Mr. Porter to Mr. Hay.

No. 667.]

Sir: Referring to previous correspondence touching the violation of the consular dwelling of Mr. Tourgée, our consul at Bordeaux, and particularly to your No. 757, of April 9, asking what is the present status of the matter, I have to report that on April 24 I addressed a note to Mr. Delcassé, recalling the question to him and inquiring whether the French Republic was now prepared to adhere to the construction given by my Government to the clause of the treaty of 1853 concerning the inviolability of consular dwellings.

A reply came under date of the 15th instant in which Mr. Delcassé states that, after having consulted his legal counsels and in conformity with the opinion expressed by them, the Government of the French Republic considers that, by stipulating in article 3 of the treaty of 1853 that chancelleries and consular dwellings are inviolable, France intended to attribute the great privilege of inviolability only to the offices and to the dwellings of the consuls in the place of their official residence—that is to say, in the city where, according to the terms of their exequatur, they are admitted to discharge their functions.

The minister then goes on to state that the fact that the exequatur extends the jurisdiction of a consul beyond the limits of the city which is his official residence has only for object of determining where he is competent to act officially. Mr. Delcassé insists particularly on this consideration, that, if the treaty was read as we read it, American consuls in France and French consuls in the United States would be vested with privileges which belong only to the diplomatic representatives of the two countries.

I inclose a copy and a translation of Mr. Delcassé’s note, together with a copy of mine of April 24, to which he replies.

I have, etc.,

Horace Porter.
[Inclosure 1.]

Mr. Porter to Mr. Delcassé.

Sir: I am in receipt of a dispatch from my Government asking what is the present status of the case submitted to your excellency in my communication of September 19, 1899; touching the violation of the consular dwelling of Mr. Tourgée, consul of the United States at Bordeaux while he was temporarily stopping at Arcachon. Your excellency will remember that our two Governments disagree as to the meaning of the language of Article III of the consular convention of February 23, 1853, as applied to the premises occupied by Mr. Tourgée at Arcachon, and that in your note to me of November 8, 1899, I was informed that it was your intention to obtain legal advice on the subject.

In view of the time which has elapsed since writing my letter of September 19, 1899, above mentioned, I shall feel obliged if you will kindly inform me at your earliest convenience whether the French Government is now prepared to adhere to the construction given to the clause in question of the treaty by my Government.

I avail, etc.,

Horace Porter.
[Page 455]
[Inclosure 2.—Translation.]

Mr. delcassé to Mr. porter.

Mr. Ambassador: In your letter of April 24, last, you did me the honor to refer me to the question of the interpretation of Article 3 of the Franco-American consular convention of February 23, 1853, which was brought up in the course of the communication of your excellency of September 19, last.

Your excellency will remember that in my reply of November 8, I had to show that a difference of opinion existed between the Government of the Republic and the Government of the United States concerning the purport of one of the dispositions of Article 3.

So, according to the communication of your excellency of September 19, last, the American Government thought that by inserting in the consular convention of February 23, 1853, the stipulation which we are discussing, the high contracting parties had decided that the inviolability of the chancelleries and consular dwellings applied to whatever habitation the consul happened to be occupying for the moment and for his pleasure, and without official motive, in another town than the one indicated in his exequatur, as the one where the consul is admitted to reside in his official capacity. For my part, I informed your excellency in my reply of November 8, last, that the interpretation given by your Government to this stipulation of the Franco-American consular convention, differed from the principles which had been admitted by the Government of the Republic in the different consular conventions signed by France, and that it was not possible for me to adhere to this interpretation without taking the advice of competent counsel in regard to the import which, in their opinion, should be attributed to the disposition in question, of article 3 of the Franco-American Convention of February 23, 1853.

After having caused the examination of which we are speaking to be undertaken, I have now the honor to inform Your Excellency that the Government of the Republic, conformably to the advice given by the jurists who were consulted, considers that by stipulating in article 3 of the above-mentioned convention of February 23, 1853, that “the chancelleries and consular residences are inviolable,” France did not understand that she attributed the great privilege of inviolability, except to the consular officers and to the consular residences in their several official posts; that is to say, in the city where they are recognized to reside according to the terms of their exequatur for the performance of their official duties. The fact that the exequatur states that the jurisdiction of the consul shall extend over a wider radius than the limits of the city, only has reference to a question of the right for consular intervention, and for the acts which this agent might be called upon to perform, from the moment when the exequatur determines the place where the consulate is established and consequently the official residence of the consul. Also if inviolability has been accorded to the consular residence, it is only because it might be sometimes difficult to make a distinction between the consular office and residence in the city where the consul exercises his functions, from the point of view of the immunity granted by article 3 of the convention of February 23, 1853. By this stipulation it was desired that since that time all misunderstandings and frictions should be avoided.

But to desire that this inviolability be extended to all houses which a consul of the United States might inhabit in France, in his consular district and in a city other than that in which he has his chancellery, and where he is expected to reside according to his exequatur, would be to place a consular agent, in so far as his privileges are concerned, on a ground of absolute equality with foreign ambassadors and ministers, clothed with a diplomatic character, and accredited to the Government of the French Republic, or to the Government of the United States; this would be, in a certain way, to decide that the American consuls in France and the French consuls in the United States, are to be given the position of “public ministers,” by the stipulation of article 3 of the consular convention between France and the United States. The courts of France have never admitted that this quality can be recognized in foreign consuls who are admitted to exercise their functions in the territory of the Republic, and they have always interpreted, in the narrowest and strictest sense, the extent of the privileges which may result from the stipulations of the consular conventions. I believe I am right in stating, moreover, that the jurisprudence of the American courts is, in this respect, the same as that of the French courts, and, taking as authorities on international law, such writers as Wheaton and Lawrence, they likewise refuse to recognize in foreign consuls in the United States the character of “public ministers.”

Basing itself upon the conditions aforementioned the Government of the Republic finds itself under the unavoidable necessity of not being able to concur in the interpretation [Page 456] which, according to the note of your excellency of the 19th of September, 1899, the Government of the United States gives to the clause of article 3 of the Franco-American convention of February 23, 1853. I am pleased by the thought that after the examination of these considerations the Secretary of State of the Union will see their value, and will on his part adhere to the import attributed by the French Government to the stipulation in question. It is in this hope that I pray your excellency to have the kindness to transmit this present communication to your Government.

I beg, etc.,

Delcassé.