United States authorized to perform diplomatic functions therein, unless expressly authorized by the President.1

eign govern

ments.

31. When an application is to be made to such Mode of adgovernment, it must be done through the minister dressing forof the United States, if there be one; if not, and the case should require it, the consul may address the proper department, but in respectful terms, stating the exigency of the case, and that an application to the subordinate officers could not be made, or that it had proved ineffectual.

versant with

con

32. It is the duty of a consul to be conversant with Consular offiall treaties, and with all commercial and consular cers to be conconventions; he should possess a thorough knowledge treaties, of the law of nations, and of the maritime and mer- ventions, and cantile laws of his own country, as well as those of regulations afthe country in which he resides, and also an acquaintance with its history and language, its manners and customs,2

1 Statutes at Large, vol. xi. p. 56.

Kent, vol. i. p. 44; Opinions of the Attorneys General, vol. i. pp. 41, 77, 406; vol. ii. p. 725; De Clercq, Formulaire, tome ii. pp. 32, 33; Dall. vol. ii. p. 297; "Animo consulem esse oportet, consilio, fide, gravitate, vigilantiâ, curâ toto denique munere consulatus omni officio tuendo, maximèque id quod vis nominis praescribit reipublicæ consulendo." Ciceronis Oratio in Pisonem.

fecting their own functions.

2

CHAPTER II.

EXTERRITORIAL AND OTHER PRIVILEGES OF CONSULS.1

When diplo- 33. THE United States may, with consent of the

matic duties

may be dis- government of another country, superadd to the regucharged by lar duties therein of consul, any of those of a minister. consular offi- There are two great classes of such cases, which might well be systematized; or the principle might be more explicitly recognized, in consular stipulations with foreign governments.

cers.

Consular privi

leges in cold

34. One is that of the transmarine possessions of nial or other de- sundry of the States of Europe. Here many cogent pendencies of reasons urge that the concession should be granted foreign States. to our consuls, by such States, of the right to address

the colonial or provincial governor. There is nothing in the law of nations to prevent this; it is convenient for all parties; it is a consular right exercised by treaty in the great pashalics of the Turkish empire. The United States have recently made provision to the same effect in treaty with a Christian power, namely, the Netherlands; and that government having thus wisely relinquished its long subsisting scruples on this point, we may reasonably expect similar liberality in future commercial negotiations with other countries of Europe.

35. The other class of cases of this nature is that

1 The remarks contained in this chapter are mostly extracted from an opinion of a late Attorney General, dated July 14, 1855, Opinions of the Attorneys General, vol. vii. pp. 342-349.

2 Statutes at Large, vol. x. p. 1150.

there is no dip

the United

States.

of a consul residing near a metropolitan government Consular where there is no minister, either because of tem- ties where porary cessation, or because inducements have not lomatic repreexisted for the interchange of diplomatic represent- sentatives of atives between such government and the United States. In this case it becomes the office, perhaps it may be said the right, of the consul to place himself, with the permission of his own government, in direct communication with the political authority of such government. Here, as in the other case, the fact occurs, and is of common convenience; it is not inconsistent with public law; and so far as regards the United States, it has example in treaties,-for instance, in our last consular convention with France.1 It is a thing of manifest necessity as between the United States and some of the countries of Germany, Consular with which our relations are entirely amicable, with- ties in out calling for permanent diplomatic representation. The German Bund, though in some features resembling our own federal republic, yet differs essentially in this, that, in the former, the federal authority, in matters of peace and war, acts on States, not individuals, and of course each State retains the power of foreign representation and negotiation. Hence, if we do not see cause to interchange ministers, we may yet well reciprocally enlarge the consular functions, in our relations with such States as Bavaria, Saxony, Würtemberg, Hanover, the Hessen, the Mecklenbürgs, or any other of the members of the Bund.

many.

Ger

36. Meanwhile, it would not in either of these Derivation of classes of cases follow, because a consul of the United exterritorial privileges by States in Bavaria, or one of Bavaria in the United States, may be admitted to address the government,

1 Statutes at Large, vol. x. pp. 992, 1000.

consuls.

Exterritorial privileges of consuls in Pa

countries.

that therefore he becomes a diplomatic personage, with international rights as such, and among them that of exterritoriality; nor does it follow that a consul is thereby entitled to the compensation of a diplomatic officer. If his commission be that of consul only, if his public recognition be an exequatur, the foreign consul is subject to the local law in the United States; and our own consul in the foreign country, if invested in any case with quasi-exterritorial rights, does not derive these from the law of nations, but only from the special concession, by general law or otherwise, of the particular foreign government. If, indeed, the United States see fit, in any case, to confer the function of chargé d'affaires on their consul, either with or without limitation of time, as they may lawfully do that is, to superimpose the office of minister on that of consul-then he has a double political capacity, and, though invested with full diplomatic privilege, yet becomes so invested as chargé d'affaires, not as consul; and the fact of such casual duplication of function does not change the legal status of consuls, whether they be regarded through the eye of the law of nations, or that of the United States.

37. It has been observed, that "in Egypt, Tunis, Tripoli, China, the islands of the Pacific, the consuls gan and Mo- enjoy all the diplomatic privileges. The motive is hammedan not only in the difference of law and religion with ours, but also in the absence of other diplomatic representatives." This remark requires qualification. In the case of China and Turkey, for instance, our consuls have not, as consuls, any "diplomatic privileges," except such as they might have in France

1 Despatches of United States consul at Frankfort-on-the-Main, December 23, 1854, and January 3, 1855.

during the absence of a minister; such exterritorial, not diplomatic, privileges, as they really enjoy, they enjoy, not because they are consuls, nor because of the absence of proper diplomatic representatives in those countries, for we have them, but because they are citizens of the United States. And the true explanation of the diplomatic rights appertaining to consuls in the Mohammedan States, whether independent ones, like Morocco and Muscat, or subject to the suzerainty of the Porte, like Tripoli, Tunis, and Egypt-and so of the Pacific or Indian islandsis, that they are not Christian, and are not admitted to a full community of international law, public or private, with us, the nations of Christendom.1

fice.

38. It might be demonstrated historically, what in Institution this place it will suffice to affirm, that the institution the consular ofof consuls, in their present capacity of international agents, 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.2

39. Such municipal colonies, organized by the Latin Consuls in the Christians, and especially by those of the Italian Levant. republics in the Levant, were administered each by its consuls, that is, its proper municipal magistrates of the well-known municipal denomination of ancient Italy. Their commercial relation to the business of their countrymen was a mere incident of their general municipal authority. Such, also, at the outset, was the nature of their political relation to other 1 See section 238, et seq. infra.

2 Tuson's British Consul's Manual, pp. 1, 4, 122, 124.