FRANCE. CONSULAR IMMUNITIES-VICLATION OF DWELLING (AT ARCACHON) OF CONSUL AT BORDEAUX BY FRENCH OFFICIALS. No. 656.] Mr. Adee to Mr. Porter. DEPARTMENT OF STATE, SIR: I inclose for your information copy of papers, as indicated below, relative to the violation of the consular dwelling of Mr. Albion W. Tourgée, at Arcachon, in the district of Bordeaux, which, it is understood, has been informally brought to your attention. You will observe that Consul Tourgée represents that last winter, under the advice of his physician, he decided to take hydropathic treatment at Arcachon, which is on the seashore, 30 miles from Bordeaux, but within his consular district. The medicated baths being the most important part of this treatment, it was necessary to secure a house with a bathroom. One was found, and a customary memorandum, which constitutes only a verbal lease, was exchanged in duplicate, and the rent for four months paid in advance. The agent who had charge of the renting was asked if there were any reservations, and replied that there were none except a detached wine cellar in a corner of the ground. Upon moving in, December 1 last, it was found that the door of the bathroom was locked. On being requested to deliver the key the proprietor refused to do so. The French law, Mr. Tourgée says, not permitting an action to compel specific performance on the part of the landlord, there was nothing to be done but to surrender the villa and sue for damages, or dispense with a part of the treatment and refuse to pay the second installment of rent when due. He chose the latter alternative, and so informed the landlord. The landlord, in April last, instituted proceedings to recover this installment of the rent, in the course of which he procured the issuance from the tribunal civil of Bordeaux of a “writ of search and seizure," which authorized the seizure of the furniture and movable goods belonging to Mr. Tourgée in the house occupied by him at Arcachon. Mr. Tourgée refused to permit the writ to be executed, whereupon a bailiff, with the assistance of a commissary of police, forcibly entered the consul's dwelling, the latter protesting and stating that he was consul and his dwelling inviolable. They searched the place, but, as they said, finding his effects of insufficient value to pay the rent and defray expenses, did not seize the same. Mr. Tourgée states that the commissary, while endeavoring to enter the house, said, "I don't concern myself with conventions, consuls, or flags; I have the court's order; that is enough." And that the bailiff, pointing at the American flag hanging over the door, said, "We do not respect that flag." Mr. Tourgée also states that both he and his daughter were forcibly pushed out of the way by the officers who entered the house. As indicating the aggravated character of the violation of the consular dwelling, it is further stated by the consul that, "owing to the fact that my subordinate officer in the consulate is not familiar with the laws and customs of the United States essential to the administration of consular affairs, I have been compelled during my long illness to perform a large part of the work of the consulate at my residence in Arcachon. All the mail is forwarded here without being opened. The consular seal is here in my possession, and all except the mere routine work of the consulate is here performed by me and by clerks under my control. This is not only my personal residence, but the one where my official duties are transacted also." On the same day that the writ was served Mr. Tourgée sent an official protest against the violation of his dwelling to the commissary of police, to which the latter has never replied. He also filed with the prefêt of the department a detailed statement of the facts and a formal protest, and, as he then thought the issuance of the writ a mere inadvertence on the part of the judge who had signed it, suggesting that the judge should certify that it was an oversight to issue such a writ on account of the provisions of the treaty, and that the commissary and bailiff should be reproved for excess of zeal. The prefêt personally acknowledged the receipt of the papers and avowed himself in no respect responsible for the action of the judicial officers. At his instance the consul next addressed the tribunal civil of Bordeaux, stating the facts and protesting that the issuing of such a writ was a judicial violation of the treaty. M. Calvé, the president, in reply, admitted the illegality of the writ, but referred the consul to the vicepresident of the tribunal, who issued the writ, and who alone, he said, could act with propriety upon the question of its disavowal. He added that the complainant's attorney had just placed in his hand a letter from the complainant expressing his willingness to have the writ declared void. (Mr. Tourgée says the fact was that the complainant, being advised that he had no hope of recovery, had filed a retraxit; in other words, consented to a dismissal at his own cost.) In accordance with M. Calvé's suggestion, the consul next addressed himself to M. Lasserre, the vice-president. This magistrate, after ten days, replied, neither admitting nor denying anything, but merely stating that it would be necessary for the consul to make a complaint to the procureur of the Republic for the department with regard to the conduct of the commissary and bailiff. The consul, considering this an effort to shift the responsibility on the mere ministerial agents, replied, stating that he had no personal complaint to make against these officers, but that he contended that the writ was issued in violation of treaty, and he suggested that the act of the judge should be officially disavowed. The consul states that he was approached by a party, who professed to represent the prefêt, with a proposition that if he would waive a written disavowal by the judge and a written reprimand to the officials, the prefêt would arrange that the commissary and bailiff should come in uniform and apologize for what they had done. Mr. Tourgée, however, insisted upon a written disclaimer of the right to issue a writ, as well as a written reprimand to those executing it. Subsequently, on June 15, the consul received a letter from the prefêt, saying that the procureur of the Republic had made an investigation and decided that neither the commissary nor the bailiff, on the occasion of the invasion of the consul's dwelling, had used any word disrespectful to the flag of the United States or had examined the papers deposited in his dwelling. This the consul characterizes as an attempt to avoid the real issue. He accordingly made answer covering the whole matter and stating that he would report the case to his Government. The convention of February 23, 1853, between the United States and France, relative to consular privileges, besides granting to consular officers the privileges usually accorded to their offices, "such as personal immunity except in case of crime," etc., contains the following special provisions: "They may place on the outer door of their offices or of their dwelling houses the arms of their nation and they shall be allowed to hoist the flag of their country thereon. (Art. 2.) "The consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext. In no case shall they examine or seize the papers there deposited." (Art. 3.) A perusal of the "writ of search and seizure" and the "return' made thereon, copies of which are inclosed with the consul's dispatch, plainly shows that there has been a violation of the treaty in this case. Mr. Tourgée's letters of April 11 and June 30, 1899, to the prefêt (inclosures C and I of his dispatch) clearly and forcibly set forth the salient points. The case seems to the Department to be one calling for diplomatic remonstrance. You are accordingly instructed to bring the case to the attention of the French Government and to ask for a compliance with the reasonable request of Mr. Tourgée, that the acts of the judicial authorities in this case be disavowed and the responsible officials properly punished. I am, etc., ALVEY A. ADEE, [Inclosure.] Acting Secretary. Mr. Tourgée to Mr. Hay. UNITED STATES CONSULATE, SIR: I have the honor to report a violation of the treaty of 1853 between the United States and France, which the local authorities for more than two months have neglected to excuse or disavow. Before stating the circumstances I beg to call attention to some of the provisions of this treaty, which seem to be quite exceptional, especially in its provisions regarding the rights and immunities of consuls in the two countries. It differs from all other French treaties, so far as I can learn, in specifically providing for the same immunity for the "dwelling" or "dwelling-house" of the consul as for the consular offices. There seems to be an inclination on the part of the French authorities either to ignore these provisions or to regard the immunities of the American consul as identical with those of other countries. I had heard of difficulties at this and neighboring consulates, resulting from attempts of the local authorities to exercise control over consular dwellings, either by seeking to quarter troops or to exercise the right of search and seizure therein, but I had had no difference with the local authorities whatever, up to this time, beyond some natural divergence of opinion in regard to jurisdiction of the estate of a decedent American citizen. At first, I had no doubt that the matter would be amicably adjusted so that I might report it rather as an unintended accident than a deliberate violation of treaty stipulations. I steadily refused, however, to discuss the matter except in writing, even after the ambassador at Paris, approving my action which I reported to him, directed me to continue my efforts in this direction. This I did, not only to guard against possible misconception, but also because I deemed it not proper for one holding a mere consular position to assume the relation to an international question vested only in those having plenipotential powers. The matter has long ceased to be of personal concern to me. The man who was at the bottom of the official demonstration against me has withdrawn his claim and accepted the terms I had offered for adjustment of our differences. Indeed, I was at all times willing to submit the matter to the adjudication of any court. I have not one sou of personal interest in the matter and my only contention is that the action was a deliberate violation of the treaty and a gross affront to the flag of the United States. The convention between the United States and France of February 23, 1853 (French confirmation September 11, 1853), provides, among other things: A. Generally, that the consular representatives of each country shall enjoy in the other (a) The privileges usually accorded to their offices, and (b) all the privileges, immunities, and exemptions that may be granted the like agents of the most-favored nation. B. Specially, (a) personal immunity except in case of crimes, and (b) that they shall never be required to appear in court even as a witness. * * C. That they may place on the outer door of their offices "or of their dwellings" the arms of their nation, etc., and they shall be allowed to hoist (French, deployer) the flag of their country thereon. 66 D. The consular office and dwellings (French, chancelleries et habitations) shall be inviolable. The local authorities shall not invade them (French, ne peuvent les envahir) under any pretext. In no case shall they seize or examine (French, visiter ou saisir) the papers deposited therein;" that is, in the "offices or dwellings. In the face of these provisions, the following occurred: 1. On the 4th day of April, 1899, M. Lasserre, the vice-president of the tribunal civil of Bordeaux, issued a writ of saisie-gagerie, ordering a bailiff to enter and search my dwelling and seize all personal effects belonging to me therein. A translation of said writ is attached hereto marked "A." 2. The bailiff named in said writ appeared at my dwelling on the 10th of April following a week after its issue-and, on my refusal to permit said writ to be executed, he procured the assistance of the commissary of police of Arcachon, the commune in which my dwelling was located, forcibly pushing me out of the doorway where I stood forbidding their entrance, thrusting my daughter, who stood beside me, violently against the hatrack in the hall, and pushing me the whole length of the hall to the stairway at the end, some 12 or 15 feet. The accompanying picture' was taken by an artist who saw the whole affair and is entirely correct. 3. The same proceeding was repeated at every door, I forbidding entrance and the commissary in each case removing me by force. Having been an invalid for more than a year I was not able to put up much of a fight, but I did not one instant cease to resist and protest while one of the posse remained in the house. At the same time my language was entirely respectful, and, in the main, theirs to me was of like character. 4. The procès-verbal, or return of the writ, marked "B," signed by both officials and each member of the posse, admits, (1) that I refused admission to the parties and claimed the house was inviolable as being the dwelling of a consul of the United States, situate in his consular district; (2) that I continued to protest against and forbid such invasion; (3) that no seizure was made. The procès-verbal says they could find nothing to seize. The statement is astounding in view of the facts. Of course, as the villa was rented furnished, no one would expect to find much furniture of the tenants in it. There were, however, rugs on which some of the party stood which are valued for insurance at more than the whole claim, which was $272; books, typewriter, silver, a new invalid bath chair, and other personalty, not including clothing, certainly worth twice as much more; and in an unlocked jewel case in a wardrobe opened by the bailiff there were diamonds and other jewelry never appraised at less than $3,000, or ten times the value of the claim. Why were none of these things seized? 5. It is quite impossible Frenchmen should not know the value of rare rugs, jewelry, etc. They knew they were violating the treaty, since the commissary said, while parleying at the door, "I do not concern myself with conventions, consuls, or flags; I have the court's order; that is enough." Thereupon he displayed his badge of office and ordered me to cease resistance in the name of the French Republic. The bailiff, jerking his thumb at the American flag hanging over the door, which had been referred to as my protection, said, "Nous ne respectons pas ce drapeau-là!” These words show that they knew the character of the act in which they were engaged. Why did they not complete it by making seizure? 6. Perhaps the answer of this question may be found in the exceptional character of the writ. The writ of saisie-gagerie is a provisional execution, not very different in character from our writ of attachment. In ordinary cases it is only issued after notice has been served on the defendant to show cause why such writ should not be allowed. This notice is called a "commandement" and is the initial process in all actions, its express purpose being to prevent the defendant being taken by surprise and deprived of his opportunity for defense. It can only be dispensed with by express order of the judge granting the writ; and this order can only be allowed when the judge is satisfied that the defendant is likely to remove his person or his property out of the jurisdiction. In the case of a French citizen, only the most persistent bad character would justify the issue of such a writ without notice. In the case of a foreigner, the fact that he is a nonresident of the Republic is held to justify it if his residence is 1 Not printed. FR 1900- -28 |