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1. To issue passports' to its own members, but to no others;
2. To sanction and verify the emancipation of minors ; and,
3. To do any other act consistent with the provisions of this Code, or special compact, for the facilitation of commerce; the promotion of the lawful interests of his nation, and those of its members or domiciled residents; and the protection of property bearing its national character; subject, however, to the control of the nation in which the consul resides.
1 As provided in the articles on Passports and Safe-conducts, and Effect of Passports, in Section 1, as to RIGHTS OF RESIDENCE, of Chapter XXV., entitled PERSONAL RIGHTS OF FOREIGNERS.
By the American rule, this power is not exercised by consuls, except in the absence of a public minister. And this comports with the original usage. Halleck, p. 252, $ 15. Bluntschli, however, (S251, note,) thinks the consul the most appropriate of all officers to be vested with the power. 2 Bluntschli, S 266.
Certified copies of consular acts.
174. A copy of any instrument which was made or authenticated by virtue of the consular powers, when certified' to be a copy by the consul, under his official seal, is admissible before all tribunals and officers as sufficient primary evidence of the original.
Translations into the language of the nation of the consul's residence of any such instruments, or of official documents of his own nation, of every nature, certified in like manner to be translations, are in like manner admissible within the nation of his residence, and with the same effect.
i Consular convention between France and
Portugal, July 11, 1866, Art.VII., 9 De Clercq, p. 582.
Austria, Dec. 11, 1866 IX., 9 Id., 669. And other French treaties.
• The consular convention between France and Portugal, July 11, 1866, (9 De Clercq, p. 582, Art. IV.,) and the treaty between the United States and Italy, (15 U. Stat. at L., (Tr.,) 185,) make such certified copies evidence equally with the originals.
See, also, treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, Art. XXXIX., 8 De Clercq, 193 ; and the con. sular convention between France and Brazil, December 10, 1860, 8 De Clercq, p. 153, Art. VI.
The French treaties contain a provision, that in case of doubt arising as to the authenticity of a certified copy of such transaction, the consular officer must permit its comparison with the original, on the request of any person interested, and allow him to be present at such comparison.
3 By the treaty between the United States and Belgium, December 5, 1868, Art. IX., (U. S. Cons. Reg., (1870,) 500,) the original and copies of such official documents, when duly authenticated, are made receivable as legal documents in the courts of justice of each of the countries. But it does not seem advisable to extend the rule so far.
175. Consular acts are presumed to be authorized, by the instructions of the consuls, until the contrary appears.
Protection of rights, and complaints against wrongs.
176. A consul may apply to the authorities, whether judicial or executive, within his district, upon any infraction of the provisions of this Code, or special compact between the two nations, affecting his nation on a subject within the scope of his powers ; ' or affecting its members or domiciled residents ; ' or for the purpose of protecting the interests of such nation or persons.
If protection and redress cannot be thus obtained, and there is no public minister of such nation accredited to the government of the country, whether a nation or a colony or transmarine province,' in which he resides, he may for the same purposes address such government directly.
Convention or treaty between the United States and Italy, February 1868, 15 U. 8. Stat at L., (Tr.,) 185, Art. IX.
See United States Consular Regulations, (1870) T 31, and treaties in
Austria, Dec. 11, 1866, Art. VIII., 9 De Clercq, p. 669.
Portugal, July 11, 1866, VI., 9 Id., p. 582. The two latter contair a further provision, that the consuls shall have the right to take all steps which they may judge necessary to obtain full and prompt justice.
See, also, treaty of friendship, commerce and navigation between France and Peru, March 9, 1861, 8 De Clercq, 193, Art. XL.
"He has not general power to vindicate the prerogatives of his nation ; e. g., to interpose a claim on its behalf in a court of prize, for a violation of its neutral territory. The Anne, 3 Wheaton's U. S. Supreme Ct. Rep., p. 435.
He may intervene in court for the protection of the interests of members of his nation, without special authority. Bello Corrunnes, 6 Wheaton's U.S. Sup. Ct. Rep., 152; London Packet, 1 Mason's U. 8. Circ. Ct. Rep., 14; Robson v. The Huntress, 2 Wallace Jr.'s U. S. Circ. Ct. Rep., 59.
3 This right to address the governor of a colony or transmarine prov. ince, is authorized by treaty between the United States and the great pashalics of the Turkish empire; and by a recent treaty between the United States and the Netherlands, Aug. 26, 1852, 10 U. S. Stat. at Large, (Tr.,) 66. And an extension of the rule to other European nations is suggested in United States Consular Regulations, (1868, pp. 35, 36.
A part from such a rule as this, the consul, in case of grave difficulties arising between him and any authorities of the nation of his residence, is limited to protesting, and should meanwhile remain in his ordinary functions, and await instructions from his government. Guide Pratique des Consulațs, vol. 1, p. 149.
177. A consul has no other diplomatic powers than those mentioned in this Section.
United States Consular Regulations, (1870,) pp. 147, 148 ; Halleck, p. 242, $ 5; The Anne, 3 Wheaton's U. S. Supreme Ct. Rep., 435.
By the United States Instructions to Diplomatic Agents, ($ 23,) consuls are under the direction of the minister or chargé d'affaires of the United States, in the country where they respectively reside; and in the transaction of their official duties they can only address the government of that country through such officer. Several treaties, however, recognize the right to address the government directly in some cases. See note 3, to the last article.
Bluntschli, (8 250,) regards consuls as diplomatic agents when charged with watching the execution of commercial treaties, or with reporting on the state of the country where they reside, &c., &c.
Termination of powers. 178. The powers of a consul are terminated, either: 1. By his death;
2. If appointed for a fixed term, by the expiration of the term ;
3. If serving temporarily, by the resumption of duty by his chief, or by appointment of a new chief;
4. By the revocation of his appointment by the na
tion or authority by which it was made, and notice thereof to the consul, to the nation of his residence, and to the local authorities;
5. By his voluntary withdrawal at any time, and notice thereof to the nation of his residence, and to the local authorities; or,
6. By revocation of the permission granted by such nation, and notice thereof to the consul, and to his na tion.'
* If the reasons are personal, and for which permission to act might have been refused, according to Article 99, it is sufficient to state the fact, without mentioning particulars. Treaty or Convention between the United States and France,
February 23, 1853, Art. I., 10 U. S. Stat. at L., 992. The Netherlands, January 22, 1855, III., 10 Id., 1150.
New Granada, May 4, 1850, II., 10 Id., 900. And see note to Article 1135.
Exclusion in case of war is provided for in Book Second of this Code.
Powers not terminated by change of government.
179. Notwithstanding a change in the government of either nation, or a cessation of diplomatic intercourse, the powers of a consul continue until revoked as provided in the last article.
See Guide Pr. des Cons., v. 1, p. 149. Consuls not being representatives of the nation, their functions may be continued in such cases.
IMMUNITIES OF CONSULS.
As to their immunities generally, consuls may be considered as of three classes :
1. Those who neither owe allegiance to, nor have a domicil in, the nation of their residence ;
2. Those who do not owe allegiance to, but have a domicil in, such nation; the existence of a domicil being indicated either by previous volun. tary residence, or by engaging in trade or holding property ; and,
3. Those who both owe allegiance to, and have a domicil in, such nation.
Halleck, without defining these classes so precisely as to avoid am. biguity in some cases, states the existing doctrine of exemption as follows:
Those who owe no allegiance, hold no real property, engage in no business, and have no domicil in the country, have the personal exemptions and disabilities of aliens who are mere sojourners.
Those who hold real estate, engage in business, and have a fixed residence, are considered as foreigners domiciled; and the consular privileges do not extend to their property or trade so as to change its national character.
Those who owe allegiance can claim no exemptions enjoyed by others in virtue of alienage, but are entitled to those which pertain to the office and are necessary for the performance of its duties, unless they are excluded by conditions imposed in the exequatur.
In view of this classification, and the fact that the ground of consular immunity is simply the facilitation of the consular functions, the following provisions are framed to prescribe an uniform rule of personal immunities in whatever can affect the exercise of consular functions, subject. only to such exemptions as may be created by the conditions imposed in the exequatur ; while, on the other hand, in all that does not hinder the exercise of consular functions, such as taxation, searches of papers not belonging to the affairs of the consulate, attendance as witnesses within a convenient distance, consuls, of whatever class, are left to the rules applicable to their private status, whether that of transient foreigners, of domiciled foreigners, of property owners and traders, or of members owing allegiance.
This is, substantially, the doctrine which was declared by Art. XVI. of the treaty between the United States and Sardinia, (1838,) 8 U. 8. Stat. at L., p. 518.
Larger immunities have been secured by special compact in the case of non-Christian powers. Some of the earlier treaties exempted consuls from payment of duties on goods brought in for use of their houses and families. Treaty between the United States and Algiers, 1795, 1815 and 1816, 8 U. 8. Stat. at L., 136, 227, and 247.
The usual provision of the treaties is to the effect that if consuls exercise commerce, they shall be subjected to the same laws and usages to which private individuals of their nation are subject in the same place. Treaty between the United States and
Hanover, (1840,) Art. VI., 8 U. 8. Stat. at L., 556.
IX., 9 là, (Tr.,) 60.
(1799) XXV., 8 Id., 176.
X., 8 Id., 382.
(1832) VIII., 8 Id., 448.
IV., 9 Id., (Tr.,) 154.
X., 9 Id., (Tr.,) 181.