I am now in receipt of a reply, dated July 20th, in which the Foreign
Office states that, while divergencies of views have appeared in the
notes exchanged between this Embassy and the Ministry for Foreign
Affairs concerning the scope of the expression “personal immunity”, it
has been recognized on both sides that the meaning of “immunity
[Page 854]
from the jurisdiction of the
courts” had never been given to this formula. The Foreign Office adds
that the statements made to the press by Mr. Bigelow are personal acts
and cannot under any heading be considered as official acts.
A copy and translation of the aforementioned note are to-day being
transmitted to Mr. Bigelow’s lawyer for his information.
[Enclosure—Translation]
The French Ministry for
Foreign Affairs to the American
Embassy
I.D. 26
In reply to a note of the 5th instant of this month, relative to the
suit of Princess Zizianoff against Mr. Bigelow, the Ministry for
Foreign Affairs has the honor to inform the Embassy of the United
States that it did not fail to call the attention of the Attorney
General near the Paris Court of Appeals to Article 12 of the
Franco-American Consular Convention of February 23, 1853, which
permits consuls of the United States of America to invoke the
benefit of the privileges, exemptions and immunities granted to
consuls of the most-favored nation. The provisions of the
Franco-Hellenic Consular Convention of January 7, 187667 were also pointed out to this
high official.
As regards sentences and decisions of the Courts of Appeal and
tribunals, it is for the conflicting parties to invoke them before
the court charged with the case and to draw therefrom such
conclusions as they deem advisable.
The Embassy mentioned the decision of the Correctional Court of
Dieppe of March 19, 1900 and the sentence of the Court of Rouen of
May 11th of the same year in the case of Murphy versus Lee Jortin. The
Ministry begs the Embassy to note that there exists no consular
convention between France and Great Britain and that the courts in
question consequently based their decisions on the general
principles of international law. It should be pointed out,
furthermore, that, contrary to what the Embassy thinks, the
aforementioned sentence and decision explicitly affirmed the
competency of the French courts.
As to the suit of Snacos versus Manolopoulo, the Ministry for Foreign Affairs
believes that the decision of July 8, 1890 of the Correctional Court
of the Seine wrongly interpreted Article 8 of the Franco-Hellenic
Consular Convention of January 7, 1876.
This article reads as follows:
“Consuls General, Consuls, Student Consuls, Chancellors and
Vice Consuls or Consular Agents, citizens of the State which
nominates
[Page 855]
them,
shall enjoy personal immunity: They cannot be arrested or
imprisoned, except for deeds and acts which the penal code
of the country of their residence qualifies as crimes and
punishes as such. If they are merchants, imprisonment for
debt can only apply in their case on account of business
dealings.”
In the opinion of the French Government, the words “shall enjoy
personal immunity; they cannot be either arrested or imprisoned” can
only apply to preventive arrest and imprisonment. Admitting that
this interpretation may be contested, it none the less remains true
that the said Article 8, if it exempts consuls from arrest and
imprisonment, in no case exempts them from local jurisdiction.
In the notes exchanged between the United States Embassy and the
Ministry for Foreign Affairs concerning the King and Bigelow cases,
divergencies of views have appeared as regards the scope of the
expression “personal immunity”, but it has been recognized on both
sides, in the clearest manner, that, neither in America nor in
France, the meaning of immunity from the jurisdiction of the courts
had never been and is not given to this formula. It is stated, in
the note which the Embassy addressed to the Ministry on June 12,
1909:
“It is settled law of the United States that Consular
Officers are not entitled under international law to
exemption from the jurisdiction of local courts. This rule
is obviously necessary where consuls engage in private
business. The Department of State interprets the Consular
Treaty with France as not derogating from this doctrine; and
holds that the Treaty gives a consul immunity from suit only
as to his official acts and capacity, but not as to
transactions connected with his private business
undertakings.”
Now, the declarations made to the press by Mr. Bigelow, declarations
which motivated Princess Zizianoff’s suit, are personal acts and
cannot, under any heading, be considered as official acts.
