In the United States, exequaturs are signed by the President and bear the great seal of the United States; they are issued only to foreign consular officers possessing or exhibiting a regular commission signed by the chief executive of the appointing State and under its great seal.1 They are not issued to substitute or subordinate officers of a foreign State. To such individuals there is issued a less formal document, signed by the Secretary of State and bearing the seal of the Department of State.3

The commission of an American consul-general or consul after his compliance with preliminary requirements relative to taking the prescribed oath of office and the filing and approval of a bond, is transmitted to the appropriate diplomatic representative with instructions to apply for an exequatur. The latter document when obtained by the representative is transmitted to the consul together with the commission through the medium of the consulate-general, if there be one having supervisory powers; otherwise directly to the consul's address. The Department of State may direct a consul to proceed to his post and enter upon the discharge of his duties with the consent of the local authorities, prior to the arrival of his exequatur.5// If the United States be without diplomatic representation in the foreign country, the commission of a principal consular officer will be delivered or sent directly to him, with instructions to transmit it without delay, on arrival at his post, to the proper department of the government, and to request an exequatur."

It is customary to transmit to the diplomatic representative, for recognition and authority, the certificates of appointment of accredited representative of his country entitled to all of the privileges pertaining to the consular office, even though the government which sends him has been overthrown, and an apparently successful revolutionary government established in its place. United States v. Trumbull, 48 Fed. 94.

1 Mr. Evarts, Secy. of State, to Mr. Sherman, Secy. of Treas., Dec. 12, 1879, 131 MS. Dom. Let. 13, Moore, Dig., V, 14.

The issuance of an exequatur is dependent upon the submission to the President of the consul's commission emanating either from the head of the appointing State, or from an officer thereof known to possess the power of appointing consular officers. Mr. McLane, Secy. of State, to Mr. Lederer, Austrian consul-general, Feb. 28, 1834, MS. Notes to For. Legs., V, 168, Moore, Dig., V, 15; Mr. Forsyth, Secy. of State, to Baron de Mareschal, Austrian Minister, March 21, 1839, MS. Notes to German States, VI, 51, Moore, Dig., V, 16.

2 Mr. Evarts, Secy. of State, to Mr. Shishkin, Russian Minister, Nov. 14, 1879, MS. Notes to Russian Legation, VII, 290, Moore, Dig., V, 15.

Mr. Evarts, Secy. of State, to Mr. Sherman, Secy. of Treas., Dec. 12, 1879, 131, MS. Dom. Let. 13, Moore, Dig., V, 14; Mr. Forsyth, Secy. of State, to His Highness Prince Metternich, Dec. 26, 1834, MS. Notes to German States, VI, 3, Moore, Dig., V, 16.

Instructions to American Consular Officers (1896), § 48. 6 Id., § 50.

* Id., § 49.

all subordinate American officers (except those of consular clerks, interpreters and marshals); and in such cases the subordinate officer is instructed not to enter upon his official duties before receiving recognition from either the government or local authority of the country.1

With respect to colonies or dependencies, it is said to be customary to instruct the consul-general, or principal consular officer therein, to apply to the proper colonial authority for permission for the newly appointed consular officer to act temporarily in his official capacity, pending the result of the request for an exequatur.2

2

$ 463. Refusal or Revocation.

While a State may at will refuse an exequatur to a foreign consul,3 this right is rarely exercised by the United States, except for cause, such as, for example, the previous misconduct of the appointee, or action on his part deemed adverse to the State.5.

The Department of State declared in 1897, that as a general rule of international intercourse, a government may justly revoke an exequatur without assigning any reason for so doing; that if cause is assigned for revocation, discussion of the sufficiency thereof is invited, and opportunity offered for the presentation of defensive evidence coupled with a request for reconsideration of the action taken; that if, however, no reasons are offered, the State revoking the exequatur cannot be compelled to give any." In 1908, however, the Department of State expressed surprise and regret at the "abrupt action" of Honduras in canceling the exequaturs of the American consul and vice-consul at Ceiba, "with

1 Instructions to American Consular Officers (1896), § 51. "The certificates of appointment of subordinate officers in countries in which the United States have no legation are sent to the principal officer, with instructions to request, from the proper authority, the recognition or exequatur accorded to such officers." Id., § 52.

2 Id., § 53. "Upon the application of the consular officer, or of the consulgeneral where there is one, the diplomatic representative may make to the minister of foreign affairs a request for temporary permission to act in the case of any consular officer under his jurisdiction." Id., § 54.

3 Mr. Marcy, Secy. of State, to Mr. Wheeler, Minister to Nicaragua, May 11, 1855, MS. Inst. Am. States, XV, 236, Moore, Dig., V, 28.

Mr. Blaine, Secy. of State, to Mr. Morgan, May 31, 1881, MS. Inst. Mexico, XX, 267, Moore, Dig., V, 28.

5 Mr. Adee, Second Assist. Secy. of State, to Mr. Sickles, Dec. 26, 1899, MS. Inst. Spain, XXII, 658, Moore, Dig., V, 29.

Mr. Sherman, Secy. of State, to Mr. Pringle, American Chargé, Aug. 18, 1897, For. Rel. 1897, 338, Moore, Dig., V, 27; Mr. Seward, Secy. of State, to Baron de Wetterstedt, April 23, 1866, MS. Notes to Sweden, VI, 174, Moore, Dig. V, 23.

}

out customary diplomatic notification" to the United States, " and without opportunity for interchange of views and temperate investigation of the facts." It was urged that the cancellation of the exequaturs be withdrawn, and that any complaint which the Government of Honduras might feel constrained to make concerning the course of the officers in question "should take the appropriate diplomatic channel of investigation and amicable settlement." The Honduranean Government yielded.2

3

The revocation of his exequatur may be anticipated as the natural consequence of certain conduct on the part of a consul, such as the commission of illegal acts, or manifest hostility towards the State of his sojourn especially when it is engaged in war, or the endeavor to use his consular position to defeat the ends of justice by refusing to appear as a witness in a suit pending against himself.5

■ Mr. Bacon, Acting Secy. of State, to the Honduranean Minister, July 31, 1908, For. Rel. 1908, 458, where it was also said: "It is very unfortunate, and in some regards most embarrassing, that a question of this character should be precipitated at a moment when we are earnestly acting, coincidently with Mexico, in the interest of peace in Central America. If the American

consul and vice-consul at Ceiba be shown to have done any act contrary to international precept, to the instructions of their Government, or to the friendly and impartial purposes of the United States, a frank ascertainment of the facts, and an equally frank comparison of the views of the two Governments could hardly fail to result in a cordial agreement touching the course to be pursued for a friendly closure of the incident. Your Government, Mr. Minister, like mine, can expect nothing less than fair play in such a case, and it certainly can ask no more." Also Art. 5, declaration of the Institute of International Law, Sept. 26, 1896, Annuaire, XV, 304.

2 For. Rel. 1908, 469; id., 456-470, respecting the matter generally.

3 Coppell v. Hall, 7 Wall. 542, Moore, Dig., V, 19. See, also, Mr. Jefferson, Secy. of State, to Mr. Duplaine, Oct. 3, 1793, Am. State Pap., For. Rel., I, 178, Moore, Dig., V, 19. Also Moore, Dig., IV, 533-534, and documents there cited, concerning the revocation of the exequaturs of three British Consuls in 1856, on account of their violation of the neutrality laws of the United States during the Crimean War.

Case of Mr. Bunch, Moore, Dig., V, 20-21, and documents there cited; Case of Mr. Rogers, Moore, Dig., V, 22-23, and documents there cited; also Mr. Fish, Secy. of State, to Mr. Stevens, June 23, 1873, MS. Inst. Paraguay, I, 163, Moore, Dig., V, 25.

5 Janssen's Case, in Report of Mr. Seward, Secy. of State, to the President, March 28, 1867, accompanying message of President Johnson to the Senate, March 28, 1967. S. Ex. Doc. No. 1, special session of the Senate, 6, 36, 38, Moore, Di V, 23; also Mr. Marcy, Secy. of State, to Commander Figanière, Portugue Chargé d'Affaires, Feb. 19, 1855, MS. Notes to Portugal, VI, 143, Moore, Dig., V, 20.

Concerning the gross misconduct of certain German consular officers in American territory while the United States was a neutral with respect to the World War, see House Report No. 1, 65 Cong., I Sess., Cong. Record, Vol. LV, Part 1, 319, 321.

TITLE D

PRIVILEGES AND IMMUNITIES

1

§ 464. Under International Law and Treaty.

Consuls are not diplomatic officers, and cannot of right claim the privileges and immunities accorded the latter. Consuls are, nevertheless, officers both of the State which appoints and that which receives them.1 They possess, moreover, a certain representative character as affecting the commercial interests of the appointing country.2 Such officers are for many purposes the spokesmen, of their fellow countrymen residing in the same district; and upon the death of the latter are oftentimes made by treaty the legal representatives of the non-resident heirs.3 The right of intercourse with local authorities, executive or judicial, is frequently expressly acknowledged, and upon occasion, in the absence of diplomatic representation, the right of access to the national goy ernment of the State.5

The bare authorization of a consular officer to perform certain duties commonly entrusted to diplomatic officers does not serve to attach to him a diplomatic character, or to clothe him with diplomatic immunity. A foreign consul not acknowledged by the Department of State to possess the character of a public

1 Consular Regulations of the United States (1896), § 72. See, also, Moore, Dig., V, 32-33, and documents there cited; The Anne, 3 Wheat. 435, 445–446. Concerning Consular Jurisdiction in Oriental and Certain Other Countries, see Extraterritorial Jurisdiction, supra, §§ 259–264.

2 Consular Regulations of the United States (1896), § 71.

3 See, for example, Art. X, consular convention with the German Empire, Dec. 11, 1871, Malloy's Treaties, I, 553; Art. XV, consular convention with Belgium, March 9, 1880, id., I. 99.

See, for example, Art. IX, consular convention with Sweden, June 1, 1910, Charles' Treaties, 114.

5 Id.; also Art. VIII, consular convention with the German Empire, Dec. 11, 1871, Malloy's Treaties, I, 552.

It is oftentimes provided in extradition treaties that requisitions for the surrender of fugitives from justice shall be made by consular officers of the contracting parties in the absence from the country or its seat of government of diplomatic representatives. See, for example, Art. III, convention with France, Jan. 6, 1909, Charles' Treaties, 35. Also Consular Regulations of the United States (1896), § 71.

minister will not be regarded as such by the courts of the United States.1

2

§ 465. Respect for the Consular Function.

The yielding of consular privileges and immunities is for the purpose of facilitating the performance of the consular function.2 Such performance is retarded unless respect for that function be maintained, and contempt for it both prevented and penalized.3 Respect is enhanced by provisions in numerous conventions of the United States conferring upon a consul special privileges, such as, for example, that of giving his testimony in a civil case, at his consulate rather than in open court. The consular function is

1 In re Baiz, 135 U. S. 403, 424, 431-432, Moore, Dig., IV, 650; also Mr. Foster, Secy. of State, to Mr. Heard, No. 151, Dip. Series, Oct. 31, 1892, MS. Inst. Corea, I, 414, Moore, Dig., IV, 445.

The statutory law of the United States forbids an American consular officer to exercise diplomatic functions, or to hold any diplomatic correspondence or relation on the part of the United States in, with or to the government or country to which he is appointed, or any other country or government, when there is in such country any officer of the United States authorized to perform diplomatic functions therein; or in any case, unless expressly authorized by the President to do so. Rev. Stat. § 1738.

It may be noted that Mr. D. C. Poole, Jr., a consul, was accorded the "rank of counselor" and assigned to the American Embassy in Russia in 1918. Diplomatic and Consular Service of the United States, corrected to July 26, 1919. Concerning the situation where a consular office is formally superadded to the diplomatic office filled by a single individual, see Diplomatic Missions, Classification of Ministers, supra, § 411.

2 Stowell, Le Consul, 139, calling attention to Art. XVI of the Jay Treaty with Great Britain, of Nov. 19, 1794, Malloy's Treaties, I, 600.

3 "Consuls are to be considered as distinguished foreigners, dignified by a .commission from their sovereign, and specially recommended by him to the respect of the nation with whom they reside. They are subject to the laws of the land indeed precisely as other foreigners are, a convention where there is one making a part of the laws of the land; but if, at any time, their conduct should render it necessary to assert the authority of the laws over them, the rigor of those laws should be tempered by our respect for their sovereign, as far as the case will admit. This moderate and respectful treatment towards foreign consuls it is my duty to recommend, and press on our citizens, because I ask it for their good, towards our own consuls, from the people with whom they reside." Communication of Mr. Jefferson, Secy. for Foreign Affairs, to Mr. Newton, Sept. 8, 1791, 4 MS. Am. Let. 283, Moore, Dig., V, 33.

"Ministers and Consuls of foreign nations are the means and agents of communication between us and those nations, and it is of the utmost importance that while residing in the country they should feel a perfect security so long as they discharge their respective duties and are guilty of no violation of the law of nations. As in war the bearers of flags of truce are sacred, or else wars would be interminable, so in peace ambassadors, public ministers, and consuls, charged with friendly national intercourse, are objects of especial respect and protection, each according to the rights belonging to his rank and station." President Fillmore, Annual Message, Dec. 2, 1851, Richardson's Messages, V, 118.

4 See, for example, Art. IV of consular convention with Sweden, June 1, 1910, Charles' Treaties, 113; Art. IV of consular convention with Belgium, March 9, 1880, Malloy's Treaties, I, 95. Also infra, § 476.