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Mr. Burlage to Mr. Van Limburg. No. 36.]
New York, September 26, 1862. Sir: I have the honor to report the circumstances of the quarrel on board the Jan Van Galen between the captain, P. H. de Boer, and his carpenter, H. Nepping. Contrary to the custom thus far followed, that United States courts do not interfere with quarrels and difficulties between captain and crew on board of Dutch vessels, the court of general sessions, however, took cognizance of a complaint by the carpenter, Nepping, against his captain, de Boer, (as per annexed copy of a document of Charles Edwards, lawyer, marked A,) and the judge decided that Nepping must be discharged, because the American law considers a voyage, where it is not specified and fixed as to period of time in the muster-roll, a roving one, and this was not done in the muster-roll of the Jan Van Galen, where it was said, “ from Rotterdam to Hong Kong ria Singapore, and further to such other places as the captain, or his successor, or his substitute, may deem proper, and return to a Dutch port." In relation to this the Dutch law says, (article 3, law concerning the management of and discipline on board merchant vessels:) “ The voyage will be deemed to have commenced as soon as the vessel is departed from the place where the mustering of the crew has taken place, and to be finished when the vessel, on her return in this country, is arrived at the place of unloading or of her destination."
As the law of the Netherlands, according to articles 14 and 17, stipulates that all disputes between captain and crew during the voyage and in a foreign country shall be decided upon by the consul, the captain of the Jan Van Galen complains that in his case my interference has been evaded, and that he thereby was compelled to submit to a foreign authority, contrary to treaties existing between the Netherlands and the United States, and that he, moreover, was subjected to annoyances and expenses. Amongst the latter were $35 for fees to the lawyer, as per annexed copy, marked B. He, therefore, through my intermediary, requests your excellency to take such steps in this matter as your excellency may deem proper to vindicate his rights and to prevent, for the future, occurrences of the same kind.
I have the honor of being, with the highest esteem, your excellency's obedient servant,
RUD. C. BURLAGE. His Excellency Roest Va. LIMBURG, Envoy Extraordinary and Minister Plenipotentiary
from his Majesty the King of the Netherlands, fr., fr., gc.
The Jan Van Galen.
New York, August 25, 1862. Sir: I have the honor to report the circumstances connected with the claim of Herman Nepping, late carpenter of the Jan Van Galen, and also to give you my views in relation to it.
I agree with you that the American courts ought not to interfere with neutral vessels or their masters except in very extreme cases, and that all jurisdiction should be left to consuls. However, both you and I know, sir, that, notwithstanding all protests, some of our courts will take cognizance of complaints by seamen against their captains.
I, as standing counsel for other consulates than yours, especially for the British consulate, have, for several years, done my best in court and out to check such a course of things, but, in a port like this, it is difficult to contend
against bad men who encourage bad seamen, and against outside and political influences.
I believe I have before now taken the liberty to call to your attention the too general wording of foreign voyages on muster-rolls. Both the British and American shipping articles generally specify, as far as possible, all the important places at which the vessel is to touch, and expressly state the length of voyage (as, for instance, not to exceed six months or three years.) Our courts consider that where this is not done it becomes a mere roving voyage, under which a sea. man might be kept for an indefinite time, ad infinitum, on board, and, perhaps, never able to reach his home. And when a keeper of a sailor's boarding-house ascertains that the voyage is not fixed as to time, he goes to some lawyer and gets him to sue vessel or master on the ground the voyage is ended, on account of not being specific and fixed as to period of time. And so, in the case of the Jan Van Galen, a writ of habeas corpus was first issued to show that Nepping was detained against his will, because the voyage was said to be at an end from uncertainty. The matter came before a judge notorious for his want of prineiple, and he chose to discharge this man from the vessel even before I had put in my written argument, (which the judge had agreed to receive.) Threat was then made to attach the ship if the captain did not pay this man in full and let him go, On a conference which I had the pleasure to have with you, it was decided that I should defend any suit or attachment which should be had. The lawyer opposed to me was desirous I should allow an attachment to be brought without any security being given by Nepping; but this I would not give in to; and, no doubt, the difficulty he found in getting it, and my known determination to fight, kept him from giving further trouble until the vessel had got to sea.
I am inclined to think that if the foreign consuls were to sign a memorial to our legislature, asking them to pass an act which should not allow our minor courts to take cognizance of matters between foreign captains and crews, that it would have attention. I have once or twice suggested something of this kind to the British consul.
I am satisfied, from the examination which was had before the judge on the return of the writ of habeas corpus, that this man, Nepping, was a bad fellow, and that the master, de Boer, had done no more than his duty, and had behaved most properly for the interests of his owners.
According to your wish, I have enclosed a memorandum of my fees, and remain, sir, your most obedient and humble servant,
The ship Jan Van Galen debtor to Mr. Charles Edwards, advocate :
penter; drawing and engrossing special return; two attend-
written communication to the consul for the Netherlands..... $35 Received payment September 3, 1862.
CHARLES EDWARDS, By J. P. CAMPBELL.
Mr. Seward to Mr. Van Limburg.
DEPARTMENT OF State,
Washington, September 30, 1862. Sir: I have the honor to acknowledge the receipt of your note of the 27th instant, with the accompanying papers, relative to a supposed improper interference by the court of general sessions at New York, in a dispute between the captain of the Netherland vessel the Jan Van Galen and her carpenter, named Herman Nepping. You allege that the court referred to had no jurisdiction in the matter, and you request this government to reprimand that tribunal, and to issue orders to courts and judges of the United States to abstain from interfering in similar disputes. You also request reparation to the captain of the Jan Van Galen for the damage which he has sustained.
In reply, I have the honor to inform you that this department has no authority to reprimand or to issue orders to any judicial tribunal in this country, especially to a State court. According to the system of government prevalent here, the courts of justice are independent of the Executive. Any party summoned before them has the privilege of being represented by counsel, and, in most cases, of appealing from any decision supposed to be unjust. Whether the court of general sessions at New York had jurisdiction of the case referred to, was a question for that court itself to decide in the first instance, and if the captain or the consul general of your government feels aggrieved by a decision in the affirmative, there certainly is a right of appeal to other courts, which would review that judgment and bring it into conformity with the laws and treaties of the United States. This government has no other constitutional means of effecting such results.
I am not aware of any treaty stipulation between the United States and the Netherlands which gives to the consuls of the latter unqualified jurisdiction over disputes between masters of vessels and their crews. The phrase to which you refer in the exequatur of the consul of the Netherlands cannot, in the opinion of this department, be construed as conferring so important a power. This can only result from a treaty, which the President of the United States alone cannot conclude without the advice and consent of the Senate. I have the honor to be, sir, your very obedient servant,
WILLIAM H. SEWARD. Mr. Roest Van LIMBURG, fr., fc., fc.
Mr. Seward to Mr. Van Limburg.
DEPARTMENT OF STATE,
Washington, September 30, 1862. Sir: The undersigned, Secretary of State of the United States, has had the honor to receive the note of Mr. Van Limburg, envoy extraordinary and minister plenipotentiary of his Majesty the King of the Netherlands, objecting to a draft of the Netherlands consul at Philadelphia for the military service of the United States.
In reply, the undersigned has the honor to acquaint Mr. Van Limburg that as it is understood that the person referred to has not yet been drafted, this department prefers in this, as it has in other cases, to postpone any consideration of the question of the liability to draft, which it may be proper for the executive government to entertain, until the .draft apprehended shall have actually been effected.
The undersigned avails himself of this occasion to offer to Mr. Van Limburg a renewed assurance of his very high consideration.
WILLIAM H. SEWARD. M. Roest VAN LIMBURG.
DIr. Van Limburg to Mr. Seward.
New York, October 9, 1862. Sir: I have had the honor to receive your two notes, dated the 30th of last month, one of which related to the enrolment of the consul of the Netherlands at Philadelphia for drafting, and the other was in regard to the interference of a judicial authority of New York in a question of internal order in regard to a Netherlandish vessel.
As heretofore, in the absence of formal stipulations, a reciprocity of proceedings which were sincerely benevolent had presided over the treatment of consular agents and affairs in the two countries, which mutually took pleasure in giving proofs to each other of consideration and obligingness, I believed my. self sufficiently authorized, even without special instructions, to ask, in the two cases referred to, the treatment of consuls of other nations which have concluded conventions with the United States in this regard. I thought myself so much the more authorized to do so, as the terms of the exequaturs granted by the President to our consuls seemed to guarantee expressly a privileged treatment.
Supposing that the United States would prefer that their consuls, even when not Americans, should be exempt in the Netherlands from military service, and having read an official letter of Attorney General Cushing to Secretary of State Marcy, cited by Wheaton, and communicated to the various consuls of the United States, that consuls “are privileged from political or military serrice," I did not think that the government of the United States would wish to reserve to itself the power of judging whether it suited or not to subject a consul of the Netherlands, even though not a Netherlander, to military service.
Believing that the United States would prefer that questions of internal order in regard to their merchant vessels should be, in foreign ports, subordinated to the judgment of American consuls, I flattered myself that a reciprocal exemption from the interference of the American judicial authority would be accepted as a general rule, and particularly in regard to Netherlandish vessels.
You have done me the honor to inform me, sir, that our captains or consuls who think themselves aggrieved by the interference of a judicial authority of a State have the power to resort to an appeal-that is to say, to a long and costly proceeding which would little serve towards a clear exemption of American captains from the judicial intervention of the Netherlandish authorities in questions of internal order, like that which I have now the honor of discussing with you.
I shall, therefore, sir, hasten to communicate to the government of the King my notes and your replies concerning the two questions raised, and I have the honor, sir, to renew to you the assurances of my high consideration.
ROEST VAN LIMBURG Hon. Mr. SEWARD,
Secretary of State of the United States of America, fr., &c., fr.
Mr. Van Limburg to Mr. Seward.
New YORK, October 29, 1862. Sir: I take the liberty of communicating to you herewith a letter from the consul of the Netherlands at Philadelphia, who demonstrates therein how aggravating to him is the uncertainty in which the American government leaves him, by not expressing its opinion in advance in regard to the obligation, or mere obligation, which it wishes or will wish to impose on foreign consuls (citizens of the United States) of sharing in the approaching enrolment for the military service of the United States.
The consul, in particular, says that, in five days after being “drafted,” he would have to go to the camp, which would give him but little chance to obtain a decision from the government of the United States, of making his necessary arrangements, and of providing himself, casu quo, with a substitute.
Abstaining from any reflection in this respect, I have the honor, sir, to reiterate to you the assurances of my consideration.
ROEST VAN LIMBURG. Hon. Mr. SEWARD,
Secretary of State of the United States of America.
Mr. Zeigler to Mr. Van Limburg.
CONSULATE OF THE NETHERLANDS,
Philadelphia, October 27, 1862. SIR: On the 27th ultimo I addressed the consul general, Mr. Burlage, on the subject of my enrolment for military draft by the United States authorities, and copy of which letter I beg to enclose.
Mr. Burlage, on the 3d instant, forwarded me copy of a communication addressed to your excellency by Mr. Seward, Secretary of State at Washington, in which the honorable Secretary, as you are aware, stated he preferred postponing any consideration of the question of the liability of being drafted which it may be proper for the United States government to entertain, &c. I now beg to call your excellency's attention to the fact that the authorities here will draft tomorrow. All arrangements for that purpose have been made, and as only five days are allowed for one to report himself for camp in case he is drafted, it is to be regretted the honorable Secretary of State does not decide the question at once, so that I may know what my position is or will be.
I hold an exequatur from the President of the United States, granting me privileges granted to consuls of the most favored nations on earth. Nothing therein is said whether citizen or no citizen. I therefore do not see that the decision of the draft commissioner accords to the tenor of that document, although I am a citizen of the United States.
It seems to me, my dear sir, that the question ought to be settled at once; then I would know what to do. In case of an unfavorable decision a substitute could be obtained, if in time, but if not in time, a difficulty possibly to obtain one. As for obtaining a substitute in advance of a decision, does not seem proper, as it is not my person I must take into consideration, but the office I hold and position I represent. It would not be amiss, perhaps, to say to me, I was informed by the Prussian cônsul here he had intimation from his minister