No. 16.
Count Lippe-Weissenfeld to Mr. Davis.

Sir: Referring to your note addressed to Baron Schaeffer on the 19th of May last, in regard to the arrest of Capt. Sylvio Ferlan, of the Austrian vessel Ararat, at Philadelphia, on the charge of assaulting a cabin boy, by which you inform this legation that “as the difference appears to be one concerning the maintenance of usual discipline on board, and therefore one proper to be settled by the consul under the treaty of 1870, the Attorney-General had directed the United States attorney at Philadelphia to appear on behalf of Captain Ferlan and ask that the proceedings against him be dismissed.” I have the honor to inform you that advice has been received at this legation from the imperial and royal consulate at Philadelphia that the case in question having been called for trial on the 28th of May in the court of quarter sessions before Judge Finletter and a jury, the points presented by United States attorney J. K. Valentine, in accordance with the Attorney-General’s instructions, were refused; the question raised as to the jurisdiction of the court in this particular case under the treaty of 1870 simply overruled by Judge Finletter, who noted an exception, generally, to his refusal of United States attorney Valentine’s points; that the trial went on, and that the jury, without leaving the box, rendered a verdict of “not guilty.”

I beg to inclose the stenographic report concerning the trial in question for further particulars. His Majesty’s Government considers the question at issue a most important one. It was not whether Captain Ferlan would be acquitted or convicted, but it involves a fundamental principle: the jurisdiction of our consulates under the treaty of 1870 and its protection against arbitrary encroachments from local magistrates in the different States.

It is evident that if the local authorities were allowed to interfere with and to disregard entirely—as in this case—the treaties and conventions concluded between the United States and foreign powers, and to ignore the consular jurisdiction based upon such treaties, cases of insubordination, desertion, &c., on board of foreign vessels in United States ports, would be largely increased in the future.

As the Department of State admits that the difference in question was not a criminal one, but one concerning the maintenance of usual discipline on board, and therefore one proper to be settled by our consul under the treaty of 1870, the Philadelphia court of quarter sessions could consequently have no right to take cognizance of it, the offense, as the evidence shows, having been committed on board an Austrian vessel, the parties concerned being exclusively foreigners, and the peace of the port not having been disturbed. (Article XI.)

Considering all these circumstances, and whereas this trial might be invoked as a precedent on some future occasion against our rights under the treaty of 1870; whereas, further, the reports concerning that trial have been published by the local papers, commented on by the foreign consuls at Philadelphia, and elicited unusual interest, I feel bound to enter a formal protest in the name of His Majesty’s Government against the violation of the treaty rights, as stated above, and request you to provide such measures as will obviate effectively for the future the possibility of similar occurrences.

I take the liberty of suggesting that a formal decision of the Supreme [Page 17] Court on this matter might prove the best safeguard of our treaty rights, and have the honor of requesting you to favor me with your views concerning this important question.

Accept, &c.,


Preceedings in the case of the Ararat.

In the court of quarter sessions in and for the county of Philadelphia.

Commonwealth of Pennsylvania } No. 286. May sessions, 1883.
Sylvio Ferlan, captain Austrian bark Ararat

Charge: Assault and battery on information of Hamilton Stewart.

Before Judge Finletter and a jury.

Charles F. Warwick, esq., A. S. L. Shields, esq., pro Commonwealth.

Charles Gibbons, jr., esq., John K. Valentine, esq., pro defendant.

(Stenographically reported by R. A. West.)

Philadelphia, Monday, May 28, 1883.

The foregoing case having been called for trial, the following jury was impaneled: Bushing, George, grocer, 1204 Green street, Fourteenth ward; Hallowell, Joseph T., machinist, 1603 Ridge avenue, Fifteenth ward; Hellman, Samuel, carpenter, 3608 Hamilton street, Twenty-fourth ward; Hill, Michael, carpenter, 2005 Lombard street, Seventh ward; Jackson, Charles F., gas-fitter, rear 1744 Olive street, Fifteenth ward; Johnson, William, plasterer, rear 916 Third street, Sixteenth ward; Keevan, William, salesman, 333 Gaskill street, Fifth ward; Martin, Thomas J., clerk, 126 Congress street, Fourth ward; Robinson, sr., John, hotel, 4025 Cresson street, Twenty-first ward; Shallcross, Andrew, painter, 625 Thirty-fifth street, Twenty-fourth ward; Stiles, William M., dyer, 502 Vine street, Twelfth ward; Subers, Daniel K., clerk, 603 Seventh street, Thirteenth ward.

The jury having been all sworn, the case was proceeded with as follows:

the opening for the commonwealth.

Mr. Warwick opened the case for the Commonwealth, as follows:

May it please the Court, gentlemen of the Jury: The defendant in this case, Sylvio Ferlan, is charged with an assault and battery on Hamilton Stewart. The facts in the case are simply these: Hamilton Stewart, a young boy, residing now in this city, who was upon a vessel, which was an Austrian bark, named the Ararat, that was lying at anchor at Hanover-street wharf, in this city, claims that he was beaten, bruised, and otherwise assaulted by the captain of the bark. The captain, Sylvio Ferlan, who is an Austrian, I believe, and who made the assault and battery on Hamilton Stewart, the cabin boy, is the defendant in this case. The boy is here to tell his story, and the defendant is also here before you, and that is all that is necessary for me to say in reference to this subject at the present time. I expect to show by the testimony of the boy that the captain of the bark is guilty of the charge which has been brought against him.

the testimony for the commonwealth.

Hamilton Stewart sworn and examined.

By Mr. Warwick:

Question. What is your name?—Answer. Hamilton Stewart.

Q. Where do you live?—A. Belfast, Ireland.

Q. What is your business?—A. Brass moulder.

Q. Do you know Sylvio Ferlan?—A. Yes, sir.

Q. Where did you first meet him?—A. In Belfast.

Q. What is his business?—A. Captain.

[Page 18]

Q. Captain of what kind of a vessel?—A. Captain of an Austrian hark.

Q. Did you enter the service of that bark?—A. Yes, sir.

Q. Where?—A. Belfast.

Q. When?—A. On Easter Monday.

Q. You entered that service in what capacity?—A. As cabin boy.

Q. Did you come from Belfast to this country on that bark?—A. Yes, sir.

Q. Direct from Belfast to Philadelphia?—A. Yes, sir.

Q. While you were lying in port, at Hanover street wharf, in this city, tell us what took place.—A. Because I did not come in at 6 o’clock in the morning, being about two minutes past my time, as soon as I got into the cabin he knocked me down, and beat me about the body, and kicked me, and afterwards he called me by name and told me to go ashore. I went ashore, and I then saw a boy on the wharf, and he told me to go to the consul. Then I went to the consul, and he kept me there three hours. Then I told him what had happened, and he told me to go on board of the ship. I went on board the ship in the morning; the boarding-master came down after me the next morning.

Q. Had you been boarding in the city?—A. Yes, sir.

Q. When did your bark arrive?—A. Monday, three weeks ago.

Q. That is, to-day three weeks ago?—A. Yes, sir.

Q. After that where did you live; on board of the bark or in the boarding-house?—A. I was there a week before this happened.

Q. Well, go on with your story.—A. The boarding-master saw the captain that night, and the captain said he would pay me off the next morning. I called on the consul, and he paid me off; he paid me $2.83.

Q. And you had the captain arrested for assault and battery?—A. Yes, sir.

Q. Were you injured much?—A. I could not get my breath for about five minutes.

Q. Were you bruised?—A. No, sir.

Q. Were you beaten about the body?—A. Yes, sir.

Q. What did he strike you with?—A. His fists.

Q. When you were down, did he kick yon?—A. Yes, sir.

Q. Where?—A. On the body here. [The withess placed his hands upon the abdomen and groin.]

Cross-examined by Mr. Gibbons, Jr.:

Q. You say that you shipped at Belfast?—A. Yes, sir.

Q. On a voyage to America and return to a European port?—A. On a voyage from Belfast and return to Belfast; a voyage from Belfast and return.

Q. That is, you shipped on a voyage from Belfast to this country to return to Belfast?—A. Yes, sir.

Q. This disturbance of which you speak occurred within the cabin of the bark, did it not?—A. Yes, sir.

Q. Was any other person present at the time, other than the captain and yourself?—A. No, sir.

Q. Did any other person hear the disturbance?—A. No, sir.

Q. How long after this happened was it that you went to the consul’s office?—A. It was half-past nine.

Q. Half-past nine on the same morning?—A. Yes, sir.

Q. What time did you leave your vessel to go to the consul’s office?—A. I left at half-past six.

Q. Did the master give you permission to go on shore?—A. Yes, sir; he told me to go on shore.

Q. When?—A. On Monday morning.

Q. When did he tell you to go ashore?—A. After he beat me.

Q. About the same time; that is, right after he beat you?—A. Yes, sir; at the same time.

Q. Who took you to the consul’s office?—A. I was shown the way.

Q. By whom?—A. By the people on the streets; I asked them.

Q. Who took you to the consul’s office?—A. I asked the way to it.

Q. Did any person take you there?—A. No, sir.

Q. You went alone?—A. Yes, sir.

Q. Did you see the consul?—A. Yes, sir.

Q. You laid your case before the consul, did you not?—A. Yes, sir.

Q. What did you say to the consul?—A. I told him how he had kicked me, beat me, and abused me.

Q. Did you say to the consul that the master of this bark kicked, beat, and abused you?—A. Yes, sir.

Q. Did you not say to the consul that the master simply boxed your ears?—A. No, sir.

Q. Do you mean to say by that that you did not say to the consul that the master simply boxed your ears?—A. No, sir; I did not.

[Page 19]

Q. You did not tell him that?—A. No, sir.

Q. Did not the consul say, at that time, that he would send for the master and examine into it?—A. No, sir.

Q. He did not say that?—A. No, sir.

Q. Are you sure of that?—A. Yes, sir.

Q. When were you next at the consulate?—A. The next morning.

Q. You went there to be discharged, did you not?—A. The boarding-house man said the captain was going to pay me the next morning—that was Tuesday morning.

Q. And then you went before the consul to receive your money ?—A. Yes, sir.

Q. And that was the next day?—A. Yes, sir.

Q. Who was the boarding-house master?—A. Mr. Kennedy.

Q. What was his first name?—A. It was Patrick, I believe; Mr. Patrick Kennedy.

Q. And after you were paid off, Patrick Kennedy advised you to issue a warrant for this captain, did he not?—A. No, sir.

Q. Who did advise you to issue a warrant?—A. Myself.

Q. Who took you to the magistrate’s office?—A. To issue the writ.

Q. But who took you there; what person was with you there?—A. Mr. Kennedy.

Q. Then you had a talk with Mr. Kennedy previous to the issuance of the warrant?—A. No, sir; I had not.

Q. Did you tell him what you wanted to go to the magistrate’s office for?—A. No, sir.

Q. But he went with you to the magistrate’s office, I understand you to say?—A. Yes, sir.

Q. What did you tell him you wanted to go to the magistrate’s office for?—A. I did not tell him anything. I asked him where was the magistrate’s office.

Q. And he took you down there?—A. He showed me the way to it.

Q. And he stayed there while the warrant was issuing, did he not?—A. Yes, sir.

Q. And was there at the time of the hearing of the case?—A. Yes, sir.

Q. And you have been under his charge ever since?—A. Yes, sir.

Q. You said that the captain knocked you down, and beat you, and kicked you?—A. Yes, sir.

Q. How did that happen?—A. Because I hadn’t coffee at six o’clock.

Q. When the captain found that you had not coffee at six o’clock, did he just come up to you and knock you down, or what did he do?—A. He hit me on the body and then knocked me down.

Q. Did he say anything to you?—A. No, sir.

Q. Did he tell you what he knocked you down for?—A. No, sir.

Q. You had no words with him?—A. No, sir.

Q. You signed the ship’s articles, did you not?—A. I signed my name, just.

Q. To the ship’s articles?—A. Yes, sir.

Q. And when this disturbance took place you were still a part of the ship’s crew? (Objected to by Mr. Warwick.)

A. I was still there.

Q. When this occurrence took place you were still part of the ship’s crew?

(Objected to by Mr. Warwick. Question withdrawn.)

Q. You were not discharged until after this disturbance took place?—A. I was told to go ashore.

Q. But that was afterward, was it not; that was after this disturbance occurred?—A. Yes, sir.

Q. On Tuesday morning, when you came to the consulate to receive your money, you signed a paper, did you not?—A. Yes, sir; I signed my name to it.

Q What was the paper?—A. I do not know what the paper was; but he told me to sign the paper—the consul did.

Q. Did he not explain what the paper was?—A. He did not.

Q. You can read and write, can you not? A. Yes, sir.

Mr. Warwick (to Mr. Gibbons, jr.). When was this?

Mr. Gibbons, Jr. On Tuesday morning.

(To the withess.) .This paper was signed at the time you were paid off, was it not?

The Withess. Yes, sir.

Mr. Warwick. That is, after this disturbance?

Mr. Gibbons, Jr. After this disturbance; on the following day.

Mr. Warwick. I do not see what connection this case has to do with anything that happened on the following day.

Mr. Gibbons, Jr. (Handing a paper to Mr. Warwick.) Do you want to see that?

Mr. Warwick. (After examining the paper.) I object to that.

Mr. Gibbons, Jr. I intend to hand that paper to the withess, for the purpose of identification at present.

(To the withess.) Look at that paper. [The paper shown the withess.] Is that the paper you signed?

The Withess. Yes, sir.

[Page 20]

Mr. Warwick. The commonwealth rests here.

Mr. Valentine. Of course the question as to the jurisdiction of this court might be raised by a demurrer to the evidence as this case now stands, and I think fully raised. I am, however, only mentioning this to your honor because, in case of necessity, I may want to raise that question, although I think it possible that that question can be avoided. I do not think that we ought to be called upon to meet a question if we can avoid it, and thus save both ourselves and your honor all trouble in relation to it.

Judge Finletter. I think the time to raise the question to which you allude would be in the defense.

Mr. Valentine. At the same time I have certain points which I desire to submit.

Judge Finletter. The proper time for you to submit them will be when you submit your defense, when you can ask me to rule upon them.

Mr. Valentine. That is what I mean. I only mentioned this matter because the question of jurisdiction under the treaty is a question which I thought might possibly be avoided, and I take it for granted that we should avoid any question which it is not necessary to raise.

Judge Finletter. That is all right; but we know nothing about the treaty now. That cannot be raised as a matter of cross-examination. It had better be introduced as matter of defense.

Mr. Valentine. I am not requesting your honor to take up the consideration of the treaty at the present time. 1 only refer to it as a matter of which your honor is bound to take notice.

Judge Finletter. I am only bound to know that there is such a treaty when you call my attention to it in some way. In other words, you must plead under the treaty. Your defense must be under it. You have a right to waive it, and the court may assume that the defendant has waived that right under the treaty, unless the attention of the court is called to it, and unless he specifically sets it out.

Mr. Valentine. I want to follow your honor’s suggestion; but I was under the impression that under the Constitution of the United States the treaty was a matter to which I ought to call your honor’s attention, just as I should call your honor’s attention to any law. Under the sixth article of the Constitution of the United States your honor is not a judge whose duty it is to administer the law, according to the State of Pennsylvania, in a case like this, but the treaty to which I have referred becomes the supreme law of the land, expressly binding upon your honor.

Judge Finletter. But I am not compelled to take notice of the treaty until it is properly put in evidence before me. I cannot compel the defendant to raise that defense. It is for the defendant to raise that question and not for the court; and, until he does raise it himself, in some way, I assume that he has waived that defense.

Mr. Valentine. By raising it, I mean simply to call your honor’s attention to it. A treaty of the United States is something which your honor is as much bound to take notice of as of the laws of the United States.

Mr. Warwick (to Mr. Valentine). Do you raise it now as a defense?

Mr. Valentine. I was just calling the attention of the court to the suggestion of the treaty, and perhaps looking for an intimation from his honor as to whether I had better raise it. I do not want to raise it now, unless his honor desires to have it raised in this way, because if this defendant can be acquitted under the evidence, as we have not the slightest doubt he can be and will be, then I do not want to go into that question at all. In other words, I do not want to raise an unnecessary question, but prefer to economize time.

Judge Finletter. At present, it is not possible that the defendant could be acquitted as the case stands.

Mr. Valentine. As I desire to avoid any question under the treaty, I think we had better proceed to try this case under the evidence. I have prepared a few points in reference to the treaty, which I can afterwards submit to your honor; but I will raise that question at a future stage in this proceeding.

Judge Finletter. You cannot raise any point until it is presented.

Mr. Valentine. I think I really ought to refer your honor to the very words of the sixth article of the Constitution of the United States.

Judge Finletter. If you will allow me to suggest it, I think the easiest way to try this case is to open your defense, that, first of all, no assault and battery was committed, and in the second place, if there was a case of assault and battery made out, then, under this treaty between the two countries, this court has no jurisdiction.

Mr. Valentine. I have points that present that question, as I have already intimated.

Judge Finletter. But your points must be based upon evidence, and I have no evidence before me in relation to the treaty. Do you wish to present evidence in reference to it now?

Mr. Valentine. I do not want to do so, now. I only wanted to say to your honor that my view of this case is that it should be tried as any ordinary case would be, [Page 21] and then, afterward, to present these points which I have prepared, in order that your honor might then decide whether or not this case was within the treaty.

Judge Finletter. That is right.

Mr. Valentine. I agree with your honor. I see no reason why this case should not he tried as an ordinary case, reserving all questions that may come up hereafter for future consideration. I simply cite the language of the sixth article of the Constitution of the United States, which is: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”

the case for the defendant.

Mr. Gibbons, Jr., opened the case for the defendant as follows:

With submission to the court, gentlemen of the jury: The master of the bark Ararat, while lying in the port of Philadelphia, it is alleged by the prosecution, made an assault upon his cabin boy. The description of that assault you have heard given by the withess for the prosecution, who is the prosecutor himself. The defense proposes to call two withesses: first, the master himself, who will deny in toto the testimony of the prosecutor. The master of the bark will admit to having in the line of his duty boxed the ears of the boy; but as to any other assault, such as has been described, to knocking the boy down, or kicking him, he will most emphatically deny it. We will then produce Mr. Westergaard, the Austro-Hungarian consul at this port, before whom this boy appeared and laid his case, immediately after this assault is alleged to have been committed, and Mr. Westergaard will also deny the statements of this boy. The consul will prove to you that the lad came to him and simply told him that the master had boxed his ears, and nothing more; that, on that statement, Mr. Westergaard said he would send for the master and inquire into the cause of the trouble; that the master was sent for, but the boy, who was then in Mr. Westergaard’s office, was taken out of the office by the boarding-house runner, who had charge of him then and who has had charge of him from that time up to the present moment.

Showing these facts, our case, as far as the testimony is concerned, will be at an end, and we will ask for an acquittal, on the ground that no offense has been committed of which cognizance should be taken by yourselves.

the evidence for the defendant.

Sylvio Ferlan sworn and examined.

By Mr. Gibbons, Jr.:

Question. What is your name?—Answer. Sylvio Ferlan.

Q. You are master of the Austrian bark Ararat, are you not?—A. Yes, sir.

Q. And she is now lying within this port?—A. Yes, sir.

Q. I want you to speak slowly and as distinctly as you possibly can, and tell the court and jury what occurred on your bark at 6 o’clock in the morning, three weeks ago to-day, in reference to any difficulty you may have had with this boy. Speak slowly, distinctly, and loudly, so that we can hear and understand you.—A. From Sunday morning I was on my ship, and getting my meals every day, and ringing my bell for the boy to come down. I got up at half past 5, and was going, towards 6 o’clock in the morning, to ring the bell for the boy to come down. Afterward I went on deck to see where the boy was. I asked the cook where the boy was, and the boy had gone out. The boatswain says, “Here the boy comes now,” and he comes in. I told him to bring me some water, and to clean my boots.

(Here Anthony Biaz was sworn as an interpreter and examined.)

By Mr. Warwick:

Question. How long have you been in this country?—Answer. About a year.

Q. Do you thoroughly understand the English tongue, so as to be able to translate it from the Austrian into our language?—A. Yes, sir.

Q. Does the withess speak Austrian or Italian?—A. No, sir; his tongue is Sclavonian; he speaks Italian, too.

Q. Have you any interest in this case?—A. No, sir.

Q. Do you know the captain?—A. Yes, sir.

Q. Who brought you into court to-day?—A. I am in the office of the agents of the vessel.

[Page 22]

Examination of Sylvio Ferlan resumed (the same being interpreted by Mr. Anthony Biaz).

By Mr. Gibbons, Jr.:

Q. Narrate, as briefly as you can, what occurred on board of your bark two weeks ago at 6 o’clock in the morning in reference to any difficulty you had with your cabin boy.—A. I got up, on board, along about half-past 5. As usual, I rang the bell for the boy. The boy did not come, and I went on deck and asked, “Where is the boy?” The cook said the boy would not come down. After a while the boy came down, and I told the boy to bring me some water to wash my face and hands, and to black my boots. I asked the boy, “Why didn’t you come down and do your work?” and at the same time I slapped him over the mouth, and told him to go to hell. I went away, and when I came back I did not find the boy on board. The boy had gone ashore.

Q. Did you knock the boy down?—A. No, sir.

Q. Did you kick him?—A. No, sir; I simply slapped him in his face.

Q. How many times did you slap him in the face?—A. Two times.

Q. Did you do anything else to him?—A. No, sir.

Q. Did you hurt him?—A. No, sir.

Q. Did you drive him ashore?—A. No, sir. I growled at the boy, because he did not do his work; but I did not drive him ashore.

Q. Your vessel is an Austrian vessel?—A. Yes, sir.

Q. And this boy signed articles at Belfast?—A. Yes, sir.

Q. (A paper handed the withess.) What is that document?—A. That is the crew list.

Q. Did the cabin boy sign that list?

(Objected to by Mr. Warwick.)

A. Yes, sir.

Q Are those the articles that the boy signed?—A. Yes, sir.

Q. He says he shipped in Belfast, to return to Belfast; is that so?—A. He shipped in Belfast to return to some place in Europe.

Q. And he was discharged here in Philadelphia?—A. Yes, sir; by mutual consent.

Cross-examined by Mr. Warwick:

Q. This is the book in which Hamilton Stewart appears as a cabin boy, and shipped in Belfast to take a voyage from the port of Belfast to the United States, and to return to some port in Europe?—A. Yes, sir.

Q. How much was he to receive?—A. One pound a month.

Q. And you say that he was discharged here, in Philadelphia, by mutual consent?—A. Yes, sir.

Q. Did not you drive him from the bark and send him off?—A. No, sir.

Q. When you told him to go to hell, did not you tell him to go ashore?—A. Not that morning; no, sir.

Q. Did not you discharge him?—A. I told the boy, “If you don’t want to work, you can go to hell.”

Q. Then you told him to go away, did you not; you told him to leave the bark; to go off?—A. No, sir.

Q. When a man signs articles with you, say, for instance, in Belfast, to go from Belfast to Philadelphia, and then to be returned to some European port, do you allow that man to go, without objection, after you reach this port?—A. No, sir.

Q. Do you let your men go from your vessel without any let or hindrance; do you allow your sailors and cabin boys to go from your vessel after you reach port?—A. No, sir.

Q. Then when you told this cabin boy to go to hell, did not you send him ashore?— A. No, sir.

Q. Did you see him go from the boat to the shore?—A. No, sir; I went down into the cabin.

Q. Did you see the boy leave?—A. No, sir; the mate told me that the boy had gone.

Q. Did you kick this boy?—A. I slapped him over the mouth.

Q. Did you box him over the ears and over the mouth?—A. Over the face.

Q. Did you knock him down?—A. No, sir.

Q. Did you kick him?—A. No, sir.

Q. Did you strike him about the body?—A. No, sir.

Q. Why did you strike him over the face or about the ears?—A. I did not find any water in the cabin, and I was very angry that he did not leave any water in the cabin.

Q. What time did you get up that morning?—A. Half past five.

Q. What time was it usual to have the boy bring the water?—A. Any time; half past five, six, or seven; but that is not the question. I asked him to bring it that morning, and he did not bring it.

[Page 23]

Q. And then, when he came down stairs, you slapped him in the face?—A. Yes, sir.

Q. It was your agreement with him to carry him back to Belfast or some port in Europe?—A. Yes, sir.

Q. And not to leave him in Philadelphia, or some port in this country?—A. Yes, sir.

Q. And you left him go in Philadelphia?—A. Yes, sir.

Lars Westergaard sworn and examined.

By Mr. Gibbons, Jr.:

Question. You are the Austro-Hungarian consul at this port, I believe?—Answer, Yes, sir.

Q. Will you please narrate what occurred at the consulate on the first visit of the prosecutor in this case?—A. On Monday, May 14, the boy you have seen here came to me and stated that he belonged to an Austrian vessel in this port under Captain Ferlan. I told him to wait a moment until I could produce the crew list. I produced that, and I then inquired of him what the matter was. I asked him his name and his age. He said he was a cabin boy who had shipped in Belfast; that his name was Hamilton Stewart; and that he had shipped to come in this vessel to Philadelphia. I found that he had shipped to return from the United States to a port in Europe. I asked him if he had shipped to go home on the bark, and he said “Yes.” I asked him what he wanted, and he said that he had demanded to be put off. I told him he could not demand to be put off, and that he could not be discharged other than by mutual consent between him and the captain. He then said that on that morning the captain had beaten him. I asked him what that beating consisted of, and he said the captain had slapped his face and boxed his ears. I asked him if he could show on his body where he had been bruised, or where he had suffered ill-treatment, and he said “No.” I told the boy to remain, and that I would send for the captain; but, strange to say, the boy did not remain. He was in company with a runner. The runner beckoned to him, or stepped over to him and told him something. I told the runner that if the boy had come to me for protection I would give it to him fully and fairly; but, strange to say, the runner had more influence over that boy than I, as consul, and the boy ran away. I sent for the captain, and the captain came, and I told him what the boy had said, that he had slapped the lad’s face and-boxed his ears; and the captain said that the boy had not only been insubordinate, but had refused, point blank, to do his duty.

Q. Did the boy, at this first interview, tell you that the captain had kicked him?—A. He never told me anything of the kind.

Q. He says he did; is that true or false?—A. It is false.

Q. What did he tell you?—A. Simply this: When I said to him, “Where and when did this occur?” he said, “This morning, in the cabin, when we were alone.” I said, “What did the captain do?” He said, “He slapped me in the face and boxed my ears.” Never did he open his mouth about the captain’s having kicked him or knocked him down. He never opened his mouth to me on that point.

Q. And the next day you paid him off?—A. Yes, sir; the next day.

Cross-examined by Mr. Warwick:

Q. When the boy came to you, did not he complain of being injured?—A. No, sir; he did not.

Q. Did not he say he had been hurt in the body?—A. No, sir; he did not.

Q. Is it customary for a cabin boy to complain of a box over the ear?—A. It is very customary for a boy, or a man, employed on a vessel to find some cause of complaint in order to be paid off, so as to make a new contract, and get the high rate of wages ruling here.

Q. Did this boy tell you he had been ordered off the vessel, and had been told by this man to get off and go to hell?—A. On the contrary, I asked the boy if he had got permission to leave the vessel, which is the first question which is to be asked of a sailor who comes to see a consul. No captain can deny a sailor the privilege of going ashore at a proper time, but, at the same time, the captain must give any individual the permission to go to the consul. I asked the boy if he had had permission to go ashore.

Q. Well, what did the boy say?—A. The boy said he had not had permission.

Q. Did not he say he had been driven off of the vessel?—A. No, sir; he did not. The language he mentioned here to-day he never used to me. I never heard those words.

Q. Did not the boy complain of having been injured, or having been kicked, or having been beaten?—A. No, sir; he did not.

Q. Why did he come to you and ask your assistance if he had not been beaten, and had only been boxed over the ears?—A. He said he did not want to remain on that vessel; that he could not get along with the captain.

[Page 24]

By Mr. Gibbons, Jr.:

Q. I understand you to say that it is a very common thing for foreigners coming to this port from foreign ports, who have contracted to return to another foreign port, to endeavor to be discharged from the vessel on which they are, for the purpose of obtaining an advance in their wages?—A. Yes, sir; that is a question we are constantly called upon to meet in our experience with men on foreign vessels.

By Mr. Warwick:

Q. Did the boy tell you he had been beaten or had been hit?—A. I distinctly asked him the word “beaten,” and he said the captain had struck him in the face. He never stated to me that he had suffered any bodily harm, or that his body had been bruised, or that he had suffered any damage.

Q. Did the boy say he had been beaten in the face?—A. I think he used the word “slapped.”

Q. Were there any bruises on his face?—A. There certainly were none.

Q. No appearance of bruises, or of old blood?—A. There was no blood on him then, any more than there was to-day; there was not a spot.

Q. Were you cross with this boy when he came in?—A. No, sir. I think I am too well known in this community to render such a question necessary. I am not a cross-tempered man.

Q. Answer the question. Were you cross to this boy?—A. Do not misconstrue my emphasis. I was not cross to him, by any means. On the contrary, I was very kind to him. When I said to him, as consul, to remain in the office and I would investigate his case, he said “ No.” There was one with him who had more influence with him than I had, and who took him away.

Mr. Gibbons, Jr. That is the case for the defendant.

Mr. Warwick. I would like to call the boy and ask him one or two questions. (To Hamilton Stewart.) When you went to the consul, did you get any satisfaction from the consul?

Mr. Gibbons, Jr. I object to that. That has all been gone into before.

Judge Finletter. Yes. That question cannot be reopened now.

Mr. Warwick (to Hamilton Stewart). Did you tell the consul that you had been beaten in the face?

Mr. Gibbons, Jr. I object to that.

Judge Finletter. That question cannot be asked now.

Mr. Warwick (to the court). Shall we go to the jury, or leave it on your honor’s charge?

Mr. Valentine. I suppose it is not necessary to go into any other question but the question of the assault; but I would like an intimation from your honor and from the prosecuting attorney in reference to that.

Judge Finletter. If the question is raised, I shall undoubtedly charge that the treaty does not apply to crimes or misdemeanors committed in the port of Philadelphia. Again, I shall charge specifically that the captain of a vessel is absolute on board of his vessel, is entitled to absolute obedience, and may enforce that obedience by reasonable force or imprisonment, so that the only question the jury will have to determine here is whether the force used upon that occasion was reasonable or not.

Mr. Valentine. My thought was that it was possible, under the evidence as to the character of the transaction, that your honor and the prosecuting attorney might think there was no case to go to the jury.

Judge Finletter. That is for the district attorney to decide.

Mr. Warwick. I think the case should go to the jury.

Mr. Valentine. Then I will hand to your honor my points in reference to the question of jurisdiction, so that your honor can reply to them, in case you think it necessary to charge the jury.

(Here Mr. Valentine handed his points to the court.)

argument of charles f. warwick, esq.

Mr. Warwick then addressed the jury as follows:

With submission to your honor, gentlemen of the jury: This is a question which has assumed some importance, simply because it has been said that the jurisdiction of the State of Pennsylvania did not attach to a case of this kind. However, with that point of law you have nothing to do. If an assault and battery was committed on that cabin boy by the captain of the vessel, and the captain of the vessel went beyond his authority in that respect, and if the captain beat or abused that boy, under the law of this commonwealth and in this jurisdiction, he can be convicted of that offense. That is unquestionable; and if an assault and battery has been made out to your satisfaction in this case, the captain of this bark Ararat, Sylvio Ferlan, can be convicted of the offense.

[Page 25]

Therefore the only question for us to consider is whether there has been an offense committed, as we understand it, under our laws. An assault and battery is a blow struck with the open hand, or the fist, or an instrument, or an implement of any kind, character, or description, if it be pointed at or if it be lifted against a person. If there be a stroke, if there be but the touching of the body, with the intention to do bodily harm, then the assault and battery is made out, and the crime is complete, and conviction can be had.

This case, however, differs from most other cases. If I were to seize a boy in the street and box his ears, that would be an assault and battery: but it is a very well-known fact that on a vessel it is entirely different, while upon the water. The rules and the regulations governing a vessel give more power to the officers of a vessel than an officer would have upon dry land. Again, it has been held that the deck of a vessel is the territory of the land whence she comes, and that an American vessel upon the high seas, with her flag flying at the topmast, is a part of the territory of the United States, as far as her deck is concerned, and if a stranger dare to put his foot upon that territory he touches our soil. A child born under that flag, upon a vessel of the United States, is born upon American soil, and is a native of this country, just the same as you or I, or a babe that is brought forth here upon our native land. When the vessel is at sea, when the crew are under the control of the captain, the captain has more power to preserve order and discipline than he, as a private citizen or individual, could have upon the land. And that is absolutely necessary. And why? Because the captain is the supreme officer, and he has charge of everybody who is upon his vessel. Order must be had; discipline must be secured; and if his orders are broken or the discipline be violated the vessel might not reach port safely and very great damage might be done. If a captain on board of a vessel slaps the ears of a cabin boy in order to maintain order or to secure discipline, he cannot be convicted under this bill of indictment for assault and battery. His power is arbitrary. His power is absolute as captain of that vessel. He is the ruler, and he has the right to exercise proper authority to maintain discipline and to preserve order. But he has no right, under any circumstances, to beat or abuse his men or to go beyond that mark where discipline is secured. If a boy refuses to go down stairs when the captain calls him and the captain boxes his ears, that is sufficient; but if a boy refuses to .bring coffee, and the captain knocks him down, kicks him, and beats him about his body, then the captain goes beyond his authority, and for that he is amenable to the laws of the land, and he comes within the jurisdiction of this court, and he is liable to conviction, just the same as any other man is. His case is just the same as the case of a man who comes into your house and invades your premises. You can order that man out of your house, and if he does not leave you can use any reasonable and necessary force to put him out; but you cannot take a club and beat him over the head with it. You must use mild measures, with just sufficient force necessary to eject him from your house. Therefore a captain is to be held responsible to the laws of this commonwealth if he goes beyond his power as an officer of a vessel. If, after discipline is secured, he resorts to measures that are extreme, and he beats or abuses any one of his crew, without need, or if he kicks or knocks down any one upon his vessel, he is to be held responsible to the tribunals of this State, if the offense is committed while the vessel is lying in this port.

What are the facts in this case? The boy swears positively that he shipped at Belfast, and came to this country to be carried back to some port in Europe, where the vessel should be discharged of her return cargo; that, while lying in this port, the captain had given him permission the night before to go off the vessel; that he came back the next morning but little later than usual, and the captain was angry because his coffee was not brought to him at the proper time; and that without further ado, the captain knocked him down, kicked him, and beat him about the body. If that was done, the captain exceeded his authority, and for that he is responsible.

Let us see if he did that. He had the right as captain to enforce order and preserve discipline on board his vessel, the same as a father has the right to enforce order and preserve discipline in his own family. The testimony is that the captain was down stairs in the cabin, and that he came up stairs and asked where the cabin boy was, and why he was not there to bring water with which the captain could wash his face and hands, and also why the boy was not there to black his boots. Just about that time the cabin boy came on board the vessel, and the captain says he told him to perform his duty, and that the cabin boy refused, and that then he boxed the boy’s ears, slapped him about the jowls, in the way you have heard described, and told him to go to hell. I do not know whether the captain meant that the boy should understand that by hell he meant the land, but, at any rate, the boy understood him to mean that he must go on shore, and the boy left the vessel and went to the consulate and met Mr. Westergaard, who had an investigation of this matter, and subsequently the boy got his wages.

The testimony of the boy is that the captain knocked him down, beat him, and struck him on the body. The testimony on the other side is that the captain merely [Page 26] struck him in the face; that he did not strike him about the body; that he did not knock him down; that he growled at him; and Mr. Westergaard, the consul, then comes forward and says that when the boy came to him to lodge his complaint, he simply said he had been smacked about the face or the ears, and did not say he had been beaten, or kicked, or bruised about the body. Thus you have the testimony of the captain, who was there, the testimony of the boy, who was there, and the testimony of Mr. Westergaard, who is this consul at this port representing Austria and Hungary.

That is this case. The boy swears that he was beaten; but I am compelled to say that he had no bruises to show, and there has been no attempt made to show that there were marks upon his body, or that there were blood stains upon his person. Mr. Westergaard says that the boy only mentioned the blow in the face, and made no reference to bruises upon his body; but you must bear in mind, in reference to that, that the boy says he did tell Mr. Westergaard that he was beaten about the body, kicked, and knocked down by the captain. It is for you to weigh the testimony, as you are the judges of the facts, and to base your verdict upon your judgment in reference thereto.

That is all I think necessary to say to you in reference to this matter. In all cases that are tried in this court we try them according to the evidence and the weight of the evidence. Therefore, if the weight of the evidence in this case convinces you that the boy was not beaten, but only slapped in the mouth, the captain must be acquitted. If the weight of the testimony shows you that the boy was beaten, kicked, and knocked down by the captain, then the captain is amenable to our laws, and must be convicted.

Mr. Gibbons, Jr. The remarks of my friend, Mr. Warwick, have been so fair and so just that I have nothing to say on behalf of the defendant.

the charge of the court.

Judge Finletter then proceeded to charge the jury, as follows:

Gentlemen of the Jury: It appears from the testimony that the defendant in this case is charged with an assault and battery upon this cabin boy, the defendant being the captain of the Austrian bark Ararat, and who, at the time when the alleged assault and battery was committed, was on board his own vessel. It is proper that I should say to you that the captain of a ship, or of any vessel, has absolute control over every person on board that vessel. He has also the right to make all the rules and regulations which he may think proper for the government of that vessel and for the control of those who may be on board, whether they be there as crew or passengers; and he has the right, above all things, to absolute obedience on the part of any of the crew or any of the persons who are there under his command and direction. He has also the right to enforce all his rules by violence, by chastisement, or by imprisonment. In addition to this, he has precisely the same rights on board his vessel that a father has over his family, or the head of a house has over the inmates of his house. A captain is therefore responsible to the law only for unnecessary or excessive force or violence.

It is proper that I should say to you that these rights which belong to the captain at sea, and which are absolutely necessary at sea, remain in him even while the vessel is in port. It makes no difference that the vessel is in port, moored to the land, or whether she be on the high seas—the authority and right of the captain remain the same, and whatever may be necessary on the high seas he has a right to enforce while the vessel is moored to the dock at any particular place. And the reason of it is this: Usually the crew is shipped for the return voyage, as in this case the cabin boy was shipped for a voyage to Philadelphia and return to some European port; and, if the law, or custom, or anything else, required the captain to relax his absolute control over his vessel and over the men who are in it whilst he is in port, there would Ife no such thing as obedience when he would again put to sea; and, therefore, it is not only law, but it is good common sense, that he should have the same rights over his crew in port as when they are at sea.

Whilst, however, the captain has this absolute power and control, he has only the right to enforce that power, that authority, that obedience, by reasonable rules and commands. In other words, his commands, his directions and rules must be reasonable. He has no more right to ask, at sea or while in port, one of his crew to do an unreasonable thing, and has no more right to ask that an unreasonable or unnecessary command should be obeyed, than any other person has the right to make an unnecessary and unreasonable demand anywhere else. But in all cases of this character, and especially on board a vessel, the force which may be used cannot be said to be unreasonable if, under all the circumstances, such become necessary to enforce obedience and control and direction of the vessel. If it be necessary for that purpose, [Page 27] the captain has a right to proceed to any length that he may deem proper which will be warranted or required by the necessities of the case.

In considering the force that maybe used, and in considering its character, the jury should recollect that at all times the safety of the vessel and the lives of all on board may depend entirely upon the obedience which the crew give to their lawful commander, and may also depend upon the rules and regulations which the captain may have made; nor should the jury forget that force on board a vessel may be absolutely necessary to compel obedience. In considering this aspect of the case, it is proper also that the jury should recollect and understand the character of the people with whom a captain has to deal. They are sometimes of all nations. They are a people, to a certain extent, who are not controlled or who are not in a position to be controlled by the laws and regulations which control society, but whose whole life is controlled by ideas which they arrive at in their wanderings and which they pick up on board a vessel. It is not saying too much to say of sailors that they must be governed by a strong hand. The necessity of the case requires it, and although captains sometimes make use of that necessity to violate the rights of the sailor, still it does not follow that a rule is necessarily severe because it may sometimes be violated by inhuman captains.

The jury should also recollect that a captain on board a vessel is not protected by law. The laws of the United States do not reach the deck of a vessel. The laws of England cannot follow the English captain and protect him; and, therefore, under the circumstances, he must be, from the necessities of the case, both a law to himself and a law to those who are on board his vessel.

The jury would readily understand, from what I have said, that force at sea, either to punish neglect of orders or to enforce obedience, may be an entirely different thing from that upon land. That at sea may be absolutely necessary which would not be on land. Violence may be absolutely necessary at sea, which on shore might be considered barbarous under certain circumstances. Therefore, in arriving at any conclusion upon the course pursued in this particular case, the jury are necessarily compelled to consider all these questions; and they resolve themselves into this: Whatever may be necessary for the protection and government of a vessel at sea must be necessary and right when considered by a jury, although the jury may not see the full and absolute importance of those rules.

Of course what I have said applies to adults, but when you come to consider the case of a cabin boy, the right of a captain is perhaps of higher authority than if the case of a mere adult was considered, because the captain necessarily not only stands in the relation of a captain to the cabin boy, but he stands in the relation of a father; is responsible for the government of that boy; responsible for his obedience; responsible for his being trained in an orderly and proper manner whilst he is on board his vessel; and therefore, in addition to the right of the captain, he has all the rights of a father, and whatever a father on shore might do to his son the captain might do to a cabin boy at sea, particularly to a boy of tender years, such as this prosecutor is.

I presume that no one will question the right of a father to use reasonable force in chastising his children. The father alone is responsible for the rules and regulations by which he chooses to govern his household, and the father is not responsible for chastising his children in any way he thinks proper for disobedience or neglect of duty, unless he chastises them in an unreasonable, unnecessary, and cruel manner. I have no hesitation in saying that if the captain of this vessel treated the boy in the manner in which the boy has sworn to on the stand, that the force was wholly unreasonable because it was wholly unnecessary. If, however, he treated him only as the captain himself has said, I think no reasonable man would say that boxing the ears of a cabin boy for not obeying a regulation of the cabin or of the vessel was the use of unreasonable force. Indeed, it was exactly what a father might have done under the same circumstances, and what the captain had a right to do if bethought it was necessary for him to enforce obedience on the part of the cabin boy.

There is a conflict of testimony, a positive and direct conflict, between the testimony of the captain, the defendant, and the testimony of the boy. The boy is not corroborated. Neither the captain or the boy could be corroborated by the testimony of a withess, because there was no person present; but if the boy was used as he says he was here, there certainly ought to have been upon him bruises or scratches, or some indication of the violence which he says the captain on that occasion used upon his body. He could not have been treated as he says he was treated by the captain unless there were bruises of some kind upon some part of his body, and it is for you to say whether it is at all reasonable, if there had been some indication of that kind, that he would not have shown the consul his bruises, or shown them to the friend who took him to the magistrate’s office, or shown them to the magistrate before whom he made his complaint. There is no evidence to show that he did so to either of these persons. On the other hand, the captain is corroborated to a certain extent by the consul, because the consul says that the boy made no complaint of the kicking or the beating such as he narrated on the stand here, but that all he complained of was that the captain boxed his ears because he was two or three minutes late.

[Page 28]

Of course, in this case, the consul is a perfectly disinterested party. Indeed, he ought to be, from the position he holds, interested for the sailor and for the cabin boy, because we all know that in all cases of violence or injustice which may be suffered by a seaman from the captain, the only protection the seaman may have, wherever he may be, in any portion of the world, is the consul of the country under whose flag that captain sailed. There is nothing in this case to show that the consul has any interest in it, and from the nature of the case, and from the well-known character of the man himself, we have no reason to think he has not told the truth.

Therefore, under all the circumstances of the case, it is for you to say which, of the two you will believe, whether the cabin boy or the captain. As I have already said, the boy is not corroborated, and the captain is, to a certain extent. It is, however, a matter entirely for you. It is for you to say which of the two you will believe. If your believe the boy, it is your duty to convict the captain; if you believe the captain to have told the truth about this matter, then it is your duty to acquit him. That is all I have to say to you on the subject.

Mr. Valentine. Your honor has not answered my points.

Judge Finletter. I have refused the points. I do not think it necessary to read them.

Mr. Valentine. Will your honor kindly note an exception to your ruling in that respect?

Judge Finletter. I have noted an exception, generally, to the refusal of the points.

The points presented by Mr. Valentine, and refused by the court, were as follows:

Commonwealth of Pennsylvania }
Sylvio Ferlan.

defendant’s points.

“1. That as the bark Ararat, on board of which the alleged assault was committed, was, according to the evidence, at that time an Austrian vessel, lying in the port of Philadelphia, and the alleged assault was committed by the captain on one of the crew of said vessel, that the case had been heard and disposed of by the Austrian consul at the said port, and neither of said persons were American citizens, and the said alleged assault was not a difference of a nature to disturb the peace and public order in port or on shore; therefore, as a matter of law, under the treaty between the United States and the Empire of Austria, dated the 11th day of July, 1870, this court has no jurisdiction of the alleged offense, and you should find the defendant not guilty.”

Refused. Ex.

T. K. Finletter.

“2. That the differences on board this bark were not of a nature to disturb the peace and public order, in port or on shore, and that this court, under the treaty between the United States and the Empire of Austria, dated the 11th day of July, 1870, has no jurisdiction of the offense, and that therefore you should render a verdict of not guilty.”

Refused. Ex.

T. K. Finletter.

“3. That under the treaty between the United States and Austria, dated July 11’ 1870, this court has no jurisdiction, under the facts in this case, and therefore you should find the defendant not guilty.”

Refused. Ex.

T. K. Finletter.

At the conclusion of the charge of the court, the jury, without leaving the box, rendered a verdict of not guilty.