Obrázky stránek
PDF
ePub

6

"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
Book.

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 first 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

[ocr errors]

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,
XVI. 98.

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.)
The mutessarif of Samsoun, Turkey, refused to recognize Mr. Arzoglou,
a Turkish subject, as United States consular agent at that place, or
to allow him to display the American flag. (For. Rel. 1893, 623.)

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.

§ 699.

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.

66

For the various forms of exequaturs issued by the United States, see a memorandum on Consular Exequaturs," June 8, 1864, 36 MS. Desp. to Consuls, 513.

"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

ment investing such agent with the necessary authority. This power of appointment is frequently conferred upon consuls-general, with or without limitation or modification, but is not necessarily or uniformly attached to their office."

Mr. McLane, Sec. of State, to Mr. Lederer, Austrian consul-general, Feb. 28, 1834, MS. Notes to For. Legs. V. 168.

See, to the same effect, Mr. Marcy, Sec. of State, to Mr. Horner, Dec. 29, 1853, MS. Notes to Arg. Rep. XI. 35; Mr. Fish, Sec. of State, to Mr. Garcia, Jan. 23, 1872, id. 100.

"In all cases of application for an exequatur for or in behalf of a foreign consul, a commission emanating either from the head of his government or from a functionary known to possess the power of appointing consular officers, should be submitted to the President and recorded in the Department of State." Meanwhile, provisional permission for the exercise of consular functions may be given, and information of the fact duly furnished to the collector of customs at the proper port.

Mr. Forsyth, Sec. of State, to Baron de Mareschal, Austrian min., March 21, 1839, MS. Notes to German States, VI. 51.

"I have the honor to acknowledge the receipt of your note of the 9th instant, informing me that your government has authorized its legation here to confer diplomas of appointment, in a certain prescribed form to consuls and vice-consuls, the object of which is to enable such officers to act provisionally, which commissions are to serve in lieu of the imperial commissions granted to such officers when definitively appointed. The President has accordingly directed me to transmit to you his act recognizing Mr. Daniel J. Dasmond as provisional vice-consul of Austria, for Philadelphia, with which I have the honor to return the diploma which accompanied your note." (Mr. Webster, Sec. of State, to Mr. Hülsemann, Austrian chargé d'affaires, Aug. 18, 1842, MS. Notes to German States, VI. 73.)

As to the power of Russian consuls "missi," under the Russian consular regulations, to appoint subordinate officers, see Mr. Evarts, Sec. of State, to Mr. Shishkin, Russian min., Nov. 14 and 29, 1879, MS. Notes to Russ. Leg. VII. 290, 292. Mr. Evarts, in the note of Nov. 19, refers to the similar powers of Italian and Portuguese consuls.

Consular agents are appointed by consuls as deputies at places within their respective consular districts. They correspond with and make returns to the consuls by whom they are appointed; and, although it is in some cases expressly provided by treaty that they shall be permitted to reside in the ports for which they are designated, exequaturs for that purpose are never applied for or expected

66

There is no instance in which this government has granted an exequatur to any officer below the grade of vice-consul."

Mr. Forsyth, Sec. of State, to His Highness Prince Metternich, Dec. 26,
1834, MS. Notes to German States, VI. 3.

See, to the same effect, Mr. Forsyth, Sec. of State, to Sir C. R. Vaughan,
British min., April 24, 1835, MS. Notes to Brit. Leg. VI. 14.

See, also, Mr. Forsyth, Sec. of State, to Baron Lederer, Austrian consulgeneral, Feb. 3, 1838, id. 38, stating that, while an exequatur could not be issued to a person appointed by Baron Lederer to act as "agent" at New York in his absence on leave, yet, if he would appoint him as "acting consul-general, or consul," an exequatur would be issued to him in that capacity, it satisfactorily appearing that power for the purpose was expressly attributed to Baron Lederer by his official instructions.

"With a view to avoid obvious uncertainties and inconveniences, it is deemed indispensable that this Department should be promptly apprised of any appointment of consular officers of foreign powers in the United States, whether such appointments be occasioned by the death, illness, or absence of a consul or vice-consul, duly recognized by exequatur of the President, or whether the person appointed be a vice-consul or consular agent, expected to exercise functions in that character subordinate to a consul.

"Information whether the person appointed is a citizen of the United States, or a subject of the government who may appoint him, is also desirable.”

Mr. Seward, Sec. of State, to Mr. Stuart, British chargé, circular, June 25, 1862, MS. Notes to Gr. Br. IX. 208. This circular was prompted by the circumstance that persons had in some instances been placed in charge of consulates at ports in the Southern States, without notification to the Department of State. See Mr. Seward, Sec. of State, to Lord Lyons, British min., June 4, 1862, MS. Notes to Gr. Br. IX. 196.

Where provisional notification is given of the appointment of a consular officer pending formal presentation of his commission and application for an exequatur, no exequatur or certificate of recognition issues, but the Secretary of the Treasury is requested to cause the officers of his Department to give temporary recognition to the acts of the appointee. After the lapse of a reasonable time, if no further action is taken confirmatory of the appointment, it is dropped from the record.

Mr. Blaine, Sec. of State, to Sir Edward Thornton, British min., May 27, 1881, MS. Notes to Great Britain, XVIII. 519.

It formerly was the usage of none of the European governments to grant exequaturs to consuls residing in their colonies. Nevertheless, consuls were in some cases duly commissioned and sent to such places, on the supposition that, being unobstructed by the local authorities in the exercise of their consular functions, their services might be of use to their countrymen resorting thither; and the law, which recognized commercial agents of the United States in foreign ports, was considered as applying to such American consuls in the colonies as were not regularly acknowledged, and as conferring on H. Doc. 551-vol 5-2

« PředchozíPokračovat »