Law of

France, as to the ex

private ves

local juris

diction.

§ 102. The maritime jurisprudence of France, in respect to foreign private vessels entering the French ports emption of for the purposes of trade, appears to be inconsistent with sels from the the principles established in the above judgment of the Supreme Court of the United States; or, to speak more correctly, the legislation of France waives, in favor of such vessels, the exercise of the local jurisdiction to a greater extent than appears to be imperatively required by the general principles of international law. As it depends on the option of a nation to annex any conditions it thinks fit to the admission of foreign vessels, public or private, into its ports, so it may extend, to any degree it may think fit, the immunities to which such vessels, entering under an implied license, are entitled by the general law and usage of nations.

The law of France, in respect to offences and torts committed on board foreign merchant vessels in French ports, establishes a twofold distinction between:

1. Acts of mere interior discipline of the vessel, or even crimes and offences committed by a person forming part of its officers and crew, against another person belonging to the same, where the peace of the port is not thereby disturbed.

2. Crimes and offences committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other if the peace of the port is thereby disturbed.

In respect to acts of the first class, the French tribunals decline. taking jurisdiction. The French law declares that the rights of the power to which the vessel belongs, should be respected, and that the local authority should not interfere, unless its aid is demanded. These acts, therefore, remain under the police and jurisdiction of the State to which the vessel belongs. In respect to those of the second class, the local jurisdiction is asserted by those tribunals. It is based on the principle, that the protection accorded to foreign merchantmen in the French ports cannot divest the territorial jurisdiction, so far as the interests of the State are affected; that a vessel admitted into a port of the State is of right subjected to the police regulations of the place; and that its crew are amenable to the tribunals of the country for offences committed on board of it against persons not belonging to the ship, as well as in actions

for civil contracts entered into with them; that the territorial jurisdiction for this class of cases is undeniable.

It is on these principles that the French authorities and tribunals act, with regard to merchant ships lying within their waters. The grounds upon which the jurisdiction is declined in one class of cases, and asserted in the other, are stated in a decision of the Council of State, pronounced in 1806. This decision arose from a conflict of jurisdiction between the local authorities of France and the American consuls in the French ports, in the two following

cases:

The case

of The Newton.

§ 103. The first case was that of the American merchant vessel, The Newton, in the port of Antwerp; where the American consul and the local authorities both claimed exclusive jurisdiction over an assault committed by one of the seamen belonging to the crew against another, in the vessel's boat. The second was that of another American vessel, The Sally, in the port of Marseilles, where exclusive jurisdiction was claimed, both by the local tribunals and by the American consul, as to a severe wound inflicted by the mate on one of the seamen, in the alleged exercise of discipline over the crew. The Council of State pronounced against the jurisdiction of the local tribunals and authorities in both cases, and assigned the following reasons for its decision:

"Considering that a neutral vessel cannot be indefinitely regarded as a neutral place, and that the protection granted to such vessels in the French ports cannot oust the territorial jurisdiction, so far as respects the public interests of the State; that, consequently, a neutral vessel admitted into the ports of the State is rightfully subject to the laws of the police of that place where she is received; that her officers and crew are also amenable to the tribunals of the country for offences and torts (a) committed by them, even on board the vessel, against other persons than those belonging to the same, as well as for civil contracts made with them; but that, in respect to offences and torts committed on board the vessel, by one of the officers and crew against another, the rights of the neutral power ought to be respected, as exclusively concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection is demanded, or the peace and tran

(a) The term used in the original is delits, which includes every wrong done to the prejudice of individuals, whether they be délits publics or delits privés.

quillity of the port is disturbed, the Council of State is of opinion that this distinction, indicated in the report of the Grand Judge, Minister of Justice, and conformable to usage, is the only rule proper to be adopted, in respect to this matter; and applying this doctrine to the two specific cases in which the consuls of the United States have claimed jurisdiction; considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other case was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen, for having made use of the boat without leave; is of opinion that the jurisdiction claimed by the American consuls ought to be allowed, and the French tribunals prohibited from taking cognizance of these cases." (b)

62

(b) Ortolan, Régles Internationales de la Mer, tom. i. pp. 293-298. Appendice, Annexe H. p. 441.

[62 Case of the Creole. - The brig Creole, an American merchant-vessel, sailed from a port in Virginia in 1841, bound to New Orleans, having on board one hundred and thirty-five slaves. A portion of the slaves rose against the officers and got complete possession of the vessel, killing one passenger and severely wounding the captain and others of the crew, in the struggle. They compelled the mate, under threat of death, to navigate the vessel to Nassau, where she arrived and came to anchor. At the request of the United States Consul at Nassau, nineteen of the slaves, who were identified as having taken part in the acts of violence, were arrested by the local authorities, and held to await the decision of the British Government. As to the rest of the slaves, there was a question whether they got on shore and gained their liberty by their own act, or through the positive and officious interference of the colonial authorities, while the vessel was under control of the Consul and master. Mr. Webster addressed a letter to Lord Ashburton on this subject. His position is, that "if vessels of the United States, pursuing lawful voyages from port to port along their own shore, are driven by stress of weather, or carried by unlawful force, into British ports, the government of the United States cannot consent that the local authorities in those ports shall take advantage of such misfortunes, and enter them, for the purpose of interfering with the condition of persons or things on board, as. established by their own laws. If slaves, the property of citizens of the United States, escape into British territories, it is not expected that they will be restored. In that case, the territorial jurisdiction of England will have become exclusive over them, and must decide their condition. But slaves on board of American vessels lying in British waters are not within the exclusive jurisdiction of England, or under the exclusive operation of English law; and this founds the broad distinction between the cases. If persons guilty of crimes in the United States seek an asylum in the British dominions, they will not be demanded until provision for such cases be made by treaty; because the giving up of criminals, fugitives from justice, is agreed and understood to be a matter in which every nation regulates its conduct according to its own discretion. It is no breach of comity to refuse such surrender. On the other hand, vessels of the United States, driven by necessity into British ports, and staying there no longer than the necessity exists, violating no law, and having no intent to

Exemp

the local

does not

§ 104. Whatever may be the nature and extent of the exemption of the public or private vessels of one State tion of public or private from the local jurisdiction in the ports of another, it is vessels from evident that this exemption, whether express or im- jurisdiction plied, can never be construed to justify acts of hostility extend to committed by such vessel, her officers, and crew, in vio- justify acts lation of the law of nations, against the security of sion against the security the State in whose ports she is received, or to exclude of the State. the local tribunals and authorities from resorting to such measures of self-defence as the security of the State may require.

of aggres

This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian

violate any law, will claim, and there will be claimed for them, protection and security, freedom from molestation and from all interference with the character or condition of persons or things on board. In the opinion of the government of the United States, such vessels, so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage, and turned out of their direct course by disaster or by wrongful violence; that they ought to receive all assistance necessary to enable them to resume that direct course; and that interference and molestation by the local authorities, where the whole voyage is lawful both in act and intent, is ground for just and grave complaint." Webster's Works, vi. 303-318.

Mr. Wheaton wrote an article upon this subject in the Revue Française et Etrangère, ix. 345, in which he took the ground, that the Creole never passed under British jurisdiction so as to affect the legal relations of persons and things on board, or to give the British Government such jurisdiction over the persons on board as to make the case one of extradition; and that the master, with such aid as he could obtain from the Consul or otherwise, was entitled not only to carry to the United States all the persons on board, whether held as slaves or criminals, without molestation from the authorities, but to receive the assistance of those authorities to regain and hold possession of his vessel.

The United States Government demanded the restoration of the slaves, which was refused by the British Government, on the ground, that, being in fact at liberty within the British dominions, they could not be seized there when charged with no crime against British law, and while there was no treaty of extradition. This case was then submitted, as a private claim for pecuniary indemnity, to the Commission under the convention of Feb. 8, 1853. The commissioners being unable to agree, it was, by the terms of the convention, referred to an umpire, Mr. Joshua Bates, of London. In deciding the case, Mr. Bates stated two propositions of law,

First, That, as the slaves were perfectly quiet, and on board an American ship under the command of the captain, the authorities should have seen that the captain was protected in his rights over them.

Second, That "the municipal law of England cannot authorize a magistrate to violate the law of nations, by invading with an armed force the vessel of a friendly nation that has committed no offence, and forcibly dissolving the relations which, by the laws of his country, the master is bound to preserve and enforce on board.”

There would seem to be no doubt of the latter proposition; but the facts which Mr.

steam-vessel, The Carlo Alberto, which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin, ainé, Procureur-Général, reversed the decision of the inferior tribunal releasing the prisoners taken on board the vessel, upon the following grounds:

1. That the principle of the law of nations according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, or neutral; as if, for example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the State, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pretext of distress.

2. That supposing such allegation of distress be founded in fact, it could not serve as a plea to exclude the jurisdiction of the Bates considered to be proved were hardly sufficient for its application. At the same time, they made a stronger case than was necessary for the first proposition. Although there was no "invading with an armed force, and forcibly dissolving the relations," the authorities still not only gave no aid to the master, but officially announced to the negroes that they were free to go or stay on board, and this while there were private boats alongside ready to take them off, in which were men apparently ready to resist the use of force by the master to retake them. As to the former proposition of Mr. Bates, I do not find a course of precedents acted upon or acquiesced in by nations; and it seems open to speculation. It may be conceded, as a general statement, that local authorities ought to give active aid to a master in defending and enforcing, against the inmates of his vessel, the rights with which his own nation has intrusted him, if these rights are of a character generally recognized among all nations, and not prohibited by the law of the place. But it may well admit of doubt, whether the local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize, a relation which exists only by force of the law of the nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals. The local authorities might not interfere to dissolve such relations, where the peace of the port or the public morals are not put in peril; but they might, it would seem, decline to lend force to compel their continuance. The most tenable ground for Mr. Bates's decision is, that the facts, as he found them, showed an active and officious, though not forcible, intervention by the authorities to encourage the negroes in leaving the vessel, and to discourage the master from using such means as he had to prevent it.] — D.