PRIVATE RIGHTS AND STATES' RIGHTS. 177 



consul's claim to immunity by an interpretation reconciling the 

 treaty clause and the constitutional guarantee in question. How- 

 ever, in a diplomatic controversy resulting from a French protest 

 against the original arrest of the consul for refusal to obey the 

 subpoena, Secretary of State Alarcy took a less favorable view of 

 the treaty : ^* 



" The Constitution is to prevail over a treaty where the provisions of 

 the one come in conflict with the other. It would be difficult to find a 

 reputable lawyer in this country who would not yield a ready assent to this 

 proposition. Mr. Dillon's counsel admitted it in his argument for the con- 

 sul's privilege before the court in California. The sixth amendment to the 

 United States Constitution gives, in general and comprehensive language, 

 the right to a defendant in criminal prosecutions to have compulsory process 

 to procure the attendance of witnesses in his favor. Neither Congress nor 

 the treaty-making power are competent to put any restriction on this con- 

 stitutional provision. ... As the law of evidence stood when the Constitu- 

 tion went into effect, ambassadors and ministers could not be served with 

 compulsory process to appear as witnesses, and the clause in the Constitu- 

 tion referred to did not give the defendant in criminal prosecutions the 

 right to compel their attendance in court. But what was the case in this 

 respect as to the consuls? They had not the diplomatic privileges of am- 

 bassadors and ministers. After the adoption of the Constitution the de- 

 fendant in a criminal prosecution had the right to compulsory process to 

 bring into court as a witness in his behalf any foreign consul whatsoever. 

 If he then had it, and has it not now, when and how has this constitutional 

 right been taken from him ? Congress could not take it away, neither could 

 the treaty-making power, for it is not within the competence of either to 

 modify or restrict the operation of any provision of the Constitution of the 

 United States." 



Though with his interpretation of the Constitution, Secretary 

 Marcy was doubtless correct from a constitutional point of view,^^ 

 yet in the international discussion he found it necessary to acquiesce 

 in the French view and make amends for the arrest.^" Since 

 France had not been informed of the constitutional limitation 

 when the treaty was made she was entitled to hold the United 



3* Moore, Digest, 5 : 167. 



35 To the same effect, see Mr. Marcy to Mr. Aspuria, Nov. 15, 1854; Mr. 

 Blaine. Sec. of State, to Mr. Chen Lan Pin, March 25, 1881 ; Mr. Cass to 

 Lord Napier, Feb. 7, 1859 ; Moore, Digest, 5 : 169, 177 ; Cherokee Tobacco 

 Case, II Wall. 616 (1870) ; Geofroy v. Riggs, 133 U. S. 258 (1890) ; Corwin, 

 National Supremacy, p. 5; Crandall, op. cit., p. 266; VonHolst, Constitutional 

 Law of U. S., Chicago, 1887, p. 202. 



•■'6 Moore, Digest, 5 : 80. 



