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It is unadvisable that interpreters, marshals of consular courts, and consular clerks, receiving a salary, should be allowed the privilege of trading, although exceptions may be made for good cause.
Consular Regulations of the United States (1896), § 37, p. 14, citing Rev. Stat. §§ 1699, 1700; and also 18 Stat. 486, to the effect that the consuls at Fayal and Auckland are exempted from the prohibition as to trading. See supra, § 697.
For a report as to consular officers engaged in business in violation of law, see H. Ex. Doc. 90, 35 Cong. 2 sess.
The United States sustained the right of consuls engaged in trade to take part in the deliberations of the consular body at Chefoo, China. (For. Rel. 1903, 82, 84.)
"Sections sixteen hundred and ninety-nine and seventeen hundred of the Revised Statutes of the United States are hereby amended to read as follows:
"SEC. 1699. No consul-general, consul, or consular agent receiving a salary of more than $1,000 a year shall, while he holds his office, be interested in or transact any business as a merchant, factor, broker, or other trader, or as a clerk or other agent for any such person to, from, or within the port, place, or limits of his jurisdiction, directly or indirectly, either in his own name or in the name or through the agency of any other person; nor shall he practice as a lawyer for compensation or be interested in the fees or compensation of any law; yer; and he shall in his official bond stipulate as a condition thereof not to violate this prohibition.
"SEC. 1700. All consular officers whose respective salaries exceed $1,000 a year shall be subject to the prohibition against transacting business, practicing as a lawyer, or being interested in the fees or compensation of any lawyer contained in the preceding section. And the President may extend the prohibition to any consul-general, consul, or consular agent whose salary does not exceed one thousand dollars a year or who may be compensated by fees, and to any vice or deputy consular officer or consular agent, and may require such officer to give a bond not to violate the prohibition.''
Act of April 5, 1906, section 6.
VI. AMENABILITY TO LOCAL JURISDICTION.
1. CIVIL PROCESS.
Consular privilege can not protect a consul as to mercantile matters engaged in by him independent of his official business.
1 Kent, 44: 2 Phill. (3d ed.), 335; Arnold v. Ins. Co. 1 Johns. 363; Indian Chief, 3 C. Rob. (Adm.) 25, 29.
It was held that Barclay, an American consul residing abroad, who had entered into partnership with another person, was not privileged from foreign attachment.
Caldwell v. Barclay et al. (Court of Common Pleas, Philadelphia, 1788), 1 Dallas, 305.
In a suit brought against a consul-general of France, for transactions of a public nature, in which he acted as the commercial agent of his country, the President has no constitutional right to interfere, but must leave the matter to the tribunals of justice.
Lee, At. Gen. 1797, 1 Op. 77.
A consul can not be held personally liable on a contract which he enters into on account of his government, the credit being given to that government.
Jones v. Le Tombe (1798), 3 Dallas, 384.
In February, 1860, Mr. Colvin, United States consul at Demerara, filed there a petition in insolvency, and Mr. Daly, administrator-general of the colony, was appointed his trustee. By the local law Mr. Daly thus became entitled to all of Mr. Colvin's assets for the benefit of the latter's creditors. In the first instance, however, Mr. Colvin declined to include in his schedule of assets his claim against the United States for salary. The court ordered him to pay over to Mr. Daly his salary and fees up to March 31, 1860, and to place on his schedule his claim for salary from that date up to the time of his ceasing to act, which was July 1, 1860. On Dec. 18, 1860, Mr. Colvin obtained, on his own petition, a final order of discharge from all liabilities previously incurred and placed on his schedule. Subsequently Mr. Colvin asked the Treasury to pay to himself his salary from March 31 to July, 1860, notwithstanding its inclusion in the schedule of assets on the insolvency proceedings. The Department of State, when consulted, replied that as a general rule British consuls in the United States and American consuls in Great Britain and her colonies" are not regarded as public ministers and do not enjoy the privilege of exterritoriality" (Phillimore, Int. Law, vol. 2, p. 260; Wheaton's Elements, 304; Consular Regulations, 13, 236, 279); that, as a result, consuls, whether engaged in trade or not, were subject to all the local remedies as between creditor and debtor, including bankruptcy process in invitum, and a fortiori voluntary; and that in such proceedings he was "subject to the local jurisdiction and to all its lawful decrees appertaining to the debts and credits of the bankrupt, including the forced surrender of choses in action.”
Mr. F. W. Seward, Assist. Sec. of State, to the Fifth Auditor of the
"Such are the principles applicable to the case," said Mr. Seward; but a final decision of the particular case was reserved, pending a further presentation of the facts.
As a consul neither in Germany nor in the United States enjoys any privilege which puts him upon a different footing in regard to his private debts from the citizens or subjects of the country in which he exercises his functions, his creditors in such country can not expect to have debts dues from him collected by means of a diplomatic appeal to his government, and such an appeal is considered irregular.
Mr. Fish, Sec. of State, to Mr. Von Schlozer, Dec. 11, 1874, MS. Notes to
In September, 1893, William L. Dunham, consular agent of the United States at Haida, Austria, left his post owing a number of debts. One of his creditors brought suit and obtained an order that certain articles, which Dunham had left behind, should be turned over to him. Dunham's successor refused, however, to deliver up the articles, which, although they were in the consular office, appeared to be Dunham's personal property. The Austrian government protested against this refusal, maintaining that by the principles of international law and the consular convention between the two countries of July 11, 1870, no such privilege was conceded; and that, while Article V. of the convention granted immunity to the archives and papers against search and seizure, this did not extend to other objects in the office of the consul. It seems that Dunham's successor, in refusing to permit the seizure of the articles in question, acted under orders from his superiors to hold them as government property, in order to cover a prior claim of the United States against Dunham for government funds illegally retained by him. The claim of the United States, however, was otherwise disposed of, and instructions were given to consider the articles thenceforth as the personal property of Dunham, and as subject to seizure to satisfy any claim against him.
For. Rel. 1894, 27-30.
The Department of State "is not in a position to declare" that under Article II. of the consular convention with Austria-Hungary of July 11, 1870, or under the most-favored-nation clause of Article XV. thereof, or under the general principles of international law, an Austrian consular officer is exempt from civil suit for indebtedness. In the case of Fromant v. Duclos, 30 Fed. Rep., 385, in which the defendant was Austrian vice-consul-general at New York, the question of official immunity was not even raised, the question being whether the United States district court had jurisdiction of the suit.
Mr. Adee, Second Assist. Sec. of State, to Messrs, Hensel, Bruckmann &
See, to the same effect, as to Haytian consuls, Mr. Gresham, Sec. of State,
In July, 1899, the minister of the United States at Quito represented to the Ecuadorean government that a subcommissary of police at Guayaquil had issued a summons to the United States consulgeneral to answer in a suit for debt; that the summons was served by an officer who entered the consulate-general without permission, and that, when the consul-general's secretary appeared in response to the summons before the subcommissary, the latter used insulting language toward the consul-general. The minister therefore requested that the subcommissary be punished for his insult to the consul-general, and the officer who served the summons for violating the sanctity of the consulate-general. In a subsequent conversation the Ecuadorian minister of foreign relations maintained that there was no cause for complaint on the part of the United States; that, while it was an offense for the officer to enter the consulate to serve a summons on the consul-general, the offense was no greater than if he had entered any private residence in the city for such a purpose; that he was liable to punishment, but only by the local law, as in other cases, and that the subcommissary of police, in using insulting language about the consul-general, was guilty of no other or greater offense than if he had so spoken of one of his fellow-citizens. With reference to this discussion, the Department of State instructed the United States minister that if the consular officers of any foreign country enjoyed by treaty with Ecuador immunity from service of judicial process in such cases, a similar immunity might be asked by the United States "as a friendly courtesy," although there was no treaty between the two countries on the subject; but that, "unless the offensive action of the Ecuadorean official while serving the summons is made punishable by some law of Ecuador especially applying to offenses against foreign consular officers, he would appear to be subject only to the general law applicable to offenses against private individuals." It was added that the United States had a special law making it a penal offense to assault or offer violence to the person of a public minister, in violation of the law of nations, but that there was no such law applying to consular officers.
Mr. Hay, Sec. of State, to Mr. Sampson, min. to Ecuador, Oct. 5, 1899,
The consul-general subsequently reported that he was aware that he was
had, on a recent visit to Guayaquil, censured the subcommissary of police and expressed regret for the occurrence, and that the subcommissary had since been succeeded in his office by another person. (For. Rel. 1899, 262-263.)
2. CRIMINAL PROCESS.
The Genoese consul at Philadelphia was indicted in 1793 for a misdemeanor for sending anonymous and threatenCase of Genoese ing letters to Mr. Hammond, the British minister, consul. and other persons, with a view to extort money. Defendant's counsel moved to quash the indictment on the ground that the Supreme Court of the United States had exclusive cognizance of the case, under section 2 of Article III. of the Constitution. The judges, Wilson and Peters, Judge Iredell dissenting, rejected the motion to quash on the ground that the original jurisdiction of the Supreme Court was not exclusive. It is stated in a note of the reporter that the defendant was tried at the April session of the circuit court, 1794, before Jay, Chief Justice, and Peters, J. At the trial counsel for the defendant contended (1) that the matter charged was not a crime at common law, and was not made criminal by any statute of the United States; (2) that a criminal proceeding ought not to be maintained against a person possessing the official character of the defendant. The court held that the offense was indictable and that defendant was not privileged from prosecution. The jury found him guilty; but he was afterwards pardoned on condition (as it was said) that he surrender his commission and exequatur.
United States v. Ravara (1793, U. S. circuit court, Phila. Dist.), 2
Cited in Valarino v. Thompson (1853), 7 N. Y. 576, 579.
November 24, 1815, Mr. Kosloff, Russian consul-general at Philadelphia, was arrested on the charge of having ravished a girl of twelve years, who was a servant in his family. He was brought before a justice of the peace, who was not legally empowered to take bail in cases of that class, and, on a prima facie case being shown, was committed to jail to await trial. He remained in prison till the afternoon of November 25, when he was brought on habeaus corpus before Chief Justice Tilghman, who admitted him to bail and appointed Monday, the 27th of November, for a hearing. The hearing took place before Chief Justice Tilghman, at chambers. The prosecutrix and two other witnesses were examined. The Chief Justice declared it to be his opinion that the evidence was not such as could secure a convicH. Doc. 551-vol 5—5