Mr. Schlözer to Mr. Evarts.
Washington, March 2, 1879. (Received March 5.)
Esteemed Mr. Secretary of State: On the 5th ultimo, Carl Weinrebe, a cook on board of the Bremen Lloyd steamer Mosel, was arrested [Page 405] on a charge of smuggling, by United States Marshal MacDonald, at Jersey City, in pursuance of a warrant issued by United States Commissioner Whitehead, of Newark, N. J. Previously to the arrest, the cabin and effects of Weinrebe were searched by Fr. Cochen, inspector of customs of the port of New York.
Article XII, paragraphs 2 and 3, of the consular convention concluded between Germany and the United States, in the year 1872, stipulates as follows:
The judicial authorities and custom-house officials shall in no case proceed to the examination or search of merchant vessels without having given previous notice to the consular officers of the-nation to which the said vessels belong, in order to enable the said consular officers to be present.
They shall also give due notice to the said consular officers in order to enable them to be present at any depositions or statements to be made in courts of law, or before local magistrates, by officers or persons belonging to the crew, thus to prevent errors or false interpretations which might impede the correct administration of justice. The notice to consuls, vice-consuls, or consular agents shall name the hour fixed for such proceedings. Upon the non-appearance of the said officers or their representatives, the case may be proceeded with in their absence.
Such notice, however, was not given to the imperial consul-general at New York in this instance, either by Mr. Whitehead or Mr. Cochen.
The imperial consul-general, on receiving information of the occurrence, caused a protest to be made against the proceeding, through Messrs. Salomon & Burke, attorneys-at-law, on the ground that he had not been duly notified.
The case was tried before United States Commissioner Whitehead, at Newark, on the 6th and 7th ultimo.
The ground was taken by the United States district attorney that no notification of the imperial consul-general was necessary, inasmuch as the search of merchant vessels, which is mentioned in Article XII, does not refer to cases of this kind, since the custom-house officers in this case had not searched the vessel, but merely the personal effects of the accused, and since the treaty, moreover, requires no previous notice when an arrest is contemplated.
The United States commissioner, in his decision, shared the vie w taken by the district attorney.
I am unable to think as did the United States commissioner and the district attorney, for Article XII says, “the judicial authorities shall in no case proceed to the examination or search of merchant vessels without having given, previous notice to the consular officers,” and the question whether the entire vessel or only a cabin is to be searched is not, in my opinion, to be considered in interpreting this stipulation.
I should be very much obliged to you, esteemed Mr. Secretary of State, if you would have the kindness to give me your opinion in relation to this question, in case something similar should occur in future, and to state whether you think that the imperial consul-general should in this instance have been notified.
Accept, esteemed sir, a renewed assurance of my most distinguished consideration.
To the Hon. William M. Evarts,
&c., &c., &c.