IN GENERAL

[$ 477 ment of State is of opinion that a convention providing for the inviolability of the consular archives is rendered nugatory if a consular officer may be compelled to disclose their contents by his testimony in a local forum.1 According to Secretary Hay, such an officer cannot justly be required to divulge information coming to him in his official capacity, "for that is the exclusive property of his government;"2 but that as to matters within his personal knowledge or observation in his mere capacity as an individual, he is not privileged from testifying as a witness.3

8

PRIVILEGES IN RELATION TO DECEASED COUNTRYMEN

§ 477. In General.

a

Upon the death of a countryman within the consular district, a consular officer is accorded by international law, and even more broadly by treaty, extensive privileges. These concern notification of the consul by local authorities of the fact of

in the same position in making his defense, as the Government occupied in endeavoring to establish his guilt, the bare removal of the consular officer beyond reach of the court's process, by virtue of a treaty, would do no violence to the Amendment.

In order to avoid controversies, such as that arising from Dillon's Case, Art. IV of the consular convention with Sweden, June 1, 1910, provides that "in all criminal cases, contemplated by the Sixth Article of the amendments to the Constitution of the United States, whereby the right is secured to persons charged with crimes to obtain witnesses in their favor, the appearance in court of said consular officers, shall be demanded, with all possible regard to the consular dignity and to the duties of his office, and it shall be the duty of such officer to comply with said demand. A similar treatment shall also be extended to the consuls of the United States in Sweden, in the like cases.' Charles' Treaties, 113.

1 Mr. Hay, Secy. of State, to Mr. White, Ambassador to Germany, March 6, 1899, respecting Guenther's Case, For. Rel. 1899, 302, Moore, Dig., V, 82. Also Case of the American consular officer at Solingen, in 1905, For. Rel. 1905, 458-460.

2 Mr. Hay, Secy. of State, to Mr. Merry, Minister to Nicaragua, April 17, 1899, For. Rel. 1899, 566, Moore, Dig., V, 84-85; also Mr. Rockhill, Third Assistant Secy. of State, to Mr. Mason, U. S. consul, July 31, 1894, For. Rel. 1899, 304, Moore, Dig., V, 83; Mr. Blaine, Secy. of State, to Mr. Phelps, No. 178, Dec. 17, 1890, and No. 196, Jan. 29, 1891, MS. Inst. Germany, XVIII, 389, 403, Moore, Dig., V, 83.

3 Mr. Hay, Secy. of State, to Mr. Merry, Minister to Nicaragua, April 17, 1899, For. Rel. 1899, 566-568, Moore, Dig., V, 84. In the same Instruction it is declared that a consul is not to refuse to testify 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. See, also, in this connection, Mr. Merry, Minister to Nicaragua, to Mr. Hay, Secy. of State, May 9, 1899, For. Rel. 1899, 583, Moore, Dig., V, 85.

death; the taking charge of or placing the consular seal upon the assets of the decedent pending the appointment of an administrator; the administration of the estate of the decedent; and the distribution to foreign heirs in the State to which the consul belongs, either of property of the estate, or of pecuniary benefits due them by reason of their connection with or dependence upon the decedent.

The foregoing privileges are of great importance to foreign consuls in the United States, and particularly to those within whose consular districts reside large numbers of their fellow-countrymen, engaged in industrial occupations in the course of which death is frequently encountered. Such persons oftentimes leave surviving heirs or dependents residing in the country to which they owe allegiance. The proper protection of the interests of the nonresident heirs or dependents renders it expedient, and at times imperative, that a consular representative should automatically, and by virtue of the law, act in their behalf.1

b

§ 478. Notification of the Deaths of Fellow-Countrymen. Numerous conventions of the United States have provided that in case of the death of a citizen of either contracting party within territory belonging to the other, who has no known or testamentary executor designated by him, the competent local authorities shall give notice of the fact to the consular representative of the State of the deceased, that information may be at once transmitted to the parties interested. In the absence of local laws imposing a duty upon specified officials to make the requisite notification, foreign consuls in the United States oftentimes fail to learn of the deaths of their intestate fellow-countrymen residing within the same consular district. Upon complaint made through the diplomatic channel, the Department of State has on more than

1 The helplessness of non-resident dependents has oftentimes been utilized by local agencies which, when fortified by powers of attorney, have served their principals without zeal or scruple, and with vigorous opposition to the endeavors of the consular representative of the decedent to obtain justice in behalf of those who suffered pecuniary loss through his demise.

2 See, for example, Art. XVI, consular convention with Austria-Hungary, July 11, 1870, Malloy's Treaties, I, 44; Art. X, consular convention with Germany, Dec. 11, 1871, id., I, 553; Art. XVI, consular convention with Italy, May 8, 1878, id. I, 982; Art. XV, consular convention with Belgium, March 9, 1880, id., I, 99; Art. XXVI, treaty with Spain, July 3, 1902, id., II, 1709; Art. XIV, consular convention with Sweden, June 1, 1910, Charles' Treaties, 117.

TEMPORARY POSSESSION OF ASSETS

[$ 479 one occasion formally communicated with the governors of the several States (excepting those of States whose statutory law made appropriate provision), requesting that the terms of the particular treaty invoked be brought to the attention of the "competent local authorities", in order that the stipulation with respect to consular notification be complied with. The failure of certain States generally to deal with the matter by appropriate legislation has served to leave the international obligation unfulfilled,2 and to suggest the importance if not the necessity of a Federal law making uniform and adequate provision responsive to the formal undertaking of the United States.

According to instructions issued in 1914, the Department of State declared it to be the duty of an American consul to take such steps as might be practicable to insure his being informed of the deaths of Americans that might occur within his district, whether or not, under the regulations, he was called upon to take charge of the effects or administer the estate.3

C

§ 479. Temporary Possession of the Assets of an Estate. Official opinion in the United States has lacked uniformity with respect to the right of a consul, in the absence of treaty, to take even temporary possession of the assets of the estate of a deceased and intestate countryman. It was announced by Secretary Clay in 1827, that such an officer might, according to the prevailing practice, put his official seal upon the effects of the deceased until the local law operated upon them by the grant of administration, or if no administration were granted, for the purpose of transmission to the kindred of the deceased.4 Much the same idea had

1 See, for example, Mr. Adee, Acting Secy. of State, June 27, 1907, to the Governors of the States, For. Rel. 1907, I, 53.

2 See, however, § 12151, Vol. 5, Michigan Annotated Statutes, imposing upon judges of probate, in connection with the application for letters of administration, the duty to notify the appropriate consular officer; also § 7231, Minnesota Gen. Stat. 1913. According to § 20A, Act of April 21, 1915, amending Chap. 467, Minnesota General Laws of 1913, provision is made in the Workmen's Compensation Act, that in case a decedent be a native of foreign country leaving no known dependents within the United States, "it shall be the duty of the department of labor to give written notice of said death to the consul or other representative of said foreign country forthwith." 3 Circular Instructions to American Consular Officers, July 25, 1914. According to Circular Instructions of June 3, 1914, American consular officers are directed to make report of American citizens injured, killed or saved in calamities or disasters.

4 Communication to Mr. Vaughan, British Minister, Nov. 12, 1827, MS. Notes to For. Legs., III, 400, Moore, Dig., V, 117.

been expressed by Secretary Pickering in 1799.1 Secretary Marcy, in 1855, went so far as to declare that American consuls were "authorized and required to act as administrators on the estates of all citizens of the United States dying intestate in foreign countries and leaving no legal representative or partner in trade."

"2

The Supreme Court of the United States in 1912 announced it to be "the universally recognized right of a consul to temporarily possess the estate of a citizen of his nation for the purpose of protecting and conserving the rights of those interested before it comes under the jurisdiction of the laws of the country for its administration." 3

The statutory law of the United States prescribing the duties of American consular officers appears to make the right of a consul to take even temporary possession of the assets of an estate, inventory the same, and perform other specified acts, dependent upon the consent of the territorial sovereign. The Consular

1 Communication to Mr. Smith, May 13, 1799, 11 MS. Dom. Let. 324, Moore, Dig., V, 117.

2 Communication to Mr. Aspinwall, Aug. 21, 1855, 44 MS. Dom. Let. 270, Moore, Dig., V, 118. The Secretary's statement should, however, as was suggested by the Supreme Court of the United States, in Rocca v. Thompson, 223 U. S. 317, 327, be read in the light of the existing statutory law of the United States (§ 1709, Rev. Stat.), which did not contemplate the assertion of a right of consular administration which the local law did not permit.

3 Rocca v. Thompson, 223 U. S. 317, 331. Similarly it was declared by the Court of Appeals of New York in 1914, that "the function of consuls is to preserve derelict estates. When their countrymen die in foreign lands it is their duty to step in and guard the stranded property from waste. This right belongs to them, irrespective of express statute or treaty, by virtue of their office. Matter of D'Adamo, 212 N. Y. 214, 223.

4 § 1709, Rev. Stat. provides that:

"It shall be the duty of consuls and vice-consuls, where the laws of the country permit:

"First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by him appointed to take care of his effects.

"Second. To inventory the same with the assistance of two merchants of the United States, or, for want of them, of any others at their choice. "Third. To collect the debts due the deceased in the country where he died, and pay the debts due from his estate which he shall have there contracted.

'Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts, and, at the expiration of one year from his decease, the residue.

"Fifth. To transmit the balance of the estate to the Treasury of the United States, to be holden in trust for the legal claimant ; except that if at any time before such transmission the legal representative of the deceased shall appear and demand his effects in their hands they shall deliver them up, being paid their fees, and shall cease their proceedings."

Mr. Cushing, Atty.-Gen., in the course of an opinion, Sept. 12, 1856, declared that "Sundry legislative acts of the United States, proceed on the assumption that American consuls, in foreign countries, will collect and remit the assets of deceased Americans. Their authority to do this will depend, of course, on the law of the foreign country. If permitted by that law, and so far as permitted, the consul may do it, but not otherwise, nor further, unless al

ADMINISTRATION OF ESTATES

1

[§ 480

Regulations of the United States of 1896 announced that by the law of nations as well as by statute a consular officer was the "provisional conservator of the property within his district belonging to his countrymen deceased therein." In 1903, Secretary Hay, having in mind the views of Attorney-General Cushing expressed in 1855 and 1856, respecting the statutory law, said that the power and duty to guard, collect and transmit the assets of an estate were not exclusive; and that if those powers were not conferred by treaties or by the local law or usage, it became the consul's "alternative duty to aid others upon whom those functions devolve under local law."2 This view prevails at the present time. American consular officers are instructed to exercise greatest care not to exceed powers granted by treaty or "by local statute." 3

It may be observed that certain conventions of the United States declare, in various form, that, so far as the laws of the contracting parties will permit, a consular officer may take temporary possession of the assets of the estate of a deceased intestate countryman, pending (as is specified in one instance) the appointment of an administrator.4

d

§ 480. Administration of Estates.

It is not believed that in the absence of agreement a consular officer is possessed of an exclusive right to administer the estate

lowed by treaty. And so it is with respect to foreign consuls in the States of the Union." 8 Ops. Attys.-Gen. 98, 100, Stowell's Cases, 568, 570. See, also, Opinion of Mr. Cushing, Atty.-Gen., June 2, 1855, 7 Ops. Attys.-Gen. 242, 274, Stowell's Cases, 511, 538.

1 § 409, wherein it was also declared that "He (a consular officer) has no right, as a consular officer, apart from the provisions of treaty, local law, or usage, to administer on the estate, or in that character to aid any other person in so administering it, without judicial authorization. His duties are restricted to guarding and collecting the effects, and to transmitting them to the United States, or to aid others in so guarding, collecting and transmitting them, to be disposed of pursuant to the law of the decedent's state-7 Ops. Attys.Gen. 274. It is, however, generally conceded that a consular officer may intervene by way of observing the proceedings, and that he may be present on the making of the inventory."

2 Communication to Mr. White, Chargé at London, No. 1109, Jan. 15, 1903, For. Rel. 1903, 487, Moore, Dig., V, 123.

3 Mr. Adee, Acting Secy. of State, to Mr. Sands, Minister to Guatemala, No. 6, Oct. 12, 1909, For. Rel. 1909, 346, 347.

4 Art. XIV, consular convention with Sweden, June 1, 1910, Charles, Treaties, 117; Art. X, treaty of friendship with Paraguay, Feb. 4, 1859, Malloy's Treaties, II, 1367. See, also, the provisions of par. 10, Art. III, consular convention with Colombia, May 4, 1850, Malloy's Treaties, I, 316; Art. VIII, treaty of friendship with Costa Rica (followed in later treaties with Honduras and Nicaragua), July 10, 1851, id., I, 344; Art. XXVII, treaty of friendship with Spain, July 3, 1902, id., II, 1709. Compare the provisions of Art. VI, treaty of friendship with Persia, Dec. 13, 1856, id., II, 1373.