Distinction between public and private vessels.
§ 103g. Merchant vessels in foreign ports.
22
APPENDIX.
Ortolan: "Règles Internationales et Diplomatiques de la Mer," liv. ii, chap. xiv, page 301.
"A l'égard des navires de commerce, nous savons que lorsqu'ils se trouvent dans les eaux territoriales d'un Etat étranger, ils ne sont exempts de la police et de la juridiction locales que pour les faits passés à bord qui n'intéressent ni la tranquillité du port ni des personnes étrangères à l'équipage. Pour tous les autres faits ils restent soumis à cette police et à cette juridiction. D'où il suit que l'autorité locale a le droit de se transporter sur ces navires, d'y faire la poursuite, la recherche, et l'arrestation des personnes qui se sont rendues coupables, soit à terre, soit même à bord, de faits passibles de la justice territoriale : sauf l'obligation de bon procédé, qui doit toujours être observée, de donner avis préalable de cette visite, soit au Consul, soit en rade, au Commandant des forces navales militaires dont relève le navire de commerce en question."
Wheaton: "International Law," Part II, §101. (Dana's Edition. 1866.)
"Section 101. According to the judgment of the Supreme Court of the United States, where, without Treaty, the ports of a nation are open to the public and private ships of a friendly Power, whose subjects have also liberty, without special license, to enter the country for business or amusement, a clear distinction was to be drawn between the rights accorded to private individuals, or private trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation.
"When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other; or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects, then, passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.
"But the situation of a public armed ship was, in all respects, different. She constitutes a part of the military force of her nation, acts under the immediate and direct command of the Sovereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without seriously affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed, and it seemed to the Court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign, within whose territory she claims the rites of hospitality."
Wheaton: "Elements of International Law," page 141. (Boyd's Edition. 1878.)
"A merchant vessel is not in the same position as a ship of war. Every State claims to exercise jurisdiction over its own merchant vessels wherever they are, and even when they are in the waters of another State. But when in a foreign port they must also obey the laws of the country to which the port belongs.* They are thus at the same time subject to two concurrent systems of law. Any State may decline to exercise jurisdiction over foreign merchant vessels in its harbours to whatever extent it pleases, as is the case with France; but the right nevertheless exists, and might be resumed on due notice being given. Thus, a claim by the local officers of France to board the ship, search her, and take out of her any one who has become amenable to the local laws, could not lawfully be resisted or disputed after such due notice.”*
Forsyth: "Cases and Opinions on Constitutional Law," page 419.
The nationality of a merchant vessel depends upon-1, the construction or origin of the vessel; 2, the owners to whom it belongs; 3, the captain, and officers, and crew: Ortolan, tom. i. 180; see Wildman on Search, Capture, and Prize, chap. iii.
In some countries a territorial character is allowed to foreign merchant vessels in their ports--limited, however, to offences committed by members of the same crew against one another on board the vessel: Ortolan, tom. 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, International Law, s. 102. But no such distinction exists in the English law, which exercises jurisdiction over all criminal offences committed 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, International 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 their crews on the high seas; (2) as against foreigners who are excluded on the high seas from any act of sovereignty over them, just as if they were part of the soil of their country. Vattel considers ships on the high seas as part of a nation's territory : Liv. i. c. 19, s. 216; ii. c. 7, s. 80. As to ships of war, they are, even in foreign ports, exempt from this local jurisdiction. It seems now established, both in England and America, that no vessel or other property used by the Government for public purposes, whether those purposes be military, fiscal, or of police, are subject to judicial proceedings without the consent of the Government? Wheaton, International Law, s. 63, note 63 (8th edit.): see 'The Lord Hobart,' 2 Dods. Adm. 103; 7 Attorney-General's Opinions, 122. Woolsey observes (International Law, s. 54): 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.'
"In R. v. Lopez, 27 L. J. (M. C.) 49, it was said, arguendo, by the Counsel for the Crown, that it is a general principle of international law that a ship, public or private, on the high seas is, for the purpose of jurisdiction over crimes, a part of the territory of the country to which it belongs, and that a foreigner going voluntarily on board an English ship, and serving as one of her crew, is as amenable as a British subject on board the ships, and, like a British subject, would be liable in this country for a crime by statute 28 Hen. VIII, c. 15, and 7 and 8 Vict. c. 2: see notes to Chapter VII on Extra-Territorial Jurisdiction, p. 233. And it was contended that the same principle governs the law of America and France, in support of which the following authorities were cited: The United States v. Palmer, 3 Wheat. Rep. 609; The United States v. Holmes, 5 Ibid. 112; Vattel, book i. c. 19, s. 216; Felix, Traité du Droit International Privé, ss. 544, 573; 2 Ortolan, Règles Internationales de la Mer; R. v. Depardo, 1 Taunt 26; R. v. Serva, 1 Den, C. C. 104. In R. v. Lesley, 29 L. J. (M. C.) 101, it was said, per cur. It is clear that an English ship on the high seas, out of any foreign territory, is subject to the laws of England; and persons, whether foreign or English, on board such ship are as much amenable to English laws as they would be on English soil, The same principle has been laid down by foreign writers on international law.'
They went on board an English ship (of war), which for the purpose may be considered a floating island, and in that ship they became subject to the English laws alone per Holroyd, J., Forbes v. Cochrane, 2 B. & C. 464; and see per Byles, J., in R. v. Anderson, 11 Cox C. C. 205.
"But although merchant ships on the high seas have some of the attributes of territory, when they arrive in a foreign port they have no privilege, and are considered merely as the property of aliens.
"The Court of Admiralty has jurisdiction in an action brought by a British subject against a foreign ship for a collision in foreign waters: The Griefswald,' Swabey, Adm. 430,"
Report on Fugitive Slaves, 1876, p. 26.
23
184
Distinction be- tween public and private vessels.
§ 103g. Merchant vessels in foreign ports.
22
22
APPENDIX.
Ortolan: "Règies Internationales et Diplomatiques de la Mer," liv. ii, chap. xiv, page 301.
"A l'égard des navires de commerce, nous savons que lorsqu'ils se trouvent dans les eaux territoriales d'un Etat étranger, ils ne sont exempts de la police et de la juridiction locales que pour les faits passés à bord qui n'intéressent ni la tranquillité du port ni des personnes étrangères à l'équipage. Pour tous les antres faits ils restent soumis à cette police et à cette juridiction. D'où il suit que l'autorité locale a le droit de se transporter sur ces navires, d'y faire la poursuite, la recherche, et l'arrestation des personnes qui se sont rendues coupables, soit à terre, soit même à bord, de faits passibles de la justice territoriale : sauf l'obligation de bon procédé, qui doit toujours être observée, de donner avis préalable de cette visite, soit au Consul, soit en rade, au Commandant des forces navales militaires dont relève le navire de commerce en question."
Wheaton: "International Law," Part II, $101. (Dana's Edition. 1866.)
"Section 101. According to the judgment of the Supreme Court of the United States, where, without Treaty, the ports of a nation are open to the public and private ships of a friendly Power, whose subjects have also liberty, without special license, to enter the country for business or amusement, a clear distinction was to be drawn between the rights accorded to private individuals, or private trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation.
"When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other; or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects, then, passing into foreign countries, are not employed by bim, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.
"But the situation of a public armed ship was, in all respects, different. She con- stitutes a part of the military force of her nation, acts under the immediate and direct command of the Sovereign, is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without seriously affecting his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed, and it seemed to the Court ought to be construed, as containing an exemption from the jurisdiction of the Sovereign, within whose territory she claims the rites of hospitality."
Wheaton: "Elements of International Law," page 141. (Boyd's Edition. 1878.)
"A merchant vessel is not in the same position as a ship of war. Every State claims to exercise jurisdiction over its own merchant vessels wherever they are, and even when they are in the waters of another State. But when in a foreign port they must also obey the laws of the country to which the port belongs.* They are thus at the same time subject to two concurrent systems of law. Any State may decline to exercise jurisdiction over foreign merchant vessels in its harbours to whatever extent it pleases, as is the case
* R. v. Anderson, L. R. 1 C. C. R. 161; R. v. Sattler, D. & B. C. C. 525; R. v. Lesley, 1 Bell, C. C. 220. Boyd, The Merrtant Shipping Laws," p. 438.
23
with France; but the right nevertheless exists, and might be resurned on due notice being given. Thus, a claim by the local officers of France to board the ship, search her, and take out of her any one who has become amenable to the local laws, could not lawfully be resisted or disputed after such due notice.”*
Forsyth: "Cases and Opinions on Constitutional Law," page 419.
The nationality of a merchant vessel depends upon-1, the construction or origin of Nationality of the vessel; 2, the owners to whom it belongs; 3, the captain, and officers, and crew: ships. Ortolan, tom. i. 180; see Wildman on Search, Capture, and Prize,' chap. iii.
In some countries a territorial character is allowed to foreign merchant vessels in Territorial their ports--limited, however, to offences committed by members of the same crew against character of ships. one another on board the vessel: Ortolan, tom. 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, International Law, s. 102. But no such distinction exists in the English law, which exercises jurisdiction over all criminal offences committed 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, International 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 their crews on the bigh seas; (2) as against foreigners who are excluded on the high seas from any act of sovereignty over them, just as if they were part of the soil of their country. Vattel considers ships on the high seas as part of a nation's territory : Liv. i. c. 19, s. 216; ii. c. 7, s. 80. As to ships of war, they are, even in foreign ports, exempt from this local jurisdiction. It seems now established, both in England and America, that no vessel or other property used by the Government for public purposes, whether those purposes be military, fiscal, or of police, are subject to judicial proceedings without the consent of the Government? Wheaton, International Law, s. 63, note 63 (8th edit.): see 'The Lord Hobart,' 2 Dods. Adın. 103; 7 Attorney-Generals Opinions, 122. Woolsey observes (International Law, s. 54): 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 he met at sea; it now becomes property, and nothing
more.'
"In R. v. Lopez, 27 L. J. (M. C.) 49, it was said, arguendo, by the Counsel for the Crown, that it is a general principle of international law that a ship, public or private, on the high seas is, for the purpose of jurisdiction over crimes, a part of the territory of the country to which it belongs, and that a foreigner going voluntarily on board an English ship, and serving as one of her crew, is as amenable as a British subject on board the ships, and, like a British subject, would be liable in this country for a crime by statute 28 Hen. VIII, c. 15, and 7 and 8 Vict. c. 2: see notes to Chapter VII on Extra-Territorial Jurisdiction, p. 233. And it was contended that the same principle governs the law of America and France, in support of which the following authorities were cited: The United States v. Palmer, 3 Wheat. Rep. 609; The United States v. Holmes, 5 Ibid. 112; Vattel, book i. c. 19, s. 216; Felix, Traité du Droit International Privé, ss. 544, 573; 2 Ortolan, Règles Internationales de la Mer; R. v. Depardo, 1 Taunt 26; R. v. Serva, 1 Den, C. C. 104. In R. v. Desley, 29 L. J. (M. C.) 101, it was said, per cur. It is clear that an English ship on the high seas, out of any foreign territory, is subject to the laws of England; and persons, whether foreign or English, on board such ship are as much amenable to English laws as they would be on Faglish soil, The same principle has been laid down by foreign writers on international law.'
They went on board an English ship (of war), which for the purpose may he considered a floating island, and in that ship they became subject to the English laws alone per Holroyd, J., Forbes v. Cochrane, 2 B. & C. 464; and see per Byles, J., in R. v. Anderson, 11 Cox C. C. 205.
"But although merchant ships on the high seas have some of the attributes of territory, when they arrive in a foreign port they have no privilege, and are considered merely as the property of aliens.
"The Court of Admiralty has jurisdiction in an action brought by a British subject against a foreign ship for a collision in foreign waters: The Griefswald,' Swabey, Adm. 430,"
+
Report on Fugitive Slaves, 1876, p. 26.
184
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