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Mr. Olney referred to Article X. of the consular convention between the United States and Denmark of April 26, 1826, which declares that the archives of consulates are inviolable and that under no pretext has any magistrate the right to seize or interfere with them, and added: "A State court has no jurisdiction of writs against a foreign consul, such jurisdiction being specifically reserved to the Federal courts, under Article XI. sec. 2, of the Constitution. In this connection you are referred to sections 563, 687, 688, and 711 of the Revised Statutes."
Mr. Olney, Sec. of State, to Messrs. Martin & Weil, Nov. 13, 1896, 213
The Turkish consul at Boston, being charged with embezzlement in Massachusetts, was committed to prison in the city of New York by a city magistrate for thirty days to await a requisition from the governor of Massachusetts for his delivery to the agent of that State. He applied for a writ of habeas corpus in order to obtain his release. By the judiciary act of 1789, 1 Stat. 73, it was provided (sec. 13) that the Supreme Court should have "original but not exclusive jurisdiction of all suits" in which a consul or vice-consul should be a party; that the district courts should have, exclusively of the State courts, jurisdiction of all crimes and offenses cognizable by the United States, where the punishment should not exceed six months (sec. 9); that the district courts should also have jurisdiction, exclusively of the State courts, "of all suits against consuls and vice-consuls," with certain exceptions; and that the circuit courts should have exclusive cognizance of all crimes and offenses against the United States, except where otherwise provided, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein. Under these provisions it remained the accepted law until 1875 that the Federal courts had exclusive jurisdiction of offenses by foreign consuls." The provisions of the judiciary act were carried into the Revised Statutes of the United States June 22, 1874, without any substantial change, but under a different arrangement. By paragraph 8 of section 711 the jurisdiction of the State courts was excluded in all "suits or proceedings" against consuls. The word "proceedings" was new, while the word "offenses,” which was embodied in the exception in section 9 of the judiciary act, was omitted. By the act of February 18, 1875, 18 Stat. 316, paragraph 8 of section 711 was stricken out. The provisions of sections 563 and 629, Revised Statutes, conferring jurisdiction on the Federal courts in all cases against consuls, both of crimes and of suits, were left untouched, as was also paragraph 1 of section 711, conferring on the Federal courts exclusive jurisdiction of "all crimes and of
a United States v. Ravara, 2 Dall. 297; Com. v. Kosloff, 5 Serg. & R. 545 ; United States v. Ortega, 11 Wheat. 472, 473, note.
fenses cognizable under the authority of the United States." It was contended that by the repeal of paragraph 8 of section 711, which excluded the jurisdiction of State courts in "suits or proceedings" against consuls, the jurisdiction of those courts was opened to the prosecution of crimes and offenses by consuls against State laws, while, on behalf of the petitioner, it was urged that offenses by consuls were still cognizable exclusively by the Federal courts. Without deciding this question, the court held that the objection to the jurisdiction of the State courts did not apply to preliminary proceedings in interstate rendition, or to a commitment by a magistrate not acting as a court.
In re Iasigi (1897), 79 Fed. Rep. 751.
It was also held that the district judge, who had denied the writ of habeas corpus, had no power to admit the prisoner to bail pending an appeal to the Supreme Court from the order denying the writ. (In re Iasigi (1897), 79 Fed. Rep. 755.)
An appeal was taken by the prisoner to the Supreme Court of the United States from the foregoing decision. On the hearing a letter was produced from the Assistant Secretary of State, by which it appeared that, between the date of the issuance of the writ of habeas corpus and that of the order remanding the prisoner into custody, the latter was removed from office by the Turkish government. Held, that the objection to his detention, if such objection was ever tenable, which the court did "not intend in the slightest degree to intimate that it could be," no longer existed at the time of the order, and that the order therefore could not be held to be erroneous.
Iasigi v. Van de Carr (1897), 166 U. S. 391, citing, among other cases, Ex parte Hitz, 111 U. S. 766, and Nishimura Ekiu v. United States, 142 U. S. 651.
Since the repeal by the act of February 8, 1875, of paragraph 8 of section 711 of the Revised Statutes of the United States, the State courts have concurrent jurisdiction with the Federal courts of civil suits against consuls. Under section 709, Revised Statutes, the judg ment of the State courts may be reviewed by the Supreme Court of the United States on writ of error; but this right of review may be waived by the consul, either by defending in the State courts on the merits or by suffering judgment to go against him by default.
Wilcox v. Luco (1897), 118 Cal. 639; 50 Pac. Rep. 758.
It was held in this case, on July 16, 1896, that, without regard to the repeal of sec. 9 of the judiciary act of 1789, a State court could not exercise civil jurisdiction over a foreign consul, in view of sec. 2, Art. III., of the Constitution, declaring the judicial power of the United States to extend to all cases affecting ambassadors, other public ministers, and consuls." (Wilcox v. Luco, 45 Pac. Rep. 676, citing Miller v. Van Loben Sels, 66 Cal. 341.)
The case was reheard, with the result that, as above shown, the opposite
view was finally maintained.
4. THE GIVING OF TESTIMONY.
Exemption from the obligation to appear as a witness is secured absolutely by the convention with France, and, except for defense of persons charged with crime, by treaties with Austria-Hungary, Belgium, Italy, Netherlands, Roumania, Salvador, and Servia. Where the consul can not be required to appear, his testimony may be taken in writing at his dwelling. In claiming his privilege from process, he should offer to give his evidence in the mode prescribed by the particular treaty, and should throw no impediment in the way of proper administration of justice in the country of his official residence. Consular Regulations of the United States (1896), § 82, p. 32.
At the April session, 1854, of the United States district court for the northern district of California, an indictment Dillon's case. was found against Señor Del Valle, Mexican consul at San Francisco, under section 2 of the neutrality act of 1818, on a charge of enlisting or hiring certain persons to enlist as soldiers in the service of the Republic of Mexico. Among the witnesses for the defense was M. Dillon, French consul at San Francisco, who was served with a subpoena duces tecum. When the witnesses for the defense were called M. Dillon was not in court. It was found that the subpœna had been returned merely as "served," in the same form as the rest of the summonses. Defendant's counsel then asked for an attachment against the absent witness and stated that, if the court desired, they were prepared to argue their right to the attachment. Judge Ogden Hoffman, before whom the case was pending, stated, according to a contemporary report of the trial, that any argument was unnecessary; that he had reflected upon the subject and was satisfied that an attachment must issue, since the sixth amendment to the Constitution, securing to persons accused the right to have compulsory process for obtaining witnesses in their favor, although it may have been broader than it should have been, must override any claim of immunity from process, even though such claim be made under a treaty. When brought into court under the attachment, M. Dillon presented, through counsel, a protest based upon Articles II. and III. of the consular convention between the United States and France of February 23, 1853. By Article II. it is provided that consuls shall never be compelled to appear as witnesses before the courts, but that, if their testimony is desired, they shall be invited in writing to appear in court and give it, and that, if they are unable to do so, it shall be requested to be given in writing or be taken orally at their dwellings. Article III. provides that the consular offices and dwellings shall be inviolable, that the local authorities shall not under any pretext in
vade them, nor in any case examine or seize the papers therein deposited." M. Dillon stated that the paper which he was summoned to bring with him must, if in existence, have formed a part of the archives of his consulate.
The question raised by the protest was then fully argued and Judge Hoffman, changing the view which he had previously taken, held that compulsory process ought to have been refused. In rendering his decision, he stated that it was admitted by counsel for M. Dillon that, if the Constitution secured to the accused the right to process against the consul in order to secure his testimony, he could not be deprived of it by a treaty stipulation. Judge Hoffman held, however, that the sixth amendment was intended only to place the accused in the same position in making his defense as the government occupied in endeavoring to establish his guilt, and that the object of the provision was accomplished if he enjoyed equal rights with the government in compelling the attendance of witnesses. An ambassador, said Judge Hoffman, was not amenable to the laws of the country to which he was sent, and this immunity was recognized and confirmed by sec. 29 of the act of April 30, 1790. In the present case, a consul had by a treaty, which was the supreme law, been placed beyond the reach of the court's process. The cases seemed not to be distinguishable in principle, and as no discrimination was made between the accused and the prosecution, the Constitution was not violated.
In re Dillon, 7 Sawy. 561, 7 Fed. Cas. 710; Report of the Trial of Luis Del Valle, Consul of the Republic of Mexico at the Port of San Francisco, for a Breach of the Neutrality Laws of the United States, in the District Court of the United States for the Northern District of California San Francisco, 1854.
When the attachment was served on M. Dillon, he hauled down his consular flag; and the case was taken up by the French minister at Washington, as involving a gross disrespect to France. A long and animated controversy between Mr. Marcy, then Secretary of State, and the French government ensued. The fact that an attachment had issued under which M. Dillon was brought into court was regarded by the French government not merely as a contravention of the treaty, but as an offense by international law; and it was argued that the disrespect was not purged by the subsequent discharge of M. Dillon from arrest. It was urged, also, that the fact that the subpoena contained the clause duces tecum involved a violation of the consular archives. Mr. Marcy, in a letter of September 11, 1854, to Mr. Mason, then minister at Paris, discusses these questions at great length. He maintains that the provision in the Federal Constitution giving defendants opportunity to meet witnesses produced against them face
to face, overrides conflicting treaties, unless in cases where such treaties embody exceptions to this right recognized as such when the Constitution was framed. One of these exceptions relates to the case of diplomatic representatives. "As the law of evidence stood when the Constitution went into effect," says Mr. Marcy, "ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give to the defendant in criminal prosecutions the right to compel their attendance in court." This privilege, however, Mr. Marcy maintained, did not extend to consuls, and consuls, therefore, could only procure the privilege when given to them by treaty which, in criminal cases, was subject to the limitations of the Constitution of the United States. Mr. Marcy, however, finding that the French government continued to regard the attachment, with the subpoena duces tecum, as an attack on its honor, offered, in a letter to Mr. Mason, dated January 18, 1855, to compromise the matter by a salute to the French flag upon a French man-of-war, stopping at San Francisco. Count de Sartiges, the French minister at Washington, asked in addition that when the consular flag at San Francisco was rehoisted, it should receive a salute. This was declined by Mr. Marcy. In August, 1855, after a long and protracted controversy, the French government agreed to accept as a sufficient satisfaction an expression of regret by the government of the United States, coupled with the provision that "when a French national ship or squadron shall appear in the harbor of San Francisco the United States authorities there, military or naval, will salute the national flag borne by such ship or squadron with a national salute, at an hour to be specified and agreed on with the French naval commanding officer present, and the French ship or squadron whose flag is thus saluted will return the salute gun for gun.”
Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, May 30, 1854;
Under Article II. of the consular convention between the United States and France, of February 23, 1853, supra, “it is the duty of a consul, when invited to appear in court to give his testimony, to comply with the request unless he is unable to do so. This duty he violates, if he refuses without good and substantial excuse. Neither his official character, his disinclination, nor any slight personal inconvenience constitutes such an excuse. The pressure and importance of official duties requiring immediate performance may prevent his attendance in court, but such can very rarely be the case where the court sits at the place of his residence. It is not claimed that the