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court can entertain the question of the competency of his excuse for declining to comply with its invitation; but, where the government of the United States has fair grounds to question the good faith with which the consul avails himself of the provision of the convention which exempts him from compulsory process, it has two modes of redress and it can take either at its option. It can appeal to the consul's government to inquire into the case in this respect, and to deal with him as it shall find his conduct deserves; or it can revoke his exequatur."
Mr. Marcy, Sec. of State, to Mr. de Figanière, Portuguese chargé
d'affaires, March 27, 1855, MS. Notes to Portugal, VI. 145. See, also, Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Jan. 18,
1855, MS. Inst. France, XV. 249. By the last clause of Article II. here cited, it is provided that in case of
death, indisposition, or absence of cons'ılar officers, the consular secretaries and consular pupils attached to their offices shall be entitled to discharge ad interim the duties of their respective posts, and shall enjoy, while thus acting, the prerogatives granted to the incumbents. " It is manifest that under the clause just cited, in the absence of the consul, the person acting as such officer would be entitled to the same privileges and rights as the consul, and this is the construction which the Department thinks should be given to it." (Mr. Thomas, Assist. Sec. of State, to Mr. McCoy, March 26, 1856, 45 MS. Dom. Let. 171.)
The contention of Mr. Marcy in the case of M. Dillon, French consul at San Francisco, that the sixth amendment to the Constitution of the United States, which provides that an accused party shall have compulsory process for obtaining witnesses in his favor, should be considered as qualifying the general and absolute terms of the consular convention with France, “was not acquiesced in by the French government, which required their flag, when raised to the mastheads of certain of their men-of-war at San Francisco, to be saluted as a reparation for the alleged indignity to their consul.” It is therefore desirable that in any future consular convention no such oversight should be committed.
Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 18, 1872, MS. Inst. Hayti,
Under date of Feb. 16, 1899, Mr. Guenther, consul-general of the
United States at Frankfort on the Main, was served
with a subpæna from the royal court of that place Mr. Guenther.
to appear and give testimony in a pending suit against one Ludwig Bettag. The subpæna contained this clause: “ Witnesses who do not appear without sufficient excuse are to be sentenced, according to paragraph 50 of the penal code, to pay the costs occasioned by such nonappearance, also to a fine not to H. Doc. 551-vol 5—6
exceed 300 marks; and if this is not paid, to imprisonment not to exceed six weeks-producing them by arrest is also admissible.”
Mr. Guenther, in reply, sent to the court a note, indicating his readiness to testify if properly requested to do so, but protesting against being summoned under threats of fine and imprisonment and eventual arrest.
The Department of State, on receiving the correspondence, instructed the embassy at Berlin (1) that, as no exemption from summons was stipulated for in the consular convention of 1871, it could not be claimed unless it should be found that the consul-general was entitled to it under the most favored-nation clause, but (2) that, as by Article III. of the convention Mr. Guenther, not being a German subject, enjoyed “personal.immunity from arrest or imprisonment, except in the case of crime," the menace of fine, arrest, and imprisonment, not for any crime, not only appeared to be gratuitous and “ wanting in the respect due from one friendly government toward the consular officer of another," but, if carried into effect, would constitute a flagrant violation of the treaty. Continuing, the Department of State said:
“Article V. provides that the officers and dwellings of consuls missi, who are not citizens of the country of their residence, shall be at all times inviolable. The local authority shall not, except in the case of the pursuit for crime, under any pretext invade them.'
While Mr. Guenther's office and dwelling are inviolable, he is threatened with arrest and imprisonment outside, or by virtual imprisonment inside, his office and dwelling, if he fails to obey the process, either by arresting him outside of his dwelling and office or inside thereof; or, if it is not sought to arrest him outside, to virtually imprison him within by making it impossible for him to go out without being subject to arrest and imprisonment.
“ It appears, moreover, that the summons is addressed to him as consul-general of the United States, and he is, as such officer, required, in answer to question one, attached to the process, to give evidence, ' from papers to be shown,' whether · Bettag is an American citizen.' The papers referred to are evidently those belonging to the consular archives. This would seem to be violative of Article V., which provides that 'the consular archives shall be at all times inviolable, and under no pretense whatever shall the local authorities be allowed to examine the papers forming part of them.' While the papers are protected from seizure or examination, the thing prohibited is sought to be accomplished by compelling the consul to show them or to disclose their contents."
Mr. Hay, Sec. of State, to Mr. White, amb. to Germany, March 6, 1899,
For. Rel, 1899, 302.
In a dispatch of Feb. 28, 1899, Mr. Guenther reported that the royal court,
in reply to his protest, had sent him a polite letter requesting him to appear and give his testimony on “Feb. 28, 1899, between the hours of 9 to 12 a. m.," and stating that the summons was made out in the usual form by mistake. Mr. Guenther also said that he had " complied with the request and answered the questions propounded in court, where the officials verbally apologized and said that they had not been aware of the existence of the consular convention of
1871." (For. Rel. 1899, 305.) The Department of State expressed gratification with the satisfactory
termination of the incident." (For. Rel. 1899, 305.) The instruction of Mr. Hay to Mr. White, above quoted, enclosed a copy
of an instruction of July 31, 1894, to Mr. Mason, then consul-general of the United States at Frankfort on the Main, in relation to a summons sent him in a suit brought by Julius Teufel against Henry Nickel for defamation of character, to testify as to statements made to him by Nickel that Teufel had undervalued certain exported
articles. The Department of State then said: “ The information regarding which your testimony is desired was con
veyed by Mr. Nickel to you in your capacity of consul-general of the l'nited States, and as such officer you took action and communicated the statements to the Department, thereby making them a part
of the records of your consulate. “It is provided in Article V. of the treaty of 1871 with Germany that
the consular archives shall be at all times inviolable; and where communications are from their nature confidential, for the cognizance of the consul's government only, it is clear that consular officers
should not be called upon to testify regarding them. “ The Department, therefore, can not authorize you to testify in the case,
on the ground that whatever knowledge you may have is official and privileged, because concerning only your relation to your own gov
ernment. " It is also very probable that Germany has a treaty with France, or
with some other country, giving consular officers the privilege of declining to appear in courts as witnesses. In such event, the position now taken would be fortified by the provisions regarding privileges and immunities granted to the most favored nation con
tained in Article III. of the treaty of 1871 with Germany. "From the inclosed letter from the Treasury Department you will see
that the Secretary of the Treasury is of the opinion that your appear-
Mason, l'. S. consul, July 31, 18994, For. Rel. 1899, 304.)
officers shall not in any event be interfered with in the exercise
Inst. Germany, XVIII. 389, 403. Consuls, whether missi, salaried, feed, or engaged in business or not, are not as a general rule exempt from judicial process, but they can not be summoned to give evidence of matters of their consular business, nor to produce to the court any part of the consular archives.
Mr. Hill, Acting Sec. of State, to Mr. Hunter, min. to Guatemala, Jan. 9,
1901, For. Rel. 1900, 705.
March 27, 1899, Col. Francisco E. Torres, the “ delegate of the
executive power on the Atlantic coast” of NicaCase at Bluefields.
ragua, addressed to Mr. Clancy, consular agent of the United States at Bluefields, certain questions concerning the revolutionary uprising under General Reyes during the preceding month. The uprising had been suppressed, and Col. Torres was conducting a military court of inquiry. The questions addressed to Mr. Clancy related to his action in issuing at the beginning of the outbreak a warning to Americans to observe a strict neutrality, to his attitude and that of the commander of the U.S. S. Marietta toward the revolutionary authorities, and to the action of various Americans. Mr. Clancy refused to answer the questions without the permission of his official superiors.a
April 7, 1899, Mr. Sorsby, U. S. consul at San Juan del Norte, telegraphed to the Department of State: “ Martial law continues. Must Clancy appear before court of inquiry now sitting here and testify regarding Americans in late revolution and political events generally relating thereto? I request that Clancy's refusal to appear be approved."
“The Department has received a cablegram (copy inclosed) from our consul, W. S. Sorsby, asking whether our consular agent, M. J. Clancy, at Bluefields, ó must appear before the court of inquiry now sitting here and testify regarding Americans in the late revolution and political events generally relating thereto,' and asking whether his refusal to do so is approved.
“Article X. of the treaty of 1867 between the United States and Nicaragua provides that “the diplomatic agents and consuls of the United States in Nicaragua shall enjoy according to the strictest reciprocity whatever privileges, exemptions, and immunities are or may be granted in the Republic of Nicaragua to the diplomatic agents and consuls of the most favored nations.'
“ You will determine what immunities, exemptions, and privileges are accorded by Nicaragua by treaty with Spain, Great Britain, or any other nation, to the consuls of such nation; and whatever exemption, privilege, and immunity they are accorded you will claim for Mr. Clancy.
“As a general rule of international law it may be observed that in the absence of treaty stipulation consuls are not, as such and in general, entitled to all immunities which attach to a diplomatic repre
a For. Rel. 1899, 563, 564.
o For. Rel. 1899, 568.
sentative. The consular archives are, however, inviolable under all circumstances. They can neither be invaded nor searched, nor seized by the officers of justice or other authority; but the personal books and papers of the consul are not entitled to such immunity. He can not be required to divulge information which came to him in his official capacity, for that is the exclusive property of his government; but as to matters which come within his knowledge or observation in his mere capacity as an individual he is not privileged from testifying as a witness. If a consul should himself participate in the commission of crime or in setting on foot an insurrection, or should observe others doing so, against the government to which he is aceredited, he could not be shielded from testifying, according to the forms of the local law, as to the facts thus acquired and within his personal knowledge.
* On the one hand, he is entitled to enjoy all the privileges necessary to enable him to discharge the duties of his office; on the other hand, he is not to refuse to testify, under the cirucmstances and limitations above stated, simply because the facts to which he is required to testify might be of a political character, or simply because his testimony might have a tendency to implicate American citizens or others in the commission of unlawful acts."
Mr. Hay, Sec. of State, to Mr. Merry, min. to Vicaragua, April 17, 1899,
For. Rel. 1899, 566, 567-568.
all exemptions, privileges, and immunities accorded by Nicaragua by
If none such are accorded by treaty between Nicaragua and other foreign state, (lancy may testify touching facts which came to his knowledge in his merely personal and unofficial capacity, but not as to facts or communications obtained in his capacity as consular agent. If he so testifies, report to the Department copy of questions and answers."
(For. Rel. 1899, 568.) April 30, 1899, Mr. Merry wrote: “ The 'court-martial' continues taking
evidence daily, with closed doors." (For. Rel. 1899, 575, 576.) “ Respectfully requesting reference to your No. 217, dated April 17, I desire to state that before its receipt I had telegraphed from Managua to Mr. Sorsby, at Bluefields, supporting his decision as to refusal to testify before the Torres court-martial. Three days prior to my departure from Bluefields the dispatch reached me, when the matter had already been dropped by General Torres.
“Although aware that within the limitations explained in your instruction consular officers might be required to testify before the civil courts of the country to which they are accredited, I arrived at the conclusion that such evidence could not be properly given before a court-martial. The English vice-consul, taking the same ground, appeared, and after giving his name and address, refused to testify without the order of his superior, who has supported him. I was also