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time of the subversion of the monarchy and of the election held in May, 1894, for members of the constitutional convention. Leaving out of view for the moment other tests of their bona fide American citizenship or their right to American protection, it is important to ascertain whether they took the oath required for participation in that election or did actually participate in the same. You are desired to inform yourself accurately on this point and communicate the result to the Department."
Mr. Chl, Acting Sec. of State, to Mr. Willis, min. to Hawaii, May 14, 1895,
For. Rel. 1895, II. 854, 855.
“ John Mitchell was admitted, it appears, to special rights of citizenship under a provision of the new constitution of Hawaii, conferring such rights on persons who actively participated or otherwise rendered special service in the formation of the provisional government. Having thus personally taken part in the subversion of one government and the establishment of another in a foreign country, it is questionable whether he has not so completely identified himself with the government which was finally established, to have lost his right to American protection, notwithstanding he appears to have intended to reserve that right."
Mr. Uhl, Acting Sec. of State, to Mr. Willis, min. to Hawaii, May 14, 1895,
For. Rel. 1895, II. 854, 855.
of a claim against the Hawaiian Government growing out of his
tion of Intention, supra, § 387.
4. UNNEUTRAL CONDUCT.
Acts of hostility committed by American citizens against such as are in amity with us, being in violation of a treaty and against the public peace, are offenses against the United States when committed within the territory or jurisdiction thereof, and as such are punishable by indictment in the district or circuit courts. The high scas being within the jurisdiction of the district and circuit courts, such an offense committed thereon is cognizable by said courts. Where such an offense is committed out of the jurisdiction of the United States the offenders must be dealt with abroad, and, after proclamation by the President, will have forfeited all protection from the American Government.
Bradford, At. Gen., 1795, 1 Op. 57. See, generally, as to the effect of
claimants' misconduct, infra, SS 975–977.
The British Government acquiesced in the execution of Arbuthnot and Ambrister by General Jackson in Florida in 1818, on the ground that, by going to Florida and entering into the service of parties engaged in attacks on a friendly power, they had forfeited the right to claim the protection of the British Government.
Schouler's list. of the United States, III. 72 et seq. Accompanying the Texan expedition to Santa Fé, when it was captured by the Mexican authorities, there were certain citizens of the United States, who, it was alleged, were not parties to the expedition so far as it was military and hostile to Mexico, but accompanied it only as traders or travellers or in other noncombatant characters, but who were nevertheless taken and held as prisoners and subjected to grave ill-treatment. It was conceded by the United States that the fact of having been found in arms, with others admitted to be armed for belligerent purposes, raised a presumption of 'hostile character; but it was maintained that this presumption might be rebutted, especially where the journey lay through a wild country where traders and travellers were obliged to be armed for defence. The Government of the United States, therefore, in the case of one of the persons above referred to, being satisfied of his innocence, demanded his release both on that ground as well as on the ground of his maltreatment. It was added, however, that, if the Government of Mexico insisted upon detaining any of the persons in question for further inquiry, they should while so detained be permitted to enjoy to the fullest extent the rights of prisoners of war, and that, in case an assurance of such treatment should not be given, official intercourse with the Mexican Government should be suspended.
Mr. Webster, Sec. of State, to Mr. Thompson, min. to Mexico, April 15,
1842, 6 Webster's Works, 427. See, also, Mr. Webster, Sec. of State, to Mr. Ellis, min. to Mexico, Jan. 3,
1812, 6 Webster's Works, 122. A citizen of the United States who in a foreign country joins as a com
batant a hostile expedition there set on foot against another country, and is captured by the authorities of the latter within its jurisdiction, forfeits his claim to the protection of his own government. (Mr. Webster, Sec. of State, to Mr. Peyton, Jan. 6, 1812, 32 MS. Dom. Let. 110. An extract from this letter may be found in 6 Webster's Works, 425.)
By a proclamation issued in 1819, President Taylor, referring to the report that an armed expedition was about to be fitted out in the United States for the invasion of Cuba or of some of the provinces of Mexico, warned - all citizens of the United States who shall connect themselves with an enterprise so grossly in violation of our laws and our treaty obligations that they will thereby subject themselves to the heavy penalties denounced against them by our acts of Congress and will forfeit their claim to the protection of their country. No such persons," he added, “must expect the interference of this Government in any form on their behalf, no matter to what extremities they may be reduced in consequence of their conduct."
Proclamation of President Taylor, Aug. 11, 1819, Richardson's Messages,
In a proclamation issued in 1851, President Fillmore declared that there was reason to believe that a military expedition, instigated and set on foot chiefly by foreigners, was about to be fitted out in the United States for the invasion of Cuba; that such expeditions could be regarded only as adventures for plunder and robbery; and that they were, besides, expressly prohibited by the statutes of the United States. He therefore warned “all persons " who should “connect themselves with any such enterprise or expedition, in violation of our laws and national obligations," that they would " thereby subject themselves to the heavy penalties denounced against such offences, and will forfeit their claim to the protection of this Government or any interference in their behalf, no matter to what extremities they may be reduced in consequence of their illegal conduct.”
Proclamation of President Fillmore, April 25, 1851, H. Ex. Doc. 2, 32
Cong., 1 sess., part 1, 27; Richardson's Messages, V. 111.
“Although Captain Clark individually may have been an American citizen, his captures, while in command of an Uruguay privateer, were Uruguay captures; and any claim to be preferred against Colombia, on account of the spoliations committed by the Venezuelan navy, must be preferred by Uruguay and can not possibly be made or enforced by the United States. That Clark's family resided in the United States, that he returned to the country of his birth and died there, does not change the aspect of the case, which is not determined by the nativity of the individual, but by the flag of the belligerent.”
Opinion of Llassaurek, U. S. Comr., for the Commission, in the cases of
the Jedea and Good Return: ('onvention between the United States
and Ecuador, Nov. 2.5, 1862, Moore, Int. Arbitrations, III, 2729, 2736. See, to the same effect, opinion of Sir Frederick Bruce, umpire, U. S. and
Colombian (laims Commission, convention of Feb. 10, 1864, Moore, Int. Arbitrations, III. 2710–2713; and opinion of Findlay, U. S. Comr., for the Commission, convention between the United States and Venezuela, Dec. 5, 1885, Moore, Int. Arbitrations, III. 2743–2751.
A citizen of the United States who voluntarily enlists in a foreign army has no claim on this Government to intervene to procure his discharge.
Mr. Fish, Sec. of State, to Mr. Bliss, Nov. 4, 1872, MS. Inst. Mex. XVIII.
For cases on this subject, see Moore, Int. Arbitrations, III. 2467-8, 2752.
ligerent can not claim the interposition of his own Government for
“A party whose goods are confiscated as tainted with insurgency can not claim compensation if he was himself implicated in such insurgency."
Mr. Bayard, Sec. of State, to Mr. Muruaga, Span, min., Dec. 3, 1886, For.
Rel. 1887, 101.), 1019.
It was reported in 1893 that Dr. Charles E. Boynton, a citizen of the United States, had been arrested at Rio de Janeiro and was in danger of execution on account of some act committed during the insurrection then existing in that quarter. The report proved to be erroneous. The facts appear to be that Dr. Boynton attempted, in the interest of the Brazilian Government, to use a torpedo against the revolted vessels of the Brazilian navy, employing for that purpose a small tug, over which he unlawfully hoisted the British flag. The commander of the British naval forces, seeing the British flag so used, seized the tug, but, finding that its master was an American citizen, turned him over to Captain Picking, of the U. S. S. Charleston, who reported the matter and was directed to hold Dr. Boynton till further orders. Captain Picking was afterwards directed to send him home, on sufficient funds being provided to pay his passage.
Mr. Adee, Second Assist. Sec. of State, to Miss Boynton, Oct. 21, 1893,
194 MS. Dom. Let. 76.
5. FUGITIVES FROM JUSTICE.
J. H. Mears, in view of the fact that he participated “ in the enormous fraud perpetrated by Gardiner and others," and in view of other circumstances of his case, “ ought not to have expected any interference in his behalf by this Government on account of his alleged maltreatment by Mexico, for he certainly has no claim to it. It is not over criminals or fugitives from justice in foreign countries, though they may have been born or naturalized in the United States, that this Government is bound to throw the shield of its protection whenever they see fit to call on it to do so. It is to our citizens abroad for honest purposes, who still look to the United States as their home to which they intend to return, or in other words, to those who are still under allegiance to this Government, or have a domicil here, that our Government extends its care, and will offer, when occasion requires, its guardian protection."
Mr. Marcy, Sec. of State, to Mr. Gadsden, min. to Mexico, No. 54, Oct. 22,
1855, MS. Inst. Mexico, XVII. 54. As to the case of Mears and
“As a general principle, a fugitive from justice can not appeal for protection to the justice from which he flies. Thus, it is a familiar rule that a convict can not take out a writ of error, when a fugitive from justice. It might therefore be said that until Winslow shall have submitted himself to the justice of his native land, the laws of which he is charged with violating, he is not in a position to appeal to their protection against the justice of a foreign land. A passport, which is the primary form and evidence of protection given to a citizen by his government, has frequently been denied to persons residing in a foreign land, in contumacy or violation of the laws of the United States. Were . Winslow merely an applicant for a passport, the fact that he is a contumacious fugitive from the justice of Massachusetts would be a suflicient reason for denying to him that evidence of the reciprocal duty of the law-abiding citizen and obligation of his Government. It does not, however, appear necessary to rest a conclusion in the present case upon this argument."
Mr. Bayard, Sec. of State, to Mr. Hanna, min. to Arg. Rep., No. 22, June
25, 1886, MS. Inst. Arg. Rep. XVI. 385.
ently Ezra D. Winslow, for the intervention of the United States in
in the Argentine Republic animo manendi.
Rice, 130 Mass. 231.)
6. QUESTION OF MATRICULATION.
“ The matriculation of foreigners as defined in article 21 of this chapter [iii., of the law of Salvador, of Sept. 27, 1886] is an inscription of their names and nationalities in a book kept for that purpose in the department for foreign affairs. In order to be so registered, they must produce to that department certain evidence, prescribed by law, of their right to the national status claimed. If the requisite evidence be exhibited, the name and nationality of the applicant are registered, and in proof of this, he is given a certificate of matriculation, which is, however, only prima facie evidence of his national status. But without this certificate no authority or public