The New York herald., 1877-07-10
THE COURTS.
United States and German Treaty as to
DESERVING Sailors.
THE TREATY SUSTAINED
Lively Legal Contest Among the Beneficiaries
of Miss DanSer's will.
NEW PHASE IN THE CALENDER DlTORCE SUIT.

United States Commissioner Osborne gave yesterday
decision the matter OF the application OF the Ger
man Consul for the arrest OF Lorenz Jonsen and Emil
Broback alleged deserters from the German bark her
Eogin Anna The decision Is as foIows:-The treaty
between the United States and the German Empire
being duly ratified and proclaimed Is under the sixth
article Of our constitution, the supreme law OF the
land II Il be the supreme law OF the land, then NO
act Of Congress to carry out its provisions
unless the terns treaty be such TO necess-
tate the action OF tho Legislature to enforce It's object
and TO provide means to carry out It's stpulationA
Tue stpuations treaty act law TO the courts
OF JUSTICE State and federal and are OF the character
10 operate of themselves as consttutionally oblga-
tory without the aid OF any legislation oy Con
rress Article IA OF the treaty states that Con
suIs general and consus may arrest the officers,
sailors and all other persons making part Of the
crews merchant vessels oil their naton VINO may DC
guilty or be having deserted such ships and
vessels or the purpose OF sending thcm on board OF
back 10 their country 'ro that end the consus OF
Germany IN the United States shall apply 10 oither the
federal State municipal courts or authorities,
and make request In writing ior the de-
sertcs supporting by Official extract OF the regis
ter Of the vessel the list OF tho crew. or by other
official documents to show that the men whom they
claimed belong said crew. Upon such request alone,
thus supported and without the action 0i any Oath
from the consus oeserers mot being citizens OF the
country where the dc mand made either The time
OF their shipping their arrival the port shall be
given up " Consul" This treaty was ratified on
April ~, 1s72 ana proclaimed by the President June
i,
States contains substance the language OF the treaty
uu the subject OF deseruon with The additional re-
quremenl the part Of the federal magistrate TO In
oure into the charge descrton thereby IN effect re-
curing review o the action or decision OF The Ger
man Consul, who claims under the treaty .ne uuy OF
detcrm mug dcserters on board OF vessels be-
longing 10 nation, without the Interference OF the
local authorities
In this respect there is a conflict of opinion between
the and the defence, the counsel tor the
accused claiming The charge Of descrtion shoud Dc
proved before the Commissioners under the Con-
andl L h0 sel e.
nyng the right OF the Commissioner to investigate SAID
charges and protesting against sucn proceedings IL
DOUBTED bat Congress recognizes ny law the
existence Of treaty spuaons on the subject OF deser-
ton olxorcgn seamen and enacted this law IN execu-
tion oil sucn might require method OF pro-
cedure But IN this the proceedings required
under the enforce the fourteenth article OF
the treaty in question imposes upon the magistrate tho
duty inquirng into ana investigating The charge OF
ucseton whereas the terms OF the SAID article o the
treaty do not call Tor such inquiry on tho part OF
the magistrate, II the language OF said article
Is to be literally construed. Here is the contro-
yersy. My examination oil the authorities on the
question OF OF Congress In conflict with treaties
have led mo to the conclusion that treaties the
effect to repeal all prior laws OF Congress
OH the same subject lsee Devosee 9th CrAncn.
627: Weyr vs. Hilton, Dallas 266-284; Gordon vs.
schooner Peggie LIST Cranch) These authorities sus-
tain doctrine that all laws repeal previous laws
have been unable to lind single case when Congress
has annuled treaty having passed laws In contra
yeul,on and IN conflict with the terms and stpula-
lions OF a treaty, duly notified and proclaimed, when
the courts Upheld such an act on the part Of Con-
gress constitutional aud proper The jurisdiction
OF the government oil the United States TO cause fugi
tiyes from justice descrters from. service oI Q
Iorcign nation TO be arrested, detained aud de-
livered upon the demand OF such foreign ma
tiOn or us officers not founded upon ex-
press provisions ot the constitution. II IL de-
rived from the treating making power The consti-
tution not impose any specai limitations oo the
treaty making power nevertheless every treaty must
conform to the nature Of the government as we'll
the spirit Of the constitution. Guided, therefore,
by the constitution oil my country and the
interpretation oil the provisions relating to the
treaty making power and ny the decision OF the United
States Supreme Court and the opinion oil the Attorney
General on the subject under discussion, am forced
to the conclusion that the treaty IN question relating
TO the arrest o deserers upon the application o. the
German Consul contains sufficient def ntenoss of detail
and methods of procedure TO justify the judicial branch
OF the government to render such aid US tho treaty
calls for without special act oil Congress to ENFORCE
IL, consequently must dsclam the right TO nves
tgate charge OF deserton which tho treaty clothes
the Consul with power 10 determine.
The sailors were rcmanded to the custody OF the
United states Marshal await the action of the Ger
man Consul II is said that the counsel Tor the
cd NfIIa q a Circuit Term.