other powers have been and are resident, can so convert that city into a military fortress as to apply to it the rules of war applicable to fortresses as distinguished from other towns. Or whether such approach and military demonstrations of a hostile force impose upon the diplomatic representatives of other and neutral states the alternative of abandoning their posts and their duties, or of privation of the right of free and uninterrupted correspondence with their Government, which public law, no less than international comity, accords in the interest of peace. I inclose herewith copies of a correspondence between Mr. Washburne and Count Bismarck on the subject of the transmission of Mr. Washburne's dispatches. You will observe that in this correspondence Count Bismarck, under date of January 15, admits that the delay to which the transmission of the correspondence of this Government with its minister in Paris was subjected depended upon the principle adopted by the general staff of the German army, allowing no sealed packages or letters to pass through their lines in either direction without a stoppage of several days, and he cautiously disclaims one. act of immediate transmission being taken as a precedent. The President desires to make all, proper allowance for the military exigencies which are represented to have led to the withholding and detaining of the official correspondence of the minister, and is gratified to receive. the recognition in Count Bismarck's letter of 28th of January to Mr. Washburne of the right of correspondence contended for in my note to Baron Gerolt of 21st November last, and his assurance that the delay to which it was subjected proceeded from causes which he could not remove. "Recent events, it is confidently hoped, have removed the probability of any recurrence of the interruption of free correspondence. And Count Bismarck's assurance to Mr. Washburne that 'the delay occur ring now and then in the transmission of your dispatch-bag is not occa sioned by any doubt as to the right of your Government to correspond with you, but by obstacles it was out of my power to remove,' confirms this Government in its confidence of an entire agreement between it and North Germany on the question of the right and the inviolability of correspondence between a Government and its representative, and of the absence of any intentional interference with that right in the case of its minister to Paris. I send, herewith, a copy of a dispatch of this date to Mr. Washburne. "As Count Bismarck's recognition of the right for which I contended in my note to Baron Gerolt is subsequent to his letter to you of 15th January, and admits what I felt it my duty to claim, there does not appear to be any necessity for continuing the discussion, unless the subject be again referred to by the German minister, in which case you are authorized to read to him this dispatch." Mr. Fish, Sec. of State, to Mr. Baucroft, Feb. 24, 1871. MSS. Inst., Germ.; For. "Your letters to Count Bismarck on the subject of the dispatch-bag, and its conveyance to and from Paris, meets the entire approval of the Department. It is dignified, forcible, and just. "It was not unnatural that the powers besieging Paris during their long and terrible efforts should have had their susceptibilities aroused at times, by the various rumors and statements (originated and put in circulation possibly for the very purpose of operating upon those susceptibilities) of information prejudicial to their military operations being conveyed into and from the beleaguered capital. "But it would be very much to be regretted, and would have been very unjust, had even a momentary suspicion found its lodgment in minds capable of achieving the results that have attended the civil and military operations of Germany toward the representative of a friendly state, and that representative being the one who, at the request of Germany, and with the consent of his own Government, had charged himself with the arduous and critical duty of the care and protection of the German residents shut in with the millions of Frenchmen in the capital which Germany was endeavoring to reduce by siege, starvation, and bombardment. "The President observes, however, with satisfaction the very just disclaimer of any suspicion of the good faith of our conduct, in the letter of the chancellor of the North German Union to you, under date of 28th January last. "The question of the right of uninterrupted correspondence between a neutral power and its representative, duly accredited and resident in the capital of a belligerent, which, while he is thus resident, becomes the object of attack and siege by another belligerent, is now, happily, no longer one of immediate practical application. "It is satisfactory to notice that, although Count Bismarck, in his note addressed to you on 6th December last, speaks of 'obtaining for the legation of the United States the privilege of receiving closed dispatches,' in his note of January 28, from Versailles, he recognizes the principle asserted by me in a note addressed to Baron Gerolt on 21st November last (of which a copy was sent to you with my No. 206 of 22d November), and admits of no doubt as to the right of your Government to correspond with you.' "The delays and interruptions to that right are, I trust, wholly of the past, and may have been, and it is hoped were, the unavoidable accidents of the then pending military strife. In the absence of any recurrence, we are content with the recognition so fully made by Count Bismarck of the right which we claimed." Mr. Fish, Sec. of State, to Mr. Washburne, Feb. 24, 1871. MSS. Inst., France. "Couriers and bearers of dispatches, employed by a diplomatic agent in the service of his Government, are privileged persons, as far as is necessary for their particular service, whether in the state to which the agent is accredited, or in the territories of a third state with which the Government they serve is at peace. "It is expected that communications to the Department will be sent by mail; or, if by private hand, that no promise be made to the person so employed of compensation, or of a reimbursement of his expenses, without the previous authority of the Department, and that no ground of expectation of compensation or of reimbursement of expenses be given. It may happen that responsible private individuals offer their service, without expectation of compensation, for the conveyance of official communications to the Department, or from one legation to another. Such courteous offers may sometimes be accepted if deemed advisable. "It is not intended to prevent diplomatic agents abroad from employing couriers at the public expense when the mails are obstructed, or deemed unsafe, and when there may be occasion to address the Department on subjects materially affecting interests of the United States which might suffer from delay or reasonably apprehended interrup tion in the transmission of the dispatch. The exercise of the utmost discretion is, however, enjoined in judging of these exigencies. Whenever the minister shall determine to send a courier, he will inform this Department of the fact, assigning the reasons therefor, and stating the compensation he recommends to be allowed him. The Secretary of State nevertheless reserves to himself the right in all cases to judge of the necessity for the employment of a messenger, and of the propriety of paying the whole or any part of the compensation which may have been recommended. This should be fully explained by the minister to the messenger before intrusting him with the dispatches. "When a bearer of dispatches is employed as above, a special passport may be given to him by the diplomatic agent, setting forth his name and the duty he is to perform. Such a passport is to be furnished without charge, and is only good for the journey for which it is issued." Printed Pers. Inst. Dip. Agents, 1885. XXII. PRIVILEGED FROM TESTIFYING. § 98. Whether an attaché of a foreign mission can be required to attend a local court of justice as a witness is a question at the outset for such court to determine. Mr. Van Buren, Sec. of State, to Mr. Billé, Oct. 23, 1830. MSS. Notes, For. Leg. In 1854 Mr. Dillon, then consul of France at San Francisco, was brought into the United States district court, then sitting, on an attachment for refusing to obey a subpœna duces tecum issued from that court to compel his attendance at a criminal trial then and there pending. Mr. Dillon protested against the process on two grounds: (1) Immunity from such process by international law; (2) immunity under the FrenchAmerican treaty. The second point was merged in argument in the first, since it was agreed by counsel that the treaty privilege could not stand in the way of a party's constitutional right to meet the witness against him face to face, unless that privilege was in accordance with public international law. On this question the court (Hoffman, J.) spoke as follows: "If the accused, by virtue of the constitutional provision in this case, can compel the attendance of the consul of France, it seems necessarily to follow the attendance of an ambassador could in like manner be enforced. "The immunity afforded to and personal inviolability of ambassadors, now universally recognized by the law of nations, has been deemed one of the most striking instances of the advance of civilization and the progress of enlightened and liberal ideas. Though resident in a foreign country to which they are deputed (1 Kent's Com., 45), their persons have, by the consent of all nations, been deemed inviolable; nor can they, says the same high authority, be made amenable to the civil or criminal jurisdiction of the country. By fiction of law the ambassador is considered as if he were out of the territory of the foreign power, and, though he resides within the foreign state, he is considered a member of his own country, retaining his original domicile, and the Government he represents has exclusive cognizance of his conduct and control over his person (1 Kent's Com., 46). Does, then, the Constitution of the United States, by the provision in favor of persons accused of crime, intend to subject these high functionaries to the process of the courts, and does it authorize and require the courts in case of disobedience to violate their persons and disregard immunities universally conceded to them by the law of nations, by imprisoning them? If, as is the received doctrine, the ambassador cannot, even in the case of a high crime committed by himself, be proceeded against, it is obvious that for a lesser offense of a contempt or disobedience to an order of a court, he would a fortiori not be amenable to the law. The only ground upon which the right of a court to compel the attendance of an embassador by its process, and to punish him if he disobey it, can be placed, is that the Constitution is in this case in conflict with and paramount to the law of nations, and the immunity usually conceded to ambassadors is, by the provision in favor of the accused in criminal cases, taken away. "But the privilege of ambassadors from arrest, under any circumstances, has been declared by Congress by special legislation. By the twenty-fifth section of the act of Congress of April 30, 1790, it is enacted that if any writ or process sue out of any courts of the United States, or of a particular State, or by any judge or justice therein respectively, whereby the person of an ambassador may be arrested or imprisoned, or his goods distrained, seized, or attached, such writ and process shall be deemed and adjudged to be utterly null and void to all intents, construction, and purposes whatever."" When the attachment was served on Mr. Dillon, he hauled down his consular flag; and the case was taken up by the French minister at Washington, as involving a gross disrespect to France. A long and animated controversy between Mr. Marcy, then Secretary of State, and the French Government ensued. The fact that an attachment had issued under which Mr. Dillon was brought into court was regarded by the French Government as not merely a contravention of the treaty, but an offense by international law; and it was argued that the disrespect was not purged by the subsequent discharge of Mr. Dillon from arrest. It was urged, also, that the fact that the subpoena contained the clause duces tecum involved a violation of the consular archives. Mr. Marcy, in a letter of September 11, 1854, to Mr. Mason, then minister at Paris, discusses these questions at great length. He maintains that the provision in the Federal Constitution giving defendants opportunity to meet witnesses produced against them face to face, overrides conflicting treaties, unless in cases where such treaties embody exceptions to this right recognized as such when the Constitution was framed. One of these exceptions relates to the case of diplomatic representatives. "As the law of evidence stood when the Constitution went into effect," says Mr. Marcy, "ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give the defendant the right in criminal prosecutions to compel their attendance in court." This privilege, however, Mr. Marcy maintained, did not extend to consuls, and consuls, therefore, could only procure the privilege when given to them by treaty which, in criminal cases, was subject to the limitations of the Constitution of the United States. Mr. Marcy, however, finding that the French Government continued to regard the attachment, with the subpoena duces tecum, as an attack on its honor, offered, in a letter to Mr. Mason, dated January 18, 1855, to compromise the matter by a salute to the French flag upon a French man-of-war, stopping at San Francisco. Count de Sartiges, the French minister at Washington, asked in addition that when the consular flag at San Francisco was rehoisted, it should receive a salute. This was declined by Mr. Marcy. In August, 1855, after a long and protracted controversy, the French Government agreed to accept as a sufficient satisfaction an expression of regret by the Government of the United States, coupled with the provision that "when a French national ship or squadron shall appear in the harbor of San Francisco the United States authorities there, military or naval, will salute the national flag borne by such ship or squadron with a national salute, at an hour to be specified and agreed on with the French naval commanding officer present, and the French ship or squadron whose flag is thus saluted will return the salute gun for gun." In re Dillon, 2 Sawyer, 564, 565. As to saluting flag, sce infra, § 315. "The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the consul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restric tion on this constitutional provision. There was, however, at the time of its adoption, some limit to the range of its operation. It did not give to such a defendant the right to have compulsory process against all persons whatever, but only against such as were subject to subpoena at that time, such as might by existing law be witnesses. There were then persons and classes of persons who were not thus subject to that process, who, by privileges and mental disqualifications, could not be made witnesses, and this constitutional provision did not confer the right on the defendant to have compulsory process against them. As the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give to the defendant in criminal prosecutions the right to com |