that General Gaines's troops will

his own 'on this capital point, not take a position on any ground known to be beyond the limits of the United States; and as a natural consequence . . . that such position can in no case be on ground previously possessed by Mexico, and, of course, within its known limits.'"'

On May 3d, Mr. Forsyth replied: "Except in case of necessity, General Gaines will not occupy ground not indisputably within the limits of the United States. In case of necessity, whether the possession of the ground he may occupy is now or has heretofore been claimed by Mexico cannot be made a question by that officer; he will take it to perform his duties to the United States, and to fulfil the obligations of the United States to Mexico. The just and friendly purpose for which he does occupy it (if he should do so), being beforehand explained to Mexico, it is expected will prevent either belief or suspicion of any hostile or equivocal design on his part. It is not intended to be the assertion of a right of property or possession.'

On May 9th, however, Mr. Gorostiza protested against the order authorizing General Gaines, in case of necessity, to advance his troops to Nacogdoches, which his instructions declared to be within the limits claimed by the United States, but which the Mexican Government regarded as involving a possible violation of Mexican territory.

In a later communication, dated December 10, 1836, to Mr. Ellis, our Minister to Mexico, Mr. Forsyth stated his view of the principle of international law bearing on this subject, as follows:

You will find no difficulty in showing to the Mexican Government that it rests upon principles of the law of nations, entirely distinct from those on which war is justified-upon the immutable principles of self-defence-upon the principles which justify decisive measures of precaution to prevent irreparable evil to our own or to a neighboring people.

The grossness of the error of placing it on the right of war, as also the folly of relying upon that mode of redress, you can render obvious, by supposing that hostilities were, under present circumstances on the frontier, about to begin. Our fellow-citizens, of all ages and classes, are to be exposed to massacre, their property to destruction, and the whole frontier to be laid waste by those savages Mexico was bound to control. Until these evils happen, on Mr. Gorostiza's theory, we have no right to take a position which will enable us to act with effect; and before we do act, according to our promises under Article XXXIII of the treaty, after the frontier has been desolated, we must demand redress of Mexico, wait for it to be refused, and then make war upon Mexico. We are quietly to suffer injuries we might prevent in the expectation of redress-redress from irreparable injuries from Mexico, who did not inflict them, but who was, from circumstances,

without the power to prevent, as she would be after they were inflicted, without the power to redress them. To make war upon Mexico for this involuntary failure to comply with her obligations, would be equivalent to an attempt to convert her misfortunes into crimes-her inability into guilt.

A company of Mexican rangers having pursued into Mexico a band of Indians who had made an incursion into Texas, Mr. March, Secretary of State, on February 4, 1856, wrote to Mr. Almonte, Mexican Minister, saying: "If Mexican Indians whom Mexico is bound to restrain are permitted to cross its border and commit depredations in the United States, they may be chased across the border and then punished." He also said: "If Indians whom the United States are bound to restrain shall, under the same circumstances, make a hostile incursion into Mexico, this Government will not complain if the Mexican forces who may be sent to repel them shall cross to this side of the line for that purpose, provided that in so doing they abstain from injuring the persons and property of citizens of the United States."

On January 22, 1874, Secretary of State Fish also gave it as his opinion that an incursion into the territory of Mexico for the purpose of dispersing a band of Indian marauders is, if necessary, not a violation of the law of nations.

After repeated raids by Mexicans and Indians into Texas, in a communication to General Sherman, dated June 1, 1877, Mr. McCrary, Secretary of War, gave the following instructions:

The President desires that the utmost vigilance on the part of the military forces in Texas be exercised for the suppression of these raids. It is very desirable that efforts to this end, in so far at least as they necessarily involve operations on both sides of the border, be made with the coöperation of the Mexican authorities; and you will instruct General Ord, commanding in Texas, to invite such coöperation on the part of the local Mexican authorities, and to inform them that while the President is anxious to avoid giving offense to Mexico, he is nevertheless convinced that the invasion of our territory by armed and organized bodies of thieves and robbers to prey upon our citizens should not be longer endured.

General Ord will at once notify the Mexican authorities along the Texas border, of the great desire of the President to unite with them in efforts to suppress this long-continued lawlessness. At the same time he will inform those authorities that if the Government of Mexico shall continue to neglect the duty of suppressing these outrages, that duty will devolve upon this Government, and will be performed, even if its performance should render necessary the occasional crossing of the border by our troops. You will, therefore, direct General Ord that

in case the lawless incursions continue he will be at liberty, in the use of his own discretion, when in pursuit of a band of the marauders, and when his troops are either in sight of them or upon a fresh trail, to follow them across the Rio Grande, and to overtake and punish them, as well as retake stolen property taken from our citizens and found in their hands on the Mexican side of the line.

Apparently these instructions were not wholly effective, for on August 13, 1878, Mr. Evarts, then Secretary of State, wrote to Mr. Foster, our Minister to Mexico, as follows:

The first duty of a government is to protect life and property. This is a paramount obligation. For this governments are instituted, and governments neglecting or failing to perform it become worse than useless. This duty the Government of the United States has determined to perform to the extent of its power toward its citizens on the border. It is not solicitous, it never has been, about the methods or ways in which that protection shall be accomplished, whether by formal treaty stipulation or by informal convention; whether by the action of judicial tribunals or that of military forces. Protection in fact to American lives and property is the sole point upon which the United States are tenacious. In securing it they have a right to ask the co-operation of their sister Republic. So far, the authorities of Mexico, military and civil, in the vicinity of the border appear not only to take no steps to effectively check the raids or punish the raiders, but demur and object to steps taken by the United States. . . .

I am not unmindful of the fact that, as you have repeatedly reported, there is reason to believe that the Mexican Government really desires to check these disorders. According to the views you have presented, its statesmen are believed to be sagacious and patriotic, and well disposed to comply with all international obligations. But, as you represent, they encounter, or apprehend that they may encounter, a hostile public feeling adverse to the United States, especially in these border localities, thwarting their best intentions and efforts. It is greatly to be regretted that such a state of perverted public feeling should exist. But its existence does not exonerate the Mexican Government from any obligation under international law. Still less does it relieve this Government from its duties to guard the welfare of the American people. The United States Government cannot allow marauding bands to establish themselves upon its borders with liberty to invade and plunder United States territory with impunity, and then, when pursued, to take refuge across the Rio Grande under protection of the plea of the integrity of the soil of the Mexican Republic.

An agreement with Mexico was finally reached July 29, 1882, which provided for the crossing of the frontier by the armed forces of either country in pursuit of hostile Indians.2

2 See I Malloy, pp. 1144-45. For other agreements with Mexico relating to this subject, see Ibid., 1157, 1158, 1162, 1170, 1171 and 1177.

For the correspondence pertaining to these matters, see II Moore's Digest, pp. 418 ff; I Wharton's Digest, pp. 229 ff. For further information as to Indian raids into Mexico and Canada, see II Moore, pp. 434 ff.

The right to cross the border in order to prevent the violation of territorial sovereignty was also maintained by Great Britain, and admitted by the United States Government, in the case of the Caroline, an American steamboat which was being used by Canadian insurgents and their American sympathizers to transport recruits and military supplies from Schlosser, N. Y., on the American side of the Niagara River, to Navy Island, the headquarters of the insurgents, during the Canadian insurrection in the winter of 1837-8. This island, through which ran the boundary line of the United States and Canada, was located in the middle of the Niagara River. It was believed that the Caroline would be used also to transport the expedition from Navy Island to the Canadian shore. On the night of December 29, 1837, she was seized by Canadian forces at Schlosser, N. Y., and set adrift over the Niagara Falls.

As

Daniel Webster, then Secretary of State, contended, however, that to justify the conduct of the Canadian authorities, England must show a "necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberations. Westlake says: "This was good law, except as to the emergency's leaving no moment for deliberation, which seems to imply, but which was not intended to imply, that the act was one which deliberation would condemn.''

The doctrine of "hot pursuit," when applied on the high seas, based on the right of protection and self-defense, in case of necessity, has found considerable support from authorities on international law.

For example, Bluntschli says:

When the crew of a vessel has committed an offense on land or in territorial waters of another state, and is pursued by the justice of such a state, the pursuit of this vessel may be continued outside the territorial waters into the free sea.

But when the vessel has escaped this pursuit, it cannot be attacked on the high sea by the vessels of another state.4

3 International Law, Pt. I, 2d ed., p. 313. For the case of the Caroline, see especially II Moore's Digest, § 217, pp. 409 ff. See also III Moore's International Arbitrations, 2419 ff; General Scott, Autobiography, I, pp. 305-317; Hall, 7th ed., pp. 323-4; Hershey, Essentials, p. 145 n.; Lawrence, 5th ed., Principles, § 229, p. 610; Snow, Cases, pp. 177-8; and I Westlake, pp. 313-14.

4 Le droit interntional codifié, 3d ed., Art. 342.

Rivier declares:

The territorial jurisdiction in coastal waters is susceptible of extension to the high seas by virtue of a right of pursuit practiced for a long time by Great Britain and the United States which may be considered as accepted by consent of nations. When a vessel or its crew, having committed an infraction in territorial waters, seeks to evade punishment by taking to the open sea, the vessels of the [injured] state may pursue it into the high seas and bring it back by force.5

Hall (7th ed., p. 258) includes among exceptions to the rule of territorial jurisdiction the case where "persons on board a ship lying in or passing through foreign waters commit acts forbidden by the territorial law"; in which case, he says, "the local authorities may pursue the offending vessel into the open sea in order to vindicate. their jurisdiction."

Again, says Hall (p. 266):

It has been mentioned that when a vessel, or some one on board her, while within foreign territory commits an infraction of its laws, she may be pursued into the open seas, and there arrested. It must be added that this can only be done when the pursuit is commenced while the vessel is still within the territorial waters or has only just escaped from them. The reason for the permission seems to be that pursuit under these circumstances is a continuation of an act of jurisdiction which has been begun, or which but for the accident of immediate escape would have been begun, within the territory itself, and that it is necessary to permit it in order to enable the territorial jurisdiction to be efficiently exercised. The restriction of the permission within the bounds stated may readily be explained by the abuses which would spring from a right to waylay and bring in ships at a subsequent time, when the identity of the vessel or of the persons on board might be doubtful.

Westlake (I, 2d ed., p. 177) speaks of the "perhaps doubtful exception" to the "exclusive authority of the state of the flag in the open sea" for the "case of pursuit lawfully commenced in territorial waters and continued without interruption in the open sea." But he cites in support of this exception the fact that "this extension of the right of the territorial state was voted unanimously by the Institute of International Law in 1894," and remarks that the right of pursuit is "necessary to the effective administration of justice and to the secure enjoyment of fishery rights in times of peace." He also cites with apparent approval Sir Charles Russell's argument

5 Principes, I, p. 151.