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. แ "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. "Pending the reply of Her Majesty's Government to the dispassionate representations you have already been directed to make, I have no further observations to add to those of the consul-general than to remark that, while the verdict of the jury, convicting the man of man. slaughter, seems to have been technically right as to the degree of the crime committed, the partiality and unfairness of the proceedings, which this Government had confidently hoped would be marked by the most signal impartiality and fairness, cannot but be deduced from the result of the trial. I refer (specially to the keeping back of the testi mony of witnesses who would have shown aggravating circumstances of guilt; in the notably strong recommendation to mercy; and, more than all, in the character of the sentence, a purely nominal punishment, such as would be usually inflicted for a slight contempt of court, and unheard of before in any British court as a measure of the penalty for manslaughter, the conviction for which rested on the verdict of a jury, the prisoner having been set free within forty-eight hours, without even the form of executive clemency. These facts are here thought to justify what might otherwise seem to be the heated and indignant comments of Mr. Litchfield on the affair; and should the assumption of British jurisdiction in the case be defended by Her Majesty's Government, the circumstances adverted to would seem proper to be brought to Lord Salisbury's attention, with all the temperance of representation permitted by the facts themselves, and as justifying the ground taken, with respect to such assumption of jurisdiction, in my previous instruction No. 328." Mr. Evarts, Sec. of State, to Mr. Welsh, July 29, 1879. MSS. Inst., Great Brit.; "I have to acknowledge the receipt of your dispatch No. 17, of the 16th ultimo, inclosing a copy of the correspondence between your legation and the foreign office in relation to the case of John Anderson, who was tried in Calcutta for a crime alleged to have been committed on board a vessel of the United States on the high seas, which correspondence contains an expression of the regret of Her Majesty's Government that the action of the authorities at Calcutta in the case in question should have been governed by a view of the law which, in the opinion of Her Majesty's Government, cannot be supported. "In reply, I have to instruct you to convey to the proper quarter an expression of this Department's appreciation of the candor and goodwill with which Her Majesty's Government have considered this matter, and to say, moreover, that it has afforded this Government great satisfaction to learn that the action of the authorities of Calcutta in the case of Anderson is to be attributed to a misconception, and not to any design to question the jurisdiction of the United States in that or any similar case." Mr. Hay, Acting Sec. of State, to Mr. Lowell, July 7, 1880. MSS. Inst., Great The Government of Chili has no jurisdiction over a merchant vessel of the United States on the high seas so as to enable it to proceed against that vessel or its officers, when in a Chilian port, for cruelty on the high seas to a Chilian subject on board that vessel. Mr. Frelinghuysen, Sec. of State, to Mr. Logan, Oct. 15, 18-3. MSS. Inst., Chili. Murder or robbery committed on the high seas may be cognizable by the courts of the United States, though committed on board of a vessel not belonging to citizens of the United States, if she had no national character, but was held and possessed by pirates or persons not lawfully sailing under the flag of any foreign nation. U. S. v. Holmes, 5 Wheaton, 412. Infra, § 380, ff. Where a gun was fired from an American ship lying in a harbor of one of the Society Islands, killing a person on board a schooner belonging to the natives in the harbor, it was held by Judge Story that the act was, in contemplation of law, committed on board the foreign schooner where the shot took effeet, and that jurisdiction of the offense belonged to the foreign Government and not to the courts of the United States. Where a prisoner under such circumstances was sent home for trial, it was held that the court had no jurisdiction. U. S. v. Davis, 2 Sumner, 482. Offenses committed on the high seas, on vessels belonging exclusively to the subjects of a foreign power, are not punishable in the courts of the United States. 3 Op., 484, Grundy, 1839. Crimes committed on board a merchant ship on the high seas are triable only by the authorities of the country to which she belongs. The authorities of a foreign country may, at the instance of a consul from the country to which the ship belongs, assist in detaining the persons charged, but they cannot detain them otherwise. A fortiori, they cannot go on board the ship and rearrest them after they have been in their custody and have been returned. The citizenship of the accused does not affect the question of jurisdiction. 8 Op., 73, Cushing, 1856. See discussion of this case in Mr. Marcy's instructions to Mr. Mason, Sept. 8, 1856. MSS. Inst., France. "The courts of the United States have no jurisdiction to redress any supposed torts committed on the high seas upon the property of its citizens by a cruiser regularly commissioned by a foreign and friendly power, except where such cruiser has been fitted out in violation of its neutrality. The courts of the captors are open for redress, and an injured neutral may there obtain indemnity for a wanton or illicit capture. Nor is the jurisdiction of the neutral court enlarged by the fact that the corpus no longer continues under the control of the capturing power. The Estrella, 4 Wheat., 298." 2 Halleck's Int. Law (Baker's ed.), 208. As to piracy, see infra, §§ 380 ƒƒ. X. PORTS OPEN TO ALL NATIONS. § 34. As to non-intercourse, see infra, § 319. As to embargo and closure of ports, see infra § 320, As to neutral's duty in excluding belligerent operations, see infra, § 398. As to territorial waters in general, see supra, § 26, "It is consistent with the just principles, as it is with the interests of the United States, to receive the vessels of all countries into their ports, to whatever party belonging and under whatever flag sailing, pirates excepted, requiring of them only the payment of the duties, and obedience to the laws while under their jurisdiction, without adverting to the question whether they had committed any violation of the allegiance or laws obligatory on them in the countries to which they belonged, either in assuming such flag, or in any other respect." Mr. Monroe, Sec. of State, to Mr. De Onis, Jan. 19, 1816. MSS. For. Leg. Notes. While it was permissible, under the law of nations, for China, during the French-Chinese war, to sink obstructions in Canton River for the purpose of preventing the access of French men-of-war to Canton, such obstructions can only be retained as long as needed for belligerent purposes. Their removal after peace is required, not merely by the treaties entered into by China making Canton an open port, but by the law of nations. See infra, § 361a. Unless closed by local law, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them while allowed to remain, under the protection of the Government of the place. The implied license, under which such vessel enters a friendly port, may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality. The Exchange v. McFaddon, 7 Cranch, 116, infra, § 36. The hospitality of the ports of the United States, when a neutral, is extended equally to the vessels of each belligerent, when visiting for purposes of convenience, or when driven to take refuge from storms or a superior naval force. Mr. Clay, Sec. of State, to Mr. Tacon, Oct. 27, 1827. MSS. For. Leg. Notes. Mr. As to exemptions in cases of entrance through stress of weather, or force, see XI. MERCHANT VESSELS SUBJECT TO POLICE LAW OF PORT. § 35. [See, as to consular jurisdiction in ports, infra, § 124.] Merchant vessels in port are subject to the police law of the port. Mr. Everett, Sec. of State, to Mr. Ingersoll, Feb. 17, 1853. MSS. Inst., Great The abduction by Chilian authorities, in a Chilian port, from a United States whaling ship, of sailors claimed to be Chilians, in time of peace, and without justifiable necessity, is an act at variance with the comity of nations, for which the Chilian Government may justly be held re sponsible. Mr. Webster, Sec. of State, to Mr. Peyton, July 2, 1851. MSS. Inst., Chili. "There is no doubt of the jurisdiction of our officers and tribunals to interfere in the way of prevention or of punishment in breaches of the peace occurring in American waters upon foreign vessels. There is no reason why our police, civil or naval, should hesitate to board a British vessel for the purpose of quelling a mutiny attended with assaults upon the officers or violent resistance to the exercise of their legitimate authority in subjecting refractory seamen to temporary confinement. The difficulty, however, is supposed to arise in cases where seamen simply refuse to work, and where confinement of them would reduce the vessel to a floating jail, without the power of motion. The remedy that is supposed to be wanted is a compulsion upon the men to do their duty-in other words, to enforce a specific obligation of their contract. No officer or tribunal of the United States has the capacity to apply such a remedy except in execution of a treaty or convention, which seems necessary as the basis of laws of Congress regulating the mode of procedure. A treaty is also necessary to justify the detention here of a foreign seaman upon the order of his consul, or otherwise than as a criminal offender. "For any intervention beyond the limits thus indicated an agreement between the two Governments would seem to be requisite. I have to remark, however, that the question which I have discussed is purely a legal one, upon which I ought to reserve myself for consultation with the Attorney-General." Mr. Seward, Sec. of State, to Mr. Bruce, Mar. 16, 1866. MSS. Notes, Great |