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inssen, late consul of Oldenburg there, relative to the case of James Humphrey d Francis M. Bixby against Janssen and other members of the commercial use in which he is a partner. Mr. Lapaugh states that the facts of that case 've been imperfectly represented to this department, and that if they had been operly understood the exequatur of Mr. Janssen would not have been withawn. I will thank you for such information or observations as may show that that proceeding no injustice was done to Mr. Janssen. I have the honor to be, sir, your obedient servant,
WILLIAM H. SEWARD. Hon. HORATIO King, Washington.
Mr. Lapaugh to Mr. Seward.
62 Wall Street,
New York, February 9, 1867. SIR: Last week I had the honor to transmit to you by mail a communication, ated the 31st ultimo, relative to the case of Gerhard Janssen, esquire, as consul i Oldenburg, and now I have respectfully to request you to inform me whether ou have received that communication.
With assurance of high esteem, I remain, very respectfully, your obedient ervant,
HENRY D. LAPAUGH,
Counsel to the Consulate of Oldenburg. Hon. William H. SEWARD,
Secretary of State of the United States, Washington, D. C.
Baron Gerolt to Mr. Seward.
February 13, 1867.. The undersigned, envoy extraordinary, and minister plenipotentiary of his sajesty the King of Prussia, has the honor to inform the honorable W. H. eward, Secretary of State of the United States, that in virtue of the treaty of eace concluded between the kingdoms of Prussia and of Saxony, the 2d )ctober, 1866, his Majesty the King of Saxony has conferred upon his Lajesty the King of Prussia the diplomatic representation of the interests f his government and of his subjects near the governments of foreign ountries where there is a Prussian legation, without there being a diplomatic epresentative of Saxony.
In conformity with this treaty the undersigned has been charged by his overnment to represent the interests of the government, and of the subjects of Saxe Royale,” in the same manner as those of Prussia.
According to these instructions the undersigned finds himself obliged to call he attention of the honorable Secretary of State to the statement hereto annexed, ontained in the New York Herald of the 9th of this month, relative to the lecision given by Judge Leonard, of the supreme court of the State of New York, in the immunities from jurisdiction which foreign cousuls enjoy in the United States.
According to this statement, the consul general of the kingdom of Saxony, Mr. Leopold Schmidt, had been summoned before said court to be examined in a
litigated affair. Mr. Schmidt's attorney having observed that the courts of justice of the State of New York had no jurisdiction over foreign consuls, in conformity with article 3, section 2, of the Constitution of the United States, and the judiciary act of 1789, Judge Leonard declared that he agreed in that opinion, which is also sustained by the following opinions of jurisconsults well known in the United States :
“The district courts shall also have jurisdiction, exclusively of the courts of the several States, of all suits against consuls or vice-consuls, except for offences above the description aforesaid."
Brightley's Digest, page 231, note. A State court has no jurisdiction of a suit against a consul, and whenever this defect of jurisdiction is suggested the court will quash the proceedings.
Manhardt is. Soderstrom, 1 Biven, 138. Commonwealth rs. Rosloff, 55 and R. 545. This privilege is not a personal one, but that of the country or government which the consul represents.
Davis vs. Packard, 7 Peters, 284. By the proclamation of the President of the United States, of 26th December last, the excquatur was withdrawn from the consul of the Grand Duke of Oldenburg, Mr. Janssen, at New York, declaring that he had refused to appear before the supreme court of the State of New York, with the intention of rendering illusory the ends of justice through his consular immunities, (seeking to use his official position to defeat the ends of justice;) and as it is to be presumed that the same proceeding will be taken in respect of the consul general of Saxony, who is in like case as the consul of Oldenburg, the undersigned permits himself to ask the honorable W. H. Sew. ard upon what principle of international law, or on what law of the United States, the revocation of the exequatur of the consul of Oldenburg was based in the aforesaid proclamation.
The undersigned requests the honorable Secretary of State to give him information on this subject, and seizes this occasion to reiterate to the honorable W. H. Seward the assurances of his most distinguished consideration.
FR. V. GEROLT. Hon. William H. SEWARD,
Secretary of State of the United States, Washington.
[Extract from the New York World of February 9, 1867.]
Supreme Court-Chambers,—Before judge Leonard. Francis Bixby et al. vs. Leopold Schmidt. This is a second application by the plaintiffs to compel the acting consul general of Saxony to appear before the court and be examined before trial, pursuant to sections 390 and 391 of the code.
Mr. H. D. Lapaugh, the counsel for the Prussian government, appeared on behalf of the King of Saxony and for the consul general, Mr. Schmidt, and submitted that the State court did not possess, and could not acquire, any jurisdiction over a foreign consul; that article 3 of section 2 of the Constitution of the United States, and the judiciary act of 1789, are conclusive upon that subject; that foreign representatives can only be prosecuted in United States courts.
Judge Leonard coincided with the suggestion that the State court had no jurisdiction, and that it had been previously decided by him in an action against Mr. Janssen, the consul general of Oldenburg ; that the court was absolutely without any jurisdiction against a foreign consul, and was bound, upon the fact of his consulship in any way coming to the attention of the court, to so declare. The judge then asked Mr. Lapaugh whether the Prussian government repre
inted at Washington the interests of the government of Saxony, to which Mr. · apaugh replied that it did.
The counsel for the plaintiffs insisted that Mr. Lapaugh, as counsel for the overnment, should make an affidavit that Mr. Schmidt was the consul of axony.
Mr. Lapaugh remarked that the court was bound to take notice judicially on le appointment of foreign representatives. The judge said he had no doubt f the statement made by Mr. Lapaugh that Mr. Schmidt was consul, duly redited, and he should excuse him for the present from making any affidavit on he subject.
It is understood that the matter will be considered by his excellency Baron 'on Gerolt, Prussian envoy at Washington, as it is becoming important that le rights of consuls in the State courts should be fully settled as between the overnment of the United States and foreign governments. The court therepre laid the matter over until next Friday.
Torrence, Spaulding, Richards (Richardson,) for plaintiff'; H. D. Lapaugh or defendant.
Mr. Seward to Mr. Lapaugh.
DEPARTMENT OF STATE,
Washington, February 15, 1867. Sir : In reply to your letter of the 9th instant, I have to inform you that the revious communication to which you refer, relative to the case of Gerhard Jangen, esq., of date the 31st ultimo, was received at this department on the 4th nstant. I am, sir, your obedient servant,
WILLIAM H. SEWARD. HENRY D. LAPAUGH, Esq.,
No. 62 Wall Street, New York.
Mr. Seward to Baron Gerolt.
Departmext or STATE,
Washington, February 16, 1867. The undersigned, Secretary of State of the United States, has the honor to cknowledge the receipt of the note of Baron Gerolt, envoy extraordinary and ninister plenipotentiary of his Majesty the King of Prussia, of the 13th instant, tating that, pursuant to the treaty of peace between Prussia and Saxony of he 2d of October last, his Majesty the King of Saxony conferred on his Majesty the King of Prussia the diplomatic representation of the interests of the former kingdom in countries where there was no diplomatic representative of Saxony, and that Baron Gerolt had accordingly been instructed to take charge of the interests of Saxon subjects in this country in the same way as if they were Prussian subjects.
Baron Gerolt then proceeds to invite the attention of the undersigned to a newspaper report of a summons of Mr. Leopold Schmidt, consul general of Saxony, for examination before the supreme court of New York in a suit pending there. This summons is represented to have been objected to by the counsel of Mr. Schmidt as a violation of the consul general's official privileges, and Baron Gerolt, pursuant to an apprehension which he intimates, that the exequatur of Mr. Schmidt may be withdrawn in consequence of that objection, asks upon what principle of international or municipal law such a proceeding would he founded."
In reply, the undersigned has the honor to express his surprise that a diplomatist of the acknowledged prudence and great experience of Baron Gerolt should have accidentally been betrayed into the irregularity of making a newspaper report the foundation of a formal diplomatic representation. The surprise of the undersigned is inereased by the further irregularity in the baron's communication that he should anticipate what may be the decision of this government in a given case, and ask beforehand for the legal grounds of that decision.
The undersigned has the honor to inform Baron Gerolt that if in any erent it should be deemed advisable to withdraw the exequatur of the consul general of Saxony, due notice of that proceeding will be given to the government of Prussia, to tbe end that an appointment of some acceptable person to fill the vacancy may be made by that government. It is considered ibat it would not be proper or customary to anticipate a proceeding of that sort.
The undersigned avails himself of this opportunity to renew to the Baron Gerolt assurance of his high consideration.
WILLIAM H. SEWARD. Baron Vo. GEROLT, 8c., fr., fc.
Baron Gerolt to Mr. Scward.
LEGATION OF PRUSSIA,
Washington, February 20, 1867. The undersigned, envoy extraordinary and minister plenipotentiary of his Majesty the King of Prussia, has had the honor to receive the note of the honorable Secretary of State, Mr. W. H. Seward, of the 16th of this month, in answer to his of the 15th, in which the honorable Secretary expresses his surprise that, “ on the authority of a public report in a New York journal, on a litigated matter before the supreme court of the State of New York against the consul general of Saxony, Mr. L. Schmidt, in which the question of consular privileges in respect of the courts of the States was decided," the undersigned should have asked from the honorable Secretary of State information on the principle of international law, or. of the laws of the United States, on which was based the revocation of the exequatur of the consul of the grand duchy of Oldenburg, promulgated by the proclamation of the President of the United States of twenty-sixth December last.
In reply to this note the undersigned has the honor to observe to the honorable W. H, Seward that the question which he thought it his duty to address to him on that occasion was not caused, as Mr. Seward says in bis note, by the reclamation of Mr. Schmidt's counsel against a violation of privilege in respect of said consul, but by the decision made by the judge of the supreme court, Mr. Leonard, on a question of great importance, concerning the privileges of all foreign consuls in respect of the courts of the States in which they reside.
As the decisions of the courts of New York are generally published in the newspapers of that city under the official rubric “ Courts of Law," the under signed has not thought it necessary to present to the honorable Secretary of State an authenticated copy of the aforesaid decision of Judge Leonard, and the less because the like decision had already been made by the same judge and by other judges of the State of New York on this question of consular privileges.
l'he undersigned prays the honorable Mr. Seward to remark that, in his note of the 15th of this month, he has not asked to be informed in anticipation on vhat principle of international or municipal law the revocation of the exequatur if the consul general of Saxony might be founded, but he thought he could ask he information as to the motives which have brought about a fact consummated, hat is to say, the published revocation of the exequatur of the consul of Oldenburg, in which that consul, belonging to the most respectable class of foreign nerchants in New York, was accused of having sought to evade the ends of ustice by means of his consular privilege.
According to a declaration such as this it seems that the honorable Secretary of State does not recognize the privilege of foreign consuls in question, notwithstanding the judicial authorities above quoted. This question being of the greatest importance to the international relations of Prussia and other German states with the United States, it is difficult to comprehend the surprise of the honorable Mr. Seward that the undersigned, without pretension to the prudence and diplomatic experience that the honorable Secretary of State has been pleased to attribute to him, should address himself to the knowledge of Mr. Seward, so generally recognized in matters of international law, to be enlightpned on the legal reasons which dictated the revocation of the exequatur of Mr. Janssen, consul of Oldenburg.
The undersigned had not any other purpose than to obtain needful information on the subject, in order to put on their guard the consuls of Prussia and of other German states who have received exequaturs from the President, against the judicial decisions in favor of their privileges, and to place them in position to avoid, in their ignorance of the true position which they occupy toward the federal government, the severity of a proclamation by the President because of imaginary immunities they might reclaim; but as the honorable Secretary of State is of opinion that it is neither befitting or usual to give information to a representative of a friendly government on a question so important to all consular representatives in the United States, and as he qualifies as irregular the question which the undersigned has asked him, it only remains for him to take note of the negative response given by the honorable Secretary of State, and to leave to the consuls of his nation the care of addressing themselves directly to the judicial authorities of the United States competent to render available their imaginary rights to privilege under the Constitution and laws of the United States.
From the point of view at which the undersigned has had to look at and present this question, under existing circumstances, the Hon. W. H. Seward will judge of the surprise which the undersigned felt in his turn, on learning, by the note from the honorable Secretary of State of the 16th instant, that he had not the right to ask for information on the subject of the revocation of the exequatur of a consul of his nation; that such a request was considered as irregular, not befitting, and contrary to diplomatic usages; and that in case it should be deemed suitable to withdraw the exequatur of the consul general of Saxony, the honorable Secretary would give the notification thereof directly to the royal government, in order that it might appoint an acceptable person in his place.
The government of the King can only remark with regret that the Hon. W. H. Seward, in his note of 16th instant, appears to consider as an international principle a practice little known among friendly governments, that of suspending the functions of a foreign consul without giving notice to the diplomatic representative of his country, and without making the measure known, in this manner depriving him of the faculty of making, in certain cases and in the interest of the relations of good understanding between the two countries interested, representations against the severity of a measure which might have been occasioned by partial denunciations by interested persons, or by facts presented under false colors, against the consul aggrieved.
S. S. Ex. Doc. 1- 3