"The U. S. S. ________ has been ordered to ________ to show the flag and protect American interests."—News item.
In preparing for the manifold duties they are called upon to perform, naval officers should not overlook the means of fitting themselves for the work vaguely called "protecting American interests." The difficulty attending this duty lies partly in its vagueness and partly in the lack of instructions. "The conditions," says the blue book, "calling for . . . . cannot be defined beforehand, but must be left to the sound judgment of responsible officers, who are to perform their duties in this respect with all possible care." Armed with general orders of this kind, With nothing even between the lines to guide him, the officer in the far-away port approaches his task, while at home the "man in the street" looks on with interest, ready to applaud success or condemn defeat.
On the shelves of some of the least used corridors in the libraries at Annapolis and Washington are many undisturbed volumes whose titles when freed from dust stand out as Senate Documents, Congressional Pamphlets, Diplomatic Correspondence, and the like, in which the seeker after light, if he succeed in passing the "best sellers" in the pleasant reading-room, will find much that will interest as well as a little that may confuse him. In one of these curious volumes of forgotten lore may be found some very instructive correspondence telling the story of one José Dolores Gomez, a gentleman of Nicaragua. The writers were leaders in their time, and their words, we may be sure, catch and hold the attention. Let us begin with a letter from Mr. T. F. Bayard, Secretary of State of the United States, to Mr. ________ Hall, United States minister to Central America, dated March 12, 1885:
"It appears that Mr. Gomez, who is said to be a political fugitive from Nicaragua, voluntarily took passage at San José de Guatemala for Punta Arenas, Costa Rica, on board the Pacific Mail steamship Honduras, with the knowledge that the vessel would enter en route the port of San Juan del Sur, Nicaragua.
“The government of Nicaragua, upon learning of this fact, ordered the commandant of the port of San Juan del Sur to arrest Gomez upon the arrival of the Honduras at that port. At the same time the government requested the U. S. consul at Managua to recommend to the captain of the Honduras to make no resistance. This the consul declined to do, having received from Mr. Hall, the American minister, instructions to say to the Nicaraguan minister of foreign affairs 'that our government never has consented and never will consent to the arrest and removal, from an American vessel in a foreign port, of any passenger in transit, much less if offense is political.' . . . .
"It is clear that Mr. Gomez voluntarily entered the jurisdiction of a country whose laws he had violated. Under the circumstances it was plainly the duty of the captain of the Honduras to deliver him (Gomez) up to the local authorities upon their request.
"It may be safely affirmed that when a merchant vessel of one country visits the ports of another for purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that 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. No such exemption is made in the treaty of commerce and navigation concluded between this country and Nicaragua on June 21, 1867."
Before proceeding to the next case it may be well to quote from a letter from Mr. Hall to Secretary Frelinghuysen, Mr. Bayard's predecessor, under date of February 10, 1885, in which, despite his firm stand in his message to the consul, Mr. Leavitt, he seemed somewhat uncertain of his position:
"It seems desirable," said Mr. Hall, "that there should be more definite instructions for such cases; under certain circumstances there can be no doubt as to the right to arrest a person, who, like Gomez, voluntarily enters the jurisdiction of a State whose laws he has violated, even should he be in transit for another State and on board of a foreign vessel."
The following letter written by the consul to the minister, February 3, 1885, shows how the captain of the Honduras fared: “I have learned that the government requested the captain of the Honduras to deliver up Gomez, but he declined. He was then requested by the government to go ashore. This he declined to do. He then was requested not to sail for twenty-four hours. This also he declined, and the government alleges that he sailed in two hours without a license from the commandant of the port. For these alleged offenses, he, the captain, has been tried by the Nicaraguan government and found guilty, but I have not learned what sentence has been given."
The clear decision given by Mr. Bayard in this case seems, at first glance, to be the long-looked-for guide that is to make all plain sailing in the future, but wait. There is another book on the shelf, a twin book with a twin story that is treated, however, somewhat differently. The story, which concerns General J. Martine Barrundia, of Guatemala, is begun with an extract from President Harrison's second annual message, December 1, 1890. . . . . The killing of General Barrundia on board the Pacific mail steamer Acapulco, while anchored in transit in the port of San Jose de Guatemala, August 28, 1889, demanded careful inquiry. Having failed in a revolutionary attempt to invade Guatemala from Mexican territory, General Barrundia took passage at Acapulco for Panama. The consent of the representatives of the United States was sought to effect his seizure. The captain of the steamer refused to give up his passenger without a written order from the United States minister. The latter furnished the desired letter, stipulating as the condition of his action that General Barrundia's life should be spared and that he should be tried only for offenses growing out of his insurrectionary movements. This letter was produced to the captain of the Acapulco by the military commander at San Jose as his warrant to take the passenger from the steamer. General Barrundia resisted capture and was killed. It being evident that the minister had exceeded the bounds of his authority in intervening, in compliance with the demands of Guatemala, to authorize and effect, in violation of precedent, the seizure on a vessel of the United States of a passenger in transit charged with political offenses, in order that he might be tried for such offenses under what was described as martial law, I was constrained to disavow the minister's act, and recall him from his post."
At 6.30 p. m., August 27, the American minister sent the following telegram: "General Barrundia is on the Acapulco. Guatemala alleges that he is hostile, and, being in their waters, can arrest him. I think that they have the right." On the next day, the 28th, the local authorities went on board and presented the communication from the minister. General Barrundia resisted arrest and was killed.
Secretary Blaine wrote a letter to the American minister, November 12, 1889, from which the following extracts are made:
“. . . . A still later case is that of Gomez, in Nicaragua, to which you advert as more than justifying your course in respect to General Barrundia. I have carefully examined that case, and am compelled to entertain a very different opinion. Mr. Bayard, then Secretary of State, in his instruction to the American minister, March 12, 1885, said: 'Under the circumstances, it was plainly the duty of the captain of the Honduras to deliver him (Gomez) up to the local authorities upon their request.' By this, I take it, Mr. Bayard expressed the opinion that the captain, being within the local jurisdiction of a foreign State, might not resist the orderly application of its law to a passenger on board his ship. There is no suggestion that it was the duty of the United States minister to intervene or express consent to effect the arrest, either with or without conditions as to the nature of the proceedings against the accused or the penalty to be inflicted. I have yet to find in the records of this department the faintest trace of any instruction to that end."
In the above it appears that Mr. Blaine's objection was made not to the principle as laid down by Mr. Bayard but to the minister's interference in the matter.
"But," continues the letter, "between the general doctrine as broadly laid down by my predecessor in office and your action in respect to General Barrundia's seizure there is an impassable space." Does this mean that the general doctrine was all right and the conduct of the minister all wrong? Again, "I am aware that it may be said that after all you merely advised the captain of his duty. But the captain did not simply ask advice. There is not the slightest suggestion that Captain Pitts proposed to act otherwise than by your orders and under your responsibility. It was under these circumstances that you wrote the letter which became in the hands of a Guatemalan official the pretext of the attempted seizure of General Barrundia 'To surrender political offenders,' said Mr. Marcy, 'is not a duty, but, on the contrary, compliance with such a demand would be considered a dishonorable subserviency to a foreign power and an act meriting the reprobation of mankind.' It is believed that these declarations express the sentiment of the civilized world, and it is certain that any departure from them would be execrated by the people of the United States. . . . . . For your course, therefore, in intervening to permit the authorities of Guatemala to accomplish their desire to capture General Barrundia, I can discover no justification."
The Secretary of the Navy wrote to the naval authorities as follows: " . . . . Whenever any passenger, whether American or foreigner, is received on board an American vessel, he comes under the American flag, and is entitled to the protection and security of which that flag is the guaranty. At sea this inviolability has in time of peace no exemption or qualification. In foreign ports it is qualified only by the legal exercise of the territorial authority." Aye, that is just the point. The part in italics (which are mine) contains the gist of the whole matter, but no further light is spread there where, it seems to me, it is needed. The Secretary continues: "Under these circumstances, on the approach of the steamer, before she cast anchor in the port, it was the plain duty to proceed at once to meet the steamer to warn the captain of the danger and to offer to his passenger, should he desire it, an asylum on board ship. Such an act could have violated no rights of the territorial government."
Let us consider this a moment. If the authorities were confident of their rights regarding the question of territorial jurisdiction, the right of interference to prevent seizure while in the port, as expressed in the views of Mr. Marcy and endorsed by Mr. Blaine, was there any need of putting to sea and evading the issue? Would not the act of meeting the steamer outside the port have been, in effect, an acknowledgment of the port's exclusive jurisdiction in the matter?
Again, "Even after the arrival of the Acapulco in port, the power of discretionary action was by no means taken away. There were, in particular, three points in which the existing situation imposed a positive duty, namely:
"I. To make a full investigation of the facts.
"2. To prevent with such assistance as might be found necessary any proceedings on board the steamer calculated to endanger the safety of those on board.
"3. If, upon examination, it appeared that a seizure was to be attempted without proper warrant, or that the proceedings were merely in the nature of a pretext to secure the person of the political fugitive, to offer him, in accordance with humane and well established practice in the case of refugees whose lives are in danger, the hospitality of your own vessel."
A study of the points, imposing, according to the Secretary, positive duties, shows that a strict carrying out of the provisions of the second would have amounted to a direct interference and prevention of the seizure (for surely the safety of the fugitive was in danger), a proceeding which the guarded language does not, in so many words, direct. In the third point a certain line of action is suggested in case a seizure is attempted without proper warrant, leaving it to be inferred that in the other event, that of the presentation of a proper warrant, some other course, not mentioned, would be in order. Here again the winds are variable in force and direction, as a reference to the U. S. Naval Regulations, p. 87, art. 344, will show: "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum." Again, on the same page, in article 340 (I), we find more food for thought, something else to give us pause: "He (the commander-in-chief) shall exercise great care that all under his command scrupulously respect the territorial authority [the authority conceded by Secretary Bayard] of foreign civilized nations in amity with the United States."
A reading of Mr. Blaine's letter to the American minister does not make it quite clear whether the exact mistake of the latter was in interfering to aid the seizure, or in interfering in any manner whatever. In the latter case it would seem hardly fair to the captain of the Acapulco to let his appeals for instructions go unheeded while there was a representative of his country in Guatemala City charged with the protection of American interests. Old-fashioned people might think that the whole burden of decision should not be left, in such cases, to the captain of the merchant steamer, but that it should be shared, at least, with a civilian official familiar with the law.
So here we are on poor holding ground again. When the trained diplomats find themselves at fault in the execution of their difficult tasks, and cry for "more definite instructions," it is small wonder that the laymen, the blunt sailors, sometimes feel a bit wabbly in the legs when taking a walk on shore in the strange fields of diplomacy.
A third book relates still another story, which, while having no connection with those already told, may still serve to show the infinite variety of cases and treatments filed away on these shelves. President Cleveland's second annual message, December 3, 1894, contains the following: " . . . . It appearing at an early stage of the Brazilian insurrection that its course would call for unusual watchfulness on the part of this government, our naval force in the harbor of Rio de Janeiro was strengthened. Our firm attitude of neutrality was maintained to the end. The insurgents received no encouragement of eventual asylum from our commanders, and such opposition as they encountered was for the protection of our commerce, and was clearly justified by the public law."
“. . . . For some months one, and during part of the time two, of our naval ships have been stationed at Bluefields for the protection of all legitimate interests of our citizens. In September last the government at Managua expelled from its territory twelve or more foreigners, including two Americans, for alleged participation in the seditious or revolutionary movements against the Republic of Bluefields. . . . . Our naval commanders at the scene of these disturbances by their constant exhibition of firmness and good judgment contributed largely to the prevention of more serious consequences and to the restoration of quiet and order."
The above may seem all easy enough, but the whole matter of the last paragraph lies, I think, in the italicized word legitimate. The solution of all puzzles is easy when we know the key, which consists, sometimes, of one word.
“. . . . The government of Salvador having been overthrown by an abrupt popular outbreak, certain of its military and civil officers, while hotly pursued by infuriated insurgents, sought refuge on board the United States war ship Bennington, then lying in a Salvadorean port. Although the practice of asylum is not favored by this government, yet in view of the imminent peril which threatened the fugitives and solely from considerations of humanity they were afforded shelter by our naval commander, and afterwards under our treaty of extradition with Salvador for trial on charges of murder, arson, and robbery I directed that such of them as had not voluntarily left the ship be conveyed to one of our nearest ports where a hearing could be had before a judicial officer, in compliance with the terms of the treaty. On their arrival at San Francisco such a proceeding was promptly instituted before the United States district judge, who held that the acts constituting the alleged offenses were political, and discharged all the accused except one Cienfuegos, who was held for an attempt at murder. Thereupon I was constrained to direct his release for the reason that an attempt to murder was not one of the crimes charged against him, and upon which his surrender to the Salvadorean authorities had been demanded."
One of the results of the Salvadorean affair was the substitution by the Secretary of the Navy, August 15, 1894, of article 288, U. S. Navy Regulations, 1896 (now article 344, 1909) for article 287 of 1893.
In the search for precedents it is well to be cautious, for customs sanctioned in the early days may now be forbidden by regulations. One of the many points to be considered is that concerning the relations between envoys and naval officers. A former naval secretary has said (1889): "In the performance of his duties under the law the responsibility of a naval officer is complete, nor can anything but the orders of his superior shift the burden to another. This familiar principle governing the relations of envoys and naval commanders is well understood."
This principle is now supported in the blue book in article 337, which reads, "Although due weight should be given to the opinions and advice of such representatives [diplomatic representatives of U. S.], a commanding officer is solely and entirely responsible to his own immediate superior for all official acts in the administration of his command." While that principle may have been well understood in 1889, the contrary principle was in force shortly after the close of the Civil War, as is shown by the following letter written August 27, 1867, by the Hon. Peter J. Sullivan, American minister to Colombia, to Rear-Admiral Jas. S. Palmer, U. S. N., commanding the North Atlantic Squadron:
"Sir: . . . . Until further instructions you will repair forthwith to, and keep strict surveillance over, the steamer Rayo, her armament and other property, so far as to prevent her from being used for piratical or other unlawful purpose, detrimental to the rights and dignity of our government. You will report to me from time to time your action and the course of events in this case." Mr. Sullivan's letter concludes: " . . . . From the general report which I have had of your sound discretion and great ability as a naval commander, I trust you."
Rear-Admiral Palmer, struggling, no doubt, with the difficulties and annoyances inseparable from the lot of one compelled to serve two masters, must have found consolation in that part of the minister's letter that gave assurances of trust in the naval officer.
A correspondent, Mr. Carrasco, having inquired whether, if he should take passage at New York for Mexico in an American passenger boat, which stopped for a few hours at Havana, he would receive energetic protection from the Department of State in case his arrest should be attempted by the authorities of that city during the stay of the vessel in port, Mr. Bayard, July 16, 1886, replied:
"While I am far from saying that an arrest by Cuban authorities of an American citizen, in an American passenger vessel, transiently in a Cuban port, the charge being a political offense, would be looked upon with indifference by this Department, yet I would advise you not to put yourself in a situation where you would be exposed to such arrest."
Thus we hear the cry on all sides for directions, for instructions. At the risk of being tedious I shall quote at length a letter from Secretary of State Gresham, written December 30, 1893, to Mr. Huntington, an official of the Pacific Mail Steamship Company, because I think it approaches more nearly than anything else I can find an answer to the appeal that comes from official and civilian alike. Don't skip it, gentle reader, it is worth while.
. . . . You suggest in your letter of November 11, 1893, that a definite policy in respect to surrendering accused criminals when claimed by the local authorities in a port of call be outlined for the guidance of your commanders.
"It is not practicable to lay down a fixed rule applicable to the varying conditions in such cases. As a comprehensive principle, however, it is well established in international law that a merchant vessel in a foreign port is within the local jurisdiction of the country with respect to offenses or offenders against the laws thereof, and that an orderly demand for surrender of a person accused of crime by due process of law, with exhibition of a warrant of arrest in the hands of the regularly accredited officers of the law, may not be disregarded nor resisted by the master of the ship. On the same voyage when the Amapala incident occurred, Captain Dow appears to have acted on this principle in allowing the arrest at other ports, on proper judicial warrant, of two passengers accused of crime. That the passenger may have come on board at the port where the demand is made, or at another port of the same country, is immaterial to the right of local jurisdiction.
"Arbitrary attempts to capture a passenger by force, without regular judicial process, in a port of call, may call for disavowal when, as in the present case at Amapala, the resort to violence endangers the lives of innocent men and the property of a friendly nation. Whether, if force be threatened, the master of the vessel is justified in putting in jeopardy, by his resistance, the interests committed to his care, must be largely a question for his discretion. It is readily conceivable that the consequences of futile resistance to overpowering force may be such as to make the resistance itself unwarrantable.
"The so-called doctrine of asylum having no recognized application to merchant vessels in port, it follows that a shipmaster can found no exercise of his discretion on the character of the offense charged. He is not competent to determine whether the offense is one justifying surrender, or whether the evidence in the case is sufficient to warrant arrest and commitment for trial, or to impose conditions upon the arrest. The diplomatic and consular representatives of the United States in the country making the demand are as incompetent to order surrender by way of quasi-extradition as the shipmaster is to actively deliver the accused.
"If it were generally understood that the masters of American merchantmen are to permit the orderly operation of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable on the one hand that occasions of arrest would be less often invited by the act of the accused in taking passage with a view to securing supposed asylum, and on the other hand, that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the part of this government."
That this letter of Secretary Gresham's is an important State paper is shown by the fact that on March 22, 1898, Mr. Sherman, then Secretary of State, instructed Mr. Merry, American minister to Nicaragua, that he was to be guided by it.
So there the matter of territorial jurisdiction, the right to prevent seizures, rests. "Rests" is the proper word, for the question is not dead but sleeping. A pistol fired in the street of a Central American village may waken it, and to-day, any commanding officer, ambitious to acquire fame on the uncharted seas of American interests, will, in spite of cables and wireless plants, be as free to act, as untrammeled by instructions, as were his predecessors of twenty and thirty years ago.
I think the foregoing is enough to show the perplexing nature of the situations with which naval officers are often confronted, situations that make large drafts upon that inexhaustible stock of discretion and sound judgment with which both the State and Navy Departments seem so ready to credit them, and upon which they so often rely.
This paper is not written in a spirit of criticism, but is a groping for the switch that turns on the light, and an attempt to indicate the necessity of careful study in the field that has to do with the protection of American interests. In the absence of any instructions covering even in a general way the principles in question, I dare say it would not be far wrong, when in doubt, to fix upon, as a general guide, a line of action that ascribes to our flag even more power than it rates, and to leave the fine points of law to be settled by the seniors at Washington, who, we have a right to assume, have at hand the precedents and authorities and training to guide them to just decisions. Finally, if apologies must be made, it is easier and less humiliating to make them to a foreign flag than to our own.