812.203/6

The Ambassador in Mexico (Clark) to the Secretary of State

No. 389

Sir: With reference to the Department’s instruction number 79 of January 27, 1931 (file number 812.203/4 [812.203/5]), and to previous correspondence concerning the action of the Military Prosecutor at Guaymas, Sonora, in ordering the American Vice Consul at that place, Mr. A. F. Yepis, to give testimony in a hearing conducted by the Prosecutor at Guaymas on November 5, 1930, I have the honor to transmit herewith, for the Department’s information, a copy and translation of note number 5571 dated April 18, 1931, which has been received from the Foreign Office in reply to the Embassy’s note number 179 of February 2, 1931, giving textually the representations contained in the Department’s instruction under reference.

The Department will note from the enclosures to this despatch that the Mexican Foreign Office expresses the view, with reference to the Prosecutor’s order to Vice Consul Yepis to testify in this case, that compliance with a request of this nature is optional.

Respectfully yours,

J. Reuben Clark, Jr.
[Enclosure—Translation]

The Mexican Minister for Foreign Affairs (Estrada) to the American Ambassador (Clark)

No. 5571

Mr. Ambassador: There was received in this Ministry Your Excellency’s courteous note number 179, dated February 2nd last, regarding [Page 707]the case of the Vice Consul in chargé of the American Consulate at Guaymas, Sonora, who was summoned to appear before the Agent of the Military Department of Justice in connection with the investigation launched with respect to the revolutionary events which took place in 1929. Your Excellency states that the abovementioned Vice Consul appeared before the authority who notified him and made certain statements based on official data existing in the archives of the Consulate; Your Excellency adds that, since it was a matter in which Mexican political affairs and the disclosure of official reports of the Consulate were involved, you have received instructions to advise me that the American Government is of the opinion that, in accordance with the prevailing practice, the Agent of the Department of Justice should have invited the Vice Consul in writing to testify, informing him as to the purpose of the investigation and fixing a date for the giving of his testimony which would have permitted the Vice Consul to consult his Government in the matter.

It is also stated in the said note that Your Excellency’s Government would in this case have authorized the Vice Consul to testify.

Lastly, it is recognized, in the note to which I am making reply, that this action emanates from a subordinate military authority, but it is considered pertinent to call my Government’s attention to the matter.

In reply, I should inform Your Excellency that my Government expressed its point of view in the premises when it signed—as did the Government of the United States at the Sixth Pan American Conference—the Convention relating to Consular Agents,9 based on the principles universally accepted in this respect and stipulating that in criminal trials the prosecution (Sp., la acusación) may request the presence of Consular Agents as witnesses, which request should be made with (all) possible respect for consular dignity and for the duties of that office, and shall be complied with by the consular Officer. Although not establishing any exact rule, it is evident that the recommendation to proceed in a manner compatible with consular dignity may be interpreted in the sense that the request should be in writing.

As for the obligation to testify regarding acts or facts (Sp., hechos) which have come to the knowledge of the Consular Agent by reason of his official character or which may be found in the archives, my Government fully concurs with (Sp., abunda en: literally, abounds in) the idea of Your Excellency’s Government that compliance with a request of this nature is optional.

Your Excellency’s Government justly recognizes that this is a case involving authorities whose familiarity with international courtesies is not probable; on the other hand, the American Consular Agent, by virtue of his office, could more easily point out to these authorities [Page 708]that in his opinion (such procedure) constituted a possible violation of the usual rules governing such cases.

I avail myself [etc.]

G. Estrada
  1. Signed at Habana, February 20, 1928, Foreign Relations, 1928, vol. i, p. 598.