Mr. Tower to Mr. Hay.
Berlin, March 6, 1903.
Sir: I beg leave to call your attention to a question which has arisen recently at the consulate-general of the United States at Frankforton-the-Main in regard to the interpretation of article 8 of the treaty of 1871, which gives consuls-general and consuls the right to ask for information from the local authorities at their official posts.
[Page 445]It appears that Mr. Guenther, the United States consul-general at Frankfort, acting in compliance with a request which he had received from the American Alliance in Cincinnati, for information in regard to the number of American citizens residing in Frankfort, addressed an official note to the police president of Frankfort in December last, in which he inquired of that official how many Americans are at present living at Frankfort. To this note of the consul-general the police president replied that under instructions which he had received from his superiors he could not answer questions of that character unless they were made through the diplomatic channel. Thereupon Mr. Guenther presented the subject to me and protested against this action of the police president as being a violation of treaty stipulations, and he declared that his “office will be seriously impeded if his right to correspond freely and directly with the authorities in his consular district is in any way curtailed.”
I brought his letter to the attention of the Imperial German ministry for foreign affairs with the request that an inquiry might be made as to the action of the police president, and asked that I might be informed upon what grounds the information requested by the consul general had been refused. I have received from the imperial ministry for foreign affairs a note, under date of the 2d of February, 1903, a translation into English of which is respectfully hereto attached, in which it is formally announced that the German Government does not recognize the unrestricted right of consular officers to ask for information from the local authorities in their respective districts, but that such right is accorded only under certain conditions and for certain purposes. This note from the ministry for foreign affairs was accompanied by a copy in English of article 8 of the treaty of 1871, and I have the honor to inclose herewith an exact copy of that copy with the under scorings made at the German ministry for foreign affairs.
Article 8 of the treaty of 1871 provides that “consuls-general, consuls, vice-consuls, and consular agents shall have the right to apply to the authorities of the respective countries, whether federal or local, judicial or executive, within the extent of their consular districts, for the redress of any infraction of the treaties and conventions existing between the two countries, or of international law; to ask information of said authorities, and to address said authorities to the end of protecting the rights and interests of their countrymen.”
The question at issue seems to have arisen from the interpretation of that portion of article 8 which authorizes consular officers to ask information of said authorities, and it would seem to depend somewhat upon the punctuation of that sentence. In the copy of the United States treaties published at the Government Printing Office in Washington in 1875, there is a comma after the words “said authorities,” so that the sentence reads, “to ask information of said authorities, and to address said authorities to the end of protecting the rights and interests of their countrymen”; but in the copy of the treaties published in 1899 by Mr. Henry L. Bryan (which publication, however, was not authorized by the Department) the comma after “said authorities” does not appear, and the sentence would therefore read, “to ask information of said authorities and to address said authorities to the end of protecting the rights and interests of their countrymen.” This would appear also to be the interpretation put upon the treaty by the German Government, although I beg leave to call your attention [Page 446] to the fact that in the copy of article 8 sent to me from the ministry for foreign affairs the words “and to address said authorities” are entirely left out, so that the sentence quoted by the German ministry reads, “to ask information of said authorities to the end of protecting the rights and interests of their countrymen,” whence it appears that the German Government has decided that consular officers have not the right to ask the local authorities for general information, but merely to ask for information in connection with the protection of the rights and interests of their countrymen; that is to say, in a limited and restricted sense.
Whilst I do not believe that as a rule a request from a United States consular officer for general information would be refused by the local authorities, yet the interpretation of this provision of the treaty has rather a wide importance in determining the authority of United States consular officers to ask for and obtain detailed information which may be useful and necessary in the performance of their official duties and in rendering service to their Government. I have considered it necessary, therefore, to present this subject to you in detail as it has arisen, and respectfully to inquire what the interpretation of the United States Government is of article 8 of the treaty of 1871, and how far the Government recognizes the right of German consuls in America to ask for and obtain general information from the local authorities in their districts, under the provisions of the treaty. I beg also to be informed whether in the original text of the treaty of 1871 there is a comma after the words “to ask information of said authorities,” and whether it is the understanding of the United States Government that this article authorizes consular officers to ask for information in an unrestricted and general sense, or whether it understands that the authority granted by the treaty extends merely to the right of asking for information “to the end of protecting the rights and interests of their countrymen.”
I have, etc.,