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the establishment of certain local companies which would not have been able to have entered the field if the original amount of $1,000,000 capitalization for local companies and $2,000,000 for foreign companies had remained in force.
In conformity with the Department's instructions I have refrained from formal protests, but I have repeatedly made informal representations as to the injury to the general business interests of the two countries likely to result from the bill as originally drafted. I have [etc.]
WM. MILLER COLLIER
DISAGREEMENT OF THE DEPARTMENT OF STATE WITH DECISION OF A CHILEAN COURT THAT A DIPLOMATIC SECRETARY DOES NOT ENJOY DIPLOMATIC IMMUNITY
The Chargé in Chile (Engert) to the Secretary of State No. 962
SANTIAGO, November 22, 1926.
[Received December 22.) Sir: Referring to an item mentioned on page 32 of the Embassy's General Conditions Report No. 930-G of October 6, 1926, 34 I have the honor to transmit herewith a translation of the full text of the decision of the Santiago Court of Appeals which held that a Second Secretary of the Brazilian Embassy in Santiago-and therefore by inference any other diplomatic secretary in this capital-is subject to the jurisdiction of the Chilean courts in a criminal case, and that an order for his arrest and imprisonment may be issued provided notification thereof be given to the Brazilian Ambassador.
As the diplomatic secretary in question was recalled by his Government shortly after the case began and although the decision of the Court of Appeals will consequently remain without effect as regards his person, most members of the diplomatic corps in Santiago feel very strongly that a dangerous precedent has been set which should not remain unchallenged.
For the Department's information I am quoting below in translation Article I of the Chilean Code of Criminal Procedure:
“The Tribunals of the Republic exercise jurisdiction over Chileans and foreigners for the purpose of judging crimes committed in its territory, except in the cases provided for by the rules generally recognized in International Law".
The Department will observe, moreover, that in paragraph (1) of the inclosed decision the exceptions made by International Law are admitted. But in paragraph (2) the Court is of the opinion that International Law recognizes diplomatic exemptions from criminal jurisdiction only in favor of "Ambassadors, Ministers, and Chargés d'Affaires".
* Not printed.
Apart from the fact that in most civilized countries no distinction is made between the chiefs of missions and the diplomatic secretaries as regards their immunity from arrest and trial by the local authorities, the decision appears to contradict itself because it will be noted that in paragraph (9) it goes so far as to say that not even an Ambassador could claim the privilege of exterritoriality if he committed a crime in Chile, as he would be subject to the jurisdiction of the special tribunal provided for in Article 15 of the Code of Criminal Procedure. I have [etc.]
C. VAN H. ENGERT
Decision of the Santiago Court of Appeals, September 24, 1926
1. As a general rule all persons who reside within the limits of a country, be they citizens or foreigners, are subject to the laws which that country establishes, except the exceptions recognized by international law, and in consequence it pertains to the tribunals of each nation to judge of all the acts subjected to them by its constitution or laws and to conserve the validity of the public authority by the defence and vindication of all the rights created by its laws which have been disregarded.
2. That the exceptions recognized by international law, accepted by all civilized countries, are (1) the person of a sovereign, when he enters the territory of a friendly power; (2) the diplomatic agents, understanding as such the ambassadors and diplomatic ministers and chargés d'Affaires, who represent the sovereign and government of friendly nations; (3) the warships which sail or anchor in territorial waters; (4) the armies or troops of other nations which visit or pass in transit through national territory;
9. That if the Secretary Barroso were not subjected to the Chilean Tribunals for the purpose of judging the criminal acts which he may have committed, he would be in a better position than the Ambassador himself, who would have to appear because of the privilege he enjoys before the special tribunal established by Article 15 of the Code of Penal Procedure, and who would not be protected by exterritoriality for the purpose of being judged by the Brazilian courts, because it would be a question of a common crime committed on Chilean territory.
The Secretary of State to the Ambassador in Chile (Collier) No. 699
WASHINGTON, January 8, 1927. SIR: The Department refers to the Embassy's despatch No. 962 of November 22, 1926, enclosing a copy in translation of the decision of the Court of Appeals at Santiago of September 24, 1926, holding that a Secretary of the Brazilian Embassy in Santiago was subject to the jurisdiction of the Chilean courts in a criminal case and that he might be arrested and imprisoned for his criminal acts committed in Chilean territory. The Embassy states that although the decision of the Court will remain without practical effect as the Secretary in question was called home by his Government shortly after the case began, members of the diplomatic corps in Santiago feel that the decision is a dangerous precedent and should not go unchallenged.
While the Department feels that the decision of the Court in the case referred to was in contravention of the generally recognized principle of international law that diplomatic immunity from local criminal jurisdiction enjoyed by heads of diplomatic missions also extends to the members of their suites, it is considered that this Government need not make a special protest against the precedent set by the case. However, should the diplomatic corps at Santiago decide that the decision merits a joint protest to the Chilean Government as being contrary to international law, you are authorized to express concurrence. I am [etc.]
For the Secretary of State:
JOSEPH C. GREW