Mr. Hay to Mr. Cambon.
Washington, March 1, 1902.
Excellency: I have the honor now to reply to the note which Mr. de Margerie wrote me on November 7 last, relative to the violation of the Franco-American consular convention.
The French consul-general at San Francisco complained that in a suit against Mr. Tamm, an employee of the consulate-general, a persistent endeavor was made by a deputy sheriff of San Francisco to serve a citation upon Mr. D’Allemagne, the consul-general, in a garnishment proceeding against Mr. Tamm. Mr. D’Allemagne caused this citation to be returned to the sheriff’s office. Shortly afterwards, on two separate occasions, two other deputies endeavored to serve papers upon Mr. D’Allemagne in the same proceeding. And finally a Mr. Kelly endeavored, with annoying persistency, to serve these papers upon the consul.
[Page 401]I have received a letter of the 3d of last December from the governor of California, with inclosures, in answer to these complaints. He sends letters from the mayor of San Francisco and from the sheriff of that city, explanatory of the matter, and also copies of letters from the consul to the mayor, to the sheriff, and to the governor himself, together with the replies of these officials.
From this correspondence it appears that the first deputy sheriff who entered the consulate-general was a new man, who, unaware of the rights of the consul-general under the treaty, ignored Mr. D’Allemagne’s protests. He was, however, upon the receipt of Mr. D’Allemagne’s complaint, instructed in the matter by the sheriff. Moreover, the sheriff apologized to the consul-general for the act of the deputy.
On the second and third occasion, of which Mr. Allemagne complains of annoyance, the sheriff, Mr. Lackmann, explains that papers had been put into his hands for service on the consul-general; that the law makes it the duty of the sheriff to endeavor by all reasonable means to serve the documents placed in his hands for that purpose; that the two deputies did not annoyingly persist in serving the consul-general with the papers, but that they sent the consul-general word in each case what their purpose was; that the consul-general declined to receive the papers, and thereupon the deputies withdrew.
Mr. Lackmann points out, and very properly, that such a proceeding is not prohibited by the convention. It is the opinion of this Department that such conduct can not be held to be in violation of the treaty. It was merely a polite notification to the consul-general of the deputies’ business, in which it was left entirely to the consul-general to accept service of the papers or to decline it. The convention does not prohibit a consular officer from accepting service, as Mr. Lackmann very justly observes. It is merely provided that they shall not “be compelled to appear,” etc.
With reference to the importunities of Mr. Kelly, it is stated that he is a private process server, not an officer, and that the sheriff has no control over his action. If Mr. Kelly annoyed the consul-general, it is a matter of regret to the Department; but there appears to be no authority to control such conduct, except perhaps the municipal police. Neither the sheriff nor the mayor can be held responsible for the unauthorized acts of any private individual. If, in the future, similar attempts should be made by Kelly or any other private individual, it is suggested that Mr. D’Allemagne seek the protection of the police.
The Attorney-General gave instructions to investigate the matter to the district attorney for the northern district of California, and on the 25th ultimo favored me with a report from that officer, which corroborates in all particulars the facts as stated by Mr. Lackmann.
Trusting that this explanation of the occurrences will be deemed satisfactory, I avail, etc.,