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tion of rape; but, as there was a positive oath to the fact, he bound over Mr. Kosloff on bail of $500 to the next session of the court of oyer and terminer, which was to meet in January, 1816, and also bound over the witnesses to appear and testify. Mr. Kosloff and the father of the girl were also, respectively, bound over to keep the peace and be of good behavior. An indictment was found at the January session of the court; but on motion of the defense it was dismissed by Chief Justice Tilghman, Judge Breckinridge sitting with him, on the ground that, as the defendant was a consul, cognizance of any offense charged against him belonged exclusively to the Federal courts. The judicial proceedings then ceased. Rape not being then a crime by Federal statute, the Attorney-General of the United States gave an opinion that the Federal courts could not take cognization of the offense.
While the proceedings were pending, on December 23, 1815, Mr. Monroe brought them to the attention of Mr. Harris, chargé d'affaires of the United States at St. Petersburg, who was instructed that consuls could claim no exemption from the local jurisdiction on account of crimes, but that the rights of the accused would be duly observed. It appeared, besides, that Mr. Ingersoll, United States district attorney at Philadelphia, was instructed to act in Mr. Kosloff's behalf. On March 20, 1816, however, Mr. Harris reported that Count Nesselrode had declared that Mr. Kosloff had been arrested under the most aggravating circumstances, that the incident had wounded the honor of Russia, and that he had it in charge to request Mr. Harris not to appear at court till reparation was granted. It seems that the proceedings had been represented both by Mr. Kosloff and by Mr. Daschkoff, the Russian diplomatic representative at Washington, as being without foundation, and in disregard of what was due to the former's official station. Mr. Daschkoff indeed, besides urging a trial on the merits, maintained that Mr. Kosloff was, as consul-general, exempt from the local jurisdiction, and went so far, when the United States declined to grant reparation, as to declare his mission at an end. The views of Mr. Daschkoff as to Mr. Kosloff's official immunities appear not to have been shared by the Russian government; and full explanations were made by the government of the United States to show that the proceedings had not only been strictly in accordance with law, but that the United States had itself taken measures to assure to Mr. Kosloff all the rights he could claim.
Mr. Ingersoll, I'nited States district attorney at Philadelphia, to Mr. Mon
roe, Nov. 25, 1815, MS. Misc. Let.; same to same, Nov. 28, 1815, id. ; Mr. Monroe, Sec. of State, to Mr. Harris, chargé d'affaires at St. Petersburg, Dec. 23, 1815, MS. Inst. U. States Ministers, VIII. 17; Mr. Ingersoll to Mr. Monroe, Jan. 27, 1816, MS. Misc. Let. ; same to same,
Feb. 28, 1816, id. ; same to same, March 17, 1816, id. ; Mr. Harris to
Notes to For. Legs. II. 180.
final explanations of the United States, Mr. Daschkoff informed Mr.
Ministers, VIII. 117.)
the circumstances of the case at length. In this note he states that
ing in the State courts against his prosecutors. For the opinion of Chief Justice Tilghman, dismissing the indictment, see
Com. v. Kosloff, 5 S. & R. 545.
“Even ministers of the highest grade, in cases of great enormity, are subject to the penalty of the law, according to the law of nations. Consuls can claim no exemption from it.”
Mr. Monroe, Sec. of State, to Mr. Harris, chargé d'affaires at St. Peters
burg, Dec. 23, 1815, MS. Inst. l'. States Ministers, VIII. 17. This statement related to the foregoing case, but it was afterwards
qualified, as seen below.
“How far ambassadors and public ministers themselves are exempted by the law of nations from punishment for crimes of this nature by the laws of the country in which they reside may perhaps with some be doubtful; but this is foreign to the present purpose. Consuls, it is believed, are not exempt from such punishment. This opinion is supposed to be warranted by the weight of authority in those commentators on public law whose opinions are alike respected in Europe and the United States, and by the general admission and practice of European nations. Consuls are undoubtedly entitled to great respect, as bearing the commissions of their sovereign, but their duties are of a commercial nature, and their public character subaltern; neither their persons nor their domiciles have heretofore been protected, as have those of ambassadors and other public ministers.
" Instances are not wanting in which some of them have been brought within the jurisdiction of our courts. It is not known that it has ever yet laid the foundation of any charge of a breach of privilege or infringement of public law on the part of any of the governments of Europe, whose commissions these consuls may respectively have borne. For a recapitulation of some of these instances, I beg leave to refer you to the report made to me by the attorney of the United States at Philadelphia. I also beg leave to refer you, with the like view, as well as for an elucidation of other topics connected with this dispatch, to the opinion at large of that very respectable magistrate, the chief justice of Pennsylvania, contained in the folio document, and numbered 20. One of the instances set forth in the attorney's report, and known to this Department to be authentic, deserves to be particularly adverted to. It was the case, not of a consul, but of a commissioner of Ilis Britannic Majesty, under the sixth article of the treaty of amity, commerce, and navigation between the United States and Great Britain, made at London in the year 1794.
"A British subject, clothed with a commission from his King, under this article (whereby, as it is conceived, he stood upon a footing certainly not inferior in dignity to a consul), was subjected to a process issuing from a court in Philadelphia, and took his trial before a jury on the charge brought against him. The government of England did not complain of the proceeding."
Mr. Monroe, Sec. of State, to Mr. Harris, July 31, 1816, MS. Inst. U.
States Ministers, VIII. 89.
In 1834 Mr. (roxall, United States consul at Marseilles, dismissed
a domestic from his employ, and, on her refusing Croxall's case.
to leave the house, forcibly ejected her. She brought proceedings, civil and criminal, against him, alleging that he had severely beaten her and broken her arm. He was arrested and imprisoned thirteen days before trial, no bail being taken. He was acquitted on the criminal charge, but was required to pay 2,000 francs damages and the costs of suit. Dec. 6, 1836, the American minister
at Paris was instructed as follows: “It is believed that under the laws and usages of France favors and exemptions are extended to foreign consuls, and that in conducting his defense Mr. Croxall's proper course [in a proceeding against him for assault] would have been to plead the privileges of his official character. However this may be, the imprisonment of an American consul residing in a foreign court is a serious evil and inconvenience, not only as lessening his influence as an officer of his government, but as calculated to produce, in some cases, injurious effects on the interests of American citizens confided to him, and to reflect dishonor on his country. It is, also, an infraction of the law of nations. Vattel says (vol. 2, chap. 2, § 3+) that a sovereign ‘by the very act of receiving a consul, tacitly engages to allow him all the liberty and safety necessary in the proper discharge of his functions, without which the admission of the consul would be insignificant and deceptive.' And, again, speaking of consular functions, the same author observes that they seem to require that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violates the laws of nations by some enormous misdemeanor. Our Constitution recognizes this doctrine by providing that in all cases affecting consuls the Supreme Court alone shall have original jurisdiction."
April 13, 1838, however, Mr. Forsyth wrote that if, as appeared to be the fact, Mr. Croxall “ stood upon the same ground as all other foreign consuls whose governments had not entered into conventional stipulations with France to secure to those functionaries certain privileges and immunities, the United States have no special reason to complain of the course of proceeding against him. It nevertheless appeared to the President that the imprisonment of Mr. Croxall while holding his commission from the United States, and his exequatur from the French government, was not called for by the occasion, and that any restraint upon him, rendering impracticable the performance of his consular duties, if consonant to national law, was not consistent with national comity, as exercised in France to other friendly powers. This government was embarrassed by the mixed character of the proceedings versus Mr. Croxall. A criminal and civil action appeared to have been carried on and been tried together, and while he has been acquitted of the crime charged he has yet been compelled to pay damages to the accuser.
"Another difficulty was interposed by Mr. Croxall himself, who made no question of official privilege, but submitted, as if as a matter of course, to arrest and detention by the prosecuting officer. So far as regards the civil action, the United States do not assert the right to interfere, except in case of gross injustice, of which the French
tribunals, the President believes, are incapable. Whether the arrest and detention were on the civil or criminal process is not yet understood. On the whole, the President thinks it proper to leave the subject to your discretion, to be pursued or terminated as you may deem best, with this suggestion, however, that the occasion be taken to establish the understanding that, whenever a consul of either party shall be the subject of criminal prosecution requiring restraint upon him, and thus interfering with his official duties, the government proceeding against him shall give notice to the diplomatic representative of the other party of the charge against the consul, that such arrangements for the performance of the consular duties, pending the investigation, may be made as the honor and interest of his government may require."
Mr. Forsyth, Sec. of State, to Mr. Cass, min. to France, No. 6, Dec. 6, 1836,
and No. 19, April 13, 1838, MS. Inst. France, XIV. 220, 239.
inflicted on one of its consuls in a foreign state, see Mr. Forsyth, Sec.
Foreign consuls are subject to criminal process for the violation of the municipal laws. In addition to the ordinary means of redress, the President may, in his discretion, withdraw the exequatur.
Cushing, At. Gen., 1855, 7 Op. 367.
With reference to certain judicial proceedings taken by the British authorities at Hongkong against the United States consul there, on a charge of aiding in the rescue of the master of an American vessel who had been arrested for an alleged assault on a seaman on shipboard, the Department of State said: “ Information has been received that the proceedings against you for being concerned in the rescue of Captain Nichols have been abandoned. The ground for the discontinuance of those proceedings is that the usher had not the legal custody of Captain Nichols, because he had not been provided with a written warrant to hold him in custody. Upon examination of the evidence you have furnished to the Department, though conflicting, it does not appear sufficient to sustain the charge against you of having aided in the rescue if Captain Nichols had been legally in custody. Though this course towards you may be regarded as an act of discourtesy, yet, all the circumstances considered, it can hardly be treated as an outrage."
Mr. Marcy, Sec. of State, to Mr. Keenan, consul at Hongkong, April 14,
1856, 21 MS. Desp. to Consuls, 567.
Referring to the arrest of the United States consul-general at Montreal, Canada, on a charge of kidnapping, Mr. Seward said: “ This