Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I

No. 701.
Mr. Preston to Mr. Bayard.

[Translation.]

Legation of Hayti,
Washington, November 2, 1888. (Received Nov. 3.)

In reply to the note of the honorable Secretary of State, bearing date of October 29, relative to the state of war now existing on Haytian soil, the undersigned thanks the honorable Thomas F. Bayard for his decisive declarations, which indicate the course which the United States propose to pursue in order to cause the neutrality of their territory to be respected.

The undersigned regards this as a fresh evidence of the sentiments of which he is happy to say that he has repeatedly been assured, and of the happy effects of which he is well aware.

As regards the case of the seizure of the Haytian, Republic, the undersigned does not think that lie can add any new facts to those which have been communicated to him by telegraph, and which he has already brought to the notice of the honorable Secretary of State. Before being able discuss the matter with full knowledge of its details he must wait until the mails have brought him information concerning all those details. Nevertheless, he thinks it proper for him to present, without further delay, some observations concerning the principles which may eventually become applicable to the seizure of said steamer.

It is to be presumed that this seizure took place after a state of war had been duly proclaimed, in which case the matter is governed by Articles XXVI, XXVII, and XXVIII of the treaty of November 3, 1864, between Hayti and the United States.

Let us suppose, however, for a moment, that no state of war and no effective blockade yet existed; that, in a word, a state of peace then existed; the undersigned would then appeal to precedents and to the principles of international law which would govern under such a supposition; if a vessel carries an armed expedition, and attempts to effect a landing with such expedition, it is liable to seizure in the territorial waters. The measure adopted in such a case is one of police and security.

The undersigned herewith incloses an extract from Wheaton on this subject. He would also refer the Honorable Secretary of State to the case of Mali and Wildenhus v. The Keeper of the Hudson County Jail, (120 U. S.), in which it was decided that “any disorder on board of a foreign vessel which disturbs public peace maybe repressed, and, if necessary, the creators of the disturbance may be punished by the competent legal authorities.”

The undersigned does not think it necessary for him here to enumerate the other precedents which go to show the competence of Hayti in a case like this. (See Ortolan, Diplomatic de la Mer, vol. 1, pp. 270 et seq.)

It is impossible, however, for these preliminary observations to be based on any thing more than an imperfect knowledge of the facts.

The undersigned concludes by expressing the hope that the honorable Secretary of State will, before reaching a decision in relation to this question, give him time to receive full information from his Government.

As soon as he shall have done so he will hasten to examine this case with all possible care and to communicate the results reached to the Honorable Secretary of State, in whose judgment and impartiality he feels every confidence.

The undersigned has the honor to renew to the Secretary of State the assurances of his very high consideration.

Stephen Preston.

[Inclosure.]

from wheaton’s international law, dana’s edition, pages 166–168.

Whatever may be the nature and extent of the exemption of the public or private vessels of one state from the local jurisdiction in the ports of another, it is evident that this exemption, whether expressed or implied, can never be construed to justify acts of hostility committed by such vessels, her officers and crew, in violation of the law of nations, against the security of the state in whose ports she is received, or to exclude the local tribunals and authorities from resorting to such measures of self-defense as the security of the state may require.

This just and salutary principle was asserted by the French court of cassation in 1832 in the case of the private Sardinian steam-vessel the Carlo-Alberto, which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents, with the view of exciting civil war in that country, put in a French port in distress. The judgment of the court pronounced upon the conclusions of M. Dupin, ainé procureur-générale, reversed the decision of the inferior tribunal, releasing the prisoners taken on board the vessel, on the following grounds:

(1) That the principle of the law of nations according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally or neutral; as if, for example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the state, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pretext of distress.

(2) That supposing such allegation of distress be founded on fact, it could not serve as a plea to exclude the jurisdiction of the local tribunals taking cognizance of a charge of high treason against the persons found on board after the vessel was compelled to put into port by stress of weather.