A DIGEST rr 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. u. ^ 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 m 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- IV 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, VI 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. IX 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. 4 lb 19, Mar. 4 1850, July 10 1853, ^liir. 4 1857, Mar. 4 1861, Mar. 4 1865, Apr. 15 1869, Mar. 4 1877, Mar. 4 1881, Mar. 4 1881, Sept. 19 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 XI 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. XV 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&. (c) Steamboat Caroline, ^ .50c. (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. (c) Treaty of 1803 (cession of Louisiana). 4 1486. (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. (c) Monroe-Piiiknoy and cognate negotiations, $ 1506. (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. (-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, 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. 13 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 15 § 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. 18 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 19 § 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 20 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 th20 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- 29 § 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, 31 § 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. 32 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). 35 § 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 37 § 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. 39 § 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. 40 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- 41 § 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 43 § 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). 44 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. 45 § 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 47 § 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 51 § 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- 53 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- 53 § 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. 54 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 55 § 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 57 § 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- 58 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 59 ^ 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- 61 § 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- 63 ^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 ConJ4 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. 69 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''^. 70 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. 71 § 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 — 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- 83 § 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. 85 »^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 87 § ,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 89 § 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.4nt 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 93 § 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. 95 § ;)().] 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, 96 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;..'~''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; 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 Conarates 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. 99 ^ 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. "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." 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. 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, 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. (;oniprisinondence 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 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 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. " 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 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 ,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 plearemises 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. "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 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-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, anrayer 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'penarian 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])!, embarkelying 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 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 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 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 t 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 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 indepeniig'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, 18 102. 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 reublicau 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 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 an0 ^^^ 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. 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, aninion 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 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 fineaceful 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 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. 86 98 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 : proceeie 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 declarere-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 unenses 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 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 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, 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 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 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, m 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!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, W4 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 . 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 rle, 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- 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 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 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 '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- 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 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 stateritannic 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, 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 !f 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. 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 maht 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<' adarai)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 aain, see Mr. Evarts, Sec. of State, to Mr. Lowell, Feb. 25, 187. (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. anroteeted. 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.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 chargertiiig- 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 thatclanations 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 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 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 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 ane 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 ; 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 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— 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'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.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 armeh.) 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])Owerinroduced 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 - 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 beinut 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///•«, § 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 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\varh'. 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 diamonanions 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 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 Jle 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 ane 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^ ; 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 abroaun- 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 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<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 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 saiay 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 anan. 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(>ycliama 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- jniislaiiie, 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 aninions. 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