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Mr. Thayer, United States minister at The Hague, November 29,
1889, enclosed a note from the ministry of foreign Netherlands.
affairs of that date, in which it was stated that for the transmission of judicial commissions addressed by the Dutch judicial authorities to a foreign judicial authorities in civil matters, the diplomatic channel was generally employed, although no regulation requiring it existed. The employment of the diplomatic channel was, however, stipulated in the majority of the Dutch extradition conventions in respect of judicial commissions concerning penal matter. It was stated that the courts of the Netherlands executed letters rogatory in civil cases eix comitate gentium. Mr. Wurts, chargé at St. Petersburg, May 12, 1890, sent to the
Department of State a translation of a “notice" of Russia.
the Russian foreign office concerning the execution of letters rogatory. This notice was as follows:
* The relations of the tribunals of the Empire with the judicial institutions of foreign countries are maintained in accordance with the provisions of article 190 of the Regulations of the Judicial Institutions by the ministry of justice through the mediation of the ministry of foreign affairs.
Conformably to this law, rogatory commissions addressed by a foreign state to a Russian tribunal, having in view the examination of witnesses, the delivery of a summons to appear, requests for information, etc., which are to be executed in Russia, are transmitted through the diplomatic channel to the imperial Russian ministry of foreign affairs, whence they are communicated by the ministry of justice to the competent tribunal.
* The replies of the tribunals appealed to, drawn up after the execution of the rogatory commissions, follow the same course.
* The tribunals of the Empire are not authorized to correspond directly with the judicial authorities abroad. As an exception, and by virtue of special conventions, the tribunals of the judicial districts of Warsaw are permitted to correspond, without diplomatic intermediation, with the tribunals of the frontier regions of Germany and Austria.
“ The legislation in force contains no disposition on the character of the rogatory commissions, which may be executed in Russia, nor on the manner of their execution by the competent Russian tribunals. These tribunals are obliged to conform in the matter to the general rules of the codes of criminal and civil procedure.
“ The custom of rogatory commissions being generally admitted in Russia, with the understanding of reciprocity, these commissions
a H. Ex. Doc. 281, 51 Cong. 2 sess. 24–25.
coming from abroad are executed by our tribunals when they are not contrary to the provisions for public order.
“ The expenses caused by the execution in Russia of rogatory commissions from foreign tribunals are charged to the State requesting their execution, unless a special convention arranges differently." Mr. Thomas, United States minister at Stockholm, April 26, 1890,
communicated to his Government a translation of a Sweden and Nor
memorandum which had been furnished to him by
the foreign office in relation to the execution of letters rogatory in Sweden. He was, advised that the law was substantially the same in Norway. The memorandum, which was dated April 26, 1890, reads, translated, as follows: a
“In Swedish law there exists no provision which obliges a Swedish court, upon the request of a foreign court, to take up the examination of witnesses.
“On the other hand there is no statute which forbids the Swedish courts to enter up on such examination, and in practice such assistance is usually not denied.
" As, however, in the administration of Swedish justice the courts never concern themselves with summoning witnesses, it is necessary that an attorney for the foreign suitor should be present and request the Swedish court to appoint a day for a hearing. The attorney will then summon the witnesses for the day so appointed.
" If the hearing concerns a felony, the proceedings should take place in an administrative way (officially), and similar measures should be taken for summoning witnesses.
“ The costs of the hearing fall upon the attorney who requests the same. If it has been requested in an administrative way, it is the duty of that Swedish authority that requested the hearing to provide for the payment of costs. Testimony in criminal cases is never taken gratuitously unless this is specially stipulated by treaty still in force.
, “ It is not to be presumed that witnesses will present themselves without reimbursement, and the courts can not grant them compensation out of the public funds, on account of the law of June 4, 1886.
“ The protocol of the hearing is placed at the disposition of the attorney or the authority requesting the same.
“ In no other respect does the Swedish law oblige the Swedish courts, upon the request of a foreign court, to lend any assistance; and there are no precedents in such respects that can be cited.” Mr. Washburn, United States minister at Berne, November 26,
1889, enclosed a note of October 19, 1889, from the
President of the Swiss Confederation, in which it was stated that there were no legal prescriptions in Switzerland as to how
a H. Ex. Doc, 281, 51 Cong. 2 sess. 27.
letters rogatory should be executed. Such letters, it was stated, should therefore be submitted through the diplomatic channel to the Swiss Federal Council, which would not fail to transmit them to the proper authorities of the respective Cantons." Mr. Scruggs, United States minister at Caracas, October 12, 1889,
enclosed a copy and translation of a note from the Venezuela.
Venezuelan minister of foreign affairs, of October 7, 1889. This note was as follows:0
“I have the greatest pleasure in answering your excellency's communication of the 1st instant relative to the execution of letters rogatory in this Republic. Here it is likewise a matter specially referred by law to the courts of justice, as will be seen by article 559 of the code of civil proceedings, which says:
“ * The decrees oi foreign tribunals relative to the examination of witnesses, procuring affidavits, taking interrogatories, and other mere informatory acts are executed by the simple decree of the judge of first instance having jurisdiction in the place where such acts have to be verified.'
"And article 560, which says:
“ • The provisions of the foregoing article are applicable to citations made to individuals resident in the Republic to appear before foreign authorities, and to notifications of judicial proceedings of foreign countries.'
" Finally, article 561 prescribes that the provisions of this title shall be subordinate to those of public treaties and international conventions, and to those of special enactments.' The title here cited is 19, relative to the execution of foreign decrees in Venezuela, with the exceptions therein expressed.
“ The honorable envoy extraordinary of the United States is right in saying there is not and has never been any embarrassment relative to the execution of letters rogatory in Venezuela. On the contrary, such execution has been facilitated, even through the diplomatic channel, to the end that reciprocity might be had with friendly governments and countries.
“ But since, in sending letters rogatory of the national tribunals to those in foreign countries, some difficulties have sometimes arisen in their execution-owing perhaps to the want of convenient means of defraying costs and of an agency of the parties interested--the Govcrnment resolved on the 17th of January, 1883, that, in such cases, the parties should constitute an agent to represent them and provide for the expenses of the same.”
a H. Ex. Doc. 281, 51 Cong. 2 sess. 27–28. 6 II. Ex. Doc. 281, 51 Cong. 2 sess. 29.
5. POLICE AND OTHER REGULATIONS.
(1) DISPLAY OF FOREIGN FLAGS.
Section 70 of the Consular Regulations of the United States, 1896.
reads: The arms of the United States should be Official display.
placed over the entrance to the consulate or commercial agency, unless prohibited by the laws of the country. Wherever the custom prevails, the national flag should be hoisted on such occasions as the consular officer may deem appropriate, or when it may be required for his protection or as the emblem of his authority. It is not usually necessary that it should be unfurled daily. The occasions for its display are within the judgment of the consular officer; but its use will be suggested on all national holidays of his own country and whenever it would indicate a becoming respect to the customs, festivals, or public ceremonies of the country to which he is accredited."
Section 73 states: “A consul may place the arms of his Government over his doors. Permission to display the national flag is not a matter of right, though it is usually accorded, and it is often provided for by treaty."
Section 86 refers to certain treaty stipulations as to the use of the national arms and flags.
Section 64 of the Instructions to the Diplomatic Officers of the United States reads: “A mission is not under the same necessity of displaying a coat of arms and raising a flag as a consulate; but it is in most capitals customary to place an official shield above the principal entrance of the diplomatic representative's residence, or the offices of the mission, when these are separate from his residence, with a short flagstaff set above the shield, on which to display the flag of the United States on occasions of special ceremony."
These regulations, consular and diplomatic, should, it is thought, “ suffice for all practical purposes, subject of course to a proper discretion and judgment by the individual officer.” Where the flag is raised on any occasion, it is usual to fly it from sunrise to sunset. It is not flown during the night.
“ Your letter of the 8th of October, in further reference to your inquiry of September 14th touching the etiquette of displaying the flag of one's own country in a foreign country, has been received.
The Department's letter of October 1st whereby you were advised that such a display of a foreign flag is a matter which would naturally be regulated by the laws of the country of residence, was framed with the knowledge that the laws of certain countries of the American Continent, and in particular those of Mexico, restrict or inhibit the display of a foreign flag upon national soil.
a Mr. Hay, Sec. of State, to Mr. Merry, min. to Nicaragua, Jan. 6, 1900, MS. Inst. Cent. Am. XXI. 609.
4. The Mexican rule is laid down in an Executive order of the President of the United States of Mexico of August 23, 1828, whereby it was prescribed that within the territory of Mexico no flag should be displayed except that of Mexico, and that the representatives of Mexico in foreign parts should by way of reciprocity abstain from displaying the Mexican flag in the country of their residence, even though the privilege were enjoyed by the representatives of other nations. On the 4th of September, 1830, this order was more precisely stated with specific reference to the custom of foreign consuls to display their flags in Mexico. Later the Mexican law of November 26, 1859, regulating and defining the privileges of foreign consuls in Mexico, incorporated this provision in its 30th article, permitting, however, the display of the consular flag when the town of the consul's residence might be besieged or mutiny or sedition arise within it.
“As your letter is written from Monterey, Mexico, and appears to relate to the specific inhibition in that country, rather than to any general proposition, this Department does not feel called upon to express any opinion on the further inquiry you present touching the post of honor and relative positions of national and foreign flags, in cases where both may be displayed.”
Mr. Day, Assist. Sec. of State, to Mr. Barron, October 20, 1897, 221 MS.
Dom. Let. 560.
In April, 1864, Gen. James Watson Webb, United States minister
to Brazil, issued to the United States consuls in that Unofficial display.
country a circular prohibiting the flying of the United States flag without his permission, unless by persons in an official capacity. The reason that he gave for his action was that the flag was often used by irresponsible persons, over disreputable places and in improper localities, on payment of a license fee to the local authorities for the privilege; and it appeared that, prior to issuing the order in question, he laid the matter before the Brazilian Government and received its sanction and approval. On the facts his action was approved, the Department of State declaring that the Government of the United States believed itself to be “ fully empowered and authorized to prevent the abuse and disgrace of its national emblem both at home and abroad."
Mr. Seward, Sec. of State, to Mr. Rollins, M. C., Feb. 15, 1865, 68 MS.
Dom. Let. 198.