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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.1

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.

The Marie, U. S. Dist. Ct. Ore. 1892, 49 Fed. Rep. 286, DEADY, J. The syllabus is: " Any person who, in pursuance of any arrangement or contract, for a long or a short period | or voyage, is on board of a Norwegian vessel, aiding in her navigation, is a member of the crew of such vessel, within the purview of article 13

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.

4 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.

2 The Elwine Kreplin, U. S. Dist. Ct. E. D. N. Y. 1870, 4 Benedict, 413, 8 Fed. Cas. 4426, BENEDICT, J. (Reversed U. S. Cir. Ct. E. D.N. Y. 1872, 9 Blatchf. 438, Woodruff, J.) Writ of error dismissed sub nomine Ex parte Newman, U. S. Sup. Ct. 1871, 14 Wallace, 152, CLIFFORD, 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.

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.

4U. 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 priv ilege 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; (1) 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) Daris vs. Packard, 7 Peters, 276. () The Bello Coruñes, 6 Wheaton, 152. (*) 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. (1) 17 St. at L. 955.

sions "The trial of all crimes" in Article III, and “in all criminal prosecutions," in Amendinent VI of the Constitu

United States to take bail or affidavits, or for other judicial purposes whatsoever, to receive the application of the consular officer, to issue process against the person complained of, and if it shall appear, on his being returned before the magistrate, that he is not a citizen of the United States, and if a prima facia case shall be made out that, the matter concerns only the internal order and discipline of the foreign vessel, and does not affect directly the laws of the United States or the rights and duties of any citizen, then the magistrate shall commit the seaman to prison to abide the lawful order or control of the master: provided the expenses of the proceeding shall be paid by the consular officer, and the seaman shall not be detained for more than two months after his arrest.

The statute respecting the restoration of deserters was approved March 2, 1829, and was entitled "An act to provide for the apprehension and delivery of deserters from certain foreign vessels in the ports of the United States." (1) It provides "that on application of a consul or vice-consul of any foreign government, having a Treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government while in any port of the United States; and on proof, by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged at the time of desertion to the crew of said vessel, it shall be the duty of any court judge, justice, or other magistrate having competent power, to issue warrants to cause the said person to be arrested for examination; and if, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the said consul or vice-consul to be sent back," etc.

Another series of Treaties grants to the consuls of the United States in the territories of certain Oriental powers exclusive jurisdiction over disputes between citizens of the United States, or over offenses committed by the citizens of the United States, or both.

The first statute to affirm and regulate this jurisdiction was approved on the 11th of August, 1848. (2) Attorney-General Cushing gave an exhaustive opinion on this statute. (3) In 1860, a new statute was passed, (4) which was amended in 1870. (5) Under these various statutes, the following is the present condition of the law and practice in this respect: The consuls and commercial agents of the United States at islands or in countries not inhabited by any civilized people, or recognized by any Treaty of the United States, are invested with power to hear and determine cases in regard to civil rights where the debt or damage does not exceed $1,000 exclusive of costs, and also to issue warrants to arrest

(1) 4 St. at L. 359. (2) 9 St. at L. 276. also Ib., 565. (4) 12 St. at L. 72. (5) 16 St. at L. 183.

(3) 7 Op. At.-Gen. 495; see

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