Mr. Bayard to Baron Schaeffer .
Washington , May 26, 1885.
Baron: I have the honor to acknowledge the receipt of your note of yesterday, whereby you acquaint me with the purport of information, gathered by your Government through Prague newspapers and otherwise, to the effect “that a considerable number of Bohemians (Czechs), residents of Chicago and the environing districts, are going to leave on the 30th instant, at 5 o’clock p.m., by the Hamburg steamer Westphalia, as saloon and steerage passengers, for Prague, Bohemia, ostensibly to witness the opening festivities of the new National Theater in that city,” and add that “as it is quite possible that some of the Bohemian [Page 54] socialists and anarchists, now in this country, may avail themselves of this opportunity for effecting their return to the Austro-Hungarian monarchy, or with a view to smuggle into His Majesty’s dominions pamphlets of revolutionary character or explosives,” you have been instructed to bring the matter to the attention of the Government of the United States, requesting that measures be taken “for having the luggage of all Bohemian tourists who are booked as passengers of the Westphalia carefully examined by the New York police, and to have all suspicious matter in the way of explosives and revolutionary pamphlets seized,” and, further, that you be informed “if such suspicious matter should have been found.”
With every desire to do justice to the motive which prompts this request on the part of His Majesty’s Government, I must in all frankness premise that it appears to be based on a misapprehension of the functions and duties of the Executive under our federal system of government. The police of New York is a municipal organization, under the control of the State, and is not under the direction of the Federal Government. There is no mechanism provided, under either Federal or State laws by which the nationality of outgoing passengers may be competently ascertained and those of any particular origin separated from others. Even were this provided, there is no way open for the enforced examination of the effects of such passengers, except by due operation of law, as administered by the judicial authorities, upon complaint duly made. In the event of its appearing that the law is violated or about to be violated, the suggested search may be in order as a part of the judicial function; but there is no power lodged in the hands of the Executive to decree such a proceeding as a preventive measure.
The objects of the suggested search are stated by you to be the discovery of “explosives and revolutionary pamphlets,” and the seizure thereof. As touching the supposed “revolutionary pamphlets,” the Executive is without power to act. There is no statute known to it which interdicts or restrains the individual possession of such matter within the jurisdiction of the United States, nor, indeed, any law defining what printed matter may or may not be “revolutionary.” As the Executive cannot take cognizance of such revolutionary or seditious matter, even if directed against our own constitutional form of government, it stands to reason that it is no less incompetent to pass upon such subversive character when it may be alleged that it is in contravention of the municipal statute of another land. To intervene in that case would be, in effect, to attempt to administer, within the sovereignty of the United States, the domestic law of another sovereign.
The carriage and shipment of dangerous combustible and explosive materials upon passenger vessels engaged in international or inter-State traffic is, however, regulated by law, in the interest of the safety of human life, by the Federal statutes of the United States, leaving the regulation of such carriage and shipment within the limits of any State to the municipal jurisdiction thereof. I have the honor to inclose herewith for your information, copies of the pertinent sections of the Revised Statutes, Nos. 4278, 4279, 4472, 5353, and 5354. By section 5353 the conveyance or delivery of the explosive substances named upon a passenger vessel engaged in foreign or inter-State traffic is punished by a fine of not less than $1,000 or more than $ 10,000, one-half to the use of the informer. This fine is, of course, imposable in the regular course of judicial proceedings.
If, therefore, complaint be lodged before any magistrate of the United States, by any person cognizant of the facts, charging any person or [Page 55] persons with violation of this statute, the consequent proceedings will be instituted to the end of establishing the guilt or innocence of the party accused. Such complaint may be duly made by any officer of your Government, or by any person whomsoever having knowledge or belief on which to found such a charge; and the United States attorney at New York will cheerfully assist in the institution of such proceedings.
I am happy in being thus able to point out the line of demarkation between the Executive action, founded on suspicion, which your Government suggests, and which as I have shown is here impracticable, and the judicial examination of the fact of the criminal conveyance of a deadly explosive on board of a passenger vessel to the endangerment of human life.
Be pleased to accept, &c.,