Minister Combs to the Secretary of State.

No. 241.]

Sir: I have the honor to inclose copies of the correspondence between the American consul-general and myself respecting a recent unpleasant experience of his in one of the local courts.

As he justly remarks, the question is an important one.

In my reply I sought to advise the most useful attitude on his part that international law and the precedents I could find would justify.

* * * * * * *

The minister of foreign affairs, referring to my note of the 6th instant, told me yesterday afternoon his government greatly regretted the occurrence and I could rest assured the judge would be severely reprimanded. I suggested that of course he would inform me officially, of so commendable an attitude, and he replied, certainly.

* * * * * * *

I have, etc.,

Leslie Combs.
[Inclosure 1.]

Consul-General Winslow to Minister Combs.

Sir: I have the honor to report that on Tuesday, January 31, 1905, I called upon Mr. Eliseo Solis, fourth judge of the first instance, in the interest of Mr. Joseph Darling and Mr. Juan Fisher, who had been arrested the day before and who were being examined at the time of my visit.

I first asked the judge if I might be present at the examination, and he replied that I could not, as it was contrary to law. Then I asked him if he would be kind enough to send me a report of the result of the examination, and he said that they were secret documents. I then asked him how long they would be kept secret, and he replied, as long as necessary. He further stated that he was not under obligations to confer with me in these matters, because consuls were only commercial agents. I told him that I was very sorry that he took that stand, for I was obliged to take exception to it, and that I should be compelled to carry the matter up if he insisted, for the citizens of the United States must be protected. His reply was that he insisted upon his position.

I feel this is a very important matter and one that should be definitely settled. I am very much surprised that I should be so very abruptly dismissed when the regulations of the Guatemalan Government to its consular officers require them to take exactly the position I contended for in this case.

Further, in support of my position, I call attention to a somewhat similar case in Foreign Relations of the United States for 1897, pages 395 to 398, where the Department of State held that consular officers were entitled to courteous treatment by the courts and that they [Page 518]should be given such information regarding American citizens before said courts not forbidden by law, since it was the duty of United States consular officers to protect the persons and interests of American citizens.

I also call attention, in support of my position, to paragraphs 170 and 171 of United States Consular Regulations of 1896, which are certainly very plain and forceful.

Also to Department circular of August 25, 1898, addressed to consular officers of the United States in Mexico, Central America, and South America.

I am, etc.,

Alfred A. Winslow.
[Inclosure 2.]

Consul-General Winslow to Minister Combs.

Sir: I have the honor to report further in regard to my No. 105, of even date with this, in the matter of the position taken by Mr. Eliseo Solis, fourth judge of first instance, that I have no right to appear before the courts or to communicate with the court in behalf of American citizens.

I just sent him two communications by my clerk, who presented them to him, requested him to receipt for them, which he refused, with the remark that they might contain United States gold and he would be responsible for it. At this my clerk requested him to open the envelopes before receipting, but he refused.

I take this as an insinuation, which I most assuredly resent, and I trust you will make a strong representation of the matter to the government, for I have always been very courteous to the judges of all the courts with whom 1 have had business.

Then, if I am to be turned down by every petty local official, I can be of very little use to American citizens who are in trouble, and there is an outlook for more of it in the future than in the past, from the number of Americans coming to this country.

I am, etc.,

Alfred A. Winslow.
[Inclosure 3.]

Minister Combs to Consul-General Winslow.

Sir: I am in receipt of your notes numbered 105 and 107, recounting some experiences you have had with the fourth judge of first instance in this city.

* * * * * * *

The Department of State, Mr. Sherman, Secretary, in the correspondence growing out of the Doane arrest, to which you refer in support of your position, used the following language:

“The Department is perfectly aware that the proceedings of first instance under the general code of the countries deriving their procedure from the Roman law are analogous in their nature to the inquest of a grand jury under the common law of Saxon nations and that precise information in respect to and formulation of charges against a prisoner are not communicable in the preliminary stages; but this does not preclude a respectful inquiry from a consul as to the general nature of the offense charged or as to the status of a pending case. To make such an inquiry is deemed by this government to be one of the ‘regular good offices which the legitimate interests of their compatriots may demand.’”

In instruction No. 146, dated November 24, 1904, addressed to me, after commending the treatment of a number of typical cases of American citizens imprisoned in Guatemala, the Department goes on to state: “With reference to any action of this kind that might be taken by you, you should of course make no demand inconsistent with the requirements of the constitution and laws of Guatemala regulating the subject of arrest and trial and admission to bail.” And again: “In taking action along the lines suggested in your dispatch, you will of course carefully study the constitution and laws of Guatemala in that behalf and make no demand inconsistent with those laws or inconsistent with the actual interests of retributive justice.”

These expressions from the State Department seem to me to clearly state the limits of action on your part which can, under international law, be maintained.

I do not think it wise to bring this question to an issue with the Guatemalan Government.

I advise you to continue the efficient course you have heretofore followed and which is marked by the consular instructions you quote, feeling sure that with tact and courtesy you [Page 519]can accomplish more for American interests in these cases than would result from a strict demarcation of your rights under international law applied to the laws and constitution of Guatemala. From your oral communication respecting the same facts I understood that the judge used polite language in stating his position. In your No. 107, however, you recite an incident which to my mind can be taken up in its concrete form for representation to this government.

* * * * * * *

In the conduct complained of Mr. Eliseo Solis seemed to be lacking alike in official duty and social courtesy. You I have, I take it, an unquestionable right, and it is your unquestionable obligation, to investigate any arrest of an American citizen, to information as to the general cause of arrest, and to courteous treatment and replies in the discharge of such duties.

I am, etc.,

Leslie Combs.
[Inclosure 4.]

Minister Combs to the Minister for Foreign Affairs.

Mr. Minister: I have the honor to forward a complaint of the American consul-general against the conduct of Mr. Eliseo Solis, the fourth judge of the first instance of the city of Guatemala.

In the course of an investigation, conducted by the American consul-general at my request, he had occasion to address two communications to this judge. The treatment they received is described by the American consul-general as follows: “I just sent him two communications by my clerk, who presented them to him, requesting him to receipt for them, which he refused, with the remark that they might contain United States gold and he would be responsible for it. At this my clerk requested him to open the envelopes before receipting, but he refused.”

I submit to your excellency that such conduct was in violation of official duty and social courtesy and requires prompt and efficacious treatment at the hands of your excellency’s government.

I avail, etc.,

Leslie Combs.