"The Secretary of the Treasury concludes by observing that, so far as his Department is aware, the British Government has taken no steps to carry out the recommendations of the London International Statistical Institute."

Mr. Gresham, Sec. of State, to Mr. Tavera, Austrian min., March 7, 1894,
For. Rel. 1894, 48.

See, in the same sense, Mr. Gresham, Sec. of State, to Mr. Le Ghait,
Belg. min., Feb. 5, 1894, For. Rel. 1894, 53.

(2) QUESTIONS OF INTERNAL ORDER AND DISCIPLINE.

§ 205.

Consular jurisdiction depends on the general law of nations, existing treaties between the two governments affected by it, and upon the obligatory force and activity of the rule of reciprocity. French consular jurisdiction in an American port depends on the correct interpretation of the treaties existing between France and the United States, which limit it to the exercise of police over French vessels, and jurisdiction in civil matters in all disputes which may arise; and provide that such police shall be confined to the interior of the vessels, and shall not interfere with the police of our ports where the vessels shall be. They also provide that in cases of crimes and breaches of the peace the offenders shall be amenable to the judges of the country. The claim of the French envoy for the exercise of judicial power by the consul of his Government in the port of Savannah is not warranted by any existing treaties, nor by a rule of reciprocity which the Executive has power to permit to be exercised. "The principles of international law, as they are recognized in Europe, afford no warrant for the exercise of judicial power by consuls; and that the rights and duties of these functionaries depends, both for their authority and extent, upon the treaties subsisting between the governments respectively interchanging this species of commercial agents."

Berrien, At.-Gen., 1830, 2 Óp. 381.

The opinion of Mr. Berrien related to the case of an officer of the French ship Venus, who was ordered by a justice of the peace at Savannah, Georgia, to be arrested on a complaint made by a seaman of assault and battery, committed on board the ship while she lay at anchor in the roadstead. The justice also took measures to compel the attendance of seven other members of the crew as witnesses. The master of the ship, in order to avoid the interruption of his voyage, paid a sum of money for the withdrawal of the suit and defrayed all costs. M. Roux de Rochelle, the French minister, complained of the proceeding, on the ground that, as the alleged offence took place on board the vessel and the peace of the port was not endangered, the generally admitted principles of consular jurisdiction were infringed by the local authorities; and he contended that "upon this ground, and

upon that of the uniform and authoritative practice in France in
analogous cases, affecting American vessels and their crews in the
ports of that country," the owners of the Venus had a good claim to
reimbursement of expenses, and to demurrage for the detention of
the vessel, by reason of the proceedings in question. (Mr. Brent,

Acting Sec. of State, to Mr. Berrien, At. Gen., Sept. 3, 1830, 23 MS.
Dom. Let. 454.)

A copy of Mr. Berrien's opinion was communicated to M. Roux, with the statement that it was not within the competency of the Executive to admit his claim. The only treaty between the two countries, it was observed, that could give any countenance to it was the convention of 1788, which had long since expired. It was added, however, that the United States would be willing to conclude a suitable arrangement on the subject. (Mr. Van Buren, Sec. of State, to M. Roux de Rochelle, French min., Jan. 27, 1831, MS. notes to For. Leg. IV. 354.) "In the letter of Mr. Webster to Lord Ashburton, of the 1st August, 1842, the principles of the law of nations which apply to the subject were discussed with great clearness and ability. To that letter I refer you. It will be perceived that Mr. Webster does not propose the introduction of any new principle into the law of nations.' He contends that a vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected exclusively to the jurisdiction of that nation; and consequently, if those who have charge of her endeavor, in good faith, to keep her at sea, that is, within that exclusive jurisdiction, and if, contrary to their will, she be forced within another jurisdiction by stress of weather, by violence, or other necessity, she does not cease to be within the jurisdiction of her own country. In this case, however, such jurisdiction is not exclusive to all purposes. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master and owners, she and they must doubtless be answerable to the laws of the place.'

“Mr. Webster further contends that by the comity of the law of nations, and the practice of modern times, merchant vessels entering open ports of other nations for the purpose of trade, are presumed to be allowed to bring with them and to retain, for their protection and government, the jurisdiction and laws of their own country.' These, of course, extend both over persons and things, subject always to the laws of the place, in cases of crimes, contracts, &c., as above mentioned. The right here claimed is not in derogation of the sovereignty of the place where the vessels may be, but is presumed to be allowed by that sovereignty."

Mr. Upshur, Sec. of State, to Mr. Everett, Nov. 28, 1843, MS. Inst. Great
Britain, XV. 177.

The letter of Mr. Webster, cited by Mr. Upshur, related to the case of
the Creole.

"The difficulty which has arisen between you and the British authorities at Hong Kong has been duly considered and I am directed by the President to communicate to you his views there

on.

Most of the unpleasant occurrences which you have presented to the Department seem to have had their origin in the conflicting opinions between you and the British authorities as to your powers and rights as consul. You appear to have placed much reliance on the remarks of Mr. Webster in his letter to Lord Ashburton of August 1st 1842. The case he was discussing differed in an essential feature from that of the Reindeer. The Creole was taken forcibly by mutineers into a British port, and Mr. Webster seems to have considered her in a different situation from that she would have been in, had she voluntarily visited such port. If he meant to give a more general application to the rules he laid down, the authorities against him are so many and so strong as to render it impossible to sustain him. . . .

"Throughout the elaborate decision of the court in the case of the schooner Exchange, it is assumed that the jurisdiction of the country extends over a foreign merchant vessel in its harbors. There are several other cases, which announce and sustain the same principle, as to the jurisdiction of a country over a foreign merchant or private vessel in its harbor, . . . and the doctrine is approved by elementary writers. .

"There is in my mind no doubt that the State and Federal courts of this country, could if they chose to do so, and would, on any proper occasion, exercise jurisdiction over any foreign merchant vessel and its company in any of our ports, even in regard to transactions which might take place within our territory between the members of that company, and they would not yield to the claim of a foreign consul to surrender that jurisdiction as a matter of right. . . .

"It is true that France has, in this respect, made some liberal concessions in favor of private ships, but we must look to British concessions to justify the claim you asserted in the case of the Reindeer, as the transaction took place in a British port, and I have looked in vain for them. It is desirable, I think, that they should exist, particularly in remote countries, where annoyances to trade are more likely to occur by the interference of civil courts, but questions which you have raised must be settled upon the law as it is, rather than on what it ought to be. I am, however, disposed to think that the State governments of this Union would be unwilling to have the immunities of exterritoriality given to all the private or merchant ships, and their crews, which visit our numerous harbors, and we could not with propriety ask from other nations, in this respect, what we would not in turn grant to them. . . .

The manner of conducting the prosecution was apparently exceptionable, and afforded an ostensible ground of complaint. Though there is a dispute about many of the facts with respect to this point in the case, it is not denied that officers of the police went on board of the Reindeer, and, without a written warrant, took John Madison from the vessel who had shipped as carpenter, and was there confined. Unusual as this proceeding appears, it is alleged that it was authorized by an existing law or ordinance, to which a particular reference was made, but a copy of it is not found among the papers sent to this Department, and I am not, therefore, able to say that it is not, in effect, what it is alleged to be.

66

Having sovereign dominion over the place, British authority would be competent to make an ordinance conferring on police officers the right to enter a vessel in a British port and make an arrest of a person charged with an offence on board without any written process. for that purpose.

"The proceedings, in this respect, appear to have been extraordinary, yet I am not able to pronounce them illegal.

If obliged to yield the point, as I think we are, that the Reindeer and her crew, while in the harbor of Hong Kong, were subject to the civil authority of the place, we cannot question its right to take cognizance of the charge of Madison against Captain Nichols for the alleged battery and false imprisonment. I do not, therefore, perceive upon what ground the objection, which was taken in his behalf. to the jurisdiction of the court, can be sustained.

"It is to be regretted that Captain Nichols did not recognize the authority of the court and present to its consideration his defence. Had he taken that course and shown, as probably he could, that he had in his treatment of Madison done nothing more than proper discipline required, all subsequent unpleasant occurrences might have been avoided. . . .

"In the foregoing remarks I have considered the questions raised in this case with reference to strict international rights, for in this light only could they be properly regarded when made the subject of a national grievance for which redress is to be demanded.

"Though the strict right of the civil authority at Hong Kong to entertain Madison's complaint and investigate the charge against Captain Nichols cannot be successfully questioned, yet inasmuch as the affair related to the discipline on board of a foreign vessel, and the offence, if any there were, was an abuse of the captain's power, courtesy and national comity should have led the authorities at Hong Kong to decline to act in the case, referring the matter to the government to which the vessel belonged. Whether Captain Nichols had or had not exceeded the limits of the powers with which he was

H. Doc. 551-vol 2—19

invested, as captain of the Reindeer, over the crew, in his treatment of Madison, might with great propriety have been left to the determination of the courts of the United States. Had the case been put on this ground, it is to be inferred from the letter of W. T. Mercer, esq., colonial secretary, of the 25th of October last, that the object you had in view might have been attained, but your denial of the jurisdiction of the civil court at Hong Kong brought up the question of strict right, and it appears to the President that the decision cannot be regarded as erroneous, though the consequences which have resulted from the interposition of the court are regretted."

Mr. Marcy, Sec. of State, to Mr. Keenan, consul at Hong Kong, April 14, 1856, 21 Disp. to Consuls, 567, citing Schooner Exchange . McFaddon, 7 Cranch, 135; Story, Conflict of Laws; Ortolan, Dipləmatie de la Mer; Phillimore, Int. Law.

"This Government does not apply the doctrine of extraterritoriality to its private or merchant ships in foreign ports, except in cases where it has been conceded by treaty or established usage, and it does not pretend that it has been so conceded in criminal cases to American merchant vessels in British ports. . . .

...

"While each country can unquestionably exercise jurisdiction in its own ports over the private or merchant vessels of the other, it is presumed there is a mutual disposition on both sides not to exert it in a way which will interfere with the proper discipline of the ships of either nation. If every complaint of any individual of the crew of a vessel against the officers for ill-treatment is to be taken up by the civil authorities on shore, and these officers prosecuted as criminals, commercial intercourse will be subjected to very great annoyance and serious detriment."

Mr. Marcy, Sec. of State, to Mr. Crampton, Brit. min., Apr. 19, 1856, MS.
Notes to Great Britain, VII, 524.

In 1856 the American merchant vessel Atalanta, while on a voyage from Marseilles to New York, was obliged by the mutiny of her crew to put back to the former port. The revolt took place on the high seas outside the municipal jurisdiction of any government. On the return of the vessel to Marseilles the seamen were, on application of the United States consul, imprisoned by the local authorities. on shore. Some of them were afterwards released with the assent of the consul, while six were, on his application, restored to the vessel for conveyance to the United States. Subsequently, in spite of the consul's remonstrances, the local authorities went on board the vessel, resumed possession of the prisoners, and replaced them in confinement on shore. The nationality of these prisoners does not certainly appear, but the tenor of the correspondence indicates that they were not citizens either of the United States or of France. It was agreed that the case did not come within the consular conven