Mr. Hay to Mr. White.

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.,

John Hay.
[Inclosure 1 in No. 787.]

Mr. Guenther to Department of State.

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.

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.

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.