File No. 702.6211/215.
The Secretary of State to the Governor of Washington .
Washington , April 5, 1915 .
The German Ambassador has brought to the Department’s attention information received by him regarding the arrest of the German Consul at Seattle and the Secretary of the Consulate on a charge of conspiracy, as defined by a statute of your State. The Ambassador represents that the action of the authorities appears in contravention of articles 3 and 5 of the consular convention concluded December 11, 1871, between the United States and the German Empire, and calls attention to section 256 of the judiciary act approved March 3, 1911, which vests jurisdiction in the courts of the United States, exclusive of the courts of the several States, in all suits and proceedings against consuls and vice consuls.
It appears to the Department, from the information in its possession somewhat doubtful that the action of the local authorities has been at variance with the treaty provisions to which the Ambassador refers. Article 3 of the treaty confers on consular officers personal immunity from arrest “except in the case of crimes”. Article 5 stipulates that consular archives shall be inviolable and that offices and dwellings of consuls shall also be inviolable and shall not be invaded by the local authorities except in the case of pursuit for crimes. It seems possible, however, that in instituting the proceedings in question the local authorities in Seattle may not have given consideration to the provisions of the judiciary act to which the Ambassador refers.
In this relation I may invite your attention to a communication received by the Department from the Attorney General of the United States under date of February 24, 1914, in relation to a case wherein a prosecution for a statutory crime was instituted against a foreign consul in California. The case was dismissed by the court on a question of jurisdiction. In this communication the Attorney General said:
From a careful investigation of the authorities it would seem that there is no way to reach the Consul by criminal proceedings. It is settled that the [Page 406] State courts have no jurisdiction, and apparently the United States courts would have none, since the offense referred to is not made a crime by any law of the United States. It is true that in the case of In re Iasigi, 79 Fed., 751, 753, there is a dictum of Judge Brown to the effect that the Federal courts would have exclusive jurisdiction of offenses by consuls, whether at common law or under State or United States statutes. There does not appear to be, however, any authority upholding this view, and a manuscript opinion of the Attorney General to the contrary in the Kosloff case is referred to in Moore’s Digest, Vol. 5, p. 66. On the whole I am of the opinion, that there is no jurisdiction in the Federal, courts to proceed against a consul except where he has offended against some specific criminal law of the United States.
I would be glad if you would promptly bring my telegram to the attention of the appropriate authorities in Seattle. You will appreciate that, irrespective of what the facts may be in relation to the alleged commission of the crime with which the Consul is charged, it is desirable that the local authorities should avoid action which might give just grounds for complaint that proceedings were taken against the Consul which were not warranted under the law of this country.
I would also appreciate receiving from you at your early convenience full information regarding the nature of the charges against the Consul, the evidence on which these charges are based and the character of the proceedings instituted against the Consul.