[Inclosure 2.] Mr. Hunter to Mr. Barrios. LEGATION OF THE UNITED STATES, SIR: I am in receipt of your excellency's note of the 4th instant informing me that Mr. P. A. Bruni, United States consular agent at Champerico, having been summoned to appear to testify in a court of justice, stated that while he was willing to do so to assist the ends of justice, yet that it was out of pure good nature on his part, for that owing to his official position he was not obliged to attend court if he did not wish to. Your excellency objects to this attitude on the part of Mr. Bruni, and requests me to warn him to modify his ideas in this respect. In reply I have to remind your excellency that there is no consular convention existing between the United States and Guatemala, and such a case may therefore fairly be judged by the treaties on the subject existing between nations. I am unable to agree with your excellency that "members of the consular corps do not enjoy in any country in the world any special rights which place them outside the jurisdiction of the laws of the place where they exercise their functions," for, on examining the consular conventions which the United States has with the different nations of the world, I find that in a few countries, such as China and Turkey, consuls have complete extraterritorial rights, and in many countries (France, Holland, and a number of others) they have the right to have their testimony in judicial cases taken at their consulate, in some cases even at their dwellings. These privileges, however, I am willing to admit, are generally confined to consuls by profession, consules missi, sent out by and citizens of the country they represent, and do not extend to consular officers who carry on business or have their domicile in the country where they exercise their consular functions, and who are not citizens of the country they represent. Consequently I am of your excellency's opinion that neither Mr. Bruni nor any other consular officer in his category is justified in assuming the attitude he has; although I am likewise of the opinion that some consideration should be shown such consular officer in the event of a summons to attend court interfering with his consular duties, especially when the court is located at some distance from his post, and that his absence at such a time would cause loss or injury to business interests, as might frequently happen. In the case, however, of a salaried consul, a citizen of the United States, who is here solely as consul, and who carries on no business or trade, I should certainly be inclined to claim for him the right to insist that testimony in judicial cases be taken at his consulate, in accordance with the terms of most of the consular conventions which exist between the United States and other countries. I shall take occasion to convey to the United States consul-general in this city my views as stated above, and shall also refer the matter to my Government for its opinion. I seize, etc., W. GODFREY HUNTER. [Inclosure 3.] Mr. Hunter to Mr. McNally, U. S. Consul-General at Guatemala. LEGATION OF THE UNITED STATES, SIR: I have to inform you that I am in receipt of a note from the minister of foreign affairs, dated the 4th instant, informing me that Mr. P. A. Bruni, our consular agent at Champerico, having been summoned the other day to appear in court at Retalhuleu in connection with some judicial proceedings, wrote a letter to the judge saying that, while he was willing to go to the court, yet he only did so out of pure good nature, as he considered that his office of consular agent freed him from the obligation to obey court summonses. The minister, in his note, protests against this attitude and requests me to "give Mr. Bruni a friendly warning, to the end that he may modify his ideas in this respect." I inclose therefore for your information a copy and translation of the minister's note above referred to, also a copy of my reply, and would suggest to you to caution* your agents against claiming more privileges than they can support their right to. Meanwhile I had referred the matter to the Department of State for their opinion. I am, etc., Mr. Hill to Mr. Hunter. W. GODFREY HUNTER. No. 311.] DEPARTMENT OF STATE, Washington, January 9, 1901. SIR: I have to acknowledge the receipt of your dispatch No. 481, of the 19th ultimo, in which you report that Mr. P. A. Bruni, United States consular agent at Champerico, having been summoned to attend a trial in the criminal court of Retalhuleu, wrote to the judge, saying that while he was willing to go to the court, yet he did so only out of pure good nature, as he considered that his official character freed him from any obligation to obey court summonses. You add that the Guatemalan minister of foreign affairs objected to Mr. Bruni's attitude and requested you to persuade the latter "to modify his ideas in this respect," which you have done by means of a letter to Consul-General McNally, a copy of which is attached to your dispatch, and you request to be advised what course to pursue in this and similar future cases. In reply I have to say that a consul engaged in business is amenable to summons, etc., only for causes apart from his official functions. He can not be summoned to give evidence of any matter of his consular business, nor to produce to the court any part of the consular archives. In relation to matters not affecting their official functions consuls are not, as a general rule, exempt from process, whether missi, salaried, feed, or engaged in business or not. In cases where the testimony of a consul may be properly required before the courts, the privilege of having such testimony taken at a consulate is not recognized by international law or usage, but depends for its existence on express conventional arrangement, which does not exist between the United States and Guatemala. The Department would suggest that it would be proper for you to investigate what conventional privileges Guatemala may have conceded in this respect to consuls of other countries. If there are any such privileges, this Government might reasonably expect, in the absence of a treaty, that they might be extended as an act of comity by Guatemala to our consular officers in that country. The Department limits its response to your inquiry to the statement of a few general rules, which seem applicable to the case so far as its nature is disclosed by your dispatch; but if specific instructions are desired in any particular case, the concrete case should be stated, and the Department will then give instructions accordingly. I am, etc., FR 1900 -45 DAVID J. HILL. HAITI. JURISDICTION OVER ALIENS WAIVED BY HAITIAN COURTS. No. 687.] Mr. Powell to Mr. Hay LEGATION OF THE UNITED STATES, Port au Prince, Haiti, December 16, 1899. SIR: I respectfully call to your atttention a question that has been raised by Dr. Michahelles, the German minister resident here, upon a construction of Haitian law, by which the courts in certain civil cases refuse to accept jurisdiction, or to have the same tried before them, if the litigants be foreigners, if either of the parties refuse their assent to the jurisdiction and competency of the court, Dr. Michahelles claims they have no right to waive jurisdiction but should pass upon all cases when the litigants are foreigners, as they would if they were Haitians, that if the courts of the Republic waive this right, then it is incumbent upon Germany to establish a court for the trial of cases brought by her citizens living here, and the judgements of this court shall be considered as valid as if the cases have been tried in a Haitian court. The Government refuses to recognize this claim, or the right of Germany to establish such a court. The matter is not yet settled, both the Government and the minister are awaiting the decision of the supreme court (court of cassation) to which the case has been appealed from the lower court, both litigants being Germans. I have, etc., Mr. Hay to Mr. Powell. W. F. POWELL. No. 390.] DEPARTMENT OF STATE, SIR: I have to acknowledge the receipt of your No. 687, of the 16th ultimo, reporting that a question has arisen between the Governments of Haiti and Germany because the courts of the Republic in certain civil cases decline to take cognizance of them if both parties are foreigners and either refuses his assent to the jurisdiction and competency of the court. In reply, I have to say that article 6 of the treaty of 1864 between the United States and Haiti, guarantees to American citizens the right which is in controversy between Germany and Haiti. It is therefore unnecessary, for the present at least, for the Department to express any opinion on the merits of the controversy. I am, etc., JOHN HAY. No. 758.] Mr. Powell to Mr. Hay. LEGATION OF THE UNITED STATES, Port au Prince, Haiti, April 24, 1900. SIR: I have the honor to inclose the decision of the court of cassation in which it states the incompetency of Haitian courts to try civil cases when both parties are foreigners. This is a matter I informed the Department in dispatch No. 687 of December 10, 1899. In view of the decision the minister resident from Germany proposes to recommend to his Government that it insist that there shall be established in this Republic an independent tribunal for the trial of such cases that the Haitian tribunals refuse to assume jurisdiction when both parties are foreigners, such tribunals to be under the control of the foreign powers having representatives here. It is to be further stipulated that the decisions of such courts are to be respected by the Haitian Government and that it be empowered to carry its decrees into effect. I also inclose the correspondence between the German legation and this in regard to this subject. W. F. PowELL. I have, etc., [Inclosure 1.-Translation.] REPUBLIC OF HAITI. Extract from the minutes of the clerk of the tribunal of the Republic. In the Name of the Republic. The tribunal of cassation, civil section, competently assembled at the palace of justice has rendered the following decree: On the appeal formulated by the Messrs. Tippenhauer & Co., foreign engineers domiciled at Berlin, Germany, dwelling at Port au Prince, acting in their quality as proprietors and directors of the technical bureau established in this city, having for constituted lawyer Mr. Luc Dominique, against a judgment of the civil court of Port au Prince, of date of September 22, 1899, rendered contradictorily between them and Mr. J. B. Reimers, engineer domiciled at Berlin, Germany, having for lawyer J. B. W. Francis. Facts: For to have the payment of $181.30, final payment of the one-half of the percentage collected for the construction of a house belonging to the citizen P. Faine, the Messrs. Tippenhauer & Co., acting as proprietors and directors of the techinal bureau established at Port au Prince, have had a summons made to Mr. Reimers to appear before the civil tribunal of Port au Prince, to hear himself condemned by all the legal means to pay to them without delay, with interests and expenses, the above sum. At the hearing of the affair by the above tribunal Mr. Reimers raised an exception of incompetence, tending to say that the Messrs. Tippenhauer & Co. are the same as himself, Reimers, foreigners, German subjects; the Haitian courts are incompetent to take cognizance of the civil litigation existing between the parties; that the tribunal should declare itself incompetent to take cognizance of the action that is submitted to it in the occurrence, and to give him an official certificate of the reserves that he makes both in regard to the form as to the foundation against the subpoena made to him on the 7th of September, 1898, and to condemn his adversaries to the expenses. To repulse this exception the Messrs. Tippenhauer & Co. have declared that in accord with the juris consuls of private international law the difficulties relative to the contracts that have origin in a determined territory should be judged and decided by the tribunals of that territory; that thus the request of incompetence should be declared badly founded and injunction should be made to their adversary to plead the basis with condemnation to the expenses. After having heard the public minister the tribunal ordered the documents to be deposited for deliberation and put off pronouncing of the judgment to another audience. The 22d of September last this tribunal rendered its judgment in these terms: For these motives the tribunal, after having deliberated, declares itself incompetent to take cognizance of the civil dispute existing between Messrs. Tippenhauer & Co. and Mr. Refmers, and send the parties to appeal to the proper person. It is against this judgment that was raised and notified after a summons made to that effect to the said Mr. Reimers by the said Tippenhauer & Co., foreign engineers, domiciled at Berlin, Germany, dwelling in Port au Prince, acting in their quality of proprietors and directors of the technical bureau, established in this city, having Mr. Luc Dominique for their constituted lawyer; that they have appealed and have notified their request containing the two means. First means: Triple violation, say the plaintiffs, of article 148 of the code of civil procedure: In that there is, first, complete absence in the point of law of the question that has made the object of their claim against their adversary. Instead of asking themselves whether the court should condemn Reimers to pay to Tippenhauer & Co. the sum of $181.30 that they claim of him, the judges, say the plaintiffs, hastened to ask themselves the sole question, to wit: If the exception of incompetence proposed by the defendant should be accepted, thus proving in the most evident manner their ardent desire to give right to the said exception. Is it not in fact logic, say the plaintiffs, that in the case the first question to be asked was naturally that taken from the act introductory of the instance, and that that relative to the exception of incompetence could only come in second instance. The will of the law, moreover, say the plaintiffs, is that all the questions agitated at the outset should be determined and precised as much from the point of view of right as from the point of fact. It would surely be no violation of article 148, say the plaintiffs, if the first judges had simply committed the error of transposing the order of the questions, it being given that there is no sacramental form for putting that; but there is place to observe, say they, that the first, the claim is absolutely wanting in the point of law, and that under that title the judgment attacked should inevitably be broken. In vain, say they, they think that in the following phrase the tribunal has itself sufficiently "examined the leading point reproached. If on the contrary the said exception should be rejected as badly founded and the defendant appointed to conclude on the basis." There is no doubt, say the plaintiffs, that this interrogation no wise makes known what was the nature of the basis, and of what it consisted. Second, moreover, this question, think the plaintiffs, on the declinatory proposed and accepted is it even of such an ambiguity and defect that it can not be advanced without hesitation that it does not exist properly speaking from the point of law in the judgment. In fact, say they, the petition from the principle to which the judges delivered themselves in their wording, absolutely says nothing. "It is a question of knowing whether the tribunal should accept the exception raised, it being question in the case of two foreigners." This defect, say the plaintiffs, equivalent to an absence of the point of law, should bring on the decision criticised. Third. Their arguments, say they, repulsed the incompetence raised, itself reposing on the powerful consideration taken from authors competent in the matter of private international law (see, say they, Calvo, A. Weife, Asser, Leaine, etc., to wit, that the dispute to be judged having originated on Haitian territory (at Port au Prince), the place where is erected the Faine Building, for the fees of which a sort of partnership existed between the parties), the pretended principle, say the plaintiffs, of incompetence of the Haitian tribunals to take cognizance of civil suits between foreigners, weakens, and therefore the civil tribunals of the jurisdiction could in all rights decide the question that they submitted to it, against their adversary. Now, say the plaintiffs, the tribunal without examining the merits of this scientific discussion exerted itself in the exposition of its motives, to make no allusion thereto. "It says well in the preamble, that the defendant and the plaintiffs are foreigners, and that the dispute existing between them is purely civil, although the contract from which it emanates took place in Haiti." But it is rational, they say, again, that this preamble explains nothing, and can not supply the reasoning that the judges were bound to make to avoid that series and important consideration and simply accepted the declination of incompetence. This abstention from elucidating a luminous point at the outset constitutes a want of motives sufficient to annul the work of the judges of the civil tribunal. Second means: Excess of power, and violation of the rules of the competency, say the plaintiffs, because the civil tribunal declared itself incompetent, it being questioned in the case of two foreigners, but they see nowhere in the judgment, in virtue of what text of law it has thus decided. And they ask themselves, where has it drawn the elements of its decision? On the other part, what are the reasons and the considerations that have led it to pronounce itself in that manner? Why, it being a question of foreigners, the Haitian justice can not take cognizance of the difference that divides them. |