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often in necessary correspondence with their ministers, through whom alone they can regularly address the supreme government of the country wherein they reside, and they are always supposed to be under their directions. You will accordingly maintain such correspondence with the consuls of the United States in France as you shall think conducive to the public interest; and in case of any vacancy in their offices, which may require a temporary appointment of a person to perform the duties of the consulate, you are authorized, with the consent of the government to which you are accredited, to make it, giving immediate notice of it to this Department.”
Mr. Adams, Sec. of State, to Mr. Brown, min. to France, Dec. 24, 1823,
MS. Inst. U. States Ministers, X. 152.
In August, 1861, a Mr. Mure, of Charleston, South Carolina, was arrested in New York when about to embark for England, and was sent to Fort Lafayette on a charge of being a bearer of despatches from the Confederate authorities. Among the things found in his possession there was a sealed bag addressed to the British foreign office with labels signed and sealed by Mr. Bunch, British consul at Charleston. The bag was sent tò Washington, where it was delivered to Mr. Seward. Mr. Seward sent it on by special messenger, who was instructed to deliver it to Mr. Adams, American minister at London, who was in turn to deliver it to its address in the condition in which he would receive it. Mr. Seward stated that he had not entertained the idea of breaking the seals, and he instructed Mr. Adams to express regret that circumstances had rendered necessary the arrest and detention of Mr. Mure, as well as the brief interruption of the correspondence of the British consul. Mr. Adams was also directed to say that, if the bag should be found to contain any papers of a treasonable character against the United States, it was hoped that they would be delivered up to him for the use of his government, and that the British consul at Charleston, if shown to be privy to their transmission, should be made to feel the severe displeasure of his government. September 9, 1861, Earl Russell stated that, on opening the bag at the foreign office, there did not appear to be any ground for suspicion that it had been improperly used. Earl Russell added that Her Majesty's government were advised that the suspension of the conveyance by post of letters between British subjects in the Northern and the Southern States was a contravention of the treaty on the subject between the two governments; and that Mr. Bunch had endeavored to palliate the evil by. inclosing some private letters in his consular bag. Mr. Seward, writing to Mr. Adams, on October 22, 1861, took exception to Mr. Bunch's “substitution of his consular bag and official seal for the mail bag and mail locks of the United States, and of his own mail carrier for the mail carriers of the United States," and declared that, although in the particular case the proceeding was practically harmless and was not likely to be repeated, it was “not defensible on any ground of treaty or international law.” Mr. Seward added that the interruption of the post, while it worked literally a nonfulfillment of a treaty stipulation, was due to the sudden violence of an insurrection, and that the suppression of correspondence between parties in the insurgent territory with persons in foreign countries was a measure essential to the suppression of the insurrection itself; and that he felt assured that the magnanimity of the British government might be relied on not to complain at one and the same time of a breach by the United States of the international postal treaty under such circumstances, and of the resort by the government to a measure which was indispensable to complete its ability to fulfill it.
Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 63, Aug. 17,
1861, Dip. Cor. 1861, 114; Mr. Adams to Earl Russell, Sept. 3, 1861, id. 134; Earl Russell to Mr. Adams, Sept. 9, 1861, id. 139; Mr. Seward to Mr. Adams, No. 108, Oct. 22, 1861, id. 147.
“ With reference to the permission given to the foreign representatives to correspond with their consuls in the ports of the insurgent States by means of vessels of war entering their ports, I have to remark that circumstances have come to the knowledge of this Department which render it advisable that this permission shall hereafter be restricted to correspondence of the consuls of those powers only who, by the regulations of their respective governments, are not allowed to engage in commerce. I will consequently thank you to request the commander of any British vessel who may visit the ports adverted to to abstain from carrying letters for consuls who may be engaged in trade."
Mr. F. W. Seward, Act. Sec. of State, to Lord Lyons, British min., Feb.
6, 1862, Dip. Cor. 1862, 253. In a note to Lord Lyons of October 18, 1861, Mr. Seward stated that
official correspondence of other powers with the agents of those powers in blockaded ports, as well as that of British authorities with their agents, might be sent by British vessels of war." (Dip. Cor. 1861, 174.)
In respect to the censorship of foreign newspapers and periodicals addressed to American consular officers in Russia, the United States will claim privileges equal to those which may be accorded to similar matter intended for the consular officers of other governments.
Mr. Hunter, Act. Sec. of State, to Mr. Hoffman, chargé, No. 73, Oct. 1,
1879, MS. Inst. Russia, XVI. 100; Mr. Evarts, Sec. of State, to Mr. Hoffman, No. 101, April 2, 1880, id. 127; Mr. Evarts to Mr. Foster, min. to Russia, June 4, 1880, id. 138; Mr. Olney, Sec. of State, to Mr. Peirce, chargé, No. 346, Dec. 15, 1896, MS. Inst. Russia, XVII.
524. H. Dọc, 551 vol 5- 7
** I have read with interest Señor Gallegos' explanation of the manner in which his government regards the facts upon which are based the charge that Mr. Myers [the U. S. consul at San Salvador) was prevented from communicating with the American legation, and that of having refused him a passport to leave the Republic unless upon the condition of withdrawing his exequatur at the same time.
“ He says that 'hardly had the capital been recaptured, although the frontier was in part uncovered, when Mr. Meyers, without giving due credit to what had occurred, proposed to forward the telegram of which your excellency inclosed me a copy' and that' without refusing to Mr. Myers permission to inform the Department of State at Washington of what had occurred, he (the secretary-general) limited himself to simply proposing that the form of his telegram should be modified in the terms known to your excellency.' He concludes, therefore, that Mr. Myers' was not prevented from communicating with his government in any manner whatever, and although there was exercised a species of censorship in respect to the telegram which he proposed to send to Mr. Blaine on the 2d day of August, 1890, for the excellent reason I have mentioned, still that exceptional measure had a legitimate basis in the abnormal condition of affairs then existing, the Republic being in a state of siege, a situation which suspends the guaranty of the inviolability of correspondence. To this reason might be added still another—that the telegram alluded to may not in strictness be considered as an official act or report exclusively relating to the exercise of consular functions, the only case where officials of that class are to be recognized as independent of the state in whose territory they reside according to the treaties."
" Whether the act of the Salvadorean government be called prevention of communication or mere censorship, it resulted, in fact, in preventing Mr. Meyers from sending the telegram to his government which he desired to send. It does not relieve the matter that the government of Salvador proposed another and different telegram which it was willing to permit to be sent. It was competent for the Salvadorean government itself to communicate to this government such a report of the facts in question as may have seemed to it proper, but not for it to dictate to an official what he should report. The government does not recognize the pertinency of any principles which may be thought to be applicable to a state of siege or martial law. At the time of the occurrences in question the city of San Salvador was in the undisputed possession of the government forces, and there was nothing in the situation warranting interference with the right of free communication to which Mr. Myers was entitled by treaty and the principles of international law. Neither can this government conceive of any communication between its consul and itself more intimately associated with his official duties than a report that the consulate and its archives had been destroyed and the performance of his official functions interrupted. Mr. Myers would have been most derelict in his duty if he had not attempted to communicate that fact. Such a communicaton was privileged, and in the opinion of this government especially within the purview of the second section of article 35 of the treaty of 1870, which provides that · Consuls in all that exclusively concerns the exercise of their functions shall be independent of the state in whose territory they reside.'
“Señor Gallegos, for similar reasons, justifies the course of his government in refusing Mr. Myers a passport to leave the country except upon the condition of the withdrawal of his exequatur. He finds also a further justification therefor in the fact that his “ departure from the country had for its evident object, as your excellency recognizes, to nullify the action taken by the government respecting the telegram which it was proposed to send.'
“Señor Gallegos' explanation strengthens my conviction of the correctness of the language which I used with respect to this phase of the case in my No. 21 of November 20 last, and which I now repeat:
**Article 32 of the treaty of 1870 is plain with respect to the right of the government of Salvador to withdraw Mr. Myers' exequatur upon reasonable grounds, but to refuse to give him a pass to leave the country except on that condition, while making no objection to his continuing to exercise his consular functions if he would remain, was a species of duress, the gravity of which is increased by the fact that his avowed purpose in temporarily leaving was to communicate with his government. It would seem to have been an attempt to do indirectly what Mr. Myers charges was also done directly, viz, to prevent his communicating with his superiors.'
** This government, therefore, renews its protest, as it is in duty bound to do, against the interference of the government of Salvador, both directly and indirectly, with Mr. Myers' official communications."
Mr. Blaine, Sec. of State, to Mr. Shannon, min. to Cent. Am., April 6,
1892, For. Rel. 1892, 34, 36–37. For previous correspondence as to the case of Mr. Myers, see For. Rel.
1890, 105, 115, 118; and supra, $ 705.
With reference to the action of the Haytian authorities in seizing a letter which was addressed to Mr. Rouzier,consular agent of the United States at Jeremie, and which was sent from Kingston, Jamaica, in the private luggage of a passenger, the Department of State observed that it did not appear, on the facts before it, whether the seized communication was addressed to Mr. Rouzier as consular agent, and added : “ The general rule is that immunity of consular correspondence extends only to such communications as may be addressed to an officer in the line of his official business, especially when they are conveyed by private hands outside the mails. A consul's immunities do not extend
to his personal transactions in the country of his residence outside of his official duties and functions. The inviolability of the regular inails is not now in question. Should any letter posted in Hayti, or in a foreign place, and addressed to a consular representative of the United States by his official title, be seized and opened in transit by the local authorities, just cause of complaint and remonstrance would arise. In this instance interference appears to have been rather with the personal luggage of an incoming passenger than with the official correspondence of the consular agency, and this circumstance might prevent remonstrance being pushed as far as might otherwise be due. You may, however, represent to the authorities that a personal letter addressed to the United States consular agent at Jeremie has been so seized in transit, and you may ask an explanation and disavowal of the act and the delivery of the letter to the person to whom it was addressed.”
Mr. Uhl, Act. Sec. of State, to Mr. Terres, No. 113, Dip. series, Oct. 23,
1895, MS. Inst. Hayti, III. 463.
In 1896 the Department of State took the ground that the testimony or sworn statement of an American citizen under arrest in Cuba, taken by an American consul for the use of the government of the United States, was in the nature of a privileged communication between the government of the United States and its agent, and that the demand of the Spanish authorities that the consul must in such case furnish a copy of the prisoner's affidavit to the military commander or local magistrate was " distinctly discourteous under international practice.
Mr Rockhill, Assist. Sec. of State, to Mr. Lee, consul gen, at Havana, No.
144, Oct. 24, 1896, 154 MS. Inst. Consuls, 228.
February 17, 1897, Mr. Olney, Secretary of State, cabled to Mr. Taylor, minister to Spain, that the United States consul at Sagua la Grande, Cuba, reported that on the 5th of February the mayor refused to permit him to telegraph in cipher on official business to the consulgeneral, and subsequently refused to transmit a telegram in Spanish or English to the Department of State reporting the interference with communication with the consul-general. Mr. Olney said: “Such inhibition of official communications of consuls of the United States with their superior or with this Department requires instant correction and rebuke." On the 20th of February Mr. Taylor replied that the minister for foreign affairs had just received a telegram from Cuba stating that the mayor of Sagua la Grande “acted through mistake and that specific instructions [had been given to prevent such occurrence in future."
For. Rel. 1897, 501-502.