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Court's Opinion:
.....This appeal brought 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 one 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 rested were thus stated in the petition [requested
by Belgium].
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. .
.....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.
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. .
.....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.
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. .
.....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 nearby. . . .
.....Article XI of a Convention
between the United States and Belgium "concerning the rights,
privileges, and immunities of consular officers" . . . is
as follows:
..........The respective consuls-general,
consuls, vice-consuls, and 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
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.
To reverse that decision this appeal was taken.
.....[Chief Justice Waite orally
restated these facts and then delivered the basic opinion of
the Court as follows:]
. . . [T]he 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 [case], "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." 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. 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 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.
.....Next came a form of convention
which in terms gave the consuls authority to cause proper order
to be maintained on 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 towards 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 offence 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 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.
.....The judgment of the Circuit
Court is affirmed. |