Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Seward to Mr. McCook.
Sir: I transmit to you herewith a copy of the Attorney General’s opinion on the legality of certain municipal proceedings in the kingdom of Hawaii, by which seamen were released from their service on two American ships, the Josephine and the Blue Jacket. The subject was brought to the notice of the department by the consul of the United States at Honolulu, who, in the case of one of the seamen, had dismissed his complaint, declaring that he had been lawfully shipped. The seaman, notwithstanding this decision of the consul, was discharged from the ship by one of the judges of the supreme court of the kingdom. You will see that according to the opinion of the Attorney General the legality of this case turns entirely on the question whether the seaman was or was not a subject of the kingdom of Honolulu. In your remonstrances and arguments with the Hawaiian government you will adopt the enclosed opinion as your basis, keeping in view the circumstances of the case.
I am, sir, your obedient servant,
Edward M. McCook, Esq., &c., &c., &c.
[Untitled]
Sir: I have the honor to acknowledge the receipt of your letter of the 4th of May, together with the despatches of Alfred Caldwell, Esq., consul for the United States at Honolulu. The consul complains that the Hawaiian courts have been guilty of breaches of the treaty between the United States and his Majesty the King of the Hawaiian Islands.
The first case is this:
Four seamen were lawfully shipped at New Bedford in the United States, on the American ship Josephine, for a whaling voyage, not exceeding four years in duration, and back again to New Bedford. One of the judges of the supreme court of the kingdom discharged the seamen from the ship, and released them from the obligations of their contract, assuming jurisdiction because the four seamen were subjects of the kingdom. The four seamen had made no application to the consul for an exercise of his jurisdiction and power.
The second case is:
The American ship Blue Jacket went to the port of Honolulu for the purpose of taking from there a cargo of oil to New Bedford. A seaman on the boat by the name of Thomas Duane, but calling himself Burns, applied to the consul to be discharged from the vessel, because he had not been lawfully shipped. The consul notified the captain of the Blue Jacket, had the witnesses before him, heard the case regularly, and dismissed the complaint, on the ground that Duane or Burns had been lawfully shipped on said vessel at San Francisco for the voyage to New Bedford.
One of the judges of the supreme court of the kingdom, notwithstanding he was informed of the proceedings and judgment of the consulate court, assumed jurisdiction and discharged the seaman. After the seaman was discharged he sued the captain in a territorial court upon a claim of $3,000. The despatch does not state whether Burns (or Duane) was or not a citizen of the United States.
By the 10th article of the treaty between the United States and the Hawaiian kingdom it is agreed that “each of the two contracting parties may have in the ports of the other, consuls, vice-consuls, and commercial agents of their own appointment, who shall enjoy the same privileges and powers with those of the most favored nations. * * * * The said consuls, vice-consuls, and commercial agents are authorized to require the assistance of the local authorities for the search, arrest, detention, and imprisonment of the deserters from the ships of war and the merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges, and officers, and shall in writing demand the said deserters, proving by the exhibition of the registers of the vessels, or the rolls of the crews, or by other official documents, that such individuals formed part of the crews; and this reclamation being thus substantiated, the surrender shall not be refused.”
This treaty was concluded and signed at Washington on the 20th day of December, 1849.
It is unnecessary to discuss the question whether this treaty conferred any judicial power upon the consuls of the United States in the Hawaiian kingdom, because it is agreed that the consuls of the two contracting parties shall enjoy the same privileges and powers with those of the most favored nations; and if, therefore, by treaty with any other nation either of the [Page 489] parties should confer judicial power upon consuls, then by the intention and express words of the treaty between the United States and the Hawaiian kingdom, the consuls mentioned therein were to have like powers.
Such power was conferred by the 21st article of the treaty entered into between the Emperor of France and the King of the Sandwich Islands. In that treaty it is stipulated that the “respective consuls shall be exclusively charged with the internal order on board of the merchant vessels of their nations, and shall alone take cognizance of all the crimes, misdemeanors and other matters of difference in relation to said internal order which may supervene between the master, the officers, and the crew, provided the contending parties be exclusively French or Hawaiian subjects, and the local authorities shall not be allowed therein to interfere, unless by the approval or consent of the consuls, or in cases where the public peace and tranquillity are disturbed or endangered.”
From this article of the treaty between France and the Sandwich Islands, the judicial power of the consul of the United States at Honolulu is derived and limited. It is not known that the Hawaiian kingdom has any treaty with any other government granting larger powers to consuls. In respect to consular powers France has been the most favored nation.
What, then, are the powers granted by this treaty ?
1st. To give the consul jurisdiction. If a French vessel be in a Hawaiian port the parties must all be French subjects, and if a Hawaiian vessel be in a French port the parties must all be Hawaiians. This article having become a part of the treaty between the United States and the Sandwich Islands, it conferred judicial power on the consuls of the United States only where the contending parties are exclusively citizens of the United States. If it should be shown that either party was not a citizen of the United States, the local courts and not the consul would alone have jurisdiction.
2d. Where the parties to the controversy are all citizens of the United States, and the controversy has relation to the internal order of a vessel of the United States in a Hawaiian port, the local authorities cannot interfere therein, except by the approval or consent of the consul, or in cases where the public peace and tranquillity are disturbed or endangered.
And that brings us to consider whether the validity or invalidity of the enlistment on the vessel is a matter relating to the internal order of the vessel. In the treaty between the United States and the Sandwich Islands it is directly agreed that upon an exhibition of the registers of the vessel, or the rolls of the crews, or by other official documents showing that a seaman belongs to the vessel, the Hawaiian authorities shall surrender the seaman as a deserter. So far as desertion is concerned, the plain language of the treaty precludes the Hawaiian courts from going behind the evidences mentioned in the treaty. If a vessel of the United States shall enter a Hawaiian port, and a seaman desert whose name is regularly borne on the ship’s papers, he must be surrendered at the instance of the consul. The court there cannot inquire whether his shipment is regular or irregular. This feature of the treaty rests upon the idea that the vessels of the United States going into the Sandwich Islands have lawfully enlisted crews, and that if there is to be any controversy about the validity of the contract of shipment, the parties are remitted to the courts of the United States.
Now, when the consuls of the United States were invested with judicial power under the treaty between France and the Sandwich Islands, the treaty between the United States and the Sandwich Islands was not affected thereby in any particular. The judicial authorities of the islands and the consuls of the United States were still bound to regard all persons on vessels of the United States, and whose names appeared on the boat’s papers, as parts of the crew.
But in the treaty between the United States and the Sandwich Islands the papers are only made conclusive in cases of desertion. It is not certain but that under the treaty a seaman could in any other case but desertion appeal to the courts of the island to be released from his contract. Upon that question I have no opinion. The provisions of that treaty are referred to simply to show that in cases of desertion the courts of the island are required to surrender deserters from vessels of the United States, and that in such cases they cannot look behind the papers of the boat.
In making this agreement in regard to deserters, the two governments announce the principle that the question whether the shipment of the seaman was lawful or not is one which should be remitted to the authorities of the country to which the vessel belongs.
In the treaty with France consuls are made judicial officers, and given cognizance of all the crimes, misdemeanors, and other matters of difference in relation to the internal order of the vessel which may supervene between the master, the officers, and the crew. The question whether a seaman is bound to fulfil the obligations imposed by the shipping articles is certainly a matter of difference between the master and one of the crew; the fact must be first determined that he is of the crew, before the consul can take jurisdiction; until the fact is made manifest that he is of the crew, no rules in regard to the internal order of the vessel can be enforced. Upon the question whether he is or not of the crew depends all the power and authority of the consul.
To say that the consul can decide all questions concerning the internal order of the vessel, except the question whether the man is or not of the crew, is in effect destroying his jurisdiction, making it of no value, by depriving him of the power to determine conclusively the very question upon which all order in the vessel can be supported. Unless consuls have the power to decide, and to decide without interference from the local courts, who compose the [Page 490] crew, it seems to me that all their judicial powers are idle. It is a question concerning the internal order of the vessel, because upon it depends all right to impose and enforce rules for the government of the crew, and each member of the crew. If such is not the case the consuls could not rightfully take cognizance of any case until the local courts had passed upon the validity of the shipping articles, and any and every seaman could arrest the proceedings of the consuls by pleading that he had signed when he was drunk, or had been coerced by force, or induced by fraud to do so.
Considering, then, the treaty between the United States and the Hawaiian kingdom, and the treaty between the Emperor of France and the same kingdom, I am of the opinion that the consular courts of the United States at Honolulu have the right and power, and without interference from the local courts, to determine, as between citizens of the United States, who compose the crew of an American ship.
From what I have said it necessarily follows that in the case of the four seamen on board the Josephine, they being subjects of the Hawaiian kingdom and not deserters, the local courts had jurisdiction; and that in the case of the Blue Jacket, as it must be presumed that Burns (or Duane) being on an American vessel was a citizen of the United States, the local court had not jurisdiction. Upon its appearing to the local court that it was a difference between seamen—all American citizens—and that it concerned the internal order of a merchant vessel of the United States, the parties should have been referred to the American consul. This seaman had applied to the consul for redress; his case had been heard and his complaint dismissed. That fact seems to have been known to the local court which discharged him.
It seems to me to have been an unlawful proceeding, and a violation of the treaty.
With great respect, your obedient servant,
Hon. William H. Seward, Secretary of State.