Office of the Historian

No. 19.
Mr. Frelinghuysen to Baron Schaeffer.

Department of State,
Washington, November 13, 1883.

Baron: I have the honor to acknowledge the receipt of your note of the 9th instant, in relation to the cases of the captains of the Hungarian merchant vessels Ararat and Mimi P., in which you request, on behalf of your Government, to be put in possession of the views of the Government of the United States on the question of local jurisdiction involved in the case referred to.

I inclose herewith a copy of an opinion of the Attorney-General of the 9th July last, in response to the request I made of that functionary on the 27th of June of the same year, and of which I had the honor to inform Count Lippe-Weissenfeld.

Your contention rests on the eleventh article of the consular convention concluded between the United States and the Austro-Hungarian monarchy on the 11th July, 1870. The article referred to is in the following words, namely:

Consuls, vice-consuls, or consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation. They shall have, therefore, the exclusive power to take cognizance of and to settle all differences which may arise at sea or in port between captains, officers, and crew in reference to wages and the execution of mutual contracts, subject in each case to the laws of their own nation.

The local authorities shall in no way interfere, except in cases where the differences on board ship are of a nature to disturb the peace and public order in port or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance. Except as aforesaid, the local authorities shall confine themselves to the rendering of forcible assistance if required by the consuls, vice-consuls, or consula agents, and shall cause the arrest, temporary imprisonment, and removal on board his own vessel of every person whose name is found on the muster rolls or register of the ship or list of the crew.

I find no difficulty in agreeing with your statement, that by the general principles of international law private or merchant vessels entering the ports of another nation than their own are subject to the local jurisdiction; and I also recognize at once the convenience and desirability of the rule you suggest as that adopted by France, and followed by some other nations, that local courts should decline to take jurisdiction of cases involving acts of mere interior discipline of the vessel. Such, indeed, has been the course recommended by the executive branch of this Government to the courts, and it gives me pleasure to be able to add that both the Federal and State courts have as a general rule conformed their proceedings in such cases to that suggestion. These tribunals, however, are bound under the Constitution and laws of the United States to entertain every complaint in which is presented a prima facie case of violation of the local laws, and it consequently becomes necessary in such cases that the judge should hear the evidence before he is able to determine whether the case is one of mere discipline connected with the ship, or whether it is of such a nature as to [Page 31] involve a disturbance of the public order in port or on shore; and bound by the same constitutional and statutory provisions the Executive branch of the Government must refrain from all interference with the judicial tribunals in regard to cases or questions that may be pending before such tribunals. No doubt is entertained, however, but that the declarations of the courts will always be had, and their decisions be always rendered with a due regard for the obligations of the Government under its treaty stipulations with foreign powers.

The President, I need scarcely add, will ever deem it his duty to give full effect, in spirit and in letter, to the provisions of the convention of July, 1870, between this Government and that of Austria Hungary, which you so worthily represent.

Accept, &c.,

FRED’K T. FRELINGHUYSEN.
[Inclosure.]

Mr. Brewster to Mr. Frelinghuysen.

Department of Justice,
Washington, July 9, 1883.

Sir: Your communication of the 27th ultimo has received my consideration.

The judges of the State courts are sworn to support the Constitution of the United States, and it is consequently their duty to give effect to all valid laws and treaties of the United States, because the Constitution expressly provides that they, as well as the Constitution itself, “shall be the supreme law of the land.”

To compel the performance of this constitutional duty by the State courts there is but one way known to the law, and that is by writ of error from the Supreme Court of the United States.

But in cases such as the one presented in the record accompanying your communication, being cases pending in courts of general criminal jurisdiction, the question of jurisdiction should, as a general rule, be raised by plea, and not under the general issue.

This, I conceive, disposes of the question submitted.

I have, &c.,

BENJAMIN HARRIS BREWSTER,
Attorney-General.