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originally a British ship, yet had fallen into the hands of foreigners, and been altered so as not to correspond with her original certificate, and not re-registered; and inasmuch as she was not navigated according to the British Navigation Laws, she had lost her nationality and become a foreign ship. We are further of opinion that the colonial statute on the subject is valid, for reasons hereafter given by us in our answer to the questions, and that the Creole was, on these grounds, liable to condemnation and forfeiture.
With respect to the several questions on the case of the Creole, framed by Mr. Attorney-General Uniacke, appended to his letter to Sir G. Le Marchant sent with the papers, we are of opinion—
1. That, with respect to forfeiture, under 59 Geo. 3, c. 38, although both cases are equally within the mischief which the Act was intended to guard against, yet, as the language of the Act is ambiguous, and as the Act is of a highly penal nature, we are of opinion that it will not be advisable to forfeit under it any but foreign vessels.
2. Even if the Imperial Act, 59 Geo. 3, c. 38, should be insufficient to give Her Majesty power to impose all or any of the rules and regulations in question (a question which we need not now consider), the authority of the local legislature appears to us to be sufficient to make them valid in effect, by its express legislative enactment of them. The authority of the local legislature extends (like that of the Imperial Parliament) over the space of the three miles upon the high seas next the coast, which is, by the comity of nations, part of the country to which it is adjacent; and we are of opinion that, upon this general principle, and irrespective of the convention, the imperial statute, or the regulations of the Sovereign in Council, the colonial legislature was legally entitled to legislate as it has done relative to the fisheries, and that its enactments are valid and binding.
3. We are of opinion that such a vessel is, under the circumstances stated, liable to forfeiture under the express provisions of the colonial statute already referred to.
4. We are of opinion that the effect of 8 & 9 Vict. c. 89 is controlled by 12 & 13 Vict. c. 29, s. 17, and that it is no longer necessary that the owner of a vessel shall be resident within the Queen's dominions in order to satisfy the requirements of the British Navigation Laws.
5. The master in all cases, and, besides the master, either threefourths of the crew, or one seaman to every twenty tons, by the 12 & 13 Vict. c. 29, s. 27, must be British subjects.
6. A foreign fishing-vessel, duly registered and manned as a British vessel, may legally prosecute the fishery, as suggested, by virtue of 12 & 13 Vict. c. 29.
7. Such a ship will be liable to forfeiture and condemnation, if deficient in any requirement absolutely necessary to her nationality —as, for instance, if she be not registered or navigated as a British ship; but she will not be liable to forfeiture for deficiencies in other points of mere regulation, which involve only specific penalties—as, for instance, if she has not her tonnage carved on her beam, or her name painted on her stern.
(7.) Joint Opinion of the same Law Officers in the same Case, that indemnity for unauthorized seizure of a Foreign Vessel in Colonial Waters, for contravention of a Convention between Great Britain and a Foreign Country, ought to be paid by Great Britain.
Sir,—We are honoured with your letter of the 22nd September last, stating that, with reference to our report of the 6th August, 1853, on the subject of the judgment given in the Vice-Admiralty Court at Halifax, in the case of the Creole, you were directed by the late Sir William Molesworth to send us a copy of a despatch from Lieutenant-Governor Sir Gaspard Le Marchant, enclosing a petition from Mr. Elliot, one of the claimants of the vessel in that case, for indemnity for damages; and to request that we would take the same into consideration, and report our opinion whether we consider such pecuniary indemnity ought to be given, and, if so, whether by the Home Government or by the Government of Nova Scotia.
His Grace the Duke of Newcastle, &c. &c. &c.
J. D. Harding,
Doctors' Commons, November 12, 1855.
In obedience to the above commands we have the honour to report—
That, in our opinion, the pecuniary indemnity sought by the owner of the Creole ought to be given. The question, in order to decide which the Creole was captured, arose out of a Convention between Great Britain and the United States, and she was captured by one of Her Majesty's ships, under instructions from the Imperial Government. The matter was therefore one of imperial concern, and we are of opinion that the indemnity must be paid by the Imperial Government, and not by that of Nova Scotia.
(8.) Opinion of the United States Attorney General, Mr. Ccshing, on the seizure by the French Authorities in the Port of Marseilles of Seamen on hoard an American Ship charged with Crime (i).
Sir,—I have examined the correspondence between Mr. Mason, the envoy of the United States in France, and the President of the Council of State of the French Empire, charged, par interim, with the Ministry of Foreign Affairs, M. Baroche, as communicated to me by your note of the 5th instant, and have reflected on the pertinent questions of public law which you suggest for my consideration.
Without entering into recapitulation of all the facts involved in the discussion, it will suffice for the present purpose to state such only as are essential to the right understanding of the points now remaining to be determined.
It appears that while the American merchant ship Atalanta was on a voyage from Marseilles to New York, and on the high seas, out of the municipal jurisdiction of any Government, acts of insubordination and violence occurred on the part of her crew, by whom the ship was forced to put back to Marseilles.
On her arrival in port, the criminal parties were, on the appli
Attorney General's Office, September 6, 1856.
(i) 8 Attorney Generals' Opinions, 73.
cation of the American consul, received and imprisoned on shore by the local authorities.
Afterwards a certain number of them were released absolutely, with assent of the consul. Thirteen of the crew thus remained. Of these a portion, six in number, were, on the application of the consul, taken from the prison and placed on board the Atalanta for conveyance to the United States, under charge of crime. Then— with notice to the consul, it is true, but in spite of his remonstrances—the local authorities went on board the Atalanta, and forcibly resumed the possession of the six prisoners, and replaced them in confinement on shore, where they now remain, together with the seven others not taken on board, the subject of the pending correspondence.
It does not distinctly appear of what nationality these men are, but it is implied, by the tenor of the discussion on both sides, that they are neither citizens of the United States nor citizens of France.
The acts of criminality with which they stand charged constitute the crime of revolt, and also that of felonious assault, under circumstances which bring the case within the jurisdiction of the judicial authorities of the United States (Act of March 3, 1835).
To the same effect undoubtedly is the French law, which assumes, as ours does, that the ship is a part of the territory of her country, and provides specially for the punishment of crimes committed on board (Ord. de 1681, liv. ii. tit. 1, art. 22; Valin, Comment . tom. i. p. 449; Decret. du 24 Mars, 1852; De Clercqq, Formul . tom. ii. p. 348).
To this it is wholly immaterial, by our law, whether they were citizens of the United States or not (United States v. Sharp, 1 Peters C. C. R. 118, 121).
Nor is it material whether, in their shipment on board the Atalanta, the master did or not infringe the Navigation Laws of the United States.
The practical inquiries are—
1. Whether, in view of the stipulations of the consular convention between the United States and France of February 23, 1853, or of the rules of international law, the French authorities acted rightfully in going on board the Atalanta, to retake the six seamen placed there for transmission to the United States.
2. Whether the American Government may now, in virtue of treaty or of the law of nations, rightfully demand the extradition of these thirteen men for transmission to the United States, there to be tried in due course of law for their imputed crimes?
It is due to the Emperor's Government to say, that the questions made in the case are manifestly presented by it in goodwill and in all comity, as regards the United States, and may, therefore, be dealt with by all", unreservedly, in their legal relations.
1. Of the rightfulness of the retaking of the men from on board the Atalanta.
I perfectly agree with M. Baroche, that it was not the object of the consular convention to confer on the consuls of either nation the jurisdiction of crimes in the ports of the other.
It is also undeniably true, that by the general rules of public laws, at least as they are understood and received in the United States, we do not claim for ourselves, nor concede to other nations, the right of ex-territoriality for merchant ships in the territorial waters.
If, in concluding this convention, the two Governments had designed to establish as between themselves a new rule in this respect, they would have said so expressly; and if they had so declared expressly, the convention would not have been confirmed on our side, for no State of the Union probably would have consented thus to surrender its own municipal jurisdiction in its own waters to the consuls of France.
But in treating the question as one either of the criminal jurisdiction of consuls, or of the ex-territoriality of merchant vessels on the territorial waters, do we not assume for it too broad a scope?
I conceive the true question to be a much narrower one. It is whether, when a crime has been committed on the high seas on board an American ship, that crime being of the sole competency of the United States, and the ship is compelled, by her contract of destination, by stress of weather, or by the crime itself, to touch at a French port—whether, in such case, the criminal may be forcibly withdrawn from the ship by the local authorities, or by the order of the Government?
This question presents itself here in three different forms:—
First.—The French authorities take the temporary custody of the parties at the request of the American consul.