Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I
Chargé Brown to the Secretary of State.
Guatemala, August 16, 1906.
Sir: I have the honor to transmit herewith inclosed a copy of the Guatemalteco, official journal of the Guatemalan Government, dated July 20 last, containing copy of the consular convention agreed to and ratified by the Guatemalan Government and Italy through its minister in this Republic.
I have, etc.,
Official Executive Authority—Office of Foreign Affairs—Manual Estrada Cabrera, Constitutional President of the Republic of Guatemala.
The 13th of November of 1895 the consular convention was composed and signed in this capital by sufficiently authorized plenipotentiaries with the object of determining and extending by the best method possible the reciprocal rights and privileges of the consuls, vice-consuls, consular agents, chancellors, and secretaries, as well as their functions and obligations to which they should be respectively subjected in the two countries, and which says literally:
The President of the Republic of Guatemala and His Majesty the King of Italy, recognizing the utility of determining and extending by the best method possible the reciprocal rights and privileges of the consuls, vice-consuls, consular agents, chancellors, and secretaries, as well as their functions and obligations to which they should be subjected in the two countries, they have determined to stipulate a consular convention, and have named for this purpose as their respective representatives: His Excellency the President of Guatemala, His Excellency the Licientiate Juan Barrios M., Secretary of State in the Department of Foreign Affairs; and His Majesty the King of Italy, His Excellency Mr. Carlo Nagar, officer of the royal orders of the Crown of Italy and of the S. S. Maurizio Lazzaro, his minister resident in Guatemala, who have agreed to the following articles:
Each one of the high contracting parties will have the faculty to name consuls-general, consuls, vice-consuls, and consular agents in the ports, cities, and places of the other, reserving, respectively, the right to except those localities that they judge convenient; but this reservation can not be applied to one of the high contracting parties without being applicable to all the other powers.
The consuls-general, consuls, vice-consuls, and consular agents will be reciprocally admitted and recognized after the presentation of their commissions according to the rules and formalities established in the respective countries. The exequatur required for the free exercise of their duties will be given them without charges; and when said exequatur is presented the superior authority of the place of their residence shall immediately make arrangements so that they may be able to comply with the duties of their charge and enjoy the exemptions, prerogatives, immunities, honors, and privileges that belong to them.
The half-commissioned consuls, be they consuls-general, consuls, vice-consuls, or consular agents, citizens of the state that named them, will enjoy the exemption from military tax and from any other duty or public service as much of a municipal character as any other kind. They will also be exempt from [Page 828]military contributions, from direct contributions, personal as well as sumptuary, and from taxes for the state, for the local authorities, or for the municipality, except if they possess real estate, or if they transact business as a merchant, or any industry or profession, in which cases they will be subject to the same duties, services, and tributes imposed upon the natives.
The consuls-general, consuls, vice-consuls, and consular agents will be allowed to place over the outside door of the consulate, vice-consulate, or consular agency the shield of their nation with this inscription, “Consulate of ———,” “Vice-Consulate of ———,” or “Consular Agency of ———.”
They will also be allowed to hoist the flag of their country over the consular house on public or national holidays, as well as on other usual occasions. They will also have the faculty of hoisting the flag over the boat that conducts them to the port to perform the functions of their charge.
The consular archives will always be inviolable, and the territorial authorities will on no occasion whatever be able to investigate or to sequestrate the papers appertaining to them, but in case of a delinquency the consul, vice-consul, or consular agent is obliged to show to the local authority the original documents that were impugned, so that the authorities themselves may make the necessary investigations. These papers should be completely separated from the books and papers relative to commerce and the industry that the respective consul, vice-consul, or consular agent may exercise.
In case of impediment, absence, or death of the consuls-general, consuls, and vice-consuls, the aggregated, recognized consular agents, chancellors, and secretaries who have already been presented as such to the respective authorities, will be admitted, with full power, according to their hierarchical order, to exercise in the interim the consular functions, without having any obstacle placed in their way by the local authorities.
These should, on the contrary, give them their assistance and protection, and allow them to enjoy, during the temporary discharge of this duty, all of the exemptions, prerogatives, and privileges stipulated in this present convention in favor of the consular agents.
The consuls-general and consuls will be able to name vice-consuls or consular agents in the cities, ports, and places of their respective consular districts, with the approval of the territorial government. These agents may be elected indiscriminately from among the citizens of the two countries, or from among the foreigners, and they will be provided with a commission emitted by the consul that names them and under whose orders they should exercise their duties. They will enjoy the same privileges stipulated in the present convention, excepting the exemptions contained in Article III.
The consuls-general, consuls, vice-consuls, and consular agents will be able to apply to the authorities of their districts to reclaim against any infraction of the commercial agreements or conventions existing between the countries, or against any other abuse of which his compatriots might complain.
The citizens of one of the contracting States will enjoy in the territory of the other the most inalterable protection and security for their persons, their property, and their interests; and they will enjoy in this respect the same rights and privileges that are or will be accorded to the natives, submitting themselves to the conditions imposed upon these last.[Page 829]
They will be, nevertheless, exempt in the States of the other part from obligatory military service, in the army, in the navy, in the national guard, or in the militia, as well as from every kind of contribution, in money or in property, imposed as compensation for personal service, or from any military loan or requisition; excepting those cases when all of the inhabitants of a country, without distinction of nationality, may be called upon to concur in their character as owners or lessors of real estate or in any other capacity as capitalists.
The Government of Guatemala, in the event that it should promote in Italy as well as in other countries, by its own efforts or by concessions made by individuals or by societies, contracts of Italian emigrants for Guatemala, should provide that the proposed contracts be just, and the promises fulfilled, and that the said contracts, if just, be conscientiously executed; it should ascertain that the transport, landing, and establishment of said emigrants take place according to the rules of humanity, hygiene, and safety; it should punish, in conformity with the laws in force, whoever deceives or abuses the emigrant in any way, and should give every assistance to this last, if he is deceived or abused, so that he may be able to collect a proper indemnification.
The citizens of each of the two countries will enjoy in the other civil rights.
For this purpose both contracting parties will recognize their right to possess property, movable or immovable, and also their right to dispose of, by sale, gift, permutation, or by any other legal title, all properties of any nature whatever that they may possess in the respective territories.
They will enjoy equally and reciprocally the right to receive and transmit said goods by succession be it ab intesto, as by will, without being subjected, because they are foreigners, to the payment of any tax or duty that does not burden the natives.
The consuls-general, consuls, vice-consuls, and consular agents of the two countries, or their chancellors, will have the right to receive in their chanceries, in the domicile of the parts, and on board of the ships of their nation, the declarations that the captains, crew, passengers, traders, or any other subject of their country may have to make.
Equally, they will have the right to act as notaries, to receive the testamentary dispositions of their compatriots, and to exercise all of the other notarial duties, except when such duties have the object of oppressing with mortgage property situated in the country to which the consul or the consular agent belongs.
In which case they will apply the especial dispositions in force in the two countries.
Said agents will, moreover, have the right to register in their respective chanceries all the contracts that involve personal obligations between one or more of their compatriots and other persons of the country in which they reside, as well as all of those contracts that, although they are of exclusive interest to the natives of the country in which the stipulation took place, refer to property situated or to business transacted in any place of the nation to which the consular agent belongs and before whom the register of such documents should be effectuated. The testimonies and certificates correctly legalized by said agents, and sealed with the seal of the consulate, vice-consulate, or consular agency, should be credited in the Republic of Guatemala as well as in Italy, and have the same force and value as if they had been agreed to by notaries or some other public functionary of one or the other country, provided that these acts have been extended in the forms required by the laws of the State to which the consul or consular agent belongs, and that the documents were afterwards sealed, registered, and submitted to all the other formalities in use in the country in which the act was performed. When the authenticity of a public document registered in the chancery of one of the respective consulates is doubted its confrontation with the original document [Page 830]can not be refused, if asked for by the person interested, and also this person may assist at the confrontation if he deems it advisable.
The respective consuls-general, consuls, vice-consuls, and consular agents will be able to translate and legalize all kinds of documents sent to them by the authorities or functionaries of their countries. These translations and legalizations will have in the place of making the same and value as if they had been accomplished by local interpreters.
In case of the death of any subject of one of the contracting parties in the territory of the other, the consul-general, consul, vice-consul, or consular agent in whose district the decease occurred, should he hear of it first, must immediately advise the local authorities. When a Guatemalteco dies in Italy or an Italian in Guatemala without having made a will or named a testamentary executor; or if the legitimate or testamentary heirs are minors, incapable or absent; or if the testamentary executors named are not to be found in the place where the succession is begun, the consuls-general, consuls, vice-consuls, or consular agents of the nation of the deceased will have the right to proceed successively with the following operations:
First. At the petition of the interested parties put the seals of office on all of the movable possessions and papers of the deceased, allowing the competent local authority to assist and to affix their own proper seals. These seals, as also those of the consular agent, should not be removed except in the presence of the local authority.
Second. Form an inventory of all of the possessions of the deceased in the presence of the local authority if in consequence of the referred to notice these should think it proper to assist.
The local authorities will put their signatures to the documents made out in their presence without exacting any privileges whatever for their intervention.
Third. Dispose of by sale or by public auction all of the movable possessions that could deteriorate and those that it would be difficult to save, also the crops an deffects for whose disposal favorable circumstances are presented.
Fourth. Deposit in a secure place the effects and values comprised in the inventory; keep the amount due the creditors that is collected and the proceeds of the income received at the consular house, or commit them to the care of some merchant who presents a good guaranty.
Such deposits should be effectuated in every case, in concurrence with the local authority that intervened in the preceding operations, when, after the summons mentioned in the following paragraph, subjects of the country or of a third power present themselves as interested in the testamentary execution, ex testamen to, or ab intestato.
Fifth. Announce the death, by means of the newspapers of the place or of the country of the deceased if necessary, and state to the creditors that they must present their respective documents, correctly legalized, in the time fixed by the laws of the place.
When creditors appear, whether the deceased left a will or died intestate, the payment should be effectuated within the limit of fifteen days after the closing of the inventory, if funds exist that can be used for this purpose, and if not as soon as the necessary amount has been liquidated by the most convenient method; or lastly until an understanding has been established between the consuls and the larger part of the ones interested. If the respective consuls refuse to pay the creditors entirely or in part, taking too little away from the inheritance to satisfy them, the creditors may, if they think it to their interests, ask the competent authority for permission to institute proceedings.
Such permission being obtained by the established legal method in each of the two countries, the consuls and vice-consuls should immediately deliver to the judicial authority or to the recorder of the proceedings, as the case may be, all of the documents, effects, and values of the deceased, and the aforesaid agents will now represent the heirs—absent, minor, and incapable.
In any case the consuls-general, consuls, and vice-consuls will deliver the inheritance or its proceeds to the legitimate heirs or to their agents after the limit of six months from the day that the death notice was published in the newspapers.
Sixth. Administrate or liquidate the inheritance himself or through some person acting under his orders, without the intervention of the local authorities, except when subjects of the country or of a third power attempt to make valid [Page 831]rights to said inheritance; in which case, if difficulties arise proceeding from, some reclamation that gave occasion for contention between the parties, the consuls-general, consuls, or consular agents not having the right to decide it, the court of justice of the country whose function it is to settle such disagreements should decide the same.
The said consular agents will also act as representatives of the inheritance, testamentary or ab intesto; that is to say that while they preserve the right to definitely liquidate the inheritance and also to advertise the effects for sale in the time limit above specified, they will protect the interests of the heirs, with the right of choosing the lawyers in charge of the case, it being understood they will show all of the papers and documents proper to clear up the question when the sentence is pronounced, and if there is to be no appeal the consuls, vice-consuls, and consular agents should perform it, and should moreover continue with full power the liquidation that was suspended during the controversy.
Seventh. Constitute, when the case demands it, the guardianship and tutelage, of wards of the estate according to the laws of the countries.
If a Guatemalteco should die in Italy or an Italian in Guatemala, in a place where there was no consular agent of his nation, the competent local authority should proceed according to the legislation of the country to take an inventory of his effects, to liquidate his existing property, and to give in the briefest terms possible an account of the result of this operation to the respective embassy or legation or to the consulate or vice-consulate nearest to the place in which the death occurred. Moreover, the local authority should not interfere after the appearance of the nearest consular agent or his delegate at the place where the death occurred, except in conformity with the rules in Article XII of this present convention.
The subjects of each one of the parties will have free access to the courts of justice to make valid and to defend their rights, without other conditions, restrictions, or rates outside of those imposed upon the natives. They will have besides as much right as the natives to choose freely their defenders and agents and to assist at the audiences, debates, and sentences of the courts that might affect the business in which they are interested, as well as to be present at the examination and depositions of the witnesses that might be of importance to them for the same reason, except when the laws of the country do not permit the publicity of such acts.
They will enjoy, likewise, gratuitous judicial assistance in the same cases and in the same conditions under which the laws of the country bestow similar benefits on the natives.
In each case the certificate of indigence should be given to the subject that, asks for assistance, by the authorities of his habitual residence.
If the postulant does not reside in the country where the demand should be legalized, by a diplomatic or consular agent of the country in which the certificate should be presented.
If he does reside in the country in which the demand is made, further in-, formation may be solicited from the authorities of his nation.
The indigent subjects of the two countries will be assisted and treated with entire reciprocity according to the laws of the respective States.
The consuls-general, consuls, vice-consuls, or consular agents should comprehend the making of inventories and other operations practiced for the conservation of the hereditary estates left by the passengers or sailors of their nation who died on land or on board of the ships of their country during the passage or in the port of arrival.
The consuls-general, consuls, vice-consuls, or consular agents may go personally or send a delegate on board of the ships of their nation, already [Page 832]admitted to free pratique, to interrogate the captains and the sailors, to examine the navigation papers, to receive the declarations respective to the voyage and incidents of the passage, to extend the manifests and facilitate the clearing of the ships, and finally accompany the officers before the courts and to the administrative offices of the country to serve them as interpreters and agents in the business that they may have to transact, or to assist them in presenting petitions.
In all that concerns the business of the ports—the loading and unloading of the ships and the security of the merchandise, goods, and effects—the laws, statutes, and rules of the country should be observed. The consuls-general, consuls, vice-consuls, and consular agents will be exclusively in charge to maintain interior order on board the merchant ships of their nation; and they should understand the questions that arise between the captain, the officers, and the sailors, and especially those relative to the salary and to the accomplishment of their contracts reciprocally stipulated. The local authorities will not be able to interfere except when the disorders that occur on board of the ships are of such a nature as to perturb the tranquillity or the public order on land, or in the port, or when a subject of the country, not one of the crew of the ship, is complicated in the disorder. In all other cases the authority will only help the consuls, vice-consuls, or consular agents when they solicit aid to arrest some one of the persons whose name is on the list of the crew, when they deem it necessary.
The consuls-general, consuls, vice-consuls, and consular agents may arrest and send on board the sailors or any other persons who form part of the crew of the merchant or war ships of their nation who have deserted to the territory of the other State. With this object in view, they should apply by letter to the competent local authority and justify their complaint with an exhibition of the register of the ships, or list of the crew, or an authenticated copy of or extracts from documents to prove that the claimed persons really formed part of the crew.
When such a demand properly proven is presented, the delivery of the deserters can not be refused. On the contrary every assistance should be given to said consular agents for the prosecution and arrest of said deserters.
The high contracting parties agree that the sailors or other persons of the crew, subjects of the country where the desertion takes place, are excepted from the stipulations named in the present convention.
If no other convention exists between the recruiters, freighters, loaders, and underwriters, the damages, suffered during the navigation of the ships of the two countries, whether they entered the respective ports voluntarily or were anchored by force, will be attested to the consuls-general, consuls, and vice-consuls of the respective nations, except when the subjects of the country where the said consular agents reside or subjects of a third power are affected by the loss, in which case, and in defect of an amicable settlement between all of those interested, it should be attested to by the local authority.
In case a ship appertaining to the Government or to subjects of one of the high contracting parties should be wrecked or run aground on the coasts of the other, the authorities must inform the consul-general, consul, vice-consul, or consular agent of the district, or, if there are none, the nearest consul-general, consul, vice-consul, or consular agent to the place of the disaster.
All of the operations relative to the saving of Guatemalan ships that are wrecked or run aground in the territorial waters of Italy should be directed by the Guatemalan consuls-general, consuls, vice-consuls, or consular agents; and reciprocally all of the operations relative to the saving of Italian ships that are wrecked or run aground in the territorial waters of Guatemala should be directed by the Italian consuls-general, consuls, vice-consuls, or consular agents. The local authorities of the two countries will interfere only when called upon to assist the consular agents in maintaining order, to guarantee the interest of the foreign rescuers, and to assure the execution of the commands [Page 833]that should be observed for the entrance and exit of the saved merchandise.
In the absence and until the arrival of the consuls-general, consuls, or their delegates, the local authorities should take all of the necessary precautions for the protection of the persons and the conservation of the effects that have been saved from the wreck.
This intervention of the local authorities will not give them the right to privileges of any kind, except those to which the national ships would be subjected in like cases, and the reimbursement of the expenditure caused by the operations of saving and preserving the goods and merchandise.
In the case of doubt as to the nationality of the wrecked ships, the precautions mentioned in the present article will be the exclusive duty of the local authority.
The high contracting parties agree, moreover, that the merchandise and effects saved will be subject to no custom-house duties, at least if they are admitted for interior consumption.
It is agreed, moreover, that the respective consuls-general, consuls, vice-consuls, and consular agents, as well as the chancellors, secretaries, and ex-consuls, will enjoy all of the exemptions, prerogatives, and privileges actually or about to be conceded, and that these concessions should be reciprocal and should not refer to denounced treaties and conventions.
If the articles contained in this convention are lacking or insufficient, further information should be sought from the general principles of international law or from the international customs, always observing the strictest reciprocity.
The present convention will remain in force for the space of ten years, counting from the day on which the ratifications are exchanged; but if neither of the high contracting parties has announced to the other one year before the expiration of this term the intention of canceling the agreement, it will continue in force until one year after the aforementioned declaration is made.
The stipulations contained in the preceding articles will be exercised in the two States immediately after the exchange of the ratifications.
The present convention will be approved by the legislative power, according to the laws of the respective countries, and ratified by the high contracting parties; and said ratification will be exchanged in Guatemala in the limit of eighteen months, or sooner if possible.
In witness whereof the respective representatives have signed the present convention and sealed it.
And the National Legislative Assembly having approve the previously inserted convention, in the decree No. 637, of the 23d of April of the present year, I, using the power that the Constitution has confided to me, do hereby ratify and publish it as a law of the Republic.
In faith whereof, I sign the present ratification sealed with the seal of the Republic and countersigned by the secretary of state, in the department of foreign affairs, in the city of Guatemala, this 2d day of June, 1906.
exchange of ratifications.
The undersigned, reunited in the office of the department of foreign affairs of the Republic of Guatemala, with the object of exchanging the ratifications of the consular convention celebrated between Guatemala and Italy, dated November 3, 1905, for the purpose of determining and extending by the best method possible the reciprocal rights and privileges of the consuls-general, consuls, vice-consuls, consular agents, chancellors, and secretaries, as well as their functions and obligations to which-they should be respectively subjected in the two countries, etc., provided with their full powers, found in due and proper form, have carefully compared the respective ratifications, and, finding them exactly alike, they proceeded to exchange them according to the accustomed rule.