William H. Seward to Charles Francis Adams, August 6, 1866

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,

[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.

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.