Mr. Bayard to Mr. Becerra.
Washington, June 15, 1885.
Sir: After a slight delay, due to the pressure of urgent public affairs and partly to the necessity of awaiting a translation of the paper I am about to consider, I have the honor to acknowledge the receipt of your note of the 14th ultimo in relation to mine to you of the 24th of April last, concerning the recent decrees of the Federal Government of the United States of Colombia, by which certain ports of the Caribbean coast were declared closed to commerce without the institution of effective blockade, and by which, also, certain described vessels on that coast were declared to be pirates and their capture invited by the forces of any foreign sovereign.
[Page 273]I am pleased to learn that the altered circumstances at the time you write render it unnecessary, in your judgment, to place upon record any dissent from the position taken by this Government with respect to the attempted enunciation by that of Colombia of a claim of closure of maritime ports which is denied by the consensus of modern opinion and which the Government of the United States could not admit.
On the second point, you invite a direct issue by denying the position I assumed with regard to the vessels which your Government had assumed to declare piratical.
The principle upon which I based my note of April 24 was, generally, that there cannot be paper piracy with international effects and obligations anymore than there can be a paper blockade of effective character. In the one case as in the other no force or effect can be communicated by a municipal decree which is not inherent in the case itself, and I felt constrained to announce to you that this Government could not deem itself bound in any manner by such a decree, either as entailing any international obligation or as conferring upon it any derived jurisdiction in the premises. The position seemed so self-evident and is so abundantly supported by authority that I deemed it quite unnecessary to enter into argument or collation of precedents to sustain the simple announcement.
It would seem, however, that you have misunderstood that announcement, and you now seek to controvert on the assumption that it recognizes the vessels mentioned in the Colombian decree as legitimate belligerents, thereby divesting them of whatever inherent piratical character they may possess. Your argument, and the precedent of the Magellan pirates adduced by you, aim to show that vessels of this character, even though ostensibly in the service of a hostile insurrection, may be tainted with piracy to a degree to bring them within the jurisdiction of a foreign State whose forces may have captured them on the high seas.
This position I am not disposed to deny, but I then did feel bound to deny, and do so still, that a municipal decree of a sovereign can communicate to a single vessel, or in comprehensive terms to a class of vessels, a character of piracy which they may not already possess under the circumstances surrounding each particular vessel, or that a foreign sovereign can derive or exercise any power, obligation, or jurisdiction in virtue of such a municipal decree which it does not already possess in the nature of the case under the law of nations. Were any foreign government to exercise such right or jurisdiction in the case of a vessel found committing acts in themselves piratical, a decree of this character could only, by the widest stretch, be deemed an acquiescence in and voluntary confirmation of the power and right so exercised by the law of nations. It could not be held to confer the right to capture and judge an actual pirate any more than, assuming the contrary position by way of hypothesis, it could deny or assume to annul that right in a given case.
I find the general dictum of modern authority in this relation so well summed up by Calvo—whose impartiality as a jurist has never been questioned—that I cite his observations thereon in full:
Has a Government a fundamental right to declare pirates and to punish with death rebels who sail the seas in order to capture property belonging to subjects or citizens remaining faithful to the established power? To solve this question, it is unnecessary to take into account the number and the situation of the rebels with respect to the Government they attack, and the extent, organization and material forces” of the insurrection.
[Page 274]In principle, and so long as no more is proposed than the overthrow of the established power—the substitution of one Government for another—rebellion is a politica crime pertaining exclusively to the internal public law of each nation; its criminal character, and the civil or military jurisdiction under which it should be, depend, therefore, on the special domestic laws governing the matter. The Government whose existence is set at stake by the rebellion is free and sovereign to proceed against and repress in its own way, by the forces at its command, attacks which may be leveled against it, but it is not sufficient for it to attach to the act the qualification of piracy to cause such a rebellion to be transformed ipso facto, in the eyes of foreign states, into a crime against the law of nations, and to become punishable as such. So true is this, that the country wherein has broken out a rebellion, which by its strength and duration assumes the character of a civil war, may from its own point of view, and to suit its own convenience, behold only acts of piracy in operations which other countries, aloof from the contest, may consider and respect as belligerent acts. (Calvo, Droit International, 2d ed., 1870, 1, 390.)
A striking instance of the application of this principle occurred in Spain in 1873. An insurrection broke out in the province of Murcia, and the navy-yard at Cartagena was seized. The vessels found there, among them powerful ironclads, were manned and sent to cruise along the Mediterranean coast against the power of the established Government, to whom they belonged, and by whom they had been purchased or built. The president of the executive power by decree proclaimed those Vessels to be pirates, and invited their capture as lawful prize, by any power, whereupon the commander of a German iron-clad captured one of the revolted vessels in the Mediterranean. It was adjudged by the German admiralty court that the captured vessel was not good prize, because not a pirate under the law of nations, and that the German commander could derive no power or warrant from the municipal decree of the Spanish Government.
The case of the Magellan pirates, to which you refer, was adjudged on its merits to have been one of piracy per se, as is, indeed, abundantly evident from the facts narrated in Phillimore’s summary, which you follow. Of the vessels seized by the mutinous convicts, one was British, the other American. The British admiral, Moresby, was not claimed to have acted in virtue of or in obedience to any decree of the Chilian Government, such as that to which you refer. He needed no such authority under the law of nations, nor could he have derived an iota of authority from such Chilian decree in the absence of international authority. In respect of the British vessel, the Eliza Cornish, he undoubtedly exercised the right of recovery of stolen property, which, as I explained to you in my note of April 24, is an inherent right, apart from the international-law right to capture an actual pirate, hostis humani generis. Had I deemed that the plain ground taken by the United States Government required elucidation or fortification by recorded precedent, I would have taken the case of the Magellan pirates as the nearest and aptest at hand, and I would have appended to it the following additional quotation from Calvo, which follows the passage above cited:
As for isolated revolts, in a certain sense individual acts, and leading to predatory acts on the high seas committed under a flag which is not recognized as belonging to a constituted and sovereign state, it is evident that they fully involve assimilation with piracy and repression as a crime against the law of nations.” (Op. cit., 1, 391.)
It is to the class of crimes thus described by Calvo that the fifty-three hundred and seventieth section of the Revised Statutes of the United States, cited by you, refers.
It is evident, however, that the piratical character of such acts, and the consequent jurisdiction of any sovereign power in respect thereof, must depend on the circumstances of the individual case, and cannot [Page 275] be derived from such a municipal enactment as the decree of the Colombian Government now under our consideration.
That the Government of the United States fully comprehends its international-law duty in the premises is shown by the tenor of the instructions recently sent to its naval officers in the Caribbean Sea. Under those orders a vessel, the Ambrose Light, has been captured by one of our cruisers, and is now on its way to the United States for submission to the judgment of the courts. The responsibility accruing to our naval commanders under those instructions requires the reasonable ascertainment of the fact of piratical seizure or of the commission of piratical acts under the law of nations, in the case of each vessel.
It does not seem necessary for me now to answer, further than by way of allusion, the point you make that the guarantees of the treaty of 1846, relative to the keeping open of a specified transit route, are not impaired by reason of a change of locality, on the part of those disturbing that transit, to another place in Colombian territory. If this point be seriously urged, audits mere statement be not its own sufficient refutation, I shall be happy to meet it.
Under all the circumstances, I am constrained to reaffirm the position heretofore announced on behalf of this Government, that the Colombian decree declaring certain vessels in the service of the insurgents to be pirates cannot be recognized by the United States as importing international effects.
Accept, sir, &c.,