Mr. Porter to Mr.
Hay.
Embassy
of the United States,
Paris, May 19,
1900.
No. 667.]Sir: Referring to previous correspondence
touching the violation of the consular dwelling of Mr. Tourgée, our
consul at Bordeaux, and particularly to your No. 757, of April 9, asking
what is the present status of the matter, I have to report that on April
24 I addressed a note to Mr. Delcassé, recalling the question to him and
inquiring whether the French Republic was now prepared to adhere to the
construction given by my Government to the clause of the treaty of 1853
concerning the inviolability of consular dwellings.
A reply came under date of the 15th instant in which Mr. Delcassé states
that, after having consulted his legal counsels and in conformity with
the opinion expressed by them, the Government of the French Republic
considers that, by stipulating in article 3 of the treaty of 1853 that
chancelleries and consular dwellings are inviolable, France intended to
attribute the great privilege of inviolability only to the offices and
to the dwellings of the consuls in the place of their official
residence—that is to say, in the city where, according to the terms of
their exequatur, they are admitted to discharge their functions.
The minister then goes on to state that the fact that the exequatur
extends the jurisdiction of a consul beyond the limits of the city which
is his official residence has only for object of determining where he is
competent to act officially. Mr. Delcassé insists particularly on this
consideration, that, if the treaty was read as we read it, American
consuls in France and French consuls in the United States would be
vested with privileges which belong only to the diplomatic
representatives of the two countries.
I inclose a copy and a translation of Mr. Delcassé’s note, together with
a copy of mine of April 24, to which he replies.
I have, etc.,
[Inclosure 1.]
Mr. Porter to
Mr. Delcassé.
Embassy of the United States,
Paris, April 24, 1900.
Sir: I am in receipt of a dispatch from my
Government asking what is the present status of the case submitted
to your excellency in my communication of September 19, 1899;
touching the violation of the consular dwelling of Mr. Tourgée,
consul of the United States at Bordeaux while he was temporarily
stopping at Arcachon. Your excellency will remember that our two
Governments disagree as to the meaning of the language of Article
III of the consular convention of February 23, 1853, as applied to
the premises occupied by Mr. Tourgée at Arcachon, and that in your
note to me of November 8, 1899, I was informed that it was your
intention to obtain legal advice on the subject.
In view of the time which has elapsed since writing my letter of
September 19, 1899, above mentioned, I shall feel obliged if you
will kindly inform me at your earliest convenience whether the
French Government is now prepared to adhere to the construction
given to the clause in question of the treaty by my Government.
I avail, etc.,
[Page 455]
[Inclosure
2.—Translation.]
Mr. delcassé
to Mr. porter.
Mr. Ambassador: In your letter of April 24,
last, you did me the honor to refer me to the question of the
interpretation of Article 3 of the Franco-American consular
convention of February 23, 1853, which was brought up in the course
of the communication of your excellency of September 19, last.
Your excellency will remember that in my reply of November 8, I had
to show that a difference of opinion existed between the Government
of the Republic and the Government of the United States concerning
the purport of one of the dispositions of Article 3.
So, according to the communication of your excellency of September
19, last, the American Government thought that by inserting in the
consular convention of February 23, 1853, the stipulation which we
are discussing, the high contracting parties had decided that the
inviolability of the chancelleries and consular dwellings applied to
whatever habitation the consul happened to be occupying for the
moment and for his pleasure, and without official motive, in another
town than the one indicated in his exequatur, as the one where the
consul is admitted to reside in his official capacity. For my part,
I informed your excellency in my reply of November 8, last, that the
interpretation given by your Government to this stipulation of the
Franco-American consular convention, differed from the principles
which had been admitted by the Government of the Republic in the
different consular conventions signed by France, and that it was not
possible for me to adhere to this interpretation without taking the
advice of competent counsel in regard to the import which, in their
opinion, should be attributed to the disposition in question, of
article 3 of the Franco-American Convention of February 23,
1853.
After having caused the examination of which we are speaking to be
undertaken, I have now the honor to inform Your Excellency that the
Government of the Republic, conformably to the advice given by the
jurists who were consulted, considers that by stipulating in article
3 of the above-mentioned convention of February 23, 1853, that “the
chancelleries and consular residences are inviolable,” France did
not understand that she attributed the great privilege of
inviolability, except to the consular officers and to the consular
residences in their several official posts; that is to say, in the
city where they are recognized to reside according to the terms of
their exequatur for the performance of their official duties. The
fact that the exequatur states that the jurisdiction of the consul
shall extend over a wider radius than the limits of the city, only
has reference to a question of the right for consular intervention,
and for the acts which this agent might be called upon to perform,
from the moment when the exequatur determines the place where the
consulate is established and consequently the official residence of
the consul. Also if inviolability has been accorded to the consular
residence, it is only because it might be sometimes difficult to
make a distinction between the consular office and residence in the
city where the consul exercises his functions, from the point of
view of the immunity granted by article 3 of the convention of
February 23, 1853. By this stipulation it was desired that since
that time all misunderstandings and frictions should be avoided.
But to desire that this inviolability be extended to all houses which
a consul of the United States might inhabit in France, in his
consular district and in a city other than that in which he has his
chancellery, and where he is expected to reside according to his
exequatur, would be to place a consular agent, in so far as his
privileges are concerned, on a ground of absolute equality with
foreign ambassadors and ministers, clothed with a diplomatic
character, and accredited to the Government of the French Republic,
or to the Government of the United States; this would be, in a
certain way, to decide that the American consuls in France and the
French consuls in the United States, are to be given the position of
“public ministers,” by the stipulation of article 3 of the consular
convention between France and the United States. The courts of
France have never admitted that this quality can be recognized in
foreign consuls who are admitted to exercise their functions in the
territory of the Republic, and they have always interpreted, in the
narrowest and strictest sense, the extent of the privileges which
may result from the stipulations of the consular conventions. I
believe I am right in stating, moreover, that the jurisprudence of
the American courts is, in this respect, the same as that of the
French courts, and, taking as authorities on international law, such
writers as Wheaton and Lawrence, they likewise refuse to recognize
in foreign consuls in the United States the character of “public
ministers.”
Basing itself upon the conditions aforementioned the Government of
the Republic finds itself under the unavoidable necessity of not
being able to concur in the interpretation
[Page 456]
which, according to the note of your
excellency of the 19th of September, 1899, the Government of the
United States gives to the clause of article 3 of the
Franco-American convention of February 23, 1853. I am pleased by the
thought that after the examination of these considerations the
Secretary of State of the Union will see their value, and will on
his part adhere to the import attributed by the French Government to
the stipulation in question. It is in this hope that I pray your
excellency to have the kindness to transmit this present
communication to your Government.
I beg, etc.,
