The undersigned is unwilling for the courier to return to Washington without bearing the promised reply of his excellency; and for that purpose, and that alone, he has directed that Mr. O'Brien remain a reasonable time in Santiago. From the great disappointment which his excellency may well imagine would be felt at Washington in the event of the return of the bearer of despatches without his reply, the undersigned will not permit himself to doubt that the minister of foreign relations will perceive the importance of giving his early attention to this case.

The undersigned avails himself of this opportunity to renew to his excellency assurances of his distinguished consideration.

BALIE PEYTON.

M.

[Translation.]

SANTIAGO, April 29, 1852.

SIR By order of the President, I have the honor to reply to the notes of your excellency of the 15th of June, 1851, and the 16th of March last, relative to the pretended impressment, or forced extraction, of four mariners from the whale-ship "Addison," by the authorities of Valparaiso. I regret the delay that has occurred in this reply; but the grave and urgent engagements of the government, in matters of the highest importance, have made it inevitable.

Your excellency will permit me, before descending to the facts, to set forth the views of my government concerning certain questions of international law, which are touched upon in the two before-mentioned notes, and concerning which my government cannot accept the conclusions of your excellency. I propose to investigate these questions, availing myself, as far as it may be possible for me to do so, of American authorities. One of the questions to which I allude is relative to the right of jurisdiction of the local authorities over foreign merchant vessels. That this right exists as to foreign vessels in the ports and waters which pertain to the dominion of the local sovereignty appears to me a point incontrovertible, although there may be a variety of opinions as to the limitations and restrictions to which that right is subject. Wheaton, designating the limits of the judicial power of every independent state, says that it extends to offences committed against its own laws, by whatever persons, (by any personspor cualesquiera personas") within its own territory; to the same offences committed by whatever persons, on board of its public and private vessels on the high seas, and on board of its public vessels in foreign ports; and to the same offences committed by its subjects, wheresoever they may be committed. (Elements of International Law, page 169, third edition.) It appears to me to be clearly deducible from this doctrine, that the local authorities may exercise jurisdiction concerning offences committed on board of foreign vessels in its waters, when they violate thereby the laws of the local sovereignty.

The same author establishes, conclusively, that both public and private vessels, of whatever nation, on the high sea, or beyond the territorial limits of every other state, are subject to the jurisdiction of the state to which they belong, (page 157.) Public vessels or vessels of war, which enter a friendly port, generally open to those of their class, are not subject, according to the practice generally received, to the local jurisdiction, (page 150;) but merchant vessels are. I refer to the quotation from the 148th page of Wheaton, in my note of the 10th of June, 1851.

The laws of France establish a distinction. In the case of a foreign vessel in a French port, or even in cases of offences committed by a person who is one of the officers or crew of the vessel, against another person of the same officers or crew, and if by such acts the peace of the port is not disturbed, the French courts decline to take cognizance of them; but in offences committed on board against persons who do not belong to the officers or crew, or by whatever person who does not belong to the same, or in offences committed by the officers, or even among themselves when they disturb the peace of the port, the French tribunals assume jurisdiction. This, notwithstanding, is peculiar to the jurisprudence of France, because, as observes the same illustrious American publicist, French legislation cuts off, in favor of such vessels, the local jurisdiction to an extent which the general principles of international law do not seem to require. Thus, as it is at the option of a nation to prescribe the conditions which it pleases to the admission of foreign vessels in its ports, so also is it free to extend, as far as it pleases, the immunities to which foreign vessels, which enter by virtue of its tacit permission, may have right by the general law and the practice of nations; (pages 152 and 153.)

This is not opposed to the assumption of jurisdiction in an offence perpetrated in the territory of a nation, by the subject or citizen of another, by the tribunals of the nation of the delinquent, in cases particularly designated by the statute laws of the same nation; as, according to the same respectable writer, happens in the United States and in Great Britain.

But if, as a general rule, criminal acts are from their nature local, and it is competent for the courts of the country in which the offence was committed to take cognizance of them, as the common law of England, generally adopted in the United States, recognises it—and even I believe that I could add the jurisprudence of all civilized nations-the particular statutes of certain nations cannot abolish a rule of justice, generally established, and, in my judgment, do no more than constitute, concerning the matter, two concurrent jurisdictions. If the criminal act be of that class which infringes the laws existing in the territory, I do not think that any one can dispute the competency of the local tribunals to punish the foreign delinquent, although the act may be also of that class whose judgment may be assigned by the said statute laws to the courts of the foreign

nation.

Nothing can be more decisive on this point than the doctrine of Kent, copied in my note of the 24th of June. "This jurisdiction,' (of French consuls in the United States,) observes Kent, was

merely voluntary, and destitute of all coercive authority; and, at present, we have no treaty which concedes to consuls even these limited functions." (Commentaries on American Law, vol. 1, pp. 42 and 43, edition of 1832.) It is seen, then, that in the opinion of this eminent jurisconsult, all judicial power of consuls in a foreign country, and consequently all limitation of the judicial power inherent in the local authorities within its own territory, cannot have its origin save in a voluntary concession of the local sovereignty. France is perhaps the nation that has sought to give the greatest extension to the powers of its consuls in a foreign country. But, notwithstanding, her cwn jurisconsults admit that, in the matter of consular jurisdiction, the practice of nations is very different. "In some countries, the mere act of exercising consular jurisdiction, even concerning national affairs, would be considered as a violation of the rights of local jurisdiction; and in such a case, the consuls of France ought to abstain from exercising it, it remaining at the discretion of the government to oppose reprisals of reciprocity against the State that refuses to the consul this jurisdiction." (Pardessus, Droit Commercial, vol. 6, p. 286, edition of 1842.) It is true that, in disputes relative to wages and agreements of enlistment between captains and crews, and even between captains and passengers, a kind of unanimous consent of nations authorizes the exercise of consular jurisdiction;" (page 289.) But this kind of unanimous consent does not exist; and Pardessus himself admits it, since, citing a French ordinance which appears not to admit in consuls more than a conciliatory intervention, concerning these matters, he is of opinion that it ought not to be applied save in those countries in which the local authority does not permit consuls to establish themselves in them, and reserves to itself the right of judging in virtue of its territorial competency; (page 290.) If I am not much deceived, the practice of Great Britain and of the United States is particularly alluded to in this passage. It will be permitted to me also to observe, in passing, that even admitting the consular jurisdiction in the sense of Pardessus, there might have been an exception to it; for, in the case in which the individual makes demands against the captain, he might have been of the same nation in whose territory the dispute arose. Passing, for the present, authorities legal and judicial, the Spanish law prescribes that consuls cannot exercise any jurisdiction, although it may be among subjects of their own sovereignty, except to settle amicably and extrajudicially their differences. (Law 6, title 2, book 6, Nov. Rec.) It will not be inopportune to remark, that the laws of Spain are in force in Chile, so far as they have not been abolished: that which I have just cited has not been; consequently, as regards those foreign vessels which participate in our commerce, and which by the act of visiting our ports submit themselves to the legislation of the country, there is a special reason for not conceding to consuls the exceptional jurisdiction referred to.

I have examined the consular instructions presented by the President of the United States to Congress on the 2d of March, 1833. I see in them nothing which indicates the existence of a judicial power in American consuls.

The matter of local jurisdiction over foreign merchant vessels was a point which was touched upon by the negotiators of the treaty of Washington of 1842, between the United States and Great Britain. But, nevertheless, this treaty does not contain any declaration or provision which, as respects the jurisdiction of the local authorities over foreign merchant vessels, recognises or establishes any rule which may alter the former state of things even between the contracting parties.

By some decisions of the American courts, it would appear that their jurisdiction over foreign merchant-vessels extends even to of fences committed on the high seas. The superior court of New York laid down in 1817 this rule: "The State courts have jurisdiction in actions for wrongs and injuries committed on board of a foreign vessel on the high seas, both parties being foreigners; for personal injuries are of a transitory nature, and follow the person or the forum of the criminal. (Elliott's Diplomatic Code, page 304, edition of 1834.) A court of Massachusetts in 1823 decided that the court of admiralty has jurisdiction over offences and personal injuries committed against a passenger on the high seas; (page 306.) The same appears to be extended to civil matters. That a court of admiralty has cognisance in foreign maritime contracts, has been judicially decided several times, and particularly in Massachusetts, in the year 1815; (page 341.) Are not contracts between captains and mariners essentially maritime? But without insisting upon this latitude of jurisdiction, it is sufficient for me to refer to a celebrated decision of the Supreme Court of the United States, pronounced by Chief Justice Marshall, in the following terms: "The jurisdiction of the nation without its own territory is necessarily exclusive and absolute. It is susceptible of no limitation which it has not itself imposed. Any restriction on this subject, whose validity should be derived from an external source, would involve a corresponding diminution of its sovereignty, and the investiture of this sovereignty in the power that might impose such a restriction. All the exceptions, then, to the full and complete power of a nation within its own territory ought to be derived from the consent of the nation itself, as their first origin; they cannot emanate from any other legitimate source." (Cranch's Reports, vol. 7. page 136.)

I do not dissent. Mr. Minister, from the note of Mr. Webster to Lord Ashburton, of the 1st of August, 1843, cited by your excellency. The authority of the illustrious American minister is too respectable with me that I should not give to his views and opinions all the attention and consideration which they merit; but permit me to observe, in the first place, that the effort itself of Mr. Webster in restraining the jurisdiction of the local sovereignty over foreign vessels in its waters, and the principles and deductions which he employs to reduce it to certain limits, manifest that he favors a novelty in the practice generally established. I will observe, in the second place, that, although there may have been, concerning this matter, a full coincidence of ideas between the two plenipotentiaries; although Lord Ashburton might have accepted the exposition of Mr. Webster concerning this matter, in all its parts, this concert of opinion does not appear to have produced any practical difference, even between the United

States and Great Britain, since it was not made a rule, (no se formulowas not formularized,) nor introduced, in any manner, in the treaty of 1842. I believe, in the third place, that even if that sanction were contained in the treaty of Washington, it would not have done more than establish particular rules of international law between the two contracting powers, leaving other states at full liberty to adopt those rules, or remain in the ancient practice, recognised by the most celebrated publicists and the decisions of the American courts themselves. But, in the fourth place, examining with attention the note of Mr. Webster, I do not find in it an absolute denial of jurisdiction to the local authorities over foreign vessels which visit their ports. "Foreign vessels maintain and carry with them, to a very considerable extent, the jurisdiction and authority of the laws of their country, excluding, consequently, to that extent, the jurisdiction of the local laws." Merchant-vessels anchored in a foreign port are not, then, subject to the authority of their native laws exclusively; and so Mr. Webster himself recognises it, in a paragraph which unfortunately appears to have escaped the attention of your excellency, since it is found between the paragraph which commences: "If a murder be committed," and the paragraph, Your lordship will please to bear in mind." It is true that the jurisdiction of a nation over a vessel which belongs to it, while it is in the port of another, is not necessarily exclusive in all its parts. We do not so consider or assert it; for whatever illegal act which is committed by the vessel while it is in the port, and for whatever contracts which the captain or owners may enter into while it is there, they and the vessel are undoubtedly responsible to the laws of the country. Nor, if the captain or crew, whilst they are on board in that port, disturb the peace of society by the perpetration of some crime, can they claim any exemption in their favor.

"It is to be presumed," says Mr. Webster, further forward, in one of the paragraphs transcribed by your excellency, "that it is permitted to merchant-vessels, which enter into open ports of other nations, to bring with them, and to retain for their protection and government, the jurisdiction and laws of their own country. All this, I repeat, it is to be presumed, is conceded to them: because the ports are open, because commerce is invited, and because this permission or concession is in accordance with the general custom. It is not to be denied that all this may be refused; and here occurs a distinction beween what a state may do if it wishes, and what it is presumed to do, or not to do, in default of a positive declaration of its will." My government accepts of this distinction; and the prescriptions of our law 6, title 11, book 6, Nov. Rec., above cited, are referred to.

Finally, having read the answers of Lord Ashburton of the 6th of August, 1842, to the before-mentioned note of Mr. Webster, I am inclined to believe that your excellency may have seen some incorrect or incomplete copy, or some inexact compendium of the original ; for I do not find in it the acquiescence which your excellency says Lord Ashburton gave to the theory put forth ("desenvuelta") by the American plenipotentiary. I consider as authentic the copy of said reply which is found in the History of International Law of Wheaton,