811.111 Zizianoff, Nina Princess
The Secretary of State to the Ambassador in France (Herrick)
Sir: With reference to your despatch No. 8215 of January 13, 1928, and previous correspondence concerning the suit of Nina Zizianoff against Consul Donald F. Bigelow, and the note of January 11, from the French Foreign Office, a copy and translation of which accompany the same, the Department desires that you send to the Foreign Minister a note containing the following expression of its views:
“The Department of State has read with great interest the text of the decision of the Cour d’Appel de Paris on January 28, 1928 in the case involving Consul Bigelow.
“Having observed that the decision rejecting Mr. Bigelow’s claim to immunity is based on the decision of the Cour de Cassation of February 23, 1912 in the case of King, one-time consular agent of the United States at Lille, and on a letter, referring to the King case, addressed by the Ministry of Foreign Affairs to Mr. Thomas Olivera, the Department of State desires to point out that the case of King, who was engaged in business in Lille and charged with the commission of fraud in the course of such business, can in nowise be held comparable with that of Bigelow, a consul of career who in the course of his official employment gave a newspaper reporter reasons which had actuated him in refusing a visa to the plaintiff in this case.
“It is clear that Mr. Bigelow was not actuated by any personal malice towards Princess Zizianoff. The interview in question was given on the consular premises, and, according to his conception of his consular duties at that time, was not improper. He may be reproached for having committed an error in the performance of his official duties, but the Department of State maintains that an error of this nature, being directly connected with the performance of an official act, should not subject the consul to prosecution.
“Further reference is made to the Embassy’s note of March 5, 1927, and in this connection the Ministry is informed that the absence of any reference to most-favored-nation treatment in Ambassador [Page 861] White’s memorandum of June 19, 1909 upon which the decision of the Cour de Cassation of February 23, 1912, in the King case, seems to have been based, cannot be interpreted as limiting this Government’s right to claim the full effect for its consuls of the most-favored-nation clause in the Convention of 1853.
“The Department desires also to remark that it has never accepted the view of the Ministry that the term ‘personal immunity’ as used in Article II of the Convention is understood only as insuring exemption from preventive arrest and imprisonment. That there may be no misunderstanding in the future, it seems desirable to record this expression of views at what appears to be an opportune occasion.”
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