Mr. Olney to Mr. Dupuy de Lôme.

No. 44.]

Sir: I have the honor to acknowledge the receipt of your note of the 1st instant, in reply to mine of September 26, relative to the powers of United States consular representatives in Cuba with regard to correspondence with the local authorities.

I am pleased to receive your assurances that the efforts of the Governor-General, as the superior authority of the Island, in behalf of foreigners and their interests are aided by the cordial relations existing between him and the United States consul-general in Havana. I also note the further statement that, his office being merely one of delegated authority, “foreign consuls, in addressing him officially in the exercise of a right which you state to be acknowledged by international and conventional law, and which nobody denies, may not go so far as to ask for decisions, request declarations, or demand settlements which His Majesty’s Government alone is competent to adopt.”

This statement would seem to imply a limitation of the subjects upon which a consular representative may properly correspond with the local Spanish authority in Cuba. But neither is such limitation expressly confirmed by you, nor can it be fairly inferred either from the text of the treaty between Spain and Germany, in which I find the fullest conventional definition of the right, or from precedent and usage. The right of consuls “to address the authorities of their district in remonstrance against every infraction of the treaties or conventions existing between the two countries and against whatever abuse may be complained of by their countrymen” clearly includes initial representations upon those subjects. It may indeed happen that the precise form of remedy may have to be referred to His Majesty’s Government and that appropriate redress may be attainable only after diplomatic negotiation between the two Governments.

But such negotiations are the sequel of the original remonstrance, and are made necessary only when and because the local authorities show themselves lacking either in the will or the power to adequately deal with the grievance. This is clearly expressed in the concluding paragraph of article 9 of the Spanish-German treaty of February 22, 1870, which specifically authorizes consuls, in the absence of the diplomatic agent of their country, to conduct such further diplomatic discussion with the supreme government, thus clearly distinguishing between the incident in its incipient stage and the incident when it has passed that stage and become a subject of diplomatic treatment.

The communications of the consul-general to which His Excellency the Governor-General takes exception have been in each case made under the authority and direction of this Department in the interest of good relations and with the design of avoiding, if possible, that ulterior diplomatic correspondence which would necessarily ensue should any wrong against an American citizen in Cuba remain unredressed after due representation to the local authorities. It is, of course, true, as stated in my note of September 26, that the consul-general can not conduct a diplomatic discussion with the Governor-General, since neither that officer nor the consul-general possesses the requisite powers. Nevertheless, though the subject treated of may ultimately become the theme of diplomatic negotiation, that circumstance can not deprive the consul [Page 1214] of the clear right nor absolve him from the clear duty of initiating such inquiries and remonstrances as the interests intrusted to his keeping may from time to time require.

Accept, etc.,

Richard Olney.