Mr. Hay to Baron von dem Bussche-Haddenhausen.
Washington, November 10, 1903.
Sir: Referring to Baron von Sternburg’s note of August 11 last, protesting against the intention of the United States commissioner at San Francisco, as recently announced by him, in future to examine into the question whether seamen brought before him by foreign consular officers charged with desertion are deserters, I have the honor, for your information, to quote the following from an opinion of the Attorney-General, to whom I referred the matter:
Section 5280 of the Revised Statutes, upon which the commissioner rests his contention, reads as follows:
“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 belonged at the time of desertion to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. 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 consul or vice-consul to be sent back to the dominions of any such government or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government.”
This section originated in an act of March 2, 1829 (4 Stats., 359), which, as amended by an act of February 24, 1855 (10 Stats., 614), was, with a few immaterial changes in punctuation, incorporated into the revision of 1874 as section 5280.
Article 14 of the consular convention of 1871 with Germany is in the following language:
“Consuls-general, consuls, vice-consuls, or consular agents may arrest the officers, sailors, and all other persons making part of the crews of ships of war or merchant vessels of their nation who may be guilty or be accused of having deserted said ships and vessels, for the purpose of sending them back on board or back to their country.
“To that end the consuls of Germany in the United States shall apply to either the Federal, State, or municipal courts or authorities; and the consuls of the United States in Germany shall apply to any of the competent authorities and make a request, in writing, for the deserters, supporting it by an official extract of the register of the vessel and the list of the crew, or by other official documents, to show that the men whom they claim belong to said crew. Upon such request alone thus supported, and without exaction of any oath from the consuls, the deserters (not being citizens of the country where the demand is made, either at the time of their shipping or of their arrival in the port) shall be given up to the consuls.”
It will be observed that section 5280 applies in cases in which the United States have treaties providing for the restoration of deserting seamen. When it was enacted, the United States had five treaties on the subject, all of them employing substantially the language relied upon by the ambassador. One of them was with Prussia. It can not, then, be doubted that this statute, which was for the very purpose of carrying out those treaties, was regarded as consistent with their terms. It was followed by a long series of similar treaties, repeating substantially the same language relied upon by the ambassador, and the latest treaties with Great Britain, Japan, and other countries provide for the return of the seamen in the manner prescribed by law. Thus, for three-quarters of a century this statute, which provides for an examination in addition to an inquiry into the question whether a man belongs to the [Page 417] crew of the vessel, has stood and been enforced upon the theory that it was consistent with our numerous treaties on the subject of the restoration of seamen.
This would seem to raise a presumption in favor of the harmony of the statute with the treaties, and of the acquiescence of numerous foreign governments in the construction placed upon the treaties by Congress.
The treaty with Germany is certainly not clearly opposed to such a construction. The first sentence of article 14 provides that consuls may arrest officers, sailors, etc., who may be guilty, or be accused of having deserted ships, for the purpose of sending them on board, or back to their country. The next paragraph provides for the delivery up to the consuls of “the deserters.”
The treaty thus makes a distinction between persons belonging to the crew and away from the vessel in this country who are deserters and such persons who are accused of desertion. It provides, not that those accused, but that “the deserters” shall be delivered up. The ambassador reads this differently and says that the word “deserters,” in the second paragraph, includes those accused of desertion. The first paragraph provides for arresting, the other for delivering up to the consuls. Hence, there may well have been a difference of treatment intended, and only “the deserters” may have been intended to be delivered up. If so, an inquiry to distinguish the deserters from members of the crew away from the ship and accused of desertion, would be necessary. This inquiry is provided for by the law which has stood so long upon our statute books.
But this statute and treaty provide a method whereby the judicial authorities may determine this question. According to either the consul may apply to the proper court. If it should be held by the court that the statute is obligatory, notwithstanding differences which may be held to exist between it and the treaty, which the ambassador regards, and is probably right in regarding as of later date than the statute, then it will be necessary to modify the statute.
In conclusion, the Attorney-General suggests that the question be fully presented by the German consul-general to the proper court. Mr. Knox has no doubt that should Baron von Sternberg’s contention be correct, the court will so decide.
The two original inclosures with the ambassador’s note will be returned to you in a few days.
Accept, etc.,