Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1860-12-15
No. 33'

eed by these considerations 10 entertain iurisdic-
ton, when the representative of the country to which
the party belongs protests against it. In the ordinary
cases which arise between masters and seamen of the
same natiOn very little difficulty is likely arise but
when they differ in nationality the question of comfy
is more difficult to decide for the Representatives of the
different nations may entertain different opinions, and
make adverse requests and we must then decide the
question whether the purposes of justice require
the exercise Of the jurisdiction. But the libel un-
der consideration contains allegations of such peculiar
injustice and ongcontinued injury not destruct-
i've to the health than the moral sense that deny
it consideration would be, as should regard it,
derectoD of duty to the laws Of the sea- well as to
the laws OF nations and of nature.
Is there necessity in this case to exercise jurisdic-
ton to prevent failure of justice 1t is not contended
that the powers Of the Consul adequate for redress
Then the only remedy is appeal to the home FORUM
to the Courts of this country. If we decline uris-
dctiOn the only remedy is to follow the vessel to its
destination, which is distant country-afer cruising
We know not how long, in what seas-and poor and
detencees the youth arrives at the home port Of the
vessel and seeks redress in the courts, with what pro-
babe would he seek for his witnesses Those
who have been examined from different countries
and different races. and many have already been dis
charged from the vessel and knowing do the
tom and usage of shipping and dischargng men in
these voyages OF several years Duration and OF the
uncertain movements of seamen, regard it
impOssibty to procure the testimony at the home
tribunal at least without amount of expense and la
fore would result in entire failure of justice To
remit him. young and poor he undoubtedly is, would
be declaring that he must do what think would be
impossible if not cruelty absurd. II would be vrtu
al denial of justice. The contingencies are too numer
make the proposition reasonable, even IT he had
wealth to prosecute the suit The defendant is master
of whaeship when he intends to return to his coun-
try does appear Many Of the material witnesses
for the belant 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
sonabe probability that the history of the transaction
could be proved?
Parsons says: If justice would well be done by
remittng the parties to their home FORUM" it is not
incumbent to exercise the jurisdiction We do not feel
it duty to exercise the jurisdiction at all times IN
of this character but only IN cases where
from the place Of the transaction in these distant seas
from the almost entire impOssibity Of procuring the
testimony, and then not without expense Tar beyond
the ability of seamen there would be utter failure Of
Justice if declined the jurisdiction Our situation
is nsuar and far removed from the great marts OF COM
merce and navigation Of the Atlantic side Of the United
States and Europe. Many Of the ships in the whaling
service absent from home usually for two or three
years, and sometimes longer. Their crews are con-
stanty changing, that not unfrequenty almost en-
tire crews shipped at the different ports OF the
Pacific, for the the northern seas with stp-
uation to be discharged at the place OF shipment This
is emphaticaly true the ports of these islands The
seaman becomes quasi dOmc;ed alien 1t would not
be strange in of those the Court should feel
mpelled by strong of judicial duty to entertain
jurisdiction. II is the exercise Of discretion governed
by legal necessy-not of caprice or WILL but stern
judicial duty. The who visit these islands are
of almost every and nation, and should we fI to
do duty to these persons, IN accordance with the
prncp and usages which govern Courts OF Admiral
ty in the great maritime States, would not those
States have right by the law of nations TO declare to
this Government, we have recognized your independ-
ence, have received you into the family OF nations, we
have placed your Sovereign on an equality with the
SOveregns of other nations and have right to de-
mand Of you exercise of judicial power and Jurisde
ton, which shall citizens and subjects VIII may
visit your Kingdom, from failure of justice This IS
the view entertain of our judici j duty.
1t will be seen how different situation is from that
of ports the Atlantic, either Of Europe or America
Tn parties be RENTED to the home forum with
comparative ease, few days few weeks only will
be spent in making the voyage Bat from this King
dom to any of those ports several months must ere
the vessels reach their home ports and in the case or
whaleships sometimes years transpre-
We hope that the Courts Of the American and British
possessions in the Pacific will afford some relef to the
exercise of this jurisdiction, but at present the greater
number of ships which visit have not those posses
sOns for their destination.
We have reasoned thus far the general principles
of Admiralty jurisdiction, without the control of treaty
stpulatons. The Consul of the United States in bis
first objection to the exercise Of the jurisdiction says
that the parties American citizens and the ship and
owners American The declaration that the lbellant is
at ST. Geooge one Of the Western Islands Azores.
under the dominion of the Kingdom of Portugal OF
Portuguese parents residing said island, that he has
been in the United States except for the space OF
FIVE months and is not citizen Of the United States
It is admitted by the counsel for the defendant that the
bellant is native of those islands, and he further
that the Consul in making this declaration only
intended say that his enlistment American ves
sci partcd to him The rights and privileges OF citizen
ship The Consul further declares that whatever the
Of ms ha
while the high and beyond the jurisdiction OF
his Maesty's Courts, and by the 2st Article OF the
Treaty with France is not cognzabe in our Courts and
that whatever rights and privileges were granted by
said Treat to France also granted TO 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
the port the sding and dscharging Of vessels the sfe-
ty Of merchandise property and goods This merely
declaratory Of principle acknowledged everywhere.
But the Consul is charged with the internal order on
board and shall take cognzance of all crimes, INSIDE
meanors, and other matters of difference in relation to
said internal ORDER provided the eontendng parties
exclusively French or Hawaiian Subjects and the local
authorities shall interfere unless by the approval
or consent of the Consul in where the public
peace is disturbed Can any language make this Ar
tcle clearer than that already used! In direct and
simple terms it this that the local laws shall go
in all matters touching the police Il the port and
the lading and dischargng Of vessels &c but SO far
any difficulty between the captain, officers
and crew. in relation the internal order Of the vessel
the Consul shall take cognz unless their conduct
disurbs the peace Of the port II the article referred
to the internal order the high could breach OF
it there disturb endanger the public peace and
guilty in any port in the Sandwich Islands! Before
the date of this Treaty the jurisdiction Of all crimes
the high belonged exclusively to the country to
which the vessel belonged and under whose flag she
sailed; but when within the jurisdiction Of another
country. crimes misdemeanors although committed
in enforcing discipline and order, were eognizabls
by the Courts Of that country and the accused could
not be tried in any other jurisdiction, unless by Treaty
stipulation. By this Treaty yielded the jurisdiction
of ports to this extent and the jurisdiction Of crimes