The court sustained the consul's contention in a brief opinion, the whole of which is as follows:

"It has been held that, where an act of Congress is in conflict with a prior treaty, the act must control, as it is of equal force with the treaty and of later date, (Steamship Co. vs. Hedden, 43 Fed. Rep. 17), hence the contention of libellant's counsel could be sustained if the statute which he invokes in this case (Rev. St. §§ 4079-4081) was in conflict

The powers of consuls to act as judges to the exclusion of the courts of the countries to which they are accredited are, the naked question of whether | where the libel was filed interposed, wages are due or not due, is not a claiming that the matter was under difference which can disturb either his consular jurisdiction pursuant the order or the tranquillity of the to treaty with Norway and Sweden. country. Again the court does not consider it to have been the intention of the United States in making the treaty of April 30, 1852, to subject its citizens in a question of wages claimed or earned on board of a foreign ship, to the judgment or arbitration of a foreign consul or commercial agent; and this opinion of the court is supported by the last clause of the article cited, to wit: 'But this species of judgment or arbitration shall not deprive the contending | with the treaty between the United parties of the right they have to resort on their return to the judicial authority of their own country.' This clause contemplates the return of the complaining mariner to his own country, where he may appeal from the adverse decision given by his consul at a foreign port; thus evidently restraining the application of the provisions of the article to such of the mariners as are subjects or citizens of the country whose flag their ship bears. In the case before the court, the libellants are citizens of the United States. They are already at home, and they have a right to resort to the judicial authority of their own country. Let the plea be overruled and dismissed."

Williams vs. Welhaven, U. S. Dist. Ct. Ala. 1892, 55 Fed. Rep. 80, TOULMIN, J. The libellant, a citizen of the United States filed a libel for wages and damages against the Norwegian steamship, the Welhaven.

States and Norway and Sweden, which must govern the action of the court in the matter under consideration, or if such statute had any application to the case at all. But my opinion is that it is neither; that it is not in conflict with the treaty; and that it has no application to a case of this character. The earnest desire of this court to afford to seamen every right and protection authorized by the law, and the sympathy I have with that class of people to which libellant belongs, strengthened by the able and impressive argument of his counsel, induced me to take for examination and careful consideration the matter and arguments submitted before a decision by the court denying the jurisdiction prayed for; but such consideration has only served to confirm the correctness of the decision of this court in the case of The Burchard, 42 Fed. Rep. 608, where it was held that the court had no jurisdiction

The Norwegian consul at Mobile, in a case very similar to this one.

as a general rule, confined to controversies to which seamen of vessels of their own nationality are parties, or to the administration of effects of citizens of their country dying in the country to which they are accredited. A number of instances in which these judicial powers have been conferred on consuls have been referred to in the notes appended to this section; special reference will be made in the next section to two adjudications on the subject.1

§ 449. The Elwine Kreplin, 1870; Wildenhus's Case, 1887. The treaty with Prussia of 1828 gives jurisdiction, under the conditions therein stated, to consuls of that country in controversies involving the wages of seamen on Prussian vessels; it also provides that the decisions of the consuls shall be carried into effect by local authorities.'

In the Elwine Kreplin' a United States District Judge, denied the exclusive jurisdiction of the Prussian consul at New York, and against his protest took cognizance of the claims of Prussian seamen against a Prussian vessel on the

In addition to that case, I cite, as sustaining the decision in this, The Salomoni, 29 Fed. Rep. 534; The Marie, 49 Fed. Rep. 286; The Elwine Kreplin, 9 Blatchf. 438; In re Ross, 140 U. S. 453, 11 Sup. Ct. Rep. 897. I am, therefore, constrained to sustain the exceptions to the libel, and order that the libel be dismissed."

Jordan vs. Williams, U. S. Cir. Ct. Mass. 1851, 1 Curtis, 69, Fed. Cas. 7528, CURTIS, J. Rights of United States consuls over seamen on American vessels in foreign ports discussed and general rules laid down.

of the treaty of 1827 between the United States and the kingdom of Norway and Sweden, and the consul of that country has exclusive jurisdiction of any difference arising between him and the master of such vessel; and it matters not if such person is an American citizen, and shipped at an American port."

In re Ross, U. S. Sup. Ct. 1891, 140 U. S. 453, FIELD, J.

For right of consuls to administer estates, see note on p. 348, post. § 449.

1U. S. Treaties and Con. 1889, p. 916: Arts. X and XI; U. S. Treaties in Force, 1899, p. 515.

The Marie, U. S. Dist. Ct. Ore. 2 The Elwine Kreplin, U. S. Dist. 1892, 49 Fed. Rep. 286, DEADY, J. Ct. E. D. N. Y. 1870, 4 Benedict, The syllabus is: "Any person who, 413, 8 Fed. Cas. 4426, BENEDICT, J. in pursuance of any arrangement or (Reversed U. S. Cir. Ct. E. D.N. Y. contract, for a long or a short period | 1872, 9 Blatchf. 438, Woodruff, J.) or voyage, is on board of a Norwe- | Writ of error dismissed sub nomine gian vessel, aiding in her navigation, Ex parte Newman, U. S. Sup. Ct. is a member of the crew of such ves- 1871, 14 Wallace, 152, CLIFsel, within the purview of article 13 FORD, J.

ground, as stated in his opinion, that the vessel could not be proceeded against in rem, so as to properly protect the rights of the seamen under any judgment that the consul might deliver.

The Circuit Court reversed this decision, holding that the District Court had no jurisdiction of the lien, or jurisdiction to enforce it in our ports; furthermore, that the reciprocal rights given to consuls of the United States in Prussian ports formed the basis for the consular jurisdiction in our ports; that the power of the courts to enforce the lien was sufficient to justify a proceeding in rem, as well as in personam, to enforce the judgment; that the rights of the seamen would be protected under the consular decision in all respects, and the United States courts, therefore, had no right to interfere. The Supreme Court refused to issue a writ of error in this case although the main question was not before it.

The extent of consular jurisdiction was also passed on by the Supreme Court in Wildenhus's Case, in which an attempt was made to transfer a seaman on a Belgian vessel, who had committed homicide, from the jurisdiction of the local authorities to that of the consul who claimed that he had exclusive jurisdiction of the case.

4

Under the treaty with Belgium of 1880, the Supreme Court refused to surrender the prisoner to the consul on the ground that there had been such a breach of peace that it affected the community at large, and had invoked the power of the local government whose people had been disturbed thereby; that such an act by its nature created a disorder in the language of the treaty, thus taking this particular case out of the jurisdiction of the consul and placing it within the jurisdiction of the local tribunals.

$450. Ex-Territoriality; consular courts established by the United States in foreign countries.-The last specific instance which will be referred to in this chapter in which the treaty-making power has been exercised in such

3 Wildenhus's Case, U. S. Sup. Ct. | Also reported sub nomine Mali vs. 1887, 120 U. S. 1, WAITE, Ch. J. Keeper of the Common Jail, etc. Affirming U. S. Cir. Ct. of N. J. 1886, 28 Fed. Rep. 924, WALES, J.

4 U. S. Treaties and Con. 1889, p. 80, see Arts. XI-XV; U. S. Treaties in Force, 1899, p. 51.

a manner that it confers powers upon Congress and officers of the Government wholly beyond those conferred by the Constitution, is the establishment, maintenance and regulation of consular courts in foreign countries, having jurisdiction over citizens of the United States, with power to try and condemn them for crimes committed in foreign countries.1

Nothing more sacred can be imagined by the Anglo-Saxon mind than the right to a trial by jury in criminal cases. The Constitution as originally framed contained in section 2 of Article III the provision, "The trial of all crimes, except in cases of impeachment shall be by jury;" the 6th Amendment of the Constitution which extends "to all criminal prosecution" further assumes to accused persons in all instances the right to a speedy and public trial by an impartial jury of the State and district where the crime shall have been committed, aud also that he shall be informed of the nature and cause of the prosecution, confronted with the witnesses, have compulsory process for obtaining witnesses in his favor, and the

assistance of counsel for his defense.

In the notes to this section the author has quoted the notes made by Mr. Davis as amended by Mr. Haswell on the subject of Consular Courts.2

$ 450.

1 Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, HARLAN, J., see p. 690.

United States vs. Eaton, U. S. Sup. Ct. 1898, 169 U. S. 331, WHITE, J.

In re Ross, U. S. Sup. Ct. 1891, 140 U. S. 453, FIELD, J., and see extracts from opinion in note 4 to § 390, p. 140, ante.

Mahoney vs. United States, U. S. Ct. Claims, 1867, 3 Ct. Claims, 152, NOTT, J. The status, rights and

jurisdiction of consular courts discussed in this case.

Dainese's Case, Ct. Claims, 1879, 15 Ct. Claims, 64, DAVIS, J.

Dainese vs. Hale, Sup. Ct. Dist. Col. 1873, 1 Macarthur, 86, CARTER, J. U. S. Sup. Ct. 1875, 91 U. S. 13, BRADLEY, J. In these cases the right of the United States to establish consular courts and the history of exterritorial courts and the exterritorial jurisdiction exercised in foreign countries is discussed at length.

2 NOTES BY DAVIS AND HASWELL ON CONSULAR COURTS

AND EXTERRITORIALITY.

As the following notes prepared by J. C. Bancroft Davis and John H. Haswell, for the official publications of United States Treaties and Conventions of 1873 and 1889, are a very complete summary of the law

§ 451. Trial by jury not necessary in consular courts established by treaty.-Notwithstanding the broad expres

on the subject of consular courts of the United States established in foreign countries, they are quoted at length with the citations. The extracts are taken from the edition of 1889, pages 1279-1285, and page 1289.

NOTE ON CONSULS.

A consul is not a diplomatic officer; is entitled to no diplomatic privilege; (2) aud is not exempt from criminal prosecution for offenses against the laws of the country in which he resides. (3)

The second section of the third article of the Constitution provides that the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers, and consuls. This privilege is not a personal one, and is not waived by an omission to plead it in the court below. (4)

Consuls represent the individual subjects or citizens of their respective nations when there is no other representation, and, when duly recognized, are competent parties to assert or defend the rights of property of their fellow-citizens or subjects in a court of admirality without special procuration; (5) but they cannot receive actual restitution of the property in controversy without a special authority. (6)

Various treaties have conferred upon foreign Consuls in the United States the power of determining disputes between masters and crews of the vessels of their nationality, and with the aid of the local authorities of arresting and returning deserters from such vessels. Without and independently of a treaty a consul has no such judicial power. (7) The act of apprehending and delivering the seamen under the Treaties and the acts of Congress to enforce them are judicial and not executive acts. (8)

The act to enforce Treaty provisions respecting disputes between masters and crews was approved June 11, 1864. (9) It is not to take effect as to the ships or vessels of any nation unless the President shall have been satisfied that similar provisions have been made by the other contracting party for the execution of the Treaty, and shall have issued his proclamation to that effect. On the 10th of February, 1870, proclamation was made under this act as to the Treaties with France, Prussia, and the other States of the North German Union, and Italy; (10) and on the 11th of May, 1872, as to the Treaty with Sweden and Norway. (11) This statute authorizes any court of record of the United States, or any judge thereof, or any commissioner appointed under the laws of the

(2) 1 Op. At.-Gen., 41, Bradford; Ib., 77, Lee; Ib., 406, Wirt; 2 Ib., 378, Berrien; Ib., 725, Butler. (3) 2 Dallas, 299, note. (4) Davis vs. Packard, 7 Peters, 276. () The Bello Coruñes, 6 Wheaton, 152. (6) Ib. (7) 2 Op. At.-Gen., 378, Berrien; 6 Ib., 148, Cushing. (8) 9 Op. At.-Gen., 96, Black. (9) 13 St. at L. 121. (10) 16 St. at L. 1130. (11) 17 St. at L. 955.