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A“ consul is not entitled, by virtue of his office, to be considered a diplomatic agent of his sovereign in the absence of an accredited minister, or chargé d'affaires of his country, and consequently can not jusily claim the privileges usually accorded to diplomatic functionaries.”
Mr. Forsyth, Sec. of State, to Mr. Ilagerdorn, Bavarian consul at Phila
delphia, Sept. 7, 1839, 30 MS. Dom. Let. 329.
Where a consul, by being appointed chargé d'affaires, acquires diplomatic privileges, he becomes so invested as chargé d'affaires, not as consul.
Cushing, At. Gen., 1855, 7 Op. 342.
The minister of the Netherlands, in announcing his departure on leave, stated that the business of the legation had, as in previous instances, been entrusted to the Dutch consul-general at New York; but that, as the consul-general was returning from Europe and might not arrive for several days, any communication from the legation “ would be signed, for the minister," by the person provisionally in charge of the consulate-general. As the consul-general had not, on previous occasions of a similar kind, been recognized by the Department of State in a diplomatic capacity, but had been corresponded with as consul-general of the Netherlands, it was thought proper to say to the person provisionally in charge of the consulate, when he signed, " for the minister, the chargé d'affaires, a. i.," that it was assumed that the title of chargé d'affaires was employed with reference to his ad interim direction of the affairs of the consulate."
Mr. Adee, Act. Sec. of State, to Mr. Bennebrock Gravenhorst, Sept. 24,
1898, MS. Notes to For. ('onsuls, IV. 424. See supra, § 661.
A trading consul, in all that concerns his trade, is liable in the same way as a native merchant. The character of consul does not give any protection to that of merchant when they are united in the same person.
Coppell v. IIall, 7 Wall. 542.
“ The privileges of a consul who engages in business in the country of his official residence are, under international law, more restricted, especially if he is a subject or citizen of the foreign state. If his exequatur has been granted without limitations, he may claim the privileges and exemptions that are necessary to the performance of the duties of his office; but in all that concerns his personal status or his status as a merchant it is doubtful whether he can claim any rights or privileges not conceded to other subjects or citizens of the state. He should, however, claim the same privileges and immunities that are granted to other merchant consuls in the same country.”
Consular Regulations of the United States (1896), $ 74, p. 29.
By conventions with Belgium, Germany, Independent State of the Congo, Italy, Netherlands, Roumania, and Servia, consuls are exempt from arrest except for crime. By treaty with Turkey they are entitled to suitable distinction and necessary aid and protection. In Muscat they enjoyed the inviolability of a diplomatic officer. In Austria-Hungary and France a consul is to enjoy personal immunities; but in France, if he is a citizen of the country or owns property there, or is engaged in commerce, he can claim only the immunities granted to other citizens of the country who own property or to merchants. In Austria-Hungary and Roumania, if engaged in business, he can be detained only for commercial debts.
Consular Regulations of the United States (1896), $ 81, p. 31.
In 1876 the dwelling of Mr. Bamberger, United States vice-consul at Genoa, was entered, and property there levied upon in satisfaction of a judgment against him. Mr. Spencer, the consul, was at the time at his post. By Article VI. of the consular convention between the United States and Italy of 1868, “consular offices and dwellings were to be at all times inviolable," and the local authorities were “not, under any pretext,” to “invade them,” nor to “ examine or seize the papers there deposited.” Although there was some difference between the English and Italian texts of the article, which might give rise to a question whether the immunity stipulated for consuls was to be enjoyed by a vice-consul when the latter was not charged with the consular functions, it was thought that the last sentence of Article VIII., which authorized the appointment of “ vice-consuls and consular agents” and stipulated that they should enjoy, with certain specified exceptions, the privileges secured by the convention to “ consular officers,” was quite explicit and granted the immunity claimed.
Mr. Fish, Sec. of State, to Mr. Marsh, min. to Italy, No. 554, Dec. 6, 1876,
MS. Inst. Italy, II. 6.
2. IN EASTERN COUNTRIES.
“ In non-Christian countries the rights of exterritoriality have been largely preserved, and have generally been confirmed by treaties to consular officers. To a great degree they enjoy the immunities of diplomatic representatives, together with certain prerogatives of jurisdiction, the right of worship, and, to some extent, the right of asylum. These immunities extend to exemption from both the civil and criminal jurisdiction of the country to which they are sent, and protect their households and the effects covered by the consular residence. Their personal property is exempt from taxation, though it may be otherwise with real estate or movables not connected with the consulate. Generally, they are exempt from all personal impositions that arise from the character or quality of a subject or citizen of the country.”
('onsular Regulations of the l'nited States (1896), $ 75, p. 29.
Such extraterritoriality as consuls enjoy in the Mohammedan states, for example, is due to the fact that these states are not admitted to a full community of international law with the nations of Christendom, and not to the consular office. The institution of consuls originated in the mere fact of differences in law and religion, at that period of modern Europe in which it was customary for distinct nationalities, coexisting under the same general political head, and even in the same city, to maintain each a distinct municipal government. Such municipal colonies, organized by the Latin Christians, and especially by those of the Italian Republies in the Levant, were administered, each by its consuls, or proper municipal magistrates, whose commercial relation to the business of their countrymen was a mere incident of their general municipal authority. The authorization of a consul to communicate directly with the government near which he resides does not endow him with the diplomatic privileges of a minister.
('ushing, At. Gen., 18.5, 7 Op. 312.
“Your dispatch No. 61, of the 16th ultimo, relative to the question of precedence which has arisen among the representatives of foreign powers of Tangier, has been received. In reply I have to state that every nation may consult its own pleasure in regard to the grade of its diplomatic or other representative in a foreign country. That grade must be presumed to be measured by its sense of the importance of its relations with the power to which the representative may be accredited.
“ Consuls have diplomatic functions in the Barbary States. The United States consul is accredited to the Emperor of Morocco. His predecessors were accredited in the same way, and the consuls at Tripoli, Tunis, and in Egypt are respectively accredited to the heads of the governments of those countries."
Mr. Seward, Sec. of State, to Mr. McMath, consul at Tangier, Dec. 30,
1868, Dip. Cor. 1868, II. 172.
In extreme cases, where the privileges of a consulate are invaded, the flag of the United States may be struck by the consul, and all friendly intercourse with the authorities of the residence suspended.
Mr. Webster, Sec. of State, to Mr. McCauley, April 20, 1852, MS. Inst.
Barbary Powers, XIV. 132.
“ According to the terms of the treaties confirmed by those of the exequaturs, granted by the Beys of Tunis to the consular officers in Tunis, the honors, privileges, and prerogatives they had a right to were the following: Right to put a flagstaff and flag on the consular house; right to have one or more janissaries appointed by the Bey; to be exempted from civil or criminal jurisdiction ;* to be exempted from custom-house duties upon personal effects for the consul and family; to have the right of refuge or inviolability of the consular house and official documents; right to the clause of the most favored nation; exemption from taxes upon the consular house. These privileges have lasted for centuries."
Mr. Chapelié, vice-consul at Tunis, to Mr. Uhl, Assist. Sec. of State, Feb.
12, 1895, For. Rel. 1895, I. 415. With reference to the action taken by the consular body at Tunis, in
regard to their having been invited collectively, through their dean, instead of individually, to attend a garden party given by the French resident, in his dual capacity as minister of the Bey, the Department of State said that, as the incident did not suggest any discrimination against the United States representative, there seemed to be no serious ground of complaint on the part of this government. (Mr. Adee, Act. Sec. of State, to Mr. Chapelié, No. 471, July 11, 1895, MS. Inst. France, XXIII. 129.)
In December, 1899, the consul at Smyrna sent his cavass to Magnesia, a place 30 miles distant, to recover certain merchandise which belonged to A. S. Avedikian, third dragoman of the consulate, and which had been sequestered by order of a Turkish court, without notice to the consul, in a building leased by Avedikian. The cavass proceeded to Magnesia, broke the judicial seals on the building, and entered into possession. Two days later some Turkish soldiers, acting under orders of the governor, entered the house and arrested him, took from him his arms, and sent him in custody to Smyrna, where after four hours' further detention he was released.
The United States legation at Constantinople protested against the arrest of the cavass and demanded the return of his arms, which was done. In reporting the incident, Mr. Griscom, chargé, said:
" In regard to the arrest of the cavass, I would beg to point out that the injury to the government of the United States is serious. The cavasses are privileged persons, free from arrest under the Turkish law, whose function is to insure the safety of the persons and property of the official representatives of foreign powers in the Turkish Empire. If they may be arbitrarily arrested and imprisoned, their value ceases.'
In a later report he said:
“ In regard to the arrest of the cavass, I have had the honor already to submit to the Department the question of a demand for reparation. Although the prestige of our consulate at Smyrna has suffered and the cavass has been severely humiliated, yet I can not but feel that the offense received by the United States government is offset by the arbitrary action of the consul in breaking the seal of a Turkish court without first exhausting all diplomatic and administrative interven-' tion. There is 'little doubt but that the incident could have been avoided had the consul referred the question to this legation at any time during the fifteen days that elapsed between the illegal placing of the sequester, December 10, and the breaking of the seals of the court, December 25. I would therefore respectfully suggest that the incident be dropped without further demands upon the Porte.”
For. Rel. 1900, 924, 932.
3. PROTECTION DUE TO CONSULAR OFFICERS.
“ As in war the bearers of flags of truce are sacred, or else wars would be interminable, so in peace ambassadors, public ministers, and consuls, charged with friendly national intercourse, are objects of especial respect and protection, each according to the rights belonging to his rank and station."
President Fillmore, annual message, Dec. 2, 1851, Richardson's Messages,
la Barca, Spanish min., Nov. 13, 1851, 6 Webster's Works, 507.
ous assembly, requiring him to give up certain persons supposed to be resident with him, is not an offense within that section of the act of April 30, 1790, which prescribes the punishment for any infraction of “the law of nations, by offering violence to the person of an ambasardor or other public minister.” (Bradford, At. Gen., 1794, 1 Op. 11.)
Insults by a foreign government to a consul, or encroachments by it on his rights, will justify a demand that in addition to other redress “ the flag of the United States shall be honored with a salute."
Mr. Seward, Sec. of State, to Mr. IIarvey, Nov. 29, 1861, MS. Inst. Por
tugal, XIV. 221.