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3. INTERPOSITION WITH LOCAL AUTHORITIES.
“ In countries with which the United States have treaty stipulations providing for assistance from the local authorities, consular officers are instructed that it is undesirable to invoke such interposition unless it is necessary to do so. In cases of arrest and imprisonment, they will see, if possible, that both the place of confinement and the treatment of the prisoners are such as would be regarded in the United States as proper and humane. If a request for assistance is refused, the consular officer should claim all the rights conferred upon him by treaty or convention, and communicate at once with the diplomatic representative in the country, if there be one, and with the Department of State. When such requests are made in accordance with long-established usage, he should, when they are refused, make suitable representations to the proper local authority, and likewise advise the legation and the Department."
Printed Pers. Inst. Dip. Agents, 1885, $ 150, p. 32.
Though not entitled to represent his sovereign in a country where the sovereign has an ambassador, a consul is entitled to intervene for all subjects of that power interested.
Robson v. The Huntress, 2 Wall. jr. 59.
" It seems to us only reasonable that when any person being a prisoner alleges, with apparent probability, that he is an American citizen, that the acting political authorities in New Granada should allow him to be visited by the consul of the United States, to the end that, the fact of his citizenship being verified, the consul may lend his good offices or bring his case before this government. In such a case it would be proper for you to bring the subject formally to the notice of the authorities, if you had been duly received, and if not then to do it in formally while the question of your admission to your position is in abeyance."
Mr. Seward, Sec. of State, to Mr. Burton, min., to Colombia, No. 16,
Jan. 29, 1862, MS. Inst. Colombia, XVI. 26. July 24, 1861, Lord Lyons applied for an order to allow the British
consul at Baltimore to visit Thomas C. Fitzpatrick, a British subject, then held as a prisoner at Fort McHenry. On the 26th of July, Mr. Seward transmitted an order from the Secretary of War comply. ing with Lord Lyons's request. (Mr. Seward, Sec. of State, to Lord Lyons, British min., July 26, 1861, MS. Notes to Great Britain, VIII.
470.) See Mr. Hunter, Second Assist. Sec. of State, to Mr. Wilson, consul at
Matamoras, Aug. 15, 1870, 57 MS. Inst. Consuls, 577.
“I have the honor to bring to your notice a remarkable communication by the governor-general of the island of Cuba to the consulgeneral of the United States under date of the 6th instant. Mr. Williams having, in execution of instructions telegraphed to him, made representations touching the prolonged confinement of certain American citizens without trial and in contravention of existing treaties and engagements between the United States and Spain, Gen. Martinez de Campos replied that consuls are not invested with diplomatic functions and, therefore, can not rightfully present official remonstrance in affairs of government, but may merely address themselves confidentially to the authorities for the purposes of inquiry in order to report to their government; and he adds that the custom of responding to such confidential inquiries can not be continued if the government of the United States should not become convinced of the correctness of his views.
“ The position so taken by Gen. Martinez de Campos has naturally occasioned this government much surprise. The right of consuls to intervene with the local authority for the protection of their countrymen from unlawful acts, violative of treaty or of the elementary principles of justice, is so generally admitted as to form an accepted doctrine of international law. More than this, it has been conventionally established by treaties. In the enjoyment of the most favored national right, stipulated in the existing treaty between the United States and Spain, the express provisions of the consular treaty of February 27, 1870, between Spain and Germany are to be invoked. The ninth article thereof provides that consuls-general and other consular officers shall have the right to address the authorities of their district in remonstrance against every infraction of the treaties or conventions existing between the two countries and against any abuse whatsoever of which their countrymen may complain. . Such correspondence is not and can not be diplomatic in any sense. Its object is to furnish a ready and convenient method of adjusting the questions at issue on the spot, thereby averting resort to those necessary diplomatic channels which the intercourse of sovereign powers provides.
“I address this note to you in the expectation that the direct relations known to exist between yourself and the superior authority in Cuba will enable you to set the governor-general right upon this important point, and that the necessity may not arise of carrying to Madrid the questions involved."
Mr. Olney, Sec. of State, to Mr. Dupuy de Lôme, Sept. 26, 1895, For. Rel.
1895, II. 1209. See Mr. Williams, consul-general at Ilavana, to Mr. Adee, No. 2586, Sept.
11, 1895, For. Rel. 1896, 777.
Knowing, as I do, the elevated view taken by General Martinez Campos of all questions,” his “exertions” that “foreigners may suffer as little as possible," and the fact “ that he maintains the best and most cordial relations with the head of the United States consular service in Cuba,” “I can assure the government of which your excellency forms a worthy part that, in writing to Mr. Williams in the sense in which he did, it was certainly not with the intention or wish that the United States should address him through me, as is customary between sovereigns, but to the end that, he being, as he knows that he is, a delegated authority, foreign consuls in addressing him officially in the exercise of a right acknowledged by international and conventional law, and which nobody denies, may not go so far as to ask for decisions, request declarations, or demand settlements which His Majesty's government alone is competent to adopt
"I am sure that what the governor-general of the island of Cuba has done was not denying a right, but endeavoring to prevent the abuse of it, which, it is true, has been unintentionally committed for a long time back." Mr. Dupuy de Lôme, Span, min., to Mr. Olney, Sec. of State, Oct. 1, 1895,
For. Rel. 1895, II. 1212.
“I note the
statement that, his [the governor-general's1 office being merely one of delegated authority, ‘ foreign consuls, in addressing him officially in the exercise of a right which you state to be acknowledged by international and conventional law, and which nobody denies, may not go so far as to ask for decisions, request declarations, or demand settlements which His Majesty's government alone is competent to adopt.'
“ This statement would seem to imply a limitation of the subjects upon which a consular representative may properly correspond with the local Spanish authority in Cuba. But neither is such limitation expressly confirmed by you, nor can it be fairly inferred either from the text of the treaty between Spain and Germany, in which I find the fullest conventional definition of the right, or from precedent and usage. The right of consuls 'to address the authorities of their district in remonstrance against every infraction of the treaties or conventions existing between the two countries and against whatever abuse may be complained of by their countrymen’ clearly includes initial representations upon those subjects. It may indeed happen that the precise form of remedy may have to be referred to His Majesty's government and that appropriate redress may be attainable only after diplpomatic negotiations between the two governments.
“ But such negotiations are the sequel of the original remonstrance, and are made necessary only when and because the local authorities show themselves lacking either in the will or the power to adequately deal with the grievance. This is clearly expressed in the concluding paragraph of article 9 of the Spanish-German treaty of February 22, 1870, which specifically authorizes consuls, in the absence of the diplomatic agent of their country, to conduct such further diplomatic discussion with the supreme government, thus clearly distinguishing between the incident in its incipient stage and the incident when it has passed that stage and become a subject of diplomatic treatment.
“ The communications of the consul-general to which his excellency the governor-general takes exception have been in each case made under the authority and direction of this Department in the interest of good relations and with the design of avoiding, if possible, that ulterior diplomatic correspondence which would necessarily ensue should any wrong against an American citizen in Cuba remain unredressed after due representation to the local authorities. It is, of course, true, as stated in my note of September 26, that the consulgeneral can not conduct a diplomatic discussion with the governorgeneral, since neither that officer nor the consul-general possesses the requisite powers. Nevertheless, though the subject treated of may ultimately become the theme of diplomatic negotiation, that circumstance can not deprive the consul of the clear right nor absolve him from the clear duty of initiating such inquiries and remonstrances as the interests intrusted to his keeping may from time to time require.”
Mr. Olney, Sec. of State, to Mr. Dupuy de Lôme, Spanish minister, Oct. 11,
1895, For. Rel. 1895, II. 1213. Mr. Taylor, United States minister at Madrid, telegraphed, Oct. 21, 1895,
that the minister of state was disposed to grant at once to consuls of the United States in ('uba all rights guaranteed to German consuls
under the treaty of 1870." (For. Rel. 1895, II. 1214.) * Mr. Olney's note to Mr. Dupuy de Lôme, of the 11th instant, answers
his communication in the sense indicated by the minister of state, and
Rel. 1895, II. 1214.)
Grande, No. 31, Dec. 7, 1895, 150 MS. Inst. Consuls, 368.
The consul-general of the United States at Havana having sought permission to ascertain and report upon the health and welfare of an American citizen confined in Cabanas fortress, the captain-general of Cuba, Gen. Weyler, replied that the prisoner was in good health, but that if the consul-general desired to make a personal examination he might visit him or any other American prisoner on giving a day's notice, so that the prisoner might be in the guardroom nearest the entrance to the fortress at the time of the visit.
For. Rel. 1896, 834.
Certain persons in New York having sent a letter and a draft for money to the consul-general of the United States at Havana for delivery to an American political prisoner in the Cubanas fortress, the consul-general transmitted the documents to the Department of State and recommended that they be returned to the senders with the suggestion that they be forwarded by another channel, since the consulate, unless otherwise directed, should not take charge of the prisoner's private correspondence. The action of the consul-general as to the letter was approved, but the draft was sent back to him with the instruction that he might, with the knowledge and assent of the authorities, deliver the proceeds of the draft, with a statement of the source from which it came. This was done with the ready assent of the acting governor-general of Cuba, who remarked that the application for the consent of the authorities was “the correct course in the matter."
For. Rel. 1896, 770–772.
In 1889 Mr. Williams, consular agent of the United States at Guanajuato, addressed an official letter to the Mexican federal judge at that place, asking, in the name of the United States consul-general at Mexico, that B. F. Davis, an American citizen, who had been “imprisoned since June 12th of last year without anything having been done, be given an immediate trial or be set at liberty.” The judge, considering this communication to be disrespectful, imposed on the consular agent a fine of ten dollars, to be paid within three days. The fine not having been paid within that time, Mexican officers entered the consular agent's office and compelled him to deliver up his watch, at the same time informing him that unless the fine should be paid the watch would be sold at public auction to defray the fine and cost. The fine subsequently was paid. The Department of State of the United States, while admitting that the tone of Mr. Williams's letter was “ somewhat peremptory and not wholly warranted by the relations that subsist between a consular agent of the United States and a Mexican federal judge,” thought that the proceedings against Mr. Williams “ were marked by a lack of consideration for the character and dignity of the official against whom they were directed;" that the consular agent, if his communication was considered disrespectful, should have been requested to withdraw it; and that if he refused to do so, and the circumstances were thought to warrant it, complaint should have been made to his government. The discussion of the case was discontinued in view of the fact that Mr. Williams vacated the office of consular agent soon after the incident in question. Mr. Adee, Act. Sec. of State, to Mr. Ryan, min. to Mexico, Sept. 2, 1889,
MS. Inst. Mexico, XXII. 443.