The Secretary of State to the British Ambassador (Howard)

Excellency: I have the honor to refer again to your note of May 4, 1926, your note of March 2, 1926,36 and your predecessor’s note of January 18, 1922, with reference to the case of Alexander MacClennan, an American seaman of British nationality who was sentenced in 1920 in the American Consular Court at Alexandria, upon a charge of being drunk and disorderly and inciting to disturbance on board the American Steamship Dakotan.

It is noted that while His Majesty’s Government are not desirous that further action should be taken in this case they feel that it is desirable that some decision should be reached for further reference as to the rights of consular officers in such cases.

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Your Excellency’s predecessor stated that the real question at issue is whether an American Consular Tribunal in Egypt has properly any jurisdiction to sentence a British subject to imprisonment. With respect to this question it was observed that MacClennan was exempt from the jurisdiction of the Egyptian courts only in consequence of a capitulation or treaty between Great Britain and Egypt and that it is not likely to be contended that a capitulation or treaty between the United States and Egypt could give to an American Court jurisdiction over a British subject. With reference to the view, previously expressed by this Government, that MacClennan, though a British subject, was, as an American seaman, amenable to the jurisdiction of the American Consular Court at Alexandria, your predecessor remarked that the powers of the American Consul at Alexandria (with respect to the trial of foreign members of an American crew) do not appear to be in any way different from the powers of the American Consul at Liverpool or Marseilles and that the Egyptian tribunals have never recognized “the special status claimed for American seamen as apart from the status of American citizens”. Your predecessor further remarked that there does not appear to be any recorded case where a Consular Tribunal has claimed or exercised jurisdiction over the national of another State. In conclusion, your predecessor stated that, while in the opinion of the legal advisers to His Majesty’s Government, the regularity of the action of the American Consular Court at Alexandria could be tested, indirectly, by proceedings before the Egyptian Mixed Tribunals against the Egyptian Government on the ground that the warrant of the Consul constituted no authority for the detention of MacClennan in an Egyptian prison, it is not the desire of His Majesty’s Government to adopt such a course and that the matter is accordingly presented to this Government in the hope that an agreement may be reached which will settle the question of jurisdiction for the future.

The question raised in the note of January 18, 1922, is in essential respects identical with that which was discussed at length in a communication, under date of June 3, 1881, which Secretary of State Blaine, in behalf of this Government, addressed to Sir Edward Thornton, His Britannic Majesty’s Minister at Washington.37 The case in connection with which the question was discussed was that of John M. Ross, an American seaman of British nationality who was tried in the American Consular Court at Kanagawa, Japan, and convicted of a murder on board the American Steamship Bullion in the harbor of Yokohama. In the discussions which preceded the communications of June 3, 1881, and in the argument before the Supreme Court of the [Page 84] United States concerning the same case some years later (In re Ross, 140 U. S. 453), considerations similar to those advanced by the note of January 18, 1922, were put forward.

In the communication of June 3, 1881, above mentioned Secretary Blaine, after calling attention to the embarrassments and complications which would inevitably attend the application of nationality as the sole test of jurisdiction in the Consular Courts, referred to the special status attributed to merchant seamen under British and American law. Disclaiming any desire to conduct the correspondence in a controversial spirit he said:

“My object is to point out that the position taken by the Government of the United States is in entire conformity with the principles of English law as applied to a mercantile service, almost identical with our own in its organization and regulation. That principle is that when a foreigner enters the mercantile marine of any nation and becomes one of the crew of a vessel having undoubtedly a national character, he assumes a temporary allegiance to the flag under which he serves, and in return for the protection afforded him becomes subject to the laws by which that nation in the exercise of an unquestioned authority, governs its vessels and seamen. If, therefore, the Government of the U. S. has by treaty stipulation with Japan acquired the privilege of administering its own laws upon its own vessels and in relation to its own seamen in Japanese territory, then every American vessel and every seaman of its crew are subject to the jurisdiction which by such treaty has been transferred to the Government of the United States.

“If Ross had been a passenger on board of the Bullion, or if residing in Yokohama, he had come on board temporarily and had then committed the murder, the question of jurisdiction would have been very different. But, as it was, he was part of the crew, a duly enrolled seaman under American laws, enjoying the protection of this Government to such an extent that he could have been protected from arrest by the British authorities and his subjection to the laws of the U. S. cannot be avoided just at the moment that it suits his convenience to allege foreign citizenship. The law which he violated was the law made by the U. S. for the government of U. S. vessels; the person murdered was one of his own superior officers whom he had bound himself to respect and obey, and it is difficult to see by what authority the British Government can assume the duty or claim the right to vindicate that law, or protect that officer.

“The mercantile service is certainly a national service, although not quite in the sense in which that term would be applied to the national navy. It is an organized service, governed by a special and complex system of law, administered by national officers, such as collectors, harbor masters, shipping masters and Consuls, appointed by national authority. This system of law attaches to the vessel and crew when they leave a national port and accompanies them round the globe, regulating their lives, protecting their persons and punishing their offences. The sailor, like the soldier during his enlistment, knows no other allegiance than to the law and the country under whose flag [Page 85] he serves. This law may be suspended while he is in the ports of a foreign nation, but where such foreign nation grants to the country which he serves the power to administer its own laws in such foreign territory, then the law under which he enlisted again becomes supreme.

“The Government of the U. S. also feels that its duties in reference to its mercantile marine are more stringent in the ports of the East, than they would be in the political communities of the same civilization. When intercourse was sought with these Powers for the purpose of extending our commerce, and large and unusual authority was asked from them to secure the persons and property which might be employed in such intercourse, the Government of the U. S. thinks that it assumed special responsibility for the maintenance of good order in the ports which it expected to frequent. A conflict of jurisdiction between the nations admitted to these privileges would be not only disastrous to their own commercial interests and dangerous to their own amicable relations, but it would inevitably tend to violence, disorder and crime among seamen, of which these countries would have good reason to complain.”

The communication of June 3, 1881, concluded as follows:

“So impressed is this Government with the importance and propriety of these views, that while it will receive with the most respectful consideration, the expression of any different conviction which Her Britannic Majesty’s Government may entertain, it will yet feel bound to instruct its Consular and Diplomatic officers in the East, that in China and Japan the judicial authority of the Consuls of the U. S. will be considered as extending over all persons, duly shipped and enrolled upon the articles of any merchant vessel of the U. S., whatever be the nationality of such person. And all offences which would be justice-able by the Consular Courts of the United States, where the persons so offending are native born or naturalized citizens of the United States, employed in the merchant service thereof, are equally justice-able by the same Consular Courts in the case of seamen of foreign nationality.”

When, in 1891 [1890], the case of Ross came before the Supreme Court of the United States, upon an appeal from the order of the Circuit Court of the United States for the Northern District of New York, denying the prisoner’s petition for a writ of habeas corpus, the Supreme Court carefully considered the case on its merits and concluded that the views expressed by Secretary Blaine presented “the true status of the prisoner while an enlisted seaman on the American vessel”. In the course of its decision the Court said:

“The national character of the petitioner, for all the purposes of the consular jurisdiction, was determinable by his enlistment as one of the crew of the American ship Bullion. By such enlistment he becomes an American seaman—one of an American crew on board of an American vessel—and as such entitled to the protection and benefits of all the laws passed by Congress on behalf of American seamen, and subject to all their obligations and liabilities. Although his relations to the British government are not so changed that, after the [Page 86] expiration of his enlistment on board of the American ship, that government may not enforce his obligation of allegiance, and he on the other hand may not be entitled to invoke its protection as a British subject, that relation was changed during his service of seaman on board of the American ship under his enlistment. He could then insist upon treatment as an American seaman, and invoke for its protection all the power of the United States which could be called into exercise for the protection of seamen who were native born. He owes for that time to the country to which the ship on which he is serving belongs, a temporary allegiance, and must be held to all its responsibilities. …38

“Reading the treaty and statute together in view of the purpose designed to be accomplished, we are satisfied that it was intended by them to bring within our laws all who are citizens, and also all who, though not strictly citizens, are by their service equally entitled to the care and protection of the government. It is a canon of interpretation to so construe a law or a treaty as to give effect to the object designed, and for that purpose all of its provisions must be examined in the light of attendant and surrounding circumstances. To some terms and expressions a literal meaning will be given, and to others a larger and more extended one. The reports of adjudged cases and approved legal treatises are full of illustrations of the application of this rule. The inquiry in all such cases is as to what was intended in the law by the legislature, and in the treaty by the contracting parties. …38

“We are satisfied that the true rule of construction in the present case was adopted by the Department of State in the correspondence with the English Government, and that the action of the consular tribunal in taking jurisdiction of the prisoner Ross, though an English subject, for the offence committed, was authorized. While he was an enlisted seaman on the American vessel, which floated the American flag, he was, within the meaning of the statute and the treaty, an American under the protection and subject to the laws of the United States equally with the seaman who was native born. As an American seaman he could have demanded a trial before the consular court as a matter of right, and must therefore be held subject to it as a matter of obligation.

“We have not overlooked the objection repeatedly made and earnestly pressed by counsel, that the consular tribunal is a court of limited jurisdiction. It is undoubtedly a court of that character, limited by the treaty and the statutes passed to carry it into effect, and its jurisdiction cannot be extended beyond their legitimate meaning. But their construction is not, therefore, to be so restricted as to practically defeat the purposes to be accomplished by the treaty, but rather so as to give it full operation, in order that it may not be a vain and nugatory act.”

With respect to the remark made in the note of January 18, 1922, that there does not appear to be any recorded case where a Consular Tribunal has claimed or exercised jurisdiction over the nationals of another state, it may be stated that the Consular Courts of the United [Page 87] States in China and Japan have continued, when occasion arose, to exercise jurisdiction over American seamen of foreign nationality; and, by the converse of the proposition maintained by this Government in the discussion of the Ross case, those Courts have declined to assert jurisdiction over American members of foreign crews in China and Japan. Furthermore, the records of the Department indicate that in 1889, after an American Consul at Amoy, China, had declined to assume jurisdiction over an American member of a British crew, a British court in China took jurisdiction.

The views expressed by Secretary Blaine and approved by the Supreme Court in the Boss case have been regarded by this Government as applicable in principle with respect to the situation of American seamen of foreign nationality charged with the commission of offences in the Ottoman Empire. In two cases which arose at Smyrna, one in 1912 affecting the captain of the American Steamship Texas39 and the other in 1913, affecting the captain of the American Steamship Nevada, this Government maintained the view that the masters and the enrolled seamen of an American vessel are assimilated to American nationality and are therefore amenable to American Consular jurisdiction in the Ottoman Empire.

The action of the American Consular Court at Alexandria in the case of MacClennan was consistent with the opinion expressed by the highest judicial authority in the United States, in the Ross case, with respect to the status of American seamen of foreign nationality and was consonant with the action of extraterritorial courts of His Majesty’s Government in China.

It may be noted that in the instant case MacClennan accepted the assistance offered by the American Consul during the time when he was in Egypt after the loss of the vessel upon which he had been signed and that he accepted the arrangements made by the Consul for procuring him passage to the United States by signing him on board the American ship Dakotan and that his acceptance of these favors only served to exaggerate the mutinous character of his conduct on board the Dakotan and called for severe measures of discipline which together with his status as an American seaman warranted the American Consul in the circumstances in extending his assistance to the Captain of the Dakotan and in taking jurisdiction of the case.

In view of the consideration which this subject has heretofore received in diplomatic correspondence between His Majesty’s Government and the Government of the United States and in view also of the precedents cited above for the exercise by the courts of His Majesty’s Government of jurisdiction over British seamen of American [Page 88] nationality, and for the exercise by the courts of the United States of jurisdiction over American seamen of British nationality, it would seem that the question of the propriety of the exercise by Consular Courts of the United States in Egypt over American seamen of British nationality on American vessels in Egyptian waters should be regarded as settled.

I venture to express the hope, that on further consideration Your Excellency’s Government will concur in the views of the Government of the United States.

Accept [etc.]

Frank B. Kellogg
  1. Neither printed.
  2. Not printed.
  3. Omission indicated in the Secretary’s note.
  4. Omission indicated in the Secretary’s note.
  5. See Foreign Relations, 1913, pp. 1310 ff.