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The undersigned, in presenting berewith to the honorable Secretary of State an authentic copy of the decision of Judge Leonard, of the supreme court of New York, on the validity of the consular privilege of the consul general of Saxony above mentioned, has the honor to renew on this occasion to the Hon. W. H. Seward the assurances of his most distinguished consideration.
FR. V. GEROLT. Hon. William H. SEWARD,
Secretary of State of the United States, Washington.
At a special term of the supreme court of the State of New York, held at the City Hall in the city of New York, on Friday, the 15th day of February, one thousand eight hundred and sixty-seven.
Present, Hon. William H. Leonard, justice.
FRANCIS M. BIGBY
against GERHARD JANSSEN, LEOPOLD
SCHMIDT, and others. An application to compel Leopold Schmidt, above mentioned, to appear to be examined as a witness, and to give testimony at the instance of the plaintif herein, before trial, and an order therefor having been granted, after hearing Spaulding & Richardson, of counsel for the plaintiff, and Mr. Henry D. Lapaugh, of counsel for the said Leopold Schmidt, and it appearing to the court from the exequatur of said Leopold Schmidt that he is the consul for his Majesty the King of Saxony at New York
It is ordered that the said order be and the same is hereby dismissed for want of jurisdiction.
I, William C. Conner, clerk of the said city and county, do certify that I bare compared the preceding with the original order on file in my office, and that the same is a correct transcript therefrom, and of the whole of such original.
In witness whereof, I have hereunto subscribed my name and affixed my ficial seal this 20th day of February, 1867. (SEAL.]
WM. C. CONNER. Clerk.
Mr. Scward to Baron Gerolt.
DEPARTMENT OF STATE,
IVashington, February 26, 1867. The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note of Baron Gerolt, envoy extraordinary and minister plenipotentiary of his Majesty the King of Prussia, of the 20th instant
, on the subject of the President's withdrawal of the exequatur of the consul of Oldenburg at New York, which took place on the 26th of December last, and of an apprehension entertained by the baron that the exequatur of the consul of his Majesty the King of Saxony, at the same place, may for some proper cause, at some time hereafter, be revoked.
In reply, the undersigned has the honor to state that at the time when the erequatur of the consul of Oldenburg was withdrawn by the President, this government had not received, not has it yet received, any information that Baron Gerolt represents the grand duchy of Oldenburg, near this government. The undersigned has already, heretofore, taken notice from Baron Gerolt that Prussia claims a right to hold diplomatic correspondence on behalf of Saxony. The undersigned will therefore always be ready to give the most respectful attention to any representations which the baron may, in the character of the representative of Saxony, see fit to make. The undersigned, however, is not aware that any practical question affecting the political interests of Saxony has hitherto arisen or is now existing.
The undersigned avails himself of this occasion to offer to Baron Gerolt renewed assurances of his high consideration.
WILLIAM H SEWARD. Baron Von GEROLT, Sr., fr., dr.
Baron Gerolt to Mr. Szward.
LEGATION OF PRUSSIA IN WASHINGTON,
March 7, 1867. The undersigned, envoy extraordinary and minister plenipotentiary of his Majesty the King of Prussia, has the honor to inform the honorable William H. Seward, Secretary of State of the United States, that the government of the grand duchy of Oldenburg applied to the government of the King, on the 5th of February, asking him to instruct his Majesty's legation in Washington to use its good offices near the government of the United States to obtain information in regard to the cause of the revocation of the exequatur of the consul of Oldenburg, Mr. G. Janssen, at New York, by the proclamation of the President of the United States on the 26th of December last.
In conformity with that request of the government of Oldenburg, the government of his Majesty has ordered the undersigned to apply to the honorable Secretary of State, and request him to have the kindness to furnish the information desired by the government of Oldenburg.
The undersigned, in obeying the order, profits by the occasion that offers to repeat to the honorable William H. Seward the protestations of his most distinguished consideration.
FR. V. GEROLT. Hon. William H. SEWARD,
Secretary of State, Washington.
Mr. Seward to Baron Von Gerolt.
DEPARTMENT OF STATE,
Washington, March 11, 1867. The undersigned, Secretary of State of the United States, has the honor to acknowledge the receipt of the note addressed to him by Baron Von Gerolt on the 7th instant, in which he states that his government, at the instance of the government of Oldenburg, has directed him to obtain information in regard to the cause of the revocation of the exequatur of the consul of Oldenburg at New York, Mr. G. Janssen, by the proclamation of the President of the United States, dated the 26th of December last.
In reply, the undersigned has the honor to transmit to Baron Von Gerolt a copy of the proclamation alluded to for the use of the government of Oldenburg. The baron will be at liberty to inform the government of Oldenburg that the government of the United States, adhering to the ninth article of the treaty with Hanover, to which Oldenburg is a party, will, with pleasure, receive any unexceptionable person who may be appointed by Oldenburg, to fill the place made vacant by the revocation of Mr. Janssen's exequatur.
The undersigned takes this occasion to offer to Baron Von Gerolt renewed assurances of his very high consideration.
WILLIAM H. SEWARD. Baron Von GEROLT, 8r., 80., sc.
Mr. Lapaugh to Mr. Seward.
WASHINGTON, D, C., March 13, 1867. Sir: I had the honor to submit to you, respectively, on the 1st of January and the 4th of February last, communications relative to the case of Gerhard Janssen, esq., and to apply therein for the withdrawal of the proclamation of his Excellency the President, revoking the exequatur issued to Mr. Janssen as the duly appointed consul at New York of his Royal Highness the Grand Duke of Oldenburg.
In view of the importance of the subject, as well as the right of Mr. Janssen to have justice done him in the matter, I hereby take the liberty, as counsel for him, and the consulate of Oldenburg, respectfully to renew, and earnestly urge, the request that his Excellency the President recall the above-mentioned proclamation, and that Mr. Janssen be permitted, as the consul of Oldenburg for New York, to exercise and enjoy such functions, powers, and privileges as are allowed to consuls by the laws of nations, or by the laws of the United States.
In my previous communications brought before you for consideration in this affair, I contented myself in presenting such facts only as bore more directly upon the public law or the international question involved.
Circumstances, however, have since occurred, which, in my opinion, certainly excuse, even if they do not now actually require, my going a step further, and, by this paper, calling your attention to the fact that the first proof of the consulship of Mr. Janssen, which was introduced into the suit of Humphrey & Co. against Mr. Janssen, consists of the certificate or letter from the Hon. F. W. Seward, Assistant Secretary of State, dated the 25th day of June last, addressed to Humphrey & Co.'s attorneys, namely, Torrance, Spaulding & Richardson, and by them, as such attorneys, read in evidence on the part of Humphrey & Co., in their said suit against Mr. Janssen, before Judge T. W. Clarke on the 7th of July last.
Of the existence of that letter, or of the intention to have the same put in evidence, neither Mr. Janssen nor myself had any knowledge until the said letter was so read in evidence before the court by the attorneys of Humphrey & Co.
Whether the State Department will sanction the use made of that letter by Humphrey & Co., now that the department has full information of such use, remains, of course, to be made known. Still, I take pleasure in expressing the belief that the department will discountenance that act or proceeding of Yumphrey & Co, and promptly disavow that the said letter was furnished by the department to Torrance, Spaulding & Richardson with the intention of having it used by them for the accomplishment of the purpose in which they employed
Although Mr Janssen had the undisputed right, in the suit of Humphrey & Co. against him, to prove that he was the consul of Oldenburg, yet it so happened. in this instance, not only that he did not do so, but that all the evidence in that suit as to his consulship was introduced by Humphrey & Co. or their attorneys
It was, therefore, not Mr. Janssen who used his official position, but the par ties opposed to him, for in the very moment that those parties furnished the inforination in the aforesaid suit to the State court that Mr. Janssen was then a foreign consul, duly accredited to the United States, that court was compelled, in accordance with the law, to dismiss the proceedings of Humphrey & Co. pending against Mr. Janssen for want of jurisdiction; and yet, because the court did thereupon dismiss those proceedings, on that precise ground and upon no other the exequatur issued to Mr. Janssen is summarily and without any notice to him absolutely revoked by the President.
The manifest injustice thereby inflicted upon Mr. Janssen and his government no one can fail to perceive. It has become, under the circumstances, scarcely possible to add anything inore to the strength or suficiency of the reasons already presented by Mr. Janssen for the withdrawal, by the executive authority of the United States, of the aforesaid proclamation.
Nevertheless, in this connection, it may be well to observe that the shipping interests of Oldenburg are being subjected to serious inconvenience and exposed to constant risk at New York because of the declaration by the President that he no longer recognizes Mr. Janssen as the consul of Oldenburg for that port, and will not permit him to act as such.
For several weeks last past there have been, on an average, daily at New York, six or seven merchant vessels belonging to Oldenburg, and hence the due consideration for the interests and necessities of commerce, as well as justice to Mr. Janssen, would be greatly subserved by the restoration to Mr. Janssen of his consular functions, powers and privileges, and especially so since both his government and himself feel confident that he was entirely correct as to the law and fact in the course of action which he, as the consul of Oldenburg, deemed it his duty to pursue, and that the communications in that respect handed to you on his behalf ought to be accepted as satisfactory to the government of the United States.
Moreover, it must by no means be overlooked that Mr. Janssen has never as yet had afforded to him any opportunity of seeing the statements or hearing the representations of the person or persons who moved for and brought about the revocation of his exequatur, and therefore I respectfully ask, on the principle of common fairness towards Mr. Janssen, for a statement or explanation from the government of the United States of the reasons or motives upon which the revocation of his exequatur was suggested or sought, and also for the grounds of the charge upon which that revocation was finally proclaimed by his Excellency the President.
Mr. Janssen deeply regrets that in this matter of the revocation of the exequatur, his own reputation, as well as that of the consulate of Oldenburg, has been assailed unjustly and without cause, and consequently he demands from the government of the United States, through whose premature or inadvertent action the injury or mischief has been done, a speedy hearing of his case by the President of the United States.
In that event I do not hesitate to affirm that it would be established to the entire satisfaction of the President that Mr. Janssen is legally and justly entitled forthwith to be restored to the free exercise and enjoyment of his consular functions, powers and privileges, and of the exercise and enjoyment of which he has been wrongfully deprived, as I have good warrant for saying, by grave misapprehensions induced or created by the adversaries of Mr. Janssen, in order merely to further their own private ends of more than doubtful propriety.
Repeating hereby my request on behalf of Mr. Janssen for the undelayed granting of the application for the recall of the President's proclamation of revocation in Mr. Janssen's case, and soliciting, in the same, the favor of an inn
mediate personal interview with you, I have the honor to remain, sir, with the assurance of my highest esteem, Very respectfully, your obedient servant,
HENRY D. LAPAUGH, Counsel. Hon. WILLIAM H. SEWARD,
Secretary of State of the United States.
Report of E. Peshine Smith, examiner of claims.
DEPARTMENT OF STATE, Bureau of Claims,
Washington, March 20, 1867. To the Secretary of State :
In accordance with your instructions I have reviewed the entire correspondence relating to the revocation by the President of the exequatur of Gerhard Janssen, esquire, as consul for the Grand Duke of Oldenburg.
The reason assigned for such revocation in the President's proclamation is that Mr. Janssen had “refused to appear in the supreme court of the State of New York to answer in a suit there pending against himself and others, on the plea that he is a consular officer of Oldenburg, thus seeking to use his official position to defeat the ends of justice.”
These words “refused to appear to answer” are descriptive as well of a refusal to appear and answer as a party in the pleadings, as of a refusal to appear and answer as a witness. The counsel of Mr. Janssen bave taken advantage of the double sense which may be attributed to those words to obscure the discussion of the true issue by long explanations in respect to one which was wholly immaterial.
That Mr. Janssen had a perfect right to decline to appear and answer as a party in a State court was never questioned by this government, and it could not but be known to his counsel that had he chosen to exercise that right, no offence could or would have been taken. In point of fact, as it appears without dispute, he elected to waive his privilege in that particular, and voluntarily made himself a party to the pleadings by causing an appearance to be entered for him, although he had not been served with process, and an answer to be put on his behalf. In respect to this, there was no accusation nor imputation of blame; and Mr. Janssen's counsel exhibit such knowledge of the law and of the praetice of this government upon this point, that they could not be ignorant that the offence imputed to him was not a refusal to appear and answer as a party, but a refusal to appear and answer as a witness.
That Mr. Janssen was required to appear as a witness and to give his testimony in an action pending in the supreme court of the State of New York, is not questioned. Nor is it denied that, having notice of the requisition, he failed to appear; that the counsel who appeared in his behalf at the time and place for complying with the summons set up the fact that his client was the consul of Oldenburg; and that as a consequence of this, and upon no other ground, the proceeding was dismissed and the plaintiffs in the suit lost the benefit of his testimony.
This government instructs its consular officers, even where, as in France, there is a treaty stipulation, that they shall not be compelled to appear as witnesses before the courts; that it is nevertheless their duty, on invitation, to appear and give their testimony unless necessarily prevented; that they have no right on account of their official position, or disinclination, or personal incouveniences, to refuse compliance with such invitation, and that a refusal without good cause therefor will be regarded as an act of disrespect toward the govern