Mr. Hay to Mr. Tower.
Washington, April 1, 1903.
Sir: The Department has received your No. 62, of the 6th instant, with inclosure, relating to the question of the right of consuls of the United States in Germany, under article 8 of the convention of December 11, 1871, with Germany, to address directly the local authorities of the consular district for information.
In reply I have to say that article 8 of the treaty stipulates 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 district, 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, especially in cases of the absence of the latter; in which cases such consuls, etc., shall be presumed to be their legal representatives.
The punctuation of both the English and German texts of the original treaty agree with the contention of the German Government. Article 8 specifies three cases, and three cases only, in which such intervention may be had with the local authorities, namely:
- 1.
- For the redress of any infraction of the treaties and conventions between the two countries.
- 2.
- For the redress of any infraction of international law.
- 3.
- To the end of protecting the rights and interests of their countrymen.
The treaty stipulations are in derogation of the rights of sovereignty and can not be interpreted or construed so as to include rights not expressly given them by the treaty. It therefore follows that as the basis of a demand for such official information of the authorities of either country it must appear that such information is legitimately sought to aid the official in obtaining information to the end of protecting the rights and interests of his countrymen. This right to ask information with a view of protecting the threatened rights and interests of his countrymen only exists in a concrete case where the violation of such rights and interests is committed or threatened, and where such information is necessary for the purposes of protection. That this is the general intendment of the statute is apparent from the last clause in the first paragraph of article 8, which reads as follows: “In which cases such consuls, etc., shall be presumed to be their legal representatives” (that is to say, in the absence of their countrymen.) This article of the treaty was adopted in aid of the administration of [Page 448] justice and for the vindication of rights and interests which were violated or threatened with violation, and can not be extended by construction so as to authorize the consular officers to organize a statistical bureau or a bureau of information, or for any other similar function which belongs to the local Government. In general, information which may be desired outside of the purview of the article can only properly be sought through diplomatic channels, subject to the direction and supervision and action of the two foreign offices.
I am, etc.,