811.111 Zizianoff, Nina Princess
The Acting Secretary of State to the Ambassador in France ( Edge )
Sir: The Department has received your despatch No. 670 of June 28, 1930,62 in regard to the suit brought by Princess Nina Zizianoff against Consul Donald F. Bigelow.
You are authorized to send to the French Foreign Office a note reading as follows:
“Referring to previous correspondence concerning the case of Princess Nina Zizianoff nee Johanna Kriebel against Mr. Donald F. Bigelow, formerly American Consul at Paris, I have the honor to inform you that the Department of State is disturbed by the situation in which Mr. Bigelow now finds himself by reason of this suit.
“In its former communications, the Department of State declared that the proceedings against Mr. Bigelow, in its opinion, appeared to concern an act performed in the discharge of his official duties and not coming within the competency of the French courts, by virtue of the Treaty of 1853 between France and the United States.64 Special attention is called to the notes of March 14,65 July 5,66 December 15, [Page 73] 1927,67 and April 20, 192868 to the Foreign Office. In the two latter notes, my Government pointed out that it did not accept the view of the French Government with regard to the meaning of Article II of the Convention of 1853, and that, on the other hand, it considered that the act with which Mr. Bigelow was charged had been accomplished in the exercise of his official functions. In particular in the note of April 20, 1928 it was said:
‘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 my Government maintains that an error of this nature, being directly connected with the performance of an official act, should not subject the consul to prosecution.’
“The French courts declared themselves competent, stating that it was not an act performed in the discharge of official duties,—which is contrary to the opinion of my Government,—and, refusing to interpret tor themselves the Convention of 1853, declared that the interpretation of it was within the jurisdiction of the French Ministry for Foreign Affairs, which, from the beginning had taken the position that Mr. Bigelow’s action could not be regarded as official.
“The Court of Cassation having, on December 15, 1928, rendered the decision mentioned above, the case again came before the courts. Mr. Bigelow then raised the question of nullity of procedure, which was not without value since it was accepted by the Correctional Court of the Seine in its judgment of March 26, 1929. Princess Zizianoff having taken an appeal, the case came before the Paris Court which, by decision of July 31, 1929, declared valid and conformable to rule the procedure which the Correctional Court had declared null.
“The present note relates to the circumstances in which Consul Bigelow will find himself before the French correctional courts.
“Since the decision of the court of July 31, 1929, Mr. Bigelow’s situation is the following: If he does not appear in person before the Paris Court of Appeals,—the sole court competent in the premises to judge him,—he runs the risk of being condemned without having been heard. Maître Rosenmark, Mr. Bigelow’s lawyer, has informed Mr. Bigelow that French criminal procedure does not allow pleading for an accused person who is not personally present at the hearing, whatever may be the reason for his absence. Therefore, Consul Bigelow, an official of my Government, who is at present in the United States but has been instructed to proceed shortly to a foreign country as a Consul of the United States, finds himself in a dilemma, since, if he is not to run the risk of being condemned, even to imprisonment, without having been defended, he must resign from his official duties or be ready to interrupt them for a long time in order to appear before the Paris Court.
“According to the information furnished the Embassy, the case has been postponed several times for reasons relating to the fact that Mr. Bigelow is sued as an accomplice and it is necessary or [Page 74] proper to try him at the same time as the authors of the alleged defamation. Furthermore, even though the case may seem to be ready for decision, the possibility of further postponements cannot be ignored.
“It is believed that the Government of the United States was not wrong in maintaining that it is improper to sue a consul for an act so closely connected with his duties, and that such a suit would be contrary to the intent of the Convention of 1853. It is believed that the negotiators of that treaty had in view avoiding so far as possible any procedure which might hinder an American or French Consular officer in the exercise of his duties. It appears to my Government unreasonable to insist on the appearance of officials in person before the Correctional Courts on account of acts which were performed while they were officially accredited to the French Government, and which had a direct relationship to their official duties. This does not ensure impunity to consuls to the detriment of citizens of the countries to which they are sent. It may be assumed that, if a consul were prosecuted for a crime of a serious character, his Government would not maintain him in office, at least if he appeared to be guilty.
“If my Government had considered that Mr. Bigelow had, as consul in Paris, committed a crime of a serious character, it would not have retained him as a representative of the United States in France, nor have kept him in the consular service. Such seems, moreover, to have been the opinion of the French Government, Mr. Bigelow having continued his duties in France for a year after he was summoned to appear before the correctional court, without objection from the French Government.
“The above observations indicate the inconveniences which would be likely to arise because of the interpretation given by the French Government to the Convention of 1853. As to Mr. Bigelow’s position, my Government can not regard with equanimity the interruption of the duties with which this official is charged each time his case may be tried.
“Mr. Bigelow has sent a memorandum to the Paris Court outlining his defense, but even if the Court is willing to take into consideration the memorandum of an accused person whom it is proposed to declare in default, he will find himself placed in a position of inferiority prejudicial to the rights of an accused person. Not only will he not have the last word, but, not being present nor represented at the argument, he will be deprived of the right of submitting an oral defense before a decision is reached. He will be compelled and forced to submit to this situation owing to his official duties in his country notwithstanding the matter arose in the performance of his official functions in France. The situation in which Mr. Bigelow is placed is anomalous, since, as a result of the decision of the Correctional Court of December 24, 1929, the journalist to whom Mr. Bigelow is accused of having granted an interview was acquitted of the charge of being the author of the incriminating article, and it is believed that this decision was due to the oral discussion instituted by the interested party at the hearing.
“For the reasons mentioned, my Government hopes that the French Government will find a means of causing Mr. Bigelow’s right of defense to be respected and of preventing an injustice from being [Page 75] committed against him. In any case, it expresses the desire that all measures be taken by the competent French authorities in order that Mr. Bigelow’s arguments may be examined and given due consideration.”
You will please inform the Consul General of the action to be taken in this matter.
Very truly yours,
[The action brought by Princess Zizianoff against Consul Bigelow was dismissed by decision of the Paris Court of Appeal on March 13, 1933, and this favorable decision was upheld by the Court of Cassation on March 9, 1935. The Consul General at Paris (Keena) in despatch No. 04347, March 22, 1935, stated: “In view of this decision of the Cour de Cassation, Consul Bigelow cannot be the subject of further legal process on the part of Princess Zizianoff in this matter.”]
- Not printed.↩
- Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. 6, p. 169.↩
- Foreign Relations, 1928, vol. ii, p. 852.↩
- See telegram No. 198, June 30, 1927, 3 p.m., to the Ambassador in France, ibid., p. 853.↩
- See instruction No. 2526, December 1, 1927, to the Chargé in France, ibid., p. 855.↩
- See instruction No. 2723, April 10, 1928, to the Ambassador in France, ibid., p. 860.↩