Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Seward to Mr. Adams
Sir: Your despatch of the 22d of June, No. 1220, suggests the propriety of adopting measures to secure for our merchant marine the protection of the British foreign deserters act of 1852.
This subject having been taken into deliberate consideration, it is deemed more convenient to proceed by way of negotiation for a consular convention than to ask the legislation which would be necessary to enable us to avail our selves of the provisions of that statute. By reference to the act of June 11, 1864, (Statutes at Large, vol. 13, page 121,) you will observe that Congress has already enacted the provisions necessary to carry into effect any consular convention coming within its terms.
The advantages to be secured by such a convention are larger than those to be attained by our acceding to a reciprocity of obligation under the foreign deserters act of 1852. For example, the act of 1852 is limited in its operation to seamen who have actually deserted, without providing for the confinement on shipboard, or on shore, of those threatening to desert, or guilty of other infractions of the internal order and discipline of the ship.
Any arrangement less comprehensive than that contemplated by the act of 1864 would involve the necessity of further legislation.
You are therefore instructed to ask her Britannic Majesty’s government to authorize Sir F. W. A. Bruce to open negotiations for a consular convention upon the general basis of the articles presented by Mr. Buchanan to Lord Clarmdon, on the 1st of March, 1855, with such modifications as may be required to conform them to the act of June 11, 1864.
For your convenience, I enclose herewith a copy of these articles, transmitted by Mr. Buchanan to this department with his despatch of the 9th of March, 1855, No. 62.
I am, sir, your obedient servant,
Charles Francis Adams, Esq., &c., &c., &c.
Mr. Buchanan to Mr. Marcy
Sir:
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I also transmit the copy of a note addressed by me to Lord Clarendon, on the 1st instant, proposing a consular convention between the two governments, together with a copy of the three articles referred to therein.
It would be tedious and useless to trouble you with a statement in detail of what passed as the different conferences between his lordship and myself in relation to this convention.
[Page 170]Suffice it to say that an obstruction has been cast in the way of this measure, so necessary for the benefit of our commerce, by the solicitor general, Sir Richard Bethell. His objections, which have been read to me, prove conclusively that he does not understand the subject. They did not appear to be satisfactory to Lord Clarendon, but yet he observed that, as it would be the official duty of the solicitor general to carry the bill necessary to give effect to such a convention through the House of Commons, it would be vain to conclude it against his opposition, or without the assurance of his support. I told him that, although it was not for me to judge, I should yet feel no apprehension whatever of the result in the House, notwithstanding the objections of the solicitor general. As I should not have undertaken this business unless I had been previously satisfied that Lord Clarendon entirely coincided with myself, I deemed it proper, especially as he has never individually manifested any change of opinion, to bring the subject in a formal manner to his notice.
One incident I ought not to forget. In a conference some time since, he said there was no necessity for a convention, so far as deserters from our merchant ships were concerned. That all the United States had to do, in order to secure their apprehension and return, was to accede to the terms of the foreign deserters act of 1852; and then her Majesty would issue an order in council, which in this respect would accomplish all we desired. I asked to see a copy of this act, and found upon its perusal that it applied to “seamen, not being slaves, who desert from merchant ships,” &c., of foreign powers. I then informed his lordship, in emphatic terms, that the Congress of the United States never would pass, and in my opinion never ought to pass, an act to give effect to this act of Parliament. It was entirely out of the question to imagine it possible that my government would consent to make the discrimination which this act proposes between slaves and freemen deserting from our vessels. And that although I believed but few, if any, slaves were employed as seamen, we could never sanction the principle which would restore the freeman, and grant permission to the slave to escape. I have since heard nothing more of this foreign deserters act. It was passed on the 17th of June, 1852, (15 Victoria, cap. 26,) and is entitled “An act to enable her Majesty to carry into effect arrangements made with foreign powers for the apprehension of seamen who desert from their ships.”
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Yours, very respectfully,
Hon. William L. Marcy, Secretary of State.
Mr. Buchanan to Earl Clarendon
The undersigned, envoy extraordinary and minister plenipotentiary of the United States has the honor to recall the attention of the Earl of Clarendon, her Majesty’s principal secretary of state for foreign affairs, to the subject of concluding a consular convention between the two governments.
The correspondence of the undersigned with American consuls in different portions of the British empire, convinced him at an early period of his mission of the great value and importance of such a convention to the foreign commerce of both nations. Having brought this subject to the notice of the Earl of Clarendon, in conversation, he was encouraged to believe that their opinions concerning it coincided. In consequence, he obtained from his government instructions and a full power to conclude such a convention; and on the 23d of November last had the honor of submitting to the Earl of Clarendon a printed copy of the existing consular convention of the 23d of February, 1853, between the United States and the Emperor of the French, with some amendments, as the basis of the negotiation.
The undersigned was subsequently informed by the Earl of Clarendon that serious objections existed to several of the details of this convention; whereupon, in order to obvious these difficulties, he proposed to confine the negotiation to three points, which he deemed the most essential. These were: 1. That seamen of the one party deserting from merchant vessels or ships of war, while in the ports of the other party, should be restored. 2. Than individuals who had been guilty of murder, mutiny, or other high crimes on board the merchant vessels of one party on the high seas, beyond the territorial jurisdiction of either, should not be permitted to escape on the arrival of such vessels in the ports of the other party. And 3. That the merchant vessels of the one party, upon touching or arriving at the ports of the other, should not have their voyages interrupted or destroyed by vexatious lawsuits, arising out of trifling disputes between the masters and crews of such vessels, and relating exclusively to them, which could be much better adjusted upon their return to their own country.
The undersigned having since learned that the British government are not yet entirely satisfied to accede to these three propositions, has deemed it proper to present them in the form of three distinct articles, which he has now the honor of enclosing to the Earl of Clarendon. He will make a very few observations on each of them. And—
1. In regard to restoring deserters. The wonder is, that a stipulation for this purpose [Page 171] should have been so long delayed between two nations whose commercial intercourse is so vast. It is obviously the dictate of mutual justice, as well as policy, that seamen of the one arriving in the ports of the other, should not be permitted to desert their vessels, and leave the master without the necessary crew. The United States have treaties with all other commercial nations providing an appropriate remedy for this evil. From the information which the undersigned has received, he believes that in the ports of the United States deserters from British merchant vessels have been generally restored in the same manner as those from the vessels of other nations. The same inconvenience and loss have not therefore been experienced by British as by American vessels. As soon, however, as it shall be extensively known that an unlimited license is reciprocally permitted by the two countries to desertion of the seamen of the one in the ports of the other, the balance of injury will at least be equalized.
Surely it would be no hardship on the seamen of either nation to compel them to perform their contract according to its terms. Besides, a provision to this effect would prevent desertion and render the application of the remedy in most cases unnecessary.
2. If it would be wrong to permit deserters from merchant vessels to escape, it would be much more so to suffer those who have committed murder, mutiny, or other high crimes on shipboard, beyond the territorial jurisdiction of either of the parties, to go at large perfectly free from all danger of trial and punishment, upon their arrival in the ports of the other party. A bare statement of this proposition would seem to be sufficient. The necessity for a treaty stipulation on this subject cannot be more forcibly illustrated than by the case, perfectly within the Earl of Clarendon’s knowledge, of mutiny which occurred on board the American ship Sovereign of the Seas, in the month of March last, on her voyage from Melbourne to London. On that occasion ten persons, proved to have been guilty of mutiny, were discharged from confinement for the reason that no law exists in Great Britain authorizing their detention. And, indeed, Captain Warner, the master of the vessel, deemed himself quite fortunate in having escaped a suit for false imprisonment, with which he had been threatened by the mutineers. Thus, as the law stands at present, mutiny may be committed on the high seas, on board any American vessel bound to a British port, with perfect impunety. The lives of the passengers and the crew may thus be endangered or destroyed, and the property or freight, whether belonging to American citizens or British subjects, be indiscriminately plundered.
At an early period of the history of the United States, instructions were issued to American consuls abroad, prescribing the mode in which they should proceed by deposition to ascertain the guilt of individuals charged with having committed “piracy, mutiny, or any other offence against the laws of the United States” on board of American vessels arriving in their respective consular districts; and after having performed this duty, they were then directed “to apply to the local authorities for means of securing the offenders while they remain in port, and to provide the means of sending them without delay to the United States for trial.” The undersigned has never heard that such an appeal to the local authorities of any other country has been disregarded, though he is satisfied that no law exists in this country which would justify such British authorities in interfering. Hence has arisen, even with a view to self-protection, the absolute necessity of a treaty stipulation to prevent the greatest criminals from being turned loose to prey upon society.
3. The third article, which is similar to that now in force between the United States and several commercial nations, will require a brief explanation. The principle on which it rests is, that the great interests of commerce should not be seriously injured by trifling differences and disputes which may have arisen during the previous voyage between the master and the crew of a British vessel arriving in an American port, and so vice versa, in no manner affecting individuals of the country where the vessel temporarily remains. This article, therefore, relates exclusively to such disputes, and prohibits the parties from commencing lawsuits against each other before a foreign tribunal, concerning wages, contracts, and the internal police of the vessel, which, can be far more satisfactorily decided after their return home, by the tribunals of the country to which the vessel belongs.
But from abundant caution, and in order to prevent the possibility of injustice in cases requiring a speedy redress, the article propose s to refer such disputes for immediate but temporary adjustment to the consul of the proper country, acquainted with its laws and usages, leaving either party at perfect liberty, on the return home of the vessel, to pursue his remedy just as though there had been no such adjustment.
Great inconvenience and loss have resulted from these petty lawsuits in British ports to American vessels. A single litigious or mischievous person on board, by instituting a suit against the master of a British or American vessel in a port of the other party, at which she happens to touch or arrive, may retard or break up the voyage altogether. The master may not be able to find the necessary security at a place where he is entirely unknown, and his imprisonment is the consequence. And even if he can obtain security, it is in most instances but of the question, that he should be able to return and attend the trial. Surely, neither Great Britain nor the United States have any reason to distrust the judiciary of the other in deciding these differences among their own people, according to their own laws; and the masters, officers, and crew cannot suffer injustice by merely postponing their lawsuit until the termination of the voyage and return home of the vessel.
[Page 172]The government of the undersigned is convinced that the embodiment of the three accompanying articles, with such amendments as may be deemed advisable in a convention, would be highly advantageous to the commerce of both countries, and could do no possible injury to either. Other stipulations might be beneficial, but these are the most important.
The undersigned has the honor to renew to the Earl of Clarendon the assurance of his distinguished consideration.
[Untitled]
Article I.—Deserters.
That deserters from the merchant vessels or ships of war of either of the high contracting parties, whilst in the ports of the other, shall be restored. For this purpose, the proper consuls general, consuls, vice-consuls, and commercial agents of the one party may apply in writing to any court, judge, justice, or other magistrate of the other party, having competent power to issue warrants, stating that the person or persons named has, or have, deserted from a merchant vessel, or ship of war, whilst in any port of the other party, and on proof by the exhibition of the register of the vessel, ship’s roll, or other official document, that such person or persons belonged at the time of desertion to the crew of any such vessel or ship of war, it shall be the duty of the said court, judge, justice, or other magistrate, to issue his or their warrants to cause the said person or persons to be arrested for examination, and if on examination the facts stated are found to be true, then the person or persons so arrested shall be delivered up to the proper consul general, consul, vice-consul, or commercial agent, to be sent back to the vessel or vessels from which they had deserted, or on the request and at the expense of the said consuls general, consuls, vice-consuls, or commercial agents, they shall be detained in confinement until an opportunity shall be found to send them back to the country to which the vessel from which they had deserted belongs. And the said consuls general, consuls, vice-consuls, and commercial agents of the respective parties Shall receive all necessary aid and assistance from the proper local authorities of the other party, for the search, arrest, detention, and sending back of such deserters: Provided, That no such person shall be detained in confinement more than three months after his arrest, but at the end of that period shall be set at liberty, and shall not again be molested for the same cause: And provided, also, That if any such deserter shall have committed any crime or offence, his surrender may be delayed until the proper tribunal before which the case shall be depending may be cognizable shall have pronounced its sentence, and this sentence shall have been carried into effect.
Article II.—Criminals.
When the crimes of mutiny or revolt, or the attempt to commit mutiny or revolt, murder or assault with intent to commit murder, piracy, robbery, &c., &c., have, been committed on board the merchant vessels of one of the contracting parties on the high seas, and beyond the territorial jurisdiction of either, the accused persons shall not be suffered to escape on their arrival in such vessels, in the ports of the other party, but shall be sent to the country for trial against whose laws they have offended. For this purpose it shall be the duty of the consul general, consul, vice-consul, or commercial agent at the port where such merchant vessel shall have arrived, to make application in writing to any court, judge, justice, or other magistrate, having competent power to issue warrants, for a warrant to cause such accused person to be brought before him for examination, as well as process to compel the attendance of witnesses. And it shall be the duty of the said consul general, consul, vice-consul, or commercial agent, to cause to be brought before the said court, judge, justice or other magistrate, the witnesses to prove the commission of such crime, whose testimony shall be taken by deposition, signed by the said witnesses; and if it shall appear to such court, judge justice, or magistrate, that the testimony thus given is sufficient in law to warrant the trial of the accused for the crime with which he is charged, then it shall be his or their duty to remand him to the custody of the master of the vessel from on board of which he had been brought for examination, to be sent therein for trial to the appropriate jurisdiction, or upon the request and at the proper cost and charge of the consul general, consul, vice-consul, of commercial agent, to cause him to be imprisoned and confined until he can be sent for trial to the appropriate jurisdiction in some other merchant vessel belonging to the same party. And they said consuls general, consuls, vice-consuls, and commercial agents of the one party shall receive all necessary aid and assistance from the proper local authorities of the other party to prevent the escape of such accused persons, and to cause them to be arrested in case they should have escaped, and for securing them from the time of their arrival in ports until their departure: Provided, This period shall in no case exceed three months: And provided, also, That all expenses incurred under this article shall be borne by the proper consul general, consul, vice-consul, or commercial agent.
[Page 173]Article III.— Consular jurisdiction in cases exclusively pertaining to the masters and crews of vessels belonging to the country of the consul.
In order to prevent the interruption or loss of the voyages of merchant vessels by vexatious lawsuits for trifling causes in a foreign country between the masters, officers, and crew, which may be more appropriately referred for final decision to the tribunals of the country to which such vessels belong, it is agreed that the said consuls general, consuls, vice-consuls, and commercial agents of the one party shall have the exclusive right to sit as judges and arbitrators in reference to disputes concerning wages, the execution of contracts, and the internal order and police of such vessels, whilst in the ports of the other party, between the masters, officers, and crew of such vessels, without the interference of the local authorities, unless the conduct of the master, officers, or crew should disturb the order or tranquillity of the country, or the said consuls general, consuls, vice-consuls, or commercial agents should require their assistance, which shall not then be refused in executing or supporting their own decisions. But this species of judgment or decision should only have a temporary effect, and shall not deprive the contending parties of their right to resort, on their return, to the judicial authority of the country to which the vessel belongs.