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.

4

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.

REFUSAL OR REVOCATION

[§ 463

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

1 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.

4 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, 1867, S. Ex. Doc. No. 1, special session of the Senate, 6, 36, 38, Moore, Dig., V, 23; also Mr. Marcy, Secy. of State, to Commander Figanière, Portuguese 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. They possess, moreover, a certain representative character as affecting the commercial interests of the appointing country. 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 government 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.

RESPECT FOR THE CONSULAR FUNCTION

[$ 465

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

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.

upheld in the United States by the Federal law punishing one who falsely assumes or pretends to be a consular officer of a foreign government duly accredited as such to the Government of the United States, with intent to defraud such government or any person, and takes upon himself to act as such officer, or in such pretended character demands or obtains, or attempts to obtain from any person or from such foreign government, or from any officer thereof, any money, paper, document, or other thing of value. It is doubtless also possible to enjoin one who interferes with or obstructs the performance by a consul of his official duties.2

In their intercourse with local or minor officials oftentimes ignorant of the law of nations and of the terms of existing conventions, consular officers are not infrequently subjected to humiliation, and occasionally to insult.3 When a foreign consular officer within the United States is the victim of such treatment, there appears to be no law which subjects the offender to criminal prosecution in the Federal courts. Frank expression of regret is, nevertheless, to be anticipated upon reasonable protest duly lodged with the superior authorities, State or Federal. If, because of the absence of an appropriate statute or for any other reason, the State authorities are unable or indisposed to inflict any penalty upon the offender, the country to which the consul belongs may justly seek redress through the diplomatic channel.

1 Act of June 15, 1917, Chap. 30, title VIII, § 2, 40 Stat. 217, 226. Also Von Thororovitch v. Franz Josef Beneficial Association, 154 Fed. 911. See also For. Rel. 1906, II, 931-934, respecting the counterfeiting of the American consular seal at Palermo.

2 If the consul be an alien, it is believed that he may rely upon paragraph 17, § 24, Chap. 2, of the Federal Judicial Code of Mar. 3, 1911, conferring original jurisdiction upon the United States District Courts, "of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States." Interference with the performance of the consular functions of one empowered to exercise the same by the State to which he is appointed as well as by his own country, violates the law of nations, and in most instances, also, the provisions of treaties which the consular officer may justly invoke.

See, also, Act No. 51 of April 15, 1913, Pennsylvania Sess. Laws of 1913, making it under certain circumstances unlawful for any person, firm or corporation to use the word "Consul" or "Consulate", or the coat of arms of a foreign country for exhibition, display, or advertising purposes, and providing a penalty therefor.

3 For. Rel. 1905, 517-524, respecting treatment accorded Mr. Winslow the American Consul-General, by a judge of the first instance at Guatemala, in 1905.

Case of the German consul at Cincinnati, Moore, Dig., V, 41, and documents there cited; also Opinion of Mr. Garland, Atty.-Gen., May 5, 1887, respecting the operation of § 4062, Rev. Stats., 19 Ops. Attys.-Gen., 16; also Opinion of Mr. Bradford, Atty.-Gen.. 1 Ops. Attys.-Gen. 41.