4. THE GIVING OF TESTIMONY. § 714.. 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 subpoena 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 66 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 subpœna 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 court can entertain the question of the competency of his excuse for declining to comply with its invitation; but, where the government of the United States has fair grounds to question the good faith with which the consul avails himself of the provision of the convention which exempts him from compulsory process, it has two modes of redress and it can take either at its option. It can appeal to the consul's government to inquire into the case in this respect, and to deal with him as it shall find his conduct deserves; or it can revoke his exequatur." Mr. Marcy, Sec. of State, to Mr. de Figanière, Portuguese chargé d'affaires, March 27, 1855, MS. Notes to Portugal, VI. 145. See, also, Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Jan. 18, 1855, MS. Inst. France, XV. 249. By the last clause of Article II. here cited, it is provided that in case of death, indisposition, or absence of consular officers, the consular secretaries and consular pupils attached to their offices shall be entitled to discharge ad interim the duties of their respective posts, and shall enjoy, while thus acting, the prerogatives granted to the incumbents. "It is manifest that under the clause just cited, in the absence of the consul, the person acting as such officer would be entitled to the same privileges and rights as the consul, and this is the construction which the Department thinks should be given to it." (Mr. Thomas, Assist. Sec. of State, to Mr. McCoy, March 26, 1856, 45 MS. Dom. Let. 171.) The contention of Mr. Marcy in the case of M. Dillon, French consul at San Francisco, that the sixth amendment to the Constitution of the United States, which provides that an accused party shall have compulsory process for obtaining witnesses in his favor, should be considered as qualifying the general and absolute terms of the consular convention with France," was not acquiesced in by the French government, which required their flag, when raised to the mastheads of certain of their men-of-war at San Francisco, to be saluted as a reparation for the alleged indignity to their consul.” It is therefore desirable that in any future consular convention no such oversight should be committed. Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 18, 1872, MS. Inst. Hayti, Case of Mr. Guenther. Under date of Feb. 16, 1899, Mr. Guenther, consul-general of the United States at Frankfort on the Main, was served with a subpoena from the royal court of that place to appear and give testimony in a pending suit against one Ludwig Bettag. The subpoena contained this clause: "Witnesses who do not appear without sufficient excuse are to be sentenced, according to paragraph 50 of the penal code, to pay the costs occasioned by such nonappearance, also to a fine not to H. Doc. 551-vol 5-6 exceed 300 marks; and if this is not paid, to imprisonment not to exceed six weeks-producing them by arrest is also admissible." Mr. Guenther, in reply, sent to the court a note, indicating his readiness to testify if properly requested to do so, but protesting against being summoned under threats of fine and imprisonment and eventual arrest. The Department of State, on receiving the correspondence, instructed the embassy at Berlin (1) that, as no exemption from summons was stipulated for in the consular convention of 1871, it could not be claimed unless it should be found that the consul-general was entitled to it under the most-favored-nation clause, but (2) that, as by Article III. of the convention Mr. Guenther, not being a German subject, enjoyed "personal immunity from arrest or imprisonment, except in the case of crime," the menace of fine, arrest, and imprisonment, not for any crime, not only appeared to be gratuitous and "wanting in the respect due from one friendly government toward the consular officer of another," but, if carried into effect, would constitute a flagrant violation of the treaty. Continuing, the Department of State said: "Article V. provides that the officers and dwellings of consuls missi, who are not citizens of the country of their residence, shall be at all times inviolable. The local authority shall not, except in the case of the pursuit for crime, under any pretext invade them.' "While Mr. Guenther's office and dwelling are inviolable, he is threatened with arrest and imprisonment outside, or by virtual imprisonment inside, his office and dwelling, if he fails to obey the process, either by arresting him outside of his dwelling and office or inside thereof; or, if it is not sought to arrest him outside, to virtually imprison him within by making it impossible for him to go out without being subject to arrest and imprisonment. "It appears, moreover, that the summons is addressed to him as consul-general of the United States, and he is, as such officer, required, in answer to question one, attached to the process, to give evidence, 'from papers to be shown,' whether Bettag is an American citizen.' The papers referred to are evidently those belonging to the consular archives. This would seem to be violative of Article V., which provides that the consular archives shall be at all times inviolable, and under no pretense whatever shall the local authorities be allowed to examine the papers forming part of them.' While the papers are protected from seizure or examination, the thing prohibited is sought to be accomplished by compelling the consul to show them or to disclose their contents." Mr. Hay, Sec. of State, to Mr. White, amb. to Germany, March 6, 1899, |