66 7. CASES AND OPINIONS, 1899-1902. a § 335. February 14, 1899, Mr. Donaldson, United States consul at Managua, telegraphed to Mr. Merry, United States minister to Nicaragua : The steamer San Jacinto, armed for war against the Government of Nicaragua, carries the flag of this Republic without authority, and in conseqeunce I have received an earnest intimation from the Government of Nicaragua that the American vessels of war should detain and disarm it as a vessel without a flag and a filibuster." Mr. Merry replied: "Entirely beyond my control. Naval officer under control Secretary of the Navy for orders." In reporting the case to his Government, Mr. Merry stated that the San Jacinto belonged to the Nicaraguan Government, and was stationed at Bluefields, where she was seized by General Reyes' insurgents and taken to San Juan del Norte, where she lay in their possession. Mr. Merry further said: "The suggestion that I shall countenance intervention by the United States naval force in the domestic disturbances of Nicaragua (except as necessary for the protection of the lives or property of our citizens) is inconsistent with the repeated instructions he [the consul] has received in regard to our neutrality obligations. Precisely the same question arose during the prospect of hostilities between Nicaragua and Costa Rica early in 1898. The Government of Salvador, under General Gutierrez, . . fitted out its steamer Cuscatlan with men and war munitions to aid Costa Rica, although Salvador was then a member of the Greater Republic of Central America,' jointly with Nicaragua and Honduras. The Cuscatlan flew the flag of that political corporation,' now the flag of Nicaragua, . . . President Zelaya requested Commander Leutze of the U. S. S. Alert to seize the Cuscatlan for the same alleged reasons and met with a refusal.” 6 The Department of State replied: "There is not enough shown by your dispatch to justify the intervention of our naval forces. It does not appear that the San Jacinto is American property, unlawfully seized by the insurgents. If it were, it could be recaptured for the benefit of its lawful owners on the high seas by our naval force. See Mr. Bayard's instructions to Mr. Scruggs, May 19, 1885, Foreign Relations, 1885, page 211." c a For. Rel. 1899, 553. For. Rel. 1899, 552-553. c Mr. Hay, Sec. of State, to Mr. Merry, min. to Nicaragua, March 3, 1899, For. Rel. 1899, 554. See, also, Mr. Hay, Sec. of State, to Sec. of Navy, March 13, 1899, 235 MS. Dom. Let. 416. H. Doc. 551-vol 2- -71 September 26, 1899, while an insurrection was in progress in Venezuela, the commander of an American man-of-war, then in Venezuelan waters, addressed to the United States consul at Puerto Cabello a letter, in which he said: "4. I further request that, in the event of the insurgent forces entering the town, you will immediately point out to the person in command of those forces that the undertaking in which he is engaged, is, in the eyes of international law, a mere act of lawlessness against the established authority of the Republic of Venezuela, and that any injury that he may bring upon the person or property of any foreign noncombatant will be looked upon as outlawry on mankind, and that for all such acts I shall hold him responsible; and it is my intention to employ the United States forces under my command to prevent such lawlessness." With reference to this statement, the Department of State observed that it did not appear clearly to discriminate between his unquestionable duty to protect American persons and property from wanton injury by whatever aggressor, as well as to hold responsible whatever party may appropriate or destroy American property for military purposes, and his supposed obligation to treat injury brought by the insurgents upon foreign noncombatant persons or property as outlawry on mankind.' It may also be remarked that his concluding declaration that it is his intention to employ the United States forces under his command to prevent such lawlessness' is ambiguous, inasmuch as such lawlessness' might be supposed to relate back to the initial phrase which defines the insurrectionary undertaking as, in the eyes of international law, a mere act of lawlessness against the established authority of the Republic of Venezuela,' and therefore to imply an intention to side with the titular authorities against the insurgents. This would of course be incompatible with the dictates of neutrality, and it is presumed that the commander's true intention was to protect American persons and property and the persons and property of alien neutrals placed under his protection, from any acts of wanton injury, to which end the forces of the United States could in extreme need be rightfully employed." Mr. Hay, Sec. of State, to Sec. of Navy, Oct. 17, 1899, 240 MS. Dom. "1. Insurgents not yet recognized as possessing the attributes of full belligerency can not establish a blockade according to the definition of international law. "2. Insurgents actually having before the port of the state against which they are in insurrection a force sufficient, if belligerency had been recognized, to maintain an international law blockade, may not be materially able to enforce the conditions of a true blockade upon foreign vessels upon the high seas even though they be approaching the port. Within the territorial limits of the country, their right to prevent the access of supplies to their enemy is practically the same on water as on land-a defensive act in the line of hostility to the enemy. 3. There is no call for the Government of the United States to admit in advance the ability of the insurgents to close, within the territorial limits, avenues of access to their enemy. That is a question of fact to be dealt with as it arises. But in no case would the insurgents be justified in treating as an enemy a neutral vessel navigating the internal waters-their only right being, as hostiles, to prevent the access of supplies to their domestic enemy. The exercise of this power is restricted to the precise end to be accomplished. No right of confiscation or destruction of foreign property in such circumstances could well be recognized, and any act of injury so committed against foreigners would necessarily be at the risk of the insurgents. The question of the nature and mode of the redress which may be open to the government of the injured foreigners in such a case hardly comes within the purview of your inquiry, but I may refer to the precedents heretofore established by this Government in enunciation of the right to recapture American vessels seized by insurgents." Mr. Hay, Sec. of State, to Sec. of Navy, Nov. 15, 1902, International Law |