"On the 19th of February, 1873, Her Majesty's minister at this capital brought to the attention of the Department a case, occurring at Galves ton, Texas, in which the master of the British ship Bucephalus had been arraigned before a local State magistrate, who happened, also, to be a United States commissioner, upon the complaint of one Thomas Moffit, a seaman of that vessel, for an alleged assault, commenced while the ship was at sea and continued after her arrival at that port. The case was referred by this Department to the Attorney-General, and that officer instituted an immediate investigation. It was found, upon inquiry, that the magistrate in question had instituted the proceedings in his capacity of justice of the peace, an office which he held under the laws of the State of Texas, and not as United States commissioner, and that upon being advised by the United States district attorney for that district that it was not a matter of which either the authorities of the United States or of the State should take cognizance, the master being amenable to the laws of the nation to which his vessel belonged, the complaint was at once dismissed by the magistrate. In the same note the British minister complained of certain proceedings of two United States commissioners at New Orleans with reference to the discharge of seamen from a British vessel at that port, the seamen in question being citizens of the United States and claiming the interposition of the local authorities on that ground. These officers were also instructed that such interference with the police regulations established by Great Britain for the government of their merchant vessels was contrary to the policy of this Government, and that even in cases where the right of the local magistrates to assert the jurisdiction was undoubted, its exercise should be avoided. These instructions have been adhered to, and there has since been no recurrence at that port of the interference then complained of. "In another case, which occurred at Charleston, S. C., and which was brought to the attention of the Department by Sir Edward Thornton in a note of the 6th of May, 1874, in which it appeared that John Bogan, a seaman of the British ship Amelie, complained before a United States commissioner of ill treatment received at the hands of the captain of that vessel, it turned out, upon inquiry, that the commissioner was not advised of the nationality of the vessel when he issued his warrant of arrest, and, that as soon as the fact was disclosed to him that the occurrences complained of took place upon a British vessel, he promptly advised the United States district attorney of that circumstance, and, upon the advice of the latter officer, immediately dismissed the complaint. "In these several cases, occurring in the United States, it must also be noticed that the proceedings were taken by petty or inferior magistrates, who may not reasonably be supposed to be learned in the law, while in the case of the Lathley Rich, at Hong-Kong, the proceedings were commenced before a nisi prius court and ultimately heard and deter mined on appeal before the supreme court of the colony, and the same is true of some cases which occurred at Melbourne. "The instances thus given, taken in connection with the practice and doctrine laid down by Mr. Justice Betts in the United States court for New York, sitting in admiralty, to which I adverted in my No. 476 to you, serves to show the uniform regard in which these principles of international comity and convenience have been held by the Government of the United States. "It is therefore with regret that I notice the absence of a reciprocal respect for these principles in the administration of the local courts of Great Britain, and particularly in Her Majesty's colonies, in their proceedings towards American merchant vessels. "Bearing in mind the views expressed in my former instruction (No. 476), it is desired that you will take the earliest favorable opportunity of bringing to the attention of Her Majesty's Government the case of the Lathley Rich, now transmitted in connection with the general question of the jurisdiction referred to, and you will represent to Earl Derby the interest felt by this Government in the adoption of such measures by that of Great Britain as will prevent a recurrence of such cases, and be effective, especially as regards the colonial courts, in putting a stop to this exercise of jurisdiction, at once injurious to the interests of the vessels which may be the subjects of it, and the possible cause of international inconvenience to two nations so largely interested in the commerce of the world as are those of the United States and Great Britain." Mr. Fish, Sec. of State, to Mr. Schenck, March 12, 1875. MSS. Inst., Great The position that a ship at sea is a part of the country whose flag she bears is assailed in the North American Review of July, 1862 (vol. 95, 8), and the reason is given that such ships on entering ports are subject in police matters to the law of the port. But the rule itself is subject to this limitation, being only applicable to "ships at sea." It would be as logical to deny the allegiance of a subject to his sovereign on the ground that when he sojourns in a foreign land he becomes bound, when in that land, by its police laws. A ship cannot draw around her a line of jurisdiction and appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. The Marianna Flora, 11 Wheaton, 1. A ship at sea is regarded in international law as a portion of the territory of the nation whose flag she carries and as subject to that nation's jurisdiction. Crapo r. Kelly, 16 Wallace, 610. "A vessel at sea is considered as part of the territory to which it belongs when at home. It carries with it the local legal rights and legal jurisdiction of such locality. All on board are endowed and subject accordingly." Swayne, J.; Wilson v. McNamee, 102 U. S., 574; S. P., Maclachlan, Merch. Ship., 3d ed., 64, 65, 140. A person on board of an American vessel is, in contemplation of law, within the territory and jurisdiction of the United States. Re Moncan, 14 Fed. Rep'r, 44. "The extraterritorial jurisdiction of a nation, exclusive or concurrent, extends over the following places: "1. All the land or water included within the lines of its fleets or armies, exclusive in respect to its own members, and concurrent with that of the nation owning the territory, in respect to members of that or of any other nation. "2. All ships bearing its national character, exclusive except in the case of a private ship within the limits of another nation, and in that case, concurrent with such nation." "4. Vessels belonging to the citizens of the nation on the high seas, and public vessels, wherever found, have some of the attributes of ter ritory. Field, Int. Code, § 309. "In regard, however, to the territorial character of vessels it is nec essary to be more definite, for if they have this property in some respects but not in all, only false and illogical deductions can be drawn from an unqualified statement. Is it true, then, that they are iden tical in their properties with territory? If a ship is confiscated on account of piracy or of violation of custom-house laws in a foreign port, or is there attached by the owner's creditor and becomes his property, we never think that territory has been taken away. For a crime committed in port a vessel may be chased into the high seas and there arrested, without a suspicion that territorial rights have been violated, while to chase a criminal across the borders and seize him on foreign soil is a gross offense against sovereignty. Again, a private vessel when it arrives in a foreign port, ceases to be regarded as territory, unless treaty provides otherwise, and then becomes merely the property of aliens. If injury is done to it, it is an injury which indirectly affects the sovereign of the alien, whereas injuries to territory, properly so called, affect the public power in an immediate manner. It is unsafe, then, to argue on the assumption that ships are altogether territory, as will appear, perhaps, when we come to consider the laws of maritime warfare. On the other hand, private ships have certain qualities resembling those of territory: (1) As against their crews on the high seas; for the territorial or municipal law accompanies them as long as they are beyond the reach of other law, or until they come within the bounds of some other jurisdiction. (2) As against foreigners, who are excluded on the high seas from any act of sovereignty over them, just as if they were a part of the soil of their country. Public vessels stand on higher ground; they are not only public property, built or bought by the Government, but they are, as it were, floating barracks, a part of the public organism, and represent the national dignity, and on these accounts, even in foreign ports, are exempt from the local jurisdiction. In both cases, however, it is on account of the crew, rather than of the ship itself, that they have any territorial quality. Take the crew away, let the abandoned hulk be met at sea; it now becomes property, and nothing more." Woolsey, Int. Law, § 54. IX. CRIMES AT SEA SUBJECT TO COUNTRY OF FLAG § 33a. "I have no doubt that an offense, committed on board a public ship of war, on the high seas, is committed within the jurisdiction of the nation to whom the ship belongs. How far the President of the United States would be justifiable in directing the judge to deliver up the offender is not clear. I have no objection to advise and re quest him to do it." President Adams to Mr. Pickering, Sec. of State, May 21, 1799; 8 John Adams's Works, 651. [The district judge of South Carolina had declined to deliver up to Sir Hyde Parker a seaman who had been engaged in a mutiny and murder of the officers of the British frigate Hermione.] As to Robbins' case, see infra, § 271a. "I inclose herewith a copy of a dispatch recently received from A. C. Litchfield, esq., consul-general of the United States at Calcutta, in relation to the case of one John Anderson, an ordinary seaman on board the American bark C. O. Whitmore, who, it appears, stabbed and killed the first officer of the ship on the 31st of January last, while that vessel was on her way from New York to Calcutta, sixteen days from her port of departure, and on the high seas in latitude 25° 35' N. and longitude 35° 50′ W. "You will perceive that the consul-general invoked the aid of the local police authorities in securing the safe custody of the accused, who was a prisoner of the United States, until he could complete the necessary arrangements for sending him to this country for trial, against whose municipal laws only he was accused of having of fended, and that while thus in the temporary custody of the local police, the colonial authorities took judicial cognizance of the matter, claiming, under the advice of the advocate-general of the colony, that, under a colonial statute, which confers upon the courts of the colony jurisdiction of crimes committed by a British subject on the high seas, even though such crimes be committed on the ship of a foreign nation, and that inasmuch as the accused, although appearing on the ship's articles under the name of John Anderson, subject of Sweden, had declared that his real name was Alfred Hussey, and that he was a native of Liverpool and therefore a British subject, the case came within the jurisdiction of those courts. "The matter is now believed to have reached that point in the judicial proceedings where effective measures for asserting the jurisdic tional rights of the United States would be unavoidable in this particular case. And whilst I entertain no doubt that the accused will receive as fair a trial in the high court of Calcutta, where it is understood he is to be tried, as he would in the circuit court of the United States, in which tribunal he would be arraigned were he sent here for trial, I deem it proper, at the same time, to instruct you to bring the question to the attention of her Majesty's Government, in order to have it distinctly understood that this case cannot be admitted by this Government as a precedent for any similar cases that may arrise in the future. No principle of public law is better understood nor more universally recognized than that merchant vessels on the high seas are under the jurisdiction of the nation to which they belong, and that as to common crimes committed on such vessels while on the high seas, the competent tribunals of the vessel's nation have exclusive jurisdiction of the questions of trial and punishment of any person thus accused of the commission of a crime against its municipal laws; the nationality of the accused can have no more to do with the question of jurisdiction than it would had he committed the same crime within the geographical territorial limits of the nation against whose municipal laws he offends. The merchant ship, while on the high seas, is, as the ship of war is everywhere, a part of the territory of the nation to which she belongs. "I pass over the apparent breach of comity in the proceeding of the colonial officials as being rather the result of inadvertence and possible misconception on the part of the Government law officer of the colony, than any design to question the sovereignty of the United States in this or cases of a similar nature." Mr. Evarts, Sec. of State, to Mr. Welsh, July 11, 1679. MSS. Inst., Great Brit. ; That a crime by a foreigner in a United States ship is cognizable by the United Cf. notice of Ross' case in President Arthur's first annual message, Dec. 5, 1881, "Referring to my instruction No. 328, of the 11th instant, in relation to the case of John Anderson, alias Alfred Hussey, and the claim of jurisdiction advanced and exercised in relation thereto by the high court of Calcutta, a British tribunal, notwithstanding that the accused was a seaman upon the American bark C. O. Whitmore, and the crime for which he was tried was committed on the high seas, I have now to transmit for your further information, and as material to the intelligent discussion of the points involved, should Her Majesty's Government provoke argument thereon, copy of an additional dispatch, dated the 10th ultimo, received from Consul-General Litchfield, in which the later proceedings of the high court, comprising further assertion and exercise of jurisdictional power in the premises, are so fully set forth that it is found unnecessary to your understanding of the case to send you transcript of the voluminous appendices transmitted by the consul-general. |