traordinary circumstances, which extend no further than to those immediate cases themselves, and furnish no rule of general practice in such as are ordinary. How far the case of Mr. Brown comes within such a description I am not enabled to state confidently by any exact knowledge of the facts, and particularly of the nature and validity of that authority under which the acts charged upon him by the Spaniards are said to have been committed. It would be improper in me to define what the British Government had not thought proper to define. Holding the opinion that before any Act of Parliament or proclamation issued, it was unlawful for a British subject to accept a hostile commission from any persons either in war or rebellion against a State in amity with the Crown of Great Britain, I am led to think that the Spaniards would not have been chargeable with illegal violence if they had thought proper to employ force in taking this person out of the vessel (British), and I add that it was certainly very undesirable to furnish occasions for the lawful use of force in the intercourse of friendly nations. Taking the authority under which Brown acted to be clearly invalid (which I do not mean to assert), I think it might possibly appear that Captain Falcon's conduct was more to be commended for its humanity and spirit than for its strict legality. -William Scott, Grafton Street, 28th November, 1829."1

1 On the receipt of this opinion a copy thereof was forwarded to the Foreign Office, and Lord Castlereagh, in a letter dated the 29th of December, 1820, addressed to the British minister at the Court of Spain, thus expressed himself :—

แ

Your Excellency will find it easy from these papers, to give such an explanation of the circumstances which attended the liberation in England of this individual, as will be satisfactory to the Spanish minister. You will at the same time, on the part of your Court, disavow Captain Falcon's conduct in rescuing Brown on board his ship within a Spanish port, and not delivering him up, upon the requisition of the local authorities. The officer, no doubt, acted upon a good motive, but in assuming that the British flag could protect him against the legal process of the territorial jurisdiction within which the parties then were, was to maintain a principle, which the British Government desires distinctly to disclaim as not consistent with their uniform practice, or with the Law of Nations." (Report of Royal Commission on Fugitive Slaves, p. LXXVII).

On the other hand, a directly opposite view was expressed by Lord Palmerston, in 1849. Mr. Addington, writing to the Secretary of the Admiralty, August 4th, said :

"Viscount Palmerston directs me to request that you will acquaint the Boarl of Admiralty that his Lordship is of the opinion that it would not be right to receive and harbor on board 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 had sought shelter under the British flag from persecution on account of their political conduct or opinions;

(c) On Board Merchant Ships.

SOTELO'S CASE, 1840.

(Calvo: Droit International, 4th Ed., I, 569.)

The right of granting asylum to political refugees does not belong to merchant vessels, in the ports of such refugees' country.

"En 1840 le paquebot à vapeur français l'Océan, qui faisait des voyages réguliers entre Marseille, la côte d'Espagne et Gibraltar reçut à son bord, au mouillage de Grao (Valence), M. Sotelo, ex-ministre espagnol, poursuivi pour cause politique. Ayant remis en mer sans qu'on se fût immédiatement aperçu du nombre et de la personnalité des passagers qu'il avait embarqués, le navire se rendit à Alicante; mais là, au moment même de la visite de douane et de police, M. Sotelo fut reconnu, saisi, emmené à terre, puis emprisonné.

Le

and this protection has been equally offered, whether the refugee was escaping from the arbitrary acts of a monarchical government, or from the lawless violence of a revolutionary committee. * * *

Although the commander of a ship of war should not seek out or invite political refugees, yet he ought not to turn away or give up any who may reach his ship and have obtained admittance on board. Such officer must of course take care that such refugees shall not carry on from on board his ship any political correspondence with their partisans on shore, and he ought to avail himself of the earliest opportunity to send them to some place of safety elsewhere." (Rep. of Royal Comm. on Fug. Slaves, p. 155).

For a full discussion of the question of the exterritoriality of ships of war, see the separate reports of Lord Chief Justice Cockburn, and Mr. Rothery, in the "Report of the Royal Commission on Fugitive Slaves," 1876. Mr. Rothery takes strong ground against the right of asylum on such ships.

Sir James Fitzjames Stephen, another member of the commission, takes similar ground. (Stephen's History of the Criminal Law, II., 57).

As to American practice, Attorney-General Bradford held, in 1794, that a "writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship of war, the commander being amenable to the usual jurisdiction of the state where he happens to be, and not entitled to claim the extraterritoriality which is annexed to a foreign minister and his domicil." (Wharton's Digest, I., 138.)

But in 1855, Attorney-General Cushing—a high authority-held, that a "prisoner of war on board a foreign ship of war, or of her prize, cannot be released by habeas corpus issuing from courts of the United States or of a particular State." And again, in 1856, "ships of war enjoy the full rights of extraterritoriality in foreign ports and territorial waters." (Wharton's Digest, I., 138.) It would seem to follow, therefore, that right of asylum could be granted on American ships of war. In South American ports it has frequently been done.

capitaine de l'Océan protesta contre ce qu'il qualifiait de violation de pavillon, et réclama vainement la mise en liberté de son passager, en invoquant à la fois le droit d'asile et le principe d'exterritorialité, "Ses communications diplomatiques échangées au sujet de cette affaire entre le gouvernement de France et celui d'Espagne établirent de la manière la plus péremptoire que la conduite des autorités d'Alicante était à l'abri de tout reproche; que nulle atteinte n'avait été portée au respect du pavillon, puisqu'il s'agissait d'un navire marchand ordinaire et d'une mesure de haute police exécutée dans l'intérieur du port; que M. Sotelo, embarqué subrepticement à Valence, port espagnol, avait pu régulièrement être saisi et arrêté à bord de l'Océan dans un autre port du même pays; enfin que la circonstance d'avoir navigué en pleine mer pendant un certain temps, avant d'atteindre Alicante ne pouvait altérer la nature du fait délictueux accompli au point de départ et constaté au point d'arrivée sous l'empire des mêmes lois de la même législation territoriale."

OPINION OF LORD ABERDEEN, 1844.

(Rep. of Royal Comm. on Fugitive Slaves, 154.)

Merchant vessels possess no right of asylum.

Viscount Canning writes to the Secretary of the Admiralty, March 20, 1844, as follows:

:

"Sir, I have laid before the Earl of Aberdeen Sir J. Barrow's letter of the 9th instant, from which it appears that the Lords Commissioners of the Admiralty wish to know what line of conduct should be pursued by the commanders of the hired vessels which convey the mails between this country and the Peninsula, if it should happen that the authorities of Vigo should attempt to remove from any of these vessels a Spanish subject who may have embarked at Lisbon, being provided with a Portuguese passport, countersigned by the British, French, and Belgian Legations at Lisbon.

"In answer to the above inquiry, I am directed by Lord Aberdeen to acquaint you, for the information of the Lords Commissioners of the Admiralty, that there is no stipulation in the existing treaties between this country and Spain which can be deemed sufficient to debar the Spanish Government from exercising the right which, in his Lordship's opinion, appertains to that government of claiming its own subjects when they may be found in a Spanish port as passengers on board vessels hired to convey the mails between this country and the Peninsula."

CASE OF GOMEZ.

BAYARD, SEC. OF ST., TO HALL, MARCH 12, 1884.

(U. S. Foreign Relations, 1885, p. 82).

Merchant vessels possess no right of asylum.

"Sir, I have to acknowledge the receipt of your No. 316, of the 10th ultimo, in which you enclose copies of the correspondence between the legation at Guatemala and Mr. Leavitt, the United States consul at Managua, respecting the case of José Dolores Gomez, and request more definite instructions for such cases.

"It appears that Mr. Gomez, who is said to be a political fugitive from Nicaragua, voluntarily took passage at San José de Guatemala for Punta Arenas, Costa Rica, on board the Pacific Mail steamship Honduras with the knowledge that the vessel would enter en route the port of San Juan del Sur, Nicaragua.

"The government of Nicaragua upon learning of this fact ordered the commandant of the port of San Juan del Sur, to arrest Gomez upon the arrival of the Honduras at that port.

"The minister for foreign affairs of Nicaragua informed Mr. Leavitt, United States consul at Managua, of the action of the gov ernment by a telegram, as follows:

"Government has ordered the commander of port San Juan del Sur to arrest José Dolores Gomez, a fugitive prisoner, who is on board of the steamer Honduras, now en route to that port. I suppose the captain will not interfere with the action of the commander, but to avoid whatever difficulties likely to arise I suggest you to send a telegraphic message to the captain of the Honduras, at San Juan del Sur, stating that the order has been issued by the government and recommending him to support the commander as there is no ground on the part of the captain to hinder the execution of the government order.'

"It appears that, before Mr. Leavitt had an opportunity to act. upon this request, you telegraphed him as follows:

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'Reported here arrest of a transit passenger bound to Panama on board steamer Honduras at San Juan del Sur. Say respectfully to Nicaraguan minister of 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 any passenger in transit, much less if offense is political.'

“It appears that Mr. Leavitt declined to comply with the request of the minister of foreign affairs, and followed your instructions by submitting a copy in writing to the minister.

"From the brief outline given by the consul of the subsequent proceedings, it appears that the government authorities at San Juan del Sur, upon the arrival of the Honduras at that port, requested the captain to deliver up Mr. Gomez. This he declined to do, and set sail without proper clearance papers.

"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.

"As the nature and character of the proceedings against the captain of the Honduras are not known to this Department, a full and detailed report should be made as early as practicable. It is clear that Mr. Gomez voluntarily entered the jurisdiction of a country whose laws he had violated.* * *

"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." 1

1

'In the similar case of Barrundia, 1899, the government of the United States set up a different rule. Barrundia was a political refugee from Guatemala who took passage, at a Mexican port, on the Pacific Mail Steamship Acapulco (American) for Salvador. The steamer was to call on the way at several ports of Guatemala; and on learning of the movements of Barrundia, the government of Guatemala proposed to arrest him. That it could legally do so was the opinion of the American Minister, Mizner, and the American Consul-General, Hosmer, and they so advised the captain of the Acapulco, and the authorities of Guatemala. In the attempt to arrest Barrundia on board the steamship, he resisted and was killed. For his part in the affair, Mr. Mizner was severely censured, and recalled from his post. Commander Reiter of the U. S. ship of war, Ranger, who was present in the port at the time, was also sent into disgrace for not interfering to prevent the arrest.

In his dispatch to Mr. Mizner of November 18, 1890, Mr. Blaine reviews the facts and the law of the case; much of his argument has no bearing on the case, and many of his citations go to disprove his own view of it. It is hardly too much to say that there is no foundation in International Law for the position of the