Obrázky stránek
PDF
ePub

Payment of duties to insurgents; Mazatlan case.

"I transmit a copy of a note of yesterday, addressed to this Department by Sir Edward Thornton, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary accredited to this Government, requesting that you may be authorized to use your good offices towards preventing the exaction by the Mexican Government of duties on goods imported by Messrs. Kelly, at Mazatlan, which duties had previously been paid to insurgents there. You will take that course accordingly. It is difficult to understand upon what ground of equity or public law such duties can be claimed. The obligation of obedience

to a government at a particular place in a country may be regarded as suspended, at least, when its authority is usurped, and is due to the usurpers if they choose to exercise it. To require a repayment of duties in such cases is tantamount to the exaction of a penalty on the misfortune, if it may be so called, of remaining and carrying on business in a port where the authority of the government had been annulled. The pretension is analogous to that upon which vessels have been captured and condemned upon a charge of violating a blockade of a port set on foot by a proclamation only, without force to carry it into effect.

"The principle that duties once paid in a part of the territory of the country in possession of an enemy are not liable again to be paid when the enemy is expelled or withdraws, was solemnly decided by the Supreme Court of the United States in the case of Rice, 4th Wheaton, page 246.

"Since the close of the civil war in this country suits have been brought against importers for duties on merchandise paid to insurgent authorities. Those suits, however, have been discontinued, that proceeding probably having been influenced by the judgment of the Supreme Court adverted to."

Mr. Fish, Sec. of State, to Mr. Nelson, minister to Mexico, February 11, 1873,
For. Rel. 1873, I. 654.

Bluefields case.

"An insurrectionary movement, under General Reyes, broke out at Bluefields in February last, and for a time exercised actual control in the Mosquito Territory. The Detroit was promptly sent thither for the protection of American interests. After a few weeks the Reyes government renounced the conflict, giving place to the restored supremacy of Nicaragua. During the interregnum certain public dues accruing under Nicaraguan law were collected from American merchants by the authorities for the time being in effective administrative control. Upon the titular government regaining power a second payment of these dues was demanded. Controversy arose touching the validity of the original payment of the H. Doc. 551-4

debt to the de facto regent of the territory. An arrangement was effected in April last by the United States minister and the foreign secretary of Nicaragua whereby the amounts of the duplicate payments were deposited with the British consul pending an adjustment of the matter by direct agreement between the Governments of the United States and Nicaragua. The controversy is still unsettled."

President McKinley, Annual Message, Dec. 5, 1899.

The facts in the case just referred to and the ultimate settlement of it were as follows:

February 3, 1899, General Reyes, who had lately resigned the office of governor of the department of Zelaya (the Mosquito Reservation), proclaimed at Bluefields a revolution against the titular government of President Zelaya. He took and held undisputed possession of the custom-house and other public buildings and of all the agencies of government, and from February 3 to February 25 he and his delegates exercised at Bluefields all the functions of government, including the collection of duties." At the end of February the insurrection collapsed, and the Nicaraguan Government, after the reestablishment of its authority at Bluefields, demanded the payment to itself, by the merchants, of the amounts of duty which they had paid to the insurgent authorities during the period of their de facto control. Against this demand the American merchants remonstrated. The Government of the United States, on receiving the remonstrance, stated (1) that it would not support, as against the demand of Nicaragua, any Americans, if such there were, who had aided or abetted the insurrection, but (2) that Americans who had paid "under duress of person or property, or under intimidations amounting to coercion, are entitled, if second payments are demanded by the Nicaraguan Government, to make such payments under protest," and that if any Americans had made a second payment without protest, because they were required by Nicaragua so to do, they would be considered as having paid under protest. Prior to the receipt of this instruction, however, Mr. Merry, the minister of the United States, and the commander of the U. S. S. Detroit, then at Bluefields, cabled a suggestion that second payments be refused, as the revolutionary government certainly was de facto, and such action was necessary to the maintenance of American interests and influence; and on April 29, 1899, an

a Mr. Merry, minister to Nicaragua, to Mr. Hay, Secretary of State, April 23, 1899, For. Rel. 1899, 569.

Mr. Hay, Secretary of State, to Mr. Merry, minister to Nicaragua, April 17, 1899, For. Rel. 1899, 566.

c For. Rel. 1899, 569.

agreement was concluded by Mr. Merry and Mr. Sanson, Nicaraguan minister for foreign affairs, under which it was arranged that the money demanded by Nicaragua should be deposited in the British consulate pending the decision of the controversy. Meanwhile the Nicaraguan authorities were to raise the embargo which they had previously placed on certain merchandise in order to compel the owners to comply with their demands." This arrangement was approved by the United States,' and the British consul accepted the trust. The amount in dispute, which was claimed from five American firms, was $19,673.33, Nicaraguan currency.

Subsequently the Department of State received the sworn statements of the American merchants, which apparently showed (1) that they were not in any wise accomplices in the Reyes movement; (2) that during the period of February 3-23 the merchants did not pay current dues in cash, but gave bonds for them, and that the money actually paid was the amount due on bonds which then matured for duties levied in December, 1898, and January, 1899, the payments being made to the agent of the titular government, who held the bonds and who was continued in office by General Reyes; (3) that the bonds bore a penalty of 5 per cent a month for nonpayment, and that payment was demanded under threat of suspension of importations; and (4) that from February 3 to February 25 General Reyes was in full control and exercise of all governmental agencies, civil and military, in the district. Under these circumstances the United States expressed the opinion that to exact a second payment would be "an act of international injustice," and asked the assent of the Nicaraguan Government to the return of the money by the British consul to the depositors.d

Subsequently the Nicaraguan Government sought to bring the mater before its judicial tribunals, and to require the merchants to establish before those tribunals their "excuse" for their "unwarranted payments." To this course the United States objected, on the ground that the question had become a diplomatic one. The two Governments failed to agree on the question whether the payments were made under compulsion to a de facto authority, but the money was at length returned to the American merchants with the assent of Nicaragua.

a For. Rel. 1899, 571, 576-578.

Mr. Hay, Secretary of State, to Mr. Merry, telegram, May 6, 1899, For. Rel. 1899, 579.

For. Rel. 1899, 580-581.

d Mr. Hay, Secretary of State, to Mr. Merry, minister to Nicaragua, July 26, 1899, For. Rel. 1900, 803.

For. Rel. 1900, 803-824. See also President McKinley's annual message, December 3, 1900.

effects and limitations.

(3) THE CONFEDERATE STATES.

$ 22.

"It is very certain that the Confederate government was never acknowledged by the United States as a de facto govDe facto supremacy; ernment in this sense [i. e., as 'a government de facto in the most absolute sense,' such as that of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector]. Nor was it acknowledged as such by other powers. No treaty was made by it with any civilized state. No obligations of a national character were created by it, binding after its dissolution, on the States which it represented, or on the national government. From a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States.

* * *

And

"The central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance that its authority did not originate in lawful acts of regular war; but it was not, on that account, less actual or less supreme. we think that it must be classed among the governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be the enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government can not be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the reestablishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible. It was by this government, exercising its power throughout an immense territory, that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. They must be regarded, therefore, as a currency imposed on the community by irresistible force. It seems to follow as a necessary consequence from the actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that

* * *

this currency must be considered in courts of law in the same light as if it had been issued by a foreign government temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency can not be regarded for that reason only as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We can not doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligations."

Thorington r. Smith (1868), 8 Wall. 1, 9-11, holding that a contract for the payment of Confederate States treasury notes, made during the civil war, between persons residing within those States, could be enforced in the United States courts, the contract having been made on a sale of property in the usual course of business, and not for the purpose of giving currency to the notes or otherwise aiding the Confederate cause.

In the case of Hanauer r. Woodruff, 15 Wall. 448, the court, referring to the case of Thorington v. Smith, said: "It would have been a cruel and oppressive judgment if all the transactions of the many millions of people composing the inhabitants of the insurrectionary States for the several years of the war, had been held tainted because of the use of this forced currency [Confederate notes], when those transactions were not made with reference to the insurrectionary government." This is quoted in Baldy v. Hunter, 171 U. S. 388, 397, from the opinion of the court in the Confederate Note Case, 19 Wall. 548, in which parol evidence was held to be admissible to prove that the word "dollars" in a contract made during the civil war in fact meant Confederate notes.

A decree, or a judgment, when rendered upon a contract payable in Confederate treasury notes, should be for a sum equal to the value of those notes, not in the gold coin, but in the legal tender currency of the United States at the time when and place where they were payable. (Bissell v. Heyward, 96 U. S. 580.)

"In Delmas v. Insurance Co., 14 Wall. 661, 665, upon writ of error to the supreme court of Louisiana, one of the questions presented was whether a judgment, which was otherwise conceded to be a valid prior lien for the party in whose favor it was rendered, was void because the consideration of the contract on which the judgment was rendered was Confederate money. This court said: "This court has decided, in the case of Thorington v. Smith, 8 Wall. 1, that a contract was not void because payable in Confederate money, and notwithstanding the apparent division of opinion on this question in the case of Hanauer v. Woodruff, 10 Wall. 482, we are of the opinion that on the general principle announced in Thorington v. Smith, the notes of the Confederacy actually circulating as money at the time the contract was made may constitute a valid consideration for such contract.' So, in Planters' Bank . Union Bank, 16 Wall. 483, 499, it was a question whether Confederate treasury notes had and received by defendants for the use of the plaintiffs were a sufficient

« PředchozíPokračovat »