Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Burton to Mr. Seward
Sir: The department will learn from the accompanying decree that President Mosquero has directed that prizes captured by the belligerents in the war existing between Spain and the allied republics of the Pacific may be brought into ports of Colombia, on the condition that they be placed under the jurisdiction of the national supreme court for adjudication.
The decree protests impartiality, but if President Mosquera had the power to do what be has undertaken, the effect would be unfair and injurious to Spain, as the Atlantic ports of Colombia would thereby be converted into naval stations for the allies, who have no station on that ocean, while Spain has.
I happen to know that Colonel Freire, the Peruvian minister here, has said quite confidentially to a colleague that this step has been taken by Colombia at the instance of Peru; that the allies are on the eve of attacking Cuba and Porto Rico, for the purpose of wresting them from Spain and erecting them into an independent republic, to prevent their falling into the hands of the United States; and that eight iron-clad and twenty-four wooden vessels are ready for the enterprise. I do not believe it.
My colleague, the British minister, and I are agreed that the decree is not in consonance with international law. We have deferred taking any notice of it, however, unless ordered to do so by our respective governments. Should a vessel belonging to a citizen or citizens of the United States be seized and taken into a Colombian port before I am honored with the instructions of the department, which is not likely, I shall esteem it my duty to demand the immediate release of such vessel, and in case of a refusal to report the case to our nearest naval officer, with a request that he rescue it by force.
The annexed paper, D, from a newspaper of this city, seems to put this proceeding in about a correct light.
It was known here generally, long before the date of the paper C, that the cannons therein mentioned had crossed the isthmus and been placed on fortifications on the Pacific coast from Callao to Valparaiso.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
[From El Registro Oficial, No. 796.—Translation.]
Report of the Secretary of the Interior and Foreign Relations on the adjudication of marine prizes.
Señor President: I have examined the question of prize tribunals and am of the following opinion:
The universally recognized principle of international law is, that the jurisdiction of prize [Page 588] causes belongs exclusively to the nation of the captor, insomuch that a sentence pronounced by a tribunal of an allied nation is considered illegal.
According to many cases decided by the British tribunals the sentence of a prize court sitting under the commission of a belligerent in neutral territory is not considered valid, although the proceedings be had by consent of the neutral powers.
This is the doctrine generally recognized, but Wheaton establishes two exceptional cases in which the neutral may adjudicate the prizes which may be brought into its ports: 1st, when the capture is made within the limits of a neutral state; and 2d, when the captor has armed his vessel in said territory. He then adds that these exceptions to the exclusive jurisdiction of the courts of the nation of the captor have been extended by the civil regulations of some countries to the restitution of the property of their own subjects in all cases in which the prize is illegal and brought to their ports; and thus he attributes to the neutral tribunal the decision of the question of good or bad prize, provided the captured property is brought into the neutral territory.
The marine ordinance of Louis XIV, of 1681, contains also a like principle, and its justice is vindicated by Valin upon the ground that this is done by way of compensation for the privilege of shelter given to the capturing vessel and the prize in the neutral port. There is no doubt that the neutral having the right to admit or not the prizes into its ports, may impose the condition of adjudicating them in case they come in, although this does not deprive the tribunal of the captor of exclusive jurisdiction to decide upon the legality of the capture, either while the prize remains in the neutral port or if it is carried infra presidio to the place where the tribunal is sitting.
Azuni gives also this latitude to the jurisdiction of neutrals, but Bello thinks it not conformable to the present custom, and particularly to the practice of the United States of America, whose Supreme Court, in the case of the “Invincible,” declared that American tribunals were not competent to redress wrongs which might be supposed to have been committed on the high seas against the property of the citizens of said states by a cruiser carrying a lawful commission from a friendly power; and said author thus limits the jurisdiction of neutrals to the case of a cruiser whose prize is carried into a friendly port, has violated the neutrality of the power in whose territory it is found, either by having been armed or manned there, without its consent, or by committing acts of hostilities in its waters.
In the case of the “Estrella” it was declared by the Supreme Court that the right to adjudicate prizes and settle all questions relating to them belongs exclusively to the nation of the captor; but that an exception to this rule is, that when the captured vessel is found under the batteries of a neutral power the courts of the latter have power to inquire whether the capturing vessel has infringed its neutrality; and this being the case, they are bound to restore to the original owners the property captured by cruisers illegally armed, fitted out, or manned in its ports; it being to be borne in mind that the exemption enjoyed by the vessels belonging to the marine of a foreign state in the ports of a neutral power by leave of the sovereign, express or presumed, does not extend to the ships and merchandise carried into said ports, which have been captured in contravention of the neutral privileges of that power.
Here, then, is the only incontrovertible and rightful exception which gives jurisdiction to neutrals over prizes carried into their ports, and which rests on the fact that the belligerent has violated its neutrality.
This dividing line, says Bello, between belligerents and neutrals, so far as it relates to prizes, is clear and precise.
Notwithstanding this, it is sustainable, in my opinion, that the neutral has the right to adjudicate on prizes voluntarily or forcibly brought into its ports, provided the belligerent who has the right to do so agree to it, and that the neutral extend the principle to the other belligerents, in order that its treatment of all be alike, which is the duty of neutrals.
No one can deny that one nation may grant to another the exclusive and perfect right which it has to adjudicate its prizes, for in so doing offence is offered to nobody; and neither can it be denied that the neutral, without losing that character, may accept that right, provided, as has just been said, it observes the same conduct towards the other belligerent. In this case the neutral does not judge by delegated power, but in virtue of its own authority, in consequence of the exclusive right of the belligerent to judge having been transferred to the neutral.
I know of no author who treats the question under this aspect. It seems that the case has not been foreseen; but it is deducible from the principle that a neutral may do all in aid of one belligerent which he may do for the others, provided the neutral does not engage in the war, directly or indirectly, that prizes may be adjudicated by neutrals under the conditions indicated, and with greater reason, if it is considered that the doctrine is sustained, as we have seen, by some on the ground that the act is not a hostile one, and by the duty which every neutral is under to protect the interests of its citizens, which may easily be effected by the captures of belligerents.
[Translated from El Registro Oficial, No. 796.]
Decree upon the adjudication of maritime prizes.
J. C. MOSQUERA, GRAND GENERAL, PRESIDENT OF THE UNITED STATES OF COLOMBIA.
The preceding report of the secretary of the interior and foreign relations having been considered, and, considering—
1. That the war between Spain and the republics of the Pacific unfortunately has not terminated.
2. That it is the duty of the United States of Colombia, as a nation neutral in that war, to lend their good offices to the belligerents, to the end that maritime prizes, should captures take place, may be justly adjudicated, provided they shall be brought into the ports of the republic, and the belligerent having exclusive jurisdiction over them shall agree to it;
3. That said prizes may rightfully be adjudicated, also, in case any belligerent shall violate the neutrality;
4. That the government is bound to protect the interests of Colombians that may be affected by the capture of maritime prizes, and for this reason it is indispensable to inquire if the prizes brought within its ports have been taken in violation of the neutral rights of any of the belligerents; and
5. That the government of the Union has the right to permit or deny the entrance of maritime prizes into its ports, and to require as a condition of their entrance, their adjudication by the tribunals of the republic as a compensation for receiving the captors and their prizes—
I decree:
Article I. The cruisers of the allied republics of the Pacific, in the war with Spain, may carry their maritime prizes into any port of the republic, but their adjudication shall belong to the supreme federal court, conformably to the national constitution and law it being understood that the fact of bringing in the prizes shall be proof of the acquiescence of the sovereign of the captor that it be judged by said tribunal.
Art. II. The cruisers of Spain in the war mentioned may carry their prizes into the ports of the republic; but their adjudication shall belong to the supreme federal court, conformably to the national constitution and law, it being understood that the fact of bringing the prizes in shall be proof of the acquiesence of the sovereign of the captor that they be judged by said tribunal.
Art. III. The highest political authority of the port in which the prize may arrive shall require the captor to present the sea papers of the vessel or the property captured, and shall proceed immediately to examine the officers and marines, which proceedings, proofs taken, and original documents of the captured vessel, shall be as soon as practicable reported to the supreme federal court, that it may take, jurisdiction of the case.
Art. IV. The vessels that may be declared good prize may be sold in the ports of the republic.
Art. V. The cruisers shall be permitted to enter the ports of the republic, provided that from injuries or other cause they cannot continue on their way, but they shall not remain more than twenty-four hours or the time indispensable for repairing damages in the judgment of the chief political authority of the port.
Art. VI. Let this decree be communicated to the belligerent nations.
José Maria Rojas Garrido, The Secretary of the Interior and Foreign Relations.
[Translated from El Registro Oficial, No. 802.]
Note of the Secretary of the Interior and Foreign Relations to the government of the State of Panama upon neutrality.
UNITED STATES OF COLOMBIA—SECRETARYSHIP OF THE INTERIOR AND FOREIGN RELATIONS—NUMBER 41, SECTION 2—DEPARTMENT OF THE INTERIOR.
Bogota, November 18, 1866.
Señor Secretary of State of the government of the sovereign State of Panama:
The President of the Union has learned that there are some rifled cannon and various other elements of war in that State on their way to Peru, and as the transit of said elements over the isthmus is contrary to the neutrality of Colombia in the existing war between the Pacific [Page 590] republics and Spain, and which the government of the State has so many times been notified to strictly observe, the government orders that you immediately take possession of said cannon and place them in the possession of the commander of the national park in Panama, and also any other elements of war that may pass the isthmus, destined for either of the belligerents.
Your attentive servant,
The law of nations revised and simplified by the executive power.
Our indefatigable President, who has made a vow to make all crooked things straight, and the straight crooked, has not confined himself in his recreations to making amendments to the constitution and laws of the country; he has also condescended to extend his protecting hand over the maritime powers, and has lately corrected and added to international law in the matter of prize courts.
The Registro Oficial, No. 796, contains a decree of the executive power, preceded by a report of the secretary of foreign relations in which it is declared “that the cruisers of Spain and of the allied republics of the Pacific, between which war now exists, may bring their prizes into any port of Colombia; but they must be adjudicated by the supreme federal court, according to the constitution and law, it being understood that the fact of bringing the prizes is proof of the acquiesence of the sovereign of the captor.”
As Colombians we feel deeply humiliated at seeing an ex-president of the supreme court and the national executive officially and solemnly proclaim as principles of international law ideas that may occur to them, thus exposing themselves to the ridicule of the diplomatists resident at the capital, and of every well-informed man to whose knowledge the report and decree may come.
The secretary says, in his report, that the courts of the country of the captor have exclusive jurisdiction to adjudicate the prizes taken by him. This rule is well known. It forms part of the history of civilization itself, and has been uniformly maintained by the maritime nations of the earth down to our day, with the exception of a temporary innovation made by France during the political convulsions in that country at the close of the last century.*
The common sense as well as legal reason of this rule is, that the sovereign of the captor being responsible to the governments of other nations, the subjects of which have been wronged by his cruisers, it is but just that he should have the exclusive right to inquire into their conduct through the agency of his courts. A sentence of condemnation in a prize cause, by a legal prize court having complete jurisdiction, protects the purchase of the prize in his possession, and justifies the captor before his own sovereign, but it is not conclusive as to other parties. Here the responsibility of the captor ends, and that of the sovereign begins, and the governments of other nations whose subjects have been wronged by the captures or by a sentence not in conformity to public law, will hold that of the captor liable therefor. This is A B C law learning, ignorance of which would in most countries condemn the merest novice in jurisprudence as an incorrigible dunce.
If either belligerent named in the decree to which we allude should accept the offer of the President of Colombia to receive prizes in the ports of the republic and to have them adjudicated by the supreme federal court, Colombia will in every case be responsible for the mismanagement in her ports of captured property brought into them, and for the mistakes and erroneous sentences of that court.
The exceptions named by the authors to which the secretary refers only confirm the inexorableness of this rule, and in themselves go far towards refuting the conclusion reached by him. A belligerent has the right to demand impartiality of neutrals and security within their jurisdictional limits, and may hold them responsible for his property captured or destroyed there by an opposing belligerent. In the cases of injury to the neutral by violating his neutrality the law of nations permits him to exercise a limited jurisdiction by way of civil reprisal or indemnity, and to redress his own wrongs, the means of doing which being in his own hands in the shape of the illegally captured property. The only question, however, for the neutral court in such cases, as well as the case provided for by articles 14 and 15 of the famous ordinance of Louis XIV, is from the very nature of this exceptional jurisdiction simply one of prize or no prize. If the capture be wrongful in the first case, for either of the reasons upon which the jurisdiction rests, or for any reason in cases to which the provisions of the ordinance referred to are applicable, the neutral court restores the property to its original owner. [Page 591] If the capture be lawful or good prize the neutral court has no jurisdiction, and the prize is dismissed for adjudication by the courts of the country of the captor. The neutral court can in no case condemn the prize. The courts of the capturing belligerent alone can condemn.
Some neutral nations; into the ports of which the property of their subjects captured by a belligerent on the high seas may have been brought, insist, as a compensation for receiving such captures, on the right to decide the question of prize or no prize as to the property belonging to their own subjects. This jurisdiction is also a limited one, is confined to the only parties in interest and does not, as a general or complete prize jurisdiction, affect other parties. It is more in the nature of an arbitration than the forced jurisdiction of a court, and therefore innocent as to the rest of the world. Its exercise is confined to restoring the property wrongfully captured from the subjects of such nations, instead of their having to go to the courts of the captor’s country. The neutral court in such case has no jurisdiction as to the property of subjects of other nations so captured, neither has it jurisdiction to condemn under any circumstances if the capture turn out to be lawful; as we have said before, belligerent courts alone have that power.
Why should the President of Colombia confer complete jurisdiction on the supreme federal court by way of compensation for admitting into our ports the prizes and their convoys of Spain and the Pacific allies, when the supposed compensation can be none else than a heavy burden—a fearful responsibility to be eschewed at all hazards? It is certain that no other nation whose government is influenced by good sense would accept such a burden out of the mere love of dabbling in everything, as the President of our republic takes upon his shoulders. It is no less than a reckless and unwarrantable attempt at innovation and to invade the rights of other nations, and will consequently be found offensive to them, should it more than excite their ridicule. They cannot attribute to a proceeding so unprecedented and unaccountable any but unworthy motives when no good end could be served by it, if it could be carried out, but which fortunately will not be the case. It is not at all probable, however, that other nations will be under the necessity of interfering in the matter further than by friendly remonstrance; for it is not likely that any people far enough advanced to be able to seize prizes will intrust them to the adjudication of the tribunals of a country whose government shows such palpable ignorance in a most commonplace matter with other peoples as that manifested by that of Colombia in the report of its foreign secretary and the decree of its President, of which we are treating.
The secretary says, with a coolness that argues conviction at least, but does not sustain it by reference to any author, “that no one can deny that one nation may concede to another the exclusive and perfect right it has to judge prizes, for in so doing offence is offered to nobody, and neither can it be denied that a neutral without losing that character, may accept that right provided he observes the same conduct towards all the belligerents”
These are the very things we do controvert, and which no one can truly affirm; for they are utterly at war with the doctrines of all writers on international law and the immemorial uniform usage of maritime nations.
Had the learned secretary given due attention to the paragraph of the distinguished publicist next after that from which he has extracted so copiously, he would have been saved the mistake of supposing that the vacuum exists in the code of nations which the President has hastened to fill, and would likewise have escaped the fatal error of asserting the principles which we have just quoted in substance from his report. He would have found it there expressly and emphatically declared, in accordance with all writers on the subject, that the exclusive jurisdiction of which he speaks cannot only not be delegated to be exercised in neutral territory, but that the neutral can neither consent to its exercise there, nor exercise it himself, and for the simple reason that the law of nations does not permit it. Not the belligerents alone are interested in this jurisdiction; it concerns the whole world, for the vessels of the whole world, and more particularly of neutrals, are liable to be captured in any naval war between any two or more nations. Prize courts and their jurisdiction, well understood and defined, have been established and assented to by general public law and their organization and powers can be changed only by general public law. It is not for belligerents, or a neutral, as the President of Colombia in the present instance, to circumscribe or enlarge, or modify that jurisdiction. The voice of civilization alone can do that, for it is the work of the aggregated civilization of mankind, whose interests depend upon it, and who have it in joint keeping.
The secretary seems not to have remembered that the condemnation of prizes is styled by law writers “the last act of hostility,” as it is in its effects one of the highest acts of hostility. By its exercise alone the party would lose his neutrality. He would, in fact, become an active participant in the war; and should he, as the President’s decree presupposes, condemn prizes for all the belligerents, he would find himself in the anomalous predicament of encouraging and aiding in the war, by committing acts of hostility for and against all parties.
The secretary, in fact, mistakenly deduces his newly discovered doctrine to meet a deficiency never before known, as he believes, and which discovery is to redound to the honor or ridicule of Colombia, from the rule which allows a neutral to give the same impartial assistance to all belligerents, if in so doing he commits no hostile act, or takes no hostile part in the war. But we have seen that the adjudication of prize cases with the consent of the capturing [Page 592] power, deduced by the secretary from this rule, would be a hostile act, and is therefore forbidden by the admonitory part of the rule itself; and it is to be borne in mind that this impartial aid on the part of neutrals, spoken of by writers, and referred to by the secretary, is limited to material aid, and not to exercise of brain-power, such as the holding of prize courts. Besides the secretary seems to have forgotten that new usages or rules of international law cannot be established by deduction or analogy. All speculation is positively excluded. So nearly perfect has that code been considered from time whereof the memory of man runneth not to the contrary, that the only allowable method for reforming or changing it is by treaty; and such change is not binding on the world until a majority at least of the world has assented to it. The whole system is, in the main, the work of gradual accretion, based on the consent of ages, and not of sudden acquisition or innovation.
It may not be amiss to remind the secretary that the greatest admiralty judge of the past and present century has, with approbation, held the following language, with reference to the very question under consideration: “In my opinion if it could be shown that, regarding mere speculative principles, such a condemnation ought to be deemed sufficient, that would not be enough; it must be shown to be conformable to the usage and practice of nations. Where it (the usage and practice) stops you are not at liberty to go further, and to say that more general speculative principles bear you out in further progress. It is not my duty to admit that because one nation has thought proper to depart from the common usage of the world, and to meet the notice of mankind in a new and unprecedented manner, I am under the necessity, on that account, of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance independent of all practice from the earliest history of mankind. The institution must conform to the text law, and likewise to the constant usage upon the matter.” The secretary expressly informs us that there is no usage or text law sustaining his conclusion. It is a mere deduction from general principles, which we have seen is not admissible to change established usages in matters of international law. Besides, his deduction is positively forbidden by usage and text law.
Moreover, another insuperable objection would seem to present itself to this extraordinary assumption of the President of Colombia to regulate matters of universal concern. The validity of the sentences of a prize court depends in part on the legal organization of the court, and the legality of its jurisdiction, when tested by the laws of the country in which it sits A want of either requisite renders its sentences absolutely null. Now, whence does the President derive the authority to confer this jurisdiction to adjudicate prizes of foreign belligerents on the supreme federal court? The attempt is a palpable attempt to violate the law of nations, which law is a part of the constitution and laws of the republic. The powers and jurisdiction of that court are given and strictly defined by this constitution and these laws, and neither gives the President the power to interfere with either. His decree would seem, therefore, to be as futile as the pope’s bull against the comet. For the power of the court, as the court of a neutral nation, to adjudicate the prizes of belligerents by the consent of the captors, is not among the powers conferred on it by the constitution or laws, expressly or by implication.
The truth is, the arbitrariness of General Mosquera, and his inordinate love of interfering in matters that do not concern him, have on this occasion passed all bounds of seriousness and reached the utmost height of ludicrousness. The chief of a nation which has not a single vessel, whose commerce is entirely in the hands of other nations, destitute of experience in naval warfare, and palpably benighted in matters of maritime laws and usages, with an air of presumption ridiculous to behold, peers up his head above the great naval powers, and overturns the established usages of civilization with respect to the most important of all maritime operations, coeval in its origin with civilized warfare, and accepted by the wisdom of ages.
- Phillimore contends that prizes may also be adjudicated by the courts of the captor’s ally for the reason that unum constituunt civitatem. But Chancellor Kent, in his Commentaries on American Law, vol. 1, page 103, says, “the court of an ally cannot condemn,” and Wheaton is no less positive.—Elements of International Law, part 4, chap. 2, sec. 13–16.↩