 10th July last, in

§ 30.] SOVEREIGNTY OVER WATER. [CHAP. II.

reply to those which 1 addressed to the Department on the 13th of
March and the 24th of the ])receding May, and the 2d and 12th of
June, with respect to the question raised touching the ownership of the
ishmds of Morteritos and Sabinitos, situated in the Rio Bravo.

"You were ])leased to state in the aforesaid note that the island of
Sabinitos api)eared marked as N^o. 14 in the maps of the original sur-
vey made by the boundary commission in 1853, and that it remained
on tlie ^Mexican side, for whicb reason there cau be no doubt thereto,
and with respect to the island of Morteritos or Beaver Island or Island
Xo. 13, you state:

"That the facts and record of the case warrant and demand that
the Government of the United States shall regard its territorial juris-
diction over the island of Morteritos, otherwise Beaver Island (No. 13),
as established by the boundary commission under the treaty of Guad-
aln])e- Hidalgo.

"To the end that the Mexican Government might better examine
the bases presented by you in order to reach the conclusions which
you expressed, I solicited, together with General Emory, permission
to examine the original maps of the mixed boundary commission which
exist in the Department of State, since I could not here consult the
co])ies existing in Mexico.

"There appeared to be an evident confusion in the name of Island
No. 13, and it did not clearly appear whether it was or was not the
island of Morteritos.

"A careful examination on this subject having been made by my
Government, the President has decided not to insist upon the rights
of Mexico over the island of Morteritos in the supposition that it is
Island No. 13, or Beaver Island.

"The bases of this decision rest upon the stipulations of the fifth
article of the treaty of Guadalupe- Hidalgo of February 2, 1848, that the
dividing line between our two countries from the Gulf of Mexico to Paso
del Norte should be the center of the Rio Grande, and that where this
river had more than one channel the line should follow the deepest.
This circumstance being borne in mind by the boundary commission in
laying down the line, the channel which lay to the south of Island No.
13, or Morteritos, or Beaver Island, left this island upon the side of the
United States.

"As this is the basis presented by the Government of the United
States to defend its rights to that island, it thus recognizes that the
limit between the two Republics are those fixed by the treaty of Guada-
lupe-Hidalgo, such as were laid down by the mixed commission, with-
out having been altered by the changes occasioned by the current of
the river, whether in its margins or the deepest of its channels.

" It is very satisfactory to me to see that in this important point there
is an uniformity of views and principles between our two Governments.

"I cannot end this note without calling your attention to the good
faith and justice of the Government of Mexico in the present case, since
instead of leaving this matter pending, or proposing that it should be
decided l)y the treaty which it has submitted for the consideration of
the United States, it has acted with loyalty in recognizing their rights
without reserve."

-Mr. Romero, Mexican Minister, to Mr. Frelinghuyseu, Sec. of State, Oct. 9.
lHf^4. MSS. Notes, Mex. Leg. ; ibid.

"The State of Texas has municipal jurisdiction under the law of na-
tions over the Rio Grande to the middle of the stream, so far as it
94

CHAP. II.] KIVEES. [§ 30.

divides Texas from Mexico. This is subject to such iuteruational juris-
diction as the United States may have over .such waters under the
Constitution of the United States, and to the right of the free use by
Mexico of the channel."

After quoting Article V of the treaty of Guadalupe Hidalgo, the in-
struction proceeds to say :

" It may be proper to add that it has been held iu this Department
that when, through the changing of the channel of the Kio Grande,
the distance of an island in the river from the respective shores has
been changed, the line adjusted by the commissioners under the treaty
is nevertheless to remain as originally drawn."

Mr. Bayard, Sec. of State, to Mr. Bowen, June 12, 1886. MSS. Dom. Let.

■ When a great river is the boundary between two nations or states,
if the original property is iu neither and there be no convention re-
specting it, each holds to the middle of the stream. But where a state
which is the original proprietor grants the territory on one side only,
it retains the river withiu its own domains, and the newly-erected state
extends to the river only. In such case the lower-water mark is its
boundary, whether the fluctuations in the stream result from tides or
from an annual rise and fall.

Handly v. Antbouy, 5 Wlieaton, 374.

Where a river forms the boundary between two countries, and the
only access to the adjacent territories is through such river, the waters
of the whole river must be considered as common to both nations, for
all jiurposes of navigation, as a common highway. Hence, the mere
transit of a French vessel through the waters of a river which forms
the boundary between the United States and the territory of a foreign
state, for the purpose of proceeding to such territory, cannot be taken
to subject the vessel to penalties imposed by the United States upon
French vessels for entering their territory.
The ApoUon, 9 Wheaton, 362.

In a disputed boundary case, in which a State was held to have own-
ership of soil and jurisdiction in the bed of a river, the bed of the river
was defined to include " that portion of its soil which is alternately covered
and left hare as there may he an increase or diminution in the supply of
water, and ivhich is adequate to contain it at its average and. mean stage
during the entire year, ivithout reference to the extraordinary freshets
of the winter or spring, or the extreme droughts of the summer or au-
tumn^

It was also held that in places where the bank was not defined, the
line must be continued up the river on the line of its bed, as defined
above.

State of Alabama v. State of Georgia, 23 Howard, 505.

§ ;)().] SOVEREIGNTY OVER WATER. [CHAP. II.

Wlieio a liver is tlie boundary between two uatioiiy, it continues
so notwitlistauding accretion and decretion of its banks; but if it vio-
lently leave its bed, the latter remaius the boundary.
8 Op., 17&, Gushing, 1856.

Wbcu a river is in the territory of a particular state, then the i)ablic control of
the entire river and jurisdiction of offenses committed on it, belong properly to such
state. On this topic Holtzeudorff, Euc. 1223, cites Wurm, Briefe iiber die Freiheit
der FlussHchiffahrt, 1858; Caratheodory, Du droit int. concernaut les grands cours
d'eau, 1861; Engelhard, Du regime conventional des fleuves, 1870. By the treaty of
Versailles, of 1783, by which the independence of the United States was recognized,
it was provided iu article 8, that * the navigation of the river Mississippi shall for-
ever remain free and ojien to the subjects of Great Britain, and the citizens of the
United States.' But the United States having purchased Louisiana, on April 30, 1803,
from France, and Florida from Spain, on February 22, 1819, acquired possession of
the bauks on both sides of the Mississippi, and the treaty of Ghent, of December 24,
1814, no doubt for this reason, omitted all reference to the rights of British subjects
to the navigation of the river. Since then the exclusive control of the river by the
United States, so far as concerns foreign states, has been conceded internationally ;
though, subject to police supervision and to the right to impose pilotage and quar-
antine regulations, the free navigation of this and of other navigable rivers within
the United States is, by the law of nations, accepted by the United States, open to all
ships of foreign sovereigns. The right freely to navigate the Saint Lawrence, was for
many years the subject of controversy between Great Britain and the United States;
the United States insisting on the right of free passage over this river, the lakes by
which it is fed being in large part bounded by the United States. This right, how-
ever, was resisted by Great Britain. 'It is difficult to deny,' says Sir R. Phillimore
(Phil. Int. Law, 3d ed., 245), ' that Great Britain may have grounded her refusal upon
strictlaw ; but it is at least equally dilHcult to deny, first, that iu so doing she putin
force ail extreme and hard law ; secondly, that her conduct with respect to the navi-
gation of the Saint Lawrence Avas inconsistent with her conduct with respect to the
navigation of the Mississippi. On the ground that she possessed a small tract of domain
in which the Mississippi took its rise, she insisted on her right to navigate the entire vol-
ume of its waters ; on the ground that she possessed both banks of the Saint Lawrence
where it disembogued itself into the sea, she denied to the United States the right to
navigation, though about one-half of the waters of Lakes Ontario, Erie, Huron, and
Superior, and the whole of Lake Michigan, through which the river flows were the
luoperty of the United States.' The question, however, was settled with the with-
drawal, in the reciprocity treaty of June 5, 1854, of the exclusive claims of Great
Britain. This treaty, it is trae, ceased to exist on January 18, 1865, by action of the
Government of the United States, in pursuance of a right leserved in this treaty ; but
the exclusive navigation of the river has not since then been insisted on by Great
Britain." Whart. Com. Am. Law, and see, also, Lawrence's Wheatou, n. 114, p. 361.

As regulating rights to navigable rivers, see treaties of the United States with Ar-
gentine Confederation, 10 U. S. Stat, at L., 1005 ; with Mexico, ib., 1031 ; with Bolivia,
12 ib., 1003 ; with Paraguay, ib., 1091.

Mr. Field (International Code, ^ 55) states the rule as follows :

"A nation, and its members, through the territories of which runs a navigable river,
have the right to navigate the river to and from the high seas, even though passing
through the territory of another nation, subject, however, to the right of the latter
nation to make nece.ssary or reasonable police regulations for its own peace and safety.
Message of President Grant to the Congress of the United States, December, 1870,
and treaties there cited."

" By the Roman law a free passage is given to ail parties over all navigable rivers
with the use of the shore (jus littoris) for unloading cargo and anchoring vessels, (i,

CHAP. II.] RIVERS. [$ 30.

i-ri, lust., ii, 1.) Adistinctiou, however, was taken between the sea, wbieh was " res
coruinuues" and navigable rivers, which were " res publicae." The Hame view was
taken by Grotius(Lib. II, c. ii, $ 12), but the great weight of authority since Vattel
is that the state through which a river Hows is to be the sole judge of the right of
foreigners to the use of such river. Wheat. Int. Law, i, 229; Vattel, I, i, $292.

" On the other hand, when the free navigation of a river is conceded, this carries with
it the right to use the shores so far as this is necessary to the use of the river. Phil.,
at sup., i, 225 ; Wheat. Hist, of Law of Nat., 510." Whart. Com. Am. Law, § 191.

"When a navigable river forms the boundary between between two
states, both are presumed to have free use of it, and the dividing line
will run in the middle of the channel, unless the contrary is shown by
long occupancy or agreement of the parties. If a river changes its
bed, the line through the old channel continues, but the equitable right
to the free use of the stream seems to belong, as before, to the state
whose territory the river has forsaken.

"When a river rises' within the bounds of one state and empties into
the sea in another, international law allows to the inhabitants of the
upper waters only a moral claim or imperfect right to its navigation.
We see in this a decision based on strict views of territorial right, which
does not take into account the necessities of mankind and their desti-
nation to hold intercourse with one another. When a river aftbrds to
an in land state the only, or the only convenient means of access to the
ocean and to the rest of mankind, its right becomes so strong, that ac-
cording to natural justice possession of territory ought to be regarded
as a far inferior ground of right."

Woolsey, § 58.

" Where the entire upper portion of a navigable river is included within
a single state, the part so inclosed is undoubtedly the property of such
state. Where a navigable river forms the boundary of conterminous
states, the middle of the channel — the filum aquae or thalweg— is gen-
erally taken as the line of their separation, the presumption of law be-
ing that the right of navigation is common to them both. But this
presumption may be rebutted or destroyed by actual ])roof of the ex-
clusive title of one of the riparian proprietors to the entire river. Such
title may have been acquired by prior occupancy, purchase, cession,
treaty, or any one of the modes by which other public territory m;iy be
acquired. But where the river not only separates the conterminous
states, but also their territorial jurisdictions, the thalweg, or middle
current, forms the line of se[)aration through the bays and estuaries
through which the waters of the river How into the sea. As a general
rule, this line runs through the middle of the deepest channel, although
it may divide the river and its estuaries into two very unequal parts.
But the deeper channel may be less suited, or totally uutit, for the pur-
poses of navigation, in which case the dividing line would be in the
middle of the one best suited and ordinarily used for that object. The
division of the islands in the river and its bays would follow the same
rule."

1 Hiilleck Int. Law (by Baker), 146.

PoiHous of the correspondence with Great Britain in 1824-'27, as to the river St.

Lawrence, willbe found in the British and Foreign State Papers for 18:U-'32,

vol. 19. :^09.
For notices of the free navigation of the Mississippi, the St. Lawrence, the

Plata, the Amazon, the Scheldt, the Congo, and the Niger, see Schuyler's

Am. Diplomacy, chapter vi ; and see also report on free navigation, Honse

Kep. No. 295, :^lst Cong., 1st sess.

S. Mis. 162— VOL. I 7 97

^ 30.] ROVEREKiXTY (WEK WATER. [('II AP. 11

For Auk ricaii ;iimI Urifisli pain-rs ]>rr;i;irc(l in iicudtiations uf l*-:-J-J--'-J:i sec SciiaU;
Ex. L)<)<.-. Xt). iWO, I81I1 (_'i)iit;..'~'<l ses«. ; o Am. State Pap. (For. Kel.), ."1. : 74.

As to Amazon Riv.r. sei; mt-morial of Lieut. Maury on free navigaliou of, House
(Misc. ) Uof. No. 2,'. :\M Coug., l«t ses8.

A.s to Amoor River, and pai)ers as to explorjitions of, see House Ex. Doc. No. 9«,
:?;")! h Cong. 1st sess.

An article by M. E. Engelliar(lt,'on neutrality in relation to >'tie»ves inter-
nation 3,ux et aux cauaux maritiuies," is given in Revue de Droit Int..
188(i, No. 2, 1.")!).

As to admiralty jurisdiction over rivers, see wfra, iS 35a.

As to Congo River, see infra, 6 51.

By the treaty of April 9, 1855, the Argeutiiie Eepublic conceded
the free na\i}]:atioii of the rivers Parana and Uruguay, such " free navi-
gation" * * belonging "to the merchant vessels of all nations."

By a treaty ol February 4, 185<) (prochiimed March 12, 1800), the free
navigation oif" the Paraguay, so far as belonging to the Republic of Para
guay, is granted by Paraguay to the United States.

Bolivia, by the treaty of May 13. 1858 (proclaimed January 8, 1883),
grants to the United States similar privileges as to the La Plata and
tiie Amazon.

As to the Amazon, whose waters How througli Peru, Ecuador, and
Bolivia, the ibllowing is tq be observed : Peru, by its treaty of July 26,
1851, gives to the United States, as to the Amazon, the privileges of tke
most favored nation, which carries tlie ])rivileges of free navigation
granted by Peru to Brazil. Ecuador, in 1853, decrees free navigation
of its rivers, which include the affluents of the Amazon. The same
I ights ar« granted by Bolivia to the United States by the treaty of May
13, 1858, above noticed. See ivfra, §§ 40, 157.321.

"xVs to the Peruvian tributaries of the Amazon, a controversy arose
between the United States and Peru. By the treaty between those
powers, of 20th July, 1851, it is agreed that there sball be ' reciprocal
liberty of commerce and navigation between their respective territories,'
an<l that 'the citizens of either may frequent with their vessels all the
coasts, ])orts. and places of the other where foreign commerce is per-
mitte«l,' and shall have ' full liberty to trade in all parts of the territories
of either' ; and each agrees ' not to grant any favor, privilege, or immu-
nity whatever, in matters of commerce and navigation, to other nations
which sliitll not be immediately extended to the citizens of the other
contia(;tiug party.' On the 23d October following, Peru made a treaty
with Brazil to regidatethe navigation of the Amazon and its tributaries,
in which it is agreed that vessels of either country, passing to or from
portions of the other on that river or its tributaries, shall be subject only
to reciprocal duties, such as either nation lays on its own products.
The United States contended that this treaty came within the operation
of the leciprocal clause of the treaty of the 20th July, 1851, and gave
to our commerce ihe same right in the I^eruvian tributaries of the
Amazon witli Brazilian commerce.''
Dana's Whenton, >; 205, note 11"^.

By a decree taking effect September 7, 1867, Brazil opened the Am-
azon to foreign commerce, and the same course was taken by Peru, on
December 17. 180S. ////>•«, § 157.

•' By the treaty of December 30, 1853, between the United States and
Mexico, navigation is made free to vessels of the United States to
and from their own territory, through the Colorado and the Gulf of
California, and through the Mexican part of the Eio Grande below lati-
tude 31° 47' 30"."

Dana's "Wheaton, j 205. note 118.
98

CHAP. II.] LAKES. [§31.

The Con<j,u'ss of Vicniui of 1815, in a large lueasiiie iiiHler the iullii-
ence of lUiioii Uiuuboklt, laid down the followiii<;- riile.s:

(1) NaviijatioTi for the juirpo.se of trade is not to be interdicted to any
person on snch navigable waters as traverse the territory of several states,
this being conditioned on their conformity to local police regulations.

(2) Tarifis for this purpose are to be established on a uniform and
permanent ba.sis (fa^on uniforme et invariable) and in such a way as
not to prevent trade.

(3) The rights of " ancrage," of " uolis," and of " relache forc^e," etc.,
to be abolished.

(4) Each state will undertake such works as are useful in improving
navigation.

(o) '"Bureaux de perception " to be confined to sucb action as is strictly
necessary.

(6) P^rontier customs offices are to be so conducted as not unnecessa-
rily to impede navigation.

The vagueness of these rules has led to many questions, which have
been more or less solved by conventions between the parties in interest.

2 Fiore, Droit lut. (2cl ed., l.^S'i, trauslated by Antoiue), ^3 'til. Fiore proceeds
to discuss in luiicli detail the geueral rules of internatioual law iu respect
to navigable rivers.

YL— LAKES AND INLAND SEAS.

§ 31.

The right and title to the shores of the Great Lakes is in the sev-
eral States, and not in the United States.

6 Op., 172, Cashing, 1853.

As to conventions with Great Britain in respect to the great North American

lakes, see infra. C* 150.

An inland sea or lake belongs to the state in which it is territorially
situated. As illustrations may be mentioned the inland lakes, whose
entire body is within the United States, and the Sea of Azov. Those
portions of the sea which are bounded by several European states
were at one time claimed to belong in common to the states by which
they are bounded ; but this claim is not now allowed. The fact that
both shores of an arm of the sea, as in the case with Magellan's Straits,
have, subsequent to its adoi)tion as a public highwaj', been under the
possession of a single power, does not change its public character.
]Sror, it is now fin.dly settled, can a strait which sei>arates two or more
countries (e. r/., the British Channel or the Sound) be placed under
their joint control, so as to ])ut other countries at a disadvantage. A
distinctive rule has been adopted in reference to the Dardanelles and
the Bos])horus, which, even in times of peace, are closed to the ships
of war of all European nations, a rule only deviated from in cases of
peculiar courte.sy. Since 1871, the merchant ships of all nations have
equal rights on the Black Sea.

Whart. Com. Am. Law, vS 192: Woolsey, v^ .'>7 : and see, also, Holtzendorff', Enc.
1222, referring to Twiss's " Territorial Waters "' iu the Nautical Magazine,
1878; Stork, .Jnrisdiktlon in Kiistengewiisseru.

Under the treaty of Paris of 18.56, the Black ?>fa is neutralized, and by a sub-
sequent convention Russia and Turkey limited their naval force on the
Black Sea. By a treaty of March l:?, l-^Tl. it is provided that "the Black
Sea remains o])en, as heretofore, to the mercantile marine of all nations."
For a speciiication of treaties referring to Turkey and the Black Sea, see
Phill., op. cif., '295 ff. As to neutralization see infra. ^ 40.

As to the North American lakes in respect to treaty limitations, see Infra, ^ 40.

^ 32.] SOVEREIGNTY OVER WATER. [CHAP. II.

VII. MARGINAL I'.EI.T OF SEA.
§ 32.

" The greatest distance to which any respectable assent among na-
tions has been at anj" time given, has been the extent of the human
sight, estimated at upwards of twenty miles, and the smallest distance,
I believe, claimed by any nation whatever, is the utmost range of a can-
non hall, usually stated at ope sea league. * * * The character of
our coast, remarkable in considerable parts of it for admitting no ves-
sels of size to i)ass near the shores, would entitle us, in reason, to as
broad a margin of protected navigation as any nation whatever."

Mr. JeflfersoD, Sec. of State, to Mr. Genet, Nov. 8, 179.3. MSS. Notes, For. Leg ;
1 Am. State Pap. (For. Eel.), 183 ; 1 Wait's Am. St. Pap., 195.

The limit of one sea league from shore is provisionally adopted as
that of the territorial sea of the United States.

Mr. Jefferson, Sec. of State, to the Minister of Great Britain, Nov. 8, 1793.

MSS. Notes, For. Leg. (See, also, letter to District Attorneys, Nov. 10,

1793. MSS. Dom. Let.)
As to lines between head lands, see supra, §$27, 28 ; as to bays, supra, 6 28.

" Our jurisdiction has been fixed (at least for the purpose of regulat-
ing the conduct of the Government in regard to any events arising out of
the repsent European war) to extend three geographical miles (or nearly
three and a half English miles) from our shores, with the exception of
any waters or bays which are so land-locked as to be unquestionably
within the jurisdiction of the United States, be their extent what they
may."

Mr. Pickering, Sec. of State, to Gov. of Va., Sept. 2, 1796. MSS. Dom. Let.

" The President (Mr. Jefferson, in an informal conversation) men-
tioned a late act of hostility committed by a French privateer near
Charleston, S. C, and said we ought to assume, as a principle, that the
neutrality of our territory should extend to the Gulf Stream, which was
a natural boundary, and within which we ought not to suffer any hos-
tility to be committed, 3Ir. Gaillard observed that on a former occasion
hi Mr. Jefferson's correspondence with Genet, and by an act of Congress
at that period, we had seemed only to claim the usual distance of three
miles from the coast ; but the President replied that he had then assumed
that principle because Genet, by his intem])erance, forced us to fix on
some point, and we were not then jDrepared to assert the claim of juris-
diction to tlie extent we are in reason entitled to : but he had taken care
to reserve this subject for future consideration with a view to this same
doctrine for which he now contends."

1 J. Q. Adams's Mem., 376-7.

" There could surely be no pretext for allowing less than a marine

league from the shore, that being the narrowest allowance found in any

authorities on the law of nations. If any nation can fairly claim a

greater extent the United States have pleas which cannot be rejected;

100

CHAP. II.] MARINE BELT. [§ 32.

and if any nation is more particularly bound by its own example not to
control our claim, Great Britain must be so by the extent of her own
claims to jurisdiction on the seas which surround her. It is hoped, at
least, that within the extent of one league you will be able to obtain an
effectual prohibition of British ships of war from repeating: the irregu-
larities which have so much vexed our commerce and provoked the
public resentment, and against which an article in your instructions
emphatically provides. It cannot be too earnestly pressed on the
British Government that in applying the remedy copied from regula-
tions heretofore enforced against a violation of the neutral rights of
British harbors and coasts, nothing more will be done than what is
essential to the preservation of harmony between the two nations. In
no case is the temiitation or the facility greater to ships of war for an-
noying our commerce than in their hovering on our coasts and about
our harbors; nor is the national sensibility in any case more justly or
more highly excited than by such insults. The communications lately
made to Mr. Monroe, with respect to the conduct of British commanders
even within our own waters, will strengthen the claim for such an
arrangement on this subject, and for such new orders from the British
Government as will be a satisfactory security against future causes of
complaint."

Mr. Madison, Sec. of State, to Messrs. Monroe and Pinkney, Feb. 3, 1807. MSS.
Instruc. to Ministers.

"The right of a government to seize a vessel within its own jurisdic-
tion for an actual or presumed violation of the laws and to bring her
to a trial before the competent tribunal cannot be denied."

Mr. Gallatin, minister at Paris, to Baron Pasquier, minister of foreign affairs,
June 28, 1821 ; 2 Gallatin's Writings, 186.

Mr. Webster, Sec. of State, to Lord Asbburton, Aug. 1, 1842; MSS. Notes Gr.
Brit. ; 6 Webster's Works, 306 ; Whart. Conf . of Laws, $ 356.

" The exclusive jurisdiction of a nation extends to the ports, harbors,
bays, mouths of rivers, and adjacent parts of sea inclosed by headlands,
and, also, to the distance of a marine league, or as far as a cannon shot
will reach from the shore along all its coasts." Within these limits the
sovereign of the mainland may arrest, by due process of law, alleged
offenders on board of foreign merchant ships.

Mr. Buchanan, Sec. of State, to Mr. Jordan, Jan. 23, 1849. MSS. Dom. Let.

"This Government adheres to, recognizes, and insists upon the princi-
I^e that the maritime jurisdiction of any nation covers a full marine
league from its coast, and that acts of hostility or of authority within a
marine league of any foreign country by naval officers of the United

lOX

§ 32.] SOVEREIGNTY OVER WATER. [CHAP. II.

States are strictly prohibited, and will bring upon such officer the dis-
pleasure of this Government."

Mr. Seward, Sec. of State, to Mr. Welles, Sec. of the Navy, Aug. 4, 18G2. MSS.
Dora. Let.

See, further, Mr. Seward to Mr. Welles, Oct. 10, 18(52. Ibid.

"The undersigned would observ^e, in the first place, that there are
two principles bearing on the subject which are universally admitted,
namely, first, that the sea is open to all nations, and secondly, that
there is a portion of the sea adjacent to every nation over wliich the
sovereignty of that nation extends to the exclusion of ev'ery other polit-
ical authority.

" A third principle bearing on the subject is also well established,
namely, that this exclusive sovereignty of a nation, thus abridging the
nuiversal liberty of the seas, extends no farther than the power of the
nation to maintain it by force, stationed on the coast, extends. This
principle is tersely expressed in the maxim Terrce dominium Jinitur ubi
Unitur armarum vis.

"But it must always be a matter of uncertainty and dispute at what
point the force of arms exerted on the coast can actually reach. The
publicists rather advanced towards than reached a solution when they
laid down the rule that the limit of the force is the range of a cannon-
ball. The range of a cannon-ball is shorter or longer according to the
circumstances of projection, and it must be always liable to cliange with
the improvement of the science of ordnance. Such uncertainty upon a
point of jurisdiction or sovereignty would be productive of many and
endless controversies and conflicts. A more practical limit of national
jurisdiction upon the high seas was indispensably necessary, and this
was found, as the undersigned thinks, in fixing the limit at three miles
from the coast. This limit was early proposed by the publicists of all
maritime nations. While it is not insisted that all nations have accepted
or acquiesced and bound themselves to abide by this rule when applied
to themselves, yet three points involved in the subject are insisted upon
by the United States: First, that this limit has been generally recog-
nized by nations ; second, that no other general rule has been accepted ;
and third, that if any state has succeeded in fixing for itself a larger
limit, this has been done by the exercise of maritime power, and consti-
tutes an exception to the general understanding which fixes the range
of a cannon-shot (when it is made the test of jurisdiction) at three
miles. So generally is this rule accepted that writers commonly u.se the
expressions of a range of cannon-shot and three miles as equivalents of
each other. In other cases they use the latter expression as a substi-
tute for the former. Thus Wildman, in his ' Plain directions to naval
officers as to the law of search, caplure, and prize' (page 12, ed. Lon-
don, 1854), says: ' The capture of vessels within the territory of a neutral
state, or within three miles of the coast, * * * is illegal with respect
to the neutral sovereign.'
1U2

CHAP. II.] MARINE BELT. . [§ 32.

"Impre^>sed by these general views, the United States are not pre-
pared to admit that Spain, without a formal concurrence of other na-
tions, can exercise exclusive sovereignty upon the open sea beyond a
line of three miles from the coast, so as to deprive them of the rights
common to all nations ui)on the open sea.

"The United States admit that they have a temporary interest (dur-
ing the present insurrection) to maintain a broad freedom of the seas, so
as to render their naval operations as effective as may be consistent
with the law of nations.

Mr. Seward, Sec. of Stati;, to Mr. Tasisaru, Dec. Itj, 1662. MSS. Notes, Spain.

"Nevertheless it cannot be admitted, nor indeed is Mr. Tassara un-
derstood to claim, that the mere assertion of a sosereign, by an act of
legislation, however solemn, can have the etiect to establish and tix its
external maritime jurisdiction. His right to a jurisdiction of three miles
is derived not from his own decree but from the law of nations, and
exists even though he may never have ijroclaimed or asserted it by
any decree or declaration whatsoever. He cannot, by a mere decree,
extend the limit and fix it at six miles, because, if he could, he could in
the same manner, and upon motives of interest, ambition, or even upon
caprice, fix it at ten, or twenty, or fifty miles, without the consent or
acquiescence of other powers which have a common right with himself
in the freedom of all the oceans. Such a pretension could never be
successfully or rightfully maintained. * * *

"It results from these remarks, that while it is admitted that on the
part of Spain the claim is not one of new creation, it is practically
one that has only recently been presented to the United States, and
for aught that appears is entirely new to other maritime powers.

"The undersigned is far from intimating that these facts furnish
conclusive reasons for denying the claim a respectful consideration.
On the contrary, he very cheerfully proceeds to consider a farther
argument, derived, as Mr. Tassara supposes, from reason and justice,
which he has urged in respect to the claim. This ground is, that the
shore of Cuba is, by reason of its islets and smaller rocks, such as to
require that the maritime jurisdiction of Cuba, in order to purposes of
effective defense and police, should be extended to the breadth of six
miles. The undersigned has examined what are supposed to be ac-
curate charts of the coast of Cuba, and if he is not misled by some
error of the chart, or of the process of examination, he has ascertained
that nearly half of tlie coast of Cuba is practically free from reefs,
rocks, and keys, and that the seas adjacent to that part of the island
which includes the great harbors of Cabanos, Havana, Matanzas, and
Santiago are very deep, while in fact the greatest depth of the passage
between Cuba and Florida is found within five miles of the coast of
Cuba, off the harbor of Havana."

Mr. Seward, Sec. of State, to Mr. Tassara, Aug. 10, 1863. MSS. Notes, Spaiu.

103

§ 32.] SOVtEEIGNTY OVER WATER. [CHAP. II.

'•Spain claims a maritime jurisdictiou of six miles around the island of
Cuba. In pressing this claim on the consideration of the United
States, Spain has used the argument that the modern imijrovements
in gunnery render the ancient limit of a marine league inadequate to
the security of neutral states.

"When it was understood at Paris that an engagement was likely
to come off before Cherbourg between the United States shij) of war
Kearsarge and the pirate Alabama, the French Government remon-
strated with both parties against firing within the actual reach of the
shore by cannon-balls fired from their vessels, on the ground that the
effect of a collision near the coast would be painful to France.

"For these reasons 1 think that the subject may now be profitably
discussed, but there are some preliminary considerations which it is
deemed important to submit to Her Majesty's Government:

"First. That the United States, being a belligerent now, when the
other maritime states are at peace, are entitled to all the advantages
of the existing construction of maritime law, and cannot, without seri-
ous inconvenience, forego them.

"Secondly. That the United States, adhering in war, no less than
when they were in the enjoyment of peace, to their traditional liberality
towards neutral rights, are not unwilling to come to an understanding
upon the novel question which has thus been raised in consequence of
the improvements in gunnery.

"But, thirdly, it is manifestly proper and important that any such
new construction of the maritime law as Great Britain suggests should
be reduced to the form of a precise proposition, and then that it should
receive, in some manner, by treaty or otherwise, reciprocal and oblig-
atory acknowledgments from the principal maritime powers.

"Upon a careful examination of the note you have addressed to me,
the suggestions of Her Majesty's Government seem to be expressed in
too general terms to be made the basis of discussion. Suppose, by way
of illustration, that the utmost range of cannon now is five miles, are Her
Majesty's Government understood to propose that the marine bound-
ary of neutral jurisdiction, which is now three miles from the coast, shall
be extended ten miles beyond the present limit? Again, if cannon-
shot are to be fired so as to fall not only not upon neutral land, but
also not upon neutral waters, then, supposing the range of cannon-shot
to be five miles, are Her Majesty's Government to be understood as
proposing that cannon-shot shall not be fired within a distance of eight
miles from the neutral territory?

" Finally, s4jall measured distances be excluded altogether from the
statement, and the i)roposition to be agreed upon be left to extend
with the increased range of gunnery, or shall there be a pronounced
limit of jurisdiction, whether five miles, eight miles, or any other meas-
ured limit?"

Mr. Seward, Sec, oi' «tato, to Mr. Buruley. Sej)!. IG, 1864. MSS. Notes, Gre^t
Britain.
104

CHAP. II.] MARINE BELT. [§ 32.

"The iDstruction from the foreign office to Mr. Watson, of the 25th
of September last, a copy of which was communicated by that gentle-
man to this Department, in his note of the 17th of October, directs him
to ascertain the views of this Government in regard to the extent of
maritime jurisdiction which can properly be claimed by any power, and
whether we have ever recognized the claim of Spain to a six-mile limit
or have ever protested against such claim.

"In reply I have the honor to inform you that this Government has
uniformly, under every administration which has had occasion to con-
sider the subject, objected to the pretension of Spain adverted to, upon
the same ground and in similar terms to those contained in the instruc-
tion of the Earl of Derb^.

"We have always understood and asserted that, pursuant^© public
law, no nation can rightfully claim jurisdiction at sea beyond a marine
league from its coast,

" This opinion on our part has sometimes been said to be inconsistent
with the facts that, by the laws of the United States, revenue-cutters
are authorized to board vessels anywhere within four leagues of their
coasts, and that by the treaty' of Guadalupe-Hidalgo, so called, be-
tween the United States and Mexico, of the 2d of February , 1848, the
boundary line between the dominions of the ijarties begins in the Gulf
of Mexico, three leagues from land.

"It is believed, however, that in carrying into eftect the authority
conferred by the act of Congress referred to, no vessel is boarded, if
boarded at all, except such a one as, upon being hailed, may have
answered that she was bound to a port of the United States. At all
events, although the act of Congress was passed in the infancj- of this
Government, there is no known instance of any complaint on the part
of a foreign Government of the trespass hj a commander of a revenue-
cutter upon the rights of its flag under the law of nations.

" In respect to the provision in the treaty with Mexico, it may be re-
marked that it was probably suggested by the passage in the act of
Congress referred to, and designed for the same purpose, that of pre-
venting smuggling. By turning to the files of your legation, you will
find that Mr. Bankhead, in a note to Mr. Buchanan of the 30th of
April, 1848, objected on behalf of Her Majesty's Government, to the
provision in question. Mr. Buchanan, however, replied in a note of
the 19th of August, in that year, that the stipulation could only affect
the rights of Mexico and the United States, and was never intended to
trench upon the rights of Great Britain, or of any other power under
the law of nations."

Mr. Fisb.Sec. of State, to Six* Edward Tliornton, Jan. 22, 1^75. MSS. Notes,
Great Britaiu ; For. Rel., 1875.

The following is the section of the Revised Statutes referred to in the

above note:

X06

^\ 32.] SOVEREIGNTY OVER WATER. [CHAP. II.

Sec. 27()0. The officers of the revenue-cutters shall respectively be
deemed officers of the customs, and shall be subject to the direction of
such collectors of the revenue, or other officers thereof, as from time to
time shall be designated for that purpose. They shall go on board all
vessels which arrive within the United States or within four leagues of
the coast thereof, if bound lor the United States, and search and examine
the same, and every part thereof, and shall demand, receive, and certify
the manifests required to be on board certain vessels, shall affix and put
l)roper fastenings on the hatches and other communications with the
hold of any vessel, and shall remain on board such vessels until they
arrive at the port or place of their destination.

As to pursuit by neutral of belligerent who has, in derogation of neutrality,
fitted out a cruiser in such neutral port, see infra, ^ 396.

"There was reason to hope that the practice which formerly prevailed
with powerful nations of regarding seas and bays usually of large ex-
tent near their coast as closed to any foreign commerce or fishery not
specially licensed by them, was, without exception, a pretension of the
past, and that no nation would claim exemption from the general rule
of public law which limits its maritime jurisdiction to a marine league
from its coast. We should particularly regret if Russia should insist
on any such pretension."

Mr. Fish, Sec. of State, to Mr. Boker, Dec. 1, 1875. MSS. Inst., Russia.

An attack by Mexican officials ou merchant vessels of the United
Staies, when distant more than three miles from the Mexican coast, on
Ihe izround of breach of revenue laws, is an international offense, which
IS iM»t cured by adecree infavorof the assailants, collusively or corruptly
maintained in a Mexican court.

Mr. Evarts, Sec. of State, to Mr. Foster, Apr. 19, 1879. MSS. Inst., Mex. Infra,
^ 238,239, ff.

"I have received your No. 108 of the 29th of January ultimo, with its
accompanying copy and translation of the note addressed to you on the
24th of that month by the minister of state, giving the results of the
investigation ordered by the Spanish Government of the circumstances
under which the American vessels Ethel A. Merritt, Eunice P. New-
comb, George Washington, and Hattie Haskell were fired upon and
visited by Si)anish gunboats, near the island of Cuba, in May, June,
and July of last year.

"The tenor of that reply is to contradict all the material allegations
of the masters and officers of the several vessels named, asserting that
they were in each case nearer to the Cuban coast than appeared from
the statements made to this Government; that the gunboats which
eflected their detention aiid visitation acted in no warlike capacity, but
as simple guardians of the revenue interests of Spain, and that neither
in form nor in spirit was there any intended discourtesy to the flag of
the United Slates.

*' Immediately on ti)e reeoipt of vour dispatcli I addressed the repre*
100

CHAP. II.] MARINE BELT. [§ 32.

seutatives of each of the vessels in questiou, contrasting the complain-
ants' statements (which 1 may observe were only accepted by the
Department after the most searching methods had been adopted to
arrive at the truth of the facts according to the admitted rules of evi-
dence in such cases) with the statements now presented in behalf of
the Spanish Government, and asking what corroborative evidence of
the exactness of their former affirmations they can now furnish, and
what reply they desire to make to the allegation that their vessels were
out of their course, and so liable to suspicion. Their awaited replies
will enable the Department to better judge what direction shall be given
to its further action, and instructions to you on the specific points of
fact involved are necessarily deferred.

*' Meanwhile, it seems proper that I should briefly touch on certain
points of principle suggested by Seiior Elduayen's note. The minister
does not appear to meet the questiou of the jurisdictional limits within
which the visitations were effected.

" The wide contradiction between the several statements does not
suffice to bring the position of three of the vessels at the time within
the customary nautical league. This Government must adhere to the
three-mile rule as the jurit^dictional limit, and the casesof visitation with-
out that line seem not to be excused or excusable under that rule.

"This Government frankly and fully accepts the principle of the
Government of His Majesty that any intention of discourtesy existed
in these proceedings. It insists, however, on the importance of a clear
understanding of the jurisdictional limit. It insists, likewise, on the
distinction between the verification (according to the usual procedure
of revenue cruisers), within a reasonable rauge of approach, of vessels
seeking Spanish ports in the due pursuit of trade therewith, and the
arrest by armed force, without the jurisdictional three-mile limit, of ves-
sels not bound to Spanish ports. The considerations on these heads,
advanced in my instruction to you of August 11, seem not to have at-
tracted from His Majesty's Government the attention due to their
precise bearing on at least three of the cases in hand under the express
admissions of Mr. Elduayen's note."

Mr. Evarts, Sec. of State, to Mr. Fairchild, March 3, 1881. MSS. Inst., Spain;
. For. Eel., 1881.

As to liow far the marine belt may be extended by making its limits extend
from headland to headland, see supra, $ 28.

" We may, therefore, regard it as settled [citing extracts from Pres-
ident Woolsey, the umpire of the London commission of 1853, and Lord
Granville, as quoted supra, § 28], that so far as concerns the eastern
coast of North America, the position of this Department has uniformly
been that the sovereignty of the shore does not, so far as territorial
authority is concerned, extend beyond three miles from low-water mark,
and that the seaward boundnrv of this zone of territorial waters follows
the coast of the mainland, extending wliere there are islands so as to

107

§ 32.] SOVEREIGNTY OVER WATER. [CHAP. II.

place round such islands the same belt. This necessarily excludes the
position that the seaward boundary is to be drawn from headland to
headland, and makes it follow closely, at a distance of three miles, the
boundary of the sliore of the continent or of adjacent islands belonging
to the continental sovereign.

" The position I here state, you must remember, was not taken by
this Dcjiartment speculatively. It was advanced in periods when the
question of peace or war hung on the decision. When, during the three
earlier administrations, we were threatened on our coast by Great
Britain and France, war being imminent with Great Britain, and lor a
time actually though not formally engaged in with France, we asserted
this line as determining the extent of our territorial waters. When we
were involved, in the earlier part of Mr. Jeflerson's administration, in
difficulties with Spain, we then told Spain that we conceded to her, so
far as concerned Cuba, the same limit of territorial waters as we claimed
for ourselves, granting nothing more ; and this limit was afterwards
reasserted by Mr. Seward during the late civil war, when there was
every inducement on our part not only to oblige Spain but to extend,
for our own use as a belligerent, territorial privileges. When, in 1807,
after the outrage on the Chesapeake by the Leopard, Mr. Jefferson is-
sued a proclamation excluding British men-of-war from our territorial
waters, there was the same rigor in limiting these waters to three miles
from shore. And during our various fishery negotiations with Great
Britain we have insisted that beyond the three-mile line Britisth terri-
torial waters on the northeastern coast do not extend. Such was our
position in 1783, in 1791, in 1815, in 1818. Such is our position now in our
pending controversy with Great Britain on this iaiportaut issue. It is
true that there are qualifications to this rule, but these qualifications
do not affect its application to the fisheries. We do not, in asserting
this claim, deny the free right of vessels of other nations to pass on
peaceful errands through this zone, provided they do not, by loitering,
produce uneasiness on the shore or raise a suspicion of smuggling. iSTor
do we hereby waive the right of the sovereign of the shore to require
that armed vessels, whose projectiles, if used for practice or warfare,
might strike the shore, should move beyond cannon range of the shore
when engaged in artillery practice or in battle, as w as insisted on by
the French Government at the time of the fight between the Kearsarge
and the Alabama, in 18G4, ott' the harbor of'Cherbourg. We claim, also,
that the sovereign of the shore has the right, on the principle of self-
defense, to pursue and punish marauders on the sea to the very extent
to which their guns would carry their shot, and that such sovereign has
jurisdiction over crimes committed by them through such shot, although
at the tinie of the shooting they were beyond three miles from shore. But
these qualifications do not in any way affect the principle I now assert,*
and which 1 am asserting uud pressing in our present contention witU
108

CHAP. II.] MARINE BELT. [§ 32.

Great Britain as to the nortlieasteru fisheries. From the time wlieii
European fishermen first visited tlie great fisheries of the northeastern
Atlantic these fislieries, subject to the territorial jurisdiction above
stated, have been held opeji to all nations, and even over the marine belt
of three miles the jurisdiction of the sovereign of the shore is qualitied
by those modifications which the law of necessity has wrought into in-
ternational law. Fishing boats or other vessels traversing those rough
waters, have the right, not merely of free transit of which I have
spoken, but of relief, when suffering from want of necessaries, from the
shore. There they may go by the law of nations, irrespective of treaty,
when suflering from want of water or of food or even of bait, when
essential to the pursuit of a trade which is as precarious and as beset
with disasters as it is beneficent to the population to whom it supplies
a cheap and nutritious food."

Mr. Bayard, Sec. of State, to Mr. Manuing, Sec. of Treasury, May 28, 18H6.
MSS. Dom. Let.

The limitation to three miles of the marine belt on the northeast At-
lantic is based in part on treaty and in part on customary law there
established as to the fisheries. It does not of itself i>reclude, as has
been already seen, the sovereign of the shore from exercising police
jurisdiction over any destructive agencies which, no matter at what
distance from the shore, may inflict direct injury on the shore, or its
territorial waters. Siipra^ §§ 18, ff^ 27 ; see infra^ § 303.

As to bays see supra $ 28.
"The British 'hovering act,' passed in 173G (9 Geo. II, cap. 35),
assumes, for certain revenue purposes, a jurisdiction of four leagues
from the coasts, by prohibiting foreign goods to be transshipped within
that distance without payment of duties. A similar provision is con-
tained in the revenue laws of the United States, and both these provis-
ions have been declared by jutlicial authority in each country to be con-
sistent with the law and usage of nations."

Mr. Wheatou in Daua's Wheatou, § 179.

In a note to the above, entitled " Municipal seizures beyond the ma-
rine league or cannon-shot," Mr. Dana says :

"The statement in the text requires further consideration. It has
been seen that the consent of nations extends the territory of a state
to a marine league or cannon-shot from the coast. Acts done within
this distance are within the sovereign authority. The war right of
visit and search extends over the whole sea, but it will not be found
that any consent of nations can be shown in favor of extending what
may be strictly called territoriality, for any purpose whatever, beyond
the marine league or cannon shot. Doubtless states have made laws
for revenue purposes touching acts done beyond territorial waters, but
it will not be found that, in later times, the right to make seizures be-
yond such waters has been insisted upon against the remonstrance of
foreign states, or that a clear and unequivocal judicial precedent now
stands sustaining such seizures when the question of jurisdiction has
been presented. The revenue laws of the United States, for instance,
provide that if a vessel bound to a port in the United States, shall,
except from necessity, unload cargo within 4 leagues from the coast,

109

§ 32.] SOVEREIGNTY OVER WATER. [CHAP. II.

aiifl before coniini;- to the iiroi)er ])oit for entiy and unloading, and re-
ceiving jx'nnission to do so, the cargo is lorleit, and tlic master incurs
a penalty (Act I'd March, 171>7, § '21); but the statute does not authorize
a seizure of a foreign vessel wIumi beyond the territorial Jurisdiction.
The statute may well be construed to mean only that a foreign vessel,
coming to an American i)ort, and there seized for a violation of revenue
regulations committed oat of the jurisdiction of the United States may
be contiscated, but that, to complete the forfeiture, it is essential that
the vessel shall be bound to and shall come within the territory of the
United States after the prohibited act. The act done beyond the juris-
diction is assumed to be part of an attempt to violate the revenue laws
within the jurisdiction. Under the previous sections of that act it is
made the duty of revenue officers to board all vessels for the purpose
of examining their papers within four leagues of the coast. If foreign
vessels have been boarded and seized on the high sea, and have been
adjudged guilty, and their Governments have not objected, it is prob-
ably either because they were not apj^ealed to or have acquiesced in
the particular instance from motives of comity.

"The cases cited in the authors note do not necessarily and strictly
sustain the position taken in the text. In the Louis (Dod^n, ii, 245),
the arrest was held unjustified, because made in time of peace for a
violation ot municipal law beyond territorial waters. The words of Sir
William Scott, on pages 245 and 240, with reference to the hovering acts,
are only illustrative of the admitted rule that neighboring waters are ter-
ritorial ; and he does not say, even as an obiter dictum, that the territory
for revenue purpo.ses extends beyond that claimed for other purposes.
On the contrary, he says that an inquiry for fiscal or defensive purposes,
near the coast, but beyond the marine league, as under the hovering
laws of Great Britain and the United States, 'has nothing in common
with the right of visitation and search upon the unappropriated parts
of the ocean;' and adds, 'a recent Swedish claim of examination on the
high seas, though cimfiued to foreign ships bound to Swedish ports,
and accora])anied, in a manner not very consistent or intelligible, with
a disclaimer of all right of visitation, was resisted by the British Gov-
ernment, and was finally withdrawn.' Church r. Hubbard (Cranch, ii,
187) was an action on a policy of insurance, in which there was an ex-
ception of risks of illicit trade with the Portuguese. The voyage was for
such an illicit trade, and the vessel, in pursuance of that purpose, came
to anchor within about four leagues of the Portuguese coast; and the
master went on shore on business, where he was arrested, and the vessel
was afterwards seized at her anchorage and condemned. The owner
sought to recover for the condemnation. The court held that it was
not necessary tor the defendants to prove an illicit trade begun, but
only that the risks excluded were incurred by the prosecution of such a
voyage. It is true, that Chief-Justice Marshall admitted the right of a
nation to secure itself against intended violations of its laws, by seizures
made within reasonable limits, as to which, he said, nations must ex-
ercise comity and concession, and the exact extent of which was not
settled; and, in thecase before the court, thefour leagues were not treated
as rendering the seizure illegal. This remark must now be treated as
an unwarranted admission. The result of the decision is, that the court
did not undertake to pronounce judicially, in a suit on a private con-
tract, that a seizure of an American vessel, made at four leagues, by a
foreign power, was void and a mere trespass. In the subsequent case of
Rose V. Himely (Cranch, iv, 241), where a vessel was seized ten leagues
110

CHAP. II.] MARINE BELT. [§ 32.

from the Fieiuth coast, mikI taken to a S])aiiisli |>oit, and comlemiicd in
a Freiicli tribunal under mnnicipal and not belligerent law, the court
held that any seizures lor municipal puri)oses beyond the territory of
the sovereign are invalid; assinniuf;-, i)erhaps, that ten leagues must Ix'
beyond the territorial limits for all purposes. In Hudson v. Guestier
(Cranch, iv, 1*!)3), where it was agreed that the seizure was municipal,
and was made within a league of the French coast, the majority of the
court held that the jurisdiction to make a decree of forfeiture was not
lost by the fact that the vessel was never taken into a F'rcnch port, if
possession of her was retained, though in a foreign port. The .judg-
ment being set aside and a new trial ordered, the case came up again,
and is reported in Cranch, vi, 281. At the new trial the place of seiz-
ure was disputed; and the judge instructed the jury, that a municipal
seizure, made within six leagues of the French coast, was valid, and
gave a good title to the defendant. The jury found a general verdict
for the defendant, and excei)tions were taken to the instructions. The
Supreme Court sustained the verdict; not, however, upon the grt>un(l
that a municipal seizure made at six leagues from the coast was valid,
but on the ground that the French decree of condemnation must be
considered as settling the facts involved ; and if a seizure within a less
distance from shore was necessary to jurisdiction, the decree maj" have
determined the fact accordingly, and the verdict in the circuit court
did not disclose the opinion of the jury on that point. The judges
differed in stating the ])rinciple of tbis case and of Rose v. Himely, and
the report leaves the difference somewhat obscure.

"This subject was discussed incidentally in the case of the Cagliari,
which was a seizure on the high seas, not for violation of revenue laws,
but on a claim, somewhat mixed, of piracy and war. In the opinion
given by Dr. Twiss to the Sardinian Government in that case, the
learned writer refers to what has sometimes been treated as an excep-
tional right of search and seizure, for revenue purposes, beyond the
marine league, and says that no such exception can be sustained as a
right. He adds: 'In ordinary cases, indeed, where a merchant ship
has been seized on the high seas, the sovereign whose Hag has been
violated waives his privilege, considering the offending ship to have
acted with mala fide.s towards the other state with which he is in amity,
and to have consequently forfeited any just claim to his protection."
He considers the revenue regulations of many states, authorizing visit
and seizure beyond their waters, to be enforceable at the peril of such
states, and to rest on the express or tacit permission of the states whose
vessels may be seized.

"It may be said that the principle is settled that municipal seizures
cannot be made, for any purpose, beyond teriitorial w^aters. It is also
settled that the limit of these waters is, in the absence of treaty, the
marine league or the cannon-shot."

But there can be no question, as has been said, that there may be
municipal seizures of United States vessels, under the United States
revenue laws, outside of the three-mile limit.

Russia having asserted, in 1822-'24, an exclusive jurisdiction over the
northwest coast and waters of America from Behring Strait to the
tifty-tirst degree of north latitude, this claim was resisted by the United
States and Great Britain, and was surrendered, in a convention between
Russia and the United States, in April. 1824, for ten years (not sub-

ill

§ 32.] SOVEREIGNTY OVER WATER. [cHAP. II.

sequeu(l\ («M-liiii<;ilIy niu'wcd), and in ii cioiiveiitioii between Great
Britain and llussia. in February, bSlT), for ten years, re-established by
the treaty of June 11, 1843. The Itussian chiim was disputed by Mr.
J. Q. Adams in his note to the Russian minister, of Mnrch 30, 1822.

(See 64 An. Rej^., 57(5-84 ; Brit, and For. St. Pap., 18'24-'25, vol. 12, pp.38, 595;
AIuIv'h Kent (1878), 97.)

As to the pretensions of Russia, above stated, to control the north-
west Pacitie, from Behrinj;' Strait to the fifty-fourth degree of latitude,
and of the adjacent islands, see Calvo Droit Int., 3d ed., vol. 3, 323.

The ukase of Emperor Alexander of Russia, of September, 1821,
daimino- the waters on the northwestern coast of America to the ex-
tent of one handled Italian miles from shore, is discussed in 2 Lyman's
Diplomacy of the United States, chap. xi.

This uiiase was the cause of long discussions between Russia, the
United States, and Great Britain ; discussions which terminated in a
treaty between the United States and Russia, signed April 17, 1824, and
ratified January 11, 1825. This treaty (now superseded in this respect)
contains the following provisions :

Article I.

It is agreed that, in any part of the Great Ocean, commonly called
the Pacific Ocean, or South Sea, the respective citizens or subjects of
the high contracting Powers shall be neither disturbed nor restrained,
either in navigation or in fishing, or in the power of resorting to the
coasts, upon points which may not already have been occupied, for the
purpose of trading with the natives, saving always the restrictions and
conditions determined by the following articles.

Aeticle II.

With a view of preventing the rights of navigation and of fishing ex-
ercised upon the Great Ocean by the citizens and subjects of the high
contracting Powers from becoming the pretext for an illicit trade, it is
agreed that the citizens of the United States shall not resort to any
])oint where there is a Russian establishment, without the permission
of the governor or commander; and that, reciprocally, the subjects of
Russia shall not resort, without permission, to any establishment of the
United States upon the Xorthwest coast.

Article III.

It is moreover agreed that, hereafter, there shall not be formed by
the citizens of the United States, or under the authority of the said
States, any establishment upon the Northwest coast of America, nor
in any of the islands adjacent, to the north of fifty-four degrees and
forry minutes of north latitude; and that, in the same manner, there
shall be none formed by Russian subjects, or under the authority of
Russia, south of the same parallel.

Article IV.

It is, nevertheless, understood that during a term often years, count-
ing from the signature of the present convention, the ships of both
Powers, or whicli belong to their citizens or subjects respectively, may
reciprocally IVeciuent, without any hindrance whatever, the interior seas,
gults, harbors, and creeks, upon the coast mentioned in the preceding
article, for the purpose of fishing and trading with the natives of the
country.

112

CHAP. II ] MARINK BELT \j '62

A It T! CLE V.

All .spiiituouis liquors, lire-arms, otlier arms, powder, and muiiitions
of war of every kind, are always excepted from this same coinmerce
permitted by the preceding article; aud the two Powers engage, recip-
rocally, neither to sell, nor sufier them to be sold, to the natives by
their respective citizens and subjects, nor by any person who may be
under their authority. It is likewise stipulated that this restriction
shall never afiord a pretext, nor be advanced, in any case, to authorize
either search or detention of the vessels, seizure of the merchandize,
or, in tine, any measures of constraint whatever towards the merchants
or the crews who may curry on this*commerce; the high contracting
J'owers reciprocally reserving to themselves to determine upon the
penalties to be incurred, and to inflict the punishments in case of the
contravention of this article by their respective citizens or subjects.

"This treaty excluded the right of the United States to make new
settlements on the northwest shore of America, and the adjacent islands
north of 54 degrees 40 minutes of latitude, and of Russia to make set-
tlements south of that line. An analogous treaty was concluded in the
same year between Great Britain and Eussia. By these treaties the
free navigation of the Pacific was recognized. As to oew settlements,
they bound only the contracting parties."

Fiore, Droit lut. 2cl ed. by Autoine, 1885, ^ 726.
The territorial authority of a nation extends over the contingiious
seas, certainly within the range of cannon-shot, and perhaps further,
according to the nature of the coast.

Church V. Hubbart, 2 Cranch, 187, 235. (See the Ann, 1 Gall., 62.)

There is no fixed rule prescribing the distance from the coast within
which a nation can make seizures to prevent the violation of its laws.
Church I'. Hubbart, 2 Crauch, 187, 235.

"The territorial jurisdiction of a nation over waters within its juris-
diction, and within the three-mile zone of the shore, does not extend to
vessels using the ocean as a highway and not bound to a port of the na-
tion. And a vessel may pass, in its voyage along the shore of another
nation, without subjecting itself to the law of the littoral sovereign, aud
retain all the rights given by thelawof its flag. This authority or claim
of jurisdiction over the ocean within the three-mile zone of the coast is
said and shown by Lord Chief-Justice Cockburu to be a shrinkage of
the claim of jurisdiction over the mare dauHiim^ which was never ac-
knowledged, and is now abandoned, and to exist only for the i)rotec-
tion and defense of the coast and its inhabitants. Mr. Webster, in.his
tetter to Lord Ashburtou, quoted in Wheaton's Law of Nations, infm,
§ 38, says : ' A vessel on the high seas, beyond the distance of a marine
league from the shore, is regarded as part of the territory of the nation
to which she belongs, and subjected, exclusively, to the jurisdiction of
that nation. If against the will of her master or owner she be driven or
carried nearer to the land, or even into port, those who have, or ought to
have control over her, struggling all the while to keep her upon the high
seas,' she remains ' within the exclusive jurisdiction of her Government.'
This was written in the case of the Creole, an American vessel, carried
into Nassau by persons who had been slaves in ^'irginia. The same
reason which governs in the case of a vessel driven by weather or by

S. Mis. 1G2— VOL. I 8 113

§32.] sovKin:r(.'\"i'V owm watfi?. [chap. it.

violence within Ibc t luce mile iiuisdictioii. ;ii)|)li('s ion \ csscl tlie neces-
sities of whose voyaiic ••omiiel her to piiss wifliin the smiie /.one."

Ifciiry on Adiii. .Fur. i is-.')). \n •^'.K

On the other hand, the sovereign of the shore has a right, by inter-
national hvw, to re(|uire that no action be taken by ships of other friendly
nations by which iiis snbjiH'ts shonld be injnred, or the peace of the
shore ilistiirbed.

That a sovereign has a police Jurisdiction overall oft'enses committed
by means of sliot from a ship taking effect on shore is maintained by
very high authority. "The extension," says Perels (Das Internationale
ofifentlidie Seerecht der (xegenwait, § 13), ''of the line depends on the
range of cannon shot at the particular ]>eriod. It is, however, at such
])eriod the same for all coasts.'"

To thiseftect iscitcd Martens, Precis i, )i. 144 : Bluntsohli, v> 302 ; HeflFter, $ 75:
Kliiber. ^ V.W: Ortolan, i, Ib'A. an<l Scbialtarella, P(4 Territorio, p. 8.

Mr. Lawrence thus states the rule: "The waters adjacent to the coast
of a country are deemed witliin its jurisdictional limits only because
they can be commanded from the shore."

Lawr. Wheaton, 84t>.

According to Gessner: "Les droits des riverains ont 6t^ augment^s
par I'invention des canons rayes."

As far as a State can protect itself, so far does its jurisdiction extend.
Kent, i, p. 158.

" La plus forte portee de canon selon le ])rogres commun de Part 4
chaque epoque."

"Inasmuch as cannon-shot can now be sent more than two leagues,
it seems desirable to extend the territorial limits accordingly. The
ground of the ride is the margin of sea ivithin reach of the land forces or
from ivhich the land can be assailed.'^''

Field Int. Code, 2d ed., $ 28.

"It is probably safe to say," says Mr. Hall (Int. Law, 127), "that a
state lias the right to extend its territorial waters from time to time at
its will, with the now increased range of its guns, though it would uu-
doubtedly be more satisfactory that an arrangement upon the subject
should be arrived at by common consent."

See 32 Alb. Law. Jour., 104.

The rea.son originally given for the three-mile limit was that cannon-
balls were, in those days, not known to exceed three miles in range, and
that if the three-mile limit was secured, a sovereign would be fully able
to protect his shores from marauders, or from belligerent cannonade
at sea from which he, a neutral, might suffer. This position, as is
mentioned by Mr. Seward, was taken by the French Government at
the time of the seaduel between the Kearsarge and the Alabama, in
18(J4. Nor does this reason apply exclusively to hostile operations.
We can conceive, for instance, of a case in which armed vessels of
nations, with whom we are at peace, might select a spot within cannon-
range of our coast for the practice of their guns. A case of this char-
acter took place not long since in whi(;h an object on shore was selected
as a point at which to aim, for tlie purpose of practicing, projectiles to
be thrown from the cruiser of a friendly power. Supposing such a
vessel to be four miles from the coast, could it be reasonably maintained
114

CHAP. II.] SHIP NATIONALIZED BY FLAG. [§ 33.

that we Lave no police jurisdiction over such culj)al)le negligence 'i Or
could it be reasonably maintained that marauders, who at the same
time would not be technically pirates, could throw projectiles upon our
shores without our having jurisdiction to bring them to justice ? The an-
swer to such questions may be drawn from the reason that sustained a
claim for a three-mile police belt of sea in old times. This reason author-
izes the extension of this belt for police purposes to nine miles, if such
be the range of cannon at the present day. This, it should be remem-
bered, does not subject to our domestic jurisdiction all vessels passing
witliin nine miles of our shores, nor does it by itself give us an exclusive
right to lisheries within such a limit, or within such greater limit as
greater improvements in gunnery might suggest ; nor would it authorize
the Executive to warn off, within these extended limits, foreign ships by
;.v i)roclamation similar to thai of President Jefferson, in 1807, so as to
])i''event them from communicating with the shore. For the latter pur-
])Oses the three-mile limit is the utmost that can be claimed.

J^y the British territorial waters act of 1878 '' an offense committed
by a person, whether he is or is not a subject of Her Majesty, on the
open sea, within the territorial waters of Her Majesty's dominions, is an
offense within the jurisdiction of the admiral, although it may have
been committed on board or by means of a toreign ship;" and it was
declared in (he preamble of the statute that "the rightful jurisdiction
of Her Majesty, her heirs and successors, extends, and has ahvays ex-
tended^ over the open seas adjacent to the coasts of the United King-
dom, and of all other parts of Her Majesty's dominions, to .such a distance
as is necessary for the defense and security of such dominions?'' It is, how-
ever, further provided that "the territorial waters of Her Majesty's do-
minions, in reference to the sea, means such part of the sea adjacent to
the coast of the United Kingdom or the coast of some other part of Her
Majesty's dominion, as is deemed, by international laiv to be within the
territorial sovereignty of Her Majesty^ and for the purpose of any offense
declared by this act to be irithin the jurisdiction of the admiral., any part
of the open sea iHthin one marine league of the coasts measiired from low-
icater marli, shall be deemed to be open sea within the territorial ivaters of
Her Majesty's dominions.'" This statute in one place apparently makes
the test to consist in the protection of subjects, in another place falls
back on the marine league. So far as concerns persons injured on
shore, the former is on principle the test; and it may also be argued to
be the test in reference to belligerent cruisers undertaking to cannonade
each other within cannon-shot of the shore. So far as concerns injuries
at sea, inflicted by a foreigner on a subject, the question is still open.

See 2 Steph. Hist. Cr. Law, cb. xvi ; Perels, § 13.

See, also, R. v. Keyn, L. R. 2 Ex. D., 6:5 ; 13 Cox., C. C, 403, cited aud criticized,

Wbart. Com. Am. Law, <iS 186; and see 3 Phill. Int. Law, 3d ed., 565; Whart.

Conf. of Laws, 2d ed., § 818. See, also, more fnlly infra § 35 a.

VIII. SHIP NATIONALIZED BY FLAG.

k 33.

As to impressment, see infra, § 331.
As to ship papers and sea-letters, see infra, $ 408.
As to visitation and search, see infra, $§ 325-7.
As to jurisdiction over crimes at sea, see infra, § 41.

" Every merchant vessel on the seas is rightfully considered as part
of the territory of the country to which it belongs. The entry, there-
fore, into such vessel, being neutral, by a belligerent, is an act of force,

115

§ 33.] SOVEREIGNTY OVER WATER. [CHAP. 11.

unci ia prima Jav it a wioiij'', a trespas.s, Miii<ili cau be jvistitied only whon
(lone for some pnr])ose allowed to lorin a sufficient justilication by the
law of niitioiis. lint a IJritisli cruiser enters an American merchant
vessel in order to take therefrom sujjposed British subjects, offering no
Justification therefor, nnder the law of nations, but claiming- the right
under the law of England respecting the King's prerogative. This can-
not be defended. Ii^nglish soil, English territory, English jurisdiction,
is the appropriate sphere for the operation of English law. The ocean
is the sphere of the law of nations, and any merchant vessel on the seas
is, by that law, under the protection of the laws of her own nation, and
may claim immunity unless in cases in which that law allows her to be
entered or visited."

Mr. Webster, Sec. of State, to Lord Asbburton, Aug. 8, 1842. MSS. Notes, Great
Britain; 6 Webster's Works, 317. For other portions of this letter, seew/ra,
§ 331.

" In the letter of Mr. Webster to Lord Ashburton, of the 1st August,
1842, the principles of the law of nations which apply to the subject
were discussed with great clearness and ability. To that letter I refer
you. It will be perceived that Mr. Webster does not ' propose the intro.
duction of any new principle into the law of nations.' He contends
that ' a vessel on the high seas, beyond the distance of a marine league
from the shore, is regarded as part of the territory of the nation to
which she belongs, and subjected exclusively to the jurisdiction of that
nation ; and consequently, if those who have charge of her endeavor, in
good faith, to keep her at sea, that is, within that exclusive jurisdiction,
and if, contrary- to their will, she be forced within another jurisdiction
by stress of weather, by violence, or other necessity, she does not cease
to be within the jurisdiction of her own country. In this case, however,
such jurisdiction is not exclusive to all purposes. 'For any unlawful
acts done by her while thus lying in port, and for all contracts entered
into while there, by her master and owners, she and they must doubt-
less be answerable to the laws of the place.'

" Mr. Webster further contends that ' by the comity of the law of
nations, and the practice of modern times, merchant vessels entering
<>l)en ])orts of other nations for the purpose of trade, are presumed" to
be allowed to bring with them and to retain, for their protection and
government, the jurisdiction and laws of their own country.' These, of
course, extend both over persons and things, subject always to the laws
of the place, in cases of crimes, contracts, «&c., as above mentioned. The
right here claimed is not in derogation of the sovereignty of the place
where the vessels may be, but is presumed to be allowed by that sov-
ereignty."

Mr. Upshur, Sec. of State, to Mr. Everett, Nov. 28, 1843. MSS. Inst., Great
Britain.

" I claim a total immunity for the vessels of the United States ' upon
the common and unappropriated parts of the ocean,' to use the expres-
sion of Lord Stowell, in time of peace, under all circumstances. ' There
116

CHAP. II.] SHIP NATIONALIZED BY FLAG. [§ 33.

is no case iu which a forcible- entrance into them can be justified by
another power ; that is, there is no case in which such entry is a lawful
act. It maj" be an excusable one under peculiar circumstances, of en-
trance and of conduct, whi(!h might well induce the aggrieved party to
renounce all claim for reparation. As, for instance, if a piratical ves-
sel were known to be cruising in certain latitudes, and a national armed
ship should fall in with a vessel sailing in those regions, and answering
to the description given of the pirate, the visitation of a peaceable
merchantman in such case, with a view to ascertain her true character,
could give no reasonable cause of offense to the nation to which she
might belong, and whose flag she carried."

I'.Ir. CiLss, Sec. of State, to Mr. Osnua, May 22, 1858. MSS. Notes, Peru. (See infra,
^ 327.)

"' The jurisdiction of every independent nation over the merchant ves-
sels of other nations lying within its own harbors is absolute and ex-
clusive. Nothing but its authority can justify a ship of war belonging
to another nation in seizing or detaining a vessel thus situated for any
cause or ])retext whatever. * * * There is no power on earth which
would ftssert this principle with more determination and energy than
the United States, and, therefore, there is no power which ought more
carefully to avoid any violation of it in their conduct towards other
nations."

Mr. Biichauan, Sec. of State, to Mr. Wise, Sept. 27, 1845. MSS. lust., Brazil.

"Referring to the case of Albert Allen Gardner, master of the
American ship Anna Camp, tried in the county court at Liverpool, in
May last, cojjies of certain papers relating to which were forwarded to
you by General Badeau, I desire to call your attention to the claim of
jurisdiction put forth by the local common-law courts of Great Britain
in this and other similar cases.

" It seems to be claimed by the courts in question that their jurisdic-
tion extends to the hearing and determining of causes arising upon
complaints between masters and mariners of vessels of the United
States, not only when the occurrences upon which the complaint may
be iounded took place within British i)orts or waters, but also when the
offense which is made the ground of action was committed on board
the vessel on the high seas.

"The exercise of this jurisdiction by the local common-law courts at
Liverpool has already been the cause of much annoyance and, in some
instances, serious inconvenience to masters and owners of American
vessels, and if i)ersisted in may aiiect injuriously the interests of Amer-
ican shipping.

'^ The coLirUs o;' the United St;ites, even those ])ossessing admiralty
jurisdicrion, have repciitedly declined to take cognizance of cases of
this nature when the parties to tlie action were seamen and masters of
foreign vessels. The reasons assigned by the courts of the United
States for refusing to entertain jurisdiction of such cases are believed

117

§ 33.] SOVEREIGNTY OVER WATER. [CHAP. II.

to be ia accord with the general practice of other maritime powers, and
supported by the principles of international maritime law, as under-
stood and interpreted by the highest judicial authority of maritime
nations.

"In a case of controversy between the crew and the master of the
British ship Keliance, sought to be prosecuted before the district court
of the United States in the city of New York, the master and crew in
question being British subjects, the court, in declining to entertain the
case, says : ' The admiralty courts of the United States will decline
jurisdiction of controversies arising between foreign masters and own-
ers unless the voyage has been broken up or the seamen unlawfully
discharged. It is expected,' continues the same judge, 'that a foreign
seaman seeking to prosecute an action of this description in the courts
of this country will procure the ofiflcial sanction of the commercial or
political re])reseutative of the country to which he belongs, or that
good reasons will be shown for allowing his suit in the absence of such
refusal. This court,' adds the learned judge, 'has repeatedly discoun-
tenanced actions by foreign seamen against foreign vessels not termi-
nating their voyages at this port as being calculated to embarrass com-
mercial transactions and relations between this country and others in
friendly relations with it.'

"The justice and wisdom of those observations of the court will be at
once obvious. The laws of the United States, and the instructions of
this Department to its consular officers resident in foreign countries,
provide with more than ordinary care for the adjustment of all ques-
tions of controverts^^ which may arise between the masters and crews of
American vessels growing out of the relations of such masters and
seamen on board the vessels while on the bigh seas or in the ports
of foreign powers ; and where offenses are committed by either mas-
ter or mariner, or other questions of dispute between them arise which
are beyond the province of the consul to determine, ample i)rovision is
made by law for the trial and i)unishment of such oflenses liud the set-
tlement of those questions by the courts of the United States. These
provisions of the law and consular regulations of this country are be-
lieved, moreovi'r, to be in general harmony with existing laws and reg-
latJons of Great Britain on this suliject.

"This Department, as you are aware, has repeatedly brought to the
attention of Her Majesty's Government the necessity of a consular
convention between the two countries, the existence of which would
do much to obviate in future occurrences such as that now com-
plained of. It is not designed in this connection to renew any dis-
eussioM of that subject now, as you are fully informed that this Gov-
I'rnment is now, as it has been heretofore, ready to enter into a
couveutioii on that subjec'.

" You will avail yourself of the earliest opportunity to bring the
question involved in the case of Captain Gardner to the attention of
118

CHAP. II.] SHIP NATIONALIZED BY FLAG. [§ 33.

Uer iMaJesty's Government, with the expression of the hope indulged
bj' the Government of the United States that measures will be adoi)ted
to prevent in future the exercise of jurisdiction by the local common-
law courts of Great Britain in controversies arising between the mas-
ters and seamen of vessels of the United States growing out of occur-
rences on board their vessels on the high seas."

Mr. Fish, Sec, of State, to Mr. Schenck, Nov. 8, 1873. MSS. lust., Great
Britain.

" Keferring to my instruction of the 8th of November, 1873 (No.
470), in relation to jurisdiction assumed by the local common-law courts
of Great Britain, in cases of disputes arising between the masters and
crews of merchant vessels of the United States, I now transmit to you
a coj)y of a dispatch recentl}" received by the Department from the
United States vice-consul at Hong-Kong, together with a copy of its
inclosures, relating to a case between Joseph D. Ellis, the steward of
the American ship Lathley Rich, and Thomas Mitchell, the master
of that vessel, in which the jurisdiction comi)lained of was assumed
and exercised by the local courts of that colony. Complaints have also
recently reached the Department from Melbourne and Singapore of a
similar assumption of jurisdiction by the local courts of these colonies.

"The laws of the United States make ample provision for the regula-
tion and protection of the seamen of the United States, and for the set-
tlement of all disputes which may arise between the masters and crews
of American vessels before the consuls of the United States resident in
the ports of foreign countries, carefully reserving, at the same time, to
the i)arties all the rights and remedies that are secured to them bylaw
through the courts of the United States.

"Regulations similar in character for the government and police of .
their merchant marine are established by the Government of Great
Britain, and, indeed, by the Governments of most, if not all, commercial
nations, and this Government has never failed to recognize the effect-
ive beneficence of such domestic regulations in promoting discipline,
order, and good government on vessels engaged in the merchant serv-
ice. They rest upon principles of convenience, international comity,
and well-settled rules of public law. The claim of jurisdiction made by
the local common-law courts of Great Britain, and particularly by the
colonial tribunals, is conceived to be in contravention of those prin-
ciples ; and the exercise of it, moreover, calculated to work serious in-
jury to the commerce of the United States in tliose i)orts where it ob-
tains, and to the interests of the vessels which, from time to time, be-
come the sul)iects of su(;h unauthorized interference.

"Acting in the spirit of these views, this Government has on several
occasions, when interference of a similar character by local courts or
magistrates of this country, in the case of i:>ritish vessels, has been
brought to its notice by Her Majesty's Government, i>romptly made
such complaints the subject of in(]uiry and correction.

119

§ 33.] SOVEREIGNTY OVER WATER. [CHAP. II.

"On the llKli of Februaiw , 1873, Her Majesty's minister at this capital
brought to the attention of the Department a case, occurring at Galves-
ton, Texas, in which the master of the British ship Bucephalus had
been arraigned before a local State magistrate, who happened, also, to
be a United States commissioner, upon the complaint of one Thomas
Moffit, a seaman of that vessel, for an alleged assault, commenced while
the ship was at sea and continued after her arrival at that i)ort. The
case was referred by this Department to the Attorney General, and that
officer instituted an immediate investigation. It was found, upon in-
quiry, that the magistrate in question had instituted the proceedings
in his capacity of justice of the peace, an office which he held under
the laws of the State of Texas, and not as United States commissioner,
and that upon being advised by the United States district attorney for
that district that it was not a matter of which either the authorities of
the United States or of the State should take cognizance, the master
being amenable to the laws of the nation to which his vessel belonged,
the complaint was at once dismissed by the magistrate. In the same
note the British minister complained of certain proceedings of two
United States commissioners at Tsew Orleans with reference to the
discharge of seamen from a British vessel at that port, the seamen in
question being citizens of the United States and claiming the interposi-
tion of the local authorities on that ground. These officers were also in-
structed that such interference with the police regulations established by
Great Britain for the government of their merchant vessels was contrary
to the policy of this Government, and that even in cases where the right
of the local magistrates to assert the jurisdiction was undoubted, its
exercise should be avoided. These instructions have been adhered to,
and there has since been no recurrence at that port of the interference
then complained of.

"In another case, which occurred at Charleston, S. (J., and which was
brought to the attention of the Dej)artment by Sir Edward Thornton
in a note of the 6th of May, 1874, in which it appeared that John Bogan,
a seaman of the British ship Amelie, complained before a United
States commissioner of ill treatment received at the hands of the cap-
tain of that vessel, it turned out, upon inquiry, that the commissioner
was not advised of the nationality of the vessel when he issued his war-
rant of arrest, and, that as soon as the fact was disclosed to him that
the occurrences complained of took place upon a British vessel, he
promptly advised the United States district attorney of that circum-
stance, and, upon the advice of the latter officer, immediately dismissed
the complaint.

" In these several cases,^occurring in the United States, it must also be
noticed that the proceedings were taken by petty or inferior magistrates,
who may not reasonably be supposed to be learned in the law^, while in
the case of the Lathley Eich, at Hong-Kong, the proceedings were
commenced before a nisi prius court and ultimately heard and detep-
120

CHAP. II.] SHIP NATIONALIZED BY FLAG. [§ 33.

mined on api)eal before the supreme court of tbe colony, and the .same
is true of some cases which occurred at Melbourne.

"The instances thus given, taken in connection with the practice and
doctrine laid down by Mr. Justice Betts in the United States court for
New York, sitting in admiralty, to which I adverted in my No. 476 to
you, serves to show the uniform regard in which these ])rinciples of in-
ternational comity and convenience have been held by the Government
of the United States.

" It is therefore with regret that 1 notice the absence of a reciprocal
respect for these principles in the administration of the local courts of
Great Britain, and particularly in Her Majesty's colonies, in their pro-
ceedings towards American merchant vessels.

" Bearing in mind the views expressed in my former instruction (No.
476), it is desired that you will take the earliest favorable opportunity
of bringing to the attention of Her Majesty's Government the case of
the Lathley Kich, now transmitted in connection with the general
question of the jurisdiction referred to, and you will represent to Earl
Derby the interest felt by this Government in the adoption of such
measures by that of Great Britain as will prevent a recurrence of such
cases, and be effective, especially as regards the colonial courts, in
putting a stop to this exercise of jurisdiction, at once injurious to the
interests of the vessels which may be the subjects of it, and the pos-
sible cause of international inconvenience to two nations so largely in-
terested in the commerce of the world as are those of the United
States and Great Britain."

Mr. Fish, Sec. of State, to Mr. Schenclc, March 12, 1875. MSB. lust., Great
Britain; For. Eel.. 1875.

The position that a ship at sea is a part of the country whose Hag she
bears is assailed in the North American Review of July, 1862 (vol. 95, 8),
and I he reason is given that such ships on entering ports are subject in
polic(> matters to the law of tbe port. l>ut the rule itself is subject to
this limitation, being only applicable to "ships at sea." It would be
MS lexical to deny the allegiance of a. subject to his sovereign on the
iiroiiiiU that when he sojourns in a foreign laud he becomes bound,
win II ill that land, by its police laws.

A ship cannot draw around her a line of jurisdiction and appropri^ite
so much of the ocean as she may deem necessary for her protection, and
l)!event any nearer approach.

The Marianna Flora, 11 Wheaton, 1.

A ship at sea is regarded in international law as a portion of the
territory of the nation whose tlag she carries and as subject to that
nation's jurisdiction.

(Jrapo r. Kelly, 16 Wa!):ic.>, (ilf).

" A vessel at sea is considered as i)art <»f the territory to whicli it be-
longs wben at home. It carries with if the local logal rights and legal

131

§ 33.] SOVEREIGNTY OVER WATER. [CHAP. II.

jurisdiction of such locality. All on board are endowed and subject ac-
cordingly."

Swayne, J. ; WilBOii v. McNamee, 102 U. S., 574; S. P., Maclachlan, Merch. Ship.,
3cl ed., G4, 65, 140.

A person on board of an American vessel is, in contemplation of law,
within the territory and jurisdiction of the United States.
Re Moucau, 14 Fed. Rep'r, 44.

" The extraterritorial jurisdiction of a nation, exclusive or concurrent,
extends over the following places :

" 1. All the land or water included within the lines of its fleets or
armies, exclusive in respect to its own members, and concurrent with
that of the nation owning the territory, in respect to members of that
or of any other nation.

" 2. All ships bearing its national character, exclusive except in the
case of a private ship within the limits of another nation, and in that
case, concurrent with such nation."

" 4. Vessels belonging to the citizens of the nation on the high seas,
and public vessels, wherever found, have some of the attributes of ter-
ritory.

Field, Int. Code, $ 309.

"In regard, however, to the territorial character of vessels it is nec-
essary to be more definite, for if they have thivS property in some re-
spects but not in all, only false and illogical deductions can be drawn
from an unqualified statement. Is it true, then, that they are iden-
tical in their properties with territory I If a shij) is confiscated on ac-
count of piracy or of violation of custom-house laws in a foreign port,
or is there attached by the owner's creditor and becomes his i)roperty,
we never think that territory has been taken away. For a crime com-
mitted in port a vessel may be chased into the high seas and there ar-
rested, without a suspicion that territorial rights have been violated,
while to chase a criminal across the borders and seize bim on foreign
soil is agross offense against sovereignty. Again, a private vessel when
it arrives in a foreign port, ceases to be regarded as territory, unless
treaty provides otherwise, and then becomes merely the property- <>t
aliens. If injury is done to it, it is an injury which indirectly alic'cts
the sovereign of the alien, whereas injuries to territory, properly so
called, affect the public power in an immediate manner. It is unsafe,
then, to argue on the assumption that ships are altogether territory, as
will appear, jjerhaps, when we come to consider the laws of maritime
warfare. On the other hand, private ships have certain qualities iv-
sembling those of territory : (1) As against their crews on the high
seas ; for the territorial or municipal law accompanies them as long as
they are beyond the reach of other law, or until they come within the
bounds of some other jurisdiction. (2) As against foreigners, who are
excluded on the high seas from any act of sovereignty over them, just
as if they were a part of the soil of their country. Public vessels stand
on iiigher ground; they are not only public i)roperty, bnilt or bought
by the Government, but they are, as it were, floating barracks, a i)art
of the jiublic oiganism, and iei)resent the national dignity, and on these
accounts, even in foreign ports, are exempt from the local jurisdiction.
In both oases, however, it is on a<'count of the crew, lather than of the

122

CHAP. II.] ClilAlES AT SEA. [§ odd.

ship itself, that they have any territorial quality. Take the crew away,
let the abandoned hulk be met at sea; it now becomes property, and
nothing more."

Woolsey, Int. Law, vS 54.

IX. CRIMES AT SEA SUBJECT TO COUNTRY OF FLAG

§ 33«.

"I have no doubt that an offense, committed on board a public ship
of war, on the high seas, is committed within the jurisdiction of the
nation to whom the ship belongs. How far the President of the
United States would be justifiable in directing the judge to deliver
up the offender is not clear. I have no objection to advise and re-
quest him to do it."

President Adams to Mr. Pickering, Sec. of State, May 21, 1799; 8 John Ad-
ams's Works, 651.

[The district judge of South Carolina had declined to deliver up to Sir Hyde
Parker a seaman who had been engaged in a mutiny and murder of the oflS-
cers of the British frigate Hermione.]

As to Robbins' case, see infra, ^ 271a.

" I inclose herewith a copj- of a dispatch recently received from A.
C. Litchfield, esq., consul-general of the United States at Calcutta, in
relation to the case of one John Anderson, an ordinary seaman on
board the American bark C. O. Whitmore, who, it api)ears, stabbed
and killed the first officer of the ship on the 31st of January last,
while that vessel was on her way from New York to Calcutta, sixteen
days from her port of departure, and on the high seas in latitude 25°
35' ^N". and longitude 35° 50' W.

"You will perceive that the consul-general invoked the aid of the
local police authorities in securing the safe custody of the accused,
who was a prisoner of the United States, until he could complete the
necessary arrangements for sending him to this country for trial,
against whose municipal laws only he was accused of having of-
fended, and that while thus in tbe temporary custody of the local po-
lice, the colonial authorities took judicial cognizance of the matter,
claiming, under the advice of the advocate-general of the colony, that,
under a colonial statute, which confers upon the courts of the colony
jurisdiction of crimes committed by a British subject on the high
seas, even though such crimes be committed on the ship of a for-
eign nation, and that inasmuch as the accused, although appearing
on the ship's articles under the name of John Anderson, subject of
Sweden, had declared that his real name was Alfred Hussey, and that
he was a native of Liverpool and therefore a British subject, the case
came within the jurisdiction of those courts.

'•The matter is now believed to ha\'e reached that i)uint in the judi-
cial proceedijigs wheie effective measures for asserting the jurisdic-

123

^N 33a.] SOVEREIGNTY OVER WATER. [CHAP. II

tional rights of the United States would be unavoidable in this par-
ticular case. And whilst I entertain no doubt that the accused will
receive as fair a trial in the high court of Calcutta, where it is under-
stood he is to be tried, as he would in the circuit court of the United
States, in which tribunal he would be arraigned were he sent here for
trial, I deem it proper, at the same time, to instruct you to bring the
question to the attention of her Majesty's Government, in order to
have it distinctly understood that this case cannot be admitted by this
Government as a precedent for any similar cases that may arrise in
the future. No principle of public law is better understood nor more
universally recognized than that merchant vessels on the high seas
are under the jurisdiction of the nation to which they belong, and
that as to common crimes committed on such vessels while on the high
seas, the competent tribunals of the vessel's nation have exclusive ju-
risdiction of the questions of trial and punishment of any person thus
accused of the commission of a crime against its municipal laws; the
nationality of the accused can have no more to do with the question
of jurisdiction than it would had he committed the same crime within
the geographical territorial limits of the nation against whose munic-
ipal laws he offends. The merchant ship, while on the high seas, is,
as the ship of war is everywhere, a part of the territory of the nation
to which she belongs.

" I pass over the apparent breach of comity in the proceeding of
the colonial ofl&cials as being rather the result of inadvertence and
possible misconception on the part of the Government law officer of
the colony, than any design to question the sovereignty of the United
States in this or cases of a similar nature."

Mr. Evarts, Sec. of State, to Mr. Welsh, July 11, 1879. MSS. Inst., Great Brit. ;

For. Rel., 1879.
That a crime by a foreigner in a United States ship is cognizable by the United

States, see, further, Whart. Cr. Law, S 269.
Cf. notice of Ross' case in President Arthur's first annual message, Dec. 5, 1681,

infra, ^ I'i.'j.

•' Referring to my instruction No. 328, of the 11th instant, in relation
to the case of John Anderson, alias Alfred Hussey, and the claim of
jurisdiction advanced and exercised in relation thereto by the high
court of Calcutta, a British tribunal, notwithstanding that the accused
was a seaman upon the American bark C. O. Whitmore, and the crime
for which he was tried was committed on the high seas, I have now to
transmit for your further information, and as material to the intelligent
discussion of the points involved, should Her Majesty's Government
provoke argument thereon, copy of an additional dispatch, dated the
10th ultimo, received from Consul-General Litchfield, in which the later
proceedings of the high court. (;oniprisin<i further assertion and exercise
of jurisdictional power in tlie premises, are so fnlly set forth that it is
found unnecessary to your understanding of the e;ise to send you trans-
cript of the voluminous appendices transmitted by the consul-general.
124

CHAP. II.] CRIMES AT SEA. [§ 33a.

" Pending Xlie, reply of Her Majesty's (Jioverimient lo tlic dispassion-
ate representations you liave already been directed to make, I liave no
farther observations to add to tliose of the consul-general than to re-
mark that, while the verdict of the jury, convicting the man of man-
slaughter, seems to have been technically right as to the degree of the
Clime committed, the partiality and unfairness of the proceedings,
wiiich this Government had confidently hoped would be marked by the
most signal impartiality and fairness, cannot but be deduced from the
result of the trial. I refer especially to the keeping back of the testi-
mony of witnesses who would have shown aggravating circumstances
of guilt; in the notably strong recommendation to mercy; and, more
than all, in the character of the sentence, a purely nominal punishment,
such as would be usually injiicted for a slight contempt of court, and
unheard of before in any British court as a measure of the penalty ibr
manslaughter, the conviction for which rested on the verdict of a jury,
the prisoner having been set free within forty-eight hours, without even
the form of executive clemency. These facts are here thought to justify
what might otherwise seem to be the heated and indignant comments
of Mr. Litchfield on the affair ; and should the assumption of Ijritish
jurisdiction in the case be defended by Her Majesty's Government, the
(•ircumstances adverted to would seem proper to be brought to Lord
Salisbury's attention, with all the temperance of representation per-
mitted by the facts themselves, and as justifying the ground taken,
with respect to such assumption of jurisdiction, in my previous instruc-
tion No. 328."

Mr. Evarts, Sec. of State, to Mr. Welsh, July 29, 1879. MSS. lust., Great Brit.;
For. Eel, 1879.

" I have to acknowledge the receipt of your dispatch No. 17, of the
IGth ultimo, inclosing a copy of the correspondence between your lega-
tion and the foreign office in relation to the case of John Anderson, who
was tried in Calcutta for a crime alleged to have been committed on
board a vessel of the United States on the high seas, which corre-
si>ondence contains an expression of the regret of Her Majesty's Gov-
ernment that the action of the authorities at Calcutta in the case in
question should have been governed by a view of the law which, in the
o])inion of Her Majesty's Government, cannot be supported.

" In reply, I have to instruct you to convey to the proper quarter an
expression of this Department's appreciation of the candor and good-
will with which Her Majesty's Government have considered this matter,
and to say, moreover, that it has afforded this Government great satis-
faction to learn that the action of the authorities of Calcutta in the case
of Anderson is to be attributed to a misconception, and not to any de-
sign to question the jurisdiction of the United States in that or any
similar case."

Mr. Hay, Acting Sec. of State, to Mr. Lowell, July 7, 1880. MSS. Inst., Great
Brit. ; For. Eel, 1880.

125

§ 33a.] SOVEREIGNTY OVER WATER. [cHAP. 11.

The Govonimciit o\' Chili has no jurisdiction over a merchant vessel
of the United States on the hijjh seas so us to enable it to proceed
a.yaiiist that vessel or its otticers, when in a Chilian port, lor cruelty
on the hij:li seas to a Chilian subject on board that vessel.

Mr. Frolin^^buyseii, Sec. of State, to Mr. Logan, Oct. 15, 18r;3. MSS. Inst.^
t"hili.

Murder or robbery committed on the high seas may be cognizableby
the courts of the United States, though committed on board of a vessel
not belonginj,^ to citizens of the United States, if she had no national
character, but was held and possessed by pirates or persons not law-
fully sailing under the flag of any foreign nation.

U. S. V. Holmes, 5 Wheaton, 412. Infra, $ 380, g.

Where a gun was fired from an American ship lying in a harbor of
one of the Society Islands, killing a person on board a schooner be-
longing to the natives in the harbor, it was held by Judge Story that
the act was, in contemplation of law, committed on board the foreign
schooner where the shot took effect, and that jurisdiction of the ofiense
belonged to the foreign Government and not to the courts of the United
States. Where a prisoner under such circumstances was sent home for
trial, it was held that the court had no jurisdiction.
U. S. r. Davis, 2 Sumner, 482.

Offenses committed on the high seas, on vessels belonging exclusively
to the subjects of a foreign power, are not punishable in the courts
of the United States.

3 0i>., 4^*4, Grundy, 1839.

Crimes committed on board a merchant ship on the high seas are
triable only by the authorities of the country to which she belongs.

Theauthorilies of a foreign country may, at the instance of a consul
from the country to which the ship belongs, assist in detaining the
persons charged, but they cannot detain them otherwise.

A fortiori, they cannot go on board the shij) and rearrest them. after
they have been in their custody and have been returned.

The citi/.ensliip of the accused does not aliect the question of juris-
diction.

8 Op., 73, Cusliing, 1K'>6.

See .li8cus8ion ..f this case in Mr. Marcy's instructions to .Mr. Mason, Sept. 8,
1<.6. MSS. Inst., France.

"Tl.e eourt.s of the United States have no jurisdiction to redress
.110 .s,,,,oscd torts eomn.ittedou the high seas upon the property of
Vicn IK r^ •' ''' '"'T''^ ^^^-"^a!:^^- commissioned by a foreign and
io f t' .Tl • ^',^;'''l^^^^^r^ ''^"<^»' cruiser has been fitted out in viola-
^nd n ini r 1 •'; i^''*' coui-tsofthe captors are open for redress,
and an injured neutral may there obtain in.lenniitv for a wanton o^
126

CHAP. II.] PORTS. [§ 34.

illicit capture. JSIor is the jurisdiction of the neutral court enlarged by
the fact that the corpus no longer continues under the control of the
(capturing i)()\ver. The Estrella, 4 Wheat., 29S."

2 Hallcck'8 Int. Law (IJaker'.s ed.), 208.
As to piracy, see infra, ^^ '^60 J)'.

X. POETS OPEN TO ALL NATIONS.

§34.

As to nou-intercourse, see infra, § 319.

As to embargo and closure of ports, see infra § 320.

As to neutral's duty in excluding belligerent operations, see infra, $ 398.

As to asylum to belligerent ships, see infra, § 394.

As to territorial waters in general, see supra, ^ 26.

" 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 obe-
dience 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 Mr. De Onis, Jan. 19, 1816. MSS. For. Leg. Notes.

While it was permissible, under the law of nations, for China, during
the French-Chinese war, to sink obstructions in Canton River for the
jjurpose of preventing the access of French men-of-war to Canton, such
obstructions can only be retained as long as needed for belligerent pur-
poses. Their removal after peace is required, not merely by the treaties
entered into b^^ China making Canton an open port, but by the law of
nations.

See infra, '^ 3Gla.

Unless closed by local law, the ports of a friendly nation are con-
sidered as open to the public ships of all powers with whom it is at
peace, and they are supposed to enter such ports, and to remain in them
while allowed to remain, under the j^rotection of the Government of the
place. The implied license, under w^hich such vessel enters a friendly
port, may reasonably be construed, and, it seems to the court, ought
to be construed, as containing an exemi)tion from the jurisdiction of
the sovereign within whose territory she claims the rights of hospital-
ity.

The Exchange v. McFaddon, 7 Cranch, 116, infra, ^ 36.

The hospitality of the ports of the United States, when a neutral, is
extended equally to the vessels of each belligerent, when visiting for

127

v<; 3r).] SOVKh'KIfJNTV oVKk WATKR. JCHAI'. II.

purposes ul cDiiM'iiic lice, (tf u lifii driven t(t take lefugf from stoiiiis

oj' ;i siijterioi- ii;i\ III Inlf'e.

Mr. Clay, .Si-c. oCStati-, to Mr. Tacou, Oct, 27, 1827. MSS. For. Log. Notes. Mr.

(.'lay to Mr. Iteliello, Apr. 8, 1828; ib.
A.s to e.\fnii)tious in ciiscm of cDtraiice through stress of weather, or force, see

infra, ^ :{d.

XI. MERCHANT VESSELS SUBJECT 10 POLICE LAW OF PORT.

§ 35.
[See, as to consular jurisdictiou iu ports, infra, ij 124.]

Merchant vessels in port are subject to the police law of the port.
Mr. Everett, Sec. of State, to Mr, Ingereoll, Feb. 17, 1853. MSS. Inst., Great
Britain.

The iibdnctioii by Chilian authorities, in a Chilian port, from a United
States whi'.Iinf;- ship, of sailors claimed to be Chilians, in time of peace,
and without Justifiable necessity, is an act at variance with the comity
of nations, for which the Chilian Government may justly be held re-
si)onsil)le.

Mr. Webster, Sec. of State, to Mr. Peyton, July 2, 1851. MSS. Inst., Chili.

"There is no doubt of the jurisdiction of our officers and tribunals to
interfere in the way of prevention or of punishment in breaches of the
peace occurring in American waters upon foreign vessels. There is no
reason why our police, civil or naval, should hesitate to board a British
vessel for the purpose of quelling a mutiny attended with assaults upon
the otiicers or violent resistance to the exercise of their legitimate au-
thority in subjecting refrnctory seamen to temporary confinement. The
difficulty, however, is supposed to arise in cases where seamen simply
refuse to work, and where confinement of them would reduce the vessel
to a floating jail, without the power of motion. The remedy that is sup-
})o.sed to be wanted is a compulsion upon the men to do their duty — in
other words, to enforce a specific obligation of their contract. No offi-
cer or tribunal of the United States has the capacity to apply such a
remedy except in execution of a treaty or convention, which seems
necessary ns the basis of laws of Congress regulating the mode of pro-
cedure. A treaty is also necessary to justify the detention here of a
foreign seaman upon the order of his consul, or otherwise than as a
criminal offender.

"For any intervention beyond the limits thus indicated an agreement
between the two (Governments would seem to be requisite. I have to
remark, however, that the question which I have discussed is purely a
legal one, upon which I ought to reserve myself for consultation with
the Attorney-General."

Mr. Spwar.1. Sec. of State, to Mr. Bruce, Mar. W, 1866. MSS. Notes, Great
Britain.

128

CHAP. II.] LAW OF PORT. [§ 35.

"The bark and her master being within the jurisdictional limits of
the State of Georgia, the master undertook to resist by force civil
process of the State issued against him and the owners of the vessel.
For this offense against the State a criminal proceeding was instituted,
and the captain was arrested. He then gave bond in the civil suit and
the criminal prosecution was abandoned. There can, I presume, be
no doubt that for the purposes of these legal proceedings the vessel
and her master were at the time subject to the jurisdiction of Georgia,
and he was bound to submit to the execution of process issued by her
regular constituted authorities. I am, therefore, unable to see in the
case any ground for complaint by the Spanish Government against the
United States."

Opiuion of the Attoruey- General quoted by Mr. Evarts, Sec. of State, iu note
to Mr. Mendez, Dec. 27, 187D. MSS. Notes, Spain.

"There has never been the slightest doubt as to the entire legality of
extraterritorial jurisdiction when acquired in foreign jjorts by treaty.
The first treaties creating such rights were concluded in 1787 and 1788,
almost simultaneously with the adoption of the Constitution, and were
understood by the framers of the Constitution as compatible therewith.
In the next sixty years several other extraterritorial treaties were con-
cluded, but no law was even deemed necessary to the execution of those
treaties until 1S08, and then the statute aimed simply to codify the
treaty rights acquired in a convenient form ; it could not create them.
And finally the circuit courts of the United States have fully sustained
the constitutionality of the existing statutes."

Mr. Frelingbuysen, Sec. of State, to Mr. Gardiner, Mar. 16, ISS'A. MSS. Dom.
Let.

A merchant vessel, e3:cept under some treaty stipulation, has no ex-
emption from the territorial jurisdiction of the harbor in which she is
lying.

15 0p.,178,Taft, 1876.

The violation, by the master of an American vessel at a port in Ja-
maica, of the British revenue laws, is not punishable by any statute of
the United States.

16 Op., 283, DevenB, 1879.

Unless treaty stipulations provide otherwise, a merchant vessel of
one country visiting the ports of another for the purpose of trade is,
so long as she remains, subject to the laws which govern them.
U. S. V. Diekelman, 92 U. S., 520.

"In 1856 a case arose iu reference to seamen supposed not to be citi-
zens of the United States, who, havitig committed a mutiny at sea, on
board of the American vessel Atalanta, were brought back in the vessel

S. Mis. 1G2— VOL. I 129

^ ;i5a.] SOVEREIGNTY OVER WATER. [CHAP. 11.

to MiirsrilU's, wlicic. on tlie ai)plicatiou of the consul of the Uuitcd.
States, they were receive*! juitl in)i)risoned by the h)cal authoritiis on
shore. Six of ti)(Mn were atterwanls, on his application, taken from
l>ri.son and phiced on board of the Atalanta for conveyance to the United
States, undt'r charjic of crime. Then, with notice to the consul, but iu
spite of his remonstrances, llie local authorities went ou board of the
Atalanta, for<;ibly resumed i)ossession of the prisoners, and replaced
them in conlineiuent on shore. Mr. Mason, in a note of the 27th of
.June, bSoO, says: ' It is the lirst instance in which a vessel wearing the
ildtx of the United States, lying in a Fnuich port, or a French ship lying
in a i)orf of the United States, has, since the date of the treaty, been
visited by j.olice oHicers without the authority of the consul.' (MS.
l)c|)artm<-nt of State.) The correspondence berween the tw^o Govern-
ments having been submitted to the Attorney-General of the United
States, he concurred in opinion with the American minister, that the
local authority of Marseilles exceeded its lawful power, in substance as
well as in form, and that there could be no conflict on the part of France
with other ])owers on account of the nationality of the prisoners, for
they were always in the constructive, if not in the actual, custody of
the UiMted States, Opinion of Attorneys General, vol. viii,p. 73."

Lawrence's Wheaton, ed. 1863, p. 207.

"The state of international law on the subject of private vessels iu
loreign ])orts * * * may be said to be this : So far as regards acts
«ione at sea before her arrival in port, and acts done on board in port
by members of the crew to one another, and so far as regards the gen-
eral regulation of the rights and duties of those belonging on loard,
the vessel is exempt from local Jurisdiction; but, if the acts done on
boanl ati'ect the i)eace of the country in whose port she lies, or the per-
sons or property of its subjects, to that extent that state has jurisdic-
tion. The local authorities have a right to visit all such vessels to as-
certain the nature of any alleged occurrence on board. Of course, no
exemption is ever claimed for injuries done by the vessel to property or
]>ersons in port, or for acts of her company not done on board the ves-
sel, or for their personal contracts or civil obligations or duties relating
to persons not of the ship's comi)auy."

D.-iiia's Wheaton, ^ 9.'), note .5H.
XII. CHIMES ON SUCH VESSELS, MOW FAR SUBJECT TO PORT LAW.

§ 35a.

The sovereign of a port has, by the law of nations, jurisdiction of
criminal offenses aboard merchant vessels of such port, which disturb
the peace of the port.

See Mr. Van Buren, Sec. of State, to Mr. Roux de Roclielle, Jan. 27, 1831. MSS.
For. Leg. Notes.

^ An assault committed on board a United States merchant ship in a
yew Granada port, on a citizen of ^'ew Granada, is cognizable by New
Granada, and not by the United States.

Mr. Marcy. .Sep. of State, to Mr. Paredes, Sept. 27, 1853. MSS. Notes, Colombo
130

CHAP. II.] LAW OF PORT. [§ 35a.

"As to the jurisdiction over offenses committed on board of ii mer-
chant vessel by the ofl&cers or company of the vessel, towards each other,
while in the harbor or waters of a foreign power, there is considerable
diversity of opinions. Some nations yield the jurisdiction in such cases,
and some assert it.

"If the United States claim jurisdiction over all offenses committed
on board of foreign private vessels in their harbors or waters, they
cannot, with consistency, assert the right to have their citizens exempt
from the jurisdiction of the local authorities when they commit similar
offenses in foreign ports.

"This question of jurisdiction has been under the consideration of the
Supreme Court of the United States. The views expressed by that
court are those which this Government approves, and is disposed to
abide by in its intercourse with foreign nations.

"As a general rule, the jurisdiction of a nation is exclusive and abso-
lute within its own territories, of which harbors and littoral waters are
as clearly a part as the land. Eestrictions may be imposed upon it by
treaties and a few have been yielded by common consent, and thus have
come to be regarded as rules of international law.

"There is nothing in our treaty with Peru which debars her from
taking cognizance of such an offense as is imputed to Captain Adams.
Our right to withdraw him from her general jurisdiction over offenses
committed within her territories must be derived, if we have sucL a
right, from the law of nations."

Mr. Marcy, Sec. of State, to M-. Clay, Aug. 31, 1855. MSS. lust., Peru.

"We should undoubtedly deny the right of any foreign power to de-
mand the exemption from trial and punishment by our courts, of one of
its subjects, who had committed a crime on board of a foreign trading
vessel in one of our harbors, though the offense should be one which
only affected the officers, crew, or company of that vessel. Circum-
stances might render it proper to forego the exercise of the right to try
such an offender, but still the right would exist, and it would be at our
option to yield or enforce the exercise of it.

"This being our position towards all nations where treaty stipulations
do not interfere, they can hold the same position towards us without our
being able to gainsay it."

Ibid.

"This Government does not apply the doctrine of extraterritoriality to
its private or merchant ships in foreign ports, except in cases where it
has been conceded by treaty or established usage, and it does not pre-
tend that it has been so conceded in criminal cases to American mer-
chant vessels in British ports. * * *

"While each country can unquestionably exercise jurisdiction in its
own ports over the private or merchant vessels of the other, it is pre-
sumed there is a mutual disposition on both sides not to exert it in a

131

§ 35a.] SOVEREIGNTY OVER WATER. [CHAP. II.

^v;ly whk-b will intcrnMe witU the i)roper discii)line of the ships of either
nation. It every coiiiplaiiit of any individual of the crew of the vessel
against the officers for ill-treatment is to be taken up by the civil au-
thorities on shore, and these ofiicers prosecuted as criminals, comnjercial
intercourse will be subjected to very great annoyance and serious det-
riment."

Mr. Marcy, Sec. of State, to Mr. Crampton, Apr. 19, 1856. MSS. Notes, Great
Britain.

"The right of the Italian authorities to search a (merchant) vessel in
their ports for a person charged with crime is entire, unless it shall have
been surrendered by treaty, which was not the fact in this instant e.
Though the deserter did not prove to be amenable to the jurisdiction of
the local authorities, as he was arrested by taem at the instance of the
British consul, they may have supposed that they were only discharg-
ing their duty in the matter."

Mr. Fish, Sec. of State, to Mr. Marsh, May 2, 1876. MSS. Inst., Italy.

" I have the honor to acknowledge the receipt of your note of the 9th
instant, in relation to the cases of the captains of the Hungarian mer-
chant vessels Ararat and Mimi P., in which you request, on behalf of
your Government, to be put in possession of the views of the Govern-
ment of the United States on the question of local jurisdiction in%-olved
in the case referred to.

" I inclose herewith a copy of an opinion of the Attorney -General of
the Mtli July last, in response to the request I made of that functionary
on the 27th of June of the same year, and of which I had the honor to
inform Count Lippe-Weissenfeld.

"Your contention rests on the eleventh article of the consular con-
vention concluded between the United States and the Austro-Hungarian
monarchy on the 11th July, 1870. The article referred to is in the fol-
lowing words, namely:

" Consuls, vice-consuls, or consular agents shall hare exclusive charge
of the internal order of the merchant vessels of their nation. They
shall have, therefore, the exclusive power to take cognizance of and to
Pet tie all differences which may arise at sea or in port between captains,
ofiticers, and crew in reference to wages and the execution of mutual
contracts, subject in each case to the laws of their own nation.

'•The local authorites shall in no way interfere, except in cases where
the differences on board ship are of a nature to disturb the peace and
pnbl'c order in port or on shore, or when persons other than the oflicers
and crew of the vessel are parties to the disturbance. Except as afore-
said, the Jocal authorities shall confine themselves to the rendering of
forcible assistance if required by the consuls, vice-consuls, or consular
agents, and shall cause the arrest, temporary impriwsonment, and
removal on board his own vessel of every person whose name is found
on the muster-rolls or register of the ship or list of the crew.
132 «

CHAP. II.] LAW OF PORT. [§ 35rt.

"I find no difljci.lty iu tigreeiiig witli your statement, tbat by the
general principles of international law private or mercbant vessels en-
tering the i)orts of another nation than their own are subject to the
local jurisdiction ; and 1 also recognize at once the conveuience and
desirability of the rule you suggest as that adopted by France, and fol-
lowed bj' some other nations, that local courts should decline to take
jurisdiction of cases involving acts of mere interior discipline of the
vessel. Such, indeed, has been the course recommended by the execu-
tive branch of this Government to the courts, and it gives me pleasure
to be able to add that both the Federal and State courts have as a
general rule conformed their proceedings iu such cases to that sugges-
tion. These tribunals, however, are bound under the Constitntion and
laws of the United States to entertain every complaint in which is pre-
sented a prima facie case of violation of the local laws, and it conse-
quently becomes necessary in such cases that the judge should hear the
evidence before he is able to determine whether the case is one of mere
discipline connected with the ship, or whether it is of such ? nature as
to involve a distuibance of the public order in port or on shore; and
bound by the same constitutional and statutory provisions the execu-
tive branch of the Government must refrain from a^l interference with
the judicial tribunals in regard to cases or questions that may be pend-
ing before such tribunals. No doubt is entertained, however, but that
the declarations of the courts will always be had, and their decisions
be always rendered with a due regard lor the obligations of the Govern-
ment under its treaty stipulations with foreign powers.

"The President, I need scarcely add, will ever deem it his duty to
give full efiFect, in spirit and in letter, to the provisions of the conven-
tion of July, 1870, between this Government «"nd that of Austria-Hun-
gary, which you so worthily represent."

Mr. Frelingliuysen, Sec. of State, to Banm Schaefier, Nov. I'.l, 1883. MSS.

Notes, Austria ; For. Rel., 1883.
In For. Rel. for 18«3, 17 _^, is given a full report of the trial of Com. v. Ferlan,

Philadelphia, 1883, referred to in above note.
As to treaty, infra, § 141.
As to consular jurisdiction, infra, $ 125.

"A merchant vessel in port is within the jurisdiction of the country
owning the port, with reference to offenses committed on shore or by
any member of the crew on board, when the peace of the port is dis-
turbed. In the United States police officers have frequently gone on
board vessels of foreign nations in harbor and arrested persons accused
of crimes under our laws, for whose arrest proper warrants were issued.
A case of this kind, with which you perhaps are familiar, was decided
by a Philadelphia court about a year ago, which arose from the arrest
of the master of an Austrian vessel." ,

Mr. Frelinghnysen, Sec. of State, to Mr. Randall, Mar. 11. 1884. MSS. Dom. Let.

133

^S :]ort.J SOVEREIGNTY OVER WATER. [CHAP. II.

'• It may be safely affirmed tbat when a mereliant vessel of one couu
try visits the jwrts of another for the purposes of trade, it owes tem-
jtoiary allej,nance and is amenable to the jnrisdiction of tbat country,
and is subject to the laws which govern the port it visits so long as it
remains, unless it is otherwise provided, by treaty.

" Any exemption or immunity from local jurisdiction must be derived
from the consent of that country."

ilr. Bayard, Sec. of State, to Mr. Hall, March 12, 1885. aiSS. lust. Cent. Am.
For. Rel., 1885.

" Generally s])eaking, the consul in Hayti has jurisdiction of all dis-
]>utes on ship board, not affecting the peace of the port, but as this
light is not specially conceded by treaty it could only be claimed and
exercised by comity, and in the absence of any competent claim of
jurisdiction by the local courts, unless indeed the right may spring from
Art. XXXIII of said treaty, the most-favored-nation clause."

Mr. Bayard, Sef. of State, to Mr. Thomps^on, July :U, 18S5. MSS. lust., Hayti.
See as to jurisdiction in Japan, infra, ^ 125.

The local port authority has jurisdiction of acts committed on board
of a foreign merchant ship while in port, ])rovided those acts affect the
])pa('e of the port, but not otherwise ; and its jurisdiction does not ex-
tend to acts internal to the ship, or occurring on the high seas.

The local authority has right to enter on board a foreign meichant-
junn in ])ort for the pnqiose of inquiry universally, but for the purpose
of arrest only in matters within its ascertained jurisdiction.

8 Op., 73, Gushing, 18.'i6.

(For ah account of tlie cases of the Newton and the Sally, iuvolviuj;' the qyues-
tion of the jurisdiction of United States consuls over crimes committed on
board United States vessels in French ports, seel PLillimore hit. Law (3
ed.),484.)

The circuit courts of the United States have not jurisdiction, under
the crimes act of the 30th of April, 1790, of a manslaughter committed
on an American vessel in a river within the jurisdiction of a foreign
sovereign.

V. S. I-. Wiltheroer, 5 WheatOn, 76.

But see Thomas r. Lane, 2 Sumii., l,aud \1. S. r. Goomhs, 12 Pet.. 72, cited
iv/ra.

It was held by the English judges, on a case reserved in 1868. that
"The admiralty jnrisdiction of England extended over British vessels,
not only when they are sailing on the high seas, but also when they
are in the rivers of a foreign territory at a ])lace below bridges, where
tin- tide ebbs and flows, and where great ships go. It was also held
that all seiimen, whatever their nationality, serving on board British
vessels, are amenable to the provisions of British law."
R. r. Anderson, L. R.. l-G. C. R., 1(31.

" It is clear," said Bovill, 0. J., in the course of his opinion, citing
Ortolan, " that with regard to merchant vessels of foreign countries,

134

CHAP. II.] LAW OF PORT. [§ 35a.

flic French iiatiou do not assert their i)olice law against the crews of
Those v'essels unless the aid of the Frencli authority be invoked by those
on botird, or unless the offense connnitted leads to some disturbance in
their ports." "As far as Amei'iea is concerned " (the defendant was an
Aniericiui citizen), "she has by statutes made regulations lor those on
board her vessels in foreign ports, and we have adopted the same course
in this country. When vessels go into a foreign port they must re-
spect the laws of that nation to which the port belongs, but they must
also respect the laws of the nation to which the vessel belongs." To
sustain the position that in such cases the admiralty has jurisdiction
were cited : Thomas v. Lane, 2 Sumner, 1, and U. S. v. Coombs, 12 Pet.,
72, which cases, it was maintained, overruled U. S. v. Wiltberger, 5
Wheat., 70.

In E. V. Keyn, L. li., 2 Ex. D, 23 ; 13 Cox, 403, a case growing out
of the Franconia disaster, it was ruled in England, that the court of
criminal appeal has no jurisdiction to try a foreigner, who, in a foreign
ship, is chargealde with a negligent collision, producing death in the
colliding English shij), though the collision was within three miles of the
English coast. The vote of the court, however, on this point was seven
to six: Aft'., Cockburn, C. J., Kelly, C. B., Brainwell, J. A., Lush, J.,
I'ollock, B,, Field, J., and Sir R. Phillimore; diss.. Lord Coleridge, C.
J., Brett, J., Amphlett, J. A., Grove, Den man, and Lindley, JJ.

This case, with the subsequent legislation, is discussed in 1 Crim. Law
Mag., 701, #.

The points taken by Cockburn, C. J., in which a majority of the
judges agreed, were as follows :

" ' The extent of the realm of England is a question, not of inter- .
national but of English law.

" 'There is no evidence that the sovereigns^of this country ever either
claimed or exercised any special jurisdiction over a belt of sea adja-
<;ent to the coast, though there is evidence that the admiral has always
claimed jurisdiction over persons on board of British ships, wherever
they might be, and that he formally claimed jurisdiction over all persons
and all ships in the four narrow seas. This claim, however, has long
since been given u|> and no other claim has ever been substituted for it.
"'Hence there is no evidence that any British court has jurisdiction
over a crime committed by a foreigner on board a foreign ship on the
high sea, but within three miles of the coast.'"

2 Steph. Hist. Cr. Law, 31 ; 1 Wbait. Cr. Law (9ed.), § 269.

In R. V. Keyn, above cited, it was said by Sir R. Phillimore that " the
eonaensus of civilized nations has recognized a maritime extension of
frontier to the distanceof three miles from low- water mark, because such
a frontier or belt of water is necessary for the defense and security
of the adjacent state." By Lindley, J., it was said that "it is conceded
that even in time of peace the territoriality of a foreign merchant-ship,
within three miles of the coast of anj^ state, does not exemi)t that ship
or its crew from the operation of those laws of that state which relate
to its revenue or fisheries." In this doctrine the judges generally con-
curred, though it was held, by a majority of seven to six, that the juris-
diction, without some legislative action, could not be exercised for the
purposes of criminal prosecution over foreigners within such limits. In
1878 was passed the act of Parliament giving such jurisdiction. [Quoted
supra, § 32.]

See Whart, Conf. of Laws, § 818.

135

^S 3G.J sovei:eignty over water. [chap. ii..

XIII. NOT so AS TO PUBLIC SHIPS.
§30.

Ah to recoption in nontral porta of belligerent cruisers, see infra, §394.
As to pcnnitting buch cruisers to arm and proceed to sea, see ivj'ra, ^ 393,
39(5, :m.

A sbip-of-war, wheu in a foreign friendly port, is ordinarily exempt
from tbe jurisdiction of such port.

Mr. Eiuulolpb, Sec. of State, to Mr. Hainniond, July 23, 1794. MSS. Notes, For.

Leg.
Mr. Frelingbuysen, Sec. of State, to Mr. Romero, May 25, 1882. MSS. Notes,

Mex.

But the ofticers of a vessel-of-war belonging to a friendly foreign
nation cannot set up extra territorality wheu unoflQcially on shore in a
port in whose harbor their vessel is temporarily moored.

Mr. Randolph, Sec. of State, to Mr. Hammond, July '23, 1794. MSS. For. Leg.
Notes.

" The President highly disaj)proves that a public vessel-of-war, belong-
ing to a foreign nation, should be searched by officers of the customs
upon a suspicion of illicit commerce. The propriety of representing
such a suspicion to the consul of that nation, or the commander of the
vessel, will not be controverted, this being a course respectful and cus-
tomary. A general instruction will be therefore given to pursue this
cour.se, with the view that if it should be inefiectual the Government
of the United States may adopt those measures which the necessity of
the case and iheir rights may require."

Mr. Randolph, Sec. of State, to Mr. Fauchet, Nov. 17, 1794, cited in letter of
same to same, .June 13, 179."). MSS. Notes, For. Leg.

A foreign ship-of-war admitted by courtesy into a port held by mili-
tary occupation, in time of war, by forces of the United States, is sub-
ject, so far as concerns the right to carry off persons from such port, to
the military orders governing the port.

Mr. Seward, Sec. of State, to Mr. Tassara, July 2, 1863. MSS. Notes, Spain;
Dip.Oorr., 1863.

" Having submitted the question thus raised to the President of the
Uniteil States, T have now to express to you my regret at the conclu-
sion at which the Spanish Government has arrived. It seems to me,
in effect, to set uj), although unconsciously, a claim that a Spanish
ship-ofwar, admitted by courtesy into a place actually held in military
occu])ation by the forces of this Government, may disregard existing
military oiders, which are issued with a view to the military situation
of that place. This seems, in effect, nothing less than a cliiim of Span-
i.sh sovereignty over Ameiican citizens on board a Spanish ship, not
merely within the civil jurisdiction, but even within the military lines
136

CHAP. II.J LAW OF PORT. [§ 36.

of tlie United States in their own territories. The claim thus uiuler-
stood cauuot be conceded. I am, therefore, to inform you that the
Government adheres to its former declaration that no ship ofwar, of
whatever nation, will be expected to carry into or out from any port
of the United States, which is either occupied by their forces or is in
possession of the insurgents, any person who does not actually be-
long to the civil, military, or naval service of the country whose flag
that vessel carries, and especially that such ships of- war shall not,
without express leave of the military authorities, carry into or out of
such ports any citizen of the United States. It can be only on an ex-
pected compliance with these terms that any Ibreign ship of-war can
enter ports of the classes I have designated during the continuance
of the present civil war."

Ibid.

If there be no prohibition, the ports of a friendly nation are consid-
ered as open to the public ships of all powers with whom it is at
I)eace; and those vessels are supposed to enter such ports and remain
in them under the protection of the Government of the place. Whether
the public ships-of-war of one nation enter the ports of another friendly
nation under the license implied by the absence of any prohibition, or
under an express stipulation by treaty, they are equally exempt from
the local jurisdiction.

The Excliange v. McFaddou, 7 Crauch, 116, 145. (Seo ThePizarror. Matthias,
ION. y. Leg. 01) , 97.)

The exemption of ibreign public ships from the jurisdiction of the
courts of the United States is not founded upon any notion that a
foreign sovereign has an absolute right, in virtue of his sovereignty, to
an exem])tion of his property from the local jurisdiction of another sov-
ereign when it comes Avithin his territory. It stands upon principles
of public comity and convenience, and arises from the presumed con-
sent or license of nations, that foreign public ships coming into their
ports and demeaning themselves according to law and in a friendly
manner shall be exempt from the local jurisdiction. But as such
consent and license is imi)lied only from the general usage of nations,
it may be withdrawn upon notice at any time without just oflense,
and, if afterwards, such public shii)s come into our ports they are
amenable to our laws in the same manner as other vessels.
The Sautissima Triuidad, 7 Wheaton, 283; aff'd., 1 Brock., 478.

Whatever may be the exemption of a public ship herself, nnd of her
armament and munitions of war, from the jurisdiction of the courts of
the United States, any prize i>roperty which she brings into our iiorts
is liable to such jurisdiction for the purpose of examination and inquiry,
and, if a proper case is made out, for restitution. And if goods are
landed from the public ship in our ports, by the express permission of
our Government, this does not vary the case, since such permit in-

137

^S 3(J.] SOVEREIGNTY OVER WATER. [CHAP. II.

volves no i»le(lj;e that, if illei»ally captured, tbo goods shall be exempted
lioui the ordinary operation of the laws of the United States.

TlieSaiitissiiriii Tiiiiidiul, 7 Wheat., )>S:% :552.

The cases of the Cassias, ;i Dallas, 121, and the Invincible, 1 Wheatou,
238, decide that neither a public vessel of another nation, nor its ofiflcei s,
are liable to answer in our courts for a capture on the high seas, but
do not touch the (piestion of jurisdiction over her prizes lying in our
])orts, which extends to libels in rem for restitution of such prizes made
in ^•iolation of our neutrality.

The Santissiiiia 'I'liuidad, 7 Wheat., 283.

A writ of habeas corpus may be awarded to bring up an American
subject unlawfully detained on board a foreign ship-of-war, the com-
niaiKk'r being amenable to the usual jurisdiction of the state where he
happens to be, and not entitled to claim the extraterritoriality which
is annexed to a foreign minister and to his domicil.
I Op., 47, Bra.lford, 1794.

Criminal and civil process may be served under treaty upon a person
on board a British man-of-war lying within our territory.

1 Oi). 87, Lee, 1799.

Foreign armed vessels, adopting the character of merchant ships by
carrying merchandise, render themselves subject to the revenue laws.
1 Op., 337, Wirr, 1820.

A foreign (British) ship-of-war, or any prize of hers in command of a
public officer, possesses, in the ports of the United States, the rights of
extraterritoriality, and is not subject to the local jurisdiction.
7 Op., 122, Cuf^hiug, 1855.

Hence a prisoner of war on board such a foreign ship-of war, or of
her prize, cannot be released by habeas corpus issuing from courts of
the United States or of a particular State. " So long as they (the pris-
oners) remained on board that ship they were in the territory and juris-
diction of their sovereign. There the n^itral has no right to meddle
with them."

But if such prisoner of war be taken on shore, he becomes subject to
the local jurisdiction, or not, according as it may be agreed between
the i)oliti('al authorities of the belligerent and neutral power.
ih.

[Mr. Cushinjx does not notice in the above case the opiuious of Mr. Bradford
and Mr. Lee in 1 Op., 47, e7, above cited. It is to be observed that Mr. Lee
bases his opinion on the twenty-third article of the treaty of Loudon, "that
the ships-of-war of each of the contracting parties shall at all times be hos-
pitably received in the ports of the other; their officers and creivs paying due
respect to the laws and Government of the country.]
138

€HAP. II.] LAW OF PORT. • [§36.

Ships of- war eujoy the full rights of extraterritoriality in foreign ports
and territorial waters.

8 Op., 73, Gushing, 1856.

As to reciprocity in allowing foreign ships-of-war in United States ports to re-
ceive goods free of duty, see Mr. Cadwalader, Asst. Sec. of State, to Mr.
Washburn, Oct. 14, 1876. MSS. Inst., France.

As to hospitalities to ships of war, see Brit, and For. St. Papers, 1865-6, vol. 56.

The sovereignty of the flag of foreign ships-of-war is not only con-
ceded in Euglaud, where the rule in respect to merchant ships is some-
times contested, but it is held to apply to port as well as at sea. The
rule, says Judge Story, in an opinion adopted by Sir li. Phillimore (I, 477),
is not founded on any notion that a foreign sovereign has an absolute
right, in virtue of his sovereignty, to an exemption of his i)roperty
Iroin the local jurisdiction of another sovereign when it comes within
J lis territory, lor that would be to give a sovereign power beyond the
limits of his own empire. But it stands upon princii)les of public
comity and convenience, and arises from the presumed consent or
license oi nations, that foreign public ships coming into home ports
and demeaning themselves according to law, and in a friendly manner,
shall be exempt from the local jurisdiction. "But as such cousent and
license are implied only from the general usage of nations they may
be withdrawn upon notice at any time without just oflense ; and if after-
■wards such public ships come into our ports, they are amenable to our
laws in the same nnmner as are other vessels." But, unless withdrawn,
it is ])resumed to be conceded. And it is now settled that foreign iships-
of-war and boats, the particular iiroi)erty of a foreign sovereign, are
not liable to process, though the ships or boats be at the time of the
i'ause of action on the territorial waters of the state of process (San-
tissima Trinidad, ut sup.). A state, it should be added, is interuittion-
ally entitled to exclude from its ports the ships-of-war of other nations
or to limit their stay; and this right has been exercised by neutral
states as to belligerent cruisers. When such a foreign ship enters a
Irieudly port, it is exempted ordinarily from the control of the ]>ort
])olice. if there be misconduct on board such ship when in port it
may be required to leave the port without breach of international
courtesy.

See authorities cited in Whart. Com. Am. Law, § 190; Twiss, i, § 158; Blunt-

schli, § 321.
As to asylum given to belligerent ships, see infra, § 394.
As to refusing admission into territorial waters of foreign public ships, see infra

U 3156, 331.

Ill the preamble of the judgment of 1872 by the Geneva Tribunal is
the following :

''And whereas the i^rivilege of extraterritoriality accorded to vessels of
war has been admitted into the law of nations, not as an absolute right,
but solely as a ])roceeding founded ou the princii)le of courtesy and
mutual deference between different nations, and therefore can never be
appealed to for the protection of acts done in violation of neutrality : "
4 Papers relating to Treaty of Washington. (See, as to award, infra, § 402a.)

'•The tribunal of arbitration at Geneva held that 'the privilege of
exf^aterritoriality, accorded to vessels of war, had been admitted into the

139

§37.] SOVEREIGNTY OVER WATER [CHAP. II..

liiw ol iiaiioiis. not as an absolute right, but solely as a proceeding
loiiiMk'd oM the principle of courtesy and mutual deference between.
diftiMtMit nations.' Tliis is in accordance with the settled jmictice of
tlie ITiiitf'd States. Attorney-General Lee, in the early days of the Ke-
])iiblic, i^ave his opinion that it is lawful to serve either civil or criminal
l)r(>cess upon a person on board a British man-of-war lying within our
territory."

Mr. J. C. B. Davis. Notes, &c.

But this i)retension was resisted and resented by the United States
when the (3hesa])eake was "visited" and searched by the Leopard iu
180'J (see infra, §§ 'Slob, 331), and was withdrawn by the British Gov-
ernment.

See criticism in Creasy's Int. Law, 177, ff.

In the Constitution (40 L. T., 1^. S., 210) it appeared that the Constitu-
tion, a United States vessel of war, while on a voyage from Havre to New
York, having on board, among other things, goods from the Paris Expo-
sition, ran ashore on the Welsh coast, when salvage services were ren-
dered to her. Sir E. Phillimore refused to allow a warrant to issue for
her arrest, or for the arrest of the goods on board of her, at the salvor's
suit. The claim was settled by voluntary payment by the United States,
who resisted the issue of the warrant on ground of principle. 'It is
clear,' said Sir li. Phillimore, 'upon all the authorities which are to be
found in the case of the Charkeih (L. R., 4 Ad. & E.,39), that there is
no doubt as to the general proposition that ships-of-war belonging to
another nation with whom this Government is at peace are exempt from
the civil jurisdiction of the country.' And it was further held that an
unarmed vessel belonging to a foreign sovereign, employed by him on a
national service, is not subject to arrest."

The Parlernent Beige, L. R., 5 P. D., 97, citin}^ also Briggs v. Light-Boats, 11
Allen, 157. (See, also, The Pizarro, 10 N. Y. Leg. Ob., 97.)

XIV. OPPRESSIVE PORT EXACTIONS.
§ 37.

"You will state that this Government does not question the right of
every nation to jirescribe the conditions on which the vessels of other
nations may be admitted into her ports. That, nevertheless, those con-
ditions ought not to conflict with the received usages which regulate
the commercial intercourse between civilized nations. That those
usages are well known and long established, and no nation can disre-
gard them without giving ju.st cause ofcomi)laint to all other nations
whose interests would be ati'ected by their violation.

" That the circumstance of an officer of a vessel having i)ublished, in
his own country, matters offensive to a foreign Government does not,
according to those usages, furnish a sufficient cause for ex(;luding such
vessel from the i)orts of the latter * * *

" That the steamers employed in transporting the mail from this coun-
try to Havana, being in the employment of Government, and placed by
140

CHAP. II.] PORT EXTORTIONS. [§ 37.

law, to a certain extent, under its control, partake, in some degree, of
the character of public vessels."

Mr. CoDrad, Acting Sec. of State, to Mr. Barringer, Oct. 28, 1852. MSS. Inat.,
Spain.

"It has become necessary again to instruct you to call the attention of
the Spanish Government to the onerous burdens to which the trade of
the United States is subjected by reason of the system of fines imposed
by the customs authorities of Cuba.

"The able manner in which you have already presented the subject
in your notes of the 16th July, 1870, and 28th of November, 1872, makes
it unnecessary for me to repeat or to dwell upon the facts of which our
«hip owners and masters complain. The printed memorandum which
is inclosed shows the present condition of the question. The remedy
which the ship-owners of the United States desire cannot be better
stated than in the language of the following extract from the memorial
which forms part of the inclosed memorandum :

" The Spanish laws require that a vessel bound for Cuban ports shall
make out manifests of cargo, the same to be certified by the Spanish
consul residing at. or nearest to, the port of loading, in which mani-
fest the captain must declare positively, and without qualification, the
several and diflerent kinds of i)ackages, their marks, the generic class
of contents, as well as the weights and values of same, and for every
instance where, on arrival in Cuba, the examination of the cargo shows
a difference between the packages and the weights, and contents of
same as actually found and the same as manifested, the vessel is fined,
while the goods escape all responsibility.

"That although the generic class of the goods is stated ou the mani-
fest, in compliance with the requirements of the Spanish laws, and said
manifests accepted and certified to by the Spanish consul, yet the
vessel is fined for not stating the specific class.

"That we are entirely dependent on shippers of cargoes for informa-
tion as to weights, values, and contents of packages shipped from
which to make out manifests, and irresponsible parties often give erro-
neous descriptions of their part of cargo, resulting in fines imposed
on the vessels, at times greatly in excess of the freight, against which
we have no redress.

"That the customs authorities at the several ports in Cuba jdace
different constructions on the laws relative to vessels, and the mani-
fests of same, and fines have been imposed in one port for stating that
for which fines were imposed in another port for omitting.

"That the caprain is only informed of any fines imposed ou his
vessel when he attemi)ts to clear her at the custom-house, whereby he
has either to pay the fines or detain the vessel indefinitely while con-
testing the same.

"That although we are willing and endeavor to comply with the said
laws regulating manifests, yet, under the conflicting instructions

141

§ 37.] SOVEREIGNTY OVER WATER [CHAP. 11.

placed on same by the differeut collectors of customs in Cuba, we find
it impossible to do so,or to avoid fines.

" In cases where fines are imposed, an appeal to the superior author-
ities at Uavaua is permitted on i)ayment, under x^rotest, of said fines;
but unless the amount of such fine is excessive the delay occasioned
by the detention of the vessel would exceed in most cases the amount
of such fine even if recovered.

" AVe would respectfully repi'esent to the Department that as the
vessel, throujjfh her agents, is entirely dependent on the shippers of
cargo for information necessary to describe on the manifest the con-
tents and weights of packages shipped, the propriety of imposing fines
on the goofh erroneously described on manifest, instead of on the vessel,
as then the shipper would have a sure remedy' against the vessel iu
case of error on her part, or on the part of her agents, in making out
manifests, while under existing regulations it is in most cases almost,
if not impossible, for the vessel to recover the amount of fines from
the shipper.

"These objections and suggestions appear to be reasonable, moder-
ate, and just. It has therefore been determined both to instruct yoti
to use your best endeavors to secure the modifications and changes
which the ship-owners desire, and also to endeavor to secure a similar
and, as far as possible, identical action on the part of the British, Ger-
man, and Swedish and Norwegian Governments, whose commerce also
is afiected by these rules and regulations.

" You will therefore confer with the British, German, and Swedish
and Norwegian ministers at Madrid, in the hope that they may receive
instructions which may enable each to frame a note to be addressed by
each seT)arately to the Spanish minister for foreign affairs on the sub-
ject, which may be simultaneous, if not identical. Should they or
either of them, under instructions from their Governments, decline to
act, you will nevertheless address a note yourself upon the subject,
and spare no reasonable efforts to induce the Spanish Government to
accede to the requests you are instructed to make."

Mr. Fish, Sec. of State, to Mr. Sickles, March 21, 1873. MSS. lust., Spain ; For.
Rel., 1873. Accompanying thi.s iustrucf iou are several valuable documeuts
relative to the questions divscnssed.

"The undersigned, Secretary of State of the United States, has the
honor to ack)iowledge the receipt of the note of Mr. Preston, envoy
extraordinary and minister plenipotentiary of Hayti, of the 16th
instant.

" It states that his Government has thought proper to transfer to its
legation in this country the discussion which has heretofore been carried
on with the legation of the United States at Port au Prince, relative to
the act of the Haytian Congress of the 23d of August, 1877, authoriz-
ing certain charges by the consuls of that Eepublic abroad on exporta-
142

CHAP. 11. J PORT EXTORTIONS. [<5 37.

tious from foreign coautries to Hayti. With a view to show that those
charges are not incompatible with the treaty between the United States
and that Kepublic, Mr. Preston quotes several articles of that instru-
ment. These, however, are general in their terras and appear to have
no special reference to the question at issue.

"According to the preamble, one of the main objects of tbe treaty
was to place the commercial relations between the two countries upon
the most liberal basis.

" The act of the Haytian legislature referred to cannot be regarded as
in conformity" with that stipulation. It authorizes the consuls of that
Eepublic to charge exorbitant fees on exportations from the United
States ; among others, 1 per cent, on the value of cargo of the vessel.
This, besides being illiberal in its character, is tantamount to an export
duty, acquiescence in which by this Government would be a concession
to that of Hayti of an authority in ports of the United States which
has not been conferred on this Government by the Constitution.

" There is, however, a clause in the thirteenth article of the treaty,
one of those cited by Mr. Preston, which seems to have a direct ai)pli-
cation to the point in dispute.

" If the Haytian consular charges in the United States are so con-
siderable as virtually to be an export tax, this would in eifect contra-
vene the stipulation which declares that no higher duties or charges
shall be imposed in the United States on the exportation of any article
to Hayti than such as shall be payable on the exportation of the like
article to any foreign country. This clause is unconditional, and not
only forbids this Government from levying any such tax, but also a
consul of Hayti at a port of the United States.

"The preamble to the Haytian law in question expressly acknowl-
edges that one of its objects was to benefit the treasury of that Eepublic.
Several of the other charges which it authorizes appear to be excessive.
Such charges may not be uniform as prescribed by the laws of different
countries. It is believed, however, that no other than Hayti has
authorized them to sucli an extravagant amount as that provided for
by the law referred to, or has required an export tax on merchandise.
This Department had hoped that the remonstrances on the subject
which had been addressed to that Government through the United
States legation in Hayti would ere this have led to a repeal or modifi-
cation of that statute. This hope has, however, been disappointed,
but as the charges complained of are believed to work a serious dis-
couragement to trade, it is hoped that, as the Haytian Government is
understood to be adverse to a policy leading to such a result, it will no
longer delay removing the cause of the grievance.

"It is believed that Mr. Preston is mistaken in saying that the United
States is the only Government which has complained of the effect of the
statute referred to. According to reports from the legation of this

143

^S o7.] SOVEREIGNTY OVER WATER. [CHAP. 11.

coiuilr.v ill llayti, ro|)reseutatives of otber Governments have also
pointeilly complained to tbe same effect."

Mr. Evarts, S<'c. of State, to Mr. Preston, Jan. 22, 1879; MSS. Notes Hayti;
For Rel., 1871). (Seo same to same, April 19, 1879, id.; June 13, 1879, id.)

" IJereriing- to your note of the 9th of JMay last, and my acknowl-
edjiiiieiit thereof on the 13th of the same month, in relation to theHay-
tiaii tariff' of consular fees under the decree of August 23, 1877, and to
tlie i)r()tests of the representatives at Port au Prince of the United .States,
Great liritaiii, Germany, and France, and the reply of the Haytian Gov-
orninent thereto, I have now the honor to communicate to you, in con-
formity with the desire expressed by the Marquis of Salisbury the views
of this Government in relation to that questien.

" The Government of Hayti, prior to the reply of the 6tb of March last
to the foreijxn representatives named, had seen fit on the 4th of Febru-
ary to transfer the discussion of the question to Washington, so far as
this Government was concerned, by a very full and argumentative note,
addressed to me by Mr. Stephen Preston, the Haytian minister in this
country. Although much more extended, the note of Mr. Preston in
the main merely repeats and reaflBrms the reasoning and conclusions of
the communications made to the foreign representatives by M. Etheart,
and, like thor>e, they appeared to tbis Government, as weH as to that of
Her Majesty, as appears from your note, to be altogether unsatisfactory,
and reply was so made to Mr. Preston on the 13th ultimo. In that re-
jdy the Haytian minister was informed, with respect to that portion of
his note which related to tbe authentication by the consular officers of
Hayti in tbis country of the invoices of tbe cargoes of vessels bound to
tbe ports of that country, that the charge of 1 percent, on values for that
proceeding is, after the most deliberate consideration, believed to be un-
duly exorbitant, and tantamount to an export tax, which it does not
comport with the dignity of this Government to allow to be exacted by
any foreign authority within tbe jurisdiction of the United States. It
was asserted that, even if the exaction in the form in which it is im-
posed were moderate and unobjectiouable as to amount, still, if it were
once acquiesced in this would be a bar to any objection which this Gov-
ernment might made if the (.'onsular fee were afierwiird to be much aug-
mented. The inexpediency of sul)jecting exports from this country to
Hayti to a tax of tbe kind was further illustrated by the (consideration
that, owing to tbe dangers of tbe sea and other causes, many cargoes
<lo not reach their destination.

''The Government of the United States, being by its Constitution
expressly prohibited from levying an export tax, it cannot allow any
f.)reigii jtower to exercise here, in substance or in form, a right of sov-
ereignty denied to itself. Xo denial was made of the right of the Hay-
tian Government, at its discretion, so tar as tbis may not have been lim-
ited by treaty, to impose duties on the cargoes of vessels from thiscouu-

CHAP. II.] POKT EXTOKTI02s8. [§ 37.

try arriving in Haytian ports, but it was complained most positively
that the present grievance of a consular fee of this cluinicter exacted in
our ports is, in its form, derogatory to tbe sovereignty of the United
States, and that this character wats not removed from it by the Haytian
citation of the axioms of political economy that all duties are ultimately
j)aid by the consumer. In view of all this, it was hoped tliat the Hay.
tian Government would see the expediency of changing its regulations
upon that subject without any unnecessary delay."

Mr. Eviirts, Sec. of State, to Sir E. Tliorntou, July 14, 1879. MSS. Notes. Gr.
Biit.; For. Eel., 1879.

" In Mr. Blaine's instruction to you of the 23d of November last con-
cerning the long pending and still unsettled claim of the owners of the
bark Masonic, some general observations were submitted in regard to
the arbitrary and unjust surveillance exercised towards American mer-
chant vessels in Spanish colonial ports. These suggestions of my pre-
<lecessors were made in the mutual interest of American and Spanish
commerce, and in promotion of the friendly relations which have so
long subsisted between the two nations. Since that instruction was
forwarded three other cases of less ])ecuniary magnitude, but of scarcely
less hardship, have been brought to the attention of the Department.
In regard to each of these, instructions have also been forwarded to
your legation, but as pertinent to the subject of this instruction it
seems proper to advert briefly to the facts upon which they rest.

" The American brig George W. Chase was fined $50 in November
last by the customs authorities at Sagua, the sole ground for the
fine being an omission of certain words in a manifest. The clause
of the document being " 900 bundles of hoops 40 feet long [40 hoo])s
in each bundle]," the words inclosed in brackets were inadvertently
omitted by the Spanish consul at Philadelphia, who transcribed the
document; and although the officer in question certified as to the mis-
take, the imposition of the fine was nevertheless adhered to. The sec-
ond case [brought to attention hj No. 1090 of YiceConsulGeneral
Williams] is that of the steamer Ellie Knight, which entered the port
of Havana wi-h a cargo of cattle from Mobile and Key West, on the
27th December last, having on board 60,000 feet of lumber destined for
Key West, but which was kept on board as ballast while crossing the
Gulf. As a cattle carrying boat the steamer was chargeable, under the
Spanish laws and revenue regulations governing the ports of Cuba, to
a tonnage duty of 5 cents per ton. which would have made the charge
$14.90, but, instead of this, the customs officers, on account of the 60,000
feet of lumber, assessed a duty of $l..')0 i)er ton, making the amount on
the vessel's tonnage $.'387.40, an excess of $372.50.

" Still another and more recent case was that of the steamer Santiago,
of New York, a vessel regularly engaged in the trade between New
York and the i)orts of Santiago de Cuba and Cienfuegos, on the south
S, Mis. 162— YOL. I 10 ' 145

§ 37.] SOVKEEIGNTY OVER WATER. [CHAP. II.

side of the islaud of Cuba. Under circumstances of great appari'nt
hardship, a fine of $1,900 was imposed on the vessel, and the master,
(':iptaiu Pliillii)s, was obliged to execute a bond, with sureties for the
amount, in order to secure a clearance for his vessel.

" In ea(;h of these cases instructions have been forwarded to you, and
the.v are adverted to here only as being pertinent to the general sub-
ject of this instruction.

" They are examples of many similar occurrences to American vessels
in the colonial i)orts of Spain. Hitherto the consul-general of the
United States at Havana has been able to secure an adjustment of such
cases by prosecuting the complaints to the superior authorities at that
])ort, and eflbrts looking towards the same end were made by that officer
in each of the cases referred to. He was met, however, with the an-
nouncement that under an existing ordinance, the strict observance ot
which has been reeujoined by a royal order recently promulgated in
Cuba, the local authorities can no longer deal with such questions, but
that tliey must be remitted for settlement to the Government at Madrid.
The adoption of this course of procedure b3^ Spain has very much ag-
gravated this general grievance to American commerce. Complaints
of such instances have of late become so frequent from owner§ and
masters of American vessels that the question demands the most serious
attention of this Government. The President therefore directs me to
instruct you to bring the question to the attention of His Catholic
Majesty's Government, and in doing so you will request that authority
shall be given, either to the captain-general in Cuba or to His Majesty's
minister at this capital, to consider such cases and grant redress when
necessary. The arbitrary conduct of subordinate officials in Cuba can-
not be submitted to without retaliation on Spanish vessels and com-
merce, unless there is secured a more speedy remedy than is afforded by
resort to Madrid."

Mr. Frelinghuysen, Sec. of State, to Mr. Hamliu, Feb. 15, 1882. MSS. Inst.,
Spain; For. Rel., 1882.

" Mr, James McKay, a citizen of the United States resident in Monrof
County, Florida, and who is extensively engaged in feeding and ship
l)ing cattle to Cuban markets, has recently brought to the attention of
the Depiutment a i)ractice pursued by the Spanish consul at Key West,
in regard to shipments from that port to Havana and other Cuban
ports, which results in annoyance, inconvenience, and serious losses to
himself and other American citizens. engaged in similar business.

" It appears from Mr. McKay's letter of the 22d of June last to the
Department, that the Spanish consul at Key West, in pursuance, as
that officer alleges, of instructions from his Government, exacts and
collects from Mr. McKay and other American cattle shippers 40 cents
a head on all cattle shipped by them from the State of Florida to Cuba.
This is in addition to the ordinary and usual consular fees charged and
146

CHAP. II.] PORT EXTORTIONS. [§ 37.

collected for clearing the vessel, certifying papers, and such other
charges as may properly be made by the consul in connection with such
shipments. On these same cattle, when landed on the island of Cuba,
Mr. McKay and the other shippers situated like him have to pay an
import duty of $6 per head. Of this import duty paid in Cuba, how-
ever onerous it may be, they make no complaint, recognizing the right
of the Spanish Government to impose and collect within its own terri-
torial jurisdiction such duties as it may deem proper under its own mu-
nicipal laws, provided it does not transcend the limits of treaty stipu-
lations.

"In the letter referred to, Mr. McKay transmits thirteen protests
made by him, before a notary public, in relation to as many shipments,
giving in each case the name of the vessel, the number of cattle in the
cargo, the date of shipment, and the gross amount of head-tax charged
on each shipment. Thus, on the 22d of April, 1882, on the steamship
Alabama, from Key West to Havana, 451 head of cattle, upon which he
paid to the consul in question $180.40, and so on through all the others,
varying only in the number of cattle in each cargo and the gross amount
of tax paid. A subsequent letter from McKay on the 19th ultimo in-
closes ten similar documents. These twenty-three protests represent
as many shipments made by him from Key West to Havana between
the 22d of April and the 7th of Augusi of the present year, and em-
bracing 10,967 head of cattle, upon which Mr. McKay has paid to the
Spanish consul at Key West, at 40 cents a head, $4,386.80, and when
the $6 a head paid upon their being landed at Havana ($05,802) is
added, it is seen that this one American shipper has been obliged to
pay to the Spanish Government the sum of $70,188.80 before he gets his
cattle into the Cuban market.

" It is not conceivable that the Government of Spain, a country whose
history and traditions are so intimately and so justly identified with the
growth and progress of the world's commerce, could intend this charge
of 40 cents a head as a restriction on the commerce of the United States.
The long and unbroken friendship existing between the two countries
forbid such an interpretation of the policy of His Catholic Majesty's
Government.

" The charge, nevertheless, under whatever supposed right or neces-
sity on the part of Spain it may be imposed, is in effect such a restric-
tion, and is a burden so onerous on American citizens engaged in that
rapidly increasing branch of American commerce as must in time have
the effect of excluding them from the Spanish colonial markets of Cuba.
It is a charge, moreover, upon whatever ground it may be placed, that
is in itself anomalous. N"o other Government with which the United
States hold commercial relations attempts to make or enforce any
similar tax or charge in the ports of the United States, and it is almost
superfluous to state that the consular officers of the United States are
not authorized to make any similar charges in the ports of Spain or her

147

§ 37.] SOVEREIGNTY OVER WATER. [CHAP. II.

transatlantic colonies on any goods, the produce of those countries,
destined for ports of the United States. The remedy for this evil is
with the Spanish Government. It may in its hands be made simple,
adequate, and immediate by putting an end to the i)ractice, and in the
present case reimbursing to Mr. McKay the amount he has already
]>aid, which, as shown at present, is $4,386.80.

'' The alternative left to this Government in case that of Spaiu shall
fail to give the subject prompt and just consideration, is one that is not
contempleted with satisfaction; that is, a similar charge on colonial
jiroduct of Spain shipped by Spanish subjects from the ports of their
own country to the United States. A simple statement of the present
status of the commerce between the United States and these colonies is
suiiicient to show how detrimental such a measure would be to the com-
mercial interests of the colonial subjects of His Catholic Majesty.

" In 1880 the imports of the United States were, from Cuba,
$05,423,000; all other Spanish colonial ports, $12,214,000. Exports
from United States to these same places in that year — Cuba, $11 ,000,000;
to all other colonial ports, $2,000,000. For 1881, exi>orts from Cuba,
$03,000,000; from all other Spanish colonial ports, $12,000,000. Ex-
ports from the United States to Cuba, $11,000,000."

Mr. J. DaTis, Acting Sec. of State, to Mr. Hamlin, Sept. 4, 1882. MSS. lust.,
Spain ; For. Rel., 1882. •

" Your dispatch No. 52, of the 6th of June last was duly received,
though it does not appear to have been hitherto acknowledged. It is
accompanied by a copy of the note of the minister for foreign affairs
to you of the 29th of May, in which he seeks to justify the tax. The
Department concurs in the view of the matter taken in your dispatch.
That the application of the tax to vessels clearing to colonial ports
was a mere extension of a tax, exacted since 1874, to vessels .clearing
for ports in the peninsula, seems to be an invasion of the point at
issue. Our complaint is that as our commercial intercourse with Spain
is mainly with her possessions in this hemisphere, exorbitant consular
charges on United States vessels and their cargoes bound to such
ports are virtually an export tax, which assuredly no foreign Govern-
ment can be allowed to exact in our ports, especially as such a power
has not been granted to this Government. If, however, as the minis-
ter says, it will be necessary for the legislature of Spain to correct the
evil of which we complain, it is hoped that the executive Government
of that country will exert all proper influence towards having the de-
sired change effected. This is a measure which may be deemed neces-
sary, not only for improving commercial intercourse between the two
countries, but also for strengthening the good feeling between them.
It can never be expected that the people of this country will acqui-
esce in the levy here by the agents of a foreign Government of any
charges whicli, in their amount or character, may be tantamount to ho
export tax.

X43

CHAP. II.] PORT EXTORTIONS. [§ 37.

"A controversy on a similar subject took place a few years since
between this Government and tbat of Hayti. A copy of the two prin-
cipal instructions in regard to the subject from Mr. Evarts to the
minister of the United States in that country is transmitted for your
information.

<' The Haytian Government ultimately repealed the obnoxious tax."

Mr. Frclinghuysen, Sec. of State, to Mr. Hamlin, Sept. 22, 1882. MSS. Inst.,
Spain; For. Rel.,l>-82.

" Mr. Hamlin's No. 100, of the 12th ultimo, has been received. His
course in presenting our complaint against the consular fee of 40
cents per head on cattle shipi)ed from our i)orts to the Antilles (as
set forth in Mr. Davis's No. 94) as resting on the same basis as the pre-
vious complaint concerning the exaction of a consular fee of 10 cents
per ton on invoiced cargo, conforms to the intention of the Depart-
ment; and his note of 26th of September to the Marquis de la Vega'
is approved as a forcible, and, it is hoped, conclusive exposition of our
case.

" The two classes of charge are of the same nature, and are opposed
by us as being a revenue charge levied in our ports, not for services
rendered by the consul or proportionate to such services, but as in
effect an export tax. It cannot adequately be met by saying (as has
been said in past discussion) that our consular fees for authenticating
invoices may, when these are numerous, amount to a heavy charge,
exceeding that in the case of a single moderate cargo when com])rised
in one invoice and assessed at 10 cents a ton. The service performed
by the consul is one required by law for the protection of the revenue
at the port of entry, and involves ascertainment of the bona fides and
responsibility of the exporter, and the substantial accuracy of the
stateiueiits contained in the invoice and sworn declaration therewith.
This service is uniform in all cases, and neither the consul's labor nor
his responsibility are measurable by the weight of the merchandise in-
voiced or the number of pieces of which it is composed. It would ap-
parently be as tenable for Spanish legislation to assess an ad valorem
tax for the verification of an invoice. No basis of consular fees which
depends on the weight, size, amount, or value of the merchandise, and
disregards the specific clerical or administrative act done, can be in
principle anything short of an export tax levied in the jurisdiction of
another state."

Mr. Frelinghuysen, Sec. of State, to Mr. Reed, Nov. 10, 1882. MSS. Inst.,
Spain; For. Rel., 1882.

" I have alluded in my previous messages to the injurious and vexa-
tious restrictions suffered by our trade in the Spanish West Indies.
Brazil, whose natural outlet for its great national staple, coffee, is in
and through the United States, imposes a heavy export duty upon that
product. Our petroleum exports are hampered in Turkey and in other

149

\ ;;7.] SOVEREIGNTY OVER WATER. [vUAP. JI.

Eastern ports h.y ifstiictious as to storage and by onerous taxation.
For these mischiefs adequate relief is not always afforded by reci-
procity treaties like that with Hawaii or that lately negotiated with
Mexico and now awaiting the action of the Senate. Is it not advisable
to provide some measure of equitable retaliation in our relations with
Governments which discriminate against our own?' If, for example,
the Executive were empowered to apply to Spanish vessels and cargoes
from Cuba and Puerto Kico the same rules of treatment and scale of
l)enalties for technical faults which are applied to our vessels and car-
goes in the Antilles, a resort to that course might not be barren of good
results."

President Arthur, tliird aimnal message, 1883.

"You have yourself already made known to the President several very
convincing reasons why the practice in Venezuela of demanding that
the custody of ships' papers while in port be confided to the Venezuelan
officers is not in consonance with the practice of nations or with com-
mercial interests. Your grounds were good, as far as they went, but
the princii)les underlying the question are broader, and involve the doc-
trine of reciprocity under treaty and international maritime laws.

" In the first place, it is proper that the President should be disabused
of any impression he may have formed that the matter is brought up as
an innovation. It has for more than fifty years been the occasion of
discussion and remonstrance with various nations of Spanish America;
and if it be now revived in connection with Venezuela, it is because it
seems necessarj^ to the best interests of both countries that an anom-
alous practice should not exist between them in this respect.

'' The discussion with Colombia is in i)oint. In 187G a general move-
njent of the foreign representatives at Bogota was made to secure the
abrogation of a law which required the delivery of the papers of foreign
vessels to the local port officers. An arrangement then concluded dip-
lomatically set the matter at rest by recognizing the right of the consul
of the ship's nationality to have the custody of the ships' papers of their
national vessels, and the law has since been repealed.

"I transmit, herewith, for your information, copies of two dispatches
from ;Mr. Dichman, then our minister at Bogota, in which the merits of
the demand are forcibly presented. Although the circumstances made
the argument somewhat special, as applying to a specific law, and to
the peculiar siafus of Colon and Panama as free ports, you will find in
these dispatches ample material for fortifying your representations to
the Venezuelan Government in the premises. You may, also, profitably
consult the remaining corresp nulence on the subject, found in the vol-
umes of foreign relations for 1875, 1879, and 1880, which are, or should
be, in the library of your legation.

•'It may be convenient to note herein, briefly, a few points to which
prominence should be given.
150

CHAP. II.J PORT EXTORTIONS. [§ 37

"In the first place, the existing rule in Venezuela is deemed to be in
contravention of the spirit of perfect equality and reciprocity of com-
merce and navigation between the two countries, as stipulated in the
abrogated treaty of 1830, and as pervading the existing treaty of 1860.
The law of the United States, following the usage of most civilized
countries, provides that the custody of the papers of foreign ships shall
rest with the consuls of their nations, aiid this because such custody is
deemed essential to that consular control over national vessels which
is stipulated in all our treaties. It cannot be expected that the United
States will unreservedly yield to the authorities of a foreign state a
measure of control over our vessels in their ports which is not permitted
by our own law to be exercised by our own officers in our own ports, over
foreign vessels, except as a retaliatory measure in the absence of reci-
l)rocity. In this connection it may be weil for you to examine as to
the provisions of Venezuelan law touching the custody of the papers of
Venezuelan vessels in foreign ports. I make this suggestion because
in the discussion of this question with Colombia it was found that the
Colombian law was strangely inconsistent in requiring Colombian con.
suls abroad to take charge of the papers of vessels of their nation, while
denying a reciprocal practice to foreign consuls in Colombia. If a like
law should be found on the Venezuelan statute books, no stronger argu-
ment in our favor could be devised.

"You should also, in this relation, call attention to the twenty-sixth
article of the treaty of 1860, and ask how it is expected that an Ameri-
can consul can exhibit the register and crew-roll of an American vessel
in proceedings for the arrest of deserters, if at no time he is permitted
to have possession of those papers.

'' In the second place, apart from considerations of reciprocity founded
on treaty, the sacredness of the principles of reciprocity as an enduring
basis of international intercourse under the law of nations may be for,
cibly invoked to sustain our position. A vessel, under a civilized flag-
on the high seas or in a foreign ijort, possesses a national life of which
its papers are the strongest evidence. They are to all intents a part of
the vessel itself. To assume that by the act of entering a friendly port,
a vessel is to be stripi^ed of that which is in a large measure essential to
the proof of its nationality, and to await the pleasure of a local foreign
officer before such part of its life can be restored to it, is inconsistent
with international principles and usage. Hence, we find that the cus-
tom of nations (with but few exceptions in the Spanish-American ports
of South America) recognizes the consul of the vessel's nationality as
the sole guardian of all national rights appertaining thereto. The e.x-
ceptions to which I refer (and which are happily growing fewer as the
principles of international intercourse are better understood) rest on no
broad principle of comity ; they violate comity, on the contrary, by assert-
ing a painful spirit of distrust. It is, as Mr. Dichman aptly expresses
it in a dispatch of September 4, 1879 TForeign Relations, 1880, page 313),

151

^<; T)?.] gOVEREiONTY OVeR WATER. [cHAP. It.

iiiiicli as I lioiij^li it were regarded l)y the local autlioi itie.s as a more effect-
ive pledge to [prevent a ship's leaving a port to have material posses-
sion of her register ' than if the rudder had been unshipped.' Tlie form
in which this distrust is expressed, moreover, seems to evidence a mis-
apprehension as to the nature and value of a ship's register. As I have
said altove, the regi.ster is the evidence of the ship's nationality^, and as
such, with the shij) itself, are properly within the continuous jurisdic-
tion of the vessel's nation, and, therefore, in a foreign port, within the
jurisdiction of the consul of that nation.

" In the next place, a conclusive reason for the custody of a ship's
papers by the consul of her nation is found in the necessity of prevent-
ing frauds against individuals in connection with marine survey, repairs,
bottomry bonds, the right of absent owners, &c., and protection of the
rights of seamen. It is for these jmrposes that the legislation of nations
provides that the register of a vessel while in port shall pass out of the
(control of her commander and into the custody of the consul. It is not
at all necessary that these diversified rights should be subservient to
the local police surveillance while in a foreign jiort, and yet the rule
existing in Venezuela so subordinates them. Moreover, the exercise of
these several rights over a vessel for whfch the laws of her nation make
abundant ])rovisioii is rendered almost impossible by the passage of the
]»apers out of the control of the nation to which the vessel belongs.

"Finally, in your conversation with General Guzman Blanco, you
have set forth the considerations of convenience which should have
weight in determining the question. The loss of important ship's papers
while in foreign custody has been only too (iommon an occurrence in
the countries where this obnoxious regulation obtains. The corre-
spondence with Colombia shows that this was admitted as a powerful
objection to the i)ractice, and you can doubtless adduce examples
occurring in Venezuela to strengthen your point. I must compliment
you, too, on your aptness in meeting General Guzman Blanco's objec-
tion that if any feeling of distrust were shown in this matter, it lay in
an endeavor to take from the local oflicers the custody of a foreign ves-
sel's ])a])ers. We do not seek to take from Venezuela a recognized
rigiit liecause we distrust its exercise; we simply wish to retain for our
own consuls a i ight which we deem pertains to them as the representa-
tives of our national sovereignty, and one which is claimed and recog-
nized as just among maritime nations.

" I infer from the request of General Guzman Blanco that he is not
tenacious of the point, but rather asks for so conclusive a statement of
our position as would warrant him in bringing the matter to the con-
sideration of the Venezuelan Congress, with a view to asking such mod-
ification of existing law as will put Venezuelan legislation in this re-
spect in harmony with the legislation and usage of maritime countries
throughout the world. You will, therefore, in presenting to him a suc-
cinct memorandum founded on this dispatch, set the question forth on
152

CHAP. II.] Port fixToRfioN«. [§ 37.

its uierits, a« uiuiiug' to I'ucilitate a needed reloiui rather than as ag-
gressively combatting an assumed intent to adhere to an obnoxious
system."

Mr. Froliuglauyseu, Sec. of State, to Mr. Baker, Nov. 29, 1882. MSS. In8t.,Veuez.;
For. Rel., 1882.

" In continuance of correspondence heretofore touching the export
tax of 40 cents per capita levied by the consuls of Spain in the United
States upon shipments of cattle for Cuba and Porto Eico, I inclose
herewith copy of a letter from the Secretary of the Treasury, showing
that between December 2, 1881, and October 13, 1882, there have been
collected by the Spanish vice-consul at Key West fees to the amount of
$9,260 on 23,150 head of cattle exported to various Cuban ports.

" It is to be noted that the Secretary of the Treasury describes this
tax as collected 'for affixing the vice-consul's signature to the manifests
of the exporting vessels.'

" It is possible that there may be some inexactness in this state-
ment. Article 48 of the Spanish consular tariff fixes this fee in connec-
tion with the fa ctur as (invoices) of the shippers, which are to be pre-
sented to the consul and by him compared with the manifest and with
copies of the conscirnientos (bills of lading) given by the master of the
vessel, to verify their correctness. Even in this light the transaction
is open to the gravest objections as a virtual export tax ; but if the fee
is charged for simple legalization of the manifest, in addition to the fee
separately prescribed for such legalization, it is not only irrational but
intolerable.

" Tour late dispatches indicate a disposition on the i)art of his excel-
lency the Marquis de la Vega de Armijo to examine the question in the
light of equity and international right and comity. It is hoped that a
favorable decision in this regard is not far distant ; for, in the absence
of a recognition by Spain of the justice of our contention, this Govern-
ment will be reluctantly forced to consider measures whereby a retalia-
tory charge may be imposed on the Spanish shipments to the United
States."

Mr. Freliughuysen, Sec. of State, to Mr. Reed, Jau. 12, 1883. MSS. Inst., Spain ;
For. Rel., 1882.

"The frequent recurrence of these arbitrary seizures of American
vessels by the Mexican customs officers in the Gulf and Pacific ports
of that Republic is becoming a matter of serious anxiety to this Gov-
ernment in view of the possible effect such proceedings maj' ultimately
have on the commerce of both nations. The similarity of institutions,
the close neighborhood, and the community of interests of the two
great North American Republics, no less than the permanent and
abiding friendship that exists between both Governments, renders it
most desirable that every obstacle and impediment to the growth and
progress of this commerce, which this Government, in common with that

163

^\ 37.T s()M:TM:Tr!x'rv over water. [chap. ll.

of iMcxic'o, is ;i( tlu' inoim'nt so earnestly enjfaged in fostering,', should
b(> as far as i)racticable removed. Jii most iustauces these arbitrary
and irrejjular proceedings are directed against small vessels, and often
in their results involve losses far beyond the pecuniary value of the
vessel. The masters are driven to the courts for redress, often by ap-
l)eal to the Supreme Court, at great expense; and the instances are
lew, if, indeed, any can be found, where the courts have sustained the
action of the customs officers. In bringing the present claim to the at-
tention of the minister for foreign affairs, which you will do with as
little delay as convenient, you will also submit to the minister, for the
consideration of the Government, these general suggestions which I
have felt it my duty to offer."

Mr. Frelinglmysen, Sec. of State, to Mr. Morgan, Jan. 31, 1883. MSS. lust.,
Mexico.

"Your dispatch No. 562, of the 6th instant, relating to the case
of the Adriana at La Paz, has been received and has had careful at-
tention.

"As your dispatch shows you to have been fully informed of the
facts upon the date of writing, there is no present need of herein re-
citing the case.

" Your conclusion accords with that of this Department, that the
case, on the admitted statements, presents certain grave features.

" 1. The refusal of the Mexican authorities to allow Captain Caleb
to have access to the consul when arrested, or when called upon to
plead.

"2. Their action in requiring Captain Caleb to sign certain declara-
tions while incommnnicacio and without knowledge of their purport,
t'specially as it appears that these so-called declarations may be relied
upon to establish the Mexican claim that (Captain Caleb admits a viola-
tion of the criminal law of Mexico. That Captain Caleb signed the
papers in question under bodily fear or constraint is not yet fully
established. If it were, it would lend an exceptional gravity to the
case.

"3. The refusal of the collector to permit the consul to visit the
vessel.

" It is of course impossible to judge fully of the case until the text
of the so-called declarations of Captain Caleb is known. It may be
assumed, however, from the character of the sworn declarations made
by him and his officers before Consul Viosca that it could not have
l)een his intelligent or voluntary intention to put his name to a con-
fession that he was willfully violating the laws of Mexico in regard to
smuggling. • • *

" If you have not already done so, you will now address Senor
Mariscal, asking an examination, and requesting copies of the declara-
tions signed by Captain Caleb. You will intimate to the minister that
154

CHAP. II.'J ^ PORT EXTORTTOrS [§ 37.

the iiianner iii which Captain Caleb alleges he \va,s coiisiiaiiied to sign
papers of the contents of which lie was ignorant, and while deprived
of the assistance of the consul for his intelligent protection against
Ruy misunderstanding on his part, is regarded as an irregularity which,
in the judgment of this Government, will deprive those declarations
of any moral weight if they be trusted to sustain the charge of smug-
gling brought against the captain. And you will further intimate
that the whole course of the proceedings appears to be so inconsistent
with the principles recognized in the intercourse of maritime states
that persistence in the prosecution of Cai)tain Caleb on those i)remises
could not fail to call forth the most earnest remonstrance of this
Government.

"It is not the desire or purpose of this Government to screen any of
its citizens who may have willfully violated foreign law. But it is its
plain duty to endeavor by every legitimate means to secure for its cit-
izens under accusation of wrongdoing such justice and impartiality
of treatment and such safeguards for their defense as shall entitle the
judgment reached to the respect which judicial proceedings should
everywhere command.

" If the rules of international justice shall appear to have been in
any way infringed, it is the undeniable right and obligation of this
Government to interpose its diplomatic offices to insure a fair trial.

"To so practical a jurist as yourself these brief indications will suf-
fice for the present conduct of this case."

Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, Feb. 20, 1885. MSS. Inst.,
Mex. ; For. Eel., 1883.

"Mr. Eeed's No. 221, of the 28th ultimo, has been received, and the
reply of the Spanish Government therewith transmitted, in relation to
the Spanish consular fee, has been considered.

"I must express my disappointment that the matter, after so labori-
ous a correspondence, during which the views of this Government
have been most clearly set forth and consideration thereof promised by
Spain, should now stand in the very unsatisfactory condition to which
it is brought by the note of the Marquis de la Vega de Armijo of the
20th May.

"The files of your legation contaiiusuch precise instructions on the
points in dispute that I need do no more than refer you to the records
for a full view of our position in the controversy. Briefly, however,
we claimed that the fee imposed represented no clerical act of the con-
sul and afibrded no guarantee to the home Government that the in-
voices are themselves correct, or that they correspond with the mani-
fest, and therefore that the charge of 10 cents per ton or 40 cents per
head of cattle, when levied by the consul, amounted simply to an ex-
port tonnage or per capita tax levied by Spain within the territory of
a friendly state. His excellency the Marquis de la Vega apparently

155

^^ r>7.] sovKRr:TaNTY over watkr. [chap. ir.

;i(Ii:iits ilu' jiusiicc ol' the second tjta^e ol' tlii« aij^Liiuent, lur be pro-
posis to j;et rid of the questiou, so far as the ])ractical levying of an
ex|)ort tax in foreign eonn'.'ies is concerned, by making the tax col-
lectible within Spanish jurisdiction.

"This i)ropositiou is one which can only be regarded with astonish-
ment. Either the tax is a consular one, representing a fee for a service
perloniied by a consular officer and ai)plicable to the maintenance of
the consuhir system, or it is nothing more than a revenue tax levied
on ex])orts from foreign ])orts for the benefit of the Spanish treasury.
We have claimed, with strong support of argument, as we think, that
the charge is not properly a consular oue, but in its nature and mode
of payment, a revenue tax. The reply of the Spanish Government
makes the charge in fact as well as in principle the very revenue tax
we claimed it to be and proposes to direct its collection in Spain. If
the charge is in principle a proper consular charge, it is a proper one
to be collected by the consuls themselves. If not a proper one to be
collected by the (ionsuls on their own behalf, propriety is not to be
(•oiiiinuni(!ated to it by trusting the goods, so to speak, for the amount
of the tax, until they come within Spanish jurisdiction.

"My argument assumes that the charge, even if to be collected in
Sjjanish jurisdiction, remains, in the judgment of the Spanish Gov-
ernment, a consular charge, and that the assumed right to collect it
arises out of certain transactions to which the exx)orters, on the oue
hiind, and the Spanish consul in the United States on the other, are
respectively parties. In such a case this Government is unable to see
that a change in the mere place of payment would change the nature
of the fact in which the alleged obligation to pay originates. The ob-
jectionable tax would remain as before, in essence, an export tax levied
m the United States, although its material collection may be performed
in a Spanish port.

"There is but one way in which the proposal to collect 10 cents per
ton of cargo from the vessels of the United States in Spanish ports
could be regarded as defensible under international law, and that is by
abandoning altogether the sophistical contention that it is a consular
fee, and collecting it as a distinct im])ort tax, levied in Spanish ports,
in addition to customs and other import dues prescribed by existing
law. If so levied and collected* on all foreign cargoes brought within
Spanish jurisdiction, without distinction of flag, this Government
could not controvert the perfect right of Spain to adopt such a meas-
ure: but it could not look with equanimity on any partial measure,
the practical result of which would be the imposition of a discriminat-
ing <luty of 10 cents per ton against tlie cargoes of vessels going from
the United States to ports of Spain. Tlie answer of the Marquis de la
Vega is understood to profwse the eslablishment of such a de facto dis-
crimination. He says that the obnoxious tax, instead of being col-
156

illAP. 11.] PORT EXTORTIONS. [§ 37.

lected at the Spanish consulates in the United States, will be exacted
by the collectors of customs at the port of destination. It does not
appear that the modified form of collection is to apply to importations
into Spain from n,uy other country than the United States.

"It seems necessary, even after all that has been heretofore said, to
direct you to make clear to his excellency the Marquis de hi Vega the
difl'erence between our consular fee for the verification of an invoice
and the Spanish consular tax on the tonnage of the vessel's cargo.

"The act of a United States consul in a foreign country, with re-
spect to an invoice presented to him, is a distinct and responsible
service destined to protect bona fide shippers and the revenue alike
from frauds by undervaluation and otherwise.

"The validity of the transaction is scrutinized at every step. The
exporter must be known to the consul, he must appear before him and
;aake oath that the descriptions and valuations of the goods are cor-
rect, and the consul must examine the prices given, and assure himself
that the goods are honestly valued. The consul must, in certain cases,
procure and forward to his own Government samples of his invoiced
goods. The invoice is executed under oath in triplicate, one copy be-
ing recorded in the consulate, one copy being forwarded to the collector
of customs at the port of destination, and the third being delivered to
the exporter.

" In the event of there being ground to expect fraud or undervaluation,
the consul must collect evidence as to the market value of the goods, and
forward a report by the same mail to the collector at the port of desti-
nation. When the amount of clerical labor is considered, the United
8' tates charge of $2.50 for the entire operation, irrespective of the amount
r r value of the invoiced goods, is believed to be reasonable and just.
U certainly corresponds, as a fee, to a service performed by the consul.
■XTie service being uniform, the fee is so likewise, and is paid by the per-
» m to whom the service is rendered.

" The Spanish tax is wholly difierent. It purjiorts to be for compar-
ig the invoices and bills of lading with the vessel's manifest. It is a
; istinct fee from that for authenticating the manifest, for which from
!'[)to 50 pesetas ($G to $10) is demanded. The bills of lading are sub-
witted by the captain with his manifest, and are simply compared by
ItJie consul. I am unaware what useful purpose the operation sub-
Wirves as a guarantee. If its effects were to establish under the consul's
jertificate the fact of conformity between a bill of lading and the ship's
iianifest, and so exempt the captain of the vessel from a vexatious fine
when the goods are found to differ from the manifest weight or descrip-
tion, an object might be discerned worthy of consideration. But in any
■aspect of the case the service performed by the consul is practically in-
Tariable, while the fee varies and is computed on a basis wholly discon-
nected from the consular act, and bearing no conceivable logical rela-
tion thereto. The Spanish consular fee is, in short, a pro rata tax ou

167

^^37.] SOVEREIGNTY OVER WATER. [CHAP. II.

the car-io of the vessel, aud uot a specific fee for a specific act performed
by a Spunisli oflicer.

" Kot only is the reply of the Marquis de la Vega unsatisfactory in its
general aspect, but it is even more so with respect to the particular rec-.
lainations made for the return of the excessive capitation charged on
(iattle shipped from Key West by Mr. McKay aud others. His excel-
lency admits that the tax was wrongfully collected ; that the circular of
the 18th October, 1876, sui)pressed the charge of 40 cents per capita and
substituted a tonnage tax of 10 cents, and that the unlawful collection
of the old rates, notwithstanding their formal abrogation, has only re-
cently been put a stop to.

" It does not appear to this Government a sufficient or just reparation
for a wrongful act admittedly perpetrated by the Spanish officers of the
(.onsulate at Key West since 1876 to give orders that hereafter the
wrongful tax shall not be collected. The case is conceived to be one
where no less a reparation than the return of the illegally collected ex-
cess could satisfy either the right pertaining to the United States or
the high sense of justice of Spain. It will doubtless be enough for you
to call the attention of the minister of state to this point to insure the
cheerful correction of the oversight, and a prompt offer to refund the
overcharge in question."

Mr. John Davis, Acting Sec. of State, June 23, 1883, to Mr. Foster. MSS. Inst.,
Spain; For. Eel., 1883.

Fraud, when essential to sustain a custom-house confiscation, is only
to be held to exist when plainly to be inferred from the facts.

Mr. Frelinghuysen, Sec. of State, to Mr, Foster, Feb. 25, 1884. MSS. iDst., Spain.
Mr, Bayard, Sec. of State, to Mr. Foster, July 25, 1885. MSS. Inst., Spain.

An American vessel, having been embargoed in a port of Brazil by
competent authority, was unlawfully taken away by her master, with-
out the payment of the required charges, and brought to New York.
It was advised that, as the act of the master did not violate any statute
of the United States, the request of Brazil that measures be taken
against him by this Government could not be complied with.
16 Op., 282, Devens, 1879.

Under the Constitution of the United States a statute of a State en-
acting that the masters and wardens of a port within it should be en-
titled to demand and receive, in addition to other fees, the sum of $5,
wlu'ther called on to perform any service or uot, for every vessel arriv-
ing in that port, is a tonnage tax, and is unconstitutional and void.
Steamahip Company v. Port Wardens, 6 Wallace, 31.

It has also been held that while taxes levied by a State upon vessels

<»wnfdb\ its citizens as property, and based on a valuation of the same, are

not prohibited by the Federal Constitution, yet taxes cannot be imposed

on them by the State " at so much per ton of the registered tonnage,"

158

CHAP. II.] PORT LAW : NECESSITY. [§ 38.

Sucli taxes are within the prohibition of the Conrititution that "no
State shall, without the (consent of Congress, lay any duty of tonnage."
Nor is the case varied by the fact that the vessels were not only owned
by citizens of the State, but exclusively engaged in trade between
places within the State.

State tonnage tax cases, 12 Wallace, 204.

Any duty, or tax, or burden imposed under the authority of the
States, which is in its essence a contribution claimed for the privilege
of arriving and departing from a port of the United States, and which
is assessed on a vessel according to its carrying capacity, is a tonnage
tax within the meaning of the Federal Constitution, and therefore void.

Cannon v. New Orleans, 20 Wallace, 577.

XV.— EXEMPTION FROM STRESS OF WEATHER, VIS MAJOR, OB INAD-
VERTENCE.

§ 38.

Where a coasting vessel, bound from one port to another in the United
States, is carried by mutineers into a foreign port, the lawful officers ot
such vessel are entitled to aid from the local authorities of such port in
recovering control.

Mr. Webster, Sec. of State, to.Mr. Everett, Dec. 28, 1841. MSS. Inst., Gr. Brit.
Same to same, Feb. 12, 1842. (Creole case.)

The cargo of a ship driven by stress of weather, or carried by mutiny
into a foreign port, is not subject to confiscation or disposal in such
port, because it may consist of articles which are there held not to be
the subjects of property.

Mr. Webster, Sec. of State, to Mr. Everett, Dec. 28, 1841. MSS. Inst., Gr. Brit.
[In this case the cargo consisted of slaves, but Mr. Webster, in his argument,

extended the principle to goods which (e. g., opium) might be held not to

be the subject of property in the port of refuge.]

" In cases of vessels carried into British ports by violence or stress of
weather, we insist that there shall be no interference from the land
with the relation or personal condition of those on board, according to
the laws of their own country ; that vessels under such circumstances
shall enjoy the common laws of hospitality, subjected to no force, enti-
tled to have their immediate wants and necessities relieved, and to i>ur-
sue their voyage without molestation."

Mr. Webster to Mr. Everett, June 28, 1842 ; 2 Curtis's Life of Webster, 106.

Lord Aberdeen took the position with Mr. Webster that the parties
who had mutinied and carried oft' the Creole were " very innocent indi-
viduals, who had chosen fo come to her Majesty's dominions with a shii)
the possession and control of which they liad very rightfully obtained,"

159

§ 38.] SOVEREIGNTY OVER WATER. [CHAP. II.

» * # a You will have seen what passed in the court of Nassau,
when the consul of the United States made an attempt to brinjj- the
mutineei's and nmnli^ieis to trial as pirates. We have never said nor
snp|Ktsed llic.v could be tried in the British courts as pirates ; but tlie
chiefJusticH' of the Baliama Islands completely justifies these persons for
all llieyhave done, and ^oes out of his way to express doctrines and
sentiments which appear to us absolutely ferocious."

2 Curtis's Life of Webster, 99.

Mr. Webster to Mr, Everett, June 29, 1842.

See discussion in 2 Benton's Thirty years in U. S. Senate.

"A vessel on the high seas, beyond the distance of a marine league
from the shore, is regarded as part of the territory of the nation to
which she belongs, and subjected exclusively to the jurisdiction of that
nation. If, against the will of her master or owner, she be driven or
carried nearer to the land, or even into port, those who have or ought
to have control over her struggling all the while to keep her upon the
high seas, and so within the exclusive jurisdiction of her own Govern-
ment, what reason or justice is there in creating a distinction between
her rights and immunities in a position thus the result of absolute
necessity, and the same rights and immunities before superior power
has forced her out of her voluntary course?

" But, my Lord, the rule of law and the comity and practice of na-
tions go much further than these cases of necessity, and allow even to
a merchant vessel coming into any open port of another country vol-
untarily for the purposes of lawful trade, to bring with her and keep
over her to a very considerable extent the jurisdiction and authority
of the laws of her own country, excluding to this extent, by conse-
quence, the jurisdiction of the local law. A ship, say the publicists,
though at anchor in a foreign harbor, preserves its jurisdiction and its
law. It is natural to consider the vessels of a nation as parts of its
territory, though at sea, as the state retains its jurisdiction over them;
and, according to the commonly received custom, this jurisdiction is
preserved over the vessels even in parts of the sea subject to a foreign
(h)minion.

"This is the doctrine of the law of nations clearly laid down by
writers of received authority, and entirely conformable, as it is sup-
posed, Mith the practices of modern nations.

•' If a murder be committed on board of an American vessel by one
of the crew upon another, or upon a passenger, or b^^ a passenger on
one of the crew or another ])assenger, while such vessel is lying in a
port within the jurisdiction of a foreign state or sovereignty, the offense
is cognizable and punishable by the proper court of the United States
in the same manner as if such offense had been committed on board the
vessel on the high seas. The law of England is supposed to be the
same.

160

CHAP. II.] PORT LAW : NECESSITY. [§ 38.

"It is true that the jurisdiction of a nation over a vessel belonging
to it, while lying in the port of another, is not necessarily wholly ex-
clusive. We do not so consider or so assert it. For any unlawful
acts done by her while thus lying in port, and for all contracts entered
into while there by her master or owners, she and they must doubtless
be answerable to the laws of the place. iSIor, if her master or crew,
while on board in such port, break the peace of the community by
the commission of crimes, can exemption be claimed for them. But,
nevertheless, the law of nations, as I have stated it, and the statutes
of Governments founded on that law, as I have referred to them,
show that enlightened nations, in modern times, do clearly hold that
the jurisdiction and laws of a nation accompany her ships not only
over the high seas, but into ports and harbors, or wheresoever else
they may be water-borne, for the general purpose of governing the
rights, duties, and obligations of those on board thereof, and that
to the extent of the exercise of this jurisdiction they are considered
as parts of the territory of the nation herself.

" If a vessel be driven by weather into the ports of another nation, it
would hardly be alleged by any one that, by the mere force of such
arrival within the waters of the state, the law of that state would so
attach to the vessel as to affect existing rights of property between
persons on board, whether arising from contract or otherwise. The
local law would not operate to make the goods of one man to become the
goods of another man. ' ISTor ought it to affect their personal obligations
or existing relations between themselves ; nor was it ever supposed to
have such effect until the delicate and exciting question which has
caused these interferences in the British islands arose. The local law in
these cases dissolves no obligations or relations lawfully entered into or
lawfully existing according to the laws of the ship's country. If it did,
intercourse of civilized men between nation and nation must cease.
Marriages are frequently celebrated in one country in a manner not
lawful or valid in another ; but did anybody ever doubt that marriages
are valid all over the civilized world, if valid in the country in which they
took place? Did any one ever imagine that local law acted upon such
marriages, to annihilate their obligation, if the parties should visit a
country in which marriages must be celebrated in another form? * *
" A merchant vessel enters the port of a friendly state and enjoys
while there the protection of her own laws, and is under the jurisdiction
of her own Government, not in derogation of the sovereignty of tlie
place, but by the presumed allowance or permission of that sovereignty.
This permission or allowance is founded on the comity of nations, like
the other cases which have been mentioned ; and this comity is part,
and a most important and valuable part, of the law of nations, to which
all Nations are presumed to assent until they make their dissent known.
In the silence of any positive rule, affirming or denying or restraining
the operation of foreign laws, their tacit adoption is presumed to the
S. Mis. 162— VOL, T- 11 3.61

.<, ;n.] c;ovKllEIGNTY OVER WATEf?. [('ITAt>. II.

ICaslcni ports l>.v restrictions as to storage and by onerous taxation.
Vov these mischiefs adequate relief is not always afforded by reci-
procity treaties like that witb Hawaii or that lately negotiated with
Mexico and now awaiting the action of the Senate. Is it not advisable
to provide some measure of equitable retaliation in our relations witli
Governments which discriminate against our own? If, for example,
the Executive were empowered to apply to Spanish vessels and cargoes
from Cuba and Puerto Rico the same rules of treatment and scale oi'
l)enalties for technical faults which are applied to our vessels and car-
goes in the Antilles, a resort to that course might not be barren of good
results."

President Arthur, third anunal message, 1883.

"You have yourself already made known to the President several very
convincing reasons why the practice in Venezuela of demanding that
the custody of ships' papers while in port be confided to the Venezuelan
otiicers is not in consonance with the practice of nations or with com-
mercial interests. Your grounds were good, as far as they went, but
the principles underlying the question are broader, and involve the doc-
trine of reciprocity under treaty and international maritime laws.

"In the first place, it is proper that the President should be disabused
of any impression he may have formed that the matter is brought up as
an innovation. It has for more than fifty years been the occasion of
(liscussion and remonstrance with various nations of Spanish America;
and if it be now revived in connection with Venezuela, it is because it
seems necessary to the best interests of both countries that an anom-
alous practice should not exist between them in this respect.

"The discussion with Colombia is in point. In 1876 a general move-
ment of the foreign representatives at Bogota was made to secure the
abrogation of a law which required the delivery of the papers of foreign
vessels to the local port officers. An arrangement then concluded dip-
lomatically set the matter at rest by recognizing the right of the consul
of the ship's nationality to have the custody of the ships' papers of their
national vessels, and the law has since been repealed.

" I transmit, herewith, for your information, copies of two dispatches
from Mr. Dichman, then our minister at Bogota, in which the merits of
the demand are forcibly juvsented. Although the circumstances made
the argument somewhat special, as applying to a specific law, and to
the peculiar slatus of Colon and Panama as free ports, you will find in
these dispatches ample material for fortifying your representations to
the Venezuelan Government in the premises. You may, also, profitably
consult the remaining correspondence on the subject, found in the vol-
umes of foreign relations for 1875, 1879, and 1880, which are, or should
be, in the library of your legation.

"It may l)e convenient to note herein, briefly, a few points to which
l)rominence sliould be given.

150

CHAP. II.] PORT EXTORTIONS. [§ 37

"In tlie first place, the existing- rule in Venezuela is (leenied to be iu
contravention ol" the spirit of perfect equality and reciprocity of com-
merce and navigation between the two countries, as stipulated in the
abrogated treaty of 183G, and as pervading the existing treaty of 1800.
The law of the United States, following the usage of most civilized
countries, provides that the custody of the papers of foreign ships shall
rest with the consuls of their nations, and this because such custody is
deemed essential to that consular control over national vessels which
is stipulated in all our treaties. It cannot be expected that the United
States will unreservedly yield to the authorities of a foreign state a
measure of control over our vessels in their ports which is not permitted
by our own law to be exercised by our own oflQcers in our own ports, over
foreign vessels, except as a retaliatory measure in the absence of reci-
]>rocity. In this connection it may be well for you to examine as to
the provisions of Venezuelan law touching the custody of the papers of
Venezuelan vessels in foreign ports. I make this suggestion because
in the discussion of this question with Colombia it was found that the
(Colombian law was strangely inconsistent in requiring Colombian con.
suls abroad to take charge of the papers of vessels of their nation, while
denying a reciprocal practice to foreign consuls in Colombia. If a like
l;iw should be found on the Venezuelan statute books, no stronger argu-
ment in our favor could be devised.

"You should also, in this relation, call attention to the twenty-sixth
article of the treaty of 1860, and ask how it is expected that an Ameri-
can consul can exhibit the register and crew-roll of an Ameiican vessel
in proceedings for the arrest of deserters, if at no time he is permitted
to have possession of those papers.

"In the second place, apart from considerations of reciprocity founded
on treaty, the sacredness of the principles of reciprocity as an enduring
basis of international intercourse under the law of nations may be for,
cibly invoked to sustain our position. A vessel, under a civilized flag-
on the high seas or in a foreign port, possesses a national life of which
its papers are the strongest evidence. They are to all intents a part of
the vessel itself. To assume that by the act of entering a friendly port,
a vessel is to be stripped of that which is in a large measure essential to
the proof of its nationality, and to await the pleasure of a local foreign
officer before such i)art of its life can be restored to it, is inconsistent
with international principles and usage. Hence, we find that the cus-
tom of nations (with but few exceptions iu the Spanish- American ports
of South America) recognizes the consul of the vessel's nationality as
the sole guardian of all national rights appertaining thereto. The ex-
ceptions to which I refer (and which are happily growing fewer as the
principles of international intercourse are better understood) rest on no
broad principle of comity ; they violate comity, on the contrary, by assert-
ing a painful spirit of distrust. It is, as Mr. Dichmau aptly expresses
it in a dispatch of Seiitember 4, 1879 (Foreign Eelations, 1880, page 313),

151

^^ 38.] SOVEREIGNTY OVER WATER. [CHAP. II.

"A coiivcMitioii was coucluded at Madrid ou the 5tli of March, 1860,
cstalili.sliin.u a Joint commission for the liiial adjudication and payment
of all Hie chiinis of the respective parties. Bj^ this the validity and
amount of the Cuban claims were expressly admitted, and their speedy
])ayment was placed beyond question. The convention was transmitted
to the Senate for their constitutional action on the 3d of May, 1860, but
on the 21th of June they determined, greatly to the suprise of the
President and the disappointment of the claimants, that they would
'not advise and consent' to its ratification.

"The reason for this decision, because made in executive session, can-
not be positively known. This, as stated and believed at the time, was
because the convention had authorized the Spanish Government to pre-
sent its Amistad claim, like any other claim, before the board of com.
missioners for decision. This claim, it will be recollected, was for the
payment to the Spanish owners of the value of certain slaves, for which
the Spanish Government held the United States to be responsible under
the treaty with Spain of the 27th October, 1795. Such was the evidence
in its favor that three Presidents of the United States had recommended
to Congress to make an appropriation for its payment, and a bill for
this purpose had passed the Senate. The validity of the claim, it is
proper to observe, was not recognized by the convention. In this re-
spect it was placed on the same footing with all the other claims of the
])arties, with the exception of the Cuban claims. All the Spanish Gov-
ernment obtained for it was simply a hearing before the board, and this
could not be denied with any show of impartiality. Besides, it is quite
certain that no convention could have been concluded without such a
l)rovision.

" It was most probably the extreme views of the Senate at the time
against slavery, and their reluctance to recogoize it even so far as to
l)ermic a foreign claimant, although under the sanction of a treaty, to
raise a question before the board which might involve its existence,
that caused the rejection of the convention. Under the impulse of such
sentiments, the claims of our fellow-citizens have been postponed if not
finally defeated. Indeed, the Cuban claimants, learning that the objec-
tions in the Senate arose from the Amistad claim, made a formal offer
to remove the difliculty by deducting its amount from the sum due to
them, but this, of course, could not be accepted."

!Mr. Buchanan's defense quoted 2 Curtis's Buch., 223.
As to Amistad case, see, fully, ivfra $ 161.

"The case of the Rebecca is one of a number which have lately
hai)pened in various parts of the world under the Spanish or Spanish-
American law. From Manila, from Spain, from Cuba, from Venezuela,
from Mexico, the same story comes of vessels driven by stress of
weather to deviate in some measure from the plan of their voyage, and
punished by heavy fines, or even confiscation, because the document^
16i

CHAP. II.] rOKT LAW : NECESSITY. [§ 38.

or cargo do not conform to the rules laid down for regular dire.ct im-
portations. The frequency with which cases of inhospitable treatment
like this are brought to the notice of this Government is a cause of
apprehension. Some of the instances which have come under our
observation show subjection to treatment not far removed from the
ancient rule by which a vessel out of her course or stranded on strange
coasts became lawful plunder. The course of modern civilization has
exempted shipwrecked vessels and crews from inhospitable treatment,
and it may not be chimerical to hope for a better international under-
standing which may leniently free a vessel in distress from the perils
of a rigid interpretation of the letter of a law applicable only to regular
and undistressed arrivals."

Mr. Frelinghuysen, Sec. of State, to Mr, Morgan, Apr. 7, 1884. MSS. Inst.,
Mexico.

A vessel " anchored outside of the bar, near the harbor of Tampico,
in an exceptionally rough sea, at the close of a severe storm, which
rendered it unsafe for her to attempt to cross the bar or enter the har-
bor," " could scarcely be said, with strict propriety, to have been in
Mexican waters."

Mr. Frelingbuysen, Sec. of State, to Mr. Morgan, May 17, 1884. MSS. Inst.,
Mex. ; For. Eel., 1884.

A United States merchant vessel, driven into a Mexican port against
the will of her officers, and by storms which they could not prudently
escape, is entitled to redress from Mexico, through the agency of this
Dei3artment, for injury sustained by her from being run into negligently
by a Mexican cruiser.

Mr. Bayard, Sec. of State, to Mr. Jackson, July 2, 1885. MSS. Inst., Mex.

Casus, in such cases, is a defence to a charge of invasion of port laws.

Same to same, Sept. 14, 1885, id.

As to Venezuelan penalties on vessel seeking port in distress sea Mr. Freling-

liuysen. Sec. of State, to Mr. Baker, Feb. 18, 1884 ; April 1, 1884. MSS.

Inst., Venez.

The Rebecca was a United States merchant vessel engaged in the
coastwise trade. She was bound for Tampico, Mexico, but had on
board some packages for Brazos, Texas. When she arrived off Brazos,
she was met by a violent storm which drove her south, and after it
abated she made for Tampico. There she was seized, and because the
packages intended for Brazos were not on her Mexican manifest she
and her cargo were confiscated. The question of law in the case is
. whether, the packages intended for Brazos having been brought into
Tampico through stress of weather, the vessel was " liable to penal
process m such port either for ' smuggling' or for * bringing goods into
the port without proj)er papers.'

165

§ 37.] SOVEREIGNTY OVER WATER. [CHAP. II.

side of the island of Cuba. Under circumstances of great apparent
li.inlsliip, a line of $1,900 was imposed on the vessel, and the master,
Captain PhilliiKs, was obliged to execute a bond, with sureties for the
amount, in order to secure a clearance for his vessel.

" In each of these cases instructions have been forwarded to you, and
they are adverted to here only as being pertinent to the general sub-
ject of this instruction.

" They are exami)les of many similar occurrences to American vessels
in the colonial i)orts of Spain. Hitherto the consul-general of the
United States at Havana has been able to secure an adjustment of such
cases by prosecuting the complaints to the superior authorities at that
port, and efiforts looking towards the same end were made by that officer
in each of the cases referred to. He was met, however, with the an-
nouncement that under an existing ordinance, the strict observance ot
which has been re enjoined by a rojal order recently promulgated in
(Jul)a, tlie local authorities can no longer deal with such questions, but
that they must be remitted for settlement to the Government at Madrid.
The adoption of this course of procedure by Spain has very much ag-
gravated this general grievance to American commerce. Complaints
of such instances liave of late become so frequent from owners and
masters of American vessels that the question demands the most serious
attention of this Government. The President therefore directs me to
instruct you to bring the question to the attention of His Catholic
INIajesty's Government, and in doing so you will request that authority
shall be given, either to the captain-general in Cuba or to His Majesty's
minister at this capital, to consider such cases and grant redress when
necessary. The arbitrary conduct of subordinate officials in Cuba can-
not be submitted to without retaliation on Spanish vessels and com-
merce, unless there is secured a more speedy remedy than is afforded by
resort to Madrid."

Mr. Frclingbnysen, Soc. of State, to Mr. Hamliu, Feb. 1.5, 1862. MSS. Inst.,
Spain; For. Rel., 1882.

" Mr. James McKay, a citizen of the United States resident in Monroe
County, Florida, and who is extensively engaged in feeding and ship
ping cattle to Cuban markets, has recently brought to the attention of
tlie l)ei):irtment a practice pursued by the Spanish consul at Key West,
ill regard to shipments from that port to Havana and other Cuban
ports, which results in annoyance, inconvenience, and serious losses to
liin)self and other American citizens engaged in similar business.

" It appears from Mr. McKay's letter of the 22d of June last to the
J)epartment, that the Spanish consul at Key West, in pursuance, as
tliat officer alleges, of instructions from his Government, exacts and
collects from Mr. McKay and other American cattle shippers 40 cents
a head on all cattle shipped by them from the State of Florida to Cuba.
This is in addition to the ordinary and usual consular fees charged and

CHAP. II.] PORT EX.TORTIONS. [§ 37.

collected for clearing the vessel, certifying papers, and such other
charges as may properly be made by the consul in connectiouvwith such
shipments. On these same cattle, when landed on the island of Cuba,
Mr. McKay and the other shippers situated like him have to pay an
import duty of $6 per head. Of this import duty paid in Cuba, how-
ever onerous it may be, they make no complaint, recognizing the right
of the Spanish Government to impose and collect within its own terri-
torial jurisdiction such duties as it may deem proper under its own mu-
nicipal laws, provided it does not transcend the limits of treaty stipu-
lations.

"In the letter referred to, Mr. McKay transmits thirteen protests
made by him, before a notary public, in relation to as many shipments,
giving in each case the name of the vessel, the number of cattle in the
cargo, the date of shipment, and the gross amount of head-tax charged
on each shipment. Thus, on the 22d of April, 1882, on the steamship
Alabama, from Key West to Havana, 451 head of cattle, upon which he
paid to the consul in question $180.40, and so on through all the others,'
varying only in the number of cattle in each cargo and the gross amount
of tax paid. A subsequent letter from McKay on the 19th ultimo in-
closes ten similar documents. These twenty-three protests represent
as many shipments made by him from Key West to Havana between
the 22d of April and the 7th of Au^'ust of the present year, and em-
bracing 10,967 head of cattle, upon which Mr. McKay has paid to the
Spanish consul at Ke;5i West, at 40 cents a head, $4,386.80, and when
the $6 a head paid upon their being landed at Havana ($65,802) is
added, it is seen that this one American shipper has been obliged to
pay to the Spanish Government the sum of $70,188.80 before he gets his
cattle into the Cuban market.

" The charge, nevertheless, under whatever supposed right or neces-
sity on the part of Spain it may be imposed, is in effect such a restric-
tion, and is a burden so onerous on American citizens engaged in that
rapidly increasing branch of American commerce as must in time haves
the effect of excluding them from the Spanish colonial markets of Cuba.
It is a charge, moreover, upon whatever ground it may be placed, that
is in itself anomalous. ISTo other Government with which the United
States hold commercial relations attempts to make or enforce any
similar tax or charge in the ports of the United States, and it is almost
superfluous to state that the consular officers of the United States are
not authorized to njake any similar charges in the ports of Spain or her

147

^<; 40.] SOVEREIGNTY OVER WATER. [CHAP. II.

Tlic liiw (Iocs not ])roliibit armed vessels belonging to citizens of the
rniU'd States Iroui sailing out of our i)orts ; it only requires the owners
to give security that such vessels shall not be employed by them to
••oMiniit hostilities against foreign po\yers at peace with the United
States.

U. S. V. Quincy, 6 Pet., 445.

XVII. NEUTRALIZED WATERS.
§ 40.

The treaty of Washington, of April 19, 1850 (Clayton-Bulwer), recites
at the outset the desire of the parties to set forth by '' a convention
their views and intentions with reference to any means of communica-
tion by ship-canal, which may be constructed between the Atlantic and
Pacific Oceans, by the way of the river St. Juan de Nicaragua and
either or both of the lakes of Nicaragua or Managua, to any port or
place on the Pacific Ocean." In Article V it is engaged " that when the
said canal shall have been completed they will protect it from interrup-
tion, seizure, or unjust confiscation, and that they will guarantee the
neutrality thereof, so that the said canal may forever be open and free,
and the capital invested therein secure." But this neutrality and guar-
antee was conditioned on the managers making regulations " not con-
trary to the spirit and intention of the convention," and to the with-
drawal six months' notice is requisite. It is further provided (Article
VIII) that the contracting parties " having not oi4y desired, in entering
into this convention, to accomplish a particular object, but also to estab-
lish a general principle," agree to " extend their protection, by treaty
stipulations, to any other practicable communications, whether by canal
or railway, across the isthmus which connects North and South Amer-
ica, and especially to the interoceanic communications, should the same
prove to be practicable, whether by canal or railway, which are now
proposed to be established by way of Tehuantepec or Panama." The
free use of such transit is to be open to all states joining in the guar-
antee.

This treaty is the only instance in which the United States has con-
sented to join with any European power in the management of political
interests in the western hemispliere; and the treaty is remarkable, not
merely because it is a dei)arture from the settled policy of the United
States not to sanction any European interference in the affairs of
Aineriea, but because, deviating in this way from our settled system, it
undertakes, in concert with a foreign power, to determine a question
the most important to the United States that can arise outside of our
own territory. Ilerealter, in §§ 57, 72, will be considered the general
jmliey of the United States to which this is an exception, and in §§ 287,
jf, the questions of international law imniediatelv arising from our
relations to the isthmus. It will also be hereafter shown that so far as
tlie Clayton-Btilwer treaty (of 1850) relates to the then recent projected
Nicaraguan canal, it is now obsolete, that canal having been aban-
doned, and the concession to it recalled by Nicaragua; and that the
eighth article of the treaty, as given above, cannot any longer, from
change of circumstances, and other causes, be enforced. Infra, § 150/".

168

CHAP. II.] KEUTRALIZED WATERS. [§ 40.

Eivers which pass through several states are, as we have seen, ueu-
fralized, so far as concerns the several riparian sovereigns, sometimes
hy a tacit understanding of the law of nations to this effect, sometimes
by treaty.

Supra, § 30.

The neutralization of the Rhine is thus limited by the twenty-sixth
article of the treaty of Vienna of 1815.

" If it should happen that war should break out among the states of
the Rhine, the collection of the customs shall continue uninterrupted
without any obstacle being thrown in the way of either party. The
vessels and persons employed by the custom-houses shall enjoy all the
rights of neutrality."

On July 13, 1840, a convention was entered into at London between
Great Britain, Austria, Prussia, Russia, and the Ottoman Porte "for
the purpose of maintaining the principle that the passage of the Straits
of Dardanelles and of the Bosphorus shall remain always closed against
foreign ships-of-war while the Porte is at peace." France was not con-
sulted as to this treaty, which was precipitated by the revolt of Meheniet
Ali, whose relations with France were intimate, against the Porte. This
exclusion was much resented by France, and for a time it seemed as if
the " neutralization" in this case would be broken up by an immediate
hostile attack. (See Guizot's Embassy to the Court of St. James,
chapts. 6, 7.) Kor was the United States consulted, or in any way a
party to the procedure, and is not, therefore, bound by the neutraliza-
tion.

The treaty of Paris of 1856, to which most of the great European
powers assented, but to which the United States was not a party, ex-
tended still further this neutralization. By its ninth article it provides
that "the Black Sea is neutralized; its waters and its ports, thrown
open to the mercantile marine of every nation, are formally and in per-
petuity interdicted to the flag of war, either of the powers possessing
its coasts or of any other power, with the exceptions mentioned in Ar-
ticles XIV and XIX of the present treaty." By the tenth article of a
supplementary treaty of the same date the " Sultan declared he was
firmly resolved to maintain for the future the principle invariably es-
tablished as the ancient rule of his Empire, and by virtue of which it
has at all times been prohibited for the ships-of-war of foreign powers
to enter the Straits of the Dardanelles and of the Bosphorus, and that,
so long as the Porte is at peace, His Majesty will admit no foreign ships-
of-war into the said straits." The six other signatories " engaged to re-
spect this determination of the Sultan, and to conform themselves to
the principle above declared." The clause as to the neutralization of
the Black Sea was abrogated by the first article of the treaty of Lon-
don, of March 13, 1857, but there was a renewal of the rule closing the
Dardanelles and the Bosphorus to ships-of war; the right being re-
served, however, to the Sultan, of "oi)eiiing them in time of peace to
the vessels of-war of friendly and allied powers, in case the Sublime
Porte should judge it necessary, in order to secure the execution of the
stipulations of the treaty of Paris of 3()th March, 1856."

Great Britain, on August 27, 1856, solemnized with Honduras a treaty
which may be regarded as an appeudage to the clauses in the Clayton-
Bulwer treaty above given. An "additional article," as it is called, to
the British-Honduras treaty provides that "in consideration of the
concessions previously named, and in order to i ecure the construction

169

^S -a.] SOVEREIGNITY OVER WATER. [CHAP. II.

(he riir-o of the vessel, uiid uot a specific fee for 5i specific act performed
by a Spanish oificor.

'' >:()t oi)ly is tlie reply of the Marquis do la Vega unsatisfactory in its
general aspect, but it is even more so with respect to the particular rec-
lamations made for the return of the excessive capitation charged on
cattle shipped from Key West by Mr. McKay and others. His excel-
lency admits that the tax was wrongfully collected ; that the circular of
the ISth October, 187G, suppressed the charge of 40 cents per capita and
substituted a tonnage tax of 10 cents, and that the unlawful collection
of the old rates, notwithstanding their formal abrogation, has only re-
cently been i)Ut a stop to.

" It does not appear to this Government a sufficient or just reparation
for a wrongful act admittedly perpetrated by the Spanish officers of the
tonsulate at Key West since 1876 to give orders that hereafter the
wrongful tax shall not be collected. The case is conceived to be one
where no less a reparation than the return of the illegally collected ex-
cess could satisfy either the right pertaining to the United States or
the high sense of justice of Spain. It will doubtless be enough for you
to call the attention of the minister of state to this point to insure the
cheerful correction of the oversight, and a prompt offer to refund the
overcharge in question."

Mr. John Davis, Acting Sec. of State, June 23, 1883, to Mr. Foster. MSS. Inst.,
Spain; For. Rel., 1883.

Fraud, when essential to sustain a custom-house confiscation, is only
to be held to exist when plainly to be inferred from the facts.

Mr. Frelinghuysen, Sec. of State, to Mr. Foster, Feb. 25, 1884. MSS. Inst., Spain.
Mr. Bayard, Sec. of State, to Mr. Foster, July 25, 1885. MSS. Inst., Spain.

An American vessel, having been embargoed in a port of Brazil by
<rorr)pet«'nt authority, was unlawfully taken away by her master, with-
out the payment of the required charges, and brought to New York.
It was advised that, as the act of the master did not violate any statute
of the United States, the request of Brazil that measures be taken
against him by this Government could not be complied with.
10 Op., '282, Devens, 1879.

Under the Constitution of the United States a statute of a State en-
acting tliat the masters and wardens of a port within it should be en-
titled to demand and receive, in addition to other fees, the sum of $5,
wliether called on to i)erform any service or not, for every vessel arriv-
ing in t!iat port, is a tonnage tax, and is unconstitutional and void.

steamship Comp.iiiy r. Port Wardens, 6 Wallace, 31.

rt has also been held that while taxes levied by a State upon vessels

() w tied by i ts citizens as property, and based on a valuation of the same, are

not prohibited by the Federal Constitution, yet taxes cannot be imposed

on them by the State ^'at so much per ton ofthe registered tonnage,"

158

CHAP. II.] PORT LAW : NECESSITY. [§ 38.

Such taxes are within the prohibition of the ContStitntion that "no
State shall, without the consent of Congress, lay any duty of tonnage."
Nor is the case varied by the fact that the vessels were not only owned
by citizens of the State, but exclusively engaged in trade between
I)laces within the State.

State tonnage tax cases, 12 Wallace, 204.

Any duty, or tax, or burden imposed under the authority of the
States, which is in its essence a contribution claihied for the privilege
of arriving and departing from a port of the United States, and which
is assessed on a vessel according to its carrying capacity, is a tonnage
tax within the meaning of the Federal Constitution, and therefore void.

Cannon v. New Orleans, 20 Wallace, 577.

TY.—EXEMP'IION FROM STRESS OF WEATHER, VIS MAJOR, OR INAD-
VERTENCE.

§ 38.

Mr. Webster, Sec. of State, to Mr. Everett, Dec. 28, 1841. MSS. Inst., Gr. Brit.
Same to same, Feb. 12, 1842. (Creole case.)

Mr. Webster, Sec. of State, to Mr. Everett, Dec. 28, 1841. MSS. Inst., Gr. Brit.
[In tbis case tbe cargo consisted of slaves, but Mr. Webster, in bis argument,

extended tbe principle to goods wbicb (e. g., opium) migbt be beld not to

be the subject of property in tbe port of refuge.]

Mr. Webster to Mr. Everett, June 28, 1842 ; 2 Curtiss Life of Webster, 100.

Lord Aberdeen took the position with Mr. Webster that the i)arties
who had .mutinied and carried oti" the Creole were " very innocent indi-
viduals, who had chosen to come to her Majesty's dominions with a .shij)
the possession and control of which they had very rightfully obtained."

159

^^ 45.] INTERVENTION. [CHAP. III.

I. GENERAL RULE IS NON-INTERVENTION.

§ 45.

" Europe has a set of primary interests which to us have none or a
vt'ry remote rehitioii. lleuce, she must be engaged in frequent contro-
versies, the causes of which are essentially foreign to our concerns.
1 Iciice, tlierefore, it must be uuwise in us to implicate ourselves by arti-
liciiil ties in the ordinary vicissitudes of her politics, or the ordinary
combinations and collisions of her friendships or enmities. Our de-
taclied and distant situation invites and enables us to pursue a different
course."

President Washington's Farewell Address, 1797.

" ' You are afraid,' says Mr. Oswald to-day, • of being made the tool
of the jmwers of Europe.' 'Indeed, I am,' said I. 'What powers?'
said lie. 'All of them,' said I. ' It is obvious that all the powers of
ICurope will be continually manoeuvering with us to work us into their
real or imaginary balances of power. They will all wish to make of us
a make-weight candle, when they are weighing out their pounds. In-
ihM'd, it is not surprising, for we shall very often, if not always, be able
to turn the scale. But I think it ought to be our rule not to meddle;
and that of all the powers of Europe, not to desire us, or, perhaps, even
to jtermit us, to interfere, if they can help it.' "

Mr. John Adams's Diary, Nov 18. 1782 ; 3 John Adams's Works, 316.

" Peace is made between Eussia and the Porte, and the definitive
treaty between England and Holland is expected to be soon signed.
May the world continue at i)eace! But if it should not, I hope we shall
have wisdom enough to keep ourselves out of any broil. As 1 am quite
in sentiment with the Baron de Nolken, the Swedish ambassador at St.
.laines'.s, who did me the honor to visit me, although I had not visited
liim. 'Sir,' said he, 'I take it for granted that you will have sense
•Miou^ih to see us in Europe cut each other's throats with a philosophical
tranquillity.' "

Mr. .1. .\(laniH to the President of Congress, February 10, 1784; 8 John Adams's
NVuiks. 17S.

'• I am .sensible that your situation must have been difficult during
Wm' transition from the late form of government to the re-establishment
of S..I1H. <.ther legitimate authority, and that you may have been at a
loss to <h'termine with whom business might be done; nevertheless
wImmi prim-iplos are well understood, their application is less embar-
rassing. W.' surely cannot deny to any nation that right whereon our
own (Government is founded, that every one may govern itself according
to whatever form it ideases, and change these forms at its own will;
and that it may tran.sact its business with foreign nations through
172

CHAP. III.] GENERAL liULES. [§ 45.

whatever organ it thinks proper, whether king, convention, assembly,
committee, i)re8i(lent, or anything else it may choose. The will of the
nation is the only thing essential to be regarded. On the dissolution
of the late constitution in France, by removing so integral a part of it
as the King, the national assembly, to whom a part onl3^ of the ])ublic
authority had been delegated, apjiear to have considered themselves as
incompetent to transact the affairs of the nation legitimately; they in-
vited their fellow-citizens, therefore, to appoint a national convention."

Mr. Jefferson, Sec. of State, to Mr. Morris, March 12, 179:3. MSS. lust., Ministers.
(See3 Jeff. Works, 521.)

"We love and value peace; we know its blessings from experience.
We abhor the follies of war, and are not untried in its distresses and
calamities. Unmeddling with the affairs of other nations, we had hoped
that our distance would have left us free, in the example and indul-
gence of peace with the world."

Mr. Jefferson, Sec. of State, to Messrs. Carmichael and Short, June 30, 1793.
MSS. Inst., Ministers; 4 Jeff. Works, 9.

"The principle of foreign affairs, which I then advocated, has been the
invariable guide of my conduct in all situations, as ambassador in
France, Holland, and England, and as Vice-President and President of
the United States, from that hour to this. * * * This principle was
that we should make no treaties of alliance with any European power;
that we should consent to none but treaties of commerce; that we should
separate ourselves as far as possible, and as long as possible, from all
European politics and wars. In discussing the variety of motions which
were made as substitutes for Mr. Chase's, I was remarkably cool, and,
for me, unusually eloquent. On no occasion, before or after, did I ever
make a greater impression on Congress."

Mr. J. Adams to Dr. Eush, Sept. 30, 1805 ; 1 John Adams's Works, 200.

"If I could lay an embargo, or pass a new importation law against
corruption and foreign influence, I would not make it a temporary but
a perpetual law, and I would not repeal it, though it should raise a
clamor as loud as my gag-law or your grog-law, or Mr. Jefferson's em-
bargo."

Mr. J. Adams to Mr. Rush, Sept. 27, 180S; 9 John Adams's Works, 604.

"Our form of government, inestimable as it is, exposes us more than
any other, to the insidious intrigues and pestilent influence of foreign
nations. Nothing but our inflexible neutrality can preserve us. The
public negotiations and secret intrigues of the English and the French
have been employed for centuries in every court and country of Europe.
Look back to the history of Spain, Holland, Germany, Russia, Sweden,
Denmark, Prussia, Italy, and Turkey, for the last hundred years. How
many revolutions have been caused! How many emperors and kings

i73

^5; ;>,7.1 sn\ KKKTCXTV OVER WATER. [CUAP. IT.

of Mcxitu, is :it tlic iiioiiiciit. so eanicRlly cn^iaji^iMl in Costoriiit;', shoiild
he as lar as jiracticablc reuioved. Jn most iu-stauces tliese arbitrary
and irrcjiular proceedings are directed against small vessels, and often
in tlicir rcsnlts involve losses far beyond the pecuniary value of the
\essel. The masters are driven to the courts for redress, often by ap-
peal to the Supreme Court, at great expense; and the instances are
lew, if, indeed, any can be found, where the (;ourts have sustained the
action of the customs oflicers. Jn bringing the present claim to the at-
tention of the minister for foreign affairs, which you will do with as
littU' delay as convenient, you will also submit to the n)inister, for the
consideration of the Government, these general suggestions which I
have felt it my duty to offer."

Mr. iMcliiigliiiyseii, Soc. of State, to Mr. Morgan, Jan. 'M, 1883. MSS. Inst.,
Mexico.

" Your dispatch No. 5G2, of the Gth instant, relating to the case
of the Adriana at La Paz, has been received and has had careful at-
tention.

"As your dispatch shows you to have been fully informed of the
facts upon the date of writing, there is no present need of herein re-
"iting the case.

" Your conclusion accords with that of this Department, that the
^.irse, on the admitted statements, presents certain grave features.

"1. The refusal of the Mexican authorities to allow Captain Caleb
to* have access to the consul when arrested, or when called upon to
plea<l.

" 2. Their action in requiring Captain Caleb to sign certain declara-
tions while mconwinnicnclo and without knowledge of their jiurport,
esi)ecially as it appears that these so-called declarations may be relied
upon to establish the Mexican claim that Captain Caleb admits a viola-
tion of the criminal law of Mexico. That Captain Caleb signed the
[)a])ers in question under bodily fear or constraint is not yet fully
established. If it were, it would lend an exceptional gravity to the
vase.

".'}. Tile refusal of the collector to permit the consul to visit the
vessel.

" It is of course impossible to judge fully of the case until the text
of the so-called declarations of Captain Caleb is known. It may be
a.ssumed, however, from the character of the sworn declarations made
by him and his oflScers before Consul Viosca that it could not have
been his intelligent or voluntary intention to put his name to a con-
fession that he was willfully violating the laws of Mexico in regard to
smuggling. • • •

" If you have not already done so, you will now address Senor
Mariscal. asking an examination, and requesting copies of the declara-
tiom signed by Captain Caleb. You will intimate to the minister that
154

CHAP. II.] POl^T EXTORTtorS. [§ .87.

the intinner iu wliicli Cai)taiii Caleb alleg<\s lie uii.s coiisii'aiiJiMl lo s'\gu
papers of tlie coiiteuts of whicb he was ignorant, and while deprived
of the assistance of the consul for his intelligent i)rotection against
auy misunderstanding on his part, is regarded as an irregularity which,
in the judgment of this Government, will deprive those declaratious
of any moral weight if they be trusted to sustain the charge of smug
gling brought against the captain. And you will further intimate
that the whole course of the proceedings appears to be so inconsistent
witli the principles recognized in the intercourse of maritime states
that persistence in the prosecution of Captain Caleb on those i>remises
could not fail to call forth the most earnest remonstrance of this-
Government.

"It is not the desire or purpose of this Government to screen auj of
its citizens who may have willfully violated foreign law. But it is its
plain duty to endeavor by every legitimate means to secure for its cit-
izens under accusation of wrongdoing such justice and impartiality
of treatment and such safeguards for their defense as shall entitle the
judgment reached to the respect which judicial proceedings should
everywhere command.

"If the rules of international justice shall appear to have been in
any way infringed, it is the undeniable right and obligation of this
Government to interj^ose its diplomatic offices to insure a fair trial.

"To so practical a jurist as yourself these brief indications will suf-
fice for the present conduct of this case."

Mr. Frelinghuyeen, Sec. of State, to Mr. Morgan, Feb. 20, ISSfi. MSS. Inst.,
Mex. ; For. Eel., 1883.

"Mr. Reed's No. 221, of the 28th ultimo, has been received, and the
reply of the Spanish Government therewith transmitted, in relation to
the Spanish consular fee, has been considered.

"The files of your legation contain such i^recise instructions on the
points in dispute that I need do no more than refer you to the records
for a full view of our position in the controversy. Briefly, however,
we claimed that the fee imi)osed represented no clerical act of the con-
sul and afibrded no guarantee to the home Government that the in-
voices are themselves correct, or that they oorresj)ond with the mani-
fest, and therefore that the charge of 10 cents i)er ton or 40 cents per
head of cattle, when levied by the consul, amounted simply to an ex-
port tonnage or per capita tax levied by Spain within the territory of
a friendly state. His excellency the Marquis de la Vega apparently

155

§ 45.] INTERVENTION. [CHAP. III.

jrree of nnoiciice and submission but little, if anything, short of that
which is entertained for the Constitution itself. To enable it to pre-
serve the one, we have penal laws which subject to the severest punish,
inent all attempts, within the scope of their authority, to aid or abet
either i)arty in a war prosecuted between foreign nations with which
the United States are at peace; and it is made a standing instruction
to our ministers abroad to observe the other with scrupulous fidelity."
Mr. Van Buren, See. of State, to Mr. Butler, Oct. 16, 1829; MSS. Inst., Am.
States.

" One of the settled principles of this Government is that of non-in-
terference in the domestic concerns of nations ; and as it would not
tolerate it in others, so must every act of its own functionaries, which
might be construed into a departure from this principle, incur the
decided disapi)robation of the President."

Mr. Van Buren, Sec. of State, to Mr. Hamm, Oct. 15, 1830; MSS. Inst., Am.
States.

"By no country or persons have these invaluable x)rinciple8 of inter-
national law — principles, the strict observance of which is so indis
pensable to the preservation of social order in the world — been more
earnestly cherished or sacredly respected than by those great and good
men, who first declared, and finally established, the independence of
our own country. They promulgated and maintained them at an early
and critical period in our history ; they were subsequently embodied in
legislative enactments of highly [)enal character, the faithful enforce-
ment of which has hitherto been, and will, I trust, always continue to
be, regarded as a duty inseparably associated with the maintenance of
our national honor. That the people of the United States should feel
an interest in the spread of political institutions as free as they regard
their own to be, is natural ; nor can a sincere solicitude for the success
of all those who are, at any time, in good faith struggling for their ac-
tpiisition, be imputed to our citizens as a crime. With the entire
freedom of ()[)inion, and an undisguised expression thereof, on their
part, the Government has neither the right, nor, 1 trust, the disposition,
to interfere. But whether the interest or the honor of the United States
nM|nir(>s that tliey should be made a party to any such struggle, and, by
inevitable consequence, to the war which is waged in its support, is a
question which, by our Constitution, is wisely left to Congress alone to
d«-(;i(h-. It is, by the laws, already made criminal in our citizens to em-
barrass or anticipate that decision by unauthorized military operations
on their part."

President Van Buren's Second Annual Message, 1838. (See discussion in 2 Ben.
ton's Thirty Years in the Senate. 276.)

In .the adoption (in 18;M-'.35) by the new South American States of
their commercial policy," the United States, consistent throughout
X76

CHAP. III.] GENERAL RULES. [§ 45.

in the disiuteresteduess of their conduct towards them (the South
American States) desire no preference. But they know too well what
is due to themselves to be satisfied if a preference be granted to others."

Mr. Forsyth, Sec. of State, to Mv. Butler, Nov. 11, 1834; MSS. Inst., Mex.

"The great communities of the world are regarded as wholly inde-
pendent, each entitled to maintain its own system of law and govern-
ment, while all in their mutual intercourse are understood to submit to
the established rules and principles governing such intercourse. And
the perfecting of this system of communication among nations, requires
the strictest application to the doctrine of non-intervention of any with
the domestic coucerjis of others."

Mr. Webster, Sec. of State, to Mr. Everett, Jan. 29, 1842; MSS. Inst., Great
Britain.

For message of President Tyler of Jan. 9, 1843, in reference to Quintuple Alli-
ance for the suppression of the Slave Trade, see MSS. Rep. Book, Dep. of
State, vol. 6.

"In proclaiming and adhering to the doctrine of neutrality and non-
intervention, the United States have not followed the lead of other
civilized nations j they have taken the lead themselves, and have been
followed by others.

"Friendly relations with all, but entangling alliances with none, has
long been a maxim with us. Our true mission is not to propagate our
opinions or impose upon other countries our form of government by
artifice or force, but to teach by example and show by our success,
moderation and justice, the blessings of self-government and the ad-
vantages of free institutions. Let every people choose for itself, and
make and alter its i)olitical institutions to suit its own condition and
convenience. But while we avow and maintain this neutral policj^ our-
selves, we are anxious to see the same forbearance on the part of other
nations, whose forms of government are difiereut from our own. The
deep interest which we feel in the spread of liberal principles and the
establishment of free governments, and the sympathy with which we
witness every struggle against oppression, forbid that we should be
indifferent to those in which the strong arm of a foreign power is in-
voked to stifle public sentiment and repress the spirit of freedom in
any country."

President Fillmore's Second Anuual Message, 1851 (Mr. Webster, Sec. of State).
For Mr. Webster's Hlilsemaun Letter, Dec. 21, 1850, in which intervention is

generally discussed, see infra, '^ 47.
For Mr. Everett's discussion of the question in his note to Mr. Crampton, of Dec.

1, 1852, see infra, § 72.

"Before this reaches you, the election in France will be over; and if,
as is probable, a decided majority of the people should be found to sup-
port the President, the course of duty for you will become plain. From
S. Mis. 1G2— YOL. I 1!* 177

yS 45.] INTERVENTION. [CiiAP. III.

Prosideut Washington's time, down to the j)iesent day, it has been a
principle always acknowledged by the United States that every nation
l)ossesses a right to govern itself according to its own will, to change
its institutions at discretion, and to transact its business through what-
ever agents it may think proper to employ. This cardinal point in our
l)oliey has been strongly illustrated by recognizing the manj^ forms of
political power which have been successively adopted in France in the
series of revolutions with which that country has been visited. Through-
out all these changes the Government of the United States has con-
ducted itself in strict conformity to the original principles adopted by
Washington, and made known to our di])lomatic agents abroad, and to
the nations of the world, by Mr. Jefferson's letter to Gouverneur Morris,
of the 12th of March, 1793; and if the French i)eople have now, sub-
stantially, made another change, we have no choice but to acknowledge
that also; and as the diplomatic representative of your country in
France, you will act as your predecessors have acted and conform to
what ai)pears to be settled national authority. And, while we deeply
regret the overthrow of popular institutions, yet our ancient ally has
still our good wishes for her prosperity and happiness, and we are
bound to leave to her the choice of means for the promotion of those
ends."

Mr. Webster, Sec. of State, to Mr. Kives, Jan. 12, 1852; MSS. Inst., France.
As to recognition of changes in foreign governments, see infra, §^ 69, 70.

"Among the oldest traditions of the Federal Government is an aver-
sion to political alliances with European powers. In his memorable
farewell address, President Washington says: 'The great rule of con-
duct for us, in regard to foreign relations, is, in extending our commer-
cial relations, to have with them as little political connection as possi-
ble. So far as we have already formed engagements, let them be fulfilled
with perfect good faith. Here let us stop.' President Jefferson, in his
inaugural address, in 1801, warned the country against 'entangling al-
liances.' This expression, now become proverbial, was unquestionably
used by Mr. Jefferson, in reference to the alliance with France in 1778,
an alliance at that time of incalculable benefit to the United States,
but which in less than twenty years came near involving us in the wars
of the French lievolution, and laid the foundation of heavy claims upon
Congress, not extinguished to the present day. It is a significant co-
incidence that the particular i)rovision of the alliance which occasioned
these evils was that under which France called upon us to aid her in
flefending her West Indian possessions against England. Nothing less
than the unbounded influence of Washington rescued the Union from
the perils of that crisis and preserved our neutrality."

Mr. Everott, Sec. of State, to Mr. Sartiges. Dec. 1, 1852; MSS. Notes France;
quoted in full, infra $ 72.

178

CHAP. III.] GENERAL RULES. [§ 45.

"Your dispatch No. 174 of the 25th of Noveiuber was received yes-
terdiiy. It announces the result of the appeal to the people of France,
on the subject of the restoration of the Empire, as far as the returns
of the votes had come in. That event has already no doubt been con-
summated and the Empire formally proclaimed. This change will of
course in no degree affect the friendly relations between the United
States and France. A deep interest was felt by the Government and
people of this country in those events of February, 1848, which for a
while promised to assimilate the institutions of France with our own.
But it is the fundamental law of the American Eepublic, that the will
of the people constitutionally expressed is the ultimate principle of gov-
ernment, and it seems quite evident that the people of France have
with a near approach to unanimity desired the restoration of the Empire."
Mr. Everett, Sec. of State, to Mr. Rives, Dec. 17, I8b2] MSS. Inst., France.

" The first duty of a foreign minister is to maintain and practice in
behalf of his Government good faith and friendship towards the Gov-
ernment to which he is accredited. It is not easy to conceive any case
in which a minister could rightfully intervene and give aid or counte-
nance to an insurrectionary movement in derogation of the sovereign
to which he is accredited. Doubtlessly there are revolutions which de-
serve the sympathies and favor of all civilized states, but even in such
cases the representatives of foreign Governments should act by their
direction and make their protests direct and explicit, taking the respon-
sibilities of the termination of diplomatic intercourse. No such cir-
(lumstances are known to us as existing in regard to the revolution in
New Granada."

Mr. Seward, Sec. of State, to Mr. Burton, July 18, 1861 ; MSS. Inst., Colombia.

A guarantee of sovereignty to South American States is inconsistent
with the policy of the United States.

Mr. Seward, Sec. of State, to Mr. Riotte, July 7, 1862; MSS. Inst., Am. St.

" This Government has not now, it seldom has had, any special trans-
action, either commercial or political, to engage the attention of a min-
ister at Rome. Indeed, until a very late period the United States were
without any representation at that ancient and interesting capital. The
first colonists in this country were chiefly Protestants, who not merely
recognized no ecclesiastical authority of the Pope, but were very jealous
lest he might exert some ecclesiastical influence here which would be
followed by an assumption of political power unfavorable to freedom
and self-government on this continent. It was not seen that the politi-
cal power of the Catholic Church was a purely foreign atfair, constituting
an important part of the political system of the European continent.
The opening of our country as an asylum to men of all religions, as weU
as of all races, and an extension of the trade of the Union, in a short

179

J 45.] INTERVENTION. [CHAP. III.

time brought with tliem large masses of the faithful members of that
church of various birth aud derivation, and these masses are continu-
ally augmenting. Our country has not been slow to learn that wiiile
religion is with these masses, as it is with others, a matter of conscience,
an«l while the spiritual authority of the head of their church is a cardi-
nal article of their faith, which must be tolerated on the soundest prin-
cii)les of civil liberty, yet that this faith in no degree necessarily inter-
feres with the equal rights of the citizen, or affects unfavorably his
loyalty to the Republic. It is believed that ever since the tide of emi-
gration set in upon this continent the head of the Roman church and
states has freely recognized and favored the development of this prin-
ciple of political freedom on the part of the Catholics in this country,
while he has never lost an opportunity to express his satisfaction with
the growth, prosperity, and progress of the American peoi>le. It was
under these circumstances that this Government, in 1848, wisely deter-
mined that while it maintained representatives in the capitals of every
other civilized state, and even at the capitals of many semi-civilized
states which reiect the Christian religion, it was neither wise nor neces-
sary to exclude Rome from the circle of our diplomatic intercourse. Thus
far tlie new relation then established has proved pleasant and beneficent.

" Just now Rome is the seat of profound ecclesiastical and political
anxieties, which, more or less, affect all the nations of Europe. The Holy
Father claims immunity for the temporal power he exercises, as aright
incident to an ecclesiastical authority which is generally respected by
the European states.

" On the other hand, some of those states, with large masses in other
states, assert that this temporal power is without any religious sanction,
is unnecessary and pernicious. I have stated the question merelyfor the
purpose of enabling myself to give you the President's views of what
will be your duty with regard to it. That duty is to forbear altogether
from taking any part in the controversy. The -reasons for this forbear-
ance are three : First, that so far as spiritual or ecclesiastical matters
enter into the question they are beyond your province, for you are a
political representative only. Second, so far as it is a question affecting
the Koman states, it is a domestic one, and we are a foreign nation.
Third, so far as it is a political question merely, it is at the same time
jnircly an European one, aud you are an American minister, bound to
avoi.l ull entangling connection with the politics of that continent.

" This line of conduct will nevertheless allow you to express, and you
are therefore instructed to express, to His Holiness the assurances of
the best wishes of the CTOvernment aud of the people of the United
vStates for his health and happiness, and for the safety and prosperitv
and happiness of the Roman people."

Mr. Seward, S.-c. of State, to Mr. Blatchford, Sept. 27, 1862; MSS. lust., Papal
States; Dip. Corr., 1862.

180

CHAP. HI.] GENERAL RULES. [§ 45.

" This Goveiument acts directly and sincerely in its intercourse with
foreign nations, and no less directly and sincerely with New Granada
than with all others. It regards the government of each state as its
head until that government is effectually displaced by the substitution
of another. It abstains from any interference with its domestic affairs
in foreign countries, and it holds no unnecessary communication, secret
or otherwise, with revolutionary parties or factions therein. It neither
seeks to prevent social or jmlitical reforms in such countries nor lends
its aid to reforms of them rightfully of which it has neither the authority
nor the means to judge."

Mr. Seward, Sec. of State, to Mr. Burton, Oct. 25, 1862; MSS. Inst., Colombia.

" Mr. Mercier has read to me, and at my request has left with me, a
copy of an instruction under the date of the 23d of April last, which he
has received from Mr. Drouyn de I'Huys, and which relates to exciting
and interesting events in Poland that are now engaging the serious at-
tention of the principal states in Western Europe.

"Mr. Mercier has, at the same time, favored me with a copy of an
instruction relating to the same events which has been transmitted by
Mr. Drouyn de I'Huys to the embassador of France at St. Petersburg.

"We learn- from the first of these papers that the proceeding which
has thus been adopted at Paris with a view to the exercise of a moral
influence with the Emperor of Russia, has received the approbation and
concurrence of the court of Vienna and the cabinet at London, and that
the Emperor of the French, justly appreciating at one aud the same
time our historical sympathy with the Poles, and our ancient friendship
with Russia, would be gratified with a co-operation in that important
proceeding by the Government of the United States.

"Having taken the instructions of the President, I am now to com-
municate our views upon the subject, for the information of Mr. Drouyn
de I'Huys.

"This Government is profoundly and agreeably impressed with the
consideration which the Emperor has manifested towards the United
States by inviting their concurrence in a proceeding having for its ob-
ject the double interests of public order and humanity. Nor is it less
favorably impressed with the sentiments and the prudential considera-
tions which the Emperor has in so becoming a manner expressed to the
court of St. Petersburg. Tiiey are such only as appeal to the just emo-
tions and best sympathies of mankind. The enlightened and humane
character of the Emperor of Russia, so recently illustrated by the en-
franchisement of a large mass of the Russian people from inherited
bondage, and the establishment of an impartial and effective admin-
istration of justice throughout his dominions, warrant a belief that tbe
appeal will be received and responded to by him with all the favor that
is consistent with the general welfare of the great state over which he
presides with such eminent wisdom aud modei'ation.

181

A 45.] INTERVENTION. [CHAP. III.

" Notwilbstandiug, however, the favor with which we thus regard the
KUggestiou of the Emperor of the French, this Government finds an in-
surmountable dilllculty in the way of any active co-operation with the
Governments of France, Austria, and Great Britain, to which it is thus
invited.

" Founding our institutions upon the basis of the rights of man, the
builders of our llopublic came all at once to be regarded as political re-
formers, and it soon became manifest that revolutionists in every coun-
try hailed them in that character, and looked to the United States for
efl'ective sympathy, if not for active support and patronage. Our in
valuable Constitution had hardly been established when it became nec-
essary for the Government of the United States to consider to what
extent we could, with propriety, safety, and beneficence, intervene,
either by alliance or concerted action with friendly powers or otherwise,
in the political affairs of foreign states. An urgent appeal for such aid
and sympathy was made in behalf of France, and the appeal was sanc-
tioned and enforced by the treaty then existing of mutual alliance and
defense, a treaty without which it may even now be confessed, to the
honor of France, our own sovereignty and independence could not have
been so early secured. So deeply did this appeal touch the heart of the
American people that only the deference they cherished to the counsels
of the Father of our Country, who then was at the fullness of his un-
approachable moral greatness, reconciled them to the stern decision
that, in view of the location of this Kepublic, the characters, habits,
anil sentiments of its constituent parts, and especially its complex yet
unique and very popular Constitution, the American people must be
content to recommend the cause of human progress by the wisdom with
which they should exercise the powers of self-government, forbearing
at all times, and in every way, from foreign alliances, intervention, and
interference.

" It is true that Washington thought a time might come when, our
institutions being firmly consolidated and working with complete suc-
cess, we might safely and perhaps beneficially take part in the consul-
tations held by foreign states for the common advantage of the nations.
Since that peiiod occasions have frequently happened which presented
seductions to a dei)arture from what, superficially viewed, seemed a
course of isolation and indifference. It is scarcely necessary to recur
to them. One was an invitation to a congress of newly emancipated
Spanish American states ; another, an urgent appeal to aid Hungary in
a revolution aiming at the restoration of her ancient and illustrious in-
dependence ; another, the project of a joint guarantee of Cuba to Spain
in concurrence with France and Great Britain ; and more recently, an
invitation to a co operative demonstration with Spain, France, and
Great Britain in Mexico; and, later still,' suggestions by some of the
Spanish American states for a common council of the republican states
situated upon the American continent. These suggestions were suc-
182

CHAP. III.] GENERAL RULES. [§ 4"j.

cessively disallowed by the Government, and its decision was approved
in each case by the deliberate judgment of the American people. Our
policy of non-intervention, straight, absolute, and peculiar as it may
seem to other nations, has thus become a traditional one, which could
not be abandoned without the most urgent occasion, amounting to a
manifest necessity. Certainly it could not be wisely departed from at
this moment, when the existence of a local, although as we trust only
a transient disturbance, deprives the Government of the counsel of a
portion of the American x)eople, to whom so wide a departure from the
settled policy of the country must in any case be deeply interesting.

"The President will not allow himself to think for a single moment
that the Emperor of the French will see anything but respect and
friendship for himself and the people of France, with good wishes for
the preservation of peace and order, and the progress of humanity in
Europe, in the adherence of the United States on this occasion to the
policy which they have thus far pursued with safety, and not without
advantage, as they think, to the interests of mankind."

Mr. Seward, Sec. of State, to Mr. Dayton, May 11, 1863; MSS. Inst., France;
Dip. Corp., 1863.

See, further, Mr. Seward to Mr. Motley, June 20, July 14, 1863; Dip. Corr., 1863.

" So in regard to our foreign relations, the conviction has universally
obtained that the true national policy is one of self-reliance and self-
conduct in our domestic affairs, with absolute non-interference in those
of other countries. These two important ideas ai^ accepted with prac-
tical universality in the loyal States, while in the region covered by the
insurrection they are resisted only by those who have staked their all
upon the fortunes of a desperate strife.

" Under these circumstances Europe, with her attention already di-
verted from America, will no longer find provocation or encouragement
here for a policy hostile to the settlement of our controversy upon the
basis of our constitutional union. I think, moreover, that she cannot
be long in discovering that, in lieu of her x>resent partial illicit trade,
with its constant annoyances, she has only to revoke her recognition of
the insurgents as a belligerent to secure a return of peace with a resto-
ration of the commerce which prevailed before the civil war began.
True there will for a season be a difference in the materials of exchange;
but one has only to consider the immense forces of population and in-
dustry existing in tiie United States to become satisfied that whenever
peace returns, every source of national wealth now closed will soon be
made to flow even more freely under the application of labor universally
free than it did before while slavery was maintained as a part of the
industrial economy of the country.

" Apprehensions that the aggrandizement of the United States as a
commercial power can bring any practical inconvenience or danger to
European states can disturb none but visionary minds. We can never
be dangerous unless we are armed. We were never so great, and yet

183

^ 45.] INTERVENTION. [CHAP. III.

never 80 completely unarmed, as we were when this civil war broke out.
We were never before so shorn of national prestige as we are now
thron^'li the operation of domestic faction; yet we have never before
been so slionj;ly armed as we are at this moment upon land and water.
If we have ever been aggressive, it was the interest of slavery that made
us belligerent abroad, as it was the same interest that has now afflicted
ourselves with civil war. We can be only a peaceful nation if we are
left to enjoy our independence in the way that our destiny leads us.
We can only become a disturber of the world's peace by being called
into the world to defend that independence."

Mr. Seward, Sec. of State, to Mr. Adams. Nov. 30, 1863; MSS. lust. Gr. Brit. ;
Dip. Con-., 1863.

"Within the last three years it has seen an attempt at revolution in
the ancient Kingdom of Poland, a successful revolution in what was
New Grauadn,butnow is Colombia, a war between France and Mexico,
a civil war in Venezuela, a war between three allied Spanish-American
Republics and Salvador, and a war between Colombia and Ecuador.
It now sees a probability of a war between Denmark and Germany, In
regard to such of these conflicts as have actually occurred, the United
States have pursued the same policy, attended by the same measure of
reserve, that they have thus far followed, in regard to the civil war in
Santo Domingo. It is by this policy that the United States equally
avoid throwing themselves across the way of human progress, or lend-
ing encouragement to factious revolutions. Pursuing this course, the
United States leave to the government and people of every foreign
state the exclusive settlement of their own affairs and the exclusive
enjoyment of their own institutions. Whatever may be thought by
other nations of this policy, it seems to the undersigned to be in strict
conformity with those prudential principles of international law — that
nations are equal in their independence and sovereignty, and that each
individual state is bound to do unto all other states just what it reason-
ably expects those states to do unto itself."

Mr. Seward, Sec. of State, to Mr. Tassara, Feb. 3, 1864 ; MSS. Notes Spain.

As t« keeping aloof from foreign interests, see 9 .John Adams's Works, 108, 109,
1 18. 1-29, 136, 20-2, 277, 450, r.79, 277-8.

As to non-intervention generally see 3 John Adams's Works, 316 ; 7 id., 151 -,8 id.,
9, 178; (and see also discussions in 10.; N.Am. Rev., 476, October, 1866).

As to intervention in respect to specific foreign states, see infra, ^ 5tiff.

As to special mission in reference to claims of Costa Rica on Nicaragua, see
Mr. Cass, Sec. of State, to Mr. Jones, July 30, 1857 ; MSS. Inst. Special Mis-
sions.

As to non-intervention in South America, see supra, ^6 57.^.

The subject of territoiial sovereignty is discussed unpra, ^ I ff.

"The Pre.sident wishes in no manner to dictate or make any authora-
tive utterance to either Peru or Chili as to the merits of the controversy
existing Ix'f.v.-en tliose republics, as to what indemnity should be asked
184

CHAP. III.] GENERAL RULES. [§ 45.

or given, as to a change of boundaries, or as to the personnel of the
Government of Peru. The President recognizes Peru and Chili to be
independent republics, to which he has no right or inclination to dictate.
" Were the United States to assjame an attitude of dictation towards
the South American republics, even for the purpose of preventing war,
the greatest of evils, or to preserve the autonomy of nations, it must be
prepared by army and navy to enforce its mandate, and to this end tax
our people for the exclusive benefit of foreign nations.

"The President's policy with the South American republics and other
foreign nations is that expressed in the immortal address of Washing-
ton, with which you are entirely familiar. What the President does
seek to do, is to extend the kindly offices of the United States impar-
tially to both Peru and Chili, whose hostile attitude to each other he
seriously laments; and he considers himself fortunate in having one so
competent as yourself to bring the powers of reason and persuasion to
bear in seeking the termination of the unhappy controversy ; and you
will consider as revoked that portion of your original instruction which
directs you on the contingency therein stated as follows:

"You will say to the Chilian Government that the President considers
such a proceeding as an intentional and unwarranted offense, and that
you will communicate such an avowal to the Government of the United
States with the assurance that it will be regarded by the Government
as an act of such unfriendly import as to require the immediate suspen-
sion of all diplomatic intercourse. You will imform me immediately of
the happening of such a contingency, and instructions will be sent you.

"Believing that a prolific cause of contention between nations is an
irritability which is too readily offended, the President prefers that he
shall himself determine after report has been made to him whether
there is or is not cause for offense.

"It is also the President's wish that you do not visit (although indi-
cated in your original instruction you should do so), as the envoy of
this government, the Atlantic republics after leaving Chili.

"The United States is at peace with all the nations of the earth, and
the President wishes hereafter to determine whether it will conduce to
that general peace, which he would cherish and i>romote, for this gov-
ernment to enter into negotiations and consultation for the promotion
of peace with selected friendly' nationalities without extending a like
confidence to other peoples with whom the United States is on equally
friendly terms.

" If such partial confidence would create jealousy and ill-will, peace,
the object sought by such consultation, would not be promoted."

Mr. Freliughuysen, Sec. of State, to Mr, Trescot, Jan. 9. 1882; MSS. Inst.,
Chili ; For. Rel., 1882 ; Doc. at( ached to Pres. Mess, of Jan. 26 and 27, 1882.

Mr. Senior, in an article in 77 Edinburgh Review, 334 (1843)| distin-
guishes between intervention by one or more states for the purpose of
maintaining the balance of power, and intervention to interfere with the
political affairs of another country : " The first is the privilege of the weak

185

iji 45.') INTERVENTION. [CHAP. III.

apaiiist flic sfron;; ; tlio socoiid, tliat of the strong against the weak.
The eircunistaiu'cs thai give rise to the first are tolerably definite and
nnist always be evident. Those which create the second are incapable
of definition, and generally incapable of proof. If we examine the state-
ments ol evils snttered or apprehended from the domestic affairs of in-
dependent nations, on which the most remarkable modern interventions
have been fonnded, we shall find them in general too vague to be sus-
ceptible of refutation or too frivolous to deserve it." In this article the
general policy of intervention is discussed with much care. But the
position that intervention to ])reserve the balance of power is proper
is now generally abandoned by publicists.

It is further stated by Mr. Senior (77 Edin. Bev., 358) that the British
Government in refusing to accede to the declaration of the Holj' Alliance
in 1818, "denied that any general right of interference against revolu-
tionary movements in independent states was sanctioned by the law of
nations, or could be made prospectively' the basis of an alliance. Ad-
mitting the right of a state to interfere where its own immediate secu-
rity or essential interests were seriously endangered by the internal
transactions of another state, they declared this right to be an excep-
tion to general princii)les of the greatest value; to be capable of arising
only out of the circumstances of each special case ; to be justified only
by the strongest necessity, and to be limited and regulated thereby ; and
to be insusceptible of being so far reduced to rule as to be incorporated
into the ordinary diplomacy of states, or into the institutes of the law
of nations."

See British Circular, Jan. 19, 1821 ; State Papers, 1820-'21, p. 1160.

" The main difficulty connected with intervention is the following: It
may be admitted that there are i)ossibilities of tyrannical usage, barbar-
ous piactiees, or persistent and hopeless anarchy, out of which the friendly
aid of a generous, impartial, and truly disinterested by-stander, may be
the only way to a deliverance. But two cautions have to be observed:
first, it has to be i)rovided that the aid is accorded at a time and under
circumstances which do not in anyway prejudge the issue of a struggle
yet undetermined, and which ought, in the interests of the state con-
cerned, to be decided by the real and internal and not by the factitious
and external Hements of victory. The importance of this consideration
was signally illustrated in the late insurrection of the Southern States
of the American Union, and in the controversy that long hung round
the questions whether England had chosen the proper moment for ac-
cording to the Southern Confederacy the rights of a belligerent state,
and wliat was the meaning of recognition for belligerent purposes."
Amos, Remedips for War (X. Y., ed. 1880). 61.

"A second caution in respect to intervention is that, admitting the
propriety and duty of intervention in certain extreme crises, it is al-
ways <)j)cn to a state, influential, designing, and unscrupulous, to foster
in ajiother state, subject to its moral control, the very condition of things
whicli will, sooner or later, bring about a fit opportunity for its own
overt interference. Whether Russia was guilty of this conduct in the
case «>f the late Servian war antl the Herzegovinian insurrection, is of
less importance here than the fact that she was constantly reproached
with it. It is a danger which is almost inherent in the doctrine of a
right of intervention in certain emergencies."
rbid.

186

criAP. III.] PROTECTION: INFORMATION. [§46,47.

I. EXCEPTIONS.
(1) EELIEF and protection OF CITIZENS ABKOAp,

§ 46.

Illustrations of interventions of this class will be fouijd in subsequent
sections. {Infra §§ 189, 215.) This exception applies not merely to
citizens of the United States, but to persons domiciled in the United
States.

The rule is that wherever a person of either of these classes claims
when abroad the protection of the Department, or redress in case of in-
jury, the Secretary, on alMdavits showing the nature of the danger or
wrong, will instruct the minister, in the country from which the danger
or wrong proceeds', to ask explanation, and in case of the danger or
wrong being proved, to insist on relief or redress. (See infra., §§ 189,
213.)

(2) Agencies to obtain information as to pending insurrec-
tion.

§ 47.

In 1816, when the acknowledgment of the independence of the South
American colonies was under consideration, Mr. Monroe sent three com-
missioners, Csesar A. Rodney, Theoderick Bland, and John Graham, in
a ship-of-war, to visit the several colonies, inquire into the condition ot
things in respect to the probability of endurance of successful hostili-
ties, and then report. These commissioners were not nominated to the
Senate, though that body was in session when they sailed, but went ex-
clusively on the President's nomination. Their expenses were not paid
out of the contingent fund, but were met by a vsubsequent appropriation
of $30,000 by Congress.

See 3 Schouler's Hist. U. S.,28^; President Monroe's First Annual Message,
1817; Mr. Adams, Sec. of State, to Mr. Hyde de Neuville, July 27, 1818;
MSS. For. Leg. Notes. As to appointment and pay of such agents, see
infra, $ 78.

" During the late conflict between Austria and Hungary, there seemed
to be a prospect that the latter might become an inde])endent nation.
However faint that prospect at the time appeared, I thought it my duty,
in accordance with the general sentiment of the Americ*;in people, who
deeply sympathized with the Magyar patriots, to stand prepared, upon
the contingency of the establishment by her of a permanent govern-
ment, to be the first to welcome independent Hungary into the family
of nations. For this purpose, I invested an agent, then in Europe, with
power to declare our willingness promptly to recognize her independ-
ence in the event of her abiUty to sustain it. The powerful intervention

187

J 47.] INTERVENTION. [CHAP. III.

of Russia in tbe coutest extiui,'uisbed the liopcs vf the struggling Mag-
yars. The Uniled States did DOt, at any time, interfere in the coutest;
but the feeliugs of the nation were strongly eulisted in the cause, and
by the sulferiugs of a brave people, who had made a gallant though
unsuccessful effort to be free."

President Taylor's First Animal Message, 1849. The instructions to Mr. Maun
are given in part infra 6 70. (See comments in 1 Lawrence Com. sur Droit
Int., 201.)

Mr. Abdy (Abdy's Kent, 1878, 92), after speaking with high approval
of the conduct of the United States in delaying recognition of the in-
dependence of the South American states, and of Texas, until such in
dependence was practically established, quotes the passage from Presi-
dent Taylor's tirst annual message above cited, and then proceeds to
say :

"Is it necessary to criticise a document in which two faults are at all
events visible, the delegacy of sovereign powers to an agent, and its
victory of sympathy and sentiment over reason and law. What would
have been thought of an English minister who should have directed an
agent in the Confederate States to declare the willingness of England
promptly to recognize their independence, in the event of their ability
to maintain it?"

" The undersigned. Secretary of State of the United States, had the
honor to receive some time ago the note of Mr. Hiilsemanu, charg6
d'aflaires of His Majesty the Emperor of Austria, of the 30th September.
Causes not arising from any want of personal regard for Mr. Hiilse-
manu or of proper respect for his Government have delayed an answer
until the present moment. Having submitted Mr. Hiilsemann's letter
to the President, the undersigned is now directed by him to return the
following reply :

" The objects of Mr. Hiilsemann's note are, first, to protest, by order
of his Government, against the steps taken by the late President of the
United States to ascertain the progress and probable result of the revo-
lutionary movements in Hungary; and, secondly, to complain of some
expres.sions in the instructions of the late Secretary of State to Mr. A.
Dudley Mann, a confidential agent of the United States, as communi-
cated by President Taylor to the Senate on the 28th of March last.

"The principal ground of protest is founded on the idea or in the
allegation that the Government of the United States, by the mission of
Mr. .Mann and his instructions, has interfered in the domestic affairs of
Austria in a manner unjust or disrespectful toward that power. The
Prcsid, .fit's message was a communication made by him to the Senate,
tran.smitting a correspondence between the Executive Government and
a confidential agent of its own. This would seem to be itself a domestic
tran.saction— a mere instance of intercourse between the President and
the Senate in the manner which is usual and indispensable in commu-
nications between the different branches of the Government. It was
not addressed either to Austria or Hungary, nor was it any public mani-
188

CHAP. III.] AGENCIES FOR INFORMATION. [§ 47.

festo to which auy foreign state was called on to reply. It was an ac-
count of its transactions communicated by the Executive Government to
the Senate at the request of that body — made public, indeed, but made
public only because such is the common and usual course of proceed-
ing — and it may be regarded as somewhat strange, therefore, that the
Austrian cabinet did not i^erceive that, by the instructions given to Mr.
Hiilsemann, it was itself interfering with the domestic concerns of a for-
eign state, the very thing which is the ground of its complaint against
the United States. (See infra, § 79.)

" This Department has on former occasions informed the ministers of
foreign powers that a communication from the President to either house
of Congress is regarded as a domestic communication, of which, ordi-
narily, no foreign state has cognizance, and in more recent instances
the great inconvenience of making such communications subjects of
diplomatic correspondence and discussion has been fully shown. If it
had been the pleasure of His Majesty the Emperor of Austria during
the struggles in Hungary to have admonished the provisional Govern
ment or the people of that country against involving themselves in dis-
aster by following the evil and dangerous example of the United States
of America in making efforts for the establishment of independent gov-
ernments, such an admonition from that sovereign to his Hungarian
subjects would not have originated here a diplomatic correspondence.
The President might, perhaps, on this ground have declined to direct
any particular reply to Mr. Hiilsemann's note ; but out of proper re-
spect for the Austrian Government it has been thought better to an-
swer that note at length, and the more especially as the occasion is not
unfavorable for the exi)ression of the general sentiments of the Govern-
ment of the United States upon the topics which that note discusses.
" A leading subject in Mr. Hiilsemann's note is that of the correspond-
ence between Mr. Htilsemann and the predecessor of the undersigned,
in which Mr. Clayton, by direction of the President, informed Mr.
Hiilsemann ' that Mr. Mann's mission had no other object in view than
to obtain reliable information as to the true state of affairs in Hungary
by personal observation.' Mr. Hiilsemann remarks that ' this explana-
tion can hardly be admitted, for it says very little as to the cause of the
anxiety which was felt to ascertain the chances of the revolutionists.'
As this, however, is the onfy^ purpose which can, with any appearance
of truth, be attributed to the agency, as nothing whatever is alleged by
Mr. Hiilsemann to have been either done or said by the agent incon-
sistent with such an object, the undersigned conceives that Mr. Clay-
ton's explanation ought to be deemed not only admissible, but quite
satisfactory. Mr. Hiilsemann states in the course of his note that his
instructions to address his present communication to Mr. Clayton
reached Washington about the time of the lamented death of the late

189

§ 47.] INTERVENTION. [CHAP. III.

President, aud that he delayed from a sense of propriety the execution
of his task until the new Administration should be fully organized, ' a
delay which he now rejoices at, as it has given him the opportunity of
ascertaining from the new President himself, on the occasion of the re-
ception of the diplomatic corps, that the fundamental policy of the
United States, so frequently proclaimed, would guide the relations of
the American (iovernraent with other powers.' Mr. Hiilsemanu also
observes that it is in his power to assure the undersigned - that the
Imperial Government is disposed to cultivate relations of friendship
aud good understanding with the United States.' The President re-
ceives this assurance of the disposition of the Imperial Government
with great satisfaction, and, in consideration of the friendly relations of
the two Governments thus mutually recognized, and of the peculiar
nature of the incidents by which their good understanding is supposed
by 3Ir. Hulsemann to have been, for a moment, disturbed or endan-
gered, the President regrets that Mr. Hiilsemann did not feel himself at
liberty wholly to fotbear from the execution of instructions, which were
of course transmitted from Vienna without any foresight of the state of
things under which they would reach Washington. If Mr. Hiilsemann
saw in the address of the President to the diplomatic corps, satisfactory
pledges of the sentiments and the policy of this Government, in regard
to neutral rights and neutral duties, it might, perhaps, have been better
not to bring on a discussion of past transactions. But the undersigned
readily admits that this was a question fit only for the consideration
and decision of Mr. Hiilsemann himself; and although the President
does not see that any good purpose can be answered by reopening the
inquiry into the propriety of the steps taken by President Taylor, to
ascertain the probable issue of the late civil war in Hungary, justice to
his memory requires the undersigned briefly to restate the history of
those steps, and to show their consistency with the neutral policy which
has invariably guided the Government of the United States in its foreign
relations, as well as with the established and well -settled principles of
national intercourse, and the doctrines of public law.

" The undersigned will first observe that the President is persuaded
His Majesty the Emperor of Austria does not think that the Govern-
ment of the United States ought to view, with unconcern, the extraor-
dinary events which have occurred, not oflly in his dominions, but in
many other parts of Europe, since February, 1848. The Government
and i)eople of the United States, like other intelligent Governments and
communities, take a lively interest in the movements and the events of
this remarkable age, in whatever part of the world they may be ex.
hibited. But the interest taken by the United States in those events
has not proceeded from any disposition to depart from that neutrality
toward foreign powers which is among the deepest principles and the
most cherislred traditions of the political history of the Union. It has
been the necessary effect of the unexawpled character of the events
190

CHAP. III.] Webster's hulsemann note. [§ 47.

themselves, which could not fail to arrest the attention of the contem-
porary world, as they will doubtless fill a memorable page in history.
But the undersigned goes further, and freely admits that in proportion
as these extraordinary events appeared to have their origin in those
great ideas of responsible and popular governments, on which the
American constitutions themselves are wholly founded, they could not
but command the warm sympathy of the people of this country.

" Well known circumstances in their history, indeed their whole his-
tory, have made them the representatives of purely popular principles of
government. In this light they now stand before the world. They
could not, if they would, conceal their character, their condition, or their
destiny. They could not, if they so desired, shut out from the view of
mankind the causes which have placed them, in so short a national
career, in the station which they now hold among the civilized states
of the world. They could not, if they desired it, suppress either the
thoughts or the hopes which arise in men's minds, in other countries,
from contemplating their successful example of free government. That
very intelligent and distinguished personage, the Emperor Joseph the
Second, was among the first to discern this necessary consequence of
the American Eevolution on the sentiments and opinions of the people
of Europe. In a letter to his minister in The Netherlands in 1787, he
observes that ' it is remarkable that France, by the assistance which
she afforded to the Americans, gave birth to reflections on freedom.'
This fact, which the sagacity of that monarch perceived at so early a
day, is now known and admitted by intelligent powers all over the
world. True, indeed, it is, that the prevalence on the other continent
of sentiments favorable to republican liberty, is the result of the reaction
of America upon Europe ; and the source and center of this reaction has
doubtless been, and now is, in these United States. The position thus
belonging to the United States is a fact as inseparable from their his
tory, their constitutional organization, and their character, as the oppo-
site position of the powers composing the European alliance is from the
liistory and constitutional organization of the Government of those
powers. The sovereigns who form that alliance have not unfrequently
felt it their right to interfere with the political movements of foreign
states ; and have, in their manifestoes and declarations, denounced the
popular ideas of the age in terms so comprehensive as of necessity to
include the United States, and their forms of government. It is well
known that one of the leading principles announced by the allied sov-
ereigns, after the restoration of the Bourbons, is, that all popular or
constitutional rights are holden no otherwise than as grants and in-
dulgences from crowned heads. 'Useful and necessary changes in
legislation and administration,' says the Laybach Circular of May, 1841,
'oujiht only to emanate from the freewill and intelligent conviction
of those whom God has rendered responsible for power ; all that devi-
ates from this line necessarily leads to disorder, commotions, and evils

191

^ 47] INTERVENTION. [CHAP. III.

i'ar luoie insulieiable than those which they pretend to remedy.' And
liis late Austrian Majesty, Francis I, is reported to have declared in an
addivss to llic TIuM;:;ariau Diet, in 1820, that 'the whole world had
bcfoine toolisli, and, leaving their ancient laws, was in search of im-
a""iiiary constitutions.' These declarations amount to nothing less than
a denial of the lawfulness of the origin of the Government of the United
States, since it is certain that that Government was established in con-
sequence of a change which did not proceed from thrones, or the per-
mission of crowned heads. But the Government of the United States
heard these denunciations of its fundamental principles without re.
monstrance, or the disturbance of its equanimity. This was thirty years
ago.

"The power of this Eeimblic, at the present moment, is spread over a
region, one of the richest and most fertile on the globe, and of an extent
in comparison with which the possessions of the house of Hapsburg
are but as a patch on the earth's surface. Its population, already
35.000,000, will exceed that of the Austrian Empire within the period
during which it may be hoped that M. Hiilsemann may yet remain in
the honorable discharge of his duties to his Government. Its naviga-
tion and commerce are hardly exceeded by the oldest and most com-
mercial nations; its maritime means and its maritime power may be
seen by Austria herself, in all seas where she has ports, as well as it
may be seen, also, in all other quarters of the globe. Life, liberty, prop-
erty, and all personal rights are amply secured to all citizens, and pro-
tected by just and stable laws; and credit, public and private, ie as
well established as in any Government of continental Europe. And the
country, in all its interests and concerns, partakes most largely in all
the improvements and progress which distinguish the age. Certainly,
the United States may be pardoned, even by those who profess adher-
ence to the principles of absolute Governments, if they entertain an
ardent aft'ection for those popular forms of political organization which
have so rapi<lly advanced their own prosperity and happiness, and en-
abled them, in so short a period, to bring their country and the hemi-
sphere to wliich it belongs, to the notice and respectful regard, not to say
the admiration, of the civilized world. Nevertheless, the United States
have abstained, at all times, from acts of interference with the political
changes of Europe. They cannot, however, fail to cherish always a
lively interest in the fortunes of nations struggling for institutions like
their own. I'.ut this sympathy, so for from being necessarily a hostile
feeling toward any of the parties to these great national struggles, is
quite consistent with amicable relations with them all. The Hungarian
I)eople are threi^ or four times as numerous as the inhabitants of these
United States were when the American Kevolution broke out. They
possess, in a distinct language, and in other respects, important ele-
ments of a si'piuiite nationality, which the Anglo Saxon race in this
eountry did not jmssess; and if the Unit«-d States wish success to coun-
192

CHAP. III.] Webster's hulsemann note. [§ 47.

tries contending for popular constitutioius and national independence,
it is onlj" because they regard such constitutions and such national in-
dependence, not as imaginary, but as real blessings. They claim no
right, however, to tiike part in the struggles of foreign powers in order
to promote these ends. It is only in defense of his own Government,
and its principles and character, that the undersigned has now expressed
himself on this subject. But when the United States behold the peojjle
of foreign countries without any such interference, spontaneously mov-
ing toward the adoption of institutions like their own, it surely cannot
be expected of them to remain wholly indifferent spectators.

" In regard to the recent very important occurrences in the Austrian
Empire, the undersigned freely admits the difficulty which exists in this
country, and is alluded to by Mr. Hiilsemaun, of obtaining accurate
information. But this difficulty is by no means to the ascribed to what
Mr. Hiilsemaun calls — with little justice, as it seems to the undersigned —
'the mendacious rumors propagated by the American press.' For
information on this subject, and others of the same kind, the American
press is, of necessity, almost wholly dependent upon that of Europe;
and if ' mendacious rumors ' respecting Austrian and Hungarian affairs
have been anywhere propagated, that propagation of falsehoods has
been most prolific on the European continent, and in countries immedi-
ately bordering on the Austrian Empire. But, wherever these errors
may have originated, they certainly justified the late President in seeking
true information through authentic channels. His attention was, first,
particularly drawn to the state of things in Hungary, by the correspond-
ence of Mr. Stiles, charge d'affaires of the United States at Vienna. In
the autumn of 1848, an ai^plication was made to this gentleman, on be-
half of Mr. Kossuth, formerly minister of finance for the Kingdom of
Hungary by Imperial appointment, but at the time the application was
made chief of the revolutionary Government. The object of this appli-
cation was to obtain the good offices of Mr. Stiles with the Imperial
Government, with a view to the suspension of hostilities. This appli-
cation became the subject of a conference between Prince Schwarzen-
berg, the imperial minister for foreign affairs, and Mr. Stiles. The
prince commended the considerateuess and j^ropriety with which Mr.
Stiles had acted ; and, so far from disapproving his interference, advised
him, in case he received a further communication from the revolution-
ary Government in Hungary, to have an interview with Prince Win-
dischgratz, who was charged by the Emperor with the proceedings
determined on in relation to that Kingdom. A week after these occur-
rences, Mr. Stiles received, through a secret channel, a communication
signed by L. Kossuth, president of the committee of defense, and coun-
tersigned by Francis Pulsky, secretary of state. On the receipt of this
communication, Mr. Stiles had an interview with Prince Windischgratz,
'who received him with the utmost kindness, and thanked him for his
efforts toward reconciling the existing difficulties.' Such were the iu-
S, Mis, 102— VOL. I 13 193

^^ 47.] INTERVENTION. [CHAP. III.

cidcMits whicli first drew the attention of the Government of the United
States particularly to the affairs of Hungary and the conduct of Mr.
Stiles, though acting without instructions in a matter of much delicacy,
having been viewed with satisfaction by the Imperial Government, was
approved by that of the United States.

"In the course of the year 1848 and in the early part of 1849, a consid-
eral)le number of Hungarians came to the United States. Among them
were individuals representing themselves to be in the confidence of the
revolutionary government, and by these persons the President was
strongly urged to recognize the existence of that government. In these
applications, and in the manner in which they were viewed by the Presi-
dent, there was nothing unusual; still less was there anj'thing unau-
thorized by the law of nations. It is the right of every independent
state to enter into friendly relations with every other independent
state. Of course, questions of prudence naturally arise in reference
to new states, brought by successful revolutions into the family of na-
tions; but it is not to be required of neutral powers that they should
await the recognition of the new government by the parent state. No
principle of public law has been more frequently acted upon, within the
last thirty years, by the great powers of the world than this. Within
that period eight or ten new stales have CvStablished independent gov-
ernments within the limits of the colonial dominions of Spain on this
coiitineut; and in Europe the same thing has been done by Belgium
and Greece. The existence of all these governments was recognized
by some of the leading ])owers of Europe, as well as by the United
States, before it w;is acknowledged by the states from which they had
separated themselves, li, therefore, the United States had gone so far
as formally to acknowledge the independence of Hungary, although, as
the result has proved, it would have been a precipitate step, and one
from which no benefit would have resulted to either party, it would
not, nevertheless, have been an act against the law of nations, provided
they took no part in her contest with Austria.' But the United States
did no snob thing. Not only did they not yield to Hungary any actual
countenance or succor; not only did they not show their ships of war
in the Adriatic with any meuaciug or hostile aspect, but they studiously
abstained from everything which had not been done in other cases in
times past, an<l contented themselves with instituting an inquiry into
the trutli and reality of alleged political occurrences. Mr. Hiilsemann
incorrectly states, unintentionally certainly, the nature of the mission
of this agent, when he says that ' a United States agent had been dis-
patched to Vienna witii orders to watch for a favorable moment to recog-
nize the Hungarian republic, and to conclude a treaty of commerce with
the same.' This, indeed, would have been a lawful object, but Mr.
Mann's errand was. in the first instance, purely one of inquiry. He had
no power to act, unless he had first come to the conviction that a firm
and stable Hungarian government existed. ' The principal object the
194

CHAP. III.] Webster's hulsemann note. [§ 47.

President has in view,' according to his instructions, ' is to obtain minute
and reliable iulbrmatiou in regard to Hungary in connection with the
affairs of adjoining countries, the probable issue of the present revolu-
tionary movements, and the chances we may have of forming commercial
arrangements with that power favorable to the United States.' Again,
in the same paper, it is said : ' The object of the President is to obtain
information in regard to Hungary, and her resources and prospects,
with a view to an early recognition of her independence and the forma-
tion of commercial relations with her.' It was only in the event that
the new government should appear, in the opinion of the agent, to be
firm and stable, that the President proposed to recommend its recogni-
tion.

" Mr. Hiilsemann, in qualifying these steps of President Taylor with
the epithet of 'hostile,' seems to take for granted that the inquiry
could, in the expectation of the President, have but one result, and
that favorable to Hungary. If this were so, it would not change the
case. But the American Government sought for nothing but truth ; it
desired to learn the facts through a reliable channel. It so happened, in
the chances and vicissitudes of human affairs, that the result was ad-
verse to the Hungafian revolution. The American agent, as was
stated in his instructions to be not unlikely, found the condition of
Hungarian affairs less prosperous than it had been, or had been be-
lieved to be. He did not enter Hungary, nor hold any direct commu-
nication with her revolutionary leaders. He reported against the recog-
nition of her independence, because he found she had been unable to set
up a firm and stable government. He carefully forbore, as his instruc-
tions required, to give publicity to his mission, and the undersigned
supposes that the Austrian Government first learned its existence from
the communications of the President to the Senate.

" Mr. Hiilsemann will observe from this statement that Mr. Mann's mis-
sion was wholly unobjectionable, and strictly within the rule of the law
of nations, and the duty of the United States as a neutral power. He
will accordingly feel how little foundation there is for his remark,
that ^ those who did not hesitate to assume the responsibility of send-
ing Mr. Dudley Mann on such an errand, should, independent of con-
siderations of propriety, have borne in mind that they were exposing
their emissary to be treated as a spy.' A spy is a person sent by one
belligerent to gain secret information of the forces and defenses of the
other, to be used for hostile purposes. According to practice, he may
use deception, under the penalty of being lawfully hanged if detected.
To give this odious name and character to a confidential agent of a neu-
tral power, bearing the commission of his country, and sent for a pur-
pose fully warranted by the law of nations, is not only to abuse language,
but also to confound all just ideas, and to announce the wildest and
most extravagant notions, such as certainlj^ were not to have been
pxpected in a grave diplomatic paper ; and the President directs the

1U§

iS 47.] INTERVENTION. [CHAP. III.

uiulersigned to say to Mr. Hulseiuaun tbat the American Government
would regard such an imputation upon it by the cabinet of Austria, as
that it employs spies, and that in a quarrel none of its own, as distinctly
offensive, if it did not presume, as it is willing to presume, that the word
used in the oiij^inal German was not of equivalent meaning with 'spy'
in the English language, or that in some other way the employment of
such an opprobrious terra may be explained. Had the Imperial Gov-
ernment of Austria subjected Mr. Mann to the treatment of a spy, it
would have placed itself without the pale of civilization, and the cabi-
net of Vienna may be assured that if it had carried, or attempted to
carry, any such lawless purpose into effect in the case of an authorized
agent of this Government the spirit of the people of this country would
have demanded immediate hostilities to be waged by the utmost exer-
tion of the power of the Republic — military and naval.

"Mr. niilsemann proceeds to remark that 'this extremely painful in-
cident, therefore, might have been passed over without any written
evidence being left on our part in the archives of the United States had
not General Taylor thought proper to revive the whole subject by com-
municating to the Senate, in his message of the 18th [28th] of last March,
the instructions with which Mr. Mann had beeq furnished on the occa-
sion of his mission to Vienna. The publicity which has been given to
that document has placed the Imperial Government under the necessity
of entering a formal protest, through its oflScial representative, against
the proceedings of tbe American Government lest that Government
should construe our silence into approbation, or toleration even, of the
principles which appear to have guided its action and the means it has
adopted.' The undersigned reasserts to Mr. Hiilsemann and to the
cabinet of Vienna, and in the presence of the world, that the steps
taken by President Taylor, now protested against by the Austrian
Government, were warranted by the law of nations and agreeable to
the usages of civilized states. With respect to the communication of
Mr. Mann's instructions to the Senate, and the language in which they
are couched, it has already been said— and Mr. Hiilsemann must feel
the justice of the remark — that these are domestic affairs, in reference
to which the Government of the United States cannot admit the slight-
est responsibility to the Government of His Imperial Majesty. No state
deserving tlie appellation of independent can permit the language in
which it may instruct its own officers in the discharge of their duties to
itself to be called in question under any pretext by a foreign power;
but even if this were not so, Mr. Hiilsemann is in an error in stating
that the Austrian Government is called an 'iron rule' in Mr. Mann's
instructions. That phra.se is not found ii. the paper, and in resi)ect to
the honorary epithet bestowed in :\Ir. Mann's instructions on the late
chief of the revolutionary government of Hungary Mr. Hulsemann
will bear in mind that the Government of the United States cannot
justly be expected, in a confidential communication to its own agent, to
196

CHAP. III.] Webster's hulsemann note. [§ 47.

withhold from an individual an epithet of distinction of which a great
part of the world thinks him worthy merely on the ground that his own
Government regards him as a rebel. At an early stage of the American
Eevolution, while Washington was considered by the English Govern
ment as a rebel chief, he was regarded on the continent of Europe as an
illustrious hero ; but the uudersigned will take the liberty of bringing
the cabinet of Vienna into the presence of its own predecessors, and of
citing for its consideration the conduct of the imperial Government
itself. In the year 1777 the war of the American Kevolution wi^e raging
all over these United States. England was prosecuting that war with
a most resolnto determination, and by the exertion of all her military
means to the fullest extent. Germany was at that time at peace with
England, and yet an agent of that Congress, which was looked upon by
England in no other light than that of a body in open rebellion, was not
only received with great respect by the embassador of the Emj^ress
Queen at Paris, and by the minister of the Grand Duke of Tuscany,
who afterwards mounted the imperial throne, but resided in Vienna for
a considerable time — not, indeed, officially acknowledged, but treated
with courtesy and respect, and the Emperor suffered himself to be per-
suaded by that agent to exert himself to prevent the German powers
from furnishing troops to England to enable her to suppress the rebell-
ion in America. Isl^either Mr. Hiilsemann nor the cabinet of Vienna, it
is presumed, will undertake to say that anything said or done by this
Government in regard to the recent war between Austria and Hungary
is not borne out, and much more than borne out, by this example of the
imperial court. It is believed that the Emperor, Joseph the Second,
habitually spoke in terms of respect and admiration of the character of
Washington, as he is known to have done of that of Franklin, and he
deemed it no infraction of neutrality to inform himself of the progress
of the Eevolutionary struggle in America, nor to express his deep sense
of the merits and the talents of those illustrious men who were then
leading their country to independence and renown. The undersigned
may add that in 1781 the courts of Eussia and Austria proposed a diplo-
matic congress of the belligerent powers, to which the commissioners
of the United States should be admitted.

" Mr. Hiilsemann thinks that in Mr. Mann's instructions improper
expressions are introduced in regard to Eussia, but the undersigned
has no reason to suppose that Eussia herself is of that opinion. The
only observation made in those instructions about Eussia is that she
' has chosen to assume an attitude of interference, and her immense
prei)aratious for invading and reducing the Hungarians to the rule of
Austria, from which they desire to be released, gave so serious a char-
acter to the contest as to awaken the most painful solicitude in the
minds of Americans.' The undersigned cannot but consider the Aus-
trian cabinet as unnecessarily susceptible in looking upon language like

197

^47.] INTERVENTION. [cHAP. III.

this as a ' bo:st ile (k'liioDStration.' If we remember that it was addressed
by the Govern nicnt to its own iigeut, and has received publicity ouly
throuf^h a comnumication from oue department of the American Gov-
ernment to another, the language quoted must be deemed moderate and
iuofiensive. The comity of nations would hardly forbid its being ad-
dressed to the two imperial powers themselves. It is scarcely neces-
sary for the undersigned to say that the relations of the United States
with Eussia have always been of the most friendly kind, and have never
been deemed by either party to require any compromise of their jjecu-
liar views upon subjects of domestic or foreign polity or the true origin
of Governments. At any rate, the fact that Austria in her contest
with Hungary had an intimate and faithful ally in Russia cannot alter
the real nature of the question between Austria and Hungary, nor in
any way affect the neutral rights and duties of the Government of the
United States or the justifiable sympathies of the American people. It
is, indeed, easy to conceive that favor toward struggling Hungary
would be not diminished, but increased, when it was seen that the arm
of Austria was strengthened and upheld by a power whose assistance
threatened to be, and which in the end proved to be, overwhelmingly
destructive of all her hopes.

"Toward the conclusion of his note Mr. Hiilsemann remarks that 'if
the Government of the United States were to think it proper to take an
indirect part in the political movements of Euroj^e, American policy
would be exposed to acts of retaliation and to certain inconveniences
which would not fail to affect the commerce and industry of the two
hemi.spheres.' As to this possible fortune — this hypothetical retalia-
tion — the Government and people of the United States are quite will-
ing to take their chances and abide their destiny. Taking neither a
direct nor an indirect part in the domestic or intestine movements of
Europe, they have no fear of events of the nature alluded to by Mr.
Hiilsemann. It would be idle now to discuss with Mr. Hiilsemann those
acts of retaliation which he imagines may possibly take place at some
indefinite time hereafter. Those questions will be discussed when they
arise, and Mr. Hiilsemann and the cabinet at Vienna may rest assured
that, in the mean time, while performing with strict and exact fidelity
all their neutral duties, nothing will deter either the Government or the
people of the United States from exercising, at their own discretion, the
rights belonging to them as an independent nation, and of forming and
expressing their own opinions, freely and at all times, upon the great
political events which may transpire among the civilized nations of the
earth. Their own institutions stand upon the broadest principles of
civil liberty, and believing those principles and the fundamental laws
in which they are embodied to be eminently favorable to the prosperity
of states— to be, in fact, the only principles of government which meet
the demands of the present enlightened age— the President has per-
lOS

CHAP. Ill.J AGE^'CIKS FOR INFORMATION. § 47.

ceived with great satiNlactiou that, in the constitution recently intro-
duced into the Austrian Empire, many of these great principles are rec-
ognized and applied, and he cherishes a sincere wish that they may pro-
duce the same happy efi'ects throughout his Austrian Majesty's exten-
sive dominions that they have done in the United States."

Mr. Webster, Sec. of State, to Mr. Hiilsemauu, Dec. 21, 1850. MSS. notes,
Austria; G Webster's Works, 488,^.

The correspondence with Austria in respect to the Mann agency will be found in
the British and Foreign State Papers for l>-49-'.50, Vol. 50, 254, Hiilsemann's
Corres. A fictitious reply, said to have been made by Mr. Hiilsemann to
Mr. Webster, was published as a sort of hoax in several papers in the
United States, and was republished as authentic in L'Anuuaire de Lesur of
1851, in page 183 of the .ippeudix. See statement by Mr. Lawrence, 1 Law-
rence, Com. sur Droit int., 204, that he was informed by Mr. Everett, who
succeeded Mr. Webster, that the letter was a forgery.

The object of Mr. A. D. Mann's mission to Hungary is thus stated
by Mr. G. T. Curtis : (2 Curtis' Life of Webster, 533.)

" In June, 1849, President Taylor appointed an agent, Mr. A. Dud-
ley Mann, under secret instructions, to proceed to Hungary, for the
purpose of obtaining accurate information concerning the progress of
the revolution in that country, with a view of acknowledging her inde-
pendence, in case of her succeeding in establishing a government de
facto on a basis sufiiciently permanent in its character to justify that
step according to the practice of our government in similar cases.
This agent, however, did not enter Hungary, or hold any direct com-
munication with her revolutionary leaders; for, on his arrival in Euro])e,
the efforts of these leaders to set up a firm and stable government had
failed, in consequence of which he reported to the President against the
recognition of Hungarian independence.

''In March, 1850, the Senate having called ft)r a copy of Mr. Mann's
instructions, President Taylor sent a message communicating all the
documents relating to this agency, and avowing it to have been his in-
tention to have acknowledged the independence of Hungary if she had
succeeded in setting up such a government as is usually regarded to
be a government de facto. This i)roceeding, when it became publicly
known, was considered by the Austrian government as offensive, and
its representative in Washington, Mr. Hiilsemann, complained of it in
an ofl&cial letter addressed to Mr. Clayton, then Secretary of State. Mr,
Clayton answered that Mr. Mann's mission had no other object than to
obtain reliable information as to the true state of Hungarian affairs by
personal observation. Instructions from the Austrian government to
Mr. Hiilsemann directing his reply to Mr. Clayton, reached Washing-
ton at about the time of President Taylor's death ; and when the new
administration of President Fillmore was completely organized, viz., on
the 30th of September, 1850, this reply was addressed by Mr. Hiilse-
mann to Mr. Webstei;, The duty was thus devolved upon Mr. Webster
of vindicating a measure for which he and President Fillmore were in
no way responsible. But Mr. Webster had never admitted the propri-
ety of any discrimination in conducting the foreign relations of the
country, between the acts of different administrations, and, as the tone
of Mr. Hiilsemann's letter to him was far from being courteous or just
toward the Government of the United States, he thought proper to

199

§ 47a.] INTERVENTION. [CHAP. III.

{jive it an answer of a very firm character, that shonkl thoroughly vin-
dicate the right of this country to do what had been done or proposed
in tlie case of Hungary. * * » The celebrated dispatch, which is
commonly known as 'the lliilsemanu letter,' was not finished and sent
to Mr. Iliilsemann by Mr. Webster until the 21st of December. * * *

"As the authorship of this remarkable i)aper has sometimes been
imputed to another person, it may be proper to give the facts
respecting its prei)aration, though they involve nothing more important
than a question of literary interest. Mr. Webster, as has been stated,
arrived at ]\Iarshfield on the 9th of October, 1850, where he remained for
the space of two weeks. He brought with him the papers relating to
this controversy with Austria. Before he left Washington, he gave to
Mr. Hunter, a gentleman then and still filling an important post in the
Department of State, verbal instructions concerning some of the points
which would be required to be touched on in ananswertoMr.Hiilsemann's
letter of September .30th, and requested Mr. Hunter to prepare a draft
of such an answer. This was done, and Mr. Hunter's draft of an answer
was forwarded to Mr. Webster at Marshfield. On the 20th of October,
Mr. Webster, being far from well, addressed a note to Mr. Everett, re-
questing him also to prepare a draft of a reply to Mr. Hiilsemanu, at
the same time sending to Mr. Everett a copy of Mr. Hiilsemann's letter
and of President Taylor's message to the Senate relating to Mr. Mann's
mission to Hungary. On the 21st. Mr. Webster went to his farm in
Franklin, New Hampshire, where he remained until the 4th of Novem-
ber. While there, he received from Mr. Everett a draft of an answer
to Mr. Hiilsemann, which was written by Mr. Everett between the 21st
and 24th of October. » » *

"The facts are that while at Franklin, Mr. Webster, with Mr. Hunt-
er's and Mr. Everett's drafts both before him, went over the whole
subject, making considerable changes in Mr. Everett's draft, striking
out entire ])aragraphs with his pen, altering some phrases, and writing
new paragraphs of his. own, but adopting Mr. Everett's draft as the
basis of the ofUcial paper, a purpose which he expressed to Mr. Everett
on his return to Boston toward Washington. Subsequently, when he
had arrived in Washington, Mr. Webster caused a third draft to be
made in the State Department from Mr. Everett's paper and his own
additions and alterations. On this third draft he made still other
changes and additions, and when the whole was completed to his own
satisjaction, the official letter was drawn out by a clerk, was submitted
to the President, and, being signed by Mr. Webster, was sent to Mr.
HtLlsemann."

(3) Sympathy with liberal political struggles.

§ 47a.

"Born, sir, in aland of liberty; having early learned its value; having
engaged in a perilous conflict to defend it; havipg, in a word, devoted
the best years of my life to secure its permanent establishment in my
own country, my anxious recollections, my sympathetic feelings, and
my best wishes are irresistibly excited, whensoever, in any country, I
see an oppressed nation unfurl the banners of freedom. But, above all,
the events of the French revolution have produced the deepest solici-
200

CHAP. III.] SYMPATHY WITH LIBERALISM. [§ 47a.

tilde, as well as the highest admiration. To call your natiou brave,
were to pronounce but common praise. Wonderful peo})le! Ages to
come will read with astonishment the history of your brilliant exploits!
I rejoice that the period of your toils and of your immense sacri-
fices is approaching. I rejoice that the interesting revolutionary move-
ments of so many years have issued in the lormation of a constitution
designed to give permanency to the great object for which you have
contended. I rejoice that liberty, which you have so long embraced
with enthusiasm ; liberty, of which you have been the invincible
offenders, now finds an asylum in the bosom of a regularly organized
Government; a Government which, being formed to secure the happi-
ness of the French people, corresponds with the ardent wishes of my
heart, while it gratifies the pride of every citizen of the United States,
by its resemblance to their own. On these glorious events, accept, sir,
my sincere congratulations.

" In delivering to you these sentiments, I express not my own feelings
only, but those of my fellow-citizens, in relation to the commencement,
the progress, and the issue of the French rcAolution ; and they will
cordially join with me in purest wishes to the Supreme Being, that the
citizens of our sister Re|)ublic, our magnanimous allies, may soon enjoy
in peace that lib.erty which they have purchased at so great a price,
and all the hapi^iness which liberty can bestow.

" I receive, sir, with lively sensibility, the symbol of the triumphs
and of the enfranchisement of your nation, the colors of France, which
you have now presented to the United States. The transaction will be
announced to Congress, and the colors will be deposited with those
archives of the United States which are at once the evidences and the
memorials of their freedom and independence. May these be perpet-
ual ! and may the friendship of the two republics be commensurate with
their existence."

Answer of President Washington to the address of the French minister, Mr.
Adet, on his presenting the colors of France to tlie United States, January
1, 1796. (2 Wait's State Papers, 99.)

For papers as to intervention, in 1823-'24, on behalf of the Greeks in their up-
rising against Turkey, see House Doc. No. 36:i-, 18th Cong., Ist sess. ; 5
Am. State Papers (For. Rel.), 251,252.

For the attitude of this Government in reference to Genet and his appeals for
support, see infra, §§ 84, 106.

As to question of recognizing foreign revolutions, see infra, ^^ 69,70.

As to expression of opinion in reference to foreign liberal movements, see infra
§§ 56,389.

"The war of the Greeks for independence early attracted attention in
this country. Mr. Dwight, of Massachusetts, on the 24th of December,
1822, presented to the House a memorial in their favor. The senti-
ment of the House was against meddling with the subject, and the me-
morial was ordered to lie on the table.

" Early in the next session (December 8, 1823), Mr. Webster submit-
ted to the House a resolution that provision ought to be made by law

201

§ 47a.] INTERVENTION. [CHAP. III.

for defriiying the expense incideut to the appointment of an agent or
noimnissioiK^r to Greece, whenever the President shall deem it expedient
to make sncJi ai)pointment. On the 19th of the same month the House
requested the. President to lay before it any information he might have
received, aud which he might deem it improper to communicate, re-
specting the condition and future prospects of the Greeks.

"(hi the 2!>th a memorial was pres<'nted from citizens of New York,
re(] nesting the recognition of the independence of Greece. On the 31st
the President transmitted the desired information to Congress. On
the 2d of January, 1824, Mr. Poinsett laid before the House a resolution
of the general assembly of South Carolina that that State would hail
with pleasure the recognition by the American Government of the
independence of Greece. On the 5th Webster presented a memorial
from citizens ot Boston. The debate upon Webster's resolution began
upon the 19th of January and continued until the 26th. It took a
wide range, developed great diversity of sentiment, and produced no
result.

'' The sympathy for the Greeks continued to manifest itself. On the
2d of January, 1827, Edward Livingston moved to instruct the Com-
mittee of Ways and Means to report a bill appropriating $50,000 for
provisions for their relief. The bill was negatived on the 27th. Pri-
vate relief was given, and in his annual message to Congress in the fol-
lowing December the President transmitted to Congress correspond-
ence respecting it with Capo d'Istrias and 'with the president and
secretary of the creek national assembly.

" The first and only treaty with Greece was concluded in London in
1837 between the ministers of the respective powers at that court. It
was sent to Congress with the President's message of December 4, 1838.'>

Mr. J. C. B. Davis, Notes, etc.

The " sympathy" expressed in the United States for the Greek insur-
rection against Turkey never took the shape of intervention. Of the
intervention of Great Britain, France, and Russia in that struggle, Mr.
Abdy, in his edition of Kent (1878, p. 50), thus speaks: " The interven-
tion was based on three grounds— first, in order to comply with the
request of one of the parties; secondly, on the ground of humanity in
order to stay the eflusion of blood; and, thirdly, in order to put a stop
to piracy and anarchy. If the recognition of the Greek insurgents and
the intervention in their favor are to be looked upon as precedents, it
IS fitting that all the facts connected with them should be investigated,
all the documents examined, an<l a careful distinction made between
the ])olicy and the legality of what was done. And then, in spite of
tlie vigorous defense of the British minister of the day, it is difficult to
withhold our assent from the judgment passed bv an able writer of our
own time (Sir W. Harcourt, in ' Historicus') upon the event, when he
says tliat 'the emancipation of Greece was a high act of policy above
an( beyond the domain of law. As an act of policv it may have been
aiK was .lustihable; but it was not the less a hostile act, which, if she
had dared, Turkey might properly have resented by war.'"

It IS not ])ermissible for one sovereign to address another sovereign
on political questions pending in the latter's domains unless invited so
to do.

Infra, $$ 7b, 79.
202

CHAP. III.] HOSPITALITY TO KEFUGEES. [§48.

The Presideut will not receive officially, unless tlirougb the diplo-
matic i'oi)re.sentatives of their country, foreigners claiming to speak
for political interests in their own land.

Infra, § 91.

As to denioustrations of sympathy with foreign belligerents or insurgents, see

injra, % 389.
As to sympathy with Hungarian insurrection in ISiVi, see supra, § 47 ; infra, ^ 48.

(4) Hospitality to political refugees.

§ 48.

" Ton are well aware that the deepest interest is felt, among the people
of the United Stales, in the fate of Kossuth and his compatriots of
Hungary, who have hitherto escaped the vengeance of Austria and
Russia by seeking an asylum within the boundaries of the Ottoman
Empire. The accoun ts respecting them have been so conflicting — some-
times representing them as having escaped, and at others as being
captive — that we have not known what to credit, and have, therefore,
declined to interlere in their behalf; nor do we now desire to interfere
by entangling ourselves in any serious controversy with Eussia or
Austria. But we cannot supi)ose that a compliance with the dictates
of humanity, now that the contest with Hungary is over, would involve
our friendly relations with any other power. Should you be of the opin-
ion that our good offices would avail anytliing to secure their sai'ety and
their escape from the hands of those who still pursue them, it is desired
by your Government that you should intercede with the Sultan in their
behalf. The President would be gratified if they could find a retreat
under the American flag, and their safe conveyance to this countrj-, by
any one of our national ships w^hich may be about to return home,
would be hailed with lively satisfaction by the American people."

Mr. Clayton, Sec. of State, to Mr. Marsh, Jan. 12, 1850. MSS. Inst., Turkey.

" By a dispatch of my predecessor, you were instructed to ofier to
the Sublime Porte to receive Mr. Kossuth and his companions on board
of one of the national ships of the United States, to convey them to this
country.

" It would be extremely gratifying to the Government and people of
the United States if this i^roposition could have been, at that time,
accei)ted; but it is understood that it's not having been complied with,
by the Sublime Port did not arise from a wish, on His Imperial Maj-
esty's part, to detain them, or from any unwillingness that they should
proceed to the United States, but w^as in consequence of the Sultan's
offer to Austria, to detain these persons for one year, at the expiration
of which time, unless further conventions should be entered into to pro-
long their detention, they should be at liberty to depart.

•' If this be so, the time is near at hand when their release may be
expected, and when they may be permitted to seek an asylum in any

203

^ 48.] INTERVENTION. [CHAP, III.

part of the woiM to wiiicb tbey yliall be able to procure tlie meaus of
transport a lion.

•'It is conlideiitKy hn\n'd that the Sublime Porte Las not made, and
will not make, any new stipulation, with any power, for their further
detention; and you are directed to address yourself urgently, though
respectfully, to the Sublime Porte on this question.

" You will cause it to be strongly represented that while this Govern-
ment has no desire or intention to interfere, in any manner, with ques-
tions of public policy, or international or municipal relations of other
governments, not afiecting the rights of its own citizens, and while it
has entire confidence in the justice and magnanimity and dignity of the
Sublime Porte, yet on a matter of such universal interest, it hoi^es that
suggestions proceeding from no other motives than those of friendship
and respect for the Porte, a desire for the continuance and perpetuity
of its independence and dignified position among the nations of the
earth, and a sentiment of commiseration for the Hungarian exiles, may
be received by the Porte in the same friendly spirit in which they are
oflered, and that the growing good feeling and increasing intercourse be-
tween the two Governments may be still further fostered and extended,
by a happy concurrence of opinion and reciprocity of confidence upon this
as upon all other subjects. Compliance with the wishes of the Gov-
ernment and people of the United States in this respect will be regarded
as a friendly recognition of their intercession, and as a proof of national
good will and regard.

" The course which the Sublime Porte pursued in refusing to allow
the Hungarian exiles to be seized upon its soil by the forces of a for-
eign state or to arrest and deliver them up itself to their pursuers was
hailed with universal approbation, it might be said with gratitude,
everywhere throughout the United States, and this sentiment was not
the less strong because the demand upon the Sublime Porte was made
by (Governments confident in their great military power, with armies in
the field of vast strength, flushed with recent victory, and whose pur-
poses were not to be thwarted or their pursuit stayed by any obstacle
less than the interposition of an empire prepared to maintain the invi-
olability of its territories and its absolute sovereignty over its own soil.

" This Government, jealous of its own territorial rights, regarded
with great respect and hearty approbation the firm and lofty position
assumed by His Imperial Majesty at that time, and so proudly main-
tained under circumstances well calculated to inspire doubt, and against
demands urged with such gravity and supi)orted by so formidable an
array. His Imperial Majesty felt that he should be no longer an inde-
pendent prince if he consented to be anything less than the sovereign
of his own dominions.

" While thus regarding the political position and conduct of the Sub-
lime Porte in reference to other powers, His Majesty's generosity in pro-
viding for the wants of the fugitives, thus unexpectedly and in so great
-504

CHAP. III.] HOSPITALITY TO REFUGEES. [§ 48.

numbers throwing themselves upon his protection, is considered equally
worthy of admiration.

" For their attempt at independence they have most dearly paid, and
now, broken in fortune and in heart, without home or country, a band
of exiles, whose only future is a tearful remembrance of the past, whose
only request is to spend the remainder of their days in obscure industry,
they await the permission of llis Imperial Majesty to remove them-
selves, and all that may remain to them, across the ocean to the uncul-
tivated regions of America, and leave forever a continent which to them
has become more gloomy than the wilderness, more lone and dreary
than the desert.

' ' The people of the United States expect from the generosity of the
Turkish monarch that this permission will be given. They wait to receive
these exiles on their shores, where, without giving just cause of uneasi-
ness to any Government, they may enjoy whatever of consolation can be
afforded by sympathy for their sufferings and that assistance in their
necessities which this people have never been late in offering to any,
and which they are not now for the first time called upon to render.
Accustomed themselves to high ideas of national independence, the
peo])le of the United States would regret to see the Government of the
vast empire of Turkey constrained, by the force of circumstances, to
exercise the duty of keeping prisoners for other powers.

'• You will further say to the Sublime Porte that if, as this Govern-
ment hopes and believes, Mr. Kossuth and his companions are allowed
to deijart from the dominions of His Imperial Majesty at the expiration
of the year commencing in ^'ay, 1850, they will find conveyance to the
United States in some of its national ships now in the Mediterranean
Sea which can be spared for that purpose, and you will, on receiving
assurances that these persons will be permitted to embark, ascertain
precisely their numbers, and immediately give notice to the commander
of the United States squadron on that station, who will receive orders
from the proper authorities to be present with such of the ships as may
be necessary or can leave the station to furnish conveyance for Kossuth
and his companions to the United States."

Mr. Webster, Sec. of State, to Mr. Marsh, Feb. 28, 1851. MSS. Inst., Turkey.

" On the 3d of INIaich last both houses of Congress passed a resolu-
tion requesting the President to authorize the employment of a public
vessel to convey to this country Louis Kossuth and his associates in
captivity.

"The instruction above referred to was complied with, {yid, the Turk-
ish Government having released Governor Kossuth and his compan-
ions from prison, on the 10th of September last they embarked on board
of the United States steam frigate Mississippi, which was selected to
carry into effect the resolution of Congress. Governor Kossuth left the

205

^ 48.] INTERVENTION. [CHAP, III.

Mississippi at Gibraltar lor the purpose of making a visit to England,,
and may sliortly be expected in New York. By communications to the
Department of State he has expressed bis grateful acknowledgments
for the interposition of this Government in behalf of himself and his
associates. This country has been justly regarded as a safe asylum for
those whom political events have exiled from their own homes in
Europe, and it is recommended to Congress to consider in what manner
Governor Kossuth and his companions, brought hither by its authority,
shall be received and treated."

President Fillmore's Second Annual Message, 1851. (Mr. Webster, Secretary of
State).

As to Kossuth's erratic performances on the Mississippi steam frig-
ate, when on his way from Smyrna to the United States, see House Ex.
Doc. jS'o. 78, 32d Cong., 1st sess. It appears that he was by no means
a tractable guest, and that at every port at which the Mississippi
stopped he became the object of revolutionary demonstrations, said to
have been excited by himself. This was particularly the case at Mar-
seilles, where Kossuth left the steamer, for the purpose, as he alleged,
of going direct to England, to rejoin the steamer afterward when at
Gibraltar. At Marseilles he was the center of great commotion, which,
in the excitement under which he was laboring, he fomented, and per-
mission was refused him to pass through France. He, therefope, after
what was almost, according to the report of Mr. Hodge, consul at Mar-
seilles, a mob valedictory at Marseilles, returned to the Mississippi.

"It was on the last day of the year that a formal presentation of M.
Kossuth to the President by Mr. Webster took place. On that occasion
the reply of Mr. Fillmore to M. Kossuth's address, while it was ex-
tremely courteous and sympathetic, was yet perfectly explicit in declar-
ing that the Government could lend no sanction to measures whose
design was to foster and aid a revolutionary movement against a
friendly power. That declaration was made under circumstances which
1 will presently describe, and which were well calculated to render M.
Kossuth uncomfortable, and, so far as he was open to such an emotion,
to add self reproach to his great disappointment.

"Accordingly, ^I. Kossuth was in no amiable mood during his visit
to Washington. He was reserved and moody, and received the atten-
tions that were lavished upon him with a distrait and dissatisfied air,
and with a scant return of courtesy. It so happened that I chanced to
make my New Year's call on ^Nlr. and Mrs. Webster at the moment that
M. Kossuth and his i)arty entered. He stood apart from the few guests
that were then present, and his whole bearing threw a chill and restraint
over the circle. I remarked to Mrs. Webster that her illustrious guest
seemed to be in an unsocial mood, and she replied that when she had
attempted to open conversation with him by remarking upon the bright-
ness of the day, he replied that he took no interest in the weather-
that his mind was absorbed in i)ainful thoughts about his country— and
the conversation, naturally enough, proceeded no further.

" I think it was on the following day that the President gave a dinner

to :\I. Kossuth, to which General Scott and the Cabinet and a few other

public men, and to which also I and my wife were invited. As we were

about to proceed to the reception-room we encountered Mr, and Mrs,

206

CHAP. III.] HOSPITALITY TO REFUGEES. [§ 4<S.

Webster, iind at the suggestion of the latter Mrs. Webster took my arm
and he gav^e his own to my wife. As we were about to move in this or-
der, a servant announced that M. Kossuth was immediately beliind us,
whereupon Mr. Webster turned to welcome him, announcing to his wife
at the same moment — against her remonstrances, for she felt that he
had been rude to her — that we must change ' vhe order of our going,'
and that she must take M. Kossuth's arm. During and after dinner the
bearing of the guest, in behalf of whom the banquet had been given,
was stately and constrained. It was evident that he felt sore and
angry. He stood apart after dinner, in a manner which repelled at-
tempts to enter into conversation with him. His whole appearance,
alike by his picturesque costume and his attitude and expression, sug-
gested a moody Hamlet, whom neither man nor woman pleased. After
a vain attempt to engage him in conversation on Hungarian topics, I
asked Mr. Fillmore what had happened to his illustrious guest to have
thrown him into such an evidently ungenial state of feeling. He said
it was in consequence of what had occurred at his i)resentation. Mr.
Fillmore told me that there had been an explicit understanding with
M. Kossuth, through his secretary, that there was to be no allusion in
his speech, upon being presented, to the subject of aid or intervention
on the part of the Government of the United States, in behalf of the
party in Hungary that aimed to secure its independence of Austria, and
that he had prepared his reply on the assumption that such would be
the character of the address. His surprise was therefore great when
M. Kossuth in his address invoked that aid, and expressed the hope
that it would be given. The President was compelled, on the spur of
the moment, to omit what he had prepared to saj , and to declare to
him, with perfect courtesy, but with equal explicitness, that nothing
like sanction, much less material aid, for the cause of the independence
of Hungary could be given by the Government of the United States.
The reply was admirable, and could not have been improved had Mr.
Fillmore anticipated the tenor of Kossuth's address and prepared his
answer. It was courteous, yet extremely dignified and decided. In-
deed, it may be regarded as fortunate that an occasion so conspicuous
occurred for proclaiming at home and to foreign states that the policy
of the Government was then, as it had always been, that of absolute
non-intervention in the affairs of European nations.

''Mr. Webster, who presented M. Kossuth to the President, wrote on
the same day to a friend that ' Mr. Fillmore received him with great
propriety, and his address was all right — sympathy, personal respect,
and kindness, but no departure from our established policy.' I inferred
from Mr. Fillmore's animated description of the scene that he regarded
it as an unfair attempt to entrap him into some expression or some
omission which might seem to countenance M. Kossuth's cherished koi^e
of inducing the Government to give both its moral ajid material aid to
renew the struggle for Hungarian inde])endence. It is not strange that
he should have passionately desired such a result ; but it was a singular
delusion to sui)]»ose it possible that our Government would enter upon
the quixotic career of making the United States the armed chami)ionof
European nationalities struggling lor liberty and independence.

"At the Congressional dinner given to M. Kossuth his reception was
most enthusiastic. In common with all the audience, I was completely
entranced by his singularly captivating eloquence. I was assigned a
seat next to Mr. Seward, and his demonstrations of applause by hands
and feet and voice were excessive. The 'Hungarian Whirlwind' car-

sS 48.] INTERVENTION. [CHAP. III.

tainly carried away everything on that occasion, and mingled all par-
ties into one confused mass of admirers prostrate at Kossuth's feet.
The sjioech weemed to me wanting in no element of a consummate mas-
teri)iece of eloquence. The orator's picturesque appearance, his archaic
English style, his vibrant and thrilling voice, aud his skillfully selected
and arranged topics, all concurred in the production of an effect upon
his audience such as 1 have never seen surpassed. As addressed to
American statesmen, it exhibited, what was very rare among foreigners,
a ])erfect understanding of our Government, as the union of separate
states with their autonomy in a given sphere, under a general consti-
tution. His eulogium of this arrangement, and his description of its
aihiptation and its probable adoption by various nationalities in Europe,
was very skillful. The union of Germany in one empire may be re-
garded by some as the first step toward that confederated German
rei)ublic which he foretold.

" It was doubtful up to the last moment before Mr. Webster's appear-
ance whether he would come and make a speech on that occasion. * * *

"The speech which Mr. Webster made, as we now read it, seems very
appropriate to the occasion and to his own position; but his manner
was constrained, and after the high pitch of enthusiasm to which the
audience had been wrought up, it fell rather heavily upon them, and
did not give that measure of encomium of M. Kossuth which their feel-
ings at the moment craved. But Mr. Webster spoke to an audience,
many of whom were bitter political foes or alienated friends, and his
recent exi)erience in connection with M. Kossuth, while it had not
diminished his admiration of his brilliant ability, had convinced him
that, though matchless as an orator, he was no statesman. Moreover,
his position as Secretary of State made it incumbent upon him to speak
with great caution. If there was an intention on the part of Mr. Seward
to entrap j\Ir. Webster into any compromising declarations by which
his influence or his prospects might be injured, it was not successful.
The speech might not be vehemently admired; it could not justly be
condemned."

Dr. C. M. Butler's reminiscences of Mr. Webster.

''The progress of things is unquestionably onward. It is onward
with respect to Hungary; it is onward everywhere. Public opinion,
in my estimation at least, is making great progress. It will penetrate
all resources; it will come more or less to animate all minds; and, in
respect to tlrat country for which our sympathies to-night have been so
strongly invoked, 1 cannot but say that I think the people of Hungary
are an enlightened, industrious, sober, well-inclined community, aud I
wish (»nly to add that T do not now enter into anv discussion of the
form of government that may be proper for Hungary. Of course, all
of you, like myself, would be glad to see her, when she becomes inde-
I)end<'nt, embrace that system of government which is most acceptable
to ourselves. We shall rejoice to see our x\merican model upon the
Lower Dainibe and on the mountains of Hungary. But this is not the
first step. It is not that which will be our tirst prayer for Hungary.
That first i>rayer shall be that Hungary may become independent of all
foreign powers; that her destinies may be intrusted to her own hands
and to her own discretion. I do not profess to understand the social
relations and connections of races and of twentv other things that may
aftect the public institutions of Hungary. All 1 say is that Hungary
can regulate these matters for herself infinitely better than they can be
208

CHAP. III.] HOSPITALITY TO REFUGEES. § 48.

ie},'nlated for her by Austria; and, tlierefore, I limit my aspirations for
Llun;zary, lor the present, to that single and simple ])()int — Hungarian
in(k'pen<lence, Hungarian self-government, Hungarian control of Hun-
l>arian destinies."

Mr. Webster's Speech at Kossuth Banqiiet, Jan. 7, 1852; 2 Curtis'sLife of Web-
ster, p. 578.

"After the disastrous termination of the Hungarian campaign, 1849,
Kossuth, with four thousand of his comi)anions, Poles and Hungarians,
iled from Hungary-, and found safety at Choumla, in the dominions of the
Sultan of Turkey. Others, who had taken refuge at Widdin, in Bul-
garia, confiding in the amnesty offered them by the Austrian general
sent there for that x>urpose, returned into Hungary only to meet with
death in the most ignominious form.

"The exciting struggle between Hungary and Austria had been
-watched with close attention by the people of this country, and the
Government had manifested its interest through the attempt on the
])art of the charge d'affaires of the United States, kt Vienna, in 1848,
'to open the door of reconciliation between the opposing parties,' which
course received, as was stated by Mr. Buchanan, then Secretary of
State, the entire approval of the President. Soon after, a special and
-confidential agent was authorized by President Taylor to obtain minute
and reliable information in regard to Hungary, and invested with full
l)ower to conclude and sign a treaty with her in the name of the United
States.

"Public meetings were held to give expression to the general sym-
pathy, and it was officially stated by this Department, that this Gov-
ernment, in the event of the recognition of her independence, would be
most happy to enter into commercial as well as diplomatic relations
with independent Hungary.

"And when the conflict was finally determined, the deepest interest
was felt among the people of the United States in the fate of Kossuth
and his compatriots who had sought an asylum within the boundaries
of the Ottoman Empire. The diplomatic agent of the United States
was instructed by Mr. Clayton, in January, 1850, to intercede with the
Sultan in their behalf, and it was suggested that the President would
be gratified if they could find a retreat under the American flag ; and it
was added that their safe conveyance to this country by any one of our
national ships would be hailed with lively satisfaction by the AmericaM
people. Various obstacles interposed to prevent the immediate fulfill-
ment of this design. Finally, in February, 1851 , Mr. Webster, by direc-
tion of the President, instructed Mr. Marsh to assure the Sultan that if
Kossuth and his companions were allowed to depart from the dominions
of His Imperial Majesty at the expiration of the year commencing in
May, 1850, for which period he had promised the Austrian Government
to detain them, that they would find conveyance to the United States
in some of its national ships then in the IVIediterranean Sea. In Sep-
S. Mis. 162— VOL. I 14 209

^S 49.] INTERVENTION. [CHAP. III.

teiiibor of tbe same year, Kossuth, aud so mauy of bis compauious as
could coiivcuieutly be received on board the United States steamship
Mississip])!, embarke<l for the United States. The original number of
the refugees was much diminished during their stay in Turkey; a large
number escaped through the connivance of the Turkish authorities, and
made their way by means of passports or official certificates, given by
the United States agents, to different parts of Europe, and even to the
United States, some returned to Hungary, and many arrived in Con-
stantinople. * * * Their necessities compelled the legation and the
consulate of the United States — the latter then and for a considerable
period previously in charge of the memorialist — to contribute, as it is
alleged by both, to their relief to an extent which, as stated by Mr.
Marsh, was a serious embarrassment to him. He was aware that he
♦ ould not lawfully claim any allowance for this expenditure in his ac-
count with the contingent fund, but the action of the Government and
the expression of public sympathy in America had put him in aposition
which absolutely compelled him to go much beyond his means in sup-
l>lying the wants of these suffering outcasts."

Mr. Marcy, Sec. of State, to Mr. Mason, Chairman of Committee on Foreign
Relations, U. S. Senate, July 25, 1854. MSS. Report Book.

As to intervention in Koezta'.s case, see infra ^ 198; Sen. Ex. Doc. No. 1, 33d
Cong., iHt sess. ; Senate Ex. Doc. No. 40, 53, id.

(5) Mediation.

§ 49.

President J. Q. Adams's message of May 21, 1828, giving correspond-
ence in reference to mediation between Spain and the Spanish American
colonies, is contained in House Doc. Xo. 407, 20th Cong., 1st sess., 6
Am. State Papers (For. Eel.), 1006.

In a report of Mr. Clay, Secretary of State, March 29, 1826, addressed
to the President, and by him sent to Congress, it is stated that "the

^. reign

]»()wers with the independence or form of government of those nations;
nor have any instructions been issued, authorizing any such engage-
ment or pledge. It will be seen that the message of'the late Presi-
dent ot the United States of the 2d December, 1823, is adverted to in
the extracts now furnished from the instructions to Mr. Poinsett, and
that he IS directed to imi)ress its principles upon the Government of the
united Mexican States.

"All api)rchensions of the danger, to which Mr. Monroe alludes, of
an interterence by the allied powers of Europe, to intioduce their polit-
ical .systems into this hemisphere, have ceased. If, indeed, an attempt
by torce ha<l been made, by allied Europe, to subvert the liberties of the
southern nations on this continent, and to erect, upon the ruins of their
tree institutions, monarchical systems, the people of the United States
would have stood pledged, in the opinion of their Executive, not toauv
loreign state, but to themselves and to their posterity, by their dearest
210

CHAP. III.] MEDIATION. § 49.

interests and highest duties, to resist to the utmost such attempt; and
it is to a pledge of that character that Mr. Poinsett alone refers."

See British and Foreign State Papers (1825-'G), Vol. 1:5, p. 484.

" On the part of France the mediation (that of Great Britain in 1835,
as to the non-performance of the French spoliation treaty) was publicly
accepted before the offer of it could be received here. Whilst each of
the two Governments has thus discovered a just solicitude to resort to
all honorable means of adjusting amicably the controversy between
them, it is a matter of congratulation that the mediation has been ren-
dered unnecessary. Under such circumstances the anticipation may be
confidently indulged, that the disagreement between the United States
and France will not have produced more than a temporary estrange-
ment. * * * Of the elevated and disinterested part the Government
of Great Britain has acted, and was prepared to act, I have already had
occasion to express my high sense."

President Jackson's Message of Feb. 23, 1836. See infra, § 318.
The papers relative to British mediation for the settlement of differences be-
tween France and the United States, respecting the convention of claims of
1831, will be found in the British and Foreign State Papers for 1835-'6, Vol.
24, 1104, 1155, 1156. See also same work for 1833-'4, Vol. 22, 595, 964. See
further as to the controversy as to these claims between France and the
United States, infra H 148, 228, 316, 318.

" It has never been the purpose of the Government of the United
States to interpose, directly or indirectly, in the afliairs of the states of
Central America, with a view to settle the controversies between them
by any influence whatsoever exercised by this Government, without their
request or free consent. The mediation and friendly ofltices of this Gov-
ernment have been solicited, and this request has been complied with
and nothing more. Not a step has been taken to coerce either of those
Governments into any measure not satisfactory to itself. These Eepub-
lics are small, and in a great degree powerless, but we respect the na-
tional character and independence of each. And although it is to be
deeply regretted that, for national purposes, they are not united in some
form of confederacy, yet, whilst things remain as they now are, we are
to treat with each of them as a separate and independent state."

Mr. Webster, Sec. of State, to the President, Aug. 12, 1852. MSS. Report Book.

" Our minister to China, in obedience to his instructions, has remained
perfectly neutral in the war between Great Britain and France and the
Chinese Empire, although in conjunction with the Russian minister, he
was ever ready and willing, had tlie opi)ortunity oftered, to employ his
good offices in restoring peace between the parties. It is but an act of
simple justice, both to our present minister and his predecessor, to state
that they have proved fully equal to the delicate, trying, and responsi-
ble positions in which they have on different occasions been placed."
President Buchanan's Fourth Aunual Message, 1860.

211

^^ 49 ] INTERVENTION. [CHAP. III.

'' In 18o;> this Government, together with those of Great Britain and
France, through their diplomatic representatives, concluded important
treaties of Irieiidship, commerce, and free fluvial navigation with thede
/actoGovernmentof the Argentine Confederation. Those treaties opened
to all the riparian states the commercial opportunities and advantages
which, hitherto, hnd been exclusively controlled and enjoyed by Buenos
Ayres. Dissatisfied with a policy which removed the barriers she had
set up to confine trade to her own capital, and blind to the fact that,
seated as she was at the common door through which alike must pass
the trade and travel to and from the regions of the Salado, the Para-
guay, and the Uruguay, every vessel which sailed up and down those
rivers would i)our tribute into her lap, she formally protested against
the execution of the treaties of commerce and free navigation, and with-
drew from the sisterhood of which she was naturally and politically a
member.

" Under these circumstances there was but one consistent course to
be pursued by those Governments which had entered into treaty stipu-
lations with the confederation. That was to discountenance the selfish
and illiberal policy of Buenos Ayres, and to bestow the moral weight and
influence of diplomatic relations ujjon the Government which had been
prompt to recognize the liberal commercial principles of the age."

Mr. Cass, Sec. of State, to Mr. Lamar, Oct. 23, 1857. MSS. Inst , Arg. Rep.

" The United States stand as the great American power to which, as
their natural ally and friend, they (the South America nations) will
always be disposed first to look for mediation and assistance, in the
event of any collision between them and any European nation. As
Huch we may often kindly mediate in their behalf without entangling
ourselves in foreign wars or unnecessary controversies. Whenever the
faith of our treaties with any of them shall require our interference, we
must necessarily interpose."

PresideDt Taylor's First Annual Message, 1849.

" The fact that the national attachment of this country to France is
so pure and so elevated, constitutes just the reason why it could be
more easily supplanted by national insult or injustice than our attach-
ment to any other foreign state could be. It is a chivalrous sentiment,
and it must be preserved by chivalrous conduct and bearing on both
sides. I deduce from the two positions which I have presented a con-
clusion which has the most solemn interest for both parties, namely,
that any attempt at dictation— much more any aggression committed
by the Government of France against the United States— would more
certainly and eftectivcly rouse the American people to an attitude of
determined resistance than a similar afiront or injury committed by any
other power. There is reason to believe that interested sympathizers
with the insurrection in this country have reported to the French Gov-
ernment that it would find a party here disposed to accept its media-
212

CHAP. III.] MEDIATION. [§ ■^^•

tioa or interventiou. I uuderstantl that they reckon upon a suj)posed
s.yujpatliy between our democratic citizens and the French Government,
It may as well be understood as soon as possible that we have no dem-
ocrats who do not cherish the independence of our country as the first
element of democratic faith, while, on the other hand, it is partiality for
France that makes us willingly shut our eyes to the fact that that great
nation is only advancing towards, instead of having reached, the dem-
ocratic condition which attracts us in some other countries."

Mr. Seward, Sec. of State, to Mr. Dayton, Dec. 29, 1862; MSS. Inst., France;

Dip. Corr., 18G3.
On the subject of foreign mediation in the late civil war, see Senate Ex. Doc

No. 38, 39th Cong., 3d Sess. ; Brit, and For. State Papers for 1864-'.5, vol.

55 ; 3 Phill. Int. Law (3d ed.), 11.

In the wars between Spain and certgjn South American Eepublics
in 1865-'6, the United States " seeks the friendship of neither at the cost
of unfairness or concealment in its«commuuicatious to the other. We
have tendered our good ofilices to each. They have not been accepted.
We have concurred in a suggestion that the merits of these unhappy
contests should be referred to the Emperor of Russia. We are quite
willing to see Great Britain and France undertake the task of media-
tors. We will favor that or other mediations the parties may be in-
clined to adopt. We seek no acknowledgments or concessions from
either party as an equivalent for impartiality and friendship."

Mr. Seward, Sec. of State, to Mr. Hale, Oct. 27, 1866; MSS. Inst., Spain. See
same to same, Dec. 20, 1866, inclosing mediating action of House of Repre-
sentatives, and making specific proposals of mediation ; and sec also same
to same, Feb. 25, 1867, Aug..27, 1868.

Undue diplomatic pressure upon two South American belligerents
to secure their acceptance of the good offices of the United States as a
mediator is to be discountenanced.

Mr. Seward, Sec. of State, to Mr. Asboth, Buenos Ayres, April 1, 1867 ; MSS.
Inst., Arg. Rep.

" We were asked by the new Government to use our good offices,
jointly with those of European powers, in the interests of peace. An-
swer was made that the established policy and the true interests of
the United States forbade them to interfere in European questions
jointly with European powers. 1 ascertained, informally and unoffi-
cially, that the Government of North Germany was not then disposed to
listen to such represetitations from any power, and though earnestly
wishing to see the blessings of peace restored to the belligerents, with
all of whom the United States are on terms of friendship, I declined, on
the part of this Government, to take a step which could only result in
injury to our true interests, without advancing the object for which our
intervention was invoked. Should the time come when the action of
the United States can hasten the return of peace, by a single hour, that

213

^S 4!).] INTERVENTION. [CHAP. Ill

action will be heartily takeu. I deemed it prudent, iu view of the num-
ber of i)ers()ns of German and French birth living in the United States,
to issue, soon after official notice of a state of war had been received
from both belligerents, a proclamation, defining the duties of the United
States as a neutral and the obligations of persons residing within their
territory, to observe their laws and the laws of nations. This procla-
mation was followed by others, as circumstances seemed to call for
them. The people, thus acquainted, in advance of their duties and ob-
ligations, have assisted in preventing violations of the neutrality of the
United States."

President Grant's Second Annual Messajie, 1870. See infra, § 105.

,Ou application of the German Government, the United States lega-
tion in China was instructed in 1870 to use its good offices to aid Ger-
many in securing from China the use of the island of Kulangsen as a
coaling station, not seeking, hovjpver, to acquire the sovereignty
tliereof.

Mr. Fish. Sec. of State, to Mr. Low, May 2G, lb70 ; MSS. lust., Chin.i.

" Washburne telegraphs that France requests United States to join
other powers in effort for peace. Uniform j)olicy and true interest of
United States not to join European powers in interference in European
questions. President strongly desires to see war arrested and bless-
ings of peace restored. If Germany also desires to have good offices
of United States interposed, President will be glad to contribute all
aid in his power to secure restoration of peace between the two great
j)0wer8 now at war, and with whom United States has so many tradi-
tions'of friendship. Ascertain if IsTorth Germany desires such offices,
but without making the tender thereof unless assured they will be ac-
cepted."

Mr. Fish, Sec. of State, telegram to Mr. Bancroft, Sept. 9, 1870; MSS. Inst.,
Germ. ; For. Rel., 1870.

" The reasons which you present against an American intervention
between France and Germany are substantially among the considera-
tions which determined the President in the course and policy indicated
to you in the cable dispatches from this office on the 9th instant, and in
rejecting all idea of mediation unless upon the joint request of both of
the warring i)owers.

" It continues to be the hope of the President, as it is the interest of
the people of this country, that the unhap])y war in which France and
North Germany are engaged should find an early end.

•' This (lovernment will not express any opinion as to the terms or
conditions upon which a peace may or should be established between
two Governments equally sharing its friendship, but it is hoped that the
l»rolongation of the war may not find its cause either in extreme demands
on the one side, or extreme sensitiveness on the other side.
214

CHAP. III.] MEDIATION. [§ 49.

, " So far as you can consistently and witliout my official interposition
ol' advice or of counsel, it is hoped that you will lose no proper ojipor-
tunity to indicate the wishes and hopes of the President and of the
American people as above rei)resented, and to contribute what you may
to the presentation of such terms of peace as befit the greatness and the
power which North Germany has manifested, and as shall not be humil-
iating or derogatory to the pride of the great people who were our
earliest and fast ally."

Mr. Fish, Sec. of State, to Mr. VVaHlibume, Sept. 30, 1870 ; MSS. Inst., France ;
Foi-. Rel.,1870.

" I have the honor to acknowledge the receipt of your note to this
Dei)artment, dated the 8th instant, in which you refer to previous cor-
respondence in reference to the inquiry you made in June last, by direc-
tion of the Marquis of Salisbury, as to whether the Government of the
United States would be disposed to join Great Britain and Germany
in offering their mediation with a view of concluding the war between
Chili and Peru. You also mention the reply of this Government to
that ]>roposal, expressing its readiness to assist in the restoration of
peace between the belligerents whenever its good oflBces might be use-
fully proffered, but not favoring a premature effort nor an effort in com-
bination with other neutral powers which would carry the impression
of dictation or coercion in disparagement of belligerent rights.

" You say, furthermore, that you have recently observed statements
in American newspapers to the effect that this Government has iu-
structe<l its ministers at Lima and Santiago de Chili to tender the good
offices of the United States to secure an honorable settlement of the
<lifficulties between the belligerent Governments, whenever they shall
intimate that such friendly services will be accepted with that end in
view, and j^ou express the hope that I will think myself justified in ac-
quainting you, for the information of Her Majesty's Government, as to
whether the newspaper statements to which you refer are founded on
fact, and whether the hope may be entertained that the steps thus re-
ported to have been taken by the Government of the United States
may lead to the conclusion of peace between the Republics of Chili and
Peru.

" In reply, I have to say that I have delayed answering your note
above mentioned, which was brought to my notice on my return to
Washington, on the 16th instant, until I could examine the correspond-
ence with the several ministers at Peru, Chili, and Bolivia, which had
taken place during my absence.

"The statements in the newspapers to which you refer, have not specif-
ically attracted my attention. I am able to say, however, that our min-
isters have given and are giving attention to the wishes of this Govern-
ment to proffer its good offices in favor of peace at the earliest indication
of the readiness of the belligerents to consider such good offices accept-
able.

215

^S 49.] INTERVENTION. [CHAP. III.

''This purpose this Government will not fail to pursue, and with
good hopes that the events of the war may soon dispose all the bellig-
erents to desire its honorable conclusion. It would be premature to
anticipate an immediate opportunity for a defiuite proposal of peaceful
methods tlirough the good offices of this Government which would gain
the concurrent consent of the three belligerents.

" It will give me pleasure early to acquaint you, for the information
of your Government, with any decisive indications of a disposition to
make a peaceful solution of the unhappy controversy through the in-
i^erposed friendship of this Government."

Mr. Evarts, Sec. of State, to Sir E. Thornton, Sept. 24, 1879 ; MSS. Note, Gr. Brit. ;
For. Ki-1., 1879.

" The war between Peru, Bolivia, and Chill still continues. The
United States have not deemed it proper to interpose in the matter
fnrtlier than to convey to all the Governments concerned the assurance
tliat the friendly offices of the Government of the United States for the
restoration of peace upon an honorable basis will be extended, in case
the l)elligerents shall exhibit a readiness to accept them."
President Hayes's Thirrt Annual Message 1879.

"The war between the Rci)ublic of Chili, on the one hand, and the
allied K('j)nblics of Peru and Bolivia on the other, still continues. This
Government has not felt called upon to interfere in a contest that is within
the belligerent rights of the parties as independent states. We have,
however, always held ourselves in readiness to aid in accommodating
their diflference, and have at diflerent times reminded both belligerents
of our willingness to render such service.

" Our good oflices, in this direction, were recently accepted by all the
belligerents, and it was hoped they would prove efficacious ; but I re-
gret to announce that the measures which the ministers of the United
States at Santiago and Lima were authorized to take, with the view to
bring about a peace, were not successful. In the course of the war some
questions have arisen affecting neutral rights ; in all of these the min-
i.sters of the Unitnd States have, under their instructions, acted with
l»romptness and energy in protection of American interests."
President Hayes's Fourth Annual Message 1880.

" For some years past a growing disposition has been manifested by
certain states of Central and South America to refer disputes aff"ecting
grave questions of international relationship and boundaries to arbitra-
tion rather than to the sword. It has been, on several such occasions^
a source of profound satisfaction to the Government of the United States
to see that this country is, in a large measure, looked to by all the
American i)owers as their friend and mediator. The just and impartial
counsel of the President in such cases has never been withheld, and,
216

CHAP. III.] MEDIATION. [§ 49.

liis efforts have been rewarded by the prevention of sauguinarj- strife or
angry contentions between peoples whom we regard as brethren."

Mr. Blaine, Sec. of State, to Mr. Morgan, Nov. 29, 1881 ; MSS. Inst., Mexico.

" Tlie war between Peru and Bolivia, on the one side, and Chili on
tlje other, began more than three years ago. On the occupation by
Cliili in 1880 of all the littoral territory of Bolivia, negotiations for peace
were conducted under the direction of the United States. The allies
refused to concede any territory, but Chili has since become master of
the whole coast of both countries and of the capital of Peru. A year
since, as you have already been advised by correspondence transmitted
to you in January last, this Government sent a special mission to the
belligerent powers to express the hope that Chili would be disposed to
accept a money indemnity for the expenses of the war and to relinquish
her demand for a portion of the territory of her antagonist.

" This recommendation, which Chili declined to follow, this Govern-
ment did not assume to enforce ; nor can it be enforced without resort
to measures which would be in keeping neither with the temper of our
people nor with the spirit of our institutions.

" The power of Peru no longer extends over its whole territory, and,
in the event of our interference to dictate peace, would need to be sup-
plemented by the armies and navies of the United States. Such inter-
ference would almost inevitably lead to the establishment of a protect-
orate — a result utterly at odds with our past policy, injurious to our
present interests, and full of embarrassments for the future.

" For effecting the termination of hostilities upon terms at onc<^ just
to the victorious nation and generous to its adversaries, this Govern-
ment has spared no eftbrts save such as might involve the complications
which I have indicated.

" It is greatly to be deplored that Chili seems resolved to exact such
rigorous conditions of peace, and indisposed to submit to arbitration
the terms of an amicable settlement. No peace is likely to be lasting
that is not sufficiently equitable and just to command the approval of
other nations."

Piesideut Arthur's Second Annual Message, 1882.

" The traditional attitude of the United States towards the sister Ee-
publics of this continent is one of peace and friendly counsel.

" When as colonies they threw off their political connection with Eu-
rope, we encouraged them by our sympathies. By the moral weight of
our official declarations we prevented intervention, either to restore old
political connections with Europe or to create new ones. The policy
we then adopted has been since maintained. While we would draw
them nearer to us by bonds of mutual interest and friendly feeling,
our sole political connection springs from the desire that they should
be prosperous and happy under the republican form of government

217

§ 49.] INTERVENTION. [CHAP. III.

\\\\\rh tlu'v ;ni«l we, have clioseii. We aim to bo regarded as a disin-
terested I'liend and eoimselor, but we do not assume to impose our
wishes upon them, or to act as arbitrator, or umpire, in their disputes
uuless moved to it by the wish of botli parties, or by controlling inter-
ests of our own."

Mr. rrelin-jbuysen, Sec. of State, to Mr. Trescot, Feb. 24, 1882; MSS. Inst.,
Chili.

" It seems to the President that the time has come when an effort for
peace between the South American Republics can be made with some
reasonable hope of success. He has accordingly instructed Mr. Logan
upon tlie subject, giving him a large measure of discretion.

"This instruction is taken to you by Mr. Logan, who is directed to
confer with you before proceeding to Santiago. You are aware that
while Mr. Trescot was in Peru he visited Montero, and recognized him
as the head of the Eepublic. It may now be assumed that this act has
received the sanction of the Department. It will, therefore, be proper
tliat after conferring with Mr. Logan and taking every possible precau-
tion to prevent the difference between our legations in Chili and Peru,
which have unhapinly thwarted the policy and lessened the influence
of the United States in the past, you will proceed at an early day to join
the only Government in Peru which is now recognized by the United
States.

"It is understood that the principal diflticulty in the way of opening
negotiations is the disinclination of the Chilian Government to recog-
nize Montero and his Government. Mr. Logan's first efforts at San-
tiago will be directed to removing this obstacle and to securing at least
such provisional recognition as may be involved in the fact of negotia-
tions. If this shall be found to involve the calling together of a con-
gress by President Montero, Mr. Logan will endeavor to prevent any
Chilian opposition to it.

*' Meanwhile it will be your duty to impress upon President Montero
and his advisers the necessity of recognizing these severe results of un-
successful war.

" The interest which the United States takes in the fortunes of Peru,
and the great desire which they have to preserve its autonomy, and as
much of its territory and wealth as is consistent with the reasonable
rights and demands of Chili, must not be interpreted into a purpose to
stand by Peru in refusing and resisting such demands. You must make
that clear. If the voice of the United States could he listened to, the
war would be ended by the payment of a money indemnity without sac-
rificing territory. But the voice of the United States will not be listened
to while .speaking only such words. Chili will not abandon all the ac-
quisitions that the fortunes of war have given her. Unless Peru con-
sents to negotiate on the basis of a surrender of territory, the United
States are ])owerless to help her.
218

CHAP. Ill] MEDIATION. [§ 49.

" Tf Pern consents to negotiate on the basis of a cession of territory,
30U will acquaint President Montero's Government generally with the
fact that Mr. Logan is instructed in that event to secure from Chili the
most favorable terms which the moral influence of the United States
can obtain.

" The form in which the two belligerents will approach each other, if
they consent to enter upon negotiations, must necessarily be left much
to opj)ortunity and to the judgment of Mr. Logaii. You will confer
with him freely as to the feeling of Peru, and he must decide whether
he can obtain terms which he is willing to submit to Peru; whether the
ofl'er must first come from Peru or from Chili is a ])oint which must be
left for liis decision. He is authorized to go to Peru at the proper time
and confer witb you. In approaching the Government of Peru he is
directed to avail himself always of your intermediary services.

" J inclose for your guidance a copy of the instructions to Mr. Logan,
and also a copy of the instructions to Mr. Maney.

" In case matters happily proceed so far as to call for serious negotia-
tions, Mr. Maney is instructed to do whatever may be advised by you
or Mr. Logan, or both, and to take no steps until so requested."

Mr. Frelingbuysen, Sec. of State, to Mr. Partridge, June 26, leH2; MSS. Inst.,
Peru ; For. Rel., 1882.

A concerted movement for this purpose will not be approved. The
Unitefl States minister at Lima having, early in 1883, united with the
representatives of France, Great Britain, and Italy, to bring about a
joint intervention in South American aflairs, tMs action was disapproved
by the Secretary of State.

Mr. Frelinghuyseu, Sec. of State, to Mr. Logan, March 7, 1883 ; MSS. Inst.,
Chili ; same to same, April 2, 1883. See infra, § 102.

A volunteer i^roposition by the minister of the United States and
other Ibreigu ministers at Hayti, to mediate between the Haytiau Gov-
ernment and insurgents, cannot be sustained by the Government of the
United States.

Mr. J. Davis, Asst. Sec, to Mr. Laugston, June 4, 1883; MSS. lust., Hayti; For.
Rel., 1883.

I\lr. Hall is informed that, while the United States Government is
prei)ared to use its influence in averting a conflict and to promote peace,
and deems advisable a voluntary combination of interests of the Central
American states, no display of force on the part of any one or more
states to coerce the others can be countenanced.

Mr. Bayard, Sec. of State, to Mr. Hall, March 10, 1885. MSS. lnst.,Cen. Am. ;
For. Rel., 1885.

" England again offered mediation between the United States and
Mexico in 1847, but the offer was not accepted by either party. There
have been instances of offers of mediation in civil wars; but they pre-

219

^W9.] INTERVENTION. [CHAP. III.

sent cnses of such delicacy and difficulty as to Lave been seldom ac-
cepted, or, if accepted, successful."

Daua's Wlieatou, $ 73, note 40.

"There is u distinction between the case of good offices and of mediator.
The (leiiiaud of ^'ood ollices or their acceptance does not confer the right
of mediator. (Kliiber, Droit des Gens Moderne de I'Europe, Part II,
tit. 2, § 1., ch. 2, § 160.) The offer of Russia to mediate between the
United States and Great Britain, in the war of 1812, was at once ac-
cei)ted by the former; and in order to avoid delays incident to the dis-
tance of the parties. ])ienipotentiaries were commissiomd to conclude
a treaty of peace with persons clothed with like power on the part of
Great Britain. (Wait's State Papers, Vol. IX, p. 223 ; President Mad-
ison's message, May 25, 1813.) The refusal of Great Britain, at that
time in tlie closest alliance with Eussia, can only be accounted for by
the supposed accordance between the United States and Russia in ques-
tions of maritime law. Sir James Mackintosh considered the rejection
of the proffered mediation, whereby hostilities were unnecessarily pro-
longed, the less justifiable, as 'a mediator is a common friend, who
counsels both parties with a weight proportioned to their belief in his
integrity an<i their respect for his power. But he is not an arbitrator,
to whose decisions they submit their differences, and whose award is
binding on them. Hansard's Parliamentarv Debates, Vol. XXX, p.
626, April 11, 1815."

Lawrence's Wheaton, ed. 1863, p. 495.

As to mediation of Enssia in war of 1812, see 3, Am. State Papers; For. Eel.,

623 Jf.
As to the attitude assumed by the successive administrations of Adams and

Jackson to Bolivar, see instructions of Mr. Van Buren, Sec. of State, to Mr.

Moore, April 9, 1829; same to same, Dec. 12, 1829; MSS. Inst., Am. States.
A part of the correspondence between Buenos Ayres and the United States in

reference to mediation in respect to the differences between Buenos Ayres

and France will be found in the British and Foreign State Papers for 1842-3,

vol. 31, 790/.
As to San Salvador's difficulties with British authorities, see Senate Ex. Doc.

No. 43, 31 St Cong., 2d sess.
As to the oiler of friendly offices by the Government of the United States to

terminate (he war raging in South America between Paraguay, on the one

side, and Brazil, the Argentine Republic, and Uruguay on the other, see

Mr. Sewrtrd, Sec. of State, to Mr. Asboth (Buenos Ayres), Dec. 20, 1866.

MSS. inst., Arg. Rt^p.
As to mediation between Spain and Peru, see Mr. Seward, Sec. of State, to Mr.

Hovey, Dec. 20, 1866; MSS. Inst., Peru.
As to mediation between Spain and the allied South American republics, see

Mr. Fish, Secretary of State, to Mr. Kilpatrick, Jan. 15, 1868 ; MSS. Inst.,

Chili.
For other instances of mediation see also Mr. Evarts to Mr. Osborne, Dec. 27,

1880; Mr. Blaine to Mr. Osborne, June 13, 1881; Mr. Blaine to Mr. Kil-
patrick, June 15, 1881 ; MSS. Inst., Chili.
As to mediation to renew diplomatic intercourse between France and Mexico,

see Mr. Fish, Sec. of State, to Mr. Nelson, Dec. 19,20, 1872; MSS. Inst., Mex.

220

CHAP. III.] NECESSITY. [§ 50.

The armistice between Spain and the allied republics of Bolivia, Chili, Ecua-
dor, and Peru, concluded in 1871, under the mediation of the United States,
will be found in the British and Foreign State Papers for 1874-5, vol. G6.

As to mediation between Holland and Venezuela, see Mr. Fish to Mr. Birney,
March 9, 1876; June 14, 187G; MSS. Inst., Netherlands.

As to mediation between China and Japan, see Mr. Evarts, Sec. of State, to Mr.
G. F. Seward, March 4, 1880 ; MSS. Inst., China.

As to mediation between Mexico and Guatemala, see Mr. Blaine to Mr. Morgan,
Nov. 2S, quoted infra, ^ 58.

As to mediation between Chili and Peru, see infra, $ .^9.

A summary of modern mediations will be found in Calvo, Droit Int., 3d ed., 2
vol., 536 flP.

{6) NECESSITY, AS WHERE MARAUDERS CAN BE CHECKED ONLY BY

SUCH INTERVENTION.

§ 50.

When there is no other way of warding off a perilous attack upon
a country, the sovereign of such country can intervene by force in the
territory from which the attack is threatened in order to prevent such
attack.

Supra, § 17.

By the law of nations a piratical settlement in a remote island, not
under the control of any civilized nation, may be broken up by United
States cruisers, and the offenders seized and sent to the United States
for trial.

Mr. Livingston, Sec. of State, to Mr. Baylies, April 3, 1832; MSS. Inst., Am.
States. See infra, § 50o.

" Unfortunately, many of the nations of this hemisphere are still self-
tortured by domestic dissensions. Revolution succeeds revolution ; in-
juries are committed upon foreigners engaged in lawful pursuits. Much
time elapses before a government sufficiently stable is erected to justify
expectation of redress. Ministers are sent and received, and before the
discussions of past injuries are fairly begun, fresh troubles arise j but
too frequently new injuries are added to the old, to be discussed together
■with the existing government, after it has proved its ability to sustain
the assaults made upon it, or with its successor, if overthrown. If this
unhappy condition of things continue much longer, other nations will
be under the painful necessity of deciding whether justice to their suf-
fering citizens does not require a prompt redress of injuries hy their
own power, without waiting for the establishment of a government com-
petent and enduring enough to discuss and make satisfaction for them."
President Jackson's Seventh Annual Message, 1835.

" It is a fundamental i)nnciple in the laws of nations that every state
or nation has full and complete jurisdiction over its own territory to the
exclusion of all others, a principle essential to independence, and there-

221

^S jOa.] INTERVENTION. ' [CHAP, III.

tore lii'ld most sacred. It is accordingly laid down by all wiiters ou
tlntsf laws who treat of the subject, that nothiug short of extreme nc-
cef<si(y v:\u Justify a belli^''erei)t in entering with an armed force on the
territory of a neutral power, and, when entered, in doing any act wh.icli
is not forced on. him by the like necessity which justitied the entering."

Mr. Calhoun's speech on McLeocl's case, June 11, 1^41 ; 3 Calhoun's Works, (W5.
(See supra, v> 21, as to McLeocFs case ; infra, ij 50, c, as to the case of the
Caroline.)

As to expenses incurred liy Texas in repelling invasions of Indians and Mexicans,
see S. Ex. Doc. 19, Forty-fifth Congress, second session, .January 22, 1878.

As to depredations by reason of incursions of Mexicans and Indians, and resolu-
tion of Texas claiming indemnity for losses thereby sustained, and asking
to be reimbursed for expenses incurred in defending frontiers, see H. Mis.
Doc. 37, Forty-fourth Congress, first session, July 17, 1876; H. Mis. Doc.
185, Forty-fourth Congress, first session.

For report of special committee, recommending that a military force be stationed
on the Rio Grande, and that the President authorize the troops, when in
close pursuit of the raiders, to cross to the Mexican side and use such
measures as will recover the stolen property and prevent such raids, see H.
Rep. 343, Forty-fourth Congress, first ses.sion.

For testimony taken by Committee on Military Affairs, see H. Mis. Doc. 64
Forty-fifth Congress, second session, January 12, 1878.

As to pursuit of deserters in Canada, see Brit, and For. State Papers, 1860-'l,
vol. 51.

As to treaty with Mexico for reciprocal pursuit of raiders, see sujara, § 19.

(a) Amelia islaxd.
§ 50a.

Amelia Island, at the mouth of St. Mary's River, and at that time in
Spanish territory, was seized in 1817 by a band of buccaneers, under
the diiectiou of an adventurer named McGregor, who in the name of
the insurgent colonies of Buenos Ayres and Venezuela preyed indis-
crimiuatelv on the commerce of Spain and of the United States. The
Spanish Governuient not being able or willing to drive them ofl', and
the nui.sance being one which required immediate action, President
:Monroe called his Cabinet together in October, 1817, and directed that
a ves.sel of war should proceed to the island and expel the marauders,
destroying their works and vessels.

•' In the summer of the present year, an expedition was set on foot
East Florida V)y per.sons claiming to act under the authority of some
of the colonies, who took possession of Amelia Island, at the mouth of
St. Mary's Kiver, near tlie boundary ot the State of Georgia. As the
province lies eastward of the Mississippi, and is bounded by the United
States and the ocean on every side, and has been a subject of negoti-
ation with the Government of Spain, as an indemnity for losses by spo-
liation or in exchange for territory of equal value westward of the
Mississippi, a fact well known to the world, it excited surprise that any
countenance should be given to this measure by any of the colonies.
As it would be difficult to reconcile it with the friendly relations exist-
ing between the United States and the colonies, a doubt was enter-
222

CHAP. III.] AMELIA ISLAND. [§ 50a.

tiiiiKwi whethei' it had been authorized by them or any of them. This
doubt has j^ained stieiigth by the circumstances which have uiifohled
themselves in the prosecution of the enterprise, which have marked it
as a mere private unauthorized adventure. Projected and commenced
with an incompetent force, reliance seems to have been i)hiced on what
might be drawn, in defiance of our laws, from within our limits; and, of
late, as their resources have failed, it has assumed a more marked char-
acter of unfriendliness to us, the island being made a channel for the
illicit introduction of slaves from Africa into the United States, an asy-
lum for fugitive slaves from the neighboring States, and a port for
smuggling of every kind.

" A similar establishment was made at an earlier period by persons of
the same description, in the Gulf of Mexico, at a place called Galves-
ton, within the limits of the United States, as we contend, under the
cession of Louisiana. This enterprise has been marked in a more sig-
nal manner by all the objectionable circumstances which characterized
the other, and more particularly by the equipment of i^rivateers, which
have annoyed our commerce, and by smuggling. These establishments,
if ever sanctioned by any authority whatever, which is not believed,
have abused their trust and forfeited all claims to consideration. A
just regard for the lights and interests of the United States required
that they should be suppressed, and orders have accordingly been
issued to that efl'ect. The imperious considerations which produced
this measure wilj be explained to the parties whom it may in any de-
gree concern."

President Monroe's First Annual Message, 1817.

President Monroe's Messages of Dec. 15, 1817, Jan. 13, 1818, March 25, 1818,

as to Amelia Island, are given in 11 Wait's State Papers, 343.
On the same topic, see report of House Com. on For. Eel., Jan. 10, 1818, 4 Am.

State Fitp. ; For. Eel., 132.

" You will have been informed through the channel of the public
prints of the manner in which Amelia Island has in the course of the
last summer been occupied by an assemblage of adventurers under
various commanders, and with commissioners, real or pretended, from
several of the South American insurgent governments. You must have
beard also of the feeble and ineffectual attempt made by the Spanish
commanding authorities in East Florida to recover possession of the
island. A similar band of desperate characters from various nations,
and presumably impelled by motives of plunder alone, have formed a
lodgment at Galveston, which we consider within the limits of the
United States. These places have not only been consequently made
receptacles for privateers illegally fitted out from our ports, but the
means of every species of illicit traflBc, and especially of introducing
slaves illegally into the United States. The President has therefore
determined to break up those settlements, which are presumed to have
been made without proper authority from any Government ; and which

223

^^ 50&.] INTERVENTION. [CHAP. III.

if ;mlli()riz('(l by iiny Government, have assumed an attitude too per-
nieious to tlie jieace and prosperity of this Union and of its citizens to
l)e tolcr.ited. The orders for breaking them up have been given, and
are in a tniin of exe(5ution. Possession will be taken of Galveston as
within the limits of the United States, and perhaps of Amelia Island,
to prevent its being taken again by similar adventurers for the same
])MriK>s('s, Spain being notoriously unable either to retain possession of
it against them or to recover it from them."

Mr. A<lanis, Sec. of State, to Mr. Erving, Nov. 11, 1H17 ; MSS. Inst. Ministers.

'• When an island is occupied by a nest of pirates, harassing the com-
merce of the United States, they may be pursued and driven from it,
by authority of tlie United States, even though such island were nom-
inally under the jurisdiction of Spain, Spain not exercising over it
any control."

Mr. Adams, Sec. of State, to Mr. Hyde De Neiiville, Jan. 27, 1818; MSS. For.
Leg. notes. See President Monroe, confidential to Mr. Madison, Nov. 24,
Dec. 22, 1817 ; Madison MSS., Dep. of State.

A detailed account of McGregor's occupation of, and filibustering expeditions
from, Amelia Island is given m 2 Parton's Jackson, 421^.

"No dissatisfaction has been expressed here at our occupation of
Amelia Island."

Mr. Rush, Minister at London, to Mr. Adams, Sec. of State, March 2, 1818 ; MSS.
Dispatch, Gr. Brit.

President Monroe's announcement that he had authorized expeditions
against Amelia Island and Galveston for the purpose of suppressing
the bands of buccaneers who were harbored in those places was fol-
lowed by protests, not merely from Unis, the Spanish minister at Wash-
ington, but from Pazos, the agent of the as yet unrecognized Spanish-
American colonies. The Secretary of State having declined to confer
otlieially with Pazos on the subject, he presented a petition to the
House of Kepresentatives. This petition, however, though it had the
su|»port of the Speaker, Mr. Clay, was laid on the table on March 14,
IS 18, by a vote of 124 to 28.

The possession taken by the United States of Amelia Island, in
Florida, gave it a possessory title, for which it was accountable only to
Spain.

Mr. Gallatin, minister to France, to Baron Pasquier, French minister of foreign

aUairs, June 28, 1821 ; 2 Gallatin^ writings, 187.
As to de facto government of Amelia Island, see siipra, § 7.

(6) PENSACOI.A AND OTHER FlORIBA POSTS.

§506.

In 1815, under orders of Mr. Monroe, measures were taken for the

destruction of a fort held by outlaws of all kinds on the Appalachicola

Ptiver, then within the Spanish Territory, from which parties had gone

forth to pUlage within the United States. The governor of Pensacola

224

CHAP. III.] SEMINOLE WAR. [§ 50&.

had been called upon to suppress tbe evil and punish the marauders,
but had refused ; and, on his refusal, the Spanish Territory was en-
tered, and the fort attacked and destroyed on the ground of necessity.

See President Monroe's Second Annual Message, 1818.

" In authorizing Major-General Jackson to enter Florida in pursuit
of the Seminoles, care was taken not to encroach on the rights of Spain.
I regret to have to add that, in executing this order, facts were dis-
closed respecting the conduct of the officers of Spain in authority there,
in encouraging the war, furnishing munitions of war, and other sup-
plies to carry it on, and in other acts not less marked, which evinced
their participation in the hostile purposes of that combination, and jus-
tified the confidence with which it inspired the savages that by those
officers they would be protected. A conduct so incompatible with the
friendly relations existing between the two countries, particularly with
the positive obligation of the fifth article of the treaty of 1795, by which
Spain was bound to restrain, even by force, those savages from acts of
hostility against the United States, could not fail to excite surprise.
The commanding general was convinced that he should fail in his ob-
ject, that he should, in effect, accomplish nothing, if he did not deprive
those savages of the resource on which they had calculated, and of the
Ijrotection on which they had relied in making the war. As all the
documents relating to this occurrence will be laid before Congress, it is
not necessary to enter into further detail respecting it.

"Although the reasons which induced Major-GeneralJackson to take
these posts were duly appreciated, there was nevertheless no hesitation
in deciding on the course which it became the Government to pursue.
As there was reason to believe that the commanders of these posts
had violated their instructions, there was no disposition to impute to
their Government a conduct so unprovoked and hostile. An order was
in consequence issued to the general in command there, to deliver the
posts — Peusacola, unconditionally, to any person duly authorized to re-
ceive it, and Saint Mark's, which is in the heart of the Indian country,
on the arrival of a competent force to defend it against those savages
and their associates."

President Monroe's Second Annual Message, 1818. See President Monroe to Mr.
Madison, July 20, 1818, Madison MSS., Dep. of State.

Necessity justifies an invasion of foreign territory so as to subdue an
ex])ected assailant;, and on this ground may be sustained General
Jackson's attack on Pensacola.

Mr. J. Q. Adams, 4 J. Q. Adaois's Mem., 113.

"The Executive Government have ordered, and, as I conceive, very
properly, Amelia Island to be taken possession of. This order ought
to be carried into execution at all hazards, and simutaneously the whole
of East Florida seized and held as indemnity ior tlie outrages of Spain
upon the pioperty of our citizens. * * * The order being given for
the possession of Amelia Island, it ought to be executed, or our enemies,

S. Mis. 102— VOL. 1—15 22.5

§ 50&.] INTERVENTION. [CHAP. III.

iufvnuiJ (I lid external^ will use it to the disadvantage of our Govermmnt.
If our frooji.s enter the territori/ of Spain in pur.sidt of our Indian enen:y,
all opposition that they meet with 'hiust he imt down, or we will be involved
in danger and disgrace."

General JacksdU to Mr. Monroe, Jan. 6, 1818, MSS. Monroe Papers.

" I could adopt no other way to put 'rm end to the ?r«r ' but by possess-
ing; niy.sflf of the stronghold that was a refuge to the enemy, and af-
forded them the means of offense."

General Jackson's (1818) letter to Sec. of War. from papers of Mr. Geo. W.
Campbell, quoted 2 Parton's Jackson, 500.

General Jackson put his seizure and occupation of the fort at Saint
Mark's, which was within Spanish territory, expressly on the ground of
necessity. In his letter to the governor of Saint Mark's, which he sent
by his aidede-can^p. Lieutenant Gadsden, he declared that the Spanish
garrison, from its feebleness, would be unable to resist the attacks of
Indians who intended to make it a base for their operations against the
United States.

"To prevent the recurrence of so gross a violation of neutrality, and
to exclude our savage enemies from so strong a hold as Saint Mark's, I
deem it expedient to garrison that fortress with American troops until
the close of the present war. This measure is justifiable on the immu-
table i)rinciples of self-defense, and cannot bu,t be satisfactory, under
existing circumstances, to his Catholic Majesty the King of Spain.
Under existing treaties between the two Gov^ernmeuts, the King of
Spain is bound to preserve in peace with the citizens of the United
States, not only his own subjects, but all Indian tribes residing within
his territory. When called upon to fulfill that part of the treaty in re-
lation to a savage tribe who have long depredated with impunity on the
American IVontier, incompetency is alleged, with an acknowledgment
that the same tribe have acted in open hostility to the laws, and invaded
the rights of His Catholic Majesty. As a mutual enemy, therefore, it is
expected that every facility will be afforded by the agents of the King
of Spain to chastise these lawless and inhuman savages. In this light
is the possession of Saint Mark's by the American forces to be viewed."

2 Parton's Jackson, 451.

" When they (European powers) know the whole of the affair of Pen-
sacola, I have no doubt they will withdraw all idea of intermeddling
between Spain and us. I trust we shall be able to avoid entanglements
with the European alliance. We may let them alone, for they cannot
conquer the South Americans."

Mr. Jefferson to Mr. Monroe, President, Sept. 17, 1618; MSS. Monroe Papers,
Dep. of State.

When the sovereign of a territory permits it to be made the base of
hostilities by outlaws and savages against a country with which such
sovereign is at peace, the government of the latter country is entitled,
as a matter of necessity, to pursue the assailants wherever they may
be, and to take such measures as are necessary to put an end to their
aggressions.

Mr. Adams, Sec. of State, to Mr. de Onis, Nov. 30, 1818 ; MSS. For. Leg. Notes.
226

CHAP. III.] STEAMBOAT CAKOLINE. (1838.) [§ 50c.

Mr. Adams's defense of GeneralJacksou's course in the Semiuole war,
to which, after some modificatious, he obtained the assent of Mr. Mon-
roe and of the Cabinet, is a paper which, though of extraordinary abil-
ity, is of too great length to be here republished. The point of inter-
national law, above stated, is the exclusive basis on which it rests.

As to Jackson's action in capturing Pensacola, see 3 Schouler's Hist.
U. S., 74. The President, after consulting the Cabinet, directed Pen-
sacola to be given bacii to Spain.

As to effect of taking of Pcusacola ou France, see dispatch of Mr. Gallatin to
Mr. J. Q. Adams, July 22, 1818 ; 2 Gallatin's writings, G9.

The course of Mr. Monroe in sustaining General Jackson in this movement la
discussed in 1 Benton's Thirty Years in the Senate, 167.

General Jackson's corresijondence in reference to the war conducted by him in
Florida, is given in 1 Amer. State Papers, MLsc, 801^.

§50c.

"The destruction of the steamboat Caroline at Schlosser, four or five
years ago, occasioned no small degree of excitement at the time, and
became the subject of correspondence between the two Governments.
That correspondence having been suspended for a considerable period,
was renewed in the spring of the last year, but no satisfactory result
having been arrived at, it was thought proper, though the occurrence
had ceased to be fresh and recent, not to omit attention to it on the
present occasion. It has only been so far discussed in the correspond-
ence now submitted as it was accomplished by a violation of the terri-
tory of the United States. The letter of the British minister, while at-
tempting to justifj" that violation upon tlie ground of a ])ressing and
overruling necessity, admitting, nevertheless, that, even if justifiable,
an apology was due for it, and accompanying this acknowledgment
with assurances of the sacred regard of this Government for the invio-
lability of national territory, has seemed to me suflicicnt to warrant
forbearance from any further remonstrance against what took place as
an aggression on the soil and territory of the country."

President Tyler's Message, transmitting the Treaty of Washington to the Sen-
ate, Aug. 11, 1842; G Webster's Works, 355.

For notices of the capture of the Caroline, wee President Van Bureu's Messages
of April 5, 1838, Feb. 6, 1839, Dec. 31, 1840 ; House Ex. Doc. 302, •2r,th
Cong., 2d sess. ; House Ex. Doc. No. 183, 25th Cong., 3d sess. ; House Ex.
Doc. No. 33, 26th Cong., 2d sess. For correspondence, see Brit, and For.
State Pap. for 1841-2, vol. 30, 173. For discussions of the case, see 1 Phil. Int.
Law, 3d ed., 315; 3d id., 60; Hall's Int. Law, 246, 283.

Mr. Webster's report of Jan. 7, 1843, giving correspondeuce to that date in re-
spect to the steamer Caroline, is in Senate Doc. No. 99, 27th Cong., 3d sess.

Mr. J. Q. Adams, when discussing the Caroline case in the House of
Representatives, said :

'•I take it that the late affair of the Caroline was in hostile array
against the British Government, and that the parties concerned in

227

§ 50c.] INTERVENTION. [CHAP. III.

it were employed in acts of war ajjainst it ; and I do uot subscribe to
the very learned opinion of the chief justice of the supreme court of
New York (not, I liear, the chief justice, but a judge of the supreme
court) that there was no act of war committed. Nor do I subscribe
to it that every nation goes to war only on issuing a declaration or
proclamation of war. This is not the fact. Nations often wage war
for years without issuing any declaration of war. The question is not
here upon a declaration of war, but acts of war, and 1 say that in the
judgment of all impartial men of other nations we shall be held, as a
nation, responsible; that the Caroline, then, was in a state of war
against Great Britain, for purposes of war, and the worst kind of war —
to sustain an insurrection. I will not say rebellion, because rebellion is
a crime, and because I have heard them talked of as patriots."

2 Benton's Thirty Years in the Senate, 289. See further ou this point, supra, § 21.

Mr. Benton, in commenting on Mr. Adams's speech, said :
"The war ground they (Mr. Adams and Mr. Cushing) assumed could
only apply between Great Britain and the insurgents. She had no war
with the United States. The attack on the Caroline was an invasion of
the territory of a neutral power at peace with the invader. That is a
liberty not allowed by the law of nations; not allowed by the concern
which any nation, even the most inconsiderable, feels for its own safety
and its own self-respect. * * No power allows it. That we have
seen in our own day in the case of the Poles, in their last insurrection,
driven across the Austrian frontier by the Russians, and the pursuers
stopped at the line, and the fugitive Poles protected the instant they
had crossed it ; and in case of the late Hungarian revolt, in which the
fugitive Hungarians, driven across the Turkish frontier, were protected
from pursuit.-'

2 Benton, ut supra, 290. The subject of the Caroline case, so far as concerns the
prosecution of McLeod, is discussed in Whart. Cr. Law, 9th ed., §§ 62,283,
493. As to authorization of Government as a defense in such cases, see
supra, ^ 21 ; infra, $v> 338, 341.

Lord Campbell, in his autobiography (Life, 2d ed., 1881, p. 19), says:
"The atiair of the Caroline was much more difiBcult. Even Lord Grey
told me he thought we were quite wrong in what we had done. But
assuming the facts that the Caroline had been engaged, and when
seized by us was still engaged, in carrying supplies and military stores
from the American side of the river to the rebels in Navy Island, part
of the British territory; that this was permitted, and could not be pre-
vented, by the American authorities, 1 was clearly of opinion that, al-
though she lay on the American side of the river when she was seized,
we had a clear right to seize and destroy her, just as we might have
taken a battery erected by the rebels on the American shore, the guns
of which were tired against the Queen's troops in Navy Island. I wrote
a long justification of our Government, and thus supplied the argu-
ments used by our foreign secretary, till the Ashburton treaty hushed
up the disi)ute."

Mr. Abdy (Abdy's Kent, 1878, p. 148) sums up his notice of the
Caroline case as follows: "Her Majesty's Government having stated
their regret at the violation of territorv complained of, and at the
omission or neglect to explain or apologize for that violation at the
time ot Its occurrence, and having frankly explained the circumstances
ot the event, attributable entirely to the necessity of the case, the Gov-
228

CHAP. III.] GREYTOWN. [§ 50d, 6.

eruftient of the United States expressed their satisfaction at this ex-
hibition of good feeling and their readiness to receive these acknowl-
edgments and assurances in the conciliatory spirit in which they were
offered."

See also 2 Benton's Tliirty Years in the Senate, 455.

(d) Gkkytoavx.

§ 50d.

Greytown was a port on the IMosquito coast, in which some United
States citizens resided. These citizens, and others interested with them
in business, were subjected to gross indignities and injuries by the local
authorities, who were British, but who professed to act under authority
from the king or chief of the Mosquito Islands. The parties injured ac-
cordingly appealed to the commander of the United States sloop-of-war
Cyane, then lying near that port, for protection. To punish the author-
ities for their action, he bombarded the town. For this act he was
denounced by the British residents, who claimed that the British Gov-
ernment had a protectorate oyer that region. His action was sustained
by the Government of the United States, the ground being the necessity
of punishing in this way a great wrong to citizens of the United States,
and preventing its continuance.

Infra, $ 224.

As to Britisli title to this coast, see infra, § 295.

(e) Border raiders.

§ 506!.

"In reply to Mr. Gorostiza's informal note of the 28th ultimo, Mr.
Forsyth has the honor to state that, except in case of necessity, General
Gaines will not occupy ground not indisputably within the limits of the
United States. In case of necessity, whether the possession of the
ground he may occupy is now or has heretofore been claimed by Mex-
ico, cannot be made a question by that officer. He will take it to per-
form his duties to the United States and to fulfill the obligations of the
United States to IMexico. The just and friendly purpose for which he
does occupy it, if he should do so, being beforehand explained to Mex-
ico, it is expected will prevent either belief or suspicion of any hostile
or equivocal design on his part. It is not intended to be the assertion
of a right of property or possession."

Mr. Forsyth, Sec. of State, to Mr. Gorostiza, May 3, 1836 ; MSS. Notes, Mexico.

"To effect one of the great objects for which General Gaines is sent
to the frontier, i. e., to fulfill our treaty with Mexico by protecting its
territory against the Indians within the United States, the troops of the
United States might justly be sent into the heart of Mexico, and their
presence, instead of being complained of, would be the strongest evi-
dence of fidelity to engagements and friendship to Mexico. Nor could
the good faith and friendship of the act be doubted if troops of the

229

^S ■){)('.] INTERVENTION. [CHAP. III.

United Stales were senl into the Mexican territory to prevent Qm-
bodied Mexiciui Indians justly suspected of such design from assailing
the frontier settlements of the United States."

Mr. Forsylli. Sec. of State, to ^^r. Ooio.stiza, May 10, 1836; MSS. Notes, Mex-
ico.

" Temporary invasion of the territory of ^n adjoining country, when
necessary to prevent and check crime, ' rests upon principles of the law
of nations entirely distinct from those on which war is justitied— upon
the immutable principles of self-defense— upon the principles which jus-
tify decisive measures of precautions to prevent irreparable evil to our
own or to a neighboring people.'''

Mr. Forsyth, Sec. of State, to Mr. Ellis, Dec. 10, 18:iG; MSS. Iast.,Mex.

" When necessary to maintain order and to comply with treaty obli-
gations to Mexico, the troops of the United States are entitled to cross
the boundary between the United States and Mexico, and so when nec-
essary to punish Mexican marauding Indians or to prevent their incur-
sions.'"

Mr. Forsyth, Sec. of State, to Mr. Ellis, Dec. 10, 1830; MSS. Inst., Mex.

"Compaints of unfounded seizures of property by Mexican authorities
on the Eio Grande frontier have recently been addressed to this Depart-
ment by citizens of the United States. They inveigh against arbitrary
acts of the military and corrupt proceedings of the judicial officers of
Mexico in that quarter. This Government is not disposed to connive
at any infractions of the laws of Mexico by our citizens, but it has a
right to exi)ect that if they are charged with a violation of those laws
the cases will be fairly and impartially tried and decided. If a contrary
course should be adopted it may be difficult to restrain the aggrieved
parties from seeking reparation by acts of violence against the property
of Mexicans on the southern bank of the Eio Grande."

Mr. Wehster, Sec. of State, to Mr. Smith, May 5, 1851 ; MSS. Inst.. Mexico.

" If Mexican Indians whom Mexico is bound to restrain are permitted
to cross its border and commit depredations in the United States, they
may be chased across the border and then punished."

Mr. Marcy, Sec. of State, to Mr. Almonte, Feb. 4, 1856; MSS. Notes, Mex.

*' l>nt there is another view of (mr relations with Mexico, arising from
tlie nnliappy condition of affairs along our southwestern frontier, which
dernamls iiiiniediate attention. In that remote region where there are
but few white inhabitants, large bands of hostile and predatory Indians
roam protniscuously over the Mexican States of Chihuahua and Sonora,
and our adjoiiiiug Territories. The local governments of these states
are perfectly helpless, and are kept in a state of constant alarm by the
Indians. They have not the power, if they possessed the will, even to
restrain lawless Mexicans from passing the border and committing dep-
230

CHAP. III.] BORDER RAIDERS. - [§ bOe.

redatioDS on our remote settlers. A state of anarchy and violence pre-
vails throughout that distant frontier. The laws arc a dead letter, and
life and i)ropert3^ wholy insecure. For this reason the settlement of
Arizona is arrested, whilst it is of great importance that a chaiu of
inhabitants should extend all along its southern border sufficient for
their own i)rotection and that of the United States mail passing to
and from California. Well-founded apprehensions are now entertained
that the Indians and wandering Mexicans equally lawless, may break up
the important stage and postal communication recently established
between our Atlantic and Pacific possessions. This passes very near
to the Mexican boundary throughout the whole length of Arizona. I
can imagine no possible remedy for these evils, and no mode of restoring
law and order on that remote and unsettled frontier, but for the Govern-
ment of the United States to assume a temporary protectorate over the
northern portions of Chihuahua and Souora, and to establish military
])osts within the same — and this I earnestly recommend to Congress.
This protection may be withdrawn as soon as local governments shall
be established in these Mexican States, capable of x)erforming their
duties to the United States, restraining the lawless and preserving peace
along the border."

President Buchanan's Second Annual Message, 1858.

"It is a gratification to be able to announce that, through the judicious
and energetic action of the military commanders of the two nations on
each side of the Rio Grande, under the instructions of their respective
Governments, raids and depredations have greatly decreased, and, in
the localities where formerly most destructive, have now almost wholly
ceased. In view of this result, I entertain a confident expectation that
the prevalence of quiet on the border will soon become so assured as to
justify a modification of the present orders to our military commanders
as to crossing the border, without encouraging such disturbances as
would endanger the peace of the two countries."
' President Hayes' Tbird Annual Message, 1879.

"In my last annual message I expressed the hope that the preva-
lence of quiet on the border between this country and Mexico would
soon become so assured as to justify the modification of the orders, then
in force, to our military commanders in regard to crossing the frontier,
without encouraging such disturbances as would endanger the i)eac(i of
the two countries. Events moved in accordance with these ixpecta-
tions, and the orders were accordingly withdrawn, to the entire satis-
faction of our own citizens and the Mexican Government. Subse-
quently the peace of the border was again disturbed by a savage foray,
under the command of the Chief Victorio, but, by the combined and
harmonious action of the military forces of both countries, his band
has been broken up and substantially destroyed."

President Hayes' Fourth Annual Message, 1880.

231

^S 50e.] INTERVENTION. [CHAP. III.

" A recent nj^n-euient with Mexico provides for tlie crossing of the
frontier by the armed forces of either country in pursuit of hostile In-
dians. In my message of last year I called attention to the prevalent
lawlessness upon the borders and to the necessity of legislation for its
suppression. I again invite the attention of Congress to the subject.

" A partial relief from these mischiefs has been sought in a conven-
tion, which now awaits the approval of the Senate, as does also another
touching the establishment of the International boundary between the
United States and Mexico. If the latter is ratified, the action of Con-
gress will be required for establishing suitable commissions of survey.
The boundary dispute between Mexico and Guatemala, which led this
Government to i)roffer its friendly counsels to both parties, has been
amicably settled."

President Arthur's Second Annual Message, 1882.

" The provisions for the reciprocal crossing of the frontier bj' the
troops in pursuit of hostile Indians have been prolonged for another
year. The operations of the forces of both Governments against these
savages have been successful, and several of their most dangerous
bands have been captured or dispersed bj' the skill and valor of United
States and Mexican soldiers fighting in a common cause."
President's Arthur's Third Annual Message, 1883.

" The first duty of a Government is to protect life and property. This
is a paramount obligation. For this governments are instituted, and
governments neglecting or failing to perform it become worse than use-
less. This duty the Government of the United States has determined
to perform to the extent of its power toward its citizens on the border.
It is not solicitous, it never has been, about the methods or ways in
which that protection shall be accomplished, whether by formal treaty
stipulation or by informal convention ; whether by the action of judicial
tribunals or that of military forces. Protection in fact to American
lives and property is the sole point upon which the United States are
tenacious. In securing it they have a right to ask the co-operation of
their sister Kei)ubli(!. So far, the authorities of Mexico, military and
civil, in the vicinity of the border, appear not only to take no steps to
effectively check the raids or imnish the raiders, but demur and object
to steps taken by the United States.

" I am not unmindful of the fact that, as you have repeatedly reported,
there is reason to believe that the Mexican Government really desires
to check these disorders. According to the views you have presented,
its statesmj'u are believed to be sagacious and patriotic, and well dis-
posed to comply with all international obligation-s. But, as you repre-
sent, they encounter, or apprehend that they may encounter, a hostile
public feeling adverse to the United States, especially in these border
232

CHAP. III.] BORDER RAIDERS. [§ 50e.

localities, tliwartiug their best intentions and efltoits. It is greatly to
be regretted tliut such a state of perverted public feeling should exist.
But its existence does not exonerate the Mexican Government from any
obligation under international law. Still less does it relieve this Gov-
ernment from its duties to guard the welfare of the American peoi)le.
The United States Government cannot allow marauding bands to es-
tablish themselves upon its borders with liberty to invade and plunder
United States territory with impunity, and then, when pursued, to take
refuge across the Eio Grande under protection of the plea of the integ-
rity of the soil of the Mexican Eepublic."

Mr. Evarts, Sec. of State, to Mr. Foster, August 13, 1878; MSS. Inst., Mexico;

For. Rel., 1878.
See, farther, Mr. Evarts to Mr. Morgan, Jnne 26, 1880 ; to Mr. Navarro, July 27,

1880, Oct. 6, 1880; Mr. Frelinghuysen to Mr. Morgan, June 6, 1882; to Mr.

Romero, July 6, 1882; Mr. Davis to Mr. Romero, May 7, 1883.

An incursion into the territory of Mexico for the puri)ose of dispersing
a band of Indian marauders is, if necessary, not a violation of the la^w
of nations.

Mr. Fisb, Sec. of State, to Mr. Belknap, Jan. 22, 1874; MSS. Dom. Let. See Mr.
Fish to Mr. Belknap, Aug. 21, 1874.

As to right of passage of troops through foreign country, see supra, ^§ 18, 19.

As to treaties for troops to cross border in pursuit, see supra, $ 18.

In 2 Dix's Life, pp. 110 ff., it is maintained that the United States would be
justified in crossing the Canada border in order to arrest Canadian maraud-
ers whom the Canadian authorities neglected or refused to repress.

The following orders bear on this question :

Headquarters Depautmext of the East,

Ken- York City, Decemhcr 14, 1864.

General Orders No. 97.

Information having been received at these headquarters That the rebel marauders who
were (juiltij of murdfr and rohberi/ at Saint Albans have been discharged from arrest, and
that other enterprises of a like character are actualhj in preparation in Canada, the Com-
manding General deems it due to the people of the frontier towns to adopt the most
prompt and eflScient measui'es for the security of their lives and property.

All military commanders on the frontiers are therefore instructed, in case further
acts of depredation and murder are attempted, whether by marauders or persons act-
ing imder commissions from the rebel authorities at Richmond, to shoot down the per-
petrators, if possible, while in the commission of their crimes ; or, if it be necessary,
ioith a view to their capture, to cross the boundary between the United States and Canada,
said commanders are hereby directed to pursue them wherever they may take refuge, and if
captured they are nnder no circumstances to be surrendered, but are to be sent to these head-
quarters for trial and i)unishment by nrartial law.

The major-general commanding the department v/ill not hesitate to exercise to the
fullest extent the authority he possesses, under the rules of law recognized by all civ-
ilized states, in regard to persons organizing hostile expeditions within neutral terri-
tory and fleeing to it for an asylum after committing acts of depredation within our
own, such an exercise of authority having become indispensable to j)rotect our cities
and towns from incendiarism and our jieople from robbery and murder.

238

y\ f) 1 . J INTERVENTION. [cHAP. III.

It i.s oaruostly liopfd tlial tlio inh;ibit;iutb of our frontier districts will abstaiu from
ill! acts of retaliation on account of the outrages committetl by rebel marauders, and
that the proper measures of redress will be left to the action of the public authorities.
Bv command of Major-General Dix.

D. T. VAN BUREN,
Colonel and Assistant Adjutant-General.

Official.

Wright Rives, Aid-dc-Camp.

Headquauters Department of the East,

Netv York City, December 17, 18G4.

General Orders No. 100.

The Bresident of the United States having disapproved of that portion of Depart-
ment General Orders No. 1)7, current series, which instructs all military commanders
on the frontier, in certain cases therein specified, to cross the boundary line between
the United States and Canada, and directs pursuit into neutral territory, the said in-
struction is hereby revoked.

In case, therefore, of any future marauding expedition into our territory from
Canada, military commanders on the frontiers will report to these headquarters for
orders before crossing the boundary line in pursuit of the guilty parties.
By command of Major-General Dix.

D. T. VAN BUREN,
Colonel and Aftsistant Adjutant-General.
Official.

G. vox Erikstedt, AUl-de-Camp.

See Bernard's Neutrality of Gr. Brit., 185, where the above orders are noticed.
(7) EXPLOKATIONS IN BARBAROUS LANDS (C. J/., THE CONGO).

§ 51.

"The instructious of tbis Government governing yonr course in that
conference are very brief. Without more definite knowledge of the
points to be brought before that conference for discussion, and of the
extent to which it may feel called upon to take cognizance of existing
questions of territorial jurisdiction on the west coast of Africa, and es-
ix'cially at the mouth of the Congo, much must be left to your discre-
tion. The subject is one with which you became familiar before your
departure for your ])reseiit i)ost, in connection with the action of Con-
gres.s and the declaration of the Executive of the United States looking
to a free participation in the trade and intercourse of that newly -opened
country by the \e.ssels and citizens of the United States. You are
aware that it is not our jtolicy to intervene in the affairs of foreign na-
tions to decide lerritonal questions between them. It is not, however,
understood from the tenor of the German invitation that any such de-
cisive attitude is likely to be assumed by the conference, and beyond
t;ikingcogni/.:inceof such matters of fact in relation to territorial juris-
diction in that region, as may be brought before it to aid in an intelli-
234

CHAP. III.] EXPLORATIONS : THE CONGO. [§ ^ ^ •

gent discussicu of the three points embraced iu the German note of in-
vitation, it is not seen that the conference can take upon itself any
greater power of intervention or control than could properly be assumed
by the individual nations represented thereat."

Mr. Frelingliuysen, Sec. of State, to Mr. Kassou, Oct. 17, 1884: MSS. Inst.,
Germany.

" The rich and populous valley of the Congo is being opened to com-
merce by a society called the International African Association, of which
the King of the Belgians is the president and a citizen of the United
States the chief executive officer. Large tracts of territory have been
ceded to the association by native chiefs, roads have been opened, steam-
boats placed on the river, and the nuclei of states established at twenty-
two stations under one flag, which offers freedom to commerce and pro-
hibits the slave trade. The objects of the society are philanthropic.
It does not aim at permanent political control, but seeks the neutralitj^
of the valley. The United States cannot be indifferent to this work, nor
to the interests of their citizens involved in it. It may become advis-
able for us to co-operate with other commercial powers in promoting the
rights of trade and residence in the Congo Valley free from the inter-
ference or political control of any one nation."
President Arthur's Third Annual Message, 1883.

" The Independent State of Congo has been organized as a Govern-
ment, under the sovereignty of His Majesty the King of the Belgians,
who assumes its chief magistracy iu his ijersonal character only, with-
out making a new state dependency of Belgium. It is fortunate that a
benighted region, owing all it has of quickening civilization to the benef-
icence and philanthropic 'spirit of this monarch, should have the ad-
vatitage and security of his benevolent supervision.

" The action 4:aken by this Government last year in being the first to
recognize the flag of the International Association of the Congo has
been followed by forjnal recognition of the new nationality which suc-
ceeds to its sovereign powers.

"A conference of delegates of the principal commercial nations was
held at Berlin last winter to discuss methods whereby the Congo Basin
might be kept open to the world's trade. Delegates attended on behalf
of the United States on the understanding that their i)art should be
merely deliberative, without imparting to the results any binding char-
acter, so far as the United States was concerned. This reserve was due
to the indisposition of this Government to share in any disposal by an
international congress of jurisdictional questions in remote foreign ter-
ritories. The results of the conference were embodied in a formal act
of the nature of an international convention, which laid down certain
obligations purporting to be binding on the signatories, subject to rati-

235

.^ 51.] intp:rvention. [chap. hi.

lifatioii wit hill one year. Notwitlistandiug the reservaliou under which
the (lek'uatos of the United States attended, their signatures were at-
tached to the general act iu the same manner as those of the plenipo-
tentiaries of other Governments, thus making- the United States appear,
without reserve or qualification, as signatories to a joint international
engagement imposing on the signers the conservation of the territorial
integrity of distant regions where we have no established interests or
control.

'• This Government does not, however, regard its reservation of liberty
of action in the premises as at all impaired ; and holding that an engage-
ment to share in the obligation of enforcing neutrality in the remote
valley of the Congo would be an alliance whose ^-esponsibilities we are
not in a position to assume, I abstain from asking the sanction of the
Senate to that general act,

" The correspondence will be laid before jou, and the instructive and
interesting report of the agent sent by this Government to the Congo
country, and his recommendations for the establishment of commer-
cial agencies on the African coast, are also submitted for your con-
sideration."

President Cleveland's First Annnal Message, 1885.

"As you are aware, the Government of the United States, in authoriz-
ing the attendance of Mr. Kasson as a delegate to the conference of
Berlin, and of Mr. Sandford as an associate delegate, did so under ex-
pressed reservations, among which was the understanding that those
gentlemen were without plenipotentiary powers, and that this Govern-
ment, in its sovereign discretion, reserved wholly the right thereafter
to accede or withhold its accession to the resiUts of that conference.

" It a])pcars, however, that their signatures were attached to the gen-
eral act in the same manner as those of the plenii)otentjaries of other
Governments, and that the United States are thus made to appear as
signatories to a general international treaty, imposing on the signatories
a common duty in respect of the conservation of the territorial integrity
and neutrality of distant regions where this Government has no estab-
lished interests or control of any kind.

"This Government does not, however, regard its prior and entire res-
ervation of liberty of action in the premises as at all thereby impaired.
And until the United States shall, by subsequent accession and ratifica-
tion of the general act of the conference of Berlin in the manner therein
])rovided. and according to their constitutional forms, become a party
to the stipulations thereof, it will be impossible to determine the due
and i>ruper weight to be given by this Government to the declaration
and claim which is thus communicated by Mr. van Eetvelde on behalf
of the Independent State of the Congo. But this reservation is wholly
distinct from the recognition of the sovereign status of the Independent
236

CHAP. III.] POLITICAL OFFENDERS. [§ 52.

State of the Congo, which does not rest upon the conventional arrange-
ments contemplated by the conference of Berlin."

Mr. Bayard, Sec. of State, to Mr. Tree, Sept. 11, 1885; MSS. lust., Belg.; For.

Rel., 1885.
For corresijoudence on this topic see For. Rel., 1885, o7 ff.
As to agency to tlie Congo, see Mr. Frelinghuyseu to Mr. Tisdel, Sept. 8, 1884 ;

MSS. Notes, Special Missions.
See discussion of the Congo question in review by M. de Martens; Revue de

Droit Int., 18-6,113.

" The President having deemed it inexpedient to submit the general
act of the Berlin [Congo] Conference to the Senate with a view to ob-
tain the constitutional concurrence of that body, and having announced
his views thereon in liis annual message of the 8th of December last (of
which I inclose copies for your convenient information), I am unpre-
pared to ask, through the United States minister at Berlin, as your note
suggests, that the term for the exchange of ratifications be kept open
in favor of the United States. Nor am I at present prepared to make
such announcement to your Government as might be construed to be a
formal and final rejection of the general act by the United States."

Mr. Bayard, Sec. of State, to Mr. von Alvensleben, April 16, 1886; MSS. Notes,
Germany.

(8) Intercession in extreme cases of political offenders.

§52.

On March 15, 1793, Mr. Jefferson, Secretary of State, instructed Mr.
Gouverneur Morris, minister to France, to say, whenever it would be ef-
fectual, to any foreign Government by whom General La Fayette might
beheld in custody, " that our Government and nation, faithful in their
attachments to this gentleman for the services he has rendered them,
feel a lively interest in his welfare, and will view his liberation as a
mark of consideration and friendship for the United States, and as a
new motive for esteem and a reciprocation of kind offices towards the
power to whom they shall be indebted for this act."

This api)lication, however, was considered afterwards to be personal
rather than official.

" The uniform policy of this Government has been n(;t to interfere in
the domestic affairs of other nations. This policy was wisely estab-
lished by President Washington, who carried it so far as to refuse to
interfere oflBcially for the release of La Fayette, his friend and compan-
ion in arms, who was incarcerated for many years in the prison at Ol-
miitz."

Mr. Crittenden, Acting Sec. of State, to Mr. Pruyn, Oct. 8, 1851 ; MSS. Dom.
Let.

The Government of the United States will, through the Secretary
of State, interpose its good offices for the alleviation of the jjunishment

237

§ 52.] INTERVENTION. [CHAP. III.

of citizens of the Unite.d States convicted in a foreign country of polit-
iial otlenses against such country.

Mr. Webster, Sec. of State, to Mr. Cushiug, Aug. 27, 1842; MSS. Dom. Let.

Th(3 laws of Turkey " whereby the i>eualty of death is denounced"
against the Mussulman who embraces Christianity," however outra-
geous, do not justify an appeal from this Government for their repeal.

' Mr. Marcy, Sec. of State, to Mr. Spenee, Dec. 28, 1855 ; MSS. Inst., Turkey.

Xo intercession will be offered when it involves an impeachment of
the character of the Government addressed. Hence, in Decembers,
1858, the Department declined to address the Papal Government in
reference to certain acts of alleged cruelty permitted in Bologna.

Mr. Cass, Sec. of State, to Mr. Hart, Dec. 8, 1858 ; MSS. Dom. Let.

The same position was taken by Mr. Cass on Jan. 4, 1859, in declining to inter-
vene in behalf of the " Mortara boy," alleged to have been abducted and
forcibly baptized by Papal authorities.

"The capture of the Prince Maximilian in Queretaro by the republi
can armies of Mexico seems probable. The reported severity i)racticed
on the prisoners taken at Zacatecas excites apprehension that similar
severity may be practiced in the case of the prince and his alien troops.
Such severities would be injurious to the national cause of Mexico and
to the republican system throughout the world.

"You will communicate to President Juarez promptly, and by effect-
ual means, the desire of this Government, that in case of capture the
l)rince and his su])porters may receive the humane treatment accorded
by civilized nations to prisoners of war."

Mr. Seward, Sec. of State, to Mr. Campbell, Apr. (5, 1867 j MSS. Inst., Mexico.

" The judgment of mankind is that in revolutionary movements which
are carried on by large masses, and which appeal to popular sympathy,
capital executions of individuals who fall within the power of the Gov-
ernment are unwise and often unjust. Such severity, when practiced
upon a citizen of a foreign state, excites a new sympathy by enlisting
feelings of nationality and patriotism.

" The fellow-citizens at home of the sufferer in a foreign country nat-
urally incline to believe that the just and generous principle to which
I have referred is violated in his case. The soundness of this principle
is quite easily understood after the revolutionary movement is ended,
although it is difficult to accept the truth in the midst of revolutionary
terror or violence. When the President of the United States dismissed
the pro.^ecutions in the United States courts of the so-called Fenians
who attempted an unlawful and forbidden invasion of Canada, and re-
turned them to their homes at the expense of the Government, and at
the same time obtained, through the wise counsels of Sir Frederick
Bruce and the Governor-General of Canada, a mitigation of the capital
punishments adjudged against those who were convicted in the Cana-
238

CHAP. III.] POLITICAL OFFENDEPtS. [§ 52.

diau courts, the President adopted proceedings which have practically
assured the continuauoe of peace upon the Canadian border. It was
believed here that similar clemency could be practiced in the Manches-
ter case with benign results. Your dispatch leads us to believe that
Her Majesty's Government was so thoroughly convinced of the neces-
sity of pursuing a difi'erent course in that case that further interposition
than that which you adopted would have been unavailing and injurious
to citizens of the United States. Certainly it belonged to the British
Government to decide whether the principle which we invoked could be
wisely applied in the Manchester case."

Mr. Seward, Sec. of State, to Mr. Adams, Dec. 9, 18G7 ; MSS. lust., Great
Britain.

"Although this [a proclamation by the Governor- General of Cuba,
threatening death to insurgents taken prisoners with arms in their
hands] is a measure touching the internal affairs of a country which is
within the exclusive jurisdiction of the Government of that country, it
seems to be of a character so inhuman and so much at variance with
the practice of Christian and civilized states in modern times under
similar circumstances, that this Government regards it as its duty
merely as a friend of Spain, to protest and remonstrate against the car-
rying it into effect."

Mr. Fish, Sec. of State, to Mr. Roberts, Jan. 8, 1872; MSS. Notes, Spain.

For Mr. Webster's letter of intercession for parties taken on Lopes expedition,

see G Webster's Works, 515, and see Sen. Ex. Doc. No. 41, 31st Cong., 2d

sess. ; House Ex. Doc. No. 2, 32d Cong., 1st sess. ; id., Ex. Doc. No. 16.
As to iuterpositionof theUuited States in 1831, bringing Hungarian exiles from

Turkey to the United States in a national ship, see supra, § 48 ; 2 Curtis's Life

of Webster, 560-'l.
As to interposition with the British Government in favor of certain Fenian

prisoners captured in Canada, see Mr. Seward, Re])ort to the President, July

26, 1866 ; MSS. Report Book No. 9. (See also House Ex. Doc. No. 154, 39th

Cong., 1st sess.)
For the application of Mr. Fish, Sec. of State, to the Spanish Government for

the release of Santa Rosa, in 1872, see Mr. Fish to Admiral Polo, Dec. 17,

1872 ; MSS. Notes, Spain ; For. Rel., 1873.

"Mr. Frelinghuysen informed Mr. Lowell of the action of the House
of Representatives, as contained in the resolution of December 10, re-
peated his former instruction to consider the citizenship of O'Donnell
established, and concluded bj^ saying:

" 'There being in Great Britain no judicial examination on appeal of
the proceedings at a criminal trial, jiossible errors can only be corrected
through a new trial or by executive action upon the sentence. There-
fore this Government is anxious that such careful examination be given
to the proceedings in this case as to discover error, should one have
been committed. You are therefore directed by the President to re-
quest a delay of the execution of the sentence, and that a careful exam-

239

^ 53.] INTERVENTION. [CHAP. III.

illation of tliecase be made by Her Majesty's Government, and that tbe
prisoner's counsel be permitted to present any alleged points of error.'"

Telegram, Mr. Frelinglinyseii, Sec. of State, to Mr. Lowell, Dec. 11, 18R3 ; MSS.

lust., Gr. Brit. ; For. Kel., 1883.
As to joint resolutiou of Congress for iutercessiou in Condon's case, see ivfra,

$ 230.

(0) International courts in semicivilized or barbarous lands.

§53.

This subject, so far as concerns the action of consular courts, is
hereafter considered. Infra, § 125.

"I have the honor to acknowledge the receipt of Sir Edward Thorn-
ton's note of the 12th ultimo, in relation to the proposed commission
of liquidation for the settlement of the Egyptian debts, which has re-
sulted from the negotiations carried on for some time between the Gov-
ernments of Great Britain, Austria-Hungary, France, Germany, and
Italy, and have given the most considerate attention to the statements
therein presented respecting the Khedival decree of March 31 last, and
tbe declaration of the same date signed by the representatives of the
five powers above mentioned, of which documents you kindly furnish
me with copies.

"It appears from those documents, taken conjointly with your state-
ments, that the live powers, whose subjects own nearly the whole of the
Egyptian debt, have organized among themselves a commission of liqui-
dation for the benefit of the creditors, whether large or small, whose in-
terests are confided to its prudence ; that the same powers have united
in a declaration to the end of giving force of law to the decisions which
the commission sliall have arrived at; that the five Cabinets are desirous
that the decisions of the commission should hold applicable with like
force to creditors belonging to powers which, while not represented in
the i)reliminary negotiations tor the commission, or in the commission
itself, have concurred in establishing the legal administration of Egypt
by i)articipating in the establishment of the mixed tribunals; that to
this end the adherence of such powers to the work of the commission is
requested, in order that those tribunals may have unimpeded jurisdic-
tion over cases of rescinded contracts and otlier questions which may
ari.se under the operations of the commission; and that you are in-
structed by your Government to ask the formal adhesion of that of the
United States to the joint declaration referred to. Hence you ask that
I will acquaint you, so soon as it may be in my power, with the views
of this Government upon the subject.

'•The important question to which the attention of this Government
is til us called had already had careful consideration, based upon the ap-
lication ilirectly made to it by that of His Highness the Khedive through

CHAP. III.] INTERNATIONAL COURTS. [§53,

the United States agent at Cairo, and also upon the approaches made
to it by that of France in the sense of obtaining the adhesion of the
D nited States to the .scheme. The first results of that consideration were
not, on the whole, favorable to the concurrence of the United States in
the proposal of the foreign powers, and the expressed opinion of the
Department was that the United States Government did not feel called
upon to accept, in advance, as binding upon its citizens, the action of a
commission in the organization of which neither it nor they had had any
part. Although, so far as was known, the interests of American citi-
zens concerned in contracts and like engagements with the Egyptian
Government were not so numerous or important as to make participa-
tion in the organization of the commission an indispensable requisite,
yet it was regarded as proper to leave undecided, for the time being at
least, the question of the acceptability of such action as that commis-
sion might hereafter take so far as concerned its operation npon the
rights of citizens of the United States, and this view was strengthened
by the natural desire of the United States to take no action which, on
the one hand, might be tantamount to enforcing its own procedure and
remedies, in conjunction with other powers, upon the Khedival Gov-
ernment in matters of its own internal economy, and, on the other,
might forego the reservation of the rights of United States citizens in
their direct relations to the Egyptian Government, in case the dispar-
agement of such rights should call for diplomatic representations in
their defense.

"In leaning to the adoption of such a course on the part of the United
States, it vras, however, entirely foreign to the purposes of this Gov-
ernment to interfere with, or embarrass in any way, the financial rela-
tions of the Khedive toward the other powers, or the adjustment, by
whatever means it and they might determine, of such obligations as
might have arisen and become matters of dispute or compromise be-
tween them. It was not perceived that the attitude of discreet re-
serve, which thus so properly commended itself to this Government in
respect of a matter wherein it, as a Government, had no dii'ect con-
cern, and w^herein the interests of its citizens were amply guarded by
the direct relations it maintain;s so happily with the Government of the
Khedive, could be regarded as interfering with the entire freedom of
that Government to make any administrative adjustment of its finan-
cial relations with Governments having re[)resentation in such admin-
istration.

"While holding these views, therefore, and expressing them frankly
through the medium of its diplomatic representation at Cairo, the Gov-
ernment of the United States held itself ready to receive and consider
in the most friendly s[)irit any indications which the Khedive's Govern-
ment might present of embarrassment caused to it on this account.

"Matters being in this state, advices from the representative of the
United States at Cairo were received, exhibiting the apparent interest

S. Mis. 102— VOL. I IG 241

^ 54.] INTERVENTION. [CIIAP. III.

of the Egyptian Governmeut itself in the .solutions reacbed by the com
mi.ssiou of liquidation, and soliciting; in the most unequivocal and earn-
est manner the concurrence of the United States in order to remove the
embarrassments which it was represented would tlow from the attempt
on the part of the Khedive's Government to apply, through the tribunals,
the decisions of the commission without the adhesion of the powers
represented in the organization of those tribunals; and these consid-
erations induced this Government to waive its reserve and accord its
adhesion to the administrative plan upon which the Governmeut of His
Highness the Khedive seemed to put so much value.

" The diplomatic agent of the United States at Cairo was accordingly
in.structed, on the 17th instant, by telegraph, to give the adhesion of
this Government, if that of Egypt regarded it as material to the scheme,
and I am since in receipt of advices that he has done so."

Mr. Evarts, Sec. of State, to Mr. Druraniond, July :?0, 18S0 : MSS. Notes, Gr.
Brir.; For. Kel., 1880.

A similar oommuDication was addressed, the same day, to the representatives
of Austria-Hungary, France, Germany, and Italy.

As to institution of international courts in Egypt, see Mr. Seward, Sec of State,
to Mr. Adams, April 13, 18b8 : MSS. Inst., Great Britain.

(10) Good offices foe missionaeies abeo.\d.
§ 54.

Missionaries sent out by religious communions in the United States
to ^Ichammedan or pagan lands '• are entitled to all the protection which
the law of nations allows the Government to extend to citizens who re-
side in ioreign countries in the pursuit of their lawful avocations, but it
would be a source of endless embarrassment to attempt to reverse the
decisions of regular tribunals" when such missionaries are condemned
for teaching doctrines not tolerated by the secular power, in cases where
there is no treaty guarantee for their toleration.

Mr. Everett, Sec. of State, to Mr. Marsh, Fel). .'), 1853; MSS. In.st., Turkey.

The Government of the United States, while protecting citizens of
the United States in Turkey so far as concerns their international rights,
cannot in any way assume a protectorship of Christian communions in
Turkey, as is done by some European powers, nor in any way under
take to <letermine their dissensions.

Mr. Cass, Sec. of State, to Mr. Williams, Oct. 22, 1S60; MSS. Inst., Turkey.

" It is a matter of regret that the Christian missionaries of the United
States and of Hawaii to the Micronesian group should have experienced
any ob.stacle in the prosecution of their calling, and especially that they
should have been wronged in their person and property by the savage
aborigines. It is ho])ed that the ve.ssel of war which, it is understood,
has been ordered thither, will have the effect of preventing any further
343

CHAP. 111. J GOOD OFFICES FOR MISSIONARIES. [§ 54.

outrages upon our citizens. Our right, however, to demand redress for
injuries to subjects of the Hawaiian Kingdom, independent, though a
friendly state, may be regarded as questionable. We should, couse-
queutly, prefer not to direct an application to be made in their behalf,
notwithstanding the connection between missionaries of this country
and those of Hawaii, adverted to by Mr. Harris in his note to you of
the 2Gth February. Still, as the native inhabitants of Micronesia are
not understood to acknowledge the ol)ligations of the Uit of nations, it
will be competent for, and there would be no objection to, a United
States naval commander interposing in behalf of any subjects of the
Hawaiian Kingdom to protect them against any further injuries with
which the}' might be threatened during his abode in Micronesia."
Mr. Fish, Sec. of State, to Mr. Peirce, Apr. 6, 1870; MS3. Inst., Hawaii.

The minister of the United States at Constantinople may employ his
good offices with the Turkish authorities to obtain for the Syrian Prot-
estant College authority to grant medical degrees. This privilege, how-
ever, is not to be claimed as a matter of right, either under i^ublic law
or treaty, but merely as a mark of good- will.

ilr. Fish, Sec. of State, to Mr. Brown, July 31, 1871 ; MSS. Inst., Turkey.

" I have received your dispatch No. 28, of the 6th ultimo, inclosing
correspondence between yourself and the vice-consul-general at Beirut,
in regard to the ' amount of protection, if any, consuls can give to the
teachers, pupils, and natives who have been converted through the
ministry of the American missionaries, from persecution on account of
their religious belief.'

" In reply, I have to state that the general iwsition and principles
advanced by you on the subject are correct, and are within the provis-
ion of the treaty between the United States and Turkey, and your com-
munication to the vice-consul-general is approved."

Mr. Fish, Sec. of State, to Mr. Brown, Dec. 5, 1871 ; MSS. Inst., Turkey ; For.
Rel., 1871.

This instruction was in response to the followiiig :

No. 457.

Mr. Broun to Mr. Fish.

No. 28.] Legatiox oi- tiik United States,

Constantinople, Novemher 6, 1871. (Received December "2.)

" Sir: I have the honor to transmit to the Department copies of a correspondence with
the consulate-general at Beirut, and to request most respectfully your instructions on
the subject to which it relates.

" I have very great respect for all of the American missionaries in all parts of this
country, and many of them are personal friends. They are fully entitled to all the
protection which the legation can secure for them. The opinions which I have ex-
pressed in my reply to the vice-consul-general are based upon my experience and
knowledge of the feelings of the Turkish Government.

Ihave,&c., JOHN P BROWN.

243

§ 54.] INTERVENTION. [CHAP. 111.

Mr. Brown to Mr. Hay.

Legation of the United States,

Constantinople, November 4, 1871.

Sir : I have had the honor to receive your dispatch of the 11th October, asking
instructions from me on the subject of the amount of protection, if any, consuls may
give to the teachers, pupils, and natives who have been converted through the minis-
try of the American missionaries, from persecution on account of their religious
belief.

As I am not in jiossession of any instructions from the Department of State on the
subject, and as it is one that must greatly interest the missionaries in Syria, I shall
now transmit to it a copy of your dispatch and of my reply, for its consideration. It
is for the first time, that I am aware of, that such a request has been submitted to the
legation from missionaries in any part of Turkey ; and I must regret that anything
has now occurred to render it necessary.

It seems to me that much as the Government of the United States may be interested
in the principle of religious liberty and toleration in all parts of the world, the ques-
tion is one of so much delicacy, when it relates to other countries and Governments,
as to prevent its direct official interference to sustain it.

By refereuce to the fifth article of the treaty, you will jjerceive that it has been
established that the legation and consulates of the United States shall not protect
Ottoman subjects, either openly or secretly, &c., and the same principle you will find
repeated in your berat or exequatur of the consul-general. I do not see how this stip-
ulation can be departed from on the ground of religious toleration in this country.
Although the Ottoman Government tolerates the labors of missionaries among its sub-
jects, it does so unwillingly, and is not disposed to favor or promote them. With this
fact before me I cannot instruct you to claim a right (o give your official protection to
the individuals aforestated. I believe the local authorities will not allow it. The
question will then be referred by them and yourself here, and I shall have invited
upon the legation a question of an untenable nature. The recent case of the teacher
of the Rev. Mr. Jessup offers an evidence of what I state. I certainly do not advise
you from refraining to offer your officious solicitations in behalf of any clearly estab-
lished cases of religious persecution, be the sufferer whomever he may, or whatever
his faith, and from invoking tlie well-known liberal princij)les of the Ottoman Govern-
ment in such matters ; but this should be done with much discretion. It would be
certainly an error (o interfere in the affairs of the individuals you allude to discon-
nected with religion.

Yon are misinformed on the subject of any " Mussulman who, for having embraced
Christianity, may be put to death." Several years ago the Sultan officially declared
that this principli; of Islam holy law should never be practiced ; and there are now
some few Christians hero who were once Moslems, residing at the capital, and in fre-
quent intercourse with the higher functionaries of the Government. I am probably
better acquainted than yourself with its feelings. I would, therefore, not encourage
you to do what, though very creditable to your feelings as a Protestant. I should not
be able to sustain you in.

You may, however, easily verify what I have stated by putting forward a claim to
protect the individuals mentioned in your dispatch.

As to the Americin missionaries, I, of course, need not add that every possible means
should be adopted for their protection. Their dwellings and establishments are invio-
late, and will ncv(T, I ])resume, be molested.
I am, &c.,

, ,. JOHN P. BROWN.

J. Baldwin Hay, Esq.,

United States T'ice-Consiil-General, Beirut.
244

CHAP. III.] GOOD OFFICES FOR MISSIONARIES. [§ 54.

Mr. nay to Mr. Drown.

Unitkd States Consulatk-Genekal,

Beirut, October 11, 1871.

SiK : I have the honor to ackuowledgc your official note, dated the lUth ultimo, on the
protection alleged to have been given by the United States consular agent at Tripoli
to an employ6 of the Rev. Mr. H. S. Jessup. This is the first that 1 have heard of the
affair, and I have requested Mr. Tauni to give lue full particulars of the case, aud to
what extent he has protected the said employe ; and I shall send you his report as soon
as received.

lu the meanwhile allow me to request special instructions respecting the claim of
American missionaries in Syria to official protection in their vocation.

The American missionary enters the Ottoman Empire with the avowed object of
teaching the Christian religion to the subjects of this Empire, not secretly, but openly.
The Ottoman Government, by reason of according them permission to teach and preach
the Christian religion, and to open schools, cannot justly offer them any molestation
or hindrance iu pursuing their object, nor can it consistently injure, threaten, or per-
secute such of its subjects as may embrace the religion which it allows the missionaries
to teach. Jf a Mohammedan subject of Turkey embraces Christianity, by the laws
of Mohammedanism his evidence is worthless, aud he can be put to death ; but a recent
decree of the Sultan proclaims religious toleration throughout the Empire. This decree
is not practically enforced in Syria, aud American missionaries often desire and expect
consular interpositiou to succor persecuted native teachers and native converts. Such
a course is offensive to the local authorities, who are secretly (if not openly) upheld
in Constantinople by their superiors.

Only the firm 2)ressure of Chrintian nations caused the Sultan to proclaim religious
liberty, and a constant pressure is absolutely necessary to secure this liberty of con-
science to converts who desire to experience its benefit.

Having thus briefly stated the position of American missionaries in Syria, I earnestly

desire instructions as to how far they are to be protected in their calling, and to

what extent, if any, consuls can protect their teachers, their pupils, aud the natives

who have been converted by their ministry. (The word protection in this case means

protection from persecution on account of religious belief.)

I am, &c.,

•J. BALDWIN HAY,

Vice- Consul- General.
Hon. Joiix P. Browx,

United Slates Minister, Constaiititiople.

As to protection to be afforded to missionaries iu China, see Mr. Fish, Sec. of
State, to Mr. Avery, July 30, 1875 ; MSS. Inst., China. As to Chinese toler-
ation iu this respect, see infra, ^^ 67, 144.

" I transmit herewith for your information the inclosed copies of dis-
patches No. G7, of January 18 last, and No. 323, of the 5th ultimo, from
our consul at Beirut, Syria, and consul-general at Constantinople, in
relation to the difficulties encountered by American citizens and grad-
uates of the American college at Beirut in their endeavor to practice
their i)rofession in the Ottoman Dominions.

" To some extent the onerous and unjust discriminations of the Turk-
ish authorities iu respect of this general subject are familiar to your
legation, the case of the late Dr. Calhoun being a recent one in point.

" In that case, where it was sought to impose unreasonable restric-
tions jn regard to Dr. Calhoun's medical practice, the Department en-

245

§ 54.] INTERVENTION. [CHAP. III.

deavored to secure for him only such treatment in respect to his ex-
amination as was enjoyed by medical practitioners, citizens or sub-
jects of other countries, residing- and practicing in Turkey. So. too,
in the present instauce, where the cases are practically the same, we
ask onlj' fair and impartial treatment for our citizens who desire to follow
their profession in that country.

"It is difficult to believe that the Turkish Government would know-
ingly permit its local authorities to so unjustly discriminate against
American medical practitioners. Thijs is the more singular and to be
regretted when it is remembered that our citizens have been regularly
graduated from the college at Beirut, a chartered and trustworthy insti-
tution, having authority to confer such diplomas, and in view of the .
undoubted statement that no such exactions as are sought to be imposed
upon our citizens are attempted or enforced against medical practitioners
of other nationalities, even when they have not followed any prescribed
course of study. Yet this is precisely the situation as represented by
Mr. Robeson, whose strenuous efforts have unfortunately been thus far
unavailing to stop or prevent so unjust a discriminatory practice. Xor,
I regret to add, so far as Mr. Heap's knowledge goes, have those which
have been put forth by the legation or consulate-general for the relief
of our citizens in such cases been hardly more satisfactory, notwith-
standing the orders and promises of the Turkish Government. The
faculty of the college at Beirut now hope for one of the following priv-
ileges :

"First. A charter as an independent medical college, with power to
grant legal degrees in medicine and surgery.

"Second. The privilege of granting degrees in medicine and surgery,
which, to be legalized, shall be forwarded to Constantinople through
the American minister or consulate-general, to be signed and sealed by
the Imperial College officials.

"Third. Failing in either of these, the appointment of an examining
board of Government physicians in Beirut or Damascus, with power to
grant a certificate to the graduates of the American college after they
have passed a satisfactory examination before the said board, which
certificate shall authorize the holder to practice medicine anywhere in
the Ottoman Empire.

" These ])ropositions ai)pear reasonable and just, and any one of them,
if adopted, would doubtless afibrd a practical and satisfactory solution
of the present difficulties surrounding American medical practitioners in
that country. In the opinion of this Government, therefore, the Gov-
ernment of Turkey should be willing to grant one or the other of these
privileges, and enforce a compliance of its orders by the local authori-
ties throughout the Empire.

"The inclosed correspondence will enable you to fully and carefully
present this subject to the Government of the Porte. This you will
accordingly do, and endeavor to obtain through the adoption of one of
246

CHAr. III.] GOOD OFFICES P^OR MISSIONARIES. [§ 54.

.the courses suggested above, or some other equally satisfactory method,
recognition of the competent dii)lomas issued by the American college
at Beirut to its medical graduates.

"This Government is disposed to admit that every country has the
right to prescribe the modeof recognition of medical practitioners within
its borders. While granting this, it is only reasonable to exi)ect, there-
fore, that an^' regulations governing in such cases should be fair and
impartial, and not discriminate in favor of any one nationality. All
that is demanded in the interest of our citizens is that the rule adopted
shall be uniform and without any practical discrimination against duly
graduated American practitioners. Common justice and international
intercourse alike suggest that no other course should be recognized or
permitted."

Mr. Frelinghuyseu, Sec. of State, to Mr. Wallace, March 27, 1884; MSS. Inst.,
Turkey :*For. Rel., 1884.

"The question of the personal protection of parties whose sojourn in
Mexico may be under such conditions or associations as to bring them
into conflict with Mexican law and, probably, worse still, with native pre-
judices, is a grave matter which, from its complexity, requires the most
discreet handling. In the two cases mentioned in your present dis-
patch, the element of discretion in the proceeding of the American citi-
zens concerned is not, I regret to say, evident. In the one, it is pro-
posed to erect a Protestant house of worship in immediate proximity to
a Catholic church. In the other, the ruins of a consecrated edifice are
proposed to be utilized for the worship of another faith. The legal
right to do these things may be perfect in all respects, but the moral
aggressiveness of the proceeding may tend to arouse local sensibilities
and divert them into undesirable channels. It is one thing to be drawn
unintentionally into a controversy; it is quite another to provoke it.

" I find in the records of this Department a recent instance bearing on
this question and showing the views of my immediate predecessor
touching the extent to which international right may be invoked to de-
fend acts which may be lawful in themselves, but which may tend to
disturb the po[)ular feeling.

"In 1884 an instruction (No. 147, of January 9) was addressed to
Mr. Wallace, United States minister at Constantinople, in reply to a
dispatch reporting the correspondence had with the Turkish Govern-
ment concerning the alleged conversion by the missionaries, in certahi
parts of Armenia, of their dwellings to ecclesiastical purposes, and their
use of bells as a part of their worshi[).

" Mr. Frelinghuyseu remarked that the right of private worship in
a dwelling-house must be maintained, and that if it were infringed
the remonstrances of the legation were to be immediate and energetic.
To insure that the intervention of this Government in such a case
was obtained in good faith and due as a right, it was very desirable

247

§ 54.] INTERVENTION. [CHAP. III.

that such discretion should be observed by American citizens of non-
Moliaiiiiiiedan faith, who had taken up their abode in the Mohammedan
regions of Turkey, as not to overstep the bounds which separate private
from public worship, or to give grounds for any plausible complaint
by the Turkish authorities that the sensibilities of their people were
wounded by any, to them, offensive demonstrations of a character usu-
ally connected with public ecclesiastical worship.

"I now quote Mr. Frelinghuysen's language literally. He says:

"'The point may be best illustrated by the question of the bells said
to have been hung by the missionaries in certain localities. It is pre-
sumed, from the nature of the case, that these bells have been hung in
ornpon private dwellings; that their purpose is to summon worshipers
to the private services held within those dwellings, and that (in connec-
tion with the internal arrangement of those dwellings, which, it is sup-
posed, are such as to facilitate the assemblage of persons outside of the
household) this use of bells is held bj' the Turks to indicate the use of a
private dwelling for the usual purposes of a church.

"' If the question was frankly presented by the Turkish Government
as to whether a bell, so hung and so rung, openlj", audibly, over an ex-
tended neigLborhood, is a needful or useful adjunct to a private dwell-
ing, the answer would be as frankly made that it was not so regarded
by this Government. It is not unlikely that an equivalent, a similarly
conspicuous Mohammedan demonstration upon a private dwelling in
any populous locality here or in any Christian country, would be sup-
pressed as a nuisance, and this without any idea of interfering with lib-
erty of worship or individual conscience.'

".Mr. Frelinghu3\seu also intimated to Mr. Wallace that it might be
well to inform the missionaries who sought his advice or intervention
in such nuitters, that the United States Government was not willing to
make the right to use church bells on private dwellings a diplomatic
question with Turkey, and that the part of discretion for them to pur-
sue would appear to be the avoidance of opportunities of giving offense
to the peoi)le among wliom their lot was cast.

" It is, however, quite clear in the cases now before me, that if antag-
onisms be created by acts in perfect accord with principles of domestic
and international law, as well as the letter of individual rights, the
parties are entitled to personal protection against any unlawful inter-
ference with those rights, by all means ordinarily within the power of
the local authorities in the first instance, and secondly, in case of denial
thereof, by the interposition of the Government of the country of the
complaining individual.

" The administrative a«d political system of civilized Governments is
designed to afford security to the individual in the enjoyment of his
lawful personal rigiits, and is supposed to be adequate for all usual
demands upon their power. The application of extraordinary means
for individual protection, especially if the assertion of the individual's
248

CHAP. III.J PEESECUTED JEWS. [§ 55.

rights be demoustratively aggressive, aud calculated from the nature
of things iu the locality to lead to coufiict, is hardly to be expected.

" You will, of course, understand that much of this instruction is
designed for your i)ersonal guidance. The tone of your dispatch, how-
ever, leads the Department to place the utmost reliance in your wisdom
and discretion in dealing with this class of questions."

Mr. Bayard, Sec. of State, to Mr. Jacksou, July 17, 1885; MSS. lust., Mexico.

The work of the American missionaries at the Caroline Islands, irre-
spective of its sectarian relations, with which the Department can
manifest no concern, is one of unostentatious and unselfish beneticence
which may be properly brought to the notice of the German and Spanish
Governments at the time of the controversy between them as to the
possession of these islands.

Mr. Bayard, Sec. of State, to Mr. Strobe], Sept. 7,1885; MSS. Inst., Spain.,
For further instructions as to intervention in behalf of niissionaines, see Mr.
Bayard, Sec. of State, to Mr. Cox, Aug. 17, 1885; MSS. Inst., Turkey; For.

Eel., 1885, cited infra, § H'SO.

•

(11) Good offices foe persecuted jews.

§ 55.

In 1840, at the time of the maltreatment of Jews at Damascus, our
"charge d'affaires at Constantinople was instructed to interpose his good
ofiices on behalf of the oppressed and persecuted race of the Jews in the
Ottoman dominions, among whose kindred are found some of the most
worthy and patriotic of our own citizens."

Mr. Forsyth, Sec. of State, to Mr. Kurschedt, Aug. 2G, 1840; MSS. Dom. Let.

The joining by a consul of the United States, in a Mohammedan
country, with consuls from other powers iu a protest against the con-
viction aud execution of a Jew for blasphemy, meets with the approval
of the Government of the United States.

Mr. Cass, Sec. of State, to Mr. Chandler, July 29, 1857; MSS. Inst., Barbary
Powers.

"It has been suggested to this Department, and the suggestion is
concurred in, that if the sympathy which we entertain for the inhu-
manly persecuted Hebrews, in the j^rincipalities of Moldavia aud Wal-
lachia, were made known to the Government to which you are accred-
ited, it might quicken aud encourage the eiforts of that Government to
discharge its duty as a protecting power i)ursuant to the obligatious
of the treaty between certain European states. Although we are not a
party to that instrument, and, as a rule, scrupulously abstain from in-
terfering, directly or indirectly, iu the i)ublic aflairs of that quarter,
the grievance adverted to is so enormous as to impart to it, as it were,
a cosmopolitan character, in the redress of which all countries, Govern-
ments, and creeds are like interested.

249

§ 55.] INTERVENTION. [CHAP. III.

" You will t:()ii.si'(|iuMitl,v coininuiiicatc on this subject with the niiu-
istcr for foix'ij;i» aliuirs of Russiii, in such a way as you may suppose
might be niosi, liiccly to compass the object in view."

Mr. Fish, .S.h;. of .State, to .Mr. Cnrtiii, July 22, 1872; MSS. Inst., RiLssiii ; For.
Kcl., 1-72.

" I ha\e to acknowleiloe the receipt of your letter of the ith iustant,
iu whicii you rejpiest that ])iotectiou be gran tedby our representatives
in the Ottoman (h)miuions to Israelites of Russian birth in and near
Jerusalem.

"As a lule our representatives abroad are permitted to extend
the protection of the United States only to native-born or natural-
ized citizens thereof, but the syin])athy of the United States for all
oppressed peoples in foreign countries has been freely manifested in
all cases where it could be done in accordance with the spirit of inter-
national courtesy and diplomatic usage. In granting such protection
it is requisite, of course, that the representatives of the country to
which the persons requiring i^rotection owe allegiance should request
it, and the authorities of the country in which they are at the time re-
siding consent to it. The desired protection will be extended, if these
conditions are complied with."

Mr. F. W. Seward, Acting Sec. of State, to Mr. Isaacs, June 29, 1877 ; MSS. Dom.
Let.

"At the invitation of the Spanish Government, a conference has re-
(^ently been held at the city of Madrid to consider the subject of pro-
tection by foreign powers of native Moors in the Empire of Morocco.
The minister of the United States in Spain, was directed to take part
iu the deliberations of this conference, the result of which is a conven-
tion signed on behalf of all the powers represented. The instrument
will be laid before the Senate for its consideration. The Government
of the United States has also lost no opportunity to urge upon that of
the Emperor of Morocco the necessity, in accordance with the humane
•c\iu\ enlightened si)irit of the age, of putting an end to the persecutions
which have been so prevalent in that country of persons of a faith other
than the Moslem, and especially of the Hebrew residents of Morocco."
President Hayes's Fonrtli Annual Message, 1880.

"No official interposition in behalf of Israelites wdio are Moorish
subjects c;ni be sanctioned, as this would be improper in itself, and
would be a ])rocedent against us which could not be gainsaid. Still,
there might be cases in which humanity w^ould dictate a disregard of
technicalities, if your ])ersonal intlueuce woidd shield Hebrews from
oppression."

Mr. Evarts, Sec. of State, to Mr. Mathews, March 20, 1878; MSS. Inst., Barb
Powers. (See same to same, July 2, 1878 ; id.)

250

PHAP. III.] PERSECUTED JEWS. [§ 55.

''It is, as you are ol" course aware, difficult lor a foreign Government
to make the full force of its iutlueuce felt in intervening for the protec-
tion of native sulyects of the state addressed. Nevertheless, in view
of the fact that the informal and friendly offices of the United States
have, at times before now, been used with good effect, through the in-
formal action of their representatives abroad in the interests of human-
ity and of that full religious toleration and equity which form so con-
spicuous a base for our own enlightened institutions, I shall be happy
to instruct the United States consul at Tangier that he is at liberty to
act, in the sense of youf request, so far as may be consistent with his
international obligations, and the efficiency of his official relations with
the Scheriffian Government."

Mr. Evarts, Sec. of State, to Messrs. Isaacs aud Wolf, July 1, 1678; MSS. Dom.
Let.

Although the mitigation of the persecution of the Hebrew race in
Roumania could not be made a sine qua non to the establishment of
official relations with that country, yet it may be made the subject of
kindly representations prior to the establishment of such relations.

Mr. Evarts, Sec. ol' State, to Mr. Kasson, August 9, 1879; MSS. lust., Austria.

'• I have received a letter from Messrs. S. Wolf and A. S. Solomons,
of this city, representing the ' Union of American-Hebrew Congrega-
tions,' in which they refer to newspaper statements indicating that the
Jews in Eussia have recently been subjected by the Government there
to extraordinary hardships, and expressing a desire that the minister
of the United States to Saint Petersburg may be instructed ' to make
such representations to the Czar's Government, in the interest of relig-
ious freedom and suffering humanity, as will best accord with the most
emphasized liberal sentiments of the American i^eople.' The writers of
the letter observe at the same time that they are well ' aware of the im-
propriety of one nation interfering with the internal affairs of another
in matters of a purely local character.'

" You are sufficiently well informed of the liberal sentiments of this
Government to perceive that whenever any pertinent occasion may
arise its attitude must always be in complete harmonj^ with the princi-
ple of extending all rights and privileges without distinction on account
of creed, and cannot fail, therefore, to conduct any affair of business or
negotiation with the Government to which you are accredited which may
involve any expression of the views of this Government on the subject
in a manner which will subserve the iuterests of religious freedom. It
would, of course, be inadmissible for the Government of the United
States to approach the Government of Eussia in criticism of its laws
and regulations, except so far as such laws and regulations may injuri-,
ously affect citizens of this country in violation of natural rights, treaty
obligations, or the provisions of international law, but it is desired that

251

§ 55.] INTERVENTION. [CHAP. III.

tb<i attitiulo of the miuister as regards questions of diplomatic contro-
versy which involve an expression of view on this subject may be wholly
consistent with the theory on which this Government was founded."

Mr. Evarts, Sec. of State, to Mr. Foster, April 14, ISttO ; MSS. Inst., Russia;
For. Rel., 1880. Adopted by Mr. Blaine, Sec. of State, to Mr. Barlholomei,
June 20, leSl ; MSS. Notes, Russia.

Although official interference on behalf of Hebrews in Tangier, not
citizens of the Unit<^.d States, is not permissible, yet the consul of the
United States at that ])lace may not improperly take such steps of in-
quiry as to the condition of Hebrews in Morocco as may tend to the
amelioration of their condition and may not be inconsistent with inter-
national obligations.

Mr. Evarts, Sec. of State, to Mr. Mathews, April 22, 1880, March 2, 1881; MSS.
lust., Barb. Powers. (See infra, § 164.)

" I have to acknowledge the receipt of Mr. Hoffman's No. 205 and
208, in relation to the expulsion of foreign Jews from certain- large
towns and cities of Russia, and the expulsion of Mr. Henry Pinkos, a
Jew and an American citizen, from St. Petersburg in particular. It ap-
pears from the latter dispatch that Pinkos has been allowed to remain
three mouths. Mr. Hoffman does not specifically state that Mr. Pinkos
or the other Jews referred to have been ordered to leave Russia as
well as St. Petersburg, but that is the implication of the dispatches.

" In reply I have to observe that in the presence of this fact, that an
American citizen has been ordered to leave Russia on no other ground
than that he is the professor of a j)articular creed, or the holder of cer-
tain religious views, it becomes the duty of the Government of the
United States, which impartially seeks to protect all its citizens of what-
ever origin or faith, solemnly, but with all respect to the Government of
His Majesty, to protest. As this order of expulsion applies to all for-
eign Jews, in certain towns or localities, at least, of Russia, it is of
course apparent that the same is not directed especially against the
Government of which Mr. Pinkos is a citizen, and, indeed, the long-
standing amity which has united the interests of Russia with those of
this Government would of itself forbid a remote supposition that such
might be the case. Notwithstanding this aspect of the matter, the
United States could not fail to look upon the expulsion of one of its
citizens from Russia, on the simple ground of his religious ideas or
convictions, except as a grievance, akin to that which liussia would
doubtless find in the expulsion of one of her own citizens from the
United States on the ground of his attachment to the ftiith of his
fathers.

" It is intimated in Mr. Hoffman's No. 205 that the reason of this order

may be found in the supposed implication of Jews in the plots formed

against the life of the Emperor, and in so far as this may be true the

Government of Russia has the entire sympathy of the Government of

252

CIIAP. III.] PERSECUTED JEWS. [§ 55-

the United States in all just preventive efforts ; and if there exists j;ood
evidence that Mr. Pinkos has been connected with any ofthese attempts
the Government of the United States cannot object to his expulsion on
that ground. Butsuch a charge does not api)ear to have been brought
against Mr. Pinkos; and it is confidently submitted to His Majesty's
Government whether in the event Mr. Pinkos should finally be expelled
from Russia, or be otherwise interrupted in his peaceful occupations, on
the sole ground that his religious views are of one kind rather than
another, he would not be justly entitled to make reclamation for the
damage and loss to which he might thereby be subjected."

Mr. Evarts, Sec. of State, to Mr. Foster, June 28, 1880; MSS.Inst., Russia; For.
Eel., 1880. As to expulsion of aliens, see infra, § 206.

" Your several dispatches, numbered 73, 74, and 75 of the 30th and
31st of December, ultimo, in relation to the treatment of American
Jews in Russia, have been received, and I have pleasure in commending
your zealous presentation of the cases of Pinkos and Wilczynski, and
of the general questions involved. The assurances you have received
as to the liberal treatment hereafter to be accorded, as an act of comity
and courtesy by the military authorities, to American citizens visiting
Russia, are fully appreciated.

"I have observed, however, that in some of your conversations and
writings with the foreign otfice, you give prominence to the natural
American sympathy with oppressed Jews elsewhere as a motive for our
solicitude as to the treatment of Jews in Russia. Such solicitude might
very properly exist.; but in your presentation of the facts you should
be careful to imi)ress that we ask treaty treatment for our aggrieved
citizens, not because they are Jews, but because they are Americans.
Russia's treatment of her own Jews, or of other foreign Jews resorting
tbither, may, in determinate cases, attract the sympathy of the Ameri-
can people, but the aim of the Government of the United States is the
specific one of protecting its own citizens. If the hardships to which
Russian and foreign Jews are subjected involves our citizens, we think
we have just grouuds for remonstrance and expectancy of better treat-
ment.

•' This Government does not know or inquire the religion of the Amer-
ican citizens it protects. It cannot take cognizance of the methods by
which the Russian authorities may arrive at the conclusion or con-
jecture that ayj' given American citizen professes the Israelitish fiiith.
The discussion of t!ie recent cases has not as yet developed any judicial
procedure whereby an American citizen, otherwise unoffending against
the laws, is to be convicted of Judaism, if that be an offense under
Russian law ; and we are indisposed to regard it as a maintainable
point that a religious belief is, or can be, a military offense, to be dealt
with under the arbitrary methods incident to the existence of a 'state

of siege.'

253

§ 55. I INTERVENTION. [CHAP. III.

" This Govermiieut is uot unmiudful of the difficulties under wliicb, as
is alleged, that of Kussia labors in dealing with those of her subjects
wlioni she may deem disaflected ; but the reasons adduced and methods
adoi>ted against them should have no application to American citizens
sojourning peacefully, for business or pleasure, in Russia, for they are
not to be (charged with abstract political disaffection to a Government
to which they owe no allegiance; and, if charged with the commission
of unlawful acts, they should have guilt explicitly imputed and proven.
In the latter case, the religion of the accused cannot be admitted as
])roof or presumption, either of guilt or of innocence.

"It is uot the desire of this Government to embarrass that of Kussia
by insistence upon these points with any degree of harshness, when the
disposition reported in your dispatches is so conciliatory, and when the
treatment offered may operate effectively to remove or prevent future
causes of complaint based on the ill treatment of American citizens
alleged to be Jews. It is most desirable, however, that you should uot
])retermit your efforts to bring the matter to such a stage as will insure
for peaceable and law-abiding Americans in Eussia lil^e treaty rights
and personal freedom of creed as Russians enjoy in the United States."

Mr. Evarts, Sec. of State, to Mr. Foster, March 3, 1881 ; MSS. Inst., Euss'ia ; For.
Eel., 1881. See infra, § 1.59.

" From a careful examination of the cases of grievance heretofore
reported by your legation, it appears that the action of the Russian
authorities toward Americans citizens, alleged to be Israelites, and
visiting Russia, has been of two kinds :

" First. Absolute prohibition of residence in Saint Petersburg and
in other cities of the Empire, on the ground that the Russian law per-
mits no native Jews to reside there, and that the treaty between Russia
and the United States gives to our citizens in Russian jurisdiction no
other rights or privileges than those accorded to native Russians. The
case of Henry Pinkos may be taken as a type of this class.

" Second. Permission of residence and commerce, conditionally on
belonging to the first guild of Russian merchants and taking out a
license. The case of Rosens trauss is in point.

" The ai)parent contradiction between these two classes of actions
becomes more and more evident as the question is traced backward.
Till' Department has rarely had presented to it any subject of inquiry
in which a connected understanding of the facts has proved more diffi-
cult. For every allegation, on the one hand, that native laws, in force
at the time the treaty of 1832 was signed prohibited or limited the
sojourn of foreign Jews in the cities of Russia, I find, on the other
hand, specific invitation to alien Hebrews of good repute to domicile
themselves in Russia, to pursue their business calling under appropriate
license, to establish factories there, and to purchase or lease real estate,
^loreover, going back beyond 1832, the date of our treaty, I observe
254

CHAP. III.] PERSECUTED JEWS. [§ 55.

that the imperial ukases coucerninj? the admission of foreigners into
Itussia are silent on all questions of faith; proper passports, duly vised
beinn; the essential requisite. And, fnrther back still, in the time of
the Emi)ress Catherine, I dis(M>ver explicit tolerance of all foreign relig-
ions laid (U)\vn as a fundamental policy of the Empire.

" Before examining the issues directly before us, it may not be out of
])lace to give a brief review of these historical data.

" The ukase of theEmpress Catherine, of 2 .'d February, 1784, although
concerning only the establishment of commercial relations with the
new possessions of Russia on the Black Sea, contains the following
notable declaration :

'"That Sebastopol, Kharson, and Theodocia be opened to all the na-
tions friendly to our Empire for the advantage of their commerce with
our faithful subjects, * * * that the said nations may come to these
cities in all safety and freedom. * * * Each individual of such na-
tion, whoever he may be, as long as he shall remain in the said cities
by reason of his business, or of his own pleasure, shall enjoy the free
exercise of his religion according to the praiseworthy precepts handed
down to us by the sovereigns our predecessors, and which we have
again received and confirmed. " that all the various nationalities estab-
lished in Russia shall praise God, the All Powerful, each one after the
worship and religion of his own ancestors," * » * ^ud ^^j promise,
upon our imperial word, to accord to all foreigners in these three cities
the same advantages which they already enjoy in our capital and sea-
port, St. Petersburg, &c.'

" The full text of this ukase, which breathes a sjiirit of large and en-
lightened tolerance in advance of the i)olicy of those dajs, is well
worthy of perusal, and may be consulted in vol. 4 of Martens' " Re-
cueil des Traites," 1st edition, Gottingen, 1795, i)ages 455-457.

" The imperial ordinance of the Czar Alexander I, of 13tli August,
1807, decrees a rigid system of passports for foreigners entering Russia,
and is applicable to 'all foreigners, of whatsoever nationality,' but inti-
mates no restriction on travel or sojourn in Russia by reason of race or
faith. This ordinance was modified and am[)litied by the ukase of 25th
February, 1817, but still without any manner of religious proscrii)tion
or restriction.

" From this time down to 18G0 I can find no trace of the enforcement,
especially against American citizens, of the restrictions against Jewish
travel and residence which are stated to have existed when our treaty
with Russia was signed. It is a significant circumstance that the ac-
knowledged authorities on ])rivate international law, writing during
this period upon the legfslation of all Europe as affecting the persons
and rights of aliens, make no reference to such disabilities. Even the
painstaking Foelix is silent on this point, although devoting much space
to the treatment and rights of aliens in Russia. 1 do not desire to be
hftre understood as arguing that the asserted disabilities did not exist

;J55

§ 55.] INTERVENTION. [CHAP. III.

at that timo. The domestic history of the Eussian Empire shows
phiinly the restrictions placed upou native Hebrews, and especially
those of Polish origin, the efforts to confine them to certain parts of the
Enii>ire, and the penalties sought to be imposed to deter them from
mingling with the Christian subjects of the Czar. But the same his-
tory shows the gradual relaxation of those measures, until, in the cap-
ital itself, the native Israelite population is said to number some thirty
thousand souls, with their synagogues and sectarian schools; while a
special ukase of the late Czar distinctly recognizes to foreign Hebrews
every privilege of residence and trade, in a certain guild, which native
Christian subjects possess.

"This ukase of the Emperor Alexander II, of 7th of June, 1860, after
Ijremising that the need of commercial development and the principles
of international reciprocity make it proper to concede 'to foreigners
dwelling in Russia the same rights as those which our subjects enjoy
already in the principal countries of I-^urope,' proceeds to permit all
aliens to enter any of the trading guilds on the same footing as natives
and to thereupon enjoy all the commercial privileges which these guilds
confer upon native Russian traders, with the following qualification :

" ' First remark. — Foreign Hebrew subjects, known by reason of
their social position and the wide extent of their commercial operations,
who come from foreign lands, may, after the established formalities,
that is to saj', upon a special authorization, issued in each case by the
ministers of finances, of the interior, and of foreign affairs, trade in the
Empire and establish banking-houses herein, upon procuring the license
of a merchant of the first guild. It is likewise permitted to these same
Israelites to establish factories, to acquire and to lease real estate con-
formably to the prescriptions of the present ukase.'

"This provision, it will be observed, extends to the whole territory of
the Empire. If, as I understand the response of the Russian ministry
in the case of Henry Pinkos, native Israelites are forbidden by law from
residing or trading in the capital, then this ukase places all foreign
Jews (whether belonging to treaty powers or not) on a more favored
footing. But if native Hebrews, as a iact, are permitted to reside in
St. Petersburg and engage in trade in other guilds than the so-called
'first guihl,' there may then well be question whether such restriction
to a i)articular guild in the case of an American Israelite is consonant
with the express provisions of the treaty of 1832, Article I. Tliis point
was, in fact, raised in the case of Theodore Rosenstrauss, at Kharkoff,
which is narrated at length, with all the correspondence therein ex-
changed, in Mr. Sewell's dispatch No. 20, of December 15, 1873; but it
does not seem to have been then exhaustively considered whether the
complainant received, under the treaty, the like treatment with the na-
tive Hel)rews of Kharkoff, or whether he was constrained to obey the
ukase of 1860, which, as I have above remarked, is framed for general
application to all aliens and irrespective of trea ty rights. It is, however,
256

CHAP. III.] PERSECUTED JEWS. [§ 55.

not my present purpose to reargue this old case, but simply to call at-
tention to the fact that Russian law may, and possibly does, modify and
restrict treaty rights. The Eoseustrauss case was special in its nature,
and concerned commercial privileges under a promulgated license law.
of the Empire. It may be necessary, at some future time, to discuss the
questions it involves, but just now I am concerned with a different class
of cases, namely, those of American citizens visiting Russia for private
business or for pleasure and travel, and duly i)rovided with the pass-
ports of this Government, authenticating their national character and
their consequent right to all the S])ecific guarantees of our treaty.

" This brings me again to the cases of Pinkos and Wilczyn^i. It is
unnecessary here to recapitulate the facts tberein, as they are amply
presented by the files of your legation, and by the correspondence had
with the Russian foreign office. It is sufficient to characterize them as
instances of the notified expulsion from St. Petersburg, by the i)olice or
military authorities, of American citizens, not because of j'.uy alleged
failure to comply with the ukase of 18G0, or with the Russian commer-
cial code, but simply on the allegation, unsupported by proof, that they
professed the Israelitish faith, and that the law forbade the sojourn of
native Israelites in the imperial capital. On this brief formulation of
the case, this Government believes that, under its treaty with Russia,
and in view of iis treatment of Russian subjects resorting under like
circumstances to the United States, it has just ground for complaint,
and expectancy of better treatment from the Government of Russia.

" The provision of our treaty of 1832 with Russia, governing the com-
mercial i>rivileges of the citizens and subjects of the two countries, is as
follows :

'"Article I. There shall be between the territories of the high con-
tracting parties a reciprocal liberty of commerce and navigation,

"•The inhabitants of their resjiective states shall mutually have lib-
erty to enter the ports, places, and rivers of each party wherever foreign
commerce is permitted. They shall be at liberty to sojourn and reside
in all parts ivhatsoever of said territories, in order to attend to their af-
fairs; and they shall enjoy, to that effect, the same security and protec-
tion as natives of the country wherein they reside, on condition of
their submitting to the laws and ordinances there prevailing, and par-
ticularly to the regulations in force concerning commerce.'

" Article X confers specific personal rights reciprocally. In respect
of this article an infringement alike of the letter and the spirit of the
treaty is not only possible, but probable, under the rigid interpretation
of the Jewish laws upon which Russia seems disposed to in.sist. Its
stipulations concern the right to dispose of personal property in Russia
owned by or falling to American citizens, who may receive and disi)ose
of inheritances and have recourse to the courts in settlement of ques-
tions arising thereunder. It certainly could not be seriously claimed
or justly admitted that an American Hebrew, coming within the pro-
^. ^lis. 102— VOL. I 17 257

§ 55.] INTERVENTION. [CHAP. III.

visions of this article, is to be treated as a candidate for commercial
privileges, and required to take out a license as a trader of the first guild,
subject to the approval of his application by the ministries of finance,
interior, and foreign affairs. A personal right, not a mercantile privilege,
is conferred. To bar an American citizen whose rights might be so con-
cerned from personal appearance in i)rotection of those rights would be
a distinct departure from the engagement of the treaty ; while to sup-
pose that his case might come under the discretional authority of the
police or the military power, which might refuse his personal sojourn
in any part of the Empire, or allow it under conditions depending on
their godd will, is to suppose a submission of the guarantees of the
treaty to a tribunal never contemplated by its framers.

" Upon a case arising, this Government would hold that the treaty
conferred specific rights on all American citizens in the matter of the
disposition of their personal property, irrespectiye of any conditions
save those which the article itself expressly creates ; that their actual
presence when necessary to protect or assert their interests is abso-
lutely guaranteed whenever and for whatever time it may be needful;
and that this international engagement sui)ersedes any municipal rule
or regulation which might interfere with the free action of such indi-
viduals.

"It would be, in the judgment of this Government, absolutely inadmis-
sible that a domestic law restraining native Hebrews from residence
in certain parts of the Empire might operate to hinder an American cit-
izen, whether alleged or known to profess the Hebrew faith, from dis-
posing of his property, or taking possession thereof for himself (subject
only to the laws of alien inheritance) or being heard in person by the
courts which, under Eussian law, may be called upon to decide matters
to which he is necessarily a party. The case would clearly be one in
which the obligation of a treaty is supreme, and where the local law
must yield. These questions of the conflict of local law and interna-
tional treaty stipulations are among the rriost common which have en-
gaged the attention of publicists, and it is their concurrent judgment
that where a treaty creates a privilege for aliens in express terms, it
cannot be limited by the operation of domestic law without a serious
breach of the good faith which governs the intercourse of nations. So
long as such a conventional engagement in favor of the citizens of an-
other state exists, the law governing natives in like cases is manifestly
inapplicable.

"I need hardly enlarge on the point that the Government of the
United Statesconcludes its treaties with foreign states for the equal pro-
tection of all classes of American citizens. It can make absolutely no
discrimination between them, whatever be their origin or creed. So that
they abide by the laws, at home or abroad, it must give them due pro-
tection and expect like protection for them. Any unfriendly or discrim-
inatory act against them on the part of a foreign power with which we
258

CHAP. III.] PERSECUTED JEWS. [§ 55.

are at peace would call for our earuest remonstrance, whether a treaty
existed or not. The friendliness of our relations with foreign nations
is emphasized by the treaties we have concluded with them. We have
been moved to enter into such international compacts by considerations?
of mutual benefit and reciprocity, by the same considerations, in short,
which have animated the Russian Government from the time of the
noble and tolerant declarations of the Empress Catherine in 1784 to
those of the ukase of 18G0. We have looked to the spirit rather than
to the letter of those engagements, and believed that they should be in-
ter])reted in the broadest way ; and it is, therefore, a source of unfeigned
regret to us when a Government, to which we are allied by so many his-
torical ties as to that of Russia, shows a disposition in its dealings with
us to take advantage of technicalities, to appeal to the rigid letter and
not the reciprocal motive of its international engagements in justifica-
tion of the expulsion from its territories of peaceable American citizens
resorting thither under the good faith of treaties and accused of no
wrong-doing or of no violation of the commercial code of the land, but
of simple adherence to the faith of their fathers.

."That the two American citizens whose unfortunate cases have
brought about this discussion were not definitely expelled from St. Pe-
tersburg, but were allotted, by the military authorities, a brief time to
arrange their private aflairs, said to coincide with the usual time during
which any foreigner may remain in the Empire under his original pass-
port, does not alter the matter as it appears to our eyes. The motive
alleged remains the same, and the princii)le involved is one recognized
neither by our fundamental laws nor by any of the conventions we have
concluded with foreign states.

" It must not be forgotten that this issue, of the banishment of our
citizens from a friendly territory by reason of their alleged religion, is
a new one in our international relations. From thetime when the treaty
of 1832 was signed down to within a verj^ recent period, there had been
nothing in our relations with Russia to lead to the supposition that our
flag did not carrj" with it equal protection, to every American within
the dominions of the Empire. Even in questions of citizenship affect-
ing the interests of naturalized citizens of Russian origin, the good dis-
position of the Imperial Government has been on several occasions
shown in a most exemplary manner ; and I am sure the actual counselors
of His Majesty cannot but contemplate with satisfaction the near ap-
proach made in 1874 to the arrangement of negotiations for a treaty of
naturalization between the two countries. On that occasion, as will be
seen by consulting Mr. Jewell's No. 02, of April 22, 1874, the only re-
maining obstacle lay in the statute of the Empire touching the con-
ferment and loss of citizenship, of which the examining commission and
the consultative council of state recommended the modification in a sense
compatible with the modern usage of nations.

^59

§ 55.] INTERVENTION. [CHAP. III.

" I can readily conceive that statutes bristling with difiBculties remain
unrepealed in the volumes of the law ot'Eussiaas well as of other nations.
Even we ourselves have our obsolete " Blue Laws"; and their literal
enforcement, if such a thing were possible, might today subject a Rus-
sian of free-thinking proclivities, in ^Maryland or Delaware, to the pen-
alty of having his tongue bored through with a red-hot iron for blas-
phemy. Happily the spirit of progress is of higher authority than the
letter of outworn laws ; and statutory enactments are not so inelastic
but that they relax and change with the general advancement of peo-
ples in the path of tolerance.

" The simple fact that thousands of Israelites to-day pursue their call-
ings unmolested in St. Petersburg, under the shadow of ancient jn'o-
scriptive laws, is in itself an eloquent testimony to the principle of prog-
ress. And so, too, in Spain, where the persecution and expulsion of
the Jews is one of the most notable and deplorable facts in history, and
where the edicts of the earlier sovereigns remain unrepealed, we see to-
day an offer of protection and assured right of domicile made to the
Israelites of every race.

" I leave out of consideration in the present instruction the questipn
whether the citizens or subjects of other nations are more or less fa-
vored than our own in this regard. I have not, however, failed to notice
the statement made to you by Mr. de Giers, in one of your reported
conversations with him, that German and Austrian Jews are subjected
to the proscriptions in question, and the implication therefrom that if
the Governments of Germany and Austria do not complain, there is no
reason why we should.

" It is not for me to examine or conjecture the reciprocal motives of
policy or of international convention which may govern in these in-
stances. Neither have I failed to remark the seeming uncertainty with
which the British Government has approached the case of the English
Israelite, Mr. Lewisohn, who was recently required to quit St. Peters-
burg, notwithstanding that the personal guarantees of the Anglo-Rus-
sian treaty of January 12, 1859, in its eleventh, twelfth, and thirteenth
articles, are more particular than in our own treaty, and were, pre-
sumably, like our own stipulations, framed with the intent of securing
impartial rights and protection in Russia. I am perfectly willing to
rest tuy argument on the moral weight of our treaty of 1832, although
of course not averse to availing myself of any support which may come
from any other quarter to fortify what we conceive to have been our
clear purpose in executing that instrument. And under no circum-
stances would 1 in the name of this Government be willing to accept
a less measure of impartial privilege for a citizen of the United States
visiting or sojourning in Russian territory than is assured to aliens in
the like case by any stipulation with or usage toward any other nation
on the part of Russia.

" I had the honor in my letter of the 20th ultimo to Mr. Bartholomei
260

CHAP. III.] PERSECUTED .JEWS. [§ 55.

to acquaint bim with the geueral views of the President in relation to
this matter.

" I cannot better bring this instruction to a close than by repeating
and amplifying those views which rlie President so firmly holds, and
which he so anxiously desires to have recognized and responded to by
the Russian Government.

" He conceives that the intention of the United States in negotiating
and concluding the treaty of De(;ember 18, 1832, and the distinct and
enlightened reciprocal engagements then entered into with the Govern-
ment of Russia, give us a moral ground to expect careful attention to
our opinions as to its rational interpretation in the broadest and most
impartial sense ; that he would deeply regret, in view of the gratifying
friendliness of the relations of the two countries which he is so desirous
to maintain, to find that this large national sentiment fails to control
the present issue, or that a narrow and rigid limitation of the construc-
tion possible to the treaty stipulations between the two countries is
likely to be adhered to ; that if, after a frank comparison of the views
of the two Governments, in the most amicable spirit and with the most
earnest desire to reach a mutually agreeable conclusion the treaty stip-
ulations between the United States and Russia are found insufficient
to determine questions of nationality and tolerance of individual faith,
or to secure to American citizens in Russia the treatment which Rus-
sians receive in the United States, it is simply due to the good relations
of the two countries that these stipulations should be made sulficient
in these regards ; and that we can look for no clearer evidence of the
good will which Russia professes toward us than a frank declaration
of her readiness to come to a distinct agreement with us on these points,
in an earnest and generous spirit.

" I have observed that in your conferences on this subject heretofore
with the minister for foreign affairs, as reported in your dispatches,
you have on some occasions given discreet expression to the feelings of
sympathy and gratification with which this Government and peoi)le re-
gard any steps taken in foreign countries in the direction of a liberal
tolerance analogous to that which forms the fundamental principle of
our national existence. Such expressions were natural on your part,
and reflected a sentiment which we all feel. But in making the Presi-
dent's views known to the minister I desire that you will carefully sub-
ordinate such sentiments to the simple consideration of what is con-
scientiously believed to be due to our citizens in foreign lands. You will
distinctly impress upon him that, regardful of the sovereignty of Russia,
we do not submit any suggestions touching the laws and customs of the
Empire except where those laws and customs conflict with and destroy
the rights of American citizens as secured by treaty obligations.

" You can further advise him that we can make no new treaty with
Russia, nor accept any construction of our existing treaty, which shall
discriminate against any class of American citizens on account of their
religious faith. 261

§ 55.] INTERVENTION. [CHAP. III.

" I cannot but feel assured that this earnest presentation of the views
of this Government will accord with the sense of justice and equity of
that of Kussia, and that the questions at issue will soon find their natu-
ral solution in harmony with the noble spirit of tolerance which per-
vaded tlie ukase of the Empress Catherine a century ago, and with the
statesmanlike declaration of the principle of reciprocity found in the
later decree of the Czar Alexander II in 1860.

"You may read this dispatch to the minister for foreign affairs, and
should he desire a copy, you will give it to him."

Mr. Blaine, Sec. of State, to Mr. Foster, July 29, 1881 ; MSS. Inst., Russia ; For.

Rel.,lH81.
As to intervention in behalf of ''Mortara Boy," see supra, § 52.

" I am well aware that the domestic enactments of a state toward its
own subjects are not generally regarded as a fit matter for the intervention
of another independent power; but when such enactments directly affect
the liberty and property of foreigners who resort to a country under
the supposed guarantee of treaties framed for the most liberal ends —
when the conscience of an alien owing no allegiance whatever to the
local sovereignty is brought under the harsh yoke of bigotry or preju-
dice which bows the necks of the natives, and when enlightened ap-
peals made to humanity, to the principles of just reciprocity, and to the
advancing spirit of the age in behalf of tolerance are met with intima-
tions of a purpose to still further burden the unhappy sufferers, and so
to necessarily increase the disability of foreigners of like creed resorting
to Eussia, it becomes in a high sense a moral duty to our own citizens
and to the doctrine of religious freedom we so strongly uphold to seek
proper protection for those citizens and tolerance for their creed in for-
eign lands, even at the risk of criticism of the municipal laws of other
states.

"It cannot but be inexpressibly painful to the enlightened statesmen
of Great Britain, as well as of America, to see a discarded prejudice of
the dark ages gravely revived at this day — to witness an attempt to
base the policy of a great and sovereign state on the mistaken theory
that thrift is a crime, of which the unthrifty are the innocent victims,
and that discontent and disaffection are to be diminished by increasing
the causes from which they arise."

Mr. Blaine, Sec. of State, to Mr. Lowell, Nov. 22, 1881; MSS. Inst., Great
Britain.

" The prejudice of race and creed having in our day given way to the
claims of our common humanity, the people of the United States have
heard, with great regret, the stories of the sufferings of the Jews in
Russia. It may be that the accounts in the newspapers are exaggerated,
and the same may be true of some private reports. Making, however,
due allowance for misrepresentations, it can scarcely be doubted that
much has been done which a humane and just person must condemn.
262

CHAP. III.] PERSECUTEi) JEWS. [§ 55.

'' The President, of course, feels that the Government of the Emperor
shouhl not be held morally responsible for acts which it considers
wrong, but which it may be powerless to prevent.

"If that be true of this case, it would be worse than useless for me to
direct you, as the representative of the United States, to give official
expression to the feeling which this treatment of the Jews calls forth in
this country. Sliould, however, the attitude of the Eussian Govern-
ment be different, and should you be of the opinion that a more vigorous
eflbrt might be put forth for the prevention of this great wrong, you will,
if a favorable opportunity offers, state, with all proper deference, that
the feeling of friendship which the United States entertains for Russia
prompts this Government to express the hoiDC that the Imperial Gov-
ernment will find means to cause the persecution of these unfortunate
fellow-beings to cease.

" This instruction devolves a delicate duty upon you, and a wide dis-
cretion is given you in its execution. However much this Republic
may disapprove of affairs in other nationalities, it does not conceive
that it is its right or province officiously and offensively to intermeddle.
If, however, it should come to your knowledge that any citizens of the
United States are made victims of the persecution, j^ou will feel it your
duty to omit no effort to protect them, and to rej^ort such cases to this
Department."

Mr. Frelinghuysen, Sec. of State, to Mr. Hoffman, Ap. 1.5, 1882; MSS. Inst., Rus-
sia; For. Eel., 1882.

"I have received a dispatch, No. 429, of the 7th 'instant, from Mr.
Heap, consul-general at Constantinople, in 'reference to the expulsion
from Safed, Palestine, of two American citizens, Louis Lubrowsky and
brother, Hebrews by nativity, because of tbeir religious faith. It ap-
pears that these brothers on their recent arrival at Safed were required
to give bonds in the sum of 400 Turkish pounds to leave the country in
ten days or obtain a special license to remain.

" The facts in detail will be found narrated in the correspondence
which, it seems, Mr. Heap brought to the attention of Mr. Emmet on
the 22d ultimo and 3d instant. For this reason I do not inclose to j^ou
a copy of Mr. Heap's dispatch, but you will immediately call upon him
for such further particulars as you may desire, should the facts not be
fully before your legation.

"This case is commended to your attention as one in which the- De-
partment entertains the confidence that you will take the greatest in-
terest and with which you will be competent to deal as a due regard
for the rights of American (;itizens requires.

" It is to be borne in mind, however, that those rights, under treaties,
are to be measured in a certain degree by the rights conceded to other
foreigners of the most favored nation. You will be careful, therefore,
to make' no untenable demand as of right. But friendship and inter-

2C3

§ 56.] INTERVENTION. [CHAP. III.

rational comity entitle the United States to ask and expect that no race
or class distinction shall be made as regards American citizens abroad,
and this Government cannot acquiesce in any such prescriptive measures
which compel its citizens to abandon Turkey solely on account of their
religious proclivities.

"Mr. Heap's dispatch will acquaint you with the extent of his action
and that of the consul at Beirut to prevent this wrong.''

Mr, Bayard, Sec. of State, to Mr. Cox, Aug. 29, 1885; MSS. Inst., Turkey; For.
Eel.. 1885.

" Your No. 22 of the 24th instant has been received, and the action
of Mr. Heap, therein reported, in opposing the order of the Turkish
authorities for the expulsion of the brothers Lubrowsky, American citi-
zens, from Safed, in Palestine, solely because of their Semitic faith,
meets with the approval of the Department as anticipating the instruc-
tions sent to you on the 29Lh of August last.

" This Government cannot assent to any religious test being applied
to citizens of the United States by any power whatever. No officer of
the United States is constitutionally competent to admit the validity of
such a test. Hence, Mr. Heap's telegraphic instructions to Mr. Eobe-
son that the Lubrowsky brothers should not yield to the order of expul-
sion, unless force were employed, is approved as discreet and proper.
It is hoped that your anticipations may be realized, and that, in view
of the attitude taken by the legation, the matter may rest without fur-
ther proceedings against the parties."

Mr. Bayard, Sec', of State, to Mr. Cox, Oct. 15, 1885; MSS. Inst., Turkey; For.

ReL, 1885.
As to persecution of Jews in Russia, see speecli of Mr. S. S. Cox, July 31, 1882;

pamphlet, library Dep. of State.
As to persecution of Jews inRoumania, see Senate Ex. Doc. No. 75, 42d Cong.,

2d seas. ; as to correspondence with Great Britain as to persecution of Jews,

see Brit, and For. State Papers, 1871-'2, vol. 62.
As to expulsion of offensive residents, see infra, f} 206.

(12) Non-prohibition of publications or subscriptions in aid
OF political action abroad.

§ 56.

That a neutral may permit free discussion, in his territory, in respect to bel-
ligerents, see infra, $ 389.
As to expressions of sympathy with liberal political movements, see supra, $ 47a.

Libelous letters addressed in this country by a citizen of the United
States to a foreign minister may be the subject of judicial prosecution,
but not of diplomatic interference.

Mr. Hunter, Acting Sec. of State, to Mr. Sartiges, May 22, 1852; MSS. Notes,
France. See Mr. Marcy, Sec. of State, to Mr. Sartiges, June 2, 1856.

"The Government of the United States have no jurisdiction over the
press in the respective States, and if such jurisdiction existed, its ex-
264

CHAP. III.] LIBEETY OF THE PRESS. [§56.

ercise with a view to prevent or to iuliict punishment for any publica-
tion criticising or condemning the course of public measures in other
countries, or in our own, would be an experiment upon the feeble for-
bearance, little likely to be made, and if made, sure to be defeated."

Mr. Cass, Sec. of State, to Mr. Moliua, Nov. 26, 18G0 ; MSS. Notes, Central
America.

" Free discussion, by speech and in the press, in public assemblies,
and in private conversation, of the Cretan insurrection, and of all other
political transactions and niovements occurring- either abroad or at
home, is among the rights and liberties guaranteed by the "Constitution
of the United States to every citizen and even to every stranger who*
sojourns among us, and is altogether exempt from any censure or injury
on the part of the Government of the United States. The opponents
of Crete and the friends of Turkey exercise very freely the same right.
On the other hand, this Government makes no inquiry concerning what
is preached, spoken, or written in Turkey, or in any other country, by
the citizens or subjects thereof, although the matters discussed may be
deeply interesting to the American people. The maxim \yas long since
adopted in the United States that even error of opinion may be safely
tolerated where reason Is left free to combat it."

Mr. Seward, Sec. of State, to Blacque Bey, Jan. 20, 1869 ; MSS. Notes, Turkey.

The Executive of the United States cannot initiate proceedings for
the prosecution of parties in Xew York charged with libeling foreign
sovereigns.

Mr. Fish, Sec. of State, to Mr. Eoberts, June 1, 1869; MSS. Notes, Spain.

" This Government and people feel nothing but detestation for such
publications [i)rompting assassination and arson in England]. The ques-
tion whether a journal making publications of the character of those re-
ferred to could or could not by process of law be suppressed, as calcu-
lated to lead to an infraction of our treaty engagements, or whether Con-
gress could properly legislate on the subject, does not now demand the
expression of an opinion. The Government of the United States knows
the effect of the publications in question, and liow to treat them. We
have a large population of Irish people, and of those directly descended
from them. They are attached to this country, obedient to its laws, and
for the most part citizens of this liepublic. They naturally have a friend-
ship for their kinsmen in the United Kingdom, and perhaps a pasTsive
sympathy with them in the agitations in Ireland, but as their sympathy
does not manifest itself in overt acts, we think it would not be wise by
any governmental action to excite in them hostility towards a nation
with which we are at peace, and thus disturb the cordiality which it is
both the pleasure and the interest of this Rei)ublic to maintain with
Her Majesty's Government. These considerations have weight and
influence ; but what is conclusive on the subject is that this Govern-

265

^56.] INTERVENTION. [cHAP. lit.

lueiit cannot consent, by its official notice, to emphasize, dignify, and
give prominence to articles of the character complained of, which,
while unnoticed, are impotent. Her Majesty's Government should, if
satisfied with the friendly purpose of this Government, accord to It
the right when it thinks its own interests are involved, of shaping its
policy according to its own discretion. This right the Government of
the United States must exercise."

Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, Dec. 4^ 1883; MSS. Inst.,
Great Britain.

'*This Gdvemment is as deeply sensible as any other of the danger
to all government and society from lawless combinations which may
secretly plot assassination and destruction of life and property. At
the same time it can only proceed against offenders, or suspected offend-
ers, in accordance with law ; and it is at least doubtful whether any law
is now in existence in this country by which the publishers of the paper
or papers in question can be called to account. I am not aware that
such a law exists in any country. It is but recently that any law for
the punishment of incitement to the commission of murder in foreign
countries was placed on the British statute book.

" The present laws of the United States only aim to meet the cases
of actual overt acts of hostility against a friendly nation when such
acts are committed within the territory of the United States. So far
as I remember, this is the full extent to which other nations have gone
in tJjis direction."

Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, Nov. 24, 1884 ; MSS. Inst.,
Great Britain.

It was held in 1794, by Mr. Eandolph, when Secretary of State, fol-
lowing the opinion of the Attorney-General, that a libel on the British
minister is indictable at common law in the Federal courts.

Mr. Eandolph, Sec. of State, to Mr, Harrison, Sept. 18, 1794 ; *MSS. Dom. Let.

This view, however, was exploded by the subsequent rulings of the
Supreme Court that the Federal court have iio common-law criminal
jurisdiction.

" In a charge by Chief Justice McKean, in Philadelphia, in 1791, the
attention of the grand jury was called to certain publications of Cob-
bett and others, grossly attacking the King of Spain as the supple tool
ot the French nation. From this charge, the following passages are
extracted :

;"At a time when misunderstandings prevail between the Republic
of France and the United States, and when our General Government
have appointed public ministers to endeavor to effect their removal, and
restore the forinor harmony, some of the journals or newspapers in the
city of Phila(loli)hia have teemed with the most irritating invectives,
couched in the most vulgar and opprobiious language, not only against,
the French nation and their allies, but the very men in power with
whom the ministers of our country are sent to negotiate. These pub-
2G6

CHAP. III.] LIBERTY OF THE PEESS. [§ 56.

lications have an evident tendency, not only to frustrate a reconcilia-
tion, but to create a rupture and provoke a war between the sister
Eepublics, and seem calculated to vilify, — nay, to subvert, — all republi-
can Governments whatever.

"'Impressed with the duties of my station, I have used some en-
deavors for checking these evils, by binding over the editor and i)nnter
of one of them — licentious and virulent beyond all former example —
to his good behavior; but he still perseveres in his nefarious publica-
tions. He has ransacked our language for terms of insult and reproach,
and for the basest accusations against every ruler and distinguished
character in France and Spain with whom we chance to have any in-
tercourse, which it is scarce in nature to forgive. In brief, he braves
his recognizance and the laws. It is now with you, gentlemen of the
grand jury, to animadvert on his conduct. Without your aid it cannot
be corrected. The Government that will not discountenance, may be
thought to adopt it, and be justly chargeable with all the consequences.

'"Every nation ought to avoid giving any real oiiense to another.
Some medals and dull jests are mentioned and represented as a ground
of quarrel between the English and Butch in IGTli, and likewise called
Louis the XIV to make an expedition into the United Provinces of the
Netherlands in the same year, and nearly ruined the Commonwealth.

'" We are sorry to find our endeavors in this way have not been at-
tended with all the good effects that were expected from them. How-
ever, we are determined to pursue the prevailing vice of the times with
zeal and indignation, that crimes may no longer appear less odious for
being lashionable, nor the more secure from punishment from being
popular.' (See W^hart. St. Tr., 325 ; Whart. Cr. L., § 1612a.)

"The bill against Cobbett was ignored by the grand jury, as, under
the circumstances, might have been expected. The party contest be-
tween the friends of a French and the friends of an English alliance
was then at its height, and never was there a party couijuest more bit-
ter and more unscrupulous. The prosecution was instituted no doubt
by persons in sympathy with the Democratic party, and the bill was
signed by Mr. Jared Ingersoll, then the Democratic attorney-general
of Pennsylvania, and it was not to be expected that those members of
the grand jury who detested France would give it their votes. But
while this explains the ignoring of the bill against Cobbett, on the
same principle as may be explained the verdict of acquittal in Ber-
nard's case, the result does not in any way affect the authority of Chief
Justice McKean's ruling as a matter of law. He was not only a learned,
well-trained, and experienced lawyer, but he was thoroughly familiar
with the history of our institutions, and with the relation of the States to
the Federal Government and to European sovereignties. He had been
for seventeen years a member of the Pennsylvania legislature. He
was the only member of the Continental Congress who remained in
continuous service during the whole llevolutiouary war. He was a
signer of the Declaration of Independence. He was President of the
Congress in 1781. He was chief justice of Pennsylvania from 1777 to
1799, and during that long period he was regarded by the bar of Phila-
delphia, a bar of singular learning and cultivation, as a master in juris-
prudence, and as a judge who never permitted himself to be swayed
by partisan or personal temper. Xor was there at that time any dis-
sent from the position that if libels on foreign countries were published
in the State of Pennsylvania, it was the function of the State of Penn-
sylvania to prosecute the authors of these libels. Congress, in Mr.

267

§^ 56a, 57.] INTERVENTION. [chap. III.

Adams's adniinistration, did not hesitate to pass a statute makinjr 'sedi-
tious libels' iiulietablc in Federal courts, but it limited its action to such
libels as attacked tlie Fedei-al system. Libels on foreign powers were
left to the action of the several States, and within the jurisdiction of
such States they still remain."

t) Crim. Law Mag., 176.

(13) Charitable contributions abroad.

§ 56a.

Official contributions to charitable objects do not not fall within the
range of Congressional or Executive power. But favors may be granted
in aid of such objects by special passports, or, in certain cases, by re-
missions of duty. " Of such a character was the assistance rendered by
the Government of the United States for transporting to Ireland the
contributions of provisions spontaneously offered by the American
people."

I Halleck, Int. Law (by Baker), 407.

III. IXTEEFENTION OF EUROPEAN SOVEREIGNS IN AFFAIRS OF THIS
CONTINENT DISAPPROVED— MONROE DOCTRINE.

§57.

The "Holy Alliance" took formal shape in a treaty signed at Paris
on September 26,1815, between the Emx>erors of Austria and of Eussia
and the King of Prussia, acting as absolute sovereigns, without the in-
tervention of responsible ministers or diplomatic agents. Great Britain
took no part in this alliance (although George lY, then Prince Regent,
no doubt personally sympathized with it), for the reason that by the
constitution of Great Britain the sovereign can only act through re-
sponsible ministers. The ostensible object of the alliance was the sub-
ordination of ])olitics to the Christian religiou. The real principle,
however, was the establishment of jure divino autocracies, each sovereign
incorporating in liimself "the Christian religion" as well as supreme
political power. Had the three sovereigns Avho originated the scheme
been able to agree, they might have dominated the civilized world. But,
from the nature of things, three jure dii-'mo autocrats, each claiming for
his opinions divine authority, could not be expected to agree perma-
nei»tly; and so it ultimately turned out.

Mr. Canning, in his correspondence with Mr. Rush, our minister in
England, in bS2;>, having suggested that the United States should take
decided ground against the intervention of the Holy Alliance in South
AnuMK-a, Mr. Monroe sent the papers to Mr. Jefferson, asking his advice.
To this request Mr. Jefferson answered as follows:

" MoNTicELLO, October 24, 1823.
" Dear Sir : The question presented by the letters you have sent
me is tlu' most momentous which has ever' been offered to mv contem-
plation since that of Independence. That made us a nation • this sets
our comi)ass and points the course which we are to steer through the
ocean of time o])ening on us. And never could we embark upon it un-
263

CHAP. III.] MONROE DOCTRINE. [§57.

der circumstauces more auspicious. Our first and fundamental maxim
should be never to entangle ourselves in the broils of Europe ; our sec-
ond, never to suffer Europe to intermeddle with cis-Atlantic affairs.
America, North and South, has a set of interests distinct froiu those of
Europe, and peculiarly her own. She should, therefore, have a system
of her own, separate and ai)art from that of Earoi)e. While the last is
laboring;' to become the domicile of despotism, our endeavor should
surely be to make our hemisphere that of freedom.

"One nation, most of all, could disturb us in this pursuit; she now
offers to lead, aid, and accomi)any us in it. I>y accedingto her proi)o-
sition we detach her from the bands, bring her mighty weight into the
scale of free government, and emancipate a continent at one stroke,
which might otherwise linger long in doubt anddifliculty. Great Brit-
ain is the nation which can do us the most harm of any one or all on
earth, and with her on our side we need not fear the whole world.
With her, then, we should most seduously cherish a cordial friendship,
and nothing would tend more to knit our affections than to be fighting
once more side by side in the same cause. Not that I would purchase
even her amity at the price of taking part in her wars.

" But the war in which the present proposition might engage us,
should that be its consequence, is not her war, but ours. Its object is
to introduce and establish the American system of keeping out of our
land all foreign powers — of never permitting those of Europe to inter-
meddle with the aff'airs of our nations. It is to maintain our own pvin-
ciple, not to dei)art from it ; and if, to facilitate this, we can effect a
division in the body of the European powers and draw over to our side
its most powerful member, surely we should do it. But I am clearly of
Mr. Canning's opinion that it will present instead of i)rov()king war.
With Great Britain withdrawn from their scale and shifted into that of
our two continents, all Europe combined would not undertake such a
war, for how would they propose to get at either enemy without superior
fleets? Nor is the occasion to be slighted which this proi)Osition offers
of declaring our protest against the atrocious violations of the rights of
nations by the interference of any one in the internal affairs of another
so flagitiously begun by Bonaparte, and now continued by the equally
lawless Alliance calling itself Holy.

" But we have first to ask ourselves a question. Do we wish to ac-
quire to our own confederacy any one or more of the Spanish ])rovinces ?
I candidly confess that I have ever looked on Cuba as the most inter-
esting addition which could ever be made to our system of States. The
control which, with Elorida Point, this island would give us over the
Gulf of Mexico and the countries and isthmus bordering on it, as well
as all those whose waters flow into it, would till up the measure of our
political well-being. Yet, as I am sensible that this can never be ob-
tained, even with her own consent, but by war, and its indepen<lence,
which is our second interest (and especndly its independence of Eng-
land), can be secured witliout it, I have no hesitation in abandon>iig'my
first wish to future chances, and accepting its independence, with i)eace
and the friendship of England, rather than its association at the expense
of war and her enmity.

" I could honestly, therefore, join in the declaration j)roposed that we
aim not at th*e acquisition of any of those ])ossessions — that we Avill not
stand in the- way of any amicable arrangenjent between them and the
mother country — but that we will oppose with all our means the forcible

269

§ 57.] INTERVENTION. [CHAP. III.

iDterposition of auy other power as auxiliary, stipendiary, or under any
other form or pretext, and most especially their transfer to any power
by conquest, cession, or acquisition in any other way. I should think
it, therefore, advisable that the Executive should encourajje the British
Government to a continuance in the dispositions expressed in these let-
ters by an assurance of his concurrence with them as far as his authority
goes, aiul that as it may lead to war, the declaration of which requires
an act of Conoress, the case shall be laid before them for consideration
at their first meeting, and under the reasonable aspect in which it is
seen by himself.

" 1 have been so long weiined from i>olitical subjects, and have so long
ceased to take any interest in them, that I am sensible I am not quali-
fied to offer opinions on them worthy of any attention ; but the ques-
tion how proi)Osed involves consequences so lasting, and effects so deci-
sive of our future destinies, as to rekindle all the interest I have hereto-
fore felt on such occasions, and to induce me to the hazard of opinions
which will prove only my wish to contribute still my mite toward any-
thing which may be useful to our countrj\ And, praying you to accept
it at only what it is worth, I add the assurance of mj' constant and affec-
tionate friendship and respect.''

7 Jeff. Works, 315.

Mr. Madison, being consulted at the same time, through Mr. Jeffer-
son, answered as follows:

TO PRESIDENT MOXROE.

October 30, 1823.

"Dear Sir: I have just received from Mr, Jefferson your letter to
him, with the correspondence between Mr. Canning and Mr. Kush, sent
for his and my perusal and our opinions on the subject of it.

" From the disclosures of Mr. Canning, it appears, as was otherwise to
be inferred, that the success of France against Spain would be followed
by an attempt of the holy allies to reduce the revolutionized colonies
of the latter to their former dependence.

"The professions we have made to these neighbors, our sympathies
with their liberties and independence, the deep "interest we have in the
most friendly relations with them, and the consequences threatened by
a command of their resources by the great powers, confederated against
the rights and reforms of which we have given so conspicuous and per-
suasive an example, all unite in calling for our efforts to defeat the
meditated crusade. It is parti(;ularly fortunate that the policy of Great
Britain, though guided by calculations different from ours", has pre-
sented a co-ojjeration for an object the same with ours. With that co-
operation we have nothing to fear from the rest of Europe, and with it
the best assurance of success to our laudable views. There ought not,
therefore, to be any backwardness, I think, in meeting her in the way
she has i)rop()sed, keeping in view, of course, the spirit and forms of the
Constitution in every step taken in the road to war, which must be the
last step if those short of war should be without avail.

" It cannot be doubted that :Mr. Canning's proposal, though made with
the air of consultation, as well as concert, wasfounded oh a i)redeter-
mination to take the course marked out, whatever might be the recep-
tion given here to his invitation. But this consideration ought not to
270

CHAP. III.] MONROE DOCTRINE. [§ 57.

divert us Irom what is just and proper in itself. Our co-operation is
due to ourselves and to the woild, and while it must insure success in
the event of an appeal to force, it doubles the chance of success with-
out that appeal. It is not improbable that Great IJritain would like
best to have the merit of being the sole champion of her new friends,
notwithstanding the greater difliculty to be encountered, but for the
dilemma in which she would be placed. She must, in that case, either
leave us, as neutrals, to extend our commerce and navigation at the
expense of hers, or make us enemies by renewing her paper blockades
and other arbitrary proceedings on the ocean. It may be hoped that
such a dilemma will not be without a permanent tendency to check her
proneness to unnecessary wars.

" Why the British Cabinet should have scrupled to arrest the calamity
it now apprehends by applying to the threats of France against Spain
the small eftbrt which it scruples not to employ in behalf of Spanish
America, is best known to itself. It is difficult to find any other ex-
planation than that interest in the one case has more weight in its
casuistry than principle had in the other.

"Will it not be honorable to our country, and possibly not altogether
in vain, to invite the British Government to extend the 'avowed dis-
approbation' of the project against the Spanish colonies to the enter-
prise of France against Spain herself, and even to join in some declara-
tory act in behalf of the Greeks'? On the supposition that no form
could be given to the act clearing it of a pledge to follow it up by war,
we ought to compare the good to be done with the little injury to be
apprehended to the United States, shielded as their interests would be
by the power and the fleets of Great Britain united with their own.
These are questions, however, which may require more information than
I jiossess, and more reflection than I can now give them.

" What is the extent of Mr. Canning's disclaimer as to the 'remaining
possessions of Spain in America. Does it exclude future views of ac-
quiring Porto Eico, &c., as well as Cuba? It leaves Great Britain free,
as I understand it, in relation to other quarters of the globe."

TO MR. JEFFERSON.

MoNTPELiEK, N'ovemher 1, 1823.
"Dear Sir: I return the letter of the President. The correspond-
ence from abroad has gone back to him, as you desired. I have ex-
pressed to him my concurrence in the policy of Tueeting the advances
of the British Government, having an eye to the forms of our Constitu-
tion in every step in the road to war. With the British power and navy
combined with our own, we have nothing to fear from the rest of the
world, and in the great struggle of the epoch between liberty and des-
potism, we owe it to ourselves to sustiiin the former, in this hemisphere
at least. I have even suggested an invitation to the British Govern-
ment to join in applying the "small eflbrt for so much good" to the
French invasion of Spain, and to make Greece an object of some such
ftivorable attention. Why Mr. Canning and his colleague did not sooner
interpose against the calamity, which could not have escaped foresight,
cannot be otherwise explained but by the different aspect of the ques-
tion when it related to liberty in Spain, and to the extension of British
commerce to her former colonies."
3 Madison's Writings, 339.

271

§ 57.] INTERVENTION. [CHAP. III.

The following is from a "private" letter from Mr. Cauuing, on De-
cember 21, 1823, to Sir William h Court, British minister at Spain
(Sta])1eton's Canning and his Times, 395): "Monarchy in Mexico and
monarchy in Brazil would cure the evils of universal democracy and
prevent the drawing of demarkation M'hich I most dread — America
vs. Euro])e. The United States, naturally enough, aim at this divis-
ion, and cln^rish the democracy which leads to it. But I do not much
apprehend their influence, even if I believe (which I do not altogether)
in all the re])orts of their activity in America. Mexico and they are
too neighborjy to be friends. In the meanwhile they have aided us
n)aterially. * * * While I was yet hesitating (in September) what
siiape to give to the declaration and protest which ultimately was con-
veyed in my conference with P. de Polignac, and while I was more
doubtful as to the effect of that protest and declaration, I sounded Mr.
Hush (the American minister here) as to his powers and disposition to
join in any stej) which we might take to prevent a hostile enterprise on
the part of the European powers against Spanish America. He had no
powers; but he would have taken upon himself to join with us, if we
would have begun by recognizing the Spanish-American States. This
we could not do, and so we went on without. But 1 have no doubt that
his report to his Government of this sounding, which he probably rep-
resented as an overture, had a great share in producing the explicit
declaration of the President."

As Mr. Stapleton remarks, Mr. Canning's position was simply that
Great Britain would not permit other European powers to interfere on
behalf of Spain in her contest with her American colonies. So far from
assenting to the position that the "unoccupied parts of America are
no longer open to colonization from Europe," he held that "the United
States had no right to take umbrage at the establishment of new colonies
from Europe on any such unoccupied parts of the American continent."

The Holy Alliance, at the period when Mr. Canning's conference with
Mr. Rush took ])lace, acted vigorously. They united in sustaining the
Bourbons in ^S^aples, where they re-established the Bourbon dynasty on
the basis of absolutism, against the faint protest of France and the
sullen disapproval of England. Meeting again at Verona in 1822, they
guaranteed the intervention of France in. Spain, although the British
ministry gave still more ominous signs of disapproval, which finally ex-
hibited themselves in utterances of the British cabinet to the effect
that they would not look with indifference at any intervention of the
Alliance in the affairs of South America. It is by the possibility of the
Alliance undertaking such intervention that the correspondence here
given is to be explained. The Government of the United States was
deteiinined to resist such intervention, and in such resistance, if wisely
conducted, it had every reason to expect the assistance of Great Brit-
ain. The terms, however, i)i which this position was epci)ressed by Mr.
Monroe differed only in form from those in which the relations of the
United States to European Gov^^rnments had been defined i)reviouslv
by 3Ir. Jefferson. Mr. Jefferson to Mr. Short, Nov. 24, 1701, 3 Jeff.
Works, 302; to Mr. Paine, March 18, lSOl-% id., 310 : to Mr. Short,
Oct. 3, 1801-'4, id., 413; see supra, §45.

The Emperor of Russia having suggested, eailv in 1820, that the
United States should join the Holy Alliance, the 'following response
was made : "The political system of the United States is essentially

273

CHAP. III.] MONEOE DOCTRINE. [§ 57.

extra-Earopean. To stand in fiini and cautious independence of all
entanglement in tbe Enropean system, has been a cardinal point of
their policy under every administration of their Government from the
peace of 1783 to this day." For this, if for no other reasons, the request
of Russia, that the United States should become a party to the Holy
Alliance, should be declined.

Mr. J. Q. Adams, Sec. of State, to Mr. Middletou, July 5, 1620; MSS. Inst.,
Russia.

In Mr. Monroe's seventh annual message, delivered on December 2,
1823, the doctrine, afterwards called by his name, was thus expressed :

" At the proposal of the Russian Imperial Government, made through
the minister of the Emi)eror residing here, a full power and instructions
have been transmitted to the minister of the United States at St. Peters-
burg to arrange, by amicable negotiation, the respective rights and in-
terests of the two nations ou tlie northwest coast of this continent. A
similar proposal had been made by his Imperial Majesty to the Govern-
ment of Great Britain, which has likewise been acceded to. The Gov-
ernment of the United States has been desirous, by this friendly pro-
ceeding, of manifesting the great value which they have invariably at-
tached to the friendship of the Emperor, and their solicitude to cultivate
the best understanding with his Government. lu the discussions to
which this interest has given rise and in the arrangements by which
they may terminate, the occasion has been judged proper for asserting,
as a principle in which the rights and interests of the United States are
involved, that the American continents, by the free and independent
condition which they have assumed and maintain, are henceforth not
to be considered as subjects for future colonization by any European
powers.

*' It was stated at the commencement of the last session that a great
effort was then making in Spain and Portugal to improve the condition
of the peoi)le of those countries, and that it appears to be conducted
with extraordinary moderation. It need scarcely be remarked that the
result has been so far very different from what was then anticipated.
Of events in that quarter of the globe, with which we have so much in-
tercourse, and from which we derive our origin, we have always'beeu
anxious and interested spectators. The citizens of the United States
cherish sentiments the most friendly in favor of the liberty and happiness
of their fellow-;nen on that side of the Atlantic. In the wars of the Eu-
ropean powers, in matters relating to themselves, we have never taken
any part, nor does it comport with our policy to do so. It is only when
our rights are invaded or seriously menaced that we resent injuries or
make preparation for our defense. With the movements in this hemi-
sphere we are of necessity more immediately connected, and by causes
which must be obvious to all enlightened and impartial observers.

"The political system of the allied powers is essentially different in
this respect from that of America. This difference proceeds from that

S. Mis. 102— VOL, I 18 273

§ 57.] INTERVENTION. [CHAP. III.

■which exists in their respective Governments. And to the defense of
our own, which has been achieved bj the loss of so much blood and
treasure, and matured bj^ the wisdom of their most enlightened citi-
zens, and under which we have enjoyed unexampled felicity, this whole
nation is devoted. We owe it, therefore, to candor and to the amicable
relations existing- between ' the United States and those powers to de-
clare that we should consider any attempt on their part to extend their
system to any iwrtion of this hemisphere as dangerous to our i^eace and
safety. With the existing colonies or dependencies of any European
power we have not interfered, and shall not interfere.' But with the
Governments who have declared their independence and maintained it,
and whose independence we have, on great consideration and on just
principles, acknowledged, we could not view any interposition for the
purpose of oppressing them, or controlling in any other manner their
destiny, by any European power, in any other light than as the mani-
festation of an unfriendly disposition toward the United States. In the
war between those new Governments and Spain we declared our neu-
trality at the time of their recognition, and to this we have adhered, and
shall continue to adhere, provided no change shall occur which, in the
indgment of the competent authorities of this Government, shall make
a corresponding change on the part of tlie United States indispensable
to their security.

" The late events in Spain and Portugal show that Europe is still un-
seitled. Of this important fact no stronger i:>roof can be adduced than
that the allied powers should have thought it proper, on a principle
satisfactory to themselves, to have interposed hy force in the internal
concerns of Spain. To what extent such interposition may be carried
on the same principle is a question to which all independent powers
whose Governments differ from theirs are interested, even those most
remote, and surely none more so than the United States. Our policy
in regard to Europe, which was adopted at an early stage of the wars
which have so long agitated that quarter of the globe, nevertheless re-
mains the same, which is not to interfere in the internal concerns of any
of its powers ; to consider the Government de facto as the legitimate
Government for us ; to cultivate friendly relations with it, and to pre-
serve those relations by a frank, firm, and manly policy; meeting, in all
instances, the just claims of every power, submitting. to injuries from
none. But in regard to these continents, circumstances are eminently
and conspicuously different. It is impossible that the allied powers
should extend their i)olitical system to any portion of either continent
without endangering our peace and happiness ; nor can anyone believe
that our southern brethren, if left to themselves, would adopt it of their
own accord. It is equally impossible, therefore, that we should behold
such interposition, in any form, with iuditierence. If we look to the
comparative strength and resources of Spain and those new Govern-
ments, and their distance from each other, it must be obvious that she
274

CHAP. III.] MONROE DOCTRINE. [§ 57.

can never subdue them. It is still the true policy of the United States
to leave the parties to themselves, in the hojie that other powers will
pursue the same course."

" I did not leave Mr. de Chateaubriand (French minister for foreign af-
fairs) without adverting to the affairs of Spain. That our sympathies
were entirely on her side, and that we considered the war made on her
by France unjust, 1 did not pretend to conceal; but 1 added that the
United States would undoubtedly preserve their neutrality, provided it
was respected, and avoid every interference with the politics of Europe.
* * * But I had reason to believe that, on the other hand, they would
not suffer others to interfere against the emancipation of America."

Mr. Gallatin, minister to France, to Mr. J. Q. Adams, Sec. of State, June 24, 1823 ;
2 Gallatin's Writings, 271.

" At the office Baron Tuyl came. I told him specially that we should
contest the right of Russia to any territorial establishment on this con-
tinent, and that we should assume distinctly the i)rincij)le that the
American continents are no longer subjects for any new colonial estab-
lishments."

Mr. J. Q. Adams's Memoirs, July 17, 1S2.3; 6 J. Q. Adams's Memoirs, 163.
As to Mr. Adams's part in formulating the "Monroe doctrine," see 82 N. Am. Rev.,
494; Tucker's Monroe Doct., 12-14, 21, 40, 111.

"January 6. In a dispatch to the Secretary of State of this date, I
mention ]\lr. Canning's desire that the negotiation at St. Petersburg, on
the Eussiau ukase of September, 1821, respecting the Northwest coast,
to which the United States and England had equally objected, should
proceed separately, and not conjointly, by the three nations, as pro-
posed by the [Jnited States, and my acquiescence in this course. It be-
ing a departure from the course my Government had contemplated, I
give the following reasons for it :

" 1. That whatever force of argument I might be able to give to the
principle of non-colonization as laid down in the President's message,
which had arrived in England since my instructions for the negotiation,
my opinion was that it would still remain a subject of contest between
the United States and England; and that as, by all I could learn since
the message arrived, Russia also dissented from the principle, a nego-
tiation at St. Petersburg relative to the Xorthwest coast, to which the
three nations were parties, might i)lace Russia on the side of England
and against the United States, this, I thought, had better be avoided.

"2. That a preliminary and detached discussion of so great a princi-
ple, against which England protested in limine, brought on by me when
her foreign secretary was content to waive the discussion at present
and preferred doing so, might have an unprojntions influence on other
parts of the negotiation of more immediate and practical interest.

"3. That by abstaining from discussing it at present nothing was
given up. The principle, as promulgated in the President's message,
would remain undiminished as notice to other nations and a guide to
me in the general negotiation with England when that came on."

Rusb,.Residence at the Court of Loudon : as quoted in 8i N. Am. Rev. (April,

18.56), 508.

"This message of President Monroe reached England while the corre-
spondence between Mr. Canning and the Prince Polignac was in prog-

275

^ 57.] INTERVENTION. [CHAP. III.

ress ; and it was received uot only with satisfactiou but with enthusi-
asm. Mr. Brougham said: 'The question with regard to South America
is uow, I believe, disposed of, or nearly so; for an event has recently hap-
pened than which none has ever dispersed greater joy, exultation, and
gratitude over all the free men of Europe ; that event, which is decisive
on the subject, is the language held with respect to Spanish America
in the message of the President of the United States.' Sir James Mack-
intosh said : ' This coincidence of the two great English commonwealths
(for so 1 delight to call them ; and I heartily pray that they may be
forever united in the cause of justice and liberty) cannot be contem-
plated without the utmost pleasure by every enlightened citizen of the
earth.' This attitude of the American Government gave a decisive sup-
port to that of Great Britain, and effectually put an end to the designs
of the absolutist powers of the continent to interfere with the aflairs of
Spanish America. Those dynasties had no disposition to hazard a war
with such a power, moral and material, as Great Britain and the United
States would have presented, when united, in the defense of independ-
ent constitutional governments.

"It is to be borne in mind that the declarations known as the Mon-
roe doctrine have never received the sanction of an act or resolution of
Congress, nor have they any of that authority which European Gov-
ernments attach to a royal ordinance. They are, in fact, only the dec-
larations of an existing Administration of what its own policy would be,
and what it thinks should ever be the policy of the country, on a sub-
ject of paramount and permanent interest. Thus, at the same session
in which the message was delivered, Mr. Clay introduced the following
resolution : 'That the people of these States would not see, without seri-
ous inquietude, any forcible interposition by the allied powers of Europe,
in behalf of Spain, to reduce to their former subjection those parts of
the continent of America which have proclaimed and established for
themselves, respectively, independent governments, and which have
been solemnly recognized by the United States.' But this resolution
was never brought up for action or discussion. It is seen, also, by the
debates on the Panama mission and the Yucatan intervention, that
Congress has never been willing to commit the nation to any compact
or pledge on this subject, or to any specific declaration of purpose or
methods, beyond the general language of the message.

" In the debates on the Clayton-Bulwer treaty, in 1855-'o6, above re-
ferred to, all the speakers seemed to agree to this position of the sub-
ject. Mr. Clayton said : ' In relerence to this particular territory, I
would not hesitate at all, as one Senator, to assert the Monroe doctrine
and maintain it by my vote; but I do not expect to be sustained in such
a vote by both branches of Congress. Whenever the attempt has been
made to assert the Monroe doctrine in either branch of Congress, it has
failed. The present Democratic party came into jiower, after the debate
on the Panama mission, on the utter abnegation of the whole doctrine,
and stood upon Washington's doctrine of non-intervention. You can-
not prevail on a majority, and I will venture to say that you cannot
prevail on one-third of either house of Congress to sustain it.' Mr. Cass
said : ' Whenever the Monroe doctrine has been urged, either one or the
other house of Congress, or both houses, did not stand up to it.' Mr.
Seward said: 'It is true that each house of Congress has declined to
a«sert it ; but the honorable Senators must do each house the justice to
acknowledge that the reason why they did decline to assert the doc-
trine was, lliat it was proposed, as many members thought, as an ab-

276

CHAP. III.] M0]ST10E DOCTRINE. [$ 57.

stractioii,,niiuecessary, not called for at the time.' Mr. Mason spoke of
it as having ' never been sanctioned or recognized by any constitutional
autboi ity.' Mr. Cass afterwards, in a very elaborate speech (of January
28, 1850), gave his views of the history and character of the doctrine.
He placed it ni)on very high ground, as a declaration not only against
European intervention or iuture colonization, but against the acquisi-
tion of dominion on the continent by European powers, by whatever
mode or however derived; and seemed to consider it as a pledge to
resist such a result by force, if necessary, in any part of the continent.
He says : ' We ought years ago, by Congressional interposition, to have
made this system of policy an American system, by a solemn declara-
tion ; and if we had done so, we should have spared ourselves much
trouble and no little mortification.' Referring to Mr. Polk's message,
in 1845, he said there was then an opportunity for Congress to adopt the
doctrine, not as an abstraction, but on a practical point. ' We refused
to say a word ; and, I repeat, we refused then even to take the subject
into consideration.' He denied the correctness of Mr. Calhoun's expla-
nation {vide st(pra), and contended that the non-colonization clause was
intended to be, and understood by England to be, a foreclosure of the
whole continent against all future European dominion, however derived.
It may well be said, however, and such seems now to be the prevalent
opinion, that the complaints of Mr. Cass and others of his school, of the
neglect and abandonment of the Monroe doctrine, apply rather to their
construction of the doctrine than to the doctrine itself. * * *

" It has sometimes been assumed that the Monroe doctrine contained
some declaration against any other than democratic-rej^ublican institu-
tions on this continent, however arising or introduced. The message
will be searched in vain for anything of the kind. We were the first
to recognize the imperial authority of Dom Pedro, in Brazil, and of
Iturbide in Mexico ; and more than half the northern continent was
under the scepters of Great Britain and Russia ; and these dependencies
would certainly be free to adopt what institutions they pleased, in case
of successful rebellion, or of peaceful separation from their parent
states. (See Mr. Seward's correspondence respecting Mexico, from
1862 to 1800, as illustrative of the position of the United States at the
present time on this subject, given at length in note 41 to §7G, infra.)

"As a summary of this subject, it would seem that the following
positions may be safely taken :

"I. The declarations upon which Mr. Monroe consulted Mr. Jefferson
and his Cabinet related to the interposition of European powers in the
affairs of American States.

" II. The kind of interposition declared against was that which may
be made for the pur[)0se of controlling their })olitical affairs, or of ex-
tending to this hemisphere the system in operation upon the continent
of Europe, by which the great powers exercise a control over the affairs
of other European states.

"III. The declarations do not intimate any course of conduct to be
pursued in case of such interpositions, but merely say that they would
be 'considered as dangerous to our peace and safety,' and as 'the man-
ifestation of an unfriendly disposition towards the United States,'
which it would be impossible for us to 'behold with indifference;' thus
leaving the nation to act at all times as its opinion of its policy or duty
might require.

"IV. The declarations are only the opinion of the administration of
1823, and have acquired no legal force or sanction.

277

§ 57.] INTERVENTION. [CHAP. III.

" V. The United States has never made any alliance with, or pledge to,
any other American state on the subject covered by the declarations.

" VI. The declaration respecting non-colonization was on a subject dis-
tinct from European intervention with American states, and related to
the acquisition of sovereign title by any European power, by new and
original occui)atiou or colonization thereafter. Whatever were the po-
litical motives for resisting such colonization, the principle of public
law upon which it was placed was, that the continent must be consid-
ered as already within the occupation and jurisdiction of independent
civilized nations."

Dana's Wheatou ; § 67, note 36.

The position that Mr. Monroe's declaration "was intended as a caveat to the de-
signs of the allies, and as an earnest i>rotest against the extension to this
continent of 'the political system' on which they were based" is supported
at length in 82 N. Am. Rev., 483 (April, 1856). See 103 id., 471, (Oct., 1866).

The failure to obtain Congressional approval for Mr. Clay's resolution "that the
people of these States would not gee, without serious inquietude, forcible
interposition by the allied powers of Europe, ou behalf of Spain," in South
America, is noticed and explained in 82 N. Am. Rev., 488 (AprU, 1856).

" The other principle asserted in the message is that whilst we do not
desire to interfere in Europe with the political system of the allied
powers we should regard as dangerous to our peace and safety any at-
tempt on their part to extend their system to any portion of this hem-
isphere. The political systems of the two continents are essentially
different. Each has an exclusive right to judge for itself what is best
suited to its own condition, and most likely to promote its happiness,
but neither has a right to enforce upon the other the establishment of
its peculiar system. This priuciple was declared in the face of the
world, at a moment when there was reason to apprehend that the allied
powers were entertaining designs inimical to the freedom, if not the inde-
pendence, of the new governments. There is a ground for believing
that the declaration of it had considerable effect in preventing the ma-
turity, if not in producing the abandonment of all such designs. Both
principles were laid down after much and anxious deliberation on the
part of the late administration. The President, who then formed a
part of it, continues entirely to coincide in both. And you will urge
upon the Government of Mexico the utility and expediency of asserting
the same princii)les on all proper occasions."

Mr. Clay, Sec. of State, to Mr. Poinsett, Mar. 26, 18<io; MSS. Inst. Ministers.

The same position was taken by ill-. Clay in letters to the Ministers to other
South American states.

" The late President of the United States, in his message to Congress
of the 2d of December, 1823, while announcing the negotiation then
pending with Kussia, relating to the northwest coast of this continent,
observes that the occasion of the discussions to which that incident had
given rise, had been taken for asserting, as a priuciple in which the
rights and interests of the United States were involved, that the Amer-
ican continents, by the free and independent condition which they had
278

CHAP. III.] MONROE DOCTRINE. [§ 57.

assumed and maintained, were thenceforward not to be considered
subjects for colonization by any European power. The iirinciple had
first been assumed in that negotiation witli Russia. It rested upon a
course of reasoning, equally simple and conclusive. With the exception
of the existing European colonies, which it was ifi nowise intended to
disturb, the two continents consisted of several sovereign and inde-
pendent nations, whose territories covered their whole surface. By
this, their independent condition, the United States enjoyed the right
of commercial intercourse with every part of their possessions. To at-
tempt the establishment of a colony in those possessions, would be to
usurp, to the exclusion of others, a commercial intercourse which was
the common possession of all. It could not be done without encroach-
ing uj^on existing rights of the United States. The Government of
Russia has never disputed these positions, nor manifested the slightest
dissatisfaction at their having been taken. Most of the new American
republics have declared their entire assent to them j and they now i)ro-
pose, among the subjects of consultation at Panama, to take into con-
sideration the means of making effectual the assertion of that principle,
as well as the means of resisting interference from abroad with the
domestic concerns of the American governments."

President John Q. Adams's Special Message, March. 15, 1626.

As to Congress of Panama, see House Doc. No. 443, 19th Cong., 2d sess. ; 6 Am.

State Papers (For. Eel.), 356/.
President J. Q. Adams's Message of Dec. 26, 1825, giving the proceedings of the

Executive as to the Panama mission, and the reasons therefor, together

with the action of the Senate thereon, is contained in Sen. Ex. Doc. No.

403, 19th Cong., Ist sess. ; 5 Am. State Papers (For. Eel.;, 834.
The commissions of Messrs. Anderson and Sergeant, March 14, 1826, ministers

to Panama, are given in Senate Doc. No. 450, 19th Cong., 2d sess.
The report of Mr. Clay, Sec. of State, of Jan. 31, 1827, as to the salaries and

duties of the ministers to Panama in 1826, is contained in House Doc. No.

452, 19 Cong., 2d sess. ; 6 Am. State Papers (For. Eel.), 554.

" ' The congress of Panama, in 182G, was planned by Bolivar to se-
cure the union of Spanish America against Spain. It had originally
military as well as political purjioses. In the military objects the United
States could take no part ; and indeed the necessity for such objects
ceased when the full effects of Sir. Monroe's declarations were felt. But
the specific objects of the Congress, the establishment of close and cor-
dial relations of amity, the creation of commercial intercourse, of inter-
change of political thought, and of habits of good understanding between
the new Republics and the United States and their respective citizens,
might perhaps have been attained had the Administration of thatday
received the united support of the country. Unhappily they were lost;
the new States were removed from the sympathetic and protecting in-
fluence of our example, and their commerce, which we might then have
secured, passed into othei* hands unfriendly to the United States.

" 'In looking back upon the Panama Congress from this length of
time it is easy to understand why the earnest and patriotic men who
endeavored to crystallize an American system for this continent failed.
* * * One of the questions j)roposed for discussion in the conference

279

S^ 57.] INTERVENTION. [CHAP. III.

was " The consideration of the means to be adopted for tlie entire abo-
lition of the African slave trade," to which proposition the committee of
the United States Senate of that day replied : " The United States have
not certainly- the right, and ought never to feel the inclination, to dic-
tate to others who may differ with them upon this subject; nor do the
connnittee see the expediency of insulting other states with whom we
are maintaiuing relations of perfect amity, by ascending the moral
chair, and proclaiming from thence mere abstract principles, of the rec-
titude of which each nation enjoys the ])erfect right of deciding for
itself" The same committee also alluded to the possibility that the con-
dition of the islands of Cuba and Porto ilico, still the possessions of
Spain, and still slaveholding, miglit be made the subject of discussion
and of contemplated action by the Panama congress. " If ever the
United States (they said) permit themselves to be associated with these
nations in any general Congress assembled for the discussion of com-
mon plans in any way affecting European interests, they will, by such
act, not only deprive theaiselves of the ability they now possess of ren-
dering useful assistance to the other American states, but also pro-
duce other effects prejudicial to their interests." '

" The printed correspondence respecting this mission will be found in
the fifth volume of the Foreign Eelations, folio edition, pages 834-905.
It was the subject of animated discussion in Congress, which will be
found in the second part of the second volume of the Eegister of Con-
gressional Debates for the year 1826."

Mr. J. C. B. Davis, Notes, &c.

" The amount of it [Mr. Monroe's declaration] was that this Govern-
ment could not look with indifference on any combination to assist Spain
in her war against the South American states ; that we could not but
consider any such combination as dangerous or unfriendly to us ; and
that if it should be formed it would be for the competent authoiities
of this Government to decide, when the case arose, what course our
duty and our interest should require us to pursue."

Mr. Webster, Mar. ?7, 1826, in House of Rep. ; 2 Deb. of 1«26, 1807.

" In December, 1823, the then President of the United States, in his
annual message upon the oi)ening of Congress, announced as a princi-
ple applicable to this continent, which ought hereafter to be insisted on,
that no European nation ought to be allowed to plant upon it new col-
onies. It was not proposed by that principle to disturb pre-existing
European colonies already established iji America ; the principle looked
forward, not backward."

Mr. Clay, Sec. of State, to Messrs. Anderson and Sergeant, May 8, 1826; MSS.
Inst. Ministers.

" It [the Monroe doctrine] has been said, in the course of this debate,
to have been a loose and vague declaration. It was, I believe, suffi-
ciently studied. I have understood, from good authoritv, that it was
considered, weighed, and distinctly and decidedlv approved bv every
one of the President's advisers at that time. Our Governmeul: could
not adopt on that occasion precisely the course which England had
taken. England threatened the immc^diate recognition of the ])roviuces
if the allies should take part with Spain against them. We had already
recognized them. It remained, therefore, only for our Government to
280 .

CHAP. III.] MONROE DOCTRINE. [§ 57.

say bow we sliouUl consider a coinl)inatioii of the allied powers to effect
objects in America as affectiiij^ ourselves ; and tbe niessagje was in-
tended to say wbat it does say, that we should regard such combination
as dangerous to us. Sir, 1 agree with those who maintain the proi)Osi-
tion, and I contend against those who deny it, that the message did
mean something; that it meant much; and I maintain against both,
that the declaration eifected much good, answered the end designed
by it, did great honor to the foresight and the si)iritof the Government,
and that it cannot now be taken hack, retracted, or annulled without
disgrace. It met, sir, with the entire concurrence and the hearty ap-
probation of the country. The tone which it uttered found a corre-
sponding response in the breasts of the free people of the United States.
That people saw, and they rejoiced to see, that, on a fit occasion, our
weight had been thrown into tlie right scale, and that, without depart-
ing from our duty, we had done something useful, and something effect-
ual, for the cause of civil liberty. One general glow of exultation, one
universal feeling of the gratified love of liberty, one conscious and
proud perception of the consideration which the country possessed, and
of the respect and honor which belonged to it, pervaded all bosoms.
Possibly the ])ublic enthusiasm went too far ; it certainly did go far ;
but, sir, the sentiment which this declaration inspired was not confined
to ourselves. Its force was felt everywhere by all those who could un-
derstand its object and foresee its effect. In that very House of Com-
mons of which the gentleman from South Carolina has spoken with
such commendation, how was it received ? Not only, sir, with appro-
bation, but, I may say, with no little enthusiasm. ^Yhile the leading
minister [Mr. Canning] expressed his entire concurrence in the senti-
ments and opinionsof the American President, his distinguished competi-
tor [Mr. Brougham j in that jwpular body, less restrained by oificial deco-
rum, and more at liberty to give utterance to all the feeling of the occa-
sion declared that no event had ever created greater joy, exultation, and
gratitude among all the free men in Europe; that he felt pride in being
connected by blood and language with the people of the United States ;
that the policy disclosed by the message became a great, a free, and an
independent nation ; and that he hoped his own country would be pre-
vented by no mean i)rideor paltry jealousy from following so noble and
glorious an example.

" It is doubtless true, as I took occasion to observe the other day,
that this declaration must be considered as founded on our rights, and
to spring mainly from a regard to their preservation. It did not com-
mit us, at all events, to take up arms on any indication of hostile feel-
ing by the powers of Europe towards South America. If, for exami)le,
all the states of Europe had refused to trade with South America until
her states should return to their former allegiance, that would have
furnished no cause of interference to us. Or if an armament had been
furnished by the allies to act against provinces the most remote from
us, as Chili or Buenos Ayres, the distance of the scene of action dimin-
ishing our apprehension of danger, and diminishing also our means of
effectual interposition, might still have left us to content ourselves with
remonstrance. But a very different case would have arisen, if an army,
equipped and maintained by these powers, had been landed on the
shores of the Gulf of Mexico, and commenced the war in our immediate
neighborhood. Such an event might justly be regarded as dangerous
to ourselves, and, on that ground, call for decided and immediate inter-
ference by us. The sentiments and the policy announced by the declara

281

§ 57.] INTERVENTION. [CHAP. III.

tion, thus understood, were, therefore, in strict conformity to our duties
and our interest."

Mr. Webster's speech on tlie Pauau'a mission, April 14, 1826. ; 3 Webster's Works,
203.

When the question of the Panama Congress was before Congress,
the following resolution, on motion of Mr. Buchanan, jjassed the House
of Representatives by a vote of 99 to 95 :

" It is, therefore, the opinion of this House that the Government of
the United States ought not" to be represented at the Congress of Pan-
ama, except in a diplomatic character ; nor ought they to form any al-
liance, offensive or defensive, or negotiate respecting such alliance,
with all or any .of the South American Republics ; nor ought they to
become parties with them, oreither of them, to any joint declaration for
the purpose of preventing the interference of any of the European pow-
ers with their independence or form of government, or to any com-
l)act for the purpose of preventing- colonization upon the continents of
America; but that the people of the United States should be left free
to act, in any crisis, in such manner as their feeliugs of friendship to-
wards these Republics, and as their own honor and policy, may at the
time dictate."

See 82 North Am. Eev. (Apr., 1856), 507.

As to subsequent faihires to obtain Congressional recognition of the " Monroe

doctrine," see Tucker's Monr. Doct., 56.
The Panama Congress is discussed in 1 Calvo., Droit Int., 2d ed., 255.

" It is well known to the American x)eople and to all nations that
this Government has never interfered with the relations subsisting be-
tween other»Governments. We have never made ourselves parties to
their wars or their alliances ; we have not sought their territories by
conquest; we have not mingled with parties in their domestic struggles;
and believing their own form of government to be the best, we have
never attem])ted to propagate it by intrigues, by diplomacy, or by force.
We may claim on this continent a like exemption from European inter-
ference. The nations of America are equally sovereign and independ-
ent with those of Europe. They possess the same rights, independent
of all foreign interposition, to make war, to conclude peace, and to regu-
late their internal affairs. The people of the United States cannot,
therefore, view with indifference attempts of European powers to inter-
fere with the independent action of the nations on this continent. The
American system of government is entirely different from that of Eu-
rope. Jealousy among the different sovereigns of Europe, lest any one
of them might become too powerful for the rest, has caused them anx-
iously to desire the establishment of what they term the ' balance of
power.' It cannot be permitted to have any application on the Korth
American continent, and especially to the United States. We must
ever maintain the principle that the people of this continent alone have
the right to decide their own destiny. Sbould any portion of them, con-
stituting an independent state, propose to unite themselves with our
confederacy, this will be a question for them and* us todetermine, with-
282

CHAP. III.] MONROE DOCTRINE. [§ 57.

out any foreign interposition. We can never consent that European
powers shall interfere to prevent such a union, because it might disturb
the 'balance of power' which they may desire to maintain upon this
continent. IsTear a quarter of a century ago the principle was distinctly
announced to the world, in the annual message of one of my predeces-
sors, that 'the American continents, by the free and independent con-
dition which they have assumed and maintain, are henceforth not to be
considered as subjects for future colonization by any European power.'
This principle will apply with greatly increased force, should any Euro-
pean power attempt to establish any new colony in Korth America. In
the existing circumstances of the world, the present is deemed a proper
occasion to reiterate and reaftirm the principle avowed by Mr. Monroe,
and to state my cordial concurrence in its wisdom and sound policy.
The reassertion of this principle, especially in reference to North Amer-
ica, is, at this day, but the promulgation of a policy which no European
power should cherish the disposition to resist. Existing rights of every
European nation should be respected; but it is due alike to our safety
and our interests that the efficient protection of our laws should be ex-
tended over our whole territorial limits, and that it should be distinctly
announced to the world as our settled policy that no future European
colony or dominion shall, with our consent, be planted or established on
any part of the North American continent."

President Polk's First Auuual Message, 1845.

Mr. J. Q. Adams, narrating, in his journal of December 6, 1845 (12 J.
Q. Adams's Mem., 218), a conversation with Mr. Bancroft, then in Mr.
Polk's Cabinet, thus speaks: "I said I approved entirely of Mr. Polk's
repeated assertion of the princii)le iirst announced by President James
Monroe, in a message to Congress, that the coutinenrs of North and
South America were no longer to be considered as scenes for future
European colonization. He said he had heard that this part of the
message of Mr. Monroe had been inserted by him at my suggestion. I
told him that was true; that I had been authorized by liim to assert the
principle in a letter of instruction to Mr, liush, then minister in P]ng-
land, and had written the paragraph in the very words inserted by Mr.
Monroe in his message."

Mr. Calhoun's exposition of the "Monroe doctrine," as contained
in the annual message of President Monroe in 1823, when Mr. Cal-
houn was Secretary of War, is given in a speech delivered by him
in the Senate on May 15, 1848, on a bill to enable the ['resident to take
temporary military occui)ation of Yucatan, Mr. Calhoun, speaking of
the position taken by Mr. Monroe "that the United States would regard
any attempt on the part of the allied ])owers to extend their vsystem to
this country as dangerous to our jieace and safety," thus states the
circumstances under which Mr. Monroe made this declaration: "The
allied i)0wers were the four great continental monarchies — Pnssia, I'rus-
sia, Austria, and France. Shortly after the overthrow of Pona}»arte
•these powers enteied into an alliance called the ' Holy Alliance,' the
object of which was to sustain and extend monarchical prineii)les as far
as possible, and to opi)ress and put down poj)ular institutions. Eng-

283

§ 57.] INTERVENTION. [CHAP. III.

land, ill tlie early stages of the alliance, favored it.' The members of
the alliance held several congresses, attended either by themselves or
their ambassadors, and undertook to regulate the affairs of all Europe,
and actually interfered in the affairs of Spaiufor the purpose of putting
down poiudar doctrines. In its progress, the alliance turned its eyes
to this continent in order to aid Spain in regaining lier sovereignty over
lier revolted ])rovinces. At this stage England became alarmed. Mr.
Cann ing was then prime minister. He informed Mr. Rush of the project,
and gave him, at the same time, the assurance that, if sustained by the
United States, Great Britain would resist. Mr. Rush immediately com-
municated this to our Government. It was received here with joy; for
so great was the power of the alliance that even we did not ieel our-
selves safe from its interpositions. * * * I remember the reception of
the dispatch from Mr. Rush as distinctly as if all the circumstances had
occurred yesterday. I well recollect the satisfaction with which it was
received by the Cabinet. It came late in the year, not long before the
meeting of Congress. As was usual with Mr. Monroe upon great occa-
sions, the papers were sent round to each member of the Cabinet, so that
each might be duly apprised of all the circumstances and be prepared
to give his opinion. The Cabinet met. It deliberated. There was long
and careful consultation, and the result was the declaration which I
liave Just announced. All this has passed away. That very movement
on the part of England, sustained by this declaration, gave a blow to
the celebrated alliance from which it never recovered. From that time
it gradually decayed till it utterly perished. The late revolutions in
Europe have put an end to all its work, and nothing remains of all that
it ever did." This declaration, Mr. Calhoun proceeded to state, must be
limited by the conditions under which it was spoken, as otherwise "it
would have involved the absurdity of asserting that the attempt of any
Eur()})ean state to extend its system of Government to this continent,
the smallest as well as the greatest, would endanger the peace and
safety of our country." " The next declaration," Mr. Calhoun proceeded
to say, " was that we would regard the interposition of any European
I)Ower to oppress the Governments of this continent, which we had re-
cently recognized as independent, or to control their destiny in any
manner whatever, as manifesting an unfriendly disposition toward the
United States. This declaration, also, belongs to the history of that
day. It grew out of the same state of circumstances, and may be con-
sidered as an appendage to the declaration to which I have just alluded.
By the Governments on this continent which we had recognized, were
meant the Republics which had grown up after having thrown off the
yoke of Spain. They had just emerged from their protracted revolu-
tionary struggles. They had hardly yet reached a point of solidity, and
in that tender stage the administration of Mr. Monroe thought it proper
not only to make that general declaration in reference to the Holy
Alliance, but to make a more specific one against the interference of
any Eiin)|)ean power, in order to countenance and encourage these
young Rei)ul)lics as far as we could with propriety." Mr. Calhoun
Then proceeded to say that the third proposition of Mr. Monroe, which
had been referred to, was "that the continents of America, by the free
and in(le[)endent condition which they have assumed and maintained,
are not henceforth to be considered as subjects of colonization bv anv Eu-
ropean power." * * * u The word 'colonization' has a specific mean-
ing. It means the establishment of a settlement by emigrants from the
parent country in a territory either uninhabited or from which the iu-

284 1

CHAP. III.] MONROE DOCTRINE. {.§ ^^ •

habitants have been partially or wholly expelled." * ♦ * "It may
be proper to go into a history, also, of this declaration of Mr. Monroe.
It grew out of circnnistaiices altogether different from the other two.
At that time there was a question between Great Britain and the United
States on one side and liussia on the other. All three clainied settle-
ments on the northwest portion of this continent. Great Britain and
ourselves havingcommon interest in keeping Russia as far north as possi-
ble, the former i)ower applie* I to the United States for co-operation ; and it
was in reference to that matter that the additional declaration was made.
(But see infra, § 159.) It was said to be a proper opportunity to make it.
It had reference specially to the subject of the northwest settlement, and
the other portions of the continent were drawn in, because all the rest of
it, with the exception of some settlements in Surinam, Maracaibo, and
thereabout, had passed into independent hands." Mr. Calhoun then pro-
ceeded to reply to the statement made in the Senate in debate, that all
those declarations had originated with Mr. Adams, and were unknown
to the other members of the Cabinet until they appeared in Mr. Mon-
roe's message. " I recollect," said Mr. Calhoun, "as distinctly as I do
any event of my life, that all the papers in connection with this subject
were submitted to the members before the Cabinet met, and were duly
considered. Mr. Adams, then, in speaking of the whole as one, must
have reference to the declaration relative to colonization. As respects
this, his memory does not differ from mine. My impression is that it
never became a subject of deliberation in the Cabinet. I so stated when
the Oregon question was before the Senate. I stated it in order that Mr.
Adams might- have an opportunity of denying it, or asserting the real
state of the facts. He remained silent, and I presume my statement is
correct, that this declaration was inserted after the Cabinet deliber-
ated. It originated entirely with Mr. Adams, without being submitted
to the Cabinet, and it is, in my opinion, owing to this fact that it is not
made with the precision and clearness with which the two former are.
It declares, without qualification, that these continents have asserted
and maintained their freedom and independence, and are no longer sub-
ject to colonization by any European power. This is not strictly accu-
rate. Taken as a whole, these continents had not asserted and main-
tained their freedom and independence. At that period Great Britain
had a larger portion of the continent in her possession than the United
States. Eussia had a considerable portion of it, and other powers pos-
sessed some j)ortious on the southern parts of this continent. The dec-
laration was broader than the fact, and exhibits i^recipitaucy and want
of due reflection. Besides, there was an impropriety in it when viewed
in conjunction with the foregoing declarations. I speak not in the lan-
guage of censure. We were, as to them, acting in concert with Eng-
land, on a proposition coming from herself — a proposition of the utmost
magnitude and which we felt at the time to be essentially connected
with our peace and safety ; and of course it was due to i)ropriety as
well as policy that this declaration should be strictly in accordance with
British feeling. Our power then was not what it is now, and we had
to relj^ upon her co-operation to sustain the ground we had taken. We
had then only aliout six or seven millions of people, scattered, and
without such means of communication as we now possess to bring us
together in a short period of time. The declaration, accordingly, with
respect to colonization, striking at England as well as Eussia, gave
offense to her, and that to such an extent that she refused to co-operate
with us in settling the Eussian question. Now, I will venture to say

285

§ 57.] INTERVENTION. [CHAP. III.

that if that declaration had come before that cautious Cabinet, for Mr.
INIonroe was among the wisest and most cautious men I have ever known,
it would have been modified and expressed with a far greater degree
of ])recision, and with nuich more delicacy in reference to the feelings
of the British Government.

" In stating the precise character of these declarations, and the man-
ner in which they originated, I have discharged a doiible duty, a duty
to my country, to whom it is important that these declarations should
be correctly understood, a duty to the Cabinet of which 1 was a member
and am now the only survivor. I remove a false interpretation, which
makes safe and proper declarations improper and dangerous.

"But it is not only in these respects that these famous declarations
are misunderstood by the Chief Magistrate of the country as well as by
others. They were but declarations — nothing more; declarations an-
nouncing in a friendly manner to the powers of the world that we should
regard certain acts of interposition of the allied powers as dangerous to
our peace and safety; interposition of European powers to oppress the
Eepublics which had just arisen upon this continent, as manifesting an
unfriendly disposition, and that this continent, having become free and
independent, was no longer the subject of colonization by European
powers. Kot one word in any one of them in reference to resistance.
There is nothing said of it, and with great propriety was it omitted.
Kesistance belonged to us — to Congress. It is for us to say whether we
shall resist or not, and to what extent. * * *

" Whether you will resist or not, and the measure of your resistance —
whether it shall be by negotiation, remonstrance, or some intermediate
measure, or by a resort to arms — all this must be determined and de-
cided on the merits of the question itself. This is the only wise course.
We are not to have quoted on us, on every occasion, general declara-
tions to which any and every meaning may be attached. There are
cases of interposition where I would re.sort to the hazard of war with
all its calamities. Am I asked for one ? I will answer. I designate
the case of Cuba. So long as Cuba remains in the hands of Spain,
a friendly power, a power of which we have no dread, it should con-
tinue to-be, as it has been, the policy of all administrations ever since I
have been connected with the (Tovernment, to let Cuba remaiii there;
but with the fixed determination, which I hope never will be relin-
quished, that if Cuba pass from her it shall not be into any other hands
but ours. This, not from a feeling of ambition, not from a desire for
the extension of dominion, but because that island is indispensable to
the safety of the United States, or rather because it is indispensable to
the safety of the United States that this island should not be in certain
hands. If it were, our coasting trade between the Gulf and the Atlan-
tif; would, in case of war, be cut in twain, to be followed by convulsive
efiects. In the same category I will refer to a case in which we might
most rightfully have resisted, Imd ii been necessary, a foreign pewer;
and that is the case of Texas."

4 Calkoun's Wiarks, i^ff.

" President Polk having,. in 1848, based on what was supposed to be
the IMonroe doctrine, a recommendation to take possession of Yu(;atan,
in order to prevent its becoming a colony of any European power, Mr.
Calhoun, who was a member of the Monroe Cabinet, explained the cir-
cumstances connected with that declaration. It was made in concert
with Great Britain, in order to prevent the intervention of the ' Holy
286

CHAP. III.] MONROE DOCTEINE. [§ 57.

Alliauce/ in aiding Spain to regain her sovereignty over ber revolted
provinces. Mr. Canning bad informed Mr. Rush (miniMter of the United
States at London) of the project, assuring hira, at the same time, that,
if sustained by the United States, Great Britain would resist. (Speech
iu U. S. Senate, May 15, 1848; Calhoun's Works, vol. iv, p. 454.) This
is in accordance with the statement of Sir James Mackintosh, in his
speech of June, 1824. (Works, j), 555.) The message itself would seem,
however, to have a more extended a])plication. It was with reference
to the discussions then pending with Kussia, as to the northwest coast
of America, that it is said: 'The occasion has been judged proi)er for
asserting, as a principle in which the rights and interests of the United
States are involved, that the American continents, by the free and in-
dependent condition which they have assumed and maintain, are hence-
forth not to be considered as subjects for future colonization by ajiy
European power. (Annual Register, 1823, p. 185.)"

Lawrence's Wheaton, ed. 1863, p. 124.

" While it is not ray purpose to recommend the adoption of any meas-
ure v/ith a view to the acquisition of the 'dominion and sovereignty'
over Yucatan, yet, according to our established policy, we could not
consent to a transfer of this ' dominion and sovereignty ' to either Spain,
Great Britain, or any other European power. In the language of Pres-
ident Monroe, iu his message of December, 1823, ' we should consider
any attempt on their part to extend their system to any portion of this
hemisphere as dangerous to our peace and safety.' In my annual mes-
sage of December, 1845, I d(^clared that near a quarter of a century
ago the principle was distinctly announced to the world, in tha annual
message of one of my predecessors, that the American continents, by
the free and independent condition which they have assumed and main-
tain, are henceforth not to be considered as subjects for future coloniza-
tion by any European power.' This principle will apply with greatly
increased force, should any Euro[)ean power attempt to esta"blish any
new colony in North America. Jn the existing circumstances of the
world, the present is deemed a proper occasion to reiterate and reaffirm
the principle avowed by Mr. Monroe, and to state my cordial concur-
rence in its wisdom and sound policy."

President Polk's Special Message, April 29. 1848.

" The independence as well as the interests of the nations on this
continent require that they should maintain an American system of
policy entirely distinct from that which ijrevails iu Europe. To sutler
any interference on the part of the European Governments with the
domestic eoncierns of the American Republics, and to permit th^em to
establish new colonies upon this continent, would be to jeopard their
independence and ruin their interests. These truths ought everywhere
throughout this continent to be impressed upon the public mind ; but
what can the United States do to resist such European interference
whilst the Spanish- American Republics continue to weaken themselves

287

§ 57.] INTEEVENTION. [CHAP. III.

by (livisious and civil war, and deprive themselves of doing anything
for their own protection ?"

Mr. BiicbaiiaD, Sec. of State, to Mr. Hise, June 3, 1848; MSS. Inst. Am. St. ; 1
Curtis' Bucbauau, G23.

The United States " will not consent to the subjugation of any of the
independent states of this continent to European powers, nor to the
exercise of a protectorate over them, nor to any other direct political
influences to control their policy or institutions."

Mr. Cass, Sec. of State, to Mr. Dodge, Oct. 21, 1S58 ; same to same, Dec. 2, 1858;
MSS. lust., Spain.

The United States will decline to enter with European powers into a
joint mediation between contending armed parties in ^Mexico.

Mr. Trescot, Acting Sec. of State, to Mr. Elgee, Aug. S, 1860 ; MSS. lust., Mex.
Mr. Cass, Sec, of State, to Mr. McLane, Sept. 20, 1860 ; infra, f> 102.

The Claytou-Bulwer treaty is the only exception to the rule that the
Government of the United States will decline to enter into any com-
binations or alliances with European powers for the settlement of
questions connected with the United States.

Sujyra, § 40; infra, ^ 150, 287/.

See Tucker's Monroe Doctrine, 43.

As to British claim, after this treaty, to Honduras, .see infra, ^^ I.'jO, 287, ff.

The Clareudou-Dallas treaty of 1856, which was negotiated with the view of
settling the difficulty, was amended by -the Senate so as to be unsatisfactory
to the British Government, and consequently was dropped. See infra,
9 1.50.

The Government of the United States would regard with grave con-
cern and dissatisfaction movements in Cuba to introduce Spanish
authority within the territory of Dominica.

Mr.. Seward, Sec. of Stale, to Mr. Tassara, April 2, 1861 ; MSS. Notes, Spain. .

''The correspondence which took i)lace between this Government
and that of Her Majesty at an early stage of the insurrection shows
that the United States deemed the formation of a mutual engagement
by Great Britain and France that those two powers would act in con-
cert with regard to the said insurrection to be an unfriendly proceed-
ing, and that the United States, therefore, declined to receive from
either of those powers any communication which avowed the e.xisteuce
of .such an arrangement. I have, therefore, now to regret that Earl
Kussell has thought it necessary to inform this Government tbat Her
Majesty's Government have found it expedient to consult with the Gov-
ern ntent of France upon the question whether Her Majesty's Govern-
m(Mit will now recognize the restoration of peace in the United States.

"It is further a source of regret that Her Majesty's Government avow

that they will continue still to re<iuire tbat any United States cruisers

which shall hereafter belying within a British port or harbor or waters

shall be detained twenty four hours, so as to afford an opportunity for

288

CHAP, m.] MONROE DOCTKINK. [§ 57.

any iusurgeut vessel then ivctually being- within said i)ort, harbor, or
waters to gain the advantage of the same time for her departure from
the same port, harbor, or waters."

Mr. Seward, Sec. of State, to ^Mr. Bruce, June 11), 1865; MSS. Notes, Gr. Brit.

The Government of the United States will " maintain and insist with
all the decision and energy which are compatible with our existing neu-
trality that the rei>ublicau system which is accepted by any one of
those (South American) states shall not be wantonly assailed, ana that
it shall not be subverted as an end of a lawful war by European pow-
ers ; " but beyond this position the United States Government will not
go, nor will it consider itself hereby bound to take part in wars in which
a South American Republic may enter with a European sovereign when
the object of the latter is not the establishment in place of a subverted
Republic of a Monarchy under a European prince.

Mr. Seward, Sen. of State, to Mr. Kilpatrick, .Iiine 2, 1866; MSS. Inst.,Cbili.

" The avoidance of entangling alliances, the characteristic feature of
the foreign policy of Washington, sprang from this condition of things.
But the entangling alliances which then existed were engagements
made with France as a part of the general contract under which aid was
furnished to us for the achievement of our independence. France was
willing to waive the letter of the obligation as to her West India pos-
sessions, but demanded, in its stead, privileges in our ports which the
Administration was unwilling to concede. To make its i-efusal accepta-
ble to a public which sympathized with France, the Cabinet of General
Washington exaggerated the principle into a theory tending to national
isolation.

"The public measures designed to maintain unimpaired the domestic
sovereignty and the international neutrality of the United States were
iudependent of this policy, though apparently incidental to it. The
municipal laws enacted by Congress then and since have been but dec-
larations of the law of nations. They are essential to the preservation
of our national dignity and honor; they have for their object to repress
and punish all enterprises of private war, one of the last relics of me-
diaeval barbarism ; and they have descended to us from the fathers of
the Rei)ublic, supported and enforced bj' every succeeding President
of the United States.

" The foreign policy of these early days was not a narrow one. During
this period we secured the evacuation by Great Britain of the country
wrongfully occupied by her On the lake; we acquired Louisiana; we
measured forces on the sea with France, and on the laud and sea with
England ; we set the example of resisting and chastising the piracies of
the Barbary States; we initiated in negotiations with Prussia the long
line of treaties for the liberalization of Avar and the promotion of inter-
national intercourse ; and we steadily demanded, and at length obtained,

S. Mis. 162— VOL. I 19 289

^^ 57,] INTERVENTION. [CHAP. HI.

indeinnilicatioii from various Governments for the losses we had suffered
by ibreifj;!! spoliations in the wars of Europe.

" To this point in our foreign policy we liad arrived when the revolu-
tionary movements in Spanish and Portuguese America compelled a
modification of our relations with Europe, in 'consequence of the rise
of new and independent states in America.

" The revolution, which commenced in 1810 and extended through all
the Spanish- American continental colonies, after vain efforts of repres-
sion on the part of Spain, protracted through twenty years, terminated
in the establishment of the independent states of Mexico, Guatemala,
San Salvador, Honduras, Nicaragua, Costa Eica, Venezuela, Colombia,
Ecuador, Peru, Chili, Bolivia, the Argentine Kepublic, Uruguay, and
Paraguay, to which the Empire of Brazil came in time to be added.
These events necessarily enlarged the sphere of action of the United
States, and essentially modified our relations with Europe and our at-
titude to the rest of this continent.

" The new states were, like ourselves, revolted colonies. They con-
tinued the precedent we had set, of separating from Europe. Their as-
sumjition of independence was stimulated by our example. They pro-
fessedly imitated us, and copied our national Constitution, sometimes
even to their inconvenience.

"The Spanish-American colonies had not the same preparation for
independence that we had. Each of the British colonies possessed com-
plete local autonomy. Its formal transition from dependence to inde-
pendence consisted chiefly in expelling the British governor of the col-
ony and electing a governor of the State, from which to the organized
Union was but a step. All these conditions of success were wanting in
Spanish America, and hence many of the difficulties in their career as
independent states ; and further, while the revolution in British Amer-
ica was the exclusive result of the march of opinion in theBritish colo-
nies, the simultaneous action of the separate Spanish colonies, though
showing a desire for independence, was principally produced by the
accident of the invasion of Spain by France.

"The formation of these new sovereigntiesin America was important
to us, not only because of the cessation of colonial monopolies to that
extent, but because of the geograi)hical relations to us held by so many
new nations, all, like ourselves, created from European stock, and inter-
ested in excluding Euroi)ean politics, dynastic questions, and balances
of power from further influence in the New World.

" Thus the United States were forced into new lines of action, which
though ai)parently in some respects conflicting, were really in harmony
with the line marked out by Washington. The avoidanceof entangling
political alliances and the maintenance of our own independent neutral-
ity became doubly important from the fact that they became applicable
to the new Republics as well as to the mother country. The duty of non-
interference had been admitted by every President. The question came
290

CHAP. III.] MONROE DOCTRINE. [§ 57.

iij) in tbc time of the first Adams, on the occasion of the enlistment
l)iojects of Miranda. It api)eared again under Jefferson (anterior to
the revolt of the Spanish colonies) in the schemes of Aaron Burr. It
was an ever-present question intlie administrations of Madison, Monroe,
and the younger Adams, in relerence to the <iuestions of foreign enlist-
ment or equipment in the United States, and when these new Republics
entered the family of nations, many of them very feeble, and all too
much subject to internal revolution and civil war, a strict adherence to
our previous policy and a strict enforcement of our laws became essen-
tial to the preservation of friendly relations with them ; for, since that
time, it has been one of the principal cares of those intrusted with the
administration of the Government to prevent jiiratical expeditions
against these sister Republics from leaving our ports. And thus the
changed condition of the New World made no change in the traditional
and peaceful policy of the United States in this respect.

"In one respect, however, the advent of these new states in America
did compel an apparent change of foreign policy on our i)art. It de-
volved upon us the determination of the great international question, at
what time and under what circumstances to recognize a new power as
entitled to a place among the family of nations. There was but little
of precedent to guide us, excej^t our own case. Something, indeed,
could be inferred from the historical origin of the Netherlands and
Switzerland, but our own case, carefully and conscientiously consid-
ered, was -sufficient to guide us to right conclusions. We maintained
our position of international friendship and of treaty obligations toward
Spain, but we did not consider that we were bound to wait for its recog-
nition of the new Republics before admitting them into treaty relations
with us as sovereign states. We held that it was for us to judge
whether or not they had attained to the condition of actual independ-
ence, and the consequent right of recognition by us. We considered
this question of fact deliberately and coolly. We sent commissioners
to Spanish America to ascertain and report for our information concern-
ing their actual circumstances, and in the fullness of time we acknowl-
edged their independence. We exchanged diplomatic ministers, and
made treaties of amity with them, the earliest of which, negotiated by
Mr. John Quincy Adams, served as the model for the subsequent treaties
with the Spanish-American Republics. We also, simultaneously there-
with, exerted our good offices with Spain to induce her to submit to
the inevitable result, and herself to accept and acknowledge the inde-
pendence of her late colonies. We endeavored to induce Russia to join
us in these representations. In all this our action was positive in the
direction of promoting the complete political separation of America
from Europe.

"A vast field was thus opened to the statesmen of the United States
for the peaceful introduction, the spread, and the permanent establish-
ment of the American ideas of republican government, of modification

291

§ 57.] INTERVENTION. [CHAP. III.

of the laws of war, of liberalization of commerce, of religious freedom
and toleration, and of the emancipation of the New World from the
dynastic and balance-of-power controversies of Europe.

"Mr. John Quincy Adams, beyond any other statesman of the time
in this country, had the knowledge and experience, both European and
American, the comprehension of thought and purpose, and the moral
convictions which peculiarly fitted him to introduce our country into
this new field, and to lay the foundation of an American policy'. The
declaration known as the Monroe doctrine, and the objects and pur-
poses of the congress of Panama, both supposed to have been largely
inspired by Mr. Adams, have influenced public events from that day to
this as a principle of government for this continent and its adjacent
islands.

"It was at the period of the congress of Aix-la-Chapelle and of Lay-
bach, when the 'Holy Alliance' was combined to arrest all political
changes in Europe in the sense of liberty, when they were intervening
in Southern Europe for the re establishment of absolutism, and when
they were meditating interference to check the progress of free govern-
ment in America, that Mr. Monroe, in his annual message of December
1823, declared that the United States would consider any attempt to
extend the European system to any portion of this hemisphere as dan-
gerous to our peace and safety. ' With the existing colonies or depend-
encies of any European power,' he said, ' we have not interfered and
shall not interfere. But with the Governments who have declared their
independence and maintained it, and whose independence we have on
great consideration and on just principles acknowledged, we could not
view any interposition for the pi*pose of oppressing them, or control-
ling, in any other manner, their destiny, by any European power, in any
other light than as the manifestation of an unfriendly feeling towards
the United States.'

"This declaration resolved the solution of the immediate question of
the independence of the Spanish-American colonies, and is supposed to
have exercised some influence upon the course of the British cabinet in
regard to the absolutist schemes in Europe as well as in America.

" It has also exercised a permanent influence on this continent. It
was at once invoked in consequence of the supposed peril of Cuba on
the side of Europe ; it was applied to a similar danger threatening Yu-
catan ; it was embodied in the treaty of the United States and Great
Britain as to Central Anierica; it produced the successful opposition
of the United States to the attempt of Great Britain to exercise domin-
ion in Nicaragua under the cover of the Mosquito Indians ; and it
operated in like manner to prevent the establishment of a European
dynasty in Mexico.

"The United States stand solemnly committed by repeated declara-
tions and repeated acts to this doctrine, and its application to the affairs
of this continent. In his message to the two houses of Congress at the
292

CHAP. III.] MONROE DOCTRINE. [§ 57.

commencement of the present session, the President, following the
teachings of all our history, said that the existing 'dependencies are
no longer regarded as subject to transfer from one European power to
another. When the present relation of colonies ceases, they are to be-
come independent powers, exercising the right of choice and of self-
control in the determination of their future condition and relations with
other powers.'

"This policy is not a policy of aggression; but it opposes the crea-
tion of European dominion on American soil, or its transfer to other
European powers, and it looks hopefully to the time, when, by the vol-
untary departure of European Governments from this continent and
the adjacent islands, America shall be wholly American.

" It- does not contemplate forcible intervention in any legitimate con-
test ', but it protests against permitting such a contest to result in the
increase of European power or influence; and it ever impels this Gov-
ernment, as in the late contest between the South American Republics
and Spain, to interpose its good offices to secure an honorable peace.

"The congress of Panama was planned by Bolivar to secure the union
of Spanish America against Spain. It had originally military as well
as political purposes. In the military objects the United States could
take no part ; and indeed the necessity for such objects ceased when
the full effects of Mr. Monroe's declarations were felt. But the pacific
objects of the congress, the establishment of close and cordialrelations
of amity, the creation of commercial intercourse, of interchange of po-
litical thought, and of habits of good understanding, between the new
Eepublics and the United States and their respective citizens, might
perhaps have been attained had the administration of that day re-
ceived the united support of the country. Unhappily they were lost ;
the new states were removed from the sympathetic and protecting in-
fluence of our example, and their commerce, which we might then have
secured, passed into other hands, unfriendly to the United States.

" In looking back upon the Panama congress from this length of time,
it is easy to understand why the earnest and patriotic men who endeav-
ored to crystallize an American system for this continent failed.

" Mr. Clay and Mr. Adams were far-sighted statesmen, but unfortu-
nately they struck against the rock of African slavery. One of the
questions proposed for discussion in the conference was ' the considera-
tion of the means to be adopted for the entire abolition of the African
slave trade,' to which proposition the committee of the United States
Senate of that day replied, < The United States have not certainly the
right, and ought never to feel the inclination, to dictate to others who
may differ with, them upon this subject, nor do the committee see the
expediency of insulting other states, with whom we are maintaining re-
lations of perfect amity, by ascending the moral chair, and proclaiming
from thence mere abstract principles, of the rectitude of which each
nation enjoys the perfect right of deciding for itself.' The same com-

293

§ 57.] INTERVENTION. [CHAP. III.

mittee also alluded to the possibility tluit the condition of the islands
of Cuba and Porto Rico, still the possessions of Spain, and still slave-
holding, might be made the subject of discussion and of contemi)lated
action by the Panama congress. ' If ever the United States [they said]
permit themselves to be associated with these nations in any general
congress assembled for the discussion of common plans in any. way af-
fecting European interests, they will, by such act, not only deprive
themselves of the ability they now possess of rendering useful assist-
ance to the other American states, but also produce other effects preju-
dicial to their own interests.

" Thus the necessity at that day of preserving the great interests of
the Southern States in African slavery, and of preventing a change in
the character of labor in the islands of Cuba and Porto Kico, lost to the
United States the opportunity of giving a permanent direction to the
political and commercial connections of the newly enfranchised Spanish-
American states, and their trade passed into hands unfriendly to the
United States, and has remained there ever since.

" Events, subsequent to that date, have tentled to place us in a posi-
tion to retrieve our mistakes ; among which events may be particularly
named the suppression of the rebellion, the manifestation of our unde-
veloped and unexpected military power, the retirement of the French
from Mexico, and the abolition of slavery in the United States.

"There is good reason to believe that the latter fact has had an im-
portant influence in our favor in Spanish America. It has caused us to
be regarded there with more sympathetic as well as more respectful
consideration. It has relieved those Republics from thefear of'filibus-
terism which had been formerly incited against Central America and
Mexico in the interest of slave extension ; and it has produced an im-
pression of the stability of our institutions and of our i)ublic strength
sufficient to dissipate the fears of our friends or the hopes of those who
wish us ill.

" Thus there exists in the Spanish- American Republics confidence to-
ward the United States. On our side they find a feeling of cordial amity
and friendship, and a desire to cultivate and develop our common in-
terests on this continent. With some of these states our relations are
more intimate than with others, either by reason of closer similarity of
constitutional forms, of greater commercial intercourse, of proximity in
fact, or of the construction or contemplated construction of lines of
transit for our trade and commerce between the Atlantic and the Pacific.
With several of them we have peculiar treaty relations. The treaty of
184G between the United States and ^ew Granada contains stij^ulations
of guarantee for the iieutralitee of that part of the Isthmus within the
present territory of Colombia, and for the protection of the rights of
sovereignty and property therein belonging to Colombia. Similar stip-
ulations appear in the treaty of 1867 with Kicaragua, and of July, 1864,
with Honduras. Those treaties (like the treaty of alliance made with
294

CHAP. III.] MONROE DOCTRINE. [§ 5t.

France in 1778 by Br. Franklin, Silas Deane, and Arthur Lee) consti-
tute jjro tanto a true protective alliance between the United States and
each of those Republics. Provisions of like effect appear in the treaty
of April 19, 1850, between Great Britain and the United States."

Report of Mr. Fish, Sec. of State, to the President, July 14, 1870, accompanying
President's Message of same date.

"The allied and other republics of Spanish origin, on this continent,
.may see in this fact a new proof of our sincere interest in their wel-
fare; of our desire to see them blessed wath good governments, capable
of maintaining order and of preserving their respective territorial integ-
rity, and of our sincere wish to extend our own commercial and social
relations with them. The time is not probably far distant when, in the
natural course of events, the European political connection with this
continent will cease. Our policy should be shaped, in view of this
probability, so as to ally the commercial interests of the Spanish Ameri-
can States more closely to our own, and thus give the United States all
the preeminence and all the advantage which Mr. Monroe, Mr. Adams,
and Mr. Clay contemplated when they proposed to join in the congress
of Panama."

President Grant's Second Annual Message, 1870.

On the ground that " the decision of American questions pertains to
America itself," the Department of State will not sanction an arbitra-
tion by European states of South American difficulties, even with the
consent of the i^arties.

Mr. Frelinghuysen, Sec. of State, to Mr. Reed, Jan. 4, 1883 ; MSS. Inst., Spain.

The Government of the United States would regard with grave anxiety
an attempt on the part of France to force by hostile pressure the pay-
ment by Venezuela of her debt to French citizens.

Mr. Blaine, Sec. of State, to Mr. Noyes, July 23, 1881 ; MSS. Inst., France.
See Mr. Blaine to Mr. Morton, Dec. 16, 1881.

It was held in 1881 inexpedient for the United States to unite with
France and Great Britain in intervening to terminate hostilities between
Chili and Peru.

Mr. Blaine, Sec. of State, to Mr. Morton, Sept. 5, 1881 ; MSS Inst., France ;
see infra, $ 102.

" Mr. Seward, in 1868, when Secretary of State, projected a treaty
with the United States of Colombia, and ' was so desirous of securing
some satisfactory arrangement with that Government,' so writes Mr.
Baker, his biographer (Diplom. Hist, of War, p. 31), 'that he sent
Mr. Caleb Gushing, as a special agent, to join our minister at Bogota
in the negotiations. A treaty embodying the Monroe doctrine was
agreed upon and signed by the ministers.' The treaty was rejected
by the Senate of Colombia, and ' for unknown reasons failed to receive
the approval of the Senate of the United States.' (Appleton's Cyclop.
1809, pp. 108, 701 ; Secretary Evarts's report, March 8, 1880 ; Ex. Doc.

295

§ 57.] INTERVENTION. [ciIAP. III.

No. 112, Senate, 46th Conjj., 2d sess.) Mr. Seward's protest against
French interference, in 1803, in Mexican affairs, though sustained in
the Bouse of liepresentatives, was passed over, no doubt with the assent
of the Administration, without action in the Senate. And Mr. Seward,
in his letter to Montholon, of December 6, 1865, does not place his ob-
jections to French interference in Mexico on the ground of the Monroe
doctrine, but on the ground that 'the people of every state on the
American continent have a right to secure for themselves a republican
government if they choose, and that interference by foreign states to
prevent the enjoyment of such institutions deliberately established is
wrongful, and in its effects antagonistical to the free and popular form
of government existing in the United States.' (Diplom. Hist, of the War,
427.) A striking speech on this topic by General Dix will be found in Dix's
Life, i, 217, in which he says that the protests of Presidents Monroe and
Polk 'are sustained by an undivided public opinioji, even though they
may not have received a formal response from Congress.' This is true
so far as it concerns the abitrary interference of European sovereigns
in American affairs, or the attempt of any European power to obtain
the control of the Isthmus of Panama. But the doctrine should not be
extended so as to preclude a European i)ower from receiving for its own
purposes (e. g., for coaling steamers) a cession of territory in South
America.

" For an article on the Monroe doctrine in relation to the Isthmian
Canal, see North American Review for June, 1880, and see same Review,
December, 1881 ; South. Law Rev., N. S., vi, 729."

Whart. Coin. Am. Law, § 175.

President Woolsey, when discussing this topic, thus speaks (§ 47) :
"Was it intended by this to preclude the South American Republics,
without their will, from receiving such (European) colonies within their
borders — of surrendering their territory for that purpose? Such a
thing, probably, was not thought of. Mr. Adams, when President, in
1825, thus refers to Mr. Monroe's principle, while speaking in a special
message of a congress at Panama. 'An agreement between all the
parties represented at the meeting, that each will guard hy its oirn means
against the establishment of any future European colony within its
borders, may be found desirable. This was more than two years since
announced by my predecessor to the world, as a principle resulting
from the emancipation of both the American continents.' Mr. Adams,
when Se(;retary of State under Mr. Monroe, originated the 'principle,'
and must have known what he meant. But the principle, even in this
time form, was repudiated by the Bouse of Representatives, in a reso-
lution declaring that the United States 'ought not to become parties'
with any of the South American Republics ' to any joint declaration for
the i)urpose of i)reventing the interlerence of any of the Euroi)ean
powers with their independence or form of government ; or to any com-
pact for the i)urpose of preventing colonization upon the continent of
America.'

"On the whole, then (1), tlie doctrine is not a national one. The
House of Rei)resentatives, indeed, had no right to settle questions of
policy or of international law. But the Cabinet has as little. The
opinion of one i)art of the Government neutralized that of another.
(2) The principle tirst mentioned of resisting attempts to overthrow
the liberties of the Spanish Republics, was one of most righteouvs
self-defense, and of vital importance. And such it will probably al-
296

CHAP. III.] MONROE DOCTRINE. [§ S7.

ways be regarded, if a similar juncture should arise. But the other
principlo of ])rohibitiuo European colonization was vague, and if in-
teudwl to ])revent Kussia from titretchiug her borders on the Pacific
farther to the soutli, went far beyond any limit of interference that has
hitherto been set n\). What right had the United States to control
liussia in gaining territory on the Pacific, or planting colonies there,
when she had neither territory nor colony to be endangered, within
thousands of miles °?

"TheMonroedoctrinecameup again in another shape in 1848. Presi-
dent Polk having announced that the Government of Yucatau had
offere<l the dominion over that country to Great Britain, Spain, and the,
United States, urges on Congress such measures as may prevent it
from becoming a colony and a i)art of the dominions of any European
power, whicli would be, he says, in contravention of the declaration of
Mr. ]\Ionroe, and which must by no means be allowed. Mr. Calhoun,
in his .s]>eecli on this subject, shows that the case is very different from
that contemi)lated by i\lr. Monroe, that the declarations of the latter
could not be regarded as expressing the settled policy of this country,
and that they were mere declarations without threat of resifstance.
The 'colonization' contemplated by the Monroe doctrine could not
apply to Yucatan, and the possibility of England (which was especially
intended) acquiring power there was remote. The principle, he adds,
' which lies at the bottom of the (President's) recommendation is, that
when any power on this continent becomes involved in internal war-
fare, and the weaker side chooses to make application to us for support,
we are Ijound to give them support, for fear the offer of the sovereignty
of the country may be made to some other power and accepted. It goes
infinitely and dangerously beyond Mr. Monroe's declaration. It puts it
in the power of other countries on this continent to make us a party to
all their wars.'

"To lay down the principle that the acquisition of territory on this
continent, by any European power, cannot be allowed by the Unitted
States, would go far beyond any measures dictated by tlie system of
the balance of power, for the rule of self-preservation is not applicable
in our case ; we fear no neighbors. To lay down the principle that no
political systems unlike our own, no change from republican forms to
those of monarchy, can be endured in the Americas, would be a step in
advance of the Congresses at Laybach and Verona, for they apprehended
destruction to their political fabrics, and we do not. But to resist
attempts of Pkiropean powers to alter the constitutions of states on
this side of the water, is a wise and just opposition to interference.
Anything beyond this justifies the system which absolute Governments
have initiated for the suppression of revolutions by main force."

After Mr. Monroe's declaration in his message above referred to, the
"proi)Osed intervention in South America by the allied sovereigns hav-
ing been thus opposed by the United States as well as by Great Britain,
was not further pressed ; and, under such circumstances, a resolution
offered in the House of Eepresentatives, ])rotesting against such inter-
vention, was withdrawn. Mr. Monroe, in his message, declared, in ad-
dition, ' that the American continents, by the free and independent con-
ditions which they have assumed and maintained, are henceforth not to
be considered as subjects for future colonization by any European power.'
Mr. J. Q. Adams was then Secretary of State, and was responsible for
this portion of the message. In 1825, when President, he addressed a
special message to Congress in reference to the Panama congress, in

297

^^57.] INTER VENTIOK. [cHAP. III.

which he states that ' an agreement between ail the parties represented
at the meeting, that each will guard by its own means against the es-
tablishment of any future European colony within its borders, may be
found desirable.' And he then gave the following significant exposition
of Mr. Monroe's declaration: 'This was more than two years since an-
nounced by my predecessor to the world as a principle resulting from
the emancii)ation of both the American continents.' The House of
Kepresentatives was at the time, however, in strong opposition to Mr.
Adams's administration, and was peculiarly indisposed to unite in ap-
])r()ving of so distinctively administration a measure as the congress of
Panama. With this was mingled a growing distrust in the permanency
of the Governments of the various South American Eepublics with which
it was proposed to combine. But whatever may have been the motives,
the House expressed an emphatic disapproval of the Administration
project. The United States, so it was resolved by a party majority,
'ought not to become parties' with the South American Governments
'to any joint declaration for the purpose of preventing the interference
of any of the European powers with their independence or form of gov-
ernment; or to any compact for the purpose of preventing colonization
upon the continent of America.' In 1848 the question was again brought
up by Mr. Polk, then President, who in a message to Congress stated
that the Government of Yucatan had offered the protectorship of that
country successively to Great Britain, the United States, and Spain,
and called on Congress to take measures to prevent any part? of the
American continent from being subjected to the control of an^^ European
power. The Yucatan movement towards a protectorship, however, was
so ephemeral that no Congressional action towards its prevention was
necessary, and it became also plain that Congress as a body was not
disposed to pass any measure tending to aflfirm the position taken by
Mr. Polk."

See Wliart. Com. Am. Law, § 175. The Yucatan question has been already dis-
cussed in this section.

President Adams's message, of 1825, with regard to the congress at Panama, and
the papers connected therewith, will be found in the British and Foreign
State Papers for 1825-'6, vol. 13 ; same work, vol. 15, $ 32.

As to Ostend Conference, see Mr. Marcy, Sec. of State, to Mr. Soul6, Aug. 16,
1854; Nov. 13, 1854, MSS. Inst., Spain ; and see 2 Curtis' Buchanan, 136.

As to Mr. Polk's reassertion of the Monroe doctrine, with special reference to
North America, see 1 Curtis' Buchanan, 619 _^.

For a discussion of the Monroe doctrine, see 1 Phillimore Int. Law (3 ed.), 590;
and also review hy Mr. Trescot, 9 South. Quar. Eev., N. S., Ap., 1854, 429.
See also disquisition l)y Mr. Urquhart, 13 Free Press, lib. Dep. of State.

Mr. W.B.Lawrence, in his Com. sur Droit Int. 1,312, argues that Mr. Mon.
roe's doctrine as to foreign interposition in America is substantially the same
as that advanced by the French Government against the Prussian movement
in 1830 to interfere in the affairs of Belgium. (See same volume, 301 ff., for
full discussion of Monroe doctrine.)

The objections to joint action with other powers as to affairs on this
continent are stated by Mr. Everett in notes to Count de Sartiges and
Lord John Russell, given infra, § 72. These notes are to be particularly
studied, as they give views adopted by Mr. Everett after consultation
with Mr. Webster, and subsequently accei>ted by Mr. Marcy and Mr.
(Jass, succeeding Secretaries of State, as well as by Mr. Calhoun in the
Senate.

298

chap. iii.] mexico. [§ 58.

iv. special application.
(1) Mexico.

§58.

The message of President Jacksou on Feb. 7, 1837, on Mexican Relations, and the
accompanying papers, will be found in Senate Doc. No. 160, 24th Cong., 2d
sess. Mr. Buchanan's report of Feb. 19, 1837, on the same, is in Senate Doc.
189, same sess. (See also documents connected with President Jackson's mes-
sage of Dec. 6, 1836, House Ex. Doc. No. 2 ; 24th Cong., 2d sess. ; mess, of
Jan. 26, 1837, House Ex. Doc. No. 105, same sess. ; message of I'eb. 8, 1837,
House Ex. Doc. No. 139, same sess. ; Mr. Howard's report on same, Feb. 24,
1837, House Rep., No. 281, same sess.; report of Secretary of State, Dec. 2,
1837, attached to Prest. Van Buren's message at commencement of 2r)th
Cong., 2d sess., Dec. 5, 1837, House Ex. Doc. No. 3.)

For a history of our early diplomatic relations with Mexico, see Mr. Van Buren,
Sec. of State, to Mr. Butler, Oct. 16, 1829 ; MSS. Inst., Am. St.

President Van Buren's message of April 27, 1838, giving correspondence between
the United States and Mexico, is contained in House Ex. Doc. No. 351,
25th Cong., 2d sess.

Papers connected with the organization of Texas will be found in the British
and Foreign State Papers for 1835-'6, vol. 24, 1267, and in same work for
1842-'3, vol. 31,801.

The correspondence between the United States and Mexico respecting Texas,
will be found in the British and Foreign State Papers, 1836-7, vol. 25, 1075,
1132. In the same volume, 1392, will be found correspondence with Texas
as to annexation.

The correspondence, \^ 1824-1836, relative to boundaries, and to cession of
part of Texas, will be found in British and Foreign State Papers for
1837-8, vol. 26, 828, 1379. Among these documents are instructions by
Mr. Clay (Sec.) to Mr. Poinsett (Mexico), March 15, 1827, ottering to pur-
chase Texas; Mr. Van Buren (Sec.) to Mr. Poinsett, Aug. 25, 1829, to the
same effect, together with a series of documents respecting the settlement
of boundary between Mexico and the United States. The correspondence in
1836 between the United States and Mexico in respect to claims by the
former on the latter is also given in detail, 1379-1427.

The correspondence in 1836 between the Department of State and the Mexican
mission will be found attached to the President's message of December 6,
1836, at the commencement of the 2d session 24th Congress.

For suggestions to Mexico to acquiesce in independence of Texas, see Mr. Web-
ster, Sec. of State, to Mr. Thompson, June 22, 1842; MSS. Inst., Mex.
For elaborate vindication of United States neutrality between Texas and
Mexico, see same to same, July 8, 1842, July 13, 1842.

As to history and policy of annexation of Texas, see hifra, $ 69, 70,72.

No matter how strongly the sympathies of the United States may be
with the liberal constitutional party in Mexico, "our Government cannot
properly intervene in its behalf without violating a cardinal feature of
our foreign policy."

Mr. Cass, Sec. of State, to Mr. McLane, March 7, 1-^59; :\ISS. Inst., Mex.

" While we do not deny the right of any other power to carry on hos-
tile operations against Mexico, for the redress of its grievances, we

299

§ 58.] INTERVENTION. [cHAP. III.

firmly object to its holding possession of any part of that country, or
endeavoring by force to control its political destiny.

" This opposition to foreign interference is known to France, Eng-
land, and Spain, as well as the determination of the United States to
resist any such attempt by all the means in their power. Any design
to act in opposition to this policy has been heretofore disavowed by each
of those powers, and recently by the minister of Spain, in the name of
his Government, in the most explicit manner. * * *

" I have already referred to the extent of the principle of foreign in-
terference which we maintain with regard to Mexico. It is proper to
add that while that principle denies the right of any power to hold per-
manent possession of any part of that countrj", or to endeavor by force
to direct or control its political destiny, it does not call in question its
right to carry on hostile operations against that Eepublic for the redress
of any real grievances it may have suffered. But we insist that such
hostilities be fairly prosecuted for that purpose and be not converted
into the means of acquisition or of political contract."

Mr. Cass, Sec. of State, to Mr. McLane, Sept. 20, 1860; MSS. Inst., Mex.

" Our relations with Mexico remain in a most unsatisfactory condi-
tion. In my last two annual messages I discussed extensively the sub-
ject of these relations, and do not now propose to repeat at length the
facts and arguments then presented. They proved conclusively that
our citizens residing in Mexico, and our merchants trading thereto, had
suffered a series of wrongs and outrages such as we have never pa-
tiently borne from any other nation. For these our successive minis-
ters, invoking the faith of treaties, had, in the name of their country,
persistently demanded redress and indemnification, but without the
slightest effect. Indeed, so confident had the Mexican authorities be-
come of our patient endurance, that they universally believed they
might commit these outrages upon American citizens with absolute
impunity. Thus wrote our minister in 1856, and expressed the opinion,
that ' nothing but a manifestation of the power of the Government and
of its purpose to punish these wrongs will avail."

" Afterwards, in 1857, came the adoption of a new constitution for
Mexico, the election of a President and Congress under its provisions,
and the inauguration of the President. Within one short month,
however, this President was expelled from the capital by a rebellion
in the army ; and the supreme power of the Eepublic was assigned to
General Zuloaga. This usurper was, in his turn, soon compelled to re-
tire, and give place to General Miramon.

" Under the constitution which had thus been adopted, Seiior Juarez,
as chief justice of the supreme court, became the lawful President of
the Eepublic; and it was for the maintenance of the constitution and
his authority derived from it, that the civil war commenced, and still
continues to be prosecuted.
300

CHAP. III.] MEXICO. [^ 58.

" Throughout the year 1858, the constitutional party grew strouger
and stronger. In the previous history of Mexico, a successful military
revolution at the capital had almost universally been the signal for
submission throughout the Republic. Not so on the present occasion.
A minority of the citizens persistently sustained the constitutional
Government. When this was recognized in April, 1859, by the Gov-
ernment of the United States, its authority extended over a large
majority of the Mexican States and people, including Vera Cruz, and
all the other important seaports of the Eepublic. From that period
our commerce with Mexico began to revive, and the constitutional
Government has aflbrded it all the protection in its power.

" Meanwhile, the Government of Miramon still held sway at the
capital and over the surrounding country, and continued its outrages
against the few American citizens who still had the courage to remain
within its power. To cap the climax, after the battle of Tacubaya, in
April, 1859, General Marquez ordered three citizens of the United
States, two of them physicians, to be seized in the hospital at that-
place, taken out and shot, without crime, and without trial. This was
done, notwithstanding our unfortunate countrymen were at the moment
engaged in the holy cause of affording relief to the soldiers of both par-
ties who had been wounded in the battle, without making any distinc-
tion between them.

" The time had arrived, in my opinion, when this Government was
bound to exert its power to avenge and redress the wrongs of our
citizens, and to afford them protection in Mexico. The interposing
obstacle was that the portion of the country under the sway of Mira-
mon could not be reached without passing over territory' under the
Jurisdiction of the constitutional Government. Under these circum-
stances, I deemed it my duty to recommend to Congress, in my last
annual message, the employment of a sufficient military force to pen-
etrate into the interior, where the Government of Miramon was to be
found, with, or, if need be, without the consent of the Juarez Govern-
ment, though it was not doubted that this consent could be obtained.
Never have I had a clearer conviction on any subject than of the jus-
tice, as well as wisdom, of such a policy. No other alternative was
left, except the entire abandonment of our fellow-citizens wlio had gone
to Mexico under the faith of treaties to the systematic injustice, cruelty,
and oppression of MiriYmon's Government. Besides, it is almost cer-
tain that the simple authority to emi)loy this force would of itself have
accomplished all our objects without striking a single blow. The con-
stitutional Government would, then, ere this have been established at
the city of Mexico, and would have been ready and willing, to the ex-
tent of its ability, to do us justice.

" In addition, and I deem this a most important consideration, Euro-
])ean Governments would have been deprived of all pretext to interfere
in the territorial and domestic concerns of Mexico. We should thus

301

^ 58.] IN CKl.'VKNTrON. [CHAF. III.

have boen relieved iVoiu the obligation ul' resisting, even by iorre,
shoiihl this bocoine nocossaiw, any attempt by these Governments to
«h'])rive our neighboring b*e[iiibli(; of portions of her territory, a (bity
irom wliicli we could not shrink without abandoning the traditional
and established policy of the American people. I am happy to observe
that, firmly relying upon the justice and good faith of these Govern-
ments, there is no present danger that such a contingency will happen.
'' Having discovered that my recommendations would not be sustained
by Congress, the next alternative was to accomplish, in some degree,
if possible, the same objects by treaty stipulations with the constitu-
tional Government. Such treaties were accordingly concluded by our
late able and excellent minister to Mexico, and on the 4th of Jaunary
last were submitted to the Senate for ratification. As these have not
yet received the final action of that body, it would be improjier for me
to present a detailed statement of their provisions. Still, I may be
permitted to express the opinion in advance, that they are calculated
to promote the agricultural, manufacturing, and commercial interests
of the country, and to secure our just influence with an adjoining Tle-
jjublic as to whose fortunes and fate we can never feel indifferent;
whilst at the same time they provide for the jiayment of a considerable
amount towards the satisfaction of the claims of our injured fellow-citi-
zens."

President Buchanan's Last Annual Message, 1860.

" That Eei)ublic (Mexico) has been in a state of constant revolution
ever since it achieved its independence from Spain. The various con-
stitutions adopted from time to time had been set at naught almost as
soon as proclaimed; and one military leader after another, in rapid
succession, had usurped the Government. This fine country, blessed
with a benign climate, a fertile soil, and vast mineral resources, was re-
duced by civil war and brigandage to a condition of almost hopeless
anarchy. ^Meanwhile, our treaties with the Eepublic were incessantly
violated.

'^Our citizens were imi)risoned, expelled from the country, and in some
instances nuirdered. Then- vessels, merchandise, and other property
Avere seized and confiscated. While the central Government at the
capital was acting in this manner, such was the general lawlessness
prevailing that difterent i)arties claiming and exercising local authority
in several districts were committing similar outrages on our citizens.
Our treaties had become a dead letter, and our commerce with the Re-
])ublic was almost entirely destroyed. The claims of American citizens
•filed in tlie State Department, for which they asked the interposition
of their own Government with that of Alexico to obtain redress and in-
demnity, exceeded 8l(>.<>()(),0()0. Although tliis amount may have been
exaggerated by the claimants, still their actual losses must have been
very large.

"In all these cases, as they occurred, our successive ministers de-
manded redress, but their demands were only followed by new injuries.
Their testimony was uniform and emphatic in reference to the only
remedy which in their judgment would prove efi'ectual. 'Nothing but
a manifestation of the power of the Government of the United States,'
302

CHi^. III.] MEXICO. [§ 58.

wrote Mr. Jolin Forsyth, oiir miui.ster in 185G, 'and of its purpose to ])un-
isli those wrongs will avail. I assure you tliat the universal belief here
is that there is nothinj^- to be ai)prehended from the Government of the
United States, and that local Mexican officials can commit these out
rages ui)on American citizens with absolute impunity.'

"Ip the year 1857 a favorable change occurred in the affairs of the
Republic, inspiring better hopes lor the future. A constituent Con-
gress, elected by the i)eople of the different States for this purjiose, had
framed and adopted a republican constitution. It adjoui'ned on the
17th of February, 1857, having i)rovided for a popular election to be held
in July for a President and members of Congress. At this election
General Comonfort was chosen President, almost without opposition.
His term of office was to commence on the 1st of December, 1857, and to
continue for four years. In case his office should become vacant, the
constitution had provided that the chief justice of Mexico, then General
Juarez, should become President until the end of the term. On the 1st
of December, 1857, General Comonfort appeared before the Congress
then in session, took the oath to sujiport the constitution, and was dul3'
inaugurated.

" But the hopes thus inspired for the establishment of a regular con-
stitutional Government soon proved delusive. President Comonfort,
within one brief month, was driven from the capital and thellepublic
by a military rebellion headed by General Zuloaga: and General Juarez
consequently became the constitutional President of Mexico until the
1st day of December, 1861. General Zuloaga instantly assumed the
name of President, with indefinite powers ; and the entire diplomatic
corps, including the minister from the United States, made haste to
recognize the authority of the usurper without awaiting instructions
from their resi)ective Governments. But Zuloaga was speedily expelled
from i)ower. Having encountered the resistance of the people in many
parts of the Republic, and a large portion of the capital having ' pro-
nounced' against him, he was in turn compelled to relinquish the Pres-
idency. The field was now cleared for the elevation of General Mira-
mon. He had from the beginning been the favorite of the so-called
'church party,' and was ready to become their willing instrument in
maintaining the vast estates and prerogatives of the church, and in
suppressing the liberal constitution. An assembly of his partisans,
called together without even the semblance of authority, ele(;ted him
President, but he warily refused to accept the office at their hands. He
then resorted to another but scarcely more plausible expedient to place
himself in i)ower. This was to identify himself with Geneial Zuloaga,
who had just been deposed, and to bring him again upon tlie stage as
President. Zuloaga accordmgly reappeared in this cliaracter, but his
only act was to ai)point JVIiramon 'President substitute' wlu-n he again
retired. It is under this title that Miramon has since exercised military
authority in the city of Mexico, expecting by this stratagem to aj)i)io-
priate to himself the recognition of the foreign ministers which has
been granted to Zuloaga. He succeeded. The ministers contimu'd
their relations with him as ' President substitute ' in the same manner
as if Zuloaga had still remained in ])ower. It was by this farce, for it
deserves no better name, that INIiramon succeeded in grasping the Pres-
idency. The idea that the chief of a nation at his own discretion may
transfer to whomsoever he please the trust of governing, delegated to
him for the l)eneHt of the peoi)le, is too absmd to receive a inomeut's
countenance. But when we reflect that Zulojvga, from whom Miramou

303

§ 58.] INTERVENTION. [CHAP. III.

derived bis title, was himself a military usurper, having expelled the
constitutional President (Conionfort) from office, it would have been a
lastinji' disfrrace to the Mexican people had they tamely /submitted to
the yoke. To such an imputation a large majority proved themselves
not to be justly exposed. Although, on former occasions a seizure of
the capital an<l the usurpation of power by a military chieftain had
been generally followed, at least for a brief season, by an acquiescence
of the Mexican people, yet they now rose boldly and independently to
defend their rights.

" President Juarez, after having been driven from the city of Mexico
by Zuloaga, proceeded to form a constitutional Government at Guana-
juato. From thence he proceeded to Vera Cruz, where he put his ad-
ministration in successful operation. The people in many portions of
the Republic rallied to his support and flew to arms. A civil war thus
began between the friends of the constitution and the partisans of Mira-
mon. In this conflict it was not possible for the American people to
remain indifferent si)ectators. They naturally favored the cause of Presi-
dent Juarez, and expressed ardent wishes for his success. Meanwhile,
JNIr. Forsyth, the American minister, still continued at the city of Mex-
i(-o in the discharge of his oflicial duties uutil June, 1858, when he sus-
])euded his diplomatic relations with the Miramou government, until
he should ascertain the decision of the President. Its outrages towards
American citizens and its personal indignities towards himself, without
hope of amendment or redress, rendered his condition no longer toler-
able. Our relations, bad as they had been under former Governments,
had now become still worse under that of Miramou. President Bu-
chanan ap{)roved the step which Mr. Forsyth had taken. He was conse-
quently directed to demand his passports, to dei)osit the archives of the
legation with Mr. Black, our consul at the city of Mexico, and to pro-
ceed to Vera Cruz, where an armed steamer would be in readiness to
convey himself and family to the Cnited States.

'' Thus was all diplomatic intercourse finally terminated with the Gov-
ernment of Miramon, whilst none had been organized with that of
Juarez. The President entertained some hope that this rupture of dip-
lomatic relations might cause Miramon to reflect seriously on the danger
of war with the United States, and might at least arrest further out-
rages on our citizens. Instead of this, however, he persisted in his
course of violence against the few American citizens who had the cour-
age to remain under his power. The President, in his message of De-
cember, 1851), informs Congress that ' murders of a still more atrocious
character have been committed in the very heart of Mexico, under the
authority of .Aliramon's government, during the present year. Some of
these were worthy oidy of a barbarous age, and if they had not been
clearly proven, would have seemed impossible in a country which claims
to be civilized.' And in that of December, 18(50, he says : ' To cap the
cliniax, after the battle of Tacubaya, in April, LS.jI), General Marquez
ordered three citizens of the United States, two of them pliysicians, to
be seized in the hospital at that place, taken out and shot, without crime
and without trial. This was done, notwithstanding our unfortunate
countrymen were at the moment engaged in the holy cause of affording
relief to the soldiers of both i)arties who had been wounded in the bat-
tle, without making any distinction between them.

'' ' Little less shocking was tlie recent fate of Ormond Chase, who was
shot in Tepic, on the 7th of August, by order of the same Mexican gen-
eral, not only without ii trial, but without any conjecture by his friends

304

CHAP. III.] MEXICO. [§ 58.

of the cause of his arrest.' He was represented to have been a young
man of good character and intelligence, who had made numerous fi iends
in Tepic, and his uncxi)ected execution shocked the wliole couiujunity.
'Other outrages,' the President states, 'might be ennmeiated, but
these are sufhcient to illustrate the wretched state of the country and
the unjjrotected condition of the^persons and property of our citizens iu
Mexico.'

"'The wrongs which we La\'e suffered from Mexico are before the
world, and must deeply imi)ress every American citizen. A Govern-
ment which is either unable or unwilling to redress such wrongs is de-
relict to its highest duties.' Meanwhile the civil war between the
parties was conducted with various success, but the scnle prei)onder-
ated in favor of the constitutional cause. Ere long the Government of
Juarez extended its authority, and was acknowledged in all the im-
portant i)orts and throughout the sea-coasts and external territory of
the Eepublic, whilst the ])ower of Miranion was conlined to the city of
Mexico and the surrounding IStates.

" The final triumph of Juarez became so probable that President Bu-
cliauan deemed it his duty to inquire and ascertain whether, according
to our constant usage in such cases, he might not recognize the consti-
tutional (lovernment. For the ])urpose of obtaining reliable informa-
tion on this point, he sent a confidential agent to Mexico to examine
and report the actual condition and prospects of the belligerents. In
consequence of his report, as well as of intelligence from other sources, he
felt justified in appointing a new minister to the Mexican Republic.
For this otfice Mr. liobert M. McLane, a distinguished citizen of Maryland,
was selected. He proceeded on liis mission on the Sth of March, 1859,
invested ' with discretionary authority to recognize the Government of
President Juarez, if on his arrival in Mexico he should find it entitled to
such recognition according to the established ])ractice of the United
States.' In consequence, on the 7th of April, .Air. McLane recognized
the constitutional Government by presenting his credentials to Presi-
dent Juarez, having no hesitation, as he said, ' in pronouncing the
Government of Juarez to be the only existing Government of the Re-
public' He was cordially received by the authorities at Vera Cruz,
who have ever since manifested the most friendly disposition toward
the United States.

" Unhai)pily, however, the constitutional government, though sup-
ported by a large majority, both of the jx^ople and of the several Mexi-
can states, had not been able to exi)el Miramon from the capital. In
the opinion of the President it had now become the imperative duty of
Congiess to act without further delay, and to enforce redress from the
Government of Miramon for the wrongs it had committed, in violation
of the faith of treaties, against citizens of the United States.

''Toward no other Government would we have manifested so long
and so i)atient a forbearance. This arose from our warm sympathies
foi- a neighboring Republic. The territory under the sway of Miramon
around the caintal was not accessible to our iorces without passing
through the states under the jurisdiction of the constitutional govern-
ment. But this, from the beginning, had always manifested the warm-
est desire to cultivate the most friendly relations with our country.
No doubt was therefore entertained that it would cheerfully grant us
the right of passage. Moreover, it well knew that the expulsion of
Miramon would result in the triumi)h of the constitutional government
and its establishment over the whole territory of Mexico. What was,

S. Mis. 1G2— VOL. I L>0 ^^^

5 58.] INTERVENTION. [CHAP. III.

also, deemed of great importance by the President, this would remove
from us the danger of a foreign war in support of the Monroe doctrine
against any European nation which might be tempted, by the distracted
condition of the llepublic, to interfere forcibly in its internal affairs
under the pretext of restoring peace and order."

Mr. Buchanan's "Defense," quoted 2 Curtis' Buch., 215.

:'^' The. actual condition of affairs in Mexico is so imperfectly under-
stood here that the President finds it ver;y difticult to give you particu-
lar and practical directions for the regulation of your conduct during

your mission. ,.,,.. fc-vj-;?'

" Our latest information was, in substance, that the provisionalgov-
ernment of President Juarez, so long confined to the sea-coasts of the
country, had finally overthrown its adversaries and established itself
at the capital ; that the opposing armies had been demoralized and
dispersed, and that there was no longer any armed resistance in the
states; that an election for president had been held, in conformity with
the constitution of 1857, and that the now provisional president had
probably secured a majority of the votes, although the result was as :\ et
not certainly known. The pleasure which these events have inspired
is unhappily diminished by rumors that the Government is without suf-
ficient authority or hold on the public confidence to maintain order;
that robberies are of frequent occurrence on the high roads, and even
that a member of our late legation in the country has been murdered
on his way from the City of Mexico to Vera Cruz.

"You will apply yourself at once, with energy and diligence, to in-
vestigate the truth of this last-mentioned occurrence, which, if found to
have been accurately reported, will not only be regarded as a high
offense against the dignity and honor of the United States, but will
prove a severe shock to the sensibilities of the American people.

"The President is unable to conceive that any satisfactory explana-
tion of a transaction so injurious to the character of Mexico can be
made. He will, however, wait for your report concerning it, though
with the deepest anxiety, before taking action upon the subject.

" I find the archives here full of complaints against the Mexican Gov-
ernment for violations of contracts and spoliations and cruelties prac-
ticed against American citizens. These complaints have been lodged
in this Department, from time to time, during the long reign of civil
war in which the factions of Mexico have kept that country involved,
with a view to having them made the basis of demands for indemnity
and satisfaction whenever government should regain in that country
sufBcient solidity to assume a character for responsibility. It is not the
President's intention to send forward such claims at the present mo-
ment. He willingly defers the performance of a duty which at any
time would seem ungracious, until the incoming administration in
Mexico shall have had time, if possible, to cement its authority and re-
duce the yet disturbed elements of society to order and harmony. You
30G

CHAP. III.] MEXICO. [§58.

will, however, be expected, in some manner which will be marked witb
firmness as well as liberality, to keep the Government there in mind
that snch of these claims as shall be fonud jnst will, in due time, be
presented and urged upon its consideration.

" While now, as heretofore, it is a duty of this Government to reason
with that of Mexico, and dei)recate a continuance of the chronic reign
of disorder there, a crisis has unhappily arrived in which the perform-
ance of this duty is embarrassed by the occurrence of civil commotions
in our own country, by which Mexico, in consequence of her proximity,
is not unlikely to be aifected. The spirit of discontent seems, at lastj
to have crossed the border, and to-be engaged in an attempt to over:^
throw the authority of this Government in some parts of the country
which adjoin the Mexican Republic. It is much to be feared that new
embarrassments of the relations of the two countries will happen when
authority so long prostrated on the Mexican side finds the power of the
United States temporarily suspended on this side of the frontier.
Whatever evils shall thus occur, it is much to be feared, will be aggra-
vated by the intervention of the Indians, who have been heretofore \yith
difficulty restrained from violence, even while the Federal authority
has been adequately maintained.

" Both of the Governments must address themselves to this new and
annoying condition of things, with common dispositions to mitigate its
evils and abridge its duration as much as possible.

" The President does not expect that you will allude to the origin or
causes of our domestic difficulties in your intercourse with the Govern-
ment of Mexico, although that Government will rightfully as well as
reasonably ask what are his expectations of their course and their end.
On the contrary, the President will not sutter the representatives of the
United States to engage in any discussion of the merits of those diffi-
culties in the presence of foreign powers, much less to invoke even their
censure against those of our fellow-citizens who have arrayed themselves
in opposition to its authority.

" But you are instructed to assure the Government of Mexico that
these difficulties, having arisen out of no deep and permanent popular
discontent, either in regard to our system of government itself or to the
exercise of its authority, and being attended by social evils which are
as ruinous as they are unnecessary, while no organic change that iscou-
temi)lated coftld possibly bring to any portion of the American i)eople
any advantages of security, peace, prosperity, or ha])piness equal to
those which the Federal Union so etiectually guarantees, the President
confidently believes and expects that the people of the United States,
in the exercise of the wisdom that hitherto has never failed them, will
speedily and in a constitutional way adopt all necessary remedies for
the restoration of the public peace and the preservation of the Federal
Union,

307

§ 58.] INTERVENTION. [CHAP. III.

"The success of this Government in conducting affairs to that consum-
mation may depend to some small degree on the action of the Govern-
ment and people of Mexico in this new emergency. The President
could not fail to see that Mexico, instead of being benefited by the pros-
tration or the obstruction of federal authority in this country, would be
exposed by it to new and fearful dangers. On the other hand, a condi
tiou of anarchy in Mexico must necessarily operate as a seduction to
those who are conspiring against the integrity of the Union to seek
strength and aggrandizement for themselves by conquests in JMexico
and other parts of Spanish America. Thus, even the dullest observer
is at last able to see what was long ago distinctly seen by those who are
endowed with any considerable i)erspicacity, that peace, order, and con-
stitutional authority in each and all of the several Eepublics of this
continent are not exclusively' an interest of any one or more of them,
but a common and indispensable interest of them all.

" This sentiment will serve as a key to open to you, in every case, the
purposes, wishes, and expectations of the President in regard to your
mission, which, I hardly need to say, he considers at this juncture per-
hajjs the most interesting and important one within the whole circle of
our international relations.

" The President of the United States does not know, and he will not
consent 1,0 know with prejudice or undue favor any jwlitical party, relig-
ious class, or sectional interest in Mexico. He regrets that anything
should have occurred to disturb the peaceful and friendly relations of
Mexico with some of the foreign states lately represented at her capital.
He hopes most sincerely that those relations may be everywhere renewed
and reinvigorated, and that the independence and sovereignty of Mex-
ico and the government which her people seem at last to have accepted,
after so many conflicts, may be now universally acknowledged and re-
spected.

"Taking into view the actual condition and circumstances of Mexico
as well as those of the United States, the President is fully satisfied
that the safety, welfare, and happiness of the latter would be more ef-
fectually promoted if the former should retain its complete integrity
and independence, than they could be by any dismemberment of Mex-
ico, with a transfer or diminution of its sovereignty, even though
thereby a portion or the whole of the country or its sovereignty should
be transferred to the United States themselves. The President is, more-
over, well aware, that the ability of the Government and people of Mex-
ico to i>reserve and maintain the integrity and the sovereignty of the
Kepublic might be very much impaired, under existing circumstances,
by hostile or unfriendly action on the part of the Government or of the
people of tlic United States. If he needed any other incentive to prac-
tice justice and equality to Mexico, it would be found in the reflection
that the very contention and strife in our own country which at this
n)oment excite so much domestic disquietude and so much surprise
308

CHAP. III.] MEXICO. [§ 58.

throughout a large part of the world, could probabl;y never have hap-
pened if Mexico had always been able to maintain with firmness real
and unquestioned sovereignty and independence. But if Mexico has
heretofore been more unfortunate in these respects than many other
modern nations, there are still circumstances in her case which justify
a hope that lier sad experience may be now coming to an end. Mexico
really has, or ought to have, no enemies. The world is deeply inter-
ested in the development of her agricultural, and especially her mineral
and commercial resources, while it holds in high respect the simple virt-
ues and heroism of her people, and, above all, their inextinguishable
love of civil liberty,

" The President, therefore, will use all j^roper influence to favor the
restoration of order and authority in Mexico, and, so far as it may be in
his power, he will prevent incursion and every other form of aggression
by citizens of the United States agaiust Mexico. But he enjoins you to
employ your best efforts in convincing the Government of Mexico and
even the people, if, with its approval, you can reach them, that the surest
guarantee of their safety agaiust such aggressions is to be found in a per-
manent restoration of the authority of that Government. If, on the other
hand, it shall appear in the sequel that the Mexican people are now only
resting a brief season to recover their wasted energies sufficiently to lacer-
ate themselves with new domestic conflicts, then it is to be feared that
not only the Government of the United States but many other Govern-
ments will find it impossibl-e to prevent a resort to that magnificent
country of a class of persons, unhapi)ily too numerous everywhere, who
are accustomed to suppose that visionary schemes of public interest,
aggrandizement, or reform will justify even lawless invasion and ag-
gression.

"In connection with this point it is proper that you should be in-
formed that the Mexican Government has, through its representative
here, recently complained of an apprehended attempt at invasion of the
State of Sonora by citizens of California, acting, as is alleged, with the
knowledge and consent of some of the public authorities in that State.
You will assure the Mexican Government that due care being first taken
to verify the facts thus presented, effective means shall be adopted to
put our neutrality laws into activity.

" The same representative has also expressed to the President an ap-
prehension that the removal of the Federal troops from the Texan bor-
der may be followed by outbreaks and violence there. There is, perhaps,
too much ground for this apprehension. Moreover, it is impossible to
foresee the course of the attempts which are taking place in that region
to subvert the proper authority of this Government, The President,
however, meantime directs you to assure the Mexican Government that
due attention shall be bestowed on the condition of the frontier, with a
view to the preservation and safety of the peaceable inhabitants resid-

309

§ r)8.] INTERVENTION. [cHAP. III.

iiift- there. He hopes and trusts that equal attention will be given to
this important subject by the authorities of Mexico.

" These matters, grave and urgent as they are, must not altogether
withdraw our attention from others to which I have already incident-
ally alluded, but which require more explicit discussion.

"For a few years past, the condition of Mexico has lieeu so unsettled
as to raise the question on both sides of the Atlantic whether the time
has not come when some foreign power ought, in the general interest
of society, to intervene to establish a protectorate or some other form
of Government in that country and guarantee its continuance there.
Such schemes may even now be held under consideration by some Eu-
ropean nations, and there is also some reason to believe that designs
have been conceived in some parts of the United States to effect either
a partial dismemberment or a complete overthrow of the Mexican Gov-
ernment, with a view to extend over it the authority of the newly
l)rojected confederacy, which a discontented part of our people are at-
tempting to establish in the southern part of our own country. You
may possibly meet agents of this projected confederacy, busy in pre-
paring some further revolution in Mexico. You will not fail to assure
the Government of Mexico that the President neither has, nor can ever
have, any sympathy with such designs, in w hatever quarter thej' may
arise, or whatever character they may take on.

"In view of the prevailing temper and i^olitical habits and opinions
of the Mexican people, the President can scarcely believe that the dis-
affected citizens of our own country, who are now attempting a dismem-
berment of the American Union, will hope to induce Mexico to aid them
by recognizing the assumed independence which they have proclaimed,
because it seems manifest to him that such an organization of a distinct
Government over that part of the present Union which adjoins Mexico
would, if possible, be fraught with evils to that country more intolera-
ble than any which the success of those desperate measures could inflict
even upon the United States. At the same time it is manifest that the
♦'xisting political organization in this country affords the surest guar-
anty Mexico can have that her integrity, union, and independence will
be respected by the whole people of the American Union.

"The President, however, expects that you will be w^atchful of such
designs as I have thus described, however improbable they may seem,
and that you will use the most effective measures in your power to
counteract any recognition of the projected Confederate States by the
Mexican Government, if it shall be solicited.

"Your large acquaintance with the character of the Mexican people,
their interests, and their policy will suggest many proper arguments
against such a measure, if any are needful beyond the intimations I
have already given.

"In conclusion, the President, as you are well aware, is of opinion
that, alienated from the United States as the Spanish -American Re-
310

CHAP. III.] MEXICO. [§ 58-

publics have been for some time i)ast — largely, perhaps, by reason of
errors and prejudices i^eculiar to themselves, and yet uot altogether
without fault on our own part — that those states and the United States
nevertheless, in some respects, hold a common attitude and relation
towards all other nations ; that it is the interest of them all to be friends
as they are neighbors, and to mutually maintain and support each other
so far as may be consistent with the individual sovereignty which each
of them rightly enjoys, equally against all disintegrating agencies within
and all foreign influences or' power without their borders.

''The President never for a moment doubts that the republican sys-
tem is to pass safely through all ordeals and prove a permanent success
in our own country, and so to be commended to adoption by all other
nations. But he thinks also that that system everywhere has to make
its way painfully through difliculties and embarrassments, which result
from the action of antagonistical elements which are a legacy of former
times and very difiFerent institutions. The President is hopeful of the
ultimate triumph of this system over all obstacles, as well in regard to
Mexico as in regard to every other American state; but he feels that
those states are nevertheless justly entitled to a greater forbearance
and more generous sympathies from the Government and people of the
United States than they are likely to receive in any other quarter.

"The President trusts that your mission, manifesting these senti-
ments, will reassure the Government of Mexico of his best disposition
to favor their commerce and their internal improvements. He hopes,
indeed, that your mission, assuming a spirit more elevated than one of
merely commerce and conventional amity, a spirit disinterested and
unambitious, earnestly American in the continental sense of the word,
and fraternal in no affected or mere diplomatic meaning of the term,
while it shall secure the confidence and good will of the Government
of Mexico, will mark the inauguration of a new condition of things
directly conducive to the ])rosperity and happiness of both nations,
and ultimately auspicious to all other republican states throughout the
world."

Mr. Seward, Sec. of State, to Mr. Corwin, Ap. 6, 1861; MSS. Iqst., Mex.;
Dip. Corr., 18(51. As to neutrality in connectiou with Mexico; see § 402.

The refusal of the United States to take part in the movement of
France, Spain, and Great Britain to comj^el Mexico to the payment of
her debts to these nations is noticed in 2 Lawreiice'sCom. sur droit int.,
339, 340. See further, 5 Calhoun's Works, 379.

The British and Foreign State Papers for 18Gl-'2, vol. r>2, give the
correspondence between Great Britain, France, Spain, and the United
States respecting the affairs of Mexico, the non-settlement of claims of
British creditors and others, the murder of the British vice-consul at
Tasco, the Spanish occupation of Vera Cruz, the suspension of diplo-
matic relations, and the combined operations of Great Britain, France,
and Sj)ain against Mexico.

311

§58.] « INTERVENTIOX. [CHAP. III.

The claims so pressed may be thus classified :

1. British. Uii November 1<), bSOO, the house of the British legation
was broken into and £15-. 000 sferlinj;' bonds, belougiu.u' to British sub-
jects, were carried olf. (See Fraser's Mag, Dec, 1801, where it is
said that this attack was a sort of "reprisal" for the action of British
naval officers, who had evaded the Mexican tariff on the exportation of
silver by carrying- off silver in British cruisers.) Damages were also
claimed for the murder of a British subject on April 3, 1859. There
was also a claim for bonded debts secured by a prior diplomatic arrange-
ment with Mexico.

2. French. During Miramon's revolutionary administration an issue
of bonds for $15,000,000 was made through the agency of Jecker, a Swiss
banker, the amount to be raised by this process being $750,000. These
bonds fell into the hands of Jecker's French creditors. A claim was
made also for $12,000,000 for torts on French subjects.

3. Si>anish. By the Miramon revolutionary government certain prior
Spanish claims of various types were recognized. These, however, were
repudiated b^' the Juarez government. Another grievance was the
abrupt dismissal of the Spanish minister by the latter government.
(See Tucker's Monroe Doct., 93.) As will be hereafter seen, Great
Britain and Spain withdrew from the alliance before the hostile occupa-
tion of Mexican soil by France. Infra, § 318.

As to the character of the claims in these cases, see infra, § 232.

Ah to forcible redress, infra, § 318.

As to negotiations with Spain in reference to the alliance with France and
Great Britain in 1860, to compel payment of claims on Mexico, see corre-
spondence in U. S. Dip. Corr. for 1862, 504 ff.

" The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of a note which was addressed to him
on the 30th day of November last, by Mr. Gabriel G. y Tassara, min-
ister plenipotentiary of Her Majesty the Queen of Si)ain ; Mr. Henri
Mercier, minister plenipotentiary of His Majesty the Emperor of the
French ; and the Lord Lyons, minister plenipotentiary of Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland.

" With that paper, the aforesaid ministers have submitted the text
of a convention which was concluded at London on the 31st of October
last, between the sovereigns before named, with a view of obtaining,
through a common action, the redress of their grievances against the
Eepublic of Mexico.

" In the preamble the high contracting parties say that they have
been placed by the arbitrary and vexatious conduct of the authorities of
the Kepublic of Mexico under a necessity for exacting from those author-
ities a more eflective protection for the persons and properties of their
subjects, as well as the execution of obligations contracted with them
by the lieimblic of Mexico, and have agreed to conclude a convention
between themselves for the purpose of combining their common action
in the case.

"In the first article the high contracting parties bind themselves
to make, immediately after the signing of the convention, the neces-
sary arrangements to send to the shores of Mexico land and sea
31:^

CHAP. III.] MEXICO. [§ 58.

forces combiued, the effective number of which shall be determined in
a further exchange of communications between their Governments, but
the total of which must be suflicient to enable them to seize and occupy
the various fortresses and military positions of the Mexican sea-coasts ;
also that the commanders of the allied forces shall be authorized to ac-
complish such other operations as roay, on the spot, be deemed most
suitable for realizing the end specified in the j^reamble, and especially
for insuring the safety of foreign residents ; and that all the measures
which are thus to be carried into effect shall be taken in the name and
on account of the high contracting parties without distinction of the
particular nationality of the forces employed in executing them.

" In the second article the high contracting parties bind themselves
not to seek for themselves, in the employment of the coercive measures
foreseen by the present convention, any acquisition of territory, or any
peculiar advantage, and not to exercise in the subsequent affairs of
Mexico anj' influence of a character to impair the right of the Mexican
nation to choose and freeh^ to constitute the form of its own govern-
ment.

" In the third article the high contracting parties agree that a com-
mission composed of three commissioners, one appointed by each of the
contracting powers, should be established, with full power to determine
all questions which may arise for the employment and distribution of
the sums of money which shall be recovered from Mexico, having regard
to the respective rights of the contracting parties.

" In the fourth article the high contracting i^arties, expressing their
desire that the measures which it is their intention to adopt may not
have an exclusive character, and recognizing the fact that the Gov-
ernment of the United States, like themselves, has claims of its own to
enforce against the Mexican Kepublic, agree that, immediat .'\v after
the signing of the present convention, a copy of it shall be c^immuni-
cated to the Government of the United States, and that this Govern-
ment shall be invited to accede to it, and that in anticipation of such
accession, their respective ministers at Washington shall be furnished
with full powers to conclude and sign, collectively or severally, with a
plenipotentiary of the United States, to be designated by the Presi-
dent, such an instrument.

•' But as the high contracting powers would expose themselves, in
making any delay in carrying into effect articles one and two of the
convention, to failure in the end which they wish to attain, they have
agreed not to defer, with a view to obtaining the accession of the United
States, the commencement of the stipulated operations beyond the pe-
riod at which their combined forces may be united in the vicinity of
Vera Cruz.

" The plenipotentiaries, in their note to the undersigned, invite the
United States to accede to the convention. The undersigned, having

313

§ 58.] INTERVENTION. [CHAI>, lU.

submitted the subject to the President, will proceed to commuuicatehis
views thereon.

"First. As the undersij?ned has heretofore had the honor to inform
each of the plenipotentiaries now addressed, the President does not feel
himself at liberty to question, and he does not question, that the sover-
eigns represented have undoubted right to decide for themselves the
fiict whether they have sustained grievances, and to resort to war a gainst
Mexico for the redress thereof, and liave a right also to levy the war sev-
erally or jointly.

"Secondly. The United States have a deep interest, which, however,
they are happy to believe is an interest held by them in common with the
high contracting powers and with all other civilized states, that neither
of the sovereigns by whom the convention has been concluded shall seek
or obtain any acquisition of territory or any advantage peculiar to itself,
and not equally left open to the United States and every other civilized
state, within the territories of Mexico, and especially that neither one
nor all of the contracting parties shall, as a result or consequence of the
hostilities to be inaugurated under the convention, exercise in the subse-
quent affairs of Mexico an 3' inliuenceof a character to impair the right of
the Mexican people to choose and freely to constitute the form of its own
government.

" The undersigned -renews on this occasion the acknowledgment here-
tofore given, that each of the high contracting parties had informed the
United States substantially that they recognized this interest, and he is
authorized to express the satisfaction of the President with the terms in
which that recognition is clearly embodied in the treaty itself.

"It is true, as the high contracting i)arties assume, that the United
States have, on their part, claims to urge against Mexico. Upon due
consideration, however, the President is of opinion that it would be in-
expedient to seek satisfaction of their claims at this time through an act
of accession to the convention. Among the reasons for this decision
which the undersigned is authorized to assign, are, first, that the United
States, so far as it is practicable, prefer to adhere to a traditional policy
recommended to them by the Father of their Country and confirmed by a
happy experience, which forbids them from making alliances with for.
eign nations ; second, Mexico being a neighbor of the United States on
this continent, and possessing a system of government similar to our own
in many of it« important features, the United States habitually cherish
a decided good- will toward that Pepublic, and a lively interest in its se.
curity, prosperity, and welfare. Animated by these sentiments the
United States do not feel inclined to resort to forcible remedies for their
claims at the present moment, when the Government of Mexico is deeply
disturbed by factions within, and exposed to war with foreign nations.
And, of course, the same sentiments render them still more disin(;lined to
allied war against Mexico than to war to be waged against her by them-
selves alone.

314

CHAP. III.] MEXICO. [§ 58.

" The undersigned is farther authorized to state to the plenipoten-
tiaries, for the information of the sovereigns of Spain, France, and Great
Britain, that the United States are so earnestly anxious for the safety
and welfare of the Republic of Mexico, that they have already empowered
their minister residing there to enter into a treaty with the Mexican Re-
public, conceding to it some material aid and advantages which it is
hoped may enable that Republic to satisfy the just claims and demands
of the said sovereigns, and so avert the war which these sovereigns have
agreed among each other to levy against Mexico. The sovereigns need
not be informed that this proposal to Mexico has been made, not in hos-
tility to them, but with a knowledge of the proceeding formally commu-
nicated to them, and with the hojie that they might find, through the in-
creased ability of Mexico to result from the treaty, and her willingness
to treat with them upon just terms, a mode of averting the hostilities
which it is the object of the convention now under consideration to inaug-
urate. What has thus far been done by the American minister at Mex-
ico, under those instructions, has not yet become known to this Govern-
ment, and the information is looked for with deep interest.

" Should these negotiations ofter any sufiBcieut grounds on which to
justify a proposition to the high contracting parties in behalf of Mexico,
the undersigned will hasten to submit such a proijositiou to those pow-
ers. But it is to be understood, first, that Mexico shall have acceded to
such a treaty ; and secondly, that it shall be acceptable to the President
and Senate of the United States. •

" In the mean time the high contracting powers are informed that the
President deems it his duty that a naval force should remain in the Gulf
of Mexico, sufficient to look after the interests of American citizens in
Mexico during the conflict which may arise between the high contract-
ing parties and that Republic ; and that the American minister residing
in Mexico be authorized to seek such conference in Mexico with the be-
ligerent parties, as may guard each of them against inadvertent injury
to the just rights of the UnitedStates, if any such should be endangered.

" The undersigned having thus submitted all the views and senti-
ments of this Government on this important subject, to the high con-
tracting parties, in a spirit of peace and friendship, not only towards
Mexico but towards the high contracting parties themselves, feels as-
sured that there will be nothing in the watchfulness which it is thus
proposed to exercise, that can afford any cause for anxiety to any of the
parties in question."

Mr. Seward, Sec. of State, to Messrs. Tassara, Mcrcier and Lord Lyons, Dec.

4, 1861 ; MSS. Notes, Spain ; 52 British and Foreign State Papers, 394.
As to procedure of British and French Governments to enforce these claims, see

in/ra., ^iS 23-2. 318.

" The President, however, deems, it his duty to express to the allies,
in all candor and frankness, the opinion that no monarchical govern-
ment which could be founded in Mexico, in the presence of foreign navies

315

§ 58.] INTERVENTION. [CHAP. III.

and armies iu the waters and uj)on the soil of Mexico, would have any
prospect of security or permanence."

Mr. Seward, Sec. of State, to Mr. Adams, Mar. 3, I8(i2 ; MSS. Inst., Gr. Brit.

Mr. Seward's report of April 14, 1862, on the *• present condition of Mexico,"
with the accompanying^ correspondence, will l)c found in lloiise Ex. Doc.,
No. 100, 37th Cong., 2d sess. His report on the same subject, of Feb. 4, 1863
is in House Ex. Doc. No. M, 37th Cong., 3d sess ; same subject, report of
June 16, 1864, Senate Ex. Doc. No. 11, 38th Cong., 2d sess.; Sen. Ex. Doc.
No. 33, same sess. (See §^ 232, 318.)

" The undersigned, Secretary of State of the United States, has the
honor to acknowledge the reception of the note of his excellency Mr.
Romero, charg^ d'affaires of the Republic of Mexico, which bears the
date of December 20, and relates to the subject of the clearances of cer-
tain articles of merchandise at the city of iS^ew York, alleged by Mr.
Romero to have been made, on account of French subjects, for the use
of the French Government in its war with Mexico.

" In the note which the undersigned addressed to Mr. Romero on this
subject, on the loth December last, and also in an exposition of the
same subject which was made by the Secretary of the Treasury, and
which was submitted to Mr. Romero, it was explained that the clear-
ances of which he complains were made in conformity with the laws of
the United States, and with the practical construction of these laws
which has prevailed from the foundation of this Government, a period
which includes wars, more or less general, throughout the world, and
involving many states situated on the American and E uropean conti-
nents.

" The undersigned, after the most careful reading of Mr. Romero's
note, is unable to concede that the Government of the United States
has obliged itself to prohibit the exportation of mules and wagons, for
which it has no military need, from its ports on French account because,
being in a state of war and needing for the use of the Government all
the fire-arms made and found in the country, it has temporarily for-
bidden the export of such weapons to all nations.

"Xor is it perceived how the treaty between the United States and
Mexico, to which Mr. Romero refers, bears upon the question, since the
United States hav^e not set up or thought of setting up any claim that
IMexico shall be required to admit into her jiorts any articles of mer-
chandise, contraband of war, which may be exported from the United
States on French or any other account.

"The undersigned is equally unable to perceive the bearing of Mr.
Romero's allusions to the correspondence Avhich has occurred between
this Government and that of Great Britain, in which complaints have
been made by the United States that Great Britain wrongfully and iu-
iuriously recognized as a public belligerent an insurrectionary faction
which has arisen in this country ; has proclaimed neutrality between
that faction and this Government, and has suffered armed naval expe-
316

CHAP. III.] MEXICO. [§ 58.

ditious to be fitted out iu British ports to depredate on the commerce
of the United States, in violation of. as was believed, the Queen's proc-
lamation, and of the municipal laws of the United Kingdom."

Mr. Seward, Sec. of State, to Mr. Kotuero, Jan. 7, IHG'A ; MSS. Notes, Mex. ; Dip,
Corr., 1863.

"Candor obliges me to commence my observations upon the subject
with an acknowledgment of the very generous manner in which Mr.
Drouyn de I'Huys has opened the way to a disjiassionate and friendly
consideration of the complaint which he has preferred. He has not
only reassured you of the friendly spirit of the Emperor towards the
United States, but he has also, with marked decision and energy, reaf-
firmed to you that France has no purpose in Mexico beyond asserting
just claims against her, obtaining payment of the debt due, with the
expenses of the invasion, and vindicating by victory the honor of the
French flag, and that France does not mean to colonize in Mexico, or to
obtain Sonora or any other section permanently, and that all allegations
propagated through the newspapers conflicting with these assurances
are untrue.

" Your reply to these remarks of Mr. Drouyn de I'Huys, namely, that
in all my correspondence with you, whether public or private, I have
averred that this Government has no purpose to interfere in any way
with the war between France and Mexico, was as truthful as it was con-
siderate and proper. The United States have not difsclaimed, and can
never under existing circumstances disclaim, the interest *they. feel in
the safety, welfare, and prosperity of Mexico, any more than they can
relinquish or disown their sentiments of friendship and good- will to-
wards France, which began with their national existence, and have been
cherished with growing earnestness ever since. When the two nations
towards which they are thus inclined are found engaged in such a war
as Mr. Drouyn de I'Huys has described, the United States can only de-
plore the painful occurrence, and express iu every way and everywhere
their anxious desire that the conflict may be brought to a speedy close
by a settlement. consistent with the stability, prosperity, and welfare of
the parties concerned. The United States have always acted upon the
same principle of forbearance and neutrality in regard to wars between
powers with which our own country lias maintained friendly relations,
and they believe that this policy could not in this, more than in other
cases, be departed from with advantage to themselves or to the interests
of peace throughout the world."

ill-. Seward, Sec. of State, to Mr. Dayton, May 8, 1863 ; MSS. Inst., France ;
Dip. Corr., 1863.

" When France made war against Mexico, we asked of France explana-
tions other objects and purposes. She answered, that it was a war for
the redress of grievances; that she did not intend to permanently oc-
cupy or dominate iu Mexico, and that she should leave to the people of

317

§ 58.] INTERVENTION. [CHAP. III.

Mexico a free choice of institutions of government. Under these cir-
cuinstances the United States adopted, and they have since maintained,
entire neutrality between the belligerents, in harmony with the tradi-
tional policy in regard to foreign wars. The war has continued longer
than was anticipated. At different stages of it France has, in her in^
tercourse with us, renewed the explanations before mentioned. The
jFrench army has now captured Pueblo and the capital, while the Mexi-
can Government, with its principfil forces, is understood to have retired
to SaiuLuis Potosi, and. a provisional Government has been instituted

^mid^r Fyench auspices in the city of Mexico, which, being supported
.|)y; arms, divides the actual dominion of the country wnth the Mexican

.GrO-vernmeut, also maintained by armed power. That provisional Govern-
ment has neither made nor sought to make any communication to the
Government of the United States, nor has it been in any way recog-
nized by this Government. France has made no communication to the
United States concerning the provisional Government which has been
established in Mexico, nor has she announced any actual or intended
departure from the policy in r.egard to that country which her before-
mentioned explauatiofls have authorized us to expect her to pursue.
The United States have received no communications relating to the
recent military events in Mexico from the recognized Government of
that country.

" The Imperial Government of Austria has not explained to the United

•States thatiit has an interest in the subject, or expressed any desire to
know itheir views upon it. The United States have heretofore, on proper
occasions, frankly explained to every party having an interest in the
question the general views and sentiments which they have always en-
tertained, and still entertain, in regard to the interests of society and
government on this continent. Under these circumstances it is not
deemed necessary for the representatives of the United States, in foreign
countries, to engage in the political debates which the present unsettled
aspect of the war in Mexico has elicited. You will be promptly advised
if a necessity for any representations to the Government of Austria
shall arise."

Mr. Seward, Sec. of State, to Mr. Motley, Sept. 11, 1863; MSS. lust., Austria;
Dip. Corr., 1863. See further as to the attitude of Great Britain and the
United States as to the allied attack on Mexico, iitfra, $§ 232, 318.

" The French forces are understood to hold in subjection to the new
provisional Government establishedin Mexico three of the States, while
all the other constituent members of the Republic of Mexico still remain
under its authority. There are already indications of designs in those
States to seek aid in the United States, with the consent of this Gov-
ernment, if attainable, and without it if it shall be refused, and for this
purpose inducements are held out well calculated to excite sympathies
in a border population. The TTnited States (iovernment has hitheito
practiced strict neutrality between the French r.Tid Mexico, and all the
318

CHAP. III.] ' MEXICO. [§ 58.

more cheerfully because it has relied on the assurances given by the
French Government that it did not intend permanent occupation of that
country or any violence to the sovereignty of its people. The proceed-
ings of the French in Mexico are regarded by many in that country and
in this as at variance with those assurances. Owing to this circum-
stance, it becomes very difficult for this Government to enforce a rigid
observance of its neutrality laws. The President thinks it desirable
that you should seek an opportunity to mention these facts to Mr.
Drouyn de I'Huys, and to suggest to him that the interests of the
United States, and, as it seems to us, the interests of France herself,
require that a solution of the present complications in Mexico be made
as early as may be convenient upon the basis of the unity and inde-
pendence of Mexico. I cannot be misinterpreting the sentiments of the
United States in saying that they do not desire an annexation of
Mexico or any part of it, uor do they desire any sjiecial interest, con-
trol, or influence there, but they are deeply interested in the re estab-
lishment of unity, peace, and order in the neighboring Eepublic, and
exceedingly desirous that there may not arise out of the war in Mexico
any cause of alienation between them and France. Insomuch as these
sentiments are by no means ungenerous, the President unhesitatingly
believes that they are the sentiments of the Emperor himself in regard
to Mexico."

Mr. Seward, Sec. of State, to Mr. Dayton, Sept. 21, 1863; MSS. Inst., France;
Dip. Corr., 1863. •

^' Your interesting dispatch of September 1 (No. 32) has been re-
ceived. The United States are not indifl'erent to the events which are
occurring in Mexico. They are regarded, however, as incidents of the
war between France and Mexico. While the Governments of those
two countries are not improperly left in any uncertainty about the senti-
ments of the United States, the reported relations of a member of the
imperial fiimily of Austria to those events do not seem sufficientto justify
this Government in making any representations on that subject to the
Government of the Emperor. His candor and fairness towards the
United States warrant the President in believing, as he firmly does,
that His Majesty will not suffer his Government to be engaged in any
proceeding hostile or injurious to the United States."

Mr. Seward, Sec. of State, to Mr. Motley, Sept. 26, 1863; MSS. Just., Austria;
Dip. Corr., 1863.

" It is well understood that through a long period, closing in 1860,
the manifest strength of this nation was a sutlicient protection, for itself
and for Mexico, against all foreign states. That power was broken down
and shattered in 18G1 by faction. The first fruit of our civil war was
a new, and in effect, though not intentionally so, an unfriendly attitude
assumed by Great Britain, France, and Spain, all virtually, and the two
first-named powei's avowedly, moving in concert. While I cannot cou-

319

§ 58.] INTERVENTION. [cHAP. III.

fess a fear on the part of this Government that any one or all of the mari-
time powers combining with the insurgents could overthrow it, yet it
would have been manifestly presumptuous, at any time since this dis-
traction seized the American people, to have provoked such an inter-
vention, or to have spared any allowable means of preventing it. The
unceasing eflForts of this Department in that direction have resulted
from this ever-present consideration. If in its communications the
mujestic efforts of the Governineut to subdue the insurrection, and to
remove the temptation which it offered to foreign powers, have not fig-
ured so largely as to impress my correspondents with the conviction
that the President relies always mainly on the national power, and not
on the forbearance of those Avho it is apprehended may become its ene-
mies, it is because the duty of drawing forth and directing the armed
power of the nation has rested upon distinct Departments, while to this
one belonged the especial duty of holding watch against foreign insult,
intrusion, and intervention. With these general remarks I proceed to
explain the President's views in regard to the first of the two questions
mentioned, namely, the attitude of France in regard to the civil war
in the United States.

" We know from many soui-ces, and even from the Emperor's direct
statement, that, on the breaking out of the insurrection, he adopted the
current opinion of European statesmen that the eflbrts of this Govern-
ment to maintain and jjreserve the Union would be unsuccessful. To
this prejudgment we attribute his agreement with Great Britain to act
in concert with her upon the questions which might arise out of the in
surrectioi! ; his concession of a belligerent character to the insurgents ;
kis repejued suggestions of accommodation by this Government with
the insurgents ; and his conferences on the subject of a recognition. It
would be disingenuous to withhold an expression of the national convic-
tion that these x)roceedings of the Emperor have been very injurious to the
ITnited States, by encouraging and thus prolonging the insurrection. On
the other hand, no statesman of this country is able to conceive of a
reasonable motive, on the part of either France or the Emperor, to do
or to wish injury to the United States. Every statesman of the United
States cherishes a lively interest in the welfare and greatness of France,
and is content that she shall enjoy peacefully and in unbounded pros
perity the administration, of the Emperor she has chosen. We have
not an acre of territory or a port which we think France can wisely
covet; nor has she any possession that we could accept if she would
resign it into our hands. Nevertheless, when recurring to what the
Emperor has already done, we cannot, at any time, feel assured that,
under mistaken impressions of our exposure, he might not commit him-
self still further in the way of encouragement and aid to the insurgents.
We know their intrigues in Paris are not to be lightly regarded. While
the Emperor has held an unfavorable oi)inion of our national strength
and unity, we, on the cont'ary, have as constantly indulged entire coufi-
320

CHAP. UlTf MEXICO. [^ 58.

<leiic(' ill Ijolli. Kot iiR'ivly tlie course of events, but that of time, also,
ruus against the insurgents and reinvigorates the national strength and
power. We desire, therefore, that he may have the means of niidei-
standiug the actual condition of affairs in our country. We wish to
avoid anything calculated to irritate France, or to wound the just pride
and proper sensibilities of that spirited nation, and thus to free our
claim to her forbearance, in our present political emergency, from any
cloud of passion or prejudice. Pursuing this course, the President
hopes that the prejudgment of the Emperor against the stability of the
Union may the sooner give way to convictions which will modify his
course, and bring liiin back again to the traditional friendship which
he found existing between this country and his own, when, in obedience
to her voice, he assumed the reins of empire. These desires and pur
poses do not imply either a fear of French hostility, or any neglect of
a prudent posture of national self-reliance.

" The subject upon which I propose to remark, in the second place,
is the relation of France toward Mexico. The United States hold, in
regard to Mexico, the same principles tha1> they hold in regard to all
other nations. They have neither a right nor a disposition to inter-
vene by force in the internal affairs of Mexico, whether to establish and
maintain a Republic or even a domestic government there, or to over-
throw an imperial or a foreign one, if Mexico chooses to establish or
accept it. The United States have neither the right nor the disposition
to intervene by force on either side in the lamentable war which is going
on between France and Mexico. On the contrary, they practice in re-
gard to Mexico, in every phase of that war, the non-intervention ^'hich
they require all foreign powers to observe in regard to the United States.
But, notwithstanding this self-restraint, this Government knows full
well that the inherent normal opinion of Mexico favors a government
there republican in form and domestic in its organization, in preference
to any monarchical institutions to be imposed from abroad. This Gov-
ernment knows, al8«, that this normal opinion of the people of Mexico
resulted largely from thie influence of popular opinion in this country,
and is continually invigorated by it. The President believes, moreover,
that this popular opinion of the United States is just in itself, and emi-
nently essential to the progress of civilization on the American conti-
nent, which civilization, it believes, can and will, if left free from Euro-
pean resistance, work harmoniously together with advancing refinement
on the other continents. This Government believes that foreign resist
ance, or attempts to control American civilization, must and will fail
before the ceaseless and ever-increasing activity of material, moral, an<l
political forces, which peculiarly belong to the American continent.
Nor do the United States deny that, in their opinion, their own safety
and the cheerful destiny to which they aspire are intimately dependent
on the continuance of free republican institutions throughout America.
They have submitted these opinions to the Emperor of France, on proper

Q01

S. Mis. 162— VOL. I 21

§58.] TNTERVENTTON. [CHAP. III.

occasions, as woi-thy of his serious consideration, in determining' how he
would conduct and close what might prove a successful war iu Mexico.
jSTor is it necessary to practice reserve upon the point, that if France
should, ui)on due consideration, determine to adopt a policy in Mexico
adverse to the American opinions and sentiments which I have described,
that policy would ])robal)ly scatter seeds which would be fruitful of
jealousies, which might ultimately ripen into collision between France
and the United States and other American Eepublics. An illustration
of this danger has o(;curred already. Political rumor, which is always
mischievous, one day ascribes ro France a ])urpose to seize the Rio
Grande, and wrest Texas from the United States ; another day rumor
advises us to look carefully to our safety on the Mississippi ; another
day we are warned of coalitions to be formed, under French patronage,
between the regency established in Mexico and the insurgent cabal at
Richmond. The President apprehends none of these things. He does
not allow himself to be disturl)ed by suspicions so unjust to France and
so unjustifiable in themselves ; but he knows, also, that such suspicions
will be entertained more or' less extensively by this country, and mag-
nified in other countries equally unfriendly to France and to America ;
and he knows, also, that it is out of such suspicions that the fatal web
of national animosity is most frequently woven. He believes that the
Emperor of France must experience desires as earnest as our own for
the preservation of that friendship between the two nations which is so
full of guarantees of their common prosperity and safety. Thinking
this, the President would be wanting in fidelity to France, as well as to
our own country, if he did not converse with the Emperor with entire
sincerity and friendship upon the attitude which France is to assume in
regard to Mexico. The statements made to you by M. Drouyn de I'Huys,
concerning the Emperor's intentions, are entirely satisfactoiy, if we are
permitted to assume them as having been authorized to bo made by the
Emperor in view of the present condition of affairs in Mexico. It is
true, as I have before remarked, that the Emperor's purposes may here-
after change with changing circumstances. We, ourselves, however,
are not unobservant of the progress of events at home and abroad ; and
in no case are we likely to neglect such provision for our own safety as
every sovereign state must always be prepared to fall back upon when
nations with which they have lived in friendship cease to respect their
moral and treaty obligations. Your own discretion will be your guide
as to how far and in what way the public interests will be promoted by
submitting these views to the consideration of M. Drouyn de PHuys."

Mr. Seward, Sec. of State, to Mr. Daytou, Sept. '26, 1863; MSS. Inst., France;
Dip. Corr., 1863.

" You have proceeded very properly in giving to Count Rechberg a
copy of my dispatch to Mr. Dayton of the 3d of March, 1862. This
Government desires to practice no concealment in its intercourse with
322

CHAP. III.] MEXICO. [§ 58.

foreign states. During the discussion concerning Mexico, and France,
and the United States, which has been going on in Europe, I have
refrained from instructing you to speak for the United States. This
reserve has been pra(;ticed because the questions immediately concern
only the three states mentioned, and the personal relation to them of
the Austrian grand duke is an incident which could only bring the Im-
])erial Royal Government under any responsibility to the United States
when that Government should attempt or propose to violate some act-
ual political right or disregard some practical interest which it would
be the duty of the President to maintain or assert. But in this course
of proceeding it has not been my intention to deny to you a full knowl-
edge of the position of the President in regard to the questions debated.
France is at war with Mexico and at peace with the United States, and
a civil war is raging in the United States. I am to speak of the atti-
tude of France towards the United States in relation to this civil war,
and also to speak of the attitude of France towards Mexico, as it bears
on the United States. For the sake of perspicuity I keep the two topics
distinctly separate, and I treat the last one itirst.

" We know from many sources, and even from the direct statement
of the Emperor of France, that on the breaking out of the insurrection
he adopted the then current opinion of European statesmen that the
eiforts of this Government to suppress it would be unsuccessful. To
this prejudgment we attribute his agreement with Great Britain to act
in concert with her upon international questions which might arise out
of the conflict, his practical concession of a belligerent character to the
insurgents, his repeated suggestions of accommodations by this Gov-
ernment with the insurgents, and his conferences on the subject of a
recognition. These proceedings of the Emperor of France have been
very injurious to the United States by encouraging and thus prolong-
ing the insurrection. On the other hand, no statesman of this country
is able to conceive of a reasonable motive on the part of France or the
Emperor to do or to wish injury to the United States. Every states-
man in the United States cherishes a lively interest in the welfare and
greatness of France, and is content that she shall peacefully and in
unbounded prosperity enjoy the administration of the Emperor she has
chosen. We have not an acre of territory nor a fort which we think
France could wisely covet, nor has she any possession that we could
accept if she would resign it into our hands, ^'evertbeless, when re-
curring to what the Emperor of France has already done, we cannot
at any time feel assured that, under mistaken imi)ressions of our em-
barrassments in consequence of a lamentable civil war, he may not go
further in the way of encouragement to the insurgents, whose intrigues
in Paris we understand and do not underestimate. While the Emperor
of France has held an unfavorable oi>inion of our national strength
and unity, we, on the contrary, have as constantly indulged an entire
confidence in both. Not merelj^ the course of events, but that of time

323

§ 58.] INTERVENTIOX. [CHAP. III.

also opposes the insurrection aud reiuvigorates the national stren^^th
and power. Under these convictions we avoid everything- calculated
to irritate France l\v wounding the just pride and proper sensibilities
of that s{)irited nation, and thus we hope to free our claim to her just
forbearance in our })reseut political emergency from any cloud of pas-
sion or prejudice. Pursuing this course, the President hopes that tLe
prejudgment of the Emperor against the stability of the Union may
give way to considerations which will modify his course and bring him
back to the traditional friendship which he found existing between tliis
country and his own when, in obedience to her voice, he assumed the
administration of her Government. These desires and purposes of ours
do not imply either a fear of imperial hostility or any neglect of a pru.
dent posture of national self-reliance, and in that posture we constantly
aim to stand.

" I speak next of the relation of France towards Mexico. Until 1860
our prestige was a protection to her and to all other republican states
on this continent. That prestige has been temporarily broken up by
domestic faction and civil war. France has invaded Mexico, and war
exists between those two countries. The United States hold, in regard
to these two states and their conflict, the same principle that they hold
in relation to all other nations and their mutual wars. They have
neither a right nor any disposition to intervene by force in the internal
affairs of Mexico, whether to establish or to maintain a republican or
even a domestic Government there, or to overthrow an imperial or a for-
eign one if Mexico shall choose to establish or accept it. The United
States have not a right nor a disposition to intervene by force on either
side in the lamentable war which is going on between France and
Mexico. On the contrary, they practice, in regard to Mexico, in every
phase of the war, the non-intervention w'hich they require all foreign
powers to observe in regard to the United States. But notwithstand-
ing this self-restraint, this Government knows full well that the inher-
ent normal opinion of Mexico favors a Government there republican
in form and democratic in its organization in preference to any mon-
archical institutions to be imposed from abroad. This Government
knows also that this normal opinion of the people of Mexico resulted
largely from the influence of popular oi)inion in this country, which
constantly invigorates it. The President, moreover, believes that this
popular opinion of the United States is just in itself and eminently
essential to the progress of civilization on the American continent,
which civilization he believes can and will, if left free from European
resistance, work harmoniously together with advancing refinement on
the other continents. This Government believes that all foreign resist-
ance to American civilization, and all attempts to control it, must and
will fail before the ceaseless aud ever-increasing activity of material,
moral, and political forces which peculiarly belong to the American con-
324

CHAP. III.] MEXICO. [§ 58.

tiiieut. ^ov do the United States deny that, in their opinion, their own
safety and tlie cheerful destiny to which they aspire are intimately de-
pendent on the continuance of free republican institutions throughout
America, and that their i)olicy will always be directed to that end.
They have frankly, and on proper occasions, submitted these opinions
to the Emperor of France, as worthy of serious consideration, in deter-
mining how he would conduct and close what might i)rove a successful
war in Mexico. Nor do we ]>ractice reserve upon the point that if
France should, upon due consideration, determine to adopt a policy in
Mexico adverse to the American opinions and sentiments which I have
described, that policy would probably scatter seeds which would be
fruitful of jealousies that might ultimately ripen into collisions between
France and the United States and other American Eepublics. An illus-
tration of this danger has occurred already. Political rumor, which is
always suspicious, one day ascribes to France a purpose to seize the
Eio Grande and wrest Texas from the United States. Another day
rumor sidvises us to look carefullj- to our safety on the Mississippi.
Another day we are warned of coalitions to be formed under French
patronage between the regency that has been recently set up at the
city of Mexico and the insurgent cabal at Richmond. The President
apprehends none of these things, and does not allow himself to be dis-
turbed by suspicious. But he knows also that such suspicions will be
entertained more or less extensively in this country, and will be mag-
nified in other countries, and he knows also that it is out of such sus-
picions that the fatal web of national animosity is most frequently
woven. The President, upon the assurances which he has received
from the Emi)eror of France, expects that he will neither deprive the
people of Mexico of their free choice of government nor seek to main-
tain any permanent occupation or dominion there.

" It is true that the purposes or policy of the Emperor of France, in
these respects, may change with changing circumstances. Although
we are confiding, we are not therefore unobservant, and in no case are
we likely to neglect such provision for our own safety as every people
must always be prepared to fall back upon when a nation with which
they have lived in friendship ceases to respect its moral and treaty
obligations.

"In giving you this summary of our positions, I have simply drawn
off from the records the instructions under which Mr. Dayton is acting
at Paris. 1 r<Mnaiu of the opinion that national dignity is best con-
served by confining the discussion of these affairs to the Cabinets of
the United States, France, and Mexico, and that no public interest is
to be advanced by opening it at Vienna, and therefore I do not direct
you to communicate this dispatch to the imperial royal court."

Mr. Sowi^nl, Sec. of .State, to Mr. Motley, Oct. 9, 1863; MSS. Inst., Austria;
Dip. Corr., 18d;}.

325

§ 58.] INTERVENTION. [CHAP. III.

" I have the honor to acknowledge the reception of your dispatch of
the 9th instant (No. 361), which brings me the views expressed by Mr.
Dronyn de I'Huys concerning the situation in Mexico. Various consid-
erations have induced the President to avoid taking any part in the
speculative debates bearing on that situation which have been carried
on in the capitals of Europe as well as in those of America. A deter-
mination to err on the side of strict neutrality, if we err at all, in a war
which is carried on between two nations with which the United States
are maintaining relations of amity and friendship, was prominent among
the considerations to which I have thus referred.

" The United States, nevertheless, when invited by France or Mexico,
cannot omit to express themselves with perfect frankness upon new in-
cidents, as they occur, in the progress of that war. Mr. Drou^^n de
I'Huys now speaks of an election which he expects to be held in Mex-
ico, and to result in the choice of His Imperial Highness the Prince
Maximilian of Austria to be Emperor of Mexico. We learn from other
sources that the prince has declared his willingness to accept an imperial
throne in Mexico on three conditions, namely : First, that he shall be
called to it by the universal suffrage of the Mexican nation ; secondly,
that he shall receive indispensable guarantees for the integrity and in-
dependence of the proposed Empire ; and, thirdly, that the head of his
family, the Emperor of Austria, shall acquiesce.

"Eeferring to these facts, Mr. Drouyn de I'Huys intimates that an
early acknowledginent of the proposed Empire by the United States
would be convenient to France, by relieving her, sooner than might be
possible under other circumstances, from her troublesome complications
in Mexico.

" Happily the French Government has uot been left uninformed that,
in the opinion of the United States, the permanent establishment of a
foreign and monarchical government in Mexico will be found neither
easy nor desirable. You will inform Mr. Dronyn de I'Huys that this
opinion remains unchanged. On the other hand, the United States
cannot aiiticii)ate the action of the people of Mexico, nor have they the
least purpose or desire to interfere with their proceedings, or control or
interfere with their free choice, or disturb them in the enjoyment of
whatever institutions of government they may, in the exercise of an ab-
solute freedom, establish. It is proper, also, that Mr. Drouyn de I'Huys
should be informed that the United States continue to regard Mexico
as the theater of a war which has not yet ended in the subversion of the
Government long existing there, with which the United States remain
in the relation of peace and sincere friendship ; and that, for this rea-
son, the United States are not now at liberty to consider the question
of recognizing a Government which, in the further chances of war, may
come into its i)lace. The United States, consistently with their principles,
can do no otherwise than leave the destinies of Mexico in the keeping
of her own people, and recognize their sovereignty and independence in
326

CHAP. III.] MEXICO. [§ 58.

whatever form they themselves shall choose that this sovereignty and
independence shall be manifested."

Mr. Seward, Sec. of State, to Mr. Dayton, Oct. 23, 1863; MSS. Inst., France?
Dip. Corr., 1863.

On April 4, 18(54, it was resolved without dissent, by the House of
Kepresentatives, that " the Cong^ress of the United States are unwilling
by silence to have the nations of the world under the impression that
they aie indifferent spectators of the deplorable events now transpiring
in the Eepublic of Mexico, and that they think fit to declare that it does
not accord with the policy of the United States to acknowledge any
monarchical government erected on the ruins of any republican govern-
ment in America under the auspices of any European power."

As to etiect of this resolution in France, see Tuckei-'s Monroe Doct., 103.

Mr. Seward's report of May 28, 1864, as to the course of trade between the United

States and France during the French and Mexican war, is given in Senate

Ex. Doc. No. 49, 38th Cong., 1st sess.
As to neutrality observed between the belligerents, see Mr. Seward, Sec. of

State to Mr. de Montholon, Nov. 10, 1865 ; MSS. Notes, France.
Mr. Seward's policy of non-intervention in the Maximilian war in Mexico is

vindicated in 103 N. Am. Rev., 498, Oct., 1866.

" We recognize the right of sovereign nations to carry on war with
each other if they do not invade our right, or menace our safety or just
influence. The real cause of our national discontent is that the French
army which is now in Mexico is invading a domestic republican gov-
ernment there, which was established by her jieople, and with whom
the United States sympathize most profoundly, for the avowed purpose
of suppressing it, and establishing upon its ruins a foreign monarchical
government, whoso presence there, so long as it should endure, could
not but be regarded by the people of the United States as injurious and
menacing to their own chosen and endeared republican institutions."

Mr. Seward, Sec. of State, ti> Mr. ili- Montholon, Dec. 6, ISCiT) ; MSS. Notes,
France.

" It has been the President's purpose that France should be respect-
fully informed upon two points, namely; first, that the United States
earnestly desire to ('ontinuc and to cultivate sincere friendship with
France; secondly, that this policy would be brought into imminent
jeopardy unless France could deetii it (consistent with her interest and
honor to desist from the prosecution of armed intervention in Mexico
to overthrow the domestic republican government existing there, and
to establish upon its ruins the foreign monarchy which has been at-
tempted to be inaugurated in the capital of that country."

Mr. Seward, Sec. of State, to Mr. Bigelow, Dec. 16, 1S65; MSS. Inst., France.
See further, same to same, July 13, 1865.
On this subject see Tucker's Monroe Doct., 97 jf.

As to French occupation of Mexico, see Mr. Seward's report uf Dec. 21, 1865,

with documents annexed; Sen. Ex. Doc. Nos. 5, (i, 39th Cong., 1st sess. As to

French evacuation of Mexico, see House Ex Doc. No. 93, 39tli Cong., Ist sess.

For President's message on Mexican aftairs, with documents, see House Ex.

Doc. No. 20, 30th Cong.. 1st sess.

327

§ 58. J INTERVENTION. [CHAP. III.

" With tlu\st' explanations [ proceed to say that, in the opinion of
the President, Fiance need not for a moment delay her promised with-
drawal of military forces from Mexico, and her putting the principle of
non-intervention into fall and complete practice in regard to Mexico,
through any apprehension that the United States will i)rove unfaithful
to the principles and policy in that respect, which, on their behalf, it has
been my duty to maintain in this now very lengthened correspondence.
The practice of this Government, from its beginning, is a guarantee to
all nations of the respect of the American people for the free sovereignty
of the people in every other state."

Mr. Seward, Sec. of State, to Mr. cle Moutholou, Feb. 12, 1860 ; MSS. Notes,

France.
For vindication of the policy of the United States towards Maximilian and the

French invasion of Mexico in 1863-'6, see Mr. Seward, Sec. of State, to Mr.

de Montholon, Ap. 25, 1866 ; MSS. Notes, France.

The United States, it was said by Mr. Seward, in a letter of March

19, 1866, to Mr. Motley (Austria), "cannot regard with unconcern" the

enlistment in Paris of troops to aid the Emperor Maximilian in Mexico.

See also Mr. Seward, Sec. of State, to Mr. Motley, March 19, 1866; MSS. Inst.,

Austria.
Mr. Seward's report on Mexico, of March 20, 1866, is in House Ex. Doc. No. 73,
39th Cong., 1st sess.

On April 6, 1866, Mr. Motley was instructed by Mr. Seward, to state to
the Austrian Government " that in the event of hostilities being carried
on hereafter in Mexico by Austrian subjects, under the command or with
the sanction of the Government of Vienna, the United States will feel them-
selves at liberty to regard those hostilities as constituting a state of war
by Austria against the Eepublic of Mexico; and in regard to such war,
waged at this time and under existing circumstances, the United States
could not engage to remain as silent and neutral spectators."

See also Mr. Seward to Mr. Motley, Ap. 16, 1866, and also confidential letter of
same date, in which Mr. Motley was instructed to withdraw from Vienna
in case troops were sent from Austria to Mexico. The result was that no
troops were sent from Austria to Mexico. See Mr. Seward to Mr. Motley,
June 9, 1866 ; MSS. Inst., Austria.

" You are aware that a friendly and explicit arrangement exists be-
tween this Government and the Emperor of France, to the effect that
he will withdraw his expeditionary military forces from Mexico in three
])arts ; the first of which shall leave Mexico in November next, the sec-
ond in March next, and the third in iSTovember, 1867, and that upon the
evacuation being thus completed, the French Government will imme-
diately come upon the ground of nonintervention in regard to Mexico
which is held by the United States.

" Doubts have been entertained and expressed in some quarters ujmn
the question whether the French Government will faithfully execute
this agreement. Xo such doubts have been entertained by the Presi-
328

CHAP. III.] MEXICO. [§ 58.

(lent, who has had repeated and even recent assurances that the coni-
])lete evacuation of Mexico by the French will be consummated at the
periods mentioned, or earlier if compatible with climatical, military, and
other conditions."

Mr. Seward, Sec. of State, to Mr. Campbell, Oct. 25, 1866; MSS. lust., Mex.

As to attempts of Santa Anna and Ortego in 1866 to overthrow Mexican Gov-
ernment, see Mr. Seward's Rep., Dec. 14, 1866; House Ex. Doc. No. 17,
39th Cong., 2d sess.

As to proceedings in Mexico under French occupation, see Mr. Seward's report,
Jan. 29, 1867 ; House Ex. Doc. No. 76, .39th Cong., 2d sess.

As to subsequent proceedings in Mexico, see Senate Ex. Doc. No. 20, 40th Cong.,
Ist sess.; House Ex. Doc. No. 30, 40th Cong., 1st sess. ; House Ex. Doc. No.
31, ibid.

"The revolution which recently occurred in Mexico was followed by
the accession of the successful party to power and the installation of
its chief. General Porfirio Diaz, in the Presidential oflBce. It has been
the custom of the United States, when such changes of Government
have heretofore occurred in Mexico, to recognize and enter into official
relations with the de facto Government as soon as it should appear to
have the approval of the Mexican people, and should manifest a dispo-
sition to adhere to the obligations of treaties and international friend-
ship. Ju the present case such official recognition has been deferred by
the occurrences on the Rio Grande border, the records of which have
been already communicated to each house of Congress, in answer to
their respective resolutions of inquiry. Assurances have been received
that the authorities at the seat of the Mexican Government have both
the disposition and the ])ower to prevent and punish such unlawful in-
vasions and depredations. It is earnestly to be hoped that events may
prove these assurances to be well founded. The best interests of both
countries require the maintenance of peace upon the border, and the
development of commerce between the two Republics. (See infra, § 70.)

"It is gratifying to add that this temporary interruption of official
relations has not prevented due attention by the representatives of the
United States in Mexico to the protection of American citizens, so far
as i)racticable. Xor has it interfered with the prompt payment of the
amounts due from Mexico to the United States under the treaty of July
4, 1868, and the awards of the joint commission. While I do not an-
ticipate an interruption of friendly relations with Mexico, yet I cnnnot
but look with some solicitude upon a continuance of border disorders
as exposing the two countries to initiations of popular feeling and mis-
chances of action which are naturally unfavorable to complete amity.
Firmly determined that nothing shall be wanting on my part to ])ro-
mote a good understanding between the two nations, I yet must ask
the attention of Congress to the actual occuirences on the border, that
the lives and property of our citizens may be adequately protected and
peace preserved."

President Hayes, First Annual Message, 1877.

329

§ 58.] INTERVENTION. [CHAP. III.

"Since the resumption of diplomatic relations with Mexico, corre-
spondence has been opened, and still continues, between the two Govern-
ments upon the various questions which at one time seemed to endanger
their relations. While no formal agreement has been reached as to the
troubles on the border, much has been done to repress and diminish
them. The effective force of United States troops on the Rio Grande,
by a strict and faithful compliance with instructions, has done much to
remove the sources of dispute, and it is now understood that a like force
of Mexican troops on the other side of the river is also making an
energetic movement against the marauding Indian tribes. This Gov-
ernment looks with the greatest satisfaction upon every evidence of
strength in the national authority of Mexico, and upon every effort put
forth to prevent or to punish incursions upon our territory. Reluctant
to assume any action or attitude in the control of these incursions, by
military movements across the border, not imperatively demanded for the
protection of the lives and property of our own citizens, I shall take the
earliest opportunity, consistent with the proper discharge of this plain
duty, to recognize the ability of the Mexican Government to restrain
effectively violations of our territory. It is proposed to hold next year
an international exhibition in Mexico, and it is believed that the dis-
play of the agricultural and manufacturing products of the two nations
will tend to better understanding and increased commercial intercourse
between their people."

President Hayes, Second Annual Message, 1878.

" As the relations between the Government of the United States
and that of Mexico happily grow more amicable and intimate, it is but
natural that a disposition should in like manner develop itself between
the citizens of the respective countries to seek new means of fostering
their material interests, and that the ties which spring from commercial
interchange should tend to grow and strengthen with the growing and
strengthening spirit of good-will which animates both peoples. That
this spirit exists is one of the most evident proofs that the frank and
conciliatory policy of the United States towards Mexico has borne and
is bearing good fruit. It is especially visible in the rapidly extending
desire on the part of the citizens of this country to take an active share
in the prosecution of those industrial enterprises for which the magnifi-
cent resources of Mexico offer so broad and promising a field, and in the
responsive and increasing disposition which is manifest on the part ot
the Mexican people to welcome such projects. iSTo fact in the historical
relations of the two great Republics of the northern continent is more
fraught with happy promises for both, and it is a source of especial grati-
fication to this Government that the jealousies and distrusts which have
at times in the past clouded the perfect course of the mutual relations
of the two Goveruments are thus yielding to the voore vvholesoin".' sjiirit
of reciprocal frankness and confidence
330

CHAP. III.] MEXICO. [§ 58.

*• It seems to me proper at this time, v^heii a new Administratiou has
constitutionally and peaceliilly come into power in Mexico, devoted to
fuUilling and extending the just policy of its predecessor, to call your
attention to those general precepts which, in the judgment of the Presi-
dent, should govern the relations between the two Republics, and to
bear testimony to which will be your most important duty as the diplo-
matic representative of the United States.

"The record of the last fifteen years must have lenjoved from the
minds of the enlightened statesmen of Mexico any possibly lingering
doubt touching the policy of the United States toward her sister Re-
l)ul)lic. That policy is one of faithful and impartial recognition of the
independence and the integrity of the Mexican nation. At this late
day it needs no disclaimer on our part of the existence of even the
faintest desire in the United States for territorial extension south of the
Rio Grande. The boundaries of the two Republics have been long set-
tled in conformity with the best jurisdictional interests of both. The
line of demarkation is not conventional merely. It is more than that.
It separates a Spanish- American i)eople from a Saxon- American people.
It divides one great nation from another with distinct and natural
finality. The increasing prosperity of both comnionwealths can only
draw into closer union the friendly feeling, the i)olitical sympathy, and
the correlated interests which their history and neighborhood have
created and encouraged. In all your intercourse with the Mexican
Government and people it must be your chiefest endeavor correctly to
reflect this firm conviction of your Government.

" It has been the fortunate lot of this country that long years of peace
and prosperity — of constant devotion to the arts and industries which
make the true greatness of a nation — have given to the United States
an abundance of skilled labor, a wealth of active and competent enter-
prise, and a large accumulation of capital, for which even its own vast
resources fail to give full scope ibr the untiring energy of its citizens.
It is but natural, therefore, that a part of this great store of national
vitality should seek the channels which are offered by the wonderful and
scarcely developed resources of oNTexico, and that American enterprise
and capital should tend to fin<l their just employment in building up
the internal prosperity of that Repul)lic on like firm bases, and in open-
ing new commercial relationship between the two cou'.itries.

" It is a source of profound gratification to the Government of the
United States that the political condition of Mexico is so apparently
and assuredly in the path of stability, and the administration of its
constitutional (xovernment so regular, that it can otter to foreign capital
that just and certain protection without which the prospect even of ex-
travagant profit will fail to tempt the extension of safe and enduring
commercial and industrial enterprise. It is still more gratifying that
with a full comprehension of the great political and social advantages
of such a mode of developing the material resources of the country, the

331

§ 58.] INTERVENTION. [CHAP. III.

Government of Mexico cordially lends its influence to the spirit of wel-
come and encouragement with which the Mexican people seem disposed
to greet the importation of wealth and enterprise in their midst. The
progress now making in this direction by the National Government of
Mexico is but an earnest of tlie great good which may be accomplished
when the intimate and necessary relations of the two countries and peo-
ples are better understood than now. To conduce to this better under-
standing must be your constant labor. While, therefore, carefully
avoiding all appearance of advocacy of any individual undertaking
which citizens of the United States may desire to initiate in Mexico,
you will take every opportunity which you may deem judicious to make
clear the spirit and motive which control this movement in the direction
of developing Mexican resources, and will impress upon the Government
of Mexico the earnest wish and hope felt by the people and Government
of this country that these resources may be multiplied and rendered
fruitful for the primary benefit of the Mexican people themselves ; that
the forms of orderly, constitutional, and stable government may be
strengthened as domestic wealth increases and as the conservative
spirit of widely distributed and permanent vested interests is more and
more felt ; that the administration of the Mexican finances, fostered by
these healthful tendencies, may be placed on a firm basis ; that the
rich sections of the great territory of the Republic may be brought into
closer intercommunication; in a word, that Mexico may quickly and
beneficially attain the place toward which she is so manifestly tending
as one of the most powerful, well-ordered, and j^rosperous states in the
harmonious system of western Eepublics.

" In future dispatches more detaik^d instructions will be given you
toucliing certain points of interest to the two Governments in the direc-
tion of an enlarged reciprocal trade and interchange of commodities.
It is my present design simply to acquaint you with the President's
views and feeling toward Mexico and the spirit which will animate his
policy."

Mr. Blaine, Sec. of State, to Mr. Morgan, June 1, 1881 ; MSS. Inst., Mex. ; For.
Rel., 1881.

" I had hardly completed my instruction to you of the 16th instant,
2S^o. 138, when information reached me from the United States minister
at the Guatemalan capital, placing in a still graver light the condition
of the relations between Mexico and Guatemala, touching the possession
of the territory of Soconusco. In fact, so serious is the apprehension
caused in the niitul of the President by these untoward reports, that I
feel constrained to supplement my previous instructions to you on the
subject with even more of energy and succinctness.

" It appears now as though the movement on the part of Mexico was
not merely to obtain i)ossession of the disputed territory, but to precip-
itate hostilities with Guatemala, with the ultimate view of extending
332

CHAP. III.] MEXICO. [§ 58.

lier borders by actual conquest, fiarge botlicH of Mexican troops are
said to be on their way to Socoiiusco, and the exigency is reported to
be so alarming- that plans for luitional defeuse are n])perino8t in tlie
minds of President Barrios and his advisers. Frequent border raids
into Guatemalan territory have inflamed the passions of the residents
of the frontier country, and the imminence of a collision is very great.
Of the possible consequence of war it may be premature to speak, but
the information possessed by the Department intimates the j)robable
extension of hostilities to the other Central American states and their
eventual absorption into the Mexican federal system.

"I cannot believe it possible that these designs can seriously enter into
the policy of the Mexican Government. Of late years the American
movement toward fixity of boundaries and abstention from territorial
enlargement has been so marked, and so necessarily a part of the con-
tinental policy of the American Eepublics, that any departure there-
from becomes necessarily a menace to the interests of all.

" This is a matter touching which the now established policy of the
Government of the United States to refrain from territorial acquisition
gives it the right to use its friendly oifices in discouragement of any
movement on the part of neighboring States which may tend to dis-
turb the balance of power between them. More than this, the mainte-
nance of this honorable attitude of example involves to a large extent a
moral obligation on our part, as the strong but disinterested friend of
all our sister states, to exert our influence for the preservation of the
national life and integritj' of any one of them against aggression,
whether this may come from abroad or from another American Republic.

" No state in the American system has more unequivocally condemned
the forcible extension of domain, at the expense of a weaker neighbor,
than Mexico herself; and no state more heartily concurs in the con-
demnation of fiiibusterism in every form than the United States. It is
clearly to the mutual interest of the two countries, to whose example
the success of republican institutions on this contfnent is largely due,
that their policy in this regard should be identical and unmistakable.

"As long as the broadened international diplomacy of our day aifords
peaceable recourse to principles of equity and justice in settlement of
controversies like that between Mexico and Guatemala, the outbreak
of a war between them would, in the judgment of the President, involve
much farther-reaching results than the mere transitory disturbance of
the entente cordiale so much desired by the United States Government
between all the American Republics. Besides the transfers of territory
which might follow as enforced compensation for the costs of a war, it
is easy to foresee the serious complications and consequent dangers to
the American system, should an opening be alibrded to foreign powers
to throw their influence or force into the scale in determination of the
contest. Mexico herself has but too recently recovered from the effects
of such a foreign constraint not to appreciate at its full force the con-

333

§ 58.] INTERVENTION. [OHAP. III.

sideratiou tluis ])resente{l. The ]>eaceful raainteiiance of tlie utatvs qno
of the Ameiioaii coniiuouwealths is of the very esseuce of their policy
of harmonious alliance for self-preservation, and is of even more impor-
tance to Mexico than to the United States.

" I have adverted in my ]S^o. 138 to the desire of the United States that
its neighbors should possess strong and prosperous Governments, to the
assurance of their tranquillity from internal disturbance and outside in-
terference. While we wish this happy result for Mexico, we equally
wish it for the other Spanish-American nations. It is no less indispen-
sable to the welfare of Central America than of Mexico, and, by moral
influence and the interposition of good offices, it is the desire and the
intention of the United States to hold up the Eepublics of Central
America in their old strength and to do all that may be done toward
insuring the tranquillity of their relations among themselves and their
collective security as an association of allied interests, possessing in
their common relationship to the outer world all of the elements of
national existence. In this enlarged policy we confidently ask the co-
operation of Mexico. A contrary coarse on her part would only be
regarded as an unwise step, while any movement directly leading to the
absorption, in whole or part, of her weaker neighbors would be deemed
an act unfriendly to the best interests of America.

" It is desired that you should make earnest but calm representation
of these views of the President to the Mexican minister of foreign affairs.
In addition to embodying the main points of my previous instruction,
No. 138, you will make use of such temperate reasoning as will serve to
show Seuor Mariscal that we expect every eftbrt to be made by his Gov-
ernment to avert a conflict with Guatemala, by diplomatic means, or,
these failing, by resort to arbitration. And you will especially intimate
discreetly, but distinctly, that the good feeling between Mexico and the
United States will be fortified by a frank avowal that the Mexican policy
toward the neighboring states is not one of conquest or aggrandize-
ment, but of conciliation, i)eace, and friendship.

" I have written this instruction rather to strengthen jour own hands
in the execution of the delicate and responsible duty thus confided to
you than with a view to its formal communication to Senor Mariscal
by reading and leaving a copy of it with him. If, in your discretion,
the important ends in view will be subserved by your making the min-
ister acquainted with portions hereof, you are at liberty to do so, while
regai'diug the instruction as a whole in a confidential light, and as suj)-
plementary to my IS^o. 138, which you have been authorized to commu-
nicate in extenso, if desirable."

Mr. Blaine, Sec. of State, to Mr. Morgan, June 21, 1881 ; MSS. Inst. Mex. ; For,
Eel., 1881.

"Referring to your correspondence with this Department since its in-
struction tendering the good offices of the Government of the United
334

CHAP. ITT.] MEXICO. [§ 58.

States in aid of the amicable settlement of the dittoieuces between
Mexico and Guatemala, I have to remark that it wouhi be a matter of
the gravest disappointment if 1 found myself compelled to agree with
you in the conclusion which you seem to have reached in your last dis-
patch.

" Beporting in your No. 273, of September 22, 1881, your most recent
conversation with Sefior Mariscal, the Mexican secretary for foreign
affairs, you say :

" ' I venture to suggest that, unless the Government is prepared to
announce to the Mexican Government that it will actively, if necessary,
preserve the peace, it would be the part of wisdom on our side to
leave the matter where it is. Negotiations on the subject will not ben-
efit Guatemala, and you may depend upon it what we have already
done in this direction has not tended to the increasing of the cordial
relations which I know it is so much your desire to cultivate with this
nation.'

" ' To leave the matter where it is,' you must perceive, is simply impos-
sible, for it will not remain there. The friendly relations of the United
States and Mexico would certainly not be promoted by the refusal of
the good offices of this Government, tendered in a spirit of the most
cordial regard both for the interests and honor of Mexico, and suggested
only by the earnest desire to prevent a war useless in its purpose,
deplorable in its means, and dangerous to the best interests of all the
Central American llepiiblics in its consequences. To put aside such
an amicable intervention as an unfriendly intrusion, or to treat it as I
regret to see the Mexican secretary for foreign affairs seems disposed,
as a partisan manifestation on behalf of claims which we have not ex-
amined and interests which we totally misunderstand, can certainly not
contribute ' to the increasing of the cordial relations which you know
it is so much our desire to cultivate with Mexico.'

" But, more than this, ' to leave the matter where it is ' is to leave
Mexico and Guatemala confronting each other in armed hostility, with
the certainty that irritation and anger on the one side and extreme ap-
prehension on the other will develop some untoward incident leading to
actual collision. In such event no successfull resistance can be antici-
pated on the i)art of Guatemala. Whether the claims of Mexico be
moderate or extravagant, whether the cession of territory be confined
to the present alleged boundary lines or be extended to meet the
necessities of a war indemnity, there would be another lamentable de-
monstration on this continent of the so called right of conquest, the
general disturbance of the friendly relations of the American Republics,
and the postponement for an indefinite period of that sympathy of feel-
ing, that community of purpose, and that unity of interest, upon the
development of which depends the future prosperity of these countries.

*' The Republic of Guatemala, one of those American Republics in
whose fortunes the United States naturally feel a friendly interest, com-

335

§ 58.] INTERVENTION. [CHAP. IM.

iminicated to this Govermnent that there exisited between it aiul i\!t'x-
ico certain dinVrences which, aftir much dii)l()niatic consultation, had
failed to reach a satislactory settlement. Kecognizing the relation of
the United States to all the Republics of this continent, aware of the
friendly services which this Government has never failed to render to
Mexico, and presuming not unnaturally that Mexico would receive our
amicable counsel with cordiality and confidence, the GovernmQnt of
Guatemala asked our good ofiBces with that power for the purpose of
inducing it to submit to an impartial arbitration those differences upon
which they had been unable to agree.

" To refuse such a request would not only have been a violation of in-
ternational courtesy to Guatemala, but an indication of a want of con-
fidence in the purposes and character of the Mexican Government which
we could not and did not entertain.

" In tendering our good oflBces, the Mexican Government was dis-
tinctly informed that 'the United States ' is not a self-constituted arbi-
trator of the destinies of either country or of both in this matter. It is
simply the impartial friend of both, ready to tender frank and earnest
counsel touching anythnig which may menace the peace and prosperity
of its neighbors.'

" Before this instruction could have reached you. Information was re-
ceived that large bodies of Mexican troops had been ordered to the front-
ier in dispute. You were therefore directed to urge upon the Mexican
Government the propriety of abstaining from all such hostile demon-
stration in order to aflbrd opportunity for the friendly solution of the
differences between the two Governments. It is unnecessary now to re-
peat the reasons which you were instructed to submit to the considera-
tion of the Mexican Government, and which were stated in the most
earnest and friendly spirit, and which were communicated by you to the
Mexican secretary for foreign affairs with entire fidelity.

" I now learn from your dispatches that our information was correct ;
that Mexican troops have been ordered to the disputed boundary line,
and that, while the Mexican Government does not absolutely reject a
possible future arbitration, it is unwilling to postpone its own action to
further discussion, and does not receive the good oflBces of this Govern-
ment in the spirit in which they have been tendered. The United
States does not pretend to direct the policy of Mexico, nor has it made
any pretension to decide in advance upon the merits of the controversy
between Mexico and Guatemala. The Mexican Government is of course
free to decline our counsel, however friendly. But it is necessary that
we should know distinctly what the Mexican Government has decided.
It is useless, and from your dispatches I infer it would be irritating, to
keep before the Govermnent of Mexico the offer of friendly intervention,
while, on the other hand, it would not be just to Guatemala to hold that
Government in suspense as to whether there was a possibility of the
acceptance of the amicable mediation which we have offered.
336

CHAP, inTJ" MEXICO. [§ 58.

" Von V. ill, llu'iefore, upon the receipt of this iiistruction, ask for an in-
terview with the secretary for foreign affairs. You will press uiK)n his
reconsideration the views which you have already submitted to him ;
assure him of the earnestness with which this Government desires a
peaceful solution of the existing differences, and inform him of our pro-
found regret and disappointment that the tender of our good offices
has not been received in the spirit in which it was made. * * * In
reference to the union of the Central American Republics, under one fed-
eral government, the United States is ready to avow that no subject
api)eals more strongly to its sympathy, nor more decidedly to its judg-
ment. Nor is this a new i)olicy. For many years this Government has
urged upon the Central American States the importance of such an
union to the creation of a well-ordered and constitutionally governed
Republic, and our ministers have been instructed to impress this upon
the individual Governments to which they have been accredited, and
to the Central American statesmen with whom they have been asso-
ciated. And we have always cherished the belief that in this effort we
had the sincere sympathy and cordial cooperation of the Mexican Gov-
ernment. Under the conviction that the future of the people of Central
America was absolutely' dependent upon the establishment of a federal
government which would give strength abroad and maintain peace at
home, our chief motive in the recent communications to Mexico was to
prevent the diminution, either political or territorial, of any one of these
States, or the disturbance of their exterior relations, in order that,
trusting to the joint aid and friendship of Mexico and theUnited States,
they might be encouraged to persist in their effort to establish a gov-
ernment which would, both for their advantage and ours, represent
their combined wealth, intelligence, and character.

" If this Government is expected to infer from the language of Seiior
Mnriscal that the prospect of such a result is not agreeable to the
policy of Mexico, and that the interest which the United States have
always manifested in its consummation renders unwelcome the friendly
intervention which we have offered, I can only say that it deepens the
regret with which we will learn the decision of the Mexican Govern-
ment, and compels me to declare that the Government of the United
States will consider a hostile demonstration against Guatemala for the
avowed purjjose, or with the certain result of weakening her power in
such an <?ffbrt, as an act not in consonance with the position and char-
acter of Mexico, not in harmony with the friendly relations existing
between us, und injurious to the best interests of all the Republics of this
continent.

" The Government of the United States has the sincerest sympathy

and the proloundest interest in the prosperity of the Spanish Republics

of America, and is iniiuenced by no selfish considerations in il^s earnest

efforts to prevent war between them. This country will continue its

S. Mis. 1G2— VOL. I 22 * 337

§ 58.] INTERVENTION. [CHAP. III.

policy of peace even if it canDot have the great aid which the co-opera-
tion of Mexico would assure ; and it will hope, at no distant day, to
see such concord and co-operation between all the nations of America
as will render war impossible."

Mr. Blaine, Sec. of State, to Mr. Morgan, Nov. 28, 1881; MSS. Inst., Mex. ; For.
Eel., 1881.

As to mediation in wars in which Mexico was a belligerent, see supra, § 49.

As to recognition of changes of Government in Mexico, see infra, § 70.

As to a temporary protectorate by the United States over the northern por-
tions of Chihuahua and Sonora, see President Buchanan's message of 1858,
<luoted supra, $ 50e.

As to claims against Mexico, see infra, S 2'23.

The following references to documents relative to Mexico are taken from the list of

papers concerning foreign relations attached to the register of the Department

of State :

Commercial intercourse with. Not deemed advisable to commnnicate correspond-
ence on the subject of its extension. President's message. Jnly 19,1876.
(H. Ex. Doc. 185, Forty-fourth Congress, first session.)

Relations with. Historical review. Texas border troubles and extradition re-
port. Committee on Foreign Affairs. April 25, 1«78. (H. Rep. 701, Forty-
fifth Congress, second session.)

Resolutions touching the relations with. May 8,1878. (.S. Mis. Doc. 63, Forty -
fifth Congress, second session.)

Commercial relations with. President's message. .January 7, 1879. (H. Ex. Doc.
15, Forty-fifth Congress, third session.)

Commercial treaty with. Report favoring the negotiation of such treaties. Feb-
ruary 18,1879. (H. Rep. 108, Forty-fifth Congress, third session.)

Railroads in. Concessions granted by Mexico for. President's message. Feb-
ruary 28, 1879. (S. Ex. Doc. 73, Forty-fifth Congress, third session.)

Austin-Topolovampo Railroad survey across Mexico. President's message. Jnlj'
1,1879 (S. Ex. Doc. 38, Forty-sixth Congress, first session), stating that the
Department of State has no information.

I'lotection of the Rio Grande frontier. Report of Committee on Military Affairs
favoring the erection of suitable posts on the frontier for that purpose. De-
cember 9, 1879. (S. Rep. 40, Forty-sixth Congress, second session.)

Protection of the Rio Grande frontier. Report of Committee on Military Alfairs
favoring the erection of suitable posts on the frontier for that purpose. Jan-
uary 14, 1880. (H. Rep. 68, Forty-sixth Congress, second session.)

Seizure and detention of the Montana by the customs authorities at Mazatlan.
Claim of Max Bromberger. President's message. February 27,1880. (8.
Ex. Doc. 96, Forty-sixth Congress, second session.)

Amendment to the resolution thanking Mexican Government and people for cour-
tesies extended to American merchants who recently visited that country.
April 8,1880. (H. Rep. 1015, Forty-sixth Congress, second session.) p. 1.

Resolution asking whether the United States have objected to Mexico bringing
suit in United States courts rs. American citizens. February 8, 1881. (S. Mis.
Doc. .33, Forty-sixth Congress, third session.)

Proposed reciprocity treaty with. February 6, 1882. (S. Mis. Doc. 45. Forty-
seventh Congress, first session.)

Relations between Guatemala and the United States — the boundary question.
President's message. February 17, 1882. (S. Ex. Doc. 156, Forty-seventh
Congress, first session.)

338

CHAP. III.] PERU. [$ 59.

Couiiuercial treaty with. President's raeseage retransmittiugthesiimc, asaiuended
by insertion of tlio word ''steel" in item (.%) (iH of the list appended to article
2. February 6, iy8:i. (S. Ex. Doc. 75, Forty-seventh Congress, second ses-
sion.) Report reconiniendiug that it be carried into operation. With map.
June 17, 18fc'4. (H. Rep. 1848, Forty-eighlh Congress, first session.)

Amendment to pending treaty asi\ed. Memorial of Trinidad and San Jos6 Silver
MiniTig Company. January IG, 1883. (S. Mis. Doc. 2:',, Forty-seventh Con-
gress, second session.)

Trade between tlie United States and, and trafiic over railroads connecting the
two countries. Letter from the Secretary of the Treasury. With map. Feb-
ruary 8, 1884. (H. Ex. Doc. 86, Forty-eighth Congress, first session.)

Boundary betweeu Guatemala and. President's message, transmitting report of
the Secretary of State. May 6, 1884. (H. Ex. Doc. 154, Forty-eighth Con-
gress, first session.)

Boundary line between the United States and. President's message, transmitting
letter from the Secretary of State recommending an appropiiatlon for relo-
cating monuments marking. May 14, 1884. (II. Ex. Doc. 158, Forty-eighth
Congress, first session.)

Bonndary line between the United States and. Report of Lieut. Thomas W.
Symons concerning a preliminary reconnoissance of. May 26, 1884. (S.
Mis. Doc. 96, Forty-eighth Congress, first session.)

Latest law of, creating or modifying the Zona Libre. President's message trans-
mitting report of the Secretary of State. June 12, 1884. (S. Ex. Doc. 185,
Forty-eighth Congress, first session.)

(2) Peru.
§59.

" The deplorable couditiou of Peru, the disorganization of its Gov-
ernment, and the absence of precise and trustworthy information as
to the state of affairs now existing in that unhappy country, render it
impossible to give you instructions as full and definite as I would
desire.

" Judging from the most recent dispatches from our ministers, you
will probably find on the part of the Chilian authorities in possession
of Peru a willingness to facilitate the establishment of the provisional
Government which has been attempted by Seiior Calderon. If so, you
will do all you properly can to encourage the Peruvians to accept any
reasonable conditions and limitations with which this concession may
be accompanied. It is vitally important to Peru that she be allowed
to resume the functions of a niJtive and orderly Government, both for
the purposes of internal administration and the negotiation of peace.
To obtain this end it would be far better to accept conditions which
may be hard and unwelcome than by demanding too much to force the
continuance of the military control of Chili, It is hoped that you will
be able, in your necessary association with the Chilian authorities, to
impress upon them that the more liberal and considerate their policy,

339

§ 59.] INTERVENTION. [CHAP. III.

the surer it will be to obtaiu a lastiug and satisfactoi > settlement. The
Peruvians cannot but be aware of the sympathy and interest of the
people and Government of the United States, and will, 1 feel confident,
be prepared to give to your representations the consideration to which
the friendly anxiety of this Government entitles them.

"The United States cannot refuse to recognize the rights which the
Chilian Government has acquired by the successes of the war, and it
may be that a cession of territory will be the necessary price to be paid
for peace. It would seem to be injudicious for Peru to declare that
under no circumstances could the loss of territory be accepted as the
result of negotiation. The great objects of the provisional authorities
of Peru would seem to be to secure the establishment of a constitu-
tional Government, and next to succeed in the opening of negotiations
for peace without the declaration of preliminary conditions as an ulti-
matum on either side. It will be difBcult, perhaps, to obtain this from
Chili ; but as the Chilian Government has distinctly repudiated the
idea that this was a war of conquest, the Government of Peru may
fairly claim the opportunity to make propositions of indemnity and
guarantee before submitting to a cession of territory. As far as the
influence of the United States will go in Chili, it will be exerted to in-
duce the Chilian Government to consent that the question of the ces-
sion of territory should be the subject of negotiation and not the con-
dition precedent upon which alone negotiation shall commence. If you
can aid the Government of Peru in securing such a result, you will
have rendered the service which seems most pressing. Whether it is
in the power of the Peruvian Government to make any arrangements
at home or abroad, singly or with the assistance of friendly powers,
which will furnish the necessary indemnity or supply the required guar-
antee, you will be better able to advise me after you have reached your
post.

'•As you are aware, more than one proposition has been submitted to
the consideration of this Government looking to a friendly intervention
by which Peru might be enabled to meet the conditions which would
probably be imposed. Circumstances do not seem at present opportune
for such action ; but if, upon full knowledge of the condition of Peru,
you can inform this Government that Peru can devise and carry into
practical effect a plan by which all the reasonable conditions of Chili
can be met without sacrificing the integrity of Peruvian territory, the
Government of the United States would be willing to offer its good of-
fices toward the execution of such a project.

"As a strictly confidential communication, I inclose you a copy of
instructions sent this day to the United States minister at Santiago.
You will thus be advised of the position which this Government as-
sumes toward all the parties to this deplorable conflict. It is the de-
sire of the United States to act in a spirit of the sincerest friendship
340

CHAP. III.] PERU. [§ 59.

to the three Eepublics, and to use its iDfluence solely in the interest of
an honorable and lasting peace."

Mr. Blaine, Sec. of State, to Mr. Hurlbut, June 15, 1881; MSS. Inst., Peru ; For.
Rel., 1881.

" Your dispatches to No. 23, inclusive, have been received, and I learn
with regret that a construction has been put upon your language and
conduct indicating a ])olicy of active intervention on the part of this
Government, beyond the scope of your instructions. As those instruc-
tions were clear and explicit, and as this Department is in the posses-
sion of no information which would seem to require the withdrawal of
the confidence reposed in you, I must consider this interpretation of
your words and acts as the result of some strange and perhaps preju-
diced misconception.

" My only material for forming an opinion consists of your memoran-
dum to Admiral Lynch, your letter to Senor Garcia, the secretary of
General Pi^rola, and the convention with President Calderon, ceding
a naval station to the United States. I would have i)referred that you
should hold no communication with Admiral Lynch on questions of a
diplomatic character. He was present as a military commander of
Chilian forces, and you were accredited to Peru. Nor do I conceive
that Admiral Lynch, as the commander of the Chilian army of occupa-
tion, had any right to ask or receive any formal assurance from you as
to the opinions of your Government. The United States was repre-
sented in Chili by a properly accredited minister, and from his own
Government the admiral could and ought to have received any informa-
tion which it was important for him to have. It was to be expected,
and even desired, that frank and friendly relations should exist between
you, but I cannot consider such confidential communication as justify-
ing a formal appeal to your colleague in Chili, for the correction or crit-
icism of your conduct. If there was anything in your proceedings in
Peru to which the Government of Chili could properly take exception,
a direct representation to this Government, through the Chilian minis-
ter here, was due, both to the Government and to yourself.

'' Having said this, I must add that the language of the memorandum
was capable of not unnatural construction. While you said nothing
that may not fairly be considered warranted by your instructions, you
omitted to say with equal emphasis some things which your instruc-
tions supplied, and which would perhaps have relieved the sensitive
apprehensions of the Chilian authorities. For, while the United States
would unquestionably "regard with disfavor" the imperious annexa-
tion of Peruvian territory as the right of conquest, you were distinctly
informed that this Government could not refuse to recognize that such
annexation might become a necessary condition in a final treaty of
peace. And the main purpose of your effort was expected to be, not
so much a protest' against any possible annexation, as an attempt by

341

§ 59.] INTERVENTION. [CHAP. III.

friendly but unofficial communications with the Chilian authorities
(with whom you were daily associated), to induce themlto support the
]K)ii<'y of ftiviiif;- to Peru, without the imi)osition of harsh and absolute
conditions precedent, the opportunity to show that the rights and in
terests of Chili could be satisfied without such annexation. There is
enonnjh in your memorandum, if carefully considered, to indicate this
purpose, and I only regret that you did not state it with a distinctness,
and if necessary with a repetition, which would have made impossible
anything but the most willful misconception.

"As at present advised I miist express disapproval of your letter to
Senor Garcia, the secretary of General Pierola. I think that your
proper course in reference to Garcia's communication would have been
either entirely to ignore it as claiming an official character which you
could not recognize, or, if you deemed that courtesy required a reply,
to state that you were accredited to the Calderon government, and
could, therefore, know no other, and that any communication which
General Pierola thought it his duty or interest to make must be made
directly to the Government at Washington. You had no responsibility
in the matter, and it was injudicious to assume any. The recognition
of the Calderon government had been duly considered and decided by
your own Government, and you were neither instructed nor expected
to furnish General Pierola or the Peruvian public with the reasons for
that action. The following language in your letter to Senor Garcia
might well be misunderstood:

" 'Chili desires, and asks for Tarapac^, and will recognize the Govern-
ment which agrees to its cession. The Calderon government will not
cede it. It remains to be seen whether that of Pierola will prove more
pliable.'"

" It might easily be supposed, by an excited public opinion on either
side, that such language was intended to imply that the Government
of the United States had recognized the government of Calderon be-
cause of its resolution not to cede Peruvian territory. No such motive
has ever been declared by this Government. The government of Cald-
eron was recognized because we believed it to the interest of both Chili
and Peru that some respectable authority should be established which
could restore internal order, and initiate responsible negotiations for
peace. We desired that the Peruvian Government should have a fair
opportunity to obtain the best terms it could, and hoped that it would
be able to satisfy the just demands of Chili without the painful sacri-
lice of the national territory. But we did not make, and never intended
to make, any special result of the peace negotiations the basis of our
recognition of the Calderon government. What was best, and what
was possible for Peru to do, we are anxious to the extent of our power
to aid her in doing, by the use of whatever influence or consideration
we enjoyed with Chili. Further than that, the Government of the
United States, as yet, expressed neither opinion nor intention.
342

CHAP. III.] PERU. [§69.

''I must also express tlie diss;itisfaction of the Department at your
telegram to the minister of the United States near the Argeutiue Confed-
eration, suggesting that a minister be sent by that Government to Peru.

" This would have been clearly without the sphere of your proper oflS-
cial action at any time, but as there then existed a serious difference
between Chili and the Argentine Confederation, you might naturally
have anticipated that such a recommendation would be considered by
Chili as an effort to effect a political combination h gainst her. The
United States was not in search of alliances to support a hostile dem-
onstration against Chili, and sucl|^ta^uxiety might well be deemed
inconsistent with the i^rofessions o^i^^bartial mediation.

"As to the convention with regard to^mlltel station in the bay ot
Chimbote, I am of the opinion that, although it is a desirable arrange-
ment, the time is not opportune. I would be very unwilling to ask
such a concession under circumstances which would almost seem to
impose upon Peru the necessity of compliance with our request, and I
have no doubt that whenever Peru is relieved from present embarrass-
ments she would cheerfully grant any facilities which our naval or
commercial interests might require, ^or in the present excited condi-
tion of public opinion in Chili would I be willing to afford to evil-dis-
posed persons the opportunity to intimate that the United States con-
templated the establishment of a naval rendezvous in the neighborhood
of either Peru or Chili. The very natural and innocent convenience
which we require might be misunderstood or misrepresented, and as
our sole purpose is to be allowed, in a spirit of the most impartial friend-
ship, to act as mediator between these two powers, I would prefer at
present to ask no favors of the one and to excite no possible apprehen-
sion in the other.

" Having thus stated with frankness the impression made upon the
Department by such information as you have furnished it, it becomes
my duty to add that this Government is unable to understand the abo-
lition of the Calderon government and the arrest of President Calderon
himself by the Chilian authorities, or I sui)pose I ought to say by the
Chilian Government, as the secretarj' for foreign affairs of that Gov-
ernment has in a formal communication to Mr. Kilpa trick declared that
the Calderon government "was at an end." As we recognized that
government in supposed conformity with the wishes of Chili, and as no
reason for its destruction has been given us, you will still consider
yourself accredited to it, if any legitimate representative exists in the
place of President Calderon. If none such exists, you will remain in
Lima until you receive further instructions, confining your communica-
tions with the Chilian authorities to such limits as your personal con-
venience and the maintenance of the rights and privileges of your lega-
tion may require.

" The complicated condition of affairs resulting from the action of the
Chilian Govermnent, the time required for communication between the

343

§ 59.] INTERVENTION. [CHAP. III.

legations in Chili and Peru and this Department, and the unfortunate
notoriety which the serious differences between yourself and your col-
league in Chili have attracted have, in the opinion of the President,
imposed upon him the necessity of a special mission. This mission will
be charged with the duty of expressing the views of the President upon
the grave condition of afiairs which your dispatches describe, and, if
possible, with due consideration of the rights, interests, and suscepti-
bilities of both nations to promote a settlement which shall restore to
the suffering peojde of Peru the benefits of a well ordered Government,
deliver both countries from the miseries and burdens of a protracted
war, and place their future relations upon a foundation that will prove
stable, because just and honorable."

Mr. Blaine, Sec. of State, to Mr. Hurlbut, Nov. 22, 1881; MSS. lawt., Peru;
For. Rel., 1881.

" The United States, with which Peru has for many years maintained
the most cordial relations, has the right to feel and express a deep in-
terest in its distressed condition, and while, with equal friendliness to
Chili, we will not interpose to deprive her of the fair advantages of
military success, nor put any obstacle to the attainment of future se-
curity, we cannot regard with unconcern the destruction of Peruvian
nationality. If our good offices are rejected, and this policy of the ob-
sorptiou of an independent state be persisted in, this Government will
consider itself discharged from any further obligation to be influenced
in its action by the position which Chili has assumed, and would hold
itself free to appeal to the other Republics of this continent to join in
an effort to avert consequences which cannot be confined to Chili and
Peru, but which threaten with extremest danger the political institu-
tions, the peaceful progress, and the liberal civilization of all America.'?
Mr. Blaine, Sec. of State, to Mr. Trescot, Dec. 1, 18H1 ; MSS. Inst., Chili.

" Were the United States to assume an attitude of dictation toward
the South American Republics, even for the purpose of preventing war,
the greatest of evils, or to preserve the autonomy of nations, it must
be prepared by Army and ]Sravy to enforce its mandate, and, to this
end, tax our people for the exclusive benefit of foreign nations.

" The President's policy with the South American Republics and other
foreign nations is that exju-essed in the immortal address of Washing-
ton, with which you are <'ntirely familiar. What the President does
seek to do is to extend the kindly offices of the United States impartially
to both Peru and Chili, whose hostile attitude to each other he seriously
laments; and he considers himself fortunate in having one so compe-
tent as yourself to bring the power of reason and persuasion to bear in
seeking the termination of the unhappy controversy. And you will
consider as revoked that ])ortion of your original instruction which di-
rects you, on the contingency therein stated, as follows:

<'' You will say to the Chilian Goverumeut that the President cou-
344

CHAP. III.] PERU. [§ 59.

siders such a proceeding as an intentional and unwarranted offense, and
that you will comomnicate such an avowal to the Government of the
United States, with the assurance that it will be regarded by the Gov-
ernment as an act of such unfriendly import as to require the immediate
suspension of all diplomatic intercourse. You will inform me imme-
diately^ of the happening of such a contingency, and instructions will
be sent to you.'

" Believing that a prolific cause of contention between nations is an
irritability which is too readily offended, the President prefers that he
shall himself determine, after report has been made to him, whether
there is or is not cause for offense."

Mr. Frelinghuyseu, Sec. of State, toMr. Trescot, Jan. 9, 1882; MSS. Inst., Chili.

" On the other hand he remains convinced that the United States has
no right which is conferred either by treaty stipulations or by public
law to impose upon the belligerents, unasked, its views of a just settle-
ment, and it has no interests at stake commensurate with the evils that
might follow an interference, which would authorize it to interpose be-
tween these parties, further than warranted by treaties, by public law,
or by the voluntary acts of both parties."

Mr, Frelinghnysen, Sec. of State, to Mr. Tiescot, Feb. 24, 1882; MSS. Inst.,
Chili.

" The study which you have made of the correspondence between
this Department and the legations of the United States in Chili, Peru,
and Bolivia renders unuecessar3^ a detailed statement of the protracted
negotiations seeking to establish peace between those Republics.

"The general policy of the United States in regard to the conflict be-
tween these states is set forth in instructions No. 2, of December 1,
1881, to Mr. Trescot; No. 2, of March 18, 1882, and No. 41, of March
23, 1883, to Mr. Logan, and No. 5, of June 26, 1882, to Mr. Partridge,
and also in the message of the President to Congress, transmitted to
that body in December last.

"The representatives of this Government, as you have seen from these
instructions, were directed harmoniously to join in a courteous and
friendly effort to aid the belligerent powers in reaching an agreement
for peace, which, while securing to Chili the legitimate results of suc-
cess, should at the same time not be unduly severe upon Peru and
Bolivia.

" Mr. Logan, who was accredited to Chili, has for some nine months
energetically sought for a satisfactory basis of settlement, but thus far
without that success which it was hoped before this time might have
been attained. Nevertheless it is believed that his efforts have aided
in bringing the parties nearer to an agreement.

"Mr. Logan was instructed in my No. 41, of March 23, 1883, that he
should suggest the following bases for a treaty of peace to the Chilian
Government, viz : The cession to Chili of the Peruvian territory of Tara

345

§ 5 9. J INTERVENTION. [CHAP. III.

paca, aud the submission to impartial arbitration of the question whether
any additional territory should be ceded, and, if so, how much and on
what terms. When this instruction reached Santiago another phase of
this question had presented itself in the substantial agreement by Chili
with General Jglesias, who had been put forward as the representative
of Peru. The full text of this agreement has not been received at the
Department, but it is understood that in substance it concedes to Chili
the i)rovince of Tarapaca, with the occupation for ten years of the prov-
ince of Tacna and Arica, at the end of which time a plebiscite is to be
taken to decide to which of the parties the provinces shall thencefor-
ward belong, the successful power to pay to the other the sum of ten
millions of dollars. The other provisions, as to guano and the Peruvian
debt, are not yet definitely known.

" It will be seen that these terms are more severe upon Peru than
those which Chili had before been willing to accord. It was after Seuor
Calderon declined the terms of settlement offered by Chili through Mr.
Logan's mediation that Chili turned to General Iglesias, and, through
a representative sent by him, submitted the terms of settlement here-
inbefore stated, and which terms have by this time received the signa-
ture of General Iglesias.

"It is not the province of this Government to adjudge who is or who
is not dejure the representative of the executive or sovereign power of
:iny nation. International intercourse imposes upon it often the neces-
sity of recognizing some one as at least de facto such representative.

'•I'pon the flight of Pierola the Government of Seiior Calderon was
reeu:4nized by the United States as the de facto Government of Peru,
springing up necessarily from the state of affairs then existing, and
having apparently the support of the majority of the citizens of Peru.
Soon after its recognition Senor Calderon was transported to Chili as
a prisoner, and since that time has not been in the territory of his native
country. Seiior Montero, meantime the vice president, has at various
points in the country, and now for some time at Arequipa, represented
in Peru the authority of that Government of which he is the second in
rank.

"It is now claimed that the Government of Calderon-Montero has lost
the attributes of a de facto government, and it is urged that, not having
the support of the people, it is no longer entitled to recognition. The
information furnished this Department on the subject, however, is most
conflicting, and is naturally colored by the sentiments of the different
observers. On the one hand it is said that General Iglesias is supported
by fully five-sixths of the population of Peru, that the provinces of the
north and center ai-e solidly united in his aid and in approval of his
l)lan of settlement, while on the other hand, we are told that Calderon
was never so strong as at present, that his own moral influence and the
physical force of his followers are impregnable in Arequipa, and that
a majority of his countrymeu support irnd approve his coui'se. It is
346

CHAP. III.] PERU. [§ 59.

evident that no peace can be made unless Peru is repY-esented in its ne-
gotiation by some one having the support of his fellow-countrymen and
whose action will meet with their approval.

"In SeSor Calderon this Government understood that it recognized
such a ruler. As at present advised, it would not hastily withdraw or
transfer that recognition. Should the facts be as alleged by the friends
of General Iglesias, this Government will not, by adhering to the recog-
nition of Seiior Calderon, impetle the advance toward an amicable ad-
justment of the difficulty.

" Your first and most delicate duty, therefore, will be, by rendering
yourself familiar with the condition, politics, and affairs of Peru, and
consulting, if practicable, with your colleagues the ministers to Chili
and Bolivia, to report fully to this Department whom it is wise and
proper that this Government, having in view the peace and prosperity
of the three contending Republics, should recognize as the executive
representative of the sovereignty of Peru.

" The confidence which this Department places in your discretion and
good judgment and that of your colleagues will render your report on
this delicate question influential with this Government in its determi-
nation ; and should the opinion of the ministers to Chili, Peru, and
Bolivia be in harmony, such opinion would be well-nigh conclusive.

"As soon as you reach a decision satisfactory to yourself you will re-
port the result without delay to this Government, using, if necessary,
the telegraph freely for this purpose; and if in your judgment it becomes
important, you may, without in any manner committing yourself as to
your final conclusions, report by telegraph the progress of your inves-
tigations and their indications.

"While greater stress has been given in the instructions of this De-
partment to the relations of Peru and Chili, it must not be assumed that
the rights and wishes of Bolivia, a sovereign power and a party to the
contest, with rights equal to the other contestants, are to be neglected.
It is not supposed that any agreement will be made, nor in fact can
any agreement be reached, which shall not receive the assent of that
l)ower in all that concerns its interests. As this Government has rec-
ognized the equal sovereignty of the three Kepublics, and will not de-
part from that position, of course any agreement, so far as it affects the
rights of Bolivia, must receive the consent of that power.

" Until Chili and Peru had reached a point where a fair prospect of
agreement was seen, it seemed unnecessary to negotiate at La Paz, par-
ticularly as Seiior Calderon, it was properly assumed, would not act
against the interests of his ally. For these reasons the tentative dis-
cussions were carried on at Santiago.

" I simply add that it is not for this Government to dictate to sover-
eign belligerent powers the terms of peace to be accepted by them, nor
is it the right or duty of the United States in the premises to do more
than to aid by their unprejudiced counsels, their freindly mediation, and

347

§ 59.] INTERVENTION. [CHAP. III.

their moral support the obtainment of peace — the much -desired end.
If sucli an end can be reached iu a manner satisfactory to all parties
more speedily through negotiations with Peruvian authority other than
that heretofore recognized by this Government as the de facto ruler of
Peru, this Government will not, through any spirit of i)ride or i)ique,
stand in the way of the hoped-for result."

Mr. Frelingliuysen, Sec. of State, to Mr. Phelps, July 26, 1883 ; MSS. lust., Peru ;
For. Eel., 188:5.

" I transmit herewith for your information a copy of a dispatch from
Mr. Logan, communicating the test of the protocol signed between
General Iglesias and the Chilian general, Norva, leading to a definitive
treaty of jieace,

" An examination of the terms of the protocol shows that the foreign
debt of Peru is guaranteed only to a limited extent by a portion only of
the guano product, the overplus, as well as all future discoveries of
guano, to go to Chili.

" This Government does not undertake to speak for any other than
the lawful interests of American citizens which may be involved in this
settlement, but as to them it must be frankly declared and unmistak-
ably understood that the United States could not look with favor upon
any eventual settlement w^hich may disregard such interests.

"It may be difficult for you, in concert with your colleagues, to advo-
cate any determinate solution of the embarrassing questions relating to
the other foreign debt of Peru, since this Government cannot under-
take to advocate the interests of any class of bondholders or other
legitimate creditors of Peru without exercising a like watchful consid-
eration for the interests of all. It seems, however, to be essential to a
just and lasting peace either that Peru should be left in a condition to
meet obligations toward other Governments which were recognizcil
prior to the war or which may be legitimately established, or that if
Chili appropriates the natural resources of Peru as compensation for the
expenses of the war she should recognize the obligations which rest
upon those resources, and take the property with a fair determination
to meet all just incumbrances which rest upon it.

" The President would see with regret any insistance by Chili upon a
policy which would impose upon Peru heavier burdens than she has
been disposed to impose during the past negotiations.

"Better terms, if oflered, would be api)reciated by him as a friendly
recognition of the earnestness whi(;li this Government has shown in
endeavoring to bring about an honorable and equitable end to the
painful strife."

Mr. Frelinghuysen, Sec. of State, to Mr. Phelps, Aug. 2o, 1883; MSS. Inst.,
Peru; For. Rcl., 1883.

"Your several dispatches, so far as received to date, reporting the
military and political situatiou iu Peru, have been considered with the
348

CHAP. III.] PERU. [§ 59.

jitteiitioii deinaiuUHl by the importance of the occurrenceH you narrate.
As sup[)leinented by your later telegrams, they jihow the conclusion of
a treaty of peace between General Ij^lesias and the Chilian plenipoten-
tiary, on what are understood here to be bases substantially in accord
with the terms of the protocol jjreviously signed between General Igle-
sias and the representative of Chili; the evacuation of Lima by the
Chilian forces; the installation there of a form of provisional adminis-
tration under the Presidency of General Iglesias; and the revolt of the
residents or garrison of Arequipa against the authority of Vice-President
Montero, who thereupon escaped by fliglit. Besides this, it appears
that the first public act of General Iglesias on assuming control of the
provisional Government thus established, was to issue a convocation
for an assembly of delegates, to be chosen bj^ the people of Peru, to
whom is to be referred the question of accepting and ratifying the treaty
which has been signed, and who are further to decide the Presidency
of the Peruvian Government.

" Of the terms of the treaty itself I cannot at present speak. You are
already acquainted with the views of this Government upon the main
point involv^ed. It remains to be seen whether the people of Peru, in
the expression of their national sovereignty, are dis])Osed to accei)t the
terms proposed to them. With this the Government of the United
States has no desire to interfere. It respects the independence of Peru
as a commonwealth entitled to settle its own afiairs in its own way. It
recognizes too keenly the calamities of protracted strife, or the alterna-
tive calamity of prolonged military occupation by an enemy's forces, to
seek, by anything it may say or do, to influence an adverse decision of
the popular representatives of Peru. And a due respect for their sov-
ereign independence forbids the United States from seeming to exert
any positive or indirect pressure upon these representatives to influence
their course.

" The state of facts reported by you makes it necessary to give you in-
structions respecting your relations with the provisional Government.
With the people of Peru this country aims, as it has always aimed, to
maintain relations of friendship and symjiathy. With the particular
Administration which may for the time assume to control the aflairs of
Peru we have little direct concern, except so far as our attitude towards
it shall express our friendliness to the nation ; hence we have no i)ar-
tiality for the Calderon-Montero government or desire that you should
manifest any. Should the assembly which is about to convene be
elected under circumstances entitling it to represent the people of Peru
and declare for General Iglesias, this Government would no doubt rec-
ognize him. This, however, it is unnecessary to say, as such an an-
nouncement in advance of the action of the assembly might in effect
exert an influence lipon its deliberations, which we seek to avoid.

349

§ 59.] INTERVENTION. [CHAP. III.

"In the mean time, however, your attitude towards whatever Admin-
istration may have' actual control of the public affairs of Peru should be
unconstrained, althoujifh informal, and of a character to impress them
with a sense of the good-will we bear to the Peruvian people."

Mr. Frelinghnyseu, Sec. of State, to Mr. Plielps, Nov. 1.5, 1883; MSS. Inst..
Peru; For. Rel,, 1883.

" The opinion of the United States heretofore has been, that as the
foreign obligations of Pern, incurred in good faith before the war, rested
upon and were secured by the products of her guano deposits, Chili
was under a moral obligation not to aj^propriate that security without
recognizing the lien existing thereon. This opiuion was frankly made
known to Chili, and our belief was expressed that no arrangement would
be made between the two countries by which the ability of Peru to meet
her honest engagements towards foreigners would be impaired by the
direct act of Chili. This Government went so far as to announce that it
could not be a party, as mediator, or directly lend its sanction to any
arrangement which should impair the power of Peru to pay those debts."

Mr. Freliughuysen, Sec. of State, to Mr. Phelps, Dec. 29, 1883 ; MSS. lust.,
Peru.

" Your energy in seeking to reach some conclusion is appreciated,
but for this Government to direct you to tell Peru that it should sur-
render Tarapaca, Tacna, and Arica, on receiving $10,000,000, would be
assuming to decide a question between two nations when we have not
been requested to arbitrate, and it would be telling Chili it might prop-
erly make claim for the territory. Peru's condition may be so deplora-
ble that it is wise for her to accept these terms, but Peru and not the
United States as to this must decide."

Mr. Frelinghuyseu, Sec. of State, to Mr. Logan, Jan. 5, IBSG; MSS. Inst.,
Chili.

The following Congressional documents, as noted in the list of papers concerning
foreign relations attached to the register of the Department of State, may be referred
to in this relation :

Chilian and Peru-Bolivian war. Efforts of the United States to bring about a
peace. President's message. January 20, 1881. (S. Ex. Doc. 26, Forty-
sixth Congress, third session.)

Papers relating to, and attempts to bring about a peace, and touching claims or
contracts respecting either of the belligerent Go%'eraments ; a diplomatic his-
tory of the war. President's message. January 26, 1882. (S. Ex. Doc. 79,
Forty-seventh Congress, first session.) Eefers to the foregoing document
for the correspondence. President's message. January 26, 1882. (H. Ex.
Doc. ()3, Forty-seventh Congress, first session.)

Telegram from Mr. Trescot, setting forth the conditions of peace presented by
Chili. President's message. January 27, 1682. (S. Ex. Doc. 79, part 2,
Forty-seventh Congress, first session.)

Farther correspondence, not incorporated in H. Ex. Doc. 68, comprising letters of
Messrs. Shipherd, Christiancy, and Hurlbut. President's message. February
17, 1882. (H. Ex. Doc. 68, part 2, Forty-seventh Congress, first session.)
350

CHAP. III.]

PERU.

K69.

Peace congress to convene at Washington to agree on some just metliod of settle-
ment of all questions now cxistinjj; or that shall hereafter arise between Chili.
Peru, and Bolivia. Resolution favoring such congress. February 20, l-'-'-J.
(S. Mis. Doc. .'j;5, Forty-seventh Congress, first session.)

Allegt-d contracts for exporting guano, investigation as to connection of United
States officials with. February 24, 1882. (S. Mis. Doc. .')5, Forty -seventh Con-
gress, first session.)

Investigation of charges of official corruption in relation to alleged guano con-
tracts. February 28, 1882. (S. Mis. Doc. 57, Forty-seventh Congress, first
session.)

The dismemberment of Peru. March 7, 1882. (S. Mis. Doc. 62, Fortyseventli
Congress, fir.st session.)

Transmitting correspondence ; the lost papers. President's message. M;irch 1(»,
1882. (S. Ex. Doc. 79, part 3, Forty-seventh Congress, first session.)

Negotiations for restoration of peace in South America. President's message.
March 28, 1882. (H. Ex. Doc. 142, Forty-seventh Congress, lirst session. )

Transmitting instructions of Secretary of State Frelinghuysen to Mr. Trescot.
and other papers. President's message. March 28, 1882. (H. Ex. Doc. 142.
Forty-seventh Congress, first session.)

Answer of Secretary of State to call for more correspondence in the guano claims,
referring to S. Ex. Doc. 79, Forty-seventh Congress, first session. President's
message. May 26, 1882. (H. Ex. Doc. 68, Forty-seventh Congress, first session. )

Report of the Committee on Foreign Affairs relative to certain missing papers
from the files of the Department of State, and also relating to the connection
of one or more ministers plenipotentiary of the United States with business
transactions in which the intervention of the United States was requested
between Chili and Peru. Guano claims of Landreavi and Cochet, Peruvian
Company, and Credit Industriel. August 1, 1882. (H. Rep. 1790, Forty-
seventh Congress, first session.)

Minority report. August .5, 1882. (/bit?., part 2.)

Report of Wm. Henry Trescot and Walker Blaine on the results of the special
mission in South America. President's message. June 14, 1882. (S. Ex,
Doc. 1881, Forty-seventh Congress, first session.)

Joint eflForts of ministers of the United States, Great Britain, France, and Italy in
Lima or Peru to bring about peace. Resolution requesting the President to
give any information in his possession concerning the same, and to state if
the United States minister has been instructed to iiivite or acce))t the nu'dia-
tion of European powers in the settlement of a purely American question.
February 21, 1883. (S. Mis. Doc. 44, Forty-seventh Congress, second session.)
The following is a list of instructions issuing from the De))artnient of State in 1S70-'81
in reference to the war then i)ending between Peru, Chili, and Bolivia. These docu-
ments are published in a volume entitled ''War in South America and attempt to
bring about a peace," printed in the Government Printing Office in 1882. The num-
bers and pages refer to this volume :

Mr. Evaits to Mr.
Pettis (No. 12).

18T9.
June 23

Privateering against Chilian ])roperty in
neutral vessels : authorization of, by Bo-
livia, and ]»r()]i()sed fitting out of ])riva-
teers in the United States by B(tlivian
agents ; instructed to infoTiu Bolivia that
treaty of 18''8 exempts from cajitnre en-
emy's {iroperty on board neutral vessels, I
and that law of the United States prohib-
its fitting out within its territory of ex-
peditious against a country with which
United States is at peace.

351

$59.]

INTERVENTION.

fCHAP. III.

2 Mr. Evarts to Mr.
Pettis (No. i:{).

Same to same (No.
17).

Mr. F. W. Seward
to Mr. Pettis (No.
19).

Same to same (No.

21).

Mr. Evarts to Mr.
Pettis (No. 2.')).

Same to Mr. Adams

(No. 3).

Same to same (No.
10).

Sa,me to same (No.
24).

Mr. F. W. Seward
to Mr. Osborn
(No 63).

Mr. Evarts to Mr.
Osborn (No. 70).

Same to same (No.
8.3).

Same to same (No.
85).

80 I Same to same (No.
89).

1^79.

.IllIH', 2.^)

Aug. H

Aug. 11

Aug. 18
Sept. 19

1880.
Apr. 19

Aug. 2

Dec. 14

1879.
May 29

Aug. 8

1880.
Feb. 19

Mar. 9

Apr. 23

Privatoeriug ])r()j('cts of Bolivia : refers to
Department's No. 12 and incloses Trea.s-
nry regulations for the prevention of
violation of United States neutrality laws
liy privateers in the interest of Bolivia.

Mediation of Colombia for cessation of hos-
tilities between Bolivia and Chili: in-
structed to inform Coloml)iau envoy who
will visit La Paz to proffer such media-
tion, of the friendly solicitude of the
United States as to the result of his mis-
sion.

Neutrality of the United States during war
between Bolivia and Chili : course of Mr.
Pettis in assuring minister for foreign af-
fairs of, approved ; reply to No. 13.

Peace : action reported in his No. 15 in be-
half of, approved ; position of United
States on the subject of mediation.

Conduct of minister in conferring with Pres-
idents of Pern and Bolivia and giving rise
to a supposition that he was on a special
mission to Peru, Chili, and Bolivia; ex-
planation requested.

Prisoners of war: exchange of, between
Chili and Bolivia ; authorized to do what
he can to bring about such exchange.

Policy of the United States regarding
peace : incloses correspondence with min-
ister to Peru.

Peace negotiations : failure of, regretted ;
United States still ready to do whatever
it can for peace ; his personal movements
reported in his No. 36 approved.

War between Chili and Peru : No. 92, trans-
mitting Chili's manifesto justifying her
declaration of war against Peru , received ;
the war is regretted by the United States.

Mediation of Colombia for cessation of hos-
tilities: instructed to express to Colom-
bian envoy who will visit Santiago to
proffer mediation the friendly solicitude
of the United States as to the result of
his mission.

Neutral rights : instructed to bring atten-
tion of Chilian Government to the de-
struction of American property at Talara
and Lobos by Chilian naval forces, and
to inform that Government that the
United Stfites expects the rights of its
citizens as neutrals to be respected, in
pursuance of treaty and international
law.

Foreign intervention: instructed, i^ the
event of attempt being made by Euro-
pean powers to intervene for cessation of
hostilities, to endeavor to induce Chili to
turn to the United States as an arbitra-
tor, rather than to a European Govern-
ment.

Prisoners of war : exchange of, between
Chili and Bolivia; copy of No. 3 to the
United States minister at La Paz, on the
subject, inclosed.

352

CHAP. III.]

PERU.

K59.

10;}

105
110

113

120

126

127

129

Mr. Evarts to Mr.
Osborne ( tel-
egram).

•Sauie to same (tel-
egram).

Same to same (No.
109).

Same to same (tel-
egram).

Bame to same (No.
115).

Same to same (No.
119).

Mr. Blaine to Mr.
Kilpatrick (No.

2).

Same to same (No.
13).

Same to same (tel-
egram).

Same to same (No.
16).

1880.
July 29

Sept. 28

Oct. 14

Nov. 19
Dec. 27

1881.
Feb. 10

June 15

Nov. 22

Nov. 25

Nov. 30

Mediation: "Press upon Chilian Govern-
ment our desire to aid in restoring peace
on honorable terms."

Peace question: "Proceed as jiroposed if
belligerents accede ; insi ructions to our
vessels when you telegraph for them."

Mediation : procee<lings of legation for, by
the United States seem to prosper thus
far; full advices awaited; No. 163 and
telegram of the 9th instant received.

Neutrals : instructed as to taking action
for protection of lives and property of,
when Lima is attacked by Chilians.

Arbitration : instructed to correct errone-
ous impression that the United States
would not cheerfully act as arbitrator,
which a certain remark luade by him
during peace conference raay have
caused.

Peace question : urge upon Chili the desire
of the United States to bring about
peace; now that the Chilians have capt-
ured Lima and Callao, it is believed
that Peru will accept mediation of the
United States upon any reasonable terms ;
advises him of instruction of this date to
Mr. Christiancy.

Intervention : instructed to encourage dis-
position of Chili to restore self-govern-
ment in Peru ; to urge Chili to enter into
negotiations for peace before deciding to
take portion of Peru as war indemnity,
and to endeavor to have European inter-
vention excluded from adjustment of the
peace question.

Peace question : his note to the foreign
ofiice to allay apprehension and correct
false impression produced by the United
States minister at Lima strongly disap-
proved ; Chili had no grounds for ai)pre-
hension and should not have applied to
legation ; her course in suppressing Cal-
deron government unintelligible in view
of her previous assurances, reported in
legation's No. 3; arrest of Calderou re-
gretted ; hopes it is not intended as a re-
buke to the United States on account of
ditferences between him and bis col-
league at Lima ; a special envoy will be
sent to endeavor to arrange a peace ; re-
ply to No. 8.

Calderon government ; its suppression and
arrest of President Calderon are not un-
derstood by United States; special envoy
leaves Washington for Chili immediately,
and it is hoped that farther action will
await his arrival.

Relieves him of negotiations for solution
of peace question; informs him as to ap-
pointment and powers of Mr. Trescot as
special envoy extraordinary and minis-
ter plenipotentiary to conduct such ne-
gotiations; appointment of Third Assist-
ant Secretary of State as assistant to Mr.
Trescot ; Mr. Kilpatrick expected to aid
Mr. Trescot.

171

S. Mis. 162— VOL. I 23

353

§59.]

INTERVENTION.

[OHAP. III.

130

131

132

Mr. Blaiue to Mr.
Trescot (No. 1).

Mr. Blaine to Mr.
Walker Blaine.

Mr. Blaine to Mr.
Trescot (No. 2).

134

137
138

Same to same (No.
3).

Mr. Blaine to Mr.

Walker Blaine.
Mr. Blaiue to Mr.

Trescot (No. 4).

1881.
Nov. 30

Nov. 30

Dec. 1

Dec.

Dec. 16

Personal instructions as special envoy ex-
traordinary and minister plenipotentiary
to Chili, Peru, and Bolivia to negotiate
for solution of peace question.

Personal instruction as Httacb6 to special
missiou for settlement of the peace ques-
tion.

Reviews previous instructions and steps
which led to recognition of Calderon
government; the act an adoption of pol-
icy friendly to Chili ; it was followed by
Chilian military order forbidding Cal-
deron goverument to exercise its func-
tions; President will not assume this as
done in consequence of the recognition
by the United States ; if such a motive
should be avowed, Mr. Trescot instructed
to say that it is regarded as an inten-
tional offense, and to suspend diplomatic
intercourse, but he may receive any ex-
planation which does not involve a dis-
avowal of Mr. Hurlbut. The United
States wishes first to stop bloodshed and
misery ; second, to take care that the
Government of the United States is
treated with the consideration to which
it is entitled, and would be satisfied with
manifestation of purpose in Chili either
to restore Calderon goverument or estab-
lish one which will be allowed freedom
of action in negotiations. Should Chili
refuse to allow formation of government
not pledged to consent to cession of ter-
ritory, he is to express dissatisfaction of
the United States. The United States
recognizes Chili's right to adequate in-
demnity and guarantee, l)ut that the ex-
ercise of the right of absolute conquest
is dangerous ; and the United States
think that Peru has the right to demand
an opportunity to find indemnity and
guarantee without cession of territory.
The prohibition of the formation of a
government is practical extinction of
the state. If good offices are refused on
this basis, the United States holds itself
free to appeal to the other Republics of
the continent to join with it. Instruc-
tions given in accordance, and a tempo-
rary convention counseled.

Congress of American Governments : au-
thorized to return home by way of Ar-
gentine Republic and Brazil and to urge
the Governments of those countries to
accept our invitation to such congress.

Charge ; instructed to assume duties as,
on his arrival at Santiago.

Claims of the United States citizens vs.
Peru ; Cochet claim and Landreau claim.
Explains position of the United States
regarding them, in order to correct mis-
statements which are being circulated
by the press. If Chili should acquire
territory from Peru, it is expected that
whatever rights Mr. Landreau may have
in such territory will be respected by
Chili. Correspondence with minister at
Lima inclosed.

354

CHAP. III.]

PERU.

[§59.

Mr. Frclinghuysen
to Mr. Trescot
(telegram).

Same to same (tele-
gram).

Mr. Frelinghuysen
to Mr. Martinez.

Mr. Frelinghuysen
to Mr. Trescot
(No. 6).

Mr. Frelinghuysen
to Mr. Martinez.

Mr. Evarts to Mr.
Christiancy (No.
4).

Same to same (No.
20).

Same to same (No.
24).

Mr. Evarts to Mr.

Tracy.
Same to same ....

Mr. Evarts to Mr.
Christiancy (No.
29).

Same to same (No.
30).

Mr. F. W. Seward
to Mr. Chris-
tiancy (No. 32).

1881;

Jan.

187£
Apr.

Juno

June

July

Aug.

Pacific influence; informs him that same
should be exerted, and all issues which
might lead to his withdrawal from Chili
avoided.

Impartial extension of friendly offices to
both Republics ; exertion of pacific in-
fluence, and avoidance of possibly offen-
sive issues, are desired by the President.
Directs him not to return, via Buenos
Ayres. Calderon difficulty can be set-
tled here.

Arrest of President Calderon; requested to
repeat in writing the assurance given
orally by him that it was not instigated
by an unfriendly feeling towards the
United States.

(Quoted, supra, $ 45.)

Arrest of Calderon; note giving assurance
that it was not intended as an afi"ront to
the United States received with gratifi-
cation.

Approves action of Mr. Gibbs in reporting
relative to the war ; expresses gratifica-
tion at the decision of Peru in deciding
to maintain strict neutrality.

Approves action in behalf of neutral rights
reported in his No. 7 ; European capital-
ists are seeking to bring about an un-
due observance of such rights during
present war; the United States not dis-
posed to bave belligerent rights abridged
in behalf of neutrals; opinion of Attor-
ney-General Stanbery justifying bom-
bardment of unfortified places inclosed.
(Quoted, infra, § 228.)

Privateering projects of Bolivia; copy of
Department's No. 12 to the United States
minister at La Paz inclosed; instructed
to inform Peru that the United States
does not intend to j^ermit any violation
of its neutrality laws.

Note of 24th instant, inclosing uumifcsto
vindicating Peru's cause, received.

Note of 16th instant, transmitting report
made to Peruvian Congress by minister
forforeignaff'airs, which sets forth antece-
dents of war, received; thanks.

Blockade of Iquique ; views and proceed-
ings set forth in his No. 34 ajjproved ;
action he shonld t;ike in case the block-
ade should at any time prove ineffectual,
stated, (/n/ra, § 361.)

Mediation of Colombia for cessation of hos-
tilities between the belligerents; in-
structed to express to Colombian envoy,
who will visit Lima to proffer media-
tion, the friendly solicitude of the United
States as to the result of his mission.

Mediation of the United States for cessa-
tion of hostilities ; approves Mr. Chris-
tiancy's reserve in conversing with Col.
H. N. Fisher, who has no official connec-
tion with Government of the United
States ; Department imparted to him its
position ou the subject of mediation ;
reply to No. 37.

§ 59.]

INTERVENTION.

[chap. III.

Mr. F.W. Seward to
Mr. Christiancy
(No. 3:5).

Same to same (No.
34).

Mr. F. W. Seward
to Mr. Tracy.

Mr. F. W. Seward
to Mr. Chris-
tiaucy (No. 36).

Mr. Hunter to Mr.
Tracy.

Same to same

Mr. Hunter to Mr.
Christiancy (No.
39).

Mr. Evarts to Mr.
Cliristiancy (No.
40).

Mr. F. W. Seward
to Mr. Tracy.

Mr. F. W. Seward
to Mr. Christiancy
(No. 42).

Mr. Hay to Mr.
Christiancy (No.
47).

Mr. Evarts to Mr.

Christiancy

(telegram).
Same to same (No.

55).

356

1879.
Aug. 18

Aug. Iri
Aug. 19

Aug. 25

Sept. 10
Sept. 10

Oct. 1

Oct. 13

Oct. 21

Oct. 22

Nov. 26

1880.
Jan. 24

Jan. 26

Mr. Christiancy's efforts and suggestions
in behalf of cessation of war approved ;
reply to No. 36.

Blockade of Iquique : instruction to con-
sul, inclosed in his No. 39, in regard to,
approved.

Transportation of munitions of war across
the Isthmus of Panama : his note of 24th
ultimo, asking the Department to re-
quest Colombia to permit same, will re-
ceive consideration.

Bombardment of Iquique : views of lega-
tion and its dispatch to consul at Iqui-
que upon the suljject approved ; reply to
No. 41.

Note of 4th instant, narrating events of
war, received, and will be duly consid-
ered.

Transportation of munitions of war across
the Isthmus of Panama; note of 22d
ultimo, stating that Colombia has dis-
approved action of Panama in prohibit-
ing such transportation, received.

Views which have been expressed by min-
ister, in conversation in Lima, concern-
ing peace question, approved ; the
United States does not tender its good
offices for peace, but will not hesitate to
use them tor that purpose if called upon
by belligerents to do so ; tlie United
States will not engage in any interven-
tion which is not solicited, or which is
in disparagement of belligerent rights;
Mr. Pettis's unauthorized and rash ex-
periment in visiting Lima and Santiago
has had some good effects ; statements in
Chilian newspapers adverse to Mr. Pettis
regarded as unfounded.

Pacific instructions requested iu his No. 59
have already been given ; approves ac-
tion reported in his No. 59 ; instructs him
as to correction of any wrong impression
which may have been created by Mr.
Pettis or Mr. Fisher as to policy of the
United States; he may pledge immedi-
ate action by the United States for peace,
provided no other Government be in-
vited to mediate.

Betrayal of Peru by Bolivia ; documents
tending to show efforts of Chili to in-
duce same, which accompanied his note
of 17th instant, will be considered.

Approves his sugjiestion to Mr. Osborn as
to his course ; Department adheres to
policy indicated in previous instruc-
tions; reply to No. 62^.

Communication between legation and De-
partment ; if same should be cut off by
Chili, he should not adopt any special
means of communication, except in case
of absolute necessitv.

Recognition of Pi^rola's government : 322
leaves time and manner of, to minister's
discretion. (See hi/ra § 70.)

Recognition of Pi^rola's government:
question of, is left to ministerB.

CHAP. III.]

PERU.

[§59.

Mr. Evarts to Mr.
Tracy.

Mr. Evai'ts lo Mr.
Christiaucy (No.
57).

Mr. Evarts to Mr.

Christiancy (No.

58).
Same to same (No.

63).

Mr. Evarts to Mr.
Calderon.

Same to same .

Mr. Evarts to Mr.
Christiancy (No.
64).

239 Same to same (No.
65).

1880.
Jan. 31

Feb. 4

Feb. 18
Mar. 1

Mar. 1

Mar. 2

Same to same (No. Mar. 10
69).

Mr. Evarts to Mr.
Tracy.

Mar. 22

Recognition of Pi^rola's government: cer-
emonial letter received ; friendly expres-
sions.

Recognition of Pi6rola'8 government; in-
structed to recognize Pi<Srola'8 govern-
ment if he has not already done so ; note
of the 3l8t ultimo from Department to
Peruvian charg(?, inclosed.

Damages to American projjerty by Chilian
forcesat Lobos Island ; action of legation
as reported in No. lO.'j approved.

Denies right of Peru to seize neutral ves-
sels loaded with nitrates taken from beds
which belong to Peru, but which are now
in military possession of Chili, as treaty
provides that free ships make free goods;
instructed to enjoin Peru not to enforce
her claimed rights ; reply to No. 106 ;
notes to foreign ofilice in reply to its cir-
culars inclosed for delivery.

Neutral vessels loaded with nitrate taken

• from beds which belong to Peru and are
now in military possession of Chili ; right
claimed by Chili to seize same ; United
States legation at Lima will inform Peru
of Department's views on subject ; reply
to note of 14th January.

Blockades established by Chili at Peruvian
ports: inef3Sciency of ; if Chili seizes any
American vessel for entering a port
which is insufficiently blockaded she
will be required to make reparation ; re-
ply to note of 14th January.

Blockade of Mollendo by Chilian squadron :
legation's instruction to consular agent
at Arica relative to. ap])roved : instructed
to take no notice of any manifesto on
subject unless it is addressed to him in
his official capacity.

Belligerent rights of Pern ; question as to
authority of consul at Iquique, which is
now in possession of the Chilians, to grant
clearances to vessels loaded with nitrates
taken from beds belonging to Peru, but
now in military possession of Chili ; No.
112 received ; consuls have no right to
grant clearances under any circum-
stances ; local authorities alone have such
rights; when these authorities grant
vessels clearances consul should deliver*
to such vessels their papers ; consuls can-
not gainsay opinion of the existing au-
thority at his port as to what may be
lawfiiily exported ; Peru's resentment at
exportation of these nitrates is natural,
but her assertion of right to seize neu-
tral vessels loaded with them is contrary
public law and will not bo admitted by
foreign Governments.

Recognition of government of Pi6rola; ac-
tion of legation, as reported in 115, ap-
proved.

His note of 9th instant, denying rumor of
desertion of Peru by Bolivia, acknowl-
edged.

357

336
i 344

§59.]

INTERVENTION.

[chap. III.

Mr. Evarts to Mr.
Chriatiaucy (No.
76).

Same to same (No.
77).

Mr. Evarts to Mr.
Tracy.

Mr. Hay to Mr.

Christiancy (No.
90).

Mr. Evarts to Mr.
Christiancy (No.
93).

Mr. Hay to Mr.

Christiancy (No.

97),
Same to same (No.

99).

Same to same (No.
102).

Same to same (No.
108).

Mr. Evarte to Mr.
Garcia.

Mr. Evarts to Mr.
< Christiancy (No.
109).

Mr. Evarts to Mr.
Garcia.

Mr. Evarts to Mr.
Christiancy, No.
112).

Mr. Hay to Mr.
Garcia.

35$

1880.
Apr. 19

Apr. 23

Apr. 28

Jnne 30

July 30

Aug. 16

Aug. 25

Nov. 9

Nov. 13

Nov. 27

Dec. 1

Dec. 13

Dec. 22

Menacing and violation of neutral rights
by Chili; protest will be addressed to
Chilian minister here against injury to
the United States citizens; instructed to
protest to Peru, in event of her resorting
to wanton destruction of life and prop-
eity, as Chili has done ; reply to 140.

Exchange of prisoners of war between Bo-
livia and Chili ; No. 3 to the United States
minister at La Paz inclosed.

Blockade of Callao by Chilians and open-
ing of other ports by Peru instead : an-
nouncement of, received and communi-
cated to Treasury.

Charges preferred by Chili against Mr.
Merriam, consul at Iquique, of assisting
Peru in the war ; instructed to investi-
gate the same, and if they prove well
founded, to remove Mr. MeiTiam.

Mode suggested by United States minister
at Santiago of rendering good offices of
United States available for cessation of
hostilities approved ; confirms Depart-
ment's telegram of 29th instant.

Mediation; advises him of disposition of
Chili to accept our mediation and asks
■what is the disposition of Peru.

Iquique ; charges vs. Consul Merriam of
having assisted Peru in the war, pre-
ferred by Chili ; approves course reported
in his 175.

Outrage perpetrated upon the United
States consul and flag at Arica by Chilian
soldiery: further information relative to,
requested ; reply to No. 183.

Charges preferred against consul at Iqui-
que of assisting Peruvians iu the war;
approves investigation of legation ; in-
structed to give proper attention to any
further evidence in the matter which
may be adduced.

Mediation of the United States between
Peru and Chili : advises him of failure
of; regret and chagrin of Department;
United States will welcome any further
opportunity it may have presented to it
to promote restoration of peace ; reply
to note of 25th ultimo.

Neutrals : protection of the lives and prop-
erty of, iu the event o'" an attack by the
Chilians upon Lima; g'ves text of De-
partment's telegram of iPth instant to
legation at Santiago.

Mediation of the United States between
Peru and Chili ; failure of peace negoti-
ations regretted ; note of 27th ultimo re-
ceived.

Peace negotiations : failure of, regretted ;
the United States still stands ready to
do whatever it properly can to bring
about peace ; reply to No. 200.

Mediation of the United States between
Peru and Chili: failure of; his note of
18th instant transmitting circular from
his Government censuring Chili re-
ceived.

CHAP. III.]

PERU.

[§59.

Mr. Evarts to Mr.
Christiancj' (No.
119).

Same to same (No.
12;^).

Same to same (No.
129).

Mr. Blaiue to Mr.

Christiancy (No.

143;.
Same to same (No.

144).

Mr. Blaine to Mr.
Hurlbut(No.2).

Same to same (No.
7).

Mr. Blaine to Mr.
Elmore.

Same to same .

Mr. Hitt to Mr.
Elmore.

1881.
Jau. 25

Feb. 10

Feb. 17

May 9

May 12

June 15

Aug. 4

Aug. 27

Aug. 31

Oct. 13

Neutrals : jeopardization of lives and prop-
erty of, by Peru in sending adrift vessels
loaded with explosive materials ; in-
structed to remonstrate if bo sball as-
certain tbat such course has been pur-
sued by Peru. (Infra ^ 349.)

Desire of United States to bring about
peace; instructed to urge same upon
Peruvian Government, and upon such
Chilian officers as he may meet ; Peru-
vians having evacuated Lima and Callao,
Peru desires foreign aid in behalf of
peace, as appears from a telegram just
received from the Peruvian minister
here.

Scheme of the Soci6t6 g6n^rale de credit in-
dustrial et commercial for liquidation of
financial obligations of belligerents ; au-
thorized to submit the same for consid-
eration in connection with discussion of
peace question ; may advise Mr. Osborn
and Mr. Adams.

Calderon government: authorizes recogni-
tion of.

Forced loans: non-liability of Americans
in Peru to ; his views as reported in his
No. 182 approved.

Peace question ; instructed to encourage
Peruvians to accept reasonable condi-
tions, and to Impress upon Chilian au-
thorities in Peru the advantages of lib-
eral treatment of Peru by their Govern-
ment ; course which Peru should pursue
so as to avoid loss of territory in indem-
nification of Chili ; directed to aid Peru
in pursuing this course ; United States
would assist the execution of any satis-
factory plan for satisfying Chili's de-
mands by means of money ; No. 2 to
legation at Santiago inclosed.

Claims of United States citizens v*. Peru,
growing out of contracts; Cochet claim
and claim of John C. Landreau ; in-
structed to report on former, and to de-
mand justice in the case of the latter;
in treaty of peace between Chili and
Peru, provision must be made for recog-
nition by Chili of Landreau's claim us a
prior lien upon any territory which
Peru may be required to cede to Chili ;
sets forth denial of justice in Mr. Lan-
dreau's case.

Recognition of Mr. Elmore ; credentials may
be presented at a future time; will be
informally recognized if he will deliver
office cdpy of his credentials.

Recognition of Mr. Elmore ; copy of creden-
tials received; trust to be able before
long to arrange for his presentation to
the President ; reply to note of 29th in-
stant.

Peace question ; may call at Department
at any time for an interview ; reply to
note of 11th instant.

359

§59.]

INTERVENTION.

[chap. in.

366

367

371

374

375

Mr. Blaine to Mr.
Hurlbut (tele-
gram).

Same to same (tele-
gram).

Same to same (No.
17).

Same to same (No.
18).

Same to same (No.
19).

378 Same to same (tele- Nov. 26
gram).

379

380

382

1881.
Oct. 27

Oct. 31

Nov. 17

Nov. 19

Nov. 22

Mr. Blaioe to Mr. | Nov. 26

Elmore.
Mr. Blaine to Mr. Nov. 30

Hurlbut (No. 21).

Same to same (No. Dec. 3
25).

Financial schemes; " Influeuceof yourposi-
tion must not be uhchI in aid of Credit In-
dustrie! or any other financial or specula-
tive association."

Calderou government ; "Continue to recog-
nize Calderon government until other-
wise specially instructed ; acknowledge
receipt."

Claim of United States citizens rs. Peru;
Cochet claim and Landreau claim ; the
former is not proper for presentation ;
United States citizens in purchasing the
claim of a Peruvian against his Govern-
ment acquires no more rights than the
Peruvian had, and as he had no right to
intervention of United States, such right
did not pass to the purchasers of his
claim ; Landreau claim should be witti-
heldfrom presentation until opportunity
for its adj ustment offers ; course reported
in his No. 12 approved ; condemns con-
duct of J. R. Shipherd, attorney for the
Cochet claims.

Financial schemes: explains Department's
telegram of 27th ultimo ; minister's posi-
tion in regard to, for restoration of Peru
should be a negative one ; in case an op-
portunity arises for us to be useful in
abetting such scheme, minister should
take no important step without instruc-
tions.

Peace question ; disai^proves memorandum
addressed by him to Admiral Lynch, and
his note to Pi6rola's secretary, and the
convention he concluded for establish-
ment of naval stations at Chirabote, and
his telegram to legation at Buenos Ayres
requesting that a minister be sent by
Argentine Republic to Peru ; instructed
to recognize Calderon government, or,
if none such exist, to remain inactive at
Lima until receipt of further instruc-
tions ; in view of differences between
him and his colleague at Santiago a
special envoy will be sent to arrange set-
tlement of peace question.

Peace question; "Special envoy leaves
Washington for Peru immediately ; con-
tinue recognition of Calderon govern-
ment."

Peace question ; note of 18th instant re-
ceived.

Relieves him of negotiations for settlement
of peace question; informs him as to
appointment and powers of Mr. Trescot
and Mr. Walker Blaine to conduct such
negotiations ; he will be expected to aid
this special commission.

Coaling stations ; strongly disapproves
protocol concluded by hini with Calderon
government for cession of such stations
to the United States, and rebukes him
for concluding it ; railway grant ; se-
verely reprimands him for obtaining
same for himself from Peru ; reply to
No. 19.

360

CHAP. III.]

CUBA.

[§60.

383

394

396

428

Mr. Blaine to Mr.
Hurlbut (No. '26).

1881.
Dec. 5

Mr. Blaine to Mr.

Morton (No. 30).

Same to same (tele-
gram).

Mr. Evarts to Mr.
Suarez.

Sept.

Nov. 14

1879.
Feb. 17

Cochet heirs : Claim vs. Pern, upon which i 579
Peruvian company's scheme is liased ; !
No. '25 received; ministi-r's action ap- |
proved; indecency and dishonor of Mr. '
Shipherd, the agent of the company ;
eminent New York gentlemen, who are al-
leged to belong to the company, are prob-
ably as ignorant of the usiof their names
as Mr. Blaine was of the absnrd state- ,
ments attributed to him by Mr. Shipherd. j

Chili-Peruvian war ; declination of the 597
United States to enter into negotiations
with European powersfor joint interven-
tion for peace ; reply to No. 6. i

Chili-Peruvian war: full account of any 599
interview he has had recently with
French Government relative to, and es- i
pecially any relating to, recognition of I
Peruvian minister, requested. |.

War iademnity : acknowledges letters rel- I 701
ative to, and says ministers to Chili and I
Peru have been informed of the proposi- • '
tion of the societ.6 relative to payment
of; the United States is ready to aid in
bringing about peace.

(3) Cuba.
§60.

" In the war between France and Spain, now commencing, other inter-
ests, peculiarly ours, will in all probability be deeply involved. What-
ever may be the issue of this war as between those two European powers,
it may be taken for granted that the dominion of Spain upon the Ameri-
can continents, north and south, is irrevocably gone. But the ishmds
of Cuba and Porto Rico still remain uoininally, and so far really, de-
pendent upon her, that she yet possesses the power of transferring her
own dominion over them, together with the possession of them, to
others. These islands, from their local position are natural ai)pend-
ages to the North American continent, and one of them (Cuba) almost
in sight of our shores, from a multitude of considerations has become
an object of transcendent importance to the commercial and political
interests of our Union. Its commanding position, with reference to the
Gulf of Mexico and the West India seas; the character of its popula-
tion ; its situation midway between our southern coast and the island
of San Domingo; its safe and capacious harbor of the Havana, fronting
a long line of our shores destitute of the same advantage; the nature
of its productions and of its wants, furnishing the supplies and needing
the returns of a commerce immensely profitable and mutually beneficial,
give it an importance in the sum of our national interests with which
that of no other foreign territory can be compared, and little inferior to
t;hg,t which binds the 'different members of this Union together. Such,

361

J 60.] INTERVENTION. [CHAP. III.

indeed, are, between the interests of that island and of this country,
the g:eo<;rai)hical, commercial, moral, and political relations formed by
nature, gathering, in the process of time, and even now verging- to ma-
turity, that, in looking forward to the probable course of events for the
short period of half a century, it is scarcely i^ossible to i^esist the con-
viction that the annexation of Cuba to our Federal Republic will be in-
dispensable to the continuance and integrity of the Union itself.

'' It is obvious, however, that for this event we are not yet prepared.
Numerous and formidable objections to the extension of our territorial
dominions beyond sea present themselves to the first contemplation of
the subject; obstacles to the system of policy by which alone that re-
sult can be compassed and maintained, are to be foreseen and sur
mounted, both from at home and abroad; but there are laws of polit-
ical as well as of physical gravitation; and if an apple, severed by the
tempest from its native tree,* cannot choose but fall to the ground, Cuba,
forcibly disjoined from its own unnatural connection with Spain, and.
incapable of self-support, can gravitate only towards the Xorth Amer-
ican Union, which, by the same law of nature, cannot cast her off from
its bosom.

" In any other state of things than that which springs from this incip-
ient war between France and Spain, these considerations would be
premature. They are now merely touched upon to illustrate the posi-
tion that, in the war opening upon Europe, the United States have
deep and important interests involved, peculiarly their own. The con-
dition of Cuba cannot but depend upon the issue of this war. As an
integral part of the Spanish territories, Cuba has been formally and
solemnly invested with the liberties of the Spanish constitution. To
destroy those liberties, and to restore, in the stead of that constitution,
the dominion of the Bourbon race, is the avowed object of this new in
vasion of the Peninsula. There is too much reason to apprehend that,
in Spain itself, this unhallowed purpose will be attended with immedi-
ate, or at least with temporary success. The constitution of Spain will
be demolished by the armies of the Holy Alliance, and the Si)anish na
tion will again bow the neck to the yoke of bigotry and despotic sway.
Whether the purposes of France, or of her continental allies, extend
to the subjugation of the remaining ultramarine possessions of Spain
or not, has not yet been sufficiently disclosed. But to confine ourselves
to that which immediately concerns us — the condition of the Island of
Cuba — we know that the republican spirit of freedom prevails among
its inhabitants. The liberties of the constitution are to them rights in
possession ; nor is it to be presumed that they will be willing to surren-
der them, because they may be extinguished by loreign violence in the
parent country. As Spanish territory, the island will be liable to in-
vasion from France during the war; and the only reasons for doubting
whether the attempt will be made, are the probable incompetency of the
French maritime force to effect the conquest, and the probability that

CHAP. III.] CUBA. [§ 60.

its accomplishment would be resisted by Great Britain. In the mean
time, and at all events, the condition of the island iu regard to that of
its inhabitants is a condition of great, imminent, and complicated dan-
ger ; and without resorting to speculation upon what such a state of
things must produce upon a people so situated, we know that its ap-
proach has already had a powerful effect u|)on them, and thatthe question,
what they are to do upon contingencies daily pressing upon them, and
ripening into reality, has for the last twelve months constantly excited
their attention and stimulated them to action. Were the population of
the island of one blood and color, there could be no doubt or hesitation
with regard to the course which they would pursue, as dictated by their
interests and their rights ; the invasion of Spain by France would be the
signal for their declaration of independence. That even in their present
state it will be imposed upon them as a necessity is not unlikely; but
among all their reflecting men it is admitted,' as a maxim fundamental to
all deliberation upon their future condition, that they" are not competent
to a system of permanent self-dependence; they must rely for the sup])ort
of protection upon some force from without ; and in the event of the
overthrow of the Spanish constitution, that support can no longer be
expected from Spain — their only alternative of dependence must be
upon Great Britain or upon the United States.

" Hitherto the wishes of this Government have been thatthe connec-
tion between Cuba and Spain should continue as it has existed for
several years ; these wishes are known to the principal inhabitants of
the island, and instructions, copies of which are now furnished you,
were some months since transmitted to Mr. Forsyth, authorizing him in
a suitable manner to communicate them to the Spanish Government.
These wishes still continue, so far as they can be indulged with a ra-
tional foresight of events beyond our control, but for which it is our
duty to be prepared. If a Government is to beim[:osed by foreign vio-
lence upon the Spanish nation, and the liberties which they have as-
serted by their constitution are to be crushed, it is neither to be expected
nor desired that the people of Cuba, far from the reach of the oppress
ors of Spain, should submit to be governed by them. Should . the
cause of Spain itself issue more propitiously than from its present pros-
pects can be anticipated, it is obvious that the trial through which she
must pass at home, and the final loss of ail her dominions on the Amer
ican continents, will leave lier unable to extend to the Island of Cuba
that i)rotection necessary for its internal security and its outward de
fense.

" Great Britain has formally withdrawn from the councils of the Eu-
ropean alliance in regard to Spain ; she disapproves the war which they
have sanctioned, and which is undertaken by France, and she avows her
determination to delend Portugal against the ap})lication of the prin
ciplesupon which the invasion of Spain raises its only pretense of right.

363

§ 60.] INTERVENTION. [CHAP. III.

" To the war as it comnjeoces she has declared her intention of re-
maining neutral ; but the spirit of the British nation is so strongly and
with so mucli unanimity pronounced against France, their interests are
so deeply involved in the issue, their national resentments and jeal-
ousies will be so forcibly stimulated by the progress of the war, what-
ever it miy be, that, unless the conflict should be as short and the issue
as decisive as that of which Italy was recently' the scene, it is scarcely
possible that the neutrality of Great Britain should be long maintained.
The prospect is that she will soon be engaged on the side of Spain ; but,
in making common cause with her, it is not to be supposed that she
will yield her assistance upon principles altogether disinterested and
gratuitous. As the price of her alliance, the two remaining islands of
Spain in the West Indies present objects no longer of much possible
value or benefit to Spain, but of such importance to Great Britain that
it is impossible to suppose her indifferent to the acquisition of them.
The motives of Great Britain for desiring the possession of Cuba are
so obvious, especially since the independence of Mexico and the annexa-
tion of the Floridas to our Union; the internal condition of the island
since the recent Spanish revolution, and the possibility of its continued
dependence upon Spain, have been so precarious ; the want of protec-
tion there, the power of affording it possessed by Great Britain, and
the necessities of Spain, to secure, by some equivalent, the support of
Great Britain for herself, have formed a remarkable concurrence of pre-
dispositions to the transfer of Cuba, and during the last two years ru-
mors have been multiplied that it was already consummated. We have
been confidently told, by indirect communication from the French Gov-
ernment, that more than two years since Great Britain was negotiating
with Spain for the cession of Cuba, and so eager in the pursuit as to
have offered Gibraltar, and more, for it in exchange. There is reason
to believe that, in this respect, the French Government was misin-
formed ; but neither is entire reliance to be placed on the declaration
lately made by the present British secretary for foreign affairs to the
French Government, and which, with precautions indicating distrust, "
has been also confidentially communicated to us, viz, that Great Britain
would hold it disgraceful to avail herself of the distressed situation of
Spain to obtain possCvSsion of any portion of her American colonies.

"The object of this declaration, and of the communication of it here,
undoubtedly was to induce the belief that Great Britain entertained
no purpose of obtaining the possession of Cuba ; but these assurances
were given with reference to a state of peace then still existing, and
which it was the intention and hope of Great Britain to preserve. The
condition of all the parties to them has since changed, and however
indisi)o.sed the British Government might be ungenerously to avail
themselves of the distress of Spain to extort from her any remnant of
her former i)ossessions, they did not forbear to take advantage of it by
order of reprisals given to two successive squadrons dispatched to the
364

CHAP. III.] CUBA. [§ 60.

West Indies, and stationed in immediate proximity to the Island of
Cuba.

" By measures thus vigorous and peremptory, they obtained from
Spain an immediate revocation of the blockade which her generals
had proclaimed on the coast of Terra Firma, and ])ledges of repara-
tion for all the captures of British vessels made under cover of that
military fiction. They obtained also an acknowledgment of many
long-standing claims of British subjects upon the Spanish Government,
and promises of payment of them as a part of the national debt. The
whole amount of them, however, as well as that of the reparation and
indemnity promised for the capture of British property under the
blockades of General Morales and by the Porto Rico privateers, yet
exists in the form of claims ; and the whole mass of them now is ac-
knowledged claim, for the satisfaction of which pledges have been
given to be redeemed hereafter ; and for which the Island of Cuba may
be the only indemnity in the power of Spain to grant, as it would un-
doubtedly be to Great Britain the most satisfactory indemnity which
she could receive.

"The war between France and Spain changes so totally the circum-
stances under which the declaration above mentioned of Mr. Canning
was made, that it may, at its very outset, produce events under which
the possession of Cuba may be obtained by Great Britain without even
raising a reproach of intended deception against the British Govern-
ment for making it. An alliance between Great Britain and Spain may
be one of the first fruits of this war. A guarantee of the island to
Spain may be among the stipulations of that alliance; and in the event
either of a threatened attack upon the island by France, or of attempts
on the part of the islanders to assume their independence, a resort to
the temporary occupation of the Havana by British forces may be among
the probable expedients through which it may be obtained, by concert
between Great Britain and Spain herself. It is not necessary to point
out the numerous contingencies by which the transition from a tempo-
rary and fiduciary occupation to a permanent and proprietary posses-
sion may be effected.

"The transfer of Cuba to Great Britain would be an event unpropi-
tious to the interests of this Union. The opinion is so generally enter-
tained, that even the groundless rumors that it was about to be accom-
plished, wliich have spread abroad, and are still teeming, may be traced
to the deep and almost universal feeling of aversion to it, and to the
alarm which the mere probability of its occurrence has stimulated. The
question both of our right and of our power to prevent it, if necessary
by force, already obtrudes itself upon our councils, and the Adminis-
tration is called upon, in the performance of its duties to the nation, at
least, to use all the means within its competency to guard against and
forefend it.

365

§ 60.] INTERVENTION. [CHAP. III.

It will b.' among the primary objects requiring your most earnest and
unremitting attention to ascertain and report to us every movement of
negotiation between Spain and Great Britain upon this subject. We
cannot, indeed, prescribe any special instructions in relation to it. We
scarcely know wbere you will tiud the Government of Spain ujjon your
arrival in the country, nor can we foresee with certainty by whom it
will be administered. Your credentials are addressed to Ferdinand, the
King of Spain under the constitution. You may find him under the
guardianship of the Cortes, under the custody of an army of faith, or
under the protection of the invaders of his country'. So long as the
constitutional Government may continue to be administered in his name,
your official intercourse will be with his ministers, and to them you will
repeat what Mr. Forsyth has been instructed to say, that the wishes of
your Government are that Cuba and Porto Eico may continue in con-
nection with independent and constitutional Spain.

" You will add that no countenance has been given by us to any
{projected plan of separation from Spain which may have been formed
in the island. This assurance becomes proper, as by a late dispatch
received from Mr. Forsyth he intimates that the Spanish Government
have been informed that a revolution in Cuba was secretly preparing,
fomented by communications between a society of Freemasons there
and another of the same fraternity in Philadelphia. Of this we have
no other knowledge; and the societies of Freemasons in this country
are so little in the practice of using agency of a political nature on any
occasion, that we think it most probable the information of the Spanish
Government in that respect is unfounded. It is true that the Freema-
sons at the Havana have taken part of late in the politics of Cuba, and,
so far as it is known to us, it has been an earnest and active part in
favor of the continuance of their connection with Spain. While dis-
claiming all disposition on our part either to obtain possession of Cuba
or Porto Rico ourselves, you will declare that the American Govern-
ment had no knowledge of the lawless expedition undertaken against
the latter of those islands last summer."

Mr. Adams, Sec. of State, to Mr. Nelson, Apr. 28, 1823; MSS. Inst. Ministers;
pnblishefl in Br. and For. St. Pap. (185.V'4), vol. 44, p. 138. Portions of
these instmctions are in 5 Am. St. Pap. (For. Pel.), 408.

" With Europe we have few occasions of collision, and these, with a
little prudence and forbearance, may be generally accommodated. Of
the brethren of our own liemisi)here, none are yet, or for an age to come
will be, in a shape, condition, or dis])osition to-war against us. And
the foothold which the nations of Europe had in either America is slip-
ping from under tliem, so that we shall .soon be rid of their neighbor-
hood. Cuba alone seems at present to hold up a speck of war to us.
Its possession by Great Britain would indeed be a great calamity to us.
Could we induce ];er to join us in guai-antoeing its independence against
all the world, excrpt Spain, it would be nearly as valuable as if it were
our own. But should she take it, I would not immediately go to war

366

CHAP. III.] CUBA. • [§ GO.

for It ; because the first war on other accounts will give it to ns. or the
iislaud will give itself tons when able to do so. While no duty, there-
fore, calls on us to take i)art in the present war of Europe, and a golden
harvest ofters itself in reward for doing nothing, ptace and neutrality
seem to be our duty and interest. We inaj gratify ourselves, indeed,
with a neutrality as partial to Spain as would Uv Justitiable without giv-
ing cause of war to her adversary. We might and ought to avail our-
selves of the happy occasion of procuring and cementing a cordial re-
conciliation witli her by giving assurance of every friendly office which
neutrality admits, and especially against all ap])rehension of our inter-
meddling in the quarrel with her colonies. And I expect daily and con-
fidently to hear of a spark kindled in France which ^vill emi)loy her at
home and relieve Spain from all further apprehensions of danger."

Mr. Jefferson to President Monroe, June 11, 1823; 7 Jeff. Works, 268. For
another portion of this letter see supra, ^ 45 ; see also Mr. Jefferson to Presi-
dent Mouroe, October 24, 1823, quoted supra, § hi.

"I had supposed" (when writing a former letter) "an English inter-
est there (in Cuba) quite as strong as that of the United States, and
therefore that to avoid war and keep the island open to our own com-
merce, it would be best to join that power in mutually guaranteeing its
independence. But if there is no danger of its falling into the posses-
sion of England, I must retract an opinion founded on an error of fact.
We are surely under no obligation to give her gratis an interest which
she has not; and the whole inhabitants being averse to her, and the
climate mortal to strangers, its continued military occupation by her
would be impracticable. It is better, then, to lie still, in readiness to
receive that interesting incorporation when solicited by herself, for cer-
tainl3' her addition to our confederacy is exactly what is wanted to round
our power as a nation to the point of its utmost interest."

Mr. Jefferson to Mr. Monroe, President, June 23, 1823; Monroe Pap., Dep. of
State; 7 Jeff. Works, 299. See supra, $$ 45, 57.

Instructions were sent, under direction of the President (Mr. J. Q.
Adams), by Mr. Clay, when Secretary of State, to the ministers to the
leading European Governments to announce "that the United States,
for themselves, desired no change in the political condition of Cuba ;
that they were satisfied that it should remain, open as it now is, to their
commerce, and that they could not with indifference see it i)assiugfrom
Spain to any (other) European power."

Mr. Clay, Sec. of State, to Mr. King, Oct. 17, 1825; MSS. Inst. Ministers.

"You will now add that we could not consent to the occupation of
those islands (Cuba and Porto Eico) by any other European power than
Spain under any contingency whatever."

Mr. Clay to Mr. Brown, Oct. 2."i, 1*25; MSS. lust. Miuisters.

The following is from the diary of Lord Ellenborough, under date of
February 8, 1830, Lord Ellenborough being at the time a cabinet minis-
ter in the Duke of \Yellington's admiiiistiation :

" It appears, on looking over the papers of 1<S25 and 1S2G, that so far
from our having i)rohibited Mexico and Colombia frop making any at-
tack upon Cuba, we uniformly abstained from doing anything of the

367

§ 60.] ■ INTERVENTION. [CHAP. III.

kind. The Americans declared that they could not see with indiffer-
enoe any state other than S])ain in possession of Cuba, and further,
their disposition to interpose their power should war be conducted in
Cuba in a devastating manner, and with a view to the excitement of a
servile war."

2 Diary, &c.,188.

In 1825 the British Government suggested to the Government'3 of
France and of the United States a joint declaration by the three Gov-
ernments (as an inducement to Spain to acknowledge South American
independence), that they would not permit Cuba to be wrested from
Spain. The Government of the United States held this under advise-
ment, and on France declining, the proposal was dropped.

Mr. Clay, Sec. of State, to Mr. Kiug, Oct. 25, 182.5 ; MSS. Inst. Ministers.

Subsequently, however, the United States refused to enter into any joint ar-
rangements with foreign powers as to Cuba. See further instructions in
this section, and supra, $ $ 72, 102.

As to tho attitude that would be assumed by the United States in case of the
South American states, then at war with Spain, attacking Cuba and car-
rying on the war in a "desolating manner," see letter of Mr. Claj%Sec. of
State, to Mr. Middleton, Dec. 26, 1825; MSS. Inst. Ministers.

The note of Mr. A. H. Everett, minister to Spain, on Jan. 20, 1826, to the Span-
ish minister of foreign affairs, will be found in House Ex. Doc. No. 246, 20th
Cong., Ist. eess.

" If the acquisition of Cuba were desirable to the United States,
there is believed to be no reasonable prospect of eflecting, at this
conjuncture, that object. And if there were any, the frankness of
their diplomacy, which has induced the President freely and fully to dis-
close our views both to Great Britain and France, forbids absolutely
any movement whatever, at this time, with such a purpose. This con-
dition of the great maritime powers (the United States, Great Britain,
and France) is almost equivalent to an actual guarantee of the islands
to Spain. But we can enter into no stipulations by treaty to guarantee
them."

Mr. Clay, Sec. of State, to Mr. A. H. Everett, Apr. 13, 1826: MSS. Inst. Minis-
ters. (See more fully Mr. Clay to Messrs. Anderson and Sergeant, May 8
1826, ihUl.)

Mr. (iallatin, when minister at London, tried "to impress strongly on
his (Mr. Canning's) mind that it was impossible that the United States
could acquiesce in the conquest by, or transfer of, that island (Cuba) to
any great maritime power."

Mr. Gallatin to Mr. Clay, Sec. of state, Dec. 22, 1826; 2 Gallatin's Writings, 346.

"The Government has always looked with the deepest interest upon
the fate of tho.>ie islands, but particularly of Cuba. Its geographical
position, which places it almost in sight of our southern shores, and, as
it were, gives it the command of the Gulf of Mexico and the West In-
dian seas, its safe* and capacious harbors, its rich productions, the ex-
363

CHAP. III.] CUBA. . [§ GO.

cbange of whicli for our surplus agricultural products and manufactures,
constitutes one of the most extensive and valuable bramilies of our for-
eign trade, render it of the utmost importance to the United States that
no change should take place in its condition which might injuriously
affect our political and commercial standing in tliat quarter. Other con-
siderations connected with a certain chiss of our ))opuhition, make it the
interest of the southern section of th<^ Union that no attempt should be
made in that island to tlirow off the yoke of Si>anish dependence, the
first effect of which would be the sudden emancipation of a numerous
slave population, whose result could not but be very sensibly felt upon
the adjacent shores of the United States.

" On the other hand, the wisdom which induced the Spanish Govern-
meut to relax in its colonial system, and to adopt with regard to those
islands, a more liberal policy whicli opened their ports to general com-
merce, has been so far satisfactory, in the view of the United States, as,
in addition to other considerations, to induce this Government to desire
that their possession should not be transferred from the S])auish Crown
to any other power."

Mr. Van Biireu, Sec. of State, to Mr. Van Ness, Oct. 2, 1829; MSS. lust.
MiuisterH.

See publifiitioua in 13r. and For. St. Pap., 1837-'38, vol. 2i5, 1124 ff. inchidiog:
Mr. Forsyth (Madrid) to Mr. Adams (Sec), Nov. 20, 1822; Mr. Forsyth
(Madrid) to Mr. Adams (Sec), Dec. 1:5, 1822; Mr. Adams to Mr. Forsyth,
Dec. 17, 1822 ; Mr. Forsyth to Mr. Adams, Feb. 10, 1823 ; Mr. Adams to Mr.
Nelson, Apr. 28, 1823 (suggesting- purchase of Cuba) ; Mr. Appleton (Cadiz)
to Mr. vVdaras, July 10, 1823; Mr. Nelson to Mr. Clay (Sec), July 10, 1825;
Mr. Clay to Mr. Everett, April IT), 1825; Mr. Clay to Mr. Everett, Ai)r. 27,
1825; Mr. Nelson to Mr. Bermudez, June 22, 1825; Mr. Beruiudez to Mr.
Nelson, July 12, 1825 (stating that Spain would not part with Cuba); Mr.
Everett to Mr. Clay, Sept. 25, 1825 ; Mr. Everett to Mr. Clay, Aug. 17, 1827 ;
the Spanish minister at London to the minister of state, June 1, 1827 ; Mr.
Everett to Mr. Clay, Dec. 12, 1827 ; confidential menioranilum of Mr. Everett
for the Spanish seci'etary of state, Dec. 10, 1827, stating, among other
things, that the Government of " His Catholic Majesty cannot be ignorant
of the movements commenced a few months ago by the British ministry,
in conjunction with the Spanish refugees in London, and now in the course
of execution, for the purpose of revolutionizing the Island of Cuba and
the Canaries," saying that the United States would not consent to Cuba
passing to any third power, and com])Iaining of discrimination against tho
United States; Mr. Van Buren (Sec), to Mr. Van Ness (Madrid), Oct. 2,
1829, taking the same position as lo transfer of Culia to another power ; Mr.
Van Buren to Mr. Van Ness, Oct. 13, 1830, saying that " the President does
not see on what ground he would be justified in interfering with any
attempts which the South American states might think it for their interest,
in the prosecution of a defensive war, to make upon the island in question ";
Mr. Van Ness (Madrid) to Mr. Forsyth (Sec), Aug. 16, 1836, speaking of
rumors of disquiet in Cuba; Mr. Van Ness to Mr. Forsyth, Dec. 10, 1836,
as to the etiect of Spanish political changes on Cuba; Mr. Stf^veuson (Lou-
don) to Mr. Forsyth, June 16, 1839, as to conversation with Lord Palmer-
ston, Mr. S. protesting against foreign interference in Cuba; Mr. Eaton
(Madrid) to Mr. Forsyth, Aug. 10, 1837, stating that Mr. Villiers, British
minister in Spain, disclaimed the idea of Great Britain taking Cuba.

S. Mis. 1C2— VOL. I 24 369

§ 60.] INTERVENTION. [CHAP. III.

"If, indeed, an attempt should be made to disturb them [the S]ninish
West Indies] by i)utting arms in the hands of one portion of their ])op-
uhition to destroy another, and which, in its influence, would endanger
the peace of a portion of the United States, the case might be ditferent.
Against such an attempt the United States (being informed that it was
in contemplation) have already protested, and warmly remonstrnted in
their communications, last summer, with the Government of Mexico.
But the information lately communicated to us, in this regard, was
accompanied by a solemn assurance that no such measures will, in any
event, be resorted to ; and that the contest, if forced upon them, will
be carried on, on their part, with strict reference to the established
rules of civilized warfare."

Mr. Van Biiren, Sec. of State, to Mr. Van Ness, Oct. 13, 1830; MSS. Inst.

Ministers.
The correspondence in reference to the quintuple treaty of 1842 is given in

Senate Doc. No. 223, 27th Cong., 3d sess.
As to policy of the United States in respect to Cuba, see further, Brit, and For.
St. Pap. for 1843-'4, vol. 32, 861.

"A communication from a highly respectable source has just been re-
ceived at this Department, which purports to contain information of so
serious a nature in regard to the present condition of the Island of
Cuba, that the President has come to the conclusion that it is expedient
to lose no time in ascertaining, if practicable, how far the real facts of
the case may correspond with the representations. The name of the in-
dividual from which these accounts have come is, for good reasons, with-
held. It is sufficient to say that they come from the island, and have
been transmitted from thence by a person of high standing, whose state-
ments, as we are told by those who know the source, are believed to be
entitled to as much consideration as those of any individual in Cuba.

"Acting under this belief, and influenced by the consideration that this
Government has frequently received intimations from various quarters
in regard to Cuba which give a color of probability to the statements
which have thus been recently received, the President has instructed
me to make this communication to you, to call your attention to the
matter, and to desire you to transmit all the information you possess or
can obtain in regard to it.

" The necessity of absolute secrecy in everything that relates to the in-
quiries you are directed to make, and in the transmission of their result
to your Government, has obliged us to send to Havana a special mes-
senger, who will take charge of and deliver to you in person this letter,
and who will be directed to remain with you for some short time to
afford you opportunity to prepare a reply, and to impart all the intelli-
gence which may be within your reach.

" It is proper, however, to apprise you that it is highly desirable that
there should be as little detention as possible, as the President is ex-
370

CHAP. III.] CUBA. [$ 60.

ceedingly anxious to be well informed upon the subject at the earliest
practicable moment.

'• Tlie messenger is unacquainted with the contents of this letter, and
it is not necessary or desirable that the subject of this correspondence
should be in any way made known to him. The amount of the informa-
tion which has been received is this: The writer represents himself as
bound in honor not to reveal what he has made known to his corre-
spondent in the United States to the local authorities of Cuba, for rea-
sons which can only be guessed at.

" His statements, confirmed as they appear to be in some particulars
by various recent occurrences of a public character with which you
cannot but be familiar, are considered as entitled at least to serious
attention, and to call for immediate examination and reply.

" It is rei)resented that the situation of Cuba is at this moment in the
highest degree dangerous and critical, and that Great Britain has re-
solved upon its ruin; that Spain does not or will not see this intention,
and that the authorities of the island are utterly incompetent to meet
the crisis; that, although, according to the treaty of 1817, the slave-
trade ought not to have been carried on by any subject of Spain, it has
nevertheless been continued in full vigor up to the year 1841, notwith-
standing the incessant remonstrances of the British Government, which
was better informed, it is said, from month to month, of everything
that took place in the island than the captain- general himself. It is
alleged that the British ministry and abolition societies, finding them-
selves foiled or eluded by the colonial and home governments, have
therefore resolved, not perhaps without secretly congratulating them-
selves upon the obstinacy of Spain, upon accomplishing their object in
a different method, by the total and immediate ruin of the island. Their
agents are said to be now there in great numbers, offering independ-
ence to the Creoles, on condition that they will unite with the colored
people in effecting a general emancipation of the slaves, and in con-
verting the Government into a black military Republic, under British
protection. The British abolitionists reckon on the naval force of their
Government, stationed at Jamaica and elsewhere, and are said to have .
offered two large steam ships-of-war, and to have proposed to the Vene-
zuelan general. Merino, who resides at Kingston, Jamaica, to take the
conmiand of the invading army. This is to be seconded, as is suggested,
by an insurrection of the slaves and free men of color, snpi»orted by the
white Creoles.

"If this scheme should succeed, the influence of Britain in this quar-
ter, it is remarked, will be unhmited. With 000,000 blacks in Cuba
and 800,000 in her West India Islands, she will, it is said, strike a
death-blow at the existence of slavery in the United States. Intrenched
at Havana and San Antonio, ports as impregnable as the rock of Gib-
raltar, she will be able to close the two entrances to the Gulf of Mexico,

371

§ 60.] INTERVENTION. [CHAP. III.

and even to prevent tbe free passage of the commerce of the United
States over the Bahama Banks and through the Florida Channel.

"The local authorities are believed not to be entirely ignorant of the
perils which environ them, but are regarded as so torpid as not to be
competent to understand the extent and imminency of those perils, nor
the policy by which Great Britain is guided.

" The wealthy planters are described as equally blind to the great
danger in which they stand of losing their property. They go on, it is
said, as usual, buying negroes, clamoring for the continuation of the
trade, and denouncing as seditious persons and friends of Great Britain,
the few who resist the importation of slaves and encourage the immi-
gration of free whites.

" The writer points to the census of the population of the island,
taken by authority, and just published, of which he incloses a copy;
and from the proportion between the dilferent colors he infers the prob-
ability that the white Creoles will be able to preserve their rights in the
future Etliiopico-Cuban Republic; and as to the Spaniards, he presumes
they will leave the island at once. The writer very naturally supposes
that the United States must feel a deep solicitude upon a subject which
so nearly concerns their own interests and tranquillity. He seems anx-
ious that public opinion in this country should be formed upon it, and
properly directed, and does not hesitate to express the opinion that the
mass of the white population in Cuba, in easy circumstances, including
the Spaniards, prefer, and will always prefer, the flag of the United
States to that of England.

" In thus communicating to you the substance of the statements of
this writer, you will distinctly understand that your Government neither
adopts nor rejects his speculations. It is with his statement of supposed
facts that it concerns itself; and it is expected that you will examine
and report upon them with scrupulous care, and with as much prompt-
ness as strict secrecy and discretion will permit ; and the whole of the
statements is now imparted to you, not to limit, but to guide and direct
the inquiries you are called upon to make in so delicate a matter. It is
quite obvious that any attempt on the part of England to emploj^ force
in Cuba, for any purpose, would bring on a war, involving, possibly, all
Europe, as well as the United States ; and as she can hardly fail to see
this, and probably does not desire it, there may be reason to doubt the
accuracy of the information we have received to the extent t3 which
it proceeds. But many causes of excitement and alarm exist, and the
great magnitude of the subject makes it the duty of the Government
of the United States to disregard no intimations of such intended pro-
ceedings which bear the least aspect of ])robability. The Si)anish Gov-
ernment has long been in possession of the policy and wishes of this
Government in regard to Cuba, which have never changed, and has
repeatedly been told that the United States never would permit the
occupation of that island by British agents or forces upon any pretext
372

CHAP. III.] CUBA. [§ 60.

whatever ; and that ia the event of any attempt to wrest it from her,
she might securely rely upon the whole naval and military resources of
this country to aid her in preserving or recovering it.

" A copy of this letter will be immediately transmitted to the Ameri-
can minister at Madrid, that he may make such use of the information
it contains as circumstances may appear to require."

Mr. Webster, Sec. of State, to Mr. Ciimpbell, Jan. 14, 1843; MSS. lust. Consuls;
republished in Br. and For. State Pap. (185:i-'54) vol. 44, p. 174.

The United States will resist at every hazard an attempt of any for-
eign power to wrest Cuba from Spain. " And jou are authorized to
assure the Spanish Government that in case of any attempt, from what-
ever quarter, to wrest from her this portion of her territory, she may
securely depend upon the military and naval resources of the United
States to aid her in preserving or recovering it."

Mr, Forsyth, Sec. of State, to Mr. Vail, July 15, 1840; MSS. Inst., Spain.

To same effect, Mr. Upshur, Sec. of State, to Mr. Irving, Oct. 10, 184:^, ibid. ; Mr.

Buchanan, Sec. of State, to Mr. Saunders, June 13, 1847, ibid. ; same to same,

June 17, 1848, ibid.

The United States .will not tolerate any invasions of Ciibii bv v-itizens
of neutral States.

Mr. Buchanan, Sec. of State, to Mr. Saunders, June 13, 1847 : M »s. Tusf., Spain.

For reasons why the annexation of Cuba to the United States would be benefi-
cial to the United States, Cuba, and Spaiu, see Mr. Buchanan, Sec. of
State, to Mr, Saunders, June 17, 1848; MSS. Inst., Spain.

"As to the purchase of Cuba from Spain, we do not desire to renew
the proposition made by the late Administration on this subject. It is
understood that the proposition made by our late minister at Madrid,
under instructions from this Department, or from the late President of
the United States, was considered by the Spanish ministry as a na-
tional indignity, and that the sentiment of the ministry was responded
to by the Cortes. After all that has occurred, should Spain desire to
part with the island, the proposition for its cession to us should come
from her; and in case she should make auy, you will content yourself
with transmitting the same to your Government for consideration."

Mr, Clayton, Sec, of State, to Mr, Barringer, Aug. 2, 1849; MSS. Inst., Spain.

"Mr. Rives writes that a treaty has been entered into between France,
Spain, and Great Britain to guarantee Cuba to Spaiu, but does not send
it, or its contents or date. The English charg6 gives us notice that
England has ordered her vessels to protect Cuba against the unlawful
invasion from this country, but says he knows of no treaty. Mr. Rives
has been written to for further information. It a])pears to me that such
a step on the part of Great Britain is ill advised; and if the attempts
upon Cuba shall be resumed (which I trust they will not be) any at-
tempt to prevent such expeditions by British cruisers must necessarily

373

§ 60.] INTERVENTION. [CHAP. III.

involve a right of search into our whole mercantile marine in those seas,
to ascertain who ought to be arrested and who ought to pass ; and this
would be extremely annoying, and well calculated to disturb the
friendly relations now existing between the two Governments."

President Fillmore to Mr. Webster, Sec. of State, Wasbingtou, Oct. 2, 1851; 2
Curtis' Life of Webster, p. 551.

"The information communicated by Mr. Eives, if true, may become
important ; but we must wait to learn its particulars. I doubt exceed-
ingly whether the English Government would do so rash a thing as to
interfere with American vessels on the seas, under pretense of their con-
taining Cuban invaders. This could never be submitted to. I do not
think that any attempt is likely to be made at present by these lawless
Ijeople, as I do not see where they can now raise the funds, and, there-
fore, I hope we may have no more trouble. If an official communica-
tion be made to us of such a treaty as Mr. Eives supposes may have
been entered into it will deserve close consideration. We must look
to our own antecedents. In General Jackson's time it was intimated
to Spain, by our Government, that if she would not cede Cuba to any
European power we would assist her in maintai^iiug possession of it.
A lively fear existed at that time that England had designs upon the
island. The same intimation was given to Spain, through Mr. Irving,
when I was formerly in the Department of State. Mr. J. Quincy Adams
often said that, if necessary, we ought to make war with England
sooner than to acquiesce in her acquisition of Cuba. It is indeed ob-
vious enough what danger there would be to us if a great naval power
were to possess this key to the Gulf of Mexico and the Caribbean Sea.
Before receiving your letter I had made up my mind that if this matter
of the treaty between England and France should be announced to us,
and should seem to require immediate attention, I would hasten to
Washington."

Mr. Webster, Sec. of State, to President Fillmore, Marshfield, Oct. 4, 1851 ; 2
Curtis' Life of Webster, 551.

For an account of the application of the doctrine of intervention to the West
Indies by European i)o\vers, and of the position of the United States, see
1 Phillimore Int. Law, 3ed., 600.

For Mr. Fillmore's course as to neutralitj' in respect to Cuba, see Doc. No. 41,
31st Cong., 2d Sess.

Reports made by heads of Departments on June 3 and June 19, 1851, on revolu-
tionary movements in Cuba, will bo found in Senate Ex. Doc. No. .57, Slst
Cong., 1st Sess.

'• The geographical position of the Island of Cuba, in the Gulf of Mex-
ico, lying at no great distance from the mouth of the river Mississippi,
and in the line of the greatest current of the commerce of the United
States, would become, in the hands of any i)owerful European nation,
an object of just jealousy and apprehension to the people of this coun-
try. A due regard to their own safety and interest must therefore
374

CHAP. III.] CUBA. [§ 60.

make it a matter of importance to them who shall possess and hold
dominion over that island. The Government of France and those of
other European nations were long since officially apprised by this Gov-
ernment that the United States could not see without concern that
island transferred by Spain to any other European State."

Mr. Crittenden, Acting Sec. of State, to Mr. Sartigee, Oct. 2i, 1S.>1. MSS. Notes,
France.

Joint directions by the Governments of Franceand of England totheir
ships of war to aid Spain in preventing by force adventurers of any na-
tion Irom landing with hostile intent on the Island of Cuba cannot but
be regarded by the United States with grave disai)proval, as involving
on the part of European sovereigns combined action of protectorship
over American waters

Mr. Crittenden, Acting Sec. of State, to Mr. Sartiges, Oct. 22, 1851. MSS. Notes,
France. See Mr. Webster, Sec. of State, to Mr. Sartiges, Apr. 29, 1852, ibid.

Mr. Webster, in his letter of April 29, 1852, to Count Sartiges, took
the position that " if Spain should refrain from a voluntary cession of
the island (of Cuba) to any other European power she might rely on
the countenance and friendship of the United States to assist her in the
defense and preservation of that island." This, so far as it implied a
guarantee against insurrection (in which sense it was interpreted by
Count Sartiges in his letter of July 5, 1852,) was disclaimed by Mr. Ev-
erett, who succeeded Mr. Webster as Secretary after the hitter's death.

See review of the correspondence by Mr. Trescot, South. Quar. Rev., April,
1854 ; and see, also, infra, §, 72.

" The colonies of Spain are near to our own shores. Our commerce
with them is large and important, and the records of the diplomatic
intercourse between the two countries will manifest to Her Catholic
Majesty's Government how sincerely aud how steadily the United States
has manifested the hope that no political changes might lead to a trans-
fer of these colonies from Her Majesty's Crown. If there is one among
the existing Governments of the civilized world which for a long course
of years has diligently sought to maintain amicable relations with
Spain it is the Government of the United States. Not only does the
correspondence between the two Governments show this, but the same
truth is established by the history of the legislation of this country and
the general course of the executive government. In this recent inva-
sion, Lopez and his fellow subjects in the United States succeeded in
deluding a few hundred men by a long-continued and systematic
misrepresentation of the political condition of the island and of the
wishes of its inhabitants. And it is not for the purpose of reviewing
unpleasant recollections that Her Majesty's Government is reminded
that it is not many years since the commerce of the United States
suffered severely from armed boats and vessels which found refuge
and shelter in the ports of the Spanish islands. These violators of
the law, these authors of gross violence towards the citizens of this
Kepublic, were finally suppressed, not by any effort of the Spanish au-

375

§ 60.] INTERVENTION. [CHAP. lU.

tliorities, but by the activity and vigilauce of our Navy. This, how-
ever, was not accomplished but by the efforts of several years, nor
until many valuable lives, as well as a vast amount of property, had
been lost. Among others, Lieutenant Allen, a very valuable and dis-
tinguished officer in the naval service of the United States, was killed
in an action with these banditti.

Mr. Webster, Sec. of State, to Mr. Barriiiger, Nov. 26, 1851. MSS. Inst.

Spain.
To the same effect see (J Webster's Works, 573, ff.\ 2 Curtis's Life of Webster,

557. As to such intercession, see supra, § 52.

"There is no doubt that Lord Malmesbury has justly described the
course of policy which has influenced the Government of the United
States heretofore in regard to the Island of Cuba. It has been stated
and often repeated to the Government of Spain by this Government,
under various Administrations, not only that the United States have
no design upon Cuba themselves, but that if Spain should refrain from
a voluntary cession of the island to any other European power she
might rely on the countenance and friendship of the United States to
assist her in the defense and preservation of that island. At the same
time it has always been declare<l to Spain that the Government of the
United States could not be expected to acquiesce iu the cession of Cuba
to an European i)ower. The undersigned is happy in being able to say
that the present Executive of the United States entirely approves of
this past policy of the Government, and fully concurs in the general
sentiments expressed by Lord Malmesbury, and understood to be iden-
tical with those entertained by the Government of France. The Pres-
ident will take Mr. Cramptou's communication into consideration and
give it his best reflections. But the undersigned deems it his duty at
the same tin^e to remind Mr. Crampton, and through him his Govern-
ment, that the policy of that of the United States has uniformly been
to avoid as far as possible alliances or agreements with other states,
and to keep itself free from national obligdtious, except such as affect
directly the interests of the United States themselves."

Mr. Webster, Sec. of State, to Mr. Crauipton, Apr. 29, 1852. MSS. Notes, Gr.

Brit. See Mr. Webster, Sec. of State, to Mr. Sartiges, Apr. 29, 1852. MSS.

Notes, France.
Mr. Fillmore's message of .Inly 1:3, 1852, and the accompanying documents, are

in House Ex. Doc. No. 121, 31 st Cong., 1st sess.

"The United States, on the other hand, would, by the proposed con-
vention, disable themselves from making an acquisition which might
take place without any disturbance of existing foreign relations and
in the natural order of things. The Lslantl of Cuba lies at our doors.
It commands th»^ ajiproach to the Gulf of Mexico, which wa.shes the
shores of five of our States. It bars the entrance of that great river
which drains half the Xorth American continent, and with its tributa-
ries forms the largest system of internal water communication in the
376

CHAP. III. J CUBA. [§ 60.

world. It keeps watcli at the doorway of our intercourse with Califor-
nia, by the Isthmus route. If an islaiul like Cuba, belonftinff to the
Spauish Crown, gii'ml<iil the entrance of the Thames and the Seine, and
the United States should proi)ose a convention like this to France and
En^dand, those powers wouhl assuredly feel that the disability assumed
by ourselves was far less seiious than that which we asked them to as-
sume. The opiuious of American statesmen, at difterenL times aud
under varying" circumstances, have difl'ered as to the desirableness of
the acquisition of Cuba by the United States. Territorially and com-
mercially it would in our hands be an extremely valuable possession.
Under certain contingeucies it inight be almost essential to our safety.
Still for domestic reasons, on which in a communi(;ation of this kind
it might not be proper to dwell, the President thinks that the incorpo-
ration of the island into the Union at the present time, although ef-
fected with the consent of Spain, would be a hazardous measure; and
he would consider its acquisition by force, except iu a just war with
Spain, should an event so greatly to be deprecated take place, as a dis-
grace to the civilization of the age."

Mr. Everett, Sec. of State, to Mr. Crampton, Dec. 1, 1852. MSS. No.es Gr.
Brit. See Mr. Everett aud the Cuban Question, by Mr. Trescot, 9 South,
Quar. Rev., uew series, Apr., 1854, 429. For Mr. Everett's views in full,
see infra, § 72.

To enter into a compact with European powers to the effect that the
United States, as well as the other contracting powers, would disclaim
all intention, now or hereafter, to obtain possession of Cuba, would be
inconsistent with the principles, the policy, aud the traditions of the
United States.

.Mr. Everett, Sec. of State, to Mr. Cr.impton, Dec. 3, 1852 ; MSS. Notes, Gr. Brit.,
infra, ^ 72.

" The affairs of Cuba formed a prominent topic in my last annual mes-
sage. They remain in an uneasy condition, and a feeling of alarm and
irritation on the j^art of the Cuban authorities appears to exist. This
feeling has interfered with the regular commenual intercourse between
the United States aud the island, and led to some acts of which we
have a right to com])lain. But the captain-general of Cuba is clothed
with no power to treat with foreign Governments, nor is he iu any degree
under the control of the Si)auish minister at Washington. Any com-
munication which he may hold with an agent of a foreign power is in-
formal and a matter of courtesy. Anxious to put an end to the existing
inconveniences (which seemed to rest on a misconception), I directed the
newly ai)poiuted minister to Mexico to visit Havana, on his way to
Vera Cruz. He was respectfully received by the captain-general, who
conferred with him freely on the recent occurrences, but no permanent
arrangement was effected. In the m(^an time the refusal of the cap-
tain-general to allow passengers aud the mail to be landed in certain

377

§ 60.] INTERVENTION. [CHAP. III.

cases, for a reason which does not furnish, in the opinion of this Gov-
ernment, even a j^i'ood presumptive ground for such a prohibition, has
been made the subject of a serious remonstrance at Madrid; and 1 have
no reason to doubt that due resj)ect will be paid by the Goveinment of
His Catholic Majesty to the representations which our minister has been
instructed to make on the subject.

" It is but justice to the ca[)tain-general to add that his conduct to-
ward the steamers employed to carry the mails of the United States to
Havana has, with the exceptions above alluded to, been marked with
kindness and liberality, and indicates no general purpose of interfering
with the commercial corresponcjje'hce and intercourse between the island
and this country.

" Early in the i)resent year official notes wt^re received from the min-
isters of France and England inviting the Government of the United
States to become a party with Great Britain and France to a tripartite
convention, in virtue of which the three powers should severally and
collectively disclaim, now and for the future, all intention to obtain pos-
session of the Island of Cuba, and should bind themselves to discoun-
tenance all attempts to that effect on the ])art of any power or indi-
vidual whatever. This invitation has been respectfully declined, for
reasons which would occupy too much sj)ace in this communication to
state in detail, but which led me to think that the proposed measure
would be of doubtful constitutionality, impolitic, and unavailing. I
have, however, in common with several of wy predecessors, directed
the ministers of France and England to be assured that the United
States entertain no designs against Cuba, but that, on the contrary, I
should regard its incorporation into the Union at the present time as
fraught with serious peril.

" Were this island comparatively destitute of inhabitants, or occupied
by a kindred race, I should regard it, if voluntarily conceded by Spain,
as a most desirable acquisition; but under existing circumstances I
should look upon its incorijoration into our Union as a very hazardous
measure. It would bring into the confederacy a population of a differ-
ent national stock, speaking a different language, and not likely to har-
monize with the other members. It would j)robably affect in a prejudi-
cial manner the industrial interests of the South; and it might revive
those conflicts of opinion which lately shook the Union to its center,
and which have been so happily compromised."
President Fillmore, Third Animal Message, 1852.

" I transmit yon a document printed by order of the House of Repre-
sentatives" (not, however, referred to by number) ''which will acquaint
you with the steps taken by France, England, and the United States
to preserve the tranquillity and integrity of the eastern portion of the
island of San 1 )omingo. The j/olicy pursued by the United States in
this respect has been wholly disinterested. It has been, no doubt, in
378

CHAP. III.] CUBA. [§ 60.

our power to obtain a permanent footliold in Doniiniea; and we have
as niucb need of a uaval station at Saraaiia as any European ])()\ver
could possibly have. It has, however, been the steady rule of our ]»ol-
icy to avoid, as far as possible, all disturbance of the existing political
relations of the West Indies. We have felt that any attempts on the
part of any one of the great maritime powers to obtain exclusive ad-
vantages in any of the islands where such an attempt was likely to be
made, would be apt to be followed by others, and end in converting the
archipelago into a great theater of national com])etition for exclusive
advantages and territorial acquisitions which might become fatal to the
peace of the world."

Mr. Everett, Sec. of State, to Mr. Rives, Dec. 17, 1852. MSS. Inst., France.
President Fillmore's message of Jan. 4, 1853, and Mr. Everett's report of the

same day, as to tripartite convention, is in Senate Ex. Doc. No. 1.3, ;i2d

Cong., 2d sess.

" I ought not to conclude this communication without indicating the
views of the President in relation to the intervention of Great Britain,
in conjunction with France, in the affairs of Cuba. These powers pro-
posed to this Government, in April, 1852, to enter into a tripartite
convention for guaranteeing the Spanish dominion over Cuba. The
])roposition was very properly declined by this Government. * * *

" For many reasons the United States feel deeply interested in the
destiny of Cuba. They will never consent to its transfer to either of
the Intervening nations, or to any other foreign state. They would
regret to see foreign powers interfere to sustain Spanish rule in the
island should it provoke resistance too formidable to be overcome by
Spain herself."

Mr. Marcy, Sec. of State, to Mr. Buchanan, July 2, 1853. MSS. Inst., Gr. Brit.

" Nothing will be done on our part to disturb its (Cuba's) present

connection with Spain, unless the character of that connection should

be so changed as to affect our present or prospective security. While the

United States would resist at every hazard the transference of Cuba

to any European nation, they would exceedingly regret to see Spain

resorting to any power for assistance to uphold her rule over it. Such

a dependence on foreign aid would in effect invest the auxiliary with

the character of a protector, and give it a pretext to interfere in our

affairs, and also generally in those of the North American continent."

Mr. Marcy, Sec. of State, to Mr. Soul6, July23, 1853. MSS. Inst., Spain. See same

to same, Apr. 3, 1854; Rov. 13, 1854, ibid. ; Mr. Marcy to Mr. Dodge, May 1,

18r)4, ibid.

"Should the rule of Spain over Cuba be so severe as to excite revolu-
tionary movements in that island, she will undoubtedly find volunteers
in the ranks of the Cubans from various countries, 'and, ownng to veiy ob-
vious causes, more from the United States probably than from any other;
but it would be unjust to impute to »his and the other Governments to

379

§ GO.] INTERVENTION'. [CHAP. III.

wbieL tlioso volunteers formerly belonged an nnfriendly disposition to-
wards lier, or a desire to aid clandestine!}- in the attempt to wrest that
island fn.ni her. There is reason to believe that Spain herself, as well as
other European Goveinments, suspects hal the people of the United
States are desirous of deraching Cuba from its i)resent transatlantic de-
l)endence, regardless of the rights of Spain, with a view of annexing it to
this Union: and that our Government was disposed to connive at the
particii)ation of our citizens in the past disturbances in that island, and
would again do so on the recurrence of similar events. Our defense
against such an unfounded suspicion, and the only one which self-re-
spect allows us to make, is an appeal to our past course."

Mr. Marcy, Sec. of State, to Mr. SonU, July 23, 185.'}. MSS. Inst., Spain.
As to sfcizure of Black Warrior, see House Ex. Doc. No. 76, 86, 33d Cong., 1st
sess.. House Ex. Doc. No. 93, 33(1 Cong., 2il sess. ; and see infra, $ 189.

"Should you find persons of position or intluence disposed to con-
verse on the subject, the considerations in favor of a cession [of Cuba]
are so many and so strong that those who can be brought to listen
would very likely become converts to the measure. But should you
have reason to believe that tlie men in power are averse to entertaining
such a proposition, — that the offer of it would be offensive to the national
l)ride of S[)ain, and that it would find no favor in any considerable class
of the i^eople, then it will be but too evident that the time for opening
or attempting to open such negotiation has not arrived. It a[)pears to
the President that nothing could be gained and something might be
lost by an attempt to push on a negotiation against such a general re-
sistance. This view of the case is taken on the supposition that you
shall become convinced Uhat a proposition for the cession of Cuba would
certainly be rejected."

Mr. Marcy, Sec. of State, to Mr. Soul<S, Nov. 13, 18.54. MSS. In^t., Spain.
As to piucbaso of Cuba, see Mr. Marcy, Sec. of State, to Mr. Buchanan, June
27, 1854. MSS. Inst., Gr. Brit.

" In the summer of 1854 a conference was held by the ministers of the
United States accredited at London, Paris, and Madrid, with a view to
consult on the negotiations which it might be advisable to carry on
simultaneously at these several courts, for the satisfactory adjustment
witli Spain of the affairs connected with Cuba. The joint dispatch of
Messrs. Buchanan, Mason, and Soule to the Secretary of State, dat-ed
Aix-la Chapelle, October 18, 1854, after remarking that the United States
had never acquired a foot of territory, not even after a successful war
with Mexico, except by j)urchase or by the voluntary a])plication of the
l)eople, as in the case of Texas, thus proceeds: 'Our past history Ibr-
bids that we should acquire the Island of Cuba without the consent of
Si)ain, unless justified by the great law of self-preservation. We must,
in any event, preserve our own conscious rectitude and our self-respect.
Whilst pursuing this course, we can afford to disregard the censures of
the world, to which we have been so often and so unjustly exposed.
After we shall have offered Spain a i)rice for Cuba far beyond its pres-
ent value, and this shall have been refused, it will then be time to con-

380

CHAP. III.] CUBA. [§ 60.

sider the (juestion, does Cuba, in the ])ossessioii of Spain, t^eiionsly
endanger our internal peace and tlie existence of our cherisLed Union?
Shoul(i this question be answered in the affirmative, then by every law,
human and divine, we shall be justified in wresting; it from Spain, it
we possess the ])ower; and this upon the very same principle that
would justify an individual in tearing down the burniuj? house of his
neighbor if there were no other means of preventing- the flames from
destroying' his own home. Under such circumstances, we ought neither
to count the cost nor regard the odds which Spain might enlist against
us. We forbear to enter into the question whether the present condi-
tion of the island would justify such a measure. We should, however,
be lecreant to our duty, be unworthy of our gallant forefathers, and
commit base treason against our posterity should we permit Cuba to
be Africanized and become a second St. Domingo, with all its attend-
ant horrors to the white race, and suffer the flames to extend to our
own neighboring shores, seriously to endanger or actually to consume
the fair fabric of our Union, and lest there might be any misappre-
hension of this language as implying the alternative of cession and
seizure, except as the result of absolute necessity, Mr. Marcy, Secretary
of State, writes, November 13, 185-4, to Mr. Soule: 'To conclude that, on
the rejection of a proposition to cede, seizure should ensue, would be to
assume that selfpresfrvation necessitates the acquisition of Cuba by the
United States; that Spain has refused, and .will persist in refusing, our
reclamations for injuries and wrongs inflicted, and that she will make
no arrangement for our future security against the recurrence of similar
injuries and wrongs.' Cong. Doc, 33d Cong., 2d sess., H. R. No. 93.
See for the documents in extenso, the last edition of this work, App.,
p. 672, and Lawrence on Visitation and Search, App., p. 205."

Lawrence's Wheaton (ed. 1863), 149, 150.

As to Ostend Conference, see House Ex. Doc. No. 93, 33d Cong., 2d sess. ; con-
taining also correspondence as to spoliation of Black Warrior and other
spoliations.

"The truth is, that Cuba, in its existing colonial condition, is a con-
stant source of injury and annoyance to the American people. It is the
only spot in the civilized world where the African slave trade is tol-
erated ; and we are bound by treaty with Great Britain to maintain a
naval force on the coast of Africa, at much expense both of life and
treasure, solely for the purpose of arresting slavers bound to that island.
The late serious diflBculty between the United States and Great Brit-
ain respecting the right of search, now so happily terminated, could
never have arisen if Cuba had not afforded a market for slaves. As
long as this market shall remain open there can be no hope for the civ-
ilization of benighted Africa. Whilst the demand for slaves continues
in Cuba, wars will be waged among the petty and barbarous chiefs in
Africa for the purpose of seizing subjects to supply this trade. In such
a condition of affairs it is impossible that the light of civilization and
religion can ever penetrate these dark abodes.

"It has been made known to the world by my predecessors that the
United States have, on several occasions, endeavored to acquire Cuba
from Spain by honorable negotiation. If this were accomplished, the

381

§ 60.] INTERVENTION. [CHAP. III.

last relic of tlic African slave trade wonld iustantly disappear. We
would not, if we could, acquire Cuba in any other manner. This is
due to our national character. All the territory which we have ac-
quired since the origin of the Government has been by fair purchase
from France, Spain, and Mexico, or by the free and voluntary act of the
independent State of Texas in blending her destinies with our own.
This course we shall ever pursue, unless circumstances should occur
which we do not now anticipate, rendering a departure from it clearly
justifiable under the imperative and overruling law of self-preservation.

"The Island of Cuba, from its geographical position, commands the
mouth of the Mississippi and the immense and annually increasing trade,
foreign and coastwise, from the valley of that noble river, now embrac-
ing half the sovereign States of the Union. With that island under
the dominion of a distant foreign power, this trade, of vital importance
to these States, is exposed to the danger of being destroyed in time of
war, and it has hitherto been subjected to perpetual injury and annoy-
ance in time of peace. Our relations with Spain, which ought to be of
the most friendly character, must always be placed in jeopardy, whilst
the existing colonial government over the island shall remain in its pres-
ent condition.

"' Whilst the possession of the island would be of vast importance to
the United States, its value to Spain is, comparatively, unimportant.
Such was the relative situation of the i^arties when the great Napoleon
transferred Louisiana to the United States. Jealous as he ever was of
the national honor and interests of France, no person throughout the
world has imputed blame to him for accepting a pecuniary equivalent
for this cession."

President Buchanan, Second Annual Message, 1858.

Mr. Slidell's report on acquisition of Cuba, Jan. 24, 1859, is in Senate Rep. Com.
No. 351, 35th Cong., 2d sess.

For minority report, of .Jan. 24, 1859, of committee in the House of Represent-
atives, objecting to the bill appropriating $30,000,000 for the purchase of
Cuba, see House Rep. No. 134, 35th Cong., 2d sess.

" I need not repeat the arguments which I urged in my last annual
message, in favor of the acquisition of Cuba by fair purchase. My opin-
ions on that measure remain unchanged. I, therefore, again invite the
serious attention of Congress to this important subject. Without a rec-
ognition of this policy on their part, it will be almost impossible to in-
stitute negotiations with any reasonable prospect of success."
President Buchanan, Third Annual Message, 1859

"I reiterate the recommendation contained in my annual message of
December, 1858, and repeated in that of December, 1859, in favor of
the acquisition of Cuba from Spain by fair purchase. I lirmly believe
that such an acquisition would contribute essentially to the well-being
and prosperity of both countries in all future time, as well as prove the
382

CHAP. III.] CUBA. [§ GO

certain means of immediately abolisliiug the African slave f ratle tlirongh-
oi'.t tlie world. I would not rei)eat this recommendation upon the [)n\s-
ent occasion if I believed tliiit the transfer of Culia to the United States,
upon conditions highly favorable to Spain, could justly tarnish the na-
tional honor of the i)roud and ancient Si)anish nionarchy. Surely no
person ever attributed to the First Napoleon a disregard of the national
honor of France for transferring Louisiana to the United States for n.
fair equivalent, both in money and commercial advantages."
President Buchanan, Fourth Annual Message, 1860.

" As the United States is the freCvSt of all nations, so, too, its people
.sympathize with all peoples struggling for liberty and self-government.
But while so sympathizing, it is due to our honor that we should abstain
from enforcing our views upon unwilling nations, and from taking an
interested part, icithout invitation, in the quarrels between difl'erent na-
tions or between Governments and their subjects. Our course should
always be in conformity with strict justice and law, international and
local. Such has been the policy of the Administration in dealing with
these questions. For more than a year a valuable jirovince of Spain,
and a near neighbor of ours, in whom all our people cannot but feel a
deep interest, has been struggling for independence and freedom. The
people and Government of the United States entertain the same warm
feelings and symi)athies for the people of Cuba, in their pending strug-
gle, that they manifested throughout the previous struggles between
Spain and her former colonies in behalf of the latter. But the contest
has at no time, assumed the conditions which amount to a war in the
sense of international law, or which would show the existence of a dc
facto political organization of the insurgents sufficient to justify a rec-
ognition of belligerency. ^

" The priucii)le is maintained, however, that this nation is its own
judge when to accord the rights ofbelligereucy, either to a people strug-
gling to free themselves from a Government they believe to be oi)press-
ive, or to independent nations at war with each other.

"The United States have no disposition to interfere with the existing
relations of Spain to her colonial i)OSsessions on this continent. They
believe that in due time Spain and other European powers will (ind
their interest in terminating those relations, and establishing their pres
ent dependencies as independent powers — members of the family of na-
tions. These dependencies are no longer regarded as subject to trana
fer from one European power to another. When the present relation
of colonies ceases they are to become independent powers, exercising;
the right of choice and of self-control in the determination of their future,
condition and relations with other powers.

" The United States, in order to put a stop to bloodshed in Cuba,
and in the interest of a neighboring people, proposed their good offices
to bring the existing contest to a termination. The offer, not being

383

^ 60.] INTERVENTION. [CHAP. III.

accepted by Spain on a basis wliich wc believe<l could ])e received bj"^
Cuba, was withdrawn. It is hoped that the good ofiices of the United
States may yet prove advautageous for the settlement of this unhappy
strife."

Presiilont Grant, First Annual Message, 1861).

As to Cuban insurrection, 18C9, see Sen. Ex. Doc. No. 7, 41st Cong., 2d sess.;
House Ex. Doe. No. 140, No. 160.

" In my annual message to Congress, at the beginning of its present
session, I referred to the contest which had then for more thnn a year
existed in the Island of Cuba between a portion of its inhabitants and
the Government of Spain, and the feelings and sympathies of the people
and Government of the United States for the people of Cuba, as for all
peoples struggling for liberty and self-government, and said that ' the
cojitest has at no time assumed the conditions which amount to war, in
the sense of international law, or which would show the existence of a
de facto political organization of tl»e insurgents sufficient to justify a
recognition of belligerency.'

" During the six months which have passed since the date of that mes-
sage, the condition of the insurgents has not improved; and the insur-
rection itself, although not subdued, exhibits no signs of advance, but
seems to be confined to an irregular system of hostilities, carried on by
small and illy-armed bands of men, roaming, without concentration,
through the woods and the sparsely populated regions of the island,
attacking- from ambush convoys and small bands of troops, burning
plantations and the estates of those not symjiathizing with Their cause.

" But if the insurrection has not gained ground, it is equally' true that
Spain has not suppressed it. Climate, disease, and the occasional bul-
let have worked destruction among the soldiers of Spain ; and although
the Spanish authorities have possession of every seaport and every
town on the island, they have not been able to subdue the hostile feel-
ing which has driven a considerable number of the native iidiabitants
of the island to armed resistance against Spain, and still leads them to
endure the dangers and the privations of a roaming life of guerrilla
warfare.

" On either side the contest has been conducted, and is still carried
on, with a lamentable disregard of human life, and of the rules and prac-
tices which modern civilization has prescribed in mitigation of the neces-
sary horrors of war. The torch of Spaniard and of Cuban is alike busy
in carrying devastation over fertile regions; murderous and revengeful
decrees are issued and executed by both parties. Count Valmaseda
and Colonel Boet, on the part of Spain, have each startled humanity
and aroused the indignation of the civilized world by the execution,
each, of a score of prisoners at a time, while General Quesada, the Cuban
chief, coolly, and with apparent unconsciousness of aught else than a
proper act, has admitted the slaughter, by his own deliberate order, in
one day, of upward of six huntlred and fifty prisoners of war.
384

CHAP. III.] CUBA. [§ 60.

"A summary trial, with few, if any, escapes from coiivictiou, followed
by immediate execution, is the fate of those arrested on either side on
suspicion of infidelity to the cause of the party making the arrest.

" Whatever may be the sympathies of the people or of the Government
of the United States for the cause or objects for which a part of the
people of Cuba are understood to have put themselves in armed resist-
ance to the Government of Spain, there can be no just sympathy in a
conflict carried on by both parties alike in such barbarous violation of
the rules of civilized nations, and with such continued outrage upon the
plainest principles of humanity.

" We cannot discriminate in our censure of their mode of conducting
their contest between the Spaniards and the Cubans ; each commit the
same atrocities and outrage alike the established rules of war.

" The properties of many of our citizens have been destroyed or em-
bargoed, the lives of several have been sacrificed, and the liberty of
others has been restrained. In every case that has come to the knowl-
edge of the Government, an early and earnest demand for reparation
and indemnity has been made, and most emphatic remonstrance has
been presented against the manner in which the strife is conducted, and
against the reckless disregard of human life, the wanton destruction of
material wealth, and the cruel disregard of the established rules of civil-
ized warfare.

"1 have, since the beginning of the present session of Congress,
communicated to the House of Representatives, upon their request, an
account of the steps which 1 had taken, in the hope of bringing this sad
conflict to an end, and of securing to the people of Cuba the blessings
and the right of independent self-government. The efforts thus made
failed, but not without an assurance from Spain that the good oflBces of
this Government might still avail for the objects to which they had
been addressed.

" During the whole contest the remarkable exhibition has been made
of large numbers of Cubans escaping from the island and avoiding the
risks of war ; congregating in this country at a safe distance from the
scene of danger, and endeavoring to make war from our shores, to urge
our people into the fight which they avoid, and to embroil this Govern-
ment in complications and possible hostilities with Spain. It can scarce
be doubted that this last result is the real object of these parties, al-
though carefully covered under the deceptive and apparently plausible
demand for a mere recognition of belligerency.

"It is stated, on what I have reason to regard as good authority,
that Cuban bonds have been prepared to a large amount, whose pay
raent is made dependent upon the recognition by the United States of
either Cuban belligerency or independence. The object of making their
value tiius contingent upon the action of this Government is a subject
lor serious reflection.

S. Mis, 162— VOL. I 25 385

§ 60.] INTERVENTION. [CHAP. III.

'' In deterininiug the course to be adopted on the demand thus made
for a recognition of belligerency, the liberal and peaceful principles
adopted by the ••' Father of his Country " and the eminent statesmen of
his day, and followed by succeeding Chief Magistrates and the men of
their day, may furnish a safe guide to those of us now charged with the
direction and control of the public safety.

" From 1789 to 1815 the dominant thought of our statesmen was to
keep the United States out of the wars which were devastating Europe.
The discussion of measures of neutrality begins with the state papers
of Mr. Jefferson when Secretary of State. He shows that they are
measures of national right as well as of national duty ; that misguided
individual citizens cannot be tolerated in making war according to their
own caprice, passions, interests, or foreign sympathies; that the agents
of foreign Governments, recognized or unrecognized, cannot be permit-
ted to abuse our hospitalitj' by usurping the functions of enlisting or
equipping military or naval forces within our territory. Washington
inaugurated the policy of neutrality and of absolute abstinence from all
foreign entangling alliances, which resulted, in 1794, in the first munic-
ipal enactment for the observance of neutrality.

" The duty of opposition to filibustering has been admitted by every
President. Washington encountered the efibrts of Genet and the French
revolutionists ; John Adams, the projects of Miranda ; Jefferson, the
schemes of Aaron Burr. Madison and subsequent Presidents had to
deal with the question of foreign enlistment or equipment in the United
States, and since the days of John Quincy Adams it has been one of the
constant cares of Government in the United States to prevent piratical
expeditions against the feeble Spanish- American Eepublicsfrom leaving
our shores. In no country are men wanting for any enterprise that
holds out promise of adventure or of gain.

" In the early days of our national existence the whole continent of
America (outside of the limits of the United States), and all its islands,
were in colonial dependence upon European powers.

''The revolutions which, from 1810, spread almost simultaneously
through the Spanish-American continental colonies, resulted in the
establishment of new states, like ourselves, of European origin, and
interested in excluding European politics and the questions of dynasty
and of balances of power from further influence in the is^ew World.

" The American policy of neutrality, important before, became doubly
so, from the fact that it became applicable to the new Republics as well
as to the mother country.

"• It then devolved upon us to determine the great international ques-
tion, at what time and under what circumstances to recognize a new
power as entitled to a place among the family of nations, as well as the
preliminary question of the attitude to be observed by this Govfemment
toward the insurrectionary party, pending the contest.
386

CHAP. III.] CUBA. [§ 60.

" Mr. Monroe concisely expressed the rule which has controlled the
action of this Government with reference to revolting colonies pending
their struggle, by saying, 'As soon as the movement assumed such a
steady aud consistent form as to make the success of the provinces prob-
able, the rights to which they were entitled, by the laws of uatious as
equal parties to a civil war, were extended to them.'

" The strict adherence to this rule of public i)olicy has been one of the
highest honors of American statesmanship, and has secured to this Gov-
ernment the confidence of the feeble powers on this continent, which
induces them to rely upon its friendship aud absence of designs of con-
quest, and to look to the United States for example and moral protec-
tion. It has given this Government a position of prominence and of
influence which it should not abdicate, but which imposes upon it tlie
most delicate duties of right and of honor regarding American ques-
tions, whether those questions affect emancipated colonies or colonies
still subject to European dominions.

" The question of belligerency is one of fact not to be decided by
sympathies for or prejudices against either party. The relations be-
tween the parent state and the insurgents must amount, in fact, to
war in the sense of international law. Fighting, though fierce and pro-
tracted, does not alone constitute war; there must be military forces
acting in accordance with the rules and customs of war — flags of truce,
cartels, exchange of prisoners, &c. — and to justify a recognition of bel-
ligerency there must be, above all, a de facto political organization of the
insurgents sufficient in character and resources to constitute it, if left
to itself, a state among nations capable of discharging the duties of a
state, and of meeting the just responsibilities it may incur as such
toward other powers in the discharge of its national duties.

"Applying the best information which I have been enabled to gather,
whether from official or unofficial sources, including the very exagger-
ated statements which each party gives to all that may prejudice the
opposite or give credit to its own side of the question, I am unable to
see, in the present condition of the contest in Cuba, those elements
which are requisite to constitute war in the sense of international law.

" Tlie insurgents hold no town or city ; have no established seat of
Government ; they have no prize courts ; no organization for the receiv-
ing and collecting of rev^enue; no sea port to which a prize may be car-
ried or through which access can be had by a foreign power to the lim-
ited interior territory and mountain fastnesses which they occupy.
The existence of a legislature representing any popular constituency is
more than doubtful.

"In the uncertainty that hangs around the entire insurrection there
is no palpable evidence of an election, of any delegated authority, or of
any Government outside the limits of the camps occupied from day to
day by the roving companies of insurgent troops. There is no com-
merce } no trade, either internal or foreign ; no manufactures.

387

§ 60.] INTERVENTION. [CHAP. III.

"The late commander-in-chief of the insurgents, having recently
come to the United States, publicly declared that ' all commercial in-
tercourse or trade with the exterior world has been utterly cut off,' and
lie further added, ' To-day we have not ten thousand arms in Cuba.'

" It is a well-established principle of public law that a recognition by
a foreign state of belligerent rights to insurgents under circumstances
such as now exist in Cuba, if not justified by necessity, is a gratuitous
demonstration of moral support to the rebellion. Such necessity ma;^
yet hereafter arrive, but it has not yet arrived, nor is its probabdity
clearly to be seen.

" If it be war between Spain and Cuba, and be so recognized, it is our
duty to provide for the consequences which may ensue in the embar-
rassment to our commerce and the interference with our revenue.

" If belligerency be recognized, the commercial marine of the United
States becomes liable to search and to seizure by the commissioned
cruisers of both parties — they become subject to the adjudication of
prize courts.

" Our large coastwise trade between the Atlantic and the Gulf States,
and between both and the Isthmus of Panama and the states of South
America (engaging the larger part of our commercial marine) passes,
of necessity, almost in sight of the Island of Cuba. Under the treaty
with Spain of 1795, as well as by the law of nations, our vessels will be
liable to visit on the high seas. In case of belligerency, the carrying of
contraband, which now is lawful, becomes liable to the risks of seizure
and condemnation. The parent Government becomes relieved from
responsibility for acts done in the insurgent territory, and acquires the
right to exercise against neutral commerce all the powers of a party to
a maritime war. To what consequences the exercise of those powers
may lead, is a question which I desire to commend to the serious con-
sideration of Congress.

" In view of the gravity of this question, I have deemed it my duty to
invite the attention of the war-making power of the country to all the
relations and bearings of the question in connection with the declara-
tion of neutrality tind granting of belligerent rights.

'' There is not a de facto government in the Island of Cuba sufficient
to execute law and maintain just relations with other nations. S])ain
has not been able to suppress the opposition to Spanish rule on the
island, nor to award speedy justice to other nations, or citizens of other
nations, when their rights have been invaded.

" There are serious complications growing out of the seizurj^of Ameri-
can vessels upon the high seas, executing American citizens without
proper trial, and confiscating or embargoing the property of American
citizens. Solemn protests have been made against every infraction of
the rights either of individual citizens of the United States or the rights
of <mr flag upon the high seas, and all proper steps have been taken
388

CTTAP. III.] CUBA. [§ 60.

aud are bein^ ]»resse(l for llie })r()iK'r reparation of evcMy iiidi^iiily coiii-
l)laiued of.

"Tlie question of bellij^'erency, however, which is to be decided upon
definite i)rincii)les and according to ascertained facts, is entirely differ-
ent from and unconnected with the other questions of the manner in
which the strife is carried on on both sides, and the treatment of our
citizens entitled to our protection.

" These questions concern our own dif^nity and responsibility, and they
have been made, as I have said, the subjects of repeated communica-
tions with Spain, and of protests and demands for redress on our part.
It is hoped that these will not be disregarded ; but should they be,
these questions will be made the subject of further communication to
Congress."

President Grant, Special Message of June 13, 1870.

'•It is to be regretted that the disturbed condition of the Island of
Cuba continues to be a source of annoyance and of anxiety. The exist-
ence of a protracted struggle in such close proximity to our own terri-
tory, without apparent prospect of an early termination, cannot be other
than an object of concern to a iieople who, while abstaining from inter-
ference in the affairs of other powers, naturally desire to see every
country in the undisturbed enjoyment of peace, liberty, aud the bless-
ings of free institutions.

" Our naval commanders in Cuban waters have been instructed, in
case it should become necessary, to spare no effort to protect the lives
and i)roi)erty of bona-tide American citizens, and to maintain the dig-
nity of the flag.

" It is hoped that all pending questions with Spain growing out of
the affairs in Cuba may be adjusted in the spirit of peace and concilia-
tion which has hitherto guided the two i)owers in their treatment of
such questions."

President Grant, Third Annual Message, 1871.

Senate Ex. Doc. No. 32, 42d Cong., 2d sess., gives Mr. Fish's report of Feb. 9,

1872, with accompanying pai)ers. See supra, vi 57, for Mr. Fish's report of

July 14, 1870.

" The present ministry in Spain has given assurance to the public,
through their organs of the press, and have confirmed the assurance to
you personally (as you have reported in recent dispatches), of their in-
tention to put in operation a series of extensive reforms, embracing
among them some of those which this Government has been earnest in
urging upon their consideration in relation to the colonies which are
our near neighbors.

" Sustained, as is the present ministry, by the large popular vote
which has recently returned to the Cortes an overwhelming majority in
its support, there can be no more room to doubt their ability to carry
into operation the reforms of which they have given promise, than there*

389

§ 60.] INTERVENTION. [CHAP. III.

can be justification to question the sincerity with which the assurance
was given. It seems, therefore, to be a fitting occasion to look back
upon the relations between the United States and Spain, and to mark
the progress which may have been made in accomplishing those ob-
jects in which we have been promised her co-operation. It must be
acknowledged with regret that little or no advance has been made.
The tardiness in this respect, however, cannot be said to be in any way
imputable to a want of diligence, zeal, or ability in the legation of the
United States at Madrid. The Department is ])ersuaded that no per-
sons, however gifted with those qualities and faculties, could have bet-
ter succeeded against the apparent apathy or indifference of the Span-
ish authorities, if, indeed, their past omission to do what we have ex-
pected should not be ascribable to other causes.

" The Spanish Government, partly at our instance, passed a law pro-
viding for the gradual emancipation of slaves in the West India colo-
nies. This law, so far as this Department is aware, remains unexecuted,
and it is feared that the recently issued regulations, professedly for its
execution, are wholly inadequate to any practical result in favor of
emancipation, if they be not really in the interest of the slaveholder
and of the continuance of the institution of slavery. While we fully
acknowledge our obligation to the general rule which requires a nation
to abstain from interference in the domestic concerns of others, circum-
stances warrant partial exceptions to this rule. The United States
have emancipated all the slaves in their own territory, as the result of
a civil war of four years, attended by a vast effusion of blood and ex-
penditure of treasure. The slaves in the Spanish possessions near us
are of the same race as those who were bondsmen here. It is natural
and inevitable for the latter to sympathize in the oppression of their
brethren, and especially in the waste of life, occasioned by inhuman
punishments and excessive toil. Xor is this sympathy confined to
those who were recently in bondage among us. It is universal, as it
is natural and just. It rests upon the instincts of humanity, and
is the recognition of those rights of man which are now universally
admitted. Governments cannot resist a conviction so general and so
righteous as that which condemns as a crime the tolerance of human
slavery, nor can Governments be in fault in raising their voice against
the further tolerance of so grievous a blot upon humanity. You will,
consequently, in decisive but respectful terms, remonstrate against the
apparent failure of Spain to carry into full effect the act referred to.
We acknowledge that this may be a difficult task. The reproaches,
open or covert, of those whose supposed interests may be aflected by
it, to say nothing of other underhand proceedings, must be trying to
the patience and highly embarrassing to the statesmen who may be
the best disposed toward the measure. All, however, who countenance
lukewarmness or neglect in carrying it into effect must, more or less,
390

CHAP, in.] CUBA. [§ 60.

be liable to tbe cbarge of duplicity or bad faith, a charge which every
man of bouor in high station ought to endeavor to avoid.

"By tbe enactment of the law of July, 1870, tbe Government of Spain
is practically committed to the policy of emancipation. It is true that
the law was far from being as comprehensive a measure as was hoped
for by the friends of emancipation both in Spain and throughout Christ-
endom, but it was regarded as the entering-wedge and the first step
toward the extermination of a great wrong, and as the inauguration of
a measure of justice and peace, wherebj' Spain, to her high honor, de-
clared herself in harmony with the general sentiment of modern civili-
zation and with the principles of unquestioned human rights. It is so
manifestly due to that sentiment and to those principles thai their rec-
ognition, as thus evidenced, be made practical and effective by the en-
forcement of the law, that it cannot be questioned that Spain, with the
pride and the honor that mark her history, will no longer delay the ex-
ecution of the law and the observance of the pledge to humanity and
to justice which was implied in the enactment.

'' Thei-e is another view which may be taken of this subject. The Span-
ish Government and the Spanish people are understood to be almost
unanimously adverse to the independence of Cuba. It will not be de-
nied that the resistance to the enforcement of the emancipation law
proceeds almost entirely from those interested in slaA^e property in the
Island of Cuba, who have, through the successive ministries to which
the Government of Spain has been intrusted since the enactment of the
law in July, 1870, been enabled hitherto to delay and to defeat its exe-
cution by preventing the promulgation of regulations effective for the
end to which the law was directed.

"An imjiortant law is thus nullified through the influence and agency
of a class in Cuba who are the most loud in profession of devotion to
the integrity of the Spanish territory and to the continuance of Span-
ish dominion over the island. The example of disregard to laws thus
set cannot be without its influence. If Spain permits her authority to
be virtually and practically defied in that island by a refusal or neglect
to carry into effect acts of the home Government of a humane tendency,
is not this tantamount to an acknowledgment of inability to control ?
If she refuse to enforce her authority in one instance, why may it not
be spurned in others, and will not her supremacy, sooner or later, be-
come nominal only, with no real advantage to herself or her colonies,
but to the serious detriment of both, as well as of those other powers
whose relations, whether of neighborhood or of commerce, give them
special interest in the welfare of those possessions?

"It is also represented that the grasping cupidity of sugar-planters
in Cuba has succeeded in enabling them virtually to annul their con-
tracts with coolies for a limited term of service, coupled with the privi-
lege of returning to their homes at its close, and that those unfortunate
Asiatics, under regulations for an enforced re-engagement when their

391

§ 60.] INTERVENTION. [CHAP. III.

ronncr (loiUraci may Lave expired, are being i)racticall,y reduced to tlie
same abjectt eoiulitiou as the African slaves. If this be true, it is im-
possibk^ for the Government of any civilized country to be indifferent
to so atrocious a i)roceeding. You will mention this subject to the
S[)anish minister for foreign affairs, and will not conceal the view which
we take of it.

"The insurrection in Cuba has now lasted four years. Attempts to
sui)pre8s it, so far futile, have been made probably at a sacrifice of
more than a hundred thousand lives and an incalculable amount of
property. Our commercial and other connections with that island
compel us to take a warm interest in its peaceful and orderly condition,
without which there cannot be prosperity.

''Cuba being separated from this country by a narrow passage, the
tem])tations for reckless adventurers here to violate our law and embark
in hostile expeditions thither is great, despite the unquestioned vigi-
lance of this Government to maintain its duty and the efforts wit h which
the approaches to the island have been guarded by the Spanish cruis-
ers. The said proximity has led Cubans and others, partisans of the
insurgents, to take up their abode in the United States, actuated by
the hope that that proximity would enable them advantageously to plot
and act for the advancement of their cause in the island. We certainly
have reason to expect that the great strain upon our watchfulness to
thwart those schemes occasioned by the long duration of hostilities in
Cuba, should have some termination through a cessation of the cause
which hitherto has been supposed to make it necessary for the discharge
of our duties as a neutral.

"Ever since the insurrection began, we have repeatedly been called
upon to discharge those duties. In the performance of them we are
conscious of no neglect, but the trial to our impartiality by the want of
success on the part of Spain in supj)ressing the revolt is necessarily so
severe that unless slie shall soon be more successful it will force upon
this Government the consideration of the question, whether duty to
itself and to the commercial interests of its citizens may not deman<l
some change in the line of action it has thus far pursued.

"It is intimated, and is probably true, that the corruption which is
more or less inseparable from such protracted contests is itself a prin-
cipal agent in prolonging hostilities in Cuba. The extortions incident
to furnishing supplies for the troops, the hope of sharing in the j)ro-
ceeds of insurgent or alleged insurgent property, would, of course, be
put an end to by the restoration of tranquillity. These must be power-
ful agencies in fettering the arm which ought to strike home for i)eace,
for order, and the quiet enjoyment of the citizen. It is reasonable to
suppose, too, that the saving of the public money which must result
from a termination of the conflict would alone be a sufficient incen-
tive for a patriotic Government to exert itself to the utmost for that
purpose.

392

CHAP. III.] CUBA. [§ 60.

" Besides a measure for the abolition of slavery, and assurances of the
speedy termination of the contest in Cuba, we have been assured that
extensive inuniciijal reforms would be introduced in the colonies, and
that their government would be liberalized. Certainly the Spanish Gov-
ernment, with its experience of the past, and with the knowledge which
it cannot fail to have of the tendencies of the age, can never exi)ect
peaceably to maintain the ancient colonial system in those islands. Tiie
abuses of that system press heavily upon the numerous educated natives
of the same race, and, if not reformed, must be a constant source of
bitter antipathy to the mother country. The repeated assurances of the
intention of the Government to abolish slavery and to grant liberal re-
forms in the administration of the island, are admissions by Spain of
the wrong of slavery, and of the existence of evils which need reform,
but are still allowed on the illogical and indefensible ground that con-
cession cannot be made while resistance continues.

"A nation gives justification to resistance while admitted wrongs
remain unredressed; resistance ceases to be justifiable when no wrongs
are either admitted or alleged. Eedress wrongs and resistance will
cease.

" Spain is too great a power to fear to do what she admits to be right,
because it is asked vehemently ; or because its attainment is sought
improperly, she need not apprehend that the reforming of abuses and
of wrongs, which she admits to exist, and declares herself ready to cor-
rect, will be attributed to an unworthy motive, while delay in removing
admitted wrongs which it is within her power to remove places her in a
false position, and goes far to justify and to attract sympathy to those
who are sufferers from the unredressed wrongs.

" Spain itself has been the scene of civil commotion, but prisoners
taken in arms have not been jiut to death as they are in Cuba, nor have
amnesties been regarded as dangerous in the peninsula ; why should
they be so regarded in the colonies I or why should concessions be dis-
honorable in Cuba that are not so considered at home? The suggestion
that they would be is the offspring of the selfishness of those interested
in prolonging the contest for private gain.

"A just, lenient, and humane policy toward Cuba, if it would not bring
quiet and order and contentedness, would at least modify the judg-
ment of the world that most of the evils of which Cuba is the scene are
the necessary results of harsh treatment, and of the maladministration
of the colonial government.

" You are aware that many citizens of the United States, owners of
estates in Cuba, have suftered injury by the causeless seizure, in viola-
tion of treaty obligations, of those estates, and by the appropriation of
their proceeds by those into whose hands they had fallen. Though in
some one or two instances the property has been ordered to be restored,
so iiar there has been no indemnification for the damage sustaincil. In
other instances, where restitution has been promised, it \n\s lu'en

393

§ 60.] INTERVENTION. [CHAP. III.

evaded and put off in a way which cannot fail to excite the just resent-
ment of the sufferers and of their Government, whose duty it is to pro-
tect their interests.

"Tlie decree of 31st August last, prescribing regulations for the
proceedings concerning sequestrated property in Cuba, so far as it
recognized the embargo or confiscation of the property of those charged
with complicity in the insurrection, as a judicial proceeding, in which
the parties are entitled to be fairly heard, may be regarded as a con-
cession to the frequent remonstrances of this Government, as well as to
the requirements of justice. But, unless the action of the board to be
constituted under that decree exhibit a very different measure of
promptness and of activity from that which has been given to the
remonstrances of this Government against the proceedings whereby the
property of citizens of the United States has heretofore been seized, the
organization of the board will serve only to increase the very just causes
of complaint of this Government. It is hoped that it will not be
allowed to become the means or the excuse of further procrastination, or
of delaying beyond the extremest limits of patience, which have already
been reached, the decision upon the many cases which have been the
subject of i^rotracted diplomatic correspondence. There will readily
occur to you several cases, which need not be specifically enumerated,
which have been referred backward and forward between Madrid and
Havana to the very verge of the exhaustion of all patience. In the
mean time, the property of citizens of the United States has been held
in violation of the treaty between this country and Spain.

"In some of these cases you have been promised the release of the
embargo. It is expected that the tardy redress thus promised will not
be further delayed by any alleged necessity of reference to this newly
constituted board.

" It is hoped that you will present the views above set forth, and the
])resent grievances of which this Government^o justly complains, to the
Government to which you are accredited, in a way which, without giv-
ing offense, will leave a conviction that we are in earnest in the expres-
sion of those views, and that we expect redress, and that if it should
not soon be afforded Spain must not be surprised to find, as the inevi-
table result of the delay, a marked change in the feeling and in the
temper of the people and of the Government of the United States.
Believing that the present ministry of Spain is in a suflBciently con-
firmed position of power to carry out the measures which it announces,
and the reforms which have been promised, and to do justice by the re-
moval of the causes of our well-founded complaints, and not doubting
the sincerity of the assurances which have been given, the United
States look confidently for the realization of those hopes which have
been encouraged by repeatedpromises that all causes for estrangement,
or for the interruption of those friendly feelings which are traditional,
394

CHAP. III.] CUBA. [§ 60.

as tliey are sincere, on the part of this Government toward Spain, will
be speedily and forever removed."

Mr. Fish, Sec. of State, to Mr. Sickles, Oct. 29, 1872. MSS. Inst., Spain; For.
Rel., 1872.

In 1873 Mr. Fish instructed Mr. Bancroft, then at Berlin, to use his
" best endeavors to secure from the German Government such instruc-
tions to its minister at Madrid as may enable him to make a simulta-
neous, if not identical, application to the Spanish Government in support
of the desired change," in certain oppressive tariff laws of Cuba sub-
jecting goods on which there are fines to such fines, and not the vessels
which import them.

Mr. Fish, Sec. of State, to Mr. Bancroft, Mar. 22, 1873. MSS. Inst., Germ. ; For.
Rel., 1873.

" Your dispatches No. 670 and 672, of the respective dates of the
27th and 31st July, are not calculated to command confidence in the
expectation of a satisfactory settlement of the troubles in which Spain
finds herself involved either in respect to her internal or colonial affairs
or her relations with other powers. As to the former, we can but sin-
cerely regret that the effort to establish a republican form of govern-
ment does not give greater promise of success. The United States
promptly and cordially extended its recognition and the moral effects
of its sympathy to the new Government. It has further manifested its
friendly interest by abstaining from insistance in the presentation of
complaints on account of the frequent failure of compliance with as-
surance of intended reforms in the government of Cuba, and of the
reparation o« wrongs to the persons and property of American citizens.

" Recent information from Havana shows that the decree for the re-
lease of embargoed estates had not at a very late date been proclaimed,
and that influences seemed to be at work to induce the withholding of
the publication and the consequent nullification of the decree. * * *

'•The President has heard with deep concern and regret the announce-
ment, said to be made by a member of the ministry of Spain, that no
reforms will be granted, and no notice taken of the demands of the in-
surgents in Cuba, so long as they do not lay down their arms. * * *

" In the interest of Spain, no less than in that of Cuba, in the interest
of the United States, in the interest of humanity, the President hopes
that such may not be the determination of Spain, and you Avill not foil
to urge upon the ministry the tendency of such policy, and the im-
portance in the direction of pacification, and to the arrest of the further
destruction of property and waste of human life, of the disavowal or
abandonment of a policy so inconsistent with a possibility of a restora-
tion of peace. * * *

"It is therefore that it appears to us, as friends of Spain, of urgent
importance that Spain, in the exercise of her historic wisdom, voluntarily
recall the inconsiderate declaration of a minister (if, indeed, it were

395

§ 60.] INTERVENTION. [CHAP. III.

luadc) tluit the granting of reforms to Cuba will not be entertained
while the insurrection lasts, and the President desires that 3'ou iinpress
in a friendly and delicate way the i^aramouut importance of action ratlier
than i)romise in the direction of reforms of which the wisdom of the
Government at Madrid have more than once recognized the propriety."

Mr. Fish, Sec. of State, to Mr. Sickles, Aug. 27, 1873. MSS. Inst., Spain ; Foi'.
Rel., 1873.

" Whatever general instructions you may need at the ])resent time
for 3"our guidance in representing this Government at Madrid have rat'-
erence entirely to the actual state of the Island of Cuba and its relation
to the United States as well as to Spain.

"It is now more than five years since an organized body of the in-
habitants of that island assembled at Yara, issued a declaration of inde-
pendence, and took up arms to maintain the declaration. The move-
ment rapidly spread, so as to occupy extensive regions of the eastern
and central portions of the island, and all the resources of the Spanish
Government have been exerted ineffectually to suppress the revolution
and reclaim the districts in insurrection to the authority of Spain. The
prosecution of the war on both sides has given rise to many questions,
seriously affecting the interests and the honor of the United States,
which have become the subject of diplomatic discussion between this
Government and that of Spain.

"You Avill receive herewith a selection, in chronological order, of the
numerous dispatches in this relation which have passed between the
two Governments. From these documents you will derive ample infor-
mation, not only respecting special questions which have arisen from
time to time, but also respecting the general purposes and policy of the
President in the premises.

"Those purposes and that policy, as indicated in the accompanying
documents, have continued to be substantially the same during the
whole period of these events, except in so far as they may have been
modified by special circumstances, seemin;: to impart greater or less
prominence to the various aspects of the general question, and thus,
without producing any change of principle, yet, according to the i)ar-
ticular emergency, to direct the action of the United States.

"It will suffice, therefore, on the present occasion, first, briefly to state
these general views of the President; and, secondly, to show their aj)-
l)lication to the several incidents of this desperate struggle on the .part
of the Cubans to acquire independence and of Spain to maintaiii her
sovereignty, in so far as those incidents have immediately affected the
United States.

"Cuba is the largest insular possession still retained by any p]nr()i)ean

])ower in Ainerica. It is almost contiguous to the United States. It is

]>re-eminently fertile in the production of objects of commerce which are

of constant demand in this country, and, with just regulations for lecip-

396

CHAP. III.] CUBA. [§ 60.

rocal interchauge of commodities, it would aflord a large and lucrative
market for tbe productions of this country. Commercially, as well as
geographically, it is by nature more closely connected with the United
States than with Spain.

"Civil dissensions in Cuba, and especially sanguinary hostilities, such
as are now raging there, produce effects in the United States second in
gravity onlj^ to those which they produce in Spain.

"Meanwhile our political relation to Cuba is altogether anomalous,
seeing that for any injury done to the United States or their citizens in
Cuba we have no direct means of redress there, and can obtain it only
by slow and circuitous action by way of Madrid. The captain-general
of Cuba has, in effect, by the laws of Spain, supreme and absolute au-
thority there for all purposes of wrong to our citizens; but this Govern-
ment has no adequate means of demanding immediate reparation of
such wrongs on the spot, except through a consul, who does not i)0ssess
diplomatic character, and to whose representations, therefore, the
captain general may, if he choose, absolutely refuse to listen. And,
grievous as this inconvenience is to the United States in ordinary times
it is more intolerable now, seeing that, as abundantly appears, the contest
in Cuba is between penins ular Spaniards on the one hand and native-
born Spanish-Americans on the other; the former being the real repre-
sentatives of Spanish force in Cuba, and exerting that force when they
choose, with little, if any, respect for the metropolitan power of Spain.
The captain-general is efficient to injure but not to redress, and if dis-
posed to redress, he may be hampered, if not prevented, by resolute op-
position on the i)art of the Spaniards around him, disobedient alike to
him and to the supreme Government.

"In fine, Cuba, like the former continental colonies of Spain in Amer-
ica, ought to belong to the great family of American Eepublics, with
political forms and public policy of their own, and attached to Europe
by no ties save those of international amity, and of intellectual, com-
mercial, and social intercourse. The desire of independence on the part
of the Cubans is a natural and legitimate aspiration of theirs, because
they are Americans. And while such independence is the manifest ex-
igency of the political interests of the Cubans themselves, it is equally
so that of the rest of America, including the United States.

"That the ultimate issue of events in Cuba will be its independence,
however that issue may be produced, whether by means of negotiation,
or as the result of military operations or of one of those unexpected in-
cidents which so frequently determine the fate of nations, it is impossi-
ble to doubt. If there be one lesson in history more cogent in its teach-
ings than any other, it is that no part of America large enough to con-
stitute a self-sustaining state can be permanently held in forced colonial
subjection to Europe. Complete separation between the metropolis and
its colony may be postponed by the former conceding to the latter a
greater or less degree of local autonomy, nearly approaching to inde-

397

§ ()0.] INTERVENTION. [CHAP. III.

pendence. But iu all cases where a positive antagonism has come to
exist between the mother country and its colonial subjects, where the
sense of oppression is strongly felt by the latter, and especially where
years of relentless warfare have alienated the parties one from another
more widely than they are sundered by the ocean itself, their political
separation is inevitable. It is one of those conclusions which have been
aptly called the inexorable logic of events.

" Entertainiug these views, the President at an early day tendered to
the Spanish Government the good offices of the United States for the
purpose of efiecting, by negotiation, the peaceful separation of Cuba
from Spain, and tlius putting a stop to the further effusion of blood in
the island, and relieving both Cuba and Spain from the calamities and
charges of a protracted civil war, and of delivering the United States
from the constant hazard of inconvenient complications on the side
either of Spain or of Cuba. But the well-intended proffers of the United
States on that occasion were unwisely rejected by Spain, and, as it was
then already foreseen, the struggle has continued in Cuba, with inci-
dents of desperate tenacity on the part of the Cubans, and of argry
fierceness on the part of the Spaniards, unparalleled in the annals of
modern warfare.

" True it is that now, when the war has raged for more-than five years
there is no material change in the military situation. The Cubans con-
tinue to occup3', unsubdued, the eastern and central parts of the island,
with exception of the larger cities or towns, and of fortified points held
by the Government, but their capacity of resistance appears to be un-
diminished, and with no abatement of their resolution to persevere to
the end in repelling the denomination of Spain.

" Meanwhile this condition of things grows, day by day, more and
more insupportable to the United States. The Government is compelled
to exert constantly the utmost vigilance to i)revent infringement of our
law on the part of Cubans purchasing munitions or materials of war,
or laboring to fit out military expeditions iu our ports; we are con-
strained to maintain a large naval force to prevent violations of our
sovereignty, either by the Cubans or the Spaniards ; our people are hor-
rified and agitated by the spectacle, at our very doors, of war, not only
with all its ordinary attendants of devastation and carnage, but with
accompaniments of barbarous shooting of prisoners of war, or their
summary execution by military commissions, to the scandal and dis
grace of the age ; we are under the necessity of interposing continually
for the protection of our citizens against wrongful acts of the local au-
thorities of Spain in Cuba; and the ijublic peace is every moment sub-
ject to be interrupted by some nnforeseen event, like that which re-
cently occurred, to drive us at once to the brink of war with Spain. In
short, the state of Cuba is the one great cause of perpetual solicitude in
the foreign relations of the United States.
398

CHAP. III.] CUBA. [§ 60.

" While the attention of this Government is fixed on Cuba, in the in-
terest of humanity, by the horrors of civil war prevailing? there, we cannot
forbear to reflect, as well in the interest of humanity as in other rela-
tions, that the existence of slave labor in Cuba, and its influence over
the feelings and interests of the peninsular Spaniards, lie at th« founda-
tion of all the calamities which now afflict the island. Except in Brazil
and in Cuba, servitude has almost disappeared from the world. Not in
the Spanish-American Republics alone, nor in the British possessions,
nor in the United States, nor in Russia, not in those countries alone,
but even in Asia, and in Africa herself, the bonds of the slave have been
struck oft", and personal freedom is the all but universal rule and public
law, at least to the nations of Christendom. It cannot long continue in
Cuba, environed as that island is by communities of emancipated slaves
in the other West India Islands and in the United States.

" Whether it shall be put an end to by the voluntary act of the Span-
ish Government, by domestic violence, or by the success of the revolu-
tion of Yara, or by what other possible means, is one of the grave prob-
lems of the situation, of hardly less interest to the United States than
the independence of Cuba.

" The President has not been without hope that all these questions
might be settled by the spontaneous act of Spain herself, she beingmore
deeply interested in that settlement than all the rest of the world. It
seemed for awhile that such a solution was at hand, during the time
when the Government of Spain was administered by one of the greatest
and wisest of the statesmen of that country, or indeed of Europe, Presi-
dent Castelar. Before attaining power, he had announced a line of
policy applicable to Cuba, which, though falling short of the concession
of absolute independence, yet was of a nature to command the appro-
bation of the United States.

" ' Let us,' he declared, on a memorable occasion, ' let us reduce to
formulas our policy in America.

" ' First, the immediate abolition of slavery.

" ' Secondly, autonomy of the islands of Puerto Rico and Cuba, which
shall have a parliamentary assembly of their own, their own adminis-
tration, their own government, and a federal tie to unite them with
Spain as Canada is united with England," in order that we may found
the liberty of those states and at the same time conserve the national
integrity. I desire that the islands of Cuba and Puerto Rico shall
be our sisters, and I do not desire that they shall be transatlantic Po-
lands.'

" I repeat that to such a line of policy as this, especially as it relates
to Cuba, the United States would make no objection ; nay, they could
accord to it hearty co-operation and support, as the next best thing to
the absolute independence of Cuba.

399

§ 60.] INTERVENTION. [CHAP. III.

"Ofcoui.NC the United States would prefer to see all that reinaiDS of
colonial America pass from that condition to the condition of absolute
independence of Europe.

"But we might well accept such a solution of present questions as,
while tefminatiug: the cruel war which now desolates the island and dis-
turbs our political intercourse, should primarily and at the outset abol-
ish the iniquitous institution of slavery, and, in the. second place, should
place Cuba practically in the possession of herself by means of political
institutions of self-government, and enable her, while nominally subject
to Spain, yet to cease to be the victim of Spanish colonial interests, and
to be capable of direct and immediate relations of interests and inter-
course with the other states of America. * * *

" In these circumstances, the question what decision the CJnited
States shall take is a serious and difficult one, not to be determined
without careful consideration of its complex elements of domestic and
foreign policy, but the determination of which may at any moment be
forced upon us by occurrences either in Spain or in Cuba.

" Withal the President cannot but regard independence, and emanci-
pation, of course, as the only certain, and even the necessary, solution
of the question of Cuba. And, in his mind, all incidental questions are
quite subordinate to those, the larger objects of the United States in
this respect.

" It requires to be borne in mind that, in so far as we may contribute
to the solution of these questions, this Government is not actuated by
any selfish or interested motive. The President does not meditate or
desire the annexation of Cuba to the United States, but its elevation
into an independent Eepublic of freemen, in harmony with ourselves
and with the other Eepublics of America.

" You will understand, therefore, that the policy of the United States
in reference to Cuba at the present time is one of expectancy, but with
positive and fixed convictions as to the duty of the United States when
the time or emergency of action shall arrive. When it shall ariive, you
will receive specific instructions what to do. Meantime, instructed as
you now are as to the intimate purposes of the Government, you are to
act in conformity therewith in the absence of any specific instructions,
and to comport yourself accordingly in all your communications and
intercourse, official or unofficial, with persons or i)ublic men in Spain.

"In conclusion, it remains to be said that, in accordance with the es-
tablished policy of the United States in such cases, as exemplified in
the many changes of government in France during the last eighty years.
and in the Mexican Republic since the time of its first recognition by
us, and in other cases which have oc(;urred in Europe and America, you
will present your credentials to the persons or authorities whom you
may find in the actual exercise of the Executive power of Spain.

" The President has not, as yet, received any official notice of the
termination of the authority of President Castelar and the accession of
400

CHAP. III.] CUBA. [§ 60.

President Serrauo, and, of course, we have no precise information as to
the intention or views of the new executive of the Spanish Republic.

"While we cannot expect from him any more hearty friendship for
the United States than his predecessor entertained, it is to be hoped
that he may not be moved by any unfriendly sentiments toward us. If,
however, such should, unhai)pily, prove to be the case, it would be all
the more necessary that you should be vigilantly watchful to detect and
report anj- signs of possible action in Spain to the prejudice of the
United States."

Mr. Fish, Sec. of State, to Mr. Gushing, Feb. 6, 1874. MSS. Inst., Spain ; For.
Eel., 1874.

"The attention of this Government has been frequently called by
citizens of the United States to the wrong done them in the embargo
of their property by the colonial authorities of Cuba for alleged dis-
loyalty, in virtue of a decree of Ajiril 20, 18G9. Their estates have been
seized by arbitrary executive act, without judicial hearing or judgment,
and in manifest violation of the provisions of the treaty of 1795. In
many instances the seizure has been made with such improvidence and
want of consideration, tliat the property of one person has been seized
for the alleged otfeuse of another. Promises were made, from time to
time, to release some of these estates, which promises were evaded or
deferred for insufficient reasons. In some cases, after promise had been
given to disembargothe ])roperty, it was leased to strangers for a series
of years, so as to render the order of disembargo ineffectual, and to con-
tinue to deprive the owner of the possession and use of his property.

" Of course, no relief in the premises could be obtained by the action
of the Mixed Commission sitting at Washington, and this Department
continually insisted that the ])roperty itself should be restored to the
owners by the same executive authority which made the seizure, leav-
ing only the question of resulting damages to the consideration of the
Commission.

" You are referred to the frequent and earnest instructions to your
predecessor with regard to these cases. After various repeated and ur-
gent remonstrances, the late Government of Spain, on the 12th of July,
1873, on the recommendation of the minister of the colonies, setting
forth the illegality of these acts of sequestration, their injustice to the
parties interested, and their injuriousness even to the public interests,
all embargoes put upon thei)roperty of alleged disloyal persons in Cuba
were declared removed from the date when the decree should reach" the
capital ; it W' as ordered that all property disembargoed should be forth-
with delivered up to its owners or their legal representatives; and a
commission was appointed to hear and decide summarily ui)on sill such
applications as might be made by the interested ])arties.

" Notwithstanding the imperative character of this decree, no regard
was paid to it in Cuba for a length of time ; it was not officially i)ub-

S. Mis. 1C2— VOL. I 2f> 40X

§ 60.] INTERVENTION. [CHAP. III.

lisbed there, and the authorities at Havana even proceeded to advertise
for sale embargoed property belonging- to citizens of the United States.
These instances led to further remonstrances on the part of the United
States.

"At length, contemporaneously with the official visit of Seuor Soler y
Pla, minister of ultramar, to Cuba, partial execution was given to the
decree of July 12, 1873, in so far as it applied to several of the parties
named in a list communicated to the Spanish Government by this De-
partment.

^ It is now learned that in the case of some of the estates covered by
that decree, and ordered by the commission to be delivered to the own-
ers, delivery is obstructed on the allegation that the estates are subject
to leases to third parties for a series of years, by which the owners are
not only deprived of the actual possession of their property, and of the
income which it would yield in their hands, but the property itself is
undergoing waste and depreciation. '

"The leases which are thus interposed as a justification for continu-
ing to disregard the decree of the home Government and the assurances
given to this Government, and in continued violation of the rights of
our citizens, are understood to be leases given by some pretended
authority subsequent to the act of embargo.

" In some cases (that of Eamon Fernandez Criado y Gomez, for in-
stance), it appears that the authorities claim that the property was un-
der judicial embargo and finally confiscated.

" The chronological series of papers which accompany my Xo. 2, of
even date with this, contain copies of the correspondence, telegraphic
and otherwise, on this subject between this Department and its agents
and the Spanish authorities. On examining it, you will find that the
Spanish Government has practically admitted that the seizure and re-
tention of these estates was a violation of the rights of the proprietors.

" You will therefore make"it your first duty after your credentials are
presented in Madrid, to represent to the Government there, courteously
but firmly, that the President expects to see the estates of American
citizens which have been seized in Cuba in violation of the provisions
of the treaty of 1795, whether by embargo or by confiscation, restored
to them without further delay, and without any incumbrance imposed
by Spanish authority in Cuba.

" He does not question the willingness of the authorities at Madrid
to comply with these expectations. It will be your duty, while giving
assurances of our convictions of the good- will of the Spanish Govern-
ment in this respect, to leave no .doubt of our expectations that it will
find means to compel its insubordinate agents in Cuba to carry into exe-
cution its agreements with this Government res])ecting these estates."

Mr. Fish, Sec. of State, to Mr. Cnshiiij.-, Feh.G, 1874. MSS. Inst., Spaiu ; For.
Rel., 1«74.

402

CHAP. III.] CUBA. [§ 60.

''The deplorable strife in Cuba continues without any marked change
in the relative advantages of the contending' forces. The insurrection
continues, but Spain has gained no superiority. Six years of strile give
to the insurrection a significance which cannot be denied. Its duration
and the tenacity of its adherence, together with the absence of mani-
fested power of suppression on the part of Spain, cannot be controverted,
and may make some positive steps on the part of other powers a matter
of self-necessity. I had confidently hoped at this time to be able to
announce the arrangement of some of the important questions between
this Government and that of Spain, but the negotiations have been i)ro-
tracted. The urdiappy intestine dissensions of Spain command our pro-
found sympathy, and must be accepted as perhaps a cause of some
delay. An early settlement, in part at least, of the questions between
the Governments is hoped. In the mean time, awaiting the results of
immediately [)euding negotiations, I defer a further and fuller commu-
nication on the subject of the relations of this country and Spain."

President Grant, Sixth Annual Message, 1874.

"The Government of Great Britain may possibly, of its own accord,
think proper, in view of its own interests, to co-operate with the United
States in this efibrt to arrest a cruel war of devastation. This, how-
ever, is a question to be raised by Her Majesty's Government. Hu-
manity, its own great interests, and a regard for the preservation of the
peace of the world, it is believed, will, without doubt, lead it to support
the position which this Government has at length been forced to assume,
and to address its representatives in Madrid to that end."

Mr. Fish, Sec. of State, to Mr. Schenck, Nov. 5, 1875. MSS. Inst., Gr. Brit.

" You will read this instruction, 266, or state orallj^ the substance there-
of, to the minister of foreign affairs confidentially' (but will not give a
copy thereof), and will assure him of the sincere and earnest desire of
the President for a termination of the disastrous conflict in Cuba by the
spontaneous action of Spain, or by the agreement of the parties thereto.

"You will further state that the President is of opinion that should
the Government to which you are accredited find it consistent with its
views to urge upon Spain the importance and necessity of either ter-
minating or abandoning this contest, which now after a continuance of
seven years has not advanced toward a prospect of success on either
side, but which is characterized by cruelties, by violations of the rules
of civilized modern warfare, by pillage, desolation, and wanton incendia-
rism, threatening the industry, capacity, and production of an extended
and fertile country, the friendly exx^ression of such views to Spain
might lead that Government to a dispassionate consideration of the
hopelessness of the contest, and tend to the earlier restoration of peace
and prosperity to Cuba, if not to the preservation of the peace of the
world.

403

§ 60.] INTERVENTION. [CHAP. III.

"Such a course ou the part of the Goverumeut to >vhich you are ac-
credited would be exceedingly^ satisfactory to the United States, and, in
the opinion of the President, conducive to the interests of every com-
mercial nation and of humanity itself."

Mr. Fish, Sec. of State, to Mr. Orth, Nov. 15, 1875. MSS. Inst., Austria.

"Eead inclosure to 805 as soon as opportunity will admit. You will
explain that intervention is not contemplated as an immediate resort,
but as a contingent necessity in case the contest be prosecuted and sat-
isfactory adjustment of existing griefs be not reached, and that we sin-
cerely desire to avoid any rupture, and are anxious to maintain peace
and establish our relations with Spain on a permanent basis of friend-
ship. I now state, further, for your own information and for your guid-
ance in your interview with minister, that message will discountenance
recognition of belligerency or independence ; will allude to intervention
as a possible necessity, but will not advise its present adoption. Cash-
ing is instructed to communicate to minister without waiting result of
your interview, but you will communicate with him, in cipher, after
your interview."

Mr. Fish, Sec. of State, to Mr. Schenck, Nov. 27, 1875. (Telegruui), MSS. last.,
Gr. Brit.

" The past year has furnished no evidence of an axiproaching termina-
tion of the ruinous conflict which has been raging for seven years in
the neighboring Lsland of Cuba. The same disregard of the laws of
civilized warfare and of the just demands of humanity which has here-
tofore called forth expressions of condemnation from the nations of
Christendom has continued to blacken the sad scene. Desolation,
ruin, and pillage are pervading the rich fields of one of the most fertile
and productive regions of the earth, and the incendiary's torch, tiring
plantations and valuable factories and buildings, is the agent marking
the alternate advance or retreat of contending parties.

"The protracted continuance of this strife seriously afiects the inter-
ests of all commercial nations, but those of the United States more
than others, by r.ason of close proximity, its larger trade and inter-
course with Cuba, and the frequent and intimate personal and social
relations which have grown up between its citizens and those of the
island. Moreover, the property of our citizens in Cuba is large, and is
rendered insecure and depreciated in value and in capacity of produc-
tion by the continuance of the strife and the unnatural mode of its con-
duct. The same is true, differing only in degree, with respect to the in-
terests and people of other nations ; and the absence of any reasonable
assurance of a near termination of the conflict must, of necessity, soon
compel the states thus suflering to consider what the interests of their
own poo^de and their duty toward themselves may demand.

" X have hoped that Spain would be enabled to establish peace in her
colony, to afford security to the property and the interests of our citi-
zens, and allow legitimate scope to trade and commerce and the natural
404

CHAP. III.] CUBA. [§ 60.

l)rodnction8 of the island. Because of this hope, and of an extreme
reluctance to interfere in the most remote manner in the affairs of
another and friendly nation, especially of one whose sympathy and
friendship in the struggling infancy of our own existence must ever be
remembered with gratitude, I have patiently and anxiously waited
the progress of events. Our own civil conflict is too recent for us
not to consider the difficulties which surround a Government distracted
by a dynastic rebellion at home, at the same time that it has to cope
with a separate insurrection in a distant colony. But whatever causes
may have produced the situation which so grievously affects our in-
terests, it exists, with all its attendant evils operating directly upon
this country and its people. Thus far all the efforts of Spain have
proved abortive, and time has marked no improvement in the situation.
The armed bands of either side now occupy nearly the same ground
as in the past, with the difference, from time to time, of more lives
sacrificed, more property destroyed, and wider extents of fertile and
productive fields and more and more of valuable property constantly
wantonly sacrificed to the incendiary's torch.

" In contests of this nature, where a considerable body of people, who
have attempted to free themselves of the control of the superior Gov-
ernment, have reached such point in occupation of territory, in power,
and in general organization as to constitute in fact a body-politic, hav-
ing a government in substance as well as in name, possessed of the
elements of stability, and equipped with the machinery for the admin-
istration of internal polic^^ and the execution of its laws, prepared and
able to administer justice at home, as well as in its dealings with other
powers, it is within the province of those other powers to recognize its
existence as a new and independent nation. In such cases other nations
simply deal with an actually existing condition of things, and recog-
nize as one of the powers of the earth that body-i)olitic which, i)0ssess-
iug the necessary elements, has, in fact, become a new power. In a
word the creation of a new state is a fact.

"To establish the condition of things essential to the rectognition of
this fact, there must be a people occupying a known territory, united
under some known and defined ibrm of government, acknowledged by
those subject thereto, in which the functions of government are admin-
istered by usual methods, competent to mete out justice to citizens and
strangers, to afford remedies for public and for private wrongs, and
able to assume the correlative international obligations, and capable of
performing the corresponding international duties resulting from its
acquisition of the rights of sovereignty. A i)ower should exist complete
in its organization, ready to take and able to maintain its place among
the nations of the earth.

" While conscious that the insurrection in Cuba has shown a strength
and endurance which make it at least doubtfnl whether it be in the
power of Spain to subdue it, it seems unquestionable that no such civil

405

§ 60.] INTERVENTION. [CHAP. III.

organization exists which may be recognized as an independent govern-
ment capable of performing its international obligations and entitled to
be treated as one of the powers of the earth. A recognition un<ler such
circumstances would be inconsistent with the facts, and would compel
the power granting it soon to support by force the government to which
it had really given its only claim of existence. In my judgment, the
United States should adhere to the policy and the principles which Lave
heretofore been its sure and safe guides in like contests between re-
volted colonies and their mother country, and, acting only upon the
clearest evidence, should avoid any possibility of suspicion or of impu-
tation.

" A. recognition of the independence of Cuba being, in my opinion,
impracticable and indefensible, the question which next presents itself
is that of the recognition of belligerent rights in the parties to the con-
test.

" In a former message to Congress I had occasion to consider this
question, and reached the conclusion that the conflict in Cuba, dreadful
and devastating as were its incidents, did not rise to the fearful dignity
of war. Regarding it now, after this lapse of time, I am unable to see
that any notable success, or any marked or real advance on the part of
the insurgents, has essentially changed the character of the contest. It
has acquired greater age, but not greater or more formidable propor-
tions. It is possible that the acts of foreign powers, and even acts of
Spain herself, of this very nature, might be pointed to in defense of such
recognition. But now, as in its past history, the United States should
carefully avoid the false lights which might lead it into the mazes of
doubtful law and of questionable propriety, and adhere rigidly and
sternly to the rule, which has been its guide, of doing only that
which is right and honest and of good report. The question of accord-
ing or of withholding rights of belligerency must be judged, in every
case, in view of the particular attending facts. Unless justified by
necessiry, it is always, and justly, regarded as an unfriendly act, and
a gratuitous demonstration of moral support to the rebellion. It is
necessary, and it is required, when the interests and rights of another
Government or of its peo])le are so far affected by a pending civil con-
flict as to require a definition of its relations to the parties thereto.
But this conflict must be one which will be recognized m the sense of
international law as war. Belligerence, too, is a fact. The mere exist-
ence of contending armed bodies, and their occasional conflicts, do not
constitute war in the sense referred to. Ai)plying to the existing con-
dition of aflairs in Cuba the test recognized by publicists and writers
on international law, and which have been observed by nations of dig-
nity, honesty, and power, when free from sensitive or selfish and un-
worthy motives, I fail to find jn the insurrection the existence of such
a substantial political organization, real, palpable, and manifest to the
world, having the forms and capable of the ordinary functions of gov-
406

CHAP. III.] CUBA. [§ 60.

eruinent toward its owu people and to other states, witli couits for the
administration of justice, with a local habitation, possessing;' such organ-
ization of force, such material, such occupation of tt^rritory, as to take
the contest out of the category of a mere rebellious insurrection, or
occasional sliirmishes, and place it on the terrible footing of war, to
which a recognition of belligerency would aim to elevate it. The con-
test, moreover, is solely on land; the insurrection has not i)0sst'ssed
itself of a single sea-port whence it may send forth its Hag, nor has it
any means of communication with foreign jiowers except through the
military lines of its adversaries. No apprehension of any of those sud-
den 11 ud difUcult comi)lications which a war upon the ocean is apt to
precipitate upon the vessels, both commercial and national, and upon
the consular officers of other powers, calls for the definition of their re-
lations to the parties to the contest. Considered as a question of expe-
diency, I regard the accordance of belligerent rights still to be as unwise
and premature, as I regard it to be, at present, indefensible as a meas-
ure of right. Such recognition entails upon the country according the
rights which flow from it difficult and complicated duties, and requires
the exaction from the contending parties of the strict observance of their
rights and obligations. It confers the right of search upon the high
seas by vessels of both parties ; it would subject the carrying of arms
and munitions of war, which now may be transported freely and without
interruption in the vessels of the United States, to detention and to pos-
sible seizure; it would give rise to countless vexatious questions, would
release the parent Government from responsibility for acts done by the
insurgents, and would invest Spain with the right to exercise the supervis-
ion recognized by our treaty of 1795 over our commerce on the high seas,
a very large part of which, in its traffic, between the Atlantic and the Gulf
States, and between all of them and the States on the Pacific, passes
through the waters which wash the shores of Cuba. The exercise of this
supervision could scarce fail to lead, if not to abuses, certainly to collis-
ions perilous to the i)eaceful relations of the two states. There can be
little doubt to what result such supervision would before long draw this
nation. It would be unworthy of the United States to inaugurate the
possibility of such result, by nieasures of questionable right or expe-
diency, or by any indirection. Apart from any question of theoretical
right, I am satisfied that, while the accordance of belligerent rights to
the insurgents in Cuba might give them a hope, and an inducement to
protract the struggle, it would be but a delusive hope, and would not
remove the evils which this Government and its people are experien-
cing, but would draw the United States into complications which it has
waited long and already suffered much to avoid. The recognition of
independence or of belligerency being thus, in my judgment, equally
inadmissible, it remains to consider what course shall be adopted should
the conflict not soon be brpught to an end by acts of the parties them-

407

§ 60.] INTERVENTION. [CHAP. III.

selves, and should the evils which result therefrom, affecting all nations,
and particularly the United States, continue.

"In such event, I am of opinion that other nations will bo compelled
to assume the responsibility which devolves upon them, and to seriously
consider the only remaining measures possible, mediation and interven-
tion. Owing, perhaps, to the large expanse of water separating the
island from the peninsula, the want of harmony and of personal sym-
pathy between the inhabitants of the colony and those sent thither to
rule them, and want of adaptation of the ancient colonial system of
Europe to the present times and to the ideas which the events of the
past century have developed, the contending parties appear to have
within themselves no depository of common confidence to suggest wis-
dom when passion and excitement have their sway, and to assume the
part of peace-maker. In this view, in the earlier days of the con-
test the good offices of the United States as a mediator were tendered
in good faith, without any selfish purpose, in the interest of humanity
and in sincere friendship for both parties, but were at the time declined
by Spain, with the declaration, nevertheless, that at a future time they
would be indispensable. 'No intimation has has been received that in the
opinion of Spain that time has been reached. And yet the strife contin-
ues, with all its dread horrors, and all its injuries to the interests of the
United States and of other nations. Each party seems quite capable
of working great injury and damage to the other, as well as to all the
relations and interests dependent on the existence of peace in the island;
but they seem incapable of reaching any adjustment, and both have
thus far failed of achieving any success whereby one party shall pos-
sess and control the island to the exclusion of the other. Under these
circumstances, the agency of others, either by mediation or by interven-
tion, seems to be the only alternative which must, sooner or later, be
invoked for the termination of the strife. At the same time, while thus
impressed, I do not at this time recommend the adoption of any meas-
ure of intervention. I shall be ready at all times, and as the equal
friend of both parties, to respond to a suggestion that the good offices
of the United States will be acceptable to aid in bringing about a peace
honorable to both. It is due to Spain, so far as this Government is
concerned, that the agency of a third power, to which I have adverted,
shall be adopted only as a last expedient. Had it been the desire of the
United States to interfere in the affairs of Cuba, repeated opportunities
for so doing have been presented within the last few years; but we have
remained passive, and have performed our whole duty and all interna-
tional obligations to Spain with friendship, fairness, and fidelity, and
with a spirit of patience and forbearance which negatives every possi-
ble suggestion of desire to interfere or to add to the difficulties with
which she has been surrounded.

"The Government of Spain has recently submitted to our minister at
Madrid certain proposals which, it is hopetl, may be found to be the
408

CHAP, in.] CUBA. [§ 60.

basis, if not the iictual submission, of terms to meet the requirements
of the particular griefs of which this Government has felt itself enti-
tled to c()mi)lain. These proposals have not yet reached me in their
full text. On their arrival they will be taken into careful examination,
and may, I hope, lead to a satisfactory adjustment of the questions to
which they refer, au<l remove the possibility of future occurrences,
such as have given rise to our just complaints.

" It is understood also that renewed efforts are being made to intro-
duce reforms in the internal administration of the island. Persuaded,
however, that a proper regard for the interests of the United States
and of its citizens entitle it to relief from the strain to which it has
been subjected by the difficulties of the questions and the wrongs and
losses which arise from the contest in Cuba, and that the interests of
humanity itself demand the cessation of the strife before the whole
island shall be laid waste and larger sacrifices of life be made, I shall
feel it my duty, should my hopes of a satisfactorj" adjustment and of
the early restoration of peace and the removal of future causes of com-
plaint be unhappily disappointed, to make a further communication to
Congress at some period not far remote, and during the present ses-
sion, recommending what may then seem to me to be necessary."
President Grant, Seventh Annual Message, 1875.

" It is proper to state, in this connection, that Instruction 26G was
brought to the attention of the Governments of France, Germany,
Russia, Italy, and Austria, although not precisely in the same terms in
which it was communicated to the Government of Great Britain, and
the suggestion was made that should these Governments, in view of
the statements in Instruction 266, which had been communicated to
the Spanish Government, see fit to urge upon Spain the necessity of
abandoning or terminating the contest in Cuba, such course would be
satisfactory to this Government, and conducive to the interests of all
commercial nations.

"Information has been received by telegraph that Germany, Eussia,
and Italy have instructed their representatives at Madrid to urge upon
the Spanish Government the wisdom of restoring peace to Cuba.

"You will also perceive, from Mr. Hitt's dispatch, that the Duke
Decazes contemplated consulting the Government of Great Britain
before deciding on the course which France should adopt. The De-
partment is not advised whether any such conference has been had, nor
as to the conclusion which the Duke Decazes may have reached. An
instruction has, however, been addressed to ^Ir. Ilitt, on that subject.

" It is proper also to say that the note of the loth of November,
from the minister of foreign affairs of Spain, in reference to the partic-
ular reclamations of the United States, while it holds out hopes of an
adjustment of our particular griefs, at the same time makes it neces-

409

§ 60.] INTERVENTION. [CHAP. III.

sary to obtain information on several points, and renders considerable
delay in reaching any conclusion necessary.

"Under these circumstances, and as certain of the European Gov-
ernments have issued instructions to their representatives on the ques-
tion, it is hoped that no misapprehension exists on the part of the Brit-
ish Government to delay instructions which it may be willing to give,
as suggested in my No. 805 to you, supporting the views of this Gov-
ernment as to the necessity of ending the contest in Cuba."

Mr. Fisb, Sec. of State, to Mr. Schenck, Jan. 11, 1876. MSS. Inst., Gr. Brit. ■

The expression to Spain by the United States, in connection with
other powers, of a desire that the civil war in Cuba should be brought
to a close, without, however, taking any decided steps of interference,
it being understood that the United States "neither sought nor desired
any physical force or x^ressure, but simply the moral influence of con-
currence of opinion as to the protraction of the contest," is not incon-
sistent with the traditions of the United States.

Mr. Fish, See. of State, to Mr. Davis, Jan. 20, 1876. MSS. Inst., Germ. See as to

joint interposition in South American wars, Mr. Evarts, Sec. of State, to Mr.

White, July, 1879, ibid. And see infra, §§ 72, 102.
As to suggestions to Spain in reference to restoration of order and prosperity

in Cuba, see Mr. Fish, Sec. of State, to Mr. Gushing, Mar. 1, 18/6. MSS.

Inst., Spain.
As to United States intervention in Cuba, see same to same. Mar. 22, 1876, Hid.

"Another year has passed without bringing to a close the protracted
contest between the Spanish Government and the insurrection in the
Island of Cuba. While the United States have sedulously abstained
from any intervention in this contest, it is impossible not to feel that it
is attended with incidents affecting the rights and interests of American
citizens. Apart from the effect of the hostilities upon trade between
the United States and Cuba, their progress is inevitably accompanied
by complaints, having more or less foundation, of searches, arrests, em-
bargoes, and oppressive taxes upon the property of American residents,
and of unprovoked interference with American vessels and commerce.
It is due to the Government of Spain to say that during the past year
it has promptly disavowed and offered reparation for any unauthorized
acts of unduly zealous subordinates whenever such acts have been
brought to its attention. Xevertheless, such occurrences cannot but
tend to excite feelings of annoyance, suspicion, and resentment, which
are greatly to be deprecated, between the respective subjects and citi
zens of two friendly powers.''

President Hayes, First Annual Message, 1877.

"This Government has more than once been called upon of late to

take action in fulfillment of its international obligations toward Spain.

Agitation in the Island of Cuba hostile to the Spanish Crown having

been fomented by persons abusing the sacred rights of hospitality which

410

CHAP. III.] SAN DOMINGO AND HAYTI. [§ ^^•

our territory afifords, tbe ofificers of this Government have been instrncted
to exercise vigilance to pre\ent infractions of our neutrality laws at
Key West and at other points near the Cuban coast. I am happy to say
that in the only instance where these precautionary measures were suc-
cessfully eluded, the oft'enders, when found in our territory, were subse-
quently tried and convicted."

Pr(;si(l(uit Arthur, Fourth Aimual Message, 1884.

The following citations arc taken from the list of papers concerning foreign relations
attached to the register of the Department of State :

Neutrality between Spain and Cuba. Resolution requesting the President to
issue a neutrality proclamatiou containing the same provisions as that issued
by Spain in 1861 on the occasion of the outbreak of the civil war in United
States. January 10, 187(). (S. Mis. Doc. 29, Forty-fourth Congress, first ses-
sion.)

Intervention of foreign powers j)ropo8ed by the United States to restore order in
Cuba ; condition of affairs in ; correspondence respecting the trial of General
Juan Bnrriel for the massacre of the passengers and crew of the Virginius.
President's message. January 21, 1876. (H. Ex. Doc. 90, Forty-fourth Con-
gress, lirst session.) As to the Virginius, see infra, § 327.

Cuban insurrection. Terms and conditions upon which the surrfender of the in-
surgents has been made. President's message. May 14, 1878. (S. Ex. Doc.
79. Fortjf-tifth Congress, second session.)

Certain diplomatic correspondence with Spain in 1876, in cases of citizens of the
United States condemned to death in Cuba. President's message. May 3,
1882. (S. Ex. Doc. 165, Forty-seventh Congress, first session.)

Cuba and Porto Rico. Discriminating duties on commerce between the United
States and. President's message, transmitting report from the Secretary of
State. January 15, 1884. (S. Ex. Doc. 58, Forty-eighth Congress, first ses-
sion.) — January 30, 1884. Part 2, additional papers.

An elaborate exposition of the relations of the United States to Cuba down to
1868, is given in Mr. W. B. Lawrence's Com. sur droit int., ii, 316^.

(4) San Domingo and Hayti.

§61.

" It is not deemed unreasonable on the part of the Government of
Hayti that it should ask leading- maritime states to guarantee their sov-
ereignty over Samana. The Government of Hayti very properly con-
sults the United States Government with reference to such a guarantee.
The President is gratified also that the Haytian Government has sub-
mitted its views in a proper spirit to Great Britain. Nevertheless, the
question unavoidably calls up that ancient and settled policy of the
United States which disinclines them to the constituting of political-
alliances with foreign states, and especially disinclines them to engage-
ments with foreign states in regard to subjects which do not fall within
the range of necessary and immediate domestic legislation. This policy
would oblige the United States to refrain from making such a guarantee
as Hayti desires, but disclaiming for themselves all purpose or desire

411

^61.] INTERVENTION. [CHAP. III.

to disturb the peace and jseciirity of Hayti, the United States would be
gratified if Great Britain and other maritime states should see tit to
regard the wish of the Government of Hayti in the same S])iiit of justice
and magnanimity."

Mr. Seward, Sec of State, to Mr. Bruce, Aug. lb, 1865. MSS. Notes, Gr. Brit.

It is against the policy of the United States to interfere in contests
between the tituhir Government of Hayti and insurgents.

Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 13, 1869. MSS. Inst., Hayti. Same
to same. Mar. 26, 1873. See Mr. Bayard, Sec. of State, to Mr. Roberts,

Aug. 21, 1885. MSS. lust., Chili.

" During the last session of Congress a treaty for the annexation of
the Eepublic of San Domingo to the United States failed to receive the
requisite two-thirds vote of the Senate. I was thoroughly convinced
then that the best interests of this country, commercially and materially,
demanded its ratification. Time has only confirmed me in this view. I
now firmly believe that the moment it is known that the United States
have entirely abandoned the project of accepting, as a part of its terri-
tory, the island of San Domingo, a free port will be negotiated for by
European nations in the Bay of Samana. A large commercial city
will spring up, to which we will be tributary without receiving corre-
sponding benefits, and then will be seen the folly of our rejecting so great
a prize. The Government of San Domingo has voluntarily sought this
annexation. It is a weak power, numbering probably less than 120,000
souls, and yet possessing one of the richest territories under the sun,
capable of supporting a population of 10,000,000 of people in luxury.
The people of San Domingo are not capable of maintaining themselves
in their present condition, and must look for outside support. They
yearn for the protection of our free institutions and laws — our progress
and civilization. Shall we refuse them?

'' The acquisition of San Domingo is desirable because of its geo-
graphical position. It commands the entrance to the Caribbean Sea and
the Isthmus transit of commerce. It possesses the richest soil, best
and most capacious harbors, most salubrious climate, and the most val-
uable products of the forest, mine, and soil of any of the West India
Islands. Its possession by us will in a few years build up a coastwise
commerce of immense magnitude, which will go far toward restoring to
us our lost merchant marine. It will give to us those articles which we
consume so largely and do not produce, thus equalizing our exports and
imi)orts. In case of foreign war it will give us command of all the
'islands referred to, and thus prevent an enemy from ever again jiossess-
ing himself of rendezvous upon our very coast. At present our coast
trade between the States bordering on the Atlantic and those border-
ing on the Gulf of Mexico is cut into by the Bahamas and the Antilles.
Twice we must, as it were, pass through foreign countries to get by sea
from Georgia to the west coast of Florida.
412

CHAP. III.] SAN DOMINGO AND HAYTI. [§61.

" Sau Domiiigo, with a stable Government uiuior which her immense
resources can be developed, will give remunerative wages to tens of
thousands of laborers not now upon the island. This labor will take
advantage of every available means of transportation to abandon the
adjacent islands and seek the blessings of freedom and its sequence-
each inhabitant receiving the reward of his own labor. Porto Kico and
Cuba will have to abolish slavery, as a measure of self-preservation, to
retain their laborers.

'' San Domingo will become a large consumer of the products of
Northern farms and manufactories. The cheap rate at which her citi-
zens can be furnished with food, tools, and machinery will make it
necessary that contiguous islands should have the same advantages in
order to compete in the production of sugar, coffee, tobacco, tropical
fruits, &c. This will open to us a still wider market for our products.
The production of our own supply of these articles will cut off more
than one hundred millions of our annual imports, besides largely in-
creasing our exports. With such a picture it is easy to see how our
large debt abroad is ultimately to be extinguished. With a balance of
trade against us (including interest on bonds held by foreigners and
money spent by our citizens traveling in foreign lands) equal to the en-
tire yield of the jirecious metals in this country, it is not so easy to see
how this result is to be otherwise accomplished.

"The acquisition of San Domingo is an adherence to the 'Monroe
doctrine' ; it is a measure of national protection ; it is asserting our
just claim to a controlling influence over the great commercial traffic
soon to flow from west to east by way of the Isthmus of Darien; it is
to build up our merchant marine; it is to furnish new markets for the
l)roducts of our farms, shops, and manufactories ; it is to make slavery
insupportable in Cuba and Porto Eico at once, and ultimately so in
Brazil ; it is to settle the unhappy condition of Cuba and end an exter-
minating conflict ; it is to provide honest means of paying our honest
debts without overtaxing the people; it is to furnish our citizens with
the necessaries of everyday life at cheaper rates than ever before ; and
it is, in fine, a rapid stride toward that greatness which the intelligence,
industry, and enterprise of the citizens of the United States entitle this
country to assume among nations.

"In view of the importance of this question, I earnestly urge upon Con-
gress early action expressive of its views as to the best means of acquir-
ing San Domingo. My suggestion is that, by joint resolution of the two
houses of Congress, the Executive be authorized to ap])oint a commis-
sion to negotiate a treaty with the authorities of San Domingo for the
acquisition of that island, and that an appropriation be made to defray
the expenses of such commission. The (piestion may then be deter-
mined, either by the action of the Senate upon the treaty, or the joint
action of the two houses of Congress upon a resolution of annexation,
as in the case of the acquisition of Texas. So convinced am I of the

413

§ 61.] INTERVENTION. [CHAP. III.

advantages to flow from the acquisition of San Domingo, and of the
great disadvantages — 1 might almost say calamities — to flow from non-
acquisition, that I believe the subject has only to be investigated to be
approved."

President Grant, Second Annual Message, 1870.

According to Mr. Blaine (2 Twenty Years in Congress, 458, 461), the
negotiation for the annexation of the Dominican Republic was opened
at the request of the authorities of San Domingo, and it began about
three months after the President's inauguration. " In July General O.
E. Babcock, one of the President's private secretaries, was dispatched
to San Domingo upon an eriand of which the public knew nothing. He
bore a letter of instructions from Secretary Fish, apparently limiting
the mission to an inquiry into the condition, prospects, and resources of
the island. From its tenor the negotiation of a treaty was not at that
time anticipated by the State Department. General Babcock's mis-
sion finally resulted, however, in a treaty for the annexation of the Re-
public of Dominica, and a convention for the lease of the bay and pen-
insula of Samana — separately negotiated, and both concluded on the
20th of November, 18G9. The territory included in the Dominican
Republic is the eastern portion of the island of San Domingo, originally
known as Hispaniola. It embraces, perhaps, two-thirds of the whole.
The western part forms the Republic of Hayti. With the exception of
Cuba, the island is the largest of the West India group. The total area is
about 28,000 square miles — equivalent to Massachusetts, ]S^ew Hampshire,
Vermont, and Rhode Island combined. President Grant placed extrav-
agant estimates upon the value of the territory which he supposed was
now acquired under the Babcock treaties. In his message to Congress
he expressed the belief that the island would yield to the United States
all the sugar, coflee, tobacco, and other tropical products which the
country would consume. ' The production of our supply of these ar-
ticles ' said the President, ' will cut ofl" more than 8100,000,000 of our
annual imports, besides largelj' increasing our exports.' * * * 'It is
easy' he went on to say, 'to see how our large debt abroad (after such
an annexation) is ultimately to be extinguished.' He maintained that
'the acquisition of San Domingo will furnish our citizens with the neces-
saries of every-day life at cheaper rates than ever before, and it is in
tine a rapid stride towards that greatness which the intelligence, indus-
try, and enterprise of our citizens entitle this country to assume among
nations.' "

The treaty was rejected by the Senate by a vote of 28 to 28, This,
however, did not cause the withdrawal of the projects by the President.
In his annual message of the succeeding December he reiterated his
belief in terms quoted above.

" The subject," so Mr. Blaine states, "at once led to discussion in both
bran(;hes of Congress, in v/hich tlie hostility to the scheme on the part
of some leading men assumed the tone of personal exasperation towards
General (xrant. So intense was the opposition that the President's friends
in the Senate did not deem it prudent even to discuss the measure which
he recommended. As the best that could be done, Mr. Morton, of Indiana,
introduced a resolution empowering the President to appoint three com-
mission<'rs to proceed to San Domingo and make certain inquiries into the
political condition of the island, and also into its agricultural and commer-
cial value. The commissioners were to have no compensation. Tlieir ex-
i:>enses were to be paid, and a secretary was to be provided. Even in

414:

CHAP. III.] SAN DOMINGO AND HAYTI. [S^ 61.

this mild shape, the resolution was hotly opposed. It was finally ad(>i)ted
by the Senate, but wheu it reached tlie House, that Ixxly refused to eon-
cur, except with a proviso that nothing in this resolution shall be lield,
understood, or construed as committing Congress to the policy of an-
nexing San Domingo. The Senate concurred in the condition thus
attached, and the President approved it. It was i)lain that the Presi-
dent could not carry the annexation scheme, but he courted a searching
investigation in order that the course he had i)ursued might l)e vindicated
by the well considered judgment of impartial men. The President's
selections for the commission were wisely made. Benjamin F. Wade,
of Ohio, Andrew J). White, of New York, and Samuel G. Howe, of
Massachusetts, were men entitled to the highest resi)ect, and their con-
clusions, based on intelligent investigation, would exert large influ-
ence u])on ])ublic opinion. The commission at once visited the island
(carried thither on a United States vessel of Avar), made a thorough ex-
amination of all its resources, held conferences with its leadiug citizens,
and concluded that the policy recommended by General Grant shouhi
be sustained. The commissioners corroborated General Grant's asser-
tion that the island could supply the United States with sugar, cotfee,
and other tropical products needed for our consumi)tion ; and they up-
held the President in his belief that the possession of the island by the
United States would by the laws of trade make slave labor in the neigh-
boring islands unjjrofitable, and render the whole slave and caste sys-
tems odious. In communicating the report, the President made some re-
marks which had a personal bearing. 'The mere rejection by the Senate
of a treaty negotiated by the President,' said he, ' only indicates a differ-
ence of opinion among different dei)artments of the Government, with-
out touching the character or wounding the pride of either. But when
such rejection takes place simultaneously with the charges openly nuide
of corruption on the part of the President, or of those employed by him,
the case is different. Indeed, in such case, the honor of the nation de-
mands investigation. This has been accomplished by the report of the
commissioners, herewith transmitted, and which fully vindicates the
purity of motives and action of those who represented the United States
in the negotiation. And now my task is finished, and with it ends all per-
sonal solicitude on the subject. My duty being done, yours begins, and
I gladly hand over the wliole matter to the judgment of the American
people, and of their representatives in Congress assembled.' The
poiuted remarks of the President were understood as referring to the
speech made by Mr. Sumner when the resolution for the apiwintment
of the commission was pending before the Senate. * * * No further
attempt was made by the President to urge the acquisition of San
Domingo upon Congress. It was evident that neither the Senate nor
House could be induced to approve the scheme, and the Administration
was necessarily compelled to abandon it. Bat defeat did not change
General Grant's view of the question. He held to his belief in its expe-
diency and value with characteristic tenacity.

"In his last annual message to Congress (December, 1870), nearly six
years after the controversy had closed, he recurred to the subject, to
record once more his approval of it. 'If my view,' said he, 'hacl been
concurred in, the country would be in a more prosperous condition to-
day, both politically and financially.' He then proceeded to restate the
question, and to sustain it with the arguments which he had i)resented
to Congress in 1870 and 1871. His last words were, 'I do not present

415

§ 61a.] INTERVENTION. [CHAP. III.

these views uow as a recommendation for a renewal of the subject of
annexation, but I do refer to it to vindicate my previous action in
respect to it.' "

As to convention with Dominican Republic for lease of peninsula and bay
of Samana, see Mr. Seward, Sec. of State, to Mr. Pujol, Jan. 10, 1868. MSS.
Notes, Dom. Rep, Same to same, Jan. 20, 18(58, Jan. 28, 18()8. Mr. Evarts,
Sec. of State, to Mr, Delmoute, Feb. 19, 1880, ibid.

Senate Ex. Doc. No. 34, 41st Cong., 3d sess., gives President Grant's message of
Feb. 7, 1871, forwarding correspondence in respect to the prior negotiations
as to San Domingo.

The message of President Grant of Apr. 5, 1871, communicating the report of
the commission of inquiry to the island of San Domingo, is given in Senate
Ex. Doc. No. 9, 42d Cong., 2d sess. See also Senate Ex. Doc. No. 35, 42d
Cong., Ist sess. Other papers relative to such annexation are in Senate Ex.
Doc. No. 17, 4l8t Cong., 3d sess. ; House Ex. Doc. No. 42, 41st Cong., 3d sess.

(5) Danish West Indies.
§ 61a.

There is no printed executive summary of the negotiations for the
Danish West Indies.

So far as can be learned from the archives of this Department, nego-
tiations were commenced by Mr. Seward, Secretary of State, on July 17,
1866,by a note to the Danish minister, General Eaasloft", offering 85,000,000
gold for the three islancis to be delivered, with all fixed public property
therein, without conditions or incumbrances. General Raasloff having
shortly afterwards returned to Denmark to accept Waq ministry of war,
the negotiations were transferred to Copenhagen, where thej^ were con-
ducted by Mr. Yeaman, our minister there, on our part, and for the Dan-
ish Government, by Count Frijs, minister of foreign affairs, and General
Raasloff". No counter-proposal was made until May 17, 1SG7, by the
Danish Government. Then Count Frijs told Mr. Yeaman that Den-
mark expected $15,000,000 gold for the three islands, and that it
would not cede them without the consent of the inhabitants ; but that
as his Government could not dispose of Santa Cruz without the con-
sent of France, he was willing to cede St. Thomas and St. John for
$.0,000,000 gold, and to treat separately as to Santa Cruz.

Un May 27, 1867, Mr. Seward sent Mr. Yeaman the draft of a con-
vention such as he desired. In it he offered $7,500,000 for the three
islands on the conditions above stated. And in addition he instructed
Mr. Yeaman that in no case was a stipulation for the consent of the in-
habitants to be inserted in the convention; that permission would be
granted them to leave the island at any time within two years after the
TJnited States took possession of it, if they preferred their original alle-
giance to that of the United States; and that the convention must be
ratified on or before August 4, 1867.

These terms not proving acceptable to Denmark, the negotiations
were i)rolonged until finally Mr. Seward gave up the attempt to fix the
date of ratification, concurred in a stipulation in the convention for the
consent of the inhabitants, and offered $7,500,000 for St. Thomas and
St. -John.

On this basis a treaty was concluded on October 25, 1867. This was
pr()m])tly ratified by Denmark, but the Unit-ed States Senate delayed

416

CHAP. III.] HAWAII. [§ 62.

action on it, and finally rejected it in the session of 1868, as appears by
the records of the Department of State,

As to negotiations for cossion to tlic United States of the Danish West India

Islands, seo more fully Mr. Seward, Sec. of State, to Mr. Yeaman, May 27,

1867; Sept. 23, 1667/. MSS. Inst., Denmark.

"Denmark had no particular desire to sell to the United States, but
was persuaded to do so. Tlie inhabitants of the islands had already
voted to acce))t the United States as their sovereign. The late Mr.
Charles Sumner, then chairman of the committee on foreign relations
of the Senate, who was engaged in a [)ersonal quarrel with the admin-
istration, simply refused to report back the treaty to the Senate, and
he was supported by a sufficient number of his committee and of Sen-
ators to enable the matter to be left in this position. It required new
negotiations to prolong the term of ratitication, and it was with great
difficulty that in a subsequent session the treaty was tinally brought
before the Senate and rejected. As may be imagined, our iiiendly re-
lations with Dennuirk were considerably impaired by this method of
doing business."

Schuyler's Am. Diplomacy, 23/.

(6) Hawaii (Sandwich Islands).

§62. •

"The United States have regarded the existing authorities in the
Sandwich Islands as a Government suited to the condition of the peo-
ide, and resting on their own choice; and the President is of opinion
that the interests of all commercial nations require that that Govern-
ment should not be interfered with by foreign powers. Of the vessels
which visit the islands, it is known that the great majority belong to
the United States. The United States, therefore, are more interested
in the fate of the islands and of their Government than any other na-
tion can be; and this consideration induces the President to be quite
willing to declare, as the sense of the Government of the United States,
that the Government of the Sandwich Islands ought to be respected;
that no power ought either to take possession of the islands as a con-
quest or for the purpose of colonization, and that no power ought to
seek for any undue control over the existing Government, or any ex-
clusive privileges or preferences with it in matters of commerce."

Mr. Webster, Sec. of State, to Messrs. Haalilio and Richards^ Dec. 19, 1«42. (>
Webster's Works, 478.

"Owing to their locality and to the course of the winds which prevail
in this quarter of the world, the Sandwich Islands are the stopping
place for almost all vessels passing from continent to continent across
the Pacific Ocean. They are especially resorted to by the great num-
bers of vessels of the United States which are engaged in the whale-
fishery in those seas. The number of vessels of all sorts and the
amount of property owned by citizens of the United States which are
found in those islands in the course of a year are stated, probably with
sufficient accuracy, in the letter of the agents.

S. Mis. 162— VOL. T 27 • ^^"^

§ 62.] INTERVENTION. [ClIAP. III.

"Just emergiug from a state of barbarism, the Government of tbe
islands is as yet feeble; but its dispositions appear to be just and
pacific, and it seems anxious to improve tbe condition of its people by
the introduction of knowledge, of religious and moral institutions,
means of education, and tbe arts of civilized life.

"It cannot but be in conformity with the interest and tbe wishes of
the Government and tbe people of the United States that this com-
munity, thus existing in the midst of a vast expanse of ocean, should be
respected, and all its rights strictly and conscientiously regarded. And
this must also be the true interest of all other commercial states. Far
remote from the dominions of European powers, its growth and pros-
perity as an independent state may yet be in a high degree useful to
all whose trade is extended to those regions, while its nearer approach
to this continent and the intercourse which American vessels have with
it, such vessels constituting five-sixths of all which annually visit it,
could not but create dissatisfaction on the part of the United States at
any attempt by another power, should such an attempt be threatened
or feared, to take possession of the islands, colonize them, and subvert
the native Government. Considering, therefore, that the United States
possess so very large a share in the intercourse with those islands, it is
deemed not unfit to make the declaration that their Government seeks,
nevertheless, no peculiar advantages, no exclusive control over the
Hawaiian Government, but is content with its independent existence,
and anxiously wishes for its security and prosperity. Its forbearance
in this respect, under the circumstances of the very large intercourse
which American vessels have with the islands, would justify this Gov-
ernment, should events hereafter arise to require it, in making a decided
remonstrance against the adoption of an opposite policy by any other
power. Under the circumstances, I recommend to Congress to provide
for a moderate allowance, to be made out of the Treasury, to the consul
residing there, that, in a Government so new and a country so remote,
American citizens may have respectable authority to which to ajiply for
redress in case of injury to their persons and property, and to whom
the Government of the country may also make known any acts com-
mitted by American citizens of which it may think it has a right to
compLiin."

Meesage of President Tyler, Dec. 30, 1842. G Webster's Works, 463-'4. See
House Ex. Doc. No. 35, 27th Cong., 3(1 sess.

The Hawaiian Islands bear such peculiar relations to ourselves that
"we might even feel justified, consistently with our own principles, in
interfering by force to prevent their falling (by conquest) into the hands
of one of the great powers of Europe."

Mr. Legar6, Sec. of State, to Mr. Everett, June 13, 1843. MSS. Inst., Gr. Brit. See
also Mr. Marcy, Sec. of State, to Mr. Buchanan, Mar. 11, 1853. MSS. Inst.,
Gr. Brit.

418

CHAP. III.] HAWAII. [§ 62.

"TLe Department will be slow to believe tbat the Freueb have any
intention to adopt with reference to the Sandwieh Islands the same policy
NvlMch they have i)nrsued in regard to Tahiti. If, however, in your jnd<^-
ment, it should be warranted bj^ circumstances, you may take a proper
opportunity to intimate to the minister for foreign affairs of France,
that the situation of the Sandwich Islands in respects to our possessions
on the Pacific, and the bonds, commercial and of other descriptions, be-
tween them and the United States are such that we could never with
indifference allow them to i)ass under the dominion or exclusive control
of any other power. We do not ourselves covet sovereignty over them.
We would be content that they should remain under their present rulers,
who, we believe, are disposed to be just and impartial in their dealings
with all nations."

Mr. Clayton, Sec. of State, to Mr. Eives, July 5, 1850. MSS. Inst., France.

" The proceedings of M. Dillon and the French admiral there, in 1849,
so far as we are informed respecting them, seem, both in their origin and
in their nature, to have been incompatible with any iust regard for the
Hawaiian Government as an independent state. They cannot, accord-
ing to our impressions, be accounted for njion any other hypothesis than
a determination on the part of those officers to humble and annihilate
that Government for refusing to accede to demands which, if granted,
must have been at the expense of all self-respect and substantial sover-
eignty. The further enforcement of those demands, which, it ap])ears,
is the object of M. Perrin's mission, would be tantamount to a subjuga-
tion of the islands to the dominion of France. A step like this could
not fail to be viewed by the Government and people of the United
States with a dissatisfaction which would tend seriously to disturb our
existing friendly relations with the French Government. This is a result
to be deplored. If, therefore, it should not be too late, it is hoped that
you will make such representations ui)on the subject to the minister of
foreign affairs of France as will induce that Government to desist from
measures incompatible ^yith the soveriguty and independence of the
Hawaiian Islands, and to make amends for the acts which the French
agents have already (iommitted there in contravention of the law of
nations, and of the treaty between the Hawaiian (Jovernment and
France."

Mr, Webster, Sec. of State, to Mr. Kives, June 19, Idol. MSS. luist., France.

"The Government of the United States was the first to acknowledge
the national existence of the Hawaiian Government, and to treat with
it as an independent state. Its example was soon followed by several
of the Governmentsof Europe, and the United States, true to its treaty
obligations, has in no case interfered Avith the Hawaiian Government for
the purpose of opposing the course of its own independent conduct, or
of dictating to it any particular line of policy. In acknowledging the in-
dependence of the islands and of the Government established over them,

410

§ 62.] INTERVENTION. [CHAP. III.

it was uot seekiii<>- to promote auy peculiar object of its owu. What it
did, and all that it did, was done openly, in the face of day, in entire
good faith, and known to all nations. It declared its real purpose to
be to favor the establishment of a Government at a very important point
in the J^acific Ocean, which should be able to maintain such relations
with the rest of th<' world as are maintained between civilized states.

" From this purpose it has never swerved for a single moment, nor is
it inclined, without the pressure of some necessity, to de])art from it
now, when events have occurred giving to the islands and to their in-
tercourse with the United States a new aspect and increased impor-
tance.

" This Government still desires to see the nationality of the Hawaiian
Government maintained, its independent administration of public affairs
respected, and its pi-osperity and reputation increased.

" But while thus indisposed to exercise any sinister influence itself
over the councils of Hawaii, or to overawe the proceedings of its Gov-
ernment by the menace or the actual application of superior military
force, it expects to see other powerful nations act in the same spirit.
It is, therefore, with unfeigned regret that the President has read the
correspondence and become acquainted with the circumstances occur-
ring between the Hawaiian Government and Mr. Perrin, the commis-
sioner of France, at Honolulu."

Mr. Webster, Sec. of State, to Mr. Severance, July 14, 1851. MSS. Inst., Hawaii.

" The Hawaiian Islands are ten times nearer to the United States
than to any of the powers of Europe. Five-sixths of all their commer-
cial intercourse is with the United States, and these considerations, to-
gether with others of a more general character, have fixed the course
which the Government of the United States will pursue in regard to
them. The annunciation of this policy will not surprise the Govern-
ments of Europe, nor be thought to be unreasonable by the nations of the
civilized world; and that policy is, that while the Government of the
United States itself, faithful to its original assurance, scrui)ulously re-
gards the independence of the Hawaiian Islands, it can never consent
to see those islands taken possession of by either of the great commer-
cial powers of Europe, nor can it consent that demands manifestly un-
just ahd derogatory, and inconsistent with a hona fide indejiendence,
shall be enforced against that Government."

Ihid.

" It is earnestly to be hoped that the diflerences which have for some
time past been pending between the Government of the French Eepub-
lic and that of the Sandwich Islands, may be peaceably and durably
adjusted so as to secure the independence of those islands. Long be-
fore the events which have of late imi)arted so much importance to the
])OSsessions of tlie United States on the Pacific we acknowledged the
independence of the Hawaiian Government. This Government was first
4^0

CHAP, ril.] HAWAII. [§ 62.

ill taking that step, and several of the leading powers of Europe imme-
diatelj' followed. We were influenced in this measure by the existing
and prospective importance of the islands as a place of refuge and re-
freshment for our vessels engaged in the whale fishery, and by the con-
sideration that they lie in the course of the great trade which must, at
no distant day, be carried on between the western coast of North America
and Eastern Asia.

"We were also influenced by a desire that those islands should not
pass under the control of any other great maritime state, but should
remain in an independent condition, and so be accessible and useful
to the commerce of all nations. I need not say that the imi)ortance of
these considerations has been greatly enhanced by the sudden and vast
development which the interests of the United States have obtained in
California and Oregon, and the policy heretofore adopted in regard to
those islands will be steadily pursued."

President Fillmore, Second Annnal Message, 1851.

" You are, no doubt, aware that it has been the constant desire of
this Government to cherish the kindest international relations with the
Sandwich Islands, and to assist them by aU the moral influence it could
exert to sustain their independence. Happily the policy of other Gov-
ernments at present with respect to them seems not to be diflerent from
our own. While we do not intend to attempt the exercise of any ex
elusive control over them, we are resolved that no other power or state
shall exact any political or commercial privileges from them which we
are not permitted to enjoy, far less to establish any protectorate over
them."

Mr. Marcy, Sec. of State, to Mr. Gregg, Sept. 22, 1853. MSS. Inst., Hawaii.

" The intercourse between our Pacific ports and the ports of the dis-
tant East is destined perhaps to be upon as large a scale as that which
we now enjoy with all the world, and the vessels engaged in that trade
must ever resort to the Sandwich Islands for fuel and other supplies, as
has ever been the case with our whale ships in their outward and in-
ward voyages. It is consequently indispensable to our welfare that
the j)olicy which governs them should be liberal, and that it should
continue free from the control of any third country."

Mr. Marcy, Sec. of State, to Mr. Gregg, Sept. 22, 1853. MSS. Inst., Hawaii.

"I do not think the present Hawaiian Government can long remain
in the hands of the present rulers or under the control of the native
inhabitants of these islands, and both England and France are apprised
of our determination not to allow them to be owned by or to fall under
the protection of these powers or of any other European nation.

" It seems to be inevitable that they must come under the control of
this Government, and it would be but reasonable and fair that these

421

§ 62.] INTERVENTION. [CHAP. III.

powers Khould acquiesce in sucii ii disposition of them, provided the
transference was effected by fair means."

Mr. Marcy, Sec. of State, to Mr. Mason, Deo, 16, 1853. MSS. Inst., France.

^' If any foreign connection is to be formed, the <jjeographical position
of these ishmds indicates that it should be with us. Our commerce
with them far exceeds that of all other countries ; our citizens are em-
barked in the most important business concerns of that country, and
some of them hold imi^ortant public positions. In view of the large
American interests there established, and the intimate commercial rela-
tions existing at this time, it might well be regarded as the duty of this
Government to prevent these islands from becoming the appendage of
any other foreign power."

Mr. Marcy, Sec. of State, to Mr. Gregg, Apr. 4, 1854. MSS. Inst., Hawaii.

" This Government will receive the transfer of the sovereignty of the
Sandwich Islands, with all proper provisions relative to the existing
rights and interests of the people thereof, such as are usual and appro-
priate to territorial sovereignty. It will be the object of the United
States, if clothed with the sovereignty of that country, to promote its
growth and prosperity. This consideration alone ought to be a suffi-
cient assurance to the people that their rights and interests will be duly
cherished by this Government."

Mr. Marcy, Sec. of State, to Mr. Gregg, Jan. 31, 1855. MSS. Inst., Hawaii.

" The United States would uot regard with unconcern an attempt on
the part of any foreign power, and especially any European maritime
power, to disturb the repose or interfere with the security of the Hawaiian
Islands."

Mr. Marcy, Sec. of State, to Mr. Lee, Sept. 21, 1855. MSS. Notes, Hawaii.

The public njind in the United States was not, in 1SG8, in a condition
to entertain the question of the annexation of the Sandwich Islands.

Mr. Seward, Sec. of State, to Mr. Spalding, July 5, 1868, MSS. Inst., Hawaii ;
see Mr. J. C. Bancroft Davis to Mr. Peirce, March 15, 1873, ibid.

" The acquisition of territory beyond the sea outside the present con-
fines of the United States, meets the opposition of many discreet men
who have more or less influence in our councils. It cannot be entered
upon without very grave deliberation, and in full view of all the advan-
tages or disadvantages that may result.

" This question in its relation to the Sandwich Islands is full of inter-
est, and has long attracted as a possible question the attention of many
persons here as well as in those islauds. It seems that events are likely
to precipitate it uj)on us for consideration as a i)ractical question.

"The position of the Sandwich Islands as an outpost fronting and
commanding the whole of our possessions on the Pacific Ocean, gives to
the future of those islands a peculiar interest to the Government and
422

CHAP. III.] HAWAII. [§ 62.

people of the United States. It is very clear that this Govtniiineut (-an-
not be expected to assent to their transfer from their present control to
that of any powerful maritime or commercial nation. Such transfer to
a maritime power would threaten a military surveillance in the Pacific
similar to that which Bermuda has afforded in the Atlantic. The latter
has been submitted to from necessity, inasmuch as it was congenital
with our Government, but we desire no additional similar outposts in
the hands of those who may at some future time use them to our disad-
vantage."

Mr. Fish, Sec. of State, to Mr. Peirce, Mar. 25, 1873. MSS. lust., Hawaii.

"The position of the Hawaiian Islands in the vicinitj^ of our Pacific
Coast, and their intimate commercial and political relations with us,
lead this Government to watch with grave interest, and to regard unfa-
vorably, any movement, negotiation, or discussion aiming to transfer
them in any eventuality whatever to another power."

Mr. Blaiue, Sec. of State, to Mr. Lowell, Ayr. 23, 1881. MSS. lust., Gr. Brit.

"Your course, upon the question to which you have called the atten-
tion of the Department, is approved. While I desire earnestly to avoid
the use of imperative language toward the Hawaiian Government, and
prefer that our relation in any cousecpient discussion should be that of
friendly advice and support, this Government cannot permit any viola-
tion, direct or indirect, of the terms and conditions of the treaty" of 1875.

"The treaty was made at the continuous and urgent request of the
Hawaiian Government. It was, as it was intended to be, an evidence
of the friendship of the United States, and was shaped by a large and
liberal disposition on our part to c<5iisult the wishes and interests of the
Hawaiian Government. As you are aware, there was much opposition
to some of its concessions by our own citizens whose capital was em-
ployed in certain agricultural industries. The term of the treaty was
limited in order that both parties might obtain practical experience of
its operation, and in order to secure the experiment from ])ossible dis-
turbance it was expressly stipulated —

"'On the part of His Hawaiian Majesty, that so long as this treaty
shall remain in force, he will not make any treaty by which any other
nation shall obtain the same privileges, relative to the admission of any
articles free of duty, hereby secured to the United States.' (Article 1 V. )

" It would be an unnecessary waste of time and argument to under-
take an elaborate demonstration of a proposition so obvious ;is that the
extension of the privileges of this treaty to other nations under a •' most-
favored-natiou clause" in existing treaties, would be as flagrant a vio-
lation of the explicit stipulation as a specific treaty making the con-
cession.

"You are instructed to say to the Hawaiian Government that the
Government of the United States considers this stipulation as of the
very essence of the treaty, and cannot consent to its abrogation or modi-

423

^62.] INTERVENTION. • [CHAP. III.

fication, directly or indirectly. You will add that if any other power
should deem it proper to employ undue influence upon the Hawaiian
Government to persuade or compel action in derogation of this treaty,
the Government of the United States will not be unobservant of its
rights and interests, and will be neither unwilling nor unprepared to
support the Hawaiian Government in the faithful discharge of its treaty
obligations.

"In reference to the probability of a judicial construction of the
treaty by the Hawaiian courts, upon proceedings instituted by a British
merchant, I would have been glad if you had been able to furnish me
with the correspondence between the British commissioner and the Ha-
waiian secretary for foreign affairs. From your history of the contro-
versy, I lind it difficult to understand how Her Britannic Majesty's
Government can consistently maintain a right of diplomatic interven-
tion for the settlement of any claim for the difference in duty imposed
under the British treaties and under the treaty with the United States.

"Be that as it may, a judicial decision of this question by the Ha-
waiian courts would be as unsatisfactory to the United States as to
Great Britain. I am not aware whether or not a treaty, according to
the Hawaiian constitution, is, as with us, a supreme law of the land,
upon the construction of which — the proper case occurring — every citi-
zen would have the right to the judgment of the courts.

"But even if it be so, and if the judicial department is entirely inde-
pendent of the executive authority of the Hawaiian Government, then
the decision of the court would be the authorized interpretation of the
Hawaiian Government, and, however binding uijon that Government,
would be none the less a violation o*" the treaty.

"In the event, therefore, that a judicial construction of the trea-ty
should annul the privileges stipulated, and be carried into practical
execution, this Government would have no alternative, and would be
compelled to consider such action as the violation by the Hawaiian
Government of the express terms and conditions of the treaty, and,
with whatever regret, would be forced to consider what course in refer-
ence to its own interests had become necessary upon the manifestation
of such unfriendly feeling.

"The diligence and ability which you have given this subject render
perhaps any further instruction unnecessary, but I will suggest that in
your communications with the Hawaiian Government it is desirable
that you should convey the impression that the Government of the
United States believes that the Hawaiian Government desires and
intends to carry out the provisions of the treaty in ]ierfect good faith,
and that we understand and appreciate the urijust pressure of foreign
interests and influence brought to divert it from its plain and honor-
able duty. The position of the Government of the United States in
your representations should be rather that of encouragement of the
424

CHAP. III.] HAWAII. [§ G2.

Hawaiian Government to persevere in the faithful diischargeof its treaty
obligations, than complaint of any anticipated dereliction."

Mr. Blaiue, Sec. of State, to Mr. Comly, June 30, 1381. MSS. Inst., Hawaii ;
For. Eel.. 1881.

"In your dispatcli Xo. 189 you have informed this Department of
the efforts made by the British commissioner to prejudice the interests
and influence of the United States in the Hawaiian Islands; and you
properly assume that such eflbrts, so far as they tend to im])rovc the
diplomatic jiosition of his country by his personal conduct, must be
counteracted by similar endeavors on your part without the formal
intervention of this Government.

"The action of the Government must necessarily wait upon the actual
occurrence or threatened probability of some official transaction in con-
flict with its treaty rights. But with the proper information before it
the Department would undoubtedly instruct you to anticipate any such
transaction by such diplomatic remonstrance as our relations with
Hawaii would justify.

"It is difficult to say that the information derived through the news-
papers in reference to a supposed coolie convention with Great Britain
is of a character to require our official intervention. But I take it for
granted that, since the return of King Kalakaua, you will be able to
learn whether such a convention is contemplated, and if, in your opin-
ion, there is enough in the general rumors to warrant it, you will con-
sider yourself as instructed to make formal inquiry of the Hawaiian
Government if any such project is entertained.

" You say that the proposed convention provides for a 'protector of the
coolie immigrants,' who tries all cases of disputes arising among the
coolies themselves, and also between coolies and citizens of the coun-
try where they reside; and cases of an appeal from his judgment go,
not to the courts of the country, but to the British consul or diplomatic
representative.

"I do not understand whether this is a recital from some existing
convention or a rumor of what the contemplated conventimi is expected
to be.

"In the treaty between Great Britain and the Netherlands relative to
emigration of laborers from India to the Dutch colony of Surinam,
signed in 1870 and ratified in 18713, and which is the most recent to
which I have been able to refer, I find the following provision :

"XIX. All emigrants within the provision of this convention -shall,
in the same manner as other subjects of the Ibitish Crown, and con-
formably to the ordinary rules of international law, enjoy in the Neth-
erland colony the right of claiming the assistance of the British con-
sular agent; and no obstacle shall be opposed to the laborers resorting
to the consular agent, and communicating with him, without prejudice,
however, to the obligations arising out of his engagements.'

425

§ 62.] INTERVENTION. [CHAP. III.

''Properly iuterproted ami fairly applied, I do not see any reasonable
ground ot'objeetion to this or to a similar provision. But a convention
coiitaiuiu^;- stipulations such as you describe would be very different.
To secure to the coolie ininii.tj:rants from India, who are unquestionably
British subjects, sut^li an extreme privilege of exterritoriality would be
exrendiui;- them advantages not ])ossessed by the subjects of any other
power. And as Artie es VIII and X of the treaty between the United
States and th(» Hawaiian Islands of 1840 guarantee to the citizens and
(•onsular ofhcers of the Unitetl States the treatment of the njost favored
nation, and a jiarticipation in all itrivileges granted to others, the United
States would have to insist upon equal treatment for its citizens and
consuls, and it can scarcely be <l()ubted that other ])owers would make
the same demand.

''A consideration of the embarrassmeni which such a condition of for-
< ign rights and privileges would create for the Hawaiian Government,
would i)resent almost insuperable difitlculties in the way of such a con-
vention.

'•But if negotiations such as you describe are really in progress, you
will ask for an interview with the secretary for foreign affairs and make
the following representation of the views of the United States :

" The Government of the Uuited States has, with unvarying consist-
ency, manifested respect for the indejiendeuce of the Hawaiian King-
dom, and an earnest desire for the welfare of its ])eople. It has always
felt and acted on the conviction that the possession of the islands by a
peaceful and prosperous power, with which there was no possibility of
<-ontroversy or collision, was most desirable, in reference to its own large
and ra})idly increasing interests on the Pacific. It has declined, even
at the request of the Hawaiian people, to assume over their affairs a
protectorate, which would only be a thinly disguised domination, and it
has confined its efforts and influence to strengthen their Government,
and open to their commerce and enterprise the readiest and most i)rofit-
able connection with its own markets; but this policy has been based
upon our belief in the real and substantial independence of Hawaii. The
Government of the United States has always avowed and now repeats
that, under no circumstances, will it permit the transfer of the territory
or sovereignty of these islands to any of the great Euroi)ean powers.
It is needless to restate the reasons upon which that determination rests.
It is too obvious for argument that the possession of these islands by
a great maritime power would iu)t oidy be a dangerous diminution of
the Jus', and necessary influence of the United States in the waters of
the Pacific, but in case of international diificulty it would be a positive
threat to interests too large and im[)ortant to be lightly risked.

" Neither can the Government of the Uuited States allow an arrange-
ment which, by diplomatic finesse or legal technicality, substitutes for
the native and legitimate constitutional Government of Hawaii, the con-
trolling influence of a great foreign power. This is not the real and
426

CHAP. III.] HAWAII. [§ 62.

substantial iDdepeudeiicc which it desires to see and wiiich it is pre-
pared to support. xVnd this (ioverninent would consider a scheme by
which a large mass of British subjects, forming in time not improbably
the majority of its population, should be introduced into Hawaii, made
independent of the native Government, and be ruled by British author-
ities, judicial and dii)lomatic, us one entirely inconsistent with the
friendly relations now existing between us, as trenching upon treaty
rights which we have secured by no small consideration, and as certain
to involve the two countries in irritating and uuprolitable discussion.

" In thus instructing you, however, I must impress upon you tliat
much is trusted to your discretion. There would be neither propriety
nor wisdom in making such declarations unnecessarily or prematurely.
If, therefore, you tind that the proposed convention is not one with the
extreme provisions to which you refer, or if you have reason to believe
that your rei)resentations of the unfriendly impression which it would
make here will be sufficient to change the i)urpose of the Hawaiian Gov-
ernment, you will confine yourself to ordinary diplomatic remonstrance.
And, in any event, it will be prudent to indicate that such would, in
your opinion, be the view taken by this Government before making the
formal protect, which, under the contingency of persistent adverse
action on the part of the Hawaiian Government, yoa are authorized to
make."

Mr. Bkiine, Sec. of State, to Mr. Comly, Nov. 19, 1881. MSS.Iust., Hawaii;
For. Eel., 1831.

" The intelligent and suggestive character of your recent dispatches
naturallyleadsmetoa review of the relationship of the Hawaiian King-
dom to the United States at somewhat greater length than was practi-
cable in the limited scope of my instruction of November 19. That
dispatch was necessarily confined to a consideration of the immediate
question of a possible treaty engagement with Great Britain which
would give to that i)ower in Hawaii a degree of extrateiritoriality of
jurisdiction inconsistent with the relations of the islands to the other
powers, and especially to the United States.

" With the abandonment of feudal government by JvingKamehameha
III in 1839, and the inauguration of constitutional methods, tlie history
of the i)olitical relation of Hawaii to the world at large may very prop-
erly be said to begin. The recognition of indepeiulent sovereignty by
the great i)owers took place soon after that act on the part of the United
States, dating frojn 1844. Even at that early day, before the United
States had become a power on the Pacific coast, the commercial activity
of our people was manifested in their intercourse with the islaiuls of
Oceanica, of which the Hawaiian group is the northern extremity. In
1848 the treaty of Guadalupe Hidalgo" confirmed the territorial exten-
sion of the United States to the Pacific, and gave to the Union a coast
line on that ocean little inferior in extent, and superior in natural

427

§ 62.] INTERVENTION. [CHAP. III.

wealtb, to the Atlantic t^eaboard of the origiual thirteen States. In
1848-'49 the discoveries of gold in California laid the foundation for the
marvelous development of the western coast, and, in that sameyear the
necessities of our altered relationship to the Pacific Ocean found expres-
sion in a comprehensive expression of friendship, commerce and navi-
tion with the sovereign Kingdom of Hawaii.

" The material connection between the Hawaiian Islands and the
Pacific coast of the Union was natural and inevitable. But lately
admitted to the family of separate states, Hawaii was necessarily drawn
into closer kinship with California, then just entering on a i^atli of pros-
perity and greatness whose rapidity of development the world has
never seen equaled. Hence the movements toward intimate commercial
relations between the two countries which, after the progressive nego-
tiations of 1856, 1867, and 1869, culminated in the existing reciprocity
treaty of January 30, 1875, 'which gave to the United States in Hawaii,
and to Hawaii in the United States, trading rights and privileges in
terms denied to other countries.

" I have spoken of the Pacific coast line given to the American Union
by the cession of California in 1848, as little inferior in extent, and
superior in natural wealth, to the Atlantic sea-board of the original
Union. Since that time our domain on the Pacific has been vastly in-
creased by the purchase of Alaska. Taking San Francisco as the com-
mercial center on the western slope, a line drawn northwestwardly to
the Aleutiaii. group, marks our Pacific border almost to the confines of
Asia. A corresponding line drawn southwestwardly from San Fran-
cisco to Honolula marks the natural limit of the ocean belt within
which our trade with the oriental countries must flow, and is, moreover,
the direct line of communication between the United States and Aus-
tralasia. Within this belt lies the commercial domain of our western
coast.

" I have had recent occasion to set forth the vitally integral importance
of our Pacific possessions, in a circular letter addressed on the 24th of
June last to our representatives in Europe, touching the necessary
guarantees of the proposed Panama Canal as a purely American water-
way to be treated as part of our own coast line. The extension of com-
mercial empire westward from those States is no less vitally important
to their developnu^nt than is their communication with the eastern coast
by the Isthmian channel. And when we survey the stupendous progress
made by the western coast during the thirty years of its national life
as a part of our dominion, its enormous increase of population, its vast
resources of agriculture and mines, and its boundless enter])rise, it is
not easy to set a limit to its commercial activity or foresee a check to its
maritime supremacy in the waters of the Orient, so long as those waters
atibrd, as now, a free and neutral scope for our p(?aceful trade.

"In thirty years the United States has acquired a legitimately domi-
nant influence in the ^N^orth Pacific, which it can never consent to see
428

CHAP. III.] HAWAII. [§ 62.

decreased by the intrusion therein of auy clement of influence hostile
to its own. Tlic situation of the Hawaiian Islands, jiivinj^ them the
strategic control of the North Pacific, brings their possession within the
range of questions of purely American policy, as much so as that of the
Isthmus itself. Hence the necessity, as recognized in our existing treaty
relations, of drawing the ties of intimate relationship between us and
the Hawaiian Islands so as to make them practically a part of the
American system without derogation of their absolute independence.
The reciprocity treaty of 1875 has made of Hawaii the su;^ar-raising
field of the Pacidc slope, and gives to our manufacturers therein the same
freedom as in California and Oregon. That treaty gave to Hawaii its
first great impetus in trade, and developed that activity of production
which has attractotl the eager attention of European ix)wers, anxious
to share in the prosperity and advantages which the United States
have created in mid-ocean. From 1877, the first full year succeeding
the conclusion of the reciprocity treaty, to 1880, the imports from
Hawaii to the United States nearly doubled, increasing from 82,550,335
in value to $4,606,444, and in this same period the exports from the
United States to Hawaii rose from $1,272,949 to $2,026,170. In a word,
Hawaii is, by the wise and beneficent provisions of the treaty, brought
within the/iircle of the domestic trade of the United States, and our
interest in its friendly neutrality is akin to that we feel in the guaran
teed independence of Panama. On the other hand, the interests of
Hawaii must inevitably turn toward the United States in the future,
as in the present, as its natural and sole ally in conserving the domin-
ion of botli in the Pacific trade. Your own observation, during your
residence at Honolulu, has shown you the vitality of the American
sentiment which this state of things has irresistibly developed in the
islands. I view that sentiment as the logical recognition of the needs
of Hawaii as a member of the American system of states rather than as
a blind desire for a protectorate or ultimate annexation to the American
Union.

"This Government has on previous occasions been brought face to
face with the question of a protectorate over the Hawaiian group. It
has, as often as it arose, been set aside in the interest of such commer-
cial union and such reciprocity of benefits as would give to Hawaii the
highest advantages, and at the same time strengthen its independent
existence as a sovereign state. In this I have summed up the whole
disposition of the United States toward Hawaii in its present condi-
tion.

" The policy of this country with regard to the Pacific is the natural
complement to its Atlantic policy. The history of our European rela-
tions for fifty years shows the jealous concern with which the United
States has guarded its control of the coast from foreign interference,
and this without extension of territorial possession beyond tlie main-
land. It has always been its aim to preserve the friendly neutrality of

429

§ r>2.] INTERVENTION. [CHAP. III.

the adjacent states and insular possessions. Its attitude toward Cuba
is in ])oint. That rich island, the key to the Gulf of Mexico, and the
field for our most extended trade in the Western hemisphere is, though
in the hands of Spain, a part of the American commercial system. Our
relations, present and prospective, toward Cuba have never been more
ably set forth than in the remarkable note addressed by my predecessor,
Mr, Secretary Everett, to the ministers of Great Britain and France in
Washington, on the 1st of December, 1852, in rejection of the suggested
tripartite alliance to forever determine the neutrality of the Spanish
Antilles. In response to the proposal that the United States, Great
Britain, and France should severally and collectively agree to forbid
the acquisition of control over Cuba by any or all of them, Mr. Everett
showed that, without forcing or even coveting possession of the island,
its condition was essentially an American question ; that the renuncia-
tion forever by this Government of contingent interest therein would
be far broader than the like renunciation by Great Britain or France ;
that if ever ceasing to be Spanish, Cuba must necessarily become
American, and not fall under any other European domination, and that
the ceaseless movement of segregation of American interests from Euro-
pean control and unification in a broader American sphere of independ-
ent life could not and should not be checked by any arbitrary agreement. .

" Xearly thirty years have demonstrated the wisdom of the attitude
then maintained by Mr. Everett, and have made indispensable its con-
tinuance and its extension to all parts of the American Atlantic system
where a disturbance of the existing status might be attempted in the
interest of foreign powers. The ])resent attitude of this Government
toward any European project for the control of an Isthmian route is
but the logical sequence of the resistance made in 1S52 to the attempted
])ressure of an active foreign influence in the West Indies.

" Hawaii, although much farther from the Californian coast than is
Cuba from the Floridian peninsula, holds in the western sea much the
same position as Cuba in the Atlantic. It is the key to the maritime
dominion of the Pacific States, as Cuba is the key to the Gulf trade.
The material possession of Hawaii is not desired by the United States
any more than was that of Cuba. But under no circumstances can the
United States permit any change in the territorial control of either
which would cut it adrift from the American system, whereto they both
indispensably belong.

" In this aspect of the question it is readily seen with what concern
this Government must view any tendency toward introducing into
Hawaii new social elements destructive of its necessarily American
character. The steady diminution of the native population of the
islands, amounting to some 10 per cent, between 1S72 and 1878, and
still continuing, is doubtless a cause of great alarm to the Government
of the Kingdom, and it is no wonder that a solution should be sought
with eagerness in any seemingly practicable quarter. The problem, how-
43U

CIIAl'. III.] HAWAII. [§ 62

ever, is not to be met by a substitution of Mongolian supremacy for
native control, as seems at iirst sight possible through the rai)i(l in-
crease in Chinese immigration to the islands. Neither is a wliolesale
introduction of the coolie element, professedly Anglo-Indian, likely to
aftbrd any more satisfactory outcome to the difficulty. The Hawaiian
Islands cannot be joined to the Asiatic system. If they drift from their
iii(Iei)endent station it must be toward assimilation and identification
with the American system, to which they belong by the operation of
natural laws and nuist belong by the operation of political necessity.

"I have deemed it necessary to go, with somewhat of detail, into the
real nature of our relations toward Hawaii, in order that you may iutel-
li;;entl3' construe my recent instructions in the light of our true and
necessary policy on the Pacific. It may also tend to simplify your inter-
course with the native Government if you are in a position to disabuse
the minds of its statesmen of any belief or impression that our course
is selfishly intiiisive or looks merely to the exclusive retention of tran-
sient advantages of local commerce in which other countries seek a
share. The United States was one of the first among the great nations
of the world to take an active interest in the ujibnilding of Hawaiian
independence, and the creation of a new and potential life for its ])eople.
It has consistently endeavored, aiul with success, to enlarge the ma-
terial jn^osperity of Hawaii on such independent basis. It proposes to
be equally unremitting in its etlbrts hereafter to maintain and develop
the advantages which have accrued to Hawaii, and to draw closer the
ties which imperatively unite it to the great body of xVmerican common-
wealths.

" In this line of action the United States does its simi)le duty both to
Hawaii and itself, and it cannot permit such obvious neglect of national
interest as would be involved by silent acquiescence in any movement
looking to a lessening of those American ties and the substitution of
alien and hostile interests. It firmly believes that the position of the
Hawaiian Islands as the key to the dominion of the American Pacific
demands their neutrality, to which end it will earnestly cooperate with
the native Government. And if, through any cause, the maintenance
of such apositiou of neutrality should be found by Hawaii to I)e imprac-
ticable, this Government would then unhesitatingly meet the altered
situation by seeking an avowedly American solution for the grave
issues presented.

"The communication to the Hawaiian Government of the views herein
expressed is left, both as to manner and extent, to your own discretion.
If the treaty relations with (ireat Britain, ( f which my last instruction
treats, prove to be of such a nature as to require the communication of
a formal protest in the premises to the Hawaiian minister of foreign
affairs, it would probably be wise for you to give him a copy of this dis-
patch as a just and temperate exposition of the intentions of this Gov-
ernment, and a succinct explanation of the reasons which have induced

431

§ 62.] INTERVENTION. [CHAP. III.

such a protest. Even if the formal delivery hereof to the miDister
should not appear advisable, it would be well for you to reflect this
policy iu your conversatious with the public men at Honolulu, who
will, I am sure, find these views in harmony with the true interests of
the Hawaiian Kingdom as they are with those of the United States."

Mr. Blaiue, Sec. of State, to Mr. Comly, Dec. 1, 1881. MSS. Inst., Hawaii;
For. Rel., 1881.

" There is little doubt that were the Hawaiian Islands, by annexation
or distinct protection, a part of the territoiT of the Union, their fertile
resources for the growth of rice and sugar would not onl}* be controlled
by American capital, but so profitable a field of labor wouhl attract in-
telligent workers thither from the United States.

"A purely American form of colonization in such a case would meet
all the phases of the problem. Within our borders could be found the
capital, the intelligence, the activity, and the necessary labor trained iu
the rice swamps and cane fields of the Southern States. And it may
be well to consider how, even in the chosen alternative of maintaining
Hawaiian independence, these prosperous elements could be induced
to go from our shores to the islands, not like the ccolies, practically en-
slaved, not as human machines, but as thinking, intelligent, working
factors in the advancement of the material interests of the islands.

Mr. Blaine, Sec. of State, to Mr. Coinly, Dec. 1, 1881. MSS. Inst., Hawaii.

" Your Xo. 217, of the 8th instant, in which you report the political
tendencies now making themselves manifest in the islands, and the
movement in the direction of onerous taxation of capital and property
to a degree which cannot fail to work injury to the foreign interests and
enterprise which have built up Hawaiian prosperity, has been read with
attention.

"It cannot be doubted that indiscriminate and reckless exercise of the
tax levying power by those por*^ions of the native element who have
little or no taxable interests at stake must react harmfully on the essen-
tial elements of insular prosperity. Independently of the consideration
that a large part of the operating capital and mechanical enterprises of
Hawaii has been contributed by citizens of the United States, this Gov-
ernment feels itself so kindly bound to Hawaii by the traditions of past
intercourse that it would not hesitate to remonstrate with the Hawaiian
Government against the adoption of a short-sighted policy which would
be alike harmful to existing vested interests and repellantof the further
influx of capital from abroad.

"While this Government recognized from the first the constitutional
sovereignty of Hawaii, and still recognizes her right to adjust internal
matters of taxation and revenue on constitutional principles, yet it can-
not permit to pass without very urgent protest in all jiroper quarters a
measure subversive of the material interests of so many of its citizens
who, on the faith of international comity, have given their wealth, labor,
432

CHAP. III.] HAWAII. [§ 62.

and skill to aid in the prosperity of Hawaii. And it makes this ])rotest
the more earnestly, inasmuch as the treaty relations between the two
countries (in which Hawaiian interests were even more subserved than
our own) are such as to give the United States the moral right to expect
that American property in Hawaii will be no more burdened than would
Hawaiian property in the United States."

Mr. Frelinghuysen, Sec. of State, to Mr. Comly, May 31, 1882. MSS. Inst.,
Hawaii ; For. Eel., 1882.

" For several years the Pacific Mail Steamship Company has employed
four of its vessels between San Francisco and Australia, which on both
outward and homeward trips have stojjped at the Sandwich Islands.
Their vessels on the China line have also made such stops, as have those
of the Occidental and Oriental line of British steamers plying between
San Francisco and China. In August last the Hawaiian Government
granted to the Pacific Mail Steamship Company the privilege of carry-
ing Chinese emigrant passengers to the Sandwich Islands from China,
granting at the same time a like })rivilege to the Occidental and Ori-
ental Steamship Company, which is organized under the laws of Great
Britain, and making the privilege exclusive to these two companies.

" In the letter of the minister of foreign affairs, conveying this grant,
the assurance is expressly given to the Pacific Mail Steamship Com-
pany, that while the Government is not in a position to fix any definite
time during which the arrangement shall last, no change will be ujade
without reasonable warning to that company, unless some emergency,
not then foreseen, should arise.

" This privilege is regarded by the company as of great consequence,
as it would probablj' enable them to continue, even through the dull
season, the regular trips of their vessels bearing the United States
mail.

" But soon after this privilege was granted, Mr. C. Spreckles. of San
Francisco, a large owner in the Dceam Steam Navigation Company
recently established between San Francisco and the Hawaiian Islands,
informed the Pacific Mail Steamship Company that unless the <U'mand
previously made through him that the calling of the company's xVns-
tralian steamers at Honolulu be discontinued, he would procure an abro-
gation of its i)rivilege of landing Chinese ])assengers at that port.

"The company, distrusting his ability to accomplish this object, de-
clined the proposition, and received thereafter notice from the foreign
minister, dated October 15 last, that his Government had entered. into
an engagement with the Oceanic Steamship Com])any, conferring on
that company exclusive i)rivilege to transport Chinese immigrants, and
that after January 1, 1S.S4. permits would not be issued by Hawaiian
consular officers in China or the United States for such purpose to ves.
sels of other companies.

S. Mis. 162— VOL. I 23 ^33

§ ()2.1 INTERVENTION. [CHAP. III.

"Mr. Lauterbach further states tbat the exclusive rigbts thus con-
ferred upon the Oceanic line cannot be enjoyed by it directly, inasmuch
as it does not appear that it has ever proposed to perform any service
between the Sandwich Islands and China, and that, in keeping with
this conclusion, Mr. Spreckles, upon the refusal of the Pacific Mail
Steamship Company to divert its Australian vessels from Honolulu,
proffered to the British company, the Occidental and Oriental line, the
exclusive i)rivilege conferred on the Oceanic line by the Hawaiian Gov-
ernment.

"While the offer has not yet been accepted, Mr. Lauterbach expresses
the expectation that it will be, and that the result will be the creation,
by these acts, of a special and exclusive privilege to a British company.

" The i^rovisions of treaty obligations between Hawaii and the United
States are referred to as contravefied by an arrangement of the char-
acter anticipated^ and the Department is asked to remonstrate in the
premises in behalf of the Pacific Mail Steamship Company.

" The practical effect of the proposed exclusive grant or concession
by the Hawaiian Government to the Oceanic Line, of San Francisco, of
which Mr. Spreckles is the controlling manager, if not the sole owner,
and the transfer by that gentleman of the franchise or right thus granted
to the Occidental and Oriental Company, must be to establish and main-
tain a discrimination against the Pacific Mail Steamship Company in
regard to an important and profitable element of their carrying trade;
and this, as it is conceived by this Government, would be in contraven-
tion of the spirit of the first and second articles of the treaty of Decem-
ber, 1849, between the United States and the Hawaiian Islands, and
directly contrary to the letter and spirit of the sixth article of that
treaty, the provisions of which are as follows :

"' Steam vessels of the United States which may be employed by the
Government of the said States in the carrying of their public mails
across the Pacific Ocean, or from one port in that ocean to another,
shall have free access to the ports of the Sandwich Islands, with the
privilege of stopping therein to refit, to refresh, to land passengers and
their baggage, and for the transaction of any business pertaining to the
public mail service of the United States, and shall be subject in such
ports to no duties of tonnage, harbor, light-houses, quarantine, or other
similar duties of whatever nature or under whatever denomination.'

"It is true that the exclusive grant of the Hawaiian Government is
made directly to the Oceanic Company, an American corporation, but
its transfer by Mr. Spreckles to the English company, and the refusal
of the Hawaiian consuls, under instructions from that Government, to
grant the required certificates to a particular class of passengers unless
they take passage on the ships of the line, enjoying the exclusive priv-
ilege, accomplished by indirection precisely what the treaty forbids
being done directly, i. e., the establishing of the discriminating policy
in navigation and commerce against steam vessels of the United States
434

CHAP. III.] HAWAII. [§ 62.

plying between the eastern and western shores of the Pacific Ocean and
carrying? its mails. The right of the Hawaiian Government to admit to
or to exclude from its dominions immigrants of any nationality or race
is not for a moment questioned by this, but that the exclusive privilege
of carrying immigrants who are admitted to Hawaii should be accorded
to any one company owning a particular line of ships, whether Ameri-
can, Hawaiian, or foreign to both countries, is believed to be in itself
unjust, and, as I have already observed, wholly inconsistent with the
due maintenance of the treaty of 1849. The Pacific Mail Steamship
Company have no right to demand an exclusive privilege in such car-
rying trade, but it may, with manifest propriety, under the terms of the
treaty, insist that no discriminating measures against its vessels shall
be maintained or permitted by the Hawaiian Government.

" You will present the subject to that Government in the light of
these suggestions, and it is not doubted but that the enlightened sense
of justice of His Hawaiian Majesty will at once enable him to see the
possible injustice involved in the proposed arrangement, and that he
will inaugurate the necessary measures to avert its being carried out."

Mr. Frelinghuysen, Sec. of State, to Mr. Daggett, Nov. 15, 1883. MSS. Inst.,
Hawaii ; For. Rel., 1883.

" I have had the honor of receiving your note of the 18th of October
last, inclosing a signed protest on the part of the Hawaiian Government
against the annexation of archipelagoes and islands of Polynesia by
foreign powers, and especially by Great Britain, in behalf of which pro-
test the sympathies of this Government are asked.

" It is unnecessary to assure you that the sympathies of this Govern-
ment and the people of this country are always in favor of good self-
government by the independent communities of the world.

"While we couldnot, therefore, view with complacency any movement
tending to the extinction of the national life of the intimately connected
commonwealths of the Northern Pacific, the attitude of this Govern-
ment towards the distant outlying groups of Polynesia is necessarily
different.

" It is understood that the agitation to which the protest refers as
now existing in Australia contemplates the immediate protection and
eventual annexation of the New Hebrides, the Solomon Islands, and the
immediately adjacent groups of the Australian colonial system. These
islands are geographical^ allied to Australasia rather than to Polynesia.
At no time have they so asserted and maintained a separate national
life as to entitle them to entrance, by treaty stipulations and established
forms of competent self-government, into the family of nations, as
Hawaii and Samoa have done. Their material development has been
largely due to their intercourse with the great Australian system, near
which they lie, and this Government would not feel called upon to view
with concern any further strengthening of such intercourse when neither

435

§ 63.] INTERVENTION. [CHAP. Ill

the sympathies of our people are touched nor their direct political or
commercial relations with those scattered communities threatened by
the proposed change.

" The President, before whom the protest has been brought, moved by
these considerations, does not regard the matter as one calling for the
interposition of the United States, either to oppose or support the sug-
gested measure."

Mr. Frelinghuyeen, Sec. of State, to Mr. Carter, Dec. 6, 1883. MSS. Notes,
Hawaii.

The followinj; Congressioual documents may be referred to in this connection :

King Kalakaua's visit to United States, expenses incurred by United States,
statement of. Dec. 9, 1875. Senate Ex. Doc. '2, 44th Cong., Ist sess.

Reciprocity treaty. President's message. Dec. 6, IBTfj. House Ex. Doc. 1, 44th
Cong., Ist sess.

Views and objections to the bill to carry the treaty into eifect. Favorable and
adverse reports, Feb. 24, 1876. House Eep. 116, parts 1 and 2, 44th Cong.,
1st sess.

Proclamation putting the treaty into effect. President's message. Dec. 9, 1875.
House Ex. Doc. 1, 44th Cong., 2d sess.

Termination of treaty. Report recommending modifications in, instead of termi-
nation of, existing treaty. Jan. 16, 18S3. House Eep. 1860, 47th Cong., 2nd
sess. Jan. 29, 1883. Part 2, minority report.

Termination of treaty. Favorable report and minority report. Feb. 27, 1883.
Senate Rep. 1013, 47th Cong., 2d sess. Adverse report. Jan. 24, 1884.
Senate Rep. 76, 48th Cong. 1st sess. Jan. 24, 1884. Part 2, minority re-
port.

See also speeches of Mr. Mitchell and of Mr. Morrill on the Hawaiian reciprocity
treaty of 1875, Pamph., Dept. of State, and remarks of Messrs. Allen and
Boutwell on the bill for the termination of that treaty, Pamph., Dept. of
. State ; and pamphlet by Mr. Spaldiug ou simile topic, id.

(7) Samoa, Carolike, and other Pacific Islands.

§63

In March, 1872, certain commercial arrangements were made b^
Manga, chief of Tutuila, and Commander Meade, of the U. S. S. Nar-
ragansett, for the use of the port of Pango-Pango. According to a sum-
mary in the Nineteenth Century for February, 1886, "it was arranged
that Pango-Pango should be given up to the American Government, on
condition that a friendly alliance existed between that island and the
United States. Pango-Pango Harbor has thus passed forever from the
hands of the British."

For the agreement of Feb. 17, 1872, between Commander Meade, of the United
States Navy, and the chief of the Island of Tutuila, one of the Samoan
group, conferring on the United States the exclusive privilege of establish-
ing a naval station in such island, see MSS. Report Book.
As to claims for spoliations by "wrongful acts of the commercial agent of the
United States exercising authority," at Apia in 1855, see House Rep.
No. 212, 35th Cong., 2d sess. ; House Rep. No. 569, 36th Cong., 1st sess. ; Sen-
ate Rep. Com. No. 148, 36th Cong., 1st sess.

436

CHAP. III.] SAMOA AND OTHER PACIFIC ISLANDS. [§ 63.

''The Government of the Samoan Islands has sent an envoy, in the
person of its secretary of state, to invite the Government of the United
States to recognize and protect their independence, to establish com-
mercial relations with their people, and to assist them in their steps
toward regulated and responsible government. The inhabitants of
these islands, having made considerable progress in Christian civiliza-
tion and the development of trade, are doubtful of their ability to main-
tain peace and independence without the aid of some stronger power.
The subject is deemed worthy of respectful attention, and the claims
upon our assistance by this distant community will be carefully con-
sidered."

President Hayes, First Annual Message, 1877.

"The treaty with the Samoan Islands, having been duly ratified and
accepted on the part of both Governmeuts, is now in operation, and a
survey and soundings of the harbor of Pango-Pango have been made by
a naval vessel of the United States, with a view of its occupation as a
naval station, if found desirable to the sft-vice."

President Hayes, Second Annual Message, 1878.

"A naval vessel has been sent to the Samoan Islands, to make sur-
veys and take possession of the privileges ceded to the United States
by Samoa in the harbor of Pango-Paugo. A coaling-station is to be estab-
lished there, which will be convenient and useful to United States ves-
sels."

President Hayes, Third Annual Message, 1879.

" In Samoa, the Government of King Malietoa, under the support and
recognition of the consular representatives of the United States, Great
Britain, and Germany, seems to have given peace and tranquillity to
the islands. While it does not appear desirable to adopt as a whole
the scheme of tripartite local government, which has been proposed, the
common interests of the three great treaty powers require harmony in
their relations to the native frame of government, and this may be best
secured by a simple diplomatic agreement between thoin. It would be
weir if the consular jurisdiction of our representative at Ai)ia were
increased in extent and importance so as to guard American interests
in the surrounding and outlying islands of Oceanica."

President Hayes, Fourth Annual Message, 1880.

" The United States, the same a^ Germany and Great Britain, does
not desire the triumph of any particular party, but the restoration of
peace and order; and this Government further desires that peace and
order be restored by the establishment of a firm, stable, independent
native Government that will command the respect and support of
natives and foreigners. There is nothing in any of the instructions of
the Department to our consul at Apia to warrant any one party on the

437

§ 63.] INTERVENTION. [CHAP. III.

islands more than another to believe that this Government was favor-
able to their cause ; and the Department would regret to have such an
impression prevail."

Mr. Evarts, Sec. of State, to Mr. von Thielmaim, June 15, 1877. MSS. Notes,
Germ.

"A naval station having in 1872 been established in the harbor of the
Bay of Pango-Pango, under an agreement with the great chief of the
bay, and the attention of the Government drawn by highly respectable
commercial persons to the importance of the growing trade and com-
merce of the United States with the islands in the South Pacific Ocean,
and to the opportunities of increasing our commercial relations iu that
quarter of the globe, it was determined, as the Samoan or Navigator
Islands lay in the track of such trade, and were reputed to abound in
good harbors and to be very fertile and theirinhabitants friendly towards
this Government, to send a special agent thither, for the purpose of
making a thorough examination and report in regard to all the points
on which it was desirable th^t this Government should be informed."

Mr. Evarts, Sec. of State, to Mr. Welsh, May 15, lS7y. MSS. Inst., Gr. Brit.

As to special power conferred by the United States upon A. B. Steinberger, special
agent to the Samoan Islands, see reports of Mr. Fish, Sec. of State, to Presi-
dent Grant, May 1, 1876 (sent by him to the House of Representatives).
MSS. Report Book.
The following Congressional documents may be consulted iu this relation :

Report as to the character of the island, the inhabitants, nature and quantity
of the agricultural and other productions, the character of the harbors, uud
the form of Government, by A. B. Steinberger. special agent of the United
States. President's message. Apr. 21, 1874. Senate Ex. Doc. 45, 43d
Cong., 1st sess. — Further report. President's message. May 1,1876. House
Ex. Doc. 161, 44th Cong., first sess.

Further correspondence. President's message. Feb. 24, 1877. House Ex. Doe.
44, 44th Cong., 2d sess.

Political and commercial report of Gustavns Goward. President's message.
Mar. 20, 1879. (Senate Ex. Doc. 2, 46th Cong., 1st sess.)

Steinberger's bargain of Sept. 10, 1874, with the hou.se of Godeifroy & Son, of
Hamburg, by which his influence in the Samoan Islands is made over to
that house, is given in the Nineteenth Century for Feb., 1886, pp. 288,
289. The same periodical (p. 305) gives the German negotiations with Sa-
moa.

"The Ealik group of islands in the Marshall Archipelago" ''is un-
derstood to be under no foreign flag or protectorate, and to feel no
foreign influence other than that of the resident consular officer, a Ger-
man, and of the distant consular representatives at Samoa and Fiji,
within the jurisdiction of which the Ealik Islands seem to fall." Hence
this Government, in desiring to aid the native Government of those
islands in the establishment, in connection with the missionaiies, of
temperance restrictions, can only do so through the agency of the
German Government.

Mr. Evarts, Sec. of State, to Mr. White, Nov. 13, 1880. MSS. Inst., Germ.
438

CHAP. III.] SAMOA AND OTHER PACIFIC ISLANDS. [§ 63.

" For your information I inclose a copy of an instruction recently sent
to our legation at Madrid in regard to the mode of procedure by which
the crimes alleged to have been committed by an American citizen oa
the Island of Guap, or Yap, might be reached and punished. This in-
struction (No. 381, of August 3, 1885, to Mr. Foster) abundantly shows
that we not only have not the slightest purpose of asserting claim to the
Caroline Islands in virtue of the large American interests established
there, but that we seek to respect whatever sovereign jurisdiction may be
established as existing there, without even indicating an opinion as to
questions of legitimate controversy by either Spain or Germany."

Mr. Bayard, Sec. of State, to Mr. Pendleton, Sept. 7, 1885. MSS. Inst., Germ.

The instruction to Mr. Foster, above referred to, had to do with the punishment
of an alleged American trader for crimes against natives in his employ on
the Island of Guap. After alluding to the difficulties in the way of reach-
ing him, it was suggested that if, as was reported, orders had been issued
at Madrid to establish the jurisdiction of Spain over the Caroline Islands,
of which Guap was one, the Spanish authorities, if it be determined they
have jurisdiction, could cause him to be arrested and brought to the nearest
court competent to try the case.

" Your communication of the 17th instant, referring to this Depart-
ment a letter addressed to you by Mr. A. Crawford, of San Francisco,
in relation to the alleged action of Germany in claiming the sovereignty
of the islands of the Samoan, Gilbert, and Marshall groups, has been re-
ceived. In reply, I have the honor to inform you that we have no treaty
relations with the Gilbert and Marshall Islands, or any knowledge of
the intention of Germany with respect thereto, except the reports which
reach us, with more or less authenticity, that Great Britain and Ger-
many have agreed upon lines of division in the Pacific Ocean, by which
determinate areas will be open to the exclusive settlement and control
of the respective Governments. The case is difterent in Samoa, with
which country we have established treaty relations. The German Gov-
ernment has repeatedly disclaimed any intention to interfere with these
treaty relations in any way. The recently reported occurrences in
Samoa are not as yet fully understood, and further knowledge is awaited
before forming a definite judgment. As to the outlying unanached
groups of islands, dependent upon no recognized sovereignty, and set-
tled sporadically by representatives of many nationalities whose tenure
depends on i)rior occupancy of inhabited territory or on a good under-
standing with the natives of the inhabited islands, we conceive that the
rights of American settlers therein should rest on the same footing as
others. We claim no exclusive jurisdiction in their behalf, and are not
called upon to admit on the part of any other nationality rights which
might operate to oust our citizens from rights which they may be found
to share equally with others. In cases of actual annexation of such
islands by any foreign power, we should expect that our citizens peace-

439

§ 63.] INTERVENTION. [CHAP. III.

ably established there would be treated on a basis of equality with the
citizens or subjects of such power. These views have been communi-
cated to our ministers at London and Berlin for their guidance.

Mr. Bayard, Sec. of State, to Mr, Morrow, Feb. 26, 1886. MSS. Dom. Let.

" My recent instructions to you show the deep concern which this
Government feels in the reported operations of Germany in the Samoan
Islands, with which we have treaty relations. We have no treaty rela-
tions with the Marshall or Gilbert groups. They are understood to be-
long to the large category of hitherto unclaimed islands which have been
under no asserted administration, and where the traders of various na-
tionalities have obtained lodgment through good relations with the
natives. Of the Gilbert Islands we have no precise information. Mr.
von Alveusleben recently stated in conversation that the German claim
to the Caroline Islands having been decided adversely, Germany would,
instead, take possession of the Marshall group. It is understood, but
informally so, that an arrangement exists between Great Britain and
Germany whereby the two powers will confine their respective insular
annexations in the Pacific Ocean within defined areas or zones, and that
under this arrangement the Marshall Islands fall within the zone where
Germany can operate without coming into collision with Great Britain.

" It is not easy to see how either Great Britain or Germany can assert
the right to control and to divide between them insular i)ossessions
which have hitherto been free to the trade of all flags, and which owe
the civilizing rudiments of social organization they possess to the set-
tlement of pioneers of other nationalities than British or German. If
colonial acquisition were an announced policy of the United States, it
is clear that this country would have an equal right with Great Britain
or Germany to assert a claim of possession in respect of islands settled
by American citizens, either alone or on a footing of equality with Brit-
ish and German settlers.

"There are islands in the Pacific Ocean known to be wholly in the
undisturbed possession of American citizens as peaceable settlers, and
there are many others where American citizens have established them-
selves in common with other foreigners. We, of course, claim no ex-
clusive jurisdictional right by reason of such occupancy, and are not
called upon to admit it iu the case of like occupancy by others.

"What we think we have a right to expect, and what we are confi-
dent will be cheerfully extended as a recognized right, is that interests
found to have been created in favor of peaceful American settlers in
those distant regions shall not be disturbed by the assertion of exclusive
claims of territorial jurisdiction on the part of any power which has
never put forth any show of administration therein ; that their trade
and intercourse shall not iu any way be hampered or taxed otherwise
than as are the trade and intercourse of the citizens or subjects of the
440

CHAP. III.] SAMOA AND OTHER PACIFIC ISLANDS. [§ 63i

power asserting such exclusive jurisdiction, and, in short, that the
equality of their tenancy jointly with others, or the validity of their
tenancy where they may be the sole occupants, shall' be admitted ac-
cording to the established principles of equity and justice."

Mr. Bayard, Sec. of State, to Mr. Pendleton, Feb. 27, 1886. MSS. In.st., Germ.

" Nowhere were justice and the rights of the native inliabitants more
cynically regarded than in Samoa by the great German t;ading firms.
The people of that group belong to the finest of the Polynesian races.
They are all nominally Christians, and have never deserved the title of
< savage' except in its acceptation of 'not civilized.' Unliapi)ily tribal
animosities and the machinations of interested and unscrupulous white
men led to a series of wars. The combatanirs were anxious to procure
fire-arms, and the traders declined to sell them except for land. The
result was that between 1869 and 1872 not less than 100,000 acres passed
into German ownership at a virtual cost of a few pence per acre. For
much, not even this consideration was given. The ignorant natives
were deluded into signing documents which they could not, in the least,
understand, and which were held to give the white occupiers a secure
title. At present the German land claims in Samoa comprise 232,000
acres. British subjects claim not less than 357,000. There is, however,
this important difference between the positions of the German and the
British claimants ; the former have so far made their claims effective
that they occupy and cultivate just as much of the soil as they can
work, whilst the latter's exist only on paper and are not insisted on by
our Government. * * * The preservation of the native races, whose
diminution is hastened by the labor trade, is of vital importance to the
white settlers in Oceania. England has attempted to i)rotect the isl-
anders, but not verj^ successfully. Certain alterations in the law have
been recommended, but it is doubtful if these, should they be made,
will effect much. We concur with Baron Hlibner in thinking that the
only remedy is to be looked for in some international agreement, ' the
terms of which should apply to all mankind living or moving in the
archipelagoes or regions of the Western Pacific' The i)recedent of
Apia in Samoa is encouraging. That town and the immediate neigh-
borhood are governed by a municipal board under the joint supervision
of the consuls of Great Britain, Germany, and the United States. It
still forms part of the dominions of the King of Samoa, but the admin-
istration is in ' the hands of the municipality and the consuls.' "

Edinburgh Eev., (July, 1866,) 87,92.

As to title to Christmas Island, situated in the Pacific Ocean, see Mr. Evarts,
Sec. of State, to Sir E. Thornton, Apr. 1, 1879. MSS. Notes, Gr. Brit.

As to Midway Islands, see Mr. Welles's report, July 18, 1808; Senate Ex.
Doc. No. 79, 40th Cong., 2d sess. ; Senate Rep. Com. No. 194, 40th Cong.,
3d sess.

As to American Missions in the Caroline Islands, soo Mr. Bayard, Sec. of .State,
to Mr. Pendleton, Sept. 7, 1885. MSS. Inst. Germ. Supra, $ 54.

As to sovereignty of such islands, see instructions of same date, of same to
same.

As to seizure by British Goverumcnt of Tigre Island in the Gulf of Fonseca, Cen-
tral America, see message of President Fillmore, of July 22, 1850, with ac-
companying papers, House Ex. Doc. No. 75, 31st Cong., Ist sess.

441

§ 64] INTERVENTION. [CHAP. III.

(8) COREA.

§ 64.

The independence of Corea of China is to be regarded by the United
States as now established.

Mr. Frelinghuysen, Sec. of State, to Mr. Young, Aug. 4, 1882. MSS. lust.,
China. See also Mr. Davis lo Mr. Young, Jan. 22, 1883. Ibid.

"The existence of international relations between the two countries
(the United States and Corea), as equal contracting parties, is to be
viewed simply as an accepted fact."

Mr. Frelinghuysen, Sec. of State, to Mr. Young, June 9, 1883. Ihid.

" The United States, as you are aware, were the first western power
to conclude a treaty with Corea. By reason of this fact, and perhaps
to give greater emphasis to the friendship so happily initiated, the
Corean Government sought the introduction into the treaty of the pro-
vision on which this ap])licatiou rests. It was admitted by us as evi-
dence of our impartial desire to see the independence and peace of Corea
well established. The second clause of Article I of the treaty of May
22, 1882, between the United States and Corea, reads thus :

"•If other powers deal unjustly or oppressively with either Govern-
ment, the other will exert their good offices, on being informed of the
case, to bring about an amicable arrangement, thus showing their
friendly feelings.'

" Except that the provision is made reciprocal, it follows the phrase-
ology of Article I of our treaty of 1858 with China.

" This Government could not, of course, construe the engagement
thus entered into as empowering or requiring us to decide and main-
tain that the acts in respect to which good offices are desired are, in
fact, unjust and ojpjjressive. Such a construction would naturally render
nugatory any attempt to derive good results from the engagement."

Mr. Bayard, Sec. of State, to Mr. Phelps, Aug. 19, 1885. MSS. Inst., Gr. Brit.
See a series of interesting dispatches from Mr. Foulk, charge d'affaires a(Z iri'
terim, at Corea, in For. Rel., 1885.

(9) Falkland Islands.
§65.

The Government of the United States will protect citizens of the
United States having fishing rights on the Falkland Islands from the
interference of parties claiming under Buenos Ayres.

Mr. Livingston, Sec. of State, to Mr. Baylies, Jan. 26, 1832. MSS. Inst., Am.
States. Same to same, Apr. 3, 1«32. Ibid.

CHAP. III.] FALKLAND ISLANDS. [§ 65.

Vessels of the United States visiting the Falkland Islands have in
them "customary privileges," which ought not to be abridged by arbi-
trary decrees of the British Government.

Mr. Marcy, Sec. of State, to Mr. Buchanan, Sept. 27, 1854. MSS. Inst., Gr. Brit.
The papers relative to the seizure by the British authorities at the Falkland

Islands, in 1854, of the ship Hudson and Bchooner Washington, are given

in the report of Mr. Fish, Sec. of State, Jan. 16, 1872, Senate Ex. Doc. No.

19, 42d Cong., 2d sess.
The correspondence with Buenos Ayres with respect to the Falkland Islands will

be found in the Br. and For. St. Pap. for 18:52-':}, vol. 20, 312,

"The Argentine Government has revived the long dormant question
of the Falkland Islands, by claiming from the United States indemnity for
their loss, attributed to the action of the commander of the sloop-of-war
Lexington in breaking up a piratical colony on those islands in 1831,
and their subsequent occupation by Great Britain. In view of the
ample justification for the act of the Lexington, and the derelict condi-
tion of the islands before and after their alleged occupation by Argen-
tine colonists, this Government considers the claim as wholly ground-
less."

President Cleveland, First Annual Message, 1885.

"The right of the Argentine Government to jurisdiction over it (the
territory of the Falkland Islands), being contested by another power
(Great Britain), antl upon grounds of claim long antecedent to the acts
of Captain Duncan which General Alvear details, it is conceived that
the United States ought not, until the controversy upon the subject
between those two Governments shall be settled, to give a final answer
to General Alvears note, involving, as that answer must, under exist-
ing circumstances, :i departure from that which has hitherto been con-
sidered as the cardinal policy of this Government."

Mr, Webster, Sec, of State, to General Alvear, Dec. 4,1841 ; quoted by Mr.
Bayard, Sec. of Stnte, to Mr. Quesada, Mar. 18, 1886. MSS. Notes, Arg. Eep.

"This Government is not a party to the controversy between the
Argentine Bepublic and Groat Britain; and it is for this reason that it
has delayed, with the tacit <;onsent of the former, a finai answer to its
demands. For it is conceived that the question of the liability of the
United States to the Argentine Republic for the acts of Cai)tain Dun-
can, in 1831, is so closely related to the question of sovereignty over
the Falkland Islands, that the decision of the former question would
inevitably be interpreted as an expression of opinion on the merits of
the latter. Such an expression it is the desire of this Government to
avoid, so far as an adequate reference to the points of argument pre-
sented in the notes recently addressed to this Department on the behalf
of your Government will permit. * * *

"As the resumption of actual occupation of the Falkland Islands by
Great Britain in 1833 took place under a claim of title which had been

443

§ G6.] INTERVENTION. [CHAP. III.

previously asserted and maintained by that Government, it is not seen
that the Monroe doctrine, which has been invoked on the part of the
Argentiue Kepublic, has any application to the case. By tbe terms in
which that principle of international conduct was announced, it was
expressly excluded from retroactive operation.

"If the circumstances had been different, and the acts of the British
Government had been in violation of that doctrine, this Government
could never regard its failure to assert it as creating any liability to
another power for injuries it may have sustained in consequence of the
omission. * * *

"But it is believed that, even if it could be shown that the Argentine
Eepublic possesses the rightful title to the sovereignty of the Falkland
Islands, there would not be wanting ample grounds upon which the
conduct of Captain Duncan in 1831 could be defended. * * *

"On the whole, it is not seen that the United States committed any
invasion of the just rights of the Government of Buenos Ayres in put-
ting an end in 1831 to Vernet's lawless aggressions upon the persons
and property of our citizens."

Mr. Bayard, Sec. of State, to Mr. Quesada, Mar. 18, 1886. MSS. Notes, Arg.
Eep.

The President, in a message to Congress, and in the correspondence
carried on with the Government of Buenos Ayres, having denied the
jurisdiction of that country over the Falkland Islands, the courts must
take the facts to be so.

Williams t\ Suffolk iDsurance Company, 13 Pet., 415.

Where an officer of the Navy, without instructions from his Govern-
ment, seized property in the Falkland Islands, claimed by citizens of
the United States, which, it was alleged, had been piratically taken by
a person pretending to be governor of the islands, it was held, that such
officer had no right, without express direction from his Government,
to enter the territoriality of a country at peace with the United States
and seize property found there claimed by citizens of the United States.
Application for redress should have been made to the judicial tribu-
nals of the country.

Davison v. Seal-skins, 2 Paiue, 324.

(10) Liberia.

§ 66.

''The United States are not averse to having the great powers know
that they publicly recognize the peculiar relations between them and
Liberia, and that they are prepared to take every proper step to main-
tain them. To this end, it is not inexpedient that you, and Mr. Lowell
also on his return to his post from his present leave, should evince a
lively interest in the movements of both Great Britain and France in
444

CH4P. III.J LIBERIA. [§ 66.

the neighborhood of Liberia, without, however, showing any undue
anxiety or offensive curiosity in the matter."

Mr. Evarts, Sec. of 8tate, to Mr. Hoppiu, Apr. 21, 1880. MSS. Inst., Gr. Brit.

Aa to suggested French "protectorate of Liberia," see Mr. Evarts, Sec. of State,

to Mr. Noyes, Apr. 21, 1880, and preceding instructions. MSS. Inst., France.

" On the 14th instant, in a conference with me, the minister of Ger-
many at this capital stated that in October last the German steamer
Carlos, Capt. P. C. Nickelsen, with a cargo from Hamburg for Lagos,
via Sasstown, fell into distress on the coast of Liberia ; that the natives
of the coast of the " Kronbah " tribe took advantage of the helpless
condition of the vessel to plunder her of the greater part of her cargo,
beside^robbing and maltreating her crew, who sought to escape in the
vessel's life-boats; and that the Liberian Government showed the sin-
cerest wish to punish such i^roceediugs, but declared itself unable to
exert authority to that end over the lawless Kronbahs. Under these
circumstances Mr. Yon Schlozer said that the German Government had
ordered the Victoria of the imperial navy to proceed to Liberia and there
assist the Government of that Republic in the pursuit and punishment
of the offenders, as a step in the general interest of all commercial na-
tions. He at the same time asked that you might be informed of the
occurrence, and of the purpose of his Government in the premises.

" It is not understood that the coast-dwellers who committed this
injury on a peaceable foreign vessel and her crew are unsubdued rebels
to the Liberian Government, or pirates in the common international
acceptation of the term ; but it is inferred that they are simply lawless
wreckers, outside of the prompt and efficacious control of the central
Government. In this view, and to the end of securing foreign life and
property from inhos])ltable attacks on the coast in question, it is pre-
sumed that the Liberian Government would gladly avail itself of any
proper and friendly aid from without in making its own laws and power
felt within its own jurisdiction.

" Should the Liberian minister of state consult with you on this point
in view of the attitude of advisory friendliness which this Government
has constantly maintained toward that of Liberia, you are at liberty to
express to him the view of the matter entertained here, adding that had
the case affected an American vessel and crew, this Government would
not have failed to consider in a proper spirit any request made to it by
that of Liberia for aid such as Germany is now prepared to render.

" It is not, however, needful for you to make any such statement in
advance of the subject being brought to your attention."

Mr. Evarts, Sec. of State, to Mr. Smyth, Feb. 28, 1881. MSS. Inst., Liberia;
For. Rel.,188L

The treaty of the United States with Liberia does not authorize or
require -the United States to interfere with their naval forces to preserve
order or to compel obedience to law in Liberia.

Mr. Evarts, Sec. of State, to Mr. Smyth, July 12, 1879. MSS. Inst., Liberia.

445

§67.] INTERVENTION. [CHAP; ill.

Nor should the United States minister at Liberia interfere with the
Government thereof by obtruding political advice.

Same to same, Jan. 7, 1880. But see Mr. Blaine, Sec. of State, to Mr. Smyth,
June 21, \HS\,ibid.

Liberia, although not a colony of the United States, began its inde-
pendent career as an offt^hoot of this country, which bears to it a quasi
parental relationship which authorizes the United States to interpose
its good offices in any contest between Liberia and a foreign state, and
a refusal to give the United States an opportunity to be heard for this
purpose would make " an unfavorable impression in the minds of the
Government and the people of the United States."

Mr. Frelinghuysen, Sec. of State, to Mr. Roustan, Aug. 22, 1884. MSS, Notes,

France.
Report adverse to providing means to make survey for a railroad in Liberia was

made Mar. .5, 1878. House Rep. 349, 45th Cong., 2d sess.
Memorial asking that a survey be made for a railroad in Liberia. Feb. 12,

1879. Senate Mis. Doc. 67, 45th Cong., :M sess.
As to boundaries of Liberia, see Mr. Davis, Asst. Sec. of State, to Mr. Lowell,

Sept. \h, 1882; Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, Apr. 9,

1883, Aug. 19, 1884; MSS. Inst., Gr. Brit. ; Mr. Frelinghuysen, Sec. of State,

to Mr. Smyth, Dec. 21, 1882, Apr. 8, 1883 and June 19, 1883. MSS. Inst.,

Liberia.
Mr. Gurley's report of Feb. 15, 1850, on the then condition of Liberia is given

in Senate Ex. Doc. No. 75, 31st Cong., Ist sess.

(11) China.
§ 67.

For consular jurisdiction in China, see infra, $ 125 ; as to treaties with China,
infra, ^144.

President Van Buren's message of Feb. 25, 1840, introducing an elaborate report
of the Secretary of State on the state of American trade with China, is given
in House Ex. Doc. No. 119, 20th Cong., 1st sess. See also House Doc, No.
170, same Congress.

President Tyler's message of Dec. 30, 1842, in relation to China and the Sand-
wich Islands, was written by Mr. Webster, 2 Curtis' Life of "Webster,
176.

"You will state, in the fullest manner, the acknowledgment of the
Government that the commercial regulations of the Empire, having
become fairly and fully known, ought to be respected by all ships and
all persons visiting its ports ; and if citizens of the United States,
under these circumstances, are found violating well known laws of trade,
their Government will not interfere to protect them from the conse-
quences of their own illegal conduct. You will, at the same time,
assert and maintain, on all occasions, the equality and independence of
your own country. The Chinese are apt to speak of persons coming
into the Empire from other nations as tribute bearers to the Emperor.
446

CHAP. III.] CHINA. [§ 67.

This idea has been fostered perhaps by the costly parade embassies of
Eugland. All ideas of this kiud, respecting your mission, must, should
they arise, be immediately met by a declaration, not made ostenta-
tiously, or in a manner reproachful towards others, that you are no
tribute-bearer; that your Government pays tribute to none and ex-
pects tribute from none; and that even as to presents, your Government
neither makes nor accepts presents. # * #

"You will say that the Government of the United States is always
controlled by a sense of religion and of honor ; that nations difler in
their religious opinions and observances ; that you cannot do anything
which the religion of 3 our own country, or the sentiments of honor,
forbid ; that you have the most profound respect for His Majesty the
Emperor; that you are ready to make to him all manifestations of hom-
age which are consistent with your own sense ; and that you are sure
His Majesty is too just to desire you to violate your own duty; that
you should deem yourself quite unworthy to appear before His Majesty
as peace-bearer from a great and powerful nation, if you should do
anything against religion or against honor, as understood by the Gov-
ernment and people in the country you came from. Taking care thus
in no way to allow the Government or people of China to consider you
as tribute-bearer from your Government, or as acknowledging its infe-
riority, in any respect, to that of Chiua, or any other nation, you will
bear in mind, at the same time, what is due to your own personal dig-
nity and the character which you bear. You will represent to the
Chinese authorities, nevertheless, that you are directed to i>ay to His
Majesty the Emperor the same marks of respect and homage as are
paid by your Government to His Majesty the Emperor of Russia, or
any other of the great powers of the world."

Mr. Webster, Sec. of State, to Mr. Gushing, May 8, 1843, MSS. Inst., China.

The participation, by a consul of the United States in China, in the
opium trade, after notice forbidding such participation, is ground for his
dismissal.

Mr. Legar^, Sec. of State, to Mr. Cashing, June 12, 1843. MSS. Inst., China.

" I entered China with the formed general conviction that the United
States ought not to concede to any foreign state, under any circum-
stances, jurisdiction over the life and liberty of a citizen of the United
States, unless that foreign state be of our own family of nations — in a
\vord, a Christian state. In China I found that Great Britain had stipu-
lated for the absolute exemption of her subjects from the jurisdiction of
the Empire; while the Portuguese attain the same object through their
own local jurisdiction at Macao. This exemption in behalf of citizens
of the United States is agreed to in terms by the letter of the treaty of
Wang-Hiya. By that treaty the laws of the Union follow its citizens,

447

§ 67.] INTERVENTION. [CHAP. III.

and its banner protects them, even within the domain of the Chinese
Empire."

Mr. Cuebiuj^ to Mr. Calhoun, Sept. 29, 1844. MSS. Despatches China. Cited in

Lawrence's Wheaton (ed. 18015), '22H.
As to consular jurisdiction in Cliiua, see infra, § 125.

In cases of aggravated crimes by citizens of the United States in
Chiua after the treaty giving- jurisdiction of such cases to United States
consuls, but before Cougressional legislation, the minister of the United
States at China was iustructed to send the criminals inculpated to the
United States for trial.

Mr. Buchanan, Sec. of State, to Mr. A. H. Everett, Apr. 15, 1845. MSS. Inst.,
Chiua.

When an attack is threatened on a consulate or diplomatic agency in
China, it is the duty of the officers in charge to give notice to the local
authorities, and, in failure of adequate aid, such officers may take their
defense in their own hands. The Chinese Government will afterwards
be held liable for any losses occurring from its neglect to give efficient aid.
Mr. Buchanan, Sec. of State, to Mr. A. H. Everett, Jan. 28, 1847. MSS. Inst.,

China.
The message of President Pierce of July 19, 1854, containing the correspondence
between the Department of State and the late commissioner to China, Mr.
Humphrey Marshall, is contained in House Ex. Doc. No. 123, 33d Cong.,
Ist sess.

"It is difficult to lay down any precise rule for regulating the trade
of our citizens with the hostile sections of the people of China. While
they should not traffic in the plunder that one party may have seized
from the other, yet they ought not to be restricted in a free trade at
any of the ports opened to them by our treaty under the pretext that
such a trade is more favorable to one party than to the other. It
would be well if our citizens confined themselves to their customary
mode of dealing in China. The purchase of property known to be the
spoils of the contending parties would undoubtedly be regarded as a
species of participation in the civil conflict. It ought to be discounte-
nanced and restrained."

Mr. Marcy, Sec. of State, to Mr. Parker, Oct. 5, 1855. MSS. Inst., China.

The Chinese Government having obstinately and persistently refused
to pay a claim for personal damages admitted to be due a citizen of the
United States, instructions were sent in 1855 to the United States min-
ister at China, at his discretion, " to resort to the measure of withhold-,
ing duties to the amount.thereof."

Mr. Marcy, Sec. of State, to Mr. Parker, Oct. 5, 1855. MSS. Inst., China.

The display of the American flag in the attack by the British on Can-
ton in 1856 was, if the act of an American functionary, an act calling
for his removal.

Mr. Marcy, Sec. of State, to Mr. Parker, Feb. 2, 1857. MSS. Inst., China.
448

CHAP. III.] CHINA. [§ 67.

"The efifort of the Chinese Government to prevent the importation
and consumption of opium was a praiseworthy measure, rendered neces-
sary by the prevalent use and the terrible efiects of that deleterious
drug. All accounts agree as to the magnitude of the evil and the wide-
spread desolation caused by it. Upon proper occasions you will make
known to the Chinese officers with whom you may have communication
that the Government of the United States does not seek for their citi-
zens the legal establishment of the oi)ium trade, nor will ir uphold them
in any attempt to violate the laws of China by the introduction of that
article into the country."

Mr. Cass, Sec. of State, to Mr. Eeed, May 30, 1857. MSS. Inst., China.

The proposition of Mr. Reed, United States minister in 1858 to China,
to "unite with the English and French in their hostile movements" to
compel the Chinese Government to fulfill its treaty obligations, was
held to be inadmissible without the consent of Congress.

Mr. Cass, Sec. of State, to Mr. Reed, 1858 (no other date). MSS. Inst., China.

"You were informed by mj- last annual message that our minister
had been instructed to occupy a neutral i)osition in the hostilities con-
ducted by Great Britain and France against Canton. lie was, however,
at the same time, directed to co-operate cordially with the British and
French ministers in all peaceful measures to secure by treaty tho.se just
concessions to foreign commerce which the nations of the world had a
right to demand. It was impossible for me to proceed further than this,
on my own authority, without usurpnig the war-makiiij,' power, which,
under the Constitution, belongs exclusively to Congress.

" Besides, after a careful examination of the nature and extent of our
grievances, I did not believe they were of such a pressing and aggra-
vated character as would have justified Congress in declaring war
against the Chinese Em])ire without lirst makinganother earnest attempt
to adjust them by peaceful negotiation. 1 was the more inclined to this
opinion, because of the severe chastisement which had then but recently
been inflicted upon the Chinese by our squadron in the capture and
destruction of the Barrier iforts to avenge an alleged insult to our Hag.

"The event has proved the wisdom of our neutrality. Our minister
has executed his instructions with eminent skill and ability. In con-
junction with the Eussian plenijmtentiary, he has peacefully, but effect-
ually, co-operated with the English an<l French i)lenipotentiaries ; and
each of the four powers has concluded a separate treaty wiih China, of
a highly satisfactory character. The treaty concluded by our ])lenipo-
tentiary will immediately be submitted to the ^Senate.

" I am happy to announce that, through the energetic yet concilia-
tory efforts of our consul-general in Japan, a new treaty has been con-
cluded with that Empire, which may be expected materially to augment
our trade and intercourse in that quarter, and reinove from our coun-
S. Mis. 162— VOL. T 29 449

§ 67.] INTERVENTION. [CHAP. III.

trymen the disabilities which have heretofore been imposed upon the
exercise of their religion. The treaty shall be submitted to the Senate
for approval without delay."

President Bncliauau, Second Annual Message, 1858. See for treaty, itijra, § 144.
President Buchanan's message, of Dec. 20, 1858, containing correspondenco of

Messrs. McLane and Pai'ker, commissioners in China, is given in Senate Ex.

Doc. No. 22, 35th Cong., 2d sess.
Instructions to Mr. Wm. B. Keed, Minister to China, are given in Senate Ex.

Doc, No. 47, 35th Cong., 1st sess. See also Senate Ex. Doc. No. 30, 36th

Cong., 1st sess., for further instructions.

'^The friendly and peaceful policy pursued by the Government of the
United States towards the Empire of China has produced the most sat-
isfactory results. The treaty of Tien-Tsin of the 18th June, 185S, has
been faithfully observed by the Chinese authorities. The convention
of the 8th November, 1858, supplementary to this treaty for the adjust-
ment and satisfaction of the claims of our citizens on Chiua, referred to
in my last annual message, has been already carried into effect, so far
as this was practicable. Under this convention the sum of 500,000 taels,
equal to about $700,000, was stipulated to be paid in satisfaction of tUe
claims of American citizens out of the one-fifth of the receipts for ton-
nage, import, and export duties on American vessels at the ports of
Canton, Shanghai, Foo-Chow; and it was * agreed that this amount shall
be in full liquidation of all claims of American citizens at the various
ports to this date.' Debentures for this amount, to wit, 300,000 taels
for Canton, 100,000 for Shanghai, and 100,000 for Foo-Chow, were deliv-
ered, according to the terms of the conveMtion,by the respective Chinese
collectors of the customs of these ports to the agent selected by our min-
ister to receive the same. Since that time the claims of our citizens have
been adjusted by ihe board of commissioners appointed for that purpose
under the act of March 3, 1859, and their awards, which proved satis-
factory to the claimants, have been approved by our minister. In the
aggregate they amount to the sum of $198,094.78. The claimants have
already received a large proportion of the sums awarded to them out of
the fund provided, and it is confidently expected that the remainder
will, ere long, be entirely paid. After the awards shall have been sat-
isfied, there will remain a surplus of more than $200,000 at the disposi-
tion of Congress. As this will in equity belong to the Chinese Govern-
ment, would not justice require its appropriation to some benevolent
object in which the Chinese may be specially interested?"

President Buchanan, Fourth Annual Message, 18C0.

"Your dispatch of December 24, No. 6, has been received. It gives
us an account of the capture and occui)ation of the city of Ningpo by
rebels, and of the proceedings adopted on that occasion by the American
consul there in concert with the British and French representatives.

"No one here could draw any inference of the condition of things at
450

CHAr. Ill ] CHINA. [§ 67.

Ningf o now, from even the fullest information of what it was so long
ago. Revolutions are apt to effect sudden and even great changes in
very short periods. In such a case you ought not to be trammeled with
arbitrary instructions, especially in view of the peculiar character and
habits of the Chinese ])eople and Government. In a different case the
President would certainly instruct you to refrain most carefully from
adopting any means which might disturb the confidence of the Imperial
Government or give it any cause of solicitude, even though it might
seem to be requiied for the safety of the property and interests of
American citizens. But liow can we know here what ability the Im-
perial Government may have, or even what disposition, to extend the
protection to foreigners which it had stipulated? Nevertheless, I think
that it is your duty to act in the spirit which governs us in our inter-
course with all friendly nations, and especially to lend no aid, encour-
agement, or countenance to sedition or rebellion against the Imperial
authority. This direction, however, must not be followed so far as to
put in jeopard^^ the lives or property of American citizens in China.
Great Britain and France are not only represented in China by diplo-
matic agents, but their agents are supported by land and naval forces,
while, unfortunately, you are not. The interests of tliis country in
China, so far as I understand them, are identical with those of the two
other nations I have mentioned. There is no reason to doubt that the
British and French ministers are acting in such a manner as will best
promote the interests of all the western nations. You are therefore
instructed to consult and co-operate with them, unless, in special cases,
there shall be very satisfactory reasons for separating from them, and
in every aspect of affairs you will keep me well advised. Our domes-
tic affairs are improving very rapidly, and I trust we sliall soon be able
to send a war steamer to your support."

Mr. Seward, Sec. of State, to Mr. Biirlinganie, Mur. (J, 186-2. MSS. Inst.,
China; Dip. Corr., 18G2.

In default of protection from the local authorities, the officers of
United States consulates in China are entitled to provide themselves
with and use firearms to defend themselves from mob attack.

Mr. Seward, Sec. of State, to Mr. Williams, Aug. !'>, 1st;;;. MSS. Inst., China.

Consuls in China should report to the legation all cases tLMiding to
bring on a conflict and wait instructions before resorting to force; and
the legation, before resorting to force, should make an earnest rei)re-
seutation to the Chinese Governuient.

Mr. Seward, Sec. of State, to Mr. Williams. Nov.-iO, 1SG(;. MSS. Inst., China.

The assumption by the Chinese Goverinnent of jurisdiction in suits,
civil or criminal, against citizens of the United States in China is in
conflict with the treaty of June 18, 1858, and will not be permitted by
the Government of the United States.

Mr. Seward, Sec. of State, to Mr. Browne, Feb. 1-, 18159. MSS. lust., China.

451

§ 67.] INTERVENTION. [CHAP. III.

" Eeferring again to your dispatch, No. 8, of the 4th of May last, I
propose to give briefly the views of the Department as to the policy to
be pursued toward China.

"I am induced to do this mainly because the charge d'affaires of North
Germany has, under instructions from his Government, inquired of me
whether the President still adheres to the principles established by the
additional articles to the treaty of June 18, 1858, which were concluded
July 28, 1868. That Government has on several occasions manifested
a desire to harmonize its policy with ours in the Pacific. While I have
freely communicated to Mr. Krause the views which we entertain, and
have gone so far as to read to him copious extracts from the communi-
cations of Mr. Browne, and Mr. George Seward, from China, I thought
as you are soon to meet Mr. Burlingame and his colleagues, it maj" be
well to give you a little more in detail the views of the President on
this question. The great principle which underlies the articles of July,
18G8, is the recognition of the sovereign authority of the Imperial Gov-
ernment of Pekin over the people of the Chinese Empire, and over
their social, commercial, and political relations with the western powers.
Although it is true that many of the Christian Governments, including
the United States, had before then concluded treaties with the Imperial
Government, yet it is scarcely exaggeration to say that their relations
at that time were rather those of force than of amity.

" The commercial foothold along the coast had been gained by con-
flict or by demonstrations of force, and were held in the same way.
The occupation which, orginally hostile, had become commercial — and
so far friendly, as the relations of commerce demanded a show of amity —
aimed in the commencement, with some European settlers, at territorial
acquisition ; but this tendency' had been checked by the rivalry of dif-
ferent nationalities, until the foreign jurisdiction, more by the tacit
consent of the foreigners than from any active power exercised by the
Chinese, had become limited to the essential matters of the municipal
government of the communities of Europeans and the exercise of juris-
diction over their persons and properties. The communication between
China and the outside world was merely confined to the trading i)oints.
With the intellects that rule that nation of 450,000,000 of people, with
the men who gave it its ideas and directed its policy, with its vast
internal industries, with its great agricultural population, the traders,
consuls, and functionaries of the ports rarely came in contact except in
the contact of war. The European Chinese policy was one of isolation,
inasmuch as it only sought the development of a foreign trade at cer-
tain particular ports, and of disintegration, as it practically ignored
the central Government, and made war upon the provinces to redress
its grievances and to enforce its demands.

"It is true, indeed, that by the treaty of Tien-Tsin, in 1858, the priv-
ilege was secured to the United States and the European powers to
maintain legations at Pekin, and that for the ten years that followed
452

CHAP. III.] CHINA. [§ 67.

diplomatic representatives resided there. It is also true tliat from that
residence and the contact with the higher Chinese officials there has
come a better knowledge of the Chinese nation, and of the relation
between its people and its Government; but it is none the less true
that those treaties closed a war which resulted disastrously to China;
that before their ratifications could be exchanged another war became
necessary to enforce them ; that the concessions they contained were
forced from the Imperial Government; that the new policy was not
favored by the Chinese statesmen ; that it did not measurably increase
the personal intercourse between the natives and the Europeans; and
that many of the wisest of the Chinese rulers honestly dreaded any in-
crease in such intercourse, as tending to the introduction in China of the
labor-saving machines of the west, which, in their judgment, would throw
multitudes of people in their thickly-settled country out of employment,
reduce them to beggary and starvation, and inflict irreparable woes on
China. For an able and temjierate statement of these views by a per-
son who is described by Mr. Browne as a man 'of acknowledged ability
and commanding influence,' 'who is rega7<ied as the most enlightened
statesman of the Empire,' 1 refer you to the remarkable inclosure,
marked No. 1, which I shall subsequently allude to further. To say
that such views are fallacious and obsolete ; that they are confuted by
the experience of western nations like England and Belgium, which
have as great a population to the square mile as China; that they are
opposed to all sound theories of political economy, does not meet the
case. The facts remain that they did at one time control the policy qf
China, and that they are still adhered to by many of her leading states-
men ; and in dealing with this question these facts must not be lost
sight of.

"The treaty negotiated by Mr. Burlingame and his colleagues was a
long step in another direction. It came voluntarily from China, and
placed that power in theory on the same diplonuitic footing with the
nations of the western world. It recognizes the Imperial Government
as the power to withhold or to grant further commercial ])rivileges, ami
also as the power whose duty it is to enforce the peaceful t'njoyment of
the rights already conferred.

" While it confirms the interterritorial Jurisdiction conferred by former
treaties upon European and American functionaries over the persons
and properties of their countrymen, it recognizes at the same time the
territorial integrity of China, and prevents such a jurisdiction from
being stretched beyond its original i)urpose. While it leaves in China
the sovereign power of granting to foreigners hereafter the right to
construct lines of railroads and telegraphs, of opening mines, of navi-
gating the rivers of the Emi)ire with steamers, and of otherwise increas-
ing the outlets for its wealth, by the use of the appliances of western
civilization, it contemplates that China shall avail herself of these appli-
ances by reasonable concessions, to be made as public necessities and

4dJ

§ 67.] INTERVENTION. [CHAP. III.

the loower of the Goverumeiit to iuflueiice public opinion will permit.
This treatj' has not yet been ratilied by the Imperial Government, and
I am informed by Mr. Browne that Prince Kung 'deems it advisable
to defer the exchange of ratifications till the return of the Chinese
l)lenipotentiqi'ies.' Mr. Browne does not ' infer any slight to our Gov-
ernment from this delay, or any want of appreciation of its friendship,'
and he thinks that 'the true cause of the delay may be found in the
peculiar attitude of China toward all the treaty powers.' ' When the
Government of China,' he adds, ' is satislied that it will not be injurious
to its interests to accept these articles, it will do so.'

"The President has been disposed to view this matter in the same
light, and, therefore, has not pressed for a ratification, feeling confident
that, as the treaty is so much in the interest of China, the statesmen of
that Empire must inevitably see the propriety of authorizing the ratifi-
cations to be exchanged. Rumors reach us by telegraph from Hong-
Kong, by way of London, that the Imperial Government have decided
not to ratify this treaty, but we are not inclined to credit them, as they
are opposed to the general tenor of our information. Some things have
taken place, however, which, regarded by themselves, tend to lead us
to the conclusion that it is possible that China may reverse her policy ;
and in order that you may have full information on this subject, it is
proper that I should briefly state them.

" Not long after the treaties of Tien-Tsin, what is known as the co-op-
erative policy of the great powers in China began ; I think this dates from
about the year 1S63, but it is immaterial for my present purpose whether
it began earlier or later. Under this policy, favored by the fact that most
or all of the treaties with the western powers contained the most-favored-
nation clause, the Christian communities of all nationalities in China
have been regarded as having a common political as well as commercial
interest, to be i)ursued under joint counsels, and it has followed from
this that in important matters the Chinese officials have been made to
see, sometimes even with a show of ostentation, that there was a sub-
stantial unity of design among all the powers. The apprehension has
been expressed lest the operation of the eighth article of the treaty of
July should put a stop to this co-operative policy ; and I am bound to
say that, so far as that policy- was aggressive and attempted to force
upon China measures which could not be enforced upon a European or
American state by the rules of the equitable code which regulates the
intercourse of civilized nations, in ray judgment, that article may, when
ratifications are exchanged, prevent the United States from participat-
ing in such a ])olicy.

" The question becomes a practical one from the fact that the revision
of the British treaty of 1858 is under consideration. The twenty-seventh
article of that treaty provided that either party might ' demand a further
revision of the tariff and of the commercial articles of the treaty at the
end often years; but if no demand be made on either side within six
454

CHAP. III.] . CHINA. [§ G7.

montlis after the end of the first t(Mi years, tbeu the ttirifl'sljull remain
in force for ten years more, reckoned from the end of the preceding ten
years.'

"The thirtieth article of the treaty between China and the United
States of 1858 provides that ' shouhl at any time the Ta-Tsing Empire
grant to any nation, or the merchants or citizens of any nation, auy right,
privilege, or favor, connected either with navigation, commerce, i)olitical)
and other intercourse, which is not conferred by this treaty, such right,
privilege, or favor shall at once inure to the benefit of the United
States, its public ofQcers, merchants, and citizens,' Thus the United
States became directl}' interested in the revision of the British conces-
sions.

"It being well understood that Great Britain would, when the time
came, demand, among other things, the right to navigate the interior
waters of the Empire with steam, the right to construct and to hire
warehouses in the interior for the storage of goods, and the right to
work coal mines, the Government at Pekin, on the 12th of October,
1867, took steps to get information from the different parts of the Em-
pire upon the subject of the revision. Among others, Tsang-Kwohfan,
acting governor of the provinces of Kiangru, Nganhioui, and Kiangri,
' a man over seventy years of age and of distinguished reputation
throughout the Empire,' received these instructions, and made, in an-
swer to them, the able report, to the copy of which, herewith inclosed,
marked Xo. 1, I have already called your attention.

" Though the work of a conservative miud that clings to the traditions
of the i)ast, and sees few good results in change, it is moderate and
temperate, and nuist be conceded to be, from the Chinese standpoint, a
not unwise view of the subject. With all its conservatism it is easy to
trace in it the enlarging and modifying influences of contact with the
west.

" In substance, howevei-, it recommends the Emperor's advisers not
to grant the important new concessions asked for by the Government of
Great Britain.

" In November last the expected demands were made on the part of
Great Britain by Sir llutherford Alcock, in a i)ersonal interview with
Prince Ivung and some of the other ministers. They were made in
strong language, as necessary to the proi)er enjoyment of the rights
conceded by tha treaty of 1858, and the Chinese Government was
warned in advance of the probable course Great Britain would juirsue
in case of refusal. The American minister gave Sir Kutherford Alcock
the support of his presence at the interview, and afterward received
from Sir Rutherford full copies of an account of it which was drawn up
in the British legation and transmitted to Prince Kung. I inclose,
marked No. 2 and No. 3, copies of these documents.

" Prince Kung, on his part, soon replied in a dignitied and moderate
way to the peremptory demands of Sir Eutherford Alcock. lie ad-

4iOo

§ 67.] INTERVENTION. [CHAP. III.

mitted the substautial accuracy of Sir Rutherford's account of the
interview. He said that China and Great Britain could not be coerced
into a simihirity, neither could either wholly adopt the usages of the
other. He deprecated the entire submission of China to the demands of
the foreign merchants. He denied that there had been willful violations
of the treaty. He stated, in detail, manyijoints in which China is pre-
pared to make concessions, which will, he thinks, give to the foreign
merchants all they ought to ask. But to admit steamers on the interior
lakes and rivers, to establish hongs, and to carry on mining operations
in the interior, will, in the judgment of the Prince, be so distasteful to
the peoi)le that it will be impracticable for the Government to attempt
to carry out the terms of such a concession should it be made; and
Great Britain, in that case, would have just cause to upbraid China for
bad faith.

" To the representation that these concessions would be beneficial to
China, the Prince replies that a good physfcian ascertains the condition
of his patient before deciding on the remedies, and intimates that he
knows the condition of China better than Sir Rutherford Alcock does;
and he closes by furnishing the British envoy with a memorandum of
the basis for a revision which will be acceptable to the Chinese Gov-
ernment. •! inclose copies of these papers, marked Xo. 4 and No. C.

"As Mr. Browne had, in ])ursuance of the co-operative policy, inter-
fered personally and in writing (see inclosure No. 5) on behalf of the
British claim for a revision. Prince Kung, about the same time, ad-
dressed a note to him, of which 1 inclose a copy (No. 7).

" The basis for a revision, which was proposed by the Chinese Gov-
ernment, conceded the opening of landing stages on the Yangtse at
points to be agreed upon ; the working of mines in the vicinity of one
or more of the treaty ports; the right of inland navigation by vessels
not propelled by steam, this restriction to cease when Chinese use ves-
sels propelled by steam ; a steam-tug on the Poyang Lake; and the
free right to travel throughout the laud, and to hire lodgings and ac-
commodations for produce or goods.

" Mr. Ross Browne, who sympathized and co-operated with the British
minister throughout the negotiations, appears to think that the points
gained may become of importance as a starting point for negotiations
hereafter. I inclose you a copy of his letter to Sir Rutherford Alcock
on the subject (No. 8).

"The British minister at Washington, on the 9th day of June last,
notified the United States of the decision of Her Majesty's Government
on this subject, by which it would ai)pear that they have decided to
accept the situation and wait quietly the operation of the causes which
are working in the Chinese mind. I inclose (marked No. 0) a copy of
an extract from a letter from the board of trade, which has been sent
to Sir Rutherford Alcock for his guidance. Such course strikes me as
wiser than the more vigorous policy which Sir Rutherford Alcock seems
45G

CHAP, til] china. [§ 67.

to have contemplated. The points gained may not be as important as
(iould be desired, yet they have been gained peaceably, by negotiation,
and are yielded by China as a right flowing legitimately and necessarily
from former treaties.

" It certainly looks, on the face of this correspondence, as if the con-
duct of the Emperors ministers had been inspired from the first by a
sense of duty, by a desire to observe good faith toward the western
l)owers, and by a willingness to extend commercial relations with those
powers, when they felt that they could do so without prejudice to their
own position and without injury to the people whose government was
intrusted to them.

" I will not dwell upon the obvious difficulty of inoculating new ideas
u])on such a people, nor upon the evident fact that intelligent states-
men like Prince Kung and his associates measure those difliculties
quite u)) to their full value.

"Every consideration, from whatever i)oint of view, leads me to be-
lieve that it is neither wise nor just to force the Emperor's advisers into
a position of hostility so long as we have cause to think that they are
willing to accept the present situation, and to march forward, although
with the prudence taught them by a Chinese education. You will un-
doubtedly meet JNIr. Builingameand his associates in Berlin. You will,
if you i^lease, ascertain from him whether he has definite information
as to the intentions of the ministry at Pekin. Unless it shall appear
that they have already decided not to ratify the treaty of 1808, or unless
you shall be satisfied that such will be their decision, and that the policy
inaugurated by Mr. Burliugame is to be reversed, you will render him
and his associates whatever assistance you can, in securing the co-oper-
ation of North Germany in the new Chinese i)olicy. You will also
doubtless have an opportunity to impress upon Mr. Burlinganu> the
importance to China of an early ratification of the treaties. I have
staged already that the President has no solicitude as to the purpose
of the Emperor's advisers in that respect. But he thinks it would be
well to have defined in a permanent law, as soon as i)Ossible, the rela-
tions that are hereafter to exist between the United States and China.
" Many considerations call for this beside those which may be de-
duced from what has gone before in this instruction. Every month
brings thousands of Chinese immigrants to the Pacific Coast. Already
they have crossed the great mountains, and are beginning to be fbund
in the interior of the continent. By their assiduity, i)atience, and fidel-
ity, and by their intelligence, they earn the good-will and confidence of
those who employ them. We have good reasoii to think that this thing
will continue and increase. On the other hand, in (3hina there will be
an increase in the resident American and European population, not by
any means commensurate with the growth of the Chinese immigration to
this country, but corresponding with the growth of our country, with

457

§ 67.] INTERVKNTION. [cHAP. III.

the development of its resources on the Pacific slope, and with the new
position in the commerce of the world which it takes with the comple
tion of the Pacific Kailroad. These foreigners settling in Chiua, occu-
pying the various quarters assigned to tliem, exercising municipal rights
over these quarters by virtue of land regulations, either made by them
or for them, b^' their home Governments, cease to be an aggressive ele-
ment in China, when once the jjriuciples of the treaty of July, 1SG8, are
promulgated as the law hereafter to regulate the relations between
Christendom and that ancient Empire. You will also say to Mr. Bur-
lingame that, while the President cordially gives his adhesion to the
princi])les of the treaty of 1868, and while he will, should that instrument
be ratified by China, cause it to be faithfully observed by the United
States, yet he earnestly hopes that the advisers of His Majesty the Em-
peror may soon see their way clear to counsel the granting of some
concessions similar to those asked for by Sir Ilntherford Alcock and
Mr. Eoss Browne. He will not assume to judge whether the temper of
the people of China will or will not at present justify their rulers in
doing so; but he thinks that he may, without impropriety, say, that
when it can be done without disturbing the good order of the Empire,
the results must be eminently favorable to the welfare and vrell-being
of the Chinese people. And he trusts that the statesmen of China, en-
lightened by the experience of other nations, will hasten at the earliest
moment, when in their judgment it can safely be done, to respond to
the friendly feeling and good wishes of the United States by moderating
the restrictions which fetter the commerce of the great Empire over
whose destinies they preside. He relies upon Mr. Burlingame and his
associates to impress upon their chiefs at home that the views of such
men as Tsang Kevohfan, however honest, are delusive ; that experience,
patent before them in every country through which they travel, has
shown them that the evils which seem to be dreaded by the oriental rulers
do not follow the free use of steam and of the telegraph : but that,
while these inventions improve the condition of all ranks in the com-
munity which uses them, their greatest meliorating influence is felt
among the laboring classes.

'•Since writing the foregoing instructions, I have received from Mr.
Burlingame a telegraphic dispatch dated August 31, 1809, in which
he says: 'I have leceived a dispatch from the Chinese Government
expressing strongly their satisfaction with, and acceptance of, the treaty
negotiated at Washington.'"

Mr. Fisb, Sec. of State, to Mr. Baucrolt, Ang. 31, ^G9. MSS. Inst., Geiin. ;
For. Eel., 1870.

" It was deemed advisable last summer to acquaint Mr. Bancroft, in

anticipation of the arrival of the Chinese mission at Berlin, with the

views of the present Administration concerning the policy to be pursued

toward China. As these instructions contain the substance of most

458

CHAP. III.] CHINA. [§ 67.

that it is necessary to say to you before you sail to your post, I inclose
a copy of them herewith and iuvite your special attention to them.

''You will observe that the President adheres to the policy adopted
in 1868, when the articles additional to the treaty of 1858 (commonly
known as the Bnrlingame treaty) were concluded. You will, tlicrefore,
so shape your private as well as your official conversation as to demon-
strate to Prince Knug the sincerity of the United States in its wishes
for the maintenance of the authority of the central Government and for
the peaceful spread of its intluence. You will make clear to the Govern-
ment to which you are accredited the settled purpose of the President
to observe with fidelity all the treaty obligations of the United States,
and to respect the prejudices and traditions of the people of China
when they do not interfere with rights which have been acquired to the
United States by treaty. On the other hand you will uot fail to make
it distinctly understood that he will claim the full performance, by the
Chinese Government, of all the promises and obligations which it has
assumed by treaties or conventions with the United States. On this
])oint, and in the maintenance of our existing rights to their full extent,
you will be always firm and decisive. While you will put forward these
claims where occasion requires, with prudence and moderation, you will
be unyielding in demanding the extreme protection of the American
citizens, commerce, and property which is conceded by the treaties, and
in requiring the full recognition of your own oflQcial position to which
you are entitled.

"The instructions to Mr. Bancroft set forth vso fully the policy of the

United States toward China, the ends to be accomplished there, ami the

peaceful spirit which is to animate your mission, that I content myself

with again referring you to them for your guidance in those respects."

Mr. Fish, Sec. of State, to Mr. Low, Dec. :i, 1869. MSS. lust., China: For.

Eel., 1870.

On April 4, 1870, Mr. Fish, Secretary of State, addressed a letter to
Mr. Robeson, Secretary of the Navy, in which it was stated that the
President had ordered that the naval forces of the United States on the
China seas should unite with the North German fleet there stationed in
repressing " cases of recognized piracy."
iVlSS. Dual. Let.

The President, in April, 1870, concurred in the i)roposition of (lie
German Government that there should be a combined action of the
powers concerned in the Chinese trade against the pirates on the Chi-
nese waters, and instructions were issued by the Navy DepartnuMit to
Admiral Kodgers accordingly.

Mr. Fisb, Sec. of State, to Mr. Low, Apr. 20, 1S70. MSS. Inst., China.

" Eeferriug to my No. 259, inclosing a copy of Mr. Fish's telegram of
the 1st instant, instructing you to propose to the North German Gov-

459

§ G7.] INTERVENTION. [CHAP. III.

ernment a suspeusiou of hostilities in Chinese waters, I have to say
that no reply or acknowledgment has been received.

"When the massacre of Tieu-Tsiu took place, Mr. Low was of opinion
that the outbreak was a local one and unpremeditated, * * * and
although the Chinese populace were still much excited, Mr. Low thought
that the dangerwas over, that the Government was sincere in its inten-
tion to prevent a repetition and to punish the offenders, and that there
was no probability of similar outbreaks elsewhere.

"In his subsequent dispatches he still adheres to his original opinion
that the disturbance was local and unpremeditated, and that the Gov-
ernment at Pekin sincerely desired to prevent a repetition aiid to pre-
serve peace ; but he appears to have decidedly modified his opinion as
to the probability that they will be able to do so. Bis doubts are
founded on the injudicious course pursued by the French charg6 d'af-
faires in demanding the summary execution of the Tieu-Tsin ofiBcials as
an ultimatum, and upon the hopes the populace in the large Chinese
cities derive from the state of war existing between Germany and
France, which they argue will neutralize the force of those two
powers. He expresses the fear that the Government at Pekin may
find itself too weak to resist the pressure of popular opinion in the
masses, acting in harmony with the cherished wishes and purposes of
the literati, and that it may be forced into war to i)revent popular
outbreaks.

"It seemed to the President that these views coming from a gentle-
man so cautious, dispassionate, and prudent as Mr. Low, were entitled
to more than the ordinary consideration. He therefore directed, after
consultation with the Cabinet, the telegram of the 1st instant to be sent
to you, believing that any advantage which one belligerent might gain
over the other in eastern waters would be of small consequence to the
victor, compared with the preservation of peace in China.

" The Piesident does not intend to depart from the policy pointed out
in Mr. Fish's dispatch No. 148, of August 31, 1869. He does not pro-
pose to take part, nor does he invite North Germany to take part, in
any controversy between France and China growing out of the massacre
of Tien-Tsin. He only desires that so far as the impression of the neu-
tralization of German and French influence by the state of hostilities
operated to enfeeble the central Government, that impression may be
removed; and that should unfortunately a general war be declared by
China, or should an outbreak against foreignera take place which the
Government cannot prevent nor punish, the several i)owers may be in a
position to aflbrd the fullest measure of protection.

"I inclose copies of two telegrams from Mr. Motley, which would seem
to indicate that the commanders of the French and Prussian fleets have
come to some understanding, but it is not clear that this has been rati-
fied at Berlin and Paris.
4G0

CHAP. III.] CHINA. [§ G7.

"I also inclose a copy of a communication of the otli instant from
Biiron Gerolt bearing upon this subject."

Mr. J. C. B. Davis, Acting Sec. of State, to Mr. Baucrott, Nov. 8, 1870. MSS.

Inst., Germ.; For. Rel., 1870.
As to protection of Americau interests in China and Japan, sec Senate Ex.

Doc. Nos. 52, 58, 4l8t Cong., Ist sess.

"Anticipating- trouble from this cause (the effect of the war between
France and Germany in aggravating the difliculties of foreigners in
China), I invited France and North Germany to make an authorized
suspension of hostilities in the East (where they were temporarily sus-
pended by the commanders), and to act together for the future protec-
tion, in China, of the lives and properties of Americans and Europeans."

President Grant, Second Annual Message, 1870.

On December 31, 1872, it was declared by the President that the
period had arrived when an audience by diplomatic representatives
with the Emperor of China should be demanded, but that this demand
should be in concert with the western powers.

Mr. Fish, Sec. of State, to Mr. Low, Dec. 21, 1872. MSS. Inst., China. See
same to same, Dec. 30, 1872.

This, however, was afterwards left to the "best judgment" of the
minister.

Mr. Fish to Mr. Avery, July 1, 1875, ibid. See infra, § 83.

" In connection with this subject 1 call the attention of Congress to a
generally conceded fact, that the great proportion of the Chinese immi-
grants who come to our shores do not come voluntarily to make their
homes with us and their labor i)roductive of general i)rosperity, but
come under contracts with head-men who own them aloiost absolutely.
In a worse form does this apply to Chinese women. Hardly a percepti-
ble percentage of them i)erform any honorable labor, but they are
brought for shameful purposes, to the disgrace of the comnuinities
where settled, and to the great demoralization of the youth of those
localities. If this evil practice can be legislated against, it will be my
pleasure, as well as duty, to enforce any regulation to secure so desira-
ble an end."

President Grant, Sixth Annual Message, 1874.

While the (Jnited States Government will not permit any discrimina-
tions against its citizens in China on account of their maintenance of
their religious views, this does not imply the countenancing of them in
" the obtrusive presentation of certain views in violation of the laws of
a country in which the parties have entered."

Mr. Fish, Sec. of State, to Mr. G. F. Seward, May 2, 1876. MSS. Inst., China.

There will be no diplomatic interposition in China to protect from
Chinese prosecution a native Chinese Christian preacher charged with

461

§ 67.] INTERVENTION. [CHAP. III.

a personal offense when the proceedings against him are exclusively for
such offense.

Mr. Fish, Sec. of State, to Mr. G. F. Seward, June 12, 1876. MSS. Inst., China.

As to course taken by the United. States legation in China in respect to mis-
sionaries, ftee instructions of Mr. Fish, Sec. of State, to Mr. G. F. Seward,
June 12, July 22, 1876; MSS. Inst., China; and Mr. Seward's dispatch of
May 9, 1876. See also supra, ^ 54.

The application of the settled principles of international law to the
Chinese in the United States is to be modified by the fact that the
Chinese decline to accept these principles, leading an isolated life in the
communities in which they are settled, always expecting to return to
China, and never, therefore, becoming domiciled among us, and that they
maintain the same system of isolation towards Americans in China,
regarding them always as strangers, more or less outside of the protec-
tion of the law.

Mr. Fish, Sec. of State, to Mr. G. F. Seward, Aug. 31, 1876. MSS. Inst., China.
This subject is discussed at length infra in this section.

The position of the United States as the only commercial or western
nation that is a commercial power of the Pacific Ocean, and as a country
exporting largely from and importing largely into China, and this by
the nearest line of approach, makes our relations with China peculiarly
close, and it is important for our legation to press upon China, in ordfer
to carry out freely these commercial relations, " that imported goods,
while they retain this quality, and are identified in form and condition
of importation, not having been broken up or distributed into the mass
of domestic property, are to be subjected to no further taxation ante-
cedent to such distribution, and to no discriminating taxation in their
quality of foreign goods after such distribution." There should also be
" no discrimination favorable to one foreign nation, directly or covertly,
in the adjustment of duties."

Mr. EvartR, Sec. of State, to Messrs. Angell et a?., June 7, 1880. MSS. Inst.,
China.

" I have the honor to acknowledge the receipt of your note of the 10th
of November last, in relation to the recent unfortunate occurrences at
Denver, Colo., by which certain Chinese residents of that city suffered
very serious injuries in their persons and property, were subjected to
wanton and undeserved outrage, and one of their number killed.

" These sad consef(uences resulted from the conduct and action of a
lawless mob, who, for a brief period, during the 31st of October and the
night following that day, obtained the mastery over the law and the
local authorities. The attack of the mob appears to have been, at first,
indiscriminately directed against the peaceable and law-abiding of the
whole community.

"I embrace this opportunity to state for your own information and
462

CHAP. III.] CHINA. [§ 67.

that of the Chiuese Government, which you worthily represent, that the
President, upon the receipt of the information that in this outbreak of
mob violence the Chinese residents of Denver had been made a special
object of the hatred and violence of that lawless mob, felt as much in-
dignation find regret as could possibly be felt by yourself or your Gov-
ernment, and I need scarcely' assure you that, in common with my col-
leagues in the executive government, I shared fully in this sentiment
of the President.

" You express in your note the desire that this Government shall ex-
tend protection to the Chinese in Denver, and see that the guilty per-
sons are arrested and punished; and you add that ' it would seem to
be just that the owners of the property wantonly destroyed shall in
some way be compensated for their losses.'

" It affords me pleasure to assure you that not only in Denver, but in
every other part of the United States, the protection of this Government
will always be, as it always has been, freely and full^' given to the na-
tives of China resident in the country, in the same manner and to the
same extent as it is afforded to our own citizens. As to the arrest and
punishment of the guilty persons who composed the mob at Denver, I
need only remind you that the powers of direct intervention on the part
of this Government are limited by the Constitution of the United States.
Under the limitations of that instrument, the Government of the Federal
Union cannot interfere in regard to the administration or execution of
the municipal laws of a State of the- Union, except under cin'-urastances
expressly provided for in the Constitution. Such instances are confined
to the case of a State whose power is found inadequate to the enforce-
ment of its municipal laws and the maintenance of its sovereign au-
thority ; and even then the Federal authority can only be brought into
operation in the particular State, in response to a formal request from
the proper political authority of the State. It will thus be perceived
that so far as the arrest and punishment of the guilty parties may be
concerned it is a matter which, in the present aspect of the case, belongs
exclusively to the government and authorites of the State of Colorado.
In this connection it is satisfactory to be able to note with approval
the conduct of the public authorities of Colorado, and the people of
Denver, on the unfortunate occurrence in question. It was seen then,
as it always is in such outbreaks, that the fury of the brutal and lawless
who compose such mobs is ultimately turned against the weak and de-
fenseless, and it is creditable alike to the appreciative sense of public
duty of the authorities of Colorado and the humane instincts of the
citizens of Denver, that their first care in this emergency (involving as
it did for the moment the lives and property of all alike) was the pro-
tection and safety of the Chinese residents, whose presence seemed to
serve as a special incitement to the passions of the mob. And this
brings me to the suggestion of your note, ' That the owners of the prop-

463

§ 67.] INTERVENTION. [CHAP. III.

erty wantonly destroyed sliull in some way be compensated for their
losses.'

'•It seems superfluons to recall to your attention the fact, but too well
attested by history, that on occasions, happily infrequent, often with-
out motive in their inception, and always without reason in their work-
inf;, lawless persons will baud together and make up a force in the
character of a mob of sufficient i)Ower and numerical strength to defy
for the moment the denunciations of the law and the power of the local
authorities. Such incidents are peculiar to no country. Neither the
United States nor China are exempt from such disasters. In the case
now under consideration it is seen that the local authorities brought
into requisition all the means at their command for the suppression of
the mob, and that these means proved so effective that within twenty-
four hours regular and lawful authority was re-established, the mob
comi)letely subdued, and many of the ringleaders arrested.

" Under circumstances of this uature when the Government has put
forth every legitimate effort to suppress a mob that threatens or at-
tacks alike the safety and security of its own citizens and the foreign
residents within its borders, I kuow of no principle of national obliga-
tion, and there certainly is none arising from treaty stipulation which
renders it incumbent on the Governmeutof the United States to make
indemnity to the Chinese residents of Denver, who in common with
citizens of the United States, at the time residents in that city, suffered
losses from the operations of the mob. Whatever remedies may be
afforded to the citizens of Colorado or to the citizens of the United
States from other States of the Union resident in Colorado for losses
resulting from that occurrence, are equally open to the Chinese resi-
dents of Denver who may have suffered from the lawlessness of the
mob. This is all that the principles of international law and the
usages of national comity demand.

" This view of the subject supersedes any discussion of the extent or
true meaning of the treaty obligations on the part of this Government
toward Chinese residents, for it proceeds upon the projwsition that
these residents are to receive the same measure of protection and vin-
dication under judicial and political administration of their rights as
our own citizens.

" In communicating to you the views of this Government in the i)rem-
ises, I have pleasure in adding the assurance that it will upon every
occasion, so far as it properly can, give its continued attention to every
just and ])roper solicitude of the Chinese Government in behalf of its
subjects established here under the hospitality of our treaties."

Mr. Evarts, Sec. of State, to Chen Lan Piu, Dec. 30, 1880. MSS. Notes, Chiua;
For. Eel., 1681.

"Referring to your note of the 10th of November last, and my prede-
cessor's reply thereto of the 30th of December following, on the subject
4G4

CHAP. III.] CHINA. [§ G7.

of the riot on the 31st of last October, at Denver, Colo., I have now the
honor to acknowledge the receipt by the Department of your notes of
the 21st of January and 25th of February, respectively, in relation to
the same matter.

"I note with satisfaction the expressions of appreciation of the dis-
position of this Government toward that of China, and the subjects of
China resident in the United States, which you so frankly avow. I
must express my regret, however, that the views so clearly expressed
by my predecessor in regard to the question of liability of this Govern-
ment to make pecuniary indemnity to the Chinese sufferers by the
occurrences at Denver, failed to commend themselves to your enlight-
ened judgment. Concurring, as I do, in the conclusions thus reached
by Mr. Evarts, and conceiving the principle upon which they rest to
be in consonance with public law and the universal practice of nations,
I must insist that that j^rinciple is the one by which the obligations of
this Government in regard to the incident in question are to be meas-
ured. After recounting the efforts put forth by the local authorities
for the suppression of the riots (efforts that happily proved successful
with only the loss of one life, although the mob numbered thousands),
my predecessor thus states the rule:

" 'Under circumstances of this nature, when the Government has put
forth every legitimate effort to suppress a mob that threatens or attacks
alike the safety and security of its own citizens and the foreign resi-
dents within its borders, I know of no principle of national obligation,
and there certainly is none arising from treaty stipulation, which ren-
ders it incumbent on the Government of tbe United States to make
indemnity to the Chinese residents of Denver, who, in common with
citizens of the United States at that time resident in that citj', suffered
losses from the operations of the mob. Whatever remedies may be
afforded to the citizens of Colorado, or to the citizens of the United
States from other States of the Union resident in Colorado, for losses
resulting from that occurrence, are equally open to the Chinese resi
dents of Denver who may have suffered from the lawlessness of that
mob. This is all that the principles of international law and the usages
of national comity demand.'

"You observe with reference to these views, 'that it appears to you
that treaties, as well as the Constitution, are the supreme law of this
land.' 'The Chinese residents,' you add, 'who were subjected to the
wanton outrage of the mob came to this country under the right of
treaties between China and the General Government of the United
States,' and quoting from the verdict of the coroner's jury at the inquest
over the body of the unfortunate Sing Lee, you ])roceed to say that
'this verdict shows clearly that the local authorities had not brought
into requisition all the means for the suppression of the mob.' Invok-
ing in support of these views the treaty of June, 1858, between the
S. Mis. 162— VOL. I 30 465

§ fi7.] INTERVENTION. [CHAP. 111.

United States and China, you partially quote the provisions of the first
article, the entire text of which is as follows:

"'There shall be, as there have always been, peace and friendship
between the United States of America and the Ta Tsiug Empire, and
between their people respectively. They shall not insult or oppress
each other for any trifling cause, so as to produce an estrangement
between them; and if any other nation should act unjustly or oppress-
ively, the United States will exert their good offices, on being informed
of the case, to bring about an amicable arrangement of the question,
thus showing their friendly feelings.'

"In submitting for your consideration such remarks as these observa-
tions in your note seem to demand, I first bring to your notice the pro-
visions of the first paragraphs of Article XI of the same treaty. It
says:

"'All citizens of the United States of America in China, peaceably
attending to their affairs, being placed on a common footing of amity and
good-will with the subjects of China, shall receive and enjoy for them-
selves and everything appertaining to them the protection of the local
authorities of Government, who shall defend them from all insult or
injury of any sort. If their dwellings or property be threatened or
attacked by mobs, incendiaries, or other violent oi lawless persons, the
local officers, on requisition of the consul, shall immediately dispatch a
military force to disperse the rioters, apprehend the guilty individuals,
and punish them with the utmost rigor of the law.'

" You will perceive that neither in this article nor in any other part of
the same treaty is there any provision reciprocal with this with regard
to subjects of China resident in the United States, and the reason for
this must at once be obvious to your superior intelligence. No treaty
r,tipulatious are necessary to enable subjects of China to come to this
country, take up their residence here, and pursue any lawful business
or calling in common wich the citizens or subjects of every country in
the world who may choose to iiuikc their home in this Eepublic. The
subjects of China, in respect to their rights and security of person and
property, are placed under the protection of the laws of the United
States in manner and measure equal to that extended to native citizens
of this country, and that the Chinese residents of Denver at the time
of the unfortunate occurrences now in question were in the enjoyment
of this common protection of the law is shown by the report of the
Chinese consul, Mr. Bee, to you, a copy of which accompanies your
note. One or two of the local functionaries may, at first, in the pres-
ence of an enraged mob numbering over 5,000, have shown some hesi-
tation and timidity. Under the circumstances, it cannot be a matter
of surprise that they were seized with such feelings, but, as is seen by
the report in question, the governor of the State, the mayor of the city,
and the sheriff, acting in conjunction in the exercise of their respective
466

CHAP, m.] CHINA. [§ fi7.

powers, succeeded in quelling this formidable riot ^which luid its incip
iency in a drinking-house where Chinese and others were engaged in
gambling on Sunday, contrary to the laws of the State) at 2 o'clock in
the afternoon, within the short space of eight hours, quiet and order
having been comi)letely restored by 10 o'clock of the same night. A
more successful resistance to a mob of such character and numbers can-
not be found in the history of any community or country, and that this
should have been accomplished without the shedding of blood or a resort
to the use of fire-arms is at once creditable to the authorities and to the
popular respect for the laws.

"And it is pertinent to add here that from Mr. Bge's report, it also
appears that amongst a number of the ringleaders who have been
arrested, two have been identified as the chief assailants of Sing Lee,
and are now held for trial for the murder.

"Your observations to the effect that treaties form a part of the
supreme law of this land equally with the Constitution of the United
States is evidently based on a misconception of the true nature of the
Constitution. That instrument, together with all laws which are made
in pursuance thereof, and all treaties made or which shall be made
under the authority of the United States, are the supreme law of the
land. . Such is the language of the Constitution, but it must be observed
that the treaty, no less than the statute law, must be made in conform-
ity with the Constitution, and were a provision in either a treaty or a
law found to contravene the princii)les of the Constitution, such pro
vision must give way to the superior force of the Constitution, which is
the organic law of the Republic, binding alike on the Government and
the nation. It is under this interpretation of the Constitution that for-
eigners, no less than citizens, find their best guarantee for that security
and protection in their persons and property which it is the aim and
desire of the Government of the United States to extend to all alike.

"Having thus replied to the several observations and suggestions
submi tted in your note, I venture to express the hope entertained by
this Government that the determination thus reached after mature con-
sideration, will be accepted by that of China as the final conclusion of
the subject."

Mr. Blaino, Sec. of State, to Chen Lan Pin, Mar. 25, 1881. MSS. Notes, China ;

For. Rel., 1881.
As to injuries from mob violence, see ivfra, ^ 22(i.

The United States would view in an unfriendly light any action by
China giving exclusive telegraphic privileges to any other foreign
nation.

Mr. Blaine, Sec. of State, to Mr. Holcombe, Dec. 10, 1881. MSS. lust., China.

The Government of the United States, on application from the min-
ister of China, will call upon the governors of States in which there

467

§ 67.J INTERVENTION. [CHAP. III.

have beeu alleged outrages on Chinese to investigate such allega-
tions.

Mr. Frelinghuyseu, Sec. of State, to the Governor of California, June 20, 1882.

MSS. Dom. Let.
As to right by Chinese laborerH of transit over the United States, see letter of
Mr. Frelinghuysen, Sec. of State, to Mr. Folger, Jan. 9, 1883. MSS. Dom.
Let.

" The attitude of the United States towards China, as towards the
other countries of Eastern Asia, has been consistently a friendly one.
We have not attenii)ted to impose our views upon them by force, but
have preferred to trust to frank and friendly argument, limiting our
demand to what we might with justice ask, and, supporting them with
frank argument and appeals to the sense of justice of the Imperial
Government; we have been met in a like amicable spirit, and it is be-
lieved that the result has been for the advantages of both the nations.
As a result of this policy, citizens of the United States have estab-
lished themselves in the open ports of China, have there engaged in
legitimate and useful occupations, benefiting China no less than them-
selves, and the United States have there invested their capital and the
fruits of their labor, and have done all this under the express protec-
tion of wise treaty i)rovisions binding upon the Imperial Government
and all Chinese officials. The United States cannot assent at this late
day to a return to the aucient exclusive system, which will involve
destruction of the property of their citizens and abrogation of their
vested rights."

Mr. Frelinghuyseu, Sec. of State, to Mr. Young, Feb. 26, 1883. MSS. Inst.,
China.

The appointment of missionaries by our Government to official rep-
resentative positions in China is " a question to be treated with great
care, not less for their own protection and that of their colleagues, than
for the interests of the public service."

Mr. Frelinghuysen, Sec. of State, to Mr. Young, Mar. 8. 1883. MSS. Inst.,
China.

The Department of State will take all steps necessary to comply with
the third article of the Chinese immigration treaty in so far as it con-
strains this Government to "exert all its power to devise measures for
the protection of any Chinese who suffer ill-treatment, and secure to
them the lull enjoyment of their" rights.

Mr. Frelinghuysen, Sec. of State, to the Governor of Georgia, M.ar. 12, 1883.
MSS. Dom. Let.

" Questions have arisen touching the rights of American and other
foreign manufacturers in China under the provisions of treaties which
permit aliens to exercise their industries in that country. On this spe-
cific point our own treaty is silent, but under the operation of the most-
favored-nation clause, wo have like privileges with those of other pow-
468

CHAT. III.] CHINA. [§ 67.

ers. While it is the duty of the Government to see that our citizens
have the full enjoyment of every benefit secured by treaty, I doubt the
expediency of leading in a movement to constrain China to admit an
interpretation which we have only an indirect treaty right to exact.
The transference to China of American capital for the employment
there of Chinese labor would in effect inaugurate a com))etiti()n for the
control of markets now supplied by onr home industries.

"There is good reason to believe that the law restricting the immi-
gration of Chinese has been violated, intentionally or otherwise, by the
officials of China upon whom is devolved the duty of certifying that the
immigrants belong to the excepted classes.

" Measures have been taken to ascertain the facts incident to this
supposed infraction, and it is believed that the Government of China
will co-operate with the United States in securing the faithful observ-
ance of the law."

President Arthur. Third Annual Message, 1883.

Neither France nor China has the right arbitrarily to close the
Chinese treaty ports, though this may be <lone by China for necessary
defense.

Mr. Frelinghiiysen, Sec. of State, to Mr. Yonnti, Jan. 2'2, 1884. MSS. Inst.,
Cliiua.

A United States consul in China is required, within the range of his
duties, to obey the official order of the minister of the United States in
China. If this order is reversed by the Department of State, the re-
versal is communicated through the minister, until which time the order
binds.

Ml-. Frelinghnysen, Sec. of State, to Mr. Young, Feb. 6, 1884. MSS. Inst.,
China.

" The i)urpose of the neutral powers is ])rimarily the protection ot
their own interests at the several treaty ports. The foreign settlements
at the open ports are singularly abnormal growths. Under no one
flag, they are under the i)rotection of all. In whatever concerns their
trade, their shipping, and their vested interests, rhey are distinctively
foreign to the administrative system of China.

" Hence, as you have lately learned, when the pos.sible closing of
Canton by the Chinese as a measure of protection against threatened
French aggression was seriously contemplated, the other treaty powers
felt justified in expecting of France a formal declaration of purpose not
to attack Canton. The view of the United States, as expressed to Great
Britain, was that neither China nor France had the right to close the
treaty ports, but that if they should be attacked by France, China could
not be denied a right of defense, to be availed of in any manner legiti
mate to a state of war.''

Mr. Frelinghuyseii, Sec. of State, to Mr. Young, Mar. 21, ie~4. MSS. Inst.,

China.
As to treaty with China, see infra, ^ 144.

469

J 67.] INTERVENTION. [CHAP. III.

<' The obligatiou of a neutral Government to prevent its citizens from
joining in hostile movements against a foreign state is limited by the
extent to which such citizens are under its jurisdiction and by the mu-
nicipal laws applicable to their actions. Hence, a citizen outside of such
jurisdiction may not be controlled in his free acts ; but what he does
is at his own risk and peril. If he offers his services to a combatant,
that is a matter of private contract, which it may be equally improper
for his own Government to forbid or protect ; and such service in legit
imate war is not contrary to international law.

" In China, however, foreign powers have an extraterritorial juris-
diction conferred by treaty. This jurisdiction is in nowise arbitrary,
but is limited by laws, and is not preventive but punitory. If a citizen
of the United States in China commit an offense against the peace of
China, it is triable in the consular courts. Section 4102 of the Ee-
vised Statutes provides that ' insurrection or rebellion against the Gov-
ernment of either of those countries [*. c, the countries named in sec-
tion 4083, whereof China is one], with intent to subvert the same, and
murder, shall be capital offenses punishable with death,' &c., the con-
sular court and the minister to concur in awarding the penalty. But
the simple act of entering into a private contract to serve either com-
batant in open warfare would not appear to be triable under this sec-
tion ; and, even if it were, this Government would have no rightful
power to forbid such service."

Mr. Bayard, Sec. of State, to Mr. Young, Mar. 11, 1885. MSS. Inst., China.
As to local passports in China, see Mr. Frelinghuysen, Sec. of StatCy to Mr.
Young, Aug. 8, 1884, aad Jan. 19, 1885. MSS. Inst., China, cited infra,
* 193 ff.

" It is made the constitutional duty of the President to recommend
to the consideration of the Congress, from time to time, such measures
as he shall judge necessary and expedient. In no matters can the neces-
sity of this be more evident than when the good faith of the United
States under the solemn obligation of treaties with foreign powers is
concerned.

" The question of the treatment of the subjects of China sojourning
within the jurisdiction of the United States presents such a matter for
the urgent and earnest consideration of the Executive and the Con-
gress.

" In my first annual message, upon the assembling of the present
Congress, I adverted to this question in the following words :

" ' The harmony of our relations with China is fully sustained.

" ' In the application of the acts lately passed to execute the treaty of
1880, restrictive of the immigration of Chinese laborers into the United
States, individual cases of hardship have occurred beyond the power of
the Executive to remedy, and calling for judicial determination.

" ' The condition ©f the Chinese questio» in the Western States and
470

CHAP. III.] CHINA. [§ 67.

Territories is, despite this restrictive legislation, far from being satis-
factory. The recent outbreak in Wyoming Territory, where numbers
of unoffending Chinamen, indisputably within the protection of the
treaties and the law, were murdered by a mob, and the still more recent
threatened outbreak of the same character in Washington Territory,
are fresh in the minds of all, and there is apprehension lest tlie bitter-
ness of feeling against the Mongolian race on the Pacific slope may find
vent in similar lawless demonstrations.

" 'All the power of this Government should be exerted to maintain the
amplest good faith toward China in the treatment of these men, and the
inflexible sternness of the law in bringing the wrongdoers to justice
should be insisted upon.

" 'Every effort has been made by this Government to prevent these
violent outbreaks, and to aid the representatives of China in their in-
vestigation of these outrages ; and it is but just to say that they are
traceable to the lawlessness of men not citizens of the United States
engaged in competition with Chinese laborers,

"'Race prejudice is the chief factor in originating these disturbances,
and it exists in a large part of onr domain, jeopardizing our domestic
peace and the good relationship we strive to maintain with China.

" ' The admitted right of a Government to prevent the influx of ele
ments hostile to its internal peace and security may not be questioned,
even where there is no treaty stipulation on the subject. That the ex-
clusion of Chinese labor is demanded in other countries where like con-
ditions prevail is strongly evident in the Dominion of Canada, where
Chinese immigration is now regulated by laws more exclusive than our
own. If existing laws are inadequate to compass the end in view, 1
shall be prepared to give earnest consideration to any further remedial
measures within the treaty limits which the wisdom of Congress may
devise.'

"At the time I wrote this the shocking occurrences at Rock Springs,
in Wyoming Territory, were fresh in the minds of all, and had been
recently presented anew to the attention of this Government by the
Chinese minister in a note, which, while not unnaturally exhibiting
some misconception of our Federal system of administration in the
Territories while they as yet are not in the exercise of the full meas-
ure of that sovereign self-government pertaining to the States of the
Union, presents in truthful terms the main features of the cruel out-
rages there perpetrated upon inoffensive subjects of China. In the
investigation of the Rock Springs outbreak and the ascertainment of
the facts on which the Chinese minister's statements rest, the Chinese
representatives were aided by the agents of the United States, and
the reports submitted, having been thus framed and recounting facts
within the knowledge of witnesses on both sides, possess an impartial
truthfulness which could not fail to give them great impressiveaess.

471

§ 67.] INTERVENTION. [CHAP. III.

"The facts, which so far are not controverted or affected by any ex-
culpatory or mitigating testimony, show the murder of a number of
Chinese subjects in Sej^tember last, at Eock Springs, the wounding of
many others, and the spoliation of the property of all when the unhappy
survivors had been driven from their habitations. There is no allega-
tion that the victims, by any lawless or disorderly act on their part,
contributed to bring about a collision. On the contrary, it appears that
the law-abiding disposition of these ])eople, who were sojourners in our
midst under the sanction of hospitality and express treaty obligations,
was made the pretext for the attack upon them. This outrage upon
law and treaty engagements was committed by a lawless mob. None
of the aggressors, happily for the national good fame, appear by the
reports to have been citizens of the United States. They were aliens,
engaged in that remote district as mining laborers, who became excited
against the Chinese laborers, as it would seem, because of their refusal
to join them in a strike to secure higher wages. The opi)ression of
Chinese subjects by their rivals in the competition for labor does not
differ in violence and illegality from that applied to other classes of
native or alien labor. All are equally under the protection of law, and
equally entitled to enjoy the benefits of assured public order.

"Were there no treaty in existence referring to the rights of Chinese
subjects, did tbey come hither as all other strangers who voluntarily
resort to this laud of freedom, of self-government, and of laws, here
peaceably to win their bread and to live their lives, there can be no
question that they would be entitled still to the same measure of pro-
tection from violence, and the same free forum for tlie redress of their
grievances as any other aliens.

" So far as the treaties between the United States and China stipu
late for the treatment of the Chinese subjects actually in the United
States as the citizens or subjects of ' the most favored nation ' are treated,
they create no new status for them ; they simply recognize and confirm
a general and existing rule, aijplicable to all aliens alike, for none are
favored above others by domestic law, and none by foreign treaties
unless it be the Chinese themselves in some respects. For, by the third
article of the treaty of ]S^ovember 17, 1880, between the United States
and China, it is provided that :

" 'Article III.

" ' If Chinese laborers, or Chinese of any other class, now either per-
manently or temporarily residing in the territory of the United States,
meet with ill treatment at the hands of any other persons, the Govern-
ment of the United States will exert all its power to devise measures
for their protection, and to secure to them the same rights, privileges,
immunities, and exemptions as may be enjoyed by the citizens or sub-
jects of the most favored nation, and to which they are entitled by
treats.*

472

CHAP. III.] CHINA. [§ 67-

" This article may be held to constitute a special privilege for Chinese
subjects in the United States as compared with othei' aliens, not that
it creates anj' peculiar rights which others do not share, but because in
case of ill treatment of the Chinese in the United States this Govern-
ment is bound to 'exert all its power to devise measures for their pro-
tection' by securing to them the rights to which, equally with any and
all foreigners, they are entitled.

"Whether it is now incumbent upon the United States to amend their
general laws or devise new measures in this regard, 1 do not consider
in the present communication, but confine myself to the particular point
raised by the outrage and massacre at Rock Springs.

" The note of the Chinese minister, and the documents which accom-
pany it, give, as I believe, an unexaggerated statement of the lamenta-
ble incident, and present impressively the regrettable circumstance that
the proceedings, in the name of justice, for the ascertainment of the
crime and fixing the responsibility therefor were a ghastly mockery of
iustice. So long as the Chinese minister, under his instructions, makes
this the basis of an ai)peal to the principles and convictions of mankind,
no exception can be taken ; but when he goes further, and, taking as his
precedent the action of the Chinese Government in past instances where
the lives of American citizens and their property in China have been
endangered, argues a reciprocal obligation on the part of the United
States to indemnify the Chinese subjects who suffered at Eock Springs,
it becomes necessary to meet his argument and to deny, most emphat-
ically, the conclusions he seeks to draw as to the existence of such a
liability, and the right of the Chinese Government to insist upon it.

" I draw the attention of the Congress to the latter part of the note of
the Secretary of State of February 18, 188G, in reply to the Chinese
minister's representations, and to invite especial consideration of the
cogent reasons by which he reaches the conclusion that, whilst the LTnited
States Government is under no obligation, whether by the express terms
of its treaties with China or the principles of international law, to in-
demnify these Chinese subjects for losses caused by such means and
under the admitted circumstances, yet that in view of the palpable and
discreditable failure of the authorities of Wyoming Territory to bring
to justice the guilty parties or to assure to the sufferers an impartial
forum in which to seek and obtain compensation for the losses which
those subjects have incurred by a lack of police protection, and consid-
ering further the entire absence of provocation or contribution on the
part of the victims, the Executive may bejnduced to bring the matter
to the benevolent consideration of the Congress, in order that that body,
in its high discretion, may direct the bounty of the Government in aid
of innocent and peaceful strangers whose maltreatment has brought
discredit upon the country, with the distinct understanding that such
action is in nowise to be held as a precedent, is wholly gratuitous, and

473

§ 67.] INTERVENTION. [CHAP. III.

is resorted to in the spirit of pure generosity toward those who are other-
wise helpless."

President Cleveland, Special Message of Mar. 2, 1886.

" I have the houor to acknowledge the receipt of the very interestiuij
and important communication which you addressed to me on the 30th
of November last, touching the treatment of Chinese subjects in the
United States.

" The subject to which your note relates has already received the
most earnest and careful consideration of the President, in whose annual
message to the houses of Con<*ress in December last you cannot have
failed to note very impressive recommendations fully recognizing the
responsibility of this Government to observe, in letter and in spirit, the
duties of benignity and frieudshii) to which your note refers, as set forth
in the treaties of 1868 and 1880, between the United States and China.
And, although my formal reply to your note has been somewhat delayed,
owing to causes beyond my control and in part painfully personal to
myself, you will doubtless have observed, or at least conjectured, the
influence of your communication in the following reference of the Presi-
dent to the condition and treatment of Chinese subjects resorting to
this country :

" 'In the application of the acts lately passed to execute the treaty of
1880, restrictive of the immigration of Chinese laborers into the United
States, individual cases of hardship have occurred beyond the power of
the Executive to remedy, and calling for judicial determination.

" ' The condition of the Chinese question in the Western States and
Territories is, despite this restrictive legislation , far from being satis-
factory. The recent outbreak in Wyoming Territory, where numbers
of unotfending Chinamen, indisputably within the protection of the
treaties and the law, were murdered by a mob, and the still more recent
threatened outbreak of the same character in Washington Territory, are
fresh in the minds of all, and there is apprehension lest the bitterness
of feeling against the Mongolian race on the Pacific slope may find vent
in similar lawless demonstrations. All the power of this Government
should be exerted to maintain the amplest good faith toward China in
the treatment of these men ; and the inflexible sternness of the law in
bringing the wrong-doer to justice should be insisted upon.

"'Every eflort has been made by this Government to prevent these
violent outbreaks and to aid the representatives of China in their inves-
tigation of these outrages ; and it is but just to say that they are trace-
able to the lawlessness of men not citizens of the United States engaged
in competition with Chinese laborers.

" 'Eace prejudice is the chief factor in originating these disturbances,
and it exists in a large part of our domain, jeopardizing our domestic
peace and the good relationship we strive to maintain with China.'

" The President's unambiguous and frank declarations stated have
474

CHAP, m.] CHINA. [§ 67.

anticipated, for the most part, the tenor of my delayed reply to your
note.

" You and your Government are so well aware of the sincerity with
which this Government professes its desire and intention to carry out
in the fullest good faith all obligations springing from international
comity and inspired by the especial amity which finds expression in
the several treaties between the United States and Chiuii, that it may,
perhaps, be superfluous for me to reiterate assurances of our sorrow and
abhorrence caused by the lawless and cruel outrages of which so many
of your countrymen were unhappily made the victims in September last
at Eock Springs, in the Territory of Wyoming, and which have been
fully and truthfully recited in your note and in the accompanying docu-
ments.

" Let me assure you, however, that I but speak the voice of honest
and true American citizens throughout this country, and of the Govern-
ment founded on their will, when I denounce with feeling and indigna-
tion the bloody- outrages and shocking wrongs which were there inflicted
upon a body of your countrymen. There is nothing to extenuate such
offenses against humanity and law, and not the least of the outrages
upon the good name of the law was the wretched travesty of the forms
of justice by a certain local officer, acting as coroner, and pretending
to give a legal account of the manner in which the victims met their
death.

" It appears from your statements and the reports transmitted in sup-
port thereof — the accuracy of which I do not question — that twenty-
eight of your countrymen were killed outright at Eock Springs, fifteen
were wounded, and many more driven from their homes, while the prop-
erty of Chinese subjects to the value of ui)wards of $147,000 was either
destroyed or pillaged by the rioters.

" My sense of humanity is no less aroused than yours to strong feel-
ings of indignation and commiseration] but, besides this common senti-
ment, I feel with equal poignancy deep mortification that such a blot
should have been cast upon the record of our Government of laws.

" To aid in weighing the responsibility for these occurrences and to
attain a clearer comprehension of the wrong, its origin, its progress, and
its proper remedies, I will ask your attention to a few of the main ad-
mitted facts, as stated by yourself and as disclosed by the investigation,
in which, as you justly say, your official agents were importantly assisted
by the presence of officers of the United States Army specially assigned
for that purpose.

" The region in which this outbreak occurred is not within the borders
of any State of the United States, but is within the limits of Wyoming
Territory. You make the point that this Territory is directly under the
control of the Federal Government, and that the acts of Territorial offi-
cers are in that degree those of the United States in the national capac-
ity, not those of a distinct sovereignty. In this you approximately state

476

§ 67.] INTERVENTION. [CHAP. III.

a broad proposition, but do not accurately give it specific application.
By its enabling and organic law the Territory of Wyoming enjoys local
self-government, with a full equipment of officials in every branch known
to our republican forms, who are invested with full authority to main-
tain law and order and administer justice to all iiihal)itants. This Ter-
ritorial government contains the usual framework of the other republics
which combine to form this Union. It comprises an executive, a legis-
lative, and a judicial branch. In the centers of population this govern-
ment is as competent to discharge its administrative obligations as is
the government of any State, and is responsible in the same way. Re-
cent occurrences at Seattle, in the Territory of Washington, show this.
Blood has been shed there lately under the authority of Territorial offi-
cials in successful defense and assertion of the right of certiain of your
countrymen to peaceable and law-observant residence.

'' The scene of the lamentable occurrences at Rock Springs was, how-
ever, remote from any center of population, and was marked by all the
customary features of a newly and scantily settled locality. It con-
sisted of a scattered assemblage of dwellings near a railway station and
in the vicinity of some coal mines. The population was made up of
men of all races, migratory in their habits ; some engaged as laborers
in mining, while others were employed in furnishing their supplies. Of
formal recognized authority there were few rei)resentatives, and little
or no attempt at organized police. It was, in short, a rude commence-
ment of a community on the outposts of civilization, and, like all such
beginnings, largely dependent for stability and order on the congruity
of the elements of which it was composed.

" To this remote and unprotected region your countrymen voluntarily
resorted in large numbers. The attack upon them, as your note truly
states, was made suddenly by a lawless band of about one hundred and
fifty armed men, who had given no previous intimation of their criminal
intent. These men were discontented mining laborers, who had pre-
viously sought to induce the Chinese to join with them in a concerted
strike for higher wages, and their overtures being rejected, they became
angered on that account. This, I believe, is the only motive for the
assault discernible and alleged in the reported evidence.

"On neither side, among assailants or assailed, was there any repre-
sentative of the Government of China or of the United States or of the
Territory of Wyoming. There was, therefore, as there could be, no offi-
cial insult or wrong. Wbatever occurre d was between private individu-
als wholly devoid of official character. It was, moreover, absolutely'
without national character. The domestic element of an ordinary civil
disturbance was wanting. The assailants, equally with the assailed,
were strangers in our land. In strict truth, the hospitality of a friendly
country, no less than the rights of peaceful sojourners therein, may be
said to have been outraged by a body of aliens, who, being permitted
by the generosity of our laws to enter our borders and roam unchecked
476

CHAP. III.] CHINA. [§67.

and at will throughout its jurisdiction, freely and profitably selecting
their jilaces of abode and finding occupation therein, have abused the
j)rivileges thus accorded to them and committed gross breaches of the
public peace, suddenly and doubtless with the knowledge that nowhere
within summons could any police organization be found in sufficient
force to staj' their criminal hands.

"As you are aware, in the States of the Union, and also in the organ-
ized Territories, and in the District of Columbia, where the Government
of the nation has its Federal seat, the conservation of the public peace
is committed to the local authorities, and crimes of violence involving
the lives and safety of the property of individuals are held to be in vio-
lation of the peace, and in derogation of the local laws and jurisdiction
This violation constitutes the criminality which the police of the com-
munity seeks to prevent by all rational precautions, and which the law
is intended to punish.

" Violent assaults and homicides in all newly-settled countries are
very frequent and in proportion as the social elements are incongruous
and the organization of the police and judiciary is inchoate and imper-
fect.

" The Government of the United States, opening its vast domain so
freely to actual settlers, has extended the scope and power of the Con-
stitution and laws over the Territories, by confiding to their local legis-
latures and government the duty and power of maintaining order, pre-
serving the public peace, and punishing infractions thereof. In this
respect the local authority and responsibility is in practice as self-con-
tained in a Territory- as in a State.

" Moreover, this local authority and responsibility is applied to and
affects all inhabitants alike. Before the law, alien and native are equal.
Your note, however, intimated rather than argues, the existence of
special and peculiar responsibility in respect of the Chinese in our
midst. By argument and analogy you seek to show that a singular
and exceptional obligation rests upon the United States toward China-
men, correspondent and reciprocal to the contractual obligations of
China in respect of citizens of the United States resorting tliither.

"An examination of the treaty stipulations becomes, therefore, most
important towards an understanding of this question as stated by you.
I am, of course, not unaware that your argument is essentially a^ ho7n-
inem; that it appeals to the sense of justice and fair play innate in
the human breast; that it alleges that the golden rule 'to do to others
as they would have others do to them ' is recited approvingly in Article
XXIX of the treaty of 1858 between the two nations ; and that it
advances the assumption that 'if the view' heretofore taken in an
analogous case, 'as to the obligations of the United States to make
indemnity for injuries to private individuals from mob violence, should
be insisted upon and adhered to by' the United States, ' China should,
in due reciprociti/ and international comity, accept and practice the mmc

477

§ 67.] INTERVENTION. [CHAP. III.

principle.^ But, before this ad hominem argument can be duly weighed,
we must know where the conventional argument actually places us, and
the measure of protection and redress they actually and necessarily
contemplate in the respective countries.

" The conventional stipulations between the United States and China,
to which you have referred, are, as you state, and as appears from their
face, in nowise reciprocal. Under the respective system and nature
of the two Governments they would not have been made reciprocal,
nor were they intended to be so. The frankness which animates your
note will, I think, lead you to agree with me, after considering the very
different organizations and policies of the Governments of our respective
countries which find frequent recognition in the terms of the sundry
treaties between them, that the privileges and immunities of Chinese
subjects now within the jurisdiction of the United States are vastly
greater than ever were or are extended to American citizens who, under
the restrictions of the treaties, are allowed to reside and transact busi-
ness in China.

" The several treaties of 1844, 1858, 1868, and 1880 are acts in pari
materia, and no subsequent one of them abrogates those which are
prior in date. There have been successive modifications, extensions, or
substitutions as to special subjects, but always in express revival and
renewal of pre-existing treaties ; and, unless abrogated in express terms
or repealed impliedly by the adoption of new and inconsistent features,
they all remain in force. Upon those jiremises, and passing all the
personal and residential stipulations in review, we find restrictions ex-
pressly recognized throughout all the treaties, which prove the inability
to provide reciprocity, by reason of the totally variant basis on which
the administrative functions and powers of the two countries are con-
ducted.

" Until 1868 no right of immigration of Chinese subjects to the United
States was ever formally extended. None was, perhaps, needed, for,
under our free popular Government, and in the absence of any restrictive
legislation, our territory was and is equally open to all aliens. It was
altogether different in China. That country was closed to alien residence
as by a wall. A specific right had to be conventionally created before
this exclusion could be modified. To certain classes of citizens of the
United States the treaty of 1844 granted carefully restricted rights to
visit and sojourn in China, but in every one of the articles which treats
of transient or permanent right of residence appears the qualification
that it is for purposes of trade.

"Article I applies to our citizens ' resorting to China for the purposes
of commerce.''

"Article III permits Americans to frequent certain specified ports,
' and to reside with their families and trade there.^

"Article IV relates to 'citizens of the United States doing business
at the said' ports.

478

CHAP. III.] CHINA. [§ 67.

"Article V refers to ' citizens of the United States lawfully engaged
in commerce.'' The important Article XIX, in regard to protection,
speaks of ' citizens of the United States in China peaceably attending
to their affairs,^ and by ' their aflairs' we may regard the ' lawful ' com-
merce elsewhere spoken of in the treaty as having been uppermost in
the minds of the negotiators. Not merely was the purpose of their
sojourn restricted, but citizens of the United States could not, under
Article XVII, lawfully transgress certain residential limits. Even
within those limits they were not free to select the sites for their ' houses
and places of business, and also hospitals, churches, and cemeteries.'
The ' merchants ' of the United States were not to unreasonably insist
on particular spots for those objects. Their residence was expressly
conditioned on its being acceptable to the native inhabitants. The
treaty says, and I am sure you will recognize the force of this provision :

" 'The local authorities of the two Governments shall select in concert
the sites for the foregoing object, having due regard to the feelings of the
people in the location thereof

"And of that found at the close of the same Article XYII :

"'And in order to the preservation of the public peace, the local officers
of the Government at each of the five ports shall, in concert with the
consuls, define the limits beyond which it shall not be lawful for citizens
of the United States to go.''

" The impracticability of maintaining efficient police protection in
many portions of every widely-extended domain was recognized by the
Chinese Government when they expressly guarded against liability in
the closing paragraph of Article XXIV of the treaty of 1844, as follows :

" 'But if, by reason of the extent of territory and numerous popula-
tion of China, it should in anj'^ case happen that the robbers cannot be
apprehended or the property only in part recovered, then the law will
take its course in regard to the local authorities, but the Chinese Gov
erument will not make indemnity for the goods lost'

"Article XII of the treaty of 1858 is a substantial reaffirmation of these
conditions. And it is to be noted that this treaty of 1858, while re-en-
acting many of the provisions of that of 1844, and passing over others,
in no place intimates any enlargement of the residential class of unoffi-
cial American citizens to include others than merchants and their fami-
lies within the narrow limits aforesaid. Ten years later we find the
Burlingame treaty opening with the significant declaration that the
object of preceding treaties has been to give aliens certain restricted
privileges of resort and residence in particular localities 'for purposes
of trade.' Article V appears to extend the purposes of residence and
resort by including 'curiosity' as a motive; but even this extension is
incidental to the enunciation of a principle, so that laws may be passed,
not to guarantee 'free migration and emigration' without limit, but to
prohibit involuntary emigration — in other words, to suppress the labor

and coolie traffic.

479

J 67.] INTERVENTION. [CHAP. III.

"Article VII permits Americans to establish schools in China, and by
implication includes American teachers in the classes admitted to re-
stricted residence. In this, as in the other treaties, there is nothing to
offset the idea of continued restriction, for Article VI, which gives to
citizens of the United States visiting or residing in China ' the same
privileges, immunities, or exemptions in respect to travel or residence
as may there be enjoyed by the citizens or subjects of the most favored
liation,' neither creates nor extends any right of alien sojourn, but rather
confirms the announced determination of China to reserve all such rights
not expressly granted.

" To sum up, as the treaties stand, American citizens not of diplo-
riiatic or consular office may resort to China for trade, for curiosity, or
as teachers, and then only to certain carefully limited localities, ' hav-
ing clue regard to the feelings of the people in the location thereof.' If
the citizens or subjects of any other power should be granted other or
greater privileges, then the citizens of the United States will have equal
treatment.

"On the other hand, Chinese subjects were at all times free between
1844 and 1868 to come to the United States and travel or sojourn
therein, pursuing whatever lawful occupation they might see fit to en-
gage in, without the need of treaty guarantee. The sixth article of the
Burlingame treaty created noprivilege in their behalf; it simply recorded
an existing fact; for the Chinese were then as free to visit and sojourn
in the United States as any other aliens were, and no law of regulation
or inhibition was upon our statute books.

" There was, therefore, in all these years no reciprocity of treatment
of the citizens or subjects of the one country within the jurisdiction of
the other. There could not be, for the Chinese Government so restricted
and hedged about its conceded and carefully limited privileges as to
make reciprocity impossible on the part of the United States, unless
taking the form of retaliation, which our system of laws makes imprac
ticable.

" The treaty of 1880 is absolutely unilateral. It conveys no hint of
rfeciprocity. Its second article gives to Chinese teachers, students,
merchants, and those actuated by motives of curiosity, and also to the
Chinese laborers then (1880) in the United States, the right to *go and
come of their own free will and accord,' and, in addition to this, the
same treatment as the citizens or subjects of the most favored nation.
I refrain from asking you to point out to me any responsive position in
any of our treaties with China which guarantees to American teachers,
students, merchants, curiosity seekers, and laborers the right to ' go and
come of their own free will and accord' throughout the length and
breadth of China, 'without regard to the feelings of the people' in the
localities whither they may resort. I likewise refrain from invoking the
argumentum ad hominem, as yon hiive done, and from inquiring whether,
480

CHAP, III.] CHINA. [§ 67.

in thus restriclinff the resort and residence of aliens, China has 'done
as she would be done by.' I am content to assume that these restric-
tions are of the nature of the case, and that China has soufjht to confine
her duty in respect of aliens within such limits as might be convenient
and practicable for its exercise, but always granting no more privilege
than she chooses to grant, and conceding none whatever as of right, but
only as matter of convention. And (although the point is not directly
allied to the object-matter) you will permit me to remark that I find a
pertinent illustration of the subjection of all privileges of alien sojourn
in China to the mere volition of its Government, rather than to princi-
ples of international usage or comity, in the very narrow rights of visit
and sojourn accorded by treaties even to the minister of the United
States in the Chinese capital.

" Passing from the question of reciprocity, whether in its sentimental
or contractual aspects, to the question of the actual guarantee stipulated
by the United States to Chinese of all classes, including laborers within
their jurisdiction, and of the responsibilities of this Government in the
matter, we find that in the treaty of 1868, by its sixth article, the United
States, for the first time, established as a treaty right the theretofore
consuetudinary privilege of emigration of Chinese to this country.
That article says :

*' ' Chinese subjects, visiting or residing in the United States, shall
enjoy the same privileges, immunities, and exemptions in respect to
travel or residence as may there be enjoyed by the citizens or subjects
of the most favored nation.'

" This is renewed, with definition and limitation of the particular
classes of Chinese to which it is applicable, in the second article of the
treaty of 1880.

" What is the substantial and full intent and meaning of these pro-
visions as laid down in 1868, and again with special definition in 1880 1

" What ' most favored nation ' is to be taken as a test and for the
purpose of comparing the rights of its citizens or subjects in the
United States with those of China ?

" To constitute a special favor between nations it must exist in virtue
of treaty or law, and be extended in terms to a particular nation as a
nation. Applying this test, the citizens or subjects of no nation (unless
it be those of China) have any special favor in the way of personal treat-
ment shown them in the United States. All are treated alike, the sub-
jects of the most powerful nations equally with others. An Englishman,
a Frenchman, a German, a Eussian, is neither more nor less favored
than one of any other nationality.

" Tried by this test, will it be denied that tlic public and local laws

throughout the United States make no distinction or discrimination

unfavorable to any man by reason of his Chinese nationality, except

only those Federal laws regulating, limiting, and suspending Chinese

S. Mis. 162— VOL. I M 481

§ 67.] INTERVENTION. [CHAP. III.

immigratiou which have been enacted in conformity with the express
provisions of the treaty of 1880?

" What are the duties of the Government of the United States under
that treaty toward Chinese subjects within their jurisdiction ?

'' TheChinese subjects now in the United States are certainly accorded
all the rights, privileges, immunities, and exemptions which pertain to
the citizens and subjects of the most favored nation, as is provided in
the second article of the treaty. They are suffered to travel at will all
over the United States, to engage in any lawful occupation, and to reside
in any quarter which they may select, and there is no avenue to public
justice or protection for their lives, their commercial contracts, or their
l^roperty in any of its forms which is not equally open to them as to the
citizens of our own country.

"The same laws are administered by the same tribunals to Chinese
subjects as to American citizens, save in one respect, wherein the
Chinese alien is the more favored, since he has the right of option in
selecting either a State or a Federal tribunal for the trial of his rights,
which, in many cases is denied for residential causes to our own citizens ;
and he may even at will remove his cause from a State to a Federal
court.

"Thus, I find in the public i)ress the announcement that Wing Hing,
on behalf of himself and others, Chinese subjects, has lately brought
suit in the United States circuit court to recover $132,000 from the city
of Eureka, Humboldt County, California, for loss of property by the
action of a mob in February of last year. A citizen of that State would
have been compelled to resort to a State tribunal, without appeal beyond
the jurisdiction of the State, whereas the Chinese iDlaintift' in question
can carry his case on appeal to the Supreme Court at Washington, thus
divesting his rights from all adverse chance of local prejudice.

•'I think you will thus recognize, in the same frank spirit as animates
your note, that none of the protection intended by the law for our own
citizens is withheld from your countrymen, but that, on the contrary,
they possess noteworthy advantages in the choice of forum or the
removal of their cause, of which many of our citizens are deprived.

" The provision of an organized and in some cases privileged forum
excludes the idea of direct recourse by the alien to other means of
obtaining justice or redress. Your note argues that direct recourse to
administrative or executive settlement is open to citizens of the United
States in China, and instances are cited to show this. Surely, this rather
proves that to the alien in China no such judicial forum is secured as to
aliens in the United States.

"The extraterritorial tribunals established for their own citizens or
subjects by all the powers in treaty relations with China are, in princi-
ple and from the reason of the thing, incompetent to adjudicate ques-
tions touching the liability of China to aliens. In default of Chinese
tribunals admittedly competent to take cognizance of the causes of for-
i82

CHAP. III.] CHINA. [§ 67.

eigners, what alternative remains besides denial of justice or resort to
diplomatic settlement ?

" The system of Government which prevails in the United States, and
which their public written Constitution has made well known to the
Government of China at the time of our entering into treaties with that
country, creates several departments, distinct in function, yet all tend-
ing to secure justice and to maintain law and order. These three dis-
tributive divisions of the sovereign powers of the American people are
entirely independent of each other, and the fundamental principle of
their several action is the non.-interference of their respective functions.
Thus, the duty of the Executive is to carry into force the laws enacted
by the legislature, and his only warrant of authority to act in any case
must be found in the Constitution, or in the laws passed in pursuance
thereof by the co-ordinate legislative branch.

"To the judicial branch is committed the administration of remedies
for all wrongs, and its courts are open, with every aid they can devise,
to secure publicity and impartiality in the administration of justice to
every human being found within their jurisdiction. Providing thus a
remedy for all individuals, whether many or few, rich or poor, and of
whatever age, sex, race, or nationality, the question of liability for
reparation or indemnity for losses to individuals, occurring in any way,
must be settled by the judgments of the judicial branch, unless the act
complained of has been committed under ofl&cial authority in pursuance
of governmental orders to that end.

"The Government of the United States recognizes in the fullest sense
the honorable obligation of its treaty stipulations, the duties of inter-
national amity, and the potentiality of justice and equity, not trammeled
by technical rulings nor limited by statute. But among such obliga-
tions are not the reparation of injuries or the satisfaction by indemnity
of wrongs inflicted by individuals upon other individuals in violation of
the law of the land.

"Such remedies must be pursued in the proper quarter and through
the avenues of justice marked out for the reparation of such wrongs.

"The doctrine of the non-liability of the United States for the acts
of individuals committed in violation of its laws is clear as to acts of
its own citizens, and a fortiori in respect to aliens who abuse the priv-
ilege accorded them of residence in our midst by breaking the public
peace and infringing upon the rights of others, and it has been cor-
rectly and authoritatively laid down by my predecessors in oflBce, to
whose declarations iu that behalf your note refers. To that doctrine
the course of this Government furnishes no exception. And in this
connection I venture to say that you labor under a misapprehension
in citing as an exception the action of the United States, iu 1850, in
respect of the violence committed upon the Spanish consulate at ^S'ew
Orleans by a mob of irresponsible persons unknown to the Govern-

483

§ 67.] INTERVENTION. [CHAP. III.

ment, and with which no officer or agent of the United States was
allied.

"Nothing can be clearer than the enunciation of the doctrine of Gov-
ernment nonliability on that occasion. "While denouncing such out-
rages as disgraceful, and in criminal violation of law and order, it was
emphatically denied that the acts in question created any obligation on
the part of the United States, arising out of the good faith of nations
toward each other, for the losses thus occasioned by and to individuals.
Neither is there a parity between the Spanish incident of 1850 and the
recent riot and massacre of the Chinese at Eock Springs. The essen-
tial feature of the first is wholly wanting in the second. The emblem
of Spanish nationality had suffered an affront in a city of the United
States. The special immunity attaching to the Spanish consular rep-
resentative had been impaired and he subjected to personal indignity.
The incident occurred at a time when the Spanish Government had
just shown its regard for and good-will toward the United States in
pardoning certain American citizens who had participated in a hostile
invasion of Cuba, and had incurred the condemnation of the authorities
of that country. Recognizing the merciful action of the Queen of Spain
in this regard, and as a responsive act of generosity and friendship
tending toward good relationship, the President, while expressly deny-
ing the principle of national liability, recommended to Congress the
appropriation of certain moneys to be paid to private individuals on
account of the damages caused by riots at New Orleans and Key West,
and to the Spanish consul at New Orleans a special indemnity as an
official of Spain.

"In one thing, however, the Spanish riots of 1850 and the Rock
Springs massacre of 1884 are similar : both grew out of alien animosi-
ties transplanted to our shores. The acts of the mob at Key West and
New Orleans were largely, perhaps wholly, due to the resentment of
disaffected Spanish subjects colonized at those points who were ready
to abuse the sacred law of hospitality and make the land of their asylum
the theater of attacks on the recognized sovereignty of Spain. At
Rock Springs, as I have shown, the conflict sprang from labor ques-
tions between aliens. But this has.no bearing on the question of the
indemnity accorded to Spain, which was, as you, indeed, candidly'
admit in your note, *a voluntary act of good-will above and beyond
the strict authorization of domestic law,' and, I may add, of interna-
tional law also.

"A measure of international obligation rests on the United States
under the third article of the treaty of 1880, which, in the event Chi-
nese laborers or others in the United States ' meet with ill-treatment
at the hands of other persons,' requires the Government of the United
States to 'exert all its power' to devise measures for their protection,
and to secure to them the same ' rights, privileges, immunities, and
484

CHAP. III.] CHINA [§ U7.

exemptions as may be enjoyed by the citizens or subjects of the most
favored nation, and to which they are entitled by treaty.'

'•That the power of the National Government is promptly and cfli-
ciently exercised whenever occasion unhappily arises therefor you have
justly acknowledged and it has been abundantly shown. The condi-
tions under which this power may be applied are not always clear and
are sometimes very difficult. Causes growing out of the peculiar char-
acteristics and habits of the Chinese immigrants have induced them to
segregate themselves from the rest of the residents and citizens of the
United States, and to refuse to mingle with the mass of poi)ulation as
do the members of other nationalities. As a consequence race prejudice
has been more excited against them, notably among aliens of other
nationalities who are more directly brought into comj)etition with the
Chinese in those ruder fields of merely manual toil wherein our skilled
native labor finds it uui)rofitable to engage. As the conflicting elements
are less law-abiding and more ignorant, the clash of their opposed inter-
ests is the fiercer. The question of labor competition is one that, in the
present condition of the world's history, is causing convulsion in almost
every quarter of the civilized world, and the United States, with all
their breadth of territory and the advantages of local self-government
by and for the people, are by no means exempt from the disorders to
which the struggle for bread gives rise.

" Moreover, the Chinese laborers voluntarily carry this principle of
isolation and segregation into remote regions where law and authority are
well known to be feeblest, and where conflicts of labor and prejudices
of race may be precipitated on the slightest pretext and carried with-
out check to limits beyond those possible where the powers of law may
be better organized.

" No measures can be devised to meet the problem which do not take
this state of things into account, nor can they be effective if they do
not contemplate the exercise of authority where it is competent to
afford protection, for these measures have only for their object to secure
to the Chinese the same rights as other foreigners of the most favored
nation enjoy, not superior or special rights. For Chinese labor is not
alone repugnant to the local communities; from many quarters of the
land comes the same cry — the conflict of ditterent alien laborers and the
oppression of the weaker by the stronger. There can and should be no
discrimination in applying punitive measures to all infractions of law.
And so, too, with preventive measures. What will protect a Hungarian
or Italian contract laborer in Pennsylvania, or a Swedish 'non union'
man in Ohio, is equally applicable to a Chinaman on the Pacific coast.

" I have traversed somewhat broader ground than is perhaps re-
quired by the propositions of your note of November 30, but I do so
because your later note of February 15 appears to enlarge the area of
discussion.

485

§ 67.] INTERVENTION. [CHAP. III.

" Eeverting, however, to j^our appeal of Kovember 30, which I under-
stand to be a direct application to the sense of equity and justice of the
United States for relief for the unfortunate victims of the carnage and
excesses of the mob at Rock Springs, I am compelled to state most dis-
tinctly that I should fail in my duty as representing the well-founded
principles upon which rests the relation of this Government to its citi-
zens, as well as to those who are not its citizens and yet are permitted
to come and go freely within its jurisdiction, did I not deny emphat-
ically all liability to indemnify individuals, of whatever race or country,
for loss growing out of violations of our public law, and declare with
equal emjihasis that just and ami)le opportunity is given to all who
suffer wrong and seek reparation through the channels of justice as con-
ducted by the judicial branch of our Government.

" Yet I am frank to say that the circumstances of the case now under
consideration contain features which I am disposed to believe may in-
duce the President to recommend to the Congress, not as under obliga-
tion of treaty or principle of international law, but solely from a senti-
ment of generosity and pity to an innocent and unfortunate body of
men, subjects of a friendly power, who, being peaceably employed
within our jurisdiction, were so shockingly outraged; that in view of
the gross and shameful failure of the police authorities at Eock Springs,
in Wyoming Territory, to keep the peace, or even to attempt to keep
the peace, or to make proper efforts to uphold the law or punish the
criminals, or make compensation for the loss of proi)erty pillaged or
destroyed, it may reasonably be a subject for the benevolent considera-
tion of Congress whether, with the distinct understanding that no
precedent is thereby created, or liability for want of proper enforcement
of police jurisdiction in the Territories, they will net, ex gratia, grant
pecuniary relief to the sufferers in the case now before us to the extent
of the value of the property of which they were so outrageously deprived,
to the grave discredit of republican institutions.

" I trust you will recognize in what I have herein suggested the desire
of the United States to carry into eff'ect the ^golden rule' recited in the
treaty to which you have made reference, and that in such action you
will perceive our wish and purpose to conform and perpetuate the friend-
ship and comity which, I trust, may long exist between our respective
countries. You will, I am sure, agree that in good faith, and in com-
pliance with their obligations, the Government of the United States is
strenuously asserting its power to secure the protection of your coun-
trymen within its jurisdiction."

Mr. Bayard, Sec. of State, to Mr. Cheng Tsao Ju, Feb. 18, 1886. MSS. Notes,
China. House Ex. Doc. 102, 49th Cong., 1st sess.

" I transmit herewith for the consideration of Congress, with a view
to appropriate legislation in the premises, a report of the Secretary of
486

CHAP. III.] CHINA. [§ 67.

State, with certain correspondence, touching the treaty right of Chinese
subjects other than laborers ' to go and come of their own free will and
accord.'

" In my annual message of the 8th of December last I said:

"These cases of individual hardship are due to the ambiguous and
defective provisions of the acts of Congress approved, respectively, on
the 6th May, 1882, and 5th July, 1884. The hardship has in some
cases been remedied by the action of the courts. In other cases, how-
ever, where the phraseology of the statutes has appeared to be con-
clusive against any discretion on the part of the officers charged with
the execution of the law, Chinese persons expressly entitled to free ad-
mission under the treaty have been refused a landing and sent back to
the country whence they came, without being afforded any opportunity
to show in the courts or otherwise their right to the privilege of free
ingress and egress which it was the purpose of the treaty to secure.

" In the language of one of the judicial determinations of the Supreme
Court of the United States to which I have referred, ' the supposition
should not be indulged that Congress, while professing to faithfully
execute the treaty stipulations, and recognizing the fact that they secure
to a certain class the right to go from and come to the United States,
intended to make its protection depend upon the performance of con-
ditions which it was physically impossible to perform.' (U. S. K., 1V2,
page 554, Chew Heong v. U. S.)

"The act of July 5, 1884, imposes such an impossible condition in not
providing for the admission, under proper certificate, of Chinese trav-
elers of the exempted classes in the cases most likely to arise in ordi-
nary commercial intercourse.

" The treaty provisions governing the case are as follows :

" 'Article I. * * * The limitation or suspension shall be reason-
able, and shall apply only to Chinese who may go to the United States
as laborers, other classes not being included in the limitations. • » •

" 'Art. II. Chinese subjects, whether proceeding to the United States
as teachers, students, merchants, or from curiosity, together with their
body and household servants, * * * shall be allowed to go and
come of their ow n free will and accord, and shall be accorded all the
rights, privileges, immunities, and exemptions which are accorded to
the citizens and subjects of the most favored nation.'

" Section 6 of the amended Chinese immigration act of 1884 i)urports
to secure this treaty right to the exempted classes named by means of
prescribed certificates of their status, which certificates shall be the
prima facie and the sole permissible evidence to establish a right of entry

487

§ 67.] . INTERVENTION. [CHAP. III.

into the United States. But it piovides in terms for the issuance of
certificates in two cases only:

(a) Oliiuc'se subjects departing from a port of China; and

(6) Chinese persons (i. e., of the Chinese race) who may at the time
be subjects of some foreign Government other than China, and who may
depart for the United States from the ports of such other foreign Gov-
ernment.

"A statute is certainly most unusual which, purporting to execute the
provisions of a treaty with China in respect of Chinese subjects, enacts
strict formalities as regards the subjects of other Governments than
that of China.

" It is sufficient that I should call the earnest attention of Congress
to the circumstance that the statute makes no provision whatever for
the somewhat numerous class of Chinese persons who, retaining their
Chinese subjection in some countries other than China, desire to come
from such countries to the United States.

"Chinese merchants have trading operations of magnitude through-
out the world. They do not become citizens or subjects of the country
where they may temporarily reside and trade ; thej' continue to be sub-
jects of China, and to them the explicit exemption of the treaty applies.
Yet, if such a Chinese subject, the head of a mercantile house at Hong-
Kong or Yokohama or Honolulu or Havana or Colon, desires to come
from any of these i)laces to the United States he is met with the re-
quirement that he must produce a certificate, in prescribed form and in
the English tongue, issued by the Chinese Government. If there be
at the foreign place of his residence no representative of the Chinese
Government competent to issue a certificate in the prescribed form, he
can obtain none, and is under the provisions of the present law unjustly
debarred from entry into the United States. His usual Chinese pass-
port will not suffice, for it is not in the form which the act prescribes
shall be the sole permissible evidence of his right to land. And he
can obtain no such certificate from the Government of his place of resi-
dence, because he is not a subject or citizen thereof, ' at the time,' or at
any time.

" There being, therefore, no statutory provision prescribing the terms
upon which Chinese persons, resident in foreign countries but not sub-
jects or citizens of such countries, may prove their status and rights as
members of the exempted classes in the absence of a Chinese represent-
ative in such country, the Secretary of the Treasury, in whom the ex-
ecution of the act of July 5, 1884, was vested, undertook to remedy the
omission by directing the revenue officers to recognize as lawful certifi-
cates those issued in favor of Chinese subjects by the Chinese consular
and diplomatic officers at the foreign port of departure when visaed by
the United States representative thereat. This appears to be a just
application of the spirit of the law, although enlarging its letter, and in
adopting this rule he was controlled by the authority of high judicial
488

CHAP, III.] CHINA. [5 67.

decisions as to what evidence is necessary to establish the fact that an
individual Chinaman belongs to the exempted class.

" He, however, went beyond the spirit of the act, and the judicial
decisions, by providing, in a circular dated January 14, 1885, for the
original issuance of such a certificate by the United States consular
officer at the port of dei)arture in the absence of a Chineso diplomatic
or consular representative thereat. For it is clear that the act of Con-
gress contemplated the intervention of the United States consul only
in a supervisory capacity, his function being to check the i)roceeding
and see that no abuse of the privilege followed. The power or duty of
original certification is wholly distinct from that supervisory function.
It either dispenses with the foreign certificate altogether, leaving the
consular visa to stand alone and sufficient, or else it combines in one
official act the distinct functions of certification and verification of the
fact certified.

"The official character attaching to the consular certification con-
templated by the unamended circular of January 14, 1885, is to be borne
in mind. It is not merely prima facie evidence of the status of the
bearer, such as the courts may admit in their discretion ; it was pre-
scribed as an official attestation, on the strength of which the customs
officers at the port of entry were to admit the bearer without further
adjudication of his status unless question should arise as to the truth
of the certificate itself.

" It became, therefore, necessary to amend the circular of January
14, 1885, and' this was done on the 13th of June following, by striking
out the clause prescribing original certification of status by the United
States consuls. The effect of this Amendment is to deprive any certifi-
cate the United States consuls may issue of the value it purported to
possess, as sole permissible evidence under the statute when its issu-
ance was prescribed by Treasury regulations. There is, however,
nothing to prevent consuls giving certificates of facts within their
knowledge, to be received as evidence in the absence of statutory au-
thentication.

" The complaint of the Chinese minister, in his note of March 24, 188G,
is that the Chinese merchant. Lay Sang, of the house of King Lee &
Co., of San Francisco, having arrived at San Francisco from Hong-
Kong, and exhibited a certificate of the United States consul at Hong-
Kong as to his status as a merchant, and consequently exempt under
the treaty, was refused permission to land, and was sent back to Hong-
Kong by the steamer which brought him. While the certificate he bore
was doubtless insufficient under the present law, it is to be remembered
that there is at Hong-Kong no representative of the Government of
China competent or authorized to issue the certificate required by the
statute. The intent of Congress to legislate in execution of the treaty
is thus defeated by a prohibition directly contrary to the treaty ; and

489

§ 67.] INTERVENTION. [CHAP. in.

conditions are exacted which, in the words of the Supreme Conrt here-
inbefore quoted, ' it was physically impossible to perform.'

" This anomalous feature of the act should be reformed as speedily
as possible, in order that the occurrence of such cases may be avoided,
and the imputation removed which would otherwise rest upon the good
faith of the United States in the execution of their solemn treaty en-
gagements.'-

• President Cleveland, Special Message of Apr. 6, 1886.

The fourth section of the act of Congress, approved May 6, 1882,
chapter 126, as amended by the act of July 5, 1884, chapter 120, pre-
scribing the certificate which shall be produced by a Chinese laborer as
the "only evidence permissible to establish his right of re-entry " into
the United States, is not applicable to Chinese laborers who, residing
in this country at the date of the treaty of November 17, 1880, departed
by sea before May 6, 1882, and remained out of the United States until
after July 5, 1884.

Chew Heong v. U. S., 112 U. S., 536.

In virtue of the treaty between the United States and China of 1844,
all citizens of the United States in China enjoy complete rights of ex-
territoriality, and are answerable to no authority but that of the United
States. The whole subject examined.

7 Op., 495, Gushing (1855).

The following Congressional documents, cited from the list of papers concerning
foreign relations attached to the register of the Department of State, bear on the
topics discussed in this section :

China, famine in. Eelief asked by citizens of New York and Boston. Feb. 8, 1878.

House Mis. Doc. 25, 45th Cong., 2d sess.

Publication of order for service of summons on absent defendents in consular

courts. President's message. Mar. 22, 1882. House Ex. Doc. 213, 47th Cong.,

Ist sess.

Slavery in. President's message. Mar. 11, 1880. House Ex. Doc. 60, 4Gth Cong.,

2d sess.
Rent of consular premises in. President's message, transmitting report of the
Sec. of State. June 19, 1884. House Ex. Doc. 171, 48th Cong., Ist sess.
Chinese immigration :

Restriction of. Resolution favoring such a change in the treaty with China of
1868 as will prev^t the great influx of Chinese into the United States. Apr.
20, 1876. Senate Mis. Doc. 93, 44th Cong., Ist. sess.
Character, extent, and effect of, in the United States. Report of Joint Special
Committee as to, with evidence taken. Feb. 27, 1877. Senate Eep. 689, 44th
Cong., 2d sess.
Address upon the social, moral, and political effect of, prepared by a committee
of the senate of California. Nov. 7, 1877. House Mis. Doc. 9,45th Cong., 1st
sess.
View of Oliver P. Morton. Jan. 17, 1878. Senate Mis, Doc. 20, 45th Cong., 2d sess.
Resolution of California in favor of modification of treaty. Feb. 4, 1878. House

Mis. Doc. 20, 45th Cong., 2d sess.
Views of Joseph C. G. Kennedy. Feb. 25, 1878. Senate Mis. Doc. 36, 45th Cong.,
2d sess.

480

CHAP. III.] JAPAN. [^ 68.

Report iu favor of negotiating with Cbina and Groat Britain to rentrict. Feb.

2:j, 1H78, House. Rep. 240, 45th Cong., '2d sess.
Resolution in favor of the modification of the treaty. May 7, 1878. Senate Mis. Doc.

02, 4r)th Cong., 2d sess.
Report of Committee on Education and Labor. Jan. 14. 1879. House Rep. 62, 45th

Cong., 3d sess.
Report adverse to taking action on certain memorials. Feb. 18, 1879. Honse Rep.

Ill, 45th Cong., 3d sess.
Veto of the bill. Message of President. Mar. 1, 1879. House Ex. Doc. 102, 45th

Cong., 3d sess.
Causes of general depression in labor and business. Dec. 10, 1879. House Mits.

Doc. 5, 46th Cong., 2d sess.
Amendments to a pending bill. Mar. 10, 1880. House Rep. 519, 46th Cong., 2d

sess.
Report of the Select Committee on the Causes <>f the Present Depression of Labor.

Mar. 19, 1880. House Rep. .572, 46th Cong.. 2d sess.
Character of the instructious given to United States minister to China on subject.

President's message. Apr. 12, 1880. House Ex. Doc. 70, 46th Cong., 2d sess.
Report recommending suspension of, for twenty-five years. Jan. 26, 1882. House

Rep. 67, 47th Cong., 1st sess.
Veto of Senate bill 71. President's message. Apr. 4, 1882. Senate Ex. Doc. 148,

47th Cong., 1st sess.
Minority report.. Discretion as to number of years to suspeiid, lies with this Gov-
ernment. Apr. 14, 18'^2. House Rep. 1017, part. 2 (part 1 not printed), 47th

Cong., 1st sess.
Report of George F. Seward, minister to China. President's message. May 15,

1882. Senate Ex. Doc. 175, 47th Cong., 1st sess.
Letter from the Secretary of the Treasury relating to the enforcement of the "Act

to execute certain treaty stipulations relating to Chinese " (with map). Jan.

18, 1884. Senate Ex. Doc. 62, 48th Cong., 1st sess.
Majority and minority reports on the bill to amend the act approved May 6, 1882.

Mar. 4, 1884. House Rep. 014, 48th Cong., 1st sess.
Chinese indemnity fund. Report in favor of returning it to China. Feb. 21, 1879.

House Rep. 113, 45th Cong., 3d sess.
Amendment to the bill providing for the return of the money to China. Apr. 16,

1880. House Rep. 1124, 46th Cong., 2d sess.
Report in favor of returning it to China. Mar. 22, 1884. House Rep. 970, 48th

Cong., 1st sess.

As to transit of Chinese in United States, see Mr. Bayard to Mr. Morrison, Mar.

30, 1886; see Mr. Bayard to Mr. Fairchild, Mar. 31, 1886. MSS. Dom. Let.

An article on China and international law will be found in Revue de Droit Int.

for 1885, No. &, 504.

(12) Japan.
§ 68.

'< Your dispatch of May 8 (No. 20) has been received, together with
the letter mentioued therein, written by the Tycoon of Japan to the
President, and the letter from the ministers of foreign affairs addressed
to myself.

"All these papers relate to a proposition of the Japanese Government
that the opening of the cities of Tedo and Osacca and the harbors of
Hiogo and Keegata, as stipulated in our existing treaty, shall be post-
491

§ 68.] INTERVENTION. [CHAP. III.

poned. Your own couusel, as given iu your dispatch, is that discre-
tionary power be given to the diplomatic agent of the United States to
act in concert with his colleagues, the representatives of other powers
standing in relations towards Japan similar to those of the United
States.

" The course suggested is, as you doubtless were aware, different from
what has been contemplated by the President. He holds, however, your
ability and discretion in high consideration, and therefore care will be
taken to review the subject fully, upon consultation, if possible, with
the representatives here of the other powers concerned. As soon as
the subject shall have been thus considered, you will receive a definitive
communication in relation to it.

" In the mean time you will inform the Tycoon and the ministers for
foreign affairs that their letters have been received and taken into con-
sideration, with a due desire to establish the intercourse between the
United States and Japan on the best and surest foundations."

Mr. Seward, Sec. of State, to Mr. Harris, July 23, 18fil. MSS. Inst., Japan;
Dip. Corr., 1861.

" I recur again- to your dispatch of the Ist of August, 1860 (No. 26).

" In that paper you recommended a postponement for another year of
the exercise of the right of American citizens to reside in the city of
Yedo for the purpose of trade after the 1st of January next, saved to
the United States by a clause in the third article of the treaty of July
29, 1858.

" In my dispatch to you of the 16th May last (No. 15), I stated that I
had then addressed a note iu relation thereto to the minister of Prussia
in the United States, of which a copy was sent to you, and also that a
similar note had been addressed to the ministers of Great Britain,
France. Russia, and Holland, and that when replies to those communi-
cations should have been received by the Department, no time would be
lost in acquainting yon with their contents.

" The burden of the circular note thus addressed to the ministers of
Great Britain, Prance, Prussia, Russia, and Holland, was that the Pres-
ident might, perhaps, have yielded to your suggestion if the circum-
stances which surround the subject had remained unchanged ; but we
had learned bj' recent disi)atches that Mr. Heusken, secretary of the
American legation at Yedo, was, on the night of the 15th of January
last, waylaid and assassinated in the streets of that city without any
other cause or provocation than the fact that he was a foreigner.

" The Japanese Government had made no satisfactory explanation of
this great violation of the rights of the United States, and, on the other
hand, had virtually confessed its inability to bring the offenders to pun-
ishment.

" It was argued by me in the aforesaid notes that the Japanese Gov-
ernment would infer that we are unwilling or unable to vindicate our
492

CHAP. III.] JAPAN. [§ 68.

rights, if, leaving that transaction unpunished and unexplained, we
should frustrate the effect of the treaty stipulation for the opening of
the city of Yedo.

" The President was, for this reason, of opinion that no postponement
of the opening of the city of Yedo ought to be conceded. He thought,
however, that some demonstration, which would render the residence
of foreigners in Yedo safe, ought to be made, and that the other powers
consulted would probably be induced to co-operate in such a demon-
stration, because their representatives are equally exposed there with
our own. The President therefore proposed that those powers should
announce to the Government of Japan their willingness and their pur-
pose to make common cause and co-operate with this Government in
exacting satisfaction, if the Japanese Government should not at once
put forth all possible effort to secure the punishment of the assassins
of Mr. Heusken, and also in making requisitions with signal vigor if
any insult or injury should be committed against any foreigner residing
in Yedo, after the opening of the city in January next, according to the
treaty.

" The ministers addressed, as I have reason to know, promptly sub-
mitted these suggestions to their respective Governments, together
with a form of a convention for currying them into effect. This pro-
jected convention contemjilated the disi)atch of a fleet of steamers
adequate to impress the Japanese Government with the ability and the
determination of the states engaged to secure a performance of its
treaty stipulations.

"Subsequently to these proceedings, and while no answers had yet
been received from the Governments consulted, your dispatch (So. 20)
of the date of May 8, 1861, was received, accompanied by a letter ad-
dressed by his Majesty the Tycoon to the President of the United
States, and also a letter to myself, written by the Japanese ministers
of foreign affairs.

" Those letters expressed the desire of the Government of Japan that
the opening of the cities of Yedo and Osacca, and the harbors of Hiogo
and Neegata, should be postponed for the reasons more specifically set
forth in the latter communication. These reasons are, in substance,
that the opening of the commerce of Japan to the western nations has
had immediate results very different from what were anticipated. The
prices of articles of general consumption are daily advancing, owing to
the extensive exportation, while but little is imported, and the i)eople
of the humble class, not being able to supply their wants, as heretofore,
attribute this to foreign trade. Even higher and wealthier classes, we
are told, are generally not favorably disposed towards commerce, so
that soon there may be those who will condemn tbe abrogation of the
prohibition of former times and desire the re-establishment of the an-
cient law. We are informed also that these results, following imme-
diately upon the radical change of policy of the Government, have

493

§ 68.] INTERVENTION. [CHAP. III.

produced a very general uneasiness, which is increased by referring to
the stipulations in the treaties for the opening of the ports of Hiogo
and Neegata and the freedom of trado at Yedo and Osacca, in view of
the approach of the time when those franchises will be due by the eflect
of the treaties with the United States, Great Britain, France, Prussia,
Russia, and Holland. We are informed that it would be a matter of
great difficulty for the Government to exert its power and authority for
the purpose of demonstrating the benefits to be realized at some future
day, and thus causing its subjects to submit to the present uneasiness
for some time longer. In reviewing the subject in your dispatch (No. 20)
you observe that you have seen no reason to change your own view of
the expediency of consenting to a postponement of the opening of the
city of Yedo.

" You remark, also, that Osacca, being in the Tieji or Heavenly district,
where the Mikado or spiritual ruler of Japan resides, it is probable a
residence of foreigners there would be regarded with dislike by a por-
tion of the Japanese people; that Hiogo is simply the sea-port of Osacca,
and its opening naturally depends on that of the city, while Neegata is
aplace of minor consideration. Your argument on the subject concludes
that the opening of the Japanese commerce has temporarily x^roduced
a great increase in the cost of subsistence of official persons enjoying
fixed and limited incomes, while their salaries have not yet been cor-
respondingly increased. Upon the whole, you suggest*that discretion-
ary power be given to you to act in concert with the ministers of the
other powers interested, in such manner as shall be most advisable for
the welfare of both countries.

"We are sensible of the very great perplexity of dealing with a Gov-
ernment whose constitution is so different from our own, and whose sub-
jects have fixed sentiments and habits so very peculiar. Moreover, we
have the utmost confidence in your ability and discretion, while we
know that it might be hazardous to every interest already secured to
substitute a policy of our own, adopted at this distance, for one which
you find necessary on the spot.

" The President has, therefore, concluded to confer upon you the dis-
cretion solicited by you. To make your way easier, this determination
has not been adopted without previous consultation here with the min-
isters before consulted, who will, of course, communicate the result of
the conference to their respective Governments. This proceeding will,
for the present, suspend the plan of a naval demonstration, before pro-
posed by the United States. 1 must, however, urgently insist that,
except in the extremest necessity, you do not consent to any postpone-
ment of any covenant in the existing treaty, without first receiving sat-
isfaction of some marked kind for the great crime of the assassination
of Mr. lleusken while in the diplomatic service of the United States.

" We leave the form and mode of that satisfaction to your own dis-
cretion. It would be best, if possible, to secure the punishment of the
494

CHAP. III.] JAPAN. [§ 68.

assassins. But circumstauces uuknown to us must enter into the ques-
tion, and will modify your action. The principle, however, seems to us
too important to be abandoned. If the western states can keep their
representatives safely in Japan, they can, perha[)S, wait for the facili-
ties stipulated 5 but if their ministers shall bo obliged by force or ter-
ror to withdraw, all will be lost that has, at such great cost, been
gained. The President acknowledges the letter of the Tycoon, and I
reply briefly to the ministers for foreign affairs. Those replies accom-
pany this dispatch."

Same to same, Au<^. 1, 1861, ibid.

"Your dispatch of June 7 (No. 21) has been received.

''It affords the President sincere pleasure to know that the Govern-
ment of the Tycoon has exerted so much diligence to bring the assas-
sins of Mr. Heusken to punishment, and that you are satisfied that
those exertions have been made with good faith. It is expected that
the Government will not abate its efforts until the end so important to
a good understanding between the two countries shall have been
attained.

" The punishment of the delinquent Yakonines, who were in attend-
ance on the deceased when the crime was committed, is regarded by
this Government with high approbation."
Same to same, Oct. 7, lb61, ibid.

" Mr. Eobert H. Pruyu has been appointed to succeed you, and, I
presume, will reach Yedo as early as January next. You will, of
course, remain in the discharge of official duties until relieved by his
arrival."

Same 1o same, Oct. 21, 1861, ibid.

" Generally a foreign mission is eminently desirable. It is no small
honor to be the organ of one's country in her communications with a
foreign state. The opportunities which such a position affords to serve
two nations, and, consequently, the whole family of mankind, cannot
fail to awaken a noble ambition in any generous and benevolent mind.

"But I fear you will find embarrassments in your mission which will
make you regret its honors and undervalue its powers.

"Japan is a semi-enlightened and isolated country, only recently com-
l)elled into treating with the United States, as it has also been with the
other western powers. The judgment of its Government has been con-
vinced, and, 1 have no doubt, its sentiments have been won to this new
relation with the United States through the great discretion of the late
Commodore Perry, and the wonderful sagacity and patience of your
predecessor, Mr. Harris. But it is notorious that the people of Japan,
especially its ruling classes, have not yet reconciled themselves to the
sudden and complete revolution of national habits, of which there is no
memory to the contrary existing among them. Hitherto, as we have

495

§ 68.] INTERVENTION. [CHAP. UI.

reason to believe, the Japanese Government and people have been
kinder in their sentiments towards us than towards other western na-
tions with whom they have framed treaties under the same circum-
stances.

" But the time has now come for our trial. When we gently coerced
Japan into friendship with us we were a united nation. We did not
admit that there then was, or, indeed, that there ever had been, a
stronj?«r one in the world. Our mercantile and our naval marine vin-
dicated this high pretension on every sea, however distant from our own
continent. Nine months have wrought a great and melancholy change
in this proud position. We are divided by faction, and engaged in civil
war. The national authority is tasked for its utmost vigor to maintain
our flag within our own territory, and our commerce is harassed by pi-
rates of our own kindred, even in our own waters.

" You know tbat we have no doubt of our success in putting down
this unhappy insurrection and restoring the Federal authority. You
have already seen how the Government daily gains strength, and how
the insurrection already begins to decline. But what will be the influ-
ence of the news of our divisions among the semi-barbarians of Japan,
magnified and painted, as they will doubtless be, by strangers, enemies
of the Eepublic, its prosperity, and its power? Will the Government
of Japan retain the fear which, perhaps, was the best guarantee of its
good- will towards us? Will the misguided faction in Japan, so hostile
to all foreigners, suffer the Government to remain in friendship with a
nation that will seem to them to have lost the virtue of patriotism so
essential to command the respect of other nations ? Already we have
heard that the Chinese authorities, informed of our divisions, havecome
to underrate our powc r, and to disregard our rights. Is this evil to be
experienced also in Japan ? To prevent it is the responsibility of ;> our
mission. To watch and guard the national interests there, while the
storms of faction are spending their force against the Government at
home, will be your chief duty. It will require great dignity and firm-
ness, combined with equal prudence and moderation. I can give you
only one counsel : have faith, under all circumstances, in the virtue of
your countrymen, and, consequently, in the triumph of the Union. If
you fail in that faith, your distrust will be discovered by the ill-informed
and feeble minded community around you. They will have no respect
for a Government which they think more pretentious while it is weaker
than their own ; your mission will be a failure, and perhajDS end in dis-
aster and danger. If you have that fait'^, you can impress it upon the
Government and people of Japan, and their friendly relations towards
us may be retained until, our domestic difierences being ended, we are
able once more to demonstrate our power in the East, and establish our
commerce there on secure foundations. You will find no open questions
for discussion in your mission. It is important to preserve friendly and
intimate relations with the representatives of other western powers in
496

CHAP. III.] JAPAN. [§ C8.

Japau. You will seek uo exclusive advantages, and will consult freely
with them upon all subjects, insomuch as it is especially necessary, at
this time, that the prestige of western civilization be maintained in Yedo
as completely as possible. In short, you will need to leave behind you
all memories of domestic or Euroi)ean jealousies or ;inlipatliies, and
will, by an ecjual, just, and honorable conduct of your mission, make
the simple people of Japan respect, not only the institutions of your
own country, but the institutions of Christianity and of western civili-
zation."

Mr. Seward, Sec. of State, to Mr. Fruyn, Nov. 1.''), 1861. MSS. Inst., .Japan;
Dip. Corr., 1861.

"Your dispatch of April 10 (No. 15) has been submitted to the Presi-
dent. It is an occasion of sincere regret that the Government of Japan
has not been able to guarantee the safety of foreigners sojourning in
the country, and that it has thus been brought to the necessity of yield-
ing to demands of indemnity under coercion. I am bound to believe
that that crisis which you have informed me was approaching, has now
actually i)a8sed. I can give you, therefore, only instructions with refer-
ence to what may be expected to be the condition of affairs existing at
the time when this communication shall have reached you. It is
manifestly the interest and duty of all the western powers to maintain
harmony and good accord in Japan. We have not only the right, but
also good reason, for supposing that Her Majesty's Government will not
seek any conquest or exclusive advantage in that Emi)ire as a result of
any conflict which may have taken place. So long as the operations of
the British Government shall be confined to the attainment of the ob-
jects announced' in preliminary communications, it will be your duty to
lend to them all the moral support in your power. And the naval forces
of the United States which may be i)resent, while ju'otecting the Ameri-
can legation and American citizens sojourning there, will take care not
to hinder, oppose, or embarrass the llritish authorities in the prosecution
of those objects. The United States having no grievances of their own
to complain of against Japan, will not unite in hostiities against that
Government, but they will, at the same time, take cave not to disapprove
of or censure, without just cause, the measures whicii Great Britain
adopts to obtain guarantees which, while they are necessary for her,
must also result in the greater security of all the western natioirs."'

Mr. Seward, Sec. of State, to Mr. Pruyn, June 2i), lf^6:5. MSS. Inst., Japan
Dip. Corr., 1863.

"I have the honor to acknowledge the reception of your several dis-
patches bearing the dates and numbers following, namely : Ai>ril ;i(>,
i^o. 16 ; May 1, No. 17 ; May 1, No. 18 ; May 1, No. !!» ; May L», No. iM) ;
May 3, No. 21 ; May 3, No. 22; May 4, No. 23. I have also received
from George S. Fisher, the United States consul at Kanagawa, twodis-
S, Mis, 102— VOL. T_32 497

§ G8.] INTERVENTION. [CHAP. III.

patches, oue of which, numbered 15, bears the date of May 7, and the
other, written under the date of May 8, is marked 17.

" Speaking- in a practical sense, I may observe that all these papers
advert to the critical condition of the relations between the western
treaty i)owers and Japan, which has arisen subsequently to the demand
upon the Tycoon for indemnities which has been made by the British
Government, or, at least, that the various questions which the dis-
patches present are to be considered in view of that extraordinary- con-
dition of affairs.

" The leave of absence for six months, within the next year, which
you have solicited, will be granted, if the political crisis that now exists
in Japan shall, in the mean time, pass off without i^roduciug any change
inconsistent with or adverse to the relations created by the treaty now
existing between this country and that Empire. * * *

"I have. carefully read your two notes addressed to Mr. Neale, Her
Britannic Majesty's charg6 d'affaires, in relation to the demand he has
made upon the Tycoon's Government, and it gives me pleasure to say
that Ifiud nothingin them to disapprove. Tlie counsel that you gave Mr.
iSTeale was not obtrusive, and it seems to me to have been quite discreet
as well as humane. On the other hand, this Government, if it were
disposed to be querulous, might well complain of some injurious state-
ments and reflections which have found place in Mr. Neale's portion of
the correspondence. jSTevertheless, the President permits me to pass
them by, for two reasons : First, the good faith of the United States to-
wards Great Britain and all the other treaty powers in regard to Japan,
is impressed upon the records of our diplomatic intercourse with them.
As yet it has not even been questioned ; and it is not likely to be
questioned by any one of those Governments, or by any agent author-
ized to speak in their behalf. Secondly, the common interests of civili-
zation and humanity require that there shall be concert and unity among
the treaty powers, in the present crisis, unobstructed by jealousy or sus-
picion, or unkind debate of any sort. From all the papers before me I
learn that this was the situation of aff"airs at Yedo on the 8th of May,
namely: That the British legation had demanded indemnities, which
must be conceded on or before the 21st, or else that the British fleet
would proceed to hostilities against Japan. Secondly, that the French
naval forces were prepared to act in concert and co-operation with the
British. Thirdly, that it was doubtful whether the indemnities would
be seasonably conceded by the Tycoon's Government. Fourthly, that if
that Government should conclude to yield the indemnities, yet that,
under the auspices of the Mikado and a combination of daimios hostile to
the foreign ]>olicy of the Tycoon, a civil war was very likely to break out.
Fifthly, that a popular excitement was prevailing which rendered the
continuance of jieace uncertain in every event, and that foreigners were
assaulted and put in jeopardy of their lives by armed bodies of the
Japanese, and among such foreigners were several Americans. Sixthly,
498

CHAP. III.] JAPAN. [§ ()8.

it may be iuferred from this circumstance that whatever claiuis the
citizens of the United States might have to friendshij), protection, or
even freedom from danger, such citizens are likely to be confounded
with all other foreigners in any uprising or disturbance of the i)ublic
peace.- Seventhly, the Wyoming, at the date of these dispatches, had
gone to Hong-Kong for repairs. I learn here, however, that her repairs
were comideted on the 27th of April, and that she was then about to
proceed to Kanagawa, so that she probably was there as early as the
21st of May, the day finally appointed for the decision of the Tycoon's
Government to be communicated.

" I shall now give you the Presidents opinion of your duty, and that
of the commander of the Wyoming, in view of the situation which may
be expected to be existing when this dispatch shall have reached Japan :
Your whole moral influence must be exerted to procure or preserve
peace between the other treaty powers and Japan, based, if necessary,
on a compliance, by the latter power, with the terms prescribed by
them, inasmuch as it is not doubted that those terms will be demanded
simply with a view to the necessary security of foreigners of all nations
remaining in Japan.

" Second. If the authorities of Japan shall be able to excuse them-
selves for the injuries which Americans may have suffered at the hands
of Japanese subjects, and shall in good faith have granted adequate
indemnities, or be proceeding to afford them, and also shall be able to
guarantee the safety of American residents, the subject may rest; and
while there the Wyoming will not commit any hostile act against the
Japanese Government or power. But, on the contrary, if in your judg-
ment it shall be necessary for the Wyoming to use b'er guns, for the
safety of the legation or of Americans residing in Japan, then her com-
mander will employ all necessary force for that purpose. If the mem-
bers of the legation, or of the consulates, find it at any time unsafe to
remain in Japan, they will, of course, seek a safe retreat as convenient
as possible, and will report to this Department.

While executing these instructions you will, so far as may be in your
power, continue to cultivate friendly sentiments on the part of the Jap-
anese Government, declaring, however, to them and to the representa-
tives of the other powers, that in doing so you are seeking no exclusive
or distinct advantage for this Government, but only the common inter-
ests of all nations in that extraordinary country.

"The Secretary of the Navy will give all necessary instructions to
the commander of the Wyoming in harmony with the views of the
President expressed in this dispatch."

Same to same, July 7, 1P63, ihid.

"I have just received your dispatches of May 8 (No. 24), May 8 (No.
25), May 11 (No. 26), May 12 (No. 27). By these papers I learn the

499

§ 68.] INTERVENTIOx\. [CIIAP. III.

definitive propositions which had been submitted by the British and
French legations at Yedo to the Tycoon previously to the 11th of May,
and their purpose to adopt coercive measures in concert, after the 21st
of that month, if those propositions should be rejected. I learn also
from the same dispatches the divisions and distraction there existed in
the Japanese councils, and that the people were in an excited condi-
tion, which foreboded either the outbreak of civil war, or, more proba-
bly, the acceptation of a foreign war; and, most painful of all, the
papers confirm the accounts which had before been received from the
consul at Kanagawa of unprovoked violence committed at that place
upon American citizens by subjects of the Tycoon.

''It is a source of much satisfaction that the Wyoming had returned
to that port in the midst of these occurrences, as had already been
anticipated by the Government here. On a careful review of all these
facts, it is believed that there is no necessity to modify the instructions
which were given you in my dispatch of the 7th instant (^o. 43).

"In regard to the acts of violence committed upon the persons of
American citizens, it is j)resumed that you have required that the
offenders shall be brought to punishment by the Tycoon's Government
without delay. It is left in your discretion whether, under the circum-
stances which shall be existing when this dispatch shall reach you, it
is expedient to insist upon pecuniary forfeitures, or compensations to
be paid by the Government in addition to the punishment of the offend-
ers. If you think it expedient, you are at liberty to say to the minis-
ters of foreign affairs that the President has reserved this question for
consideration after the difficulties now existing between the Govern-
ment of the Tycoon and the British Government shall have been
adjusted, and the peaceful condition of affairs which prevailed before
the disturbance occurred shall have been renewed.

"The President is profoundly sensible of the inefficiency of the
instructions you have heretofore received for your safe guidance in an
emergency that was not foreseen, and could not be anticipated. When
the instructions now given you shall have arrived, the condition of
affairs in Japan may be such as to render them inapplicable. Under
these circumstances you must exercise a large discretion, governed by
two primary considerations, namely: First, to deserve and win the con-
fidence of the Japanese Government and people, if possible, with a view
to the common interest of all the treaty powers; secondly, to sustain
and co-operate with the legations of those powers in good faith, so as
to render their efforts to the same end effective. It may be not alto-
gether easy to apply these two i)rinciples in the conduct of details.
You will, however, make the best effort to do so, and will be permitted
to judge which of them must give way in any case of irreconcilable
conflict."

Same to same, July 10, 1863, Hid,

CHAP. III.] .JAPAN. [§ G8.

'' Your several dispatches have been received, whicli bcnr dates mid
DuniberH as follows:

"May 26, No. 29 ; May 20, No. 30; Juue 12, No. 31 ; .Imic lo, No. 32;
June 15, No. 33; June 16, No. 34; Juue 17, No. 35; June 18, No. 36;
June 20, No. 37; June 22, No. 38; June 23, No. 39; .luue 24, No. 40;
June 24, No. 41 ; and June 24, No. 42.

"Due acknowledgments will be made to tbe French and British Gov-
ernments for the hospitalities and sympathies which were extended to
you by their respective ministers on the occasion of your being driven
from your residence in Yedo.

"Your proceedings in relation to the claims of Switzerland, Belgium,
Austria, Denmark, Sweden, and Brazil, to enter into treaty relations
with Japan, are approved.

" Several very important subjects are presented for consideration in
your dispatches. First, the destruction bj' fire ot the residence of the
legation at Yedo. Secondly, your removal of the legation to Y'okohama.
Thirdly, the differences between the British Government and that of
Japan. Fourthly, the order of the Tycoon, requiring foreigners to with
draw from the Empire. Fifthly, the questions between Jai)an and the
United States which have resulted from the occurrences thus brouglit
under review. It will be proper to draw into connection with this last
topic the violences which have been committed against some of our citi-
zens, as reported to this Department in your previous comnumication,
of the 12th of May last, No. 28, and which were commented upon in my
instructions of the 10th of July last.

" Having taken the President's directions, I proceed to consider these
interesting and important questions.

"First. The facts submitted by you raise a strong presuin[)tion that
the act of firing the residence of the legation was committed by incen-
diaries, with a purpose at once political and hostile to the United States,
and that the Government of Japan could ])robably have foreseen and
prevented it, and that they have at least given to it tacit assent and
acquiescence.

" Secondly. The President is satisfied that your removal of the lega-
t-?n from Yedo to Yokohama was prudent and wise, in view of the cir-
cumstances then existing in Japan, and the proceeding is a])proved.
But it is equallj clear that the Government of Japan ought to have so
controlled those circumstances as to have rendered the removal unnec-
essary; and that it is bound to provide for your safe return to Yedo,
and for the secure and permanent re-establishment of the legation in
that capital.

" Thirdly. Your proceedings in regard to the controversy which has
arisen between the British Government and that of Japan appear to
have been conciliatory, and to have been equally just and fair towards
both parties, without at all compromising any rights oi the United States,
and they are approved.

501

§ n^.] INTERVENTION. [CHAP. III.

"Fourthly. It is with much regret that the rresident lias arrived at
the conclusiou that the Government of Japan has failed to keep its faith,
solemnly pledged by treaty, with the United States. This regret is ren-
dered the more painful by the reflection that this Government has, from
its first acquaintance vfith Japan, conducted all its intercourse with the
Tycoon with the utmost sincerity, frankness, and friendship. The United
States have constantly conceded, on their own part, and sought to con-
ciliate other powers in' their intercourse with Japan. If our advice had
been followed, the dangers which now threaten the Empire would have
been averted, and Japan would have been able to profit by a peaceful
yet free and equal intercourse with all nations. Even now, although
the Government of Japan has done so much and suffered so much to be
done to alienate and injure the United States, the President is still dis-
posed to persevere in the same liberal and friendly course of proceed-
ings which he has hitherto pursued in regard to Japan. But the friend-
ship of this country cannot be secured by the Government and people
of Japan, nor would it be of any avail, if the United States should fail
to maintain their own dignity and self-respect in their intercourse with
Japan with the same firmness which they practice in regard to all other
nations.

" (1) You will, therefore, demand of the Government of the Tycoon
prompt payment of a sum sufficient to indemnify all the losses which were
sustained by yourself and other members of the legation on the occasion
of the firing of your official residence,

" (2) You will demand that diligent efforts be made to discover the
incendiaries and bring them to condign punishment.

" (3) You will demand proper and adequate guarantees for your safe
return to Yedo, and the permanent re-establishment of the legation there
without delay.

" (4) You will insist on the full observance of the treaties between the
United States and Japan in all the particulars which have not been
heretofore waived or postponed by this Government.

" (5) You will demand a reasonable indemnity, to be fixed by yourself,
for the injuries which have been sustained by any American citizens
from any acts of violence committed against them by Japanese subjects.
And you will further demand that diligent eftbrts be made by the
Tycoon's Government to bring the aggressors to justice, and to inflict
upon them such punishment as will be calculated to prevent further out-
rages of the same kind.

"You will employ the naval force at your command to i)rotect your-
self, the legation, and others of our countrymen, under any circum-
stances which may occur; and you will inform the Government of the
Tycoon that the United States will, as they shall find occasion, send
additional forces to maintain the foregoing demands.

" So far as you may have occasion to counsel or act in relation to the
controversy which is pending between Great Britain and Japan, you
502

CHAP. IIT.] JAPAN. [5 C>f<

will be guided by tlie letter and spirit of ])revioiis iuslriictioiis fV(nii this
J)ei)artineiit.

" You will send to me autheuticated and verified iiccounts of the losses
which have been sustained by yourself and other members of the leya-
t'ion by the burning of your residence in Yedo, to the end that an apj*)!-
cation may be made to Congress for an adequate appropriation for the
proper indemnity.

"It is hardly necessary to say that you will, so far as is possible,
execute these instructions in no spirit of resentment, or even of anger ;
but, on the contrary, while exhibiting the necessary firmness, you will
make it manifest to the Tycoon's Government that the novel and peril-
ous circumstances which attend its situation are fully understood and
ai»preciated by the President, and that he desires, with the utmost sin-
cerity and friendship, to favor the interests of internal peace in Japan,
and of ])eace between that country and the several powers of Europe
and America."

Same to sjiine, Sept. 1, 1863, ibid.

" Your interesting dispatches of the 25th of June (No. 23), the 2Glh of
June (No. 44), and the 27th of June (No. 45), have been submitted to
the President.

'♦ In my instructions of the 1st of September (No. 46) I have auticii)ated
the events occurring in Japan, which these papers have brought to my
knowledge, and no special reply to them seems necessary, excei)t that
I shall invite the attention of the other treaty powers to the suggestion
which you make concerning the expediency of demanding a ratification
of the treaties by the Mikado, and of proper demonstrations to securq
that ratification."

Same to same, Sept. 9, 1863, ibid.

" I have the honor to acknowledge the reception of your dispatches
of the 24th of July (No. 48), 24th of July (No. 49), and July 25 (No. 50),
which furnish the details of the assault made by the Prince of Nagato,
or the Japanese, upon the American merchant ship Pembroke, and the
proceedings of Commander McDougall, in tho United States steamship-
of-war Wyoming, under your sanction, to redress that wrong. The
paper further describes the aggressions committed by the same ])arties
against Dutch and British merchantmen, with the proceedings adopted
by the representatives of all the treaty powers in regard to these out-
rages. Your proceedings connected with them are fully and cheerfully
approved. You will, in all cases, hold the claims of this Government
and of citizens of the United States distinct and separate from those of
other Governments and subjects of other powers. But this separation
will not be expected to restrain you from acting with your colleagues,
and giving them your moral support ; and when there is need, with
reference to common defense, or to save a common right, or secure a
common object, just and lawful in itself, the naval force of the United

603

^OS.] mrFMvmno^. [chap. m.

States will bo cxi)ectetl to co openite wiLli those of the other western
])owers.

" Having- been advised by .your dispatcli of the 8th of August, which
eanie from San Fraucisco b^' telegraph, that the Tycoon has returned to
Yedo, and that your relations with his Government are much im])rovcd,
T deem it inexpedient to restrain your discretion at present by special
instructions, but cheerfully wait the development of events which must
have occurred since that communication was sent."

Same to same, Oct. 3, 1863, ibid.

As to menioramlum in 1864 between the United States and Great Britain, Fiance,
and the Netherlands, relative to the coercive measures to be adopted against
the Prince of Choshiu in the Straits of Shiraonasaki, see Brit, and For. St.
Pap. for lS72-'73, vol. 63.

It is proper that the representatives of the United States in Jaj^an
should unite with other diplomatic agents in that country in advising
that the Japanese laws i^rohibiting Christianity should be repealed.

Mr. Seward, Sec. of State, to Mr. Van Valkcnbnrgh, Oct. 7, 1867. MSS. Inst.,
Japan. See Mr. Seward to Mr. Van Valkeuburg, Oct. 5, 1868, ibid.

As to exclusion of Americans from the Japanese island of Amaknsa, see Mr.
Fish, Sec. of State, to Mr. De Long, Sept. 15, 1870. MSS. Inst., Japan.

" It is to me inconceivable that there are no courts in Japan. There
must be tribunals or officers of some kind for settling civil controver-
sies. The sixth article of the treaty of 1858 (Consular Regulations, page
157) refers to such courts. The treaty, in efl'ect, remits American cred-
itors of Japanese subjects to such courts, and on general principles they
must accei)t such remedies as the Government of Japan provides for its
own subjects, waiting for diplomatic intervention till the case of a denial
of justice is established. If the minister will instruct his countrymen
on this subject, he will be relieved of the duties of an attorney in private
controversies. * * *

" It is not deemed advisable to propose or ask of Congress a measure
providing for an examiner of claims in Japan. The minister should not
be deprived of his full responsibility about urging claims, but it would
be we^l for our ministers everywhere to refrain from anything like a
peremptory presentation of a claim until after it has been examined in
this Department, except in cases of urgent emergency. The Govern-
ment has frequently found itself at quite an advanced stage of the dis-
cussion of a doubtful claim, before this Department had any informa-
tion, or, if any, inadequate information, for a judgment upon the case."

Mr. Fish, Sec. of State, to Mr. De Long, Jan. 21, 1871. MSS. Inst., Japan;
For. Eel., 1871.

" I am not prepared, without further reflection, to assume the broad

ground that the Government of Japan is bound to allow our citizens to

conduct at the open ports any business which is lawful by the laws of

the United States, or even any and every business which may be law-

504

CHAP. III.] JAPAN. [§ 68.

fill by tlic laws of all other civilized luitioiis. A couiiliy huviiig what we
regard as an imperfect civilization may, for that very reason, find it
necessary to establish and maintain police regulations in the interest of
internal order touching with more or less severity upon trade of various
kinds which this country and the western powers generally deem it safe
to leave uutrammeled."

Mr. Fish, Sec. of State, to Mr. De Long, May 11, 1871. MSS. Inst., Japan.
As to distinctive features of the political system of Japati, see Mr. Fish, Sec. of
State, to Mr. De Long, May '20, 1871. MSS. Inst., Japan.

" Foreigners in Japan, as in any other country, are subject to its'
jurisdiction, except so far as it is limited by express or tacit convention.
All that has been sought by the Christian jiowers is to withdraw their
subjects from the operation of such laws as conflict with our ideas of
civilization and humanity, and to keep the power of trying and punish-
ing in the hands of their own representatives. It is i^roper, therefore,
for the latter, when they find a Japanese regulation, not found, in our
case, in the statutes or the common law, to acquaint their countrymen
with the fact of such recognition, and that it will be enforced according
to our methods and in our tribunals. This, combining the sanction of
the two Governments, avoids, on the one hand, the assertion of the ab-
solute immunity of our citizens from any Japanese regulation, however
reasonable and necessary, and, on the other hand, of an unqualified
legislative power in our diplomatic and consular representatives — a
l)Osition which it seems judicious to maintain until Congress shall act
on the subject."

Mr. Fieh, Sec. of State, to Mr. Do Long, May 21, 1871. MSS. Inst., Japan.

" It seems to me within the legitimate police powers of the Govern-
ment of Japan to prohibit their subjects from assembling to bet upon
the prices of staple commodities which the sham seller does not intend
to deliver, nor the buyer to take into possession. The circumstance
that an American citizen presides over the mock auction or furnishes
the building where it takes place does not impair that power."

Mr. Hanter, Acting Sec. of State, to Mr. Do Long, Jnly 1, 1871. MSS. Inst.,
Japan.

Concert between the treaty powers as to Japan should be maintained
" at least until after the revision of the treaties, and until the Govern-
ment of Japan shall have exhibited a degree of i)0wer and capacity to
adopt and enforce a system of jurisprudence and judicial administration
in harmony with that of the Christian powers, equal to their ardent de-
sire to be relieved from the enforced duties of extraterritoriality."

Mr. Fish to Mr. N. Fish, Sept. 2, 1874. MSS. Inst., Gerin. ; For. Rel., 1874.

As to general impolicy of joint action of foreign ministers, see infra, ^ 10"2.

"Your dispatch of the 5th ultimo, No. 1523, in relation to the require-

505

§ (IS. J TNTEnVtlNTTOK. [cRAP. Ttl.

niont of tlu^ liiitisli order in council, of tbo 25th of October, 1881, lo
the effect that a foreign resitleut in elapau, of any other than British
nationality, in order to the maintenance by him of a civil action in the
J>ritish consular courts in that country aj^ainst an En^jlish subject
must 'first obtain and file in the court the consent in writing of the
competent authority of his own nation to his submitting, and that he
does submit, to the jurisdiction of the court, and, if required by the
court, give security to the satisfaction of the court and to such reason-
able amount as the court directs, by deposit or otherwise, to pay fees,
damages, costs, and expenses, and abide by and perform the tlecision
to be given either by the court or an a])peal,' has been received; and
in connection with a dispatch of the 21st of June last, No. 632, from
Consul-General Van Buren on the same subject, and, indeed, relating
lo the precise case which Mr. Stahel presents to you, has received at-
tentive consideration.

"The general question was brought to the attention of the Depart-
ment by Consul-General Van Buren in April last, in his dispatch No.
(J19, and on the 9th of May following, Mr. Bancroft Davis, Assistant
Secretary of State, replied, by instruction No. 277, to Mr. Van Buren,
that he conceived the requirement of the British order in council to be
'fair and just.' Although the instruction referred to was brief, it was,
nevertheless, the result of careful consideration, as Mr. Davis was" at
that moment engaged in examination of the general question of extra-
territoriality, and had the whole subject before him.

"Mr. Stahel, in his reply to the British consul, an extract from which
General Van Buren transmits in his No. 032, of June 21 last, says:

"'Further, it appears to me that such submission, with my consent,
to the jurisdiction of your court, to have the eifect which the order in
council you refer to must have contemplated, would require me, in case
of need, to execute the judgment of your court, thus placing not only
citizens of the United States under the jurisdiction of, but, virtually,
the United States consular court officers subject to the orders of, Her
Majesty's court.'

" I am unable to perceive that any such result would follow from the
permission (for that is the proper word) of the United States consul to
a citizen of his nation, or from anything in the terms of the order in
council which is now before me. The citizen of the United States suing
a British subject, in a British court, under the conditions referred to,
submits himself to the process of the court in which the proceedings
are had — nothing less and certainly nothing more.

"You advance two objections to the British requirement:

"First. That the British court may adjudge dama^^es against the
American plaintiif and in favor of the English defendant in a claim of
the latter in nowise connected with or growing out of the plaintift's
cause of action.
506

CHAP. III.] JAPAN. [$ C)^.

" I tliiuk you will at oiico i)erc('iv<' that this ohifciion i.> mrt \t\, pro-
vision in 47 of the order in council, lint, secondly, yon add, that the
court uuiy, in case the plaintiff fails to perform its decision in the prcm
ises, commit the American citizen to a British consular prison by order
of a British consular court.

"With great deference for any opinion that you might express on
any legal question, I must be permitted to say that that appears to me
to be a forced construction of the order. Except for contemi)t and to
enforce ^pecitic orders and decrees in chancery, imprisonment cannot
properly be an element of ])rocedure in civil actions in English any
more than in American courts. * * * It appears to me most desir-
able that in its administration (that of the extrajudicial system estab-
lished by Christians in Japan) harmony and comity should be culti-
vated between the different foreign nationalities, and that niceties and
technical views should be as far as possible ignored, thereby facilitating
that justice to foreign residents in those countries which the system was
* intended to secure.

" You will consider the views imparted to General Van Buren by Mr.
Bancroft Davis in the instruction already referred to, a coi)y of which
I inclose, as the ruling of the Department.

"I also transmit for your convenience a copy of a letter on the gen-
eral subject, addressed to the chairman of the Seimte Committee on
Foreign Kelatious, on the 29th of April last, by the Secretary of State."
Mr. JoliQ Davis, Acting Sec. of State, to Mr. Bin<rham, Aug. 11, 188:3. MSS.
Inst., Jai)au ; For. Eel., 1882.

" The English contention has hitherto been, under the most-favored-
nation clause of the treaties, that it is absolute, and that even when
Japan may bargain with any power to give it a favor for an equivalent,
the like favor must be granted to England without equivalent.

" The Japanese contention is the reverse of this, being that if a favor
for a specific condition be stipulated with any one nation, no other may
enjoy the favor except upon identical or equivalent conditions.

"The theory on which this Government views the question is akin to
that of Japan. For example, the United States have just concluded a
commercial treaty with Mexico by which each country especially favors
the other by putting on its free list certain dutiable products. Under
the favored-nation clause of our treaties with other nations we are not
bound to give their products the benefit of our free list, even though
such country may not impose any duty on the articles which Mexico
has free-listed in our favor; but we would be willing to stipulate to
give a third power the favor we give Mexico in exchange for some
equivalent favor not. general as towards the rest of the world.

" The British contention and our own are in mauifest conUict. How
far the German proposition may cover our ground depends on the iuter-

507

§ H-S.] INTERVENTION. [CHAP. III.

]>!etatiou to be given to the phrase 'provisions of execution' (Ausfiihr-
iings-bestiiiimungen). By this, as appears from the instruction of April
4, J.S84, is to be understood ' jirovisions of a purely administrative char-
acter, or such as relate to custom-house business.'"

Mr. Frelinghuysen, Sec. of State, to Mr. Bingham, June 11, 1«84, MSS. Inst.,

Japan.
As to " favored nation," see infra, § 134.

The Government of the United States is not responsible to that of
Japan for the lynching and murder of a Japanese subject in Utah by a
mob which could not have been quelled by due diligence and energy
by the Government. In this case the Japanese had previously shot and
killed a woman '^ without excuse or justification."

Mr. Frelinghuysen, Sec. of State, to Mr. Kuki Rinichi, Oct. 18, 1884. MSS.
Notes, Japan.

The following Cougrtssioual documenis may be referred to in this relation :
Resolution requesting a report as to the expediency of returning the indemnity
fund to Japan, after deducting all just claims for damages, &c., properly
chargeable to that fund. Dec. 15, 1875. House Mis. Doc. 24, 44th Cong., Ist
sess.
Return of, to Japan recommended ; but a sufficient sum to cover the claims of
naval officers and crews be retained. Mar. 22, 1876. Senate Rep. 169, 44th
Cong., 1st sess.
Resolution of Chamber of Commerce of New York favoring a return of the fund to
Japan after paying the damages sustained by citizens of the United States.
Feb. 7, 1876. Senate and House Mis. Docs. 80, 44th Cong., 1st sess.
Report favorable to return of, to Japan. May 14, 1878. Senate Rep. 378, 46th

Cong., 2d sess.
Report favoring return of, to Japan, after satisfying certain claims. June 7, 1878.
House Rep. 913, 45th Cong., 2d sess. Mar. 31, 1880. House Rep. 669, 46th
Cong., 2d sess. Jan. 13, 1881. Senate Rep. 752, 46th Cong., 3d sess.
Favorable report. Jan. 31, 188i. House Rep.. 1.38, 47th Cong., 1st sess.
Favorable report ; amount of the accumulated fund. Feb. 7, 1882. Senate Rep.

120, 47th Cong., 1st sess.
Resolution declaring the right of the United States to the indemnity received, and
that if it ever be returned it be done without interest or premiums. Jan. 6,
1883. Senate Mis. Doc. 20, 47th Cong., 2d sess.
Memorial of American residents in Japan asking for legislation for their Govern-
ment. Mar. 22, 1882. Senate Mis. Doc. 70, 47th Cong., 1st sess.
As to consular jurisdiction in Japan, see further infra, §Q 125, 153, and see also
Mr. Eli T. Sheppard's pamphlet on "Extraterritorialty " in reference to
Japan.
The corre.spondence in 1850 relative to the visit of the Preble to Japan for
the purpose of demanding imprisoned American seamen, is given in House
Ex. Doc. Xo. 84, 31st Cong., l.st sess.
Documents relating to official intercourse with, prior to 1852, are given in Sen-
ate Ex. Doc. No. 59, 32d Cong., Ist sess.
The report of the Secretary of the Navy, Jan. 29, 1855, relative to the naval ex-
pedition to Japan, is given in Senate Ex. Doc. No. 34, 33d Cong., 2d sess.
The correspondence prior to 1860, in regard to missions to Japan, is given in
Senate Ex. Doc. No. 25, 36th Cong., Ist sees.

608

CHAP. III.] KECOGlNiTlON OF BELLIGERENCY. [§ CO.

(13) Turkey, Tiaroo, and Tunis.

§ 68a.

Citizens of the Uuited States, in common with all other forcifrn
Christians, enjoj" the privileges ofextiaterritoiialitvii: Tiiikcy. inclndiii;^^
Egypt, as well as in the Turkish regencies of Tripoli and Tunis, and
also in the independent Arabic states of Morocco and Muscat.

Sta,t^^s of Ainericans in Turkey, 7 Op., .5(5f), dishing, 1855.

As to consular jurisdiction in, see infra, ^ 12').
As to rifflit of asylum in, § 104.
As to treaties with, § 165.

Y.—EECOGNITION OF BELLIGERENCY.
§ 69.

"It is a well-known fact that the vessels of the South American prov-
inces were admitted into the ports of the United States under their owu
or any other flags, from the commencement of the llevolution, and it is
equally true that throughout the various civil contests that have taken
place at different periods among the states that sprung from that Revo-
lution, the vessels of each of the contending parties have been alike
permitted to enter the ports of this country. It has never been held
necessary, as a preliminary to the extension of the rights of hosi)itality
to either, that the chances of the war should be balanced and the prob-
ability 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 Texan, it is not to be expected that
it should be made a prerequisite to the ineie exercise of h().si)itality im-
l>lied by the admission of the vessels of that country into our i)orts.
Tlie declaration of neutrality by the President in regard to the existing
contest between Mexico and Texas was not intended to be coiitined 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 (|nes-
tion on tiie subject arise, but it was designed to extend everywlu-re 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 Govern-
ment to observe in respect to the present contest between those coun-
tries ; iior is it thought necessary to scrutinize the character or author-
ity of the flag under which they may sail, or the validity of the com-
mission under which they may be commanded, when the rights of this

509

\\ G9.] INTERVENTION. [CHAP. III.

country and its citizens are respected and observed. In this frank ex-
pression 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 evideuce 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 en-
tertained, 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, Sept. 20, 1836. MSS. Notes, Mex.

If citizens of the United States, enlisted in the service of an insur-
gent power whom the United States acknowledges as belligerent, but
which is not so acknowledged by the parent state, should be treated
when cax)tured by the parent state otherwise than as prisoners of war,
and their release, when demanded by the United States, should be
refused, " consequences of the most serious character would certainly
ensue."

Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842. MSS. Inst., Mex.
See further infra, § 381.

For Mr. Webster's Hiilsemann note of Dec. 21, 18.50, as to Hungarian interven-
tion, see supra, § 47.

" 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 independ-
ence, which, in fact, does not so much admit its existence as it an-
nounces its result, at 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."

Mr. Cass, Sec. of State, to Mr. Osma, May 22, 1858. MSS. Notes, Peru.

" INIr. Osma insists, however, that a civil war in one country cannot
\w known to the people of another but through their own Government ;
that the existence or non-existence 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 i^lace,
he cannot be molested or even blamed for regulating his behavior by
the laws thus established. Xay, he has no choice; the Government de
facto will compel his obedience. It will not give him leave to ignore
510

CHAP. lU.] RECOGNITION OF BELLIGERENCY. ^ 69.

the matter of fact while he waits for the solution of a legal problem at
home. Besides, if he resists the authority of the i^arty in possession on
the ground that another has the right of possession, he dej)arts from
his neutrality, and so violates the duty he owes to both the belligerents,
as well as to the laws of his own country."

Mr. Cass, Sec. of State, to Mr. Clay, Nov. 26, 1858. MSS. Inst., Pera.

In the Br. and For. St. Pap. for 1659-'60, 1126, vol. 50, will be found the cor-
respondence of the United States with Peru, relative to the recognition by
the United States of the existence of civil war between Vivanco and Cas-
tillo. See also same work for 1860-'61, vol. 51.

In an article entitled "A famous diplomatic dispatch," in the Xorth
American Review for April, 18S6, Mr. Kiee gives an account of the in-
struction of May 21, 38G1, .sent by Mr. Seward to Mr. Adams. United
States minister at Loudon, in relation to the recognition by Great Britain
of the belligerency of the Southern Confederacy. Mr. Lincoln's inter-
lineations and corrections in Mr. Seward's draft, a fac-similie of which
accompanies the article, show with what care he avoided all unneces-
sary disclosures of policy, and all remarks which might give unneces-
sary offense or provoke hostility.

As to protests against recognition by Great Britain and France of belligerency
of Confederate States, see Mr. Seward, Sec. of State, to Mr. Dayton, May
30, 1661. MS.S. lust., France. See also same to same, June 17, July 6, Oct.
30, 1861; Apr. 1.5, 1862; Mr. Seward to Mr. Adams, Aug. 10, 1865. MSS.
In6t.,Gr. Brit.

The recognition by Great Britain of Southern belligerency is discossed by Gold-
win Smith in 13 Macmillan's Mag., 163.

'• Mr. Adams, minister in London, in adverting, June 14, 1861, to the
concession of belligerent rights to the Confederates, remarks : 'At any
rate there was one compensation, the act had released the Government
of the United States from responsibility lor any misdeeds of the rebels
towards Great Britain. If any of their people should capture or mal-
treat a British vessel on the ocean, the reclamation must be made only
on those who had authorized the wrong. The United States would not
be liable.' Papers relating to Foreign Affairs, &c., p. 89."

Lawrence's Wheaton (ed. 1863), 44. See on this point infra rulings in this sec-
tion, and also ^5 223^.

" Your dispatch of April 9, Xo. 297, has been submitted to the Presi-
dent.

" You have rightly interpreted to Mr. Drouyii de I'Huys our views
concerning the issue of letters of marque. The unrestrained issue of
piratical vessels from Europe todestroy our commerce, break our block-
ade of insurrectionary ports, and invade our loyal coast would practi-
cally be an European war against the United St;ites none the less real
or dangerous for wanting the sanction of a formal declaration. Congress
has committed to the President, as a weapon of national defense, the
authority to issue letters of marque. We know that it is a weapon that
cannot be handled without great danger of annoyance to the neutrals
and friendly commercial powers. But even that hazard must be in-
curred rather than quietly submit to the apprehended greater evil.

§ 69 ] INTERVENTION. [CHAP, III.

There are now, as you must have observed, indications that that appre-
hended greater evil may be averted through the exercise of a restraining
power over the enemies of the United States in Great Britain. Hope
ful of such a result, we forbear from the issue of letters of marque, and
are content to have the weapon ready for use if it shall become abso-
lutely necessary. (See infra, § 385.)

" It gives me great pleasure to acknowledge that, beyond what we
deem the original error of France in recognizing, unnecessarily-, as we
think, the insurgents as a belligerent, we have every reason to appre-
ciate the just and impartial observance of neutrality which has been
practiced in the ports and harbors of France by the Government of the
Emperor. In any case it will be hereafter, as it has been hitherto, a
pleasng duty to conduct all our belligerent proceedings so as to inflict
no wrong or injury upon the Government or the people of the French
Empire.

"Tou have also done the country a good service in explaining, in
your conversations with Mr. Drouyn de I'Huys, the manner in which
we have heretofore maintained our neutrality in foreign wars, by enforc-
ing our enlistment laws, which are in all respects the same as those of
Great Britain.

"The President has received with much interest Mr. Drouyn de
I'Huys's exposition of the policy of the French Government in regard
to the insurrection in Poland. The Emperor of Eussia seems to us to
have adopted a policy of beneficent reform in domestic administration.
His known sagacity and his good dispositions encourage a hope that
Poland will not be denied a just share of the imperial consideration if, as
seems now to be generally expected in Europe, the revolution attempted
by her heroic people shall be suppressed.

" I do not care to speak often ui)on the war of France against Mexico'.
The President confidingly believes that the Emperor has no purpose of
assuming, in the event of success, the Government of that Republic.
Difficult as the exercise of self-government there has i)roved to be, it is,
nevertheless, quite certain that the attempt to maintain foreign author-
ity there would encounter insurmountable embarrassment. The country
possesses immense, practically inexhaustible, resources. They invite
foreign labor and capital from all foreign countries to become natural-
ized and incorporated with the resources of the country and of the con-
tinent, while all attempts to acquire them by force must meet with the
most annoying and injurious hindrance and resistance. This is equally
true of Mexico and of. every portion of the American continent. It
is more than a hundred years since any foreign state has success-
fully i)l;uited a new colony in America, or even strengthened its hold
upon any one previously existing here. Through all the social disturtj-

513

CHAP. III.] RECOGNITION OF BELLIGERENCY. [§ 69.

ances which attend a change from the colonial state to independence,
and the substitution of the democratic for the monarciiical system of
government, it ^still seems to us that the Spanish-Ainericim states are
stoadil}' advancing towards the establishment of permanent institutions
of self government. It is the interest of the United States to favor this
l)rogress, and to commend it to the patronage of other nations. It is
equally the interest of all other nations, if, as we confidently believe,
this progress offers to mankind the speediest and surest means of ren-
dering available to them the natural treasures of America."

Mr. Seward, Sec. of State, to Mr. Dayton, Apr. 24, 1863. MSS. lust., France.
Dip. Corr., 1863.

" This Government insists now in these cases, as it insisted in the
beginning of our domestic strife, that the decisions of the Emi)eror's
Government, like those of other maritime powers, by which the insur-
gents of this country, without a port or a ship or a court of admiralty,
are recognized by France as a naval belligerent, are in derogation of
the law of nations and injurious to the dignity and sovereignty of the
United States, that they have never approved or acquiesced in those
decrees, and that they regard these late proceedings in relation to the
Florida and Georgia, like those of a similar character which have oc-
curred in previous cases, as just subjects of complaint. The same
views are entertained so far as they apply to the new maritime regula-
tions. We claim that we are entitled to have our national vessels re-
ceived in French ports with the same courtesy that we ourselves extend
to French ships of war, and that all real or pretended insurgent vessels
ought to be altogether excluded from French i)orts. We expect the
time to come, and we believe it is not distant, when this claim will be
acknowledged by France to be both reasonable and just."

Mr. Seward, Soc. of State, to Mr. Dayton, Mar. 21, 1864. MSS. lust., France.
See farther, as to recoguitiouof Confederate belligerency, Senate Ex. Doc. No.

11, 41st Cong., 1st 80SS. ; and see also 2 Phill. Int. Law (3d ed.), 23.
As sustaining the recognition of the Confederate Government as belligerent,

see speech of Sir George Come wall Lewis, Oct. 17, 1862, cited in 1 Lawrence

com. snr droit int., 200.

" The President does not deny, on the contrary he maintains, that
every sovereign power decides for itself, on its responsibility, the ques-
tion whether or not it will, at a given time, accord the status of belliger-
ency- to the insurgent subjects of another power, as also the larger ques-
tion of the independence of such subjects and their accession to the
family of sovereign states.

" But the rightfulness of such an act depends on the occasion and
the circumstances, and it is an act, like the sovereign act of war, which
the morality of the public law and practice requires should be deliber-
ate, seasonable, and just, in reference to surrounding facts ; national
belligerency, indeed, Uke national independence, being but an existing
S. Mis. J62— YOL. I 33 513

§ 69.] INTERVENTION. [CHAP. III.

fact, officially recognized as such, without which such a declaration is
only the indirect manifestation of a particular line of policy."

Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869. MSS. :^n8t., Gr. Brit.

" But circumstances might arise to call for it. A ship of the insur-
gents might appear in the port of the neutral, or a collision might
occur at sea, imposing on the neutral the necessitj' to act. Or actual
hostility might have continued to rage in the theater of insurgent war,
combat after combat might have been fought for such a period of time,
a mass of men may have engaged in actual war until they should have
acquired the consistency of military power, to repeat the idea of Mr.
Canning, so as evidently to constitute the fact of belligerency, and to
justify the recognition by the neutral. Or the nearness of the seat of
hostilities to the neutral may compel the latter to act; it might be his
sovereign duty to act, however inconvenient such action should be to
the legitimate Government."

Mr. Fish, Sec. of State, to Mr. Motley, Sept. 25, 1869. MSS. lust., Gr. Brit.

"The question of according or withholding rights of belligerency
must be judged, in every case, in view of the particular attending facts.
* * * This conflict must be one which will be recognized in the sense
of international law as war. Belligerency, too, is a fact. The mere ex-
istence of contending armed bodies, and their occasional conflicts, do
not constitute war in the sense referred to."
President Grant, Seventh Annual Message, 1875.

Prior to the acknowledgment by the United States of the independ-
ence of the southern Spanish-American colonies, informal agents were
sent to them by the President (see supra, §47); but (li])lomatic agents
from several of these states were refused at the same time ofiicial diplo-
matic recognition at Washington, though personally received.

See Abdy's Kent, 135; Dana's Wheaton, note 121.

Mr. Seward (Ex. Doc. 20, 39th Cong., cited in Dana's Wheaton, note
41; Mr. Seward to Mr. Bigelow, Mar. 13, 1865, Dip. Corr., 1805, pt. 3,
378) took the ground that the United States Government would decline
to bold intercourse, ofiicial or unofficial, with agents from insurgents
against Governments with whom the United States were at peace. But
when a belligerent is recognized as such, this implies an intercourse,
at least between agents, in reference to terms of belligerency. This in-
tercourse may be very informal, and, when between belligerents who are
parties to a civil war, may for a time be limited to negotiations *for
exchange of prisoners and for cognate objects. But, as in the case of
the late civil war in the United States, the sovereign against whom the
insurrection is directed, will, from the necessity of the case, hear inform-
ally and unofficially agents from belligerent insurgents as to terms of
surrender.

As to reception, informallj-, by Mr. Seward of agents of the unrecognized Gov-
ernment of Maximilian, see infra, ^ 70. See also Mr. Blaine, Sec. of State,
to Mr. Fish, Apr. 5, 1881. MSS, Inst., Switz, quoted infra, $ 70,

CHAP. III.] RECOGNITION OF BELLIGERENCY. [§ G9.

Admitting a sovereign, who is endeavoring to reduce liis revolted
subjects to obedience, to possess both sovereign and belligerent lights,
and to be capable of acting in either character, the manner in wliicli he
acts must determine the character of the act; i. e., whether it is an ex-
ercise of belligerent rights or exclusively of his sovereign power.

Rose V. Himely, 4 Cranch, 241.

"A civil war," said Judge Grier, giving the opinion of the Sni)reme
Court in the Prize Cases, 2 Black, C67, " is never solemnly declared; it
becomes such by its accidents — the number, power, and organization
of the persons who originate and carry it on. When the party in rebel-
lion occupy and hold in a hostile manner a certain ])ortiou of territory;
have declared their independence; have cast off their allegiance; have
organized armies ; have commenced hostilities against their former
sovereign, the world acknowledges them as belligerents and the contest
a war."

"To the Confederate Government was conceded, in the interest of
humanity, and to prevent the cruelties of reprisals and retaliation, such
belligerent rights as belonged, under the law of nations, to the armies
of independent Governments engaged in war against each other. The
Confederate States were belligerents in the sense attached to that word
by the law of nations."

Hiirlan, J., Ford v. Surget, 97 U. S., 594.

As to recognition by the United States of the belligerency of foreign insurgents,

see the Divina Pastora, 4 Wheat., 52 ; the Neustra Senora, ibid., 497.
That this applies to the question of the recognition of a State government by

the Federal Government, see Luther v. Borden, 7 Howard, 1.

" There may be a difficulty in ascertaining when the fact of war
begins, and this difficulty is the greater in cases of insurrection or revolt,
where many of the antecedents and premonitory tokens of war are
wanting, where an insurrection may be of little account and easily sup-
pressed, and where war bursts out full-blown, it may be, at once. Our
Government has more than once i^rofessed to govern its action by the
following criteria expressed in Mr. Monroe's words relating to the
Spanish South American revolts : 'As soon as the movement assumes ■
such a steady and consistent form as to make the success of the prov-
inces i)robable, the rights to which they were entitled by the law of
nations, as equal parties to a civil war, have been extended to them.'
But 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 detinition 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 i)robability of success the
criterion of right in the case, you have to weigh other circumstances
before being able to judge wliich is most probabh', success or defeat.
Would you, if you conceded belligerent rights, withdraw the concession
whenever success ceased to be probable ? And, still further, such prov-
inces in revolt are not entitled by the law of nations to rights as equal
parties to a civil war. Thej' have properly no rights, and the conces-
sion of belligerency is not made on their account^ but on account of con-

515

§ CO.] INTERVENTION. [CHAP. III.

siderations of policy on the part of the state itself which declares them
such, or on grounds of humanity.

'• Trcitcdcnts are to be drawn chiefly from modern times. The revolt
of the low countries was hardly an analogous case, for they were states
having their especial charters, not connected with Si)aiu, except so far
as the King of Spain was their suzerain. In our Revolutionary war,
precedent was not all on one side. Great Britain stoutly declared Paul
Jones to be a pirate, because he was a British subject under commission
from revolting colonies, and Denmark agreed to this. In the South
American revolutions, the concessions of belligerent rights were given
freely by neutrals, most freely by the United States ; and, as for proc-
lamations, our Government went so far as to issue one, in 1838, ' for
the prevention of unlawful interference in the civil war in Canada,'
where no civil or military organization had been set up. The true time
for issuing such a declaration, if it is best to issue it "at all, is when a
revolt has its organized Government prepared by law for war on either
element or on both, and when some act, involving the open intention
and the fact of war, has been performed by one or both of the parties.
Here are two facts, the one political, the other pertaining to the acts of
a political body. The fact of war is either a declaration of w^ar or some
other implying it, like a proclamation of blockade, or, it may be, actual
armed contest.

" Was there, then, a state of war when the British proclamation of
neutrality was given to the world, or did the facts of the case justify
the British Government in the sui)position that such a state of war ex-
isted ? Here everything depends on facts and on opinions derived from
facts. We find opinions expressed by eminent men among ourselves
in the first half of May, 1861, that war had already begun, which some
of them conceived of as beginning with the attack on Fort Sumter. We
find a number of States seceding from the Union, whose territories made
a continuous whole, which formed a constitution, and chose public offi-
cers, a President among the rest. This President made a proclamation
touching letters of marque and reprisal, and told his congress that two
vessels had been purchased for naval warfare. We find next two proc-
lamations of the President of the United States, one of April 15, call-
ing for a large force of the militia of the States, and another of April
19, after the proclamation of the Confederate President inviting letters
of marque and reprisal had become known at Washington, announcing
an intention to set on foot a blockade. On the 6th of May, the South-
ern Congress sanctioned the proclamation concerning letters of marque,
recognized a state of war, and legislated on cruisers and capture. We
l)ass over many acts of violence, such as seizures of forts and other
])ublic property within the Confederate States. Intelligence of Presi-
dent Lincoln's blockade reached London on the evening of May 2.
Copies of it were there received between the 5th of May and the 11th.
On the 13th the Queen's proclamation of neutrality was issued.

" The President's i)roclamation of blockade announced a measure
which might have important international consequences. It was, in
fact, a declaration of a state of war on the sea. ' He deemed it advis-
able,' he says, ' to set on foot a blockade, in pursuance of the laws of
the United States and of the laws of nations.' And vessels exposing
themselves to penalty for violating the blockade would be ' captured
and sent to the nearest convenient port, for such proceeding against
them and their carjjoes, as prize, as might be deemed advisable.' Sev-
eral neutral vessels were captured between April 19 and July 13, on

516

CHAP. III.] tiiECOGNlTlON OP BELLIGERENCY. [§ 69.

whirli last day Congress sauctioiietl the proceedings of tlie Government*
The validity of the captures came before the Siii)reme Court, and the
question when the war began became a very imjjortant one. The conrt
decided that the President had aright,,/Mre ^d//, to institute a blockade
of i)orts in the possession of the rebellious States, and that blockade
was an act of war.

" It would seem, then, that if the British Government erred in think-
ing that the war begau as early as Mr. Lincoln's proclanuition in ques-
tion, they erred in company with our Supreme Conrt. (See the 'Ala-
bama question,' New Englander for July, 18G9 ; Black's Keports, ii,
035 ff.; Dana on Wheaton, 374, 375; Lawrence's Wheaton (2d ed.,
sni)plem.), p. 13; and Pomeroy's Introd. to Constit. Law, §§ 447-453.)"

Woolsey, Int. Law, app. iii, note 19.

"The occasion for the accordance of belligerent rights arises when a
civil conflict exists within a foreign state. The reason which requires
and can alone justify this step by the Government of another country
is that its own rights and interests are so far aflected as to require a
definition of its own relations to the parties. Where a parent Govern-
ment is seeking to subdue an insurrection by municipal force, and the
insurgents claim a political nationality and belligerent rights which the
parent Government does not concede, a recognition by a foreign state
of full belligerent rights, if not justified by necessity, is a gratuitous
demonstration of moral support to the rebellion, and of censure upon
the parent Government. But the situation of a foreign state with refer-
ence to the contests, and the condition of affairs between the contend-
ing parties, may be such as to justify this act. It is important, there-
fore, to determine what state of affairs, and what relations of the foreign
state, justify the recognition.

" It is certain that the state of things between the parent state and
insurgents must amount, in fact, to a ira>\ in the sense of international
law — that is, powers and rights of war must be in actual exercise;
otherwise the recognition is falsified, for the recognition is of a fact.
The tests to determine the question are various, and iar more decisive
where there is maritime war and commercial relations with foreigners.
Among the tests are the existence of a de facto political organization
of the Insurgents sufficient in character, population, and resources to
constitute it, if left to itself, a state among the nations, reasonably capa-
ble of discharging the duties of a state ; the actual employment of mil-
itary forces on each side, acting in accordance with the rules and cus-
toms of war, such as the use of flags of truce, cartels, exchange of
prisoners, and the treatment of captured insurgents by the parent state
as prisoners of war; and, at sea, employment by the insurgents of com-
missioned cruisers, and the exercise by the parent Government of the
rights of blockade of insurgent ports against neutral commerce, and of
stopping and searching neutral vessels at sea. If all these elements
exist, the condition of things is undoubtedly war ; and it may be war
before they are all ripened into activity.

"As to the relation of the foreign state to the contest, if it is solely
on laud, and the foreign state is not contiguous, it is difficult to imagine
a call for the recognition. If, for instance, the United States should
formally recognize belligerent rights in an insurgent community at the
center of Europe, with no sea-])orts, it would require a hardly supposable
necessity to make it else than a mere demonstration of moral support.
But a case may arise where a foreign state must decide whether to hold

517

\^ no.] INTERVENTION. [CHAP. III.

the pfirent state responsible for acts done by the insurgents, or to deal
with the insurgents as a de facto (government. (Mr. Canning to Lord
(hanville on tlie Greek war, June 22, 182G.) If tlie foreign state recog-
nizes belligerency in the insurgents, it releaees the i)arent state from
responsibility for whatever may be done by the insurgents, or not done
by the i)arent state where the insurgent power extends. (Mr. Adams
to Mr. Seward, June 11, 1801, Di]). Oorr., 105.) In a contest wholly ui)on
land, a contiguous state may be obliged to make the decision whether
or not to regard it as a war; but, in practice, this has not been done by
a general and i)rospective declaration, but b}" actual treatment of (;ases
as they ari.se. Where the insurgents and the parent state are maritime,
and the foreign nation has extensive commercial relations and trade at
the ])orts of both, and the foreign nation and either or both of the con-
tending ])arties have considerable naval force, and the domestic contest
must extend itself over the sea, then the relations of the foreign state
to this contest are far different.

" In such a state of things the liability to political complications,
and the questions of right and duty to be decided at once, usually away
from home, by private citizens or naval officers, seem to require an
authoritative and general decision as to the status of the three parties
involved. If the contest is a war, all foreign citizens and officers,
whether executive or judicial, are to follow one line of conduct; if it
is not a war, they are to follow a totally different line. If it is a war
the commissioned cruisers of both sides may stop, search, and capture
the foreign merchant vessel, and that vessel must make no resistance
and must submit to adjudication by a prize court ; if it is not a war,
the cruisers of neither party can stop or search the foreign merchant
vessel ; and that vessel may resist all attempts in that direction, and
the ships-of-war of the foreign state may attack and capture any cruiser
persisting in the attempt. If it is war, foreign nations must await the
adjudication of prize tribunals ; if it is not war, no such tribunal can be
opened. If it is war, the pareit state may institute a blockade j'wre
gentium of the insurgent ports, which foreigners must respect; but if
it is not a war, foreign nations having large commercial iiitercourse with
the country will not respect a closing of insurgent ports by paper de-
crees only. If it is a war, the insurgent cruisers are. to be treated by
foieign citizens and officials, at sea and in port, as lawful belligerents;
if it is not a war, those cruisers are pirates, and may be treated as such.
If it is a war, the rules and risks respecting carrying contraband, or
disi)atches, or military persons, come into play; if it is not war, they
do not. Within foreign jurisdiction, if it is a war, acts of the insur-
gents in the way of preparation and equipments for hostility may be
breaches of neutrality laws; while, if it is not war, they do not come
into that category, but under the category of piracy or of crimes by
municipal law.

" Now, all citizens of a foreign state, and all its executive officers and
judicial magistrates, look to the ])olitical department of their Govern-
ment to prescribe the rule of their conduct in all their i)ossible relations
with the parties to the contest. This rule is prescribed in the best and
most intelligible manner for all possible contingencies by the simple
declaration that the contest is or is not to be treated as war. If the
state of things requires the decision, it must be made by the political
department of the Government. It is not fit that cases should be left
to be decided as they may arise, by i)rivate citizens, or naval or judicial
officers, at home or abroad, by sea or land. It is, therefore, the custom

518

CHAP. III.] BELLIGERENCY. [§ 69.

of nations for the ])olitical d('i)artnieiit of a foieij^ii sfate to make the
decision. It owes it to its own citizens, to the conteudiujj; parties, and
to the peace of the world, to make that decision seasonably. If it issues
a formal declaration of belligerent rights prematurely, or in a contest
with which it has no complexity, it is a gratuitous and unfriendly act.
If the i)arent Government com])lains of it, the comjjlaint must be made
upon one of these grounds. To decide whether the recognition was
uncalled for and premature requires something more than a considera-
tion of proximate facts and the overt and formal acts of the contending
l)arties. The foreign state is bound and entitled to consider the pre-
ceding history of the parties; the magnitude and completeness of the
l)olitical and military organizations and preparations on each side; the
l)robable extent of the conflict by sea and land ; the probable extent
and rai)idity of its development ; and, above all, the i)robability tliat its
own merchant vessels, naval officers, and consuls may be i)recipitated
into sudden and difficult complications abroad. The best that can be
said is, that the foreign state may protect itself by a seasonable decis-
ion — either upon a test case that arises or by a general prospective
decision — while, on the other hand, if it makes the recognition prema-
turely, it is liable to the suspicion of an unfriendly purpose to the par-
ent state. The recognition of belligerent rights is not solely to the
advantage of the insurgents. They gain the great advantage of a rec-
ognized status, and the opportunity to employ commissioned cruisers
at sea, and to exert all the powers known to maritime warfare, with the
sanction of foreign nations. They can obtain abroad loans, military
and naval materials, and enlist men, as against everything but neu-
trality laws; their flag and commissions are acknowledged, their reve-
nue laws are respected, and they acquire a quasi-imlitical recognition.
On the other hand, the parent Government is relieved tVom responsi-
bility for acts done in the insurgent territory; its blockade of its own
])orts is respected ; and. it acquires a right to exert, against neutral com-
merce, all the powers of a party to a maritime war."

Mr. Dana, note to Daua's Wheaton, ^ 23.

This passage is cited by Sir A. Cockbuin in bis opinion in the Geneva Ti-i-
bnnal, with the foUowing prefix: "The principles by which a nentral state
shonbl be goveined as to the circnnistances nnder which, or the period at
which, to acknowledge the belligerent status of insnrg(;nts, havc^ l)een no-
where more fully and ably, or more fairly, stated than by Mr. Dana, in his
edition of Wheaton, in a note to section 23."

" It has been the constant practice of European nations, and of the
United States, to 'look upon iDelligerency as a fact rather than a prin-
ciple,' holding with Mr. Canning, 'that a certain degree of force antl
consistency acquired by a mass of population engaged in war entitled
that ])opulation to be treated as belligerent.' Inst;inces, too, are numer-
ous, from the time when the North American colonies threw otT the
yoke of England, down to the period when, at an early stage of hostili-
ties between the United States and the Confederate States, it was
resolved by the Governments of England and France to treat the South-
ern Confederacy in accordance with acknowledged principles as a bellig-
erent."

Alidy's Kent (1878), 94, citing Hansard, vol. clxii, p. 15GG. Annual Reg., 1861,
p. 114.

519

^09.] INTERVENTION. [cHAP. lit

" It is easy to see what they (the United States) gained (by the
aclinowledgment of Confederate belligerency). They gained the liberty
to exercise against British ships on the high seas tlie rights of visit and
search, of cai)turiug contraband, and of blockade, rights which spring
solely from the relation of belligerent and neutral, and which the neu-
tral acknowledges by recognizing the existence of that relation. The
advantages reaped in maritime war from the exercise of such rights
fall where there is a disparity of force, into the hands of the stronger
belligerent; where the <lisparity is great he has a monopoly of them,
for he is able to shut up his enemy in port and drive him from the sea."

Bernard's Neutrality of Gr. Brit., 167.

" The steadfast determination of the Government neither to say nor do
anything which could reasonably be coustrued into an interference, was
tested in November, 1862, when it was proposed by the Emperor of the
French that the Courts of France, Russia, and Great Britain should
tender their good ofBces to both belligerents, in the hope of preparing
the way for an accommodation. M. Drouyu de I'Huys, in addressing
himself to the British Government, dwelt on the ' innumerable calami-
ties and immense bloodshed' which attended the war, and on the evils
which it inflicted upon Europe. The two contending parties, he said, had
up to that time fought with balanced success, and there appeared to be
no probability that the strife would soon terminate. He projjosed, there-
fore, that the three courts should join in recommending an armistice for
six months, during which means might be discovered for effecting a last-
ing pacification. The British Government declined to take partin such a
recommendation, being satisfied that there was no reasonable prospect of
its being entertained by that of the United States. ' Depend upon it, my
lords,' said Earl Russell, addressing the House of Peers in 1863, ' that,
if this war is to cease, it is far better that it should cease by a convic-
tion both on the part of the IS'orth and on that of the South that they
can never live together again happily as one community and as one
Republic, and that the termination of hostilities can never be brought
about by the advice, the mediation, or the interference of any European
power.'"

Ibid., 467.

Where the people of a Republic are divided into two hostile parties,
who take up arms and oppose one another by military force, civil war
exists, without regard to the cause of the dispute. A revolutionary
party, like a foreign belligerent power, is supreme over the country it
conquers as far and as long as its arms can carry and maintain it.
Foreign vessels obtaining and using licenses and clearances from such a
party, are not liable to punishment by the other party afterwards for so
doing.

9 Op., 140, Black, 1858.

As to recognition of United States belligerency by France and Holland during

the American Eevolntion, see Annual Reg., 1779, 249.
As to Danish recognition of the belligerency of the United States during the

American Revolution, see 3 Sparks's Dip. Corr., 121 ; 8 Sparks's Life of

Franklin, 407.
As to distiuctiou between "insurgency" and " belligerency," see 33 Alb. Law

J., 125, Feb. 13, 1886.
As to recognition of insurgency as a preliminary to belligerency, see infra, ^ 381.
That Confederate cruisers were not pirates, see infra, ^ 381.

6;i0

CHAt>. III.] RECOGNrriON OF SOVERfttGNtY. [$ 70.

VI. RECOGNITION OF SOVEREIGNTY.

§70.

" I am perfectly sensible that your situation must, ere this reaches
you, have beeu delicate and difficult; and thoujjh the occa.siou is
probably over, and your part taken of necessity, so that instructions
now would be too late, yet 1 think it just to express our sentiments on
the subject as a sanction of what you have probably done. Whenever
the scene became ])ersonally dangerous to you, it was proper you should
leave it, as well from personal, as public motives. But what degree of
danger should be attended, to what distance or place you should retire,
are circumstances which must rest with your own discretion, it being
impossible to prescribe them from hence. With what kind of Govern-
ment you may do business is another question. It accords with our
principles to acknowledge any Government to be rightful which is formed
by the will of the nation, substantially declared. The late Government
was of this kind, and was accordingly acknowledged by all the branches
of ours; so any alteration of it which shall be made by the will of
the nation, substantially declared, will doubtless be acknowledged in.
like manner. With such a Government every kind of business may:
be done. But there are some matters which T conceive might be traits*;-
acted with a Government de facto, which, for instance, as the refornimg"
the unfriendly restrictions on our commerce and navigation, such as you
will readily distinguish as they occur. With resi)ect to this particular
reformation of their regulations, we cannot be too pressing for its attain-
ment, as every day's continuance gives it additional firmness, and en-
dangers its taking root in their habits and constitution ; and,.indeed, I
think they should be told, as soon as they are in a condition to act, that
if they do not revoke the late innovations, we must lay adtiition and.
equivalent burdens on French ships by name."

Mr. Jefifersoii, Sec. of State, to Mr. Morris, Nov. 7, 1792. MSS. Iiust., Miuist^cs;.

" The royal family left Paris on the 19th instant, at midnight, ansd!
took the road for Lille. Yesterday morning I received a note from Count
Jarcourt stating the departure of the King, and informing me that he
would see with pleasure the diplomatic corps, without, however, con-
straining those who prefer to return to their resjjective courts. » * *
The Em])eror has not yet api)ointed his minister of foieigii relations. 1
think it is jnobable Caulaincourt wiM bo appointed. 1 shall endeavor
to see the minister shortly after his appointment lor business purposes
which are specified."

Mr. Crawford, minister at Paris, to Mr. Mouroo, Sec. of State, (miofticial), Mar.
21, 181.5. Monroe Pap., Dept. of State.

"There is a stage in such (revolutionary) contests when the parfty/
struggling for independence has, as I conceive, a right to demand its ;
acknowledgment by neutral parties, and when the acknowledgment mav/

521

§ 70.] INTERVENTION. [cHAP. III.

be griinted williout departure from tlie obligations of neutrality. It
is the stage wheu the independence is established as matter of fact,
so as to leave the chance of the opposite party to recover their domin-
ion utterly desperate. The neutral nation must, of course, judge for
itself when this period has arrived; and as the belligerent nation has
the same right to judge for itself, it is very likely to judge differently
Iroiu the neutral, and to make it a cause or pretext for war, as Great
Ijritain did expressly against France in our Revolution, and substantially
iigainst Holland. If war thus results, in point of fact, from the meas-
ure of recognizing a contested independence, the moral right or wrong
of the war depends upon the justice and sincerity and prudence with
which, the recognizing natiou took the step. I am satisfied that the
cause of the South Americans, so far as it consists in the assertion of
independence against Spain, is just. But the justice of a cause, how-
ever it may enlist individual feelings in its favor, is not sufficient to
justify third parties in siding with it. The fact and the right com
bined can alone authorize a neutral to acknowledge a new and disputed
sovereignty."

Mr. Adams, Sec. of State, to Mr. Monroe, President, Aug. 24, 1816. MSS.

Monroe Pap., Dept. of State.
President Monroe's message of Mar. 25, 1818, giving the papers in the Depart-
ment relative to South American independence down to that date, is con-
tained in House Doc. No. 293, Ist sess., 15th Cong., 4 Am. St. Pap. (For.
Rel.), 173 ff. President Monroe's message of Jan. 29, 1819, on the same
subject, with the accompanying papers, is contained in House Doc. No.
309, 2d sess., 15th Cong. ; 4 Am. St. Pap. (For. Rel.), 412. ^

As to the effort of the allied European powers to prevent the recognition of the
independence of the South American colonies by the United States, see
Mr. Gallatin, minister at Paris, to Mr. Adams, Sec. of State, Aug. 10,1818.
2 Gallatin's Writings, 73.

"I had upon every occasion stated that the general opinion of the
United States must irresistibly lead to such a recognition; that it is a
question, not of interest, but of feeling, and that this arose much less
Irom the wish of seeing new Rei)ublics established than that of the
emancipation of Spanish America from Euro]ie. * * * \Ve had not,
either directly or indirectly, excited the insurrection. It had been the
siwntaneous act of the inhabitants, and the natural efiect of causes
which neither the United States nor Europe couki have controlled.
We litid lent no assistance to either party; we had preserved a strict
neutrality. But no European Government could be surprised or dis-
pleased that in such a cause our wishes should be in favor of the suc-
cess of the colonies, or that we should treat as independent j^owers
those amongst them which had in fact established their independence."

Mr. Gallatin, minister at Paris, to Mr. J. Q. Adams, Sec. of State, Nov. 5, 1818.
2 Gallatin's Writings, 75.

'• But while this state of things continues, an entire equality of treat-
ment of the parties is not possible. There are circumstances arising
from the nature of the contest itself which produce unavoidable in-
equalities. Spain, for instance, is an acknowledged sovereign jiower,
522

CHAP. IT.] TtEC0GNITIO?\ OF SOVEREIGNTY [§ 70.

luul, as such, has ministers and other accredited and privileged agents
to maintain her interest and snpport her rights ooiiforiiiahly to the
usages of nations. The South Americans, not being acknowledged as
sovereign and independent states, cannot have the benefit of such offi-
cers. We consider it, however, as among the obligations of neutrality
to obviate this inequality, as far as may be practicable, without taking
a side, as if the question of the war was decided. We listen, therefore,
to the representations of their deputies or agents, and do them justice
as much as if they were formally accredited. By acknowledging the
existence of a civil war, the right of Spain, as understood by herself, is
no doubt, affected. She is no longer recognized as the sovereign of the
provinces in revolution against her. Thus far neutrality itself operates
against her, and not against the other party. This also is an inequal-
ity arising from the nature of the struggle, unavoidable, and therefore
not incompatible with neutralitj'."

Mr. Adams, Sec. of State, to Mr. Rush, Jan. 1, 1819. MSS. Inst., Ministers.

The correspondence of the United States with Spain, Buenos Ayres, Cliili,
Colombia, and Mexico, relative to the independence of the Spanish-Ameri-
can states, is given in the Brit, and For. St. Pa]), for 1821-22, vol. 9, p. 369.

Papers relative to the political condition of Spanish South America are given
in President Monroe's messages of Mar. 8 and Apr. G, 1822, House Doc. No.
327, 17th Cong., 1st sess. 4 Am. St. Pap. (For. Rol.), 318.

" In every question relating to the independence of a nation tw^o
principles are involved, one of 7-ight and the other of fact ; the former
exclusively depending upon the determination of the nation itself, and
the latter resulting from the successful execution of that determination.
This right has been recently exercised as well by the Spanish nation in
Euroj)e as by several of those countries in the American hemisphere
which had for two or three centuries been connected, as colonies, with
Spain. In the conflicts which have attended these revolutions the
United States have carefully abstained from taking any part, respect-
ing the right of the nations concerned in them to maintain or reorganize
their own political constitutions, and observing, wherever it was acoi»
test by arms, a most impartial neutrality ; but the civil war in which
Spain was for some years involved with the inhabitants of her colonies
in America has, in substance, ceased to exist. Treaties equivalent to
an acknowledgment of independence have been concluded by the com-
manders and viceroys of Spain herself with the Republic of Colombia,
with Mexico, and with Peru, while in the provinces of La Plata and in
Chili no Spanish force has for several years existed to dispute the in-
dependence which the inhabitants of those countries had declared.

" Under these circumstances, the Government of the United States,
far from consulting the dictates of a policy questionable in its morality,
yielded to an obligation of duty of the highest order by recognizing as
independent states nations which, after deliberately asserting their

523

§ 70.] INTERVENTION. [cHAP. III.

right to that character, have maintained and established it against all
the resistance which had been or could be brought to oppose it. This
recognition is neither intended to invalidate any right of Spain, nor to
afiect the employment of any means which she may yet be disposed or
enabled to use with the view of reuniting those provinces to the rest of
lier dominions. It is the mere acknowledgment of existing facts with
the view to the regular establishment with the nations newly formed of
those relations, political and commercial, which it is the moral obliga-
tion of civilized and Christian nations to entertain reciprocally with
•one another."

Mr. Adams, Sec. of State, to Mr. Andnaga, Apr. 6, 1822. MSS. For. Leg. Notes.
That the recognition by the United States, in March, 1822, of the independence
of the Spanish-American colonies was received with satisfaction in England,
and was "not generally unfavorably received," see Mr. Gallatin, minister at
Paris, to Mr. J. Q. Adams, Sec. of State, Apr. 26, 1822. 2 Gallatin's Writ-
ings, 240.

'-'"Mr.Anduaga, I observe, casts in our teeth the postponement of the
tvicQgnition of Spanish America till the cession of Florida was secured,
audtaldng that step immediately after. This insinuation will br so readily
embiraced by suspicious minds, and particularly by tlie wily cabinets of
Europe, that I cannot but think that it will be well to take away that
])retext against us by an expose brought before the public in some due
lorm in which our conduct would be seen in its true light. An historical
view of the (early sentiments in liivor of our neighbors expressed here,
tlie successive vsteps openly taken manifesting our sympathy with their
cause and our anticipation of its success, more especially our declaration
•of neutrality towards the contending parties as engaged in a civil, not
an insurrectionary, war, would show to the world that we never con-
'cealed the principles that governed us, nor the policyVhich terminated
iin the decisive step last taken."

Mr. Madison to President Monroe, May 6, 1822. (Unofficial) Monroe Pap. MSS.
Dept. of State. 3 Madison's Writings, 267.

"When a sovereign has a reasonable hope of maintaining his authority
♦crrea* insurgents, the acknowledgment of the independence of snch in-
surgents would be an international wrong. It is otherwise when such
sovereign is manifestly disabled from maintaining the contest.

Mr. Adams, Sec. of State, to Mr. Anderson, May 27, 1823, in which letter is given
a history of the action of the United States to the revolted colonies in South
America, ending in their recognition. MSS. Inst., Ministers.

Mr. Salazar, the Minister from Colombia, stated lately, by order of
Iliis Government, that a French agent was expected at Bogota, having
•.already arrived at the port, with power to treat with his Government
vrespecting its independence. He observed that his Government had
U»e.en advised, from an authentic source, that the Government of France
•w©uld acknowledge its independence on one condition, the establishment
of monarchy, and leave the person to be placed in that station, to the
pt;»^ple of Colombia ; that Bolivar would not be objected to if preferred
.524

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

by them. He asked, should the proposition be rejected and France be-
come hostile in consequence, what part the United States would take
in that event. What aid might they expect from us? The subject will
of course be weighed thoroughly in giving the answer. The Execu-
tive has no right to compromit the nation in any question of war, nor
ought we to i^resume that the people of Colombia will hesitate as to
the answer to be given to any proposition which touches so vitally their
liberties.

President Monroe to Mr. Madison, Aug. 2, 1824. Madison MSS. Uept. of State.

''In considering that war (between Spain and her colonies), as in
considering all others, we should look back upon the past, deliberately
survey its present condition, and endeavor, if possible, to catch a view
of what is to come. With respect to the first branch of the subject, it
is, perhaps, of the least practical importance. No statesman can have
contemplated the colonial relations of Europe and continental America
without foreseeing that the time must come when they would cease.
That time might have been retarded or accelerated, but come it must
in the great march of human events. An attempt of the British Par-
liament to tax without their consent the former British colonies, now
these United States, produced the war of our Eevolution, and led to
the establishment of that independence and freedom which we now so
justly prize. Moderation and forbearance on the part of Great Britain
might have postponed, but could not have prevented, our ultimate sep-
aration. The attempt of Bonaparte to subvert the ancient dynasty of
Si)ain, and to place on its throne a member of his own family, no doubt
hastened the independence of the Spanish colonies. If he had not been
urged by his ambition to the conquest of the peninsula, those colonies,
for a long time to come, might have continued quietly to submit to the
parental sway. But they must have inevitably thrown it off, sooner or
later. We may imagine that a vast continent, uninhabited or thinly
peopled by a savage and untutored race, may be governed by a remote
country, blessed with the lights and possessed of the power of civiliza-
tion, but it is absurd to suppose that this same continent, in extent
twenty times greater than that of the parent country, and doubling it
in a population equ;,illy civilized, should not be able, when it chooses to
make the efibrt, to cast oft" the distant authority. When the epoch of
separation between a parent state and its colonj'^, from whatever cause,
arrives, the struggle for self-government on the one hand, and for the
preservation of power on the other, produces mutual exasperation and
leads to a most embittered and ferocious war. It is then that it becomes
the duty of third i^owers to interpose their humane offices, and calm the
passions and enlighten the counsels of the parties. And the necessity
of their eftbrts is greatest with the parent country, whose pride and
whose wealth and power, swelled by the colonial contributions, create

525

§ 70.] INTERVENTION. * [CHAP. III.

the, most repugnance to an acquiescence in a severance which has been
ordained by Providence."

Mr. Clay, Sec. of State, to Mr. Middletoii, May 10, 1825. MSS. lust., Miuisters.
Brit, and For. St. Pap. (13-25-'26), vol. 1.-?, p. 403.

The correspoudence in 1 826 with Spain, in respect to the independence of Span-
ish America will be found in the Brit, and For. St. Pap. for 1828-'29, vol. 10,
856. See also 2 Phill. Int. Law (3d ed.), 545 ; 5 J. Q. Adams's Mem., 488,
489, 491.

The following is from Mr. J. C. Bancroft Davis's notes to the Treaties
of the United States :

"At the opening of the first session of the Twelfth Congress the
House referred to a select committee the part of the President's mes-
sage relating to the Spanish-American colonies. (1 Annals, 1st sess.
12th Cong., 335.) The committee on tlie 10th of December reported a
joint resolution that 'the Senate and House "of Eepresentatives will
unite with the Executive in establishing with them as foreign and in-
dependent states such amicable relations and commercial intercourse
as may require their legislative authority.' [Ibid.^ 428, and 3F. R., F.,
538.) A letter from Monroe, then Secretary of State, transmitting a copy
of the declaration of independence of Venezuela, and saying that he had
no information that any other of the Sj)anish provinces had entered
into similar declarations, accompanied the resolution as reported by the
committee. (Ibid., 539.) The resolution was allowed to drop.

" On the 5th of December, 1817, the House requested the President
to lay before it ' such information as he may possess and think proper
to communicate relative to the independence and political condition of
the provinces of Spanish-America. (1 Annals, 1st sess. 15th Cong.,
406-8.) This appears to have been called out by the message of Presi-
dent Monroe on the 2d of December, in which he stated that persons
claiming to act under the authority of some of the colonies had taken
possession of Amelia Island, off the coast of Florida, and had made of
the island a channel for the illicit introduction ot slaves from Africa into
the United States, an asylum lor liigitive slaves from the neighboring
states, and a port for smuggling of every kind. (Ibid., 14.)

"Before the President replied to the resolution, the forces of the
United States had occupied Amelia Island. Upon this ' Vincente Pazos,
representing himself as the dejiuted agent of the authorities acting in
the name of the Republics of Venezuela, New Granada, and Mexico,'
presented to the House of Representatives, through the Speaker, on the
11th of March, 1818, a memorial complaining of that occupation. (An-
nals, 1st sess. 15th Cong., 1251.) An animated discussion immediately
ensued. Forsyth said : 'The question then for the House to consider
was whether, when the Constitution has i)laced the conduct of our for-
eign relations with the Executive, a foreign agent shall be permitted to
appeal from the Executive to this House.' (Ibid., 1202.) The House by
a vote of 127 to 28 refused to receive the memorial. (Ibid., 1208.) (As
to Amelia Island, see supra § 50a.)

" The rejiort of the Secretary of State, in reply to the resolution of
the 5th of December, was transmitted to the House on the 25th of
March, 1818. In the interval that had elapsed a wide discussion on
Spanish-American affairs had taken place in the debates upon neutrality
laws and other germane subjects. (4 F. R., F., 173.) From this report
it appeared that the United Provinces of La Plata had applied to be
recognized as independent states.

526

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

" Iiixtraordinary ])aiiis were taken to secure accurate iiiCormatioii r<i-
Nl)ectiup^ tb(i widely-extended conflict ^oing on between Spain and licr
colonies. A commission, consisting- of Caesar A. liodney, -lolin (Iraliaiii,
and Tbeodoric Bland, was sent to Jiuenos Ayres and JMontcvidco, wiili
instructions to make full reports. Tliey did so, and tlie poliiical, social,
commercial, and industrial information wlii(;li was furnished respecting
these countries renuiinsin the i)ul)lic documents of the United Slates to
attest the writer's fidelity, intelligence, and power of giving literary
attraction to official reports. (4 F. K., F., L*17-323.) A special rejiort
on the subject was also obtained from Poinsett. {Ibid., 323.) The
whole was transmitted to Congress by the President. The general re-
sult of these reports may be summed up thus : To the east of the Andes
and south of Brazil the Government of the United Provinces of the
Kio Plata (or of South America) clainu^d a federal jurisdiction over the
whole territory, which was denied and successfully resisted by Para-
guay and by the Banda Oriental, and a state of war existed between
the United Provinces and the latter state. To the west of the Andes,
Chili was in the possession of a dictator, with no representative gov-
ernment. (As to this mission, see stipra § 47.)

"In the first session of the Fifteenth Congress two unsuccessful efforts
were made in the House to secure an appropriation for a minister to the
United Provinces. The last vote, taken on the 30th of March, 1818, was
45 yeas to 115 nays. (2 Annals, 1st sess. 15th Cong., 1055.)

"In the next session of Congress the House inquired of the President
'whether any application had been made by any of the independent
governments in South America to have a minister or consul-general
accredited by the Government of the United States.' (1 Annals, 2d
sess. 15th Cong., 544.) The President replied that Don Limo de Cle-
mente had applied to be received as the representative of the Republic
of Venezuela, and that David C. De Forest, a citizen of the United
States, had applied to be accredited as consul-general of the United
J^rovinces of South America, and he inclosed the correspondence. (4
F. R., F., 412, 418. See also 2 Annals, 2d sess. 15th Cong., Oil. For the
diplomatic correspondence with Spain respecting this and other ques-
tions through this series of years, see 4 F. R., F., 422-026.)

"In his message to Congress at the opening of the first session of the
next (the Sixteenth) Congress, President Monroe said: 'In the civil war
existing between Spain and the Spanish provinces in this hemisi)here
the greatest care has been taken to enforce the laws intended to pre-
serve an impartial neutrality. * * * The i)rogress of the war, how-
ever, has operated * * * iu favor of the colonies. Buenos Avres
still maintains unshaken the inde])endence which it declared in 1816,
and has enjoyed since 1810. Like success has also lately attended Chili,
and the provinces north of the La Plata bordering on it, and likewise
Venezuela. * * * Should it become manifest to the world that the
efforts of Spain to subdue these provinces will be fruitless, it may be
l)resumed that the Spanish Government itself will give np the contest.
In producing such a determination, it cannot be doubted that the oi)in-
ion of friendly powers, who have taken no jiart in this controversy, will
have their merited influence.' (4 F. R., F., 628.)

"Mr. Clay moved, on the 4th of April, in this session, that it was expe-
dient to provide by 'law a suitable outfit and salary for such minister
or ministers as the President, by and with the advice and consent of
the Senate, may send to any of the Governments of South America
which have established and are maintaining their independence against

527

§ 70.] INTERVENTION. [CHAP. III.

Spain.' (2 Annals, 1st sess., ICth Cong., 1781.) The motion was carried
on the lOtli of May, after debate, by a majority of five {ibid.^ 2229), bnt
nothing further was done. {Ibid., note 2230.)

"In the second session of the Sixteenth Congress Mr. Clay resumed
his efl'orts to secure a political recognition of the revolted states. He
moved an approi^riation for a mission (Annals, 2d sess. IGth Cong.,
1071), but it was defeated. {Ibid., 1077.) He then moved that the
House 'participates with the people of the United States in the deep
interest which they feel for the success of the Spanish provinces of
South America, which are struggling to establish their liberty and in-
dependence, and that it will give its constitutional support to the Presi-
dent of the United States whenever he may deem it exi)edient to rec-
ogonize the sovereignty and independency of any of the said provinces.'
{Ibid., 1081.) After a debate a motion was carried. {Ibid., 1091-1092.)

"At the opening of the next session of Congress the President said
in his message: 'It is understood that the colonies in South America
have had great success during the present year in the strnggle for their
independence. * * * it has long been manifest that it would be
impossible for Spain to reduce these colonies by force, and equally so
that no conditions short of their independence would be satisfactory to
them. It may, therefore, be presumed, and it is earnestly hoped, that
the Government of Spain, guided by enlightened and liberal counsels,
will find it to comport with its interests, and due to its magnanimity,
to terminate this exhausting controversy on that basis. To promote
this result, by friendly counsel with the Government of Spain, will be
the object of the Government of the United States.' (4 F. E., F., 739.)

" On the 30tb of January, 1822, the House requcvsted the President to
lay before it communications from the agents of the United States in
the revolted states, or from the agents of those states in the United
States which might tend to show the political condition of those Gov-
ernments, and the state of war between them and Spain. (1 Annals,
1st sess. 17th Cong., 825-828.) The President complied with the request
in a message on the 8th of March, 1822 {ibid., 1238), which message was
also comuiunicated to the Senate on the same day. {Ibid., 284. See
also 4 F. R., F., 818.)

" In this message the President says : 'This contest has now reached
such a stage, and been attended with such decisive success on the part
of the provinces, that it merits the most profound consideration whether
their right to the rank of independent nations, with all the Hdvantages
incident to it in their intercourse with the United States, is not complete.
Buenos Ayres assumed that rank by a formal declaration in 181G, and
has enjoyed it since 1810. * * ♦ The provinces composing the Ee-
public of Colombia, after having separately declared tln^ir independ-
ence, were united by a fundamental law of the 17th of December, 1819.
* * * Chili declared independence in 1818, and has since enjoyed
it undisturbed, and of late, by the assistance of Chili and Buenos Ayres,
the revolution has extended to Peru. Of the movement in Mexico, our
information is less authentic, but it is, nevertheless, distinctly under-
stood that the new Government has declared its independence, and that
there is now no opi)osition to it there, nor a force to make it. * * *
Thus it is manifest that all those provinces are not only in the full en-
joyment of their iudei)endenoe, but, considering the state of the war
and oth'^r circumstances, that there is not the most remote prospect of
their being dei)rived of it. * * * Of the views of the Spanish Gov-
ernment on this subject, no j)articular information has been recently

528

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

received. * * * ij^or has iu\y authentic information been recently
received of the disposition of other powers respecting it. A sincere de-
sire has been cherished to act in concert with them in the proposed
recognition. * * * In proposing this measure, it is not contem-
plated to change thereby, in the slightest manner, our friendly rela-
tions with either of the })arties, but to observe in all respects, as here-
tofore, should the war be continued, the most perfect neutrality be-
tween them. (4 F. E., F., 819.)

" On the 4th of May, 1822, Congress passed 'An act making an appro-
priation to defray the expenses of missions to the independent nations
on the American continent.' One hundred thousand dollars was the
sum appropriated. (3 St. at L., 078.)

" In the message at the opening of the following session of Congress
(December, 1823), President Monroe said: 'With the existing colonies
or dependencies of any European power we have not interfered and
shall not interfere, but with the Governments who have declared their
independence and maintained it, and whose in<lependence we have on
great consideration and on just principles acknowledged, we could not
view any interposition for the purpose of oppressing them, or controll-
ing, in any other manner, their destiny, bj'^ any European power, in any
other light than as the manifestation of an unfriendly disposition to-
wards the United States.' (1 Annals, 1st sess. 18th Cong., 22, 23.)

" The general treaty of peace, amity, and commerce, concluded on the
3d day of October, 1824, between the United States and the Republic
of Colombia (which then consisted of what was afterwards known as
New Granada, of Venezuela, and of Ecuador) was the first of a long
series of treaties with the new powers. (5 F. R., F., 696-729.)

" In the same year a convention for the suppression of the African
slave-trade was negotiated with the Republic of Colombia, but was
rejected by the Senate. {Ibid., 729-735.)"

"As a representativ^e in Congress in 1818, 1820, and 1822, he (Mr.
Clay) had, indeed, taken the lead in urging on our Government the
immediate recognition of the new South American states, then strug-
gling bravely to establish and maintain their independence, and in
assuring them of the warm sympathy of our own Republic, he was
earlier than George Canning himself in 'calling them into being.' Rich-
ard Rush, in writing to him from Loudon, in 1825, where he was then
our minister, justly criticises the arrogant self-laudation of Mr. Can-
ning on this subject, which Earl Grey had only ridiculed as a 'frivolous
and empty boast,' and says : ' If Earl Grey had been better informed
he would have said that it was you who did most to call them into
being. * * * The South Americans owe to you more than to any
man in either hemisphere their independence, you having led the way
to our acknowledgment of it.' * * * Mr. Clay was then ready and
resolved, on assuming the portfolio of Seci'etary of State, to enter into
treaties with these new republics at the earliest moment, and Mr. Adams
was no less resolved and ready for such a step."

Mr. Winthrop'a address on Mr. Clay, 4 Winthrop's Addresses, &c. , 47.

"Whilst the President, however, is thus anxious to prevent all offi-
cious intermeddling in the internal political affairs of other countries by
our diplomatic functionaries, he does not regard it as inconsistent with
the observance of that salutary rule that you should, on j^roper applica-
S. Mis. 162— VOL. I 34 529

§ 70.] INTERVENTION. [CHAP. III.

tion, and upon suitable occasions, communicate freely and frankly the
nature and operation of our political institutions, and so far as correct
principles of public policy can be aided by such means it is his wish
that they should be employed. Your business is solely with the actual
government of the country where you are to reside, and you should
sedulously endeavor, by a frank and courteous deportment, to conciliate
its esteem and secure its confidence. So far as we are concerned, that
which is the Government de facto is equally so de jure. Should any
change in the Government of Colombia take place, rendering your cre-
dentials inapplicable, you will be at no loss for the proper explanation;
and should the new Government refuse to receive you without others,
in another form, you will, of course, transmit the earliest notice of the
circumstance to this Department that what is wanting may be supplied.
In the mean time it may be expected that informal communications will
enable you to pursue with due effect the objects claiming your atten-
tion."

Mr. Van Buren, Sec. of State, to Mr. Moore, June 9, 1829. MSS. Inst., Am. St.

As to the recognition, in 1828, by the Government at Washington, of the charg6
d'affaires sent by Don Miguel, as King of Portugal, see instructions of Mr,
Van Buren, Sec. of State, to Mr. Tudor, Sept. 4, 1829. MSS. Inst., Am. St.

" It has been the principle and the invariable practice of the United
States to recognize that as tlie legal Government of another nation
which by its establishment in the actual exercise of ijolitical power
might be supposed to have received the express or implied assent of
people."

Mr. Livingston, Sec. of State, to Sir Charles Vaughan, Apr. 30, 1833. MSS.
For. Leg. Notes.

In a report made June 18, 1836, by Mr. Clay, from the Senate Com-
mittee on Foreign Relations, in resi3ect to the recognition of the inde-
pendence of Texas (Senate I)oc. 406, 24th Cong., 1st sess.), are the fol-
lowing passages :

" The right of one independent power to recognize the fact of the
existence of a new power about to assume a position among the nations
of the earth is incontestable. It is founded upon another right, that
which appertains to every sovereignty, to take care of its own interests
by establishing and cultivating such commercial or other relations with
the new power as may be deemed expedient. Its exercise gives no just
ground of umbrage or cause of war. The policy which has hitherto
guided the Government of the United States in respect to new powers,
has been to act on the fact of their existence, without regard to their
origin, whether that has been by the subversion of a pre-existing Gov-
ernment, or by the violent or voluntary separation of one from another
part of a common nation. In cases where an old and established nation
has thought proper to change the form of its Government, the United
States, conforming to the rule which has ever governed their conduct,
of strictly abstaining from all interference with the domestic concerns
of other states, have not stopped to inquire whether the new Government
has been rightfully adopted or not. It has been sufficient for them that
it is, in fact, the Government of the country, in i)ractical operation.

530

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

There is, however, a marked difference ia the instances of an old nation
which has altered the form of its Government, and a newly organized
power which has just sprung into existence. In the former case (such,
for example, as was that of France) the nation had existed for ages as
a separate and independent community. It is a matter of history, and
the recognition of its new Governments was not necessary to denote the
existence of the nation ; but, with respect to new powers, the recogni-
tion of their Governments comprehends, first, an acknowledgment of
their ability to exist as independent states, and secondly, the capacity
of their particular Governments to perform the duties and fulfill the
obligations towards foreign powers incident to their new condition.
Hence, more caution and deliberation are necessary in considering and
determining the question of the acknowledgment of a new power than
that of the new Government of an old power.

" The Government of the United States has taken no part in the
contest which has unhappily existed between Texas and Mexico. It
has avowed its intention, and taken measures to maintain a strict neu-
trality towards the belligerents. If individual citizens of the United
States, impelled by sympathy for those who were believed to be strug-
gling for liberty and independence against oppression and tyranny,
have engaged in the contest, it has been without the authority of their
Government. On the contrary, the laws which have been hitherto found
necessary or expedient to prevent citizens of the United States from
taking part in foreign wars have been directed to be enforced. * * *

" The recognition of Texas as an independent power may be made by
the United States in various ways : First, by treaty ; second, by the
passage of a law regulating commercial intercourse between the two
powers; third, by sending a diplomatic agent to Texas with the usual
credentials; or, lastly, by the Executive receiving and accrediting a
diplomatic representative from Texas, which would be a recognition as
far as the Executive only is competent to make it. In the first and
third modes the concurrence of the Senate in its executive character
would be necessary, and in the second in its legislative character.

" The Senate alone, without the co-operation of some other branch oi
the Government, is not competent to recognize the existence of any
power.

"The President of the United States, by the Constitution, has the
charge of their foreign intercourse. Regularly he ought to take the
initiative in the acknowledgment of the independence of anj' new
power, but in this case he has not yet done it, for reasons which he,
without doubt, deems sufiicieut. If in any instance the President
should be tardy, he may be quickened in the exercise of his power by
the expression of the opinion, or by other acts, of one or both branches
of Congress, as was done in relation to the Republics formed out of
Spanish America. But the committee do not think that on this occa-
sion any tardiness is justly imputable to the Executive. About three
months only have elapsed since the establishment of an independent
Government in Texas, and it is not unreasonable to wait a short time to
see what its operation will be, and especially whether it will afford
those guarantees which foreign powers have a right to expect before
they institute relations with it.

" Taking this view of the whole matter, the committee conclude by
recommending to the Senate the adoption of the following resolution :

" ' Resolved, That the independence of Texas ouglit to be acknowl-
edged by the United States whenever satisfactory information shall be

531

§ 70.] INTERVENTION. [CHAP. III.

received that it has in successful operation a civil Government, capable
of performing the duties and fulfilling the obligations of an independ-
ent power.' "

" No steps have been taken by the Executive towards the acknowl-
edgment of the independence of Texas, and the whole subject would
have been left without further remark on the information now given to
Congress, were it not that the two houses at their last session, acting
separately, passed resolutions ' that the independence of Texas ought
to be acknowledged by the United States whenever satisfactory infor-
mation should be received that it had in successful operation a civil
Government capable of performing the duties and fulfilling the obliga-
tions of an independent power.' This mark of interest in the question
of the independence of Texas, and indication of the views of Congress,
make it proper that I should somewhat in detail present the considera-
tions that have governed the Executive in continuing to occupy the
ground previously taken in the contest between Mexico and Texas.

" The acknowledgment of a new state as independent, and entitled to
a place in the family of nations, is at all times an act of great delicacy
and responsibility, but more especially so when such state has forcibly
separated itself from another of which it had formed an integral part,
and which still claims dominion over it. A premature recognition
under these circumstances, if not looked upon as justifiable cause of
war, is always liable to be regarded as a i)roof of an unfriendly spirit
to one of the contending parties. All questions relative to the govern-
ment of foreign nations, whether of the Old or New World, have been
treated by the United States as questions of fact only, and our prede-
cessors have cautiously abstained from deciding upon them until the
clearest evidence was in their jjossession to enable them not only to
decide correctly, but to shield their decisions from every unworthy im-
putation. In all the contests that have arisen out of the revolutions of
France, out of the disputes relating to the Crowns of Portugal and
Spain, out of the separation of the American i^ossessions of both from
the European Governments, and out of the numerous and constantly-
occurring struggles for dominion in Spanish America, so wisely con-
sistent with our just principles has been the action of our Government
that we have, under the most critical circumstances, avoided all censure,
and encountered no other evil than that produced by a transient estrange-
ment of good-will in those against whom we have been by force of evi-
dence compelled to decide.

" It has thus made known to the world that the uniform policy and
practice of the United States is to avoid all interference in disputes
which merely relate to the internal government of other nations, and
eventually to recognize the authority of the prevailing party without
reference to our particular interests and views or to the merits of the
original controversy. Public opinion here is so firmly established and
532

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

well understood in favor of this policy that no serious disagreement has
ever risen among ourselves in relation to it, although brought under
view in a variety of forms, and at periods when the minds of the people
were greatly excited by the agitation of topics purely domestic in their
character. Nor has any deliberate inquiry ever been instituted in Con-
gress, or in any of our legislative bodies, as to whom belonged the
power of originally recognizing a new state. A power the exercise of
which is equivalent, under some circumstances, to a declaration of war ;
a power nowhere especially delegated, and only granted in the Consti-
tution as it is necessarily involved in some of the great powers given
to Congress — in that given to the President and Senate to form treaties
with foreign powers, and to appoint embassadors and other i)ublic min-
isters, and in that conferred upon the President to receive ministers
from foreign nations.

" In the preamble to the resolution of the House of Eepresenta-
tives, it is distinctly intimated that the expediency of recognizing the
independence of Texas should be left to the decision of Congress. In
this view, on the ground of expediency, I am disposed to concur;
and do not, therefore, consider it necessary to express any opinion as
to the strict constitutional right of the Executive, either apart from, or
in conjunction with the Senate, over the subject. It is to be presumed
that on no future occasion will a dispute arise, as none has heretofore
occurred, between the Executive and the legislature in the exercise of the
power of recognition. It will always be considered consistent with the
spirit of the Constitution, and most safe, that it should be exercised,
when probably leading to war, with a previous understanding with that
body by whom war can alone be declared, and by whom all the provis-
ions for sustaining its perils must be furnished. Its submission to Con-
gress, which represents in one of its branches the States of the Union,
and in the other, the people of the United States, where there may be
reasonable ground to apprehend so grave a consequence, would certainly
afford the fullest satisfaction to our own country, and a iierfect guaran-
tee to all other nations, of the justice and prudence of the measures
which might be adopted.

" In making these suggestions, it is not my purpose to relieve myself
from the responsibilty of expressing my own opinions of the course the
interests of our country prescribe, and its honor permits us to follow.

" It is scarcely to be imagined that a question of this character could
be presented, in relation to which it would be more difficult for the
United States to avoid exciting the suspicion and jealousy of other
powers, and maintain their established character for fair and impartial
dealing. But on this, as on every other trying occasion, safety is to be
found in a rigid adherence to principle.

" In the contest between Spain and the revolted colonies we stood
aloof, and waited not only untd the ability of the new states to protect
themselves was fully established, but until the danger of their being

533

§ 70.] INTERVENTION. [CHAP. III.

again subjugated had entirely passed away. Then, and not until then,
were they recognized. Such was our course in regard to Mexico her-
self. The same policy was observed in all the disputes growing out
of the separation into distinct Governments of those Spanish-Amer-
ican states, who began or carried on the contest with the parent coun-
try, united under one form of government. We acknowledged the
separate independence of i^ew Grenada, of Venezuela, and of Ecuador,
only after their independent existence was no longer a subject of dis-
pute, or was actually acquiesced in by those with whom they had been
previously united. It is true that with regard to Texas the civil au-
thority of Mexico has been expelled, its invading army defeated, the
chief of the Eepublic himself captured, and all present power to con-
trol the newly-organized Government of Texas annihilated within its
confines. But, on the other hand, there is, in appearance at least, an
immense disparity of physical force on the side of Texas. The Mexican
Eepublic, under another Executive, is rallying its forces under a new
leader, and menacing a fresh invasion to recover its lost dominion.

"Upon the issue of this threatened invasion, the independence of
Texas may be considered as suspended; and were there nothing pecu-
lar in the relative situation of the United States and Texas, our acknowl-
edgment of its independence at such a crisis could scarcely be regarded
as consistent with that prudent reserve with which we have hitherto
held ourselves bound to treat all similar questions. But there are cir-
cumstaucos in the relations of the two countries which require us to
act on this occasion with even more than our wonted caution. Texas
was once claimed as a part of our property, and there are those among
our citizens who, always reluctant to abandon that claim, cannot but
regard with solicitude the prospects of the reunion of the territory to
this country. A large portion of its civilized inhabitants are emigrants
from the United States, speak the same language with ourselves, cher-
ish the same principles, i)olitical and religious, and are bound to many
of our citizens by ties of friendship and kindred blood; and, more than
all, it is known that the people of that country have instituted the same
form of government with our own, and have, since the close of your
last session, oi)enly resolved, on the acknowledgment by us of their
independence, to seek admission into the Union as one of the Federal
States. This last circumstance is a matter of jieculiar delicacy, and
forces upon us considerations of the gravest character. The title of
Texas to the territory she claims is identified with her independence;
she asks us to acknowledge that title to the territory, with an avowed
design to treat immediately of its transfer to the United States. It
becomes us to beware of a too early movement, as it might subject us,
however unjustly, to the imputation of seeking to establish the claim
of our neighbors to a territory, with a view to its subsequent acquisi-
tion by ourselves. Prudence, therefore, seems to dictate that we should
534

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

etill stand aloof, and maintain our present attitude, if not until Mexico
itself, or one of the great foreign powers, sball recognize the independ-
ence of the new Government, at least until the lapse of time or the
course of events shall have proved beyond cavil or dispute the ability
of the people of that country to maintain their separate sovereignty
and to uphold the Government constituted by them. Neither of the
contending parties can justly complain of this course. By pursuing it,
we are but carrying out the long-established policy of our Government,
a policy which has secured to us respect and influence abroad and
inspired confidence at home."

President Jackson, Texas message, Dec. 21, 1836.

" The independence of other nations has always been regarded by the
United States as a question of fact merely, and that of every people has
been invariably recognized by them whenever the actual enjoyment of
it was accompanied by satisfactory evidence of their power and deter-
mination permanently and effectually to maintain it. This was the
course pursued by the United States in acknowledging the independence
of Mexico and the other American states, formerly under the dominion
of Spain. The United States, in recognizing Texas, acted in perfect
accordance with their ordinary and settled policy. That act, however,
did not proceed from any unfriendly spirit towards Mexico and must
not be regarded as indicative of a disposition to interfere in the contest
between her and Texas."

Mr. Forsyth, Sec. of State, to Mr, Castillo, Mar. 17, 1837. MSS. Notes, Mex.

The action of the United States in 1837, relative to the recognition
of Texan independence, is detailed by Sir W. Harcourt (Historicus, 19)
as a precedent sustaining the position assumed by him, "that recognition
is not permissible until the contest is won." At the time of the recog-
nition by the United States, no bona fide contest was going on between
the insurgent province and its former sovereign.
As to annexation of Texas, see infra, ^ 72.

" Near eight years have elapsed since Texas declared her independence.
During all that time, Mexico has asserted her rights of jurisdiction and
dominion over that country, and has endeavored to enforce it by arms.
Texas has successfully resisted all such attempts, and has thus afforded
ample proofs of her ability to maintain her independence. This proof
lias been so satisfactory to many of the most considerable nations of the
world, that they have formally acknowledged the independence of Texas
and established diplomatic relations with her. Among those nations
the United States are included, and, indeed, they set the example which
other nations have followed. Under these circumstances the United
Slates regard Texas as in all respects an independent nation, fully com-
petent to manage its own affairs and possessing all the rights of other
independent nations. The Government of the United States, therefore,

535

§ 70.] INTERVENTION. [CHAP. III.

will not consider it necessary to consult any other nation in its transac-
tions with the Government of Texas."

Mr. Upshur, Sec. of State, to Mr. Almonte, Dec. 1, 1843. MSS. Notes, Mex.

" It was right and proper that the envoy extraordinary and minister
plenipotentiary from the United States should be the first to recognize^
so far as his powers extended, the provisional Government of the
French Kepublic. Indeed, had the representative of any other nation
preceded you in this good work, it would have been regretted by the
President." ,

Mr. Buchanan, Sec. of State, to Mr. Rush, Mar. 31, 1848. MSS. Inst., France.

" In its intercourse with foreign nations the Government of the United
States has, from its origin, always Recognized de facto Governments.
We recognize the right of all nations to create and re-form their polit-
ical institutions according to their own will and pleasure. We do not
go behind the existing Government to involve ourselves in the question
of legitimacy. It is suflScient for us to know that a Government exists
capable of maintaining itself; and then its recognition on our part
inevitably follows. This principle of action, resulting from our sacred
regard for the independence of nations, has occasioned some strange
anomalies in our history. The Pope, the Emperor of Eussia, and Presi-
dent Jackson were the only authorities on earth which ever recognized
Don Miguel as King of Portugal.

" Whilst this is our settled policy, it does not follow that we can ever
be iudifierent spectators to the progress of liberty throughout the world,
and especially in France. We can never forget the obligations which
we owe to that generous nation for their aid at the darkest period of
our Revolutionary war in achieving our own independence. These obli-
gations have been transmitted from father to son, from generation to
generation, and are still gratefully remembered. They yet live freshly
in the hearts of our countrymen. It was, therefore, with one universal
burst of enthusiasm that the American people hailed the late glorious
revolution in France in favor of liberty and republican government. In
this feeling the President strongly sympathizes. Warm aspirations for
the success of the new Republic are breathed from every heart. Liberty
and order will make France happy and prosperous. Her destinies, under
Providence, are now in the hands of the French people. Let them by
their wisdom, firmness, and moderation refute the slanders of their
enemies, and convince the world that they are capable of self-govern-
ment."

Mr. Buchanan, Sec. of State, to Mr, Rush, Mar. Zi, 1848, MSS, Inst., France.

" The prompt recognition of the new Government by the representa-
tive of the United States at the French court, meets my full and un-
qualified approbation, and he has been authorized in a suitable manner
to make known this fact to the constituted authorities of the French
536

CHAP. HI.] RECOGNITION OF SOVEREIGNTY. [§ 70.

Eepublic. Called upon to act upon a sudden emergency, which could
not have been anticipated by his instructions, he judged rightly of the
feelings and sentiments of his Government and of his countrymen, when,
in advance of the diplomatic representatives of other countries, he was
the first to recognize, so far as it was in his power, the free Government
established by the French people.

" The policy of the United States has ever been that of non-interven-
tion in the domestic affairs of other countries, leaving to each to estab-
lish the form of government of its own choice. While this wise polic^^
will be maintained toward France, now suddenly transformed from a
Monarchy into a Eepublic, all our sympathies are naturally enlisted on
the side of a great people, who, imitating our examj>le, have resolved
to be free. That such sympathy' should exist on the part of the people
of the United States with the friends of free government in every part
of the world, and especially in France, is not remarkable. We can
never forget that France was our early friend in our eventful Revolu-
tion, and generously aided us in shaking oft' a foreign yoke and becom-
ing a free and independent people."

President Polk, Special Message, Apr. 3, 1848.

Correspondence in 1349 between Mr. Buchanan, Sec. of State, and Mr. Rush^

minister at Paris, with regard to the French revolution of 1848, will be

found in Sen. Ex. Doc. No. 53, 30th Cong., Ist sess.
As to delay in recognizing the provisional republican Government of Rome in

1849, see Mr. Clayton, Sec. of State, to Mr. Cass, June 25, 1849. MSS. Inst.,

Papal States.

" We, as a nation, have ever been ready, and willing, to recognize
any Government, de facto, which appeared capable of maintaining its
power ; and should either a republican form of government, or that of
a limited monarchy (founded on a popular and permanent basis) be
adopted by any of the states of Germany, we are bound to be the first,
if possible, to hail the birth of the new Government, and to cheer it in
every progressive movement that has for its aim the attainment of the
priceless and countless blessings of freedom."

Mr. Clayton, Sec. of State, to Mr. Donelson, July 8, 1849. MSS. Inst., Prussia.
As to de facto governments, see supra 5 7.

" My purpose, as freely avowed in this correspondence, was to have
acknowledged the independence of Hungary had she succeeded in
establishing a Government de facto ou a basis sufficiently permanent
in its character to have justified me in doing so, according to the usages
and settled principles of this Government ; and although she is now
fallen, and many of her gallant patriots are in exile or in chains, I am
free still to declare, that had she been successful in the maintenance of
such a Government as we could have recognized, we should have been
the first to welcome her into the family of nations."
President Taylor, Special Message, Mar. 28, 1850.

637

§ 70.] INTERVENTION. [CHAP. III.

" In the course of the year 1848, and the early part of 1849, a con-
siderable number of Hungarians came to the United States. Among
them were individuals representing themselves to be in the confidence
of the revolutionary Government, and by these persons the President
was strongly urged to recognize the existence of that Government.
In these applications, and in the manner in which they were viewed by
the President, there was nothing unusual; still less was there anything
unauthorized by the law of nations. It is the right of every inde-
pendent state to enter into friendly relations with every other inde-
pendent state. Of course, questions of prudence naturally arise in
reference to new states brought by successful revolutions into the
family of nations; but it is not to be required of neutral powers that
they should await the recognition of the new Government by the parent
state. Xo principle of public law has been more frequently- acted upon,
within the last thirty years, by the great powers of the world than this.
Within that period eight or ten new states have established indepen-
dent Governments within the limits of the colonial dominions of Spain
on this continent ; and in Europe the same thing has been done by
Belgium and Greece. The existence of all these Governments was recog-
nized by some of the leading powers of Europe, as well as by the United
States, before it was acknowledged by the states from which they had
separated themselves.

" If, therefore, the United States had gone so far as formally to ac-
knowledge the independence of Hungary, although, as th« event has
proved, it would have been a precipitate step, and one from which no
benefit would have resulted to either party, it would not, nevertheless,
have been an act against the law of nations, provided they took no
part in her contest with Austria."

Mr. Webster, Sec. of State, to Mr. Hulsemann, Dec. 21, 1850, MSS. Notes,
Germ. St. See as to Mann's agency supra, § 47, where this note of Mr.
Webster is given in full; as to the threat that such agents are "spies,"
infra, $ '347a.

The correspondence in respect to the French coup d'etat of December, 1851, is
given in Senate Ex. Doc. No. 19, 32d Cong., 1st sess. ; House Ex. Doc. No.
34, 32d Cong., Ist sess.; Senate Ex. Doc. No. 7, special sess., 1853.

" The Government of Peru does not deny, but on the contrary ad-
mits, that adequate provision has been made by law against getting up
and fitting out within the United States such expeditions as it com-
l^lains of, and that the Federal authorities have been vigilant in enforc-
ing that law. It does not impute blame to this Government for the
expedition of Walker and his associates to Nicaragua, but the sole
ground of complaint is the recognition as a Government of the political
power established in ZSTicaragua since Walker and his associates went
to that country. The United States regretted as much as Peru could
do the unhappy political dissensions which prevailed for a long time in
that State, and the disastrous consequences which have resulted from
538

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

them. One political party, for the ]jurpose of obtaining advantage over
another, sought foreign aid, and invited Walker, with his associates, to
join its ranks. The invitation was accepted. So long as there was a
contest for power, so long as any question could be raised as to the per-
sons in whose hands the Government, actual or de facto, had fallen, this
Government did nothing which could afford any pretense for complaint
to any party in the State of Nicaragua, or to any foreign power."
Mr. Marcy, Sec. of State, to Mr. Osma, Sept. 24, 1856. MSS. Notes, Peru.

When it is uncertain which of two titular Executives is in possession
of the civil authority of a foreign state, diplomatic representatives from
neither will be received.

Mr. Marcy, Sec. of State, to Mr. Irisarvi, Oct. 28, 1856. MSS. Notes, Cent. Am.

To sustain the recognition by the United States of a Mexican Gov-
ernment after civil war, it is not necessary that such Government
should be in possession of the city of Mexico. It is enough if it be
" obeyed by a large majority of the country, and is likely to continue."

Mr. Cass, Sec. of State, to Mr. McLane, Mar. 7, 1859. MSS. lust., Mex. Same

to same. May 25, 1859.
In Mr, Buchanan's view of his administration, published in 1866, a narrative

is given of the events which preceded the recognition of Juarez, pp. 270

ff; and see tupra, § 58.

" You are, of course, aware that the election of last November resulted
in the choice of Mr. Abraham Lincoln ; that he was the candidate of
the Republican or Antislavery party; that the preceding discussion had
been confined almost entirely to topics connected, directly or indirectly,
with the subject of negro slavery ; that everj^ Northern State cast its
whole electoral vote (except three in New Jersey) for Mr. Lincoln, while
in the whole South the popular sentiment against him was almost abso-
lutely universal. Some of the Southern States, immediately after the
election, took measures for separating themselves from the Union, and
others soon followed their example. Conventions have been called in
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and
Texas, and those conventions, in all except the last-named State, have
passed ordinances declaring their secession from the Federal Govern-
ment. A Congress, composed of representatives from the six first-named
States, has been assembled for some time at Montgomery, Ala. By
this body a provisional constitution has been framed for what it styles
the ' Confederated States of America.'

" It is not improbable that persons claiming to represent the States
which have thus attempted to throw off their Federal obligations will
seek a recognition of their independence by the Emperor of Russia. In
the event of such an effort being made, you are expected by the Presi-
<lent to use such means as may in your judgment be proper and neces-
sary to prevent its success.

" The reasons set forth in the President's message at the opening of

530

§ 70.] INTERVENTION. [CHAP. Ill,

the present session of Congress in support of his opinion that the States
have no constitutional power to secede from the Union, are still unan-
swered, and are believed to be unanswerable. The grounds upon which
they have attempted to justify the revolutionary act of severing the
bonds which connect them with their sister States are regarded as
wholly insufficient. This Government has not relinquished its consti-
tutional jurisdiction within the territory of those States, and does not
desire to do so.

" It must be very evident that it is the right of this Government to
ask of all foreign powers that the latter shall take no steps which may
tend to encourage the revolutionary movement of the seceding States,
or increase the danger of disaffection in those which still remain loyal.
The President feels assured that the Government of the Emperor will
not do anything in these affairs inconsistent with the friendship which
this Government has always heretofore experienced from him and his
ancestors. If the independence of the 'Confederated States' should be
acknowledged by the great powers of Europe, it would tend to disturb
the friendly relations, diplomatic and commercial, now existing between
those powers and the United States. All these are consequences which
the court of the Emperor will not fail to see are adverse to the interests
of Eussia, as well as to those of this country.

" Your particular knowledge of our political institutions will enable
you to explain satisfactorily the causes of our present domestic troubles,
and the grounds of the hope still entertained that entire harmony will
soon be restored.

Mr. Black, Sec. of State, circular to U. S. ministers abroad, Feb. 28, 1861. MSS.
Inst., Russia ; Dip. Corr., 1861.

" My predecessor, in his dispatch, No. 10, addressed to you on the
28th of February last, instructed you to use all proper and necessary
measures to prevent the success of efforts which may be made by per-
sons claiming to represent those States of this Union in whose name a
provisional Government has been announced, to procure a recognition
of their independence by the Government of Spain.

" I am now instructed by the President of the United States to inform
you that, having assumed the administration of the Government in pur-
suance of an unquestioned election and of the directions of the Consti-
tution, he renews the injunction which I have mentioned, and relies upon
the exercise of the greatest possible diligence and fidelity on your part
to counteract and prevent the designs of those who would invoke foreign
intervention to embarrass or overthrow the Republic.

" When you reflect on the novelty of such designs, their unpatriotic
and revolutionary character, and the long train of evils which must fol-
low directly or consequentially from even their partial or temporary
success, the President feels assured that you will justly appreciate and
cordially approve the caution which prompts this communication.
540

CHAP. III.] EECOGNITION OF SOVEREIGNTY. [§ 79.

" I transmit herewith a copy of the address pronounced by the Presi-
dent on taking the constitutional oath of office. It sets forth clearly
the errors of the misguided partisans who are seeking to dismember the
Union, the grounds on which the conduct of those partisans is disal-
lowed, and also the general policy which the Government will pursue
with a view to the preservation of domestic peace and order, and the
maintenance and preservation of the Federal Union.

" You will lose no time in submitting this address to the Spanish
minister of foreign affairs, and in assuring him that the President of
the United States entertains a full confidence in the speedy restoration
of the harmony and unity of the Government by a firm, yet just and
liberal bearing, co-operating with the deliberate and loyal action of the
American people.

"The United States have had too many assurances and manifesta-
tions of the friendship and good-will of Her Catholic Majesty to enter-
tain any doubt that these considerations, and such others as your large
experience of the working of our Federal system will suggest, will have
their just influence with her, and will prevent Her Majesty's Govern-
ment from yielding to solicitations to intervene in any unfriendly way
in the domestic concerns of our country."

Mr. Seward, Sec. of State, circular, mutatis mutandis, to U. S. ministers abroad,
Mar. 9, 1861. MSS. Inst., Spain; Dip. Corr., 1861.

"To recognize the independence of a new state, and so favor, possi-
oly determine, its admission into the family of nations, is the highest
possible exercise of sovereign power, because it affects in any case the
welfare of two nations, and often the i)eace of the world. In the Euro-
pean system this power is now seldom attempted to be execised with-
out invoking a consultation or congress of nations. That system has
not been extended to this continent. But there is even a greater neces-
sity for j)rudence in such cases in regard to American states than in
regard to the nations of Europe. A revolutionary change of dynasty,
or even a disorganization and recombination of one or many states,
therefore, do not long or deeply affect the general interest of society,
because the ways of trade and habits of society remain the same. But
a radical change effected in the political combinations existing on the
continent, followed, as it probably would be, by moral convulsions of
incalculable magnitude, would threaten the stability of society through-
onr the world.

"Uumanity has, indeed, little to hope for if it shall, in this age of
high improvement, be decided without a trial that the principle of
international law which regards nations as moral persons, bound so to
act as to do to each other the least injury and the most good, is merely
an abstraction too refined to be reduced into practice by the enlight-
ened nations of western Europe. Seen in the light of this principle,
the several nations of the earth constitute one great Federal Republic.

641

§ 70.] INTERVENTION. [CHAP. III.

When one of them casts its suffrages for the admission of a new mem-
ber into that Eepublic, it ought to act under a profound sense of moral
obligation, and be governed by considerations as pure, disinterested,
and elevated as the general interest of society and the advancement of
human nature.

"The British Empire itself is an aggregation of divers communities
which cover a large portion of the earth and embrace one-flfth of its
entire population. Some, at least, of these communities are held to
their places in that system by bonds as fragile as the obligations of our
own Federal Union. The strain will some time come which is to try
the strength of these bonds, though it will be of a different kind from
that which is trying the cords of our confederation. Would it be wise
for Her Majesty's Government, on this occasion, to set a dangerous prec-
edent or provoke retaliation? If Scotland and Ireland are at last
reduced to quiet contentment, has Great Britain no dependency, island,,
or province left exposed along the whole circle of her Empire, from
Gibraltar through the West Indies and Canada till it begins again on
the southern extremity of Africa?"

Mr. Seward, Sec. of State, to Mr. Adams, Apr. 10, 1861. MSS. Inst., Gr. Brit.;
Dip. Corr., 1861.

Sir G. C. Lewis "is supposed to have maintained that England would
not be entitled to recognize the Southern Confederacy until the Fed-
eralists had previously done so. But the secretary of war is far too-
accurate a thinker and sj^eaker to have laid down any such doctrine.
The rule he propounded was precisely that acted on by Mr. Canning
in the case of the South American Kepublics, viz, that where a doubt-
ful and bona fide straggle for supremacy is still maintained by the sov-
ereign power, the insurgents jam flagrante hello cannot be said to have
established a de facto independence."

Historicus, 8.

A revolutionary Government is not to be recognized until it is estab-
lished by the great body of the population of the state it claims to
govern.

Mr. Seward, Sec. of State, to Mr. Culver, Nov. 19, 186'2. MSS. lust., Veuez,
See same to same, Feb. 11, 1864 : Mar. 21, 1864.

"This Government has, and it must insist on, the right to determine
for itself when new authorities, established in a foreign state, can claim
from it a formal recognition of them as an established power. The
regulation of the exercise of that right upon principles of justice and
according to facts established, with an absence of all favor and caprice,
is hardly more important to the universal interests of society than it is
to those of the United States themselves.

" This Government has, at the same time under the law of nations
and by treaty, a clear right to have its properly ai^pointed agents resid-
ing in Venezuela, although the authorities with which it has heretofore
treated have been subverted, more or less completely, and to communi-
542

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

cate with the new authorities upon international matters affecting either
the Government of the United States or its citizens. During the jyeriod,
which, in case of any domestic revolution, may be either short or long,
the agents of this Government have a right to confer upon such matters
with the actual authorities who are conducting the aflairs of Venezuela,
and while the agent is bound to avoid all interference in the domestic
questions of that state, he is entitled to be heard as the representative
of the United States, without a previous recognition of the existing
authorities, in place of those which have been either more or less efiec-
tually supplanted."

Mr. Seward, Sec. of State, to Mr. Culver, Mar. 9, 18G3. MSS. Inst., Venez.

The Government of the United States, in 18G4, while recognizing the
Government of Juarez as the rightful Government of Mexico, at the
same time recognized both parties to the civil war there raging as bel-
ligerents.

Mr. Seward, Sec. of State, to Mr. Geofroy, Apr. 6, 1864. MSS. Notes, France.
See supra, $ 58.

Eeception in 1865 by the Government of the United States of com-
mercial agents representing the Imperial Government of Mexico, then
possessing some of the chief ports of Mexico, is not to be regarded as a
recognition of the Imperial Government, though such agents were per-
mitted in the ports to which they were sent to attest invoices and mani-
fests.

Mr. Seward, Sec. of State, to Mr. Romero, Aug. 9, 1865. MSS. Notes, Mex.

As to Mexican revolutions, see supra, § 58.

As to informal reception of agents from unrecognized states, see supra, § 69.

For an account of the intervention of Napoleon III in Mexico, see 1 Philliraore
Int. Law (3 ed.), 607. The author criticises the action of the United
States in refusing to acknowledge the de facio sovereignty of Maximilian.
See also 2 ibid., 25. See, however, 1 Calvo droit int. (3 ed.), 300.

When there are two rival titular Governments contesting the sov-
ereignty of a South American state, the Government of the United
States will not, in cases of doubt, determine as to the title of either,
but will wait the course of events.

Mr. Seward, Sec. of State, to Mr. Brazael, Aug. 27, 1868. MSS. Notes, Venez.

"Tour dispatches of the 10th of November, Nos. 5 and 6, have been
received. In your No. 5 you announce that a revolution has taken place
in Costa Rica, which was effected by the mere display of military forc«,
unresisted, and without the eflusion of blood. You further announce
that in that movement the President, Seuor Castro, was deposed, and
the first provisional substitute, Sefior Jimenez, had assumed the execu-
tive power. The further transactions mentioned are an acquiescence
of the several provinces, the suspension of the constitution, and the
call of a national convention to adopt a new constitution. As a con-

543

§ 70.] INTERVENTION. [CHAP. III.

sequence of these events, you have recognized the new President, sub-
ject to directions on the occasion from the President of the United
States.

" It does not belong to the Government or people of the United States
to examine the causes which have led to this revolution, or to pronounce
upon the exigency which they created. Nevertheless, great as that
exigency may have been, the subversion of a free reiDublican constitu-
tion, only nine years old, by military force, in a sister American Repub-
lic, cannot but be an occasion of regret and apprehension to the friends
of the system of republican government, not only here, but throughout
the world.

" It only remains to say that the course which you have pursued is
approved, insomuch as it appears that there is not only no civil war,
but no Government contending with the one which has been estab-
lished."

Mr. Seward, Sec. of State, to Mr. Blair, Dec. 1, 1868. MSS. last., Costa Rica.
^ Dip. Corr., 1868.

The circumstances attending the recognition, on September 7, 1870,
of the "National Defense Committee" of France as the " Government
of France" are given in the documents accompanying President Hayes's
special message of February 6, 1878. On September 7 Mr. Washburne
sent to Mr. Favre (who, upon the change of government a few days
before was appointed minister of foreign affairs) a letter containing the
following : " It affords me great pleasure to advise you that I have this
morning received a telegraphic dispatch from my Government instruct-
ing me to recognize the Government of the National Defense as the
Government of France." On September 8 Mr. Favre replied in a letter
beginning as follows : "Hook upon it as a happy augury for the French
Republic that it has received as its first diplomatic support the recog-
nition of the Government of the United States."

" The regular Government of France, constituted by the will of the
people as expressed through the National Assembly at Bordeaux, hav-
ing been driven from Paris by the insurrectionary movement and estab-
lished itself at Versailles, I deem it my duty to follow that Government,
and shall, therefore, on to morrow or the next day, remove thither
with the legation, leaving one of the secretaries in charge here. Everj
member of the diplomatic corps will also leave."

Mr. Washburne to Mr. Fish, Mar. 19, 1871. MSS. Dispatches, France.

" As soon as I learned that a Repub*lic had been proclaimed at Paris,
and that the people of France had acquiesced in the change, the minis-
ter of the United States was directed by telegraph to recognize it, and
to tender my congratulations and those of the people of the United
States. The re-establishment in France of a system of government dis-
connected with the dynastic traditions of Europe appeared to be a
proper subject for the felicitations of Americans. Should the present
struggle result in attaching the hearts of the French to our simpler
forms of representative government, it will be a subject of still further
544

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

satisfaction to our people. While we make no effort to iuipose our
institutions upon the inhabitants of other countries, and while we ad-
here to our traditional neutrality in civil contests elsewhere, we cannot
be indifferent to the spread of American political ideas in a great and
highly civilized country like France."

President Grant, Second Annual Message, 1870.

" Eeferring to your note No. 195, concerning the election of the Duke
of Aosta as King of Spain, I have to say that on the 19th of Novem-
ber Mr. Eoberts called to officially inform me of that fact. I received
the information without an intimation of the course that will be pur-
sued by his Government. It has been the policy of the United States
to recognize the Governments de facto of the countries with which we
hold diplomatic relations. Such was our course when the Eepublic
was established in France in 1848, and again in 1870, and in each case
accepted by the French people. Such was our course in Mexico when
the Eepublic was maintained by the people of that country in spite of
foreign efforts to establish a monarchy by military force. We have
always accepted the general acquiescence of the people in a political
change of government as a conclusive evidence of the will of the nation.
When, however, there has not been such acquiescence, and armed re-
sistance has been shown to changes made or attempted to be made
under the form of law, the Dnited States have applied to other nations
the rule that the organization which has i)ossessiou of the national
archives and of the traditions of Government, and which has been
inducted to power under the forms of law, must be presumed to be the
exponent of the desires of the people until a rival political organization
shall have established the contrary. Your course in the present case
will be governed by this rule.

" Should there be circumstances which lead you to doubt the pro-
priety of recognizing the Duke of Aosta as King of S])ain, it will be
easy to communicate with the Department by telegraph and ask in-
structions. Should there be no such circumstances, the general policy
of the United States, as well as their interests in the present relations
with Spain, call for an early and cheerful recognition of the change
which the nation has made."

Mr. Fish, Sec. of State, to Mr. Sickles, Dec. 1(5, 1870. MSS. Inst., Spain; For.
Rel., 1871.

" This Government has never recognized Cabral as even entitled to
the rights of a belligerent. Certainly, therefore, it cannot acknowledge
any claim of his to rule any part of the territory of the Dominican Ee-
public. It is perhaps superfluous to add that this Government has no
connection, director indirect, with the association which has bought or
leased from Boez certain territory around the Bay of Samana. The
enterprise adverted to has no other claims upon us than other similar
enterprises of citizens of the United States hi foreign countries, which

S. Mis. 162— VOL. I 35 ^^^

§ 70.] INTERVENTION. [CHAP. III.

must be audertaken at their owu risk and subject to the laws of such
countries."

Mr. Fish, Sec. of State, to Mr. Bassett, Mar. 26, 1873. MSS. Inst., Hayti.

"Your dispatch ISTo. 379, on the subject of the reception of the Papal
nuncio, and your visit to him, has been read with much interest.

" Wliile the probabilities seem to be almost entirely against the pos-
sibility of the restoration of any temporal power to the Pope, he is still
recognized as a sovereign by many of the powers of the world, which
receive from him diplomatic representatives in the person of either a
nuncio or a legate, or possibly in some other capacity, and which pow-
ers also accredit to him certain diplomatic representatives.

" With all such arrangements this Government abstains from inter-
ference or criticism. It is the right of those powers to determine such
questions for themselves; and when one of them, at whose court this
Government has a representative, receives a representative from the
Pope of higher rank than that of the representative of the United
States, it becomes the duty of the latter to observe toward the Pope's
representative the same courtesies and formality of the first visit, pre-
scribed by the conventional rules of intercourse and ceremonial, and of
the precedence of diplomatic agents, which have been adoi^ted, and
almost invariably acted upon for the last sixty years.

" In the case which forms the subject of your very interesting dis-
patch, yon pursued the course which alone would have been expected
from one of your accustomed prudence, and of your experience and famil-
iarity with the proprieties of such occasions."

Mr. Fish, Sec. of State, to Mr, Gushing, June 4, 1875. MSS. Inst., Spain ; For.
Rel., 1875.

The question of the sovereignty of the Ottoman Porte over Tripoli
is one as to which, in 1876, the United States was not ready to declare
its determination, but which was held to be proper for future diplomatic
settlement.

Mr. Fish, Sec. of State, to Aristarchi Bey, May 3, 1876. MSS. Notes, Turkey.
For an elaborate exposition of the relations of the United States to Tripoli, see

Mr. Fish, Sec. of State, to Aristarchi Bey, Sept. 18, 1876. MSS. Notes,

Turkey. See, also, supra, § 164.

" It has been the custom of the United States, when such (revolu-
tionary) changes of government have Heretofore occurred in Mexico, to
recognize and enter into ofiicial relations with the de facto Government
as soon as it shall appear to have the apjjroval of the Mexican jieople,
and should manifest a disposition to adhere to the obligations of trea-
ties and international friendship."

President Hayes, First Annual Message, 1877. See supra, $ 58. As to de facto
governments see supra, ^ 7.

" The Government of the United States in its dealings with the Mexi-
can Republic has aimed to pursue not merely a just but a generous and
546

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

friendly course. While earnest to guard and protect the rights of its
own citizens and the safety of its own territory, it does not seek to in-
tervene in i^olitical contests or changes of admiuistratiou. It is accus-
tomed to accept and recognize the results of a popular choice in Mexico,
and not to scrutinize closely the regularity or irregularity of the methods
by which Presidents are inaugurated. In the present case it waits be-
fore recognizing General Diaz as the President of Mexico until it shall
be assured that his election is approved by the Mexican people, and
that his administration is possessed of stability to endure, and of dispo-
tion to comply with the rules of international comity and the obliga-
tions of treaties.

" Such recognition, if accorded, would imply something more than a
mere formal assent. It would imply a belief that the Government so
recognized will faithfully execute its duties and observe the spirit of its
treaties. The recognition of a President in Mexico by the United States
has an important moral iniluence which, as you explain, is appreciated
at the capital of that Eepublic. It aids to strengthen the power and
lengthen the tenure of the incumbent, and if, as you say, the example
of the United States in that regard is one that other nations are dis-
posed to follow, such recognition would not be without effect, both upon
the internal and the external peace of Mexico. You justly remark that
in fifty years there have been about sixty changes of administration in
Mexico, and it may be added that those administrations have been long-
est lived that were most faithful and friendly in the discharge of their
treaty obligations to the United States.

" When the recent revolution resulted in placing General Diaz in the
position of chief magistrate, this Government learned with satisfaction
that he was desirous that the obligations of Mexico, under the treaty of
July 4, 1868, between the two countries, should be faithfully observed,
and that he had accordingly sanctioned the prompt payment of the in-
stallment of $250,501 in gold.

" But it is a subject of grave regret that in other respects the customs
of friendly intercourse and the obligations of treaties have been neg-
lected, disregarded, or violated. Doubtless, in many cases, the cen-
tral Government was powerless to prevent these infractions. But they
are such as this Government cannot allow to pass without remonstrance,
nor without insisting that it is the duty of a friendly i)ower to use the
means at its disposal to check or rexness them. There have been raids
and depredations upon the Texan frontier; theft, murder, arson, and
plunder; violation of i)Ost-ofljces and cnstom-houses ; incursions by
armed men to destroy life or property. Cattle-stealing has become a
profitable occupation. Military officials posted to protect the frontier
are said to have protected the robbers. Forced loans have been de-
manded, and American citizens have been compelled to submit to un-
just and unequal exactions. Within the past few weeks the guides of
an American commander have been seized and carried into the interior.

647

^N 70 ] INTERVENTION. [CHAP. III.

with threats of summary execution ; and a consul of the United States,
in gross violation of international comity, has been imprisoned. For
each and all of these acts, many of them committed, if not with the
sanction at least in the name of the Government of Mexico, not one
single man, so far as is known to this Government, has been punished.

"It is not diflBcult to believe that General Diaz and his minister of
foreign affairs earnestly desire friendly relations and recognition on the
part of the United States, and it is gratifying to receive the assurances
unofficially made through you that they are disposed to adjust and rec-
tify these complaints and grievances, and are not unwilling to consent
to some arrangement for concerted action between the military com-
manders of the two countries on the frontier for the preservation of
peace and order and the protection of life and property. It is natural
that Mexican statesmen should urge upon you the argument that the
restoration of official relations between the two Governments would
open the way toward such an adjustment. But it is natural, on the
other hand, that the Government of the United States should be dis-
posed to believe that some guarantee of such an arrangement should be
made the condition precedent to any recognition, rather than to trust
to the ijossibility that it may ultimately follow.

"In continuing your present unofficial and informal communications
with the Mexican Government, you may present these views, in whole
or in part, at your own discretion, not failing, however, to let it be
clearly understood that while the Government of the United States
seeks amity and cordial relations with their sister Republic, they prefer
to await some evidence that their friendship will be reciprocated."

Mr. F. W. Seward, Acting Sec. of State, to Mr. Foster, May 16, 1877. MSS.
Inst., Mex. ; For. Rel., 1877. See further, as to Mexico, supra, $ 58.

" The capacity of a state, in itself, for recognition, and the fact of
recognition by other states, are two different things. Eecognition is
not an act wholly depending on the constitutionality or completeness of
a change of government, but is not infrequently influenced by the needs
of the mutual relations between the two countries. When radical
changes have taken place in the domestic organization of the country,
or when they seem to be contemplated in its outward relations, it is
often a matter of solicitude with this Government that some misunder-
standing should exist that the rights acquired by our citizens through
the operation of treaties and other diplomatic engagements, shall not
be affected by the change. In other words, while the United States
regard their international compacts and obligations as entered into with
nations rather than Tvith political Governments, it behooves them to be
watchful lest their course toward a Government should affect the rela-
tions to the nation. Hence, it has been the customary policy of the
United States to be satisfied on this point, and doing so is in nowise an
548

CHAP. III.] RECOGNITION OF SOVEREIGNTY. [§ 70.

implication of doubt as to the legitimacy of tiie internal change which
may occur in another state.

"Pending formal recognition, however, it is not to be supposed that
any of the customary business relations or civil courtesies are abruptly
terminated. The actual lormula of recognition is unn)istakable, and,
short of that evident step, the diplomatic fiction of 'olUcious' intercourse,
or 'unofficial' action is elastic enough to admit of continuing ordinary
intercourse, for the most part, without rupture of any of its varied
parts."

Mr. Evarts, Sec. of Stale, to Mr. Baker, June 14, 1871). MSS. lust., Venez.

"As a general rule of foreign policy, obtaining since the foundation
of our Government, the recognition of a foreign Government by this is
not dependent on right, but on fact. For this reason, when a change
occurs in the administration of a nation, and the new authorities are in
unopposed possession of the full machinery of Government, with duly
appointed public officers acting in its name, and evincing the purpose
as well as the power to carry out the ints rnational obligations of the
state, recognition would follow, as a matter of course, whatever might
be the personal character of the head of the new Government, or what-
ever the nature of his rule, so long as no considerations of policy directly
aflecting the relations between his country and this intervene to post-
pone such a result."

Mr. Himter, Acting Sec. of State, to Mr. Baker, Oct. 3, 1879. MSS. Inst.,
Venez.

A recognition by the Secretary of State of the emissary of a foreign
Government as a "political agent" of such Government, does not by
itself invest such emissary with a diplomatic character.

Mr. Blaine, Sec. of State, to Mr. Fish, Apr. 15, 1881. MSS. Inst., Switz.

" Should unforeseen and unfortunate circumstances ever bring it into
question, the United States will be prepared to repeat and enforce the
principle declared by its highest authority, more than half a century
ago, that 'with the Governments [of the American Continent] which have
declared their independence and maintained it, and whose independence
we have on great consideration and ou just principles acknowledged,
we could not view any interposition for the purpose of opi)ressing or
controlling in any other manner, their destiny, by an European power,
in any other light than as the manifestation of an unfriendly disposition
towards the United States.'"

Mr. Blaine, Sec. of State, to Mr. Logan, May 7, 1881. MSS. Inst., Cent. Am.

"In your last dispatch you informed this Department that the Chilian
Government refused absolutely to recognize General Pi^rola as repre-
senting the civil authority in Peru, and that Senor Calderon was at the

head of a provisional Government.

549

§ 70.] INTERVENTION. [CHAP. III.

"If the Calderou Government is supported by tbe character and

intelligence of Peru, and is really endeavoring- to restore constitutional
government with a view both to order within and negotiation with
Chili for peace, you may recognize it as the existing provisional Gov-
ernment, and render what aid you can by advice and good offices to
that end.

" Mr. Elmore has been received by me as the confidential agent of
such j)rovisional Government."

Mr. Blaine, Sec. of State, to Mr. Christiancy, May 9, 1881. MSS. Inst., Peru;
For. Eel., 1881.

" Special envoy extraordinary leaves Washington for Peru immedi-
ately. Continue recognition of Calderon Government."

Mr. Blaine, Sec. of State, to Mr. Hurlbut (telegram), Nov. 26, 1881. MSS. Inst.,
Peru ; For. Eel., 1861.

"The contest between Bolivia, Chili, and Peru has passed from the
stage of strategic hostilities to that of negotiation, in which the coun-
sels of this Government have been exercised. The demands of Chili
for absolute cession of territory have been maintained, and accepted by
the party of General Iglesias to the extent of concluding a treaty of
peace with the Governmont of Chili in general conformity with the
terms of the protocol signed in May last between the Chilian com-
mander and General Iglesias. As a result of the conclusion of this
treaty. General Iglesias has been Ibrmally recognized by Chili as
President of Peru, and his government installed at Lima, which has
been, evacuated by the Chilians. A call has-been issued by General
Iglesias for a representative assembly, to be elected on the 13th of
January, and to meet at Lima on the 1st of March next. Meanwhile
the provisional Government of General Iglesias bas applied for recog-
nition to the principal powers of America and Europe. When the will
of the Peruvian people shall be manifested, I shall not hesitate to rec-
ognize the Government approved by them."
President Arthur, Third Annual Message, 1883.

The Department of State will not recognize a revolutionary Gov-
ernment claiming to represent the people in a South American State
until it is established by a free expression of the will of that people.

Mr. Freliughuysen, Sec. of State, to Mr. Logan, Mar. 17, 1884. MSS. Inst.
Chili.

The United States recognize foreign Governments as existing de
facto, without respect to their forms.

7 Op., 582, Gushing, 1855. See supra, $7.

Sir W. Harcourt, in " Historicus," 28, quotes, as sustaining his posi-
tion that there should be no recognition while a civil war is still depend-
ing, the following from ;Mr. Wheaton (vol. 1, p. 92:) ''Until the revolu-
tion is consummated, and while the civil war involving a contest for the

550

CHAP. III.] RECOGNITION DETERMINABLE BY EXECUTIVE. [§ 71.

Governineut coutinues, other states may remain indifferent si)ectators
of the controversy, still eontinuinjj; to treat the ancient Goverinnent as
sovereign, and the Government de facto as a society entitled to the rights
of war against its enemy ; or may espouse the cause of the ])arty which
they believe to have justice on its side. In the first case, the foreign
state fuKiilsallitsobiigationsunderthelawof nations; and neither party
has arighttocomplain,})rovided itmaintaiusan impartialneutrality. In
the latter it becomes, of course, the enemy of the party against whom
it declares itself, and the ally of the other; and as the ])ositive law of
nations makes no distinction in this respect between a just and unjust
war, the intervening state becomes entitled to all the rights of war
against the opposite party." This passage Sir W. Harcourt accepts,
saying that, in the view of Mr. Wheaton, "the question of recognition
is clearly one of law, and not of policy only." lie proceeds, however, to
admit that this position of Mr. Wheaton (;annot easily be reconciled
with a passage from the same author a few pages farther on, in which
passage there "is a looseness of statement which is somewhat unsatis-
factory. It a])pears, however, that in IMr. Wheaton's opinion, tlie part
of 'an impartial neutrality' is to abide the event of the contest, and
this is the only contest which, Mr. AVheaton says, 'neither party has a
right to complain of.' He places the 'acknowledgment of indepen-
dence,' and the 'joining in alliance,' with one of the belligerents, in
another category, and treats them both as a question of ])olitics rather
than of law. But, as 'joining in alliance' would certainly be a ground
of war, perhaps he means that 'the acknowledgment of independence,'
without 'abiding the event of thi* contest,' would be in itself an act of
hostile intervention, and, consequently, belong rather to the province
of politics than of law."

VII. SUCH BECOGNITION DETERMINABLE BY EXECUTIVE.

§71.

The question of recognition of foreign revolutionary or reactionary
Governments is one exclusively for the Executive, and cannot be deter-
mined internationally by Congressional action.

. Mr. Seward, Sec. of State, to Mr. Dayton, Apr. 7, l!-:64. MSS. Inst., France.

Whether a revolted colony is to be treated as a sovereign state is a
political question to be decidell by governments, not by courts of justice ;
and the courts of the United States must consider the ancient state of
things remaining, until the sovereignty of the revolting colony is ac-
knowledged by the Government of the United States.

Rose V. Hiruely, 4 Crancb, 241 ; Kenuett v. Chambers, 14 Howard, 38 ; Gelston
r. Hoyt, 3 Wheat., 324.

The course of the United States with reference to a revolted portion
of a foreign nation is regulated and directed by the legislative and execu-
tive departments of the Government, and not by the judicial department.
If the Government remains neutral, and recognizes the existence of a
civil war, the courts cannot consider as criminal those acts of hostility
which war authorizes, and which the new Government may direct against
its enemy. The persons or vessels employed in tiie service of a terri-

. 551

§ 71.] INTERVENTION. [CHAP. III.

tory whose belligerency has been recognized by this Government must
be permitted to prove the fact of their being so employed by the same
testimony as would be sufficient to prove that such i^erson or vessel was
employed in the service of an acknowledged state. The seal of such
unacknowledged Goverament cannot be permitted to prove itself, but
may bo proved by such testimony as the nature of the case admits; and
the fact that a person or vessel is in the service of such Government
may be proved without proving the seal.

U. S. V. Palmer, 3 Wheat., GIO. See the Estrella, 4 Wheat., 298. As to piracy
in such cases, see infra, $ 361.

The Government of the United States having recognized the exist-
ence of civil war between Spain and her colonies, 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. Captures made under their commissions are to be treated
by the courts as other captures, and their legality canuot be determined
unless they were made in violation of the neutral rights of the United
States.

Divina Pastora, 4 Wheat., .52.

There existing between Spaiu and her revolted colony — theEepublic
of Venezuela — an open war, in which the Government of the United
States maintains strict neutrality, the courts cannot interfere with a
capture made by a cruiser sailing under a commission from the revolt-
ing belligerent.

The Josefa Segnnda, 5 Wheat., 338.

The United States not having acknowledged the existence of any
Mexican Kepublic or State at war with Spain, the Supreme Court does
not recognize the existence at Galveston of any lawful court of prize.
The Nueva Anna, 6 Wheat., 193.

In political matters the courts follow the department of the Govern-
ment to wliich those matters may be committed, and will not recognize
the existence of a new Government until it has been recognized by
the Executive.

U. S. V. Pico, 23 Howard, 326; The Prize Cases, 2 Black, 63.'); U.S. r. Yorba, 1
Wall., 412; U. S. ?'. Hutchiufrg, 2 Wheel., C. C, .543; The Hornet, 2 Abbott,
U. S., 35 ; U. S. V. Baker, 5 Blatch., 6; 1 Bruuner, C. C, 489.

The judiciary follows the Executive on the question of recognition of
belligerent rights.

U. S.v. Palmer, 3 Wheat., 610; The Nueva Anna, 6 Wheat., 193.

As a civil war is never publicly proclaimed, eo nomine^ against insur-
gents, its actual existence is a fact in our domestic history which the
courts are bound to recognize. As, in the case of an insurrection, the
President must, in the absence of Congressional action, determine what
552

CHAP. III.] "accretion, NOT COLONIZATION." [§ 72.

degree of force the crisis demands, aud as in political matters the
courts must be governed l)^^ the decisions and acts of the jjolitical de-
partment to which this power is intrusted, the i)rochimation of l)h)ckade
by the President is of itself conclusive evidence that a state of war
existed which demanded and authorized recourse to such a measure.
The Prize Cases, 2 Black, 035.

Courts having an international jurisdiction may take notice of exist-
ing sovereignties from the fact of their continuous existence as such,
and their recognition as such in history.

Consul of Spain v. the Couceptiou, 2 Wheel., Cr. Ca8.,r)97 ; 1 Brnnnor, Col. Cas.

597 ; S. P., the Maria Josopba, 2 Wheel., Cr. Caa. (iOO ; 1 Brunnta-, Col. Cas.

500. Compare Williams v. Suffolk Ins. Co., 13 Pet., 415 ; afiiriuinj; '.} Suimi.,

270.
As to non-reception by President of foreign political malcontents, see infra, ^ 91.

The action of President Taylor, through Mr. Clayton, Secretary of
State, in sending, in June, 1849, Mr. A. D. ^Vlann as a special agent to
investigate the condition of the Hungarian insurrection, is elsewhere
considered. {Supra, § 47.) In Mr. Mann's instructions, June 18, 1849,
is the following:

'' Should the new Government prove to be, in your opinion, firm and
stable, the President will cheerfully recommend to Congress, at their
next session, the recognition of IJungary, and you might intimate, if
you should see fit, that the President would in that event be gratified
to receive a diplomatic agent from Hungary in the United States by or
before the next meeting of Congress, and that he entertains no doubt
whatever that in case her new Government should prove to be firm and
stable, her independence would be speedily recognized by that enlight-
ened body."

As to this it is to be remarked that while Mr. Webster, who shortly
afterwards, on the death of President Taylor, became Secretary of
State, sustained the sending of Mr. Mann as an agent of inciniry, he
was silent as to this i^aragraph, and suggests, at the utmost, only a
probable Congressional recognition in case the new Government should
prove to be firm and stable. In making Congress tbe arbiter. President
Taylor followed the precedent of President Jackson, who, on j\Iarch 3,
1837, signed a resolution of Congress for the recognition of the independ-
ence of Texas. The recognition, however, by tlie United States, of the
independence of Belgium, of the powers who threw off Nai)oleon\s yoke,
and of the South American states who have from time to time declared
themselves independent of ])rior Governments, has been ]nimarily by
the Executive, and such also has been the case in respe(it to the recog-
nition of the successive revolutionary Governments of France.

VIII. ACCRETION, NOT COLONIZATION, THE POLICY OF THE UNITED

STATES.

§72.

The possession by Spain of the mouth of the Mississippi might have
been tolerated by the United States from the fact that she was already in
possession, and that her power was not such as to make her control of

563

§ 72.] INTERVENTION. [CHAP. III.

that territory, though uiiiioying and disadvantageous, necessarily a
peril to the United States ; but if France should have taken possession
under treaty from Spain, " the worst eflects are to be apprehended,"
and the United States would take the most vigorous measures, even
though they should involve war, to avert such a calamity,

Mr. Madisou, Sec. of State, to Mr. Livingston, May 1, 1802. MSS. Inst., Min-
isters. To same effect, see Mr. Madison to Mr. C. Plucliney, May 11, 1802;
Mr. Madison to Messrs. Livingston and Monroe, Mar. 2, 180lj, ibid. See also
infra, ^^S 148, 154; supra, § 58.

" The cession of Louisiana and the Moridasby Spain to France works
most sorely on the United States. On this subject the Secretary of
State has written to you fully ; yet I cannot forbear recurring to it per-
sonally, so deep is the impression it makes on my mind. It completely
reverses all the political relations of the United States, and will form a
new epoch in our poHtical course. Of all nations of any consideration,
France is the one which, hitherto, has offered the fewest points on which
we could have any conflict of right, and the most points of a communion
of interests. From these causes we have ever looked to her as our
natural friend., as one with which we never could have an occasion of dif-
ference Her growth, therefore, we viewed as our own, her misfortunes
onis. There is on the globe one single spot, the possessor of which is our
natural and habitual enemy. It is New Orleans, through which the
produce of three-eighths of our territory must pass to market, and from
its fertility it will ere long yield more than half of our whole produce,
and contain more than half of our inhabitants. France, placing herself
in that door, assumes to us the attitude of defiance. Si)ain might have
retained it quietly for years. Her pacific dispositions, her feeble state,
would induce her to increase our facilities there so that her possession
of the place would hardly be felt by us, and it would not, perhaps, be
very long before some circumstance might arise which might make the
cession of it to us the price of something of more worth to her. Not so
can it ever be in the hands of France; the impetuosity of her temper,
the energy and restlessness of her character, placed in a point of eternal
friction with us and our character, which, though quiet and loving peace
and the pursuit of wealth, is high-minded, despising wealth in compe-
tition with insult or injury, enterprising, and energetic as any nation
on earth. These circumstances render it impossible that France and
the United States can continue long friends when they meet in so
irritable a position. They, as well as we, must be blind if they do not
see this, and we must be very improvident if we do not begin to make
arrangements on that hypothesis. The day that France takes posses-
sion of New Orleans fixes the sentence which is to retain her forever
within her low-water mark. It seals the union of two nations who, in
conjunction, can maintain exclusive possession of the ocean. From
that moment we must marry ourselves to the British fleet and nation.
We must turn all our attention to a maritime force, for which our re-
souvces place us on very high ground, and having formed and connected
together a power which may render re-enforcement of her settlements
here impossible to France, make the first cannon which shall be fired
in Europe the signal for the tearing up any settlement she may have
made, and for holding the two continents of America in sequestration
for the common purposes of the united British and American nations.

554

CHAP. III.] "ACCRETION, NOT COLONIZATION." [§ 72.

This is not a state of things we seek or desire, ll is one which this
measure, if adopted by France, forces on us as necessarily as any other
cause, by the laws of nature, brings on its necessary effect. It is not
from a fear of France that we deprecate this measure proposed by her.
for, however greater her force is than ours, compared in the abstract,
it is nothing in comparison to ours when to be exerted on our soil, but
it is from a sincere love of i)eace, and a firm persuasion that, bound to
France by the interests and strong sympathies still existing in the
minds of our citizens, and hokling relative positions which insure their
continuance, we are secure of a long course of peace, whereas the change
of friends, which will be rendered necessary if France chanj^es that posi-
tion, embarks us necessarily as a belligerent power in the first war of
Europe. In that case France will have held i)ossession of New Orleans
during the interval of a peace, long or short, at the end of which it will
be wrested from her. Will this shortlived i)Ossession have been an
equivalent to her for the transfer of such a weight into the scale of her
enemy? Will not the amalgamation of a young, thriving nation con-
tinue to that enemy the health and force which are now so evidently on
the decline? And will a few years' possession of New Orleans add
equally to the strength of France? She may say she needs Louisiana
for the supply of her West Indies. She does not need it in time of
peace, and in war she could not depend on them, because they would
be so easily intercepted. I should suppose that all these considerations
might in some i)ro[)er form be brought into view of the (Tovernment of
France. Though stated by us, it ought not to give offense, because we
do not bring them forward as a menace, but as consequences not con-
trollable by us, but inevitable from the course of things. We mention
them not as things w^hich we desire by any means, but as things we
deprecate, and we beseech a friend to look lorward, and to prevent
them for our common interest."

President Jefferson to Mr. Livingston, Apr. 18, 1802. 4 Jeff. Works, pp. 431-
4:53 ; 3 Randall's Jefferson, 6.

"As the question may arise, how far in a state of war one of the par-
ties can of right convey territory to a neutral power, and thereby deprive
its enemy of the chance of conquest incident to war, especially when the
conquest may have been actually projected, it is thought proper to
observe to you, first, that in the present case the project of peaceable
acquisition by the United States originated prior to the war, and con-
sequently before a project of conquest could have existed; secondly,
that the right of a neutral to procure for itself by a bona fide transac-
tion property of any sort from a belligerent i)ower ought not to be frus-
trated by the chance that a rightful conquest thereof might thereby be
precluded. A contrary doctrine would sacrifice the just interests of
peace to the unreasonable pretensions of war, and the positive rights of
one nation to the rights of another. A restraint on the alienation of
territory from a nation at war to a nation at peace is imposed only in
cases where the proceeding might have a collusive reference to the
existence of the war, and might be calculated to save the proi)erty
from danger, by placing it in secret trust, to be reconveyed on the

555

§ 72.] INTERVENTION. [CHAP. III.

return of i)eace. No objection of this sort can be made to the acquisi-
tions we have in view. The measures taken on this subject were taken
before the existence or the appearance of war, and they will be pursued
as they were planned, with the hona fide purpose of vesting the acquisi-
tion forever in the United States."

Mr. MadisoD, Sec. of State, to Messrs. Livingston and Monroe, May 28, 180.3.
MSS. lust., Ministers.

"Congress witnessed, at their last session, the extraordinary agita-
tion ])roduced in the public mind by the suspension of our right of
deposit at the port of New Orleans, no assignment of another place
having been made according to treaty. They were sensible that the
continuance of that privation would be more injurious to our nation
than any consequences which could flow from any mode of redress, but
reposing just confidence in the good faith of the Government whose
officer had committed the wrong, friendly and reasonable representa-
tions were resorted to, and the right of deposit was restored.

"Previous, however, to this period we had not been unaware of the
danger to which our peace would be perpetually exposed while so
im])ortant a 'kay to the commerce of the Western country remained
under foreign power. Difficulties, too, were presenting themselves as
to the navigation of other streams, which, arising within our territo-
ries, pass through those adjacent. Propositions had, therefore, been
authorized for obtaining on fair conditions the sovereignty of New
Orleans, and of other possessions in that quarter interesting to our
quiet, to such extent as was deemed practicable; and the provisional
appropriation of two millions of dollars, to be applied and accounted
for by the President of the United States, intended as part of the price,
was considered as conveying the sanction of Congress to the acquisition
proposed. The enlightened Government of France saw, with just dis-
cernment, the importance to both nations of such liberal arrangements
as might best and permanently promote the peace, friendship, and
interests of both; and the property and sovereignty of all Louisiana,
which had been restored to them, have on certain conditions been
transferred to the United States by instruments bearing date the 30th
of April last. When these shall have received the constitutional sanc-
tion of the Senate, they will without delay be communicated to the
Ee]»resentatives also for the exercise of their functions as to those con-
ditions which are within the powers vested by the Constitution in Con-
gress. While the property and sovereignty of the Mississippi and its
waters secure an independent outlet for the produce of the Western
States, and an uncontrolled navigation through their whole course,
free from collision with other powers and the dangers to our peace from
that source, the fertility of that country, its climate and extent, promise
in due season important aids to our Treasury, an ample provision for
556

CHAP. III.] "ACCRETION, NOT COLONIZATION." [§ 72.

our posterity and a wide-spread field for the blessings of freedom and
equal laws;"

President Jefferson, Tliinl Anmial Message 1803. See infra, (i 148, as to treaty of
purchase. Tbtit tbo purohaso of Louisiana was approved by John Adams,
see 9 John Adams's Works, 631, 032.

" It will 1)6 objected to our receiving Cuba that no limit can then be
drawn to our future acquisitions. Cuba can be defeiuletl by us without
a navy, and this develops the principle which ought to limit our views.
Nothing should ever be accepted which would require a navy to defend
it."

Mr. Jefferson to President Madison, Apr. 27, 1809. 5 Jeff. Works, 443.
The negotiations, under Mr. Monroe's Presidency, for the purchase of Florida,
are noticed infra, § IGl. The argument chiefly pressed by Mr. J. Q. Adams,
Sec. of State, when advocating the treaty, was that of contiguity.

In December, 1822, the Government of St. Salvador proposed its
annexation to the United States, the object being alleged to be the
escape from forced annexation to Mexico under Yturbide. The ofier,
on the overthrow of the Government of Yturbide, was withdrawn.

Mr. Clay. Sec. of State, to Mr. Williams, Feb. 10, 192G. MSS. Inst., Ministers.
For offer by President Jacksou to purchase from Mexico the Bay of San Fran-
cisco and the adjacent shore for half a million of dollars, and for further
offer as to x>urchasing Texas, see Mr. Forsyth, Sec. of State, to Mr. Butler,
Aug. (i, Nov, 9, 1835. MSS. Inst., Mex.
President Van Bureu's message of Oct. 3, 1837, with correspondence relative to
proposed annexation of Texas, is in House Ex. Doc. No. 40, 25th Cong.,
Ist sess.
As to recognition and annexation of Texas, see supra, $ 70.
As to assumjitiou of incumbrances of Texas, see supra, § 5.
lu the Br. and For. St. Pap. for 1841-'42, vol. 30, are given a series of documents
relating to the annexation of Texas. In the same work for 1842-'43, vol. 31, are the
following :

Mr. Waddy Thompson (Mexico) to Mr. Webster (Sec), July 30, 1842, inclosing
circular of Mexican minister of foreign relations to diplomatic corps as
to alleged violation of neutrality by the United States, July 6, 1842.
Mr. Thompson to Mr. Webster, Sept. 10, 1842.
Mr. Bocanegra to Mr. Thompson, Sept. 10, 1842.
In the same work for 1844-'45, vol. 33, are the following :

Lord Aberdeen, secretary of foreign affairs, to Mr. Pakenham, British minister
at Washington, Dec. 26, 1843, stating that while Great Britain had ac-
knowledged the independence of Texas, she did not desire to establish
dominant influence in that state, or to use any undue pressure there for the
abolition of slavery.
Messrs. Van Zandt and Henderson, envoys from Texas, to Mr. Calhoun, Apr.

15, 1844, stating financial condition of Texas.
Mr. Buchanan (Sec.) in reply to Gen, Almonte, Mar. 10, 1845.
The envoy of France to the President of Texas, May 30, 1845, as to terms of

recognition of independence of Texas by Mexico.
Acceptance of such recognition by Texas, May 10, 1845.
Armistice proclaimed by President of Texas, June 15, 1845.

557

5 72.] INTERVENTION. [CHAP. III.

Message of President of the TJuited Staten to Senate, suljmitting treatj' of

annexation, Apr. 22, 1844.
Message of President to House of Representatives, June 10, 1844, announcing

rejection of treaty by Senate and suggesting legislation.
Joint resolution of annexation. Mar. 1, 1845.
Proclamation of President of Texas, Apr. 15, 1845, calling for legislation on

such annexation.
Ordinance of Texas of July 4, 1845, accepting annexation.
Constitution of the State of Texas, Aug. 27, 1845.

In Lesur's Annuaire for 1832, app. 82, 114, are given many important papers
relative to the annexation of Texas. On the same subject may bo con-
sulted 2 Lawrence Com. sur droit int., 332,^.

"By the treaty of the 22d of February, 1819, between the United
States and Spain, the Sabine was adojjted as the line of boundary
between the two powers. Up to that period no considerable coloniza-
tion had been effected in Texas ; but the territory between the Sabine
and the Eio Giande being confirmed to Spain by the treaty, applications
were made to that power for grants of land, and such grants, or per-
missions of settlement, were, in fict, made by the Spanish authorities
in favor of citizens of the United States proposing to emigrate to Texas
in numerous families, before the declaration of independence by Mexico.
And these early grants were confirmed, as is well known, by successive
acts of the Mexican Government, after its separation from Spain. In
January, 1823, a national colonization law was passed, holdiug out
strong inducements to all persons who should incline to undertake the set-
tlement of uncultivated lands ; and although the Mexican law prohibited
for a time citizens of foreign countries from settling, as colonists, in ter-
ritories immediately joining such foreign countries, yet even this restric-
tion "was afterwards repealed or suspended, so that, in fact, Mexico, from
the commencement of her political existence, held out the most liberal
inducements to immigrants into her territories, with full knowledge that
these inducements were likely to act, and expecting they would act, with
the greatest effect upon citizens of the United States, especially' of the
Southern States, whose agricultural pursuits naturally rendered the rich
lands of Texas, so well suited to their accustomed occupation, objects
of desire to them. The early colonists of the United States, introduced
by Moses and Stephen Austin under these inducements and invitations,
were persons of most respectable character, and their undertaking was
attended with very severe hardships, occasioned in no small degree by
the successive changes in the Government of Mexico. They neverthe-
less persevered and accomplished a settlement. And, under the en-
couragements and allurements thus held out by Mexico, other emigrants
followed, and many thousand colonists from the United States and else-
where had settled in Texas within ten years from the date of Mexican
independence. Having some reasons to comi)lain, as they thought, of
the Government over them, and especially of the aggressions of the
558

CHAP. III.] "ACCRKTIOX, NOT COLONIZATION." [§ 72.

Mexican military stationed in Texas, they sought relief by applying to
the supreme Government for the separation of Texas from Coahuila, and
for a local government for Texas itself. Not having succeeded in this
object, in the process of time, and in the progress of events, they saw
fit to attempt an entire separation from Mexico, to set up a Government
of their own, and to establish a political sovereignty. War ensued ;
and the battle of San Jacinto, fought on the 21st of Ayiril, 1S3G, achieved
their independence. The war was from that time at an end, and in
March following the independence of Texas was formally acknowledged
by the Government of the United States."

Mr. Webster, Sec. of State, to Mr. Thompson, July 8, 1842. MSS. List., Mex.

f) Webster's Works, 448.
See, fnrtber, as to reco<;nition and annexation of Texas, supra, ^^ 5,70.

In a speech on the Oregon bill, delivered in the Senate, on January
24, 1843, Mr. Ualhoun said:

" Time is acting for us ; and if we shall have the wisdom to trust its
operation, it will assert and maintain our right with resistless force,
without costing a cent of money or a drop of blood. There is often, in
the afiairs of Government, more efficiency and wisdom in non-action
than in action. All we want to effect our object in this case is 'a wise
and masterly inactivity.' Our population is rolling towards the shores
of the Pacilic with an impetus greater than what we realize. It is one
of those forward movements which leaves anticipation behind. In the
period of thirty-two years which have elapsed since I took my seat in
the other house, the Indian frontier has receded a thousand miles to the
west. Atthattime ouri)opulation was much less than half what itis now.
It was then increasing at the rate of about a quarter of a million annually ;
it is now not less than six hundred thousand; and still increasing at the
rate of something more than 3 percent, compound annually. AttJjatrate
it will soon reach thej^early increase of a million. If to this be added that
the region west of Arkansas and the State of Missouri, and south of the
Missouri River, is occupied by half-civilized tribes, who have their lands
secured to them by treaty (and which will prevent the spread of i)0])ula-
tion in that direction), and that this great and increasing tide will be
forced to takethocomparativelynarrowchannel tothenorth of thatriver
and south of our northern boundary, some conception may be formed of
the strength with which the current will run in that direction and how
soon it will reach the eastern gorges of the Eocky Mountains. I say some
conception, for I feel assured that the reality will outrun tlie anticipa-
tion. In illustration, I will repeat what I stated when I hrst addressed
the Senate on this subject. As wise and experienced as was President
Monroe, as much as he had witnessed of the growth of our country in
his time, so inadequate was his conception of its rapidity, that near the
close of his administration— in the year 1824 — he jn-oposed to colonize
the Indians of New York and those north of the Ohio Kiver and east
of the Mississippi, in what is now called the Wisconsin Territory, under
the impression that it was a portion of our territory so remote that they
would not be disturbed by our increasing poi)ulation for a long time to
come. It is now but eighteen years since, and already, in that short
period, it is a great and flourishing territory ready to knock at our door
for admission as one of the sovereign members of the Union. But what
is still more striking, what is really wonderful and almost miraculous is,
that another territory (Iowa), still farther west (beyond <the Mississippi),

559

§ 72.] INTERVENTION. [CHAP. III.

has sprung up as if by magic, and has already outstripped Wisconsin,
and may knock for entrance before she is prepared to do so. Such is
the wonderful growth of a population which has attained the number
ours has — yearly increasing at a compound rate — and such the impetus
with which it is forcing its way, resistlessly, westward. It will soon,
far sooner than anticipated, reach the Rocky Mountains, and be ready
to pour into the Oregon Territory, when it will come into our possession
without resistance or struggle; or, if there should be resistance, it
woukl be feeble and ineffectual. We should then be as much stronger
there, comparatively, than Great Britain, as she is now stronger than
we are ; and it would then be as idle for her to attempt to assert and
maintain lier exclusive claim to the territory against us, as it would now
be in ns to attempt it against her. Let us be wise and abide our time;
and it will accomplish all that we desire with more certainty and with
infinitely less sacrifice than we can without it."
4 Calhoun's Works, 245 #.

The independence of Mexico having been acknowledged in 1843, not
only by the United States, but by the principal Euroi)ean powers, and
Texas having for eight years resisted successfully Mexican attempts at
subjugation, the annexation of Texas by the United States cannot be
justly complained of by Mexico as an invasion of international law.

Mr. Upshur, Sec. of State, to Mr. Thompson, Oct. 20, 1843. MSS. Inst., Mes.
See Mr. Upshur to Mr. Green, Apr. 19, 1844, Hid.

" It is our policy to increase by growing and spreading out into un-
occupied regions, assimilating all we incorporate. In a word, to increase
by accretion, and not through conquest by the addition of masses held
together bj' the cohesion of force. No system can be more unsuited to
the latter i^rocess, or better adapted to the former, than our admirable
Federal system. If it should not be resisted in its course, it will proba-
bly fulfill its destiny, without disturbing our neighbors or putting in
jeopardy the general peace ; but if it be op])Osed by foreign interfer-
ence, a new direction would be given to our energy, much less favorable
to harmony with our neighbors and to the general peace of the world.
The change would be undesirable to us, and much less in accord with
what I have assumed to be primary objects of policy on the part of
France, England, and Mexico."

Mr. Calhoun, Sec. of State, to Mr. King, Aug. 12, 1844. MSS. Inst., France.

" No measure of policy has been more steadily or longer pursued, and
that by both of the great parties into which the Union is divided, [than
the annexation of Texas]. Many believed that Texas was embraced in
the cession of Louisiana, and was improperly, if not unconstitutionally,
surrendered by the treaty of Florida in 1819. Under that impression,
and the general conviction of its importance to the safety and welfare
of the Union, its annexation has been an object of constant pursuit
ever since. It was twice attempted to acquire it during the administra-
tion of Mr. Adams, once in 1825, shortly after he came into power, and
again in 1827. It was thrice attempted under the administration of his
successor. General Jackson, first in 1829, immediately after he came
560

CHAP. III. J "accretion, NOT COLONIZATION." [§ 72.

into power, agiiiu iu 1833, aud limilly in 1835,just bclore Texas declared
her independence. Texas herself made a proposition for annexation in
1837, at the commencement of Mv. Van Buren's administration, which
he declined, not, however, on the grounds of opposition to tlie policy of
the measure. The United States had previously acknowledged her
independence, and the exami)le has since been followed by France and
Grt'at Britain. The latter, soon after her recognition, began to adopt a
line of policy in reference to Texas which has given greatly increased
importance to the measure of annexation, by making it still more essen-
tial to the safety and welfare both of her and tlie United States."

Mr. Calliodii, Sec. of State, to Mr. Sbauiion, Sept. 10, 1844. MSS. Inst., Mex.

"Texas had declared her independence, and maintained it by her
arms for more than nine years. She has had an organized Govern-
ment in successful operation during that period. Her separate exist-
ence as an independent state had been recognized by the United States
and the princijial powers of Europe. Treaties of commerce and navi-
gation had been concluded with her by different nations, and it had
become manifest to the whole world that any further attempt on the
part of Mexico to conquer her or overthrow her Government would be
in vain. Even Mexico herself had become satisfied of this fact; and
while the question of annexation was pending before the peoi)]e of
Texas, during the past summer, the Government of Mexico, by a formal
act, agreed to recognize the independence of Texas on condition that
she would not annex herself to any other i)0wer. The agreen;ent to
acknowledge the independence of Texas, whether with or without this
condition, is conclusive against Mexico. The independence of Texas
is a fact conceded by Mexico herself, and she had no right or authority
to prescribe restrictions as to the form of Government which Texas
might afterward choose to assume."

President Polk, First Annual Messajje, 1845.

As to aasuui[)tion of Texas debt l)y tlio United Slates, see supra, '^ 5.

As to recognition of Texas, see nupra, <S 70.

In President Polk's message of April 28, 1848, after reciting an ofler
from Yucatan "to transfer the dominion and sovereignty of the penin-
sula to the United States," he says, '^ whilst it is not my pnri)()se to
recommend tiie ado])tion of any measure with a view to the acquisition
of the 'dominion and soveri'ignty over Yucatan,' yet, according to our
established policy, we could not consent to a transfer of this -dominion
and sovereignty' to any other power." Congress took no action on this
message of President Polk.

The correspondence in this connection is given in the Iiritish and Foreign
State Papers for 1860-'G1, pp. 1184/.

As to discussion in reference to Yucatan, see supra, '^ 57.

The correspondence of the United States with Yucatan relative to the inde-
pendence of that state and the offer of its sovereignty to the United States
will be found in Senate Ex. Doc. 40, 30th Cong., 1st sess. See also same
session Senate Ex. Doc. Nos. 45, 4-9. For other palters relative thereto
see the Br. and For. St. Pap. for 18G0-T)1. vol. 51.

S. Mis. ir,2-Yor,. I 30 ^^"^

§ 72.] INTERVENTION, [CHAP. III.

The policy of tlie United States on the subject of territorial growth
is discussed in the following letters of Mr. Everett:

" You arc well acquainted with the melancholy circumstances which
have hitherto prevented a replj' to the note which you addressed to
my ])redecessor on the 8th of July.

" That note, and the instruction of M. de Turgot of the 31st March,
with a similar communication from the English minister, and the projet
of a convention between the three i)owers relative to Cuba, have been
among the first subjects to which mj- attention has been called by the
President.

" The substantial portion of the proposed convention is expressed in
a single article in the following terms:

'"The high contracting parties hereby, severally and collectively, dis-
claim, now and for hereafter, all intention to obtain possession of the
Island of Cuba, and they respectively bind themselves to discounte-
nance all attempt to that effect on the i^art of any power or individuals
whatever.'

" ' The high contracting parties declare, severally and collectively,
that they will not obtain or maintain for themselves or for any one of
themselves any exclusive control over the said island, nor assume nor
exercise any dominion over the same.'

"The Presidetit has given the most serious attention to this proposal,
to the notes of the French and British ministers accompanying it, and
to the instructions of M. de Turgot and the Earl of Malmesbury, trans-
mitted with the project of the convention, and he directs me to make
known to you the view which he takes of this important ^nd delicate
subject.

"The President fully concurs with his predecessors, who have, on
more than one occasion, authorized the declaration referred to by M.
de Turgot and Lord Malmesbury that the United States could not see
with indifference the Island of Cuba fall into the possession of any other
European Government than Spain ; not, however, because we should
be dissatisfied with any natural increase of territory and power on the
part of France or England. France has within twenty years acquired
a vast domain on the nortliern coast of Africa, with a fair prospect of
indefinite extension. England, within. half a century, has added very
extensively to her Empire. These acquisitions have created no uneasi-
ness on the part of the United States.

" In like manner the United States have within the same period
greatly increased their territory. The largest addition was that of
Louisiana, which was purchased from France. These accessions of ter-
ritory have probably caused no uneasiness to the great European pow-
ers, as they have been brought about by the operation of natural causes,
and without any disturbance of the international relations of the prin-
cipal states. They have been followed also hy a great increase of mut-
562

CHAP. III.J "ACCKETION, NOT COLONIZATION." [§72.

ually beucticial commercial intercourse between the United States and
Europe.

"But the case would be different in reference to the transfer of Cuba
from Spain to any other European })o\ver. That event could uot take
place without a serious deranfjement of the interuational system dow
existing, and it would indicate designs in reference to this hemispliere
which could not but awaken alarm in the United States.

" We should view it in somewhat the same light in which France and
England would view the acquisition of some ini])ortant island in the
Mediterranean by the United States, with thisdilference, it is true, that
the attempt of the United States to establish themselves in Europe
would be a novelty, while the api)earance of a European power in this
part of the world is a familiar fact ; but this difference in the two cases
is merely historical, and would not diminish the anxiety which, on
political grounds, would be caused by any great demonstration of
European power in a new direction in America.

" M. de Turgot states that France could never see with indifference
the possession of Cuba by any power but Spain, and explicitly declares
that she has no wish or intention of appropriating the island to herself,
and the English minister makes the same avowal on behalf of his Gov-
ernment. ]\I. de Turgot and Lord Malmesbuiy do the Government of
the United States no more than justice in remarking that they have
often pronounced themselves substantially in the same sense. The
President does not covet the acquisition of Cuba for the United States.
At the same time he considers the condition of Cuba as mainly an
American question. The proposed convention proceeds on a different
principle. It assumes that the United States have no other or greater
interest in the question than France or England, whereas it is neces-
sary only to cast one's eye on the ma]) to see how remote are the rela-
tions of Europe, and how intimate those of the United States with this
island.

" The President, doing full justice to the friendly spirit in which his
concurrence is invited by France and England, and not insensible to
the advantages of a good understanding between the three powers in
reference to Cuba, feels himself, nevertheless, unable to become a party
to the proposed compact for the following reasons :

'' It is, in the first place, in his judgment, clear (as far as the respect
due from the Executive to a co ordinate branch of the Government will
permit him to anticipate its decision) that no such convention would be
viewed with favor by tlui Senate. Its certain rejection by that body
would leave the question of Cuba in a more unsettled ])osition than
it is now. This objection would not require the President to withhold
his concurrence from the convention if no other objection existed, and
if a strong sense of the utility of the measure rendered it his duty, as
far as Executive action is concerned, to give his consent to the arrange-
ment. Such, however, is not the case.

563

§ 72.] INTERVENTION. [CHAP. III.

" The couvention would be of no value uuless it were lastiug ; accord-
ingly its terms express a perpetuity of purpose and obligation. !N^ow, it
may well be doubted whether the Constitution of the United States
would allow tUe treaty- making power to impose a permanent disability
on the American Government for all comiug time, and prevent it, nnder
any future change of circumstances, from doing what has been so often
done in times past. In 1803 the United States purchased Louisiana of
France, and in 1819 they purchased Florida of Spain. It is not within
the competence of the treaty-making power in 1852 eflectually to bind
the Government, in all its branches, and for all coming time, not to make
a similar purchase of Cuba. A like remark, I imagine, may be made
even in reference both to France and England, where the treaty-making
power is less subject than it is with us to the control of other branches
of the Government.

" There is another strong objection to the proposed agreement.
Among the oldest traditions of the Federal Government is an aversion
to political alliances with European powers. In his memorable fare-
well address. President Washington says : ' The great rule of conduct
for us in regard to foreign lelations is, in extending our commercial re-
lations, to have with them as little political connection as possible. So
far as we have alreadj' formed engagements let them be fulfilled with
perfect good faith. Here let us stop.' President Jefierson, in his in-
augural address in 1801, warned the country against 'entangling alli-
ances.' This expression, now become proverbial, was unquestionably
used by Mr. Jeiferson in reference to the alliance with France of 1778,
an alliance at the time of incalculable benefit to the Cnited States, but
which, in less than twenty years, came near involving us in the wars
of the French revolution, and laid the foundation of heavy claims
upon Congress, not extinguished to the present day. It is a significant
coincidence that the particular provision of the alliance which occa-
sioned these evils was that under which France called upon us to aid
her in defending her West Indian possessions against England. Noth-
ing less than the unbounded influence of Washington rescued the
Union from the perils of that crisis, and preserved our neutrality.

" But the President has a graver objection to entering into the pro-
posed convention. He has no wish to disguise the feeling that the
compact, although equal in its terms, would be very unequal in sub-
stance. France and England by entering into it would disable them-
selves from obtaining possession of an island remote from their seats
of Government, belonging to another European power, whose natural
right to possess it must always be as good as their own — a distant island
in another hemisi)heie, and one which, by no ordinary or peaceful course
0^ things, could ever belong to either of them. If the present balance
of power in Eiiro[)e should be broken up — if Spain should become una-
ble to maintain the island in her possession, and France and England
should be engaged in a death struggle with each other— Cuba might
564

CHAP. III.] ''ACCRETIOX, NOT COLONIZATION." [§ 72.

tlieu be the prize of the victor. Till the.se events ;ill take place, the
President does not see how Cuba can belong to any P^nropean power
but Spain.

"The United States, on the other hand, would, by the j)roi)0.sed con-
vention, disable themselves from making an acquisition which might
take jdace without any disturbance; of existing foreign relations, and in
the natural order of things. The Island of Cuba lies at our doors. It
commands the approach to the Gulf of Mexico, which washes the shores
of five of our States. It bars the entrance of that great river which
drains half the Xorth American continent, and with its tributaries forms
the largest system of internal water communication in the world. It
keeps watch at the doorway of our intercourse with California by the
Isthmus route. If an island like Cuba, belonging to the Spanish Crown,
guarded the entrance of the Thames and the Seine, and the United
States should propose a convention like this to France and England,
those powers would assuredly feel that the disability assumed by our-
selves was far less serious than that which we asked them to assume.

" The opinions of American statesmen at different times and under
varying circumstances have differed as to the desirableness of the ac-
quisition of Cuba by the United States. Territorially and commercially,
it would in our hands be an extremely valuable possession. Under
certain contingencies it might be almost essential to our safety. Still,
for domestic reasons, on which in a communication of this kind it might
not be i)roper to dwell, the President thinks that the incorporation of
the island into the Union at the i)re.sent time, although effected with
the consent of Spain, would be a hazardous measure, and he would
consider its acquisition by force, except in a just war with Spain (should
an event so gravely to be deprecated take place), as a disgrace to the
civilization of the age.

" The President has given ample proof of the sincerity with which he
holds these views. He has thrown the whole force of his constitutional
power against all illegal attacks upon the island. It would have been
perfectly easy for him, without any seeming neglect of duty, to allow
projects of a formidable character to gather strength by connivance.
No amount of obloquy at home, no embarrassments caused by the indis-
cretions of the colonial government of Cuba, have moved him from the
path of duty in this respect. The captain -general of that island, an offi-
cer apparently of upright and conciliatory character, but probably more
used to military command than the management of civil affairs, has, on
a punctilio in reference to the ])urser of a private steamship (who seems
to have been entirely innocent of the matters laid to his charge), refused
to allow passengers and the mails of the United States to be landed
from a vessel having him on board. This certaiidy is a very extraor-
dinary mode of animadverting ui)on a supposed abuse of the liberty of
the press by the subject of a foreign Government in his native country.
The captain-general is not permitted by his Government, .3,000 miles

565

§ 72.] INTERVENTION. [CHAP. III.

off, to liold any diplomatic intercourse with the United States. He is
subject in no degree to the direction of the Spanish minister at Wash-
ington ; and the President lias to choose between a resort to force, to
compel the abandonment of this gratuitous interruption of commercial
intercourse (which would result in war), and a delay of weeks and
months, necessary for a negotiation with Madrid, ^th all the chances
of the most deplorable occurrences in the interval — and all for a trifle,
that ought to have admitted a settlement by an exchange of notes be-
tween Washington and the Havana. The President has, ho^vever, pa-
tiently submitted to these evils, and has continued faithfully to give to
Cuba the advantages of those principles of the public law under the
shelter of which she has departed, in this case, from the comity of na-
tions. But the incidents to which I allude, and which are still in train,
are among many others which point decisively to the expediencj" of
some change in the relations of Cuba; and the President thinks that
the influence of France and England with Spain would be well em-
ployed in inducing her so to modify the administration of the Govern-
ment of Cuba as to afford the means of some prompt remedy for evils
of the kind alluded to, which have done much to increase the spirit of
unlawful enterprise against the island.

''That a convention such as is proposed would be a transitory ar-
rangement, sure to be swept away by the irresistible tide of affairs in a
new country, is, to the apprehension of the President, too obvious to
require a labored argument. The project rests on principles applicable,
if at all, to Europe, where international relations are, in their basis, of
great antiquity, slowly modified, for the most part, in the progress of
time and events, and not applicable to America, which, but lately a
waste, is filling up with intense rapidity, and adjusting on natural prin-
ciples those territorial relations which, on the first discovery of the con-
tinent, were in a good degree fortuitous.

"The comparative history of Europe and America, even for a single
century, shows this. In 1752 France, England, and Spain were not
materially different in their political i)osition in Europe from what they
now are. They were ancient, mature, consolidated states, established
in their relations with each other and the rest of the world — the leading
I)Owers of Western and Southern Europe. Totally different was the
state of things in America. The United States had no existence as a
people ; a line of English colonies, not numbering much over a million
of inhabitants, stretched along the coast. France extended from the
Bay of Saint Lawrence to the Gulf of Mexico, and from the Alleghanies
to the Mississippi ; beyond which, westward, the continent was a wilder-
ness, occupied by wandering savages, and subject to a conflicting and
nominal claim on the part of France and Spain. Everything in Europe
was comparatively fixed ; everything in America, provisional, incipient,
and temporary, except the law of progress, which is as organic and vital
in the youth of states as of individual men. A struggle between the
5GC

CHAP. III.] . "accretion, NOT COLONIZATION." [§ 72.

provincial authorities of France and England for the i)o.sse88ion of a
petty stockade at the confluence of the Monongalicla and AUeghany,
kindled the seven years' war; at the close of which, the great European
powers, not materially affected in their relations at home, had under-
gone astonishing changes on this continent. France had disappeared
from the map of America, whose inmost recesses had been penetrated
by her zealous missionaries and her resolute and gallant adventurers;
England had added theCanadas to her transatlantic dominions; Spaiu
had become the mistress of Louisiana, so that, in the language of the
archbishop of Mexico, in 1770, she claimed Siberia as the northern
boundary of New Spain.

" Twelve years only from the treaty of Paris elapsed, and another
great change took place, fruitful of still greater changes to come. The
American Kevolution broke out. It involved France, England, and
Spain in a tremendous struggle, and at its close the United States of
America had taken their place in the family of nations. In Europe the
ancient states were restored substantially to their former equilibrium,
but a new element, of incalculable importance in reference to territorial
arrangements, is henceforth to be recognized in America.

"Just twenty' years from the close of the war of the American Kevo-
lution, France, by a treaty with Spain — of which the provisions have
never been disclosed — possessed herself of Louisiana, but did so only to
cede it to the United States; and in the same year Lewis and Clark
started on their expedition to plant the flag of the United Slates on the
shores of the Pacific. In 1819 Florida was sold by Spain to the United
States, whose territorial possessions in this way had been increased
threefold in half a century. This last acquisition was so much a matter
of course that it had been distinctly foreseen by the Count Aranda, then
prime minister of Spain, as long ago as 1783.

" But even these momentous events were but the forerunners of new
territorial revolutions still more stu])endous. A dynastic struggle be-
tween the Emperor Napoleon and Spain, commencing in 1808, convulsed
the peninsula. The vast possessions of the Spanish Crown on this conti-
nent — vice-royalties and captain-generalships, filling tlie space bt'tween
California and Cape Horn — one after another, asserted their independ-
ence. No friendly power in Europe at that time was able, or, if able,
was willing, to succor Spain, or aid her to prop the crumbling buttresses
of her colonial empire. So far from it, when France, in 1823, threw an
army of one hundred thousand men into S])ain to control her doau\stic
politics, England thought it necessary to counteract the movement l)y
recognizing the independence of the Spanish provinces in America. In
the remarkable language of the distinguished minister of the day, iu
order to redress the balance of power in Europe, he called into exist-
ence a New World in the West — somewhat overrating, perhaps, the
extent of the derangement in the Old Woild, and not doing full justice

567

§ 72.] INTERVENTION. . [CHAP. III.

to the position of the United States in America, or their influence on
the fortunes of their sister Kepublics on this continent.

" Thus, in sixty years from the close of the seven years' war, Spain,
like France, had lost the last remains of her once imperial i)ossessions
on this continent. The United States, meantime, were, by the arts of
peace and the healthful progress of things, rapidly enlarging their
dimensions and consolidating their power.

" The great march of events still went on. Some of the new Eepub-
lics, from the effect of a mixture of races, or the want of training in lib-
eral institutions, showed themselves incapable of self-government. The
province of Texas revolted from Mexico by the same right by which
Mexico revolted from Spain. At the memorable battle of San Jacinto,
in 1836, sbe passed the great ordeal of nascent states, and her inde-
pendence was recognized by this Government, by France, by England,
and other Enro])ean powers. Mainly peopled from the United States,
she sought naturally to be incorporated into the Union. The offer was
repeatedly rejected by Presidents Jackson and Van Buren, to avoid a
collision with Mexico. At last the annexation took i^lace. As a do-
mestic question, it is no fit subject for comment in a communication to
a foreign minister ; as a question of public law, there never was an
extension of territory more naturally or justifiably made.

" It produced a disturbed relation with the Government of Mexico;
war ensued, and in its results other extensive territories were, for a
large pecuniary compensation on the part of the United States, added
to the Union. Without adverting to the divisions of opinion which
arose in reference to this war, as must always happen in free countries
in reference to great measures, no person, surveying these events with
the eye of a comprehensive statesmanship, can fail to trace in the main
result the undoubted operation of the law of our political existence.
The consequences are before the world. Vast provinces,, which had
languished for three centuries under the leaden sway of a stationary
system, are coming under the influences of an active civilization. Free-
dom of speech and the press, the trial by jury, religious equality, and
representative Government, have been carried by the Constitution of
the United States, into extensive regions in which they were unknown
before. By the settlement of California the great circuit of intelligence
round the globe is completed. The discovery of the gold of that region —
leading, as it did, to the same discovery in Australia— has touched the
nerves of industry throughout the world. Every addition to the terri-
tory of the American Union has given homes to European destitution
and gardens to European want. From every part of the United King-
dom, from France, from Switzerland and Germany, and from the ex-
tremest north of Europe, a march of immigration has been taken up
such as the world has never seen before. Into the United States —
grown to their present extent in the manner described — but little less
than half a million of the population of the Old World is annually pour-
568

CHAP. III.] "accretion, not coi.onization." [§ 72.

ill?:, to be immediately incorporated into an industrious and i)rosi)erou8
community, in the bosom of which they find imlitical :ind relij^ious lib-
erty, social position, employment, and bread. It is a fact which would
defy belief, were it not the result of official inquiry, that the immigrants
to the United States from Ireland alone, besides havinji^ subsisted them-
selves, have sent back to their kindred, fur the three last years, nearly
five millions of dollars annually; thus doubling in three years the pur-
chase-money of Louisiana.

" Such is the territorial development of the United States in the past
century. Is it possible that Europe can contemplate it with an un-
friendly or jealous eye ? What would have been her condition, in these
trying years, but for the outlet we have furnished for lier starving mill-
ions?

" Spain, meantime, has retained of her extensive dominions in this
bemispliere but the two Islands of Cuba and Porto Rico. A respectful
sympathy with the fortunes of an ancient ally and a gallant people, with
whom the United States have ever maintained the most friendly rela-
tions, would, if no other reason existed, make it our duty to leave her
in the undisturbed possession of this little remnant of her mighty trans-
atlantic empire. The President desires to do so ; no word or deed of
his will ever question her title or shake her possession. But can it be
expected to last very long'? Can it resist this mighty (jurrent in the
fortunes of the world 1 Is it desirable that it should be so ! Can it be
for the interest of Spain to cling to a possession that can only be main-
tained by a garrison of twenty-five or thirty thousand troops, a powerful
naval force, and an annual expenditure, for both arms of the service, of
at least twelve millions of dollars'? Cuba, at this moment, costs more
to Spain than the entire naval and military establishment of the United
States costs the Federal Government. So far from being really injured
by the loss of this island, there is no doubt that, were it peacefully trans-
ferred to the United States, a prosperous commerce between Cuba and
Spain, resulting from ancient associations and common language and
tastes, would be far more productive than the best contrived system of
colonial taxation. Such, notoriously, has been the result to Great Brit-
ain of the establishment of the independence of the United States. The
decline of Spain from the position which she held in the time of Charles
the Fifth is coeval with the foundation of her colonial System ; while
within twenty-five years, and since the loss of most of her colonies, she
has entered upon a course of rapid im])rovement unknown since the
abdication of that Emjieror.

" I will but allude to an evil of the first magnitude : I mean the Af-
rican slave-trade, in the suppression of which France and England take
a lively interest — an evil which still forms a great reproach u{)on the
civilization of Christendom, and perpetuates the barbarism of Africa,
but for which it is to be feared there is no hope of a complete remedy

while Cuba remains a Spanish colonv.

5G9

§ 72.] INTERVENTION. [CIIAP. III.

"But, whatever may be thoiiglit of these last suggestious, it would
seem imi)o.ssiblelbr auy oue who reflects upou the events glanced at in
this note to mistake the law of Ann rican growth and progress, or think
it can be ultimately arrested by a convention like that proi)Osed. In
the judgment of the President, it would be as easy to throw a dam from
Cape Florida to Cuba in the Lope of stopping the flow of the Gulf
stream, as to attempt, by a compact like this, to fix the fortunes of
Cuba 'now and tor hereafter'; or, as expressed in the French text of
tlie convention, 'for the i)resent as for the future' (j^owr le present comme
pour r<n'cnir), that is, for all coming time The history of the past — of
the recent past — affords no assurance that twenty years hence France
or England will even wish that Spain should retain Cuba; and a cen-
tury hence, judging of what will be from what has been, the pages which
record this proposition will, like the record of the family compact be-
tween France and Spain, have no interest but for the antiquary.

'' Even now the President cannot doubt that both France and Eng-
land would prefer any change in the condition of Cuba to that wliicli
is most to be apprehended, namely, an internal convulsion which should
renew the horrors and the fate of San Domingo.

"I will intimate a final objection to the proposed convention. M. de
Turgot and Lord Malmesbury put forward as the reason for entering
into such a compact 'the attacks which have lately been made on the
Island of Cuba by lawless bands of adventurers from the United States,
with the avowed design of taking possession of that island.' The Presi-
dent is convinced that the conclusion of such a treaty, instead of putting
a sto]) to these lawless proceedings, would give a new and a powerful
impulse to them. It would strike a death-blow to the conservative
policy hitherto pursued in this country toward Cuba. oSTo administra-
tion of this Government, however strong in the public confidence in
other respects, could stand a day under the odium of having stipulated
with the great powers of Europe, that in no future time, under no
change of circumstances, by no amicable arrangement with Sitain, by
no act of lawful war (should that calamity unfortunately occur), by no
consent of the inhabitants of the island, should they, like the posses-
sions of Spain on the American continent, succeed in rendering them-
selves inde])endent; in tine, by no overruling necessity of self-preserva-
tion should the United States ever make the acquisition of Cuba.

"For these reasons, which the President has thought it advisable,
considering the importance of the subject, to direct me to unfold, at
some length, he leels constrained to decline resi)ectfully the invitation
of France and England to become a party to the proposed convention.
He is persuaded that these friendly powers will not attribute this re-
fusal to any insensibility on his part to the advantages of the utmost
harmony between the great maritime states on a subject of such im-
portance. As little will Spain draw any unfavorable inference from
this refusal; the rather, as the emphatic disclaimer of any designs
570

CHAP. TII.J "accretion, NOT COLONIZATION." [§ 72

against Cuba on the part of this Government, contained in the present
note, aiiords all the assurance which the President can constitutionally,
or to any useful purpose, give of a practical concurrence with France and
England in the wish not to disturb the possession of that island by
Spain."

Mr. Everett, Sec. of State, to Mr. Sartiges, Dec. 1, 1852. MSS. Notes, France.
This uote wnn accepted by Mr. Marcy and Mr. Cass, succeeding Secreta-
ries of State, as the basis of the policy of the Department in this line.

"Your dispatch of IGth February last to Mr. Crampton has lately ap-
peared in our public papers. As it is in reality, if not in form, a rei)ly
to my letter of the 1st December, 1852, on the subject of Cuba, I r(\gret
that it Avas not prejnired and sent before my retirement IVom the De-
j)artment of State. But though I uuist now do it as a private individual,
1 feel as if it were to some extent my duty to answer it. I sludl en-
deavor to do so in a manner consistent with my sincere respect for your
public character, and a lively recollection of your personal kindness
during my residence in England.

" Before remarking on the contents of your letter I will observe that,
though it contains some courteous expressions, its tone is, upon the
whole, not quite as conciliatory as might have been exjjected, consider-
ing that my letter of the 1st December was altogether respectful and
friendly toward the two ])owers, both in form and in substance. I have
heard that in presenting this correspondence to Parliament you indulged
' in some sarcastic remarks,' but J have not seen any rei)ort of them.
Your dispatch is not free from a shade of sarcasm in one or two sen-
tences. This I shall endeavor to avoid in reply, not that it would be
diflicult to follow you into that field, but because I cannot think that an
encounter of wits between us would be an edifying spectacle, or one
which would promote any desirable national object.

"You say that in my letter of the 1st December I entered into 'ar-
guments not required by the simple nature of the question before me';
and the length of my letter has been complained of in other quarters.
The question propounded to us was ccrtainl^^ in one sense simple, as
every question is that can be answered ' Yes' or ' No.' But how va-
rious, com])licated, and important the interests and relations involved in
it! Besides, the organ of every Government must be the only judge of
the proper length and relevancy of his replies to the communications of
foreign powers. The j)roposal, to which I was returning an answer,
jointly made by two of the leading powers of Europe, related to the
most important subject in the circle of our foreign relations. 1 thought
that a few paragraphs were well employed in unlblding the views of
the President on this subject, and the reasons why he declined entering
into a compact purporting to bind the three Governments for all coming
time to a certain line of ])olicy, in a case of so nuich importance.

" You will recollect that the members of our executive Government do
not sit in Congress. Those expositions which are made in your J'arlia-
ment by ministers — in speeches not unfrequently of two and three,
sometimes four and five hours in length — must be made in this country
in a Presidential message (rarely alluded to by your press without a
sneer at its length), or an Executive report or dispatch. My letter of
the 1st December would make a speech of about an hour, which does not
seem to me immoderate Jor such a subject. However, a little greater
fullness of statement and argument, in papers expected to come before

671

§ 72.] INTERVENTION. [CHAP. III.

llie i)ul)lic, is, it must be confessed, in linnnony Avitli tlio character of
our Government, and is generally indulged in.

" You observe that ' the absorption or annexation of Louisiana in
1803, of Florida in 1819, of Texas in 1845, and of California in 1848, had
not escaped the two powers; still less did they require to be reminded
of the seven years' war, or of the American war.' But facts may be
mentioned for illustration or argument as well as information. Most cer-
tainly the important and notorious events named by you — leading inci-
dents of the history of the United States and of the svorld — cannot be
supposed to have escaped the Governments of England and France, who
were parties to some of the most important of the transactions in ques-
tion. I had no thought of ' reminding' your Government of the events
of the seven years' war and of the American Revolution as matters of
historical fact of which they were ignorant; though I really doubt, and
beg to say it witliout offense, whether there are many individuals in the
Government of either country possessed of an accurate and precise
knowledge of the facts hastily sketched by me. That sketch, however,
of the territorial changes which have taken place on this continent dur-
ing the last century was intended as an illustration of the proposition
that our entire history shows it to be chimerical to attempt, in reference
to si)ecific measures, to bind up for all future time the discretion of a
Government established in a part of the world of which so much is still
lying in a state of nature.

" i had another motive. The public opinion of Christendom, created
in a good degree by the press, has become an element of great and in-
creasing iiiHuence in the conduct of international affairs. Now, it is
very much the habit of a considerable portion of the European i)ress to
speak of the steady and rapid extension of the territory of the United
States as the indication of a grasping spirit on the ])arr of their Gov-
ernment and ])eople. The subject is rarely alluded to by one school of
transatlantic public writers for any other purpose. Thus the i)ublic
mind of the civilized world is poisoned against us. There is not only
manifested, on the part of these writers, an entire insensibility to the
beauty and grandeur of the work that is going on — more beneficent, if
possible, to Europe than to us, in the relief it is aff'ording her — but we
are actually held up at times as a nation of land pirates. It was parth'
my object to counteract this disposition ; to show that our growth had
been a natural growth ; that our most important accessions of territory
had taken place by great national transactions, to which England,
France, and Spain had been parties, and in other cases by the opera-
tion of causes which necessarily influence the occupation and settlement
of a new country, in strict conformity with the law of Jiations an.d not
in violation of it.

'•You say that 'it occurs to Her Majesty's Government to ask for
what ])urpose are these arguments introduced, with so much ])rei)ara-
tion and urged with so much ability,' and you answei' the question in
the following manner: ' It would appear that the purpose, not full ij
avotced but hardly concealed, is to ])rocure the admission of a doctrine
that the United States have an interest in Cuba to which Great Britain
and Fiance cannot i)retend.'

" Uerc a little unintentional injustice is done to my letter, in which
it is distiiK-tly stated more than once, for reasons set forth at length and "
very ])artially controverted by you, that the Government of the United
States considered the condition of Cuba ' as mainly an American ques-
tion,' in which they had a very deep interest and you a very limited one.

572

ciiAr. III.] ''accretion, not colonization." [§ 72.

iN^ot only was no attempt whatever made to conceal this doctrine, but it
was fullv avowed and reasoned out in niv letter of the 1st December,
185L'.

"To meet one of the chief {^jrounds on wlii(;h the United States rest
this claim, that of geograi)hical proximity, after some local allusions,
of which I do not perceive the exact bearing, you observe, in ellect, that
Cuba is somewhat nearer to Jamaica than it is to the nearest i)art of the
United States, and you consider this as showing- that we cannot have
a greater interest in the island than you have. Now, if Jamaica bore
the sanje relation to Great Britain which our States on and near the
Gulf of Mexico bear to the rest of the American Union, your rej)ly to
my argument would be good. But the direct reverse is the case. Ja-
maica is a distant colony, whose entire population (of which not more
than one tenth is of European origin) does not exceetl that of an English
city of the second class. It is, as I perceive from your speech of the 4th
August, a burden on theimi)erial treasury. It must in its i)resent state
stand high on the list of the colonies, which (as ai)pears from Lord Grey's
recent work on the colonial policy of your administration) are regarded
by more than one active and influential i)arty in England as incum-
brances of which she ought to get rid, if she could do so with credit.
How difierent, in all respects, the case with the States lying on the Gulf
of Mexico ! In extent of ^ea-coast, in the amount of valuable products
furnished to the world's commerce, in the command of rivers which
])enetrate the heart of the continent, they are a most im])ortant, as they
are an integral portion of the Union. They are numericallj" all but a
sixth i>art of it. The ver^' illustratian made use of by you strikingly
confirms instead of (confuting the doctrine that ' the condition of Cuba
is mainly an American question.'

"This proposition could be enforced by other strong arguments be-
sides those adduced in my letter of 1st December ; but as those argu-
ments, with the excei)tion just commented upon, have not been met by
you, 1 deem it unnecessary to enlarge upo.j the topic.

"But though the United States certainly consider that they have 'au
interest in the conditjou of Cuba to which Great Britain and Fiance
cannot pretend,' it is not, either in my letter, nor in any other American
state paper within my recollection, assumed that Great Britain and
France have 'wo interest in the maintenance in the ])resent .s^a/« (/mo,
and that the United States alone have a right to a voice in the matter.'
Our doctrine is, not that we have an absolutely exclusive interest in
the subject, but that we have a far deej^er and more immediate interest
than France or England can possibly lay claim to. A glance at the
map, one would think, would satisfy every imi)artial mind of this truth.

"In order to establish for France and England an equal interest with
the United States in the con<litiou of Cuba, you say: 'Great Britain is
in i^ossession, by treaty, of the Island of Trinidacl, which, in the last
century, was a colony of Spain. France was in ])ossi'ssit)ii at the com-
mencement of this century of Louisiana by voluntary cession of Spain.'
It is true that Spain was compelled by France to cede Trinidad to
Great Britain by the treaty of Amiens. If, while this cession was in
agitation — as it was for some time — the (Jnited States and any other
neutral ])ower (if there was any other), had exerted themselves to de-
feat it, and had invited y<ni and France to bind yourselves by a per-
petual compact never to acquire it, the interference, I ajiprehend, would
have been regarded as worse than gratuitous. I caiuiot see why we
have not as good a right to obtain, if w^e can, from Spain, the voluntary

573

§ 72.] INTERVENTION. [CHAP. III.

cession of Cuba, as you bad to accept tbe compulsory cession of Trini-
dad, wbicb is, by position and strength, the Cuba of the southeastern
Autilles.

"France was, as you say, at the beginning of this century in posses-
sion of Louisiana by the voluutary cession of Spain. This possession,
however (nominal at best), did not take place till seven months after
France had sold Louisiana to the United States for eighty millions of
francs, and it lasted only from the 30th November to the 20th Decem-
ber, 1803. The object of France in acquiring Louisiana was to re-es-
tablish herself in the interior of this country; an object, I need not
saj', as menacing to your North American possessions as to the United
States. Is it possible jou can think such a possession of Louisiana for
such a purpose a sufficient ground on the part of France for interfering
with our relations with Cuba? May she, a European power, without
consulting us, obtain from Spain in 1800 a cession of half the habit-
able portion of North America, a cession which threw her for fifteen
hundred miles on our western frontier, and not only shut us out from
the Pacific, but enabled her to close the Mississippi; and is it so very
unreasonable in us to decline her invitation to bind ourselves for all
time not to accept the cession of an island which lies within twenty-
live leagues of our coasf? Does she even derive her right thus to con-
trol our relations with (Juba in 1853 from her twenty days' possession
of Louisiana in 1803? What can be clearer than that, whatever right
accrued to her from that three weeks' possession (which was a mere
ceremonial affair, to give form to the transfer of the province to the
United States), must have passed to us by that transfer, followed by
our actual possession and occupation for half a century ?

'• You observe that 'Lord Malmesbury and M. Turgot put forward, as
a reason for entering into the proposed compact, the attacks which had
been made on the Island of Cuba by lawless bands of adventurers from
the United States, and with the avowed design of taking possession of
that island,' and to this reason you add, 'Mr. Everett replies in these
terms : ' The President is convinced that the conclusion of such a treaty,
instead of putting a stop to these lawless proceedings, would give a new
and powerful impulse to them,' and this argument you call 'not onlj-
unfounded but disquieting.'

"After acknowledging, rather coldly, I think, the conduct of the late
President in disavowing and discouraging the lawless enterprises re-
ferred to, you reproachfully pronounce my remark just cited 'a melan-
choly avowal for the chief of a free state'; and you seem to intimate,
without expressly saying so, that it implies, on the part of the people
of the United States, an insensibility 'to the value of the eternal laws
of right and wrong, of peace and friendshij), and of duty to our neigh-
bor, which ought to guide every Christian nation.' You also take oc-
casion, in reference to the same remark, to impress upon the people of
the United States 'the utility of those rules for the observance of inter-
national relations, which for centuries have been known to Europe by
the name of the law of nations. Among the commentators on that
law (you continue) some of the most distinguished American citizens
have earned an enviable reputation, and it is difficult to suppose the
United States would set the example of abrogating its most sacred
provisions.'

"I suppose no one in Europe or America will think the intended force
of this rebuke mitigated by the diplomatic reservation contained in the
last two lines. Let us then inquire for a moment if it is well deserved.

574

CHAP. III. J "accretion, NOT COLONIZATION." [§ 72.

"The expeditions to which you iilhulo as calculated to excite the
'reprobation of every civilized state,' were discountenanced by the
President in every constitutional and legal way. The utmost vi;,Mlauce
was at all times employed, but, unhappily for the adventurers them-
selves, without efl'ect. In this there is matter neither for wonder nor
reproach. The territory of the United States is but little less tban the
whole of Europe; while their population is not quite ecpial to that of
the United Kingdom, and their standing military force small and scat-
tered over an immensely extensive frontier. Our Government, like
that of England, is one of law; and there is a great similarity between
the laws of the two countries which prohibit military expeditions
against the jiossessions of friendly powers. In fact, your foreign en-
listment act of 1819 was admitted by i\Ir. Canning to have been
founded in i)art on our neutrality law of the preceding year. Of the
two, 1 believe bur laws are the more stringent; but it is somewhat
difficult to enforce them in both countries.

•'These expeditions, got up in the United States by a Sj)anish general,
and sui)posed to indicate a lawless disposition on the part of the Ameri-
can people, comprised a very small number of persons, some of whom
were foreigners, enjoying the same freedom of action in the United
States that refugees from every part of the continent enjoy in England.
The same rei)roach which is cast upon us for these expeditions is at
this moment cast upon England by the continental i)owers. Events
which have occurred in London since your dispatch was written strik-
ingly illustrate the difficulty and the risk, under constitutional Govern-
ments, of preventing abuses of that hos])itality which it is the privilege
and boast of such Governments to extend to all who seek it.

"There is, no doubt, widely jirevalent in this country, a feeling
that the people of Cuba are justly disaliected to the Government of
Spain. A recent impartial French traveler, M. Ami)ere, coLfirms this
impression. All the ordinary political rights enjoyed in free countries
are denied to the people of that island. The Government is, in princi-
ple, the worst form of despotism, namely, absolute authority delegated
to a military viceroy, and supported by an army from abroad. 1 si)eak
of the nature of the Government, and not of the individuals by whom
it is administered, for I have formed a very favorable opinion of the
personal character of the present captain-general, as of one or two of
his predecessors. Of the bad faith and the utter <lisregard of treaties
with which this bad government is administered, your committees on
the slave-trade have spoken plainly enough at the late session of Par-
liament, Such being the state of things in Cuba, it does not seem to
me very extraordinary or reproachful that, throughout the United
States, a handful of misguided young men should be found, ready to
join a party of foreigners, headed by a Si)anisli (General, who was able
to persuade them, not as you view it, 'by armed invasion to excite the
obedient to revolt and the tranquil to disturbance,' but, as they were
led to believe, to aid an oj^pressed people in their struggle for freedom.
There is no reason to doubt that there are, at this moment, as many
persons, foreigners as well as natives, in England, who entertain these
feelings and opinions as in the United States; and if Great Britain
lay at a distance of one hundred and ten miles from Cuba, instead of
thirty-five hundred, you might not, with all your iei)res.sive force, find
it easy to prevent a small steamer, disguised as a trading vessel, from
slipping off from an outport in the night on an unlawful enteriirise.
The expedition of General Torrijos, in 1831, as far as illegality is cou-

575

§ 72.] INTERVENTION. [CHAP. III.

cerued, is the parallel of that of General Lopez. It was fitted out in
the Thames, without inteivnption till the last moment, and though it
then fell under the grasp of tLie i)oliee, its members succeeded in escap-
ing to Sj)ain, where, for sDuie time, they found shelter at Gibraltar. It
is declared, in the last number of the Quarterly Review, to be 'notori-
ous that associations have been formed in London for the subversion
of dynasties witli which England is at peace; that arms have been pur-
chased and loans ])roposed ;. that "central committees" issue orders
from England, and that Slessrs. Mazzini and Kossuth have established
and ])resideover boards of regency for the Koman States and Hungary,
and for the i)romotion of revolution in ever^' part of the world.' I have
before me a list, purporting to be taken from a Prussian police gazette,
of fifteen associations of continental refugees organized in London, and
now in action, for the above-mentioned purposes.

"When these things are considered, the fact that, in the course of
four or five years, two inconsiderable and abortive efiorts have been
made from the United States, though deeply to be lamented and sternly
to be condemned, as a violation of mnnicii)al and international law, does
not appear to me so 'shocking' as it seems to be thought by you. It
does not, in my judgment, furnish any ground for the reproaches it has
drawn upon the Government and ])eople of the United States. Nor does
the remark in my letter of the 1st December, that a disposition to engage
in such enterprises would be increased rather than diminished by our
accession to the jiroposed convention, strike me as ' a melancholy avowal,'
as you pronounce it, on the part of the President. Yon ibrget the class
from which such adventurers are in all countries enlisted — the young, the
reckless, the misinformed. What oth( r effect could be expected to be
produced on this part of the pojjulation by being told that their own
Government, in disregard of the most obvious public interests as well
as of the most cherished historical traditions, had entered into a com-
pact with two foreign powers to guarantee the perpetuity of the system
under which Cuba now suffers! Does not Lord Howden, the English
minister at Madrid, make a very similar avowal in his letter of the oOth
May last, addressed to the Spanish minister of foreign affairs, when he
says, 'I cannot conclude without expressing my deep regret, that the
course of Spain is such as to produce a general alienation in the oi)in-
ion of the English public, out of which will most infallibly result a state
of feeling ivhich no Government can control or oppose f

"The idea that a convention like that i)roposed was a measure nat-
urally called for, in consequence of these lawless expeditions, seems to
rest upon an entire misconception of the present state of the law in the
United States, and of our treaty relations with Spain. Our treaties
with that Government and the laws of the United States forbid all
such enterprises. The tripartite convention would have added nothing
to their unlawfulness. If we had been desirous of multiplying objec-
tions, we might well have complained that the acts of a very small
number of rash young men, citizens and foreigners, should be put for-
ward by two of the leading i)Owers of Europe, as the main reason why
we should be expected to enter into a sti'ange compact with those powers,
binding ourselves never to make a lawful aiul honorable acquisition of
Cuba. There is no logical connection between the ideas, and there is
something bordering upon the offensive in their association.

"Consider, too, the recent antecedents of the powers that invite us
to disable ourselves to the end of time from the acquisition in any way
of liiis natural appendage to our continent. France, within the ])ast

57<>

CHAP. III.] "accretion, NOT COLONIZATION." [§ 72.

ceutury, to say nothing of tho acquisition of Louisiana, bas wrested a
moiety of Europe from its native sovereigns; lias ])ossesse(l herself, by
force of arms, and at the time gieatly to the dseontent of Hnghind, of
six hundred miles of the northern const of Africa, with an indefinite
extension into the iiiterior; and has ai>i)ropriated to hcisclf one of the
most im])orrant insular groups ol" the J'acihc. England, not to mention
her other numerous recent aequisitions in every part of the globe, has,
even since your dispatch of the IGth February was written, annexed
half of the Burman Emjjire to her overgrown Indian possessions, on
grounds — if the statements in Mr. Cobden's ])amphlet are to be relied
on — comi)ared with which the reasons assigned by llussia for invading
Turkey are respectable.

"The United States do not require to be advised of 'the utility of
those rules for the observance of international relations which for cen-
turies have been known to Europe by the name of the law of nations.'
They are known and obe.'.ed by us under the same venerable name.
Certain circumstances in our history have caused them to be studied
more generally and more anxiously here than in Euro])e. From the
breaking out of the wars of the French revolution to the year 1812,
the United States knew the law of nations only as the victims of its
systematic violation by the great maritime powers of Euro])e. For
these violation on the part of England, i)rior to 1794, indemnification
was made under the seventh article of Jay's treaty. For similar injur-
ies on the pait of France, we were comjielled to accept an illusory set-
off uiuler the convention of 1800. A lew years only ela])sed before a
new warfare upon our neutral rights was commenced by the two powers.
One hundred millions at least of American |)roperty were swe])t from
the seas, under British orders in council, and the French, Berlin, and
Milan decrees. These orders and decrees were at the time reciprocally
declared to be in contravention of the law of nations by the two powers
themselves, each speaking of the measures of the other party. In 1831,
after the generation of the original sufferers had sunk under their ruined
fortunes to the grave, France acknowledged her decrees to have been
of that character by a late and pat tial measure of indemnification. For
our enormous losses under the British orders in council, we not only
never leceived indemnifi<'-ation, but the sacrifices and sufferings of war
were added to these spoliations on our commerce and invasion of our
neutral rights which led to its declaration. Those orders were at the
time regarded by the Lansdownes, the Barings, the Broughams, and
the other enlightened statesmen of the school to which you behmg as
a violation of right and justice as well as sound i)olicy; and within a
very few years the ])resent distinguished lord chief justi(X', jilaced by
yourself at the head ot the tribunals of England, has declared that
'<the orders in council were grievously unjust to neutrals, and it is now
gener all II all Diced that they were contrary to the law of nations and our
own municijHil law!^

"That I call, my lord, to borrow your expression, 'a melancholy
avowal' for the chief of the jurisprudence of a great Empire, though
highly creditable for the candor with which it is nuide. Acts of its
sovereign authority, countenanced by its Parliament, rigidly executed
by its tleets on every sea, enforced in the eourts of admiralty by a magis-
trate whose learning and eloquen(!e are among the modem glories of
England, persisted in till the lawful eommerce of a neutral and kindred
nation was annihilated, and pronounced by the highest legal authoritj

S. Mis. 1G2— VOL. I 37 ^'^'^

§ 72.] ' INTERVENTION. [CIIAV. III.

<)f the pivsc'iit (l;iy coiitiary, not merely to the law of natious, but your
own municipal hiw !

"Under these circumstances, the Government and i)eo])le of the
United States, who have never committed or sanctioned a violation of
the law of nations ajjainst any other ]>ower, may well think it out of
])lace that they should be instructed by an English minister in 'the
utility of those rules which for centuries have been known to Europe
by the name of the law of nations.'

"There are several other i)oints in your dispatch, some of great pub-
lic moment, which, if I were still in office, I should discuss on this oc-
casion. I have, however, deemed it proper, at ])resent, to confine myself
to such remarks as seemed necessary to vindicate my letter of the 1st
December from your strictures, leaving the new asj)ects of the case
which your dispatch presents, especially in its opening and closing
paragraphs, to those whose official duty it is to consider them.

"You will not, I hope, misaj^prehend the spirit in which this letter
is written. As an American citizen, I do not covet the acquisition of
Cuba, either peaceably or by force of arms. When I cast my thoughts
back upon our brief history as a nation, I certainly am not led to think
that the United States have reached the final limits of their growth,
or, what comes to very much the same thing, that rejireseutative gov-
ernment, religious equality, the trial by jury, the freedom of the press,
and the other great attributes of our Anglo-Norman civilization are
never to gain a further extension in this hemisphere. I regard the in-
<iuiry under what political organization this extension is to take j)lace,
as a vain attempt to i^enetrate the inscrutable mysteries of the future.
It will, if we are wise, be under the guidance of our example. I hope
it will be in virtue of the peaceful arts by which well-governed states
extend themselves over unsettled or ])artially settled continents. My
voice was heard, at the first opportunity, in the Senate of the United
States, in favor of developing the almost boundless resources of the
territory already in our possession, rather than seeking to enlarge it
by aggressive wars. Still 1 cannot think it reasonable — hardly respect-
ful — on the part of England and France, while they are daily extend-
ing themselves on every shore and in every sea, and pushing their do-
minions, by new conquests, to the uttermost ends of the earth, to call
upon the Uuited States to bind themselves, by a perpetual compact,
never, under any circumstances, to admit into the Union an island
which lies at their doors, and commands the entrance into the interior
of their continent." ^

Mr. Everett to Lord John Russell, Boston, Sept. 17, 1853, Pamph. Ed. See re-
view by Mr. Trescot, iu 9 South. Quar. Rev., N. S., Apr., 1854, 429.

On July 2, 186(5, the chairman of the Committee on Foreign Affairs
in the House of Eepresentatives reported a bill to the eflect, that when
the De|)artment of State should be officially informed that Great Brit-
ain and the several British provinces in Canada accepted the proposi-
tion of annexation, the President shall declare by i)roclamatiou that
Nova Scotia, New Brunswick, Lower Canada, Upper Canada, and the
territories of Selkirk, of Sasketchewan, an<l of Columbia should be
admitted into tiie United States as States and Teiritories. (Anier. Ann.
Encyclop., 18(j(), 78.) This resolution was not acted on, but on Maich 27,
18C7, a resolution from the Committee on Foreign Affairs was i)assed
in the House without opposition, to the effect that the people of the

578

CHAP. III.] ''accretion, NOT COLONIZATION." [§ 72.

United States regarded with extreme solicitude the confederation i)ro-
posed on the northern frontier without tlie assent of the i)eoi)h' of the
provinces to be confederated, such a measure being- likely to increase
the embarrassment already existing between Great Britain and the
United States.

Aiiier. Anu. Encyclop., 1807, 27;"). 2 Lawrence Com. siir droit int., ^13.

It is not the policy of the United States to undertake in Africa the
management of movements within the particular range of private enter-
prise.

Mr. Fish, Sec. of State, to Sir E. Thornton, Apr. 8, 1873. MSS. Notes, Gr. Brit.

"The policy of this Government, as declared on many occasions in
the past, has tended toward avoidance of possessions disconnected
from the main continent. Had the tendency of the United States been
to extend territorial dominion beyond intervening seas, opportunities
have not been wanting to effect such a purpose, whether on the coast
of Africa, in the West Indies, or in the South Pacific. No such oppor-
tunity has been hitherto embraced, and but little hope could be offered
that Congress, which must in the ultimate resort be brought to decide
the question of such transmarine jurisdiction, would favorably regard
such an acquisition as His Excellency proposes. At any rate, in its
political aspect merely, this Government is unprepared to accept the
proposition without subjection to such wishes as Congress and the
people of the United States through Congress may see fit to express."

Mr. Frellnghnysen, Sec. of State, to Mr. Langston, June 20, 1883. MSS. Inst.,
Hayti.

"A conviction that a fixed policy, dating back to the origin of our
constitutional Government, was considered to make it inexpedient to
attempt territorial aggrandizement which would require maintenance
by a naval force in excess of any yet provided for our national uses,
has led this Government to decline territorial acquisitions. Even as
simple coaling stations, such territorial acquisitions would involve
responsibility beyond their utility. The United States have never
deemed it needful to their national life to maintain impregnable for-
tresses along the world's highways of commerce. To considerations
such as these prevailing in Congress the failure of the Samana lease
and the St. Thomas purchase were doubtless due. During the years
that have since elai)sed there has been no evidence of a change in the
views of the national legislature which would warrant the President in
setting on foot new projects of the same character."

Mr. Fri'linghnysen, Sec. of State, to Mr. Langston, Feb. I, 1884. MSS. In8t.,
Hayti.

The proposed annexation of San Domingo is discussed, .«i/pra, §6Ij
that of St. Thomas, supra,, §6 la.

579

§ 72.] INTERVENTION. [CHAP. III.

"The policy of the United States, declared and pursued for more
than a century, discountenances and in practice forbids distant colonial
acquisitions. Our action in the past touching the acquisition of terri-
tory by purchase and cession, and our recorded disinclination to avail
ourselves of voluntary proffers made by other i)Owers to place territo-
ries under the sov'ereiguty or protection of the United States, are mat-
ters of historical prominence."

Mr. Bayard, Sec. of State, to Mr. Peudletou, Sept. 7, 1885. MSS. Inst., Germ.

" Maintaining, as 1 do, the tenets of a line of precedents from Wash-
ington's day, which proscribe entangling alliances with foreign states,
I do not favor a policy of acquisition of new and distant territory, or
the incorporation of remote interests with our own."
President Cleveland, First Annual Jlessage, 1885.
680

CHAPTER IV.

DIPLOMATIC AGENTS.

I. Executive the source of diplomatic authority, $ 78.
II. Foreign ministers to recognize the Secretary of State as the
sole organ of the Executive, $ 79.

III. Continuity of forkign relations not broken by party changes,

$ 80.

IV. Executive discretion determines the withdrawal or rkmoval of

missions and ministers, $ 81.
V. NoN- acceptable minister may be refused, § 82.
VI. Not usual to ask as to acceptability in advance, $ 82a.
VII. Conditions derogatory to the accrediting Government cannot bk

IMPOSED, $ dii.

VIII. Minister misconducting himself may be sent back, $ 84. •
IX. Mode of presentation and taking leave, $ 65.
X. Incumbent continues until arrival of successor, $ 86.

XI. How FAR DOMESTIC CHANGE OF GOVERNMENT OPERATES TO RECALL,

$ 87.
XII. Diplomatic grades, § 68.

XIII. Citizens of country of reception nc)T acceptable, $ 88o.

XIV. Diplomatic correspondence confidential, except by order of De-

partment, § 89.

(1) Confined to official business, ^ 89a.

(2) Usually in -writing, § 89b.

XV. Diplomatic agents to act under instructions, $ 90.
XVI. Communications from foreigners only to be received through

diplomatic representatives, $91.
XVII. Diplomatic agents protected from process.

(1) Who are so privileged, $ 92.

(2) Illegality of process against, $ 93.

(3) Exemption from criminal prosecution, $ 93a.

(4) What attack on a minister is an international ofiFense, $ 936.
XVIII. And from personal indignity, § 94.

XIX. And from taxes and imposts, $ 95.

XX. Property protected, ^ 96.

XXI. Free transit and communication with, secured, ^ 97.

XXII. Privileged from testifying, $ 98.

XXIII. Cannot become business agents, $ 99.

XXIV. Nor represent foreign Governments, ft 100.
XXV. Should reside at capital, ft 101..

XXVI. Joint action with other diplomatic agents unadvisable, } 102.
XXVII. Duties as to archives, $ 103.
XXVIII. Eight of protection and asylum, ft 104.
XXIX. May extend protection to citizens of friendly countries, $ 105.
XXX. Avoidance of political interference enjoined, $ 106.

581

§ 78.] DIPLOMATIC AGENTS. [CHAP. IV.

XXXI. COUUTKSY, FAIRNESS, AND SOCIAL CONFORMITY EXPECTED.

(I) OtBcial intercourse, § 107.
{1} Social intercourse, $ 107a.
(."i) Court dress, $ 1076.
(4) Expenses, ^ 107c.

XXXII. Contingent fund and secret-service money, ^ 108.

XXXIII. Self-constituted missions illegal, ^ 109.

XXXIV. Presents not allowaule, ^ 110.

I. EXECUTIVE, THE SOURCE OF DIPLOMATIC AUTROEITY.

§ 78.

"A motion bad been made in the Senate on the 5tb of August, 1789,
'that it is the opinion of the Senate that their advice and consent to
the appointment of officers should be given in the presence of the
President.' This motion was postponed till the next day, when it was
ordered 'that Mr. Izard, Mr. King, and Mr. Carroll be a committee to
wait on the President of the United States, and confer with him on the
mode of communication proper to be pursued between him and the
Senate in the formation of treaties and making appointments to offices.'
The committee accordingly waited on the President, and had the con-
ference mentioned in the above letter. It does not appear, however,
that the plan of communicating nominations orally was adoj^ted in any
instance, or that the President was ever present when they were con-
sidered by the Senate. (See appendix No. V.)

" In regard to treaties, a practice was at first begun which was not
pursued. On the 21st of August, 1780, the following message was sent
to the Senate, 'The President of the United States will meet the Sen-
ate in the Senate Chamber at half past 11 o'clock to-morrow, to advise
with them on the terms of the treaty to be negotiated with the south-
ern Indians.' He accordingly took his seat in the Senate, attended by
General Knox, the Secretary of War, for two days in succession, when
the outlines of a treaty proposed by the Secretary were discussed. But
this practice, being found inconvenient and subject to various objections,
particularly in regard to treaties with foreign powers, was soon discon-
tinued. (Story's Commentaries, vol. iii, p. 371.)"

10 Washington's Writings, 25. Note by Sparks.

'' The Constitution having declared that the President shall nominate
and, by and with the advice and consent of the Senate, shall appoint
embassadors, other public ministers, and consuls, the President desired
my opinion whether the Senate has a right to negative the grade he may
think it expedient to use in a foreign mission, as well as the person to be
appointed.

" I think the Senate has no right to negative the grade.^''

Opinion of Mr. Jefterson, Apr. 24, 1790. 7 Jeff. Works, 4G5.

President Washington's message to the Senate of February 18, 1791,
relative to the institution of a mission to Portugal, and nominating Mr.
Humphreys thereto, will be found in 1 Am. State Papers, (For. Kel.) 127.

President John Adams's actioi;, in sending, on February 18, 1798,
without consulting his Cabinet, the nomination of Mr. William Vans
Murray to the Senate, is told in 1 Schouler's Historv of the United
States, 430.

582

CHAP. IV.] AUTHORITY COMES FK'OM KXKCUTIVK. [§ 7H.

On Maicli 24, 1<S18, Avlien tlu' <li|)l()ii);it ic nppiopiialioii bill caiiK- up
before the lloi'.se of Iiepi-escnratix cs. Mr. Clay took exception to the
insertion in it of thirty thousand dolhirs tor the payment of certain
si)ecial conjuiissioners sent by the Piesident on a mission of nr.i^ency
to the South American states. lie insisted that if these commissioners
were <lii)lomatic aii<'nts, their nomination siioidd have been sent to the
Senate and by the Senate contirmed. Tiie ol)jcciion, l.owever, was met
by plaeino- the ap])ropriation under tlie head of incidental ex])eu8es.
(See as to other details of this mission, stipra, § 47.)

lu President Monroe's Cabinet, on January 2, 1820, the quesiiou of
sending ministers to the new South American states coming- u]», Mr, J. Q.
Adams argued that "it is not consistent with our national dignity to be
the first in sending a minister to a new power. It had not been done by
any European power to ourselves." But receiving ministers " was, by
our Constitution, an act of the Executive's authority. Ceneral Wash-
ington had exercised it in recognizing the Erencdi Eepublic by the
reception of Mr. Genest [Genet]. Mr. Madison had exeicised it by
declining several years to receive, and by tinally receiving, Mr. Ouis."

4 J. Q. Adams' Mem., 206.

Concurrence by the Executive alone in the establishment of permanent
international courts for the adjudication of questions arising out of the
slave-trade, is not compatible with the limitations of the Constitution
of the United States.

Mr. Adams, Sec. of State, to Mr. Stratford Canuing, Dec. 30, 1820. MSS.
Notes, For. Leg.

"It appears that the Senate have been discussing the precedents
relating to the appointment of public ministers. One question is
whether a public minister be an officer in the strict constitutional sense.
If he is, the appointment of him must be authorized by law, not by the
President and Senate. If, on the other hand, the appointn)ent creates the
office, the office must expire with the appointment, as an office created
by law exi>ires with the law; and there can be no difference between
courts to which a public minister has been sent, and those to which one
was sent for the first time. According to my recollection this subject
was on some occasions carefully searched into, and it was found that
the practice of the Government had from the beginning been regulated
by the idea that the places or offices of public ministers and consuls
existed under the law and usages of nations, and were always open to
receive appointments as they might be made under competent authori-
ties."

Mr. Madison to Mr. Monroe, President, May 6, 1822. MSS. Monroe Pap., Dept.
of State. 3 Madison's Writings, 268.

The question of the right of the Senate to require, in reference to
diplomatic nominations, documents which the Executive holds it incon-
sistent with public policy to disclose, was presented in various shapes
in the proceedings of the Senate in 182G in reference to the Panama
mission. (See Sen. Doc. No. 423, 19th Cong., 1st sess.; 5 Am. State
Pai . (For. Eel.), 834-870.) The same question was acted on on the first
session ofthe Forty ninth Congress, (188G) President Cleveland declining
to acknowledge the Senate's right to require such production.

As to duties and need of U. S. ministers to foreign countries, see 7 John Adams's
Worlis, 208, 257, 263, 317 ; 8 ihid., 37, 96, 150, 381, 499 ; 9 ibid., 513, 521.

583

§ 78.] DIPLOMATIC AGENTS. [CHAP. IV.

A re])ort b.v Mr. Patterson, of New IlaniiKsliire, on the character of
our foreiii'n servi(;e, made July li, 1808, is si^'t'ii in Senate liep. Com.
No. 154, 4otli Con J?., 2d sess.

That representatives of this Government mnst be citizens of the United
States, see infra, § 113.

The proceedings connected with the appointment, in 1847, of Mr. Trist,
as contidential agent to Mexico, are given, infra, § 154.

In October, 1861, Mr. Seward, with the approval of the President and
the Cabinet, determined to send to Europe, as a confidential but secret
mission, for the i)nrpose of acting, so far as possible, on public senti-
ment in respect to the then civil war, certain eminent citizens who, how-
ever, were to receive no compensation beyond payment of their ex-
penses, and were not to deal distinctively with any foreign Govern-
ment, nor to assume in any way diplomatic functions. The gehtlemeu
selected for the puri)ose were Archbishop Hughes, Bishop McIlvaine,Mr.
Everett, Mr. Winthrop, and Mr. J. P. Kennedy. The two first named pro-
ceeded at once on the mission. The otliers were ready to follow, if this
was thought necessary by the Government, asking for a few days' delay
for ])reparation. In the mean time, more favorable advices from Eng-
land having arrived, they were relieved by Mr. Seward from the duty.
Archbishop Hughes and Bishop Mcllvaine, however, entered on the
service, though no letters to or from them are on tile in the State De-
partment, nor is any record of their appointment there to be found.

See Thuriow Weed's Autobiography, 634 ; and fuller statement as to details,
in 4 Wiuthrop's Addresses, &,e., 500.

The Seci'etary of State has no power to appoint a commission to de-
termine how much money a foreign prince shall pay to counsel in the
United States for professioual services.

6 Op., 386, Gushing, 1854.

The President, under the Constitution, has power to appoint diplo-
matic agents of any rank, at any place, and at any time, subject to the
constitutional limitations in respect to the Senate. The authority to
make such appointments is not derived from, and cannot be limited by,
any act of Congress, except in so far as appropriations of money are
required to provide for the expenses of this branch of the public service*
During the early administrations of the Government, the appropriations
made for the expenses of foreign intercourse vrere to be expended in
the discretion of the President, and from this general fund ministers
whom the President saw fit to name were iiaid. Congress, in any view,
cannot require that the President shall make removals or reappoint-
ments or new appointments of public ministers at a particular time,
nor that he siiall aj)point or maintain ministers of a prescribed rank, at
particular courts. It was therefore held that where the act of 1855 (10
Stat., 619) declared that from and after the end of the present fiscal year
the President shall appoint envoys, &c., this was not to be construed
to mean that the President was required to make any such appointments,
584

CHAP. IV.] SECRETARY OF STATE THE ORGAN. [§ 79.

but only to determine what .slionld be the salaries of tbe oflBcers iu case
they have been or shall be appointed.

7 Op. 18G (CnKbiii<,0, 18r)r).

As to power of appoiutniciit in \>hu-v of Husiit'iided <lipli)in:ific a^cnt.s, under
tenure of office act, see Revised Statutes, $§ llGl ff.

Spanish viceroj^s, governors, and captains-general have geneially
been invested with the^'ws Ugatlonis.

7 Op., 551, Cushlug, 1855,

II. FOREIGN MINISTERS TO RECOGNIZE THE SECRETARY OF STATE AS
SOLE ORGAN OF THE EXECUTIVE.

§ 79.

" There is no maxim more clearly settled in all courts, and in all ne-
gotiations between nations, than that sovereign should always speak to
sovereign and minister to n)inister. I am not at all surprised, there-
fore, although 1 am much mortilied, at having my memorials to their
High Mightinesses, and to His Most Serene Highness, returned to me,
with the letter inclosed from Mr. Fagel. 1 should have had a letter of
recall, signed by the President of Congress, by their order, and ad-
dressed to their High Mightinesses. There is a similar irregularity in
my recall from the British court; for, although my commission is lim-
ited to three years, yet my letter of credence to His Ma jest j has no
limits at all. \i the omission of a letter from Congress to the King,
upon this occasion, should not be taken as an oflense, it will not be be-
cause it is not observed, but from motives too humiliating to Congress,
as well as their minister here, to be explained."

Mr. Adams to Mr. Jay, Feb. 16, 1788. 8 John Adams' Works, 47?*.

"Minutes of a conversation between Mr. Jefferson, Secretary of
State, and M. Genet :

"July 10, 1793.

* * * " He asked if they (Congress) were not the sovereign. 1 told
him no, they were sovereign in making laws only, the Executive was
sovereign in executing them, and the judiciary in construing them
where they related to their department. ' But,' said he, ' at least Con-
gress are bound to see that the treaties are observed.' I told him no;
there were very few cases, indeed, arising out of treaties which they
could take notice of; that the President is to see that treaties are ob-
served. ' If he decides against the treaty, to whom is a nation to ap-
peal?' I told him the Constitution had made the Presi«lent the last
appeal. He made me a bow, and said that indeed he would not make
me his compliments on such a Constitution, expressed the utmost aston-
ishment at it, and seemed never before to liave had such an idea.

" He was now come into perfect good humor and coolness, in which
state he may with the greatest freedom be spoken with. I observed to
him the imi)ropriety of his conduct in persevering in measures contrary
to the will of the Government, and that too within its limits, wherein
unquestionably they had a right to be obeyed. ' But,' said he, ' 1 have
a right to expound the treaty on our side.' ' Certainly,' said I, 'each
party has an equal right to expound their treaties. You, as the agent
of your nation, have a right to bring forward your exposition, to sup-

685

^ 79.J DIPLOMATIC AGENTS. [CHAP. IV.

port it by reasons, to insist on it, to be answered with the reasons for
our exposition where it is contrary ; bnt when, after hearinj? and con-
sidering yonr reasons, the highest authority in the nation has decided,
it is your duty to say you think the decision wrong, tliat you cannot
take upon yourself to admit it, and will represent it to your Govern-
ment to do* as they think proper ; but, in the mean time, you ought to
acquiesce in it, and to do nothing within our limits contrary to it.'"

10 Washington's Writings, 5o7.

"He (the President) being the only channel of communication be-
tween the country and foreign nations, it is from him alone that foreign
nations or their agents are to learn what is or has been the will of the
nation, and whatever he communicates as such they have a right and
are bound to consider as the expression of the nation ; and no foreign
nation can be allowed to question it, (nor) to interpose between him
and any branch of goverument, under the pretense of either's trans-
gressing their functions, nor to make himself the nmpire and final judge
between them."

Mr. Jefferson, Sec. of State, to Mr. Genet, Nov. 22, 1793; 1 Waite's St. Pap.,
198; 1 Am. St. Pap. (For. Eel.), 184.

"A foreign minister has a right to remonstrate with the executive to
whom he is accredited, upon any of those measures afiecting his coun-
try. But it will ever be denied as a right of a foreign minister, that he
should endeavor, by an address to the people, oral or written, to fore-
stall a depending measure, or to defeat one which has been decided."
Mr. Eandolph, Sec. of State, to Mr. Fauchet, June 13, 1795. MSS. Notes, For,
Leg.

That it is an impropriety for foreign ministers to publish criticisms
on the Government to which they are accredited, see 1 J. Q. Adams
Memoirs, 410.

A foreign minister has no right to take official notice of informal
remarks made by the President at one of his " drawing-rooms."

" What right had Mr. Onis to speak upon this matter to the Presi-
dent at the drawing-room at all ? He was treating with me. I bad
sent him a copy of my full powers, and received the copy of his. The
Secretary of State was the officer with whom the negotiation was to
be conducted, and all applications to the President by Mr. Onis con-
cerning it were improper."

4 J. Q. Adams Mem., 269.

Even though the Globe, as published during the administration of
President Jackson, should be regarded as a government paper, the Gov-
ernment " is and can be from the nature of our institutions only answer-
able for official articles ; on all the rest the Globe is as independent of the
Executive as any other gazette." Hence, the Government, as such,
cannot be properly called on by Russia to explain the insertion of ar-
ticles in the Globe injurious to Russia in relation to Poland, or the pub-

586

CHAP. IV.] SECRETARY OF STATE THE ORGAN. [v^ 7M.

licatioii of wiiaf liussia may consider iuaecuiatc and unjust reports from
France or Eni;Iand of Russian affairs.

Mr. Liviii<;ston, Sec. of Stato, to Mr. Biicliaiiiiii, .Jan. 2, 1H33. MS8. Inst.,
Russia. See also 1 Curtis' Buchanan, 175.

"Tlie first rejection produced by Mr. Serurier's note i.s that it liriuj^'s*
into discussion the propriety of a message of the President to Conj,^ress,
for the contents of which, until the recommendations it contains are
adopted by Congress, the United States are not resi)onsible to for('i<;n
Governments. If, in the i)erfornmnce of his constitutional (hity, the
President had recommended a declaration of war apiinst France, it is
to be presumed that France would not have madb war upon the United
States, until Congress, to whom exclusively belongs the ])()wer, had
decided to declare war against her, and however prudence would have
required a preparation, or even action, on her part, the French Govern-
ment would scarcely have expected to make it a subject of diplomatic
discussion. As one of its branches, the Chief Magistrate, in his^ mes-
sages, commits the Government to foreign nations no more than the
two houses of Congress can, by their separate action, and it would be
a most extraordinary' movement of the foreign power to discuss the
resolutions of either house of Congress, or of both, if passed by less
than two-thirds, and not ai)proved by the President, as if those resolu-
tions were causes of complaint against the United States, to be sub-
jects of discussion with the Executive. The President corresponds with
foreign Governments, through their diplomatic agents, as the organ of
the nation. As such he speaks for the nation. In his messages to
Congress he speaks only for the Executive to the legislature. He rec-
ommends, and his recommendations are i>owerless, unless followed by
legislative action. No discussion of them can be permitted. All allu-
sions to them, made with a design to mark an anticipated or actual
difference of opinion between the Executive and legislature, are indel-
icate in themselves, and if made to prejudice public opinion, will imme-
diately recoil upon those who are so indiscreet as to indulge them. If
they contain anything injurious to foreign nations, the means of self-
justification are in their own power without interposing between the
different branches of this Government — an interposition wliich can
never be made, even by those who do not comprehend the true charac-
ter of the Government and the people of the United States, without
forfeiting the respect of both."

Mr. Forsytii, Sec. of State, to Mr. Livingston, Mar. 5, 1835. MSS. Inst., France.
See infra, § :nH.

When the French Government, in 1835, made the payment of the
French sjioliation indemnity depend upon an exi)lanation being offered
of President Jackson's message of December, 1S34, reflecting on the
course of France (see infra, § 318), Mr. Edward Livingston, then min-

587

§ 71).] DIPLOMATIC AGENTS. [CHAP. IV.

istor at Paris, addiossed to the Due de Broglie, French minister for
forei^^n alfairs, ;i note in which is the f"(dIowin<.j :

"Tlie President, as the chief executive power, must have a free and
entirely unfettered communication with the co-ordinate powers of the
Government. As the or^an of intercourse with other nations, he is the
only source from which a knowledge of our relations can be conveyed
to the legislative branches. It results fiom this that the utmost free-
dom from all restraint, in the details into which he is obliged to enter
of international concerns and of the measures in relation to them, is
essential to the proper performance of this iuiportant part of his func-
tions. * * * Were any foreign i)owers i)ermitted to scan the com-
munications of the Executive, their complaints, whether real or alfected,
would involve the country in continual controversies; for, the right
being acknowledged, it would be a duty to exercise it by demanding a
disavowal of every phrase they might deem ottensive, and an explana-
tion of eveiy word to w^hich an improper interpretation could be given.
The i)rinciple, theiefore, has been adopted, that no foreign power has
a right to ask for explanations of anything that the President, in the
exercise of his functions, thinks proper to communicate to Congress, or
of any course he may advise them to ])urKue. This rule is not applicable
to thfe Government of the United States alone, but, in common with
it, to all those in which the constitutional jjowers are distributed into
different branches. No such nation, desirous of avoiding foieign in-
fluence or foreign interference in its councils — no such nation, possess-
ing a due sense of its dignity and independence, can long submit to the
consequences of this interference. * * * If the principle is correct,
ev^ery comuiuuication which the President makes, in relation to our for-
eign affairs, either to the Congress or to the public, ought in prudence
to be previously submitted to those ministers, in order to avoid dis-
putes and troublesome and humiliating explanations."

Hunt's Life of Liviugston, 401,402.

Communications of the President to Congress and the debates of Con-
gress are domestic matters, concerning which this Department will not
entertain the criticisms or answer the questions of foreign sovereigns.

Mr. Bachanau, Sec. of State, to Mr. Rosa, Feb. 15, 1849. MSS. Notes, Mex.

A foreign minister, accredited to the United States, has no right to
"ask explanations from the President concerning the debates or proceed-
ings of Congress, or any message which he may transmit to either house
in the exercise of his constitutional power and duty. In a note toM. de
la Rosa, minister of Mexico, from Mr. Buchanan, Secretary of State,
February 15, 1849, it is said: " So far as regards the debates or i)ro-
ceedings of Congress, this is the first occasion on which it has become
necessary to address the representative of any foreign Government.
Not so in relation to the messages C'f the President to Congress. Mr.
Castillo, one of your predecessors, in a note of the 11th of December,
1835, to Mr. Forsyth, the Secretary of State, called upon him for an ex-
planation of the jneaniug of a paragraph, relating to Mexico, contained
in President Jackson's annual messajic to Congress, of December, 1835.
Mr. Forsyth, in his answer of IGth December, 1835, told Mr. Castillo
that 'remarks made by the President in a message to Congress are not
deemed a proper subject upon which to enter into explanation with the
representative of a foreign Government.' Mr. Livingston, then our min-
ister to France, on 13tli of January, 1835, informed the French minister

588

CHAP. IV.] SECRETARY OF STATE THE ORGAN. [§ 71).

of foreign affairs that in the message of Presichiit .lackson to Congress
of the i)revioiis December, 'there was nothing iiddrcsstMl to the French
nation' : and he likened it very i)ro])erly to a i)r<)cec(liiig well known in
French hvw — a family eoiiiM-il, in which their concerns and interests are
discussed, bat of which, in our case, the del)ales were necessaiily pub-
lic." (Annual message of the President, «S:c., I.s4()-'.j(>, jtart 1, ]). 71.)

" Mr. Webster, Secretary of State, wrote to the same Mexican minis-
ter, Febi'uary 21, J. S5 1 : 'The uuiiersigned llartered himself that after
the expression of the sentiments of the Governnu'iit contained in the
note of Mr. Buchanan to M. de la llosa, of 15th February, 1.S49, M. de
la Rosa would liave abstained fiom making a message of the President
to either house of Congress a subject of diijlomatic representation."

Lawrence's Wlieatou (ed. 1863), 385.

The President's cooimunications to Congress are matters of domestic
concern which are not within the range of the official notice of foreign
sovereigns.

Mr. Webster, Sec. ofState, to Mr. Hiilsemauri, Dec. 21, 1830. MSS. Xotes, Germ.
St. See, far this letter iu full, supra, ^ 47.

"The President's annual message is a communication from the Ex-
ecutive to the legislative branch of the Government; an internal trans-
action, with which it is not deemed i)roper or respectful lor foreign
powers or their representatives to interfere, or even to resort to it as
the basis of a diplomatic corresi)ondence. It is not a document ad-
dressed to foreign Governments."

Mr. Marcy, Sec. of State, to Mr. Herran, Dec. 22, 1856. MSS. Notee, Colombia.
To same effect see Mr. Fish, Sec. of State, to Mr. Preston, Dec. 12, 1870. MSS.
Notes, Hayti.

During Mr. Buchanan's admin istration,iu 1857, he held certain "confi-
dential conferences" witli Lord Napier on questions concerning Central
America. The misunderstandings that lollowed these interviews (see
Lord Niipier to General Cass, Ai)r. 12, 1S58; Br. and For. St. Pap.,
1857-'58, vol. 48. 051) are further illustrations of the wisdom of the
position taken by Mr. Monroe, and followed by other Presidents, to hold
no official intercourse with foreign ministei's except through the Secre-
tary of State, the Secretary's action not bi-iding the Governments con-
cerned unless when in the shape ol' notes or of reports of intei'views re-
duced to writing and assented to by both parties. As luither illustra-
tions of the position above state<i, see Lord Nai)ier\s rejjort of Mr.
Buchanan's informal talk in I'.ritish and Foreign State Papers, ut supra,
755. See also as to danger of oral communication, v^/Wr, § S\)b.

"This Department is the legal organ of communication between the
President of the United States and foreign countries. All foreign
powers recognize it and trajismit tlieir communications through it,
through the dispatches of our ministers abioad,or their own diplomatic
representatives residing near this Government. These communications
are submitted to the President, and, when i)roper, are replied to under
his direction by the Secretary of State. This mutual correspondence is
recorded and preserved in tjie aichives of this Department. This is, I

580

§ 79.] DIPLOMATIC AGENTS. [CHAP. IV.

believe, the same system which prevails in the Governments of civilized
states everywhere."

Mr. Seward, Sec. of State, to Mr. Dayton, June 27, 1862. MSS. Inst., France.

"At the same time I think it proper to suggest to you that all corre-
spondence between diplomatic and consular agents of the United States
residing in foreign countries is conducted, under the law of nations,
confidentially, with amenability only to the Government of the United
States."

Mr. Seward, Sec. of State, to Mr. Sullivan, Oct. 25, 1867. MSS. Dom. Let.

" It is neither convenient nor customary with the Executive depart-
ment to discuss or give explanations concerning the expressions of
opinions which are made in incidental debates and resolutions from
time to time in either or both of the legislative bodies, at least until
they assume the practical form of law. When they assume that form
they are constitutionally submitted to the President for his considera-
tion, and he is not only entitled, but he is obliged to announce his con-
currence or non-concurrence with the will of the legislature. (See infra^
§ 107.)

" It would not be becoming for me to entertain correspondence with
a foreign state concerning incidental debates and resolutions in regard
to the treaty for the two Danish islands while it is undergoing consti-
tutional consideration in the Senate and in Congress."

Mr. Seward, Sec. of State, to Mr. Yeaman, Jan. 2, 1868. MSS. Inst., Denmark.
As to this negotiation, see supra, $ 61o.

" Your dispatch No. 14, of the 8th ultimo, has been received. The
view is correct which it takes of the absurd newspaper report of a letter
from President Grant to the Emperor of Russia, congratulating the lat-
ter upon his denunciation of the clause of the treaty of Paris which re-
stricts liberty of navigation in the Black Sea. The qpcasions are rare
which are conceived to warrant or require a deviation on the part of the
President from the rule which limits his communications to foreign sov-
ereigns to mere letters of ceremony. The occasion adverted to was not
deemed sufficient to call for any such communication. It is true that
the United States, not having been a party to the treaty of Paris, may
have more or less reason to complain of any curtailment of their rights
under the law of nations which it may have effected. No formal com-
plaint on the subject, however, has as yet been addressed to either of
the parties to that instrument, though the restriction which it imposes
on the right of our men-of-war to the jfassage of the Uardfinelles and
the Bosj)horus is under serious consideration."

Mr. Fish, Sec. of State, to Mr. McVoagh, Jan. 5, l':'7I. MSS. Inst., Turkey;
For. Kel., 1871.

Correspondence by a foreign minister with the press in this country
on subjects connected with his mission, such correspondence involving
590

CHAF. IV.] SECRETARY OF STATE THE ORGAN. [§ 79.

an appeal to the people on diplomatic issues, is fjround for his dis-
missal.

Mr. Fish, Sec. of Slate, to Mr. Ciirtiii, Nov. IG, 1871. MSS. Inst., Russia. See
infra, $ 82.

Official communications with the President can be only through the
Secretary of State.

Mr. Fisli, Sec. of State, to Mr. Wasbburuo, June 19, 1873. MSS. Inst., France.

" It is not regular for any other authority than that of the depart-
ment of foreign affairs in the counfry where diplomatists are accredited
to address letters upon public business directly to them. When such
other authority has occasion to commuuicate with them, this is invaria-
bly done through the department intrusted with the foreign relations
of the country."

Mr. Fish, Sec. of State, to Mr. Cox, Jan. 22, 1874. MSS. Dom. Let.

The opinion of the Attorney-General of the United States cannot be
taken officially by a diplomatic representative of the United States
except through the medium of the Secretary of State.

Mr. Fish, Sec. of State, to Mr. Jay, Aug. 2, 1874. MSS. lust , Austria.

" The policy of the law is to prohibit all communication with private
and unofficial persons on subjects under discussion between this Gov-
ernment and another. Such commuuication can be made verbally by
trusted messengers, as much to the detriment of the public service and
the public interest, and in as complete disregard of the policy and the
letter of the statute, as it can by written correspondence. It may even
be more dangerous to intrust it to the memory or even the fidelity of a
messenger than to the exact words of a written communication."

Mr. Fish, Sec. of State, to Mr. Bassett, Nov. 20, 1875. MSS. Inst., Hayti.

Prince Bismarck, having declined to be " the medium of communica-
tion between the House of Eepresentatives of the United States and
the Reichstag of a resolution on the subject of the death of Mr. Las-
ker" (a late member of that body, who died in New York), Mr. Fre-
linghuysen, Secretary of State, in a telegram to Mr. Sargent, minister to
Berlin, after exidaining the friendly intent of the resolution, stated that
"its non-transmission officially, as it was intended and claimed on its
face to be of friendly intent, while a matter of regret, is not one of
concern to either branch of the Government of the United States." .

Mr. Frelinghiiyscn to Mr. Sargent, Mar. 10, 1884. MSS. Inst., Genu.

A foreign minister here is to correspond with the Secretary of State
on matters which interest his nation, and ought not to be permitted
to resort to the press. He has no authority to communicare his senti-
ments to the people by publications, either in manuscript or in print,
and any attenji)t to do so is conteni])! of this Government. His inter-

591

§ 80.] DIPLOMATIC AGENTS. [CHAP. IV.

course is to be with the Executive of the United States only, upon mat-
ters that concern his mission or trust.
1 Op , 74, Lee, 1797. See infra, $ 84.

That interference by a foreign minister in the politics of the country
of his mission is a breach of duty, see infra §§ 84, lOG.

III. CONTINUITY OF FOBEIGN INFLATIONS UNBROKEN BY PARTY

CHANGES.

§80.

Whatever may be the changes in the persons directing at home and
abroad our foreign relations, the Department maintains a continuity in
the traditions and management of the office; nor will itperujitan appeal,
based on party changes, to be made either to or from foreign represent-
atives. (iSee 8 J. Q. Adams' Mem., 264.)

This course was taken by Mr. Webster and Mr. Marcy in connection
with the action of Mr. Clayton in sending Mr. Mann to Hungarv. {Sujyra,
§§ 47#.)

How tar a Secretary of State can disclaim the action of his prede-
cessor was discussed when the nomination of Mr. Van Buren came before
the Senate in 1832. Mr. Van Buren, when Secretary of State, had said,
in instructions to Mr. McLane, that "in reviewing the causes which
have preceded and more or less contributed to a result so much regretted
(the refusal of Great Britain to modify the restrictions on the trade
between the United States and the West Indies), there will be found
three grounds upon which we are most avssailable: (1) In our too long
and too tenaciously resisting the right of Great Britain to impose pro-
tecting duties in her colonies; (2) in not relieving her vessels from
the restrictions of returning direct from the United States to the colo-
nies after ])ermission had been given by Great Britain to our vessels to
clear out from the colonies to any other than Briti.^h port; and (.3) in omit-
ting to accei)t the terms offered by the act of Parliament of July, 1825."
It was arguiHl that these instructions were a reflection on the preced-
ing Administration (that of Mr. J. Q. Adams), and this was one of the
chief grounds for the rejection of .Mr. Van Buren by the Senate, Mr.
Calhoun, Vice-President, giving the casting vote against it. It after-
wards transpired that these instructions were drawn from a dispatch of
Mr. Gallatin sent to the State Department in the last year of Mr.
Adams's administration.

1 Benton's Thirty Years in the Senate, 216.

IV. EXECUTIVE DISCRETION DETERMINES THE WITHDRAWAL OR RE.
NEWAL OF MISSIONS AND MINISTERS.

§ 81.

"It is necessary for America to have agents in different parts of
Europe, to ,ive some information concerning our affairs, and to refute
the abominable lies that the hired emissaries of Great Britain circulate
in every corner of Europe, by which they keep up their own credit and
ruin ours. 1 have been more convinced of this since my peregrinations

592

CHAP. IV.] WITHDRAWAL OR RENEWAL. [? 81.

in this country (ban ever. The universal and i)rofound ignorance of
America here has astonished me. It will require time and a great deal
of ])rudence and delicacy to undeceive them."

Mr. J. Adams to Mr. Franklin, Oct. 14, 1780. 7 John Adainn' Works, 317.

"In the same manner, or at least for similar reasons, as long as we
have Jiny one minister abroad at any Euroi)ean court, I think we ought
to have one at every one to which we are most essentially rehited,
whether in commerce or policy; and, therefore, while we have any
minister at Versailles, the Hague, or London, I think it clear we ought
to have one at each, though 1 confess I have sometimes thought that
after a very few years it will be the best thing we can do to recall every
minister from Europe, and send embassies only on special occasions."

Mr. J. Adams to Mr. LivlDgston, Feb. 5, 1783. 8 John Adams' Works, 37.

"The Chevalier de Pinto informs me that he has written to his court
for explanations upon some points, and expects an answer in a few da.-^s.
When it arrives, he will call upon me. In the mean time, he says his
court is solicitous to send a minister to America, but that etiquette forbids
it, unless Congress will agree to send one to Lisbon. They would send a
minister to New York, if Congress would return the compliment; but
if Congress will not send a minister plenipotentiary, they wish to send,
a resident or even a charge d'affaires, but etiquette will not permit this,
unless Congress will send a resident or charge d'affaires to Portugal."

]\Ir. J. Adams to Mr. Jefferson, Jan. 19, 1786. 8 John Adams' Works, :5(i7.

As to mode of recalling foreign ministers, see 8 John Adams' Works, 473, 478. •

On October 13, 1789, Gouverneur Morris, then in Paris, was asked by
General Washington to proceed to London as a private agent, and, "on
the authority and credit of this letter, to converse with His P>ritannic
Majesty's ministers" as to a treaty of commerce with the United States.

10 Washington's Writings, 43.

Gouverneur Morris, when unofficial agent for President Washington
in London, in 171)0, said, in a letter to President Washington, on May 29,
1790, that he inforuied Mr. Pitt and the Duke of Lee<ls that "we could
not appoint any minister, they so much neglected the former appoint-
ment. He asked me whether we would appoint a minister if they
would f I told him 1 could almost promise that we should, but was not
authorized to give any positive assurance."

1 Am. St. Pap. (For. li-A.), 124.

"Negotiation, in the present state of things, is attended with pecu-
liar difficulties. As the King of Great Britain twice i)roposed to the
United States an exchange of ministers, once through Mr. Hartley and
once through the Duke of Dorset, and when the United States agreed
to the proposition, flew from it; to send a minister again to St. James
till that court explicitly promises to send one to America is a humilia-
tion to which the United States ought never to submit. A remon-
strance from sovereign to sovereign cannot be sent but by an embassa-
dor of some sort or other; from minister of state to minister of state it
might be transmitted in many ways. A remonstraiuM* in the form of a
letter from the American minister of state to the Duke of Leeds, or

S. Mis. 102— VOL. T 38 ^^^

§ 81.] DIPLOMATIC AGENTS, [cHAP. tV.

whoever may be secretary of state for foreign afiairs, might be trans-
mitted through an envoy, minister plenipotentiary, or embassador of
the President of the United States at Paris, Madrid, or the Hague, and
through the British embassador at either of those courts. The utmost
length that can now be gone, with dignity, would be to send a minister
to the court of Loudon, with instructions to present his credentials,
demand an audience, make his remonstrance; but to make no estab-
lishment, and demand his audience of leave and quit the kingdom in
one, two, or three months if a minister of equal degree were not aj)-
pointed and actually sent to the President of the United States from
the King of Great Britain.''

Vice-President Adams to President Washington, Aug. 29, 1790. 8 John Adams's

Works, 499.
As to recall of Mr. Monroe and appointment of Mr. C. C. Pinckney as minister

to France in 1796, see infra, $ 85.

" Persevering in the pacific and humane policy which had been invari-
ably professed and sincerely pursued by the excutive authority of the
United States, when indications were made on the part of the French
Eepublic of a disposition to accommodate the existing differences be-
tween the two countries, I felt it to be my duty to prepare for meeting
their advances by a nomination of ministers, upon certain conditions
which the honor of our country dictated, and which its moderation had
given it a right to prescribe. The assurances which icere required of the
French Government previous to the departure of pur envoys have been given,
through their minister of foreign relations, and I have directed them to pro-
ceed on their mission to Paris. They have full jjower to conclude a treaty,
subject to the constitutional advice and consent of the Senate. The
characters of these gentlemen are sure pledges to their country that
nothing incompatible with its honor or interest, nothing inconsistent
with our obligations of good faith or friendship to any other nation, will
be stipulated."

Third Annual Address of President John Adams, 1799.
As to institution of special missions, see supra, ^.47.
As to conditions imposed by Fra^uce, see infra, § 83.

" I had twenty times answered these arguments by saying that there
was no such etiquette [as that requiring exchange of ministers]. It
was true that in ancient and more barbarous times, when nations had
been inflamed by long wars, and the people wrought up to a degree of
fury on both sides, so as to excite apprehensions that embassadors would
be insulted or massacred by the populace, or even imprisoned, as in Tur-
key, sovereigns had insisted that ambassadors should be exchanged,
and that one should be held as a hostage for the other. It had even
been insisted that a French ambassador should embark at Calais at the
same hour that an English ambassador embarked at Dover. But these
times were passed. Nations sent ambassadors now as they pleased.
Franklin and his associates had been sent to France ; Mr. Jay had been
sent to Spain ; I had been sent to Holland ; Mr. Izard had been com-
missioned to Tuscany : Mr. W. Lee to Vienna and Berlin, without any

594

CHAP. IV.] WITHDRAWAL OR RENEWAL. [§81.

stipulation for seuding ministers in return. We had a minister in Lon-
don three years without any minister from England in return. We have
had a minister at Berlin without any from Prussia."

9 John Adams'H Works, 271. (Patriot Letters, No 10.)

The British ministry having held back the appointment of a minister
to the United States, at a very critical period, for some months after
Mr. Jackson, at the request of the Government of the United States,
had been recalled, Mr. Pinkney, then representing the Unit^ed States at
London, on January 14, 1811, wrote as follows to Lord Wellesley :

"After a lapse of many months since I had the honor to receive and
convey to ray Government your lordship's repeated assurances, written
as well as verbal (which you declined, however, to put into an official
form), ' that it was your intention immediately to recommend the ai)point-
ment of a minister plenipotentiary from the King to the United States,'
the British Government continues to be represented at Washington by
a charge d'affaires, and no steps whatever ai)pear to have been taken
to fulfill the expectation which the above-mentioned assurances pro-
duced and justified.

" In this state of things, it has become my duty to inform your lord-
ship, in compliance with my instructions, that the Government of the
United States cannot continue to be represented here by a minister,
pleniiiotentiary.

"As soon, therefore, as the situation of the King's Government will
permit, I shall wish to take my leave, and return to America, in the
United States frigate Essex, now at Plymouth ; having first named, as
I am specially authorized to do, a fit person to take charge of the
affairs of the American legation in this country."

The following correspondence then ensued :

"I received at a very late hour last night two notes from Lord
Wellesley (bearing date 'February 15, 1811'), of which copies, marked
No. 1 and No. 2, are inclosed. Taken together (as of course they must
be), they announce the appointment of Mr. Foster as envoy extraordi-
nary and minister plenipotentiary to the United States, and set forth
the reasons why an appointment has been so long delayed.

" You will perceive, in the second and third paragraphs of the unoffi-
cial paper, a distinct disavowal of the offensive views which the appoint-
ment of a mere charg^ d'affaires and other circumstances appeared
originally to indicate.

" We are now told in writing that the delay in appointing a minister
plenipotentiary was occasioned, in the first instance, not by any such
considerations as have been supposed, but 'by an earnest desire of ren-
dering the appointment satisfactory to the United States and conducive
to the effectual establishment of harmony between the two Govern-
ntents'; that, more recently, 'the state of His .Majesty's Government
rendered it impossible to make the intended a])pointment,' and thiit
Lord Wellesley was, therefore, 'concerned to find, by my letter of the
14tli of January, that the Government of the United States should be
induced to suppose that any indisposition could exist, on the part of
His Majesty's Government, to place the British mission in America on
the footing most acceptable to the United States as soon as might be
practicable, consistently with the convenience of affairs in this country.

" The two papers are evidently calculated to i)revent me from acting
upon my late request of an audience of leave ; and they certainly seem

595

§ 81.] DIPLOMATIC AGENTS. [CHAP. IV.

to put it in my power, if they do not make it my duty, to forbear to act
upon it.

''I have it under consideration (looking- to the instructions contained
m your letter of the 15th of November) what course I ought to pursue.
It is at any rate my intention to return to America in the Essex, as 1
shall doubtless have the President's permission to do in consequence of
my letter to you of the 24th of November."

Mr. Pinkney to Mr. Sir.iih, Sec. of State, Feb. ](>, 1811. 3 Aiu. St. Pap. (For.
Rel.), 412.

"The result of ray retiectious on Lord Wellesley's two communica-
tions of the loth instant will be found in my letter to him of yesterday's
date, of which I now transmit a copy.

" It appeared to me that the appointment of a minister plenipoten-
tiary to the United States was nothing, or rather worse than nothing-, ij'
the orders in council were to remain in ifbrce, the blocknde of May, 1800,
to be unrepealed, the aflair of the (Jhesapeake to continue at large, and
the other urgent questions between us to remain unsettled.

" The ' posture of our relations,' as you have expressed it in your
letter of the loth of November, would not be 'satisfactorily changed'
merely by such an appointment; and, of course, my functions could
not be resumed upon the sole foundation of it.

" I have put it to Lord Wellesley to say explicitly whether full and
satisfactory arrangement is intended, before I answer his otScial letter
concerning my audience of leave. If he is prepared to do at once what
we require, or to instruct the new minister to do at Washington what
does not demand immediate interference here, I .shall think it my duty
to forbear to take leave on the 26ih instant. If he declines a frank
reply, or refuses our demands, I shall jDress for my audience, and put
an end to my mission."

Mr. Pinkney to Mr. Smith. Sec. of State, Feb. 18, 1811. 3 Am. St. Pap. (For.

Eel.), 414.
For a narrative of the causes of the disuiissal of Mr. Jackson by the United

States, see infra, §^ 84, 107.
The papers relative to the recall of Mr. Motley, in 1870, as minister at Loudon,

will be found in Senate Ex. Doc. No. 11, 41st Cong., 3d sess.
As to Mr. Motley's alleged expressions of disrespect to the President, see Senate

Ex. Doc. No. 1, 40th Cong., 2d sess.
The arguments for a distinct diplomatic corps are well iiut in Schuyler's Am.

Diplomacy, 164 j^.

V. NON-ACCEPTABLE MINISTER MAY BE REFUSED.

§ 82.
For dismissal of minister, see ij 84.

" It is a general rule that no nation has a right to keep an agent
within the limits of another without the consent of that other."

Mr. Jefferson, Sec. of State, to Mr. Carmichael, Oct. 14, 179-2. MSS. Inst., Min-
isters.

''Every foreign agent depends upon the doul)le will of the two Gov-
ernments — of that which sends him, and of that which is to permit
596

CHAP. IV.] WHEN MINISTER MAY BE REJECTED. [§ 82.

the exercise of Ids functions within its territory — and when either of
these wills is refused or withdrawn, his authority to act within that
territory becomes incomplete. By what member of th(; (our) Govern-
ment the right of giving or withdrawing permission is to be exercised
here, is a question on which no foreign agent can be permitted to make
himself the umpire. It is sufficient for him, under our Government,
that he is informed of it by the Executive."

Mr. Jefferson, Sec. of State, to minister of France, Dec. 9, 1793. MSS. Notes,
For. Leg. ; 4 Jeff. Works, 90.

The refusal of the United States to receive in 1809 a minister from
the then titular Bourbon King of Spain could not justly be regarded as
an ofieuse b}^ Ferdinand VII after the restoration of the Bourbons.
"It was imputable to the state of Spain at that time, her territory
being in the possession of contending armies nearly equal, victory some-
times favoring each, and the result altogether precarious."

Mr. Monroe, Sec. of State, to Mr. Ouis, May 5, 1815. MSS. Notes, For. Leg.

The Government of the United States, if there be personal objections
to a minister from a foreign sovereign, may, instead of declining to re-
ceive such minister, state the objections to such sovereign, saying that
if he still ask for the minister's recognition, it will be given " as an act
of accommodation to himself." But such recognition will not be given
when demanded as a matter of right. " Ko instance is recollected of
one power pressing another equally independent to recognize against
its will a minister to whom objections of a personal nature are enter-
tained."

Mr. Monroe, Sec. of State, to Mr. Onis, May 15, 1815. MSS. Notes, For. Leg.

A minister from a foreign sovereign will not be received when there
are personal objections to him, and when the nomination is forced, not
as a matter of courtesy, but in defiance of such objections.

Mr. Dallas, Acting Sec. of State, to Mr. Ouis, June 2G, 1815. See Mr. Monroe,
Sec. of State, to Mr, Onis, Dec. 8, 1815. MSS. Notes, For. Leg.

"The interchange of ministers between friendly powers is intended
for mutual advantage, and particularly for the important purpose of
preserving the relations of amity between them. Each has a right to
object to any person who has given just cause of offense, and to decline
receiving him as a minister, or to demand his recall in case he had been
received. IS^either power has a right to force on the other a person so
circumstanced as minister. Such an attempt would be incompatible
with the independence of the power on wliom it might be made. Self-
respect forbids a presumption that the idea was ever entertained by
your sovereign."

Mr. Monroe, Sec. of State, to Mr. Cevallos, July 17, 1815. MSS. Notes, For.
Leg.

597

§ 82.] DIPLOMATIC AGENTS. [CHAP. IV.

Tlie receptiou of a commercial agent is altogether a voliuitary act on
the part of the Government " to whom he is accredited, who may decline
V ithout giving offense."

4 J. Q. Adams' Mem., 88.

The right of the Government to whom a minister is sent to request
the Government sending him to recall him, is secured by public law.

Mr. Van Buren, Sec. of State, to Mr. Poinsett, Oct. 17, 1829. MSS. Inst., Am. St.

" In the intercourse between friendly nations, when the diplomatic
representative of the one has rendered himself so unacceptable to the
authorities of the other as to impair or destroy his usefulness, it has
ever been the custom, unless under extraordinary circumstances, to
yield to such a request when made in respectful and friendly terms.
This practice is founded upon the principle that the great interests of
nations ought not to be jeoparded merely for the sake of retaining an
individual in a diplomatic station. If diplomatic agents render them-
selves so unacceptable as to produce a request for their recall from the
Government to which they are accredited, the instances mnst be rare,
indeed, in which such a request ought not to be granted. To refuse it
would be to defeat the very purpose for which they are sent abroad —
that of cultivating friendly relations between independent nations.
Perhaps no circumstance would justify such a refusal, unless the na-
tina] honor were involved in the question, and this cannot be pretended
on the present occasion."

Mr. Buchanan, Sec. of State, to Mr. Jewett, Mar. 19, 1847. MSS Inst., Peru.

A Government to whom a diplomatic agent is sent may, without giv-
ing just cause of offense to the Government sending him, refuse to
receive him, and ordinarily a request for his recall will be at once
granted by the latter Government.

Mr. Buchanan, Sec. of State; to Mr. Carr, Nov. 18, 1848. MSS. Inst., Barb.
Powers.

" It must be borne in mind that an envoy is a person as well as the
abstract representative of his Government, and that it is the i^reroga-
tive of every Government to require that those with whom it deals be
personw gratce, and to decide the question for itself. This Government
has on several occasions availed itself of this personal right, without
thereby being supposed to reflect on the representative character of the
person himself, and still less upon the collective representative charac-
ter of his associates."

Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, Dec. 30, 1884. MSS. Inst.,
Mex,

"A diplomatic agent should be persona grata to the Government to
which he is accredited."

Printed Pers. Inst. Dip. Agents, 1885.

Ah to refusal of French Government to receive Mr. C. C. Pinckuey, see infru,
• $ 148&.
598

CHAP IV.] AS TO PRELIMINARY INQUIRIES. [§ 82a.

VI. NOT USUAL TO ASK AS TO ACCEPTABILITY IN ADVANCE.

§ 82a.

" This Government does not require other powers to ask, in advance, if
contemphited appointments of ministers will or will not be ac(;eptable."
But when such an inquiry is put, it is competent for this Department to
answer, "that unless certain prevalent impressions were unfounded, the
purposed appointment could not prove acceptable."

Mr. Fish, Sec. of State, to Mr.'Neal, Mar. 11, 1870. MSS. Inst., PortugaT.

" Upon reflection ithe importance of Ihe question becomes api)arent.
Consequently, I have made careful search for the precedents and prac-
tice in this Department for the last ninety years. The result enables
me to inform you that no case can be found in the annals of this Gov-
ernment In which the acceptability of an envoy from the United States
was inquired about or ascertained in advance of his appointment to
the mission for which he was chosen.

" \Vhilst the practice to which Count Kalnoky refers may, in a limited
degree, prevail among European states, yet in this respect the excep-
tions are very numerous, and there are important reasons why, in this
country, the practice should never have been adopted, and why its
adoption would not be practical or wise.

" Our system of frequently recurring elections at regular and stated
periods provides, and was intended to provide, an opportunity for the in-
fluence of public opinion upon those to whom the administration of pub-
lic; affairs has been iutrusted by the people temporarily, and for a fixed
time only, on the expiration of which an opportunity for a change in its
agents and policies is thus afibrded.

" The affiliation in sentiment between a political administration thus
defeated at the polls and a foreign nation closely interested in maintain-
ing certain international policies and lines of political conduct, might
render it difficult for an administration, elected for the very purpose of
])r()ducing a change of policj^, to procure the consent of the foreign
Government to the appointment of ageuts whose views were in harmony
with the latest and prevailing expression of public opinion as the result
of popular election."

Mr. Bayard, Sec. of State, to Baron Schaeffer, May 20, 1885. MSS. Notes, Aus-
tria ; Senate Ex. Doc. No. l,41Hh Cong., 1st scss. See, to same cftect, Mr.
Bayard, Sec. of State, to Mr. McLiiue, May 27, 1885, MSS. Inst., Franco ;
Mr. Bayard to Mr. Francis, July 1, 1885 ; Mr. Bayard to Mr. Lee, Aug. 31,
1885, MSS. Inst., Austria.
As to asking for acceptance of a minister in advance, see discussion in Schuy-
ler's American Diplomacy, 134 ff,

599

§ 83.] DIPLOMATIC AGENTS. [CHAP. IV.

Vli. CONDITIONS DEROGATORY TO THE ACCREDITING GOVERNMENT

CANNOT BE IMPOSED.

§ 83.

" You will at the same time perceive tliat the French Government
appears solicitous to impress the opinion that it is averse to a rupture
with this country, and that it has in a qualified manner declared itself
willing to receive a minister from the United States for the purpose of
restoring a good understanding. It is unfortunate for professions of this
land that they should be expressed, in terms which may countenance the in-
admissible pretension of a right to prescribe the qualifications which a min-
ister from the United States should possess, and that while France is
asserting the existence of a disposition on her part to conciliate with
sincerity the differences which have arisen, the sincerity of a like dis-
position on the part of the United States, of which so many demon-
strative proofs have been given, should even be indirectly questioned.
It is also worthy of observation that the decree of the Directory alleged
to be intended to restrain the depredations of French cruisers on our
commerce has not given, and cannot give, any relief. It enjoins them
to conform to all the laws of France relative to cruising and prizes,
while these laws are themselves the sources of the depredation of which
we have so long, so justly, and so fruitlessly comj)lamed.

'' The law of France, enacted in January last, which subjects to cap-
ture and condemnation neutral vessels and their cargoes, if any portion
of the latter are of British fabric or produce, although the entire prop-
erty belong to neutrals, instead of being rescinded, has lately received
a confirmation by the failure of a proposition for its repeal. While this
law, which is an unequivocal act of war on the commerce of the nations
it attacks, continues in force, those nations can see in the French Gov-
ernment only a power regardless of their essential rights, of their inde-
pendence and sovereignty — and if they possess the means, they can
reconcile nothing with their interest and honor but a firm resistance."

President John Adams, Second Annual Address, 1798.

The correspondence of Messrs. Pinckuey, Marshall, and Gerry, when ministers
to France in 1797-'98, together with the XT Z papers, is given in 2 Am.
St. Pap. (For. Kel.), 1.53 ff, 185 Jf, 205 #, 229 /. • The report of Mr. Picker-
ing, Sec. of State, Jan. 18, 1799, on this correspondence, is given in 2 Am.
St. Pap. (For. Rel.), 229.

" Persevering in the pacific and humane policy which has been inva-
riably professed and sincerely pursued by the executive authority of the
United States, when indications were made on the part of the French Re-
public of a disi>osition to accommodate the existing differences between
the two countries, I felt it to be my duty to prei)are for meeting their
advances by a nomination of ministers, upon certain conditions which
the honor of our country dictated, and which its moderation had given
600

CHAP. IV.] , AS TO TESTS IMPOSED. [§ 83.

a right to prescribe. The assurances which were required of the French
Government previous to the departure of our envoys liuve been given
through their minister of foreign relations, and I have directed them
to proceed on their missiou to Paris. They have full i)ower to conclude
a treaty, subject to the constitutional advice and consent of the Senate.
The characters of these gentlemen are sure pledges to their country
that nothing incompatible with its honor or interest, nothing incon-
sistent with our obligations of good faith or friendship to any other na-
tion, will be stipulated."

President John Adams, Tliird Annual Address, 1799.

While under ordinary circu?nstances the Government of the United
States will recall a minister sent to a foreign country when requested
by the Government of such country, such recall will not be made
when it would be an implied ai)proval of prior misconduct or of un-
just aggressions by the Government requesting it.

Mv. Buclianan to Mr. Wise, Sept. 27, 1845. MSS. Inst., Brazil.

"The question thus raised by your Govern ment involves principles
of the greatest importance, and has no precedent as yet discoverable
to me in modern times and in intercourse between friendly nations; and
having submitted the matter to the consideration of the President, I
am instructed by him to inform your Government, through you, that
the ground ui)on which it is announced, that the usual ceremonial cour-
tesy and formal respect are to be withheld from this envoy of the
United States to your Government, that is to say, because his wife is
alleged or supposed by your Government to entertain a certain religious
faith, and to be a member of a certain religious sect, cannot be assented
to by the Executive of the Government of the American people, but is
and must be emphatically and promptly denied.

"The supreme law of this land expressly declares that 'no religious
test shall ever be required as a qualification to any office or public trust
under the United States,' and by the same authority it is declared that
'Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.'

"This is a Government of laws, and all authority exercised mast find
its measure and warrant thereunder.

" It is not within the power of the President nor of the Congress nor
of any judicial tribunal in the United States to take, or even hear, tes-
timony, or in any mode to inquire into or decide upon the religious
belief of any official, and the proposition to allow this to be done by any
foreign Government is necessarily and a fortiori inadmissible.

"To suffer an infraction of this essential principle would lead to a
disfranchisement of our citizens because of their religious belief, and
thus impair or destroy the most important end which our Constitution
of Government was intended to secure. Religious liberty is the chief

601

83.] DIPLOMATIC AGENTS. . LCHAP. IV

coruer-stone of the American system of governmeut, and provisions for
its security are imbedded in the written charter and interwoven in the
moral fabric of its laws.

"Anything that tends to invade a right so essential and sacred must
be carefully guarded against, and I am satisfied that my countrymen,
ever mindful of the suffering and sacrifices necessary to obtain it, will
never consent to its impairment for any reason or under any pretext
whatsoever.

"In harmony with this essential law is the almost equally potential
unwritten law of American society that awards respect and delicate
consideration to the women of the United States, and exacts deference
in the treatment at home and abroad of the mothers, wives, and daugh-
ters of the Kepublic.

"The case we are now considering is that of an envoy of the United
States, unquestionably fitted, morally and intellectually, and who has
been duly accredited to a friendly Government, towards which he is
thoroughly well affected; who, in accordance with the laws of this coun-
try, has long since contracted and has maintained an honorable mar-
riage, and whose presence near the foreign Government in question is
objected to by its agents on the sole ground that his wedded wife is
alleged to entertain a religious faith which is held by verj^ many of the
most honored and valued citizens of the United States.

"It is not believed by the President that a doctrine and practice so
destructive of religious liberty and freedom of conscience, so devoid of
catholicity, and so opposed to the spirit of the age in which we live can
for a moment be accepted bj^ the great family of civilized nations or be
allowed to control their diplomatic intercourse.

"Certain it is, it will never, in my belief, be accepted by the people
of the United States, nor by any Administration which represents their
sentiments.

"Permit me, therefore, being animated only by the sincerest desire
to strengthen the ties of friendship and mutual respect between the
Governments we respectively represent, most earnestly and respectfully
to crave careful consideration of this note, and to request your Govern-
ment to reconsider the views you have communicated to me in respect
of the possible reception of Mr. Keiley on the mission of amity and
mutual advantage which, in the amplest good faith, he was selected by
this Governmeut to perform.

"Into the religious belief of its envoy, or that of any member of his
family, neither this Government nor any officer thereof, as I have shown
you, has any right or power to inquire, or to apply any test whatever,
or to decide such question, and to do so would constitute an infraction
of the express letter and an invasion of the pervading spirit of the
supreme lavv^ of this land.

" While thus making reply to the only reason stated by your Govern-
ment as the cause of its unreadiness to receive Mr. Keiley, permit me
602

CHAP. IV.] WHEN MINISTER MAY BE SENT BACK [§ 84.

also to remark that the President fully recoguizes the liigbly iiuportant
and undoubted right of every Government to decide for itself whether
the individual presented as the envoy of another state is or is not an
acceptable person, and, in the exercise of its own high and friendly dis-
cretion, to receive or not the person so presented. This right, so freely
accorded by the United States to all other nations, its Government
would insist upon should an occasion deemed to be proper arise.

Mr. Bayard, Sec. of State, to Barou Schaeffer, May 18, 1885. MSS. Notes, Aus-
tria. Senate Ex. Doc. No. 4, 49tli Cong., Ist sess.

" Question has arisen with the Government of Austria-Hungary
touching the representation of the United States at Vienna. Having,
under my constitutional prerogative, appointed an estimable citizen
of unirapeached probity and competence as minister at that court, the
Government of Austria- Hungarj" invited this Government to take cog-
nizance of certain exceptions, based upon allegations against the per-
sonal acceptability of Mr. Keiley, the appointed envoy, asking that, in
view thereof, the appointment should be withdrawn. The reasons ad-
vanced were such as could not be acquiesced in without violation of my
oath of office and the precepts of the Constitution, since they neces-
sarily involved a limitation in favor of a foreign Government upon the
right of selection by the Executive, and required such an application of
a religious test as a qualification for office under the United States as
would have resulted in the jjractical disfranchisement of a large class
of our citizens and the abandonment of a vital principle in our Govern-
ment. The Austro-Hungarian Government finally decided not to re-
ceive Mr. Keiley as the envoy of the United States, and that gentleman
has since resigned his commission, leaving the post vacant. I have made
no new nomination, and the interests of this Government at Vienna are
now in the care of the secretary of legation, acting as charge d'affaires
ad interimP

President Cleveland, First Annual Message, 1885.

VIII. MINISTER MISCONDUCTING HIMSELF MAT BE SENT BACK.

§84.

" The representative and executive bodies of France ha\ e manifested
generally a friendly attachment to this country, have given advantages to
our commerce and navigation, and have made overtures for placing these
advantages on permanent ground. A decree, however, of the National
Assembly, subjecting vessels laden with provisions to be carried into
their ports, and making enemy goods lawful prize in the vessel of a
friend, contrary to our treaty, though revoked at one time as to the
United States, has been since extended to their vessels also, as has been
recently stated to us. Eepresentations on ihis subject will bo immedi-
ately given in charge to our minister there, and the result shall be com-
municated to the legislature.

603

§ 84.] DIPLOMATIC AGENTS. [CHAP. IV.

" It is with extreme concern I have to inform you that t he proceed-
ings of the person whom they have unfortunately appointed their min-
ister plenipotentiary here have breathed nothing of the friendly spirit
of the nation which sent him. Their tendency, on the contrary, has
been to involve us in war abroad, and discord and anarchy at home.
So far as his acts or those of his agents have threatened our immediate
commitment in the war, or flagrant insult to the authority of the laws,
their effect has been counteracted by the ordinary cognizance of the
laws, and by an exertion of the powers confided to me. Where their
danger was not imminent, they have been borne with from sentiments of
regard to his nation, from a sense of their friendship toward us, from a
conviction that they would not suffer us to remain long exposed to the
action of a person who has so little respected our mutual dispositions,
and from a reliance on the promises of my fellow-citizens in their prin-
ciples of peace and order. In the mean time, I have respected and
pursued the stipulations of our treaties, according to what I judged
their true sense, and have withheld no act. of friendship which their
affairs have called for from us, and which justice to others left us free
to perform. I have gone further. Eather than employ force for the
restitution of certain vessels which I deemed the United States bound
to restore, I thought it more advisable to satisfy the parties by avowing
it to be my opinion that, if restitution were not made, it would be in-
cumbent on the United States to make compensation. The papers now
communicated will more particularly apprise you of these transaciious."

President Washington, special message, Dec. 5, 1793. See 1 Am. St. Pap. (For.
Rel.), 141.

That Washington's mature judgment was against dismissing Genet
except in case of necessity is admitted by Mr. Hildreth (4 Hist. U. S.,
439) : " So insolent continued to be the whole tone of Genet's corre-
spondence, and so open his attempts to stir up the peoijle, the State
governments, and the new Congress about to assemble, against the Ex-
ecutive, that Washington proposed to the Cabinet to discontinue his
functions and to order him away. He was himself strongly inclined to
this course; but this step, like that of publishing the dispatches, was
defeated by Jefferson and Randolph, against whose imited opinions Wash-
ington didnot choose to act. They suggested that Genet would not obey
his order, and that such a step might revive his popularity and give
him (Genet ?) a majority in the new Congress soon to assemble. Be-
sides, the measure was a very harsh one, and might expose the United
States to a declaration of war on the ])art of France, the only nation
on earth sincerely their friend." That Genet might have a majority in
his favor in Congress was not a contingency likely to affect the judg-
ment of Washington ; but there is no question that for other reasous
he concluded, after his usual deliberation, not to adopt the extreme
measures proposed by Hamilton and Knox.

The Government of the United States having finally asked the French
Government to recall Genet, he was recalled and Fauchet sent in his
604

CHAP. IV.] WHEN MINISTER MAY BE SENT BACK. [§ 84.

place. On February 21, 1794, FaucLot addressed a letter to Mr. Kaii-
dolpli, then Secretary of State, "comnnniicatiiift' the order of the Execu-
tory Provisory Council of the Freii(ih Republic;, 'to demand tlie arrest
of M. Geuet and all tlie other agents who may have participated in liis
faults and liis sentiments.'" I\Ir. Kandolph answered that he wasdirected
by the President to inform M. Fauchet "that notwilh-standing his sin-
cere disposition to cultivate its (the French llepublic's) friendship, be
thinks his legal power too questionable to cause the arrest to be made.'?

Mr. Eandolpli, Sec. of State, to Mr. Fancliet, Fel). 27,1794. MSS. Notes, For.
Leg.

As to recall of Genet aud Morris, see further infra, ^ 14.-i>.

Mr. Fauchet, accredited to take the place of Mr. Genet, entered on
his duties on February 21. 1794, and asked for Mr. Genet's arrest, for
misconduct. "Our co-operation was refused for reasons of law and
magnanimity."

Mr. Pickering, Sec. of State, to Mr. Monroe, June 1, 1795. MSS. Inst., Ministers.
1 Am. St. Pap. (For. Eel.), 709.

The dismissal in 180G of Yrujo, the Spanish minister, was based on
an attempt on l)is.i)arfc to bribe a news})aper in Phihulelphia to advo-
cate the Si)anish view of the boundary question then in controversy be-
tween Spain and the United States. His recall was demanded by IMr.
Madison, Secretary of State, but, at the request of his Government, it
w^as understood that he was to be i)ermitted to depart on the looting of
a minister going home on leave. But he took advantage of tliis con-
cession by delaying his departure, and bovering "about Washington
while the Spanish question was still before Congress, aud uj)on bring
notitied by Madison that his presence was disi)leasing to the President
he published two insolent replies, announcing that he shouhl stiiy in
the capital as long as he liked. * * A bill was proposed in the Senate
authorizing the President to order the departure of foreign ministers
in certain cases; which, however, was dropped, for to have passed it
would import that in tlie present instance the Executive had moved
l)recipitately."

2 Schouler's IJ. S., 108.

As to recall of Yrujo, Spanish minister, see further infra, ^ 106.

Private memoranda by Mr. Madison of his interviews with Mr. Eose,
in February,1808, are given in 2 Madison's Writings, 41 ItT- " Mr. Kose's
mission is abortive. Communications on the subject will be made to
Congress in a day or two. He made it an indispensable preliminary to
his entering on a negotiation, or even disclosing the terms of satis-
faction he had to offer, that the proclamation of the President should
be i)ut out of force.' This being inadmissible, it was proposetl that on
his disclosing his terms, and their appearing to be satisfactory, a re-
peal of the proclamation and the act of reparation might bear the same
date. His instructions being a bar to this, the correspondence was
closed, with an intimation that it rested with his Government to decide
on the case. He will depart, I understand, without delay."

Mr. Madison, Sec. of Stato (iniofiicial), to ]«r. Monroe, Maj. 18, 180>s ; 2 Madi-
son's Writings, 422.

605

§ 84.] DIPLOMATIC AGENTS. [CHAP. IV.

On JiTorember 23, 1809, Mr. E. Smith, Secretary of State, in a letter
to Mr. Pinkney, then minister to England, instructed Mr. Pinkney to
ask for the recall of Mr. Jackson, then British minister at Washington,
on account of offensive conduct of Mr. Jackson. He was not, however,
recalled at the time, though the United States Government declined to
have further oflBcial communication with him. On June 30, 1810, Mr.
R. Smith wrote to Mr. Pinkney " to repeat the demand for the recall of
Mr. Jackson," and reference was made to continued offenses by Mr.
Jackson in "toasts given by him at the public dinners at Boston."

The primary ground on which President Madison demanded the re-
call of Mr. Jackson was a statement of Mr. Jackson, in a note to Mi-.
Smith, Secretary of State, declaring that the agreement entered into
by the Administration with Mr. Erskine, who had preceded Mr. Jack-
sou, "was concluded in violation of that gentleman's (Mr. Erskine's)
instructions," which "were at the time, in substance, made known to
you." This was a charge at once of falsehood and of duplicity ; since
Mr. Smith has over and over again declared that Mr. Erskine's instruc-
tions were not known at the time to the Administration. The insult
was the more marked as Mr. Erskine had himself stated that he held
back his instructions under the impression that it was not his duty to
impart them. A joint resolution jiassed Congress sustaining the Ad-
ministration in dismissing Mr. Jackson, and declaring the course of
the latter to be indecorous and insulting. Further details of Mr. Jack-
son's misconduct in his mission are given, infra, § 107.

See as exhibiting the views of the minority in Congress on this subject, Quin-
cy's Speeches, 157 ff.

" In my letter of the 19th ultimo, I stated to you that the declara-
tion in your letter of the 11th that the disi)atch from Mr. Canning to
Mr. Erskine, of the 23d of January, was the only dispatch by which
the conditions were prescribed to Mr. Erskine for the conclusion of an
arrangement on the matter to which it related, was then, for the first
time, made to this Government. And it was added that, if that dis-
patch had been communicated at the time of the arrangement, or if it
had been known that the propositions contained in it were the only
ones on which he was authorized to make an arrangement, the arrange-
ment would not have been made.

" In my letter of the 1st instant, adverting to the repetitiou in your
letter of the 23d ultimo of language implying a knowledge in this
Government that the instructions of your predecessor did not authorize
the arrangement formed by him, an intimation was distinctly given to
to you that after the explicit and peremptory asseveration that this
Government had not any such knowledge, and that with such knowl-
edge such an arrangement would not have been m^de, no such insinua-
tion could be admitted by this Government.

" Finding that in your reply of the 4th instant you have used lan-
guage which cannot be understood but as reiterating and even aggra-
vating the same gross insinuation, it only remains, in order to in-eclude
opportunities which are thus abused, to inform you that no further
communications will be received from you, and that the necessity of
600

CHAP. IV.] WPEN MINISTER MAY BE SENT BACK. [§ 84.

this deteriuiuation will, without delay, be made known to ycnir Gov-
irnment. In the mean time a ready attention will be jijiven to any com-
munications affecting- the interests of the two nations through any other
channel that may be substituted."

Mr. R. Smitli, Sec. of State, to Mr. Jackson, Nov. 8, 1809. 3 Am. St. Pap. (For.
Re].), 318. See infra, ^107.

"Mr. Jackson immediately withdrew, with every member of his mis-
sion, from Washington ; he made New York the place of his residence.
The secretary of the legation was desired by the British uiinister to give
notice of that circumstance to the Department of State. The Govern-
ment, without delay, requested the recall of Mr. Jackson, and on the
14th of March, 1810, Mr. Pinkney, the American minister in London,
received notice that Mr. Jackson had been directed to return to England,
but his recall was not accompanied with any mark of the displeasure of
his own Government."

2 Lymau's Diplomacy of U. S., chap. i.

"In the cases of Erskine and Jackson the correspondence on his (Mr.
R. Smith's) part had in a manner falleu entirely on my hands."

Piesicleut Madisou's statement on the resignation of Mr. Smith, Sec. of State,
Apr. ,1811. 2 Madison's Writings, 499.

The foHowing confidential letters of President Madison to Mr. Jeffer-
son will be of use as illustrating the above :

"The Gazette of yesterday contains the mode pursued for reanimating
confidence in the pledge of the British Government given by Mr. Erskine
in his arrangement with this Government. The puzzle created by the
order of April struck every one. Erskine assures us that his Govern-
ment was under such impressions as to the views of this, that not the
slightest expectation existed of our fairly meeting its overtures, and
that the last order was considered as a reasonable (seasonable?) miti-
gation of a failure of the experiment. This explanation seems as extraor-
dinary as the alternatives it shows. The fresh declarations of Mr.
Erskine seem to have quieted the distrust which was becoming i)retty
strong, .but has not destroyed the effect, of the ill-grace stami^ed on the
British retreat, and of the commercial rigor by the new and insidious
duties stated in the newspaper. It may be expected, I think, that the
British Government will fulfill what its minister has stipulated, and
that if it means to be trickish, it will frustrate the proposed negotiation,
and then say these orders were not permanently repealed, but only
withdrawn in the mean time."

President Madison to Mr. Jefferson, June 20, 1809. Coulidential Jefferson MSS.,
Doj). of State. See 2 Madison's Writings, 444.

"You will see by the instructions to Erskine, as published by Can-
ning, that the latter was as much determined that there should be no
adjustment as the former was that there should be one. There must,
however, have been other instructions comprehending the case of tlie
Chesapeake and other communications from Canning accompanying the
British order of Ajiril 2(), as referred to in Erskine's quieting declara-
tion hist made to ^Ir. Smith. 1 believe also, that Erskine's letter to
Canning, not disclosed by the latter, will not warrant his ascribing to
Erskine the statement of conver.sations with Mr. G. (Gallatin), ^Ii'- S.

GOT

§ 84.] DIPLOMATIC AGENTS. [CHAP. IV.

(E. Smith), aiul myself. Piiikney will also disavow what Canuing put
in his mouth."

Same to same, Aug. 'A, 1809, ibid. 2 Madison's Writiuga, 449.

"Erskine is iu a ticklish situation with his Government. I suspect
he will not be able to defend himself against the charge of exceediii.i;'
his instructions, notwithstanding the appeal he makes to sundry others
not published. But he will make out a strong case against Canunig,
and he will be able to avail himself of much of the absurdity and eA'idcDt
inadmissibility of the articles disregarded by him. He can plead, also,
that the difference between his arrangement and the spontaneous orders
of April 2G is too slight to justify the disavowal of him. This dilier-
ence seems, indeed, to limit its importance to the case of Holland, and to
consist in the direct trade admitted by the arrangement and an indirect
one through the acljoiuing- ports requiied by the orders. To give imi)or-
tance to this distinction the ministry must avow, what if they were not
shameless they would avow, that their object is not to retaliate injury
on an enemy, but to prevent the legitimate trade of the United States
from interfering with the London smugglers of sugar and coffee."

>Same to same, Aug. 16, 1809, Hid. 2 Madisou's Writings, 451;

"Jackson, according to a note sent from Annapolis to Mr. Smith,
was to be in Washington on Friday evening last. The letters from Mr.
Pinkney brought by him were dated June 23, and merely rehearsed a
conversation with Canning, from which it would seem that C readily
admitted that his second condition (colonial trade) had no connection
with the subject, and that it was not to be expected the United States
would accede to the third (G. B. to execute our laws). Why, then, make
them ulfimata, or, if not ultimata., why reject the arrangement of E. (Ers-
kine) for not including them. For as to the first article, if he does not
fly from his language to P., the continuance of the non-intercourse vs.
France, cannot be denied to be a substantial fulfillment of it. From
his view of the matter, it might be inferred that Jackson came with a
real olive in his hand. But besides the geueral slipperiness of his su-
perior, some ideas fell from him in his conversation with P. justifying
distrust of his views."

Same to same, Sept. 11, 1809, ihid. 2 Madison's Writings, 453. See fiitther Mr.
Madison to Mr. Pinkney, Jan. 20, 1810. 2 Madison's Writings, 468/.

" The long debates on the resolution of Mr. Giles, on the subject of
Mr. Jackson, have terminated in affirmative votes, by large majorities.
This, with the refusal of the Executive to hold communication with
him, it is supijosed, will produce a crisis in the British policy towards
the United States, to which the representations of the angry minister
will doubtless be calculated to give an unfavorable turn. Should this
happen, our precautionary views will have been the more seasonable.
It is most probable, however, that instead of expressing resentment by
open war, it will appear in more extended depredations on our com-
merce, in declining to replace Mr. Jackson, and, perhaps, in the course
observed with respect to you, in meeting which your judgment will be
the best guide."

JrTesident Madison to Mr. Pinkney, minister at London, Jan. 20, 1810. 2 Madi-
son's Writings, 469.

608

CHAP. IV.] WHEN MINISTER MAY BE SENT BACK. [§ 84.

" From the maiiDer in wliicli the vacancy loft by Jacksou is provided
for, it is inferred that a sacrifice is meant of the respect belonging to
this Government, either to the pride of the British Government, or to
the feelings of those who have taken side with it against their own.
On either supposition, it is necessary to counteract the ignoble pur-
pose. You will accordiiioly find that on ascertaining the substitution
of a charge to be an intentional degradation of the diplomatic inter-
course on the part of Great Britain, it is deemed proper that no higher
functionary should represent the United States at London. I sincerely
wish, on every account, that the views of the British Government, in
this instance, may not be such as are denoted by appearances, or that,
on finding the tendency of them, they may be changed. However the
fact may turn out, you will, of course, not lose sight of the expediency
of mingling in every step you take as much of moderation, and even
of conciliation, as can be justifiable; and will, in particular, if the
present dispatches should find you in actual negotiation, be gcverned
by the result of it in determining the question of your devolving your
trust on a secretary of legation."

President Madison to Mr. Pinkney, minister at London, May 23, 1810. 2 Madi-
son's Writings, 474.

According to Sir A. Alison, the refusal of the British ministry to
"ratify this arrangement" (that of Erskine), "although fully justified
in point of right by Napoleon's violence, and by Mr. Erskine's deviation
from his instructions, may now well be characterized as one of the
most unfortunate, in point of expediency, ever adopted by the British
Government."

10 Alison's Hist, of Europe, 650. See infra, $$ 107, 1506.

Mr. Jackson's course in other respects is noticed more fully infra.,
§107.

Mr. li. Smith's explanation to Mr. Pinkney of the dismissal of Mr.
Jackson is in 3 American State Papers (Foreign Belations), 318,/'.
Mr. Pinkney's letter to Lord Wellesley, requesting Mr, Jackson's re-
call, is giv^en in same volume, 353,^. Lord VVellesley's reply is in same
volume, 355 ff. In this reply itis said that '' His Majesty is always
disposed to pay the utmost attention to the wishes and sentiments of
states in amity with him, and has, therefore, been pleased to direct the
return of Mr. Jackson to England. But His Majesty has not marked
with any expression of his displeasure the concluct of Mr. Jai^kson,
whose integrity, zeal, and ability have long been distinguished in His
Majesty's service, and who does not appear, on the present occasion, to
have committed any intentional ofiense against the Government of the
United States."

See 7 Wait's St. Pap., 283, 295; Lawrouce's Wlieatou (ed. 1863), 437.
As to alleged insults to Mr. Jackson, see infra, ^^ 94, 107.

The Government of the United States will acquiesce in a demand of
a foreign Government for the recall of a minister who is personally un-
acceptable to such Government.

Mr. Van Buren, Sec. of State, to Mr. Poins.tt. Od. ir,, 1820 MSS. Inst., Am.

States.

609
S. Mis. 1G2— VOL. I 30

§ 84.] DIPLOMATIC AGENTS. [CHAP. IV.

The publication by a foreign minister, during Lis official term, of a
document charging the United States with bad faith, will be ground to
demand his recall ; and if it be subsequently sustained by his Govern
ment, this will be regarded by the United States as a gross indignity.

Mr. Forsyth, Sec. of State, report to President of Dec. 2, 1837. MSS. Report
Book. See supra, ^ 79.

It is within the province of a Government to whom a minister is
accredited to request his recall, and this request, when personal to the
minister himself, will be complied with.

Mr. Buchanan, Sec. of State, to Mr. Jewett, Mar. 19, 1847. MSS. Inst., Peru.

While the right of a sovereign to require the recall of an offensive
minister sent to him is generally recognized, a qualification is recog-
nized in cases where the request is based on a charge of an ofi'ense
alleged to have been committed by such minister of which offense the
Government commissioning him holds him to be innocent. In such
case no recall based on this assumption of such offense will be granted.

Mr. Buchanan, Sec. of State,to Mr. Leal, Aug. 30, 1847. MSS. Notes, Brazil.

"In 1849, an exciting diplomatic correspondence took i)lace between
Mr. Clayton, Secretary of State, and Mr. Poussin, minister plenipoten-
tiary of France, named by the provisional Government. Though this
occurrence occasioned some delay in the reception of the letters of cre-
dence of the American minister, Mr. Kives, the French Government
disavowed and recalled its minister. Lesur, Annuaire, 1849, 6(io."

Lawrence's Wheaton (ed. 1863), 438.

Mr. Webster's report of June 23, 1852, on the withdrawal of Mr. Hiilsemanu as
charg6 d'affaires for Austria, is given in Senate Ex. Doc. No. 92, 32d Cong.,
Ist sess. See also Senate Ex. Doc. No. 9, Slst Cong., 1st sess., supra, $ 48.

Persistent enlisting in the United States of soldiers to serve in the
British army against Russia by British agents, with the connivance of
the British minister, and of certain British consuls, is an invasion of
the sovereignty and neutrality of the United States which will justify
a request to the British Government to recall the minister and consuls
concerned.

Mr. Marcy, Sec. of State, to Mr. Buchanan, June 9, 1855; MSS. Inst., Gr. Brit.

Same to same, July 15, 1855. Same to same, Oct. 1, 1855 ; Oct. 15, 1855 ; Oct.

31, 1855 ; Nov. 12, 18.55 ; Dec. 28, 1855 ; Apr. 22, 1856. Mr. Marcy to Mr.

Dallas, May 27, 1856 ; June 16, 1856.
As to prosecutions for enlisting in the United States under such circumstances,

see infra, U 387, 395, 404.

A foreign minister who engages in the enlistment of troops here for
his Government is subject to be summarily expelled from the country,
or, after demand of recall, dismissed by the President.

7 Op., 3G7, Gushing, 1855.

See as to cessation of intercourse with British minister, House Ex. Doc. No.
107, 34th Cong., Ist sess.

610

CHAP. IV.] WHEN MINISTER MAY BE SENT BACK. [§ 84.

" The conduct of Mr. Catacazy, the Kussiau minister at Washing-
ton, having been for some time past such as materially to impair his
usefulness to his own Government, and to render intercourse with him
for either business or social purposes highly disagreeable," Mr. Curtin,
minister to Russia from the United States, was instructed to intimate
to the Kussian Government that " under the circumstances the President
is of the opinion that the interests of both countries would be promoted
and those relations of cordiality with the Governmeiitof the Czar, of the
importance of which he is well aware, would be jilaced upon a much
surer footing ' if the head of the Russian legation here was to be
changed.' "

Mr. Fish, Sec. of State, to Mr. Curtin, June 16, 1871. MSS. Inst., Russia.

"The hesitation and delay in complying with the request directed in
dispatch of 16th June occasion disquiet and disappointment. The rea-
son alleged not satisfactory, as coiiimunication with minister for foreign
affairs is open. Decision important before the ad\'entof the prince, as
the President cannot be expected to receive as the principal attendant
of his highness one who has been abusive of him, and ia personally
unacceptable. Instruction of this date to you on the subject."

Mr. Fish, Sec. of State, to Mr. Curtin, Anj;. 18, 1871. (Telegram.) MSS. Inst.,
Russia.

" It is believed to be usual when a minister shall have made himself
so unacceptable to the Government to which he is accredited as to have
forfeited the confidence of that Government, and to have rendered in-
tercourse with him disagreeable, for the Government promptly to recall
him upon the mere intimation of a wish to that effect. This has inva-
riably been done in other similar instances which have occurred in the
history of this Government. It will be a cause of much pain to the
President if the Imperial Government should think proper to adopt a
different course on this occasion."

Mr. Davis, Acting Sec. of State, to Mr. Curtin, Aug. 18, 1871. MSS. Inst.,
Russia.

"Every Government has the right to have the representative of
another power an acceptable person, and no Government has the right
to expect of another the retention of a representative who indulges in
personal abuse of the head of the Government to which he is accredited,
as Mr. Catacazy has done. You may read this to the vice-chancellor."
Mr. Fish, Sec. of State, to Mr. Curtin, Sept. 5, 1871. MSS. Inst., Russia.

" The President, desiring to manifest the sincerity of his friendship
for the Russian .Government, and, in view of the expected visit of the
grand duke and of the alleged impossibility of sending another miuis-
ter to replace the one now here in season to accompany the prince, has
decided to tolerate the present minister until after the visit of the
prince. That minister will then be dismissed, if cot recalled. The

$ 85.] DIPLOMATIC AGENTS. [CHAP. IV.

President, however, will not foimally receive Mr. Catacazy, except
when he accompanies the prince, and can hold no conversation with
him.

"You will communicate this to the vice-chancellor immediately, and
may read it to him."

Mr. Fish, Sec. of State, to Mr. Ciirtin, Sept. 20, 1871, MSS. Inst., Russia.

After the Government of the United States has requested the recall
of a foreign minister, if there bo delay or difficulty in obtaining such
recall, his passports, in case of continued misconduct on his part, may
be sent to him forth v<'ith.

Mr. Fish, Sec. of State, to Mr. Catacazy, Nov. 10, 16, 1871. MSS. Notes, Rus-
sia.

"The official or authorized statement that a minister has made him-
self unacceptable, or even that he has ceased to be '•persona grata,^ to
the Government to which he is accredited, is sufficient to invoke the
deference of a friendly power and the observance of the courtesy and
the practice regulating the diplomatic intercourse of the powers of
Christendom for the recall of an objectionable minister. The declara-
tion of the authorized representative of the i)ower to which an offending
minister is accredited is all that can properly be asked, and all that a
self respecting power could give."

Mr. Fish, Sec. of State, to Mr. Curtin, Nov. 16, 1671. MSS. Inst., Russia.

As to recall on ground of extraneous publications, see supra, § 79.

As to Catacazy's retirement, see further Mr. Fish's Report of Dec. 6, 1871, Senate

Ex. Doc. No. 5, 42d Cong., 2d sess. Mr. Fish, Sec. of State, to Mr. Brown,

Oct. 10, 1871 ; MSS. Inst., Turkey.

IX. MODE OF PRESENTATION AND TAKING LEAVE.

§85.

Mr. Monroe, having been recalled from France in the fall of 1796, his
place was taken by Mr. C C. Pinckney, who arrived in Paris in Decem-
ber in that year. The day after Mr. Pinckney's arrival, on December 12,
Mr. Monroe and Mr. Pinckney visited De la Croix, the French minister
of foreign affairs, who took little pains to conceal his belief that Pinck-
ney had been sent to supersede Monroe on account of the latter's kindly
feeling to France. A few days afterwards Mr. Monroe received a formal
notification that Mr. Pinckney would not be received until the grievances
complained of by France were redressed ; and Mr. Monroe's position
was made peculiarly embarrassing by the fact that this communication
was coui^led with a profusion of compliments to himself. At that time
no stranger could remain in France without i)olice permission. Not
only did the Government refuse to recognize Mr. Pinckney as minister,
but he was informed, on January 25, that he could not remain in Paris
without this police permission, and on February 3 he was further in-
formed that by remaining he made himself liable to arrest. He accord-
ingly obtained his pass[)orts and left France lor Holland. jMr. Monroe
has been charged with want of dignity in accepting conspicuous hospi-

613

CHAP. IV.] PRESENTATION AND TAKING LEAVE. [§ 85.

tality from the French Governmeiil after his successor had been thus
repelled. But the farewell reee]>tion, in whieh this i)eculiar adulation
was bestowed on Mr. Monroe, was on December .JO, three weeks before
either he or Mr. Pinckney were advised of Mr. Pinckney's tinal rejection.
In Mr. Tickuor's Life (vol. 2, 41 ;5), ue are told that Baron Pichon, when
attempting-, in 1837, to explain the conduct of the Directory, intimated
that Mr. Monroe had spoken of ?»lr. ]*inckney as of aristocratic tenden-
cies. Memory after the lapse of forty years cannot be relied on, and
it is not unlikely that Mr. Pichon confused Mr. Monroe's statements
with his own prejudices. It is certain that Mr. Pinckney's letters to the
Department speak in the highest teinisof the generous and delicate
assistance he received from Mr. Monroe while they were together in
France. Mr. Pinckney was too discerning and uninipassione<l to have
been imposed on by mere professions of support; Mr. Monroe too hon-
orable to profess a support he did not give.

See 1 Schooler's Hist. U. S., 347; 5 Hildreth, U. S., 4G. See further details

infra, § 14HZ>.
As to ceremonial in respect to diplomatic agents, see 9 John Adams' Works, 271,

quoted supra, § 81.
Mr. J. Adams' account of his presentation to George III and the Queen is given

in detail in 1 Lyman's Dijdomacy of the U. S., 159 ff.
The details of the reception of Gerard, the first French minister to the U. S.,

on July 1778, are given in 1 Lyman's Diplomacy of the U. S., 57.

u "When a foreign minister arrives a.t London, Paris, St. Petersburg, or
other European court, he obtains an interview of the secretary of state
for foreign affairs, and delivers to him a copy of his letter of credence.
The secretary of state afterwards, on a day fixed, presents him to the
sovereign, to whom he delivers the original. On that day, or as soon as
convenient, he visits all the secretaries or heads of the Government.

" The foreign minister's wife, who has claims incident to the station
of her husband, makes a visit at the same time to the wives of the sec-
retaries or heads of the Government.

^'When foreign ministers leave the seat of government, to travel in
the interior, they give notice of it to the secretary of state for foreign
affairs. They likewise give notice of their return home."

Mr. Monroe, Sec. of State, to Mr. Serurier, May 5, 1814. MSS. Notes For. Leg.

"Mr. Daschkoff came to tell me that he had at length received his
letters of credence. He meant of recall. This is a mistake so common
that there is a confusion of ideas prevalent among three fourths of the
di[)lomatic characters I know. Letters of recall are received by a min-
ister from his own Government. Letters of recredence are froui the
Government to which he is accredited to his own, recommending him
back to his own master."
4 J. Q. Adams' Mem., 231.

Although the mission of a minister ordinarily terminates with his
delivery of a letter of recall, this is open to many exceptions. " The
more usual jn-actice has been for the succeeding minister to present the
letter recalling his predecessor." Hence an omission to send the retir-

«13

§ 85.] DIPLOMATIC AGENTS. [CHAP. IV.

ing minister a letter of recall, does not in itself sustain a minister in
remaining at his post after the period fixed for his return.

Mr, Forsyth, Soc. of State, to 5tli Auditor, July 5, 1840. MSS. Dom. Let.

"The diplomatic agents who are accredited to the President usually
transmit to the Department a copy of their letter of credence, with a
note requesting the appointment of a time for them to present the orig-
inal. A copy of the remarks which they may think proper to make on
the occasion, frequently accompanies their note asking for a presenta-
tion, and is submitted to the President in order that he may prepare a
suitable reply. It has not of late been deemed necessary to write out
this answer. The Secretary of State usually accompanies the diplomatic
agent to the President on his first presentation, but this is not deemed
necessary on subsequent occasions."

Mr. Marcy, Sec. of State, to Mr. Almonte, Jan. 27, 1855. MSS. Notes, Mex.

" This Department tinderstands that intercourse between a diplomatic
agent and the Government to which he may have been accredited, is
not always terminated only by the presentation of the letters of recall
of such agent. There are several other ways in which such intercourse
may be concluded. Whether this shall be brought about in one way
or in another, diplomatic immunities for the retiring agent may undoubt-
edly be claimed for a reason able time after his official functions shall be
at an end. That period, however, must depend upon circumstances of
which the Government to which he had been accredited is to be the
judge. The main object for which the privilege is allowed is to enable
the diplomatic representative to adjust his private affairs, and to depart
the country without annoyance. If, however, the privilege shall be
abused by an undue lingering in the country by such agent after his
official functions are at an end, the Government of that country is jus-
tified in regarding the immunities as forfeited. It is hoped, however,
that there may be no occasion to apply this rule in the case of Mr.
Catacazy."

Mr. Fish, Sec. of State, to Mr. Gorloflf, Deo. 1, 1871. MSS. Notes, Russia.

"Your dispatch of the 28th of March, marked '■ Separate^^ in relation
to the presentation by you at the courts of Bavaria, Wurtemberg, Baden,
and Hesse of letters of recall on the occasion of your retirement from
the post at Berlin, has been received, and the subject has been care-
fully considered.

"On examination of the precedent established in the case of Mr.
Wheaton, who while minister at Berlin was empowered to conclude
treaties with other German states, it is found that it was not deemed
expedient at that time to authorize Mr. Wheaton to present special let-
ters of recall. The Department regards the decision then made as cor-
rect, and adheres to it in the present case.

"Letters of recall to the Emperor of Germany are inclosed, and in
614

Chap, iv.] peesentation and taking leave. [§ 85.

presenting them you will express to the Emperor tlie satisfaction with
which the President entertains the conviction that your mission has
tended to cement the cordial relations of amity and good feeling which
he desires to maintain and preserve between two ])0wers which have
become kindred in every sense of the word."

Mr. Fish, Sec. of State, to Mr. Bancroft, Apr. 21, 1874. MSS. Inst.. Germ. ; For.
Rel., 1874.

"In most cases, a mission of the United States will be found already
established at the seat of government, and still in charge of tlie out-
going representative, or of a charg6 d'affaires ad interim. In either
case, the newly-arrived agent should seek, through the actual incum-
bent of the mission, an informal conference with the minister for for-
eign affairs, or such other officer of the Government to which he is
accredited as may be found authorized to act in the premi.ses, and
arrange with him for his official reception. He should at the same
time, in his own name, address a formal note to the minister for foreign
affairs, communicating the fact of his appointment and his rank, and
requesting the designation of a time and i>lace when he may present
his letter of credence,

" Should the diplomatic agent be of the grade of envoy extraordinary
and minister plenipotentiary or minister resident, in either of which
cases he will bear a letter of credence, signed by the President and
addressed to the chief of the Government, he will, on asking audience
for the puri^oseof presenting the original in pei>on, communicate to the
minister for foreign affairs the open office copy which accompanies his
original instructions. He will also, for the completion of tbe archives
of his legation, i^repare and retain on file a copy of his credentials.

"If, however, the agent be of the rank of charg^ d'affaires, bearing
a letter of credence address(5d to the minister for foreign affairs, he
will, on addressing to the minister the formal note prescril^ed in sec-
tion 23, communicate to him the office copy of his credential letter, and
await the minister's pleasure as to receiving the original in a personal
interview.

"Oh the occasion of presenting ceremonial letters of recall or of cre-
dence to the head of the Government, it is usual at most capitals for
the retiring or incoming diplomatic agent to make a brief address, per-
tinent to the occasion. This address should be written and spoken in
the English tongue by the representative of tlie United States.

" Before the day fixed for his audience of reception or of leave-taking,
he should furnish to the minister for foreign affairs a copy ot* his i)ro-
posed remarks, in order that a suitable reply thereto may be prepared.

"A copy of the address and of the reply must be sent to the Depart-
ment of State.

"When the retiring representative is, like his successor, of the grade
of envoy extraordinary and minister plenipotentiary or minister resi-
dent, itis customary for him to present his letter of recall in the sau)e
audience in which his successor ])resents his credential letter, unless
for some sufficient cause he should have been obliged to take formal
leave and present his letter of recall before the presentation of his suc-
cessor.

"It sometimes happens that the retiring diplomatic agent may not
have received his letter of recall from the Department of State in sea-
son to present it in person before his departure. In such cases his suc-

615

§ 86.] DIPLOMATIC AGENTS. [CHAP. IV.

cessor or, if need be (after receiving special instructioDs to that effect),
the charge d'affaires ad interim, when there is one, will present the let-
ter of recall in such manner as may be indicated to him by the minister
for foreign affairs."

Printed Pers. Inst. Dip. Agents, 1885.

" On arriving at his post, the minister's first duty is to inform the min-
ister of foreign affairs of his arrival and of his character, and to request
an interview for the purpose of asking an audience for the purpose of
presenting his credentials to the head of the state. He is usually re-
ceived at once by the. minister, and by the sovereign as soon as an inter-
view can be arranged, though in case of absence or ilhiess there may be
a delay of weeks, if not of months. Etiquette, however, demands that
the audience for presenting credentials should take place as early as
possible. These audiences are either public or private. In the first, the
minister is accompanied by the minister of foreign affairs, generally
followed by his own secretaries, and goes to the palace in more or
less state, according to the customs of the place ; for these vary greatly
in different cajjitals. For an ambassador a state carriage is always
sent. This is not always the case with the minister in a capital where
ambassadors also reside, it being considered desirable to draw distinc-
tions of ceremony between the two. In small countries, where there
are no ambassadors, a state carriage is usually sent for the minister, in
some places accompanied by an escort. At a formal audience all
parties are standing; the minister enters, is introduced to the sovereign
by the minister of foreign affairs, addresses a few words to him stating
his character, and presents his letters of credence. These the sovereign
takes, sometimes goes through the formality of reading them, and re-
plies briefly to the minister. After the formal part of the audience is
over, there is generally a friendly conversation of a few moments, and
the ceremony ends in much the same way as it began. In some coun-
tries it is exi^ected that a formal speech will be made by the minister to
the sovereign, and a formal reply made. In such cases the speech is
written out in advance and given to the minister of foreign affairs, who
returns a copy of the reply before the audience takes place. This is
in order to prevent embarrassment, as well as to see that nothing un-
pleasant be said. In some countries, as in Russia, a minister is nearly
always received in private audience. He goes to the palace alone, is
met by the grand master of ceremonies, conducted to the Emperor, in-
troduced into his room, and is left alone with him. After a word or
two the Emperor requests the minister to be seated; and the conversa-
tion is informal."

Schuyler's Am. Dip., 136-138.

X. INCUMBENT CONTINUES UNTIL ARRIVAL OF SUCCESSOR.

§86.

A foreign minister of the United States is not ordinarily displaced by
the appointment of a successor until the latter enters upon his duties.

13 Op., 300, Akerraan, 1870.

General Schenck on the 17th February, 1876, tendered his resignation
as minister to London, to take effect on the arrival of his successor.
616

CHAP. I.] WHEN INCUMBENT HOLDS OVER. [^ 86.

Before liis letter of resignation arrived, and on the 21st February,
1876, lie sent a telegram asking leave of absence to rei)air to Washington,
which leave was given on 23d February. On March the Secretary
of State wrote to General Schenck that his resignation was accei)ted.
Before this letter reached London Gener;il Schenclc was on his way to
Washington. On 17th February the name of Mr. Dana was sent to the
Senate as successor to General Schenck, the message stating that the
nomination was in place of General Schenck, " resigiied." It was held
that when the resignation was tendered, and the time at which it is to
take effect specifically named in the resignation, the acceptance of the
resignation without qualification was an acceptance with the condition
attached. It was at the same time held that if General Schenck had
remained in England he Avould have continued to be minister until the
arrival of his successor; but having subsequently obtained leave of
absence, and having returned in pursuance of that leave, he ceased to
be minister on the nomination and confirmation of his successor.

15 Op., 911, Pierrepont, 1876.

" Eesignation while at the agent's post is always understood to take
effect on his being relieved by his successoi'. If desired to take effect
sooner, the circumstance should be stated in the letter of resignation,
and be so accepted, before the incumbent quits his post.

" Eesignation while on leave of absence in the United States is under-
stood to take effect from the date of its acxeptance.

" If the diplomatic agent tender his resignation while absent from his
post on leave, but not in the United States, it is understood, unless
otherwise stated, that he will return to his mission on the termination
of his allotted leave and await the arrival of his successor; but if his
successor reach the seat of the mission before the termination of the
agent's leave of absence, his resignation and his leave of absence take
effect and determine on the entrance of his successor upon the duties of
his office by presentation of his credentials.

"If a diplomatic agent, having received leave of absence (with or
without ])ermission to return to the United States), tender his resigna-
tion to take effect at the expiration of his leave of absence, it may be so
accepted, provided the demands of the i)ublic service do not re(iuire
that the vacancy be sooner filled ; and if so filled, the retiring otficer's
leave shall be held to terminate thereby.

"A diplomatic agent may be transferred to another post, either upon
his own application, if circumstances make it advisable to accede to his
request, or in the discretion of the President. If the latter be the case,
his non-acceptance of the arrangement does not give him any chiim to
remain in his former oflice.

"A recall is usually accomplished at the i)leasure of the President,
during a session of the Senate, by sending to that body the nomination
of the officer's successor. Upon the confirmation and commission of
his successor the original incumbent's office ce;ises. He is, however,
expected to remain at his post until duly relieved. If circumstances
require otherwise, the case must be governed by the special instructions
of the Secretary of State. In any case his official functions do not cease
until he has received notiflcatiou of the appointment of his successor,

617

$ 87.] tUPLOMATIC AGENTS. [cHAP. IV

either by specific instructiou of the Department of State or by the exhi-
bition of his successor's commission.

"A diplomatic officer may be recalled while on leave of absence, and
his successor appointed, as above. In such case, his office, and with it
his leave of absence, ceases on the receipt by him of official notification
of the fact.

Printed Pers. Inst. Dip. Agents, 1885.

XI. HOW FAR DOMESTIC CHANGE OF GOVERNMENT OPERATES TO

RECALL.

§87.

" The maxim of the President toward France has been to follow the
Government of the people. Whatsoever regimen a majority of them
shall establish is both de facto and de jure that to which our minister
there addresses himself."

Letter from Depfc. of State to Mr. Adiims, Feb. 27, 1795, approved and applied
to the duty of the U. S. minister at the Netherlands by Mr. Pickering, Sec.
of State, in letter to the President, July 21, 1796. MSS. Dom. Let.

On the recognition of foreign sovereigns, see supra, ^ 70.

" The conflicting claims set up by Mr. Barrozo Pereira and Mr. Tor-
lade d'Azambuja, the late and present representatives of the Govern-
ment of Portugal near the United States, with respect to the archives
of the Portuguese legation, gave rise to a legal procedure for their re
CO very, instituted by the latter against the former in one of the State
courts of Pennsylvania. Mr. Barrozo, who declined surrendering them,
was arrested on legal process, and put in confinement upon his refusing
to give bail in the sum of one hundred thousand dollars for his appear-
ance at the trial, which was to decide the rights set up by the respective
parties. Under these circumstances he ai:>plied to this Department for
evidence as to his public character and the exemx)tions attached to it,
and for its interference in procuring his release from confinement. On the
other hand, Mr. Torlade d'Azambuja, having made a similar application
for evidence to support his own title, this Department was drawn into
an interference which renders it expedient that you should be placed in
possession of such facts in relation to it as will enable you to impart to
the Brazilian Government, in case it should be asked, correct and cir-
cumstantial information respecting the part which was taken in the
affair by this Department, and the views entertained respecting it by
the President and Government of the United States.

" The only active agency of this Department in the controversy was
a letter addressed to Mr. Barrozo, at the instance of Mr. Torlade, re-
questing him to deliver to the last-mentioned gentleman the archives of
the Portuguese legation. This request not being complied with by Mr.
Barrozo, who stated his reasons for not doing it, the matter in dispute
was left to take its course before the court where the suit had been insti-

018

CHAP. IV.] CHANGE OF GOVERNMENT. § 87.

tated, and which, aided by the evidence furnished fiom, this Depart-
ment with respect to the public character of the parties, quaHhed the
writ, and released Mr. Barrozo from the process issued against him.

* * * "The court having- determined to consider Mr. Barrozo as
still enjoying the privileges and immunities attached to the represent-
ative character of a public minister, the attorney of the United States
for the eastern district of Pennsylvania thought it his duty to institute
a suit against the ])ersons concerned in' the arrest of Mr. Barrozo for an
infraction of the act of Congress exempting public ministers from judicial
process, which suit now awaits a decision in the due course of law."

Mr, Van Buren, Sec. of State, to Mr. Brown, Oct. 20, 18:W. MSS. lust., Am. St.

According to ordinary European practice, on the accession of a new
sovereign, new letters to him are forwarded to ministers resident at his
seat of Government.

Mr. Fish, Sec. of State, to Mr. Schenck, Apr. 27, 1H75. MSS. Inst., Or. Brit.

This question came before the district court of Philadeli)hia, which
held that a charg6 d'affaires who has returned his exequatur and ob-
tained his passports cannot be sued in trover for the archives of the
mission by a new minister who represents an incoming adverse dynasty,
though such new minister is recognized by the Secretary of State, the
reason being that the outgoing minister is entitled as a returning min-
ister to his privilege from suit.

D'Azambuja v. Pereira, 1 Miles (Phi!.), 3G6.

It was further held that the recognition of a foreign minister is con-
clusive evidence of the authenticity and validity of his credentials, and
that where a diplomatic representative announces the cessation of his
functions by reason of a change of authority in his country and obtains
his^ passports, he has not waived his privilege as a returning minister,
and the process should be quashed. Ithas been also held that such a suit,
as in this case, is no evidence that the sovereign has deprived the charge
of his privilege, even if it wer e competent so to do.

Torlade v. Barrozo, 1 Miles (Phil.), 361.

Subsequently the attorney who issued the capias was indicted under
the act of Congress and tried in the Federal court. The case went to
the Supreme Court of the United States on a difference of opinion, and
a nolle prosequi was entered by direction of the President.

U. S. V. Phillips, 6 Pet., 776,

For other points in this controversy, see 8 J. Q. Adams' Mem., 221, ff.

A change in the Government by which a foreign minister is accred-
ited suspends the activity of his functions, but does not necessarily
terminate them, and during such Ruspension he is entitled to the immu-
nities of a public minister. Mr. Barrozo Pereira, the Portuguese charg6
d'affaires, on the 30th October, 1829, was consequently held entitled to

619

§ 88 ] DIPLOMATIC AGENTS. [CHAP. IV.

the respect and iininuuities of a public uiiuister, notwitbstandiug the
assumption of regal power in Portugal by Don Miguel in exclusion of
Don Pedro IV.

2 Op.. -290, Berrieu, 1829.

As between the American Republics in which the executive power is
permanent and continuous, the functions of a public minister do not
cease on a mere change of President. A fortiori the Mexican commis-
sioner, Mr. Salazar, aj)poiuted by President Santa Anna to act on be-
half of Mexico in defining the cession of territory to the United States,
under the Mesilla treaty of December 30, 1853, is not deprived of his
authority by the resignation of President Santa Anna and the install-
ment of a successor.

7 Op., 582, Gushing, 1855.

XII. DIPLOMATIC GRADES.

§88.

By the congresses of Vienna and Aix-la-Chapelle four distinct kinds
of embassies were recognized :

(1) ''Ambassadeurs," legates, and nuncios of the Pope. These are
regarded as the personal representatives of the sovereign by whom
the.^ are sent.

(2) Ministers plenipotentiary and envoys.

(3) Ministers resident.

(4) Charges d'affaires, who are appointed by the minister of foreign
aftairs, while the three classes first above named are commissioned nom-
inally or actually by the sovereign.

Wliart. Com. Am. Law, ^ lfi9.

As to rules of precedence of congress of Vienua, see Blackwood'-s Mag. for Dec,
1873, vol. 114, p. 681.

That diplomatic agents are not to appear officially but with their full
titles, and to negotiate only with ministers of equal rank, see 7 John
Adams' Works, 451, 452 : 8 id., 4.

" In the practice of our Government there is no immediate connection
or dependence between persons holding diplomatic and consular aj)-
pointments in the same country; but, by the usage of all the commer-
cial nations of Europe, such a subordination is considered as of course.
In the transaction of their official duties the consuls are often in neces-
sary correspondence with their ministers, through whom alone they can
regularly address the supreme Government of the country wherein they
reside, and they are always supposed to be under their directions.' ,You
will accordingly maintain such correspondence with the consuls of the
United States in France as yo': shall think conducive to the public
interest ; and in case of any vacancy in their offices, which may require
a temporary appointment of a person to i^erform the duties of the con-
sulate, you are authorized, with tiie consent of the Government to
G20

CHAP. IV.] DIPLOxMATIC GRADES. [§ 88.

which you are accredited, to make it, giving imincdiatc, noti(M' of it to
this Department."

Mr. Adams, Sec. of State, to Mr. Brown, Dec. 24, 1h'>:5. MsS. iii.st., MiniMters.

A report by Mr. Clay, Secretary of State, January 31 , 1827, on the posi-
tion of charges d'affaires is contained in House Doc. No. 452, 19th Cong.,
2d sess. In this report, after enumerating a scries of cases of persons
appointed as charges d'afiaires, with their respective terms of otlice, Mr.
Clay i)roceeds as follows :

" Most of the preceding appointments of charges d'aftaircs wtMc ma<le
whilst we had ministers appointed to reside near the same Government.
Mr. Purviance was so appointed by Mr. Monroe, being the regular min-
ister of the United States in London at the time. ]\[r. Erviug, being
the secretary of legation at Madrid, was intrusted with the charge of
our affairs until the arrival of Mr. Bowdoin, our minister. Mr. Ilarris,
at St. Petersburg, was left in charge of our affairs whilst Mr. Adams
was absent on the duty of assisting in the negotiation of peace with
Great Britain. Mr. Lawrence was left charg6 d'affaires by IVIr. Russell
whilst this gentleman was absent from Stockholm on the same service
of treating of peace. Mr. Jackson was left charge at Paris after Mr.
Gallatin's appointment, but before his arrival in France, as the minister
of the United States. Mr. Brent was intrusted with the charge of our
affairs during Mr. Forsyth's return to the United States. In the same
character, at Stockholm, Mr. Hughes was left by Mr. Ilussell on his
return home. Mr. Pinkney was left by Mr. (Jamjjbell in charge of our
affairs in July, 1820, Mr. Middleton having been appointed minister
the preceding April. Mr. Ai)pleton was left in charge of our affairs by
Mr. Forsytli, at Madrid, in March, 1823, Mr. Nelson having been ap-
pointed minister the preceding January. Mr. Watts was left at Bogota,
in charge of our affairs, in the year 1825, during Mr. Anderson's absence
on a visit to the United States. And, lastly, ^Ir. John A. King was
left by Mr. Rufus King in charge of our affairs after the appointment
but before the arrival of Mr. Gallatin at London. The necessity of
confiding temporarily to a charg^ the affairs of a Government, which is
ordinarily represented by a minister plenipotentiary, arises out of the
absence of a minister, no matter from what cause. It is sui)i)0sed not
to be affected by the fact of a minister's having notified his intention to
return and the appointment of his successor.

" The authority under which the above appointments were made is
believed to be furnished by the Constitution of the United States, an<l
the public law and usage of nations. So important is it regarded to
preserve, without interruption, the diplomatic intercourse between
nations which are mutually represented by ministers, that ui)on the
death of a minister the secretary of legation becomes, by established
usage, ipsofaeto, charg6 d'affaires until his Government is advised and

021

§ 88.] DIPLOMATIC AGENTS. [CHAP. IV.

provides for the event. The period during which they respectively con-
tinued to act in the character of charge d'affaires will be seen by an
inspection of the annexed abstract from the books of the Treasury,
marked A, to which a reference is respectfully requested.

"The duties to be performed by a charge d'affaires, so appointed, are
to be found in the same public law and usage, and may be stated, in the
general, to be the same as those of the minister whose place he supplies.
He transacts the ordinary business of the legation ; keeps its archives
and an ofiBce ; corresponds with the Government where he is accredited,
and with his own; and sustains an expense and maintains an inter-
course, with the diplomatic corj)s corresponding to the new station to
which he is elevated.

" The compensation received by the several persons so apj)ointed
(with the exception of Mr. John A. Smith and Mr. Watts, whose accounts
are not yet closed, but will be finally liquidated on the same principles),
may be seen in the above extract from the Treasury. From that abstract
it appears : First, that the allowance of safarj^ in the character of charge,
in the cases there stated, has been uniform ; second, that the allowance of
an outfit has been most usually, but not always, made 5 third, that in some
instances the temporary appointment has been continued after the inter-
vention of a session of the Senate, as in the cases of Mr. Purviance, Mr.
Eussell, Mr. Lawrence, Mr. Jackson, Mr. Brent, Mr. Hughes, and Mr.
Sheldon, and in two cases (those of Mr. Erving and Mr. Harris) after the
intervention of several sessions of the Senate 5 and fourth, that in the case
of Mr. John A. King, the allowance made to him was a medium between
the highest and lowest allowances that had been previously made. The
highest was made in the cases of Mr, Eussell and Mr. Jackson, to each
of whom, besides the outfit and salary of a charge, a quarter's return
salary was allowed. Mr. King was not allowed salary as a charge during
the absence of Mr. Gallatin on his visit to, Paris last fall, nor was he
allowed a quarter's return salary as charg6. He was, moreover, the
bearer of a convention, the first intelligence of the conclusion of which
reached the Department by his. delivery of the instrument itself. Such
a service is always regartled in the transactions of Governments as one
of peculiar interest. He might have been, but was not, allowed the
usual compensation made to bearers of dispatches."

6 Am. St. Pap. (.For. Eel.), 555.

" The object of diplomatic missions is to adjust differences and conduct
affairs between Governments in regard to their political and commercial
relations, and to furnish the Government at home with information
touching the country to which the mission is accredited more full and
accurate than might be obtained through the ordinary channels, or more
j)romptly than the same information might otherwise be received. The
grade of a mission may be higher or lower, according to the estimate
of its importance.
622

CHAP. IV.] DIPLOMATIC GRADES. [§ 88.

"As a general rule, no rrovernmeMt semis to, or at least continues
in, another country a minister of a higher grade tlian that country may
reciprocate. This rule, however, is by no lueaus invariable, and for
various reasons it seems to be proper to leave it to the President to
«letermine the cases in which excei)tions oii,i>ht to be made. There are
not sufficient advantages in having ministers of the highest grade
accredited to all Governments — the most inconsiderable as well as the
most important — to justify a departuie from a long prevalent and com-
mon usage, with many good reasons to sustain it."

Mr. Marcy, Sec. of State, to Mr. Penuiugton, chairman of the Committee on
Foreign Aifairs, House of Representatives, May 23, 185G. MSS. Report
Book.

" Your dispatch No. 61, of the 16th ultimo, relative to the question
of precedence which has arisen among the representatives of foreign
powers of Tangier, has been received. In reply I have to state that
every nation may consult its own jjleasure in regard to the grade of its
dii>lomatic or other representative in a foreign country. That grade
must be i^resumed to be measured by its sense of the importance of its
relations with the power to tn hich the representatives may be accredited.

" Consuls have diplomatic functions in the Barbary states. The
United States consul is accredited to the Emperor of Morocco. His
predecessors were accredited in the same way, and the consuls at Tri-
poli, Tunis, and in Egypt are, respectively, accredited to the heads of
the Governments of those countries.

" It is customary, where the rules of the treaty of Vienna and the
l)rotocol of Aix-la-Chapelle are acknowledged, for the eldest of the chief
grade to take precedence of all others, and the eldest also when they
are all of the same grade. Is this rule binding and oj)erative at Tan-
gier ?

" The French have thought proper to accredit a minister plenii)oten-
tiary to the Emj^eror of Morocco, who resides at Tangier, and who
claims precedence over the representatives of other Governments there
solely in virtue of the superiority of his official grade. Is this claim
indefeasible ? The rules in regard to precedence above referred to, hav-
ing been embodied in a treaty and in a protocol, may be technically
binding only on the parties to those instruments. The United Spates
were not. a party to them. The Emperor of Morocco might «lisregard
them for a similar reason. Those rules, however, may be said to have
been merely a formal recognition by the chief p6wers of Europe of a
custom which had been the law of nations upon the sul>ject ever since
diplomacy began in modern times. As such they have hitherto been
practically accepted even by this Government, whenever it may have
had occasion to send representatives of any of the grades to which
they refer. We have never had any officer at Tangier of a "higher grade
than consul. If, however, we should accredit a minister plenipotentiary

623

§ 88.] DIPLOMATIC AGENTS. [CHAP. IV.

to the Emperor of Morocco, we certainly should expect him to have prec-
edence on public occasions, and in official proceedings, over the repre-
sentatives of lower grade from other powers. Should not the same
privilege be conceded to other states ?

" The advantage, if it be one, is accidental now in the case of France.
It may be claimed by ourselves, or by Mexico, or by Switzerland, to-
morrow.

" If, as cannot be denied, the grade of a diplomatic agent implies the
opinion entertained by his Government of the importance of his rela-
tions with the Government to which he may be accredited, this may, it
seems, be properly allowed. It may, however, be taken for granted
that, whatever may be the grade of such an agent, his social or public
efficiency is by no means always in proportion to his grade, but will be
influenced by the comparative importance of the country he may repre-
sent, and will also comport with the strength of his character and of his
abilities.

" It is not supposed that the tardiness of the minister of France in
asserting the privileges of his grade precludes him from assuming them
whenever he may deem it advisable.

" Under these circumstances, the impression is entertained that it will
not be contrary to your official dignity, or that of the Government which
you represent, to acquiesce in the application at Tangier of the conven-
tional rule which prevails here and everywhere else."

Mr. Seward, Sec. of State, to Mr. McMatli, Dec. 30, 1868. MSS. Inst., Mo-
rocco; Dip. Corr., 1868.

"A charge d'affaires can only be legally and properly recognized when
officially accredited to the Department by the minister of foreign affairs
of the country which he claims to represent."

Mr. Fish, Sec. of State, to Mr. Squier, Nov. 4, 1869. MSS. Notes, Honduras.

" Whilst in the official and private intercourse between a minister and
his secretaries it is undoubtedly among the first of his duties to observe
a frank, courteous, and kindly demeanor towards them, on the other
hand, it is no less incumbent on the secretaries to fulfill with alacrity
and dispatch, in the best manner they are able, the general and occa-
sional instructions of the minister touching the afi'airs of the legation,
and to maintain in their intercourse with him an unvarying due observ-
ance of all the deference which characterizes the gentleman, and which
is prescribed by the rules of good breeding. No servility, however,
ou their part, or any compromise of that self-respect which they owe to
themselves, is expected."

Mr. Fish. Sec. of State, to Mr. Vignaiul, Jan. 18, 1876. MSS. Inst., France.

A " political agent," sent as such by a foreign Government to the
United States, is not to be regarded as a diplomatic character, entitled
624

CHAP. IV.] DIPLOMATIC GRADES. [§ 88.

to the immunities of such, eveu though he is at the same time consul-
general.

Mr. Blaiuo, Sec. of State, to Mr. Totten, Apr. 12, 1881. MSS. Dom. Let.

"As long as the minister is present the secretary of legation is not
recognized by any foreign Government whatever as being authorized
to perform a single official act other than as directed by the minister
himself."

Mr. Freliughuysen, Sec. of State, to Mr. Wurts, Feb. 28, 1883. MSS. Inst.,
Russia.

The Department cannot, under present circumstances, " in justice
to its ministers abroad, ask Congress to give them higher rank with
their present salaries; neither could it with propriety appeal to Con-
gress for an allowance commensurate with the necessary mode of life
of an ambassador."

Mr. Freliughuysen, Sec. of State, to Mr. Hunt, Jan. 31, 1884. MSS. Inst., Russia.

" The question of sending and receiving ambassadors, under the ex-
isting authorization of the Constitution and the Statutes, bus on several
occasions had more or less formal consideration, but I cannot find that
at any time the benefits attending a higher grade of ceremonial treat-
ment have been deemed to outweigh the inconveniences which, in our
simple social democracy, might attend the reception in this country of
an extraordinarily foreign privileged class.

" It seems hardly necessary to point out in detail considerations which
will doubtless readily suggest themselves to your discernment.

" 1 infer from your statement that the position of the United States
minister in the order of precedence, especially after a change in the
mission, when the newcomer necessarily falls to the foot of the list, may
entail delay in obtaining access to the secretary of foreign attairs in the
ordinary transaction of business. This is regulated in Washington and
in several other capitals by the adoption of the rule dettir priori, with
entire acceptability.

"In 1871, when Mr. George Bancroft was minister ot tlir riiited
States at Berlin, the question of his yieldijig the pas at the foreign of-
fice in everyday intercourse to representatives of higher grade or longer
residence came up for consideration. I inclose transcript of a dispatch
from Mr. Bancroft, reporting the rule then adopted by rrincc von Bis-
marck."

Mr. Bayard, Sec. of State, to Mr. Phelps, July 2, 1885. MSS. Inst., Gr. Brit.

The rule adopted by Prince von Bismarck, as reported in Mr. Ban-
croft's dispatch of January 20, 1872, is as follows:

" The chief of a mission who arrives first [at the Foreign Office] is
first admitted, be his rank that of ambassador, minister or charge."

"For the sake of convenience and uniformity in determining the rel-
ative rank and precedence of diplomatic rejireseutatives, the Depart-

S. Mis. 162— Vol. i 40 ^25

§ 88.] DIPLOMATIC AGENTS. [CHAP. IV.

ment of State has adopted and prescribed the seven rules of the con-
gress of Vienna, found in the protocol of the session of March 9, 1815,
and the supplementarv or eighth rule of the congress of Aix-la-Cha-
pelle of November 21, 1818. They are as follows :

" ' In order to })reveut the inconveniences which have frequently oc-
curred, and which might again arise, from claims of precedence among
different diijlomatic agents, the plenipotentiaries of the powers who
signed the treaty of Paris have agreed on the following articles, and
they think it their duty to invite the plenipotentiaries of other crowned
heads to adopt the same regulations :

"'Article I. Diplomatic agents are divided into three classes : That
of embassadors, legates, or nuncios ; that of envoys, ministers, or other
persons accredited to sovereigns ; that of charges d'affaires accredited
to ministers for foreign affairs.

" 'Art. II. Embassadors, legates, or nuncios only have the represent-
ative character.

"'Art. III. Diplomatic agents on an extraordinary mission have not,
on that account, any superiority of rank.

" 'Art. IV. Diplomatic agents shall take precedence in their respect-
ive classes according to the date of the official notification of their
arrival. The present regulation shall not cause any innovation with
regard to the representative of the Pope.

" 'Art. V. A uniform mode shall be determined in each state for the
reception of diplomatic agents of each class.

'' 'Art. VI, Relations of consanguinity or of family alliance between
courts confer no precedence on their diplomatic agents. The same rule
also applies to political alliances.

" 'Art. VII. In acts ( r treaties between several powers which grant
alternate precedence, the order which is to be observed in the signa-
tures shall be decided by lot between the ministers.

" 'Art. VIII. It is agreed that ministers resident accredited to them
shall form, with respect to their precedence, an intermediate class be-
tween ministers of the second class and charges d'affaires.'

" The representatives of the United States are of the second, the
intermediate, and the third classes, as foUows :

"A. Envoys extraordinary and ministers plenipotentiary. Special
commissionecs, when styled as having the rank of envoy extraordinary
and minister plenipotentiary.

" B. Ministers resident.

"These grades of representatives are accredited by the President.

" C. Charges d'affaires, commissioned by the President as such, and
accredited by the Secretary of State to the minister for foreign affairs
of the Government to whicdi they are sent.

"D. Charges d'affaires ad interim. These are in most cases secreta-
ries of legation, who, ex officio, act as temporary chiefs of mission in the
absence of the minister, and need no special letter of credence. In the
absence of a secretary of legation, the Secretary of State may designate
any competent person to act ad interim, in which case he is specifically
accredited by letter to the minister for foreign affairs.

" When the office of consul-general is added to that of minister resi-
dent, charge d'affaires, or secretary of legation, the diplomatic rank is
regarded as superior to the consular rank. The officer, however, will
follow the Consular Eegulations in regard to his consular duties and
official accounts, keeping correspondence in one capacity separate from

626

CHAP. IV.] DIPLOMATIC GRADES. [§ 88.

coirespoudence in the other. The allowance for rent in such coiul)iiictl
offices is, as a rule, based upon the entire salary."

Printed Pers. Inst., Dip. Agents, 1885.

The expression " ambassadors and other i)ul)lic ministers," in the
Constitution, must be understood as comprehending all offi(;ers having
diplomatic functions, whatever their title or designation.

7 Op., 186, Cusliing, 1855.

The commissioner of the United States in China is a diplomatic offi-
cer by the law of nations, and a judicial officer by treaty and statute.
Ibid.

" With reference to diplomatic rank, I only heard last night for the
first time that the Duke of Sutherland had, some time ago, addressed
a formal remonstrance to Palmerston against foreign ministers (not
ambassadors) having place given them at the palace (which means going
out to dinner over himself et suos pares), a most extraordinary thing for
a sensible man to have done, especially in such high favor as his wife
and her whole family are. He got for answer that Her Majesty exer-
cised her own pleasure in this respect in her own palace. The rule
always has been that ambassadors (who rejjresent the persons of their
sovereigns) have precedence of everybody ; ministers, who are only
agents, have not ; but the Queen, it appears, has given the pas to min-
isters plenipotentiaries, as well as to ambassadors, and ordered them
to go out at her dinners before her own subjects of the highest rank."

In a note it is said to have been '< afterward settled by Her Majesty
that foreign ministers should take precedence a/fer dukes a nd before
marquesses."

Greville's Mem., 2d series, Mar. 29, 1860. As to precedence sociallj-, see infra,
§ 107a.

"At very many foreign offices the rule ' first come first served ' is not
observed ; but an envoy or a minister, though he may have been wait-
ing hours in the ante-room for an important affair, must give place to
an ambassador who has come in at the moment ; and at Constantinople
it is even expected that, should a minister be in conversation with the
minister of foreign aftairs or the grand vizier, he should withdraw and
wait whenever an ambassador may be announced. In some countries
a different rule is observed. In Russia it has been for many years the
custom for the minister to receive tlie foreign representatives in the order
in which they arrive at his office, without regard to their rank. This rule
was brought into force at Berlin, owing to a personal dispute between
Mr. Bancroft, onr minister, and the British ambassador. iMr. Bancroft,
after having waited a long time for an audience, was on one occasion
obliged to yield to the British ambassador, who had that moment
arrived. As the ambassador was personally disagreeable to the ehan-
cellor, and Mr. Bancroft was a friend of his, a representation of the
injustice done to the United States and its representative brought
about a change of rule."

Schuyler'.s Am. Diplom., 11:5. ^

Mr. Schuyler (American Diplomacy, 114 .//',) argues with iiuieh ear-
nestness for the appointment, if not of ambassadors, at least of diplomatic
agents of uniformly high grade.

627

§§ 88a, 89.1 DIPLOMATIC agents. [chap. IV.

XIII. CITIZENS OF COUNTRY OF RECEPTION NOT ACCEPTABLE.

§ 88a.

It is considered by the Government not advisable to receive a citizen
of the United States as the permanent diplomatic representative of a
foreign power. It would be otherwise as to special purposes not in-
volving continuous abode in the country.

Mr. Fish, Sec. of State, to Mr. Squier, Mar. 5, 1870. MSS. Notes, Honduras.

" This Government objects to receiving a citizen of the United States
as a diplomatic representative of a foreign power. Such citizens, how-
ever, are frequently recognized as consular officers of other nations, and
this policy is not known to have hitherto occasioned any inconven-
ience."

Mr. Evarfs, Sec. of State, to Mr. Logan, Sept. 19, 1879. MSS. Inst., Cent. Am.

"Although tbe usage of diplomatic intercourse between nations is
averse to the acceptance, in the representative capacity, of a ])er.s()n
who, while native-born in the country which sends him, has yet acquired
lawful status as a citizen by naturalization of the country to which lie
is sent, as is understood to be the case with your worthy self, I am not
dis[»osed to interpose any technical obstacle, however sound, to the
immediate renewal of diplomatic relations with Venezuela, and it will
give me much pleasure to receive from your hands the original letters
of credence you bear, at such time to-morrow, the 21st instant, between
12 and 3 o'clock, as may be most convenient to you."

Mr. Evarts, Sec. of State, to Mr. Camacho, Apr. 20, 1880. MSS. Notes, Venez.

XIV. DIPLOMATIC CORRESPONDENCE CONFIDENTIAL, EXCEPT BY
ORDER OF DEPARTMENT.

§89.

" No ground of support for the Executive will ever be so sure as a
complete knowledge of their proceedings by the people, and it is only
in cases where the public good would be injured, and because it would
be injured, that proceedings should be secret. In such cases it is the
duty of the Executive to sacrifice their personal interests (which would
be promoted by publicity) to the public interests."

Mr. Jefferson. Sec. of State, to the President, Dec. 2, 1793. 4 Jeff. Works, 89.

The publication in the newspapers by a foreign minister in the United
States of an official letter to the Secretary of State is an improper act,
which will justify alike publication by the Secretary of his reply.

Mr. Pickering, Sec. of State, to Mr. Pinckney, Nov. 5, 1796. MSS. Inst, Min-
isters.
628

CHAP. IV.] ISATUKE OF CORRESPONDENCE. [§ 89.

For instaucesofthepublicat ion ofcoiiliovcr.sialdiploiiiiiticuotes before
thoy had beeu received by tlie ])ar(ies to wliom tliev \vei<' ad<lressed, see
11 J. Q. Adairis' Mem., ;i(i().

As to touG of correspondence, sec! infra, v^ 107.

The piiblicatiou, by a foreign iiiiuisster to the United States, ''of bis
correspondence with the Department withont the authority of his Gov-
ernment, is believed to be unexamj)]ed in the history of diplomacy and
not decorous to the United States.''

Mr. Forsyth, Sec. of State, to Mr. Ellis, Dae. !M8:}(;. MSS. Inst., Ministers.
As to Mr. Webster's criticism ou the action of Mr. Cass, in reference to jMihiiea-
tiou of otYicial action, see (i Webster's Works, 383.

By the rules of the Department papers connected with i)endinu (li])l<)
matic negotiations cannot be made public unless the (locuments are
called for by Congress with the usual limitations.

Mr. Marcy, Sec. of State, to Mr. McKeon, Feb. 8, 1854. MSS. Doni. Let.

" The cipher now used by this Department has been used for the
last forty years at least, and is framed upon a system which is consid-
ered to render it entirely inscrutable to any one not having the key.
No doubt offers of other systems have often been made to the Dei)art-
ment since the one now in use was adoi)ted. Indeed, the chief clerk,
who has been an officer of the Department for about twenty-five years,
informs me that such offers have averaged at least four a year within-
that time."

Mr. Marcy, Sec. of State, to Mr. Breckenridge, Dec. 22, 1853. MSS. Dom. Let.

" Your idea of imx)roving our foreign diplomacy by having each min-
ister a])prised of the principal objects pursuing at every <*onrt is excel-
lent. 1 urged something analogous to it upon Mr. Forsyth, while I was
at St. Petersburg, and I pressed it uj)on Mr. Webster when Secretary of
State. It is the great practical advantage enjoyed by the diplomats of
Russia. It])roducesa harmony of action and inculeai'wu that, in a long
run, tells con(;lusively. Mr. Webster's difficulty was in the great labor
which it must throw upon somebody in the Department already over-
taxed. How that may be, 1 can't pretend to say, but if there be any use
at all in having missions dotted over Europe, they might as well be
made to co-operate in the general policy of the Government as run the
risk of impeding it by a want of information from the fountain-head."

Mr. Dallas to Mr. Cass,' Sec. of State, Oct. 13, 1H57. 1 Dallas, Letters from Lon-
don, 317.

Communications to the Government of the United States by its for-
eign ministers are so far privileged that, though published by order of
Congress, the Government cannot sanction criticisms of them by other
foreign powers.

Mr. Fish, Sec. of State, to Mr. Jay, July 11, 1870. MSS. Inst.. Austria.

"The Departtnent gives to the consideration and ])reparation for
publication of the dispatches of its agents abroad every attention, with
the object of guarding against the publication of their personal views,

629

^S 89.] DIPLOMATIC AGENTS. [CHAP. IV.

which might, if known, expose them to criticism or censure in the land
of their official residence. In an examination of the blue books of other
Governments it is believed that far more care is here exercised in this
respect than in other countries. It is, of course, impossible to prevent
malicious or honestly mistaken perversion of such publication by out-
side parties. * * *

" If the propriety of making such matters public in due time be left
to the discretion of the Secretary of State, it is, indeed, possible that
Ills views as to what parts of such communications may or may not be
uuobnoxious to adverse criticism may differ from those of the writer.
The latter being brought into direct contact with the foreign adverse
elements surrounding him, is naturally often better qualified to judge
of what may be liable to be used by unfair partisanship to his discredit.
Fully aware of this, the Department always gives the most considerate
attention to any iutimation its agents may convey that their dispatches
are to be deemed confidential, and it rarely happens that public inter-
ests are so grave as to override such intimations."

Mr. Davis, Acting Sec. of State, to Mr. Sargent, May 23, 1883. MSS. Inst.,
Germ.

The publication of diplomatic correspondence in its archives is a
matter at the discretion of each particular Government, and for a Gov-
ernment to publish at its discretion letters to it from foreign ministers
is a question for its exclusive determination.

Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, Aug. 2o, 1883. MSS. Inst.,
Mex.

" The attention of diplomatic agents is especially called to the provis-
ion of law by which they are forbidden to correspond^ in regard to the
public affairs of any foreign Government or in regard to any matter
which may be a subject of official correspondence or discussion with
the Government to which they are accredited, with any newspaper or
other periodical, or with anv person other than the proper officers of
the United States."

Printed Pers. Inst., Dip. Agents, 1885.

"Among the most important general duties of a diplomatic represent-
ative of the United States is that of transmitting to his own Govern-
ment accurate information concerning the policy and views of that to
which he is accredited, in its important relations with other powers. To
gain this information requires steady and impartial observation, a free
though cautious correspondence with other agents of the United States
abroad, and friendly social relations with the members of the diplo-
matic body at the place of his residence.

" In their regular correspondence with the Department, diplomatic
representatives of the United States will transmit early copies of all
official reports and such information relating to the Government,
finances, commerce, arts, sciences, agriculture, manufactures, mining,
tariff's, taxation, population, laws, judicial statistics, and to the condi-
tion of the countries where they reside, as may be useful. In dispatches

630

CHAP. IV.] NATURE OF COlUUiyPONDENCE. [§ 89.

communicating such informatioD, however, political affairs should not
be referred to, but should be reserved for separate comniuiiicatioiis.
Books of travel, history, and all such as relate to matters of political
importance, maps published by authority of the state or distinj^'uished
by extraordinary reputation, and new publications of useful discoveries
and inventions, will always be acceptable acquisitions to this Depart-
ment. Expenditures for such purpose should, in all cases, form a sepa-
rate charge against the Department ; but none should be incurred with-
out its previous exi)ress direction, unless in a case of absolute necessity.

" With the exception of the correspondence with the Treasury De-
partment respecting accounts, and such other correspondence as special
provisions of law or instructions of this Department may require, no
correspondence will be held by diplomatic or consular representatives
of this Government with any Department other than the Department of
State. This injunction is especially applicable to communications to or
from subordinates of other Departments. This rule is, however, not
intended to prohibit a diplomatic agent from answering any reasonable
inquiry of an officer of another Department unless the inquiry shall have
been referred to the Department oi State, but he may, if circumstances
permit, answer such inquiries without awaiting special instructions;
and in so doing he should invariably send his reply, unsealed and
accompanied by a copy for the files, to the Secretary of State, who will
decide whether, and how, it shall be forwarded to the person addressed,

" Drafts of correspondence sent out should not be allowed to accu-
mulate, but should be destroyed as soon as accurately transcribed in
the proper record books.

" It is the particular desire of the Department that no diplomatic
agent, or any officer of the legation, should retain or carry away with
him drafts or copies of his official correspondence. Obedience to this
request is enjoined, inasmuch as it has sometimes hapi)ened, and may
at any time happen, that on the death of the possessor of such co})ies,
they pass into the hands of others not so scrupulously observant of their
con tidential character.

" Under no circumstances should any public or official paper be pub-
lished without the express consent of the Department of State.

" Voluntary recourse to private letters to the Secretary of State or
to officers of the Department of State, on topics relating to the official
business of the legation, is discouraged.

"It is considered best that all communications of diplomatic officers
to the Department ot State should be in the form of regular dispatches.
Where the whole dispatch appears to the writer to be necessarily of a
reserved or secret character, it should be consjiicuously marked as
'Confidential.' Where one or more i)aragraphs of a dispatch seem to
require any precaution against undue publicity, a red line may be drawn
to mark them and the word "confidential" plainly written in the mar-
gin. The Secretary of State, however, reserves the ultuuate right to
decide whether the suggested reserve is necessary in the public interest."

ma.

"Even with all the care that can be exercised, dispatches are not'
infrequently published which get their writers into trouble. It may be
remembered, for instance, that the late ^h: Marsh became involved in
an annoying difficulty in Italy on account of the publication of a sen-
tence (which he had\wen written in cipher) in one of his confidential
dispatches, questioning the sanity of the King. Of still more recent

631

§ 89a.] DIPLOMATIC AGENTS. [CHAP. IV.

date is the ditficultv with Germany, arisino- from the publication of a
dispatch of onr minister on the pork question, which resulted ultimately
in his recall, disguised under the name of transfer."

Schuyler's Am. Diplom., o4.

(1) Confined to official business.

§ 89a.

The judiciary alone are competent to determine most questions of
law in the United States, and the Executive will decline to give an
opinion as to such questions when appealed to by a foreign sovereign
or his minister.

Mr. Jefferson, Sec. of State, to the minister of France, Mar. 2J, 1793. MSS.
Notes, For. Leg. To same effect, see Mr. Jefferson to Mr. Hammond, Apr.
18, 1793. MSS. Notes, For. Leg.

" It is not competent for the Government of the United States to inter-
fere with the legislation of the respective States in relation to the prop-
erty of foreigners dying ab intestato^ or in regard to inheritances of any
kind, nor has Congress authority, under the Constitution, to pass a gen-
eral law, as you seem to suppose, upon the subject."

Mr. Marcy, Sec. of State, to Mr. Fay, June 19, 1854. MSS. Inst., Switz.

"There has for many years been established in this Department a
rule which inhibits the Secretary of State from giving letters of introduc-
tion, circular or otherwise, for persons going abroad, to the ministers
or consuls of the United States."

Mr. Seward, Sec. of State, to Mr. Spencer, June 20, 1863. MSS. Dom. Let.

" We receive from all monarchical states letters announcing the births
and deaths of persons connected nearly with the throne, and we respond
to them in the spirit of friendship and in terms of courtesy. On the
contrary, on our part, no signal incidents or melancholy casualties
affecting the Chief Magistrate or other functionaries of the Eepublic
are ever ofiicially announced by us to foreign states. While we allow
to foreign states the unrestrained indulgence of these peculiar tastes,
we carefnlly practice our own. This is nothing more than the courtesy
of private life extended into the intercoujise between nations."

Mr. Seward, Sec. of State, to Mr. Webb, July 24, 1-G5. MSS. Inst., Brazil.

" It is the long-established practice of this Department to decline
giving advice upon a hypothetical case arising out of our foreign rela
tions."

Mr. Fish, Sec. of State, to Mr. Harriman, Apr. 27, 1870. MSS. Dom. Let.

"The Department, by a new regulation, has ceased to give personal
letters of introduction to its officers abroad, except in special cases
where they may be necessary to the conduct of the public business."

Mr. Blaiue, Sec. of State, to Mr. Morse, Mar. 24, 1881. MSS. Dom. Let.
632

CHAP. I V.J TO ACT UNDER INSTRUCTIONS. [§§ 896, !K).

•• The inactice of grantiug general introductory letters to farilitiite
travel will be discontinued."

Circular, Mr. Blaine, Sec. of State, Apr. 25, 1881. MSS. Inst., Arg. Rep.

(2) Usually in writing.

§ 89&.

The misunderstandings likely to result from reliance on oral cominu-
nicationa between Secretaries of State and foreign ministers am noticed,
though with his usual sui)pressed sarcasm, in a letter from Mr. (Jannnig
to Mr. Pinkney, then minister at London, September 23, 1808.

3 Am. St. Pap. (For. Rel.), 230. Mr. Piukuey's reply is given in same work, 233.

On October 9, 1809, Mr. Robert Smith, then Secretary of State, pro-
posed to Mr. Jiickson, British minister at Washington, that their <'()i le-
spondence should be in writing, and on this being objected to l)y .Mr.
Jackson, Mr. Smith, on October 19, cited the similar ])ropositioM pr«'-
vionsly made by Mr. Canning to Mr. Pinkney. The position that im-
portant diplomatic correspondence is to be in writing is reiterated by
Lord Wellesley in an interview with Mr. J. S. Smith, charge d'atiaiies
of the United States at London, on June 16, 1811,

Mr. J. S. Smith to the Sec. of State, June 16, 1811. MSS. Dispatches Gr. Brit.
3 Am. St. Pap. (For. Rel.), 421. As to the correspoTulence with Mr. Jackson,
and his subsequent recall, see supra, ^ 84 ; infra, 'S 107.

" No foreign Government or its representative can take just otlense
at anything which an officer of this Government may say in his private
capacity. OflBcial communications only are to be regarded as indicating
the sentiments and views of the Government of the United States."

Mr. Webster, Sec. of State, to Mr. McCurdy, Jan. 8, 1852. MSS. Inst. Austria.

Senate Ex. Doc. No. 92, 32d Cong., 1st sess.
That official communications must be to the Secretary, see supra, $ 79.
As to form of conducting business, see infra, ^ 107.

" In connection with your dispatch permit me to offer you a word of
caution with regard to cipher telegrams. You should never give both
the cipher and the text, as in the present instance. The latter i.s all
that is requisite. * * * Such telegrams should either be i>arai)Iirased
or their import conveyed in a written note, in order that no clue what-
ever to the Department's cipher may be obtained."

Mr. Bayard, Sec. of State, to Mr. Morgan, May 26, 1886. MSS. Inst., Mex.

XV. DIPLOMATIC AGENTS TO ACT UNDER INSTRUCTIONS.

§90.
For personal instructions, see § 89.
A minister, unless in an extraordinary case of an indignity offered to
him in his character as an indivi<'ual, or as a minister, cannot, without
the authority of his Government, threaten to break oft' diplomatic inter-
course with the sovereign to whom he is sent.

Mr. Marcy, Sec. of State, to Mr. Jackson, Apr. 8, 1856. MSS. In.st., Austria.

633

§ 90.] DIPLOMATIC AGENTS. [CHAP. IV.

When war was carried on between South American countries in which
we were represented by resident ministers, and in whose waters we had
ships of war, watching our interests, it was held ''inconvenient to give
specific instructions for the Government of either its (our) political rep-
resentatives or its naval agents in regard to many possible contingen-
cies. Powers concerning political questions distinguished from naval
affairs are intrusted to the care of the ministers of the United States ;
and the President's instructions are communicated through this Depart-
ment. Responsibilities of a peculiar character are devolved upon the
commander of the squadron ; and the President's instructions are con-
veyed through the Navy Department. * * * in the absence ot
instructions, the agents of the two classes, if practicable, will confer
together and agree as to any unforeseen emergencies which may arise,
and in regard to which no specific instructions for the common direc-
tion of both may be given by the President."

Mr. Seward, Sec. of State, to Mr. Asbotlj, May 18, 1867. MSS. luat., Arg. Rep.

" Diplomatic agreements, between agents of foreign powers, hastily
gotten up in a foreign country, under the pressure of revolutionary
dangers, may be entirely erroneous in their objects, as they must be
incomplete in form, and unreliable for want of adequate authority.
Moreover, they unavoidably tend to produce international jealousies
and conflicts. You will, therefore, carefully abstain from entering into
any such negotiations, except in extreme cases, to be immediately re-
ported to this Department."

Mr. Seward, Sec. of State, to Mr. Pruyn, Aug. 22, 1868. MSS. Inst., Venez. See
infra, ? 102.

The inconvenience of disagreement between a diplomatic agent in a
foreign land and the commander of our naval forces " is less than the
inconveniences which must result from giving authority to a minister
in one state to control the proceedings of a fleet of whose condition he
is not necessarily well informed, and whose prescribed services are re-
quired to be performed not only in the vicinity of its minister, but also
in distant fields over which he Las no supervision. Zi^or would it be
more expedient to give a general authority to the commanding officer
of a squadron to control or supersede the proceedings of political repre-
sentatives of the United States in the several states which he might
have occasion to visit."

Mr. Seward, Sec. of State, to Mr. Asboth, Maj- 18, 1867. MSS. lust., Arg. Eep.
As to Mr. Gallatiu'a complaints of the rigidity of his iustructions, see letters to Mr.

J. Q. Adams, 2 Gallatin's Writings. See also Mr. Webster's letters to Mr.

Cass, Nov. 14, 1842; MSS. Inst., France; (5 Webster's Works, 3G9.
As to Mr. Jefferson's withdrawalof treaty with England by Messrs. Monroe and

Pinkncy, in consequence of non-conformity with instrnctions, see infra,

§ 1506. Monroe Pap., Dept. of State.

634

CHAP. IV.] SOLE ORGANS OF THEIR NATION. [§91.

XVI. COMMUNICATIONS FROM FOUEIGNEUS ONLY TO BE RECEIVED
TIIROCGH DIPLOMATIC REPRESENTATIVES.

S91.

That self-constituted missions to foreign states are illegal, see infrn, $ 109.

Geueral Washington, when President, declined to receive Messrs.
Talleyrand, Beaumetz, and Liancourt, who were then refugees from
France, on the ground that " the French Republic would have learnt
with disgust that they had been received by the President. He having
resolved not to receive them, I held it to be my duty 'to do violence to
uiy individual regard for their characters by merging it in political con-
siderations."

Mr. Randolph, Sec. of State, to Mr. Pinckney, Dec. 23, 1794. MSS. Inst., Min-
isters. They had letters of introduction from Messrs. Pinckney and Jay.

The Department of State can receive no communication from sub
jects of another country on international matters, except through the
minister of such country.

Mr. Monroe, Sec. of State, to Admiral Cochrane, Apr. 5, 1815. MSS. Notes,
For. Leg.

" Several days ago I received information through a confidential chan-
nel that Joseph Bonaparte, with several companions, had arrived incog.
at New York. * * * And yesterday 1 received the further infor-,
mation that he was on his way, accompanied by Lewis, to report himself
to me personally, still under this disguise. * * * Whatever motives
may have produced this step, the palpable impropriety of it, especially
as its success would involve my participation in a clandestine transac-
tion, determined me at once to guard against it. I have accordingly
written to Mr. Rush to have the travelers diverted from their purpose
on their arrival at Washington."

Mr, Madison, President, unofficial, to Mr. Monroe, Sec. of State, Montpelier,
Sept. 12, 181.'). Monroe Pap., Dept. of State.

" To have come at any time to the seat of your jiublic residence with
the ulterior view of a personal visit, without a ])revious sanction derived
through the usual channel, might have been thought not entirely re-
spectful, if prudent. But so to invade the sanctity of your domestic
retreat really looks to me, independent of all other considerations, as
scarcely less than an outrage. * * * I reinembei- that when Talh\v-
rand was in Philadelphia, as ex-bishop of Antun, General Washing-
ton declined being visited bj^ him, although he made known a wish to
wait on him."

Mr. Rush, Atty. Geu., to Mr. Madisou, President, (uuotticial), Scid, 17. IHl.'t.
Monroe Pap., Dept. of State. See, as to the reception of Kossuth, supra, ■^ 48.

"Although it is usual for this Department to forward letters to per-
sons abroad, which may be sent hither by members of Congress for
that purpose, the punctilio required in Europe in communication with

636

§ 91.] DIPLOMATIC AGENTS. [CHAP. IV.

crowned heads renders it necessary to make letters to sucli persouages
an exception. The rnle there is that no communication intended tor
the sovereign, even a letter accrediting a foreigu minister, can be pre-
sented to the person to whom it is addressed, unless a copy shall pre-
viously be communicated to the proper minister of the sovereign. The
reason for this rule is iTuderstood to be to prevent any letters of an
improper character from being received by the sovereign."

Mr. Seward, Sec. of State, to Mr. Eice, July 16, 1861. MSS. Dom. Let.

No officer, civil, military, or naval, can properly carry on an official
correspondence with a foreign Government, except through the Depart-
ment of State, or its diplomatic representative at the seat of such Gov-
ernment.

Mr. Fish, Sec. of State, to Mr. Wines, Jan. 25, 1872. MSS. Doin. Let.

" In reply, I am directed by the Secretary of State to inform you
that the usages of foreign intercourse require that communications
from citizens or subjects of foreign Governments to the President
should be addressed through the minister of the nation of which the
writer is a subject or citizen. Moreover, it is not the province of the
executive branch of this Government, as a general rule, to give atten-
tion to a claim or interest involving private rights only."

Mr. Hale, Asst. Sec. of State, to Mr. Kuhlmann, May 21, 1«72. MSS. Dom. Let.

A foreigner abroad, desiring to communicate with this Government,
must do so through the accredited representative of his Government at
Washington.

Mr. Fish, Sec. of State, to Mr. Mantilla, Feb. 16, 1875. MSS. Notes, Spain.

" Where addresses were to be presented on behalf of the jjeople, or
a body of the people, of a foreign country, it was usual that an appli-
cation should be made through the foreigu minister accredited to the
United States, and, in any event, that the minister should be consulted,
and the contemplated proceeding prove acceptable to him."

Mr. Cadwalader, Acting Sec. of State, to Messrs. Parnell and Power, Oct. 19,
1876. MSS. Dom. Let.

On October 11, 1876, Mr. Parnell and Mr. O'Connor Power, members
of the British Parliament, " sent their cards to the President, at his
hotel, when on a visit to New York, and, being admitted, requested an
opportunity to present an address on the occurrence of the Centennial
with which they stated they were charged ; and the President there-
upon replied that he would shortly be in Washington when the matter
might be disposed of. * * * They were informed (on October 17,
1876,) by a note that before they could be so received, it would be neces-
sary that they should submit the address for approval to the Depart-
ment of State. At this date the address appeared in the public prints.

" Upon the 18th of October, a communication was received at this
636

CHAP. IV.] SOLE ORGANS OF THEIR NATION. [§91-

Department, signed by these gentlemen, asking an opportunity to pre-
sent the address, and shortly after, and before the address had been
examined, they called upon Mr. Cadwalader, then Acting Secretary of
State in my absence, stating the object of their mission. Their atten-
tion was called to the fact that the Department of State could not
properly act in such a matter unless the address had been submitted to
the British minister. They stated their unwillingness to do so directly,
but were understood to acquiesce entirely in the propriety of its being
submitted by the Department to Her Majesty's representative.

"A copy of their note of October 17, with the address, was there-
upon immediately sent to Sir Edward Thornton, for his perusal, who
replied ui)on the same day that it would have aftbrded him pleasure to
have asked permission to present these gentlemen to the President,
had they applied to him for that purpose as was usual; but with regard
to the address, that it contained such reflections on the conduct of Ilcr
Majesty's Government that he should not feel justified in taking part in
its presentation without express instructions from his Government to
do so.

" Mr. O'Connor Power and Mr. Parnell were thereupon informed by
the Acting Secretary of State, by note dated the following day, of the
substance of the reply of the British minister, and that it would not
seem courteous to their own representative or their own Government to
takeany stepsfor a formal presentation of the addressunder such circum-
stances, but that arrangements would gladly be made for their personal
presentation to the President if it were desired.

" Upon the 20th of October, these gentlemen again addressed the De-
partment, renewing the request that the address be received, and suggest-
ing that their representative did not appear ro have any objection to the
language of the address, and that it might still be presented, although
he declined to take part therein ; whereupon they were informed that
as the British minister had based his refusal to take part in any pre-
sentation of the address upon the contents of the address itself, it was
not possible to comply with their wishes.

"No further communication of any kind has taken place upon the
question, and in making to you this statement, and in forwarding to
you, as I do, at your request, a copy of all the correspondence herciu
referred to, including a copy of the proposed address, I have furnished
you with all the information in my possession on the subject.

" The i)osition which the Department was compelled to assume was
that, while it was quite competent to present Mr. O'Connor Power and
Mr. Parnell to the President individually, they being gentlemen of
standing and position at home, and members of the Parliament of llic
United Kingdom, in order that an opportunity might be atibrded them
of expressing, as individuals, the good wishes of the persons at whose
instance they were sent to the United States on the occasion of the
Centennial, at the same time a proper respect for the Government of

637

§ 92.] DIPLOMATIC AGENTS. [CHAP. IV.

Her Majesty, whose subjects they were, and for Her Majesty's repre-
sentative in the United States, rendered it entirely incompetent to take
any steps towards the presentation of an address to the President from
the subjects of another and a friendly power, political in its character,
and the contents of which were deemed by the representative of that
power of such a nature as to compel him to refuse to take any part in
its presentation.

" Your communication requests from me information as to the posi-
tion occupied by this Deijartmeut ' at this moment' on the subject. On
this point I have the honor to say that I am not informed as to the
precise matter before your committee at the present time, nor as to the
similarity between the address which it is proposed now to present with
that which the President was unable to receive.

" If, however, the address is in general form or substance the same,
I may remind you that its reception was refused because Her Majesty's
minister found it objectionable in tone towards his Government, and it
is not likely to be less objectionable when presented in another quarter.''

Mr. Fish, Sec. of State, to Mr. Swann, chairman of the Committee on Foreign
Affairs, House of Representatives, Dec. 29, 1876. MSS. Eeport Book.

XVII. DIPLOMATIC AGENTS PROTECTED FROM PROCESS.

(1) Who are so privileged.

§ 92.

A secretary of the legation is entitled to all the privileges of a min-
ister.

Res. V. De Longchamps, 1 Dall., 111.

And so of an attach^.
U. S. V. Benner, Bald., 234.

A charge d'affaires is privileged from arrest for debt while on his way
to his own country, even though his diplomatic functions have termi-
nated.

Dupont V. Pichon, 4 Dall., 321,

The laws of the United States which i)unish those who violate the
privileges of a foreign minister are equally obligatory on the State
courts as upon those of the United States, and it is equally the duty of
each to quash the proceedings against any one having such privileges.
In such cases the injured party may seek redress in either court against
the aggressor, or he may prosecute in federal courts under federal
statutes (1 Stat., 117 ; K. S., § 4064). And the circuit court cannot
quash proceedings against a public minister pending in a State court ;
638

CHAP. IV.] PROTECTED FROM PROCESS. [§ 92.

nor cau the court in any way interfere with the jurisdiction of tli<- courts
of a State.

Ex parte Cabrera, 1 Wash. C. C, 232.

The certificate of the Secretary of State is the best evidence to prove
the diplomatic character of a person accredited as a nniiister by the
Government of the United States. But parol evidence can be a<lmittcd
to prove the period when a person was considered by the Government
of the United States as a minister.

U. S. r. Liddle, 2 Wash. C. C, 20.5.

Proof that a person assaulted is received and recognized by the
Executive of the United States is conclusive as to his public character,
and that he is entitled to all the immunities of a foreign minister. But
if a foreign minister commits the first assault he forfeits his immunity
so far as to excuse the defendant for returning it.

U. S. V. Ortega, 4 Wash. C. C, 531.

Under the act of April 30, 1790, the arrest of the domestic servant of
a foreign minister is illegal, the process invalid, and persons knowingly
concerned in the arrest liable to prosecution. If, however, the domestic
be an inhabitant of the United States, and shall have contracted debts
prior to his entering into the service of the minister, which are still
unpaid, he is not entitled to the benefit of the act concerning crimes
that gives this immunity, nor shall any person be proceeded against for
such arrest unless the name of the domestic be registered in the Secre-
tary of State's office, and transmitted to the marshal of the district in
which Congress shall reside.
1 Op., 26, Randolph, 1792.

The late governor of Guadaloupe, who had caused a vessel to be
seized and condemned, is not exempt from suit and arrest in the courts
of Pennsylvania whilst here as a prisoner to the British forces on
parole; and if the circumstances attending the seizure were such as
will constitute a defense, they must be pleaded.

If the seizure was an official act — done under color of the powers
vested in him as governor — that will be an answer, as the extent of
his authority could be determined only by the constituted authorities
of his own nation ; but it is not a case for the interposition of the Gov-
ernment.

1 Op., 45, Bradford, 1794.

A foreign naval officer is not privileged from arrest.

1 Op., 49, Bradford, 1794.

A slave or other person subject to the authority and control of another

639

§ 92.] DIPLOMATIC AGENTS. [CHAP. IV.

is uot privileged from being retaken by his or her superior, by engag-
ing in the service of a foreign minister.

1 Op., 141, Lincoln, 1804.

A person accredited as a foreign minister to the United States, but
not received as representing any recognized Government, and against
whom a warrant is issued for unlawful recruiting, has no diplomatic
l^rivilege of right, and whatever privilege is accorded to him by courtesy
should be withdrawn as soon as there shall be cause to believe that he
is engaged in or contemplates any act inconsistent with the laws, the
peace, or the public honor of the United States.

8 Op., 473, Gushing, 1855.

" The result of the President's reflections respecting the right you
(Mr. Cabrera, who claimed exemption from criminal prosecution on
ground of being connected with the Spanish legation) assert of being
exempted from the ordinary jurisdiction of the country, is, that so far
as the diplomatic quality, which is made the support of this privilege,
has been conferred by the envoy of Spain, its attributes must be claimed
only through him ; but if you have been invested bj^ His Catholic
Majesty directly with a iniblic character entitling you to exemption
from the cognizance of our tribunals, all the means in the competency
of the Executive will be used to assure to you the privilege on your
forwarding to me the evidence of your appointment, authenticated by
his said Majesty or his minister of foreign affairs."

Mr. Madison, Sec. of State, to Mr. Cabrera, Oct. 17, 1804. MSS. Dom. Let.

" Far would it be from the intention of the American Government to
draw within its rigorous limits the exemption from ordinary legal proc-
ess of a foreign public officer. It would extend to them a liberal meas-
ure of time, and a full portion of indulgence for the execution of the
trust, and for departure after its completion. But it cannot perceive
the justice of extending these privileges beyond their limits as sanc-
tioned by custom for purposes of injustice and wrong."

Mr. Adams, Sec. of State, to Mr. d'Anduaga, Nov. 2, 1821. MSS. Notes, For.
Leg.

If members of foreign legations are charged with criminal misconduct
in the place of their residence, although they may not be open to crimi-
nal prosecution, the President will demand an explanation so that he
can take proper action.

Mr. Clay, Sec. of State, to Mr. Tacou, Dec. 10, 1828. MSS. Notes, For. Leg.
Same to same, Feb. 7, 1829.

"Xone but citizens of the United States with passports from this

Department, and those who, being citizens, are certainly known to be

entitled to and receive passi)orts from officials abroad authorized by

law to grant them, have properly any right to i:)rotection from our lega-

640

CHAP. IV.] PROTECTED FROM PROCESS. [§ 92.

tioDS and consulates. This privilege, however, may. in special cases,
and for a limited period, be extended to foreigners, and even to Turkish
subjects who become official 'employes,' so long as they remain attached
to the legation and consulates. The custom, it is understood, had its
origin in the difficulty of finding American citizens skilled in the lan-
guages of the East, and the right should therefore^be confined solely to
employes indispensably necessary to our rei)resentatives. it is to be
used with caution in all cases, and does not intend or tolerate the
employment of persons in order to shelter them from justice, or such as
may be justly obnoxious to the Government within whose jurisdiction
the right is exercised."

Mr. Cass, Sec. of State, to Mr. Williams, Feb. 20, 1858. MSS. Inst., Turki-.v.

"The system of employing Turkish subjects (in our legation to
Turkey) in subordinate capacities, although sometimes necessary, is
an encroachment upon international law, as maintained between civil-
ized states, and is unknown in our statutory legislation;" and the Gov-
wnment of the United States will not, except in strong cases, interfere
for the protection of the persons so employed.

Mr. Seward, Sec. of State, to Mr. Morris, Dec. 2:5, 18H7. MSS. Iiist., Turkey.

"The publicists, whose writings are within reach of this Department,
mention no such qualification of the right of employing a courier [viz.,
that the immunities of a courier from a legation do not attach to a person
ai)pointed in the country where the legation is situated]. That right
is regarded by them as unlimited, or as only subject to the discretion of
the legation in the choice of a person for the discharge of the trust.
It is a general principle conferred by public law, which, in the interest
of all nations, ought not to be restricted by municiiial law, but, if nec-
essary or advisable, should be confirmed and facilitated by the latter.
It is true that in some countries municipal enactments are necessary
to secure to tlie members of foreign legations those immunities under
the law of nations to which they are entitled. This Government l)ecame
sensible of this early in its career, for so long ago as the 30th of A] nil,
1790, Congress declared void any process sued out of any court in tiie
United States against any foreign minister or any domestic of his, and
made this and the serving of such process a penal oflense. Although
bearers of dispatches are not expressly mentioned in the statute adverted
to, as its object was to impart to every n)ember of a foreign legation
that immunity to which he may be entitled under the law of nation's,
no doubt is entertained that, if the statute were violated in resj)ect to
any bearer oi' dispatches duly appointed by the head of a foreign leg;«-
tion in this country, the violators would be puuishabl*' undei that
statute.

* * * "No appointment in a foreign country of a i)ersoii as courier
under arrest, or liable to arrest, would be approved by this Dei)artment,

S. Mis. 162— VOL. I 41 ^1

§ 92.] DIPLOMATIC AGENTS. [CHAP. IV,

especially if such appoiutmeut was iu any way intended to screen the
appointee from his liabilities under the municipal law."

Mr. Fish, Sec. of State, to Mr. Freyre, Dec. 17, 1870. MSS. Notes, Peru.
As to bearers of disitatches, see also i^^ 97.

"The executive department of this Government can take no proceed-
ings against persons who have the immunity attached to the diplomatic
character except to ask their own Government to recall them from this
country."

Mr. Fish, Sec. of State, to Mr. Darr, Feb. 2, 1871. MSS. Dom. Let.

"The Department has been fully informed of the origin and progress
of the latter question by Mr. Heap, the experienced and intelligent con-
sul of the United States at Tunis. The opinion which you express, that
it is advisable for the United States to limit to as few as may be abso-
lutely necessary the persons exempt from the local jurisdiction by being
attached to the legation and consulates in Turkey and its dependencies,
is entirely approved by the Department, and has for some time past
been urged upon the officers of the United States in that quarter. It is
understood that formerly there were great abuses in this respect. It
was long before their extent could be ascertained, and it was found
difficult to correct them from the eagerness with which persons sought
the protection, so called, of the United States, and the reluctance oi
ministers and consuls to refuse it. No such immunity should be ex-
tended to any person not legally entitled to it, and then, as you remark,
it should be maintained with firmness in behalf of those upon whom it
may have been deliberately and considerately bestowed."

Mr. Fish, Sec. of State, to Mr. McVeagh, Apr. 18, 1871. MSS. Inst., Turkey.

The true test of privilege from suit of diplomatic representatives
"is whether the exercise of the municipal authority in question is an
unreasonable interference with the freedom with which the functions oi
the diplomatic representatives must be performed." The exemptiou
"does not apply to the contentious jurisdiction which may be conferred
on these (municipal) tribunals by the minister voluntarily making him-
self a party to a suit at law."

Mr. Fish, Sec. of State, to Mr. Jay, July 18, 1874. MSS. Inst., Austria. See also
Mr. Fish to Mr. Jay, Sept. 9, 1874 ; Oct. 26, 1874. Ihid.

As to what is contained under the term "commencing a litigation," see Mr.
Fish to Mr. Jay, Dec. 29, 1874 ; Mr. Fish to Mr. Jay, Jan. 13, 187.S. Hid.

"The tendency of opinion iu regard to immunities of diplomatic agents
is believed to be strongly toward restricting them to whatever may he
indispensable to enable the agents to discharge their duties with con-
venience and safety. The extreme doctrine of immunity, which was
the necessity of an age of barbarism and of the intercourse of uncivilized
nations, has hapjjily yielded to the progress of Christianity and of mod-
ern culture. * * * ^u envoy is not clothed with diplomatic immu-
642

CHAP. IV.] PROTECTED FROM PROCESS. [§ 92.

uity tu enable biui to indulge with impuuity in personal conlioversy, or
to escape liabilities to which he otherwise might be subjected. The
assertion of these immunities should be reserved for more important and
delicate occasions, and should never be made use of when the facts ot
the particular case expose theeuvoy to the suspicion that private inter-
est or a desire to escape personal or pecuniary liability is the motive
which induces it."

Mr. Fish, Sec. of State, to Mr. Jay, Nov. 29, 1S74. MSS. Iiiht., Austria.

Moorish agents employed by United States citizens in the sea-i)oits
of Morocco to do business in the interior, may be, since necessary to such
business, placed under the protection of the United States, and granted
safe conducts as such.

Mr. Evarts, Sec. of State, to Mr. Mathews, May 27, 1878. MSS. Inst., Barb. St.
As to whether a Spaniard, a messengor in the United States legation at Madrid,

can be compelled to military servicti in Si>ain, see Mr. Evarts, Sec. of State,

to Mr. Lowell, Feb. 25, 187<J. MSS. Inst., Spain.

The wife of a secretary of a foreign legation in this country is, while
with him in his official capacity, subject, in respect to her personal.
estate, to the laws of the country he represents.

Mr. Frelinghuysen, Sec. of State, to Mr. Lawrence, Mar. 31, 1883, citing Wheat,
Int. Law, 300-1 (Dana's ed.); 4 Phill. Int. Law, 122-3. MSS. Doni. Let.

" Foreigners in the employ of the United States consulates and their
agencies in Turkey have a right to the protection of the United States
in all matters pertaining to their office and personal safety, but not in
regard to their commercial affairs and private business, for protection
in which they must look to the representatives of the nation of which
they are citizens."

Mr. Bayard, Sec. of State, to Mr. Cox, Nov. 6, 1&85. MSS. Inst., Turkey.

" In a recent case (Taylor v. Best) the true position and liability of a
secretary of legation accredited to the court of England by a foreign
sovereign, and acting in the absence of his ambassador as charge d'af-
faires, were most elaborately discussed; and it was held, first, that such
an official was entitled to all the ])rivileges of an ambassador; second,
that he did not forfeit his privilege by engaging in mercantile ])ursuits
here, and third, that if a foreign minister voluntarily attorns to the
jurisdiction of the courts of this canntry he is estopi)ed from ai)plying
to the courts to stay proceedings on the ground of his i)rivilege; but it
seems to have been doubted, in the course (►f the arguments, whether
the privileges of an ambassador or foreign minister extend to prevent
his being sued in the courts of this country, or only to i)rotect him from
process which may affect the sanctity of his person or his comfort or
dignity. In the course of the case the qirestion as to the liability of a
domestic servant of an ambassador, when engaging in mercantile trans-
actions, being raised, it was hehl that the same privilege does not extend
to them as to the ambassador, for, as Mr. J. Maule said, 'the privilege
is not that of the servant, but of the ambassador ; it is based on the as-

643

§ 93.] DIPLOMATIC AGENTS. [CHAP. ivj

sumption that by the arrest of any of his household retinue his i)er8on£
comfort and state may be affected.'"

Abdy'sKent (2ed.), 121.

"A diplomatic representative pOiSsesses immunity from the criminal'
and civil jurisdiction of the country of his sojourn ; and cannot be sued,
arrested, or punished by the law of that country. IsTeither can he waive
his ])rivilege, for it belongs to his ofBce, not to himself. It is not to be
supposed that any rei)resentative of his country would intentionally
avail himself of this right to evade just obligations incurred either by
himself or the members of his mission.

"A secretary of legation is, according to the admitted principles of
international law, a ' public minister.' His personal privileges, immuui-
ties, domiciliary privileges, and exemptions are generally those of tl;t
minister of whose official household he forms a part.

"The personal immunity of a diplomatic agent extends to his house-
hold, and especially to his secretaries. Generally, his servants share
therein, but this does not always apply when they are citizens or sub-
jects of the country of his sojourn. Cases have arisen where a diplo-
matic agent has' claimed for a native servant exemption from military
service. His right to do so is not clear, and in future the diplomatic
agents of the United States are advised against questioning the right
of the native Government to claim such service from one of its subjects
in his employ. It is to be expected that the claim, if made, will be pre-
sented courteously to the chief of the mission.

"It is customary for a foreign minister to furnish to the local govern-
ment a list of the members of his household, including his hired serv-
ants, with a statement of the age and nationality of each. When this
is requested it should always be given. (See as to asvluin, infra, § 104.)

"In most Mohammedan and Oriental countries, the rights and immu-
nities of extraterritoriality have been secured by treaty to foreign rep-
resentatives, including to some extent consular officers.

"Among the rights of extraterritoriality is that of criminal and civil
jurisdiction, which will be specially' treated under its appropriate head-
ing."

Printed Pers. Inst. Dip. Agents, 188r>.

(2) Illegality of prockss against.
§93.

The entering a public minister's house to serve an execution willl
either be absorbed in the arrest, as being necessarily associated with
it, if that be found criminal, or, if the arrest be admissible, must be
punished, if at all, under the law of nations.
1 Op., 26, Randolph, 1792.*

The President will not interfere with judicial proceedings between
an individual and the commissioner of a foreign nation where the con-
troversy may have a legal trial, unless the suit grew out of acts done
by the commissioner in pursuance of his commission.

1 Op., 81, Lee, 1797.

644

DHAP. IV.] PROTECTED FROM PROCESS. [§ 93.

rf 11 minister violate the laws of the Government to which he 18
Accredited, or otherwise oileud its sovereignty, there is no remedy
except in the manner and form prescribed by international law.

7 Op., 367, Cuahing, 1855.

Any person who executes process on a foreign minister is to be deemed
m officer under section 26 of the act of 1790 (1 Stat., 117; 11. S., § 40G4),
md in such case scienter need not be proved, nor is submission of the
jiinister any defense.

U. S. V. Benner, Baldwin, 234.

" The statutes of the United States provide severe punishments for
ill such violation of the diplomatic immunities of the representatives
3f foreign states, and the courts of the United States, acting in har-
uony with the principles of public law, as recognized by the Govern-
ment, have in more than one instance held that the law does not make
knowledge an ingredient in an offense against the diplomatic iunuuni-
■ies of a minister, and that it is not necessary to supi)ort an indictment
igainst a person who executes a process against such minister, that
:hc defendant should know the person arrested to be a foreign n)in-
ster."

Mr. Fish, Sec. of State, to Mr. de Vaugelas, Dec. 28, 1876. MSS. Notes., France.

Ignorance of the diplomatic immunities of a party arrested does not
protect parties who illegally made such arrest.

Mr. Fisli.Sec. of State, to Mr. Waslibnrne, Jan. 11, 1877. MSS. lust., France.

U. S. V. Benner, supra.
As to privileges of French consuls under treaty, see ibid.

The service of legal process upon a foreign minister is an infringe-
ment of his privilege and an abuse of the process of the court.

Mr. Blaine, Sec. of State, to Governor of Rhode Island, Oct. 31, 1881. MSS.
Dom. Let.

Service of writs on foreign ministers is in contravention of section
4064 Eevised Statutes, and may be a matter for prosecution in fed-
eral courts.

Mr. Frelinghuysen, Sec. of State, to Mr. Brewster, June 28, 1883. MSS. Doiu.
Let. (See 9 Op., Atty. Gen., 7.) Same to same, June 21, 1883.

Eevised Statutes, sections 4063 and 4064, do not impose a penalty on
judges hearing suits in which foreign ministers are defendants, but
simply on parties suing out or enforcing writs of execution against such
ministers.

Mr. Frelinghuysen, Sec. of State, to Mr. Preston, July 10, 1,-83. MSS. Notes.

Hayti.
As to immunity of foreign ministers from process for debt, see Mr. F. W.

Seward, Asst. Sec. of State, to Mr. Devens, Aug. 22, 1878. MSS. Dom. Let.

645

§ 93a.] DIPLOMATIC AGENTS. [CHAP. IV.

General Henderson, Minister from Texas to France (before tlie an-
nexation of Texas), was arrested in New York, on his return from
Prance to Texas, on an alleged debt. The court discharged him fx'om
arrest, and held that the want in his case of a passport made no differ-
ence in the case.

Holbrook v. Henderson, 4 Sandf., 619.

(3) Exemption from criminai. prosecution.

§ 93a.

The prevalent view, so far as concerns civil process, is that the doc-
trine of extraterritoriality does not apply (1) in cases where, from the
nature of the case, no other jurisdiction exists than that in which the
embassy hoids its seat, e. g., suits for real estate ; {'2) in cases where the
ambassador sues, and the claim against him is set up by way of set-
off 5 (3) in cases in which the ambassador voluntarily submits to a hear-
ing before arbitrators, in the same sense in which a sovereign may agree
to an arbitration ; (4) in cases where the ambassador, with the consent
of his Government, submits himself to the jurisdiction ; (5) in cases
where the ambassador is a citizen or subject of the state to which he is
accredited, or when he is at the time in the service of such state ; (6)
in cases where the ambassador engages in trade, and the suit is brought
in respect to such trading engagements. This extraterritoriality ordi-
narily protects the diploujatic agent also from prosecutions for crime;
unless the crime be of a character so outrageous and couspicnous as to
forfeit his privileges, or disturb the peace of the country of his resi-
dence. But even in this case, the better course is to send him home to
his own sovereign, who alone has jurisdiction over him. The privilege
of extraterritoriality no longer gives the ambassador, as was once sup-
posed to be the case, the power to execute penal discipline upon his
subordinates.

Whart. Com. Am. Law., $ 167.

If a minister's crimes be such as to render him amenable to local
jurisdiction, it must be because they forfeit the privileges annexed to
his character; and the minister, by violating the conditions under which
he was received as the representative of a foreign sovereign, has sur-
rendered the immunities granted on those conditions ; or, according to
the true meaning of the original assent, has ceased to be entitled to
them.

Exchange v. McFaddon, 7 Cranch, 116.

" Ministers of the highest grade, in cases of great enormity, are sub-
ject to the penalty of the law, according to the law of nations."
Mr. Monroe, Sec. of State, to Mr. Harris, Dec. 10, 1815.

Early in 1816, Kosloff, the Russian consul at Philadelphia, was arrested
in Philadelphia on the charge of having ravished a girl of twelve years,
who was a servant in his family. He was taken before a justice of the
X)eace in Philadelphia (who by law was not empowered to take bail in
cases of that class), who (a prima facie case being shown) committed
Kosloff to prison to wait trial. A writ of habeas corpus being taken out

646

CHAP. IV.] PROTECTED FROM PR0CES8. [^ 93a.

iiixl day belbic tlie chief Justice of Pcinisvlvaiiia, KoslolT was IikiiihI
over (bail beiiiji;- taken) to answer to the next <-(Hirl. At this court an in-
.lictmenttVn- lape was (bund against liini by the ^land Jury. The district
;iitorney of the United States for lMiiiadeli>liia was instiiictcd b,\ the
Piesident to ^ive his assistance as counsel to ^Ir. Kosh)ir. whicii was
(lone, though the defense was nianaj^vd by other counsel. A motion
\\ as then made by tlie defense to dismiss the indictment on the {ground
i hat the case was exclusively coj^uizable by Federal courts. This motion
\\ as granted lor the reason given. (Com. v. Koslofi", 5. S. an<l It., 545.)
K*ai)e not being then an offense by a statute of the United States, the
Attorney-General of the United States gave an opinion that the Fed-
< r;d courts had not cognizance of tiie ofiense. The Kussian minister at
Washington urged with great earnestness a trial on the merits. This,
however, was impracticable under the circumstances. The Russian
Government took umbrage at what it considered a failure of justice,
and refused to receive Mr. Harris, United States charge, until a due
explanation was made. The above ex})lanation was made in reply by
Mr. Monroe, Secretary of State, in a letter to Mr. Harris, July 31, 181G,
quoted infra.

See further, same to same, Sept. 30, 181(5 ; Mr. Monroe to Mr. J. Q. Adauis, Nov.
2, 1816. MSS. Inst., Ministers.

Mr. Daschkoff subsequently informed the Government that he had
''terminated his mission to the United States by the order of his sov-
ereign," on this account, which was regarded as the more remaikable
fiom the fact that "the Government of Eussia had admitted that a
consul deserves no protection in such a case from the law^ of nations."

Mr. Monroe, Sec. of State, to Mr. Hughes, Nov. 2, 1816 ; to Mr. Piukney, Nov. 16,
1816. MSS. lust.. Ministers. See further Mr. Monroe to Mr. Da.sehkoflF,
Aug. 16, 1816, Sept. 12, 1816; to Couut de Nesselrode, Oct. 2:3, 1816. MSS.
Notes, For. Leg.

" How far ambassadors and public ministers themselves are exepipted
by the law of nations from punishn)ent for crimes of this nature by the
laws of the country in which they reside may perhaps with some be
doubtful; but this is foreign to the present puri)Ose. Consuls, it is
believed, are not exempt from such punishment. This opinion is sup-
posed to be warri^)nttd by the weight of authority in those commenta-
tors on public law whose opinions are alike resi)ected in Europe and
the United States, and by the general adniission and practice of Euro-
pean nations. Consuls are undoubtedly entitled to great resi)ect, as
bearing the commissions of their sovereign, but their duties are of a
commercial nature, and their public character subaltern; neither their
persons nor their domiciles have heretofore beeji i>roteeted. as have
those of ambassadors and other {)ublic ministers.

"Instances are not wanting in which some of them have been brought
within the jurisdiction of our courts. It is not known that it has ever
yet laid the foundation of any charge of a breach of privilege or infringe-
ment of public law on the part of any of the Governments of Europe,
whose commissions these consuls may resitectively have borne. For a
recapitulation of some of these instances, I beg leave to refer you to

647

§ 936.1 DIPLOMATIC AGENTS. [CHAP. IV.

the report made to me by the attorney of the United States at PhiU-
delpbia. I also beg leave to refer you, with the like view, as well as
for au elucidation of other topics connected with this dispatch, to the
opinion at large of that very respectable magistrate, the chief justice
of Pennsylvania, contained in the folio document, and numbered 20.
One of the instances set forth in the attorney's report, and known to
this Department to be authentic, deserves to be particularly adverted
to. It was the case, not of a consul, but of a commissioner of His
Britannic Majesty, under the sixth article of the treaty of amity, com-
merce, and navigation between the United States and Great Britain,
made at London in the year 1794.

"A British subject, clothed with a commission from his King, under
this article (whereby, as it is conceived, he stood upon a footing certainly
not inferior in dignity to a consul),was subjected to a i^rocess issuing from
a court in Philadelphia, and took his trial before a jury on the charge
brought against him. The Government of England did not complain
of the proceeding."

Mr. Monroe, Sec. of State, to Mr. Harris, July 31, 181G. MSS. Inst., Ministers.

If the crime committed affect individuals only, the Government of
the country is to demand his recall; and if his Government refuse to
recall him, he may be expelled by force or brought to trial, as no longer
entitled to the immunities of a minister. If the crime affects the public
safety of the country, its Government may, for urgent cause, either
seize and hold his person till the danger be passed, or expel him from
the country by force; for the safety of the state, which is superior to
other considerations, is not to be periled by overstrained regard for the
privileges of an ambassador.

7 Op., 367, Cashing, 1855.

If the offense be grave, but not such as to compromise the public safety,
the course is to demand the recall of the minister, and meanwhile to refuse
or not all further intercourse with him, according to the circumstances.
For implication in attempts to enlist troops in the United States, it was
held that the President might send his passports to the British minister,
with intimation to leave the countr^^ without delay ; or, in his discre-
tion, adopt the milder course, as President Washington did in the case
of M. Genet, of affording the minister opportunity for explanation
through the Secretary of State ; and then, if his explanation should be
unsatisfactory, to demand his recall.

Ibid.

See further as to dismissal in latter case, supra, $ 84, infra, $ 395.

(4) What attack on a Minister is an international offense.

§ 93ft.

A riot before the house of a foreign consul by a tumultuous assembly
requiring him to give up certain persons supposed to be resident with
648

CHAP. IT,] PROTECTED FROM INDIGNITY. [§ 94.

bim, and iusultiug liiiii witlj improper hiiiguage, is not :iii ofleiiscw iilnri
tlieact of the 30th of April, 1790, which i>re!scril)es th«^ pmiishim-iit '-for
any infraction of the hiw of nations, l)yoflering viokMice to tlie person
of an ambassador or other public mininter.^^
1 Op., 41, Bradford, IT'J-l.

The immunities of the domicil do not extend to an annexed garden.
lOp., 141, Liucolu, 1804.

An indictment charging one with offering violence to tlie person of a
public minister, contrary to the law of nations and the act of Congress
in such case provided, is not a case "affecting ambassadors, other
public ministers, and consuls," within section 2, Article III, of the Con-
stitution.

U. S. V. Ortega, 11 Wheat., 467.

The clause in the Constitution (second section, third article) that the
judicial power of the United States extends to all cases affecting am-
bassadors, other public ministers, and consuls, confers a j)ublic, not a
personal, privilege, and is not waived by an omission to plead it in a
State court of the first instance.
Davis V. Packard, 7 Pet., 276.

The immunity of diplomatic representatives abroad is sanctioned by
public law.

Mr. Fish, Sec. of State, to Mr. Partridge, Dec. 31, 1869. MSS. Inst., Veuez.

XVIII. AND FROM PERSONAL INDIGNITY.

§ 94.

By the municipal law, as well as the law of nations, a foreign minis-
ter is peculiarly protected not only from violence, but also from insult,
such as a libel.

1 Op., 52, Bradford, 1794. See 7 John Adams's Works, 421, 495 ; 10 ibid., [\S.

An ambassador or other representative of one foreign nation residing
in another is entitled to be treated with respect so long as he is per-
mitted to continue in the country to which he is sent, and esi)ecially
ought not to be libeled by any of the citizens. If lie commits any
offense, it belongs, in our country, to the President to take notice of it,
and not to any individual citizen. The President nia\ dismiss liini i.v
desire his recall, or complain to his sovereign and require satisfacti«)n.
1 Op., 71, Lee, 1797.

An affront to an ambassador is just cause for national «lispleasure,
and, if offered by an individual citizen, satisfaction is deman<lablc of
his nation. It is not usual for nations to take serious notice of pub-
lications in one nation containing injurious and defamatory observa-

649

§ 04.] DIPLOMATIC AGENTS. [CHAP. IV.

tions upon tlie other, but it is usual to complaiu of insults to their em
bassadors, and to require the parties to be brouj^'ht to punishment.
Ibid.

The entry into a minister's garden by the agent of the owner of a
slave, and there seizing and carrying away to the owner such slave, is
not such a violation of the domicile of the minister as constitutes a pun-
ishable offense under the crimes act of 1790 (1 Stat., 118; E. S., § 4064).
1 Op., 141, Lincoln, 1804.

For injuries done by private persons to foreign ministers, redress is
to be had through the regular judicial tribunals.
9 Op., 7, Black, It*;")?.

An indictment under the act of 1790 (1 Stat., 118 ; R. S., § 4062) for
offering violence to the iierson of a public minister is not a case " af-
fecting ambassadors or other public ministers and consuls," within the
second section of the third article of the Constitution,"

U. S. r. Ortega, 11 Wheat., 467. See in this case note by Mr. Wheaton on the
general question of jurisdiction over foreign ministers.

The tearing down, in a riot in the city of Philadelphia, in 1802, of the
flag of the Si)anish minister, " with the most aggravating insults," was
held to be cognizable in the State court of Pennsylvania.

Mr. Madison, Sec. of State, to Governor McKcan, May 11, 1802. MSS. Dom.

Let.
For an account of the trial of Wni. Cobbett for libel on the Spanish minister

Yrujo, see 3 Life of Pickering, 396/; Wharton's St. Tr.', 322.
As to other proceedings of Yrujo, see infra, $ 106. Supra, § 84.

The indignities alleged to have been offered in 1809, to Mr. Jackson,
British minister at Washington, are discussed in detail in another sec-
tion, {ififra, §107,) and it is shown that the pretence of such indignities,
set up by that ofiicer, is not sustained in point of fact. The circum-
stances of Mr. Jackson's dismissal are noticed. (Supra, § 84.)

"During Mr. Gallatin's mission at London, in 1827, an incident oc-
curred involving a question of diplomatic privileges, which led to an ex-
])osition of the British views on the rights of embassy. His coachman
was arrested in his stable on a charge of assault, by a warrant from a
magistrate. The subject having been informally brought to the notice
of the foreign oflice, a communication was addressed to the secretary
of the American legation by the under secretary of state, Mr. Back-
house, May 18, 1827, in which he informed Mr. Lawrence of the result of
a reference made by order of Lord Dudley, to the law ofticers of the
Crown. In it it is said that ' the statute of the 7th Anne, chap. 16, has
been considered in all but the penal parts of it nothing more than a
declaration of the law of nations ; and it is held that neither that law,
nor any construction that can properly be put uj^on the statute, extends
TO protect tlie mere servants of ambassadors from arrest upon criminal
charges, although the aml)assador himself, and i)robably those who may
be named in his mission are, by the best opinions, though not by the
uniform practice of this country, exempt from every sort of jn'os-
ecution, criminal and civil. His lordship will take care that the mag-

650

[chap. IV. PROTECTED FROM TAXES AND IMP08TH. [§ 95.

istrates aie ai)i)rised, tliroiigli the pr()i)er chaiiiicl, of llu' disiiitpio-
batioii of His Majesty's Govermneiit of the mode in wliicli the warrant
was executed \u the pieseut instance, and are iuilher informed ol' tlje
expectation of His Majesty's Government that, whenever the servant of
a foreign minister is charged with a misdemeanor, the magistrate shall
take proper measures for apprising the minister, either by i)ersonal com-
munication with him or through the foreign office, of the fact of a
warrant being issued, before any attempt is made to execute it, in order
thitt the minister's convenience may be consulted as to the time and man-
ner in which such warrant shall be put in execution.'

"An official character was given to the preceding communication by
a note from Earl Dndley, secretary of state for foreign affinrs, June
2. 1827, in which he says thatit is only necessary for him to 'contiiin the
statement contained in thei)rivate note of Mr. Backhouse, referred to by
Mr. Gallatin, as to the law and practice of this conntry upon the (pies-
tions of privilege arising out of the arrest of Mr. Gallatin's coachman,
and to supply an omission in that statement, with respect to the (|nes-
tion of the supposed inviolability of the premises occui)ied by a foreign
minister. He is not aware of any instance, since the abolition of sanc-
tuary in England, wiiere it has been held that the prenjises occupied by
an ambassador are entitled to such a lu'ivilege by the law of nations.'

" He adds that courtCvSy requires that their houses should not be en-
tered without ])erraission being first solicited in cases where no urgent
necessity presses for the immediate capture of an offender."

Lawrence's Wheaton (ed. Ib63), 1006, 1007.

" In the case of all offenses against the law, committed in this country,
no arrest can be made, nor ca-n any judicial proceedings be instituted,
except upon complaint sustained by the oath of a credible witness.
The mere allegations in notes of a diplomatic representative, although
they may command the entire confidence of the executive branch of the
Government, are not such proof as the law requires or as the judicial
tribunals of the country can recognize."

Mr. Fish, Sec. of State, to Mr. Mantilla, Sept. 27, 1875. MSS. Notes, Spain.
As to maltreatment of Mr. Washburn, minister to Paraguay, see report of Sec-
retary of the Navy, Feb. 11, 1869, House Ex. Doc. No. 79, 40th Cong., 3d
sess. See also House Ex. Doc. No. 5, 41st Cong., 1st sess. ; Mis. Doc. 8, pt.
2, same sess. (Memorial of Bliss and Masterman), and report thereon. House
Rep. No. 65, 41st Cong., 2d sess.
That the Federal courts have no common-law jurisdiction of libels on foreign
ministers, but that such libels may be prosecuted in State courts, see supra,
$56.

XIX. AND FROM TAXES AND IMPOSTS.

§95.

"All applications to this Departmentfor free entry of articles imported
for the use of ministers and charges d'afifiiires, and which they desire
shall be delivered free of duty, must be made through the Department
of State, accompanied by a bill of lading and by a statement of the
number of packages, and their marks and numbers, with a general

651

§ H5.] DIPLOMATIC AGENTS. [CHAP. IV.

(lesciiptiou of their conteuts, naming the vessel or other vehicle in
which the same were imported, and the person to whom they wish the
delivery to be made. When the request of the minister or charge, with
the bill of lading and statement aforesaid shall have been communi-
cated to this Department by the Secretary of State, instructions will
be given to the collector of the customs to deliver, free of duty, such
packages as may be found to correspond with the bill of lading and state-
ment aforesaid."

Treasury Regulations of 1857, Art. 247, quoted in Mr. Trescot, Acting Sec. ef
State, to Mr. van Limburg, June 29, 1860. MSS. Notes, Netherlands.

That the practice has been to permit ministers of the United States when return-
ing to the United States from abroad to bring in baggage and personal fur-
niture duty free, see Mr. Gallatin to Mr. Clay, Nov. 23, 1815.

The right of exemption from custom-house duties of articles required
for personal use is restricted to the person who is the head of a foreign
mission.

Mr. Fish, Sec. of State, to Mr. Yano, Jan. 9, 1874. MSS. Notes, Japan.

Eesidences of foreign ministers in Berlin not being taxed, there should
be a similar exemption of taxation of residences of German ministers at
Washington, though the better opinion is that such exemption is lim-
ited to heads of missions.

Mr. Fish, Sec. of State, to Mr. Stumm, May 28, 1873. MSS. Notes, Prussia.

" The general usage of nations is to accord the franchise of immunity
from customs duties to all heads of missions, temporary or permanent,
of whatever rank, and that while in some countries, Spain, for instance,
the extent of the privilege is limited (although even there very gener-
ously bestowed), it (the Department) can find no case of its denial to
any chief diplomatic ofiicer save in Russia."

Mr. F. W. Seward, Acting Sec. of State, to Mr. Hoffman, Aug. 21,1879. MSS.
Inst., Russia.

" There is no law on the statute-book prescribing or regulating the
free entry of articles imported by foreign diplomatic officers. That is
entirely a subject within the discretion of the Secretary of the Treasury,
and rests merely on the ascertained fact of reciprocity."

Mr. Brown, Chief Clerk, to Mr. Willamov, June 9, 1880. MSS. Notes, Russia.

" In reply to your letter of the 23d ultimo, I have to say that the rule
observed by this Government with respect to the taxation of property
owned by a foreign Government and occupied as its legation, is to accord
reciprocity in regard to general taxation but not to specially exempt it
from local assessments, such as water rent and the like, unless it were
definitely understood that these taxes would also be exempted by the
foreign Government ujion a piece of property belonging to the United
States and used for a like purpose by our minister. Our diiilomatic
representatives either personally contract for the premises occupied by
theiu and are granted a maximum allowance for rent for that portion
652

[chap. IV. PROTECTED FROM TAXES A>.D IMPOSTS. § D5.

of the premises actually set apart for legation purposes, or else liiey
rent a piece of property to be used exclusively for official business,
charging- therefor in their contingent quarterly accounts as allowed by
the Department.

" When a foreign legation occupies rented property in this country,
the owner of the premises is not exempted from all lawful taxes.

"It is of course impracticable to do more than state the general and
equitable usage prevailing in such matters. The Government of the
United States is not the owner of real estate abroad except at Tangier,
Africa, which is a specially donated property, and the only dill'ereiices to
be noted in the way of leasing or renting property from the general rule
stated above are to be found in China and Japan. In those countries
contracts for legation premises are authorized by act of Congress."
Mr. Bayard, Sec. of State, to Mr. Woolsey, Apr. 15, 1886. MSS. Doiu. Let,

'-A diplomatic representative possesses immunity from the criminal
and civil jurisdiction of the country of his sojourn, and cannot be sued,
arrested, or punished by the law of that country. Neither can he waix e
his privilege, for it belongs to his office, not to himself. It is not to be
supposed that any representative of his country would intentionally
avail himself of this right to evade just obligations, incurred either by
himself or the members of his mission.

"7/", however, a diplomatic agent holds, in such foreign country, real or
personal property, aside from that ivhich pertains to him as a minister, if is
subject to the local laws.

"It is the custom of international intercourse that to a diplomatic;
agent shall be conceded the privilege of importation of effects for his
personal or official use, or for the use of his immediate family, without
payment of duties thereon. The application of this ])rivilege varies in
different countries, but as a rule is restricted to the head of the mission.
It is the dutj' of the agent to acquaint himself with the formalities pre-
scribed in such case by the local law or regulations, and to conform
therewith. The privilege is one of usage and tradition, rather than an
inherent right, and is one which the Government of the United States
gives to the foreign representatives it receives. Where the agent lias
ground to believe that a full measure of reciprocal courtesy is limited
or denied to him abioad, he shouhl refrain from questioning the local
rule on the subject, but await such instructions as the Department of
State may give him after receiving full information as to the circum-
stances.

"The diplomatic i)rivilege of importing goods for personal use is not
accorded to a foreign secretary of legation in the Unitinl States or in any
foreign country, so far as is known.

" In most countries the franchise of importation is accorded to a charg*'
d'affaires ad interim. Where the exception exists the fact should not
be made the occasion of remonstrance or argument wi;h the local (Gov-
ernment without the express directions of the Department of Stal<'.

" Transit free of customs dues is usually conceded by a third state
through whose territories a diplomatic officer passes on his way to or
from his post."

Printed Pers. lust., Dip. Agents, 18H5.

As to status in third country see infra, 697.

653

§ UG.] DIPLOMATIC AGENTS. [CHAP. IV.

XX. PIWPERTY PROTECTED.

§96.

A charge d'affaires of Eussia had a large party at his house, and a
transpaient painting at his window, at which a mob which had collected
took offense ; the defendant fired two pistols at the window, his inten-
tion being to destroy the painting without doing injury to the person of
the minister or of any one. The defendant was indicted for an assault
upon the charg^ d'affaires and for infracting the laws of nations by
ofiering violence to the person of the said minister. It was held that
the law of nations identifies the property of a foreign minister, attached
to his person or in his use, with his person. To insult them is an attack
on the minister and his sovereign, and it appears to have been the
intention of the act of Congress to punish offenses of this kind. But
it was said that to constitute such an offense against a foreign minister
the defendant must have known that the house on which the attack
was made was the domicile of a minister ; otherwise it is only an offense
against the municipal laws of the state.
U. S. V. Hand, 2 Wash. C. C, 435.

The persons and personal effects of foreign ministers, of their fa-
milies and attaches, are exempt from seizure, arrest, or molestation,
both by the law of nations and by act of Congress. A hotel-keeper,
therefore, cannot prevent an attache from removing his personal effects
from the premises ; and any attempt to do so would be punished by the
courts.

5 Op., 69, Toucey, 1849.

It is not within the consti tutional power of the President of the
United States to deliver over to the minister of the Netherlands cer-
tain jewels, detained in the custom-house of IS'ew York, which are
shown to have been stolen from the Princess of Orange, on whose
behalf the minister of the Netherlands makes claim.

Mr. Livingston, Sec. of State, to Mr. Huygena, Aug. o, lp31. MSS. Notes, For.
Leg. See further, same to same. Sept. 6, 1«31.

If, however, the question comes up in the way of libel or other pro-
cedure in the Federal courts, the President will direct such action as
will best conduce to the delivery of the jewels to their rightful owners.
Same to same, Jan. 13, 1632 ; ibid.

A municipal law, giving a landlord a "real right" {droit reSl) over
personal property belonging to the diplomatic agent of a foreign sov-
ereign, entitling the creditor to seize such goods of such diplomatic
agent in his own house, does not abrogate the law of nations so far as
it gives inviolability to such house.

Mr. Le-gar^, Sec. of State, to Mr. Wheaton, June 9, 1843. MSS. Inst., Prussia,
654

CHAP. IV.J FREE TRANSIT AND COMxMUNICATION. [§ 97.

" Immunity from local jurisdictiou extends to the diploniatii; .i^a-ut's
dwelling-bouse and goods, and the archives of the legation. These
cannot be entered and searched, or detained under process of local law,
or by the local authorities."

Printed Pers. Inst., Dip. Agents, 1885.

XXI. FREE TRANSIT AND COMMUNICATION WITH, SECURED.

§ 97.

A diplomatic agent, traveling on his way to the country to wiiich he
is accredited, through a third country, i)ursuing for this purpose a nat-
ural and 1)1 ((per route, is entitled to the same privilege as when travel-
ing through the country to which he is ac(;redited. It may be that
such country is in a state of war with the third power. This does not
destroy his right of transit; but if a convenient route is i)ointed out
to him which will not embarrass an occuj)ying army, he must take this
route, and cannot be i^ermitted to insist on carving out a route of his
own.

Whart. Com. Aui.Law, $ l(i8.

The line of transit may be prescribed by the nation through whose
territory the minister may pass at its option.

Field's Code Int. Law, \S 1:36. See 2 Phil. Int. Law, ld6-189.

" I heartily reprobate the outrage on the British Government in vio-
lating (by a privateer) the seals of its accredited minister to the United
States, and am desirous of taking such notice of it as the respect we
owe, not only to the Government of Great JJritaiii but to ourselves,
demand ; 1 pray you, therefore, to refer the business to the attorney of
the District, in the absence of the Attorney-General, with instructions
to prosecute the persons he may find guilty of any breach of the law
of nations or the land."

Mr. J. Adams, President, to Mr. Pickering, Sec. of State, July 20, 179'.t ; 8 John
Adanjs' Works, 668. See ibid, 658.

A belligerent has no right to stop the i>assage of a minister from a
neutral state to the other belligerent, unless the mission of such minis-
ter be one hostile to the first belligerent.

Mr. J. Q. AilaniH, Sec. of State, to Mr. Brown, Dec. 2:5, 182:5. MSS. lust., Minis-
ters.

" Some looseness of practice has crept in, with reference to passports
of this kind (to bearers of dispatches), of an ininrious tendency. .Orig-
inally given to those actually charge<l with dispatches, they have been
retained for ordinary use after the dispatches have been delivered at
their destination. This circumstance has sometimes given an unreal
character to these passjjorts, which tends to impair their value in the
hands of those entitled to them, besides being obje(;tinnable in othei-
respects."

Mr. Everetr, Sec. of State, to Mr. Maun, Dec. i:?, 1852. MSS. Doui. Let.

655

§ 97.] DIPLOMATIC AGENTS [CHAP. IV.

" With reference to the permission given to the foreign representa-
tives to correspond with their consuls in the ports of the insurgent
states h\ means of vessels-of-war entering their ports, i have to remark
that circumstances have come to the knowledge of this Department
which render it advisable that this permission shall hereafter be re
stricted to the correspondence of the consuls of those powers only who,
by the legulations of their respective Governments, are not allowed to
engage in commerce. I will consequently thank you to request the
commander of any British vessel, who may visit the ports adverted to,
to abstain from carrying letters for consuls who may be engaged in
trade."

Mr. F. W. Seward, Acting Sec. of State, to Ivord Lyons, Feb. 6, 1862. MSS.
Notes, Gr. Brit.; Dip. Corr., 1862.

The French Government, while conceding, in 1854, to Mr. Soul6,
United States minister to Sj)ain, the right to pursue the direct route
through France to Spain, declined to permit him, in consequence of his
political antecedents, to make, on his way, a stay, "s^jour," in Paris.

Calvo droit int., 3d ed., vol. 1, 60o.

In Senate Executive Document No. 1, Thirty -third Congress, second
session, is printed the correspondence between the United States min
ister at Paris, Mr. Mason, and Mr. Drouyn de L'Huys, the French min-
ister of foreign affairs, relative to the refusal of the French Govern-
ment to allow Mr. Soule, the United States minister to Spain, to enter
France. The circumstances are thus stated by Mr. Lawrence:

" A question arose in 1854 between the United States and France as
to the immunities of a minister ])assing through the territories of a third
power, in Ihe case of Mr. Soul(5, minister at Madrid, who was stopped
at Calais in October of that year on his return to his post from which he
had been temporarily absent. The views of the French Government
are given in a note from the minister of loreign aflairs to the American
minister in Paris with regard to the privilege of transit, which was not
denied, as well as respecting the position in relation to that country
which the envoy to Spain held, he being a native-born subject of France,
and a naturalized citizen of the United States. While Mr. Soul^'s
quality of foreigner, deduced from hisexpatriation, is recognized as to all
other matters, and no exception taken to his title to the Spanish mis-
sion, ]\Ir. Drouyn de L'Huys refers to the rule of the law of nations
w^hich, he assumes, would have required a special agreement to have
enabled him to represent, in his native land, the country of his adoption.
' You see, sir,' says he, ' that the Government of the Emperor has not
wi«hed, as you appear to think, to prevent an envoy of the United
States crossing the French territory to go to his post to acquit himself
of the commission with which he was charged by his Government ; but
between this simple passage and the sojourn of a foreigner whose ante-
cedents have awakened, I regret to say, the attention of the authorities
invested with the duty of securing tiie public order of the country,
there exists a difference, which the minister of the interior had to ap-
preciate. If Mr. Soul6 was going immediately and direct to Madrid,
the route of France was open to hun ; if he was about coming to Paris
to sojourn there, that privilege was not accorded to him. It was,there-

656

C'TiAli. iV.] FREE' TRANSIT AND COMMUNICATION. [§ ^"7-

fore, iicci'srsiiry to consult him as to liis intentions, ami it was he who
difl not j:ive the time for doinj? this.

" ' Our laws are ])recise on the subject of foreijiners. The minister of
the interior causes the rij^orous dispositions of them to be executed
when the necessity for it is demonstrated to hiu), and he then uses a
discretionary powder which the Government of the Emperor has never
allowed to be discussed. The quality of foreigners placed Mr. Soul<i
under the operation of the measure which has been applied to him.
You will admit, sir, that in doings what we have done the Government
of the United States, with which His Imperial Majesty's Government
heartily desire to maintain relationsof friendship and esteem, has in no-
wise been attacked in the jierson of one of its rei)reseutatives. The
minister of the United States is free, I repeat, to cross France. Mr.
Soule, w^ho has no mission to fulfill near the Emperor, and who, con-
formably to a doctrine consecrated by the law of nations, would have
need, in consequence of his origin, of a special agreement to rep-
resent, in the country of his birth, the country of his adoption. Mr.
Soule, a i)rivate individual, comes within the operation of the law com-
mon to all ])ersons, which has been ajjplied to him, and cannot i)retend
to any privilege.' Mr. Drouyn de L'Huys to Mr. Mason, Nov. 1, 1854,
Senate Doc. !No. 1, 33d Cong., 2d sess."

Lawrence's Wheatou (ed. 1863), 422.

A i^erson coming into the United States as the diplomatic representa-
tive of a foreign state, with credentials from governing powers not rec-
ognized by this Government, is accorded diplomatic privileges merely
of transit, and this of courtesy, not of right, and such privileges may be
withdrawn whenever there shall be cause to believe that he is engaged
in, or contemplates, any act not consonant with the laws, peace, and
public honor of the United States.

8 Op., 471, Gushing, 1855.

Such a person, being charged with unlawful recruiting, was saved
from prosecution on condition of not becohiing chargeable with any
further offense and of departing from the country within a reasonable
time.

8 Op., 47:?, Gushing, 1855.

" The right to send dispatches of a minister secured by the law of
nations certainly involves the right to designate the messenger and the
inviolability of his person when executing the commission. But when
a country is in a revolutionary state this absolute right ought to be exer-
cised with due regard to the safety of the state where the minister
resides, and temporary inconveniences which do not go to the defeat of
the right itself may well be submitted to in such a time without a com-
promise of the dignity or honor of a just and friendly nation."

Mr. Seward, Sec. of State, to Mr. Burton, May 29, 1861. MSS. lust., Colombia.
That consuls are uot entitled to use their official agencies fur correspondence
for the carrying of commuuications to au enemy of the place of their resi-
dence, see Mr. Seward, Sec. of State, to Mr. Adame, Oct. 2-2, 1^61. infra,
^ 119.

S. Mis. 162— VOL. I VJ ^^"

§97.] DIPLOMATIC -AGENTS. [ciIAr. IV.

A bag i»m]K>rtiiig- to contain dispatches of a foreiiiii Go\eininont,
and sealed and authenticated by a consul of such (rovernment, is re-
garded as invested with the seal of such Government, and is not open
to examination by the authorities of the country to which the consul is
accredited.

Mr. Seward, Sec. of State, to Lord Lyons, Apr. 5, 1862. MSS. Notes, Gr. Brit.

"On general principles, however, a Government may be said to have
a clear right to send its communications to its diplomatic agents in for-
eign countries, and its legation in one country to those in another by
means of couriers, which communications should be inviolable by the
authorities of the country through which they may pass. If the courier
should be, as he ought to be, x^rovided with a passport attesting his offi-
cial character, and the dispatches of which he is the bearer are in his
luggage, his affirmation to that eiiect ought, it seems to me, to exempt
the latter from search, unless its bulk or otlier circumstances afford rea-
sonable ground for suspicion that the courier has abused his official
position for the purpose of smuggling.

" Formerly it was the practice of this Department, and of the lega-
tions of the United States abroad, to issue courier passports for the
mere convenience of individuals, when either there were really no dis-
patches to send, or, if there were, they might as well have gone by post.
The abuse to which this practice led, and the consequent disrepute into
which it brought the Government in Europe, compelled its discontinu-
ance many years since. The authorities of that quarter may probably
be induced to withhold perhaps the customary courtesies from couriers
of the United States from a recollection of their former excessive num-
bers. If, however, it should be understood that persons are not now
employed in that capacity except upon occasions similar to those when
they are employed by other Governments, we would have a right to
expect for our couriers the same immunities which are accorded to those
of any other Government."

Mr. Seward, Sec. of State, to Mr. Dayton, June 21, 1862. MSS. Inst., France.

The United States Government will regard the detention by one bel-
ligerent of its minister to the other belligerent as a grave violation of
international law.

Mr. Seward, Sec. of State, to Mr. Webb, Sept. 23, 1866. MSS. Inst., Brazil.

Free transit to a public minister may be demanded through a block-
ading squadron.

Mr. Seward, Sec. of State, to Mr. Webb, Aug. 17, 1868. MSS. Inst., Brazil.

Safe conducts in such cases are granted by the law of nations.

Mr. Fisb, Sec. of State, to Mr. Kirk, June 17, 1869. MSS. Inst., Arg. Eep.

" The question which arose between General Hovey and the minister
for foreign affairs of Peru, relative to the right of that Government

658

niTAt\ IV.] FREE TRANSIT AND COMMUNICATION. 1^97.

to obstruct the departure of Colouel Farraud, who liad bi en iippointcd
a; bearer of dispatches by the geueral, seems to be of too luiich {general
importance to be left unnoticed by this Department. It is of no moment
in the particular case, as the Peruvian Government ultimately connivt'tl
at Colonel Farrand's departure.

"The occasion for the colonel's employment in the character adverted
to was the conclusion of two treaties between the United States and
Peru, which were signed on the (Uh and lUth of last month. (Jeneral
Hovey's instructions recognized his right to make such an api)oiutment
in such a contingency. The appointment was made accordingly on the
12th of September, and Colonel Farrand's i)assport in his ofli«Mal char
acter issued to him on that day without any information to Cieneral
Hovey that any branch of the Peruvian Government or any person
objected to the colonel's discharging the duties of his trust. It seems,
however, that subsequently, but before the colonel could start on his
errand, a person claiming to be a creditor of his sued out judicial process
forbidding him to leave Peru. General Hovey promptly complained of
this proceeding as contrary to international law relative to the immuni-
ties of couriers, as set forth in Wheaton's treatise on that subject.
The minister, in his reply, while acknowledging the authority of
Wheaton, endeavors to restrict the privilege of couriers as there declared
to those appointed by a Government to its legations abroad, ami en-
larges upon the inconveniences which the more extensive enjoyment of
such immunities would lead to. It is true that no abuse of the privilege
in this case is alleged, but its existence is impliedly, at least, denied.
This denial, however, has no support from Wheaton, or from any other
writer on that branch of public law. If the Peruvian minister supposed
that he had any reason to hesitate in acknowledging the unqualifu'd
character of the rule laid down by Wheaton, the plain and uiuMiuivocal
terms iu which Calvo speaks upon this point maybe enough to remove
any such hesitation. The work of this author on international law was
published in Spanish at Paris, in 18()8. It is remarkable as embracing
everything illustrative of the subject up to the time of its publication,
and its clearness and precision are at least equal to its fullness. At
l)aragraph 240, on page 350 of the first volume, may be found the words
of which the following is a translation :

" ' The inviolability which public ministers enjoy has also been ex-
tended to the messengers and couriers of the embassies and to those
who proceed to them with official dispatches, and as a general rule to
all who discharge, as cases may arise, any commission for those em-
bassies.'

" This,itseems,shouldbeconclusiveotthequestion. If General Hovey

had been aware that Colonel Farrand was justly liable to arrest, and had
willfully appointed him a bearer of dispatches to screen him therefrom,
this would have been suflicient cause of complaint on the part of the
Peruvian Government, and perhaps of censure of its minister by this

4>5d

§ 97.] DIPLOMATIC AGENTS. [cHAP. IV.

Government. Even this knowledge on the })aitol' the general, however,
would not, it is conceived, have impaired the immunity of his courier
under the public law. If alleged delinquencies or pretended claims are
trumped up against persons appointed or about to be ajipoiuted couriers
in foreign countries to i^revent them from starting, the immunity guar-
anteed to them by jjublic law may at any time be annihilated by an
envious or malicious person. This is a result to be deplored and guarded
against by all Governments, by the Government of Peru as well as by
the Government of the United States."

Mr. Fish, Sec. of State, to Mr. Brent, Oct. 19, 1870. MSS. Inst. Peru ; For.
Eel., 1870.

" The undersigned, after a careful consideration of the subject, and
with every disposition to acknowledge the just and necessary belligerent
rights of the blockading force, cannot acquiesce in the jiretension set
up on behalf of that force. It is true that, when such a force invests
a fortified place with a view to its reduction, one of the means usually
relied upon for that puipose is the interrujition of ordinary communica-
tion by messengers or by letters. This is acknowledged to be not only
a belligerent right, but also one incident to the actual sovereignty over
the enemy's territory occui>ied by the assailant adjacent to the block-
aded place. Paris, however, is the capital of France. There the diplo-
matic representatives of neutral states had their official residence prior
to the investment. If they think proper to stay there while it lasts
they must expect to put up with the inconveniences, necessarily incident
to their choice. Among these, however, the stopping of communication
with their Governments cannot be recognized. The right of embassy
to a belligerent state is one which it is both the duty and the interest
of its enemies to acknowledge and to permit the exercise of in every
usual or proper way. If this right should be denied, or unduly cur-
tailed, wars might be indefinitely prolonged, and general peace would
be impracticable.

" The privilege of embassy necessarily carries with it that of employ-
ing messengers between the emba.ssy and its Government. This is a
privilege universally recognized by publicists. There is no exception or
reservation made for the case of an embassy having its abode in a block-
aded place. Indeed, the denial of the right of correspondence between
a diplomatic agent in such a place and his Government seems tanta-
mount to insisting that he cannot elect to be a neutral, but must be
regarded as an adversary if he continues to stay there, especially when
the legitimacy of the authority of those directing the resistance is denied
by the other assailant.

" The opposite course, which it has suited the convenience of some

neutral Government to adopt, is obviously liable to be construed, partly,

at least, the occasion of withholding the privilege of correspondence.

Should this be a correct view of the case, no independent state, claim-

660

CHAP. IV.] FREE TRANSIT AND COMMUNICATION. [^ 97.

ing to be a free agent in all things, could, in self-respect, acquiesce in a
proceeding actuated by such a motive. The undersigned does not charge
the Government of the North German Union with being so actuated,
but deems himself warranted in thus referring to the point, as it is
adverted to by the representative of that Government both at Berlin
and before Paris.

"The undersigned is consequently directed to claim that the right of
corresi)ondence between the representatives of neutral i>owers at Paris
and their Governments is a right sanctioned by public law, which can-
not justly be withheld without assigning other reasons therefor than
those which have hitherto been advanced. The burden of proof of the
sufficiency of those reasons in furtherance of the belligerent rights of
the assailant must be borne by him. While, however, the undersigned
is directed to claim the right as due to all neutrals, he will not omit to
acknowledge the partial exception made in favor of the minister of the
United States for the reasons assigned."

Mr. Fish, Sec. of State, to Baron Gerolt, Nov. 21, 1R70. MSS. Notes, Germ. ;
For. Rel., 1870.

" The refusal of the German authorities at the investment of Paris to
allow the United States minister there to send a messenger to London
with a pouch, with dispatches from his legation, unless the contents of
the pouch should be unsealed, must be regarded as an uncourteous
proceeding, which cannot be acquiesced in by this Government. Block-
ade by both sea and land is a military measure for the reduction of an
enemy's fortress, by preventing the access of relief from without, and
by compelling the troops and inhabitants to surrender for want of sup-
plies. When, however, the blockaded fortress happens to be the capi-
tal of the country where the diplomatic representative of a neutral state
resides, has the blockading force a right to cut him off from all inter-
course by letter with the outer world, and even with his own Govern-
ment ? No such right is either expressly recognized by public law, or
is even alluded to in any treatise on the subject. The right of legation,
however, is fully acknowledged, and, as incident to that right, the
privilege of sending and receiving messages. This privilege is ac-
knowledged in unqualified terms. There is no exception or reservation
looking to the possibility of blockade of a capital by a hostile force.
Although such blockades are not of frequent occurrence, their liability
to happen must have presented itself to the minds of the writers oh
public law, and, if they had supposed that the right of sending mes-
sengers was merged in or subordinate to the belligerent rights of the
assailant, they certainly would have said so. Indeed, the rights of
legation under such circumstances must be regarded as paramount to
any belligerent right. They ought not to be qMCStioned or curtailed,
unless the attacking party has good reason to believe that they will be

661

§ 97.] DIPLOMATIC AGENTS. [CHAP. IV.

abused, or unless some military necessity, which upon proper state-
ment must be regarded as obvious, shall require the curtailment.

"Tiie condition upon which the sending of messengers was oflered
was humiliating, and could not be accepted by any diplomatic agent
with any self-respect. Correspondence between those officers and their
Governments is always more or less confidential, and it is unreasonable
to suppose that its inspection by the blockading force should be per
mitted. Indeed, the requirement of such a condition must be regarded
as tantamount to an imputation both upon the integrity of the minister
and the neutrality of his Government.

"You will conse(juently remonstrate against the exercise of authority
adverted to as being contrary to that paramount ri^ht of legation which
every independent nation ought to enjoy, and in which all are equally
interested.

"Prussia has heretofore been a leading champion of the rights of
neutrals on the ocean. She has, even during the existing war, made
acknowledged sacrifices to her faith and consistency in that respect.
The course of her arms on land does not seem to warrant or require any
enforcement of extreme belligerent claims in that quarter as against
neutrals.

"An analogous privilege of legation was upon several occasions suc-
cessfully asserted by this Government during the late war between
Brazil and her allies on the one side and Paraguay on the other. Mr.
Washburn, the United States minister to Paraguay, applied for a per-
mit to take him through the hostile lines to Asuncion, his destination.
The application, though at first rejected, was ultimately granted. Ap-
plication was subsequently made for leave for General McMahon, his
successor, to pass the same lines, and for the vessel which carried him
to bring back Mr. Washburn. This, also, though at first refused, was
ultimately granted. There is reason to believe that the course taken
by this Government on those occasions was approved by other Govern-
ments. It is probable that other Governments would also sanction the
claim of the United States in this case."

Mr. Fish, Sec. of State, to Mr. Bancroft, Nov. 11, 1870. MSS. lust. Germ. ; For.
Rel., 1870.

'■I have received your Xo. 183, of the 21st ultimo, accompanied by
the original of a letter from Count Bismarck replying to my note of
November 21 to Baron Gerolt, and also a translation of the same. 1
am happy to think that the question discussed in my note, and in
Count Bismarck's reply, is no longer one of practical application to
any probable occurrences. It is therefore quite unnecessary to con
sider whether the approach of a hostile force, and its military pre]»ara-
tions for the capture of a city which has been for ages the seat of Gov-
ernment and the capital of the country, where the political head of
that country is and has been established, where its minister of foreign
itffairs has his office and his archives, where the representatives of
662

CHAP. III.] FREE TRANSIT AM) COMMrMCATION. [§ 97.

other power.s liave been and aic lesideut, can so couveit that city iuto
a military fortress as to a|»ply to it the rules ol" war ajiplicable to for-
tresses as (listinj;nish<'d lioni other towns. Or wln-lher snrh ajjproach
and military demonstrations of a hostile force impose upon the diijlo-
matic representatives of other and neutral states the alternative ot
abandoning their posts and their duties, or of privation of the right of
free and uninterru])ted <-.orrespondence with tJieir Goveiiunent, which
public law, no less than international comity, accords in the interest of
peace. I inclose herewith copies of a correspondence between Mr.
Washburne and Count l>ismarck on the subject of the transmission of
Mr. Washburne's dispatches. You will observe that in this corre-
spondence Count Bismarck, under date of January 15, admits that the
delay to which the transmission of the correspondence of this Govern-
ment with its minister in Paris was subjected depended upon the prin-
ciple adopted by the general staff of the German army, allowing no
sealed packages or letters to pass through their lines in either direction
without a stoppage of several days, and he cautiously disclaims one
act of immediate transmission being taken as a precedent. The Presi-
dent desires to make all proper allowance for the military exigencies
which are represented to have led to the withholding and detaining of
the oflticial correspondence of the minister, and is gratified to receive
the recognition in Count Bismarck's letter of 28th of January to Mr.
Washburne of the right of correspondence contended for in my note
to Baron Gerolt of 21st November last, and his assurance that the
delay to which it was subjected proceeded from causes which he could
not remove.

" Recent events, it is confidently hoped, have removed the probability
of any recurrence of the interruption of free correspondence. And
Count Bismarck's assurance to Mr. Washburne that 'the delay ocL-ur-
ring now and then in the transmission of your dispatch-bag is not occa-
sioned by any doubt as to the right of your Government to correspond
with you, but by obstacles it was out of my power to remove,' confirms
this Gov^ernment in its confidence of an entire agreement between it
and IsTorth Germany on the question of the right and the inviolability
of correspondence between a Government and its representative, and
of the absence of any intentional interference with that right in the case
of its minister to Paris. I send, herewith, a copy of a dispatch of this
date to Mr. Washburne.

"As Count Bismarck's recognition of the right for which I contended
in my note to Baron Gerolt is subsequent to his letter to you of loth
January, and admits what 1 felt it my duty to claim, there does not
appear to be any necessity for continuing the discussion, unless the
subject be agaiu referred to by the German minister, in which case you
are authorized to rea 1 to him this dispatch."

Mr. Fish, Sec. of State, to Mr. Baucroft, Feb. 24, 1871. MSS. lust., Germ. ; For.
Rel.,1871.

663

§ 97.] DIPLOMATIC AGENTS. [CHAP. IV.

"Your letters to Count Bismarck ou tbe subject of the dispatch-bag:,
and its conveyance to and from Paris, meets tbe entire approval of the
Departmcint. It is dignified, forcible, and just.

•'It was not nnnatural that the powers besieging Paris during their
long and terrible efforts should have had their susceptibilities aroused
at times, by the various rumors and statements (originated and put in
circulation possibly for the very purpose of operating upon those sus-
ceptibilities) of information prejudicial to their military operations being
conveyed into and from the beleaguered capital.

"But it would be very much to be regretted, and would have been
very unjust, had even a momentary suspicion found its lodgment in
minds capable of achieving the results that have attended the civil and
military operations of Germany toward the representative of a friendly
state, and that representative being the one who, at the request of
Germany, and with the consent of his own Government, had charged him-
self with the arduous and critical duty of the care and protection of the
German residents shut in with the millions of Frenchmen in the capital
which Gennany was endeavoring to reduce by siege, starvation, and
bombardment.

''The President observes, however, with satisfaction the very just
disclaimer of any suspicion of the good faith of our conduct, in the let-
ter of the chancellor of the Korth German Union to you, under date of
28th January last.

"The question of the right of uninterrupted correspondence between
a neutral power and its representative, duly accredited and resident in
the capital of a belligerent, which, while he is thus resident, becomes
the object of attack and siege by another belligerent, is now, happily,
no longer one of immediate practical application.

"It is satisfactory to notice that, although Count Bismarck, in his
note addressed to you on 6th December last, speaks of 'obtaining for
the legation of the United States the privilege of receiving closed dis-
patches,' in his note of January 28, from Versailles, he recognizes the
principle asserted by me in a note addressed to Baron Gerolt on 21st
November last (of which a copy was sent to you with my No. 206 of 22d
November), and admits of no 'doubt as to the right of your Government
to correspond with you.'

"The delays and interruptions to that right are, I trust, wholly of the
past, and may have been, and it is hoped were, the unavoidable acci-
dents of the then pending military strife. In the absence of any recur-
rence, we are content with the recognition so fully made by Count Bis^
marck of the right which we claimed."

Mr. Fish, Sec. of State, to Mr. Washburue, Feb. 24, 1871. MSS. lust., France.
Documents attached to President Hayes's message of Feb. 6, 1878.

" Couriers and bearers of dispatches, employed by a diplomatic agent
in the service of his Government, are privileged i)ersous, as far as is
necessary for their particular service, whether in the state to which the

664

CHAP. IV.] PRIVILEGED FROM TESTIFYING. [§ 98.

agent is accredited, or in the territories of a third statt- with which the
Government they serve is at peace.

"It is expected that coniniunications to the Department will be sent
by mail ; or, if by jirivate hand, that no i)roniise l)e made to the person
so employed of compensation, or of a rt'imbnrsem«Mit of his expenses,
withont the previons authority of the Department, and that no ground
of expectation of com])ensation or of reimbursement of exjienses \>v
given. It may happen that responsible ]nivate individuals ofter their
service, without expectation of compensation, for the conveyance of
official communications to the Department, or from one legation to
another. Such courteous otters may sometimes be accei)ted if deemed
advisable.

" It is not intended to prevent diplomatic agents abroad from em-
ploying couriers at the public expense when the mails are obstructed,
or deemed unsafe, and when there may be occasion to address the De-
partment on subjects materially afiecting interests of the United States
which might sufler from delay or reasonably apprehended interrup-
tion in the transmission of the dis])atch. The exercise of the utmost
discretion is, however, enjoined in judging of these exigencies. When-
ever the minister shall determine to send a courier, he will inform this
Department of the fact, assigning the reasons therefor, and stating the
compensation he recommends to be allowed him. The Secretary of
State nevertheless reserves to himself the right in all cases to judge of
the necessity for the employment of a messenger, and of the propriety of
paying the whole or any i)art of the compensation whieh may have been
recommended. This should be fully explained by the minister to the
messenger before intrusting him with the disi)atches.

" When a bearer of dispatches is employed as above, a special i>ass-
port may be given to him by the diplonuitic agent, setting forth his
name and the duty he is to perform. Su<;h a passi)ort is to be furnished
without charge, and is only good for the journey for which it is issued."

Printed Pere. lust. Dip. Agents, 1885.

XXII. PRIVILEGED FROM TESTIFYING.

§98.

Whether an attach^ of a foreign mission can be required to attend a
local court of justice as a witness is a question at the outset for such
court to determine.

Mr. Van Buren, Sec. of State, to Mr. Bill6, Oot. 23, 18:50. MSS. Notes, For. Leg.

In 1854 ]Mr. Dillon, then consul of France at San Francisco, was
brought into the United States district court, then sitting, on an attach-
ment for refusing to obey asubpa'ua (luces iccnm issued from thatc<uirt to
compel his attendance at a criminal trial then and tliere pending. Mi-.
Dillon i)rotested against the process on two grounds: (1) Immunity
from such process by international law; (2) ininmnity under the French-
American tieaty. The second })oint was merged in argument in the
first, since it was agreed by counsel that tlie tK-aty i)rivileg<' could not
stand in the way of a ])arty's constitutional right to meet tin' witness
against him face to face, unless that privilege was in accordance with
public international law. On this question the court (Hoflman, J.)
spoke as follows :

" If the accused, by virtue of the constitutional provision in this case,
can com per the attendance of the consul of France, it seems necessarily

665

§ 98.] DIPLOMATIC AGENTS. [CHAP. IV

to follow the attendance of an ambassador could in like manner be en-
forced.

"The immunity afforded to and personal inviolability of ambassadors,
now universally recognized by the law of nations, has been deemed one
of the most striking- instances of the advance of civilization and the
l)ro8ress of enlightened and liberal ideas. Though resident in a foreign
country to which they are deputed (1 Kent's Com., 45), their persons
have, by the consent of all nations, been deemed inviolable : nor can
they, says the same high authority, be made amenable to the civil or
criminal jurisdiction of the country. By fiction of law the ambassador
is considered as if he were out of the territory of the foreign power, and,
though he resides within the foreign state, he is considered a member
of his own country, retaining his original domicile, and the Government
he represents has exclusive cognizance of his condnct and control over
his person (1 Kent's Com., 40). Does, then, the Constitution of the
United States, by the provision in favor of persons accused of crime,
intend to subject these high functionaries to the process of the courts,
and does it authorize and require the courts in case of disobedience to
violate their persons and disregard immunities universally conceded
to them by the law of nations, by imprisoning them ? If, as is the re-
ceived doctrine, the ambassador cannot, even in the case of a high crime
committed by himself, be proceeded against, it is obvious that for a
lesser offense of a contempt or disobedience to an order of a court, he
would a fortiori not be amenable to the law. The only giouud upon
which the right of a court to compel the attendance of an embassador
by its process, and to punish him if he disobey it, can be placed, is that
the Constitution is in this case in conflict with and paramount to the
law of nations, and the immunity usually conceded to ambassadors is,
by the provision in favor of the accused in criminal cases, taken away.

"But the privilege of ambassadors from arrest, under any circum-
stances, has been declared by Congress by special legislation. By the
twenty-fifth section of the act of Congress of April 30, 1790, it is enacted
that 'if any writ or j)rocess sue ont of any courts of the United States,
or of a particular State, or by any judge or justice therein respectively,
whereby the i)erson of an ambassador may be arrested or imprisoned,
or his goods distrained, seized, or attached, such writ and process shall
be deemed and adjudged to be utterly null and void to all intents, con-
struction, and purposes whatever.' "

When the attachment was served on Mr. Dillon, he hauled down his
consular flag; and the case was taken up by the French minister at
Washington, as involving a gross disrespect to France. A long and
animated controversy between Mr. Marcy, then Secretary of State, and
the French Government ensued. The fact that an attachment had issued
under which Mr. Dillon was brought into court was regarded by the
French Government as not merely a contravention of the treaty., but an
offense by international law; and it was argued that the disrespect was
not purged by the subsequent discharge of Mr. Dillon from arrest. It
was urged, also, that the fact that the subpa'ua contained tlie clause
duces tecnni invoive<l a violation of the consular archives. Mr. Marcy,
in a letter of September 11, 1854, to Mr. Mason, then minister at Paris,
discusses these questions at great length. He maintains that the pro-
vision in the Federal Constitution giving defendants opportunity to meet
witnesses produced against them face to face, overrides conflicting treat-
ies, unless in cases where such treaties embody exceptions to this right
recognized as such when the Constitution was framed. One of these

666

CHAP. IV.] PRIVILEGED FROM TESTIFYING. [§ 98.

exceptions relates to the case of diplomatic representatives. "As the
law of evidence stood when the Constitution went into cflect," says Mr.
Miircy, " ambassadors and ministers could not be served with' com-
pulsory process to api)ear as Avitnesses, and the clause in the Const it uti<tii
referred to did not give the defendant the right in criminal prosecutions
to compel their attendance in court." This privilege, however, Mr.
Marcy maintained, did not extend to consuls, and consuls, therefore,
could only i)rocure the privilege when given to them by treaty which,
in criminal cases, was subject to the limitations of the Constitution of
the United States. Mr. Marcy, however, finding that the French C.ov-
ernment continued to regard the attachment, with the subpoMia ducex
tecum, as an attack on its honor, ottered, in a letter to Mr. Mason, dated
January 18, 1855, to compromise the matter by a salute to the French
flag upon a French man-of-war, stopi)ing at San Francisco. Count de
Sartiges, the French minister at Washington, asked in addition that
when the consular flag at San F^raucisco was rehoisted, it should re-
ceive a salute. This was declined by Mr. Marcy. In August, 1855,
after a long and protracted coutrovensy, the French Government agreed
to accept as a sufficient satisfaction an expression of regret by the Gov-
ernment of the United States, coupled with the provision that "when a
French national ship or scpiadron shall ajjpear in the harbor of San
Francisco the United States authorities there, military or naval, will
salute the national flag borne by such ship or squadron with a national
salute, at an hour to be specitied and agreed on with the French naval
commanding officer present, and the French ship or squadron whose
flag is thus saluted will return the salute gun for gun."

In re Dillon, 2 Sawyer, 564, 565.
As to saluting flag, see infra, ^ 315.

" The Constitution is to prevail over a treaty where the provisions of
the one come in conflict with the other. It would be difficult to find a
reputable lawyer in this country who would not yield a ready assent to
this proposition. Mr. Dillon's counsel admitted it in his argument for the
consul's privilege before the court iu California. The sixth amendment to
the United States Constitution gives, in general and comprehensive lan-
guage, the right to a defendant iu criminal prosecutions to have compul
sory process to procure the attendance of witnesses iu his favor. Neither
Congress nor the treaty-making power are competent to put any restric-
tion on this constitutioual provision. There was, however, at the time of
its adoption, some limit to the range of its operation. It did not give to
such a defendant the right to have compulsory process against all per-
sons whatever, but only against such as were subject to subpiena at
that time, such as might by existing law be witnesses. There were then
persons and classes of persons who were not thus subject to that proc-
ess, who, by privileges and mental disqualifications, could not be
made witnesses, and this constitutional provision did not confer the
right on the defendant to have compulsory process against them. As
the law of evidence stood when the Constitution went into eftect, am-
bassadors and ministers could not be served with compidsory process
to appear as witnesses, and the clause in the Constitution referred to
did not give to the defendant in criiniual proscculious the right to com-

667

§ 98.] DIPLOMATIC AGENTS. [CHAP. IV.

l)el tbeir attendance in coui-t. But what was the case in this respect as
to consuls ? They had not the dii)lomatic privileges of embassadors
and ministers. After the adoption of the Constitution the defendant
in a criminal prosecution had the right to compulsory process to bring
into court as a witness in his behalf any foreign consul whatsoever. If
he then had it, and has it not now, when and how has this constitu-
tional right been taken from him ? Congress could not take it away,
neither could the treaty-making power, for it is not within the compe-
tence of either to modify or restrict the operation of any provision of
the Constitution of the United States."

Mr. Marcy, Sec. of State, to Mr. Masou, Sept. 11, 1854. MSS. Inst., France.
See as toi)aramount authority of Constitution in such cases, Mr. Marcy, Sec.
of State, to Mr. Mason, Jan. 18, 1855. Ibid.

" France was the early aud eflScient ally of the United States in their
struggle for independence. From that time to the present, with occa-
sional slight interruptions, cordial relations of friendship have existed
between the Governments and people of the two countries. The kindly
sentiments, cherished alike by both nations, have led to extensive social
and commercial intercourse, which, I trust, will not be interrupted or
checked by any casual event of an apparently unsatisfactory character.
The French consul at San Francisco was, not long since, brought into
the United States district court at that place, by compulsory process,
as a witness in favor of another foreign consul, in violation, as the
French Government conceives, of his privileges under our consular
convention with France. There being nothing in the transaction which
could imply any disrespect to France or its consul, such explanation
has been made as I hope will be satisfactory. Subsequently, misun-
derstanding arose on the subject of the French Government having, as
it appeared, abruptly excluded the American minister to Spain from
passing through France, on his way from London to Madrid. But that
Government has unequivocally disavowed any design to deny the right
of transit to the minister of the United States ; and, after exi>lanations
to this effect, he has resumed his journey, and actually returned through
France to Spain. I herewith lay before Congress the correspondence
on this subject between our envoy at Paris and the minister of foreign
relations of the French Government."

President Pierce, Second Aimnal Message, 1854.

"A case of homicide having occurred at Washington, in 1850, in the
presence of the Dutch minister, whose presence v,'as deemed altogether
material for the trial, 'and inasmuch as he was exempt from the ordi-
nary process to compel the attendance of witnesses,' an application
was made by the district attorney, through the Secretary of State, to
Mr. Dubois to appear and testiify. The minister having refused, by
the unanimous advice of his colleagues, in a note of the llth of May,
1856, to the Secretary of State, to appear as a witness, Mv. Marcy in-
structed, May 15, 1856, Mr, Belmont, minister of the United States at

668

CHAP. IV.] PRIVILEGED FROM TESTIFYING. [§ 98.

the Hague, to bring the matter to the attention of llie Netherhinds (iov
eminent. He says, that 'it is not <hjnbte<l that l)oth by tin- nsajre ot
nations and the laws of the United ^States, M. J)ul)()is has the legal right
to decline to give his testimony; but he is at pciileijt liberty to exen^ise
this privilege to the extent requested, and by doing so he does not sub-
ject himself to the jurisdiction of the country. The circumstances of
this case are such as to appeal strongly to the universal sense of justice.
In the event of M. Van Hall's suggesting that M. Dubois might give
Ills deposition out of court in the case, you will not omit to state that
by our Constitution, in all criminal prosecutions, the accused has the
right to be confronted with the witnesses against him, and hence, in
order that the testimony should be legal, it must be given before the
court.' M. Van Hall, June 9, 1856, in a note to Mr. Belmont, declined
authorizing the minister to appear in court. He said that • availing
himself of a prerogative generally conceded to the members of the diplo-
matic body, and recognized also by the laws of the Republic, as ad-
verted to by Mr. Marcy, M. Dubois refused to ai)pear before a court
of justice ; but being desirous to at once reconcile that prerogative with
the requirements of justice, he suggested a middle course of action,
and proposed to Mr. Marcy to give his declaration umler oath, should
he be authorized to that effect by the Government of the Netherlands.
After taking the King's orders on the subject, I did not hesitate to give
such authority toM. Dubois, approving at the same time, and tbrmally,
the line of conduct which he pursued on that occasion.' M. Dubois
addressed a note to I\Ir. Marcy, on the 21st of June, stating that he was
authorized to make his declaration under oath at the Department of
State, adding, 'it is understood that, on such an occasion, no mention is
to be made of a cross-examination, to which 1 could not subject myself.'
The declaration was not taken, as the district attorney stated that it
would not be admitted as evidence."

Lawreuce's Wheaton (ed. 1863), 393, 394.

The correspondence of the Government of the Netherlands, in refus-
ing to allow its diplomatic agent to testify in the criminal courts of the
United States, is given in Senate Ex. Doc. No. 21, 34th Cong., 3d sess.

See also Dana's Wheaton, § 225, note 125.

On the trial of Guiteau, Senor Camacho, minister from Venezuela, who
was present at President Garfield's assassination, was called as a wit-
ness for the prosecution. Before he was sworn the following statement
was made bv the district attorney:

" If your honor please, before the gentleman is sworn, I desire to state,
or rather I think it due to the witness to state, that he is the minister
from Venezuela to this Government, and entitled under the law gov-
erning diplomatic relations to be relieved from service by subpcena or
sworn as a witness in an#y' case. Under the instiuctioiis of his Govern-
ment, owing to the friendship of that Government for the United States,
and the gi^eat respect for the memory of the nuin who was assassinated,
they have instructed him to waive his rights and appear as a witness
in the case, the same as any witness who is a citizen of this country."

Guiteau's Trial, I, 136.

"A foreign diplomatic representative cannot be comi>elled to testify,
in the country of his sojourn, before any tribunal whatsoever. This
right is regarded as appertaining to his office, not to his person, and is

669

§ 99.] DIPLOMATIC AGENTS. [CHAP. IV.

one of which l)e ciiniiot divpst himself exce])t by the consent of his Gov-
ernment. Therefore, even if a diplomatic agent of the United States
be called upon to give testimony under circumstances which do not con-
cern the business of his mission, and which are of a nature to counsel
him to respond in the interest of justice, he should not do so without
the consent of the President, obtained through the Secretary of State,
which in any such case would probably be granted."

Printed Pers. Inst. Dip. Agents, 1885.

As to consular privileges in this respect, see infra, ^ 120.

XXIII. CANNOT BECOME BUSINESS AGENTS.

§ 99.

A public minister cannot act as agent for the collection of private
claims without injury to the dignity and decorum of the public service.
Mr. J. Q. Adams, as reported in 4 Mem. J. Q. Adams, 347.

It is not within the province of the Department of State to make in-
quiries abroad as to matters of the purely private business of citizens
of the United States, though applied to by such citizens.

Mr. Buchanan, Sec. of State, to Mr. Hough, Mar. 13, 184(5. MSS. Dom. Let.

The Department will not, at the suit of private claimants, call upon
foreign ministers to make inquiries in the countries where they are res-
ident as to the business interests of such claimants.

Mr. Marcy, Sec. of State, to Mr. Reedy, Aug. 21, 1856. MSS. Dom. Let. Mr.
Marcy to Mr. French, Dec. 12, 1856 ; ibid.

"It is not within the province of a minister of the United States
abroad to present private claims unless they are the result of a viola-
tion of international law by the Government addressed."

Mr. Fish, Sec. of State, to Mr. Eliot, May 12, 1869. MSS. Dom. Let.

" The aid of the diplomatic representatives of the Government is fre-
quently requested for the prosecution of private investigations, but this
Department does not feel justified in being the medium of conveying'
requests of that character, which necessarily involve much labor and
investigation, and occasionally considerable expense, — and when some-
times an official sanction may be inferred from the source through which
certain facts are obtained, to the private and individual theories of the
author who may use the information thus obtained through official
channels.

" It is a rule, therefore, of this Department not to impose upon the
diplomatic agents of the Government the labor of obtaining informa-
tion of the kind sought by Mr. Burt, except when sought for the official
use of some of the Departments of Government.

"In the present case it is believed, from the nature of the informa-
tion sought, that Mr. Burt will find little difficulty in obtaining it through
other agencies. There will be no objection to his making an individual
670

('•HAP. IT.] CANNOT BECOMr: HTTSINESS AGENTS. *[^\ lOO.

applicatiou in his owu name to the minister at Vienna, who will Iw ;it
liberty, if he i.s tluis inclined, to undertake the labor. r>u( tliis Drpmt-
nient cannot inii)OHe the ta.sk npon him."

Mr. Fish, Sec. of State, to Mr. Kicbardsoii, Nov. 1, 1h7;{. MSS. Ddin. Let.

"A standing- rule of the service prevents ministers Irom acting: as
claim agents or bankers for citizens at home in their <lealin;js with the
foreign Government to which they are accredited, unless the l)c|)arl-
ment gives them permission to do so."

Mr. FrfclingliuYsen, Sec. of State, to Mr. Wright, Apr. 5, ld64. MSS. JJom. I.d.
Sec Mr. Evarts. See. of State, to Mr. Yotler, May2l,1880. MSS. Dom. l,.-i..
infra, ^ 12:?.

"It Is no part of the business of a legation to act as a safe (k'i)<)sit
institution, and no responsibility (of insurance) can attach to tlu- min-
ister if he yield to the request and take such property into his keeping
without valuable consideration."

Mr. Bayard, Sec. of State, to Mr. Cox, Dec. 23, 1885. MSS. lust., Turkey.

" It is no i)art of the duty of this Department or of the diplomatic oi-
consular oflicers of the United States abroad to attend to the prosecu-
tion of the private claims of American citizens in foreign states, espe-
cially in countries like Great Britain, where the courts of justice are
open to them."

Mr. Bayard, Sec. of State, to Miss Heald, .July 9, 188t). MSS. Dom. L«^t.

"The interposition of diplomatic agents is often asked by their coun-
trymen to aid in the collection of claims against the (Jovernnieiit to
which they are accredited. Jf the claim is founded in contract, they will
in no event interfere without specific instructions to do so. If it is
founded in tort, they will as a general rule in like manner seek jn-evious
instructions before interfering, unless the i)erson of the claimant be
assailed, or there be i)ressing necessity for action in his behalf before
they can communicate with the Department; in which event they will
communicate in full the reasons for their action."

Printed Pers. Inst., Dip. Aj,'oiits, 1885.

XXIV. NOJi REFRESENT FOBEraX COVERy.MEXTS. '

§ 100.

A minister plenipotentiary of the United States cannot, without the
consent of Congress, accept a similar commission from another jiower,
though he is not prohibited from rendering a friendly service to a foreign
power, even that of negotiating a treaty for it, i)rovi(le(l he does not
become an officer thereof.

13 Op., 537, Akerman, 1871. As to joint action with other ill pi. unutistf. m-o hiftti,
Un2.

"Diplomatic officers are sometimes requested to discharge tempo
rarily the duties of those of other countries. It nuiy be proi)ei- as a

071

§s^ 101, 102.] DIPLOMATIC AGKNTS. [CIIAP. IV.

matter of comity to accede to sucli leqnests. but not (miless iiudei'
nrfieiit eircumstaiiees) until permission has been granted by the Depart-
ment of State. I)i])lomatic ofli<;ers, however, are prohibited by the
Constitution (art. 1, sec. 9) from performing, without the consent of
Cojigress, any duties for any foreign Government which involve the
acceptance of office from such foreign Government."

Printed Pers. lust., Dip. Agents, 1885.

As to gratuitous services in sncli cases, see infra, ^ 105.

XXV. SHOULD BESIDE AT CAPITAL.

§101.

" If the President has in one or two instances acquiesced in the resi-
dence of foreign ministers in a distant city of the Union, it has been
because they have had but little business to transact with this Govern-
ment, and because their residence there has given rise to no complaint
of breach of privilege on the one hand or of personal injury to American
citizens on the other."

Mr. Clay, Sec. of State, to Mr. Tacou, Dec. 10, 1828. MSS. Notes, For. Leg.

As to Mr. Jackson's action in this line, see infra, § 107.

The practice of residence of foreign legations at other places than the
capital is beset with many inconveniences, and cannot be looked upon
with satisfaction by the Government of the United States.

Mr. Vau Bureu, Sec. of State, to Mr. Billd, Oct. 23, 1830. MSS. Notes, For. Leg.

XXVI. JOINT ACTION WITH OTHER DIPLOMATIC AGENTS INADVISA-
BLE.

§102.

The policy of the United States precludes, as a rule, the appointment
of special diplomatic agents to confer with those concerned in political
movements abroad.

Mr. Forsyth, Sec. of State, to Mr. Kaufman, April 30, 1840. MSS. Dom. Let.

But consultation between the several diplomatic representatives at a foreign
capital, resulting in the assumption of a common attitude in cases of pub-
lic emergency, is not inconsistent with the above rule. Supra, ^^ 61, 67,
68, 68a; infra, § 105.

"It is, of course, neither possible nor desirable to avoid a free inter-
change of opinion between the representative of the United States and
the representatives of other powers upon questions of common concern
arising in foreign capitals. Such free communication is not only ap-
proved, but is especially commended. At the same time care should be
taken to avoid, as far as iwssible, formal conventions in which propo-
sitions are considered, with an understanding or agreement that a de-
cision by a majority of representatives shall commit or bind the repre-
sentative of the United States. A consent on your part to give such
an effect to a decree of a council of representatives would be virtually
a proceeding derogating from the authority of the President, and if
672

ClIAP. IV.] DUTIES AS TO ARCHIVES. [v 103.

npjiiovcMl by liiiii would luivc the .socmiii}.;- but iiiiicul operation to bind
the United States by his own individual act, in diMoj^Mtion of tlu' Con
stitution, which requires that uo engagement shall be made with lorcign
powers other than by treaty solemuly celebrated by the l*resi«lent and
duly ratified by the Senate."

Mr. Seward, Sec. of State, to Mr. Hovey, Feb. 25, 1867. MSS. Inst. I'.-ni. Se«

supra, $ 90.
As to importance of union between diplomatic agents abroad, see 8 Julm Ailain^'

Works, 547, 549.
As to joinder of foreign ministers at Japan and China, see supra, ^i^ G7-Cri.
As to joint action with other powers in respect to affairs in South Aniirica, and

the West Indies, see supra, ^ 57. Tlie objections to such action are statnl

by Mr. Everett, in notes to Count Sartiges and Lord John Rus.sill, ;41vlmi

supra, ^ 72.

XXVII. DUTIES AS TO ARCHIVES.
§103.

" The instructions of this Department to its diplomatic agents abroad
have for a long series of years past strictly prohibited ministers from
retaining for their private information or use copies of any correspond-
ence of record in their legations. This rule has been found necessary,
not oidy because such archives are public property, which no private
person has a right to possess, but also because however great the dis-
cretion of the minister doing so may be during his lifetime, yet, after
his death the instances in which valuable papers in relation to the (con-
fidential intercourse of this Government with foreign states may j)ass
through other hands into unguarded publicity, are not rare."

Mr. Evarts, Sec. of State, to Mr. Tuttle, May 19, 1879. MSS. Doni. Let.

"The following record books should be kept at all missions of the
United States abroad :

"A dispatch-book, into which are to be coi)ied all official commiinica-
tious written by the diplomatic agent to the Department of State.
Press-copy books are not to be considered as permanent records.

"A note-hoolc, into which are to be copied all ollieial coinmndications
written by the diplomatic agent to the Government to wlii.li he is ac-
credited.

"A letter boolc, into which are to be cojued all other ollieial eommnni
cations written by the diplomatic agent. This book should contain tiie
record of his letters to the consular otlicers under his jurisdiction.

"A pa.ssj}ort-booJ{, in w^hich are to be registered all i)assp(U'ts issued or
visaed by the diplomatic agent.

"A miscellaneous record-booh; for the entry of those ()flicial pajiers and
records which cannot conveniently be classified and entered in the rec-
ord books above named— and in this book should be included also
coi)ies of such translations of otlicial j^apers as the diplomatic a-cnl
may forward with his disi)atches to the Dei)artment of State.

"A register of oficial letters received at the Icqation, which shall em-
brace the following information : Name of the writer, number and date
of letter, when received, its import, and remarks thereon, as i)rescnbed
in the form hereto annexed.

S. Mis. 162— VOL. I 43 * ' ^

§ 104,] DIPLOMA TIP AGENTS. [CHAP. IV.

"A register of o-fficial Jettera ncnt from the le(j((tion,Hta,t\ng the date and
import of the letter, and the name of the person to whom sent, a« i^re-
scribed in the form hereto appended.

"A quarterly account-current boolc, in which shall be recorded the ac-
counts of the diplomatic agent and the legation accounts for contin-
gencies.

" When a paper of any description is entered or recorded in either of
the said books, it must be indexed by a reference both to the name of
the author and the subject of the i)aper.

"Instructions from the Department, and all ofhcial or business notes
to the legation, intended to be permanently kept there, shall be indorsed
with a short note of the contents and tiled (not folded), until a suflBcient
number shall accumulate to lorm a volume, when they shall be bound.

"All diplomatic agents are instructed, with a view to facilitate refer-
ence to previous correspondence, to keep in their offices the i)rescribed
registers of all the documents, papers, letters, and books which have
been, or which may be, at any time received, and also of those forwarded
by them on matters connected with their ofScial duties.

" The copied records in the books above prescribed will include pro-
tocols of conferences, notes of official conversations, copies of corre-
spondence, and every memorandum necessary to a full understanding
of the history of the mission.

" Such ministers of the United States as by law are not allowed a
secretary of legation will themselves keep up the record of their lega-
tions. Any such minister who may neglect this duty will be chargeable
with the expense which the Government may incur in consequence of
his neglect.

" The public interest, and the convenience of official intercourse
with diplomatic representatives abroad, require that every successor
to a mission should be thoroughly acquainted with all the directions
that may have been given by this Department to his ])redecessors, and
all that may have been done by them in their official capacity. It is
therefore the im[)erative duty of all diplomatic agents to carefully
familiarize themselves with the records of their missions, and to pre-
serve the archives of their own as well as of preceding terms with the
utmost care for the benefit of their successors in office."

Printed Pers. Inst. Dip. Agents, 188;').

By article 11 of the treaty of 1819 between the United States and
Spain, the Department of State was made the depository of the records
and papers referred to in the article. They should not be delivered to
the claimants, and any law of Congress which should authorize or direct
them to be delivered up would be a violation of the treaty.
2 Op., 515, Taney, 1832.

XXVIII. RKiHT OF I'liOTECTJOX jyD ASYLUM.

§104.

Under this head the privileges of asylum of consuls as well as of dip-
lomatic agents will be considered.

The report of Mr. Livingston, Sec. of State, on Apr. 2, 1832, in regard to refuge
given in 1831 by the United States ship St. Lonis to the Vice-President
of the Republic of Peru and General Miller, will be found in House Ex.
Doc, No. 272, 22d Cong., 1st sess.

674

CHAP. IV.] EIGHT OP PROTECTION AND ASYLUM. [§ 104.

The right of diplomatic asylum in revolutionary times and in revo-
lutionary countries should be indulgently construed.

Mr. Calhoun, Sec. of State, to Mr. Wise, July Iti, 1844. M.'iS. Inst., lirazil.

" A minister in a foreign country is reganled by tho pubUc law as
independent of the local jurisdiction within which he resides, and re-
sponsible for any offenses he may commit only to his own Government.
The same peculiar character belongs, also, to his suite, his family, ami
the members of his household, and in whatever relates to himself or to
them is extended even to the mansion which he occupies. Whether
its asylum can be violated under any circumstances, it is unnecessary,
on this occasion, to intjuire; but there is no doubt whatever that, if it
can be rightfully entered at all without the consent of its occupant, it
can only be so entered in consequence of an order emanating from the
supreme authority of the country in which the minister resides, and for
which it will be held responsible by his Government."

Mr. Buclianan, Sec. of State, to Mr. Shields, Mar. 22, 1848. MSS. lust., Venez.

Though the privileges of asylum in Mohammedan states, as well as
in South America, are more liberally dispensed than in the leading
European states, they should be in all cases carefully guarded.

Mr. Clayton, Sec. of State, to Mr. McCauley, May 31, 1849. MSS. Inst. Barb.
Powers. Mr. Clayton to Mr, Gaines, Oct. 3, 1849 ; Mr. Marcy to Mr. De
Leon, Dec. 23, 1853 ; ibid.

" I was well aware of the custom of the representatives of Christian
powers in the Barbary States to extend the protection of their flags over
many individuals who are not citizentf of their respective countries,
and who cannot be properly considered as officials, such as brokers,
interpreters, &c. But whilst I deem it the duty of the consuls to pro-
tect American citizens, and necessary and useful oflicial persons con-
nected with their consulates, they ought scrupulously and carefully to
abstain from all interference in behalf of individuals who are neither
citizens nor -have any rightful claim to our protection, and the more
especially when such protection is likely to bring the American consul
into any kind of conflict with the rights and prerogatives of the repre-
sentatives of friendly powers."

Mr. Clayton, Sec. of State, to Mr. McCauley, Jan. 14, 1850. MSS. Inst. Barb.
Powers.

Acquiescence by the Government of Chili on former occasions in the
exercise of the hospitality of asylum in its larger sense may preclude
that GoTernment from objecting to the continued granting such hospi-
tality to the same extent. At the same time, if that Government makes
objection to a granting of that hospitality to a particular politi('al refugee,
the minister of the United States, in whose house such refugee is shel-
tered, should advise him that this shelter can no longer be afforded.
Mr. Webster, Sec. of State, to Mr. Peyton, July 2, 1851. MSS. Inst., ChiU.

675

^ 104.] DIPLOMATIC AGENTS. [CHAP. IV

" Neither the hiw of nations nor tlie stipulations of our treaty with
Peru recognize the riglit of consuls to afford protection to those who
have rendered themselves obnoxious to the authority of the Govern-
ment under which they dwell. * * *

" The subsequent course of the governor, in sending to the consulate
and arresting the insurgents, cannot be condemned by this Government.
The national flag was not insulted, nor the national dignity affected,
by this i^roceeding. The former had been unwarrantably used. Under
the treaty it would and should have protected the property of the coq-
sulate and the persons and property of American citizens, but in this
case no such j)lea for its use can be presented. The Government of
the United States would not permit such an abuse of a foreign flag by
a foreign consul to be made with impunity."

Mr. Marcy. Sec. of State, to Mr. Clay, Jan. 24, 1854.. MSS. Inst., Peru.

" This Government will not consent that its consuls in Turkey shall
be denied any privileges in regard to protecting persons not citizens of
the United States which may be enjoyed by the consuls of other nations
who have no special treaty stipulations on the subject. If custom in
Turkey gives to foreign consuls the right of protecting even Ottoman
subjects, it is presumed that this right is limited to such persons as
may be absolutely necessary for the discharge of the consular func-
tions, and must have originated and be tolerated on account of the
difficulty of obtaining persons, not subjects of the Porte, sufficiently ac-
quainted with the Oriental languages. It is obvious, however, that it is
the duty of the consul to exercise this privilege with discretion, and
not to employ any person for the purpose of screening him from piose-
cution for offenses against the laws of the country or any one known
to be reasonably objectionable to the Government."

Mr. Marcy, Sec. of State, to Mr. De Leon, Auj?. 1(5, 1854. MSS. Inst., Barb.
Powers. To the same effect see letter of Mr. Seward, Sec. of State, to ilr.
Hale, Dec. 11, 1866, ibid.; Mr. Fish, Sec. of State, to Mr. Beardsley, Mar. 31,
1873, ibid. ; Mr.Fish to Mr. Jones, Nov. 16, 1876. See also circular of May
1, 1871 ; Mr. Evarts to Mr. Mathews, Mar. 13, 1880, iUd.

A consul of the United States in Nicaragua has no right, as such,
'' under the law of nations to make his dwelling an asylum for persons
charged with crimes or offenses against that Government."

Mr. Marcy, Sec. of State, to Mr. Wheeler, May 11, 1855. MSS. Inst., Am. St.

Violent entrance in a consul's house by soldiers, and misconduct
therein, constitute an international wrong, for which the Government
commissioning such consul is entitled to demand redress.

Mr. Cass, Sec. of State, to Mr. Bigler, June 17, 1859 ; Aug. 16, 1859 ; May 1, 1860.
MSS. Inst., Chili.

During an insurrection in Valparaiso, early in 1859, Mr. Trevitt, con-
sul of the United States, received into his house as an asylum certain
political refugees. His house was subsequently attacked by Chilian
676

CHAP. IV.] RIGHT OF PROTECTION AND ASYLUM. [§ 104

soldiery, the surrender of the refugees effected, and his exequatur
recalled by the Chilian Government. Mr. Bigler, United States minis-
ter at Chili, when reporting these facts, informed the Secretary of State
that " the English consul at Talcahuano had recently given asylum to
a certain number of refugees under circumstances similar to those under
which Consul Trevitt had acted at Vali)araiso, but that the Chilian Gov-
ernment had manifested no dissatisfaction with his conduct." • • •
Information was also given "that the practice on the part of consuls
extending asylum to political refugees is almost generally permitted in
the Pacific Republics, and in none more frequently than in Chili." Mr.
Cass, Secretary of State, then instructed Mr. Bigler that " if this be so,
the existence of such an usage, taken in connection with the statement
you make in regard to the English consul, would go far to induce this
Government to require the restoration of Mr. Trevitt's exequatur."

Mr. Cass to Mr. Bigler, Juno 17, 18')9. MSS. lust. Chili. See Mr. Cass to Mr.
Bigler, Aug. l(i, 18o9, on the refusal of the Chilian Government to recall the
exequatur.

"All Christian nations refuse to the Government of Morocco any right,
power, or control whatever, in any circumstances, over the persons or
property of Christians, or Franks, as they are called, residing in that
Empire."

Mr. Seward, Sec. of State, to Mr. McMath, Api-. 28, 1862. MSS. lost.. Barb.
Powers.

" Every citizen of the United States is required, when in Morocco, to
seek from the consul and have a certificate showing that he is under
the consul's protection. Failing to obtain this he has no right by law
to remain there."

Ihid.

" The President hears with surjmse and regret rumors of abuses of

the privilege of granting protections committed by persons vicariously

exercisin" eonsuhir functions in behalf of this Government within Ilis
* ...»

Imperial Majesty's dominions. Eecent improvements of adninnstration

present some grounds for believing that that privilege might now bo
relinciuished without serious prejudice to the interests of the United
States It is not supposed, however, that in the event of eitlier a radi-
cal change of administration, or of the occurrcjice of religious or other
domestic disturbance in the capital or the provinces, the right of grant-
ing protections as heretofore exercised would be found indispensable
to the safety of citizens sojourning in Turkey. In view of these oppos-
ing considerations the President has determined that you may announce
to the minister for foreign atfairs that the ]t()werof the ministers and of
consuls to grant protection will, until further notice, be restrained so as
to allow them to issue only to persons in the actual service of the United
States. This restriction will not be deemed to have any bearing upon

677

§ 104.] DIPLOMATIC AGENTS. [CHAP. IV.

passports to American citizens granted by this Department or other
proper authority."

Mr. Seward, Sec. of State, to Mr. Morris, Sept. 19, 1864. MSS. Inst., Turkey.

" 1. Consuls may harbor political refugees, but as the law of nations
confers upon them no right to do this, and as the treaty between the
United States and Hayti is silent upon the subject, no sufiBcient cause
of complaint would arise if refugees so harbored were to be taken by
the local authorities from the consular abode.

" 2. The local authorities have an abstract right to forbid the employ-
ment of a foreign naval force to protect the houses of consuls, even in
emergencies such as those to which you refer. That employment may,
however, be justifiable under circumstances similar to those which are
reported at Cape Haytien.

"3. Strictly speaking, the consular flag can only be properly dis-
played over the residence of the consul himself. If, however, he should
think proper to fly it elsewhere, with a view to protect the property of
his countrymen, or property in which they may be interested, he must
do this at the risk of having that emblem disregarded by the foreign
authorities. This Department cannot authorize or direct any such use
of the flag of the United States, but will not censure it unless the act
should formally be complained of by the foreign Government."

Mr. Hunter, Acting Sec. of State, to Mr. Peck, Oct. 4, 186.5. MSS. Inst., Hayti.

"Your painfully interesting dispatch of the 8th of May, No. 3, has
been received. The lawless condition of society in Hayti which you
describe is a subject of grave concern and deep regret. The proceed-
ings by which you remonstrated and reasoned with the Government in
the interest of public peace and safety at Port au Prince are approved.
The Secretary of the Navy, on receiving the first intimation of the
extreme revolutionary disturbances in Hayti, took the necessary meas-
ures for the dispatch of a ship of war to Port au Prince, to be emjiloyed,
i^ necessary, for the protection of the lives and property of citizens of
the United States.

"You request an instruction on the subject of the continuance of the
exercise of the right of asylum by the legation. The question is at-
tended with much embarrassment. The right of a foreign legation to
afibrd an asylum to political refugees is not recognized by the law of
nations as applicable to civilized or constitutionally organized states.
It is a practice, however, which, from the necessity of the case, is ex-
ercised to a greater or less extent by every civilized state in regard to
barbarous or semi-barbarous countries. The revolutionary condition
seemed to become chronic in many of the South American nations after
thf'v had achieved their independence, and the United States, as well
as 1 he European nations, recognized aud maintained the right of asylum
in their intercourse with those Kepublics. We have, however, con-
stantly employed our influence, for several years, to meliorate and im-
678

CHAP. IV.] RIGHT OF PROTECTION AND ASYLUM. [§ 104.

l)iovc the political situation in these Republics, with an earnest desire
to reliu(|uish the right of asylum there. In the year 18G7 we formally
relin<iuishe(l and renounced that right in the Kepublic of Peru. This
(rovernment has also largely modified the exercise of that right among
some of the Oi'iental nations.

''Thus we are prei)ared to accept the opinion you liave deliberately
expressed that it is no longer expedient to practice the right of asylum
m the Haytien Kepublic. Nevertheless, we should not be willing to
lelinquish the right abruptly, and in the midst of the anarchy wliieh
seems to be now prevailing in Hayti, in the absence of matured convic-
tions on your part. Xor do we think it expedient that it should be
renounced by the United States legation any sooner or in any greater
degree than it Is renounced by the legations of the other important
neutral powers. With these reservations, the subject is confidently
left to your own discreet judgment."

Mr. Seward, Sec. of State, to Mr. HoUister, May 26, 1868. MSS. lunt. Hayti;
Dip. Corr., 1868.

"The immunities of an ambassador are not of a personal character.
They belong to the Government of which he is the representative. It
is to be regretted, therefore, that you treated the invasion of your house
and the arrest therein of your servants as a personal offense, to be
atoned for by the simple release of the persons arrested, and a i)rivate
note expressive of regret.

"This act, especially when regarded in connection with a recent
invasion of the commercial agency at St. Marc, and other acts of dis-
respect, and of neglect of diplomatic and international courtesies, is
significant of an intent which should have elicited from you a more
emphatic protest than your unofficial communication to the Secretary
of State, and a demand for more decided redress than that which you
were content to accept."

Mr. Fish, Sec. of State, to Mr. Bassett, March 26, 1873. MSS. Inst. Hayti ; For.
Rel., 1873.

"Your dispatches, numbered 3G4 and 305, of the Stli and VMh ultimo,
respectively, have been received. They relate to the recent disturb-
ances at Port au Prince, and to persons who have sought an asylum
in the legation. It is regretted that you deemed yourself just ified by au
impulse of humanity to grant such an asylum. You have repeatedly
been instructed that such a practice has no basis in public law, and, i>o
far as this Government is concenu'd, is believed to be contrary to all
sound policy. The course of the diplomatic representatives of other
countries in receiving political refugees upon such occasions is not
deemed sufiticient to warrant this Government in sanctioning a simiUir
step on the part of the representatives of the United States. Among
other objections to granting such an asylum it may be remarked that
that act obviously tends so lar to incite conspiracies against Govern-

679

§ 104.] DIPLOMATIC AGENTS. [CHAP. IV.

inents, tbat if persons charged with offenses can be sure of being
screened in a foreign legation from arrest thej^ will be much more apt
to attempt the overthrow of authority than if such a place of refuge
were not open to them.

"Mr. Preston has been here by order of his Government to ask that
you may be directed to set at large the refugees who have sought your
protection. I answered him, however, that though it might have been
preferable that you should not have received those persons, it was not
deemed expedient to comply with his request. I added that if his
Government would apply to you for them, in order that they might be
tried, you would be authorized to give them up, provided the Govern-
ment gives you its assurance that no punishment shall result from the
trial, but that, if convicted, the parties will be allowed, without moles-
tation, to leave the country. If, too, the persons who are with you
should themselves or through you offer to surrender to the authorities
on the same condition, and should it be acceptable, you will dismiss
them."

Mr. Fish, Sec. of State, to Mr. Bassett, June 4, 1875. MSS. Inst. Hayti ; For.
Eel., 1875.

'^The undersigned. Secretary of State of the United States, has the
honor to acknowledge the receipt of the note of the 25th instant ad-
dressed to this Department by Mr. Preston, the minister plenipoten-
tiary of Hayti. It refers to a recent conversation between him and the
undersigned upon the subject of certain Haytians to whom Mr. Bassett,
the United States minister at Port au Prince, had granted an asylum
in his legation. As a result of that conference, an instruction was at
once addressed by this Department to Mr. Bassett, on grounds which
were orally indicated by the undersigned to Mr. Preston. Too short a
time, however, has since elapsed for Mr. Bassett to have carried those
instructions into effect and to have reported to this Department upon
the subject.

"The undersigned acknowledges that it is desirable that the question
which has been raised by the course of Mr. Bassett should be promptly
and satisfactorily settled.

" The undersigned is, however, not a little surprised at that part of
Mr. Preston's note in which he represents that the undersigned had
given him assurances that no United States men-of-war would be or-
dered into Haytian waters. The undersigned is sure that he neither
made any such promise nor used words which could fairlj- be construed
as a pledge of the kind. Pursuant to general orders, naval vessels of
the United States sometimes touch at ports where the lives and property
of citizens may be supposed to be in peril. If any have recently visited
the harbors of Hayti, the undersigned is not aware that they have been
specially ordered thither."

Mr. Fish, Sec. of State, to Mr. PrestoD, June 29, 1875. MSS. Notes, Hayti ;
For. Kel., 1875.

680

CHAP. I V.J RIGHT OF PROTECTION AND ASYLUM. [§ 104.

" I transmit a copy of a uote of the 25tli ultimo, addressed to tliis
De])artiiient by Mr, Preston, the minister of Ilayti accn-ditcd to this
Government. It relates to the asylum wliieh you tliouj;ht projjer to
grant to political refugees in that country, and represents that you liiid
not complied with a request which had been made of you by the (lov-
ernment to furnish it with a list of them. It also says that some of them
were received at your legation with arms and ammunition. As your
dispatches have been silent upon these points, an ex])lanation in regard
to them will be desirable.

" It is presumed that the decisive course which you have thought
proper to adopt in regard to the refugees adverted to has been taken in
full view of your accountability not only to your own Government, but
to that to which you are accredited. Whatever may be our dis])Osition
to receive reasons to palliate or justify your proceedings, it is still in the
power of the Haytian Government to refuse to be satisfied with them.
This is a consideration which should always be borne in mind by a dij)-
lomatic agent. While he should not allow it to att'ect his sense of duty,
he should be well aware of the consequence which may attend its con-
scientious discharge."

Mr. Fisb, Sec. of State, to Mr. Bassett, July 1, 1875. MSS. lust., Hiiyti ; For.
Rel., 1875.

" You are aware that Mr. Bassett, the minister resident of the United
States at Port au Prince, has thought proper to receive into his otlicial
residence certain political refugees. This act on his part has not been
approved by this Department, as it is not sanctioned by public law,
though it is in conformity with precedents in that quarter. The fact,
however, that Mr. Bassett should have thought proper to take the re-
sponsibility of harboring the persons referred to, contrary to the wishes
not only of his own Government, but to those also of that to which he
is accredited, is not conceived to forfeit his right not only to protection
from violence, but also to a continuance of those observances which are
due to the diplomatic representative of a friendly nation. I regret to
state, however, that, according to Mr. Bassett's reports to this Depart-
ment, those observances have, in respect to him and to his legation, been
signally disregarded. lie states that his abode is encompassed by an
armed force, and that during the night especially persons in his neigh-
borhood keep shouting, apparently on puri)ose, to a degree whi^h makes
it impossible fer him or his family to obtain necessary rest. It cannot
be believed that these annoyances are instigated by the Haytian Gov-
ernment, and perhaps it may not be aware that they are practiced.
However this may be, it is expected that tb<\ will at once be discon-
tinued. If this exi)ectation should be <lisai)pointed, it will be regarded
as an unfriendly proceeding on the part of tlie Haytian (loveinment.
Indeed, the demonstrations adverted toand all the circumstances make
it advisable, in the opinion of the President, that a United States mau-

681

§ 104,] DIPLOMATIC AGENTS. [CHAP. IV.

of-war should visit Port au Prince. The Secretary of the Navy will
consequently be requested to order one thither."

Mr. Cadwalader, Acting Sec. of State, to Mr. Prestou, Aug. G, 187.5. MSS. Notes,
Hayti; For. Eel., 1875.

" It is noticed that Mr. Preston has thought proper, in that commu-
nication, to characterize the sanctuary which the minister of the United
States in Hayti has thought proper to extend to certain citizens of that
country as an act performed pursuant to a 'pretended right. As similar
acts have often been exercised by the representatives of other powers,
as well as by that of the United States, with the acquiescence of Hayti,
the epithet referred to may be considered as superfluous.

" The undersigned also regrets to notice a disposition on the part of
Mr. Preston to draw an inference from the views which this Department
has expressed on the general subject which will at least tend to restrict
the course which the Department may think proper to adopt in regard
to it. No such inference can be assented to.

" It is quite probable, however, that, when the present case shall have
been satisfactorily adjusted, this Department may be disposed to re-
ceive and consider any proposition which Hayti may make, looking to
the abolition, by the several Governments represented in that country,
of the practice of granting an asylum to refugees in their resj)ective
legations. The United States cannot, for the present at least, sepa-
ratelj % even by implication, engage to treat upon the subject.

" The undersigned also regrets to observe that Mr. Preston mistakes
the terms upon which, as he was informed, Mr. Bassett had been author-
ized to surrender the refugees in his residence.

"The only condition upon which Mr. Bassett was authorized to make
that surrender was, that the Haytian Government should stipulate not
to punish the refugees, if, after trial, they should be convicted of any
offense, but should, of its own accord, allow them to leave the country,
and should furnish them with passports for that purpose. This condi-
tion did not imply any necessity for the exercise of the right of pardon,
to which Mr. Preston refers in his note. Indeed, the proposition as
stated by that gentleman, would, it is conceived, involve not only an
abandonment of the question of asylum, but practically an assent to its
violation.

"The United States cannot consent to this. The proposition author-
ized through Mr. Bassett was based upon the principle of deferring to
the dignity of Hayti by acknowledging her right to try the refugees, but
also of maintaining the inviolability of the asylum so long as it should
generally be tolerated.

" If the proposition adverted to should, in its spirit and its terms, be
accepted by Hayti, the unpleasant question to which it relates may be
promptly and satisfactorily- settled."

Mr. Cadwalader, Acting Sec. of State, to Mr. Preston. Aug. 17, 1875. MSS.
Notes, Hayti ; For. Rel., 1875.

682

CHAP. IV.] EIGHT OF PROTECTION AND ASYLUM. [§ 104.

" Your dispatches to No. 389 Lave been received. Tliey convey the
unwelcome information that the question in regard to Boisrond Canal
and the other refugees at your residence was still unadjusted. The
hope was entertained that the conditions upon which, l»y the instruc-
tion No. 227 of the 4th of June last, you were authorized to termi-
nate the asylum which had been granted to those persons, would have
been complied with. Those conditions were that if the Haytian (Govern-
ment should apply to you for tliem in order that they might be tried,
you would be authorized to give them up, provided that Government
would engage that no punishment should result from the trial, but that
if convicted they should leave the country. Or if those ixmsoiis should
themselves, or through you, offer to surrender to the authorities on the
same conditions, you were to dismiss them. It does not appear from
your dispatches that that Government had made such an application,
or that it had been made by you. This leaves the subject in a very un-
satisfactory state, and one by no means tending to strengthen those
frieudly relations between the two Governments which it is desirable to
maintain. The irritation of the Haytian Government in regard to the
matter is shown in the recent notes of Mr. Preston, a copy of \a hich (and
of the answers of the Department) is inclosed. It is obviously the i)ur-
pose of that Government, probably actuated by the impression that the
right of asylum in the abstract is not favored by this Govermnent, to
endeavor to have you directed to surrender the refugees unconditionally.
This purpose has not been and will not be accomplished. Still the im-
pression here is strong that in receiving Mr. Boisrond Canal, especially
under the circumstances, you allowed your partialities for that individ-
ual, as well as your general feelings of humanity, to overcome that dis-
cretion which, pursuant to the instruction to you, No. 32, of the 4th of
February, 1870, you were expected to exercise in every case where an
asylum might be granted to political refugees. The Department will
not take into consideration the antecedents of Mr. lloisrond Canal. It
is also bound to disregard the complaints of the existing Uaytiau Ad-
ministration against him, or the reasons therefor. U\ however, as is
understood to be the case, that person had actually been tried and sen-
tenced for conspiracy before he sought refuge in your abode, he nuist
have gone thither to escape punishment and arrest. It is also under-
stood that he and his companions, while on their way thither, resisted
arrest by force of arms. These circumstances certainly present a case
in which it would be unreasonable to expect that GoveinnuMit to ac-
quiesce in the privilege of sanctuary granted by you to Boisrond C;anal.
Consequently that step on your part cannot be approved. Still there
is no disposition to change the conditions upon which you have been
authorized to surrender the refugees, except so far as this may be made
necessary by the fact that Boisrond Canal had actually been tried and
sentenced before he sought an asylum. It is ])rcsunicd that if he were
at large he would not be tried again, though the sentence already passed

683

§ 104 ] DIPLOMATIC AGENTS. [CHAP. IV.

might be carried into eifect. If therefore that Government should allow
him and the others to be embarked for a foreign port, under your super-
vision, the case might thereby be settled.

" It is presumed that the embarkation might take place by the con-
nivance of the Government without any change of the sentence, or that,
if necessary, the sentence might be repealed or so modified that the
embarkation might be carried into effect without hazard or injury to
the interests of the Government. That a proper disposition to this end
should be entertained is much to be desired."

Mr. Hunter, Acting Sec. of State, to Mr. Bassett, Aug. 26, 1875. MSS. Inst.,
Hayti ; For. Eel., 1875.

" The undersigned. Acting Secretary of State of the United States,
has the honor to acknowledge the receipt of the note of Mr. Stephen
Preston, envoy extraordinary and minister plenipotentiary of the Re-
public of Hayti, of the 26th of August last, relative to the asylum
granted by Mr. Bassett, minister resident of the United States at Port
an Prince, to certain refugees.

" The undersigned regrets that Mr. Preston does not deem himself
warranted in recommending to his Government the acceptance of the
proposition on this subject contained in Mr. Cadwalader's note to him
of the 17th ultimo. That proposition was believed to have been as just
to the rights of all parties as the circumstances, fairly considered, would
justify. Mr. Preston urges as a principal objection that, by a decree of
the President of Hayti, bearing date the 2d of May last, Boisroud
Canal, one of the chief personages under the protection of Mr. Bassett,
was declared an outlaw, and that he did not seek refuge with Mr. Bas-
sett until the next day. The decree adverted to may, as Mr. Preston
says, have been issued pursuant to the constitution of Hayti. It can
scarcely, however, be regarded as the result of any other than a mili-
tary trial ; and this in the absence of the accused, if, indeed, any trial,
even of that character took place.

" Mr. Preston offers, at the close of his note, a counter proposition as
a substitute for that of Mr. Cadwalader. It is, that if Boisroud Canal
and the other refugees to be given up to the proper Haytian authori-
ties, the Government of Hayti will commute the penalty denounced by
the decree of the 2d May last, to simple banishment ; and that the ref-
ugees might then at once be embarked.

"The undersigned is not sure that he fully understands this propo-
sition of Mr. Preston. If, however, it be in substance that if the refu-
gees be given up the Haytian Government will engage that they shall
be subjected to no further trial or sentence, but that the President of
Hayti will grant them amnesty, and will allow them to embark without
molestation, on a stipulation or understanding that they are not to re-
turn to Hayti without permission, and that, if they do so return, they
may be held for trial and punishment, Mr. Bassett will at once be in-
684

CHAP. IV.] RIGHT OF PROTECTION AN1> ASYLUM. [§ 104.

structed to this eflect. It is liojx-ii, lljcit'lon', lliaf liijs inicipn-riitioii
of Mr. Preston's ofier may be roinid correct: tliat lie will coiiiiucikI it
to his Governuient; that it will l)e accepted, and tliat this mii)lcasant
question may thus be settled to the satisfaction of rhc i.artics without
weakening the good understanding which it is believed to be their in-
terest to maintain."

Mr. HuntfT, Acting Sec. of State, to Mr. Preston, Sept. 10. 187'.. MSS. Notes,
Hayti; For. Rel., 1675.

"The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of the note of Mr. Preston, envoy
extraordinary and minister plenipotentiary of the Republic of flayti, of
this date. It relates to the political refugees who, for .some time jtast,
have been in the residence of Mr. Bassett, the minister resident of the
United States at Port au Prince.

" It is to be regretted that the embarrassing question which has arisen
upon the subject should not have been sooner adjusted to the nnitual
satisfaction of the parties.

"The undersigned is, however, under the impression that the terms
of adjustment offered in Mr. Preston's note maybe regarded as accept-
able. Mr. Bassett will be instructed accordingly, and the Navy De-
partment will be apprised that at i)resent there is no further occasion
for a man-of-war to visit Hayti."

Mr. Fish, Sec. of State, to Mr. Preston, Sept. '27, 1875. MSS. Notes, Hayti ; For.
Rel., 1875.

It is mutually agreed between Hamilton Fish, Secretary of State, and
Stephen Preston, envoy extraordinary and minister ])leni])Otentiary of
Hayti, that certain political refugees who, for some time i)ast, have had
au asylum in the residence of Mr. Bassett, the minister resident of the
United States at Port au Prince, shall receive from the Ilaytian CJov-
ernment a full amnesty for all offenses up to the time of their departure
from the island ; that Mr. Bassett shall give them up; that they shall
be placed on board a vessel bound to some other country ; that on their
way to the vessel they shall be escorted by a Haytian military force,
and that Mr. Bassett may also accompany them to the vessel. It is to
be understood, however, that the said refugees, or any of them, shall not
return to Hayti without the permission of the (Jovernment of that
Republic.

HAMILTON FISH,

Secrcidni of State.

stp:phen PREsiox,

^nvoij Extraordinary and Minister Plenipofentiari/ dUIayti.
Agreement signed September 27,1875 ; For. Rel., 1875.

"The right of asylum, by which I now refer to the so-called right of
a political refugee to immunity and protection within a foreign lega-
tion or consulate, is believed to have no good reason for its continuance,
to be mischievous in its tendencies, ami to tend to political disorder.

" These views have been frequently expressed, and, while this Gov-
ernment is not able of itself to do away with the practice in foreign

685

§ 104.] DIPLOMATIC AGENTS. [CHAP. IV.

countries, it lias uot failed, on appropriate occasion, to deprecate its
existence and to instruct its representatives to avoid couimittiug this
Government thereto.

" Upon a recent occasion, occurring in the island of Hayti, where, as
represented to this Department, the asylum was forced upon the min-
ister, the Department found it necessary to give a renewed and em-
phatic expression to these views.

" Such being the case, it is deemed fortunate that Mr. Castro was not
compelled to avail himself of the offer you had made."

Mr. Fish, Sec. of State, to Mr. Cashing, Oct. 1, 1875. MSS. lust., Spain.

" The frequency of resort in Spain to the legations for refuge, and
the fact mentioned by you that nobody there disputes the claim of
asylum, but that it has become, as it were, the common law of the land,
may be accounted for by the prevalence of ' conspiracy as a means of
changing a cabinet or a government,' and the continued tolerance of the
usage is an encouragement of this tendency to conspiracy.

" It is an annoyance and embarrassment, probably, to the ministers
whose legations are thus used, but certainly to the Governments of
those ministers, and, as facilitating and encouraging chronic conspiracy
and rebellion, it is wrong to the Government and to the people where
it is practiced — a wrong to the people, even though the ministry of the
time may not remonstrate, looking to the possibility of finding a con-
venient shelter when their own day of reckoning and of flight may
come."

Mr. Fish, Sec. of State, to Mr. Cushiug, Oct. 5, 1875. MSS. Inst., Spain.

" The right to grant asj'lum to fugitives is one of the still open ques-
tions of public law. The practice, however, has been to tolerate the
exercise of that right, not only in American countries of Spanish origin,
but in Spain itself, as well as in Hayti. This practice, however, has
never addressed itself to the full favor of this Government. In with-
holding approval of it, we have been actuated by respect for consistency.

"It is not probable that the practice would ever be attempted in this
country, or, if attempted, could be tolerated, and the discountenance
which the United States extends to the practice is upon the principle of
doing to others as we would they should do unto us, so that when we
acknowledge the sovereignty of a foreign state by concluding treaties
with and by accrediting diplomatic ofl&cers to its Government, we im-
pliedly, at least, acknowledge it as a political equal, and we claim to
extend to all the political prerogatives and immunities which we maj'
claim for ourselves.

" We sincerely desire that it may be universally recognized that for-
eign legations shall nowhere be made a harbor for persons either charged
with crimes or who ma3' fear that such a charge may be made.

" Prominent among the reasons for olyection on our part to giving
asylum in a legation, especially in the Governments to the south of us,
686

CHAP. IV.] RIGHT OF PROTECTION AND ASYLUM. [v^ 104.

is that such a ])ractice obviously tends totlic cncouia^iciiK'Ht ojOfrciiscs
for which asylum may be desired.

"There is cause to believe that the instability of the (lovernintMits in
countries where the practice has been tolerated may in a *yeat dr^^rei-.
be imputed to such toleration. For this reason, if for none other, the
Government of the United States, which is one of law and order an<l of
constitutional observance, desires to extend no encouragement to a prac-
tice which it believes to be calculated to promote and encourage revo-
tionary movements and ambitious plottings.

" Instances, too, have occurred where asylum, having been granted
with impunity, has been grossly abused to the defeat of justice, not
only against political offenders, but also against persons charged with
infamous crimes. Such abuses are plainly incompatible with the sta-
bility and welfare of Governments, and of society itself.

" Temptations sufficient to lead to an abuse of the practice cannot fail
to abound in most persons who may exercise it. Such temptations are
incident to human nature, and in countries where political revolutions
are of frequent occurrence one must be gifted with uncommon self-denial
to be wholly free from their influences.

" It is believed, however, to be sound policy not to expose a minister
in a foreign country to the embarrassments attendant ujjon the practice.
Still, this Government is not, by itself, and independently of all others,
disposed to absolutely prohibit its diplomatic representatives abroad
from granting asylum in every case in which application therefor may
be made.

"We do not, however, withhold from them our views of the practice,
and will expect that, if they do exercise the prerogative, it will be done
under their own responsibility to their own Government. We would
prefer, therefore, not formally to assent to the propositions contained in
the memorandum above referred to without ascertaining the views of
the other Governments concerned in regard to them.

" Some, at least, of those propositions appear to be fair enough ; but
as the circumstances of cases in which asylum may be granted greatly
vary, it would, in the opinion of the undersigned, be preferable, until
an understanding and an approach to ac<!ord of views as to the future
practice in this regard can be had by the other powers, that every such
case should be treated according to its merits, rather than that we should
be fettered in advance by rules which may be found not to be i)racti-
cally applicable or useful."

Mr. Fish, Sec. of State, to Mr. Preston, Dec. II, 1875. MSS. Notes, Hayti : For.
Re]., 1876.

The fact that a fugitive slave in Tangier takes refuge in the house of

an American citizen in that place does not entitle him as a right to

make any claim on the Government of the United States for protection.

Mr. Evarts, Sec. of State, to Mr. Mathews, Mar. 15, 1877. MSS. lust., Barb. St.

687

^^ lf)4."| btM.O^fArtO AOEXTS. [cHAf. IV.

" It is <l('siie<l that om- ol' yonv liist otlicial acts, alter the i)ieseiita-
liotiot' youv cicdcMitial;^ as iniiiister at Madrid, shall be to notify the
minister of state ot His ^lajesty that you are authorized, on belialf of
tbe United States, to take i)art in a friendly conference of foreign repre-
sentatives whicb it is proposed to bold at Madrid for the purpose of
discussing tbe question of the protection extended to native Moors in
Morocco by the diplomatic and consular agents of foreign states resi-
dent in that country.

" In order that you may uuderstandingly take part in that projected
conference, and appreciate with as much exactness as possible the
nature of tbe questions to be brought up before it, it will be necessary
to give you a brief r^sum^ of the facts so far as they appear in the corre-
spondence of this Department, with transcripts of the pertinent papers.

'- On the 14th of June, 1877, Mr. Plunkett, the British charge d'affaires
in Washington, addressed the Department, inclosing a printed extract
from a dispatch from the British minister at Tangier to the Earl of
Derby, with a memorandum of what took place at the meeting of the
foreign representatives at the house of the Moorish minister for foreign
affairs on the 10th of March, 1877. The dispatch of Sir J. H. Drum-
mond Hay, thus referred to, contains various allegations as to the abuses
which have grown up from the practice of giving protection to Moorish
subjects by foreign diplomatic and consular officers, particularly' by
exempting them from the payment of taxes. It was therein stated that
the evil is a growing one, ' more especially on the part of those foreign
officers who represent countries which have no trade and hardly any
residents in Morocco belonging to their respective nationalities.' The
several representatives who took part in that meeting discussed this
question and seem to have admitted the existence of the evil and depre-
cated the practice. * * *

" The matter, however, speedily passed beyond this stage, and its next
phase was a series of meetings held at Tangier, by the foreign repre-
sentatives resident there, for the discussion of various points of admin-
istration and foreign intercourse, among them the question of irregular
foreign protection. The details of these conferences were communicated
to the Department by Mr. Mathews, in his No. 258, of November 0,
1877, with full copies of the proces-verbal of the meetings, and informa
tion of these proceedings was likewise received from the British charge
d'affaires here, under date of October 8, 1877, with accompanying copies
of the correspondence of Sir J. H. Drummond Hay, and extracts of the
pertinent portions of the proces verbal. I have to refer you to these sev-
eral papers, herewith transmitted in copy, an attentive perusal of which
will acquaint you with all the facts in relation thereto in the possession
of the Department, merely citing for your present information, in con-
nection with this instruction, the language used by Sir J. H. Drummond
Hay with reference to the action of Mr. Mathews. He says :

"'The United States consul-general presented lists of thirty-seven

688

Chap, iv.] Riont OP PROTKctioJf and asylum, [§ 104.

persons protected throughout the Empire. On observing; th:it he i)ro-
tected ten native J«'ws as ajj^ents at Tangier, four at Meknas, three at
Fas, and two at Alcassar, I said that it apix'aicd stran^re that the
United States consul shouhl find it necessary to pUice tiiese piMsons <»n
the list of protected natives, when the trade of the United States with
Morocco was almost nil, whereas Great Britain, whicli had two thirds
of the trade of the Empire, did not i)rotect a single native at any <»n<' of
these towns.

'' 'Colonel Mathews declared that Cid Mohammed Bargash had fre-
quently stated to him that he gave no trouble to the Moorish Govern-
ment by these protections.

"'I have to remark that I did not find the list presented by the
United States consul general to his colknigues coriesponded with that
delivered by him to the local authorities.'

" It appears from the reports of the i)roceedings then had, that, al-
tliough the greater part of the demands put forward by the Moorish
Government were agreed to, yet some important questions were left
undecided On account of the objections made by several of the powers-
France, Italy, Portugal, and Brazil.

" Under instructions from his Government the British minister at this
capital brought this circumstance to the attention of this GovernuK-nt
on the 4th of November last, stating that it was thought that a contin-
uance of the discussion Avas not likely to further an agreement upon the
questions left undecided, and that unless th-e Governments concerned
were disposed to send positive instructions to their agents of a nature
to satisfy the Moorish Government, the best prospect of a solution lay
in a reference of the question to a commission or meeting of representa-
tives at some foreign court in which the Moorish Government may be
represented by a delegate or delegates deputed for the purpose, and
suggesting the choice of Madrid for such a meeting. This course was
represented as enabling, among other benefits, the removal of the «lis-
cussion from the hands of those who have hitherto conducted it, and
avoiding any difficulties which may have arisen from personal feelings
or oi)inions, in which view I fully coincide.

"It now appears from a telegraphic dispatch yesterday received from
Mr. Reed, that the Spanish Government has taken the initiative in
bringing about the conference suggested, and looks to the proper rei)re-
seutation of this Government thereat.

"It is, in many respects, desirable that we should be competently
represented at such a conference, and you have accordingly been desig-
nated for the purpose. * * *

"It is sincerely hoped that the anticipation of Lord Salisbury, con-
veyed in Sir Edward Thornton's note of November 4. 1879, may \w well
founded, and that the discussion may ])roceed without any of the per-
sonal feeling which seems unhappily to have characterized its progress
S. Mis. 162— VOL. I 44 689

§ 104.] DIPLOMATIC AGENTS. [CHAP. IV.

at Tangier hitherto. lu i^riiiciple, this Government is cordiallj' io
favor of the adoption by common consent of an equitable rule which
may do away with the excessive and injurious exercise of the preroga-
tive of foreign protection of natives which has grown up under the
shadow of treaty stipulations and native usage, and which is repre-
sented as burdensome to the Moorish exchequer and unjust to its Gov-
ernment, but in reaching a due settlement regard must be had to the
proper maintenance and security of consular establishments in that
country and the necessary employment of natives as guards, interpre-
ters, and servants, and in such capacities as may be essential to the
proper representation and protection of foreign commercial interests.
This Government could not, however, see with complacent iudifier-
ence any proceedings on the part of the proposed conference looking
to an investigation of the past conduct of foreign representatives at
Tangier, and sitting in ex parte judgment on their motives and moral-
ity. * * *

''Ton will make full and prompt report to the Department of the
proceedings of the conference, transmitting the proces-verbal, and
seeking, in your dispatches thereon, to elucidate for the better infor-
mation of the Department, the points which may arise in the discus-
sion.

"It is not understood from the invitation of the Spanish Government
whether a formal full power will be needed by you. One is, however,
transmitted herewith, in case you should find that your colleagues are
required to present other credentials than those of their respective
offices."

Mr. Evarts, Sec. of State, to Mr. Fairchild, Mar. 12, 1880. MSS. Inst., Spain;
For. Eel., 1880.

"The views of this Government as to the right of asylum have long
been well known. You will find them in the correspondence of this
Department with your predecessor, Mr. Bassett. This Government is
well aware that the practice of extraterritorial asylum in Hayti has
become so deeply established as to be practically recognized by what-
ever Government may be in i)ower, even to respecting the premises of
a consulate, as well as a legation. This Government does not sanction
the usage, and enjoins upon its representatives in Hayti the avoidance
of all pretexts for its exercise. While indisposed from obvious motives
of common humanity to direct its agents to deny temporary shelter to
any unfortunates threatened with mob violence, it is proper to instruct
them that it will not countenance them in any attempt to knowingly
harbor offenders against the laws from the pursuit of the legitimate
agents of justice."

Mr. Frelinghuysen, Sec. of State, to Mr. Langston, Dec. 15, 1883. MSS. Inst.,
Hayti.

690

CHAP. IV.] RIGHT OP PROTECTION AND ASYLUM. [§ 104

" It appears that the coirespoiKU'iicc- between yourself and the Colom-
bian foreijin office arose from the refusal of a certain Senor Uribe, a
wealthy Colombiau citizen, to pay his war contributions, which led to
an order for his arrest, and then to his bein^- rescued and concealeil by
the minister of the Argentine liepublic under the assumed right of asy-
lum of his legation. This right the Colombian authorities appear to
have respected ; but the minister of foreign affairs addressed a ciicular
note, a copy of which you inclose, to the representatives of foreign
powers, protesting against the right of asylum lof foreign legations for
the enemies of the Republic, and intimating that, in spite of past tol-
eration of it, the Government might feel itself under the necessity of
claiming the surrender of individuals who had taken refuge in the resi-
dences of ministers, and ' of whom the legitimate authority may for any
motive whatever be in search.'

" In reply to this you inform the minister of foreign atiairs, as you
state, 'upon your own responsibilitj^ before having had the oi)portnnity
to refer it to your Government,' that a public minister ' is entitled to
all the privileges annexed by the law of nations to his i)ublic character,
and among these entire and absolute exemption from local jurisdiction;
also that civil and criminal jurisdiction over those attached to his lega-
tion rests with the minister exclusively, to be exercised by him accord-
ing to the laws, regulations, and instructions of his own Government,
and above all that his house cannot be invaded by order of either the
civil or military authorities of the local Government, no matter how
apparent the necessity therefor.'

" These remarks at any time would require to be materially qualified,
and you will see by the inclosed extract from the new diplomatic; instruc-
tions, a complete copy of which will soon be sent you, what the views
of this D(5partment are as regards the so-called extraterritorial (pies
tions for the guidance of our diplomatic representatives abroatl. It is
generally safer when a minister receives such a communication as
Senor Eestrepo addressed to you not to make it the occasion of argu
ments or of statements which might be construed as committing the
Government, but to acknowledge it and refer it home for instructions.

"As regards the right of asylum, which was the immediate occasion
of the correspondence in question, the new instructions do not permit
it for persons outside of the agent's dipUunatic or i)ersonal household.

'•The w^orks on international law do not sustain the uncpndificd right
of asylum, and the Spanish law forbids it altogether. There are sev-
eral cases cited in the law books where the necessity of claiming the
surrender of individuals who have taken refuge in a minister's resi
dence has been enforced and admitted by other nations.

" In 1726 the Duke of Ripperda, minister of Philip II, took refuge in
the hotel of the British embassador at Madrid, but under the opinion of
the council of Castile was taken by force from the embassador's hotel,

691

§ 104.] DIPLOMATIC AGENTS. [CHAP. IV.

and Great Britain did not claim the right of her embassador to retain
the refugee."

Mr. Bayard, Sec. of State, to Mr. Scruggs, June 16, 1885. MSS. lust., Colombia;
For. Eel., 1885.

" The Government of the United States does not claim for its lega-
tions abroad any extraterritorial privileges of asylum, and consequently
makes no such ckmu in respect of consular offices or private residences
of American citizens, or American merchant vessels in port. If, as a
custoqa, in any country, the practice of asylum prevails, and is tacitly
or explicitly recognized by the local authorities in respect of legations,
consulates, private dwellings,' or vessels of another nationality, the
exercise of the consuetudinary privilege by Americans could not be
deemed exceptional, and if, under any circumstances, refugees tind their
way to places of shelter under the American flag, or in the domicil of
American citizens, we should certainly expect such privileges as would
be accorded were the like shelter under the flag or domicil of another
power. But we claim no right or privilege of asylum ; on the contrary,
we discountenance it, especially when it may tend to obstruct the direct
operation of law and justice."

Mr. Bayard, Sec. of State, to Mr. Thompson, Nov. 7, 1885. MSS. Inst., Hayti.

" This privilege (of asylum, see supra, §§ 90-96), however, does not
embrace the right of asylum for persons outside of the agent's diplo-
matic or personal household.

" In some countries, where frequent insurrections occur and conse-
quent instability of government exists, the practice of extraterritorial
asylum has become so iirmly established, that it is often invoked by un-
successful insurgents, and is practically recognized by the local Govern-
ment to the extent even of respecting the premises of a consulate in
which such fugitives may take refuge. This Government does not
sanction the usage, and enjoins upou its representatives in such coun-
tries the avoidance of all pretexts for its exercise. While indisi)osed
to direct its agents to deny temporary shelter to any person whose
life may be threatened by mob violence, it deen)S it proper to instruct
its representatives that it will not countenance them in any attempt to
knowingly harbor offenders against the laws from the pursuit of the
legitimate agents of justice.

" The liberty of worship is very generally conceded to foreign lega-
tions in countries which maintain a religious establishment diflerent
from that of the diplomatic agent's country. If any diplomatic agent
should assert the right of worship, within his legation, for himself and
those of his fellow-countrymen who profess the same faith as he does, he
would be upheld, within the limits of tlie like privilege conceded in the
country of his sojourn to other foreign legations.

"The powers and duties of diplomatic officers in regard to their
fellow-citizens depend in a great measure ui)on the municipal law of the
United States. Ko civil jurisdiction can be exercised by them over their
•countrymen without express authority of law, or treaty stipulation
with the state in which they reside, and no criminal jurisdiction is per-
mitted to them in Christian states. They are particularly cautioned
not to enter into any contentions that can be avoided, either with their

692

[chap. IV. PKOTECTION OF FRIENDLY FOREIGNERS. [§ 105.

couutryiueu or with the subjects or authorities ot the countrv. They
should use every endeiivor to settle iu an amicable iiiamier all (lisputes
in which their countiynien may l>e coiK^erned, but tlu'V should take no
l)art iu litigation between citizens. They slutuld countenance and j)ro-
tect theui before the authorities ol' the ('ountry in all <-ases iu which they
maj' be injured or ojtpressed, but their etlorts should not be extended to
those who have been willfully guilty of an infraction of the local laws.
It is their duty to endeavor, on all oc(;asions, to maintain and promote
all rightful interests, and to protect all ])rivilegcs that are provided for
by treaty or are conceded by usage. If representations made to the
authorities of the country fail to secure proper redress, the case should
be reported to the Department of State."

Printed Pers. Inst., Dip. Agents, 1885.

The house of a foreign minister cannot be made an asylum for
a guilty citizen, nor, it is api)reheuded, a prison for an innocent one.
And, though it be exempt from the ordinary jurisdiction of the country,
yet, in such cases, recourse would be had to the interposition of the
extraordinary power of the state.

1 Op., 47 Bradford, 1794.

As to privileges of minister's home, see supra, § 96.

The general approval by the South American Government.^, and by
those of San Domingo and of Hayti, of the asylum given by foreign
consuls and diplomatic agents to heads of governments suddenly de-
posed by mobs, may be explained on the grouml that otherwise the
lives of experienced statesmen would be so precarious iu those coun-
tries as to expose government permanency to risks even greater than
those to which it is there at present exposed.

XXIX. MAY EXTEND PROTECTION TO CITIZENS OF FRIENDLY COUN-
TRIES.

§105.

The authority given by this Government to its diplomatic and con-
sular agencies to extend protection to Swiss citizens in places where
there is no Swiss consul, leaves the extension of such protection a mat-
ter of discretion in the officer appealed to.

Mr. Fish, Sec. of State, to Mr. Cubisol, June 27, \^li\. MSB. Inst., Barh. Powers.
See Mr. Fish to Mr. Heap, Oct. 12, 1877, ibid. ; Dec. 11, 1877. ibid.

" In cases of revolution the duties of a minister are not contined to
the protection of his own countrymen, but extend to the citi/.»'ns and
subjects of all friendlv nations left by the politu-al events without a
representative. The government of Miramou having, m 1N)1>, revoked
the exequatur of the American consul at Mexico, because the I nited
States had recognized President Juarez, he asked the interposition
of the British minister for protection from the dc facto authorities lor
the persons and propertv of Americans. This protection having been
withheld, Mr. Cass, in instructing Mr. Dallas, May lli, 1S..:», to bring
to the notice of the British Government the cour.se ot its minister. sa\s:
'In countries in a state of revolution and during periods ot i.ul)lic ex-

693

§ 105.] DIPLOMATIC AGENTS. [CHAP. IV.

citement it is the practice of moderu times for the foreign represeuta-
t'ves lesiding there to interpose by the exertion of their influence for
the protection of the citizens of friendly powers exposed to injury and
danger, and left without any minister of their own country to watch over
them. The President would not hesitate to visit with marks of his dis-
])leasure any American minister who shouhl have it in his power to af-
ford protection to the persons or property of citizens of a friendly nation
l)laced iu peril by revolutionary commotions, and having no national
representative to appeal to, should he fail to exert his influence in their
behalf.'"

Lawrence's Wheaton (ed. 1863), 373, 374.

" Soon after the existing war broke out in Europe, the protection of
the United States minister in Paris was invoked in favor of Xorth Ger-
mans domiciled in French territory. Instructions were issued to grant
the protection. This has been followed by an extension of American
protection to citizens of Saxony, Hesse, and Saxe-Coburg, Gotha, Co-
lombia, Portugal, Uruguay, the Dominican Kepublic, Ecuador, Chili,
Paraguay, and Venezuela, in Paris. The charge was an onerous one,
requiring constant and severe labor, as well as the exercise of patience,
prudence, and good judgment. It has been performed to the entire
satisfaction of this Government, and, as I am officially informed, equally
so -to the satisfaction of the Government of North Germany."
President Grant, Second Annual Message. 1870.

For details of aid rendered through Mr. Washhurue, minister of the United States
in Paris, to Germans in Paris in August, 1870, see Mr. Washburne to Mr. Fish,
Aug. 15 and Aug. 22, 1870, and other papers forwarded with President
Hayes' message of Feb. 6, 1878.

" I was glad to know that the Department coincided with Mr. Ban-
croft and myself in the opinion that all these expenses (those for
the relief of Germans in Paris during the siege) should be paid by the
United States. It would certainly have been unworthy of a great Gov-
ernment like ours to permit itself to be paid for hospitalities extended
to the subjects of other nations for whom our protection had been
sought."

Mr. Washburne, minister at Paris, to Mr. Fish, Nov. 18, 1870. MSS. Dispatches,
France. Documents attached to President Hayes' message of Feb. 6, 1878.

"You are aware that Monseigneur Darboy, the archbishop of Paris,
was seized some time since, hj order of the Commune, and thrust into
prison to be held as a hostage. Such treatment of that most devout
and excellent man could have but created a great sensation, particularly
in the Catholic world. On Thursday night last I received a letter from
Monseigneur Chigi, archbishop of Myre and apostolic nuncio of the
Holy See, and also a communication from Mr. Louoner, canon of the
diocese of Paris ; Mr. Lagarde, the vicar-general of Paris, and Messrs.
Bourset and AUain, canons and members of the metropolitan chai)ter
of the church of Paris, all making a strong appeal to me, iu the name
of the right of nations, humanity, and sympathy, to interpose my good
offices iu behalf of the imprisoned archbishop. I have thought that I
should have been only conforming to what I believed to be the policy
of our Government, and carrying out what I conceived to be j'our wishes

694

CHAP. IV.] PROTECTION OF FRIKNDLY FOUKIGNEUS. [§ lOr).

under the ciieinnstaiices, by coiiiplyiuj; with the request of the m^utU--
men who have acUhessed me. I, therefore, early tliis nioniinj; put my-
self in communication with General (.'Inseret, wiio seems, at the present
time, to be the directing- man in alfairs here. J told him that I applied
to him not in my diplomatic capacity, but simi)ly in the interest of trood
feelin.i;- and humanity, to see if it were not possil)le to have the arch-
bishop relieved from arrest and confinement, lie answere«l that it was
not a matter within his jurisdiction, and however much he would like to
see the archbishop released, he thought, in consideration of tiic state of
affairs, it would be impossible. lie said that he was not arrested for
crime, but simply to be held as a hostage, as many others had been.
Under the existing circumstances he thought it would lie useless to take
any steps in that direction. I, myself, thought the Commune would not
dare, in the present excited state of public feeling in l*aris,to reh'ase the
archbishop. 1 told General <Jluseret, however, that I must see him to
ascertain his real situation, the condition of his health, and wiiether he
was in want of anything. He said there would be no objection to that,
and he immediately went with me, in person, to see the procureur of the
Gommune; and upon his application I received from the ])refect a per-
mission to visit the archbishop freely at any time. In company with my
l)rivate secretary, Mr. McKean, I then went to the Mazas prison, where I
was admitted without difficulty, and being ushered into oneof the vacant
(;ells the archbishop was very soon brought in. I must say that 1 was
deeply touched at the appearance of this venerable man. With his
slender i)erson, his form somewhat bent, his long beard, for he has not
been shaved ajjparently since his confinement, his face haggard with
ill-health, all could not have failed to have moved the most indilferent.
I told him I had taken great pleasure, at the instance of his fiiends, in
intervening on his behalf, and while I could not })romise myself the
satisfaction of seeing him released, I was very glad to be able to visit
him to ascertain his wants, and to assuage the cruel position in whicli
he found himself. He thanked me most heartily and cordially for the
disi)osition I had manifested toward him. I was charmed by his cheer-
ful si)irit and his interesting conversation. He seemed to appreciate
his critical situation, and to be prepared for the worst. He had no word
of ])itterness or reproach for his persecutors, but on the other hand re-
marked that the world judged them to be worse than they really were.
He was ])atiently awaiting the logic of events and praying that Provi-
dence uiight find a solution to these terrible troubles without the further
shedding of human blood."

Mr. WaHlibnrne, minister at Paris, to Mr. Fish, Apr. 23, 1871. MSS. Dispatclios,
France. Doc. accompanying President Hayes' message of Feli. 6, IrtTH.

" He was taken from this cell a little before 8 o'clock on Wednesday
evening, the 24th ultimo. The cur^ 6f the Madeleine, the Abbe l)e-
guerry, the Senator Bonjeau, and three other distinguished hostages
were taken from their cells in the same prison at the same time, into
the court of the building, and all were placed against the wall, which
iii(;loses the somber edifice of La Eocpiette. The archbishop was jjlaced
at the head of the line, aud the fiends who murdered him with their
knives had scratched a cross upon a stone in the wall at the very place
where his head must have touched at the moment when the fatal shots
were fired. He did not fall at the first volley, but stood erect, calm,
and immovable. Before the other discharges came which launched him
into eternity he crossed himself three times upon his forehead. The

695

§ 106.] DIPLOMATIC AGENTS. [CHAP. IV.

otlier victims Ml together. The marks of tlie bullets, made upon the
wall as they passed through their bodies, were distinctly visible. The
archbishop's body was afterward mutilated, his abdomen being cut
open. All the bodies were then put into a cart and removed to P^re la
Chaise, which is but a few squares off, where they were thrown into
the comujon ditch, from which they were happily rescued before decom-
position had entirely taken place. Eeturning from La Koquette, I
came by the 'Archevicbe,' where the body of the archbishop was lying
in state. He was so changed that I should scarcely have known him.
Thousands and thousands of the people of Paris were passing through
the palace to look for the last time uj.on him who was so endeared to
them by his benevolent acts, his kindly disposition, and his love of the
poor and the lowly. In all of the six or seven interviews I had with
the arclibishop in the prison, except the last, I always found him cheer-
ful, and sometimes even gay, and never uttering oue word of complaint.
No man could be with him without being captivated by his cheerful
and Christian spirit and enlightened conversation. The archbishop
was learned, accomplished, and eloquent, and was a most liberal man
in his religious and political sentiments. He met his fate with the firm-
ness of a Christian martyr, and all generous hearts will join in a tribute
of mourning."

Same to same, May 31, 1871 ; ihid.

That a consul cannot use his position to become a means of commnuicatiou
with an enemy of the countrj^ to which he is accredited, see infra, § 119.

XXX. AVOIDANCE OF POLITICAL INTERFERENCE ENJOINED.

§ 106.

The alleged course of Mr. Gouverneur Morris, when in France, in
rendering advice and support to the reactionary party, was the cause
of much embarrassment to President Washington.

'' He [the President] said he considered the extracts from Ternant
very serious, in short, as decisive ; that he saw that Gouverneur Morris
could no longer be continued there consistent with the public good ;
that the moment was critical in our favor, and ought not to be lost;
that he was extremely at a loss what arrangement to make. I asked
him whether Gouverneur Morris and Pinckney might not change places.
He said that would be a sort of remedy, but not a radical one. That if
the French ministry conceived Gouverneur Morris to be hostile to them ;
if they would be jealous merely on his proposing to visit Loudon, they
would never be satisfied with us at placing him at London permanently."

Conversation between Mr. Jefferson, Sec. of State, and President Washington,
Feb. 20, 1793. '2 Randall's Life of Jelferson, 116. See further, for criticisms
ou Morris's course, 1 John Adams' Works, 500; 3i6i(Z.,219, 320; 9 ihid. 307.

As to embarrassments arising from Mr. Gouverneur Morris' active participation
when abroad in European politics, see Mr. Vaughan, in Monroe MSS., Mem.
of 1826. MSS. Dept. of State.

For Gouverneur Morris' correspondence in Paris, in 1792-93, see 1 Am. St. Pap.
(For. Kel.), 312, 329.

Mr. Monroe's course as minister to Paris in 1794 was severely criti-
cised at the time by the Federalists on the ground that it was unduly
conciliatory to France. See, as to Mr. Monroe's course in other respects,
infra, §§ 107, 150?> ; supra, § 85. We must remember, however, that
Mr. IMonroe's instructions, which were drawn by Mr. Eandolph, as Sec-
retary of State, required him to take every step to conciliate the yevO'
696

CHAP. IV.] POLITICAL INTEL FKKENCE PUOHIBITED. [vN 106.

Jntionary autiioritics who were at (lie lime ilie de facto (lovenmient of
France, and that liis j^eneious syinpatliies with that movernent were
well known at the time of hi.s aiJpointment. In no point in this ies|)ecr
(lid Mr. Monroe ontstep Lafayette; and of Lafayette's course (ieneral
Wasliinstoii wrote letter after letter of approval. General \Vashin;:ton
at that i)eriod of his administration souj;lit to t)alance parties amon^--
his diphjniatic ajj^eiits in the same way that he son<;ht to balance paT-
ties in his Cabinet. Such bein^- tlie case, iiothinj;- was more natural
than that he should have sent to France Mr. Mcuiroe, whose attach-
ment to Lafayette and to the new movements in France was well
known, whde Mr. Jay, whose French Iluouenot descent pive him a
l)eculiar dislike to France, while his conservatism led iiim to dinjr with
reverence to the English constitution, was sent to En.^land. It should
also be rememb'^red that, as the lecords of the Department show, Mr.
Pickering, who succeeded Mr. lvandol[)Ii as Secretary, left Mr. Monroe,
during the most critical period of his mission, without instructions. It
was natural that Mr. Monroe should have felt that he wa-; thus lelt to his
own judgment; and there is no doul)t that his judgment, atfected as it
naturally w^as by his enthusiastic belief that the Fn-nch revolutionary
movement tended not merely to liberty but to safe government, was that
he should return with ardor the ardent welcome with which he was re-
ceived. Nor even in his addiess to the French convention, which was
at the time so much blamed for the exuberant fjiendliness with which
it abounded, do we find anything in the way of conciliation that had
not the exam])le of General Washington {siqyra, § 47«), and has not
been at least equaled by our ministers in England in more recent days.
Nor can Mr. Monrce be justly charged with any deep-seated prejinlices
against England which disabled him Irom acting fairly as a negotiator
with France. Not more than six years after his mission to Fiance he
was sent by Mr. Jefferson to negotiate, in connection with Mr. Finkney,
a treaty with England; and the treaty which they agreed (Ui was hvld
back from the Senate b^' Mr. Jetferson on the ground that the concessions
it made were too liberal. {Infra, §§ 107, L0()/>.) Even alier the war of
1812, when the burning of Wasliington by the Ih-itish was, to say the
least, not calculated to increase the kindly feelinu-s of Mr. Madison's
Cabinet to Great Britain, v.e hnd ^Ir. ?kIonroe, as Secretary of State, and
afterwards as President, pursuing towards Great Britain a course whose
moderation ami courtesy no one questioned; and, as aj)pears by his pa-
pers on tile in the Department of State, h<^ was can ful to insist on exam-
ining the documents sent to England by Mr. J. Q. Adams, as Secretary of
State, for the purpose of striking from them acerbities in which .Mr.
Adams was sujtposed to have a temlency to indulge in that j)articularcor-
respondence. It would be diOicult, taking .Mr. .Monroe's whole history in
consideration, to fasten on anything in his conduct in Paris in 175»t which
is inconsistent with his duties as the minister of a neutral jtower.

Mr. Monroe's addioss to tln^ l-'reiicli DiiTitory mi Dec. ;iU, ITKC, on iiifst-nf iii>:

his letter of recall, with the reply ot the Direetory, are given in (nil In
1 Am. St. Pap. (For. Eel.), 747, and is noticed siijira, ^ fro.
Mr. Monroe's letter to the Secretary of State, of Sept. ic, 171>5, in reply to the

censures of his course by the Department, is given in full in 1 .Km. St.

Pap. (For. Rel.), 742.
As to the embarrassments of the mission of the United States in France iu

1708, consequent on the attempts of Talleyrand to discriminate between the

ministers on the basis of their jtarty relations, see '2 Life of <ierry, liK), /.

Infra, ^ U-^, ff.
As to Genet's interference iu politics, see sujira, ^ 79, 84.

097

§ 106.] DIPLOMATIC AGENTS. [CHAP. IV.

Ill 1804 Yrnjo, minister from Sj)ain, was (^liajord with the attempt to
purchase the insertion in a ne\vs|ia])er in Philadelphia of an aiticle de-
fending the ])osition of Spain and critieisinii- the adminisli-ation. He
re])lied that such an act was not nnusnal in (^liplomacy. that there was
no attempt to interfere with the domestic aftaiis of the United Stat(^s,
that it ^as simply issninj^' a document expository of the views of his
Government. I'his not beino- regarded as an adetptate delense, keep-
ing the characterof the article in view, his recall was asked for. Yrujo,
however, declined to leave his post, and used ofi'eiisive language
towards the United States. (See supra, § <S4.) Mr. J. Q. Adams, ui)oii
this action, introduced into the Senate a bill giving the President au-
thority to order toreigu ministers to leave the country at his discretion ;
a measure, however, which was not jiressed to a vote.

Explanations of the reijuest for Yrujo's recall, based on his interference
with i)olitics in Philadelphia as well as his insulting tone to the Gov-
ernment, are found in instructions by Mr. Madison to Mr. Pinckney of
April 10, 1.S04, and by Mr. Madison to Mr. Monroe of May 23, 180.3.
On January 20, 1807, Mr. Madison informetl Mr. Erving that unless
Yiujo should leave the country extreme measures would be necessary
to remove him; and a statement was inclosed (v\hich, however, cannot
now be found) giving the details of his misconduct. On May 1, 1807,
j\lr. Madison informed IMr. Erving that Yrujo had announced his de-
j)arture, but had made no preparations to leave; and on October 18,
1807, his continued stay, with its incidents of annoyance to the admin-
istration, is announced by Mr. Madison to Mr. Erving, though it is
mentioned that Foronda was then received as charge d'affaires. No
note of Yrujo later than February 6, 1800, is on file in the Depart-
ment. (As to Yrujo, see further §§ 84, 94, 107.)

• As to Cobbett's attack on Yrnjo see Wliart. St. Tr., 322.

"There is reason to believe that Yrujo (the Spanish minister) has
worked against us with all his might, seeking to advance himself by
flattering the prejudices of his Government, instead of consulting its
oblig^itious or its true interest. He behaved so badly as to require the
recall signified in my public letter. (Charles) Pinckney's recall has been
asked by the Spanish Government, and a letter of leave goes to him."

Mr. Madison, Sec. of State, to Mr. Monroe (confidential), Nov. 9, 1804. 2 Madi-
son's Writings, 209.

The intercepted letter of Mr. Onis, Spanish minister, on ])o]itical parties in
the United States, dated Jan., 1811, is given iu3 Am. St. Pap. (For. Kel.), 404.

Mr. Van Buren's message of Feb., 1838, containing a translation of a pamphlet
published in Spanish by Mr. Gorostiza, previously minister from Mexico
to the United States, before his departure from the United States, with cor-
respondence relative thereto, is given in House Ex. Doc. No. 190, 2.3th Cong.,
2d sess.

" The plain duty of the diplomatic agents of the United States is
scruj)ulously to abstain from interfering in the domestic politics of the
countries where they reside. This duty is specially incumbent on those
who are accredited to Governments mutable in form and in the persons
by whom they are administered. By taking any open ])art in the
(Jomestic affairs of such a foreign country they must, sooner or later,

693

CHAP. IV.] OFFICIAL INTERCOURSE. [§ 107.

render themselves obnoxious to the Exceutivc ;mtlioiity. \vlii»-!i r.iiii .w
fail to impair tbcir nsofnlncss."

]Mr. Hiicluuian, See. of .Stiitc, to Mr. SIiIcI.Ik, Aiij;. 7, Ih.Ih. M.^.S. IhhI., V. h. /.

The duty of diplomatic representatives of the Unit<Ml States in forcifrn
countries in times of in.surreotion, is s(;rui)ulously to avoid intfrliTcncc
in the stiuiiyle, and toreluseto acknowledjie insur^ienl autliorilics until
permanently established.

Mr. Marcy, Sec. of Sf at<!, to Mr. Wheeler, Nov. «, 18.^)5. MSS. Inst., Am. St.
Mr. Seward'H report of Dec. 29. 18(i'J, on the "alleged interference of our min-
ister to Mexico iu favor of the French," is given in House Ex. Doc. No. 23,

:37th Coug., ;}d sess.

"One of the essential qualifications of a diplomatic a^ent is to observe
at all times a proper reserve in regard to the aflCairs of his Govcrniiicnt;
and the knowledge ot these aflairs, possessed by persons belong ng to
the legation, must be regarded as confidential.

"It is forbidden to diplomatic agents abroad to participate in any
manner in the political concerns of the country of their residence; and
they are directed especially to refrain from public expression of opin-
ions upon local, political, or other questions arising within their Juris-
diction.

"It is deemed advisable to extend a similar i)rohibition against i»ul)lic
addresses, except upon exceptional festal occasions in the country of
ofiicial residence. Even upon such occasions the utmost caution must
be observed in touching upon political matters.

"■The statute further forbids diiilomatic and consular officers from
recommending any i)erson at home or abroad for any emi)loym' nt of
trust or profit under the Governments to which they are accredited.
This ])rohibition against recommendation for office is hereby extended
to oflices under tlie United States; it does not, however, prevent a
diplomatic agent from recommending any per.son whom he may deem
suitable and competent to fill a subordinate office in or under his own
mission."

Printed Pers. lust.. Dip. Agents, 1885.

As to protection by consuls, see infra, ^ 122.

XXXI. COURTESY, FAIRNESS, AND SOCIAL CONFORMITY EXPECTED.

(1) Official intercourse.

§ 107.

"Etiquette, when it becomes too glaring by attectation, imimses no
longer either upon the populace or ui)on the courtiers, but becomes
ridiculous to all. This will soon be the case everywhere with resjject

to American ministers. To see a minister of such a state as and

assume a distant and mysterious air towards a minister of the

United States, because his court has not yet acknowledged their inde-
pendence, when his nation is not half opial to America in any one attri-
bute of sovereignty, is a spectacle of ridicule to any man who sees it.

"1 have had the honor of making and receiving visits in a private
character from the Spanish minister here, whose behavior has beeu

C99

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

polite enough. He was pleased to make rae some very high compli-
ments upon our success here, which he considers as the most important
and decisive stroke which could have been struck in Europe."

Mr. J. Adams to Mr. Livingston, Apr. 23, 1782. 7 John Adams' Works, 574.

•'The Comte Sarsfield began, as usual, when we were alone, to give
mo a lesson of etiquette; this is a trait in his character; no man tuore
attentive to the rules of ceremony and formality; no man more precise.
He says that when I made an entertainment I should have placed the
and)assador of France at my right hand and the minister of Spain at
my left, and have arranged the other princii)al personages; and when
I rose from the table, T should have said: 'Messieurs, v^oudriez vous,'
&c., or 'Monsieur le Due, voudriez vous,' &c. All this, every one sees,
is a la Frangaise; but it is very little regarded here, and it was because
it is generally neglected here that I neglected it. But the Comte, in
every affair of dress, billets, rank, &c., has, from my first acquaintance
with hnn, ever discovered such a minute attention to little circum-
staiu;es. How is it possible to reconcile these trifling contemplations
of a master of ceremonies with the vast knowledge of arts, sciences,
history, government, «&c., possessed by this nobleman? A habit of
linng in the world, however, is necessary, a facility of living with men —
Fhabitude de vivre avec les hommes.

"It is the fashion among the Dutch to arrange all the company by
putting a card with the name of each gentleman and lady upon the
napkins in the plate. This I never saw practiced in France; indeed,
they attend but to one person in France; the feast is made in honor of
one person; that is the ton. Mr. Visscher, being told by the count
that he and I were to dine tomorrow with General Van der Dussen,
appeared surprised, and said that the general, although he had dined
with me and rode with me on horseback, would not have dared to have
invited me, if he had not met me at M. Boreel's."

Jolm Adams' Diarj-, Oct. 2, 1782. 3 John Adams' Works, 276.

" Ranks, titles, and etiquettes, and every species of punctilios, even
down to the visits of cards, are of infinitely more importance in Europe
than in America, and, therefore. Congress cannot be too tender of dis-
gracing their ministers abroad in any of these things, nor too determined
not to disgrace themselves. Congress will sooner or later find it neces-
sary to adjust the rank of all their servants with relation to one another,
as well as to the magistrates and officers of the separate Governments.

"For exan)i)le, if, when Congress al)Olished my commission to the
King of Great Britain and my commission for peace, and issued a new
commission ior peace in which they associated four other gentlemen
with me, they had placed any other at the head of the commission they
would have thrown a disgrace and ridicule upon me in Europe that I
could not have withstood. It would have injured me in the minds of
friends and enemies, the French and Dutch, as well as the English.

" It is the same thing with states. If Mr. Jay and I had yielded the
punctilio of rank, and taken the advice of the Count de Yergennesand
Dr. Fra!d<lin, by treating with the English or Spaniards, before we
were put v\]nni the equal footing that our rank demanded, we should
have sunk in the minds of the English, French, Spaniards, Dutch, and
all the neutral powers. The Count de Yergennes cert;:inly knows this.
If he does not, he is not even a European statesman. If he does know
it, what inference can we draw but that he means to keep us dow n if

700

CHAP. IV.] OFFICIAL INTERCOURSE. [§ 107.

he can ; to keep liis hand under our chin to piev( nt iis fVoiii druwninf^,
but not to lift our beads out of water."

Mr. J. Adams to Mr. Livingston, Nov. 8, 1782. 8 John Adarua' Works*, 3.

" He (the Duke of Dorset) then toUl nie I must be in London time
enough to pay my respects to the King on tlie 4th of June, his birth-
day : that to that end I must carry over from hen(*e a tine new coat,
ready-made, for that it was a rule of etiquette there for everybody who
went to court to have new clothes upon that day and very ri-Ii ones,
and that my family must be introduced to tlie Queen. I told him I was
sorry to hear that, but that 1 hoped it was not indispensabh% for that
as at the court of Versailles the families of ambassadors only were re-
quired to be presented, and ministers i)lenipotentiary and envoys had
their option, my family had chosen to avoid it here for many reasons.
He sai^l it was true that here the etiquette required oidy the presenta-
tion of ambassadresses, but in England it was otherwise, and the ladies
and daughters of all ministers must be presented to the (^ueen.

"I hope, sir, you will not think this an immaterial or a tritling con-
versation, when you consider that the single circumstance of i)resenting
a family at court will make a diflerence of several hundred pounds stiM-
ling in my inevitable annual exi)enses. This is not the first serious lect-
ure I have had upon the subjects of etiquette, and even dress. I have
formerly related to you in conversation another much more grave, which
I had tive years ago from the Count de Vergennes. 1 believe I have
also repeated to you similar exhortations made to u)e even by the best
patriots in Holland. There is a certain ai)pearance in i)roi)ortion to
rank which all the courts of Europe make a point of exacting from
everybody who is presented to them."

Mr. J. Adams to Mr. Jay, May 13, 1785. 8 John Adams' Works, 2')0.

" There are a train of other ceremonies yet to go through in presen-
tations to the Queen and visits to and from ministers and ambassadors,
which will take up much time and interrupt me in my endeavors to ob-
tain all that I have at heart — the objects of my instructions. It is thus
the essence of things is lost in ceremony in every country of Europe.
We must submit to what we cannot alter. Patience is the only rem-
edy."

Mr. J. Adams to Mr. Jay, June 2, 1785. 8 John Adams' Works, 259.

As to oflScial "etiquette" see, further, 3 John Adams' Works, 27t;, lUMi; 7 ibid.,
578; 8 ibid., 3, 4, 39, 250, 251, 259, 3G7, 480, 489, 490.

"Every one who has any knowledge of my manner of acting in pub-
lic life will be persuaded that I am not accustomed to impede the dis-
patch or frustrate the success of business by a ceremonious attention to
idle forms. Any person of that description will also be satisfied that I
should not readily consent to lose one of the most imjjortant functions
of my office for the sake of preserving an imaginary dignity ; but, i)er-
haps, if there are rules of proceeding which liave originated from the
wisdom of statesmen, and are sanctioned by tin' common consent of
nations, it would not be i)rudent for a young state to dispense with
them altogether, at least without some substantial cause for so doing.
I have myself been induced to think, possibly from the habits of ex-
perience, that in general the best mode of conducting negotiations, the

701

§ 107.] DIPLOMATIC AGENTS. [cHAP. IV.

detail and progress of which might be liable to accidental mistakes or
unintentional misrepresentations, is by writing. This mode, if I was
obliged myself to negotiate with any one,* I should still pursue. I have,
however, been taught to believe that there is in most polished nations
a system established, with regard to the foreign as well as the other
great Departments, which, from the utility, the necessity, and the rea-
son of the thing, provides that business should be digested and pre-
pared by the heads of those Departments."

President. Washingtou to Count de Moiistier, May 25, 1789, 10 Washington's
Writings, 9.

"Upon the whole, it was thought best to confine my invitations to
official characters and strangers of distinction. This line I have hitherto
pursued. Whether it may be found best to adhere to it or depart
from it, must in some measure be the result of experience and investi-
gation."

President Washington to Mr. Stuart, July 26, 1769. 10 Washington's Writ-
ings, 19.

" To you, sir, it will be unnecessary to undertake a general delinea-
tion of the duties of the ofiBce to which you are appointed. I shall,
therefore, only express a desire that they may be constantly exercised
in that spirit of sincere friendship which we bear to the English nation,
and that in all transactions with the minister his good dispositions becon-
ciliated by whatever in language or attentions may tend to that effect.
With respect to their Government or policy, as concerning themselves
or other nations, we wish not to intermeddle in word or deed, and that
it be not understood that our Government permits itself to entertain
either a will or opinion on the subject."

Mr. Jefferson, Sec. of State, to Mr. Pinckuey, July 11, 1792. 2 Randall's Life of
Jefferson, 59.

Mr. Genet's note of September 18, 1793, to Mr. Jefferson, giving his
complaints of his treatment by the Administration, is in 1 Am. St.
Pap. (For. Itel.), 173. Of his treatment by President Washington he
complains as follows : " I will tell you, then, without ceremony, that I
have been extremely wounded, sir : 1st. That the Piesident of the
United States was in a hurry, before knowing what I had to transmit
to him on the i)art of the French Republic, to proclaim sentiments on
which decency and friendship should at least have drawn a veil. 2d.
That he did not speak to me at my first audience but of the friendshij)
of the United States towards France, without saying a word to me,
without announcing a single sentiment, on our revolution — while all the
towns, from Charleston loPhiladcl])liia, had made the air resound with
their most anh-nt wishes for the French Pepublic. 3d. That he had
received and admitted to a private audience, before my arrival, Noailles
aiul Talon, known agents of the French counter-revolutionists, who
hiive since had intimate relations r-ith the members of the Federal
Government. 4tli. That this Fust Magistrate of afree people decorated
his parlor with certain medallions ot " Capet '? and his family, which

702

CHAP. IV.] OFFICIAL INTl'RCOURSE. [§107.

served iit Paris as sifznals of rallyiiij:." A scries ofotlicr sjx'cificatioiis
followed, relative to the iiiteriialioiial ruliiijis of llic Admiiiistial ion.

As to the inedallioi) ot ''(Japet," it uv.iy he noticed Ihat full lcn;:lh |>i(;-
turcsof Louis XVI and .Marie Ahtoinctlc, i)resi'nlcd to('on;:rcss al Ihe
close of the American IJevolntion, ivinaine(l jiiinj; on the walls ol'l.'on-
^ress at Philadel])hia until after the iMench revolution. They were
then, accordinji,- to a letter of Mr. E. Thornton, an attacne of tiie iJriiisli
lepition, (Bland-Burftess papers, L'3!S,) dated .Alarch 0, 17M2, [jmhahlv
from conii)laints such as those made aV)ove, "coveied with a «'urtain."
i\lr. Thornton goes on to say : " I don't, know whether J mentioned to
you ibrmerly that the key of tlie Bastile, given to a certain great man
here (^^'ashillgton) by Lafayette, is hung ui) in a glass fiame in the
juincipal room of the great man's house with an engraving of Louis
XVI, Le pafroile lioi dcs Fyan^-ais, o})posite. In the drawing room of
Mr. Jefferson there are three l)usts — of Fianklin. Paul dones, and La-
fayette — three gentlemen, the lirst of whom had talents without viitiie,
the second deserved hanging, and the last, not imi)robal)ly, may meet
the same fate." Nodoubt the picture of "Capet'' in Washington's pa: lor
which gaAe oftense to the Frenchmen in Septem'oer because it was
thereat all, was a companion to that which gave offense to the I-^nglish-
iiian in June because the inscrii)tion was " patriot king." Such inci-
dents as tLese show the diflticult position of Washington in trying to
steer a just course between the two rival missions.

"No Government can disregard formalities more than ours. Ibit
when formalities are attacked, wiili a view to change jninciples, ami
to introduce an entire independence of foreign agents on the nation
with whom they reside, it becomes material to defend formalities."

Mr. Jefferson, Sec. of State, to the miuiBter of France, Decttmber 9, 171);l, when
refn';in;^toaccej)t foreign coinniissionK unless addressed to tlie United States,
or to the President of the United States. 4 Jetf. Works, 90.

■ "Among Mr. Jefferson's pa])ers was found one indorsed in his hand-
writing: 'This rough paper contains what was agreed ui)()n,' meaning,
undoubtedly, what was agreed ui)ou by the President ami his (;al)inet :

"'I. In order to bring the members of so{;iety together in the first
instance, the custom of the country has established that residents shall
])aythe first visit to sti-ang<M-s, aixL, among strangers, first comer.s to
later comers, foreign and domestic; tiie character of strangers c«'asnig
after the first visits. To this rule there is a single e\cepti«»ii. iMueign
ministers, fVom the necessity of making themselves known, pay the first
visit to tile ministers of the nation, wiiich is returned.

"'II. When brought together in society, all are perfectly eipial,
whether foreign or domestic, titled or untitled, in or out of oflice.

"'All otlu'r observances are but exemi)lifications of these two prin-

eifdes . .

uti._ist. The families of foreign ministers, arriving at the seat ot
Government, receive the first visit fiom those of the national nunisters,
as from all other residents.

"'LM. Members of the legislature, and of the Judiciary, imh'peiideiit
of their ofHces, have a right as strangers to receive the lirst visit.

ui i|._ist. No title being admitted here, tho.se of foreigners give no
precedeme. .

'•'2d. Difierence of grade among the diplomatic members gives uo

precedence. ^^^

§ 107.] DIPLOMATIC AGENTS. [^HAP. IV.

" ' 3d. A t public ceremonies, to wliicb the Government invites the pres-
ence of foreign ministers and tlieirfiunilies, a convenient seat or station
will be provided for them, with any other strangers Invited, and the
families of the national ministers, each taking place as thej^ arrive, and
without any precedence.

" '4tli. Toniaintain the principleof equality, or of^^f?/e-we/t% and prevent
the growth of precedence out of courtesy, the members of the Execu-
tive will practice at their own houses, and recommend an adherence to
the ancient usuage of the country, of gentlemen in mass giving i)rece-
(lence to ladies in mass, in passing from one apartment where they are
assembled into another.'

"Tlie President had two public days for the reception of company,
the 1st of January and 4th of July, when his doors were thrown open
to all who chose to enter them. At other times, all who chose were
permitted to call upon him on business or as a matter of courtesy."

"2 Randall's Life of Jefferson, 667.

"Very soon, therefore, after entering on the office of Secretary of State
I recommended to General Washington to establish, as a rule of i)rac-
tice, that no person should be continued on foreign mission beyond an
absence of six, seven, or eight years. He approve<l it. On the only
subsequent missions which took place in my time, the persons'appoiuted
were notified that they could not be continued beyond that period. All
returned within it except Humphreys. His term was not quite out
when General "Washington went out of office. The succeeding Admin-
istration had no rule for anything; so he continued- Immediately on
my coming to the Administration I wrote to him myself, reminded Jum
of the rule I had communicated to him on his departure; that he had
then been absent about eleven years, and consequently must return.
.On this ground solely he was superseded. Under these circumstances,
your appointment was impossible after an absence of seventeen years.
Under any others I should never fail to give to yourself and the world
proofs of my friendship for you, and of my confidence in you. When-
ever you shall return, you will be sensible in a greater, of what f was
in a smaller, degree, of the change in this nation from what it was when
we both left it in 1784. We return like foreigners, and, like them, re-
quire a considerable residence here to become Americanized.

'• There is no point in which an American, long absent from his cou,n-
try, wanders so widely from its sentiments as on the subject of its for-
eign affairs. We have a perfect horror at anything like connecting our-
selves with the politics of Europe. It would indeed be advantageous
to us to have neutral rights established on a broad ground; but no de-
pendence can be placed in any European coalition for that. They have
so nuuiy otlit r by-interests of greater weight that some one or other
will always be bought off."

President Jefferson to Mr. Short, Oct. 3, 1801. 2 Randall's Life of Jefferson, 672.

See 3 Schoiiler's Hist. U. S. 122, instancing illustrations of Mr. Jefferson's posi-
tion above stated.

704

CHAP. IV.] OFFICIAL INTERCOUUSF. [§ 107.

"Ill the intercourse between tlie Seeretaries ami Att(»rney-(Je!i-
eral of this Government and the ministers of loiei<,ni powers the period
of the arrival of either nt the seat of CJoverninent is not considered.
The tirst visit is expected from the foreign ministers. This r.ile, it is
believed, is invariably observed by the Governments of Europe, and
seems to grow out of the mission itself. It is i)roper that the minister
sent ou a foreign mission should make himself known to the (iovern-
nient to which he is addressed, and that he should extend his visit to all
the chief officers of that Government. Jt is eciually correct, on any
change in the members of the Administration, that the first visit should
be paid to those who may be brought into jxnver. The intercour.se
must be opened, and that ought to be conuiienced by the foreign min-
isters, the principle being the same between these parties as between
the Government and the foreign ministers on their first arrival in the
country. The rule which i)revails between persons in jtrivate life is
not applicable to this case. This latter rule varies in ditienint places,
and is founded ou no fixed principle."

Mr. Mouroe, Sec. of State, to Mr. de Daschkofl", Mar. 9, l~i:3. ilSS. Nott-H,
For. Leg.

" In England the secretaries of the Government take rank of foreign
ministers, as do the family of the sovereign, the arcii <'haii(;('lior, the
arch -treasurer, and others. It is believed that the marshals of FraiM;e
would all take rank of the foreign ministers if they were brought into
the same circle. This, however, is not assinted with confidence ; a
knowledge of detail is not possessed.

" The same rules are supposed to exist at St. I'etersburg and at other
European courts — the same precedence to be given to the secretaries of
the Government over foreign ministers of every grade, and to all those
distinguished persons who take rank of the secretaries of the Govern-
ment. Precise information of the rules adopted at St. Petersburg is
also wanting.

"The secretaries of the Governments above mentioned n-tmii the
visits of ambassadors only. Their wives follow their example.

"The visits of the American ministers in England and Fnmce to the
secretaries of state were in many instances not returned, nor were tlio.M-
of their wives to the families of the secretaries of state. The omission
was imputed to the circumstance that our r«'piesentalives were minis-
ters plenipotentiary and not ambassadors.

"The Government of the United States adopts the rule of the Euro-
pean Governments, with this ex(!eption, that the heads of the Govern-
ment return the first visit of foreign ministers, without regard to grade,
and that their wives return every visit."

Mr. Monroe, Sec. of State, to Mr. Seruricr, May 5, lbl4. .MSS. Notes, For. Leg.

" I have iust returned from Carleton House, it being the seventh day
in succession that I have rode into town ou purpose to make my iuqui-

S. INIis. 1GL>— VOL. I 45 ^^^

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

ries there in the usual mauuer respecting the present King's health.
The answer to-day is that he is out of all danger. These are attentions
which it it is believed he ^A'ill be extremely scrupulous in exj)ecting of
foreign ministers. Indeed, the ceremonious inquiries which we are
obliged to make, under present circumstances, throughout all the circles
of the royal family keep our carriages the livelong day in motion over
the rattling stones. In mine I have just had a break-down. You know
how dispersed they live, from stable-yard to Kensington Palace, and
how many of them there are. 1 have often thought since I came here
that we maintain our diplomatic intercourse, at least with this Govern-
ment, upon terms of great inequality. I have yet to learn in what
point our Republic is behind this monarchy in dignity, and yet ichat
are not the acts of ceremonious homage^ to give them no other appellation^
ichich the minister of the former is compelled to go through herefrom which
the British minister with us is exempt ! "

Mr. Rush, minister at London, to Mr. Monroe, President, Feb. 6, 182G. Couti-
dential. Monroe Pap., Dept. of State.

"Nor is there an individual who has attended at all to the progress
of the dispute who does not see that it was embittered from the first,
and wantonly urged to its present fatal issue by the insolent, petulant,
and preposterous tone of those very individuals who insisted upon that
miserable experiment (orders in council) and plunged their own country
in wretchedness, only to bring down upon it the reluctant hostility of
its best customers and allies. If those mischievous and despicable coun-
cils were once cordially renounced ; if this paltry and irritating tone were
forever interdicted at our public otfices; if the negotiations were com-
mitted to a man acceptable to the Americans, and free from the suspi-
cion of insincerity which our late diplomatic communications with them
have so naturally excited, we are fully persuaded that a speedy and a
honorable termination might yet be put to this unnatural contest, which,
if it be purely ruinous and disreputable to us, i)romises also to be so
much more detrimental than beneficial to our opponents."

Edinburgh Rev., Nov. 1812, Vol. 20, 459.

As to the tone of the correspondence with Mr. Canning, Mr. J. Q.
Adams, Secretary of State, in a confidential letter to Mr. Monroe, Pres-
ident, August 3, 1821, writes :

" I am afraid you will again think my draft unnecessarily harsh, and
if so (I) request of you to strike out everything which may be justly
esteemed of that character. But I think you will observe little delicacy
towards the American Govern n)ent in the tone of his (Canning's) note.
I believe it to be important to hold up constantly on our i)art of the
correspondence the nature of our objections to the proposals of Great
Britain; and th^re is so much of a scolding in the remarks upon our de-
clining their proposals, and upon our ottered substitute, that I thought
a spirited notice of them due injustice to ourselves."

Monroe Pap., Dept. of State.

" Our disposition to discuss seems to have augmented, and the spirit
of conciliation has manifestly been abandoned in our councils. "\V»^are
determined to say harsher things than are said to us, and to have the
last word. Where this temper will lead us cannot be distinctly foreseen.
We are now on bad terms with the principal maritime states, and
perhaps on the brink of a rupture with Kussia. * * * l have labored

706

CHAP. IV.] OFFICIAL INTERCOURSE.* [§ 107.

to restrain this predominant disjtosition of tlir Govoriirnent, /y(// /^n-c
succeeded only partiaUy in softening the asperities which inv(trinhly predtnn-
inate in the official notes of the kStale Department. If tlicHc noti's had
been pennitted to remain as orij-inally diatt^'d, we should, I believe,
have before this time been unenibarrassed by dii)loiiiatic relations wiih
more than one power. The tendency to estran^^e us from all forei;,'n
powers, whieli the style of the notes of the State I)e])artment has uni-
formly liad, has been so often demonstrated, yet so often permitted,
that I have almost given up the idea of maintaining friendly relations
with those powers."

Mr. Crawford, Sec. of the Treasury, to Mr. Gallatin, luinistor at Paris, May 1!J,
1«22. 2 GaUatiQ's Writings, 241.

Mr. Crawford's antagonism to Mr. \dams, both being candidates for
succession to Mr. Monroe, in whose Cabinet they were, was at this time
avowed. It is certain, however, that Mr. Adams's negotiations with
Great Britain and France failed on points as to which the administration
of General Jackson subsequently succeeded. Ti)at this, notwithstand-
ing Mr. Adams's high public spirit and matchless dialectic skill, may be
attributed to want of tact and of suitable recognition of the character-
istics of those with whom he had to deal, is illustrated by the success of
the subsequent negotiations. Participation in the West Indian coui-
merce was refused by Great Britain when demanded by Mr. Adams as
aright; it was granted to General Jackson when aske<l as an ecjuivalent.
Payment of iSTapoleon's spoliations was refused to Mr. Adams by Louis
XVIII when it wasmadethesubjectof continuousdiplomatic irritation;
it was granted to General Jackson by Louis Philippe when it was the
subject of peremptory through courteous demand.

"At these audiences (those of President Monroe with foreign minis-
ters at Washington) the President observes the usual forms practiced
by Euroi)ean sovereigns on similar occasions; that is, he receives them
standing, dressed in a half military uniform or a full suit of black. The
ministers are in full court dresses. He stands in the center of the draw-
ing-room, and I accompany them, keeping on the right hand. On
receiving the letter the President hands it, unopened, to me. • • •
The President has a general answer to the short addresses which the
ministers make in delivering these letters, viz: 'That the United States
take a great interest in everything that concerns the happiness of their
sovereign,' with very little variation adai)ted to each particular case.
He makes no other conversation."

4 Memoirs of J. Q. Adams, 314.

" There is one difference in the correspondence of all the foreign min-
isters here from that which is usual in Euroi)e, they write letters, instea*!
of notes, in the first person instead of the third. The etlect ot tins dit-
ference upon style is greater than any one not habituated to both modes
would imagine.' * * * Anoth<'r difference is that we always use our
own language. Onis, in return, always writes, even to the most trivial
notes of compliment, in Si)anish. Bagot, of course, writes in English,
and the other foreign ministers, except Correa, write in Irencli; he
always writes in English."

4 Memoirs of J. Q. Adams, ">'27.

" In a private letter which I wrote to the President about two months
ago I mentioned that I was informed, through a respectable channel,

707

^ 107.] • DIPLOMATIC AGENTS. [CHAP. IV,

that one of the King's ministiTs had, ;il)out the time that the order in
council of July last was decided upon, ex})re8sed his great dissatisfac-
tion at tlie hmguage of the Government of the United States in their
dii)h»matic intercourse with Great Britain, to which he added that the
United States seemed as if they wished to take an undue advantage of
the temporary distresses of England, and that it was time for her to
make a stand and to show her displeasure. Satisfied that nothing offen-
sive whatever could be found in the diplomatic coirespoudence proper,
either here or at Washington, I tiionght that, however extraordinary it
might appear, the British Government might have taken offense at
some expressions in Mr. Adams's instructions to Mr. Eush, which would
naturally be written with more freedom of style tban letters addressed
to a British minister. In this conjecture it now appears that I am mis-
taken. * * * I have stated in a former dispatch my conversation
of the 5th instant with Mr. Canning, in which he used the same language
and nearly the same words in reference to Mi . Baylies's report on the
territory west of the Stony Mountains. It is most undoubtedly that
report which has given great offense, and I am apt to think that, though
not the remote or only, it was the immediate, cause of the order iu
council."

Mr. Gallatiu, miuibter at Paris, to Mr. Clay, Sec. of State, Nov. 27, 1826. 2 Gal-
latin's Works, 342.

Mr. Adams, in commenting on the above, said (waiving the question
of regarding any other authority than the State Department as repre-
senting the Government), that it was about as rational to make the
Administration responsible for Mr. Baylies, then in opposition, as it
would be to treat Mr. Canning as responsible for the utterances iu Par-
liament of Mr. Brougham or Mr. Hume.

President J. Q. Adams to Mr. Gallatiu, March 20, 1827. 2 Gallatin's Writing.s,

367.
Thataforeign minister cannot in bis correspondence takenctice of the domestic

politics of the country of his mission, see supra, §§ 79, 106.

The President '-would have been better satisfied if you had never al-
lowed yourself to employ, in your intercourse and correspondence with
the Brazilian Government, provoking or irritating exj)ressions. These,
he thinks, ought always to be avoided."

Mr. Clay, Sec. of State, to Mr. Eaguet, Jan. 20, 1827. MSS. Inst., Ministers.
Br. and For. St. Pap., vol. 15, 1128.

''The United States may in their diplomatic intercourse have been
guilty of much cold argumentation, never, to my knowledge (excepting
Pickering v. Adet), of any want of the usual courtesy and civility.
The charge is quite untrue as to the correspondence, &c., with Great
Britain, since the treaty of Ghent. See, in the additional documents on
colonial intercourse, laid before Congress on 28th Ai)ril last. No. 259,
Lord Dudley's declaration, at bottom of page 42^ * * * and I do
l-noic that the British Government was equally pleased with the tone
and manner of Mr. Rush during the whole of his mission and negotia-
tions. But we .publish everything, and the instructions of a Secretary
of State to an American minister abroad must be explicit, and may not
708

CHAP. IV.] OFFICIAL INTERCOURSK. [§ 107.

always be clothed iu the same polite laiiguajje towards a fbicj^in nation
which is used in a diplomatic note.-'

Mr. Gallatin to Mr. Everett, Aug. C, 1S28. '2 OiillnlinV Writiiiyn, 400.

In Lord Dudley's note to Mr. Gallatin, llic i)assai,'e referred to is as
follows: "The undersigned takes pleasure in recognizing in both these
letters of Mr. Gallatin, and esi)ecially in the in(|uiiy '.vhich closes the
second of them, the same spirit of good will and (•onciliation w hicli, iu
the midst of discussions involving no small difference of opinion, has
characterized Mr. Gallatin's correspondence with the liritish (lo\ern-
ment."
Ibid.

" In all discussions between Government and Government, whatever
may be the difierences of opinion on the facts or principles brought
into view, the invariable rule of courtesy and justice demands that
the sincerity of the opposing party in the views which it entertains
should never be called in question. Facts may be denied, deductions
examined, disproved, and condemned, without just cause of offense,
but no impeachment of the integrity of the Government in its reliance
on the correctness of its own views can be permitted without a total
forgetfulness of self respect."

Mr. Forsyth, Sec. of State, to Mr. Livingston, Mar. .5, lS'.ib. MSS. Inst., France.

The United States Government will frankly and promi)tly disavow in-
decorous language used in variance with their instructions by its diplo-
matic agents to the Governments to which thej; are accredited.

Mr. Forsyth, Sec. of State, to Mr. Ellis, Nov. IG, 18:i0. MSS. Inst., M.x.

The Mexican minister of foreign affairs having addressed directly
to the Secretary of State (Mr. Webster) a letter which the President
considered "derogatory to the character of the United States and
highly offensive," the President directed "that no other answer be
given to it than the declaration that the conduct of the Government of
the United States, in regard to the war between Mexico and Texas,
having been always hitherto governed by a strict and irni)artial regard
to its neutral obligations, will not be changed or altered in any respect
or in any degree. If for this the Government of Mexico shall see lit to
change the relations at i)resent existing between the two umntries, the
responsibility remains with herself."

Mr. Webster, Sec. of State, to Mr. Thompson, July i:!, l^A2. MSS. Inst., Mc,\.:
6 Webster's Works, 459.

When a foreign minister uses in his correspondence with the Depart-
ment language offensive to this Government no further corresixnulence
with him will be maintained.

"During the Presidency of IMr. :\radison, when the language of a
British minister, Mr. Jackson, residing in this country, had prov(Ml of-

709

^ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

fensive to this Government, that minister was promptly informed, with-
out even first submitting his correspondence to his own Govermnient,
that no furtlier communications would be received from him, and the
reason for the step was afterwards made known to his Government.
Mr. Jackson himself, in defending the positions he had taken, accom-
panied his observations with the remark that ' beyond this it. suffices that
I do not deviate from the respect due to the Gorernment to which I am ac-
credited.^ How, then, was this matter regarded at the British foreign
oflBce, at the head of which, at that time, was Lord Wellesley. His
lordship, to whom the correspondence had been submitted, expressed
the concern of His Majesty that the interruption of the intercourse had
taken place by the command of this Government before it had been
possible for His Majesty, by any interposition of his authority, to mani-
fest his invariable disposition to maintain the relations of amity with
the United States. He conveyed the most i)ositive assurances from Mr.
Jackson that it had not been his purpose to give offense to the United
States Government by any expression contained in his letters, or by any
part of his conduct. He suggested, indeed, that a better and more
usual course would have been to convey to his Government a formal
complaint against the minister with a view to suitable redress. And
although he said His Majesty had not marked with any expression
of displeasure the conduct of Mr. Jackson, who had not appeared to
him on the occasion to have committed any intentional offense against
the Government of the United States, yet, as he was always disposed
to pay the utmost attention to the wishes and sentiments of states in
amity with him, he had directed the return of Mr. Jackson to England.
And in further testimony of a sincere desire to cultivate an intercourse
with the United States on the most friendly terms, his lordship added,
that he was authorized to assure this Government that His Majesty
was ready to receive, with sentiments of undiminished amity and good
will, any communication which the Government of the United States
might deem beneficial to the mutual interests of both countries, through
any channel which might appear advantageous to the Government of
the United States."

Mr. Clayton, Sec. of State, to Mr. Eives, Sept. 14, 1849. MSS. Inst., France.

" The President still maintains the position advanced in my first note
to Mr. de Tdcqueville, that this Government is the guardian of its own
honor, and, of course, the sole judge of what is due to it. He has re-
fused to hold further correspondence with Mr. Poussin, and he will re-
fuse to hold it with any other minister from any country who shall use
similar language, or prove himself equally disrespectful to this Govern-
ment. He accords to all other Governments the same rights, in this
respect, which he demands for his own. If the French Government
would not hold such language disrespectful when applied to itself, we
shall not question its right to decide as it shall think fit. The law of
710

CHAP. IV.] OFFICIAL INTKRCOUUSK [§ 107.

iiiitioiis has wisely given (o eacli (lie y\'^\\\ to iii:iiut;iiii its own liniKuiii
siicli eases, by placing- liie reiucdics lor insult in its own |tower. One
of these remedies is to icfiise to concspond any loni;('r wiih (he otlV-nder,
and the right cannot be denied witliont incurring tin- risk of involving
the world in wars about the meaning oC words and tlic forms of diplo-
matic etiquette."

Mr. Clayton, .See. of State, lo Mr. Kivcs, ,laii. 1. Iri5(». M.SS. Inst., Kranco.

The Government of the United States will be more tolerant of expres-
sions of ])etulance and acts of annoyance on the part of Governn)ent8
of South American states threatened with i evolution than it would be
of similar acts or expressions by stabh* European Governments.
Mr. Cass, Sec. of State, to Mr. Lamar, .July 25, l!-r)8. MSS. Inst. Am. St.

"On the arrival of Mr. Ward at Peking, he requested an audience of
the Emperor to i)resent his letter of credence. This he did not obtain,
in consequence of his very j)roi)er refusal to subuiit to the humiliating
ceremonies required by the etiquette of this strange i)eople in a])i)roach-
ing their sovereign. Nevertheless, the interviews on this (]uestion were
conducted in the most friendly sjjirit, and with all due regard to his
])ersoual feelings and the honor of his country. When a i)resentation
to Uis Majesty was found to be impossible, the letter of credence from
the President was received with peculiar honors by Kwcilang, 'the
Emperor's prime minister and the second man in the Empire to the
Emperor himself.' The ratiticatious of the treaty were afterward, on the
IGth of August, exchanged in ])ro])er form at Peiisang. As the
exchange did not take place until alter the day i>rescribed by the
treaty, it was deemed proper, before its publication, again to submit it
to the Senate. It is but simple justice to the Chinese authorities to
observe that throughout the whole transaction they appear to have
acted in good faith and in a friendly spirit towards ihe United States.
It is true this has been done after their own peculiar fashion; but we
ought to regard with a lenient eye the ancient customs of an Kmpire
dating back for thousands of years, so far as this may be consistent
with our national honor. The conduct of our minister on the occasion
has received my entire ajjprobatiou.''

President Buchanan, Third Annual Messaj^f, IH.VJ.

lu regard to tho ceremony of pre.sentation to the Emiieror of China, see Mr.

Webster, Sec. of State, to JMr. Cushing. May 8, H4:!. ti Weh.ster's Works.

470,471.
As to presentation of American citizens at the court of France, see Senate Ex.

Doc. No. 19, :57th Conjj., 2d sess.

"I very freely confess to the opinions, tirst, that an audience or i>re-
sentatiou of any but diplomatic persons at court is to be regarded not
in any degree as a right of the person received, but as a courte.sy
extended to him. Secondly, that the imperial court is entirely at liberty
to define and prescribe the qualifications, conditions, and terras on which

711

^ 107. J DIPLOMATIC AGENTS. [CHAP. IV.

straugers .shall be admitted into its society. Thirdly, if American citi-
zens request yon to present their wishes for admission at court, you can
only present them by complying with the terms and conditions pre-
scribed. Fourthly, referrinj^ to the questions which have actually arisen,
1 think that you can properly, in all cases, give the occupation or pro-
fession of any person whose wishes you present. You cannot, indeed,
undertake to assign the social position of each person, for tliat would be
to discriminate, or to seem the discriminate, by JEuropean rules, betw^een
persons who, being all alike citizens, may justly claim to be equals in
social position at home, and, therefore, equals in the consideration of
this Government itself, when they are abroad. It seems to me, however,
that in many cases, there are circumstances belonging to the persons
you propose to present which may be properly stated, such as official
positions held by individuals at the time, or even at some previous time.
Distinctions arising from personal merit, such as military, scientific, or
literary, or of a jiolitical character, and distinctions as founders of scien-
tific, literary, or humane institutions. But, even when these sugges-
tions are made in compliance with the rules of the court, it is not to be
claimed as a matter of right, or even as a matter of national comity,
that the presentations or audiences shall therefore be granted.

" I have dwelt on the subject longer than was due to any importance
that it can claim. It is peculiarly uncomfortable at this moment, to find
American citizens leaving their country, a prey to faction and civil war,
disturbing the court of a friendly power, and embarrassing our repre-
sentative there with questions of personal interest and pretension. Let
the Em])eror aud Empress of France receive whom they will, and as
many or few as they will, aud let all others, as well as those who are
admitted, turn their attention to the question how they can serve their
country abroad ; and if they find no better way to do it than by making
their attendance in the saloons of the Tuileries, let them return home
to a country that now, for the first time, needs the active efforts of every
one of its loyal children to save itself from destruction.

"Finally, above all things, have no question with the Government of
France on this subject. Rather introduce nobody, however justly dis-
tinguished, than let a question of fashion or ceremony appear in the
records of the important period in which we are acting for the highest
interests of our country and of humanity."

Mr. Seward, Sec. of State, lo Mr. Dayton, Feb. o, 1862. MSS. lust., Frauce ;
Senate Ex. Doc. No. 19,37th Cong., 2(1 sess.

•'Presentations to members of reigning families cannot be made by
private citizens through the diplomatic agency of the Government.
They should be made through the diplomatic representative of the
foreign Government."

Mr. Fish, See. of State, to Mr. Montgoniory, Dec. 5, 1871. MSS. Dom. Let.
712

CHAP. IV.] OFFICIAL INTERCOURSE. [§ 107.

The line to be adopted by loici-n inini.stfrs as toprcsnitatinii of Auieri-
caiis at court must be settled by siidi ministeis, iind cainKtt be deter
miued by tbe Department (jf State.

Mr. Fish, Sec. of Stale, to Jlr. Jay, Jan. '^'J, l^T-J. M.<S. In-i.. ,\iiHiri:i.

" Eiit it would eeilainly be ])ier('nibi»' id rcTn.-x- lo picsciil anyone
not belonjiing- to the lej^ation than lo incur the risk (»f ollcntlin^' by
introducing- persons of questionable character and antecedents, or to
make such invidious distinctions as would be unavoidable by extending
the list."
I hid.

"Whether all audiences (in China) should be delayed until the Km
peror .shall arrive at such age as to consider and direct a chan<;e in the
forms, or until the increasing intercourse with China shall prove the
wisdom of such change, may be somewhat doubtful, and while the De-
partment is not informed as to the ])articular change which, in Mr!
Wade's opinion, it may be advisable to adopt in the ceremonial, the
President is clearly of the opinion, as stated in the circular dispatch of
the Department, that it will be advisable as nearly as may be ])os.sible
to conforni therein to western usage."

Mr. Cadwalailer, Acting Sec. of State, to Mr. Thoruton, .Vug. 'JO, iHT'i. MSB.

Notes, Gr. Brit.
An article on diplomatic etiquette is given in Blackwood'.s Mag. for Di-c, 1H73.

vol. 114, 1). mrff.
As to etiquette observed on the, visit of the Grand Duke Alexis, of Kussia, to

Washington, in 1877, .see Mr. Fish, See. of State, to Mr. Bok.-r, Mar. 7, 1-77.

MSS.Inst., Ku.ssia.

"It is the custom of diplomatic intercourse for a foieign rciuesenta-
tive to address communications in his own tongue to the Government
to which he is accredited. * * * The request, however, for a Frenc^h
version (in Tripoli) to accompany English communications is regarde«l
as reasonable."

Mr. Freliughuysen, Sec. of State, to Mr. Kolicson, Fel.. v.'-^, l--','. MS.s. lu.st..
Barb. Powers.

The negotiations in 1807-'(M) with the British legation at Washington
are strdiing illustrations of the importance of courtesy and ol sinc«'rity
in diplomatic a(;tion. The circumstances of the attack on the Clie>a
jienke by the Leo])ard, in ISOT, are elsewhere narrated, and it will
be remembi'red that President .Jetlerson, immediately after the occur
rence, demanded ie|);iration and apology from (Ireat Britain, and sim-
ultaneously interdicted all British arme<l vesstds Irom entciing the
territorialwaters of the United States, (See inf'rd, § M'>h.) Tin- Pox
Grenville ministry was then in power in l-higlaiid. and Mr. David Mon
tague Erskine, son of Lord Piskine, then ('iKinceilor, and a gr;indson
of the Earl of Buchan, was sent as minister to tlie United Siati-s for
the purpose of settling not merely the comi)lications e(Hinect»'d with
tlie outrage on the Chesapeake, but those arising Irom the order of
council of 1807, by which the British ministry had placed the whole
northern coast of Europe under a pai)er bio -kade, and had prohibited

713

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

all lUHiti al coasting trade aud colonial trade between belligerent i)orts.
(See infra, § 388.) Mr. Erskine's selection was ])ecnliarly fortnnate.
(See more tally, supra, § 84.) lie bad no little skill as a diplomatist
(see Lord Erskine's pamphlet in liis defense, puldished in 1807); his
wife was a member of a Philadelphia family of high social position ;
he iuheiited his father's kindly manners and sweet temper without his
father's occasional tendency to dissipation ; and he was sincerely desir-
ous of carrying out his original instructions of restoring the friendly
relations betw^een the two countries. It is true that on the fall of the
Fox-Greuville ministiy, his instructions were less conciliatory ; but
still, taking them in their whole scoi)e, he conceived he was only can y-
ing out their spirit when on April 18, 1809, he concluded with Mr.
Madison's administration, which had just come into power, a conven
tion providing that on the repeal of the orders of council of 1807
and rej)aration for the aggression on the Chesapeake, the Presi-
dent's proclamation excluding British men of- war from American waters
should be recalled, and commercial intercourse with Great Britain re-
stored. On A])ril 10 Mr. Smith, Secretary of State, recei\'ed a note
'from Mr. Erskine stating that the orders of council in fpn stion were to
be withdrawn on June 10. On the same day the President issued a
proclamation declaring that trade with Great Britain was to be resumed
on June 10, and this was followed not merely by a series of puldic
meetings expressing joy at the peace thus to be tirmly established, but
by the introduction in the House (May 3, 1809), by Mr. John rvand()li)h,
of a resolution declaring "that the promptitude and frankness with
which the President has met the overtures of the Governnit^nt of Great
Britain towards a restoration of harmony and freer commercial inter-
course between the two nations meet the approval of this House." But
before this resolution could be acted on, intimations from England led
to a doubt whether the British ministry would ratify Mr. Erskine's con-
vention; and on July 31 Mr. Erskine was himself coujjielled to announce
to the Secretary of State not merely his own recall, bur there])udiation
of the convention by his Government. (See tuipra, § 84.) This recall
and disavowal were the result, as we now know, of a belief, i)artly that
the party divisions in New England would jtaralyze the Administra-
tion, and partly that the tone of brutal dictation a short time before
assumed toward Denmark might with a like success be assumed towards
the United States, and that the United States might, by such dictation,
be forced into alliance with Great Britain and war with France. But
whatever might be the cause, the result, as is slated by Sir A. Alli-
son, in his review of this period of British history, was i)eculiarly
unfortunate for Great Britain, as it prevented a settlement by which
Great Britain would have been saved from the war of 1812, and, as a
counterpoise, led to closer relations between the United States and
France. {Supra, § 84.)

The recollection of the attack on Denmark, to which reference has
just been made, had, no doubt, something to do with 3Ir. Canning's se-
lection, as the successor of Mr. Erskine, of Mr. Fran(;is J. Jackson, who
had been British envoy to Denmark at the time of the i)rojected attack
on Copenhagen, and who, from his agency in that outrage, went by the
name of "Copenhagen Jackson." In a remarkable work, i)ublished in
London in 1872,* by a member of ^Nlr. F. J. Jackson's family, we have a
series of letters from Mr. F. J. Jackson, narrating the temper in which he

*The diaries and letters of Sir G. Jackson; in two volumes, Loudon, 187:.'; secoud
series, under title of the " Bath Archives,'' London, 1873.

714

CHAP. IV.] BRITISH MINISTERS BEFORE 1812, [§ 107.

visited Denmark, and in wliicli lie altcrwaids visited the United Statea.
In a letter of August 7, 1807, \vb«n lit- was on tlic liist mission. In- thus
speaks: "I had an interview yesterday with tiie Prince Ke;,MMit, to whom
I stated that I was ordered to demand the .iun(;tion of tlie Danish tieet
witli tliat of Great Britain, and that in (tase of refusal it was the de-
termination of His AJajesty to enforce it. He replied that 'such a pro-
posal \vas utterly opposed to every prineij)!*' of honor, and that the men-
ace by which it was accompanied made it still moic otfeiisive.'"' The
"surrender" beinj? refused, the British (leet, cominj'- down siuldeidy
in over])Owerin<i- strength, made the attack. The Danes resisted t«t
their utmost. "They have already," so Mr. Jackson writes on St'iilein'oer
1, 1807,- "burnt their suburbs and destroyed every house that was
likely to afford shelter to our peoi)le." The result was, to follow Mr.
Jackson's narrative (Sept. 14, 1807), be(;ause Denmark refused, as a
neutral, to give up her fleet to Great Britain, the "burning a capital
city, the residence of a court, and <lestroying a great commercial
dei)Ot." And the upshot of this "negotiation " was the seizure by Great
Britain, without declaration of war, of the Danish fleet, Denuiark being
at the time at peace with Great Britain, and utterly unaware that such
an attack was e^ en dreamed of. Mr. F. J. Jackson was therefore famil-
iar with the tone adopted by British diplomatists to minor Kuropean
states. Bis subsequent public dispatches to his Government, during his
mission to the United States, show that he was not without pride in hav-
ing adopted that tone with Denmark. Even more transjiarenlly is this
temper exhibited in the series of letters above noticed, in which his pri-
vate correspondence with his family at the time is given. According
to the appendix to volume I of the second series the matter ]»riiu-ii»ally
before the new envoy was the arrangement of the ditiiculties caused by
the attack on the Chesapeake and "the issuing, by President Jefferson,
of a proclamation, dated July 2, 1807, interdicting the entry of all the
American ports to the whole of the British navy. This ]>roduced fresh
orders in council, intended to support British maritime rights and com-
merce, and to counteract Bonaparte's continental system. America's
wrathj" so the editor proceeds to say, "was kindled against England
for resorting to measures of self-defense, and in the month of Decem-
ber, 1807, Mr. Jefferson succeeded in carrying a resolution in Congress
that all trade and intercourse with foreign nations shouUl be suspended.
Bickerings and contentions at sea, mutual manifestoes, embargoes, sto|)-
pages to trade, and much angry diplomacy followed. In this state mat-
ters remained down to the declaration of war in June, ISlL', when ^Ir.
Madison, who passionately desired that his term of ollice should be dis
tinguished by the annexation of Canada to the United States, was I'res

ident." , ^

As to this statement, giving, no doubt, Mr. E. J. Jackson s after views
of the object and nature of his mission, the following observations may

be made:

First. The private correspondence of the parties on hie in the Depart
ment of State, as well as the official correspondence of the Department,
shows that neither Mr. Jefferson nor Mr. Madison desired war with
Great Britain, and that if they erred, it was in their extreme solicitude
lor peace. It may be safely averred that the consideration winch drew
them finally to the adoption of warlike measures was the fact that the
grievances wdiich the United States suffered were those of the mariliine
and commercial interests, which both Mr. Jefferson and Mr. Madi.son
felt, from their own personal association with the agricultural classes,

715

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

and from tbeir wish to subdue sectional and class rivalries, a peculiar
desire to protect.

Second. Mr. Madison, as liis correspondence shows, had not only no
desire for the "annexation of Canada," but such an annexation, coupled
as It woukl be v/iih a protracted and deadly war with Great Britain,
was to his peaceful and unaggressive temper a contingency peculiarly
dreaded.

Third, With instructions on their face friendly Mr. F. J. Jackson, as
wo now learn from his i)rivate letters, was under orders to grant noth-
ing, but simply to "temporize" and to "postpone" actual concession.
But while thus putting oft' the granting of reparation fo'.' the outrages
to which the United States had been subjected, he felt that he was
playing the part to which he was assigned, and for which his i)rior dip-
lomatic achievements fitted him, when, repudiating Mr. Erskiue's course
of kindly and courteous treatment of the Government at Washington,
he began by exhibitiug to that Government an attitude of arrogance.

His first letter in the American series is dated at Washington on
October 7, 1809. He begins with a slur at Mr. Erskine, whom he
describes as a "Scotchman witli an American wife, who would be a
fine lady, who left his house in such a state of ruin and <lirt that it will
be several weeks before we can attempt to move in it." He is ready at
the outset to plunge into party ])olitics. "Many of the Democrats who
were his (Erskiue's) intimates do not come to me, and I am well pleased
and somewhat flattered by the distinction."

Of his fii'st interview with Mr. Madison he thus proceeds to speak :

" ^Madison, the President, is a plain and rather mean looking little
maii, of j; rear simplicity of manners, and an inveterate enemy to form
and ceremony, so much so that 1 was olficially informed that my iutro
duction to him was to be considered as nothing more than the reception
of one gentleman by another, and that no particular dress was to be
worn on the occasion, all of which I was very willing to acquiesce in.
Accordingly, 1 went in an afternoon frock, and found the President in
similar attire. Smith, the Secretary of State, who had walked from his
office to Join me, had on a pair of dusty boots, and his round hat in his
hand.' When he had introduced us, he retired, and the President then
asked me to take a chair.

" While we were talking a negro servant brought in some glasses of
l)unch and a seed cake. The former, as 1 had been in conference the
whole morning, served very agreeably to wet, or whet,. my whistle, and
stilUmore strongly to contrast this audience with others 1 had had with
most of the sovereigns of Euroi)e."

()f Mrs. Madison he declares (having Mrs. Austen in mind) that she
"is tat and forty, but not fair," and he i)roceeds to make some dis-
l)araging and untrue statements as to her early training, which it is
not worth while here to repeat, but which he qualities by intimating
that the same peculiarities attached to Mrs. Merr;\ , the wife of one
of his predecessors, whose social iiretensions, as we will see, caused so
much difficulty at Washington, On October 20 he writes to his
brother that " Erskine is really a greater fool than I could have
thought it possible to be, and it is charity to give him that name.
* * * Kow that I have gone through all his correspondence, more
than ever am 1 at a loss to comprehend how he could have been allowed
to remain here for the last two years. To be obliged to wade through
such a mass of folly and stupidity, and to observe how our country has
been made, through Erskiue's means, the instrument of these people's

716

CHAP. TV.] BRITISH MINISTERS BKFORK 1812. [v'v 107.

cnniiiiig-. is not llie loust i):iit of my aimoyuncc lietwiM-n iIkmii our
cause isvililied iiidcod. * * * In the same spirit tln'y lH*;,'aii wit li
me by sayinj>- tliey would only no^':otiate upon paper. (See as to tliis,
.supra, § SO/;.) But tliey iiave .uained notliin;^ l>ytliis mode, in which 1
was oblified to acquiesce, for I took it upjn a .st\le tlmt l>rou;,dit them,
in some de.i2:iee, to their senses." ''Madfson is now as obstinate as a
mule. * * * if after tliis we «iive tliem any .satisfaeiion at all we
bad better send it wrapped up in a Liriiisli <'nsif,ni, and desire tlit-m to
make wdmt use of it they please. You see 1 keep ti) Lord Malmslmry's
imwuu, ' has cu haiit.'' * * * A bad fttect is i)ro(hiced by the min-
ister ot the junta remainin;;' heie even till he can receive fresh oiders.
It will encouiajjje these peoi)le in tlieir insoh'nce." "At bottom they
(Democrats and Federalists) are all alike, except that some few are less
knaves than others." "I came," he writes on November 14, 18(>1>,
after he found his tone of menace and of insult, as adopte(l by hi(n
in his correspondence, had failed, " i)rei)ared to treat with a re^'ular
Government, and have had to do with a mob and mob leaders." ''Do
not imajiine" (he bein<i' by this time iiittilied that his recall would
be asl.ed, on the ground that it would be imjtossible to corresjtond with
liim after he had charged the Secretary with duplicity and falsehood),
" that this is a personal affair. I have taken higli ground for my «'oun-
try, and it was highly necessary. * * ♦ i have luy passports.
* * * My objec't was to secure safety and inviolability for my own
jiersoii, for my family, and the other ujembers of the mission, on remov-
ing from Wasliington, in consecpience of the outrageous and threaten-
ing langaage of the Dt iiiocrats and the i)apers that express their oi)in-
ions and leelings." On Noveird^erl!! Mrs. Jackson thus states her hus-
band's position, he having retired to Baltimore, out of the reach of the
'•threats": '-We i)assed the tirst two months at ^^'ashington, the seat
of Government, but Francis being accustomed to treat witli the civili/ed
courts and Governments of Earo))e, and not with savage Democrats,
half of them sold to France, has not succeeded in his negotiation."'
"It would be an absolute disgrace to the country," he writes on
J\lay 1, 1810, from New York, which was his next retreat, • • ♦
"if another minister were to be sent here without some sort of satis-
faction being taken or received for the treatment 1 leceived." "A
more despicable set" (the Administration) '• 1 never met with be-
fore, and they can do neither England nor any other country any
barm. They are as deficient in talent as in i)riuciple,"' an<l he goes on
to detail " a" disgraceful outrage that took ))lace in that diity ne^^t of
philosophy, Philadelphia." " We have repeated opi)ortuniti.-s" (so he
writes on August 24, 1812, three years after his return to England), "of
doing what is right to the Yankees, but still hold back. 1 do hope that
before this business (negotiation) is ended we may fall in with one of
their frigates. Sawvtr, with his force, ought to show iheir whole navy
across the Atlantic." lUit on J)ecember 22, 1812, after the war had
begun, he writes: "As to the coiuluct of the naval war against the
Americans, it would dis'grace the sixth form of Eton or Westminster."
This, and the disasters of the war, with the scars it left l)ehiiid, might
have been spared, liad Mr. Erskiue's course been sustained by the Brit-
ish ministry,or, if that were impracticable, if he had been succeeded by
a minister with w horn the Government of the Ignited States could have
negotiated without loss of self respect. There was no course, under the
circumstances, but to request Mr. Jackson's recall, and the increase of
illieeling between the Governments which this request caused, couple<l

717

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

with tlic persistent pressure of the grievanoes of whicli the United States
coniphiined, led, after the intermediate failure of Mr. Foster's mission,
to war.

Sir A. Alison thus notices Mr. Jackson's dismissal, which he regards
as a ))rovocation to war, and as a chief incident in the chain of events
by wiiich the war of 1812 was forced:

"It may well be imagined what a storm of indignation was raised in
the United States when the intelligence of the refusal of the British
(jovernment to ratify Mr. Erskine's convention was received, and how
l)ro<ligiousl,v it strengthened the hands of the party already in power
and supported by a decided majority of the nation, which was resolved
at all hazards, and against their most obvious interests, to involve the
country in a war with Great Britain. Mr. Erskine, as a matter of course,
was recalled, and Mr. Jackson succeeded him as British envoy at Wash-
ington; but his reception was such, from the very outset, as left little
hope of an amicable termination of the differences. From the Fresi-
tlent's table, where the English minister was treated with marked in-
difference, if not studied insult, to the lowest ale-house in the United
States, there was nothing but one storm of indignation against the
monstrous arrogance of the British maritime pretensions and the du-
])licit.v and bad faith of their Government. Unhappily the elections for
Congress took place during this whirlwind of passion, and such was the
ascendency which the Democratic party acquired in the legislature from
this circumstance that it was plain that all hopes of accommodation were
at an end. Mr. Jackson continued, however, at the American cai)ital,
striving to allay the prevailing indignation and renew the negotiation
where Mr. Erskine had left it oft"; but it was all in vain, and, after a
stormy discussion of twenty-five days in the House of Representatives,
it was determined, by a great majority, to break off" all communication
with the British envoy ; and Mr. Pinkuey, the American envoy in Lon-
don, was directed to request the recall of Mr. Jackson, whose firmness
tlie American Government found themselves unable to overcome; and
this was at once acceded to by the British administration."

10 Alison's History of Europe, 651 ff.

As to this statement it may be remarked :

(1) Mr. Jackson's reception was one of peculiar consideration. Mr.
Madison was then at Montpelier, his country residence; but he directed
that a barge, duly manned, should be sent from Washington down the
Potomac to bring Mr. Jackson to the city more expeditiously than could
be done by the packet by which he was to have come up from ]S"orfolk.
Mr. Madison, as we learn from the private correspondence on file at
llie D(*|)artment of State, transmitted, through Mr. Smith, Secretary
of State, to Mr. Jackson, cordial expressions of regret that he was
Oi)lige<l to be absent from Washington at the time of Mr. Jackson's
arrival, inviting, in terms of great friendliness, Mr. Jackson to visit
Montjx'lier. Mr. Jackson acknowledges this in one of those singular
letters he wrote to his family shortly after his arrival — letters of vain-
glorious satisfaction at the attention paid him and of condescending
('ontenq)t for the Government by whom those attentions were i)aid.
It was not unnatural it should have been so. The desire on the part of
Mr. ^ladison, always placable and gentle, to avoid a rupture with Great
Britain was then, as we now know, very strong. Mr. Smith, Secretary
of State, was, as connected with a large commercial house, enlisted by
interest in the same jiolicy ; and Mr. Gallatin, whose influence in the

718

CHAP. IV.] BRITISH MINISTERS BEFORE IKl'J. [^ 1 07.

Cabinet far traiisct'iKlod that of li is associates, was (Icvoteil to tlie riiaiii-
ti'iiaiice of ])ea(;e, wliicli was at once a part of liis political piiilosopliy
and essential to his tinancial schenies, l>ut while the zeal shown to
conciliate Mr. Jackson was not unnatural, it is not snrpiisin;; that he
should have detailed to his family the exhibition of this zeal with si-lf-
complimentary complacency. Ministers from the [Jnited States of no
little eminence ha(l visited London ))rior t(> Mr. .JacUson's mission.
IMr. John Adams, at the time the leadinji' statesman of his country, hail
li'one there as its tirsr envoy, and had been received with surly nc;;-
lect, and placed, as he tells us, in social ostracism. Mr. .lay, .Mr. T.
Pinckney, Mr. Monroe, and Mr. William I'inkiu'y, mt'ii of sin^iular
courtesy, cultivation, and dignity, were certainly not met in advance
with barges on the Thames to make nu)re comfortable their pa>s-
age over that river, nor do their letters tell us of any maiUed social
courtesies bestowed on them by members of the Government, Pait <»f
the remembrance of this may have led Mr. .Tackson, famdiar as he was
with the aniuils of British diplonuicy, to narrate to his family with pe-
culiar zest the honors, almost obsequious as he describes them, widch
were showered on him when he reached Washington. While this, how-
ever, need not sur])ris(^ us, we would be entitled, from what we now
know of the facts, to be surprised that, alter his '•Copenhagen '' men-
aces had provoked the rebuff due them, and after the charge, made by
him against the Administration, of falsehood and duplicity, had i)ecn
met by a refusal to hold further intercourse with him, even he should
have ii ad the audacity to tell hisGoverniiuMit that he had been ivceived
at Washington with rudeness and insult ; that he was in danger from
the Washington "mob," and that the tone of society there was >o low
that he and his wife could no longer abide it, but must move the lega-
tion to New York.

(2) The "President's table" is referred toby Sir A. Alison as the
scene "of marked indifterence, if not of studied insult," to Mr. Jackson,
and from this table "to the lowest ale house in the United States," we
are told, " there was nothing but one storm of imlignation," »S:c. No
doubt thiv- is what Mr. Jackson told his Government after his dismissal;
but his letters, written to his family at the time of his reception. an«l
before his misconduct led to his dismissal, show that this statenu-nt
was untrue. In the next section will be given Mr. Jackson's contem-
poraneous account of his reception at the " President's tabh'.*' ami of
the coutemi)tuous conceit with which he leceived on his tirst visit to
Mr. .Madison thesimi)le hospitalities whi<-h it was natural for Mr. .Madi-
son, as a quiet, unostentatious, and unaltected Virginia gentleman, to
pay. Mrs. Madison's singular grace and dignity, of which few observers
but Mr. Jackson were unconscious, he indeed does not notice in the
letter written by him immediately on his lirst visit ; but he regales his
family with a st\itement about her early life, which, false as it is, is t(»o
base to be here repeate<l. He goes w ith his wife, however, to dine with
Mr. and Mrs. Madison, and the hom)rs there i)aid him he dilates on
(?>///•«, § 107a) in a detail which shows how without foiimlation are his
subsequent fabrications about insults at the " Presiih'iit's tabh-."'
When the equally famous dinner invitation was temlered Mr: .Meiry,
Mr. Jefferson's daughters were absent, and Mr. Jetferson gave only in-
formal dinners, following the French usage under such circumstances
which prevailed when he was at Paris. There was no -lady," there-
foie, "at the table" for Mr. Meiry to "take in." When .Mr. Merry
demanded that the attention of precedence should be paid him it

719

^^ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

was impossible to accede to his demand, as orlierwise be would
liave bad to walk iu advance with Mr. Jefferson, leavin*;- liis own wife
bebind. A'^ide from this, it was impossible for Mr, Jefferson, either
as President or as a gentleman in his own bouse, giving an informal
entertainment, to admit a claim to arrange the order of bis tattle,
made by the British n)inister as a matter of right. So it was that the
request to give Mr. and Mrs. INIerry precedence at Mr. Jefferson's table
was declined, as will be presently noticed aiore fully, and this was re-
ported to the British Goveinment, and dwelt upon by English writers,
as a mark of disrespect and a cause of grievance. Mr. Madison recol-
lected this well, and, Mrs. Madison being at his side to help him, he took
])ains, in his own simple and kindly way, to arrange matters so as to
avoid the i)ri()r difficulties. The second "dinner arrangement," which
was to take so conspicuous a ])art in our diplomatic relations with Great
Britain, was then made in such a way as to give Mr. and Mrs. Jackson
the jiositiou they claimed — Mrs. Madison leading Mr. Jackson, Mr.
Madison Mrs. Jackson; which distinction Mr. Jackson, as we will pres-
ently see (infra., § 107a), dwells on with satisfaction in a letter written
to his family immediately after the event, not refraining from mention-
ing how much more successful his "diplomacy" had been in this respect
than that of Mr. Merry, nor from intimating that Mrs. Merry's origin
was sucli as to place her under some sort of stigma, which may have
been the cause, he may have desired to suggest, why, even at Washing
ton. })recedence was not allowed to her. But however this may be,
Mr. Jackson's subsequent statements of '-insults at the President's
table," sent by him to the British Government and adoi)ted by British
historians, are showji to be untrue by his own family letters contem-
poraneous with the event. That they were from the nature of things
untrue, no one ever has doubted who is familiar with the simple but
gracious and nniformly considerate manners of Mr. and Mrs, Madison
and the relined and studied courtesy of Mr, Gallatin, who was Mr.
Madison's chief friend and adviser, and who from his gentle birth and'
training at Geneva was at least as competent as Mr. Jackson to decide
questions of social bearing.

(3) The personal indignities at Washington claimed by Mr. Jackson
to have been received by him, have been already noticed {fiujira, §94).
The ui)shor of these was that Mr. Jackson attempted to bully and brow-
beat the Government, that he was told that after such an insult no
iurther intercourse could be held with hini, and that he at once an-
nounced that be would move the legation to IS^ew York. It is not true
that be met with any indignities at Washington beyond this merited re-
fusal by the members of the Administration, and of its leading snjjport-
ers, to associate with him personally, or to receive any further com-
munications from him. There was no complaint whatever made by him
of such indignities until after this rei)ulse. There is no country in which
diplomatic immunities are so highly regarded as in the United States.
There are no courts which, as we have seen (sKpra., § 9l*), place so strong
a guard on these immunities as the courts of tlie United States, Federal
and State. Xo rulers have ever lent a more attentive ear and extended
a i)rompter arm to bring offenders in such cases before the courts than
the successive Presidents of the United States. Mr. Jackson, as an ex-
perienced dii)lomatist, must have been aware how often foreign minis-
ters in London had appealed, sometimes ineffectively, for the ])rotec-
tion of the British authorities. He could not, also, have been uncon-
scious of the masterly skill as well as quiet courage with which, as the

720

CHAP. IV.] BRITISH MINISTERS BEFORE 1812. [§ 107.

highest English authorities ou international law now concede, liad been
discharged the international duties of the successive A«lmiiiist rations
of the United States down to the period of his arrival. lie must liave
known that if any indignities had been ollered to hiui or his h-gation
it was only necessary for him to sta.'e the fact to the Secretary of State
in order to obtain redress. He made no such statement, brcausr there
■was no such indignity offered to him. He withdrew iVom ^^ asliington
when his intolerable insolence made it imi)ossible for the (lovcrnuuMit
to deal officially with him, and when, incensed as were the publicists
and statesmen of the continent of Europe at his overbearing conduct
at Copenhagen, as vs^ell as at the arbitrary and arrogant tone assumed
by his Government even to those European i)owers with whi(;h it was at
peace, he found at Washington nodefenders among the diplomatic corjts.
He left his post partly because in a place consisting ahn<»st entirely
of official society he thus isolated himself and termin.ited his relations
with the Government, and partly because, to his peculiarcomprclicnsion,
such a departure was to be regarded, as his dei)arture under similar cir-
cumstances from Coi)euhageu had been, as a tinal threat of the swift pun-
ishment he expected his Government to inflict. But the falsity of the
pretext he afterwards set up of indignities oflered to him by Washington
" mobs " is shown, not merely by the circumstances of the case which
made, as we will presently see, such "mobs'" impossible, but by the fact
that at the time he neither mentioned them to his family, in the (•oi)ioua
correspondence he maintained with them, nor asked of this Government
protection from them. The only complaint bearing on the subject that
is discoverable is the following:

"As Mr. Jackson has been already once most grossly insulted by the
Inhabitants of the town of Hampton, in the unprovoked language of
abuse held by them to several officers bearing the King's uniform, when
those officers were themselves violently assaulted and put in imminent
danger," he requests a passport tbr himself and family.

Mr. Oakley, British Sec. of Legation, to Mr. Smith, Sec. of State, undated (re-
ceived Nov. 11, 1809). 3 Am. St. Pap. (For. Rel.), :U9.

Tf the anecdotes told in Mr. Jackson's family letters of Mr. Oakley's
inefficiency and absurdity are to be relied on, Mr. Oakley's state-
ments are not to be regarded as high authority. But giving this sol-
itary complaint which was made by the British legation ot insults to
Mr. Jackson (sent, also, after Mr. Jackson's dismissal), its utmost sig-
nification, it reduces the insults to " unprovoked language ot abuse
held by "several" "of the inhabitants of the town ot Haiiipton (a
little fishing village im Virginia near the mouth of the James Kiver) "to
several officers bearing the King's uniform," abuse of these oQicers
being by construction abuse of Mr. Jackson, who was m.t within an
hundred miles of the place. Mr. Jackson, having previously been
dismissed from Washington, asked, ui>on this - insult, '| liis pas*^-
port." But what for? To leave the country ? To do tins he had no
intention. His "passport" was to take him to Philadelphia or New
York, there to set up his legation as a center of hostile operations by
acting on parties whom he supposed disaftected to the Government.

So far as Washington is concerned, the pretense set up atterwards
by Mr. Jackson to cover his retreat, that it was governed by a " '""^
who threatened hun with personal violence, la absurdly untrue. W asU-
ington was at the time, as he himself in his taiuily letters declares, a
mere hamlet, and in such a hamlet, a day's long Journey even Irom

S. Mis. 162— VOL. I 46 ''^^

§ 107. J DIPLOMATIC AGENTS. [CHAP. IV.

Baltimore, no mob could be collected for any purpose whatsoever. !Nor,,
if "mobbiug" was to be done, would anything be more unlikely than
that the British minister should have been selected as its victim. The
Federalists in Congress, though not numerous in those days, attacked
the Administration with a virulence almost without parallel in our
history ; and it is sufficient to read Mr. Quincy's speech on Mr. Jack-
son's mission to see that if there had been any danger of insult to be
feared, that danger was to have been feared by Mr. Quincy and those who
sustained him in his vehement assaults on the Administration, and not
by Mr. Jackson, whose misdeeds were covered by the veil of diplomatic
confidence. But there was no danger of personal insult to any one. The
fault of the Administration was not undue belligerent animosity, but
imdue pacific tendencies toward Great Britain, and so Mr. Quincy ad-
mitted, when he declared in Congress, in words which show how tolerant
was public sentiment, that the submissiveness of the Administration to
Great Britain was such that it could not " even be kicked into a war." It
is not necessary to ascribe Mr. Jackson's flight from Washington to fear.
It was probacy partly in anger, partly in conformity with the "Copen-
hagen" precedent, as above noticed. But a hasty and angry departure
there was, and a removal " of t-he legation to New York," preceded by a
sort of political progress through Baltimore and Philadelphia, where,
according to his own account and that of his wife, so far from being met
with insults (though there at least he was in cities where mobs were possi-
ble), he and his family were overwhelmed with even oppressive hospi-
talities. After these alleged ovations he moved to New York and Bos-
ton, where similar receptions he declared awaited him. When he
arrived at Boston he was entertained by the extreme Federalists, then,
according to Mr. J. Q. Adams, brooding over schemes of disunion, at a
dinner in which he gave a toast so flagitiously insolent to the Govern-
ment that Mr. Madison was compelled to direct that his recall should
be immediately demanded. Sir A. Alison thinks that this was one ot
the causes of the war of 1812. The dismissal by itself was not such a
cause, for it was justly merited. But the announcement of the British
Government that it saw no reason to be displeased with Mr. Jackson's
conduct should have been met by the Government of the United States
with a demand for a retraction, the refusal of which to have been fol-
lowed by a declaration of war, anticipating by three years that of 1812.
Had a minister, accredited by the United States to the British Gov-
ernment, begun his work by dictating to the head of that Government
in what way he was to be socially entertained ; had he started off on
his diplomatic career by charging that Government with falsehood and
duplicity in its prior negotiations; had he admitted, when this was
gravely pointed out to him, that such was his intention, and repeated
the offense ; had he declared, when further intercourse with him was
refused, that he would no longer remain at the seat of Government, and,
supjjosing the seat of Government was then at some secluded village,
announced that he left from fear of "the mob ;" if, after such a depart-
ure, and after being requested to leave the country, instead of doing so
he had gone on a progress through a series of cities, in which alone
" mobs" could have been collected, exciting opposition to the Adminis-
tration and giving "toasts" insulting it; if, after the Government of
the United States had been informed of this conduct, it had indeed re-
called the minister, but announced that it saw nothing in his proceed-
ings to disapprove of; if such should have been the course taken by the
United States to Great Britain, the reply would have been " you must

722

CHAP. IV.] BEITISH MINISTEKS BEFORE 1812. [§ 107.

ai)ologize for insults so flagrant and for actions so derogatory to our
])o:!;ition as a great power, claiming at least equality with any power on
the globe. You must not only recall your minister but you must dis-
avow his proceedings."

That this course was not taken by Mr. Madison is to be explained by
his constitutional aversion to war, strengthened by the conviction which
he had inherited from Mr. Jefl^erson, and which was shared by Mr.
Gallatin, his chief adviser, that war, in itself, a great evil, would be
peculiarly so when waged by the United States, with resources as yet
imi)erfectly developed, with a coast as yet unfortilied, with a uavy as
yet in embryo, against Great Britain, then unchallenged sovereign of the
seas, to whom, in spite of the hardness and arrogance of her treatment
of her colonies, which Burke had so vividly described, and which con-
tinued to mark her demeanor to the United States, a large portion of
the country still looked with an aflection which even two wars have not
been able yet to extinguish. But more than any purely personal afl'air
since the Revolution did Mr. Jackson's conduct in his mission and its
approval by the British Government tend to render the preservation
of peace difficult, and this detailed notice of his mission may be of
service in this place for the purpose of illustrating the importance
in diplomatic intercourse of courtesy, of candor, of truthfulness, of
manly courage and dignity, and of scrupulous avoidance of interfer-
ence in the domestic politics of the country of residence. It is for-
tunate that the recent ingenuous publication of Mr. Jackson's family
correspondence, and the possession by the Department of State of the
private papers of Mr. Jefferson, Mr. Madison, and Mr. Monroe have
brought to light the true circumstances of Mr. Jackson's dismissal — a
dismissal which was made by the British administration at the time, as
well as by British historians subsequently, a ground for grave com-
plaint against the United States. The dismissal was a necessity ; the
approval of his conduct by Great Britain was an insult which no high-
spirited nation should have tamely borne.

The change produced by the war of 1812 in the tone of the British
ministers at Washington is very marked. "Their first war with Eng-
land," said the London Times in April, 1817, speaking of the United
States, " made them independent; their second made them formidable."
(3 Schouler, U. S., 22.) With this consciousness on the part of England,
the English attitude to the United States underwent a change. Bagot,
who was the first permanent minister after the war, was not merely an
experienced practical diplou-vatist, but a man of kindly temper, of con-
siderate manners, and of a social position at home so high as not to
make him think it necessary to set up pretensions to superiority whet)
abroad. He was assisted also by a wife whose attractiveness and good
sense added greatly to liis popularity' in all quarters. Under the era of
ministers which thus began the diplomatic relations between the coun-
tries were freed from those irritating elements by which they had been
disturbed prior to the war.

Of the ministers who served the United States in London in those
troubled days it may at least be said that they were not only well versed
in that system of international law in relation to neutral rights, in form-
ulating which the United States is now universally acknowledged to
have taken the lead, but that they were men of marked dignity and
courtesy, on whom even the" most supercilious critic could make no per-
sonal criticism and to whom no one of the British secretaries with whom
they did business imputed any personal fault. Of Mr. Jay and of Mr.

723

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

Thomas Piiickney it is scarcely necessary to say that men of liigher
tone, of more simple truthfulness, of more delicate sense of honor, could
not be found. Of Mr. Monroe and Mr. William Pinkney, whose mis-
fortune it was to negotiate a treaty with Great Britain which Mr. Jeff-
erson when President declined to accept, on the ground that it left the
chief causes of difference still open (see infni, § 1.506), a few words may be
here hazarded. Mr. Monroe has had a singular place in the opinion of his
countrymen. He has always been regarded as a man of marked simplic-
ity, exact truthfulness, great generosity, and a high sense of honor.
He was the last officer of the Revolutionary war to fill a high civil sta-
tion ; he was the last of the illustrious line of the Virginia Presidents ;
he closed this lineage by a career distinguished, like that of his prede-
cessors, by dignity, by official purity, by unsectioual patriotism, and
by unflinching fidelity to duty. He had not, like Washington, the
opportunity to exhibit that majestic forritude and wise leadership
which enabled Washington to overthrow an old government by which
order and liberty were imperiled, and to establish a new government in
which order and liberty were to be established. He had not that political
genius which enabled Jefferson to forestall the future, nor, while accept-
ing Jefferson's principles, could he present them with Jefferson's buoy-
ant and fascinating enthusiasm ; he had not Madison's power of calm
judicial statement; but he combined, as became the last of that re-
markable series of statesmen, some of the best qualities of each. It is
true that when in the Senate during Washington's administration he
opposed that administration in its foreign policy, and incurred Wash-
ington's displeasure. But in his old age his earlier affection towards
his former chief revived. With Washington, in fact, he had much in com-
mon. Like Washington, and unlike Jefferson, he did not, by his per-
sonal genius, impress his views on his Cabinet, but, collecting statesmen
of ability of different schools, he sought not merely to harmonize their
counsels, but by patiently weighing these counsels when conflicting to
arrive at a just and wise conclusion of his own. To Jefferson's distinct-
ive principles of liberalism he always remained faithful as a disciple,
though it would not have been his nature to have originated them as a
chief. His style in his political papers was unassuming and plain, and
sometimes, like that of Washington, inelegant and labored, wanting
Jefferson's felicity and Madison's exact lucidity. In his bearing and
social usages as President he followed Washington much more closely
than he followed Jefferson or Madison; his manner became, as he grew
older, more formal and reserved ; his diplomatic experience, in particular,
as well as the difficulties of his immediate predecessors, taught him how
great were the embarrassments arising from familiar conversation be-
tween the Chief Executive and foreign ministers. This dignified reti-
cence he gradually applied to his intercourse with all public men, out-
side of bis Cabinet. Not a cloud ever fell on his fair fame. Of him, as
well as of his predecessors in that illustrious succession, it could be said
that with the opportunities of wealth showered on them, public life was
to them the cause of i)ecuniary loss, not of gain ; and in his owu partic-
ular case it is well known that his hospitality when minister abroad,
and afterwards at Washington, involved him in expenses so much in
excess of his salary as to absorb his modest patrimon.y. (See infra,
§ 107c.) Of neither him or them, also, could it be said that political
patronage was used to favor relatives or to pay personal services.
During Washington's administration Monroe's affections were known

724

CHAP. IV.] MONROE AS A NEGOTIATOR. [§ 107.

to turu strougiy toward France, whicli bis cojiduct toward that Goverii-
lueut when minister at Paris was sui)posed to Lave unduly disjilayedj
nejjotiatious into whicli he had entered with France were disavowed,
and he was recalled in a manner marking strong disapprobation. That
this was in a large measure undeserved subsequent tlevelopments
have shown ; but be this as it may, his next appearance in the dij)-
lomatic field was marked by a singular triumph. Upon the question
of the comparative efficiency of Mr. Monroe and of Mr. K. Livingston
in the Louisiana negotiation — a question afterwards so much debated —
it is not necessary now to enter; it is enough to say that the negotia-
tion faltered until Monroe's arrival at Paris, and that it was under the
finishing touch given by him, at a period when ^Napoleon was forced to
cede Louisiana or to run the risk of losing it altogether in the war
about to reopen, that thepurchaseof that splendid province was efiected.
Before this Mr. Monroe had been looked upon as a destructive, and on
him the peculiar enmity of the opposition had been poured. The Lou-
isiana treaty showed in him great constructive powers ; in his negotia-
tions with Great Britain, so far from indicating undue prejudice against
that haughty power, his course was marked not only by the courtesy and
simplicity which under no circumstances did he lose, but by concessions
to Great Britain which, as has been said, wise as they may have been,
went as far in some respects as did Mr. Jay's treaty, and went too far to
be accepted by Mr. Jefferson. During the greater part of Mr. Madison's
administration he was Secretary of JState; during the whole of his own
administration he revised every important dispatch sent out by Mr.
Adams, Secretary of State, and, as we learn from Mr. Adams's diary and
from the drafts still existing in the Department of State, modified them
so as to adapt them to his own scheme of foreign policy. He conducted
the foreign affairs of the United States, therefore, for a longer period
than has any other of our statesmen, and he conducted them with
great success through great vicissitudes.

At the beginning of his political career he was looked upon by the
more sober part of the community as a reckless revolutionist. During
his Presidency he was regarded by men of bold thought as a cautious
conservative. He was the only President except Washington whose
reelection was unopposed. Since his death it has been the fashion to
speak of him as uestitute of force ; out as to the ability and strength
of will shown by him it is only necessary to repeat what was said of
him by both Mr. Calhoun and Mr. Adams, that among all the ])ublic
men with whom they had dealt he most perfectly united conscientious-
ness, courtesy, thorough knowledge of foreign jjolitical conditions, high
])atriotism, national spirit, sound judgment, jiatient industry in mas-
tering details, with resolute maintenance of purpose. So far as con-
cerns the negotiations with England while he was minister there, it
may be truly said, after an examination of the large correspondence
relating to that era, now accessible, that not only is there uot one word
coming from either side in those heated controversies which should lead
a citizen of the United States to look on him otherwise than with pride,
but that in ability, candor, and fairness, Mr. Monroe's papers stand in
the front rank of diplomatic documents.

These remarks in respect to Mr. Monroe may not appear too discursive
when it is recollected that of the servants of the public he is to be looked
back upon as the one who was longest, as minister. Secretary, and Pres-
ident, connected with this Department, and that in it, in the shape of
the papers left by him, still exists, unveiled, his monument ; and it may

725

§ 107.] DIPLOMATIC AGENTS. [CHAP. IV.

tlius not be out of place to say how fully, iu couuectioii witli the docu-
ments i^ublisbed in these volumes, these papers testify to his high honor,
his wise statesmanship, his steady faith in liberal institutions, his devo-
tion to his country as a whole, and his perfect disinterestedness and pu-
rity as a public man.

Mr. Pinkney, who bore, first with Mr. Monroe and then alone, the
difiScult and ungracious burden of those eventful negotiations, was,
as a lawyer, recognizee, not merely by the body of the bar but by
Chief-Justice Marshall and Judge Story, as at the head of his profes-
sion, both as an orator and a jurist; and international law had been re-
garded as the tield in which he was peculiarly master. He was well
fitted, by his courtesy and tact, for diplomatic intercourse. So far from
being embarrassed by any national antagonism to England, the only
criticism made by him in this respect was that sometimes suggested
by his countrymen, that he was so thoroughly English in his habits as
to yield too much socially to English pretensions. But he yielded noth-
ing in his public relations. Scrupulously courteous he always was; but
nowhere are the arguments for the positions taken by the United States
on the pending issues more forcibly put than in those emanating from
his pen.

It may be said that in this notice of the diplomatic treatment of the
United States by Great Britain prior to the war of 1812 the ungracious
attitude ol' Great Britain is brought out in undue prominence, while the
ungracious attitude of France is left out of sight. But there is this mate-
rial difference. France wished the United States to become a great na-
tion. Great Britain, not yet recovered from the humiliation of the Rev-
olutionary war, would gladly have reduced the United States to the ser-
vility of a dependent. France took with us the liberties of an affectionate
but 'somewhat extravagant friend. Great Britain, not yet convinced of
the permanence of our independence, maintained towards us the atti-
tude of an offended guardian, whose title to obedience remained although
his power was temporarily thrown oft". France looked on the United
States with pride, as a nation which she had aided in bringing into
existence; Great Britain looked on the United States with auger and
aversion, as a colony which had ungratefully flung off" her protecting
hand, and aided in inflicting on her a crushing defeat. Undoubtedly
Genet was absurdly disrespectful, but his disrespect was of a character
utterly different from the sulky repulsiveness of Hammond, the random
im])erdnence of Merry, the calculated insolence of Jackson. Genet
rushed into the country with his arms open for an embrace, ready to
enter into any alliance we might propose, no matter how close ; Ham
mond stood moodily with his hands behind him, refusing even to an-
swer the most conciliatory business notes. Genet was offended be-
cause the nation did not exist in a continuous fete devoted to Uberty ;
Hammond was offended because the nation existed at all. Genet
would have adorned the nation with liberty caps and with floral
symbols of emancipation that might have appeared absurd. Ham-
mond would have subjected it once more, at least in its foreign pol-
itics, to the yoke of Great Britain. Genet, wheu the guarantee by
the United States of France's West India ])ossessions was brought to
his notice by Jefferson, with the statement that this guarantee was one
the United States had not the means to execute, said at once that it
would be released by France. When Hammond was remonstrated with
for the <letention by' Great Britain of Niagara, of Oswego, of Fort Erie,
of Michilimachinaw, of Detroit, and the adjacent territory, in defiance

726

'chap. IV.] NEGOTIATORS BEFORE 1812. [§107.

of treaty, and for the iucitemeut by British emissaries to prey on our
settlements, he remaiDed defiantly silent. Genet was sometimes ridicu-
lously annoying and. familiar, but this was amply atoned for by his re-
call, and by the statement of the French directory that if he remained in
the country we might i)unish him as we chose. Hammond retained to the
end his contemptuous seclusion, rejecting hosi)itaIity and refusing to
explain grievances, and in this course, directed by his Government, his
Government sustained him. Revolutionary France treated us with the
ardor and freedom with which one nation, not a little denionstrative,
just liberated from a heavy yoke, would be likely to treat another a lit-
tle its senior in the work of emancipation. To reactionary Great Brit-
ain we still appeared as a rebellious dependent, to whom the attitude of
domineering superiority was to be maintained. It is true that after-
wards, when the French Government progressed in its tremendous con-
flict with Great Britain, it authorized outrageous spoliations on our
commerce and treated with no little disrespect our ministers whom we
sent to call for redress. (See .svpra, §§ 83, 84; infra, §§ 148^., 228.)
Great Britain also did the same. But there was this difference. The
spoliations of France were paid for, those before 1800 in the cession of
Louisiana, those afterwards very tardily, it is true, but at last satisfacto-
rily by treaty under Louis Phillippe (see iw/ra, § 318). Those of Great
Britain after 1798 were never paid for, and the claims were wii)ed out
in the war of 1812. France, also, under the directory, withdrew from
her isolation, and proposed to receive our ministers with the respect
due the envoys of a great and independent nation (see supra, §§ 83, 84,
85; infra, § 14s ^.). Whatever may have been the insults offered to us
by British ministers. Great Britain, while, as in the case of Jackson,
accepting a dismissal, approved of the misconduct which required it.
Even when in the Napoleonic wars we were exposed to almost equal
aggressions from the two great contending powers, there was the same
contrast in diplomatic tone. The selfish greed of Talleyrand was veiled
in courtesy and respect; advances from Great Britain, equally selfish,
though meant to bo friendly, were embittered by Wellesley's noncha-
lent superciliousness or Canning's elaborate sneers. Nor was it unnat-
ural that it should have been so. The peace policy of Jefferson and
Madison, necessary as it may have been at the time, had nothing in it
to break the illusion of Great Britain that her old colonies were still
more or less subject at least to her overwhelming supremacy on the
sea. It took the war of 1812 to destroy this last pretense of retention
of her old authority, and to place the diplomatic relations of the two
powers on that basis of mutual respect and courtesy on which they
have ever since remained.

As to Mr. Jackson's dismissal, see further, $ 84.

"The Danish convention was the pioneer treaty for indemnities re-
sulting from maritime spoliations, growing out of the 'continental
system.' That the success of the negotiation was, in a great <legree,
to be attributed to the personal character and si)ecial qualities of Mr.
Wheaton cannot be doubted by any one who reads the passages which
we have cited from eminent publicists. An American Senator ascribes
the result to the fact that President Jackson, disregarding in his case the
mischievous system which treats all public ofiices, at home and abroad,
as mere rewards for partisan services, and distributes them without in-
quiry as to the peculiar qualifications of the candidates, ' did not change

727

§ 1 07.] DIPLOMATIC AGENTS. [CHAP. IV.

the negotiator — did not substitute a raw for an experienced minister.^
(Benton's Thirty Years' in the Senate, vol. i, p. 603.)"

Lawreuce's Wheaton (ed. 1863), 871.

" That diplomacy has been deeply tainted with the vices of dissimu-
lation and falsehood is certain. Secret treaties, and still more secret
articles annexed to published treaties, are in the nature of lies ; for a
treaty is essentially a public engagement, and to publish a part as tlie
whole, keeping the remainder undisclosed, is to palm off an imposition
upon Europe. And yet the arguments for truth aud openness in inter-
national affairs are plain and irresistible. Without them there can be no
confidence, and on the confidence which a diplomatist inspires his whole
success depends. * * * 'In politics,' said Segur, * and in storn)y
times, the true dexterity is a courageous good faith. Character saves
men from the dangers on which subtlety makes shipwreck, and firm sin-
cerity alone can give solidity to success or dignify misfortune.' ' It is
scarcely necessary to say,' wrote Lord Malmesbury, among the sugges-
tions which, late in life, he sent to a young man just eu.tering the pro-
fession, ' that no occasion, no provocation, no anxiety to rebut an unjust
accusation, no idea, however tempting, of promoting the object you
have in view, can need, much less justify, a falsehood. Success ob-
tained by one is a precarious and baseless success. Detection would not
only ruin your reputation forever, but deeply wound the honor of your
court. If, as frequently happens, an indiscreet question which seeuis
to require a distinct answer is put to you by an artful minister, parry it
either by treating it as an indiscreet question, or get rid of it by a grave
and serious look, but on no account contradict the assertion flatly if it
be true, or admit it if false and of a dangerous tendency.'"

Bernard on Diplomacy, 127.

As to importance of American diplomacy, 8ee 22 Atlantic Monthly (1868), 348.
, Address by Mr. R. H. Dana, 20 Scribuer'e Mag., 616 (1«80).

"In the ceremonies on all formal occasions the diplomatic agent will
be governed by the established usage of the country of his official resi-
dence. There is usually at foreign courts an officer having charge of
such ceremonial matters, and it may often be advisable to confer with
him informally in order to insure appropriate conformity to established
rules.

" There is alsp in each country an established rule as to official calls.
The diplomatic agent should, immediately upon his arrival, inform him-
self upon this subject, and conform strictly to the rule.

" If the legation be provided with a secretary, the newly-arrived
diplomatic agent should be accompanied by him in the official cere-
mony of presenting credentials, aud in his subsequent official visits to
his colleagues.

'• A legation is not under the same necessity of display ing a coat of
arms and raising a flag as a consulate;' but it is in most capitals cus-
tomary to i)lace an official shield above the principal entrance of the
diplomatic agent's residence, or the offices of the legation when these
are separate from his residence, with a short flag-staff set above the
shield, on which to display the United States flag on occasions of special
ceremony, such as the Fourth of July and Washington's Birthday, and
also, by way of courtesy on any national celebration in the country
where the legation is situated."

Printed Pers. Inst., Dip. Agents, 1885.

728

CHAP. IV.] SOCIAL INTERCOURSE. [§ 107a.

(2j Social intercourse.
5 107a.

" We went up to diuuer. I went up with the comte alone. He
showed me into the room where were the ladies and the company. I
singled out the countess, and went up to her to make her my compli-
ments. The countess and all the ladies rose up. I made my respects to
them all, and turned round and bowed totherest of the company. The
count, who came in after me, made his bows to the ladies, and to tlie
countess last. When he came to her he turned round and called out,
' Monsieur Adams, venez ici, voil^ la Comtesse de Vergeimes.' A no-
bleman in the company said, 'Mr. Adams has already ma<le his court to
Madame la Comtesse.' 1 went up again, however, and spoke agaiu to
the countess, and she to me. When dinner was served the comte led
Madame de Montmorin, and left me to conduct the countess, who gave
me her hand with extraordinary condescension, and I conducted her to
table. She made me sit next to her on her right hand, and was remarka-
bly attentive to me the whole time. The comte, who sat opposite, was
constantly calling out to me to know Avhat 1 would eat, and to ofler me
petits gateaux, claret, and Madeira, «&c. In short, I was never treated
with half the respect at Versailles in mj' life.

" In the ante-chamber, before dinner, some French gentlemen came
to me and said they had seen me two years ago; said that I had shown
in Holland that x^mericans understood negotiation as well as war. The
compliments that have been made me since my arrival in France upon
my success in Holland would be considered as a curiosity if committed to
writing. ' Je vous felicite sur votre sneers 'is common to all. One
adds : ' Monsieur, ma foi, vous reusse bien merveilleiisement. Vous
avez fait reconnoitre votre ind^pendance ; vous avez fait un traits, et
vous avez procur6 de I'argent. Voila un succes parfait.' Another says:
' Vous avez fait des merveilles en Hollaude ; vous avez culbut6 le
iStathouder et le parti Anglois ; vous avez donn6 bien du mouvement,
vous avez remu6 tout le monde.' Another said : ' Monsieur, vous etes
le Washington de la n^gociation.' This is the finishing stroke. It is
impossible to exceed this. Comi)liments are the study of this people,
and there is no other so ingenious at them."

Mr. Adams' Diaiy, Nov. 10, 1782. 3 John Adams' W^orks, 306.

"The Vice-President has the honor to present his humble opinion on
the points proposed for his consideration.

" 1. That an association with all kinds of company, and a total seclu-
sion from society, are extremes which, in the actual circumstiinces of
this country, and under our form of government, may be properly
avoided.

''2. The system of the President will gradually develop itself in
practice without any formal communication to the legislature or publi-
cation from the press. Paragraphs in the public prints may, however,
appear from time to time, without any foinuil authority, that may lead
and reconcile the ])ul)lic mind.

"3. Considering the number of strangers from many countries and
of citizens from various States who will resort to the seat of Govern-
ment, it is doubted whether two days in a week will not be indispensa-
ble for visits of compliment. A little experience, however, will eluci-
date this point.

729

•§ 107«.] DIPLOMATIC AGENTS, [CHAP. IV.

'• 4. liiuler the fourth bead it is submitted to consideratiou whether
nil ])ersonal ai)plicatioDS ou^htuot to be made, in the first instance, to a
minister of state. Yet an appeal should be open, by petition, to the
President, who, if he judges the subject worthy of it, may admit the
party to a personal iuterview\ Access to the supreme magistrate ought
not to be rigorously denied in any case that is worthy of his considera-
tion. Nevertheless, in every case the name, quality, and, when these
are not suflBcient to raise a presumption in their favor, their business
ought to be communicated to a chamberlain or gentleman in waiting,
who should judge whom to admit and whom to exclude. Some limita-
tion of time may be necessary, too — as, for example, from eight to nine
or ten — for, without it. the whole forenoon, or the whole day, may be
taken up.

"5. There is no doubt that the President may invite what of&cial
characters, members of Congress, strangers, or citizens of distinction
he pleases tn small parties without exciting clamors, but this should
always be done without formality.

" 6. The entertainments mentioned in this article would much more
properly be made by a minister of state for foreign or domestic aflairs,
or some other minister of state, or the Vice-President, whom, upon such
occasions, the President, in his private character, might honor with his
presence. But in no case whatever can I conceive it proper for the
President to make any formal )>ublic entertainment.

" 7. There can be no impropriety in the President's making or receiv-
ing informal visits among his friends and acquaintances at his pleasure.
Undress, and few attendants, will sufficiently show that such visits
are made as a man, a citizen, a friend, or acquaintance. But in no case
whatever should a visit be made or returned -in form by the Presi-
dent, at least, unless an Emperor of Germany or some other sovereign
should travel to this country. The President's pleasure should abso-
lutely decide concerning his attendance at tea-parties in a private char-
acter, and no gentleman or lady ought ever to complain if he never, or
rarely, attends. The President's private life should be at his own dis-
cretion, and the w orld should respectfully acquiesce. As President he
should have no intercourse with society but upon public business or
at his levees. This distinction, it is with submission ayjprehended,
ought to govern the whole conduct.

" 8. A tour might, no doubt, be made with great advantage to the
public if the time could be spared, but it will naturally be considered,
as foreign affairs arrive every day, and the business of the executive
and judicial departments will require constant attention, whether the
President's residence will not necessarily be confined to one place."

Vice-President Adams to President Washington, May 17, 1789. 8 John Adama'

Works, 491.
As to precedence at dinners, see 3 John Adams' Works, 122, 127, 276, 305.

" I can truly say I had rather be at Mount Vernon, with a friend or
two about me, than to be attended at the seat of Government by the
officers of state and the representatives of every i)0wer in Europe.

" These visits are optional. They are made without invitation. Be-
tween the hours of 3 and 4 every Tuesday I am prepared to receive
them. Gentlemen, often in great numbers, come and go, chat with each
other, and act as they please. A porter shows them into the room, and
they retire from it when they please, and without ceremony. At their
first entrance they salute me, and I them, and as many as 1 can talk to

730

CHAP. IV.] SOCIAL INTEECOURSK. [§ 107a.

I do. What i)OU)i) there is in all thi;^ I am unable to discover. Perliaps
it consists in not sitting'. To this two reasons aie opposed : tirst, it is
unusual; secondly, which is a more substantial one, Ixcause I iiave no
room hxrge enough to contain a third ofthe chairs, whicli woukl besufli-
cient to admit it. If it is supposed that ostentation or tl»e fashions of
courts (which, by the by, 1 believe originated ofteuer in convenience, not
to say necessity, than is generally imagined) gave rise to this custom,
I will boldly aflirm that no supposition was ever more erroneous; for,
if I were to give indulg^^nce to my inclinations, every moment that 1
could withdraw fiom the fatigue of my station should be spent in re-
tirement. That it is not, proceeds from the sense 1 entertain of the pro-
priety of giving to every one as free access as consists with that respect
which is due to the chair of Government. And that respect, I conceive,
is neither to be acquired nor preserved but by observing a just mediuui
between much state and too great familiarity."

President Washiugton to Mr. Stuart, June 1.5, 1790. 10 Washington's Writings,
100.

"At a distance from the theater of action truth is not always related
without embellishment, and sometimes is entirely perverted from a mis-
concei)tiou of the causes which produce the effects that are the subjects
of censure. This leads me to think that the system which 1 found it
indispensably necessary to adopt on my first coming to this city might
have undergone severe strictures, and have had motives very foreign
from those that govern me assigned as causes thereof. I mean, first,
returning no visits ; secondly, api)ointing certain days to receive them
generally, not to the exclusion, however, of visits on any other days
under particular circumstances ; and, thirdly, at first entertaining no
company, and afterwards (until I was unable to entertain any at all)
contiuing it to otficial characters. A few days evinced the necessity of
the two first in so clear a point of view that, had I not adopted it, 1
should have been unable to attend to any sort of business, unless 1 had
applied the hours allotted to rest and refreshment to this purpose, for
by the time I had done breakfast, and thence till dinner, and after-
wards till bed time, I could not get relieved from the ceremony of one
visit before I had to attend to another ; in a word, I had no leisure to
read or to answer the dispatches that were pouring in ujjou me from all
quarters."

President Washington to Mr. Stuart, July ^f!, 1769. 10 Washington's Writ-
ings, 18.

" Mr. Merry has been with us some time. He appears to be an amia-
ble man in private society, and a candid and agreeable one in public
business. A foolish circumstance of etiquette has caused some irrita-
bility in Mrs. Merry, and i)erhaps himself, but they will tind so uniforiu
and sincere a disposition in all connected with the Government to cul-
tivate a cordial society with them, and to manifest every proper respect
for their character and station, that if any unfavorable impression lias
happened it must be very transient. It would be unfortunate if it were
otherwise, because a dissatisfaction of whatever sort, or however pro-
duced, might mingle itself with his general feelings, and through them
•with the agency committed to him."

Mr. Madison to Mr. Monroe, Dec. 20, 180:3. MSS. Monroe Pap., Dept. of State.

731

§ 107a.] DIPLOMATIC AGENTS. [CHAP. IV.

" Mr. Merry is with us, and we believe him to be personally as desir-
able a character as could have been sent us. But he is unluckily asso-
ciated with one of an opposite character in every point. She has already
disturbed our harmony extremely. He began by claiming the first visit
from the national ministers. He corrected himself in this. But a pre-
tension to take precedence at dinners, &c., over all others is persevered
in. We have told him that the principle of society, as well as of Gov-
ernment, with us, is the equality of the individuals composing it, that
no man here would come to a dinner where he was to be marked with
inferiority to any other, that we might as well attempt to force our prin-
ciple of equality at St. James's as he his principles of precedence here.
I had been in the habit, when I invited female company (having no lady
in my family), to ask one of the ladies of the four Secretaries to come
and take care of my comjjany ; and as she was to do the honors of the
table I handed her to dinner myself. That Mr. Merry might not con-
strue this as giving them precedence over Mrs. Merry, I have discon-
tinued it, and here as well as in private houses the pile- mele practice is
adhered to. They have got Yrujo to take a zealous part in the claim of
precedence ; it has excited generally emotions of great contempt and
indignation (in which the members of the legislature participate visi-
bly) that the agents of foreign nations should assume to dictate to us
what shall be the laws of our society. The consequence will be that
Mr. and Mrs. Merry will put themselves into Coventry, and that he will
lose the best half of his usefulness to his nation, that derived from a
perfectly familiar and private intercourse with the Secretaries and my-
self. The latter, be assured, is a virago, and in the short course of a
few weeks has established a degree of dislike among all classes which
one would have thought impossible in so short a time. Thornton has
entered into their ideas. At this we wonder, because he is a plain man,
a sensible one, and too candid to be suspected of wishing to bring on
their recall and his own substitution. To counterwork their misrepre-
sentations it would be well their Government should understand as
much of these things as can be communicated with decency, that they
may know the spirit in which their letters are written. We learn that
Thornton thinks we are not as friendly now to Great Britain as before
our acquisition of Louisiana. This is totally without foundation. Our
friendship to that nation is cordial and sincere, so is that with France.
We are anxious to see England maintain her standing, only wishing she
would use her power on the ocean with justice. If she had done this
heretofore other nations would not have stood by and looked with uncon-
cern on a conflict which endangers her existence. We are not indiffer-
ent to its issue, nor should we be so on a conflict on which the existence
of France should be in danger. We consider each as a necessary instru-
ment to hold in check the disposition of the other to tyrannize over
other nations. With respect to Merry, he appears so reasonable and
good a man that I should be sorry to lose him as long as there remains
a possibility of reclaiming him to the exercise of his own dispositions.
If his wife perseveres she must eat her soup at home, and we shall
endeavor to draw him into society as if she did not exist. It is unfor-
tunate that the good understanding of nations should hang on the
caprice of an individual who ostensibly has nothing to do with them."

Presldeut JeflFerson to Mr. Monroe, Jan. 8, 1804. (Unofficial.) MSS. Monroe
Pap., Dept. of State.

732

CHAP. IV.] SOCIAL INTERCOURSE. [§ 107rt.

The next step was as follows :

" Thomas Jelfersoii asks the favor of Mr. Merry to dine with a small
party of friends on Monday, the 13llb, at half past three.

" February 9, 1804."

Mr. Merry replied at once, saying that he had " engaged some com-
pany to dine with him on that day. Under the circumstances, how-
ever, he would have informed himself whether it is the usage, as is the
case in most countries, for i)rivate engagements of every kind to give
way to invitations from the Chief Magistrate of the United States;
and if such were the usage, he would not have failed to have alleged
it as a just apology for not receiving the company he has invited. But
after the communication which Mr. Merry had the honor to receive
from Mr. Madison on the 12th of last month, respecting the alteration
which the President of the United States had thought i)roper should
take i)lace in regard to the treatment to be observed by the Executive
Government towards foreign ministers from those usages which had
been established l)y his predecessors, and after the reply which Mr.
Merry had the honor to make to that notice, stating that notwithstand-
ing all his anxiety to cultivate the most intimate and cordial intercourse
vwth every (member) of the Government, he could not take ui)on him-
self to acquiesce in that alteration, on account of its serious nature,
which he would, therefore, report to his own Government, and wait for
their instructions upon it ; it is necessary that he should have the honor
of observing to Mr. Madison that, combining the terms of the invitation
above mentioned with the circumstances which had preceded it, Mr.
Merry can only understand it to be addressed to him in his private ca-
pacity, and not as His Britannic Majesty's minister to the United States.
Now, however anxious he may be, as he certainly is, to give effect to
the claims above expressed, of conciliating, personally and privately,
the good opinion and esteem of Mr. Jefferson, he ho])es that the latter
•will feel how improper it would be on his part to sacrifice to that desire
the duty which he owes to his sovereign, and consequently, how impos-
sible it is for him to lay aside the consideration of his public character.
If Mr. Merry should be mistaken as to the meaning of Mr. Jefferson's
note, and it should prove that the invitation is designed for him in iiis
public capacity, he trusts that Mr. Jefferson will feel equally tliat it
must be out of his power to accept it, without receiving previously,
through the channel of the Secretary of State, the necessary formal
assurances of the President's determination to observe towards him
those usages of distinction which have heretofore been shown by the
Executive Government of the United States to the i)ersons who have
been accredited to them as His Majesty's ministers.

" Mr. Merry has the honor to request of Mr. Madison to lay this ex-
planation before the President, and to accompany it with the strongest
assurances of his highest respect and consideration.

"Washington, February 9, 1804."

To this Mr. Madison replied as follows :

"Mr. Madison presents his compliments to Mr. Merry. He has com-
municated to the President Mr. Merry's note of this morning, and has
the honor to remark to him that the President's invitation, being in the
style used by him in like cases, had no reference to the points of form
which will deprive him of the pleasure of Mr. Merry's company at din-
ner on ^londay next.

"Mr. Madison tenders to Mr. Merry his distinguished consideration.

"Washington, February 9, 1804." '

733

^ 107a.] DIPLOMATIC AGENTS. [CHAP. IV.

Mr. Madison thus comments on the above incidents in a letter to Mr.
Monroe, then on a special mission to England :

"WASHINGTON, February 16, 1804.

" Dear Sir : In a private letter by Mr. Baring I gave you a detail
of what had passed here on the subject of etiquette. I had hoped that
no further jars would have ensued, as I still hope that the good sense
of the British Government respecting the rights of the Government
here to fix its routes of intercourse, and the sentiments and manners of
the country to which they ought to be adapted, will give the proper
instructions for preventing like incidents in future. In the mean time,
a fresh circumstance has taken place, which calls for explanation.

"The President, desirous of keeping open for cordial civilities what-
ever channels the scruples of Mr. Merry might not have closed, asked
me what these were understood to be, and particularly whether he
would come and take friendly and familiar dinners with him. I un-
dertook to feel his pulse through some hand that would do it with
the least impropriety. From the information obtained, I inferred that
an invitation would be readily accepted, and with the less doubt, as he
had dined with me (his lady declining), after the offense originally
taken. The invitation was accordingly sent, and terminated in the
note from him to me, and my answer herewith inclosed. I need not
comment on this display of diplomatic superstition, truly extraordinary
in this age and in this country. We are willing to refer it to the per-
sonal character of a man accustomed to see importance in such trifles^
and over cautious against displeasing his Government by surrendering
the minutest of his or its pretensions. What we apprehend is, that
with these causes may be mingled a jealousy of our disposition
towards England, and that the mortifications which he has inflicted oo
himself are to be set down to that account. In fact, it is known that
this jealousy, particularly since the final adjustment with France, ex-
ists, or is affected in a high degree, and will doubtless give its color to>
the correspondence of the legation with its Government. To apply
an antidote to this poison will require your vigilant and prudent atten-
tion. It can scarcely be believed that the British Government will not
at once see the folly committed by its representative, especially in the
last scene of the farce, and that it will set him right in that respect.
But it may listen with a different ear to the suggestions that the United
States, having now less need of the friendship of Britain, may be yield-
ing to a latent enmity towards her. The best of all proofs to the con-
trary would be the confidential communications you possess, if it were
not an improper condescension to disclose them for such a purpose.
Next to that is the tenor of our measures, and the dictates of our obvi-
ous policy, on an appeal to both of which you may found the strongest
assurances that the Government of the United States is sincerely and
anxiously disposed to cultivate harmony between the two nations. The
President wishes to lose no opportunity, and spare no pains that may
be necessary to satisfy the British administration on this head, and to
l^revent or efface any different impressions which may be transmitted
from hence.

" I collect that the cavil at the pele mSle here established turns much
on the alleged degradation of ministers and envoys to a level with
charges d'affaires. The truth is, and I have so told Mr. Merry, that this
is not the idea ; that the President did not mean to decide anything as

734

CHAP. IV.] SOCIAL INTERCOURSE. [§ 10

I a.

to tbeir comparative grades or importance; that these wouhl be esti-
mated as heretofore; that among themselves they miglit fix their own
ceremonies, and that even at th^ President's table they might seat
themselves in any subordination they pleased. All he meant was, that
no seats were to be designated for them, nor the order in which they
might happen to set to be any criterion of the respect paid to their
respective commissions or countries. On public occasions, such as an
inaugural speech, &c.,the heads of Departments, with foreign ministers,
and others, invited on the part of the Government, would be in the
same pele mele Mithin the space assigned them. It may not be amiss
to recollect that under the old Congress, as I understand, and even in
the ceremonies attending the introduction of the new Government, the
foreign ministers were placed according to the order in which their
Governments acknowledged by treaties the independence of the United
States. In this point of view the pile mele is favorable both to Great
Britain and to Spain.

''I have, I believe, already told you that the President has discoun-
tenanced the banding first to the table the wife of a head of Depart-
ment, applying the general rule of pele mele to that, as to other cases

" The Marquis d'Yrujo joined with Merry in refusing an invitation,
from the President, and has throughout made a common cause with liim,
not, however, approving all the grounds taken by the latter. His case
is, indeed, dilferent, and not a little awkward, having acquiesced for
nearly three years in the practice against which he now revolts.
Pichon, being a charge only, was not invited into the pretensions of
the two plenipotentiaries. He blames their contumacy, but I find he
has reported the aftair to his Government, which is not likely to pat-
ronize the cause of Merry and Yrujo.

" Thornton has also declined an invitation from the President. This
shows that he unites without necessity with Merry. He has latterly
expressed much jealousy of our views, founded on little and unmean-
ing circumstances."

See 2 Madison's Writings, 195.

A letter similar in substance, but of greater length, was sent to Mon-
roe on this subject January 19, 1804.

'' Mr. Merry is perhaps kept as yet a little (disturbed) by the scruples of
etiquette. 1 invited him and his lady to make us a visit, and notwith-
standing the public (obstacle) interposed by him to official civilities, I
should gladly have drawn him into the circle of private hospitality. He
has never dropped a word on the subject of etiquette lately. I suspect
that his Government has been silent and left him to all the embarrass-
ment resulting from that course. He is at bottom a very worthy man
and easy to do business with."

Mr. Madison, Sec. of State (unofficial), to Mr. Monroe, July 21, 1804. Monroe
Pap.

" It here occurs to us that we have omitted to mention a circumstance
which aftbrded the subject of much new Federal indignation. We will
let Mr. Thomas Moore, the Irish poet, preface it in a passage taken from
a letter he wrote to his mother from Baltimore, June 13, 1804, which is
l)ublished in Lord John Russell's Memoirs, Journal and Correspondence
of Moore (vol. i, p. 1C2).

735

§ 107a.] DIPLOMATIC AGENTS. [CHAP. IV.

'' ' I (writes Moore) stopj)ed at Washington with Mr. and Mrs. Merry for
near a week. They have been treated with the most pointed incivility
by the present Democratic President, Mr. Jefferson, and it is only the
precarious situation of Great Britain which could possibly induce it to
overlook such indecent, though at the same time petty, hostility. I
was jjresented by Mr. Merry to both the Secretary of State and the
President.'

" The indecent and petty hostility to Mr. and Mrs. Merry was mani-
fested in this wise : They were invited to dine at the President's. When
dinner was announced Mr. Jefferson chanced to be standing by and
talking with Mrs. Madison at some distance from Mrs. Merry, and he
accompanied the former to the table. Mr. Merry regarded this as almost
an insult.

"Such a stir was made by the angry embassador that Mr. Madison
wrote Monroe (who had succeeded iMr. King as our minister to England),
apprising him of the facts, to enable him to answer an expected call of
the British Government for official explanation. Monroe, however, got
his first information from a friendly British under-secretary, who inti-
mated that he would soon probably hear of the matter through a differ-
ent channel. The minister was delighted. Within a very short period
the wife of an English under-secretary had been accorded precedence
over his own, under analogous circumstances. He had no great fund
of humor, but the absurdity of the whole affair, and the excellent mate-
rials in his possession for a reply to a call for explanations, struck him
in a most amusing light. Shaking with merriment, he hinted to his
informant the satisfaction the call would give him. He never after-
wards heard a lisp on the subject.

"Mrs. Merry tossed her head without shaking the peace of two
nations, and poor Mrs. Madison was saved from involuntarily 'firing
another Tory.' But Merry never forgot this ' pointed incivility,' though
he and his friends knew that, by an express regulation at the White
House, all etiquette in resjiect to official precedence was formally abol-
ished, and though with the most stringent etiquette of the Celestial
Empire in force, it would seem an amusing specimen of impertinence for
him to claim juiority over the Secretary of State of the United States.

"But the farce was not ended. Mrs. Merry thenceforth eschewed
the Presidential Mansion; and if her husband went there, it was only
oflttcially. After the clamor subsided the President felt a good-natured
desire to put an end to this frivolous matter, and to relieve the offended
dignitaries from the awkwardness of their position. Accordingly he
made inquiry through a common friend (the representative, we think,
of the Swedish Government) whether Mr. and Mrs. Merry would accept
an invitation to a family dinner. The former was understood to give
an affirmative answer, and the invitation was sent, written in the Presi-
dent's own hand. The minister replied by addressing the Secretary of
State to know whether he was invited in his private or his official capac-
ity; if in the one, he must obtain the permission of his sovereign; if in
the other, he must receive an assurance in advance that he would be
treated as became his position. The 'Secretary of State' put an end
to the correspondence in a very dry note; and here the affair ended."

3 Randall's Life of Jeiferson, 115 ff.

"Where you are, although it is not pleasant to fall short in returning
civilities, yet necessity has rendered this so familiar in Euroj^e as not
736

CHAP. IV.] SOCIAL INTERCOURSE. [§ 107a.

to lesseu respect for the person where circumstauces do uot permit a
retnru of hospitalities."

Mr. Jefl'ersou, President, to Mr. Mouioe, miuister at Paris, Jan. 8, 1804. Mon-
roe MSS., Dept. of State.

"The gentlemen who composed General Washington's first adminis-
tration took up universally a feature of general hospitality, whicli was
unnecessary, destructive of business, and so oppressive to themselves
that it was among the motives to their retirement. Their successors
profited by the experiment and lived altogether as private individuals,
and so have ever continued to do. Here (at Washington), indeed, it can-
not be otherwise, our situation being so rural that during the vacations
of the legislature we shall have no society but of the officers of the
Government, and in time of sessions the legislature is become and be-
coming so numerous, that for the last half dozen years nobody but the
President has pretended to entertain them."

Mr. Jeft'ersou, President, to Mr. R. E. Livingston, Dec. 4, 1806. 4 Jeft". Works, 337.

According to Mr. Jackson, in a letter writen by him when British
minister at Washington, on October 20, 1800 (liath Archives, Jack-
son Correspondence, 2d series, I, 26), " a foolish question of procedure,
which ever since Merry's time has been unsettled, and has occasioned
some heartburnings amongst the ladies, was decided * * * by the
President (Madison), departing from his customary indiflercnce to cere-
mony and etiquette, by taking Elizabeth (Mrs. Jackson) in to dinner,
while I escorted Mrs. Madison." (See also Mr. Jackson more fullv, su2)ra,
§107.)

In January, 1851, the Brazilian minister, at a non-official dinner i)arty
at Mr. Webster's house, was placed at table after Sir H. Bulwer, who,
however, had been of later arrival at Wasliinuton. The Brazilian min-
ister then addressed a letter to Mr. Webster, which contained the fol-
lowing passage :

" It is a princii)le established by the congress of Vienna, and adopted
by all the civilized nations, even those who were not represented there
(as the United States and Brazil), that the precedence between the dip-
lomatic agents of the same cajiacity must be established only by the
priority of the presentations of their credentials. Being yesterday
l)resent at your table, the minister of Mexico, I, and the minister of
Great Britain, your excellency gave the first places to the minister of
Great Britain and his lady, contrary to the rules above mentioned."

This was followed by something of an argument to sustain the posi-
tion taken.

Mr. Webster's letter was as follows :

" Sir: I have to acknowledge the receipt of your letter of the 25th
instant:

"It happens to be my fortune not to be entirely unacquainted with the
rules adopted by the treaty of Vienna, respecting tlie rank of diplomatic
agents, and although the Government of the United States was no party
to this treaty it has usually conformed to what was then established,
as being the regulation prevailing with other states. But the treaty
of Vienna, like other treaties, affects only official acts, and does not

S. Mis. 162— VOL. I- 47 '^'^'^ •

§ 101 a.] DIPLOMATIC AGENTS. [CHAP. IV.

assume to .i;ive the law to private intercourse ; aud although I exceed-
ingly regret that anything should have occurred to cause you concern,
yet i am sure you will see, upon consideration, that the private hospi-
tality of my own house may be regulated by my own discretion, without
being made the subject of dii)lomatici representation.
"Your obedient servant, etc.

The Brazilian minister in reply accepted this explanation, saying:
" I shall not discuss the distinction established by your excellency
between official acts and the private hospitality of the Secretary of State
to the diplomatic agents. I rather accept it as saving the principles
which seemed to me to be put in doubt on account of the incident then
mentioned."

Sir H. Bulwer, being appealed to, sustained the position that "a
private party" was to be distinguished from an official ceremony, to
which alone treaties could apply."

2 Curtis's Life of Webster, 563-565.

A minister of the United States is required, as far as possible, to cult-
ivate kindly relations with' other foreign ministers in the place, and to
enter into no controversy with them which could be avoided without
loss of personal self respect and propriety.

Mr. Seward, Sec. of State, to Mr. Webb, Feb. 6, 1863. MSS. lust., Brazil.

Mr. Schuyler (Am. Diplomacy, 155), says :

" Ceremonial and social duties take up a large part of a minister's time,
but those who have been noted as our best and ablest representatives
have always been most punctilious in their performance. No man has
ever served us better than Mr. John Quiucy Adams ; and yet we may
see from his 'Diary' that night after night he went into society, danced,
played cards, talked, and ingratiated himself with the people about him.
In spite of certain peculiarities derived from his Puritan ancestry,
jjeculiarities which were sometimes disagreeable when they showed
themselves, Mr. Adams was a man not only fond of society, but very
])opular in society, and, in a word, combined the most useful external
diplomatic qualities with those of intellect, study, and experience."

This, however, may, so far as Mr. Adams' diplomatic tone is con-
cerned, be open to question. In one of his confidential letters to Mr.
Monroe, when President, he speaks, as is seen, of the softening of his
style by ]Mr. Monroe before his instructions and notes went out. And
even when thus modified, the curt style of his diplomatic papers, ex-
traordinarily able as they were, was the subject of much criticism.

"A dii)lomatic agent should omit no occasion to maintain the most
friendly personal and social relations with the members of the Govern-
ment and of the diplomatic body at the place of his residence; but it is
not to be expected that he shall incur onerous charges for hospitality
and entertainment.

" While the social relations of a diplomatic agent to his own country-
men resident in or visiting the capital where he resides should be cor-
dial, they have no claim upon his hospitality requiring him to assume
expenses or burdens not in accord with his official duties or compensa-
tion."

Printed Pers. Inst., Dii>. Agents, 1885.

738

CHAP. IV.] COURT DRESS. [§ 1076.

(3) COUItT DUKSS.

§ 107b.

"From a suitable respect to what is uiulerstood to bo the nsajje at
the several courts of Europe, requiriug- tlie members of the dipUmiatic
body accredited to them to wear a court dress upon established occa-
sions, such as their presentation to the sovereijrns, or chief executive
officers of these Governments, respectively, &c., the President has
thought fit to adopt the following as the dress to be used by our min-
isters and other diplomatic agents ui)on all such occasions, which is
recommended as well by its comparative cheapness as its adaptation to
the simplicity of our institutions, viz :

"A black coat, with a gold star on each side of the collar, near its
termination ; the under clothes to be black, blue, or white, at the option
of the wearer, a three-cornered chapeau de bras, a black cockade and
eagle, and a steel-mounted sword, with a white scabbard. It is to be
understood, however, that the use of this particular dress is not pre-
scribed by the President. It is barely suggested, by his direction as an
appropriate and a convenient uniform dress for the use of our ministers,
and other diplomatic agents of the United States."

Mr. Van Bureu, Sec. of State, to Mr. Van Ness, Oct, 2, 1829. MSS. lust.. Min-
isters.

" The fashion of the coat recommended for the use of our ministers,
&c., upon occasions when full dresses are required by the usages-of the
courts to which they are accredited, is a single-breasted one, with a
standing collar, though they are left at perfect liberty, by the personal
and circular instructions which are addressed to all of them by this
Department, to consult and be governed bj' their own taste in the
adoption of any other that may be more agreeable to them. The fash-
ion recommended was supposed to be correspondent with the simplicity
of our iusticutions, and was believed tt) be sufficiently distinguished
for all the purposes intended, and it is for these reasons, and for the
sake of uniformity, recommended, but not prescrihed, for their adoi)tion.
We were unapprised till the receipt of your letter that our ministers at
London and Paris had adopted a different fashion."

Mr. Van. Bureu, Sec. of State, to Mr. Van Ness, Mar. 3, 18:U. MSS. lust., Min-
isters.

" I deem it proper, however distasteful the subject may be both to
you and myself, to relate to you a conversation which I had on Tues-
day last with Major General Sir Edward Cust, the master of ceremo-
nies at this court, concerning my court costume. I met him at tlu^ Trav-
eler's Olub, and, after an introduction, your circular on this subject be-
came the topic of conversation. He expressed much opposition to my
appearance at court in the simple dress of an American citizen. 1 said
that such was the wish of my own Government, and 1 intended to con-
form to it, unless the Queen herself would intimate her desire that I

739

§ HUh.] DIPLOMATIC AGENTS. [CHAP. IV.

should appear in coBtuiue. lu that event I should feel inclined to com-
ply with Her Majesty's wishes. He said that Her Majesty would not
object to receive me at court in any dress I chose to put on, but,
whilst he had no authority to speak for her, he yet did not doubt it
would be disagreeable to her if I did not conform to the established
usage. He said I could not, of course, expect to be invited to court
balls or court dinners, where all appear in costume; that Her Majesty
never invited the bishops to balls, not deeming it compatible with
their character; but she invited them to concerts, and on these occa-
sions, as a court dress was not required, I would also be invited. He
grew warm by talking, and said that whilst the Queen herself would
make no objections to my appearance at court in any dress I thought
l)roper, yet the j>eople of Eugland w^ould consider it presumption. I
became somewhat indignant, in my turn, and said that, whilst I enter-
tained the highest respect for Her Majesty, and desired^to treat her
w ith the deference which was eminently her due, yet it woukl not mak(^
the slightest difference to me individually whether I ever api)eared ?.t
court.

" He stated that in this country an invitation from the Queen was
considered a command.

" I paid no attention to this remark, but observed that the rules of
etiquette at the British court were more strict even than in Russia.
Senator Douglas, of the United States, had just returned from St. Pe-
tersburg-. When invited to visit the Czar in costume he informed Count
Nesselrode that he could not thus appear. The count asked him in
what dress he appeared before the President of the United States. Mr.
Douglas answered in the very dress he then wore. The count, after
consulting the Emperor, said that Avas sufficient, and in this plain dress
he visited the Emperor at the palace and on parade, and had most
agreeable conversations with him on both occasions.

" Sir Edward tiien expressed his gratification at having' thus met me
accidentally; said he had just come to town for that day, and should
leave the next morning, but would soon do himself the honor of calling'
upon me.

•'Although he disclaimed speaking by the authority of the Queen,
yet it apjjeared both to myself and Colonel Lawrence, who was present,
that they must have had some conversation in the court circle on the
subject. I entertain this belief the more firmly as Sir Edward has since
talked to a member of this legation in the same strain.

" So then, from present appearances, it is probable I shall be placed
socially in Coventry on this question of dress, because it is certain that
should Her Majesty not invite the American minister to her balls and
dinners, he will not be invited to the balls and dinners of her courtiers.
This will be to me, personally, a matter of not the least importance, but
it may deprive me of the opportunity of cultivating friendly and social
relations with the ministers and other courtiers which I might render
available for the purpose of obtaining important information and pro
moting the success of my mission.

" 1 am exceedingly anxious to appear ' at court in the simple dress of
an American citizen,' and this not only because it accords with my own
Taste, but because it is certain that, if the minister to the court of St.
James should ap])ear in uniform, your circular will become a dead letter
in regard to most, if not all, the other ministers and charges of our
country in Europe.

740

CHAP. TV.] COURT DRESS. [§ lOlh.

"The difficulty in the present case is greatly cnliaiiced by the fact that
the sovereign is a lady, and the devotion of Ihm- siibjeitts towaids her
I)artakes of a mingled feeling of loyalty and gallantry. Any eonduc^t,
therefore, on my part which would look like disreisi)ect to\var<ls her
])ersonally could not fail to give great ofleuse to tlie Dritish peoi>h'.
Should it prove to be impossible for me to conform to the suggesticiiis
of the circular, in regard to dress ' without detriment to the ])ublic
interest,' and ' without impairing my usefulness to my country,' then I
shall certainly and cheerfully be guided by its earnest recommendation
and 'adopt the nearest approach to it compatible with the dueiHnform-
ance of my public duties.' This course I pursued from choice whilst
minister in Kussia, and this course I should have pursued here without
instructions."

Mr. Buclianau, minister at Loudon, to Mr. Marcy, Sec. of State, Oct. 28, 18.'j3.
MSS. Dispatches, Gr. Brit. 2 Curtis' Buchanan, 107.

Mr. G. T. Curtis (2 Curtis' Buchanan, 110) states the subsequent pro-
ceeding as follows :

" As the court wgs not in London at the time when this letter was
written, the portentous question of Mr. Buchanan's costume was not
likely to be brought to an immediate solution. But early in February
(1854), Parliament was to be opened by the Queen in person. Mr. Bu-
chanan did not attend the ceremony, and thereupon* there was an out-
cry in the London press. The following extract from a dispatch to Mr.
Marcy gives a full account of the whole matter, up to the date:

"'You will perceive by the London journals, the Times, the Morning
Post, the News, the Morning Herald, the Spectator, the Examiner,
Lloyd's, &c., copies of which I send you, that my absence from the
House of Lords, at the opening of Parliament, has produced quite a
sensation. Indeed, I have found difficulty in preventing this incident
from becoming a subject of inquiry and remark in the House of Com-
mons. All this is peculiarly disagreeable to me, and has arisen entirely
from an indiscreet and rather offensive remark of the London Times, in
the account which that journal published of the proceedings at the
opening of Parliament. But for this, the whole matter would probably
have passed away quietly, as I had desired.

"'Some time after my interview with Sir Edward Cust, the master of
ceremonies, in October'last (whom I have never since seen), which 1 re-
ported to you in my dispatch No. 13, of the 28th of October, 1 determined,
after due reflection, neither to wear gold lace nor embroidery at court;
and I did not hesitate to express this determination. The spirit of your
circular, as well as my own sense of propriety, brought me to this cchi-
clusion. 1 did not deem it becoming in me, as the representative of a
Kei)ublic, to imitate a court costume, which may be altogether proper in
the representatives of royalty. A minister of the United States should,
in my opinion, wear something more in character with our democratic
institutions than a coat covered with embroidery and gold lace. Be-
sides, after all, this would prove to be but a feeble atteuq)t ' to ape foreign
fashions,' because, most fortunately, he could not wear the orders and
stars which ornament the coats of the diplomatists, nor could he, except
in rare instances, afford the diamon<ls, unless hired for the occasion.

" ' At the same time, entertainnig a most sincere respect for the exalted
character of the Queen, both as a sovereign and a lady, 1 expressed a
desire to appear at court in such a dress as 1 might suppose would be

741

§ 1076.] DIPLOMATIC AGENTS. [CHAP. IV.

most agreeable to herself, without departing from the spirit of the cir-
cular.

" 'It was then suggested to me, from a quarter which I do not feel at
liberty to mention, that I might assume the civil dress worn by General
Washington; but after examining Stuart's portrait, at the house of a
friend, 1 came to the conclusion that it would not be proper for me to
adopt this costume. I observed fashions had so changed since the days
of Washington, that if I wore to put on his dress, and appear in it before
the chief magistrate of my own country, at one of his receptions, I
should render myself a subject of ridicule for life. Besides, it would be
considered presumption in me to affect the syle of dress of the Father
of his Country.

"'It was in this unsettled state of the question, and before I had
adopted any style of dress, that Parliament was opened. If, however,
the case had been different, and I had anticipated a serious question,
prudential reasons would have prevented me from bringing it to issue
at the door of the House of Lords. A court held at the palace would,
for many reasons, be a much more appropriate place for such a purpose.

*' ' Under these circumstances I received, on the Sunday morning be-
fore the Tuesday on which Parliament met, a printed circular from Sir
Edward Oust, similar to that which I have no doubt was addressed to
all the other foreign ministers, inviting me to attend the opening of the
session. The following is extracted from this circular: ' No one can be
admitted into the diploftatic tribune or in the body of the House but
in full court dress.'

" 'Now, from all the attending circumstances, I do not feel disposed to
yield to the idea that any disrespect was intended by this circular either
to my country or myself. Since I came to London I have received such
attentions from high official personages as to render this quite improba-
ble. What may be the final result of the question I cannot clearly
foresee, but I do not anticipate any serious difficulties.'"

The dispatcli above quoted is dated Feb. 7, 1854, aud is coutaiued in MSS. Dis-
patches, Gr. Brit., Dept. of State.

" I Still anticipate difficulty about my costume, but should this occur
it will probably continue throughout my mission. It is, therefore, no
valid reason why you should postpone your visit. In that event you
must be pre])ared to share my fate. So far as regards the consequences
to myself I do not care a button for them, but it would mortify me very
much to see you treated differently from other ladies in your situation.

"If this costume affair should not prove an impediment, I feel that I
shall get along very smoothly here. The fashionable world, with the
exception of the high officials, are all out of London, and will remain
absent until the last of February or the first of JVIarch. I have recently
been a good deal in the society of those who are now here, and they all
seem disposed to treat me very kindly, especially the ladies. Their
hours annoy me very much. My invitations to dinner among them are
all for a quarter before eight, which means about half-past that liour.
There is no such thing as social visiting here of an evening. This is all
done between two and six in the afternoon, if such visits may be called
social. I asked Lady Palmerstcm what was meant by the word 'early,'
placed upon her card of invitation for an evening reception, and she
informed me about ten o'clock. The habits and customs and business
of the world here render these hours necessary. But how ridiculous it

742

ClIA^ IV.] COURt DRESS. [§ 107?^.

is in our country, where no such necessity exists to viohite the laws of
nature in regard to hours, merely to follow the fashion of this country."

Mr. Buchanan, minister at Loudon, to Miss Lane, Dec. 9, ISHIi. 2 Cnrtis'
Buchanan, lOt).

"I dined on Wednesday last with the Queen, at Buckingham Palace.
Both she and Prince Albert were remarkably civil, and I had quite a
conversation with each of them separately. But the question of cos-
tume still remains, and from this I anticipate nothing but trouble in
several directions. I was invited 'in frock-dress' to the dinner, and,
of course, I had no difiBculty. To-morrow will be the first lev6e of the
Queen, and my appearance there in a suit of plain clothes will, I have
no doubt, produce quite a sensation, and become a subject of gossip for
the whole court."

Mr. Buchanan to Miss Lane, Feb, 18, 1854, 2 Curtis' Buchanan, 113.

" In a dispatch to Mr. Marcy, written soon after his appearance at
the Queen's levee, Mr. Buchanan said: 'I have purposely avoided to
mention the names of those with whom I have had interviews on this
subject, lest it might expose them to censorious remarks hereafter, but
having mentioned that of Sir Edward Cust, the master of ceremonies,
in my dispatch No. 13, of the 28th October last, it is but an act of sim-
ple justice to state that at the court on Wednesday last his attentions
to me were of the kindest and most marked character, and have placed
me under many obligations. In the matter of the sword, I yielded
without reluctance to the earnest suggestion of a higli ofticial charac-
ter, who said that a sword at all the courts of the world was consid-
ered merely as the mark of a gentleman, and although he did not men-
tion the Queen's name, yet it was evident from the whole conversation
that this was desired as a token of respect for Her Majesty. He had
on a former occasion expressed the hope that I would wear something
indicating my official position, and not appear at courr, to employ his
own language, in the dress I wore upon the street. I told him promptly
that I should comply with his suggestion, and that in wearing a sword
at court as an evidence of the very high regard which 1 felt for Her
Majesty, I should do nothing inconsistent with my own character as an
American citizen or that of my country. I might have added that as
' the simj)le dress of an American citizen' is exactly' that of the upper
court servants, it was my purpose from the beginning to wear some-
thing which would distinguish me from them. At the first 1 had
thought of United States l)uttons, but a plain dress sword has a more
manly and less gaudy appearance. I hope I am now done with this
subject forever.' "

2 Curtis' Buchanan, 115,

The dispatch above quoted is in MSS. Dispatches, Gr, Brit., under date of Feb.
24, 1854.

"The dress question, after much difficulty, has been finally and satis-
factorily settled. I appeared at the levee on Wednes<lay last, in just
such a dress as I have worn at the President's one hundred times. A
black coat, white waistcoat and cravat, and black ]iantaloons, and dress
boots, with the addition of a very plain black-handled and black-hilted
dress sword. This to gratify those who have yielded so much, and to
distinguish me from tlie upper court servants. I knew that I would
be received in any dress I might wear, but could not have anticipated

743

§ 1076.] DIPLOMATIC AGENTS. [CHAP. IV.

that I should be received in so kind and distinguished a manner.
Having yielded, they did not do things by halves. As I approached
the Queen, an arch but benevolent smile lit up her countenance; as
much as to say, you are the first man who ever appeared before me at
court in such a dress. I confess that I never felt more proud of being
an American than when I stood in that brilliant circle 'in the simple
dress of an American citizen.' I have no doubt the circular is popular
with a majority of the people of England, Indeed, many of the most
distinguished members of Parliament have never been at court, because
they would not wear the prescribed costume."

Mr. Buchanan to Miss Lane, Feb. 24, 1854 ; 2 Curtis' Buchanan, 114.

The doffing his uniform in court receptions by Mr. Sanford, secretary
of the legation at Paris, in 1853, was approved by the Secretary of
State. Mr. Mason, the minister at Paris, continued to wear "a court"
dress, and this was left to his discretion by the Secretary.

Mr. Marcy, Sec. of State, to Mr. Sanford, Feb. 18, 1854 ; to Mr. Mason, Feb.
20, 1854. MSS. Inst., France.

"The 'contretemps' experienced by me at the levee, yesterday, is in-
accurately stated in the Times of to-day. * * • I will briefly' tell you
the facts without a comment. I took with me to the palace three Ameri-
can gentlemen. One of these is an eminent professor of civil and mili-
tary engineering in our Military Academy at West Point, and has the
assimilated rank of major in the Army. He wore his official costume, a
blue dress coat, with buttons of the Engineer Corps, blue pantaloons,
white vest, black stock, and the common hat. It was objected, in a man-
ner exceedingly kind and courteous, that he wore a black cravat, had
no chapeau, and no sword, and could not thus pass the Queen. 1 tried
once, twice, or thrice, to surmount the difficulty by adverting to the
official character of his dress, but the rule was express, and there was
no discretion to relax it. Pained at the position in which my estima-
ble countryman was placed, among strangers, and in a place to which
he was entirely unaccustomed, I unhesitatingly offered to go home with
him, and in this suggestion his comj>anions joined. We retired. It was
impossible to do less, and we did no more."

Mr. Dallas to M'. M., London, June 26, 1856 ; 1 Dallas's Letters, 53.

On this scene some characteristic comments are given by Lord Malmes-
bury, British secretary for foreign affairs in Lord Derby's administra-
tion, in his Memoirs, under date of June 26, June 28, 1856.

2 Memoirs of an ex-Minister, 48.

Congress having by resolution taken from the Secretary of State the
discretion reposed in him as to prescribing the costumes of those en-
gaged in the service of the Dei^artment, the discretion " to select his own
costume" is left to the gentlemen so employed.

Mr. Fish, Sec. of State, to Mr. Jay, July 13, 1869. MSS. Inst. Austria. See
Senate Ex. Doc. 31, 36th Cong., Ist sess.

" The diplomatic officials of nearly all countries wear a uniform gen-
erally consisting of a coat more or less richly embroidered with gold, a
cocked hat, and sword. By a resolution of Congress passed in 1867 the
diplomatic officials of the United States are forbidden to wear 'anyuni-

744

CHAP. iV.] COURT DRESS. [§ l07/>.

loiin or official costume not previously authorized by ConffresK ; ' and
altlioujili the wording of the resolution is anil)ij;uous, an<i iiii^ht be
held to prevent a minister's wgai inj,^ any clotlies at all, he a])i)ears in
ordinal y eveuinji' dress, unless, having' been a military or naval officer,
he wear the nnitorm i)iescribed for his rank. The history of this res-
olution is somev, hat curious. At the beginning of our Government the
costume worn by men in society admitted of much greater variety than
at present in color, cut and ornament, and therefore there was no special
distinction, excei)t in point of richness, between dress worn at court and
on ordinary occasions. AVhen our mission went to Ghent, in 1814, for
the conclusion of the treaty with Great Britain, a change had come
over Eurojjean usages; and it was found advisable to adopt some uni-
Corm to mark the rank of the members of the mission. They agreed to
wear a blue coat, slightly embroidered with gold, with white breeches,
white silk stockings, and gold knee buckles and shoe buckles, a sword,
and a sjiiall cocked hat with a black cockade. For grand occasions,
this uniform was made somewhat richer. lu 1823, Mr. John Quincy
Adams, then Secretary of State, wrote to our ministers abroa'd recom-
mending the use of the uniform worn by the mission of Ghent, send-
ing a fornml description of it as well as an engraved plate. During the
administration of General Jackson in 1829, this uniform was changed.
It was made simi)ler and cheaper, consisting of a black coat with a gold
star on each side of the collar, black or white knee breeches, a three-
cornered chapeau bras, with a black cockade and a gold eagle, and a steel-
mounted sword with a white scabbard. This dress was not prescribed
by the President, but was suggested as an appropriate and convenient
uniform dress for the diplomatic agents of the United States. It is said
that not all ministers coufonued to this recommendation, and that some
of theni appeared in more brilliant uniforms suited to their respective
tastes. 9 Some suggestions were made on this subject to the Department
of State ; and Mr. Marcy, on June 1, 1853, issued a circular withdraw-
ing all previous instructions, and recommending the appearance at court
of our ministers in the simple dress of an American citizen ' whenever
it could be done without detriment to the public interest.' Mr. Marcy
cited the example of Dr. Franklin, who had appeared in the French
court in very simple dress;* but it is now well known that this was
not owing to the love of simplicity on the part of Franklin, but merely
that on a certain occasion his presence was so much desired at court,
when he had no clothes in which he considered it tit to appear, that
he was requested to come in whatever he happened to be wearing at
the moment. In compliance with these instructions, several of our
ministers attempted to go to court in plain evening dress. To Mr. Bel
mont, at The Hague, no objection was made, although it was evidently
preferred that he should comply with the usages of the place. Mv.
Mason presented his credentials to the Emperor Nai)oleon in civil dress,
but subsequently adopted a simple uniform, which he always wore on
ceremonial occasions. At Stockholm, while the King expressed his
perfect willingness personally, to receive Mr. Schroeder in plain dress,
he said, 'the etiquette of my house is subject to regulations which can-
not be waived for one in preterence to others. In audiences of business
I will receive him in any dress his Gov^ernment may i)rescribe ; but in
the society of my family and on occasions of court no one can be re-
ceived but in court dress, in conformity with the established customs.'

*Thi8, however was Quaker full dress, beiug court dress in the times of Charles II.

745

^ 1075.] DIPLOMATIC AGfeNTS. [cflAP. IV.

Mr. Vroom, at Berlin, was told that ' His Majesty would not consider
an appearance before bini without costume as respectful.' Mr. Buch-
anan was excluded from the diplomatic tribune at the opening of Par-
liament because he refused to wear court dress ; and when subsequently
he insisted on wearing- civilian dress, Sir Edward Cust told him ' that
he hoped he would not ai)pear at court in the dress he wore upon the
street, but would wear something indicating his oflBcial position.' He
therefore api)eared at court in ordinary evening dress, with a plain
black sword and a cocked hat. Mr. H. S. Snnford, who had been act-
ing as chargp d'affaires at Paris until the arrival of Mr. Mason, carried
out Mr. Marcy's instructions literally, and adopted an evening dress.
When Mr. Mason, as has just been mentioned, returned to the use of
unifVu-m, Mr. Sanford complained of this to the Department of State,
and offered his resignation. His conduct in the matter was approved
by jNIr. Marcy, but his resignation was accepted. Six years afterwards
in January, 1860, when Mr. Faulkner was about proceeding to Paris,
Mr. Sanford wrote to General Cass referring to the previous correspond-
ence, ridiculing Mr. Mason's course, and asking that Mr. Faulkner
should be instructed to wear civilian dress. Mr. Sanford in this let-
ter confounded two things, court dress and diplomatic uniform ; for
even in countries where court dress is required, there is a diplomatic
uniform different from that worn by other oflicials ; and the example of
the Turkish embassador, brought up by him, was by no means to the
point. Turkish diplomats always wear a diplomatic uniform, and by
no means the ordinary Turkish dress, which can be worn in the presence
of the Sultan. In compliance with a resolution of the Senate, the papers
on this subject were jiriuted shortly afterward. (Senate Ex. Doc. 31,
36th Cong., 1st sess., Apr. 1, 1860.) Xo further action was taken until
March, 1867, when, by the joint efforts of Senator Sumner and General
Banks, the resolution in question was forced through Congress. * * *
The resolution, in point of fact, does not accomplish what was intended
by it — to prevent the wearing of court dress in London, almost the only
place where it is worn, for court dress is neither a uniform nor an
official costume."

Schuyler's Am. Diplom., 139^.

*' Officers of the several grades in the diplomatic service of the United
States are hereby instructed to conform to the requirements of law pro-
hibiting them from wearing any uniform or official costume not pre-
viously authorized by Congress.

" The statute authorizes all officers who have served during the rebell-
ion as volunteers in the armies of the United States, and who have
been, or may hereafter be, honorably mustered out of the volunteer
service, to bear the official title, and, upon occasions of ceremony, to
wear the unif(^rm of the highest grade they have held by li^evet or
other commissions in the volunteer service."

Printed Pers. Inst., Dip. Agents, 1885.

"I observe that, in your dispatch, you refer to the exceptional posi-
tion of the minister and secretary of legation of the United States,
whose plain evening costume, amidst a brilliant display of uniforms of
every class, ' succeeded,' as you say, ' in securing the embarrassment
of digito monstrari conspicuousness.' * * *
746

CHAP. IV.] EXPENSES. [§ 107c.

" The absence of civil distinctions at home forbids their adoption
abroad ; and even were the diplomatic organization a distinct branch
of service, with appointment foi- life or good behavior and i)ron)otion
by seniority, the fitness of adoi)ting for its members a distinctive uni-
form is questionable. The analogy of the military and naval services
is not wholly in point, for with them uniform is necessary to a proper
disciplinary organization, and visible distinctions of oUicial rank arc
essential.

"Uniforms are of two classes — those denoting relativ'e rank and au-
thority in an organized disciplined service, and those wliich, like tlie
robes of knightly orders and the like, mark class or titular privilege.
Neither of these is applicable, in theory, to those citizens who may be
chosen to represent abroad the sovereignty of the Kepublic. ♦ * *
The dignity of the representative oflice should be deemed jper se above
all distinctions in the way of personal apparel.

" I have been told of a pertinent illustration of this in Spain, some
years ago, on the occasion of the first official reception of the late King.
All the dignitaries and officers of the realm, to the number of some
three thousand, were in attendance, and foreign representatives like-
wise assisted. Uniform being de rifjtur, every one wore that of the
highest official or titular rank to which he was entitled. In the whole
assemblage four men appeared in evening dress — the president of the
Senate, the president of the Chamber of Deputies, and the minister
and secretary of legation of the United States. They were indeed con-
spicuous, but necessarily so. The Spanish legislative body wears as
such no uniform. Either of the presiding officers might have worn, as
a private individual, any one of the uniforms belonging to the rank held
in other ofiicial stations, as ambassador, privy councillor, or grand
cross; but such uniform would have been beneath the dignity of the
representative function with which they stood invested.

" Upon reflection, and in the light of this example, it may be ques-
tioned whether the representative quality of an envoy, the highest
known in the coequal intercourse of nations, is not rather diminished
than enhanced by wearing, as is done in some cases under statutory
authority, the uniform of past or iiresent military rank."

Mr, Bayard, Sec. of State, to Mr. Curry, Jau. 15, 1886. MSS. lust., Spain.

(4) Expenses.

§ 107c.

"Congress has mortified me a little by cutting off one-fifth of my
salary, at a time when the increase of my family ratlier recpiired an
increase of it. The consequence of it must be that I must entertain
less company, whereas the interest of the United States requires that
I should entertain more. There is not a man in the world less inclined
to pomp or to entertainments than myself, and to me personally it is a

747

§ 107c.] DIPLOMATIC AGENTS. [CIIAP. IV,

relief to be excused from both. But If I know anythiug in tlie world,
I know that this measure is not for the public good, nor a measure of
economy. If there is anybody iu America who understands economy
better than the Dutch nation, I know nothing of either, and their policy
is always, upon occasions of consequence, to appoint ambassadors,
and even ambassadors extraordinary, as they did at the late ])eace,
my friend Brautzen, with seventy-live thousand guilders to furnish his
house, and his table, and seventy-five thousand guilders a year to spend
in it. In short, that nation which places its own ambassadors at the tail
of the whole creation, cannot itself expect to be soou at the head. If this
policy does not expose our country to a million insults, and at last com-
pel her by war and bloodshed to consult better her own honor, I am
much mistaken. How are we to do? We are to negotiate with all the
ambassadors here, that is, we are to be invited to dine to-morrow at a
table with three thousaud pounds sterling upon it, and next day we are
to return this civility by inviting the same company to dine with us upon
earthenware ! I am well aware of the motives to this conduct, which
are virtuous and laudable, but we shall find that we cannot keep up
our reputation in Europe by such means, where there is no idea of
the motives and principles of it, and where extreme parsimony is not
economy. We have never been allowed anything to furnish our houses
or tables, and my double capacities have obliged me to furnish myself,
both in Holland and France, which, besides exposing me to be unmerci-
fully robbed and plundered in my absence, has pinched and straitened
me confoundedly. However, I am the best man in the world to bear it,
and so be it."

Mr. J. Adauis to Mr. Warreu, Aug. 27, 1784. See 3 Johu Adams' Works, 139,
161 ; 9 John Adams' Works, 525, 527.

The report of Mr. Jefferson, as Sec. of State, on Nov. 3, 1792, in respect to ex-
penses of foreign intercourse, is given in 1 Am. State Pap., (For. Eel.,) 137.

As to the inadequacy of the salary allovred iriinisters in Paris for their support,
see Mr. Gallatin to Mr. Madison, Nov. 23, 1815.; 1 Gallatin's Writings, 659.

" Is it necessary that the United States should be represented with
foreign powers? This has long ceased to be a question. Shall they
maintain a proper station there — not assuming, but dignified, such as
the general expectation and common opinion of mankind have given
them ? That has never been a question. The character of the country,
if not its rank, is in some degree affected by that which is maintained
by its ministers abroad. Their utility in all the great objects of their
mission is essentially dependent on it. A minister can be useful only
,by filling his place with credit in the diplomatic corps, and in the cor-
responding circle of society in the country in which he resides, which is
the best in every country. By taking the proper ground, if he pos-
sesses the necessary qualifications and is furnished with adequate
means, he will become acquainted with all that passes, and from the
highest and most authentic sources. Inspiring confidence by reposing
it in those who deserve it, and by an honorable deportment in other
respects, he will have much influence, especially in what relates to his
own country. Deprive him of the necessary means to sustaiu this
ground, separate him from the circle to which he belongs, and he is

748

CHAP. IV.J EXPriNSES. [§ lOic.

red need to a cipher. He may collect iutelli^'ence from adventurers and
si)ies, but it will be of comparatively little value, and in other respects

lie had as well not be ther<i."

Mr. Monroe, Sec. of Slate, to Mr. Lowndes, chairiiiau of Corniaittee on Ways
and Means, Apr. 5, 1816. Quoted in Schuyler's American Diplomacy, 151.

" The late royal marriages, and the other that is h\ i)rospect, make
distressing;- drafts ujionthe pockets of all who are obliged to go through
the ceremonies to which they give rise. To-morrow the Queen holds a
drawing room, and we have a summons from the chamberlain to attend
a party at Carleton House on Monday. 1 Avould as soon have been
served with a summons in debt for fifty pounds sterling. Ladies who
have been at court and know what must be the expense o£ a wardrobe
will be the persons to understand this remark."

Mr. Kusli, minister at London, to Mr. Monroe, President, unofficial, Apr. 22,
1818. Monioe Papers, Dept. of State.

The opinion of Mr. Wirt, Attorney-General, Oct. 1, 1821, as to allowance of sala-
ries and outfits to ministers, is given in Senate Doc. 411, special sess., 1821.
5 Am. St. Pap. (For. Eel.), 755. (This opinion is not given in the series of
opinions of Attorneys-General. )

Mr. Monroe, when succeeding Mr. Morris as minister at Paris, was,
in consequence of the hospitality required of him, " encouraged not only
to spend all his salary in his oflQce, but much more, and had he been
in a condition to enlarge his expenditures still beyond, his country
would have i)rofited by the sacrifice."

Mr. Vaughan, Memorandum of 1826 in Monroe MSS.

As a preliminary principle, it seems clear that the representatives
of a great nation like the American ought to appear in some measure
as the representatives of other great nations appear ; otherwise the loss
of influence produced by refusing to submit to small expenses may have
to be made by other expenses. * * * Whoever is fit to represent a
nation at a great court must be trusted to act on these extraordinary
occasions at his own discretion, subject to the approbation of his supe-
riors at home.

Ibid.

"The general superintendence of our foreign relations, which, under
your direction, is vested in the head of the State Department, would
seem to require that he should, at proper periods, briug to your view
the state of our diplomatic intercourse with other nations, and suggest
the measures which occur to him for making its agency more eftectual.

"That agency employed (necessarily, perhaps) by European powers
in fcwming or defeating political combinations, and in a vigilant obser-
vation of each other's plans and oi)erations, with us has diflereut objects.
Kemote from these scenes of political jealousy and strife, strong in our
own resources, and giving no umbrage by intermeddling in the affairs
of other nations, we want no alliances for our defense, nor do we fear
that any will be formed which it is our interest to defeat, and thus have
no motive for entering the vortex of European diplomacy. Ours has a

749

§ 1076-.] DII'LOMATIC AGENTS. [CIIAP. IV.

distiuct cliiiiacter. Its only objects iiic the inescivatioii oi" ])eace, tbe
extension to other i)o\vei's of a mutually beneficial commerce, the pro-
motion of a friendly interchange of good oftices, and the establishment,
by treaty, of i)rincii)les which mayrcDder wars less frequent aud disarm
them wheu they must occur of many unuecessarj'^ horrors, iuconsisteut
with the mauners iiud feelings of the age in which we live.

"Conflued, however, to these objects, this branch of the Executive
functions of our Gx)vernment would seem to be sufficiently important 5
but all who have observed its operations must be convinced that its
utility is not sufficiently appreciated and that it is even regarded with
unreasonable jealousy. Ministers are considered as favorites, selected
to enjoy the pleasures of foreign travel at the expense of the people,
their places as sinecures, and their residence abroad as a continued
scene of luxurious enjoyment.

"Their exertions, their embarrassments, their laborious intercourse
witli the Governments to which they are sent, their anxious care to
avoid anything that might, on the one hand, give just cause of offense,
or to neglect or abandon the rights of their country or its citizens, on
the other, are all unknown at home. Even the merit of their corre-
spondence, from which, at least, the reward of honor might be derived,
is hid in the archives of the Department and rarely sees the light, and
except in the instances of a successful negotiation for claims, a minister
returns to his country, after years of the most laborious exertion of the
highest talent, with an injured, if not a broken, fortune, his countrymen
ignorant of his exertions, and undervaluing* them perhaps if known.
On the whole, there is scarcely an office of which the duties, properly
performed, are more arduous, more respouvsible, aud less fairly appre-
ciated than that of a minister to a country with which we have imi)ortant
commercial relations. Yet there is some reason to believe that appoint-
ments to themare eagerly sought from the same false ideas of the nature
of the employment. To these mistaken ideas, more or less prevalent,
maybe traced many of the evils which hare operated, and still operate,
injuriously upon the interests and reputation of the country. * * *

"A minister to a foreign power, whatever may be his grade, is the
accredited agent of his country. If he is forced, from the inadequate
compensation that is allowed him, to live in a manner that will not
allow him to associate on an equal footing with others of the same grade,
he is deprived of many of the advantages which social intercourse
affords to perform essential duties, and to gain important informj^ion
which can only be obtained by mixing in the first circles. It is not
expected, nor should I recommend, that his allowance should be such
as to enable him to vie in expense of living with the ministers of mon-
archs who allow extravagant salaries, and who themselves have large
fortunes which they expend in addition to their official allowance, but
he ought to have the means of returning civilities which he receives — of
• 750

CHAP. IV.] EXPENSES. [§ 107<?.

giving to bis countrymcu a pliiin hospitable r(M;i'i)ti()ii w Imii tlicv visit
the place of his residence — and, above all, ho (in^ht to lunc an allow-
ance that will enable him to meet the expenses absolutely iiecessaiy lor
the due performance of his oliicial duties without trenching on his sal-
ary so much as to render it entirely incompetent to his necessary and
decent support. * * * .

"The usual answer to these representations is that, notwithstanding
all these inconveniences, candidates are alwa.ys found, eagerly seeking
these appointments. But it must be remarked that these candidates
are of two kinds: First, men of wealth who are willing to purchase
the honor of the station at the expense of their private fortunes. But
although these Are not always the fittest in other respects for the place,
they are sometimes selected, and their appointment is popular, because
there seems to be no objection to a minister's keeping uj) a decent ap-
pearance, i)rovided he does il at his own expense. Secondly, there are
others who seek these appointments, because they make false calcula-
tions on the consequences. They resolve to be very economical, to live
within their income, and to be drawn into no extravagance, but on ar-
riving at their place of destination they find that expenses which might
with prudence have been avoided here are inevitable abroad. Civili-
ties are received which must be returned ; strangers are introduced
who must be entertained ; their countrymen call on them and must be
treated hospitably ; in short, they find themselves obliged to live as
others do, or to forego all the advantages which social intercourse
would give them in the business of their mission. The consequence is
that all our ministers return with impaired fortunes, however firm their
resolutions have been to avoid unnecessary expense. It is possible
there may be exceptions, but they are certainly very rare. If, then,
none of the ministers we have sent abroad, however prudent, have been
able to live on the salaries that are allowed them, the conclusion is
inevitable that the salaries ought to be increased or the ministers
should be recalled. If the mission is useful it ought to be supported
at the public, not at private, expense, and the representatives of a great
nation ought not to be obliged to employ, in devising parsimonious ex-
pedients for their support, that time and those talents which ought to
be occupied in the service of their country."

Keport of Mr. Liviogston, Sec. of State, to President Jackson, Jan. 31, 1K53.
H. R. Ex. Doc. 94, 22d Cong., 2cl boss.

" I* have, since my arrival, been living inconveniently in an hotel,
taking time to get* my establishment on a footing of economy united
with the necessary respectability of my station ; and I liiid that tlie lour
articles of house-rent, coach-hire, servants, and fuel will take about
seven thousand dolTars, leaving for all my other exi)enses, in this
expensive capital, two thousand dollars. I make this statement, not
because I have any interest in it, for I am not rich enough to remain
here until some remedy be applied to the evil, but for the honor of the

751

§ 108.] DIPLOMATIC AGENTS. [CHAP. IV.

country, and to enable it to avail itself of the services of other than men of
large fortunes^

Mr. Livingston, minister at Paris, to the Sec. of State, , 1834. Hunt's

Life of Livingston, 414. (This does not apiiear in the Department records.)

" As to the expense incurred for court mourning, a review of the course
purslied by the Department of State in 'regard to contingent allow-
ances shows that none was ever made by it, under that head, with the
single exception of the case of Mr. McLane, to which you refer, and
which you are already informed is regarded by the President as having
been made without sufficient consideration. The President, before
whom your dispatch has been laid, desires me to state to you that he
sees no cause for changing the decision which he had, with delibera-
tion, adopted on the subject."

Mr. Forsyth, Sec. of State, to Mr. Stevenson, Apr. 1. 1840. MSS. Inst., Gr. Brit.
Mr. Webster's report of July 2, 1852, as to the expediency of adopting a grad-
uated scale of diplomatic salaries, is given in Senate Ex. Doc. No. 93, 32d
Cong., 1st sess.

" Now, ill order to preserve good relations with a country, it is not
sufficient simply to have a person living m town as cheaply as he can
anbrd to exist, because the social position of your representative is a
very important element in his power to be useful. In regard to his
intercourse with the ministers of the country, great facilities and great
means of good understanding are afforded by easy social intercourse,
which can only possibly be obtained by his being able to receive them,
as well as also being received by them. Again, it is of great impor-
tance that your embassador should be in habits of social intercourse with
public men not in office; that be shoidd Lave the means of receiving
them, becoming acquainted with their views, and explaining to them
the views and i^olicy of his own country. Therefore, I think it is of
great importance to this country that your representative should be in
such an easy position with regard to money affairs as may enable him
to receive hospitably persons of all kinds, and I may say also of
different nations."

Lord Palmerston, testimony before committee of House of Commons, quoted
Senate Ex. Doc. No. 93, 32d Cong. , 1st sess. Schuyler's Am. Diiilom., 150.

XXXII. CONTINGENT FUND AND SECRET SERVICE.

§108.

"The allowance to a minister resident of the United States is 4,500
dollars a year /or all his personal services and other expenses^ a year's sal-
ary for his outfit, and a quarter's salary for his return. It is understood
that the perso7ial services and other expenses here meant do not extend to
the cost of gazettes and pamphlets transmitted to the Secretary of
State's office, to translating or printing necessary papers, postage, cour-
iers, and necessary aids to poor American sailors. These additional
charges, therefore, may be inserted in your accounts; but no other of
752

CHAP. IV.] CONTINGENT FUND AND SECRET SERVICE. [§ 108.

any description, unless where they are expressly directed to be incurred.
The salarj^ of j'our new grade being the same as of your former one, and
your services continued, though the scene of them is changed, there
will be no intermission of salary, the new one beginning where the
former ends, and ending when you shall receive notice of your permis-
sion to return. For the same reason there can be but one allowance of
outfit and return, the former to take place now, the hitter only on your
final return."

Mr. Jefferson, Sec. of State, to Mr. Short, Jan. 23, 1792. MSS. Inst. Ministers.

The fund for foreign intercourse is an annual fund placed at the dis-
jjosal of the President to defray expenses; and he is limited in respect
to an outfit only by the provision that it shall ncjt exceed a year's salary-.
When the outfit has been paid, it is beyond the recall of the President
or Congress.

1 Op., 545, Wirt, 1822.

The President, having the foreign-intercourse fund under his direc-
tion, may advance to a minister going from the United States to Chili
such part of his salary as he shall deem necessary to the proper fulfill-
ment of public engagements.

1 Op., 620, Wirt, 1823.

The President, being intrusted with the subject of the diplomatic
intercourse of the United States with foreign nations, may, in his dis-
cretion, advance money to a minister going abroad. (Act 1823, 3 Stat.,
723; Eev. Stat., §§ 3648, 1740, 1743.)

2 Op., 204, Berrien, 1829.

The expense of recasting cannon, &c., to be presented to the Imaura
of Muscat, in return for presents received, may be defrayed from the
a])propriation for the contingent expenses of foreign intercourse.
4 Op., 358, Mason, 1845.

This appropriation is placed at the disposal of the Executive, who is
charged with the care and management of all our foreign relations.
And, as it has been the practice of our Government, from its earliest
history, to interchange presents with the semi-barbarous nations of Asia
and Africa, and as the Executive is vested with a discretion respecting
the manner in which friendly relations with them can be best main-
tained, it follows that, if he shall be of opinion that the public interes.ts
will be promoted by tendering a present in return for one received, he
may legally do so, and cause the expense thereof to be defrayed from
the funds thus placed at his disposal.

4 Op., 358, Mason, 1845.

A public minister who was at home at the time of his recall, and who
was paid his salary down to the date of his recall, is not entitled, in

S. Mis 102— VOL. I 48 ^^-^

§ 108.] DIPLOMATIC AGENTS. [CHAP. IV.

addition, to compeusatiou for such further time as would be necessarily
spent in coming home from the seat of his mission.

9 Op., 261, Black, 1858.

" The usual annual appropriation ' for the contingent expenses of in-
tercourse between the United States and foreign nations' has been dis-
bursed since the date of the act of May 1, 1810, in pursuance of its pro-
visions. By the third section of that act it is provided : ' That when any
sum or sumsof money shall be drawn from the Treasury, un<ler any law
making appropriation for the contingent expenses of intercourse be-
tween the United States and foreign nations, the President shall be, and
he is hereby, authorized to cause the same to be duly settled, annually,
with the accounting officers of the Treasury, in the manner following,
that is to say : By causing the same to be accounted for, specially, in
all instances wherein the expenditure thereof may., in his judgment, be
made public, and by making a certificate of the amount of such expen-
ditures as he may think it advisable not to specify; and every such
certificate shall be deemed a sufficient voucher for the sum or sums
therein expressed to have been expended.'

" Two distinct classes of expenditure are authorized by this law ; the
one of a public, and the other of a private and confidential character.
The President in office at the time of the expenditure is made by the
law the sole judge whether it shall be public or private. Such sums
are to be 'accounted for specially in all instances wherein the expendi-
ture thereof may, in his judgment, be ^made public' All expenditures
'accounted for specially' are settled at the Treasury, upon vouchers,
and not on 'President's certificates,' and, like all other public accounts,
are subject to be called for by Congress, and are open to public exami-
nation. Had information as respects this class of expenditures been
called for by the resolution of the House, it would have been promptly
communicated.

"Congress, foreseeing that it might become necessary and proper to
apply portions of this fund for objects, the original accounts and vouch-
ers for which could not be ' made public ' without injury to the public
interests, authorized the President, instead of such accounts and vouch-
ers, to make a certificate of the amount 'of such expenditures as he may
think it advisable not to specify,' and have provided that ' every such
certificate shall be deemed a sufficient voucher for the sum or sums
therein expressed to have been expended.'

" The law making these provisions is in full force. It is binding upon
all the Departments of the Government, and especially upon the Exec-
tive, whose duty it is ' to take care that the laws be faithfully executed.'
In the exercise of the discretion lodged by it in the Executive several
of my predecessors have made ' certificates ' of the amount ' of such
expenditures as they have thought it advisable not to specify,' and upon

754

CHAP. IV.] SELF-CONSTITUTED MISSIONS ILLEGAL. [§ 109.

these certificates, as the only vouchej s, settleineuts have beeu made at
the Treasury."

President Polk's Special Message, Apr. 10, 184tJ.

"Actuated undoubtedly by considerations of this kind, Congress pro-
vided such a fund> coeval with the organization of the Government ;
and subsequently enacted the law of 1810 as the ]>('rinanent law of the
laud. While this law exists in full force, I feel bound by a high sense
of public i^olicy and duty to observe its provisions, and the uniform
practice of my predecessors under it.
Ibid.

XXXIII. SELF-CONSTITUTED MISSIONS ILLEGAL.

§109.

" A self-cdustitutod mission to the French Republic, in 1798, on the
part of Dr. Logan, of Philadelphia, led to the ])assage of the act of
Congress of the 30th of January, 1799, subjecting to fine and imi)rison-
luent any citizen o.f the United States holding eorresi)()ndence with a
foreign Grovernment or its agents, with intent to influence the measures
of such Government in relation to disputes or controversies with the
United States. Statutes at Large, vol. i, p. 613; Hildreth's History of
the United States, 2d series, vol. ii, 280."

Lawrence's Wheaton, ed. 1863, p. 1003. That this statute is still in force, see
Kev. Stat.,§ 5,335; and see 3 Randall's Life of Jelf.,467; IWhart. Crim.
Law, § 274. As to Dr. Logan personally, see Whart. St. Trials, 20, 21.

" The object of Logan in his unauthorized embassy seems to have
been to do or obtain something which might give opportunity for the
' true American character to blaze forth in the approaching elections.'
Is this constitutional for a party of opposition to send embassies to f(>r-
eign nations to obtain their interference in elections i "

President Adams to Mr. Pickering, Sec. of State, Nov. 2, 1798. 8 J<iliii Adams'
Works, 615.

"Mr. Logan, of Philadelphia, a gentleman of fortune and education,
and certainly not destitute of abilities, who had tor several years been
a member of the legislature of Pennsylvania, an<l has since been a Sena-
tor of the United States, though 1 knew he had been oneof the old con-
stitutional party in that State, and a zealous (liseii>le of that demo
cratical school which lias j)ropagated many errors in America, and,
perha])s, many tragical catastrophes in Europe, went to France either
with the pretext or real design of imi)roving his knowledge in agricult-
ure, and seeing the practice of it in that country. 1 had no reason to
believe him a corrupt character or deficient in memory or veracity.
After his return he called upon me, and in a polite and respectful man-
ner informed me that he had been honored with conversations with Tal-
leyrand, who had been well acquainted with me, and repeatedly enter-
tained at my house, and now visited me at his reipiest to express to me
the desire of the directory, as well as his own, to accommodate all dis-
putes with America, and to forget all that was past ; to request me to
send a minister from America, or. to give credentials to one already iu

755

§ 109.] DIPLOMATIC AGENTS. [CHAP. IV.

Europe to treat, and to assure me that my minister should be received
and all disputes accommodated, in a manner that would be satisfactory
to me and my country. I knew the magical words, Democrat and
Jacobin, were enough to destroy the credibility of any witness with
some people. But not so with me. 1 saw marks of candor and sin-
cerity in this relation that convinced me of its truth."

Mr. J. Adams, ex-President, 9 John Adams' Works, 244. Patriot Letters, No. 2.

As to Dr. Logau, see further 8 Johu Adams' Worlis, 615 ; 9 ibid, 243, 244, 265,
293, 307.

In a letter of Talleyrand of August 28, 1798, to Mr. Pichon, trans-
mitted by Mr. Vans INIurray to the Department, it is stated that Dr.
Logan, when in Paris, was not received as a secret agent by the French
Government, and that he had no political relations with that Govern-
ment.

2 Am. St. Pap. (For. Eel.), 242.

The "Logan" statute, as it was called, remains, with some slight
modifications, still in force. As it now appears in the Eevised Statutes,
it is as follows :

" Sec. 5335. Every citizen of the United States, whether actually resi-
dent or abiding within the same, or in any foreign country, who, with-
out the permission or authority of the Government, directly or indi-
rectly, commences or carries on any verbal or written correspondence
or intercourse with any foreign Government, or any officer or agent
thereof, with an intent to influence the measures or conduct of any
foreign Government, or of any officer or agent thereof, in relation to
any disputes or controversies with the United States, or to defeat the
measures of the Government of the United States ; and every person,
being a citizen of, or resident within, the United States, and not duly
authorized, who counsels, advises, or assists in any such correspondence,
with such intent, shall be punished by a tine of not more than five
thousand dollars, and by imprisonment during a term not less than six
months, nor more than three years ; but nothing in this section shall be
construed to abridge the right of a citizen to ai)ply, himself or his agent,
to any foreign Government or the agents thereof for redress of any in-
jury which he may have sustained from such Government, or any of its
agents or subjects."

The last clause of this statute was appealed to by Mr. Seward in 1861,
to stop certain action of Mr. Bunch, British consul in Charleston, South
Carolina, in urging on the British Government the recognition of Cou
federate independence.

Mr. Adams to Earl Russell, Nov. 21, 1801. See Bernard's British Neutrality, 185
As to Mr. Bunch, see infra, ^^ 116, 110.

" It was probably unknown to the Spanish Government that the law-
yers, in giving the opinion to which it attaches so much value, (advising
action adverse to the United States,) violated a positive statute of their
own country forbidding communications of any sort with foreign Govern-
ments or agents on subjects to which their own Government is a party."
Mr. Madison, Sec. of State, to Mr. C Pinckney, Feb 6, 1804. MSS. lust., Min-
isters.

700

CHAP. I V.J PRESENTS NOT ALLOWABLE. [§110.

XXXIV. PRESENTS NOT ALLOUAJiLE.

§ 110.

In the session of 1798 a resolution i)assed the Senate autlioiiziiif; Mr.
Thomas Pinckney to receive certain presents tendeicd him by the courts
of Madrid and London, respectively, on the termination of his missions
to those idaces. The resolution was rejected in the House, thonj^h a
resolution was subsequently unanimously adopted statinji" that ji^roiind
of this rejection was public policy, and dischumin.^- any personal refer-
ence to Mr. Pinckney. (See 5 Hi'ldreth, U. S. 237.)

"A custom i^revails among the European sovereigns, upon the con-
clusion of treaties, of bestowing presents of jewelj-y or other articles of
pecuniary value upon the minister of the power with which they were
negotiated. The same usage is repeated ui)on the minister's taking
leave at the termination of his mission. In Great Britain it is usual to
offer the minister, at his option, a sum of money, graduated according
to his rank, or a gold box or other trinket of equal value. Tlie accept-
ance of such presents by ministers of the United States is expressly
forbidden by the Constitution, and even if it were not, while the United
States has not adopted the custom of inaJcing am^h ])resents to the diplo-
matic agents of foreign powers, it can scarcely be consistent with the
delicacy and recii)rocity of intercourse between them for the ministers
of the United States to receive such ftivors from foreign princes as the
ministers of those i)owers never can receive from this Government in
return. The usage, exceptionable in itself, can be tolerated only by its
reciprocity. It is expected by the President that every offer of such
present which may in future be made to any public minister or other
officer of this Government abroad, will be respectfully but decisively
declined."

Mr. J. Q. Aflaius, Sec. of State, to Mr. Eush, minister at Londou, Nov. G, 1H17
MSS. Inst. Gr. Brit. ; House Doc. No. :502, '2:3cl Cong., Istsess. r

"I am directed by the President to instruct the ministers, consuls,
and other diplomatic and commercial agents of the United States that
it is required of them that in future they will not, unless the consent of
Congress shall have been previously obtained, accept, under any cir-
cumstances, presents of any kind whatever from any king, prince, or
foreign state."

Mr. McLaue, Sec. of State, circular, Jan. 6, 1834. House Doc. No. 3U2, 23(1 Coni:.,
Ist sess.

This document contains a report (March 4, 1834) from Mr. Archer,
from the Committee on Foreign Affairs, in whicli it is stnted that ''the
Government of the United States is the only one kiiown to lay its agents
employed in foreign intercourse under strict interdiction as regards the
acceptance of presents in any form. This interdiction being in the Con-
stitution, could derive no increase of notoriety more than authority from
instructions to our agents abroad."

767

§ 110.] DIPLOMATIC AGENTS. [cHAP. IV.

Tlie report goes on to say that the acceptance of presents has, not-
witlistanding, taken place in cases when, in oriental countries, such
acceptance is a matter of invariable usage, and when "refusal of accept-
ance would furnish occasion for resentment, compromising oftentimes
the efQcacy of the agency, or it might be even the official immunities or
personal security of the agent." The presents in such cases, when not
l)erishable, have been deposited in the State Department, or, when not
susceptible of such deposit (as with horses), sold, and the iiroceeds sent
to the Treasury.

On the subject of acceptiug office or honors from a foreign country,
we have the following:

" While recognizing to the fullest extent the eminent service of Cap-
tain Martinez, of th^ Chilian ship-of-war Meteor, in rescuing the sur-
vivors of the crew of the United States merchant ship Manchester,
under circumstances of extreme distress, the uniform practice of this
Government forbids the presentation to that of3Bcer, in its own name,
of any tangible token of this recognition. As all officers of the United
State are forbidden to receive such rewards from foreign Governments
for actions or services of striking merit, it is deemed delicate not to
confer obligations in this respect upon foreign officers, which their
Governments could not, under similar circumstances, be j)ermitted to
reciprocate.

"In the mercantile marine no such difficulty exists, and Congress, as
you are aware, has placed a liberal fund at the disposal of the Presi-
dent for the purpose of enabling him to offer suitable testimonials to
those brave men who so often imperil their own lives in behalf of
others."

Mr. Marcy, Sec. of State, to Mr. Starkweather, Sept. 1, 1855. MSS. Inst., Chili.

"The Constitution of the United States provides that no person hold-
ing any office of profit or trust under the United States shall without
the consent of Congress accept of any office or title of any kind what-
ever from any king, prince, or foreign state. The terms of this provis-
ion of the Constitution of the United States neither prevent nor author-
ize persons who may hold office under any one of the States from accept-
ing an appointment under a foreign Government."

Mr. Hale, Asst. Sec. of State, to Mr. Eoseuberpj, May 22. 1872. MSS., Doiu. Let.

"Diplomatic officers are forbidden from asking or accepting, for them-
selves or other persons, any presents, emolument, pecuniary favor, office,
or title of any kind from any foreign Government. It not unfrequently
hax)pens that diplomatic officers are tendered i^resents, orders, or other
testimonials in acknowledgment of services rendered to foreign states
or their subjects. These cannot be accepted without previous author-
ity of Congress.

"It is thought more con^nant with the character of the diplomatic
representation of the United States abroad that every offer of such
presents should l)e respectfully, but decisively, declined. This having

758

CHAP. IV. J PRESENTS NOT ALLOWABLE. [§ 110.

been for several years a stamliiij; instruction to all our a;,a'Hts abroad,
the rule is, probably, so well known as to i)reveut the otier oi" such
presents iu future; but it is deemed proper to call the attention of ofh-
cers to the subject, and to observe that, should there be reason to antic-
ipate such an oft'er, informal notice, given in the proper (juarter, of the
l^rohibitiou against accepting a direct tender thereof would avoid the
apparent ungraciousness of declining a courtesy."

Printed Pers. Inst., Di]>. Agents, IHn.').

Ab to accepting and giving prtisents, see Mr. Webster, Sec. of State, to Mr. CubIi-
ing, May 8, 1843, (luoted siqyra, ^ 87.

See as to presents to the President of the United States, Senate Rep., Ex. Doc.
No. 23, 37th Cong., 2d sess.

As to presents offered to George P. Marsh, arbitrator between Italy and Switz-
erland on a qnestion of bonndary, by those Governments, see Senate Mis.
Doc. 10, 44th Cong., Ist sess.

As to report in favor of Mr. J. R. Hawley's acceptance of decorations fioui the
Governments of the Netherlands and of Japan, July 15, 1882, see House Rep.,
1652, 47th Cong., Ist sess.

769

CHAPTER V.

CONSULS.

I. Eligibility of, (S 113.

II. Appointment and qualifying of, § 114.

III. Exequatur, ^ 115.

IV. Dismissal, § 116.

V. Not ordinarily diplomatic agents, § 117.

VI. Vice-consuls and consular agents, ^ 118.

VII. Not to take part in politics, ^ 119.

VIII. Privilege as to process, § 120.

IX. Other privileges, § 121.

X. Eight to give asylum and protection, § 122.

XI. Business relations of, *J 123.

XII. Port jurisdiction of seamen and shipping, § 124.

XIII. Judicial functions in semi-civilized lands, § 125.

I. ELIGIBILITY OF.

§ 113.

" If Congress should think proper to appoint consuls we are humbly
of opinion that the choice will fall most justly, as well as naturally, on
Americans, who are, in our opinion, better qualified for this business
than any others, and the reputation of such an office, together with a
moderate commission on the business they may transact, and the advan-
tages to be derived from trade, will be a sufficient inducement to under-
take it, and a sufficient reward for discharging the duties of it."

Messrs. Franklin, Lee, and Adams, to the President of Congress, July 20, 1778.
7 John Adams' Works, 20. See also, ibid. 209.

"From the nature, variety, and importance of consular duties, and
their bearing on the commercial interests of nations, consuls ought
always to be citizens of the country which- they represent. Accordingly
Vattel (Book 2, cap. 2, sec. 34) declares that ' the functions of a consul
require, in the first place, that he should be not a subject of the state
where he resides, as, in this case, he would be obliged in all things to
conform to its orders, and thus not be at liberty to acquit himself of
the duties of his office.' Chitty, in his Commercial Law (vol. 1, page
48), adopts the same principle. It is true he proceeds to say : " But,
contrary to this i^rinciple, it is not unusual to appoint a native of the
foreign state to be consul there, as in Portugal, Spain, and Italy, where
there is a scarcity of British subjects, and in which it has been custom-
ary for the consul-general to api)oint natives of such countries to act as
760

CHAP, v.] ELIGIBILITY OP. [§113.

their deputies at inferior ports.' He adds, however, ' but this, it has
been observed, is an unwarrantable and impolitic practice.'

"The President, at an early period of liis administration, had this
subject under consideration, and determined to appoint no consuls wlio
were not American citizens, and, indeed, several consuls have been
removed because they did not possess this qftalification."

Mr. Buchanan, Sec. of State, to Mr. Donelson, Dec. IG, 184G. MSS..Iust., Prussia.

"As a general rule it is preferable that United States citizens only
should be appointed to all consular ofiices. When, however, none can
be found to serve at a i)articular place, aliens may be selected, giving
the prtiference to citizens or subjects of other nationalities than that of
the country where the officer is to serve.

"When, however, no such person can be found a subject of the coun-
try may be api)ointed if not contrary to law or treaty. If any other
country has a consular officer in Tripoli who is a Turkish subject the
United States may claim the same privilege under their treaty. In the
case of a consular agent, however, it would be advisable previously to
name to the local authorities the person proposed to be appointed, if
they should not object."

Mr. Hunter, 2d Asst. Sec. of State, to Mr. Vidal, Aug. 11, 187:?. MSS. Inst.,
Barb. Powers.

" The experience of the Government has demonstrated the inconven-
ience and often serious embarrassment resulting from the appointment
of naturalized citizens to consulates within the country of their nativity,
while with regard to appointments in other countries they stand on the
same footing as all other citizens."

Mr. Fish, Sec. of State, to Mr. Glover, Apr. 7, 1870. MSS. Dom. Let.
As to the impolicy of appointing naturalized citizens as consuls to the country
of their origin, see Schuyler's Am. Diplom., 79.

By section 1744, Eevised Statutes, " No compensation provided for
any officer mentioned in section sixteen hundred and seventy five, or for
any assistant secretary of legation, or any approjjriation therefor, shall
be applicable to the payment of the compensation of any person ap-
pointed to or holding any such office who shall not be a citizen of the
United States ; nor shall any other compensation be allowed in any such
case."

Section 1675 is as follows :

" Embassadors, envoys extraordinary, and ministers plenipotentiary,
ministers resident, agents, and secretaries, and second secretaries of
legation, shall be entitled to salaries as hereinafter provided.

'.' Envoys extraordinary and ministers i)lenipotentiary to France, Ger-
many, Great Britain, and Russia, seventeen thousand five liuiidred
dollars each; to Austria, Brazil, China, Italy, Japan, Mexico, and
Spain, twelve thousand dollars each ; to Chili and Peru, ten thousand
dollars each.

" Minister resident accredited to Guatemala, Costa Rica, Honduras,
Salvador, and Nicaragua, ten thousand dollars.

"Minister resident at Uruguay, ten thousand dollars.

761

§ 113.] CONSULS. [chap. v.

" Ministers resident at Portugal, Switzerland, Greece, Belgium, Neth-
erlands, Denmark, Sweden and Norway, Turkey, Ecuador, Colombia,
Bolivia, Venezuela, Hawaiian Islands, and the Argentine Eepublic,
seven thousand live hundred dollars each.

"Minister resident and consul general at Hayti, seven thousand five
hundred dollars.

" Minister resident and consul-general at Liberia, four thousand dol-
lars.

"Agent and consul-general at Alexandria, three thousand five hun-
dred dollars.

" Secretaries of legation to London, Paris, Berlin, and St. Petersburg,
two thousand six hundred and twenty-five dollars each,

" Secretary of legation to Japan, two thousand five hundred dollars.

" Secretaries of legation to Austria, Brazil, Italy, Mexico, and Spain,
one thousand eight hundred dollars each.

" The second secretaries of the legations to France, Great Britain,
and Germany, two thousand dollars each."

"Ambassadors and envoys extraordinary and ministers plenipoten-
tiary shall be entitled to compensation at the rates following, per annum,
namely:

"Those to France, Germany, Great Britain, and Russia, each, seven-
teen thousand five hundred dollars.

"Those to Austria, Brazil, China, Italy, Japan, Mexico, and Spain,
twelve thousand dollars.

"Those to all other countries, unless where a different compensation
is prescribed by law, each, ten thousand dollars.

"And, unless when otherwise provided by law, ministers resident and
commissioners shall be entitled to compensation at the rate of seventy-
five per centum, charges d'aflaires at rate of fifty per centum, and secre-
taries of legation at the rate of fifteen per centum, of the amounts allowed
to embassadors, envoys extraordinary, and ministers plenipotentiary to
the said countries respectively; except that the secretary of legation to
Japan shall be entitled to compensation at the rate of twenty-five hun-
dred dollars per annum.

" The second secretaries of the legations to France, Germany, and
Great Britain shall be entitled to comx)ensation at the rate of two thou-
sand dollars each per annum.

In the consular and diplomatic appropriation bill, approved Feb-
ruary 25, 1885, there is the following clause :

" For consular officers not citizens of the United States, six thousand
dollarsJ^ ,

This item is also found in the consular and diplomatic act approved
July 1, 1886. It is intended to cover salaries of vice-consuls who are not
United States citizens. In August, 188C, it is said that there is not a
single alien appointed to a salaried consulate, though we have several
cases of such appointments at small feed consulates and commercial ,
agencies.

The objections to the appoiutmeut of inercliants as consuls are noticed in G
Hunt's Merch. Mag., 301 ; 10 ibid., 447; 12 Hid., 211 ; 16 De Bow's Eev., 12.

The objections to the appointment of aliens as consuls are stated with much
force in 12 Hunt's Mag., 211/.

762

CHAP, v.] APPOINTMENT (J I' EXEQUATURS. [§§114,115.

II. APPOINTMENT AND QUALIFYING OF.
§ 114.

The consular convention between France an<l the United States did
not require the reception of consuls without respect to (piiilifications,
nor "supersede reasonable objections to a parti(;ular. jhtsom who ini;j:ht
at the moment V>e obnoxious to the nation to whi<;h he Mas sent, or
whose conduct might render him so at anj- time hereafter.''

Mr. Jeliersou, Hec. of State, to the minister of France, Dec. '.>, 17'.i:{. I .Jell.
Works, 90. MSS. Notes, For. Leg.

Mr. Livingston's report of Mar. 2, 1833, on the consular system, will be fouiul
in Senate Doc. No. 83, 23d Cong., 2d sess.

Attestation is not essential to the validity of a consular bond.
1 Op., 378, Wirt, 1820.

A consul's bond takes eflect from the time of its approval by the
Secretary of State. (R. S., § 1G97.) And where an ap[)ointee was com-
missioned consul on the 18th January, and his bond, dated l.'Uh of the
same month, was not approved until the 27th, this was held valid.

14 Oj)., 7, Williams, 1872.

" The provision of the act of Congress of May 1. 1810, fixing a salary
to the consul at Algiers, and assigning to him certain duties, treating
that place as belonging to a Mohammedan power, ceased to be operative
when the country, of which it was the principal city, became a province
of France. (See acts of March 1, 1855, and August 18, 185G.)
Mahoney v. U. S., 10 Wall., 62.

III. EXEQUATURS.
§ 115.

President Washington's order revoking the exequaturs of Duplaine,
French vice-consul at Boston, with the subsequent correspondence, is
given in 1 Am. St. Pap. (For. Kel.), IGl ff.

As to revocation of exequaturs, see 8 John Adams' Works, r,7G ; 9 ibid., 0, 170.

" Consuls are indeed received by the Government from acknowledged
sovereign powers with whom they have no treaty. But the exequatur
for a consul-general can obviously not be granted without recognizing
the authority from whom his appointment proceeds as sovereign. 'The
consul,' says Vattel (book 2, chap. 2, § 34), 'is not a public minister;
but as he is charged icith a commission from his sovereign^ and received in
that quality by them where he resides, he should enjoy, to a certain ex-
tent, the protection of the law of nations.'

763

§115.] CONSULS. [chap. V.

" If from this state of tbiiigs the inbabitauts of Buenos Ayres cannot
enjoy tbe advantage of being ofiicially rei^resented before the courts of
the United States bj^ a consul, while the subjects of Spain are entitled
to that privilege, it is an inequality resulting from the nature of the con-
test in which they are engaged, and not from any denial of their rights,
as parties to a civil war. The recognition of them, as such, and the
consequent admission of their vessels into the ports of the United States
operates, with an Inequality far more important, against the other party
to that contest, and in their favor,"

Mr. Adams, Sec. of State, to tlie President, Jan. 28, 1.S19. MSS. Report Book.

" The power of appointing consuls or vice-consuls is regarded as be-
longing, in the first instance, exclusively to the Government whose com-
mercial interests are committed to their care. This power, however,
is considered capable of being delegated to such persons and in such
manner as may be deemed expedient by those from whom the authority
must emanate. Before an exequatur can be granted by the President,
recognizing a consul or vice-consul of any nation as entitled to ex-
ercise his official functions in this country, evidence should be laid
before him that such officer is duly appointed, which could only be
done, consistently with the views just expressed, by producing a com-
mission, either directly from his Government or else from the authori-
ized agent; in which latter case it should be accomi)anied by the
instrument investing such agent with the necessary authority. This
power of appointment is frequently conferred upon consuls-general,
with or without limitation or modification, but is not necessarily or
uniformly attached to their office."

Mr. McLane, Sec. of State, to Mr. Lederer, Feb. 28, 1834. MSS. Notes, For. Leg.

The action of the Spanish Government in refusing exequaturs to
consuls, is final.

Mr. Forsyth, Sec. of State, to Mr. Eaton, Oct. 12, 1839. MSS. Inst., Spain.

The President, after commissioning a consul to whom the Govern-
ment to whom the consul is sent objects, " will not revoke the commis-
sion unless he should be satisfied that the reasons for not receiving him
were well founded and of a character to justify (that) Government in
refusing an exequatur."

Mr. Marcy, Sec, of State, to Mr. Daniel, Nov. 7, 1853. MSS. Inst., Italy,
As to refusal of exequatur on grounds personal to consul, see Mr. Seward,
Sec. of State, to Mr. Kirk, Apr. 27, 1864. MSS. Inst., Arg. Rep.

The insertion of conditions in an exequatur is unusual, and when
applied to United States consuls abroad will be excepted to by the
United States.

Mr. Fish, Sec. of State, to Mr. Sickles, Apr. 16, 1870. MSS. Inst., Spain.

764

CHAP, v.] EXEQUATURS. [§11;").

An exequatur will not be issued to n consul sent l»y ;i i'ora'ign (Jov-
ernment unless he presents a formal commission.

Mr. Marcy, Sec. of State, to Mr. Horner, Dec. 2'.>, 18.'):{ ; MSS. NotoH, Ar^. Kep.
See Mr. Fish, Sec. of State, to Mr. Garcia, Jan. 2'.], 1872 ; ibid.

The exequatur of the Pontifical consul at New York appointed prior
to 1871, will not be canceled on the sole ground of the absorption of
the Pope's temporal power in that of Italy.

Mr. Fish, Sec. of State, to Baron Blanc, Jnly 18, 1876, MSS. Notes, Italy.

" The provisions of existing consular treaties between the United
States and foreign countries speak in general terms of the issuance of
an ' exequatur ' on recognizing consular officers, ev^en when of lower
grade than that of full consul. Inasmuch as it seems inexpedient that
the exequatur, in the form of an official paper signed by the President and
bearing the great seal of the United States, should respond to usual
modes of appointment of foreign consular officers other than by a regu-
lar commission signed by the chief executive of the appointing state, and
bearing its great seal, it has been deemed proper to issue a less conspicu-
ously formal exequatur in the case of subordinate appointments made
by the consuls-general or consuls of foreign powers in this ccmntry under
their own signature and seal of office. This course, besides being more
conformable to the principles of international etiquette, is understood
to be in accordance with the course of recognition of like subordinate
officers of the United States in foreign countries."

Mr. Evarts, Sec. of State, to Mr, Sherman, Dec. 12, 1879. MSS. Doni. Let.

" Where provisional notification is given the Government of the
United States of the appointment of a consular officer pending formal
presentation of his commission and application for an exequatur, no
exequatur or certificate of recognition issues, but the Secretary of the
Treasury is required to cause the officers of his Department to give tem-
porary recognition to the acts of such consular officer. After a rea-
sonable lapse of time, if no further action be taken confirmatory of the
appointment, it is dropped from the record."

Mr. Blaine, Sec. of State, to Sir E. Thornton, May 29, 1881. MSS. Notes, Or. Brit.

"The exercise of the undoubted right of withholding an exequatur
is * * * an extreme one. In this country it is rarely resorted to."
Mr. Blaine, Sec. of State, to Mr. Morgan, May :U, 1881. MSS. Inst., Mox.
See also same to same, June 29, 1881,

The refusal of an exequatur by a foreign Government, when not in-
volving an invasion of the prerogatives of the United States under the
law of nations, will not be excepted to.

Mr, Bayard, Sec, of State, to Mr. Cox, Apr. 29, 1886. MSS. Inst., Turkey.
See same to same, Mar. 24, 1886 ; ibid.

"When ;i consul is appointed it is the practice of the Department of
State to send the consular commission to the diplomatic rei)iosenta-
tive in the country to which the consular district belongs, with lustruc-

765

§ 116.] CONSULS. [chap. v.

tioiis to apply iu tlie proper quarter for au exequatur, by wbicli the cou-
aular officer is officially recognized and authorized to discharge his
duties. When the exequatur is obtained it is transmitted to the con-
sular officer at his post, through the consulate-general, if there be one in
the country, otherwise directly to his address. The consular commis-
sion is also sent to him at the same time. It is usual also to apply in
the same manner for the exequaturs or formal recognition of subordinate
officers. The practice in respect to such officers in the colonies or de-
l)endencies of a country is to instruct the consul general, or the princi-
pal consular officer if there be no consul-general, to apply to the proper
colonial authority for permission for the subordinate to act temporarily-
in his official capacity pending the result of the request for the exequa-
tur. Upon the application of the consular officer, or of the consul-
general when there is one, the diplomatic representative may make to
the minister of foreign affairs such request for temi^orary permission to
act in the case of any consular officer under his jurisdiction."

Printed Pers. Inst., Dip, Agents, 1885.

" Refusals to grant the exequatur are not uncommon. An JWnglish con-
sul was refused by Russia, in the Caucasus, because it was alleged that
he was hostile to the Russian Government, and had expressed strong
opinions about Russian movements in Asia. In our own history, with-
out going further back, a consul recently appointed to Beirut was re-
jected by Turkey, because he was a clergyman, and might be too much
connected with missionaries ; another was rejected by Austria on
account of his political opinions, he having previously been an Austrian
subject."

Schuyler's Am. Diplom., 96.

IV. DISMISSAL.

§ 116.

The exequatur of Mr. Duplaine, French vice-consul at Boston, was
revoked, iu October, 1793, for the reason that he had, "by au armed
force, opposed the course of the laws of this country * * * by res-
cuing out of the hands of an officer of justice a vessel which he had
arrested" by judicial process.

Mr. Jefferson, Sec. of State, to Mr. Monroe, Oct. 3, 1793. MSS. Inst., Ministers.
See also letter of same date to Mr. Duplaine. MSS. Dom. Let. 1 Am. St.
Pap. (For.Rel.), 178.

Under Jay's treaty each Government had the right of dismissing
consuls for such reasons as it should itself think proper. But this did
not preclude a dismissal based on special reasons of 'policy to be spe-
cially assigned.

1 J. Q. Adams' Mem., 157.

"The President of the United States requests the Secretary of State
to give directions for preparing letters to the consul-general, and all the
other consuls and vice-consuls of the French Republic throughout the
United States, revoking their exequaturs, and a ])roclamatioii announc-
ing such revocation to the public; the proclamation to be published,
766

CHAI'. v.] NOT ORDINARILV DIl'LOMATIC AGENTS. [§ 117.

and the letters expedited, as soou as the law shall bi^ passed declaring'
the treaties and convention no longer obligatory."

President Adams to Mr. Pickeriujj, Sec. of State, July 7, 1798. 8 John Adams'

AVorks, 57(5.'
The correspondence with Great Britain in 185G, rehitivo to the witlidrawal of

exequaturs' from consuls in consequence of their being concerned in illegal

enlisting, will bo found in Br. and For. St. I'ap. for lfc57-'58, vol. 48, 190,

214, 220, 226, 273, 290.

Mr. Bunch, British consul at Charleston at the beginning of the late
civil war, having been instructed by his Goverinent, in agreement with
the French Government, to communicate to the authorities of the "so-
called Confederate States the desire of those Governments that the
second, third, and fourth articles of the Declaration of Paris should be
observed by those States," entered upon such communication with the
"Confederate authorities." This was sustained by his Government,
who declined to recall him. The Government of the United States, for
this, as well as for other rea-sons, revoked Mr. Bunch'.s exequatur.

Mr. Seward, Sec. of State, to Mr. Adams, Oct. 23, 1861. MSS. Inst., Gr.Brit.

See supra, U 97, 10.5, 109; infra, § 119.
That recall of consul at request of Government to which he is sent is usual,

see Mr. Fish, Sec. of State, to Aristarchi Bey, Dec. 11, 1876. MSS. Notes,

Turkey.

Consuls are approved and admitted by the local sovereign. If
guilty of illegal or improper conduct their exequatur may be revoked,
and they may be punished, or sent out of the country, at the option of
the offended Government.

CoppeU V. Hall, 7 Wall., 542.

If a consul be guilty of illegal or improper conduct he is liable to

have his exequatur revoked and to be punished according to the laws

of the country in which he is consul, or he may be sent back to his own

country, at the discretion of the Government which he has offc^nded.

2 Op., 725, Butler, 1835.

V. NOT ORDINARILY DIPLOMATIC AGENTS.

§117.

"Consuls are not diplomatic characters, and have no immunities
whatever against the laws of the land; and hence they can be i)rose-
cuted for breach of neutrality laws."

Mr. Jefferson, Sec. of State, to Mr. Gore, Sept. 2, 1793. MSS. Dom. Let.

A consul-general, resident as such in the Uniteil States, is not en-
titled to be regarded as a " diplomatic representative."

Circular of Mr. Van Biu-en. Sec. of State, May 5, 1830. MSS. Dom. Let.

767

§ 117.] CONSULS. [chap. v.

A consul-general, bj" the law of nations, is not entitled to any diplo-
matic immunity ; nor is he by the treaty between the United States and
Great Britain.

Mr. Seward, Sec. of State, to Mr. Bates, Nov. 21, 1865. MSS. Dom. Let. See
fupra, $ 92.

" Consuls have diplomatic functions in Barbary States. Tte United
Stales consul is accredited to the Emperor of Morocco." But such con-
suls yield as to precedence to ministers plenii^otentiary from other sove-
reigns.

Mr. Seward, Sec. of State, to Mr. McMath, Dec. 30, 1868. MSS. Inst., Barb.
Power?. SeeMr. Davis, Asst. Sec. of State, to Mr. Vidal, July 10, 1873. Ihid.

" In our treatment of foreign consuls in this country, while we recog-
nize that as a general rule consuls are not entitled to diplomatic exemp-
tions, we admit the principle of reciprocal treatment, and indeed take
the initiative in giving to foreign consuls all rational exemptions in
matters deiJendent on their ofiQcial position, especially when they are
not engaged in business. A consul not transacting business, or hold-
ing property here in his personal capacity, is not taxed by reason of his
official residence, and the official supplies sent to him are exempt from
customs duties; but these exemptions should be reciprocal and depend
on our consuls receiving like treatment in the foreign country.

" It seems desirable to a full consideration of the question that the
British rule should be known, and in the event of its being different
from ours, that a definite understanding should be had between the two
Governments."

Mr. Bayard, Sec. of State, to Mr. Phelps, July 21, 1885. MSS. Inst., Gr. Brit.

It is not competent for a consul, without the special authority of his
Government, to interpose a claim on account of the A^iolation of the
territorial jurisdiction of his country.

The Anne, 3 Wheat., 435.

In the absence of other representatives, consuls are entitled to rep-
reseat their fellow countrymen in a foreign court of admiralty without
special authority: though they cannot, without special authority, re-
ceive restitution of the property in litigation.
The Bello Corunnes, 6 Wheat., 152.

While a consul of a foreign power is not entitled to represent his
sovereign in a country where the sovereign has an ambassador, he is
entitled to intervene for all subjects of that power interested.
Robsou r. The Huntress, 2' Wall., jr., 59.

As a general rule a consul is not entitled by the law of nations to
the immunities and privileges of an ambassador or public minister.

GittJngs V. Crawford, Taney's Decis., I,

708

CHAP, v.] NOT ORDINARILY DIPLOMATIC AGENTS. [§ 117.

Consuls, unless otherwise provided by tireaty, are entitled to no diplo-
matic privileges.

1 Op., 41, Bradford, 1794; 2 ibid., 378, Berrien, 1830.

A consul is not such a imblic minister as to be entitled to the ])rivi-
leges appertaining to that character, nor is he under the special i)rotec-
tiou of the law of nations. He is entitled to privileges to a certain
extent, such as safe-conduct, but he is not entitled to the ju.s gentium.
It may be considered as settled law that consuls do not enjoy the pro-
tection of the law of nations any more than any other persons who enter
the country under a safe-conduct.

2 Op., 725, Butler, 1835.

Consuls do not enjoy the privilege of extraterritoriality.

7 Op., 18, Gushing, 1854.

When a consul is appointed charge d'affaires, he has a double polit-
ical capacity ; and though invested with full diplomatic privileges, he
becomes so invested as charge d'affaires, not as consul.

7 Op., 342, Cushing, 1855. See supra, § 88.

Such extraterritoriality as consuls enjoy in the Mohammedan states,
for example, is due to the fact that these states are not admitted to a
full community of international law with the nations of Christendom,
and not to the consular office. The institution of consuls originated in
the mere fact of differences in law and religion, at that period of modern
Europe in which it was customary for distinct nationalities, coexisting
under the same general political head, and even in the same city, to
maintain each a distinct municipal government. Such municipal colo-
nies, organized by the Latin Christians, and especially by those of the
Italian Republics in the Levant, were administered, each by its consuls,
or proper municipal magistrates, whose commercial relation to the busi-
ness of their countrymen was a mere incident of their general munic
ipal authority. The authorization of a consul to communicate directly
with the Government near which he resides does not endow hi in with
the diplomatic privileges of a minister.

7 Op. 342, Cushing, 1855,
Private extraterritoriality, as to consuls, hjis fallen into desuetude
among the Governments of Christendom j but it is still claimed by us in
our intercourse with non-Christian nations, though not conceded to their
consular officers in the United States.

Ibid.

In the United States Consular Regulations, as revised in 1881, it is
stated that " a consular officer in civilized countries now has, under
miblic law, no acknowledged rej^resentative or diplomatic character as
re^^ards the country to which he is accredited. He has, however, :i
certain representative character as affecting the commercial interests

S. Mis. 162— VOL. I 49 ^^^

§ 117.] CONSULS. [chap. v.

of the country from which he receives his appointment, and there may
be circumstances, as, for example, in the absence of a diplomatic rep-
resentative, which, apart from usage, make it proper for him to address
the local government upon subjects which relate to the duties and rights
of his office, and which are usually dealt with through a legation." In
section 76, "Although consuls have no right to claim the privileges and
immunities of diplomatic representatives, they are under the special
protection of international law, and are regarded as the officers both
of the state which appoints and the state which receives them. The
extent of their authority is derived from their commission and their
exequatur; and it is believed that the granting of the latter instrument,
without express restrictions, confers on the consul rights and privileges
necessary to the performance of the duties of the consular office ; and,
generally, a consul may claim for himself and his office, not only such
rights and i^rivileges as have been conceded by treaty, but also such as
have the sanction of custom and local law, and have been enjoyed by
his predecessors, or by consuls of other nations, unless a formal notice
has been given that they will not be extended to him."

"A consul may place the arms of his Government over his doors.
Permission to display the national flag is not a matter of right, though
it is usually accorded, and it is often provided for by treaty. * * *
The jurisdiction allowed to consuls in civilized countries over disputes
between their countrymen is voluntary and in the nature of arbitration,
and it relates more especially to matters of trade and commerce. A
consul, however, under jjublic law, is subject to the payment of taxes
and municipal imposts and duties on his property in the country or on
his trade, and generally to the civil and criminal jurisdiction of the
country in which he resides. It is probable, if he does not engage in
business, and does not own real estate, that he would not be subject to
arrest or incarceration, except on a criminal charge, and in the case of
the commission of a crime, he may either be i^unisbed by local laws, or
sent back to his own country."

"The privileges of a consul who engages in business in the country
of his official residence, are, under international law, more restricted,
especially if he is a subject or citizen of the foreign state."

It is added that inviolability of the consular archives is secured by
treaties with Austria-Hungary, Belgium, Denmark, France, Germany,
Greece, Mexico, Portugal, and Sweden; while inviolability of the con-
sular office and dwelling (but not as an asylum) is secured by treaties
with Belgium, France, Germany (of consuls not citizens), and Italy.
Exemption from arrest, except for crimes, is secured by convention with
Belgium, Germany, Netherlands, and Italy. "In Austria-Hungary and
France he is to enjoy personal immunities; but in France, if a citizen
of France, or owning property there, or engaged in commerce, he can
claim only the immunities granted to other citizens of the country who
own property, or to merchants. In Austria-Hungary, if engaging in
business, he can be detained only for commercial debts. * ♦ * In
Great Britain, Netherlands (as to colonies), Nicaragua, and Paraguay,
they are regarded as appointed for the protection of trade."

U. S. Cons. Reg., U 75, 76, 77, 78.

770

CHAP, v.] VICE-CONSULS AND CONSULAR AGENTS. [§118.

VI. VICE-CONSULS AND CONSULAR AGENTS.

§ lis.

It is not usual to grant an exequatur to any officer below the grade
of vice-consul.

Mr. Forsyth, Sec. of State, to Prince Metternich, Dec. 26, 18:i4. MSS. Not^s,
Germ. St. See Mr. Forsyth, Sec. of State, to Mr. Lederer, Feb. 3, 1838;
ihid.

" Consuls of the United States have no right to appoint vice-consuls,"
and " the consular agents they are authorized to constitute are not re-
garded as officers of the Government or as entitled to any privileges or
immunities from the Governments within whose territories they may
exist.

Mr. Forsyth, Sec. of State, to Mr. Morelli, June 20, 1837. MSS. Notes, Italy,
See same to same, Nov. 16, 1836.

"A consular agent, as you are aware, is not, strictly speaking, a
United States officer, being merely the agent of the consul from whom
he receives his appointment, though, pursuant to a regulation here long
established, the consuls must report the names of the agents, whom
they appoint, to this Department for approval. This Government does
not ask the foreign Government within whose territory- they reside to
receive and recognize them as its officers or agents. They are not en-
titled to a consular flag, and may not use any insignia of otlice contrary
to the laws of the country where they are.

" It was Mr. Webster's opinion that ' the consuls of the United States
have no authority to appoint vice-consuls, they being expressly in-
structed to appoint consular agents at such jvlaces within their consular
jurisdiction as they may deem necessary; ' and also that a 'a consular
agent stands in the same relation that any citizen would hold under
similar circumstances, and it is as a citizen of the United States only that
be can be considered, and not as an officer acting under the authority
of the United States.' "

Mr. Hunter, Asst. Sec. of State, to Mr. Everett, May 28, \^?>'^. MSS. Dom. Let.

Consular agents are now not appointed by consuls, but are nominated
by them and approved by the consul-general, if there be one, in the
country to which the consul is accredited, and receive a certificate of
appointment from the Secretary of State.
U. S. Cons. Reg., 1881.

A " deputy consul-general " is not a " consular officer " whose action
validates a marriage under the act of June 22, 1860 (Kev. Stat., § 4082).

Mr. Fish, Sec. of State, to Mr. Beardsley. Jan. 30, 1874. MSS. Inst., Barb.
Powers. See as to marriage »)ore fully, infra, ^ 800/. ; Printed Pere. Inst.,
Dip. Agents, $ 137.

771

§ 119.] CONSULS. [chap. v.

The practice in the United States, on notification of the appointment
by a foreign consul-general of a vice-consul, or a consular agent, is for
the President to require a formal certificate of appointment by the
Government represented by such vice-consul or agent, though it will
be sufficient if it appear that the appointment was made by the consul-
general in conformity with the laws of his country.

Mr. Evarts, Sec. of State, to Mr. Shishkiu, Nov. 14, ltf79. MSS. Notes, Russia.

Exequaturs do not issue to consular agents or vice-consuls. " Orders
to the Federal of&cers of the district where the appointee's functions are
exercised are deemed sufficient recognition."

Ibid.

The practice of the British Governmentis not tosubmit the commissions
of •' pro-consuls," or to ask for their recognition from the Government
within whose jurisdiction they are to act. " Unless Her Majesty's Gov-
ernment should be pleased to adopt a different course in this regard
hereafter, the pro-consuls will continue to be omitted from the list of
regularly recognized consular officers."

Mr. Blaine, Sec. of State, to Sir E. Thoruton, May 29, 1881. MSS. Notes, Gr.
Brit.

Vice-consuls are competent to hold consular courts in China when
dulj' ai)pointed or approved as such bj' the Secretary of State. (See
act of February 1,-1876, amending Eev. Stat., § 4130.)

7 Op., 495, Cushing, 1855. See infra, ^ 125.

A substitute or vice-consul, left in charge of the consulate during the
temporary absence of the consul, is to be compensated out of the statute
emoluments of the office, subject to regulations of the Department. An
acting consul in charge of a consulate during actual vacancy of the con-
sulate, is entitled to receive the statute compensation of the office.

7 Op., 714, Cushing, 1856.

Section 3 of act of 1866 (Rev. Stat., § 1729) is limited to unsalaried
consuls and commercial agents, and does not embrace consular agents.

12 Op., 975 Stanbery, 1866.

VII. NOT TO TAKE PART IN POLITICS.
§119.

Interference by a consul of the United States in the jiolitical affairs
of the country of his residence will be a sufficient ground for his recall.

Mr. Forsyth, Sec. of State, to Mr. Hunter, Nov. 16, 1836. MSS. Inst., Brazil.

" It is a Standing instruction to United States consuls abroad to ab-
stain from interference in the political affairs of the countries in which
they reside."

Mr. Cass, Sec. of State, to Mr. Bertinatti, Nov. 16, 1859. MSS. Notes, Italy.
772

CHAP, v.] NOT TO TAKE PART IN POLITICS. [§11^-

" It (your dispatch) was accoiniciiiiod by Karl Jiusscirs rcjily to tlie
note which, in execution of my instructions, you juhlresscd to liiiu on
the subject of the detention of a Ix-arer of dispatdu's sent by Itobcit
iiuucli. Her Majesty's consul at Chark'ston, and tbe substitution In me
of another person to convey his cousuhir bag to Great IJritaiii.

" Earl Eusseli says, in his not", that if it had been true (as we ai)pre-
hended) that Mr. Bunch had inserted into his oflicial bag and covered
with his official seal the correspondence of the enemies of this Govern-
ment in the United States, he would have been guilty of a grave l)reach
of his duty towards his own Government and tliat of the United States.
Earl Russell says also, that on tbe opening of the bag at the foreign
office (in London) no ground for that suspicion was revealed.

" These declarations, made with unquestioned candor and freedom,
are entirely satisfactory upon the main point involved in your note. It
is, therefore, a pleasant duty for me to instruct you to reply to Earl Rus-
sell that this Government regrets the interruption of the passage of the
consular dispatches, which has occurred in consequence of a mistaken
suspicion that the agent who transmitted them was abusing the conli-
dence of the two Governments. I sincerely hope that no serious incon-
venience resulted from the delay.

" Earl Russell, after making the explanations which I have quoted,
l)roceeds to remark that Her Majesty's Government was ad^ised that
the suspicion of the conveyance by post of letters from British subjects
between the Northern States and the Southern States was in contraven-
tion of the treaty on this subject contracted between the two Govern-
ments; that Her Majesty's Government had been, nevertheless, unwilling
to press this view on the United States ; but that this stoppage of the jxist
has occasioned great inconvenience to individuals. His lordship tlon
submits a copy of a note which Mr. Bunch had written to the under-
secretary of state, showing the mode in which he had endeavored to
])alliate the evil by inclosing private letters in his official bag. Ilis lord-
ship then dismisses the subject, saying that he shall address any further
communication he may have to make thereon to Lord Lyons.

" Mr. Bunch, in his note, states that he incloses in the bag, to the
under-secretary's address, certain letters which arc intended lor the
post, and that they are principally letters of servants, governesses, &c.,
British subjects, which, owing to the discontinuance of the post, they
are unable to send in any other way ; also, that some of the letters con-
tain dividends, the property of British subjects, which they coidd
scarcely receive without Mr. Bunch's intervention. lie adds that be
hopesthat there is no irregidarity in this proceeding, since no exjiensr
of postage is incurred, because the bag in which the letters are con-
tained goes by a private hand to Liveri)ool. I read this note under the
light thrown upon it by the explanations of Earl Russell, which show-
that the whole correspondence contained in the bag was innocent.

773

§ 120.] CONSULS. [chap. v.

" In these circumstances, what remains open to special exception in
Mr. Bunch's proceeding is his substitution of his consular bag and offi-
cial seal for the mail bag and mail locks of the United States, and of his
own mail carrier for the mail carriers of the United States.

" The proceeding of the consul in these respects certainly is not de-
fensible on any ground of treaty or international law ; nor does Earl Rus-
sell in anyway imply that he deems it is so. The proceeding, however,
was practically harmless, and it is not likely to be repeated."

jVIr. Seward, Sec. of State, to Mr. Adams, Oct. 22, 1861. MSS. Inst., Gr. Brit.;
Dip. Corr., 1861. See supra, §§ 97, 105, 116.

VUI. PRIVILEGES AS TO PROCESS.

§ 120.

" It is believed that under the laws and usages of France favors and
exemptions are extended to foreign consuls, and that in conducting his
defense Mr. CroxalPs proper course [in a proceeding against him for
assault] would have been to plead the i)rivileges of his official char-
acter. However this may be, the imprisonment of an American consul
residing in a foreign port is a serious evil and inconvenience, not only
as lessening his influence as an officer of his Government, but as calcu-
lated to i)roduce, in some cases, injurious effects on the interests of
American citizens confided to him, and to reflect dishonor on his coun-
try. It is, also, an infraction of the law of nations. Yattel says (vol.
2, chap. 2, § 34) that a sovereign ' by the very act of receiving a consul,
tacitly engages to allow him all the liberty and safety necessary in the
proper discharge of his functions, without which the admission of the
consul would be insignificant and deceptive.' And, again, speaking of
consular functions, the same author observes that 'they seem to require
that the consul should be independent of the ordinary criminal justice
of the place where he resides, so as not to be molested or imprisoned,
unless he himself violates the law of nations by some enormous misde-
meanor.' Our Constitution recognizes this doctrine by providing that
in all cases affecting consuls the Supreme Court alone shall have origi-
nal jurisdiction."

Mr. Forsytli, Sec. of State, to Mr. Cass, Dec. 6,1836. MSS. lust., France.
As to diplomatic priTileges, see supra, § $ 92 ff.

"If, however, as appears to have been the fact, he (Mr. Croxall) stood
upon the same ground as all other foreign consuls whose Governments
had not entered into conventional stipulations with France to secure
to those functionaries certain privileges and immunities, the United
States have no special reason to complain of the course of proceeding
against him. * * *

"So far as regards the civil action the United States do not assert
the right to interfere, except in cases of gross injustice, of which the
774

CHAP, v.] PRIVILEGES AS TO PROCESS. [§ 120.

Freuch tribunals, the President believes, are incapable. Whether the
arrest and detention were on the civil or criminal process is not yet
understood. On the whole the President thinks it proper to leave the
subject to your discretion, to be pursued or terminated, as you may deem
best, with this suggestion, however, that the occasion be taken to estab-
lish the understanding that whenever a consul of either party shall be
the subject of criminal prosecution requiring restraint upon him, and
thus interfering with his official duties, the Government proceeding
against him shall give notice to the diplomatic rei)resentative of the
other party of the charge against the consul, that such arrangements
for the performance of the consular duties, pending the investigation,
may be made as the honor and interest of his Government may require.
" To remove a doubt which you seem to have on the subject, it may
be proper to state that the clause in the Constitution of the United
States which gives to the Supreme Court original jurisdiction in all
cases affecting embassadors, other public ministers, and consuls resident
here, has been construed not to mean exclusive jurisdiction, and that
Congress has vested power in inferior courts of the United States for
the trial and punishment of offenses committed by such foreign agents
in violation of the laws of the country or the laws of nations."

Mr. Forsyth, Sec. of State, to Mr. Cass, Apr. 13, 1838. MSS. Inst., France.

A foreign consul is liable to be punished to the same extent as other
foreign residents for a criminal violation of the local law of the country
in which he resides.

Mr. Clayton, Sec. of State, to Mr. Calderou de la Barca, Aug. 28, 1849. MSS.

Notes, Spain.

A French consul in the United States is by treaty privileged from
compulsory detention in court as a witness, and if such attendance be
unadvisedly enforced, he should be discharged and a due apology made
to the French Government.

Mr. Marcy, Sec. of State, to Mr. Mason, May 30, 1854; June 8, 1854; July 14,
1854; Sept. 11, 1854; Dec. 13, 1854; Jan. 18, 1855. MSS. Inst., France.
See supra, ^ 98.

A refusal to attend for examination, without obvious good reason,
would be the ground for application to the French Government for in-
terference.

Same to same, Jan. 18, 1855. Ibid. See aupra, ^ 98.

"Without discussing the question whether Portuguese consuls have

all the rights and privileges of French consuls in the United States,

subsequently to the consular convention of February L*3, 1853, between

this country and France, the undersigned will consider the case of the

Portuguese consul in New York on the assumption that the provisions

of that convention applied to him.

776

§ 120.] CONSULS. [chap. v.

" Ui)oii this assuinptiou the Portuguese consul would uot be subjected
to compulsory process for the purpose of procuring his attendance as a
witness in court, unless he was required to give evidence for the defend-
ant in a criminal prosecution."

Mr. Marcy, Sec. of State, to Mr. De Figaniere, Mar. 27, 1855. MSS. Notes,
Portugal. See supra, ^ 9B.

"A consul in the United States or Great Britain is subject to arrest for
debt, whether engaged in trade or not. If engaged in trade he becomes
subject to all the local remedies as between mercantile creditors and
mercantile debtors. Of course he is subject, if bankru^jt, to the proc-
ess of bankruptcy commission in invitum, and the consequent forced
seizure of his assets, including choses in action, which in case of his
legally declared bankruptcy pass to the bankruptcy administrator just
as, if dead, the assets would pass to a probate administration. Such
being the course of proceedings in regard to an involuntary bankrupt,
the case is still stronger in the case of a voluntary bankrupt, and a
petitioner for the benefits of the bankrupt law. He becomes subject to
the local jurisdiction and to all its lawful decrees appertaining to the
debts and credits of the bankrupt, including the enforced surrender of
choses in action. Such are the principles which are applicable to the
case which you have presented for the consideration of this Depart-
ment."

Mr. Seward, Sec. of State, to Mr. Fuller, Mar. 23, 1861. MSS. Dom. Let.

A consul from Hanover carrying on trade at San Francisco is not en-
titled to exemption from testifying in a San Francisco court.

Mr. Seward, Sec. of State, to Judge Hoffman, July 22, 1862. MSS. Dom. Let.

When a consul for a foreign state declines to appear as a witness bo-
fore the courts of the country, when duly summoned, his exequatur may
be revoked. [In this case he was not privileged by treaty from testifying.
The question whether he could not have been compelled to appear by
attachment does not appear to have been raised.]

Janssen's case. Senate Ex. Doc. 1, spec. sess. U. S. Senate, 1867. Report of
Mr. Seward, Sec. of State, Mar. 28, 1867.

In Mr. Seward's report in this case the opinion of Mr. E. P. Smith,
examiner of claims, is given as follows: "This Government instructs
its consular officers, even where, as in France, there is a treaty stip-
ulation that they shall not be compelled to appear as witnesses be-
fore the courts, that it is nevertheless their duty, on invitation, to ap-
I)ear and give their testimony, unless necessarily prevented ; that they
have no right on account of their official position or disinclination, or
per.sonal inconveniences, to refuse compliance with such invitation, and
that a refusal without good cause therefor will be regarded as an a<^t
of disrespect toward the Government within whose jurisdiction the cou-
776

CHAP, v.] PRIVILEGES AS TO PROCESS. [§ 120.

Sill resides, and as a siiflieicut reason lor liis jrnioNal. (Coiisiilar Man-
ual, sections 039 and 041.)

" TLe United States expect from tliecoiKslilaroflicersoflbrei;L(n powers
the same respect for the courts, and the same readiness to coutribnte
their testimouj% when invoked in the administration of justice, which
we enjoin upon our own oflicers. Especially is this expected from con-
suls engaged in commerce, as was Mr. Janssen."

" It is settled that it is the privilege of the Government of Italy, not
1. -^ely the personal privilege of the consul, that it« consul should be
impleaded only in a Federal court. * * *

"The Executive has no capacity to control or influence the delibera
tions of any court, State or Federal. If it shall be made to appear after
the consul has fairly presented his case and prosecuted his defense to
the court of last resort that manifest error has intervened and has not
been corrected, tt may then become the duty of the executive Govern-
ment to consider its obligation to repair the wrong. Meantime, it is the
duty of the consul to avail himself of the means of defense which our
jurisprudence affords, and not contribute by his own negligence to an
erroneous decision."

Mr. Fish, Sec. of State, to Mr. de Colobiano, Dec. 22, 1869. MSS. Notes, Italy.

A person employed as interpreter to the United States consulate at
Tangiers, though a British subject, is not within British consular ju.ris-
diction at that place, "because he is in the service of an oflQcer of the
United States accredited to the Emperor of Morocco, and who, as such,
according to the usage of that country, is entitled to privileges of ex-
traterritoriality, one of which is the exemption of his servants, includ-
ing his interpreter, from any other jurisdiction than his own."

Mr. Fish, Sec. of State, to SirE. Thorutoii, Apr. o, 1872. MSS. Notes. Gr. Hril .

" On the 14th of November, 1783, before this Government went into
operation [a consular convention] was concluded with France. Ther»'
were, however, such difficulties attending the observance of its stipula-
tions on our part that its repeal, together with that of other treaties
with that country, by the act of Congress of the 7th of .Inly, 17«is, was
not regretted here. It is not unlikely that, combined with other causes,
the inconveniences experienced from that convention disincHned this
Government from concluding another of the same character until that
of the 4th of May, 1850, with New Granada. This was foHowed by ihe
consular convention with France of the 23d of February, 1853. This
last instrument had scarcely gone into eflect, however, when an un-
lucky oversight in the second article, stipulating the exemption of consuls
from arrest, occasioned much trouble and some anxiety to the Depart
ment. You will notice that the exemption is absolute and unf|ualilicd.
The sixth amendment to the Constitution of the United States, however,
provides that an accused party shall have comjiulsory process f<u ol)

§ 120.] CONSULS. [chap. v.

taining witnesses in his favor. The Mexican consul at San Francisco
being on trial for a violation of the neutrality act of 1818, required the
testimony of the French consul for his defense. The latter was sub-
poenaed accordingly, but, refusing to obey, was forcibly required to
appear in court. His Government complained of this as a breach of
the convention, and though the privilege of the Mexican consul was
claimed to be superior to the concession in that instrument, this was
not acquiesced in by the French Government, which required their flag,
when raised to the mast-heads of certain of their men-of-war at San
Francisco, to be saluted as a reparation for the alleged indignity to
their consul. It is, of course, desirable that in any future consular con-
vention no such oversight should be committed. Special pains have
been taken to avoid it in the consular convention with Italy of the 8th
February, 1868, which you may adopt as the general pattern of that
which you are authorized to conclude."

Mr. Fisli, Sec. of State, to Mr. Bassett, Oct. 18, 1872. MSS. Inst., Hayti. See
more fully, supra, § 98.

"In countries with which the United States have treaty stipulations
providing for assistance from the local authorities, consular officers are
instructed that it is undesirable to invoke such interposition, unless it
is necessary to do so. In cases of arrest and imprisonment, they will
see, if possible, that both the place of confinement and the treatment
of the prisoners are such as would be regarded in the United States as
proper and humane. If a request for assistance is refused, the consular
officer should claim all the rights conferred upon him by treaty or con-
vention, and communicate at once with the diplomatic representative
in the country, if there be one, and with the Department of State.
When such requests are made in accordance with long-established
usage, he should, when they are refused, make suitable representations
to the proper local authority, and likewise advise the legation and the
Department."

Printed Pers. Inst.; Dip. Agents, 1885.

The exemption of consuls in the United States from suits in the State
courts is not a personal privilege, but a privilege that attaches to their
official character; and an omission to plead it is not a waiver of it.
Davis V. Packard, 7 Pet., 276.

A foreign consul's privilege to be sued only in a Federal court is not
personal, but belongs to the sovereign whom he represents.
Durand v. Halbacli, 1 Miles (Phila.), 46.

Though not entitled to represent his sovereign in a country where the
sovereign has an ambassador, a consul is entitled to intervene for all
subjects of that power interested.

Robson V. The Huntress, 2 Wall., jr., 59.

Under the act of 18th August, 1856 (11 Stat., 56; Rev. Stat., § 1738),
which provides that "no consular officer shall exercise diplomatic func-
tions in any case, unless expressly authorized by the President so to

778

CHAP, v.] PRIVILEGES AS TO PROCESS. [§ 120.

do," a retiring minister cannot install a consul in charge of the lega-
tion, nor can the consul receive the pay provided by law for a charge
d'affaires.

Otterbourg v. U. S., 5 C. Cls., 430.

Both circuit and district courts of the United States have jurisdici ion
of suits brought against foreign consuls.

Saint Luke'a Hospital v. Barclay, 'S Blatch., 2i>^ ; Grabam c. .Stuckeii, 4 blatcli.,
50 ; Bixby v. Janssen, G Blatcb., 315 ; Gittings r. Crawlonl, Taut-y'sDecis., 1.

While State courts have no jurisdiction of suits against foreign com
suls, they may assume jurisdiction of suits commenced by consuls.
Sagory v. Wissmau, 2 Benedict, 240.

Where a foreign consul files a bill in equity in a State court, it seems
the court may entertain a cross-bill.
Ibid.

It has been held that a foreign consul may be arrested in the United
States circuit court, under the acts of February 28, 1839 (5 Stat., 321),
and January 14, 1841 (5 Stat., 410, Eev. Stat., ^ 990), and the New York
code of procedure, in a suit for money recovered by him in a fiduciary
capacity. It was held also that the pendency of a former suit in a State
court is no defense to a second suit lor the same cause of action in
the Federal court, as the State court had no jurisdiction.
McKay v. Garcia, 6 Benedict, 556.

Consular privilege cannot protect a consul as to mercantile matters
engaged in by him independent of his official business.

1 Kent, 44, 62 ; 2 Phill., 335 ; Arnold v. Ins. Co., 1 Jolins., 363 ; Griswold r. Ins.
Co., IG Jobns., 346; Indian Chief, 1 C. Rob. (Adm.), 26.

A consul is not a public minister, nor entitled to the privileges at-
tached to the person of such an officer.
1 Op., 41, Bradford, 1794.

The President has no authority to interpose in a suit against a consul,
though it be of a public nature and concern the consul's Govennnent.
A consul is not privileged from legal process by the law of nations, nor
is the French consul-general by the consular convention between the
United States and France, of L788, though the process against him is
limited to Federal courts.
1 Op., 77, Lee, 1797.

Foreign consuls and vice-consuls are not public ministers within the
law of nations, or the acts of Congress, but are amenable to the civil
jurisdiction of the courts. But they are bound to appear only in tlu'
Federal courts, the State courts being excluded by the Constitution and
laws.

1 Op., 406, Wilt, 1820.

^ 779

§ 120.] CONSULS, [chap. v.

Foreign codsuIs iu the Uuited States are entitled to no immunities
not possessed by foreigners coming into this country in a private ca-
pacity, except that of being sued and prosecuted exclusively in the
Federal courts. And, in addition, if guilty of any illegal or improper
conduct, they are liable to the revocation of their exequatur and to be
punished according to our laws ; or to be sent back to their own coun-
try, at the discretion of the Government.

2 Op., 725, Butler, 1835.

Foreign consuls are subject to criminal process for the violation of
the municipal laws. In addition to the ordinary means of redress, the
President may, in his discretion, withdraw the exequatur.

7 Op., 3G7, Cushing, 1855.

Citizens of the United States who hold foreign consulates in the
United States are not exempt from jury duty or service in the militia
by the law of nations.

8 Op., 169, Cushing, 1856. Adopted in Lawrence's Wheaton, (ed. 1863,) 430.

"By convention with Belgium, Germany, Netherlands, and Italy,
the consul is exempted from arrest, except for crimes. By treaty with
Turkey he is entitled to suitable distinction and necessary aid and
protection. In Muscat he enjoys ihe inviolability of a diplomatic offi-
cer. In Austria-Hungary and France he is to enjoy personal immuni-
ties ; but in France, if a citizen of France, or owning property there, or
engaged in commerce, he can claim only the immunities granted to
other citizens of the country who own jiroperty, or to merchants. In
Austria-Hungary, it engaging in business, he can be detained only for
commercial debts. In Colombia the consuls of the United States liave
no diplomatic character. In Great Britain, Liberia, Netherlands (as to
colonies), Nicaragua, and Paraguay, they are regarded as api^ointed for
the protection of trade.

" Exemption from obligation to appear as a witness is secured abso-
lutely by convention with France ; and, except for defense of persons
charged with crime, by conventions with Austria-Hungary, Belgium,
Italy, and Salvador. In such case the testimony may be taken in writ-
ing at his dwelling. If the consul claims this i3rivilege, be should, in
such case, offer to give his evidence in the mode prescribed by the par-
ticular convention, and should throw no im])edimeut in the way of tlie
proper administration of justice in the country of his official residence.

•' When the consul is not a citizen of the country in whicli the con-
sulate is situated, and does not own real estate therein, and is not en-
gaged in business therein, he is secured against the liability to taxation
by treaties or conventions with Austria-Hungary, Belgium, Bolivia,
Denmark, Ecuador, France, Germany, Hayti, Italy, the Netherlands
(and colonies), Peru, Salvador, Colombia, and Mexico; and in Ger-
many the ofiicial income of a consul is not taxable, but in the Do-
minican Republic, the Orange Free State, Persia, Portugal, the Haw-
aiian Islands, Russia, and Switzerland, if they engage in business they
are subject to the laws of the country. And, in general, if a consular
officer engages iu business or owns property iu the country of his offi-
cial residence, he cannot claim other exemptions in respect of such busi-

780

CHAP, v.] .OTHER I'lii \ ILKGES. [§ 1 '-Al-

ness or property than are accorded to citi/ciis or subjects ttl' the coiin-

" If not citizens of the country oi" their consuhir residence, or domi-
ciled at tlie time of the api)oiiitnient in it, tlie e\( ini)tion Croui military
binetinj>s or service is secured by conventions with Austria- 11 unj,Mry,
Belj;iuni, France, Germany, iS'^etherlands, and Jtaly ; and the exemption
from all public service is secured by treatses with Denmark, Gerniany,
Peru, San Salvador, Colombia (New Granada), and ^Mexico. Jn Colom-
bia, the exemption also extends to officers, secretaries, and attaches."
U. S. Cons. Reg., 1881, U 86 #.

IX. OTHER PRIVILEGES.
§ 1131.

" There is believed to be no difference between the death of a consul
and that of any other private foreigner in respect to his effects. The
consular oftice is not known to create any. Upon the death of any for-
eigner, whether consul or not, if he has left no family nor relations to
take charge of his estate at the place of his death, a practice i)revail8
to allow the consul of the country of the deceased to put his ollicial seal
upon the effects of the deceased, until the local law oi)erates upon them
by a grant of administration, or if no such administration be granted,
for the purpose of transmission to the kindred of the deceased."

Mr. Cliiy, Sec. of State, to Mr. Vaughan, Nov. 12, 1827. MSS. Notes, For. Leg.

How far a superseded consul can be compelled to deliver up the office
paj)ers to his successor is a question for the local judiciary.

Mr. Livingston, Sec. of State, to Mr. Tacon, Jnne 8, 183L MSS. Notes, For.
Leg. See Mr. Livingston to Mr. Tacon, June 16, 1831 ; ibid. See supra, ^
98#.

The Government of the United States will insist u])on reparation for
any personal injustice inflicted on one of its consuls in a foreign state.
Mr. Forsyth, Sec. of State, to Mr. Hunter, Apr. 11, 1837. MSS. Inst., Brazil.
Mr. Upshur, Sec. of State, to Mr. Proffit, Aug. 1, 1843 ; ibid.

" Ministers and consuls of foreign nations are the means and agents
of communication between us and those nations, and it is of the utmost
importance that while residing in the country they should feel a per-
fect security so long as they faithfully discharge their respective duties
and are guilty of no violation of our laws. This is the admitted law of
nations, and no country has a deeper interest in maintaining it thanthe
United States. Our commerce spreads over every sea, and visits every
clime, and our ministers and consuls are appointed to protect the inter-
ests of that commerce, as well as to guard the jteace of the country
and maintain the honor of its flag. But hov,- can they discharge these
duties unless they be themselves protected, and. if i>rotected, it must
be by the laws of the country in which they reside. And what is due

761

§ 121.] CONSULS. , [CHAP. V.

to our own public functionaries residing in foreign nations is exactly the
measure of what is due to the functionaries of other Governments re-
siding here. As in war the bearers of flags of truce are sacred, or else
wars would be interminable, so in peace embassadors, public ministers,
and consuls charged with friendly national intercourse are objects of
especial respect and protection, each according to the rights belonging
to his rank and station. In view of these important j)riuciples, it is
with deep mortification and regret I announce to you that, during the
excitement growing out of the executions at Havana, the office of Her
Catholic Majesty's consul at New Orleans was assailed by a mob, his
property destroyed, the Spanish flag found in the office carried off and
torn in j)ieces, and he himself induced to flee for his personal safety,
which he supposed to be in danger. On receiving intelligence of these
events, I forthwith directed the attorney of the United States, residing
at New Orleans, to inquire into the facts and the extent of the pecu-
niary loss sustained by the consul, with the intention of laying them
before you, that you might make provision for such indemnity to him
as a just regard for the honor of the nation and the respect which is
due to a friendly power might, in your judgment, seem to require. The
correspondence upon this subject between the Secretary of State and
Her Catholic Majesty's minister plenipotentiary is herewith trans-
mitted.

" The occurrence at New Orleans has led me to give my attention to
the state of our laws in regard to foreign embassadors, ministers, and
consuls.

" I think the legislation of the country is deficient in not providing
sufficiently either for the protection or the punishment of consuls. I
therefore recommend the subject to the consideration of Congress."

President Fillmore, Second Annual Message, 1851. (Mr. Webster, Sec. of State. )
See, as to tliis case, infra, § 226.

In extreme cases, where the privileges of a consulate are invaded,
the flag of the United States may be struck by the consul, and all
friendly intercourse with the authorities of the residence suspended.

Mr. Webster to Mr. McCauley, April 20, 1852. MSS. Inst., Barb. Powers.

As to action of French Government in this respect, see supra, $ 98 ; infra, ^ 315.

"The consuls of the United States are authorized and requested to
act as administrators on the estates of all citizens of the United States
dying intestate in foreign countries and leaving no legal representative
or partner in trade. Indeed, this is one of the most sacred and respon-
sible trusts imposed by their office, and in this respect they directly
represent their Government in protecting the rights and interests of
the representatives of deceased citizens. The consul of the United
States, therefore, was the only person who could legally touch the prop-
erty left by the deceased Parsons j it was his duty to deposit the pro-
782

CHAP, v.] OTHER PRIVILEGES. [§121.

ceeds thereof in the Treasury of the United States, there to await the
decision of the proper authorities as to its final disposition."

Mr. Marcy, Sec. of State, to Mr. Aspinwall, Aug. 21, 1855. MSS. Doru. Let.

For a consul to insert into his official bag and cover with his official
seal the correspondence of the enemies of a bellif^orcnt i)(>wer with
wliich his own Government is at peace, is a grave breach of duty to-
wards his own Government and that of the offended belligerent.

Mr. Seward, Sec. of State, to Mr. Adams (quoting Earl Russell), Oct. 22, 1861.
MSS. Inst. Gr. Brit. Dip. Corr., 1861. This instruction is given in full,
supra, § 119.

Insults by a foreign Government to a consul, or encroachments by
it on his rights, will justify a demand that in addition to otlier redress,
" the flag of the United States shall be honored with a salute."

Mr. Seward, Sec. of State, to Mr. Harvey, Nov. 29, 18G1. MSS. Inet., Portugal.
Infra, § 315.

The search of the person of a foreign consul, his imprisonment, and
the carrying off of his archives by the general in command of the United
States Army in a captured city, is a violation of the law of nations for
which the Government of the United States considers itself bound to
apologize, and to give all other suitable redress.

Mr. Seward to Mr. Van Limburg, June 3, 1862. MSS. Notes, Netherlands.
Same to same, Aug. 20, 1862 ; Sept. 4, 1862,

" So far as the protection of this Government may be requisite to en-
able a consular agent, Avhose appointment may have been approved by
the local authorities, to discharge his official duties, that ])rotection will
be given. The United States, however, will not undertake to guarantee
the business or safety of any alien in a foreign country, who, as he owes
them no lawful allegiance, can not on that account lawfully claim pro-
tection from them."

Mr. Fish, Sec. of State, to Mr. Mathews, Oct. 2, 1872. MSS. Inet., Barb. Powers.

"It is proper to say in reply that the subject of the settlement of the
estates of others than citizens of the United States, deceased abroad,
is one with which the Department has no oflBcial concern ; and where a
consular officer is employed and empowered by the parties interested
and he undertakes to act for them, he does so wholly in liis individual
capacity and not as an officer of the Government. While the Depart-
ment is frequently asked to give the names of its officers with a view to
their being employed in such a settlement, it does not undertake, in
complying with these requests, to assume any responsibility for tin'
manner in which the business is performed. Should it happen that
delay or mismanagement ensue, proceedings must be taken, if at all,
against him in his personal and not in his official capacity, the bond of
such an officer holding him only for default towards the Government."
Mr. Davis, Asst. Sec. of State, to Mr. Marvin, Mar. 5, 1873. MSS. Dom. Let.
See in/ra, $ 123. ^^

§ 121.] CONSULS. [chap. v.

" Your dispatch No. 99, of the 27th ultimo, relative to the raising of
the consular iiag in Mexico, has been received. This is a matter sub-
ject to municipal law, unless a privilege in respect to it should have
been granted by treaty. We have no other privilege than that of
equality with other nations, which will always be insisted on. It ap-
pears, however, that the authorities at the city of Mexico have over-
looked a strict observance of the law by allowing consuls to display
their flags on holidays of their respective nations. This, it seems to
me, is as much as may be needed. If, however, they should at any
time think proper to withdraw this indulgence, it is clear that we can-
not insist upon its continuance as a matter of right."

Mr. Fish, Sec. of State, to Mr. Foster, Feb. 16, 1874. MSS. Inst., Mex. ; For.
Eel., 1874.

As a consul by international law enjoys no privilege which puts him
upon a distinctive footling in regard to his private debts, his creditors
cannot expect any j)eculiar process for their recovery.

Mr. Fish, Sec. of State, to Mr. Schlozer, Dec. 11, 1874. MSS. Notes, Germ.

" The power to take the acknowledgment of deeds and other instru-
ments by consuls of the United States is a power conferred upon them
by State legislation, and is wholly outside of their functions as consuls or
officers of the General Government.

" The recording acts of the several States are understood to differ as
to their requirements and forms of certificates. It would be assuming
a responsibility which might be criticised, and which might lead to
mistakes resulting in serious consequences, were this Department to
undertake to instruct its officers in the discharge of powers which it
does not object to their performance for the convenience of the public,
but which are imposed or conferred upon them by the legislation of
several of the States, each one prescribing at its pleasure its own forms
and requirements of proof or idtintiflcation. This Department does not
profess to be informed as to the various requirements, whether by stat-
ute or possibly resulting from judicial decisions in the several States.

" It is therefore deemed most advisable to leave the execution of the
power couferred by State legislation on persons holding diplomatic or
consular functions under the General Government to the special instruc-
tions which may be given by them Avho desire to avail of their services."
Mr. Fish, Sec. of State, to Mr. Weeks, Jan. 21, 1875. MSS. Dom. Let.

" In the case of American citizens dying abroad it is made by law
the duty of the United States consul within whose jurisdiction such
death occurs to take charge of the effects of the deceased, cause an
inventory of such effects to be taken, and dispose of any that may be
deemed perishable by sale at public auction, and the proceeds of which,
together with all other property and moneys of the deceased, he is to
hold subject to the demand of the legal representatives of the deceased.
784

CHAP, v.] OTHER PRIVILEGES. [§121.

In case such representatives do not appear and demand the estate
within a year, the consul is required to transmit the effects to the
Treasury Department, there to await final distribution to the jtartics
entitled to receive them.

" The Department possesses no discretionary power to dispense witli
these requirements of the statute, and it will, therefore, be necessary
for some person to administer on the estate. Upon receiving,' a copy of
such letters of administration, duly authenticated, the Department will
give the necessary instructions to the consul at Matanzas to forward
the effects of the late Mr. Cbadwick directly to the address of his lejjal
representatives."

Mr. Cadwalader, Acting Sec. of State, to Mr. Chadwick, Aug. 19, IH7.'). ilSS.
Dom. Let.

Official communications to consuls from other Departments of (lov-
ernment must be sent through the Secretary of State.

Mr. Fish, Sec. of State, to Mr. Boutwell, Jan. 21, 1876. MSS. Doin. Let.

"When a citizen of the United States, not a seaman, dies abroa<l
without leaving a will, it is made the duty of a consul to take charge
of any property he may leave in the consular district, and, after ])aying
the debts of the deceased contracted there, to send the proceeds of the
property at the expiration of a year to the Treasury of the United
States, there to be held in trust for the legal representative. In case,
however, a legal representative shall appear and demand the effects,
the consul is required to deliver the property to him, after deducting
the lawful fees. The statute on this subject may be found in section
1709 of the Eevised Statutes of the United States."

Mr. Cadwalader, Asst. Sec. of State, to Mrs. Hopkins, Mar. 27, 1876. MSS. Dom.
Let.

"Your dispatch, No. 112, of the 28th January last, has been received.
It relates to the authority of the consul of the United States at Iquique
to grant clearances to American vessels. Your letter to him upon the
subject is in general approved, jSTo consul, pursuant to our law or
regulations, has the right to grant a clearance to any Anieriean vessel,
even if his post is at a port conquered and ])ossessed by the enemy of
the country from whose Government he may have received his exequat ni .
It is the exclusive province of the belligerent authority for the time
being — civil, military, or naval — to grant such clearances, and the con-
sul, as is required in time of peace, should not deliver the vessel's
papers until the clearance shall have been presented to him by the
master. The consul's course is not to be governed or inllueneed by the
components of the cargo of the vessel. If these, according to the exist-
ing authority, may lawfully be exi)orted, the consul eannot proj.erly
gainsay that opinion."

Mr. Evaxts, Sec. of State, to Mr. CLristiancy, Mar. 2, 1880. MSS. Inst., Pern;
included in documents accompanying President's message, Jan. 26, 1882.

S. Mis. 102— VOL. I 50 '^^

§ 121.] CONSULS. [chap. v.

The right of consular agents of Austria to hoist their national flag in
l)laces where their sovereign has no legation is established by the fourth
article of the consular convention of July, 1870, between Austria and
the dnited States, and this right cannot be impaired by any municipal
ordinance prohibiting the exhibition of flags.

Mr. Frelingbuysen, Sec. of State, to Gov. Pattison, Aug. 27, 1884. MSS. Dom.
Let.

''No consular officers in any country have the right or favor of free
entry for personal goods; and if, as Mr. Heap states, the Ottoman law
exempts from duty articles for the personal use and consumjition of
consuls, it is a piece of generosity and courtesy quite unknown to other
nations, and which we could not ask for and do not grant ourselves."

Mr. Bayard, Sec. of State, to Mr. Cos, Nov. 6, 1885. MSS. Inst., Turkey.
As to diplomatic exemptions in tills resj)ect, see supra, $ 93a.

The status of consuls as to marriages in foreign lands is considered
in future sections.

Infra, H 262 Jf.

It is not a consular function to authenticate the laws of a foreign
state, and the certificate of a consul to that effect is not evidence.
Churcli V. Hubbart, 2 Crauch, 187.

While consuls, when there is no other representation, and when
duly recognized, are competent parties to assert or defend the rights
of property of their fellow-citizens or subjects in a court of admiralty
without special procuration they cannot receive actual restitution of
the property in controversy without a special authority. But a vice-
consul, duly recognized by our Government, is a competent party
to assert or defend the rights of property of the individuals of his
nation, in any court having jurisdiction of causes affected by the appli-
cation of international law ; in this case a court of admiralty.
The Bello Corrunes, 6 Wheat., 152.

A consul cannot, by virtue of his office merely, interpose in a case
of prize, and make claim for the restoration of captured property on
the ground that the capture was made in neutral waters.

The Lilla, 2 Sprague, 177.

But in other cases the consul of a nation may claim on behalf of its
subjects, in the absence of any authorized agent.
The London Packet, 1 Mason, 14.

A consul, in an enemy's country, has no authority by virtue of his
office to grant a license or permit which will have the effect of exempt-
ing a vessel of the enemy from capture and confiscation.

Rogers r. The Aniado, 1 Newberry, Adm., 400.

786

CHAP, v.] OTHER PRIVILEGES. [§121-

Unless by statute or treaty a foreign consul can exercise no ujuui-
cipal jurisdiction in the United States.

Aubrey, in re., 26 Fed. Rep., 848.

In a suit brought aoainst a <'onsul-fceneral of France, for transac-
tions of a public nature, in which he acted as the commercial agent of
his country, the President has no constitutional right to interfere, but
must leave the matter to the tribunals of justice.

1 Op., 77, Lee, 1797.

In the instructions of a consul of the United States to Tunis, there
occurred the following : " On your way to Tunis (perhaps at Malaga or
]\Iarseilles) you may probably devise means for the liberation of <nir
unfortunate captives at Algiers. * * * Should you tiud a suitable
channel, therefore, through which you can negotiate their immediate
release, you are authorized to go as far as three thousand dollars a man ;
but a less sum ma3' jjrobably efiect the object. * * » If success
should attend your eflbrts you will draw upon this Department for the
necessary funds for paying their ransoms, and providing for their com-
fortable return to their country and friends." The consul employed an
agent at Cadiz for a certain hire and a promise of additional pay in case
of success, to endeavor to efiect the release of the captives, and then
drew bills on the Department of State, in favor of a merchant at Gib-
raltar, for the compensation stipulated to be paid, etc. : It was advised
that the employment of an agent was justified under the power. Objec-
tion, however, was made to the manner of the employment, as being
inconsistent with the true meaning of the instructions; and, after a
consideration of all the proceedings, which were much complicated by
several matters somewhat foreign to the main business, it was advised
that an application to Congress would be necessary.
1 Op., 196, Rush, 1816.

The rights and privileges of consuls rest on the general law of na-
tions and on treaty.

1 Op., 378, Berrien, 1830.

Consuls cannot intervene as of right in the administration of a de-
cedent's estate, except by way of surveillance.

8 Op., 98, Cusliing, 1856.

The United States are not bound by the treaty with Peru to i)ay a
consul of that country the value of property belonging to a tleceased
Peruvian, which the consul was entitled to administer, but which has
been unjustly detained and administered by a local public administra-
tor. The consul has a remedy in the courts.

9 Op., 383, Bliick, 1859.

787

§ 121.] CONSULS. [chap. v.

The certification of the official character of a foreign notary is not
such a notarial act as a consul of the United States is required to per-
form.

12 Op., 1, Stanbery, 1866.

As to consular courts, see infra, § 125.

As to consular fees, see Schuyler's Am. Diplom., 76.

Under Article I, section 9, of the Constitution of the Dnited States,
" no person holding any office of profit or trust under them, shall, with-
out the consent of the Congress, accept of any present, emolument,
office, or title of any kind whatever from any king, prince, or foreign
state." This applies to consuls and diplomatic agents.

See supra, $ 100.

"In the early Middle Ages, and before the establishment of more or
less permanent legations, consuls appear to have enjoyed the right of
extraterritorality, and the privileges and immunities now accorded to
diplomatic representatives. In non-Christian and semi-civilized coun-
tries these j)rivileges have to a large degree been preserved to them,
and they have the sanction both of treaty and usage. Upon the estab-
lishment of legations, however, the exemptions and immunities granted
to consuls came to be regarded as a limitation of the territorial rights
of the sovereign, and they have in the process of time been restricted
to such as are necessarily incident to the consular office, or have been
provided for by treaty, or are supported by long established custom, or
the particular laws of the place. A consular officer in civilized coun-
tries now has, under public law, no acknowledged representative or
diplomatic character as regards the country to which he is accredited.
He has, however, a certain representative character as afiecting the
commercial interests of the country from which he receives his appoint-
ment ; and there may be circumstances, as, for example, in the absence
of a diplomatic representative, which, apart from usage, make it proper
for him to address the local government upon subjects which relate to
the duties and rights of his office, and which are usually dealt with
through a legation.

"'Although consuls have no right to claim the privileges and immuni-
ties of diplomatic representatives, they are under the special protection
of international law, and are regarded as the officers both of the state
which appoints them and the state which receives them. The extent
of their authority is derived from their commission and their exequatur;
and it is believed that the granting of the latter instrument, without
express restrictions, confers upon the consul all rights and privileges
necessary to the performance of the duties of the consular office ; and,
generally, a consul may claim for himself and his office not only such
rights and ijrivileges as have been conceded by treaty, but also such as
have the sanction of custom and local law, and have been enjoyed by
his predecessors or by consuls of other nations, unless a formal notice
has been given that they will not be extended to him.

"'A consul may place the arms of his Government over his doors. Per-
mission to display the national flag is not a matter of right, though it
is usually accorded, and it is often provided for by treaty. He may claim
inviolability for the archives and official property of his office, and their
exemption from seizure or examination. He is protected from the bil-
leting of soldiers in the consular residence, and he may claim exemption
from service on juries and in the militia, and from other public duties.

788

CHAP, v.] OTHER PRIVILEGES. [§ 121.

It is probable, however that nil these privile^u-s could not Ite elaimed
tor subordinate officers, especially for thost; who are citizens or subjects
of the foreign state. The jurisdiction allowed to consuls in civilized
countries over disputes between their countrymen is voluntary and in
the nature of arbitration, and it relates more especially to matters of
trade and commerce. A consul is, however, under public law, .subject
to the payment of taxes and municipal imposts and duties on his prop-
erty in the country or on his trade, and generally to the civil and crimi-
nal jurisdiction of the country in which he resides. It is probable, if
he does not engage in business, and does not own real estate, that be
would not be subject to arrest or incarceration except on a criminal
charge, and in the case of a commission of a crime he may either be
punished by the local laws or sent back to his own country. In the
absence of a diplomatic representative, a consul doubtless has the right
of access to the authorities of the state in all matters appertaining to
his office.

" The privileges of a consul who engages in business in the country of
his official residence are, under international law, more restricted, es-
pecially if he is a subject or citizen of the foreign state. If his exequa-
tur has been granted without limitations, he may claim the privileges
and exemptions that are necessary to the performance of the duties of
the office ; but in all that concerns his personal status or his status as
a merchant, it is doubtful that he can claim any rights or ])rivileges not
conceded to other subjects or citizens of the state.

" In Mohammedan and semi-civilized countries the rights of extrater-
ritoriality have been largely preserved, and have generally been con-
firmed by treaties to consular officers. To a great degree they enjoy
the immunities of diplomatic representatives, besides certain preroga-
tives of jurisdiction, together with the right of worship, and, to some
extent, the right of asylum.

"These immunities extend to an exemption from both the civil and
criminal jurisdiction of the country to which they are sent, and protect
their household and the effects covered by the consular residence.
Their personal property is exemi)t from taxation, though it may be
otherwise with real estate or movables not connected with the consul-
ate. Generally they are exempt from all personal impositions that
arise from the character or quality of a subject or citizen of the country.

" The consular jurisdiction in these countries is both civil and <uimi-
nal, and has in most cases been provided for by the stipulations of
treaties. The extent of its exercise, as well as the penalties and i>un-
ishments to be enforced, depend generally ui)on the hiws of his own
country to the exclusion of the jurisdiction of all local tribunals.

"Consuls have no claim, under international law, to any foreign cere-
monial, and no right of precedence except among themselves, and in
their relation to the military and naval officers of their own country.
This precedence, as to officers of the same grade in the consular body
of the place, depends upon the date of the respective execpiaturs.

"Consuls must bear in mind that in the following abstfact it is im-
possible to do more than allude in a general way to the rights and priv-
leges secured by treaties. The several consular treaties and conven-
tions with other powers may be found in Api)endix No. 1, and in each
case the consul must look there for more detailed information. It is
also possible that more extended rights may have been granted to con-
suls of other nations, and that the officers of the United States may be
entitled to claim them under the clause known as ' the most favored

789

§ 121.] CONSULS. [chap. v.

iiatiou clause,' iu a treaty with the Uuited States. This right is secured
by treaties with the Argentine Coufederatiou, xlustria-Huugary, Bolivia,
Colombia, Costa E,ica, the Domiiiicau llepublic, Denmark, Ecuador,
France, Germany, Hawaiian Inlands, Hayti, Honduras, Italy, Mada-
gascar, Morocco, Mexico, Nicaragua, Netherlands (and colonies), Orange
Free State, Paraguay, Persia, Peru, Portugal, Prussia, Russia, San
Salvador, Spain, Swiss Confederation, and Tripoli. The Department
must necessarily trust to the discretion of the consul on the one hand,
not* to permit his rights to be invaded without i^rotest, nor, on the other
liand. to claim what he cannot maintain. If the rights thus secured by
treaty are in any case invaded or violated the consul will at once com-
pUiin to the local authorities, to the Department, and to his immediate
superior. These complaints should set forth in full all the facts show-
ing the invasion or violation.

" Inviolability of the archives and papers of the consulate ' is secured
by treaties with Austria-Hungary, Argentine Confederation, Bolivia,
Belgium, Colombia, Denmark, Dominican Republic, Ecuador, France,
Germany, Greece, Hayti, Mexico, the Netherlands (and colonies), Orange
Free State, Peru, Portugal, Salvador, Sweden and Norway, Switzer-
land, Muscat, and New Grenada.'

" Inviolability of the consular office and dwelling ' is secured by treaties
with Belgium, Bolivia, France, Germany (of consuls not citizens), Italy,
Muscat, and Salvador; ' but the dwelling cannot be used as an asylum.
It is agreed with Colombia that the persons and dwellings of consuls are
to be subject to the laws of the country, except as specially exempted
by treaty. The consulates iu Germany are not to be made asylums for
the subjects of other powers."

U. S. Cons. Eeg., 1881, §§ lb,ff.

"The right in such case (of infraction of treaties) to correspond with
the local authorities is secured by conventions with Austria-Hungary,
Belgium, Colombia, France, Germany. Italy, Netherlands (and colonies),
and Salvador; and in case the local authorities fail to give redress, and
there be no diplomatic representative, they may apply to the Govern-
ment.

"The right to place the national arms and the name of the consulate
on the offices is given by treaties Avith Austria Hungary and the Nether-
lands. (and colonies); on their offices or dwellings by treaty with Bel-
gium and Germany; the right to place the national flag on their dwell-
ings, except where there is a legation, by treaties with Austria-Hungary,
Belgium, and Germany: the right to place the arms, name, and flagon
their offices or dwellings by treaties with France and Salvador; and on
their offices by treaty with Italy; and the right to place the name and
flag on their dwellings by treaty with Colombia.

"The right to take depositions is secured by conventions with Austria-
Hungary, Belgium, France, Germany, Italy, Netherlands, New Granada,
and Salvador. Objection has been raised by the German Government
to the taking of testimony by consular officers of the United States in
Germany, except as provided for by Article IX of the treaty of 1871."

In certain treaties it is provided that requisitions for surrender of
fugitives maj' be made by consular officers in absence of diplomatic rep-
resentatives.
lUd., ^^l.

790

CHAP, v.] RIGHT TO GIVE ASYLUM AND PROTECTION. [§ 122.

The consular regulations of the United States, ISSI, (•(•iitain artich's
on the following additional topics :

Relations of consular officers to the diplomatic; icpnstMitativcs of the I mini States.

Relations of consular officers to naval officers of the United States.

Formalities to be observed on arrival at post.

Conespondence of consular otHcers with the Department of State.

Passports and protection of citizens of the United States.

Reciprocal duties of consular officers and masters of American ves-sids, including
the shipment of seamen.

American seamen ; discharge of seamen.

Arrears of wages and extra wages.

Relief of seamen.

Transportation of seamen.

Desertion of seamen.

Disynites between masters, officers, and crews.

Wrecked and stranded vessels and surveys.

Dutiesof consular officers in respect to American or foreign built vessels transferred
to citizens of the United States within their jurisdiction.

Duties as to American vessels engaged in the transportation of Chinese and other
emigrants.

Miscellaneous duties in regard to seamen and vessels of the United States and immi-
gration ; manifests ; the national board of health and bills of health ; protests ; mutiny
and insubordination, and the transportation of persons charged with crimes against
the United States ; deportation of paupers and criminals to the United States ; Mor-
mon emigrants ; emigration passenger law ; miscellaneous duties.

Estates of citizens and seamen dying without the United States.

Miscellaneous instructions; marriages; extradition of fugitive criminals; taxes;
recommendations for office ; public speeches ; correspondence with the press; permis-
sion to trade ; official correspondence and bearing abroad ; precedence of consular (illi-
cers ; new inventions, discoveries, «fec. ; information as to light-houses, buoys, .shoals,
&e. ; importation of neat cattle and hides; abuse of Government pouches ; vcrilica-
tion of j>owers to transfer United States stock; letters uncalled for; letters dotaincd
at foreign ports ; presents and testimonials from foreign powers; consular uniform ;
consular officers acting for foreign states.

Duties towards American citizens; register of American citizens; annual report of
marriages; laws respecting majority, marriage, and letters rogatory; examination of
title and other unofficial services; notarial acts.

X. RIGHT TO GIVE ASYLUM AND PROTECTION.

§ 122.

The immunities of consuls in this relation are discussed in connection
with those of diplomatic agents, ««i)m, § 104.

"Abuses which have heretofore occurred in granting protection from
the local authorities in eastern countries, and esi>ecially in the Turkish
dominions, to persons who, in the opinion of this Department, had no
claim thereto, render it advisable that the legations and consulates in
that quarter should, once in six months, report the nund)er, names, and
occupations of the persons to whom, during the six months prece«ling,
such protection may have been given, or by whom it may have been
claimed. Such report will in future be expected to be made at the be-
ginning of every January and July. It is believed that sound policy

791

^ 123.] CONSULS. [chap. v.

dictates the utmost scrutiny and caution in extending the protection of
this Government to any persons abroad who may not be citizens of the
United States. Should that policy be adopted and scrupulously ad-
hered to, those to whom protection may really be due may expect it to
be efficient. Such protections should in no event be issued to aliens
who are not actually in discharge of official duty under the direction of
the respective consuls, or employed in their domestic service. In no
case should they be granted where they will operate to screen the
holder from prosecution for offenses against the laws of the country, or
where reasonable ground exists for objection by the Government. No
instrument in the nature of a passport should be issued to persons thus
protected ; it will be sufficient to grant, when necessary, a consular cer-
tificate setting forth the relation and duties in connection with the con-
sulate.

" Eequests have occasionally been made upon the Government of the
United States to permit its diplomatic and consular officers to extend
their protection to citizens or subjects of a foreign Government who
may desire it and who may be sojourning at places where there are no
diplomatic or consular representatives of that Government. This Gov-
ernment has from time to time, upon the request of friendlj^ powers,
given to its diplomatic and consular officers authority to take upon
themselves, with the consent of the Government within whose juris-
diction they reside, the function of representing those powers at places
where the latter had no such officers. It has understood this authority
to be restricted simply to the granting of the services and good offices
of our representatives, with their own consent, to meet what has ordi-
narily been a fortuitous and temporary exigency of the friendly Gov-
ernment. When this function is accepted, which must be done only
with the approval of the Department of State, the diplomatic or con-
sular officer becomes the agent of the foreign Government as to the
duties he may perform for its citizens or subjects ; he becomes responsi-
ble to it for liis discharge of those duties, and that Government is alone
responsible for his acts in relation thereto. He does not, however, for
this purpose become a diplomatic or consular officer of the foreign
Government."

U. S. Cons. Reg., 1881, U 175, /.

XI. BUSINESS RELATIONS OF.

§ 123.

An arbitrary refusal of the Spanish consul at Kew York to authenti-
cate the signature of the Secretary of State, " an act appropriately be-
longing to the consular functions," on the ground that " he or his Gov-
ernment had conceived some displeasure towards the persons who have
executed some of the papers accompanying the signature of the Secre-
tary," is in contravention of international law and practice.

Mr. Marcy, Sec. of State, to Mr. Magallon, Jan. 19, 1854. MSS. Notes, Spain.
As to duties of consuls acting as administrators of citizens dying in foreign
lands, see Mr. Marcy, Sec. of State, to Mr. Aspinwall, Aug.. 21, 1855, cited
supra, § 121 ; Mr. Cadwalader, Acting Sec. of State, to Mr. Chadwick, Aug.
19, 1875 ; Mr. Cadwalader to Mrs. Hopkins, Mar. 27, 187G, ibid.
For report as to consular officers engaged in business in violation of law, see
House Ex. Doc. 90, 35th Cong., 2d sess.

792

CHAP, v.] BUSINESS RELATIONS OF. [^ 123.

The einployinent of lueichauts as cousuls is sustaiiicd not. only by
policy and expediency, but by the practice of all maritime powers.

Mr. Seward, Sec. of State, to Mr. Burlingamo, Fob. 4, 1863; MSS. IiiHt., China.

Same to same, Mar. 3, 1863 ; ibid.
As to acknowledgment of papers before consuls, see Mr. Fish, Sec. of State, to

Mr. Weeks, .Jan. 21, 187i>, cited ««;;»•«, $ 121.
That the consul's bond does not cover mismanat^ement by him in unoOicial buMi-

uess relations, see Mr. Davis to Mr. Marvin, Mar. 5, 1873, cited nupra,

$ 121.

" Under long-establisbed regulations the services of the diph)inatic
or consular officers of the Government cannot be claimed by private
persons in such matters as you refer to. No objection will be made l)y
the Department should any consular officer of the United States be
willing to lend his services to you in such a matter. Such services
would be personal and not official, and he would be entitled as any
other person employed to i)roper compensation, which matter of com-
pensation, and as to any expenses, should be arranged when api)lica-
tion is made to him."

Mr. Cadwalader, Asst. Sec. of State, to Mr. Davis, Mar. 11, 187.5. MSS. Dom.

Let.

Consular officers abroad, undertaking private business on behalf of
citizens of the United States, do so, not as representatives of the De-
partment of State, but as private agents of their employers, whom they
are at liberty to serve in matters not conflicting with consular duty.

Mr. F. W. Seward, Asst. Sec. of State, to Mr. Schoenberger, Dec. 2, lo78 ; Mr.
Evarts, Sec. of State, to Mr. Downey, July 12, 1879. MSS. Dom. Let.

" It is no part of the duty of diplomatic or consular officers to attend
to the prosecution of private claims of American citizens in foreign
countries, especially when the courts of justice are open to them."
Mr. Evarts, Sec. of State, to Mr. Yoder, May 21, 1880. MSS. Dom. Let.

" It is entirely a matter of their owu volition, and not only is it proper
that all expenses to which they may be put should be provided for, but
this Department has moreover allowed them to charge a reasonable fee
for their services." If payment of such expenses is refused, the De-
partment will direct the attention of the delinquent parties to be called
to such refusal.

Mr. Evarts, Sec. of State, to clerk of Peoria court, May 15, 1880. MSS. Dom.
Let. See Mr. Hunter, Second Asst. Sec. of State, to Mr. Diller, Apr. 28,
1861; ibid.

" United States consuls in foreign countries, and especially in the East
(China and Japan), are allowed and instructed to act for citizens of the
United States in regard to their private matters, and to give thejn
advice as to the settlement of controversies between themselves or be-
tweei^ them and the citizens or subjects of any other Cioveriiiin-Mt

793

§ 123.] CONSULS. [chap. v.

residing in the country of the consul's otiicial residence, when called
upon to do so by such American citizens, and when a consular officer
can do this without prejudice to the due discharge of his official duties.
The paragraphs of the regulations to which you refer are simply in-
tended to impress upon the consul more earnestly his obligations to his
countrymen in this regard."

• Mr. Davis, Asst. Sec. of State, to Mr. Weiller, Feb. 20, 1884. MSS. Dotn. Let.

" I have received your No. 902, of the 18th ultimo, in the matter of
the arrest of Mr. John Dalton, United States consul at Oiudad Bolivar,
by order of the President of Venezula, and have to approve your re-
quest of Mr. Dalton to be immediately furnished with full particulars
in the premises.

" My instruction No. 294, of the 7th instant, will have shown you the
action thus far taken with Mr. Soteldo, the Venezuelan minister here,
in regard to the case. You will have observed from that instruction
the Department's intention to await details before formulating a spe-
cific complaint.

" Mr. Dalton belongs to a class of consuls authorized to transact busi-
ness. If he does, he is for all purposes of such business subject to the
same treatment as any other American resident engaged in trade in
Venezuela. He is manifestly subject to no less favorable treatment,
although he may have no specific personal exemptions or privileges by
reason of his ofSce. But if he, a consul, has been subjected to treatment
to which no American citizen under the treaty can be, that is, to impris-
onment in virtue of an executive order without trial or opportunity for
legal defense, then the fact of his being known as the representative of
a friendly power might be deemed to aggravate the injury committed.

"You should lose no time in sending hither copies of all documents,
the petition, the order of arrest, the correspondence between yourself,
the Venezuelan Government, and Mr. Dalton, and any other informa-
tion bearing upon the case, in order that the Department may give to
it a full and impartial consideration."

Mr. Frelinghuysen, Sec. of State, to Mr. Baker, May 12, 1884. MSS. Inst.,
Veuez.

" In reply to the suggestion contained in yours of the 13th instant,
that iustructions be made to consuls regarding inquiries on the financial
standing of foreign individuals and firms, I would say that such a mat-
ter does not come within the proper functions of the Department.
While endeavoring to meet all demands made upon it in the interest of
manufacturers and merchants of the United States, it could not under-
take to give the information you ask for, nor could it impose such a
task upon consuls without injury to the public service. To pass upon
the solvency of a firm or an individual is, under any circumstances, a
matter of great difficulty, involving many delicate considerations,
which it is impossible for a consul, having so many other duties inci-
794

CHAP, v.] JURISDICTION OF SEAMEN AND SHIPPING. [§ 124.

(lent to hi« office, to duly woi;,'li and so to arrive at a conclusion that
will be just to the person makinjL? the inquiry as to the firm or indi-
vidual in question."

Mr. Porter, Acting Sec. of State, to Messrs. Stearns & Co., Jan. lit, im\. MSS.
Dom. Let.

A consul, thouo-h a public agent, is clothed with authority only for
commercial purposes. Be has a right to interpose claims for the resti-
tution of property belonging to subjects of his own country, but it is
not competent for him, without the si^ecial authority of his Govern-
ment, to interpose a claim on account of the violation of the territorial
jurisdiction of his country.
The Anne, :5 Wheat., 4:?;').

In the absence of specific powers bestowed by competent authority,
a consul has no right to receive the proceeds of property libeled au«l
transferred into the registry of the court.
The Bello Corrunes, 6 Wheat., 152.

A trading consul, in all that concerns his trade, is liable in the same
way as a native merchant. The character of consul does not give any
protection to that of merchant, when they are united in the same person.

Coppell V. Hull, 7 Wall.. 542; supra, $ 121.

" In Austria-Hungary, Belgium, Germany, Italy, and the Nertherlands
(and colonies), the local authorities are required to inform consuls of the
death of their countrymen, intestate, or without known heirs. In (ler-
many, consuls have the right toai)pear for absent heirs or creditors until
regularly authorized rei)resentatives appear. In Peru, Salvador, Tunis,
Morocco, Muscat, Persia, and Tripoli, they may administer on the i)rop-
erty of their deceased countrymen. In Colombia they may do so, ex-
ce])t where legislation forbids it. In Costa Rica, Honduras, and Nicara-
gua, they may nominate curators to take charge of such property, as
far as local laws permit. In Paraguay they may become temporary
custodians of such ])roperty. [n Germany they may take charge of the
efl'ects of deceased sailors."

U. S. Cons. Reg., 1381, § 97.

XII. PORT JURISDICTION OF SEAMEN AND SHIPPING.

§ 124.

As to subjection of merchant vessels to law of port, see supra § 35.

"The United States and France have, by their consular convention,
given mutually to their consuls jurisdiction in certain cases especially
enumerated. But that convention gives to neither the power of estab-
lishing complete courts of admiralty within the territory of the other,
nor even of deciding the particular question of prize or no prize."

Mr. Jeflferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst.. Minis-
ters; 4 Jefferson's Works, 31.
As to consular jurisdiction in Oriental ports, see infra, ^ 125 ; supra, ^ 35, 35a.

796

§ 124.1 CONSULS. [chap. v.

Foreign coiisuhs cannot exercise admiralty jurisdiction in the United
States, except by force of a treaty.
Glass V. The Sloop Betsey, 3 Dull., 6.

The right given to seamen by Revised Statutes, section 4567, to lay
their complaints before the American consul in foreign ports, is one
vrhich a court of admiralty will carefully protect.
Morris v. Cornell, 1 Sprague, 62 ; itifra, $ 125.

Where a minor, having concealed himself, without the knowledge of
his father, on board of a whaling-ship, and not being discovered until the
vessel was at sea, being then left by the master in the care of the Amer-
ican consul at the first port at which he touched, it was held to be the
duty of the consul to provide for and send him home to the United
States. •

Luscoui V. Osgood, 1 Sprague, 82.

The advice of a consul, in a foreign port, gives to the master of a
vessel no justification for an illegal act.

Wilsou V. The Mary, Gilpin, 33.

The consul, where a seaman is entitled to the privileges of an Ameri-
can seaman, and is destitute, is the proper judge as to the ship on
board of which he should be placed for his return to the United States.
Matthews v. Offley, 3 Sumner, 115.

A consul cannot detain seamen in prison as a punishment, after he
has discharged them from their contract at the request of the master.
Jordan r. Williams, 1 Curtis, 69.

The action of a consul in discharging a seaman in a foreign port is
not conclusive where a libel is filed for wages.

Canpbell v. The Uncle Sam, McAllister, 77.

Notwithstanding the Eevised Statutes, section 4576, and section 8 of
act of 1840 (5 Stat., 395), requiring masters of American vessels to give
bond for the return of all the crew, unless discharged in a foreign coun-
try with consent of a consul, these sections, construed with the aid of
the other parts of these statutes, do not require a master to return to
the United States foreign seamen shipped at their own home, for a par-
ticular cruise, ending where it began, and discharged there according
to the terms of their contract, though without the consent of a consul.
The consent of a consul could not be rightly withheld in such a case,
and there is no law requiring it to be asked.
U. S. I". Parsons, 1 Lowell, 107.

Under sec. 20, act June 26, 1884, amending Eev. Stat., § 4576, a mas-
ter may make a contract with seamen providing for their discharge
abroad without being required to pay extra wages on such discharge.

796

CHAP. V.J .JURISDICTION OF SEAMEN AND SlllI'l'INO. [§ 124.

Seamen left behind in a foreign coiintiy on acc-oiuit ol' inahiliiy, t'roia
sickness, to return in the vessel in which they went out, are within the
provisions of the act of February 28, ISO.i, snpijlcnientary to the act
concerning consuls, and for tliem the master should <l(*i)osit with the
consul three months' pay over wages, &c., as in other cases of vohiii
tary discharge.

1 Op., 593, Wirt, 1823.

Under act of June 26, 1884, but one month's extra wages can be
exacted in this or any other case.

Consular jurisdiction depends on the general law of nations, existing
treaties between the two Governments affected by if, and upon the
obligatory force and activity of the rule of reciprocity. French con-
sular jurisdiction in an American port depends on the correct interpre-
tation of the treaties existing between France and the United States,
which limit it to the exercise of police over French vessels, and juris-
diction in civil matters in all disputes which may arise; and provide
that such police shall be confined to the interior of the vessels, and
shall not interfere with the police of our ports where the vessels
shall be. They also provide that in cases of crimes and breaches of
the peace the offenders shall be amenable to the judges of the country.
The claim of the French envoy for the exercise of judicial jjower by
the consul of his Government in the port of Savannah is not warranted
by any existing treaties, nor by a rule of reciprocity which the Execu-
tive has power to permit to be exercised. " The juinciples of interna-
tional law, as they are recognized in Europe, afford no warrant for the
exercise of judicial power by consuls ; and the rights and duties of
these functionaries depend, both for their authority and extent, upon
the treaties subsisting between the Governments resi)ectively inteV-
changing this species of commercial agents."

2 Op., 381, Berrien, 1830. See Mr. Van Buren to Mr. K«iix do Kochellf, .Ian. -'7,

1831. MSS. Notes, For. Leg.

The powers and duties of American consuls as to seamen's wages are
confined to vessels owned by citizens of the Tnited States, and consti-
tuting a part of our mercantile marine by sailing under our Hag.
2 Op., 448, Berrien, 1831.

Masters of American vessels entering foreign ports where there is
an American consul, and remaining so long that, by the local regida-
tions, they are required to enter and afterward to clear in regular form,
are required to deposit their registers, &c., with such consul, irresjiect-
ive of the purpose for which the port was entered.

.^> Oi)., Ifil, .Joliuson, 1S4'J.
In order that the master of a ship on her '• arrival '' in a foreign port
shall be compellable to deposit the shii)'s i)ai)ers with the consul, the
arrival must be such an one as involves entry and clearance.

6 Op., 163, Cashing, 1853. 797

§ 124.] CONSULS. [chap. v.

Consuls have no authority to order the sale of a ship in a foreign port,
either on complaint of the crew or otherwise. If, on such sale, the con-
sul retain the money for the payment of seamen's wages, the United
States are not liable to the owners for the money thus illegally received
by the consul.

6 Op., 617, Cashing, 1854.

Masters of American vessels are subject to prosecution in the name of
the consul for omission to deposit with him the papers according to law,
but not to indictment. (2 Stat., 203, § 2 ; Eev. Stat., § 4309.)

7 Op., 395, Gushing, 1855.

American consuls have no authority to require masters of American
vessels to take on board, and convey to the United States for trial, jjer-
sons accused of crime.

7 Op., 722, Cushing, 1856.

The authority of consuls of the United States in foreign countries, in
cases of crime at sea or in port, is ministerial only, and not judicial.

8 Op., 380, Cushing, 1857.

The commander of an American vessel is required to deliver his regis-
ter and other ship's papers to the consul at a foreign port only in cases
where he is compelled to make an entry at the custom-house.

9 Op., 256, Black, 1858.

Under the 28th section of the act of August 18, 1856, consuls have the
authority to enforce the payment of wages in certain cases and consular
fees, but not a general power of deciding upon all manner of disputed
claims and demands against United States vessels. By the act of 1803
th,e consul is made the party to bring suit for penalties incurred under
it, but not the judge to decide it. He cannot demand the penalty, decree
it to be due, and enforce its payment by detaining the ship's jjapers.

9 Op., 384, Black, 1859.

A consul of the United States in a foreign port has no power to retain
the papers of vessels which he may suspect are destined for the slave
trade.

9 0])., 426, Black, 1859.

The master of an American vessel sailing to or between ports in the
British North American provinces is required, on arriving at any such
port, to deposit his ship's papers with the American consul.

The act of 1861 (12 Stat., 315 ; Eev. Stat., § 4309) does not change or
aflect the duties of masters of American vessels running regularly by
weeklj^ or monthly trips or otherwise between foreign ports, as im-
posed by act of 1803 (2 Stat., 203; Rev. Stat., § 4309).

If an American vessel is obliged by the law or usage prevailing at a
foreign port to effect an entry, and she does enter conformably to the
798

CHAP, v.] JUKISDICTION OF SEAMEN AND .SHIPPING [§ 124

local law 01- usage, her couiiug to .such roieij;ii povi aiiiouiits lo an
"arrival" within the meaning of section 13 of act of 1.S03, independ-
ently of any ulterior destination of the vessel or the time she may re-
in }i,m, or intend to remain, at such port, or the particular business she
may transact there.

11 Op., 73, Bates, 1866.

The cousul of the United States at Ilonolulu has the right and i».>\\»-r.
without interference from the local courts, to determine questions :is be-
tween citizens of the United States, who comprise the crew of an Amci-
icau vessel, and are bound to fulfill the obligations imposed by the shii*-
ping articles.

11 Op., 508, Speed, 1866.

A consul of the United States has no authority to demand and re-
ceive from the master of a vessel the money and effects belonging ro a
deserter from the vessel.

14 Op., 520, Williams, 1875.

The right " to sit as judges and arbitrators in such ditibrences as may
arise between the captains and crews," given to consuls, vice-consuls,
&c., by article 13 of the treaty with Sweden and Norway of 18J7, is
limited to cases of a civil nature, and does not extend to public offenses.
By said article the right of interference is expressly given to the locid
authorities where the differences between the captains and crews are
such as to ''disturb the order or tranquillity of the country," whi<*,li in-
cludes all acts against each other amounting to actual breach<'s oi" the
public peace.

It seems that a more enlarged jurisdiction is conferred uj)on consuls
in some other treaties, as e. g., in the treaty with France of Fci)ruary
23, 1853; in that with the German Empire of December 11, 1871 ; in
that with Italy of February 8, 1868.

15 Op., 178, Tail, 1876.

"Exclusive jurisdiction over such disputes (between masters, olliccrs.
and crews) in the vessels of the United States, including (pu'stioiis of
wages, is conferred by treaties or conventions with Austria-Ilungwry,
Belgium, Colombia, Denmark, Dominican Kei)ublic, France, Germany,
Greece, Italy, the Netherlands (and the colonies), Portugal, Kussia, S;il-
vador, Sweden and Norway, and Tripoli."
U. S. Cons. Reg., 1881, ^ 93.

A right to reclaim deserters from the vessels of the United States is
conferred by certain other treaties.

lUd., § 94.

By other treaties the right to adjust damages snlifered at sea is gixcn.

IMd., $ 95.

799

§ 124.] CONSULS. [chap. v.

" The act to enforce treaty provisioDS lesijectiug disputes between
masters and crews was approved June 11, 1864. (13 Stat. L., 121.) It
is not to take effect as to the ships or vessels of any nation, unless the
President shall have been satisfied that similar provisions have been
made by the other contracting party for the execution of the treaty, and
shall have issued his proclamation to that effect. Ou the 10th of Feb-
ruary, 1870, proclamation was made under this act as to the treaties with
France, Prussia, ^nd the other states of the North German Union and
Italy (9 Op., 96), and on the 11th of May, 1872, as to the treaty with
Sweden and Norway. (13 Stat. L., 121.)

"This statute authorizes any court of record of the United States, or
auj' judge thereof, or any commissioner appointed under the laws of the
United States to take bail or affidavits, or for other judicial purposes
whatsoever, to receive the api)lication of the consular officer, to issue
process against the person comjilained of, and if it shall appear, on
his being returned before the magistrate, that he is not a citizen of the
United States, and if a prima facie case shall be made out that the
matter concerns only the internal order and discipline or the foreign
vessel, and does not affect directly the laws of the United States or the
rights and duties of any citizen, then the magistrate shall commit the sea-
man to prison to abide the lawful order or control of the master; provided
the expenses of the proceedings shall be paid by the consular officer,
and the seaman shall not be detained for more than two months after
his arrest.

" The statute respecting the restoration of deserters was approved
March 2, 1829, and was entitled 'An act to provide for the apprehension
and delivery of deserters from certain foreign vessels in the ports of the
United States.' (4 Stat. L., 359.) It provides ' that on application of
a consul or vice-consul of any foreign Government, having a treaty with
the United States stipulating for the restoration of seamen deserting,
made in writing, stating that the person therein named has deserted
from a vessel of any such Government while in any port of the United
States ; and on proof by the exhibition of the register of the vessel, ship's
roll, or other official document, that the i)erson named belonged at the
time of desertion to the crew of said vessel, it shall be the duty of any
court, judge, justice, or other magistrate having competent power, to
issue warrants to cause the said person to be arrested for examination,
and if, on examination, the facts stated are found to be true, the person
arrested not being a citizen of the United States, shall be delivered up
to the said consul or vice-consul to be sent back,' etc.

Mr. J. C. B. Davis, Notes, &c.

Some of the above provisions are modified by the act of June 26,
1884, to which attention is again called.

The act of June 26, 1884, provides as follows :

Sec. ii. That section forty-five hundred and eighty-two of the Kevi.sed Statutes be
amended so as to read as follows :

''Sec. 4582. Whenever a vessel of the United States is sold in a foi'eign country,
and her company discharged, it shall be the duty of the master to produce to the con-
sular oflQcer the certified list of his ship's company, and also the shipping articles, and
to pay To said consular officer for every seaman so discharj»ed one month's wages over
and above the wages which may then be due to such seaman; but in case the master
of the vessel so sold shall, with the assent of said seaman, provide him with adequate
employment on board some other vessel bound to the port at which he was originally
shipp<'d, or to such other port as may be agreed upon by him, then no payment of
extra wages shall be required."

800

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [§ 125.

Sec. 6. That sectiou forty six hundred of the Revised Statutes be amended so a» to
read as follows:

"Sec. 4(300. It shall be the duty of consular officers to reclaiui deserters and di»-
conntenauce insubordination by every means within their power, and where the local
authorities can be usefully employed for that purpose, t<» l<-nd tlit-ir aid and us«! their
exertions to that end in the moat etlectual manner. In all cast-s when- ilexert<-rs are
apprehended the consular officer shall inrpiire into the facts; and if he is satisfied
that the desertion was caused by unusual or cruel treatment, In- shall discharge the
seaman, and require the master of the vessel from which such M'aman is discharged
to pay one month's wages over and al)Ovo the wages then due; and f lie <)lh<<r dis-
charging such seaman shall enter upon the crew-list and shipping articles the cause
of discharge, and the particulars in which the cruelty or unusual treatment consi.sted,
and the facts as to his discharge or re engagement, as the case may be, and subscribe
his name thereto otiicially."

Skc. 7. That section forty-five hundred and eighty-one of the Revised Statutes b«
amended so as to read as follows:

"Sec 4."ibl. If any consular officer, when discharging any seam.'in, shall neglect to
require the payment of and collect the arrears of wages and extra wages refiuired to
be paid in the case of the discharge of any seaman, he shall be accountable to the
United States to the full amount thereof. If any seaman, after his discharge, shill
have incurred any expense for board or other necessaries at the place of his discharge,
Ijefore shipping again, or for transportation to the United States, such expt-nse shall
be paid out of the arrears of wages and extra wages received by the consular officer,
which shall be retained for that purpose and the balance only pai<i over to such sea-
men.'"

"Skc. 8. That section forty-five hundred and eighty-fonr of the Revised Statutes
be hereby repealed."

Sec. 9. That section forty-five hundred and seventy-eight of the Revised Statutes
be amended so as to read as follows:

"Sec. 4.'J78. All masters of vessels of the United States, and bound to some port of
the same, are required to take such destitute seamen on board their vessels, at the
request of censular officers, and to trau.sport them to the port in the United States to
which such vessel may be bound, on such terms, not exceeding ten dollars for each
person for voyages of not more than thirty days, and not exceeding twenty dollars
tor each person for longer voyages, as may be agreed between the m:ister and the
consular officer; and said consular officer shall issue certilicates for sncii transporta-
tion, which certificates shall be assignable for collecti6n. If any such destitute sea-
man is 80 disabled or ill as to be unable to perform duly, the consular officer shall .so
certify in the certificate of transportation, and such additional coni]>ensaiion shall be
paid as the First Comptroller of the Treasury shall deem proper. Every such master
who refuses to receive and transjiort such seamen on the request or order (»f such con-
sular officer shall be liable to the United States in a penalty of one hundred dollars
for each seaman so refused. The certificate of any such consular officer, given under
his hand and official seal, shall be presumptive evidence of such retu-al in any court
of law having jurisdicti<m for the recovery of the penalty. No master of any vessel
shall, however, be obliged to take a greater number than one man to every cue hun-
dred tons burden of the vessel on any one voyage."

XIII. JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS.

§ 125.

The judicial functions of consuls and of diplomatic a<;ents are pri-
marily determined by statutes and treaties, which it does not fall within
the range of the present work to reproduce. This digest i.s routined to
the rulings of the executive and of the courts in thi.s relation.

"Another series of treaties grants to the consuls of the United States
in the territories of certain Oriental power.s, excluhive jurisdietion over
disputes between citizens of the United States, or over oflen.ses com-
mitted by citizens of the U'nited Srates, or both.

" The first statute to atlirm and regulate tiiis jurisdiction was approved
on the 11th of August, 1848. (1> Stat. L., 270.) Attorney-Geneuil
Cnshing gave an exhaustive opinion on this statute (hereafter quoted).
In 1860 a new statute was passed, which was amended in 1870. (12 Stat.

S. Mis. IGL'— VOL. I .-.1 ^^

§ 125.] CONSULS. [chap. v.

L., 72.) Under tliese various statutes the following is the pn sent con-
dition of the law and practice in this respect:

''The consuls and coiuniercial agents of the United States iit islands
or in countries not inhabited by any civilized people, or recognized by
any treaty of the United States, are invested with ])Ower to hear and
determine cases in regard to civil rights where the debt or damage does
not exceed $1,000 exclusive of costs; and also toissue warrants to arrest
offenders, to arraign, try, and convict them, and to punish them to the
extent of $100 fine or to imi)risonmeut not to exceed sixty days.

" The i)rovisions of the statute of 1800 ai)ply directly to the consu-
lates in China, Japan, and Siara. They apply in terms to Turkey (see
section 21 of the act of 1800), so far as they relate to crimes and offenses,
and as to civil cases so fur as the laws of Turkey permit.

"The authenticity of the English version of the treaty of 1830 with
Turkey, under which exterritorial rights had been claimed and allowed,
has been recently questioned. The present attitude of the question is
set forth in the note entitled ' Ottoman Porte.'

"The operation of the statute of 1860 is extended (§ 28) to Persia, to
Tripoli, Tunis, Morocco, and Muscat (§ 29), to Egypt (14 Stat. L., 322)
and all other countries with which treaties may hereafter be made (16
Stat. L., 183).

"The jurisdiction is to be exercised in conformity with, 1st, the laws
of the United States; 2d, with the common law, including equity and
admiralty; and, 3d, with decrees and regulations, having the force
of law, made by the ministers of tlie United States in such country
respectively, to supply defects and deiiciencies in the laws of the United
States, or the common law as above defined.

"This power of the ministers to make such laws and regulations is
limited, byinstructionsfrpm the Department of State, to acts necessary
to organize and give efficiency to the courts created by the act.

"Mr. Fish, on the 26th of February, 1873, instructed the minister at
Japan, on this subject thus : ' The authority of a minister, in an Oriental
country, to make regulations having the force of law within the country
to which he is accredited, is derived from the act of 1860, entitled "An
act to carry into effect i)rovisions of the treaties between the United
States, China, Japan, Siam, Persia, and other countries, giving certain
judicial powers to ministers and consuls, or other functionaries of the
United States in those countries, and for other purposes."

" 'The fir«t twenty-eight sections (except the 21st) relate to the treat-
ies referred to in the title. The remainder of the act refers to the
*' other purposes." Sections one, four, and five, therefore, relate exclu-
sively to the subject of carrying iuto effect treaty provisions conferring
judicial pon-c>'i^ o\\ ministers.

" 'The first section provides that 'to carry into full effect the provis-
ions of the trea*;ies, &c., * * * the ministers and the consuls of the
United States duly ai)p()inted to reside in each of the said countries
shall, in addition to other powers and duties imposed ui)on them, re-
spectively, by the i)rovisions of such treaty, respectively, be invested
with the judicial author it ij herein described. ^^

" 'The fourth section defines how those powers are to be exercised,
namely, in conlbrmity with the laws of the United States, "but in all
cases where such laws are not adapted to the object" (/. e., the exercise
of such judicial powers), "oi' are deficient in the provisions necessary to
furnish svitoble remedies, the common law, uK-kuting eijuity and admi-
ralty, shall be extended in like manner over such citizens and others in

802

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [yS I'iij.

the said countries ; and ifdofects still iviiiain to he snpplii'd, and neither
the coniniOM law. includinfi^ equity and admiralty, nor llic statutes of
the United States, /Wrw/.sA approiiriaic and suitable rmirtlirs, the minis-
ters in the sai<l counties, respectively, shall by (h-ciees an<l re;,ndations,
which shall have the Ibnte of law, supply sucii defect and octicieiicies."

"'The fifth section provides that "?/i order to orf/ttnize o)hI to cfirri/ into
effect the system of jurispnidencc iUnmw.dvd \)\ su(;h treaties respectively,
the said ministers, with the ad\i<'eof the s<'veral consids in each of the
said countries resi)ective!y, or so many of them as can i)e conveniently
assembled, shall prescribe the forms of all |»rocesses which shall be
issued by any of said consuls, and * * * make all siieh decrees
and regulations from time to tin)e as the exigencies may demantl ; and
all such regulations, decrees, and orders shall be ])lainly drawn up iu
writing, and submitted as above provided for the advice of the consuls,
or as many of them as can be consulted without i)rejudicial delay or
inconvenience, who shall each signify his assent or dissent in writing,
with his name subscribed theieto; and, after taking such advice and
considering the same, the minister m the said countries, respectively,
may, nevertheless, by causing the decree, ortler, or regulation to be pub-
lished, with his signature thereto, and the opinions of his advisors in-
scribed thereon, make it to become binding and obligatory until annulled
or modilied by Congress." * * *

•"It is the opinion of the Department that this statute confers upon
the minister in Japan no authority to make a regulation requiring citi-
zens of the United States to register their names, and no jiower to
enforce such a regulation judicially.

'"The authority conferred by the act is defined in the lirst section to
be a judicial authority. By the fourth section the minister is recpiired
to execute that power in conformity tcifh the lairs of ihc United States,
with authority to vary from those laws in two cases only : (1) Where
those laws are not adapted to the exercise of the judicial authority con-
ferred by section one; (2) Where they are deficient in the provisions to
furnish suitable remedies. In each of these contingencies the minister
has authority to make regulations in order ^' to furnish suitable aud appro-
priate remedies,^^ and for Jio other purpose whatever.

'"The fifth section is still more explicit on this jioint. Every power
named in this section is recited to be conferred upon the minister " m
order to organize and carry into effect asyston of jurisprudence.''"

"The jxnver of originating civil and criminal proceetlings is vested
by the statute in consular officers exclusively.

"They can also, sitting alone, determine all criminal cases where the
line imposed does not exceed live hundred dollars, or the term of im-
prisonment does not excee<l ninety days; and n>ay impose lines to the
extent of fifty dollars, or imprisonment, not exc«'eding twenty-four hours,
for contempt committed iu the presence of the court, or tor lailure to
obey a summons.

"They may also, when of opinion that legal (pu-stions may arise in
which assistance may be useful, or that a severer punishment is re(|uired,
summon associates, not more than four in number, taken by lot from a
list to be previously approved by the minister, to sit with them on the
trial, each of whoin is to enter upon the record his judgment and opin-
ion, and to sign the same; but the consul himself gives the judgment
in the case, whether it accords with that of his associates or not.

"In trials for capital oft'enses there must be lour associat(s. who must
all agree with the consul, in order to convict, and the opinion must be
approved by the minister before there can be a conviction.

803

§ 125.] CONSULS. [chap. v.

" Tbey have exclusive jurisdiction iu civil proceediugs wliere the dam-
age demanded does not exceed five hundred dolh.rs.

" When the amount demanded exceeds five hundred dollars, or when
the consul thinks the case involves legal perplexities, and that assist-
ance will be useful, he may summon to his aid not less than two nor
Djore than three associates, to be selected from a list of ])ersons nomi-
nated by the consul, for the purposes of the act, to the minister, ami a^)
proved by him. Tbey shall hear the case with him. The consul, how-
ever, is to give the judgment. If they agree with him, the judgment
is final. If they, or any of them, disagree, the opinions of all are to be
noted on the record and subscribed by them, and the judgment of the
consul is then subject to appeal.

"Such a consular court cannot, in a suit by a person not a citizen of
the United States, entertain a setolf further than to the extent of the
claim asserted by the plaintifl', and cannot rentier a judgment against a
person of foreign birth not a citizen of the Unite i States. (11 Op., 474,
Speed, cited ivfra.)

"An appeal njay be taken in criminal cases from a decision of a consul
acting al(Jne, where the fine exceeds one hundred dollars, or the time of
imprisonment for a misdemeanor exceeds ninety days.

"If associates sit with the consul in criminal proceedings (except
ca])ital), air a])peal can ])e taken to the minister only in case of disagree-
ment between him and one of his associates.

" In civil proceedings, in cases arising before the 1st day of July, 1870,
an appeal can only be taken to the minister from cases in which asso-
ciates sit with the consul, and in which there is not an agreement of
opinion.

"In cases arising after the 1st day of July, 1870, an appeal may be
taken to the minister from final judgment in the consular courts of China
and Japan, where the matter in dispute exceeds five hundred dollars,
but does not exceed two thousand five hundred dollars, exclusive of
costs ; and where the matter exceeds two thousand five hundred dollars,
exclusive of costs, the appeal may be taken to the circuit court for the
district of California.

"There are also regulations for appeals from the judgments of minis-
ters to the circuit court of California.

"In Tunis, Morocco, and Tripoli, citizens of the United States com-
mitting murder or houiicide upon a subject of tliose ])owers are to be
tried by a mixed court, at which the consul is to 'assist.'

"The undisputed portion of the fourth article of the treaty of 1830
with the Ottoman Porte provides for the sni)ervisiou of the A'Jierican
dragoman in the hearing of all litigations and dis])utes arising between
the subjects of the Sublime Porte and citizens ol the United States.

"It is not in dis])ute that the usages observed towards other Franks
are to be observed toward ci*:izens of the United States. These usages
are believed to be the following:

"1. Turkish tribunals for questions between subjects of the Porte
and foreign Christians.

"2. Consular courts for the business of each nation of foreign Chris-
tians.

" 3. Trial of questions between foreign Christians of different nations
in the consular court of the defendant's nation.

"4. Mixed tribunals of Turkish magistrates and foreign Christians
at length substituted in part for cases between Turks and foreign Chris-
tians.

804

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-('lVlLlZi:i) LANDS. [§ 125.

"5. Finally, for causes between lon-ij^iiCliiistiiiiis, the substitution at
length of mixed tribunals in i»la<;eot' the sei)arate (toiirts; this arraugo-
ment introduced at hist by the legations of Austria, (Ircai liritain,
France, and Kussia, and then tacitly acceded to by the legations of
other foreign Christians,

"A i)rovision in a treaty that a consul may exollicio iulminister iii>ou
the estates of citizens of his nationality «lying within his jurisdiction
without legal heirs there, gives no right of reclanialion against the
United States for the value of the i>ro])erty of such a decedent itiiprop-
erly administered on by a State court, unless the consul first exhausts
his remedies at law to i)revent such Stat<' adiuinislration."
Mr. .J. C. B. Davis. Notes, »S:t-.

'* I have to acknowledge the receii)t of your dispatch of tlie I'lst of
June last, No. 58.

'' The seventh article of the treaty with Jajian, of 1858 (11» Stat., 1507),
provides that certain persons convicted of felony, or twice convicted of
misdemeanor, shall lose their right of permanent residence in Japan,
and the Japanese authorities may require them to leave the country.
Our consular authorities are to determine a reasonable time lor the con-
vict to settle his affairs, not exceeding one year. When that time shall
expire, the convict becomes an outlaw, not entitled to any of the benetits
of our treaties with Japan. Such a state of circumstances, liowever, if
known, will be apt to induce the convict to avoid the i)osi(ion in which
the treaty between the two countries will have placed him. If he per-
sists in remaining, this Government cannot protect him against the con-
sequences of his own determination.

"Consular courts have arrogated to themselves the power of banish-
ing American convicts to the United States, and, as in the instance re-
ported by you, to China. This is a form of punishment not kiu)wn to
our law, and if it has been overlooked, it has not been approved by this
Department.

" The ])rinciples upon which we resist the deportation of foreign crim-
inals to the United States, and which may well esto}) us from .sending
American criminals to China, do not appear to aflbrd any reason why
we should not bring home, for punishment, our citizens who have been
guilty of crime upon the high seas, or in countries where we reserve the
jurisdiction for trial and punishment to our own tribuiuils.''

Mr. Fish, Sec. ofStatc, to Mr. De Loug, Sept. 10, 1870. MSS. lnt>t., Japan. For.
Rel., 1870.

" I acknowledge the receipt of your dispatches (No. 87) of Septeinber
19, 1870, and (No. 9G) of October 10, 1870 ; the first inclosing the origi-
nal manuscript, and the second a i)rinted coi>y of regulations for the
consular courts in Jai)an, made and promulgated by you with tiie a.sseiit
of our consular officers in that Kingdom.

" I regard the second section of the act of July 1, 1870 (Xew Consular
Regulations, page 273, No. 922), as intended to provide for the estab-

805

§ 125.] CONSULS. [chap. v.

lisliineut of regulations iu countries where we have no diplomatic rep-
reseutatives, aud shall therefore submit the regulations transmitted by
you to Congress for revision, without assuming for myself the power or
the duty of disjipproving or amending them. I, however, think it my
duty to call the attention of Congress to certain of the regulations which
may be thought to transcend the authority delegated to a minister, or
that of the Secretary of State, in countries to which no minister is ac-
credited.

'• The power conferred upon a minister by sections o and G of the act
of June 22, 1860 (New Consular Regulations, Nos. 839 and 840), has been
understood by this Department as confined to the course of jjrocedure
iu pursuing judicial remedies, aud us not extending to the creation of
new rights or duties in citizens of the United States, or to the modifica-
tion of personal rights and obligations under the existing law. You
have referred to the embarrassment arising from the absence of a com-
mon law of the United States, in their Federal character, and the diver-
sities between the common law, as adopted and interpreted by the sev-
eral States and as modified by their separate legislation.

" This difficulty is a necessary consequence of our complex system of
government. If it can be obviated at all, it is perhaps only by the opera-
tion on the part of Congress of a jurisdiction over citizens of the United
States residing in unchristian or imperfectly civilized lands, equivalent
to the plenary powers with which it is invested in the District of Colum-
bia and in the other Territories. This Department has been under the
impression that it would be most discreet to allow the anomalous juris-
diction of our consular courts in such countries to find its limits and
definition from the practical exigencies of administration and the acqui-
escence of the Governments within whose territory the jurisdiction is
exercised.

"A report made to Congress by ray predecessor, Mr. Seward (a copy
of which is inclosed), shows that it has been the habit of this Department
to regard the judicial power of our consular officers in Japan as resting
upon the assent of the Government of that Kingdom, whether expressed
by formal convention or by tacit acquiescence in the notorious practice
of the consular courts. In other words, they were esteemed somewhat
in the same light as they would have been if they were constituted by
the Mikado with American citizens as judges, and with all the authority
with which a Japanese tribunal is invested in respect to the native sub-
jt'cts of Japan, to the extent that our Government will admit a jurisdic-
tion understood to be extremely arbitrary. They were, so to speak, the
agents of a despotism, only restrained by such safeguards as our own
Government may interpose for the protection of citizens who come within
its sway.

" Between this view and that which would regard our consular courts
as possessing only that authority which has been conferred upon them
in express terms by Congress there is a wide margin. Congress, in-
806

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CI VI ll/KD LANDS. [§ 125.

formed by Mr. Scwiud's report before nientioiM-d ot tiie ;ieiier:il views
which had obtained in this l)e[)aitmeiit, has not indicated its(ns>ent or
concinrence, except by silence. It is possibh* that some lutnre appeal
under the fifth an<l sixth sections of tlie act of .Inly 1, bSTo, may h-ad
to a judicial determination of the extent of consular Jnrisdiction. The
communication of your regulations may have the elfect of brinj^in;,' the
whole subject to the consideration of Conjiress, ami pi(»du<e a clear
expression of its views.

•'Nearly all the regulations transmitted by you are re^rarded as clearly
within your power to make, and to carry into effect, until Con},ness shall
in<licate its pleasure to the contrary. They relate, with few exceptions,
to the course of procedure in the consular courts, and so far as they
have this character will be submitted to the judj^nneut of Congress with
out remarks in regard to the expediency of their adoption i»r their
amendment. Among the exceptions are —

"1. The first regulation requiring the registry and enrollment of citi-
zens of the United States under a ])ecuniary penalty and the forfeiture
of right to the protection of the agents of this Government in -lapan.

"This may be a very desirable regulation, but it will be subndtted to
the judgment of Congress whether it be not of a purely legislative char-
acter, divesting private rights in a manner not authorized by Congress,
nor, so far as known, b^' the Government of Ja])an.

"2. The provisions of the thirteenth and thirty-second regulations au-
thorize judicial proceedings, by summons and by attachment of ])roi)erty
against citizens not residing in Jai>an. It is not even required in terms
that they shall at any time have been residents of the Empire. While
it may be that the jurisdiction of our consular courts under treaties aiul
usage extends to the property of Americans in Jai>an, altliongh they
may have abandoned their residence in the Kingdom or have never
resided therein, the question admits of such doubt as to call Ibr the
determination of Congress.

"3. Regulation No. 229 establishes the grounds upon w hieh divorce
from the bond of matrimony may be granted. There is no general law
of divorce enacted by Congress for the Territories under its exclusive
jurisdiction, and the State laws on this subject, as yon are aware, have
important diversities. The rule which you prescribe for the dissolution
of marriage may be very different from that prescribed by the law of
the State in which the parties contracted, and which may be sup|>08ed
to have been in the minds of both of them, as governing their marital
relations. The effect of such divorces may come into controversy ui)on
questions of legitimacy of inheritance, even of bigamy, in every State
of our Union. The children of a marriage subsequent to the divorce of
the parents in Japan may be allowed to inherit in one State, and may
be bastardized in another, unless the law of divorce for citizens of the
United States in Japan, if such divorces are permitted at all, shall be
fixed by an authority to which all will defer. .

807

§ 125.] CONSULS. [chap. v.

"4. Regulation No. 331 deelaivs ;lie ca.ses tlitstiibufed under six heads,
iu which steamers and other vessels shall be subject to liens, in conse-
quence of contracts and torts connected wiih their outtit and naviga-
tion. So far as tliese ;?r^ merely athrmatory of general i)rincii)les of
maritime law they are unobjectionable, but a further clause of the regu-
lation limits the continuance of such Jien to one year. This, even if it
be construed as merely a statute of limitation for actions to be brought
in our courts in Japan, is i)0sitive legislation, and of a novel character.

"5. The sixth regulation in regard to criminal i)roceedings, allowing
the testimony of an absent person to be taken and used in criminal
cases, not merely as against the Government, but against the accused,
is in apparent derogation of the fourth amendment of the Constitution,
which, if that instrument operates upon our citizens in Japan, secures
to the accused the right to be confronted with the witnesses against
him. In any event, it is not in accordance with the common law of
England or of any of the United States, but is to be established by
legislative authority. The same is true, except that there is no objec-
tion growing out of the Constitution, in regard to the thirteenth regu-
lation, allowing a person charged with crime to testify in his own behalf.

" G, The twenty-second regulation of criminal proceedings implies that
murder is distinguishable into three or more degrees. The twenty-third,
subjects to perpetual banishment a person guilty of felony, and the
twenty-fourth refers to the rules of the common law for the definition
of felonies and misdemeanors Where are we to look for the exposition
of the common law? To the courts of Massachusetts, or to those of
Georgia, or to those of England?"

Same to same, Dec. 20, 1870; Ibid. Inclosure, Senate Ex. Doc. 20, 40th Cong.,
3d sees.

" The Ottoman Government and that of Egypt have latterly shown a
disposition to relieve foreign consuls of the judicial powers which here-
tofore they have exercised in the Turkish dominions, by organizing other
tribunals. As Congress, however, has by law provided for the dis-
charge of judicial functions by consuls of the United States in that
quarter under the treaty of 1830, 1 have not felt at liberty formally to
accept the proposed change without the assent of Congress, whose
decision upon the subject, at as early a period as may be convenient, is
earnestly requested."

President Grant, Fifth Annual Message, 1873.

A United States consul in China has no jurisdiction to try a criminal
charge against any one except a citizen of the United States.

Mr. Fish, Sec. of State, to Mr. Low, Jan. 8, 1873. MSS. Inst., China.

" When, however, such an offender, being a member of the crew of an

American vessel, is a subject or citizen of a country having no treaty

engagements on this question with China or Japan, or where the consul

of the nation to which such person may belong shall decline to assume

808

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILI/KD LAJ DS [§ 125.

jurisdiction over him for tiic olVciisc diaij^rd aj,Miiist liim. it is tin* <);>in-
iou of this Department tliat the ((.iisuhir ollic-ers of iIm- IihUmI States
may properly assume Jiirisdictioii in the ease.

"In reference to olfenses eommittcd on shon- in China iuid .lai'an i>y
persons enlisted or serving on hoard national vi-ssels of war, jurisdic-
tion in such cases, in the opinion of iliis Government, should Im' re-
mitted to tl)e consuls of the country under whose fla;; the olfctidcr is
serving, on the ground that all i)ersons who have taken serviei* under a
power are, for the time being, under the jurisdiction of that powi-r ex-
clusively and amenable to its tribunals.

"Infornnition has reached this Department that the ( Jovcrnment of
Great Britain, entertaining these views, has lately issued instructions
to its authorities in China, Ja]>an, and Siam, to a4)stain from interfer-
ence with British subjects serving on United States or other foreign
men-of war, upon the ])rinciple above adverted to, and you are in-
structed in like manner to abstain from interference with citizens of the
United States serving on board British or other foreign vessels of war
who may be charged with the commission of olfenses on shore.'"

Mr. Cadwalader, Acting Sec. of State, to Mr. Aveiy, Nov. "2, 187;'). MSS. Inst.,
China.

" It is the opinion of the Department that the consular couits are
creatures of the statute creating them. Their jurisdiction is Hmitcd
strictly to the subjects, matters, and purposes si)e(!i(ied in the statutes,
and no person or officer, except those expressly named or faiily included
within the terms of the law, can exercise the j)ower8 or functions of a
judge of such court. The act of the 22d of June, 1800, to carry into
efifect the treaty between the United States and China says : 'The word
consul shall be understood to mean any person invested by the United
States with and exercising the functions of consul-general, vice consul-
general, consul, or vice-consul in any of the countries herein named.'
These are the only consular officers invested with, and who, under the
law prior to the revision, could exercise, judicial functions. In trans-
ferring this section to the Revised Statutes the words ' vice-consul-gen-
eral' were omitted (section 4130). It has been held by the Department
that this omission excludes that officer from the right to exercise judi-
cial functions, and consuls-general in China, Jaj)an, and Turkey have
been so instructed."

Mr. Fish, Sec. of State, to Mr. Seward, Jan. VJ, 187(i. MS.S. Inwt., China.

Although not required by our treaty with China, the Department, in
1877, gave a general expression of approval to "the recommendation of
the presence of consular officers of their own nationality in the crimi
nal trial of Chinese where the sufferer is a foreigner, and of allowing a
Chinese officer to be present at the trial of foreigners where a Chinese
is the sufferer."

Mr. Fish, Sec. of State, to Mr. Seward, Feb. 14, 1877. MSS. Inst., China.

809

§ 125.] CONSULS. [chap. v.

Ill tLie lu-actice of the mixed courts sittiug in China the apphcation of
torture to force witnesses to tejitify cannot be permitted, although sanc-
tioned by Chinese hiw, i)ut, on the orher hand, such proper discipline
as may be requisite in the way of imprisonment or otherwise may be
applied.

Mr. Hay, Asst. Sec. of State, to Mr. Angell, Aug. 16, 1880. MSS. lust., China.

The question here involved is one of great difficulty. In England
and in the United States a witness who refuses to testify is imprisoned
until this refusal is withdrawn, but in China our consular courts have
no means of enforcing an order of indefinite imprisonment, and to hand
the contumacious witness over to a Chinese prison would be to hand
him over to torture, of which Chinese prison discipline largely consists.
Yet, without the power of compelling the giving of testimony, no court
of justice can be efficiently conducted. It must be conceded that a con-
sul cannot direct a witness to be tortured, either by his own direct order
or through the agency of Chinese officials. Yet, if he does not exercise
such power, whether a witness shall testify at all, or what limit is to be
imposed on his testimony, will have to be determined by himself.

The only criminal cases in Japan in which under our statutes there is
an appeal from the consular courts to the minister are those in which
the punishment is capital.

Mr. Evarts, Sec. of State, to Mr. Bingham, Oct. 7, 1880. MSS. Inst., Japan.

The punishment in non-capital cases "should conform to that pre-
scribed by the laws of the United States for similar offenses."
Ibid.

"I have the honor to acknowledge the receipt of the note which, by
direction of Earl Granville, you addressed to this Department on the
20th of August last, in relation to the modification and continuance of
the tribunals of the reform in Egypt, after the expiration of the exist-
ing quinquennial period on the 1st of February next.

"The circular of the Egyptian minister of foreign attairs, of May 30,
1880, to which his lordship refers, was received by this Government in
due course, and has had the attention which is due on the part of the
United States, as one of the parties to the original scheme of constitut-
ing the tribunals of the reform which it is now proposed to change by
means of a deliberative commission to be appointed ad hoc. The result
of a detailed examination has led this Government to conclusions which
are, in the main, identical with those of Her Majesty's Government, as
communicated to you by Earl Granville. It accepts, in principle, the
proposal of the Khedival Government, that an international commission
of delegates from the several powers which joined in the institution of
the existing tribunals, should, with as little delay as possible, consider
and report to the powers upon such modifications as may appear to be
expedient or necessary in the constitution of the tribunals of the -reform,
and in their procedure and their administration of the law, as well as
in the law itself as framed by them, so long as such modification shall
810

CHAP, v.] JUDICIAL FUNCTIONS IN SKMI-CI VI 1 I/.KI ) LANDS. [^ 125.

place \hv jiuJiciiil ;Hlmiiii,sii;itioii of ll;:v|»! on ;i li;isis no less favoial)le
than the i)resfnt one tor scciii iii^ to citizi-iis of tlic United StatfH in IIi8
Hi^hness's (U)minions tlic same iiiipiirtial justice tliry «'nj(>yc<l uiidcr flic
exercise of judicial fiiuctioiis hy the diploinatii- and consnhir olliccis of
the United States in those dominions prcx ions to tiic insliiniion of the
reform tribunals.

"This Government will, tlicrcforc, appoint, ai as eaily a day .is po-s;
ble, two delegates, one of whom shall be principal and tin- other asso-
ciate, with the same functions as liUe adjunct dele<;ates of the other
])Ovvers,* to represent the United States in the proposed comiidssion.

"This Government shares the views tif that of Her nritannie .Majesty
with respect to the future admission, if it be found expedient, of dele-
gates or other powers than those which united in establishing the ex-
isting judicial system of I'^gypt. It likewise concurs in the opinion
that the formation of a subcommittee is a mattei- jjrojierly within the
discretion of the commission itself.

"The question of the extension of tlie ])resent (piincpiennial jieriod to
cover the time which may possibly elapse before the modihcations to be
adopted can become operative, being, so far as the United States are
concerned, one for the discretion of the executives, this Government is
prepared in this matter also to accede to the proposal of the Govern
meut of His Highness the Khedive. The question of the appoiiiment
of the present foreign judges to like jdaces in the reorganized tribunals,
being i)roperly one for the consideration of each of the appointing
powers, it is conceived that no rigid rule should be adojitcd by the
commission with respect to such appointments. It may thus be expc
dient to provide that the continuance of the present judges through
whatever extended term may be re(piisite belbre the i)roi»osed moditi
cations can take effect, shall not necessarily imply renewal of their ex-
isting contracts with the Egyptian Government for a fixed quinquen
nial or other period, but shall bo simply for the time needful to eflect
the contemplated changes."

Mr. Hay, Acting Sec. of State, to Mr. Druniinoud, Oct. 26, 1880. MSS. Notes,
Gr. Brit.; For. Rl-1., 1880.

" When commercial relations and general intercourse were opened to

foreign nations and extended by the liberality of the Chinese and Jap

anese Empires, it became evident that the seamen and citizens of these

foreign powers could not safely be subjected to the local authorities.

The arbitrary jurisdiction of their courts, more executive than judicial,

the custom of torturing witnesses to compel their testimony, the extreme

and cruel punishments indicted even for comparatively sli;4ht oflenses,

the difficulties of language and the utter incompatibility of habits of

thought on all legal and moral (piestions, made it impo.><sible to trust

the persons, the property, and the lives of our own people to such a

iurisdictiou.

•^ 811

§ 12.5.] CONSULS. [chap. v.

" This was recoguized oy the Governmeuts of China and Japan, and
tbey consented to transfer the necessary judicial authority which, in
their own tenitory, would otherwise unquestionably have been exclu-
sive to the consular officers of such foreign powers as were willing to
negotiate treaties to that effect.

"By Article IV of the treaty of Siuiod;i, 1857, and Article VI of
the treaty of Yeddo, 1858, both negotiated l)y the same minister, it is
provided that:

'"Americans committing offenses in Japan shall be tried by the Amer-
ican consul-general or consul, and shall be punished according to Amer-
ican laws,' and 'Americans committing offenses against Japanese shall
be tried in American consular courts, and when guilty shall be punished
according to American law,' thus providing for the trial of all offenses
committed b^' Americans in Japan by the consular courts of the United
States.

" The same principle, as I understand, is secured by treaty to the sub-
jects of Her Britannic Majesty.

" Under these jiro visions no difference can arise. Under them, clearly,
the test of jurisdiction is nationality. An offense committed anywhere
in Japan, except on a foreign man-of-war or within the precincts of a
foreign legation, which are extraterritorial, if committed by an English
subject resident in Japan is justiciable before the British courts; if
committed by an American citizen resident in Japan, is justiciable in
the consular courts of the United States.

" But there is a class of people who are not residents of Japan in
the ordinary acceptance of the term, and who are not protected by the
extraterritorial character of the vessel on which they serve. They are
the seamen of the mercantile marine, and they are specially recognized
by Article IX of the treaty of 1858, which provides :

" ' When requested by the American consul, the Japanese authorities
will cause the arrest of all deserters and fugitives from justice, receive
in jail all persons held as prisoners by the consul, and give to the con-
sul such assistance as may be required to enable him to enforce the
observance of the laws by the Americans who are on land, and to main-
tain order among the shii)ping.'

'• And in view of this provision, the Government of the United States,
which authorizes the enrollment in every American merchant ship of a
certain number of seamen who are not citizens, has enacted in the act
providing for the execution of this treaty, as follows :

" ' Jurisdiction in both criminal and civil matters, shall, in all cases,
be exercised and enforced in conformity with the laws of the United
States, which are hereby, so far as is necessary to execute such treaties,
respectively, and so far as they are suitable to carry the same into
effect, extended over all citizens of the United States in those countries,
and over all others to the extent that the terms of the treaties respect-
ively, justify or require.' (Section 48S6, Eev. Stat.)
812

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZKD LANDS. [§ 125.

" The position taken by the GoverniiMMit of the Ciniid States in this
legislation, under the articles of the treaty, is, tliat a loteif^n seaman
duly enrolled on an Anierieun nu-rcliant vessel, is subjeet to the hiws
and entitled to the i)rotection of the United States to precisely ilie same
extent that a native-born seaman would he, durinj,' tiie period of his
service; that althouj;!i not an American citizen, lie is unquestionably
an American seaman. * * *

" When a foreigner enters the mercantile marine of any nation and
becomes one of the crew of a vessel having undoubtedly a national
character, he assumes a temporary allegiam e to the Hag under which
he serves, and in return for the i)rotection a Horded him becomes subject
to the laws by which that nation, in the exercist; of nn un(piestioned au-
thority, governs its vessels and seamen. If, therefore, the (jovernmetit
of the United St;ites has, by treaty stipulation with Japan, ac<iuire(l tin*
privilege of administering its own laws ujjon its own vessels and in
relation to its own seamen in .J.ipiinese territory, then every American
vessel and every seaman of its crew are subject to the Jnrisdiction by
which such treaty has been transferred to the Government of the Uintetl
States."

Mr. Blaine, Sec. of State, to Sir E. Thoruton, June:!, l^y-^l. .M.S.S. Notes, Gr.
Brit.

"The intimacy between our own country ami .I;ipan, tlie most ad-
vanced of the Eastern nations, continues to be cordinl. I am advised
that the Emperor contemplates the establishment ol full constitutional
government and that he has already summoned a parliamentary con-
gress for the ])urpose of effecting the change. Such a remarkable step
toward complete assimilation with the Western system cannot fail to
bring Japan into closer and n»ore beneficial relationship with ourselves
as the chief Pacific power.

"A question has arisen in relation to the exercise in that country of
the judicial functions conferred upon (uir ministers and consul.s. The
indictment, trial, and conviction in the consular court at Yok(>liama of
John Ross, a merchant seaniHU on boaid an AmerM-an vessel, have
made it necessary for the Government to institute a careful examina-
tion into the nature and methods of this jurisdiction.

" It appeared that IJoss was regularly shipped under the tlag of the
United States, but was by birth a British subject. My predcces.sor felt
it his duty to maintain the position that, (luring his .service as a regu-
larly shipped seaman on board an AnuMican meichant ves.sel, Koss was
subject to the laws of that service, and to tin- jniis<liction ol the United
States consular authorities."

President Arthur, First Annual Messa.ne, 18-*1.

A seaman duly enrolled in a meichant vessel of the United States,
lying in the port of Yokohama, and wiio there was guilty of murder, is

813

§ 125.] CONSULS. [chap. v.

within the jurisdiction of the United States consul at that port, and
may be convicted of such crime, althon<ih he was at the time a British
subject.

Mr. Blaino. Sec. of State, report to President, Dec. 19, 18dl. M.SS. Report Book.

As to cousnlar jurisdiction in such case, see supra, § 124 ; as to jurisdiction
generally, see supra, §$ 35, 3.5fl.

On December 19, 1881, President Arthur sent to the Senate a rei)ort
of Mr. Blaine, Secretary of State, on "■ the present system of consular
jurisdiction." Mr. Blaine, in this opinion, comments adversely on the
constitutionality as well as policy of .section 4083^., Revised Statutes.
He advises the establishment, in place of the consular courts, of purely
judicial tribunals. As showing the inadequacy of native tribunals for
this purpose he says: ''In China, as in uearlj' all the countries of the
East, where extraterritoriality of jurisprudence obtains, there is no ade-
quate system of native jurisprudence to serve as a basis for a mixed
tribunal, and little or no indicatioa that the native Governments appre-
ciate the insufficiency of their codes or are disposed to move for a re-
form therein. I may remark, nevertheless, that in Japan the case is
different. The rapid assimilation ot the native methods of that Empire
to Western standards makes the creation of an international court there
a probability in the near future."

Mr. Blaine, Sec. of State, report to President, Dec. 19, 1881. MSS. Report Book.

" I have the honor to bring to your attention the inclosed copy of jV
letter of the 3d ultimo, from Stephen P. Mirzan, praying for a pardon.

''The story of the crime may be briefly stated as follows: On the
17th of July, 1879, Alexander Dahan, a distinguished lawyer and es-
teemed gentleman, met Stephen P. Mirzan in the streets of Alexandria,
Egypt, where they had angry words and finally came to blows, Mirzan
striking Dahan. Dahan ran away, fleeing through a corner book-store,
in at one door and out at another, closely pursued by Mirzan, who, as
Dahan passed out of the second door, shot him through the back of the
head, the ball coming out through the forehead. Dahan died instantly.
He was a subject of Turkey. *

" Mirzan was tried at Alexandria before the late Horace Mnynard,
then minister of the United States to Turkey, convicted of murder iu
the first degree June 12, 1880, and sentenced to be hanged October 1,
1880.

" President Hayes commuted this sentence to life imprisonment in an
American prison at Smyrna. This commutation is dated July 29, 1880.

" The .3d of August, 3882, President Arthur directed that Mirzan be
brought to Albany and that the remainder of his sentence be served
out at the penitentiary at that capital. He was accordingly trans-
ported thither, where he is now confined.

"Of the legality of Mirzan's trial and conviction there can be no
doubt, as both your Department and the higher courts of this country
814

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [§ 125.

have affirmed and rec()<iiiizt*(l our cxtiatciTitoiial juii.sdictiou in such
cases under our statutes.

"Although numerously si^ntd petitions for Mir/.iiii's panhtn have
reached this Governnient, Presi(h*nts Jlayes and Arthur liave carli de-
clined to exercise their prerogative except as previously stated.

" Mrs. Marie Antoinette Mirzan, wife of Stephen P. Mir/.an, lias aUo
sought on frecjueut occasions to have her husband i)ardone(l. In leply
to one of her letters Mr. l>laiiie, Secretary of State, wrote, Noveniher 14,
1881, as follows:

" 'I am directed by the President to express his regret that n()thing
in your husband's case, in his judgment, calls for the exercise of the
President's prerogative further for his relief. A full review of the case
was made by President Garfield, which resulted in finding no ground
for extending clemency beyond the commutation of the death penalty
decreed by the court ; and nothing has since then been adduced to lead
President Arthur to modify the conclusions reached by his i)redecessor.'

'• On the 20th of January, 18813, Mr. Frelingliuysen, late S«'cretaiy of
State, in a letter to Mrs. Mirzan, adhered to the conclusions of the De.
jiartmeut's previous letter of November 14, 1881. He also said :

" ' The Piesident, however, desires me to add that when a longer
time shall Iuiac elapsed from the conviction of your husband of the very
grave offense with which he was charged, you may feel at liberty to
renew the application, supported by such recommendations from the
l)rison officers and peojde of Synirna as you may be able to obtain, and
that the subject w^ill then receive renewed and serious consideration.'

"On January 14, 1883, Mr. Frelingliuysen. writing to Mirzan, .stated
that the President did not feel justified in further interfering with the
course of justice.

"The question of Executive clemency would appear to be the only
one open. As to this, however, it may incidentally be remaiked that
the main objection to Presidential clemency being accorded is that it
would undoubtedly have an injurious effect on our treaty discussion
with the Government of Turkey, of which, as stated, Dalian was a sub-
ject. Turkey would doubtless make use of Mirzan's jiardon as an ovi
deuce that this Government favored its citizens even when appearing
to try them.

"While doubtful of the ex])ediency of a pardon or reduction of sen
fence at this time, less than six years from the commission of the mur
der, yet I have no desire to interfere with Mirzan's aj>i)licat.«)n having
the fullest possible consideration, and upon receiving an intimation
from you that you desire to give attention to his jietition, with a vi«'w to
a decision on its merits in connect.iou with his conlineinent. and a re
port from the prison authorities at Albany, as foreshadowed by Mr.
Freliughuysen, I shall take jdeasure in luinishing you with such copies
of the record in Mirzan's case as may be necessary to a fuller and more
complete understanding of the subject.

815

§ 125 ] CONSULS. [chap. v.

"I Lave delsiyed responding to Mirzan's letter until I shall be ap-
prised of the decision of your De})artnient in the premises."

Mr. Bayard, Sec. of State, to Mr. Garland, Atty. Gen., June Id, 18^:). MSS.
Doui. Let.

'' Your letter of the 21st instant has been received. It relates to the
case of J. M, Eoss, alleged to be a British subject, who, having in 1880
killed a fellow sea nnin named llobert Kelly, on the American ship
Bullion, in the harbor of Yokohama, was tried by the United States
consular court there, convicted, and sentenced to death, which penalty
was later commuted by the President to imprisonment for life in the
Albany penitentiary, where Boss is now conlined.

" You state thnt Boss ' wishes to have his case reviewed on the ground
that the court had not jurisdiction of his person, he being then and now
a British subject.'

" The question of jurisdiction in Boss's case has already had full con-
sideration on two pleas — want of jurisdiction of his person and uncou-
stitutiouality of the form and manner of trial. The latter plea, being
of municipal competence, was before the circuit court of San Francisco
on a writ of habeas corpus, sued out by Eoss on reaching that port, on
his way from Yokohama to Albany, April 4, 1881, and the court dis-
missed the writ. The constitutionality of the judicial extraterritorial
procedure prescribed by statute under the authority of the treaty is
established. This branch of the question can be municipally tested
by being brought before the United States courts by habeas corpus.

" The plea that Eoss, being an alien, was beyond the "jurisdiction of
the consular court, was raised by the British Government. * * *

" This Government denied the plea on the admitted doctrine that the
sov^ereign of the flag of a ship has jurisdiction of crimes committed by
foreigners on such ship on the high seas or in i)orts where the courts of
the United States have jurisdiction, and that Eoss, being a duly arti-
cled seaman on an American ship, was within the statutory and treaty
jurisdiction of the United States court at Yokohama. If this phase of
the question is to be revived, it can only be presented by the British
Government through the diplomatic channel."

Mr. Porter, Asst. Sec. of State, to Mr. Stimson, June 28, 1886. MSS. Dom. Let.

" By treaty stipulations with most non-Christian countries, the United
States has acquired a right of extraterritoriality.

"Congress has enacted certain statutes for carrying into effect the
provisions of treaties in this respect by conferring judicial powers upon
consular officers and original or iippellate jurisdiction upon diplomatic
agents. These statutes are embraced in sections 4083 to 4130, inclusive,
of the Eevised Statutes. It is the duty of all diplomatic agents in those
countries to acquaint themselves with these provisions of law.

"For the convenience of the diplomatic agent, certain particulars
concerning his original -powers and functions, and his advisory, super-
visory, or appellate relations to consular otlicers exercising extra terri-
torial jurisdiction in the same country, are herein given, premising that

SIO

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILI/KD LANDS. [§ 125.

our legislation on the subject is in a very unsatisfactory and uncertain
condition, which Congress has been asked to remedy.

"The jurisdiction of both ministers and consuls in criniinai and civil
matters is to be exercised in conformity, 1st, with the laws of the United
States; 2d, with the common law, equity, and admiralty; and 3d, with
decrees and reguhitions, * * * made by tiie ministers of the United
States in each country, res])ectively, to supply defects an<l deliciencies in
the laws of the United States, or the coiiunon law as above de(im'<l.

"This i)Ower of the minister to make laws and rei;ul:itions is limited,
by construction of the Department, as not imparting- to him an ai bitiary
l)Ower of legislation, but as remedial and coiitined to acts necessary to
organize and give efficiency to the courts created by the act.

"The authority conferred by the statute is defined to be nju/lii inl an
thority. The minister is required to execute the i)ow('r in conformitif
icith the laics of the United States, with authority to supjjjy defects and
deficiencies in two cases only : (1) Where those laws are not adajned to
the exercise of the judicial authority conferred by the statute, (L') Where
they are deficient in provisions to furnish suitable remedies. In each
of these contingencies the minister has authority to make regulations in
order ' to furnish stdtable and appropriate remedies,^ and for no other
jmrpose whatever. Every power named in the statute in this respect is
conferred ui)on the minister, Hn order to organize and carry into effect the
system of jurisprudence.''

" It is provided that the ministers shall ])resciibe the forms of all proc-
esses to be issued from the consular courts, the mode of executing and
the time of returning the same; the manner in which trials shall be con-
ducted, and how the records thereof shall be kept ; the form of oaths for
Christian witnesses, and the modeof examining all other witnesses; the
costs to be allowed to the i)revailing party, and the fees to be paid for
judicial services; the manner in which all officers and agents to execute
process shall be appointed and paid; the form of bail bonds, and the
security which shall be required from the i)arty who api)eals from the
decision of a consul. He is required to make from time to time such
further decrees and regulations as may be necessary. It is his duty also
to establish a tariff of fees for judicial services, to be paid by such par-
ties and to such })ersons as he shall direct.

" The statute further i)rovides that all such regulations, decrees, and
orders shall be i)lainly drawn up in writing, and submitted, as hereinbe-
fore provided, for the advice of the consuls, or as many of then) as can bo
consulted without prejudicial delay or inconvenience, and each consul
shall signify his assent or dissent in writing, with his name subscribed
thereto. After taking such advice, and considering the same, the min-
ister in each of those countries may, nevertheless, by causing the decree,
order, or regulation to be i)ublished with his signature thereto, and the
opinions of his advisers inscribed thereon, make it binding and obliga-
tory, until annulled or modified by Congress; and it shall take ellect
from the publication or upon any subsequent day named in the act. •

"All such regulations, orders, and decrees shall, as speedily as may
be after publication, be transmitted by the ministers, with tiie opinions
of theii advisers, as drawn up by them severally, to the Secretary of
State, to be laid before Congress for revision.

"The forms and practice in each consular court have now become set-
tled by usage. Each consul is required to conform to them. Shouhl he
find defects in any part of the existing system, he will call the atten-

S. Mis. 102— VOL. I 52 SI 7

§ 125 ] CONSULS. [chap. v.

tiou of the diplomatic representative of the United States to them. The
power of directing- a change is vested in that ofiflcer by hiw, and should
be exercised, if called for by circumstances, in the manner prescribed,
in the foregoing sections.

''The power of commencing original, civil, and criminal proceedings
is vested in consular officers exclusively, except that capital cases for
niurder or insurrection against the Government of either of the countries
named in the statute, or offenses against the public peace amounting
to felony under the laws of the United States, committed by citizens of
the United States, may be tried before the minister. Original jurisdic-
tion is vested in the ministers also in cases where the consular officer
is interested either as party or witness.

"A perusal of the several scctiony; of the existing statutes may leave
the diplomatic agent in doubt as to i'hether it was the intention of Con-
gress to make his jurisdiction in capital cases exclusively original, or ex-
clusively appellate, or either, as the case may be, or simply revisory.
Section 4084 gives to ministers and consuls in China, Japan, Siam, Egypt,
and Madagascar power to arraign and try 'all citizens of the United
States charged with offenses against the law.' Section 408C refers to the
jurisdiction so conferred as exercisable 'in both criminal and civil mat-
ters.' Section 4087 authorizes each of the consuls at ports in the above-
named countries to arrest and try all offending citizens of the United
States. Section 4090 ])rovides that cai)ital cases may be tried before
the minister if allowed jurisdiction by treaties. Section 4091 authorizes
^ach of the ministers in the countries named 'to hear and decide all
cases, criminal and civil, which may come before him, by app.eal,' in cases
■where appeal is provided. Section 4102 provides that insurrection or
rebellion against the Government of either of those countries, and mur-
der, shall be capital offenses punishable with death, but no person shall
be convicted unless the consul and his associates all concur, and the
minister also approves of the conviction. Section 4106 provides that
where the consul shall be of the opinion that associates will be useful,
there shall not be less than four such associates in capital cases. Sec-
tion 4108 provides that the jurisdiction allowed by the ministers in the
countries named above shall be exercised by them in those countries
wherever they may be. Section 4109 provides that the jurisdiction of
the minister, in all matters of crimes, 'except in capital cases, * * *
shall be appellate only.'

" If in doubt on these points it may be advisable, wherever there is a
consular court established, for the di])lomatic agent to confine his juris-
diction to matters of revision and appeal, as the course most consonant
with the usual principles of justice which it is made his duty to apply.

"The statute provides that in the case of a conviction entailing the
death penalty, it shall be the duty of the minister to issue his warrant
for the execution of the convict, appointing the time, place, and man-
ner; but if the minister is satisfied that the ends,^of public justice de-
mand it, he nuiy fi'om time to time postpone svcit execution ; and if he
Jinds miti(jaiin<i circumstances tcliich authorize it, he may submit the case
to the President for pardon.

" As this provision stands it ap])ears to make the diplomatic agent the
sole judge of the propriety of extending Executive clemency to the convict.
It was probably not the intent of Congress to bar theexercise of the Presi-
dent's i^ower of ])ar<lon at the discretion of a diplomatic agent; and it
would be manifestly imi)roperas well as of doubtful constitutionality to
do so in the possible case of conviction being had before the officer

818

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [ ^125.

whose duty it i«iiiade to execute the sentence. In cases joining' under
this statutory i)rovisi()n llie I)ei»ait!ueut of Stale (hems it advisalde that
the diplomatic agent sliouhl always regard the ends ot puhlu; justice as
requiring ])ostj)oiiement ot the execution until tiie case is reported and
copiesot thejudgmentaiid testimony are transmitted to the Depaitment
of State and the President's views in the premises shall have heen le-
ceived.

•'Consuls nuiy also, wlitMi ofojunion that legal (piestions may an.ve in
wliich assistance will be useful, or that a j)unishment in excess of one
huudred dollars' line or sixty da.\s' in)prisonment is re(juire<I, summon
associates, citizens of the United States, not more than lour in numlter,
taken by lot Irom a list to be i)reviously approvetl by the minister, to
sit with them on the trial, each of whom is to enter upon the record his
judgment and opinion, and to sign the same ; but the consul himself
gives the judgment in the case, whether it accords with that of his as-
sociates or not.

"In trials for capital ofienses there must be not lesstiian four associ-
ates, who must all agree with the consul, and the oi)inion must be ap-
l)roved by the minister before there can b* a conviction.

"It is the duty of a consular officer after arrival at his post to make
himself acquainted with the leading resident citizens of the United
States, in order that he may nominate for the aj»i)roval of the iuinister
a list of individuals for the puriK)ses of the statute.

"The list should be full, so as to embrace, if possible, every interest
in the community. It shouhl be composed exclusively of citizens of the
United States of good repute residing at the place. From time to time
it should be revised. No person should be jiermitted to act as an as-
sociate on a trial who has any interest, direct or contingent, in the suit.

" Section 4106 of the Kevised Statutes seems to give consids only the
discretionary power to summon associates. In practice, however, it is
customary for the minister to exercise this power in cases wliere he has
original jurisdiction.

" In the infliction of punishments on persons convicte<l in consular
courts, dii)lomatic agents as well as consular officers are expected to bo
governed by the provisions of the statutes of the Uidted Stat»'s pre-
scribed for similar offenses, and will be careful that the sentence iu each
case is in conformity therewith.

" It is the duty of diplomatic agents equally with consular officers to
encourage the settlement of controversies of a civil character by mutual
agreement, or by submitting them to the decision of referees ; and the
form of such submission is to be acknowledged before the otlicer. After
hearing any case the referees are required to deliver their award, sealed,
to the officer, who is to open it in court. If he accepts the award he
shall indorse the fact, and render judgment thereon. The parties, |u»\v-
ever, may always make a settlement before return is maile to the officer.

" In some criminal cases it is lawful for the parties concerned therein,
with the assent of the minister in the country, or consul, to adjust or
settle the same among themselves upon pecuniary or other considera-
tions.

" The minister is authorized to hear and decide all cases, criminal and
civil, which may come before him by appeal, ami to issue all jirocesses
necessary to execute the power conferred upon him ; and he is lully em-
powered" to decide finally any case upon the evidence which comes up
with it, or to hear the parties further, if he thinks justice will be pro-
moted thereby. He may also prescribe the rules upon which new trials

819

§125] CONSULS. [chap. V.

may be jiiaiited, either by tbe eoiisul or by biinself. Provisiou is also
made tor ai)i)eal in certain eases fi om tbe decision of the minister to the
circuit court for tbe district of California.

" An appeal may be taken to the minister fronr a decision of a consul
acting alone, where tbe tine exceeds one hundred dollars or the term of
imi)risonment for misdemeanor exceeds sixty days.

" If associates sit with tbe consul in criminal proceedings (except cap-
.ital and except in tbe case mentioned in tbe preceding paragraph) an
appeal can be taken to tbe minister only in the event of disagreement
between tbe consul and any of tbe associates.

" In civil cases the consul is required to summon, under the statute,
associates, therein described, to sit with him (1) when be is of opinion
that the case involves legal perplexities, or (2) when the damages de-
manded exceed five hundred dollars. In a case in which the damages
demanded do not exceed live hundred dollars, if he decide the case with-
out aid, his decision is final. But in such cases when associates sit with
■the consul, an appeal can be taken to tbe minister where there is a dis-
agreement of opinion between any of the associates and the consul."

Printed Pers. lust., Dip. Agents, l«'-5.

As to consular jnrisfliction in Turkey of liomicides of Turks by United States
citizens, see Mr. Evarts, Sec. of State, to Aristarchi Bey, Mar. 30, 1878
MSS. Notes, Turkey.

For reports on judicial functions of consuls,' see MSS. Eep. Book, Dept. of
State, vol. 8, pp. 97, 233, 369, 379, 4«9.

As to consular jurisdiction iu Makommedan countries, see Mr. Webster, Sec. of
State, to Mr. Payne, Mar. 30, 1851. MSS. Inst., Barb. Powers.

As to appeals from consular courts, see letter of Mr. Fish, Sec. of State, to
Senator Butler, Mar. 24, 1875. MSS. Dom. Let.

In Senate Ex. Doc. No. 25, 41st Cong., 3d sess., -will be found a " copy of regula-
tions for the consular courts of the United States in Japan, decreed and
'issued, by the minister of the United States for that country."

As to passports by consuls iu Oriental lands, see infra, § 191.

As to consular jurisdiction under treaties, see supra, § 68; infra, § 153. See also
Mr. Shei)pard's pamphlet on Extraterritoriality, in reference to Japan.
The question of foreign consular jurisdiction over crimes is examined with
great fullness in 4 Lawrence Com.sur droit int., chap. i. See also Schuy-
ler's Am. Diplom., 64 jf.

Judicial powers are not necessarily incident to the office of consul,
although usually conferred upon consuls of Christian nations in pagan
and Mohammedan countries for the decision of controversies between
their fellow-citizens or subjects residing or commorant there, and for
the punishment of crimes committed by them. The existence and ex*
tent of such powers depend on the treaty stipulations and positive laws
of the nations concerned.

Dainese t;. Hale, 91 U. S., 13.

The treaty between the United States and the Ottoman Empire, con-
cluded June 5, 1862 (if not that made in 1830), has the effect of con-
ceding to the United States the same privilege in respect to consular
courts and the civil and criminal jurisdiction thereof which are enjoyed
by other Christian nations ; and the act of Congress of June 22, 1860,
established the necessary regulations for the exercise of such jurisdic-
820

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [§ 125.

tiou. But as this jurisdiction (that of consular (Mdirts) Is, in terms, only
such as is allowed by the laws of Turkey, or by its usa<res in its inter-
course with other Christian nations, those laws or usages must be shown
in order to know the precise extent of such jurisdiction.
Ibid.

The defrndaut, when consul-general of the United States in Hgypt,
in 1804, issued an attachment against the goods of the plaintill" tliere
situate. Phiin tiff, and the persons at whose suit the attachment was
issued, were citizens of the United States and not residents or sojourn-
ers in tlie Turkish don>inions. For this act the plaintill' brought suit in
this country to recover the value of the goods attached. The defendant
pleaded his official character, and, as incident thereto, claimed jurisdic-
tion to entertain the suit in which the attachment was issued. It was
held that the plea was defective for not setting forth the hiws or usages
of Turkey upon which, by the treaty and act of Congress conferring the
jurisdiction, the latter was made to depend, and which alone would show
its precise extent, and that it embraced the case in question.

Ibid.

A consular court is a court of limited jurisdiction, and all the juris-
dictional facts must be alleged in the libel or petition ; otherwise it will
be insufficient. In cases of appeal from the consular and ministerial
courts of China and Japan to the circuit court of the United States for
the district of California, the record on appeal must show an allowance
of the appeal. A «itation is necessary, unless the appeal is allowed in
open court, though it may be questioned whether a citation is not
always necessary, if the consular court has once adjourned after ren-
dering a decree, there being no terms of such courts.
Steamer Spark v. Lee Cboi Cbum, 1 Sawyer, 713.

The question of extraterritorial jurisdiction for crime is discussed, iu
its general relations, supra^ § 9, ff.

In the absence of any specific appropriation for the object, the ex-
pense of transferring prisoners, held by the authorities of the United
States in China, from Amoy to Hong-Kong for trial on a charge of
piracy, is a lawful charge upon the judiciary fund, so called, being the
fund appropriated for defraying " the expenses of i)rosccutions for
offenses committed against the United States, and for the safe keeping
of prisoners."

6 Op., 59, Gushing, 1853.

Consuls at the Barbary ports, and in general in other .Mohammedan
countries, must not be confounded in respect of functions or of regula-
tions with the consuls established iu the counlries of Christendom.
Their condition is referable to peculiar doctrines of the law of nations,

821

§ 125.] CONSULS. [chap. v.

and they are governed in many respects by particular treaties and acts
of Congress.

7 Op., 242, Cushiiig, 1855.

Congress lias empowered the commissioners and consuls of the United
States in China to exercise judicial authority over their fellow-citizens.
The consuls have original jurisdiction, each within his consular circum-
scription, in civil cases involving a question of damages which arise
between two or more citizens of the United States, and in all cases of
crime committed by a citizen of the United States. In civil matters if
the damage demanded exceed five hundred dollars then, of necessity,
and in other cases, if the consul see fit, the consul is to summon to his
aid not less than two nor more than three citizens of the United States,
as assessors, who shall with him hear the case.

If the associates concur in opinion with the consul, his decision is
final; but if they differ with him, their opinions are to be noted on the
record, and either party may appeal to the commissioner. In civil
cases, and in all criminal cases except capital ofienses, the commis-
sioner's authority is appellate. In capital cases there is no appeal, but
the conviction is invalid unless approved by the commisioner, who, if
he approve it, is either to issue a warrant of execution, or, in his dis-
cretion, submit the case to the President for pardon.

7 0p.,495, Cu8hing,1855.

In all criminal cases, except capital and certain minor offenses, the
consul must summon one or more citizens of the United States, not ex-
ceeding four, to sit with him. If they concur, the decision is final; if
they differ, the case, with the record and all the evidence, is referred to
the commissioner, who may either determine it, or, if he choose, remit
the case with instructions to the consul for further proceedings.

Hid.

In certain minor cases the consul may sit alone ; in capital cases he
must always proceed with four associates. But in a civil controversy
between a Chinese and an American, the authorities of the two Gov-
ernments are to have concerted action.
Ibid.

Controversies occurring in China between citizens of the United
States and subjects of any other (Christian) Government, are to be reg-
ulated by the treaties existing between the United States and such Gov-
ernments, respectively.

Ibid.

In the exercise of their jurisdiction the consul and his associates, and
the commissioner, are to be guided by the laws of the United States,
the common law, and such supplemental decrees and regulations as the

822

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZED LANDS. [§ 125.

comraissiouer may from time to time maJie. The commissioner, iu ILih
sense, is the person vested with tlie powers of chief diplomatic func-
tionary of the United States.
Ibid.

In civil cases, not involving a question of damages, the safer course
would be to adhere, so far as may be, to the spirit of the law, which
makes the commissioner the appellate supervisor of the judicial acts of
the consuls.

Ibid.

In the Levant the general system is (1) Turkish tribunals for ques-
tions between isubjects of the Porte and foreign Christians ; (!') consular
courts for the business of each nation of foreign Christians ; (3) trial of
questions between foreign Christians of difl'erent nations in the con-
sular court of the defendant's nation; (4) mixed tribunals of Turkish
magistrates and foreign Christians substituted by common consent in
part for cases between Turks and foreign Christians; (5) finally, for
causes.between foreign Christians, the substitution also, of mixed tri-
bunals in place of the separate consular courts. To all these extrater-
ritorial privileges Americans are entitled.
7 Op., 565, Cusbiug, 1855.

The judicial authority of the United States commissioner to China is
restricted to the five ports mentioned in the treaty with that nation.
9 Op., 294, Black, 1859.

Under the act of August 11, 1848, the United States consuls in Tur-
key have judicial powers only in criminal cases.

9 Op., 296, Black, 1859.

The salary of a person appointed marshal of the United States con-
sular court at Shanghai begins from the time of his entering upon such
duties as are i)reliminary to his dei)arture for the field of his services
after taking the oath of oflBce and giving the bond prescribeil by law.

10 Op., 250, Bates, 1862.

A United States consular court in Jajian cannot, in a suit against a
citizen of the United States by a Dutch subject, allow aclaimof set-ofi
beyond the extent of the plaintiff's demand. Nor can siu-h a court in
Japan render a judgment against a i)erson not a citizen of the United
States.

11 Op., 474, .^ptH-d, If^eu.

The consular courts of the United States at Honolulu have the ex-
clusive right of determining disputes occurring among the crew of a
vessel of the United States, under the " favored-nation" clause of the
treaty, such a concession having been made to France.

11 Op., 508, Speed, 1866.

823

§ 125.] CONSULS. [chap, v

In the case of consular courts vested with criminal Jurisdiction, as \v,
the case of other courts having similar jurisdiction, a sentence of im-
l)risonment cannot be legally executed beyond the territorial jurisdic-
tion of the court which i)ronounces it, unless by legislative nuthority.
Hence, in the absence of any act of Congress, convicts of the consular
courts at Smyrna and Constantinople, if sent to the United States for
imprisonment, couhl not legally be held.
14 Op., 522, Williams, 1875.

In the United States Consular Regulations (ed. of 1881) the law as to
consuls is thus declared : " In Mohammedan and semi-civilized countries
the rights of extraterritoriality have been largely preserved, and have
been generally confirmed by t re;! ties to consular officers. To a degree they
enjoy the imujunities of diplomatic representatives, besides certain pre-
logatives of jurisdiction, together with the right of worship, and, to some
extent, the right of asvlura " (§ 80). These immunities extend to an ex-
emption from both the civil and criminal jurisdiction of the country to
which they are sent, and protect their household and the effects covered
by the consular residence. Their personal property is exempt from tax-
ation, though it may be otherwise with real estate or movables not
connected with the consulate. Generally they are exenipt from all per-
sonal impositions that arise from the character of a subject or citizen of
the country (§ 81). ''The consular jurisdiction in these countries is
both civil and criminal, and has in most cases been provided for by the
sti])ulations of treaties. The extent of its exercise, as well as the pen-
alties and i)unishments to be enforced, depend generally upon the laws
of his own country to the exclusion of the jurisdiction of all local tribu-
nals.'' (See Lawrence's Wheaton, 7.3, 74, notes. The question, on its
criminal side, is discussed in Wharton's Criminal Law, 8th ed., § 273;
and see Strupp, in re, 11 Blatch., 124.)

Such jurisdiction, however, is limited to barbarous or semi-civilized
states. (The Wiliiani Harris, Ware, 307.) Nor, in England, will a for-
eign consul be regarded as entitled as such to administer the estate of
a domiciled subject of the country which such consul represents. (And
see Schuyler's Am. Diplom., 64, ff.)

"Consuls haA^e exclusive jurisdiction over crimes and offenses com-
mitted by citizens of the United States in Borneo, China, Japan, Mada-
gascar, and Siam. In Morocco, Tripoli, and Tunis the consuls are em-
])owered to assist in the trials of citizens of the United States- accused
of murder or assault. In Persia citizens of the United States commit-
ting offeuvses are to be tried and judged in the same manner as are the
subjects of the most-favored nations. Americans committing ofienses
in Tuikey should be tried by their minister or consul, and are to be
l)unished ac(;ording to their olfense, following, in this respect, the usage
observed toward other Franks; but, in consequence of a disagreement
as to the true text of the treaty, consuls in the Ottoman dominions are
instructed to take the directions of the minister of the United States at
Constantinople in all cases before assuming to exercise jurisdiction over
criminal ofienses." (See infra, § 105.)

"In China and Japan the judicial authority of the United States will
be considered as extending over all persons duly shipped and enrolled
upon the articles of any merchant vessel of the United States, whatever
be the nationalitv of such person. And all offenses which would be

824

CHAP, v.] JUDICIAL FUNCTIONS IN SEMI-CIVILIZKI) LANDS. [§ 125.

justiciable by the cousular courts ot tlu- UnittMl StjitON, wlien^ the iier
SODS so offeiulinjr are native born or natiuiilizcd citizens of th«' United
States, enipl<)ye<i in the merchant service Uicreot, arc e(|naliy jnsti<'iahlf
by the same consular courts in the case of seamen of Ibrcijiii iiafionality.

''Seamen serving on board public vessels of the United Stttes, wlio
have committed ofieuses on shore in Japan and China, are held to Ik.*
subject to the jurisdiction of the consul of the country under whose Hajj
they are serving:.

"Jurisdiction over civil disputes is conferred by treaties with Httrneo,
China, Japan, Ottoman Porte, Madagascar, Siam, Morocco, Muscat,
Persia, Tripoli, Tunis, and the Samoan Islands. This jurisdiction is
exclusive in disputes between citizens of the United States. In Persia
suits and dis))utes between Persian subjects and American citizens are
to be heard before the Persian tribunal where the consul is located, and
in the presence of an employe of the consul. In Japan it exten<ls to
claims of Japanese against Americans. In China, Siam, and Samoa the
jurisdiction is joint in controversies between Americans and Chinese, Sia-
mese, 01' Samoans. In Madagascar the exclusive jurisdiction extends
to disputes between citizens of the United States and subjects of Mada-
gascar. In Turkey there can be no hearing in a dispute hetwe»'n Turks
and Americans unless the dragoman of the consulate is present."

U. S. Cou8. Reg., 18bl, ^ 98, ff.

Article XXIX of the same regulations (1881) treat of consular jurisdiction '• in
Oriental, non-Christian, and uncivilized countries," as follows: Jii<liciul
powers; mixed courts; what laws to govern proceedings; forms of pro-
ceedings; limitation of cousular Jiiiisdiitioii ; appeals; marshals, jails, &c.

620

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