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of the British Government, excluding certain classes of publications from Great Britain, is not inconsistent with that convention.

Mr. Blaine, Sec. of State, citing Mr. James, Postmaster-General, to Mr. Ford,
June 18, 1881. MSS. Dom. Let.

For a review of the treaty of Washington and the Geneva arbitration, see 3
Phill. Int. Law (3 ed.), 251 ff.


§ 151.

Under article 9 of the treaty with the Hanseatic Republics of December 20, 1827, together with article 4 of the treaty with Belgium of 1858, steam vessels of Bremen, plying regularly between that port and the United States, have, during the entire period subsequent to the date of the ratification of said treaty with Belgium, been exempt from tonnage-tax in American ports, by force of article 9 of said treaty with the Hanseatic Republics and are entitled to a refund of any such tax which has been collected from such vessels in American ports at any time within that period.

14 Op., 530, Williams, 1875; see Infra, § 162.

(14) HAWAII.
§ 151a.

Questions concerning intervention in Hawaii are discussed, supra, § 62.

"In the year 1826 Thomas Ap Catesby Jones, commanding the United States sloop of-war Peacock, signed articles of agreement in the form of a treaty with the King of the Hawaiian Islands. The Hawaiians professed to have observed this as a treaty, but it was not regarded as such by the United States.

"In December, 1842, the 'duly commissioned' representatives of King Kamehameha III proposed to Mr. Webster, Secretary of State, to conclude a treaty whenever the sovereignty of the King should be recognized. In support of their proposal they said, 'Twenty-three years ago the nation had no written language, and no character in which to write it. * The nation had no fixed form or regulations of government except as they were dictated by those who were in authority, or might by any means acquire power. But under the fostering influence, patronage, and care of His Majesty, and that of his predecessors, the language has been reduced to visible and systematized form, and is now written by a large and respectable portion of the people. A regular monarchical government has been organized of a limited and representative character. A code of laws, both civil and criminal, has been enacted and published. Their position is such that they constitute the great center of whale-fishery for most of the world. They are on the principal line of communication between the western continent of America and the eastern continent of Asia; and such are the prevailing winds on that ocean that all vessels requiring repairs or supplies, either of provisions or of water,



naturally touch at those islands, whether the vessels sail from Columbia River of the North, or from the far distant ports of Mexico, Central America, or Peru upon the south.'

"Mr. Webster replied, 'The United States have regarded the exist ing authorities in the Sandwich Islands as a Government suited to the condition of the people, and resting on their own choice, and the President is of opinion that the interests of all the commercial nations require that that Government should not be interfered with by foreign powers. The President does not see any present necessity for the negotiation of a formal treaty.' It was not until 1849 that a treaty was concluded.

"Under this treaty it was held by Attorney-General Speed (June 26, 1866), that the consular courts at Honolulu have the power, without interference from local courts, to determine, as between citizens of the United States, who comprise the crew of an Americau vessel, and are bound to fufill the obligations imposed by the shipping-article.”

Mr. J. C. B. Davis, Notes, &c.

Mr. Fernando Wood's report on the bill to carry into effect the Hawaiian treaty of 1875 is given in House Rep. 116, 44th Cong., 1st sess.

(15) ITALY.
§ 152.

"By direction of your Government you make two points concerning that convention (of Feb. 8, 1868). The first you present in the following words: First, in Article XIII, line 2, by the word "officers" of a ship, the Italian Government presumes that you include the captain. You will please inform me if that is so.'

"I answer directly that I understand the word officers' of a ship to include the captain.

"In the second place you say, 'My Government supposes you would like to continue a common reciprocity in Italian ports not mentioned in the convention, which is, that your consuls be notified by the Italian authorities of certain visits they are sometimes compelled to make on board American merchant vessels. Hoping you will give the Federal authorities instructions to grant these reciprocal favors to Italian consuls, my Government will not fail to issue similar instructions to the proper authorities in Italy. In health visits to an arriving ship and in many other customary visits, where the consul's presence could be of no use such notice is not necessary.'

"In regard to this point, the visits which I understand you to mean are such visits as are made where the search of a merchant vessel, for. fiscal purposes, is instituted by the local authorities in the ports of either party.

"It is in regard to these visits that you suggest that the consul of the nation whose flag the vessel bears shall be notified of the intended visit.

"I have the honor to say that the suggestion seems a very suitable one, and that the proper instructions will be given to the collectors of customs in the ports of the United States to comply with the request of the Italian Government, with the understanding that reciprocal proceedings will be adopted by that Government.

"With what may seem to you extreme caution I am to inform you that the assurances given in this letter are only assurances which this Department makes for itself, and cannot be taken as constituting a part of a consular treaty for modifying its provisions.

"I have no hesitation in saying that the words 'infamous punishments' (peines infamantes) contained in paragraph 8, Article II, of the convention of March 23, 1868, are to be understood as applying to the reciprocal description of punishment for crimes prevailing in Italy just as it is expressed in the text of the Italian Code.

"This opinion of the Department, however, must not be understood as legally modifying the language of the convention."

Mr. Seward, Sec. of State, to Mr. Cerruti, Sept. 15, 1868. MSS. Notes. Italy.
This opinion is virtually embodied in a treaty for this purpose proclaimed
May 11, 1869.

Under the convention of 1868, a person may be surrendered for the crime of murder committed before the making of the convention.

In re Giacomo, 12 Blatch., 391.

The liability of the government of the Two Sicilies for the spoliations directed by Murat when King of Naples has been elsewhere incidentally noticed. See supra, §§ 5, 137; infra, §§ 236, 317. This liability was ineffectually pressed on the government of the Two Sicilies by Mr. Pinkney in 1816. The question remained open until the first session of the Twenty-first Congress, when President Jackson, in his opening message, said:

"Our demands upon the Government of the Two Sicilies are of a peculiar nature. The injuries on which they are founded are not denied, nor are the atrocity and perfidy under which those injuries were perpetrated attempted to be extenuated. The sole ground on which indemnity has been refused is the alleged illegality of the tenure by which the monarch who made the seizures held his crown. This defense, always unfounded in any principle of the law of nations, now universally abandoned, even by those powers upon whom the responsibility for acts of past rulers bore the most heavily, will unquestionably be given up by his Sicilian Majesty, whose counsels will receive an impulse from that high sense of honor and regard to justice which are said to characterize him; and I feel the fullest confidence that the talents of the citizen commissioned for that purpose will place before him the just claims of our injured citizens in such a light as will enable me, before your adjournment, to announce that they have been adjusted and secured."

The application under this final appeal was successful, and two years afterward the President informed Congress that the ratifications of a convention for the settlement of these claims had been duly exchanged. The act to carry this into effect was passed on the 2d of March, 1833. (See discussion detailed infra, § 236.)

"With the Papal States the United States maintained diplomatic relations for many years; but, in 1868, Congress neglected to make appropriations for the support of a mission, and the minister was withdrawn. In his annual message to Congress in 1871 President Grant said: 'I have been officially informed of the annexation of the States of the Church to the Kingdom of Italy, and the removal of the capital of that Kingdom to Rome. In conformity with the established policy of the United States, I have recognized this change.""

Mr. J. C. B. Davis, Notes, &c. As to recognition of Papal authority, see supra, $45.

As to Sicilian spoliations, see infra, §§ 228, 236.

(16) JAPAN.

§ 153.


"Mr. Edmund Roberts, a sea captain of Portsmouth, N. H., was Tamed by President Jackson his agent for the purpose of examining in the Indian Ocean the means of extending the commerce of the United States by commercial arrangements with the powers whose dominions border on those seas.' He was ordered on the 27th of January, 1832, to 'embark on board of the United States sloop-of-war the Peacock,' in which he was to be rated as captain's clerk.' On the 23d of the following July he was told to be very careful in obtaining information respecting Japan, the means of opening a communication with it, and the * value of its trade with the Dutch and Chinese,' and that when he should arrive at Canton he would probably receive further instructions. He had with him blank letters of credence, and on the 28th of October, 1832, Edward Livingston, Secretary of State, instructed him that the United States had it in contemplation to institute a separate mission to Japan,' but that if he should find the prospect favorable he might fill up one of his letters and present himself to the Emperor for the purpose of opening trade. Nothing was accomplished by this mission in that quarter.

"Again, in 1845, Alexander Everett was empowered to open negotiations with the Japanese Government, and Commodore Biddle was instructed to take the utmost care to ascertain if the ports of Japan were accessible.' The commodore did go to the Bay of Yeddo, and remained there several days. The Japanese refused to open their ports. They said, 'This has been the habit of our nation from time immemorial. In all cases of a similar kind that have occurred we have positively refused to trade. Foreigners have come to us from various quarters, but have always been received in the same way. In taking this course with regard to you, we only pursue our accustomed policy.'

"In the spring of 1849 it came to the knowledge of Commodore Geisinger, commanding the United States East India Squadron, that some American sailors were imprisoned in Japan, and Commander Glynn was dispatched to Nagasaki to liberate them. He succeeded in doing so, and on his return he laid before the President reasons why he thought it to be a favorable time for entering upon a negotiation with Japan.'

"The Dutch Government at that time had the monopoly of the foreign trade of Japan. The Dutch minister at Washington, under instructions from his Government, at this juncture, informed the Government of the United States that it was not to be supposed that there

was 'auy modification whatever of the system of separation and exclusion which was adopted more than two centuries ago by the Japanese Government, and since the establishment of which the prohibition against allowing any foreign vessel to explore the Japanese coast has been constantly in force.'


"Mr. Webster, Secretary of State, soon after the receipt of this note, instructed Commodore Aulick to proceed with a letter from President Fillmore to the Emperor of Japan to Yeddo in his flag-ship, accompanied by as many vessels of his squadron as might conveniently be employed in the service, and to deliver it to such high officers of the Emperor as might be appointed for the purpose of receiving it. The principal object of his visit was to arrange for obtaining supplies of coal, but he also received full power to negotiate and sign a treaty of amity and commerce between the United States and the Empire of Japan.' This was in June, 1851. In November, 1852, Commodore Perry was sent out with an increased naval force. 6 A copy of the general instructions given to Commodore John H. Aulick' was handed him, which he was to consider as in full force, and applicable to his command.' He suc ceeded in concluding a treaty on the 31st of March, 1854. The interesting negotiations which preceded it are detailed in the document above referred to. An account of the expedition, from the journals of Commodore Perry and officers under his command, was compiled by the Rev. Francis L. Hawks, D. D., and printed in quarto form by order of the House.

"The rights of Americans in Japan were further extended by a convention concluded at Simoda on the 17th of June, 1857; and in the following year a more extensive treaty was concluded, in which it was provided that all the provisions of the convention of 1857, and so much of the treaty of 1854 as were in conflict with the new treaty were revoked.

"In 1859 it was determined to send a Japanese embassy to the United States; and this was done in 1860. In 1864 a convention was concluded for the payment to the United States, Great Britain, France, and the Netherlands of an aggregate sum of three millions of dollars, 'this sum to include all claims of whatever nature, for past aggressions on the part of Nagato, whether indemnities, ransom for Simonoseki, or expenses entailed by the operations of the allied squadrons.' The circumstances which led to the conclusion of this treaty were thus stated by Mr. Fish in a report to the President: The Japanese indemnity fund comes from payments made by the Japanese Government under the convention of October 22, 1864, of which a copy is herewith inclosed. It appears that Prince Choshu, the ruler over the provinces of Sueoo and Nagato, having possession of the Japanese fortifications which command the Straits of Simonoseki, and also having with him the person of the Mikado, refused to recognize the validity of the treaties concluded by the Tycoon with the foreign powers, and closed the passage to the inland sea. At the request of the Tycoon's government the forces of the United States, Great Britain, France, and the Netherlands, in those waters, jointly proceeded to open the straits by force. On the 4th, 6th, 7th, and 8th days of September, 1864, they destroyed the batterries commanding the straits, blew up the magazines, threw the shot and shell into the sea, carried away seventy cannon, and obtained an unconditional surrender from Prince Choshu, with an agreement to pay the expenses of the expedition. The ratification of the treaties by the Mikado, and the firm establishment of the foreign policy of the Tycoon also, speedily followed.

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