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See, also, Mr. Frelinghuysen, Sec. of State, to Mr. Lowell, min. to
"The second aspect of his excellency's inquiry, touching the treatment of persons who in the United States may publish their sympathy with those who oppose the rule of Turkey in Asia Minor, has been on several occasions discussed with your esteemed predecessor. Mavroyeni Bey has been repeatedly informed that while the laws of this country provide a judicial remedy for any act of armed hostility against a power with which the United States are at peace by organizing expeditions or fitting out vessels to make war against the same, the expression of opinion by speech, writing, or otherwise is free under our Constitution and laws, so that neither the act nor the actor can be held accountable by any exercise of administrative power, nor can they come within the cognizance of the courts save in case of libel or defamation, upon suit brought by the party alleging to have suffered injury. In a number of his later notes Mavroyeni Bey has expressly referred to and recognized this position, so that I may assume that it is well known to your Government, and that the inclusion of this suggestion in his excellency's telegram may have been due to his employment of a circular formula intended to be addressed principally to the governments of countries whose laws provide for administrative treatment of press offenses and where, contrary to the constitutional rule which here obtains, the discretionary power of expulsion may be used by the executive branch."
Mr. Olney, Sec. of State, to Moustapha Bey, Turkish min., Nov. 11, 1896,
1. CONCESSION PRESUMED.
In a dispatch from Mr. Wheaton to Mr. Upshur, Secretary of State, November 10, 1843, in the case of the Bergen prizes, Mr. Wheaton said: "If, then, there was no express prohibition in this case, and if there was no treaty existing between Denmark and Great Britain by which the former was bound to refuse to the enemies of the latter these privileges (and I suppose there was no such prohibition or treaty), then the American cruisers had an unquestionable right to send their prizes into Danish ports. Still more had they such right, grounded on necessity arising from stress of weather, as appears to have been the case here. When once arrived there, the neutral government of Denmark was bound to respect the military right of
possession, lawfully acquired in war by the captors on the high seas and continued in the neutral port into which the prize was brought."
Mr. Wheaton, min. to Prussia, to Mr. Upshur, Sec. of State, No. 233,
See, as to the case of the Bergen prizes, Moore, Int. Arbitrations, V.
"France, England, and all other nations, have a right to cruise on our coasts—a right, not derived from our permission, but from the law of nature. To render this more advantageous, France has secured to herself by a treaty with us (as she has done, also, by a treaty with Great Britain, in the event of a war with us, or any other nation), two special rights: (1) Admission for her prizes and privateers into our ports. This, by the seventeenth and twenty-second articles, is secured to her exclusively of her enemies, as is done for her in the like case by Great Britain, were her present war with us, instead of Great Britain. (2) Admission for her public vessels of war into our ports, in cases of stress of weather, pirates, enemies, or other urgent necessity, to refresh, victual, repair, etc. This is not exclusive. As we are bound by treaty to receive the public armed vessels of France, and are not bound to exclude those of her enemies, the Executive had never denied the same right of asylum, in our ports, to the public armed vessels of your nation. They, as well as the French, are free to come into them in all cases of weather, pirates, enemies, or other urgent necessity, and to refresh, victual, repair, etc. And so many are these urgent necessities to vessels far from their own ports, that we have thought inquiries into the nature, as well as the degree, of their necessities which drive them hither, as endless as they would be fruitless; and, therefore, have not made them. And the rather, because there is a third right, secured to neither by treaty, but due to both, on the principles of hospitality between friendly nations-that of coming into our ports, not under the pressure of urgent necessity, but whenever their comfort or convenience induced them. On this ground, also, the two nations are on a footing."
Mr. Jefferson, Sec. of State, to Mr. Hammond, Brit. min., Sept. 9, 1793,
"Through every stage of the conflict [between Spain and her colonies in America] the United States have maintained an impartial neutrality, giving aid to neither of the parties in men, money, ships, or munitions of war. They have regarded the contest not in the light H. Doc. 551-vol 7-63
of an ordinary insurrection or rebellion, but as a civil war between parties nearly equal, having, as to neutral powers, equal rights. Our ports have been open to both, and every article, the fruit of our soil or of the industry of our citizens, which either was permitted to take, has been equally free to the other."
President Monroe, annual message, Dec. 2, 1817, Richardson's Messages,
See, to the same effect, President Monroe's annual message, Dec. 7, 1819,
Similar declarations were made in President Monroe's second inaugural address, 1821, in which he also declared that "the neutrality heretofore observed should still be adhered to." (Id. 88-89.)
"This contest [between Spain and her colonies] was considered at an early stage by my predecessor a civil war in which the parties were entitled to equal rights in our ports. This decision, the first made by any power, being formed on great consideration of the comparative strength and resources of the parties, the length of time, and successful opposition made by the colonies, and of all other circumstances on which it ought to depend, was in strict accord with the law of nations. Congress has invariably acted on this principle, having made no change in our relations with either party. Our attitude has therefore been that of neutrality between them, which has been maintained by the government with the strictest impartiality. No aid has been afforded to either, nor has any privilege been enjoyed by the one which has not been equally open to the other party, and every exertion has been made in its power to enforce the execution of the laws prohibiting illegal equipments with equal rigor against both.
"By this equality between the parties their public vessels have been received in our ports on the same footing; they have enjoyed an equal right to purchase and export arms, munitions of war, and every other ply, the exportation of all articles whatever being permitted under laws which were passed long before the commencement of the contest; our citizens have treated equally with both, and their commerce with each has been alike protected by the Government."
President Monroe, second inaugural address, March 5, 1821; Richardson's
The Government of the United States has been sincerely disposed to perform towards both belligerents all the offices of hospitality enjoined by humanity and the public law and consistent with their friendship to both; but it can permit neither, under allegations of distress, whether feigned or real, to perform acts incompatible with a strict and impartial neutrality." (Mr. Clay, Sec. of State, to Mr. Obregon, May 1, 1828, MS. Notes to For. Legs. IV. 22.
The Government of the United States having recognized the existence of a civil war between Spain and Buenos Ayres and avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse, each party is to be deemed a belligerent nation, having sovereign rights of war, though the independence of the colony has not been acknowledged by us. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports, under the law of nations, must be considered by the courts as equally the right of each.
The Santissima Trinidad, 7 Wheat. 283.
The admission of armed ships of a belligerent, whether men-ofwar or private armed cruisers, with their prizes, into the territorial waters of a neutral for refuge, whether from chase or from the perils of the sea, is a question of mere temporary asylum, accorded in obedience to the dictates of humanity, and to be regulated by specific exigency. The right of asylum is, nevertheless, presumed where it has not been previously denied.
Cushing, At. Gen., 1855, 7 Op. 122.
Privateers are not held as equally entitled with ships of war to the right of asylum; and neutral nations not infrequently exclude them from their ports.
Cushing, At. Gen., 1855, 7 Op. 122.
2. LIMITATION OF STAY AND SUPPLIES.
Under Article XVII. of the treaty with France of 1778, the men-ofwar of the enemies of France were forbidden to bring their prizes into the ports of the United States, and a direction for the enforcement of this obligation was embraced in the instructions to collectors of customs of Aug. 4, 1793. But, with this exception, belligerent men-of-war were permitted to enter the ports of the United States by the letter of Sept. 9, 1793, "which concedes to them our ports as a refuge in case of necessity and a resort for comfort or convenience, without limiting the time of their stay."
Mr. Randolph, Sec. of State, to governor of Virginia, May 8, 1795, 8 MS.
See, also, Mr. Randolph, Sec. of State, to Mr. Hammond, British min.,
That the misconduct, however, of belligerent cruisers in neutral waters
affirmed by Mr. Jefferson in his proclamation of Nov. 19, 1807, ordering the departure of the British squadron from the waters of the United States. (Am. State Papers, For. Rel. III. 23.)
August 15, 1861, Mr. Seward instructed Mr. Pike, at The Hague, to represent to the Government of the Netherlands that the Dutch authorities at Curaçao had permitted the Confederate cruiser Sumter, which Mr. Seward described as a "privateer," to enter that port and take in 120 tons of coal and a quantity of provisions, besides showing her other hospitalities. Mr. Seward intimated that a claim might later be presented for damages" for so great a violation of the rights of the United States," and directed Mr. Pike, besides asking for explanations, to say that if the facts were as stated the United States would expect the Dutch Government to disown the action of the authorities at Curaçao, cause the governor of the island to feel its severe displeasure, and adopt efficient means to prevent the recurrence of such proceedings.
An elaborate reply was made by Baron Van Zuylen, Dutch minister of foreign affairs, September 17, 1861. He pointed out that the neutrality proclamation of the Netherlands prohibited the entrance of privateers into Dutch ports, except in case of distress, but affirmed that the Sumter was not a privateer, but a ship of war duly commissioned by the government of the Confederate States. He then argued at great length in favor of the right to grant asylum in such cases, referring, among other things, to the asylum accorded by the Netherlands to the ships of John Paul Jones, whose surrender the British Government demanded as pirates.
Mr. Seward, writing to Mr. Pike on the 17th of October, declared that the Sumter "was, by the laws and express declaration of the United States, a pirate," and protested against her receiving the treatment of a man-of-war.
Baron Van Zuylen stated, on Oct. 29, 1861, that in consequence of Mr. Seward's representations, new instructions had been given to the governors of Curaçao and Surinam; that these instructions applied impartially to both parties to the conflict in the United States; that these instructions permitted men-of-war of the belligerents to sojourn in the ports of the Dutch West Indies not more than 48 hours; and that privateers, with or without prizes, remained excluded altogether, except as before.
Mr. Seward, Sec. of State, to Mr. Pike, Aug. 15, 1861, Dip. Cor. 1861, 341;
Mr. Seward wrote to Mr. Pike, Nov. 23, 1861: "Felicitate the Govern-