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Argument for Appellants.

order to arrive at a proper interpretation of the meaning of this article of the Belgian treaty, to recur to similar provisions to be found in the treaties of France with the United States. The earliest provision upon the subject in question in a treaty to which the United States was a party, is to be found in the 8th Article of the treaty, between this country and France, of November 14, 1788. That Article is as follows: "ARTICLE VIII. The consuls or vice-consuls shall exercise police over all the vessels of their respective nations, and shall have on board the said vessels all power and jurisdiction in civil matters in all the disputes which may there arise; they shall have an entire inspection over the said vessels, their crew, and the changes and substitutions there to be made; for which purpose they may go on board the said vessels whenever they may judge it necessary. Well understood that the functions hereby allowed shall be confined to the interior of the vessels, and that they shall not take place in any case which shall have any interference with the police of the ports where the said vessels shall be."

The same provision was in substance reenacted by the treaty between the United States and France, of February 23, 1853, in the 8th Article. In every substantial respect these treaties correspond with the Belgian. In commenting upon the French treaties relative to the subject in question, M. Ortolan says:

"Various public treaties contain special clauses relative to the right of police, and of jurisdiction on French merchant Vessels in foreign ports. Notwithstanding differences in the wording, the most important and recent are drawn in accordance with the spirit of the preceding principles; that is to say, in the sense of a distinction to be made between crimes or offences which do not extend beyond the interior and between men of the crew of the vessel, and those which concern the police of the port and compromise its tranquillity. Such was already in 1788 the convention of the 14th November between France and the United States." Ortolan Diplomatie de la Mer, 4th ed., p. 278.

M. Massé, in the passage above referred to, says: "A dis

Argument for Appellants.

tinction is to be made between crimes and offences which disturb the order of the place where the foreign vessel is, and those which disturb only the internal order of the ship - [et ceux qui ne portent atteinte qu'à l'ordre intérieur du bâtiment]. The former belong to the territorial jurisdiction; the latter are cognizable only by the nation to which belongs the vessel or the flag." Further on, in speaking of the cases of The Newton and The Sally, after referring to crimes that affect the police of the port, he says: "It is otherwise in case of offences committed on board of the foreign vessel by a man of the crew against another man of the same crew, because it concerns the internal discipline of the vessel — [parce qu'il s'agit alors de la discipline intérieure du vaisseau]-in which the local authority should not interfere when its assistance is not called for, or the tranquillity of the port is not broken." See also Dana's Note to Wheaton, §§ 95, 153; and for the principles for construing treaties see United States v. Payne, 8 Fed. Rep. 883; Hauenstein v. Lynham, 100 U. S. 483.

Since this class of treaties has been concluded, some modifications have been made in the instructions to consuls. See Consular Regulations of 1874, § 172-175, 194–196. These show that the rule of general international law, originally laid down in the cases of The Newton and The Sally, and asserted in this case, is considered by the United States as being embodied in all the recent treaties with foreign nations, in which the present treaty with Belgium is included.

If this be not so, then the United States has receded from its position in the cases of The Newton and The Sally, and repudiated the act of 1825, and Article 36 of the Consular Regulations of 1833. There is no evidence to show such recession and repudiation. On the contrary, the tendency of the whole history of the government has been in the direction of enlarging and extending the immunities and exemp tions of its citizens from the authority of foreign nations.

The attitude and action of the executive department of the government upon questions of foreign relations furnishes a rule for observance by the judicial department, and in all cases that may arise with regard to questions of international

Opinion of the Court.

law it is the duty of the courts to adopt the determination of the other branch of the government upon such questions as the basis of their decisions. United States v. Palmer, 3 Wheat. 610, 634; The Divina Pastora, 4 Wheat. 52, 63; The Santissima Trinidad, 7 Wheat. 283, 337; Foster v. Neilson, 2 Pet. 253, 307. See also the able review of the decision of the Supreme Court of New York in the McLeod case, written by Judge Tallmadge and published in the Appendix to 26 Wendell, 663, 684.

Mr. Coudert and Mr. Jones also argued that the Federal courts had power to release the prisoners by writ of habeas

corpus.

Mr. C. H. Winfield for appellee.

MR. CHIEF JUSTICE WAITE, after stating the case as above reported, delivered the opinion of the court.

By $$ 751 and 753 of the Revised Statutes the courts of the United States have power to issue writs of habeas corpus which shall extend to prisoners in jail when they are in "custody in violation of the Constitution or a law or treaty of the United States," and the question we have to consider is, whether these prisoners are held in violation of the provisions of the existing treaty between the United States and Belgium.

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, 116, 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 U. S. 520; 1 Phillimore's Int. Law, 3d ed. 483, § 351; Twiss' Law of Nations

Opinion of the Court.

in Time of Peace, 229, § 159; Creasy's Int. Law, 167, § 176; Halleck's Int. Law, 1st ed. 171. And the English judges have uniformly recognized 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. Regina v. Cunningham, Bell C. C. 72; S. C. 8 Cox C. C. 104; Regina v. Anderson, 11 Cox C. C. 198, 204; S. C. L. R. 1 C. C. 161, 165; Regina v. Keyn, 13 Cox C. C. 403, 486, 525; S. C. 2 Ex. 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.

From experience, however, it was found long ago that it would be beneficial 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 only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government 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 subject, 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.

Opinion of the Court.

The first of these conventions entered into by the United States after the adoption of the Constitution was with France, on the 14th of November, 1788, 8 Stat. 106, "for the purpose of defining and establishing the functions and privileges of their respective consuls and vice-consuls," Art. VIII of which is as follows:

"The consuls or vice-consuls shall exercise police over all the vessels of their respective nations, and shall have on board the said vessels all power and jurisdiction in civil matters, in all the disputes which may there arise; they shall have an entire inspection over the said vessels, their crew, and the changes and substitutions there to be made; for which purpose they may go on board the said vessels whenever they may judge it necessary. Well understood that the functions. hereby allowed shall be confined to the interior of the vessels, and that they shall not take place in any case which shall have any interference with the police of the ports where the said vessels shall be."

It was when this convention was in force that the cases of The Sally and The Newton arose, an account of which is given in Wheaton's Elements of International Law (3d ed.) 153, and in 1 Phillimore's International Law (3d ed.) 484 and (2d ed.) 407. The Sally was an American merchant vessel in the port of Marseilles, and The Newton a vessel of a similar character in the port of Antwerp, then under the dominion of France. In the case of The Sally, the mate, in the alleged exercise of discipline over the crew, had inflicted a severe wound on one of the seamen, and in that of The Newton one seaman had made an assault on another seaman in the vessel's boat. In each case the proper consul of the United States claimed exclusive jurisdiction of the offence, and so did the local authorities of the port; but the Council of State, a branch of the political department of the government of France to which the matter was referred, pronounced against the local tribunals, "considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other was that of a severe wound inflicted by the mate of the American ship Sally upon

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