Law of France, as

emption of private vessels from the local

The maritime jurisprudence of France, in respect to

to the ex foreign private vessels entering the French ports for the purposes of trade, appears to be inconsistent with the principles established in the above judgment of the jurisdiction. Supreme Court of the United States; or, to speak more correctly, the legislation of France waives, in favor of such vessels, the exercise of the local jurisdiction to a greater extent than appears to be imperatively required by the general principles of international law. As it depends on the option of a nation to annex any conditions it thinks fit to the admission of foreign vessels, public or private, into its ports, so it may extend, to any degree it may think fit, the immunities to which such vessels, entering under an implied license, are entitled by the general law and usage of nations.

The law of France, in respect to offences and torts committed on board foreign merchant vessels in French ports, establishes a twofold distinction between:

1. Acts of mere interior discipline of the vessel, or even crimes and offences committed by a person forming part of its officers and crew, against another person belonging to the same, where the peace of the port is not thereby disturbed.

2. Crimes and offences committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other, if the peace of the port is thereby disturbed.

In respect to acts of the first class, the French tribunals decline taking jurisdiction. The French law declares that the rights of the power, to which the vessel belongs, should be respected, and that the local authority should not interfere, unless its aid is demanded. These acts, therefore, remain under the police and jurisdiction of the State to which the vessel belongs. In respect to those of the second class, the local jurisdiction is asserted by those tribunals. It is based on the principle, that the protection accorded to foreign merchantmen in the French ports cannot divest the territorial jurisdiction, so far as the interests of the State are affected; that a vessel admitted into a port of the State is of right subjected to the police regulations of the place; and that its crew are amenable to the tribunals of the country for offences committed on board of it against per

sons not belonging to the ship, as well as in actions for civil contracts entered into with them; that the territorial jurisdiction for this class of cases is undeniable.

It is on these principles that the French authorities and tribunals act, with regard to merchant ships lying within their waters. The grounds upon which the jurisdiction is declined in one class of cases, and asserted in the other, are stated in a decision of the Council of State, pronounced in 1806. This decision arose from a conflict of jurisdiction between the local authorities of France and the American consuls in the French ports, in the two following cases:

The first case was that of the American merchant vessel, The Newton, in the port of Antwerp; where the American consul and the local authorities both claimed exclusive jurisdiction over an assault committed by one of the seamen belonging to the crew against another, in the vessel's boat. The second was that of another American vessel, The Sally, in the port of Marseilles, where exclusive jurisdiction was claimed both by the local tribunals and by the American consul, as to a severe wound inflicted by the mate on one of the seamen, in the alleged exercise of discipline over the crew. The Council of State pronounced against the jurisdiction of the local tribunals and authorities in both cases, and assigned the following reasons for its decision :

"Considering that a neutral vessel cannot be indefinitely regarded as a neutral place, and that the protection granted to such vessels in the French ports cannot oust the territorial jurisdiction, so far as respects the public interests of the State; that, consequently, a neutral vessel admitted into the ports of the State is rightfully subject to the laws of the police of that place where she is received; that her officers and crew are also amenable to the tribunals of the country for offences and torts1 committed by them, even on board the vessel, against other persons than those belonging to the same, as well as for civil contracts made with them; but that, in respect to offences and torts committed on board the vessel, by one of the officers and crew against another, the rights of the neutral power ought to be

The term used in the original is délits, which includes every wrong done to the prejudice of individuals, whether they be délits publics or délits privés.

respected, as exclusively concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection is demanded, or the peace and tranquillity of the port is disturbed; the Council of State is of opinion that this distinction, indicated in the report of the Grand Judge, Minister of Justice, and conformable to usage, is the only rule proper to be adopted, in respect to this matter; and applying this doctrine to the two specific cases in which the consuls of the United States have claimed jurisdiction; considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other case was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen, for having made use of the boat without leave; is of opinion that the jurisdiction claimed by the American consuls ought to be allowed, and the French tribunals prohibited from taking cognizance of these cases."1 (a)

Exemption of public or

Whatever may be the nature and extent of the exprivate ves- emption of the public or private vessels of one State

1 Ortolan, Régles Internationales de la Mer, tome i. pp. 293-298. Appendice, Annexe H. P. 441.

(a) [See Rev. Etr. & Fr. N. S. t. ii. p. 206, for a review of Ortolan's work, by Mr. Wheaton, in which this subject is discussed. The Convention of February 23, 1853, Art. 8, between France and the United States, vide infra, adopts, as to acts of interior discipline, the principle of the French law, and submits all such matters to the consuls, to the exclusion of the local authorities.

As to whether the local authorities, in a foreign port, have a right to interfere with the condition of persons or things, on board of a merchant vessel, as established by the laws of the country to which it belongs, and especially whether they can do so when such vessel has been brought into the port by unlawful force, see the correspondence between Mr. Webster and Lord Ashburton, in the case of The Creole. Webster's Works, vol. vi. p. 303, and the note of the Attorney-General, Mr. Legaré, to Lord Ashburton, July 20, 1842. Opinions of Attorneys-General, vol. iv. p. 98. Also an article on the same case by Mr. Wheaton. Rev. Étr. et Franç. tom. ix. p. 345.

No adjustment having been made, during the negotiations of 1842, of the cases arising out of the liberation of American slaves, in the Bahama and Bermuda islands, by their respective authorities, from vessels forced in to escape shipwreck, or actually shipwrecked, they have been brought before the joint commission, now sitting in London, under the Convention of February 8, 1853, (United States Treaties, 1853-4, p. 110,) for the settlement of all claims of the subjects of Great Britain on the government of the United States, and of the citizens of the United

the local

does not

extend to

of aggres

from the local jurisdiction in the ports of another, it is sels from evident that this exemption, whether express or implied, jurisdiction can never be construed to justify acts of hostility committed by such vessel, her officers, and crew, in viola- justify acts tion of the law of nations, against the security of the sion against State in whose ports she is received, or to exclude the of the State. local tribunals and authorities from resorting to such measures of self-defence as the security of the State may require.

the security

This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian steam-vessel, The Carlo Alberto which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents, with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin ainé, Procureur-Général, reversed the decision of the inferior tribunal, releasing the prisoners taken on board the vessel, upon the following grounds:

1. That the principle of the law of nations, according to which a foreign vessel, allied or neutral, is considered as forining part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, or neutral; as if, for example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the State, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pretext of distress.

2. That supposing such allegation of distress be founded in fact, it could not serve as a plea to exclude the jurisdiction of the local tribunals, taking cognizance of a charge of high treason

States on that of Great Britain, presented to either government for its interposition with the other, since the treaty of Ghent, of 24th of December, 1814. The American and English commissioners not being able to agree on these claims, they have been referred, according to the provisions of the treaty, to the umpire, whose decision is final. Letter of the Commissioner of the United States, Mr. Upham, September 27, 1854.]

against the persons found on board, after the vessel was compelled to put into port by stress of weather.1

The ex

So also it has been determined by the Supreme Court emption of of the United States, that the exemption of foreign pubpublic ships from the lic ships, coming into the waters of a neutral State, from local jurisdiction does the local jurisdiction, does not extend to their prize ships, or goods captured by armaments fitted out in its ports, prize goods in violation of its neutrality, and of the laws enacted to violation of enforce that neutrality.

not extend

to their

taken in

the neutral

ity of the

country into

Such was their judgment in the case of the Spanish which they ship Santissima Trinidad, from which the cargo had are brought. been taken out, on the high seas, by armed vessels commissioned by the United Provinces of the Rio de la Plata, and fitted out in the ports of the United States in violation of their neutrality. The tacit permission, in virtue of which the ships of war of a friendly power are exempt from the jurisdiction of the country, cannot be so interpreted as to authorize them to violate the rights of sovereignty of the State, by committing acts of hostility against other nations, with an armament supplied in the ports, where they seek an asylum. In conformity with this principle, the court ordered restitution of the goods claimed by the Spanish owners, as wrongfully taken from them.2

§ 10. Jurisdiction of the State

4. Both the public and private vessels of every nation, on the high seas, and out of the territorial limits of any over its pub- other State, are subject to the jurisdiction of the State

lic and pri

vate vessels to which they belong.

on the high

seas.

Vattel says that the domain of a nation extends to all its just possessions; and by its possessions we are not to understand its territory only, but all the rights (droits) it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory. Grotius holds that sovereignty may be acquired over a portion of the sea, ratione personarum, ut si classis qui maritimus est exercitus, aliquo in loco

1 Sirey, Recueil général de Jurisprudence, tome xxxii. Partie I. p. 578. M. Dupin ainé has published his learned and eloquent pleading in this memorable case, in his Collection des Réquisitoires, tome i. p. 447.

2 Wheaton's Rep. vol. vii. p. 352. The Santissima Trinidad.