cleared unless certain specified articles which she had on board were taken out and landed. Much correspondence ensued between General Butler and the Prussian consul at New Orleans in reference to the clearance, in which it was distinctly stated by General Butler that the clearance would not be granted until the specified goods were landed, and that it would be granted as soon as this should be done. Almost daily interviews took place between the master of the vessel and the collector, in which the same statements were made by the collector. The master refused to land the cargo, except upon the return of his bills of lading. Some of these bills were returned, and the property surrendered to the shipper. In another case, the shipper gave an order upon the master for his goods, and they were taken away by force. At a very early stage in the proceeding, the master and the Prussian consul were informed that the objection to the shipment of the articles complained of was that they were contraband. A part only of the goods having been taken out of the vessel, a clearance was granted her on the 6th of October, and she was permitted to leave the port and commence her voyage. * * Upon this state of facts, the Court of Claims gave judgment for Diekelman, from which the United States took an appeal. * 1. As to the general law of nations. The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws which govern the port they visit, so long as they remain; and this as well in war as in peace, unless it is otherwise provided by treaty. The Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. When the Essex sailed from Liverpool, the United States were engaged in war. The proclamation under which she was permitted to visit New Orleans made it a condition of her entry that she should not take out goods contraband of war, and that she should not leave until cleared by the collector of customs according to law. Previous to June 1 she was excluded altogether from the port by the blockade. At that date the blockade was not removed, but relaxed only in the interests of commerce. The war still remained paramount, and commercial intercourse subordinate only. When the Essex availed herself of the proclamation and entered the port, she assented to the conditions imposed, and cannot complain if she was detained on account of the necessity of enforcing her obligations thus assumed. * * * We are clearly of the opinion that there is no liability to this plaintiff resting upon the United States under the general law of nations. 2. As to the treaty. The vessel was in port when the detention occurred. She had not broken ground, and had not commenced her voyage. She came into the waters of the United States while an impending war was flagrant, under an agreement not to depart with contraband goods on board. The question is not whether she could have been stopped and detained after her voyage had been actually commenced, without compensation for the loss, but whether she could be kept from entering upon the voyage and detained by the United States within their own waters, held by force against a powerful rebellion, until she had complied with regulations adopted as a means of safety, and to the enforcement of which she had assented, in order to get there. In our opinion, no provision of the treaties in force between the two governments interferes with the right of the United States, under the general law of nations, to withhold a custom-house clearance as a means of enforcing port regulations. Art. XIII of the treaty of 1799, revived by that of 1828, evidently has reference to captures and detentions after a voyage has commenced, and not to detentions in port, to enforce port regulations. * As we view the case, the claimant is not "entitled to any damages" as against the United States, either under the treaty with Prussia or by the general law of nations. The judgment of the Court of Claims is, therefore, reversed, and the cause remanded with directions to dismiss the petition.31 31 In Sotelo's Case, 1 Calvo, 569 (1840), M. Sotelo, an ex-Spanish Minister of State, was taken off the French merchant vessel L'Océan on reaching Alicante, a Spanish port. To the same effect was the opinion of Lord Aberdeen, as appears from the following: "I am directed by Lord Aberdeen to acquaint you, for the information of the Lords Commissioners of the Admiralty, that there is no stipulation in the existing treaties between this country and Spain which can be deemed sufficient to debar the Spanish government from exercising the right which, in his lordship's opinion, appertains to that government of claiming its own subjects when they may be found in a Spanish port as passengers on board vessels hired to convey the mails between this country and the Peninsula." Viscount Canning to the Secretary of the Admiralty, March 20, 1844; Rep. of Royal Comm. on Fugitive Slaves, 154. The better American precedents are in accord. In the Case of Gomez (United States Foreign Relations, 1885, 82), Secretary of State Bayard, on March 12, 1885, sent the following instructions to Minister Hall: "It appears that Mr. Gomez, who is said to be a political fugitive from Nicaragua, voluntarily took passage at San José de Guatemala for Punta Arenas, Costa Rica, on board the Pacific Mail steamship Honduras with the knowledge that the vessel would enter en route the port of San Juan del Sur, Nicaragua. "The government of Nicaragua upon learning of this fact ordered the commandant of the port of San Juan del Sur to arrest Gomez upon the arrival of the Honduras at that port. "The minister for foreign affairs of Nicaragua informed Mr. Leavitt, United States consul at Managua, of the action of the government by a telegram, as follows: ""Government has ordered the commander of port San Juan del Sur to arrest José Dolores Gomez, a fugitive prisoner, who is on board of the steamer Honduras, now en route to that port. I suppose the captain will not interfere with the action of the commander, but to avoid whatever difficulties likely to arise I suggest you to send a telegraphic message to the captain of the Honduras, at San Juan del Sur, stating that the order has been issued by the government and recommending him to support the commander, as there SECTION 3.—EXTRATERRITORIAL JURISDICTION I. IN CASE OF PIRACY OPINION OF SIR LEOLINE JENKINS. (1 Life of Sir Leoline Jenkins, LXXXVI.) There are some sorts of felonies and offences, which cannot be committed anywhere else but upon the sea, within the jurisdiction. of the Admiralty. These I shall insist upon a little more particularly, and the chiefest in this kind is piracy. You are therefore to inquire of all Pirates and sea-rovers; they are in the eye of the law hostes humani generis, enemies not of one nation or of one sort of people only, but of all mankind. They are outlawed, as I may say, by the laws of all nations, that is, out of is no ground on the part of the captain to hinder the execution of the government order.' "It appears that, before Mr. Leavitt had an opportunity to act upon this request, you telegraphed him as follows: "Reported here arrest of a transit passenger bound to Panama on board steamer Honduras at San Juan del Sur. Say respectfully to Nicaraguan minister of foreign affairs that our Government never has consented and never will consent to the arrest and removal from an American vessel in a foreign port, of any passenger in transit, much less if offense is political.' "It appears that Mr. Leavitt declined to comply with the request of the minister of foreign affairs, and followed your instructions by submitting a copy in writing to the minister. "From the brief outline given by the consul of the subsequent proceedings, it appears that the government authorities at San Juan del Sur, upon the arrival of the Honduras at that port, requested the captain to deliver up Mr. Gomez. This he declined to do and set sail without proper clearance papers. "The consul reports that for these offenses the captain has been tried by the Nicaraguan government and found guilty, and although he has not been able to learn the nature of the sentence, he is convinced, from the present attitude of the government, that the sentence will be executed in case of the return of the captain or the vessel within the jurisdiction of the government of Nicaragua. "As the nature and character of the proceedings against the captain of the Honduras are not known to this department, a full and detailed report should be made as early as practicable. It is clear that Mr. Gomez voluntarily entered the jurisdiction of a country whose laws he had violated. "It may be safely affirmed that when a merchant vessel of one country visits the ports of another for the purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty. "Any exemption or immunity from local jurisdiction must be derived from the consent of that country. No such exemption is made in the treaty of commerce and navigation concluded between this country and Nicaragua on the 21st day of June, 1867." SCOTT INT. LAW-22 the protection of all princes and of all laws whatsoever. Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and to root them out. That which is called robbing upon the highway, the same being done upon the water is called piracy. Now robbery, as 'tis distinguished from thieving or larceny, implies not only the actual taking away of my goods, while I am, as we say, in peace, but also the putting me in fear, by taking them away by force and arms out of my hands, or in my sight and presence; when this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy. And such was the generosity of our ancient English, such the abhorrence of our laws against pirates and sea-rovers, that if any of the King's subjects robbed or murdered a foreigner upon our seas or within our ports, though the foreigner happened to be of a nation in hostility against the King, yet if he had the King's passport, or the Lord Admiral's, the offender was punished, not as a felon only, but this crime was made high treason, in that great Prince Henry the Fifth's time; and not only himself, but all his accomplices were to suffer as traitors against the crown and dignity of the King." " 32 LE LOUIS. (High Court of Admiralty, 1817. 2 Dodson, 210.) This was the case of a French vessel which sailed from Martinique on the 30th of January, 1816, destined on a voyage to the coast of Africa and back, and was captured ten or twelve leagues to the southward of Cape Mesurada, by the Queen Charlotte cutter, on the 11th of March in the same year, and carried to Sierra Leone. She was proceeded against in the Vice Admiralty Court of that colony, and the information pleaded-1st, that the seizors were duly and legally commissioned to make captures and seizures. 2d, That the seizure was within the jurisdiction of the court. 3d, That the vessel belonged to French subjects or others, and was fitted out, manned and navigated for the purpose of carrying on the African slave-trade, after that trade had been abolished by the internal laws of France, and by the treaty between Great Britain and France. 4th, That the vessel had bargained for twelve slaves at Mesurada, and was prevented by the capture alcne from taking them on board. 5th, That the brig being engaged in the slave-trade, contrary to the laws of France, and the law of nations, was liable to condemnation, and could derive no 32 See U. S. v. Smith, 5 Wheat. 153, 5 L. Ed. 57 (1820). In speaking of this case Sir Robert Phillimore (1 Int. Law, 489, note d) says: "The note (a) to this page [5 Wheat. 163] contains a most learned and careful accumulation of all the authorities on the subject of Piracy." Lack of space unfortunately compels its omission. SCOTT INT.LAW protection from the French or any other flag. 6th, That the crew of the brig resisted the Queen Charlotte, and piratically killed eight of her crew, and wounded twelve others. 7th, That the vessel being engaged in this illegal traffic resisted the King's duly commissioned cruisers, and did not allow of search until overpowered by numbers. And 8th, That by reason of the circumstances stated, the vessel was out of the protection of any law, and liable to condemnation. The ship was condemned to his Majesty in the Vice-Admiralty Court at Sierra Leone, and from this decision an appeal was made to this court. Sir W. SCOTT.33 This ship was taken off Cape Mesurada, on the coast of Africa, on the 11th of March, 1816, by an English colonial armed vessel, after a severe engagement, which followed an attempt to escape. The ship seized was, in appearance and in fact, a French ship, admitted both in the plea and in the argument to be so unquestionably, owned and navigated by Frenchmen, originally, indeed, built in America, and having been for a short time in British possession, which had ceased. She is immediately proceeded against in the Vice-Admiralty Court at Sierra Leone (whither she had been carried), as a French ship violating French law by the intention of purchasing slaves for the purpose of carrying them to her port in Martinique. * At Sierra Leone, proceedings were commenced, which led to the first condemnation of the ship and cargo. * I will suppose the jurisdiction to be duly founded, as far as the matter of locality is concerned, and consider only whether the sentence can be sustained, giving the authority which pronounced it the benefit of a supposed indisputable jurisdiction. At the outset of the proceedings, the seizor describes himself as commissioned to make captures and seizures. It certainly appeared to be a singular commission that authorized him to make captures in time of peace; and it was therefore not an unnatural curiosity on the part of the court to desire to see it. The commission, after. repeated requisitions, has been at last brought in, at a time extremely inconvenient for the purpose of any careful examination by the court, if that were necessary. It may, however, be sufficient to state that this commission professes to be issued by the governor of Sierra Leone, on the 25th of January, 1816, to be founded on the Slave Trade Act, 51 Geo. III, and to authorize the commander to seize and detain (for I do not find that the word capture occurs) all ships and vessels offending against that act, or any other act abolishing the slave trade; and, after stating these facts, to observe, that neither this British act of parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded upon principles, and impose regulations, that are consistent with the law of nations. That 33 Parts of the opinion are omitted. |