Mr. Townsend to Mr.
Gresham.
[Extract.]
United
States Legation,
Vienna
,
August 1,
1894
. (Received August 24.)
No. 86½.]
Sir: I have the honor to transmit herewith for
your information the inclosed copies of correspondence relating to the
claim of one Ernst Oechsle against the late U. S. consular agent,
William Dunham, and the refusal of the present consular agent, Mr.
Schlessing, to permit the officers of the district court at Haida to
seize articles claimed to be the personal property of the said Mr.
Dunham.
You will observe that the present consular agent, Mr. Schlessing, based
his refusal to allow the articles in question to be seized upon the
mistaken idea that they were to be held as the property of the U. S.
Government to cover a claim which the latter had against Mr. Dunham,
notwithstanding the consul-general of the United States at Vienna wrote
to the U. S. consul at Reichenberg under date of January 2, 1894,
informing him that the articles in question were the personal property
of said William Dunham, and requesting him to direct Mr. Schlessing to
deliver the articles to the officers of the imperial and royal court at
[Page 28] Haida. After a thorough
examination of all the correspondence which passed between the
Department of State, the consul-general in Vienna, the U. S. consul in
Reichenberg, and the U. S. consular agent at Haida, much of which has
not been inclosed as it is simply a repetition of the facts as set forth
in the correspondence herewith submitted, I directed the consular agent
at Haida to deliver the articles in question to the officers of the
court at that place, and I have his reply to the effect that this has
been done.
I have, etc.,
Lawrence Townsend,
Chargé d’Affaires.
[Inclosure 1 in No.
86¼.—Translation.]
Count Welsersheimb to Mr. Townsend.
Vienna
,
April 28,
1894
.
Sir: In September, 1893, the former
consular agent of the United States at Haida, Mr. William L. Dunham,
left his post without settling a number of debts which he had
contracted.
One of his creditors, Ernst Oechsle, brought suit against him for
payment of florins 478.43, and received judgment that some articles,
left behind by the debtor, should be turned over to him by way of
execution.
The present consular agent of the United States at Haida, Mr.
Schlessing, objects to this execution, claiming exterritorial rights
for his office, and saying that the articles left behind by Mr.
Dunham were property of the United States. In case they were not
consular property, he would, on instructions from his superiors,
turn over the articles to the court.
In the correspondence which thereupon followed between the court at
Haida and the consul-general in Vienna, the latter wrote under date
January 2, 1894, that of the objects under execution, an iron safe
and a wooden railing, were persoual property of Mr. Dunham, and that
Mr. Schlessing would be instructed to turn over these articles to
the court.
Nevertheless the latter on January 17, 1894, refused again the
attempted execution, producing a letter from the consul-general at
Vienna, dated January 10, 1894, which he translated to the officers
of the court, to the effect that the consul-general approved his
actions in the matter and that he held that the things should not be
delivered to the court.
Upon renewed written demand to Mr. Schlessing by the court for
delivery of the articles, the former replied on January 30, last,
that he could not allow the things to leave the office.
The matter having reached this point, it was submitted to the
ministry of justice and by the latter to the foreign office, in
order to bring light into the case and to bring pressure to bear
upon the consular agent at Haida to give up the position he holds,
as it appears entirely unjustified.
Principles of international law between the United States and Austria
and the consular convention of July 11, 1870, do not grant to
consular officers exterritorial rights and the privileges of
immunity connected therewith. Article V of the treaty grants the
immunity of the archives only and secures the papers against search
and seizure, but does not extend to objects in the rooms or in the
office of the consular officer.
The court at Haida was therefore fully authorized to order the
execution, especially as the letter from the consul-general of
January 2, 1894, pointed out these two objects as not being property
of the United States, and the resistance made by Mr. Schlessing to
the action of the court and to the subsequent demand to deliver the
articles, is therefore unjustifiable.
If the court at Haida has so far shown great moderation in view of
the official position of Mr. Schlessing, and has refrained from
applying measures of coercion, it is to be expected that Mr.
Schlessing, as soon as he has been fully convinced of the true state
of the case, will allow the matter to take its course, and thereby
avoid the necessity of further actions to be taken by the court to
secure its rights.
To this end the ministry of foreign affairs has the honor of
requesting the kind intervention of the honorable chargé d’affaires
ad interim, Mr. Townsend, and to beg that the matter above referred
to be investigated by him, the necessary dispositions be made and
that the result be communicated to this office.
The undersigned avails himself, etc.,
Welsersheimb,
For the Minister of Foreign
Affairs.
[Page 29]
[Inclosure 2 in No.
86½.]
Mr. Townsend to
Mr. Schlessing.
United States Legation,
Vienna
,
May 1,
1894
.
Sir: Will you kindly inform me, as soon as
possible, as to the nature of the articles which the court at Haida
claims to be the property of the late consular agent, Mr. William L.
Dunham. It is said that they consist of an iron safe and a wooden
railing. Is this true? Are there any other articles at the agency
which are the personal property of the said William L. Dunham?
The ministry of justice of Austria-Hungary, through the ministry of
foreign affairs, have taken this matter in hand, and have made an
international question of it. They claim “that the principles of
international law and of the consular convention of 1870 between
Austria-Hungary and the United States do not grant to consular
officers exterritorial rights and the privileges of immunity
connected therewith. Article V grants the immunity only of the
archives, and secures the papers against search and seizure, but
does not extend to objects in the rooms or in the office of the
consular officer.” The court at Haida was therefore fully entitled
to order the execution, especially as the letter from the
consul-general at Vienna, of January 2, 1894, pointed out the two
objects above referred to as not being the property of the United
States, and “the resistance made by Mr. Schlessing to the action of
the court, and to the subsequent demand to deliver the articles, is
unjustifiable.”
The ministry of foreign affairs further states that, in view of your
official position, the court has shown great moderation in pushing
its just claim, and has, until now, desisted from applying measures
of coercion.
I see from copies of correspondence on the subject in the
consul-general’s office here that it has been admitted that the iron
safe and wooden railings are the property of said William L. Dunham,
and further, from dispatch No. 27, from the State Department to. Mr.
Judd, dated December 15, 1893, that “Mr. Dunham’s creditors should
be allowed to issue execution against any personal property left by
him at the agency.”
In view of these facts, I am at a loss to understand upon what
grounds you still refuse to submit to the action of the
Austro-Hungarian district court at Haida.
Awaiting further detailed information on the subject before
presenting the claim of the ministry of foreign affairs of
Austria-Hungary to the authorities at Washington,
I remain, etc.,
Lawrence Townsend,
Chargé d’Affaires.
[Inclosure 3 in No.
86½.]
Mr. Townsend to
Mr. Schlessing.
United States Legation,
Vienna
,
May 29,
1894
.
Sir: After a thorough examination of the
copies of the correspondence relating to the claim of the court at
Haida against Mr. Dunham, sent to me by you, and also those on file
at the consulate-general in Vienna, I find your action in refusing
to deliver the iron safe and wooden railing, which are undoubtedly
the personal property of Mr. Dunham, to the authorities at Haida,
absolutely unjustifiable. You will therefore, immediately upon
receipt of this order, deliver these articles to the authorities of
the court at Haida, to satisfy any just claims against Mr. Dunham.
The ministry of foreign affairs of Austria-Hungary has been informed
of this decision and will no doubt communicate the fact to the
authorities at Haida.
I remain, etc.,
[Inclosure 4 in No.
86½.]
Mr. Townsend to
Count Kalnoky.
United States Legation,
Vienna
,
May 30,
1894
.
Your Excellency: In reply to the esteemed
note from the imperial and royal ministry of foreign affairs of date
April 28, 1894, requesting that the case of Mr. Ernst Oechsle and
the imperial and royal court at Haida against Mr. Dunham, late U. S.
consular agent, and Mr. Schlessing, present U. S. consular agent at
Haida, be investigated by this legation, I beg leave to say that
immediately upon receipt of the above-mentioned note from the
imperial and royal ministry of foreign affairs, I [Page 30] put myself in communication with
the parties in question, and have now before me copies of the entire
correspondence between the Department of State at Washington, the
consul-general of the United States at Vienna, the consul at
Reichenberg, the consular agent at Haida, and the imperial and royal
court at Haida, relating thereto. It seems that the consular agent
at Haida, Mr. Schlessing, acted upon the authority and at the
request of his superiors in refusing to permit the imperial and
royal court at Haida to seize the iron safe and wooden railing in
question; because, although they were originally the personal
property of the late consular agent, Mr. Dunham, Mr. Schlessing was
ordered to hold them as government property to cover a prior claim
of the U. S. Government against Mr. Dunham for certain Government
funds illegally retained by him. The U. S. consul-general at Vienna
was not aware of this fact when, on January 2, 1894, he wrote to Mr.
Schlessing and laid down the principle that any personal property
left at the office of the consular agent at Haida by Mr. Dunham was
subject to seizure for debts contracted by him. I now learn that the
U. S. Government has no further claim against Mr. Dunham, said claim
evidently having been withdrawn or covered by his bond to the
Government so that the above-mentioned articles, viz, the iron safe
and wooden railing are the personal property of the late consular
agent, Mr. Dunham, and I have instructed the present consular agent,
Mr. Schlessing, that he is henceforth to consider these articles as
the personal property of Mr. Dunham, and therefore subject to
seizure to satisfy any just claims against the latter.
I take, etc.,
