Mr. Hay to Mr. White.
Washington, January 15, 1903.
Sir: I have received your dispatch, No. 1016, of the 31st ultimo, reporting correspondence had with Consul-General Evans and with the foreign office in regard to the application of the consul-general to the attorneys representing the British India Steamship Company for delivery to him of the personal effects of Capt. C. E. Schonberg, a citizen of the United States, who died on board the company’s steamship Manora while on the way from Calcutta to London.
The application of the consul-general to take possession of the estate of Captain Schomberg is based on the authority and prescription of sections 1709, 1710, and 1711 of the Revised Statutes. Sections 1709 and 1711 expressly make the consul’s action dependent on the permission of the laws of the country, and the same condition is implied in section 1710, which provides for transmitting to the Department an inventory of the effects of the deceased “taken as before directed” (in section 1709); that is, taken by the consul if permitted by the laws of the country, or by the proper lawful authority of the country if the consul’s intervention to that end be not permitted.
Mr. Evans’s claim that he, as a consular officer, is by the law of nations and by statute the provisional conservator of the property within his district belonging to his countrymen deceased therein is apparently based on the initial clause of paragraph 409 of the United States Consular Regulations of 1896. That paragraph is not entirely consistent. It goes on to declare that “he has no right, as a consular officer, apart from the provisions of treaty, local law, or usage, to administer on the estate, or in that character to aid any other person in so administering it, without judicial authorization,” and restricts his duties to “guarding and collecting the effects and to transmitting them to the United States, or to aid others in so guarding, collecting, and transmitting them, to be disposed of pursuant to the law of the decedent’s State.” This qualifying limitation upon his powers follows an opinion of Attorney-General Cushing (7 Op. Att. Gen., 274). It implies that the power and duty of the consul to so guard, collect and transmit the decedent’s estate is not exclusive. If those powers are not conferred upon him by treaty, local law, or usage, it is his alternative duty to aid others upon whom those functions devolve under local law. The passage quoted by Mr. Evans to sustain his contention is, [Page 488] in fact, only applicable when the matter is not regulated by treaty or local law.
Section 389 of the Consular Regulations prescribes that “the authority of consuls with respect to the effects of deceased citizens can be exercised, however, only so far as is permitted by the authorities of the country, or is accorded by established usage, or is provided for by treaty or the laws of the country,” meaning the lex loci. There is no treaty stipulation between the United States and Great Britain on this point. Article IV of the treaty of 1815, which is still in force, subordinates the consul’s action to the laws of the country to which he is sent.
Under the circumstances no exception can be made to the position taken by His Majesty’s Government in Lord Lansdowne’s note to you of December 23, which it is presumed you have communicated to the consul-general. The effects of the decedent, having been ascertained to fall in value below the limit taxable with the statutory death duties, have been turned over to the consul-general as a matter of courtesy, thus closing the incident.
A copy of this instruction will be sent to the consul-general for his information.
I am, etc.,