Mali v. Keeper of the Common Jail of Hudson County, New Jersey

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:

'Second. That on or about the sixth day of October, 1886, on board the Belgian steam-ship Noordland, there occurred an affray between the said Joseph Wildenhus and one Fijens, wherein and whereby it is charged that the said Wildenhus stabbed with a knife and inflicted upon the said Fijens a mortal wound, of which he afterwards died.

'Third. That the said Wildenhus is a subject of the kingdom of Belgium, and has his domicile therein, and is one of the crew of the said steam-ship Noordland, and was such when the said affray occurred.

'Fourth. That the said Fijens was also a subject of Belgium, and had his domicile and residence therein, and at the time of the said affray, as well as at the time of his subsequent death, was one of the crew of the said steamship.

'Fifth. That, at the time said affray occurred, the said steam-ship Noordland was lying moored at the dock of the port of Jersey City, in said state of New Jersey.

'Sixth. That the said affray occurred and ended wholly below the deck of the said steam-ship, and that the tranquillity of the said port of Jersey City was in nowise disturbed or endangered thereby.

'Seventh. That said affray occurred in the presence of several witnesses, all of whom were and still are of the crew of the said vessel, and that no other person or persons except those of the crew of said vessel were present or near by.

'Eighth. Your petitioner therefore respectfully shows unto this honorable court that the said affray occurred outside of the jurisdiction of the said state of New Jersey.

'Ninth. But, notwithstanding the foregoing facts, your petitioner respectfully further shows that the police authorities of Jersey City, in said state of New Jersey, have arrested the said Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John J. Ostenmeyer, of the crew of the said vessel, (one of whom is a quarter-master thereof,) and that said Joseph Wildenhus has been committed by a police magistrate, acting under the authority of the said state, to the common jail of the county of Hudson, on a charge of an indictable offense under the laws of the said state of New Jersey, and is now held in confinement by the keeper of the said jail, and that the others of the said crew, arrested as aforesaid, are also detained in custody and confinement as witnesses to testify in such proceedings as may hereafter be had against the said Wildenhus.'

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: 'Art. 8. Our consuls have the right of discipline on Belgian merchant vessels in all the ports and harbors of their district. In matters of offenses or crimes they are to make the examination conformably to the instructions of the disciplinary and penal code of the merchant service. They are to claim, according to the terms of the coventions and laws in force, the assistance of the local authorities for the arrest and taking on board of deserting seamen.

'Art. 9. Except in the case where the peace of the port shall have been compromised by the occurrence, the consul shall protest against every attempt that the local authority may make to take cognizance of crimes or offenses committed on board of a Belgian vessel by one of the ship's company towards one, either of the same company, or of the company of another Belgian vessel. He shall take the proper steps to have the cognizance of the case turned over to him, in order that it be ultimately tried according to Belgian laws.

'Art. 10. When men belonging to the company to a Belgian vessel shall be guilty of offenses or crimes out of the ship, or even on board the ship, but against persons not of the company, the consul shall, if the local authority arrests or prosecutes them, take the necessary steps to have the Belgians so arrested treated with humanity, defended, and tried impartially.'

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 respective consuls general, consuls, vice-consuls, and consular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of all differences which may arise, either at sea or in port, between the captains, officers, and crews, without exception, particularly with reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere, except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore or in the port, or when a person of the country, or not belonging to the crew, shall be concerned therein. In all other cases, the aforesaid authorities shall confine themselves to lending aid to the consuls and vice-consuls or consular agents, if they are requested by them to do so, in causing the arrest and imprisonment of any person whose name is inscribed on the crew list, whenever, for any cause, the said officers shall think proper.'

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.

WAITE, C. J.