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Statement of Facts.
"ART. 8. Our consuls have the right of discipline on Belgian merchant vessels in all the ports and harbors of their district.
"In matters of offences or crimes they are to make the examination conformably to the instructions of the disciplinary and penal code of the merchant service.
"They are to claim, according to the terms of the conventions and laws in force, the assistance of the local authorities for the arrest and taking on board of deserting seamen.
"ART. 9. Except in the case where the peace of the port shall have been compromised by the occurrence, the consul shall protest against every attempt that the local authority may make to take cognizance of crimes or offences committed on board of a Belgian vessel by one of the ship's company towards one, either of the same company, or of the company of another Belgian vessel.
"He shall take the proper steps to have the cognizance of the case turned over to him, in order that it be ultimately tried according to Belgian laws.
"ART. 10. When men belonging to the company of a Belgian vessel shall be guilty of offences or crimes out of the ship, or even on board the ship, but against persons not of the company, the consul shall, if the local authority arrests or prosecutes them, take the necessary steps to have the Belgians so arrested treated with humanity, defended and tried impartially."
The application in this case was made under the authority of these Articles.
ARTICLE XI of a Convention between the United States and Belgium "concerning the rights, privileges, and immunities of consular officers," concluded March 9, 1880, and proclaimed by the President of the United States, March 1, 1881, 21 Stat. 776, 781, is as follows:
"The respective consuls-general, consuls, vice-consuls, and
ART. 10. Lorsque les hommes appartenant à l'équipage d'un navire belge se rendent coupables de délits ou de crimes hors du navire, ou même à bord du navire, mais euvers des personnes étrangères à l'équipage, le consul, si l'autorité locale les arrête ou procède contre eux, fera les démarches nécessaires pour que les Belges ainsi arrêtés soient traités avec humanité, défendus et jugés impartialement. Réglements Consulaires, Bruxelles, 1857, page 70.
Argument for Appellants.
consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of all differences which may arise, either at sea or in port, between the captains, officers, and crews, without exception, particularly with reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere, except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore, or in the port, or when a person of the country or not belonging to the crew, shall be concerned therein.
"In all other cases, the aforesaid authorities shall confine themselves to lending aid to the consuls and vice-consuls or consular agents, if they are requested by them to do so, in causing the arrest and imprisonment of any person whose name is inscribed on the crew list, whenever, for any cause, the said officers shall think proper."
The claim of the consul was, that, by the law of nations, and the provisions of this treaty, the offence with which Wildenhus was charged is "solely cognizable by the authority of the laws of the Kingdom of Belgium," and that the State of New Jersey was without jurisdiction in the premises. The Circuit Court refused to deliver the prisoners to the consul and remanded them to the custody of the jailer. 28 Fed. Rep. 924. To reverse that decision this appeal was taken.
Mr. F. R. Coudert and Mr. Edward K. Jones for appellants.
I. The offence in question in this case is exclusively cognizable by the authority of the Kingdom of Belgium. (1) Under the general rules of international law, to which the practice of the United States conforms; and (2) By virtue of treaties. between the United States and Belgium.
Mr. Wheaton, in his work on International Law, says: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, with such definitions and modifications as may be established by general con
Argument for Appellants.
sent." Wheat. Int. Law (Dana's ed.), § 14; see also Halleck, Int. Law, 42; 1 Kent Com. 3. The sources and evidence of international law, aside from written conventions and treaties, are the text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent. Wheat. Int. Law (Dana's ed.), § 15; 1 Kent Com. 18, 19. This "law of nations" is a part of the law of the land, and is obligatory upon the courts of the United States. The Amelia, 1 Cranch, 1; S. C. 4 Dall. 34; The Charming Betsy, 2 Cranch, 64, 118; The Nereide, 9 Cranch, 388; The Estrella, 4 Wheat. 298; Holmes v. Jennison, 14 Pet. 540, 569; Henfield's Case, Whart. St. Tr. 49-66. The general rule is well established, that the vessels of a nation are to be considered as a part of its territory, and the persons on board of them are deemed to be within the jurisdiction of such nation, and are protected and governed by the laws of the country to which such vessel belongs. Vattel Law of Nations, Book 1, c. 19, § 216; Wheat. Int. Law, 3d ed. 157; Wheat. Int. Law (Dana's ed.) § 106; 1 Kent Com. 26; Crapo v. Kelly, 16 Wall. 610; In re Ah Sing, 13 Fed. Rep. 286; Polson Int. Law, 25; 1 Massé Droit Commercial, 421, 423; 1 Ortolan Diplomatie de la Mer, 4th ed., Paris, 1864, 252, 292; Halleck Int. Law, 172, 173; 1 De Clerq et de Vallat Guide Pratique des Consulats, 366; 2 De Clerq Formulaires des Chancelleries, 65; 1 Requelmo Derecho Internacional, 243, 245.
The doctrine of the general international law is also in accordance with the established practice of the United States.
In commenting on the cases of The Newton and The Sully referred to by M. Massé, M. Ortolan very forcibly and pertinently observes: "These two cases are interesting from another point of view, which shows that the Americans, contrary to the opinion of one of their writers on international law, Mr. Wheaton, claim national jurisdiction of offences committed on board of their merchant vessels in a foreign port, when these offences have taken place only between the men of the crew, and the tranquillity of the port has not been broken; in other words, this maritime power adopts the same principles that we do."
Argument for Appellants.
The action of our government, through its consuls at Antwerp and Marseilles, in the cases of The Newton and The Sally, in 1806, was soon afterwards followed by legislation affirming the principle of international law, declared and assented to by the two nations in those cases. The Crimes Act of March 3, 1825, c. 65, 4 Stat. 115, 116, after defining certain crimes committed at sea and other places within the admiralty jurisdiction of the United States, proceeds as follows:
"Sec. 5. And be it further enacted, that if any offence shali be committed on board of any ship or vessel, belonging to any citizen or citizens of the United States, while lying in a port or place within the jurisdiction of any foreign state or sovereign, by any person belonging to the company of said ship, or any passenger, on any other person belonging to the company of said ship, or any other passenger, the same offence shall be cognizable and punishable by the proper Circuit Court of the United States, in the same way and manner, and under the same circumstances, as if said offence had been committed on board of such ship or vessel on the high seas, and without the jurisdiction of such foreign sovereign or state; provided, always, That if such offender shall be tried for such offence, and acquitted or convicted thereof, in any competent court of such foreign state or sovereign, he shall not be subject to another trial in any court of the United States."
The act of 1825 is carried into the present Revised Statutes, and the section here referred to reproduced in § 730, 5339, and 5345. [Quære de hoc.] Since the passage of the act of 1825, numerous convictions have been had in Federal courts for crimes committed on board American vessels in foreign ports.
See, among others, United States v. Stevens, 4 Wash. C. C. 547; United States v. Seagrist, 4 Blatchford, 420; United States v. Bennett, 3 Hughes, 466. In the case last cited, the rule is explicitly asserted that "the law of the United States follows an American vessel wherever she may be on navigable waters, so that an offence committed on board such vessel is an offence against the United States, though the vessel be in a harbor or river of a foreign country.”
The act of 1825 was followed in 1833 by the following in
Argument for Appellants.
structions issued by Mr. Livingston, as Secretary of State, to the consuls of the United States in foreign countries. "Art. 36. Where piracy, mutiny, or any other offence against the laws of the United States shall have been committed on board of any vessel of the United States coming into the consular district, it is the duty of the consul, after taking the depositions necessary to establish the facts, to apply to the local authorities for means of securing the offenders while they remain in port, and to provide the means of sending them, without delay, to the United States for trial; and in all such cases where the vessel, on board which the offence was committed, is not bound to the United States, the consul is directed to procure two of the principal witnesses to be sent home with the person accused; and he is, at the same time, to transmit certified copies of all the depositions he has taken in relation to the offence; an exact detail of all its circumstances; and such information as may be necessary to secure the conviction of the offenders." Consular Regulations of March 2, 1833. See also for the Diplomatic action of the government, Mr. Webster to Lord Ashburton, August 1, 1842.
II. The offence in question is exclusively cognizable by the authority of Belgium by virtue of treaties existing between that country and the United States. The provision of the treaty under which this proceeding is brought is as follows:
"ARTICLE XI. — The respective consuls-general, consuls, viceconsuls, and consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of differences which may arise, either at sea or in port, between the captains, officers, and crews, without exception, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere, except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore, or in the port, or when a person of the country or not belonging to the crew, shall be concerned therein."
As the Kingdom of Belgium, in its language, laws, and political history, is so intimately connected with the late Kingdom and present Republic of France, it may be useful, in