No. 400.
Mr. Bayard to Mr. Ferrara.
Washington , January 10, 1887.
Sir: Your memorial of the 4th instant, stating that Judge Speer, of the United States district court for the southern district of Georgia, had delivered an opinion contrary to the terms of the treaty between the United States and Italy, of the 8th of May, 1878, and suggesting that the opinion of the court should be properly corrected in order to prevent any unlawful interpretation of the treaty above mentioned, has been read by the Department.
It appears from the papers accompanying your memorial that a sailor on an Italian vessel in the port of Savannah, Ga., swore out a warrant before a justice of the peace of that city against the captain of the vessel for an assault committed on board thereof.
The captain refused to recognize the warrant on the ground that the justice of the peace had no jurisdiction in the premises, whereupon that magistrate called upon the clerk of the United States district court to issue a warrant of arrest under sections 4546 and 4547 of the Revised Statutes. This the clerk refused to do because of the provisions of the treaty of 1878, and the justice of the peace then applied to the United States district judge for a rule against the clerk to show cause why the warrant should not be issued. When this application was heard, the judge discharged the rule on the ground that in the view of the provisions of Article XI of the treaty above mentioned the justice of the peace had no jurisdiction of the case, as it was within the exclusive jurisdiction of the Italian consul.
From this review of the facts it appears that jurisdiction of the consul under the treaty was fully sustained by the district court, and this decision brought the dispute to an end.
The ground, however, of your memorial is, that Judge Speer, in the course of his decision, expressed an opinion—which you do not regard as correct—that in a certain supposititious case the jurisdiction of the Italian consul might not have been exclusive. You suggest that this opinion should be corrected.
It has already been observed that the case in which this opinion was expressed has been brought to an end by a decision in the consul’s favor of the only question at issue, and it would, therefore, be immaterial [Page 647] to discuss an opinion that may have been intimated on a question not decided.
But were the case otherwise, this Department would have no authority to revise or correct the court’s opinion, or in any way interfere with the judicial proceedings. Under the Constitution of the United States the judicial and executive functions are distinct, and are vested in separate departments of Government, and in judicial cases involving treaty questions provision has been made by Congress for an appeal from inferior courts to the Supreme Court of the United States, where persons are held in custody in violation of a treaty, or where a decision adverse thereto has been rendered.
In this connection I may refer you to correspondence published on pages 9–31 of the volume of Foreign Relations for 1883.
Accept, etc.,