The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1860-12-20

III -'If gV.lI- IUI U|1T rs he TTI-I|TeITV Is. W-TII
be declaring that he must do what we think would be
Impossible. if not cruelty absurd. 1t would be a yirtu-
al denial OF justice. The contingencies are too numer-
Gus to make the proposition reasonable, even if he had
wealth 10 prosecute the suit. The defendant i master
OF ~Whaleship when be intends 10 return to his cguu-
try does not appear. Many Of the material witnesses
Tor the Hbellant have been discharged, and entered the
service Of other ships others may DO the same before
the ship reaches home. When would there be any rea-
sona6le probability that the history Of the transaction
could be proved
Parsons says: If justice would as well be done by
renting the parties to their home forum" il Is not
incumbent to exercise the jurisdiction. We 10 not feel
II our duty 70 exercise the jurisdiction at all times in
cases even Of this character but only IN cases where
from the place Of tie transaction in these distant seas
from the almost entire impOssibhiiy Of procuring the
testimony, anu then not without an expense Tar beyond
the ability Of seamen, there would be an utter failure Of
justice. II We declined the jurisdiction. Our situation
- insular and far removed from the great marts Of CON-
merce and navigation, Of the Atlantic side Of the United
States AMI Europe. Many Of the ships IN the whaling
service are absent from home usually for two or three
years, and sometimes longer. Their crews are con-
stAHtIy changing, 50 that not un;requenIy almost en-
tire new crews are shipped 1t the different ports Of the
Pacific, for the season 20 the northern seas, with q slip
ulatIOn 10 be discharged at the place OF shipment. This
Il emphaiica!ly true at the ports Of these islands. The
seaman becomes a quasi domiciled alien. 1t would not
be strange II in some Of those cases the Court should feel
InPelled by a strong sense Of Judicial duty to entertain
yurisdlcuOn- 1t l. the exercise # a discretion governed
by a legal necesiity-nOt Of caprice or wall, but stern
Judicial duty. The seamen who visit these Islands are
Of almost every race and nation, and should We fail TO
do our duty 10 these persons, in accordance with the
principles and usages which govern Courts Of Admiral
y in the great maritime States. would not those
states have a right By the law OF nations TO declare to
this Government we have recognized your i~ndePend-
ence, have received you into the family Of nations, We
have placed your Sovereign on an equality with the
Soyereigns Of other nations, and we have a right TO de-
mand Of you an exercise Of judicial power and jurisdic-
ton. which shs II save our citizens and subjects VIII MAJ
visit your Kingdom. from a failure Of justice This IS
the view we entertain of our judici.l duty.
Ii will be seen how different our situation Is from that
Of ports on the Atlantic, either Of Europe or America
Thers parties can be RENTED TO the home forum with
comparative case, a few days or a few weeks only viii
be spent in making the voyage. But from this King
dom 20 any of those ports several months must pass ere
the vessels reach their home ports, and in the case Of
Whaleships sometimes years transpire.
We hope that the Courts of the American ana British
possessions IN the Pacific will afford some relief TO the
exercise Of this jurisdiction, but ut present the greater
number Of ships which visit US have not those posses
siOns FOR their destination.
We have reasoned thus far on the general principles
Of Admiralty jurisdiction, without the control of treaty
stipulatious. The Consul Of the United States in his
first objection TO the exercise Of the jurisdiction, says
that the parties are American citizens and the ship and
owners American. The declaration that the hbellant Is
an American Is traversed. He swears that he was born
at st. GeOoge, one Of the Western Islands or Azores,
under the dominion Of the Kingdom of Portugal, OF
Portuguese parents residing on said island, that he mas
never been in the United States except for the space Of
FIVE months, and is not a citizen of the United States.
Ii l. admitted by thGs1ounsel Tor the defendant that the
libellant Is Il native of those islands, and he further
states that the Consul in making this declaration only
intended TO say that his enlistment on an American YES
sci impartial to him the rights and privileges OF citizen
ship. The Consul further declares that Whatever the
alleged cause of action may be, it arose on sad vessel,
while On the high seas and beyond the jurisdiction OF
his Majesty's Courts, and by the 2lst Article OF the
Treaty with France IS not cognizable III our Courts ana
that whatever rights and privileges were granted by
said Treaty to France were also granted 70 the United
States, by the parity clause in their Treaty with this
Kingdom.
The Article in the French Treaty referred to, IS very
clear in its terms in declaring that the laws OF the Ter
ritory shall obtain in all matters touching the police Of
tho avr tho 1a1frr ani lf--hRTu.uF of vessels. the : Ie-
" of merchandise. property and goods. This is merely
declaratory Of q principle acknowledged everywhere
But the Consul is charged with the internal order on
board, aud shall take cognizance OF all crimes Hlsue-
meanOrs, and other matters of difference IN relation 10
said internal order, provided the contending parties are
exc usIvely French or Hawaiian SUBJECTS, ana me local
authorities shall II t interfere, unless by the approval
or consent Of the Consul, or in cases where the pubic
peace is disturbed. Can any language make this Ar
ticle clearer thar that already used? In direct anu
simple terms it means this, that the local laws shall go
yern in all matters touching the police + the port and
the laling and disch,rging of vessels. sc. but 50 Tar
a. any difficulty occurs between the captain, Chcers
and crew, in relation 10 the internal order OF the vessel
the Consul shall take cOguiz uce- unless thelr cohduet
iisturbs the peace of the port. II the article referred
20 the internal order OF the high seas. could a breach of
Z there disturb CT endanger the public peace ana ran
guilty in any port ia the Sandwich Islands: Before
rhe date of this Treaty, the jurisdiction Of all crimes on
-he high seas belonged exclusively TO the country to
which the vessel belonged and under whose ing she
sailed; but when within the jurisdiction OF another
country, crimes or mistemeanors, although conuitied
in enforcing discipline and order. were cognizible
by the Courts IF that country, and the accused could
not he tried in any other jurisdiction, unless by Treaty
stipulation. By this Treaty we yielded the jurisdiction
Of our ports 10 this extent, and the jurisdiction OF crime
committed on the high seas as well as Of marine torts
b. rs 4 cause of an action fr damages, remains - De-
fore.
Of the correctness Of this construction we entertain
not = doubt, but were ii no; 80 II Will not be seriously
cJntendel that sodOmy and unnatural and offensive
embraces, made 10y the captain on any OF his men i for
the purpose Of discipline, or Is designed TO promote the
internal order Of the vessel and were the Consul con-
verslut with the testimony given III the case OF such un-
natural offences, he would not probably take the ground
that thew appertainel to any matters Of difference IN
relation 70 the internal order of the vessel. II. then, u
Is a tort disconnected from and having no relation 10
the internal order Of the vessel. II viii MT come within
the puryiew Of the stipulation Of the French Irelty'
whatever construction may he given TO the extent Of IL
application in other respects.
Il / slil further that all foreigners who enlist tor
service on American ships become American citizens.
If this i 50, Il does not follow that they become 20 with
in the purvi-w Of this Treaty. This i not th- meaning
aud intent Of the Treaty. The language Is that the con-
tending parties must be exclusively French or Hawaii
On subjects. s. that If a French master committed a
tort on a Hawaiian In attempting to enforce discipline,
the jurisdiction Of this Court was not SURRENDERED /, mod
iiei or curtailel, but IL remains the SAME IA before the
Treaty was made. But II the construction Of the Unit
ei States Consul obtains. HawIilns who ship on a
French vessel become subjects OF France and therefore
the provision Of the Treaty which coutemplatGs that
there may be French subjects and Hawaiian subjects IN
the service Of the same vessel, i an l1npOssIolNty, Tor
on an American vessel everybody i American. Ii this
j. the construction given by American law TO the act OF
shipment, Of which we refrain from giving an opinion,
tins high prero-ativc Of citizenship III not given by the
laws OF France or by the laws Of this Kingdom, 10y the
mere act Of shipment on their vess Is. and therefore the
Treaty must Ie construct according 10 its terms. 1t
was not intended that if Frenchmln was kil.d IN q
Hawaiian vessel IN q French port By = Hawaiian master
= .g -. Tr=~Trfra FlHr -Ln IllWlE4n SuULII he I'd