in the absence of the master, owner, or consignee; and they are bound to provide for destitute seamen within their consulates, and to send them, at the public expense, to the United States. It is made the duty of American consuls and commercial agents, to reclaim deserters, and discountenance insubordination, and to lend their aid to the local authorities for that purpose, and to discharge the seamen cruelly treated. (d) It is also made the duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters, and passports with the consul, vice-consul, or commercial agent, if any, at the port, though this injunction only applies when the vessel shall have come to an entry, or transacted business at the port. (e) These particular powers and duties are similar to those prescribed by British *43 consuls, and to consuls under the consular convention be tween 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. (a) The consular convention between France and this country, in 1778, 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; (b) and we have no treaty at present which concedes (d) Act U. S. 20th July, 1840, c. 23, sec. 11, 17. See infra, vol. iii. 199, the treaty between the United States and Hanover, to the same effect. (e) Toler v. White, Ware, 277; Matthews v. Offley, 3 Sumner, 115. American consuls having no judicial power cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility. The Wm. Harris, Ware, 367. But when an American vessel puts into a port of necessity for repairs, a survey to ascertain the damage may, it seems, according to usage, be directed by the American consul, as part of his official duty. Potter v. The Ocean Ins. Co. 3 Sumner, 27. The English Prerogative Court, before Sir Herbert Jenner, in 1839, in the case of Aspinwall v. The Queen's Proctor, 2 Curteis, 241, held, that an American consul was not, in that capacity, permitted by the law of England to administer upon the personal estate of a domiciled citizen of the United States dying in England. The Crown takes charge of the property in trust, for payment of debts and distribution, according to the law of the owner's domicil. (a) Beawes's L. M. vol. i. tit. Consuls, pp. 292, 293. even such consular functions. (c)1 The doctrine of our courts is, (d) that a foreign consul, duly recognized 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.2 But the court, in that case, said that they could not go so far as to recognize 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 which he has offended. The French con* 44 (c) By the treaties of commerce and navigation between the United States and the Kingdom of Hanover, May 20th, 1840, article 6, and between the United States and Portugal, of 23d April, 1841, it was provided that consuls, vice-consuls, and commercial agents should have the right, as such, to sit as judges and arbitrators in differences between the masters and crews of the vessels belonging to the nation whose interests were committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the tranquillity of the country, or the consuls should require such assistance, to cause their decisions to be carried into effect or supported. By the same treaties, foreign consuls may apply for the arrest and surrender of seamen deserting from their public and private vessels in port. See, also, treaties to the like effect with Sweden, Prussia, and Russia. (d) Case of The Bello Corrunes, 6 Wheaton, 168. 1 But see the provisions of the consular convention, concluded between the United States and France, February 23, 1853, 10 U. S. Stat. 992, and also the treaties and consular conventions with San Salvador, Jan. 2, 1850, 10 U. S. Statutes, 397; with New Grenada, March 4, 1850, 10 U. S. Stat. 900; with Peru, July 26, 1851, 10 U. S. Stat. 944; with Bremen, Hamburg, and Lubeck, April 30, 1852, 10 U. S. Stat. 961; with the Netherlands, Jan. 22, 1855, 10 U. S. Stat. 1150; with the Two Sicilies, Oct. 1, 1855, 11 U. S. Stat. 650; with Belgium, July 17, 1858; and with Venezuela, Aug. 27, 1860. 2 Ship Adolph, 1 Curtis C. C. 87. A consul cannot intervene in behalf of his sovereign, in a state where the sovereign has a resident minister or ambassador. Robson t. The Huntress, 2 Wall. Jr. C. C. 59. suls are forbidden to be concerned in commerce, and, by the act of Congress of February 28, 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. (a) Though the functions of a 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 (6) that his functions require that he should be independent of the ordinary criminal jurisdiction of the country, and that he ought not to be molested, (a) Beawes's L. M. vol. i. tit. Consuls, p. 291; 1 Chitty, 57, 58; The Indian Chief, 3 Rob. Adm. 27; Vattel, b. 4, sec. 114; Arnold and Ramsay v. U. Ins. Co. 1 Johns. Cas. 363. The treaties of commerce and navigation between the United States and Hanover, May 20, 1840, art. 6, and between the United States and Portugal, of 23d of April, 1841, art. 10, afford a sample of the stipulation usual in commercial treaties on this subject: "If any of the said consuls shall carry on trade, they shall be subjected to the same laws and usages to which private individuals of their nation are subjected in the same place." American consuls abroad have no salaries, and are paid by fees of office, except the consul at London, who has a salary of $2,000. A suggestion was made in Congress in March, 1840, that it would be advisable to change our consular system in that respect, by confining consuls to their business of consuls, and to allow them salaries. The Secretary of State of the United States, in his report to Congress of the 12th December, 1846, strongly recommended a revision and amendment of the consular system of the United States; and that the number, appointment, and compensation of consuls be regulated, and their duties and fees defined. He recommended the establishment of consuls-general, especially in respect to the Barbary states, and some of the ports in the Levant; and he suggested a provision for 74 consuls and 55 vice-consuls, and also for consular agents; and that those in the more important ports be paid by salaries out of the public treasury, and with a prohibition to engage in mercantile pursuits. American consuls were generally commission merchants residing abroad; and foreign commerce ought not to be taxed with consular fees, except for limited purposes; and the fees ought to be regulated by the tonnage of the vessel. A consular code ought to define the powers and duties of consuls. (b) B. 2, c. 2, sec. 34. 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. (c) 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. (d) The same doctrine, declared by the public jurists, has been frequently laid down in the English and * 45 American courts of justice. (a) It seems, however, from some decisions in France, mentioned by Mr. Warden, (b) 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 justice against them of the Porte, (c) and they partake very considerably of the character and importance of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognizes in relation to the foreign ministers resident at Constantinople. (d) By treaty, an entire immunity is usually given to the (c) De Steck, Essai sur les Consuls, sec. 7, p. 62, Berlin, 1790, draws the same conclusion, from the commercial treaties in Europe since 1664. (d) Wicquefort's L'Amb. b. 1, c. 5; Bynk. de Foro Legat. c. 10; Martens's Summ. b. 4, c. 3, sec. 8; Beawes's L. M. vol. i. tit. Consuls; Barbuit's case, Talbot's Cases, 281; Valin's Ord. vol. i. liv. 1, tit. 9, de Consuls; Pardessus, Droit Comm. tom. iv. 148, 183; Opinions of the Attorneys-General of the United States, vol. i. 45, 302. Washington, 1841. (a) Viveash v. Becker, 3 Maule & Selw. 284; Clarke v. Cretico, 1 Taunt. 106; United States v. Ravara, 2 Dallas, 297; The Commonwealth v. Kosloff, 5 Serg. & Rawle, 545; De La Foret's case, 2 Nott & M'Cord, 217. (b) On Consuls, pp. 108-116. (c) 1 Chitty, 71. (d) Calliere, de la Manière de Negocier avec les Souverains, part i. p. 94, London, edit. 1750. The whole Frank quarter of Smyrna is at this day under the jurisdiction 1 A foreign consul's exemption from suit in a state court is a privilege which he can neither waive nor renounce. Valarino v. Thompson, 3 Seld. (N. Y.) 576; Griffin v. Dominguez, 2 Duer (N. Y.) 656. persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties. (e) Considering the importance of the consular functions, and the of European consuis, and all matters touching the rights of foreign residents fall under the exclusive cognizance of the respective consuls. So the consuls of Barcelona, in the middle ages, were clothed with many of the functions of modern resident ministers. In the negotiations of the American minister, Mr. Cushing, with the Chinese government, in 1844, the former observed, that in the intercourse between Christian and Mahometan states, the Christian foreigner was exempted from the jurisdiction of the local authorities, and subjected to the jurisdiction of the minister, consul, or other authorities of his own government. It was observed, in the Report of the Secretary of State, in 1846, already referred to, that by treaties of the United States with Turkey and China, offences committed by American citizens in those countries were to be tried and punished by the consuls; and the governments of the countries, when required, were to afford aid to enforce consular decisions.1 (e) Shaler's Sketches of Algiers, pp. 39, 307. By the treaty of amity and commerce between the United States and the Sultan of Muscat, in Arabia, ratified on the 30th of June, 1834, American consuls may be appointed to reside in the ports of the Sultan, where the principal commerce is carried on, (and which, of course, may include ports on the African coast, and in the Island of Zanzibar, within the domains of the Sultan.) Such consuls are to be exclusive judges of all disputes in suits wherein American citizens shall be engaged with each other, and to receive the property of American citizens dying within his dominions; and the persons and property of the consuls and of their households are to be inviolate. The consular establishment of the United States is very imperfect, and especially in relation to the countries in the East Indian regions. The claims of commerce, as well as the character of the United States, would seem to require that the functions of consuls, and the provision for their support, should be better regulated, and that they ought not to be left to the necessity of making their consular duties subsidiary to their business as merchants and factors. See a valuable plan in relation to consular establishments in the countries east of the Cape of Good Hope, in a pamphlet entitled "Outline of a Consular Establishment for the United States of America in Eastern Asia," and which is noticed in the North American Review for October, 1838, followed by some judicious reflections on the subject.2 Consuls residing in the five free ports of China, established by the treaty of peace between Great Britain and China, in 1842, have, by the subsequent commercial treaty in 1843, between those powers, enlarged consular functions, including those which are in some respects judicial and executive. 1 The status of consuls, by the law of nations, is clearly defined in an opinion by the late Attorney-General. Opin. of Att'ys-Gen. vol. vii. 342. The same paper contains a discussion of the validity of marriages performed by American consuls in foreign states. The subject is further examined in the same volume, p. 18. By the stat. 12 and 13 Vict. c. 68, valid marriages may be solemnized under the sanction of British consular officers. 2 The act to regulate the Diplomatic and Consular System of the United States was passed Aug. 18, 1856. Its provisions, which explicitly define the functions and authority of consuls, embrace many of the important features suggested in the above and preceding notes. |