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minished or postponed, has bred in the private vessels under the British flag outminds of other thousands, especially among side the limits of territorial waters by the the ignorant and illiterate of our foreign- authorities of the United States, its terriborn population, a contempt of all law and tories or possessions in order that enquiries all authority, so that it is not too much to may be addressed to those on board and an say that the traffic in illicit liquor is the examination be made of the ship's papers nursery of crime of every description. for the purpose of ascertaining whether the
Bearing upon the question of this traffic, vessel or those on board are endeavoring to and having reference to a condition that import or have imported alcoholic beverarose in San Francisco, it is said that "there ages into the United States, its territories is in this position an assumption of a fact or possessions in violation of the laws there which does not exist, that when the liquors in force. When such enquiries and examare taken in excess the injuries are confined ination show a reasonable ground for suspi. to the party offending. The injury, it is cion, a search of the vessel may be instituted. true, first falls upon him in his health, which “(2) If there is reasonable cause for bethe habit undermines; in his morals, which lief that the vessel has committed or is comit weakens; and in the self-abasement which mitting or attempting to commit an offense it creates. But, as it leads to neglect of against the laws of the United States, its business and waste of property and general territories or possessions prohibiting the imdemoralization, it affects those who are im- portation of alcoholic beverages, the vessel mediately connected with and dependent up- may be seized and taken into a port of the on him. By the general concurrence of United States, its territories or possessions opinion of every civilized and Christian for adjudication in accordance with such community, there are few sources of crime laws. and misery to society equal to the dram- “(3) The rights conferred by this article shop, where intoxicating liquors, in small shall not be exercised at a greater distance quantities, to be drunk at the time, are sold from the coast of the United States its terindiscriminately to all parties applying. ritories or possessions than can be traversed The statistics of every state show a greater in one hour by the vessel suspected of enamount of crime and misery attributable to deavoring to commit the offense. In cases, the use of ardent spirits obtained at these however, in which the liquor is intended to retail liquor saloons than to any other be conveyed to the United States its terrisource. The sale of such liquors in this way tories or possessions by a vessel other than has therefore been, at all times, by the courts the one boarded and searched, it shall be the of every state, considered as the proper speed of such other vessel and not the speed subject of legislative regulation. Not only of the vessel boarded, which shall determine may a license be exacted from the keeper the distance from the coast at which the of the saloon before a glass of his liquors right under this article can be exercised.” can be thus disposed of, but restrictions may But was such a convention necessary be imposed as to the class of persons to In the case of Church v. Hubbart, 2 whom they may be sold, and the hours of the Cranch, 187, 2 L. Ed. 249, the question inday and the days of the week on which the volved was an insurance policy on a vessel, saloons may be opened. Their sale in that which excepted from its terms seizure by form may be absolutely prohibited." Crow- the Portuguese government for illicit trade. ley v. Christensen, 137 U. S. 86, 11 S. Ct. At that time (1804) Portugal prohibited all 13, 15, 34 L. Ed. 620, at page 90, 11 S. Ct. trade of any kind or character whatsoever
Any American vessel, or American citi- with her colonies and dependencies, one of zen engaging in this traffic, is of course, lia- which was Brazil. The vessel insured was ble to seizure and arrest. So, great organi- fitted out for the express purpose of trading zations have arisen who conduct this illicit illicitly with Rio de Janiero. The vessel was business in foreign ships, manned by for- seized five leagues (fifteen miles) from the eign officers and crews. They approach our shore, and was condemned by the Portushores as nearly as they dare, lie to, and guese authorities at Rio. transfer their cargoes to small swift boats. In the suit on the policy it was claimed In recognition of this situation, the United that this was not a condemnation in illicit States and Great Britain, on May 22, 1924, trade for the reason that the seizure of the entered into a treaty (43 Stat. —), the vessel was illegal and contrary to the law pertinent provisions of which are as fol- of nations and constituted a mere trespass lows:
and act of unlawful violation by a foreign “(1) His Britannic majesty agrees that he government. Chief Justice Marshall, howwill raise no objection to the boarding of ever, disposed of that contention as it de
8 F.(20) 643 served, holding that the power of a govern- trade must necessarily be restricted to very ment to seize a vessel hovering off the coast narrow limits; but on the coast of South for the express purpose of violating the America, seldom frequented by vessels, but laws of that country was not limited to those for the purpose of illicit trade, the vigilance waters over which that nation could prop- of the government may be extended someerly be said to exercise sovereignty. He what farther, and the foreign nations subpoints out, likewise, that our own statute in mit to such regulations as are reasonable in existence at that time, and still in existence themselves, and are really necessary to se(section 3067, R. S.; Act March 2, 1799, cure that monopoly of colonial commerce, c. 22, § 54, 1 Stat. at Large, 668 [Comp. which is claimed by all nations holding disSt. § 5770]), makes it lawful to search and tant possessions." seize any vessel violating our revenue laws The Supreme Court of Canada has held within four leagues (twelve miles) of the that, even irrespective of any treaty, the shore. The Chief Justice says: “That the Dominion had a right, under the law of law of nations prohibits the exercise of any nations, to pursue and take a vessel beyond act of authority over a vessel in the situa- the three-mile limit, when that vessel was tion of the Aurora, and that this seizure is, charged with the infraction of her laws. on that account, a mere marine trespass, not In the matter of the ship North (37 Canwithin the exception, cannot be admitted. ada Supreme Court, 385), the vessel was To reason from the extent of protection à charged with fishing in Canadian waters, nation will afford to foreigners, to the ex- contrary to the statutes of the Dominion. tent of the means it may use for its own She was pursued and captured beyond the security, does not seem to be perfectly cor- three-mile limit. The North was an Amerrect. It is opposed by principles which are ican vessel. universally acknowledged. The authority. The Supreme Court of Canada holds that of a nation, within its own territory, is ab- by the principles of international law she solute and exclusive. The seizure of a ves- could be brought into a Canadian court and sel, within the range of its cannon, by a for- condemned. The court was of the opinion eign force, is an invasion of that territory, that this could be done even under the welland is a hostile act which it is its duty to recognized principles of international law, repel. But its power to secure itself from but further held that, if it could be coninjury may certainly be exercised beyond strued to be a breach of international law, the limits of its territory. Upon this prin- that was not a matter affecting the jurisdicciple the right of a belligerent to search & tion of the court, but was a matter for the neutral vessel on the high seas, for contra protest of the government of the ship. - band of war, is universally admitted, be. The case of Hudson v. Guestier, 6 Cranch, cause the belligerent has a right to prevent 281, 3 L. Ed. 224, was an action of trover the injury done to himself by the assistance for coffee and logwood, the cargo of the intended for his enemy; so too, a nation has brig Sea Flower, which had been captured a right to prohibit any commerce with its by the French for trading to the revolted colonies. Any attempt to violate the laws ports of the Island of Hispaniola, contrary made to protect this right is an injury to to the ordinances of France, and carried initself, which it may prevent, and it has & to the Spanish port of Baracoa, but conright to use the means necessary for its pre- demned by a French tribunal at Guadavention. These means do not appear to be loupe, and sold for the benefit of the caplimited within any certain marked bound- tors, and purchased by the defendant. The aries, which remain the same, at all times trial court directed the jury "that if they and in all situations. If they are such as find from the evidence produced, that the unnecessarily to vex and harass foreign law. brig Sea Flower had traded with the insurful commerce, foreign nations will resist gents at Port au Prince, in the island of St. their exercise. If they are such as are rea- Domingo, and had there purchased a cargo sonable and necessary to secure their laws of coffee and logwood, and, having cleared from violation, they will be submitted to. at the said port, and coming from the same,
"In different seas, and on different coasts, was captured by a French privateer, duly a wider or more contracted range, in which commissioned as such, within six leagues of to exercise the vigilance of the government, the island of St. Heneague, a dependency will be assented to. Thus, in the Channel, of St. Domingo, for a breach of said municwhere a very great part of the commerce ipal regulations, that in such case the capto and from all the north of Europe passes ture of the Sea Flower was legal, although through a very narrow sea, the seizure of such capture was made at the distance of vessels on suspicion of attempting an illicit six leagues from the said island of St. Do
mingo, or St. Heneague, its dependency, and ject are a clear expression of the opinion beyond the territorial limits or jurisdiction of our government that nothing in the law of said island, and that the said capture, of nations prohibited them to confer such possession, subsequent condemnation, and power on its cruisers.” See Rev. Stat. U. sale of the said Sea Flower, with her cargo, S. § 2760, 6 Stat. Annot. 781. * divested the said cargo out of the plaintiffs, In England there has been in existence and the property therein became vested in since 1736 '(9 Geo. II, c. 35) a statute called the purchaser.”
“the British Hovering Act." That statute In affirming a judgment for the defend- assigns a jurisdiction of four leagues from ant, the court said: “Considering it, then, the coast by prohibiting foreign goods from as settled that the French tribunal had ju- transshiping within that distance without risdiction of property seized under a munic- payment of duties. It may be noted that it ipal regulation, within the territorial juris- is the same as the act of 1799 in the United diction of the government of St. Domingo, it States, and that both of these statutes have only remains for me to say whether it will been declared repeatedly to be consistent make any difference if, as now appears to with the law and usage of nations. An exhave been the case, the vessel were taken on ample is the Coquitlam (D. C.) 57 F. 706. the high seas, or more than two leagues from This latter case was in the Supreme Court the coast. If the res can be proceeded (163 U. S. 346, 16 S. Ct. 1117, 41 L. Ed. against when not in the possession or un- 184), although the matters determined were der the control of the court, I am not able rather questions of procedure than jurisdicto perceive how it can be material whether tion. It is notable, however, that the point the capture were made within or beyond passed upon by the lower court with refthe jurisdictional limits of France, or in the erence to the jurisdiction was not urged, and exercise of a belligerent or municipal right. it is further noted that the Coquitlam when By a seizure on the high seas, she interfer- captured was 30 miles from land. ed with the jurisdiction of no other nation, As is pointed out by Saunders (Maritime the authority of each being there concur- Law, p. 79) a ship can only be called a part rent.” This case overruled Rose v. Hime of the territory to which she belongs in ly, 4 Cranch, 241, 2 L. Ed. 608, wherein it that she carries with her the laws of her own was held that a vessel could not be seized nation "for the government of those on on the high seas, outside territorial jurisdic- board in their mutual relations to each othtion, for a breach of a municipal regulation. er.” It is equally true, however, that she
See, also, Cucullu v. Louisiana Ins. Co., is subject to the laws of the country of her 5 Mart. N. S. (La.) 464, wherein the court nationality only if she is in lawful navigasaid: “Strictly speaking, the authority of tion. Manning's Law of Nations, 117. But a nation cannot extend beyond her own ter- this ship was not in lawful navigation. The ritory. By the common consent of nations very purpose of her voyage was to transthis authority has been enlarged, where the gress the laws of a friendly nation, and to sea is the boundary, to the distance of a assist the citizens of that nation to break cannon shot, from the shore. Within these those laws. As pointed out by Daniel Weblimits foreigners are protected, and prizes ster. in his letter to Lord Ashburton (anotcannot rightfully be made of their vessels
ed by Mr. Justice Field in U. S. v. Rodgers, by enemies. But the right of the nation to
150 U. S. 264, 14 S. Ct. 109, 37 L. Ed. 1071), protect itself from injury, by preventing its
the law and jurisdiction of a nation accomlaws from being evaded, is not restrained to this boundary. It may watch its coast,
pany its ships, not alone upon the high seas, and seize ships that are approaching it with
but into the ports and harbors of foreign an intention to violate its laws. It is not
countries. But he also concedes that by the obliged to wait until the offense is consum
law of nations the officers and crew are anmated before it can act. It may guard
swerable for offenses against the laws of the against injury as well as punish it. If. in- country where the ship may be. deed, in the exercise of this right an unrea. “Who is the sovereign, de jure or de facsonable range was taken, other nations to, of a territory is not a judicial but a pomight object. But so long as it is confined litical question, the determination of which to the seizure of vessels entering the port by the legislative and executive departments for which they are destined, it will not, it is of any government conclusively binds the presumed, form a just ground of complaint. judges, as well as all other officers, citizens Our own legislation authorizes revenue cut and subjects of that government.” Jones v. ters to visit vessels four leagues from the U. S., 137 U. S. 212, 11 S. Ct. 80, 34 L. Ed. coast; and the acts of Congress on this sub- 691.
3 F.(20) 643 So, Great Britain has waived her sover- Stat. 730 (Comp. St. § 1023). “The trial eignty over the rum-runners who infest our of all offenses committed upon the high seas, shores, if they be found within an hour's or elsewhere out of the jurisdiction of any run. She has recognized that it is beneath particular state or district, shall be in the the dignity of a great nation to extend pro- district where the offender is found, or into tection to her citizens when they see fit to which he is first brought." engage in the enterprise of assisting the In the brief, however, it is said that the citizens of another in the wholesale viola- crime is committed beyond our territorial tion of its laws. It is intolerable that ships limits, and therefore beyond the jurisdiction of foreign nations should violate, and ren- of this Court. der nugatory-nay, boldly defy-our laws, It is, of course, elementary that where a and assist persons clearly within our juris- crime is committed partly in one jurisdiction diction so to do. It is the merest sophistry and partly in another the venue may be laid to say that when a foreign ship has a cargo in either place. of liquor in her hold in the high seas she is A dramatic illustration of that may be doing no more than she has a right to do. found in Lord Macaulay's account of the The thing she really does is to aid and as- trial of the Seven Bishops; also reported in sist persons within our jurisdiction in the 12 State Trials, 183. In that case the sevbold and contemptuous defiance of our laws en bishops were charged with having puband then claim immunity because a part of lished a seditious libel against the king. the crime is committed by a foreign vessel When brought to trial it appeared when more than one marine league from our the matter first came before the jury that as shores.
a matter of fact the libel was written outOn that question there is a recent deci- side the county of Middlesex. As the trial sion of the United States Circuit Court of went on, however, Lord Sunderland was Appeals for the Fourth Circuit: Latham produced as a witness, and testified that, v. United States (C. C. A.) 2 F.(20) 208, while the libel was written outside the coundecided October 21, 1924. The language in ty of Middlesex, it was presented to the that case is significant, particularly this king in London, It was held that jurisdicpart:
tion was in either place. “One who ranges along the land or waterS o, if money obtained by false pretenses line of any country with the design of aid- is sent by letter at the request of the acing in the subversion of its laws challenges cused, the crime is committed both where the that country to enforce its laws and assumes letter is posted and where it is received. the risk of his own mistakes and the ac- Regina v. Jones, 1 Den. 551. tion of wind and tide and all the forces of A case in our own Supreme Court every nature. . . .
one will remember is People v. Botkin, 132 “Thus the defendants aided and abetted Cal. 232, 64 P. 286, 84 Am. St. Rep. 39. the persons to whom they sold in selling the That case was one in which the defendant whisky in the United States contrary to its had mailed in San Francisco certain poison laws.
candy, sent to persons in New Jersey, and “The defendants being under arrest in the from eating which they died. It was held United States, it makes no difference that that jurisdiction could be had either in the they were outside the jurisdiction when by place where the candy was sent or where aiding and abetting they become principals the persons died from eating it. So, where in crime committed in the United States." property is stolen in one county and remov
 But there is another complete answer ed to another by the thief, venue may be to the contentions of the defendants. These laid in either county. 2 Russell on Crime offenses can be fairly said to have been com- (6th Ed.) 285. So it is well settled that a mitted by them upon American ships upon person who procures the commission of an the high seas. The transportation of liquor offense commits the offense in the place is a crime. Can it be said that the delivery where the act is done, the commission of by the mother ship to the smaller vessel is which he has procured, although he himself not aiding and assisting that crime? If so, never was in that place. Rex v. Johnson, and there seems no escape from it, all who 7 East. 65. assist are principals.
These defendants, moreover, are charged But a crime committed within any state with conspiracy. Conspiracy may be tried must be tried within that state; yet a crime in the place where the conspirators agreed not committed within any state may be tried to the wrongful act, which is the object of at such place as Congress may by law have the conspiracy, or in any jurisdiction where directed. Const. art. 382; 6th Am. Rev. one of the overt acts is committed. Rex v.
Brisac, 4 East, 164. And is again settled 4. Evidence en 450(10)—Indorsement "for col. by this case of Latham v. United States (C. lection and
Tantion and credit "held ambiguous requir.
and I returns C. A.) 2 F.(20) 208.
ing extraneous proof. Of course, no one would desire that ships Indorsement of checks "for collection at sea should be generally subject to search and credit” is ambiguous, but in view of fur.
y returns 10 a by any foreign power. The facts of our
ther advice not to remit until actually paid, own history, which readily occur to any and a possible custom existing between banks one, would negative this. The celebrated concerned, ambiguity may be susceptible of passages of Thomas Carlyle in "Frederick satisfactory interpretation. the Great," with reference to Jenkins' ear, 5. Trusts 353–Rule as to tracing misapkept in cotton for eight years "with a kind plied funds stated. of ursine piety or other dumb feeling," and Where insolvent has misapplied funds infinally produced in Parliament to the awak- trusted to it, which have been impounded for ening of war, come as readily to mind. But
But distribution to insolvent's creditors, it is not
necessary that such funds be actually identified a general search on the high seas is a very to give owner priority over other creditors, but different thing from a reasonable search at it is necessary only to show that such funds a reasonable distance from shore to prevent were commingled and went to swell impounded and punish foreigners for a violation of assets. our laws and assistance to our own citizens 6. Banks and banking m80(8)-Payment of in violating them.
certificates of indebtedness and checks sent to
insolvent bank for collection by check on such I conclude therefore: (1) The seizure of
bank held not to entitle owner to priority. the vessel was not in contravention of the
Where certificates of indebtedness and law of nations, but in strict accord with the checks sent to insolvent bank for collection treaty with Great Britain. (2) Her officers were paid by checks on such bank, there was and crew were apprehended in the violation
mere shifting of bank's liability, bank's funds
not being increased or decreased thereby, and of the laws of the United States. (3) Be
owner of such certificates and checks was not ing so engaged, the court of the district into entitled to priority over other creditors. which they were brought has jurisdiction of
7. Banks and banking e 80(8)-Owners of the cause (4) The evidence, having been
checks sent to insolvent bank for collection lawfully secured, cannot be suppressed or resulting in balance against bank held not en. returned.
titled to priority. Let the motion be denied and the demur. Checks sent to insolvent bank for collecrers overruled.
tion, which after being cleared in usual way resulted in balance against insolvent bank in favor of drawee bank, did not increase funds of insolvent bank and did not entitle owners of
checks to priority over other creditors. NYSSA-ARCADIA DRAINAGE DIST. v. FIRST NAT. BANK OF VALE et al. 8. Banks and banking 80(8)-Owners of
checks sent to insolvent bank for collection (District Court, D. Oregon. January 12, resulting in increasing bank's assets held en1925.)
titled to priority. 1, Bills and notes 195-Counties en 167–
Where checks sent to insolvent bank for
collection, on being cleared, resulted in balance General indorsement carries title to paper.
in bank's favor, which was paid by draft, and General indorsement for transmission of
draft was credited to collecting bank by bank checks and county certificates of indebtedness
on which drawn, its funds were increased by carries title, and transmittee becomes owner.
amount of such balance, entitling owners of 2. Bills and notes 200-Counties om 167- checks to priority over other creditors.
Paper indorsed "for collection," "for ac· count," etc., remains property of indorser. At Law. Action by the Nyssa-Arcadia
Checks and certificates of indebtedness in- Drainage District against the First Nationdorsed "for collection," "for collection only,” al Bank of Vale and another. On motion “for account,” and for "collection and returns,"
ros," for judgment on pleadings. Motion denied. remain property of indorser.
Gallagher & Kester, of Ontario, Or., for 3. Banks and banking am 156—Indorsement for
"collection and returns" creates relation of plaintiff. principal and agent; indorsement "collection C. M. Crandall, of Vale, Or., for defendand credit” indicates relation of debtor and ants. creditor.
Draft transmitted for "collection and re- WOLVERTON, District Judge. The turns" creates relation of principal and agent, First National Bank of Vale (which. for and within itself is not declaration of trust respecting funds involved, but indorsement for convenience, will be called the Vale Bank), “collection and credit” indicates relation of becoming insolvent, closed its doors October debtor and creditor.
24, 1921, and in due course Ray T. Moe