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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 His 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. Croxall, 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, § 34) 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.
That the United States will insist on reparation for any personal injustice
inflicted on one of its consuls in a foreign state, see Mr. Forsyth, Sec.
of State, to Mr. Hunter, April 14, 1837, MS. Inst. Brazil, XV. 43.

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

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. 308.

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. 294.

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 on 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.

See, also, Mr. Gresham, Sec. of State, to Mr. Hollis, Nov. 17, 1894, 199
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.

§ 713.

The constitutional provision giving the Supreme Court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls has been construed 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 r. Barclay, 3 Blatch. 259; Graham v. Stucken, 4
Blatch. 50; Bixby r. Janssen, 6 Blatch. 315; Gittings r. Crawford,
Taney's Decis. 1.

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.

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