THE CASE OF THE CAROLINE [§ 66 Again, the foreign State within whose territory the hostile operations were in progress, lacked the power at the time to protect its neighbor by removing the source of danger. Thus, the British force did in one sense that which the United States itself would have done, had it possessed the means and disposition to perform its duty. Finally, there was instant necessity, requiring immediate action. It was the presence of all of these circumstances which combined to justify the British plea.2 Great Britain, 1893, the former State sought justification for its conduct in preventing the killing of seals in Bering Sea by foreign vessels, on grounds of self-defense. This contention was successfully met by British counsel by showing to the satisfaction of the Court that what the United States sought to defend was an interest rather than a right of property recognized as such by international law. See oral argument of Mr. Carter in behalf of the United States, Fur Seal Arbitration, Proceedings, XII, 101-102, 246-249; oral argument of Sir Charles Russell, id., XIII, 298-300, 301–308. 1 Declared Sir Charles Russell in the course of his oral argument in the Fur Seal Arbitration: "The occasions for acts of self-defence, or self-preservation, are occasions of emergency, sudden emergency-occasions when there is no time (to use the expressive language of an eminent statesman of the United States, to which I shall refer), — for deliberation, no time for contrivance, no time for warning, no time for diplomatic expostulation. That is the only idea at the bottom of all those exceptional acts of self-defence or self-preservation." Fur Seal Arbitration, Proceedings, XIII, 299. * Hall, Higgins' 7 ed., § 84. On grounds of self-defense the United States, while at war with Great Britain, invaded, in 1814, West Florida, which was then Spanish territory. Moore, Dig., II, 402, and documents there cited. In 1818, by reason of the failure of Spanish authorities to check incursions of Spanish Indians into American territory, General Jackson invaded West Florida and occupied St. Marks, Pensacola and Fort Carlos de Baranças. See statement in Moore, Dig., II, 403-404, and documents there cited from American State Papers, For. Rel., IV, 496, 776-808; President Monroe, Annual Message, Nov. 16, 1818, id., 215, Moore, Dig., II, 404; Mr. Adams, Secy. of State, to Mr. Erving, American Minister to Spain, Nov. 28, 1818, American State Papers, For. Rel., IV, 539, Moore, Dig., II, 405, in which it was declared that General Jackson took possession of the places occupied by him "not in a spirit of hostility to Spain, but as a necessary measure of self-defense; giving notice that they should be restored whenever Spain should place commanders and a force there able and willing to fulfill the engagements of Spain towards the United States, or of restraining by force the Florida Indians from hostilities against their citizens." Cf. also Memorandum by J. R. Clark, Jr., Solicitor, Dept. of State, on the Right to Protect Citizens in Foreign Countries by Landing Forces, Department of State, Division of Information, Oct. 1912, p. 48. Amelia Island, Spanish territory, at the mouth of St. Mary's River near the boundary of Georgia, was taken in 1817 by adventurers, claiming to act under authority of the South American insurgent governments. Feeble effort was made by Spain to recover possession. The island was made a channel for illicit introduction of slaves into the United States, and for other purposes detrimental to the safety of the country. The United States therefore occupied the island in 1817. Said Mr. Adams, Secy. of State, to Mr. Hyde de Neuville, French Minister, Jan. 27, 1818: "When an island is occupied by a nest of pirates, harassing the commerce of the United States, they may be pursued and driven from it, by authority of the United States, even though such island were nominally under the jurisdiction of Spain, Spain not exercising over it any control." MS. Notes to For. Leg., Moore, Dig., II, 408. See also Mr. Adams, Secy. of State, to Mr. Erving, Minister to Spain, Nov. 11, (2) § 67. The Pursuit of Villa, 1916. For some time prior to March, 1916, the frontier of the United States along the lower Rio Grande was thrown into a state of constant apprehension and turmoil because of frequent and sudden incursions into American territory and depredations and murders on American soil by Mexican bandits, who took the lives and destroyed the property of American citizens, sometimes carrying such individuals across the international boundary with the booty seized. The bandit Francisco Villa early in March, of that year, after having been guilty of the barbarous slaughter of innocent American citizens in Mexican territory,2 proceeded slowly with his followers towards the American frontier. The Mexican authorities appear to have been fully cognizant of his movements, which were not, however, hindered. On the night of March 9, 1916, Villa and his band crossed the boundary and made an unprovoked attack on American soldiers and citizens at Columbus, New Mexico, thereby causing the death of sixteen Americans and the destruction by fire of the principal buildings of the town.1 3 1817, MS. Inst. United States Ministers, VIII, 169, Moore, Dig., II, 406; President Monroe, Annual Message, Dec. 2, 1817, American State Papers, For. Rel., IV, 130, Moore, Dig., II, 407. 1 The language employed in the text is substantially that of Mr. Lansing, Secy. of State, in a communication to the Secy. of Foreign Relations of the de facto Government of Mexico, June 20, 1916, Am. J., X, Supp., 211, 212, where he added: "American garrisons have been attacked at night, American soldiers killed and their equipment and horses stolen; American ranches have been raided, property stolen and destroyed, and American trains wrecked and plundered. The attacks on Brownsville, Red House Ferry, Progreso Post Office, and Las Peladas, all occurring during September last, are typical. In these attacks on American territory, Carrancista adherents, and even Carrancista soldiers took part in the looting, burning and killing. Not only were these murders characterized by ruthless brutality, but uncivilized acts of mutilation were perpetrated. Representations were made to General Carranza and he was emphatically requested to stop these reprehensible acts in a section which he has long claimed to be under the complete domination of his authority. Notwithstanding these representations and the promise of General Nafarrete to prevent attacks along the international boundary, in the following month of October a passenger train was wrecked by bandits and several persons killed seven miles north of Brownsville, and an attack was made upon United States troops at the same place several days later. Since these attacks leaders of the bandits well known both to Mexican civil and military authorities, as well as to American officers, have been enjoying with impunity the liberty of the towns of northern Mexico. So far has the indifference of the de facto government to these atrocities gone that some of these leaders, as I am advised, have received not only the protection of that government, but encouragement and aid as well." 2 Id., 214. 3 Id. See telegram of Mr. Polk, Acting Secy. of State, to all American consular officers in Mexico, and to Mr. Parker at Mexico City, March 14, 1916, Am. J., X, Supp., 184. THE PURSUIT OF VILLA, 1916 [$ 67 Thereupon, the marauders were driven back across the border by American cavalry, and subsequently, as soon as a sufficient force could be collected, were pursued into Mexico by an American military force in the effort to capture or destroy them.1 On March 10, the Mexican authorities proposed to the Government of the United States a plan permitting Mexican forces to enter American territory in pursuit of bandits, and acknowledging a reciprocal right to American forces to cross into Mexican territory "if the raid effected at Columbus should unfortunately be repeated at any other point of the border." 2 In accepting this proposal on March 13,3 the Department of State was under the impression that the Mexican authorities consented to the punitive expedition against Villa.1 Those authorities denied, however, that they had yielded consent, and demanded withdrawal of the American force. They also thereupon suspended negotiations relative to terms of the agreement for the reciprocal passage of troops across the border. In the meantime the United States 1 Cf. telegram of Mr. Polk, Acting Secy. of State, to all American consular officers in Mexico, and to Mr. Parker at Mexico City, March 14, 1916, Am. J., X, Supp., 184; also communication of Mr. Lansing, of June 20, above cited, id., 211, 214, where it was said: "Without coöperation or assistance in the field on the part of the de facto government, despite repeated requests by the United States, and without apparent recognition on its part of the desirability of putting an end to the systematic raids, or of punishing the chief perpetrators of the crimes committed, because they menaced the good relations of the two countries, American forces pursued the lawless bands as far as Parral, where the pursuit was halted by the hostility of Mexicans, presumed to be loyal to the de facto government, who arrayed themselves on the side of outlawry and became in effect the protectors of Villa and his band." 2 Telegram of Mr. Silliman, American Consul at Guadalajara, to Mr. Lansing, Secy. of State, March 10, 1916, Am. J., X, Supp., 181. 3 Mr. Lansing, Secy. of State, to Mr. Silliman, American Consul, telegram, March 13, 1916, id., 182. Mr. Polk, Acting Secy. of State, to Mr. Arredondo, Confidential Agent of the de facto Mexican Government, March 19, 1916, id., 186. 5 Mr. Arredondo to Mr. Polk, March 18, 1916, id., 185; same to Mr. Lansing, April 13, 1916, id., 192. In the course of his note of June 20, 1916, to the Foreign Secretary of the de facto Mexican Government, Mr. Lansing declared: "It is admitted that American troops have crossed the international boundary in hot pursuit of the Columbus raiders and without notice to or the consent of your Government, but the several protestations on the part of this Government by the President, by this department, and by other American authorities, that the object of the expedition was to capture, destroy, or completely disperse the Villa bands of outlaws or to turn this duty over to the Mexican authorities when assured that it would be effectively fulfilled, have been carried out in good faith by the United States." Id., 211, 220-221. Mr. Arredondo to Mr. Lansing, April 13, 1916, id., 192. " Id. In the course of his note of June 20, 1916, Mr. Lansing declared: "It was General Carranza who suspended through your note of April 12th all discussions and negotiations for an agreement along the lines of the protocols between the United States and Mexico concluded during the period 18821896, under which the two countries had so successfully restored peaceful had given definite assurance that the object of the punitive expedition was merely to eliminate the marauders, and that it would not trench upon the sovereignty of Mexico or ripen into intervention.1 Conferences were, however, held between the American and Mexican military authorities at the border with a view to solving the problem. These proved abortive. While they were in progress at El Paso, an attack was made on the night of May 5, by a band of Mexicans at Glen Springs, Texas, about twenty miles north of the border, resulting in the killing of American soldiers and civilians, the burning and sacking of property, and the carrying off of two Americans as prisoners.3 On May 10, another body of American troops crossed the border, penetrating 68 miles into Mexican territory in pursuit of the marauders, but recrossing into Texas, on May 22. On that date Mr. Aguilar, the Mexican Foreign Secretary, addressed to Mr. Lansing a note which, in "discourteous tone and temper", impugned the good faith of the United States, intimated that its design was to extend its sovereignty over Mexican territory, and demanded a definition of American political intentions as well as a withdrawal of the punitive expedition. In his response repudiating such designs on the part of the United States, Secretary Lansing adverted to the deplorable conditions which gave rise to the expedition and the opposition which it had encountered from Mexican authorities, and declared that in view of the increasing menace to American territory from Mexican bandits through the inactivity or encouragement of the Carranza forces, it was unreasonable to expect the United States to withdraw its troops, or to refrain from sending others into Mexico when they offered the only efficient means of protecting American life and property.5 Moreover, he declared that the existing in conditions on their common boundary." Am. J., X, Supp., 215. See, for example, the agreement of June 4, 1896, Malloy's Treaties, I, 1177. 1 See, for example, statement by President Wilson, March 25, 1916, Am. J., X, Supp., 191; also telegram of Mr. Lansing, to Mr. Rodgers, Special Representative, April 14, 1916, id., 196; Resolution adopted by the Senate March 17, 1916, Cong. Record, LIII, 4274. 2 It should be observed that these conferences were productive of a memorandum ad referendum regarding the terms of withdrawal of the American troops. Gen. Carranza refused to ratify the arrangement because he was dissatisfied with the conditions imposed upon the Mexican Government. Cf. note of Mr. Lansing of June 20, 1916, Am. J., X. Supp., 211, 216. Gen. Carranza apparently demanded the unconditional withdrawal of the troops, objecting to the claim of the United States to suspend it if any further incident might happen which should lead it to believe that Mexico was unable to protect the frontier as agreed upon. See note of Mr. Aguilar of May 22, 1916, id., 197, 200. 3 Note of Mr. Lansing of June 20, 1916, id., 211, 217–218. 4 Am. J., X, Supp., 197. See communication to the Mexican Foreign Secretary, June 20, 1916, id., THE PURSUIT OF VILLA, 1916 [$ 67 ability of the Mexican Government to check marauding attacks served to make stronger the obligation of the United States to prevent them. On June 21, the American expedition was in conflict with a Mexican force which attacked it.2 After further diplomatic negotiations in July, the problem was referred to a Joint Commission representative of the two Governments.3 In November, 1916, the commissioners signed a protocol providing for the withdrawal of the American troops, but which was not ratified by General Carranza. The Commission adjourned its meetings in January, 1917, and the same month orders were issued for the withdrawal of the troops. But Villa remained uncaptured. It is believed that conditions justified the pursuit of Villa by an American force. The argument of Secretary Lansing was based upon facts which offered no alternative. At no time did the United States admit that it lacked the right under the circum 211, in the course of which he said: "The United States Government cannot and will not allow bands of lawless men to establish themselves upon its borders with liberty to invade and plunder American territory with impunity and, when pursued, to seek safety across the Rio Grande, relying upon the plea of their Government that the integrity of the soil of the Mexican Republic must not be invaded," 223. In justification of the pursuit into Mexican territory in 1836, of predatory Indians, plundering and invading American soil from the Mexican border, Mr. Forsyth, Secy. of State, in a communication to Mr. Ellis, Minister to Mexico, Dec. 10, 1836, said in part: "You will find no difficulty in showing to the Mexican Government that it [the right] rests upon principles of the law of nations, entirely distinct from those on which war is justified upon the immutable principles of self-defense- upon the principles which justify decisive measures of precaution to prevent irreparable evil to our own or to a neighboring people." Brit. and For. State Pap., XXVI, 1419, Moore, Dig., II, 420. See, also, statement in Moore, Dig., II, 418-420, citing Brit. and For. Pap., XXV, 1089, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099; Mr. Evarts, Secy. of State, to Mr. Foster, Minister to Mexico, Aug. 13, 1878, For. Rel. 1878, 572, Moore, Dig., II, 425. 1 Am. J., X, Supp., 225. -- In this connection see "Mexico and the United States", by George A. Finch, Am. J., XI, 399. It will be recalled that the President, in June, 1916, summoned the entire National Guard of the United States to the Mexican border in order to protect American territory from invasion. 3 The American Commissioners were Messrs. George Gray, Franklin K. Lane, and John R. Mott. Prof. Leo S. Rowe was Secretary of the American Commission. The Mexican Commissioners were Messrs. Luis Cabrera, Ignacio Bonillas, and Alberto J. Pani. On signing the protocol the American Commissioners informed their Mexican colleagues that, as a matter of national necessity, the policy of the Government must be to reserve the right to pursue marauders coming from Mexico into the United States, so long as conditions in northern Mexico were in their existing abnormal state. It was added that such a pursuit should not, however, be regarded by Mexico as in any way hostile to the Carranza Government, for those marauders were the common enemies of the two countries. See Statement issued by the Commission Nov. 24, 1916, New York Times, Nov. 25, 1916, p. 1. |