811.111 Zizianoff, Nina Princess
The Consul General at Paris (
Gaulin
) to the Secretary of
State
[Extract]
Paris
,
March 26,
1927
.
[Received April 9.]
No. 21
Sir: I have the honor to transmit herewith for
the Department’s information a draft of conclusions submitted to the
President of the 12th Chambre Correctionnelle de la Seine62 at the close of the hearing of
Mr. Bigelow’s plea for immunity under the Convention of February 23,
1853,63 which took place on March 22, 1927. This draft indicates
the grounds on which Mr. Bigelow’s claim to immunity from jurisdiction
is based. I am also transmitting a copy of a statement, signed by Mr.
Bigelow,62 and
submitted to the Tribunal on the day following the hearing, protesting
against the failure of the Substitut du Procureur (or Public Prosecutor)
to take into consideration the Embassy’s notes of March 5, 1927 and
March 14, 1927, copies of which are enclosed, or to consider the
most-favored-nation clause in the treaty.
. . . . . . . . . . . . . .
I have [etc.]
[Enclosure 1]
The American Ambassador (
Herrick
) to the French Minister for Foreign Affairs
(
Briand
)
Excellency: I have the honor to call Your
Excellency’s attention to an instruction which I have just received
from the Department of State64 regarding the
decision of the Cour de Cassation, referred to in the notes of M. de
Navailles to Mr. Hallett Johnson of November 12th and 14th last, and
reading in part as follows:
“It is important to observe, with reference to the statement
in the decision of the Cour of Cassation, mentioned above,
that this Government did not agree to the contention in the
note of June 19, 1909, from the Foreign Office to Ambassador
White,62
that the ‘personal immunity’ provided for in Article II of
the Treaty, relates only to [Page 851] ‘exemption from arrest and preliminary
detention’. The Department considers that the phrase in
question was intended to insure to American Consuls in
France and French Consuls in the United States immunity from
arrest or imprisonment in all cases, except cases in which
Consuls are accused of crimes proper. In other words, the
Department considers that this provision was intended to
insure immunity from arrest or imprisonment under the
judgment of a court as well as preventive arrest or
imprisonment.”
It is pertinent to add that the note of June 19, 1909, has not
received from the Government of the United States an adhesion
without reserves and that it was, moreover, limited to cases such as
that of Mr. King, the circumstances of which are not comparable to
that of Mr. Bigelow. Furthermore, the exchange of views in 1909
cannot be considered as a positive interpretation of the Convention
of February 23, 1853, given in the form of an additional protocol or
as a declaration duly signed and dated and constituting an
instrument thereafter inseparable from the Convention of 1853.
The Government of the United States cannot, therefore, consider as
conforming to its views the affirmation by the Cour de Cassation
that the Convention of 1853 has been the object of a bilateral
interpretation by the interested Governments. No modifications
having been made in the text of the Convention of 1853, the
Government of the United States feels that it can reasonably contend
that a Consul of American nationality cannot in any case be arrested
or imprisoned except for crime.
With reference to this case, I am authorized by my Government to call
Your Excellency’s special attention to the provision of Article XII
of the Treaty of 1853, that Consular officers “shall enjoy in the
two countries all the other privileges, exemptions and immunities
which may at any future time be granted to the agents of the same
rank of the most favored nation,” and to inquire whether, in
accordance with this provision, the French Government may not see
fit to have the suits against Mr. Bigelow withdrawn, especially in
view of the decision of the Court at Dieppe on January 22, 1900, in
the suit against Lee Jortin, British Vice-Consul at Dieppe, in which
the Court held that it had no jurisdiction, and the decision of the
Court of Appeals at Rouen of May 11, 1900, confirming the decision
of the lower Court (Clunet 1900, 130, 858); also the decision of the
Police Court of the Seine of July 8, 1890, holding that it had no
jurisdiction of the suit against Manolopoulo, Chancellor of the
Greek Consulate General at Paris (Clunet 1890, 667).
I have [etc.]
[Page 852]
[Enclosure 2]
The American Embassy
to the French Ministry for Foreign
Affairs
The American Embassy presents its compliments to the Ministry of
Foreign Affairs and has the honor to refer to the citation, dated
October 19, 1926, regarding the suit of Princess Zizianoff (née
Johanna Kriebel) against Mr. Donald F. Bigelow, Consul in charge of
the Passport Department of the American Consulate General at Paris,
and to inform the Ministry that the Department of State in cables to
the Embassy stated that it considers any effort to hold Mr. Bigelow
responsible for his action in refusing the visa to the plaintiff or
to have such act reviewed by a French court to be improper.
The notice of the decision to refuse the visa applied for was, by
direction, communicated to Princess Zizianoff on December 16, 1925,
in a letter worded as follows:
“Madam:
I am directed to inform you that the Consulate General is
unable to give favorable consideration to the application
which you executed at the Passport Department of the
Consulate General on December 12, 1925, for a visa charging
you to the immigration quota for France. The Consulate
General has completed its investigation of your case and has
reason to believe that you are not admissible to the United
States under the laws relating to the entry of aliens.
Very respectfully yours,
Donald F. Bigelow
American Consul”
The decision to refuse the visa was approved by Mr. Skinner, then
Consul General at Paris and at present American Minister to Greece,
by a written instruction to Mr. Bigelow, dated as early as August
27, 1925. The refusal has since been maintained by Mr. Orr, Mr.
Skinner’s successor in charge of the Consulate General and by the
Department of State which is fully informed of the reasons for the
denial of the visa applied for by Princess Zizianoff.
This communication is being addressed to the Ministry of Foreign
Affairs with the request that its contents be transmitted to the
President of the 12th Chambre Correctionnelle du Parquet de la
Seine, the tribunal before which the suit of Princess Zizianoff has
been referred for a hearing on March 22, 1927.
Assuming that the Ministry for Foreign Affairs agrees with the
Department of State in its statement referred to in the first
paragraph of this note, the Embassy also has the honor to request
that the Ministry will be so good as to inform the President of the
12th Chambre Correctionnelle that any effort to hold Mr. Bigelow
responsible for his action in refusing a visa to the plaintiff or
have such act reviewed by a French Court is improper.
