[Inclosure.]
Mr. Knox to Mr.
Hay.
Department of Justice,
December 28, 1901.
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.
