File No. 22205.

The Secretary of State to Ambassador Leishman.

No. 58.]

Sir: For your information, in case the Italian foreign office should be misled as to the actual attitude of the State of Colorado and the Federal Government in the libel suit brought by Mr. Pasqualle Corte against Mr. Adolphe Rossi, Italian consul general at Denver, the [Page 675] department transmits herewith copy of a memorandum which has been prepared by the solicitor, stating the facts as they appear from the department’s records.

I am, etc.,

(For
Mr. Knox
.)
Alvey A. Adee.

[Inclosure.

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.