Memorandum by the Assistant to the Legal Adviser ( Ward ) to Mr. Eugene H. Dooman of the Division of Far Eastern Affairs

The following informal observations are submitted in regard to the several inquiries contained in the informal memorandum from the Japanese Embassy, attached hereto,39 relating to certain provisions of the treaty between the United States and Germany concluded December 8, 1923. The observations are numbered to conform to the numbers of the inquiries in the memorandum.

II (2) (a) It would seem to be difficult to formulate a clearer or more comprehensive interpretation of the word “inviolable” as used in Article XX of our treaty with Germany than the language of the second paragraph of that article, which reads as follows:

“The consular offices and archives shall at all times be inviolable. They shall under no circumstances be subjected to invasion by any authorities of any character within the country where such offices are located. Nor shall the authorities under any pretext make any examination or seizure of papers or other property deposited within a consular office. Consular offices shall not be used as places of asylum. No consular officer shall be required to produce official archives in court or testify as to their contents.”

The quoted language permits of no exception whether on the plea of “urgent necessity” or otherwise and it appears to be clear that the provisions of Article 131 of the “Specimens of Judicial police service” referred to in the note from the Japanese Embassy are irreconcilable with the provisions of the treaty under reference insofar as concerns consular offices and consular archives.

It will be noted, however, that the quoted provision prohibits the “invasion” of consular offices and archives. It would not be an “invasion” of the consulate if the local authorities were invited to enter the consular office to prevent the execution of a crime or to arrest a person who had unlawfully entered the consulate. The local authorities could not, however, forcibly enter the consulate against the wishes of the officer in charge without violating the treaty provision in question.

It is hardly necessary to add, however, that the treaty provision under reference would not be likely to be invoked by any government to prevent the performance of any necessary official function not inconsistent with the purpose and spirit of the treaty.

II (2) (b) Strictly interpreted, the provision of Article XX of the German-American treaty, to which this inquiry of the Embassy [Page 1059] relates, supports the view expressed by the Embassy to the effect that the words “other property deposited within a consular office” refers to all and any property of every description placed within a consular office and is not limited to the property which has to do with the conduct of consular business. Article III of the Franco-American Consular Convention of 1853,40 providing for inviolability of consular offices, apparently was so interpreted by both the American and French Governments in a case involving the acceptance by the American Consul at Nice of private property of an American citizen in order to prevent its attachment in legal proceedings. Upon request of the French Government the Government of the United States instructed the Consul to return the property to its owner and to notify the French authorities when delivery was to be made (Consular Privileges and Immunities—Stewart, page 37).

It is highly improbable, however, that such a case would now arise in view of the clear understanding of consular officers that the consulate is not to be used as a depository of private property not received in connection with a legitimate consular function.

II (2) (c) The Japanese Embassy states its understanding of the word “archives” as used in Article XX of the German-American treaty as not including “mail matter sent by private persons to the consulate and which is still on the way”, and inquires whether that interpretation also applies to “mail matter in transit sent by the government or by governmental agencies”.

I have not found any discussion of this question and I think we should refrain from discussing it with the Embassy. Insofar as concerns private matter deposited in the mail addressed to a consulate and intended to form part of the consular archives, I am inclined to believe that it would not be extreme to suggest that such matter be regarded as part of the consular archives from the time of its deposit in the mail. It is apparent, however, that in the absence of a general agreement on the subject it would be difficult, if not impossible, to obtain recognition for such a doctrine. There would appear to be stronger ground in favor of the adoption of the rule in cases involving the mailing of official communications from a government to its consular representatives but any discussion of that question in the case of official mail appears to be unnecessary in view of the fact that communications from a government to its official representatives in a foreign country are generally regarded as inviolable.

II (4) The words “estates in process of probate” as used in Article XXV of the German-American treaty clearly appeared to include estates in process of administration.

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II (5) The provisions of the federal laws authorizing the performance of notarial acts by diplomatic and consular officers are contained in Section 1750 of the Revised Statutes which reads in part as follows:

“Every secretary of embassy or legation and consular officer is hereby authorized whenever he is required or deems it necessary or proper so to do, at the post, port, place, or within the limits of his embassy, legation, or consulate, to administer to or take from any person an oath, affirmation, affidavit, or deposition, and to perform any notarial act which any notary public is required or authorized by law to do within the United States. Every such oath, affirmation, affidavit, deposition, and notarial act administered, sworn, affirmed, taken, had, or done, by or before any such officer, when certified under his hand and seal of office, shall be as valid, and of like force and effect within the United States, to all intents and purposes, as if administered, sworn, affirmed, taken, had, or done, by or before any other person within the United States duly authorized and competent thereto.…” (Title 22, Section 131, U. S. Code)

The authorization contained in the above quoted provision must be regarded, however, as limited in legal effect to territories or agencies under the control of the Government of the United States and not binding in the several states except in conformity with applicable state laws or judicial decisions.

II (6) (a) This inquiry in regard to the meaning given to the word “misdemeanor” in the several states could be answered authoritatively only by an examination of the provisions of the laws of the several states, which does not appear to be essential for the consideration of the inquiry. It is suggested, therefore, that the Embassy be informed that an examination of a somewhat representative group of states discloses that the laws of all of the states considered define felonies as crimes punishable either by sentence of death or by imprisonment in a state penitentiary, and that all other crimes are characterized as misdemeanors. It is believed that this is the general rule throughout the United States with possibly some few exceptions.

It may be of interest to quote the federal definition of “felonies” and “misdemeanors” which is as follows:

“All offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies. All other offenses shall be deemed misdemeanors.” (Title 18, Section 541, U. S. Code)

I (6) (b) Since the German-American treaty does not provide that the German text of the treaty has any greater authoritative force than the English text, it follows that the English text will be exclusively auhoritative in the consideration of crimes committed in the United States by German consular officers. The English text of Article XX of the treaty leaves no doubt as to the question whether in a particular [Page 1061] case a consul is entitled to immunity from arrest. The pertinent language of the English text reads “shall be exempt from arrest except when charged with the commission of offenses locally designated as crimes other than misdemeanors”. (Underscoring added) By virtue of the quoted provision, if the crime with which a consular officer is charged was defined in the law of the place where the crime was committed as a “misdemeanor”, the consul would be exempt from arrest. Otherwise not. Incidentally it may be observed that the maximum punishment provided in Germany for offenses coming under the definition “Vergehen” is not as severe as the maximum punishment provided for misdemeanors in New Jersey and possibly other states.

While the foregoing observations are believed to be substantially warranted, I am of the opinion that we should refrain from communicating them in definite form, even informally, to the Japanese Embassy. In addition to the fact that the inquiries are based on provisions of a treaty to which Japan is not a party and which may or may not be incorporated in the proposed Consular Convention with Japan, it is proper to observe that the authoritative interpretation of the provisions in the United States is ultimately a matter for determination by the federal judicial tribunals and that administratively the Department of State could not be bound in any authoritative degree by the informal views of the negotiators of this preliminary draft. It would seem to be prudent, therefore, to emphasize that any views which may be expressed on the several questions submitted in the Embassy’s note are informal, unofficial and tentative.41

  1. Not printed.
  2. Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. 6, p. 169.
  3. An attached note by William T. Turner of the Division of Far Eastern Affairs dated July 1 states: “Mr. Kawahara called today and was informed of the sense of the Legal Advisors observations.”