"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.) consul. 2. CRIMINAL PROCESS. $ 712. 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, 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. Kosloff's case. 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 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, United States district attorney at Philadelphia, to Mr. Mon- Feb. 28, 1816, id.; same to same, March 17, 1816, id.; Mr. Harris to It appears that, prior to the receipt by the Russian Government of the final explanations of the United States, Mr. Daschkoff informed Mr. Monroe that he had terminated his mission to the United States by the order of his sovereign," on account of this case, which was regarded as the more remarkable since the government of Russia had admitted that a consul deserves no protection in such a case from the law of nations." (Mr. Daschkoff, Russian min., to Mr. Monroe, Sec. of State, Oct. 31, 1816, MS. Notes from Russia; Mr. Monroe, Sec. of State, to Mr. Pinkney, Nov. 12, 1816, MS. Inst. U. States Ministers, VIII. 117.) In his note to Count Nesselrode of October 23, 1816, Mr. Monroe reviewed For the opinion of Chief Justice Tilghman, dismissing the indictment, see "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. Petersburg, Dec. 23, 1815, MS. Inst. U. 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. |