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Department does not consider that, pursuant to public law, a consulgeneral is entitled to any diplomatic immunity. Freedom from arrest in favor of such officers is sometimes stipulated for by treaty, but there is no such stipulation in any treaty between the United States and Great Britain. On the contrary, the 4th article of the convention of the 3rd of July, 1815, declares that, in case of illegal or improper conduct towards the laws or government of the country to which he is sent, a consul may either be punished according to law, if the laws will reach the case, or sent back, the offended government assigning to the other the reason for the same."
Mr. Seward, Sec. of State, to Mr. Bates, Nov. 21, 1863, 62 MS. Dom. Let.
A United States consul in Brazil, who had been libeled in a news paper, went to the office of the editor with a view to chastise him. A scuffle ensued, and the consul, after an attempt had been made on his life, shot the editor. The consul was then arrested, and bail was refused him. As the shooting seemed to have been unpremeditated and in self-defense, the circumstance that he was not admitted to bail occasioned“ some surprise;" but, as every effort seemed to have been made to alleviate the hardship of his detention, it was thought that complaint on that score "might be deemed out of place," there being no reason to believe that the proceedings were not conducted in accordance with law.
Mr. Porter, Act. Sec. of State, to Mr. Osborn, No. 120, June 2, 1885, MS.
Inst. Brazil, XVII. 2914.
Mr. Hollis, United States consul at Mozambique, having shot and wounded a native African whom he mistook for a burglar, was tried by the Portuguese authorities and sentenced to keep the peace for two years or be imprisoned for six months. The practical result of the sentence would have been to place him at liberty, but for the fact that the prosecuting officer took an appeal, pending the determination of which Mr. Hollis was out on bail. Mr. Hollis thought that he should have been acquitted, and wished the government of the United States to intervene. The government did not feel warranted in doing this, unless there had been “ a plain denial of justice.” The Department of State requested the Navy Department to allow the U. S. S. Castine, then cruising of the southeast African coast, to touch at Mozambique and report upon the case.
Mr Gresham, Sec. of State, to Mr. Lodge, U'. S. S., April 23, 1895, 201
MS. Dom. Let. 603.
MS. Dom. Let. 432.
February 14, 1897, Moustapha Bey, Turkish minister, wrote to Mr. Olney, Secretary of State, that Mr. J. A. Iasigi, Turkish consulgeneral at Boston, had telegraphed him that he had been arrested in a civil suit in New York, in pursuance of a warrant received by telegraph from Boston. The minister complained of this arrest as being in violation of Article II. of the treaty of 1830, which, as he contended, guaranteed in principle to the Turkish consuls and officers most-favored-nation treatment. He asked that suitable measures be taken for the release of the consul. February 19 Mr. Olney replied that it seemed to be a sufficient answer to the suggestion contained in the minister's note that information had been received which made it entirely certain that Mr. Iasigi's arrest was not made in a civil suit, but on a criminal charge of embezzlement, with a view to his extradition to Massachusetts to be tried thereon. March 9, 1897, Moustapha Bey wrote that in pursuance of instructions which he had received, Mr. Iasigi had been relieved of his functions as consulgeneral at Boston and was no longer in any sense an agent of the imperial government.
For. Rel. 1897, 582–583.
3. JURISDICTION OF COURTS IN UNITED STATES.
The constitutional provision giving the Supreme Court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls has been constrúed not to mean exclusive jurisdiction, so as to prevent the vesting of power in any such case in inferior Federal courts.
Mr. Forsyth, Sec. of State, to Mr. Cass, min, to France, No. 19, April 13,
1838, MS. Inst. France, XIV. 239.
Both circuit and district courts of the United States have jurisdiction of suits brought against foreign consuls.
Saint Luke's Hospital 1. Barclay, 3 Blatch. 239; Graham 1. Stucken, 4
Blatch. 50; Bixby t. Janssen, 6 Blateh. 315; Gittings v. Crawford,
The President has no authority to interpose in a suit against a consul, though it be of a public nature and concern the consul's government. A consul is not privileged from legal process by the law of nations, nor is the French consul-general by the consular convention between the United States and France, of 1788, though the process against him is limited to Federal courts.
Lee, At. Gen., 1797, 1 Op. 77.
Foreign consuls and vice-consuls are not public ministers within the law of nations or the acts of Congress, but are amenable to the civil jurisdiction of the courts. But they are bound to appear only in the Federal courts, the State courts being excluded by the Constitution and laws.
Wirt, At. Gen., 1820, 1 Op. 406.
The exemption of consuls in the United States from suits in the State courts is not a personal privilege, but a privilege that attaches to their official character; and an omission to plead it is not a waiver of it.
Davis v. Packard, 7 Pet. 276; Durand v. Halbach, 1 Miles (Phila.), 46.
In 1846 judgment was recovered in the superior court of the city of New York against one Thompson, who was associated as a commission merchant with one Mason, doing business under the firm name of Mason & Thompson. Thompson only was served with process. At the trial he made defense on the merits; but, after judgment was rendered against him, he took out a writ of error on the ground that he was consul of Ecuador, and therefore not subject to the jurisdiction of the State courts. The plaintiff alleged in reply, among other things, (1) that the defendant voluntarily submitted himself to the jurisdiction, and (2) that the suit related to matters in which he and Mason were, as partners in trade, jointly interested. Held, that it belonged to the United States courts, and not to the State courts, to determine to what privileges and immunities a foreign consul was entitled, and that the exemption of the defendant was confirmed by section 9 of the judiciary act of 1789, which gave the United States district courts jurisdiction “exclusively of the courts of the several States of all suits against consuls and vice-consuls," with an exception not affecting the pending case. The judgment of the superior court was therefore reversed, and the reversal was affirmed on appeal.
Valarino v. Thompson (1853), 7 N. Y. 576.
State courts, see People v. Welch (1894), 141 N. Y. 266; In re Loney
While State courts have no jurisdiction of suits against foreign consuls, they may assume jurisdiction of suits begun by consuls. And it seems that, where a foreign consul files a bill in equity in a State court, the court may entertain a crossbill.
Sagory v. Wissman, 2 Benedict, 240.
It has been held that a foreign consul may be arrested in the United States circuit court, under the acts of February 28, 1839 (5 Stat. 321),
and January 14, 1841 (5 Stat. 410, Rev. Stat. $ 990), and the New York code of procedure, in a suit for money recovered by him in a fiduciary capacity. It was held also that the pendency of a former suit in a State court is no defense to a second suit for the same cause of action in the Federal court, as the State court had no jurisdiction.
McKay v. Garcia, 6 Benedict. 556.
With reference to certain legal proceedings against the Italian consul at San Francisco, Mr. Fish said that, if the proceedings were in a court of the State of California, and not in any of the courts of the United States, they were “null and void, for it is entirely settled that it is the privilege of the government of Italy, not merely the personal privilege of the consul, that its consul should be impleaded only in a Federal court." If, therefore, the proceedings were in a State court, the consul should bring his official character to its knowledge by a plea to the jurisdiction, so that the record might contain conclusive evidence of its incompetency and of the nullity of any judgment it might render.
Mr. Fish, Sec. of State, to Count de Colobiano, Dec. 22, 1869, MS. Notes
to Italy, VII. 48.
With reference to a complaint concerning legal proceedings against the Italian consul at San Francisco, Mr. Fish, after saying that, if the proceedings were in a State court they were null and void and should be checked by a plea to the jurisdiction setting forth the defendant's official character, observed that, if the proceedings were in a United States court, it was expected that any defense which the consul might present would receive impartial and intelligent consideration, and that complete justice would be done. Mr. Fish added that the Executive had “no capacity to control or influence the deliberations of any court, State or Federal; " that if, after a case had been prosecuted to the court of last resort, it should be made to appear ihat manifest error had intervened and had not been corrected, it might then become the duty of the Executive government to consider its obligation to repair the wrong; but that meanwhile it was the duty of the consul to avail himself of the means of defense which the laws afforded, “and not contribute by his own negligence to an erroneous decision."
Mr. Fish, Sec. of State, to ('ount de ('olobiano, Dec. 22, 1869, MS. Notes
to Italy. VII. 18. For the enunciation of the same principle with reference to a suit in the
I'nited States courts at New Orleans against the acting French consul in respect of moneys which he had, as administrator of a deceased citizen of France, transmitted to his government for proper distribution by it, see Mr. Evarts. Sec. of State, to M. Outrey, French min., May 24, 1879, VS. Notes to French Leg. IX. 300.
An action was brought in the United States circuit court for the southern district of New York to recover damages for an alleged unlawful conversion of certain articles of merchandise. The defendant denied the material allegations of the complaint, and by way of counterclaim asked judgment against the plaintiff for certain sums. The plaintiff filed a replication, and the case was tried by a jury, with the result that a verdict was given in favor of the plaintiff. The defendant then sued out a writ of error on the ground, among other things, that he was consul of Sweden and Norway, and that, according to the Constitution and laws of the United States he should have been impleaded, not in the circuit court, but in the United States district court. By section 711 of the Revised Statutes, following the act of 1789, jurisdiction was vested in the United States courts, exclusively of the State courts, of suits against consuls or vice-consuls. By the act of February 18, 1875, 18 Stat. 318, this part of section 711 was repealed, so that there remained no statutory provision which in terms made the jurisdiction of the courts of the United States exclude that of the State courts in suits against consuls or vice-consuls. But, as the Supreme Court and the district courts were, under the Constitution and the existing legislation of Congress, the only Federal tribunals invested with jurisdiction without reference to the citizenship of the parties of suits against consuls, it was held that the only ground on which the jurisdiction of the circuit court could be supported was that of the alienage of the defendant, and that, as such alienage could not be presumed from the mere fact that he was alleged to be a foreign consul, the record did not present a case which the circuit court had authority to determine.
Börs v. Preston (1884), 111 U. S. 252, citing Grace 1. Am. Ins. Co., 109
U. S. 278, 283; United States v. Ravara, 2 Dall. 297; United States 1.
A certain person was sued at Atlanta, Ga., for a balance due on furniture. He made no defense until after judgment was rendered against him, when he moved to set the judgment aside on the ground that he was a Belgian subject, residing at Atlanta as consul of the Belgian government, received and recognized as such by the government of the United States, and that he was not subject to suit in the State courts. The motion was overruled, and this decision was affirmed on appeal.
De Give v. Grand Rapids Furniture Co. (1894), 94 Ga. 605, 21 S. E. 582.
In reply to a complaint that the Danish vice-consul at New York had refused to obey a subpæna duces tecum issued by a State court,