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be found to serve at a particular place, aliens may be selected, giving the preference to citizens or subjects of other nationalities than that of the country where the officer is to serve.
When, however, no such person can be found, a subject of the country may be appointed if not contrary to law or treaty. If any other country has a consular officer in Tripoli who is a Turkish subject the United States may claim the same privilege under their treaty. In the case of a consular agent, however, it would be advisable previously to name to the local authorities the person proposed to be appointed, if they should not object.”
Mr. Hunter, Second Asst. Sec. of State, to Mr. Vidal, Aug. 11, 1873, MS.
Inst. Barb. Powers, XV. 561.
The experience of the government has demonstrated the inconvenience and often serious embarrassment resulting from the appointment of naturalized citizens to consulates within the country of their nativity, while with regard to appointments in other countries they stand on the same footing as all other citizens."
Mr. Fish, Sec. of State, to Mr. Glover, Apr. 7, 1876, 112 MS. Dom. Let.
586. As to the impolicy of appointing naturalized citizens as consuls to the
country of their origin, see Schuyler's Am. Diplomacy, 79.
By section 21 of the act of Aug. 18, 1856, diplomatic officers and principal consular officers were required to be citizens of the United States. (11 Stat. 60.) By the act of Feb. 28, 1867, payment of compensation to principal consular officers who were not citizens was forbidden. (14 Stat. 412; 12 Op. At. Gen. 124.) The act of June 11, 1874, provided for the payment of salaries to certain consular officers not citizens. (18 Stat. 66.) The Revised Statutes, which became law June 20, 1874, do not contain that part of the act of 1867 prohibiting payment to consuls not citizens (see $ 1690), and $ 1744 incorporates only that part of sec. 21 of the act of 1856 which requires diplomatic officers to be citizens. It therefore does not seem to be contrary to law to commission as a consul one who is not a citizen of the United States. (R. S. 88 5595, 5596.) Nevertheless, it is the general practice to commission only citizens; but there are occasions when by reason of inadequate salary or the lack of any at all it is not possible to appoint citizens. It often happens that an alien is appointed vice-consul, or consular agent, though even in these cases preference is invariably given to citizens where one can be found for “No person who is not an American citizen shall be appointed hereafter in any consulate-general or consulate to any clerical position the salary of which is one thousand dollars a year or more.”
Mr. Adee, Act. Sec. of State, to Mr. Winchester, Aug. 13, 1895, 204 MS.
Dom. Let. 82.
Act of April 5, 1906, section 5.
With reference to objections suggested by the Chinese government to the appointment by the United States as consuls at treaty ports of persons engaged in trade, Mr. Seward observed that it was obvious that it would be preferable in many cases to have consuls who should receive adequate salaries from the Government; but that the extended condition of modern commerce rendered it impossible for any government exclusively to adhere to that system; that, consequently, every maritime power employed merchants as consuls, and that the practice was often sanctioned by treaties and was recognized by the law of nations.
Mr. Seward, Sec. of State, to Mr. Burlingame, min. to China, No. 25,
Feb. 4, 1863, Dip. Cor. 1863, II. 818.
reply, see id. 829, 812.
Mr. Upshur, Sec. of State, to Mr. Huntington, U. S. S., Jan. 20, 1844, 33 MS. Dom. Let. 462. See, also, infra, $ 710.
1. NATURE AND EFFECT.
The question of the right of a consular officer, principal or subordinate, to exercise consular privileges at a particular place depends upon the scope of his exequatur.
Mr. Fish, Sec. of State, to Mr. Stevens, June 23, 1873, MS. Inst. Paraguay,
I. 163; Mr. Porter, Act. Sec. of State, to Mr. Cox, min. to Turkey,
No. 4, Aug. 10, 1885, MS. Inst. Turkey, IV. 256.
It appearing by a publication in a newspaper in Venezuela, over the signature of the Venezuelan consul and vice-consul at New York, that they claimed to be sole agents in that city for emigration to Venezuela, the matter was called to the attention of the Venezuelan minister at Washington, with the statement that, as the exercise of the functions of emigration agents was not sanctioned by the exequaturs of the officers in question, it was preferred that they should abstain from acting in that capacity.
Mr. Fish, Sec. of State, to Señor Dalla Costa, Aug. 22, 1874, MS. Notes
to Venezuela, I. 154.
“ Consuls are indeed received by the government from acknowledged sovereign powers with whom they have no treaty. But the exequatur for a consul-general can obviously not be granted without recognizing the authority from whom his appointment proceeds as sovereign. •The consul,' says Vattel (book 2, chap. 2, § 34), “is not a public minister; but as he is charged with a commission from his sovereign, and received in that quality by them where he resides, he should enjoy, to a certain extent, the protection of the law of nations."
Mr. Adams, Sec. of State, to the President, Jan. 28, 1819, MS. Report
The act of soliciting and receiving from the government of a certain country an exequatur for a consular officer at a particular place, is not a conclusive recognition of such country's sovereignty over the place in question. The request for an exequatur concerns merely the performance of certain duties by. a United States officer toward the vessels and citizens of the United States, with the permission of the authority in actual possession, and can not be assumed to imply the expression of any opinion as to the right of possession or to operate in confirmation of a claim of right. Such was the position of the United States in obtaining exequaturs from Nicaragua for a consul at Corn Island; from the Hovas government for a consul at Madagascar, and from Great Britain for a consul at Belize.
Mr. Rives, Act. Sec. of State, to Mr. Hall, min. to Central America, No. 638,
Nov. 12, 1888, MS. Inst. Cent. Am. XIX. 173. “A commercial agent is a consular officer appointed by the Secretary of
State to reside at ports where for political reasons it may not be expedient formally to recognize the authority of the government claiming jurisdiction, or where that government may not think proper to recognize a consul. The former consideration probably led to the original appointment of a commercial agent at Belize. Though those reasons for continuing that title to the consular officer there may not now have the same force which may at arst have been assigned to them, they may be supposed to be still operative to a degree which may make it inexpedient to change the title, at least for the present." (Mr. Fish, Sec. of State, to Mr. Frye, M. C., Jan. 7, 1876, 111 MS. Dom. Let. 320.)
A commission was issued to Mr. Priest at San Juan del Sur, Nicaragua, as United States consul. He hoisted his consular flag, but, owing to a personal objection, the Nicaraguan authorities withheld his exequatur. While matters were in this situation his house was entered by a military force and he was arrested and imprisoned. Held, that as he had not been recognized as consul the trespass could not be complained of as an international offense against a public functionary. It was added that the propriety of having his consular flag hoisted, before he had received his exequatur, might be questioned.
Mr. Marcy, Sec. of State, to Mr. Wheeler, min. to Nicaragua, May 11,
1855, MS. Inst. Am. States, XV. 236.
The insertion of conditions in an exequatur is unusual, and when applied to United States consuls abroad will be excepted to by the United States.
Mr. Fish, Sec. of State, to Mr. Sickles, Apr. 16, 1870, MS. Inst. Spain,
Although it was believed not to have been customary to request formal authority for vice-consuls, consular agents, or even commercial agents, to exercise their functions, yet, as the Mexican government seemed to expect that its sanction of the exercise by such officers of their authority there would be requested, it was stated that copies of their commissions would be forwarded to the legation of the United States at Mexico in order that such sanction might be applied for.
Mr. J. C. B. Davis, Act. Sec. of State, to Mr. Foster, min. to Mexico, No.
24, Aug. 30, 1873, MS. Inst. Mexico, XIX. 22.
As it has been deemed inexpedient to issue exequaturs in the form of an official paper signed by the President and bearing the great seal of the United States, except to consular officers bearing a regular commission signed by the chief executive of the appointing state and bearing its great seal, it has been deemed proper to issue a less formal exequatur, in the form of a certificate of recognition signed by the Secretary of State and bearing the seal of the Department of State, to subordinate officers appointed by foreign consuls-general or consuls in the United States under their own signature and seal of office. This course is understood to be in accordance with the practice touching subordinate consular officers of the United States in foreign countries.
Mr. Evarts, Sec. of State, to Mr. Sherman, Sec. of Treas., Dec. 12, 1879,
131 MS. Dom. Let. 13. As to the difficulties encountered in securing the recognition of the
United States consul at Galatz and the United States commercial agent at Bucharest, Roumania, see Mr. Evarts, Sec. of State, to Mr.
Kasson, No. 122, July 30, 1879, MS. Inst. Austria-Hungary, III. 48. As to the recognition of the vice and deputy consul-general at Cairo,
Egypt, see Mr. Sherman, Sec. of State, to Mr. Terrell, No. 1448,
May 18, 1897, MS. Inst. Turkey, VII, 107. As to the refusal of Turkey to grant exequaturs to United States consuls
at Erzerum and Harpoot, see Mr. Day, Sec. of State, to Mr. Straus, min. to Turkey, Sept. 13, 1898, MS. Inst. Turkey, VII. 274.
“ After more than two years from the appointment of a consul of this
country to Erzerum, he has received his exequatur." (President
McKinley, annual message, Dec. 5, 1898, For. Rel. 1898, lxxxiii.)
a Turkish subject, as United States consular agent at that place, or
Exequaturs do not issue to consular agents or vice-consuls.“ Orders of this government to the Federal officers of the district where the appointee's functions are exercised are deemed sufficient recognition."
Mr. Evarts, Sec. of State, to Mr. Shishkin, Russian min., Nov. 14, 1879,
MS. Notes to Russian Leg. VII. 290.
“ Your explanations concerning the functions of pro-consuls seem to show that it is not customary to submit their commissions or to ask for their recognition. Unless Her Majesty's government should be pleased to adopt a different course in this regard hereafter, the proconsuls you mention will continue to be omitted from the list of regularly recognized consular officers."
Mr. Blaine, Sec. of State, to Sir Edward Thornton, British min., May 27,
1881, MS. Notes to Great Britain, XVIII. 519.
2. CONDITIONS OF ISSUANCE.
September 8, 1793, the British minister requested an exequatur for the British consul for North Carolina, South Carolina, and Georgia, on the strength of a copy of the consul's commission. Mr. Jefferson replied that it appeared to be “ so material in law” that the grant of the exequatur should be " founded on an inspection of the original” commission, that the President had granted permission to the consul to exercise his functions provisionally, without the formality of an exequatur, till there should have been" full time to produce the original of his commission to be exhibited to the President."
Mr. Jefferson, Sec. of State, to the minister plenipo. of Great Britain,
Sept. 10, 1793, 5 MS. Dom. Let. 265.
memorandum on “ Consular Exequaturs," June 8, 1864, 36 MS. Desp.
“ Before an exequatur can be granted by the President, recognizing a consul or vice-consul of any nation as entitled to exercise his official functions in this country, evidence should be laid before him that such officer is duly appointed, which could only be done, consistently with the views just expressed, by producing a commission, either directly from his government or else from the authorized agent; in which latter case it should be accompanied by the instru