File No. 22205.
[Inclosure.
Department of State,
Washington, January 27,
1910.
In re case of Pasqualle Corte v. Adolphe Rossi.—Under date of November 4,
1909, the Italian Embassy called the department’s attention to an
alleged violation of article 6 of the consular convention of 1878,
by reason of the service upon Consul General Rossi within the
Italian consulate general at Denver, Colo., of a summons in an
action for libel instituted against the Italian consul general by
Mr. Pasqualle Corte, former consul of Italy at Denver.
On January 5, 1910, the governor of Colorado, with whom the
department communicated, immediately upon receipt of the Italian
ambassador’s complaint, informed the department that the service of
the summons within the consulate general was considered illegal by
the court, but that an alias summons was issued on November 4, and
service had on Mr. Rossi on November 15 while the Consul General was
passing along a public street in the city of Denver, and that the
plaintiff thereafter appeared in the district court of the city and
county of Denver and demanded a default and presented his testimony.
It appears that Mr. Rossi refused to make an appearance in the case,
claiming exemption from suit under the treaty of 1878.
The Italian ambassador in a note to the Secretary of State, dated
January 4, states that a judgment by default for $10,000 has been
entered against Mr. Rossi, “with execution of the judgment on his
person if the penalty is not paid.” To this the Italian Embassy
objected on the ground that it was a violation of Article III,
section 2, of the Constitution of the United States. On January 13
the department, in transmitting to the Italian Embassy a copy of the
communication received by the department from the governor of
Colorado, heretofore referred to, said:
It would seem that the question involved is a judicial one,
over which the State courts have concurrent jurisdiction
with the Federal courts, under the authority of the act of
February 18, 1875. Should the consul general deem himself
deprived of a right or privilege under a law of the United
States or a treaty, he may, under the Revised Statutes,
section 709, have the final judgment or decree of a State
court reexamined, reversed, or affirmed in the Supreme Court
of the United States upon a writ of error.
In view of all the circumstances the department ventures to
suggest that if the consul general wishes at some later
stage of the proceedings to avail himself of the alleged
lack of jurisdiction of the State court in which the action
was begun, he make an appearance by counsel and enter a plea
to the jurisdiction.
On January 16 the Italian ambassador telegraphed the Secretary of
State that Mr. Rossi seemed to be threatened with arrest, and
complained that such action on the part of the State authorities
would be a new violation of treaty rights. However, on the 17th
instant, the secretary to the governor of Colorado, in the absence
of the executive, advised the department that “after investigation
find no foundation of threatened arrest of Italian consul general at
Denver,” which information was immediately communicated to the
Italian Embassy.
Upon full consideration the attitude of the department is that a
consular officer, unless exempt by treaty, is subject to suit in
courts of the United States, and that there is no treaty provision
exempting an Italian consular officer from suit in an; appropriate
case; that, although the Supreme Court of the United States has
original, it does not possess exclusive jurisdiction, and that the
district and circuit courts of the United States are competent to
entertain and decide causes of action against consuls; and that
since 1875 State as well as Federal courts may take and exercise
jurisdiction in consular cases.
As the question involved in the litigation between Mr. Corte and the
Italian consul general at Denver is judicial in its nature, and,
finally, as the Italian consul general can preserve his rights by a
plea to the jurisdiction and thus have his case either removed by
the Federal courts or passed upon in ultimate resort by the Supreme
Court of the United States, the United States Government is
precluded from intervening in the proceedings, as requested by the
Italian Embassy.
