A circuit court of the United States has jurisdiction to issue a
writ of habeas corpus to determine whether one of the crew of a
foreign vessel in a port of the United States, who is in the
custody of the state authorities charged with the commission of a
crime within the port against the laws of the state, is exempt from
local jurisdiction under the provisions of a treaty between the
United States and the foreign nation to which the vessel
belongs.
Unless exempted by treaty, a foreign merchant vessel entering a
port of the United States for purposes of trade is subject to the
local law, and the local courts may punish for crimes committed
upon the vessel within the port by one foreigner upon another
foreigner.
Article XI of the Convention between Belgium and the United
States of March 9, 1880, 21 Stat. 181, conferring power upon
Belgian consuls in the United States to take cognizance of
differences between captains, officers, and crews of Belgian
merchant vessels which are in parts of the United States, and
providing that the local authorities shall not interfere except
when a disorder arises of such a nature as to disturb tranquility
or public order on shore or in the port, does not apply to a case
of
Page 120 U. S. 2
felonious homicide committed on board of a Belgian merchant
vessel in a port of the United States, and does not deprive the
local authorities of the port of jurisdiction over such a crime so
committed by one Belgian upon the person of another Belgian, both
belonging to the crew of the vessel.
This appeal brings up an application made to the Circuit Court
of the United States for the District of New Jersey, by Charles
Mali, the "Consul of his Majesty the King of the Belgians for the
States of New York and New Jersey in the United States," for
himself as such consul "and in behalf of one Joseph Wildenhus, one
Gionviennie Gobnbosich, and John J. Ostenmeyer," for the release,
upon a writ of habeas corpus, of Wildenhus, Gobnbosich, and
Ostenmeyer from the custody of the keeper of the common jail of
Hudson County, New Jersey, and their delivery to the consul, "to be
dealt with according to the law of Belgium." The facts on which the
application rests are thus stated in the petition for the writ:
"
Second. That on or about the sixth day of October,
1886, on board the Belgian steamship
Noordland there
occurred an affray between the said Joseph Wildenhus and one Fijens
wherein and whereby it is charged that the said Wildenhus stabbed
with a knife and inflicted upon the said Fijens a mortal wound of
which he afterwards died."
"
Third. That the said Wildenhus is a subject of the
Kingdom of Belgium, and has his domicile therein, and is one of the
crew of the said steamship
Noordland, and was such when
the said affray occurred."
"
Fourth. That the said Fijens was also a subject of
Belgium, and had his domicile and residence therein, and at the
time of the said affray, as well as at the time of his subsequent
death, was one of the crew of the said steamship."
"
Fifth. That at the time said affray occurred, the said
steamship
Noordland was lying moored at the dock of the
port of Jersey City in said State of New Jersey."
"
Sixth. That the said affray occurred and ended wholly
below the deck of the said steamship, and that the tranquility of
the said port of Jersey City was in nowise disturbed or endangered
thereby. "
Page 120 U. S. 3
"
Seventh. That said affray occurred in the presence of
several witnesses, all of whom were and still are of the crew of
the said vessel, and that no other person or persons except those
of the crew of said vessel were present or near by."
"
Eighth. Your petitioner therefore respectfully shows
unto this Honorable Court that the said affray occurred outside of
the jurisdiction of the said State of New Jersey."
"
Ninth. But notwithstanding the foregoing facts, your
petitioner respectfully further shows that the police authorities
of Jersey City, in said State of New Jersey, have arrested the said
Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John
J. Ostenmeyer, of the crew of the said vessel (one of whom is a
quartermaster thereof), and that said Joseph Wildenhus has been
committed by a police magistrate, acting under the authority of the
said state, to the common jail of the County of Hudson on a charge
of an indictable offense under the laws of the said State of New
Jersey, and is now held in confinement by the keeper of the said
jail, and that the others of the said crew, arrested as aforesaid,
are also detained in custody and confinement as witnesses to
testify in such proceedings as may hereafter be had against the
said Wildenhus."
Articles 8, 9, and 10 of a royal decree of the King of the
Belgians, made on the 11th of March, 1857, relating to consuls and
consular jurisdiction, are as follows:
Page 120 U. S. 4
"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 offenses 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 offenses committed on board of a Belgian
vessel by one of the ship's company toward 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 to a Belgian vessel
shall be guilty of offenses 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
Page 120 U. S. 5
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 tranquility 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 is that by the law of nations and the
provisions of this treaty, the offense with which Wildenhus has
been charged is "solely cognizable by the authority of the laws of
the Kingdom of Belgium," and that the State of New Jersey is
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 F. 924. To reverse that decision this
appeal was taken.
Page 120 U. S. 11
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 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
Page 120 U. S. 12
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; 8 Cox C.C. 104;
Regina v.
Anderson, 11 Cox C.C. 198, 204; L.R. 1 Cr.Cas. 161, 165;
Regina v. Keyn, 13 Cox C.C. 403, 486, 525; 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 toward 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 tranquility 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 tranquility 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.
Page 120 U. S. 13
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 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 is 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 offense, 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
Page 120 U. S. 14
one of the seamen for having made use of the boat without
leave."
This was clearly because the things done were not such as to
disturb "the peace or tranquility of the port." Wheaton's Elements
Int.Law, 3d ed., 154. The case of
The Sally was simply a
quarrel between certain of the crew while constructively on board
the vessel, and that of
The Newton grew out of a
punishment inflicted by an officer on one of the crew for
disobedience of orders. Both were evidently of a character to
affect only the police of the vessel, and thus within the authority
expressly granted to the consul by the treaty.
No other treaty or convention bearing on this subject to which
our attention has been called was entered into by the United States
until a treaty with Sweden and Norway on the 4th of September,
1816, 8 Stat. 232, where it was agreed, by Art. 5, that
"The consuls and their deputies shall have the right, as such,
to act as judges and arbitrators in the differences which may arise
between the captains and crews of the vessels of the nation whose
affairs are entrusted to their care. The respective governments
shall have no right to interfere in matters of this kind except the
conduct of the captain or crew shall disturb the peace and
tranquility of the country in which the vessel may be or the consul
of the place shall feel himself obliged to resort to the
interposition and support of the executive authority to cause his
decision to be respected and maintained, it being nevertheless
understood that this kind of judgment or award shall not deprive
the contending parties of the right which they have, on their
return, to recur to the judicial authorities of their own
country."
Substantially the same provision is found in treaties or
conventions concluded with Prussia in 1828, Art. X, 8 Stat. 382;
with Russia in 1832, Art. VIII, 8 Stat. 448; with Greece in 1837,
Art. 12, 8 Stat. 504; with Hanover in 1840, Art. VI, 8 Stat. 556;
with Portugal, also in 1840, Art. S, 8 Stat. 564; with the Grand
Duchy of Mecklenburg-Schwerin in 1847, Art. IX, 9 Stat. 916; with
Oldenburg in 1847, 9 Stat. 868; with Austria in 1848, Art. IV, 9
Stat. 946; with the Hanseatic republics in 1852, Art. I, 10 Stat.
961; with the Two Sicilies in 1855, Art. XIX, 11 Stat.
Page 120 U. S. 15
650; with Denmark in 1861, Art. I, 13 Stat. 605; and with the
Dominican Republic in 1867, Art. XXVI, 15 Stat. 487.
In a convention with New Grenada concluded in 1850, the
provision was this:
"They [the consuls, etc.] may cause proper order to be
maintained on board vessels of their nation, and may decide on
disputes arising between the captains, the officers, and the
members of the crew unless the disorders taking place on board
should disturb the public tranquility, or persons not belonging to
the crew or the nation in whose service the consul is employed, in
which case the local authorities may interfere."
Art. III, clause 8, 10 Stat. 903.
Following this was a convention with France, concluded in 1853,
10 Stat. 996, Art. VIII of which is as follows:
"The respective consuls general, consuls, vice-consuls, or
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 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."
The same provision in substantially the same language was
embraced in a convention with Italy in 1868, Art. XI, 15 Stat. 609,
and in another with Belgium, also in 1868, Art. XI, 16 Stat. 761.
This convention with Belgium continued in force until superseded by
that of 1880-1881, under which the present controversy arose.
Page 120 U. S. 16
The form of the provision found in the present convention with
Belgium first appeared in a convention with Austria concluded in
1870, Art. XI, 17 Stat. 827, and it is found now in substantially
the same language in all the treaties and conventions which have
since been entered into by the United States on the same subject.
See the conventions with the German Empire in 1871, Art.
XIII, 17 Stat. 928; with the Netherlands in 1878, Art. XI, 21 Stat.
10; with Italy in 1881, Art. I, 22 Stat. 18; with Belgium in 1881,
as stated above, and with Roumania, the same year, Art. XI, 23
Stat. 3.
It thus appears that at first provision was made only for giving
consuls police authority over the interior of the ship, and
jurisdiction in civil matters arising out of disputes or
differences on board -- that is to say, between those belonging to
the vessel. Under this police authority, the duties of the consuls
were evidently confined to the maintenance of order and discipline
on board. This gave them no power to punish for crimes against the
peace of the country. In fact, they were expressly prohibited from
interfering with the local police in matters of that kind. The
cases of
The Sally and
The Newton are
illustrative of this position. That of
The Sally related
to the discipline of the ship, and that of
The Newton to
the maintenance of order on board. In neither case was the
disturbance of a character to affect the peace or the dignity of
the country.
In the next conventions, consuls were simply made judges and
arbitrators to settle and adjust differences between those on
board. This clearly related to such differences between those
belonging to the vessel as are capable of adjustment and settlement
by judicial decision or by arbitration, for it simply made the
consuls judges or arbitrators in such matters. That would of itself
exclude all idea of punishment for crimes against the state which
affected the peace and tranquility of the port, but, to prevent all
doubt on this subject, it was expressly provided that it should not
apply to differences of that character.
Next came a form of convention which in terms gave the consuls
authority to cause proper order to be maintained on
Page 120 U. S. 17
board, and to decide disputes between the officers and crew, but
allowed the local authorities to interfere if the disorders taking
place on board were of such a nature as to disturb the public
tranquility, and that is substantially all there is in the
convention with Belgium which we have now to consider. This treaty
is the law which now governs the conduct of the United States and
Belgium toward each other in this particular. Each nation has
granted to the other such local jurisdiction within its own
dominion as may be necessary to maintain order on board a merchant
vessel, but has reserved to itself the right to interfere if the
disorder on board is of a nature to disturb the public
tranquility.
The treaty is part of the supreme law of the United States, and
has the same force and effect in New Jersey that it is entitled to
elsewhere. If it gives the consul of Belgium exclusive jurisdiction
over the offense which it is alleged has been committed within the
territory of New Jersey, we see no reason why he may not enforce
his rights under the treaty by writ of habeas corpus in any proper
court of the United States. This being the case, the only important
question left for our determination is whether the thing which has
been done -- the disorder that has arisen -- on board this vessel
is of a nature to disturb the public peace, or, as some writers
term it, the "public repose," of the people who look to the State
of New Jersey for their protection. If the thing done -- "the
disorder," as it is called in the treaty -- is of a character to
affect those on shore or in the port when it becomes known, the
fact that only those on the ship saw it when it was done is a
matter of no moment. Those who are not on the vessel pay no special
attention to the mere disputes or quarrels of the seamen while on
board, whether they occur under deck or above. Neither do they as a
rule care for anything done on board which relates only to the
discipline of the ship or to the preservation of order and
authority. Not so, however, with crimes which from their gravity
awaken a public interest as soon as they become known, and
especially those of a character which every civilized nation
considers itself bound to provide a severe punishment for when
committed
Page 120 U. S. 18
within its own jurisdiction. In such cases, inquiry is certain
to be instituted at once to ascertain how or why the thing was
done, and the popular excitement rises or falls as the news spreads
and the facts become known. It is not alone the publicity of the
act or the noise and clamor which attends it that fixes the nature
of the crime, but the act itself. If that is of a character to
awaken public interest when it becomes known, it is a "disorder,"
the nature of which is to affect the community at large, and
consequently to invoke the power of the local government whose
people have been disturbed by what was done. The very nature of
such an act is to disturb the quiet of a peaceful community and to
create, in the language of the treaty, a "disorder" which will
"disturb tranquility and public order on shore or in the port." The
principle which governs the whole matter is this: disorders which
disturb only the peace of the ship or those on board are to be
dealt with exclusively by the sovereignty of the home of the ship,
but those which disturb the public peace may be suppressed, and, if
need be, the offenders punished, by the proper authorities of the
local jurisdiction. It may not be easy at all times to determine to
which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending
circumstances of the particular case, but all must concede that
felonious homicide is a subject for the local jurisdiction, and
that if the proper authorities are proceeding with the case in a
regular way, the consul has no right to interfere to prevent it.
That, according to the petition for the habeas corpus, is this
case.
This is fully in accord with the practice in France, where the
government has been quite as liberal toward foreign nations in this
particular as any other, and where, as we have seen in the cases of
The Sally and
The Newton, by a decree of the
council of state, representing the political department of the
government, the French courts were prevented from exercising
jurisdiction. But afterwards, in 1859, in the case of
Jally, the mate of an American merchantman, who had killed
one of the crew and severely wounded another on board the ship in
the port of Havre, the Court of Cassation, the highest judicial
Page 120 U. S. 19
tribunal of France, upon full consideration, held, while the
convention of 1853 was in force, that the French courts had
rightful jurisdiction, for reasons which sufficiently appear in the
following extract from its judgment:
"Considering that it is a principle of the law of nations that
every state has jurisdiction throughout its territory;"
"Considering that, by the terms of article 3 of the Code
Napoleon, the laws of police and safety bind all those who inhabit
French territory, and that consequently foreigners, even
transeuntes, find themselves subject to those laws;"
"Considering that merchant vessels entering the port of a nation
other than that to which they belong cannot be withdrawn from the
territorial jurisdiction, in any case in which the interest of the
state of which that port forms part finds itself concerned, without
danger to the good order and to the dignity of the government;"
"Considering that every state is interested in the repression of
crimes and offenses that may be committed in the ports of its
territory, not only by the men of the ship's company of a foreign
merchant vessel toward men not forming part of that company, but
even by men of the ship's company among themselves whenever the act
is of a nature to compromise the tranquility of the port, or the
intervention of the local authority is invoked, or the act
constitutes a crime by common law (
droit commun, the law
common to all civilized nations), the gravity of which does not
permit any nation to leave it unpunished, without impugning its
rights of jurisdictional and territorial sovereignty, because that
crime is in itself the most manifest as well as the most flagrant
violation of the laws which it is the duty of every nation to cause
to be respected in all parts of its territory."
1 Ortolan Diplomatie de la Mer (4th ed.) 455, 456; Sirey (N.S.)
1859, p. 189.
The judgment of the circuit court is affirmed.
