No. 740.
Mr. Bayard to Mr. Hubbard.

No. 256.]

Sir: I have received your No. 511, of the 16th ultimo. You therein inquire, with reference to the application of Joseph or John Ratcliffe to have his wife registered at the consulate-general at Kanagawa, whether protection shall be granted in Japan to Japanese wives of seamen, not American citizens, serving on American vessels. The case as presented in your dispatch has had the Department’s consideration.

The first question that arises is whether a British subject who has served seven years on an American national vessel, but who is not shown to have taken any steps toward naturalization, is to be regarded as an American seaman, and as such entitled to protection by the United States consular and diplomatic officers in the East. Section No. 170 of the consular regulations for 1888 goes far to settle this question. It provides that the term “American seamen” shall be held to include—

Seamen, being citizens of the United States, regularly shipped in an American vessel, whether in a port of the United States or in a foreign port;
Foreigners regularly shipped in an American vessel in a port of the United States;
Seamen, being foreigners by birth, regularly shipped in an American vessel, whether in a port of the United States or a foreign port, who have declared their intention to become citizens of the United States and have served three years thereafter on an American merchant vessel.

It would seem from this that a foreigner, to come under this section, must have been regularly shipped in a port of the United States (as to which in the present case there is no evidence before the Department), or have declared his intention of citizenship; and even In such cases the citizenship so imputed is defined as “within the meaning of the laws relating to the discharge, relief, wages, and extra wages of seamen.”

It is true that in the case of John Ross (with which your legation is familiar), a British subject, serving on an American vessel, who while on such vessel, in the harbor of Yokohama, committed a crime, was held by the Department to be subject to consular jurisdiction at Yokohama; but between consular jurisdiction over an offense committed by a person while serving on an American ship and consular jurisdiction over such a person as a permanent landsman the distinction is great. The first relates to the flag and its incidents; the second relates to a person on shore as permanently detached from the flag. The United States can sustain jurisdiction in the first case on the ground that the flag imparts nationality. They can not sustain jurisdiction in the second case, [Page 1080] because, except in cases in Mohammedan countries of protected foreigners, which exception is rigidly marked, the only way, outside of the flag, of obtaining national protection is by naturalization. In the present case it is not alleged that Ratcliffe has even attempted to obtain naturalization.

It is not necessary to discuss the question whether Ratcliffe’s marriage at Hong-Kong in 1887 is, on the principles determined by the Department in this relation, to be regarded as valid in international law. Assuming its validity, the Department is clearly of opinion that the woman claiming on this marriage to be his wife is not entitled, as such, to the protection now claimed, even supposing he is entitled to such protection: Ratcliffe’s only claim to protection would be his distinctive character as a seaman; and his wife can not be held to take this character for the purpose of protection any more than she could take it for the purpose of navigation.

I am, etc.,

T. F. Bayard.