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 discharge their functions within the limits prescribed, which permission can be withdrawn for any misconduct.1 Privileges They have, during their term of office, according and status to the prevailing opinion, no special privileges beyond other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 Fœlix 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force from an officer of the United States, a vessel which he in the course of his duty had arrested, and his exequatur was revoked.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. ing 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 favored 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." 1 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 to the fact that formerly diplomatic intercourse passed chiefly 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. Who may By the practice of some nations, only a native can be employed to attend to the commercial interests of be consuls 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.2 1 About 1854, M Dillon, French consul at San Francisco, refused to appear and testify in a criminal case. The Constitution of the United States (Amendment VI.), in criminal cases grants accused persons compulsory process for obtaining witnesses, while our treaty of 1853, with France (Art. II.) says that consuls "shall never be compelled to appear as witnesses before the courts." Thus there was a conflict between the Constitution and the treaty, and it was held that the treaty was void. After long correspondence the French consuls were directed to obey a subpoena in future. See Dana on Wheaton, note 185, v.— - T. S. 2 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, published in 1870, under the direction of the Secretary of State. CHAPTER V. OF THE RIGHT OF CONTRACT AND ESPECIALLY OF TREATIES. § 101. between A CONTRACT is one of the highest acts of human free will: it is the will binding itself in regard to the future, of contract, and surrendering its right to change a certain ex- especially pressed intention, so that it becomes morally and states. jurally a wrong to act otherwise; it is the act of two parties in which each or one of the two conveys power over himself to the other in consideration of something done or to be done by the other. The binding force of contracts is to be deduced from the freedom and foresight of man, which would have almost no sphere in society or power of coöperation, unless trust could be excited. Trust lies at the basis of society; society is essential for the development of the individual; the individual could not develop his free forethought, unless an acknowledged obligation made him sure in regard to the actions of others. That nations, as well as individuals, are bound by contract, will not be doubted when we remember that they have the same properties of free will and forecast; that they could have no safe intercourse otherwise, and could scarcely be sure of any settled relations towards one another except a state of war, and that thus a state of society, to which the different needs and aptitudes of the parts of the world invite men would be impossible. We have already seen, that without this power a positive law of nations could not exist, which needs for its establishment the consent of all who are bound by its provisions. National contracts are even more solemn and sacred than private ones, on account of the great interests involved, of the deliberateness with which the obligations are assumed, of the permanence and generality of the obligations, measured by the national life, and including thousands of particular cases, — and of each nation's calling, under God, to be a teacher of right to all within and without its borders. With whom can states make contracts? Contracts can be made by states with individuals or bodies of individuals, or with other states. Contracts between states may be called conventions or treaties. Among the species of treaties those which put an end to a war and introduce a new state of intercourse, or treaties of peace, will be considered here, only so far as they partake of the general character of treaties: their relations to war will be considered in the chapter devoted to that subject. § 102. Treaties, allowed under the law of nations, are unconstrained acts of independent powers, placing them ties, what? under an obligation to do something which is not Lawful trea 1. Treaties can be made only by the constituted authorities of nations, or by persons specially deputed by them for that purpose. An unauthorized agreement, or a sponsio, like that of the consul Postumius at the Caudine Forks, does not bind the sovereign, it is held, for the engager had no power to — convey rights belonging to another. And yet it may be morally wrong in a high degree for the sovereign to violate such an engagement of a subordinate; for it might be an act of extreme necessity, to which the usual forms of governmental proceedings would not apply. Moreover the actions of military or naval commanders must be to a certain extent left without positive restrictions, and usage might be pleaded for many transactions of this nature. Again, from the nature of the case a faction, a province, or an integral part of a close confederation has no treaty-making power; although a loose confederation, like the Germanic, might exist, while conceding 1 Comp. Vattel, book ii., §§ 208-212. such a prerogative to its members. Individuals, or other dependent bodies, can make commercial arrangements with a foreign power, unless their laws forbid; but the arrangements apply to a particular case, and obligate none else; they are like any other private contracts; nor has a government over such a contracting party anything to do in the premises, save to protect and, if expedient, to afford its redress against injustice. Political engagements, or such as affect a body politic, can be made only by political powers. And the actual sovereign alone, or a power possessing the attributes of sovereignty at the time, can bind a nation by its engagements. § 103. Treaties made by a with limited sovereign powers. 2. If the power of a sovereign or of a government is limited by a ground-law, written or unwritten, a treaty cannot override that constitution. No one can lawfully exercise power, which does not, of right, belong to him. Thus under constitutional forms, where the treaty-making power is placed in particular hands, no others can exercise it, and where it is limited in extent, it cannot be lawfully exercised beyond that limitation. Where, however, an unlimited power of making treaties is given to a government, or to some department of it, the public domain and property may be alienated, or individual rights may be sacrificed for public purposes. And yet even the most absolute despot may make treaties, which neither his subjects nor third powers ought to regard as binding. Could the house of Romanoff, for instance, resign the throne of Russia to whom it pleased? The true view here is, that the province of absolutism is not to dispose of the national life, but to maintain it without those checks on the exercise of power which exist elsewhere. No power, however uncontrolled, was given to destroy a nation, or can lawfully do so. An interesting inquiry here arises, whether the treaty-making power in a federative union, like the United States, can alienate the domain of one of the States without its consent. 1 Kent, i., 166, 167. |