CHAPTER XIII SEIZURE OF PASSENGERS ON FOREIGN MERCHANT VESSELS IN LATIN-AMERICAN PORTS TH HE practice of boarding passenger ships of foreign countries, when in Latin-American ports, with armed forces, and of seizing passengers without reasonable cause, is one which should be finally and definitely stopped. War-ships are not under the local jurisdiction of the foreign ports where they may happen to lie, and their commanders will resist with force any attempt by local or national authorities to board them for the purpose of search or seizure, or for any other hostile purpose whatever. Merchant vessels lying in a foreign port are subject, under international law, to a dual jurisdiction. As regards the maintenance of order, the commission of crimes aboard, etc., the municipal authorities have jurisdiction; and where the vessels fly the American flag, the United States courts also have jurisdiction over crimes committed aboard. The local jurisdiction conceded by international law to the municipal authorities is scandalously abused in the ports of Central and South America. Not infrequently revolutionary bands will seize a port and then board the ships, and arrest every passenger against whom they have a grudge. They all, even to the barefoot machetero, know that our State Department has ruled, time and again, that the "local authorities" can remove from a merchant ship a passenger even a through passenger - provided it is alleged that he is a criminal. Neither the captain nor the United States consul has authority to examine the evidence (if there is any) on which the charge is made; and hence these local bandits are accustomed to board a ship, under the United States flag, and seize passengers at their pleasure, and shoot them down if resistance be made. Let us suppose that a passenger leaves New York for Curaçao on an American passenger steamer which touches at La Guayra or Puerto Cabello en route. He may never have been in Venezuela, and have no intention of going there; but the local authorities at one of those ports may, in abuse of privilege, enter the steamer and seize the passenger; and the next thing for him may be a dungeon - or death by assassination! It should not be possible that this unmitigated outrage could be perpetrated under the American flag. Before we concede to a nation the right to enter our merchant ships and arrest our passengers, we ought to be very sure that the nation is a civilized nation, with stable and effective courts of justice, and that this right will not be abused. So many outrages have been committed on our vessels, as well as on those of European nations friendly to us, that it would be well for the American people to lay down some rules for the guidance of the State Department, and to the end that this privilege, so deplorably abused, be withdrawn, or its abuse be stopped. A few typical cases are here cited to show the animus of our Latin-American neighbors, their complete disregard for the flag of the United States, and their readiness to abuse the privileges conceded to them by civilized powers. I. ASYLUM ON BOARD MERCHANT VESSELS DENIED Secretary of State W. Q. Gresham, on December 30, 1893, writing to Mr. C. P. Huntington, President of the Pacific Mail Steamship Company, 35 Wall Street, New York, observed, as to the bombardment of the Costa Rica at Amapala, Honduras: "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 offence 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 offence 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 doctrine thus expressed by Judge Gresham is responsible for many of the outrages committed in Latin-American ports on passengers on American merchant vessels. As an abstract expression of international law, applicable to our dealings with the great civilized powers, it is verbally correct; but even in such cases important reservations and modifications are necessary before accepting the proposition. But the doctrine will not apply at all to the semi-civilized powers, such as Turkey and China, and to other minor States. Indeed in these latter countries the United States, by means of treaties and statutes, has invested its ministers and consuls with quasi-judicial powers, in so far as our own citizens are concerned. In China we have established a United States Circuit Court with extraterritorial jurisdiction. (See Act of Congress, June 30, 1906, United States Statutes at Large, 1905-1906, p. 814.) In so far as these countries are involved, therefore, the policy of the United States not alone inhibits searches and seizures aboard our ships, but local jurisdiction over our citizens is denied even on shore. Section 4295 of the United States Revised Statutes authorizes the captain and crew of an American merchant vessel to resist searches and seizures when attempted by insurgent vessels not recognized by the United States as belligerents. "The commander and crew of any merchant vessel of the United States, owned wholly or in part by the citizens thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States." The same doctrine might with propriety be made applicable to searches and seizures by revolutionists from on shore, in harbors, or other waters in which American merchant vessels may be lying. A different question arises when the attempted search or seizure is made by the authorities of a government which we have recognized, whether the same is a regularly constituted government or a de facto government, the pretended authorities of which obtained power through revolution. This raises the question of asylum on board a merchant ship flying the American flag, and also the assumed legal right of such authorities to seize passengers who are travelling on through tickets from and to other ports and countries. The United States has placed itself in the untenable position of according full sovereignty to the Latin-American dictatorships, and, as might be expected, it has pronounced in favor of permitting these dictatorships to exercise a free hand in the premises. Nevertheless our government has been compelled to recognize the existence of these revolutions, and, although reluctantly, to follow to some extent in the footsteps of the great civilized powers in protecting helpless victims from the savagery of armies engaged on both sides of these interminable troubles. Thus it is prescribed by Article 308 of the Regulations for the Government of the Navy, 1905, as follows: "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob Officers must not directly or indirectly invite refugees to accept asylum." |