ross mcintyre argued decided may petitioner appellant imprisoned penitentiary albany state new york convicted may american consular tribunal japan crime murder committed board american ship harbor yokohama empire sentenced death august following sentence commuted president imprisonment life penitentiary albany place taken ever since confined nearly years afterwards march applied circuit northern district new york writ habeas corpus discharge alleging conviction sentence imprisonment unlawful stating causes thereof attendant circumstances writ issued directed superintendent penitentiary made return held petitioner warrant president copy annexed follows hayes president america presents shall come greeting whereas john ross american seaman board american ship bullion day may convicted crime murder committed board said ship bullion harbor yokohama japan thomas van buren esquire consul general kanagawa japan holding place said counsul general conviction aforesaid pursuance authority statutes end made provided sentenced hanged time place minister japan may direct according law whereas bingham minister aforesaid may following approved proceedings verdict sentence whereas said minister postponed execution sentence believing ends justice demand submitted record case department state president consideration commutation sentence pardon deemed advisable whereas president upon careful consideration facts circumstances case presented record proceedings report secretary state arrived conclusion ends justice fulfilled infliction less severe punishment death therefore known rutherford hayes president america consideration premises divers good sufficient reasons also thereunto moving hereby pardon said john ross condition said john ross imprisoned hard labor term natural life albany penitentiary state new york order carried effect undr direction secretary state testimony whereof hereunto signed name caused seal affixed done city washington sixth day august independence one hundred fifth seal hayes president wm evarts secretary state warrant annexed copy petitioner acceptance conditional pardon president certified correct consul general japan follows john ross person named warrant conditional pardon granted president america dated day august foregoing correct copy hereby acknowledge said original warrant conditional pardon hereby voluntarily without qualification accept said conditional pardon condition thereof therein stated rutherford hayes president america hereby pardon said john ross condition said john ross imprisoned hard labor term natural life albany penitentiary state new york john ross kanagawa yokohama japan february witness thos van buren consul general case heard circuit counsel appearing petitioner assistant attorney government hearing copy record proceedings consular tribunal communications consul general state department respecting file department given evidence objection made admissibility facts case thus disclosed far deemed material decision questions presented substantially follows may appellant john ross one crew american ship bullion waters japan lying anchor harbor yokohama day board ship assaulted robert kelly second mate knife inflicting neck mortal wound minutes afterwards died deck ship ross arrested direction master vessel placed irons day taken ashore confined jail yokohama following day may master filed american consul general place thomas van buren complaint ross charging murder mate contained sufficient averments offense verified oath master consul general appended certificate reasonable grounds believing contents true complaint described accused one citizen month amended complaint filed master ship consul general accused described american seaman duly lawfully enrolled shipped service seaman board american ship bullion complaint also amended particulars follows consular general kanagawa japan amended complaint john reed master american ship bullion oath complains john martin ross american seaman duly lawfully enrolled shipped service seaman board american ship bullion early morning day may board said ship lying harbor yokohama japan within jurisdiction force arms maliciously feloniously deliberately willfully malice aforethought make assault upon one robert kelly mate said ship feloniously maliciously deliberatly malice aforethought strike cut said robert kelly knife said robert kelly died board said ship short time thereafter wherefore affiant charges said john martin ross willfully maliciously killed murdered said robert kelly affiant says said john martin ross still seaman said ship reed sworn subscribed day may thos van buren consul general amended complaint annexed certificate consul general reasonable grounds believing contents true similar one original complaint previously filed accused appeared counsel consul general complaint read presented affidavit stating subject great britain native prince edward island dependency british empire never renounced rights liabilities british subject expatriated native allegiance naturalized country upon affidavit contended without jurisdiction reason subject great britain none ever reach latter circumstances instruct complaint held accused seaman american vessel subject jurisdiction overruled objection counsel accused moved charge dismissed ground held offense except upon presentment indictment grand jury motiion also overruled four associates drawn required statute consular regulations sit consul general trial accused sworn answer questions eligibility accused stated questions ask subject sworn try cause accordance regulations motion jury trial also made denied amended complaint substituted place original objection interposed accused pleaded guilty asked names witnesses prosecution furnished witnesses sworn examined established beyond possible doubt offense murder charged accused committed circumstances great atrocity found guilty murder sentenced suffer death manner time place minister direct conviction sentence concurred four associates approved bingham minister japan minister transmitted record case department state consideration president commutation sentence pardon prisoner deemed advisable president subsequently directed issue prisoner pardon condition imprisoned hard labor term natural life penitentiary albany accepted condition sentence accordingly commuted removed albany penitentiary circuit hearing argument counsel full consideration subject made order january denying motion prisoner discharge remanding penitentiary custody superintendent fed order case brought appeal geo kirchwey appellant asst atty parker appellee field circuit refuse discharge petitioner upon independent conclusion validity legislation congress establishing consular tribunal japan trial americans offenses committed within territory contr without indictment grand jury without trial petit jury placed decision upon long uniform acquiescence executive administrative legislative departments government validity legislation circuit consider whether status petitioner citizen american within meaning treaty japan questioned seaman american ship protection american flag simply stated view taken subject minister japan state department president said thirty years since statutes conferring judicial powers ministers consuls referred enacted jurisdiction freely exercised citizens tried serious offenses officers without preliminary indictment jury convicted punished trials authorized regulations orders decrees ministers must presumed regulations orders decrees ministers prescribing mode trial transmitted secretary state laid congress revision required law unless petitioner properly subject jurisdiction citizen trial sentence respects model well substantial regular valid laws congress according construction placed upon statutes acquiescence executive administrative legislative departments government long period time circumstances circuit opinion adjudge sentence imposed upon petitioner utterly unwarranted void case one rights adequately protected decision circuit setting liberty although might reversed practically irrevocable circuit might found additional ground calling question legislation congress uniform practice civilized governments centuries provide consular tribunals christian countries invest consuls judicial authority thing trial subjects citizens offenses committed countries well settlement civil disputes uniform recognition time formation government fact establishment tribunals among important subjects treaty stipulations recognition importance continued ever since though powers tribunals carefully defined formerly dainese hale practice european governments sent officers reside foreign countries authorized exercise limited jurisdiction vessels seamen country watch interests countrymen assist adjusting disputes protecting commerce goes back early period even preceding termed ddle ages ages commercial magistrates generally designated possessed extent representative character sometimes discharging judicial diplomatic functions christian countries treaty stipulations usually clothed authority hear complaints countrymen sit judgment upon charged public offenses rise islamism spread followers western asia countries bordering mediterranean exercise judicial authority became matter great concern intense hostility people moslem fath sects particularly christians affected intercourse proceedings tribunals even rules evidence adopted placed different faith unequal grounds controversy cause reason barbarous cruel punishments inflicted countries frequent use torture enforce confession parties accused matter deep interest christian governments withdraw trial subjects charged commission public offense arbitrary despotic action local officials treaties conferring jurisdiction upon consuls essential peaceful residence christians within countries successful prosecution commerce people power vested government extends proper subjects negotiation foreign governments equally former present governments europe make treaties providing exercise judicial authority countries officers appointed reside therein understand question made counsel power respect objection legislation treaties carried contending far crimes felonious character concerned protection guaranty undue accusation unfair trial secured constitution citizens home enjoyed abroad none laws passed congress give effect treaties kind attempt require indictment grand jury one called upon answer public offense grade committed countries secure jury trial offense yet laws subject passed without objection constitutionality indeed objection ground never raised quarter far informed recent period however earnestly pressed counsel petitioner think tenable constitution government ordained established america countries outside limits guaranties affords accusation capital infamous crimes except indictment presentment grand jury impartial trial jury thus accused apply citizens others within brought trial alleged offenses committed elsewhere residents temporary sojourners abroad cook sup constitution operation another country therefore representatives officers government permitted exercise authority kind another country must conditions two countries may agree laws neither one obligatory upon deck private american vessel true considered many purposes constructively territory yet persons board vessels whether officers sailors passengers invoke protection provisions referred brought within actual territorial boundaries besides enforcement abroad numerous places highly important consuls invested judicial authority impracticable impossibility obtaining competent grand petit jury requirement body accuse try offender majority cases cause abandonment prosecution framers constitution fully aware necessity judicial authority exercised consuls countries commercial intercourse ther eople never supposed guaranties administration law upon criminals home transferred consular establishments applied american committed felony accused tried must known requirement defeat main purpose investing consul judicial authority therefore one aspect american accused crime committed countries deprived guaranties constitution unjust accusation partial trial yet another aspect gainer withdrawn procedure tribunals often arbitrary oppressive times accompanied extreme cruelty torture letter cushing calhoun september accompanying president message communicating abstract treaty china senate doc cong sess letter judicial exterritorial rights secretary frelinghuysen chairman senate committee foreign relations april senate doc cong sess phillim int law halleck int law turn treaties japan treaty june executed consul general governors simoda one first conceded american consul japan authority try americans committing offenses country article treaty follows americans committing offenses japan shall tried american consul general consul shall punished according american laws japanese committing offenses americans shall tried japanese authorities punished according japanese laws treaty japan july particulars changes phraseology concession judicial authority american consul japan shall see subsequently without revocation concession sixth article follows americans committing offenses japanese shall tried american consular courts guilty shall punished according american law japanese committing offenses americans shall tried japanese authorities punished according japanese law consular courts shall open japanese creditors enable recover claims american citizens japanese courts shall like manner open american citizens recovery claims japanese seen language fourth article treaty committing offenses japan shall tried etc language sixth article treaty committing offenses japanese shall tried etc offenses committed japan offenses committed japanese necessarily identical meaning latter standing require restricted construction twelfth article treaty obviates follows provisions treaty made commodore perry signed kanagawa march conflict provisions treaty hereby revoked provisions convention executed consul general governors simoda june incorporated treaty convention also revoked thus perceived revocation treaty made upon assumption declaration provisions incorporated treaty revocation must therefore held limited provisions thus incorporated treaty still remaining force unincorporated provisions practical construction given alleged revocaton authorities countries construction view erroneous statement incorporation new treaty provisions former one reasonable government always treated article treaty continuing force published consular regulations issued appendix official interpretation found article regulations declares exclusive jurisdiction crimes offenses committed citizens japan bingham minister country several years treaty always assumed incorporation treaty provisions treaty saved prisoner reached san francisco way japan albany applied circuit writ habeas corpus cited sixth article treaty insisting provided trial americans american consular courts japan offenses committed japanese therefore held answer murder second officer american ship bullion japanese waters japanese subject communication made date june minister secretary state reference made position following language used opinion strongly testify utter weakness claim made ross government attempt limit jurisdiction consuls japan americans guilty crimes committed within empire crimes commit upon persons japanese subjects according logic americans may japan murder citizens subjects lands save subjects japan impunity admitted government try american offense whatever must also conceded tribunals government try americans crimes committed within empire giving reasons department ing jurisdiction case approving conviction ross consul general four associates sat concurred cited article convention japan americans committing offenses japan shall tried american consul general consul shall punished according american law provision convention provisions thereof saved incorporated treaty japan article quoted observe townsend harris consul general negotiated treaties japan treaty ratified april thereafter wit june congress passed act carry effect treaty japan provided minister consuls japan empowered arraign try manner said statute provided citizens charged offenses law committed japan section rev also section provided jurisdiction civil criminal matters japan shsll cases exercised enforced conformity laws far necessary execute treaty extended citizens therein others extent terms treaty justify require construction stated asserted senate ratified treaty president approved treaty act congress president nd department always construed treaty carrying incorporating therein fourth article provisions convention legislation congress carry effect treaty japan found revised statutes sections apply equally treaties china siam egypt madagascar sections confining treaty japan find legislation secures regular fair trial americans committing offenses within empire enacts minister consuls appointed reside shall addition powers duties imposed upon respectively invested judicial authority therein described shall appertain respective offices part duties belonging thereto far allowed treaty empowers arraign try manner therein provided citizens charged offenses law committed country sentence offenders therein provided issue suitable necessary process carry authority execution declares jurisdiction criminal civil matters shall cases exercised enforced conformity laws far necessary execute treaty suitable carry effect extended citizens japan others extent terms treaty justify require also provides laws adapted object deficient provisions necessary furnish suitable remedies common law law equity admiralty shall extended like manner citizens others neither common law law equity admiralty statutes furnish appropriate sufficient remedies minister shall decrees regulations shall force law supply defects deficiencies consuls authorized upon facts within knowledge good reason believe true upon complaint made information filed writing authenticated way shall prescribed minister issue warrant arrest citizen charged committing country offense law arraign try offender sentence punishment manner therein prescribed legislation also declares insurrection rebellion government intent subvert murder shall punishable death person shall convicted thereof unless consul associates trial concur opinion minister approves conviction also provides whenever case consul opinion reason legal questions may arise therein assistance useful severer punishment previously specified certain cases required shall summon sit trial one citizens exceeding four capital cases less four shall taken lot alist previously submitted approved minister shall persons good repute competent duty jurisdiction consular tribunal thus seen exercised enforced accordance laws course pursuance accused opportunity examining complaint presented copy stating offense committed entitled confronted witnesses examine benefit counsel ad indeed benefit provisions necessary secure fair trial consul associates complaint legislation made counsel directing trial consul associates summoned sit require previous presentment indictment grand jury give accused petit jury want clauses affecting validity legislation already considered pretended prisoner respects fair trial consular objected proceedings consular offense petitioner charged committed board vessel japanese waters triable consular petitioner subject great britain within jurisdiction objections proceed consider argument presented support first positions briefly congress provided punishment murder committed upon high seas arm bay sea within admiralty maritime jurisdiction jurisdiction particular state provided trial offenses committed upon high seas jurisdiction particular state shall district offender found first brought term seas includes waters without boundaries mark waters port yokohama constitute within meaning statute high seas therefore contended although ship bullion time lying waters offense appellant tried convicted committed high seas within jurisdiction domestic tribunals punishable elsewhere support position assumed jurisdiction consular limited offenses committed land within territory japan exclusion offenses committed waters within territory seems us obvious answer argument jurisdiction try offenses committed high seas district offender may found may first brought exclusive jurisdiction consular tribunal try similar offense committed port foreign country tribunal established offender taken law congress compelling master vessel carry transport home port turned consular jurisdiction similar offenses committed foreign country op atty provisions conferring jurisdiction capital cases upon consuls japan offense committed country embodied revised statutes provisions jurisdiction domestic tribunals offenses committed high seas statures together went operation time effect must given proper cases applicable adopt limitation stated counsel jurisdiction consular tribunal extends offenses committed land neither treaty revised statutes carry effect contain limitation latter speak offenses committed country japan within territorial jurisdiction country includes ports navigable waters well lands position petitioner subject great britain within jurisdiction consular plausible admits think sufici ent answer national character petitioner purposes consular jurisdiction determinable enlistment one crew american ship bullion enlistment beame american seaman one american crew board american vessel entitled protection benefits laws passed congress behalf american seamen subject obligations liabilities although relations british government changed expiration enlistment board american ship government may enforce obligation allegiance hand may entitled invoke protection british subject relation changed service seaman board american ship enlistment insist upon treatment american seaman invoke protection power called exercise protection seamen native born owes time country ship serving belongs temporary allegiance must held responsibilities question treated political one diplomatic adjustment legal one determined judicial tribunals subject correspondence government great britain position taken government expressed communication secretary state british government date june assertion principle secretary insisted entire conformity principles english law applied mercantile service almost identical organization regulation principle foreigner enters mercantile marine nation becomes one crew vessel undoubtedly national character assumes temporary allegiance flag serves return protection afforded becomes subject laws nation exercise unquestioned authority governs vessels seamen therefore continued government treaty stipulation japan acquired privilege administering laws upon vessels relation seamen japanese territory every american vessel every seaman crew subject jurisdiction treaty transferred government ross passenger board bullion residing yokohama come board temporarily committed murder question jurisdiction different part crew seaman american laws enjoying protection government extent protected arrest british authorities subjection laws avoided moment suits convenience allege foreign citizenship law violated law made government vessels person murdered one superior officers bound respect obey difficult see authority british government assume duty claim right vindicate law protect officer mercantile service certainly national service although quite sense term applied national navy organized service erned special complex system law administered national officers collectors consuls appointed national authority system law attaches vessel crew eav national port accompanies round globe regulating lives protecting persons punishing offenses sailor like soldier enlistment knows allegiance country whose flag serves law may suspended ports foreign nation foreign nation grants country serves power administer laws foreign territory law enlisted becomes secretary concluded communication following expression determination government impressed government importance propriety views receive respectful consideration expression different conviction britannic majesty government may entertain yet feel bound instruct consular diplomatic officers east china japan judicial authority consuls considered extending persons duly shipped enrolled upon articles merchant vessel whatever nationality person offenses bejusticiable consular courts persons offending naturalized citizens employed merchant service thereof equally justiciable consular courts case seamen foreign nationality determination thus expressed afterwards carried incorporating doctrine permanent regulations department guide consuls country second regulation views thus forcibly expressed present judgment true status prisoner enlisted seaman american vessel give effect purpose treaty legislation congress treaty uses term speaking may brought within jurisdiction consular offenses committed japan statute designates yet extends laws far may necessary execute treaty suitable carry effect citizens japan also others extent terms treaty justify require reading treaty statute together view purpose designed accomplished satisfied intended bring within laws citizens also though strictly citizens service equally entitled care protection government canon interpretation construe law treaty give effect object designed purpose provisions must examined light attendant surrounding circumstances terms expressions literal meaning given others larger extended one reports adjudged cases approved legal treatises full illustrations application rule inquiry cases intended law legislature treaty contracting parties de geofroy riggs sup last term held district columbia political community one union within meaning term used consular convention france construction necessary give consistency provisions convention defeat consideration given france concession certain rights citizens present case carry intention treaty statute question construed ppl parties public law law country entitled treated time employment service citizens many adjudications effect character ascribed parties held liable consequences entitled benefits grounds birth naturalization statute henry viii enacted anybody rob take goods king subjects within realm found guilty party robbed restitution goods statute sir matthew hale said speaks king subjects extends aliens robbed though king naturalborn subjects king subjects england local allegiance hale holmes wheat point case us certain parties indicted circuit district massachusetts convicted murder high seas appeared vessel apparently spanish captured privateers buenos ayres prize crew put board prisoners part one citizen others foreigners crime committed drowning person whose death charged prisoners driving throwing overboard motion new trial certain questions arose judges divided opinion one whether made difference point jurisdiction whether prisoners citizens offense committed board vessel high seas said question contained two national character offender person offense committed second place committed respect first opinion made difference whether offender citizen adding offense committed board foreign vessel citizen board vessel foreigner offender considered pro hac vice respect subject belonging nation whose flag sails case queen anderson cr cas still point one james anderson american citizen indicted central criminal england murder board vessel belonging port yarmouth nova scotia registered london sailing british flag time offense committed vessel river garonne within boundaries french empire way bordeaux city course river miles open sea vessel proceeded river time offense yards nearest shore river place half mile wide tide flows place beyond prisoner convicted case reserved opinion contended behalf prisoner jurisdiction case american citizen foreign country time offense committed also section merchant shipping act said crown relied upon trial applied british seamen justice blackburn regard last statement observed expression seamen may mean one whatever nationality serving board british ship also decided ship bears nation flag treated part territory nation ship kind floating island counsel answered floted territory another nation cease jurisdiction flag excluded man might tried france chief justice bovill replied might country legislate regulate conduct board vessels concurrent jurisdiction judges concurred sustaining conviction giving opinion chief justice said doubt place offense committed within territory france prisoner therefore subject laws france nation might enforce thought fit time also within british merchant vessel board vessel part crew must taken protection british law also amendable provisions said prisoner american citizen embarked consent board british ship time portion crew many observations found various writers show instances though subject american law citizen america law france found within french territory yet must also considered within british jurisdiction forming part crew british vessel upon principle jurisdiction country preserved vessels though may ports rivers belonging another nation page justice blackburn said nation allows vessel sail flag crew protection flag common sense justice require punishable law flag page views expressed department state quoted harmony doctrine uniformly asserted government claim england right take countrymen deck american merchant vessel press naval service part history assertion claim enforcement many instances caused degree irritation among people conduct country ever produced enforcement deemed great indignity upon country violation right sovereignty vessels considered parts territory led war although war closed without obtaining relinquishment claim assertion attempted last communiction webster secretary state lord ashburton special british minister country august claim repudiated announcoment made longer allowed government must abandoned conclusion webster communication bears upon question us referring claim great britain demonstrating injustice position violation national rights said early disputes two governments long contested topic distingished person whose hands first intrusted seals department declared simplest rule vessel american shall evidence seamen board fifty years experience utter failure many negotiations careful reconsideration whole subject moment passions laid present interest emergency exists bias judgment convinced government simplest best rule adopted observed consistently rights honor security citizens rule announces therefore hereafter principle maintained government every regularly documented american merchant vessel rew navigate find protection flag webster works rule vessel american evidence seamen board established doctrine country support american people diversity opinion division action satisfied trust rule construction present case adopted department state correspondence english government action consular tribunal taking jurisdiction prisoner ross though english subject offense committed authorized enlisted seaman american vessel floated american flag within meaning statute treaty american protection subject laws equally seaman native born american seaman demanded trial consular matter right must therefore held subject matter obligation overlooked objection repeatedly made earnestly pressed counsel consular tribunal limited jurisdiction undoubtedly character limited treaty statutes passed carry effect jurisdiction extended beyond legitimate meaning construction therefore restricted practically defeat purposes accomplished treaty rather give full operation order may vain nugatory act true occasion consular tribunals japan may hereafter less present every year country progresses civilization assimilation system judical procedure christian countries well improvement penal statutes system consular tribunals general similarity main provisions highest importance establishment christian countries people may desire go pursuit commerce often essential protection persons property considered objection discharge prisoner ground accepted conditional pardon president conviction sentence void want jurisdiction consular tribunal may doubtful whether estopped acceptance pardon assailing validity inquiry need go consular jurisdiction try sentence question binding force acceptance order affirmed