the Constitution invoked in that case was not involved, because the vice-consul of Chile was not subpoenaed as a witness for the defendants, but on behalf of the prosecution, and that as he was entitled to the same privileges and immunities as are granted to the consuls of France, it would seem to follow that he was exempt from compulsory process to attend as a witness.

§ 424. Insurgent government becoming established. But the court said there was another reason why his attendance should not be compelled. The defendants were charged with a violation of the neutrality laws of the United States, and their offense consisted in giving aid to those who, at the time the matter was before the court, constituted the established and recognized government. As they had succeeded and become recognized, the acts of that government from the commencement of its existence should be upheld as those of an independent nation. "To require the representative of that government," said the court, "to appear and give testimony against those alleged to have aided its establishment would not only be contrary to the principle upon which neutrality laws are based, but would strongly tend to give grave offense to the government now recognized by the United States, and with which this government, happily, is at peace.

11 58

§ 425. Subpoena by a state court.-The Danish vice-consul at New York refused to obey a subpoena duces tecum issued by a state court, and in reply to a complaint Mr. Olney referred to the tenth article of the consular convention between the United States and Denmark, declaring that the archives of consulates are inviolable, and that a magistrate has no right under any pretext to seize or interfere with them, and said: "A state court has no jurisdiction of writs against a foreign consul, such jurisdiction being specifically reserved to the federal courts." 50

§ 426. Archives privileged.—All documents which form a part of the archives of a foreign consulate are privileged. A witness, therefore, cannot be compelled to disclose their contents. The

58 United States v. Trumbull, 48 Fed. 94.

5 Mr. Olney, Secretary of State, to Messrs. Martin & Weil, Novem

ber 13, 1896, 213, MS. Dom. Let. 673. See U. S. Rev. Stats., secs. 563, 687, 688, 711.

privilege is that of the government and not of the witness. A circuit court of the United States of one district, issuing a subpoena by which a witness has been brought before an examiner to testify in a suit that is pending in another district, has authority to strike out from the testimony given by him anything violative of the privilege of a foreign government in disclosing the contents of documents belonging to the records of its consulate, where this privilege was claimed and sustained after the witness had, through inadvertence in some of his answers, violated the privilege.60

§ 427. American consuls as witnesses.-Some cases have occurred where American consuls abroad have been subpoenaed to testify under conditions not in compliance with consular conventions. In one instance, Mr. Guenther, consul-general of the United States at Frankfort-on-the-Main, received a subpoena containing this clause: "Witnesses who do not appear without sufficient excuse are to be sentenced, according to paragraph 50 of the Penal Code, to pay the costs occasioned by such nonappearance, also to a fine not to exceed 300 marks; and if this is not paid, to imprisonment not to exceed six weeks-producing them by arrest is also admissible." The consul-general indicated in a note to the court his willingness to testify in case a proper request was made, but protested against the language used in the subpoena, threatening him in case he failed to appear with fine and imprisonment and eventual arrest.

§ 428. Instructions of Department of State.-The correspondence on the subject was forwarded to the Department of State, which instructed the American Embassy at Berlin that it appeared that the consular convention did not stipulate for an exemption from summons, and hence it could not be claimed unless it should be ascertained that the consul-general was entitled to it under the most favored nation clause. But it was also said that as by the third article of the convention the consul-general, who was not a German subject, enjoyed "personal immunity from arrest or imprisonment except in case of crime," it appeared that the threat of fine, arrest and imprisonment was not only gratuitous, but that it showed a lack of respect due from one co Kessler v. Best, 121 Fed. 439.

friendly government to the consular officer of another, and that if it should have been carried into execution, would have constituted a flagrant violation of the treaty. He was required by the subpoena to testify "from papers to be shown" whether a certain person was an American citizen. This, the Department of State said, evidently referred to those belonging to the consular archives, and seemed to violate the article of the convention which declares that such archives should be inviolable. The German court, in reply to the protest of the consul-general, sent him a polite letter, in which he was requested to appear and give his testimony, adding that the summons was, through error, made out in the usual form. He complied with this request, testified, the officials verbally apologized, stating that they had not known of the consular convention, and the Department of State expressed its gratification "with the satisfactory termination of the incident."' 61

§ 429. Other instances.-Questions were, in 1899, addressed to Mr. Clancy, the consular agent of the United States at Bluefields, by Colonel Torres, who was conducting a military court of inquiry relative to the revolutionary uprising during the month preceding. These questions related to the action of the consular agent in issuing at the commencement of the uprising a warning to Americans to preserve a strict neutrality, and also as to his attitude and that of an American war vessel toward the revolutionary authorities, and as to the action of several Americans. These questions Mr. Clancy refused to answer without the permission of his official superiors. The treaty between the United States and Nicaragua then in force provided that the diplomatic agents of the United States should enjoy, according to the strictest reciprocity, the same privileges, exemptions, and immunities

1 For. Rel. 1899, 302, 305. Mr. Hay, Secretary of State, in a note to Mr. White, American Ambassador to Germany, said: "While Mr. Guenther's [American consul-general] office and dwelling are inviolable, he is threatened with arrest and imprisonment outside, or by virtual imprisonment inside, his office and dwelling, if he fails to obey the

process, either by arresting him outside of his dwelling and office or inside thereof; or if it is not sought to arrest him outside, virtually imprison him within by making it impossible for him to go out without being subject to arrest and imprisonment." March 6, 1899, For. Rel. 1899, 302.

granted to the diplomatic agents and consuls of the most favored nations.

§ 430. Instructions of Mr. Hay, Secretary of State.—Mr. Hay instructed Mr. Sorsby, the United States consul at San Juan del Norte, who reported the facts, to determine what immunities, exemptions, and privileges are accorded by Nicaragua by treaty with Spain, Great Britain, or any other nation, to the consuls of such nation; and to claim for Mr. Clancy whatever exemption. privilege, and immunity may be accorded to such consuls.

Mr. Hay stated that as a general rule of international law, in the absence of treaty stipulation, consuls are not, as such and in general, entitled to all immunities which attach to a diplomatic representative. But he added: "The consular archives are, however, inviolable under all circumstances. They can neither be invaded nor searched, nor seized by the officers of justice or other authority; but the personal books and papers of the consul are not entitled to such immunity. He cannot be required to divulge information which came to him in his official capacity, for that is the exclusive property of his government; but as to matters which come within his knowledge or observation in his mere capacity as an individual, he is not privileged from testifying as a witness."

§ 431. Facts within personal knowledge of consul.-Mr. Hay, in defining the rights and obligations of a consul, declared that if a consul should himself take part in the commission of crime, or in inciting an insurrection, or should observe others doing so, against the government to which he was accredited, he could not be shielded from giving evidence, according to the forms of the local law, as to the facts acquired by him in this manner, and within his personal knowledge. "On the one hand," he said. "he is entitled to enjoy all the privileges necessary to enable him to discharge the duties of his office; on the other hand, he is not to refuse to testify, under the circumstances and limitations above stated, simply because the facts to which he is required to testify might be of a political character, or simply because his testimony might have a tendency to implicate American citizens or others in the commission of unlawful acts."' 62

For. Rel. 1899, 566-568.

§ 432. Evidence before courts-martial.—Mr. Merry, American Minister to Nicaragua, stated in the case mentioned that he had arrived at the conclusion that such evidence could not properly be given before a court-martial, and that the English vice-consul took the same ground, and refused to testify. The matter was dropped without seeking further to compel the consular agent to testify, and, according to Mr. Merry, "the precedent is now established that before courts-martial in Central America ministers and consular officers need not testify-a position which I respectfully suggest may be of importance hereafter." 63

§ 433. Information received in official capacity.-Where it was sought to subpoena a consul-general to testify as to statements made to him, the Department of State said that he received the information in his official capacity, and communicated such information to the Department, thus making it a part of the records of the consulate, and therefore the Department could not authorize him to testify, because whatever knowledge he might possess was official and privileged, concerning only his relation to his own government.64

§ 434. International law part of the law of United States. International law is a part of the law of the United States, and as often as cases arise depending upon the principles of international law for their determination, courts of appropriate jurisdiction must ascertain and administer it. If there be no treaty on the subject, and if there appear to be no controlling executive or legislative act or judicial decision, the court must consider the customs and usages of civilized nations, and may consult as evidence of these the works of jurists and commentators, not for the opinions that may be expressed by them as to what should be the law, but as reliably stating what the law actually is.65 As said by Chancellor Kent: "In the absence of

Mr. Merry to Mr. Hay, May 9, 1899, For. Rel. 583; For Rel. 1899, 563, 567, 568.

"Mr. Rockhill, Third Assistant Secretary of State, to Mr. Mason, I. S. Consul, July 31, 1894, For. Rel. 1899, 304.

The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. Rep. 290, 44 L. ed. 320; Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. Rep. 139, 40 L. ed. 95; United States v. La Jeune Eugenie, 26 Fed. Cas. No. 15,551, 2 Mason 409.