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Secondly.—The French authorities re-deliver a portion of the prisoners to the consul to be held on board the Atalanta; and
Thirdly.—They retake the latter prisoners from on board the Atalanta.
In my opinion, when the Atalanta arrived at Marseilles, the master of that ship had lawful power, with aid of the consul, if required, to retain these men on board. Though not citizens of the United States, they were American seamen under voluntary contract for a voyage to New York, whom the local authorities had no just power to discharge from their contract.
The consideration that they had committed crimes'on board the ship, but not within the local jurisdiction, for which crimes they were liable to be punished on her reaching New York, did not give to the local authorities any just right to interfere. If crime had I been committed while the ship lay in the territorial waters, then the local authorities, and they alone, would have had jurisdiction, and might have gone on board to seize the prisoners by force, but not when no act had been done by them to give jurisdiction of the case to France.
I transfer the question to the United States, and proceed to suppose that a French merchant ship, on her way to Marseilles, puts into New York, in distress, having at the time mutinous members of her crew confined on board. Could such persons in such a case be lawfully taken away from the custody of the master by the local authorities, with instrumentality of the writ of habeas corpus or otherwise? I think not.
Now, by the consular convention, and by the law of nations without it, the consul represented the master, and his country alone, in matters calling for the intervention of the authorities of Marseilles. This representative duty, and this only, the consul undertook to discharge in the present case. He did not claim or assume to exercise any power, judicial or other, in derogation of the territorial sovereignty.
I think the consul acted lawfully, when, at the first stage of the transaction, he requested the local authorities to take temporary charge of these prisoners.
I do not say the local authorities were bound to assume the responsibility of such custody; but they might well in comity do it; nay, it was their duty, in my opinion, at the call of the consul, at least to lend him their aid in this respect, by the express terms of the convention.
I concede in the fullest terms the integrity of the local sovereignty, and that, instead of contradicting, seems to corroborate my view of the subject; for how shall the consuls maintain the internal order of the merchant vessels of their nation—how in the foreign port shall they imprison persons, save through the assistance of the local authority? Are they to do it by their own unaided force in the presence of the local jurisdiction?
Surely to allow this would be to produce the greatest disorders, which can be avoided only by having recurrence to the local authority for its own lawful action in behalf of the consul.
However this may be, my conviction is clear that the local authority, even if it may refuse to aid, cannot lawfully interpose to defeat, the lawful confinement of any members of the crew by the master, on board the ship, with advice and approbation of the consul.
If the parties confined have the lawful right to be discharged from such custody, they may obtain it on application to the consul. That is one of his legitimate, exclusive, and ordinary functions.
That the right and the power of the local jurisdiction are such only as here suggested, is the opinion of the jurists of France.
Ortolan states the doctrine as follows: "As to ships of commerce, we know that when they are in the territorial waters of a foreign State, they are not exempt from the local police and jurisdiction, except as to facts happening on board which do not concern the tranquillity of the port, or persons foreign to the crew. For all other facts, they remain subject to this police and this jurisdiction. Hence it follows that the local authority has the right to pass on board these vessels, there to pursue, search for, and arrest persons who have been guilty, either on shore or even on board, of acts amenable to the territorial justice" (Diplomatie de la Mer, tom. i. p. 335).
In the present case the crimes committed on board the Atalanta were not "amenable to the territorial justice;" they did not concern the "tranquillity of the port," nor did they affect any persons " foreign to the crew."
The rule of law, as thus laid down by Ortolan, seems to have been drawn from a decision of the Council of State in the time of the Emperor Napoleon I., to the point that the local authority will not intermeddle with acts, even crimes, committed on board a foreign ship in such circumstances (Ortolan, tom. i. p. 450, annexe ii.).
Nay, the French laws do not hesitate to prescribe that when crimes are committed on board a French vessel in a foreign port, by one of the crew against another of the same crew, the French consul is to resist the application of the local authority to the case (Ord. du 29 Oct. 1833, tit. iii. art. 22; De Clercqq, Form. tom. ii. p. 65).
This doctrine has become so firmly fixed in France, that the best writers assume it as a rule of international law (see MiL de Clercqq et de Vallet, Guide Pratique, tom. i. p. 366).
Indeed, the recent legislation of France confers on her consuls unmistakable jurisdiction in these matters (Decret du 24 Mars, 1852; see De Clercqq, Formulaire, tom. ii. p. 348).
Previously, their duties were in the nature of surveillance rather than jurisdiction (Moreuil, Guide des Ageas Cons. p. 389).
We do not go so far in this as France. I admit, as already stated, the local authority in regard to crimes committed on board a merchantman in the territorial waters; but I deny that the local authority has any right to interfere with persons lawfully detained on board the ship by the laws of the country to which she belongs, as for a crime committed on the high seas among members of the crew, and not justiciable by the foreign jurisdiction. France, at least, cannot deny to us, it would seem, this exemption, when she herself claims to extend it so much further, and make it comprehend occurrences internal to the crew, even though happening in port.
The doctrine of the public law of Europe on this point is well stated by Riquelme, as follows: "Crimes committed on the high seas, whether on board ships of war or merchantmen, are considered as committed in the territory of the State to which the ship belongs, because only the laws of the latter are infringed, and consequently only the jurisdiction of the same is called upon to adjudicate, whether the accused be of the nationality of the ship or a foreigner, and whether the crime were committed against a fellow-countryman or between foreign passengers.
"If the ship on board of which the crime has been committed arrives then at a port, the jurisdictional right of the territory to which the ship belongs over the accused does not on that account cease. So that if one of these were a foreign subject to which the port at which the ship stops belongs, even in that case it is the right of the captain to detain him on board, that he may be judged by the tribunals of the ship's country. And if this passenger should get on shore, and should institute before the tribunals of his country proceedings against the captain, the local authority will be incompetent to judge the foreign captain, because the fact in question occurred in a foreign country—that is, on board a foreign merchantman on the high seas—and because, by embarking in that ship, the party is presumed to have submitted himself to the laws of the foreign territory of which the ship constitutes a part.
"When the crime is not committed on the high seas, but while the ship is in territorial waters, then it is necessary to distinguish between ships of war and merchantmen. In the first case the principle of ex-territoriality covers the ship from all foreign inter-( vention or investigation ....
"In the second case, when the crime has been committed on board a merchantman in a foreign port, the resolution is different, because the condition of a merchantman in a foreign port is different from that of a man-of-war. The rule in these cases, in default of treatises or inducements of reciprocity determining it, is, that if the offence affect only the interior discipline of the ship, without disturbing or compromitting the tranquillity of the port, the local authority ought to declare itself incompetent unless its assistance is requested, because the true regulator of these questions, in which the local authority has no interest, is the consul.
"But if the offence has been committed by one of the crew against a subject of the country or another foreigner, or if, occurring among those of the crew, it be of a nature to compromise the tranquillity of the port, then the territorial jurisdiction is entitled to punish the crime, even although the accused undertake to claim the protection of the ship" (Riquelme, Derecho Internacional, tom. i. pp. 243, 245).
These are just and reasonable views applicable to the present case.
I confess myself wholly at a loss, therefore, to see on what assignable ground of strict international right it was that the local authority at Marseilles proceeded in withdrawing these parties from their lawful confinement on board the Atalanta.
If indeed it were the intention of France to try these men for their crime, and it had been committed in the territorial waters so as to be capable of being tried there, then indeed we might see cause for withdrawing them from the custody of the ship or consul. But no such thing is proposed in the despatch of M. Baroche.
If the legality of what has been done be admitted, then municipal crimes perpetrated on the high seas will much of the time escape unpunished. One term of every voyage is a foreign port. If a crime other than piracy be committed while on the way thither, and the criminal cannot be detained on board the ship or on shore, subject to the discretion of the consul, he cannot be tried; for the local authority cannot try him, and if he is to be withdrawn from the custody of the ship, he cannot be tried in the country to which she belongs, and which alone has jurisdiction.
Thus the effect of the course entered upon by the local authority at Marseilles, if it should be sanctioned by the Emperor's Government, and admitted by the United States, would be to discharge these criminals without punishment, to set the example of immunity of crime in all such cases for the future, and tend to the most calamitous consequences as respects the safety of the commercial marine of both France and the United States.
The public evil in this respect would be sufficiently serious when considered in relation to the case of ordinary voyages; but in other cases, such as that of vessels forced into port by 6tress of weather, or other common perils of the sea, it would grow to be intolerable, and more especially in the case of acts of insubordination on the part of the crew. Meanwhile seamen would have nothing to do but to seize the ship and make for a foreign port, there to be released by the local authority. It would be to hold