no rule, it is to be hoped, will ever be given out, inconsistent with the severe simplicity of a nation without a court.

An ambassador may be recalled, or sent home, or for some urgent reason declare his mission terminated, or it may expire by its own limitation, or by the completion of a certain official work, or by the death of the sovereign sending the ambassador, or of the sovereign to whom he is sent, or yet again by a change in his diplomatic rank. When, for any cause not implying personal or national misunderstanding, his mission is terminated, a letter of recall is generally necessary, which he is to deliver up, and ask for an audience to take leave of the sovereign or chief magistrate of the country where he has been residing. And again, when his rank has been changed without removal from his station, he presents a letter of recall and one of credence, as at first.1

The inviolability of foreign ministers belongs also to heralds, bearers of flags of truce, etc. (Comp. § 140.) Couriers and bearers of despatches are privileged persons, as far as is necessary for their particular service. But agents attending to the private affairs of princes, and secret envoys, when not accredited, are not entitled to the privileges of ambassadors under the law of nations.

§ 99.

Consuls.

The commercial agents of a government, residing in foreign parts, and charged with the duty of promoting the commercial interests of the state, and especially of its individual citizens or subjects, are called consuls. These, under the regulations of some countries are of different grades, being either consuls-general, consuls, or vice-consuls, from whom consular agents differ little. The consular office, also, may have a connection with that of diplomatic agents. (§ 98.) Nothing exactly like the office of consuls was known to the ancients. The nearest resemblance to it was borne by the proxeni of Greece, who, as their name implies, stood in the rela

1 For all the details of an ambassador's duty the Guide Diplomatique of Ch. de Martens (4th edition), Paris, 1851, is probably the best book. The second volume is a kind of complete letter-writer, useful, no doubt, to raw hands.

Origin of

tion of hospitality to a public body or state, and like other hosts and guests, might hand down the office in their the consular family. Their chief duties were to entertain and office. honor the ambassadors of the foreign state within the country where they resided, to help in distress its private citizens doing business there, and perhaps to represent them in commercial suits.1

The consuls of the Middle Ages, so far as they resembled modern consuls, seem to have been of two kinds: first, a college of judges or arbitrators, whose functions were exercised within the city or state which appointed them; and secondly, those who were chosen to settle disputes among the merchants of their town who resided in a foreign town or district. As for the first class it was not strange that merchants, who formed guilds by themselves, should have magistrates of their own; and the name given to them, consuls of the merchants, or of the sea, was borrowed from one of the prevailing names of the head officers of many Italian cities. As for the second, it can be traced back to century XII. In 1190, a charta of king Guy, of Jerusalem, grants the privilege to the merchants of Marseilles of appointing consuls of their own at Acco (St. Jean d'Acre), and in 1268, king Jacob of Arragon (Jayme I., A. D. 1213–1276), gives to merchants of Barcelona the same privilege for parts beyond the sea under his sway. A charta of 1328, calls them in the Provençal dialect "regens dels mercadiers que van per mar." 3 Such consuls were either resident, as those of the large trading cities of the Mediterranean, or temporary during the stay abroad of merchants setting sail in a vessel together. From a statute of Marseilles of 1253-1255, in Pardeşsus ("Lois Maritimes," iv., 256), we learn that the appointment of consuls for foreign parts was there intrusted to the rector of the town with the syndics and guardians of the treasury; that such consuls, under advice of their council, had the power of

1 Comp. Schömann, Griech. Alterth., ii., 22.

2 Comp. Hegel, Gesch. d. Städteverfass. von Italien, ii., 205 et seq.

8 Du Cange voce Consul. Comp. Leonhardi in Ersch. u. Gruber's Encyclop,, Voce Consulat.

imposing fines and of banishing; — subject, however, to the review of the home government on complaint of the aggrieved person,—that if no consuls should have been appointed for any place where ten or more Marseilles merchants were residing, these of themselves might make choice of one, until the office could be filled; that the consul refusing to serve was finable; and that no man enjoying special privileges in the place, and no one but a wholesale dealer, could hold the office. The consul, if parties are willing to submit their differences to him, is directed to call in two assistants. The fines which he may exact from parties whose differences he has settled are to go, half to him and half to the treasury of Marseilles. Important information in regard to this office is also given by the statutes of Ancona of the year 1397.1

§ 100.

The functions of modern consuls are determined by special treaties and by the laws of their own land. Among Functions their usual duties in Christian lands, besides those of and duties general watchfulness over the commercial interests of their nation, and of aid to their countrymen in securing their commercial rights, may be enumerated the duties —

of consuls.

Of legalizing by their seal, for use within their own country, acts of foreign judicial or other functionaries, and of authenticating marriages, births, and deaths, among their countrymen, within their consular districts.

Of receiving the protests of masters of vessels, of granting passports, and of acting as depositaries of sundry ship's papers. Of reclaiming deserters from vessels, providing for destitute sailors, and discharging such as have been cruelly treated.

Of acting on behalf of the owners of stranded vessels, and of administering on the personal property left within their consular districts by deceased persons, where no legal representative is at hand, and where law or treaty permits, and thus of representing them, it may be, before the courts of his district. Our laws require masters of vessels, on entering a port for 1 See Pardessus, u. s., v., 108, 116, et seq.

traffic, to lodge with the consul their registers, sea-letters, and passports; and make it a consul's duty to send destitute seamen home at the public expense.

Jurisdiction of consuls

in and out

dom.

In general, throughout Christian lands, the principle of the control of the laws and courts over foreigners with the exemption of certain privileged persons, is fully of Christen- established. But as Christian states were reluctant to expose their subjects to the operation of outlandish law and judgments, they have secured extensively by treaty to their consuls, in Mohammedan and other non-Christian lands, the function of judging in civil and even in criminal cases, where their own countrymen are concerned. In such cases, according to the laws of France,1 the consul is assisted by two French residents. "The Frank quarter of Smyrna is under the jurisdiction of European consuls, and all matters touching the rights of foreign residents fall under the exclusive cognizance of the respective consuls." By our treaty of 1833, with the Sultan of Muscat, our consuls there are exclusive judges of all disputes between American citizens; and by our treaties with China in 1844 and 1858, American citizens committing crimes in China are subject to be tried and punished only by the consul, or other public functionary, empowered so to act by our laws. Controversies between American citizens and Chinese may be brought in the last instance before a mixed court. (Treaty of 1844, Art. 24.) Disputes, also, between citizens of the United States, or between them and other foreign residents, are not to be tried by the laws and courts of China, but in the former case come before our authorities, and in the other are to be regulated by treaties with the respective governments to which the other parties at law are subject.2 The treaty of 1858 with Japan provides that the courts of the offending party are to judge, and that creditors must sue in the courts of their debtors. (Art. VI.) Comp. § 69.

Consuls on exhibiting proof of their appointment, if not objectionable persons, receive an exequatur, or permission to

1 Pardessus, Droit Commercial, vi., 294 et seq.

2 Comp. Kent, i., 45, Lect. ii.; Wheaton, Elements, ii., 2, § 11.

of consuls.

discharge their functions within the limits prescribed, which permission can be withdrawn for any misconduct.1 Privileges They have, during their term of office, according and status to the prevailing opinion, no special privileges beyond other foreigners, and are thus subject to the laws, both civil and criminal, of the country where they reside. They enjoy no inviolability of person, nor any immunity from jurisdiction, unless it be given to them by special treaty. Heffter, however (§ 244), makes the safe statement that they possess "that inviolability of person which renders it possible for them to perform their consular duties without personal hindrance." Vattel (ii., 2, § 34) goes still farther. A sovereign, says he, by receiving the consul, "tacitly engages to allow him all the liberty and safety necessary in the proper discharge of his functions." His functions require that he be "independent of the ordinary criminal justice of the place where he resides," and "if he commit any crime, he is, from the respect due to his master, to be sent home." But the best authorities agree that it is at the option of a sovereign, whether the consul shall have the benefit of such comity or not,2 and it seems inconsistent with modern ideas of the territorial jurisdiction of the sovereign that a man who is very generally a merchant should be exempt from the law which applies to people of his class about him. Chancellor Kent cites Warden, as producing authorities to show that in France "a consul cannot be prosecuted without the previous consent of his government;" but Felix sets the matter in the following light: 3 that by a convention of France with Spain in 1769, the consuls of the latter, being Spanish subjects, obtained immunity from arrest, except

1 Consuls sometimes have put forward most extravagant pretensions. In 1793, the French consuls assumed the power to set up admiralty courts in the United States, and to adjudicate upon prizes brought in by French privateers. Our government threatened to withdraw their exequatur, unless they gave up their pretensions. One of them, M. Duplaine, at Boston, rescued with an armed force from an officer of the United States, a vessel which he in the course of his duty had arrested, and his exequatur was revoked. - T. S.

2 Comp. among others, Bynkersh., De For. Leg., 10, near the end. 3 Fœlix, i., 406, § 221.