De Varigny to Henry B. Rouse, February 1, 1867

Mr. de Varigny to Mr. Roust

Sir: On the 22d of November last I had the honor to acknowledge the receipt, from the legation of the United States, of a despatch, No. 5, under date of November 10, relating to the question of jurisdiction of the supreme court of this kingdom over the case of one Thomas Duane, alias Burns.

The able and elaborate communication to which I now reply has been duly submitted to his Majesty and cabinet, and has received at their hands the mature consideration to which it was entitled.

Before proceeding with my answer to the arguments embodied in the above-mentioned communication, I desire succinctly to recapitulate the facts that have led to this correspondence.

Thomas Duane, alias Burns, and whose name is undoubtedly Thomas Burns, arrived at Honolulu from San Francisco in the Blue jacket, a vessel bearing the flag of the United States. On his arrival here he denied that he had ever signed the shipping articles, and contended that he was not bound to remain on board. The master of the ship claimed that Burns had passed himself off to him, on board his vessel at San Francisco, as the real Thomas Duane. It appears from the testimony produced before the court to be an undisputed fact that there was an individual, not Thomas Burns, but who was rightly called Thomas Duane, who could read and write, and who had actually and voluntarily signed the shipping articles of the Blue Jacket. It appears likewise from the same testimony that Burns was unable to read and write, and that he had neither signed the articles nor performed any act equivalent thereto.

Under these circumstances Burns applied for relief, unsuccessfully, to the consul of the United States, and then sued out a writ of habeas corpus, upon which, after a diligent inquiry, he was set at liberty by Hon. G. M. Robertson, one of the judges of the supreme court. The consul of the United States protested to the court, and the late minister resident of the United States protested to his Majesty’s government against what they both claimed to be an usurpation of jurisdiction.

You are further aware, sir, that, subject to these protests, the master of the ship appeared in court, was represented by counsel, who, in his behalf, examined witnesses who were produced by him or in his interest, and that, in every respect, both sides of the cause were fully represented before Mr. Justice Robertson.

It is argued, first, that under the tenth article of the treaty concluded between the United States and the Hawaiian kingdom, the Hawaiian tribunal had no right to adjudicate on the case; and, secondly, that the twenty-first article of the French treaty, from which the United States consul derives his judicial power in part, in virtue of the parity clause, secured to the consul alone the right of taking cognizance of the whole matter.

The tenth article of the treaty between the United States and this kingdom provides distinctly that “said consuls, &c., &c., are authorized to require the assistance of the local authorities for the search, arrest, detention, and imprisonment of the deserters from the ships of war and the merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges, and officers, and shall in writing demand the said deserters, proving by the exhibition of the registers of the vessels, or the rolls of the crews, or by other official documents, that such individuals formed part of the crew, and this reclamation being thus substantiated, the surrender shall not be refused.”

In reply to the argument based on this article, I would beg to state that the order of arrest issued by the consul of the United States was so worded as to leave in doubt the identity of the seaman; that it was on this very question of identity that Mr. Justice Robertson was called upon to adjudicate; that it has been the uniform practice of our courts to investigate such cases, and that the legality of their so doing under a writ of habeas corpus has never been questioned up to this day.

After a full investigation of the case Mr. Justice Robertson ordered the man to be discharged, and the then minister of the United States protested officially, on the 14th of February, 1866, against “the assumption of jurisdiction, by one of the judges of the supreme court, in the case between Captain Dillingham, commander of the American ship Blue Jacket, now (then) in this port, and one Thomas Duane, alias Burns, one of Captain Dillingham’s crew.” I duly acknowledged, on the 16th of same month, the receipt of said protest, and informed the minister resident of the United States that the decision of one of the judges of the supreme court was not the final decision of the supreme court of the kingdom.

Permit me now, after one year’s interval, to call especially your attention upon the fact that no appeal was ever claimed from the decision of Mr. Justice Robertson to the full court, although the statutes and judicial decisions of this kingdom recognize that right to the fullest extent. Vide Civil Code of the Hawaiian Islands, secction 859. In re Flanchet, 2 Hawaiian Reports, 113. In re Kauffman, 2 Hawaiian Reports, 317.

In the opinion of his Majesty’s government the protest entered by his excellency, the minister resident of the United States, fails in this most important respect: it does not show that all the remedies provided by laws and usages of this kingdom for redress of private wrongs had been resorted to without success. In other words, the case presented has not reached that stage which warrants an appeal for redress from one sovereign to another.

This, one of the first rules of international law, obtains amongst all nations, and ever since the memorable reply of Great Britain, in 1753, to the King of Russia, it has been the very basis of international law, that “the law of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in cases of violent injuries directed or supported by the state, and justice absolutely denied in re minimi dubia by all the tribunals and afterwards by the prince.

It is hardly necessary for me to add that, although particularly referable to the case of reprisals, this principle extends to all cases of national despatches. Numerous quotations could be made to support the assertion should any be required.

In the case of Signer D. Pacifico, in 1850, which attracted attention, as the conduct of the British foreign minister, in neglecting to exhaust all judicial remedies, was the object of a direct vote of censure in the British House of Lords, the same principle was asserted. The minister of foreign affairs (Viscount Palmerston) in his defence, which barely saved him from a similar censure in the House of Commons, fully recognized the principle of the British letter of 1753, upon which the Greek ministry were making a stand, but resisted its application solely upon the ground “that the character of the judicial tribunals of Greece rendered it a mockery to expect justice at their hands.” Yet, even of this defence, which served the political necessity of the hour, the most recent English writer upon international law remarks that “he is bound to say that the evidence produced does not appear to be of that overwhelming character which alone could warrant an exception from the well-known and valuable rule of international law upon questions of this description.” It is, of course, impossible for me to admit that any similar argument could be made use of in regard to the supreme court of this kingdom, whose standing is such, both within these islands and the United States of America, that no attempt to impair or limit the full force of international law on account of the insufficiency of the tribunal would be tolerated in either country.

I am further instructed to add, what has been up to this day the invariable answer of this government in all similar cases, that in view of the importance which attaches to controversies between nations, it is the duty no less than the right of every sovereign to refrain from investigating any dispute originating in personal differences, until the complaining party has vindicated his right to make the demand by an exact compliance with all the conditions which the usages of international law have made indispensable.

It is further argued that the 21st article of our treaty with France grants to consuls far more extended powers than were conceded by this kingdom to any consuls previous to its ratification; that the said 21st article provides, “That the consuls (French in Hawaiian ports and Hawaiian in French ports) shall be exclusively charged with the internal order on board of the merchant vessels of their nations, and shall alone take cognizance of all the crimes, misdemeanors, and other matters of difference in relation to said internal order which may supervene between the masters, the officers, and the crew, providing the contending parties be exclusively French or Hawaiian,” &c., &c.

It is finally argued that the 10th article of our treaty with the United States provides that “consuls, vice-consuls, and commercial agents of the United States, shall enjoy the same privileges and powers with those of the most favored nation,” and that consequently the powers granted by our treaty with France to French consuls belong by right to the United States consuls.

On this important point, sir, I am instructed to reply most distinctly that his Majesty and cabinet entertain an entirely different opinion; that the powers granted to French consuls in Hawaiian ports are dependent entirely upon the recognition by the French authorities of similar powers in Hawaiian consuls in French ports; that this clause is most clearly a reciprocal clause, the benefit of which may and will be extended to consuls of the United States and of other powers having treaties with this kingdom the moment they will notify his Majesty’s government of their desire to avail themselves of its benefit, and their readiness to grant the reciprocity conceded by France. The Hawaiian government are at a loss to conceive how the benefit of a reciprocity clause can be positively claimed from them in virtue of the parity clause, unless the government claiming it be ready to concede the same advantages in consideration of which it was granted.

The parity clause merely insures to the government having with this kingdom treaty stipulations the right of applying for and obtaining the same advantages granted to others on the very same terms. You are well aware, sir, that the government of the United States never have, at any time since 1857, informed his Majesty’s government of their desire to secure to themselves the benefit of the stipulations of the 21st article of the French treaty; you are well aware that on this question of consular jurisdiction they have ever most jealously guarded their right of territorial jurisdiction, and have never conceded to any power, nor embodied in any of their treaties such a clause as the one now claimed here on behalf of American consuls.

Having replied at full length to the despatch of his excellency the minister resident of the United States, I beg to express my sincere conviction that the arguments presented on behalf of his Majesty’s government will satisfy the government of the United States of the earnest desire entertained by the King and his cabinet to preserve undisturbed the friendly relations that have so long existed between them, and that these explanations will remove from their mind the impression that the Hawaiian government had failed to observe the stipulations contained in their treaties.

I have the honor to renew to you the assurances of the very distinguished consideration with which I remain your very obedient servant,