Consuls, their duties

diction.

now generally limited and defined in treaties of commerce, or by the statute regulations of the country which and juris- they represent. In some places they have been invested with judicial powers over the disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers, [the Ottoman Porte, the Emperor of China, and the government of Japan and Siam, for consular privileges are much less extensive in Christian than in Pagan and Mohammedan countries ']. In England too it has been held, that a vice-consul is not strictly a judicial officer, that he has there no judicial power, [and that the certificate of such a person of the amount of the proceeds of damaged goods is not evidence to prove loss sustained by the deteriorations of such goods insured by policy (but see now the stat. 18 and 19 Vict. c. 42, ss. 2 and 3). So also in America, the doctrine holds that American consuls, having no judicial power, cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility.] It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no Government can invest its consuls with judicial power over their own subjects, in a foreign country, without the consent of the Government of the foreign country founded on treaty. Much less can it assume a jurisdiction of this kind in a foreign country, in transactions where one of the parties is not a subject of such Government, unless by treaty, by long existing usage, or by a voluntary submission of the party himself, such jurisdiction has been established and acquiesced in*; nor is there an instance, in any nation of Europe, of the admission of criminal jurisdiction in foreign consuls. The laws of the United States, on the

1 Fynn, On Consuls, p. 19.

2 Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunton, 162; 1 Chitty, Commercial Law, 50, 51. Matthews v. Offley, 3 Sumner (American), 115.

3 Toler v. White, Ware's Rep. (American), 277.

4 The Greifswald, 1 Swabey's Adm. Reports, 430.

their

subject of consuls and vice-consuls, specially authorize Consuls, them to receive the protests of masters and others, re- duties lating to American commerce, declaring that their con- and jurisdiction. sular certificates, under seal, shall receive faith and credit in the courts of the United States'. It is likewise made their duty, where the laws of the country permit, to administer the personal estates of American citizens, dying within their consulates, and leaving no legal representative, and to take charge of and secure the effects of stranded American vessels, in the absence of the master, owner, or consignee; to direct a survey of American vessels putting into a port of necessity for repairs; to provide for destitute seamen within their consulates, and to send them at the public expense to the United States3. These particular powers and duties are similar to those prescribed to British consuls, and to consuls under the consular convention between the United States and France, in 1788; they are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment. The former consular convention between France and the United States allowed consuls to exercise police over all vessels of their respective nations, "within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and altogether exclusive of any coercive authority'; and until a very recent period the United States had no treaty which conceded even such consular functions; however, by the convention of the 23rd February, 1853, with France, which provided for the issue of the

1 Brown v. the Independence, Crabbe's Reports, 54 (American). Johnson v. the Coriolanus, Crabbe, 239.

Acts of Congress of 14th of April, 1792, ch. xxiv, and of Feb. 28, 1803, ch. LXII, and now the important statute on this subject is the "Act to regulate the Diplomatic and Consular System of the United States," Aug. 18, 1856. United States Statutes at Large, Vol. xi. p. 52.

3 Beawes, L. M. Vol. 1. tit. Consuls, pp. 292, 293. Potter v. Ocean Insurance Company, Circuit Court, U. S.

4 Mr Pickering to Mr Pinckney, Jan. 16, 1797. State Papers, 1789-1815, Vol. 1. p. 182 (Boston, 1817).

American

Consuls, their

duties

diction,

necessary exequatur (the right to withdraw it for proper reasons being duly reserved), it was decreed that the and juris consuls-general, consuls, vice-consuls, or consular agents, as well as the consular pupils, should enjoy in the two countries all the privileges usually accorded to their office and all the exceptions and immunities which might at any future time be granted to the agents of the same rank of the most favoured nation'. The doctrine of the American courts is, that a foreign consul, duly recog nised by their government, may assert and defend, as a competent party, the rights of property of the individuals of his nation, in the courts of the United States, and may institute suits for that purpose, without any special authority from the party for whose benefit he acts3. But the court, in that case, said, that they could not go so far as to recognise a right in a vice-consul to receive actual restitution of the property, or its proceeds, without showing some specific power, for the purpose, from the party in interest. Of course where the sovereign is represented by a resident minister, or ambassador, the consul's power of intervention in behalf of his sovereign ceases.

Consuls, how received.

No nation is bound to receive a foreign consul unless it has agreed to do so by treaty, and the refusal is no violation of the peace and amity between the nations. Consuls are to be approved and admitted in the usual form; and if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, revoked, and to be punished according to the laws of the country in which he is consul; or he may be sent back to his own country, at the discretion of the Government which he has offended. The French consuls (and Monsieur Massé says, the same prohibition exists in Austria, Holland, and Russia) are forbidden to be concerned in commerce, a rule that would seem to be somewhat relaxed by the 2nd article of the treaty between the United States and France; and, by the act of Congress of February 28th, 1803, American consuls re

1 U. S. Statutes at Large, Vol. x. p. 992.

2 Case of the Bello Corrunes, 6 Wheaton, 168.

3 Ship Adolph, 1 Curt. C. C. 87 (American), and Robson v. The Huntress, 2 Wall Ir. C. C. 59 (American).

4 This, however, is a position that can scarcely be admitted as consistent with the practice of the British Government.

siding on the Barbary coast are forbidden also; British Consuls. and American consuls have been generally at liberty to be concerned in trade; in such cases the character of consul was held not to give any protection to that of merchant, when these characters were united in the same person'. Though the functions of consul would seem to require that he should not be a subject of the state in which he resides, yet the practice of the maritime powers is not strict on this point, and it is usual, and sometimes most convenient, to appoint subjects of the foreign country to be consuls at its ports.

how far

privileged.

A consul is not such a public minister as to be en- Consuls, titled to the privileges appertaining to that character, nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe conduct, but he is not entitled to the jus gentium. Vattel thinks, that his functions require that he should be independent of the ordinary criminal jurisdiction of the country; that he ought not to be molested, unless he violates the law of nations by some enormous crime; and that if guilty of any crime, he ought to be sent home to be punished. But no such immunities have been conferred on consuls by the modern practice of nations; and it may be considered as settled law, that consuls do not enjoy the protection of the law of nations any more than other persons who enter the country under a safe conduct; nor are they exempted from the operation of the laws of war, so as to lose the character of belligerents if residing as traders in an enemy's country, even though they be neutral, and invested with the office of consul of

1 Beawes' L. M. Vol. I. tit. Consuls, p. 291, 1 Chitty, Commerc. Law, 57, 58, 3 Rob. Adm. Rep. 27. The Indian Chief. Massé, Droit Commerc. T. 1. § 453; and Arnold and Ramsay v. U. Insurance Company, 1 Johnson's Cases, 363 (American). The inclination of modern legislation in England however is opposed to Modern the continuance of this liberty to trade, and this privilege, if English privilege it can be called, is being gradually discontinued, in con- doctrine sequence of a recommendation of the House of Commons, of Consuls July, 1858. See the Report, dated 27th July, 1858. No. 482. trading The prohibition against engaging in mercantile pursuits is now rigidly enforced in the United States by the Act 34th Congress, Sept. 1, ch. 127. U. S. Statutes, Vol. xI. p. 52. In England the privilege of engaging in trade is under the regulation of the Secretary of State for Foreign Affairs.

2 B. II. c. 2, § 34.

as to

Consuls,

how far privileged.

Consular privileges in Mohamme

dan countries.

a neutral state in the place of their residence'. In civil and criminal cases they are equally subject to the laws of the country in which they reside. The same doctrine, declared by the public jurists, has been frequently laid down in the English and American courts of justice. It seems, however, from some decisions in France mentioned by Mr Warden', that foreign consuls cannot be prosecuted before a French tribunal for acts done by them in France by order of their Government, and with the authorization of the French Government, and that in general a consul cannot be prosecuted without the previous consent of his Government. But if a Frenchman has a demand against the consul or vice-consul of his nation in a foreign country he can only sue him before a tribunal in France. Consular privileges are much less extensive in Christian than in Mohammedan countries, [the result, partly, of the abiding influence of the early concession of commercial privileges and exemptions in favour of Christian merchants in the East, and partly of treaty stipulations; the consequence has been that, whilst in Christian countries consuls have no judicial power or authority, in Turkey these officials are allowed to exercise a jurisdiction, civil as well as criminal, over their fellow-countrymen, even to the exclusion of the local magistrates and tribunals; moreover, they partake very

1 Sorensen v. the Queen, 11 Moore, Privy Council Cases, 141. 2 Wicquefort's L'Amb. B. 1. ch. v. Bynk. De foro legat. ch. x. Martens' Summ. B. iv. ch. 111. § 8. Edn. by Wm. Cobbett, published 1802. Beawes, Vol. 1. tit. Consuls. Pardessus, Droit Commerc. T. IV. pp. 148, 183. Barbuit's Case. Cases temp. Talbot, 281. Valarino v. Thompson, 3 Seld. 576 (American).

3 Barbuit's Case. Cases temp. Talbot, 281. Albrecht . Sussman, 2 Veasey and Beames, 323. Clark v. Cretico, 1 Taunton, 106. Viveash v. Becker, 3 Maule and Selwyn, 284. Aspinwall v. Queen's Proctor, 2 Curteis, 241. The Falcon, 6 Robinson, 194. The Hope, 1 Dodson, 229. The Grieswald, 1 Swabey, 430. The following American cases are on the same subject: The Anne, 3 Wheaton, 446. United States v. Rovara, 2 Dallas, 297. The Commonwealth v. Korsloff, 5 Serg. and Raw. 545. Durand v. Halback, 1 Miles, 46. Davis v. Packhard, 7 Peters, 276. De la Foret's case, 2 Nott and McCord, 217. See also 1 Chitty's Laws of Commerce, 70. Wheaton's Elements, Part III. ch. 1. § 22. Phil. limore's International Law, Vol. 11. §§ 246-248.

4 On Consuls, pp. 108-116. Chitty, On Laws of Commerce, p. 71. Massé, Droit Commerc. T. 1. § 448. Code Civil, Tit, I ch. 1. § 3.