demolished the American consulate at Malaga, and removed the United States coat of arms, hanging the Spanish colors in its place. The minister of the United States at Madrid immediately on being advised of the incident asked the Spanish government to protect all United States consulates and consular officers throughout Spain. The civil governor of Malaga, acting under instructions from Madrid, restored the coat of arms and expressed his regrets and those of his government for the attack. The Spanish government, in an official note, expressed its regret for the excesses of the mob, and stated that instructions had been given for the protection of the persons and property of United States consular representatives.

For. Rel. 1898, 1079–1085.

Tourgée's case.

The convention of February 23, 1853, between the United States and France, relative to consular privileges, besides granting to consular officers the privileges usually accorded to their offices, "such as personal immunity, except in case of crime," etc., contains the following special provisions:

In no case shall (Art. III.)

"They may place on the outer door of their offices, or of their dwelling houses, the arms of their nation ; and they shall be allowed to hoist the flag of their country thereon." (Art. II.) "The consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext. they examine or seize the papers there deposited." In the winter of 1898-99, Mr. Tourgée, United States consul at Bordeaux, took a furnished house at Arcachon, 30 miles from Bordeaux, but within his consular district, in order to undergo there a course of medical treatment. The routine work of the consulate continued to be done in the office at Bordeaux, but he conducted his consular correspondence and wrote his despatches in the house at Arcachon, which consequently contained various official papers. In April, 1899, owing to a dispute as to reservations in the lease, Mr. Tourgée withheld the second installment of rent. The landlord then obtained from a civil tribunal a writ authorizing the seizure in the house of any movable goods belonging to the tenant. When the bailiff appeared with the writ, Mr. Tourgée refused to permit it to be executed, raising the American flag and protesting his privilege. The bailiff, however, with the assistance of a commissary of police, entered the house, but, finding the personal effects of the tenant insufficient to pay the rent, did not seize them.

The United States took the view that these proceedings constituted a violation of the treaty, holding that Article III. guaranteed the inviolability of any dwelling in which the consular officer might for the time being have his habitation within his consular district. The United States, it was said, required the consul to keep offices at

Bordeaux, but not necessarily his dwelling; and attention was called to the fact that he performed official work in the house at Arcachon. The French government, on the other hand, held that the treaty accorded inviolability to the consular dwelling only, because it might sometimes be difficult to distinguish the office from the residence; that the designation in the exequatur of the seat of the consulate determined the place of official residence, the mention of the wider area of jurisdiction referring only to the right to perform consular acts; and that, as consuls do not enjoy the exemptions of public ministers, the privilege of the treaty should not be extended beyond the offices and residences of the consuls at their several official posts.

The United States, while maintaining that this view was not consistent with the letter or the intent of the treaty, intimated that it would be adopted, should occasion arise, as a reciprocal construction thereof.

For. Rel. 1900, 429-431, 432-435, 450-452, 455, 456. *

Prince.

March 30, 1899, Dr. J. B. Terres, vice-consul-general of the United States at Port au Prince, Hayti, complained to Mr. Cases at Port au Powell, United States minister, that on the afternoon of the preceding day, when he arrived at his residence, he found on the premises 15 or 20 Haytian soldiers. They withdrew before he could reach the gate, but one of his domestics told him that they had come with an order to arrest two men who were in his employ. The next morning, in coming from his bath, he found two Haytian generals sitting on the gallery of his house. On his inquiring their mission, they stated that they had an order from the minister of the interior to arrest two Spaniards (Cubans) who were in his employ. He answered that he did not admit any right to invade his premises with an armed force under any pretext whatever, and that if any information was desired from him he should be written to officially. On the strength of these incidents, he protested to Mr. Powell against the action of the Haytian government, and requested him to take steps to prevent a like occurrence.

66

In a note written to Mr. Lafontant, minister of foreign relations, March 30, 1899, Mr. Powell declared that an entrance upon “the premises of accredited officers of the United States, located in this Republic, is a grave infraction of international law, a recurrence of which will be very apt to lead to serious complications,” and that “" all Cubans resident in this Republic are under the protection of the United States while in the peaceful performance of their work, and are not to be molested." Mr. Powell requested Mr. Lafontant to inform his colleague, the minister of the interior, that the Haytian government "has no right to enter upon the premises of United

States consular officers with either its military or its constabulary force." a

Mr. Lafontant, while stating that he had immediately communicated with the department of the interior, assured Mr. Powell that it could not have been the intention of his colleague "to give orders that may be of the nature to cause a violation of international laws and the violation of the dwelling of an accredited agent of the United States;" and that he took note of the fact that Cubans residing in the Republic were under the protection of the United States.

Mr. Lafontant subsequently wrote to Mr. Powell assuring him that the minister of the interior, in ordering, on the request of the diplomatic representative of the Dominican Republic, the arrest of a Dominican who was in the service of Dr. Terres with a view to expelling him, "had in no wise the intention to violate the dwelling of an accredited agent of the United States, nor to commit any infraction of the international laws." Mr. Lafontant called attention to the fact that in consequence of the protest of Dr. Terres the order was not executed, and declared that it would be painful to his government if Mr. Powell "could believe for a single instant that a minister of the Republic could have given an order of a nature to disturb the good relations that unite the two Republics and to which my government attaches such price."

66

appears

.

In reply Mr. Powell expressed his satisfaction, at the same time stating "that the two Dominicans referred to are not and have never been in the employ of our vice-consul-general, Dr. J. B. Terres." c The Department of State, on receiving a report of the case, said: It that the parties were merely employed in the tobacco plantation' belonging to Dr. Terres, and that the Haitian military authorities did not enter the legation or consular premises, but merely went to Dr. Terres's residence. Even this is explained to have been the result of a blunder on the part of subordinate officials. In view of these facts, the Department is of opinion that you had no authority whatever in the premises, either to grant or to refuse the surrender of the parties, or to approve their arrest.”

Mr. Hay, Sec. of State, to Mr. Powell, min. to Hayti, April 25, 1899. For.
Rel. 1899, 377.

October 28, 1899, the Haytian minister of foreign affairs addressed a note to the United States legation at Port au Prince stating that the minister of the interior had just announced that he was about to make domiciliary searches in the square in which resided Mr. Battiste, deputy consul of the United States, and that it was possible that his dwelling might be penetrated. It was further stated

a For. Rel. 1899, 375.
For. Rel. 1899, 376.
e For. Rel. 1899, 377.

that the notice was given with a view to avoid misunderstanding, and that the police would be accompanied by a justice of the peace. Immediately afterwards, and before a response could be made by the legation, Mr. Battiste's residence was surrounded and entered by the police, who represented that they were searching for a thief. It appeared that the chief of police entered the dwelling, revolver in hand, to the terror of the inhabitants. Subsequently the legation complained to the minister of foreign affairs of the action of the police, observing that Mr. Battiste would have given any information in regard to his private residence that the Government might have desired. The minister of foreign affairs replied: "I hasten to express the regret that the unusual precautions taken by my department to facilitate the execution of that police measure did not produce the desired result. I will add that my regrets are the more intense and the more sincere, that Mr. Battiste has always merited the consideration of the Government."

On receiving full reports of the case, the Department of State said: "The search seems to have been immediately accomplished without awaiting the result of the formal application made to the legation for its sanction.

"The application so made is somewhat vague, but in the light of Mr. Battiste's report to Mr. Terres it appears that the entire square was being searched for an escaped thief who was supposed to have taken refuge there.

"As the immunities attaching to the office of deputy consul do not include so-called asylum for persons charged with violating the law, no objection could be seen to effecting the proposed search after notification, and with the sanction and, if necessary, the full assistance of the officers of the legation. It seems clear, however, that the proceedings were not conducted with suitable consideration for Mr. Battiste's official position, his yard fence having been broken down and his premises alarmingly invaded by an armed force.

"The protest made by Mr. Terres is approved as proper and timely. The reply from Mr. St. Victor is evasive and unsatisfactory, being confined to an expression of regret that the exceptional precautions taken by his department to facilitate the execution of the proposed police measure had not produced the expected result.

"You will impress upon Mr. St. Victor the obvious circumstance that no time was allowed to the legation to respond in the desired sense, inasmuch as the search appears to have been already in progress when the agents of the legation hastened to Mr. Battiste's house for the purpose of aiding the local authorities in the orderly execution of the proposed search, and you will express the hope that you may not at any time hereafter be called upon to make renewed complaint respecting any such offensive disregard of the consideration

and official amenities due to the representative agents of the United States at Port au Prince, or, indeed, anywhere else within Haitian jurisdiction.

"As it would appear from Mr. Terres's statements that Mr. Battiste's fence has been broken down, you should insist, if it has not already been done, that any injury done to the property of this officer of the United States shall be made good."

Mr. Hay, Sec. of State, to Mr. Powell, min. to Hayti, Nov. 27, 1899, For.
Rel. 1899, 407.

On the morning of February 1, 1904, the United States consul at Cienfuegos found the door of his office "besmeared Case at Cienfuegos. and the coat-of-arms literally covered with mud." He reported the facts to the police. The acting mayor ordered an immediate investigation, and, in company with other civil authorities, called at the consulate to express regrets. The minister of the United States at Havana brought the matter to the attention of the government, which expressed its "most energetic disapproval" of the occurrence, and intimated that the author of the offense should not remain unpunished. The government of the United States, “in view of the apologies made and the precautions taken to prevent a repetition of the insult," declared that the incident might be regarded as closed.

For. Rel. 1904, 236-238.

5. DISPLAY OF NATIONAL ARMS AND FLAG.

§ 706.

A consul may place the arms of his government over his door. Permission to display the national flag is not a matter of right, though it is usually accorded and is often provided for by treaty.

The right to place the national arms and the name of the consulate on the offices is given by treaties with Austria-Hungary, Italy, and the Netherlands (and colonies); on their offices and dwellings, by treaty with Belgium and Germany; the right to place their national flag on their dwellings, except where there is a legation, by treaties with Austria-Hungary, Belgium, Germany, Roumania, and Servia; the right to place the arms, name, and flag on their offices or dwellings, by treaties with France and Salvador; and the right to place the name and flag on their dwellings, by treaty with Colombia. The treaty with the Independent State of the Congo confers the right to raise the flag on the consular office.

Consular Regulations of the United States (1896), §§ 70, 73, 86, pp. 26, 28, 33.

As to the display of the national arms, §§ 70 and 73 do not seem to be entirely consistent.