« ForrigeFortsett »
pp. 189, 190, on this point, sanction his acting as commercial agent, by consent of the local authorities, before receipt of his exequatur.
? Exequatur. 2 Phill. Int. Law, 241. This is in various forms in different countries. Lawrence's Wheaton, p. 423, note 143.
The more common form of erequatur in use in France, England, Spain, Italy, the United States, Brazil, &c., is by letters patent signed by the executive head of the nation, and countersigned by the minister of foreign affairs. In other countries, as in Russia and Denmark, the consul simply receives notice that he is recognized, and that the necessary orders have been given to the local authorities at his residence. In Austria, exequatur is simply written upon his commission, and authenticated by the Emperor's seal. Guide Pratique des Consulats, vol. 1, p. 134.
The erequaturs of French consuls are asked for and sent to their des tination by the French minister accredited to the nation of the consul's residence. Guide Pr. des Cons., vol. 1, p. 135.
3 By the general usage, exequaturs are issued free of charge. They are required to be furnished free of charge, by the treaty between the United States and Italy,
Feb. 8, 1868, Art. II., 15 U. S. Stat. at Large, (Tr.,) 185. Denmark, April 26, 1826," IX., 8 Id., 342. France, Feb. 23, 1853, « 1., 10 ld., (Tr.,) 115. See 8 Id., 106. Belgium, Dec. 5, 1868, - II., U. S. Cons. Reg., (1870,) T 500. New Granada, May 5, 1850, “ II., 10 U. S. Stat, at L., 900.
Portugal imposes the same charge as is required by the nation of the consul in question. England, Italy, Spain and Brazil impose charges ranging from forty to four hundred and fifty francs. Guide Pr. des Cons., vol 1, p. 138.
167. The last two articles do not apply to subordinate officers temporarily acting in the cases authorized by article 106.
The French rule requires an exequatur for the consular agents commissioned by consuls, but not for consular pupils, chancellors, interpreters, clerks, or other secondary officers, nor for temporary incumbents dis. charging the functions of the office during vacancy. Guide Pratique dix Consulats, vol. 1, p. 137.
Notifying appointment to local authorities.
168. A consul,' on arriving at his post or receiving his commission there, must notify his appointment to the authorities of the city port or place constituting his district.
* The appointment of a deputy consul or consular agent inust be notiried to the local authorities of the place where he is to act. Without their recognition of his appointment, it would be improper for a deputy
consul to communicate officially with them. United States Consular Regulations, (1868,) p. 154.
169. A consul receiving a formal act of permission, · must notify the same to the authorities mentioned in the last article.'
From the time of such notification only, he is entitled to the immunities provided in this Chapter.'
1 The treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, Art. XXX., (8 De Clercq, 193,) requires that consuls, vice-consuls, or simple consular agents, must also notify their appointment to the local authorities of the place of their exequatur. It is the usage of some governments to give this notice to the local authori. ties themselves, so that the consul is not charged with the duty. Guide Pr. des Cons., vol. 1, p. 135.
! On the exhibition of the exequatur, consuls shall enjoy the rights, prerogatives and immunities which are granted, Convention between the United States and Italy, Feb. 8, 1868, 15 U. 8. Stat. at Large, 185, Art. II.
POWERS OF CONSULS.
ARTICLE 170. Powers conferred or defined by this Code.
171. Protection of members of friendly nation.
Powers conferred or defined by this Code.
1. In reference to deserters, in the cases and to the extent mentioned in Section II. respecting EXTRADITION OF DESERTERS, of Chapter XVIII., entitled ExTRADITION;
2. In reference to the administration of estates, in the
cases and to the extent mentioned in Chapter XXVI., entitled RIGHTS OF PROPERTY ;
3. In reference to wrecks, in the cases and to the extent memtioned in Chapter XXVII., entitled WRECKS;
4. In reference to marriage, in the cases and to the . extent mentioned in the Chapter entitled MARRIAGE, of the Title respecting THE CONDITION OF PERSONS, in Part V., concerning PRIVATE RIGHTS OF PERSONS ;
5. In reference to the sale of ships and adjustment of average, in the cases and to the extent mentioned in the article entitled Authorizing Sale of Wrecked Property, in Chapter XXVII., concerning WRECKS and in the article respecting Consular Power, in Chapter XXXIV., entitled GENERAL AVERAGE ;
6. In reference to judicial proceedings affecting members of his nation, in the cases and to the extent mentioned in the article respecting Power of consuls to appear for members of his nation, in the Title concerning JUDICIAL POWER, of Part VI., entitled ADMINISTRATION OF JUSTICE ; and,
7. In reference to controversies, order and discipline on board ship, in the cases and to the extent mentioned in the article respecting Judicial power of consuls, in the Title concerning JUDICIAL POWER, of Part VI., entitled ADMINISTRATION OF JUSTICE. .
Protection of members of friendly nation.
171. A consul may exercise the powers mentioned in the last article, for the protection of the rights of person and property of members of any friendly nation whatever, which has no public agent at the same place. Guide Pratique des Consulats, vol. 1, p. 376. . The power does not extend to ordinary notarial acts. Non-contentious jurisdiction.
172. A consul has power, subject to such qualifications as may be contained in the laws or instructions of his government, to take and authenticate, at any place within his district :
1. Affidavit and depositions by any inmate of a ship
of his nation, or by any member of his nation and affidavits and depositions by any person whatever, affecting the interests of a member of his nation ;'
2. Contracts, transfers, or other instruments to which a member or domiciled resident' of his nation is a party ;
3. Wills made by members of his nation, or which, by the provisions of this Code, may be made according to the law of such nation ;
4. Contracts and transactions by or between any parties whomsoever, which relate to property situated or transactions to be had within the jurisdiction of the consul's nation;
5. Protests, declarations, and other notarial acts affecting his nation, or members, or dómiciled residents thereof, such as a notary public within his nation may perform ; and also,
6. To execute commissions, issued out of the courts of his nation, for taking the testimony of witnesses within his district; and for this purpose he shall have the right to call upon the local authorities of his district to compel the attendance of witnesses and their depositions.
The first four subdivisions are suggested by treaties, of which the following will serve as examples. The provision in the treaty between the United States and Italy, on this subject, (15 U. S. Stat. at L., (Tr.,) 185, Art. X.,) is to the following effect :
Consuls-general, consuls, vice-consuls and consular agents may take, at their offices, at their private residences, residence of the parties, or on board ship, the depositions of the captains and crews of vessels of their own country, of passengers on board of them, and of any other citizen or subject of their nation. They may also receive, at their offices, conform. ably to the laws and regulations of their country, all contracts between the citizens and subjects of their country, and the citizens, subjects, or other inhabitants of the country where they reside, and even all contracts between the latter, provided they relate to property situated or to busi. ness to be transacted in the territory of the nation to which such consular officer may belong.
Article VII. of the consular convention between France and Portugal, July 11, 1866, (9 De Clercq, 582,) provides that:
dence of the parties, or on board vessels, declarations and other acts
which the masters, crew and servants, passengers and members of their nation wish to make or perform, including testaments, and all other nota. riai acts and contracts of every nature.
It also provides, that such acts shall be drawn up in the form required by the laws of the state of which the consul is a member, subject, how. ever, to compliance with all the formalities required by the law of the country where the act is to receive its execution ; while, if the act has for its object a transaction affecting movables situated in the country where the consul resides, it ought to be drawn up in the forms required and according to the provisions of the law of that country.
By the consular convention between France and Austria, 11 December, 1866, (9 De Clercq, p. 669, Art. IX.,) the acts and transactions which consuls may thus take are defined somewhat differently, as including declarations which masters of vessels, &c., and members of their country wish to make; also all testamentary dispositions by members of their nation, and all other acts of civil right which concern them; also simple acts conven. tional between one or more of their own nationality and other persons of the country in which they reside.
The consular convention between France and Brazil, December 10, 1860, (8 De Clercq, 153, Art. VI.,) provides, that when these transactions relate to real property situated within the country, a competent notary public shall be called in to unite in the authentication, and to sign the same together with the clerk or consular agent, in order to render the act valid. See United States Consular Regulations, (1870) T 33, and treaties in Appendix No. 1.
i United States Consular Regulations, (1870,) 238.
9 Since the law of the domicil may sometimes apply to the transaction, the rule should be extended to include the acts of domiciled residents.
3 United States Consular Regulations, (1868, p. 280. . 4 It is stated in the United States Consular Regulations, (1870, T 308, that “in such cases the consular officer does not act in his quality of an Agent of the Federal Government, but simply as a citizen of the United States whose local position and character render him available to his fel low-citizens for such services as might have been rendered by a private individual.”
This method of taking depositions, in a foreign country, has always been familiar practice in the courts of Admiralty ; and it should seem proper to extend the power to all courts authorized by the consul's nation,
Some of the States of the American Union have made provision by law for the taking of depositions, to be used in suits pending in other States by bringing the deponent within the operation of their own statute against perjury; and national comity seems to require the enactment of similar provisions in all countries.
Other powers may be conferred.