the order of the consul was obtained by the master on his own ex parte representation. And in the second, (379) that a consul has no authority to commit seamen to prison. The laws of the United States invest their consuls and commercial agents with certain powers to be exercised for the benefit and protection of American seamen when in foreign ports; as for the relieve of destitute mariners and furnishing them with the means of returning home. But no portion of the judicial power of the United States is conferred on consuls. They cannot take cognizance of the offences of seamen in foreign ports and sentence them to punishment. When the master of a vessel finds it necessary for the purpose of preserving discipline on board his ship and maintaining his authority, to treat any of his crew with severity, as a matter of prudence it may be well for him to consult the consul and take his advice. This is usually done on his own representation of the case, but the interposition of the consul has never been supposed to exempt the master from his own responsibility. Wilson v. The Mary, Gilpin, 31.

WILLIAMS v. THE WELHAVEN, See The Welhaven.

WILSON V. THE MARY, (1828, U. S.)

Gilp 31; Fed. Cases 17,823.

Hopkinson, District Court.

(Extract) I will take this occasion to notice an error which, I fear, has frequently, as in this instance, misled our masters of vessels. They seem to believe that they may do anything, provided they can obtain the assent of the consul to it; which assent consuls are apt to give with very little consideration. When the master, on his return, is called upon to answer for his conduct; he thinks it is enough to produce a consular certificate approving his proceeding; or to say, he consulted the consul, or acted on his advice. This is altogether a mistake. It is certainly a very prudent precaution to consult the consul, in any difficulty, and if the case were fully and fairly stated to him, and his advice faithfully pursued, it would afford a strong protection on the question of malicious or wrongful intention, but it can give no justification or legal sanction to an illegal act; nor deprive those, who have been injured, of their legal rights and remedies.

WOPE v. HEMENWAY, (1855, U. S.)

1 Sprague 300; Fed. Cases 18,042.

Sprague, District Court.

[See Snow v. Wope where this case was affirmed.

This case contains an interesting account of the imprisonment of seamen and failure of consul to perform his duty.-ED.]

WYMAN, IN RE, (1906, U. S.-Russia)

77 N. E. 379; 191 Mass. 276.

Lathrop, Supreme Court of Massachusetts.

Appeal from Probate Court, Middlesex County.

Petition of Charles F. Wyman, Russian vice-consul, for appointment as administrator of the estate of Julius Saposnik. From a decree dismissing the petition, petitioner appeals on an agreed statement of facts. Reversed.

Frederic B. Greenhalge, for public administrator. Frederic R. Coudert and John H. Appleton, for appellant.

LATHROP, J. On the agreed facts in this case we have no doubt that the judge of the probate court erred in appointing a public administrator as administrator of the estate of a Russian subject dying here intestate and leaving personal property, and in dismissing the petition of the Russian vice-consul on the ground that it did not appear that he had a legal right to be appointed administrator of the estate to the exclusion of the public administrator.

By article 8 of the treaty of December 6-18, 1832 (8 Stat. 448,) between Russia and the United States, it was provided: "The two contracting parties shall have the liberty of having in their respective ports consuls, vice-consuls, agents, and commissaries of their own appointment, who shall enjoy the same privileges and powers of the most favored nation." The same treaty in article 10 provides: "The citizens and subjects of each of the high contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation or otherwise, and their representatives, being citizens or subjects of the other party shall suc ceed to their said personal goods, whether by testament or ab intestato, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at will, paying to the profit of the respective governments such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases.

(380) Under the most favored nation clause reliance is had upon the provisions of the treaty of July 10, 1853, between the Argentine Republic and the United States (10 Stat. 1001,) which read as follows: "If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conform

ably with the laws of the country, for the benefit of the creditors and legal heirs." See, also, article 8 of the treaty between Costa Rica and the United States of July 10, 1851 (10 Stat. 921.)

There is but little authority directly in point, on the question raised by this appeal. In Lanfear v. Ritchie, 9 La. Ann. 96, decided in 1854, the decision was against the vice consul of Sweden and Norway, on the ground that the right claimed was "incompatible with the sovereignity of the state." But this was at a time when we might expect the doctrine of state rights to be strongly insisted upon. On the other hand, there are two decisions in the Surrogate's Court for Westchester county, N. Y., which fully sustain the position of the viceconsul in the case before us. These cases are well considered and cover the entire ground. Estate of Tartaglio, 12 Misc. Rep. 245, 33 N. Y. Supp, 1121; In re Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119. None of these cases are binding upon us, and the case must be decided on general principles.

Among the powers conferred upon the president by article 2, § 2, of the constitution of the United States, is this; "He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.' By article 6 it is declared: "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Treaties are to be liberally construed. Shanks v. Dupont, 3 Pet. 242, 249, 7 L. Ed. 666; Hauenstein v. Lynham, 100 U. S. 483, 487, 25 L. Ed. 628. When, then, anything in the constitution or laws of a state are in conflict with a treaty, the latter must prevail, and this court has not hesitated to follow this rule, which is generally recognized as the law of the land. Tellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379; Ware v. Hylton, 3 Dall. 199, 237. 1 L. Ed. 568;United States v. Forty-three Gallons of Whisky, 93 U. S. 188, 197, 23 L. Ed. 846; Hauenstein v. Lynham, 100 U. S. 483, 489, 25 L. Ed. 628; the Head Money Cases, 112 U. S. 580, 598, 5 Sup. Ct. 247, 28 L. Ed. 798, per Miller, J.; Geofroy v. Riggs, 133 U. S. 258, 267, 10 Supt. Ct. 295, 33 L. Ed. 642; In re Parrott (C. C.) 1 Fed. 481.

While it may be true that there is some limit to the powers of the president and Senate in making treaties, as has been intimated in some of the cases in the supreme court of the United States, we cannot accede to the contention of the counsel of the public administrator, that the treaties in question in this case are beyond the jurisdic

tion of the treaty making power; nor can we accede to the further contention as to the construction of the treaty which was adopted by the judge of the probate court. We might perhaps stop here, but as the question of giving a bond is sure to arise, we are of the opinion that the vice consul, as he has applied for letters of administration, and thus has submitted himself to the court, should be required to give a bond, and in other respects to conduct himself with respect to the estate as would any other administrator.

The order, therefore, will be: Decrees of the probate court reversed.

OPINIONS OF THE ATTORNEYS GENERAL

Vol. I, p. 41 (Bradford)

RESPECT DUE TO CONSULS

A riot before the house of a foreign consul by a tumultuous assembly, requiring him to give up certain persons supposed to be resident with him, and insulting him with improper language, is an offence not within the act of the 30th of April, 1790, for the punishment of certain crimes against the United States.

A consul is not a public minister, nor entitled to the privilege attached to the person of such an officer. As the law now stands, the offence in question cannot be legally prosecuted in the courts of the United States. If, however, the grand jury will present the offence in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination.

Philadelphia, February 20, 1794.

Sir: By the correspondence between the British consul at Norfolk and the attorney of the United States for the district of Virginia, which you transmitted to me for consideration, it appears that a question has arisen, whether a riot committed by a number of persons tumultuously assembled before the house of a foreign consul, requiring him to deliver up certain persons supposed to be resident with him, and insulting him (42) with improper language, can be the subject of prosecution in the courts of the United States. I have now the honor to state to you my opinion on that point, agreeably to your request.

Upon the best consideration I can give the subject, I am satisfied that this offense is not within the act of the 30 April, 1790, for the punishment of certain crimes against the United States. The only section which in any degree relates to it, is that which prescribes the punishment "for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public minister:” but this cannot reach the offence in question, because it is now fully settled that a consul is not a public minister. He is not considered as such by the writers on the law of nations, because he is not in any degree invested with the representative character; and it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister. The constitution of the United States also distinguishes between them, where it extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The same distinction is carefully ob