Page images
PDF
EPUB

national 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.
Rel., 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 citizens, 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 29th 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. Robeson that the Lubrowsky brothers should not yield to the order of expulsion, 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 speech of Mr. S. S. Cox, July 31, 1882;
pamphlet, library Dep. of State.

As to persecution of Jews in Roumania, see Senate Ex. Doc. No. 75, 42d Cong., 2d sess.; 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, § 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

ercise with a view to prevent or to inflict 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 forbearance, little likely to be made, and if made, sure to be defeated."

Mr. Cass, Sec. of State, to Mr. Molina, Nov. 26, 1860; 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 movements 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 was 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 New York charged with libeling foreign sovereigns.

Mr. Fish, Sec. of State, to Mr. Roberts, June 1, 1869; MSS. Notes, Spain.

"This Government and people feel nothing but detestation for such publications [prompting assassination and arson in England]. The question whether a journal making publications of the character of those referred 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 Congress 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 how 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 Republic. They naturally have a friendship for their kinsmen in the United Kingdom, and perhaps a passive 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 Republic to maintain with Her Majesty's Government. These considerations have weight and influence; but what is conclusive on the subject is that this Govern

ment 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 Government 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 offenders, 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 this direction."

Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, Nov. 24, 1884; MSS. Inst.,
Great Britain.

It was held in 1794, by Mr. Randolph, when Secretary of State, following the opinion of the Attorney-General, that a libel on the British minister is indictable at common law in the Federal courts.

Mr. Randolph, 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 no 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 Cobbett and others, grossly attacking the King of Spain as the supple tool of 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 former harmony, some of the journals or newspapers in the city of Philadelphia have teemed with the most irritating invectives, couched in the most vulgar and opprobrious 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

lications have an evident tendency, not only to frustrate a reconciliation, but to create a rupture and provoke a war between the sister Republics, and seem calculated to vilify,-nay, to subvert,-all republican Governments whatever.

"Impressed with the duties of my station, I have used some endeavors for checking these evils, by binding over the editor and printer of one of them-licentious and virulent beyond all former exampleto his good behavior; but he still perseveres in his nefarious publications. 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 intercourse, 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 offense to another. Some medals and dull jests are mentioned and represented as a ground of quarrel between the English and Dutch in 1672, 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 attended with all the good effects that were expected from them. However, 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 fashionable, nor the more secure from punishment from being popular.' (See Whart. 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 between the friends of a French and the friends of an English alliance was then at its height, and never was there a party conquest more bitter 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 Bernard'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 Revolutionary 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 Philadelphia, a bar of singular learning and cultivation, as a master in jurisprudence, and as a judge who never permitted himself to be swayed by partisan or personal temper. Nor was there at that time any dissent from the position that if libels on foreign countries were published in the State of Pennsylvania, it was the function of the State of Pennsylvania to prosecute the authors of these libels. Congress, in Mr.

Adams's administration, did not hesitate to pass a statute making 'seditious libels' indictable in Federal courts, but it limited its action to such libels as attacked the Federal system. Libels on foreign powers were left to the action of the several States, and within the jurisdiction of such States they still remain."

6 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 remissions 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."

1 Halleck, Int. Law (by Baker), 407.

III. INTERVENTION 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 Emperors of Austria and of Russia and the King of Prussia, acting as absolute sovereigns, without the intervention of responsible ministers or diplomatic agents. Great Britain took no part in this alliance (although George IV, 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 responsible ministers. The ostensible object of the alliance was the subordination of politics to the Christian religion. The real principle, however, was the establishment of jure divino autocracies, each sovereign incorporating in himself "the Christian religion" as well as supreme political power. Had the three sovereigns who originated the scheme been able to agree, they might have dominated the civilized world. But, from the nature of things, three jure divino autocrats, each claiming for his opinions divine authority, could not be expected to agree permanently; and so it ultimately turned out.

Mr. Canning, in his correspondence with Mr. Rush, our minister in England, in 1823, having suggested that the United States should take decided ground against the intervention of the Holy Alliance in South America, 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 the most momentous which has ever been offered to my contemplation since that of Independence. That made us a nation; this sets our compass and points the course which we are to steer through the ocean of time opening on us. And never could we embark upon it un

« PreviousContinue »