Mr. Shannon to Mr.
Foster.
[Extract.]
Legation of
the United States,
Managua, October 13, 1892.
(Received November 11.)
No. 220.]
Sir: In January, 1885, Don José Dolores Gámez (not
Gomez), a Nicaraguan political refugee, having embarked at San José,
Guatemala, for Punta Arenas, Costa Rica, on board the Pacific Mail Company’s
steamship Honduras, Capt. James McCrae commanding,
efforts were made by the Nicaraguan authorities to arrest Gámez while the
steamer was lying in the port of San Juan del Sur, but without success.
Capt. McCrae refused to give up his passenger; refused to go on shore when
requested by the com andante to do so; and finally, when requested not to
sail for twenty-four hours, did, it is alleged, sail in two hours and
without the usual permit from the comandante of the port.
For these offenses Capt. McCrae was tried in the Mcaraguan courts, but in
examining those volumes of our Foreign Relations that refer to the case I
find that the reports sent to the Department at the time with regard to the
legal proceedings taken against the captain were not only incomplete, but
wholly erroneous.
Mr. Blaine in his No. 206 of November 18, 1890, to Mr. Mizner, cites Mr.
Bayard’s No. 226 of March 12, 1885, as “reviewing the facts (of
[Page 46]
the Gámez case) so far as known, and
adverting to the incompleteness of the information as to the proceedings
against the captain.”
Mr. Bayard in his No. 226 of March 12, 1885, to Mr. Hall (vide Foreign Relations for 1885, p. 82) uses
the following language:
The consul reports that for these offenses the captain has been tried
by the Nicaraguan Government and found guilty, and although he has
not been able to learn the nature of the sentence, he is convinced
from the present attitude of the Government that the sentence will
be executed in case of the return of the captain or the vessel
within the jurisdiction of the Government of Nicaragua.
Finally, Mr. H. H. Leavitt, United States consul at Managua, in his note to
Mr. Hull of February 3, 1885 (vide Foreign
Relations for 1885, p. 71), says:
For these alleged offenses he (the captain) has been tried by the
Nicaraguan Government and found guilty, but I have not yet been able
to learn what sentence they had passed upon him.
In this connection I might also quote the words of his excellency Señor
Anguiano, minister for foreign affairs of Guatemala, who, in his special
report to the legislative assembly, dated March 31, 1890, regarding the
capture and death of Gen. J. Martin Barrundia, at page 65, refers to the
Gámez incident in the terms of which the following is a translation:
Upon the arrival of the Honduras at San Juan
del Sur the authorities requested the captain to deliver up Gámez.
He refused to do so, and put to sea without the customary permit.
For this violation of the fiscal laws of Nicaragua a suit was
brought in the courts, and the captain was declared guilty by
default (en rebeldia).
As I find upon inquiry that all these statements and reports regarding “the
sentence passed upon” Capt. McCrae are wholly erroneous, and as the Gámez
case has acquired unusual importance through the fact that Mr. Bayard’s
decision in reference to it was the chief ground upon which Mr. Mizner
defended his course in the Barrundia affair, I have thought it desirable, in
order to complete the Department’s record of the case, to obtain a copy of
the sentence itself, and herewith beg to transmit it accompanied by a
translation.
The sentence, it will be seen, goes fully into the case, citing authorities
on international law to prove that the delivery of Gámez to the Nicaraguan
authorities could not properly be demanded of the captain under the
circumstances; and that the charge of disrespect for the authorities brought
against the latter was unfounded.
The passages cited from the writings of Bello and Calvo, and from the codes
and constitution of Nicaragua, are herewith appended in the original,
accompanied by translations.
I take the liberty also of adding a remarkable passage from Riquelme, the
last paragraph of which refers to a supposed case similar to that of
Gámez.
The sentence in the case of Capt. McCrae is dated February 9, 1885, and
although it was promptly referred to the supreme court at Granada for
consultation, that tribunal did not pronounce judgment till April of the
present year, when a decree was issued simply approving the sentence without
making any review of the case or giving any reasons.
The sentence was published in “La voz del pueblo,” a newspaper of Granada,
immediately after being pronounced and led to an animated discussion in the
press throughout the country. * * *
I have, etc.,
[Page 47]
[Inclosure 1 in No.
220.—Translation.]
Criminal Court of the First Instance,
Rivas, February 9, 1885, at 11:30
a.m.
In view of the summary information officially taken against the captain
of the North American steamer Honduras, James
McCrae, supposing him to be guilty of the crime of disrespect against
the authority of the governor and intendant of San Juan del Sur, Col.
Don Adolfo Guerra, an adult 50 years of age, ariculturalist and resident
of Potosi, it being said that the said captain openly disobeyed the said
governor by not delivering up to him Don José Dolores Gámez, G., who
passed by San Juan del Sur on board of the Honduras the 20th ultimo, which delivery was demanded by order
of the supreme government; and,
Considering, that to constitute the crime of disrespect according to
paragraph 5 of article 177 of the penal code, it is necessary that there
should be open resistance or disobedience to the authority, which
circumstances do not appear clearly shown in the present case, because
if indeed it be true that Capt. James McCrae did not deliver Senor José
Dolores Gámez, G., whose delivery was demanded verbally by the
comandante of the port of San Juan del Sur, it is also true that such
obligation on the part of the said captain did not exist, or at least is
doubtful, and still more so in the form in which the delivery of the
said Senor Gámez was demanded, since, although the ship from which such
delivery was demanded is a merchant ship, and ships of this class,
according to the general principles of international law, are subject to
the local jurisdiction, this subjection is not absolute according to
those same principles, but limited to crimes, as well as to offenses
falling within the jurisdiction of the police and committed on board of
said ship.
Considering, that if indeed it be true that Señor Gámez, when his
delivery was demanded of the captain of the Honduras by the comandante of the port of San Juan del Sur,
was in Nicaraguan waters, so also it is true that when the said Gámez
took passage in that steamer it was from one of the ports of the other
republics of Central America, and that this circumstance renders still
more doubtful the obligation that the captain was under to deliver him
up, because, when certain cases have arisen analogous to the one under
consideration among nations more civilized than our own, it has been
alleged, as a reason to justify the delivery, that both the embarking of
the passenger, as well as his delivery, must be made in national
waters.
Considering, that the said Señor Gámez is not accused of common crimes,
but of political offenses according to the decree of the 9th of
September of last year, which appears at pages 9 and 10 of the papers in
this suit, and that it is a doctrine universally accepted in the works
of writers on international law that if indeed merchant vessels are
subject to the local jurisdiction as regards persons accused of common
crimes, they are always exempt from that jurisdiction as regards those
accused of political offenses, all of which relieve the captain from the
obligation of making the delivery demanded of him.
Considering, that if for the extradition, from places which enjoy
extraterritoriality, of those accused of common crimes, there are always
required more formalities than that of a simple verbal order,
notwithstanding that, as to this class of accused persons, governments
have not presented much difficulty in stipulating their delivery, and
that, as previously said, Señor Gámez is not a person accused of common
crimes.
Considering, that if the disrespect charged is considered to have been
shown because Capt. James McCrae did not come on shore at the demand for
his presence there by the comandante of the port—in this demand that
functionary did not express the object for which he required the
captain’s presence, and this circumstance excused the captain from
appearing, since no person can be required to appear before the
authorities without some justifiable cause, and at the same time stating
it.
Considering, that the circumstance of the steamer Honduras not having remained in port the twenty-four hours
which the governor required of Capt. McCrae, does not constitute a crime
or offense, but only furnishes ground for a civil action, resulting from
the violation of a contract, provided such violation be committed; and
all this being certain, as it is, the crime of disrespect imputed to the
captain of the steamer Honduras, James McCrae,
was never committed.
In view of these considerations, therefore, and in accordance with the
doctrines of Don Andres Bello, expressed in his “Principios de Derecho
Interna clonal,”’ chapter 4, No. 8, pages 66 and 67; the views of Don
Carlos Calvo, given in his “Derecho Internacional, teórico y práctico de
Europa y América,” first part, chapter 5, paragraph 200, pages 314 to
317; and in view of the terms of article iv of
the constitution of the Republic, article 177, paragraph 5 of the penal
code, and article 186, first paragraph, of the code of criminal
procedure,
I now decide, that there has been committed no crime of disrespect for
which the captain of the steamer Honduras, James
McCrae, has been tried, and in consequence I
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close definitively this trial, sending this
sentence for consultation to the supreme court of justice for the
Orient.
Before the secretary:
Before me,
Fernando Cisneros,
Secretary.
[Inclosure 2 in No.
220.—Translation.]
Having examined the extent of the jurisdiction we will now proceed to
treat of the subject under consideration:
1. The cognizance of crimes committed in any part of the territory of the
nation, be the offenders citizens or foreigners, belongs exclusively to
its courts.
Consequently, the offense committed on board of any merchant ship in our
waters ought to be exclusively judged and punished by our courts, it
being understood by offense the violation of our laws. If an act, then,
committed in a foreign ship anchored in our waters should not be
prohibited by our laws, but should he by the laws of the country to
which the ship belongs, the cognizance and punishment of that offense
would not belong to our national courts. In virtue of the same principle
the infractions of the regulations and discipline on board of the
foreign ship committed by individuals of the crew are not within the
jurisdiction of our courts.
(Bello: Principios Derecho Internacional, Capítulo iv, No. 8, pags. 72 y 73, edicion de Paris, 1882.)
[Inclosure 3 in No.
220.—Translation.]
Extradition properly so-called can not be applied in all cases to
criminals who take refuge on board of foreign ships anchored in a port,
Over foreign warships the local authorities have no jurisdiction
whatever. The extradition of criminals who may have taken refuge in them
should be effected by a demand made on the commander, or through
diplomatic negotiations. The same does not happen with merchant vessels,
which in this matter are entirely subject to the authorities of the port
in which they are. Nevertheless, the rights of the local authorities to
seize criminals who may have sought refuge on board of merchant vessels
do not exist unless they are within the waters of the state. Many
international questions may arise about the application of this
doctrine.
In 1840 a French merchant vessel, L’Océan,
received on board in the port of Valencia, Señor Sotello, an ex-Spanish
minister, pursued for political reasons. The ship left the waters of
Valencia and those of Spain, but having arrived at Alicante the
authorities of that city went on board and arrested him. In this case
the right of the Spanish authorities was unquestioned. The French
merchant vessel had received the ex-minister in a Spanish port, and he
was afterwards captured in a Spanish port. In the light of these facts
it could have no weight that the merchant vessel had been for a more or
less time on the high seas. If the vessel had received Señor Sotello at
a point where there was no violation of the laws of any state, and where
it could be considered as a part of the French territory, the
authorities of Alicante would not have been able to rightfully arrest
the said Señor Sotello.
(Calvo, Derecho Internacional, teórico y práctico de Europa y América,
part 1a, Capítulo v. Sec. 200, pags. 316 y 317 cdicion de Paris, 1868.)
[Inclosure 4 in No.
229.—Translation.]
Constitution of Nicaragua.
Article IV.—The Government of the Republic is
by popular representation; its object is the preservation of the
liberty, equality, security, and rights of property of its members. It
is divided for the purpose of administration, into three distinct,
powers: the legislative, the executive, and the judicial, and the
attributes of each are limited to those conferred by the constitution
and the laws. Every act done beyond the lawful limits of such attributes
is null and void.
[Page 49]
[Inclosure 5 in No.
220.—Translation.]
Those are guilty of want of respect for the authorities.
5. Who openly resist or disobey the authorities.
(Article 177 of the penal code of Nicaragua.)
[Inclosure 6 in No.
220.—Translation.]
The judge will decree a provisional setting aside of the case when there
shall appear only prima facie proof of the offense, or this being fully
proved there result only slight presumptions against the accused; and
then he will set it aside definitively.
1. When from the summary statement it results that the offense has not
existed for which the accused is prosecuted, or the fact which is
investigated is not legally punishable.
(Article 186, code of criminal instruction of Nicaragua.)
[Inclosure 7 in No.
220.—Translation.]
War ships being regarded as a part of their national territory, the
deduction is natural that extradition could not take place except in the
same manner as it takes place in the territory itself, since, otherwise,
these ships would be subject to the jurisdiction of the foreign
ports.
* * * * * * *
With reference to merchant vessels the rule is different, because the
condition of the ship is different. A merchant vessel in a foreign port
only enjoys independence in those cases where neither the tranquillity
of the port nor the convenience of other individuals than those of its
crew are interested. Outside of these matters it is subject to the
regulations of the police and the local jurisdiction. Consequently, when
it is known to the authorities that in a merchant vessel asylum has been
given to a criminal they have the right to go on board to investigate
the fact and to effect the extradition, but having always present the
consular agent or the commander of a ship of war in the port of the same
nation to which the merchant vessel belongs. If the asylum should be
granted to a criminal whose concealer, by the laws of the state, would
be subject to a penalty, the captain of the merchant vessel would be
triable for this act, and he would be subject to the local
jurisdiction.
From what is here set forth we deduce that the commander of a ship of war
only responds for his conduct to his Government, while the commander of
a merchant vessel responds, with his ship, to the local authorities.
The doctrine thus established refers to cases where the asylum has been
granted in a port of the state to which the refugee belongs; since
should he enter the ship while on the high seas or in the port of
another state, although the vessel may be going to a port of the nation
to which the refugee belongs, the extradition will not take place;
because in granting such asylum there is no infringement of the laws of
the country in which the ship is. This asylum took place when the ship
was not under the local jurisdiction of the port.
(Antonio Eiquelme, “Elementos de Derecho Publico Internaeional,” Capitulo
X, pags. 249, 250, y 251, edicionde Madrid, 1849).
