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The Spanish legislation is not opposed to the consuls of the United States " receiving the oath which, according to the custom-house regulations of the Union, should be taken on making the invoices of merchandise destined to its ports;” and if it should be proved that such an oath has been taken falsely, the person who may have taken it will be condemned for the crime of falsity, and the competent judge will impose upon him the penalty designated for such (ases in the 227th article of the penal code.
Señor Calderon de la Barca, min. of state, to the Am. min. at Madrid,
March 17, 1854, enclosure B, with Mr. Soulé, min. to Spain, to Mr.
On June 24, 1874, the German foreign office called the attention of the American legation at Berlin to a case in which the United States district court at New York had issued an order directing certain American consuls in Germany, or their authorized agents, with the assistance of United States commissioners to be specially sent to Europe for the purpose, to take the sworn testimony of certain German subjects within the German Empire. The German foreign office pointed out that consular officers were not authorized by Article IX. of the consular convention between the two countries to discharge such functions. The German foreign office did not object to commissioners appointed by courts in the United States, whether the commissioners so appointed were consuls or other persons, obtaining information and making inquiries, provided that witnesses who were not American citizens gave such information voluntarily and were protected in so doing. But it pointed out that the exceptional privilege extended to United States consuls, by the consular convention between the two countries, of taking testimony under oath was expressly confined to witnesses of the same nationality as the consul. The German courts, said the foreign office, cheerfully complied, without any treaty obligation to that effect, with any request made by foreign courts of law for the examination under oath of designated persons. And the German law also provided that in such examination the parties might be represented, and that the attorneys might exercise a proper influence by putting questions through the judges.
For. Rel. 1874, 446, 458-464.
to obtaining testimony under oath. (Mr. Wharton, Assist. Sec. of
“ The German government has recently brought to the attention of the Department its objections to the taking of testimony of German subjects by our consular officers. In view of this our consul-general at Berlin issued, under date of June 26 last, a circular to the consular officers within his jurisdiction giving the opinion of our ambassador at Berlin that, under the existing regulations, it is not advisable for United States consular officers in Germany to take by commission, issued out of the courts, whether Federal or State, of the United States the testimony of German subjects. The German government prefers that the testimony shall be taken through letters rogatory."
Mr. Uhl, Act. Sec. of State, to Messrs. Dickinson, Thurber, and Stevenson,
Nov. 11, 1895, 205 MS. Dom. Let. 684.
sular officers from taking testimony, yet it has in fact been found
“Where the law, either of the United States or of one of the States of this Union, requires a notarial act to be performed by a consular officer of the United States, the performance of such act by a foreign consular officer, temporarily charged with the protection of American interests in a foreign country, is not valid or effective. Such is the case in respect of declarations made abroad by applicants for pensions, to which you refer. The statutes of the United States expressly provide that such declarations shall be made either before a diplomatic or consular officer of the United States, or before some officer of the country duly authorized to administer oaths for general purposes.'
“In this connection reference to Mr. Olney's instruction No. 896, of March 10, 1898, to Mr. Terrell, minister of the United States at Constantinople, is made,
“ The case in point was that of Louis Jones, whose claim for a pension was rejected by the Commissioner of Pensions, on the ground that there was no valid declaration on file, the officer before whom the declaration had been executed (the British vice-consul at Varna) not being an officer of the country authorized to administer oaths for general purposes.
“Mr. Terrell inquired, in view of the fact that there was no American representatives in Bulgaria and that the British consular officers there are charged with American interests, whether there was any one in the country who was ' authorized to administer oaths for general purposes.'
“ Mr. Olney replied: "The laws of the United States (Revised Statutes 4714, as amended by 27th Statutes, 272) authorize the Commissioner of Pensions to accept declarations of claimants residing in foreign countries made either: 1, before a United States minister or consul, or, 2, before some officer of the country duly authorized to administer oaths for general purposes, and whose official character and signature shall be duly authenticated by the certificate of a United States minister or consul. If there is an official of the Turkish government at Varna authorized to administer oaths generally, the simplest way would seem to be to have the affidavit made before him and his official character authenticated as required by the statute.'
“ The law relative to applications for patents is substantially the same. It provides that the oath of the applicant residing in a foreign country shall be taken before a diplomatic or consular officer holding a commission under the government of the United States, or before • any notary public of the foreign country in which the applicant may be.'
“ On the other hand, in respect of declarations on invoices of merchandise intended for export to the United States, the laws of the United States provide that such declarations may be certified by a consular officer of the United States or by a consul of a nation at the time in amity with the United States. If there is no such consul in the country, the authentication shall be made by two respectable merchants, if any there be, residing in the port from which the merchandise shall have been imported.'
Mr. Hay, Sec. of State, to Mr. Elliot, Jan. 12, 1900, 170 MS. Inst. Con
A commission to a United States vice-consul or commissioner named, returned executed under his signature as such, is admissible on proof of his signature and that he was reputed and acted as viceconsul before executing the commission. Stiff v. Nugent, 5 R. 217.
Hennen's La. Dig. ed. 1861, p. 573.
An affidavit, under the code, section 158, providing that proof of service outside the State shall be made by affidavit, without prescribing before whom it shall be made, may be made before a consular agent of the United States authorized by Rev. Stat. U. S. 1878, p. 311, to take affidavits.
Marine Wharf & Storage ('o. 1. Parsons (S. C. 1897), 26 S. E. 956.
5. AUTHENTICATION OF DOCUMENTS.
Consuls are not entrusted with the power of authenticating the laws of foreign nations, and their certificates alone are not sufficient proof of such laws.
Church v. Hubbart (1804), 2 (ranch, 187, 237.
The certification of the official character of a foreign notary is not such a notarial act as a consul of the United States is required to perform.
Stanbery, At. Gen., 1866, 12 Op. 1.
Under the act of 28 February, 1837, No. 38, the certificate of an American consul or commercial agent in any foreign county is legal evidence of the attributes, official station, and authority of any civil officer in such country, under its laws. Succession of Wedderburn, 1 R. 263; Succession of Farmer, Ib. 270; Succession of Hinde, Ib. 271.
Hennen's La. Dig. ed. 1861, p. 582.
The power to take the acknowledgment of deeds and other instruments by consuls of the United States is a power conferred upon them by State legislation, and is wholly outside of their functions as consuls or officers of the general government.
“ The recording acts of the several States are understood to differ as to their requirements and forms of certificates. It would be assuming a responsibility which might be criticised, and which might lead to mistakes resulting in serious consequences, were this Department to undertake to instruct its officers in the discharge of powers which it does not object to their performing for the convenience of the public, but which are imposed or conferred upon them by the legislation of several of the States, each one prescribing at its pleasure its own forms and requirements of proof or identification. This Department does not profess to be informed as to the various requirements, whether by statute or possibly resulting from judicial decisions in the several States.
" It is therefore deemed most advisable to leave the execution of the power conferred by State legislation on persons holding diplomatic or consular functions under the general government to the special instructions which may be given by them who desire to avail of their services."
Mr. Fish, Sec. of State, to Mr. Weeks, Jan. 21, 1875, 106 MS. Dom. Let. 260.
Where the laws of a State require that the acknowledgment of a deed made abroad to real property in the United States shall be taken " before a minister or consul," the acknowledgment should be taken before one of the officers specified. Although a “commercial agent " has the same general notarial powers as a consul, yet the law officer of the Department of State does not look upon the taking of such an acknowledgment as an ordinary notarial act. This objection also applies a fortiori to a “consular agent," who, not being a consular officer in the accepted or legal sense, has not general notarial functions.
Mr. Frelinghuysen, Sec. of State, to Mr. Ilale, Jan. 29, 1885, 1.54 MS.
Dom. Let. 10.5.
United States consuls are not competent to authenticate the seals of local officials of the States of the Union. The Department of State authenticates only the State seals, and can not authorize consuls to certify documents which it can not itself attest.
Mr. Cridler, Third Assist. Sec. of State, to Mr. Chester, No. 63, Dec. 26,
1899, 170 MS. Inst. ('onsuls, 296. This rule is not varied by Art. IX. of the consular convention with
Austria-Hungary of July 11, 1870.
In 1853 the Spanish consul at New York refused to authenticate the official signature of the Secretary of State of the United States to a document executed before a notary public by “the brothers Arango.” The consul's action was justified by the Spanish legation on the ground that the brothers Arango were “ fugitive criminals," condemned by default in the island of Cuba for treason, and that the document was therefore null and void, for which reason the consul could not legalize it, to say nothing of the fact that to do so would be " to afford the brothers Arango the means of eluding the law of Spain.” The Department of State, declaring that it was the first case of the kind that had occurred in the history of the government, protested against the refusal, maintaining that the consul should not have looked beyond the genuineness of the signature which he was requested to authenticate. The United States, it was said, in granting to the consul an exequatur, expected that “ citizens and inhabitants " of the country “ would have the benefit of the usual consular acts,” among which the authentication of the oflicial signature of the Secretary of State was one of the most common. The duty of authentication was not conceived to be “discretionary," nor was it to be - exercised arbitrarily with reference to the persons who may have executed the accompanying documents.” Such a right of discrimination between individuals was not believed to be enjoyed or exercised by any magistrate in the United States; and, “ as such a power would involve a right to make impertinent inquiries into private business, it would by no means be in conformity with public sentiment in this country and therefore would never be sanctioned by this government." . In maintaining this position the Department had sought to “vindicate a general principle." It had not been influenced either by the former relations to Iler Catholic Majesty's government of the parties to the instrument in question, “or by their present or prospective relations to the government of the United States;" and still less" by any desire to impart to documents executed in this country for the purpose of being used in Her Catholic Majesty's dominions any legal effect to which they may not be entitled under the law of nations, the treaties between the United States and Spain, and the municipal laws of the latter country."
Mr. Marcy, Sec. of State, to Mr. Magallon, Spanish min., Jan. 19, 1851,
MS. Notes to Span. Leg. VII. 10.