"A convention was concluded at Madrid on the 5th of March, 1860, establishing a joint commission for the final adjudication and payment of all the claims of the respective parties. By this the validity and amount of the Cuban claims were expressly admitted, and their speedy payment was placed beyond question. The convention was transmitted to the Senate for their constitutional action on the 3d of May, 1860, but on the 27th 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, cannot be positively known. This, as stated and believed at the time, was because the convention had authorized the Spanish Government to present 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 respect it was placed on the same footing with all the other claims of the parties, with the exception of the Cuban claims. All the Spanish Government 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 provision. "It was most probably the extreme views of the Senate at the time against slavery, and their reluctance to recognize it even so far as to permit 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 objections in the Senate arose from the Amistad claim, made a formal offer to remove the difficulty 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. "The case of the Rebecca is one of a number which have lately happened in various parts of the world under the Spanish or SpanishAmerican 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 documents or cargo do not conform to the rules laid down for regular direct importations. 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 understanding 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. Mexico. MSS. Inst., 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 harbor," "could scarcely be said, with strict propriety, to have been in Mexican waters." Mr. Frelinghuysen, Sec. of State, to Mr. Morgan, May 17, 1884. MSS. Inst., 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 Department, 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 see Mr. Frelinghuysen, 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 in such port either for smuggling' or for bringing goods into the port without proper papers.' "I contend that this vessel was not so liable, and to have seized and confiscated the Rebecca under the circumstances of her enforced entrance into Tampico appears to have been a peculiar and unreasonable hardship. It has been frequently held by this Government, in conformity with repeated rulings of the courts in similar cases, that casus or unavoidable necessity is a defense to any charge of invasion of custom-house regulations." Mr. Porter, Acting Sec. of State, to Mr. Jackson, Sept. 14, 1885. MSS. Inst., Where goods are brought by superior force, or by inevitable necessity, into the United States, they are not deemed to be so imported as necessarily to attach the right to duties. If, however, such goods are afterwards sold or consumed in the country, or incorporated in the general mass of its property, they become retroactively liable to the payment of duties. Brig Concord, 9 Cranch, 387. Alleged excuse of distress repelled, on libel under the non-intercourse acts, and condemnation pronounced. The New York, 3 Wheaton, 59. Under the act of February 28, 1803, § 2, the master of an American vessel which touches at a foreign port to obtain advices, but does not enter nor do any business there, is not bound to deposit the register with the cousul of the United States; such presence in port is not an "arrival" within the meaning of that act. Harrison v. Vose, 9 Howard, 372. Where the detention of a foreign merchant vessel in port was caused by her resistance to the orders of the properly-constituted authorities, whom she was bound to obey, she preferring such detention to a clearance upon the conditions imposed, it was ruled that her owner, a subject of Prussia, is not entitled to any damages against the United States under the law of nations or the treaty with that power. U. S. v. Diekelman, 92 U. S., 520. The burden is on the party setting up necessity. The Major Barbour, Blatch. Pr. Ca., 167; The Sunbeam, id., 316, 656; The Diana, 7 Wall., 354. On the requisition of the British minister, a British vessel and cargo which have been wantonly and feloniously taken into an American port in violation of our revenue laws, and there seized by the officers of the port for such violation, should be restored to an innocent owner. The forfeitures and penalties prescribed by our laws have never been inflicted on owners of vessels which have been brought within our jurisdiction by others' crime. 1 Op., 509, Wirt, 1821. "A ship or vessel, on the high seas, in time of peace, and engaged in a lawful voyage, is, by the law of nations, under the exclusive jurisdiction of the state to which her flag belongs; and if forced by stress of weather, or other unavoidable cause, into a port of a friendly power, she would lose none of the rights appertaining to her on the high seas; but, on the contrary, she, with her cargo and persons on board, including their property and all the rights belonging to their personal relations, would be placed under the protection which the law of nations extends to the unfortunate in such cases." Mr. Calhoun's speech on the case of the brigs Comet, Emporium, and Enterprise, March 13, 1840; 3 Calhoun's Works (by Crallé), 465. For necessity in other relations, see infra, § 50. XVI. ARMING MERCHANT VESSELS. § 39. As to privateering, see infra, §§ 380–384. "In answer to your request for an expression of opinion in regard to Mr. Ogden's question whether a vessel which he is said to be fitting out for a trading voyage to the South Sea Islands, can carry two guns and other arms for protection and defense against the natives, I am not aware of any international prohibition or of any treaty provision which would prevent a vessel trading amid the groups of islands of the South Sea from carrying a couple of guns and arms for the proper and necessary protection of the vessel against violence on the part of lawless or partially civilized communities, or of the piratical crews which are represented to occasionally frequent those waters, providing always that the vessel carrying such guns and arms itself be on a lawful voyage and be engaged in none other than peaceful commerce, and that such guns and arms be intended and be used solely for the purpose of defense and of self-protection." Mr. Fish, Sec. of State, to Mr. Morrill, Feb. 8, 1877. MSS. Dom. Let. But a merchant vessel using arms for acts of destruction on the high seas may be, unless duly commissioned for the purpose, a pirate. Infra, § 380. The Revised Statutes provide in this relation as follows: "SEC. 5289. The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of the vessel and cargo on board, including her armament, conditioned that the vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace." The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports; it only requires the owners to give security that such vessels shall not be employed by them to commit hostilities against foreign powers 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 communication 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 interruption, 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 guarantee was conditioned on the managers making regulations "not contrary to the spirit and intention of the convention," and to the withdrawal six months' notice is requisite. It is further provided (Article VIII) that the contracting parties "having not only desired, in entering into this convention, to accomplish a particular object, but also to establish 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 America, 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 guarantee. This treaty is the only instance in which the United States has consented to join with any European power in the management of political interests in the western hemisphere; and the treaty is remarkable, not merely because it is a departure from the settled policy of the United States not to sanction any European interference in the affairs of America, 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. Hereafter, in §§ 57, 72, will be considered the general policy of the United States to which this is an exception, and in §§ 287, , the questions of international law immediately arising from our relations to the isthmus. It will also be hereafter shown that so far as the Clayton-Bulwer treaty (of 1850) relates to the then recent projected Nicaraguan canal, it is now obsolete, that canal having been abandoned, 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 ff. |