ment ofiany'kind, until'somethingiurthersbould be'done. The act of the Englishlllenin getting the tickehratLiverpool, and coming to Philacontract or agreement, such as delphia, was' riecessary to complete it was. In other words, when the defendant prepaid the Englishmen's passage, arid thus assisted 'arid encouraged them to come. to the United States, there was no contract for labot which had been previously made by them; and so the case is not within the statute. Thepbint has been ruled the same way inother circuits. U. S. v. Oraig, 28 Fed. Rep. 795; U. S. v. Borneman, 41 Fed. Rep. 751. The judgment of the circuit court is affirmed. ' Affirmed.
UNITED STATES "'. TRUMBUItL
(DiBtTict Court, S. D. CaLifornia. . October 28, 1891.)
FOREIGN CONS,ULS-EFFECT OF REVOLUTION-nUTY OF COURTS.
A vice-consul of a foreign nation, who possesses an unrevoked exequatur issued by the president of the United States, must still be recognized by the courts as the accredited representative of his country, entitled to all the privileges appertaining to tllat office,notwithstanding that the government which sent him has been overthrown, and an apparently successful reVolutionary government established in its place. In a prosecution against private individuals for violating the neutrality laws of the United States by fitting out a warlike vessel to aid a rebellion against a foreign power, the vice-consul of that powel':cannot be oompelled by legal process to attend as a witness in behalf of the U,nited States, when it appears that the insurgen t party hall been successful, and the' government e8tablished by it has been recognized by the United States.
SAJ\fE-RIGllTS AND PRIVILEGES-EXEMPTION FROM SUBPtENA AS WITNESS- VIOLATION Oll' NEUTRALITY LAWS. .
At Law. Indictment of Ricardo Trumbull and G. A. Burt for violation of neutrality laws. On motion of Walter D. Catton to be discharged from process of subpcena. W. Cole,U. S. Atty., Alexander Campbell and A. W. Hutton, Special Asst. U. S. Attys. William Oraig, for the Vice-Consul. Ross, J. It is greatly to be regretted that the important question now presented to the court must be disposed of in the haste of a nisi pritUl trial. The question arises in a case in which the government of the United States, by various counts in the indictment, charges, in effect, that on the 9th day of May, 1891, at a certain designated place within this judicial district, Ricardo Trumbull and G. A. Burt attempted to fit out and arm, fitted out and armed, caused to be fitted out and armed, and were knowingly concerned in fitting out and arming, a certain steamship called the "Itata," which was then and there in the possession and under the control of certain citizens of the republic of Chili, known as the . "Congressional Party," and who were then and there, in said republic,
UNI'mD STATES 11. TRUMBULL.
banded together in great numbers in armed rebellion and attempted revolution, a.-:.d. carrying on war against the republic of Chili and the government thereof, with which the United States then, and at the ume of the finding of the indictment, were at peace, with intent that said ship should be employed in the service of the aforesaid Congaessional party, to cruise or commit hostilities against the then established and recognized government of Chili, with which this government then was at peace; contrary to the provisions of section 5283 of the Revised Statutes of the United States. A similar violation of sections 5285 and 5286 of the Revised Statutes is also alleged. Counsel for the United Sw.tes having caused a subprena to be served upon Mr. Walter D. Catton to appear as a witness in the case on the part of the prosecution, he has. appeared in obedience to the subprena. and presented to the court his.euquatur, issued by President Cleveland on the 26th of January, 1888, by which he was recognized by the executive as the duly-appointedviee-consul of Chili at San Francisco, Cal.. and declared "free to exercise and enjoy such functions, powers, and privileges as are allowed to the viclHlonsuls of the most favored nations in the United States." He also presents the consular instructions received from his own government, which, among other things, prohibit consuls, without authorization from the minister of foreign affairs or the respective legations, if there be such, from making public the correspondence which they may hold with the government, or from giving publicity to information or data which they may receive while exercising their chargei and by which they are required to demand the privileges and exemptions which may appertain to them by virtue of treaties or conventions entered into between Chili and the nation where they may be stationed, and, in case there be no treaty, to demand the privileges and exemptions which are generally conceded in the country of their residence to consuls of other natiollsiand, as essential to the exercise of their office, they are required to demand inviolability oftheirarchives and documents, and freedom in their acts in their capacity of consuls. For a violation of their instructions llertain punishments are prescribed. Presenting the credentials and instructions mentioned, Mr. Catton asks to be relieved from further attendance upon the court as a witness. He bases the demand-First, upon the broad ground that his privileges as vice-consul exempt him from compulsory process to attend as a witness in any court of the United States; and, secondly, upon the ground that the circumstances of the present case are such as render it improper to require him to attend as a witness on the part of the prosecution. The counsel for the United States deny that the privileges thus. asserted by Mr. Catton exist; contending, in the first place, that he ceased to be vice-cQnsul of Chili upon "the overthrow of the government by which he was accredited. If the position the coun,sel for the United States in this respect is correct, the question is of course ended. and Mr. Catton occupies the position of an ordinary witnesssubprenaed in cause. Btlt I am unable to take that view of the matter. The court cannot saY· that the person who holds the unrevoked exequatur issued by
the president,'by virtue of which ha is in discharge of of viceconsul of his country, is in fact not such officer. The recognition of representatives of foreign countries is a matter for the' executive department of the government, whose action in the premises is accepted and followed by the judicial department. Whart. Int. Law Dig. p. 552. But, accepting Mr. Catton as the duly authorized and acting viceconsul of the Chilian government, does his position as such, of itself, elltitlehim to exemption from compulsory process to attend as a witness in the courts of the United States? It is very clear that by the law of nations. consuls and vice-consuls stand upon a very different footing from ambassadors and ministers. The latter are not amenable to either the civil or criminal jurisdiction of the country to which they are deputed; not so, however, the former. 1 Whart. Int. Law Dig. pp. 767, 775,776; Wools. Int. Law, p. 162; 1 Kent, Camm. 45, 46. But it is contended that such immunity attaches to the vice-consul of Chili by reason of the treaty concluded between the United States and that countryon the 29th of April, 1832. The first subdivision of article 31 of that treaty provided that it should"Retnainln full force and virtue for the term of twelve years, to be reckoned from the day of exchange of the ratification; and, further, untIl the end of one year after either of the contracting pat'ties shall have given notice to the other of its intention to terminate the same, each of the contracting parties reserving itself the right of giving such notice to the other at the end of said term oUwelve years. And it i. hereby agreed between them that, on the expiration of one year after such notice shall have been received byeither from the other party, this treaty in all the parts relating to commerce and navigation shall altogether cease and determine, and In all those parts which relate to peace and friendship it shall be permanently and perpetually binding on both parties." Pursuant to notice by the Chilian government' under the foregoing article, the treaty, together with the explanatory convention which followed it in 1833, were terminated January 20,1850. Treat. & Convent p. 118. As will be observed, the portions of the treaty so terminated were those relating to commerce and navigation, leaving permanently and perpetually binding on both powers those parts relating to peace and friendship, embracinK, as is contended, article 25 of the treaty, which is as follows: "Both the contracting parties, being desirous of avoiding all inequality in relation to their public communications and official intercourse, have agreed, and do agree, to grant to their envoys, ministers, arid other public agents the flame favors, immunities, and exemptions which those of the most favored nations do or shall enjoy; it being understood that whatever favors, immunities, or priVileges the United States of America or the republic of Chili may find it proper to give to the ministerS a.nd public agents of any other power shall, by the same act, be to those of each of the contracting parties... It being stipulated by the convention between the United States and France, ratified April 1, 1853, that their consuls shall never be compelled to appear in court as witnesseslit is urged that the same privilege attaches to the consuls of Chili by virtue of article 25 of the treaty of 1832 above cited. In the case of In fe Dillon, 7 Sawy. 561, which arose
UNITED STATES tI·. TRtJMBULL.
iii 1864, it was held by the court that, because of the stipulation in the treaty between the United States and France to the effect that their consuls shall never be compelled to appear in court as witnesses, such conslils are not amenable to the compulsory process of the courts requiring theil attendance, notwithstanding the provision of the constitution of the United States securing to the accused in criminal prosecutions the right to· have compulsory process for obtaining witnesses in his favor. The subpama served upon Mr. Dillon also required him to produce a. certain document, said to be in his possession. Having failed to appear, an attachment was issued, and he was brought into court, from which, after a hearing of the matter, he; was discharged. When the attachment was served, 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 ·animatedcontroversy 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 trea:ty, 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 subpama con· tained 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 eft'ect,"'says Mr. Mar0Y', "ambassadors and ministers could not be servedlvith compulsory process to appear as witnesses, and the clause in the constitution referred to did not give the defendant the right.in oriminal prosecutions to compel their attendance in court." This privilege, however, Mr. Marcy maintairied, 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 subpcena 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 Santiges, the French minister at Washington, asked, in addi. tion, 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 F'rench national ship or squadroll shall appear in the harbor of San v.48F.no.1-7
Francisco the ,States authorities, there. military or naval, will salute the natiollal flag h()rnepy such ship or squadron with a national salute, at an hour to besp13ei&ed and agreed on with the French naval commanding officer present, and the F'rench ship or squadron whose flag is thus saluted witi return thesalqte, gun for gun.» Whart. Int. Dig. p.666. ,It will therefore be seen that whUe the court held. in Dillon'a CUae, that the of the Qonstitution securing to the accused in criminal prosl;lcutions the right to have compulsory process for obtaining witnesses in thElirfavor does not authori$ the issuing of such process to such consuls who, by express treaty, arenataqlenable to process of the courts, the state department of thegovetnment contended that that provision overrides conflicting treaties, l1Ot. embodying exceptions to the right guarantied. recognized as such when the constitution was framed, within wbiQhexceptions consuls did, Dot come. In the present case, however, the 'provision oLthe constitutiQnireferred to in Dillon'8 case is not inJ:olved; for Mr. CattonhaSDQt been subpcenaed as a witness for the defendants. but on behalf afthe prosecution. And if;he is entitled, as in el1fectit is declared he is, byartic1e 25 of the convention of 1832, and by.the exequatur issued to him by the president, to the same privileges and ,immunities as are granted to the consuls of France. it would seem to follow that be is exempt from compulsory process to attend the court aaa witness. :: .But for another reason I.do Mt think he should be compelled to attend as a. witness in this cause.,The offenses with whiQh the defendants stand charged .are violations.of the neutrality laws of.the United States, and eonsist in the giving of aid to those who now constitute the establi8hed,and recognized gove1'Jlltlent of Chili. . Having aucceeded and become recognized, the acts.oftbat government from the commencement (lits.eJli8tence will be upheld a8those of at;l independent nation. Will;. 1l1Irnsv.· Bruff.!l/' 96 U. S. 176. To require the representative of that governml'lllt to appear and give against those alleged to have aided its establishment would ·not only be contrary to the principIe upon whioh neutrality laws. are based, butwQuld tend to give grave offense to the government now recognized by the UnitedSta.tes, and with which this government, happily,' iB at peace. The D1otioll. on behalf of the viQ6-consul is. allowed. . "' .
UNITED' STATES 'l1.TRU1fBULL
(Dr.8trtctOO'Urt, S. D.,OaU!ornw. November 8,1891.)
J!tEU'l'BALITY LAws-F,URNJSHING ARKS 'l'O FOREIGN 1NSURGBNT-"FITTING OUT" ,.. ,
Rav. St. U. S. § 52Ba,' prescribing a punishment for any person who is in any way concerned in "furnishing, fitting out, or arming" any vessel with intent that she snall QEl employed in toe !l<llrvice of any foreign state or peoplfl to crUise or commit hostilities against any foreign state or people with whom the United StllteS are at peace,l1oes not cover the act, of purchasing arms anq munitions of wal", and putting them on boaI'd a veflst>l sent to receive them, with intent that they shall be carried to a party of insurgents in a foreign country, to used in carrying on war against tbe government thereof, but which are not designed to constitute any part of flttingsor furnishings of the vessel herself.
SAME-SETTING ON FOOT EXPEDITION-WHAT CONSTITUTES.
When a party of insurgents, already and carrying on war againstthQ government of a foreign country, send a vessel to procure arms and ammunitiQn jn the United· StatAs, the act of such arms and ammunition, and placing them on board the vessel, is not within the llCOpf) of S. § 5286, presoribing a punishment for every person who, within the limits or jurisdiction of the United States', begins or sets on foot, or provides or prepares the means for, any military expedition or enterprise, "to be oarried on from thence. "
At Law. Indictment of Trumbull and Burt for violation of neu· trality laws. " .' ,W. Cole, U. S. Atty., and .Akxa,nder CampbeU and.A. W. Hutton, Special Asst. U. S. Attys. Page &: EeU8, M. White, $ond GerYrge J. Denis, for defendants. Ross, J. The indictment in this case contains 11 counts, the first 4 of which, in effect, charge that on ,the 9th day of May, 1891, at a cer· tain designated place in this judicial district, near the island of San Clemente, the defendants unlawfully attempted to fit out and arm, fitted out and armed, procured to be fitted out and armed, and were know· ingly concerned in furnishing,' fitting out, and arming, a certain steamship called the" Itata," which was then and there in the possession and under the control of certain citizens of the republic of Chili, known as the "Congressional Party," an.d who were then and there, in said repub. lic, organized and banded together in great num bers in armed rebellion and attempted revolution, and carrying on war against the republic of Chili, and the government thereof, with which the United States then and at the time of the finding of the indictment were at peace, with intent that said ship should be employed in the service of the aforesaid Congressional Party, to cruise or commit hostilities against the then established and recognized government of Chili, with which this govemment then was at peace, contrary ta the provisions of section 5283 of the Revised Statutes of the United States, which section is as follows: "Every person who, within the limits of the United States, fits out and arms, or, attempts to fit out and arm, or procures to be fitted out and armed, or knowfngly is concerned in the, furnishing, fitting or arming of, any vessel, with intent that such vessel shall be employed in the service of any foreign llrince or state. or of any colool. district, 'Or people, to cruise or com-