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out inducements and temptations to mutiny and murder on the high seas.
The superior intelligence of M. Baroche cannot fail to see this, and to impel him to suggest to the diplomatic agents of any other Government who have made representations on the subject, that, in seeking for whatever plausible reason to abstract these men from the only jurisdiction which can try the offence, they do irreparable prejudice to the interests of all the maritime States of Europe and America.
It cannot be for the interest of Sardinia, for instance, of Austria, of Spain, to have it established as a rule of public law, that seamen who have'committed crimes appertaining to their penal jurisdiction, and to no other, shall be set free the moment the ship in which they may be touches at a foreign port. It is for the common benefit of the civilized world to see to the condign punishment of all crimes committed on the high seas.
Permit me to add, that the United States, while recognising the local authority generally in the case of merchant ships, have never claimed nor conceded it as to things not appertaining to the territorial jurisdiction. We have constantly affirmed our right to detain on board our ships, even in a foreign port, persons held to such detention by the laws of the United States (see Mr. Legare's opinion of July 20,1842; also Wheaton's Elements by Lawrence, p. 156, note).
Permit me also to remind you of the recent case of the ship Corsica at Calcutta (Opinion, June 25, 1856), which greatly resembles this in many respects, involving the question of extradition as well as detention, and which was disposed of by the British Government on both points as claimed by us here—that is, as a matter appertaining to the jurisdiction of the United States.
I have discussed this part of the subject, as you will have perceived, in points of view which are independent of any seriously debateable matter in the construction of the consular convention. Before leaving it allow me to say a few words on that question.
The relevant stipulations of the convention are contained in the 8th Article, as follows:—
"The respective consuls-general, vice-consuls, or consular agents, shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognisance of differences which may arise, either at sea or in port, between the captain, officers, and crew without exception, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not, on any pretext, interfere in these differences, but shall lend forcible aid to the consuls when they may ask it, to arrest and imprison all persons composing the crew whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local authority, and supported by an official extract from the register of the ship, or the list of the crew, and shall be held during the whole time of their stay in port at the disposal of the consuls .... Their release shall be granted at the mere request of the consuls made in writing. The expenses of the arrest and detention of these persons shall be paid by the consuls."
I conceive that, regarding this article as we should—that is, as a part of our public law, adapted to and cohering with other parts of our public law—all the difficulties in its construction vanish.
The national sovereignty of the United States, like that of France, is complete within its own territory. Neither nation confers ex-territoriality on foreign merchant ships within its waters. Neither nation asserts for its consuls judicial authority for the trial of crimes, except in countries without the pale of Christendom. But each nation does by the general rule of public law, and more especially by this convention, as between France and the United States, concede to the consuls of the other a certain authority of discipline, and to the ships of the other a certain privilege in its ports.
As to questions of mere civil right, internal to the ship and to her crew, even if the latter be on shore, we agree that the consuls are to have cognisance, and are to be aided by the local authorities in this respect
But now as to criminal matters?
These, it is clear, cannot be tried and judged by the American consul in Marseilles, nor by the French consul in New York.
Is the consul, for this reason, stripped of all power, and the ship herself of all immunity, in respect of persons subject to detention for any cause, either civil or criminal? I think not. I think whon the convention says that the respective consuls "shall have exclusive charge of the internal order of the merchant vessels of their nation," the word "internal" imparts perfect precision to the proposition.
What is internal in this context? Plainly it seems to me everything which does not appertain, either by the law of nations or the municipal law, to the local jurisdiction. If the acts of disorder, if the "differences," be matters of local jurisdiction, then, as questions, they are jurisdiction external to the ship.
Apply the test to this or any other case of the same principle and it reconciles all controversy. Where there is in what occurs on board the ship no infringement of the laws of France, or of the United States, there the local authority has no concern in the matter, save, in the terms of the article, to support the consul, in maintaining the authority and executing the laws of his own Government.
I do not mean to say that the local authority may not, in either case, inquire into the legality of any alleged act of detention on board the foreign ship; but on ascertaining such legality, there the local authority is bound to stop. And surely no detention could be more thoroughly lawful than that of a mutineer on his way to the place of examination and judgment.
2. As to the extradition of the thirteen men still held in prison at Marseilles—I doubt whether it is, properly, a question of extradition.
It is manifest that these men are not fugitives from the justice of the United States seeking refuge in France.
In truth, these men have either been wrongfully taken from our national custody by inadvertence of the local authority, which ought in the mere correction of error to return them to our custody; or else they are to be regarded as prisoners held by the local authority, pro tanto, acting for us under the consular convention, and bound to retransfer them on demand to the direction of the consul in order to be replaced on board the Atalanta.
But if it be a case of extradition, then they are subject to it by the terms of the convention of November 9, 1843. That convention, it is true, does not provide for the crime of revolt or mutiny on board ship; but it provides for that of " attempt to commit murder" (tentative de meurtre). That crime was committed in this case; it was committed within the putative territory of the Union; it is justiciable by the Federal courts, and by them alone; and you may, in my judgment, rightfully demand their extradition for this cause.
At the same time the convention speaks of " persons who shall be found within the territories of the other," and therefore the case comes within the letter of the convention.
It has been held in some parts of the United States that a misdemeanor is merged in a felony, and that a party guilty of the higher cannot be charged with the lower offence.
But that doctrine is losing gronnd; and it has never been held that, where an act involves two distinct felonies, the party may not be charged on either, at the election of the prosecuting officers of the Government.
I concur with Mr. Mason in opinion that the local authority of Marseilles exceeded its lawful power in the present case, in substance as well as in form.
The latter fact is implied by the new order of the Minister of Marine of June 24, 1856, regarding the visitation of foreign merchant ships in the ports of France.
This order, supplemental to those of July 26,1832, and January 24, 1855, admits that theretofore the visitation should be made with concurrence of the consul.
It is material to observe, however, that the subject-matter of such visitation, in the face of all these orders, is perquisition into acts in violation of the laws of France. No such acts are pretended in this present case.
At the same time I do entire justice to the motives of the Emperor's Government in this transaction. They are frankly stated by M. Baroche.
The guilty parties are subjects of other nations, which, like us, are in amity with France, who seeks only to discharge her public duty to each with perfect impartiality. It is objections of theirs, rather than his own, which M. Baroche brings to the notice of Mr. Mason. Allow me to submit two or three legal suggestions applicable to this point.
I do not conceive that another nation, Sardinia for instance, can, simply because these men are her subjects, interpose in the question for any purpose except to see that they be lawfully tried If a subject of Sardinia, having committed a crime in the United States, flee to France, can Sardinia justly object to his extradition? Surely not.
If indeed the Sardinian be a fugitive from the justice of Sardinia, having committed a previous crime there, and his extradition be demanded simultaneously by Sardinia and by the United States, then indeed France might be embarrassed by the conflicting appeals to her treaty engagements and her loyalty.
But this embarrassment only applies to the case regarded as a question of extradition. Taking the other and, as it seems to me, the truer view of the subject, there is no conflict of duties on the side of France; for the guilty parties have been from the beginning, and are still, in the constructive if not in the actual custody of the United States. That consideration furnishes a complete answer to the reclamations of any other Government.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing. ,
The nationality of a merchant vessel depends upon—1, the construe-Nationality of
on Search, Capture, and Prize," chap. iii.
In some countries a territorial character is allowed to foreign mer- Territorial chant vessels in their ports—limited, however, to offences committed by character o members of the same crew against one another on board the vessel: Ortolan, torn. i. 295. In France a distinction is taken between such offences where the peace of the port is not thereby disturbed, and where they are committed against persons not forming part of the officers and crew, or by any other than a person belonging to the same, or where the peace of the port is disturbed. In acts of the first class, the French courts decline jurisdiction; in the others they assert it: Wheaton, Internat. Law, s. 102. But no such distinction exists in the EDglish \ law, which exercises jurisdiction over all criminal offences committed I on board foreign merchant ships in British ports.
On the question whether the vessels of a nation on the high seas are part of the territory of that nation, see some sensible remarks by Woolsey, Internat. Law, s. 54. He says that it is unsafe to argue on the assumption that they are altogether territory, but, on the other hand, they have certain qualities resembling those of territory: (1) as against
NOTES TO CHAPTER XIV.