Mr. Hay to Mr. von Holleben.

No. 707.]

Excellency: Referring to Count von Quadt’s note of November 8 last, relative to the construction of Article XII of the consular convention of December 11, 1871, I have the honor to inclose a copy of a letter from the Attorney-General, stating why he is constrained to adhere to the decision of his predecessor, communicated to you March 1, 1901, that service of an attachment on a vessel was not intended to be and was not embraced in the proceedings which require previous notice to consular officers.

Accept, etc.,

John Hay.
[Page 165]

Mr. Knox to Mr. Hay.

Sir: I have the honor to state that I have given careful consideration to your letter of November 19 and to the note from the German embassy which you inclose, with its accompanying papers, relative to the construction of Article XII of the convention of 1871 between the United States and Germany. The language of that article is that “the judicial authorities and custom-house officials shall in no case proceed to the examination or search of merchant vessels without having given previous notice to the consular officers of the nation to which the said vessels belong, in order to enable the said consular officers to be present.” The concluding paragraph of the article provides for giving such notice when statements by officers or members of a crew are to be made in court or before a magistrate, in order to prevent error or false interpretation which might impede the correct administration of justice.

The view of Mr. Griggs (letter of February 26, 1901), to which the embassy’s note refers, was that the service of a writ of attachment upon a vessel is not within the language or the intent of this article of the treaty, especially since immediate service of such writ is often the very essence of the right of a claimant or creditor. The note of the German embassy, while claiming that the service of attachments is covered by the language of Article XII, concedes generally that when the object of the proceedings can otherwise not be attained, or be attained but partially, the obligation to give previous notice is so far qualified, and that the proximity of a vessel’s departure justifies the failure to notify before the attachment is effected, provided due notice is subsequently given.

On review of the entire subject, I concur in the conclusion announced in my predecessor’s letter of February 26, 1901, viz, “that the reasons are obvious why the service of an ordinary attachment was not intended to be and was not in fact embraced in the proceedings which require previous notice under Article XII of the treaty.”

Very respectfully,

P. C. Knox, Attorney-General.