made, or at another port of the same country, is immaterial to the right of local jurisdiction. "Arbitrary attempts to capture a passenger by force, without regular judicial process, in a port of call, may call for disavowal when, as in the present case at Amapala, the resort to violence endangers the lives of innocent men and the property of a friendly nation. Whether, if force be threatened, the master of the vessel is justified in putting in jeopardy, by his resistance, the interests committed to his care, must be largely a question for his discretion. It is readily conceivable that the consequences of futile resistance to overpowering force may be such as to make the resistance itself unwarrantable. "The so-called doctrine of asylum having no recognized application to merchant vessels in port, it follows that a shipmaster can found no exercise of his discretion on the character of the offense charged. There can be no analogy to proceedings in extradition when he permits a passenger to be arrested by the arm of the law. He is not competent to determine whether the offense is one justifying surrender, or whether the evidence in the case is sufficient to warrant arrest and commitment for trial, or to impose conditions upon the arrest. His function is passive merely, being confined to permitting the regular agents of the law, on exhibition of lawful warrant, to make the arrest. The diplomatic and consular representatives of the United States in the country making the demand are as incompetent to order surrender by way of quasi-extradition as the shipmaster is to actively deliver the accused. This was established in the celebrated Barrundia case by the disavowal and rebuke of Minister Mizner's action, in giving to the Guatemalan authorities an order for the surrender of the accused. "If it were generally understood that the masters of American merchantmen are to permit the orderly operation of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable on the one hand that occasions of arrest would be less often invited by the act of the accused in taking passage with a view to securing supposed asylum, and on the other hand that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the part of this Government." Mr. Gresham, Sec. of State, to Mr. Huntington, Dec. 30, 1893, For. Rel. waters. Captain Johnstone delivered him voluntarily, article 24, contract Government, Pacific Mail. Consul consented. No force employed. No protest entered." Mr. Dawson was informed that this telegram did not fully answer the Department's inquiry, the object of which was to ascertain whether the arrest was made “by regular process of law, under a judicial warrant . . . issued by a court of competent jurisdiction," or whether the prisoner was "taken off the ship by military force, being surrendered by the captain of the ship with the consent of the consul." (Mr. Rockhill, 3d Assist. Sec of State, to Mr. Dawson, Sept. 21, 1895, 149 MS. Inst. Consuls, 573.) The letter to Mr. Huntington was communicated by Mr. Gresham, Secretary of State, to Mr. Baker, United States minister to Nicaragua, Jan. 31, 1894. March 22, 1898, Mr. Sherman, Secretary of State, Merry, Mr. Baker's successor, that he was to be (MS. Inst. Cent. Am. XXI. 290.) instructed Mr. guided by it. As to the case of Moritz Stern, a citizen of the United States, taken from a Chilean passenger steamer at Guayaquil, in Ecuador, see Mr. Uhl, Act. Sec. of State, to Mr. Strobel, min. to Ecuador, May 23 and Sept. 14, 1894, MS. Inst. Ecuador, I. 432, 436, acknowledging the receipt of dispatches. Stern was held in custody. The Department of State expressed itself as well satisfied" with Mr. Strobel's efforts to secure a speedy disposition of Stern's case in the court." Nov. 9, 1892, the authorities at La Guayra, Venezuela, by order of the minister of hacienda, demanded of the master of Case of Mijares. the American steamer Philadelphia the surrender of Pedro Vicente Mijares, a Venezuelan citizen, who had embarked at the Dutch port of Curaçao for New York. No charge of violation by Mijares of the ordinary law of the country was made; he was demanded simply as "an enemy of the Government," and the demand was made orally. He was not a military man, nor did it appear that he was in the service of any enemies of the Government. The civil war had ended a month before, and there had since been no proclamation of martial law in any part of the Republic. The master declined to surrender his passenger, and the customs authorities refused to clear the vessel or to return her register. She was thereupon cleared by the United States consul, acting under the instructions of Mr. Scruggs (then American minister to Venezuela). When it became. known at Caracas that the steamer had been cleared by the consul and would sail, Dr. Rojas, minister of foreign affairs, and Dr. Seijas, legal adviser of the ministry, called on Mr. Scruggs and requested him to order the master to deliver Mijares up. "I courteously but firmly declined to do this," wrote Mr. Scruggs, "and before they left succeeded in convincing them that the captain had acted quite properly in the premises. They denied the truth of the report (then current) that an order had been issued to fire upon the Philadelphia, should she attempt to leave with Mijares on board. . .. The Philadelphia sailed next day (the 10th), but without her register, . . . I have received the assurance of Dr. Rojas that the papers and other papers . . . will be delivered to the consul before the ship returns." a Proceedings were then begun in the courts of Venezuela against the Philadelphia, under the revenue laws, for sailing without a clearance from the custom-house. They resulted, Dec. 2, 1892, in the imposition, by the national judge of finance, at La Guayra, of a fine of 10,000 bolivars (about $2,000) on the master. This judgment. having come in the regular course before the high Federal court for revision, that tribunal, Jan. 12, 1893, reversed it for irregularities in procedure, and ordered a new trial. April 7, 1893, the judicial proceedings were ended by the chief of the executive power, who, considering the peculiarity of the circumstances of the case and that the said [steamship] line has always shown itself strictly observant of its duties," granted, with the advice of his cabinet, a pardon to the steamship and her master." 66 The case of thirty-three men who were expelled from Nicaraguan territory for being implicated in an insurrection, and who, it was apprehended, might attempt to reenter Nicaraguan jurisdiction, did not come within the principle of either the Barrundia case or the Gamez case; and if, when they were attempting to land, they were arrested by the judicial authority on a merchant ship in port, their release or delivery to an American naval commander could not be claimed, but he would be obliged to limit his action to the exercise of good offices so far as possible, in conjunction with the consular representative of the United States, to secure for them fair and open process of law with every opportunity of defence, and, if convicted, leniency of treatment. Mr. Hay, Sec. of State, to Sec. of Navy, July 15, 1899, 238 MS. Dom. Let. 487, enclosing a copy of an instruction to the United States consul at San Juan del Norte, No. 115, May 13, 1899. a Mr. Scruggs, min. to Venezuela, to Mr. Foster, Sec. of State, Nov. 18, 1892, For. Kel. 1892, 637. Mr. Partridge, min. to Venezuela, to Mr. Gresham, Sec. of State, April 11, 1893, For. Rel. 1893, 722-724. 46 CHAPTER VIII. THE HIGH SEAS. I. THE TERM HIGH SEAS." § 308. II. FREEDOM OF THE SEAS. 1. Prohibition of visit and search in time of peace. Incidents and declarations, 1811-1872. Case of the Virginius, 1873. Incidents of 1880-81. Alliança case, 1895. Case of the William Todd, 1896. Rights of cruiser of ship's own nation. Mode of visit. 2. Slave trade. § 310. English prize doctrine, 1810-1813. Case of Le Louis, 1817. Case of the Antelope, 1825. Treaty of Ghent and subsequent discussions. Act of 1820 and subsequent negotiations. The quintuple treaty. Webster-Ashburton treaty. British renunciation of visit and search, 1858. Senate resolution, 1858. . Convention with Great Britain, 1862. General act of Brussels, 1890. § 309. Hostile enterprises--case of the Virginius. (2) Judicial proceedings. § 312. (3) Salvage. § 313. (4) Captures by privateers. § 314. 4. Self-defense. Justified by belligerent commission. Case of the Deerhound. Case of the Virginius. Case of the Mary Lowell. 5. Question of hot pursuit. § 316. 884 "The term 'high seas,' as used by legislative bodies, the courts, and text writers, has been construed to express a widely different meaning. As used to define the jurisdiction of admiralty courts, it is held to mean the waters of the ocean exterior to low-water mark. As used in international law, to fix the limits of the open ocean, upon which all peoples possess common rights, the 'great highway of nations,' it has been held to mean only so much of the ocean as is exterior to a line running parallel with the shore and some distance there from, commonly such distance as can be defended by artillery upon the shore, and therefore a cannon shot or a marine league (three nautical or four statute miles)." Second court of commissioners of Alabama claims, Stetson v. United It was held in this case that section 5 of the act of June 5, 1882, which directed the examination of claims resulting from damage done on the "high seas by Confederate cruisers, although the loss or damage occurred within 4 miles of the shore," did not embrace claims for losses inflicted in the territorial waters of the United States, whether such waters lay within a line drawn 4 statute miles from the shore of the open sea, or within bays which, although more than 3 nautical or 4 statute miles in width, were to be considered as subject to the exclusive jurisdiction of the United States. |