79 F. 751 | S.D.N.Y. | 1897
This is a proceeding by habeas corpus to procure the release of the prisoner, the Turkish consul general at Boston, from custody, upon a commitment made by a city magistrate on a charge of embezzlement in Massachusetts in violation of the law of that state, but not in violation of any statute of the United States. The commitment was in pursuance of a law of the state of Yew York, authorizing such a commitment for 30 days to await any requisition from the governor of Massachusetts.
A consul is not entitled, by virtue of his office as consul merely, to the immunities of a foreign minister. On the contrary, according to the rule of international law, he is subject civilly and criminally, like other residents, to the tribunals of the country in which he resides. 1 Kent, Comm. *44; Wheat. Int. Law (Lawrence’s Ed.) 423; The Anne, 3 Wheat. 435; Gittings v. Crawford, Taney, 1, Fed. Cas. No. 5,465; Coppell v. Hall, 7 Wall. 542, 553; In re Baiz, 135 U. S. 424, 10 Sup. Ct. 854; Hollander v. Baiz, 41 Fed. 732.
Under our dual judicial system, state and federal, in the absence of any special provision of law, the petitioner would, therefore, be subject to arrest and prosecution in the local tribunals in the same manner as other persons; so that the question presented is not one of immunity from punishment, but only as to the proper mode of proceeding, and whether his commitment and detention by a city magistrate under a state law for rendition to Massachusetts, where alone the offense can be tried, are unlawful.
The provisions of the constitution, and the acts of congress thereunder, as respects public ministers and consuls, create a limited class of cases which are sui generis. By the second section of the third article of the constitution the judicial power of the United States is extended to “all cases affecting ambassadors, other public ministers, and consuls”; and as to this special class of cases the constitution in the same section further declares that “the supreme court shall have jurisdiction.” Thus all cases affecting consuls, whether civil or criminal,- and whether arising under acts of congress, or under the common law or state statutes, are made cognizable by the supreme court, and thus “cognizable under the authority of the United States,” without any further action by congress. U. S. v. Hudson, 7 Cranch, 32, 33. Under the general grant of judicial power, congress, however, further provided by the judiciary act of 1789 (1 Stat. 73) that the supreme court should have “original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party” (section 13); that the district courts “shall have, exclusive of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, where the punishment should not exceed six months’ imprisonment,” etc.; “and shall also have jurisdiction, exclusive of the courts of the several states, of all suits against consuls and vice-consuls, except for offenses above the description aforesaid (section 9); and that the circuit courts shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United, States (except where otherwise
Under these provisions it remained the accepted law until 1875, that the federal courts had exclusive jurisdiction of offenses by consuls, whether at common law or under state or United States statutes. The ordinary rule that the United States could not punish common law or state offenses, did not apply. U. S. v. Ravara, 2 Dall. 297; Com. v. Kosloff, 5 Serg. & R. 545; U. S. v. Ortega, 11 Wheat. 472, 473, note. And Tennessee v. Davis, 100 U. S. 257, and Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, were decided on the same principle.
The provisions of the judiciary act were carried into the United States Revised Statutes (enacted June 22, 1874) without any substantial change, hut under a different arrangement. See section 563, pars. 1, 17; section 629, par. 20; section 687; section 711, pars. 1, 8. By this latter paragraph (8) the jurisdiction of the state courts was excluded in all “suits or proceedings” against consuls. The word “proceedings” in that paragraph was new; while the word “offenses,” which was in the exception in section 9 of the judiciary act, was omitted in paragraph 8 of section 711.
By the act of February 18, 1875 (18 Stat. 316, c. 80), .the eighth paragraph of section 71.1 was stricken out. The provisions of sections 563 and 629 conferring jurisdiction on the federal courts in all cases against consuls, both of crimes and of suits, were left untouched; and so was the exclusive jurisdiction of crimes and offenses under the first paragraph of section 711.
It is contended that by the repeal of the eighth paragraph of section 711, referring only to “suits or proceedings” against consuls, the jurisdiction of the state courts is opened to the prosecution of consular crimes and offenses against the state laws; whereas it is urged in behalf of the petitioner that this repeal gives no such jurisdiction to the state courts, hut leaves consular offenses cognizable as before in the federal courts alone, both by implication, from the nature of the consular relation, which involves the United States with foreign powers, and also by force of paragraph 1 of section 711. which gives the federal courts exclusive jurisdiction over “all crimes and offenses cognizable under the authority of the United States.” See Miller, Lect. Const. pp. 325, 326; Cooley, Lect. Const. p. 53; U. S. v. Ravara, supra; per Story, J., in U. S. v. Coolidge, 1 Gall. 488, Fed. Cas. No. 14,857; per Tilghman, C. J., in Com. v. Kosloff, 5 Serg. & R. 585.
As respects any actual intention of congress, the repeal of paragraph 8 of section 711, by the act of 1875, affords no light. The explanation of that repeal is difficult, if not impossible. The act is entitled “An act to correct errors and supply omissions” in the Revised Statutes of Hie United States. It embraces over 70 different subjects; and the first section of the act declares that the amendments therein made are made “for the purpose of correcting errors and supplying omissions” in the Revised Statutes “so as to make the same truly express” the laws in force on December 1, 1873. There is no doubt that on December 1, 1873, the jurisdie
There is a manifest propriety, amounting sometimes to a practical necessity in order to avoid international complications, that the prosecution, punishment or pardon of consuls which would necessarily materially affect their personal attention to their consular duties, should be within the control of the federal courts and of the federal government to which the consuls are accredited and which alone is responsible to foreign powers for the treatment of their representatives. While imorisonment for debt continued, the same considerations, though in a less degree, applied to civil suits. But since imprisonment for debt has been abolished, the grounds for exclusive federal jurisdiction in civil suits against consuls exist in but small degree, if at all; while in all criminal cases, all the original considerations of policy and propriety remain unchanged.
• I do not think it, however, necessary or appropriate at this time to pass upon the question whether the jurisdiction of the federal courts over consular offenses is now concurrent with the state courts, or exclusive of the state courts, either by implication, or under paragraph 1 of section 711. The only question needful for me to determine is whether the petitioner is unlawfully held in custody. The offense with which he was charged is an offense against the state of Massachusetts. He was committed by a committing magistrate under section 829 of the Criminal Code of Hew York, which undoubtedly covers the case in general terms, making no reference to the official position of the accused. As a consul is amenable to the local law, his arrest and detention are, therefore, lawful, unless they are prohibited by implication or by section 711 of the Revised Statutes of the United States. But that section, even giving to its terms the broadest effect, goes no further than to exclude “the jurisdiction of state courts.” This refers to proceed