Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. McCook to Mr. Seward.
Sir: I have the honor to acknowledge the receipt of your despatch No. 6, dated September 24th, 1866. I also have the honor to enclose a copy of my despatch No. 5, dated November 10th, 1866, addressed to the minister of foreign affairs of this kingdom, in relation to the case of the American ship Blue Jacket.
I enclose also a copy of a communication addressed to the Russian consul at this port, refusing to receive an American seaman who committed murder in the Russian possessions in North America, and was sent here by Governor Mak-zontoff to be turned over to the United States authorities for trial.
Hoping my action in both cases may meet with your approbation, I have the honor to be your most obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Mr. McCook to Mr. De Varigny.
Sir: I have the honor to call your attention to despatch No. 16, dated February 14, 1866, in which my predecessor, Mr. McBride, earnestly protested against the exercise by the courts of the kingdom of Hawaii of jurisdiction in the case of one Thomas Duane, alias Burns, a seaman shipped at San Francisco on the United States merchant ship Blue Jacket, and discharged by one of said courts in the port of Honolulu. As the government of his Majesty paid no attention to this protest, the whole matter was laid before the government of the United States, and, in accordance with instructions received from the honorable Secretary of State, I have the honor to again call the attention of his Majesty’s government to the questions [Page 493] involved. Burns (or Duane) was a citizen of the United States, appearing upon the papers of the Blue Jacket, an American ship, as one of the crew, having been shipped at San Francisco.
By the 10th article of the treaty between the United States and the Hawaiian kingdom, it is agreed “that each of the 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.” Said consuls, &c., 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 crew, and this reclamation being thus substantiated, the surrender shall not be refused.” The wording of this section is most explicit, and I submit that the only construction which can be placed upon its meaning is that the “register of a vessel or the rolls of the crews” is final and conclusive evidence as to who constitute the crew; is all and the only evidence required to establish the fact, and, as such, must be considered by the authorities of the country.
The 21st article of the treaty entered into between the Emperor of France and the King of the Hawaiian islands stipulates “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 masters, the officers, and the crew, provided the contending parties be exclusively French or Hawaiian, and the local authorities shall not be allowed to interfere unless by the approval of the consuls, or in cases where the public peace and tranquillity are disturbed or endangered.” The United States consul derives his judicial power in part from this section of the French treaty, because by the tenth (10th) section of the treaty between the United States and Hawaii, “consuls, vice-consuls, and commercial agents of the United States shall enjoy the same privileges and powers with those of the most favored nations.” In respect to consular powers France has been the most favored nation, and the consuls of the United States are invested with the same powers conceded to the consuls of France; consequently, in the case of the Blue Jacket, a case simply involving the question whether a seaman, a citizen of the United States, shipped on board a vessel of the United States, was or was not one of the crew, neither party (ship-master nor sailor) being subjects of the Hawaiiau government, the United States consul, and no person else, had the right to decide the whole matter.
The parties to the controversy, it is conceded, were all citizens of the United States.
The register of the Blue Jacket and the roll of the crew proved that Duane (or Burns) was one of the crew, his name appearing on the papers of the ship as such.
Even if the courts of these islands had jurisdiction at all, this register or roll was the only evidence they had the right to regard under the provisions of the tenth section of the treaty between Hawaii and the United States.
As the court disregarded this evidence, and discharged the seaman, was it not a violation of the obligations imposed by this tenth section?
Again, the court assumed jurisdiction of the case, after it had already been adjudicated by the United States consul, with full knowledge of the facts, and against his protest. Was this not also a violation of the obligations imposed by the twenty-first article of the treaty between France and Hawaii?
The court had no right in the first instance to look behind the papers of the vessel; for the treaty with the United States expressly provides that these shall be received as “final and conclusive evidence as to who constitute the crew;” and in accordance with the treaty with France, giving the consuls of each country cognizance of all matters of difference between the masters, the officers, and crews of vessels of their respective countries, the consul of the United States had already made a decision, which, in my opinion was final. If the consul cannot decide whether a man is or is not of the crew of a vessel, then the very effect and intent of the treaty is destroyed by depriving him of the power of determining the very question upon which all order in the vessel can be supported. Unless consuls have the power to decide, and decide, too, without interference from the local courts, who compose the crew of American vessels, it seems to me that all their judicial powers are useless, because upon this 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 authorities had passed upon the validity of the shipping articles, and any and every seaman could arrest the proceedings of the consul, by pleading that he had signed his shipping articles when drunk, or had been coerced by force or induced by fraud to do so.
The principle involved in this case is one which directly affects the interests of all the American shipping that touches at these islands, and I hope his Majesty’s government may see how absolutely important it is to these interests that the local courts should refrain hereafter from any interference between the masters and officers and crews of merchant and [Page 494] other vessels of the United States, in cases where the public peace and tranquillity of the kingdom are not disturbed or endangered.
I cannot more appropriately close my communication to your excellency than by quoting from a despatch lately received from my own government:
“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 betwixt seamen, all American citizens, and that 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.”
I have the honor to renew to your excellency assurances of my highest consideration.
Your most obedient servant,
His Excellency C. de Varigny, His Hawaiian Majesty’s Minister of Foreign Relations.
Mr. McCook to Mr. Pfluger.
Sir: In reply to your communication of the 10th instant concerning the seaman George Reed, now in your custody, charged with the crime of murder, I have the honor to say that, as he committed the crime within the territory of Russia, in my opinion none other than a Russian tribunal is competent to try him; certainly the courts of the United States would have no jurisdiction over an offence committed within the jurisdiction and against the laws of the empire of Russia or any other foreign state.
I am satisfied that his excellency the governor of the Russian colonies in North America sent this prisoner to the American consul here as a mark of respect and consideration for the government of the United States; but neither the consul nor myself would be justified in receiving into custody a person who has committed no offence whatever within the boundaries of our own country. As his excellency the governor, Prince Makzontoff, states expressly in his letter that the crime charged was committed at New Archangel, and on Russian soil, it seems to me that the Russian authorities alone have jurisdiction in the case; consequently I must, most respectfully, decline receiving from you the prisoner Reed, and approve the action of the consul, Mr. Caldwell, in the same premises.
With sentiments of the highest consideration, I have the honor to be your very obedient servant,
Hon. J. C. Pfluger, Consul of his Imperial Majesty the Emperor of Russia.