The Secretary of State to the Spanish Minister.
Washington , December 7, 1910 .
Sir: I have the honor to acknowledge the receipt of your note of the 29th ultimo, in which you complain of the alleged arbitrary action of the local authorities in Pensacola, Fla., in 1907, in connection with the killing of Juan Bautista Sagasti, a steward on the Spanish steamship Viviana, which, in your opinion, openly infringed the text of the treaty of friendship and general relations of July 3, 1902, between the United States and Spain.
You state that it appears that Pantaleon Basterrechea, a Spaniard and cook on the Viviana, killed the steward, Sagasti, on April 27, 1907, while the ship was anchored in the port of Pensacola, both being on board the ship at the time; that the Spanish vice consul, upon being informed of the occurrence by the captain, issued the following order:
The aggressor, Pantaleon Basterrechea, being locked up in the first officer’s room, was, on the request of the examining magistrate, Mr. James Landrum, and for greater safety, delivered to him and taken from the ship by a constable.
That when the consular officer asked to have the accused returned to be placed on board and taken to Spain, the magistrate replied that the trial had taken place before 12 American citizens who had returned a verdict of “not guilty” on account of the homicide by Pantaleon Basterrechea having been declared justifiable, and that Basterrechea had been released.
You also state that the vice consul had delivered the accused to the authorities of the United States for custody and return only with a view to greater safety at that time and in compliance with the magistrate’s request. You express the view that it is clear that the failure to return him was a manifest misinterpretation of the provisions of the treaty on the part of the authorities of the United States. You, therefore, submit the matter to this department, by instruction of your Government, in order that you may assure your Government that hereafter the provisions of the treaty, particularly article 23 thereof, will be strictly observed by the Federal, State, or municipal authorities of the United States in cases of the same character that may arise.
The matter has received careful attention. A consideration of the facts of the case, as stated in your note, shows, however, that the action of the local authorities at Pensacola constituted no infringement of the provisions of the treaty. The treaty (art. 23) provides that—
Consuls general, consuls, vice consuls, and consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take [Page 853] cognizance of differences which may arise, either at sea or in port, between the captains, officers, and crews without exception, particularly in reference to the adjustment of wages and the execution of contracts. In case any disorder should happen on board of vessels of either party in the territorial waters of the other, neither the Federal, State, nor municipal authorities in the United States, nor the authorities or courts in Spain, shall, on any pretext, interfere, except when the said disorders are of such a nature as to cause or be likely to cause a breach of the peace or serious trouble ‘in the port or on shore, or when in such trouble or breach of the peace a person or persons shall be implicated not forming a part of the crew. In any other case said Federal, State, or municipal authorities in the United States, or authorities or courts in Spain, shall not interfere, but shall render forcible aid to consular officers, when they may ask it, to search for, arrest, and imprison all persons composing the crew whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the consul addressed in writing to either the Federal, State, or municipal authorities in the United States, or the authorities or courts in Spain, and supported by an official extract from the register of the ship or the list of the crew, and the prisoners shall be held during the whole time of their stay in the port at the disposal of the consular officers. Their release shall be granted at the mere request of such officers made in writing. The expenses of the arrest and detention of those persons shall be paid by he consular officers.
The first sentence of this article confers upon consular officers authority to cause order to be maintained on board the vessel, and to decide disputes arising between officers and crew, either at sea or in port. The treaty further provides, however, that the local authorities may interfere when the disorder happening on board is of such a nature as to cause or be likely to cause a breach of the peace or serious trouble in the port or on shore, or when in such trouble or breach of the peace a person or persons shall be implicated not forming a part of the crew. The treaty then goes on to provide that “in any other case”—that is, in any other case than (1) that in which the disorder is of such a character as to cause, or be likely to cause, a breach of the peace or serious trouble, or (2) when a person or persons shall be implicated not forming a part of the crew—the local authorities shall render forcible aid to consular officers when they may ask it to search for, arrest, and imprison all persons composing the crew whom they may deem it necessary to confine, and hold them at the disposal of the consular officer.
By these provisions, which are substantially the same as those contained in a number of the treaties of the United States, each of the contracting parties has granted to the other such local jurisdiction within its own dominion as may be necessary to maintain order on board a merchant vessel, but has reserved to itself the right to interfere if the disorder on board is of a nature to disturb the public peace.
The question to be determined is whether the act done in the present case was “a disorder of a nature to cause, or be likely to cause, a breach of the peace or serious trouble in the port or on shore.” It may be difficult, in some cases, to determine whether a particular disorder is one which disturbs only the peace of the ship, or the public peace, but there would appear to be no question that the killing of one human being by another is “a disorder of such a nature as to cause, or be likely to cause, a breach of the peace or serious trouble in the port or on shore.”
In a case arising a few years ago the facts were that one of the crew of the Belgian steamship Noordland shot and killed another member of the crew of the same ship while it was anchored in the port of Jersey City, N. J. The aggressor was arrested by the local police authorities and committed by a police magistrate to jail to await trial. [Page 854] The Belgian consul applied to the United States circuit court for the district of New Jersey for the release of the prisoner upon a writ of habeas corpus, and his delivery to the consul to be dealt with according to the law of Belgium. It was claimed by the consul that by the law of nations and the provisions of the consular treaty between the United States and Belgium the offense was solely cognizable by the authority of the laws of Belgium. The provisions of the Belgian treaty were substantially the same as those of article 23 of the treaty between the United States and Spain, the former reserving the right of interference by the local authorities when the disorder is “of such a nature as to disturb tranquillity and public order on shore or in the port” while the latter authorizes such interference when the disorder is “of such a nature as to cause, or be likely to cause, a breach of the peace or serious trouble in the port or on shore.”
The court refused to deliver the prisoner to the consul and remanded him to the custody of the jailer. To reverse this decision an appeal was taken to the Supreme Court of the United States. That court affirmed the judgment of the court below, holding that, unless exempted by treaty, a foreign merchant vessel entering a port of the United States for purposes of trade is subject to the local law; that the local courts may punish for crimes committed upon the vessel within the port by one foreigner upon another foreigner; and that the treaty between Belgium and the United States conferring power upon Belgian consuls in the United States to take cognizance of differences between captains, officers, and crews of Belgian merchant vessels in ports of the United States, and providing that the local authorities shall not interfere except when a disorder arises of such a nature as to disturb tranquillity or public order on shore or in port, did not deprive the local authorities of jurisdiction over the offense committed in the case before the court.
In determining the question whether the thing done on board the vessel was of a nature to disurb the public peace of New Jersey the court said:
If the thing done, “the disorder,” as it is called in the treaty, is of a character to to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done is a matter of no moment. Those who are not on the vessel pay no special attention to the more disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they as a rule care for anything done on board which relates only to the discipline of the ship or to the preservation of order and authority. Not so, however, with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers itself bound to provide a severe punishment for when committed within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes known, it is a “disorder,” the nature of which is to affect the community at large, and consequently to invoke the power of the local government whose people have been disturbed by what was done. The very nature of such an act is to dusturb the quiet of a peaceful community and to create, in the language of the treaty, a “disorder” which will “disturb tranquillity and public order on shore or in the port.” The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at [Page 855] all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. (U. S. Rep. 1886, vol. 120, pp. 17–18.)
I feel confident that further consideration of the matter will convince your Government that this case was one coming clearly within the cognizance of the local authorities, and that there was no infringement of the treaty provisions. I need not assure you of the desire of this Government that the provisions of the treaty between the two Governments shall at all times be strictly observed by both Federal and State authorities.