The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-02

the territory OF the nation in which lies her owner
ship, and the courts OF the nation thus acquire the
right TO deal with all people on board, and they ac
qulre that right, generally speaking, In other
way. But IL II manifest that consular or other
foreign court IN China has only extra-terrtOria
authority. on this point quote from Mr.. Cushing
opinion. Opinions Of Attorneys General, vol. Z,
pages 5ls5l9.) ''rhe local courts OF each govern.
Inent, being exterrltorial ones, have territorial
jurisdiction, but only jurisdiction as respects per-
sons-namely its own citizens or subjects;" and nav.
Ing simply this personal authority Il seems to me
clear that they cannot exercise Jurisdiction which
Judge IL purely territorial In It's character IL Is
true that the Consular courts 40 TAKE jurisdiction
over the ships themselves OF their country in many
matters Fer instance exercise more or less adj
miralty jurisdiction. But this Jurisdiction may be
ponds on the ownership OF the vessels. The other
jurisdiction would be the reyerse-it would come
from the Ship
And the proposition would be inadmissible again,
because-1 il 1t DO granted that the foreign court
in China can exercise jurisdiction which terri
torlal in It's character, In order to exercise such
jurisdiction over ship In Chinese waters IL
must be demonstrated that the waters OF China
are the same as the high seas, or at least
waiver OF Its natural rights over them, which
authorizes us for these purposes so to consider
them, neither OF which Is the case. We have no
rights in Chinese waters excepting such as are sane
toned by treaties, and the general provisions OF
international law. Ana It is admitted on all sides
that the natural right or the Chinese TO police their
own waters and, at least for revenue purposes, to
board foreign ships, remains with the government
Nor, on the other hand. has China made the waiver
Indicated. What, a. we have seen, she has waived
Is jurisdiction over persons which waiver Is made
TO the nation OF those persons, and nowhere at least
In TERMS TO the nation Of the ship in which the per-
sons may be.
There is principle adopted by our government
which may seem ut first sight TO affect the subject OF
this discussion. l refer TO the declaration by Mr..
Jefferson, which we lind everywhere in our text
books ''the simplest rule viii be, that the vessel
being American shall be evidence that the
seamen board are sucl;n and the indorse-
ment thereof oy Mr.. Webster I'm every regular.
ly documented American merchant vessel The crew
~ IL will find their protection u
which Is over them.n (Wheaton, sec. 1901 This
principle, laid down In terms so broad must neces-
sarily be construed III view OF the circumstances
under which it was made ana OF the whole discussion
which II arose. Those circum stances grew out Of
the practice of the British government Of npresslng
seamen from our ships, and the declaration was
made to the right TO do this on the high seas. 1t
has, believe this bearing only, and certainly cannot
citizenship. Indeed MIR. Webster's correspondence
In the matter ended with the words,
. .ths American government is prepared to say
from our vessels cannot hereafter be allowed"
And 1t would seem that this was the point
occurred his declaration before quoted, and as
wen in the previous discussion Of the same matter
in which occurred Mr. Jeferson's declaration Wide
Danas edition Of Wheaton, 110a. and vol. 2 PIP.
25S, ct seq. Am. Dip. COde)
In view Of what has been said the justice OF the
rule stated by me at the outset will be seen, think.
Thereupon Of course arise questions as to the ex-
tent OF consular jurisdiction In the states OF Chrsten
dom, for q discussion and determination OF winch !
One other feature OF the case remains which per-
haps deserves notice. Granting that the C0nsuls or
other judicial 1unctOnaries In China OF the several
nations, are the only officers IN China who have the
right to take superior jurisdiction over their respec-
tive nationals in China, or OH any merchant snip IN
Chinese waters, by whom or IN what manner may
arrests be nader
strictly, perhaps. the Consul or the often der,
in virtue of the waiver Of authority made
by the government OF China to his govern
ment, and by his government committed 10 HIM,
might arrest with or without other sanction,
person on board ship OF another nation III Chi
waters, but this should, on grounds OF cour-
tesy Ii Tor other reason refuse TO do. And 1t IL
sufficient to say In this connection that the Consul
arrest OF any person on board OF vessel OF his
nali0n syIch person being charged with some grave
offence to make the arrest himself at the re-
quest Of the Consul OF the offender, would clearly
commit breach OF that comfy which IL gene
rally and necessarily observed here between officers
OF different nationalitlcs, and very certainly incur
the dIspcasure OF his superior officers.
And III review may say That the conclusion thus
arrived at legal grounds is the most satisfactory
one on grounds OF public FEELING and convenience
There have been many instances where persons who
have committed serious OiienceS on board ships IN
China have been tried in China. believe u
natural sentiment has in every led the officer
on behalf OF the SLIP to waive
jurisdiction in favor or the proper Consul
so. AT least should greatly object, even If legal
right were established beyond doubt, to try British
French subject when courts OF those nationaties
are existent here side by side with my own
A copy hereof VIII he sent to the Legation and to
the Department of state Tor approval or revision.
have the nonor to be your obeuient servant,
GEORGE +. SEWARD.