Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888
Mr. Tree to
Brussels , December 13, 1886. (Received December 27.)
Sir: I have the honor to inform you that I have sent you by this mail, under separate cover as printed matter, three copies of the Bulletin Officiel de l’État Indépendant du Congo, No. 11, 2d année, 1886.
The instructions to the agents of the State, with reference to their relations with foreign consuls (page 195 et seq.), appear to be the most important document, so far as foreign countries are concerned, which this number contains.
I have, etc.,
Relations with the foreign consuls.—Instructions for the agents of the State.
The consul can not enter on his functions until after having received the exequatur of the sovereign king.
Nevertheless, the administrator-general can authorize an agent to exercise provisionally the consular functions.
- When he has received special instructions to that effect from the department of foreign affairs.
- When the agent has been designated by a consul regularly nominated and recognized as manager ad interim of the affairs of the post.
When a consul has been admitted to the exercise of his functions in virtue either of the sovereign exequatur or of a provisional authority, the administrator-general of the Congo notifies the magistracy and commissioners of the district in which the agent has authority to protect the interests of his compatriots. Before this communication, no agent or functionary of the State can hold official relations with the consul as such. The notice given to the judicial authorities will determine clearly the character of the consul by specifying if he is to be considered as a full consul or a trading consul.
The administrator-general of the Congo alone can decide upon the complaints which are addressed by the consuls to the local authorities. Consequently, saving the exceptions resulting from the present instructions, the agents of the State should, each time that they take cognizance of a request or a claim, merely give a certificate to the consuls and immediately inform the administrator-general.
When the claim assumes a political character, and bears upon any matter on which the sentiments of the Government are unknown to him, the administrator-general will abstain, as much as possible, from taking any action before referring it to the Government at Brussels.[Page 27]
International usage authorizes consuls to place the coat-of-arms of their nation outside their offices and to raise their national flag.
Although it is a privilege accorded to consuls alone, it is not necessary at the present time to suppress the flag-staffs of commercial houses and factories. Until the new order these will not he raised unless the consul himself makes the demand.
The authorities can not on any pretext enter the official building if the incumbent is a full consul, subject of the country which nominated him, and not trading. They can, however, do so with the consent of the director of justice, if he had granted asylum to persons threatened with criminal prosecution. If the consul applies himself to business having the object of money his office shall not be considered inviolable. In this case the authorities shall always avoid making any search in his official papers, provided that these are kept separately.
Except in a case of flagrante delicto, no search shall be made except in the presence and with the formal decree of the judge. (Article 5 of the ordinance of April 1, 1886, on the public ministry.)
It must be said that if a consul, even a merchant, comes to be nominated a member of the international commission of the navigation of the Congo he will be absolutely inviolable in the exercise of the latter functions, as well as his offices. (General act of the Conference of Berlin, Article 18.)
Not enjoying the privileges of exterritoriality, consuls are subject to the jurisdiction of the country where they find themselves. They may then, in a civil and commercial matter, be summoned before the tribunals of the Congo, and these shall be in respect to them territorially competent, since the consuls have their residence in the State. (Ordinance No. 18 on the manner of proceeding.) They can be restrained of their liberty and their goods may be seized, with the reservation of what is said in No. 3 relative to the offices. Subject to penal proscriptions like all other foreigners, consuls will be, like them, prosecuted and sentenced. It is expedient always to treat them with the regard due their official character. They can not be arrested, except in case of absolute necessity, and the magistrates will use, concerning them, all the consideration compatible with the proper administration of justice.
If a consul be under preliminary a rest, the confirmative ordinance which the judge should issue within three days, and confirm every fifteen days, ought to be submitted to the director of justice, who shall decide if it is necessary to continue the detention. (See the ordinance on the public ministry.)
Consuls have the right to see to the maintenance of internal order on board the merchant vessels of their nation and, to that effect, to take disciplinary measures and to take such proceedings as they judge necessary. They take cognizance of all differences which have arisen, at sea or in port, between the captain, officers, and then of the ship’s company, for the execution of the obligations which bind them reciprocally or for any other cause. By differences must be understood not only civil contests which arise between the aforesaid persons, but also infractions committed aboard among the crew.
The local authorities will abstain from interfering unless they are required in writing by the consul or in case of disorders in which are found involved persons not forming part of the crew, or which are of a nature to compromise the public tranquillity on land or in port. In these cases it is the officers of public ministry whose functions naturally designate them to interfere; they will address a circumstantial report on the affair to the director of justice.
When consuls judge it necessary to cause the arrest and detention, otherwise than on board a vessel, of a person inscribed on the crew list, they must have the support of the local authorities. It must be noticed that according to’ the spirit of article 9 of the ordinance of April 1, 1888, on the public ministry, the judge alone can, in the case, order the detention. In a case where a confirmative ordinance should be issued by the judge, this shall be submitted to the director of justice, who will decide if it is necessary to continue the detention. The expenses of this imprisonment will be chargeable to the consuls; they shall be computed, by a tariff to be fixed by the administrator-general of the Congo.[Page 28]
If a prisoner over whom a consul has jurisdiction escapes from a ship he can only be arrested by the authorities of the country, to whom the consul must apply. The officers of the public ministry will proceed to the search and arrest.
In case of the decease of a subject of his country, the consul may take, concurrently with the local authorities, all measures necessary to protect the interests of the heirs. In case of hinderance, or the absence of the heirs or testamentary executors, he shall be invited to be present, the case occurring, at the affixing of the seals, the making of the inventory, and to co-operate in the administration of the estate.
Within the jurisdiction of the tribunal of first instance of the Lower Congo, all measures relative to letters of administration will be instituted by the officers of public ministry, either with the consent of the consul, as mentioned above, or alone if there is no consul, or if the succession is open where no consul resides, and if the latter does not intervene.
In order that the public ministry may act to this end it will be expedient that the civil officers of the State inform it as far as possible of the decease of foreigners leaving no heirs in the Congo.
Outside of the jurisdiction of this tribunal the local authority may find itself obliged to take alone all the measures for the preservation and administration of the estate.
The personal property forming the estate may be remitted by direction of the administrator-general to the consul of the country to which the decedent belonged; the division of the estate in such case being effected according to the laws of this country. The administrator-general is forbidden to authorize the remission of the estate to the consul, if the same appears to him likely to be contested, or if it were subject to an execution, instituted in conformity to Title III of the ordinance on the civil and commercial procedure.
It is moreover understood that in case contests shall arise they shall be decided exclusively by the tribunals of the State.
If the estate includes landed property situated in the State, the transfer shall take place under the legal provisions upon real estate. The laws of nations submit real estate, as concerns the division of estates, to the laws of the country where it is situated. Should the State have on this point no legislation of its own, the heirs may, in the absence of any will, invoke in support of their rights the laws of the country of the decedent.
It is therefore expedient that the holder of land titles, if he finds himself confronted with conflicting claims arising from transfer occasioned by death, should seek the advice of the competent consul.
The said agents will have the right to receive, conformably to the laws and regulation of their country, in their offices or bureaus, all agreements made between citizens of their own country and the citizens or other inhabitants of the State, and even all agreements of the latter, provided that these have reference to property situated or to business in the territory of the nation to which the consul belongs, or the consular agent before whom they shall be made.
Copies of the said agreements and the official documents of all kinds, either in original or copy or translation, duly legalized by consuls or other consular agents and furnished with their official seals, shall be admitted as evidence before the tribunals of the state, provided they have been legalized by the director of justice.
When the consul asks the arrest of a criminal having taken refuge in the territory of the state the demand can be instituted in virtue of Article 4 of the decree on extradition. Still the individual can not be extradited, except by authority of the central government or in virtue of a convention with the state making the demand.
The competent authority can not receive commissions rogatory addressed to them by consuls, unless they are in virtue of a convention. (Article 8 of the decree on extradition.)
Consuls or other consular agents are alone authorized to direct all operations relative to the salvage of vessels of their respective nations stranded or shipwrecked on the coasts of the State.
The authorities of the State can, besides, interfere for the maintenance of order, to guarantee the interests of the salvors if they are foreign to the shipwrecked crews, and to secure the execution of the provisions to be observed for the entry and clearance of the goods saved.[Page 29]
The consul is not exempt from the payment of taxes of whatever nature, nor any public duties, such as that of assessor.
The right to issue bills of health is expressly reserved to the territorial authorities.
The authorities of the Congo will lend to consuls their intervention to convey to those interested the judicial and administrative acts sent to consuls by their Government and intended for foreigners established in the Congo.