estate, nor as consul aid any other person in so ad- touching propministering, without judicial authorization; and that erty. the whole extent of his consular authority is to guard and collect the assets of a decedent, and to transmit them to the United States, or to aid others in so guarding, collecting, and transmitting them, to be disposed of therein pursuant to the law of the decedent's State.1 600. If the property of the decedent be real Disposition of estate the immovable property of the civil law— real estate. then its disposition depends altogether on the laws of the place, unless there be treaty stipulations to the contrary, or the succession consist of personal estate exclusively. The local authorities are alone competent to determine questions of inheritance and succession. fects. 601. As to movables, or personal effects, then, Administration also, unless the contrary be stipulated by treaty, the of personal efadministration of the estate of a decedent is primarily a question of the local jurisdiction, and a consular officer can intervene only so far as the local law may permit, though the distribution of the estate will not of necessity be governed by the local law. 602. Every consular officer of the United States will remember that he may intervene by way of advice, or in the sense of surveillance, but not otherwise as a consular officer, and of right. 603. Thus, if the decedent, being a citizen of the Minor heir. United States, leaves in a foreign country a minor heir, a consular officer may intervene to see that he has a proper guardian to secure his interest in the succession. 604. If the decedent leaves a will intended to Safe keeping 1 Opinions of the Attorneys General, vol. vii. p. 274. of will. Extent of jurisdiction. Force of local law. flicting claims. operate in the United States, it is the right of the consular officer and his duty, if the circumstances require it, that is, in the absence of adult heirs on the spot, to see to the safe keeping of the will, and its transmission to the parties entitled. 605. As to the extent of the country to which the consular officer's faculty of superintendence reaches in matters of succession, that of course depends primarily on the instructions which he receives from the Department of State and the tenor of his exequatur.1 606. The legislative acts of the United States, mentioned in the foregoing part of this chapter, proceed on the assumption that American consular officers in foreign countries will collect and remit the assets of deceased Americans. Their authority to do this will depend, of course, on the law of the foreign country; if permitted by that law, and so far as permitted, the consul may do it, but not otherwise, nor further, unless allowed by treaty. And so it is with respect to foreign consuls in the States of the Union. Litigated ques607. It seems very clear, that if any contentious tions and con- question arises, as if there be debts due to the estate of the decedent, or conflicting claims upon it, there can be no settlement of the estate by the consul; it can be administered only by due appointment of the local authority, Cases involving no dispute. Treaty of 608. But if there be no litigious matter involved, or if a traveller or other transient person die with personal effects in hand, the consul may well take possession of the same for transmission to the decedent's country. 609. The true relations of the question are suffi1 Opinions of the Attorneys General. ciently illustrated by the tenor of an old article of a treaty between England and Spain, repeated by the treaty of Utrecht; according to which it is stipulated that the respective foreign consuls may inventory the effects of a deceased countryman, and remit them, without intervention of any local tribunal.1 610. The difficulty of complying with this stipu- Spanish law of lation soon became apparent in Spain; in consequence of which the law of November 20, 1724, was passed, providing that the local authority shall make duplicate inventory, and shall hear and adjudge all contested matters.2 November 20, 1724. 611. The same difficulty must of course have ex- Discussion be isted in England. Consuls, in one country or another, tween England and Spain. raised the question from time to time, until, in 1839 and 1840, by undergoing almost simultaneous discussion in Madrid and in London, by the claim of a British consul in Spain to exercise complete jurisdiction in the matter, which the Spanish government refused; and the claim of a Spanish consul in England, which the British government refused-it was at length settled, to the effect, that, notwithstanding the treaty, the consular right on both sides must be limited to the inventory of the effects found in the dwelling of the deceased, subject always to the intervention of the local authorities, in case of any contested right on the part of third persons.3 612. But the general rule undoubtedly in all the General rule. countries of Christendom is, that the local authority has power to take the inventory if it will, the functions of the consular officer being then limited to 1 Miltitz des Consulats á l'Étranger, partie ii. pp. 408, 414, 425. Novisima Recopiliacion, lib. vi. tit. 13, 1. 4. 3 Requelme, Derecho Internacional, tome i. p. 422. in the United the right of assisting in behalf of the absent legal representatives of the deceased.1 Authority of 613. Such, and such only, except where special foreign consuls stipulations of treaty intervene to change the rule, is the admitted authority of foreign consuls as to questions of questions of succession in the several States of the Union.2 States as to succession. 1 Santos, Traitê du Cousulat, tome i. p. 21; tome ii. note 52. 2 De Clercq et de Vallat, Guide des Consulats, p. 686; Opinions of the Attorneys General. CHAPTER XXIX. DUTIES OF CONSULAR OFFICERS IN RESPECT TO THE PASSENGER ACT. 1855. 614. It is made the duty of the Secretary of State, Act of March 3, by the second paragraph of the eighteenth section of the act approved March 3, 1855, to give notice, in the ports of Europe and elsewhere, of the provisions of that act to regulate the carriage of passengers in steamships and other vessels.1 passenger. 615. The special attention of United States consular officers is called to this act, and also to the instructions which have been issued by the Treasury Department in reference to it. It will be observed Space to be althat, whilst the law prescribes certain spaces of clear lowed to each superficial feet of deck to each passenger, (other than cabin passengers,) it moreover fixes a maximum, ir- Number of pasrespective of such spaces, by restricting the number sengers reof passengers allowed to be carried in any such vessel to the proportion of one to every two tons of the vessel's tonnage measurement, excluding children under the age of one year in the computation, and Computation in computing two children over one and under eight regard to chilyears of age as one passenger. It follows, that though a vessel might afford clear spaces of the dimensions indicated for a greater number of passen 1Statutes at Large, vol. x. p. 715; Johnson and Reddall's Manual, Passengers and Passenger Ships. General Regulations of the Treasury Department. stricted. dren. |