Mali v. Keeper of the Common Jail of Hudson County, New Jersey
Decision Date | 10 January 1887 |
Parties | MALI, Consul of His Majesty the King of the Belgians, and others v. KEEPER OF THE COMMON JAIL OF HUDSON COUNTY, NEW JERSEY. 1 |
Court | U.S. Supreme Court |
F. R. Coudert and Edward K. Jones, for appellants, Mali, Consul of His Majesty the King of the Belgians, and others.
This appeal brings up an application made to the circuit court of the United States for the district of New Jersey, by Charles Mali, the 'counsul of his majesty the king of the Belgians, for the states of New York and New Jersey, in the United States,' for himself, as such consul, 'and in behalf of one Joseph Wildenhus, one Gionviennie Gobnbosich, and John J. Ostenmeyer,' for the release, upon a writ of habeas corpus, of Wildenhus, Gobnbosich, and Ostenmeyer from the custody of the keeper of the common jail of Hudson county, New Jersey, and their delivery to the consul, 'to be dealt with according to the law of Belgium.' The facts on which the application rests are thus stated in the petition for the writ:
Articles 8, 9, and 10 of a royal decree of the king of the Belgians, made on the eleventh of March, 1857, relating to consuls and consular jurisdiction, are as follows:
The application in this case was made under the authority of these articles.
Article 11 of a convention between the United States and Belgium 'concerning the rights, privileges, and immunities of consular officers,' concluded March 9, 1880, and proclaimed by the president of the United States, March 1, 1881, (21 St. 123,) is as follows:
The claim of the consul is that, by the law of nations and the provisions of this treaty, the offense with which Wildenhus has been eharged is 'solely cognizable by the authority of the laws of the kingdom of Belgium,' and that the state of New Jersey is without jurisdiction in the premises. The circuit court refused to deliver the prisoners to the consul, and remanded them to the custody of the jailer. 28 Fed. Rep. 924. To reverse that decision this appeal was taken.
Mr. F.R. Couder and Mr. Edward K. Jones for appellants.
[Argument of Counsel from pages 5-11 intentionally omitted]
>>C. H. Winfield, for appellee, Keeper of the Common Jail of Hudson County, New Jersey.
By sections 751 and 753 of the Revised Statutes the courts of the United States have power to issue writs of habeas corpus which shall extend to prisoners in jail when they are in 'custody in violation of the constitution or a law or treaty of the United States,' and the question we have to consider is whether these prisoners are held in violation of the provisions of the existing treaty between the United States and Belgium.
It is part of the law of civillized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement; for, as was said by Chief Justice MARSHALL in The Exchange, 7 Cranch, 144: 'It would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such * * * merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.' United States v. Diekelman, 92 U. S. 520; 1 Phillim. Int. Law, (3d Ed.) 483, § CCCLI.; Twiss, Law Nat.
229, § 159; Creasy, Int. Law, 167, § 176; Halleck, Int. Law, (1st Ed.) 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell, Cr. Cas. 72; S. C. 8 Cox, Crim. Cas. 104; Regina v. Anderson, 11 Cox, Cirm. Cas. 198, 204; S. C. L. R. 1 Cr. Cas. 161, 165; Regina v. Keyn, 13 Cox, Crim. Cas. 403, 486, 525; S. C. 2 Exch. Div. 63, 161, 213. As the owner has voluntarily taken his vessel, for his own private purposes, to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that government such allegiance, for the time being, as is due for the protection to which he becomes entitled.
From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel, or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. But, if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have...
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