Mr. Lapaugh to Baron Gerolt. 62 WALL STREET, New YoRK, January 18, 1867. SIR: From a perusal of your private notes to Mr. Consul Janssen, respectively of the 2d and 3d of January instant, I observe that the State Department would not give a decision upon the motion to recall the revocation of the exequatur of Mr. Janssen until they receive the explanation of the lawyers on the other side, in reply to my report submitted through you to Mr. Secretary Seward. To-day I am surprised to see, by your official letter to the consul of the 16th of this month, that, without any such explanation, Mr. Secretary Seward stated to you, "We don't want consuls who refuse to appear before our judges on account of their privileges;" which implication, that Mr. Janssen so refused, you very properly denied. Considering the tortuous course pursued in the matter by the lawyers of the other side, we think it quite likely that, after having made the suggestio falsi, they may have availed themselves of a suppressio veri in omitting to render the explanation called for. Being confident that Mr. Janssen is entirely correct, both as to the law and the fact, in the course of the action which he, as consul of Oldenburg, has felt it as his duty to pursue, and that any statement concerning the same made to the State Department could be successfully met, opportunity therefor being afforded, and regarding the necessities of commerce at the port of New York, I would now most respectfully request your excellency, if you deem it proper to do so, again to urge upon the honorable Secretary the importance and justice of restoring Mr. Janssen to the exercise of his rights and privileges as the consul of Oldenburg at New York, of which he was deprived evidently upon misinformation as to the case. I have the honor to remain, very respectfully, your obedient servant, His Excellency Baron VON GEROLT, of Prussia, Washington, D. C. Baron Gerolt to Mr. Lapaugh. WASHINGTON, January 26, 1867. SIR: I have received your letter of the 18th instant, and beg to say, in answer, that I have no authority to interfere officially in the question about the exequatur of the consul of Oldenburg; and having failed in my private exertions with the Secretary of State to obtain justice for Mr. Janssen, I wrote to the latter that he must make use of some other influence to obtain the revocation of the President's proclamation of the 26th December last, revoking the exequatur of Mr. Janssen. I am, sir, very respectfully, your obedient servant, H. D. LAPAUGH, Esq., 62 Wall street, New York. Mr. Lapaugh to Mr. Seward. FR. VON GEROLT. NEW YORK, January 31, 1867. SIR: In the case of Gerhard Janssen, esq., I had the honor, as his counsel, on the first day of this month, to submit to you, by the hands of his excellency the Baron Von Gerolt, his Prussian Majesty's envoy extraordinary and minister plenipotentiary at Washington, an application for the recall of the proclamation of his Excellency the President of the United States revoking the exequatur of Mr. Janssen as the consul of Oldenburg at New York. As no answer has, as yet, been received to that application, I beg hereby respectfully to renew the request for the granting of the same as an act of public justice, due not only to his Royal Highness the Grand Duke of Oldenburg, as well as to Mr. Janssen in his official character, but also due to him as an act of common justice with reference to the protection of his private interests in the only way that such protection is, under the Constitution and laws of this country, guaranteed to a foreign consul here. Fully estimating, moreover, the vast importance of the international and legal question involved, I have deemed it compatible with my duty, on this occasion, to lay before you certain additional considerations bearing upon the case, which very likely might have been embodied in my former communication to you on the subject, but for the limited space of time allowed for the preparation of that paper. By the Constitution of the United States (art. 3, § 2) it is ordained that "the judicial power of the United States shall extend to all cases affecting consuls;" and in pursuance of this organic law, it is enacted by the Congress of the United States (1 U. S. Statutes at Large, p. 76, § 9) "that the United States courts shall have jurisdiction, exclusively of the courts of the several States, of all suits against foreign consuls." Conformably therewith, upon the request of the President of the United States. for the opinion of the late United States Attorney General, the Hon. B. F. Butler, "as to the immunities of foreign consuls in the United States under the laws of nations and the Constitution and laws of the United States," the Attorney General, after careful consideration of the subject, replied, (2 Opinions, p. 725,) "that foreign consuls in the United States are entitled to the immunities of being sued and prosecuted exclusively in the United States courts, under the jurisdiction conferred on them by the Constitution and laws of the United States." To the same effect is the opinion given in the case of the Spanish consul Villavaso, of the distinguished United States Attorney General Wirt, who therein. states, (1 Opinions, p. 406,) that our Constitution and laws, contemplating the responsibility of consuls to the jurisdiction of our courts, have provided the tribunals before which they may sue and be sued or prosecuted; these are the tribunals of the nation, before which alone, in exclusion of the State courts, consuls are bound to answer." It has long since been settled that the exemption of consuls from the jurisdiction of the State courts is not his personal privilege, neither can it be waived by him, (Davis vs. Packend, 7 Peters's U. S. Rep., 276.) The highest court of the State of New York has, likewise, adjudicated that such exemption is not the personal privilege of the consul nor of his government, and that it caunot be waived by his appearing in an action in the State court and pleading to the merits. (Valarino vs. Thompson, 3 Reed's N. Y. Rep., p. 576.) So absolutely are the State courts without any authority to exercise jurisdiction over foreign consuls, that the superior court of the city of New York determined (2 Duer's Rep., p. 658) "that it is the duty of a State court, whenever the fact that a defendant in a suit is a foreign consul is brought to its knowledge, to confess at once its want of jurisdiction, and to declare its proceedings to be void. Where the exercise of jurisdiction is a violation of law, and cannot be justified by the submission or consent of the parties, all the proceedings, as coram non judice, are wholly void. As an instance of the utter want of competency in the State courts to afford a foreign consul in New York the benefit of the same laws and usages to which private citizens of the United States are entitled in the same place, permit me now to call your attention to the following striking practical illustration, namely: In July, 1858, in an action commenced in the supreme court of the State of New York, an injunction was granted in favor of one William G. Taaks, plaintiff, against the above-mentioned Gerhard Janssen, John W. Schmidt, Edward Von der Heydt, and others, defendants, restraining the defendants from interfering with certain personal property, amounting to some $10,000. The defendants all obeyed the injunction, by means of which the aforesaid property all passed into the possession of the plaintiff, who sold the same and received the proceeds thereof. After a severe and protracted litigation of nearly two years, a decision was rendered in the action in favor of the defendants against the plaintiff. Thereupon the plaintiff suggested, by affidavits, to the court, that the defendants above named, and for whom my firm of Fincke & Lapaugh appeared as attorneys, were foreign consuls, and then moved the court upon that ground to be permitted to discontinue his said action without costs to himself, the plaintiff. That motion was opposed by me as counsel for the defendants, and in support of that opposition I submitted to the court, especially on behalf of the consuls, defendants, these two distinct points, viz: 1. That as the defendants had faithfully obeyed the injunction, and thereby been deprived of the property in suit, and the plaintiff had by virtue thereof succeeded in obtaining the same, he certainly ought to be estopped under the circumstances from objecting to the jurisdiction of the court on account of the consulship of any of the defendants. 2. That, as I offered, in open court, to waive and renounce on behalf of the consuls, defendants, all and every objection to the jurisdiction of the court arising out of such consulship, the defendants were all entitled to remain in court and invoke the benefit of the law, in like manner and upon the same terms as if none of them were consuls. The court, however, decided otherwise, and held it had no alternative or discretion in the matter, but that the law was imperative that the State courts did not possess, and could not acquire, any jurisdiction over any foreign consul, either by his appearance, consent, waiver, or renunciation of any kind whatever. Mr. Justice Leonard employed the following language in rendering the said decision: 66 The defendants, John W. Schmidt, Gerhard Janssen, and Edward Von der Heydt, are each consuls of different foreign governments, accredited to this country, and by virtue of their office the plaintiff is barred from the right of maintaining any action against them in any State court. * * "The action must be dismissed, as to the three defendants who are consuls, without costs to either party as against the other."—(Taaks vs. Schmidt, 19 How. N. Y. Reports, p. 413.) And, accordingly, Mr. Janssen, after a long and expensive litigation, resulting in his favor if allowed to stand, was, upon the sole ground of his consulship, at the instigation of the plaintiffs, summarily dismissed out of court with his own costs of $1,000, to be paid by himself, in addition to the loss of the property of which he and the other defendants had been wrongfully deprived by the action of the State court. Looking, therefore, at the injurious and irremedial consequences inflicted on Mr. Janssen, in the instance just cited, and to the risk and repetition of which he is unavoidably exposed or subjected whenever he is prosecuted in any other than the national tribunals, and in the face, too, of the conclusive judgment of the supreme court of New York pronounced in the premises, it is difficult to suppose, certainly unreasonable to expect, that Mr. Janssen would, upon the institution in the same court of the suit of Humphrey et al. against him, do less than he did, namely, to bring to the attention of the court, by a verbal communication through me, the fact that he was the consul of Oldenburg at New York, and which communication, it may be here remarked, constitutes the only act on the part of Mr. Janssen done in the case in regard to the consulship; for, although the proclamation by the President, revoking the exequatur, alleges that Mr. Janssen "refused to appear in the supreme court of the State of New York to answer in a suit there pending against himself and others, on the plea that he is a consular officer of Oldenburg, thus seeking to use his official position to defeat the ends of justice," nevertheless, the truth is that Mr. Janssen did duly appear in that suit, by notice in writing, service of which was admitted in writing by the plaintiffs' attorneys, as early as the 31st of December, 1865; that Mr. Janssen did answer in that suit by a written plea, service of which was admitted in writing by the plaintiffs' attorneys on the 19th of February, 1866; that by such plea Mr. Janssen did not seek to use his official position to defeat the ends of justice; on the contrary, Mr. Janssen did not by his answer or plea in said suit take any objection to the jurisdiction of the court, but waived, so far as it could be possibly done under the laws of New York, every objection to the jurisdiction of the court. Concerning the charge about defeating the ends of justice, it can be rightly imputed only to those who, in violation of all law, whether Union or State, prosecute a foreign consul in a State court, being a tribunal where the consul has no rights which that court is bound to respect, and where, for want of authority, the court could not, even if so disposed, award justice to a consul, however meritoriously he might be entitled to it, and which he would receive if a mere private citizen of the United States. The idea that the President of the United States would use his high official position to coerce or keep a foreign representative in a court of law where he cannot be heard or is not entitled to be regarded as standing on equal footing with the private individuals of the United States, is not for a moment to be tolerated, especially when there is an existing court, namely, the United States court-a tribunul in which all the parties can, on the same terms, be equally recognized and have impartial justice administered to them respectively. Now, Mr. Janssen, as consul, thus insisting upon the withdrawal of the revocation of his exequatur, of course, is careful not to anticipate or prejudice the action of his government in the matter. Yet, while leaving it to his government to adopt such measures as it may deem proper, he feels it incumbent upon him more particularly to have your attention directed to the serious question of principle here arising, whether the unilateral action of the President in revoking the exequatur is, after all, consistent or reconcilable with the express stipulations of the treaty between the two nations, by which the liberty is granted to his Royal Highness of having in the port of New York a consul of his own appointment, who shall enjoy the same privileges and powers as those of the most favored nations. This treaty being supreme law of the land, (United States Constitution, article 1, section 2,) and, as such, the President being required to take care that it be faithfully executed, I have hereby, on behalf of Mr. Consul Janssen, earnestly to insist that the exequatur granted to him as consul of Oldenburg is not liable to revocation at the mere option of the President, or without the consent of the government of Oldenburg. .It is laid down as one of the first axioms of the United States government that the President possesses no powers but those derived from the Constitution and laws of the United States; and these give him no authority to interfere in the case of Mr. Janssen, or to puuish him for a strict observance of the law of the country to which he is accredited. Mr. Janssen has good reason, also, for complaint in this, that his exequatur was revoked not only without any just cause, but also without his having afforded to him an opportunity of being heard, and without being furnished with the name of the person on whose representation or motion the exequatur was so revoked. Had he been afforded an opportunity of being heard in the matter, Mr. Janssen is confident he could have satisfactorily shown that the representa tions of the informant were without. foundation, and thus Mr. Janssen would have been able to sustain and justify his entire course. While, therefore, the consul of Oldenburg at New York is quite ready to believe that the government of the United States acted, in the matter of revoking his exequatur, upon misinformation as to the facts, and under a misapprehension as to the law of the case, yet, in that circumstance, he finds only the stronger reason for calling upon the executive authority of the United States to withdraw the revocation, and to restore him to the full exercise and enjoyment of all the functions, powers, and privileges heretofore allowed him as consul of the nation of Oldenburg. Not doubting that it will be the pleasure of the government of the United States to take early steps for repairing the injustice which it has inadvertently done Mr. Janssen, I have the honor to remain, sir, with assurance of the highest esteem, very respectfully, your obedient servant, Hon. WILLIAM H. SEWARD, HENRY D. LAPAUGH, Counsel, &c. Secretary of State of the United States, Washington, D. C. Report of E. Peshine Smith, examiner of claims. To the Secretary of State: In the matter of Gerhard Janssen, esquire, late consul of Oldenburg at New York, I find the fact admitted by the counsel for Mr. Janssen, in his letter of the 31st December, 1866, to the Secretary of State, that the fact of Mr. Janssen being a consul was stated by his counsel to a judge of the supreme court of New York, when opposing a motion made by the plaintiffs, in a suit in which Mr. Janssen was a defendant, for the examination of Janssen as a witness. The effect of this statement was that the order for his examination was denied. The counsel, however, declined, as he states, to make a motion for the dismissal of the plaintiffs' action, though the judge intimated the propriety of such a proceeding. The result is that the plaintiffs have been deprived of evidence which they deemed essential, by the assertion, in Mr. Janssen's behalf, of his consular character. I understand Mr. Janssen's exequatur to have been revoked for the reason that, being engaged in business, he made use of his consular character to obtain exemption from giving testimony which would have been exacted from a private person. I can see nothing in the subsequent representations in behalf of Mr. Janssen which brings into doubt the main fact upon which the revocation of his exequa tur was grounded, nor anything in the circumstance of his being a party to the action to entitle him to any greater favor than if he had withheld his testimony in a suit between third persons. E. PESHINE SMITH, Mr. Seward to Mr. King. DEPARTMENT of State, Washington, February 3, 1867. SIR: I enclose a copy of a letter of the 31st ultimo, addressed to this depart ment by Mr. Henry D. Lapaugh, of New York, the counsel of Mr. Gerhard |