ship lying in a foreign port are not like a party of isolated strangers travelling in a foreign country, but are a body of organized men, governed internally by laws of their country, enrolled under the authority, and placed under a master or captain who has a standing and recognition by law. The French Government and courts holding this view find a distinction between acts and offences connected with the internal order and discipline of the ship, when the peace of the port is not disturbed, and other acts which have an external effect. The former they leave to the laws of the state to which the ship belongs; the latter they regard as subject to the jurisdiction concerned.

"The general rendering of the reciprocal conventions upon the matter is that consular officers shall have exclusive charge of the internal order of the merchant vessels of their nations. The local authorities are not in any way to interfere except in cases where the differences on board ship are of a nature to disturb the peace and public order, in port or on shore, or where persons other than the officers and crew of the vessel are parties to the disturbance. Otherwise the local authorities confine themselves to the rendering of forcible assistance if required by the consular authorities."1

Apart from acts affecting their internal order and discipline and not disturbing the peace of the port, merchant vessels, as a rule, enjoy no exemption from the local jurisdiction. It is, therefore, generally laid down that they cannot grant asylum."2

Certain cases in which opposite ground was taken, especially as to passengers in transit, are herewith mentioned as matters of interest and information. The case of Sotelo is one of interest and is given by Moore as follows:

"In 1840 the French packet-boat L'Océan, which made regular voyages between Marseilles and the coast of Spain and

1 Moore's "Digest," vol. II, p. 303.

2 Moore's "Digest," vol. II, p. 855.

Gibraltar, received on board, at her anchorage at Valencia, M. Sotelo, a Spanish ex-minister who was under prosecution for political offences. The vessel, having put to sea without knowledge of the number and personality of the passengers who had embarked, entered the port of Alicante, where, during the customs and police inspection, M. Sotelo was recognized, seized, taken ashore, and imprisoned. The captain of L'Océan protested against what he described as a violation of his flag and in vain demanded that his passenger be set at liberty, invoking at the same time the right of asylum and the principle of extraterritoriality.

"Diplomatic communications on the subject which were exchanged between the governments of France and Spain established it in the clearest manner that the conduct of the authorities of Alicante was above reproach; that no injury was done to the flag, since the acts in question pertained to an ordinary merchant ship and to a high measure of police executed inside the port; that M. Sotelo, surreptitiously embarked at Valencia, a Spanish port, could have been regularly seized and arrested on L'Océan at another port of the same country; and, finally, that the fact that she had been on the high seas a certain time before entering Alicante could not alter the nature of the act done at the place of departure and proved at the place of arrival, under the dominion of the same laws and of the same territorial legislation."1

"The case of Gámez was that of a political fugitive from Nicaragua who voluntarily took passage at San José de Guatemala for Punta Arenas, Costa Rica, on board the Pacific mail steamship Honduras, knowing that the vessel would enter en route the port of San Juan del Sur, Nicaragua. Upon learning the fact of his being on board this steamer, the government of Nicaragua ordered the commandant of the port of San Juan del Sur, Nicaragua, to arrest Gámez upon the arrival of the Honduras. When the Honduras reached San Juan the 1 Moore's "Digest," vol. II, p. 856.

authorities of that port requested the captain of the steamer to deliver up Mr. Gámez, which he declined to do, and set sail without proper clearance papers. Of this case Mr. Bayard, the secretary of state, says: 'It is clear that Mr. Gámez voluntarily entered the jurisdiction of a country whose laws he had violated.'

"Under the circumstances, it was plainly the duty of the captain of the Honduras to deliver him up to the local authorities upon their request.

"It may be safely affirmed that when a merchant vessel of any 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

"In the Barrundia case the facts were as follows: General Barrundia, an ex-minister of war of Guatemala, had been attempting for some time to incite an insurrection in Guatemala from his temporary residence within the Mexican border, Guatemala being at war with Salvador at the time. When, upon complaint of Guatemala, the government of Mexico required Barrundia to leave the borders of Guatemala, he proceeded with two of his followers to Acapulco, a Mexican port, and embarked on board an American mail-steamer ostensibly for Panama, but with reasonable certainty for Salvador, to join the Salvadoran forces against Guatemala. Upon reaching a Guatemalan port, Champerico, his arrest was determined upon by the Guatemalan authorities, but the master of the mail-steamer declined to give him up without the written 1 Moore's "Digest," vol. II, p. 868.

authority of the American minister resident in Guatemala City. Upon arrival at San José, the second Guatemalan port of call, the letter of the minister was brought on board by the arresting force, which advised the master to give Barrundia up to the Guatemalan officials, stating that the government had promised that his life would be spared. The arrest was then permitted, but Barrundia, resisting arrest with firearms, was killed on board the steamer by the officials attempting arrest. The American minister was removed by the government of the United States for authorizing the arrest, and the senior naval officer of the United States in port, commanding the U. S. S. Ranger, was relieved from his command for not offering an unsolicited asylum to Barrundia on board of his vessel.

"The Guatemalan Government desired the arrest of Barrundia both for common crimes and as an enemy of the country within its borders. The arrest was desired as a matter of selfpreservation, as Barrundia was on his way to wage war from the southern border, as he already had attempted to do upon the northern border.

"It can hardly be claimed that Barrundia possessed immunity from arrest because he was on board of a merchant vessel carrying the American flag, as there is no foundation in international law for this position. As to offering an unsolicited asylum on board the Ranger, it is needless to say that the position of both the State and Navy Departments is in opposition to such voluntary action. The reason given for claiming immunity from arrest under the circumstances is that an exceptional rule should be adopted or usage acknowledged to exist in Spanish-American states which is in violation of their rights as sovereign states. Secretary Gresham's letter of December 30, 1893, must be conceded to give the final and authoritative statement of our policy in the matter. In the paragraph that is applicable to the Barrundia case he states as follows:

"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 offence 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 offence 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 operations 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.'" 1

1 Moore's "Digest," vol. II, p. 881.