Mr. Hay to Mr.
White.
Department of State,
Washington, March 6,
1899.
No. 787.]
Sir: Inclosed herewith please find a dispatch,
with inclosure from Consul-General Guenther dated February 20, 1899, in
relation to a summons issued to him as a witness to testify in a certain
case against Ludwig Bettag for alleged violation of his military
duty.
There is no exemption from summons stipulated in the consular convention
of 1871 between the United States and Germany; and such privilege can
not be claimed unless it can be shown that the consul-general is
entitled to such immunity in virtue of the most-favored-nation clause,
which provides that our consuls in Germany “shall enjoy all privileges,
exemptions, and immunities which have been granted, or may in future be
granted, to the agents of the same rank of the most favored nation.” You
will determine whether such immunity exists.
But by express stipulation of said Article III, Mr. Guenther, not being a
citizen of Germany, enjoys “personal immunity from arrest or
imprisonment, except in the case of crime.” The menace of the fine,
arrest, and imprisonment, not for any crime, against the consul-general,
appears to be gratuitous, and wanting in the respect due from
[Page 303]
one friendly government toward
the consular officer of another; and, if carried into execution, would
appear to be a flagrant violation of the express treaty engagement.
Article V provides that “the offices and dwellings of consuls missi, who
are not citizens of the country of their residence, shall be at all
times inviolable. The local authority shall not, except in the case of
the pursuit for crime, under any pretext invade them.”
While Mr. Guenther’s office and dwelling are inviolable, he is threatened
with arrest and imprisonment outside, or by virtual imprisonment inside,
his office and dwelling, if he fails to obey the process, either by
arresting him outside of his dwelling and office or inside thereof; or,
if it is not sought to arrest him outside, to virtually imprison him
within by making it impossible for him to go out without being subject
to arrest and imprisonment.
It appears, moreover, that the summons is addressed to him as
consul-general of the United States, and he is, as such officer,
required, in answer to question one, attached to the process, to give
evidence, “from papers to be shown,” whether “Bettag is an American
citizen.” The papers referred to are evidently those belonging to the
consular archives. This would seem to be violative of Article V, which
provides that “the consular archives shall be at all times inviolable,
and under no pretense whatever shall the local authorities be allowed to
examine the papers forming part of them.” While the papers are protected
from seizure or examination, the thing prohibited is sought to be
accomplished by compelling the consul to show them or to disclose their
contents.
In connection with this instruction you are referred also to instruction
No. 140, July 31, 1894 (inclosed herewith), to Consul-General Mason, as
to the immunity of consuls from giving information obtained in the
capacity of consul of the United States.
You will bring the matter to the attention of the German Government and
make known the views of this Government touching the conduct observed
toward Consul-General Guenther.
I am, etc.,
[Inclosure 1 in No.
787.]
Mr. Guenther to
Department of State.
United States Consulate-General,
Frankfort on the Main,
February 20, 1899.
No. 6.]
I have the honor, in conformity with paragraph 77 of the Consular
Regulations, to report that the following correspondence in the
German language has passed between this consulate-general and the
royal court of Frankfort on the Main, which is hereby translated to
English:
“In the process against Ludwig Bettag, of Dudenhofen, for violation
of his military duty, you are summoned for examination as a witness
by order of the royal court in its place of business, court-house,
room 24, before the royal court assessor, Mr. Wick, Tuesday,
February 21, 1899, at 10 a.m. Witnesses who do not appear without
sufficient excuse are to be sentenced, according to paragraph 50 of
the penal code, to pay the costs occasioned by such nonappearance,
also to a fine not to exceed 300 marks; and if this is not paid, to
imprisonment not to exceed six weeks—producing them by arrest is
also admissible.
“In case that you have left the domicile stated in this summons, or
if you should change it before the day of trial, you are required to
give such notice without delay.
“Frankfort on the Main, February 16, 1899.
“Barmers,
“Clerk of the Royal Court 6.
[Page 304]
“You shall be examined as to—
- “1. Whether, from papers to be shown, it appears that
Bettag is an American citizen.
- “2. Whether, the possession of American citizenship is
necessary to enter the American Army as a musician.
- “3. In how much time a certification of the acquisition of
American citizenship, in case of this being so, can be
received from America.
“To the consul-general of the United States of North America, Mr.
Guenther, present, Niedenau 78.”
In answer to this summons, I sent the following note to the royal
court:
“Frankfort on the
Main, February 20, 1899.
“The undersigned, consul-general of the United States of
America, received, in the evening of the 18th of this month,
a summons dated February 16, 1899, to be examined as a
witness in the process against Ludwig Bettag, of Dudenhofen.
R. H. 127/99. St. A. Frankenthal. The undersigned is always
willing to comply with the wishes and requests of the
authorities in the German Empire, provided they are made in
proper form and are conformable with his official duties and
his views of them.
“Said summons, however, especially in its form under threats
of fines and imprisonment and eventual arrest, is a
violation of the consular convention between Germany and the
United States, and the undersigned is compelled to complain
of such treatment and most respectfully but decidedly
protest.
“In addition he would add that he is perfectly willing to
answer the questions relative to the Bettag case, as far as
he is able to, provided the royal court requests him to do
so in the same proper manner as would be done by the
American authorities under similar circumstances toward
consular officers of the German Empire in the United
States.”
With great respect,
Richard Guenther,
United States
Consul-General.
[Inclosure 2 in No.
787.]
Mr. Rockhill to
Mr. Mason.
Department of State,
Washington, July 31,
1894.
No. 140.]
Sir: I have to acknowledge the receipt of
your dispatch No. 288, of the 9th instant, reporting that you have
been summoned to appear as a witness in court in a suit brought by
Julius Teufel against Henry Nickel for defamation of character, it
being sought to obtain from you testimony concerning statements
submitted to you by the said Nickel alleging that Mr. Teufel had
undervalued certain surgical goods exported to the United
States.
The information regarding which your testimony is desired was
conveyed by Mr. Nickel to you in your capacity of consul-general of
the United States, and as such officer you took action and
communicated the statements to the Department, thereby making them a
part of the records of your consulate.
It is provided in Article V of the treaty of 1871 with Germany that
the consular archives shall be at all times inviolable; and where
communications are from their nature confidential, for the
cognizance of the consul’s Government only, it is clear that
consular officers should not be called upon to testify regarding
them.
The Department, therefore, can not authorize you to testify in the
case, on the ground that whatever knowledge you may have is official
and privileged, because concerning only your relation to your own
Government.
It is also very probable that Germany has a treaty with France, or
with some other country, giving consular officers the privilege of
declining to appear in courts as witnesses. In such event, the
position now taken would be fortified by the provisions regarding
privileges and immunities granted to the most favored nation
contained in Article III of the treaty of 1871 with Germany.
From the inclosed letter from the Treasury Department you will see
that the Secretary of the Treasury is of the opinion that your
appearance as a witness would be detrimental to the interests of
this country.
I am, etc.,
W. W. Rockhill,
Third Assistant
Secretary.
