APPOINTMENT OF AMERICAN CONSULAR OFFICERS [§ 461

The Department of State, while not regarding the statutory law of the United States as prohibiting the appointment of an alien as a consular officer, adverts to the American practice to commission only citizens when such are available.1 When no citizen is available, an alien may be appointed to a subordinate or substitute position.2

1 Statement in Moore, Dig., V, 11, based upon Mr. Adee, Acting Secy. of State, to Mr. Winchester, Aug. 13, 1895, 204 MS. Dom. Let. 82.

2 Id. See § 5, Act of April 5, 1906, 34 Stat. 101, prohibiting the appointment of any person not an American citizen in any consulate-general or consulate, to any clerical position, the salary of which is one thousand dollars a year or more. Also Mr. Fish, Secy. of State, to Mr. Grover, April 7, 1856, 112 MS. Dom. Let. 586, Moore, Dig., V, 11, respecting the serious embarrassment oftentimes resulting from the appointment of naturalized citizens to consulates within the country of their nativity.

TITLE C

EXEQUATUR

1

§ 462. Nature and Effect. Conditions of Issuance.

The right of a consular officer to exercise his functions is dependent upon the consent of the government in control of the country to which he is accredited. In times of peace the territorial sovereign possessed in fact of supreme control within its own domain is the political entity from which consent must be obtained. In seasons of war, a belligerent power occupying territory of its enemy may demand that authority for the exercise of consular functions therein shall emanate from itself, and hence be sought and granted accordingly. The act of seeking and receiving of such authority by or in behalf of a neutral State, is not believed to be necessarily indicative of recognition of the de jure sovereignty of the military occupant.2

In the case of a consul-general or consul, the consent of the territorial sovereign is commonly manifested by a document known as an exequatur, which expresses formal recognition of the individual as a consul, bears witness to the fact of his commission to act as such by his own government, and permits him to exercise his functions within the district for which he is appointed.3

1 Belligerent Occupation, Neutral Consuls, infra, Sec. 701.

2 "The request for an exequatur concerns merely the performance of certain duties by a United States officer toward the vessels and citizens of the United States, with the permission of the authority in actual possession, and cannot be assumed to imply the expression of any opinion as to the right of possession or to operate in confirmation of a claim of right. Such was the position of the United States in obtaining exequaturs from Nicaragua for a consul at Corn Island; from the Hovas government for a consul at Madagascar and from Great Britain for a consul at Belize." Moore, Dig., V, 13, citing Mr. Rives, Acting Secy. of State, to Mr. Hall, Minister to Central America, No. 638, Nov. 12, 1888, MS. Inst. Cent. Am., XIX, 173.

Stockton, Outlines, 225; Hall, Higgins' 7 ed., § 105.

Declares Stowell, "The true nature of the exequatur is that of a contract between the foreign State and the receiving State, and its object is to permit the consul to avail himself of its service and to utilize it in the interest of both States.' Le Consul, 209.

A foreign consular officer possessing an unrevoked exequatur issued by the proper authority of the United States will be recognized by the courts as the

NATURE AND EFFECT

[§ 462

In the United States, exequaturs are signed by the President and bear the great seal of the United States; they are issued only to foreign consular officers possessing or exhibiting a regular commission signed by the chief executive of the appointing State and under its great seal. They are not issued to substitute or subordinate officers of a foreign State. To such individuals there is issued a less formal document, signed by the Secretary of State and bearing the seal of the Department of State.3

The commission of an American consul-general or consul after his compliance with preliminary requirements relative to taking the prescribed oath of office and the filing and approval of a bond, is transmitted to the appropriate diplomatic representative with instructions to apply for an exequatur. The latter document when obtained by the representative is transmitted to the consul together with the commission through the medium of the consulate-general, if there be one having supervisory powers; otherwise directly to the consul's address. The Department of State may direct a consul to proceed to his post and enter upon the discharge of his duties with the consent of the local authorities, prior to the arrival of his exequatur.5 If the United States be without diplomatic representation in the foreign country, the commission of a principal consular officer will be delivered or sent directly to him, with instructions to transmit it without delay, on arrival at his post, to the proper department of the government, and to request an exequatur.

6

It is customary to transmit to the diplomatic representative, for recognition and authority, the certificates of appointment of accredited representative of his country entitled to all of the privileges pertaining to the consular office, even though the government which sends him has been overthrown, and an apparently successful revolutionary government established in its place. United States v. Trumbull, 48 Fed. 94.

1 Mr. Evarts, Secy. of State, to Mr. Sherman, Secy. of Treas., Dec. 12, 1879, 131 MS. Dom. Let. 13, Moore, Dig., V, 14.

The issuance of an exequatur is dependent upon the submission to the President of the consul's commission emanating either from the head of the appointing State, or from an officer thereof known to possess the power of appointing consular officers. Mr. McLane, Secy. of State, to Mr. Lederer, Austrian consul-general, Feb. 28, 1834, MS. Notes to For. Legs., V, 168, Moore, Dig., V, 15; Mr. Forsyth, Secy. of State, to Baron de Mareschal, Austrian Minister, March 21, 1839, MS. Notes to German States, VI, 51, Moore, Dig., V, 16.

2 Mr. Evarts, Secy. of State, to Mr. Shishkin, Russian Minister, Nov. 14, 1879, MS. Notes to Russian Legation, VII, 290, Moore, Dig., V, 15.

3 Mr. Evarts, Secy. of State, to Mr. Sherman, Secy. of Treas., Dec. 12, 1879, 131, MS. Dom. Let. 13, Moore, Dig., V, 14; Mr. Forsyth, Secy. of State, to His Highness Prince Metternich, Dec. 26, 1834, MS. Notes to German States, VI, 3, Moore, Dig., V, 16.

Instructions to American Consular Officers (1896), § 48. 6 Id., § 50.

Id., § 49.

all subordinate American officers (except those of consular clerks, interpreters and marshals); and in such cases the subordinate officer is instructed not to enter upon his official duties before receiving recognition from either the government or local authority of the country.1

With respect to colonies or dependencies, it is said to be customary to instruct the consul-general, or principal consular officer therein, to apply to the proper colonial authority for permission for the newly appointed consular officer to act temporarily in his official capacity, pending the result of the request for an exequatur.2

2

§ 463. Refusal or Revocation.

4

While a State may at will refuse an exequatur to a foreign consul,3 this right is rarely exercised by the United States, except for cause, such as, for example, the previous misconduct of the appointee, or action on his part deemed adverse to the State.5

The Department of State declared in 1897, that as a general rule of international intercourse, a government may justly revoke an exequatur without assigning any reason for so doing; that if cause is assigned for revocation, discussion of the sufficiency thereof is invited, and opportunity offered for the presentation of defensive evidence coupled with a request for reconsideration of the action taken; that if, however, no reasons are offered, the State revoking the exequatur cannot be compelled to give any." In 1908, however, the Department of State expressed surprise and regret at the "abrupt action" of Honduras in canceling the exequaturs of the American consul and vice-consul at Ceiba, "with

1 Instructions to American Consular Officers (1896), § 51. "The certificates of appointment of subordinate officers in countries in which the United States have no legation are sent to the principal officer, with instructions to request, from the proper authority, the recognition or exequatur accorded to such officers." Id., § 52.

2 Id., § 53. "Upon the application of the consular officer, or of the consulgeneral where there is one, the diplomatic representative may make to the minister of foreign affairs a request for temporary permission to act in the case of any consular officer under his jurisdiction." Id., § 54.

3 Mr. Marcy, Secy. of State, to Mr. Wheeler, Minister to Nicaragua, May 11, 1855, MS. Inst. Am. States, XV, 236, Moore, Dig., V, 28.

Mr. Blaine, Secy. of State, to Mr. Morgan, May 31, 1881, MS. Inst. Mexico, XX, 267, Moore, Dig., V, 28.

5 Mr. Adee, Second Assist. Secy. of State, to Mr. Sickles, Dec. 26, 1899, MS. Inst. Spain, XXII, 658, Moore, Dig., V, 29.

Mr. Sherman, Secy. of State, to Mr. Pringle, American Chargé, Aug. 18, 1897, For. Rel. 1897, 338, Moore, Dig., V, 27; Mr. Seward, Secy. of State, to Baron de Wetterstedt, April 23, 1866, MS. Notes to Sweden, VI, 174, Moore,

Dig. V,

23.

REFUSAL OR REVOCATION

[§ 463 out customary diplomatic notification" to the United States, "and without opportunity for interchange of views and temperate investigation of the facts." It was urged that the cancellation of the exequaturs be withdrawn, and that any complaint which the Government of Honduras might feel constrained to make concerning the course of the officers in question "should take the appropriate diplomatic channel of investigation and amicable settlement." The Honduranean Government yielded.2

1

3

The revocation of his exequatur may be anticipated as the natural consequence of certain conduct on the part of a consul, such as the commission of illegal acts, or manifest hostility towards the State of his sojourn especially when it is engaged in war, or the endeavor to use his consular position to defeat the ends of justice by refusing to appear as a witness in a suit pending against himself.5

1 Mr. Bacon, Acting Secy. of State, to the Honduranean Minister, July 31, 1908, For. Rel. 1908, 458, where it was also said: "It is very unfortunate, and in some regards most embarrassing, that a question of this character should be precipitated at a moment when we are earnestly acting, coincidently with Mexico, in the interest of peace in Central America. If the American

consul and vice-consul at Ceiba be shown to have done any act contrary to international precept, to the instructions of their Government, or to the friendly and impartial purposes of the United States, a frank ascertainment of the facts, and an equally frank comparison of the views of the two Governments could hardly fail to result in a cordial agreement touching the course to be pursued for a friendly closure of the incident. Your Government, Mr. Minister, like mine, can expect nothing less than fair play in such a case, and it certainly can ask no more." Also Art. 5, declaration of the Institute of International Law, Sept. 26, 1896, Annuaire, XV, 304.

2 For. Rel. 1908, 469; id., 456-470, respecting the matter generally.

3 Coppell v. Hall, 7 Wall. 542, Moore, Dig., V, 19. See, also, Mr. Jefferson, Secy. of State, to Mr. Duplaine, Oct. 3, 1793, Am. State Pap., For. Rel., I, 178, Moore, Dig., V, 19. Also Moore, Dig., IV, 533-534, and documents there cited, concerning the revocation of the exequaturs of three British Consuls in 1856, on account of their violation of the neutrality laws of the United States during the Crimean War.

4 Case of Mr. Bunch, Moore, Dig., V, 20-21, and documents there cited; Case of Mr. Rogers, Moore, Dig., V, 22-23, and documents there cited; also Mr. Fish, Secy. of State, to Mr. Stevens, June 23, 1873, MS. Inst. Paraguay, I, 163, Moore, Dig., V, 25.

5 Janssen's Case, in Report of Mr. Seward, Secy. of State, to the President, March 28, 1867, accompanying message of President Johnson to the Senate, March 28, 1867, S. Ex. Doc. No. 1, special session of the Senate, 6, 36, 38, Moore, Dig., V, 23; also Mr. Marcy, Secy. of State, to Commander Figanière, Portuguese Chargé d'Affaires, Feb. 19, 1855, MS. Notes to Portugal, VI, 143, Moore, Dig., V, 20.

Concerning the gross misconduct of certain German consular officers in American territory while the United States was a neutral with respect to the World War, see House Report No. 1, 65 Cong., I Sess., Cong. Record, Vol. LV, Part 1, 319, 321.