McCOOK, Minister Resident to C. De Varigny, His Majesty’s, November 10, 1866

Mr. McCook to C. de Varigny

Sir: I have the honor to call your attention to despatch No. 16, dated February 14, 1866, in which my predecessor, Mr. McBride, earnestly protested against the exercise, by the courts of the kingdom of Hawaii, of jurisdiction in the case of one Thomas Duane, alias Burns, a seaman shipped at San Francisco on the United States merchant ship Blue Jacket, and discharged by one of said courts, in the port of Honolulu. As the government of his Majesty paid no attention to this protest, the whole matter was laid before the government of the United States, and, in accordance with instructions received from the honorable Secretary of State, I have the honor to again call the attention of his Majesty’s government to the questions involved.

Burns (or Duane) was a citizen of the United States, appearing upon the papers of the Blue Jacket, an American ship, as one of the crew, having been shipped in San Francisco.

By the tenth article of the treaty between the United States and the Hawaiian kingdom, it is agreed that “each of the contracting parties may have in the ports of the other, consuls, vice-consuls, and commercial agents of their own appointment, who shall enjoy the same privileges and powers of the most favored nations.” Said consuls, &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 register 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.”

The wording of this section is most explicit, and I submit that the only construction which can be placed upon its meaning is that the “register of a vessel or the rolls of the crew” is final and conclusive evidence as to who constitute the crew, is all and the only evidence required to establish the fact, and as such must be considered by the authorities of the country.

The 21st article of the treaty entered into between the Emperor of France and the King of the Hawaiian Islands stipulates “that the respective consuls 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, provided the contending parties be exclusively French or Hawaiian, and the local authorities shall not be allowed to interfere unless by the approval of the consuls, or in cases where the public peace and tranquillity are disturbed or endangered.”

The United States consul derives his judicial power in part from this section of the French treaty, because by the 10th section of the treaty between the United States and Hawaii, consuls, vice-consuls, and commercial agents of the United States shall enjoy the same privileges and powers with those of the most favored nations.”

In respect to consular powers, France has been the most favored nation, and the consuls of the United States are invested with the same powers conceded to the consuls of France. Consequently, in the case of the Blue Jacket, a case simply involving the question whether a seaman, a citizen of the United States, shipped on board a vessel of the United States, was or was not one of the crew, neither party (shipmaster or sailor) being subjects of the Hawaiian government, the United States consul, and no person else, had the right to decide the whole matter.

The parties to the controversy, it is conceded, were all citizens of the United States.

The register of the Blue Jacket, and the roll of the crew, proved that Duane (or Burns) was one of the crew, his name appearing on the papers of the ship as such.

Even if the courts of these islands had jurisdiction at all, this register or roll was the only evidence they had the right to regard under the provisions of the 10th section of the treaty between Hawaii and the United States.

As the court disregarded this evidence and discharged the seaman, was it not a violation of the obligations imposed by this 10th section?

Again, the court assumed jurisdiction of the case after it had already been adjudicated by the United States consul, with full knowledge of the facts, and against his protest. Was this not also a violation of the obligations imposed by the 21st article of the treaty between France and Hawaii?

The court had no right, in the first instance, to look behind the papers of the vessel, for the treaty with the United States expressly provides that these shall be received as “final and conclusive evidence as to who constitute the crew;” and in accordance with the treaty with France, giving the consuls of each country cognizance of all matters of difference between the masters, the officers and crews of vessels of their respective countries, the consul of the United States had already made a decision which in my opinion was final. If the consul cannot decide whether a man is or is not of the crew of a vessel, then the very effect and intent of the treaty is destroyed by depriving him of the power of determining the very question upon which all order in the vessel can be supported. Unless consuls have power to decide, and decide, too, without interference from the local courts, who compose the crew of American vessels, it seems to me that all their judicial powers are useless, because upon this depends all right to impose and enforce rules for the government of the crew, and each member of the crew. If such is not the case the consuls could not rightfully take cognizance of any case until the local authorities had passed upon the validity of the shipping articles, and any and every seaman could arrest the proceedings of the consul by pleading that he had signed his shipping articles when drunk, or had been coerced by force or induced by fraud to do so.

The principle involved in this case is one which directly affects the interests of all the American shipping that touches at these islands, and I hope his Majesty’s government may see how absolutely important it is to these interests that the local courts should refrain hereafter from any interference between the masters and officers and crews of merchant and other vessels of the United States, in cases where the public peace and tranquillity of the kingdom are not disturbed or endangered.

I cannot more appropriately close my communication to your excellency than by quoting from a dispatch lately received from my own government:

“In the case of the Blue Jacket, as it must be presumed that Burns (or Duane) being on an American vessel was a citizen of the United States, the local court had not jurisdiction. Upon its appearing to the local court that it was a difference betwixt seamen, all American citizens, and that concerned the internal order of a merchant vessel of the United States, the parties should have been referred to the American consul. This seaman had applied to the consul for redress. His case had been heard, and his complaint dismissed. That fact seems to have been known to the local court which discharged him. It seems to me to have been an unlawful proceeding, and a violation of the treaty.”

I have the honor to renew to your excellency assurances of my highest consideration.

Your most obedient servant,