The Secretary of State to the Minister in Canada (Robbins)

No. 27

Sir: In response to the Legation’s despatch, dated July 19, 1933, concerning the case of George Giller, alias John O’Brien—I enclose herewith copy of a letter dated July 28, 1933, and its enclosures48—received from the Director of the Bureau of Prisons. Included is a copy of the regulation in force in the United States penal and correctional institutions—authorizing foreign consular representatives to visit their nationals. The regulation reads as follows:

“Whenever it has been determined to the satisfaction of the warden that a prisoner is a citizen of a foreign country, visits by the consular representative of such foreign country, or other duly accredited delegates having legitimate business with such prisoner, shall be permitted by the warden at reasonable hours. This privilege shall not be withheld even though the inmate is undergoing punishment by solitary confinement or under other disciplinary control.”

You will observe how clear and explicit our own Federal rule is. It is considered to be consonant with the practice of all modern nations. Even without such rule however—such right would be quite generally conceded in our Federal and State penal institutions as well so far as this Department is informed.

Precedents are abundant. William H. Seward, Secretary of State, issued an instruction to Mr. Burton, American Minister to Colombia, on January 29, 1862, as follows:

“It seems to us only reasonable that when any person being a prisoner alleges, with apparent probability, that he is an American citizen, that the acting political authorities in New Granada should allow him to be visited by the consul of the United States, to the end that, the fact of his citizenship being verified, the consul may lend his good offices or bring his case before this government. In such a case it would be proper for you to bring the subject formally to the notice of the authorities, if you had been duly received, and if not then to do it informally while the question of your admission to your position is in abeyance.” (5 Moore, Int. Law Dig., 101.)

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The Claims Commission, United States and Mexico, in the Faulkner case, on November 2, 1926, said:

“The allegation of the claimant (allegation d) that he was not allowed for several days to communicate with his consul would, if proven, also have weight with the Commission. The Commission holds that a foreigner, not familiar with the laws of the country where he temporarily resides, should be given this opportunity. It is not clear, however, from the record when and how the liberty to communicate was given the claimant; his letter of October 4, 1915, to the consul appearing, from its wording, not to have been the first communication tendered.” (Claims Commission, United States and Mexico, 1927, pages 86, 90.)

In Borchard’s Diplomatic Protection, page 437, appears the following statement:

“One of the consul’s most usual duties is to address the local authorities on behalf of his fellow-citizens accused of crime or imprisoned, to support these persons in their right to due process of law, to secure all necessary information concerning their welfare, and to visit them, if proper. Being often nearest to the scene of action, the protective function in first instance is frequently exercised by the consul rather than by the diplomatic representative. Only if prevented from fulfilling his duties of protection, in cases where communication with the central government is required, need he address the diplomatic representative accredited to the country, although, as a matter of fact, in every case of more than trifling importance the consular officer either directly informs the legation of the facts or forwards to the legation a copy of dispatches sent to the Department of State.”

The Draft Convention regarding the Legal Position and Functions of Consuls prepared by the Harvard Research in International Law contains the following provision regarding consular functions:

“To communicate with, to advise and to adjust differences between nationals of the sending state within the consular district; to visit such nationals especially when they are imprisoned or detained by authorities of the receiving state; to assist such nationals in proceedings before or relations with such authorities; and to inquire into any incidents which have occurred within the consular district affecting the interests of such nationals.” (Article 11 (d), Research in International Law, Confidential Copy of Preliminary Draft Conventions to be considered at the Meeting in February, 1932, p. 543.)

In the comments that follow this provision, it is stated:

“The opportunity to visit nationals personally may be essential if the consul is to give them effective protection, especially if they are imprisoned. This function may be exercised especially during a period when the person is held incommunicado. Opportunity for such visit is provided in the treaty between Germany and Russia (1925, protocol to article 11, section 1) and has been claimed in diplomatic correspondence (Secretary of State Seward to Lord Lyons, British Minister, July [Page 86] 26, 1861; Secretary of State Seward to Mr. Burton, Minister to Colombia, January 29, 1862; Correspondence between United States and Governor General of Cuba, U. S. Foreign Relations, 1896, pp. 770772, 834, 5 Moore’s Dig. 101, 104–105). Opportunity of a person imprisoned to communicate with his consul has been recognized as a right of the person by the United States and Mexico general claims commission (U. S. (Walter H. Faulkner) and Mexico November 2, 1926, Opinions of Commissioners, 1926, p. 86; 21 American Journal of International Law (1927), 349; MacNair and Lauterpacht, Annual Digest of Public International Law Cases, 1925–1926, p. 295).” (Ibid., p. 546.)

On July 24, 1861, the British Minister, Lord Lyons, applied to Secretary of State Seward for an order to allow the British Consul at Baltimore to visit a British subject then held as a prisoner at Fort McHenry. On July 26, 1861, Mr. Seward replied:

“I have the honor to acknowledge the receipt of your communication of the 24th instant in which application is made for an order to allow Her Britannic Majesty’s Consul at Baltimore to visit Thomas C. Fitzpatrick, a British subject now held as a prisoner at Fort McHenry.

“In reply, I have the honor to state, that the Secretary of War to whom the matter was referred, has acceded to the request, and I now have the honor to enclose to you the necessary order.” (MS. Notes to Great Britain, 8, 470.)

On June 18, 1896, Gen. Fitzhugh Lee, Consul General of the United States at Habana, was instructed to ascertain and report upon the health and welfare of an American citizen confined in the Cabana fortress. In his reply of June 30, 1896, Gen. Lee stated that he had communicated with the Governor and Captain-General of Cuba in regard to the case, and that the latter—

“… replied that the prisoner is in good health, and that I may visit him, or any other American prisoner under confinement, by giving one day’s notice beforehand, so that the prisoner may be in the guardroom nearest to the entrance of the fortress at the time of my visit, which, it is expected, will be at 8 a.m.” (Foreign Relations, 1896, 834.)

Certain persons in New York having sent a draft for money to Mr. Williams, Consul General of the United States at Habana, for delivery to an American prisoner in the Cabana fortress, the Department instructed the Consul General that he might, with the knowledge and assent of the authorities, deliver the proceeds of the draft. In his despatch of August 17, 1895, the Consul General reported the delivery of the proceeds of the draft and stated:

“Prior to taking chargé of the negotiation of this draft, I made a visit, in pursuance of the Department’s suggestion, to the Acting Governor- General, General Arderius, to give him a statement of its source, and to ask and obtain his consent for the delivery of its proceeds to Mr. Sanguily. The general readily and cordially consented, with the remark [Page 87] that my application first for the consent of the authorities was the correct course in the matter on the part of this consulate-general.” (Ibid., p. 772.)

The Department concurs in the recommendation that immediate intervention on Giller’s behalf is not desirable at this time and has instructed the Consul at Kingston to follow developments in the case and to report to the Department when the trials of the rioters at the penitentiary are terminated.

Very truly yours,

For the Secretary of State:
Harry F. Payer
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