« ПредыдущаяПродолжить »
pears that the consul of Oldenburg declined to answer the summons of court to attend and testify in the case of James Humphrey and others vs. Gerhard Janssen and others, availing himself of his assumed privilege, &c.
In your (private) note* of 5th October last to me you said: “The letter of Torrance & Richardson has been found, and we have written to the consul of Oldenburg at New York that unless he withdraws his plea of official privilege the President will be asked to withdraw his exequatur, which, of course, would invalidate the plea.
Please take such action as may be proper in the matter, and advise me thereof at your earliest convenience. Very respectfully, &c.,
HORATIO KING. Hon. WM. HUNTER,
Assistant Secretary of State, Washington.
111 BROADWAY, New YORK,
December 21, 1866. Dear Sir: At the request of Mr. F. M. Bixby, we now hand you the enclosed papers in the Janssen suit, by which you will be enabled to show to the State Department, conclusively, that Janssen has actually claimed and used his privilege in our suit, and has thereby procured the dismissal of our proceedings to take his testimony. His testimony and inspection of his books is absolutely necessary to enable us to prepare for trial, as we have no other way
of getting at the proceedings between his firm and their predecessors.
Mr. Janssen has never appeared in court in obedience to the order, but only by counsel. On the last hearing counsel produced his exequaturs: first, as vice-consul, dated in 1864, and, second, as consul, dated in 1866, and the afidavit of his attorney, (copy enclosed.)
Mr. Bixby requests that you will now, as quickly as can be, take the necessary steps with the department to get the action indicated in Mr. Hunter's letter to you of 5th October last, (enclosed.)
Please bear in mind that the statute in question (giving the privilege) extends to all suits which “affect” a consul, &c. So that it will be necessary, in order to relieve us effectually, to have the exequatur revoked of each member of his distinguished firm who happens to be a consul.
The firm is composed of Gerhard Janssen, (consul, Oldenburg,) Leopold W. Schmidt, (consul, Saxony) William T. Williams, (uncertain,) H. E. Ruperti, (uncertain.)
Please remember this fact—the main trick in the defence—viz: They did not allege the fact of consulship in pleading, nor in any manner give us notice of it, allowing us to consume months of time, intending, if we should get a judgment, to render it of no effect by asserting this privilege to vacate our execution. They did assert it to avoid giving testimony.
Mr. Bixby expects to be in Washington in a few days after New Year's, and will attend to your charges for your services in this matter.
We trust very soon to hear a favorable report of results-one which will be useful to our mercantile community, as well as to our clients, and look well in a newspaper. We are, very truly, yours,
SPAULDING & RICHARDSON,
Attorneys for Bixby & Co. Hon. HORATIO King.
* Of this private note no copy was retained in the department.
William P. Richardson, being duly sworn, says that he is one of the attorneys for the plaintiffs in this action ; that said action is pending and at issue in this court, and is brought to recover a claim of the plaintiffs against the defendants for storage of goods and disbursements amounting to $575 60 cents, and interest.
That from the pleadings and from the statement made to deponent by the plaintiffs of the case, deponent believes that an examination of the defendants, or of such of them as have personal knowledge of the facts relating to said claim, is necessary to enable the plaintiffs to prepare for the trial of this action, and that a summons or order should be granted for that purpose.
W. P. RICHARDSON. Sworn before me this 23d day of February, 1866.
RICHARD C. BEAMISH,
Notary Public, N. Y. County. A true copy of the original now on file:
WM. C. CONNER, Clerk. SUPREME COURT. By Hon. Daniel P. Ingraham, a justice of the supreme court. James Humphrey et al. GERHARD JANSSEN et al. S
You, Gerhard Janssen, are hereby summoned to appear and attend before me at the special term of the supreme court, at the chambers of said court at the City Hall in the city of New York, on Saturday, the 3d day of March, 1866, at 10 o'clock in the forenoon of that day, to be examined as a witness, and to give testimony, pursuant to the provisions of the 390th and 391st sections of the Code of Procedure, at the instance of the plaintiffs, in a cause pending in the said court between Francis M. Bixby and others as plaintiffs and yourself and others as defendants, and in case of your refusal to or failure to attend and testify, you will be liable to be punished as for a contempt, and your answer may be stricken out. Witness my hand this 23d day of February, in the year 1866.
D. P. INGRAHAM, Justice. A true copy of the original now on file :
WM. C. CONNER, Clerk.
STATE OF New York, City and County of New York, ss :
Henry D. Lapaugh of said city, being duly sworn, says that he is counsel for Gerhard Janssen, of the firm of Janssen, Schmidt & Ruperti
. Deponent further says that he knows of his own knowledge that for at least five years last past the said Gerhard Janssen has been respectively vice-consul and consul of Oldenburg at New York.
HENRY D. LAPAUGH. Sworn to before me this 18th day of December, 1866.
GEO. B. G. ROSCHMIDT. A true copy of the original on file:
WM. C. CONNER, Clerk.
At a special term of the supreme court of the State of New York, held in and for the city and county of New York, at the City Hall in said city, on Tuesday, the 18th day of December, 1866.
Present, Hon. Daniel P. Ingraham, justice.
James HUMPHREYS, et al.
against GERHARD JANSSEN et al.
Ordered, This proceeding is dismissed, defendant claiming his privilege as consul for Oldenburg,
From the minutes : (L. s.]
WM. C. COSNER, Clerk.
Andrew Johnson, President of the United States of America, to all whom it
may concern : An exequatur, bearing date the twenty-second day of March, 1866, having been issued to Gerhard Janssen, recognizing him as consul of Oldenburg for New York, and declaring him free to exercise and enjoy such functions, powers
, and privileges as are allowed to consuls by the law of nations, or by the laws of the United States and existing treaty stipulations between the government of Oldenburg and the United States, and the said Janssen having 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, it is deemed advisable that the said Gerhard Janssen should no longer be permitted to continue in the exercise of said functions, powers and privileges.
These are, therefore, to declare that I no longer recognize the said Gerhard Janssen as consul of Oldenburg for New York, and will not permit him to exercise or enjoy any of the functions, powers, or privileges allowed to consuls of that nation, and that I do hereby wholly revoke and annul the said exequatur heretofore given, and do declare the same to be absolutely null and void from this day forward.
In testimony whereof, I have caused these letters to be made patent and the seal of the United States of America to be hereunto affixed.
Given under my hand, at Washington, this twenty-sixth day of December, in (SEAL]
the year of our Lord 1866, and of the independence of the United States of America the ninety-first.
ANDREW JOHNSON. By the President: William H. SEWARD,
Secretary of State.
Mr. Lapaugh to Mr. Seward.
WASHINGTON, D. C., December 31, 1866. Sir: In relation to the case of Gerhard Janssen, esquire, whose exequatur, as consul of Oldenburg for New York, was, on the 26th instant, revoked by his Excellency the President of the United States, I have the honor, as counsel for Mr Janssen, hereby to submit that such revocation arose from a misunderstanding of the real facts of the case, which are as follows, namely:
In the month of December, 1865, a suit was commenced in the supreme court of the State of New York by James Humphrey and Francis M. Bixby against Gerhard Janssen, William T. Williams, Leopold Schmidt, and H. A. Ruperti.
On the 9th of February following Mr. Janssen appeared in the suit by interposing a verified written plea or answer upon the merits only to the plaintiffs' complaint.
On the 23d of February the plaintiffs, through an ex parte application and without any notice whatever to Mr. Janssen, procured from Mr. Justice Ingraham an order requiring Mr. Janssen to appear in said court to be examined as a witness, and give evidence against himself before the trial of the action; said order further reciting that, in case of his refusal or failure to attend and testify, he would be liable to be punished for contempt, and his answer might be stricken out.
On the return day of the order Mr. Janssen did appear by me before the court for the purpose of arguing the question as to the right of the plaintiffs to obtain such an order; and yet, in view of the uniform decisions of all the courts of New York that the State courts have not and cannot acquire any jurisdiction as to a foreign consul in any action against him, even though he makes no objection, but expressly waives his consular privilege, since jurisdiction over foreign consuls here is exclusively vested in the United States courts, and also in view especially of the suggestion of the supreme court of New York previously made to me, that it was the duty of counsel representing foreign consuls, defendant to inform the State court, at the earliest practicable moment, of the existence of such consulship in any given case, I did not and could not well omit, before entering at large upon the argument of the motion aforesaid, to avail myself of the occasion respectfully to inform the court that Mr. Janssen was the vice-consul of Oldenburg
Thereupon Mr. Justice Ingraham stated that the proper course for Mr. Janssen, under the circumstances, would be to move to dismiss the plaintiffs' action; to which I replied that it was not my wish to do so, but that I was willing, on behalf of Mr. Janssen, to have the cause tried upon its merits.
The court then directed the plaintiffs' motion to stand over to a future day, from which it was continued until the 18th of December, when it was finally dismissed by Justice Ingraham himself. As the counsel for Mr. Janssen, I had steadily declined from the beginning to make any inotion to dismiss the plaintiffs' action.
In consideration of the foregoing explanation of the facts and law of the matter, it is to be hoped, as I hereby respectfully request, that the proclamation of his Excellency the President revoking the exequatur of Mr. Janssen may be recalled, and he be restored and recognized as the consul of Oldenburg at New York.
With assurance of high esteem, I have the honor to be your very obedient servant,
HENRY D. LAPAUGH, New York. Hon. WILLIAM H. SEWARD,
Secretary of State of the United States.
Mr. King to Mr. Sewaril.
WASHINGTON, January 4, 1867. Sir: I have the honor to acknowledge the receipt of your letter of the 3d instant, transmitting a copy of a letter addressed to you by Henry P. Lapaugh, esq., of New York, counsel for Mr. Gerhard Janssen, late consul of Oldenburg, relative to the case of James Humphrey and Francis M. Bixby against Janssen and others, and requesting such information or observations as may show that in that proceeding (the recent withdrawal of the exequatur of Mr. Janssen) no injustice was done to him.
In answer, I beg to state that your communication will be immediately for. warded to Messrs. Spaulding & Richardson, of New York, attorneys for Humphrey & Co., with request for such reply as they may be pleased to make. Meantime I desire to call your attention to the enclosed newspaper articles and statement received yesterday from them on the subject. I have the honor to be, with great respect, your obedient servant,
HORATIO KING. Hon. William H. SEWARD,
Secretary of State.
The publication of the President's proclamation revoking the exequatur of Mr. Consul Janssen has stirred up the whole regiment of foreign consuls in this city, and leading newspapers of the city have been pressed into their service to call the reprobation of public opinion upon the temerity of the President in daring to invade their ancient prescriptive rights.
It appearing from one of Janssen's published communications that he will attempt to justify himself and induce the President to recant and reinstate him, and as, perhaps, a considerable pressure will be brought to bear to accomplish that end, we throw out a few suggestions which occurred to us which may enable you to oppose such efforts. 1st. It is evident that the statute in question deals with ministers, consuls
, &c. as such, and looks at them only in their official capacity. As such, perhaps, it is well designed, and those officers, as representing in diverse forms the rights and interests of foreign powers, should receive all necessary consideration and protection from our government. But when they are merchants and traders, thus by their own acts and professions placing themselves on a level with other men, they throw off the public and representative character, which the statute contemplates, and should not, and we think do not, coine within its provisions according to its true intent and meaning.
This is the only just and equal aspect of the statute, and any other would be antagonistic to the policy of our laws, which make all men equal in the presence of the law.
2d. This is evidently the view and construction of the State Department, as evidenced in the case of Rock River Bank vs. Hoffman, 22 How. Pr. R.,
and in their action in this case of Janssen.
3d. The construction given to the statute by our court of appeals is, that the privilege in question is not that of the consulate of his government, but the privilege of the government of the United States.
Then it is certainly competent for the United States, through its Executive, to waive or withdraw its privilege at pleasure, as much as it would be Janssen's right to exercise that right, if it were in fact his. No proper complaint can, therefore, be made when the government, in a proper case and to promote the regular administration of justice, withdraws this shield which has been extended, and leaves Mr. Janssen to be dealt with in the ordinary tribunal having jurisdiction of the contract in which he is sued.
4th. This supposed view of the State Department is further evidenced by the established policy of our government, in prohibiting its own consuls and other representatives in foreign countries from trading. The comity of nations does not require us to extend to the precinct of Oldenburg privileges for her representatives here which we do not ask for ours in her dominions.