No. 17.
Mr. Davis to Count Weissenfeld.

Count: I have the honor to acknowledge the receipt of your note of the 7th instant, in further relation to thecase of Capt. Sylvio Ferlan, [Page 29] of the Austrian bark Ararat, which has heretofore been the occasion of correspondence between your legation and the Department.

The stenographic report of the proceedings in the court of quarter sessions of Philadelphia in Captain Ferlan’s case (see ante) have been found so useful to an understanding of the points of international and municipal law involved that I have caused it to be printed for the use of the Department, and I have pleasure in sending you three copies as of probable convenience to you.

The difficulty in the case appears to have been that while Judge Finletter was ready to consider the application of the treaty to the charge before him, he found himself unable to decide the question of jurisdiction without having the facts on which consular jurisdiction was claimed under the treaty, as well as the pertinent provision of the treaty itself, brought before him as part of the defendant’s case, in regular manner, on actual trial. While I can appreciate the dilemma of a judge so situated, with a charge before him which is cognizable if substantiated and not cognizable if unsubstantiated, I am yet willing to admit that it seems contrary to the results which it is believed both Governments desired to attain by the treaty to require the question of competence of jurisdiction to be tried as a part of the case, and the treaty itself to operate only as an instrument of defense.

The papers in the case have been submitted to the Attorney-General of the United States, with an expression of the views of the Department, and consideration has been asked, to the end of assuring the execution of the intent of the treaty provision in question.

Accept, &c.,

Acting Secretary.