Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890

Mr. Blaine to Mr. Mizner.

Department of State,
Washington, November 18, 1890.

[No. 206.]

Sir: The receipt of your dispatch No. 170 of the 23d of September has furnished the additional details which have been awaited in order to form a judgment in regard to the killing of General Barrundia on board the Pacific Mail steamer Acapulco in the port of San José on the 28th of August last.

The facts of the case may be summarized thus:

Gen. J. Martin Barrundia, who held the secretaryship of war in the cabinet of the late President Barrios, was an aspirant for the Presidency of Guatemala, and, being exiled by the authorities in actual possession of power, had sought for several years to advance his pretensions by a method for which, unfortunately, recent precedents are not wanting, that is, by revolutionary movements in the interest of himself and his personal following. Taking advantage of the state of hostilities between Guatemala and Salvador, he attempted to organize an invasion, operating from the Mexican border territory; but, failing, he and his followers were disarmed by the authorities of Mexico. Subsequently he found his way to the Mexican port of Acapulco, and there, on the 23d of August last, purchased a ticket for Panama and went on board of the Pacific Mail steamer Acapulco, sailing under the American flag. His baggage was searched, presumably by order of the captain of the steamer, and all arms found were taken away.

By the published schedules of the Pacific Mail Steamship Company, its vessels plying between San Francisco and Panama as terminal points are regularly appointed to call at certain ports on the Mexican and Central American coast, among which are Champerico and San José, in Guatemala. Of this fact General Barrundia, who is said to have been a frequent passenger on these steamers, was doubtless fully aware.

His intended departure from Acapulco having become known in Guatemala at least as early as August 15, the authorities conceived the design of securing possession of him while in transit. The commandant at Champerico accordingly addressed a communication—of which the date is not given—to the consular agent of the United States at that port, announcing that General Barrundia intended to embark by a steamer from the north “as a passenger for Salvador;” that, as he had borne arms against Guatemala, he was guilty of “high treason and other crimes, as the public well know;” and that the Guatemalan Government had ordered his arrest on the anchoring of the vessel bringing him. To this end the commandant asked the consular agent to direct the captain to lend his aid, so that General Barrundia might be delivered up “according to the law of nations, besides the extradition treaty for criminals ratified in 1870 between the Governments of Guatemala and the United States, which applies in the present case.”

In this relation, it may be observed that the extradition treaty between the United States and Guatemala which was signed in 1870 is not yet in force. But the fact that the demand was treated by Guatemala, in the first instance, as a proceeding in extradition is significant; and it is also to be noticed that the unratified treaty forbids the extradition of political offenders—a point of special significance in view of the original ground assumed by Guatemala.

The agent at Champerico telegraphed August 25 to Consul-General Hosmer for instructions. Mr. Hosmer, in your absence, on the same day authorized the agent to acquaint the commandant with his impression that the Guatemala Government had the right to search foreign vessels in her own waters for persons suspected of hostility in time of war and to arrest them. The telegram of Mr. Hosmer, which assumed to advise a Guatemalan official of his rights under international law, immediately found its way to the President of Guatemala; who the next day (August 26) summoned him to the Executive residence, and, after rehearsing the charges of Guatemala against General Barrundia, requested Mr. Hosmer to repeat his opinion by telegraph to the captain of the Acapulco. This Mr. Hosmer at once did, instructing Captain Pitts to “see that no obstacle is permitted to that right of search in accordance with the law of nations.” In his No. 243 Mr. Hosmer justifies his telegram by saying that he was not then aware that the bases of peace had been signed by Salvador.

The captain, on receiving this, telegraphed Mr. Hosmer the same afternoon (August 26), suggesting, as a guaranty for the ship and himself, to hold General Barrundia on board until reaching San José, where he would place himself under the orders of the United States minister, whose immediate return to his post was expected. This telegram was not answered by Mr. Hosmer.

The steamer Acapulco was detained at Champerico for 24 hours, from the 25th to the 27th of August, by order of the Guatemalan Government, during which time an attempt was made to arrest General Barrundia; but Captain Pitts refused to allow this to be done “without written orders from the United States minister stating that they had that right.” On learning of Captain Pitts’s refusal, the secretary for foreign relations, Señor Anguiano, on the evening of the 26th of August wrote a letter to Mr. Hosmer, which, because of its important bearing upon the case, I quote in full, as follows:

Office of Minister for Foreign Relations of Guatemala,
National Palace, Guatemala, August 26, 1890.

Honorable Sir: The captain of the steamer which anchored to-day in Champerico resists, as the commandant of the port informs me, to permit the arrest of Gen. J. M. Barrundia, who is aboard of that vessel. This Guatemalan general has not only in different ways attacked his country, Guatemala, but has armed himself against her, raising an armed faction on the Mexican frontier to invade her.

Barrundia landed a few days since in San Benito, a Mexican port, having arms with him, and when he put them in hands in Tapachula, and moving upon Guatemala, was arrested and deprived of his arms; finally, he dared to penetrate the territory of Guatemala, leading an armed faction.

The facts referred to, Honorable Sir, show the perfect right which exists in the Government of Guatemala, being in a state of war, to capture Barrundia on the steamer which is anchored in Champerico; for certainly the consul-general and secretary in charge of the business of the United States of America knows that every nation, being in war, can examine or inspect foreign vessels in its own waters and capture those simply suspected of being hostile.

Besides, by the contract which the Government made with the Pacific Mail Steamship Company that company should not permit the bringing or taking to Guatemala, nor to the adjacent countries, any element of hostility in time of war, such as exists at this time.

Accordingly, I address myself to the Honorable Consul-General and Chargé d’Affaires of the Unites States that he will, if he thinks proper, give his directions by telegraph to the effect that the captain of the vessel referred to may not offer any resistance to the capture or arrest of the said Gen. J. Martin Barrundia.

With assurance of my high consideration,

F. Anguiano.

Hon. James R. Hosmer,
Secretary in Charge and Consul-General of the United States, present.

Consul-General Hosmer’s connection with the affair here ceased. You returned to Guatemala City on the afternoon of the 26th, bringing the bases of peace which had been signed by President Ezeta, of Salvador, at Acajutla on the preceding day, August 25. Those bases were formally accepted by Guatemala on August 26, and proclaimed the same day, with orders for disarming and retiring the forces of Guatemala on the Salvadorian frontier. Your return, therefore, coincided with the official cessation of hostilities.

It would appear that on the night of August 26 you orally discussed the case of General Barrundia with President Barillas and Señor Anguiano, and some conditions in regard to the personal safety of General Barrundia were, at your request, promised by the President and minister for foreign relations. It seems, also, that you again conferred with Señor Anguiano on the morning of August 27. You have not seen fit to report the details of those conferences to the Department, but it may be assumed that their tenor is presented in certain notes exchanged between you and Señor Anguiano on the 27th of August.

At noon on the 27th you received a telegram from Captain Pitts, dated the same day at Champerico, stating that he was awaiting your instructions in reference to the demand to arrest General Barrundia, and that he would prefer to have the matter settled at San José, because he could there receive your written orders and have better protection, adding:

I fear the passenger wanted will resist himself from leaving the ship, and there are several others on board who would probably help him to resist, which might make trouble on my ship.

You answered Captain Pitts on August 27, stating your view that Guatemala had the right to arrest a person on a neutral ship in its own waters in time of war for any cause deemed an offense under international law, adding:

In this case, it must be understood that life is not to be endangered, or the person arrested punished for any other offense than that specified in the letter of the Guatemalan Government addressed to Consul-General Hosmer. If, in your judgment, the lives or property of innocent persons on board will be endangered by submitting to the arrest in Champerico, it would be better to bring the person to San José without altering his status, and where protection can be had.

This telegram did not reach Captain Pitts until his arrival, on the night of the 27th, at San José, whither the authorities at Champerico had permitted him to proceed.

Soon after receiving and answering Captain Pitts’s telegram you addressed a note on the subject to the secretary for foreign relations. You recited the purport of the statements made by Señor Anguiano to Mr. Hosmer in writing on the preceding day and to yourself orally on the morning of the 27th respecting General Barrundia’s alleged criminality and the request for orders to facilitate his arrest, adding

While the case is an unusual one, taken in connection with the peace which was practically concluded last night, and of which a general amnesty was a part, I am disposed to confirm Mr. Hosmer’s telegram as coinciding with the law of nations, but upon the conditions that General Barrundia’s life shall be preserved and that he shall be protected from any injury or molestation to his person, as well as that no proceedings be instituted or punishment inflicted other than for the causes stated in Your Excellency’s said letter to Mr. Hosmer; and, assuming this, which corresponds to our interview this morning, I have telegraphed to the captain of the steamer Acapulco accordingly.

The reply of Señor Anguiano is so necessary to an understanding of the situation and of your subsequent action that it is proper to repeat it in full:

National Palace, Guatemala, August 27, 1890.

Excellent Sir: I have this day received Your Excellency’s note, in which you inform me that the consul of the United States has explained to you that he had consented to the arrest of Mr. Martin Barrundia, who is aboard of the steamer Acapulco in the port of San José jurisdiction of this Republic.

In a verbal conference, Your Excellency also informed me that you were disposed to confirm the authorization, but that in presence of the late treaty with Salvador, in which a general amnesty is agreed upon, you consider the case an extraordinary one, and ask, before such confirming, a guaranty of the life of Barrundia.

My Government, in conformity with the principle of international law which recognizes the jurisdiction of the state over its territorial seas and subjects to it merchant vessels while in its waters, had no necessity, in effecting this search of the steamer Acapulco and arrest of Barrundia, to rely on the consent of friendly nations or of their dignified representatives, but in this case believes it proper as an act of courtesy to Your Excellency’s Government.

In support of the opinion which Your Excellency intimated, that merchant ships were subject to the territorial jurisdiction, I have not deemed it necessary to give a long enumeration of the authorities sustaining that doctrine, and especially treating of a state of war, which afflicts this Republic; the jurisdiction of the State is more than manifest.

It is true that a treaty of peace has been agreed to with Salvador, with the reservation of making a definite one within 3 months; there is therefore a truce or armistice until this final treaty can be made; consequently, precautions are authorized in defense of the State such as I refer to.

Barrundia is being prosecuted by the ordinary tribunals with decree of formal arrest for common crimes, and, besides, while a fugitive from the Republic, he has organized armed factions to disturb its internal tranquillity that require to be suppressed.

Not only are arms and ammunitions considered contraband of war, but also persons; and, viewed in this light, the capture of Barrundia is justified, he having threatened the public peace which Your Excellency has made so great efforts to restore, and which would otherwise prove useless.

On the other hand, the President of the Republic, desiring to give another proof of its friendly and sympathetic attitude toward Your Excellency’s Government, takes particular pleasure in complying with the request of a guaranty for the life of Don Martin Barrundia; and thus I hereby confirm that guaranty, with the assurance that, in case the courts to which his case shall be submitted should impose the death penalty, he shall be relieved therefrom, extending to him the boon of life.

Renewing, etc.,

F. Anguiano.

His Excellency Señor Don Lansing B. Mizner, etc.

It is to be noted that this correspondence, so essential to an understanding of the case, was not reported to the Department until appended to your last dispatch, written September 23, 4 weeks after it was exchanged with Señor Anguiano.

Soon after writing your note to Señor Anguiano you sent, on the 27th, a telegram to Lieutenant-Commander Reiter, commanding the United States steamer Ranger, then in the port of San José, as follows:

General Barrundia is on the Acapulco. Guatemala alleges that he is hostile, and, being in their waters, they can arrest him. I think that they have the right.

This telegram, of which the text is taken from Lieutenant-Commander Reiter’s report of August 28 to the Navy Department, is not found among the annexes to your reports. The occasion of sending it does not appear, whether at the instance of the Guatemalan authorities or as a voluntary act on your part. It was received on board the Ranger August 27 at 6:30 p.m. Lieutenant-Commander Reiter went immediately ashore and at 7 p.m. sent to you the following telegram:

Barrundia expected in steamer. As peace is declared, I suggest that you ask Government to permit Thetis to take him to” Acapulco, we acknowledging their municipal rights over steamer. Steamer Acapulco in sight.

Soon after this the Acapulco entered the limits of the port, anchoring, as usual, at some distance from the shore. Captain Pitts thereupon went ashore and sent to you a telegram in these words:

Shall I deliver General Barrundia to the authorities here? If so, please send me a letter with your signature to that effect.

Lieutenant-Commander Reiter’s telegram, dispatched at 7 p.m., is marked as reaching the telegraph office in Guatemala City at 8 o’clock. Captain Pitts’s telegram, sent an hour or two later, is marked as received in the office at 9:46. Both telegrams were delivered to you at 10 p.m. No explanation of the evident delay in communicating the commander’s dispatch is vouchsafed.

When these two telegrams reached you, the secretary for foreign relations was present in your parlor. You referred to him Lieutenant-Commander Reiter’s suggestion, “but it was positively declined in view of all the circumstances, to wit, that Guatemala had, on the 21st day of July, decreed martial law throughout the Republic, which decree is still in force, and did, on the 23d of July, formally declare war against the Republic of Salvador, which declaration is yet in full force.”

Having information, derived, as you say, from a daughter of General Barrundia, that he intended to land at La Libertad, a port of Salvador, notwithstanding that he had a ticket for Panama, and mindful of the antecedents of the general and his attempted invasion of Guatemala from Mexico, you decided to advise the captain of the steamer to submit to the arrest of his passenger; and to that end you wrote, on the same evening, the following letter to Captain Pitts:

United States Legation in Central America,
Guatemala, August 27, 1890—10:30 p.m.

Sir: If your ship is within 1 league of the territory of Guatemala and you have on board Gen, J. M. Barrundia, it becomes your duty, under the law of nations, to deliver him to the authorities of Guatemala upon their demand, allegations having been made to this legation that said Barrundia is hostile to and an enemy to this Republic. Guaranties have been made to me by this Government that his life shall not be in danger, or any other punishment inflicted upon him other than for causes stated in the letter of Señor Anguiano to Consul-General Hosmer, dated yesterday.

I have, etc.,

Lansing B. Mizner,
United States Minister.

Captain W. G. Pitts,
Commanding Pacific Mail Steamship Company’s steamship Acapulco.

As this letter was not forwarded to Captain Pitts by post, but was handed to him the next day by the commandant at San José, it is presumed, although you do not state the circumstance, that you delivered it to Señor Anguiano as a compliance with his demands; and the further inference, so strongly arising as to be fully justified, is that Señor Anguiano was acquainted with its contents and accepted them as conforming to his views.

You also telegraphed to Lieutenant-Commander Reiter as follows, the text, as before, being taken from his report to the Secretary of the Navy, you having omitted to furnish the Department with a copy:

This Government declines offer to take Barrundia away in Thetis. Have advised Captain Pitts to deliver him.

This telegram reached Commander Reiter at 9:30 a.m. the next day, August 28. The Acapulco still lay at anchor in the port of San José, where, it is said, she was commanded by a large Krupp cannon which had been sent from Guatemala City at the time of the Colima arms seizure and mounted to range the anchorage. You state that you were aware of this, and apprehensive that the Government of Guatemala “might resort to force in arresting a passenger on one of our vessels, and thereby endanger the lives of innocent passengers;” but you were not informed of what has since been avowed “distinctly and with emphasis” by Señor Anguiano in an interview you had with him on September 18, and confirmed by a communication said to have been addressed to the United States consular agent at San José on the 15th of August last, that the Government “had given Colonel Toriello positive orders to arrest and take Barrundia from the steamer Acapulco, port of San José, using all power necessary for that purpose, even to sinking the ship, notwithstanding it might have involved a conflict with our two war vessels then and there present.”

On the afternoon of August 28, at about 2 o’clock, the commandant went out to the Acapulco with a guard of several (Lieutenant-Commandant Reiter says 3 or 4) policemen and delivered to Captain Pitts the letter you had written the night before. No warrant of arrest or legal power to take the accused into custody appears to have been exhibited. The contents of the letter having been made known, Captain Pitts took the precaution “to notify the cabin passengers to go below into the dining saloon and steerage passengers to keep forward.” The reason of this precaution may be inferred from Captain Pitts’s apprehensions, previously expressed while at Champerico in his telegram to you, that General Barrundia would resist arrest and perhaps be aided in his resistance by some of the passengers.

Captain Pitts then went with the commandant to the stateroom on the hurricane deck occupied by General Barrundia. He opened the door, and the captain informed him of the purport of your letter. General Barrundia then reached into his room, drew two revolvers from the bed, and fired one shot between the captain and the commandant. They fled aft, the general pursuing them and firing again as they took refuge in another stateroom. The principal witness having thus withdrawn from the scene, no intelligent account of what followed can be gathered. Captain Pitts, in his affidavit made before Mr. Hosmer September 16, says:

Then the detectives shot at him, and the tiring became general between the detectives on one side and General Barrundia on the other. Probably fifty shots were fired in all before General Barrundia was killed, the body was taken on shore by the authorities.

On the 30th of August a telegraphic report of the occurrence was received from you in cipher to the effect that “General Barrundia, having resisted arrest on board the Acapulco, was, after having fired the first shot, killed by Guatemalan officers.” You added that you “had advised the officers and Captain Pitts that you had guaranties for General Barrundia’s personal safety, and that you joined the consul-general in advising the captain to permit the arrest on the charge of being an enemy, martial law being in force.” Your telegram was delayed two days in transmission.

Mr. Wharton, then Acting Secretary of State, telegraphed to you on September 2 in cipher to the effect that—

As General Barrundia entered the jurisdiction of Guatemala at his own risk, the assumption of jurisdiction by the Guatemalan authorities was at their risk and responsibility, and that it was regretted that you have advised or consented to the surrender, as no specific charge of violation of the ordinary law of Guatemala appeared and the treatment of General Barrundia as an enemy under martial law was alone alleged.

The more the question is examined in the light of important facts tardily disclosed the deeper becomes the regret that you so far exceeded your legitimate authority as to sign the paper which, in the hands of the officers of Guatemala, became their warrant for the capture of General Barrundia.

The demand of the Government of Guatemala that the representatives of the United States in that country should become parties to the accomplishment of General Barrundia’s capture by directing the captain to surrender him is based on complex and unusual grounds, which must be examined somewhat in detail. But it rests chiefly on the allegation that General Barrundia, by reason of his revolutionary antecedents, his recent attempt to invade Guatemala from Mexico, and his supposed purpose to land in Salvador, was contraband of war. And it is also asserted that he could not, under the stipulations of the contract between the Pacific Mail Steamship Company and the Government of Guatemala, be carried on any of its steamers to Salvador.

It can not be pretended that the frustrated attempts of General Barrundia to subvert the ruling power in Guatemala had created a state of public war and invested the Government of that country with belligerent rights. It is true that he was said to be “hostile” and an “enemy,” but those terms were obviously not employed in the sense in which they are understood in public law when we are considering such questions as “contraband” and the “right of search.” On the contrary, they were clearly intended to describe him as a person entertaining rebellious designs against the existing government, such as savored of the political offense of treason. The only war that had existed was that with Salvador, and that subject, so far as it relates to the present case, I shall now consider.

Many writers on international law assimilate the carrying of military persons in the service of a belligerent to the carrying of contraband goods. But, in order that the question of “contraband of war” may arise, both as to the vessel and the person carried, three things are essential. In the first place, there must be an actual state of war. This is self-evident; for, if the mere apprehension of war were sufficient, nations whose relations were such as to excite anxiety might continuously exercise the right of search. In the second place, in order that the vessel may be condemned for carrying contraband, it must be shown that she knowingly carried it in such a way as to make it clear that it was her intention to take part in the war. In the third place, in order that the person may be treated as contraband, it must appear that he is in the service of the enemy. This requirement is found in many of our treaties and was embodied in article 14 of the extinct treaty of 1849 between the United States and Guatemala, by which it was strictly provided that persons on board of the ships of the contracting parties in time of war should not be taken out unless they were “officers or soldiers and in the actual service of the enemies.”

While the revolutionary attempts of General Barrundia, initiated, as is staged, months before the change of government in Salvador that precipitated the recent hostilities, may have found renewed opportunity in the disturbance incidental to a state of war, it is not charged that he was an officer or soldier in the military service of Salvador, or that he was in anywise associated with her cause. Señor Anguiano’s letter of August 26 to Consul-General Hosmer charges that Barrundia was a Guatemalan general who had raised the standard of factional revolt against the existing administration of that country. His undated proclamation, of which copies, said to have been found among General Barrundia’s personal effects, have been communicated to you by Señor Anguiano, in corroboration of the accusations against him, is an incitement to native Guatemalans to revolt against the existing Government and to set up another in its place. In Señor Anguiano’s letter to you of the 27th of August, as in that of the preceding day to Mr. Hosmer, no attempt is made to associate him with the belligerent acts of Salvador. If, therefore, a state of war had then existed, the grounds alleged as the basis of the demand for General Barrundia’s surrender as contraband would not have been acceptable.

But, in reality, hostilities had ceased, and, in view of this fact, the impropriety of the demand for the surrender of General Barrundia as contraband of war is not mitigated by Señor Anguiano’s appeal to martial law. In his interview with you on the evening of the 27th of August he declared that martial law was decreed in Guatemala on the 21st of July (two days before the declaration of war with Salvador) and still existed. At the same time he is reported to have said that the declaration of war against Salvador, made on the 23d of July, was also still in force. But by this he can scarcely be supposed to have meant more than that the declaration had not been formally withdrawn. For, as has been seen, the bases of peace were signed by President Ezeta, of Salvador, on the 25th of August, and were form ally accepted and proclaimed by Guatemala on the following day, with orders for the disarming and retiring of the forces of Guatemala on the Salvadorian frontier. The war had thus come to an end both nominally and in fact, and martial law could no longer be said to exist as that term is generally employed in public law. “Martial law,” says Halleck, “exists only in time of war, and originates in military necessity.” Speaking on the same subject, the Supreme Court of the United States said:

Martial law can not arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. (Ex parte Milligan, 4 Wallace, 127.)

Martial law, therefore, in this sense, did not exist in Guatemala on the 27th of August last; and Señor Anguiano’s appeal to the decree of “martial law” of July 21, in order to show that there was still a state of public war, was wholly unwarranted and at variance with facts well known to yourself. His appeal to “martial law” may doubtless be explained by the fact that, by the thirty ninth article, title 2, of the constitution of Guatemala of 1879, the President and his council may, if the national territory is invaded or attacked, “or if the public tranquillity is in anywise menaced,” by a decree suspend all the guaranties of personal liberty set out in that article. The exercise of this power might, it is conceived, produce disorders not unlike those that may result from war; but it can not create a condition of affairs which other nations may be asked to treat as a state of war, with all the legal consequences to their citizens, or to their vessels, with their passengers and cargo.

The right of visitation and search and of seizure and confiscation of contraband is a belligerent right and an act of war. It is compatible only with a state of hostilities; so that it is laid down by the publicists as an elementary rule that, if the forces of a belligerent, during a general truce, capture prizes without notice of the suspension of hostilities, such prizes must be restored.

In order to fortify the demand for the surrender of General Barrundia as contraband of war, Señor Anguiano appealed to the contract between the Guatemalan Government and the steamship company, which contains this clause:

XVII.—This company binds itself not to permit troops or munitions of war to be carried on board of its steamers from any of the ports of call to the ports of or adjacent to Guatemala if there be reason to believe that these materials may be used against Guatemala or that war or pillage is intended.

Obviously, this is the stipulation that was referred to by Señor Anguiano when, in his note to Mr. Hosmer of August 26, he said the steamship company “should not permit the bringing or taking to Guatemala, nor to the adjacent countries, any element of hostility in time of war, such as exists at this time.” It is also doubtless the stipulation to which you advert when, in your No. 150 of the 29th of August, you say, in justification of your course, that the Government of Guatemala claimed the right to arrest Barrundia “under its contract” with that company.

This is not the first appeal that has been made by the Government of Guatemala to the provisions of the contract with the company. They were invoked in the recent seizure of arms on board of the Colima, and it is not improbable that the position you then assumed encouraged the Government to invoke them again. On that occasion the arms were shipped from San Francisco, in the United States, on board of the Pacific Mail steamer Colima for Salvador. At the port of San José, in Guatemala, the port at which General Barrundia was afterwards killed, the Government of Guatemala sought to seize them, in view of contemplated hostilities with Salvador. You then intervened to bring about a supplementary contract whereby the company engaged to re-convey the arms to a “neutral port.” Nevertheless, while the arms were being unshipped and transported for that purpose, the Government of Guatemala seized them and temporarily converted them to its own use, and you were then constrained to base your protest on the violation of the special agreement entered into by you rather than upon the arbitrary infraction of international law that had been perpetrated.

The President deeply regrets that you should, either on that occasion or on the attempted seizure of General Barrundia, have found any warrant or excuse for the action of Guatemala in the terms of her contract with the Pacific Mail Company. The effect of such a contract upon the rights and responsibilities of the carrier it is not necessary now to consider; but the President holds it to be clear that the contract could not affect the rights of any person or thing carried, as those rights are secured under the general principles of international law. Much less could it limit and control the right and duty of this Government in respect to persons and property on vessels flying its flag. To admit that a government may, by the contracts which it is able to obtain, fix the measure of its power over foreign vessels and whatever may be on board, and at the same time limit the rights and duties of the government whose flag such vessels carry, would destroy the foundation of maritime law and render intercourse between nations altogether uncertain and hazardous.

The article in question does not, however, in terms assume to confer any such power or make any such waver in favor of Guatemala. It stipulates merely that the company will not convey certain persons and things in certain cases; not that Guatemala shall or may take them from its ships, or exercise in respect of them any arbitrary control whatever.

It is proper to insist upon this point, since you appear to have attached great importance to this provision of the contract and to have assumed that it was the duty of this Government, through you as its representative, to intervene in regard to the fulfillment of its terms, not only in respect to the vessel, but also in respect to what it carried.

I have not failed to notice that Señor Anguiano, in his note to you of the 27th of August, said that General Barrundia was “being prosecuted by the ordinary tribunals with decree of formal arrest for common crimes,” but immediately added that “besides, while a fugitive from the Republic,” he had “organized armed factions to disturb its internal tranquillity” that required “to be suppressed.” With this statement, Señor Anguiano returned to the argument that General Barrundia should be given up as contraband of war, and did not demand his surrender as a common criminal. It is possible that if Señor Anguiano had seen fit to specify and describe the “common crimes” for which General Barrundia was being prosecuted there might have been some room for difference of opinion as to their character. But they were neither specified nor described, and it is remarkble that no reference to them is found other than that passing allusion which has been pointed out. The commandant at Champerico wrote to the consular agent that, as General Barrundia had borne arms against Guatemala, he was guilty of “high treason and other crimes, as the public well know.” The letter of Señor Anguiano to Mr. Hosmer placed the demand for his surrender on the ground that he was “hostile.” The letter of Señor Anguiano to yourself treated him as contraband of war and placed the right to capture him on that ground. And your subsequent letter to Captain Pitts, upon which the capture was attempted, informed him that it was his duty to deliver General Barrundia “to the authorities of Guatemala upon their demand, allegations having been made to this legation that said Barrundia is hostile to and an enemy to this Republic.” This, therefore, is the ground on which the surrender was demanded and by you authorized to be made, and the reference to “common crimes” may be dismissed from further consideration.

Having fully reviewed the facts in the case, and, as it is conceived, demonstrated the impropriety and illegality of Guatemala’s specific demands upon the representatives of the United States, I pass to the consideration of the right of the Government of Guatemala to take General Barrundia out of the ship, and to the consideration of your authority, as the responsible representative of your Government, to sanction such a step.

It is laid down by the publicists as a general rule that the private vessels of a nation, as contradistinguished from its men-of-war, are, on entering the ports of another nation, not exempt from the local jurisdiction. At the same time it is stated that this rule is not absolute and unlimited, but that it is subject to important qualifications, both general and special. The vessels of a nation on the high seas are commonly spoken of as a part of its territory, and this character is not destroyed by their entrance into the port of another nation, although by such entrance they may, to a great extent, also become subject to another jurisdiction. This principle was so clearly and cogently expressed by Mr. Webster in the case of the Creole that I will quote from his discussion of that case the following passages:

A ship, say the publicists, though at anchor in a foreign harbor, preserves its jurisdiction and its laws. It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the state retains its jurisdiction over them; and, according to the commonly received custom, this jurisdiction is preserved over the vessels even in parts of the sea subject to a foreign domination. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and entirely conformable, as it is supposed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a passenger, or by a passenger on one of the crew or another passenger, while such vessel is lying in a port within the jurisdiction of a foreign state or sovereignty, the offense is cognizable and punishable by the proper court of the United States in the same manner as if such offense had been committed on board the vessel on the high seas. * * * It is true that the jurisdiction of a nation over a vessel belonging to it while lying in the port of another is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there by her master or owners, she and they must doubtless be answerable to the laws of the place. Nor, if her master or crew, while on board in such port break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships, not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne, for the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this jurisdiction, they are considered as parts of the territory of the nation herself. (Webster’s Works, vol. 6, pp. 306, 307.)

These principles were recently applied by the Supreme Court of the United States in the case of Wildenhus. In that case a murder was committed on board of a Belgian vessel in the port of Jersey City, in the State of New Jersey. The Belgian Government claimed exclusive jurisdiction of the offense under its treaty with the United States. The Supreme Court did not admit this claim, but, holding that the treaty was merely declaratory of the law of nations, said:

The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship; but those which disturb the public peace may be suppressed, and, if need be, the offenders punished, by the proper authorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way the consul has no right to interfere to prevent it. (Wildenhus’s case, 120 U. S., 1, 18.)

Many instances might be given of the abstention of the local authorities from assuming jurisdiction over matters affecting foreign vessels, but I will cite in this relation only the offense of desertion. The arrest and return of deserters has always been treated by this Government as analogous to extradition, and our authorities take no cognizance of it except under treaty.

Such, then, is the general rule and such are its general limitations. In this relation it may be observed that Calvo states the rule as follows:

To sum up, as regards merchant vessels, for all crimes or offenses committed by seamen, either on board or ashore, against foreigners, or in such a way as to disturb public order or to affect the interests of the country in whose waters the vessel is at anchor, as well as for matters in which the parties interested ask of their own accord the aid and support of the local authorities, the police of the country have an absolute right to pursue the guilty party even on board of the vessel to which he belongs, if he has succeeded in taking refuge there, provided in this latter case they come to an understanding with the consul of the nation interested. (Calvo, Le Droit international, 4th ed., section 471.)

In ordinary cases of arrest of criminals under legal process such concurrent action or permission has been the general practice among the Spanish American countries, and there are many recent instances in which it has been observed. I am unaware of any reported case where the arrest was made or the demand enforced in the event of a refusal on the part of a representative of the nation to which the vessel belonged to act concurrently or to grant the permission sought.

But the rule is also subject to special exceptions, resting upon consent and secured either by express compacts or by custom. This principle is so clearly enunciated by Chief-Justice Marshall that I will quote that great jurist’s statement of it, which is as follows:

This consent may be either expressed or implied. In the latter case it is less determinate, exposed more to the uncertainties of construction, but, if understood, not less obligatory. The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage. (Case of the schooner Exchange, 7 Cranch, 116.)

As an illustration of the exceptions that prevail in some places, I may cite the recent case of the British steamer Charles Morand, on which the first officer was, in July, 1889, killed by a sailor, one Peter Lynch, while the steamer was lying in the port of Manzanillo, in the island of Cuba. Notwithstanding the gravity of the offense, the local authorities declined to take jurisdiction of it, and the offender was brought to the city of New York, where he was arrested with a view to extradition. The case was duly examined by judicial authority and the prisoner committed to wait the action of the Executive, upon whose warrant he was subsequently delivered up to be tried in England for the murder charged to have been committed on the British steamer in the port of Manzanillo.

The general principles and the exceptions governing the subject under consideration have so far been discussed in relation to common crimes, but the circumstances of the case of General Barrundia require a special examination of those principles and exceptions with regard to political offenses. Not only in respect to extradition, but also in respect to all matters in which the cooperation of foreign governments is required, the law of nations contains a clear distinction between ordinary criminals and political offenders.

By many writers it is asserted to be the duty of nations to assist in the recovery of fugitives from justice, but even those that maintain the most extreme doctrine on that subject hold that it is a part of every nation’s independence and sovereignty to grant asylum to those who are sought to be prosecuted for their political acts. Referring to this subject, in relation to our treaties of extradition with Great Britain, a distinguished predecessor in this office said:

Neither the extradition clause in the treaty of 1794 nor in that of 1842 contains any reference to immunity for political offenses or to the protection of asylum for political or religious refugees. The public sentiment of both countries made it unnecessary. Between the United States and Great Britain it was not supposed on either side that guaranties were required of each other against a thing inherently impossible any more than by the laws of Solon was a punishment deemed necessary against parricide, which was beyond the possibility of contemplation. (Mr. Fish to Mr. Hoffman, May 22, 1876.)

“To surrender political offenders,” said Mr. Marcy, “is not a duty, but, on the contrary, compliance with such a demand would be considered a dishonorable subserviency to a foreign power and an act meriting the reprobation of mankind.” It is believed that these declarations express the sentiment of the civilized world, and it is certain that any departure from them would be execrated by the people of the United States.

For reasons, therefore, of national independence and of humanity political offenses have been treated by publicists as constituting a separate class and as demanding a different consideration and treatment from ordinary crimes; and, because of their special character, they have also been the subject, in many instances and in many places, of a very considerable abatement of jurisdictional claims. In proof of this fact it is pertinent to consult the “common usage “and the “common opinion growing out of that usage,” to which Chief Justice Marshall referred as evidence of that national consent which may make the law for a particular place or for particular countries, and which, as he declared in another part of his opinion, can not be “suddenly and without previous notice” withdrawn by a nation without a violation of its faith.

The records of this Department afford several comparatively recent instances of the arrest of alleged offenders on American vessels in Spanish American ports. In these cases the consular or diplomatic officer has invariably been applied to for his consent, and proof has been furnished in authentic legal form of the crime alleged. Where there has been ground for the suspicion that the application bore a political complexion, ample proof has been adduced that the offenses charged were ordinary in their character. This fact has been made the basis of the request for the consent of the foreign representative to the arrest, and the Department is not informed of any case in which the arrest has been made when the representative of the United States withheld his consent or the demand wore a political aspect.

An illustration of the course pursued in respect to an ordinary crime is found in the case of Leopoldo Olivella, who, being accused of murder at Matanzas, in the island of Cuba, in 1880, fled to the United States. Some months later he took passage at New York under an assumed name on the American steamship City of Alexandria for Vera Cruz, in Mexico, Havana being a regular port of call. The Cuban authorities, learning of his departure from New York, applied to the consul-general at Havana for a letter to the captain of the steamer directing him to surrender Olivella to the chief of police. The consul-general telegraphed to the Department, which, in replying, did not authorize the surrender, but confined Itself to instructing him to secure to the accused all the treaty rights to which he might be found to be entitled. While the steamer lay in port the consul-general went on board, followed by the chiefs of police of Havana and Matanzas, who were provided with a regular warrant of arrest and accompanied by witnesses to the fugitive’s identity. After interrogation and complete identification, Olivella consented to go ashore, stipulating, however, that legal steps should be taken by the superior authorities of the island “to demand his extradition from the Government of the United States to the end that the said Government may give its decision on this point.” A certificate of the proceeding, embracing this stipulation, was accordingly drawn up and signed by the accused and by the several officers present, and the Spanish minister subsequently presented it to the Department of State, with the evidence in the ease, including the indictment and warrant of arrest, in order that this Government might be “fully satisfied with the formalities which have been observed in the matter of the arrest of Olivella.”

The course pursued in a case having a political aspect and the recognition of that aspect as of substantial importance maybe illustrated by the ease of Emilio Nuñez during the late insurrection in the island of Cuba. Nuñez, who is said to have taken part in an insurgent raid near Sagua, escaped to the United States, where he declared his intention to become a citizen. In 1884 he returned to Sagua as one of the crew of an American vessel, remaining on board while in the port. The acting consul of the United States at Sagua was applied to by the chief of police for authority to take Nuñez from the vessel. The acting consul asked instructions of the consul-general at Havana, and General Badeau replied authorizing the surrender if the charge was criminal, not political. When information was sought on this point, evidence was produced to the acting consul that Nuñez was charged before the regular courts with various crimes, “among others, assassination and robbery, as a bandit, of Don Amando Denis, at San Diego del Valle, and is therefore a criminal, and not a political, offender.” Thereupon the acting consul gave his written consent to the surrender. It was afterwards disclosed that Nuñez had been amnestied by the governor of the province and permitted to leave the island after the process on account of murder and robbery had been instituted, and he was subsequently released without formal trial. In this instance it is clear that the instructions of the consul-general assumed to impose upon the acting consul at Sagua the function of ascertaining the charge and basing his consent on proof of its non-political character, and this condition was acquiesced in by the Cuban authorities.

The theory and practice disclosed in Cuba are believed to have been observed without exception in Central America, certainly as to American vessels, until the case of General Barrundia. This fact may pertinently be illustrated by a case that occurred in Guatemala in September, 1884, when an oral request was made by Señor Cruz, then minister for foreign affairs, of Mr. H. Remsen Whitehouse, the consul-general of the United States, looking to his concurrence in the proposed detention of two men, Modesto Huerte and Francisco Ruiz Sandoval, who were alleged to have taken an active part in a then recent insurrection on the Mexican frontier, and who were passengers in transit on the Pacific Mail steamer Clyde, then lying in the port of San José Mr. Whitehouse, with commendable discretion, answered Señor Cruz in writing that he did not consider himself authorized to act in the matter; and the arrest was not effected.

A still later case is that of Gomez, in Nicaragua, to which you advert as more than justifying your course in respect to General Barrundia. I have carefully examined that case, and am compelled to entertain a very different impression. Gomez, who is said to have been a political fugitive from Nicaragua, took passage in a Guatemalan port for a port in Costa Rica on the Pacific Mail steamship Honduras, with knowledge that the vessel would, in transit, enter the port of San Juan del Sur, in Nicaragua. Mr. Hall, then our minister to Central America, before learning of an application made by the Nicaraguan minister for foreign affairs to the United States consul at San Juan del Sur, but upon report that such action would be taken, telegraphed to the consul as follows:

Say respectfully to the minister for foreign affairs that our Government never has consented, and never will consent, to the arrest and removal from an American vessel in a foreign port of a passenger in transit, much less if offense is political.

The consul so answered the minister for foreign affairs of Nicaragua. On the arrival of the Honduras at San Juan del Sur the authorities requested the captain to deliver Gomez. This he declined to do, and set sail without clearance papers. For this offense against the revenue laws of Nicaragua an action was instituted in the courts and the captain adjudged guilty by default, and here the matter appears to have been terminated. No arrest or attempt to arrest was made, and the steamer continued on her voyage without molestation. In reporting the case to the Department, Mr. Hall, the minister of the United States, in support of his conduct on that occasion, cited “many cases” of similar character that had occurred at Havana during the Cuban insurrection, when he was serving the Government of the United States at that place in a consular capacity; “and in every case,” he says, “with one exception, where the Department was consulted as to the surrender of the party, a negative answer was returned. The exception was that of one Olivares [Olivella], who was charged with the crime of assassination.” Mr. Hall also referred to the then recent case in Guatemala in which Mr. Whitehouse was concerned, and to which I have already adverted.

Mr. Bayard, then Secretary of State, in his instruction to Mr. Hall, No. 226 of March 12, 1885, after reviewing the facts so far as known and adverting to the incompleteness of the information as to the proceeding against the captain, said:

Under the circumstances, it was plainly the duty of the captain of the Honduras to deliver him (Gomez) up to the local authorities upon their request.

By this, I take it, Mr. Bayard expressed his opinion that the captain, being within the local jurisdiction of a foreign state, might not resist the orderly application of its law to a passenger on board his ship. There is no suggestion that it was the duty of the United States minister to intervene by concurrence or express consent to effect the arrest, either with or without conditions as to the nature of the proceedings against the accused or the penalty to be inflicted. I have yet to find in the records of this Department the faintest trace of any instruction to that end or the slightest warrant for the assumption by any diplomatic or consular representative of authority so to act. It should also be noticed that Mr. Bayard discussed the situation simply from the point of view of the absolute jurisdiction of the country in which the port lies, for, immediately after the sentence above quoted, he says:

It may be safely affirmed that when a merchant vessel of one country visits the ports of another for the purposes of trade it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty.

Any exemption or immunity from local jurisdiction must be derived from the consent of that country. No such exemption is made in the treaty of commerce and navigation concluded between this country and Nicaragua on the 21st day of June, 1867.

There is no reference here to the special conditions that may sometimes and in some places exist, nor to that “common usage” and “common opinion” spoken of by Chief Justice Marshall, which are such familiar evidences of the law and determine its existence, not only among nations, but also in individual states.

But between the general doctrine as broadly laid down by my predecessor in office and your action in respect to General Barrundia’s seizure there is an impassable space. I am aware that it may be said that after all you merely advised the captain of his duty. But the captain did not simply seek advice. In his telegram from Champerico he says that on his arrival at San José he will place himself “under the orders of the American minister.” He again telegraphed to you later from Champerico that he was “awaiting your instructions,” and that at San José he expected “your written orders.” In his last telegram to you, dispatched from San José on arriving at that port on the evening of August 27, he categorically inquires:

Shall I deliver General Barrundia to the authorities here? If so, please send me a letter with your signature to that effect.

There is not here the slightest suggestion that Captain Pitts proposed to act otherwise than by your orders and under your responsibility. It was under these circumstances that you wrote the letter which became, in the hands of a Guatemalan official, the pretext of the attempted seizure of General Barrundia.

I have adduced ample evidence to show that in respect to political offenders a very considerable and important exception has in practice been made in Spanish American countries to the general rule as to the exercise of jurisdiction over foreign vessels. The same exception is also found to exist there in the case of asylum in foreign legations. It is a general principle that an ambassador or other public minister is not permitted to grant an asylum to offenders in the country in which his legation is established. But an exception to the rule has been made in respect to political offenders, and nowhere has it more generally prevailed than in Spain and in the countries of Spanish America. It is proper to say that the Government of the United States has never encouraged an extension of this exception, for the reason that it is likely to lead to abuse. But at the same time it has on grounds of humanity frequently found itself obliged to maintain it. That it has done so with regret is due not more to its indisposition to exercise exceptional privileges than to the deplorable fact of the recurrent disorders which have so often caused those in power suddenly to seek a place of refuge from the hot and vindictive pursuit of others who have been able violently to drive them from their positions. It is to this unfortunate and unsettled political condition that the extension of asylum to political offenders is attributable, and it is believed that the consideration of self-interest arising from a sense of insecurity has not infrequently permitted the exercise of the privilege to pass without strenuous objection. Under these circumstances especially, no nation could acquiesce in the sudden disregard, or heed a demand for the peremptory abandonment, of a privilege sanctioned by so general a usage.

The causes that have operated to foster the maintenance of an asylum for political offenders in legations have contributed, perhaps even more powerfully, to secure a place of refuge for them on foreign vessels. In the first place, their presence on the latter, whether they are simply fleeing from pursuit or are in transit from one foreign country to another, being connected with the purpose of immediate departure, does not so directly tend to fan and perpetuate the popular frenzy as the spectacle of immunity without flight. In the second place, the principal means of communication between the countries of Spanish America is by water, and it has been a matter of common interest to permit such communication to be undisturbed by political events. These considerations peculiarly apply to the vessels of the Pacific Mail Steamship Company, which for many years have been the principal vehicles of transportation, especially for passengers, between several of those countries. Plying between San Francisco and Panama as terminal points, they call at various Central American ports, halting as long as may be necessary to unship and ship cargo, and lying at anchor for that purpose some distance from the shore. While it is true that, being in the ports of the country, the mere circumstance that they are not fastened to a wharf or brought close inshore does not exempt them from the local jurisdiction, yet it is proper to be taken into account as an explanation of the fact that considerations of convenience and interest have been more important and actual than the question of public order and tranquillity.

It is not doubted that in the many years during which the vessels of the Pacific Mail Steamship Company have plied between San Francisco and Panama they have carried scores and hundreds of persons who have been concerned in political broils and insurrectionary movements in the countries at whose ports they call. Yet the Department is not informed of a single instance in which the peace of the vessel has been disturbed by the seizure of a person on board for any political cause. So far as the Department is able to ascertain, it is the common opinion that such a right of seizure is not asserted or supposed to exist. This is the “common opinion” of which Chief Justice Marshall spoke as evidence of that “common usage” which determines the law. No better evidence of that opinion could be adduced than the instances which have been disclosed, and with them we may include that of General Barrundia himself, of political fugitives who have gone on board of those vessels knowing that they would call at ports in which their lives would be sacrificed if they went on shore.

I have said that no better evidence than this fact could be adduced. There is, however, one other circumstance that may be regarded as still more significant, and that is the conduct of the Guatemalan authorities on this particular occasion. To place this in its true light it is only necessary briefly to summarize the various steps taken by them up to the time of the attempted seizure, as follows:

(1) The communication of the commandant at Champerico to the consular agent of the United States at that place, informing him that the Government of Guatemala intended to seize General Barrundia and requesting him to lend his aid so that the general might be delivered up.

(2) The reference in this same communication to the extradition treaty, which was said to apply to the case.

(3) The telegram of Mr. Hosmer to the consular agent at Champerico on the 25th of August, placing the right of seizure on the ground that the Government of Guatemala could search foreign vessels in her own waters for persons suspected of hostility “in time of war.”

(4) The repetition of this telegram to the captain of the Acapulco at the request of the President of Guatemala.

(5) The refusal of the captain of the Acapulco, accustomed to ply in those waters, to surrender his passenger, and his notification that he placed himself under the orders of the United States minister.

(6) The omission of the authorities at Champerico, in the face of this refusal, although they had the full sanction of the consul-general of the United States, to make the seizure at that place.

(7) The assertion in the letter of the minister of foreign relations to Mr. Hosmer of a right to search foreign vessels in territorial waters in time of war and capture those suspected of being hostile.

(8) The reference in the same letter to the contract with the company as the basis of a right to search and capture.

(9) The guaranty given to you by the President and secretary of foreign relations on the night of the 26th of August that the life of General Barrundia should be spared and that his prosecution should be limited to certain offenses.

(10) The reference in your telegram to Captain Pitts of the 27th of August, after your conference with the President and minister of foreign relations, to the right to arrest a person on a neutral ship in time of war.

(11) Your letter of the same date to the minister of foreign relations affirming that position and asking guaranties for the treatment of General Barrundia.

(12) The reply of the minister of foreign relations, who seems to shift his ground by an allusion to “common crimes,” but still bases his assertion of the right to seize on the doctrines of contraband, which apply only to a state of war, and gives the guaranties which you requested.

To these twelve evidences may be added the terms in which Señor Anguiano rejected Commander Reiter’s proposition, referring again to a state of war and the exercise of belligerent rights, as well as to the alleged existence of “martial law.”

It is no exaggeration to say that these various and unquestionable facts are not compatible with any other theory than that the authorities of Guatemala knew that they were suddenly and without notice violating an established usage. If they had felt that they were acting within their acknowledged right, it would have been unnecessary to appeal to the doctrine of contraband, which was applicable solely to a state of war which had ceased to exist, and which would not, upon the facts then known, have been applicable to General Barrundia, even if war had been flagrant. It is proper to notice that you observed the incongruity of the Guatemalan position as to General Barrundia’s status, but, unfortunately, you did not take a stand against it. You observed in your letter to Señor Anguiano of the 27th of August that the case was “an unusual one, taken in connection with the peace which was practically concluded last night, and of which a general amnesty was a part.” The case was, indeed, most unusual; for, if General Barrundia was in the service of the enemy, he came within the amnesty; if he was not in that service, he could not have been treated as contraband. So that on the one or the other horn of the dilemma the Guatemalan demand must fall.

One other feature of the case yet remains to be considered, that is, your communications to Commander Reiter, of the United States steamship Ranger, and your failure to avail yourself of the presence of that vessel. As has already been shown, you sent him two telegrams which you failed to report to this Department. The occasion of your sending the first one does not appear) but it was sent before the arrival of the Acapulco, and seems to have been intended to facilitate rather than discourage the design of Guatemala to seize General Barrundia at San José. Upon the receipt of this telegram, Commander Reiter went ashore and telegraphed to you, suggesting that, as peace was declared, you should ask the Government to permit the United States steamship Thetis to take General Barrundia from the steamer then in sight and carry him back to the port of Acapulco, in Mexico. Your second telegram, which was in reply to this, informed Commander Reiter of the rejection of this offer by the Government of Guatemala and stated that you had “advised “Captain Pitts to deliver his passenger to that Government. The naval force of the United States in those waters thus became an acquiescent spectator of events, although a merchant vessel of the United States was then lying under the muzzle of guns manned by men who, as you state you had every reason to believe, were prepared to resort to any act of violence, “even,” as Señor Anguiano has since declared to you, “to sinking the ship, notwithstanding it might have involved a conflict with our two war vessels then and there present.”

I am not disposed to pay undue regard to these ex post facto threats, which are now reported to the Department. I prefer to think that by extravagance of language, uncontrolled by the actual presence of the problem which he was permitted to solve so much to his satisfaction, Señor Anguiano has done injustice to his own sense of humanity. To have sunk the Acapulco, with her freight of innocent lives, in the execution of a purpose for the accomplishment of which nothing but unlawful and invalid excuses have so far been advanced, would have been an act of warfare, and of savage warfare. Even where towns are bombarded in time of war an opportunity is given to the peaceful inhabitants to escape. Less consideration should hardly be shown to those upon the sea. And I am instructed by the President to say that he earnestly trusts the time will never come when the course of events in Guatemala, or the declared purposes of her rulers, will constrain this Government to insure the safety of its merchant vessels entering the waters of Guatemala by stationing naval vessels along the coast and opposite the ports of that country.

The declarations which you report can not, however, fail to deepen the regret here felt that you should have permitted yourself to furnish the warrant and excuse for arbitrary and violent proceedings, without even the semblance of legal forms and authority, on the deck of an American vessel, which thereby became the scene of confusion, of danger, and of assassination. You had been informed by Captain Pitts that General Barrundia would probably resist arrest. You were also apprehensive of the desperate inclinations of those who sought to compass his capture as an “enemy.” If he had been willing to surrender himself without resistance, there was good reason to believe that the violence of a mob on shore would relieve the authorities of Guatemala of the duty of preserving their engagement to spare his life. In every respect the time was one of great disorder, when the ordinary law was suspended and life and liberty were at the mercy of the rulers and of an excited populace. If, instead of accepting that lawless and turbulent condition as the ground of your advice and consent to the surrender of General Barrundia, you had made it the basis of a suggestion to Commander Reiter to offer him hospitality on board of the Ranger, within or without the waters of Guatemala, and with or without the consent of her Government, your action would have had the sanction of humane and recognized precedents, In 1849 the British admiralty consulted the foreign office touching the disorders then prevailing at Naples. On the 4th of August in that year Mr. Addington, the undersecretary of state, replied as follows:

Viscount Palmerston directs me to request that you will acquaint the hoard of admiralty that his lordship is of opinion that it would not he right to receive and harbor on board of a British ship of war any person flying from justice on a criminal charge or who was escaping from the sentence of a court of law. But a British man-of-war has always and everywhere been considered a safe place of refuge for persons of whatever country or party who have sought shelter under the British flag from persecution on account of their political conduct or opinions; and this protection has been equally afforded, whether the refugee was escaping from the arbitrary acts of a monarchical government or from the lawless violence of a revolutionary committee.

These views, which were accepted at the time, appear subsequently, during the disorders in Sicily in 1860, to have been regarded by Her Majesty’s Government as containing sound doctrine. And still later, in 1862, during the revolution in Greece, Vice-Admiral Sir William Martin issued to the officers of Her Majesty’s ships in the Piraeus the following instructions:

It is to be understood that your duty at this port is to be limited to the protection of the lives and property of British subjects and to affording protection to any refugees whom you may be informed by Her Majesty’s minister would be in danger of their lives without such protection.

The doctrines of this Government are not less humane and liberal, and on more than one occasion it has permitted its legations and ships of war to offer hospitality to political refugees. This it has done from motives of humanity. Its views would not have been less pronounced if, in addition to the humane aspect of the subject, it had also been confronted with the duty of preventing the decks of its merchant vessels from being made the theater of illegal violence, upon groundless and unlawful excuses, and without even the pretense of legal formality.

For your course, therefore, in intervening to permit the authorities of Guatemala to accomplish their desire to capture General Barrundia, I can discover no justification. You were promptly informed that your act was regretted. I am now directed by the President to inform you that it is disavowed. The President is, moreover, of opinion that your usefulness in Central America is at an end. You will therefore leave your post with all convenient dispatch, turning over your legation to Mr. Kimberly, as chargé d’affaires ad interim, through whom your letter of recall will subsequently be presented to the Guatemalan Government.

I am sir, your obedient servant,

James G. Blaine.