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Harry M. Blackmer v. The United States of America

Published online by Cambridge University Press:  12 April 2017

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Abstract

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Type
Judicial Decisions Involving Questions of International Law
Information
American Journal of International Law , Volume 26 , Issue 3 , July 1932 , pp. 611 - 618
Copyright
Copyright © by the American Society of International Law 1932

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References

1 The Act is as follows: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever letters rogatory shall issue out of any court of the United States, either with or without interrogatories addressed to any court of any foreign country, to take the testimony of any witness, being a citizen of the United States or domiciled therein, and such witness, having been personally notified by it according to the practice of such court, to appear and testify pursuant to such letters rogatory and such witness shall neglect to appear, or having appeared shall decline, refuse, or neglect to answer to any question which may be propounded to him by or under the authority of such court, to which he would be required to make answer were he being examined before the court issuing such letters, the court out of which said letters issued may upon proper showing order that a subpoena issue addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the said court at a time and place therein designated.

“Sec. 2. Whenever the attendance at the trial of any criminal action of a witness, being a citizen of the United States or domiciled therein, who is beyond the jurisdiction of the United States, is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the court before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue, addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the said court at a time and place therein designated.

“Sec. 3. It shall be the duty of any consul of the United States within any country in which such witness may be at the request of the clerk of the court issuing any subpoena under this Act or at the request of the officer causing such subpoena to be issued, to serve the same personally upon such witness and also to serve any orders to show cause, rules, judgments, or decrees when requested by the court or United States marshal, and to make a return thereof to the court out of which the same issued, first tendering to the witness the amount of his necessary expenses in traveling to and from the place at which the court sits and his attendance thereon, which amount shall be determined by the judge on issuing the order for the subpoena and supplied to the consul making the service.

“Sec. 4. If the witness 80 served shall neglect or refuse to appear as in such subpoena directed, the court out of which it was issued shall, upon proof being made of the service and default, issue an order directing the witness to appear before the court at a time in such order designated to show cause why he should not be adjudged guilty of contempt and be punished accordingly.

“Sec. 5. Upon issuing such order the court may, upon the giving of security for any damages which the recusing witness may have suffered, should the charge be dismissed (except that no security shall be required of the United States), direct as a part of such order that the property of the recusing witness, at any place within the United States, or so much thereof in value as the court may direct shall be levied upon and seized by the marshal of said court in the manner provided by law or the rule of the court for a levy or seizure under execution, to be held to satisfy any judgment that may be rendered against such witness in the proceeding so instituted.

“Sec. 6. The marshal, having made such levy, shall thereupon forward to the consul of any country where the recusing witness may be a copy of the order to show cause why such witness should not be adjudged guilty of contempt with the request that said consul make service of the same personally upon the recusing witness, and shall cause to be published such order to show cause and for the sequestration of the property of such witness, in some newspaper of general circulation in the district within which the court issuing such order sits, one each week for six consecutive weeks.

“Sec. 7. On the return day of such order or any later day to which the hearing may by the court be continued, proof shall be taken; and if the charge of recusancy against the witness shall be sustained, the court shall adjudge him guilty of contempt and, notwithstanding any limitation upon the power of the court generally to punish for contempt, impose upon him a fine not exceeding $100,000 and direct that the amount thereof, with the costs of the proceeding, be satisfied, unless paid, by a sale of the property of the witness so seized or levied upon, such sale to be conducted upon the notice required and in the manner provided for sales upon execution.

“Sec. 8. Any judgment rendered pursuant to this Act upon service by publication only may be opened for answer within the time and in the manner provided in section 57 of the Judicial Code.”

2 “The law of nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy.” Oppenbeim, International Law, 4th ed., Vol. I, sec. 145, p. 281; Story, Conflict of Laws, 8th ed., sec. 540, p. 755; Moore’s International Law Digest, Vol. II, pp. 255, 256; Hyde, International Law, Vol. I, sec. 240, p. 424; Borchard, Diplomatic Protection of Citizens Abroad, sec. 13, pp. 21, 22.

3 Compare The Nereide, 9 Cranch. 388, 422, 423; Rose v. Himely, 4 Cranch. 241, 279; The Apollon, 9 Wheat. 362, 370; Schibsby v. Westenholz, L. R. 6 Q. B. 155, 161. Illustrations of acts of the Congress applicable to citizens abroad are the provisions found in the chapter of the Criminal Code relating to “Offenses against Operations of Government” (U. S. C., Tit. 18, chap. 4; United States v. Bowman, 260 U. S. 94, 98–102) and the provisions relating to criminal correspondence with foreign governments, Act of January 30, 1799, 1 Stat. 613, U. S. C., Tit. 18, sec. 5.

4 See, also, Hyde, op. cit., Vol. I, sec. 381, pp. 668, 669.

5 The instant case does not present the questions which arise in cases where obligations inherent in allegiance are not involved. See Pennoyer v. Neff, 95 U. S. 714; Galpin v. Page, 18 Wall. 350, 369; Harkness v. Hyde, 98 U. S. 476, 478; Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 193; McDonald v. Mabee, 243 U. S. 90, 92; Wuchter v. Pizzutti, 276 U. S. 13.

6 Cf. Dainese v. Hale, 91 U. S. 13, 15, 16; In re Ross, 140 U. S. 453, 462, 463. See, also, U. S. C., Tit. 22, seos. 71 et seq.; Hyde, op. cit., sec. 488, pp. 828–832.