POSITION OF DEPARTMENT OF STATE. Mr. Sherman to Mr. Rodriguez. DEPARTMENT OF STATE, 49 Washington, April 20, 1897. SIR: I have the honor to acknowledge the receipt of your note of the 17th instant, in which, referring to our conversation of the 16th, you state the desire of your Government to transport troops and munitions in the same State on the Atlantic or the Pacific, with the object of reestablishing order along the Atlantic coast, and that in the event of your Government being able to charter American vessels for this purpose it trusts that the consuls of the United States at Ceiba and Trujillo, or at any other place along the said coast, will put no obstacles in the way. If, as would appear, the proposed chartering of American vessels by your Government contemplates a regular contract with the owners or agents of such vessels, not compulsory but voluntary on their part, it is not perceived how the consuls of the United States could interpose any valid objections to a legitimate transaction which the representatives of the American owners may be legally competent to effect. Copy of this correspondence will, however, be sent to the United States minister to Guatemala and Honduras and to the consular officers in the latter country for their information. Accept, etc., JOHN SHERMAN. Mr. Sherman to Mr. Coxe. DEPARTMENT OF STATE, SIR: I inclose herewith for your information copy of notes from and to Señor J. D. Rodriguez, the minister of the Greater Republic of Central America at this capital, in regard to the desire of his Government to charter American vessels for the purpose of transporting troops and munitions of war with object of reestablishing order along the Atlantic coast. You will observe the Department's reply that if the proposed chartering of American vessels by his Government contemplates a regular contract with owners or agents of such vessels, not compulsory but voluntary on their part, it can not be perceived how the consuls of the United States could interpose any objections to a legitimate transaction which the representatives of the American owners may be legally competent to effect. If, however, there should be any appearance of coercion on the part of the employing Government, the consul's intervention would be justified. The owners of the vessels should also understand that they can not expect the United States to intervene in their behalf should the employing Government fail to pay them for their services, for while the United States would not interfere to prevent an American vessel from voluntarily carrying arms and troops in the service of a Government trying to put down an insurrection, it would leave the vessel and its crews so voluntarily entering into such service to the consequences of establishing such a relation. 18239-05-4 Should a seaman employed for other services desire to be discharged, he ought not to be compelled to serve in the transportation of arms and troops. Respectfully, yours, (Foreign Relations U. S., 1897, p. 331.) JOHN SHERMAN. Conclusion (1). The commander of the United States war vessel should therefore reply that "while the United States would not interfere to prevent an American vessel from voluntarily carrying arms and troops in the service of a government trying to put down an insurrection, it would leave the vessel and its crews so voluntarly entering into such service to the consequences of establishing such a relation." The issue of any such notice of caution and counsel as that issued by Commander O'Neil is not mandatory, though in may be, on occasion, advantageous. (2) In the situation in which the troops had already been landed before the capture of the merchant vessel the relations may be materially changed, provided the charter provision extend merely to the transportation of the troops to the seat of the insurrection, and provided that the merchant vessel has met the provisions of the contract and is no longer connected with the expedition. As this is not war in "the legal sense," but only "in the material sense," the vessel has simply performed a mercantile act for the established Government, and upon its completion the vessel resumes its status as a merchant vessel of the United States. The commander should therefore extend to the vessel the ordinary protection and would not permit capture of the vessel no longer concerned in the insurrection, or if the vessel had been captured after fulfilling its contract he should demand and secure its immediate release. The insurgents are not a responsible body. They have no prize courts or other means of enforcing the laws of war. They are therefore entitled to use force against neutrals only when this is absolutely essential in the actual conduct of active hostilities. Mr. Hay has clearly enunciated the position in a letter to the Secretary of the Navy of November 15, 1902, in which he says. ASYLUM ON MERCHANT VESSEL. 51 But in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters, their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents. The question of the nature and mode of the redress which may be open to the government of the injured foreigners in such a case hardly comes within the purview of your inquiry, but I may refer to the precedents heretofore established by this Government in the enunciation of the right to recapture American vessels seized by insurgents. I have the honor to be, sir, your obedient servant, JOHN HAY. (International Law Situations, Naval War College, 1902, p. 82.) SITUATION III, (d). There is.an insurrection in State X. (d) Mr. Smith, a citizen of the United States, is implicated in this insurrection in State X, and is sent out of the country. Mr. Smith, as a passenger upon a vessel of State Y, subsequently enters a port of State X. While upon the vessel he is arrested by the authorities of State X. He then appeals to the commander of a United States war vessel to obtain his release, stating that the action of the authorities of State X was illegal and unjustifiable. What action, if any, should the commander take? SOLUTION. The commander could not claim the delivery or release of Mr. Smith to him, "but would have to limit his action to the exercise of good offices, so far as possible in conjunction with" other representatives of the United States to secure for Mr. Smith "fair and open process of law, with every opportunity for defense, and if convicted, leniency of treatment." He should, if possible, warn Mr. Smith of the risk he runs in again entering the jurisdiction of State X. It is a general principle that representatives of the United States in a foreign harbor "can neither assist in nor resist the orderly operation of the law of the port." NOTES ON SITUATION III, (d). Questions suggested by the Situation.-Two questions naturally arise in connection with this situation, (a) the question of asylum for insurrectionists upon merchant vessels, and (b) the question of intervention for the protection of those involved in insurrection, who, after being sent out of the State, return to its jurisdiction upon a foreign merchant vessel. The statement by Mr. Smith that "The action of the authorities of State X was illegal and unjustifiable" involves other questions also. The general position is expressed by the Department of State: The instructions to diplomatic officers of the United States provide in regard to citizens of the United States that the diplomatic officers should countenance and protect "citizens" before the authorities "of the foreign country" in all cases in which they may be injured or oppressed, but their efforts 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 occasions, to maintain and promote all rightful interests and to protect all privileges that are provided for by treaty, or are conceded by usage. If representations made to the authorities of the countries fail to secure proper redress the case should be reported to the Department of State. The vessel upon which Mr. Smith is a passenger belongs to State Y. The commander of the war vessel of the United States has, of course, no jurisdiction over this vessel under ordinary circumstances. He might at any time use his good offices to prevent, so far as possible, injustice to a citizen of the United States. After his arrest Mr. Smith is within the jurisdiction of State X. The question then becomes one between the United States and State X, and if the arrest is illegal there may also be a case between State Y and State X. Whether Mr. Smith, who has been concerned in stirring up opposition against State X, can claim any immunity from the fact that he is on a merchant vessel or a passenger vessel of a foreign state within a port of State X is one of the points to be settled. The commander of the war vessel would be justified in any case in demanding that the ordinary procedure for arrest of offenders against State X be followed, so far as the exigencies of the disturbed condition of State X permitted. Whether he could demand more than this and a fair trial for the offense committed, involves the matter of asylum for political offenders upon private vessels of a foreign state in the time of an insurrection within a given state. CASE OF GENERAL BARRUNDIA. 53 (a) The question of asylum for insurrectionists upon merchant vessels. The opinions rendered at various times on the subject are not entirely in accord. The Barrundia case.-The case of General Barrundia has been particularly discussed. In a long dispatch bearing the date of November 18, 1890, Mr. Blaine discusses the case of General Barrundia, who had been shot while resisting with force arrest on board the Pacific mail steamer Acapulco, sailing under the American flag and plying between Pacific ports. General Barrundia had secured passage for Panama, and had embarked at a Mexican port. He was a political exile from Guatemala. The captain of the Acapulco requested of Mr. Mizner information as to what he should do in reply to the Guatemalan demand for the arrest of General Barrundia when the Acapulco anchored in a Guatemalan port. After a telegram, which the captain of the Acapulco did not regard as sufficient, Minister Mizner sent to the captain of the Acapulco the following letter: Mr. Mizner to Captain Pitts. UNITED STATES LEGATION, Guatemala, August 27, 1890-10.30 p. m. SIR: If your ship is within 1 league of the territory of Gautemala, and you have on board Gen. J. M. Barrundia, it becomes your duty, under the laws of nations, to deliver him to the authorities of Gautemala upon their demand, allegations having been made to this legation that said Barrundia is hostile to and an enemy to this Republic. Guaranties have been made to me by this Government that his life shall not be in danger, or any other punishment inflicted upon him than for the causes stated in the letter of Señor Anguiano to Consul-General Hosmer, dated yesterday. I have, etc., Capt. W. G. PITTS, LANSING B. MIZNER, Commanding Pacific M. S. S. Co.'s Steamship Acapulco. (For. Relations of U. S., 1890, p. 85.) |