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not conflicting with their consular duties; but in such cases they act as the private agents of their employers and not as representatives of the Department of State; their services are personal and not offi- . cial, and they are entitled to proper compensation, which is a matter of private arrangement.
Mr. Cadwalader, Assist. Sec. of State, to Mr. Davis, March 11, 1875, 107
MS. Dom. Let. 151; Mr. F. W. Seward, Assist. Sec. of State, to Mr. Schoenberger, Dec. 2, 1878, 125 id. 438; Mr. Evarts, Sec. of State, to Mr. Downey, July 12, 1879, 129 id. 62; Mr. Hunter, Second Assist.
Sec. of State, to Mr. Diller, April 28, 1881, 137 MS. Dom. Let. 262. " It is entirely a matter of their own volition, and not only is it proper
that ail expenses to which they may be put should be provided for, but this Department has moreover allowed them to charge a reasonable fee for their own services." If payment of such expenses is refused, the Department will direct the attention of the delinquent parties to be called to such refusal. (Mr. Evarts, Sec. of State, to
clerk of Peoria court, May 15, 1880, 133 MS. Dom. Let. 48.) “ It is no part of the duty of diplomatic or consular officers to attend to
the prosecution of private claims of American citizens in foreign countries, especially when the courts of justice are open to them." (Mr. Evarts, Sec. of State, to Mr. Yoder, May 24, 1880, 133 MS. Dom. Let. 146.)
“ United States consuls in foreign countries, and especially in the East (China and Japan), are allowed and instructed to act for citizens of the United States in regard to their private matters, and to give them advice as to the settlement of controversies between themselves or between them and the citizens or subjects of any other government residing in the country of the consul's official residence, when called upon to do so by such American citizens, and when a consular officer can do this without prejudice to the due discharge of his official duties. The paragraphs of the regulations to which you refer are simply intended to impress upon the consul more earnestly his obligations to his countrymen in this regard.”
Mr. Davis, Asst. Sec. of State, to Mr. Weiller, Feb. 20, 1884, 150 MS.
Dom. Let. 67.
“In reply to the suggestion contained in yours of the 13th instant, that instructions be made to consuls regarding inquiries on the financial standing of foreign individuals and firms, I would say that such a matter does not come within the proper functions of the Department. While endeavoring to meet all demands made upon it in the interest of manufacturers and merchants of the United States, it could not undertake to give the information you ask for, nor could it impose such a task upon consuls without injury to the public service. To pass upon the solvency of a firm or an individual is, under any circumstances, a matter of great difficulty, involving many delicate considerations, which it is impossible for a consul, having so
many other duties incident to his office, to duly weigh and so to arrive at a conclusion that will be just to the person making the inquiry as to the firm or individual in question."
Mr. Porter, Acting Sec. of State, to Messrs. Stearns & Co., Jan. 19, 1886,
158 MS. Dom. Let. 492.
8. APSTENTION FROM POLITICS.
Interference by a consul of the United States in the political affairs of the country of his residence will be a sufficient ground for his recall.
Mr. Forsyth, Sec. of State, to Mr. Hunter, Nov. 16, 1836, MS. Inst. Bra
zil, XV. 32.
When the British forces attacked Canton in 1856, the American flag was displayed in the fight in the city. According to one report, it was borne by the American consul at Hongkong, who had left his post and accompanied the British forces. The American commissioner to China was directed to ascertain whether the consul had been guilty of " such a rash and ill-advised step.” A letter was also enclosed to the commissioner, removing the consul from office in case it should be found “ that he bore the American flag upon the walls or within the city of Canton, at the time the British made their attack upon it, or that he had any agency in displaying our flag on that occasion," or if it should be found that he was “then at Canton, and took a part in the military operations upon or in the city."
Mr. Marcy, Sec. of State, to Mr. Parker, commissioner to China, No. 9,
Feb. 2, 1857, S. Ex. Doc. 30, 36 Cong. 1 sess. 3-5.
“It is a standing instruction to United States consuls abroad to abstain from interference in the political affairs of the countries where they reside.”
Mr. Cass, Sec. of State, to Mr. Bertinatti, Italian min., Nov. 16, 1859, MS.
Notes to Italy, VI. 207.
One Tobiaz, a reactionary chief in Mexico, having exacted a fine from Mr. Blake, who was acting as a consular agent under Mr. Hantus, United States consul at Manzanillo, Mexico, Mr. Hantus arranged a meeting with Tobiaz and entered into an understanding with him that Mr. Blake should be accredited to his, " Tobiaz's, dominions, as an exequatur from President Juarez he should never recognize in his territories." Mr. Hantus, in reporting his action, stated that this arrangement, which was “flattering to the vanity" of Tobiaz, he considered very “cheap” and “willingly accepted,” and
that, so far, it had seemed “to work well.” The Department of State received the report with “ great surprise," and, in order to mark the President's “ displeasure” with the consul's “extraordinary course” in “entering into an arrangement with a rebel chief so inconsistent with a proper respect for the constitutional authorities of Mexico," by whom the consul had been “ officially recognized," revoked the consul's commission.
Mr. F. W. Seward, Assist. Sec. of State, to Mr. Hantus, “late United
States consul," June 18, 1863, 33 MS. Desp. to Consuls, 167.
The consul of the United States at Rome, by appearing in the field with the Pontifical army; by remaining while the army was under fire, and assisting a wounded combatant; by getting slightly wounded himself; and by taking up a musket in self-defense and driving away an assailant, “ did indeed become ' mixed up' in the affair, and not as an idle spectator but in the precise character of a belligerent.' For these reasons his conduct was “ entirely disapproved," and it was left to depend upon his “ better conduct hereafter," and to a 'certain extent on circumstances “not yet fully understood,” whether the Department of State would be content “ to leave the case with this reprimand.”
Mr. Seward, Sec. of State, to Mr. Cushman, consul at Rome, No. 27, Jan.
21, 1868, 46 MS. Desp. to Consuls, 516.
VIII. SHIPPING AND SEAMEN.
1. CONSULAR POWERS.
Exclusive jurisdiction over disputes between masters, officers, and crews of the vessels of their respective countries is conferred on consuls by various treaties between the United States and other powers.
The right to reclaim deserting seamen also is often so conferred.
By other treaties consuls are empowered to adjust damages suffered at sea and in matters of wreck and salvage.
Consular Regulations of the United States (1896), 88 88, 89, 90, p. 34–35.
The right given to seamen by Revised Statutes, section 4567, to lay their complaints before the American consul in foreign ports, is one which a court of admiralty will carefully protect.
Morris v. Cornell, 1 Sprague, 62.
The advice of a consul in a foreign port gives to the master of a vessel no justification for an illegal act.
Wilson v. The Mary, Gilpin, 31.
Consuls have no authority to order the sale of a ship in a foreign port, either on complaint of the crew or otherwise. If, on such sale, the consul retain the money for the payment of seamen's wages, the United States are not liable to the owners for the money thus illegally received by the consul.
Cushing, At. Gen., 1854, 6 Op. 617.
Under the 28th section of the act of August 18, 1856, consuls have the authority to enforce the payment of wages in certain cases and consular fees, but not a general power of deciding upon all manner of disputed claims and demands against United States vessels. By the act of 1803 the consul is made the party to bring suit for penalties incurred under it, but not the judge to decide it. He cannot demand the penalty, decree it to be due, and enforce its payment by detaining the ship's papers.
Black, At. Gen., 1859, 9 Op. 384.
Article VIII. of the consular convention with France of Feb. 23, 1853, provides that “ the local authorities shall not, on any pretext, interfere ” in differences between masters and crews of vessels of the contracting parties, but that such persons “ shall be arrested at the sole request of the consuls, addressed in writing to the local authority," etc. By the act of June 11, 1867, 13 Stat. 121, R. S. S S 4079-1081, for the execution of treaties relating to the jurisdiction of consuls over seamen, it is provided that the application for arrest may be made“ to any court of record of the United States, or any judge thereof, or to any commissioner appointed under the laws of the United States," and that the warrant of arrest shall be directed to the United States marshal. Under these provisions an application to the local chief of police is irregular and an arrest made by such chief of police is unauthorized. But where a seaman so arrested is brought before a United States district court on habeas corpus, it is the duty of the court to examine the case and commit the defendant to prison if he comes within the terms of the treaty, and the formal irregularity in the arrest is obviated by the examination.
Dallemagne v. Moisan (1905), 197 U. S. 169.
Neither Art. VIII. of the consular convention with France of Feb. 23, 1853, nor the act of June 11, 1864, 13 Stat. 121, R. S. SS 10794081, limits the time during which an arrested seaman may be held in custody to the stay of his ship in port. The statute limits the time to two months and the seaman, when properly in custody, may be held during that time, whether the ship departs or not.
Dallemagne 1. Moisan (1905), 197 L. S. 169.
No consul, pursuant to our law or regulations, has the right to grant a clearance to any American vessel, even if his post is at a port conquered and possessed by the enemy of the country from whose government he may have received his exequatur. It is the exclusive province of the belligerent authority for the time being-civil, military, or naval-to grant such clearances, and the consul, as is required in time of peace, should not deliver the vessel's papers until the clearance shall have been presented to him by the master. The consul's course is not to be governed or influenced by the components of the cargo of the vessel. If these, according to the existing authority, may lawfully be exported, the consul can not properly gainsay that opinion.”
Mr. Evarts, Sec. of State, to Mr. Christiancy, min. to Peru, Mar. 2, 1880,
message of Jan. 26 and 27, 1882, relating to the War in South America and Attempts to bring about a Peace, p. 331. This instruction is recorded in MS. Inst. Peru, XVI. 437.
“ You are instructed to make a courteous application to the government of Venezuela to permit by some general regulation the consuls of the United States to visit vessels of their nationality in their official capacity without a special permit from the local authorities."
Mr. Bayard, Sec. of State, to Mr. Scott, min. to Venezuela, No. 156, March
22, 1888, For. Rel. 1888, II. 1640–1641.
Under the act of February 28, 1803, $ 2, the master of an American vessel which touches at a foreign port to obtain advices, but does not enter nor do any business there, is not bound to deposit the register with the consul of the United States; such presence in port is not an "arrival" within the meaning of that act.
Harrison v. Vose, 9 Howard, 372; Mason, At. Gen., 1845, 4 Op. 390;
Johnson, At. Gen., 1849, 5 Op. 161; Cushing, At. Gen., 1853, 6 Op. 163;
Masters of American vessels are subject to prosecution in the name of the consul for omission to deposit with him the papers according to law, but not to indictment. (2 Stat. 203, & 2; Rev. Stat. § 4309.)
Cushing, At. Gen., 1855, 7 Op. 395.
The master of an American vessel sailing to or between ports in the British North American provinces is required, on arriving at any such port, to deposit his ship's papers with the American consul.
Bates, At. Gen., 1866, 11 Op. 72.
Section 1720, Revised Statutes, does not change or affect the duties of masters of American vessels running regularly by weekly or