48 F. 94 | S.D. Cal. | 1891
It is greatly to be regretted that tlie important question now presented to the court must be disposed of in the haste of a nisi prius trial. The question arises in a case in whicli the government of the United States, by various counts in the indictment, charges, in effect, that on the 9th day of May, 1891, at a certain designated place within this judicial district, Ricardo Truinbull and G. A. Burt attempted to fit out and arm, fitted out and armed, caused to be fitted out and armed, and were knowingly concerned in fitting out and arming, a certain steamship called the “Itata,” whicli was then and there in the possession and under the control of certain citizens of the republic of Chili, known as the “Congressional Party,” and who were then and there, in said republic,
The counsel for the United States deny that the privileges thus asserted by Mr. Catton exist; contending, in the first place, that he ceased to be vice-consul of Chili upon the overthrow' of the government by which he was accredited. If the position of the counsel for the United States in this respect is correct, the question is of course ended, and Mr. Catton occupies the position of an ordinary witness subpoenaed in the cause. But I am unable to take that view of the matter. The court cannot say that the person who holds the unrevoked exequatur issued by
But, accepting Mr. Catton as the duly authorized and acting vice-consul of the Chilian government, 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 is very clear that by the law of nations consuls and vice-consuls stand upon a very different footing from ambassadors and ministers. The latter are not amenable to either the civil or criminal jurisdiction of the country to which they are deputed; not so, however, the former. 1 Whart. Int. Law Dig. pp. 767, 775, 776; Wools. Int. Law, p. 162; 1 Kent, Comm. 45, 46. But it is contended that such immunity attaches to the vice-consul of Chili by reason of the treaty concluded between the United States and that country on the 29th of April, 1832. The first subdivision of article 31 of that treaty provided that it should—
“Bemain in full force and virtue for the term of twelve years, to be reckoned from the day of exchange of the ratification; and, further, until the end of one year after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the 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, which arose
It will therefore be seen that while the court held, in Dillon's Case, that the provision of the constitution securing to the acc'used 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 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 subpoenaed as a witness for the defendants, but on behalf of the prosecution. And if lie 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 c 1 its existence will be upheld as those of an independent nation. Williams v. Bruffy, 96 U. S. 176. 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.