"The killing of General Barrundia on board the Pacific Mail steamer Acapulco, while anchored in transit in the Barrundia's case. port of San José de Guatemala, demanded careful inquiry. Having failed in a revolutionary attempt to invade Guatemala from Mexican territory, General Barrundia took passage at Acapulco for Panama. The consent of the representatives of the United States was sought to effect his seizure, first at Champerico, where the steamer touched, and afterwards at San José. The captain of the steamer refused to give up his passenger without a written order from the United States minister; the latter furnished the desired letter, stipulating, as the condition of his action, that General Barrundia's life should be spared and that he should be tried only for offenses growing out of his insurrectionary movements. This letter was produced to the captain of the Acapulco by the military commander at San José, as his warrant to take the passenger from the steamer. General Barrundia resisted capture and was killed. It being evident that the minister, Mr. Mizner, had exceeded the bounds. of his authority in intervening, in compliance with the demands of the Guatemalan authorities, to authorize and effect, in violation of precedent, the seizure on a vessel of the United States of a passenger in transit charged with political offenses, in order that he might be tried for such offenses under what was described as martial law, I was constrained to disavow Mr. Mizner's act and recall him from his post." President Harrison, annual message, Dec. 1, 1890. The case of Barrundia, referred to in the foregoing passage, has been much discussed. In these discussions the precise ground of Mr. Mizner's recall, as stated by President Harrison, has often been lost sight of. It seems to be assumed that Mr. Mizner was censured for his failure to assert a right of asylum, but this is hardly accurate. President Harrison, it is true, speaks of Barrundia's seizure as having been made "in violation of precedent," referring, of course, to what had been the practice in Central America. But he also states that when the Guatemalan authorities went on board the Acapulco to seize Barrundia, they read Mr. Mizner's letter authorizing that step as their warrant; and it was for "intervening" "to authorize and effect" the seizure that Mr. Mizner was recalled.

When Mr. Mizner made his first report of the case by telegraph, the Department of State replied that "Barrundia entered the jurisdiction of Guatemala at his own risk, and it was for the Guatemalan authorities to assume jurisdiction at their own responsibility and risk; that the Department regretted his having advised or consented to the surrender, particularly as violation of the ordinary laws of Guatemala was not charged, and as the only allegation was that he was to be treated as an enemy under martial law." (Mr. Whar ton, Act. Sec. of State, to Mr. Mizner, min. to Cent. Am., Sept. 2, 1890, For. Rel. 1890, 90.)

As to General Barrundia's revolutionary movements in 1888-1890 and his reported efforts to raise an expedition in Mexico against the Government of Guatemala, see Mr. Bayard, Sec. of State, to Mr.

Bragg, min. to Mexico, Feb. 27, 1889, MS. Inst. Mexico, XXII. 363, referring to Mr. Bragg's No. 188 of Dec. 15, 1888; Mr. Bayard, Sec. of State, to Mr. Whitehouse, chargé, Dec. 15, 1888, MS. Inst. Mex. XXII. 325, referring to Mr. Whitehouse's No. 207, of Dec. 6, 1888; Mr. Blaine, Sec. of State, to Mr. Ryan, min. to Mexico, Feb. 10, 1890, MS. Inst. Mex. XXII. 526, enclosing copy of a dispatch from Mr. Mizner, No. 66, of Jan. 20, 1890; Mr. Wharton, Act. Sec. of State, to Mr. Ryan, min. to Mexico, tel., Aug. 7, 1890, MS. Inst. Mex. XXII. 601.

"In September, 1884, . . . an oral request was made by Señor Cruz, then minister for foreign affairs, of Mr. H. Remsen Whitehouse, the consul-general of the United States, looking to his concurrence in the proposed detention of two men, Modesto Huerte and Francisco Ruiz Sandoval, who were alleged to have taken an active part in a then recent insurrection on the Mexican frontier, and who were passengers in transit on the Pacific Mail steamer Clyde, then lying in the port of San José. Mr. Whitehouse, with commendable discretion, answered Señor Cruz in writing that he did not consider himself authorized to act in the matter; and the arrest was not effected.

"A still later case is that of Gomez [Gámez], in Nicaragua, to which you advert as more than justifying your course in respect to General Barrundia. I have carefully examined that case, and am compelled to entertain a very different impression.

...

"Mr. Bayard, then Secretary of State, in his instruction to Mr. Hall, No. 226 of March 12, 1885, after reviewing the facts so far as known and adverting to the incompleteness of the information as to the proceeding against the captain, said: Under the circumstances, it was plainly the duty of the captain of the Honduras to deliver him (Gomez) up to the local authorities upon their request.' "By this, I take it, Mr. Bayard expressed his opinion that the captain, being within the local jurisdiction of a foreign state, might not resist the orderly application of its law to a passenger on board his ship. There is no suggestion that it was the duty of the United States minister to intervene by concurrence or express consent to effect the arrest, either with or without conditions as to the nature of the proceedings against the accused or the penalty to be inflicted. I have yet to find in the records of this Department the faintest trace of any instruction to that end or the slightest warrant for the assumption by any diplomatic or consular representative of authority so to act. It should also be noticed that Mr. Bayard discussed the situation simply from the point of view of the absolute jurisdiction of the country in which the port lies. . . . But between the general doctrine as broadly laid down by my predecessor in office and your action in respect to General Barrundia's seizure there is an impassa

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ble space. I am aware that it may be said that after all you merely advised the captain of his duty. But the captain did not simply seek advice. In his telegram from Champerico he says that on his arrival at San José he will place himself under the orders of the American minister.' He again telegraphed to you later from Champerico that he was awaiting your instructions,' and that at San José he expected your written orders.' In his last telegram to you, dispatched from San José on arriving at that port on the evening of August 27, he categorically inquires: Shall I deliver General Barrundia to the authorities here? If so, please send me a letter with your signature to that effect."

"There is not here the slightest suggestion that Captain Pitts proposed to act otherwise than by your orders and under your responsibility. It was under these circumstances that you wrote the letter which became, in the hands of a Guatemalan official, the pretext of the attempted seizure of General Barrundia.

“I have adduced ample evidence to show that in respect to political offenders a very considerable and important exception has in practice been made in Spanish-American countries to the general rule as to the exercise of jurisdiction over foreign vessels. The same exception is also found to exist there in the case of asylum in foreign legations. . . . The causes that have operated to foster the maintenance of an asylum for political offenders in legations have contributed, perhaps even more powerfully, to secure a place of refuge for them on foreign vessels. In the first place, their presence on the latter, whether they are simply fleeing from pursuit or are in transit from one foreign country to another, being connected with the purpose of immediate departure, does not so directly tend to fan and perpetuate the popular frenzy as the spectacle of immunity without flight. In the second place, the principle means of communication between the countries of Spanish America is by water, and it has been a matter of common interest to permit such communication to be undisturbed by political events. These considerations peculiarly apply to the vessels of the Pacific Mail Steamship Company, which for many years have been the principal vehicles of transportation, especially for passengers, between several of those countries. Plying between San Francisco and Panama as terminal points, they call at various Central American ports, halting as long as may be necessary to unship and ship cargo, and lying at anchor for that purpose some distance from the shore. While it is true that, being in the ports of the country, the mere circumstance that they are not fastened to a wharf or brought close inshore does not exempt them from the local jurisdiction, yet it is proper to be taken into account as an explanation of the fact that considerations of convenience and interest have

been more important and actual than the question of public order and tranquillity.

"It is not doubted that in the many years during which the vessels of the Pacific Mail Steamship Company have plied between San Francisco and Panama they have carried scores and hundreds of persons who have been concerned in political broils and insurrectionary movements in the countries at whose ports they call. Yet the Department is not informed of a single instance in which the peace of the vessel has been disturbed by the seizure of a person on board for any political cause. So far as the Department is able to ascertain, it is the common opinion that such a right of seizure is not asserted or supposed to exist. This is the common opinion' of which Chief Justice Marshall spoke as evidence of that common usage' which determines the law. No better evidence of that opinion could be adduced than the instances which have been disclosed, and with them we may include that of General Barrundia himself, of political fugitives who have gone on board of those vessels knowing that they would call at ports in which their lives would be sacrificed if they went on shore.

"I have said that no better evidence than this fact could be adduced. There is, however, one other circumstance that may be regarded as still more significant, and that is the conduct of the Guatemalan authorities on this particular occasion. To place this in its true light it is only necessary briefly to summarize the various steps taken by them up to the time of the attempted seizure, as follows:

"(1) The communication of the commandant at Champerico to the consular agent of the United States at that place, informing him that the Government of Guatemala intended to seize General Barrundia and requesting him to lend his aid so that the general might be delivered up.

"(2) The reference in this same communication to the extradition treaty, which was said to apply to the case.

"(3) The telegram of Mr. Hosmer to the consular agent at Champerico on the 25th of August, placing the right of. seizure on the ground that the Government of Guatemala could search foreign vessels in her own waters for persons suspected of hostility in time. of war.'

"(4) The repetition of this telegram to the captain of the Acapulco at the request of the President of Guatemala.

"(5) The refusal of the captain of the Acapulco, accustomed to ply in those waters, to surrender his passenger, and his notification that he placed himself under the orders of the United States minister.

"(6) The omission of the authorities at Champerico, in the face of this refusal, although they had the full sanction of the consulgeneral of the United States, to make the seizure at that place.

"(7) The assertion in the letter of the minister of foreign relations to Mr. Hosmer of a right to search foreign vessels in territorial waters in time of war and capture those suspected of being hostile.

"(8) The reference in the same letter to the contract with the company as the basis of a right to search and capture.

"(9) The guaranty given to you by the President and secretary of foreign relations on the night of the 26th of August that the life of General Barrundia should be spared and that his prosecution should be limited to certain offenses.

"(10) The reference in your telegram to Captain Pitts of the 27th of August, after your conference with the President and minister of foreign relations, to the right to arrest a person on a neutral ship in time of war.

"(11) Your letter of the same date to the minister of foreign relations affirming that position and asking guaranties for the treatment of General Barrundia.

"(12) The reply of the minister of foreign relations, who seems to shift his ground by an allusion to "common crimes," but still bases his assertion of the right to seize on the doctrines of contraband, which apply only to a state of war, and gives the guaranties which you requested.

"To these twelve evidences may be added the terms in which Señor Anguiano rejected Commander Reiter's proposition, referring again to a state of war and the exercise of belligerent rights, as well as to the alleged existence of martial law.'

"It is no exaggeration to say that these various and unquestionable facts are not compatible with any other theory than that the authorities of Guatemala knew that they were suddenly and without notice violating an established usage. If they had felt that they were acting within their acknowledged right, it would have been unnecessary to appeal to the doctrine of contraband, which was applicable solely to a state of war which had ceased to exist, and which would not, upon the facts then known, have been applicable to General Barrundia, even if war had been flagrant. It is proper to notice that you observed the incongruity of the Guatemalan position as to General Barrundia's status, but, unfortunately, you did not take a stand against it. You observed in your letter to Señor Anguiano of the 27th of August that the case was an unusual one, taken in connection with the peace which was practically concluded last night, and of which a general amnesty was a part.' The case was, indeed, most unusual; for if General Barrundia was in the service of the enemy, he came within the amnesty; if he was not in that service, he could not have been treated as contraband. So that on the one or the other horn of the dilemma the Guatemalan demand must fall.