[Enclosure]
The Consul General at Shanghai (Cunningham) to the Minister in China (MacMurray)
Shanghai, September 12, 1929.
No. 6132
Sir: I have the honor to enclose herewith a
copy of a subpoena issuing from the United States Court for
China,41
requiring the presence of Consul J. E. Jacobs in the Provisional
Court to testify as a witness in the cause of the Shanghai Municipal
Police (Bubbling Well) (Miss Mabel P. Lee) versus Zung Ah Mo. A copy
of this subpoena is being forwarded to the Legation for the purpose
of having it transmitted, together with a statement of the
circumstances surrounding its issuance, to the Department of State,
with such comment as the Legation may desire to make.
So far as this office is aware, this is the first occasion that a
subpoena of this kind has been issued. The procedure in the past for
securing the presence of an American consular official at the
Provisional Court, or its predecessor the former Mixed Court, has
been for the Registrar of that Court to address a letter to the
Consul General asking that he direct the officer whose testimony is
desired to appear at such time as might be arranged with the
Registrar. In this particular instance, the Registrar of the
Provisional Court, Mr. J. E. Wheeler, was absent, and the Acting
Registrar forwarded the request for the United States Court for
China for the issuance of a subpoena, which the Acting Clerk of the
United States Court for China prepared and served upon Consul Jacobs
without consulting Judge Milton D. Purdy.
Realizing that his appearance in the Provisional Court under a
subpoena of this kind might establish an unfortunate precedent in
connection with the privileges and immunities of American consular
officers in China, Consul Jacobs discussed the matter with Judge
Purdy and Dr. Sellett, the United States District Attorney. As a
result of this interview, Judge Purdy directed the Clerk to return
the request for the issuance of a subpoena of the Acting Registrar
of the Provisional Court with the suggestion that he follow the
usual procedure and address a letter to the American Consulate
General. Such a letter dated September 9, 1929, a copy of which is
enclosed,41 was
subsequently received.
While Consul Jacobs is not aware of the particular questions which
may be asked of him in connection with this case, his connection
therewith arises from the performance of his official duties as a
consular officer of the United States. The complainant in this case,
a certain Mrs. Lee, who is a Chinese citizen, called upon the
Consulate by telephone for assistance in connection with certain
jewelry which she
[Page 751]
alleged
to have been stolen from her while she was residing at the
Burlington Hotel. After stating her complaint, Consul Jacobs
ascertained that Mrs. Lee was not an American citizen, and,
accordingly, he declined to assist her in taking up the matter with
the Settlement Police whom she alleged were not rendering adequate
assistance.
While no specific provision is found in any of the treaties between
China and the United States which gives American consular officers
immunity from the obligation of serving as a witness or giving
testimony in Court, it is believed that under the general rules of
international law a consul may not be required to divulge
information which came to him in his official capacity since such
information is the exclusive property of his government. The
Registrar of the Provisional Court is being informed accordingly and
a copy of this Consulate General’s letter to him in this connection
is enclosed herewith. On this point, reference is made to Secretary
Hay’s instruction to Mr. Merry, Minister to Nicaragua, April 17,
1899 (Foreign
Relations 1899, p. 567) as follows:
“Under the general rules of international law a consul may
not be summoned to give evidence concerning consular
business or to produce to the court any part of the consular
archives; and information which came to him in his official
capacity, he is privileged from disclosing, for such
information belongs to his government.
“He can not 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. If a consul should himself participate in the
commission of a crime or in setting on foot an insurrection,
or should observe others doing so, against the Government to
which he is accredited he could not be shielded from
testifying, according to the forms of the local law, as to
the facts thus acquired and within his knowledge.”
Reference is also made to the Department of State’s instruction to
the American Consul at Bombay, dated October 21, 1919 (Stewart’s
“Consular Privileges and Immunities” page 138) as follows:
“As regards your statement that you are instructed to claim
inviolability for the archives, it is observed that the
Bombay authorities in their letter to you of April 4th
expressly recognize the inviolability of the archives and
property of the consulate. Should you again be requested to
appear in court as a witness and to produce official
archives you will not only claim exemption from producing
said consular documents, but also from giving testimony in
respect to official consular business.”
Since the question has arisen in this instance, it is believed that
the matter should be borne in mind when a new treaty between the
[Page 752]
United States and China is
negotiated in order that a more definite provision may be inserted
in the treaty defining the rights, privileges, and immunities of
American consular officers in China, than is now provided in the
very general provisions of Article 2 of the Sino-American Treaty of
1903.43 After the abolition of extraterritoriality,
the extent of the protection which consular officers in China can
render American citizens may be seriously impeded if the treaty
provisions on their rights, privileges and immunities are not
clearly defined.
I have [etc.]
[Subenclosure]
The Consul General at Shanghai (Cunningham) to the Chief Clerk of the Shanghai Provisional
Court (J. E.
Wheeler)
Shanghai, September 12,
1929.
Sir: I have the honor to acknowledge the
receipt of your letter No. 25346, dated September 9, 1929,44 in connection with
Criminal Case 3/23560, S. M. P., Bubbling Well (Miss Mabel P. Lee)
versus Zung Ah Mo, in which you transmit a request of the Judge of
the Appellate Court that Consul J. E. Jacobs of this office be
directed to appear in Court (No. 9) at 2:00 p.m. on Friday,
September 13, 1929, in order to give evidence in this case. While
this office desires to assist the Provisional Court in every way
possible, it is regretted that its request in this instance cannot
be complied with since the connection of Consul Jacobs with this
case arises from the performance of his official duties at this
office as a consular officer of the United States Government. Under
the general rules of international law, a consul may not be required
by an alien court to divulge information which came to him in his
official capacity, since such information is the exclusive property
of the government which he represents. It is requested, therefore,
that you convey this information to the Court.
I am [etc.]
