Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1900

Mr. Adee to Mr. Porter.

Department of State,
Washington, August 9, 1899.

No. 656.]

Sir: I inclose for your information copy of papers, as indicated below, relative to the violation of the consular dwelling of Mr. Albion W. Tourgée, at Arcachon, in the district of Bordeaux, which, it is understood, has been informally brought to your attention.

You will observe that Consul Tourgée represents that last winter, under the advice of his physician, he decided to take hydropathic treatment at Arcachon, which is on the seashore, 30 miles from Bordeaux, but within his consular district. The medicated baths being the most important part of this treatment, it was necessary to secure a house with a bathroom. One was found, and a customary memorandum, which constitutes only a verbal lease, was exchanged in duplicate, and the rent for four months paid in advance. The agent who had charge of the renting was asked if there were any reservations, and replied that there were none except a detached wine cellar in a corner of the ground. Upon moving in, December 1 last, it was found that the door of the bathroom was locked. On being requested to deliver the key the proprietor refused to do so. The French law, Mr. Tourgée says, not permitting an action to compel specific performance on the part of the landlord, there was nothing to be done but to surrender the villa and sue for damages, or dispense with a part of the treatment and refuse to pay the second installment of rent when due. He chose the latter alternative, and so informed the landlord. The landlord, in April last, instituted proceedings to recover this installment of the rent, in the course of which he procured the issuance from the tribunal civil of Bordeaux of a “writ of search and seizure,” which authorized the seizure of the furniture and movable goods belonging to Mr. Tourgée in the house occupied by him at Arcachon. Mr. Tourgée refused to permit the writ to be executed, whereupon a bailiff, with the assistance of a commissary of police, forcibly entered the consul’s dwelling, the latter protesting and stating that he was consul and his dwelling inviolable. They searched the place, but, as they said, finding his effects of insufficient value to pay the rent and defray expenses, did not seize the same.

Mr. Tourgée states that the commissary, while endeavoring to enter the house, said, “I don’t concern myself with conventions, consuls, or flags; I have the court’s order; that is enough.” And that the bailiff, pointing at the American flag hanging over the door, said, “We do not respect that flag.” Mr. Tourgée also states that both he and his daughter were forcibly pushed out of the way by the officers who entered the house.

As indicating the aggravated character of the violation of the consular dwelling, it is further stated by the consul that, “owing to the fact that my subordinate officer in the consulate is not familiar with the laws and customs of the United States essential to the administration of consular affairs, I have been compelled during my long illness to perform a large part of the work of the consulate at my residence in Arcachon. All the mail is forwarded here without being opened. The consular seal is here in my possession, and all except the mere routine work of the consulate is here performed by me and by clerks under my control. This is not only my personal residence, but the one where my official duties are transacted also.”

On the same day that the writ was served Mr. Tourgée sent an official protest against the violation of his dwelling to the commissary of police, to which the latter has never replied; He also filed with the prefêt of the department a detailed statement of the facts and a formal protest, and, as he then thought the issuance of the writ a mere inadvertence on the part of the judge who had signed it, suggesting that the judge should certify that it was an oversight to issue such a writ on account of the provisions of the treaty, and that the commissary and bailiff should be reproved for excess of zeal. The prefêt personally acknowledged the receipt of the papers and avowed himself in no respect responsible for the action of the judicial officers. At his instance the consul next addressed the tribunal civil of Bordeaux, stating the facts and protesting that the issuing of such a writ was a judicial violation of the treaty. M. Calvé, the president, in reply, admitted the illegality of the writ, but referred the consul to the vice-president of the tribunal, who issued the writ, and who alone, he said, could act with propriety upon the question of its disavowal. He added that the complainant’s attorney had just placed in his hand a letter from the complainant expressing his willingness to have the writ declared void. (Mr. Tourgée says the fact was that the complainant, being advised that he had no hope of recovery, had filed a retraxit; in other words, consented to a dismissal at his own cost.)

In accordance with M. Calvé’s suggestion, the consul next addressed himself to M. Lasserre, the vice-president. This magistrate, after ten days, replied, neither admitting nor denying anything, but merely stating that it would be necessary for the consul to make a complaint to the procureur of the Republic for the department with regard to the conduct of the commissary and bailiff. The consul, considering this an effort to shift the responsibility on the mere ministerial agents, replied, stating that he had no personal complaint to make against these officers, but that he contended that the writ was issued in violation of treaty, and he suggested that the act of the judge should be officially disavowed.

The consul states that he was approached by a party, who professed to represent the prefêt, with a proposition that if he would waive a written disavowal by the judge and a written reprimand to the officials, the prefêt would arrange that the commissary and bailiff should come in uniform and apologize for what they had done. Mr. Tourgée, however, insisted upon a written disclaimer of the right to issue a writ, as well as a written reprimand to those executing it.

Subsequently, on June 15, the consul received a letter from the prefêt, saying that the procureur of the Republic had made an investigation and decided that neither the commissary nor the bailiff, on the occasion of the invasion of the consul’s dwelling, had used any word disrespectful to the flag of the United States or had examined the papers deposited in his dwelling. This the consul characterizes as an attempt to avoid the real issue. He accordingly made answer covering the whole matter and stating that he would report the case to his Government.

The convention of February 23, 1853, between the United States and France, relative to consular privileges, besides granting to consular officers the privileges usually accorded to their offices, “such as personal immunity except in case of crime,” etc., contains the following special provisions:

“They may place on the outer door of their offices or of their dwelling houses the arms of their nation * * *; and they shall be allowed to hoist the flag of their country thereon.” (Art. 2.)

“The consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext. In no case shall they examine or seize the papers there deposited.” (Art. 3.)

A perusal of the “writ of search and seizure” and the “return” made thereon, copies of which are inclosed with the consul’s dispatch, plainly shows that there has been a violation of the treaty in this case. Mr. Tourgée’s letters of April 11 and June 30, 1899, to the prefêt (inclosures C and I of his dispatch) clearly and forcibly set forth the salient points. The case seems to the Department to be one calling for diplomatic remonstrance. You are accordingly instructed to bring the case to the attention of the French Government and to ask for a compliance with the reasonable request of Mr. Tourgée, that the acts of the judicial authorities in this case be disavowed and the responsible officials properly punished.

I am, etc.,

Alvey A. Adee,
Acting Secretary.

[Inclosure.]

Mr. Tourgée to Mr. Hay.

United States Consulate,
Bordeaux, France, July 3, 1899.

Sir: I have the honor to report a violation of the treaty of 1853 between the United States and France, which the local authorities for more than two months have neglected to excuse or disavow.

Before stating the circumstances I beg to call attention to some of the provisions of this treaty, which seem to be quite exceptional, especially in its provisions regarding the rights and immunities of consuls in the two countries. It differs from all other French treaties, so far as I can learn, in specifically providing for the same immunity for the “dwelling” or “dwelling-house” of the consul as for the consular offices. There seems to be an inclination on the part of the French authorities either to ignore these provisions or to regard the immunities of the American consul as identical with those of other countries. I had heard of difficulties at this and neighboring consulates, resulting from attempts of the local authorities to exercise control over consular dwellings, either by seeking to quarter troops or to exercise the right of search and seizure therein, but I had had no difference with the local authorities whatever, up to this time, beyond some natural divergence of opinion in regard to jurisdiction of the estate of a decedent American citizen.

At first, I had no doubt that the matter would be amicably adjusted so that I might report it rather as an unintended accident than a deliberate violation of treaty stipulations. I steadily refused, however, to discuss the matter except in writing, even after the ambassador at Paris, approving my action which I reported to him, directed me to continue my efforts in this direction. This I did, not only to guard against possible misconception, but also because I deemed it not proper for one holding a mere consular position to assume the relation to an international question vested only in those having plenipotential powers. The matter has long ceased to be of personal concern to me. The man who was at the bottom of the official demonstration against me has withdrawn his claim and accepted the terms I had offered for adjustment of our differences. Indeed, I was at all times willing to submit the matter to the adjudication of any court. I have not one sou of personal interest in the matter and my only contention is that the action was a deliberate violation of the treaty and a gross affront to the flag of the United States.

The convention between the United States and France of February 23, 1853 (French confirmation September 11, 1853), provides, among other things:

A. Generally, that the consular representatives of each country shall enjoy in the other (a) The privileges usually accorded to their offices, and (b) all the privileges, immunities, and exemptions that may be granted the like agents of the most-favored nation.

B. Specially, (a) personal immunity except in case of crimes, and (b) that they shall never be required to appear in court even as a witness.

C. That they may place on the outer door of their offices “or of their dwellings” the arms of their nation, etc., * * * and they shall be allowed to hoist (French, deployer) the flag of their country thereon.

D. “The consular office and dwellings (French, chancelleries et habitations) shall be inviolable. The local authorities shall not invade them (French, ne peuvent les envahir) under any pretext. In no case shall they seize or examine (French, visiter ou saisir) the papers deposited therein;” that is, in the “offices or dwellings.”

In the face of these provisions, the following occurred:

1. On the 4th day of April, 1899, M. Lasserre, the vice-president of the tribunal civil of Bordeaux, issued a writ of saisie-gagerie, ordering a bailiff to enter and search my dwelling and seize all personal effects belonging to me therein. A translation of said writ is attached hereto marked “A.”

2. The bailiff named in said writ appeared at my dwelling on the 10th of April following—a week after its issue—and, on my refusal to permit said writ to be executed, he procured the assistance of the commissary of police of Arcachon, the commune in which my dwelling was located, forcibly pushing me out of the doorway where I stood forbidding their entrance, thrusting my daughter, who stood beside me, violently against the hatrack in the hall, and pushing me the whole length of the hall to the stairway at the end, some 12 or 15 feet. The accompanying picture¹ was taken by an artist who saw the whole affair and is entirely correct.

3. The same proceeding was repeated at every door, I forbidding entrance and the commissary in each case removing me by force. Having been an invalid for more than a year I was not able to put up much of a fight, but I did not one instant cease to resist and protest while one of the posse remained in the house. At the same time my language was entirely respectful, and, in the main, theirs to me was of like character.

4. The procès-verbal, or return of the writ, marked “B,” signed by both officials and each member of the posse, admits, (1) that I refused admission to the parties and claimed the house was inviolable as being the dwelling of a consul of the United States, situate in his consular district; (2) that I continued to protest against and forbid such invasion; (3) that no seizure was made. The procès-verbal says they could find nothing to seize. The statement is astounding in view of the facts. Of course, as the villa was rented furnished, no one would expect to find much furniture of the tenants in it. There were, however, rugs on which some of the party stood which are valued for insurance at more than the whole claim, which was $272; books, typewriter, silver, a new invalid bath chair, and other personalty, not including clothing, certainly worth twice as much more; and in an unlocked jewel case in a wardrobe opened by the bailiff there were diamonds and other jewelry never appraised at less than $3,000, or ten times the value of the claim. Why were none of these things seized?

5. It is quite impossible Frenchmen should not know the value of rare rugs, jewelry, etc. They knew they were violating the treaty, since the commissary said, while parleying at the door, “I do not concern myself with conventions, consuls, or flags; I have the court’s order; that is enough.” Thereupon he displayed his badge of office and ordered me to cease resistance in the name of the French Republic. The bailiff, jerking his thumb at the American flag hanging over the door, which had been referred to as my protection, said, “Nous ne respectons pas ce drapeau-là!”

These words show that they knew the character of the act in which they were engaged. Why did they not complete it by making seizure?

6. Perhaps the answer of this question may be found in the exceptional character of the writ. The writ of saisie-gagerie is a provisional execution, not very different in character from our writ of attachment. In ordinary cases it is only issued after notice has been served on the defendant to show cause why such writ should not be allowed. This notice is called a “commandement” and is the initial process in all actions, its express purpose being to prevent the defendant being taken by surprise and deprived of his opportunity for defense. It can only be dispensed with by express order of the judge granting the writ; and this order can only be allowed when the judge is satisfied that the defendant is likely to remove his person or his property out of the jurisdiction. In the case of a French citizen, only the most persistent bad character would justify the issue of such a writ without notice. In the case of a foreigner, the fact that he is a nonresident of the Republic is held to justify it if his residence is of a temporary character. The fact that I was a consul of the United States showed that I was a foreigner and was apparently held by the judge to be sufficient reason for issuing the writ secretly, ordering no “commandement” to issue, and that the writ should not be recorded. This shows conclusively that my official character was called to the attention of the judge, and he ordered the entrance and search of my dwelling to be made with full knowledge of the same. As the treaty is bound up with the codes in one volume in general use, he must also have been fully aware of its provisions. The fact that the complainant waited a week after the writ was issued before having it executed, though it required less than two hours to reach my dwelling, shows that his claim of apprehension that I would remove my property was wholly false.

7. These facts lead me to believe that the writ was not intended to effect a seizure, but to be used as a threat. The dread which foreigners, especially Americans, have of a French court is well known. The plaintiff was aware of the precarious condition of my health—so precarious that his agent insisted on a special guarantee that 300 francs in addition to the rent should be paid in case of my death on the premises. He evidently thought that, rather than risk the excitement attending such a proceeding and have my family annoyed by a brutal sheriff and his posse, I would buy my peace by paying his unjust demand. Both he and the judge knew the consul of the United States was not likely to leave the country to avoid the payment of such a petty sum, and that it was quite impossible for me to conceal any property in a country so full of officials. If a seizure was made, the writ would have to be recorded, and all of the parties might be subjected to a troublesome suit for damages. So no seizure was made, the writ not recorded, and the plaintiff filed, after a time, a statement that the claim against me would not be further pressed. I am satisfied, therefore, that this proceeding was intended not for the collection of an honest claim, but as an intimidation merely.

8. I do not refer to these things as relevant to the judge’s right to issue said writ. If he had a right to issue an order commanding an officer to enter the dwelling of the consul under any pretext whatever, he had jurisdiction to do so for any reason that seemed to him good. There can not be an inquiry as to the sufficiency of such pretext. I cite these things only to show that his act was intentional and deliberate. He knew he was ordering an “invasion” of the dwelling of a consul of the United States which the treaty declares the authorities shall not “invade”—that is, enter without permission, “under any pretext.”

9. The treaty provides that the local authorities shall not “examine” or seize the papers “therein deposited”—that is, in the “consular offices and dwellings.” This house had been used for four months as a consular office. Having no one with me in the consulate who had sufficient familiarity with American law and business to do more than the routine work, I was compelled to do all the correspondence, dispatches, etc., myself, even when confined to my bed. Several of the rooms entered contained consular reports, books, and papers in various stages of completion. They did not “examine” these in the sense of reading them, because they were ignorant of English, but they could not make such search as they admit in the procès-verbal without examining the papers deposited in the house. If they did not, their procès-verbal is false.

10. How did it all happen? I had been ill with a distressing malady for eight months when my physician decided that the only chance to save the United States Government the expense of shipping me home in a box was to remove me to Arcachon on the seashore, some 30 miles away, as soon as I was able to endure the trip, there to take specific hydropathic treatment. The medicated baths being the principal thing on which the hope of recovery rested, it was necessary to secure a house with a bathroom, especially as part of the treatment considered very important could not be given in an ordinary room. A bathroom is not common in the houses of this section, only a few even in a health resort like Arcachon containing such convenience. One was at length found which my physician and family pronounced suitable. The agent who had charge of the renting was asked if there were any reservations, and replied there were none except a detached wine cellar in a corner of the grounds. The customary memorandum, which constitutes only a verbal lease that can not be given in evidence before a court, was exchanged in duplicate, the rent for four months paid in advance, and on December 1, 1898, I was successfully moved to the new quarters. On investigation it was found that the door of the bathroom was locked, and on being requested to deliver the key the proprietor refused to do so. As French law does not permit an action to compel specific performance on the part of the landlord, there was nothing to be done but to surrender the villa and sue for damages, or dispense with a part of the treatment and refuse to pay the second installment of rent when due. I chose the latter, and so informed the landlord.

11. It was in an attempt to collect this second installment of rent that the landlord procured the extraordinary writ of saisie-gagerie and made forcible entry and search of my dwelling. Fortunately I had so far recovered as to be able to meet and forbid the invaders, asserting my legal immunity. Knowing his claim to be utterly false and fraudulent, he abandoned its further prosecution and accepted my proposition for an adjustment of our differences, viz: that I should occupy the villa until May 1, as an equivalent of damages already accrued. I then left it and he entered into possession without further demur.

12. I sent my official protest against the acts of the officers and posse violating my dwelling to the commissary of police on the same day. He has never had the courtesy to acknowledge its receipt. On the 12th and 14th of April I filed with the préfet of the department of Gironde a detailed statement of the facts and a formal protest. At that time I supposed the issue of the writ was a mere act of inadvertence on the part of the judge who signed it, my attention not having been directed to the extraordinary character of the same. I therefore suggested that the judge should certify that it was an oversight to issue such a writ, on account of the provisions of the treaty, and that the commissary and bailiff be reproved, in writing, for excess of zeal. The préfet acknowledged receipt of these papers, and avowed himself in no respect responsible for the action of judicial officers. At his instance, therefore, I next addressed the president of the tribunal civil of Bordeaux, stating the facts and protesting that the issue of such a writ was a judicial violation of the treaty. M. Calvé, the president, answered both personally and in writing, admitting the illegality of the writ by explaining that, according to the practice of said tribunal, all proceedings in regard to process issued by either of the judges must be taken before the judge issuing them; that, although the writ ran in his name, it was issued by the vice-president, M. Lasserre, who could alone with propriety act on the question of its disavowal. This distinguished jurist is the only official who has expressed any regret for an act which he denounced as not only in violation of the treaty but a wholly unjustifiable breach of international law. His letter of May 4 fully sustains my view of the inviolability of the consular domicile. It is, however, wholly personal and not in any wise official. So far as I am concerned it is satisfactory, in that it confirms the action of the plaintiff in the writ, but it is not a disavowal of the jurisdiction exercised by the tribunal, nor an official admission that the acts of the administrative officials are not approved, which seem to me essential to the proper settlement of the question.

13. I then applied to M. Vice-President Lasserre, being determined either to obtain a written disavowal of the right to issue such a writ against a consul of the United States or an official assertion of such jurisdiction. This magistrate replied, after ten day’s delay, neither admitting nor denying anything, but merely saying that it would be necessary for me to make complaint to the procureur of the Republic for this department with regard to the conduct of the commissary and bailiff. As this seemed to me an effort to shift the responsibility on the mere ministerial agents, I replied by stating that I had no personal complaint to make against these officers. I suggested that the judge had ordered an act which I believed violative of the provisions of the treaty; that if he had a right to issue such order, the officers had a right to execute it and to use necessary force in doing so. What I contended was that the writ was extrajurisdictional, being in violation of the treaty. I had no personal complaint to make. The huissier had been rude; but one does not expect perfect manners from this class of people. I only suggested, as my duty required me to do, that the vice-president had ordered the huissier (bailiff) to perform an act clearly in violation of the treaty and he had obeyed that order. While it was proper that the officers should be rebuked, it could not logically be insisted upon until the act of the judge was officially disavowed.

14. I may say that in the meantime I have been approached by a party who professed to represent the préfet, with a proposition that if I would waive a written disavowal by the judge and a written reprimand to the officials, the préfet would “arrange” that the commissary and huissier should come in uniform and apologize for what they had done, I replied that while this might be gratifying to me personally, and might read well in a newspaper, I did not think it consistent with my duty to my Government to accept such an informal reparation. What would be requisite, in my judgment, was a written disclaimer of the right to issue a writ, as well as a written reprimand of those executing it.

15. On the 15th of June, 1899, I received a letter from the préfet, saying that the procureur of the Republic had made an investigation and decided that neither the commissary nor the huissier on the occasion of their invasion of my dwelling had used any word disrespectful to the flag of the United States or had examined the papers deposited in my dwelling. This seemed to me an attempt to evade the real issue and let matters drag along as had been done in similar cases until they died from inanition.

I therefore made answer covering the whole ground, lest it should be claimed that I had abandoned any part of it, and declining to have any further connection with the matter.

I send a copy of this dispatch, with inclosures, to the honorable ambassador at Paris by the same mail.

Pending this controversy the Cour d’Appel of Limoges has decided the very questions raised in this case, fully and intelligently. The case is reported in La Loi of May 26, 1899. I inclosed the syllabus of the same to the préfet, to M. Calvé the president of the tribunal, and to M. Lasserre, the vice-president. I inclose herewith a translation of said syllabus, marked “J.”

In conclusion, the admitted facts are:

I. The vice-president of the tribunal civil of Bordeaux issued a writ ordering a search of the consul’s dwelling and the seizure of all the goods and chattels found therein.

II. He ordered this writ to be executed without issuing the ordinary “commandement,” or order to show cause.

III. He ordered the writ to be executed without being entered on the record for the express purpose of preventing the consul from obtaining knowledge of suit brought against him.

IV. The huissier, being refused leave to execute the writ because the consul’s dwelling was inviolable under the treaty, obtained the assistance of a commissary of police and a posse and made a forcible entrance against the consul’s protest and prohibition.

V. It is not denied that the consul was forcibly removed from the door in which he stood, with the treaty in his hand, appealing to the flag above him for protection in the immunity it guaranteed.

The denied facts are:

I. That the words used by the officers at the time of forcing an entrance to the consular dwelling were disparaging to the flag of the United States.

Comment.

Their acts certainly were—

II. That the officers violated the treaty by “examining” the books and papers “deposited” in the consular dwelling.

Comment.

They made return that they searched the dwelling. This could not have been done without examining these papers.

I have made this statement minute in detail to avoid the necessity of copying the various protests made to different officials, which are of necessity merely repetitions of each other.

So far as I am personally concerned the letter of M. Calvé, the president of the tribunal civil of Bordeaux, is entirely satisfactory. It not only confirms my view as to the inviolability of my domicile, but also my previous information that the plaintiff had abandoned any further prosecution of the writ. There has been, however, no official disavowal of the jurisdiction exercised by the vice-president, no reproof of the subordinate officials, nor any apology for the action of the judge or the officers, which seem to me to be essential to a proper amende for acts derogatory to the flag and dignity of the United States. I can not ask for an action on the part of the procureur, because I have no longer any personal interest in the matter and am not officially authorized to do so. It is now a question whether the Government will require reparation for a gross affront to its flag by the action of the judicial and administrative officials of France or pass it by unnoticed. So far as I am concerned the incident is closed with this report. I inclose copies of the papers necessary to a full understanding of the case, to wit: “A,” copy of the writ of saisie-gagerie in translation; “B,” translation of the procès verbal or return made upon said writ; “C,” translation of protest made to the préfet of the department of the Gironde; “D,” copy of letter of acknowledgment of préfet; “E,” copy of statement sent to the president of the tribunal civil of Bordeaux, in support of my contention that the writ was a judicial violation of the treaty; “F,” extracts from reply of president of tribunal; “G,” letter of vice-president who issued writ; “H,” letter of préfet announcing result of inquiry made by the procureur of the Republic; “I,” reply to this letter of the préfet; “J,” syllabus of case decided by the cour d’appel of Limoges, translated. (Especial attention is called to this as showing the identity of the claims I have, made throughout.)

Very respectfully,

Albion W. Tourgée.

[Inclosure A.—Translation.]

Copy of writ of search and seizure.

To Monsieur le President du Tribunal of First Instance of Bordeaux.

Monsiectr le President: Mr. Felix Breton, liquoriste, living in Bordeaux, Cours Victor Hugo, No. 15, having as his attorney, Mr. Ferrand, has the honor to set forth to you that he verbally leased to Mr. Albion W. Tourgée, United States consul, living in Bordeaux, Cours du Jardin, Public No. 52, the “Villa Trocadéro,” of which he is the owner, situated in the Ville d’Hiver, for the sum of 2,400 francs—1,000 francs being payable on the 1st of December, 1898, and 1,400 on the 1st of April, the current month—for a period of eight months, commencing the 1st of December last and ending 31st of July next; that four months of this rental, due 1st of April current, remains unpaid; that under these circumstances the exponent desires to have issued a writ of seizure against his tenant on his furniture and other movable goods on the premises let, but that it is to be feared, that if given notice by means of writ, the said Albion W. Tourgee might cause his property to be removed, hence the reason why the exponent requests M. le President to be so good as to authorize the issuing at once without previous notice of a writ of seizure against the said Albion W. Tourgée on his furniture and movable effects belonging to him, and which may be found in the “Villa Trocadéro,” situated in Arcachon in the Ville d’Hiver, which was let to him verbally by the exponent and this as security for the payment of 1,400 francs.

• First. The sum of four months rent demandable in advance on the 1st of April current.
• Second. The sum of 400 francs approximate estimate of interest and expenses to order (considering the urgence) a provisional execution of your writ at once, even before its registration.

We, Emmanuel Lasserre, vice-president of the civil tribunal of first instance of Bordeaux, having considered the foregoing petition according to the provisions of the law,

Authorize the exponent to have executed at his immediate request, and without previous notice, a writ of seizure on the furniture and movable goods belonging to Mr. Albion W. Tourgée, which are to be found in the house let to him verbally, situated at Arcachon, Ville d’Hiver, styled by the name of “Villa Trocadéro” this for the security of the payment of the sums referred to in the preceding petitions ordered by virtue of the urgency, the provisional execution of the present writ at once even before its registration.

Bordeaux, this 4th day of April, 1899.

Emmanuel Lasserre.

[Inclosure B.—Translation.]

Procès verbal or return made on writ of seizure.

On the 10th of April, 1899, and at the request of Felix Breton, liquoriste, residing in Bordeaux, Cours Victor Hugo, No. 15, for whom a domicile has been elected at our offices and also at the offices of the Mairie of the Commune of Arcachon:

We, the undersigned Réné Rousse, bailiff at the circuit of Bordeaux, residing at 7 Rue Ravez, serve a notice on and leave a copy with Mr. Albion W. Tourgée, United States consul, now residing in Arcachon in the villa of the petitioner, situated in Arcachon, Ville d’Hiver: “Villa Trocadéro,” of the writ granted at the foregoing request.

In order that he should not ignore it.

In addition to and by virtue of said request and ordonnance:

We certify, that we, accompanied by our witnesses hereafter named, proceeded to Arcachon, Ville d’Hiver, “Villa Trocadéro,” the present residence of Mr. Albion W. Tourgée, and arriving there we commanded him in the name of the law and of justice, instantly to pay the petitioner or us bailiff, bearer of documents and duly entrusted with the commission:

1. The sum of 1,400 francs, amount of four months rent, payable in advance from 1st of April, for the place he occupies and holds of the petitioner pursuit to a verbal lease of his villa situated in Arcachon, Ville d’Hiver, at the rental of 2,400 francs for eight months. The said rent payable in advance 1st of December and 1st of April, 1899.

2. The cost of these presents.

Having declared to him, that failing this, he would be immediately constrained by the writ of seizure of all his furniture, effects, and movable goods in accordance with law.

This done, and addressing him personally, he replied that he would not pay the sum claimed of him as he did not agree with our petitioner, and besides he refused us permission to enter his house. This is the reason why we proceeded to the commissary of police at Arcachon, and after having explained the object of our visit, requested him to assist us, to which he complied, and returning in the company of this magistrate, we again knocked at the principal door, and, having entered the dwelling of the petitioner, the said Mr. Albion W. Tourgée forbade him a second time to enter the said dwelling, and only allowed us to enter under a protest, that he was consul, and that his dwelling was inviolable. In view of the reply which precedes the default of payment of the sum claimed, we wished to seize and place in the hands of the law and of justice the furniture, movable goods, and wearing apparel in the said house, which were the guaranty of the proprietor. But after having made a search, we found in his apartments divers effects and personal linen, the value of which was insufficient to defray expenses and pay the rent. For this reason we have drawn up the present declaration of insolvency in the presence of Messrs. Paul Lafargue and William Sauvetre, witnesses, residing in Bordeaux, who have signed with us the copy delivered to Mr. Albion W. Tourgée, also signed by the commissary of police of Arcachon as well as by Mr. Etchard, whose presence we deemed necessary in order to make the search and discriminate between the objects belonging to the debtor.

Costs, francs 25.65. The sheet employed, francs 1.20.

• P. Lafargue.
• E. Berthe.
• R. Rousse.
• William Sauvètre.
• Etchard.

[Inclosure C—Translation.]

Mr. Tourgee to Préfet of the Department of Gironde.

Consulate of the United States,
Bordeaux, April 11th, 1899.

Monsieur le Préfet: I beg to lay the following facts before you for consideration and to enter my protest against them as a gross violation of my consular rights and privileges as denned by the common law of nations, and also by special treaties between the Republic of France and the United States of America:

1. It is well known to you that by designation of my Government and by the exequatur of the Republic of France, for nearly two years within the departments hereinafter named, to wit:

Gironde, Ariège, Basse-Pyrenees, Hautes-Pyrenées, Gers, Haute-Garon, Landes, Lot-et-Garonne, Tarn-et-Garonne and Tarn, I have exercised the functions and been guaranteed the rights and privileges of a consul of the United States in the Republic of France.

2. During the period I have scrupulously obeyed all laws of the country to which I am accredited; faithfully discharged my duties as such consul without interference with the customs or interests of the French people; have contracted no debts which I am not able many times over to discharge; have had no controversies with citizens of the Republic of France which I have not from first to last expressed a willingness to submit to the arbitrament of the tribunals of the Republic; and in all things have conducted myself as a peaceable and well-disposed resident of said district.

3. Beyond this, my reports to my Government and by my writings which have appeared in the most prominent journals of the United States, having an established reputation as an author and economist, I have stipulated and encouraged a more extended trade and closer relations between the people I represent and the citizens of the Republic to which I am accredited, having urged from the first the extension of reciprocal relations by special convention particularly favoring the staple exports of the port of Bordeaux.

4. While scrupulous and accurate in the discharge of my duties I have shown no favor and taken no advantage of my position to make profit out of the necessities or to interfere with the interests of any class or individual. There has been no favoritism in this consulate, every shipper’s business and interest having been conducted and protected with the utmost care, being regarded as a sacred trust.

Under these circumstances, I submit that the facts I am about to relate constitute an invasion of my consular rights and privileges of the utmost gravity, especially when we consider the relation which the Government and people of the United States are expected to sustain to the great exposition of next year at Paris.

Owing to my health I have been compelled for some months to reside at Arcachon. For the benefits I have derived therefrom I feel extremely grateful and have urged, by articles in various journals in the United States, the merits of this resort upon the American people, to whom it was almost unknown. A difference having arisen between myself and the proprietor of a villa, which I had rented, as to whether the lease included the whole villa or only a part of it—there being no reservation in the lease and no verbal reservation of a most essential part, that part, indeed, which had constituted the chief inducement with me to rent this villa instead of another—I offered to pay the second instalment of the rent, covering the period from April to August, upon being given possession of the premises for which I had contracted, or to leave the matter to the decision of any judge or tribunal of France, being perfectly willing to deposit with any person such judge might designate, the entire amount of the rent in question or such other sum as might be deemed necessary to protect the claimant from all loss.

On yesterday, April 10, a man claiming to be a huissier of the court of première instance of Bordeaux, appeared with a writ purporting to have been issued by said tribunal against me as “consul des Etats-Unis,” commanding and directing the said huissier to enter my dwelling and seize my personal effects. On my refusal to permit such search and seizure, the huissier and his witnesses departed, soon returning with the commissary of police of Arcachon. I met him and refused admission to my domicile to him and the five men in his company, explaining the facts that as a consul of the United States I was exempt from any invasion of my domicile “by local authorities under any pretext,” according to the express terms of the treaty of 1853 between France and the United States. He merely replied: “We know nothing about treaties or consuls; the court has ordered the search and it must be made!” At the same time the huissier having the writ, pointing to the consular flag which was flying above my door said, with tone and gesture of the utmost contempt: “Nous ne respectons pas ce drapeaula!” Thereupon the commissary assailed me violently, and with the aid of those persons in his company pushed me aside and entered the house, I protesting at every step and requiring the commissary to go in advance of the others and personally open each door before which I stood and removing me by force and conduct the search in the name of the Republic. After it was concluded I served him with written notice of protest, a copy of which will be handed you herewith.

Owing to the fact that my subordinate officer in the consulate is not familiar with the laws and customs of the United States essential to the administration of consular affairs, I have been compelled during my long illness to perform a large part of the work of the consulate at my residence in Arcachon. All the mail is forwarded here without being opened; the consulate seal is here in my possession and all, except the mere routine work of the consulate, is here performed by me and by clerks under my control. This is not only my personal residence, but the one where my official duties are transacted also. By the treaties between the Republic of France and the United States it is expressly provided that both the offices and dwellings of consuls shall be inviolable and that the local authorities shall never invade them under any pretext.

I find myself compelled, therefore, most regretfully, to protest against this outrage, of violence against my person, and forcible invasion of my domicile, on the following grounds:

1. The issue of a writ of search and seizure against the person and domicile of one designated in the writ itself as “Consul des Etats-Unis” was judicial violation of my consular rights and privileges which it can not be claimed was unintentional, since my official character is recognized by the terms of the writ itself.

2. That the issue of such a writ without notice, summons, hearing, or opportunity to be heard, makes such violation of consular privilege peculiarly gross and inexcusable, because such a writ is held in all civilized countries the most disgraceful and humiliating judgment that can be passed on any man except condemnation for crime.

3. That such writ was granted wholly upon ex parte testimony and without requirement of any bond to indemnify me for loss, injury, and humiliation from the execution of said writ, apparently distinguishing against me in personal right because of the fact recited therein.

4. That the enforcement of this writ vi et armis by the police officer of the Republic and those in his company was in express violation of the personal immunity granted me by treaty, except in case of crime, no crime being alleged.

5. That the treaty expressly exempts the papers and property of the consulate from examination, scrutiny, or seizure by local authorities. That in this case the books and papers of the consulate were pawed over and scrutinized by the parties to whom the commissary of police gave forcible entrance and possession against my constant protest and prohibition.

6. That the declaration by parties in company with the commissary and acting under his control, that they cared nothing for the consular flag or the person of the consul, was an aggravation of the injury and affront.

I submit said protest for such action as you may see fit to take, M. le Préfet, before forwarding the same to my Government, in the sincere hope, indeed, to avoid the necessity for such representation.

I have, etc.,

Albion W. Tourgée.

[Inclosure D.—Translation.]

Prefecture of La Gironde, Office of the Préfet,
Bordeaux, April 15, 1899.

Monsieur le Consul: I have the honor to inform you that I have submitted your complaints of the 11th and 14th instant, in relation to the things which befell you at Arcachon on the 10th, to the minister of foreign affairs.

Receive, M. le Consul, the assurance, etc.,

Le Préfet.

[Inclosure E.]

Reasons for regarding the forcible entrance of the Villa Trocadéro (April 10, 1899), and the personal violence offered to myself and family by the officers of the French Government as a violation of my consular rights and privileges.

1. By the universal law of nations, the person of the consul and the persons of his family, he and they not being citizens of the country to which he is accredited, are exempt from arrest or restraint except for crime. If the consul is a citizen of the country in which he resides, neither his person nor his property is exempt from arrest or seizure or any of the ordinary processes of law, but only the consular office and papers.

2. This rule of international law is greatly strengthened by the fact that Article II of the treaty of 1853, between France and the United States, provides: (1) That they “shall be allowed to hoist the flag of their country on the door of their offices or of their dwelling houses;” (2) that they “shall never be compelled to appear before the courts. When any declaration for judicial purpose” is desired of them, they “shall be invited to appear in court; their testimony shall be requested in writing.”

3. By Article III of said treaty, it is provided that “the consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext. In no case shall they examine or seize any papers there deposited. In no case shall these offices or dwellings be used as places of asylum.” If only the consular “offices” were intended to be exempted, why is the term “dwellings” always coupled with it in this treaty? Evidently because it is expected that the dwelling of the consul will be, as it generally is, separate and apart from the office of the consul, and the purpose of the treaty is to protect both from invasion by the local authorities. The “dwelling” of the consul—I do not know what term is used in the French copy of this treaty, but as every treaty is executed in two languages, one of each in the language of the contracting powers, it must be an agreed equivalent of the English word “dwelling,” which is the broadest of all terms used in that language to signify the place where a man lives either for a long or short period—a habitation or mere place of lodgment. It must mean in the treaty, therefore, the place where the consul is lodging, whether temporarily or permanently. I think likely the French equivalant in the treaty is “demeure,” that is, the place of habitation of the consul.

4. The consular “dwelling” may be near or remote from the consular office, provided it is within the limits of his district. Outside of that it ceases to be a “consular” dwelling and loses all immunity, because the consul ceases to have any authority or privilege as such when he goes beyond his specific jurisdiction. In my case, the Government of the United States designated me as consul for the ten departments of southwest France; and this designation is confirmed by the exequatur of the President of the Republic of France, which expressly designates those ten departments within which my consular function is to be recognized.

5. My Government requires that I shall keep an office, “The consular offices,” in the city of Bordeaux. These public offices I can not remove, because they are intended for the convenience of citizens of the French Republic and others in that port who may have consular business with the United States, and must be kept open during business hours. There is no law of the United States—and I submit that there can be none of the Republic of France—requiring me to retain my dwelling place in that city. I have my “dwelling” anywhere I may choose to locate for a long or short period in said district. I may do more or less of the work of the consulate in said “dwelling” and keep there such books, papers, and records of said consulate as I may see fit, because both are inviolable by the express terms of the treaty. As a matter of fact, all the correspondence of the consulate comes to my “dwelling” at Arcachon; here is kept one of the duplicate official seals provided by the Government; here all dispatches and reports of my Government are prepared and forwarded direct; here, in short, all official work of the consulate is performed, except the mere routine matter of invoices, bills of health, etc., connected with exportation.

6. If this were not the correct construction of the provisions of the treaty declaring both “offices” and “dwellings” to be inviolable and authorizing the consul to display his flag on both, then a mob may destroy the consul’s dwelling and kill him and his family without any violation of his consular rights and privileges.

7. Because of this, the issue of a writ of seizure and distrain directed against me as “Consul des Etats-Unis dwelling at Arcachon,” constituted in and of itself, a violation of my consular rights, while my permanent residence is at Bordeaux my “dwelling” is at Arcachon for the time being, and the court showed itself cognizant of that fact by the wording of the writ.

8. I am often required to do consular work in different parts of my district. Can it be contended that if I hang out my flag in a house rented as a dwelling for a week or a month while thus engaged that the police officials of any country hamlet have a right to come and, in spite of my protest and resistance, overpower me with force; examine whatever papers, books, or property of any kind I may have in my possession; take what they choose and leave what they may elect not to take, and yet not be guilty of violation of consular rights and privileges?

Albion W. Tourgée.

[Inclosure F.]

Extracts from a letter of M. Calvé, president of the tribunal civil of Bordeaux, of May 4, 1899.

After reciting the substance of my protest and the reasons why he could not take the initiative in the abrogation of a writ issued by the vice-president, he says:

“Moreover, by our law we have to refrain from expressing an opinion as to matters which may come before us as magistrates. For that reason I do not feel at liberty to express my opinion as to the application of Article III, of the convention of 1853, to the villa you occupied at Arcachon. I may be required to pass on the question of the validity of the writ issued by my colleague.”

He proceeds:

“Since writing the above a change has taken place rendering the amicable solution we are both seeking much more easy to reach. M. Ferrand, the complainant’s attorney, has just placed in my hands a letter from his client expressing his willingness to have the writ declared void.” (In fact, the complainant, being advised that he had no hope of recovery, had filed a retraxit; in other words, consented to a dismissal at his own cost.)

He proceeds:

“It is, therefore, no longer necessary to take account of the fact that the tribunal might have to pass upon the validity of the writ and the relation of Article III of the convention thereto. Now that I am at liberty to express an opinion on this question, I do not hesitate to say to you that your residence for several months in the villa Trocadéro unquestionably conferred upon it the immunity for which you contend as a consular dwelling under the terms of the convention. I feel confident that M., the vice-president, will concur in this opinion. His writ may therefore be considered as null, and its invalidity having resulted from another cause there can be no objection to a new decree retracting the grant of the writ of saisie-gagerie.”

memorandum.

On application to the vice-president, as will be seen by reference to his letter marked “G,” he refused to take any action looking to the annulling of the writ. This leaves me in the condition of a man politely put out of court with the only grievance of which I made complaint—the violation of the treaty—yet unacknowledged, and no regret expressed that it occurred.

A. W. T.

[Inclosure G.]

Mr. Tourgée to Mr. Lasserre.

Consulate of the United States,
Bordeaux, May 21, 1899.

Monsieur le Vice-President: I have the honor to inform you that on the 10th day of April last you authorized a writ of saisie-gagerie directed against me as consul of the United States.

As a natural result of such ordinance, the Huissier Rousse, with a company of people in attendance upon him, came to the villa Trocadéro at Arcachon, where I at that time had resided for some months, and where a great part of the business of my office was done and its records kept; and being denied admission or leave to execute said ordinance by the seizure and distraint of my property in said villa, procured the assistance of the commissary of police of Arcachon and forced an entrance to the same by the exercise of violence against the person of the consul, uttering insulting language against the consular flag which was duly displayed over the main entrance of my dwelling; examined the consular records and property against my protest, resistance, and denial of their right so to do.

I have the honor, therefore, to submit:

1. That the issue of a writ of distraint against a consul of the United States of America, without notice and upon ex parte evidence only, is a judicial violation of consular rights according to the common law of nations.

2. That in the treaty of February 23, 1853, between France and the United States, it is expressly provided (Article II) that such consul may place “the flag of his country” over the door of his “dwelling” and shall enjoy all the privileges and immunities of consuls of “the most favored nation.”

3. By Article III of said convention, it is provided (a) that “the consular offices and dwellings shall be inviolable;” (b) that “the local authorities shall not invade them under any pretext;” (c) that “in no case shall they examine or seize papers therein deposited.”

4. The like privileges and immunities are granted to the consuls of France in the United States.

Because of these facts it becomes my official duty to suggest to you—

1. That the issue of such a writ without notice or opportunity to defend and show, as I would readily have done, the fraudulent character of the claim against me was a judicial invasion of the privileges of a consul of the United States for the consular district of Bordeaux, which district embraces the ten departments of southwest France, in either one of which I had a right to have a “dwelling,” the undisturbed enjoyment of which is guaranteed to me by the exequatur of the Republic of France.

2. That the acts of the commissary of police and the huissier charged with the execution of your mandate in forcing an entrance into my dwelling, exercising violence against my person, examining the papers and records deposited therein, was the natural and logical result of such ordinance.

3. The contemptuous allusions made by the commissary of police and the huissier against the flag of the United States hanging above the door of the consular dwelling while engaged in executing said ordinance, though not a necessary result of the grant of such ordinance, were public insults to the flag of a friendly nation, made by officials representing the power and armed with the mandate of the tribunal.

Believing these violations of treaty rights to have been, so far as the action of the tribunal was concerned, the result of inadvertence rather than any unfriendly purpose, and being desirous to report it to my Government as an incident amicably adjusted in such manner as to call for no international action, * * * I stated in connection with my preliminary report that I had filed a formal protest with the president of the tribunal and the prefect of the department of the Gironde. In response to this formal protest the president of the tribunal courteously informed me that the ordinance having been validated by your action, any movement looking to its revocation must proceed under your initiative.

This being the case, I beg to suggest whether the proper course is not to annul said ordinance by a decree of the tribunal of equal dignity and formality, and also to formally disavow and condemn the action of the officers charged with its execution in violating the consular dwelling, using personal violence to the consul, and examining papers and records of the consulate therein deposited.

In adopting this course, my action has been especially commended by the ambassador of the United States at Paris as being of a kind calculated not only to preserve amicable relations between the two Governments, but also to avoid giving unnecessary publicity to an act which can not be justified by any possible interpretation of international law or treaty rights. Not having plenary powers, I am not authorized to discuss the incident except in writing, and can only suggest rather than demand such reparation as would be deemed satisfactory.

Permit me to suggest, therefore, Monsieur le Vice-President, whether the formal annulment of said ordinance, the disavowal of any purpose to assert such jurisdiction, and the express condemnation of the acts of the officers engaged in its execution would not be consistent with the dignity of the tribunal and constitute such reparation as you would expect and desire a French consul in the United States to ask and an American court to cheerfully accord? Having been for many years the president-judge of a court of superior jurisdiction and being still a professor of law in one of our great universities, I think I am not assuming too much in saying that such action on the part of an American tribunal might be considered as a matter of course.

Hoping that you may find your sense of duty to accord with my suggestions and that I may receive at an early day duly certified copies of such reparative action, I beg you, Monsieur le Vice-President, to accept, etc.,

Albion W. Tourgée.

memorandum.

It should be remembered that only two things were asked of the vice-president:

1. That he state that he issued the writ inadvertently and did not claim that the same was in accordance with the treaty.

2. That the tribunal certify under its seal the abrogation of said writ.

The first of these he could easily have done had he been so disposed. His letter can only be considered as a reassertion of his offensive act.

A. W. T.

1. Not printed.