[S 33. Her Majesty's Government, with the expression of the hope indulged by the Government of the United States that measures will be adopted to prevent in future the exercise of jurisdiction by the local commonlaw courts of Great Britain in controversies arising between the mas ters and seamen of vessels of the United States growing out of occurrences on board their vessels on the high seas."

Mr. Fish, Sec. of State, to Mr. Schenck, Nov. 8, 1873. MSS. Inst., Great
Britain.

"Referring to my instruction of the 8th of November, 1873 (No. 476), in relation to jurisdiction assumed by the local common-law courts of Great Britain, in cases of disputes arising between the masters and crews of merchant vessels of the United States, I now transmit to you a copy of a dispatch recently received by the Department from the United States vice-consul at Hong-Kong, together with a copy of its inclosures, relating to a case between Joseph D. Ellis, the steward of the American ship Lathley Rich, and Thomas Mitchell, the master of that vessel, in which the jurisdiction complained of was assumed and exercised by the local courts of that colony. Complaints have also recently reached the Department from Melbourne and Singapore of a similar assumption of jurisdiction by the local courts of these colonies. "The laws of the United States make ample provision for the regula tion and protection of the seamen of the United States, and for the settlement of all disputes which may arise between the masters and crews of American vessels before the consuls of the United States resident in the ports of foreign countries, carefully reserving, at the same time, to the parties all the rights and remedies that are secured to them by law through the courts of the United States.

"Regulations similar in character for the government and police of their merchant marine are established by the Government of Great Britain, and, indeed, by the Governments of most, if not all, commercial nations, and this Government has never failed to recognize the effective beneficence of such domestic regulations in promoting discipline, order, and good government on vessels engaged in the merchant service. They rest upon principles of convenience, international comity, and well settled rules of public law. The claim of jurisdiction made by the local common-law courts of Great Britain, and particularly by the colonial tribunals, is conceived to be in contravention of those principles; and the exercise of it, moreover, calculated to work serious injury to the commerce of the United States in those ports where it obtains, and to the interests of the vessels which, from time to time, become the subjects of such unauthorized interference.

"Acting in the spirit of these views, this Government has on several occasions, when interference of a similar character by local courts or magistrates of this country, in the case of British vessels, has been brought to its notice by Her Majesty's Government, promptly made such complaints the subject of inquiry and correction.

!

"On the 19th of February, 1873, Her Majesty's minister at this capital brought to the attention of the Department a case, occurring at Galveston, 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
Britain; For. Rel., 1875.

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 v. 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, havo some of the attributes of territory.

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 identical 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 ar rested, 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. then, to argue on the assumption that ships are altogether territory, as It is unsafe, 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 request 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