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diplomatic employés accredited to sovereigns, whether called envoys, ministers, ministers plenipotentiary, or internuncios. To the third, resident ministers accredited to sovereigns. To the fourth, chargés d'affaires accredited to ministers of foreign affairs, with whom would be reckoned consuls invested with diplomatic functions.1

In regard to the rank of the minister who shall represent a state at a particular court, the general rule is that one of such rank and title is sent, as has been usually received from the other party; and that the sovereigns having a royal title neither send ministers of the first rank, nor receive them from inferior powers.2

In regard to diplomatic etiquette, Dr. Wheaton observes that while it is in great part a code of manners, and not of laws, there are certain rules, the breach of which may hinder the performance of more serious duties. Such is the rule requiring a reciprocation of diplomatic visits between ministers resident at the same court.

As for the ceremonial of courts, an ambassador is to regard himself the representative of national politeness and goodwill, but to submit to no ceremony abroad which would be accounted degrading at home; for nothing can be demanded of him inconsistent with the honour of his country. A question somewhat agitated among us, who have no distinct costume for the chief magistrate or for those who wait on him, is-In what costume should our diplomatic agents appear at foreign courts ? In none other, it may be answered, than such as is appropriate when we pay our respects to the President of the United States, unless another is expressly prescribed. The rule is to emanate from home, and not from abroad; and 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 2 Heffter, § 209

1 Compare Heffter, § 208.

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, &c. (Compare § 134.) 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.

§ 95.

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

Consuls.

These,

its individual citizens or subjects, are called consuls. 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. (§ 94.)

Nothing exactly like the office of consuls was known to the ancients. The nearest resemblance to it was borne origin of the conby the proxeni of Greece, who, as their name im- sular office. plies, stood in the relation of hospitality to a public body or state, and, like other hosts and guests, might hand down the office in their family. Their chief duties were to entertain and honour 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.2

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.3 As for the second, it can be traced

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. But unfortunately the book is in French, and, so far as I know, has not been translated into English. Would it not be a good work to set up a French school at Washington for members of congress expecting to go on missions?

2 Compare Schömann, Griech. Alterth. ii. 22.

3 Compare Hegel, Gesch. d. Städteverfass. von Italien, ii. 205, et seq.

back to the twelfth century. In 1190, a charter 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. 1213-1276), gives to merchants of Barcelona the same privilege for parts beyond the sea under his sway. A charter of 1328 calls them, in the Provençal dialect, 'regens dels mercadiers que van per mar." 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 1253-55, in Pardessus (Lois Maritimes,' iv. 256), we learn that the appointment of consuls for foreign parts was there entrusted 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 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 at Marseilles. Important information in regard to this office is also given by the statutes of Ancona of the year 1397.2

Functions and

§ 96.

The functions of modern consuls are determined by special treaties and by the laws of their own land. Among duties of consuls. their usual duties in Christian lands, besides those of 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 legalising by their seal, for use within their own country, acts of judicial or other functionaries, and of authenticating marriages, births, and deaths among their countrymen, within their consulates.

Of receiving the protests of masters of vessels, of granting passports, and of acting as depositaries of sundry ships' 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 1 Du Cange, voce Consul. Compare Leonhardi, in Ersch u. Gruber's Encyclop. Voce Consulat 2 See Pardessus, u. s. v. 108, 116, et seq.

administering on the personal property left within their consulates by deceased persons, where no legal representative is at hand, and where law or treaty permits.

Our laws require masters of vessels, on entering a port for 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.

In general, throughout Christian lands, the principle of the control of the laws and courts over foreigners, with Jurisdiction of the exemption of certain privileged persons, is fully consuls in and out established. But as Christian states were reluctant of Christendom. 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 cognisance 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 treaty with China in 1844 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. 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. Similar arrangements have recently been made with Japan.2 (§ 65.)

Consuls, on exhibiting proof of their appointment, receive an exequatur, or permission to discharge their functions Privileges and within the limits described, which permission can be status of consuls. withdrawn for any misconduct. They have, during their term of office, according 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 1 Pardessus, Droit Commercial, vi. 294, et seq. Compare Kent, i. 45, Lect. ii.'; Wheaton, El. ii. 2, § 11.

120 THE FORMS AND AGENTS OF INTERCOURSE, ETC. § 96

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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, 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: 2 that by a convention of France with Spain in 1769, the consuls of the latter, being Spanish subjects, obtained immunity from arrest, excepting for atrocious crime and for commercial obligations. This covered ' only debts and other civil cases not implying crime or almost crime, and not growing out of their mercantile character.' Since that time all other nations, with whom France has stipulated that their consuls shall be placed on the footing of the most favoured nation, may claim the same immunity, but with this exception, consuls, being foreign subjects, are to be treated in France like all other members of the same nation.'

6

Although a consul has none of the privileges of an ambassador, yet an insult to his person, or an attack on his place of official business involves more of insult to his country than similar treatment of an ordinary stranger could do. He has in fact something of a representative character, and calls for the protection of his government in the exercise of his functions.

Consuls in the Mohammedan countries, owing, perhaps, to the fact that formerly diplomatic intercourse passed to some extent through their hands, and to their official character of protectors of their countrymen in those lands, have had nearly the same rights as ambassadors, including the right of worship, and in a degree that of asylum.

suls.

By the practice of some nations, only a native can be emWho may be con- ployed to attend to the commercial interests of his country in foreign ports. The United States, however, have hitherto freely employed foreigners in that capacity, especially in ports where our own commerce is small.3

1 Compare, among others, Bynkersh. De For. Leg. x. near the end.

2 Fœlix, i. 406, § 221.

3 For the laws of the United States relating to consuls, their privileges, duties, and rights of jurisdiction, and for the treaty stipulations concerning them, we refer to the Regulations prescribed for the use of the Consular Service of the United States, just published (1870) under the direction of the secretary of state.

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