'File 35/85 III A 10 French Flag Question' [‎49v] (109/610)

APPENDIX 5.
Wildenhm* Case.
" Homicide was committed in the course of an affray between two mem
bers of the crew of a Belgian ship lying in the port of Jersey City in
the United States. A claim was made by the Belgian Consul that
the offence was justiciable only under Belgian law, because of the
terms of the Convention of the 9th March, 1880, between Belgium
and the United States. The controversy was settled in the Supreme
Court of the United States by a deoision that the offence was
justiciable in the State of New Jersey.' 5 (Wildenhus* Case 1887,
reported 7 Supreme Court Reporter 385 and 120 U. S. Supreme
Court Reports 1.)
Below is an extract from the judgment of Mr. Waite, then Chief Justice
of the United States:—
{< It is part of the law of civilized, nations that, when a merchant-vessel of
one country enters the ports of another for the purposes of trade, it subjects
itself to the law of the place to which it goes, unless, by Treaty or otherwise^
the two countries have come to some different understanding or agreement; for,
as was said by Chief Justice Marshall in The Exchange 7 Cranch, 144 : 'It
would be obviously inconvenient and dangerous to society, and would subject
the laws to continual infraction and the Government to degradation, if such
merchants did not owe temporary and local allegiance, and were not amenable
to the jurisdiction of the country.' [United States v. Diekelman 92, US 520 •
1 Phillim., 4 Int. Law 5 (3rd Ed.) 483, section 351; Twiss, ' Law Nat '' 229^
section 159; Creasy, 'Int. Law/ 167, section 176; Halleck, ' Int. Law' (1st
Ed.), 171.] And the English Judges have uniformly recognised the rights of
the Courts of the country of which the port is part to punish crimes committed
by one foreigner on another in a foreign merchant-ship. (Lieg, v. Cunningham
Beil,'Cr Cas.,'72; S.C. 8, Cox, 'Or. Cas./ 104; P^g. ^ Anderson. 11, Co^
'Cr. Cas., 198, 204; S C.L.R. 1, ' Cr. Gas./ 161,165 ; Reg. Keyn, 13 Cox
* Cr. Gas.,' 403, 486, 526; S.C. 2, Exch. Div., 63,161,213.) As the owner
has voluntarily taken his vessel, for his own private purposes, to a place within
the dominion of a Government other than his own, and from which he seeks
protection during his stay, he owes that Government such allegiance for the
time being, as is due for the protection to which he becomes entitled.
"Erom experience, however, it was found long ago that it would be bene
ficial to commerce if the local Government would abstain from interfering with
the internal discipline of the ship, and the general regulation of the rights and
duties of the officers and crew towards the vessel, or among themselves. And
so by comity it came to be generally understood among civilized nations that
all matters of discipline, and all things done on board, which affected onlv the
vessel, or those belonging to her, and did not involve the peace or dignitv of
the country, or the tranquillity of the port, should be left by the local Govern
ment to be dealt with by the authorities of the nation to which the vessel
belonged as the laws of that nation, or the interests of its commerce, should
require. But if crimes are committed on board of a character to disturb the
peace and tranquillity of the country to which the vessel has been brought the
offenders have never, by comity or usage, been entitled to any exemption from
the operation of the local laws for their punishment, if the local tribunals see
fit to assert their authority. Such being the general public law on this subiect
Treaties and Conventions have been entered into by nations having commercial
intercourse, the purpose of which was to settle and define the rights and duties
of the Contracting Parties with respect to each other in these particulars and
thus prevent the inconvenience that might arise from attempts to exercise
conflicting jurisdictions."
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