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The action of a foreign consul, in assuming to decide the question of the guilt or innocence of one of his countrymen who was charged with being a fugitive from justice, and in extorting from him the alleged proceeds of his criminality by groundless threats of criminal prosecutions, is a ground for invoking the consul's exequatur.

Mr. Frelinghuysen, Sec. of State, to Mr. de Bille, Danish min., April 2

and April 14, 1883, MS. Notes to Denmark, VII. 141, 143.

Braida's case.

“ I have to acknowledge the receipt of your dispatch dated May

28 last, in which you recite a conversation had by you

on the 21st of May with the President of Nicaragua relative to the restoration of Mr. Sigmund C. Braida to his office as consul of the United States at San Juan del Norte, in the conduct of which he was suspended some weeks ago in consequence of the withdrawal of his exequatur by the Nicaraguan government.

“ The President informed you that he had temporarily restored Mr. Braida’s exequatur; but you replied that at the time of Mr. Braida's • removal from office’you had ' appointed’ Dr. Henry De Soto consul in his stead, that the Nicaraguan government had recognized Dr. De Soto as such consul, and that Mr. Braida could not be restored to the office without first procuring Dr. De Soto's resignation, which step you did not regard as advisable until and unless Mr. Braida's permanent restoration should be assented to.

The withdrawal of Mr. Braida's exequatur did not operate as a removal from office, but only as a suspension of his authority to perform the duties thereof. No vacancy was thereby created which required filling by the appointment of another person; and, furthermore, a minister has no authority to appoint a consul. The President of the United States alone is authorized to appoint a consul, and then by and with the advice and consent of the Senate. Your authority extended only to the temporary installation of an unofficial person to preserve the consular archives and to perform such duties as in the emergency he might lawfully undertake without authorization according to law. Your action in designating Dr. De Soto to act in Mr. Braida's stead, and in obtaining local permission for him so to act, was in legal effect nothing more than appointment of a custodian of the consulate and archives during the suspension of the regularly appointed officer. The restoration of Mr. Braida's exequatur, therefore, whether temporary or permanent, would operate as a rehabilitation of his suspended authority to perform consular functions and qualify him to supersede Mr. De Soto in the custody of the office, without the formality of a resignation or other express determination of Mr. De Soto's connection therewith.

" You are therefore instructed to assent to the President's offer to restore Mr. Braida's exequatur, and to permit him to resume charge of the office."

Mr. Uhl, Acting Sec. of State, to Mr. Baker, min. to Nicaragua, June 14,

1894, For. Rel. 1894, 479. Señor Madriz, Nicaraguan minister of foreign affairs, admitted to Mr.

Baker that Señor Lacayo, the Nicaraguan commissioner to the Mosquito Reserve, had inconsiderately recommended the withdrawal of Mr. Braida's exequatur, on suspicion that he had used his influence to prevent the abdication of the Mosquito Government. (For, Rel.

1894, App. I. 288.) See, also, For. Rel. 1894, App. I. 298, 300 et seq. As to the withdrawal and restoration of the exequatur of Mr. Bingham,

British consul at San Juan del Norte, see id. 297.

July 29, 1897, the minister of foreign affairs of Gửatemala informed the legation of the United States that the President of the Repubilc had on the preceding day ordered the withdrawal of the exequatur of Mr. Florentin Souza, United States consular agent at Champerico. The legation, being entirely without previous advices on the subject, asked to be acquainted with the reason for the government's action, but stated that another person would be placed in charge of the consular agency for the present. Mr. Souza disclaimed any knowledge as to the cause of the government's action. The course of the legation was approved; but with reference to its request for the reasons for the withdrawal of the exequatur, the Department of State said: “You were not strictly in your right in making this request. As a general rule of international intercourse, a government can withdraw a consular exequatur without assigning any reason. If it voluntarily assigns cause for removal, it invites discussion of the sufficiency thereof, and defensive evidence can be offered with a request for reconsideration. If it offers no reasons, it can not be compelled to give them. Your inquiry, therefore, should be treated as a request for information rather than as a demand for proof of good cause, ard it is hoped the Guatemalan government will so construe it.”

Mr. Sherman, Sec. of State, to Mr. Pringle, chargé, Aug. 18, 1897, For.

Rel. 1897, 338.

A request having been made that the government of the United States revoke the exequatur of the Italian consul-general at New York, because of his refusal to certify to the official character of a notary public, the Department of State said: “ In view of the fact that it has been held by the Attorney-General of the United States that an American consul is not required to certify to the official character and acts of a foreign notary public, the Department is unable to comply with your request to have the Italian consulgeneral removed for refusing to legalize your signature.'

Mr. Hill, Assist. Sec. of State, to Mr. Canale, July 19, 1899, 238 MS. Dom.

Let. 536.

exe

“Refusals to grant the exequatur are not uncommon.

An English consul was refused by Russia, in the Caucasus, beRefusal of

cause it was alleged that he was hostile to the Russian quatur,

government, and had expressed strong opinions about Russian movements in Asia. In our own history, without going further back, a consul recently appointed to Beirut was rejected by Turkey, because he was a clergyman and might be too much connected with the missionaries; another was rejected by Austria on account of his political opinions, he having previously been an Austrian subject.”

Schuyler's Am. Diplomacy, 96.

The action of the Spanish government in refusing exequaturs to consuls is final.

Mr. Forsyth, Sec. of State, to Mr. Eaton, Oct. 12, 1839, MS. Inst. Spain,

XIV. 99.
See, as to the refusal or revocation of exequaturs, Hall, Int. Law, 5th ed.

319–320.

“ The right of the Nicaraguan government to refuse an exequatur to Mr. Priest [who had been appointed United States consul at San Juan del Sur) can not be denied. If, as is intimated, the only cause assigned for their hesitation was the publication of a private letter of that gentleman which was deemed objectionable, he may regret this as a misfortune, but, if he shall not ultimately receive the exequatur, we could not consider it as an injury of which it would be advisable to complain.”

Mr. Marcy, Sec. of State, to Mr. Wheeler, min. to Nicaragua, May 11, 1855,

MS. Inst Am. States, XV. 236.
The publication of articles written by a consul derogatory to the govern-

ment by which he is recognized, though he requested that the articles
be not published over his signature, justifies a demand for his recall.
“ His complaint lies against the paper for having sacrificed him; not
against that government for having exercised its right in view of
the publications in question." (Mr. Hay, Sec. of State, to Mr.
Hawley, U. S. S., Aug. 3, 1900, 246 MS. Dom. Let. 670.)

.

“ The exercise of the undoubted right of withholding an exequatur is

an extreme one. In this country it is rarely resorted to.” Mr. Blaine, Sec. of State, to Mr. Morgan, May 31, 1881, MS. Inst. Mex.

XX. 267.
See, also, same to same, June 29, 1881, id. 318.

The refusal of an exequatur by a foreign government, when not involving an invasion of the prerogatives of the United States under the law of nations, will not be excepted to.

Mr. Bayard, Sec. of State, to Mr. Cox, Apr. 29, 1886, MS. Inst. Turkey,

IV. 430.
See same to same, Mar. 24, 1886, id. 420.

The Brazilian government in 1894 declined to issue an exequatur to Reuben Cleary, as deputy consul-general of the United States at Rio de Janeiro, on the ground that the granting of the exequatur would import that the office of deputy consul-general was entitled to the prerogatives, privileges, and immunities of that of consulgeneral, to which it was merely auxiliary. At the same time the Brazilian government informally recognized Mr. Cleary's power to act. The Department of State replied that as the Brazilian government had recognized the appointment of Mr. Cleary as deputy consulgeneral, a formal exequatur was not necessary. It seems that the legation had been instructed merely to ask for Mr. Cleary's recognition in his official capacity.

Mr. Gresham, Sec. of State, to Mr. Thompson, min. to Brazil, Sept. 27,

1894, For. Rel. 1894, 83-85.

Conviction of a person by a United States military commission at Manila of publishing seditious newspaper articles in violation of the Articles of War will preclude the recognition of such person as the consular agent of a foreign power at that place.

Mr. Adee, Second Assist. Sec. of State, to Mr. Sickles, Dec. 26, 1899, MS.

Inst. Spain, XXII. 658.

IV. DISMISSAL OR RECALL.

$ 701.

For cognate cases, see the preceding section.

The stipulation in a consular convention that consuls shall be received on both sides“ could not mean to supersede reasonable objections to particular persons who might at the moment be obnoxious to the nation to which he was sent, or whose conduct might render him so at any time after. In fact, every foreign agent depends on the double will of the two governments, of that which sends him and of that which is to permit the exercise of his functions within their territory; and when either of these wills is refused or withdrawn, his authority to act within that territory becomes incomplete.”

Mr. Jefferson, Sec. of State, to the minister plenipo. of France, Dec. 9,

1793, 5 MS. Dom. Let. 390; 4 Jefferson's Works, 90.

The executive directory of the French Republic alleged that Mr. Parish,

United States consul at Hamburg, gave passports to Englishmen
under the title of Anglo-Americans, for the purpose of introducing
into the French territory emissaries of the British court, and on this
ground asked that he might be recalled. The government of the
United States discredited the charge, but the President, being desir-
ous “of maintaining a course of action as impartial as his prin-
ciples," and having for some time had it in contemplation to appoint
an American citizen as consul at Hamburg, caused the French gov-
ernment to be informed that a change would be made as soon as a
proper person could be found to succeed Mr. Parish, who was not
a citizen of the United States. (Mr. Pickering, Sec. of State, to

Mr. Adet, June 2, 1796, 9 MS. Dom. Let. 145.)
As to the case of the acting Chinese consul at Manila, in 1898, see Mr.

Hay, Sec. of State, to Sec. of War, Dec. 29, 1898, 233 MS. Dom.
Let. 476.

The participation, by a consul of the United States in China, in the opium trade, after notice forbidding such participation, is ground for his dismissal.

Mr. Legaré, Sec. of State, to Mr. Cushing, June 12, 1843, MS. Inst. China,

I. 19.

The President, after commissioning a consul to whom the government to which the consul is sent objects, “ will not revoke the commission unless he should be satisfied that the reasons for not receiving him were well founded and of a character to justify [that] government in refusing an exequatur."

Mr. Marcy, Sec. of State, to Mr. Daniel, Nov. 7, 1853, MS. Inst. Italy, I. 76.
As to refusal of exequatur on grounds personal to consul, see Mr. Seward,

Sec. of State, to Mr. Kirk, Apr. 27, 1864, MS. Inst. Argentine Rep.
XV. 193.

It appearing that the Spanish consul at New York was in the habit of viséing passports which had already been used abroad, or which had been issued more than a year previously, after he was informed that the laws and regulations of the United States required passports to be renewed at or before the expiration of a year, for which renewal a tax of five dollars was collected, the Department of State, observing that a consul who persisted in such conduct after being requested to discontinue it manifested an unfriendly feeling and forfeited his claim to be recognized in an official capacity, asked that the consul in question be recalled and another sent in his place.

Mr. Fish, Sec. of State, to Señor Lopez Roberts, Spanish min., April 29,

1870, MS. Notes to Spanish Leg. VIII. 384.

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