Butler had authority to declare martial law in New Orleans, and that aliens as well as other inhabitants of the city were bound to obey the regulations established by him. A majority of the commission, however, made an award in favor of the claimant, on the ground that General Butler had dealt with him in violation of the terms of his own proclamation of martial law and also in violation of the rules and articles of war.

Moore, Int. Arbitrations, IV. 3320-3332.

See, also, the cases of Le More, Heidsieck, and Bebian: Moore, Int. Arbi-
trations, IV. 3311-3319.

The claims in the cases of Heidsieck and Bebian were disallowed.
In the case of Alfred Le More, it appeared that the claimant was con-
fined by order of General Butler at Fort Pickens from the 15th to
the 26th of November, 1862, and was forced to wear a 32-pound cannon
ball and 6 feet of iron chain. From November 28 to December 30
he was confined in the New Orleans custom-house. A majority of
the commission declared that the case was one "of unusual and
arbitrary conduct on the part of the general commanding at New
Orleans;" that he had “no right to inflict punishment on the claim-
ant, but only to detain him in custody for trial;" and that the
"punishment of solitary imprisonment at hard labor with ball and
chain was unnecessary, extreme, and much too severe." An award
was made of $10,000. (Moore, Int. Arbitrations, IV. 3311–3313.)
In this case the President of the United States expressed disapproval of
General Butler's action in directing Mr. Le More "to be employed at
labor, and to wear a ball and chain," and "directed that the prisoner
be immediately released from these inflictions." Information to this
effect was communicated to the French minister, together with an
expression of regret and an assurance that care would be taken to
prevent the recurrence of such excess of rigor under any military
command in the United States. (Mr. Seward, Sec. of State, to Mr.
Mercier, French min., Dec. 10, 1862, MS. Notes to French Legation,
VII. 160.)

"In all civilized countries, during times of great political disturbances and revolutionary movements, the right to arrest suspected persons, and to hold them in restraint a reasonable time, for the purpose of investigating the charges which may be made against them, has been exercised as one necessary for self-preservation. During our late civil war this right was exercised in large degree by the United States Government. The utmost care, however, has been, and will be, taken to see that this right is not exercised with undue harshness or injustice towards citizens of the United States, and in all proper cases such reparation as may be justly due them for unlawful arrest and detention will be demanded through the proper channels."

Mr. Fish, Sec. of State, to Mr. Banks, chairman of the Committee on Foreign Affairs, House of Representatives, March 31, 1869, 52 Dispatches to Consuls, 522.

The President's proclamation of October 7, 1878, in relation to unlawful assemblages and combinations of persons in arms then represented to exist in Lincoln County, Territory of New Mexico, was the proclamation of preliminary warning contemplated by section 5300, Title LXIX., Revised Statutes, and could not properly be considered a proclamation "declaring martial law." It did not suspend or authorize the suspension of the writ of habeas corpus, but required "all persons engaged in or connected with the said obstruction of the laws" to "disperse and retire peacefully to their respective abodes."

Mr. Evarts, Sec. of State, to Mr. Ramsey, Sec. of War, Feb. 3, 1880, 131
MS. Dom. Let. 469.

Article 1 of the protocol between Spain and the United States, January 12, 1877, provided:

Protocol with
Spain, 1877.

That "no citizen of the United States residing in Spain, her adjacent islands, or her ultramarine possessions, charged with acts of sedition, treason or conspiracy against the institutions, the public security, the integrity of the territory or against the Supreme Government, or any other crime whatsoever, shall be subject to trial by any exceptional tribunal, but exclusively by the ordinary jurisdiction, except in the case of being captured with arms in hand."

On the strength of the negotiations leading up to this protocol, and of the interpretation placed upon it by the mixed commission under the agreement of 1871, it was maintained that the foregoing article, in connection with article 7 of the treaty of 1795, prohibited the arrest of a citizen of the United States in Cuba by executive authority, and his detention without trial, as a dangerous person, under the professed authority of a state of siege.

Case of Francisco Carrillo, For. Rel. 1895, II. 1220.

As to the protocol of Jan. 12, 1877, see Mr. Fish, Sec. of State, to Mr.
Cushing, min. to Spain, Dec. 27, 1875; April 17, June 9, July 21,
Nov. 28, Dec. 12, 1876; MS. Inst. Spain, XVII, 396, 506, 546, 564;
XVIII. 33, 60; and telegrams, same to same, Ján. 4, 15, 18, 23, 25, and
March 3, 1877, MS. Inst. Spain, XVIII. 70, 77, 82, 83, 85, 125.
See the case of De Luna, Moore, Int. Arbitrations, IV. 3276.

The contention of the United States always has been that martial law or a state of siege proclaimed in Cuba does not affect the rights of American citizens under the treaties and the protocol, and that they consequently can not be kept incommunicado beyond the period of seventy-two hours, the limit fixed by Art. IV. of the Spanish constitution of 1876.

Mr. Rockhill, Assist. Sec. of State, to Mr. Lee, cons. gen. at Havana, March 11, 1897, 155, MS. Inst. Consuls, 438.

Uprising in Hawaii, 1895.

On the discovery of the plot to overthrow the Republic in Hawaii, in January, 1895, and during the commotion attendant upon the suppression of the attempted rising, martial law was declared, and a military commission of seven persons, presided over by the attorney-general, was constituted to try persons charged with complicity in the conspiracy. Numerous arrests were made, and up to the middle of February about a hundred persons were tried. Among those who were arrested were certain persons who claimed to be citizens of the United States and a few who asserted British allegiance."

January 28, 1895, Mr. Willis, the minister of the United States at Honolulu, requested copies of the record in the cases of United States citizens who had been tried, or who were to be tried, in order that his Government might before final sentence "determine its duty in the premises." The Hawaiian minister of foreign affairs, Mr. Hatch, promised to furnish copies of the record when it should be "completed" and "acted upon by the President;" but he asked Mr. Willis "upon what principle of international law or usage" he desired his Government to have "the opportunity to consider the question of law and facts involved, and to determine its duty in the premises before final sentence is pronounced;" and he denied that "any right of review" belonged to the United States, and refused to give an assurance that final sentence would be delayed till that Government had "determined its duty in the premises.”

Mr. Willis disclaimed any intimation of "a right to review" the decisions of the Hawaiian Government, and stated that he had merely made "the usual request from one government to another for correct official information in matters involving the life, liberty, and property of the citizen." He added:

The principles of international law and usage of which you make inquiry, as understood by Hon. W. H. Seward, former United States Secretary of State, are set forth in an official letter of October 27, 1866, addressed to Sir Frederick Bruce, then British minister at Washington, referring to the cases of Robert B. Lynch and John McMahon who had been tried before the regular tribunals of justice as actors in the assault at Fort Erie, Canada, the question of final sentence being then pending before the home Government.

"Mr. Seward says:

"It can hardly be necessary to direct your attention to the fact that the Government of the United States is required by the highest considerations of national dignity, duty, and honor to inquire into the legality, justice, and regularity of the judicial proceedings which have thus taken place; and that, after making such a careful scrutiny,

a For. Rel. 1895, II. 818-832.

we shall expect to make known to Her Majesty's Government such opinions as the President, upon due consideration, shall adopt. With this view the United States consul at Toronto is this day instructed to procure, for the information of this Department, a copy of the record of the trial and conviction of Lynch and McMahon, and also of all further trials and convictions of a similar character which shall take place in Canada. I have now the honor to request you to take such proceedings as you may think proper, to the end that such applications of the consul shall be promptly granted.'

"It is to be noted that although Mr. Seward claimed as right that which I have asked of your Government as a favor, it was promptly conceded by the British Government."

"If American citizens were condemned to death by a military tribunal, not for actual participation in reported revolution but for complicity only, or if condemned to death by such a tribunal for actual participation but not after open, fair trial, with opportunity for defense, demand delay of execution, and in either case report to your Government evidence relied on to support death sentence."

Mr. Gresham, Sec. of State, to Mr. Willis, min. to Hawaii, tel. Feb. 8, 1895, S. Ex. Doc. 60, 53 Cong. 3 sess.; For. Rel. 1894, App. II, 1397. This telegram was sent before the receipt in Washington of Mr. Willis' correspondence with Mr. Hatch, as above detailed. It was based upon a telegram from Mr. Willis, dated Jan. 30, but not received at San Francisco till Feb. 6, which read as follows: "Revolt over 9th. Casualties: Government, 1; royalist, 2. Court-martial convened 17th; has tried 38 cases; 200 more to be tried and daily arrests. Gulick, former minister, and Seward, minister, major in Federal army, both Americans, and Rickard, Englishman, sentenced to death; all heretofore prominent in politics. T. B. Walker, formerly in the United States Army, imprisonment for life and $5,000 fine. Other sentences not disclosed, but will probably be death. Requested copies of record for our Government to determine its duty before final sentence, but no answer yet. Bitter feeling and threats of mob violence, which arrival of Philadelphia yesterday may prevent. Liliuokalani made prisoner 16th; on 24th relinquished all claims and swore allegiance Republic, imploring clemency for Hawaiians. Government replies to Liliuokalani: This document can not be taken to exempt you in the slightest degree from personal and individual liability' for complicity in late conspiracy. Denies that she had any rights since January 14, 1893, when she attempted new constitution. Fully appreciates her call to disaffected to recognize Republic and will give full consideration to her unselfish appeal for clemency' for participants."

In a note to Mr. Hatch, of February 23, 1895, a copy of which did not reach Washington till March 8, Mr. Willis said: "The request for copies of record before final sentence' was, as I have heretofore orally explained, to avoid the appearance of reviewing the deliberate final judgment of your Government. Copies of the record in all cases, including those whose status as United States citizens is in dispute, will, as I understand, after final sentence be supplied

a For. Rel. 1895, II. 832-834.

by your Government. This considerate course will be duly appreciated by my Government. Of the three requests submitted in the case of J. F. Bowler, your Government has granted the one asking for a copy of the record." (For. Rel. 1895, II. 839-840.) Mr. Gresham, writing to Mr. Willis, Feb. 28, 1895, with reference to the latter's telegram of Jan. 30, and his request of January 28 for copies of the records, said: "You appear to have anticipated in great measure the telegraphic instructions which were sent to you on the 8th instant." (For. Rel. 1895, II. 846.)

"Your telegram 8th instant received. Sentences of death not yet known to have been approved by President. Sentences in 25 cases approved and made public, viz: Twenty-three Hawaiians, five to ten years' hard labor; one Englishman, Col. V. V. Ashford, one year and fine; and one American, J. F. Bowler, five years and fine of $5,000. These two charged with misprision of treason. All required to don prison garb. One hundred and twenty tried, 21 more now on joint trial, 2 acquitted, 3 deported, and 15 of different nationalities released on condition of leaving country. Over 200 yet in prison, of whom 13 are Americans; latter confined without formal charges or trial. Feeling less extreme."

66

Mr. Willis, min. to Hawaii, to Mr. Gresham, Sec. of State, tel., Feb. 17, 1895, For. Rel. 1895, II. 834.

It was afterwards held that J. F. Bowler was not entitled to the protec-
tion of the United States, on the ground that he had been naturalized
in Hawaii. (Mr. Gresham, Sec. of State, to Mr. Willis, min, to
Hawaii, April 5, 1895, For. Rel. 1895, II. 853.)

Feb. 23, 1895, the following telegram, which reached San Francisco
March 2, was sent by Mr. Willis :

"Gulick, Seward, Wilcox, and Rickard sentences confirmed by President;
thirty-five years' imprisonment at hard labor and $10,000 fine, each.
Widemann and Walker, thirty years and $10,000 and $5,000 fine,
respectively. Gregg and Marshall, latter American, 19 years old,
twenty years and $5,000 fine each. The two Lanes five years and
$5,000 fine each. Nowlein and Bertlemann, leaders in conspiracy, who
turned state's evidence, thirty-five years and $10,000 fine each, but
sentence in both cases suspended. Davies, captain of steamer which
landed arms, also state's evidence, ten years and $10,000 fine; sen-
tence also suspended. Ex-Queen, five years and $5,000 fine." (For.
Rel. 1895, II. 835.)

Telegram February 17 received. President disappointed and anxious, because while it acknowledges my telegram of February 8, it communicates no response to reasonable demand therein made. under recognized principles of public law, that execution of death sentence passed on American citizens be delayed until President can have opportunity to examine evidence relied on to support sentence. You will insist that copy of proceedings of trial, including evidence, be furnished for that purpose, and if, in disregard of such demand, the Hawaiian authorities enter upon actual preparation for execution