CRIMINAL PROCESS

[$ 475

civil process.1 Such amenability implies an obligation to submit to an adjudication when he is duly served.2

Difficulties arise, however, with respect to the service of process. To subject a consular officer to the jurisdiction of a particular tribunal by personal service upon him within his consular offices or dwelling, appears to be incompatible with the common treaty provision declaring such places to be inviolable.3 A consul should not attempt to escape service by taking refuge in his consulate. Should he do so, however, the agreement to regard it as inviolable should not be disregarded. The territorial sovereign by threatening to withdraw his exequatur, or by complaint to his government, is never without the means of causing such an officer to place himself within the reach of the local courts.4

$475. Criminal Process.

b

Because amenable to the local jurisdiction, a consular officer finds himself subject to arrest when charged with offenses which, according to the local law, are rendered criminal, and for the commission of which the offender is made punishable.5 Consular

1 Opinion of Mr. Lee, Atty.-Gen., Nov. 21, 1797, 1 Ops. Attys.-Gen. 77, Stowell's Cases, 465, Moore, Dig., V, 72; Opinion of Mr. Wirt, Atty.-Gen., Dec. 1, 1820, 1 Ops. Attys.-Gen. 406, Stowell's Cases, 467, Moore, Dig., V, 73; Caldwell v. Barclay, 1 Dall. 305, Stowell's Cases, 86, Moore, Dig., V, 62. See, also, Mr. Adee, Second Assist. Secy. of State, to Messrs. Hensel, Bruckmann & Lorbacher, Oct. 29, 1897, MS. Dom. Let. 81, Moore, Dig., V, 64; Mr. F. W. Seward, Assist. Secy. of State, to the Fifth Auditor of the Treasury, March 23, 1861, 53 MS. Dom. Let. 507, Moore, Dig., V, 62; Case of American Vice-Consul at Dresden in 1910, For. Rel. 1910, 522-523.

See Arts. IV-VIII of declaration of the Institute of International Law respecting consular immunities, Sept. 26, 1896, Annuaire, XV, 305.

See, for example, Jones v. Le Tombe, 3 Dall. 384, Stowell's Cases, 199, Moore, Dig., V, 62. Also case of attempted service of a writ in a libel suit upon the Consul General of Italy at Denver in 1909; also opinion of Solicitor of the Department of State, concerning the matter, Jan. 27, 1910, enclosed in communication of Mr. Knox, Secy. of State, to Mr. Leishman, American Ambassador to Italy, Jan. 31, 1910, For. Rel. 1910, 674. Also same to the Italian Ambassador, Jan. 13, 1910, id., 673.

3 Mr. Hay, Secy. of State, to Mr. White, Ambassador to Germany, March 6, 1899, For. Rel. 1899, 302, Moore, Dig., V, 82.

4 Note the argument of Mr. Marcy, Secy. of State, to Mr. Figanière, Portuguese Chargé d'Affaires, March 27, 1855, MS. Notes to Portugal, VI, 145, Moore, Dig., V, 80-81.

5 United States v. Ravara and Reporter's Note thereon, 2 Dall. 297, 299, Stowell's Cases, 415, 417, Moore, Dig., V, 55; Opinion of Mr. Cushing, Atty.Gen., 7 Ops. Attys.-Gen. 367, 384, Stowell's Cases, 548, 552, Moore, Dig., V, 70.

See, also, Mr. Monroe, Secy of State, to Mr. Harris, Chargé d'Affaires at St. Petersburg, Dec. 23, 1815, with respect to Kosloff's Case, MS. Inst. U. S. Ministers, VIII, 17, Moore, Dig., V, 66; Same to Same, July 31, 1816, MS. Inst. U. S. Ministers, VIII, 89, Moore, Dig., V, 67; Mr. Olney, Secy. of State,

conventions of the United States commonly limit any immunity from arrest to cases where the act charged against the officer does not possess a criminal character. The arrest and confinement of a consul when subjected to the local jurisdiction on merely a civil complaint is thereby sought to be avoided.2

с

§ 476. The Giving of Testimony.

Exemption from the obligation to appear as a witness except for the defense of persons charged with crime, is secured by numerous consular conventions of the United States.3 The Departto Moustapha Bey, Turkish Minister, Feb. 19, 1897, For. Rel. 1897, 583, Moore, Dig., V, 72.

Compare Art. VII, of the declaration of the Institute of International Law respecting consular immunities, Sept. 26, 1896, Annuaire, XV, 305.

i See, for example, Art. III convention with Sweden, June 1, 1910, Charles' Treaties, 113.

2 Croxall's Case, Moore, Dig., V, 68-70, citing Mr. Forsyth, Secy. of State, to Mr. Cass, Minister to France, No. 6, Dec. 6, 1836, and No. 19, April 13, 1838, MS. Inst. France, XIV, 220, 239.

Jurisdiction of Courts in the United States. According to § 256 of the Federal Judicial Code, Act of March 3, 1911, Chap. 231, "the jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: ... Eighth. Of all suits and proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice-consuls. 36 Stat. 1160. Respecting the legislation of the United States prior to the enactment of this law, see Moore, Dig., V, 72-78.

According to par. 18 of § 24, Chap. II, of the Judicial Code, the United States District Courts are given original jurisdiction "of all suits against consuls and vice-consuls." 36 Stat. 1093.

3 Consular Regulations of the United States (1896), § 82, Moore, Dig., V, 78; also Art. IV of consular convention with Sweden, June 1, 1910, Charles' Treaties, 113.

See Art. VIII of Declaration of the Institute of International Law in respect to consular immunities, Sept. 26, 1896, Annuaire, XV, 305, J. B. Scott, Resolutions, 125.

Criminal Cases. According to Art. II of the consular convention with France, Feb. 25, 1853, it is provided that consular officers of the contracting States "shall never be compelled to appear as witnesses before the courts. When any declaration for judicial purposes, or deposition, is to be received from them in the administration of justice, they shall be invited, in writing, to appear in court, and if unable to do so, their testimony shall be requested in writing, or be taken orally at their dwellings.' Malloy's Treaties, I, 529. Respecting the exemption of a French consul under this convention from the duty to testify as a witness for the defense in a criminal case, notwithstanding the Sixth Amendment to the Constitution of the United States, securing to persons accused of crime the right of compulsory process for obtaining witnesses in their favor, see In re Dillon, 7 Sawyer, 561, Moore, Dig., V, 78-81, and documents there cited; United States v. Trumbull, 48 Fed. 94. An agreement that even under the special circumstances specified in the convention with France, a foreign consul is exempt from the obligation to appear as a witness, might be at variance with the Sixth Amendment, if the latter were given a literal interpretation. If, however, as was held by Hoffman, J., in Dillon's Case, the Amendment was designed merely to place the accused

IN GENERAL

[$ 477 ment of State is of opinion that a convention providing for the inviolability of the consular archives is rendered nugatory if a consular officer may be compelled to disclose their contents by his testimony in a local forum. According to Secretary Hay, such an officer cannot justly be required to divulge information coming to him in his official capacity, "for that is the exclusive property of his government;"2 but that as to matters within his personal knowledge or observation in his mere capacity as an individual, he is not privileged from testifying as a witness.3

8

PRIVILEGES IN RELATION TO DECEASED COUNTRYMEN

§ 477. In General.

a

Upon the death of a countryman within the consular district, a consular officer is accorded by international law, and even more broadly by treaty, extensive privileges. These concern notification of the consul by local authorities of the fact of

in the same position in making his defense, as the Government occupied in endeavoring to establish his guilt, the bare removal of the consular officer beyond reach of the court's process, by virtue of a treaty, would do no violence to the Amendment.

In order to avoid controversies, such as that arising from Dillon's Case, Art. IV of the consular convention with Sweden, June 1, 1910, provides that "in all criminal cases, contemplated by the Sixth Article of the amendments to the Constitution of the United States, whereby the right is secured to persons charged with crimes to obtain witnesses in their favor, the appearance in court of said consular officers, shall be demanded, with all possible regard to the consular dignity and to the duties of his office, and it shall be the duty of such officer to comply with said demand. A similar treatment shall also be extended to the consuls of the United States in Sweden, in the like cases." Charles' Treaties, 113.

1 Mr. Hay, Secy. of State, to Mr. White, Ambassador to Germany, March 6, 1899, respecting Guenther's Case, For. Rel. 1899, 302, Moore, Dig., V, 82. Also Case of the American consular officer at Solingen, in 1905, For. Rel. 1905, 458-460.

2 Mr. Hay, Secy. of State, to Mr. Merry, Minister to Nicaragua, April 17, 1899, For. Řel. 1899, 566, Moore, Dig., V, 84-85; also Mr. Rockhill, Third Assistant Secy. of State, to Mr. Mason, U. S. consul, July 31, 1894, For. Rel. 1899, 304, Moore, Dig., V, 83; Mr. Blaine, Secy. of State, to Mr. Phelps, No. 178, Dec. 17, 1890, and No. 196, Jan. 29, 1891, MS. Inst. Germany, XVIII, 389, 403, Moore, Dig., V, 83.

3 Mr. Hay, Secy. of State, to Mr. Merry, Minister to Nicaragua, April 17, 1899, For. Rel. 1899, 566-568, Moore, Dig., V, 84. In the same Instruction it is declared that a consul is not to refuse to testify because the facts to which he is required to testify might be of a political character, or simply because his testimony might have a tendency to implicate American citizens or others in the commission of unlawful acts. See, also, in this connection, Mr. Merry, Minister to Nicaragua, to Mr. Hay, Secy. of State, May 9, 1899, For. Rel. 1899, 583, Moore, Dig., V, 85.

death; the taking charge of or placing the consular seal upon the assets of the decedent pending the appointment of an administrator; the administration of the estate of the decedent; and the distribution to foreign heirs in the State to which the consul belongs, either of property of the estate, or of pecuniary benefits due them by reason of their connection with or dependence upon the decedent.

The foregoing privileges are of great importance to foreign consuls in the United States, and particularly to those within whose consular districts reside large numbers of their fellow-countrymen, engaged in industrial occupations in the course of which death is frequently encountered. Such persons oftentimes leave surviving heirs or dependents residing in the country to which they owe allegiance. The proper protection of the interests of the nonresident heirs or dependents renders it expedient, and at times imperative, that a consular representative should automatically, and by virtue of the law, act in their behalf.1

b

§ 478. Notification of the Deaths of Fellow-Countrymen. Numerous conventions of the United States have provided that in case of the death of a citizen of either contracting party within territory belonging to the other, who has no known or testamentary executor designated by him, the competent local authorities shall give notice of the fact to the consular representative of the State of the deceased, that information may be at once transmitted to the parties interested. In the absence of local laws imposing a duty upon specified officials to make the requisite notification, foreign consuls in the United States oftentimes fail to learn of the deaths of their intestate fellow-countrymen residing within the same consular district. Upon complaint made through the diplomatic channel, the Department of State has on more than

1 The helplessness of non-resident dependents has oftentimes been utilized by local agencies which, when fortified by powers of attorney, have served their principals without zeal or scruple, and with vigorous opposition to the endeavors of the consular representative of the decedent to obtain justice in behalf of those who suffered pecuniary loss through his demise.

2 See, for example, Art. XVI, consular convention with Austria-Hungary, July 11, 1870, Malloy's Treaties, I, 44; Art. X, consular convention with Germany, Dec. 11, 1871, id., I, 553; Art. XVI, consular convention with Italy, May 8, 1878, id. I, 982; Art. XV, consular convention with Belgium, March 9, 1880, id., I, 99; Art. XXVI, treaty with Spain, July 3, 1902, id., II, 1709; Art. XIV, consular convention with Sweden, June 1, 1910, Charles' Treaties, 117.

TEMPORARY POSSESSION OF ASSETS

[$ 479 one occasion formally communicated with the governors of the several States (excepting those of States whose statutory law made appropriate provision), requesting that the terms of the particular treaty invoked be brought to the attention of the "competent local authorities", in order that the stipulation with respect to consular notification be complied with. The failure of certain States generally to deal with the matter by appropriate legislation has served to leave the international obligation unfulfilled,2 and to suggest the importance if not the necessity of a Federal law making uniform and adequate provision responsive to the formal undertaking of the United States.

According to instructions issued in 1914, the Department of State declared it to be the duty of an American consul to take such steps as might be practicable to insure his being informed of the deaths of Americans that might occur within his district, whether or not, under the regulations, he was called upon to take charge of the effects or administer the estate.3

C

§ 479. Temporary Possession of the Assets of an Estate. Official opinion in the United States has lacked uniformity with respect to the right of a consul, in the absence of treaty, to take even temporary possession of the assets of the estate of a deceased and intestate countryman. It was announced by Secretary Clay in 1827, that such an officer might, according to the prevailing practice, put his official seal upon the effects of the deceased until the local law operated upon them by the grant of administration, or if no administration were granted, for the purpose of transmission to the kindred of the deceased. Much the same idea had

1 See, for example, Mr. Adee, Acting Secy. of State, June 27, 1907, to the Governors of the States, For. Rel. 1907, I, 53.

2 See, however, § 12151, Vol. 5, Michigan Annotated Statutes, imposing upon judges of probate, in connection with the application for letters of administration, the duty to notify the appropriate consular officer; also § 7231, Minnesota Gen. Stat. 1913. According to § 20A, Act of April 21, 1915, amending Chap. 467, Minnesota General Laws of 1913, provision is made in the Workmen's Compensation Act, that in case a decedent be a native of foreign country leaving no known dependents within the United States, "it shall be the duty of the department of labor to give written notice of said death to the consul or other representative of said foreign country forthwith." 3 Circular Instructions to American Consular Officers, July 25, 1914. According to Circular Instructions of June 3, 1914, American consular officers are directed to make report of American citizens injured, killed or saved in calamities or disasters.

• Communication to Mr. Vaughan, British Minister, Nov. 12, 1827, MS. Notes to For. Legs., III, 400, Moore, Dig., V, 117.