4. The important act of 1792 contains a declaratory provision, which is to be understood as implied in all other acts of Congress, as follows:

"The specification of certain powers and duties, Specification of ***, to be exercised or performed by the consuls certain consuand vice consuls of the United States, shall not be duties not to lar powers and construed to the exclusion of others resulting from exclude others. the nature of their appointments, or any treaty or convention under which they may act."

and duties, how

So that the powers and duties of consuls, besides Consular funcbeing defined by acts of Congress, are indicated by tions, rights, general treaties and consular conventions entered indicated and into between the United States and other sovereign defined. powers; and also by the regulations prescribed by the President through the Department of State.2

5. Consuls possess, moreover, by the law of nations, International rights and privileges besides those which are granted law as affecting by conventions, or declared by legislative acts or by

regulations.3

consuls.

tended and re

6. Their privileges necessarily arise from the Consular privicharacter of their appointments; but they are not, leges, how exlike those of ambassadors and other public ministers, stricted. precisely defined by international law; and, consequently, they may be extended or limited among different nations, either by treaties or the legislative policy of those countries. Although the commissions Consular comwhich United States consuls receive from their ernment are expressed in the same terms and confer the same authority, yet, as the consular functions are to be exercised in a foreign country, and in accord

I Statutes at Large, vol. i. p. 257.

gov

2 Statutes at Large, vol. xi. p. 60; Opinion of Judge Sprague in the case of the United States v. Williams et al., MS. and Letter of the District Attorney of Massachusetts, Oct. 5, 1857.

• Idem.

missions, how to be under

stood.

lar conventions.

ance with an exequatur issued by its sovereign, they Effect of consu- may be more or less restricted. Whenever the immunities, rights, and duties of consuls are prescribed by mutual consular conventions, they are to be enjoyed or exercised in accordance with the stipulaConsular duties tions of such conventions. In countries with which in countries the United States have entered into no consular conU. S. have no vention, consular officers may discharge such duties as consular con- are allowed by common usage, or are not forbidden by

with which the

ventions.

Duties of con

stacles are in

the laws of those countries; it being understood that such duties come within the general scope of official powers acknowledged by the commercial world; and usually they are permitted to exercise such privileges as are granted to foreign consuls by the United States within its own territory.

7. If the authorities of the places where consuls suls when ob reside oppose any obstacles to their enjoyment of the terposed to the privileges which may have been accorded by conenjoyment of sular conventions, or which, founded on usage or their privi- reciprocity, may have been claimed by themselves,

leges.

Consuls not

cers.

they should refer the subject to the legation, to which they are subordinate, of the United States residing in the country, and report the facts, together with their own proceedings, and transmit a copy of all their correspondence in relation to it, to the Department of State, and await instructions. In no case should they strike the consular flag or abandon their posts without the express permission of the Department.

8. Consuls in Christian countries are not, legally diplomatic offi- speaking, public ministers of the State to which they belong, though, having an official character, they are under a more special protection of international law than uncommissioned individuals. This protection they have a right to claim, both from the State which

sends and from the State which admits them. But they are not diplomatic representatives of their respective countries, nor entitled to the privileges and immunities accorded to such representatives.1

9. They are not, like public ministers, furnished Consular exewith credential letters, but simply with a commission quatur. which authorizes them to watch over the commercial rights and privileges of the nations deputing them." They cannot enter upon the discharge of their official duties without the permission of the sovereign authority of the country to which they are sent. This is given by an instrument which is termed an exequatur, and may at any time be revoked. As a general rule, consuls are amenable to the civil and criminal jurisdiction of the country in which they reside. In the United States the Supreme Court possesses original jurisdiction in all cases affecting consuls, and the Federal jurisdiction is understood to be exclusive of the State courts.*

10. The privileges of consuls, so far as they are Consular priv derived from the country in which they reside, are, ileges. generally speaking, an exemption from the liability to have soldiers quartered in their houses, and from per

5

sonal service in the civic guards or militia. Some- Non-exemptimes, as a matter of courtesy, and not of right, they tion from taxaare exempted from the payment of a personal tax,

1 See section 212 of this volume, infra. Opinions of the Attorneys General, vol. i. pp. 41 and 406.

Kent, Commentaries, vol. i. pp, 50–57.

3 Phillimore's Commentaries upon International Law, vol. ii. pp. 240, 241; Vattel, p. 147; Wheaton's Elements, p. 305.

+ Statutes at Large, vol. i. p. 18, and note; also Kent, vol. i. p. 45. See also Opinion of Supreme Court of New York in the case of the Rock River Bank v. Hoffman et al., General Term, February, 1862, MS.

5 De Martens, Le Guide Diplomatique, i. 388; Opinions of the Attorneys General, vol. ii. 725; Phillimore, vol. ii. pp. 240–251. `

tion.

passports.

2

but not of other taxes, and more rarely from payment of duties at custom houses on their furniture and baggage. No foreign consul residing in England is exempted from direct taxation except the Russian consul general. In the United States no authority is given to the Treasury Department to exempt foreign consuls from the payment of custom house duties, and consequently the consuls of the United States in foreign countries cannot claim an exemption from the payIssue or visa of ment of similar duties. Consuls are usually allowed to grant or visa passports to the subjects or citizens of their own country living within their consular jurisdiction, but not to foreigners.3 But consuls of the United States in countries in which there is a resident minister are not permitted to issue passports. In most countries Assistance of consuls may require the assistance of the police, if necessary, to aid and assist them in the maintenance of their authority over insubordinate or mutinous seamen of their own country; generally, this is accorded by treaty stipulation; otherwise, it cannot be demanded as a matter of right, but only of comity.* Access to the 11. In cases where the ambassadors or public minchief authori-isters of their own country are absent, or non-resident, they have a right of access to the authorities of the country in which they reside." But this is not universally admitted. Sometimes it is permitted as an act of courtesy, and sometimes it is limited to corre

police.

ties.

1 Phillimore, vol. ii. p. 244.

2 Nature and Character of the Consular Service, by John Green. London, 1848, p. 21.

3 Phillimore, vol. ii. p. 245. See Chapter xxx., infra.

De Martens, Droit des Gens. i. 251; Fynn's British Consul Abroad, p. 17; Statutes at Large, vol. x. pp. 904, 998, 999; and Treaties of the United States, passim.

Phillimore, vol. ii. p. 244.

spondence in regard to questions merely of a commer

cial character.1

ces.

offi

12. As a general rule, the records and papers of Immunities of the consulate are inviolable, and under no pretext to consular be seized or examined by the local authorities. But this rule is by no means universally admitted, and the exemption is more frequently granted by treaty stipulation. In Great Britain the consular property has been seized and held liable for the debt of a consul, for rent and taxes.1

nals.

13. Consuls established in the towns and seaports Subjection to of Europe are, in respect to civil matters, generally judicial tribusubject to the jurisdiction of the tribunals of the country in which they reside; and, of course, necessarily, in criminal cases. If they are in trade, they are treated, in questions relating thereto, on the same footing as all other merchants."

of

over

their fellow

14. The functions of consuls, in regard to their Authority fellow-citizens, depend, in a great measure, upon the consuls municipal law of their own country. No civil juris- citizens. diction can be exercised by them over their fellowcountrymen without express authority of law, or by treaty stipulation of the State wherein they reside; and no Christian State has yet permitted the criminal jurisdiction of foreign consuls."

15. The refusal to grant an exequatur or to receive Refusal of ex

1 See Despatches of Consuls of the United States in Germany and at Havana, MSS., passim.

* Phillimore, vol. ii. p. 245.

3 See Consular Conventions of the United States with France and with the Netherlands. Statutes at Large, vol. x. pp. 992, 1150.

See Manchester Newspapers, 1858; also Guide Pratique par Le Clercq et De Vallat, p. 11.

5 Martens, quoted by John Green, p. 24; Kent's Commentaries, vol. i. p. 54.

Phillimore, vol. ii. p. 245.

equatur.