day Baron Köller, the Austrian chargé d'affaires, brought the incident to the notice of the British Government, and he subsequently reenforced his representations under instructions from Prince Schwartzenberg, asking for an investigation of the affair, and the punishment of the guilty parties by a punishment which would mark their violation of the country's hospitality. Lord Palmerston expressed regret that an Austrian officer should have been exposed "to such outrageous violence and insult," and referred the case to the home secretary. It appears that Marshal Haynau refused personally to institute criminal proceedings against the offenders, and immediately left England. The home secretary declared that this forbearance threw "insuperable difficulties" in the way of the prosecution, since the offenders could not be prosecuted with "a reasonable prospect of success, in the voluntary absence of the only person injured, whose testimony is expected in such cases both by the court and the jury." The Government therefore declined to institute any prosecution. In 1864 the sergeant of the military guard on board an American vessel, from San Francisco to Panama, while he was ashore at the latter place, got into an altercation with one of the privates of the guard, in which the latter was killed. As they both were enlisted soldiers in the United States Army, the Department of State, at the solicitation of friends of the sergeant, who was held by the local authorities at Panama for trial, requested the Colombian minister in the United States to use his good offices with the government of Panama, with a view to the surrender of the culprit to the United States military authorities in California, to be tried there by court martial. "I am well aware," said Mr. Seward, "that no obligation rests upon the authorities of Panama, or upon those of the United States of Colombia, to comply with this request; nevertheless, if the matter can be so disposed of, this Government will esteem it a mark of courtesy on the part of Colombia. . . . In the event, however, that the governor of Panama should consider it incompatible with his attributes and prerogatives to grant the above request, I will thank you to urge upon him the speedy trial of the accused, whose friends allege in his defense that he was acting in the discharge of his official duty, at the time the unfortunate occurrence took place." Mr. Seward, Sec. of State, to Gen. Salgar, Colombian min., March 30, 1865, MS. Notes to Colombia, VI. 182. H. Doc. 551-vol 2-36 3. VESSELS OF WAR. (1) THEIR PUBLIC CHARACTER, AND ITS PROOF. § 252. The firm of Cramp & Sons, of Philadelphia, entered into a contract with the Russian Government for the construction of a man-of-war. She was to be paid for in instalments as the construction proceeded, but a percentage of each instalment was to be withheld, and final payment was not to be made till the vessel had been accepted by the Russian Government, which was at liberty, unless certain requirements as to draught and speed were met, to reject her. The materials to be used in her construction were, however, when brought upon the premises of the contractors, immediately to become the exclusive property of the Russian ministry of marine. During her construction she was to be inspected by officials of the Russian Government; and it was stipulated that the Russian flag should be hoisted on the ship, whenever desired by the board of inspection, as evidence of the Government's exclusive property, and that the Russian ministry of marine might at any time appoint an officer to take possession of the ship or materials, whether finished or unfinished, subject to the contractor's lien for any part of the value remaining unpaid. With reference to the legal position of the vessel after she was launched, but while she was still lying in the stream under construction, and before the Russian flag had ever been hoisted upon her, the opinion was expressed obiter that she was then subject to the local jurisdiction, and that if any crime had been committed on board of her, it would have been cognizable in the local courts. But it was intimated that if proceedings had been taken against her under the mechanic's lien law of the State, or if a material man had filed a libel in admiralty against her for coal furnished in testing her engines, or if upon her trial trip she had negligently come into collision with another vessel, whose owner had instituted a suit against her, the Emperor of Russia might have claimed for her an immunity from local jurisdiction on the ground that she was the property of a foreign sovereign. Tucker v. Alexandroff (1902), 183 U. S. 424, 440, citing The Constitution, 4 P. D. 39, and the Parlement Belge, 4 P. D. 129. It was held in Tucker v. Alexandroff that the vessel in question at the time referred to was a Russian ship of war within the letter and spirit of the treaty between the United States and Russia of 1832, Art. IX., relating to the recovery of deserters from and merchant vessels." See the case of Chilean gunboat Pilcomayo, infra, § 604. ships of war A Russian cruiser, manned by a crew in the pay of the Russian Government, and in command of an officer of the Russian navy, is a war vessel, within the seal-fishery act, and a protocol of examination of an offending ship by such cruiser, signed by the officer in command, is admissible in evidence in an action for condemnation under that act. The Minnie v. Reg., 23 Canada Sup. Ct. 478. "Mr. Hall, in his treatise upon international law, discussing foreign ships as nonterritorial property of a state (section 44), says that the commission under which a commander acts is conclusive of the public character of a vessel, although such character is usually evidenced by the flag and pendant which she carries, and if necessary by firing a gun. When in the absence of, or notwithstanding, these proofs any doubt is entertained as to the legitimateness of her claim, the statement of the commander on his word of honor that the vessel is public is often accepted, but the admission of such statements as proof is a matter of courtesy,' and though attestation by a government that a ship belongs to it is final, it does not follow that denial of public character is equally final; assumption and repudiation of responsibility stand upon a different footing.'. . . But it is pertinent to notice here that he is speaking of immunities of public vessels from local jurisdiction, and not of the property of a foreign government in such vessels." Tucker v. Alexandroff (1902), 183 U. S. 424, 441-442. As to the effect of a commission, in cases of neutrality, see Moore, Int. (2) ENTRANCE INTO FRIENDLY PORTS. § 253. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of powers with whom it is at peace; and those vessels are supposed to enter such ports and remain in them under the protection of the government of the place. Schooner Exchange v. McFaddon, 7 Cranch, 116, 145. By section 6 of the act of March 3, 1805, 2 Stat. 339, 342, the President was empowered by proclamation to forbid the entrance within the United States of any officer of a foreign armed vessel or of the vessel itself on satisfactory proof that he had committed on the high seas any trespass or tort, or any spoliation on board any vessel of the United States, or any unlawful interruption or vexation of trading vessels actually coming to or going from the United States; and such officer was declared to be liable to arrest and punishment and expulsion thereafter if at any time after a proclamation thus made he should be found within the United States. The existence of the act was limited to two years. Chief Justice Marshall, in the Schooner Exchange v. McFaddon, 7 Cranch, 116, states that the implied license under which men-of-war enter friendly ports may be withdrawn or qualified. An example of its limitation may be found in the act of Congress of May 15, 1820, by which foreign armed vessels were for a period of two years, beginning July 1, 1820, forbidden to enter any harbor in the United States except Portland, Boston, New London, New York, Philadelphia, Norfolk, Smithville (N. C.), Charleston, and Mobile, unless by reason of stress of weather or pursuit of an enemy they were unable to make one of those ports. In case of entering a port not declared to be open, the commanding officer of the man-of-war was required immediately to report his vessel to the collector of the district, stating the object or causes of his entrance, to take such a position in the harbor as the collector should assign to him, and to conform himself to such regulations as the President might have prescribed. By various nations the conditions under which foreign men-of-war are permitted to enter and remain in their ports are expressly defined. An example of such a regulation may be seen in the Austrian ordinance of June 14, 1866. By section 2791 of the Revised Statutes of the United States it is provided that" it shall not be necessary for the master of any vessel of war, or of any vessel employed by any prince, or state, as a public packet for the conveyance of letters and dispatches, and not permitted by the laws of such prince or state to be employed in the transportation of merchandise, in the way of trade, to make report and entry." In 1835, during the excitement concerning the nonexecution of the treaty between the United States and France of 1831, in relation to the payment of claims, a French man-of-war arrived at New York. On its subsequently being represented by the French chargé d'affaires that certain officers of the ship had been insulted by a crowd in the street, the United States district attorney was instructed to request the mayor of the city to "exercise all the authority he possesses to prevent any injury or further offence from being committed against the officers or crew of the vessel alluded to, and to secure to them while they remain within the limits of the United States the hospitable treatment to which they are entitled, and which the American people are wont to show." Besides, as the chargé d'affaires apprehended that popular excitement might lead to an attempt against the vessel herself, the President, while considering such apprehensions to be groundless, caused orders to be given to the commandant of the Brooklyn Navy-Yard to afford the same protection as if the ship belonged to the United States; and it was suggested that if a 3 Stats. at L. 597. b63 British and Foreign State Papers, 1073. there should be "the slightest indication of a meditated attack" she should anchor near the yard, "where the United States have exclusive jurisdiction and competent force." Mr. Forsyth, Sec. of State, to Mr. Price, U. S. dist. attorney at New York, "Section 2791 of the Revised Statutes provides that it shall not be necessary for the master of any (foreign) vessel of war to make report and entry on arriving in a harbor of the United States; and Section 5288 of the statutes authorizes the President to employ such force as may be necessary to compel any foreign vessel to depart the United States in all cases in which by the law of nations or the treaties of the United States she might not remain within the United States. "These are believed to be the only provisions of municipal law, in this country, on the subject." Mr. Evarts, Sec. of State, to Mr. Comacho, Venezuelan min., Dec. 9, 1880, For Austrian regulations concerning foreign men-of-war, see 63 Br. & Mr. Wallace, consul-general at Melbourne, with his No. 81, July 3, 1891, For German regulations, see dispatch of Mr. Kasson, min. to Germany, For Netherlands regulations, see dispatch of Mr. Thayer, min at The February 9, 1901, Señor Blanco, Venezuelan minister of foreign Incident in Vene- affairs, addressed to Mr. Loomis, United States minzuela, 1901. ister at Caracas, the following note: "The law of May 15, 1882, numbered 2419 in the national compilation, gives to the head of the Government the power to grant or not, in his judgment, permission to foreign men-of-war to enter, for scientific purposes, ports that are not open. Every time that a war vessel of the United States has made a request of this nature it has been granted without any difficulty, and not long ago United |