Report of Mr. J. C. B. Davis, agent of the United States at Geneva, Sept. 21, 1872, Papers relating to the Treaty of Washington, IV. 10-11. "The fact that a vessel, built in contravention of the laws of neutrality, escapes and gets out to sea, does not free that vessel from the responsibility she has incurred by her violation of neutrality; she may, therefore, be proceeded against if she returns within the jurisdiction of the injured state. The fact of her having been transferred or commissioned in the meanwhile, does not annul the violation cammitted, unless the transfer or commissioning, as the case may be, was a bona fide transaction." Opinions of Mr. Stämpfli, Papers relating to the Treaty of Washington, 9. QUESTION OF EXTRATERRITORIAL PURSUIT. § 1327. Whether a neutral sovereign is bound to pursue beyond his territorial waters a belligerent vessel fitted out in such waters in violation of his neutrality, has been much discussed. In La Amistad de Rues, 5 Wheat. 390, it was said by Story, J., that when a neutral nation is "called upon by either of the belligerents to act in such cases, all that justice seems to require is, that the neutral nation shall fairly execute its own laws, and give no asylum to the property unjustly captured." On the other hand, it is said by Story, J., in The Marianna Flora, 11 Wheat. 42, that "it is true, that it has been held in the courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our courts for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages." Sir W. Harcourt, in criticising these rulings in Historicus (p. 158), says: "The principle to be deduced from this decision [La Amistad] is, that the neutral power can not be called upon by the injured belligerent to grant him any remedy beyond that which may be exercised over property or persons who are at the time within the neutral jurisdiction. It is true that, in the celebrated case of the Portuguese expedition to Terceira, it was contended by the Duke of Wellington's government that an expedition having frauduiently evaded the English jurisdiction, and started from these shores in violation of the enlistment act, the English Government was entitled to pursue and seize the ships beyond the jurisdiction. And though this opinion receives some countenance from the dicta of the court in the American case of The Marianna Flora, 11 Wheat. 42. nevertheless this doctrine was vehemently, and it is generally thought successfully, controverted by the minority, of whom Sir J. Mackintosh and the late Dr. Joseph Phillimore and Mr. Huskisson were the principal spokesmen (vide Hansard, vol. xxiv, new series). At all events, I think it is quite clear that, whether such a right exists or not, on the part of a neutral, it is not a duty on his part which the belligerent can call upon him to enforce." During the war between Spain and the republics on the west coast of South America, the Peruvian Government, being unable to secure the clearance from the United States of ships of war for which it had contracted with citizens of the United States, entered into a secret convention with the Mosquera government in Colombia, which convention was ratified by President Mosquera November 20, 1866, under which Colombia undertook to purchase the vessels, and, after they arrived within Colombian jurisdiction, to sell and deliver them to Peru on terms which clearly indicated that the sale within the United States by Peru to Colombia was colorable only and in fraud of the neutrality laws of the United States. In pursuance of this convention, the Colombian Government, through its minister at Washington, obtained the release of the steamer R. R. Cuyler, which had been detained at New York for being fitted out in violation of the neutrality laws to make war in behalf of Peru and her allies against Spain, on the assurance that the vessel had been purchased by Colombia and was the property of that Government. When these proceedings became known to the Colombian Congress they were repudiated by that body, and the Colombian Government, President Mosquera having been displaced, disavowed and denounced them. Meanwhile, the Colombian Government was embarrassed by the presence of the vessel in its waters, involving the prospect of compli cations with Spain, and asked that it might be returned to New York under the naval protection of the United States. The Government of the United States declined to take this course, on the ground (1) that the vessel was permitted to depart from the jurisdiction of the United States in reliance upon the representations of the Colombian minister; (2) that, so far as the United States was concerned, the vessel must be considered as a foreign ship belonging to Colombia, and in nowise to the commercial marine of the United States: (3) that there was no law by which the United States could, under these circumstances, extend its control over the vessel in any place whatsoever, so long as she was neither doing nor threatening any wrong to the United States; (4) that the United States could not receive her and cause her to be transferred in American waters to any belligerent. Mr. Seward, Sec. of State, to Mr. Sullivan, min. to Colombia, No. 17, See, also, same to same, No. 39, April 14, 1868, id. 272. With reference to the vessels Quaker City and Florida, which after their departure from the United States, appeared to have been converted into men-of-war in Haytian waters, the Haytian Government intimated a desire that the United States should interfere by force to prevent the insurgents from using them. "It is the settled policy of this Government," said Mr. Fish, in reply, " to remain neutral in all controversies where its own honor or the welfare of its own citizens is not concerned. We would gladly see Hayti at peace with itself and with the world, and enjoying the wonderful advantages which a beneficent Providence has placed within the reach of its people. But we can not shut our eyes to the fact that the unhappy strife going on there partakes of the nature of a civil war, although not recognized as such by us. Both parties have armed forces in the field, each possesses a portion of the territory of the Republic, each controls ports and maintains armed vessels upon the high seas, and conflicts take place between both with varying success. If the United States under such circumstances give to the existing government the moral force of their recognition of it as the rightful ruler of the whole territory of the Republic, and withholds from the insurgents even the recognition of a state of war, all of which we are doing, that is the extent to which a neutral can be asked to go. The United States, reserving always their right to conform their policy to the existing facts as they occur, have, up to this time, steadily pursued the course which I have described towards the government to which you are accredited." Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, No. 16, Oct. 13, As to judicial proceedings subsequently taken in the case of the Quaker Referring to the report of the United States consul at Guayaquil that the American steamer Charona, then in Peruvian waters, was about to be sold to Ecuadorian revolutionists, to be used in hostilities against the established government, Mr. Bayard said: "I do not see how this Government can in any way intervene in this case, The steamer in question is now within Peruvian jurisdiction. To purchase and fit her out there for hostile purposes is an offence, if at all, against the neutrality laws, not of the United States, but of Peru. It is to the Government of Peru that the Ecuadorian Government should address its remonstrances; and against Peru it must H. Doc. 551-vol 7———67 present any claims for damages that it may suffer from the action of the said vessel." Mr. Bayard, Sec. of State, to Mr. McGarr, consul at Guayaquil, No. 20, Mr. Bayard added that, if the steamer was within the jurisdiction of the In 1885 Mr. Jacob Baiz, consul-general of Honduras at New York, complained that the American steamer City of Mexico, a passenger and freight vessel, had taken on board at Belize, when on her ordinary coasting route, some political refugees who, it was supposed. were meditating hostile action against the Government of Honduras. Mr. Baiz also alleged that the City of Mexico was about to carry a quantity of contraband of war from Jamaica to Honduras for the use of the revolutionists; and he asked that American men-of-war in Central American waters be instructed to watch the steamer. Mr. Bayard, who was then Secretary of State, replied that acts such as those complained of, even supposing that they might be considered as breaches of neutrality if committed within the jurisdiction of the United States, could not be imputed to the United States when committed in a foreign port; nor could it, he said, be justly urged that, because the vessel carried the American flag, it was the duty of the United States to send cruisers to watch her in order to prevent her from committing breaches of neutrality while passing from one foreign port to another. "For this Government," said Mr. Bayard. "to send armed vessels to such ports to control the actions of the City of Mexico would be to invade the territorial waters of a foreign sovereign. For this Government to watch its merchant and passenger vessels on the high seas, to stop them if they carry contraband articles or passengers meditating a breach of neutrality, would impose on the United States a burden which would be in itself intolerable. which no other nation has undertaken to carry, and which the law of nations does not impose. Whether the City of Mexico, when she returns to her home port, or those concerned in her or in this particular voyage, may be subject to adverse procedure under our neutrality statutes, I have not deemed it necessary here to discuss or decide." Mr. Bayard, Sec. of State, to Mr. Hall, min. to Central America, No. 325, In August, 1885, Mr. Bayard brought to the notice of the Secretary of the sel's cargo and equipment, nothing indicating an intent to violate the neutrality laws could be found, and that no information of anything tending in that direction had been obtained. He therefore inquired whether there was any objection to granting the vessel a clearance. Mr. Bayard answered that none was perceived; and the steamer duly sailed. (For. Rel. 1885, 138–144.) In connection with the subject of seizure of vessels, in relation to the right of search, see a series of able articles by James C. Welling, in the National Intelligencer, June 1, 1858, and other issues. . In 1898, Mr. Merry, American minister to some of the Central Mr. Sherman, Sec. of State, to Mr. Merry, No. 66, March 25, 1898, MS. 10. DUTY UNDER EXTRATERRITORIAL JURISDICTION. § 1328. In 1867 the Japanese Government, as represented by the Tycoon, sent two commissioners to the United States to purchase ships of war. They bought from the Government of the United States the ironclad ram Stonewall, the price being $400,000, of which the sum of $300,000 was paid, the rest to be transmitted to the United States through the American legation in Japan. The ram was sent out to Japan under Captain George Brown, U. S. N., who was granted leave of absence, to act as the agent of the Japanese |