No. 289.
Mr. Cushing to Mr. Fish.

No. 1119.]

Sir: My No. 929 of April 24, 1876, reported to you the result of a meeting of the entire foreign diplomatic body at Madrid, in which it was resolved to make a common representation to the Spanish Government remonstrating against certain clauses of the existing code of procedure which, in terms, authorizes and requires the local magistrates to exact by force the testimony of any one of the foreign diplomatic agents in reference to questions which may be pending in a local court, and when his testimony may, in the estimation of such magistrate, be deemed material.

This provision of the local law had been peremptorily resisted by several members of the diplomatic body (including my immediate predecessor), who each had taken the stand in this matter of repelling force by force, assuming that no local law could impair the diplomatic immunities which the law of nations accorded to foreign ministers, such privileges being the right, not of themselves, but of their respective governments.

We unanimously, in the meeting above mentioned, concurred in this doctrine, and as the result thereof Cardinal Simeoni, as our doyen, addressed a note on the subject to the minister of state, who admitted our premises, and gave assurance that the clauses of law in question should be repealed or properly modified in a general revision which the code of procedure was undergoing. To-day Mr. Layard called on me to say that, as acting doyen of the diplomatic corps, he had prepared a note calling the attention of the minister of state anew to the subject, which had been approved by my colleagues, and requesting my concurrence.

I confess feeling somewhat embarrassed on the subject in view of your instruction No. 594 of July 20, 1876; for if local law is to be regarded as overriding a treaty, a fortiori it may override a mere doctrine of public jurisprudence, and it would not seem that the United States have any special right to amend treaties by act of Congress.

On reperusal of that dispatch, however, while it still seems to me to attribute to certain nisi prius decisions and obiter dicta, especially in the matter of Indian treaties, a degree of legal authority which would not be recognized as of much force on argument of the precise question in the Supreme Court, some of those nisi prius opinions having indeed been expressly overruled there; still, the concluding sentence of it explicitly declares that the rights of foreign nations remain intact notwithstanding such contradictory internal legislation.

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Furthermore, it seemed to me that, as you had not disapproved the initiatory step taken in the present matter, you would not disapprove the second and consequent one, and I, therefore, with some hesitation gave my assent to the act of Mr. Layard.

Meanwhile my attention has again been called to the point by what has occurred in discussing the “royal order” with Mr. Calderon y Collantes. On my observing incidentally that it would not be convenient that the right accorded to us by the proposed “order” should be subject to the law of April, 1821, or to any other law which might be substituted for it, he replied, “Of course not; for the arrangement we are to make will be in the nature of an international agreement, and such agreements are never affected by any local statutes, whether of anterior or posterior date.”

Such, as you already know, bad always been my own theory of the relation between treaties and local statutes or laws; and in reference to questions occurring in Spain, when the point is of practical importance, the same theory has been assumed as indisputable by all my colleagues at Madrid. I recur to it only in solicitude to avoid overstepping instruction in reference to the same question, now become a serious one in at least two matters of controversy in Spain, to give way on which would seriously prejudice the interests of the United States.

I have, &c.,

C. CUSHING.