In re Wildenhus

Decision Date09 November 1886
Citation28 F. 924
PartiesIn re WILDENHUS and others.
CourtU.S. District Court — District of New Jersey

Coudert Bros., for petitioner.

Charles H. Winfield and William Y. Johnson, Asst. Atty. Gen., for the State.

WALES J.

This writ was directed to the keeper of the jail of Hudson county New Jersey, on the petition of Charles Mali, Belgian consul for the states of New York and New Jersey, in order to obtain the discharge and surrender of Joseph Wildenhus, who is charged with the crime of murder, and of two other persons who are detained, in default of bail, as witnesses for the state. Copies of the warrants of commitment, which are in regular form, are annexed to the return to the writ, and from these, and the statements in the petition, it appears that on the sixth of October of the present year, while the Belgian steam-ship Noordland lay moored to her wharf in Jersey City New Jersey, an altercation took place between two of the crew, to-wit, the above-named Joseph Wildenhus and one Figens, in which Wildenhus stabbed Figens with a knife, from the effects of which the latter soon after died. Both parties were Belgian subjects, and domiciled in that kingdom. The affair occurred below the deck of the vessel, and no one but members of the crew were present. Wildenhus was arrested and committed to jail by the public authorities of Jersey City as if the offense had been committed in the body of Hudson county; and it is proposed that the offender shall be tried and otherwise dealt with by the state of New Jersey.

It is claimed that, under the rules of international law, and also by virtue of treaties now in force between the United States and Belgium, the offense in question is cognizable solely under the laws of Belgium, and that, therefore, the imprisonment is unlawful. The question, it is contended, is not whether a vessel of a nation, by going into the port of a foreign state, becomes subject to the municipal laws of that state, nor whether the state of New Jersey could take cognizance of the crime in the absence of the exercise of authority by the foreign state, but whether the foreign state, when it may choose to assert the privilege, has the exclusive right to control the internal affairs of its own ships, both civil and criminal, even when in the ports of another state, provided the tranquility of such other state is not involved, or persons entitled to its protection concerned. It is further claimed that under these circumstances the jurisdiction of the foreign state is exclusive. These are general propositions. The discharge and surrender of the prisoners are demanded on two distinct and independent grounds:

'First, because they are confined in prison by the state of New Jersey, in violation of a treaty of the United States; and, second, because, being subjects of a foreign state, and domiciled therein, they are in custody for an act done under a privilege, protection, or exemption claimed under the sanction of such foreign state, the validity and effect whereof depend upon the law of nations; namely the privilege of a trial of the offense before a tribunal existing under the laws of Belgium, and of exemption from the jurisdiction of the local tribunals of this country.'

And it is contended that, under the express words of the statute, (section 753, Rev. St. U.S.) defining the jurisdiction of this court in cases of habeas corpus, either of these grounds is sufficient, and that both must fail before the writ can be dismissed. The statute referred to reads as follows:

'The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody
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