Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1900
Mr. Lasserre to Mr. Tourgée.
Office of the President.
Bordeaux, May 21, 1899.
Monsieur le Consul: In reply to your letter, I have the honor to inform you that I have not the authority to carry out the measure of which’ you speak. The procureur of the Republic alone has authority in such matters. It is to that officer you must address yourself.
Pray accept, etc.,
Mr. Berniquet to Mr. Tourgée.
Bordeaux, June 15, 1899.
Monsieur le Consul: In acknowledging the receipt of your letter of the 9th instant, I had the honor to inform you that I had transmitted to the minister of foreign affairs your complaint to me against the saisie-gagerie executed by the order of the vice-president of the tribunal civil at the request of the proprietor in the villa you had leased at Arcachon.
I have also informed the minister of foreign affairs that an inquiry has been conducted by M. le procureur of the Republic near the tribunal of Bordeaux into the conduct of the commissary of police of Arcachon, and of the huissier, M. Rousse, in the execution of the writ, and that this inquiry has shown:
- 1.
- That neither the commissary of police of Arcachon nor the constable, Rousse, uttered a single word disrespectful to the American flag displayed on the balustrade.
- 2.
- That they did not make any search nor inspection of the papers you had in the villa.
Accept, etc.,
Mr. Tourgée to Mr. Berniquet.
Bordeaux, June 30, 1899.
Monsieur le Préfet: I have the honor to acknowledge your letter of the 15th of June informing me that the procureur de la République has decided that the commissary of police of Arcachon and the huissier, Rousse, did not utter any words derogatory (offensante) to the American flag on the occasion of their forcible entrance and search of my dwelling on the 10th of April, 1899, and also that they did not make any scrutiny (cherche ni inspection) of the papers deposited therein.
An ex parte investigation seldom discloses the truth. There were nine persons— and only nine—who had an opportunity to know what occurred during said invasion of my dwelling. These were:
- 1.
- The commissary, the huissier, and the three persons accompanying them. Every one of these had a direct interest to exculpate the officials under whose direction they acted.
- 2.
- The four other persons in my dwelling, some of whom saw and heard all, and some a part only of what was then and there said and done. None of these had any interest or inclination to exaggerate to the prejudice of the officers. Not one of them was examined by the procureur. The testimony of these persons was taken by me within an hour after the affair, and is directly at variance with the procureur’s findings.
The findings of the procureur, however, embrace only one element of the matter in question. The words used by the officials were not reported as constituting of themselves an offense against the flag of the United States. The wind of no man’s mouth disturbs the flag of the American Republic unless he speaks for a hostile nation. The words of these officials were cited by me simply as explanatory of their acts. Their words showed, as does the procès-verbal signed by them, that their acts were deliberate and intentional, made against my protest and resistance, and with full knowledge that my residence was exempt from official entry by treaty.
Lest it should be claimed that I admit in any respect the truth of the procureur’s finding, I here reassert my original statement that the commissary said in response to my protest:
“I have no concern with (I do not occupy myself with) conventions, consuls, or flags. We have the order of the tribunal. That is enough for me.”
And that the huissier said, “Nous ne respectons pas ce drapeau-là!” His manner was insolent in the extreme and his tones unmistakable. For the commissary’s manner I have always had words of commendation. He acted as if doing an unpleasant duty with regret, under the compulsion of superior authority. His words merely show that he knew the treaty made my dwelling inviolate, but he thought the order of the tribunal was paramount. His offense was not one of words, but of deeds. The huissier’s manner, however, was that of a bully. His words accord with his acts. I refused to complain of his insolence, simply because I did not wish [Page 446] to mix personal considerations with a matter of international comity. If any magistrate had a right to order a seizure of my goods and chattels without notice, it is a matter of no interest to my Government whether it was served by a gentleman or a boor, with courtesy or insolence. At that time I supposed, indeed, that the order was a mere inadvertence upon the part of the magistrate, who had not observed the official character of the person against whom it was directed. It was not until it became necessary to provide copies for my Government that I noted that such order was exceptional, and could only be granted when the magistrate was satisfied that the defendent was about to flee the jurisdiction of the court or remove his property therefrom. It was then that I first realized how gross an affront the vice-president of the tribunal had, with apparent deliberation, put upon the representative of a friendly power. I had no wish to take offense, but instead, promptly suggested that it be regarded as an accidental rather than an intended violation of treaty rights. So, while taking the necessary steps to report the matter to my Government, I was careful not to mingle with it any hint of personal feeling and refused to make complaint against any official beyond the bare fact of a violation of treaty stipulations. I desired to report it as the unintended result of misconception of duty on the part of the administrative officers, and on the part of the vice-president of the tribunal as a mere inadvertence. I could not believe that any judicial officer would willingly ignore the provisions of the treaty.
As the question whether in the execution of this writ the officers exceeded their powers by examining the papers in my dwelling, it depends wholly on the force given to the term “examine.” I certainly did not suppose anyone would infer from my report that these officials read the consular documents in my house. As these are written in English, of which they were wholly ignorant, this was impossible. My statement that they did examine them was based on the following facts:
- 1.
- In the procès-verbal signed by all the parties they declare that they “examined” the whole house, and I know this to be true. Two principal rooms of the same, the salon and mirandor, had been used for four months as an office where the business of the consulate had been carried on, only the routine business being done at 52 Cour du Jardin Public in Bordeaux. All letters, dispatches, and legal documents were here prepared under my direction; everything pertaining to a consulate except the verification of invoices and the issue of bills of health was done at my dwelling in Arcachon. Could anyone have searched these rooms without examining these papers?
- 2.
- I was prevented from entering the salon by the commissary until the huissier and his posse has been there for some minutes. When permitted to enter, I found the huissier seated at a table on which were consular papers in all stages of preparation.
- 3.
- One of his attendants had in his hands a set of drawings intended for a report I was making to my Government on the “Reforestation of the Dunes of La Teste.” I took them from him, saying they were the property of the United States.
If these acts do not constitute an examination of the papers there deposited in violation of the treaty, it is difficult to say what would. That they did not seize these papers is most natural, since the same had no salable value.
As to the statement of the procès-verbal that no property was found in the villa of sufficient value to discharge the claim, it is so curiously inexact as to awaken doubt as to the bona fides of the whole proceeding.
The claim amounted to 1,400 francs, less than $300 in American money. Two rugs, on one of which the huissier stood, and the other he could not have avoided seeing, are insured for more than that sum, and could not be bought for as much more. The silver, books, type-writing machine, and other personal property belonging to me in the house, not including clothing, was easily worth as much more. In addition to this there were in an unlocked casket in an armoire which the huissier opened, diamonds and jewels worth five times the amount of the claim, one set alone having been appraised at 15,000 francs. Why did not the huissier seize this property instead of making a false return of the execution he held? Did he apprehend unpleasant consequences should he make such seizure on an execution granted secretly, and ordered served without notice against a consul protected by such treaty? Or had he been instructed by the attorney, whose clerk was one of his witnesses, that he was to make no seizure should I refuse to submit to intimidation?
I know nothing about these things, but judging his actions by the ordinary rules of human nature, it would seem as if, knowing the precarious condition of my health, and that I was ready and able to pay, I had already informed him in writing of my readiness to do so whenever he complied with his contract, and my entire willingness to submit the whole matter to any tribunal or magistrate of the Republic Francaise—knowing these things and considering the fact that the writ was expressly [Page 447] ordered not to be recorded, it would seem as if it was expected that rather than submit myself and family to the annoyance and humiliation of the huissier’s insolence and the seizure he threatened, I would submit to the fraudulent and unjust demand he was required to make. If this was the purpose they simply mistook their man. While entirely willing to comply with any judgment that might be rendered against me by any magistrate after investigation of the facts, it was wholly out of character for me to submit to imposition though backed by an order surreptitiously obtained as this evidently was.
Lest it should be assumed that the report of the procureur, to which you refer, covers the ground on which my complaint of violation of the convention of 1853 rests, I beg to append hereto a statement of the official acts heretofore called to your attention as obnoxions to its provisions:
Proviso.
The treaty provides, Article III, that “the consular offices and dwellings shall be inviolate.”
Violation.
The vice-president of the tribunal not only ordered the invasion of such a dwelling, but directed search and seizure to be made therein; that the order should not be recorded, and that the ordinary notice or commandement should not be issued, for the express purpose of concealing from me the pendence of said action. Instead of recognizing the consul as entitled to immunity, he took pains to deprive him of ordinary consideration by suppressing the usual notice of lis pendens.
Proviso.
The treaty provides that “the local authorities shall in no case enter the dwelling of the consul under any pretext.”
Violation.
The vice-president of the tribunal civil of Bordeaux ordered a bailiff and his posse to enter my dwelling, which had also been used for four months as on office for the transaction of consular business, on a pretext not only false but on its face evidently absurd, to wit, that a consul of the United States who did not owe a sou to any man in France, was about to flee the jurisdiction of the court to avoid the payment of a sum amounting to less than the official emoluments of his office for a single month. This order was either intentional or inadvertently issued. As he does not admit its inadvertence, it is fair to presume it an intended defiance of the provision of the treaty.
Proviso.
The treaty is especially careful that the incumbent of the consular office shall be treated with due consideration, and even in the administration of justice shall not be summoned before the tribunal, but his testimony shall be taken at his domicile, or he shall be invited to answer any judicial inquiry in writing.
Violation.
Instead of making such inquiry and treating the consular officer with even reasonable consideration, the magistrate ordered the issue of a writ requiring the bailiff to invade and search the domicile, and directing the same to be carefully concealed in order that said consul should not know of the proceedings by the issue of the ordinary notice of demand made against him, but be taken by surprise and submitted to humiliation and annoyance as well as deprived of opportunity for defense.
Proviso.
The treaty provides that the local authorities shall in no case examine or seize any papers which may be in the office or dwelling of the consul.
Violation.
A judicial order to search and seize anything of value in the dwelling of the consul necessarily implies the examination of papers therein.
[Page 448]Proviso.
The treaty provides that the consul shall enjoy complete immunity, except in case of crime.
Violation.
In this case no crime is alleged, but the commissary of police of Arcachon, in spite of my earnest and repeated protests, effected an entrance to the consular dwelling by forcibly removing the consul from the doorway in which he stood protesting and resisting, pushing him back along the hall for the space of 3 or 4 yards in order to allow the huissier and his posse to enter the salon. He also forcibly removed the consul from before the door of each room in the house successively, permitting the huissier to enter in spite of my protest and resistance. These things are admitted by the proces-verbal, giving report of such violation of my domicile, and shown by a picture taken by an artist present at the very moment of such violent entry, a copy of which is attached to my report.
Proviso.
The treaty provides that the consul may display the flag of his country over the door of his habitation or offices, and that the same shall be treated with respect as an emblem of his official character and the inviolability of his habitation.
Violation.
At the time of the forcible entrance of my dwelling by the uniformed officials of the department, a large consular flag hung above the door reaching down so far that a man could scarcely pass under without touching its folds. The parties committing this trespass were all aware that the house was the dwelling of a consul of the United States, and their attention was then called to the fact that by the terms of his exequatur he had the right to exercise the functions of his office in each and all the departments of Gironde, Ariege, Basses-Pyrenees, Gers, Haute-Garonne, Hautes-Pyrenees, Landes, Lot-et-Garonne, Tarn-et-Garonne, and Tarn, and all officials were ordered to accord to him the rights, privileges, and immunities secured by treaty to consuls of the United States in France and to the consuls of France in the United States. In contempt and defiance of these provisions of the treaty, the said commissary refused to recognize the immunity of said flag and procured by force an entrance of the premises by continued violence against the person of the consul.
The only hint of justification of these acts has been:
1. A verbal intimation that the term “consular dwelling” used in the treaty was intended to apply only to the domicile of the consul when in connection with a specific office.
This construction is so evidently absurd as hardly to require refutation, but I call attention to the following
- (a)
- Very few consuls in either country occupy apartments adjoining the consular offices.
- (b)
- In this case the consular district embraces ten departments, and my exequatur commands the same recognition and the same immunity in all of them.
- (c)
- The distinction between “consular offices” and “dwellings” in the treaty shows a clear purpose to protect both, no matter how far apart they may be. I am required to have an office in Bordeaux, but I may have a dwelling a league or 50 leagues away from it, if it still be in the district composed of these ten departments. Last year my Government authorized and directed me to spend two or three days in each week at another point. Can anybody believe the same immunity would not have attached to my dwelling at that place?
2. The investigation conducted by the procureur of the Republic, referred to in your letter of the 15th instant, which seems to be an attempt to draw attention away from the acts violative of the treaty to the comparatively unimportant incident of the words of the officials while engaged in committing these acts.
3. According to another verbal intimation of one who claimed to speak for you, it appears that the commissary has denied the exercise of force to effect an entrance to my dwelling.
I had been ill for more than a year and was therefore physically unfitted for a very desperate resistance, even had I regarded it as fitting that I should offer extreme violence to the authorities acting in the name and clothed in the insignia of the Republic of France. I doubt if any considerable number of my countrymen could be made to believe that their consul at Bordeaux would abandon an attitude of [Page 449] forcible resistance to what he deemed an unlawful invasion of his domicile. They know him too well to believe that he would yield to anything but actual force. The truth is, I was pushed back by the commissary and the others crowding against him with such force as to thrust my daughter, who stood beside me, violently against the hatrack in the hall and carry me the whole length of the hall to the space opposite the stairway. This struggle was renewed and the same force applied to remove me from the door of each room. It would have been derogatory to my position to have fought, but my duty required that I should resist encroachment on my consular rights and the immunities granted by treaty to my office and dwelling. That I did at every stage of the proceedings.
The same treaty which grants these immunities makes it my duty to report to the local authorities, judicial and administrative, every infraction of the treaties between the United States and France coming to my knowledge. This duty I have performed, carefully, moderately, and persistently, as you are already aware.
- 1.
- By written protest to the commissary of police of Arcachon, delivered to him on the very day of the outrage, of which not even an acknowledgment has been received.
- 2.
- By two reports to you, April 11 and 13, the receipt of which you briefly acknowledged without special comment, except to deny responsibility for judicial acts.
- 3.
- By letter to M. Lasserre, vice-president of the tribunal civil of Bordeaux, who signed the writ and directed it to be executed without notice and withheld from record to prevent my obtaining knowledge of it. He replied, simply by saying that it would be necessary for me to make complaint to the procureur of the Republic, which I declined to do as I had no personal complaint to make against anyone, but simply suggested, as was my official duty, that the treaty had been violated by both the judicial and administrative authorities.
These letters constitute my report of this incident to my Government. I have also included the report of a case before the cour d’appel of Limoges, construing this treaty, which decision is found in La Loi of May 26, 1899.
I also find myself compelled to state that I have received from no one responsible for the acts complained of or their official superiors any admission that such acts were violative of the treaty between the United States and France, or expressing any regret that these things should have occurred. The president of the tribunal civil of Bordeaux did, it is true, express his clear conviction of the illegality of the whole proceeding, but declared that by the practice of that court he could not take the initiative in the annulment of a writ issued by the vice-president.
With this letter my connection with this affair comes to an end. It now becomes a question whether my country will insist upon the observance of treaty rights or will permit its consular representatives in France to be annoyed by judgments rendered on false, absurd, and fraudulent claims, without hearing testimony or giving opportunity for protest or defense, and be subjected to writs of execution secretly issued without the usual notice of lis pendens, and by special order of the judge withheld from the record lest such consular representative should become aware that any proceeding has been taken against him. The determination of that question rests entirely with others.
I have to congratulate myself that during these two months and more of negotiation with the local authorities which the treaty imposes upon me as an official duty I have neither written nor uttered in regard to this matter a single word which I desire to modify or recall. Instead of magnifying the incident or seeking to arouse any feeling or clamor in regard to the same, I have kept it entirely from the public press of my country, and not only refused to speak of it to reporters but even secured the silence of one who was an eye witness of the whole affair. While it has been under my control there has been only persistent effort to minimize, if possible, its importance by seeking to induce the judicial authorities to declare the writ to have been inadvertently granted and the administrative authorities to reprove by written order their subordinates for excess of zeal. This would have enabled me to report it as an accidental rather than an intended violation of the treaty, thus depriving it of all international significance.
The persistent refusal of the local authorities to adopt this course leaves me no discretion but to report the whole matter to my Government as a gross violation of the treaty, for which the local authorities have for nearly three months refused to make any reparation, to express any regret, or disavow the right to repeat the same whenever opportunity may occur.
I am, etc.,
Syllabus of case reported in La Loi of May 26, 1899, of a decision of the court of appeals of Limoges of the 12th of May, 1899, on the question of the inviolability of the consular dwelling.
“Under the terms of Article III of the convention of the 15th of September, 1853, between France and the United States, the offices and dwellings of consuls are inviolable; the local authorities can not invade them under any pretext, and they shall not in any case examine or seize the papers which are there deposited.”
“The inviolability which protects at the same time the business offices of the consulate and the private dwelling of the consul extends to all his personalty, furniture, and other effects which serve the personal convenience of the consul or that of his family or household.”
“In consequence of these provisions the furniture and other movable effects (objects mobiliers) which adorn not only the offices specially designated ‘the consulate’ but also the ‘dwelling’ of the consul can not be seized under execution.”