(b) While the minor details of the ceremonial of reception of a diplomatic agent are not invariable, certain customs are well established. A diplomat officially notifies the receiving state of his arrival by sending, (1) if he be of the first rank, a secretary of the embassy to the minister of foreign affairs, with a copy of his letter of credence and a request for a day and hour when he may have an audience with the head of the state in order to present his credentials, (2) if of the second rank, while sometimes the above procedure is allowed, he usually makes the announcement and request in writing, (3) if of the third rank he always observes the last-mentioned procedure, (4) if of the fourth rank, chargé d'affaires, he notifies the minister of foreign affairs of his arrival and requests an audience.

The audience may be for any grade more or less formal, public or private. Usually diplomats of the first rank are received in public audience. At the audience the diplomat presents his letter of credence, and usually makes a brief address, of which he has earlier furnished a copy to the minister of foreign affairs in order that a suitable reply may be prepared. Diplomats of the second rank customarily receive a similar solemn audience. This may or may not be granted to ministers of the third rank. Official visits, varying somewhat in ceremonial in different states, follow.

(c) From the time when permanent missions began to be common, conflict between the representatives of different states made necessary fixed rules of precedence. As Wicquefort said in the latter part of the seventeenth century, "One of the things that most hinders Embassadors from paying one another civilities, is the Contest they have concerning Honours and Rank; not only on Account of the Competition of their Masters, but sometimes also by Reason of some Pretensions they have amongst themselves."[216] Wicquefort's citations of cases give ample evidence of the confusion prevailing in his day. Bynkershoek, in "De Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely less in 1721, though the rank by title was coming to be more fully recognized. Vattel in 1758 shows that there had arisen a more definite ceremonial[217] and a fairly clear gradation, yet as this had never been agreed to by any considerable number of states, and was not in accordance with any generally recognized principle, there were contests still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818) many of the disputed points in regard to precedence were adjusted. Certain general propositions are now admitted, such as, that no diplomat can pretend to special honors or immunities above other diplomats of the same rank.[218] The rule of the Congress of Vienna is followed, by which diplomats of the same class rank according to the precedence in the date of the official notification of their arrival.

Places of honor are now quite definitely fixed. On ceremonial occasions, where the representatives are seated at a table, as in an international congress, it may be somewhat varied as fronting the main window, opposite the main entrance to the room, in the place receiving the light over the left shoulder. When the place is determined by the relation to the head of the table or the presiding officer, the first honor, except in Turkey, is at his right, the second at his left, the third in the second place on the right, the fourth in the second place on the left, and so on. In processions the place of honor is sometimes first, sometimes last. For relatively short processions, certain more definite rules are usually observed. When only two participate, the first place is the place of honor; when three participate, the middle place, the place in advance being the second honor and the place in the rear the third; when four participate, the second place is the place of honor, the place in advance the second, the third and fourth being in honor in order; when five participate, the middle is the place of honor, the second place being the second in honor, the first the fourth in honor, the fourth the third in honor, and the fifth the fifth in honor.[219]

To avoid friction as to place of honor in signing treaties, etc., the principle of the alternat is usually followed, by which the copy going to a given nation has the name of its own representative first in order.[220] Sometimes the order is determined by lot, and sometimes is alphabetical in the order of the names of the states parties to the treaty.

(d) Certain prerogatives are held to appertain to the office of ambassador and to diplomats of the first rank. Among these are: (1) the title of Excellency, (2) the right to remain covered in the presence of the sovereign, unless the sovereign himself is uncovered, (3) the privilege of a dais in his own home, (4) the right to use a "coach and six" with outriders, (5) military and naval honors, (6) the use of the coat of arms over the door, (7) invitations to all court ceremonies. This last is usually extended to all diplomats. Those of lower rank than the ambassador sometimes claim modified forms of the above prerogatives.

Many of the interesting phases of diplomatic ceremonial are survivals of forms which in earlier days were most jealously and strenuously guarded. The closer relations of states and better understanding of mutual relations have made unnecessary the observance of many forms once vital to harmony.

Many courtesies are regarded as due diplomatic representatives by virtue of their rank. These are not uniform at the various courts, but generally include, notification of accession to the throne, notifications of births and deaths in the royal family, congratulations and condolences as public events warrant, and many others.

Diplomats are also entitled to receive salutes, which are usually arranged for in advance. The ambassador receives a salute of fifteen guns; the minister, eleven; and the chargé d'affaires, nine.

§ 76. Functions

The functions of a diplomatic representative in a broad sense are, to direct the internal business of the legation, to conduct the negotiations with the state to which he is accredited, to protect citizens of his state[221] and to issue passports under proper restrictions,[222] and to make reports to his home government.

(a) The internal business of the mission may in general be classified as concerned with (1) the custody of archives, (2) diplomatic correspondence[223] involving at times the use of cipher, (3) record of the work of the legation, (4) the exercise of a measure of jurisdiction over the household. In grave cases the diplomat must send the offender home for trial, or under certain circumstances, if a native of the state, hand the offender over to the local authorities. Otherwise his jurisdiction is mainly of a minor disciplinary sort. The assumption of such authority as claimed by Sully, in 1603, when he tried and condemned to death one of the French suite, is now absolutely denied. Indeed, James I. pardoned the offender whom Sully had delivered to him for execution. In 1896 Great Britain denied the right of the Chinese ambassador to detain a Chinaman who was held in the legation under charge of political conspiracy, and compelled his release.

(b) The conduct of negotiations with the state to which he is accredited may involve, (1) verbal communications with the sovereign or ministers. The purport of such communications may be preserved in writing known as briefs of the conversation, or aids to the memory. In cases of somewhat formal conversations the written reports may be called notes or memoranda. To the procès-verbaux, or reports of international conferences for the discussion of treaty stipulations, the name protocol is usually given. (2) Formal communications with the sovereign or ministers, (3) the maintenance of diplomatic privileges and immunities, (4) such action as may be necessary to protect his state's interests so far as possible, and particularly its treaty rights.

(c) The diplomat's relations to the citizens of his own country are largely determined by the domestic law of his own state, and usually involve, (1) a measure of protection to his fellow-citizens; (2) issue and visé of passports, and in some countries the issue of certificates of nationality and travel certificates; (3) in cases of extradition of citizens of his own state from the foreign state, the presentation of the requisition for extradition; and in cases of extradition of citizens of the state to which he is accredited from his own state, usually the certification that the papers submitted as evidence are "properly and legally authenticated."[224] In some states diplomats are authorized to perform notarial acts.[225] (4) The exercise of a reasonable courtesy in the treatment of his fellow-citizens.

All these functions vary with local law. The practice is not uniform, as is evidenced in the inconsistencies in regard to regulations as to the marriage by the diplomatic agent.[226]

(d) In making reports the diplomat is supposed to keep his own government informed upon, (1) the views and policy of the state to which he is accredited, and (2) such facts as to events, commerce, discoveries, etc., as may seem desirable. These reports may be regular at specified periods, or special.

§ 77. Termination of Mission

The mission of a diplomatic representative may terminate in various ways.

(a) A mission may terminate through the death of the diplomat. In such a case there may properly be a funeral befitting the rank of the diplomat. The property and papers of the mission are inventoried and sealed by the secretary, or in case of absence of secretaries and other proper persons, by the diplomats of one or more friendly powers. The inheritance and private property of the diplomat, of course, follow the law of his country, and the property of the deceased is exempt from local jurisdiction.

(b) The mission may terminate in ordinary course of events, by (1) expiration of the period for which the letter of credence or full power is granted, (2) fulfillment of the purpose of the mission if on a special mission, (3) change of grade of diplomat, (4) the death or dethronement of the sovereign to whom the diplomatic agent is accredited, except in cases of republican forms of government. In the above case new letters of credence are usually regarded as essential to the continuance of the mission. The weight of opinion seems to indicate that the mission of a diplomat is terminated by a change in the government of his home country through revolution, and that new letters of credence are necessary for the continuance of his mission.

(c) A mission may be interrupted or broken off through strained relations between the two states or between the diplomatic agent and the receiving state. (1) A declaration of war immediately terminates diplomatic relations. (2) Diplomatic relations may be broken off by the personal departure of the agent, which departure is for a stated cause, such as the existence of conditions making the fulfillment of his mission impossible, or the violation of the principles of international law. (3) Diplomatic relations may be temporarily suspended, owing to friction between the states, as in the case of the suspension of diplomatic relations between Great Britain and Venezuela from 1887 to 1897, owing to dispute upon questions of boundary. In 1891 Italy recalled her minister from the United States on account of alleged tardiness of the United States authorities in making reparation for the lynching of Italians in New Orleans on March 14, 1891.[227] (4) A diplomatic agent is sometimes dismissed either on grounds personal to the diplomat, or on grounds involving the relations of the two states. When, in 1888, the demand for the recall of Lord Sackville, the British minister at Washington, was not promptly complied with, Lord Sackville was dismissed and his passport sent to him. Lord Sackville had, in response to a letter purporting to be from an ex-British subject, sent a reply which related to the impending presidential election. His recall was demanded by telegraph Oct. 27. The British government declined to grant it without time for investigation, and his passport was sent him on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister at Washington, having been for some time past such as materially to impair his usefulness to his own Government, and to render intercourse with him for either business or social purposes highly disagreeable," it was the expressed opinion of the President that "the interests of both countries would be promoted ... if the head of the Russian legation here was to be changed." The President, however, agreed to tolerate the minister till after the contemplated visit of the grand duke. The communication also stated, "That minister will then be dismissed if not recalled."[228]

(d) The ceremonial of departure is similar to that of reception. (1) The diplomat seeks an interview according to the method outlined in the ceremonial of reception, in order to present his letter of recall. (2) In case of remoteness from the seat of government the agent may, if necessary, take leave of the sovereign by letter, forwarding to the sovereign his letter of recall. (3) It very often happens that a diplomatic agent presents his successor at the time of his own departure. (4) In case of change of title the diplomat follows the ceremonial of departure in one capacity with that of arrival in his new capacity. (5) It is understood that the agent, after the formal close of his mission, will depart with convenient speed, and until the expiration of such period he enjoys diplomatic immunities.

§ 78. Immunities and Privileges

Few subjects involved in international relations have been more extensively discussed than the privileges and immunities of diplomatic agents. Many of the earliest treatises on international affairs were devoted to such questions. In order that any business between states might be carried on, some principles upon which the diplomatic agent could base his action were necessary. The treatment of the agent could not be left to chance or to the feeling of the authorities of the receiving state. Gradually fixed usages were recognized. These immunities and privileges may be considered under two divisions: personal inviolability, and exemption from local jurisdiction, otherwise known as exterritoriality.

(a) Inviolability. The person of the agent was by ancient law inviolable. According to the dictum of the Roman Law, sancti habentur legati. In accord with this principle the physical and moral person is inviolable. Any offense toward the person of the ambassador is in effect an offense to the state which he represents, and to the law of nations. The receiving state is bound to extend to the diplomatic agent such protection as will preserve his inviolability. This may make necessary the use of force to preserve to the diplomatic agent his privileges. The idea of inviolability, as Calvo says, is absolute and unlimited, and based, not on simple convenience, but upon necessity. Without it diplomatic agents could not perform their functions, for they would be dependent upon the sovereign to whom they might be accredited.[229] In many states laws have been enacted during the last half of the nineteenth century fixing severe penalties for acts which affect the diplomatic agent unfavorably in the performance of his functions, or reflect upon his dignity.[230]

The privilege of inviolability extends, (1) alike to agents of all classes, (2) to the suite, official and non-official, (3) to such things as are convenient for the performance of his functions, (4) during the entire time of his official sojourn, i.e. from the time of the making known of his official character to the expiration of a reasonable time for departure after the completion of his mission. This also holds even when the mission is terminated by the outbreak of war between the state from which the agent comes and the state to which he is accredited. (5) By courtesy the diplomatic agent is usually accorded similar privileges when passing through a third state in going to or returning from his post.

A diplomatic agent may place himself under the law, says Despagnet, so far as attacks upon him are concerned: (1) when he voluntarily exposes himself to danger, in a riot, duel, civil war; (2) when in his private capacity he does that which is liable to criticism, e.g. as a writer or artist, provided the criticism should not degenerate into an attack upon his public character; (3) when the attacks upon him are in legitimate personal self-defense; (4) when, by his actions, he provokes on the part of the local government precautionary measures against himself, e.g. if he should plot against the surety of the state to which he is accredited.[231] Only in the case of extreme necessity, however, should any force be used. It is better to ask for the recall of the agent. In case of refusal or in case of urgent necessity the agent may be expelled.

(b) Exemption from local jurisdiction of the state to which a diplomatic agent is sent, or exterritoriality in a limited sense, flows naturally from the admitted right of inviolability. The term "exterritoriality" is a convenient one for describing the condition of immunity which diplomatic agents enjoy in a foreign state, but it should be observed that the custom of conceding these immunities has given rise to the "legal fiction of exterritoriality," rather than that these immunities are based on a right of exterritoriality. The practice of granting immunities was common long before the idea of exterritoriality arose.[232] The exemptions give to diplomatic agents large privileges.

(1) The diplomatic agent is exempt from the criminal jurisdiction of the state to which he is accredited. In case of violation of law the receiving state has to decide whether the offense is serious enough to warrant a demand for the recall of the agent, or whether it should be passed without notice. In extreme cases a state might order the agent to leave the country, or in case of immediate danger might place the agent under reasonable restraint. Hall considers these "as acts done in pursuance of a right of exercising jurisdiction upon sufficient emergency, which has not been abandoned in conceding immunities to diplomatic agents."[233]

(2) The diplomatic agent is exempt from civil jurisdiction of the state to which he is sent, and cannot be sued, arrested, or punished by the law of that state.[234] This rule is sometimes held to apply only to such proceedings as would affect the diplomat in his official character; but unless the diplomat voluntarily assume another character, he cannot be so proceeded against. If he become a partner in a firm, engage in business, buy stocks, or assume financial responsibilities, it is held in theory by some authorities that the diplomatic agent may be proceeded against in that capacity. The diplomatic agent of the United States is distinctly instructed that "real or personal property, aside from that which pertains to him as a minister, ... is subject to the local laws."[235] The practice is, however, to extend to the diplomat in his personal capacity the fullest possible immunity, and in case of need to resort to his home courts, or to diplomatic methods by appeal to the home government, for the adjustment of any difficulties that may involve its representative in foreign court proceedings. The real property of the diplomatic agent is, of course, liable to local police and sanitary regulations. In cases where a diplomatic agent consents to submit himself to foreign jurisdiction, the procedure and the judgment, if against him, cannot involve him in such manner as to seriously interfere with the performance of his functions. He cannot be compelled to appear as witness in a case of which he has knowledge; however, it is customary in the interests of justice for the diplomatic agent to make a deposition before the secretary of the legation or some proper officer. By the Constitution of the United States, in criminal prosecutions the accused has a right to have the evidence taken orally in his presence. The refusal to give oral testimony of M. Dubois, the Dutch minister to the United States in 1856, resulted in his recall.[236] The Venezuelan minister, however, testified in open court as a courtesy to the United States government in the trial of the assassin of President Garfield.[237] The United States at the present time maintains that "a diplomatic representative cannot be compelled to testify, in the country of his sojourn, before any tribunal whatsoever." This may be considered the generally accepted principle, though the interests of general justice and international courtesy frequently lead to voluntary waiving of the rule with the consent of the accrediting state.

(3) The official and non-official family enjoy the immunities of their chief as necessary for the convenient performance of his mission. Questions in regard to the immunities of the non-official suite have sometimes arisen. To avoid this it is customary for the diplomat to furnish the receiving state with a list of his family. Great Britain does not admit the full immunity of domestic servants. When Mr. Gallatin was United States minister to Great Britain, his coachman, who had committed an assault beyond the hôtel of the minister, was held liable to the local jurisdiction. As a diplomatic agent can voluntarily turn over an offender to the local authorities, and as he would naturally desire the observance of local law, there would be little danger of friction with local authorities anywhere, provided a just cause could be shown.

Couriers and bearers of dispatches are entitled to immunities so far as is necessary for the free performance of the specific function.

(4) The house and all grounds and buildings within the limits of the diplomatic residence are regarded as exempt from local jurisdiction. Great Britain claimed the right of entry to arrest Mr. Gallatin's coachman above mentioned, though admitting that such entrance should be made at a time to suit the convenience of the minister if he did not care to hand him over directly. This immunity extends also to carriages and other necessary appurtenances of the mission.

Children born to the official family in the house of the diplomatic agent are considered as born in the state by which the agent is accredited.

(5) The right of asylum in the house of the ambassador is now generally denied. In 1726 the celebrated case of the Duke of Ripperda, charged with treason, gave rise to the decision by the Council of Castile that the duke could be taken from the English legation by force if necessary, because the legation, which had been established to promote good relations between the states, would otherwise be used for overthrowing the state in which it had been established.[238] It may be regarded as a rule that, in Europe and in the United States, the house of a diplomatic agent affords only temporary protection for a criminal, whether political or otherwise, and that on demand of the proper authority the criminal must be surrendered. Refusal is a just ground for demand for recall of the diplomatic agent. The United States instructs its agents that "The privilege of immunity from local jurisdiction does not embrace the right of asylum for persons outside of a representative's diplomatic or personal household."[239] This right is, however, recognized in practice, both by the United States and European nations, so far as pertains to the houses of the diplomats in South American states. The United States, in 1870, tried without avail to induce the European nations to agree to the discontinuance of the practice. In 1891, in Chile, Minister Egan, of the United States, afforded refuge in the legation to a large number of the political followers of Balmaceda. Chile demanded his recall, but the United States maintained that there must be sufficient grounds for such action. In Eastern countries it has been the practice to afford asylum in legations in times of political disturbance and to political offenders. In 1895 the British ambassador at Constantinople gave asylum to the deposed grand vizier at Constantinople. It can be said, however, that the tendency is to limit the granting of asylum to the fullest possible extent,[240] and finally to abolish the practice altogether, as has been the case with the ancient extension of this privilege to the neighborhood of the legation under the name of jus quarteriorum.[241]

(6) In general, the diplomatic agent is exempt from personal taxes and from taxes upon his personal goods. The property owned by and devoted to the use of the mission is usually exempt from taxation. In this respect the principle of reciprocity is followed among some states. The taxes for betterments, such as paving, sewerage, etc., are regarded as proper charges upon the mission. A state has a right to make such regulations as it deems necessary to prevent the abuse of this immunity from taxation. It is also customary for a third state to grant to a diplomat passing through its territory immunity from duties. Diplomatic agents are also exempt from income, military, window, and similar taxes.

(7) It is hardly necessary now to mention the fact that the diplomatic agent is entitled to freedom of religious worship within the mission, provided there be no attempt by bell, symbol, or otherwise to attract the attention of the passer-by to the observance. This privilege was formerly of importance, but now is never questioned.

§ 79. Diplomatic Practice of the United States

Some of the minor points of procedure and functions may be seen by the study of the customs and rules of any large state, as in the United States.

(a) Official communications involving international relations and general international negotiations are within the exclusive province of the Department of State, at the head of which stands the Secretary of State. In other states this department is commonly called the Department of Foreign Affairs, and its chief is the Minister or Secretary for Foreign Affairs, and was so designated in the United States from 1781 to 1789. The Department of State of the United States, however, performs many functions not strictly within a Department of Foreign Affairs, as an enumeration of the Bureaus will show.

(1) Bureau of Appointments.

(2) Diplomatic Bureau.

(3) Consular Bureau.

(4) Bureau of Indexes and Archives.

(5) Bureau of Accounts.

(6) Bureau of Rolls and Library, which, besides other duties, has charge of the publication of the laws, treaties, proclamations, and executive orders.

(7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of Statistics).

(b) The Constitution provides that, "In all cases affecting ambassadors, other public ministers, and consuls," the Supreme Court has original jurisdiction.[242]

(c) A diplomatic agent cannot, without consent of Congress, "accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state."[243] This provision does not, however, prevent the rendering of a friendly service to a foreign power, and it may be proper for him, having first obtained permission from the Department of State, to accede to the request to discharge temporarily the duties of a diplomatic agent of any other state.[244]

(d) In case of revolution a diplomatic agent may extend protection to the subjects of other friendly powers left for the time without a representative.[245] In neither this nor in the preceding case does the United States become responsible for the acts of its diplomatic representative in so far as he is acting as agent of the other state or states.

(e) "It is forbidden to diplomatic officers to participate in any manner in the political concerns of the country of their residence; and they are directed especially to refrain from public expressions of opinion upon local political or other questions arising within their jurisdiction. It is deemed advisable to extend similar prohibition against public addresses, unless upon exceptional festal occasions, in the country of official residence. Even upon such occasions any reference to political issues, pending in the United States or elsewhere, should be carefully avoided."[246] A diplomatic agent is forbidden to recommend any person for office under the government to which he is accredited.[247] The diplomatic agent should not become the agent to prosecute private claims of citizens.[248] The diplomatic agent should not retain any copy of the archives, nor allow the publication of any official document, without authorization of the Department of State. The Department in general disapproves of residence of the agent elsewhere than at the capital of the receiving state.

(f) Joint action with the diplomatic agents of other powers at a foreign court is deprecated, although conferences resulting in a common understanding in cases of emergency are considered desirable.[249]

(g) It is permitted that the diplomatic agent of the United States wear the uniform and bear the title of the rank attained in the volunteer service of the Army of the United States during the rebellion.[250] It is prohibited by a later statute to wear "any uniform or official costume not previously authorized by Congress."[251] This has been interpreted as applying to dress denoting rank, but not to the prescribed court dress of certain capitals;[252] and "diplomatic officers are permitted to wear upon occasions of ceremony the dress which local usage prescribes as appropriate to the hour and place."[253]

(h) The United States has never been liberal in compensating diplomatic agents for their services. In 1784 the salary of the highest grade was fixed at nine thousand dollars, and it had only been doubled at the end of the nineteenth century. Other states of equal dignity provide far more liberally for their representatives.

The whole matter of diplomatic agents has been the subject of numerous statutes.[254]

§ 80. Consuls

(a) Historically the office of consul preceded that of ambassador. The merchants of different states had dealings with each other long before the states, as such, entered into negotiations. The Egyptians, apparently as early as the fourteenth century B.C., intrusted the trial of certain maritime cases to a designated priest. The Mediterranean merchants appealed to the judicium mercatorium et maritimum in the sixth century B.C. The Greek proxenos performed some consular functions. Rome later had similar public servants. The consular system, however, did not develop during the long period of decay of the Roman Empire. In the days of the Crusades, the merchants settled in the coast cities of the Mediterranean. Quarters of the cities practically came under the jurisdiction of the foreign occupants. The consuls, probably at first chosen by the merchants, exercised this jurisdiction, under which the law of the state of the origin of the merchants was regarded as binding. Their functions were somewhat similar to those exercised in some Eastern states at the present time. As soon as conditions became more settled, the states gradually assumed control of these consular offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and the early Lex Rhodia show that many of the consular functions were recognized in the Middle Ages, and the institution of consuls seems to have been quite well established by the year 1200. The Hanseatic League in the fourteenth century had magistrates in many cities entitled aldermen, who were performing functions similar to those of the consuls of the Mediterranean.[255] England began to send consuls in the fifteenth century; the system rapidly spread, and the powers and functions of consuls were wide. From this time, with the growth of the practice of sending resident ambassadors, the extent of the consular duties was gradually lessened. The diplomatic functions formerly in the charge of the consuls were intrusted to the ambassadors, and other functions of the consuls were reduced by making them the representatives of the business interests of the subjects of the state in whose service they were, rather than of the interests of the state as such.[256] From the middle of the seventeenth century, when the responsibility of states to each other became more fully recognized, and government became more settled, the exterritorial jurisdiction of consuls was no longer necessary. The growth of commerce among the nations has increased the duties of the consul. The improved means of communication, telegraphic and other, has relieved both consuls and ambassadors of the responsibility of deciding, without advice from the home government, many questions of serious nature.

(b) The rank of consuls is a matter of domestic law, and each state may determine for its own officers the grade and honors attaching thereto in the way of salutes, precedence among its domestic officials, etc. There is no international agreement in regard to consuls similar to that of 1815-1818 in regard to diplomatic agents.

The United States differentiates the consular service more fully than most states, having the following: consuls-general, vice-consuls-general, deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial agents, vice-commercial agents, consular agents, consular clerks, interpreters, marshals, and clerks.[257] The term "consular officer," however, includes only consuls-general, consuls, commercial agents, deputy consuls, vice-consuls, vice-commercial agents, and consular agents.[258] The full officers are consuls-general, consuls, and commercial agents. The vice consular officers are "substitute consular officers" and the deputy consuls-general, deputy consuls, and consular agents are "subordinate consular officers."[259]

Consuls-general ordinarily have a supervisory jurisdiction of the consuls within the neighborhood of their consulate, though sometimes they have no supervisory jurisdiction. This is often exercised by the diplomatic agent accredited to the same state.

Most states have consuls-general, consuls, vice-consuls, consular agents, sometimes also consular students.

(c) The nomination of consuls is an attribute of a sovereign state. They may be chosen either from among its own citizens or from those of the foreign state. Consuls chosen from the citizens of the state to which they are accredited exercise only in part the full consular functions, the limit of the functions being determined by the laws of the accrediting state and by the laws of the receiving state. Some states refuse to receive their own citizens as consuls; others do not accredit foreigners as consuls.

The commission or patent by which a consul-general or consul is always appointed is transmitted to the diplomatic representative of the appointing state in the state to which the consul is sent, with the request that he apply to the proper authority for an exequatur, by which the consul is officially recognized and guaranteed such prerogatives and immunities as are attached to his office. The vice-consul is usually appointed by patent, though he may be nominated by his superior, and is recognized by granting of an exequatur. The exequatur may be revoked for serious cause, though the more usual way is to ask the recall of a consul who is not satisfactory to a state. The exequatur may be refused for cause. It is usually issued by the head of the state. If the form of government in the receiving state or in the accrediting state changes, it is customary to request a new exequatur.

Note. The consular agents, while appointed and confirmed as are the higher consular officers, do not in the practice of the United States receive an exequatur.

(d) Functions. The consul, as the officer representing particularly the commercial and business interests of the state from which he comes, and in a minor degree the other individual interests, has a great variety of functions. His functions are in general such as affect only indirectly the state in which he resides. He is not, like the diplomatic agent, directly concerned with affairs of state; he has no representative character, though in effect he is often the local representative of the diplomatic agent accredited to the state.

The functions of a consul are largely matters determined by custom, treaty stipulation, and by special provisions of his exequatur. Within these limits domestic law of the accrediting state determines the consul's functions. (1) In general the consul has many duties in connection with the commercial interests of the subjects of the state which he serves. These duties extend both to maritime and land commerce. The consul is to care that the provisions of commercial treaties are observed, that proper invoices of goods are submitted, and that shipment is in accord with the regulations of the state which he serves. He is to furnish such reports in regard to commercial and economic conditions as are required. These reports often involve many subjects only indirectly related to trade and commerce. (2) The consul has many duties relating to the maritime service of the state which accredits him. This usually includes such supervision of merchant vessels as the domestic law of his state may grant to him, together with that accorded by custom. His office is a place of deposit of a ship's papers while the ship remains in port. When necessary he may supervise the shipment, wages, relief, transportation, and discharge of seamen, the reclaiming of deserters, the care of the effects of deceased seamen, in some states the adjudication of disputes between masters, officers, and crews, and if necessary he may intervene in cases of mutiny or insubordination. In case of wrecked vessels the consul is usually left considerable latitude in his action. The consul may also authenticate the bill of sale of a foreign vessel to the subject of the state which accredits him. This authentication entitles the vessel to the protection of the consul's state. The consul may also be intrusted with other duties by treaties and custom of given states. (3) The consul represents the interests of the citizens of the state in whose service he is, in matters of authentication of acts under seal, in administration of the property of citizens within his district, in taking charge of effects of deceased citizens, in arbitration of disputes voluntarily submitted to him, visé of passports, and minor services. (4) The consul furnishes to the state which he represents information upon a great variety of subjects particularly relating to commercial, economic, and political affairs, the conditions of navigation, and general hydrographic information. Besides this he is expected to keep his state informed of the events of interest transpiring within his district.

As Hall says: "In the performance of these and similar duties the action of a consul is evidently not international. He is an officer of his state to whom are entrusted special functions which can be carried out in a foreign country without interfering with its jurisdiction. His international action does not extend beyond the unofficial employment of such influence as he may possess, through the fact of his being an official and through his personal character, to assist compatriots who may be in need of his help with the authorities of the country. If he considers it necessary that formal representations shall be made to its government as to treatment experienced by them or other matters concerning them, the step ought in strictness to be taken through the resident diplomatic agent of his state,—he not having himself a recognized right to make such communications."[260] In late years there has been in the consular conventions between different states a tendency to extend to consuls the right of complaint to the local authorities in case "of any infraction of the treaties or conventions existing between the states," and "if the complaint should not be satisfactorily redressed, the consular officer, in the absence of the diplomatic agent of his country, may apply directly to the government of the country where he resides."[261]

(e) In some of the Eastern and non-Christian states consuls have special powers and functions in addition to the ordinary powers and functions. The extent of the powers varies, and is usually determined by treaty. With the advance of civilization these special functions are withdrawn, as by the Treaty of the United States with Japan, Nov. 22, 1894,[262] the jurisdiction of the consular courts of the United States in Japan came to an end July 17, 1899.

In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.[263] In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;[264] in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceedings are not in accord with justice,[265] while in certain states or for certain cases mixed courts are constituted. Certain Western states in their domestic laws make provisions for appeal from the decision of the consular court to specified authorities as to the diplomatic agent or to some domestic tribunal.

This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.[266]

(f) The privileges and immunities vary according to the states and from the fact that a consul may be, (1) a citizen of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his functions, or (4) a citizen of the accrediting state engaged exclusively upon consular business.[267] It is, however, necessary that the state which grants an exequatur to, or receives as consul a person from one of the first three classes, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties.

Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag. The archives and official property are inviolable.

In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in writing; exemption from taxation; exemption from military charges and service,—is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum.

The consul of the third class, who, though an alien to the receiving state, engages in business other than consular duties, is subject to all local laws governing similarly circumstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those appertaining to his business capacity, which last are under local law.

The domiciled alien exercising consular functions is subject to local law as others similarly circumstanced, which, in some states, may involve considerable obligations. The freedom from local restrictions sufficient for the convenient performance of his consular duties is implied in the grant of the exequatur.

The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other classes, but only the immunities attaching to the office itself, and absolutely necessary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions.

In some of the Eastern states and in some of the non-Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents.

In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.[268]

In general, the consul, by virtue of his public office, is entitled to more respect than a simple citizen, or, as Heffter puts it, "consuls are entitled to that measure of inviolability which will enable them to exercise their consular functions without personal inconvenience."[269]

(g) The consular office may be vacated by a given occupant, (1) by death, (2) by recall, (3) by expiration of his term of service, (4) by revocation of his exequatur. This last cause is the only one needing attention. The exequatur may be revoked by the state issuing it, if the conduct of the holder be displeasing to the state. The state issuing the exequatur is sole judge. This does not necessarily imply any discourtesy to the accrediting state, as the consul does not represent the sovereignty of the state. It is customary, however, to give the accrediting state an opportunity to recall its consul. Exequaturs have, on several occasions, been withdrawn from consuls who have directly or indirectly aided the enemies of the receiving state, or have given offense by their participation in the public affairs of the receiving state. Consequently consuls are usually officially advised to refrain so far as possible from expressions of their opinions upon public affairs, either of the receiving or sending state.

CHAPTER XIV

TREATIES