VII. VESSELS. § 174. Acts at sea. In the It is often stated that a ship on the high seas constitutes a part of the territory of the nation whose flag it flies. physical sense, this phrase obviously is metaphorical. In the legal sense, it means that a ship on the high seas is subject to the exclusive jurisdiction of the nation to which, or to whose citizens, it belongs. The jurisdiction is quasi territorial. Woolsey, Int. Law, § 54; Field, Int. Code, § 309; 95 North Am. Rev. (July 1862), 8; Crapo r. Kelly, 16 Wall. 610; Wilson v. McNamee, 102 U. S. 572, 574; Re Moncan, 14 Fed. Rep. 44. The belligerent right of visitation and search forms an exception to this rule. The only general exception, in time of peace, is that of piracy jure gentium. The scene of the pirate's operations being the high seas, and his crime being treated as a renunciation of the protection of the flag which he may carry, he is treated as an outlaw, whom any nation may capture and punish. Dr. F. de Martens, as arbitrator in the case of the Costa Rica Packet, held that the Dutch courts were incompetent to entertain a prosecution of the master of a British whaler for taking some liquor from an alleged Dutch prauw (native boat), which was floating derelict at sea, outside territorial waters. (Moore, Int. Arbitrations, V. 4953.) "I have no doubt that an offence, committed on board a public ship of war, on the high seas, is committed within the jurisdiction of the nation to whom the ship belongs." President Adams to Mr. Pickering, Sec. of State, May 21, 1799, John See Moore on Extradition, I. 135, § 104. A sentry on the U. S. S. Inde- Complaint having been made that the marine court of the city of New York had assumed jurisdiction to try and punish the master of a Sardinian vessel for an assault and battery alleged to have been committed by him upon two of his seamen on the high seas, the following reply was made: "If this was the position of the Phebo when the alleged assault was committed the jurisdiction of this matter belongs exclusively to the Government of Sardinia, and such would no doubt have been the decision of the court of appeals in New York if the case had been brought before it. . . . Were there such a law of New York as is alleged, it would not give jurisdiction over the case. . . . ; but the law has been misapprehended. Upon examination of sec. 4, title 7, of the New York Code of Procedure giving jurisdiction to the marine court it does not appear that this law was designed to confer on that court power to decide cases arising on board foreign merchant vessels on the high seas. It provides that the marine court shall have jurisdiction in an action by or against any person belonging to or on board of a vessel in the merchant service, for an assault and battery or false imprisonment committed on board such vessel upon the high sea or in a place without the United States of which the ordinary courts of law of this State have jurisdiction.' The vessels referred to in that law can only mean merchant vessels of the United States. The jurisdiction of the ordinary courts of law therein alluded to is that derived from the laws of the United States. The acts of Congress authorize State courts to take cognizance of certain cases arising on merchant vessels, but it is always understood to mean vessels of the United States only, as Congress could neither exercise nor extend its control over any other; and the object of the law of New York was to include the marine court among those authorized to enforce the act of Congress." Mr. Marcy, Sec. of State, to Chevalier Bertinatti, Sardinian min., Dec. 1, 1858, MS. Notes to Italian States, VI. 178. See, to the same effect, Mr. Forsyth, Sec. of State, to Mr. Harrison, Dec. 7, 1837, 7 MS. Desp. to Consuls, 180. "Both the public and private vessels of every nation on the high seas and out of the territorial limits of any other state are subject to the jurisdiction of the state to which they belong, and this jurisdiction is exclusive so far as respects offences against the local laws of the vessel's nation." Mr. Fish, Sec. of State, to Gen. Schenck, min. to England, Nov. 8, 1873, "Merchant vessels on the high seas being constructively consid ered as for most purposes a part of the territory of the nation to which they belong, they are not subject to the criminal laws and processes of another nation; and any attempt of the officers or citizens of the latter to execute and serve such laws and processes on board of them can only be regarded as an illegal proceeding which their masters and crews are justified not only in disregarding but also in resisting." Mr. Blaine, Sec. of State, to Mr. Ryan, min. to Mexico, Nov. 27, 1889, This instruction related to the case of the American schooner Robert The allegation in an indictment that the offence was committed "on the high seas and within the jurisdiction of this court and within the admiralty and maritime jurisdiction of the said United States of America, and out of the jurisdiction of any particular State of the said United States of America, in and on board of a certain American vessel, the same being then and there a schooner called and named Olive Pecker,' then and there belonging to a citizen or citizens of the said United States of America whose name or names is or are to the grand jurors aforesaid unknown," was held to constitute a sufficient allegation as to the locality of the offence. Andersen . United States, 170 U. S. 481, 490-493. See, as to the cir cumstances of this case, Mr. Cridler, Third Assist. Sec. of State, to Messrs. Peabody & Co., Oct. 16, 1897, 221 MS. Dom. Let. 514; Mr. Adee, 2nd Assist. Sec. of State, to the Attorney-General, Oct. 27, 1897, 222 MS. Dom. Let. 43. That crimes committed on board merchant vessels on the high seas are subject to the jurisdiction of the nation to which the vessel belongs, see United States r. Sharp, 1 Peters C. C. 118, 121; Cushing, At.Gen., Sept. 6, 1856, 8 Op. 73. The master of a British ship was held liable to conviction for false imprisonment for transporting from Chile to England certain persons whom the Chilean Government had banished and had employed him to take to England. (Reg. v. Lesley (1860), Bell's C. C. 220, 8 Cox C. C. 269.) "I inclose herewith a copy of a dispatch recently received from A. C. Litchfield, esq., consul-general of the United States at Calcutta, in relation to the case of one John Anderson, an ordinary seaman on board the American bark C. O. Whitmore, who, it appears, stabbed and killed the first officer of the ship on the 31st of January last, while that vessel was on her way from New York to Calcutta, sixteen days from her port of departure, and on the high seas in latitude 25° 35′ N. and longitude 35° 50′ W. "You will perceive that the consul-general invoked the aid of the local police authorities in securing the safe custody of the accused, who was a prisoner of the United States, until he could complete the necessary arrangements for sending him to this country for trial, against whose municipal laws only he was accused of having offended, and that while thus in the temporary custody of the local police, the colonial authorities took judicial cognizance of the matter, claiming, under the advice of the advocate-general of the colony, that, under a colonial statute, which confers upon the courts of the colony jurisdiction of crimes committed by a British subject on the high seas, even though such crimes be committed on the ship of a foreign nation, and that inasmuch as the accused, although appearing on the ship's articles under the name of John Anderson, subject of Sweden, had declared that his real name was Alfred Hussey, and that he was a native of Liverpool and therefore a British subject, the case came within the jurisdiction of those courts. "The matter is now believed to have reached that point in the judicial proceedings where effective measures for asserting the jurisdictional rights of the United States would be unavailable in this particular case. And whilst I entertain no doubt that the accused will receive as fair a trial in the high court of Calcutta, where it is understood he is to be tried, as he would in the circuit court of the United States, in which tribunal he would be arraigned were he sent here for trial, I deem it proper, at the same time, to instruct you to bring the question to the attention of Her Majesty's Government, in order to have it distinctly understood that this case cannot be admitted by this Government as a precedent for any similar cases that may arise in the future. No principle of public law is better understood nor more universally recognized than that merchant vessels on the high seas are under the jurisdiction of the nation to which they belong, and that as to common crimes committed on such vessels while on the high seas, the competent tribunals of the vessel's nation have exclusive jurisdiction of the questions of trial and punishment of any person thus accused of the commission of a crime against its municipal laws; the nationality of the accused can have no more to do with the question of jurisdiction than it would had he committed the same crime within the geographical territorial limits of the nation against whose municipal laws he offends. The merchant ship, while on the high seas, is, as the ship of war is everywhere, a part of the territory of the ration to which she belongs. "I pass over the apparent breach of comity in the proceedings of the colonial officials as being rather the result of inadvertence and possible misconception on the part of the government law officer of the colony, than any design to question the sovereignty of the United States in this or cases of a similar nature.” Mr. Evarts, Sec. of State, to Mr. Welsh, min. to England, No. 328, July 11, The foregoing argument, so far as it rests on the supposition that a nation "Her Majesty's Government have had under consideration, in communication with the government of India, the letter addressed by Mr. Welsh to my predecessor on the 29th of July, on the subject of the trial at Calcutta, in January, 1879, of one John Anderson, a British subject, on the articles of the American bark C. O. Whitmore, who was charged with having killed the first officer of that vessel while on the high seas. In that letter, Mr. Welsh stated that, in the opinion of the Government of the United States, the exercise of jurisdiction in that case by the high court at Calcutta was a breach of comity. He urged that as regards common crimes committed on board merchant vessels on the high seas, the competent tribunals of the vessel's nation have exclusive jurisdiction of the question of trial and punishment of any person thus accused of the commission of a crime against its municipal law.' 6 "As regards the general proposition above laid down, Her Majesty's Government are not prepared to admit that a statute conferring jurisdiction on the court of the country of the offender in the case of offenses committed by its own subjects on the high seas, on board a foreign vessel, or in places within foreign jurisdiction, would violate any principle of international law or comity. "On the contrary, they are of opinion that there are many cases in which the conferring of such jurisdiction would subserve the purposes of justice and be quite consistent with those principles. "Such an assumption of jurisdiction does not involve a denial of jurisdiction on the part of the state in whose territory the offense was committed; it involves no more than an assertion of a right of concurrent jurisdiction, and the most eminent authorities on international law in this country, and also in the United States, lay down that the legislative and judicial powers of a state extend to the punishment of all offenses against its municipal laws by its subjects wheresoever committed. "But as regards the particular case of John Anderson, it appears from a report furnished by the government of India that, in the opinion of their law officers, the high court at Calcutta had jurisdiction to try the accused by virtue of the imperial act 23 and 24 Victoria, cap. 88, which extends to Her Majesty's territories in India the provisions of the act 12 and 13 Victoria, cap. 96, to provide for the prosecution and trial in Her Majesty's colonies of offenses committed within the jurisdiction of the admiralty.' "The question of jurisdiction was not raised at the trial, and no decision was therefore pronounced upon it, but Her Majesty's Government are advised by the law officers of the Crown in this country that the jurisdiction of the admiralty does not extend to offenses committed on the high seas in other than British ships. "It follows therefore from their view of the law that the high court |