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principles of general policy, this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it.'

"In the absence *** of treaty stipulations, however, the case of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs; framed also with a view to secure, in accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill-treatment. On general principles of comity, Admiralty Courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.

"But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris, that is, where they arise under the common law of nations, special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be, whether it is expedient to exercise it. * * *

"In another case, Justice STORY examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an Admiralty Court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sita. He added: With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy.'

"That, as we have seen, was a case of bottomry, and Justice STORY in answer to the objection that the contract might have been entered

into in reference to the foreign law, after showing that such law might be proven here, said: In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civilized countries these are in general substantially governed by the same rules.'

"Justice Story's decision in this case was referred to by Dr. Lushington with strong approbation in the case of the Golubchick 1 W. Rob., 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case. * * *

"A Danish ship was sunk by a Bremen ship, and on the latter being libelled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr, LUSHINGTON who, amongst other things, remarked: An alien friend is entitled to sue (in our courts) on the same footing as a British-born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comitatus, no objection could have been taken. Reference being made to the observations of Lord Stowell in cases of seamen's wages, the judge said: 'All questions of collision are questions communis juris; but in case of mariners' wages, whoever engages voluntarily to serve on board a foreign ship, necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, therefore, respecting cases where both parties are foreigners is, whether the case be communis juris or not. *** If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost, for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress.'

"In the subsequent case of the Griefswald, 1 Swabey, 430, decided by the same judge in 1859, which arose out of a collision between a British barque and a Persian ship in the Dardanelles, Dr. LUSHINGTON Said: 'In cases of collision, it has been the practice of this country, and, so far as I know, of the European States and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable.'

"The subject has frequently been before our own Admiralty Courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. * * *

"Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts; neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge DEADY very justly said, in a case before him in the district of Oregon: The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found.' Bernhard v. Greene, 3 Sawyer, 230, 235.

"As to the law which should be applied in cases between parties, or ships, of different nationalties, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted."

SECTION 20.-MUNICIPAL SEizures BeyoND THE THREE-MILE LIMIT.

CHURCH v. HUBBART.

SUPREME COURT OF THE UNITED STATES, 1804.

(2 Cranch, 187.)

Held, that a State may seize foreign merchant vessels beyond a marine league from the coast, in order to enforce its navigation and revenue laws.

While the American vessel Aurora was between four and five leagues from the Brazilian coast she was seized by the government of Brazil for attempting to carry on illicit trade with its citizens. Upon the controversy as to whether the government of Brazil had a right to seize a foreign vessel so situated, MARSHALL, C. J., says: ** As a general principle, the nation which prohibits commercial intercourse with its colonies must be supposed to adopt measures to make that prohibition effectual. They must, therefore,

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be supposed to seize vessels coming into their harbors or hovering on their coasts in a condition to trade. ***

"To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory and is a hostile act, which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the high seas for contraband of war, is universally admitted, because the belligerent has a right to prevent the injury done to himself by the assistance intended for his enemy; so, too, a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right, is an injury to itself which it may prevent, and it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boundaries, which remain the same at all times and in all situations. *

"In different seas and on different coasts, a wider or more contracted range, in which to exercise the vigilance of the government of the country, will be assented to. Thus in the channel *** the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits, but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be extended somewhat further. *

"The right of the Spaniards was supposed to be exercised unreasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their batteries. Indeed, the right given to our own revenue cutters, to visit vessels four leagues from our coast, is a declaration that in the opinion of the American government, no such principle as that contended for, has a real existence." 1

1 Mr. Dana, in speaking of this decision (Dana's Wheaton, p. 259, note), says, as to the assertion that the seizure of a vessel four leagues from the coast does not render the seizure invalid, "this remark must now be treated as an unwarranted admission. *** It may be said that the principle is settled, that municipal seizures cannot be made, for any purpose, beyond territorial waters. It is also settled, that the limit of these waters is, in the absence of treaty, the marine league or the cannon-shot. It cannot now be successfully maintained, either that municipal visits and search may be made beyond the territorial waters for special purposes, or that there are different bounds of that territory for different objects. *** In

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SECTION 21.-PIRACY.

OPINION OF SIR LEOLINE JENKINS.

CHARGE TO THE JURY, 1668.

(Life of Sir Leoline Jenkins, I., 86.)

Definition and character of Piracy.

"There are some sorts of felonies and offences, which cannot be committed anywhere else but upon the sea, within the jurisdiction of the Admiralty. These I shall insist upon a little more particularly, and the chiefest in this kind is piracy.

"You are therefore to inquire of all Pirates and sea-rovers; they are in the eye of the law hostes humani generis, enemies not of one nation or of one sort of people only, but of all mankind. They are outlawed, as I may say, by the laws of all nations, that is, out of the protection of all princes and of all laws whatsoever. Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and to root them out.

"That which is called robbing upon the highway, the same being done upon the water is called piracy. Now robbery, as 'tis dis

the earlier cases, the courts were not strict as to standards of distance, where no foreign powers intervened in the causes. In later times, it is safe to infer that judicial as well as political tribunals will insist on a line of marine territorial jurisdiction for the exercise of force on foreign vessels in time of peace for all purposes alike."

There still stands upon the Statute Book of the United States a law passed in 1799 authorizing their revenue officers to stop and visit foreign vessels four leagues from the coast. The British "Hovering Act,” passed in 1734, and which doubtless suggested the American Act, contained a similar provision. But this, says Mr. Boyd (Boyd's Wheaton, p. 241), has long since been repealed. "The present customs' legislation makes a distinction as regards the extent of jurisdiction claimed for revenue purposes, between ships belonging to British subjects and ships belonging to foreigners." There is no longer any authority under English laws to visit a foreign vessel beyond the three-mile limit. (See Customs Consolidations Act, 1876, Sec. 134.)

See further on this subject, the case of Rose v. Himely, 1808, 4 Cranch, 241, in which the Supreme Court of the United States held that a seizure, under customs' regulations, of a foreign vessel beyond the territorial waters of a State was not valid. See also, the case of Hudson v. Guestier, 1810, 6 Cranch, 281.

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