« ПредыдущаяПродолжить »
cessful, and that, until the money was actually sent out, the only mode of proceeding would be for counseling or conspiring to assist with money one of the belligerents-a prosecution which would be attended with still greater difficulty.
Halleck, Int. Law (3rd ed., by Baker), II. 164–165.
On March 21, 1885, Mr. Valera, Spanish minister at Washington, requested Mr. Bayard, who was then Secretary of State, "to cause the issuance of suitable orders to prevent expeditions from going to Cuba, and likewise to prevent any steps from being taken for their organization." Among the means employed to secure the fitting out of such expeditions, he cited the sale of lottery tickets at Key West as though they were for the drawings of a branch of the Havana lottery, while in reality they were intended to obtain money for filibustering purposes. Mr. Bayard, in reply, said: "There is no Federal statute prohibiting sales either of lottery tickets or any other article of traffic, on the ground that the proceeds are to be applied to aid insurgents in a foreign land, nor is it a principle of international law that a sovereign is bound in any sense to prohibit sales of any kind on the ground that the proceeds might go to unlawful objects. There are, however, in most of the States in the Union statutes providing for the punishment of those concerned in lottery tickets, without reference to the object to which their proceeds may be applied. To secure the prosecution and conviction of the offenders in such cases the proper course is to apply to the authorities of the State where the lottery tickets complained of are sold, bringing the matter to their attention by an oath made by a proper presentation to a State magistrate."
Mr. Bayard, Sec. of State, to Mr. Valera, Spanish min., March 21, 1885,
The furnishing of funds by subjects of a neutral state to relieve suffering in a belligerent state is not a breach of neutrality. During the Franco-German war large sums of money were sent from Germans in the United States to their relations and friends in Germany for the relief of sufferers in the hospitals, and large sums were also sent by sympathizers with France for the relief of persons in French hospitals; but in no case was it maintained that such action constituted a violation of the neutrality laws or that the tolerance of the Government constituted a breach of neutral duty. In subsequent wars, including that between Russia and Japan, large contributions have been sent from neutral countries for the relief of sufferers in the belligerent states.
See Wharton's Commentaries on American Law, § 245.
Wharton, after expressing the view that the lending of money by persons in neutral countries to a belligerent government is not a violation of neutrality, says: "It is remarkable that a contrary view should be taken by Bluntschli ($ 768), Calvo (§ 1060), and Phillimore (III. 247). Mr. Hall mentions that during the Franco-German war the French Morgan loan and part of the North German Confederation loan were issued in England. On the other hand, it has been held that a suit can not be maintained on a loan made expressly to effect a belligerent object (Kennett v. Chambers, 14 Howard, 38), or to aid in an insurrection in a foreign state against a government at peace with the state of the lender. De Wützv. Hendricks, 9 Moore C. P. 586, 2 Bing. 314."
Wharton, Int. Law Digest, III. 508.
With reference to this statement, it may be observed that the loan in
In the war between Great Britain and the South African Republics loans were openly negotiated for the British Government in the United States and elsewhere, and the same thing has taken place in the war between Russia and Japan. We cannot too constantly bear in mind the fact that in dealing with the question of unlawfulness" in matters of neutrality, a distinction must be drawn between what is unneutral in a general sense and what is unneutral in the sense of being criminally punishable under the neutrality laws, and that, while a neutral government is not bound to prevent all unneutral acts, it must itself refrain from engaging in them, and that, as a consequence of this duty of abstention, it may well be that its courts should not lend their processes for the purpose of enforcing transactions which, although they may not be penally preventable, may be in their essence unneutral.
(2) BY GOVERNMENTS, INADMISSIBLE.
With reference to the loan of money which was solicited from the United States by the French Government, in 1798, through the American envoys in Paris, the United States took the ground that such a loan would be a violation of neutrality. This is cited with approval by Chancellor Kent.
See Mr. Pickering, Sec. of State, to Messrs. Pinckney, Marshall, and
In 1816 Colonel Devereux, commercial agent of the United States at Buenos Ayres, presented a memorial to the Government at that place offering his services to procure for its use a loan in the United States under the guarantee of the United States Government. His
proposition was sent to the Congress at Tucuman, and, after receiving its sanction, was agreed to by the supreme director and assisting members of the Congress at Buenos Ayres. The action of Colonel Devereux, though his intentions were not questioned, was disavowed, and Mr. Worthington, the agent of the United States in South America, was instructed to inform the Government of Buenos Ayres that the refusal of the United States to carry out the arrangement which was sought to be made “must be the result of its existing laws and duties in relation to the civil war between Spain and the Spanish American colonies."
Robert Brent, Acting Sec. of State, to Mr. Worthington, April 21, 1817,
2 MS. Desp. to Consuls, 24.
5. EXPRESSIONS OF OPINION.
See supra, $ 193.
On July 4, 1816, at “a public feast at Baltimore," Mr. Skinner, the postmaster at that city, gave a “ festive” toast supposed to reflect on the character of the then French Government. The French minister at Washington called upon Mr. Monroe, then Secretary of State, to cause the postmaster to be dismissed and to apologize for the alleged insult. This was refused by Mr. Monroe, who stated in reply that on matters of this character the Government of the United States exercised no control.
Mr. Monroe, Sec. of State, to Mr. Gallatin, Sept. 10, 1816, MS. Inst. U.
States Ministers, VIII. 100.
Subsequently, in retaliation for the “toast," the functions of the French consul at Baltimore were suspended by the French minister, who had taken additional offense on account of a toast given at a New York dinner to “ Marshal Grouchy," who, the French minister said, was not a marshal.”
Mr. Monroe, Sec. of State, to Mr. Gallatin, Nov. 2, 1816, id. 111.
The French Government having asked for the dismissal of Mr. Skinner in consequence of his “clisrespectful" conduct, the Duke of Richelieu, minister of foreign affairs, in an interview with Mr. Gallatin, minister of the United States at Paris, said that “in asking for the dismission of Mr. Skinner there was no intention of giving offense; it was only stating the kind of reparation which appeared most natural, and which woull be satisfactory.
I am sorry to say that no explanation I could give appeared to make any impression on him.. He immediately added that they would not
preserve any public agent in the town where His Majesty had been publicly insulted.”
Mr. Gallatin to Mr. Monroe, Nov. 21, 1816, 2 Gallatin's Writings, 19.
The Duke of Richelieu subsequently told Mr. Gallatin that "the refusal to dismiss the postmaster at Baltimore" would indispose the Government of Louis XVIII. to take steps towards paying for Napoleon's spoliations.
Same to same, Jan. 20, 1817, id. 22.
The Government of the United States, when called upon by the minister of Russia to explain certain newspaper "calumnies" on his Government, to which the Government of the United States was intimated to have "directly or indirectly given . . . its support,” answered, through the Secretary of State, that no further explanations could be given "until an imputation so injurious to the reputation of this Government, and so inconsistent with its sincere professions of amity for Russia and respect for its sovereign, shall be withdrawn."
Mr. Livingston, Sec. of State, to Mr. de Sacken, Dec. 4, 1832, MS. Notes to For. Leg. V. 73.
The United States Government has no power, under our Constitution and laws, to interfere with publications in the States criticising foreign governments or encouraging revolt against such governments.
Mr. Cass, Sec. of State, to Mr. Molina, Costa Rican min., Nov. 26, 1860, MS.
As to expressions of sympathy with Ireland, see report of Mr. Banks,
See Mr. Seward, Sec. of State, to Mr. Speed, At. Gen., April 2, 1866, 72
On July 21, 1885, Mr. Valera, Spanish minister at Washington, in a note to the Department of State, declared that “conspiracies" were carried on in various parts of the United States, especially at New York, New Orleans, and Key West, against the public peace of Spain and the integrity of her territory, by efforts "to collect funds for piratical enterprises, by forming associations for this purpose, and by holding public meetings at which Spain is outraged by all sorts of insults and calumnies, and at which those present are incited to rebellion and civil war." Mr. Valera adverted to the fact that he had, on a previous occasion been advised, in reply to his complaints, that the courts of the country were open to the representatives of Spain, but he observed that this method of obtaining satisfaction was almost always very costly and inefficient, and that another serious argument
against appealing to the courts was furnished by the system of trial by jury. In this relation he adverted to the case of Carlos Agüero, a Cuban revolutionist, who, after his discharge at Key West, on an application by Spain for his extradition, was drawn in triumph through the streets of the city, several local officers joining in the procession, and was also encouraged and assisted to go to Cuba, where, after pillaging and burning, he was at length shot.
Replying to these complaints, Mr. Bayard, Secretary of State, in a note of July 31, 1885, observed that "the Executive of the United States has no authority to take cognizance of individual opinions and the manifestation thereof, even when taking the shape of revoIntionary and seditious expressions directed against our own Government;" and that it was "no less incompetent to pass upon the subversive character of utterances alleged to contravene the laws of another land." Mr. Bayard adverted to the alien and sedition laws of 1798, and to their great unpopularity and brief duration. He added, however, that in passing from the mere announcement of the purpose to do an unlawful act to the overt commission thereof the domain of prohibitive law was entered. But, in such case, proceedings must be "set in motion by due information made under oath by some person cognizant of the facts alleged or possessing belief sufficient to that end," and must be so set in motion in the name, by the power, and through the officers of the United States. While the Government could not undertake to control the workings of opinion and sympathy, yet any affidavit founded even upon mere information or belief, charging a breach of any law, would lead to an examination and a prosecution by the officials of the United States wholly at the public cost, should the facts alleged be found to bring the matter within the purview of the law.
Mr. Bayard, Sec. of State, to Mr. Valera, Spanish min., July 31, 1885.
September 28, 1885, Mr. Valera addressed a note to Mr. Bayard stating
See supra, §§ 193, 224.