Chargé Boutell to the Secretary of State.
The Hague, September 16, 1906.
Sir: Referring to the departments instruction, No. 23,a of March 31 last, transmitting the certificate of appointment of Mr. Johann Schild, as consular agent of the United States at Padang, Sumatra, Netherlands East Indies, and instructing the legation to “apply to the foreign office for his formal recognition and advise him of the result through the consul at Batavia, Java,” and to Minister Hill’s dispatch, No. 77, of April 17 last, acknowledging the receipt of instruction referred to with its inclosure and stating that on that day application had been made to the foreign office for Mr. Schild’s recognition.
I now have the honor to state that on September 7 the legation received a note, dated September 6, from the minister of foreign affairs, a copy and a translation of which are inclosed herewith, informing the legation of the recognition of Mr. Schilcl and stating that the certificate had been transmitted directly to the party interested.
This information was in the nature of a surprise to the legation, as in the past, whenever the foreign office had been asked to grant an exequatur to a consular officer of the United States in any of the Netherlands colonies, the certificate or commission, as the case might be, had been returned to the legation by the foreign office with the exequatur attached, and had then been transmitted by the legation to the proper official.
As the certificate in this case had been transmitted directly by the Netherlands authorities to an American consular agent without the intermediation either of the legation or the agent’s superior officer, the consul at Java, thus preventing the legation from carrying out the department’s instructions, it seemed proper to me to make inquiries at the foreign office here regarding the reasons for employing the new method of transmission.
I accordingly brought up the matter in an interview with the minister for foreign affairs, and was by him referred to the chief of the consular and commercial bureau, Mr. Panhuys. The minister in doing this informed me simply that he was not familiar with the matter and could himself give me no information. To Mr. Panhuys I then explained that I only desired to ascertain whether the Netherlands Government intended to adopt this new method of transmission [Page 1166] in all similar cases; and, if so, to learn why the change had been made. To this Mr. Panhuys replied without hesitation that his office had recently discovered that in granting exequaturs to United States consular officers in the Netherlands Indies in the past the Netherlands Government, by authorizing the minister of the colonies at The Hague to perform this act, had been unconsciously acting in contravention of Article VII of the consular convention between the United States and the Netherlands, which he said provided that these exequaturs should be granted by the governor-general of the Indies. He then mentioned the practical difficulties and loss of time which would be involved were the certificates sent to India for the granting of the exequaturs, then back to the foreign office for transmission to this legation, and finally back to India by the legation. In reply to a question from Mr. Panhuys as to whether the United States would object to the new method, I said I did not know what view my Government would take, and that I myself had no opinion to express or comment to make; that I was merely seeking information. Mr. Panhuys then stated, speaking, as it seemed to me, with evident authority, that should the method adopted in the case of Mr. Schild’s exequatur appear ill advised to the Government of the United States the Netherlands Government would be perfectly satisfied if the commission or certificate for consular officers in the Netherlands Indies were sent by the legation directly to the consul at Bat a via with instructions to him to ask the governor-general directly to grant the exequatur. I repeated that I had no authority to express an opinion for my Government in the matter, but would communicate the suggestion.
The fact that a chief of a bureau should thus in a measure express the views of his government, as outlined above, made it seem probable, at least, that this matter had been previously discussed with the minister for foreign affairs, and that he had authorized Mr. Panhuys to speak thus, possibly anticipating that inquiry might be made by the American legation. I later ascertained that the consular convention to which he referred as at present applying between the two countries was that of 1855.
On page 787 of the publication entitled “Treaties and Conventions Concluded between the United States of America and other Powers,” Government Printing Office, 1889, which bears the seal of the Department of State on the title page, Article XVI of the convention of 1855 is given. The third paragraph of this article reads as follows:
These vice-consuls, whose nomination shall be submitted to the approval of the governor of the colony, shall be provided with a certificate given to them by the consul under whose orders they exercise their functions.
The convention as printed in the above-mentioned book is prefixed by the elate 1855, followed by an asterisk (see page 765). This refers to a note at the back of the book entitled “Abrogated, suspended, or obsolete treaties,” and in this note, on page 1236, parapraph 6, it is stated “Netherlands, 1855, terminated August 20, 1879, and the treaty of May 23, 1878, takes it place.” Yet on page 774 of the same book the first paragraph of Article XVI of the convention of May 23, 1878, reads as follows:
The present convention shall not be applicable to colonies of either of the high contracting parties, etc.
The publication entitled “Compilation of Trebles in Force,” prepared under act of July 7, 1898, Government Printing Office, 1899, (for which, however, the Department of State, according to the printed slip affixed in the book, takes no responsibility for correctness), states, on page 443, after giving the particulars as to the date of conclusion, ratification, etc., of the convention of 1855—
By this convention consuls were received in the colonies of the Netherlands. It was abrogated August 20, 1879, being superseded by the convention of 1878, etc.
The text of the convention of 1855 is not even given.
On the other hand, the publication entitled “Receuil des Traités et Conventions conclus par le Royaume des Pays-Bas, etc.,” supposed to be the most authoritative collection of treaties entered into by the Netherlands Government with other powers since the year 1813, makes no mention of the convention of 1855 being abrogated by that of 1878, though the texts of both conventions are contained therein.
Further, in the instructions from the department to this legation regarding the convention of 1878, given during the years 1878 and 1879, and on file at this office, I can not find any reference to the convention of 1878 abrogating the former one.
I have, therefore, the honor, first, to submit the reasons as above stated for this legation’s inability to carry out the instructions of the department regarding the transmission of Mr. Schild’s certificate of appointment; and, second, to request information from the department as to whether the statements contained in the two American publications referred to above are correct, and, if so, that the legation be advised of the present convention, if any, which now governs our consular relations with the Netherlands colonies, as, so far as I can ascertain, no record of any such convention is on file here.
I have, etc.,
- Not printed.↩