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Payment of Cotton-Claims at the Treasury. Easley's estate is concentrated in one of his heirs, then the said proceeds should be paid to that person. On the other hand, if there should be any serious doubt whether there are not existing in other parties substantial claims against said estate, it would be just to all parties, and much safer, to pay the money to an administrator de bonis non of Easley's estate, when one duly qualified shall appear.
Fifth. Your last inquiry reads as follows: "Does the seizure by an authorized agent of this Department create a conclusive presumption that the proceeds of cotton so seized went into the Treasury, in the absence of any record evidence of such fact?"
A conclusive presumption is one that cannot be overcome by evidence to the contrary. Such a presumption, that the proceeds of cotton went into the Treasury, is not raised by the seizure of it by an authorized agent of the Government. Sec. 5 of the act of May 18, 1872, (17 Stat., 134,) directs the Secretary of the Treasury, in the cases therein provided for, to pay the "net proceeds, without interest, of the sales of said cotton actually paid into the Treasury." I should think, under the peculiar phraseology of this section, that the claimant must show that the money claimed was in the Treasury before the Secretary would be authorized to refund it; but, as bearing upon this question, I respectfully refer to the decision of the Supreme Court in the case of The United States vs. Crusell, (14 Wall., 1,) in which the abandoned and captured property act (12 Stat., 820) is construed. I also refer to the decision of the Court of Claims in the case of Silvie vs. The United States, (7 N. & H., 278,) which decision was affirmed by the Supreme Court without any opinion, in consequence of an equal division of the judges as to the law of the case. Very respectfully,
GEO. II. WILLIAMS.
Hon. B. H. BRISTOW,
Secretary of the Treasury.
Property of Deserting Seamen.
PROPERTY OF DESERTING SEAMEN.
Four seamen deserted from an American merchant-vessel in a foreign port, leaving in the hands of the master, besides what was due them as wages, some clothing and other effects, all of which the master delivered to the United States consul at the port on the demand of the latter. By instructions from the State Department, the consul sold the clothing, &c., and forwarded the proceeds thereof, with the amount due the seamen as wages, to that Department. No proceedings have been instituted against the seamen for the offense of desertion. Upon the question as to what disposition should be made by the Department of the money: Advised that the funds, together with a statement of such facts touching the case as may be in the possession of the Department, be transmitted to the circuit judge for the district wherein the port is in which the vessel is owned or at which her voyage terminated.
A consul has no authority to demand and receive from the master of a vessel the money and effects belonging to a deserter from the vessel. The steps which should be taken by the master, with reference to the disposition of such property, indicated.
DEPARTMENT OF JUSTICE,
SIR: From your communication of the 20th instant, I gather the following facts, which seem to be material to a consideration of the questions submitted by you:
In the month of September, 1874, four seamen deserted from the bark Bolivia at the port of Rotterdam, whither she had arrived after a long voyage. The vessel was American, out of the port of Boston. Each of the deserters left an amount of money due them as wages, and some clothing and other effects, in the hands of the master of the vessel. He delivered the money, clothes, &c., to the United States consul at Rotterdam, at his request. Under instructions from the Department of State, the consul sold the clothing and other effects of the deserting seamen, and forwarded the proceeds, together with the money due them as wages, to that Department, which now holds the fund. No proceeding has been instituted against the men for the crime of desertion, and there has been no judgment of forfeiture.
The questions are: What disposition should be made of this money, and what course should be pursued in similar cases?
Property of Deserting Seamen.
I have first to observe that the consul acted without warrant of law in demanding and receiving from the master of the vessel the money and effects of the deserters. It is only in case of the death of a seaman, and under the circumstances indicated in the second division of section 4539, Revised Statutes, that any consular officer is authorized to require the money, wages, &c., of a seaman to be delivered to him.
The proper steps for the master of the vessel to have taken on the desertion of the men are pointed out in sections 4597, 4599, and 4604, Revised Statutes. If he was unable to find and arrest them, it was his duty to take charge of and hold their clothes, effects, and wages until his arrival at the port at which his voyage terminated. At that port, which I suppose was Boston, he should, although no forfeiture was as yet declared, have delivered the balance of the property, after deducting the expenses occasioned by the desertion, to the shipping-commissioner, to be by him paid over to the judge. of the circuit court of the United States for the district of Massachusetts; for the property was held by the master as forfeited, and the law forbids the master or owner of the vessel to keep it, but directs that it shall be held by the judge of the circuit court for the purposes indicated in sections 4604 and 4610, Revised Statutes. The law does not require that there shall be an actual judgment of forfeiture before it becomes the duty of the master to pay over to the shippingcommissioner. If it were so, there would seldom be a case of forfeiture, and the fund for disabled seamen would not be benefited largely from this source.
Undoubtedly, upon being put in possession of the facts, the circuit judge would, in a case like the present, direct the district attorney to proceed according to law to obtain a judgment. But if the deserters should not appear, and cannot be found in due time so that service can be had upon them, I think the law requires that the money and the proceeds of the effects left by them with masters of vessels, after deducting expenses, &c., should go into the Treasury, to be added to the fund for the relief of sick, disabled, and destitute seamen. (Sections 4545, 4604, and 4610, Rev. Stat.)
In the present case I would advise that the fund should be transmitted, together with such facts and evidences touching
Imprisonment of Convicts of Consular Courts.
the case as may be in the possession of the Department of State, to the circuit judge for the district in which the port is where the bark Bolivia was owned, or at which her voyage terminated; and this, because such would have been the destination of the fund if the course pointed out by the law. had been pursued, and for the further reason that the deserting men may yet appear and, peradventure, show that their desertion was excusable, as in the case indicated in section 4600, Revised Statutes, or prove such a state of facts as would induce the judge to reduce the penalty.
I am, very respectfully, your obedient servant,
Hon. HAMILTON FISH,
IMPRISONMENT OF CONVICTS OF CONSULAR COURTS.
In the case of consular courts clothed with criminal jurisdiction, as in the case of other courts invested with similar jurisdiction, the rule applies, that a sentence of imprisonment cannot be legally executed beyond the territorial jurisdiction of the court which pronounced it, unless authority thus to execute the sentence is conferred by the legislature.
Hence, in the absence of any law giving power to send the convicts of the consular courts at Smyrna and Constantinople to this country for imprisonment, if such convicts were brought to the United States for that purpose they could not legally be held.
Semble that, under present statutory provisions, (see Revised Statutes, sections 4121 to 4125, inclusive,) it is contemplated that the sentences of those courts, pronounced in the exercise of their criminal jurisdiction, are to be executed only in the country where the trial and punishment were had.
DEPARTMENT OF JUSTICE,
SIR: Your communication of the 9th ultimo, in relation to three American citizens who have recently been convicted of forgery by the United States consular court at Smyrna, and another American citizen who has been convicted of the same offense by the United States consular court at Constantinople, presents for my consideration the question "as to whether, if those convicts were to be transferred to this country for imprisonment during the terms for which they were sentenced, they could lawfully be held for that purpose."
Imprisonment of Convicts of Consular Courts.
Assuming that, so far as the Ottoman government is concerned, no objection to the transportation of the convicts to this country for the purpose mentioned could properly be urged under subsisting treaty provisions, the answer to the above question appears to me to depend entirely upon whether there is any law of the United States which authorizes the sentences passed by the said consular courts, in the exercise of their criminal jurisdiction, to be carried into effect here.
With regard to courts exercising criminal jurisdiction, by authority of Congress, in the States and Territories, it has been deemed necessary that there should be some legislative provision to warrant the imprisonment of convicts of those courts outside of their respective judicial districts where local or other circumstances make it expedient to adopt this course, and instances of such a provision are found in the statutes. (See the 1st section of the act of March 27, 1854, chap. 26; the 1st section of the act of March 28, 1856, chap. 9; and the 1st section of the act of May 12, 1864, chap. 85.) The legislation just referred to proceeds upon the idea that, unless previously authorized by statute to be so carried into effect, a sentence of imprisonment could not be legally executed beyond the territorial jurisdiction of the court which pronounced it; and this accords with a familiar prin. ciple of law.
In the case of consular courts vested with criminal jurisdiction, the same rule would seem to apply; so that, to warrant a sentence of imprisonment passed by one of those courts to be executed beyond the territorial jurisdiction thereof, it may be regarded as absolutely essential that there exist at the time authority thus to execute the sentence conferred by the legislature.
After careful examination, I have been unable to find any law giving power to send to this country the convicts of either of the consular courts in question, in order that the sentence of imprisonment pronounced thereby may be carried into effect here. On the contrary, the existing statutory provisions on the subject appear to contemplate that such sentences are to be executed only in the country where the trial and conviction were had. (See Rev. Stat., sections 4121