Mr. Hay to Mr. Merry.
Washington, April 17, 1899.
Sir: With reference to the remonstrance of American merchants at Bluefields against being compelled to pay the Nicaraguan Government certain imports and other charges after they had paid the same to the insurgent authorities led by General Reyes, and with reference to the refusal of our consul, Mr. M. J. Clancy, to appear and testify before the court of inquiry, you are instructed:
1. That this Government will not lend its countenance or support as against such second payment to any Americans, if any such there be, who have freely and voluntarily aided or abetted in any manner the said insurrection.
[Page 567]2. But all Americans who made such payment to the insurgent authorities under duress of person or property, or under intimidations amounting to coercion, are entitled, if second payments are demanded by the Nicaraguan Government, to make such payments under protest. Such payment under protest does not prejudice in any manner the legal rights of the Nicaraguan Government nor those of the American merchants. Its effect is merely, notwithstanding such second payments, to reserve to the parties making them their legal rights, and afterwards to demand the refundment of the moneys so paid, if they were illegally exacted. This Government will therefore sustain said American citizens in their attitude and claim of the right of protest while making such second payments. If there are any such Americans who have made them and have refrained from protesting against the same because they have been required by the Nicaraguan Government to make them without protest, this Government will, for the purpose of this controversy, treat such second payments as having been actually made under protest, and will consider the ultimate rights of the parties, whatever they may be, as unimpaired by reason of such payments exacted and made without protest.
This Government has not prejudged the rights of the parties, but, pending their consideration and awaiting a full investigation and knowledge of the facts, it withholds its decision until such a time as it can be rendered with due regard to the mutual rights and interests of the parties, to the principles of public law, and to the usages of civilized nations. It is actuated by the desire to reach, if possible, a solution of the question consistent at once with the feelings of friendship existing between the two Governments and with the dictates of international justice.
3. The Department has received a cablegram (copy inclosed) from our consul, W. S. Sorsby, asking whether our consular agent, M. J. Clancy, at Bluefields, “must appear before the court of inquiry now sitting here and testify regarding Americans in the late revolution and political events generally relating thereto,” and asking whether his refusal to do so is approved.
Article X of the treaty of 1867 between the United States and Nicaragua provides that “the diplomatic agents and consuls of the United States in Nicaragua shall enjoy according to the strictest reciprocity whatever privileges, exemptions, and immunities are or may be granted in the Republic of Nicaragua to the diplomatic agents and consuls of the most favored nations.”
You will determine what immunities, exemptions, and privileges are accorded by Nicaragua by treaty with Spain, Great Britain, or any other nation, to the consuls of such nation; and whatever exemption, privilege, and immunity they are accorded you will claim for Mr. Clancy.
As a general rule of international law it may be observed that in the absence of treaty stipulation consuls are not, as such and in general, entitled to all immunities which attach to a diplomatic representative. The consular archives are, however, inviolable under all circumstances. They can neither be invaded nor searched, nor seized by the officers of justice or other authority; but the personal books: nd papers of the consul are not entitled to such immunity. He can ot be required to divulge information which came to him in his official capacity, for that is the exclusive property of his Government; but as to matters which come within his knowledge or observation [Page 568] in his mere capacity as an individual he is not privileged from testifying as a witness. If a consul should himself participate in the commission of crime or in setting on foot an insurrection, or should observe others doing so, against the Government to which he is accredited, he could not be shielded from testifying, according to the forms of the local law, as to the facts thus acquired and within his personal knowledge.
On the one hand, he is entitled to enjoy all the privileges necessary to enable him to discharge the duties of his office; on the other hand, he is not to refuse to testify, under the circumstances and limitations above stated, simply because the facts to which he is required to testify might be of a political character, or simply because his testimony might have a tendency to implicate American citizens or others in the commission of unlawful acts.
I am, etc.,