Certain Prussian sailors libeled a Prussian vessel in New York
in admiralty for wages, less in amount than $2,000. The master set
up a provision in a treaty of the United States with Prussia by
which it was stipulated that the consuls of the respective
countries should sit as judges in "differences between the crews
and captains of vessels" belonging to their respective countries,
and the consul of Prussia, coming into the district court,
protested against the district court's taking jurisdiction. The
district court, however, did take jurisdiction, and decreed $712 to
the sailors. On appeal, the circuit court reversed the decree and
dismissed the libel because of the consul's exclusive jurisdiction.
Held that mandamus would not lie to the circuit judge to
compel him to entertain jurisdiction of the cause on appeal and to
hear and decide the same on the merits thereof, and that this
conclusion of this Court was not to be altered by the fact that,
owing to the sum in controversy being less than $2,000, no appeal
or writ of error from the circuit court to this Court existed.
The Constitution ordains [
Footnote 1] that the judicial power of the United States
shall extend "to all cases of admiralty and maritime
jurisdiction."
The 10th article of the treaty of the United States with the
King of Prussia, made May 1st, 1828, [
Footnote 2] contains this provision:
"The consuls, vice-consuls, and commercial agents shall have the
right as such to sit as judges and arbitrators
in such
differences as may arise between
the captains and crews of
the vessels belonging to the nation whose interests are
committed to their charge, without the interference of the local
authorities, unless the conduct of the crews, or of the captain,
should disturb the order or tranquility of the country, or the said
consuls, vice-consuls, or commercial agents, should require their
assistance to cause their decisions to be carried into effect or
supported. It is, however, understood that this species of judgment
or arbitration
Page 81 U. S. 153
shall not deprive the contending parties of the rights they have
to resort on their return to the judicial authority of their
country."
"All treaties made, or which shall be made, under the authority
of the United States,' it is ordained by the Constitution of the
United States, [
Footnote 3]
'shall be the supreme law of the land."
With this treaty thus in force, the mate and several of the
crew, all Prussians -- who had shipped in Prussia on the Prussian
bark
Elwine Kreplin, under and with express reference made
in the shipping articles to the laws of Prussia -- got into a
difficulty at New York with the master of the bark, who caused
several of them to be arrested on charges of mutiny and desertion.
They, on the other hand, took the case before the Prussian consul,
denying all fault on their part and claiming wages. The vice-consul
heard the case and decided that on their own showing they had
forfeited their wages by the Prussian law applied to their contract
of shipment. In addition to this, he issued a requisition addressed
to any marshal or magistrate of the United States, reciting that
the master and crew had been guilty of desertion and requiring such
marshal or magistrate to take notice of their offense.
The mate and men now filed a libel in the district court at New
York against the bark for the recovery of wages (less than $2,000),
which they alleged were due to them, and the bark was attached to
answer. The master of the bark, intervening for the interest of the
owners, answered and set up various grounds of defense to the
claim, some of which arose under the laws of Prussia, and
especially he invoked the protection of the clause in the
above-quoted treaty between his country and this, and denied the
jurisdiction of the district court, alleging, moreover, that the
matter in difference, the claim of the libellants for wages, had
already in fact been adjudicated by the Prussian consul at the port
of New York
Page 81 U. S. 154
Before the cause was tried in the district court, the consul
general of the North German Union presented to that court his
formal protest against the exercise of jurisdiction by that court
in the matter in difference. [
Footnote 4] He invoked therein the same clause in the
treaty, and claimed exclusive jurisdiction of such matters in
difference, and declared also that, before the filing of the libel,
the matter had been adjudicated by him, and insisted that his
adjudication was binding between the parties and could only be
reviewed by the judicial tribunals of Prussia.
The district court proceeded notwithstanding to hear and adjudge
the case, placing its right to do this, on the ground that the suit
before
it was a proceeding
in rem to enforce a
maritime lien upon the vessel itself, and not a "difference between
the captain and crew," and also because the Prussian consul had no
power to conduct and carry into effect a proceeding
in rem
for the enforcement of such a lien, and had not in fact passed at
all and could not pass upon any such case. Accordingly after a
careful examination of the facts, that court decreed in favor of
the libellants $712. The case then came by appeal to the circuit
court. This latter court considered that the district court had
given to the treaty too narrow and technical a construction. The
circuit court said:
"The master is the representative in this port of the vessel and
of all the interests concerned therein. He is plainly so regarded
in the treaty. The matter in difference in this cause is the claim
for wages. That arises between the crew and the master, either as
master or as the representative here of vessel and owners. The lien
and the proceeding
in rem against the vessel appertain
only to the remedy. The very first step in this cause is to settle
the matter in dispute. If the claim be established,
Page 81 U. S. 155
then, as incident to the right to the wages, the lien and its
enforcements against the vessel follow. The district court can have
no jurisdiction of the lien, nor jurisdiction to enforce it if it
has no jurisdiction of the difference or dispute touching the claim
for wages. To hold that the jurisdiction of the consul is confined
to cases in which there is no maritime lien and in which no libel
of the vessel could, apart from the treaty, be maintained is to
take from the treaty much of its substance."
The circuit court adverted to and relied on the fact that the
Prussian consul had moreover actually heard the mate and sailors
and pronounced against them.
The circuit court accordingly, while it expressed on a general
view of the merits its sympathy with the sailors, and a strong
inclination to condemn the conduct of the master in the matter, yet
was
"constrained to the conclusion that the treaty required that the
matter in difference should have been left where the treaty with
Prussia leaves it,
viz., in the hands and subject to the
determination of their own public officer."
The result was the dismissal of the libels by the circuit court
for want of jurisdiction.
Thereupon Newman and the others, by their counsel,
Messrs.
P. Phillips and D. McMahon, filed a petition in
this
Court for a writ of mandamus to the circuit judge commanding him
"to entertain jurisdiction of the said cause on appeal and to hear
and decide the same on the merits thereof." The judge returned that
the circuit court had entertained the appeal, and had heard counsel
on all the questions raised in the case, and had decided it, and
that the said court had decided that the matter in controversy was
within the jurisdiction of the consul under the treaty, and that in
the exercise of the jurisdiction so given him, he had decided the
matter, and that therefore the court had dismissed the libel.
The question now was whether the mandamus should issue.
The reader will of course remember the provision in the 13th
section of the Judiciary Act, by which it is enacted:
"That the Supreme Court shall have power to issue writs of
Page 81 U. S. 156
mandamus, in cases warranted by the principles and usages of
law, to any courts appointed or persons holding office under the
authority of the United States."
And also the provision of the 22d section, extended by an act of
1803 to appeals in admiralty, by which it is enacted:
"That final judgments and decrees in civil actions . . . in a
circuit court . . . removed there by appeal from a district court,
where the matter in dispute exceeds the sum or value of $2,000,
exclusive of costs, may be reexamined and reversed or affirmed in
the Supreme Court. "
Page 81 U. S. 161
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Attempt was made in the first place to prosecute the suit in the
name of the mate for himself and as assignee of the crew, but the
court, before entering the decree, suggested an amendment and the
crew were admitted as co-libellants, which will render it
unnecessary to make any further reference to that feature of the
pleadings.
Proceedings
in rem were instituted in the district
court against the bark
Elwine Krepline by the mate, for
himself and in behalf of the crew of the bark, on the twenty-fourth
of August, 1870, in a case of subtraction of wages civil and
maritime, and they allege in the libel, as amended, that the bark
is a Prussian vessel and that they are Prussian subjects, and that
they were hired by the master and legally shipped on board the bark
for a specified term of service, and that they continued well and
truly to perform the duties they were shipped to fulfill, and that
they were obedient to the lawful commands of the master until they
were discharged. They also set forth the date when they were
shipped, the length of time they had served, the wages they were to
receive, and the amount due and unpaid to them respectively for
their services, and aver that the owners of the bark refuse to pay
the amount.
Process was issued and served by the seizure of the bark, and
the master appeared, as claimant and filed an answer. He admits
that the appellants shipped on board the bark at the place and in
the capacities and for the wages alleged in the libel, but he avers
that they signed the shipping articles and bound themselves by the
rules, regulations, and directions of the shipping law and rules of
navigation of the country to which the bark belonged, and he denies
that they well and truly performed their duties or that they
were
Page 81 U. S. 162
obedient to his lawful commands. On the contrary, he alleges
that they, on the day they were discharged, were guilty of gross
insubordination and mutinous conduct, that they resisted the lawful
commands of the master, and refused to obey the same, and
interfered with him in the performance of his duty, and with force
and threats prevented him from performing the same, and thereafter,
on the same day, deserted from the vessel.
Apart from the merits, he also set up the following
defenses:
1. That the court had no jurisdiction of the matter contained in
the libel because the bark was a Prussian vessel, owned by Prussian
citizens, and because the libellants were Prussian subjects
belonging to the crew of the vessel, and were also citizens of that
Kingdom.
Support to that defense is derived from the tenth article of our
treaty with that government, which provides that consuls,
vice-consuls, and commercial agents of the respective countries, in
the ports of the other, shall have the right as such to sit as
judges and arbitrators in such differences as may arise between the
captains and crews of the vessels belonging to the nation whose
interests are committed to their charge, without the interference
of the local authorities, unless the conduct of the crews, or of
the captain, should disturb the order or tranquility of the
country, or the consuls, vice-consuls, or commercial agents should
require their assistance to cause their decisions to be carried
into effect. [
Footnote 5]
He set up that provision of the treaty, and prayed that he might
have the same advantage of it as if the same was separately and
formally pleaded to the libel.
2. That the libellants, in signing the shipping articles, bound
themselves, under the penalty of a forfeiture of wages, not to sue
or bring any action for any cause against the vessel or the master,
or owners thereof in any court or tribunal except in those of
Prussia.
Page 81 U. S. 163
3. That the consul-general of the North German Union, resident
in the City of New York, which government included Prussia and
other sovereignties, heard and examined the questions of difference
between the libellants and the claimant and adjudicated the same;
that the libellants appeared before the court on the occasion and
presented their claim to be discharged and their claim for wages,
and that the consul, in his character as such, heard and examined
their said claims and adjudged that the libellants should return to
the vessel, and that no wages were due them or would be due them
until they complied with the contract of shipment.
Testimony was taken in the district court, and the district
court entered a decree in favor of the libellants for the amount
due them for their wages, and referred the cause to a commissioner
to ascertain and report the amount. Subsequently he reported that
the amount due to the libellants was seven hundred and forty-three
dollars and forty-one cents. Exceptions were filed by the claimant,
and the district court upon further hearing reduced the amount to
seven hundred and twelve dollars and thirty-two cents and entered a
final decree for that amount, with costs of suit. Thereupon the
claimant appealed to the circuit court, and the record shows that
the appeal was perfected and that the cause was duly entered in
that court.
On the fifth of the last month, the petition under consideration
was filed in this Court in behalf of the appellees in that suit, in
which they represented that the cause appealed was fully argued
before the circuit court on the same pleadings and proofs as those
exhibited in the district court, and that the circuit judge
reversed the decree of the district court and dismissed the libel
for want of jurisdiction in the district court to hear and
determine the controversy; that the circuit judge declined to
entertain the cause or to consider the same on the merits, and that
no final decree on the appeal has been entered in the circuit court
or signed by the circuit judge.
His refusal to entertain jurisdiction and to hear and decide
Page 81 U. S. 164
the merits of the case was placed, as they allege, upon the
ground that the matter in difference, under the tenth article of
the treaty, was within the exclusive cognizance of the consul,
vice-consul, or commercial agent therein described, and in
consequence thereof that the district court was without any
jurisdiction, which they contend is an error for the following
reasons:
(1) Because the treaty stipulation, if so construed, is
unconstitutional and void.
(2) Because that article of the treaty applies only to disputes
between the masters and crews of vessels, and has no reference to
suits
in rem against the vessel.
(3) Because the record in this case shows that the Prussian
authorities refused to entertain jurisdiction of the
controversy.
(4) Because the treaty is with Prussia, and it appears that her
government has no consul, vice-consul, or commercial agent at that
port.
(5) Because that the consul who acted in the case requested the
district court to take jurisdiction of the matter in
difference.
Hearing was had on the day the petition was presented, and this
Court granted a rule requiring the circuit judge to show cause on
the day therein named why a peremptory writ of mandamus should not
issue to him directing him to hear the appeal of the petitioners
and decide the same on the merits. Due service of that rule was
made, and the case now comes before the Court upon the return of
the judge to that rule. He returns, among other things not
necessary to be reproduced, as follows: that the cause of the
libellants proceeded to a decree in their favor in the district
court; that an appeal from that decree was taken in due form to the
circuit court for that district; that the circuit court did not
refuse to entertain the appeal, nor did the circuit court refuse to
decide the case on the appeal nor hold or decide that the circuit
court had no jurisdiction to hear or decide the same, as required
by the proofs or by the law. On the contrary, the circuit court did
entertain the appeal,
Page 81 U. S. 165
did hear the counsel of the parties fully on all the questions
raised in the case, and did decide the same. But in making such
decision, the said court did hold and decide that the matter in
controversy was within the jurisdiction of the consul under the
treaty, and that the consul, in the exercise of that jurisdiction,
after hearing the parties, had decided the matter. Pursuant to
those views, the circuit court, as the return shows, did thereupon
direct that the decree of the district court be reversed and that
the libel of the petitioners be dismissed.
Power to issue writs of mandamus to any courts appointed under
the authority of the United States was given to this Court by the
thirteenth section of the Judiciary Act in cases warranted by the
principles and usages of law. [
Footnote 6] When passed, the section also empowered the
court to issue such writs, subject to the same conditions, to
persons holding office under the United States, but this Court very
early decided that the latter provision was unconstitutional and
void, as it assumed to enlarge the original jurisdiction of the
Court, which is defined by the Constitution. [
Footnote 7]
Applications for a mandamus to a subordinate court are warranted
by the principles and usages of law in cases where the subordinate
court having jurisdiction of a case refuses to hear and decide the
controversy, or where such a court, having heard the cause, refuses
to render judgment or enter a decree in the case, but the
principles and usages of law do not warrant the use of the writ to
reexamine a judgment or decree of a subordinate court in any case,
nor will the writ be issued to direct what judgment or decree such
a court shall render in any pending case, nor will the writ be
issued in any case if the party aggrieved may have a remedy by writ
of error or appeal, as the only office of the writ when issued to a
subordinate court is to direct the performance of a ministerial act
or to command the court to act in a case where the court has
jurisdiction and refuses to act, but the
Page 81 U. S. 166
supervisory court will never prescribe what the decision of the
subordinate court shall be, nor will the supervisory court
interfere in any way to control the judgment or discretion of the
subordinate court in disposing of the controversy. [
Footnote 8] Where a rule is laid, as in this
case, on the judge of a subordinate court, he is ordered to show
cause why the peremptory writ of mandamus shall not issue to him,
commanding him to do some act which it is alleged he has power to
do, and which it is his duty to do, and which he has improperly
neglected and refused to do as required by law. Due service of the
rule being made the judge is required to make return to the charge
contained in the rule, which he may do by denying the matters
charged or by setting up new matter as an answer to the accusations
of the relator, or he may elect to submit a motion to quash the
rule or to demur to the accusative allegations. Matters charged in
the rule and denied by the respondent must be proved by the
relator, and matters alleged in avoidance of the charge made, if
denied by the relator, must be proved by the respondent. [
Footnote 9] Motions to quash in such
cases are addressed to the discretion of the court, but if the
respondent demurs to the rule, or if the relator demurs to the
return, the party demurring admits everything in the rule or the
return, as the case may be, which is well pleaded, and if the
relator elects to proceed to hearing on the return, without
pleading to the same in any way, the matters alleged in the return
must be taken to be true to the same extent as if the relator had
demurred to the return. [
Footnote 10] Subordinate judicial tribunals, when the
writ is
Page 81 U. S. 167
addressed to them, are usually required to exercise some
judicial function which it is alleged they have improperly
neglected or refused to exercise, or to render judgment in some
case when otherwise there would be a failure of justice from a
delay or refusal to act, and the return must either deny the facts
stated in the rule or alternative writ on which the claim of the
relator is founded or must state other facts sufficient in law to
defeat the claim of the relator, and no doubt is entertained that
both of those defenses may be set up in the same return, as in the
case before the court. [
Footnote
11] Several defenses may be set up in the same return, and if
any one of them be sufficient, the return will be upheld. [
Footnote 12]
Evidently the district judge was inclined to adopt the
proposition advanced by the libellants that the suit for wages, as
it was prosecuted by a libel
in rem, was not within the
treaty stipulation nor a controversy within the jurisdiction of the
consul, but he did not place his decision upon that ground. He did,
however, rule that the treaty did not have the effect to change the
jurisdiction of the courts, except to require them to decline to
hear matters in difference between the masters and crews of vessels
in all cases where the consul had acted or perhaps was ready to act
as judge or arbitrator in respect to such differences. Beyond doubt
he assumed that to be the true construction of the treaty, and
having settled that matter, he proceeded to inquire whether the
consul had adjudicated the pending controversy, or whether the
evidence showed that he was ready to do so, and having answered
those inquiries in the negative, he then proceeded to examine the
pleadings and proofs, and came to the conclusion in the case which
is expressed in the decree from which the appeal was taken to the
circuit court.
All of those matters were again fully argued in the circuit
court, and the circuit judge decided to reverse the decree of the
district court upon the following grounds:
(1) That
Page 81 U. S. 168
the Prussian consul, under the treaty, had jurisdiction of the
subject matter involved in the suit in the district court.
(2) That the jurisdiction of the consul under the treaty was
exclusive.
(3) That the proofs showed that the consul heard and adjudicated
the matter involved in the suit appealed to the circuit court, and
that the libellants were bound by that adjudication.
Such questions were undoubtedly raised in the pleadings, and it
is equally certain that they were decided by the district court in
favor of the libellants. Raised as they were by the pleadings, it
cannot be successfully denied that the same questions were also
presented in the circuit court, and in view of the return, it must
be conceded that they were decided in the latter court in favor of
the respondent. Support to that proposition is also found in the
opinion of the circuit judge and in the order which he made in the
case. Suffice it, however, to say it so appears in the return
before the court, and this Court is of the opinion that the return,
in the existing state of the proceedings, is conclusive.
Confessedly the petitioners are without remedy by appeal or writ
of error, as the sum or value in controversy is less than the
amount required to give that right, and it is insisted that they
ought on that account to have the remedy sought by their petition.
Mandamus will not lie, it is true, where the party may have an
appeal or writ of error, but it is equally true that it will not
lie in many other cases where the party is without remedy by appeal
or writ of error. Such remedies are not given save in patent and
revenue cases, except when the sum or value exceeds two thousand
dollars, but the writ of mandamus will not lie in any case to a
subordinate court unless it appears that the court of which
complaint is made refused to act in respect to a matter within the
jurisdiction of the court and where it is the duty of the court to
act in the premises.
Admiralty courts, it is said, will not take jurisdiction in such
a case except where it is manifestly necessary to do so to prevent
a failure of justice, but the better opinion is that, independent
of treaty stipulation, there is no constitutional
Page 81 U. S. 169
or legal impediment to the exercise of jurisdiction in such a
case. Such courts may, if they see fit, take jurisdiction in such a
case, but they will not do so as a general rule without the consent
of the representative of the country to which the vessel belongs,
where it is practicable that the representative should be
consulted. His consent, however, is not a condition of
jurisdiction, but is regarded as a material fact to aid the court
in determining the question of discretion, whether jurisdiction in
the case ought or ought not to be exercised. [
Footnote 13]
Superior tribunals may by mandamus command an inferior court to
perform a legal duty where there is no other remedy, and the rule
applies to judicial as well as to ministerial acts, but it does not
apply at all to a judicial act to correct an error, as where the
act has been erroneously performed. If the duty is unperformed and
it be judicial in its character, the mandate will be to the judge
directing him to exercise his judicial discretion or judgment,
without any direction as to the manner in which it shall be done,
or if it be ministerial, the mandamus will direct the specific act
to be performed. [
Footnote
14]
Power is given to this Court by the Judiciary Act, under a writ
of error or appeal, to affirm or reverse the judgment or decree of
the circuit court, and in certain cases to render such judgment or
decree as the circuit court should have rendered or passed, but no
such power is given under a writ of mandamus, nor is it competent
for the superior tribunal, under such a writ, to reexamine the
judgment or decree of the subordinate court. Such a writ cannot
perform the functions of an appeal or writ of error, as the
superior court will not, in any case, direct the judge of the
subordinate court what judgment or decree to enter in the case, as
the writ does not vest in the superior court any power to give
Page 81 U. S. 170
any such direction or to interfere in any manner with the
judicial discretion and judgment of the subordinate court.
[
Footnote 15]
Viewed in the light of the return, the Court is of the opinion
that the rule must be discharged and the
Petition denied.
[
Footnote 1]
Article 3, § 2.
[
Footnote 2]
8 Stat. at Large 378.
[
Footnote 3]
Article 6.
[
Footnote 4]
The consul-general of the North German Union was commissioned by
the King of Prussia, Prussia being one of the states composing the
North German Union, and by certificate of the Secretary of State of
the United States, under the seal of that department, it appeared
that the Executive Department of the United States recognizes the
consuls of the North German Union as consuls of each one of the
sovereign states composing that Union, "the same as if they had
been commissioned by each one of such states."
[
Footnote 5]
8 Stat. at Large 382.
[
Footnote 6]
1 Stat. at Large 81.
[
Footnote 7]
Marbury v.
Madison, 1 Cranch 175;
Ex
Parte Hoyt, 13 Pet. 290.
[
Footnote 8]
Insurance Co. v.
Wilson, 8 Pet. 302;
United
States v. Peters, 5 Cranch 135;
Ex
Parte Bradstreet, 7 Pet. 648;
Ex Parte
Many, 14 How. 24;
United
States v. Lawrence, 3 Dall., 42;
Commissioner v.
Whitely, 4 Wall. 522;
Insurance Co. v.
Adams, 9 Pet. 602.
[
Footnote 9]
Angell & Ames on Corporations, 9th ed., § 727;
Cagger v. Supervisors, 2 Abbott's Practice N.S. 78.
[
Footnote 10]
Tapping on Mandamus 347; Moses on Mandamus 210;
Com. Bank v.
Commissioners, 10 Wendell 25;
Ryan v. Russell, 1
Abbott's Practice, N.S. 230;
Hanahan v. Board of Police,
26 N.Y. 316;
Middleton v. Commissioners, 37 Pa.St. 245; 3
Stephens's Nisi Prius 2326; 6 Bacon's Abridgment, ed. 1856,
447.
[
Footnote 11]
Springfield v. Harnden, 10 Pickering 59;
People v.
Commissioners, 11 Howard's Practice 89;
People v.
Champion, 16 Johnson 61.
[
Footnote 12]
Wright v. Fawcett, 4 Burrow 2041; Moses on Mandamus
214.
[
Footnote 13]
2 Parsons on Shipping 224;
Lynch v. Crowder, 2 Law
Reporter N.S. 355;
Thomson v. Nanny, Bee 217;
The
Bee, Ware 332;
The Infanta, Abbot's Admiralty
263.
[
Footnote 14]
Carpenter v. Bristol, 21 Pickering 258; Angell &
Ames on Corporations, 9th ed., § 720.
[
Footnote 15]
Ex Parte
Crane, 5 Pet. 194;
Ex Parte
Bradstreet, 7 Pet. 634;
Insurance Co. v.
Wilson, 8 Pet. 304;
Ex Parte
Many, 14 How. 25.
