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the Hague, to bring the matter to the attention of the Netherlands Government. He says, that 'it is not doubted that both by the usage of nations and the laws of the United States, M. Dubois has the legal right to decline to give his testimony; but he is at perfect liberty to exercise this privilege to the extent requested, and by doing so he does not subject himself to the jurisdiction of the country. The circumstances of this case are such as to appeal strongly to the universal sense of justice. In the event of M. Van Hall's suggesting that M. Dubois might give bis deposition out of court in the case, you will not omit to state that by our Constitution, in all criminal prosecutions, the accused has the right to be confronted with the witnesses against him, and hence, in order that the testimony should be legal, it must be given before the court.' M. Van Hall, June 9, 1856, in a note to Mr. Belmont, declined authorizing the minister to appear in court. He said that availing himself of a prerogative generally conceded to the members of the diplomatic body, and recognized also by the laws of the Republic, as adverted to by Mr. Marcy, M. Dubois refused to appear before a court of justice; but being desirous to at once reconcile that prerogative with the requirements of justice, he suggested a middle course of action, and proposed to Mr. Marcy to give his declaration under oath, should he be authorized to that effect by the Government of the Netherlands. After taking the King's orders on the subject, I did not hesitate to give such authority to M. Dubois, approving at the same time, and formally, the line of conduct which he pursued on that occasion.' M. Dubois addressed a note to Mr. Marcy, on the 21st of June, stating that he was authorized to make his declaration under oath at the Department of State, adding, 'it is understood that, on such an occasion, no mention is to be made of a cross-examination, to which I could not subject myself." The declaration was not taken, as the district attorney stated that it would not be admitted as evidence."

Lawrence's Wheaton (ed. 1863), 393, 394.

The correspondence of the Government of the Netherlands, in refusing to allow its diplomatic agent to testify in the criminal courts of the United States, is given in Senate Ex. Doc. No. 21, 34th Cong., 3d sess.

See also Dana's Wheaton, § 225, note 125.

On the trial of Guiteau, Señor Camacho, minister from Venezuela, who was present at President Garfield's assassination, was called as a witness for the prosecution. Before he was sworn the following statement was made by the district attorney:

"If your honor please, before the gentleman is sworn, I desire to state, or rather I think it due to the witness to state, that he is the minister from Venezuela to this Government, and entitled under the law governing diplomatic relations to be relieved from service by subpoena or sworn as a witness in any case. Under the instructions of his Government, owing to the friendship of that Government for the United States, and the great respect for the memory of the man who was assassinated, they have instructed him to waive his rights and appear as a witness in the case, the same as any witness who is a citizen of this country." Guiteau's Trial, I, 136.

"A foreign diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever. This right is regarded as appertaining to his office, not to his person, and is

one of which he cannot divest himself except by the consent of his Gov. ernment. Therefore, even if a diplomatic agent of the United States be called upon to give testimony under circumstances which do not concern the business of his mission, and which are of a nature to counsel him to respond in the interest of justice, he should not do so without the consent of the President, obtained through the Secretary of State, which in any such case would probably be granted."

Printed Pers. Inst. Dip. Agents, 1885.

As to consular privileges in this respect, see infra, § 120.

XXIII. CANNOT BECOME BUSINESS AGENTS.

§ 99.

A public minister cannot act as agent for the collection of private claims without injury to the dignity and decorum of the public service. Mr. J. Q. Adams, as reported in 4 Mem. J. Q. Adams, 347.

It is not within the province of the Department of State to make inquiries abroad as to matters of the purely private business of citizens of the United States, though applied to by such citizens.

Mr. Buchanan, Sec. of State, to Mr. Hough, Mar. 13, 1846. MSS. Dom. Let. The Department will not, at the suit of private claimants, call upon foreign ministers to make inquiries in the countries where they are resident as to the business interests of such claimants.

Mr. Marcy, Sec. of State, to Mr. Reedy, Aug. 21, 1856. MSS. Dom. Let. Mr.
Marcy to Mr. French, Dec. 12, 1856; ibid.

"It is not within the province of a minister of the United States abroad to present private claims unless they are the result of a violation of international law by the Government addressed."

Mr. Fish, Sec. of State, to Mr. Eliot, May 12, 1869. MSS. Dom. Let.

"The aid of the diplomatic representatives of the Government is frequently requested for the prosecution of private investigations, but this Department does not feel justified in being the medium of conveying requests of that character, which necessarily involve much labor and investigation, and occasionally considerable expense,-and when sometimes an official sanction may be inferred from the source through which certain facts are obtained, to the private and individual theories of the author who may use the information thus obtained through official channels.

"It is a rule, therefore, of this Department not to impose upon the diplomatic agents of the Government the labor of obtaining information of the kind sought by Mr. Burt, except when sought for the official use of some of the Departments of Government.

"In the present case it is believed, from the nature of the information sought, that Mr. Burt will find little difficulty in obtaining it through other agencies. There will be no objection to his making an individual

application in his own name to the minister at Vienna, who will be at liberty, if he is thus inclined, to undertake the labor. But this Department cannot impose the task upon him."

Mr. Fish, Sec. of State, to Mr. Richardson, Nov. 1, 1873. MSS. Dom. Let.

"A standing rule of the service prevents ministers from acting as claim agents or bankers for citizens at home in their dealings with the foreign Government to which they are accredited, unless the Department gives them permission to do so.”

Mr. Frelinghuysen, Sec. of State, to Mr. Wright, Apr. 5, 1884.
See Mr. Evarts, Sec. of State, to Mr. Yoder, May 21, 1880.
infra, § 123.

MSS. Dom. Let.
MSS. Dom. Let.,

"It is no part of the business of a legation to act as a safe deposit institution, and no responsibility (of insurance) can attach to the minister if he yield to the request and take such property into his keeping without valuable consideration."

Mr. Bayard, Sec. of State, to Mr. Cox, Dec. 23, 1885. MSS. Inst., Turkey.

"It is no part of the duty of this Department or of the diplomatic or consular officers of the United States abroad to attend to the prosecution of the private claims of American citizens in foreign states, especially in countries like Great Britain, where the courts of justice are open to them."

Mr. Bayard, Sec. of State, to Miss Heald, July 9, 1886. MSS. Dom. Let. "The interposition of diplomatic agents is often asked by their countrymen to aid in the collection of claims against the Government to which they are accredited. If the claim is founded in contract, they will in no event interfere without specific instructions to do so. If it is founded in tort, they will as a general rule in like manner seek previous instructions before interfering, unless the person of the claimant be assailed, or there be pressing necessity for action in his behalf before they can communicate with the Department; in which event they will communicate in full the reasons for their action."

Printed Pers. Inst., Dip. Agents, 1885.

XXIV. NOR REPRESENT FOREIGN GOVERNMENTS.

§ 100.

A minister plenipotentiary of the United States cannot, without the consent of Congress, accept a similar commission from another power, though he is not prohibited from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer thereof.

13 Op., 537, Akerman, 1871. As to joint action with other diplomatists, see infra, $ 102.

"Diplomatic officers are sometimes requested to discharge temporarily the duties of those of other countries. It may be proper as a

matter of comity to accede to such requests, but not (unless under urgent circumstances) until permission has been granted by the Department of State. Diplomatic officers, however, are prohibited by the Constitution (art. 1, sec. 9) from performing, without the consent of Congress, any duties for any foreign Government which involve the acceptance of office from such foreign Government."

Printed Pers. Inst., Dip. Agents, 1885.

As to gratuitons services in such cases, see infra, § 105.

XXV. SHOULD RESIDE AT CAPITAL.

§ 101.

"If the President has in one or two instances acquiesced in the residence of foreign ministers in a distant city of the Union, it has been because they have had but little business to transact with this Government, and because their residence there has given rise to no complaint of breach of privilege on the one hand or of personal injury to American citizens on the other."

Mr. Clay, Sec. of State, to Mr. Tacon, Dec. 10, 1828. MSS. Notes, For. Leg.
As to Mr. Jackson's action in this line, see infra, § 107.

The practice of residence of foreign legations at other places than the capital is beset with many inconveniences, and cannot be looked upon with satisfaction by the Government of the United States.

Mr. Van Buren, Sec. of State, to Mr. Billé, Oct. 23, 1830. MSS. Notes, For. Leg.

XXVI. JOINT ACTION WITH OTHER DIPLOMATIC AGENTS UNADVISA

BLE.

§ 102.

The policy of the United States precludes, as a rule, the appointment of special diplomatic agents to confer with those concerned in political movements abroad.

Mr. Forsyth, Sec. of State, to Mr. Kaufman, April 30, 1840. MSS. Dom. Let. But consultation between the several diplomatic representatives at a foreign capital, resulting in the assumption of a common attitude in cases of public emergency, is not inconsistent with the above rule. Supra, §§ 61, 67, 68, 68a; infra, § 105.

"It is, of course, neither possible nor desirable to avoid a free interchange of opinion between the representative of the United States and the representatives of other powers upon questions of common concern arising in foreign capitals. Such free communication is not only ap proved, but is especially commended. At the same time care should be taken to avoid, as far as possible, formal conventions in which propositions are considered, with an understanding or agreement that a decision by a majority of representatives shall commit or bind the representative of the United States. A consent on your part to give such an effect to a decree of a council of representatives would be virtually a proceeding derogating from the authority of the President, and if

approved by him would have the seeming but unreal operation to bind the United States by his own individual act, in derogation of the Constitution, which requires that no engagement shall be made with foreign powers other than by treaty solemnly celebrated by the President and duly ratified by the Senate."

Mr. Seward, Sec. of State, to Mr. Hovey, Feb. 25, 1867. MSS. Inst. Peru. See
supra, § 90.

As to importance of union between diplomatic agents abroad, see 8 John Adams'
Works, 547, 549.

As to joinder of foreign ministers at Japan and China, see supra, §§ 67–68.
As to joint action with other powers in respect to affairs in South America, and
the West Indies, see supra, § 57. The objections to such action are stated
by Mr. Everett, in notes to Count Sartiges and Lord John Russell, given
supra, § 72.

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XXVII. DUTIES AS TO ARCHIVES.

§ 103.

"The instructions of this Department to its diplomatic agents abroad have for a long series of years past strictly prohibited ministers from retaining for their private information or use copies of any correspondence of record in their legations. This rule has been found necessary, not only because such archives are public property, which no private person has a right to possess, but also because however great the discretion of the minister doing so may be during his lifetime, yet, after his death the instances in which valuable papers in relation to the confidential intercourse of this Government with foreign states may pass through other hands into unguarded publicity, are not rare."

Mr. Evarts, Sec. of State, to Mr. Tuttle, May 19, 1879. MSS. Dom. Let. "The following record books should be kept at all missions of the United States abroad:

"A dispatch-book, into which are to be copied all official communications written by the diplomatic agent to the Department of State. Press-copy books are not to be considered as permanent records.

"A note-book, into which are to be copied all official communications written by the diplomatic agent to the Government to which he is accredited.

"A letter book, into which are to be copied all other official communications written by the diplomatic agent. This book should contain the record of his letters to the consular officers under his jurisdiction.

"A passport-book, in which are to be registered all passports issued or visaed by the diplomatic agent.

"A miscellaneous record-book, for the entry of those official papers and records which cannot conveniently be classified and entered in the record books above named-and in this book should be included also copies of such translations of official papers as the diplomatic agent may forward with his dispatches to the Department of State.

"A register of official letters received at the legation, which shall embrace the following information: Name of the writer, number and date of letter, when received, its import, and remarks thereon, as prescribed in the form hereto annexed.

S. Mis. 162-VOL. I

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