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with either belligerent, or, if they do so, that it should be distinctly known that they thereby act beyond all effective responsibility of their own Government. Your discretion will doubtless show you how far it may be opportune to go in the direction of dissuading any citizen of the United States from taking sides in the present contest. but whatever you may do should be marked with the most obvious impartiality." (Id. 161.)
The question raised by Mr. Young obviously is a very important one, and it may be proper to consider whether sec. 4102 covers, or was intended to cover, the whole ground of jurisdiction in the consular courts in extraterritorial countries to prevent and punish unneutral acts. Those courts possess general jurisdiction to enforce the criminal statutes of the United States as to acts done by American citizens within the consul's jurisdiction. It may be doubted whether the distinction drawn between the power to "punish" and the power to "forbid " is material, where the act is in reality forbidden and made punishable by law. In considering the question whether a consul in an extraterritorial country has jurisdiction to enforce there the neutrality statutes, the fact should be borne in mind that a negative answer necessarily would signify either that the American citizen is in such matters subject to the local jurisdiction, which in the case before us is that of China, or that he is, when in such a country, under no legal responsibility to refrain from making war upon it, unless his act takes the form of insurrection or rebellion. In view of these very grave considerations, it may be observed that the language of the formal instruction to Mr. Young was much less definite and positive than that of the telegraphic response.
"Your memorandum does not suggest that the coming of armed revolutionary expeditions to Constantinople is apprehended; but even in the extreme supposition that citizens of the United States might attempt to enlist abroad for the purpose of making war upon any foreign power with which the United States are at peace, the United States minister is authorized in countries where the United States possess extraterritorial jurisdiction to issue writs and otherwise to prevent such enlistments, carrying out this power by resort to such force belonging to the United States as may at the time be within his reach (Rev. Stat., sec. 4090). Under this provision, the admiral commanding the United States fleet on the European station was instructed nearly a year ago to cooperate heartily with our minister in Turkey in enforcing all writs issued by the latter to prevent the entry into Turkey of any American citizens as armed revolutionists. As your communication has particular reference to the situation at Constantinople, it is proper to remark that the admiral's instructions can only hold good in fact at ports or places visited by the vessels under his orders, so that in the absence of a dispatch boat at Constantinople subject to his directions the hands of the United States minister are tied."
Mr. Olney, Sec. of State, to Moustapha Bey, Turkish min., Nov. 11, 1896,
VII. MEASURE OF EXERTION.
1. REQUISITE DILIGENCE.
During the wars immediately preceding the Peace of Amiens, many claims arose on the part of citizens of the United States against Spain on account of captures made either by French privateers fitted out in Spain or by French privateers in Spanish waters, as well as on account of condemnations by French consuls or other French agents in Spanish jurisdiction. The Spanish Government denied its liability, first, on the ground that it was unable to prevent the acts complained of, and, secondly, on the ground that the primary liability rested on France, and that as France was (so the Spanish Government contended) released from any liability for the claims by the convention with the United States of Sept. 30, 1800, the secondary liability of Spain was released. The United States, on the other hand, maintained (1) that Spain was primarily liable; (2) that the renunciation of the convention of 1800 extended only to claims for which France was primarily liable, and (3) that the inability of Spain to prevent the acts complained of was not established. Mr. Madison, in an instruction of Oct. 25, 1802, took the ground, as to the last point, that, in order to excuse a sovereign for permitting a violation of his neutrality, it must "be shown that the force or danger which destroyed the free agency really existed, and that all reasonable meanst were employed to prevent or remedy the evil resulting." By the treaty of February 22, 1819, the United States renounced its claims against Spain and undertook to compensate its own citizens to the amount of $5,000,000. Among the claims embraced in this settlement were those "on account of prizes made by French privateers, and condemned by French consuls, within the territory and jurisdiction of Spain."
Mr. Marshall, Sec. of State, to Mr. Humphreys, min, to Spain, Sept. 8, 1800, MS. Inst. U. States Ministers, V. 358; Mr. Madison, Sec. of State, to Mr. Pinckney, min. to Spain, Oct. 25, 1802, id. VI. 57; same to same, Feb. 6, 1804, id. 196; Mr. Madison to Mr. Monroe, Oct. 26, 1804, id. 256.
For an opinion of Messrs. Ingersoll, Rawle, McKean, and Duponceau, in support of Spain's alleged release by the French convention of 1800, see Am. State Papers, For. Rel. II. 605.
For comments on this opinion, see Moore, Int. Arbitrations, V. 4491--
See Bosanquet, S. R. C., and Tangye, R. T. G., The Burden of Neutrality.
"The Government of the United States, having used all the means in its power to prevent the fitting out and arming of vessels [in
this case privateers under South American flags, but alleged to have been manned with American citizens to cruise against Portugal] in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of the Union, cannot consider itself bound to indemnify individual foreigners for losses by captures over which the United States have neither control nor jurisdiction."
Mr. Adams, Sec. of State, to Mr. Correa de Serra, Mar. 14, 1818, MS.
Nov. 7, 1850, the Portuguese minister at Washington, renewing a claim
The Spanish minister at Washington alleged that the vessels known as the Perit, the Catherine Whiting, the H. M. Cool, the Jonathan Chase, the George B. Upton, and the Hornet had been engaged in aiding the insurrection in Cuba in such a way as to violate the neutrality laws of the United States, and expressed the opinion that the owners of the vessels should be made to feel the legal consequences of breaking the laws established for the maintenance of the duties of "international neutrality." He also complained that the district attorney at New York had refused to proceed against some of the vessels or persons for technical reasons, and also that against some of the individuals named no proceedings could be maintained because, under the operation of the proclamation of the President of October 12, 1870, all offenses against the international or municipal laws referred to therein were pardoned or condoned. Mr. Fish, in reply, denied that the officials of the United States had manifested any want of readiness to prevent attempted violations of the law. He referred
to the contest in Cuba and to the decrees which had been issued by the Spanish authorities interfering or threatening to interfere with the rights of citizens of the United States. In order that such questions might be settled, special authority was conferred on the Spanish minister at Washington, but this authority was later withdrawn by the Spanish Government, " in view," as the United States was afterwards officially informed, "of the favorable situation in which the island of Cuba then was." This "favorable situation," said Mr. Fish, was assumed to refer to the supposed extinction of organized armed resistance to Spanish authority in Cuba. Under these circumstances, it seemed to the President that the restraints upon the commerce of the United States and upon the free movements of their citizens should no longer be imposed, and that preventive or punitive proceedings against individuals or vessels should not be continued, when the cause which prompted the alleged illegal acts was supposed to have disappeared. It was, said Mr. Fish, believed to be in harmony with the humane policy which had characterized the United States that a suspension of the rigid prosecution of offenses (partaking of a political character) growing out of sympathy with a political struggle in a neighboring island might well take place, and it was hoped that this benevolent example might be reflected in the policy of Spain towards Cuba, and that the United States "would be relieved from the disagreeable duties which it had performed for about two years." In the course of his representations, the Spanish minister had referred to the declaration of Mr. Fish, in an instruction to Mr. Motley, of September 25, 1869, that the international duty of the British Government in respect of the enforcement of its neutrality during the civil war in the United States was above and independent of the municipal law of England and was governed by the law of nations. Commenting upon this citation, Mr. Fish said that "these doctrines were applied to a condition when a state of war was recognized by the neutral," and that the grievances of which the United States complained were caused by the acts of a government "which had formally recognized a state of war between the United States and their armed opponents." In conclusion, Mr. Fish inquired whether Spain regarded her position towards the insurgents of Cuba as being the same as that which the United States occupied toward their insurgent citizens at the time of the occurrences complained of.
Mr. Fish, Sec. of State, to Mr. Lopez Roberts, Spanish min., Dec. 28, 1870,
For the instruction of Mr. Fish to Mr. Motley of Sept. 25, 1869, see For.
armed and had on board a quantity of ammunition and a crew of sixteen persons and had no papers except a document said to be a commission of her officers, took her in tow and carried her into Newport. The Department of State, replying to a request for its views, said that, as the Cuban insurgents had not been acknowledged as belligerents, any vessel claiming to act under their authority was liable to be proceeded against for piracy, and that, although it was not alleged that the Pioneer had committed any piratical act, it was deemed advisable that she should be detained till the full report of the captain of the revenue cutter should have been received, since there might have been a violation of the act of 1818 by the acceptance of a commission. The case was subsequently submitted to the Attorney-General, the detention of the vessel meanwhile continuing. (Mr. Boutwell, Sec. of Treas., to Mr. Hale, Act. Sec. of State, July 9, 1872, MS. Misc. Letters; Mr. Hale, Assist. Sec. of State, to Mr. Boutwell, July 9, 1872, 94 MS. Dom. Let. 514; Mr. Hale, Acting Sec. of State, to Mr. Boutwell, July 13, 1872, 94 MS. Dom. Let. 547.)
"I have the honor to acknowledge the receipt of your letter of the 18th instant, accompanied by a copy of one from Noah Davis, esq., United States attorney for the southern district of New York, in relation to the case of Ryan and Jordan, who have been indicted in that district for violation of the neutrality laws. You request suggestions from me in reference to the matter.
"In reply, I venture no expression as to the sufficiency of the cause assigned for the nonprosecution of the indictment against Ryan further than to say that it would have been very convenient to the Government to have had some more explicit reasons to assign to the friendly government against which it was alleged that Ryan was enlisting men, or getting up a hostile expedition, for the nonprosecution of the complaint against that individual whose subsequent actions and open declarations are understood to have been in the direction of the line of conduct charged against him.
"The inference seems almost inevitable from Mr. Davis's letter that it is assumed that a prosecution for violation of the neutrality laws of the United States is to be conducted only on evidence furnished by the Government against which the alleged offence is designed.
"This Government suffered very grievously during its recent civil war from the application of a similar theory of the duty of neutrals and has strenuously contended for a more active obligation as incumbent upon the neutral powers.
"It would relieve this Department of many complaints, and would strengthen the position of the Government in the maintenance of the claims which it is prosecuting against Great Britain, if the prosecuting officers in New York and some other parts of the country appreciated, as fully as this Department is bound to do, the impor