by which he can avail himself of this judicial power, he is not deprived of any right given him by the Constitution.'' 51

§ 415. Right may be waived.-Under this view allowing concurrent jurisdiction a consul sued in a state court, in addition to any defense he possesses to the cause of action, may claim his right under the Constitution to have the matter determined by the courts of the United States, and in case judgment is rendered against him, he can have the judgment reviewed by the supreme court of the United States.5 But he may waive this right either by merely pleading his defense to the cause of action without invoking this provision of the Constitution, or by suffering default, and if he so waives it, he cannot, after the rendition of judgment against him, claim the right to review the judgment under a writ of error to the supreme court of the United States.53

52

§ 416. Compulsory attendance of consuls as witnesses.-In certain conventions with foreign powers consuls are exempt from the obligation of appearing as witnesses. In 1854 an indictment was found in the district court of the United States against the Mexican consul at San Francisco for a violation of the neutrality act in enlisting or hiring persons to enlist as soldiers in the service of Mexico. M. Dillon, the French consul at San Francisco, one of the witnesses for the defense, was served with a subpoena duces tecum, but when the witnesses were called in court he was not present. The return upon the subpoena showed that it had been served, and the counsel for the defendant asked that an attachment issue against the absent consul, which was done and the consul was brought into court.

§ 417. Consular convention with France.-By the second article of the consular convention between the United States and France of February 23, 1853, it was provided that consuls should never be compelled to appear as witnesses before the courts, but

51 Wilcox v. Luco, 118 Cal. 639, 62 Am. St. Rep. 305, 50 Pac. 758, 45 L. R. A. 579. See, also, Börs v. Preston, 111 U. S. 261, 4 Sup. Ct. Rep. 407, 28 L. ed. 419; De Give v. Grand Rapids Furniture Co., 94 Ga.

605, 21 S. E. 582; In re Iasigi, 79 Fed. 751.

52 Wilcox v. Luco, 118 Cal. 639, 62 Am. St. Rep. 305, 50 Pac. 758, 45 L. R. A. 579.

53 Wilcox v. Luco, supra.

that in cases where their testimony is desired, they shall be invited in writing to appear in court and give it, and if they are not able to do this, a request shall be made that they give it in writing, or that it be taken orally at their residence. By the third article of this convention it is provided that the consular offices and dwellings shall be inviolable, and that under no pretext shall the local authorities invade them, or examine or seize the papers that may be deposited in them. It was stated by M. Dillon that the paper which it was sought to have him bring with him must, if it existed, have been a part of the archives of his consulate.

§ 418. Sixth amendment to Constitution. The sixth amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor. It was contended by the accused that this right is sacred, and secured to him by the Constitution of the United States; that it is comprehensive and without exception, and that neither by the provisions of any law or of any treaty can he be deprived of the right of compelling the attendance of any person whose testimony may be material to his defense. It was admitted by the counsel for the French consul that if the Constitution secured this right to the accused, no treaty could deprive him of it, and that if the court was called upon to decide between allowing a constitutional right to a prisoner and disregarding a treaty stipulation, or denying the constitutional right and observing the treaty, its highest allegiance was to the Constitution. The court held, however, that this provision of the Constitution did not authorize the issuance of such process to ambassadors, who, by public law, were not amenable to the laws of the country to which they were accredited, or to consuls, who, when a treaty expressly so stipulated, were likewise not amenable to the process of the courts. The court also held, that where a person sought a subpoena duces tecum, it was the duty of the court to require him to show that the document desired was not an official paper which the law protected from examination and signature.54

§ 419. Diplomatic action. In addition to the controversy in court, the incident became the subject of diplomatic considera

In re Dillon, 7 Saw. 561, 7 Fed. Cas. No. 3914.

tion. The French consul took down the consular flag on the service of the attachment, and the French Minister at Washington protested that the acts of the authorities constituted a gross disrespect to France, which considered the issuance of the attachment not only as a violation of the terms of the treaty, but also as a breach of international law, and that the subsequent discharge of the consul did not atone for this disrespect. The French Minister contended also that the duces tecum clause in the subpoena involved a violation of the archives of the consulate. Mr. Marcy, who was Secretary of State, insisted that the provisions of the Constitution of the United States assuring to the accused an opportunity to meet the witnesses produced against him was superior to any treaty in conflict with it, except in cases where such treaties contain exceptions to this right, which were recognized as such at the time of the adoption of the Constitution.

§ 420. Distinction as witnesses between ambassadors and consuls. When the Constitution became effective, Mr. Marcy contended, compulsory process could not be served on ambassadors and ministers to appear as witnesses, and the clause in the Constitution, he said, did not give to the defendant in criminal prosecutions the right to compel their attendance in court. But this privilege as to ambassadors did not, Mr. Marcy argued, apply to consuls, who could only procure the privilege when given to them by treaty. A treaty, however, he maintained, in criminal cases was subject to the limitations of the Constitution of the United States. He offered, in a letter addressed to the American Minister to France, to compromise the controversy by a salute to the French flag upon a French warship then anchored in the bay of San Francisco, but the French Minister at Washington asked also that when the consular flag was rehoisted at San Francisco a salute should be paid to it. This Mr. Marcy declined to do, and finally the French government signified its willingness to accept as a sufficient satisfaction an expression of regret on the part of the United States, and that whenever a French national ship or squadron should appear in the bay 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.

155

§ 421. Good excuse to be shown.-The consular convention with France of 1853, while it provided that consuls should not be forced to appear as witnesses before the courts, yet made it their duty, if they are invited in writing to appear and testify, to do so unless they are unable to comply with the request. Mr. Marcy said that this duty would be violated where a consul refused to appear without a 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 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 exequa

§ 422. Subpoena in behalf of prosecution.-An indictment was filed charging the defendant with having fitted out and with arming a vessel to be employed in the service of insurgents against the government of Chile. The counsel for the United States caused a subpoena to be served upon the vice-consul to appear as a

"Mr. Marcy, Secretary of State, to Mr. Mason, Minister to France, May 30, 1854, June 8, 1854, July 14, 1854, September 11, 1854, December 13, 1854, January 18, 1855, M. S. Inst. France, XV, 192, 198, 202, 210, 241, 249. Annual message of President Pierce, December 4, 1854. The contention of Mr. Marcy as to the

effect of the constitutional amendment was not accepted by the French government. Mr. Fish, Secretary of State, to Mr. Bassett, October 18, 1872, M. S. Hayti, I, 267. 50 Mr. Marcy, Secretary of State, to Mr. de Trangiere, Portuguese chargé d'affairs, March 27, 1855 Notes to Portugal, VI, # 145.

witness. He appeared in obedience to the subpoena, and presented his exequatur recognizing him as the duly appointed viceconsul of Chile at San Francisco, and also the consular instructions of his own government, prohibiting him without authorization from the Minister of Foreign Affairs, or the respective legations, from making public the correspondence which he held with the government, or information which he might receive while exercising his charge. These instructions required consuls to demand the privileges and exemptions which may appertain to them by virtue of treaties or conventions entered into between Chile and the nation to which they may be accredited, and if there should be no treaty, to demand the privileges and exemptions which are generally accorded in the country of their residence to consuls of other nations. They were required to demand, as essential to the exercise of their office, the inviolability of their archives and documents, and freedom in all that they might do in their capacity of consuls. The demand of the vice-consul to be relieved from further attendance as a witness was based upon the ground that his privileges as vice-consul exempted him from compulsory process to attend as a witness in any court of the United States, and also that the circumstances of the case before the court rendered it improper that he should be required to attend as a witness on the part of the prosecution.

1

$423. Contention of the government. It was contended by the United States that the privileges asserted by the vice-consul did not exist, and that upon the overthrow of the government by which he was accredited, his office ceased. On this point the court ruled that the recognition of representatives of foreign countries is a matter for the executive department of the government, whose action must be accepted by the judicial department, but accepting him as the duly authorized and acting consul of the Chilean government, the court asked: "Does his position as such, of itself, entitle him to exemption from compulsory process to attend as a witness in the courts of the United States?" It stated that by the laws of nations, consuls and vice-consuls stand on a different footing from ambassadors and ministers. It examined the case of Dillon,57 and said that the provision of

67 7 Saw. 561, Fed. Cas. No. 3914.