APPENDIX No. VIII.

DIGEST OF OPINIONS OF ATTORNEYS-GENERAL AND JUDICIAL DECISIONS, OF INTEREST

TO CONSULAR OFFICERS.

765 CR-35

DIGEST OF OPINIONS OF ATTORNEYS-GENERAL AND JUDICIAL DECISIONS OF INTEREST TO

CONSULAR OFFICERS.

Status and Jurisdiction of Consuls.

A Consul, though a public agent, is supposed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to subjects of his own country, but it is not competent for him, without the special authority of his government, to interpose a claim on account of the violation of the territorial jurisdiction of his country. (The Anne, 3 Wheaton, 435 [445.])

A Consul of a foreign power, though not entitled to represent his sovereign in a country where the sovereign has an embassador, is entitled to intervene for all subjects of that power interested. (Robson vs. The Huntress, 2 Wallace, jr., 59.)

A Consul may be authorized to communicate directly with the government near which he resides, but he does not thereby acquire the diplomatic privileges of a Minister. (7:342.)

Nor does he, as Consul, acquire such privileges by being appointed, as he may be at the same time Chargé d'Affaires. (Ibid.)

A Consul is not a public minister, nor entitled to the privileges attached to the person of such an officer. (1:41.)*

A Consul is not privileged from legal process by the general law of nations. ([1:77] Gittings vs. Crawford, Taney, 1.)

Attestation is not essential to the validity of the consular bond. (1:378; see R. S., sec. 1697.)

Foreign Consuls and Vice-Consuls are not public ministers within the law of nations or the acts of Congress, but are amenable to the civil jurisdiction of our courts. (1:406.) See 2 Dallas Rep., 297.

But Consuls are bound to appear only in the Federal courts, the Constitution and laws, contemplating the responsibility of Consuls, having provided these tribunals, in exclusion of the State courts, in which they shall answer. (Ibid.)

Under the act of 18th August, 1856 (11 Stat., 56; R. S., 1738), which provides that "no Consular Officer shall exercise diplomatic functions in any case unless expressly authorized by the President so to do," a retiring Minister can not install a Consul in charge of the legation, nor can the Consul

*Where figures alone are used (thus 1: 148) they refer to volume and page of Opinions of Attorneys-General of the United States.

receive the pay provided by law for a Chargé d'Affaires.

United States, 5 C. Cls., 430.)

(Otterbourg vs.

Consular jurisdiction depends on the general law of nations, existing treaties between the two governments affected by it, and upon the obligatory force and activity of the rule of reciprocity. (2:378.)

Consuls have no authority to order the sale of a ship in a foreign port, either on complaint of the crew or otherwise. (6:617.)

(Ibid.)

If, on such sale, a Consul retains money for the payment of seamen's wages, he acts at his own peril, and is responsible to the owners. The United States are not responsible in damages for moneys illegally received by Consuls, or for any other act of malfeasance of theirs in office. (Ibid.)

It is not a Consular function to authenticate the laws of a foreign state, and the certificate of a Consul to that effect is not evidence. (Church vs. Hubbart, 2 Cranch, 187 [237.])

A Consular certificate is not admissible to prove the correctness of a translation. (Ibid. [239].)

The funeral expenses or the deceased Consul, and the incidental and contingent expenses for the consulate after his death, are a fair item of charge on the fund for the contingent expenses of foreign intercourse, such Consul having been a diplomatic agent. (2:521.)

Foreign Consuls are entitled to no immunities beyond those enjoyed by foreigners coming in a private capacity to this country, except that of being sued and prosecuted exclusively in the Federal courts. Whenever a foreign Consul is guilty of illegal or improper conduct, he becomes liable to a revocation of his exequatur, and to be punished according to our laws, or he may be sent back to his own country, at the discretion of our Govern(2:725.)

ment.

The exterritoriality of foreign Consuls in Turkey and other Mohammedan countries is entirely independent of the fact of diplomatic representation, and is maintained by the difference of law and religion, being but incidental to the fact of the established exterritoriality of Christians in all countries not Christian. ([Ibid] 7:342.)

Consuls, as international commercial agents, originated in the colonial municipalities of the Latin Christians in the Levant, which municipalities were self-governing through their "Consuls," the ancient title of municipal magistrates in Italy. (Ibid.)

Rights of private exterritoriality having ceased to exist in Christendom, foreign Consuls have ceased, mostly, to be municipal magistrates of their countrymen there; but they still continue not only international agents but also administrative and judicial functionaries of their countrymen in countries outside of Christendom. ([Ibid] 7:342.)

Authority and duties of Consuls.

A Consul of the United States, under the act of 1803 (2 Stat., 203; R. S., 4309), has no authority, by withholding a ship's papers, to compel payment of demands of creditors against the vessel. (9, 384.)

A Consul, under section 28 of the act of 1856 (11 Stat., 63; R. S., 1718), has authority to detain the papers of a ship to enforce only the payment of wages in certain cases and consular fees; but he has not a general power of deciding upon all manner of disputed claims against American vessels. (Ibid.)

A Consul may recover the penalties incurred by the master of a vessel for neglecting to deposit his papers, in a court of competent jurisdiction, but he has no right to enforce otherwise the payment of the penalties. (Ibid.)

No law or regulation requires an American Consul to certify to the official character and acts of a foreign notary public. The Consuls of the United States are authorized by section 24 of the act of 1856 (11 Stat., 61; R. S., 1750), to perform any notarial act; but a certificate as to the official character of a foreign notary is not a notarial act; and, if it were such, the duty would not be imperative. (12, 1.) (When the act of the foreign notary is in connection with official business, the consul must certify to his official competency to act.)

A Consular Agent is the representative of the Consul to whom he is subordinate. (Rev. Stat., 4309; Gould vs. Staples, 9 Fed. Rep., 159.)

Consular Courts.

Existence and extent of jurisdiction depends on treaty stipulation and positive law. (Dainese vs. Hale, 91 U. S., 13.)

Vice-Consuls are competent to hold Consular Courts in China, when duly appointed or approved as such by the Secretary of State. (See act of February 1, 1876, amending R. S., 4130.) (7:495.)

In virtue of the treaty between the United States and China, all citizens of the United States in China enjoy complete rights of exterritoriality, and are amenable to no authority but that of the United States. (Ibid.)

The several Consuls, each in his consular circumscription, have, by express provision of statute, original jurisdiction in all civil cases of contract, or the like sounding in damages, which arise between two or more citizens of the United States, and in crimes committed by an American. (Ibid.) In such civil matters of contract, or the like sounding in damages, the Consul sits with or without assessors, according to circumstances; and in case of difference of opinion between him and his assessors, an appeal lies to the commissioner. (Ibid.)

In all criminal matters, except certain petty misdemeanors, the Consul sits with assessors, and decides subject to appeal as in civil cases to the commissioner; save that in capital cases there is no appeal, but the conviction is invalid unless approved by the commissioner. (Ibid.)

In controversies between citizens of the United States and subjects of China, the case is to be tried by the court of the defendant's nation; and so in controversies between citizens of the United States and those of any friendly foreign government. (Ibid.)

The Consular Court has no authority by the treaty or the statute to entertain jurisdiction of a suit by the Chinese government for duties. (Ibid.) In all criminal matters, and in all civil matters of contract, or the like