« ForrigeFortsett »
convention between the United States and France, in 1788; and 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 this country, 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 we have no treaty at present which concedes even such consular functions. The doctrine of our courts is, that a foreign consul, duly recognised by our 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 acts. 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.
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
a 1 Beawes' L. M. tit. Consuls, p. 292, 293. 6 Mr. Pickering to Mr. Pinckney, January 16th, 1797. c Case of the Bello Corrunes, 6 Wheaton, 168.
which he has offended. The French consuls are forbidden to be concerned in commerce, and, by the act of Congress of February 28th, 1803, American consuls residing on the Barbary coast, are forbidden also; but British and American consuls are generally at liberty to be concerned in trade; and in such cases the character of consul does not give any protection to that of merchant, when these characters are 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 quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports.
A consul is not such a public minister as to be entitled 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 fuuctions require that he should be independent of the ordinary criminal jurisdiction of the country, and 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. 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.a 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. Consular privileges are much less extensive in Christian than in Mahometan countries. In the latter they cannot be imprisoned for any cause whatever, except by demanding jus
a Beawes' L. M. vol. 1. tit. Consuls, p. 291. 1 Chitty, 57, 58. 3 Rob. Adm. Rep. 27. The Indian Chief.
6 B. 2. c. 2, sec, 34.
c Wicquefort's L’Amb. b. 1. c. 5. Bynk. de foro legat. c. 10. Martens' Summ. b. 4. c. 3. sec. 8. Beawes, vol. 1. tit. Consuls. Pardessus, tom. 4. 148. 183.
against them of the Porte, and they partake very considerably of the character of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognises in relation to the foreign ministers resident at Constantinople. By treaty an entire immunity is usually given to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties.
Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the constitution of the United States, which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers, and the federal jurisdiction is understood to be exclusive of the state courts. V
a Viveash v. Becker, 3 Maule & Selw. 284. Clarke v. Cretico, 1 Taunton, 106. United States v. Ravara, 2 Dallas, 297. The Commonwealth v. Korsloff, 5 Serg. & Raw. 545. 1 Chilly, 70.
b On Consuls, p. 108–116.
e Commonwealth v. Kosloff, 5 Serg. & Raw. 545. Hall v. Young, 5 Pickering, 80.
OF THE DECLARATION, AND OTHER EARLY MEASURES
OF A STATE OF WAR.
In the last Lecture, we considered the principal rights and duties of nations in a state of peace ; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose. War, to use the language of Lord Bacon, is one of the highest trials of right ; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and gives colour to the extravagant theory of Hobbes, who maintains, that the natural state of man is a state of war of all against all ; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist, that continual war is the natural instinct and appetite of man in a natural state. It is, doubtless, true, that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and necessary result of science and civilization.
a Cic. de Of. 1.11. and 23. Grotius, b. 1. ch. 1. Burlamaqui, part 4. C. 1. sec. 4. Vattel, b. 4. c. 1.
b Bacon's Works, vol. 3. p. 40. « Leviathan, part 1.c. 13.