Power may be conferred upon a state officer, as such, to execute
a duty imposed under an act of Congress, and the officer may
execute the same, unless its its execution is prohibited by the
constitution or legislation of the state.
There is no constitutional or statutory provision of California
prohibiting the arrest of a seaman on the request of a French
consul under the treaty with France of 1853, and such arrest, being
for temporary detention of a sailor whose contract is an
exceptional one, does not deprive him of his liberty without due
process of law, and if the chief of police voluntarily performs the
request of the consul, the arrest is not illegal on that
ground.
The only method of enforcing treaty provisions for arrest of
seamen on requisition of foreign consuls is pursuant to the Act of
June 11, 1864, 13 Stat. 121, now §§ 4079, 4080, 4081 Rev.Stat., and
thereunder the requisition must be made to the district court or
judge and the arrest made by the marshal, and an arrest by a local
chief of police is not authorized; but if, after a seaman so
arrested has been produced before the district court on habeas
corpus and the court finds that his case
Page 197 U. S. 170
comes under the treaty and he should be held, the mere fact that
he was arrested by a person not authorized to do so does not
entitle him to his discharge.
After a seaman has been properly arrested on the request of the
French consul under the treaty of 1853 with France, he can he held
in prison at the disposal of the consul for sixty days, as provided
for in § 4081, Rev.Stat., and the court cannot discharge him within
that period against the protest of the consul because the vessel to
which he belonged has left the port at which he was arrested.
This is an appeal on the part of the consul general of the
Republic of France from the judgment of the District Court of the
United States for the Northern District of California, discharging
the defendant Moisan from imprisonment.
The proceeding arises on habeas corpus, to inquire into the
validity of the detention of defendant in the city prison of San
Francisco, in the State of California. His application for the writ
was addressed to the District Court of the United States for the
Northern District of California, and it showed that he was a
citizen of France, and was imprisoned by virtue of a requisition in
writing, signed by the French consul general residing in San
Francisco, and addressed to the chief of police of San Francisco,
California, requiring his arrest as one of the crew of the French
ship
Jacques, then in that port, on account of his
insubordinate conduct as one of such crew. (The requisition
contained all the averments of fact which would warrant the arrest
of the petitioner under the provisions of the treaty of 1853
between the United States and France.) The petitioner also averred
that, at the time of the making of his application for the writ,
the ship was not in the port of San Francisco, but had departed
therefrom some time before. The petitioner was arrested by the
chief of police, under such requisition, on the first day of May,
1903, and since that time had been confined in the city prison of
San Francisco. He asserted that his imprisonment was illegal
because the facts set forth did not confer jurisdiction upon the
consul or the chief of police, or either of them, to restrain
complainant from his liberty, or to imprison him.
Page 197 U. S. 171
The petition was dated the twenty-sixth day of May, 1903, and
the writ was issued, returnable before the district court on the
twenty-eighth day of May, 1903. The chief of police produced the
body of the defendant pursuant to the command of the writ, and
justified the imprisonment under the requisition referred to.
The district court, after hearing counsel, made an order
discharging the defendant from arrest on the ground that it
appeared to the court that the bark
Jacques, of the crew
of which the defendant was a member, had departed from the port of
San Francisco, and was no longer in that port. It was further
ordered that the execution of the order should be stayed for the
term of one day. Immediately thereon. the consul general filed with
the district court his petition for appeal to the Supreme Court of
the United States from the judgment discharging the defendant from
imprisonment, which appeal was duly allowed, and thereupon the
petitioner was admitted to bail by the district court.
Page 197 U. S. 173
MR. JUSTICE PECKHAM, after making the foregoing statement of the
facts, delivered the opinion of the Court.
This case involves the construction of certain language in the
eighth article of the consular convention between the United States
and France, concluded on the twenty-third day of February, 1853,
and proclaimed by the President of the United States on the twelfth
day of August, 1853, the whole convention being still in full force
and effect. 10 Stat. 992, 996. The article is reproduced in the
margin.
*
The first objection made by the defendant is to the validity of
the requisition of the consul general, because it was directed to
the chief of police of San Francisco, he being an officer of the
state, as distinguished from a federal officer, the defendant
contending that a federal treaty cannot impose on a state officer,
as such, a function violating the constitution of the
Page 197 U. S. 174
state which he represents in his official character. It has long
been held that power may be conferred upon a state officer, as
such, to execute a duty imposed under an act of Congress, and the
officer may execute the same unless its execution is prohibited by
the constitution or legislation of the state.
Prigg v.
Pennsylvania, 16 Pet. 539,
41 U. S. 622;
Robertson v. Baldwin, 165 U. S. 275. As
to the objection that there was any statute, or any constitutional
provision of the state, prohibiting the execution of the power
conferred by the treaty upon the state officer, we think it
unfounded. We find nothing in the constitution or in the statutes
of California which forbids or would prevent the execution of the
power by a state officer, in case he were willing to execute it.
The provisions in the constitution of the state, cited by counsel
for defendant, relate, in substance, only to the general
proposition that no person should be deprived of his liberty
without due process of law. The execution of a treaty between the
United States and a foreign government such as the one in question
would not violate any provision of the California Constitution; the
imprisonment is not pursuant to a conviction of crime, but is
simply a temporary detention of a sailor, whose contract of service
is an exceptional one,
Robertson v. Baldwin, supra, for
the purpose of securing his person during the time, and under the
circumstances, provided for in the treaty, as concerning the
internal order and discipline of the vessel. The murder on a
foreign vessel, while in one of the ports of this country, of one
of the crew of such vessel by another member of that crew has been
held not to come within the terms of a somewhat similar treaty with
Belgium because the crime charged concerned more than the internal
order or discipline of the foreign vessel.
Wildenhus'
Case, 120 U. S. 1.
The chief of police voluntarily performed the request of the
consul as contained in the written requisition, and the arrest was
therefore not illegal so far as this ground is concerned.
There is another difficulty, however, and that is founded upon
the provisions of the statutes of the United States. By
Page 197 U. S. 175
the act of Congress approved June 11, 1864, 13 Stat. 121,
entitled
"An Act to Provide for the Execution of Treaties between the
United States and Foreign Nations Respecting Consular Jurisdiction
over the Crews of Vessels of Such Foreign Nations in the Waters and
Ports of the United States,"
full provision was made for the execution of such treaties. It
was therein provided (section second) that application for the
arrest might be made "to any court of record of the United States,
or any judge thereof, or to any commissioner appointed under the
laws of the United States." The act then provided for the issuing
of a warrant for the arrest of the individual complained of,
directed to the marshal of the United States, and requiring him to
arrest the individual, and bring him before the court or person
issuing the warrant for examination, and if, on such examination,
it appeared that the matter complained of concerned only the
internal order or discipline of the foreign ship, the court should
then issue a warrant committing such person to prison, etc. It was
further provided that no person should be detained more than two
months after his arrest, but at the end of that time he should be
allowed to depart, and should not again be arrested for the same
cause. The act was carried forward, in substance, into the Revised
Statutes of the United States, as sections 4079, 4080, 4081.
See also 2 Comp.Stat. page 2766. This statute, having been
passed by the United States for the purpose of executing the
treaties it had entered into with foreign governments, must be
regarded as the only means proper to be adopted for that purpose.
Consequently, the requisition of the consul general should have
been presented to the district court or judge, etc., pursuant to
the act of Congress, and the arrest should have been made by the
marshal, as therein provided for. Therefore the arrest of the
seaman by the chief of police was unauthorized. When, however, the
defendant was brought before the district court of the United
States upon the writ of habeas corpus, that court being mentioned
in the statute as one of the authorities to issue warrants for the
arrest of the
Page 197 U. S. 176
individual complained of, and having power under the statute to
examine into the question, and to commit the person thus arrested
to prison, according to the provisions of the act, it would have
been the duty of the court under such circumstances, upon the
production of the defendant under the writ, and upon the request of
the consul, to have made an examination, and to have committed the
defendant to prison if he were found to come under the terms of the
treaty. It was therefore but a formal objection to the regularity
of the arrest, which would have been obviated by the action of the
court in examining into the case, and the defendant would not have
been entitled to discharge merely because the person executing the
warrant was not authorized so to do.
The important question remains as to the true construction of
the eighth article of the treaty, with reference to the limitation
of the imprisonment of the person coming within its terms. The
district court has held that the imprisonment must end with the
departure of the vessel from the port at which the seaman was taken
from the vessel. This we regard as an erroneous construction of the
terms of the article.
The provisions of that article seem to us plain, and they refer
to the imprisonment of the seaman and his detention during the time
of his stay in port, and the language does not refer, in that
respect, to the stay of the ship in port. The treaty provides that
the local authorities shall lend forcible aid to the consuls when
they may ask for the arrest and imprisonment of persons composing
the crew, whom they may deem it necessary to confine. The language
has no reference whatever to the ship, and they (the persons
arrested) are held during their stay in the port "at the disposal
of the consul." Surely the ship is not held at the disposal of the
consul. It is the persons arrested who are held, and they are to be
released at the mere request of the consul, made in writing, and
the expenses of the arrest and detention of the persons arrested
are to be paid by the consul. From the language of the treaty, the
departure of the ship from the port need have no effect
Page 197 U. S. 177
whatever upon the imprisonment of the persons arrested. The
statute (Rev.Stat. § 4081) provides that the imprisonment shall in
no case last longer than two months, and at the end of that time
the person arrested is to be set at liberty, and shall not again be
arrested for the same cause. The statute makes no reference to the
stay of the vessel in port, and the legislative construction of the
treaty is that the imprisonment is not limited by the departure of
the ship. Therefore the statute provides that such imprisonment
shall not last, in any event, longer than two months. That term
might end while the vessel was still in port. This construction not
only carries out the plain language of the treaty, but, it seems to
us, it is its reasonable interpretation. A vessel may arrive in
port with a mutinous sailor whose arrest is asked for under the
treaty. When imprisoned pursuant to the terms of the treaty, he
ought not to be discharged without the request of the consul while
within the limit of the term of imprisonment provided by the
statute, simply because the vessel from which he was taken has left
the port. If that were so, the result would be either that the
sailor would be discharged as soon as the ship left the port or, in
order to prevent such discharge, he would be taken on board the
ship again, and probably be placed in irons. The ship might then
continue a voyage which would not bring it back to France for
months. During this time, the sailor might be kept in irons and in
close confinement on board ship, or else the discipline and safety
of the ship might be placed in peril. By the other construction,
although the ship had left the port without the mutinous sailor, he
would not be entitled to his discharge from imprisonment within the
two months provided for by the statute, and this would give an
opportunity to the consul to send the sailor back to France at the
earliest opportunity, and at the expense of the French government,
by a vessel which was going directly to that country.
The district court erred in discharging the defendant before the
expiration of the two months provided for in the act of
Page 197 U. S. 178
Congress and against the protest of the French consul. Less than
one of the two months of imprisonment permitted by the statute had
expired when the defendant was discharged. The order discharging
him must be reversed, and the defendant remanded to imprisonment in
a prison where prisoners under sentence of a court of the United
States may be lawfully committed, Rev.Stat. § 4081, subject to the
jurisdiction of the French consular authority of the port of San
Francisco; but such imprisonment must not exceed, when taken with
the former imprisonment of the defendant, the term of two months in
the aggregate.
Reversed, and remanded for further proceedings consistent
with this opinion.
MR. JUSTICE HARLAN dissented.
*
"Article VIII. The respective consuls general, consuls, vice
consuls, or consular agents, shall have exclusive charge of the
internal order of the merchant vessel of their nation, and shall
alone take cognizance of differences which may arise, either at sea
or in port, between the captain, officers, and crew, without
exception, particularly in reference to the adjustment of wages and
the execution of contracts. The local authorities shall not on any
pretext interfere in these differences, but shall lend forcible aid
to the consuls when they may ask it, to arrest and imprison all
persons composing the crew whom they may deem it necessary to
confine. Those persons shall be arrested at the sole request of the
consuls, addressed in writing to the local authority, and supported
by an official extract from the register of the ship or the list of
the crew, and shall be held, during the whole time of their stay in
the port at the disposal of the consuls. Their release shall be
granted at the mere request of the consuls, made in writing. The
expenses of the arrest and detention of those persons shall be paid
by the consuls."
