other of its intentions to terminate the same, each of contracting parties reserving to itself the right of giving such notice to the other at the end of said term of twelve years. And it is hereby agreed between them that, on the expiration of one year after such notice shall have been received by either from the other party, this treaty in all the parts relating to commerce and navigation shall altogether cease and determine, and in all those parts which relate to peace and friendship it shall be permanently and perpetually binding on both parties."

Pursuant to notice by the Chilian government under the foregoing article, the treaty, together with the explanatory convention which followed it in 1833, were terminated January 20, 1850. Treat. & Conven. p. 118. As will be observed, the portions of the treaty so terminated were those relating to commerce and navigation, leaving permanently and perpetually binding on both powers those parts relating to peace and friendship, embracing, as is contended, article 25 of the treaty, which is as follows:

"Both the contracting parties, being desirous of avoiding all inequality in relation to their public communications and official intercourse, have agreed, and do agree, to grant to their envoys, ministers, and other public agents the same favors, immunities, and exemptions which those of the most favored nations do or shall enjoy; it being understood that whatever favors, immunities, or privileges the United States of America or the republic of Chili may find it proper to give to the ministers and public agents of any other power shall, by the same act, be extended to those of each of the contracting parties."

It being stipulated by the convention between the United States and France, ratified April 1, 1853, that their consuls shall never be compelled to appear in court as witnesses, it is urged that the same privilege attaches to the consuls of Chili by virtue of article 25 of the treaty of 1832 above cited. In the case of In re Dillon, 7 Sawy. 561, Fed. Cas. No. 3,914, which arose in 1854, it was held by the court that, because of the stipulation in the treaty between the United States and France to the effect that their consuls shall never be compelled to appear in court as witnesses such consuls are not amenable to the compulsory process of the courts requiring their attendance, notwithstanding the provision of the constitution of the United States securing to the accused in criminal prosecutions the right to have compulsory process for obtaining witnesses in his favor. The subpoena served upon Mr. Dillon also required him to produce a certain document, said to be in his possession. Having failed to appear, an attachment was issued, and he was brought into court, from which, after a hearing of the matter, he was discharged. When the attachment was served, 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 Mr. Dillon was brought into court, was regarded by the French government as not merely a contravention of the treaty, but an offense by international law; and it was argued that the disrespect was not purged by the subsequent discharge of Mr. Dillon from arrest. It was urged, also, that the fact that the subpoena 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 the defendant the right in criminal prosecutions 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-ofwar, stopping at San Francisco. Count de Santiges, 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." Whart. Int. Dig. p. 666.

It will therefore be seen that while the court held, in Dillon's Case, that the provision of the constitution securing to the accused in criminal prosecutions the right to have compulsory process for obtaining witnesses in their favor does not authorize the issuing of such process to such consuls who, by express treaty, are not amenable to the process of the courts, the state department of the government contended SCOTT INT.LAW-21

that that provision overrides conflicting treaties, not embodying exceptions to the right guarantied, recognized as such when the constitution was framed, within which exceptions consuls did not come. In the present case, however, the provision of the constitution referred to in Dillon's Case is not involved; for Mr. Catton has not been subpœnaed as a witness for the defendants, but on behalf of the prosecution. And if he is entitled, as in effect it is declared he is, by article 25 of the convention of 1832, and by the exequatur issued to him by the president, to the same privileges and immunities as are granted to the consuls of France, it would seem to follow that he is exempt from compulsory process to attend the court as a witness.

But for another reason I do not think he should be compelled to attend as a witness in this cause. The offenses with which the defendants stand charged are violations of the neutrality laws of the United States, and consist in the giving of aid to those who now constitute the established and recognized government of Chili. Having succeeded and become recognized, the acts of that government from the commencement of its existence will be upheld as those of an independent nation. Williams v. Bruffy, 96 U. S. 176, 24 L. Ed. 716. To require the representative of that government to appear and give testimony against those alleged to have aided its establishment would not only be contrary to the principle upon which neutrality laws are based, but would strongly tend to give grave offense to the government now recognized by the United States, and with which this government, happily, is at peace.

The motion on behalf of the vice-consul is allowed.20

26 A consul is a commercial, not a diplomatic agent, and has no claim under international law to immunity from the civil or criminal jurisdiction of the country in which he is stationed. Barbuit's Case, Cas. t. Talbot, 281 (1737); Clarke v. Cretico, 1 Taunt. 106 (1808); Viveash v. Becker, 3 M. & S. 284 (1814); Com. v. Kosloff, 5 Serg. & R. (Pa.) 545 (1816). "Consuls," said Mr. Justice Swayne, in Coppell v. Hall, 7 Wall. 542, 553, 19 L. Ed. 244 (1868), "are approved and admitted by the local sovereign. If guilty of illegal or improper conduct, the exequatur which has been given may be revoked and they may be punished, or sent out of the country, at the option of the offended government. In civil and criminal cases, they are subject to the local law in the same manner with other foreign residents owing a temporary allegiance to the state. Dana's Wheaton, § 249; 1 Kent's Commentaries, 53. A trading consul, in all that concerns his trade, is liable in the same way as a native merchant. 2 Phillimore's International Law, ccli. The character of consul does not give any protection to that of merchant when they are united in the same person. The Indian Chief, 3 C. Rob. 27 (1800); Arnold v. U. S. Ins. Co., 1 Johns. Cas. 363 (1800)."

See, also, opinion of C. Cushing, 8 Op. Attys. Gen. 169 (1856).

While consuls are and always have been liable to suit in the United States, they might only be sued in the federal courts (Act of 1789, Rev. St. § 711, cl. 8 [Comp. St. § 1233]); but this clause was repealed by Act Cong. Feb. 18, 1875, 18 St. L. p. 318, with the result that state and federal courts now exercise concurrent jurisdiction in suits against consuls and vice consuls, as appears from an excellent opinion of Mr. Justice Harrison in the recent case of Wilcox v. Luco, 118 Cal. 639, 45 Pac. 676, 50 Pac. 758, 45 L. R. A. 579, 62 Am. St. Rep. 305 (1897).

SCOTT INT.LAW

VI. RIGHT OF ASYLUM

(A) In Embassy or Legation

UNITED STATES v. JEFFERS.

(United States Circuit Court for District of Columbia, 1836. 4 Cranch, C. C., 704, Fed. Cas. No. 15,471.)

Francis S. Key, Esq.,27 attorney of the United States, for the District of Columbia, having laid before the court a letter to him from the Secretary of State, in these words: "F. S. Key, Esq., United States Attorney for the District of Columbia. Department of State, Washington, May 27, 1836. Sir: I transmit a copy of a communication from his Britannic Majesty's envoy extraordinary and minister plenipotentiary, Mr. Fox, dated yesterday, complaining of the conduct of a constable named Jeffers, at the house of one of the members of his majesty's mission. You are requested to inquire immediately into the case and to ascertain and report to the department, under what authority the constable acted; with what process he was charged; by whom the process was issued, and on whose application; and generally what proceedings have taken place in the matter. You will also be pleased to inform me, to whom the constable is amenable, and in what manner he is removable for misconduct. I am, sir, your ob't servant, John Forsyth." And a copy of the communication from his Britannic Majesty's envoy extraordinary, therein referred to, in these words: "The undersigned, his Britannic Majesty's envoy extraordinary and minister plenipotentiary, feels it his duty to bring the following case, involving a breach of the privilege of the diplomatic body, under the immediate consideration of Mr. Forsyth, Secretary of State of the United States. A colored lad, serving for hire in the family of Mr. Bankhead, his Britannic Majesty's secretary of legation, was this morning taken away from the house of that gentleman by a constable of the name of [Madison] Jeffers, belonging to the capitol ward of this city, upon the plea of conveying him to his master, Mr. King, from Alabama. No previous intimation of a wish to remove the lad from Mr. Bankhead's service had been given to him either by Mr. King or by any one else. Mr. Bankhead, in order to avoid any disturbance, allowed the servant to be removed, but formally protested against the proceeding; and the undersigned now submits the case to the consideration of Mr. Forsyth, in the confident expectation that immediate redress will be granted by the government of the United States for this act of authority exercised by a constable of the District, in the house of

27 Better known as the author of "The Star-Spangled Banner," 1814.

one of the members of his Britannic Majesty's mission, in violation of the privileges of the diplomatic body. The undersigned has the honor to renew to Mr. Forsyth the assurances of his distinguished consideration. H. S. Fox. Washington, May 26th, 1836. The Honorable John Forsyth, &c., &c., &c." It is, on the motion of the said attorney of the United States, ordered, that the said Madison Jeffers, in the said communication mentioned, be removed from the office of constable of the county of Washington, unless he show cause to the contrary on the thirty-first day of May instant, provided a copy of this order shall have been served upon him this day. By order of the court, May 30th, 1836. Test: William Brent, Clerk.

The rule having been duly served, the said Madison Jeffers appeared on the 31st of May and, by way of showing cause, filed his affidavit admitting the facts, but alleging his ignorance of the diplomatic privileges, and his belief that he was executing his duty lawfully in arresting a fugitive slave, and disclaiming all intentional disrespect to Mr. Bankhead.

His counsel, Mr. W. L. Brent, contended that Jeffers, as the agent of the owner of the slave, had a right to take him anywhere; and also that, as a constable, he had a right to take up a runaway. That the diplomatic privilege extends only to foreign ministers, and upon certain terms; and not to servants of a secretary of legation. That the servant had not been registered according to the Act of Congress of 30th of April, 1790, § 26 (1 Stat. 112 [Comp. St. § 7612]), and therefore Jeffers had a right to arrest him; because the act of Congress for punishing the violation of privilege does not extend to those who may arrest a servant not registered. By not registering his servant the minister has waived his privilege. Seacomb v. Bowlney, 1 Wils. 20. The court stopped Mr. Key in reply.

THURSTON, Circuit Judge, said he wished no further time or argument. He was of opinion that Jeffers should be dismissed from office. MORSELL, Circuit Judge, concurred.

CRANCH, Chief Judge, would have taken time to consider; but said that his present opinion coincided with that of the court.

Whereupon, the court passed the following order: "Madison Jeffers, upon whom a rule was laid on the 30th of May last, to show cause why he should not be removed from the office of constable for the county of Washington, upon the grounds therein stated, appeared and filed his affidavit, and the same was read and heard, and he was further heard by his counsel. Whereupon it is considered by the court, that the said Madison Jeffers was guilty of a violation of the privileges of his Britannic Majesty's envoy extraordinary and minister plenipotentiary, as stated in his letter to the secretary of state, referred to in the said rule; and the said Madison Jeffers, having shown no sufficient cause to the contrary, it is thereupon considered by the court,