Mr. Gresham to Mr. Huntington.
Washington, December 30, 1893.
Sir: I have given attention to your letter of the 13th instant, in which you refer to the recent firing upon your steamer Costa Rica in the Honduranian port of Amapala, and repeat the suggestion contained in your letter of November 11, 1893, that a definite policy in respect to surrendering accused criminals when claimed by the local authorities in a port of call be outlined for the guidance of your commanders.
It is not practicable to lay down a general fixed rule applicable to the varying conditions in such cases. As a comprehensive principle, it is well established in international law that a merchant vessel in a foreign port is within the local jurisdiction of the country with respect to offenses or offenders against the laws thereof, and that an orderly demand for surrender of a person accused of crime by due process of law, with exhibition of a warrant of arrest in the hands of the regularly [Page 297] accredited officers of the law, may not be disregarded nor resisted by the master of the ship. On the same voyage when the Amapala incident occurred, Capt. Dow appears to have acted on this principle in allowing the arrest at other ports, on proper judicial warrant, of two or three other passengers accused of crime. That the passenger may have come on board at the port where the demand is made, or at another port of the same country, is immaterial to the right of local jurisdiction.
Arbitrary attempts to capture a passenger by force, without regular judicial process, in a port of call, may call for disavowal when, as in the present case at Amapala, the resort to violence endangers the lives of innocent men and the property of a friendly nation. Whether, if force be threatened, the master of the vessel is justified in putting in jeopardy, by his resistance, the interests committed to his care, must be largely a question for his discretion. It is readily conceivable that the consequences of futile resistance to overpowering force may be such as to make the resistance itself unwarrantable.
The so-called doctrine of asylum having no recognized application to merchant vessels in port, it follows that a shipmaster can found no exercise of his discretion on the character of the offense charged. There can be no analogy to proceedings in extradition when he permits a passenger to be arrested by the arm of the law. He is not competent to determine whether the offense is one justifying surrender, or whether the evidence in the case is sufficient to warrant arrest and commitment for trial, or to impose conditions upon the arrest. His function is passive merely, being confined to permitting the regular agents of the law, on exhibition of lawful warrant, to make the arrest. The diplomatic and consular representatives of the United States in the country making the demand are as incompetent to order surrender by way of quasi-extradition as the shipmaster is to actively deliver the accused. This was established in the celebrated Barrundia case by the disavowal and rebuke of Minister Mizner’s action, in giving to the Guatemalan authorities an order for the surrender of the accused.
If it were generally understood that the masters of American merchantmen are to permit the orderly operation of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable on the one hand that occasions of arrest would be less often invited by the act of the accused in taking passage with a view to securing supposed asylum, and on the other hand that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the part of this Government.
I am, etc.,