702.6211/1210

The German Chargé (Thomsen) to the Secretary of State

[Translation]
II W XI No. 2

Mr. Secretary of State: By direction of my Government, I have the honor to communicate the following to Your Excellency:

According to reports from various German Consulates in the United States of America, American officials have recently tampered several times with the official mail of the German Consulates. In the cases reported to me, the point involved is that post offices, customs officials or their agents have subjected mail for the German Consulates arriving from abroad to surveillance, that is, they have demanded that such mail be opened in their presence and shown for investigation of its contents.

1. The German Consulate General in New York has reported to me that pieces of mail arriving from abroad, addressed to the Consulate General, have been held up by the American postal authorities since about the middle of June of this year. The postal authorities in such cases have sent the Consulate General a notification of the arrival of the pieces of mail, and at the same time a request to send a representative to the building of the Federal Reserve Bank. The letters received were submitted to such representative in the presence of an official of the Post Office Department or the Federal Reserve Bank with the request that they be opened. If the representative of the Consulate General agreed to this request, the letters were turned over to him, after the official of the Post Office Department or the Federal Reserve Bank had examined the contents of the various pieces of mail.

In the case of almost all of these letters, communications of official tenor to the Consulate General from officials of the German Reich were involved; in one case even a diplomatic dispatch from the Foreign Office to the German Consulate General in New York, closed with the official seal, which, if it too was not finally opened, was at least held up.

2. A similar occurrence took place recently in Los Angeles. There too the German Consulate was called upon, and this time, to be sure, by the customs authorities, to send a representative to open letters [Page 665]received. In the presence of a German official there then took place, at the demand of the American official, the opening of the letters and inspection of the contents of the pieces of mail.

3. The German Consulate in Cleveland received on July 6th a postal card with the request to send a representative to the central post office of that city, in order to receive a registered letter, the contents of which were to be inspected after opening, “in accordance with the known regulations”. The opening of the letter was done at the window by the postal clerk on duty, who examined the contents of the piece of mail.

4. In the middle of June, there arrived in Cleveland a registered letter addressed to the German Consul at that place, with a diplomatic dispatch from the German Foreign Office, which had been sent via the German Embassy in Buenos Aires on account of the unsafe and uncertain direct postal route. The German Consul in Cleveland was requested by a postal card to send a representative to the main post office for receiving the mail or to authorize the postal authorities in writing to open the mail. It was stated to the Chancellor of the Consulate, who thereupon went to the post office, that the letter would have to be opened at the Customs Division of the Post Office, under American regulations. The letter was then opened by the customs officers at the main post office in Cleveland and the contents examined by him.

5. In the middle of June a diplomatic dispatch of the German Foreign Office to the Consulate at St. Louis, which bore a seal of the German Government, was held up by the American customs authorities in St. Louis. The customs office stated that it had the right to hold up this piece of mail for the purpose of determining whether its contents had any commercial value. When the Consulate called attention to the contrary provisions of Article XXVII of the German-American Treaty of Friendship, Commerce and Consular Rights,1 the official stated that he could first require the Consulate to make application for release to the Department of State, through the Embassy. Not until after long delay did the customs officer give up his arguments and turn over the piece of mail to the German Consulate.

The German consular officers concerned have refrained from refusing to accept the mail that has been held up, merely in order to avoid a considerable disturbance of the work of their offices.

By direction of my Government, I submit the most emphatic protests against these interferences with the official postal communication of the German Consulates in the United States. It is a generally recognized principle resulting from the mutual acceptance of consular officials (that is, official representatives of a foreign government in one’s own national territory), that the consulates cannot be subjected, in their official communication with the authorities of their own state, as well as with private persons inside and outside the country, to any surveillance in the form of a search of their mail. That is a [Page 666]natural prerequisite for the performance of the duties entrusted to them, which they perform with the consent of the country to which they are admitted. That this principle is valid also according to the American view is shown by the statement in the work by Julius J. Puente: The Foreign Consul—His Juridical Status in the United States, in which it is stated under the heading of “Inviolability of official mail”:

“As the organ of a foreign power in commercial and administrative matters a consul has the undoubted right to communicate with the governmental agencies of his state. So long as the communications are of an ‘official’ character, this right is held to be inviolable.[”]

“The official mailbags and pouches of a consular officer are inviolable; also the communications exchanged between the diplomatic and the consular officers of the appointing state.”

“One of the objects of the institution of consuls being to watch over the rights and interests of his citizens or subjects wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, it is but natural that the consul should have the right to communicate freely and inviolably with his nationals within the consular district over which he presides. The denial of this right would hamper the consul considerably in any effort to determine whether the common or conventional, personal and proprietary rights or interests of those nationals have been violated. To take from this class of correspondence the stamp of inviolability, would, moreover, offer the local authorities the opportunity, whenever the exigency of the situation required it, to intercept any communication tending to disclose abuse and injustice on their part.”

Without the recognition of the inviolability of the official mail of a foreign consulate, the exercise of its official functions would be prejudiced most decidedly.

I have been instructed by my Government to declare that pieces of mail intended for the American Consuls in Germany are not subjected to any examination or search and that the American Consuls receive all mail without inspection. In this connection I have pointed out that the consular privileges under Article XVII, paragraph 2, of the German-American Treaty of Friendship, Commerce and Consular Eights of October 14, 1925,2 are granted reciprocally, that is, on the assumption of reciprocity. The action of the American authorities against mail arriving from abroad and intended for the German Consulates in the United States would therefore justify corresponding action of the German authorities with regard to the foreign mail of the American Consulates in Germany. Further, in the above-mentioned paragraph 2 of Article XVII, all rights, favors, exemptions and immunities are granted to the consular officers of [Page 667]the two contracting parties that are enjoyed by the officers of the same grade of the most favored nation. In this connection it is to be remarked that the Order of the Secretary of the Treasury of June 6, 1940, which the American postal and customs authorities have invoked in the cases discussed above, in holding up and searching official mail of the German Consulates, was expressly declared by the Secretary of the Treasury not to be applicable to France, Great Britain, Canada, Bermuda and Newfoundland. The most-favored-nation treatment of the German Consulates in the United States provided by paragraph 2 of Article XVII is therefore violated, as the postal communication of the consulates of the above nations existing in the United States with their home country remains without surveillance. It is further violated so far as any foreign consulates receive the mail addressed to them from abroad without inspection.

The fact that among the pieces of mail held up by the American postal and customs authorities and in some cases even opened by them there are also diplomatic dispatches of the Foreign Office to German Consulates, which were plainly indicated as such by the official seal of the Foreign Office, also makes the interference of the American postal and customs authorities a violation of diplomatic immunity.

By direction of my Government I therefore take the liberty of expressing the hope that the American Government will take the necessary steps to stop the tampering of the American postal and customs authorities with mail addressed to the German Consulates in the United States. I should be grateful to Your Excellency if I were promptly favored with a communication regarding this, which I can transmit to my Government.

Accept [etc.]

Thomsen
  1. Signed at Washington December 8, 1923, Foreign Relations, 1923, vol. ii, pp. 29, 43;.
  2. This was the date of exchange of ratifications of the treaty signed December 8, 1923.