OPINIONS OF MR. BAYARD.

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In another communication two days later Mr. Bayard says:

It has not as yet been possible to ascertain whether these articles are intended to be used in expeditions hostile to the Colombian Government, but even should this prove to be the case, this Government, however much it may regret the encouragement in any manner from this country of the revolt against the constitutional authorities of its sister Republic, must maintain the right of its citizens to carry on without a violation of the neutrality laws the ordinary traffic in arms with the rebellious or other parts of that Republic, as more particularly set forth in my note to you of the 25th instant. (U. S. Foreign Relations, 1885, pp. 238, 239.)

Mr. Bayard, in 1885, writing of certain attempts of the Government of Colombia to close by decree ports held by the Colombian insurgents, said:

After careful examination of the authorities and precedents bearing upon this important question, I am bound to conclude, as a general principle, that a decree by a sovereign power closing to neutral commerce ports held by its enemies, whether foreign or domestic, can have no international validity and no extraterritorial effect in the direction of imposing any obligation upon the governments of neutral powers to recognize it or to contribute toward its enforcement by any domestic action on their part. Such a decree may indeed be necessary as a municipal enactment of the state which proclaims it, in order to clothe the Executive with authority to proceed to the institution of a formal and effective blockade, but when that purpose is attained its power is exhausted. If the sovereign decreeing such closure have a naval force sufficient to maintain a blockade, and if he duly proclaim such a blockade, then he may seize, and subject to the adjudication of a prize court, vessels which may attempt to run the blockade. If he lay an embargo, then vessels attempting to evade such embargo may be forcibly repelled by him if he be in possession of the port so closed. But his decree closing ports which are held adversely to him is, by itself, entitled to no international respect. Were it otherwise the de facto and titular sovereigns of any determinate country or region might between them exclude all merchant ships whatever from their ports, and in this way not only ruin those engaged in trade with such states, but cause much discomfort to the nations of the world by the exclusion of necessary products found in no other market.

The decree of closure of certain named ports of Colombia contains no information of an ulterior purpose to resort to a pro

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claimed and effective blockade. It may, therefore, be premature to treat your announcement as importing such ulterior measures; but it gives me pleasure to declare that the Government of the United States will recognize any effective blockade instituted by the United States of Colombia with respect to its domestic ports not actually subject to its authority. This Government will also submit to the forcible repulsion of vessels of the United States by any embargo which Colombia may lay upon ports of which it has possession when it has power to effect such repulsion; but the Government of the United States must regard as utterly nugatory proclamations closing ports, which the United States of Colombia do not possess, under color of a naval force which is not even pretended to be competent to constitute a blockade. (Foreign Relations U. S., 1885, p. 256.)

In the year 1886 Mr. Bayard sent the following communication to Mr. Hall, United States diplomatic representative in Central America:

DEPARTMENT OF STATE, Washington, February 6, 1886. SIR: I transmit, for your information, copies of the correspondence exchanged between Mr. Jacob Baiz, consul-general of Honduras at New York, and this Department touching the movements of the American steamer City of Mexico outside of the jurisdiction of the United States. It will be seen from the letters of Mr. Baiz that he labors under the impression that to prevent a violation of our neutrality laws this Government should instruct its vessels of war to keep a watch on the City of Mexico, having, as is alleged, an unlawful purpose against the peace of Honduras.

I have not thought it necessary to discuss the matter with Mr. Baiz. I have therefore confined myself to the statement that the acts complained of were committed, if at all, against the sovereign neutrality of Great Britain and should be dealt with according to British law, and that this Government had already given abundant proof of its desire to prevent any violation of its neutrality within the jurisdiction of the United States.

With these prefatory remarks it appears not inappropriate to add a few general observations upon the subject.

It is usual, when application is made to this Department to take action to prevent what are supposed to be impending breaches of neutrality, to base such application on affidavits, or on statements of proof susceptible of being reduced to affidavits, on which the interposition of the Department is asked. This requisite has not been insisted upon in the present instance, for, supposing the case presented by the letter of Mr. Baiz to be fully verified, it is not one on which any present action of the Department could be based.

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Breaches of neutrality may be viewed by this Government in two aspects: First, in relation to our particular statutes, and secondly, in respect of the general principles of international law. Our own statutes bind only our own Government and citizens. If they impose on us a larger duty than is imposed on us by international law, they do not correspondingly increase our duty to foreign nations, nor do they abridge our duties if they establish for our municipal regulation a standard less stringent than that established by international law.

The complaint that Mr. Baiz makes is, that the steamship City of Mexico, a passenger and freight vessel, claimed to be entitled to carry the flag of the United States, took on board at Belize, January 12 last, when on her ordinary coasting route, some political refugees who it is supposed were meditating hostile action against the Government of Honduras.

It will scarcely be contended that such an act as this, even supposing it would be regarded as a breach of neutrality if committed within the jurisdiction of the United States, can be imputed to the United States when committed in a foreign port; nor can it justly be urged that, because the vessel in question sails under the flag of the United States, it is the duty of this Government to send cruisers to watch her to prevent her from committing breaches of neutrality when on her passage from one foreign port to another. For this Government to send armed vessels to such ports to control the actions of the City of Mexico would be to invade the territorial waters of a foreign sovereign. For this Government to watch its merchant and passenger vessels on the high seas, to stop them if they carry contraband articles or passengers meditating a breach of neutrality, would impose on the United States a burden which would be in itself intolerable, which no other nation has undertaken to carry, and which the law of nations does not impose.

In what has been stated I have referred exclusively to the international obligations imposed on the United States by the general principles of international law, which are the only standards measuring our duty to the Government of Honduras. Whether the City of Mexico, when she returns to her home port, or those concerned in her or in this particular voyage, may be subject to adverse procedure under our neutrality statutes, I have not deemed it necessary here to discuss or decide.

I am, etc.,

(U. S. Foreign Relations, 1886, p. 51.)

T. F. BAYARD.

Opinion of Mr. Blaine. It has quite often happened that during insurrections the established government has tried to obtain the rights of war without admitting its existence. Sometimes, as in 1891 in the case of Chile, pro

hibitions are issued against the importation of certain articles. At this time the Secretary of State of the United States replied to the Chilean minister as follows:

DEPARTMENT OF STATE,

Washington, March 13, 1891.

SIR: I have the honor to acknowledge the receipt of your note of the 10th instant, in which you inform me that your Government has prohibited, until further orders, the importation into the Republic of arms and munitions of war of all kinds.

In conveying this information you request me, if possible, to communicate this decree to the custom-houses of the United States in order that the shipment of such articles to Chile may be prevented; and in this relation you state that an agent of the insurgents in Chile has arrived in the city of New York for the purpose of purchasing arms and munitions of war.

The laws of the United States on neutrality, which may be found under Title LXVII of the Revised Statutes, while forbidding many acts to be done in this country which may affect the relations of hostile forces in foreign countries, do not forbid the manufacture and sale of arms or munitions of war. I am therefore at a loss to find any authority for attempting to forbid the sale and shipment of arms and munitions of war in this country, since such sale and shipment are permitted by our law. In this relation it is proper to say that our statutes on this subject are understood to be in conformity with the law of nations, by which the traffic in arms and munitions of war is permitted, subject to the belligerent right of capture and condemnation.

Since your note has directed attention to the subject of neutrality, it should be stated that our laws on that subject are put in force upon application to the courts, which are invested with the power to enforce them and to inflict the penalties prescribed for their violation. Our statutes not only forbid the infringement in this country of the rules of neutrality, but also impose grave penalties for their infraction.

I will inclose a copy of your note to the Secretary of the Treasury and the Attorney-General.

Accept, etc.,

(Foreign Relations U. S., 1891, p. 314.)

JAMES G. BLAINE.

Opinion of Mr. Sherman.—In a long dispatch to United States Minister Woodford in Spain, November 20, 1897, Secretary of State John Sherman says, among other remarks upon duties of the United States in time of insurrection

It is to be borne in mind that Spain insists that a state of war does not exist between that Government and the people of Cuba;

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that it is engaged in suppressing domestic insurrection that does not give it the right, which it so strenuously denies itself, to insist that a third nation shall award to either party to the struggle the rights of a belligerent or exact from either party the obligations attaching to a condition of belligerency. It can not be denied that the United States Government, whenever there has been brought to its attention the fact or allegation that a suspected military expedition has been set on foot or is about to start from our territories in aid of the insurgents, has promptly used its civil, judicial, and naval forces in prevention and suppression thereof. So far has this extended and so efficient has the United States been in this regard that, acting upon information from the Spanish minister or from the various agencies in the employ of the Spanish legation, vessels have been seized and detained in some instances when investigations showed that they were engaged in a wholly innocent and legitimate traffic. By using its naval and revenue marine in repeated instances to suppress such expeditions, the United States has fulfilled every obligation of a friendly nation. Inasmuch as Spain does not concede, and never has conceded, that a state of war exists in Cuba, the rights and duties of the United States are such as devolve upon a friendly nation toward another in case of an insurrection which does not rise to the dignity of recognized war.

As you are aware, these duties have been the subject of not infrequent diplomatic discussion between the two Governments, and of adjudications in the courts of the United States, as well during the previous ten years' struggle as in the course of the present conflict. The position of the United States was very fully presented by Mr. Fish in his note of April 18, 1874, to Admiral Polo de Bernabe (Foreign Relations of the United States, 1875, pp. 1178 et seq.):

"What one power in such case may not knowingly permit to be done to another power, without violating its international duties, is defined with sufficient accuracy in the statute of 1818, known as the neutrality law of the United States.

"It may not consent to the enlistment within its territorial jurisdiction of naval and military forces intended for the service of the insurrection.

"It may not knowingly permit the fitting out and arming or the increasing or augmenting the force of any ship or vessel within its territorial jurisdiction, with intent that such ship or vessel shall be employed in the service of the insurrection.

"It may not knowingly permit the setting on foot of military expeditions or enterprises to be carried on from its territory against the power with which the insurrection is contending."

Except in the single instance to be hereafter noticed, his excellency the minister of state does not undertake to point out any infractions of these tenets of international obligation so clearly