r m ^\^ ^.h^Y\]ov^^ O^tAM^m'^WM tf \y \\l P\}1d U ' CKs^cv-l4^ t/v-^r"2>^^7X..— ^ / .^Icw/* — 1_^ ' ^^<^ ^ 1 CONSULAR CASES AND OPINIONS FROM THE DECISIONS OF THE ENGLISH AND AMERICAN COURTS AND THE OPINIONS OF THE ATTORNEYS GENERAL BY ELLERY C. STOWELL Docteur en droit (Paris) Graduate of the Ecole Libre des Sciences Politiques Secretary of the College of the Political Sciences, Washington, D.C. JOHN BYRNE & CO. 1322 F St., N.W. WASHINGTON, D. C. 1909 1 \ I COPYRIGHT, 1909 | BY ELLEEY C. STOWELL n l-X hC55'd MON CHER MAITRE M. LOUIS RENAULT PREFACE This book aims to furnish a convenient collection of the British and American cases and opinions relating to consuls. A few im- portant cases have been given in full. In general, however, only the opinion or an extract relating to consuls is given. In certain in- stances where the case appeared of little importance or was of great length, a brief summary enclosed in parenthesis has been made. All extracts are clearly indicated. The Opinions of the Attorneys General relating to consular af- fairs have been added because of their judicial nature and the con- venience of having them in one volume. Few students and lawyers have access to the twenty odd volumes which contain the opinions published since the office was established. Another reason for in- eluding these opinions or decisions of the head of the Department of Justice was to reproduce the very remarkable opinions of Caleb Gushing, He understood the real nature of the consular office and fifty years of study and experience have made it possible to add but J little to what he wrote. If this collection can make his opinions and conceptions of the consular office more widely known and appreciated, it will be justification enough for the publication. The indexes to the Revised Statutes and Statutes at Large are taken from the Index Analysis of the Federal Statutes of Scott and V:^ Beaman and the Consolidated Index of Federal Statutes, so as to ^ gather in a small compass what those ponderous volumes contain about ^ consuls. The Consolidated Index has not been distributed and only a few copies are in existence. Those who wish to make a study of any section of the statutes are referred to The Federal Statutes Annotated and to the tables of repeals and amendments contained in Scott and Beaman 's Index. In the compendium at the end an attempt has been made to give extracts and references in such a manner as to make the important points in the cases and opinions stand out. To this end the classifica- tion, already explained in Le Consul * has, with some slight modifica- tions, been followed. Consular Functions as the foundation and object of the consular office and the reason for its existence come first. The Consul 's Func- *Le Consul (Pedone), Paris, 1909, vii PREFACE tions are themselves classified according as the consul's reason for act- ing is primarily the direct interest of a citizen or the general interest of the sending state, and this latter division is again divided into Representative. Administrative, and Judicial Functions. Consular Imraimities, making possible the discharge of the con- sular office -within the receiving state, follow logically. The Organization of the service enables the government of the sending state to choose, retain, and direct its agents. Certain Legislation on the part of the sending state is necessary to give adequate protection to consuls and compel its nationals to comply with the regulations which the consul is directed to carry out. Consuls must receive the consent of the receiving state before entering upon the discharge of their duties, and before they can be entitled to the inmiunities granted by treaties and international law. It only remains to examine the Termination of consular establish- ments and the consular office to be in a position to understand the true nature of the consul and to give a Definition. Such is in outline the system of classification of the compendium. The index will make it possible to find the references to any particular question without understanding the logic of the classification. The translation of the Regulations Adopted by the Institute of International Law has been made for those who do not read French. Every effort has been made to adhere as closely as possible to the original except that here, as elsewhere, the terms Receiving State and Sending State have been employed because of the great convenience of so doing. The term Consular Agent to designate merchant consuls (Consules Electi) is gaining general acceptance. Perhaps Consuls of Career (Consules Missi) might be designated as Despatched Consuls where spoken of in contradistinction to Consular Agents. A further beneficial distinction might be made by designating as Immunities those rights and exemptions which the receiving state grants consuls of the sending state, and Privileges any privileged treatment, favor or exemption which the sending state accords its own consuls. An effort has been made to exclude all cases and opinions refer- ring to the exercise of exterritorial jurisdiction, because this branch of the consular service of the different countries has been more carefully studied, and also because of its peculiar nature. It may be a ques- tion whether consular exterritorial jurisdiction is destined to dis- appear entirely. The indications at present, however, seem to point to its abolition in all states of any importance. \Vhen referring to the cases contained in this volume it must be borne in mind that any decision may have been reversed in some later case or rendered inapplicable by legislative action, viii PREFACE No distinction between the obiter dicta and the holdings of the courts has been attempted, but a list of citations has been added which will aid in reaching a conclusion as to what was really held, where the ease presents any difficulties of interpretation. I would express my thanks and my great indebtedness to Mr. Herbert Putnam, Librarian of Congress, and to Mr, Middleton G-. Beaman, Law Librarian, for the facilities which they have so kindly placed at my disposal. WASHINGTON, D. C, JULY, 1909. IX TABLE OF CONTENTS LIST OF ABBREVIATIONS xii ALPHABETICAL LIST OF CASES ' xv CHEONOLOGICAL LIST OF CASES xxii TABLE OF JUDGES WITH CASES xxix TABLE OF THE OPINIONS OF THE ATTOENEYS GENERAL xxxv REGULATIONS OF THE INSTITUTE OF INTERNATIONAL LAW RELATING TO CONSULAR IMMUNITIES 1 CASES RELATING TO CONSULS (alphabetically arranged) 6 OPINIONS OF THE ATTORNEYS GENERAL RELATING TO CON- SULS (clironologically arranged) 463 ANALYSIS OF TREATIES 653 INDEX ANALYSIS OF THE FEDERAL STATUTES RELATING TO CONSULS 666 CONSOLIDATED INDEX TO UNITED STATES STATUTES AT LARGE 687 COMPENDIUM OF CASES AND OPINIONS 721 TABLE OF CASES CITED 781 INDEX 783 LIST OF ABBREVIATIONS Abb. Adm. Add. Allen Am. St. Rep. Aspin. Atl. Atty. Gen. Barb. Bay Bee Ben. Binn. Blatchf. Blatchf. & H. Burr. Cal. Car. & P. Crabbe Cranch a. CI. Curt. Curt. EccL Ball. De C, M. & G. Dod. Dutch. Eaat East. Edwards ling. Rep. Esp. Fed. Cases Fed. Rep. Ga. Gilp. Green H. & M. Hag. Adm. Abbott's Admiralty, United States District Court. Addams, Ecclesiastical Courts. Allen, Massachusetts Supreme Court. American State Reports. Maritime Cases, New Series (Aspinall) Admiralty. Atlantic Reporter. Opinions of the Attorneys General. Barbour, New York Supreme Court. Bay, South Carolina, "Various Courts. Bee's Admiralty, United States District Courts. Benedict, United States District Court. Binney, Pennsylvania Supreme Court. Blatchford, United States Circuit Court. Blatchf ord and Rowland's Admiralty, United States Dis- trict Court. Burrow, King's Bench 178-182. California Supreme Court. Carrington and Payne's Reports. Crabbe, United States District Court. Cranch, United States Supreme Court. Court of Claims, United States. Curtis, United States Circuit Court. Curteis Ecclesiastical, Dallas, United States Supreme Court and Circuit Courts, and Courts of Pennsylvania. De Grex, McNaughten & Gordon. Dodson, Admiralty. Dutcher, New Jersey Supreme Court. East, Bang's Bench. Eastern Reporter. Edwards, Admiralty. English Reports, Full Reprint. Espinasso's Reports. Federal Cases. Federal Reporter. Georgia Supreme Court. Gilpin, United States District Court. Green (.T. S.), New Jersey Supreme Court. Hemmming and Miller. Haggard, Admiralty. Xll LIST OF ABBREVIATIONS HUl Holmes How. Johns. L. Ed. L. J. Adm. L. E. P. C. L. E. P. & D. L. T. N. S. La. An. Law Eep. Leg. Int. Litt. Low. Lush. McAllister Mas. Mass. Mau. & Sel. Misc. Moore Moore Int. Arb. Hill's Eeports, New York. Holmes, United States Circuit Court. Howard, United States Supreme Court. Johnson, New York Supreme Court and Court of Errors. Layers' Co-operative Edition of United States Supreme Court Eeports. Law Journal, Admiralty. Law Eeports: Privy Council Appeal Cases. Law Eeports, Probate and Divorce Cases. Law Times Eeports, New Series, All the Courts. Louisiana Annual, Louisiana Supreme Court. Law Eeporter (Boston). Legal Intelligencer. Littell, Kentucky Court of Appeals. Lowell, United States District Court. Lushington, Admiralty. McAllister, United States Circuit Court. Mason, United States Circuit Court. Massachusetts Supreme Court. Maule and Selwyn, King's Bench 214-219. New York Miscellaneous Eeports. Moore's International Law Digest. Moore's International Arbitrations. N. E. N. J. Law. N. W. N. Y. N. Y. Supp. Newb. Nott. & McC. Northeastern Eeporter. New Jersey Supreme Court of Errors and Court of peals. Northwestern Eeporter. New York Court of Appeals Eeports. New York Supplement. Newberry's Admiralty, United States District Courts. Nott and McCord, South Carolina Constitutional Court. Ap- 01c. P. D. Pa. Pac. Paine Pet. Pet. Ad. Phila. Phillim. (2d) Pick. Pr. & Div. Eob. Eob. C. Kob. W. Olcott, United States District Court. Probate Division, Law Eeports. Pennsylvania Supreme Court Eeports. Pacific Eeporter. Paine, United States Circuit Court. Peter's, United States Supreme Court. Peter's Admiralty Decisions, United States District Court. Philadelphia Eeports. Phillimore International Law, 2d Edition. Pickering, Massachusetts Supreme Court. Law Eeports: Probate and Divorce. Eobinson, Louisiana Eeports. Eobinson, C. Admiralty Eeports. Eobinson, W. Admiralty Eeports. Xlll LIST OF xVBBREVIATIONS Ry. & M. S. E. S. & E. Sand. Sawy. So. Sprague Sumn. Sup. Ct. Rep. Super. Ct. Ryan and Moody's Reports. Southeastern Reporter. Sergeant and Rawle's Reports, Pennsylvania. Sandford, New York City Superior Court. Sawyer, United States Circuit and District Courts. Southern Reporter. Sprague 's Decisions, United States District Court. Sumner, United States Circuit Court. Supreme Court Reporter. Superior Court Reports, New York. Taney Taunt. Tex. App. Tex. Civ. App. Taney's Decisions, United States Circuit Court. Taunton's Law Reports, Common Pleas. Texas Court of Appeals Reports. Texas Civil Appeal Reports. U. S. V. S. United States Supreme Court Reports. United States. V. Ves. & Bea. versus or against. Vesey and Beames, Chancery Reports. WaU. Ware Wash. C. C. Whart. Wheat. Wis, Woodb. & M. Wallace, United States Supreme Court. Ware, United States Circuit Court. Washington, United States Circuit Court. Wharton, Pennsylvania Supreme Court. Wheaton's, United States Supreme Court. Wisconsin Supreme Court. Woodbury and Minot, United States Circuit Court. XIV CASES ALPHABETICALLY ARRANGED Adams v. State, 1885 6 Adolph, The, 1835 6 Adolph, The, 1851 6 Adutt, In re, 1893 6 Agincourt, The, 1877 6 Albretcht v. Sussman, 1813 7 Alexandra, The, 1906 7 Alice, The, 1882 7 Alnwick, The, 1904 9 Amalia, The, 1880 9 Anne, The, 1818 11 Anne Cooper, In re, 1855 120 Antelope, The, 1825 19 Arnold v. The United Insurance Company, 1800 19 Aspinwall v. The Queen 's Proctor, 1839 20 Atlantic, The, 1849 22 Aubrey, In re, 1885 26 Aycinena, In the Matter of, 1848 29 Azogue V, United States, 1891 30 Baiz, In re, 1890 33 Baiz V. Malo, 1899 51 Baltica, The, 1855 51 Barber (Trustees of Mrs.), 1835 51 Barbuit 's Case, 1737 52 Becherdass Ambaidass, The, 1871 54 Bee, The, 1804 54 Belgenland, The, 1884 55 Belle Corrunes, The, 1821 68 Benito Estenger, The, 1900 70 Benson v. McMahon, 1887 70 Bernard v. Creene, 1874 70 Betty Cathcart, The, 1799 72 Bird, Ex parte, 1852 72 Bischofeseheim v. Baltzer, 1882 73 Bixby V, Janssen, 1869 73 Blanche v. Rangel (The Nina), 1868 74 Bors V. Preston, 1884 74 Brown v. Landon, 1883 82 Brown v. The Independence, 1836 83 Browne v. Palmer, 1902 83 Brunent v. Taber, 1854 83 Bucker v. Klorkgeter, 1849 83 Burchard, The, 1890 84 Byers v. United States, 1887 84 XV LIST OF CASES Caignet v. Pettit, 1795 84 Caldwell v. Barclay, 17S8 86 Gallon V. Williams, 1871 87 Campbell v. Steamer Uncle Sam, 1856 90 Carolina, The. see Fry v. Cook, 1876 90 Castro V. De Uriarte, 1883 91 Catlett V. Pacific Insurance Company, 1826 98 (Las) Caygas v. Larionda's Syndic, 1816 98 Charlotte. The, 1804 98 Chester v. Benner, 1871 98 Church V. Hubbart, 1804 99 Clarke v. Cretico, 1808 105 Coffin V. Weld, 1871 107 Cohens v. Virginia, 1821 108 Colebrook v. Jones, 1751 112 Commonwealth v. Di Silvestro, 1906 112 Commonwealth v. Kosloflf, 1816 112 Conserva, The, 1889 119 Cooke V. WUby, 1884 120 Cooper, In re Anne, 1855 120 Coppell V. Hall, 1868 120 Coriolanus, The, 1839 120 Courtney, The, 1810 121 Cruttenden v. Bourbell, 1808 121 Dainese v. Hale, 1875 122 Dallemagne v. Moisan, 1904 123 Daly, In re, 1841 128 Darling, In re, 1845 128 Davenport, In re, 1904 129 Davis V. Leslie, 1848 129 Davis V. The Burchard, 1890 84 Davis V. Packard, 1832 130 Davis V. Packard, 1833 133 Davy to Maltwood, 1841 137 De Give v. Grand Kapida Furniture Company, 1894 139 De Lema v. Haldimand, 1824 139 Dent V. Smith, 1869 139 Dillon, In re, 1854 139 Divina Pastora, The, 1819 148 Dree Gebroeders, The, v. Vandyk, 1802 148 Dtifour, Succession of, 1855 148 Dumas, Interdiction of Joseph, 1880 149 Durand v. Halbach, 1835 149 Eady, In re, 1838 150 Elizabeth, The, 1862 151 Elwin Kreplin, The, 1870 151 Elwine Kreplin, The, 1872 152 Eudora, The, 1901 152 Evangelistria, The, 1876 154 Falcon, The, 1805 154 FaUs of Keltie, The, 1902 154 Farez, In re Francois, 1870 155 jcvi LIST OP CASES Fanner, Succession of, 1862 155 Fattosini, Matter of, 1900 155 Fawcus, In the Goods of, 1884 158 Ferrers v. Bosel, 1821 159 Ferris v. The Public Administrator, 1855 160 Flad Oyen, The, 1799 160 Flynn v. Stoughton, 1848 161 Foel V. The Salomoni, 1886 161 Forsoket, The, 1801 457 Foster v. Davis, 1822 162 Francois Farez, In re, 1870 164 Franz and Elize, The, 1861 164 Froment v, Duclos, 1887 164 Fry V. Cook, 1876 164 Gardner v, Bibbins, 1833 164 General McPherson, The, 1900 165 Gernon v. Cochran, 1804 165 Gittings V. Crawford, 1838 165 Glass V. The Sloop Betsey, 1794 172 Goddard v. Luby, 1795 173 Goldsborough v. United States, 1889 173 Golubchick, The, 1840 173 Gould V. Staples, 1881 178 Graham v, Hoskins, 1845 179 Graham v. Stucken, 1857 179 Graves v. The W. F. Babcock, 1897 181 Griffin v. Dominguez, 1853 182 Grin, In re, 1901 183 Grin v. Shine, 1902 183 Haggitt V. Iniff, 1854 184 Hall V. Young, 1825 184 Harrison v. Vose, 1849 185 Hathaway v. Jones, 1863 186 Havana, The, 1858 186 Hayes v. J. J. Wickwire, 1870 186 Heathfield v. Chilton, 1767 187 Herman v. Herman, 1825 188 Herres, In re, 1887 188 Herzogin Marie, The, 1861 188 Heynsohn v. Merriman, 1880 189 Hill v. The Sachem, 1894 189 Hinde, Succession of, 1861 : 190 Hindsgaul v. The Lyman D. Foster, 1898 190 Hitz, Ex parte, 1884 190 Hollander v. Baiz, 1890 190 Hope, The, 1813 190 Hutchinson, Ex parte, 1848 191 Hutchinson v. Coombs, 1825 192 lasigi. In re, 1897 192 lasigi V. Van de Carr, 1897 197 Indian Chief, The, 1800 197 Infanta, The, 1848 198 xvii LIST OF CASES Invincihle, The, 1816 199 Jenks V. Cox. 1872 199 Jones V. Le Tombe, 1798 199 Jordan v. Williams, 1851 201 Josephine, The, ISOl 213 Kaine, In re, 1852 213 Kamnierhevie v. Rosenkrants, 1822 214 Kelly V. The Topsy, 1890 214 Kenncy v. Blake, 1903 214 Kent V. Burgess, 1841 214 Kessler v. Best, 1903 214 Kestor. The, 1901 216 Kidderlin v. Meyer, 1838 216 Koppel V. Heinrichs, 1847 216 La Blache v. Rangel, The, 1867 219 Lady Furness, The, 1897 219 Lamb v. Briard, 1848 219 Lanfear v. Ritchie, 1854 224 Las Caygas v. Larionda 's Syndic, 1816 224 Leavitt v. United States, 1888 224 Leon XIIT, The, 1883 229 Leveux v. Berkeley, 1844 230 Le\7 V. Burley, 1836 230 Lewis V. Jewhurst, 1866 235 Lilian M. Vipiis, The, 1879 235 Lilla, The, 1862 235 Lobrasciano 's Estate, In re, 1902 235 Logiorato 's Estate, In re, 1901 244 London Packet, The, 1815 247 Long V. Powell, 1904 247 Loring v. Thorndike, 1862 247 Lorway v. Lousada, 1866 252 LuBcom V. Osgood, 1 844 252 Lynch V. Crowder, 1849 5i52 McCandless v. Yorkshire, 1897 252 M 'Donough v. Dannory, 1796 253 McKay v. Garcia, 1873 254 Madonna d' Idra, 1811 255 Magee, In re, 1885 255 Magee v. The Moss, 1831 255 Mahin v. United States, 1905 255 Mahoney v. United States, 1869 255 Mali V. Keeper of the Common Jail 255 Mannhardt v. Soderstrom, 1806 256 Marie, The, 1892 259 Marine Wharf v. Parsons, 1897 259 Marshall v. Critico, 1808 281 Marston v. United States, 1896 281 Mary, The, 1828 281 Mary Ford, The, 1796 281 Matheson v. Campbell, 1895 282 Mathews v. United States, 1887 282 xviii LIST OF CASES Matthews v. Offley, 1837 282 Miller v. Van Loben Sells, 1885 283 Moore v. Miller, 1892 283 Morris v. Cornell, 1843 283 Mosby V. United States, 1888 284 Motherwell v. United States, 1901 284 Mott V. Smith, 1860 284 Neck, The, 1905 284 New City, The, 1891 284 Newman, Ex parte, 1871 285 Niboyet v. Niboyet, 1878 285 Nina, The, 1867 285 Norberg v. Hillgreu, 1846 290 Octavie, The, 1863 292 Oester Ems, The, see Two Friends, 1799 376 Ornelas v. Euiz, 1895 292 One Hundred and Ninety-four Shawls, 1848 292 Orr V. The Achsah, 1849 293 Oscanyan v. Arms Company, 1880 293 Otterbourg 's Case, 1869 294 Parsons v. Hunter, 1836 294 Patch V. Marshall, 1853 294 Patterson v. Bark Eudora, 1903 296 Paul Eevere, The, 1882 304 Peterson 's Will, In re, 1906 308 Pioneer, The, 1863 310 Pool V. Welsh, 1830 310 Pooley V, Luce, 1896 310 Popping V. The Sirius, 1891 315 Potter V, Ocean Insurance Company, 1837 315 President, The, 1804 316 Eabasse, Succession of, 1895 316 Redmond v. Smith, 1899 318 Reliance, The, 1848 318 Rice V. Ames, 1900 318 Riley v. The Obeli Mitchell, 1861 319 Robert Ritson, The, 1871 319 Roberts v. Eddington, 1801 319 Robson V. The Huntress, 1851 320 Rogers v. Amado, 1847 320 Roth, In re, 1883 320 Rowe V. The Brig, 1818 321 Sachem, The, 1894 321 Sagory v. Wissman, 1868 321 St. John V. Croel, 1843 321 St. Luke 's Hospital v. Barclay, 1855 322 St. Oloff, The, see Weiberg v. St. Oloff Salomoni, The, 1886 323 Sartori v. Hamilton, 1832 323 Saunders v. The Victoria, 1854 325 Savage v. Birckhead, 1838 326 Scanlan v, Wright, 1833 326 xix LIST OF CASES Schunior v. KusscU, 1892 328 Scott V. Hobe, 1900 329 Seidel v. Peschkaw, 1S59 330 ] Semmens v. Walters, 1SS2 332 Sharpe and Sharpe v. Crispin, 1869 333 Shorey v. Kennell, 1858 333 ' Sidy Hamet Benamor Beggia, (Case of), 1822 333 i Simpson v. Foge, 1862 333 Sirius, The. 1891 334 Smith V. Treat, 1845 334 ; Snow V. Wope, 1855 334 | Sorcnsen v. The Queen, 1857 334 ! Spanish Consul 's Petition, 1867 334 Stahel V. United States, 1891 335 State V. De La Foret, 1820 337 Stein V, Bowman, 1839 349 Stein V. Stein 's Curator, 1836 351 Stewart v. Linton, 1902 351 Stiff V. Nugent, 1843 354 Sturgis V. Slacum, 1836 354 Sugenheimer, In re, 1899 359 i Tartaglio, In re, 1895 360 ; Telefsen v. Fee, 1897 362 j Thorovich v, Franz Josef, 1907 269 ' Thompson v. The Nanny, 1805 369 ' Thompson 's Succession, 1854 369 i Tingle v. Tucker, 1849 369 i Toler y. White, 1834 373 Topsy, The, 1890 374 j Townshend v. The Mina, 1868 374 j Triquet v. Bath, 1761 375 : Troop, The, 1902 376 ■ Two Friends, The, 1799 376 \ United States v. Badeau, 1887 376 ' United States v. Bee, 1893 379 United States v. Eaton, 1898 379 United States v. Judge Lawrence, 1795 396 United States v. Kelly, 1901 407 | United States v. Lucinario, 1906 410 j United States v. Lunt, 1855 410 United States v. Mitchell, 1886 410 United States v. Mosby, 1889 410 United States v. Motherwell, 1900 410 United States v. Ortega, 1826 411 ^ United States v. Owen, 1891 415 ' United States v. Ravara, 1793 415 j United States v. Trumbull, 1891 418 Valarino v. Thompson, ] 853 418 Van Hoven, Ex parte Henry, 1876 423 Vergil, In re, 1857 423 Villeneuve v. Barrion, 1795 86 Viveaah v. Becker, 1814 423 XX LIST OF CASES Von Thodorovich v. Franz Josef Beneficial Ass'n., 1907 432 Vrow Anna Catharina, The, 1803 436 Waitshoair v. The Craigend, 1890 436 Waldron v. Coombe, 1810 436 Walter D. Wallet, The, 1895 439 Wedderburn, Succession of, 1841 440 Weiberg v. The St. Oloff, 1790 440 Welhaven, The, 1892 446 Welsh V. Hill, 1807 446 W. L. White, The, 1885 447 Wilbor V. United States, 1902 447 Wilcox V, Luco, 1896 447 Wilcox V. Luco, 1897 447 Wildenhus's Case, 1886 447 Wildenhus, In re, 1886 457 Wilhelm Frederick, The, 1823 457 Willendson v. Forsoket, 1801 457 William Harris, The, 1837 458 Williams v. The Welhaven, 1892 459 Wilson V. The Mary, 1828 459 Wope V. Hemenway, 1855 459 Wyman, In re, 1906 460 XXI CHRONOLOGICAL LIST OF CASES Date Country Name of Case Page 1737 Great Britain Barbuit 's Case 52 1751 Great Britain Colebrook v. Jones 112 1761 Great Britain Triquet v. Bath 375 1767 Great Britain Heathfield v. Chilton 187 1788 United States Caldwell v. Barclay 86 1790 United States Weiberg v. The St, Oloff 440 1793 United States United States v, Ravara 415 1794 United States Glass v. The Betsey 172 1795 United States Caignet v. Pettit 84 1795 United States Goddard v. Luby 173 1795 United States United States v. Judge Lawrence 396 1795 United States Villeneuvre v. Barrion 86 1796 United States M'Donough v. Dannery 253 1796 United States Mary Ford, The 281 1798 United States Jones v. Le Tombe 199 1799 Great Britain Betty Cathcart, The 72 1799 Great Britain Flad Oyen, The 160 1799 Great Britain Two Friends 376 1800 United States Arnold v. The United Insurance Company . . 19 1800 Great Britain Indian Chief, The 197 1801 Great Britain Josephine, The 213 1801 Great Britain Roberts v, Eddington 319 1801 United States Willendson v. The Forsoket 457 1802 Great Britain Dree Gebroeders, The, v. Vandyk 148 1803 Great Britain Vrow Anna Catharina, The 436 1804 United States Bee, The 54 1804 Great Britain Charlotte, The 98 1804 United States Church v, Hubbart 99 1804 United States Gernon v, Cochran 165 1804 Great Britain President, The 316 1805 Great Britain Falcon, The 154 1805 United States Thompson v. The Nanny 369 1806 United States Mannbardt v. Soderstrom 256 1807 United States Welsh v. Hill 446 1808 Great Britain Clark v. Cretico 105 1808 Great Britain Cruttenden v. BourbcU 121 1808 Great Britain Marshall v. Cretico 281 1810 Great Britain Courtney, The 121 1810 Great Britain Waldron v. Coombe 436 1811 Great Britain Madonna d' Idra 255 1813 Great Britain Albrecht v. Sussman 7 1813 Great Britain Hope, The 190 1814 Great Britain Viveash v. Becker 423 xxii CHRONOLOGICAL LIST Date Country Name of Case Page 1815 United States London Packet, The 247 1816 United States (Las) Caygas v. Lorionda's Syndic 98 1816 United States Commonwealth v. Kosloff 112 1816 United States Invincible, The 199 1818 United States Anne, The 11 1818 United States Rowe v. The Brig 321 1819 United States Divina Pastoria, The 148 1820 United States State v. De La Foret 337 1821 United States Bello Corrunes, The 68 1821 United States Cohens v. Virginia 108 1821 United States Ferrers v. Bosel 159 1822 United States Foster v. Davis 162 1822 Great Britain Kammerhevie v. Rosenkrants 214 1822 Great Britain Sidy Hamet Benamor Beggia, (Case of) ... 333 1823 Great Britain Wilhelm Frederick, The 457 1824 Great Britain De Lama v. Haldimand 139 1825 United States Antelope, The 19 1825 United States Hall v. Young 184 1825 United States Herman v. Herman 188 1825 United States Hutchinson v. Coombs 192 1826 United States Catlett v. Pacific Insurance Company 98 1826 United States. United States v. Ortega 411 1828 United States ; .Wilson v. The Mary 459 1830 United States Pool v. Welsh 310 1831 United States Magee v. The Moss 255 1832 United States Davis v. Packard 130 1832 United States Sartori v. Hamilton 323 1833 United States Davis v, Packard 133 1833 United States Gardner v. Bibbins 164 1833 United States Scanlan v. Wright 326 1834 United States Toler v. White 373 1835 Great Britain Adolph, The 6 1835 Great Britain Barber, (Trustees of Mrs.) 51 1835 United States Durand v. Halbach 149 1836 United States Brown v. The Independence 83 1836 United States Levy v. Burley 230 1836 United States Parsons v. Hunter 294 1836 United States Stein v. Stein 's Curator 351 1836 United States Sturgis v. Slacum 354 1837 United States Matthews v. Offley 282 1837 United States Potter v. Ocean Insurance Company 315 1837 United States William Harris, The 458 1838 Great Britain Eady, In re 150 1838 United States Gittings v. Crawford 165 1838 United States Kidderlin v. Meyer 216 1838 United States Savage v. Birckhead 326 1839 United States Aspinwell v. The Queen 's Proctor 20 1839 United States Coriolanus, The 120 1839 United States Stein v. Bowman 349 1840 Great Britain Golubchick, The 173 1841 Great Britain Daly, In re, 128 xxiii CHRONOLOGICAL LIST Date Country Name of Case Page 1841 Great Britain Davy to Maltwood 137 1841 Great Britain Kent v. Burgess 214 1841 United States Wedderburn, Succession of 440 1843 United States Morris v. Cornell 283 1843 United States Stiff v. Nugent 354 1843 United States St. John v. Croel 321 1844 Great Britain Leveux v. Berkeley 230 1844 United States Luscom v. Osgood 252 1845 Great Britain Darling, In re 128 1845 United States Graham v. Hoskins 179 1845 United States Smith v. Treat 334 1846 United States Norberg v. Hillgreu 290 1847 United States Koppel v. Heinrichs 216 1847 United States Eogers v. Amado 320 1848 United States Aycinena, In the Matter of 29 1848 United States Davis v. Leslie 129 1848 United States Flynn v. Stoughton 161 1848 Great Britain Hutchinson, Ex parte 191 1848 United States Infanta, The 198 1848 United States Lamb v. Briard 219 1848 United States One Hundred and Ninety-four Shawls .... 292 1849 United States Atlantic, The 22 1849 United States Bucker v, Klorkgeter 83 1849 United States Harrison v. Vose 185 1849 United States Lynch v. Crowder 252 1849 United States Orr v. The Achsah 293 1849 United States Tingle v. Tucker 369 1851 United States Adolph, The 6 1851 United States Jordan v. Williams 201 1851 United States Robson v. The Huntress 320 1852 Great Britain Bird, Ex parte 72 1852 United States Kaine, In re 213 1853 United States Griffin v. Dominguez 182 1853 United States Patch v. Marshall 294 1853 United States Valarino v. Thompson 418 1854 United States Bninent v, Taber 83 1854 United States Dillon, In re 139 1854 United States Haggitt v, Iniff 184 18.54 United States Lanfear v, Ritchie 224 1854 United States Saunders v. The Victoria 325 1855 Great Britain Baltica, The 51 1855 Great Britain Cooper, In re Anne 120 1855 Great Britain Dufour, Succession of 148 1855 United States Ferrie v. The Public Administrator 160 1855 United States Saint Luke's Hospital v. Barclay 322 1855 United States Snow v, Wope 334 18.55 United States United States v. Lunt 410 18.55 United States Wope v. Hemenway 459 1856 United States Campbell v. Steamer Uncle Sam 90 1857 United States Graham v. Stucken 179 1857 Great Britain Sorensen v. The Queen 334 rxiv CHRONOLOGICAL LIST Date Country Name of Case Page 1857 Arbitration Vergil, In re 423 1858 United States Havana, The 186 1858 United States Shorey v. Eennell 333 1859 United States Seidel v. Pescbkaw 330 1860 United States Mott v. Smith 280 1861 Great Britain Franz and Elize, The 164 1861 Great Britain Herzogin Marie, The 188 1861 United States Hinde, Succession of 190 1861 United States Eiley v. The Obeli Mitchell 319 1862 United States Elizabeth, The 151 1862 United States Farmer, Succession of 155 1862 United States Lilla, The 235 1862 United States Loring v. Thorndike 247 1862 Great Britain Simpson v. Fogo 333 1863 United States Hathaway v. Jones 186 1863 Great Britain Octavie, The 292 1863 United States Pioneer, The 310 1866 Great Britain Lewis v. Jewhurst 235 1866 United States Lorway v. Lousada 252 1867 Great Britain Blanche v. Kangel (The Nina) 74 1867 Great Britain Nina, The 285 1867 United States Spanish Consul 's Petition 334 1868 United States .Coppell v. Hall 120 1868 United States Sagory v. Wissman 321 1868 United States Townshend v. The Mina 374 1869 United States Bixby v. Janssen 73 1869 Great Britain Dent v. Smith 139 1869 United States Mahoney v. United States 255 1869 United States Otterbourg's Case 294 1869 Great Britain Sharpe and Sharpe v. Crispin 333 1870 United States Elwin Kreplin, The 151 1870 United States Farez, In re 155 1870 United States Hayes v. J. J. Wickwire 186 1871 United States Becherdass Ambaidass, The 54 1871 United States Gallon v. Williams 87 1871 United States Chester v. Benner 98 1871 United States Coffin v. Weld 107 1871 United States Newman, Ex parte 285 1871 United States Robert Eitson, The 319 1872 United States Elwine Kreplin, The 152 1872 United States Jenks v. Cox 199 1873 United States McKay v. Garcia 254 1874 United States Bernard v. Greene 70 1875 United States Dainese v. Hale 122 1876 Great Britain Evangelistris, The 154 1876 United States Fry v. Cook 164 1876 United States Van Hoven, Ex parte Henry 423 1877 Great Britain Agincourt, The 6 1878 Great Britain Niboyet v. Niboyet 285 1879 United States Lilian M. Vigus, The 235 1880 United States Amalia, The 9 XXV CHRONOLOGICAL LIST Date Country Name of Case Page 1880 United States Dumas, Interdiction of Joseph 149 1880 United States Heynsohn v. Merriam 189 1880 United States Oscanyan v. Arms Co 293 1881 United States Gould v. Staples 178 1882 United States Alice, The 7 1882 United States Bischoffscheim v. Baltzer 73 1882 United States Paul Revere, The 304 1882 United States Semmens v. Walters 332 1883 United States Brown v. Landon 82 1883 United States Castro v, De Uriate 91 1883 Great Britain Leon XIII, The 229 1883 United States Roth, In re 320 1884 United States Belgenland, The 55 1884 United States Bors v. Preston 74 1884 Great Britain Cooke v. Wilby 120 1884 Great Britain Fawcus, In the Goods of 158 1884 United States Hitz, Ex parte 190 1885 United States Adams v. State 6 1885 United States Aubrey, In re 26 1885 Great Britain Magee, In re 255 1885 United States Miller v. Van Loben Sells 283 1885 United States W. L. White, The 447 1886 United States Salomoni, The 323 1886 United States United States v. Mitchell 410 1886 United States Wildenhus 's Case 447 1887 United States Benson v, McMahon 70 1887 United States Byers v. United States 84 1887 United States Froment v. Duclos 164 1887 United States Herres, In re 188 1887 United States Mathews v. United States 282 1887 United States United States v. Badeau 376 1888 United States Leavitt v. United States 224 1888 United States Mosby v. United States 284 1889 United States Conserva, The 119 1889 United States Goldsborough v. United States 173 1889 United States United States v. Mosby 410 1890 United States Baiz, In re 33 1890 United States Burchard, The 84 1890 United States Hollander v. Baiz 190 1890 United States Topsy, The 374 1890 United States Waitshoair v. The Craigend 436 1891 United States Azogue v. United States 30 1891 United States New City, The 284 1891 United States Sirius, The 334 1891 United States Stahel v. United States 335 1891 United States United States v. Owen 415 1891 United Staffs United States v. Trumbull 418 1892 United States Marie, The 259 1892 United States Moore v. Miller 283 1892 United States Schunior v. Russell 328 1892 United States Welhaven, The 446 XXvi CHRONOLOGICAL LIST Date Country Name of Case Page 1893 United States Adutt, In re 6 1893 United States United States v. Bee 379 1894 United States De Give v. Grand Eapids Furniture Co. . . . 139 1894 United States Hill v. The Sachem 189 1895 United States Matheson v. Campbell 282 1895 United States Ornelas v. Euiz 292 1895 United States Eabasse, Succession of 316 1895 United States Tartaglio, In re 360 1895 United States Walter D. Wallet, The 439 1896 United States Marston v. United States 281 1896 United States Pooley v. Lueo 310 1896 United States Wilcox v. Lueo 447 1897 United States Graves v. The W. F. Babcock 181 1897 United States lasigi, In re 192 1897 United States lasigi v. Van de Carr .' 197 1897 United States Lady Furness, The 219 1897 United States McCandless v. Yorkshire 252 1897 United States Marine Wharf v. Parsons 259 1897 United States Telefsen v. Fee 362 1897 United States Wilcox v. Lueo 447 1898 United States United States v. Eaton 379 1898 United States Hindsgaul v. The Lyman D. Foster 190 1899 United States .Baiz v. Malo 51 1899 United States Redmond v. Smith 318 1899 United States Sugenheimer, In re 359 1900 United States Benito Estenger, The 70 1900 United States Fattosini, Matter of 155 1900 United States General McPherson, The 165 1900 United States Rice v. Ames 318 1900 United States Scott v. Hobe 329 1900 United States United States v. Motherwell 410 1901 United States Eudora, The 152 1901 United States Grin, In re 183 1901 United States Kestor, The 216 1901 United States Logiorato 's Estate, In re 244 1901 United States Motherwell v. United States 284 1901 United States United States v. Kelly 407 1902 United States Browne v. Palmer 83 1902 United States Falls of Keltic, The 154 1902 United States Grin v. Shine 183 1902 United States Lobrasciano 's Estate, In re 235 1902 United States Steward v. Linton 351 1902 United States Troop, The 376 1902 United States Wilbor v. United States 447 1903 United States Kenney v. Blake 214 1903 United States Kessler v. Best 214 1903 United States Patterson v. Bark Eudora 296 1904 United States Alnwick, The 9 1904 United States Dallemague v. Moisan 123 1904 United States Davenport, In re 129 1904 United States Long v, Powell 247 xxvii CHRONOLOGICAL LIST Date Country Name of Case Page 1905 United States Mabin v. United States 255 1905 United States Neck, The 284 1906 United States Commonwealth v. Di Silvestro 112 1906 United States Alexandra, The 7 1906 United States Peterson 's Will, In re 308 1906 United States United States v. Lueinario 410 1906 United States WjTnan, In re 460 1907 United States Von Thodorovich v. Franz Josef Ben. Ass'n 432 I xxviii i JUDGES WITH LIST OF CASES DECIDED Judges Cases Page Abbott De Lema v. Haldimand 139 Adams Alnwick, The 9 Archbold Van Thodorovich v. Franz joset Ben. Ass'n. 432 Bee Gernon v. Cochran 165 Thompson v. The Nanny 369 Bellinger United States v. Kelly 407 Benedict Conserva, The 119 Bermudez Dumas, Interdiction of Joseph 149 Betts Atlantic, The 22 Bucker v. Klorkgeter 83 Davis V. Leslie 129 Elizabeth, The 151 Gardner v. Bibbins 1G4 Graham v. Hoskins 179 Lamb v. Briard 219 Lynch v. Crowder 252 One Hundred and Ninety-four Shawls .... 292 Eiley v. Obeli Mitchell, The 319 Saint Luke 's Hospital v. Barclay 322 Tingle v. Tucker 369 Billings Try v. Cook 164 Caroline, see Fry v. Cook Blatchf ord Bischoffscheim v. Baltzer 73 Bixby V. Janssen 73 Farez, In re Francois 155 McKay v. Garcia 254 Sagory v. Wissman 321 Spanish Consul's Petition 334 United States v. Mosby 410 Booth Mahin v. United States 255 Bradford Kestor, The 216 Bradley Belgenland, The 55 Dainese v. Hale 122 Brawley Alexandra, The 7 Brett Leon XIII, The 229 Brewer Herres, In re 188 Patterson v. Bark Eudora, The 296 Brown Castro v. De Uriarte 91 Froment v. Duclos 164 Graves v. W. F. Babcock 181 Grin v. Shine 183 Hill V. The Sachem 189 Hollander v. Baiz 190 xxix JUDGES WITH LIST OF CASES DECIDED Judges Cases Page Brown — (Continued) Ifvsigi, In re 192 Infanta, The 198 Leavitt v. United States 224 Paul Revere, The 304 Rice V. Ames 318 Roth, In re 320 Sugenheimer, In re 359 W. L. White, The 44? Bullard Stein v. Stein 's Curator 351 Stiff V. Nugent 354 Cadwalader Hayes v. J. J. Wickwire 186 ToAvnshend v. The Mina 374 Catron Kaine, In re 213 Cave Magee, In re 255 Chitty Cooke v. Wilby 120 Choate Heynsohn v. Merriman 189 Lilian M. Vigus, The 235 Church Davenport, In re 129 Clifford Ne^,^^nan, Ex parte 285 Cobb McCandless v. Yorkshire 252 Cockburn Lewis v. Jewhurst 235 Coxe United States v. Mitchell 410 Cranworth, Lord Bird, Ex parte 72 Curtis Adolph, The 6 Jordan v. Williams 201 Patch V. Marshall 294 Snow V. Wope 334 Dallas Motherwell v. United States 284 Daniels Brown v. Landon 82 Davis Azogue v. United States 30 Goldsborough v. United States 173 Stahel v. United States 335 Deady Bernard v. Creene 70 Marie, The 259 Denman, Lord Leveux v, Berkeley 230 Dillon Van Hoven, Ex parte Henry 423 Duer Griffin v. Dominguez 182 Duffie Browne v. Palmer 83 Edmonds Flynn v. Stougliton 161 Ellenborough, Lord Marshall v. Critico 281 Viveash v. Becker 423 Field (California) Mott v. Smith 284 Field Mahoney v. United States 255 Oscanyan v. Arms Company 293 Fish Long v, Powell 247 Ford Sartori v. Hamilton 323 Fox Amalia, The 9 Gould v. Staples 178 Fuller Baiz, In re 33 Benito Estenger 70 lasigi V. Van de Carr 197 XXX JUDGES WITH LIST OF CASES DECIDED Judges Cases Page Fuller — {Continued) Ornelas v. Ruiz 292 Garland Farmer, Succession of 155 Wedderburn, Succession of 440 Gaines Schunior v. Russell 328 Gilbert United States v. Bee 379 Gildersleeve Baiz v. Malo 51 Grier .... Robson v. The Huntress 320 Grimko Goddard v. Luby 173 Haines Seidel v. Peschkaw 330 Hanf ord Falls of Keltie, The 154 General McPherson, The 165 Hindsgaul v. The Lyman D. Foster 190 Neck, The 284 New City, The 284 Troop, The 376 Waitshoair v. The Craigend 436 Hannen Fawcus, In re 158 Hardwicke Colebrook v. Jones 112 Harlan Bors v. Preston 74 Mathews v. United States 282 Harris Koppel v. Heinrichs 216 Harrison Wilcox v. Luco 447 Hoffman Dillon, In re 139 Hopkins Welsh v. Hill 446 Hopkinson Brown v. The Independence 83 Coriolanus, The 120 Magee v. The Moss 255 Pool V. Welsh 310 Wilson V. The Mary 459 Howry Wilbor v. United States 447 Huger State v. De La Foret 337 Jay Glass v. The Sloop Betsey 172 Jenkins Adutt, In re 6 Jenner, Sir Herbert Aspinwall v. Queen 's Proctor 20 Johnson Bello Corrunes, The 68 Invincible, The 199 Jones Marine Wharf v. Parsons 259 Norberg v, Hillgreu 290 Kane Orr v. The Aehsah 293 Kenyon, Lord Roberts v. Eddington 319 Lacombe Kessler v. Best 214 Lathrop Telef sen v. Fee 362 Wyman, In re 460 Locke Alice, The 7 Lord Justices Haggitt v. Iniff 184 Lowell Becherdass Ambaidass, The 54 Gallon V. Williams 87 Chester v. Benner 98 Coffin V. Weld 107 Lorway v. Lousada 252 Robert Ritson, The 319 xxxi JUDGES WITH LIST OP CASES DECIDED Judges Cases Page Lushington Baltica, The 51 Franz and Elize, The 164 Golubchick, The 173 Ilerzogin Marie, The 188 Octavie, The 292 McAllister Campbell v. Steamer Uncle Sam 90 McCaleb Rogers v. Amado 320 McFarland Wilcox v. Liico 447 McKee Miller v. Van Loben Sells 283 McLean Stein v. Bowman 349 McPherson Eudora, The 152 United States v. Motherwell 410 Mansfield, Lord, Healthfield v. Chilton 187 Triquet v. Bath 375 Mansfield, Sir James Clarke v. Cretico 105 Waldron v. Coombe 436 Marshall Antelope, The 19 Church V. Hubbart 99 Cohens v. Virginia 108 Divina Pastora, The 148 Martin Ferrers v. Bosel 159 Mathews Caygas v. Larionda's Syndic 98 Merrick Loring v. Thorndike 247 Miller Benson v. McMahon 70 Rabasse, Succession of 316 Morrow Grin, In re 183 Kenny v. Blake 214 Neil Redmond v. Smith 318 Nelson Graham v. Stucken 179 Pioneer, The 310 Nichol, Sir John Adolph, The 6 Noble Peterson 's Will, In re 308 Ogden Lanf ear v. Ritchie 224 Orlady Commonwealth v. Di Silvesro 112 Orton Semmens v. Walters 332 Pardee Aubrey, In re 26 Parker Hall v. Young 184 Patteson, Sir John Sorenson v. The Queen 334 Peck Otterbourg 's Case 294 Peckham Dallemagne v. Moisan 123 Pettit Durand v. Halbach 149 Phillimore, Sir Robert Agincourt, The 6 Evangelistria, The 154 Niboyet v. Niboyet 285 Richardson Byers v. United States 84 Romilly, Lord Nina, The 285 Ro83 Sirius, The 334 United States v. Trumbull 418 Ruggles Valarino v. Thompson 418 Scott, Sir William; see also Lord Stowell Betty Cathcart, The 72 xxxii JUDGES AVITII LIST OP CASES DECIDED Judges Cases Page Scott, Sir Wimam—( Con (.) . .Charlotte, The 98 Courtney, The 121 Dree Gebroeders, The, v. Vandyk 148 Falcon, The 154 Flad Oyen, The 160 Hope, The 190 Indian Chief, The 197 Josephine, The 213 Madonna d' Idra 255 President, The 316 Two Friends, The 376 Vrow Anna Catharina, The 436 Shaw Savage v. Birckhead 326 Scanlon v. Wright 326 Shepley Jenks v. Cox 199 Shippen Caldwell v. Barclay 86 Silknian ..Fattosini, Matter of 155 Lobrasciano 's Estate, In re 235 Tartaglio, In re 360 Simmonton Topsy, The 374 Slidell Duf our, Succession of 148 Speer Salomini, The 323 Sprague Brunent v. Taber 83 Hathaway v. Jones 186 Havana, The 186 LiUa, The 235 Luscom V. Osgood 252 Morris v. Cornell 283 Shorey v. Eennell 333 United States v. Lunt 410 Wope v. Hemenway 459 Story Anne, The 11 Levy V. Burley 230 London Packet, The 247 Matthews v. Offley 282 Parsons v. Hunter 294 Potter V. Ocean Insurance Company 315 Rowe V. Brig 321 Stowell, Lord ; see also Sir Wil- liam Scott Kammerhevie v. Eosenkrants 214 Wilhelm Frederick, The 457 Surrogate Ferrie v. Public Administrator 160 Swayne Coppell v. HaU 120 Talbot, Lord Barbuit 's Case 52 Taney Gittings v. Crawford 165 Tenney Lady Furness, The 219 Thomas Logiorato 's Estate, In re 244 Thompson Catlett v. Pacific Insurance Company 98 Davis v. Packard 130 Davis V. Packard 133 Tilghman Commonwealth v. Kosloff 112 xxxiii JUDGES WITH LIST OF CASES DECIDED Judges Cases Page Tilghman — Conti7iued) Mannhardt v. Soderstrom 256 i indall Daly, In re 128 Darling, In re 128 Davy to Maltwood 137 Eady, In re 150 Toulniin Burchard, The 84 Walter D. Wallet, The 439 Welhaven, The 446 Townsend Matheson v. Campbell 282 Van Epps De Give v. Grand Rapids Furniture Co. . . . 139 \'ice-Cliancellor Albretcht v. Sussman 7 Kent V. Burgess 214 Waite Wildenhus 's Case 447 Wallace United States v. Badeau 376 Ware Bee, The 54 Hutchinson v. Coombs 192 Smith V. Treat 334 Toler V. White 373 William Harris, The 458 Washington Herman v. Herman 188 United States v. Ortega 411 Waties Goddard v. Luby 173 Weldon Mosby v. United States 284 Wellborn Pooley v. Luco 310 Wheeler United States v. Owen 415 White United States v. Eaton 379 Wilde Sharpe and Sharpe v. Crispin 333 Sturgis v. Slacum 354 Willard United States v. Lucinario 410 Wilson (Texas) Adams v. State 6 Wilson (U. S. Sup. Ct.) United States v, Ravara 415 Winslow Scott v. Hobe 329 Wood Simpson v. Fogo 333 Woodbury Harrison v. Vose 185 Woodruff Elwine Kreplin, The 152 Woods Marston v. United States 281 XXXIV TABLE OF THE OPINIONS OF THE ATTORNEYS GENERAL Attorneys General Keport« Bates ...Vol. XI, p- Berrien . . . Vol. II, p- Black . . . Vol. IX, p- Vol, IX, p- Vol. IX, p- Vol. IX, p- Vol. IX, p- Vol. IX, p- Vol. IX, p- Vol. IX, p- Bradford ...Vol. I, p- Vol. I, p- Butler ....Vol. II, p- Gushing ...Vol. VI, p- ~ Vol. VII, p- Vol. VII, p- Vol. VII, p- VoL VII, p- Vol. VII, p- Vol. VII, p- Vol. VII, p- Vol. VII, p- Vol. VII, p- Vol. VIII, p- Vol. VIII, p- Vol. VIII, p- Vol. VIII, p- Vol. VIII, p- Vol. VIII, p- Devens . . . Vol. XVI, p- Evarts ...Vol. XII, XIX, p- p- Garland ....Vol. Vol. XIX, p- Vol. XIX, p- Vol. XIX, p Gilpin Vol. III, p- p Griggs ....Vol. XXII, Vol. XXII, p Vol. XXIII, p Vol. XXIII, p Vol. XXIII, p Grundy . . . . Vol. III, p Harmon ....Vol. XXI, p Page 72 596 378 473 96 585 383 587 384 588 426 590 441 591 496 593 500 594 507 594 41 463 43 464 725 480 617 489 18 497 186 509 242 511 342 541 349 547 367 548 395 554 542 555 772 556 73 557 98 568 169 571 380 576 469 582 476 583 268 608 463 602 16 609 22 610 196 613 225 615 532 482 72 623 212 627 93 630 112 640 400 640 405 481 201 621 XXXV TABLE OF THE OPINIONS OF THE ATTORNEYS GENERAL Attorneys General HoTt Vol. Johnson Vol. Knox Vol. Vol. Vol. Lee Vol. Vol. Legare Vol. Mason Vol. Miller Vol. Vol. Nelson Vol. Richards Vol. Speed Vol. Stanbery Vol. Vol. Vol. Taf t, Alphonzo Vol. Taf t, Wm. H Vol. Taney Vol. Williams Vol. Wirt Vol. Vol. Eeports XXIV, p V, p XXIV, p XXIV, p XXV, p I, p I, p III, p IV, p XX, p XX, p IV, p XXII, p XI, p XII, p XII, p XII, p XV, p XX, p n, p XIV, p I, p I, p Page 116 646 161 487 69 645 672 647 77 649 77 465 81 466 683 483 390 486 92 620 455 621 185 484 32 623 508 597 1 598 97 599 124 601 178 604 26 618 521 477 520 602 378 466 406 467 XXXVl REGUUTIONS RELATING TO IMMUNITIES OF CONSULS AS ADOPTED BY THE INSTITUTE OF INTERNATIONAL UW, IN ITS SESSION OF SEPT. 26, 1896/ * PRELIMINARY CHAPTER Article 1. — The title of consul belongs only to those agents of the foreign service, who belong to the state they represent, and who exer- cise no functions other than those of consul, (consules missi) Hereafter, the following classes shall be designated as consular agents : (a) Consuls, who are nationals, that is citizens or subjects of the sending state, but who exercise other functions or have some other calling ; (b) Consuls, who by nationality, belong either to the state in which they are commissioned, or to some state other than the sending state, without distinguishing between those who exercise and those who do not exercise, other functions or callings. Art. 2. — Consuls and consular agents are subject to the laws and territorial jurisdiction, save for the exceptions specified under chapters I and II, below. Art. 3. — To entitle consuls and consular agents to be admitted and recognized as such, they must present their patent or commission; on the production of which, they will receive their exequatur. Upon the presentation of the exequatur, the authority presiding over the district, in which the said agents are to be located, will give the necessary orders to the other local authorities, in order that they may be protected in the exercise of their functions, and that the im- munities, exemptions, and privileges, conferred by these regulations, may be guaranteed to them. In the event that the government of a country should deem it advisable to withdraw the exequatur from a consul, it should pre- viously inform the government to which the consul belongs. ^[Translated from the original in French. — Ed.] 1 CONSULAR IMMUNITIES CHAPTER FIRST Consuls Art. 4. — Consuls enjoy personal immunity, under the conditions and ^^^thin the limits specified in articles 5, 6, 7, and 8, below. Art. 5. — They are not amenable to the local courts for acts which they perform in their official capacity and within the limits of their powers. Exceptions to this rule must be agreed upon in advance and defined by treaty. If an individual considers himself injured by the act of a consul, done in the discharge of his duties, he shall address his complaint to the government of the country, which will take it up, if there is reason to do so, through diplomatic channels. Art. 6. — Except in the case specified in article 5, above, consuls are amenable to the courts of the country, in which they exercise their functions both as regards civil and criminal questions. Nevertheless, every proceeding directed against a consul is sus- pended until his government (sending state), duly notified through diplomatic channels, shall have been put in a position to confer with the government of the country (receiving state) so as to reach an ade- quate settlement of the incident. Such previous notice is not necessary : ( 1 ) In case of outrageous offences or crimes ; (2) In property suits (suits in rem), in which are included suits for possession, whether relating to personal property or to real estate situated in the country itself (receiving state) ; (3) "When the consul himself has begun the litigation or accepted suit in the courts of the receiving state. Art. 7. — In no case may consuls be arrested or detained, except for grave infractions of the law. Art. 8. — They are not compelled to appear as witnesses before the local tribunals. Their testimony must be taken at their residence by a magistrate appointed ad hoc. In exceptional cases, where the appearance of the consul in person before the magistrate exercising civil or criminal jurisdiction is considered indispensable, and he refuses to accede to the invitation addressed to him, to appear before the competent judge, the govern- ment of the receiving state should have recourse to diplomacy. 2 CONSULAR IMMUNITIES Art. 9. — The official residence of a consul and the premises oc- cupied by his office and papers are inviolable. No administrative or judicial officer may invade them, under any pretext whatsoever. If an individual, pursued by the officers of the law takes refuge in the consulate, the consul is bound to deliver him up on the simple demand of the authorities. Art. 10. — In order specially to insure the inviolability of the con- sular archives, the foreign agent (consul), should make use of the diplomatic mission to transmit to the authorities of the county (re- ceiving state) a paper describing the premises composing the office of the consulate. This should be done at the time the consul enters upon the discharge of his functions and whenever the files (chan- cellerie) are transferred from one building to another or any im- portant change is made in the arrangement of the office (chancellerie). The above-mentioned statement describing the arrangements of the consulate shall be verified each time by an officer of the receiving state. Art. 11. — Consuls should refrain from placing among their archives, and in the rooms of their office, documents and objects not connected with their service. The offices of the consulate, if distinct from the rooms serving as the abode of the consul, may be installed in the same building. Art. 12. — If the consul refuses to deliver up documents in his possession when required to do so by the judicial authorities of the country, the administrative authority shall have recourse to the gov- ernment of the country, who will take the matter up, if there be oc- casion, through diplomatic channels. Art. 13. — Consuls are exempt from the payment of: (1) direct personal taxes, and sumptuary taxes; (2) general taxes upon their fortune whether upon the capital or income; (3) imposts of war. Art. 14. — Consuls are permitted to place above the outside en- trance of the consulate the arms of their coimtry, with the inscrip- tion : ' ' Consulate of " They may on public occasions display the flag of their country upon the building in which the consulate is located, unless they reside in the city where their government is represented by a diplomatic mission. They are likewise authorized to raise the flag of their country upon the boats they use in the exercise of their fiuictions. Art. 15. — Consuls are permitted to correspond with their govern- ment and with the political mission of their country by telegraphic despatches in cipher or by means of messengers provided with a passport ad hoc. 3 CONSULAR IMMUNITIES It is likewise permissible for them to entrust their correspondence to the captains of vessels of their nationality at anchor in the harbor of their place of residence. In case of an epidemic, the disinfection of letters intended for consuls takes place in the presence of a consular delegate. Art. 16. — In event of the decease or the imlooked for disability of the consul, the consular officer of highest rank after him shall be considered to have the right to carry on the consulate. He is obliged, however, in due course to communicate to the local authority, the of- ficial act, which confirms him in his provisional incumbency. To this intent, it is the duty of the consul to present to the local authority the officer designated contingently to replace him ad interim. This officer shall, during his incumbency, enjoy the immunities and privileges accorded to consuls by these regulations. Art. 17. — There is no distinction, as regards immunities, between consuls-general, consuls, and vice-consuls. It is to be understood that agents of this last category, in so far as they are in charge of vice-consulates, must satisfy the conditions as to nationality, and the other conditions indicated (required) in the first paragraph of article first of these regulations. In official ceremonies to which they are invited, consuls-general, consuls, and vice-consuls take precedence according to their rank, and in each rank, according to the date of their entrance upon the dis- charge of their functions. CHAPTER II Consular Agents Art. 18. — "When civil or criminal suits are instituted against con- sular agents, the local courts shall be competent to take cognizance of them directly, except in ease it shall be established that the said agents have acted in their official capacity. Art. 19. — Consular agents are exempt from taxes affecting spe- cially the building or part of the building assigned to their consular office. With this exception, they are subject to other imposts, whether national or local. Art. 20. — Articles 10, 11, paragraph 1st, 12 and 14 apply to consular agents, with this difference as regards article 14, that the 4 CONSULAR IMMUNITIES coat of arms, placed over the street entrance to their office, shall bear the inscription : * ' Consular Agency of " The office of consular agents, including the room in which the con- sular archives are kept, must always be separate from their business offices. Art. 21. — Consular agents may correspond directly, upon official business, with the administrative and judiciary authorities of their respective districts. Resolution Adopted hy the Institute in the Same Session The Institute having adopted the Regulations regarding im- munities of consuls, expresses the wish that governments, whose functionaries are likely to be in a position to be benefited by them, will exercise the greatest care in the choice of such function- aries, that they may be worthy in all respects of the immunities above specified. CONSULAR CASES ADAMS V. STATE. (1885, U. S.) 19 Tex. App. ::50. ^Y ill son, Texas Court of Appeals. [Consul qualified to take depositions to be used in criminal eases, by reason of the application of articles of the R. S. art. (2226) and articles 762-764 of the code of criminal procedure. — Ed.] ADOIPH. THE, (1835, Great Britain) 3 Uiig. 249. Sir John Nicholl, High Court of Admiralty. (Extract) In that case (Kammerhavie, 1 Hag. A. R. 62) there was the certificate of the consul, and the master gave his consent : here there is no one to consent. I cannot make any order. ADOLPH, THE, (1851, U. S.— France) 1 Curt. 87; Fed. Cases 86. Curtis, Circuit Court. (Extract) We deem it sufficient for this particular purpose, that >\I. Gouraud is the vice-consul of France ; and that French citizens are interested in these proceeds. It is true, he had not received his exequatur when he filed his petition ; and if this were a suit instituted by him, and depending on his official character when brought, it must fail. But we do not consider the proceeding at all analogous to a suit, or even to a petition for the execution of a decree. It is rather in the nature of a suggestion, made in writing to the court, that one of its officers has not discharged his official duty ; . . . ADUTT, IN RE, (1893, U. S.— Austria-Hungary) 55 Fed. Rep. 376. Jenkins, Circuit Court. [Extradition proceedings may be commenced by consuls. It is not necessary that the complainant should swear positively in the jurat that he is consul. Criticises rights allowed consul in extradition proceedings. — Ed.] AGINCOURT. THE, (1877, Great Britain) 2 P. b. 239; 47 L. J. Adm. 37. Sir Robert PhUlimore, Court of Appeal. [Court directed that Argentine consul be notified of action against Argentine ves.sel. On his refusing to intervene action was dismissed. — Ed.] 61 CONSULAR CASES ALBRETCHT v. SUSSMAN, (1813, Great Britain) 2 Ves. & Bea. 327; 35 Eng. Eep. 342. Vice-Chancellor, Chancery, (Extract) I am of opinion, fortified by having recourse to those best qualified to inform me, that, if a consul, or a person having even higher privileges, residing in an enemy's country, not content with acting in that character^ embarks in mercantile transactions, his individual character is not merged in his national character, which cannot protect him from the consequences of those transactions. ALEXANDRA, THE, (1906, U. S.) 104 Fed. Eep. 904. Brawley, District Court, [Expressed opinion that consul would not be competent to take depositions de bene esse; they not being "ordinary notarial aets,^ such as a notary public could perform simply by virtue of his office. ' ' Cites Cortes Co. v. Tannhauser, 18 Fed. Rep, 667. See Bischoff- scheim v. Baltzer, 10 Fed. Rep. 4, contra. — Ed.] ALICE, THE, (1882, U. S.) 12 Fed. Rep. 923. Locke, District Court. 1. Evidence. That party had but one bill of lading and did not deem it prudent to incur the risk of a sea voyage from Antwerp, when it might be needed in more im- portant suit, not deemed sufficient to admit in evidence a paper certified by United States consular certificate to be a true copy. 2. Consular Certificate. A consular certificate is not evidence. In Admiralty. LOCKE, D. J. This is a suit for damages and possession of cargo. The libellant presents by his proctor a paper certified by the United States consul at AntAverp to be a correct copy of an original bill of lading in the possession of Weber, the libellant, and asks that it be accepted as evidence in lieu of the original, upon the grounds that "libellants have but one copy of the original bill of lading, and they deem it best not to expose that to the risk of long sea voyages before they can judge where their principal claim must be enforced. "This refers to the fact of a fraudulent shipment and false bills of lading ^ The statute § 1750 says ' ' any notarial act which any notary public is re- quired or authorized by law to do within the United States." CONSULAR CASES Avliich have appeared in other suits against the same property, and (924) which have presumably given the libellants (they being con- signees of a portion of the cargo and having made large advances thereon) an action against the shipper; and as the amount which can be recovered from this suit is but trifling when compared with that involved, the reason for withholding the original appears plausible; but when more closely examined I am not of the opinion that it offers such an excuse as would justify such a wide departure from the gen- eral rule of requiring primary evidence as permitting the introduc- tion of the paper presented would require. It is much better that private interests and individual cases suf- fer delay, rather than that the rules of practice and evidence estab- lished by the accumulated wisdom of generations in successive de- cisions should be easily broken down or ignored ; and if the libellants have the originals, the production of them can be made but a question of time, notwithstanding other interests. The general rule which re- quires the best evidence, namely, the introduction of the original documents embodying contracts, has, it is true, certain exceptions ; but in every case such exception is based upon the inability of the party to procure the original ; and this has been so repeatedly affirmed, and so conclusively established, that it can but be recognized as binding. The certificate attached to the copy states, and the libellants acknowl- edge, that the original is in their possession, and this takes the case from the rule of exceptions. I have been referred to no case, nor have I been able to find one, where the inconvenience of parties or prospect of an original being required in another suit has been considered suf- ficient reason for the acceptance of a copy in evidence. International commerce is of too great importance to have the possibility of success of fraud made any greater by breaking down any of the well-established protections for such documents as bills of lading or of exchange; and although there are no suspicious circum- stances connected with this case, nor have I personally any doubt of the integrity and validity of the libellant's cause, I do not consider that they have brought themselves within the rule which would au- thorize the acceptance of secondary evidence. Renner v. Bank of Columbia, 9 Wheat. 581 ; Sebree v. Dorr, Id. 558 ; Greenl. Ev. § 84, and note; Hart v. Yunt, 1 Watts, 253; U. S. v. Reyburn, 6 Pet. 352; Comet v. Williams, 20 AVall. 226; U. S. v. Lamb, 12 Pet. 1; Stephen, Ev. arts. 66, 67. There is another point which would rule out the copy as authenticated were the one considered insufficient. It has been conclusively decided in the courts of the United States that a consular certificate (925) cannot be accepted as evidence except where it has been made such by statute, (Levy v. Burley, 2 Sumn. 355; 8 CONSULAR CASES Church V. Hubbard, 2 Cranch 187 ; U. S. v. Mitchell, 2 Wash. C. C. 188;) and although the acts of August 18, 1856, and of January 8, 1869, have added some force to consular certificates, and given consuls new powers in taking depositions, the law has not been changed in the points in question. The application to admit the testimony must be denied, but time will be granted to procure the original of the bill of lading, or make a more satisfactory accounting for its absence. ALNWICK, THE, (1904, U. S.— Great Britain) 132 Fed. Eep. 117. Adams, District Court. [To what extent U. S. courts will exercise jurisdiction in suits for seamen's wages. Will do so in case of American citizens, or in case involving ap- plication of statutes of U. S. This case involved the prepayment of wages by officer of British ship to Americans. — Ed.] AMAIIA, THE, (1880, U. S.— Sweden) 3 Fed. Eep. 652. Fox, District Court. FOX, D. J. (Extract) This libel is instituted by the second mate, steward, and all the seamen, praying to be discharged from further service in this bark, and for the payment of their wages, on account of a short allowance of provisions on a voyage of 124 days, from Alexandria, Egypt, to this port, and (653) also on account of ill-treatment by the officers of the ship. This vessel is under the Swedish flag, hailing from Hernosand, in Sweden. The master is a Swede. Some of the libellants are citizens of that country, while others are subjects of Denmark and Prussia. Some of the crew were shipped at Hernosand, and some in New York, all for a two-year voy- age, (which time has not yet expired,) and until the vessel's return to Sweden. There being no consul or other representative of Sweden within the jurisdiction of this court, upon reading the libel it was deemed proper to grant process against the ship, then in the harbor or Portland. On the return day the master appeared and presented a preliminary objection to the court's further proceeding in the cause, for the reason that the ship was a foreign vessel, and her crew must be taken as belonging to the nationality of her flag, and that under such circumstances the district court should not interpose, in a con- troversy of this description, between a foreign ship and her crew. In all differences between officers and crew of a foreign vessel, 9 CONSULAR CASES which have been presented to this court, the court has heretofore, in every instance, declined to assume jurisdiction whenever there has been within the district any representatives of the government to which such ship belonged, and has invariably remitted to such repre- sentative all such controversies for his determination. In all such cases the court has recognized the rule announced by the privy council in The Nina, 2 L. R. P. C. 39, that the nationality of the vessel, and not the nationality of any one of her crew, asking the interposi- tion of the court should regulate the action of the court; and all of the crew of this ship, for the purpose of this investigation, must be deemed Swedish subjects, notwithstanding it appears that some of them are in fact citizens of other nationalities. It cannot admit of question that the district court, unless re- stricted by some treaty stipulation, has jurisdiction, in a case for wages, against a foreign vessel, and that the exercise of such juris- diction is discretionary. In the exercise of such discretion the alle- gations found in this libel required of the court, in the absence of any Swedish representative, to (654) investigate the cause so far as to ascertain whether the facts and reasons alleged for the crew's dis- charge were established by the evidence. The cause, therefore, was allowed to proceed to a hearing, and at the close of the testimony of the libellants the attention of the court was first called to the thir- teenth article of the treaty between Sweden and the United States, of July 4, 1827, in 8 U. S. St. 346, 352. By this article it was stipu- lated "that each country should have the right to appoint consuls, vice-consuls, etc., in the commercial ports and places of the other coun- try," and that such consuls, etc., "shall have the right as such to sit as judges and arbiters, in such differences as may arise between the captain and crews of the vessel belonging to the nation whose interests are committed to their charge, without the interference of the local authorities." This court is bound to recognize and obey this provision of the treaty as completely as if the same were contained in an act of con- gress, and the question which arises is whether, there being no consul or other officer of Sweden within this jurisdiction, the nearest being a vice-consul at Boston, this court is, by this provision of the treaty, debarred from exercising its authority in the present case. It seems quite clear to me that the court is not thus ousted of its jurisdiction. The purpose of this provision was to provide proper means of redress for the parties mentioned in the treaty, when difficulties should occur between them, and it was certainly judicious that such questions should be decided by the consul, or other officer of their respective countries conversant with the language of the disputants, and who 10 CONSULAR CASES may well be supposed to be acquainted with the laws and customs which should determine their respective claims; but, whenever the parties are in such a position that they cannot obtain the services of such an officer, can it be that it was the design of the treaty to leave them remediless, and to deprive the local tribunal of all authority to afford any redress, however urgent the occasion may be therefor? If a Swedish vessel should be libelled in this court for supplies furnished here, for which she is liable, and is afterwards (655) sold by a decree of the court, can it be that the crew, by this provision of the treaty, are prohibited from proceeding for the recovery of their wages against the surplus which may remain in the registry, and that the court cannot decree the payment therefrom of their respective claims for wages, but must, if claims of subordinate rank are presented by our own citizens, allow such claimants to absorb the surplus, with- out power to afford the seaman any redress? I hold that a court of admiralty would require, in a treaty, the most positive, absolute prohibition against assuming jurisdiction in such a case, and would insist on language which would not admit of any doubtful significa- tion, before it would aclmowledge that its authority to protect the seaman was thus abrogated. If in any case the power still remains in the court, and it has authority to act when there is no consul within its jurisdiction, the authority must exist in all such cases; and it is only a question of judicial discretion whether the circumstances of any case are such as to require the court to interpose and take cogni- zance of the dispute. ANNE, THE, (1818, U. S.) 3 Wheat. 435 ; 5 Moore 94. Story, Supreme Court. The captors are competent witnesses upon an order for further proof, where the benefit of it is extended to both parties. The captors are always competent witnesses, as to the circumstances of the capture, whether it be joint, collusive, or within neutral territory. It is not competent for a neutral consul, without the special authority of his government, to interpose a claim on account of the violation of the territorial jurisdiction of his country. Quaere, Whether such a claim can be interposed, even by a public minister, without the sanction of the government in whose tribunals the cause is pending. A capture, made within neutral territory, is, as between the belligerents, rightful; and its validity can only be questioned by the neutral state. If the captured vessel commence hostilities upon the captor, she forfeits the neutral protection, and the capture is not an injury for which redress can be sought from the neutral sovereign. Irregularities on the part of the captors, originating from mere mistake or negligence, which work no irreparable mischief, and are consistent with good faith, will not forfeit their rights of prize. 11 CONSULAR CASES APPEAL to the circuit court for the District of Maryland. (436) The British ship Anne, with cargo belonging to a British subject, was captured by the privateer Ultor, while lying at anchor near the Spanish part of the Island of St. Domingo, on the 13th of March, 1815, and carried into New York for adjudication. The master and supercargo were put on shore at St. Domingo, and all the rest of the crew, except the mate, carpenter and cook, were put on board the capturing ship. After arrival at New York, the deposi- tion of the cook only was taken, before a commissioner of prize, and that, together with the ship's papers, was transmitted by the com- missioner, under seal, to the district judge of Marj'land district, to which district the Anne was removed, by virtue of the provisions of the act of congress of the 27th of Janaury, 1813, ch. 478. Prize proceedings were duly instituted against the ship and cargo, and a claim was afterwards interposed in behalf of the Spanish consul, claiming restitution of the property, on account of an asserted violation of the neutral territory of Spain. The testimony of the carpenter was thereupon taken by the claimant, and the captors were also admitted to give testimony as to the circumstances of the capture; and, upon the whole evidence, the district court rejected the claim, and pronounced a sentence of condemnation to the captors. Upon appeal to the circuit court, peace having taken place, the British owner, Mr. Richard Scott, interposed a claim for the property, and the decree of the district court was affirmed, pro forma, to bring the cause for a final adjudication before this court. (437) Mr. Harper, for the appellant and claimant, argued, that the captors were incompetent witnesses, on the ground of interest, except when further proof was imparted to them ; ^ and that they were not entitled to the benefit of further proof in this case, being in delicto. The irregularity of their proceedings, and the violation of the neutral territory, would not only exclude them from further proof, but forfeit their rights of prize. The testimony being irregular, it must appear, affirmatively, that it was taken by consent, where the irregularity consists, not in a mere omission of form, but in the in- competency or irrelevancy of the evidence. The testimony of the captors being excluded from the case, the violation of the neutral territory would appear uncontradicted. The text writers affirm the immunity of the neutral territory from hostile operations in its ports, bays and harbors, and within the range of cannonshot along its ' The Adriana, 1 Eob. 34; The Haabet, 6 Rob. 54; L'Amitie, Id. 269, note a. 12 CONSULAR CASES coasts.* Nor can it be used as a station from which to exercise hos- tilities.* As to the authority by which the claim was interposed, the Spanish consul 's was sufficient for that purpose ; especially under the peculiar circumstances of the times when, on account of the unsettled state of the government in Spain, no minister from that country was received by our government, (438) but the former consuls were con- tinued in the exercise of their functions by its permission. In one of the cases in the English books, the Portugese consul was allowed to claim on account of violated territory, although it does not appear that he had any special instructions from his sovereign for that purpose.* But even supposing the powers of a consul not ade- quate to this function, whence arises the necessity that the neutral government should interfere in general? Because the enemy pro- prietor is absolutely incapable of interposing a claim on this or any other ground. But here the incapacity of the claimant is removed, his persona standi in judicio being restored by the intervention of peace. He may, consequently, assert his claim upon every ground which shows that the capture, though of enemy's property, was orig- inally unlawful and void. Mr, D. B. Ogden and Mr. Winder, contra, contended, that the captors were admissible witnesses in this case, as they are in all cases respecting the circumstances of the capture ; such as collusive and joint captures, where the usual simplicity of the prize proceedings is nec- essarily departed from. So, also, their testimony is generally admitted on further proof." A claim founded merely upon the allegation of a violation of neutral territory is a case peculiarly requiring the (439) introduction of evi- dence from all quarters, the captors being as much necessary witnesses of the transaction as are the captured persons. Every capture of enemy's property, wheresoever made, is valid, prima facie; and it rests with the neutral government to interfere, where the capture is made within neutral jurisdiction. The enemy proprietor has no persona standi in judicio for this or any other purpose. But here the sug- gestion of a violation of the neutral territory is not made by proper authority. All the cases show that a claim for this purpose can only be interposed by authority of the government whose territorial rights 'Vattel, L. 3, ch. 7, s. 132; Id. L. 1 Ch. 23, s. 289; Bynk. Q. J. Pub. L. 1 c. 8; Martens L. 8, s. ch. 6, s. 6; Azuni, part 2, ch. 5, Art. 1, s. 15. » The Twee Gebroeders, 3 Rob. 162 ; The Anna, 5 Eob. 332. * The Vrow Anna Catherina, 5 Eob. 15. "The Maria, 1 Rob. 340; The Resolution, 6 Rob. 13; The Grotius, 9 Cranch, 368; The Sally, 1 Gallis. 401; The George, The Bothnea, and The Jann- stoff, 1 Wheaton, 408. Wheat. 3. 13 CONSULAR CASES have been violated.' The public ministers of that government may make the claim, because they are presumed to be fully empowered for that purpose. But a consul is a mere commercial agent, and has none of the diplomatic attributes or privileges of an embassador; he must, therefore, be specially empoAvered to interpose the claim, in order that the court may be satisfied that it comes from the offended government. A consul may, indeed, claim for the property of his fellow-subjects, but not for the alleged violation of the rights of his sovereign ; because it is for the sovereign alone to judge when those rights are violated, and how far policy may induce him silently to acquiesce in those acts of the belligerent by which they are supposed to be infringed. There is only one case in the English books, where a claim of this sort appears to have been made (440) by a consul; and from the report of that case it may be fairly inferred that he was specially directed by his government to interpose the claim.^ But even the Spanish government itself has not conducted with that impartiality between the belligerents which entitles it to set up this exemption.' Its territory was, during the late war, permitted to be made the theatre of British hostility, and in various instances was violated with impunity. Spain was incapable, or unwilling, at that time, to maintain her neutrality in any part of her immense do- minions. In this very case the captured vessel was not attacked ; she was the aggressor, and, in self-defence, the privateer had not only a right to resist, but to capture. The local circumstances alone would have prevented the Spanish government from protecting the in- violability of its territory, on a desert coast, and out of the reach of the guns of any fortress. Bynkershoek and Sir "William Scott hold, that a flying enemy (441) may lawfully be pursued and taken in such places, if the battle has been commenced on the high seas.^ A fortioro, may an enemy, who commences the first attack within neutral jurisdiction, be resisted and captured. But should all these grounds fail, the captors may stand upon the effect of the treaty of peace in quieting all titles of possession arising out of the war.' As between the American captors and the British claimant, the pro- prietary' interest of the (442) latter was completely devested by the capture. The title of the captors acquired in war was confirmed by bringing the captured property mfra praesidia. The neutral govern- ment has no right to interpose, in order to prevent the execution of •The Twee Gebroeders, 3 Rob. 162, note; The Dilligentia, Dodson, 412; The Eliza Ann, Id. 244. ^ The Vrow Anna Catharina, 5 Rob. 15. •The Eliza Ann, Dodson, 244, 24.5. ' The Anna, 5 Rob. .34.5. ' Wheaton on Capt. 307, and the authorities there cited. 14 CONSULAK CASES the treaty of peace in this respect, by compelling restitution to British subjects contrary to the treaty to which they are parties. The neutral government may, perhaps, require some atonement for the violation of its territory, but it has no right to require that this atonement shall include any sacrifice to the British claimant. Mr. Harper, in reply, insisted, that the claim of neutral terri- tory, as invalidating the capture, might be set up by a consul as well as any other public minister. He may be presumed to have been authorized to interpose it by his government; and in the case of The Vrow Anna Catharina' it does not appear that any proof was given to the court that the Portugese consul was specially in- structed to make the suggestion. However partial and unjustifiable may have been the conduct of Spain in the late war, it has not yet been considered by the executive government and the legislature (who are exclusively charged with the care of our foreign relations) as forfeiting the right still to be considered, in courts of justice, as a neutral state. In the case of The Eliza Ann,* Sir W. Scott went on the ground of the (443) legal existence of a war between Great Britain and Sweden, although declared by Sweden only; and that the place where the capture was made was in the hostile possession of the British arms. The observations thrown out by him in delivering his judgment, as to the necessity of the neutral state maintaining a perfect impartiality between the belligerents, in order to support a claim of this sort in the prize court, were superfluous; because the facts showed that Sweden was in no respect to be considered as neu- tral, having openly declared war against Great Britain, and a counter declaration being unnecessary to constitute a state of hostilities. As to the alleged resistance of the captured vessel, it was a premature de- fence only, commenced in consequence of apprehensions from Car- thagenian rovers, which frequented those seas; and being the result of misapprehension, could confer no right to capture, where none previously existed. Being in a neutral place, the vessel was entitled to the privileges of a neutral. Resistance to search does not always forfeit the privileges of neutrality; it may be excused under circum- stances of misapprehension, accident, or mistake.'* But resistance to search by a neutral on the high seas is generally unjustifiable. Here the right to search could not exist, and, consequently, an at- tempt to exercise it might lawfully be raised. Finding the neutral territory no protection, the captured vessel resumed her rights as an enemy, and attempted to defend herself. The titles of possession, *5 Eob. 15. *Dodson, 244. ' The St. Juan Baptista, &c., 5 Rob. 36. 15 CONSULAR CASES which are said (444) to be confirmed by a treaty of peace, are those which arise from sentences of condemnation, valid or invalid ; but the principle cannot be applied to a mere tortious possession, unconfirmed by any sentence of condemnation like the present. The capture being invalid ab initio, and the former proprietor being rehabilitated in his rights by the intervention of peace, may interpose his claim at any time before a final sentence of condemnation, STOR'^^ J., delivered the opinion of the court: The first question which he pfesented to the court is, whether the capture was made within the territorial limits of Spanish St. Domingo. The testimony of the carpenter and cook of the captured vessel distinctly asserts that the ship, at the time of the capture, was laying at anchor about a mile from the shore of the island. The testimony of the captors as distinctly asserts that the ship then lay at a distance of from four or five miles from the shore. It is contended, by the counsel for the claimants, that captors are in no cases admissible witnesses in prize causes, being rendered incompetent by reason of their interest. It is certainly true, that, upon the original hearing, no other evidence is admissible than that of the ship's papers, and the preparatory ex- aminations of the captured crew. But, upon an order for farther proof, where the benefit of it is allowed to the captors, their attesta- tions are clearly admissible evidence. This is the ordinary course of prize courts, especially where it becomes material to ascertain the circumstances of the capture ; for in such cases the (445) facts lie as much within the knowledge of the captors as the captured ; and the objection of interest generally applies as strongly to the one party as to the other. It is a mistake to suppose that the common law doctrine, as to competency, is applicable to prize proceedings. In courts of prize, no person is incompetent merely on the ground of interest. His testimony is admissible, subject to all exceptions as to its credibility. The cases cited at the argument distinctly support this position ; and they are perfectly consistent with the principle by which courts of prize profess to regulate their proceedings. We are therefore of opinion that the attestations of the captors are legal evi- dence in the case, and it remains to examine their credit. And with- out entering into a minute examination, in this conflict of testimony, we are of opinion that the weight of evidence is, decidedly, that the capture was made within the territorial limits of Spanish St. Domingo. And this brings us to the second question in the cause; and that is. whether it was competent for the Spanish consul, merely by virtue of his oflSce, and without the special authority of his government, to interpose a claim in this case for the assertion of the violated rights 16 CONSULAR CASES of his sovereign. We are of opinion that his office confers on him no such legal competency. A consul, though a public agent, is sup- posed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of his own country; but he is not considered as a minister, or a diplomatic agent of his sovereign (446) intrusted, by virtue of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his prerogatives. There is no doubt that his sovereign may specially intrust him with such authority; but in such case his diplomatic character is super- added to his ordinary powers, and ought to be recognized by the government within whose dominions he assumes to exercise it. There is no suggestion, or proof, of any such delegation of special authority in this case; and therefore we consider this claim as asserted by an incompetent person, and on that ground it ought to be dismissed. It is admitted that a claim by a public minister, or in his absence, by a charge d' affaires, in behalf of his sovereign would be good. But in making this admission, it is not to be understood that it can be made in a court of justice without the assent or sanction of the government in whose courts the cause is depending. That is a question of great importance, upon which this court expressly reserve their opinion, imtil the point shall come directly in judgment.^ The claim of the Spanish government for the violation of its neutral territory being thus disposed of, it is next to be considered whether the British claimant can assert any title founded upon that circumstance. By the return of peace, the claimant became rehabili- tated with the capacity to sustain a suit in the courts of the country; and the argument is, that a capture made in a neutral territory is void; and (447) therefore, the title by capture being invalid, the British owner has a right to restitution. The difficulty of this argu- ment rests in the incorrectness of the premises. A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question ; and as to him, and him only, it is to be considered void. The enemy has no right whatsoever; and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, j^ire helli, to the captors. This is a clear result of the authorities; and the doctrine rests on well-established principles of public law.* ^See Viveash v. Becker, 3 Maule and Selwyn, 284, as to the extent of the powers and privileges of consuls. * The same rule is adhered to in the prize practice of France, and was acted on in the case of The Sancta Trinita, a Russian vessel, captured within a 17 CONSULAR CASES There is oue other point in the ease which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the (448) coast without shoAving her national character. It was a viola- tion of that neutrality which the captured ship was bound to observe, to commence hostilities for any purpose in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. "When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign. The conclusion from all these views of the case is, that the ship and cargo ought to be condemned as good prize of war. And the only remaining inquiry is, whether the captors have so conducted themselves as to have forfeited the rights given by their commission, so that the condemnation ought to be to the United States. There can be no doubt that if captors are guilty of gross misconduct, or laches, in violation of their duty, courts of prize will visit upon them the penalty of a forfeiture of the rights of prize, especially when the government chooses to interpose a claim to assert such forfeiture. Cases of gross irregularity, or fraud, may readily be imagined in which it would become the duty of this court to enforce this principle in its utmost rigor. But it has never been supposed that irregularities, which have arisen from mere mistake, or negligence, when they work no irreparable mischief, and are consistent with good faith, have ordinarily induced such penal consequences. There were some ir- regularities in this case; but there is no evidence upon the record from which we can infer that there was any fraudulent (449) sup- pression, or any gross misconduct inconsistent with good faith; and, therefore, we are of opinion that condemnation ought to be to the captors. It is the unanimous opinion of the court that the decree of the circuit court be affirmed with costs. Decree affirmed. mile and a half of the coast of Spain; but the counsel of prizes refused restitu- tion, because the Spanish government did not interpose a claim on account of its violated territory. Bonnemant's Translation of DeHarbeu, torn, i, p. 117. 18 CONSULAR CASES ANTELOPE, THE, (1825, U. S.) 10 Wheat. 66. Marshall, Supreme Court- (Extract) The consuls of Spain and Portugal respectively, de- mand these African slaves, who have, in the regular course of legiti- mate commerce, been acquired as property by the subjects of their respective sovereigns, and claim their restitution under the laws of the United States. ARNOLD V. THE UNITED INSURANCE COMPANY, (1800, U. S.) 1 Johns. Cases 363; 1 N. Y. Common Law Eeports 354. Kent and Lansing, Supreme Court of New York. KENT. (Extract) As long as public ministers and consuls confine themselves to the business appertaining to their public char- acters, their domicile is not changed, but remains in the country from which they are deputed, and they are not subjects of the coun- try in which they reside. (Vattel, 231; Martens, 155, 229.) But if they engage in business inconsistent with or foreign to their public or diplomatic (368) character, they are thenceforth to be considered as domiciliating themselves abroad, and becoming as subjects, amen- able to the ordinary jurisdiction of the state. (Vattel, 711-714.) As they contribute by their industry and property, when engaged in. trade, to aid the government under which they reside, it is but reason- able that the enemies of that government should have a right to hold their property responsible as that of an enemy. I am of opinion, therefore, that Mr. Hawley, by becoming a mer- chant at the Havanna, a character wholly distinct from his consular functions, was rightfully considered as establishing his domicil there ; and that he became, in regard to his transactions as a merchant, and in reference to the enemies of Spain, a Spanish subject. LANSING. (Extract) But it has been urged, that as Hawley was a consul of the United States, he is, as such, in some measure entitled to the protection of the law of nations. The admission of consuls depends either upon express conven- tion or the permission of the sovereign in whose dominions they reside. (Vattel, 132.) But by receiving them, the sovereign strictly engages to allow them all the liberty and safety necessary in the proper discharge of their functions. What personal immunities a consul is particularly entitled to it is not necessary, on the present occasion, to consider; for whatever they may be, they can only be such as to preserve his safety and independence in the discharge of those fune- 19 CONSULAR CASES tions. An exemption from imposts is not essential to his quality of consul; if he engages in mercantile speculations, he is of course sub- ject to all the burdens which other inhabitants, not subjects of the coimtry in Avhich he resides, are liable to. If there is any difference between his situation and that of other strangers, it may, perhaps, arise from his being, as an aclmowledged public functionary of a foreign nation, exempted from personal service in any hostile enterprise. This however, (372) will not so effectually disen- gage him from the interests of the society in which he resides as to make him completely a neutral. His property must contribute to the support of the war. ASPINWALL V. THE QUEEN'S PROCTOR, (1839, Great Britain— U. S.) 2 Curt. Eccl. 241. Sir Herbert Jenner, Prerogative Court of Canterbury. \ SIR HERBERT JENNER. The question arises with respect to the right of the American consul in this country to take administration of the goods of an American subject, clearly domiciled in America, who died in itinere, leaving personal property here, and money in the hands of a merchant in this town. It appears, that on the death of Mr. Hammond, (245) Colonel Aspinwall, the American consul in this country, took possession of the property about him, paid his funeral and other necessary expenses, but upon application to Messrs. Baring and Co. they declined to pay over the money in their hands until letters of administration were taken out, and they could obtain a valid discharge. An application was accordingly made to the court to grant administration to Colonel Aspinwall, founded on an act of congress, authorizing American con- suls to take possession of the effects of citizens of the United States dying in foreign countries; but the court was of the opinion that it could not grant such an application on an ex parte motion, and some discussion took place as to the form of the decree which should go out. Eventually, a decree went out against all persons, and an intimation was given, that if no person appeared to shew cause against it, the court would grant administration to Colonel Aspinwall. The de- cree was served in the usual manner, and an appearance was given on behalf of the crown, praying that the court would reject the claim of Colonel A.spinwall. It is said that the crown has no persona standi, ioT that the deceased, being a domiciled foreign subject, dying in itinere, the right to his property, locally situated in this country, is governed by the law of the country to which he belonged. It is true, 20 CONSULAR CASES that by the law and practice of this court, the distribution in such cases is to be according to the law of the country in which the party was domiciled at his death ; but the property being in this country the court will grant administration to some person who is entitled to the custody of the property, and has au-(246)thority to pay the debts due from the deceased; and the court, in deciding the question, whether Colonel Aspinwall is or is not entitled to the administration, must be guided by the law and practice of this court. Now I cannot say that the crown has no right to interfere with property belonging to for- eigners, in order to protect that property; that in all cases where foreigners die intestate in this country, the crown has no right to appear and shew cause why a person claiming the administration ought not to have it. The crown has a right to the custody of the property till a superior title to it can be shewn. This law is not peculiar to our country ; it is the general law, and it cannot be the gen- eral law of the United States that British consuls are entitled to ad- minister the estates of British subjects dying in the United States, or why was the special law of New York passed, which is mentioned in the affidavit? What is the law upon which Colonel Aspinwall rests his claim? An act of congress passed in 1792, for the guidance of consuls in foreign countries, giving them certain powers and author- ities so far as is consistent with the law of the country to which they are accredited; that is, the power of the consuls is to be governed by the law of the country to which they are accredited, and not by the law of the country from which they are sent. There may be grave reasons why the law of the United States should be different from the law of this country, but if there is a difference, then no authority at all is given to the consuls. The question, therefore, is not whether the law of America authorizes the consul to take posses- sion of the property of its sub-(247)jects dying in this country, but whether the law of this country permits it, and it is upon the groimd that it does so, that Colonel Aspinwall applies for letters of adminis- tration. I am not aware of any case in which it has been held that, by the law of this country, it is competent to a foreign consul to take pos- session of the property of a foreigner dying here, in itinere, domiciled in his own country. In the case of Sidy Hamet, the emperor of Morocco claimed not the custody of the property but the interest it- self ; the jus in re was in him, and if it could be shewn that the property in this case has devolved to the American government, the court would be inclined to grant letters of administration to the con- sul. But it is only to hold it in trust, and if no claim is made to the property, then the treasury of the United States would be entitled 21 CONSULAR CASES to take it, ancl it is not she\\ii that Mr. Hammond died without rela- tions. Is it, thon, the \a\\ and practice of this court, that such an admin- istration should be granted? I apprehend not, and that the crown is the party to see that the property of any person dying in its dominions gets into proper hands. It has been said, that by the law of the United States, British consuls may take possession of the property of British subjects in similar circumstances. But this is not by the law of nations, but by custom or express enactment, and it is not a law which this country is boimd to follow : this country has not adopted the principle of reci- procity in this respect. I am of opinion that there is not sufficient evidence to shew that the administration ought to be (248) granted, as prayed, to Colonel Aspinwall, and I reject his petition. No claim is made by the crown. ATLANTIC, THE, (1849, U. S.) Abb. Adm. 4.51; Fed. Cases 620. Betts, Circuit Court. (462) BETTS, J: (Extract) The libellant shipped at New Lon- don in July, 1845, as carpenter's mate, on a whaling voyage. In consequence of injuries received by him, in the discharge of his duty, he was taken on shore in the port of Lahaina, in the island of Maui, one of the Sandwich Islands, and left in (463) the hospital there. The ship proceeded on her voyage, and after completing her cruise, touched at Maui, on her return home, and received the libel- lant on board, he being placed there as a sick and disabled seaman by the consul, and was brought to the L^nited States, the master receiving $10 passage money from the consul therefor. The libellant now demands wages for the Avhole voyage, together with the expenses of his cure. There are di.sagreements in several particulars between the statements of the libel and those of the answer, but they do not es- sentially affect the points upon which the cause turns, and accord- ingly no time will be spent in the consideration of them. The questions in the case are three: Was the lihfllant discharged from the ship at Maui, so as to terminate the shi7)ping contract, and exempt the vessel from all fur- ther liability in consequence of his shipment? Was the condition contained in the shipping articles, limiting the libellant 's compensation or wages to the time he was actually on 22 CONSULAR CASES board and capable of rendering the services he contracted to perform, a legal condition and obligatory upon him ? Is the ship chargeable with the expenses of the libellant's cure? and if so, to what extent? 1. It is incumbent on the claimants to set forth in their answer, a state of facts justifying the discharge of the libellant in a foreign port, and to support the allegations by competent and sufficient proofs. They plead that the libellant, on March 16, 1846, fell from the topsail yard of the ship through want of sufficient care on his part, and was so severely injured by the fall, and became so sick in conse- quence of it, that he was rendered unable to perform his duty on board, and was, at his own request, and by order of the captain, and by aid of the consular agent, placed in the hospital. That on March 18th, he was dis- (464) charged from the ship by his own consent, and by the consent and authority of Giles Waldo, the United States consul at that port, the master of the ship having produced to the consul the list of the ship's company, certified according to law, and having paid to the consul the sum of $36, being three months' wages to the libellant. The evidence to support this discharge is a certificate, — repre- sented to be under the consular seal, but the impression of the seal is too faint to admit of its being deciphered, — attached to the articles, and expressed in these terms : United States Consular Agency, Lahaina, Hawaian Islands. "I, the undersigned U. S. consular agent, do hereby certify, that George Stotesburg has been discharged from ship Atlantic on account of sickness and in accordance with the laws of the United States. "Given under my hand and seal this 18th day of March, 1846. Giles Waldo, U. S. Consular Agent. "By A, H. Linigsyez," (or some other similar name, not easily determined from the signature.) On another paper a memorandum or account is made in this form : Ship Atlantic and owners to U. S, Consulate. 3 months ' wages to Stotesburg, $36 00 Certificate, 2 00 Lahaina, March 18, 1846." $38 00 Eec'd payment, (Signed as above.) 23 CONSULAR CASES These papers are all the evidence produced to support the allega- tion of the answer, that three months' wages had been (465) paid to the commercial agent, and that the discharge had been given under the authorization of the act of congress of February 28, 1803. 5 U. S. Stats. 396. The discharge, however, manifestly was not made in conformity with the provisions of the statute; for the cardinal requisite to the exercise of that authority is, that application for the discharge shall be made by both the master and mariner; and it is not even certified that the consular agent acted on any such application; on the con- trary- the proofs import that the libellant was sent ashore by direction of the master, and under expectation that he still remained connected with the vessel as if he had continued in her. The court cannot assume that the assent of the libellant to his discharge was given, merely upon the fact of his being left in a hospital in his then maimed and dan- gerous condition; nor upon the assertion of the person acting for the consular agent that the libellant was discharged from the ship in accordance with the laws of the United States. It is unnecessary to inquire, whether an averment in such certificate that consent was given by the seaman and master in the presence of the consul, or was proved to him, would justify the discharge without other evidence of the fact, because the certificate contains no such allegation. Indubi- tably the particular which gives authority to consuls to act in this behalf under the statute, must be duly established, or his proceedings will be a nullity. This is a special power and trust confided to con- suls and commercial agents, and must be exercised by those officers strictly in pursuance of the directions of the statute. Nor can the payment of $36 wages made to the consul by the master, be accepted as a payment of the three months' w^ages pre- scribed by the act. The hiring was for a share of the takings on an entire whaling voyage; and the rate of the lays could not, by the method of apportionment appointed in the articles, be applied with any justness to the period of service which had then elapsed. The ves.sel was on her outw'ard (466) cruise to the fishing grounds, and it would be evidently unjust to measure the compensation of the libel- lant by lay shares out of the chance takings on that part of the cruise. The takings of the entire voyage was the basis upon which the libellant 's share should be computed. Twelve dollars per month was evidently adopted as an arbitrary allowance of wages. It might chance to be more advantageous to the libellant than his lay of the earnings of the adventure, apportioning the time he was in the ship with the entire duration of the voyage. Still, it might be disproportion- ately short of his share. And it certainly was not competent to the 24 CONSULAR CASES master and consular agent to determine that matter without the clear undersanding and concurrence of the libellant. I think, therefore, that there is not in this discharge that conformity with the require- ments of the act of 1803, which will uphold it to protect the ship. Jay V. Almy, 1 Woodb. & M. 271/ The act of July 20, 1840, (5 U. S. Stats. 394, C. 48, §§ 5, 6, 9,) empowers consuls and consular agents abroad, to discharge seamen from their contracts or their ships, and to exact the payment of three months' wages, or even more, or to dispense with it as in their judg- ment they may think expedient. This power can be exercised but in two cases, — upon the application of both the master and the mariner, or upon that of the mariner alone. The master can act in the matter only jointly with the mariner. And it is not enough for the consul to certify that he gave the discharge "lawfully," or that he gave it "in accordance with the laws of the United States." It must be made to appear upon what grounds he proceeded. The court cannot intend that it was on the joint request of the master and sea- man ; nor that it was on the sole application of the latter, nor even that one or other ingredient of fact actually existed. The power imparted to consuls is limited and specific in character, not appertain- ing to him virtute officii, (467) but conferred by a statutory provi- sion ; and the law raises no presumption or intendment in support of his doings, until it is shown that his jurisdiction attached to the sub- ject, — that a case had occurred falling within the scope of his powers. The rule is coeval with the existence of statutory or limited tribunals or officers, that their doings must be made to appear to be within their authority, and that nothing can be supplied in support of their jurisdiction by intendment. 1 Co. Inst. 117 ; 2 Co. R. 16 ; 1 Lilly, Abr. 371; 1 Levinz, 104; Powers v. The People, 4 Johns. 292; Atkins v. Brewer, 3 Cow. 206 ; Grignon v. Astor, 2 How. 319 ; Bennett v. Bush, 1 Den. 141. Nor is it sufficient for the officer to aver ever so positive- ly his jurisdiction. He must set forth the facts necessary to confer it, and those jurisdictional facts must be established by proof. The People V. Koebar, 7 Hill, 39, and cases cited. I do not discuss the question raised respecting the sufficiency of the proof, that Giles Waldo was the consular agent of the United States at Lahaina, or that the gentleman who has subscribed the act for him, was his legally authorized substitute. Admitting that the seal of the consulate imports a legal authority in the person using it to do all official acts appertaining to the office, still the case calls for the remark, that the papers should present a distinct impression of a seal so that it may be identified and discriminated. The paper before ^ Compare Hutchinson v. Coombs, Ware, 65; also Minor v. Harbeck, post. 25 CONSULAR CASES the court does indeed bear a faint similitude of a seal, but neither vig- nette nor motto is distinguishable; and the vague flourish employed for a signature, affords no means by which the authentication of the discharge can be verified.^ AUBREY. IN RE, (1885, U. S.) 26 Fed. Eep. 848. Pardee, Circuit Court. On application for a writ of habeas corpus. PARDEE, J: The relators are held by the keeper of the parish prison under a commitment from one of the commissioners of this court, purporting to be in compliance with section 728, Rev. St., and based (849) on a petition of her Britanic majesty's consul, alleging that by virtue of the authority conferred upon him by law as such consul, to sit as judge in a controversy between a seaman of the crew of a British ship and the captain and others of the crew thereof, he has made a decree that one John "W. Dakin, Frank Aubrey, and Al- fred G. Bardo, all of the British ship Lancefield, be sent to the United Kingdom for trial for an offense committed in the said United King- dom, and which cannot be tried by any court of the United States or of the state of Louisiana; and concluding with a prayer that the aforesaid Dakin, Aubrey, and Bardo may be imprisoned in the prison of this parish, and held there until the aforesaid decree can be put in force, as is provided by section 728 of the Revised Statutes. It is made to appear on the argument that the alleged offense was assault and battery committed on board a British ship in the port of Cardiff. It is probable that the commitment, and the petition on which it is based, are technically defective, the petition particularly, in not being more specific, but as new process could be at once issued, and the parties rearrested, and as the argument has been over the merits of the case as though the commitment and petition were com- plete, we will consider the case on its entire merits. The relator's counsel contend that whether the offense alleged against relators was committed in or out of the United Kingdom, on the high seas or in port, the decree rendered by the consul was not made or rendered by him by virtue of an authority conferred on him by British law as such consul, to sit as judge or arbitrator in such dif- ferences as arise between captains and crews of British vessels, and they rely upon the British shipping acts. * That a regular and valid consular discharge, properly certified, is con- clusive on all points duly passed upon by the consul, unless his conduct be proved corrupt or fraudulent, see Lamb v. Briard, ante, 367; Tingle v. Tucker, decided April, 1849, reported post, in its order. 26 CONSULAR CASES In passing upon the question, it is immaterial to consider whether the naval court provided for by the British shipping act was the proper tribunal to try the relators for their alleged offense; whether extradition could have been resorted to, or whether the al- leged consular action was proper and discreet, under the real facts in the case. The offenses within consular jurisdiction, under the British merchant shipping acts, are offenses committed out of the United Kingdom. But it appears that the said acts only include or embrace the statute law relating to British merchant ships and sea- men, and that the common law of Great Britain, except when altered by statute, remains still in force for the government of consuls. See paragraph 1, Book of Instructions, infra. The consular jurisdiction in relation to the offenders against British law on board British ships, imder both statute law and common law, has been proved in this case by the evidence of the consul, himself an English barrister at law, to be as found in a book entitled ''Instructions to Consuls Relating to Matters Affecting the British Mercantile Marine," prepared by the board of trade, and approved by H. M., secretary of state for foreign affairs of date 1883. Paragraph 189 of said instructions reads as follows : (850) "Upon a complaint being made to the consul of any offense against British law having been committed on the high seas, or if, without complaint, he becomes aware of any serious offense having been committed on board of a British ship, he may inquire into the case upon oath, and may summon witnesses before him for that pur- pose, and if there is evidence which, in the opinion of the consul, is sufficient to substantiate the charge, he may send the offender to some place in the British dominion at which he can be tried, ' ' etc. The high authority issuing and indorsing the said book of in- structions should remove any doubt as to whether it is in accordance with British law. See Dainese v. Hale, 91 U. S. 13; and, under the paragraph cited, the jurisdiction of the consul in the case in hand seems to be clear. At all events, when the British consul in a mat- ter of discipline, is dealing with British subjects on board of a Brit- ish ship, we are not called upon to look for his jurisdiction further than the instructions issued by the British foreign office. Conceding, therefore, the jurisdiction of the consul under British law, it remains to determine whether section 728, Rev. St., warrants the commitment issued by the commissioner in the present case. The statute was originally passed to enable our government to carry out its treaty stipulations Avith Prussia and other countries. See 9 St. at Large, 78. In the revision of the statutes the preamble is omitted, and the application of the statute seems to be enlarged so as 27 CONSULAR CASES to embrace the consular agents of all nations; and it does embrace all consular agents "svhose governments give them jurisdiction, unless the statute is so construed as to hold that the authority conferred upon suoh consular agents to sit as judge or arbitrator, etc., men- tioned in the statute, refers to and is limited to authority conferred by the consent of the United States. Such a construction is strength- ened by the original preamble to the statute, and by the fact that sections 4079, 4080, 4081, Rev. St., (which precisely provide, under limitations and restrictions looking to the protection of citizens of the United States, for enforcing the judgments, orders, and decrees of consular officers,) are limited, in terms, to such officers of foreign nations as are entitled thereto, under treaty stipulation with the United States, and then only when such foreign country gives the same privilege, to consular officers of the United States, the latter fact to be ascertained and proclaimed by the president. Unless such claimed construction shall be given as to the authority necessary under section 728, it would render sections 4079, 4080, and 4081 practically nugatory, because section 728 in itself is so broad that all action in enforcing decrees of consular officers could be had thereunder, and the restrictions and limitations provided for in other sections of the statute avoided, and besides, foreign nations with whom we have no treaty stipulations would stand on as good, if not on a better, footing than those nations to which the United States is bound by treaties of reciprocity and commerce. The rule that the several sections of the statutes should be construed together, and harmonized, if possi- (851) ble, also leads to the suggested construction of section 728, and we are inclined to adopt it in this case. The facts of this case, however, as they are admitted, suggest a doubt whether either or any of the sections of the statute referred to authorize the action of the commissioner, and justify the commit- ment issued by him. The case, as submitted, does not show any dif- ference between the captain and the crew of any vessel, although it is alleged as the source of the consul's jurisdiction; but rather, it shows that the relators are charged with an offense against the laws of Great Britain committed in the United Kingdom; and this goes still further to show that the construction claimed for section 728 is too broad, because under such construction, in some cases, it may be made a substitute for our extradition laws, and permit the extradition of al- leged fugitives from justice without the performance of such condi- tions as congress has seen fit generally to guard that important mat- ter. See section 5270, Rev. St. et seq. As a matter of law, foreign consuls have no jurisdiction within the territory of the United States except by force of treaty stipulations. 28 CONSULAR CASES See Wheat. Int. Law, 217. The judicial power of a consul depends upon the treaties between the nations concerned and the laws of the nation the consul represents. Dainese v. Hale, 91 U. S. 13. See The Elwine Kreplin, 9 Blatchf. 438. Consular jurisdiction depends on the general law of nations, subsisting treaties between the two govern- ments affected by it, and upon the obligatory force and activity of the rule of reciprocity. 2 Op. Atty. Gen. 378. We conclude, therefore, that neither under international law, nor under the statute law of the United States, has a consular officer of a foreign government a right to sit as judge or arbitrator within our territory, and render decrees or orders affecting personal liberty, which orders or decrees the courts of the United States are author- ized or required to enforce, unless the consent of the United States to such jurisdiction has been given, either by express statute or treaty stipulation. So far as the claim is made that the relators should be held in a spirit of comity and reciprocity, we can only say that the comity and reciprocity to be extended to representatives of foreign governments depends upon congress, and is not lodged within the judiciary. See 2 Op. Atty. Gen. 378, citing The Nereide, 9 Cranch, 389. The writ of habeas corpus should be made absolute, and the rela- tors discharged, and it is so ordered. After the reading of the decision, Mr. Florence, representing the British consul, asked the court to detain the prisoners for a brief period until he could consult the consul as to whether an appeal would be taken. The request was granted, but no one appearing within a reasonable time, the men were set at liberty. BOARMAN, J., concurs. AYCINENA, IN THE MATTER OF, (1848, U. S.) 1 Sand. 690. By the Court, New York City Superior Court. BY THE COURT : The objection to the form of the statement presented to us, is untenable. The form is of no consequence. The fact is alleged, and is undisputed, that the party is the consul general of the republic of Guatemala; and that is sufficient to call upon the judge, to determine whether he will or will not further entertain the proceeding. The question is, whether under the judiciary act of congress, this attachment can be sustained. By that act, the jurisdiction of all suits against consuls, is vested exclusively in the district court. Is this a suit, within the meaning of the judiciary act ? Having reference to the provision in the constitution of the 29 CONSULAR CASES United States, and its objects, together Avith the good sense of the thing, we are constrained to say that this is a suit, within the act of congress. One object was to prevent the harassing of foreign min- isters and consuls in the state courts. The foundation of this pro- ceeding by attachment is a debt, and it seeks the recovery of the debt from this consul, through the coercion of a state tribunal. It is there- fore a suit, in the sense in which that word is used in the judiciary act, and the attachment must be discharged. We are asked to award costs to the consul, but we find no author- ity for giving costs. Indeed, there is no ground for it, as it is not shown that the attaching creditor knew of the privilege now inter- posed. Attachment discharged. AZOGUE V. UNITED STATES, (1891, U. S.) 26 Ct. CI. 430. Davis, Court of Claims. (432) DAVIS, J., delivered the opinion of the court: Plaintiff, a resident of Philadelphia, was employed by "William Reed Lewis, then recently appointed consul at Tangier, "as an in- terpreter and general body ser^'ant at the L^nited States consulate at Tangier, at a salary of $30 (United States money) per month, be- ginning February 19, 1887. It is agreed that after the expiration of ten months from February 19, 1887, the salary is to be decreased to $20 per month. It was further understood and agreed that Azogue should "pay his ovm board and traveling expenses." In 1888 or 1889 (the testimony is conflicting as to the date) a difference arose between the consul and plaintiff, which resulted in severing their relations. This action is now brought against the United States for payment of plaintiff's wages from April 1, 1888, to August 31, 1889, when, ac- cording to his theory of the case, the separation took place. We must first discover whether the United States were a party to any contract with plaintiff. The agreement signed by the consul and plaintiff negatives such an inference, as it shows that "William Reed Lewis, a citizen of the state of Pennsylvania, U. S. A.," not William Reed Lewis as consul, agreed to employ and pay the plaintiff, describ- ed as "Ramon Azogue, a citizen of the United States," who upon his part agreed "to perform all duties assigned to him to the best of his ability;" that is, duties assigned to him "by the party of the first 30 CONSULAR CASES part," who was the aforesaid "citizen of the State of Pennsylvania, U. S. A," Further, the contract was to be "terminated at any time by either party on thirty days' notice." The contract, on its face, was between private individuals, and it provided for two kinds of service, one of which is not compensated by the government, to wit, that of a "general body servant;" and it was terminable upon notice, which the government never stipulates to give to a subordinate civil employe, and which it does not require from him; nor was a govern- ment officer to terminate it, but to Lewis, personally, was reserved that power; it was not given to the consul, who might be another in- dividual, or to the vice consul in the consul's absence, much less was it reserved to a superior officer. There is nothing in the agreement showing an intention or desire to bind the United States; there is in it every mark of a purely private and personal transaction. (433) The employment of Azogue as interpreter in the consulate at Tangier was not reported to the department of state by the consul otherwise than by including his name in his quarterly accounts and in the list of employes of the consulate. The department of state neither authorized nor forbade, neither approved nor disapproved, the selec- tion; it simply assigned to the consul a certain sum of money with which he could pay an interpreter — any interpreter he chose to employ. Section 26 of the Consular Regulations of 1888 provides for sal- aried interpreters at certain posts (see Rev. Stat., 1678 to 1680, 1692, 1693, 1740), the expenditure required to be made under the direction of the secretary of state, and Tangiers is not one of those posts. This section recognizes as a fact that some of the interpreters are ap- pointed directly by the president and that those at the more im- portant posts receive a commission. The plaintiff received no ap- pointment from any officer of the government in Washington, and his only commission was the personal agreement we have already cited, an agreement which it is safe to assume would not have received the approval of the department of state had it been brought to the attention of that department. The same section of the regulations recognizes that the duty of nominating an interpreter is intrusted to the head of the consulate, and Azogue was never nominated as in- tei*preter to the department of state. Section 42 of the regulation and sections 1756 and 1757 (23 Stat. L., 22) of the Revised Statutes require the interpreter to take the oath of office. It does not appear that plaintiff took that oath. (See also §§ 43, 532, regulations; see. to the same effect, regulations, 1881, §§ 5, 22, 37, 38, 39, 66, 67, 114, 425.) The regulations of 1881 were in force when the contract in suit 31 CONSULAR CASES was made. They contained substantially the same provisions as the regulations of 1888. The only statuton'^ recognition of an interpreter at Tangiers is contained in appropriation acts. Thus, in the diplomatic and con- sular appropriation act, approved July, 1886, under the head of "contingent expenses, foreign missions" (although the post at Tan- giers is not a mission, but a consulate) appears this clause: "For the purpose of enabling the president to provide, at the public expense, . . . for rent, postage, telegrams, furniture, messenger service, clerk hire, compensation of cavasses, (434) guards, drago- mans, and porters, including compensation of interpreter, guards and Arabic clerk at the consulate at Tangiers," etc. (24 Stat. L., 108; also 24 Stat. L., 480; 25 Stat. L., 248; Stat. L., 698.) The same provision occurs in subsequent statutes, the only dif- ference being that in two of the acts the word "janitors" appears before the words ' ' and porters. ' ' The department of state thereupon allowed the consulate at Tangiers the sum of $800 per annum (dur- ing the period covered by this action) "for interpreter, guards, and Arabic clerk," out of which the interpreter was paid at the rate of $280 a year. Therefore, in the appropriation acts and by the department of state, the interpreter was classed among the subordinate employes of the consulate whose tenure depended upon the will of the consul. He fell into the same category as the clerks, guards, cavasses, janitors, and porters, who are employed and discharged by the consul as he may find them needful to the consulate or satisfactory to him in service. The supervision exercised by the department of state over this cla.ss of employes is limited to the allotment of the proportionate share of the total appropriation for contingent expenses, to care that the allotment is properly expended, and it holds the consul responsible for the conduct of his consulate — that is, for the acts of his subordi- nates. The secretary of state would not and could not, in practice, indicate the individuals to be employed as clerks, janitors, cavasses, or porters in all the consulates entitled to such service. The small sum allowed the consulate at Tangiers would not be alone sufficient to support an interpreter, and it must be assumed that the department contemplated either that he should be allowed to engage in business under the exception provided for in section 425 of the regulations of 1881, and the department gave no such author- ity, or, what is more likely, that the consul should not employ continu- ously an interpreter, but only from time to time, as the services might become necessary, when payment was to be made for the time when the interpreter was actually employed. 32 CONSULAR CASES The consular regulations (§§ 28, 29, and 484, of 1888; see also regulations 1881, §§ 24, 25, and 70) leave the appointment of office clerks to the consul's discretion, with a reservation to the department in special cases; the other classes of subordinates (435) are not men- tioned in the regulations, and their employment, therefore, rests with the head of the consulate in the absence of action by the department. We conclude that the agreement between Azogue and Lewis was a contract between individuals, to which the United States were not a party. There is, however, another difficulty in plaintiff's way. His con- tract was for double service, for which he was to be paid at first $30 a month, later $20 a month, he to pay his own board and traveling ex- penses ; the services to be rendered for this emolument were first those of a body servant (without board or traveling expenses), for which the United States never pay, and second those of interpreter. The court is quite unable to determine (even if plaintiff's contention as to the law be correct) what proportion of the monthly allowance of $30 or $20 should be given for the one service and what for the other; and as he contracted for the two inconsistent services, he can not re- cover the total ($280) allowed by the department to the consul for an interpreter, without showing, which he has not done here, that his agreement with that officer contemplated that this sum was to be paid for his services as an interpreter alone. Petition dismissed. BAIZ, IN EE, (1890, U. S.— Honduras) 135 U. S. 403; 10 Sup. Ct. Eep. 854. Fuller, Supreme Court. On petition for a writ of prohibition or mandamus. On the 29th day of June, 1889, an action was commenced by one John Henry Hollander in the district court of the United States for the southern district of New York against Jacob Baiz, (see 41 Fed. Rep. 732,) to recover damages for the publication of an alleged libel upon the plaintiff, and a summons was served upon him on the 2d day of July of that year. The defendant entered a general appear- ance in the action, which was filed July 17, 1889. On the 25th day of September, 1889, the defendant verified his answer, which con- tained a plea to the jurisdiction of the district court in the follow- ing language : ' ' The defendant alleges that he is now, and ever since the month of Julj'', 1887, has been, the consul general of the republic of Guatemala at the city of New York, and that in or about the month of May, 1889, he received from the republic of Guatemala a 33 CONSULAR CASES duly-authenticated copy of a decree in the English language, dated at the national palace in Guatemala, May 14, 1889, with instructions in writing from said government to publish the same in the news- papers of the United States, and which said decree had previously been published in the official Gazette, or newspaper, published in said republic, and that pursuant to such instructions, which were sent to him both by letter and by cable, and not otherwise, he did, on or about the 9th day of June, 1889, send to the managers of the Asso- ciated Press, in the city of New York, said authenticated copy of said decree, stating that it was possible that said managers would find it of sufficient interest to publish. That prior to the 16th day of Januarj% 1889, one Senor Don Francisco Lainfiesta was envoy ex- traordinary and minister plenipotentiary of the republic of Guatemala in the United States, and on or about that day he departed from the United States upon a temporary leave of absence, duly granted to him, and that from on or about that day, down to on or about the 10th day of July, 1889, this defendant became and was the acting minister and sole representative of the said republic of Guatemala in the place, and during the absence, of the said envoy extraordinary and minister plenipotentiary, and was exclusively in charge of the diplomatic af- fairs of the said republic in the United States. And by reason of the facts herein alleged this defendant claims that this court has no jurisdiction of this action, and that, if any jurisdiction for said act in fact exists in any court, it is vested solely in the supreme court of the United States, pursuant to the provisions of the constitution and the statutes of the United States in such case made and provided." In January, 1890, a motion was made ' ' for an order setting aside the service of the summons and all subsequent proceedings in the action, and that the court dismiss the same, on the ground that it has no jurisdiction of this action, and had no jurisdiction over the defendant at the time of the commencement thereof." This motion was based on the defendant's affidavit, and upon proofs consisting of original written communications from the state department to Baiz, and of duly-certified copies of papers on file in said department; and was resisted by the plaintiff on certain affidavits, and an original letter from the department. On the 17th day of February the motion was denied, and an application was then made to this court for a rule to show cause why a writ of prohibition should not issue to the judge of the district court, prohibiting him from proceeding further in said action ; or, if a writ of prohibition could not issue, then for a rule to show cause why a writ of mandamus should not issue, com- manding the judge to enter an order dismissing the cause, for the reason that the jurisdiction of said action existed solely in the su- 34 CONSULAR CASES preme court, under the constitution and laws of the United States; or for such other and further relief as might be proper in the prem- ises. The application was made upon the petition of the defendant in the action in the district court, and annexed to the petition and forming a part of it was a certified copy of the entire record in the dis- trict court, including every paper used upon the motion, and the opinion of the court. A rule having been issued, the judge of the district court returned thereto that the motion was denied upon the facts and considerations appearing in the record and opinion, copies of which were attached to the petition, and to the order to show cause, and submitted to this court whether the district court should take further cognizance of the said cause, or should dismiss the same. It appeared before the district judge, as it does here, that Mr. Baiz was and is a citizen of the United States, and a resident of the city of New York, and that he has been since 1887 consul general of Guatemala; that Senor Lainfiesta was, on the 16th day of January, 1889, the minister of Guatemala, of Salvador, and of Honduras, in the United States, and that on that day Senor Lainfiesta addressed a note to the secretary of state, advising him that he was compelled to go to Guatemala for a short time, and saying: "Meanwhile I beg your excellency to please allow that the consul general of Guatemala and Honduras in New York, Mr. Jacob Baiz, should communicate to the office of the secretary of state any matter whatever relating to the peace of Central America that should without delay be presented to the knowledge of your excellency." The secretary of state, ac- cordingly, on the 24th day of January, informed Senor Baiz, ''consul general of Guatemala and Honduras," that the note of Minister Lain- fiesta had been received, and that he would "have pleasure in re- ceiving any communication, in relation to Central America, of which you may be made the channel, as intimated by Senor Lainfiesta. ' ' On the 6th of March, 1889, Mr. Blaine having been appointed secretary of state, information of that fact was communicated by him to "Senor Don Jacob Baiz, in charge of the legations of Guatemala, Salvador, and Hunduras," the receipt of which was acknowledged by the lat- ter under date of March 7th, the note of reply being signed, "Jacob Baiz, Consul General." April 1st. the secretary of state addressed a communication to "Senor Don Jacob Baiz, in charge of the busi- ness of the legations of Guatemala, Salvador, and Honduras," inform- ing him of the appointment of Mr. Mizner as envoy extraordinary and minister plenipotentiary of the United States to the republics of Guatemala, Salvador, and Honduras, and asking him to "kindly apprise the governments of Guatemala, Salvador, and Honduras" of the appointment. In the official circular issued by the department of 35 CONSULAR CASES state, "corrected to June 13, 1889," concerning the "foreign lega- tions in the United States," imder the heads of Guatemala, Salvador, and Honduras, mention is made of the absence of Mr. Lainfiesta, and a foot-note is referred to which reads "Jacob Baiz, consul general, in charge of business of legation. New York city. ' ' That circular ^•hows that Russia, Austria, and Corea w^ere represented by ministers who were absent, and had charges d' affaires ad interim, whose names are severally given, described as such, and the dates of their presentation. Brazil and Venezuela had no ministers, but were represented by a charge d' affaires or a charge d' affaires ad interim, the name of the incumbent and the date of his presentation beiag given in each of these instances. Portugal had no minister, and the name appears of "Baron d' Abueirim, consul, and acting consul general, in charge of business of legation," and the fact and date of his presentation. Consul General Baiz is alone referred to in a footnote, and is not shown to have been presented. Senor Lainfiesta did not return as minister, and on or about the 10th day of July, 1889, Dr. Fernando Cruz arrived in this country, and was presented by the secretary of state to the president as the envoy extraordinary and minister pleni- potentiary of the republic of Guatemala to the United States. Mr. Baiz answered in the action brought by Hollander, Septem- ber 25, 1889. On the 3d of October, 1889, counsel for the plaintiff addressed to the state department a letter in which he inquired who was the minister of the state of Guatemala from January to August, 1889; and received an answer under date of October 4, 1889, signed by the second assistant secretary of state, as follows : "I have to ac- knowledge the receipt of your letter of the 3d inst., and to say in reply that Senor Fernando Cruz presented his credentials as the envoy extraordinary and minister plenipotentiary of Guatemala here, July 11, 1889. I'rior to that Senor Lainfiesta was the accredited and recognized minister, but had been for some time absent from the United States. During his absence the business of the legation was conducted by Consul General Baiz, but without diplomatic character." On the 11th of January, 1890, Senor Cruz sent the following com- munication to the state department: "Mr. Michael H. Cardozo, counsel for Don Jacobo Baiz, in the suit which has been brought against the latter by Mr. J. H. Hollander in New York, presented to your excellency a brief of the facts in the case, and made applica- tion to you to be pleased to order that he be furnished with a certain certificate in regard to the character of Mr. Baiz during the absence of Don Francisco Lainfiesta, and until I arrived to take his place. It being urgent to possess this document, since the day approaches to make use thereof, and the government of Guatemala having instruct- 36 CONSULAR CASES ed Mr. Baiz to make the publication upon which the suit is brought, under the belief that he was its representative in this country from the day of Senor Lainfiesta's departure, I take the liberty of begging your excellency to be pleased to order that the certificate applied for by Mr, Cardozo be issued as soon as possible, and sent to me in order that I may forward it without loss of time." The acting secretary of state replied January 21, 1890, aclmowledging the receipt of Senor Cruz's note of the 11th, and continuing thus: "The facts are that on January 16, 1889, Mr, Lainfiesta informed the department of his proposed departure from the United States for Guatemala on a leave of absence. In conveying this information to the secretary of state, Mr. Lainfiesta said: 'In the mean time I beg your excellency to permit Mr. Jacob Baiz, consul general of Guatemala and Honduras at New York, to communicate to the department of state any informa- tion connected with the peace of Central America that may be of sufficient importance to be brought without delay to your excellency's notice. ' Referring to this note the department, on January 24, 1889, wrote to Mr. Baiz, saying : ' The secretary of state will have pleasure in receiving any communication in relation to Central America, of which you may be made the channel, as intimated by Senor Lain- fiesta. ' The next communication of the department to Mr. Baiz bears date March 6, 1889, in which he was informed of the accession to ofiice of the present secretary of state, which Mr. Baiz acknowledged on the following day. On April 1st, 1889, the department addressed a com- munication to Mr. Baiz, 'in charge of the business of the legations of Guatemala, Salvador, and Honduras,' in which he was informed of the recall of Mr. Henry C. Hall as envoy extraordinary and minister plenipotentiary of the United States to the republics of Guatemala, Salvador, and Honduras, and of the appointment by the president, by and with the advice and consent of the senate, of Mr. Lansing B. Mizner to that post. Mr. Baiz was requested to apprise the respective governments of this appointment. This communication Mr, Baiz ac- knowledged on April 2d, 1889, On May 17th, 1889, Mr, Baiz an- nounced to the department your appointment by the government of Guatemala as its minister plenipotentiary at this capital in place of Mr, Lainfiesta, which was duly aclmowledged by the department on the 20th of the same month. Subsequently, correspondence took place between the department and Mr. Baiz in relation to your entrance into the United States, and to your reception as minister. On June 14, 1889, Mr. Baiz inclosed to the department an autograph letter from the president of Guatemala, dated May 20, 1889, to the presi- dent of the United States, relative to the recall of Mr. Hall as United States minister to the states of Central America, Of this communica- 37 CONSULAR CASES tion the departmeut acknowledged the receipt, on June 25, 1889. This, it is believed, is a correct resume of the facts in regard to Mr. Baiz's action as the representative of Guatemala in the absence of her duly accredited minister from the United States," After the return to the rule, counsel appearing in opposition to granting the ^v^it moved for an order that the petitioner show cause why certain papers presented by him should not be submitted for the consideration of the court in the determination of the matter; and the petitioner, after objecting to the granting of the order, and protesting against the receipt of the papers, submitted certain papers on his part. These papers taken in chronological order are as follows: A letter dated February 2, 1886, from the minister of foreign affairs of the republic of Honduras to Mr, Baiz, transmitting an appointment as charge d' affaires of the republic of Honduras to the government of the United States, and hoping that he will accept said appointment, "filling it to the best interests of the country, endeavoring principally to prevent filibustering expeditions," etc. Accompanying it was a communication addressed to the state department, under date of Feb- ruary 1, 1886, and conveying information of the fact of the appoint- ment. This was presented to Mr, Bayard, then secretary of state, who replied on the 22d of March, 1886, as follows: "Agreeably to the promise made to you in person recently by Assistant Secretary Porter, I have considered the questions involved in your nomination as charge d' affaires of Honduras in the United States, A difficulty arises in the fact stated by you to Mr. Porter, that you are a citizen of the United States, It has long been the almost uniform practice of this government to decline to recognize American citizens as the accredited diplomatic representatives of foreign powers. The statutory and jurisdictional immunities, and the customary privileges of right at- taching to the office of a foreign minister, make it not only inconsist- ent, but at times even inconvenient, that a citizen of this country should enjoy so anomalous a position. The very few past exceptions to this rule have served to show its propriety, especially when, as in your case, it has been sought to supplement the consular functions (which an American citizen may, if otherwise acceptable, hold with perfect propriety) by an added diplomatic rank and function. Were it merely a question of conducting public business with you as the de facto charge d' affaires ad interim during the absence of a regularly accredited envoy of Honduras, there would be little difficulty. In fact, you now stand on that footing for all practical purposes, since the department of state corresponds with you as consul general, upon whatever diplomatic business may arise ; but it is to be borne in mind that this is done because the office of the envoy is for the time being 38 CONSULAR CASES unfilled. Your substitutionary agency is cheerfully admitted, but this is different from recognizing you as invested with the diplomatic character as the incumbent of the mission. While this motive would alone constrain me, although with regret, from acceding to the ex- pressed desire of the government of Honduras, and receiving you as its diplomatic representative, I find another consideration in the phraseology of your official letter of credence." The secretary then considers the objection arising out of the fact that the instrument "announces that the office of charge d' affaires is conferred upon you for the express purpose of negotiating with this government to pre- vent the organization in the United States of hostile expeditions against Honduras, and causing certain persons named therein to be put under bonds 'not to contrive in any way against the peace of Honduras.' " The letter of credence, and also the letter of the Hon- duranean minister of foreign relations, were returned. On the 24th day of March, 1886, consul general Baiz acknowledged the receipt of the despatch of the 22d, and said : "I will lose no time to inform the government of Honduras of our correspondence, and that your ex- cellency has kindly consented to admit my substitutionary agency in the absence of the minister, by virtue of my being the consul general. I thank you for this recognition, the extent of which I appreciate ; but in order to fully satisfy the goverment of Honduras, which has conferred this honor on me, I take the liberty to ask whether, in the absence of a minister, the state department will con- sider the consul general charge d' affaires ad hoc, or as diplomatic agent of Honduras, for all practical as well as official purposes, with- out relieving me of duties and responsibilities incumbent on a citi- zen of the United States. The declination of the state department of my credentials, on the ground that they express a purpose of a negotiation not admissible under the laws of the United States, will, no doubt, be satisfactory to the government of Honduras." On the 3d day of April, 1886, the secretary of state answered the inquiry of Mr. Baiz in these words : "I have received your letter of the 24th ultimo, in which, after referring to the willingness expressed in my letter to you of the 22d March to admit, in the absence of a minister of Honduras, your substitutionary agency in virtue of your office as consul general, you inquire ' whether, in the absence of a minister, the state department will consider the consul general charge d'affaires ad hoc, or as a diplomatic agent of Honduras, for all practical as well as official purposes, without relieving' you 'of duties and responsibil- ities incumbent on a citizen of the United States.' In reply, I have to inform you that it is not the purpose of the department to regard the substitutionary agency, which it cheerfully admits in your case, 39 CONSULAR CASES as conferring upon you personally any diplomatic status whatever. Your agenc}"^ is admitted to be such only as is compatible with the continued existence of a vacancy in the diplomatic representation of Honduras in the United States. To recognize you as charge d'affaires ad hoc would be to announce that the vacancy no longer existed, and that diplomatic representation was renewed in your person. It is a common thing to resort to a temporary agency, such as yours, in the conduct of the business of a mission. A foreign minister, on quitting the coimtry, often leaves the affairs of his office in the friendly charge of the minister of another country, but the latter does not thereby become the diplomatic agent of the government in whose behalf he exerts his good offices. The relation established is merely one of courtesy and comity. The same thing occurs when the tem- porary' good offices of a consul are resorted to. In neither case is a formal credence, ad hoc or ad interim, necessary." ]\Iichael H. Cardozo and Joseph H. Choate, for petitioner. R. D. Benedict, for respondent. Mr. Chief Justice Fuller, after stating the facts as above, de- livered the opinion of the court. The judicial power of the United States extends to "all cases affecting ambassadors, other public ministers and consuls." Const, art. 3, § 2. By section 687 of the revised statutes, it is provided that the supreme court "shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or other public min- isters, or in which a consul or a vice-consul is a party." By section 563 it is provided that "the district courts shall have jurisdiction as follows : • * * Seventeenth. Of all suits against consuls or vice-consuls," except for certain offenses. The petitioner has been, since July, 1887, the consul general of the republic of Guatemala, and therefore the district court had jurisdiction of the action in question, unless he belonged to the class of official personages subject to suits or proceedings only in this court. This he insists was the fact, and avers in his petition, as he did in his plea in the district court, that at the time of the commencement of the action, and until and in- cluding the 10th day of July, 1889, which was the eighth day after service of process upon him, he was "the acting minister and sole representative of said republic [of Guatemala] in the United States," and for that rea-son came within the words of section 687, "other public ministers." The exemption asserted ceased on the 10th of July, 1889, and on the 17th of July the petitioner gave a general 40 CONSULAR CASES notice of appearance in the action, but did not set up the want of jurisdiction until the 25th of the following September. Suit could have been brought in that court against him on the 11th day of July, but as, in his view, this could not have been done on the 29th of June or the 2d of July, he contends that the district court should be ordered to dismiss the suit, though it could at once be recommended therein. But it is said that the appearance did not waive the right to be sued in this court, rather than in the district court, because that was the privilege of the country or government which he represented. With- out pausing to inquire how far this is a correct application of the international privilege of not being sued at all, its assertion, even in this restricted form, serves to emphasize petitioner's contention that he was at that time the minister or diplomatic agent of the republics of Guatemala, Salvador, and Honduras in the United States, intrust- ed by virtue of his office with authority to represent those republics in their negotiations, and to vindicate their prerogatives. Under sec- tion 2, art. 2, of the constitution, the president is vested with power to "appoint ambassadors, other public ministers, and consuls," and by section 3 it is provided that "he shall receive ambassadors and other public ministers." These words are descriptive of a class ex- isting by the law of nations, and apply to diplomatic agents, whether accredited by the United States to a foreign power or by a foreign power to the United States, and the words are so used in section 2 of article 3. These agents may be called ambassadors, envoys, ministers, commissioners, charges d'affaires, agents, or otherwise, but they pos- sess in subtance the same functions, rights, and privileges as agents of their respective governments for the transaction of its diplomatic business abroad. Their designations are chiefly significant in the relation of rank, precedence, or dignity. Atty. Gen. Gushing, 7 Ops. Atty. Gen. 186. Hence, when in subdivision 5 of section 1674 of the revised statutes we find "diplomatic officer" defined as including "ambassadors, envoys extraordinary, ministers plenipotentiary, min- isters resident, commissioners, charges d'affaires, agents and secre- taries of legation, and none others," we understand that to express the view of congress as to what are included within the term "public ministers," although the section relates to diplomatic officers of the United States. But the scope of the words "public ministers" is de- fined in the legislation embodied in title 47, "Foreign Relations," (Rev. St., 2d Ed., p. 783.) Section 4062 provides that "every per- son who violates any safe-conduct or passport duly obtained and issued under authority of the United States, or who assaults, strikes, wounds, imprisons, or in any other manner offers violence to the per- son of a public minister, in violation of the law of nations, shall be 41 CONSULAR CASES imprisoned for not more than three years, and fined, at the discre- tion of the court." Section 4063 enacts that whenever any writ or process is sued ont or prosecuted by any person in any court of the United States, or of a state, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, author- ized and received as such by the president, or any domestic or domes- tic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or pro- cess shall be deemed void. Section 4064 imposes penalties for suing out any writ or process in violation of the preceding section ; and section 4065 says that the two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, "in the service of a public minister," and the process is founded upon a debt contracted before he entered upon such service ; nor shall the preceding section apply to any case where the person against whom the process is issued is a "domestic servant of a public minister," unless the name of the ser- vant has been registered and posted as therein prescribed. Section 4130, which is the last section of the title, is as follows: "The word 'minister,' when used in this title, shall be understood to mean the person invested with, and exercising, the principal diplomatic functions. The word 'consul' shall be understood to mean any person invested by the United States with, and exercising, the functions of consul general, vice consul general, consul, or vice-consul." Sections 4062, 4063, 4064, and 4065 were originally sections 25, 26, 27, and 28 of the Crimes Act of April 30, 1790, (1 St. 118,) and these were drawn from the statute 7 Anne, c. 12, which was declaratory simply of the law of nations, which Lord Mansfield observed in Heathfield v. Chilton, 4 Burrows, 2016, the act did not intend to alter and could not altf.T. In that case, involving the discharge of the defendant from custody, as a domestic servant to the minister of the prince bishop of Liege, Lord IMansfield said: "I should desire to know in what man- ner this minister was accredited, — certainly he is not an ambassador, which is the first rank. Envoy, indeed, is a second class, but he is not Rho\Mi to be even an envoy. He is called 'minister,' 'tis true; but minister (alone) is an equivocal term." The statute of Anne was pa.ssed in consequence of the arrest of an ambassador of Peter the Great for debt, and the demand by the Czar that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death, (1 Bl. Comm. 254;) and it was in reference to this that Lord Ellenborough, in Viveash v. Becker, 3 Maule & S. 284, where it was held that a resident merchant of London, who is ap- pointed and acts as consul to a foreign prince, is not exempt from ar- 42 CONSULAR CASES rest on mesne process, remarked: "I cannot help thinking that the act of parliament, which mentions only 'ambassadors and public min- isters, ' and which was passed at a time when it was an object studious- ly to comprehend all kinds of public ministers entitled to these privi- leges, must be considered as declaratory, not only of what the law of nations is, but of the extent to which that law is to be carried." Three cases are cited by counsel for petitioner arising under or in- volving the act of 1790. In U. S. v. Liddle, 2 Wash. C. C. 205, in the case of an indictment for an assault and battery on a member of a foreign legation, it was held that the certificate of the secretary of state, dated subsequently to the assault and battery, is the best evi- dence to prove the diplomatic character of a person accredited as a minister by the government of the United States. The certificate from the secretary of state, Mr. Madison, stated that "when Mr. Feronda produced to the president his credentials as charge d'af- faires of Spain, he also introduced De Lima as a gentleman attached to the legation, and performing the duties of secretary of legation;" and the certificate was held to be the best evidence to prove that Fer- onda was received and accredited, and that at the same time De Lima was presented and received as secretary attached to the legation. In U. S. V. Ortega, 4 "Wash. C. C. 531, there was produced in court an official letter from the Spanish minister to the secretary of state, in- forming him that he had appointed Mr. Salmon charge d'affaires; a letter from the minister to Mr. Salmon ; a letter from the secretary of state addressed to the Spanish minister, recognizing the character of Mr. Salmon; two letters from the secretary of state addressed to Mr. Salmon as charge d'affaires; and the deposition of the chief clerk of the state department that Mr. Salmon was recognized by the presi- dent as charge d'affaires, and was accredited by the secretary of state. In U. S. V. Benner, Baldw. 234, the court was furnished with a certificate from the secretary of state that the Danish minister had by letter informed the department that Mr. Brandis had arrived in this country in the character of attache to the legation, and that said Brandis had accordingly, since that date, been recognized by the de- partment as attached to the legation in that character. These cases clearly indicate the nature of the evidence proper to establish whether a person is a public minister within the meaning of the constitution and the laws, and that the inquiry before us may be answered by such evidence, if adduced. Was Consul General Baiz a person ''invested with and exercising the principal diplomatic functions," within section 4130, or a "dip- lomatic officer," within section 1674? His counsel claim in their motion that he was "the acting minister or charge d'affaires of the 43 CONSULAR CASES republics of Guatemala, Salvador, and Honduras, in the United States, and so reco^ized by the state department, and that he ex- ercised diplomatic functions as such, and therefore was a public min- ister, within the statute. By the congresses of Vienna and Aix-la- Chapelle four distinct kinds of representation were recognized, of which the fourth comprised cliargcs d'affaires, who are appointed by the minister of foreign affairs, and not as the others, nominally or actually by the sovereign. Under the regulations of this government the representatives of the United States have heretofore been ranked in three grades, the third being charge d'affaires. Secretaries of legation act ex officio as charges d'affaires ad interim, and in the absence of the secretary of legation the secretary of state may desig- nate any competent person to act ad interim, in which case he is specifically accredited by letter to the minister for foreign affairs. "Wlieaton says: ''Charges d'affaires, accredited to the ministers of foreign affairs of the court at which they reside, are either charges d'affaires ad hoc, who are originally sent and accredited by their governments, or charges d'affaires per interim, substituted in the place of the minister of their respective nations during his absence." Int. Law, (8th Ed.) § 215. Ch. de Martens explains that charges d'affaires ad hoc on permanent mission are accredited by letters transmitted to the minister of foreign affairs. Charges d'affaires ad interim are presented as such by the minister of the first or second cla,ss when he is about to leave his position temporarily or permanent- ly. " 1 Guide Diplomatique, p. 61, § 16. "They," observes Twiss, in his Law of Nations, § 192, " are orally invested with the charge of the embassy or legation by the ambassador or minister himself, to be exercised during his absence from the seat of his mission. They are accordingly announced in this character by him before his de- parture to the minister of foreign affairs of the court to which he is accredited." Diplomatic duties are sometimes imposed upon con- suls, but only in virtue of the right of a government to designate those who shall represent it in the conduct of international affairs, (Calvo, Droit Int. 586,) and among the numerous authorities on inter- national law cited and quoted from by petitioner's counsel the atti- tude of consuls, on whom this function is occasionally conferred, is perhaps as well put by De Clercq and De Vallat as by any, as fol- lows: "There remains a last consideration to notice, that of a con- .sul who is charged for the time being with the management of the affairs of a diplomatic post. He is accredited in this case in his dip- lomatic capacity, either by a letter of the minister of foreign affairs of France to the minister of foreign affairs of the country where he is about to reside, or by a letter of the diplomatic agent whose place 44 CONSULAR CASES he is about to fill, or finally by a personal presentation of this agent to the minister of foreign affairs of the country," 1 Guide Pratique des Consulats, p. 93. That it may sometimes happen that consuls are so charged is recognized by section 1738 of the revised statutes, which provides: "No consular officer shall exercise diplomatic functions, or hold any diplomatic correspondence or relation on the part of the United States, in, with, or to, the government or country to which he is appointed, or any other country or government, when there is in such country any officer of the United States authorized to per- form diplomatic functions therein ; nor in any case, unless expressly authorized by the president so to do." But in such case their con- sular character is necessarily subordinated to their superior diplomatic character. **A consul ," observed Mr. Justice Story, in The Anne, 3 Wheat. 435, 445, "though a public agent, is supposed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of his own country ; but he is not considered as a min- ister or diplomatic agent of his sovereign, intrusted, by virtue of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his prerogatives. There is no doubt that his sovereign may specially intrust him with such authority; but in such case his diplomatic character is superadded to his ordinary powers, and ought to be recognized by the government within whose domin- ions he assumes to exercise it." When a consul is appointed charge d'affaires, he has a double political capacity ; but though invested with full diplomatic privileges, he becomes so invested as charge d'af- faires, and not as consul, and, though authorized as consul to com- municate directly with the government in which he resides, he does not thereby obtain the diplomatic privileges of a minister. Atty. Gen. Gushing, 7 Ops. Atty. Gen. 342, 345. This is illustrated by the ruling of Mr. Secretary Blaine, April 12, 1881, that the consul gen- eral of a foreign government was not to be regarded as entitled to the immunities accompanying the possession of diplomatic character because he was also accredited as the "political agent," so-called, of that government, since he was not recognized as performing any acts as such which he was not equally competent to perform as consul general. 1 Whart. Dig. Int. Law, (2d Ed.) § 88, p. 624. We are of the opinion that Mr. Baiz was not, at the time of the commence- ment of the suit in question, charge d'affaires at interim of Guate- mala, or invested with and exercising the principal diplomatic func- tions, or in any view a "diplomatic officer." He was not a public minister within the intent and meaning of section 687, and the dis- trict court had jurisdiction. 45 CONSULAR CASES The letter of Senor Lainfiesta of January 16, 1889, was neither an appointment of Mr. Baiz, as charge d'affaires ad interim, nor equivalent to such an appointment. It was a request in terms that the secretary of state would "please allow that the consul general of Guatemala and Honduras, in New York, Mr. Jacob Baiz," should communicate to the office of the secretary of state any matters re- lating to the peace of Central America of which that department ought to be informed without delay. This is not the language of designation to a representative position, and is the language designat- ing a mere medium of communication ; and the reply of Mr. Secretary Bayard so treats it, in declaring that the department would be pleased to receive any communication in relation to Central America of which Consul General Baiz might be made the channel. This reply is addressed to Mr. Baiz, as "Consul General of Guatemala and Honduras," and not as charge d'affaires ad interim. The mere fact that the usual note conveying the information to the legations of Mr. Secretary Blaine's accession chanced to be addressed to "Senor Don Jacob Baiz, in charge of the legations of Guatemala, Salvador, and Honduras," was not a recognition that he was charge d'affaires ad interim, or exercising diplomatic functions; and Mr, Baiz, in acknowledging the receipt of that announcement, properly signs his letter "Counsel General." It may be that such announcements are not sent to any but those exercising diplomatic functions; but this courtesy could not operate as in itself a deliberate recognition of the right to exercise such functions, nor that the person to whom the communication was addressed was in such exercise as a matter of fact. It was entirely proper, since Consul General Baiz was the channel of communication between Guatemala, Honduras, and Salvador, and the state department, that the notification should be sent to him; and even if that course had not been usual, the courtesy could not be availed of to impart a character which the recipient did not otherwise possess. The proofs show that of ten letters from the state depart- ment to Mr. Baiz between January 16 and July 10, 1889, two were addressed to him as in charge of the legations, or the business of the legations, of Guatemala, Salvador, and Honduras; two were ad- dressed to him as consul of Honduras; and six as consul general of Guatemala, or Guatemala and Honduras. Of seven letters from Mr. Baiz to the department, one was signed," Jacob Baiz," and six, "Jacob Baiz, Consul General." The acknowledgment of notice of the acces- sion of the secretary of state, and of the appointment of Mr. Mizner, and the transmission of a letter from the president of Guatemala, and the announcement of the appointment of Minister Cruz, by the con- sul general, can hardly be regarded as the performance of diplomatic 46 CONSULAE CASES functions as such. The official circular issued by the department of state, corrected to June 13, 1889, gives the names and description of the charges d'affaires ad interim, in the case of countries repre- sented by ministers who were absent, and of countries having no min- ister, and the date of their presentation. In the instance of Portugal, the name is given of "consul and acting consul general, in charge of business of legation," and the fact of the presentation, with the date, appears in the list; while in the instance of Guatemala, Salvador, and Honduras the name of Mr. Baiz is referred to in a foot-note, with the title of consul general only; nor does it appear, nor is it claimed to be the fact, that he was ever presented. As stated by counsel, Mr. Webster took the ground, in the case of M. Hulsemann, that as charge d'affaires he was not, as a matter of strict right, entitled to be presented to the president; and this is in accordance with the regu- lations of the state department, (Reg. p. 13.) But such presentation is undeniably evidence of the possession of diplomatic character, and so would be the formal reception of a charge d'affaires ad interim by the secretary of state. The inference is obvious that, if the depart- ment of state had regarded Mr. Baiz as charge d'affaires ad interim, or as "invested with and exercising the principal diplomatic func- tions," his name would have been placed in the list, with some indi- cation of the fact, as the title of charge, or, if he had been presented, the date of his presentation. Nor can a reason be suggested why the petitioner has not produced in this case a certificate from the secre- tary of state that he had been recognized by the department of state as charge d'affaires ad interim of Guatemala, or as intrusted with diplomatic functions, if there had been such recognition. A certifi- cate of his status was requested by the Guatemalan minister, and, if the state department had understood that Mr. Baiz was in any sense or in any way a "diplomatic representative," no reason is perceived why the department would not have furnished a certificate to that effect ; but, instead of that, it contented itself with a courteous reply, giving what was in its judgment a sufficient resume of the facts, the letter being in effect a polite declination to give the particular certificate desired because that could not properly be done. Mr. Baiz was a citizen of the United States, and a resident of the city of New York. In many countries it is a state maxim that one of its own subjects or citizens is not to be received as a foreign diplomatic agent, and a refusal to receive, based on that objection, is always regarded as reasonable. The expediency of avoiding a possible conflict between his privileges as such, and his obligations as a subject or citizen, is considered reason enough in itself. "Wheat. Int. Law (8th Ed.) § 210; 2 Twiss, Law Nat. p. 276, § 186; 2 Phillim. 47 CONSULAR CASES Int. Law. 171. Even an appointment as consul of a native of the place where consular service is required is, according to Phillimore, "perhaps rightfully pronounced, by a considerable living authority, to be objectionable in principle." Volume 2, p. 246, citing De Mar- tens et De Cussey, Rec. de Trait, Index Explicatif, p. 30, tit. "Con- suls." "Other powers," says Calvo, (volume 1, p. 559, 2d Ed.,) "admit without difficulty their own citizens as representatives of foreign states, but imposing on them the obligation of amenability to the local laws as to their persons and property. These conditions, which, nevertheless, ought never to go so far as to modify or alter the representative character, ought always to be defined before or at the time of receiving the agent ; for otherwise the latter might find it impossible to claim the honors, rights, and prerogatives attached to his employment." See, also, Heffter, (3d Fr. Ed.) 387. In the United States the rule is expressed by Mr. Secretary Evarts, under date of September 19, 1879, thus: "This government objects to re- ceiving a citizen of the United States as a diplomatic representative of a foreign power. Such citizens, however, are frequently recog- nized as consular officers of other nations, and this policy is not known to have hitherto occasioned any inconvenience." And, again, April 20, 1880, while waiving the obstacle in the particular instance, he says: "The usage of diplomatic intercourse between nations is averse to the acceptance, in the representative capacity, of a person who, while native bom in the country which sends him, has yet ac- quired lawful status as a citizen by naturalization of the country of which he is sent." 1 Whart. Dig. Int. Law (2d Ed.) § 88a, p. 628. Of course the objection would not exist to the same extent in the case of designation for special purposes or temporarily, but it is one purely for the receiving government to insist upon or waive at its pleasure. The presumption, therefore, would ordinarily be against Mr. Baiz's contention, and, as matter of fact, we find that, when in 1886 he was appointed charge d'affaires of the republic of Honduras to the government of the United States, Mr. Secretary Bayard de- clined receiving him as the diplomatic representative of the govern- ment of that country, because of his being a citizen of the United States, and advised him that "it has long been the almost uniform practice of this government to decline to recognize American citizens as the accredited diplomatic representatives of foreign powers. The statutory and jurisdictional immunities, and the customary privi- leges of right attaching to the office of a foreign minister make it not only inconsistent, but at times even inconvenient, that a citizen of this country should enjoy so anomalous a position." And in a sub- sequent communication rendered necessary by a direct question of 48 CONSULAR CASES Mr, Baiz, the secretary informs him "that it is not the purpose of the department to regard the substitutionary agency, which it cheer- fully admits in your case, as conferring upon you personally any diplomatic status whatever." This correspondence disposes of the question before us. The objection which existed in 1886 to the reception of Mr- Baiz as charge d'affaires ad Jioc or ad interim, or according to him any diplomatic status whatever, whether temporary or otherwise, existed in 1889 ; and it is out of the question to assume that the state department intended to concede the diplomatic status between January 16 and July 10, 1889, upon the request of Senor Lainfiesta that Consul General Baiz might be allowed to be a medium of communication during his absence, which it had refused to accord to the republic of Honduras itself. It is evident that the statement of the assistant secretary, October 4, 1889, was quite correct, that "the business of the legation (of Guatemala) was conducted by Con- sul General Baiz, but without diplomatic character." It is objected that we ought not to have allowed these official papers to come before us, but should have prohibited the district court from exercising jurisdiction, because the evidence that estab- lished it had not all been before that court when the question was raised; but the rule governing this class of cases involves no such consequences. The district judge was of opinion that inasmuch as there were two kinds of direct evidence which would show that the defendant was a "public minister," to-wit: (1) A certificate of the secretary of state that he was such, was received as such, and was exercising such functions; or (2) proof of the exercise by the defendant of "the principal diplomatic functions," under some one of the titles of diplomatic office, as recognized by our statute and the law of nations; and as such direct evidence had not been furnished, and the plaintiff was not required to produce his counter-evidence on a motion Like that under consideration instead of at the trial, — he was justified in retaining jurisdiction until the issue raised by the pleadings was regularly determined. But to this latter suggestion counsel for petitioner answered in argument: "At any rate, in this court, exercising its appropriate jurisdiction to entertain an appli- cation for a writ of prohibition or mandamus, the respondent here is called upon to produce any evidence that exists to coimtervail the petitioner's proof of his privilege." This is undoubtedly the cor- rect view. The question here is whether the district court had juris- diction, and not whether its order refusing to set aside the service of summons and the subsequent proceedings in the action, and dismiss- ing the same, should be reversed. The practice in prohibition was formerly to file a suggestion, an affidavit in support of which was re- 49 CONSULAR CASES quired where the prohibition was moved for upon anything not appearing upon the face of the proceedings. Upon a rule to show cause, if it appeared to the court, on cause shown, that the surmise was not true, or not clearly sufficient to ground the prohibition upon, it would be denied, otherwise the rule would be made absolute; or, if the matter were doubtful, the party was ordered to declare, and issue joined on such declaration w^as regularly tried, being in the nature of an issue to inform the conscience of the court. 2 Sell. Pr. 313, 321, 325. And in mandamus if the case were not governed by the return to the alternative writ, but a traverse of the return was allowed, issues were made up, and a trial had. If the matter can be disposed of upon the rule to show cause, that course may be pursued, but the applicable principles are the same. The alleged want ot jurisdiction depends upon questions of fact. It was purely dis- cretionary whether this evidence should be admitted at the time it was presented ; and, in a proceeding involving the inquiry under con- sideration, it was plainly our duty to permit it to come in, the peti- tioner being afforded, as he was, the opportunity for explanation, and the introduction of such other evidence as he chose to produce. In Ex parte Hitz, 111 U. S. 766, 4 Sup. Ct. Rep. 698, which was an ap- plication for a writ of certiorari, commanding the supreme court of the District of Columbia to certify to this court an indictment and the proceedings thereunder, on the ground that, when the indictment was filed, and when the offenses therein charged were committed, he was the diplomatic representative of the Swiss Confederation, the court directed a preliminary inquiry, and, in doing so, Mr. Chief Justice Waite said: "As it is conceded that the petitioner is not now in the diplomatic service of Switzerland, and was not when all the proceedings in the supreme court of the District of Columbia subsequent to the indictment were had, counsel are directed to re- quest the secretary of state to certify whether John Hitz was at any time accredited to and recognized by the government of the United States as public or political agent or charge d'affaires of the republic of Switzerland, and, if so, for what period of time, and up to and in- cluding what date." The counsel having complied with that request, the court, upon receiving the information as to what the records of the department showed, dismissed the petition. Regarding the matter in hand as, in its general nature, one of delicacy and importance, we have not thought it desirable to discuss the suggestions of counsel in relation to the remedy, but have pre-, ferred to examine into and pass upon the merits. We ought to add that while we have not cared to dispose of this case upon the mere absence of technical evidence we do not assume to sit in judgment 50 CONSULAR CASES upon the decision of the executive in reference to the public char- acter of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the state department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof. Our conclusion is, as already stated, that the district court had jurisdiction, and we accordingly discharge the rule and deny the writs." BAIZ V. MALO, (1899, U. S.— Columbia) 58 N. y. Supp. 806. Gildersleeve, Supreme Court of New York. [Vice-consul of Columbia by application of the treaty of 1846 receives the benefit of the most favored nation treatment and the ap- plication of the provisions of the treaty of 1853 with France, so that he cannot be compelled to attend as a witness. Cites U. S. v. Trumbull, 48 Fed. 96.— Ed.] BALTIC A, THE, (1855, Great Britain— Denmark) 1 Spinks Prize Cases 264. Lushington, High Court of Admiralty. [Danish consul, Dane by birth, who was merchant at Libau, considered to have Russian nationality and transfer of his ship to avoid seizure invalidated. This decision was reversed later on an- other point, — Ed.] BARBER, TRUSTEES OF MRS., (1835, Great Britain) 5 L, J, M. S. C. P. 81. Per Curiam, Court of Common Pleas, (Syllabus) The certificate required in support of an affidavit of the acknowl- edgment of a fine by a married woman in a foreign country, may be given by the British consul there resident, as it is a notarial act, within 6 Geo, 4 C. 87 S. 20. The conusors of this fine being resident in Boston, in America, the acknowledgment was taken before special commissioners, and the affidavit sworn before the Judge of the Municipal Court of Boston. This affidavit was authenticated by the British consul, instead ol a notary public ^ in consequence of which the clerk of the enrollments refused to receive the certificate of acknowledgment. Talfourd, Serj., now moved, that the officers might be directed to receive such certificate, submitting, that the certificate of the consul ^From 10 Sup. Ct. Eep. 854. ^ See Eule, Hilary term, 14 Geo. 3, and Cruttenden v. Bourbell, 1 Taunt. 144. 51 CONSULAR CASES ■was a notarial act, which he was empowered to perform by the Stat. 6 Geo. 4 C. 87 S. 20. The court after some consideration, granted the application. BAEBUIT'S CASE, (1737, Great Britain— Prussia) Porresier's Cases Temp. Lord Talbot 281. Talbot, Chancerj\ BARBUIT had a commission, as agent of conunerce from the King of Prussia in Great Britain, in the year 1717, which was ac- cepted here by the Lords Justices then the King was abroad. After the late King's demise his commission was not renewed until 1735, and then it was, and allowed in a proper manner; but with the recital of the powers given him in the commission, and allowing him as such. These commissions were directed generally to all the persons whom the same should concern and not to the King; and his business described in the commissions was, to do and execute what his Prussian Majesty should think fit to order with regard to his sub- jects trading in Great Britain ; to present letters, memorials and instruments concerning trade to such persons, and at such places, as should be convenient, and to receive resolutions thereon ; and thereby his Prussian Majesty required all persons to receive writings from his hands, and give him aid and assistance Barbuit lived here near twenty years, and exercised the trade of a tallow-chandler, and claimed the privilege of an ambassador or (281)foreign minister, to be free from arrests. (c) After hearing counsel on this point, LORD CHANCELLOR. A bill was filed in this Court against the defendant in 1725, upon which he exhibited his cross bill, stiling him.self merchant. On the hearing of these causes the cross bill was di.smissed; and in the other, an account decreed against the defen- dant. The account being passed before the master, the defendant took exceptions to the master's report, which were over-ruled; and then the defendant was taken upon an attachment for non-payment, &c. And now, ten years after the commencement of the suit, he insi.sts he is a public minister, and therefore all the proceedings against him null and void. Though this is a very unfavorable case, yet if the defendant is truly a public minister, I think he may now insist upon it ; for the privilege of a public minister is to have his person sacred and free from arrests, not on his own account, but on the account of those he represents, and this arises from the necessity (c) Vide Triquet and others v. Bath, 3 Burr. 1840. S. P. 1 Black, Eep. 471, S. C. 52 CONSULAR CASES of the thing, that nations may have intercourse with one another in the same manner as private persons, by agents, when they cannot meet themselves. And if the foundation of this privilege is for the sake of the prince by whom an ambassador is sent, and for the sake of the business he is to do, it is impossible that he can renounce such privilege and protection: for, by his being thrown into prison the business must inevitably suffer. The question is, whether the de- fendant is such a person as 7 Anne, cap. 10. describes, which is only declaratory of the ancient universal (d) jus gentium; the words of the statute (282) are, (ambassadors or other public ministers) and the exception of persons trading relates only to their servants, the parlia- ment never imagining that the ministers themselves would trade. I do not think the words ambassadors, or other public ministers, are synonymous. I think that the word ambassadors in the act of parlia- ment, was intended to signify ministers sent upon extraordinary occasions, which are commonly called ambassadors extraordinary ; and public ministers in the act take in all others who constantly reside here; and both are entitled to these privileges. The question is, whether the defendant is within the latter words ? It has been ob- jected that he is not a public minister, because he brings no creden- tials to the King. Now although it be true that this is the most conunon form, yet it would be carrying it too far to say, that these credentials are absolutely necessary; because all nations have not the same form of appointment. It has been said, that to make him a public minister he must be employed about state affairs. In which case, if state affairs are used in opposition to commerce, it is wrong; but if only to signify the business between nation and nation the proposition is right: for, trade is a matter of state, and of a public nature, and consequently a proper subject for the employment of an ambassador. In treaties of commerce those employed are as much public ministers as any others; and the reason for their protection holds as strong: and it is of no weight with me that the defendant was not to concern himself about other matters of state, if he was authorized as a public minister to transact matters of trade. It is not necessary that a minister's commission should be general to entitle him to protection ; but it is enough that he is to transact any one particular thing in that capacity, as every ambassador extraor- dinary is; or to remove some particular difficulties, which might otherwise occasion war. But what creates my difficulty is, that I do not think he is instructed to transact (283) affairs between the two crowns: the commission is, to assist his Prussian Majesty's sub- (d) Vide 1 Black. Com. 255, where the circumstance which occasioned the making this act is stated at large. 53 CONSULAR CASES jects here in their commerce ; and so is the allowance. Now this gives him no authority to intermeddle with the affairs of the King: which makes his employment to be in the nature of a consul. And although he is called only an agent of commerce, I do not tliink the name alters the case. Indeed there are some circumstances that put him below a consul ; for, he wants the power of judicature, which is com- monly given to consuls. Also their commission is usually directed to the prince of the country ; which is not the present case : but at most he is only a consul. It is the opinion of Barbeyrac, Wiucquefort and others, that a consul is not entitled to the jus gentium belonging to ambassadors. And as there is no authority to consider the defendant in any other view than as a consul, imless I can be satisfied that those act- ing in that capacity are entitled to the jus gentium, 1 cannot dis- charge him. (e). Note: The person was after discharged by the secretary's office, satisfying the creditors. BECHERDASS AMBAIDASS, THE, (1871, U. S.— Great Britain) 1 Low. 569; Fed. Cases 1,203. Lowell, District Court. (Extract) And my opinion is, that justice does not require me to take jurisdiction against the protest of the consul. That objec- tion has weight as showing the opinion of the person who is entrusted with the care of British seamen, that there is no such hardship in this case as required the libellants to be paid here rather than at home. His opinion of the law too must have some weight, because he is in a position to know and act upon it often. BEE, THE, (1804, U. S.) Ware, 332; Fed. Cases 1, 219. Ware, District Court. [Seems to involve no question about consuls. Salvage ease. British consul appeared for the foreign owners. — Ed.] («) In the discussion of this case the court seems to have determined, that a person residing in this country in the capacity of foreign minister, cannot by any act or acts of his own, waive that privilege of protection which the law of na- tions has annexrd to a situation so important. That a foreign minister, being or becoming a trader, does not thereby lose, or forfeit the privilege personally an- nexed to him ; and therefore, the only reason why the court in the present in- stance did not think the defendant entitled to the protection which he claimed, was, that the employment which he was invested with, could at most be considered only as the same with, or equal to that of consul, which according to the best writers upon the subject, was not entitled to the Jus Gentium, or privilege be- 54 CONSULAR CASES BELGENLAND/ THE, (1884, U. S.) 114 U. S. 355; 5 Sup. Ct. Eep. 860. Bradley, Supreme Court. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. BRADLEY, J. This ease grows out of a collision which took place on the high seas between the Norwegian bark Luna and the Belgian steamship Belgenland, by which the former was run down and sunk. Part of the crew of the Luna, including the master, were rescued by the Belgenland and brought to Philadelphia. The master immediately libeled the steamship on behalf of the owners of the Luna and her cargo, and her surviving crew, in a cause civil and maritime. The libel stated in substance that the bark Luna, of 359 tons, was on a voyage from Porto Rico to Queenstown, or Fal- mouth, with a cargo of sugar, and when in latitude 44° 33', and longi- tude 21° 43', was met by the steamship Belgenland, end on, between 1 and 2 in the morning, and was run down and sunk by her, only five of her crew escaping ; that the light of the steamship was observed right ahead when a mile or more off ; that the bark kept her course, as was her duty to do; and that the steamship took no measures to avoid her, but came on at full speed until she struck the Luna; and that the collision was altogether the fault of those in charge of the steamship. The master of the Belgenland appeared for her owners, and filed an answer, denying that the Luna, at the time of the collision, was sailing on the course alleged, and averred that she was crossing the bows of the steamship, and must have changed her course, and that this was the cause of the collision ; that the Luna was not discovered until the instant of the collision, when it was too late to alter the course of the steamship; and that the reason why the bark was not seen before, was that she was enveloped in a shower of rain and mist, and that the steamship was plunging into a heavy head sea, throw- ing water over her turtle-deck forward. The proctor for the Belgen- land, at the time of filing his answ^er, excepted to the jurisdiction of the court, and stated for cause that the alleged collision took place between foreign vessels on the high seas, and not within the juris- diction of the United States; that the Belgenland was a Belguim vessel, belonging to the port of Antwerp, in the kingdom of Belgium, longing to ambassadors or ministers who are entrusted to transact matters of state or other affairs between two nations. That the laws of nations (which in its full- est extent was and formed part of the law of England), was the rule of decision in cases of this kind; and that the act of parliament was declaratory of it, and occasioned by a particular incident. ^S. C. 5 Fed. Eep. 86; 9 Fed. Eep. 126. 576, and 16 Fed. Eep. 430. 55 CONSULAR CASES ninning a regular line between Antwerp and the ports of New York and riiiladelpliia; and that the bark Luna was a Norwegian vessel, and that no American citizen was interested in the bark or her cargo. The district court decided in favor of the libelant, and rendered a decree for the various parties interested, to the aggregate amount of $50,278.23. An appeal was taken to the circuit court, which found the following facts, to-wit: * * ( 1 ) Between one and two o 'clock on the morning of September 3, 1879, in mid-ocean, a collision occurred between the Norwegian bark Luna, on her voyage from Humacao, in Porto Rico, to Queenstown or Falmouth, and the steamship Belgenland, on a voyage from Antwerp to Philadelphia, which resulted in the sinking of the bark, in the total loss of the vessel and her cargo, and in the drowning of five of her crew. " (2) The wind was between S. W. and W. S. W., and there was not much sea, but a heavy swell. The bark was running free, heading S. E. by E. half E., having the wind on her star-board quarter. All her square sails were set except her main-royal, and she carried also her fore, main, and mizzen stay-sails and inner jib. Her yards were braced a little, her main sheet was down, but the weather-clew was up. She was making about seven and one-half knots. Her watch on deck con- sisted of the first mate and three men ; an able seaman was on the lookout on the top-gallant forecastle, and a capable helmsman was at the wheel. She carried a red light on her port side and a green light on her starboard side, properly set and burning brightly, which could be seen, on a dark night, and with a clear atmosphere, at least two miles. The character and location of these lights conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade. About 1.45 o'clock the lookout sighted the white mast-head light of a steamer right ahead, distant, as he thought, about a mile, and reported it at once to the mate, who cautioned the man at the wheel to 'keep her steady and be very care- ful,' and the bark held her course. No side lights on the steamer were seen from the bark, but, as the vessels approached each other, the white light of the steamer gradually drew a little on the port bow of the bark for three or four minutes. The mate of the bark seeing the steamer's sails, and that she was heading directly for the bark, was close aboard of her, and reasonably apprehending that a collision was inevitable ordered the bark's helm hard a-port. In a few seconds the steamer's starboard light came into view, and in another instant she struck the bark on her port side, cutting her in two obliquely from the after-part of her fore rigging to the fore-part of the main rigging. 56 CONSULAR CASES "(3) The Belgenland was steering N. W. by W. half W. by compass, and making about eleven knots. Her second officer had charge of the deck, and his watch was composed of ten able seamen, two quartermasters, the second boatswain, and the fourth officer. One able seaman was stationed on the lee or starboard side of the bridge as a lookout. The second officer was on the bridge. The fourth officer was stationed at the after or standard compass, which was near the mizzen-mast, but at the time was on the bridge, having come there to report a cast of the log. A quartermaster was at the wheel. The rest of the watch were underneath the turtle-back or top gallant forecastle. The steamer was four hundred and sixteen feet long and about thirty-eight feet beam. The bridge was one hundred and fifty or one hundred and eighty feet from her bow, and was six or seven feet higher than the top of the turtle-back, which was about twenty-five feet above the water. The steamer had her fore, main, and mizzen try-sails, fore stay-sails, and jib set and drawing, and probably her jigger also. She heeled to starboard from ten to fifteen degrees. ** (4) The only lookout on the steamer was on the bridge. None was on the turtle-back, although it would have been entirely safe to station one there, for the alleged reason that the vessel was plunging into a head sea, and taking so much water over her bows that he would have been of no use there. "(5) The bark was not seen by those in charge of the steamer until just at the instant of the collision, when the second officer saw her head sails just across the steamer's bow, and the lookout in the lee side of the bridge saw her after-sails and stem. **(6) The moon was up, but was obscured by clouds. There was no fog, but occasional rain, with mist, and the wind was blowing from the S. W. to W. S. W. "(7) Objects could be seen at a distance of from five hundred yards to a mile. The mast-head light of the steamer was sighted, and at once reported by the lookout on the bark, at the distance of about a mile ; the port light of the bark was seen by a steerage passenger on the steamer, looking out of his room just imder the bridge, and re- ported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the com- panion ladder, cross the deck, and reach the steamer's rail; after the collision, the mizzen-mast of the bark was all of her above water, and this was distinctly seen from the steamer when she was at the distance of five hundred yards from it. "(8) The damages caused by the collision were assessed at $50,248.23." 57 CONSULAR CASES Upon tliose facts the court below deduced the following conclu- sions : "(1) That the vessels were approaching each other from op- posite directions, upon lines so close to each other as to involve the necessity of a deflection by one or the other of them to avoid a collision. "(2) That the lookout on the bark saw the steamer when she was nearly a mile distant, and she was held steadily on her course, and that she thereby fulfilled her legal obligation. Even if her helm was ported, it was at a time and under circumstances which did not in- volve any culpability on her part. "(3) That it was the duty of the steamer to keep out of the way of the bark, and, to that end, so to change her course as to pre- clude all danger of collision. " (4) That the bark could and ought to have been seen by the steamer when they were sufficiently distant from each other to en- able the steamer to give the bark enough sea-room to avert any risk of collision. In this failure to observe the bark the steamer was negligent. "(5) No satisfactory or sufficient reason is furnished by the respondents' evidence for this failure of observation. If it resulted from the inattention of the steamer's lookout, or because their vision was intercepted by her fore try-sail, she was clearly culpable. If it is explicable by the condition of the atmosphere, no matter by what cause it was produced, it was the steamer's duty to reduce her speed, and to place a lookout on her turtle-back. An omission to observe these precautions was negligence. But, considering the proof that the bark held her course, and that the steamer might have seen her by proper vigilance, when suitable precaution against collision might have been taken, a mere speculative explanation of the steamer's pre- sumptive culpability cannot be accepted as sufficient." A decree was thereupon entered, affirming the decree of the dis- trict court in favor of the libelants for the sum of $50,748.23, with interest from March 25, 1881, amoimting to $51,954.14, and costs. A reargument was had on the question of jurisdiction, and the court held and decided that the admiralty courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners of different nationalities; and overruled the plea to the jurisdiction. The case is now before us on appeal from the decree of the circuit court. The first question to be considered is that of the jurisdiction of the di.strict court to hear and determine the cause. It is unneces- sary here, and would be out of place, to examine the question which 58 CONSULAR CASES has so often engaged the attention of the common-law courts, whether, and in what cases, the courts of one country should take cognizance of controversies arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully discussed in Mostyn v. Fabrigas, and the notes thereto in 1 Smith, Lead. Cas. 765; and an instructive analysis of the law will be found in the elaborate argu- ments of counsel in the case of the San Francisco Vigilant Commit- tee, (Molony v. Dows, 8 Abb. Pr. 316,) argued before Judge Daly in New York, 1859, "We shall content ourselves with inquiring what rule is followed by courts of admiralty in dealing with maritime causes arising between foreigners and others on the high seas. This question is not a new one in these courts. Sir William Scott had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and after- wards rescued by her crew, carried to England, and libeled for sal- vage " and the court entertained jurisdiction. The crew, however, though engaged in the American ship, were British-born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks: "But, it is asked, if they were American seamen would this court hold plea of their demands ? It may be time enough to answer this question when- ever the fact occurs. In the mean time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case; or, conversely, if American courts were to hold pleas of this nature respecting the merits of British seamen on such occasions. For salvage is a question of jus gentium, and materially different from the question of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own par- ticular rules. There might be good reason, therefore, for this court to decline to interfere in such cases, and to remit them to their own Jomestic forum ; but this is a general claim, upon the general ground of quantum meruit, to be governed by a sound discretion, acting on general principles; and I can see no reason why one country should be afraid to trust to the equity of the courts of another on such a question of such nature, so to be determined." The Two Friends, 1 C, Rob. 271, 278. The law has become settled very much in accord with these views. That was a case of salvage; but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nationalities, come within the domain of the general law of nations, or communis jut-is, and are prima facie proper subjects of inquiry in 59 CONSULAR CASES any court of .idmiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious or in- jured parties. The same question of jurisdiction arose in another salvage case ■which came before this court in 1804. Mason v. The Blaireau, 2 Cranch. 240. There a French ship was saved by a British ship, and brought into a port of the United States ; and the question of jurisdic- tion was raised by Mr. ]\[artin, of Maryland, who, however, did not press the point, and referred to the observations of Sir "William Scott in The Two Friends. Chief Justice Marshall, speaking for the court, disposed of the question as follows: "A doubt has been suggested," said he, "respecting the jurisdiction of the court, and, upon a refer- ence to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy this court ought not to take cognizance of a rase entirely between foreigners, than from any positive inca- pacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to over- balance those against it, and it is the opinion of this court that, what- ever doubts may exist in a case where the jurisdiction may be ob- jected to, there ought to be none where the parties assent to it," In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect the jurisdiction of the court, however much it may influence its discretion in taking jurisdiction. For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul, or minister, is fre- quently required before the court will proceed to entertain jurisdic- tion ; not on the ground that it has not jurisdiction, but that, from motives of convenience, or international comity, it will use its dis- cretion whether to exercise jurisdiction or not; and where the voyage is ended, or the seamen have been dismissed or treated with great cruelty, it will entertain jurisdiction even against the protest of the consul. This branch of the subject will be found discussed in the following cases: The Catharina, 1 Pet. Adm. 104; The Forsoket, Id, 197; The St. Oloff, 2 Pet. Adm. 428; The Golubchick, 1 Wm. Rob. 143 ; The Nina, L. R. 2 Adm. & Ecc. 44 ; S. C. on appeal, L. R. 2 Priv. 60 CONSULAR CASES C. 38 ; The Leon XIII. 8 Prob. Div. 121 ; The Havana, 1 Spr. 402 ; The Becherdass Ambaidass, 1 Low. 569 ; The Pawashick, 2 Low. 142. Of course, if any treaty stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising between the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations should be fairly and faithfully observed. The Elwine Kreplin, 9 Blatchf. 438; reversing, S. C. 4 Ben. 413; see S. C. on application for man- damus, ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been entered into between our government and foreign states. See Treaties and Conventions, (Ed. 1871,) Index, p. 1238. In the absence of such treaty stipulations, however, the case of foreign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs ; framed, also, with a view to secure, in accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill treatment. On general principles of comity, admiralty courts of other countries will not in- terfere between the parties in such cases unless there is special rea- son for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction. Not alone, however, in cases of complaints made by foreign sea- men, but in other cases also, where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow-subjects as to matters of contract or tort solely affecting them- selves, and determinable by their owti laws, such tribunals will exer- cise their discretion whether to take cognizance of such matters or not. A salvage case of this kind came before the United States district court of New York in 1848. The master and crew of a British ship found another British ship near the English coast, apparently aban- doned, (though another vessel was in sight,) and took off a portion of her cargo, brought it to New York, and libeled it for salvage. The British consul and some owners of the cargo intervened and protested against the jurisdiction, and Judge Betts discharged the case, de- livered the property to the owners upon security given, and left the salvors to pursue their remedy in the English courts. One Hundred and Ninety-four Shawls, 1 Abb. Adm. 317. 61 CONSULAR CASES So in a question of o^vnersl^ip of a foreign vessel, agitated between the subjects of the nation to which the vessel belonged, the English admiralty, upon objection being made to its jurisdiction, refused to interfere, the consul of such foreign nation having declined to give his consent to the proceedings. The Agincourt, L. R. 2 Prob. Div. 239. But in another case, where there had been an adjudication of the o^^^lership under a mortgage in the foreign country, and the consul of that coimtrv requested the English court to take jurisdiction of the case upon a libel filed by the mortgagee, whom the owners had dispossessed, the court took jurisdiction accordingly. The Evangelis- tria, L. R. 2 Prob. Div. 241, note. But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising be- yond the territorial jurisdiction of the country to which the courts belong, yet wliere such controversies are communis juris, — that is, where they arise under the common law of nations, — special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be whether it is expedient to exercise it. See 2 Pars. Shipp. & Adm. 226, and cases cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by I\Ir. Justice Story, jurisdiction was exercised in the case of a bottomry bond, although the contract was made between sub- jects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case. Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an admiralty court can take jurisdiction on the principle of the civil law, that in proceedings in rem the proper forum is the locus rei sitae. He added : "With reference therefore to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy." That, as we have seen, was a case of bottomry, and Justice Story, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: "In respect to maritime contracts, there is still less reason to decline the jurisdic- tion, for in almost all civilized countries these are in general sub- stantially governed by the same rules." Justice Story's decision in this case was referred to by Dr. Lushington with strong approbation in the case of The Golubchick, 1 Wm. Rob. 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case. 62 CONSULAR CASES In 1839 a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came before the English admiralty. The Johann Friederich, 1 Wm. Rob. 35. A Danish ship was sunk by a Bremen ship, and on the latter being libeled, the respondents entered a protest against the jurisdiction of the court. But jurisdiction was retained by Dr. Lush- ington, who, among other things, remarked: "An alien friend is enti- tled to sue [in our courts] on the same footing as a British -born sub- ject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus comifatus, no objection could have been taken." Reference being made to the observations of Lord Stowell in cases of seamen's wages, the judge said: "All questions of collision are questions commimis juris; but in cases of mariners' wages, whoever engages voluntarily to serve on board a foreign ship necessarily undertakes to be bound by the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, there- fore, respecting cases where both parties are foreigners, is whether the case be communis juris or not. * * * jf these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost; for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress. In the subsequent case of The Griefswald, Swab. 430, decided by the same judge in 1859, which arose out of a collision between a Brit- ish bark and a Persian ship in the Dardanelles, Dr. Lushington said : "In cases of collision, it has been the practice of this country, and, so far as I know, of the European states and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is mani- fest, is most conducive to justice, because in very many cases a rem- edy in personam would be impracticable." The subject has frequently been before our own admiralty courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice Blatchford, while district judge of the Southern District of New York : The Jupiter, 1 Ben. 536, and The Russia, 3 Ben. 471. In the former case, the law was taken very much for granted; in the latter, it was tersely and accurately ex- pounded, vnth. a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The gen- 63 CONSULAR CASES eral doctrine on the subject is recocfnized in the case of The Maggie Hammond, 9 "Wall. 435, 457, and is accurately stated by Chief Justice Taney in his dissenting opinion in Taylor v, Carryl, 20 How. 611. As the assumption of jurisdiction in such cases depends so large- ly on the discretion of the court of first instance, it is necessary to in- quire how far an appellate court should undertake to review its action. "We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII. L. R. 8 Prob. Div. 121, the subject was discussed in the court of appeal. That was the case of a Spanish vessel libeled for the wages of certain British seamen who had shipped on board of her, and the Spanish consul at Liverpool protested against the jurisdiction of the admiralty court on the ground that the shipping articles were a Spanish con- tract, to be governed by Spanish law, and any controversy arising thereon could only be settled before a Spanish court or consul. Sir Robert Phillimore held that the seamen were to be regarded for that case as Spanish subjects, and, under the circumstances, he considered the protest a proper one, and dismissed the suit. The court of appeal held that the judge below was right in regarding the libelants as Spanish subjects; and on the question of reviewing his exercise of discretion in refusing to take jurisdiction of the case, Brett, M, R., said: "It is then said that the learned judge has exercised his dis- cretion wrongly. What, then, is the rule as regards this point in the court of appeal? The plaintiffs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the court of appeal holds, that they are justified in saying he has exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion 80 unjust or imfair as to entitle us to overule his discretion." This seems to us to be a very sound view of the subject; and, act- ing on this principle, we certainly see nothing in the course taken by the district court, in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or sal- vage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and can generally be more im- partially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the rrs or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge Deady 64 CONSULAR CASES very justly said, in a case before him in the district of Oregon : * * The parties cannot be remitted to a home forum, for, being subjects of dif- ferent governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found." Bern- hard V. Creene, 3 Sawy. 230, 235. As to the law which should be applied in cases between parties or ships of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in wliich the litigation is prosecuted. This rule is laid down in many cases ; among others the following : The Johann Friederich, 1 Wm. Rob. 35 ; The Dumfries, Swab. 63 ; The ZoUverein, Id. 96; The Grief swald. Id. 430; The Wild Ranger, Lush. 553; The Belle, 1 Ben. 320; The Scotia, 14 Wall 171; The Scotland, 105 U. S. 24, 29 ; The Leon, 6 Prob. Div. 148. In the case last cited, which was that of a British ship run down by the Leon, a Spanish ship, the question was specifically raised by the respondents, (the owners of the Leon,) who set up in defense that if there was any negligence in her navigation, her master and crew, and not her owners, were liable by the Spanish law. This defense was overruled, and the gen- eral maritime law, as understood and administered in England, was held to govern the case; by which law the owners were held respon- sible. The same rule was followed by this court in The Scotland, and was applied to the collision of a British with an American ship on the high seas; although, it is true, we applied to that case the rule of limited liability established by the act of congress, regarding that act as declarative of the general maritime law to be administered by our courts. The rule requiring the application of the general maritime law to such cases has some qualifications, which, though not affecting the present case, should always be borne in mind. One of these qualifi- cations is that the persons in charge of either ship will not be open to blame for following the sailing regulations and rules of naviga- tion prescribed by their own government for their direction on the high seas, because they are bound to obey such regulations. The Scotia, 14 Wall. 170, 184. Another qualification is that if the mari- time law, as administered by both nations to which the respective ships belong, be the same in both in respect to any matter of liability or obligation, such law, if shown to the court, should be followed in that matter in respect to which they so agree, though it differ from the maritime law as imderstood in the country of the forum; for, as 65 CONSULAR CASES respects the parties concerned, it is the maritime law which they mu- tually acknowledge. The Scotland, 105 U. S. 24, 31. The first of these qualifications can rarely be called into requisi- tion at the present day, since, for more than 20 years past, all the principal maritime nations of the world (at least, those whose ves- sels navigate the Atlantic ocean) have concurred in adopting a uni- form set of rules and regulations for the government of vessels on the high seas. These rules and regulations have become international, and virtually a part of the maritime law. The Scotia, 14 Wall. 171, 1S7. They will be presumed to be binding upon foreign as well as domestic ships imless the contrary is made to appear. "We are then brought to the question of the merits of the case between the parties as shown by the pleadings and finding of facts. And this does not require any extended discussion. It is shown that the bark had her proper lights burning brightly, visible on a dark night, and with a clear atmosphere, at least two miles; and that, in character and location, they conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade, (or the international rules before referred to;) that the mast-head light of the steamer was sighted right ahead, distant about a mile; that the bark was kept steady on her course imtil the steamer was al- most upon her and apparently about to run her down; that then the order was given to put the helm hard a-port ; that in a few seconds the steamer's starboard light came in view, and in another instant she struck the bark in her port side, cutting her in two obliquely. In all this we see nothing that the people in charge of the bark did which it was not their duty to do by the international rules. It was their duty to keep her steady on her course, and it was the duty of the steamer to see the bark and to avoid a collision. On the other side, it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the bark, end on, at about 11 knots an hour; that she had a lookout on the lee side of her bridge, (which was over 150 feet from her bow,) where the officer in charge of the deck also was, but had no other look- out on duty. The rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant foreca.stle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a head- sea, and taking so much water over her bows that he would have been of no iLse there. The bark was not seen by those in charge of the steamer until ju.st at the instant of the collision ; yet objects could be seen at a distance of from 500 yards to a mile, and the port light of 66 CONSULAR CASES the bark was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and was reported to his room- mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companion-ladder, cross the deck, and reach the steamer's rail. We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the sub- stance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the bark, and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout. It is argued that there is no express finding of negligence or fault, as matter of fact, but only as an inference from the facts found. But we think that the facts found furnish such conclusive proof of negli- gence that it may be regarded as properly found among the conclu- sions of law as a legal inference from those facts. U. S. v. Pugh, 99 U. S. 265. The counsel of the appellants suppose that the court below found the Belgenland in fault on the mere presumption arising from the fact of collision, and the primary duty of the steamship to avoid it. But this is not a just view of the decision. There was much more in the facts of the case than the existence of such a presumption, as the foregoing rehearsal of the facts clearly shows. The ability to see objects at a distance; the fact that the men in charge of the steamer failed to see the bark, while a passenger did see her from his room; the fact that there was but one lookout for such a large steamer ; that other lookouts could have been stationed on the turtle-back; the fact that the speed was not slackened, and no precautions taken to get a better view ahead; — these facts, in addition to the presumption aris- ing from the steamer's duty, present a very different case from that supposed by the appellants. The decision of the court must be taken as the collective result from the whole case. It cannot be judged from mere isolated expressions in the opinion. The rule contended for by the appellants, that negligence and fault must be proved, and not presumed, is undoubtedly a sound one, and hardly needs cases to support it. But the circuit court evidently did not rest the case on presumption, but upon proof, from which it properly deduced negligence on the part of the steamship. At all events, this court, upon a careful consideration of the facts found, is satisfied that there was such negligence, and that it was the cause of the catastrophe. The decree of the circuit court is affirmed, with interest to be added to the amount from the date of the same.^ ^Trom 5 Sup. Ct. Eep. 860. 67 CONSULAR CASES BELLO CORRUNES, (1821, U. S.— Spain) 6 Wheat. 152. Johnson, Supreme Court. • •*•***** The attorney-general, for the United States, argued, that the offi- cers of the government being in (156) possession of this property, would hold it as a droit until some person appeared duly authorized to claim it. The consul of Spain has no authority to claim, in his own name, and in his official character, the property of persons to him imknown, and by whom he cannot therefore have been vested with a special procuration. He is not invested with a general authority for that purpose, virute officii, nor is there evidence in this particular case that the consul is the agent, consignee, or correspondent of the o^vners, who are sometimes permitted to claim for their principal, when the latter is absent from the country. Great public incon- veniences and mischief might (157) follow from allowing foreign consuls, not specially authorized by their own government, or by this, nor by the parties, to receive restitution of property, for which they may interpose a claim as belonging to their fellow-subjects, ********* (161) Mr. "Webster and Mr, "Wheaton, for the respondent and claimant, the Spanish consul, contended, that the consul, from the necessity of the case, had a right to interpose a claim for the property of his fellow-subject, brought into our ports in this manner. He does not claim as attorney in fact, but his character is more like an at- torney at law. There is no necessity of a special procuration from those for whom he claims, because it does not follow that the prop- erty will be actually delivered into his hands until the respective rights of the o^\^lers are determined, and a special authority produced from them to receive distribution. There is the more necessity for permitting the consul, as the official protector of the commercial rights and interests of his fellow-subjects in a foreign country, to interpose a claim in a case of this nature, because the usual term of a year and a day allowed in prize causes, where there is no claim, would not be allowed here, since the property is demanded by the captors under their pretended commission, and if the subjects of Spain, residing at a distance, and ignorant even of the fact of the capture, were not al- lowed to be represented by their consul, the property would be taken away by the captors, and irrevocably lost to the original owners. It will also frequently be impossible for the consul to specify the owners for whom he claims, and he ought, therefore, to be allowed to file alle- gations claiming it for Spanish subjects generally. The opinion of M, Portalis on the case of The Danish Consul, proceeds entirely upon the G8 CONSULAR CASES peculiar (162) regulation of France, which makes the procureur- general, the official attorney of all persons who are not represented before the tribunals by any special procuration; which would, of course, render unnecessary the interposition of foreign consuls in cases where the rights of their countrymen were involved. Mr. Justice Johnson delivered the opinion of the court: (Ex- tract) To these several claims it is objected on behalf of the United States, that restitution cannot be decreed to the Spanish vice-consul because he is not in that capacity a competent party in court to as- sert the rights of the individual subject ; nor, in favor of the captors, because the privateer was originally fitted out in the United States, and is still owned by American citizens; nor, in favor of the salvors, because (168) they have forfeited their claim to salvage by spoliation, and an attempt to smuggle. As these suggestions open the whole case, it shall be disposed of by considering them severally in their order, only remarking, en passarit, that though they are all sustained, it would avail the United States nothing : since, without evidence sufficient to sustain the crim- inal charge, it would only follow that the proceeds of the property libeled must lie in the registry of the court until a proper claimant shall make his appearance. On the first point made by the attorney-general, this court feels no difficulty in deciding, that a vice-consul duly recognized by our government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any court having juris- diction of causes affected by the application of international law. Ta watch over the rights and interests of their subjects, wherever the pur- suits of commerce may draw them, qt the vicissitudes of human af- fairs may force them, is the great object for which consuls are de- puted by their sovereigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States, has sanctioned the exercise of this right, and it is im- possible that any evil or inconvenience can flow from it. Whether the powers of the vice-consul shall in any instance extend to the right to receive, in his national character, (169) the proceeds of property libeled and transferred into the registry of a court, is a question rest- ing on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recog- nized. Much, in this respect, must ever depend upon the laws of the country from which, and to which, he is deputed. And this view of 69 CONSULAR CASES the subject will be found to reconcile the difficulties supposed to have been presented by the authorities quoted on this point. Con- sidering, then, the original Spanish interest as legally represented, the questions are, whether that interest is not forfeited to the United States, or superseded by the superior claims of the capturing vessel. BENITO ESTENGER, THE, (1900, U. S.) 176 U. S. 568. Fuller, Supreme Court. (Extract) Moreover, a United States consul has no authority by virtue of his official station to grant any license or permit the exemp- tion of a vessel of any enemy from capture and confiscation. BENSON V. McMAHON, (1887, U. S.— Mexico) 127 U. S. 457. Miller, Supreme Court. [Case in which the Mexican consul-general at New York secures the commitment for extradition. — Ed.] BERNARD v. GREENE, (1874, U. S.— Great Britain) 3 Sawy. 230; Fed. Cases 1,349. Deady, District Court. (235) (Extract) As to the protest of the vice-consul, I do not find in it any sufficient reason for declining the jurisdiction. He is not the representative of the libellants, nor authorized to speak for their governments, because they are not British subjects. Practically they are residents of and domiciled in this country. They came here from the Argentine Republic on a voyage which, as to them, termin- ated here. The parties can not be remitted to a home forum, for being subjects of different governments there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found. Such is this court. Neither is the probable detention of the vessel any reason why this court should decline to do justice to these suitors. If the owners have committed their vessel to the care of a master and mate who are detained in foreign ports to an-(236)swer for injuries done to third persons, it is their misfortime — it may be their fault — certainly it is no fault of these libellants, and they ought not to suffer for it or be delayed or hindered on account of it, in seeking redress for their al- leged WTongs. 70 CONSULAR CASES The court which the consul is about to organize, to inquire into these matters, has not yet been organized, and if it was a case of con- current jurisdiction, the jurisdiction of this court having first attach- ed would be thenceforth exclusive. But this consular court, or rather "naval court," as it is called in the regulations, has no jurisdiction over this claim of the libellants or power to give them relief. It is a court or board of inquiry, convened for the purpose of ascertain- ing whether certain crimes against British law have been committed on the vessel, and if so, send the accused parties, with the witnesses, home for trial. Suppose this naval court find that the defendants were guilty of an aggravated assault or assaults upon the libellants, and is able to send them home for trial, how does that affect the claim of the libellants? The defendants may be required to answer both civiliter and criminaliter for acts injurious to others. In the one case, the proceeding is a civil suit by the party injured for damages for the injury. In the other, it is a prosecution by the public to punish the party for the commission of an offense against society. The trial of this suit in this court in no way "calls in question the official action" of such naval court, even if it had already taken action in the premises. For the purpose of which it will inquire into the conduct of the defendants towards these libellants, this court has no right to take cognizance of the matter. On the other hand, concerning the re- dress sought to be obtained by this suit against the defendants on ac- count of such conduct, that tribunal has neither duty nor authority. In Patch V. Marshall, 1 Curtis, 452, the court took jurisdiction of a libel for a tort by a seaman against the master of a British vessel, notwithstanding the protest of the British consul: "That an investi- gation of some of the alleged causes of damages must call in question official acts and conduct of a British functionary in regard to Brit- ish subjects, for which he is responsible only to his own government." In passing upon this point, the court, Curtis, J. (p. 455), says: "It is true this court should not call in question a British consul for his official acts respecting the crew of a British vessel in a foreign port. * * * But it does not follow that the conduct of the master of such a vessel, in procuring the official intervention of the consul, upon false allegations, to the injury of an American citizen, by imprisonment in a foreign jail, is not to be here investigated. ' ' Upon the whole, I think this is a very clear ease in favor of exer- cising the jurisdiction. In the language of Patch v. Marshall, supra, "to require these libellants to follow these defendants over the world, until they can find them in a British port would practically deprive them of all remedy. I do not think any considerations of public con- 71 CONSULAR CASES venienee, or the comity extended by the courts of admiralty of one country to those of another, have any applicability to such a case." The protest and exceptions are overruled. BETTY CATHCART, THE, (1799, Great Britain) 1 Rob. C. 220. Sir William Scott, High Court of Admiralty. (221) (Extract) The ship had been a British vessel taken by the French and carried into an American port. The British consul in- terposed, and the subordinate court in America determined, in perfect consistence with the laws of neutrality, that it was a capture unlaw- fully made in violation of their particular neutrality, and restored the vessel. An appeal was prosecuted to the superior court, and it was agreed, to prevent the destruction of the vessel by its rotting in a har- bor during the pendency of this appeal, that the ship should be sold and the proceeds should remain to abide the event of the ultimate ad- judication. In this state the vessel was purchased by a Mr. Penman of Charles-Town, according to his declaration, for the former owners, if they elected to take it ; otherwise for Simpson and Davidson, British merchants, correspondents of his in London, in whose names and on whose account it was actually purchased. Mr. Penman then ap- plied, by means of the British consul, who witnesses the whole of the transaction, to the French consul for the ship's register and other documents. The French consul refused. Application was made to the American court which had decreed the sale, to compel a delivery of the British papers, but the American court declined interfering to that effect, upon the application of the British consul, who certifies the fact, and puts his certificate on board, stating what had passed, and that the "ship is and continues a British bottom, and that he does this for the security of British owners." The ship, thus deprived of her papers, sails * * *. BIRD, EX PARTE, (1802, Great Britain) 2 D. M. & G. 9G3; 42 Eng. Eep. 1148. Lord Justices, Chancery. A question arose in this case as to the sufficiency of an affidavit under the 243d section of the Bankrupt Law Consolidation Act, 1849, which, after providing that affidavits to be made or used in matters of bankruptcy, or in any matter or proceeding whatever under the act, shall and may be sworn in England, Scotland, or Ireland, as there mentioned, proceeds thus: "or elsewhere, before a magistrate 72 CONSULAR CASES and attested by a notary, or before a British minister, consul, or vice- consul." The affidavit purported to be sworn before a magistrate at New- York, and there was a notarial certificate that the gentleman described in the jurat as a magistrate actually filled that office. Mr. Hugh Hill and Mr. Selwyn, for the respondent, objected that the affidavit was not "attested" by a notary, inasmuch as it did not appear that the notary was present when the affidavit was sworn. Mr. Rolt and Mr. Eddis, for the appellant. THE LORD JUSTICE KNIGHT BRUCE thought the attesta- tion sufficient. THE LORD JUSTICE LORD CRANWORTH asked if there was any settled practice of authority upon the point; (964) and being informed that none had been found, his Lordship said that if there were no precedent the court would make one in this case. That such a form of attestation was sufficient appeared plain. The legislature intended that affidavits should be sworn before some functionary duly authorized to receive them, and that where such functionary was a foreign functionary, the fact of his authority should be attested by the certificate of a notary. Where affidavits were made before a British minister, consul, vice-consul, no notarial certificate was re- quied; and the reason for that was, because the fact of such persons filling their respective offices was easily capable of proof, independent- ly of any material attestation or certificate. BISCHOFFSCHEIM v. BALTZER, (1882, U. S.) 10 Fed. Rep. 1. Blatchford, Circuit Court. (Extract) Under sections 863 and 1750 of the Revised Statutes, depositions de bene esse in civil causes may be taken in a foreign coun- try by any secretary of legation or consular officer. BIXBY V. JANSSEN, (1869, U. S.) 6 Blatchf. 315; Fed. Cases 1,452. Blatchford, Circuit Court. This was an action on contract, tried before the court without a jury. Spaulding & Richardson, for the plaintiff. Henry D. Lapaugh, for the defendants. BATCHFORD, J. I do not think, on the evidence, that the firm 73 CONSULAR CASES of Janssen. Schmidt & Ruperti is liable to the plaintiff for the claim sued for. I think, however, that the persons who composed the form- er firm of J. W. Schmidt & Co., on the 23d of February, 1865, are lia- ble for it. Those persons were John W. Schmidt, Edward Vonder- heydt. and the defendant Janssen. The defendant Schmidt, who is consul in the United States for the kingdom of Saxony, was not a member of the firm of J. W. Schmidt & Co. on the 23d of February, 1865. He became such in March, 1865. It is only by reason of his being a foreign consul that this court has any jurisdiction of this ac- tion. The defendant Janssen was a member of the firm of J. W. Schmidt & Co. on the 23d of February', 1865, and, as such, is liable to the plaintiff for the claim sued for, according to the written mem- orandum of that date ; but, as the firm of Janssen, Schmidt & Ruperti, as a firm, is not liable for the claim, and there can be no recovery in this suit against the defendant Schmidt, the consul, the jurisdiction of the court to give judgment against Janssen fails, he having been properly sued in this court only as a copartner with the defendant Schmidt, and being, in fact, sued only as a member of the firm of Janssen, Schmidt & Ruperti, and his liability as such copartner not being established. Janssen, though liable, as a member of the firm of J. W. Schmidt & Co. on the 23d of February, 1865, for this claim, must be sued for it in a state court. I, therefore, find for the defendants. BLANCHE V. EANGEL, see The Nina. BORS v. PRESTON, (1884, U. S.) Ill U. S. 252; 4 Sup. Ct. Rep. 407. Harlan, Supreme Court. In error to the circuit court of the United States for the Southern District of New York. HARLAN, J. Tliis action was brought in the circuit court of the United States for the Southern District of New York. The plaintiff, Preston, is a citizen of that state, while the defendant is the consul, at the port of New York, for the kingdom of Norway and Sweden. The object of the action is to recover damages for the alleged unlawful conversion by defendant, to his own use, of certain articles of mer- chandise. The answer denies the material allegations of the com- plaint, and, in addition, by way of counter-claim, asks judgment against the plaintiff for certain sums. To the counter-claim a replica- tion was filed, and a trial had before a jury, which resulted in a 74 CONSULAR CASES verdict in favor of plaintiff for $7,313.10. For that amount judgment was entered against the defendant. The assignments of error question the jurisdiction of the circuit court, under the constitution and the laws of the United States, to hear and determine any suit whatever brought against the consul of a foreign government. Some reference was made in argument to the fact that the defendant did not in the court below plead exemption, by virtue of his official character, from suit in a circuit court of the United States. To this it is sufficient to reply that this court must, from its own inspection of the record, determine whether a suit against a person holding the position of consul of a foreign government is ex- cluded from the jurisdiction of the circuit courts. In cases of which the circuit courts may take cognizance only by reason of the citizen- ship of the parties, this court, as its decisions indicate, has, except under special circumstances declined to express any opinion upon the merits on appeal or writ of error where the record does not affirma- tively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumption, in every stage of the cause, is that it is without their jurisdiction, unless the contrary appears from the record. Grace v. American Ins. Co. 109 U. S. 283 ; S. C. 3 Sup. Ct. Rep. 207 ; Robertson v. Cease, 97 U. S. 646. Much more, therefore, will we refuse to determine on the merits, and will reverse on the point of jurisdiction, cases where the record shows affirmatively that they are of a class which the statute excludes altogether from the cognizance of the circuit courts. If this were not so it would be in the power of the parties, by negli- gence or design, to invest those courts with a jurisdiction expressly denied to them. To these considerations it may be added that the exemption of the consul of a foreign government from suit in par- ticular courts is the privilege, not of the person who happens to fill that office, but of the state or government he represents. It was so decided in Davis v. Packard, 7 Pet, 284. "While practically it may be of no consequence whether original jurisdiction of suits against consuls of foreign governments is conferred upon one court of the United States rather than another, it is sufficient that the legislative branch of the government has invested particular courts with juris- diction in the premises. We proceed, then, to inquire whether, under the constitution and laws of the United States, a circuit court may, under any circum- stances, hear and determine a suit against the consul of a foreign gov- ernment. In other words, whether other courts have been invested with exclusive jurisdiction of such suits. The constitution declares that "the judicial power of the United States shall extend * * * 75 CONSULAR CASES to all cases affecting ambassadors or other public ministers and con- suls;" to controversies between citizens of a state and foreign citi- zens or subjects; that "in all cases affecting ambassadors, other pub- lic ministers and consuls, * * * i\^q supreme court shall have original jurisdiction;" and that in all other cases pre\aously men- tioned in the same clause, "the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make." The judiciary act of 1789 invested the district courts of the United States with "jurisdic- tion, exclusively, of the courts of the several states, of all suits against consuls or vice-consuls," except for offenses of a certain character; this court with "original, but not exclusive jurisdiction of all suits * * * in which a consul or vice-consul shall be a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. 1 St. 76-80. In this act we have an affirmance by the first congress — many of whose members participated in the Convention which adopted the constitution, and were therefore conversant with the purposes of its framers — of the principle that the original juris- diction of this court of cases in which a consul or vice-consul is a partj'-, is not necessarily exclusive, and that the subordinate courts of the Union may be invested with jurisdiction of cases affecting such representatives of foreign governments. On a question of constitu- tional construction, this fact is entitled to great weight. Very early after the passage of that act the case of U. S. v. Ravara, 2 Dall. 297, was tried in the circuit court of the United States for the district of Pennsylvania, before Justices "Wilson and Iredell, of this court, and the district judge. It was an indictment against a consul for a mis- demeanor of which, it was claimed, the circuit court had jurisdiction under the eleventh section of the judiciary act, giving circuit courts "exclu.sive cognizance of all crimes and offenses cognizable imder the authority of the United States," except where that act "otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein." In behalf of the accused it was con- tended that this court, in virtue of the constitutional grant to it of original jurisdiction in all cases affecting consuls, had exclusive jur- isdiction of the prosecution against him. Mr. Justice "Wilson and the district judge concurred in overruling this objection. They were of opinion that although the constitution invested this court with original jurisdiction in cases affecting consuls, it was competent for congress to confer concurrent jurisdiction in those cases upon such inferior courts as might by law be established. Mr. Justice Iredell dissented, upon the ground that the word "original," in the clause of the 76 CONSULAR CASES constitution under examination, meant exclusive. The indictment was sustained, and the defendant upon the final trial, at which Chief Jus- tice Jay presided, was found guilty. He was subsequently pardoned on condition that he would surrender his commission and exequatur. In U. S. V. Ortega, 11 Wheat. 467,— which was a criminal prose- cution, in a circuit court of the United States, for the offense of of- fering personal violence to a public minister, contrary to the law of na- tions and the act of congress, — one of the questions certified for deci- sion was whether the jurisdiction conferred by the constitution upon this court, in cases affecting ambassadors or other public ministers, and consuls, was not only original, but exclusive of the circuit courts. But its decision was waived and the case determined upon another ground. Of that case it was remarked by Chief Justice Taney, in Gittings v. Crawford, Taney, Dec. 5, that an expression of opinion upon that question would not have been waived had the court re- garded it as settled by previous decisions. In Davis v. Packard, uhi supra, upon error to the court for the correction of errors of the state of New York, the precise question pre- sented was whether, under the constitution and laws of the United States, a state court could take jurisdiction of civil suits against for- eign consuls. It was determined in the negative upon the ground that, by the ninth section of the act of 1789, jurisdiction was given to the district courts of the United States, exclusively of the courts of the several states, of all suits against consuls and vice-consuls, except for certain offenses mentioned in the act. The jurisdiction of the state courts was denied because — and no other reason was assigned — jur- isdiction had been given to the district courts of the United States exclusively of the former courts, — a reason which, probably, would not have been given had the court, as then organized, supposed that the constitutional grant of original jurisdiction to this court, in all cases affecting consuls, deprived congress of power to confer concur- rent original jurisdiction, in such cases, upon the subordinate courts of the Union. It is not to be supposed that the clause of the con- stitution giving original jurisdiction to this court, in cases affecting consuls, was overlooked, and therefore the decision in that case may be regarded as an affirmance of the constitutionality of the act of 1789, giving original jurisdiction in such cases also to district courts of the United States. And it is a significant fact that in the decision in Davis v. Packard, Chief Justice Marshall concurred, although he had delivered the judgments in Marbury v. Madison, 1 Cranch, 137, 1; Cohens v. Virginia, 6 Wheat. 264; and Osborn v. U. S. Bank, 9 Wheat. 738, some of the general expressions in which are not infre- quently cited in support of the broad proposition that the jurisdiction 77 CONSULAR CASES of this court is made by the constitution exclusive of every other court, in all cases of which by that instrument it is given original jurisdiction. It may also be obser\'ed that of the seven justices who concurred in the judgment in Davis v. Packard, five participated in the decision of Osborn v. U. S. Bank. In St. Luke's Hospital v. Barclay, 3 Blatchf. 259, which was a suit in equity in the circuit court of the United States for the South- em district of New York, the question w^as distinctly raised whether the consular character of the alien defendant exempted him from the jurisdiction of the circuit courts. The jurisdiction of the circuit court was maintained, the opinion of the courts being that the juris- diction of the district court was made by statute exclusive only of the state courts, and that under the eleventh section of the act of 1789, the defendant being an alien, — no exception being made therein as to those who were consuls, — was amendable to a suit in the circuit court brought by a citizen. Subsequently the question was reargu- ed before IMr. Justice Nelson and the district judge, and the proposi- tion was pressed that the defendants could not be sued except in this court or in some district court. But the former ruling was sustained. In Graham v. Stucken, 4 Blatchf. 50, the same question was carefully considered by Mr. Justice Nelson, who again held that the constitutional grant of original jurisdiction to this court in cases af- fecting consuls; the legislative grant in the act of 1789 to this court of original but not exclusive jurisdiction of suits in which a consul or vice-consul is a party; and the legislative grant of jurisdiction to the district courts, exclusive of the state courts, of suits against con- suls or vice-consuls, — did not prevent the circuit courts, which had jurisdiction of suits to which an alien was a party, from taking cognizance of a suit brought by a citizen against an alien, albeit the latter was at the time the consul of a foreign government. In Gittings v. Crawford, Taney, Dec. 1, which was a suit upon a promissory note brought in the district court of the United States for Maryland, by a citizen of that state against a consul of Great Britain, the point was made in the circuit court on writ of error that by the constitution of the United States this court had exclusive jurisdiction of such cases. The former adjudications of this and other courts of the Union were there examined and the conclusion reached — and in that conclusion we concur — that as congress was not expressly prohibited from giving original jurisdiction, in cases affecting consuls to the inferior judicial tribunals of the United States, neither public policy nor convenience would justify the court in implying such prohibition, and upon such implication pronounce 78 CONSULAR CASES the act of 1789 to be unconstitutional and void. Said Chief Justice Taney: "If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects the supreme court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdiction over a certain subject-matter to one court does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere af- firmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter." Taney, Dec. 9, After alluding to the fact that the position of consul of a foreign government is some- times filled by one of our own citizens, he observes : "It could hardly have been the intention of the statesmen who framed our constitu- tion to require that one of our citizens who had a petty claim of even less than five dollars against another citizen who had been clothed by some foreign government with the consular office, should be com- pelled to go into the supreme court to have a jury summoned in order to enable him to recover it ; nor could it have been intended that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offense that might be committed by a consul in any part of the United States ; that consul, too, being often one of our own citizens." Such was the state of the law when the Revised Statutes of the United States went into operation. By section 563 it is provided that "the district courts shall have jurisdiction * * * of all suits against consuls or vice-consuls," except for certain offenses; by section 629, that "the circuit courts shall have original jurisdiction" of certain classes of cases, among which are civil suits in which an alien is a party; by section 687, that this court shall have "original but not exclusive jurisdiction of all suits * * * in which a con- sul or vice-consul is a party;" and by section 711, that the jurisdic- tion vested in the courts of the United States in the cases and pro- ceedings there mentioned — among which (paragraph 8) are "suits against ambassadors or other public ministers or their domestics, or domestic servants, or against consuls, or vice-consuls" — shall be ex- clusive of the courts of the several states. But by the act of February 18, 1875, that part of section 711 last quoted was repealed, (Supp. Rev. St. p. 138, par. 18,) so that, by the existing law, there is no 79 CONSULAR CASES statutory provisiou which, in terms, makes the jurisdiction of the courts of the United States exclusive of the state courts in suits against consuls or vice-consuls. It is thus seen that neither the con- stitution nor any act of congress defining the powers of the courts of tlie United States has made the jurisdiction of this court, or of the district courts, exclusive of the circuit courts in suits brought against persons who hold the position of consul, or in suits or proceedings in which a consul is a party. The jurisdiction of the latter courts, con- ferred without qualification, of a controversy between a citizen and an alien, is not defeated by the fact that the alien happens to be the consul of a foreign government. Consequently the jurisdiction of the court below cannot be questioned upon the ground simply that the defendant is the consul of the kingdom of Norway and Sweden. But as this court and the district courts are the only courts of the Union which, under the constitution or the existing statutes, are invested with jurisdiction without reference to the citizenship of the parties, of suits against consuls, or in which consuls are parties, and since the circuit court was without jurisdiction, imless the defendant is an alien or a citizen of some state other than New York, it re- mains to consider whether the record shows him to be either such citizen or an alien. There is neither averment nor evidence as to his citizenship, imless the conceded fact that he is the consul of a foreign government is to be taken as adequate proof that he is a citizen or subject of that government. His counsel insist that the consul of a foreign country, discharging his duties in this comitry, is, in the absence of any contrary evidence, to be presumed in law to be a citi- zen or subject of the country he represents. This presumption, it is claimed, arises from the nature of his office and the character of the duties he is called upon to discharge. But, in our opinion, the prac- tice of the difl'crcnt nations does not justify such presumption. "Though the functions of consul," says Kent, "would seem to require that he should not be a subject of the state in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is asual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports." 1 Kent, 44. In Gittings v. Crawford, uhi supra, it was said by Chief Justice Taney that, "in this country, as well as others, it often happens that the consular ofifice is conferred by a foreign government on one of our own citi- zens." It is because of this practice that the question has frequently arisen as to the extent to which citizens of a country, exercising the functions of foreign consuls, are exempt from the political and muni- cipal duties which are imposed upon their fellow citizens. Halleck, Int. Law, (London Ed.,) vol. 1, c. 11, § 10 et seq. In an elaborate 80 CONSULAR CASES opinion by Attorney General Gushing, addressed to Secretary Marey, the question was considered whether citizens of the United States, discharging consular functions here by appointment of foreign gov- ernments, were subject to service in the militia or as jurors. 8 Op. Atty. Gen. 169. It was, perhaps, because of the difficulties arising in determining questions of this character that many of the treaties between the United States and other countries define with precision the privileges and exemptions given to consuls of the respective na- tions — exemptions from public service being accorded, as a general rule, only to a consul who is a citizen or subject of the country he represents. Rev. St. D. C. Pub. Treaties, index, tit. ' * Consuls. ' ' But it seems unnecessary to pursue the subject further. When the jurisdiction of the circuit court depends upon the alienage of one of the parties, the fact of alienage must appear affirmatively either in the pleadings or elsewhere in the record. Browna v. Keene, 8 Pet. 115 ; Bingham v. Cabot, 3 Dall. 382 ; Capron v. Van Noorden, 2 Cranch, 126; Robertson v. Cease, supra. It cannot be inferred, argumentatively, from the single circumstance that such person holds and exercises the office of consul of a foreign government. Neither the adjudged cases nor the practice of this government prevent an American citizen — not holding an office of profit or trust under the United States — from exercising in this country the office of consul of a foreign government. Our conclusion is that, as it does not appear from the record that the defendant is an alien, and since it is consistent with the record that the defendant was and is a citizen of the same state with the plaintiff, the record, as it now is, does not present a case which the circuit court had authority to determine. Without, therefore, considering the merits of this cause, the judgment must be reversed, and the cause remanded for such further proceedings as may be con- sistent with this opinion. It is so ordered. GRAY, J. Mr. Justice Miller and myself concur in the judg- ment of reversal, on the ground that the circuit court had no juris- diction of the case, because the record does not show that the defend- ant was an alien, or a citizen of a different state from that of which the plaintiff was a citizen. We express no opinion upon the ques- tion whether, if the record had shown that state of facts, as well as that the defendant was a consul, the circuit court would have had jurisdiction.^ 1 From 4 Sup. Ct. Eep. 407. 81 CONSULAR CASES BROWN V. LANDON. (1883, U. S.) 30 Hun. 57. Daniels, Supreme Court of New York. DANIELS: (Extract) (58) The decedent died in London, in England, where it was alleged in support of the application he left a will making a disposition of his estate. And the applicant for the plaintiff's appointment resulting in the order made by the surrogate was made under the authority of the provisions of the Code, which authorized the issuing of ancillary letters testamentary and of ad- ministration. (Code of Civil Procedure, § § 2695, 2696, 2697.) The petition for the letters w-as in proper form and included the state- ments required to sustain the application. But the papers produced in support of it were irregular and insufficiently authenticated. For this case the law required an exemplified copy of the will and of the foreign (59) letters issued upon its probate, together with the judg- ment or decree admitting it to probate. And by section 952 of the Code of Civil Procedure the manner in which these documents were to be authenticated was prescribed by the legislature, but there was a failure to comply with these provisions of the Code. A certi- ficate of the registrar of the probate court w^as added to what was alleged to be a copy of the will, and to hardly an intelligible state- ment of the action taken upon the application for its probate. And these certificates were authenticated simply and solely by the certi- ficates of the vice and deputy consul-general of the United States in London, who also certified himself to be a notary public of the United States. But that was not such an authentication of the documents as the statutes upon this subject in very plain language directed should be made to authorize the papers themselves to be read in evidence. * ******** (60) The power of attorney from the administratrix appoint- ed in the foreign proceedings, and from the son of the decedent, who was nominated as one of his executors, the others having probably declined to act, was also produced in support of the plaintiff's ap- plication. This was in like manner proved by the certificate of the same vice-consul. But the acknowledgment of this document could properly be taken before such an officer (2 R. S. [6th Ed.], 1142, § 11) ; for while he acted in that capacity he was entitled to exercise the authority vested by law in the consul himself. (U. S. R. S., §§ 1695, 1674, sub. 3.) Davis, P. J., and Brady, J., concurred. Judgment affirmed. 82 CONSULAR CASES BROWN V. THE INDEPENDENCE, (1836, U. S.) Crabbe 54; Fed. Cases, 2,014. Hopkinson, District Court. (Extract) The court do not say that there may not be certain matters in which the official acts of the consul may be proved by his official certificate; but the facts stated in this certificate are not of that character. This is to prove another certificate of the time of Brown's discharge from the hospital; the proceedings of a police court, the sentence of that court, the nature of the wound inflicted on Brown, and the hospital expenses. None of these are official acts of the consul nor did he know one of them of his ovm knowledge. Had he sworn to them it would have been mere hearsay evidence. He certified to facts and proceedings before another tribunal, with which he had nothing to do, and of which he had no knowledge, official or personal. I will admit the certificate so far as to show that the libellant was left at Hamburg, without the consul's knowledge or consent, be- cause that is material, but not to prove the rest that it contains. BROWNE V. PALMER, (1902, U. S.) 92 N. W. 315. Duffie, Supreme Court of Nebraska. (Extract) We conclude, therefore, that a United States Consul, duly accredited by the federal government to a foreign power, may, under our statute, take affidavits or depositions for use in our courts. BRUNENT V. TABER, (1854, U. S.) 1 Sprague 243; Fed. Cases 2,054. Spragiie, District Court. [Speaks of consul's action in the care of sick and injured sea- man left abroad, but seems to raise no question concerning the con- sul or his action. — Ed.] BUCKER V. KIORKGETER, (1849, U. S.) Abb. Adm. 402; Fed. Cases 2,083. Betts, District Court. (408) (Extract) Cases in which the voyage was broken up or ended in this country, or in which the men were disharged here, have been specified as those in which the courts would most readily enforce the payment of wages due, although, by the strict letter of his contract, the seaman was forbidden to ask their aid. Aertsen v. 83 CONSULAR CASES The Aurora, Bee's Adm. R. 160. In one respect, indeed, the Amer- ican courts sliow a greater favor to seamen in these cases, than do the courts of Great Britain ; for the former proceed, irrespective of any interference on behalf of the seaman by his consul or other na- tional representative, whilst the English courts would seem still to insist tliat the sanction of such an officer to the action shall be pro- cured, unless the nature of the case forbids. The Wilhelm Frederick, 1 Ilagg. Adm. R. 138 ; Edw. Adm. J'ur. 128. I am clear that, notwithstanding a stipulation of this sort, the courts of the United States are open for the protection of foreign seamen, left destitute within their jurisdiction, by improper dis- charge, or by the breaking up of the voyage for any other cause than the wreck of the vessel, BURCHARD, THE, (1890, U. S.— Germany) 42 Fed. Eep. 608. Toulmin, District Court. [German Consul has jurisdiction by treaty over disputes in which an American member of a crew of a German ship brings a libel for wages on the ground that he is entitled to a discharge. It is for the consul to decide whether he is entitled to be discharged, even though the court may be of a different opinion as to the correct- ness of his decision. — Ed.] BYERS v. UNITED STATES, (1887, U. S.) 22 Ct. Cl. 60. Richardson, Court of Claims of United States. [Power to provide for salary of consul based in congress alone, so an advance in salary made by executive uncollectible. — Ed.] CAIGNET v. PETTIT, (1795, U. S.— France) 2 Dall. 234; 1 L. Ed. 362. Per Curiam, Supreme Court of Pennsylvania. A person may cease to be a citizen of one country, without becoming a citi- zen of another. This was a etween Frenchmen ; or confined the same to the description of cases therein enumerated, or other cases not arising from transactions in the United StatesT And, further, tliat if the court should be of opinion, that the consular jurisdiction extends generally to all differences and suits between Frenchmen, that then the plaintiff shall discontinue the present action without costs. The court, after hearing the counsel of both sides, on the question pro- posed, were of opinion, that the consular jurisdiction does not extend generally to all differences and suits between Frenchmen. The plaintiff, thereupon, prayed leave to discontinue his said action without costs; which being granted, he did discontinue accordingly. 86 CONSULAR CASES of his official character, he had lost that advantage, by his partnership with the other defendant, who was not entitled to it; and that the act of Assembly makes no difference between persons serving their country abroad, and any other non- residents. After an able argument, the opinion of the court was delivered by Mr. Presi- dent Shippen; agreeably to which, the rule was discharged. GALLON V. WILLIAMS, (1871, U. S.) 2 Low. 1; Fed. Cases 2,324. Lowell, District Court, Wages.— On the 19th of July, 1869, the libellant was shipped at Boston as second mate of the ship Puritan, for a voyage to Melbourne and elsewhere, and back to the United States. That voyage ended at San Francisco in March, 1870. The ship arrived at Melbourne about the 5th of November, 1869 ; and on the 8th of that month, while the vessel was lying at the wharf, some trouble (2) occurred between the first mate and some seamen and their friends from shore, who were drunk and disorderly. The first officer called up the libellant from the hold to assist in restoring order. The libellant took a pistol from his state-room, in order, as he said, to protect himself, and to frighten the men into obedience, and by some accident shot himself in the hand, inflicting a serious wound, which was not fully healed at the time of the trial. A surgeon was sent for, and by his direction the libellant was taken to the hospital. The ship paid the surgeon's bill, and the hospital dues for eleven days, and then the man was discharged from service, and three months' wages were paid into the hands of the consul. The libellant remained in hospital for some weeks longer, and afterwards at Melbourne, until about the 4th of April, 1870, when he was sent home by the consul by way of San Francisco. The master ordered the second mate's clothes to be sent to the consul's office; but the evidence tended to show that they did not come to the actual possession of the man himself. All the extra wages were expended in the care, attendance, and support of the libellant at Melbourne. C. G. Thomas, for the libellant. S. Wells, for the respondent. LOWELL, J. There is some conflict of evidence as to the pre- cise way in which this unfortunate wound was received ; but the ten- dency of the whole testimony is, that it was not incurred wantonly or recklessly, but in the course of what the second officer considered to be his duty. He was summoned hastily to quell what at sea would have been a mutiny, though at the wharf it ought, no doubt, to have a milder name. He says he was violently assaulted by the drunken men, and was knocked down and kicked in the side. The emergency was 87 CONSULAR CASES sudden, and so serious, that the other man, who was called on to aid the first mate, was frightened and did nothing, and the mate himself was presently obliged to call in the police. Assuming, then, as I do, that the first officer, when he saw the pistol, told the second officer not to use it. and that this was a very proper and humane order, yet I do not find the libellant intending to disobey it. On the contrary, the discharge of the pistol appears to have been accidental. (3). Under these circumstances, it does not appear very gracious for the o^^^lers to strain any doubtful appearances against the only man who stood by the mate, and to insist that he went beyond his duty in their service. He was not enforcing a personal right of his o\vn, nor carrying out any personal quarrel. I cannot hesitate to say that this was an injury incurred in the service of the ship. Then his general right under the maritime law w^ould be to have his wounds cured at the ship's expense, and to receive his wages dur- ing the time of his disability, or, at least, during a reasonable time, not exceeding the length of the remainder of the voyage. Harden v. Gorron, 2 Mason, 541 ; The George, 1 Sumner, 151 ; Chandler v. Grieves, 2 H, Bl. 606, n. ; TheLatonia, Crabbe, 63; The Atlantic, 1 Stuart, Vice Ad. 125. There is no evidence of any stipulation in the shipping articles changing or abridging this right. The contract usual in the whaling service gives the officers and men who are discharged for such a cause only wages pro rata; and the validity of such a con- tract has been recognized by this court in Brunent v. Taber, 1 Sprague, 243, and in other cases. An English statute has lately adopted a similar rule. The ship, under that form of contract, re- mains liable for the expense of the man's sickness and of his return home; and in Briment v. Taber it was held, that the seaman having been discharged by the consul by reason of the disability, and with- out being consulted, the two months' extra wages paid to the consul could not be charged to him, unless he had received them. In this case there is a question whether the second mate was discharged with his own consent. The consul certifies that he was "duly" discharged; and the master says he told him he should be obliged to discharge him, and should send his extra pay and his clothes to the consul; that he does not remember what answer was given, but that the libellant made no objection, and he supposed he acquiesced. The libellant denies that he ever assented, or, indeed, ever heard any such conversation. It seems probable that some such notice was given in order to satisfy the consul, and I shall assume that the libellant, being notified, did not protest. The statutes auth- orizing the discharge of seamen, with (4) their own consent, were not intended to apply to a case in which the seaman is confined to his 88 CONSULAR CASES bed on shore, at the time the vessel is to sail, by a severe injury or illness incurred in the service of the ship. Such a discharge is noth- ing more than a recognition of the fact that he cannot go to sea. The statute was intended for a case in which there is some choice ex- ercised to go or stay. And there is no consideration for a relinquish- ment of the seaman's well-established rights, \mless, perhaps, where the two months' extra wages would or might be as much as he would otherwise be entitled to . If a fair contract with full understanding should be arrived at, it might be upheld, though the man were more or less ill ; but that he should lose the right to be cured, and sent home from Australia, by a mere assent to the necessity of leaving him behind, is not within the true intent of the statute. A district judge of great experience is reported to have held that the consul's certi- ficate of the seaman's consent to be discharged is conclusive evidence thereof: Lamb v. Briard, Abbott, Adm. 367; but as the consul has not so certified in this case, that question does not arise. The libellant is not to have damages for a wrongful discharge, be- cause it appears to have been entirely fit to leave him in the hospital ; but he may have wages to the date of the ship's return to San Fran- cisco, which appears to have been a port of discharge within the meaning of the contract, and the port where the seamen were, in fact, discharged. The precise date of the termination of the voyage was not given in evidence, but it was said to be about the 1st of March. This would give three months and a half at $35; that is, $122.50. Concerning the value of the clothes there is much contro- versy ; and what became of them is not shown ; but as no one knows that they ever reached the consul's office, and as the libellant swears he never saw them, he is entitled to recover their fair value. The libel- lant testifies to an amount of clothing which is shown to be more than men in his position usually take to sea, and more than he seemed to possess, on the testimony of the respondents. But his evidence is, to some extent, corroborated by his boarding-house keeper, and the nega- tive evidence, is not full or precise. Allowing for the depreciation which all such property suffers, it seems just to estimate the (5) loss at $150; which, added to the wages, $122.50, makes $272.50. I have not deducted the extra wages, because they appear to have been con- sumed in paying the hospital dues, passage-money, and other expenses for which the ship was liable, the case being in this respect like Brunent v. Taber, cited above. Decree for libellant for $272.50 and costs, 89 CONSULAR CASES CAMPBELL V. STEAMER UNCLE SAM, (1856, U. S.) 1 McAllister 77; Fed. Cases 2,372. McAllister, Circuit Court, (79) (Extract) Such being the conclusion, the court must consider that, released by the breach of the contract by the claim- ants, the seamen were entitled to their discharge according to the gen- eral principles of the law merchant, without the intervention of the consul at Panama, The acts of congress on this (80) subject are cumulative, made for the protection of seamen, and with a view to afford them a prompt remedy ; certainly not to withdraw them from the protection of the courts. "Whatever has been the action of the consul, or the form of his certificate — whether legal or illegal, regu- lar or irregular — it could not be conclusive upon this court, nor shut its door upon the libelants. In Hutchinson v. Coombs (Ware, 65), it is laid down that the certificate as to the discharge of a seaman will not preclude the court from inquiring into the cause of his discharge, and awarding dam- ages if his discharge was unjustifiable. "Whether the law under which the consul acted be constitutional or not; whether, if consti- tutional, the conduct of the consul was in strict accordance with it; whether his action was honest, or, as is alleged, covinous, are not the subjects of inquiry. The question is, ""Were the libelants entitled to their discharge?" After the breach of the contract by the claimants, and the detention of the libelants, arising out of that breach, for upwards of a month at Panama, I consider them entitled to such discharge. It is proper to dispose of two objections urged by the proctor for respondents. It is urged that there is error in the court below in permitting the discharge of libelants at Panama by the certificate of the consul, which is not made evidence by law, A threefold answer was given: first, it appears by the judge's notes on file that libelants proffered to establish their discharge by parol testimony, that respondents objected to its competency, and, upon their motion, it was ruled out by the court; second, no exception was taken in the court below to the admission as evidence of the con- sul's certificate; and (81) third, the exhibit "A" annexed to the answer, being the protest of the master, expressly admits the dis- charge, and only insists on its irregularity. CAEOLINA, THE, see Fry v. Cook. 90 CONSULAR CASES CASTRO V. De URIARTE, (1883, U. S.— Spain) 16 Fed. Eep. 93. Brown, District Court. BROWN, J. This is a motion for a new trial, made by the plaintiff, for alleged error of the court in directing a verdict for the defendant. The action was brought against the defendant, the con- sul general of Spain, for false imprisonment and malicious prosecu- tion in extradition proceedings, upon the complaint of the defendant, in which the plaintiff was arrested and brought before a commis- sioner on October 2, 1881, and subsequently discharged for the reason that the offense of forgery for which he was arrested, was committed, as it subsequently appeared, before the ratification of the treaty with Spain. 12 Fed. Rep. 250. Upon the trial there was no substantial dispute in regard to the facts. The plaintiff was a stranger to the defendant, and the action of the latter was wholly in an official capacity, and under or» ders from his government. The facts clearly negative any express malice. The plaintiff himself, in his testimony, stated that he did not believe there was any malice on the part of the defendant. The court ruled (1) that the warrant was sufficient on its face to authorize the arrest of the accused; (2) that, upon the undisputed facts, the defendant had probable cause for the proceedings, and was not chargeable with malice, and, on that ground, directed a verdict. Exceptions were duly taken to both of these rulings, upon which the motion for a new trial is now made. 1. It is contended that the warrant under which the plaintiff was arrested was void, because it did not show "what act or instru- ment the plaintiff was charged with forging or falsifying." Article 2 of (95) the convention with Spain, January 5, 1877, provides that "persons shall be delivered up who shall have been charged with or convicted of any of the following crimes:" "Subdivision 9, forgery or the utterance of forged papers;" subdivision 10, "the forgery or falsification of the official acts of the government or public authority, including courts of justice, or the uttering or fraudulent use of any of the same." The warrant in this case recited that the plaintiff had been charged "with having, in the kingdom of Spain and in its juris- diction, to-wit, at Havana, Island of Cuba, on or about the twenty- fifth day of September, 1881, committed the crime of forgery by forg- ing an official document, or falsification of the official acts of the government of Spain, or public authority." In the case of Macdonnell, 11 Blatchf. 79, 88, the circuit judge says: "The deBcription of the offense might, in my opinion, for all purposes of 91 CONSULAR CASES insertion in the warrant of arrest, have followed the words of the treaty. • * * This is all that is essential to jurisdiction of the subject-matter. It is not necessary that the particulars required to be proved in order to establish the offense mentioned in the treaty should be specified in the warrant. * * » The warrant, reciting other jurisdictional facts, declares that on complaint to the of- ficer ' forgery ' is charged, etc. If there were no other detail or specification, I should hold that, for all the purposes of the warrant of arrest, this was suf- ficient. ' ' At common law it was not necessary to recite the accusation in the warrant. Under the Revised Statutes of New York, vol. 2, p. *706, § 3. and Code Crim. Proc. § § 151, 152, the warrant must state the accusation, offense, or crime; but it is sufficient to state it by its statutory desi^ation without further particulars. Payne v. Barnes, 5 Barb. 465; Atchinson v. Spencer, 9 Wend. 62; People v. Donohue, 84 N. Y. 438. The description of the offense in this warrant con- forms to the requirements of the treaty and to the practice in the state of New York, and such a warrant cannot, upon the above auth- orities, be held void upon its face. See, to the same effect, the very- interesting, late case of Terraz, 4 Exch. Div. 63. 2. It is further contended that the warrant of arrest was void both because no preliminary mandate had been obtained from the executive authorizing the extradition proceedings, and because the warrant did not set forth any such preliminary mandate. In the case of Farez, 7 Blatchf. 34, 46, it is said that where such a preliminary mandate "is made a prerequisite by the treaty," it should be set forth upon the face of the warrant. In my opinion this treaty does not make such a warrant a prerequisite. (96) In the earlier cases in this district it was held, following the opinion of Nelson, J., in Ex parte Kaine, 3 Blatchf. 1, that a preliminary mandate from the executive was in all cases necessary to authorize a commissioner to entertain the proceedings, whether the treaty contained any reference to such a preliminary mandate or not. This was questioned by Woodruff, C. J., in the case of Macdonnell, 11 Blatchf. 79, 83; and in the case of Herman Thomas, 12 Blatchf. 370, 379, the circuit and district judges in this district concurred that no such preliminary mandate was necessary, "except where made so by the treaty." In that case the proceedings were instituted under the treaty with Bavaria, which like the treaty with Great Britain, makes no allusion to any preliminary mandate of the executive. See, also, in re Kelley, 2 Low. 339, Article 11 of the convention with Spain declares that "requisi- tions for the surrender of fugitives from justice shall be made by the respective diplomatic agents of the contracting parties," or, in their absence, by its "superior consular officers." It next provides, that — 92 CONSULAR CASES "It shall be competent for such representatives or such superior consular of- ficers to ask and obtain a mandate or preliminary warrant of arrest for the per- son whose surrender is sought, whereupon the judges and magistrates of the two governments shall, respectively, have i>ower and authority, upon complaint made under oath, to issue a warrant for the apprehension of the person charged, in order that he or she may be brought before such judge or magistrate, that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive author- ity, that a warrant may issue for the surrender of the fugitive." The "requisition for surrender" above provided for is mani- festly the application for the final warrant for the surrender of the fugitive, which can only be executed by the executive authority, after the judicial examination. That requisition is wholly different from the "mandate or preliminary warrant of arrest," which it is also "competent to ask, and obtain," at the outset; and while it is thus competent to ask for such a preliminary warrant, the language of this section of the treaty is plainly permissive, and not necessarily obligatory, if other means are provided by law for obtaining a judi- cial investigation, preliminary to final surrender. Such means are plainly provided by section 5270 of the Revised Statutes, embodying the act of August 12, 1848, (9 St. at Large, 302.) This section provides that — "Whenever there is a treaty or convention for extradition," etc., "any jus- tice, commissioner, ' ' etc., ' ' may, upon complaint made under oath, charging any person found within the limits of any state, district, or territory with (97) having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such jus- tice or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge * * * he shall certify the same to the secretary of state, that a war- rant may issue upon the requisition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention, and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made." The treaty with Spain was made on January 5, 1877, subsequent to the Revised Statutes ; but section 5270 is evidently intended to ap- ply to treaties that might thereafter be made, as well as to treaties then existing. It was so held in the case of Van Hoven, 4 Dill. 411, 414; and the act of August 12, 1848, which was substantially the same as section 5270, expressly declared that these provisions are to be applied "in all cases in which there now exists, or hereafter may exist, any treaty or convention for extradition." 93 CONSULAR CASES Treaties duly ratified under the constitution (article 6) are doubtless a part of the supreme law of the land, and their stipula- tions and obligations will not be deemed annulled by acts of mere general legislation which can be reasonably construed otherwise. The Cherokee Tobacco, 11 Wall, 616, 623; Taylor v. Morton, 2 Curt. 454; Ropes v. Clinch, 8 Blatchf. 304, 309. But the mere fact that a treaty provides a mode of carrying out its provisions, in the ab- sence of legislation, cannot make it incompetent for congress to pass laws in aid of the treaty, and, in order to faciliate the extradition of criminals, to dispense with a part of those preliminaries which otherwise it might be necessary for the foreign government to resort to. The procedure indicated by section 5270, above quoted, is in substance identical with that contemplated by the treaty with Spain, except that it dispenses with any preliminary executive warrant. Had there been no law of congress upon the subject, such an executive warrant would have been necessary in order to authorize the magis- trates to proceed; but. inasmuch as the law of this country express- ly authorizes the magistrates to proceed, "whenever there is a treaty or convention for extradition," without reference to any preliminary executive warrant, such a warrant seems to me clearly unnecessary, if the demanding government chooses to avail itself of the law exist- ing outside of the treaty, and proceed without the preliminary man- date. (98) This construction of the treaty has been adopted by the executive department. In an official letter from Mr. Frelinghuysen, secretary of state, to the Spanish minister, bearing date May 23, 1862, after referring to section 5270, Rev. St., above quoted, it is said : "This provision of the statutes of the United States is deemed by this gov- ernment to be in aid of the provisions of the convention; and the provisions of article 11 of the convention are held to be directory only. Under these circum- stances the warrant of authorization from the secretary of state is not considered as indispensable. It may often happen that an instant arrest is expedient in ordei to secure the accused fugitive for examination into his criminality; and in such emergencies the delay incident to procuring the warrant of authorization from this department might defeat the purposes of justice. The personal rights, more- over, of the accused are secured by the provisions of the convention, no less than by those of the statute, inasmuch as he can only be surrendered on satisfac- tory evidence of his criminality." While the construction which may be placed by the executive department upon laws or treaties is not necessarily binding upon the judiciary, yet where its construction is not repugnant either to their letter or obivious intent, and, as in this case, is sustained by such manifest considerations of convenience and expediency, it should be adopted without hesitation. This construction is not repugnant to the 94 CONSULAR CASES language of this treaty. The preliminary warrant is permissive only. It is not made obligatory. It is not, in the language of this court in the case of Farez, "made a prerequisite by the treaty." Con- gress might have provided by law, in the absence of any treaty, for an examination of offenders charged with committing crimes in foreign countries, and for their surrender if satisfactory evidence of guilt appeared. A person arrested under such a law could not be heard to complain that there was no treaty requiring his surrender, or, if the statute were followed, that his arrest was illegal. Congress has, in fact, provided that "whenever there is a treaty or convention for extradition," certain proceedings may be had. And this law is without regard to the particular provisions of the various treaties, and requires no previous executive mandate. The proceeding in this case was in strict accordance with this law of congress; and a pro- ceeding which in all respects follows that law and all its conditions cannot be void so as to serve as the basis of an action for false im- prisonment. Nor can it be said that this construction would make wholly useless the terms of a treaty allowing an application for a preliminary mandate. In the first place there may be no general law of Spain providing for any course of procedure outside of the treaty stipulations; and as this convention relates to both countries alike, (99) it may have been necessary then, and may be still, in all cases of applications by our government for the surrender of criminals by Spain, to obtain such a preliminary warrant, in order to authorize the magistrates of that country to proceed with a judicial investiga- tion. Or, again, cases may arise of such a political character that it may be expedient and desirable that the demanding government, upon presentation of the facts, should obtain from the executive an immediate consideration and decision of the question involved in the surrender claimed, without the delay or publicity incident to a previous judicial examination ; and in such a case it is still at the option of the demanding government to require a preliminary war- rant and thus obtain the ruling of the executive at once. In effect, under our law, two proceedings are available to the de- manding government; — one, according to the provisions of the treaty alone ; and the other under the Revised Statutes as well ; and so long as the provisions of neither are repugnant to the other, as in this case they are not, it is at the option of the demanding government to pursue either. But even if it were held that to authorize the final surrender of the accused all the provisions of the treaty should be literally followed, I do not see how, in an action for false imprison- ment, the proceeding on the warrant of arrest can be held void, when it is expressly authorized by a valid law of congress, and exactly fol- 95 CONSULAR CASES lows tho provisions of the statute. This objection, therefore, should be overruled. 3, It is further urged that the court erred in not submitting to the juiy the question of probable cause, on the part of the defendant, in instituting]: the proceedings before the commissioner. On the twenty-ninth of September the defendant, as consul gen- eral, received from the Spanish minister an order to procure the ar- rest of the plaintiff in extradition proceedings, who, it appeared from the telegram from Havana on that day, had sailed from Cuba for New York on the 27th. The consul thereupon applied to the com- missioner, and Avas told that more definite and specific charges were necessary. Being directed by the Spanish minister to communicate directly with the captain general of Cuba, the defendant telegraphed for the particulars of the offense. On the second of October the defendant received in reply a fur- ther telegram, stating that the crime of Castro was obtaining moneys under false pretense, deceit, imposition, and falsification of public documents. In the meantime Castro had arrived, had been traced to Sixteenth street in this city, and it was feared would depart to (100) Canada. The information by telegram was sufficient except in fixing the date of offense. The treaty provided that it should not apply to any offense com- mitted before its date, that is, 1877. In this exigency, the defendant being informed by the commissioner that the precise date of the of- fense was immaterial, provided that it were within the period of the treaty, it was considered under the telegram for extradition that the offense was undoubtedly committed within the treaty period, and probably about the time of his escape; and the complaint was accordingly written out upon information and belief, stating that the time of the offense was on or about September 25, 1881. Upon the warrant issued upon this complaint the plaintiff was arrested and brought before the commissioner the following morn- ing, allowed to go on his own parol upon his statement that the offense alleged was prior to the treaty, and this being verified by telegrams in answer to further inquiries, he was upon the following day discharged. Upon these facts there was no dispute, nor was it claimed that the consul general was actuated by any motives other than the proper performance of an official duty, under the orders received, to procure the extradition of the plaintiff. It appeared upon the trial that the plaintiff had been recently indicted upon this charge of forger>', which had only been discovered in 1880; that he had given bail for his appearance before the proper magistrate in Havana, 96 CONSULAR CASES which he had forfeited by his departure to this country. Under the orders which the consul general had received from the Spanish minister, it was his duty, under heavy penalties to his own govern- ment, to act with diligence. The only questions on this branch of the case were whether the defendant was legally chargeable with malice, and whether, under the circumstances, he had provable cause for charging the offense within the treaty period. To sustain the court for malicious prosecuting, both malice and the want of probable cause must so exist. It seemed to me at the trial, and it seems to me still, that under the undisputed facts there is but one possible answer to both questions, and that is that there was no malice, and that the defendant was warranted in assuming, and was bound to assume, under the circumstances, where immediate action on his part was demanded, that the offense for which he was required to procure extradition was committed within the period of the treaty ; that under such instructions and such telegrams, not only was this probable, but the contrary was (101) highly im- probable; and that had he suffered the accused to escape through a failure to proceed upon the possible but improbable contingency that the date of the offense was prior to the treaty, he would have been justly subject to the charge of negligence of official duty had the crime been committed within the treaty period. As that was the only reasonable inference under the circumstances, the complaint was not without probable cause, as it was also without malice. In the case of Stewart v. Sonneborn, 98 U. S. 187, the court quote with approval the language used in Sutton v. Johnstone, 1 Term R. 493: "The question of probable cause is a mixed question of law and of fact. "Whether the circumstances alleged to show it prob- able are true, and existed, is a matter of fact ; but whether, suppos- ing them to be true, they amount to a probable cause, is a question of law." And, say the court: "This is the doctrine generally adopted. It is therefore, generally, the duty of the court, when evidence has been given to prove or disprove the existence of prob- able cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not." See, also, Heyne v. Blair, 62 N. T. 19. On this branch of the ease there were no facts in dispute, nor, as it seems to me, any rational doubt in regard to the inference to be drawn from them, namely, that there was no malice nor want of probable cause in the proceeding of the defendant; and it was, therefore, the duty of the court to direct a verdict in his favor. Com- missioners V. Clark, 94 U. S. 278, 284. The motion for a new trial should be denied, with costs. 97 CONSULAR CASES CATLETT V. PACIFIC INS. CO., (1826, U. S.) 1 Paine. 594; Fed. Cases 2,517. Thompson, Circuit Court. (Extract) These proceedings purported to be under the seal of the court, certified by the register, and accompanied by a certifi- cate of the American consul, under his seal of office, that he was such register. — I attach no credit to the consular certificate. It has been said that he is an officer recognized by the law of nations, and en- titled to credit. The law of nations recognizes him only in com- mercial transactions, but not as clothed with any authority to authen- ticate judicial proceedings. (LAS) CAYGAS v. LARIONDA'S SYNDIC, (1816, U. S.) •1 Martins Eeports Louisiana 283. Mathews, Supreme Court of Louisiana. (Extract) As the instrument [a power of attorney, purport- ing to have been executed before a notary public] offered in evi- dence is clearly not one of those which could receive authenticity by the certificate of one of the agents of our government. CHARLOTTE, THE, (1804, Great Britain— Russia) 5 Rob. C. 313. Sir William Scott, High Court of Admiralty. (Extract) It is said that the claimant in that instance was the Swedish consul in Russia ; but that circumstance could have made no difference, since it must have been familiar to all who had to judge of that case, that his character of consul to a foreign nation could not vary the principle that was to be applied to it. As a per- son resident in Russia, he could be considered in no other light than other merchants of the country. CHESTER v. BENNER, (1871, U. S.) 2 Low. 70; Fe' by the act of congress. (7 Peters, 276. 8 Id. 324.) That court does not touch the principle established in our state tribunal of last resort, to which I have already referred. It is therefore left in full force for my governance. Consequently I must hold that the privilege of a foreign consul to be exempt from the jurisdiction of state tribunals, must be asserted in due time, and may be waived by a plea to the merits. The motion to quash the proceedings must therefore be denied; but the inquest must be opened, because it was irregular for the plaintiff to put his cause on the calendar after the term had begun, without notice to his adversary. The defendant searched the calendar after the sittings began, and not finding this cause upon it had a right to suppose it would not be called on. To put it upon the calendar after that, and proceed to judgment without 161 CONSULAR CASES notice to him, was an irre^larity on the part of the plaintiff for which the verdict must be set aside. FOEL V. THE SALOMONI, see The Solomoni. FOSTER V. DAVIS, (1822, U. S.— Italy) 1 Litt. 71. Per Curiam, Court of Appeals, Kentucky. 1. Where a man enters into a covenant to transact business in a foreign country, a notarial certificate of Ms being a citizen of the United Statei, &e. Buch as is usually obtained by persons going abroad, is not evidence for Mm of his having made preparations for leaving the United States. 1. 2. A passport, made out by a consul of the United States, residing in a foreign country, permitting such person to return from that country to the United States, is not evidence that he has been in such foreign country. 1. 3. Facts of the above character are completely susceptible of proof by wit- nesses; and as a consul is not a judicial officer, there is no reason for substituting hii certificate in lieu of depositions, for the proof of them. 2. Opinion of the Court: This was an action of covenant, upon articles of agreement between the plaintiff and the defendant, where- by, after reciting that James Schee, the American consul to Genoa in Italy, had undertaken to dispose of the defendant's patent Hemp and Flax Spinning Machine right, to certain states and territories in Europe, it was stipulated on the part of the plaintiff, that he would go with the said Schee, and conduct the business of (72) spinning and exhibiting the said machine; and the defendant, on his part, agreed, in consequence of the above services rendered by the plaintiff, to pay his passage and expenses going and returning to Kentucky, and pay him at the rate of thirty-three and a third dollars per month, while he might be employed in such services, and while he was going and returning from Philadelphia, until he returns to Kentucky, except what time he should choose to tarry on his way, on his own aceount. The plaintiff, after setting forth the agreement in his declaration, alleges a performance of the services undertaken by him to be per- formed, and assigns as a breech of covenant on the part of the de- fondant, his failure to pay the plaintiff's passage and expenses, and the price stipulated for his services. The defendant filed two pleas, one of which was held bad on demurrer; but as the assignment of error does not question the correctness of the decision of the court on the demurrer, the plea need not be recited. By his other plea, the defendant denied that the plaintiff had performed the services by him undertaken to be performed ; and to that plea the plaintiff joined issue to the contrary'. On the trial of the issue, the plaintiff offered to 162 CONSULAR CASES read in evidence a paper under the seal and signature of a notary public at Philadelphia, stating that the plaintiff was a native citizen of the United States of America, and requesting all governments, princes, potentates and powers, to suffer him to pass without moles- tation, etc. To the reading of this paper, the defendant objected; but the court overruled the objection, and suffered it to be read, to show that the plaintiff had taken the preparatory steps for leaving the United States. The plaintiff then offered in evidence a paper signed by James Schee, the consul of the United States at (lenoa, with the consular seal thereto attached, and written in a foreign language. To the admission of this paper as evidence, the defend- ant also objected ; but the court overruled the objection, and permitted it to be used without being read; for there was no person in court who could translate it accurately, though the court understood its purport, sufficiently to know that it was a passport from our consul at Genoa, to the plaintiff, to return to the United States, and so ex- plained it to the jury, and (73) directed the jury that the paper was only to be evidence of the plaintiff's having been at Genoa, and the time of his residence there, and not for any other purpose. To the opinions of the court, in admitting those papers as evidence, the de- fendant excepted ; and a verdict and judgment having been rendered against him, he has appealed to this court. 1. We cannot accord with the circuit court in the propriety of admitting either of those papers as evidence. They are both pretty much of the same character, and being liable to like objections, may well be considered together. They, no doubt, according to the usages of nations, were sufficient to entitle the bearer to that courtesy and respect which are due to a citizen of the United States from foreign governments, through whose states or territories he might pass. It was for that purpose alone they were given, and for no other purpose can they be legitimately used. They certainly cannot, we think, be used as evidence in a court of justice, for the purpose of proving facts, of the character they were admitted to prove in this case. 2. These facts, from their nature, were susceptible of being estab- lished by the testimony of witnesses, upon oath; and it is a settled rule, that for the establishment of facts of this sort, the sanction of an oath is indispensable; and, of course, the ex parte statement or certificate of any one, not upon oath, whatever may be his character or station, cannot be admitted as evidence of the truth of such facts. A consul, by the law of nations, is, no doubt, possessed of high and ex- tensive powers; but he is not, properly speaking, a judicial officer; and it is accordingly held, that his certificate is not only not entitled to 163 CONSULAR CASES the character of a judgment, but that it ought not to be admitted as evidence of the fact therein stated.— Phillips' E v. 287, 301. The judgment must be reversed with costs, and the cause be re- manded, for new proceedings to be had, not inconsistent with the fore- going opinion. lEANgOIS FAREZ, IN EE, see Farez, in re Francois. FEANZ AND ELIZE, THE, (1861, Great Britain) 5 L. T. 290; 1 Lush. 377. Dr. Lushington, High Court of Admiralty. (Extract) But when a foreign seaman sues in this court for his wages, if the consul from his country objects to the proceedings, the court should have immediate notice of that fact, as usually it would not be disposed any longer to entertain the suit. FEOMENT V. DUCLOS, (1887, U. S.) 30 Fed. Rep. 385. Brown, District Court. (Syllabus) The act of congress of February 18, 1875, which amends Eev. St. U. S. § 711, by repealing the previous express exclusion of the state courts at to jurisdiction over suits against consuls, does not diminish the jurisdiction of the federal courts over the same actions. [Prior to the act of 1875. . .this jurisdiction embraced all suits to -which the consul or the vice-consul was a necessary co-defendant.] FEY V. COOK, (1876, U. S.— Great Britain) 14 Fed. Eep. 424. Billings, Di.strict Court. (Extract) The representative of that country asks the court not to intervene. [Consul protested against the courts taking jurisdiction in a libel for an offense committed on the high seas, and court refused to take jurisdiction. — Ed.] GAEDNEE v. BIBBINS, (1833, U. S.) Blatchf. & II. :.:><•>; Fed. Cases 5,222. Beits, District Court. [Master called upon consul and secured soldiers to quell what he declared to be a mutiny. The libellant was awarded damages from the master for improper imprisonment. — Ed.] 164 CONSULAR CASES GENERAL McPHERSON, THE, (1900, U. S.— Germany) 100 Fed. Rep. 860. Hanford, District Court. (Extract) [Article 8 of treaty with Germany] does not con- stitute a German consul administrator of the estate of a deceased person. On the contrary, it only authorizes German consuls to act as legal representatives of the German emperor's subjects. Now Mr. Schultz ceased to be a subject of the emperor when he departed from this mundane sphere, and he has no rights for which the German consul need have a care, for his rights were terminated with his death. ••••••* The case will be dismissed as to all the parties above mention- ed, but, if prompt application is made, leave will be granted to the German consul to amend his pleading, and introduce further proof to identify the heirs of Charles Schultz. GERNON V. COCHRAN, (1804, U. S.) 2 Phillim. (2d Ed.) 270; Bee 209, Fed. Cases 5,368. Bee, District Court. (Extract) By the French and Spanish consuls, who are gen- eral agents for the subjects of their respective countries, not otherwise represented • * * * [In this case the French and Spanish consuls could not agree about the validity of a capture and referred the case to their minis- ter at Philadelphia — the ship to be sold and the proceeds awarded by the minister. The court held that the letter of the French consul-general of France at Philadelphia to the French consul at Charleston saying that the capture had been decided to be illegal by the minister, was conclusive. — Ed. ] GITTINGS V. CRAWFORD, (1838, U. S.) Taney. 1 ; Fed. Cases 5,465. Taney, Circuit Court. In the second section of the 3d article of the constitution of the United States, it is declared that "in all cases affecting ambassadors, other public min- isters, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction ; ' ' held, that this does not conflict with and ren- der unconstitutional the act of congress passed 24th September 1789, sect. 9, giving jurisdiction to the district court of the United States, in civil cases, against consuls and vice-consuls. The grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that that jurisdiction is to be exclusive. 165 CONSULAR CASES A consul if not entitled, by the laws of nations, to the immunities and privileges of an ambassador or public minister. He is liable to civil suits, like any other individual, in the tribunals of the country in which he resides. Circuit Court, April term, 1838. Error to the District Court. TANEY, C. J. The suit in this ease was brought by John S. Gittings against John Crawford, upon a promissory note (2) made by Crawford to Gittings, for $980, dated December 27, 1834, and pay- able twenty days after date. The writ stated the plaintiff to be a citizen of the state of Maryland, and the defendant to be the consul of his Britannic majesty. The defendant appeared to the suit, and moved to quash the writ, on the ground that the district court had no jurisdiction over the case ; the court below sustained the motion, quashed the writ, and gave judgment in favor of the defend- ant for costs. The case has been brought here by the plaintiff, by writ of error, and the question to be now decided by this court is, whether the act of congress of September 24, 1879, § 9, giving juris- diction to the district court of the United States, in cases of this description, against consuls and vice-consuls, is constitutional or not. The clause of the constitution of the United States which is supposed to be violated by this law, is that part of the 2d section of the 3d article, which declares that, "in all cases affecting ambassa- dors, other public ministers and consuls, and those in which a state shall be a party , the supreme court shall have original jurisdiction." It is insisted, that the grant of original jurisdiction in these cases to the supreme court, means exclusive original jurisdiction, and that it is not in the power of congress to confer original jurisdiction, in the cases there mentioned, upon any other court. The question thus presented for the decision of the circuit court, is certainly a difficult and embarrassed one. Different opinions have been expressed upon it by eminent men in high judicial stations; and the difficulties which arise from the words of the constitution itself have been greatly multiplied by the different constructions, which, at different time, have been given to the clause in question. The earliest case upon the subject is in 2 Dall. 297, United States V. Ravara. in the year 1793. That was an indictment in the circuit court against a consul, for a misdemeanor; and the consul for the defendant moved to quash the indict- (3) ment, upon the ground that the clause of the constitution above quoted vested exclusive juris- diction in such cases in the supreme court, and that the act of 1789, which conferred original jurisdiction on the circuit court, was un- constitutional and void. A majority of the court, however, overruled the objection, and decided that the grant of original jurisdiction to 166 CONSULAR CASES the supreme court was not exclusive ; that congress might vest orig- inal jurisdiction, in the cases there enumerated, in other courts, and that the act of 1789, conferring jurisdiction upon the circuit court, was constitutional and valid. At a subsequent term of the circuit court, in 1794, the case came up for trial. Chief Justice Jay presiding, and the court charged that the defendant was not privileged from prosecution in virtue of his consular appointment, and the jury, un- der that charge, found him guilty. It appears, then, that in the circuit court, upon two different occasions, it was held, that the jurisdiction conferred by the constitu- tion upon the supreme court, in cases affecting consuls, was not ex- clusive. And these decisions were made by eminent and distin- guished judges, some of whom had been members of the Convention which framed the constitution, and all of whom had taken prominent and leading parts in the discussions which preceded its adoption by the people. These discussions have all the force and authority which courts have uniformly given to the contemporaneous construction of a law. But the authority of the decisions in the circuit court was shaken by the case of Marbury v. Madison, 1 Cranch 137, where the ques- tion as to the construction of this clause of the constitution came, for the first time, before the supreme court. In the opinion delivered in that case, it was said, in general terms, by the court, that the original jurisdiction conferred on the supreme court was exclusive. In Cohens v. State of Virginia, 6 "Wheat. 378, the construction of this part of the constitution again came under consideration. And although the court reviewed and (4) recalled some of the dicta in the case of Marbury v. Madison, yet what had been there said on the point now in question, was not disturbed, and the court again strong- ly intimated that the clause granting original jurisdiction to the supreme court was so far exclusive, that congress could not grant original jurisdiction, in the cases enumerated, to an inferior tribunal of the United States. And in Osbom v. United States Bank, 9 Wheat. 820, the chief justice distinctly expressed the opinion that the original jurisdiction granted to the supreme court, is exclusive, and cannot be given by congress to any other tribunal. It is worthy of remark, that in two of these three cases in the supreme court, the question was upon the jurisdictions of that court, and not upon the jurisdiction of an inferior tribunal of the United States. And in the last of them, the question was upon the juris- diction of the courts of the United States, as contradistinguished from the state courts; and the further question whether the case be- 167 CONSULAR CASES fore them arose under a law of the United States. In neither of these three, was the point directly presented, whether congress could grant original jurisdiction to an inferior court, in the cases enumerated in the clause now in controversy. All therefore that was said by the court in these cases, on that question, was by way of argument and illustration, and not necessarily involved in the decision of the cases then before the court. And we are warned by the chief justice, in the opinion delivered by him in Cohens v. Virginia, that principles thus stated are not to be regarded as binding adjudications; and some of the principles strongly put forth by him in the case of Mar- bury v. Madison, are repudiated and overruled in Cohens v. Virginia. Yet, after these repeated declarations of the opinion of the supreme court, so explicitly reiterated in the case of Osbom v. United States Bank, I should not have felt myself at liberty to adopt a dif- ferent construction of the article in question, if the action of the supreme court on this subject had stopped with the last mentioned case ; (5) for the controversy involves no right reserved to the states or secured to individual citizens. It is a question merely of the dis- tribution of power among the courts of the United States, and when the supreme court had so repeatedly expressed its opinion that that court, under the constitution, had exclusive original jurisdiction over the subject-matters enumerated in the clause now under con- sideration, it would hardly have been proper or decorous in the cir- cuit court to disregard those opinions, although they were expressed when the point in controversy was not directly before it. But the action of the supreme court did not stop with the cases above cited ; the point in dispute was brought directly before the court in United States v. Ortega, 11 Wheat. 467. That case came before the supreme court upon a certificate of division of the judges of the circuit court, and the points presented by the certificates were — 1. Whether it was a case affecting an ambassador or public minis- ter; and — 2. If it were such a case, was the act of 1789, giving original jurisdiction to the circuit court, constitutional or not? The court said it was not necessary to decide the second point, because they were of opinion that it was not a case affecting an ambassa- dor or public minister. It can hardly be supposed, that the supreme court would have refused to express an opinion on the second point, if they had regarded the question as settled by the previous decisions of that court. The manner in which they treated it, when thus di- rectly brought into discussion, shows that in their opinion, it was still an open one, and had not been concluded by anything said in the different opinions of the court to which I have before referred; and 168 CONSULAR CASES the reporter in a note to this ease expressly states that the point in question had not been decided by the supreme court. But in another and very late case the court have, in my judg- ment, distinctly aflfirmed the constitutionality of the act of 1789, on the very point in controversy. In the case of Davis v. Packard, 7 Peters 281, the question was brought (6) before the court by writ of error from the court of errors of New York, which court was supposed to have decided that a state court had jurisdiction in cases where a con- sul was concerned. It turned out afterwards, that the court had not so decided ; but the supreme court, when the case came before them, interpreted the record otherwise, and, acting upon that interpreta- tion, reviewed the judgment of the court of errors of New York. Judge Thompson, in delivering the judgment of the supreme court, says: "As an abstract question, it is difficult to understand, on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power of the United States extends to all cases affecting ambassadors, other public ministers and consuls; and the judiciary act of 1789, sect. 9, (1 Stat. 76) gives to the district courts of the United States, exclusively of the courts of several states, jurisdiction of all suits against consuls and vice-consuls, except for certain offenses mentioned in the act." This language used by the court, with the point directly before them, can only be understood as an affirmance of the constitutionality of the act of 1789 ; for the exclusion of the state courts is not put upon the ground, that they were impliedly excluded by the grant of original jurisdiction in such cases to the supreme court; but the decision is placed on the grant of power to the courts of the United States gen- orally, and on the act of 1789, which conferred the jurisdiction on the district courts, and excluded the state courts. No notice is taken, in that opinion, of the clause conferring original jurisdiction on the supreme court. The exclusion of the state courts is not derived from it, but from the act of 1789 ; so, of course, that act was deemed con- stitutional. This decision is in conformity with the contemporaneous con- struction of the constitution, given by the circuit court in the case of the United States v. Ravara, before referred to. And although the authority of that case was much doubted, after the opinions delivered in Marbury v. Madi- (7) son, Cohens v. Virginia, and Osborn v. United States Bank, and more especially on account of the high and just reputation of the eminent judge by whom those opinions were delivered, yet this vexed question ought, in my judgment, to be re- garded as now settled by the case of Davis v. Packard. It is worthy of remark, also, that the elementary writers, gen- 169 CONSULAR CASES erally, seem to have regarded the act of 1789 as constitutional, and to have relied on the case of the United States v. Ravara: vide 11 AMieat. 473. (note); Rawle on the const. 221, 222; Conkling 160, Sergeant 17, 18. Independently, however, of any judicial authority, the con- clusions of my own mind must have been very clear and free from doubt, before I should have felt myself justified in pronouncing an act of congress passed in 1789 a violation of the constitution. It was the first congress that met under the constitution, and in it were many men who had taken a prominent and leading part in framing and supporting that instrument, and who certainly well understood the meaning of the words they used. The fact that the law in ques- tion was passed by siich a body, is strong evidence that the words of the constitution were not intended to forbid its passage. Nor am I by any means satisfied that the words used require a different construction from that given to them by the act of 1789. There are no express words of exclusion in the clause which confers original jurisdiction, in the cases mentioned, upon the supreme court. Why should they be implied? They are clearly not implied in re- lation to the state courts, in the clause immediately preceding, which gives judicial power in certain cases to the courts of the United States; for there are some subjects there enumerated from which it never could have been designed to exclude altogether the state auth- orities. For example, the constitution of the United States is the supreme law in the several states, and the courts of the states are bound to respect and interpret it, and to declare any state law null and void which (8) violates its provisions. Again, the laws of con- gress, when passed in the exercise of its constitutional powers, are obligator}' upon the state courts, and must be construed by the courts, and obeyed by them, whenever they come in conflict with the laws of the state. It is true, that the decisions of the state courts must be subordinate to, and subject to the revision of, the supreme court of the United States, to whom the ultimate decision of such questions belongs; yet, the state courts are not, and cannot, from the nature of our institutions, be excluded from all jurisdiction in such matters, and the grant of power to the courts of the United States has never been held to exclude them. If the grant of jurisdiction to the courts of the United States, generally, is not, by implication, the exclusion of all othpr courts, in the cases enumerated in that grant of power, why should the grant of original jurisdiction to the supreme court in certain cases, in the very same section, and by the next succeeding clause, be held to imply such exclusion? The original jurisdiction conferred on the supreme court is not inconsistent with the exercise 170 CONSULAR CASES of original jurisdiction on the same subjects by the inferior courts of the United States, and there is no necessity, therefore, for implying an intention to exclude them. Indeed, if the grant of original jurisdiction, in the cases men- tioned, implied exclusion of jurisdiction on those subjects, the ex- clusion would seem most naturally to apply to the appellate juris- diction of the court itself, and to prohibit it from the exercise of the latter in the cases where the former was given. The subject-matter of this part of the section is the jurisdiction of the supreme court, and it is divided into appellate and original. The cases are enumer- ated in which it shall have original jurisdiction; and appellate is given to it in others. Now it might very well be supposed, that in thus classing the subjects upon which it should have original, and upon which it should have appellate jurisdiction, the framers of the constitution meant to limit its jurisdiction in the manner in which it is (9) there divided, and to exclude it from original jurisdiction where appellate was given, and to exclude it from appellate where original was given ; and this was supposed to be the construction given to it in the case of Marbury v. Madison, by the learned judge who de- livered the opinion. But when the subject was further discussed and considered in the case of Cohens v State of Virginia, it became manifest, that such a construction could not be sustained, without de- priving the supreme court of some of its most important and neces- sary powers ; powers which, from the whole frame of the instrument, it was evidently intended that the court should exercise; and which, although classed in its original jurisdiction, it could exercise only in an appellate form, when the question arose in a suit in a state court. The language used in Marbury v. Madison was therefore qualified and explained, and it was decided, that the grant of original jurisdiction, in the cases enumerated, to the supreme court, did not exclude from appellate jurisdiction over the same subjects. And this latter con- struction is now the established law of the country. If the arrange- ment and classification of the subjects of jurisdiction into appellate and original, as respects the supreme court, do not exclude that tribunal from appellate power in the cases where original jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of congress? The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in which the grant of jurisdic- tion over a certain subject-matter to one court, does not, of itself, im- ply that that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words of grant, and none that 171 CONSULAR CASES import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject-matter. Nor is there anything in the official character and func- (10) tions of a consul which should lead us to suppose , that the framers of the constitution mean to confine cases affecting such officer ex- clusively to the supreme court. A consul is not entitled, by the laws of nations, to the immunities and privileges of an ambassador or public minister. He is liable to civil suits, like any other individual, in the tribimals of the country in which he resides ; and may be punished in its courts for any offense he may commit against its laws; Wheat. International Law 181; 1 Kent's Com. 43, 45. He, usually, is a per- son engaged in commerce; and in this country, as well as others, it often happens, that the consular office is conferred by a foreign gov- ernment on one of our own citizens. It could hardly have been the intention of the statesmen who framed our constitution, to require that one of our citizens who had a petty claim of even less than five dollars against another citizen, who had been clothed by some foreign government with the consular office, should be compelled to go into the supreme court to have a jury summoned in order to enable him to recover it; nor could it have been intended, that the time of that court, with all its high duties to perform, should be taken up with the trial of every petty offence that might be committed by a consul, in any part of the United States ; that consul too, being often one of our own citizens. There is no reason, either of policy of con- venience, for introducing such a provision in the constitution; and we cannot, with any probability, impute such a design to the great men who, with so much wisdom and foresight, framed the constitu- tion of the United States; they have used no words expressly pro- hibiting congress from giving original jurisdiction in cases affecting con.suls, to the inferior judicial tribunals of the United States; and in the absence of everj' express prohibition, I see no sufficient groimds to justify this court in implying it, and pronouncing, merely upon such implication, that the act of 1789 is unconstitutional and void. (11) The judgment of the district court in this case must, therefore, be reversed, and the motion to quash the writ which issued from that court overruled. McMahon, for plaintiff in error. Johnson and Glenn, for defendant in error. GLASS v. THE SLOOP BETSEY, (1794, U. S.) 1 Whart. 796; 3 Dall. 6. Jay, Supreme Court. (Extract) And the said supreme court being further of opiii- 172 CONSULAR CASES ion, that no foreign power can of right institute, or erect, any court of judicature of any kind, within the jurisdiction of the United States, but such only as may be warranted by, and be in pursuance of treaties, it is therefore decreed and adjudged that the admiralty jurisdiction, which has been exercised in the United States by the consuls of France, not being so warranted is not of right. GODDABD V. LUBY, (1795, U. S.— France) 1 Bay 435. Orimke and Waties, Court of Common Pleas of South Carolina. Case for slanderous words. On a motion made, a non-suit was ordered by the court, as the parties, plaintiff and defendant, were French citizens. By the 12th article of the convention between France and Amer- ica, for defining the functions of consuls, etc. it is declared, "that all disputes between the subjects of his most Christian Majesty in the United States, or between the citizens of the United States within the dominions of the most Christian King, etc. shall be determined by their respective consuls and vice-consuls, either by reference to arbi- trators, or by a summary judgment without costs." Under the con- struction of this article, the court (present, GRIMKE and WATIES, Justices) referred the parties to the French consul for redress. GOLDSBOROTJGH v. UNITED STATES, (1889, U. S.) 25 Ct. CI. 72. Davis, Court of Claims of the United States. [Where consul seeks to recover fees for certifying invoices of non-dutiable goods, there must be certainty in number of such in- voices else claim irrecoverable. A consul in China is entitled to fees collected for shipping and discharging seamen on foreign built vessel sailing under American flag.— Ed.] GOIUBCHICK, THE, (1840, Great Britain— Russia) 1, Eob. W. 143. Dr. Lushington, High Court of Admiralty. Judgment — Dr. Lushington. The question which has been raised in this case, is the first ques- tion of the kind that has come before the court, since I have been in this chair. I have, therefore, felt anxious to examine carefully the 173 CONSULAR CASES principle upon which this court exercises jurisdiction, with respect to seamen serving on board foreign vessels. In support of the protest, it has been urged, that the court has no jurisdiction, save by con- sent of the ambassador, consul, or minister of the country to which the vessel belongs. This notion, I am aware, has prevailed in these courts with re- (147) spect to cases of this kind, but I must confess, that I have always felt considerable diflficulty upon the point ; and for this reason, that if the court does not possess an inherent jurisdiction over the subject matter, it is not possible that the consent of an in- dividual could confer any such jurisdiction. I think, therefore, that the proper mode of considering the question is this: the court must possess original jurisdiction over the subject matter, or it can have none at all ; for the consent of a foreign consul or minister never could confer a jurisdiction upon a British court of judicature. Now upon general principle, I apprehend that this court, admin- istering, as it does, a part of the maritime law of the world, would have a right to interpose in cases of the present description. Can it then be consistent with the principles of justice, that the exercise of this right should depend entirely upon the consent of a foreign min- ister or consul, who should be authorized to prohibit the court al- together, or to induce it from exercising its jurisdiction ? How would the question stand in other courts? In other courts of this country, I have no doubt, that the mariners might have instituted an action in personam against the master without reference to any consent at all. Why, then, Bhould not the proceedings be competent on their part in this court against the ship? For by the general maritime law, the ship is the primary security for their wages. Is it just or proper, that the consent of the foreign representative should be neces- sarj' to put this court in motion, and should not be necessary in a court of common law? How is it possible there can be any such difference between them? Upon general principle, then, I am inclined to (148) hold, that this court docs possess a competent jurisdiction to adjudicate in these cases ; at the same time, the exercise of this jurisdiction is discretion- ary with the court, and if the consent of the representative of the government to which the vessel belongs is withheld, upon reasonable grounds being shown, the court might decline to exercise its authority. Indeed, circumstances might occur upon the face of the case itself, in which this difficulty might arise; that the matter in dispute was so connected with the municipal law of a foreign country, that this court would be incompetent to render impartial justice; in such cases, imdoubtedly, the court would decline to adjudicate. Having thus stated my opinion, that upon general principle, this court has an 174 CONSULAR CASES authority in cases of this kind between foreigners, and that the prop- riety of exercising that authority must depend upon the circum- stances of each particular case, I will now shortly advert to the cases which have been reported. These are but few, and I cannot find that, in any of them, the point in question has ever been directly decided. In the case of the Courtney, which has been referred to by the counsel for the owners; it is true, that Lord Stowell, to whose high authority I should always be disposed to pay the greatest respect and attention, expressed himself in terms implying an opinion, that the court of ad- miralty could not entertain a suit of this kind without the consent of the representative of the foreign nation to which the vessel belonged ; but it is to be observed, that the decision in that case is not a decision in point, insomuch that the mariners in that case sued for a penalty beyond their wages under an act of the American congress; the dif- ficulty, therefore, which (149) Lord Stowell had to contend with in that case was, that he could not enforce the municipal law of the coun- try upon which a part of the mariners' claim was founded. The next case is the case of the Madonna d'Idra, reported in the first volume of Dodson; with respect to which it is also to be re- marked, that the case reported does not bear very much upon the case in question. The vessel, it appears, had been sold in a cause of bot- tomry; a claim upon the proceeds was preferred by certain Greek mariners, and the question was, whether they were entitled to priority of payment. A further distinction is also to be noticed with respect to that case, namely, that the captain was bound by the law of Turkey to take his men back again, or to find them conveyance in other ves- sels ; the mariners, therefore, had a lien upon the proceeds of the ship for their subsistence. The next case is the case of the Wilhelm Frederick, 1st Haggard, but in this case, the question was only incidentally raised; the court held, that the ship at the time of arrest was a British vessel, the for- eign owner having directed that she should be given up to satisfy the demands of British creditors. The decision in that case, therefore, was only to this extent, that the surrender of the vessel by the foreign owner was sufficient to entitle the seamen to proceed in this court to establish their claim. The last case to which I shall advert, is the case of the Adolph, 3d Haggard, p. 249 ; the proceedings in that case were in poenam against a Hamburg ship in a cause of bottomry, and an application was made to the court by one of the bondholders, that he might be allowed to pay the wages of the crew, and have a priority over the other bondholders for the (160) amount of the wages so paid out of the proceeds of the ship. Sir John Nicholl, before whom the motion was made, declined to make any order, upon the ground 175 CONSULAR CASES that there was no one to consent. This was the extent of the learned judge's decision in the case of the Adolph, and although it bears more closely than the other cases to which I have adverted, upon the poinf to be decided in the present instance, it cannot, I think, be regarded as a positive decision upon the point in question. The matter resting thus with respect to the reported cases, I shall now address my consideration to one or two of the circumstances peculiar to this case. In the course of the argument, a discussion has been raised by the counsel in the cause, whether the seamen pro- moting the proceedings are to be considered as Spanish subjects, or whether for the purposes of this suit they are to be regarded as subjects of the Russian government. Now, upon this point, I entertain no doubt whatever; it is, I conceive, a settled doctrine of law, that when a subject of one country enters into the service of a ship belong- ing to the subjects of another country, he must be considered pro hoc vice to be a subject of that country to which the vessel belongs. As regards the promoters of the present proceedings, therefore, I have no hesitation in saying, that for the purposes of the present claim, they are to be considered as Russian subjects, and this upon general principle, without reference to the particular ordinance of the Spanish marine, which has been pleaded in the rejoinder that has been given in. Another point that has been pressed by the counsel in arguing the case, is the alleged discharge of the mariners in this country; and it was urged with considerable force (151) in support of the mariners' claim, that it would be an extreme hardship upon the seamen, if the court should allow them to be turned adrift in this country, and the vessel to proceed to any part of the world to which the o'wuers might think fit to send her; thereby compelling the seamen to seek their remedy in a foreign tribunal, to which they might have no means of access from want of resources. Now this circumstance, if duly estab- lished, would undoubtedly be deserving of some consideration from the courts, at the same time, it must be observed, that the alleged hard- ship upon the mariners, if the court should decline to entertain their claim, could not of itself confer a jurisdiction upon the court; if the court were possessed of an original jurisdiction, it might furnish a strong inducement for the exercise of that jurisdiction in the present instance ; but it would not give a jurisdiction which the court did not previously possess. It is also to be observed, that the fact itself of the asserted discharge of the seamen is directly put in issue in the pleadings. In deciding the question that has been raised, therefore, I cannot rely upon the fact whether they were discharged or not. The last circum.stance in the case to which I must advert, is of a very pe- culiar nature ; namely, that the court is entirely uninstructed as to the 176 CONSULAR CASES original intention of the owners of this vessel respecting the term- ination of the voyage; and also respecting the nature of the hiring, and the terms upon which the mariners were engaged. These facts must have been within the entire knowledge of the master, and should have been explained in the protest. In the total absence of any in- formation upon these points, the court is placed in some difficulty, for if it is to enter into a considera-(152)tion of the case, it is undoubt- edly a matter of no small importance, that the court should know whether the vessel was destined to a Russian port, or to the port of any other country. Under the circumstances of the case, then, the course which I shall adopt is this ; I shall direct the registrar to write a letter to the Russian consul, stating that the suit has been com- menced, and requesting that he will make such a representation to the court as he shall think fit upon the subject. If he consents to the proceedings, there will be no further difficulty; if he refuses to con- sent, or declines to interfere altogether, I shall then have to determine upon the course to be pursued by the court under the circumstances. Upon the 21st of May, a letter was addressed to the registrar of the court, by the Russian consul, to the following effect: "Russian Consulate General, 21st May, 1840. ' ' Sir, I have the honour to acknowledge the receipt of your letter of the 16th inst,, and in reply, to acquaint you, that having been informed by the owner of the Golubchick, who is a Russian subject, that the said vessel is no longer to be navigated under the Russian flag, but peremptorily to be sold here ; I shall not in my official char- acter as consul general of his imperial majesty of all the Russias, in« terfere in the cause, &c., &c. "I beg, however, that this letter may not be construed on my part into an assent or a dissent from the proceedings which have been instituted against the vessel, without my sanction having been pre- (153) viously asked or obtained, and at the same time to inform you, that I consider much inconvenience would arise, if vessels trading to this country, Russian owned, and navigated under the Russian flag, were liable to be seized by process from the admiralty court in this country for wages due to the seamen under contracts which should be regulated by the Russian, and not by the British code of maritime laws. I have," &c., &c. Upon the 2d session of Trinity term, 4th of June, 1840, the court finally disposed of the question, with the following observations: Per Curiam. Ill CONSULAR CASES Since the question was argued upon a former court day, I have had an opportimity of considering the case referred to in the Amer- ican reports, viz., the case of the Jerusalem. The decision in that case was pronounced by a judge of the high- est eminence, Mr. Justice Storie ; and the principles laid down in that decision most strongly confirm the previous impression of my own mind, that the court has a jurisdiction in all cases of wages as ques- tions of general maritime law; although in some cases circumstances may arise to induce the court to decline the exercise of that jurisdic- tion. In the present case I am relieved from all doubt and difficulty as to the course which I shall adopt, by the letter which has been ad- dressed to the registrar of this court by the Russian consul. That letter states, that the vessel proceeded against is no longer to be nav- igated under the Russian flag, but to be peremptorily sold here. The voyage must, there- (154) fore, be considered as having terminated in this country, and the ease is consequently one in which the court is bound to exercise its jurisdiction. I must, therefore, overrule the protest, and allow the cause to pro- ceed ; and I wish it to be understood, that in all future cases of this kind, it must be held to be indispensable that notice of the intended proceedings should be given in the first instance to the representative of the foreign government. In so directing, I do not mean to intimate that the court would feel imperatively bound to act in accordance with the views that might be entertained by such representative; but I consider it is expedient that such intimation should be given in order that, if any objection should be taken against the prosecution of the proceedings in this court, the court being informed of the grounds upon which such objection is taken, might be enabled to form its own judgment of the sufficiency of such objection, and adopt such a course as may be most conducive to the furtherance of justice in the cause. With respect to the question of costs, I shall give no costs ; the question which has been raised is a question primae impressionis, in which I have in some measure already exceeded what any of my predecessors have done. GOULD V. STAPLES, (1881, U. S.) 9 Fed. Rep. 159. Fox, Circuit Court. (160) (Extract) By section 1695 the president is authorized to appoint consular agents in such numbers and under such regulations as he may deem proper. By paragraph 17, consular regulations of 1881, consular agents are described as — 178 CONSULAR CASES "Acting only at the representativeB of their principals, and are subject and subordinate to them, and are paid only by the fees collected by them, retaining the whole or such portion as may be agreed upon between them and their prin- cipals, the residue being received by the principal, under the sanction of the president. ' ' From these provisions of the statutes and established regulations, it is manifest that the consular agent of the United States at Toulon was in law a representative of the plaintiff, and that through him the plaintiff was in fact the consul for the port of Toulon, discharging all the duties of a consul at that port as effectually as if there present attending to them in person ; and if the Charter Oak had arrived at Toulon her master would have been bound to have deposited his papers at the consulate in that city with the agent of the plaintiff, and on failure so to do would have been liable to the plaintiff for the pen- alty. GRAHAM V. HOSKINS, (1845, U. S.) 01c. 224; Fed. Cases 5,669. Betts, District Court. [Seamen's wages. Seems to involve no consular question. — Ed.] GRAHAM V. STUCKEN, (1857, U. S.) 4 Blatchf. 50; Fed. Cases 5,677. Nelson, Circuit Court. (51) NELSON, J. (Extract) The first question presented on this application is, whether the court is without jurisdiction of the case, for the reason that the defendant Stucken is a foreign consul; for then, of course, no order for the writ sought to be obtained can be granted. The question has not been decided by any judicial author- ity, and was, it seems, purposely waived by the supreme court in the case of The United States v. Ortega, (11 Wheat. 467) (See also note to that case, 469 to 475; 1 Kent's Comm,, 315; Curtis' Comm., sec. 108.) But, notwithstanding this apparent doubt, it is certain that the fram- ers of the judiciary act of 1789 understood the consitution as admit- ting jurisdiction over foreign consuls to be vested in other federal courts besides the supreme court. The argument against the jurisdic- tion of this court is, that the constitution has vested exclusive juris- diction in the case in the supreme court of the United States, and that this suit should have been commenced in that court. The last clause of section 2 of article 3 of the constitution declares, that ' * in all cases affecting ambassadors, other public ministers and consuls, and those 179 CONSULAR CASES in which a state shall be a party, the supreme court shall have original jurisdiction." Congress, in distributing and regulating this grant of jurisdiction, provided, in section 13 of the judiciary act, that the su- premo court should have exclusive jurisdiction in all cases against am- bassadors, &c., and original, but not exclusive jurisdiction in cases "in which a consul or vice-consul shall be a party," thus clearly re- jecting the idea that the grant in the constitution in respect to con- suls was exclusively to the supreme court. Again, the grant of original jurisdiction to the supreme court is the same in the cases (mentioned in the previous clause of the consti- tution) "in which a state shall be a party," as in the case of a con- sul. Those cases are controversies — 1. Between two or more states; 2. Between a state and citizens of another state; 3. Between a state and foreign states ; and 4. Between a state and citizens or subjects of a foreign state, that is, aliens. Now, if the grant of original jurisdic- tion be exclusive in the supreme court in the case of a consul, it is equally exclusive in the four cases above enumerated; for the grant is in the same clause and on the same terms. And yet, in the 13th section of the judiciary act, already referred to, it is provided that the supreme court shall have exclusive jurisdiction, &c., where a state is a party, &c., except between a state and citizens of other states, or aliens, in which latter case it shall have original, but not exclusive jurisdiction. According to the argument, (53) the whole of this ex- ception would be imconstitutional, as the cases mentioned should have been vested exclusively in the supreme court. And, again, — what is still more explicit in respect to the practi- cal construction of the framers of the judiciary act, many of whom were eminent members of the Convention that formed the constitution — the 9tli section provides that the district courts of the United States shall have jurisdiction, exclusive of the courts of the states, of all suits against consuls or vice-consuls, &g. In the face of all this legislative interpretation by the fathers of the constitution, and all this acquiescence therein since 1789, I can- not say that the jurisdiction in this case is exclusively in the supreme court, but am satisfied that it may be conferred upon the inferior tribunals of the federal judiciary. Being pressed for time, I have stated simply the grounds of this conclusion, without giving more at large the rea.sons in support of it. It has been also objected that, admitting that the jurisdiction is not exclusive in the supreme court, still it has not been vested in the circuit courts of the United States. The 11th section of the judiciary act provide.'!, that the circuit courts shall have original cognizance, con- currently with the state courts, of suits between a citizen of the state 180 CONSULAR CASES where the suit is brought and a citizen of another state. The case be- fore me falls directly within this provision. It is said, however, that the jurisdiction cannot be concurrent with the state court, as that court has no jurisdiction of the case, it having been excluded by force of the 9th section, already referred to. But the answer to this sug- gestion is, that the phraseology is designed simply to save the juris- diction of the state court where it exists, in other words, to exclude a conclusion. It has been said, also, that if the jurisdiction of the case is not in the supreme court, and may be vested in inferior courts, it has beisn expressly vested in the district court, which is true. But there is nothing in the provision conferring (54) it upon that court, that ex- cludes the jurisdiction of the circuit court. I am satisfied, therefore, that this court has jurisdiction to hear and decide this motion, and also the case out of which it has arisen. GRAVES V. THE W. F. BABCOCK, (1897, U. S.) 79 Fed. Eep. 92. Brown, District Court. (93) (Extract) There is no proper or sufficient proof of an inten- tion by any of the men to desert. The master's testimony on this point is all hearsay, depending on reports of the mate, who left the ship and was not examined. The mate, he says, reported the men ab- sent and their clothes missing. The weight of evidence certainly shows that the report in the latter respect was mistaken; the men's clothes were in bags in the forecastle all the time (except a couple of articles which one of the men had taken ashore to sell), and were there when the men returned to the ship February 26th. The evidence does not satisfy me that there was any proper in- quiry or finding by any one as to the fact whether the men, or any one of them, had deserted. Section 4600 of the revised statutes makes it the duty of consular officers **to reclaim deserters," and to employ the local authorities to that end. No express authority is given to lodge deserters in foreign prisons. But that section requires that "in all cases where deserters are apprehended, the consular officer shall inquire into the facts." In the master's deposition appears a copy of a letter stating as follows : ' ' Shortly after the arrival of the ship W. F. Babcock several of the crew de- serted. At the request of this oflSce they were arrested and lodged in jail, where they complained to me of ill treatment at the hands of the mate. I fum- moned the master, and mate, also the men to appear before me. After a full 181 CONSULAR CASES inveitigation found the charges to be without foundation. Their jail feea, re- ward! offered for them, etc., have been looked over by me and found to be cor- rect ai per voucher!. " (Signed) Ellis Mills, General Consul." This letter was objected to, and it is not legal or competent evi- dence as to the matters of fact stated in it. I have deferred the de- cision of the cause to permit evidence of any docket or record of in- quiry as to the alleged desertion to be offered ; instead of that a further certificate is offered under the seal of the consul, dated January 19, 1897, stating that in the month of February, 1896, complaints were successively made to him by the master that the above-named libelants had deserted, — "Whereupon at the request of the master I issued requests to the marshal of thi! government for the arrest and detention of these men, and they were after- wards brought before me, and it then and there having been made to appear to my satisfaction that the aforesaid complaints were true ♦ ♦ * and that the seamen had deserted said vessel, and absented themselves without leave, whereupon at the request of the said master the said seamen were remanded to the jail at Honolulu to remain there until the said vessel should be ready to proceed on her voyage or till the master should require their discharge, and then to be delivered to the said master, he paying all the costs of said commitment and de- ducting the same out of the wages due to said seamen. And I further certify that the reason for my action was because I was satisfied that unless they were bo detained they would again desert. "Ellis MiUs, Consul General." This paper has not the appearance of having been prepared from any docket, record, or notes remaining in the consul's office. It does not purport to be a copy of any such record or notes ; no dates, other than the month are given, and there is no direct statement that the consular officer made any inquiry into the facts. The latter part seems intended to follow the provisions of section 4598, which does not apply to proceedings before consular officers, but to proceedings before jus- tices of the peace within the United States, In the case of The Coriolanus, Crabbe, 239, Fed. Cas. No. 7,380, Judge Hopkinson said: ' ' I never suffer these certificates to be read ; they are infinitely weaker than ex -parte depositions." To make proceedings before the consul evidence, there must be either a duly-proved copy of his record, or else his deposition, as in the case of other witnesses. These papers are neither, and must, therefore, be disallowed as evidence. GRIFFIN V. DOMINGUEZ, (1853, U. S.) 2 Duer, New York City Superior Court 656. Duer, Superior Court, New York. 182 CONSULAR CASES [There is no right to examine in a state court a foreign consul as a judgment debtor and he cannot be attached by reason of any refusal to obey an order for examination. "The exemption of a consul from suit in state courts is not his personal privilege — it belongs exclusively to the United States; and cannot therefore be waived by any act or default of the consul him- self. "~Ed.] GEIN, IN RE, (1901, U. S.— Russia) 112 Fed. Eep. 790. Morrow, Circuit Court. (Extract) That the proceedings should be initiated and carried on by the demanding government is undoubted, but that evidence of spe- cial authority from such government to the party making the com- plaint is necessary is a contention that cannot be upheld. The com- plaint herein contains the positive statement that it is made by the Russian consul stationed at the city of San Francisco. It recites that criminal proceedings upon the charge alleged have been instituted against the said Grin, that a mandate has been issued from the state department of this government for his surrender upon proper pro- ceedings, and prays that the necessary proceedings may be had as directed in said mandate. The consular title is appended to the sig- nature of the complaining party, and no presumption can arise from any portion of the complaint that it was made other than as and for the Russian government. The cases of In re Herres (C, C.) 33 Fed. Rep. 165, and In re Adutt. (C. C.) 55 Fed. 376, rightly hold such a showing in a complaint to be amply sufficient for the purposes of the document. GRIH V. SHINE, (1902, U. S.) 187 U. S. 181. Brown, Supreme Court. (Extract) No evidence was required that the Russian consul had authority to make the complaint. All that is required by sec. 5270 is that a complaint shall be made under oath. It may be made by any person acting under the authority of the foreign government having knowledge of the facts, or, in the absence of such person, by the official representative of the foreign government based upon de- positions in his possession, although under the first article of the treaty the accused can only be surrendered upon a "requisition" of the for- eign government, and by art. VI such I'equisition must be made by 183 CONSULAR CASES the "diplomatic agent of the demanding government," and in case of his absence from the seat of government, by the "superior consular officer. ' ' HAGGITT V. INIFF, (1854, Great Britain) 5 De G. M. & G. 911; 24 L. J., Ch. 120; 1 Jur. (N. S.) 49. Lord Justices, Chancery. AflBdavits may be still sworn before notaries public in foreign countriei, (hay- ing authority there to administer oaths) according to the old practice, which i* not altered in this respect by 15 & 16 Vict. c. 86, § 22. Mr. Nalder applied to their Lordships for a direction that the clerk of records and writs might place on the file an affidavit, sworn before Mr. Allen, a notary public at Geneva, in the county of Ontario, in the state of New York, in America. The fact of Mr. Allen being a notary public, and that credit ought to be given to his official acts, was certified by the British consul at New York, under the official seal. The clerk of records and writs doubted whether the jurat was sufficient. There was an affidavit of the solicitor in the cause, stating that he had applied to General Campbell, the American consul in England, who informed him that notaries public in the United States were authorized by law to administer oaths in any law proceedings in that country. The application had been made, in the first instance, to Vice- Chancellor Kindersley, who, on being referred to the 22d section of the Chancery Amendment Act (15 & 16 Vict. c. 86), considered that the case was not within that section. THEIR LORDSHIPS (after consulting Mr. Walker, the (911) registrar), said that the affidavit would have been sufficient before the passing of the new act, and that, as there appeared to be nothing in the act to exclude it, it ought, in their lordship 's opinion, to be placed on the file. HALL V. YOUNG, (1825, U. S.) 3 Pick. 80. Parker, Massachusetts Supreme Court. PARKER C. J. delivered the opinion of the court to the following effect. If it had been shown upon a plea to the jurisdiction in the original action, that Mr. Manners was a consul, a judgment against him would have been erroneous, and the bail would be discharged. But that fact does not appear on the record in that action, and the agreement to be defaulted was a waiver of the want of jurisdiction. It is said that all courts are to take notice of a person's being a con- 184 CONSULAR CASES sul, on account of his exequatur; but he may be a consul one day and cease to be such the next, and yet his exequatur may not be taken from him. When therefore he is sued, if he would avail himself of his privilege, he must make it appear that he was a consul, unless the other party shows it ; as by calling him consul in the original writ. Judgment affirmed. HARBISON V. VOSE, (1849, U. S.) 9 How. 372. Woodbury, Supreme Court. (Extract) (381) The proviso of the act seems to indicate that the papers are delivered to the consul chiefly as security for two pur- poses; viz., the payment of extra wages to seamen discharged, and the taking on board destitute seamen when bound home; and hence, if the master does not perform what is thus required, he is not en- titled to his papers again, even after an entry and clearance. • • • * • •*•• (382) It is conceded that a consul is the chief representative and agent of his country in most foreign ports, and as such to be resorted to by his countrymen. * * ♦ Those functions are principally to watch over our trade, — actual exports and imports; to exercise juris- diction in some respects over American vessels and seamen abroad; sometimes of a judicial character (3 Taunt. 162), when they stop and come ashore, or to transmit information home in relation to them. To be sure, he has a few other duties to perform. But most of them are disconnected with this subject ; — as, to take care of American property, either wrecked or belonging to deceased persons ; to exercise at times even diplomatic fimctions ; to aid his countrymen in scientific researches ; to transmit periodical advices on every thing beneficial to trade or the arts, and, in all emergencies among strangers, to act as the friend and agent of commercial visitors from his own country. Vattel, Law of Nations, Consuls ; Warden 's Consular Establishments ; 2 EUiot's Am. Dep. Code, 454; 7 Pet. 276; Bee's Adm. 209; 1 Statutes at Large, 254, and note; 10 Wheat. 66; 1 Mason 14; 1 McCulloch's Diet., Consul, 465-467; 2 Beawe's Lex Mercatoria 42. The first class of duties may have furnished some reasons for requiring that the papers of vessels be lodged with the consul after an arrival to stay and transact business, and that they remain with the consul till the vessel's clearance. All of that class look to an arrival for purposes of business — to an entry and clearance, and to a stay there so long as to require some of the acts connected with it, and to need or permit the interference of the agent of their country 185 CONSULAK CASES in some of his appropriate (383) functions, and especially to enable him to report imderstandingly that her trade, or her imports and ex- ports, are on American account, and are of a certain value and char- acter. HATHAWAY v. JONES, (1863, U. S.) 2 Sprague 56; Fed. Ca§e8 6,212. Sprague, District Court. (Extract) If a man chooses to take money in a foreign port, at the price in that port, he can do so ; but if he does not agree to it, he should not be compelled to take money when he does not wish for it, and at consular rates, which the evidence shows are, for some reason or other, almost always a good deal below^ what would seem to be th« fair calculation of the market rate of the place, or the estimated New Bedford price, less freight home and insurance. By settling before the consul, a commission of two and a half per cent, was incurred. There is no reason for this. The discharge must be made before the consul, but the payment need not be before him. It may be with or without witnesses; and if before witnesses, no witness charges a commission for seeing money paid, and that is all the consul did. HAVANA. THE, (1858, U. S.— Great Britain) 1 Sprague 402; Fed, Cases 6,226. Sprague, District Court. [Court will exercise jurisdiction in certain circumstances "It will do so for the purposes of justice, and the more readily, if no objec- tion be made by the consul of the nation to which the vessel belonged." • * * "As these (items), or some of them, may depend upon British law and usage, I shall invoke the aid of the British consul, by appointing him an assessor to ascertain what amount thereof, if any, should be allowed." — Ed.] HAYES V. J. J. WICKWIRE, (1870, U. S.) 7 Phila. 594; Fed. Cases 6,262. Cadvalader, District Court. CADWALADER, J. — This case arose upon a libel for wages and damages, allowed by the court upon the certificate of the British con- sul being filed, that there was, in his belief, sufficient cause for such process. The facts wore, briefly stated, as follows: Libellant was a British seaman, shipped in Great Britain for the round voyage to Philadelphia and back to a port in Europe. After the ship's cargo was discharged at this port, the seaman went ashore one evening, was 186 CONSULAR CASES arrested, by the local authorities for an alleged breach of the peace, etc., while in the city, and locked np for four days. Upon being dis- charged from prison, he immediately returned to the barque, with a certificate from the prison-keeper of the cause of his detention. The master, Murray, had meanwhile, at the expiration of forty-eight hours' absence from the barque, duly entered Hayes upon his log- book as a deserter — upon a charge of total desertion; and, when he reported himself upon the barque again, with the cause of his deten- tion, the master declined to receive him on board ; to recognize him as one of his seaman ; to pay him his wages, or to give him his clothing. The British consul was next appealed to ; and, after an informal hearing of the master and mariner, at a time suggested by the mas- ter, decided that it was not a case of total desertion ; and instructed the master that he should allow the mariner to return to his duty on the barque. This the master again refused to do. The mariner then took boarding at a seamen's boarding house and libelled the barque. Mr. Mitcheson, for libellant, contended that the libellant, having been wrongfully discharged before the termination of the voyage, and hav- ing been prevented from re-shipping, through the master's detaining his pay and clothing, was entitled to his wages until re-shipped; to his expenses for boarding whilst on shore ; and to damages. Mr. Coulston, for defendant, contended that libellant should only be allowed wages up to the time he left the vessel; — less the expense and increased wages incident to shipping another seaman in his place. The court held, that the consul was right : and that the course of the master having been arbitrary and despotic in the detention of the seaman's clothing, etc., libellant was entitled to wages up to the time of decree ; expense of boarding for twenty days, with damages for de- tention of his clothing, and for the clothing if not returned. Decree accordingly. HEATHFIELD v. CHILTON, (1767, Great Britain) 4 Burr. 2,016. Lord Mansfield, King's Bench. (Extract) The law of the nations does not take in consuls, or agents of commerce ; though received as such, by the courts to which they are employed. This was determined in Barbuit's case in chan- cery, which was solemnly argued before and determined by Lord Tal- bot, on considering and well-weighing Barbeyrac, Binkershoek, Gro- tius, Wincquefort, and all the foreign authorities; (for there is lit- tle said by our own writers, on this subject.) In that case several curious questions were debated. 187 CONSULAR CASES HERMAN V. HERMAN, (1825, U. S.— France) 4 Wash. C. C. 555; Fed. Cases 6,407. Washington, Circuit Court. Under an agreement of the solicitors, that an answer to be given in France may be taken and sworn to before any person authorized to administer oaths by the laws of France; the agreement is not complied with if the answer be swom to before the American consul. The defendant resided in France, and the solicitor for the plain- tiff consented that his answer might be taken and swom to before a notary public, or other person authorized to administer an oath by the laws of France. The answer was taken by the American consul, and the question now was, whether it was properly taken and swom to within the terms of the agreement. Washington, J. 1 Denisart, title Consuls, p. 519, has been cited to prove that, by the French law, consuls are authorized to administer oaths. But it is quite obvious that the author, in the place referred to. is speaking of the power and duties of French consuls, residing in foreign countries; and not of foreign consuls residing in France. It was contended, for the defendant, that the act of congress con- cerning consuls gives them a power to administer oaths. "We think that it is not generally given by this act, but that it is confined to par- ticular cases of a maritime and commercial character. But if the power were general, it would not remove the difficulty, the agreement being, that the answer should be taken by some person authorized to administer oaths by the law of France. But for this agreement, it must have been taken under a dedimus potestatem. The answer was not allowed, Rawle, for plaintiff. Duponceau, for defendant. HERRES, IN RE, (1887, U. S.— Canada) 33 Fed. Eep. 165. Brewer, Circuit Court. [Authentication of extradition proceedings by U. S. vice-consul in Canada. "In other words, the vice-consul is not a deputy, but an acting consul." — Ed.] HERZOGIN MARIE, THE, (1861, Great Britain) 1 Lush. 292; r, L. T. N. 8. 88. Dr. Lushington, High Court of Admiralty. (Extract) Suits by foreign seamen were not formerly encouraged 188 CONSULAR CASES in this court; they are now allowed upon a principle of comity, and with a view to prevent injustice to seamen. The jurisdiction of the court, however, is discretionary only, and the court requires as a con- dition that previous notice should be given to the consul or repre- sentative of the foreign state. Foreigners here are bound to some ex- tent by the acts of their own government, and in shipping matters by the act of their consul. If the representative of the foreign state expresses his dissent to the suit, this court, though not bound to do so, will incline to hold its hand and remit the foreign master to remedy under the laws of his own country. HEYNSOHN v. MERRIMAN, (1880, U. S.) 1 Fed. Eep. 728. Choate, District Courrt. [Statute regarding payment of wages for three months does not apply in case of sick sailor left without his consent. — Ed.] HILL V. THE SACHEM, (1894, U. S.) 59 Fed. Eep. 790. Brown, District Court. BROWN, District Judge. The evidence of incompetency of the libellant as cook, is not, to my mind, satisfactory. It is certain that after the arrival of the ship at Hong Kong, the captain was determined to get rid of the libellant as cook; and it is equally certain that the consul, before whom both went, endeavored to favor the captain's wishes, while he at the same time refused to afford the libellant any opportunity to prove his capacity or fitness for the place. The cap- tain made no charges against him in the log until after the seamen had been sent ashore. The alternative was forced upon him, either to go back on board the ship and be disrated, or else to be discharged at Hong Kong; and that, without any hearing on the merits. This was an injustice to the libellant, and apparently an abuse by the con- sul of his position and influence. Where a hearing has been had on the merits, on the demand of the master, or the seaman, and a proper record preserved of the con- sul's decision and judgment, discharging the seaman, it is ordinarily entitled to full credence, notwithstanding the contradictions made by the seaman afterwards, such as I have not unfrequently had in pre- vious cases. In the present case, there was no hearing, no judgment, and no record, so far as the testimony shows. The libellant was paid $200, his wages up to the moment of discharge, which he received under protest. Such a forced discharge, with no hearing on the 189 CONSULAR CASES merits, at a distant place, and with no pay beyond the day of dis- charge, is inhumane and opposed to the policy and the statutes of this countn', (Rev. St. § 4580;) and it is no defense that it was abetted, so far as appears, by the irregular action of the consular office. The libellant was unable to obtain employment to return from Hong Kong, and took passage for San Francisco at an expense of $196, and thence to New York, at an expense of $91.50. To this I add one month's wages, $40, all of which, with interest, amounts to $347.15, for which a decree may be entered, with costs. HINDE, SUCCESSION OF. Hennen'i La. Dig. Ed, 1861, p. 582. [This case cited in 5 Moore 114, seems to contain nothing relative to consuls. — Ed,] HINDSGAUL v. THE LYMAN D. FOSTER, (1898, U. S.) 85 Fed, Eep, 987. Hanford, District Court. [In this case mate from American ship assaulted captain in for- eign port — was sentenced to imprisonment and captain paid consul wages. Consul paid expenses of detention giving difference to mate. If there was an misapplication, the consul and not the ship was liable,— Ed,] HITZ, EX PARTE, (1884) 111 U. S. 766. [Seems to involve no points affecting consul. — Ed.] HOLLANDER v. BAIZ, (1890, U. S,) 41 Fed. Eep. 732, Brown, District Court, [See also in re Baiz. Se«ms to contain nothing but what is found in re Baiz. — Ed.] HOPE, THE, (1813, Great Britain) 1 Dod. 226. Sir William Scott, High Court of Admiralty. [Consuls have no authority to grant enemy's ships exemption from seizure — In this case the belligerent consul seems to have remained in enemy's territory. — Ed.] 190 CONSULAR CASES HUTCHINSON, EX PARTE, (1848, Great Britain) 17 L. J. N. S. C. p. 111. Per Curiam, Court of Common Pleas. (Extract) A special commission had been issued to three mer- chants at Maderia, or any two of them, to take the acknowledgment of a married woman, under 3 & 4 "Will. 4. c. 74. s. 83, which was cer- tified to have been done at Maderia. The jurat to the certificate was in the following form : — "Sworn in the island of Maderia, on the 27th of November, In the year of our Lord 1847. Before me, (Signed) ''George Stoddart, "Her Britannic majesty's consul, and authorized by the laws of the island of Madiera to administer oaths in the island of Madiera." On the same parchment was added the following certificate : — **I, Servulo Nicolao Sowzao Drommond, notary public, &c. at Madiera, certify that her Britannic majesty's consul, as such, is en- titled to administer oaths in the island of Madiera." COLE now moved that the oflficer of the court might be directed to receive and file the above certificate, &c., which he had objected to do without the order of the court. — It was suggested, first, that the certificate should have specified the place at which the acknowledg- ment was taken; but it is submitted, that the words "at Madeira" are sufiicient, and that the place in the island where the commission was executed need not be now precisely defined. In re Shufiflebottom * decides that a certificate stating that the acknowledgment was taken in Philadelphia is sufificient. The general rules of this court of Hilary term, 1834,' do not direct how certificates of acknowledg- ment, taken under special commissions, are to be verified ; those rules are to be confined to acknowledgments in this country, and the of- ficer has adopted the practice with respect to acknowledgments taken abroad under this act, which prevailed in this court under the rule of this court of Hilary term, 14 Geo. 3.,' relating to common recover- ies. It has been held that the 6 Geo. 4. c. 87. s. 20, which authorizes a British consul at a foreign port to administer oaths, &c., does not * 6 Scott, 898. ' 1 Bing. N. C. 242; S. c. 3 Law J. Rep. (n. s.) C. P. 1. ' By -which it is ordered, ' * That if the party or parties shall be in Ire- land, or in any other part or parts beyond the seas, then the affidavit or affi- davits shall be made by one of the commissioners who hath taken the acknowl- edgment of the warrant or warrants of attorney, and shall be sworn either before some person duly authorized to take affidavits in this court, or before some mag- istrate of the place, where such acknowledgment shall be taken, having authority to administer an oath, and in the presence of a public notary, which notary shall also certify, in writing, under his hand and seal, as well the due administering of this oath, as also the name, signature, and office of the magistrate administering the same." 191 CONSULAR CASES give such consul power to act in cases of this nature, where there are native authorities to administer the oath — In re Eady ; ^ but as it appears here from the jurat, that the British consul can administer an oath in Madeira by the laws of that place, which fact is duly au- thenticated by the certificate of a public notary at Madeira, the spirit and intention of the act, as well as the practice of this court, are abundantly satisfied. Per Curiam. — "We think the certificate of the notary shews that the British consul was authorized to administer the oath, and there- fore the certificate, &c. may be received and filed. Motion granted. HTJTCHINSON v. COOMBS, (1825, U. S.) Ware. 65; Fed. Cases 6,955. Ware, District Court. (Syllabus) The c«rtificate of a consul that the seaman was discharged with hii approbation, will not preclude the court from inquiring into the cause of the discharge, and awarding damages, if the discharge was unjustifiable. lASIGI, INEE, (1897, U. S.) 79 Fed. Rep. 751. Brown, District Court. BROWN, District Judge. This is a proceeding by habeas corpus to procure the release of the prisoner, the Turkish consul general at Boston, from custody, upon a commitment made by a city magistrate on a charge of embezzlement in Massachusetts in violation of the law of that state, but not in violation of any statute of the United States. The commitment was in pursuance of a law of the state of New York, authorizing such a commitment for 30 days to await any requisition from the governor of Massachusetts. (752) The petition avers that the accused is the consul general of the sultan of Turkey, at Boston, duly recognized as such by the gov- ernment of the United States; that the embezzlement is charged to have occurrerd on July 1, 1892; that he was arrested while on a visit here, where access was impossible to his books and papers to vindi- cate himself; and that no indictment has been found against him; and it is contended that the y^roceedings before the city magistrate were without authority or jurisdiction, because of the petitioner's consular office. The amended return to the writ shows that the peti- tioner is a native-bom citizen of Massachusetts. ^6 Dowl. 615. 192 CONSULAR CASES A consul is not entitled, by virtue of his oflfiee as consul merely, to the immunities of a foreign minister. On the contrary, according to the rule of international law, he is subject civilly and criminally, like other residents, to the tribunals of the country in which he re- sides. 1 Kent, Comm. *44; Wheat. Int. Law (Lawrence's Ed.) 423; The Anne, 3 Wheat. 435 ; Gittings v. Crawford, Taney, 1, Fed. Cas. No. 5,465 ; Coppell v. Hall, 7 Wall. 542, 553 ; In re Baiz, 135 U. S. 424, 10 Sup Ct. 854 ; HoUander v. Baiz, 41 Fed. 732. Under our dual judicial system, state and federal, in the absence of any special provision of law, the petitioner would, therefore, be subject to arrest and prosecution in the local tribunals in the same manner as other persons; so that the question presented is not one of immunity from punishment, but only as to the proper mode of pro- ceeding, and whether his commitment and detention by a city magis- trate under a state law for rendition to Massachusetts, where alone the offense can be tried, are unlawful. The provisions of the constitution, and the acts of congress there- under, as respects public ministers and consuls, create a limited class of cases which are sui generis. By the second section of the third article of the constitution the judicial power of the United States is extended to ''all cases affecting ambassadors, other public ministers, and consuls;" and as to this special class of cases the constitution in the same section further declares that "the supreme court shall have jurisdiction." Thus all cases affecting consuls, whether civil or criminal, and whether arising under acts of congress, or under the common law or state statutes, are made cognizable by the supreme court, and thus "cognizable under the authority of the United States," without any further action by congress. U. S. v, Hudson, 7 Cranch, 32, 33. Under the general grant of judicial power, congress, how- ever, further provided by the judiciary act of 1789 (1 Stat. 73) that the supreme court should have "original but not exclusive jurisdic- tion of all suits in which a consul or vice-consul shall be a party" (section 13) ; that the district courts "shall have, exclusive of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, where the punishment should not exceed six months' imprisonment," etc.; "and shall also have jurisdiction, exclusive of the courts of the several states, of all suits against consuls and vice-consuls, except for offenses above the description aforesaid (section 9) ; and that the circuit courts shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States (except where otherwise (753) provided), and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein." 193 CONSULAR CASES Under these provisions it remained the accepted law until 1875, that the federal courts had exclusive jurisdiction of offenses by con- suls, whether at common law or under state or United States statutes. The ordinary rule that the United States could not punish common law or state offenses, did not apply. U. S. v. Ravara, 2 Dall. 297 ; Com. V. Kosloff, 5 Serg. & R. 545 ; U. S. v. Ortega, 11 Wheat. 472, 473, note. And Tennessee v. Davis, 100 U. S. 257, and Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, were decided on the same principle. The provisions of the judiciary act were carried into the United States Revised Statutes (enacted June 22, 1874) without any sub- stantial change, but imder a different arrangement. See section 563, pars. 1, 17; section 629, par, 20; section 687; section 711, pars. 1, 8. By this latter paragraph (8) the jurisdiction of the state courts was excluded in all "suits or proceedings" against consuls. The word "proceedings" in that paragraph was new ; while the word "offenses," which was in the exception in section 9 of the judiciary act, was omit- ted in paragraph 8 of section 711. By the act of February 18, 1875 (18 Stat. 316, c. 80), the eighth paragraph of section 711 was stricken out. The provisions of sections 563 and 629 conferring jurisdiction on the federal courts in all cases against consuls, both of crimes and of suits, were left untouched ; and so was the exclusive jurisdiction of crimes and offenses under the first paragraph of section 711. It is contended that by the repeal of the eighth paragraph of section 711, referring only to "suits or proceedings" against consuls, the jurisdiction of the state courts is opened to the prosecution of consular crimes and offenses against the state laws ; whereas it is urged in behalf of the petitioner that this repeal gives no such jurisdiction to the state courts, but leaves consular offenses cognizable as before in the federal courts alone, both by implication, from the nature of the consular relation, which involves the United States with foreign powers, and also by force of paragraph 1 of secion 711 which gives the federal courts exclusive jurisdiction over "all crimes and offenses cognizable under the authority of the United States." See Miller, Lect. Const, pp. 325, 326 ; Cooley, Lect. Const, p. 53 ; U. S. v. Ravara, supra; per Story, J., in U. S. v, Coolidge, 1 Gall. 488, Fed. Cas. No. 14,857; per Tilghman, C. J., in Com. v. Kosloff, 5 Serg. & R. 585. As respects any actual intention of congress, the repeal of para- graph 8 of section 711, by the act of 1875, affords no light. The ex- planation of that repeal is difficult, if not impossible. The act is en- titled "An act to correct errors and supply omissions" in the revised statutes of the United States. It embraces over 70 different subjects ; 194 CONSULAR CASES and the first section of the act declares that the amendments therein made are made "for the purpose of correcting errors and supplying omissions" in the revised statutes "so as to make the same truly ex- press" the laws in force on December 1, 1873. There is no doubt that on December 1, 1873, the jurisdic-(754)tion of the federal courts over consular offenses was exclusive. In both houses of congress when the bill was presented, as appears from the Congressional Record, mem- bers were induced to withdraw proposed amendments on the positive assurance that this act contained no new legislation and was solely for the purposes above expressed. So far as concerns crimes and of- fenses, it may have been considered that the first paragraph of section 711 included all offenses committed by consuls; and that the eighth paragraph had no reference to "offenses," as it covered only "suits or proceedings. ' ' But no such explanation is possible as regards civil suits against consuls, which were certainly embraced in paragraph 8 of section 711, and nowhere else; and that paragraph probably re- ferred solely to civil suits. But however it came about, the act of 1875 was passed, and paragraph 8 of the revised statutes stands re- pealed. So that, as stated by Mr. Justice Harlan in Bors v. Preston, 111 U. S. 261, 4 Sup. Ct. 407, there is now no statutory provision, which, in terms, makes the jurisdiction of the federal courts exclusive in suits (i. e. civil suits) against consuls. But the declared purpose of the act, and the circumstances of its passage, deprive the repeal of paragraph 8 of any effect by implication, beyond the necessary meaning of the repeal itself. Refrigerating Co. v. Sulzberger, 157 U. S. 1, 39, 15 Sup. Ct. 508. There is a manifest propriety, amounting sometimes to a practical necessity in order to avoid international complications, that the prose- cution, punishment or pardon of consuls which would necessarily materially affect their personal attention to their consular duties, should be within the control of the federal courts and of the federal government to which the consuls are accredited and which alone is responsible to foreign powers for the treatment of their representa- tives. While imprisonment for debt continued, the same considera- tions, though in a less degree, applied to civil suits. But since im- prisonment for debt has been abolished, the grounds for exclusive federal jurisdiction in civil suits against consuls exist in but small de- gree, if at all; while in all criminal cases, all the original considera- tions of policy and propriety remain unchanged. I do not thing it, however, necessary or appropriate at this time to pass upon the question whether the jurisdiction of the federal courts over consular offenses is now concurrent with the state courts, or ex- 195 CONSULAR CASES elusive of the state courts, either by implication, or under paragraph 1 of section 711. The only question needful for me to determine is whether the petitioner is unlawfully held in custody. The offense with which he was charged is an offense against the state of Massa- chusetts. He was committed by a committing magistrate under sec- tion 829 of the criminal code of New York, which undoubtedly covers the case in general terms, making no reference to the official position of the accused. As a consul is amenable to the local law, his arrest and detention are, therefore, lawful, unless they are prohibited by implication or by section 711 of the revised statutes of the United States. But that section, even giving to its terms the broadest effect, goes no further than to exclude "the jurisdiction of state courts." This refers to proceed- (755) ings which are properly in court, or form some part of the action of a court. It does not extend to proceedings out of court. It does not forbid the exercise of the police power of the state, nor the arrest of a consular officer by a policeman when com- mitting a crime, nor his consequent detention for surrender to the proper tribunal for punishment. And so the commitment of a consu- lar offender by a magistrate, merely for the purpose of transmitting him to the state where the crime was committed, and where alone he can be tried, is not a proceeding in court or by any court, (Robert- son V. Baldwin [Jan. 25, 1897] 17 Sup. Ct. 326), and therefore not prohibited by section 711. And so whatever implications in favor of exclusive federal jurisdiction in consular cases may be claimed, they are in no way incompatible with a preliminary arrest by a state mag- istrate for removal to the proper state for trial in whichever tribunal is appropriate. The object of any such exclusive jurisdiction in the federal courts, if it still exists in fact, is evidently quite foreign to such a preliminary proceeding as this, the purpose of which is the transmi.ssion of offenders to the state where the offense is committed, to be there brought to trial in the appropriate court, whether state or federal. All quesions under the United States statutes as to the proper tribunal for a trial of the cause can be more appropriately heard and determined there. This course seems the more proper in a case liko the present, inasmuch as section 1014 of the revised stat- utes, the only one under which removal could be had through federal proceedings, is limited to cases of "crimes or offenses against the United States"; and this is not such an offense. Either, therefore, the petitioner must be amenable to such proceedings as the present, or else he cannot be arrested or sent back at all. As I cannot find that the arrest and detention of the accused under the law of this state, for the purposes specified, are unlawful, the application must be de- nied. 196 CONSULAR CASES lASIGI V. VAN DE CARE, (1897, U. S.) 166 U. S. 391. Fuller, Supreme Court. (393) (Extract) The contention of petitioner was that no court of the state of Massachusetts had jurisdiction to entertain a criminal prosecution against him by reason of the matters specified in the commitment, jurisdiction being vested, because of his official position, exclusively in the federal courts; but the conclusion of the district court rested on the ground that whatever implications in favor of ex- clusive federal jurisdiction might be claimed, they were in no way in- compatible with the preliminary arrest by the magistrate for removal to the state where the crimes charged against him were alleged to have been committed, and where all questions as to the proper tribunal for trial could be more properly heard and determined. On the argument in this court, it appeared from a communica- tion from the assistant secretary of state, under date of March 19, that lasigi had been removed from his consular office, and that all of- ficial connection between him and the Turkish government had been severed, as the department of state had been officially informed by the Turkish minister on the ninth of March, Therefore when the order remanding lasigi to the custody of the state officer was entered, he was not holding a consular office, and the supposed objection to his detention for extradition to Massachusetts did not exist. As under § 761 of the revised statutes it is the duty of the court, justice or judge granting the writ, on hearing, "to dispose of the party as law and justice require," the question (394) at once arises whether the order of the district court dismissing the writ should be reversed, and petitioner absolutely discharged, because the objection existed when the writ issued, although it did not when the order was entered, even if such an objection were ever tenable, which we do not intend in the slightest degree to intimate it could be. If the application for the writ had been made on the twelfth of March, it could not have been awarded, on the ground alleged in this petition, and as, on that day, the petitioner could not have been dis- charged on that groimd, in accordance with the principles of law and justice, we are unable to hold that the order of the district court was erroneous. Ex parte Royall, 117 U. S. 241 ; Ex parte Watkins, 3 Pet. 193, 201 ; Ex parte Milligan, 4 Wall. 2, 111. INDIAN CHIEF, THE, (1800, Great Britain— U. S.) 3 Rob. C. 26; 2 Phillim. (2d Ed.) 310. Sir William Scott, High Court of Admiralty. 197 CONSULAR CASES (Extract) I am first reminded that he was American consul, al- though it is not distinctly avowed that (27) his consular character is expected to protect him; nor could it be with any propriety or ef- fect, it being a point fully established in these courts, that the char- acter of consul does not protect that of merchant united in the same person. It was so decided on solemn argument in the course of the last war, by the lords, in the cases of Mr. Gildermester,^ the Por- tuguese consul in Holland, and of Mr. Eykellenburg,* Prussian consul at Flushing. These cases were again brought forward to notice in the case of Mr. Fenwick,^ the American consul at Bourdeaux in the beginning of this war ; on whose behalf a distinction was set up in favor of American consuls, as being persons not usually appointed, as the consuls of other nations are, from among the resi- dent merchants of the foreign country, but specially delegated from America, and sent to Europe on the particular mission, and continuing in Europe principally in a mere consular character. But in that case, as well as in the case of Sylvanus Bourne,* American consul at Amsterdam, where the same distinction was attempted, it was held that if an American consul did engage in commerce, there was no more reason for giving his mercantile character the benefit of his official character, than existed in the case of any other consul. The moment he engaged in trade, the pretended ground of any such distinction ceased; the whole of that question therefore is as much shut up and concluded as any question of law can be. INPANTA, THE, (1848, U. S.) Abb. Adm. 263; Fed. Cases 7,030. Belts, District Court. (268) (Extract) It is expected that a foreign seaman seeking to prosecute an action of this description in the courts of this country, will (269) procure the ofificial sanction of the commercial or political represf-ntative of the country to which he belongs; or that good reason will be shown for allowing his suit in the absence of such approval. Upon the libel of Wood, however, it appears that he gives a credit to the exact amount of his wages, and upon the shipping arti- cles there is endorsed the certificate of the British vice-consul at this port, "that the master has, with his sanction, discharged and paid ofif Robert "Wood, the first mate," dated July 3, 1847. If this evidence does not conclude "Wood in any court, it, at all events, affords satis- * Concordia, Lords, Feb. 5, 1782. 'The Het Huys Brandenburg, Lords, July 16, 1784. *Pifrou, Lords. .Tuly 18, 1797. * Orion, Cushing, Admiralty, March 24, 1797. 198 CONSULAR CASES factory reasons to this court for declining cognizance of the matter, and for remitting him to the tribunals of his own country, where the validity and effect of these official transactions may be properly in- vestigated and determined. On the same day, the vice consul certified in the articles, that the master "reports the desertion of George States and other seamen," Any court would receive with great distrust any document or deposi- tion of the master, attempting to set up his free discharge of States from the ship, anterior to such official report that the seamen had deserted. It certainly presents a case more pertinent to the juris- diction of the British courts, which can more appropriately measure the acts of the official agent of their government, and determine the rights of their own subjects, than can a foreign though friendly tri- bunal, which might fail of setting a just appreciation upon the polity of her laws of navigation and trade, and might thus unintentionally counteract important public interests in attempting to adjudicate upon the individual demands of her subjects. Upon these considerations, I shall dismiss both these libels; and to protect the vessel and her master in the ports of the United States against a repetition of these suits, a decree for costs will be ordered against the libellants. - Decree accordingly, INVINCIBLE, THE, (1816, U. S.— France) 1 Wheat. 238. Johnson, Supreme Court, [Only mentions that the French consul interposed a claim in be- half of the French owners, — Ed,] JENKS V. COX, (1872, U, S,) 1 Holmes 92; Fed. Cases 7,277. Shepley, District Court, [Consul paid off sailor calculating price of oil at Sandwich Is- lands instead of that at home port. Court decided that seaman had a right to recover difference although discharge was by mutual consent, —Ed.] JONES V. IE TOMBE, (1798, U. S.— France) ? Dall. 384. Per Curiam, Supreme Court. Capias in case. This was an action brought, originally, in the supreme court, by John Coffin Jones, a citizen of Massachusetts, as 199 CONSULAR CASES indorsee of James Swan, against the defendant, the consul general of the French republic, as drawer of a number of protested bills of ex- change (for the aggregate amount of 385,964 livres tumois, 3 sols 8 den. equal to 70,052 dollars and 46 cents) corresponding with the following form: Philadelphie, le . . . an . . . de la R^publi- CoDBulat <1"6 Francaise, une et General indivisible. ► 179 (v. ■•) Prte les Etatv Unifl. Argent Toumois faisant, k 18 cents et 15-lOOe cent de Dollar par livres toumois CITOYEN, An. No. TEOISIEME. A trente jours de vue, je vous prie de payer par cette troisi^me de change (la premiere, la seconde ou la quatri^me ne r^tant) i I'ordre de la somme toumoii, en Icus de six livres ou autres esp^ces d'or ou argent, k la _valeur r^duite de dix-huit cens et quinze centiemes de cent de Dollar, par livres toumois, ou en Lettres-de-change but Hambourg, k I'acceptation et au change convenus avec le Porteur, valeur re^ue de dit, conform^ment au compt6 rendu au Ministre de par d^pSche du an ... . No .... .tunbr^e. . .et ^ ma lettre d'avis en date de ce jour No. . (Sign6) Li Tombe, Le Consul Q^n^ral Au Citoyen Payeur G^ndral des d^pensei du D^partement de.. A la Tr^Borerie Nationale, A Paris. Je prie le Citoyen Ministre de de f aire acquitter la pr^sente de laquelle j 'ai garanti le payment sur I'honneur de la Nation Francaise. (Signd) Adkt, Le Ministre Pl^nipotentiaire de la R^publique Francaise pr^s les Etats Unis d'Amfir- ique. (385) At the opening of the term, Dallas and Du Ponceau had obtained a rule, that the plaintiff show his cause of action, and why the defendant should not be discharged on filing a common appearance; and now IngersoU and E. Tilghman showed cause, produced the bills 03 9 u CD c c So C P H h3 § 2 ^ p ^ B. ' a S! » IT; cB O t n O &< ^ o SB • 200 CONSULAR CASES of exchange, and the plaintiff's positive afifidavit of a subsisting debt, including a declaration, "that he was induced, principally, to pur. chase the bills, in consideration of the character and private fortune of the defendant, and that without the fullest confidence in the per- sonal credit and responsibility of the defendant, he verily believed he would not have purchased them." They then contended, that the positive affidavit was sufficient, in this court, for holding the de- fendant to bail ; that it was not incumbent on them to show to whose use the money was applied, since it was paid to the defendant; that when a consul acts as a merchant, and draws bills for cash advanced, he is not entitled to any privilege ; that the defendant must prove that he had a right to draw the bills as consul ; that even if he had the right to draw, he might pledge his private credit, in aid of his official func- tion; and that the critical situation of the French Republic raises a presumption, that the reliance was placed on the private credit of the defendant. The cases heretofore decided in the English courts, are perfectly distinguishable from the present case. 1 T. Rep. 174. They occurred between parties belonging to the same government ; and there was no proof of credit being given to the individual. In support of these positions were cited, 2 H. Bl. 554. Vatt. b. 4. e. 6. s. 74. p. 139. s. 114. 2 Dall. Rep. 247. 2. Stra. 955. The counsel for the defendant were stopped when they rose to reply; and the court were unanimously and clearly of opinion, that the contract was made on account of the government ; that the credit was given to it as an official engagement; and that, therefore, there was no cause of action against the present defendant. The rule was, accordingly, made absolute ; and the plaintiff soon afterwards discontinued the action. JOEDAN V. WILLIAMS, (1851, U. S.) 1 Curt. 69. Fed. Cases 7,528. Curtis, Circuit Court, It is the duty of the master to interpose and quell an affray between the mate and the crew, and to use sueh means and such a degree of force as a competent master, of ordinary coolness, judging of the emergency upon the instant, might fairly deem necessary. (70) Under the act of congress of July 20, 1840, s. 16, the phrase, "to lay their complaints before the consul, ' ' applies only to such causes of complaint as are specified in the act, viz., that the mariner is detained contrary to his agreement, or that the vessel is unseaworthy, &c., &c., and not to affrays or quarrels be- tween the officers and crew. The liberty given to the crew by said act, to lay their complaints before the consul, is to be exercised under the fair and reasonable discretion of the master of the vessel, as to the time and mode of landing; and a refusal of duty on the 201 CONSULAR CASES part of the crew, because such pennission is not given, would be justifiable only when such refusal is necessary to prevent the loss of the right. Since the passage of the act of July 20, 1840, when the master of a vessel, in a foreign port, lays a complaint against any of his crew fully and fairly be- fore the consul, and the complaint is such that a competent master may fairly believe it to be within the consul's jurisdiction, and the consul, upon examination, finds it expedient or necessary to make use of the local authorities to keep the men safely, the master is not responsible for their imprisonment as for a tort, the con- sul being answerable to the injured party for any malversation or abuse of power. The detention by the master of the clothes of men imprisoned by the local authorities upon request of the consul, by reason of information given him by the master, while still belonging to the vessel, and also after their discharge there- from, is a breach of duty on the part of the master. These were libels filed in the district court by Williams and Gates, two of the crew of the bark Gibraltar, against Jordan, the mas- ter, complaining of an assault on board the bark, an imprisonment in the jail at Matanzas. and a conversion of the clothing of each libel- lant. The libellants testified for each other, and produced no other evidence. The material facts appear in the opinion of the court. The case was argued by R. H. Dana, for the appellant, and J. H. Prince, for the appellees. CURTIS, J. The material facts, stated in the libels and testified to by the libellants themselves, are that, on the morning of the 11th of April, while the bark was lying in the harbor of Matanzas, the mate came forward at (71) daylight and called all hands. No answer was made to this call. The call was repeated, in what one of the libellants characterizes as a loud, boisterous, and profane manner. Thereupon, Gates made answer, *'You need not kick up such a noise, for you were answered the second time." Some insulting words then passed be- tween the mate and Gates ; "Williams interposed in the quarrel, the mate struck Williams with his fist, the blow was instantly returned, Williams and the mate clenched each other; the master came forward and seized Williams by the hair of the head and drew him down to tho deck, or, as Williams says, toward the deck, and, while he was in that position, the mate kicked Williams in the face. Williams cried out, that the mate was kicking him; and Gates approached and said, "Knock off .such work as this!" The master let go his hold of Wil- liams, and struck Gates twice in the face. The contest then ceased; the master ordered the men to go to their work, and both officers went aft. The answers of the master state, that he knew nothing of the affair, being below, until two of the crew came aft, and called to him that the men were trying to kill the mate; that he ran on deck, and found five of the men, who constituted, at the time, the whole crew, except two men and a boy, attacking the mate; that he rescued the 202 CONSULAR CASES mate from them, and in so doing received a blow from Gates, and part of his clothing was torn off his back. He denies that he seized Wil- liams in the manner stated, or that, to his knowledge, the mate either struck or kicked him ; and he sets forth in his answer that, by reason of the lapse of upwards of a year between the termination of the voyage and the filing of these libels, the mate, and the two men who were faithful to their duty, have gone beyond his reach, so that he can not produce either of them as witnesses. I do not deem it necessary, in this part of the case, to (72) weigh very nicely the evidence of the libellants and the answers of the mas- ter, so far as they differ; because it does not seem to me that, if all which the libellants testify to were true, damages for an assault by the master ought to be awarded to either of these men. So far as ap- pears, the first knowledge which the master had of this contest was when he saw his first officer and one of the crew grappling with each other on the forecastle, four others of the crew being close at hand, even if they were not taking part in the affray. These men consti- tuted, at that time, the whole crew, except two men and a boy; and one of these two men is said to have been a deserter from a British ship of war, who kept himself concealed in the daytime in the hold. There was no second mate on board, the first mate having been dis- charged at Havana, as appears by the shipping articles, on the 10th of the preceding March; and though Rooker, the second mate, was, on the same day, promoted to be first mate, no second mate was shipped ; and it was not until the 17th of April that Reed, one of the crew, was appointed second mate. So that, when the master first saw this affray between his only officer and one or more of the crew, he had reason to believe that one man and a boy were the only assistants on whom he could rely. That it was not only his right but his duty to interpose, and put an end to the contest immediately, there can be no doubt; and it is equally clear, that he was justified in using such means as a competent master, of ordinary coolness, judging upon the instant of the facts before him, might fairly deem necessary. It should be added that, from the nature of such an interposition, if force be necessary, the person thus lawfully using it, to quell a fight between an officer and one or more of the crew, cannot reasonably be expected to measure his exertions by so nice a standard as would be necessary if (73) there were time for reflection, and opportunity to proportion the force exactly to meet the demand for it. Tested by these princi- ples, I am not satisfied that the force used by the master was exces- sive. Interposing, as he did, to rescue the mate, it is, to my mind, highly improbable that he struck Gates, unless Gates was assisting Williams in attacking the mate; for it appears there had been no 203 CONSULAR CASES previous difficulty between them, and it was not an occasion when the master would have been likely voluntarily to begin a new quarrel. He used no weapon. He did not manifest any passion ; and as soon as the mate was released he went aft, telling the men to go to work. This does not seem to me to be a fit ease in which to award damages against the master, for an assault, in favor of these libellants, who, accord- ing to their o'wn showing, were both originally in the wrong. Not to answer when an order was given and heard, and this order is admitted to have been heard, was a breach of discipline which might well ex- cite the mate, and cause him to repeat the order with violence of man- ner, which they who had thus provoked it had scarcely a right to com- plain of, and still less a right to make an insulting reply, — an insult, perhaps the more readily given, and more deeply resented, because the mate had been very recently promoted to that office, from the post of second officer, in which, for many purposes, he was scarcely more than one of the crew. It is true, the assault by the mate, if he struck the first blow, was unjustifiable; but for this the master, who denies all knowledge of it, and who is not proved to have known it, cannot be held responsible ; his duty being to put an end to the affray, who- ever began it. For this cause of action, therefore, I can award no damages. The second ground of complaint is, that the master caused the li- bellants to be imprisoned on short, in the (74) prison of the local au- thorities at Matanzas. This is attended with much more difficulty, and presents some questions of general importance, which, so far as I have been able to learn, are now for the first time raised. The ma- terial facts sworn to by the libellants, so far as they agree in their statements, are these : that, very soon after the termination of the af- fray above mentioned, and while the libellants and three others of the crew were engaged in removing the main hatch, the mate said to them, with an insulting address, "I will knock your brains out with a handspike." Williams then said to the master, "Captain Jordan, do you hear that?" And he replied, with an oath, "I do hear it." "Williams then said to the master, "I will do no more duty on board this ship until I see the consul." Gates and the other three men said the same ; and all five left their work and went forward into the fore- castle. The mate came to the forecastle door, and said to Williams, "Williams, are you going to turn to?" The reply was, "No, not until I have seen the consul." The mate told him he was a fool, and he had better think no more about it. The master then came forward, and asked each man if he was going to turn to. Each said no, until he should see the consul. The master replied, with an oath, that they should go in the ship, and that they would wish themselves in beU 204 CONSULAK CASES before the voyage was up. He soon after went on shore, returned with two boats and armed men, who carried the men on shore and took them to prison. On the next day, or the next day but one, the consul came to the prison ; they informed him of what had taken place, and he said he would see into it. In a few days he returned, the master being with him, and asked the men if they did not think they had better set- tle it, and go aboard of the ship again, and he repeated the question to each man. All but one replied, that they were afraid of their (75) lives, after the threats that were made ; and that one said he would go, if the consul would give him a paper showing what had happened on board. This the consul refused. A few days afterwards, the master came again to the jail, asked if they were not tired of staying there ; and said he had paid three months ' board, and there might be enough for another month. He went away ; and, on the 8th of May, the consul took them out of jail and sent them to the United States. This is the account given by the libellants themselves. In some material points it is directly met by the answer, and is not consistent with the cer- tificate of the consul, which has been read as evidence by agreement, as a substitute for the consul's deposition, who, it is stated, has ceased to hold that office, and could not be found by the respondent. I shall hereafter advert to some of these discrepancies; but, before doing so, I must inquire whether the men were justified in their refusal to do any more duty on board until they could see the consul. This right is claimed under the 16th clause of the act of July 20th, 1840, which is in these words : ' ' The crew' of any vessel shall have the fullest liberty to lay their complaints before the consul or commercial agent in any foreign port, and shall in no respect be restrained or hindered therein by the master or any officer, unless some sufficient and valid objection exist against their landing ; in which case, if any mariner desire to see the consul or commercial agent, it shall be the duty of the master to acquaint him with it forthwith, stating the reason why the mariner is not permitted to land, and that he is desired to come on board ; where- upon, it shall be the duty of such consul or commercial agent to repair on board and inquire into the causes of the complaint, and to proceed thereon as the act directs. ' ' This does not, in terms, give to the crew the right to refuse to do duty until they can see the con-(76)sul. It may fairly be implied, that they are not bound to do such duty as would prevent the exercise of the right to see him. They cannot be lawfully required to get under weigh to go to sea, and thus be de- prived of the right to lay before him their complaint of the unsea- worthy condition of the vessel ; they cannot properly be kept at work, and thus prevented from landing to lay their complaint before him, unless some sufficient and valid objection exists against their landing. 205 CONSULAR CASES But it by no means follows that they have the right, at any moment, to refuse to do any duty whatever till they have seen him. The mas- ter is to allow them the fullest liberty to lay their complaints before the consul ; but the exercise of the fullest liberty to do so, when inter- preted reasonably, is consistent with the master's being allowed fairly to exercise some discretion as to the time and mode of landing, and as to the prosecution of the work of the ship. Certainly, the re- fusal of the crew to obey the orders of the master is not the first step to be taken, on the instant, when this right to see the consul is claimed. Such a refusal may be justifiable, when absolutely nec- essary' to prevent the loss of the right; but I think very bad conse- quences would follow from admitting that anything else would justify it. As long as the obligations of the master, to allow the crew to lay their complaints before the consul, and of the crew to obey his orders and do their duty on board, can be reconciled, they must be; and I see nothing in this case which made the latter incon- sistent with the former. But, in my judgment, the claim of the crew to see the consul, and their refusal to do duty until they should see him, cannot be supported by this act, because their complaint was not one which the act was designed to enable them to lay before him. It can hardly be supposed that congress intended to (77) se- cure to the crew the fullest liberty to apply to the consul concerning any matter or thing, which they or any of them might desire to com- plain. Some practical result of such complaint, by means of some jurisdiction of the consul over its subject matter, must be considered to have been the purpose of this provision of the act. To secure the crew the right to land, or to impose on the consul the duty of immediately repairing on board, merely that he might hear and do nothing, because he had no power to do anything, cannot have been intended. Nor is any such intent indicated by the lang- uage of this law. It says, "to lay their complaints before the consul," etc. What complaints? This question is answered by the act, which provides, in clause nine, for a complaint by a mariner to a consul, that he is detained contrary to his agreement, or after he has ful- filled it, and which directs how the consul is to inquire into the truth of the complaint, and what he may do if he finds it well founded; and by clauses twelve to fifteen, inclusive, which authorize a com- plaint to the consul concerning the seaworthiness of the vessel, and point out what proceedings shall be had, and what jurisdiction shall be exercised by the consul upon such complaint. When, therefore, the next clause says the crew shall have the fullest liberty to lay their complaints before the consul, the natural meaning is, the com- 206 CONSULAR CASES plaints which, by this act, they are authorized to make, and he re- quired to hear; and this meaning is made quite plain by the con- cluding words of this clause, which require the consul (in case the crew cannot land) to repair on board, and "inquire into the causes of the complaint, and proceed thereon as this act directs." If he is to do this when he goes to them, I presume he is to do the same when they come to him; and, if so, it necessarily follows, that the com- plaints which they have, by this act, a right to lay (78) before him, are complaints upon which the consul can "proceed" as this act di- rects. Not that they must be well founded, in part or in whole, but that their subject matter must be such that, if well founded, the con- sul, by this act, has authority to proceed thereon. Now I do not find in this act, or elsewhere, that power is con- fered on a consul of the United States to take cognizance of a com- plaint by a part of the crew, that the mate had threatened to beat out their brains with a hand spike, followed by an appeal by the mate to the principal party in the quarrel, desiring him to think no more about it ; or, to state it more abstractly, I do not find that a consul has power, upon the application of the crew, to inquire into quarrels of this nature. The only approach towards such a case is in the seventeenth clause of the act, which is in the following words: "In all cases where deserters are apprehended, the consul or commercial agent shall inquire into the facts; and, if satisfied that the desertion was caused by unusual or cruel treatment, the mariner shall be dis- charged," etc. It is to be born in mind that this Is a new power, conferred on the consul for the first time; that it is a power to dis- solve a contract, or rather, authoritatively and finally to declare that it has been so far broken by one party that the other party is no long- er under obligation to perform it ; that this is a very high power, and, consequently, is not to be extended to a case not fairly within the words of the act, which apply only to a particular class of cases, where deserters are apprehended, and the desertion was caused by unusual or cruel treatment; and fall far short of cases like this, where, at the worst, only threats have been uttered. I am clear, therefore, that the refusal of the men to do duty can Gud no justification in this act; that this reference, especially after the mate had asked the principal (79) party to the quarrel to think no more about it, is strong evidence of an insubordinate temper, and justified the master in applying to the consul. That he did so apply, I am satisfied ; his answer so states ; and though an answer has no technical effect as evidence, it is not wholly without weight in con- sidering his conduct. There is nothing in the case tending to con- tradict this allegation in the answer, and the certificate of the con- 207 CONSULAK CASES 8ul. which is made evidence in the case, proves such application to him. Being satisfied, then, that the master did apply to the consul, and that he had, in point of fact, a case to lay before him, in which five out of seven of his crew, after a fight between one or more of them and the mate, had imjustifiably refused to do duty on board, I do not think it reasonable to doubt that he did lay this case before him. as he swears in his answer, especially when the consul certifies that on that day he acted officially, on the very ground that these men had refused to do duty on board. Nor can I come to any other con- clusion than that the interposition of the local authorities was by the procurement of the consul. It is true the men both testify that the consul did not see them on that day ; but so far as this tends to show that the consul did not interpose at all on that day, it is directly met by the answer, which says that the consul himself sent the of- ficer, who removed the men from the vessel, and the consul's certi- ficate declares, in so many words, that he ordered the men to be im- prisoned for safe keeping, in the Royal Prison. I must consider the imprisonment of these men, therefore, as an act of the local author- ities, done upon the request of the consul, by reason of information given him by the master, that the men had unlawfully refused to do duty on board. And the question is, whether the master is responsi- ble for their imprisonment, as for a tort. Prior to the Act of Con- gress of the 20th (80) July, 1840,. it had repeatedly been decided,^ that a master could not lawfully imprison a seaman on shore, unless he were unable to restrain him on board ; that a case of urgent neces- sity must be made out ; and that, although it would be a mark of good faith, on the part of the master, to take the advice of a consul, as being a person confided in by the government, for many purposes, yet such advice would not be otherwise operative to protect the mas- ter, because consuls had no power or duty in reference to the matter. I am satisfied of the correctness of these decisions, but I think the Act of 1840 has materially changed the relation of consuls to this sub- ject. The eleventh clause of the Act is as follows: "It shall be the duty of consuls and commercial agents to reclaim deserters, and dis- countenance insubordination by every means within their power; and where the local authorities can be usefully employed for that pur- pose, to lend their aid, and use their exertions to that end, in the most effectual manner." This certainly confers on consuls authority, and in strong terms makes it their duty, to employ the local author- ities, to discountenance insubordination, where they can be usefully *Uniteer authorities as to its final disposition." Whart. Law Dig. 782. In the matter of Chadwick, deceased, arising in 1875, Mr. Cad- walader, acting secretary of state, representing his government, writes: "In the case of American citizens dying abroad, it is made by law the duty of the United States consul within whose jurisdiction such death occurs to take charge of the effects of the deceased, cause an inventory of such effects to bfc taken, and dispose of any that may Ik; deemed perishable by sale at public auction, and the proceeds of which, together with all other property and moneys of the 238 CONSULAR CASES deceased, he is to hold subject to the demand of the legal representatives of the deceased. In case such representatives do not appear and demand the estate within a year, the consul is required to transmit the effects to the treasury de- partment, there to await final distribution to the parties entitled to receive them." And again the same distinguished lawyer, writing officially, says: "When a citizen of the United States, not a seaman, dies abroad without leaving a will, it is made the duty of a consul to take charge of any property he may leave in the consular district, and, after paying the debts of the deceased contracted there, to send the proceeds of the property at the expiration of a year to the treasury of the United States, there to be held in trust for the legal representative. In case, however, a legal representative shall appear and demand the effects, the consul is required to deliver the property to him, after deducting the lawful fees. The statute on this subject may be found in section 1709 of the revised statutes of the United States." (1044) Cushing, attorney general in 1856, held that consnls under the United States law, in the absence of treaty authority, could not intervene as of right in the administration of a decedent's estate except by way of surveillance. 8 Op. Atty. Gen. 98 ; Whart. Law Dig. 784, 785. Attorney General Black in 1859 held that the United States was not bound by treaty with Peru to pay a consul of that country, the value of property, belonging to a deceased Peruvian, which the consul was entitled to administer, but which had been unjustly detained and administered by a local public administrator, and that the remedy of the consul was in the courts. 9 Op. Atty. Gen. 383. While United States statutes are to be considered in arriving at the spirit and intention of a treaty, I apprehend that state statutes are not so entitled. State legislatures are only remotely connected with the treaty-making power, and their right to negotiate treaties is ex- pressly prohibited by the federal constitution. "All treaties made, or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Const, art. 6, § 3. This plain language compels the elimination of all consideration of state laws while in the business of construing a treaty. State law must yield, and adjust itself to the spirit and intent of a treaty. Ware V. Hylon, 3 Dall. 199, 1 L. Ed. 568; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628; In re Parrott (C. C.) 1 Fed. 481. Federal laws and treaties must be read together, and reconciled if possible. Chew Heong V. U. S., 112 U. S. 536, 5 Sup. Ct. 255, 28 L. Ed. 770; Taylor V. Morton, 2 Curt. 454-457, Fed. Cas. No. 13,799; Ropes v. Clinch, 239 CONSULAK CASES 8 Blatchf. 309, Fed. Cas. No. 12,041. It in no sense follows that treaties and state statutes are to be reconciled. If that were attempt- ed, there might have to be as many reconcilements as there are states in the Union. I find no federal authority wherein the possibility that the exercise of privileges of prerogatives imder a treaty might inter- fere with the pro\isions of state statutes or practice has been even dis- cussed. And other than the Louisiana case cited by Surrogate Thom- as, and another Louisiana case to which I shall later refer, I find no state authorities. On the contrary, I find that the United States was compelled to pay the loss awarded by international arbitrators where the surrogate of New York county, in violation of the treaty with Peru, failed to award administration to the Peruvian consul, but gave it instead to the public administrator. In re Vergil, 4 Moore inter Arb. 390. The Peruvian treaty provided : ' ' That in the absence of the legal heirs or representatives, the consuls, or vice-consuls of either party shall be ex officio the executors or administratora of the citizens of their nation who may die within their consular jurisdiction." 10 Stat. 945, art. 39. I quote from the unanimous decision of the four arbitrators : "In the month of May, 1857, the Peruvian citizen Jean del Carmen Vergil, returning from New York to the Pacific, died on board the steamer Empire (1045) City. The agents of the company to which that steamer belonged placed his personal effects in the hands of the 'public administrator of the city of New York. ' The minister of Peru in the United States, in July of the same year, represented to the secretary of state that the Peruvian consul in the same city had made proper representations to entitle him to the charge of these effects under existing treaty stipulations, but that, failing to secure the rights therein guaranteed to him, it was necessary to interpose diplomatic offices. The secretary of state immediately instructed the law officer of the government of the United States in the city of New York 'to take such steps as would secure compliance with the provisions of the treaty. ' The conflicting claims of the public adminis- trator and of the consul of Peru appear to have been heard before the surro- gate 's court of New York, at different times, up to the 2d of December, 1858, after which no record is found of further judicial investigation, although it con- tinued to be the subject of diplomatic correspondence up to December, 1862. When the attention of the secretary of state (Mr. Cass) was first invited to this case, no objection was presented to the views expressed by Mr. Osma in ref- erenc* to the Peruvian consul's right to take possession of Vergil's property under the treaty of 26th July, 1851 ; so far from it, it will have been observed, that prompt measures wpre taken to secure the observance of the stipulations of the thirty-ninth article of that treaty. When it had become evident that the proceedings were unsuccessful, the question was referred to the attorney gen- eral of the United States 'for his opinion as to the requisite measures to be pur- sued, in order to give effect to the stipulations of the treaty.' That officer de- clared that the detaining of the goods of the deceased from the Peruvian consul was unlawful, and a wrong which may justly be complained of. He thought, how- 240 CONSULAR CASES ever, that the Peruvian consul and minister were in fault in endeavoring to ob- tain ' redresB where there is no authority to furnish it, ' and he added that the judicial authorities would have given them this justice 'for the asking.' Dis- missing any further question upon the principles involved in this claim, in re- gard to where there is no disagreement among the commissioners, it remaing onlj to arrive at a just measure of the value of Vergil's effects as they were delivered to the public administrator, and claimed by the consul of Peru." While the forms of expression in the numerous treaties of the United States widely differ, nevertheless governments in their negotia- tions acted according to well-defined principles, and had in view spe- cific objects, and, although the language varies in the different treat- ies, the privileges and prerogatives given and obtained in respect to the same subject are in furtherance of the same common principle and object. So, where provisions are found in one treaty of doubtful im- port, we are entitled to look to the provisions of treaties with other nations, on the same subject, which are free from doubt, or which, having been construed, will aid us in determining the true spirit and meaning of that which is in doubt. It is true that in Aspinwall v. Queen's Proctor, 2 Curt. Ecc. 241, decided in 1839, the English prerogative court held contrary to the view of international law for which I contend. This case was decided at a period when that clause of the treaty between England and Spain which gave to their respec- tive consuls the right to administer upon the estates of their coun- try's subjects was being freely violated by both parties. It was also before the policy of the nations in respect to the authority of consuls had taken form so as to become a necessary part of the reciprocal relations between nations, and parliament had not by act at this time adopted a policy, as had the United States. The position taken by the English judge was in direct conflict with the opinion of Secretary (1046) Marcy above referred to, and I believe in conflict with the present interpretation of international law by all continental Europe. In this country I find but one published authority, other than that oi Surrogate Thomas, agreeing with the English view, and that is the case of Lanfear v. Ritchie, 9 La. Ann. 96, in which case the court, in an opinion of but a few lines, asserts the sovereignty of the state, and denies the right of federal authorities to interfere in probate matters. This case as an authority suffered severely in the early sixties, and it seems now of more than doubtful authority, since the decision of the supreme court of Louisiana in Succession of Rabasse, 47 La. Ann. 1454, 17 South. 867, 49 Am. St. Rep. 433, decided in June, 1895, re- versing the civil district court (the court of probate), and holding that the provisions of the treaty with Belgium, the stipulations of which were applicable to France, giving the consul the right to appear 241 CONSULAR CASES personallv, or by delegate, in all proceedings, in behalf of absent or minor heirs, repealed the authority given by law to the probate judge to appoint counsel or guardian ad litem to absent heirs. In this case there was a will and an executor, and the right to administer did not arise. Judge Ellis of the civil district court, whose decision was re- versed, took nnich the same view as is taken by the surrogate in the Logiorato case upon the subject of state authority. He said referring to the treaty provision : "I do not understand that its object or its effect was or is to strike down the authority or jurisdiction of the local probate tribunal, and to substitute therefor, in the contingency named, the power and authority of a resident consul to be by him exercised personally, or by a selected delegate. In this succession, during the progress of its settlement, should the consul of France or his delegate find it necessary to appear in behalf of absent or minor heirs domiciled in France, the treaty stipulation, which confers judicial standing quoad hoc on the consul or his delegate, would be respected within the limits of the contingencies named in said treaty; but, as a probate judge holding my authority from a sovereign state of the union, I do not recognize the right or power of the consul, either to take charge of the administration personally, or by delegate, nor his right to in- dicate what member of the bar I shall appoint to represent the absent heirs of the deceased. The property of the succession is all here; the deceased lived and died domiciled here. There may be domestic creditors, or domestic heirs legal or in- stituted. Our state laws provide fully for the protection of the interests of non- resident parties, and tlie succession is in the hands of a native testamentary ex- ecutor. I hardly deem it worth while to refer to the constitutional right of the government of the United States to regulate probate matters, or the settlement of successions in the several states of the Union. There can be, under our system of federal government, no such things as federal probate jurisdiction within any of the states, i. e., outside of the District of Columbia and the several territories. The probate jurisdiction was not conferred by the people, in their constitution, upon the general government, and ergo it was reserved by the states and the people thereof resf)ectively. It would not be in the power of the general govern- ment to withdraw this authority from the states, or any of them, by means of a treaty with a foreign government, and therefore to construe the 15th article ot said treaty Clfi Stat. 763) as is here contended by the representative of the consul of France would Vje to announce its indirect nullity because notative of our federal constitution. I do not so construe it; it is a useful and beneficial pro- vision, and will be respected in its letter and spirit whenever the occasion arisen to which it liaH application. I do not assume, nor can I, that it has ever been the intention (1047) '^^ ^^^ high contracting powers to said treaty that the consuls of either should have any other powers quoad the matters referred to in said article 15 than those of full capacity to appear, and obtain from the local probate court! the necessary j»rorp«HOH for the provisional care, protection, and preservation of the minor heirs, or j)roperty of their countrymen dying abroad under the condi- tions stated in said article." The supreme court of Louisiana in reversing the civil district court say : 'If the treaty is susceptible of the construction of the appellant, the result 242 CONSULAR CASES will be to avoid the appointment of an attorney for the absent heirs, and re- quire the recognition of the appellant as the delegate of the French consul. In our view, the stipulation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to rep- resent them as heirs. That was the manifest purpose, and the language of the treaty plainly expresses that intention. There is no power to appoint an attorney for absent heirs when the heirs are present and represented. * * * It is idle to call in question the competency of the treaty-making power, nor do we think any question can be raised that the subject of this treaty under discusBsion here is properly within the scope of the power. That subject is the right of French subjects to be represented here by the consul of their country. On that subject the treaty provision is plain. The treaty by the organic law is the supreme law of the land, binding all courts, state and federal. * » • The treaty discloses no purpose to require our courts to appoint, as the attorney for absent heirs, the delegate of the French consul. Its purpose is accomplished by placing the dele- gate before the court as representing the absent heirs, and precluding the ap. pointment of any attorney to represent them." Having discussed the principles of the interpretation and con- struction of treaties at some length, let us look at the particular lan- guage before us. Consuls are given the right to intervene "in the possession." We must give this form of expression some weight and some effect. It would seem that the only intelligent construction would be that the consul had the right to come between the property and the possession by some one else than himself, with the result that posses- sion must necessarily be landed in him. To intervene in the adminis- tration is secondary ; he first comes into possession, and then he comes between the administration and the person who might have a right thereto under state law. This is giving to the word "intervene" its ordinary definition, and avoiding its local legal significance. En- deavoring to ascertain the spirit and intention of the language "to intervene in the possession, administration and judicial liquidation of the estate of the deceased," we must have regard for the entire con- text, and we may not select a single word for definition. It must not be viewed, as would a New York statute, from our own local stand- point. It must be borne in mind that there can be but one correct construction of a contract; therefore, as we construe, so must the au- thorities of Italy; consequently, we must view it from the Italian, as well as our own, standpoint, and from both see what was intended to be accomplished by the use of the words quoted. This can be done in no better way than by studying the policy of Italian law on the subject, and at the same time realizing that the estates of foreign sub- jects are to be distributed according to the law of their own country, (1048) and not ours, and in such distribution the consul is more competent to execute the laws of his country, of which he must be pre- sumed to have particular knowledge, while our courts, on the contrary, 243 CONSULAR CASES are not presumed to be learned in foreign laws, and cannot take ju- dicial notice of them. If the words, "conformably with the law^s of the country for the benefit of the creditors and legal heirs," relate to rights, and not to procedure, then the estate of a foreign subject would have to be distributed in accordance with our state statutes of distribu- tion. This certainly could not have been the intention of the contract- ing powers. They could not have intended to take from their own subjects the rights which they would have enjoyed had their intestate died at home, and to permit them to share according to a foreign statute of distribution. The right that is given by the treaty is the possession and paramount right of administration, and this is not limited by the words "conformably with the laws of the country for the benefit of the creditors and legal heirs." These latter words pro- vide merely for the procedure. The consul, having been given the right of possession, is then required to administer the estate in con- formity with the local laws in reference to such matters. This inter- pretation gives full protection to the domestic creditors, and that is all tliat the policy of the state law demands. The desire of state courts is to protect resident creditors, and after that is done they have no further concern except to deliver the property into the hands of the officers of the state to which it properly belongs. There is no prin- ciple known to American law requiring our courts to protect foreign subjects against the claims of duly accredited representatives of their own government. I am satisfied that, both under a fair interpretation of the treaty provisions as well as under the general law of nations as recognized by the United States, the Italian consul is entitled to the possession, for the purposes of administration, of the property of all Italian sub- jects dying intestate within his consular jurisdiction. Decreed accord- ingly- lOGIOEATO'S ESTATE, IN EE, (1901, U. S.— Italy) 69 N. Y. Supp. .507; 34 Misc. .31. Thomas, Surrogate's Court, New York. (508) Application by the consul general of Italy for letters of ad- ministration on the estate of Giuseppe Logiorato, sometimes known as Joseph G^rrodo, deceased. Letters granted. Italy Consular Treaty 1878. art. 17. declares that consular officers of such country shall enjoy all the rights, prerogatives, and privileges granted to those of the same grade of the most favored nations. D. Humphreys, for petitioner. THOZ^IAS, S. The decedent was at the time of his death a resi- 244 CONSULAR CASES dent of this country. He died intestate, and left assets in this coun- try in a small amoimt. He was a citizen and subject of the kingdom of Italy, and all of his next of kin are residents of Italy. He left no next of kin residing in the state of New York, and it is alleged in the petition that there are no creditors. The petitioner is the consul general of the kingdom of Italy. The public administrator, though duly cited, makes default. The petitioner asserts a right to admin- istration without giving any security, and in preference to the pub- lic administrator, and bases his claim on the facts as to treaty pro- visions in the treaties between the United States and Italy, recited in the opinion of the learned surrogate of Westchester county in the recent case of In re Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119, and on the rule asserted in that decision. The application will be granted on the ground that no relative, or guardian of a minor rela- tive, and no creditor or public administrator, will consent to become administrator, and the petitioner is a legally competent person to act as such (Code Civ. Proc. § 2660) ; but I am unwilling to base my conclusion on the reasoning of the case cited or to adopt it as a pre- cedent. I agree that a solemn treaty of the United States with Italy is of binding force, and that it must control all courts, even to the extent of ousting them of jurisdiction or of changing the rules of their procedure, but in order to accomplish this result their meaning and purpose must be clear and expUcit. Conceding that, under the ' ' most favored nation" clause in the provision of the treaty with Italy re- lating to the rights, prerogatives, immunities, and privileges of con- suls general, the stipulation contained in the treaty of July 27, 1853 (10 Stat. 1009), with the Argentine republic, becomes a part of the treaty with Italy, I do not find (509) in that stipulation any justifi- cation for the conclusion sought. It is in the following words : "Art. 9. If any citizen of the two contracting parties shall die without will or testament in any of the territories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such con' Bul-general or consul in his absence, shall have the right to intervene in the pos- session, administration and judicial liquidation of the estate of the deceased, con- formably with the laws of the country, for the benefit of the creditors and legal heirs. ' ' It will be observed that the right assured to the consul general is to "intervene," and that this intervention is to be "conformably with the laws of the country." To intervene is to "come between" (Webst. Diet.), and the right to intervene in a judicial proceeding is a right to be heard with others who may assert demands or de- fenses. It is not a right to take possession of the entire corpus of a 245 CONSULAR CASES firnd which is the subject of the proceeding. A right to intervene "conformably with the laws" of the state of New York is something different from a right to set aside the laws of the state, and take from a person who, by those laws, is the officer intrusted with the ad- ministration of estates of persons domiciled here, and who leave no next of kin within the jurisdiction, the right and duty of admin- istering their assets. .Vnd, when the laws of the state require an ad- ministrator to give a bond to be measured by the value of assets, nothing in the treaty provision grants to the consul an immunity from this requirement to be obtained merely by asserting, in substance, that he has no knowledge of the existence of any debts. The eminent text writers cited in the opinion of the learned surrogate do not intimate that the courts of civilized states, acting under general laws framed for the protection of foreigners equally with their owm citizens, must grant administration, contrary to the terms of those laws, to consuls, under any circumstances whatever. Thus, in "Wools. Int. Law, p. 154, the learned writer, in enumerating the duties of consuls, includes the power "of administering on the personal property left within their consular districts by deceased persons, when no legal representa- tive is at hand, and when law or treaty permits, and thus of repre- senting them, it may be, before the courts of the district." Consuls may accept administration, but no right to override local law is sug- gested. See, also. Wheat. Int. Law (3d Ed.) 167, 168. A similar question was passed upon by the supreme court of Louisiana in 1854, in Succession of Thompson, 9 La. Ann. 96. In that case administra- tion was granted to the official curator, under the laws of Louisiana, of a decedent domiciled in the state, and leaving property within the jurisdiction of the court. The petitioner was the vice consul of the kingdom of Sweden and Norway, who represented that the deceased was a Swede by birth, and at the time of his death was a subject of the king of Sweden. On this ground he claimed the right, in his capacity of consul, to take the succession out of the hands of the de- fendant, who was the duly-appointed administrator. This right, he alleged, he was entitled to exercise under the laws of nations, the laws of the United States, (510) and by virtue of treaties entered into be- tween the United States and the kingdoms of Sweden and Norway. The court said : "Tho Ti^ht claimed ia incompatible with the sovereignty of the state, whose jurisdiction extends over the pro[)erty of foreigners as well as citizens found within its limits. Thf dinposition of the estates of foreigners has been mad* the subject of special h'giHlation, and no treaty or law of the United States exists wlTich, as the paramount law, confers any such right as is claimed by the 246 CONSULAR CASES petitioner, nor are we aware of any principle of the law of nations which would entitle the petitioner to call in question the authority of our laws on that sub- ject. " In Aspinwall v. Queen's Proctor, 2 Curt. 241, 244, an application was made in the English prerogative court of Canterbury by the American consul to take administration of the goods of an American subject domiciled in America, who died in itinere, leaving personal property in the jurisdiction of the court. The application was denied in the opinion of Sir Herbert Jenner on what appeared to me to be satisfactory grounds. Among other things, he stated that the crown was the party to see that the property of any person dying within its dominions gets into proper hands. My conclusion, therefore, is that the petitioner may have letters on giving the usual security, but that this is done pursuant to our local law, and because the public adminis- trator has refused to act. Letters granted. LONDON PACKET, THE, (1815, U. S.) 1 Mas. 14; Fed. Cases 8,474. Story, Circuit Court. (Extract) There had been a claim. A consul was authorized to claim in behalf of subjects of his country. It was admitted in other coimtries, and he should be sorry, if a different rule were to prevail here. LONG V. POWELL, et al., (1904, U. S.) 120 Ga. 621; 48 S. E. 185. Fish, Supreme Court of Georgia. ' ' (Syllabus) A consul of the United States is authorized to take at hia consulate an acknowledgment of a deed to realty situated in this state, and his certificate, under official seal, is evidence of such acknowledgment. LORING V. THORNDIKE, (1862, U. S.— Germany) 5 Allen 257, Merrick, Supreme Judicial Court of Massachusetts. (263) (Extract) In reference to this question, it appears from the uncontested (264) evidence in the case that on the 4th of August 1851 Mr. Thorndike, who was a citizen of Massachusetts, and Kath- arina Bayerl of INIayence, in the grand duchy of Hesse-Darmstadt, were temporarily residing at the free city of Frankford, neither of them then having or ever having had any domicile there, and were 247 CONSULAR CASES desirous of being lawfully married; that, being foreigners and un- acquainted with the local law, they applied for information "to magis- trates, counsel and other persons skilful in the law," and were advised that "the proper mode of entering into the marriage relation was the solemnization of it before the consul of the United States at Frankfort on the Main ; ' ' that Mr. Schwendler, the consul, gave them the same advice; that they thereupon appeared before him for the purpose of being married, and there signed their marriage agreement, which was attested in the presence of two subscribing witnesses, and was then duly entered in the consular register; and duplicate copies of it were delivered at their request to each of the parties.* The consul then declared that their marriage was legal and valid. And in addi- tion to this he informed them that he had married many American gentlemen to American or German ladies; and that these marriages, solemnized and registered by the consul, as was (265) done in this case, had always been regarded by the Frankfort and German author- ities as valid. In the full belief that they were thus lawfully mar- ried, they thenceforward lived together as husband and wife, during the life of Mr. Thomdike. Here then there was in fact a contract of marriage between the parties, and a celebration of their nuptials by the observation of a form and ceremony which they were advised and believed made their marriage binding, obligatory and complete. But its validity is now de- nied, upon the ground that the civil validity of a marriage contracted, entered into or celebrated at the free city of Frankfort, depends wholly upon the civil act upon that subject there enacted. And these parties, •The following is a copy of this agreement: "We, the undersigned, Andrew Thomdike, of the city of Boston, county of Suffolk, and state of Massachusetts, aged sixty years, and Katharina Bayerl, of the city of Mayence, in the grand duchy of Hesse, aged twenty-six years, do hereby declare, that we have truly and Bolemnly promised to marry each other, and that we now both wish to enter into the state of marriage; and that we desire, in conformity with the laws of the United States of America, that the civil act of our union in marriage may be executed in the usual form before Ernest Schwendler, Esq., the duly appointed consul of the United States of America for this free city. We therefore confirm by these prpsents our mutual consent to the desired conjugal union, and do sin- cerely and solemnly promise scrupuously to fulfil the duties of husband and wife, by virtue of our respective seals and sLgnatures. ' ' Frankfort on the Main, Aug. 4, 1851. (Seal) Andrew Thomdike. (Seal) Katharina Bayerl." ' ' Sealed and signed in presence of G. Lindheimer, E. Eckhardt, Aa witness." 248 CONSULAR CASES not having conformed to the provisions and requirements of that act, it is contended that they were never lawfully married. The difficulty in determining this question arises from the con- flict of evidence in relation to the question, what was the local law of the place where they were married ? We have a copy of the civil act of the free city of Frankfort annexed to the depositions of the wit- nesses who have been examined upon the subject, all of whom are counsellors at law and residents of that city. Dr. Von Guaita and Dr. Hoffman, witnesses on one side, testify that the civil act, which contains the provisions of law with regard to the form in which a mar- riage is to be entered into there, applies as well to foreigners as to citizens of Frankfort ; and that as the civil validity of a marriage de- pends solely on the execution of that act or the due observance of its provisions, the ceremony and proceedings which took place before the American consul, as before stated, did not constitute a valid marriage. But on the contrary Dr. Braunfels and Dr. Voigt testify with equal confidence that the civil act of Frankfort is inapplicable to foreign- ers; that marriages between such persons which are entered into at that place according to the prescriptions of the common law are valid and obligatory; and that, under the circumstances before stated, the marriage between Mr. Thorndike and Katharina Bayerl, which took place in the presence and with the sanction of the consul of the United States, was legal and valid. (266) In this positive and irreconcilable conflict of testimony, we are under the necessity of considering the reasons assigned by the witnesses for the opinions they express, and of comparing their opin- ions with the language and terms in which the civil act is expressed. It is noticeable, in the first place, that Drs. Von Guaita and Hofl'man deduce their conclusions entirely from the particular pro- vision in the statute of Frankfort, denominated the civil act, which, after prescribing the course of proceedings to be had to constitute a marriage there, declares that the validity of the marriage shall depend upon the execution of that act. But they fail to point out or indicate any part of that act which, either in direct terms or by necessary or reasonable implication, makes it applicable to foreigners temporarily resident there, who seek to contract a marriage and to be lawfully married at Frankfort ; nor do they refer to any judicial interpretation of its provisions to that effect, or to any legal authority in support of their opinion. But Drs. Braunfels and Voigt testify that they have known many cases, to some of which they particularly refer, in which it has been determined by German tribunals that the said civil act does not apply to or embrace the cases of foreigners entering into that relation in that city. And that this is a reasonable and proper con- 249 CONSULAR CASES elusion would seem fairly, perhaps it might be said necessarily, to re- sult from several provisions of that act. It is upon this question very significant that the civil act makes very precise and exact provisions as to the manner in which citizens of Frankfort may conclude a valid marriage abroad, while it does not in any word or phrase allude to the way or manner in which foreigners may conclude a lawful mar- riage there. But a more important and what perhaps ought to be re- garded as a decisive consideration, results from the provisions concern- ing the publication of banns. These are most expressly required to be published in each of the places where the parties proposing and in- tending to be married are respectively domiciliated ; in the city in one, in the rural districts in another prescribed form and manner. And this prior publication of banns is made one of the prerequisites es- sential to the validity (267) of the marriage. Such a provision, it would seem obvious, could not have been intended to have any refer- ence to foreigners who had not in some manner acquired a domicile there, becau.se it ordains the observance of a regulation with which it would be impossible for such persons to comply, and to which it would therefore be absurd to require them to conform. This provision, therefore, imder an interpretation which appears to be just and rea- sonable, has a very direct and strong tendency to show that the civil act is only applicable to and obligatory upon citizens, and persons who by choice, or long extended residence have obtained a domicile in the state where the law is enacted. In support of this conclusion, and as tending also to prove the validity of the marriage of Mr. Thorndike and Miss Bayerl, Dr. Braunfels testifies that the American consul "has always and at any time been in the habit of solemnizing such marriages;" that he mar- ried a great number of couples where each of the parties, or the hus- band was a citizen of the United States; that this has been done openly, with the full knowledge of the Frankfort authorities, who have never in any manner objected or interfered to prevent it ; and he adds: "I have known of some cases, (for instance, the case of Mr. Pfeil,) where Frankfort ladies, intending to marry American gentle- men, have been released by the senate from their citizenship expressly 'that thpy might enter into civil marriage before their consul.' " Certainly such a proceeding must be regarded as a very clear and au- thorative declaration that the provisions of the civil act of marriage are not applicable to or obligatory upon foreigners, and that a mar- riage of such persons before the consul of their country, according to the prescription of the common law, would be recognized as legal and valid at Frankfort. And this conclusion seems to be fully warranted by the decisions in the cases referred to by the witnesses, in which the 250 CONSULAR CASES marriage of foreigners by Protestant curates at Frankfort, without conforming to the requirements of the law of the 19th November 1850 — the civil act before referred to — has been acknowledged and upheld as valid by German judicial tribunals. The testimony of Drs. Braunfels and Voigt, that the marriage (268) of Mr. Thorndike and Miss Bayerl by and before Mr. Schwend- ler, the consul of the United States, in the form and manner in which it was there contracted and entered into by the parties, is valid in Frankfort, as having been duly contracted according to the prescrip- tions of that portion of the common law which had not been there ab- rogated or repealed, is very strongly corroborated by the decisions to which they refer ; and especially by the proceedings of the public au- thorities in releasing females from their citizenship in order that they might, and to enable them to, enter into a valid marriage there before the consul of the country of their intended husbands. And when it is considered that foreign consuls, and this consul in particular, did fre- quently and notoriously, for and in behalf of parties similarly sit- uated, officially perform, and allow and permit to be performed in his presence, a form and ceremony with an intent and design thereby to marry the parties, and to make their marriage complete and legal ; and that when Mr. Thorndike was carefully inquiring of proper and competent persons to obtain accurate information on the subject, he found it to be the concurrent opinion and advice of the consul, and of "magistrates, counsel and persons skilful in the law," that the proper mode and form of marriage by him as a foreigner was the solemniza- tion of it before the consul of his country, and that such proceeding would make the marriage legal, we think that there is a clear pre- ponderance of evidence that the statements of Drs. Braunfels and Voigt are to be relied upon, and consequently that the lawfulness and validity of the marriage of Mr. Thorndike and Miss Bayerl are satisfactorily proved and established. The circumstances which havfe been shown, and as to which there is no dispute and can be no doubt, concerning the cohabitation of these parties as husband and wife, their constant and mutual recognition of the subsistence of that rela- tion, and their care and nurture of children as their common offspring, would be quite sufficient, under the provisions of our own statute, in the absence of evidence as to the particular form and manner in which it was contracted or solemnized, to prove a valid and legal marriage. Gen. Sts. c. 106. § 22. And it would certainly be un- reasonable and unjust to (269) withhold from our o^\ti citizens mar- ried in foreign countries the benefit of the presumptions resulting from the provisions of our own statutes. But it is unnecessary to urge or to rely upon this consideration, since upon the whole evidence be- 251 CONSULAR CASES fore us there appears to be a clear preponderance of proof that Mr, and Mrs. Thomdike were lawfully married at Frankfort, and that their marriage would, in view of the proceedings and ceremonies at- tending it, be there recognized as valid by the public authorities and judicial tribunals. This being so, their marriage is, upon the well es- tablished principles of the common and international law, to be re- garded and treated as valid and obligatory in the countries where the parties respectively had their domicile. Bishop on Mar. & Div. § 125. LORWAY V. LOTTSADA, (1866, U, S.) Fed. Cages 8,517, Lowell, District Court. (Extract) But, after he has done an act professedly official, I see no reason why an individual may not try the question here, whether the act was within the scope of his authority, [In this case the jury instructed by the court gave the plaintiff damages against the consul for half the fees charged. This decision is hard to defend and is in conflict with others. Such a system might make it impossible for a foreign consul to col- lect fees and would vary the fees according to the jurisprudence of the country in which the consul was established. — Ed.] LUSCOM V, OSGOOD, (1844, U. S.) 1 Sprague 82; Fed. Cases 8,608; 5 Moore 145. Sprague, District Court, [It would be the duty of consul to return minor sailor to his pa- rents. — Ed.] LYNCH V. CEOWDER, (1849, U. S.— Great Britain) 12 Law Rep. 355; Fed. Cases 8,637, Belts, District Court, [On protest of British consul refused to take jurisdiction and com- pelled master to pay summary costs. — Ed.] McCANDLESS v, YORKSHIRE, (1897, U, S.) 28 S. E. 663; 101 Ga. 180. Cobb, Supreme Court of Georgia. (664) 1. The deed which was filed and recorded for the purpose of making the levy in this case began with the words, "State of New 252 CONSULAR CASES York, County of New York," and recited that it was the deed of "the Yorkshire Guarantee and Securities Corporation, Limited, by its pres- ident (naming him) and directors (naming two persons of the state and county aforesaid)." It was signed by the president and direc- tors, and attested as follows: "W. A. Angells, Cleveland, Road- head, Department Accountant. Frank C. McGee, Consul of the U. jS- of America at Huddersfield, Eng. " There was no evidence as to where the deed was actually executed. From the caption and the re- citals in the paper it must be presumed, in the absence of evidence showing the place of its actual execution, that the paper was signed and attested in the state and county of New York. AUgood v. State, 87 Ga. 668, 13 S. E. 569. 2. If the paper was actually signed in the state of New York, the question is raised: Was it so attested as to be admitted to record under the laws of the state? "To authorize the record of a deed to realty or personalty, when executed out of this state, the deed must be attested by, or acknowledged before, * * * a consul or vice- consul of the United States, the certificate of these officers under their seal being evidence of the fact." Civ. Code, § 3621. "Every secre- tary of legation and consular officer is authorized, whenever he is re- quired or deems it necessary or proper so to do, at the post, port, place, or within the limits of his legation, consulate, or commercial agency, * * * to perform any notarial act which any notary public is required or authorized by law to do within the United States. ' ' Rev. St. U. S. (2d. Ed., 1878) § 1750. Construing the section of the civil code which authorizes a consul to attest a deed in connection with the section of the revised statutes which defines the powers of a consul, it is clear that it was not intended that a consul could act, in relation to the the matter of attesting deeds, at any other place than that at which the laws of the United States authorize him to perform such acts. Therefore, if a consul of the United States attest a deed at any other place than his consulate, such attestation would not be sufficient to authorize the record of the deed. M'DONOUGH V. DANNERY, (1796, U. S.— France and Great Britain) 3 Dall. 188. Supreme Court. [Salvage and residue of British ship captured by French and abandoned. British and Frencli consuls claim the residue — and each in turn appeals — supreme court finally decides in favor of French consul's claim. — Ed.] 253 CONSULAR CASES McKAY V. GARCIA, (1873, U. S.) 6 Ben. 556; Fed. Cases 8,844. Blotch ford, District Court. Suit Against Consul. — Practice. — Arrest. — Applicability of the New York Code. — Pendency of Another Suit for the Same Cause of Action. (566) BLATCHFORD, J. This is an action for a debt. By the act of February 28th, 1839 (5 U. S. Stat, at Large, 321), in con- nection with the act of January 14th, 1841 (Id. 410), imprisonment for debt is allowed, on process issuing out of a court of the United States where, by the laws of the state, imprisonment for debt shall be allowed, the conditions and restrictions prescribed by the state be- ing applicable to the process issuing out of the court of the United States. The act of 1839 provides that ' ' the same proceedings shall be had" in the court of the United States "as are adopted in the courts of such state." The 179th section of the code of procedure of New (557) York pro- vides for the arrest and imprisonment of a defendant in an action for money received in a fiduciary capacity. This is such an action. This being an action at law, the practice in it must, under the 5th section of the act of June 1st, 1872 (17 U. S. Stat, at Large, 197), conform, as near as may be, to the practice now existing in a like cause in the courts of record of the state of New York, The defendant having moved, on affidavits on his part, to sub- stantially vacate the order to hold to bail, the plaintiff has a right, under the provisions of section 205 of the code of procedure of New York, to oppose such motion on new and futher affidavits and proofs, in addition to those on which the order to hold to bail was made. The pendency of a former suit against the defendant in a state court for the same cause of action, is of no importance, for such state court was and is without jurisdiction of the suit, as the defendant was and is a foreign consul. But if he were not, the weight of authority is that the fact of the pendency of such suit in the state court would be of no effect on this suit (Loring v. Marsh, 2 Clifford, 311,322). The cause of action here is one which was assignable. On all the affidavits and papers on both sides, I am of opinion that the order to hold to bail would have been properly grantable in the first instance. If so, it must be upheld. The motion to vacate the order to hold to bail and to discharge the defendant from bail to the marshal on his filing common bail, is denied. 254 CONSULAR CASES MADONNA D'IDRA, (1811, Great Britain— U. S.) 1 Dod. 41. Sir William Scott, High Court of Admiralty. (Extract) But the court is not left solely to its own conjectures, as to what may be the established usage with respect to the subsis- tance of the dismissal of mariners employed in the navigation of Greek vessels. It is sworn by a person, who states himself to have been for twenty years captain of an Ottoman vessel and at present the consul-general of the sublime porte resident in Great Britain, that MAGEE, IN RE, (1885, Great Britain) L. E. 15 Q. B. D. 332; 54 L. J., Q. B. 394. Cave, Queen's Bench. (Syllabus) When an affidavit or proof in bankruptcy is sworn abroad before a British consul, or vice-consul, a notarial certificate in verification of the signa- ture and qualification of the consul, or vice-consul, is not required. MAGEE V. THE MOSS, (1831, U. S.) Gilp. 219; Fed. Cases 8,944. Hopkinson, District Court. (Extract) I have declared that I will not countenance the prac- tice of thrusting our seamen into foreign gaols by the captain, through influence he may have with our consuls or the officers in a foreign port. MAHIN V. UNITED STATES, (1905, U. S.) 41 Ct. CI. 1. Booth, Court of Claims. (Syllabus) A consular agent has no direct connection in the matter of ac- counting with the department of state. He is under the control and supervision of the consul, and to him only does he report. MAHONEY V. UNITED STATES, (1869, U. S.— Algiers) 10 Wall. 62. Field, Supreme Court. [When Algiers came under the French control the salary of the American consul was abolished. — Ed.] MALI V. KEEPER OF THE COMMON JAIL, See Wildenhua's case. 255 CONSULAR CASES MANNHARDT v. SODERSTKOM, (1806, U. S.) 1 Binn. 13S. Tilghman, Supreme Court of Pennsylvania. (142) TILGHMAN, C. J. now delivered the opinion of the court. This is an action on the case on a bill of exchange drawn by the defendant, who appeared and pleaded the general issue ; at the same time entering a protest against the court's jurisdiction, verified by his oath, in which he averred that at the time of issuing the writ in this clause he was, and still is consul general of his majesty the king of Sweden, in the United States of America. The defendant's counsel have now brought the point of jurisdiction before the court, by a motion to quash the writ ; and it is confessed by the counsel for the plaintiff that the defendant's allegation, that he is consul general of the king of Sweden, is true. Before I proceed to deliver the opinion of the court on the main question, it will be necessary to take notice of one or two objections of the plaintiff's counsel which relate to other points. They have placed some reliance on the circumstance of the de- fendant's having submitted to suits, judgments, and executions, in many instances ; which they have proved by the records of this court, and the Common Pleas. In answer to this objection, it need only be obser\'ed, that in those cases it did not appear on the record that the defendant was a consul, and therefore the court could take no notice of it. They have also urged that the defendant is too late in excepting to the court's jurisdiction after pleading the general issue; and cases have been cited on this head from the English books of practice. In answer to this objection it is sufficient to say, that by the established practice both in the courts of this state and of the United States, the court will put a stop to the proceedings in any stage on its being shown that they have no jurisdiction. In the cases of Diuicanson v. Maclure in this court, and of Snell v. Fausatt in the circuit court of the United States before Judge "Washington, a defect of jurisdiction appearing, in the opinion of the defendant's counsel, on the evidence given on the trial of the general issue, the point of jurisdiction was urged, and neither the counsel for the plaintiff, nor the court, suggest- ed that there was any impropriety in going into the argument. These previous points being disposed of. I will consider the merits of the de- fendant's motion, which will depend upon the constitution of the United States, and the "act to establish the (143) judicial courts of the United States," passed 24th September, 1789, and commonly called the judiciao' act. By the 2d section of the 3d article of the constitu- 256 CONSULAR CASES tion, it is declared that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls, to all cases of admiralty and maritime jurisdiction, to con- troversies to which the United States shall be party, to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens or subjects." "In all cases affecting ambassadors, other public ministers, and consuls, and those in ■which a state shall be party, the supreme court shall have original jur- isdiction; in all the other cases before mentioned, the supreme court shall have ap- pellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the congress shall make. ' ' It is now sixteen years since the courts of the United States have been organized , and during that time the construction of the article relating to the judicial power, has been frequently considered. Many principles have been established, by which we are bound. In conformity to those principles we are to understand, that by the ex- pressions "the judicial power shall extend" to the cases enumerated in the section above mentioned, congress became invested with the right of assuming the exclusive jurisdiction for their courts; but in those of the said enumerated cases, where the state courts had juris- diction prior to the adoption of the constitution, and where the acts of congress have not vested an exclusive jurisdiction in their own courts, the courts of the several states retain a concurrent jurisdiction. Thus in cases of "admiralty and maritime jurisdiction," the courts of the United States have always exercised an exclusive jurisdiction, and in disputes between "citizens of different states" they have ex- ercised a jurisdiction concurrently with the state courts. And yet in both cases the judicial power of the courts of the United States is founded on the same expression in the constitution, that is to say, that the judicial power of the (144) United States shall extend etc. to those two cases among others that are enumerated in the same para- graph. It being then established that congress had a right to assume an exclusive jurisdiction "in all cases affecting consuls," let us see what provision they have made upon that subject by their laws. The 9th section of the judiciary act ascertains the jurisdiction of the district courts of the United States, (a) In the first parts of this section, jurisdiction is given to the (o) 1 U. S. Laws 53, 54. 257 CONSULAR CASES district courts in various matters both of a criminal and a civil nature, in some of which their jurisdiction is exclusive of the state courts, and in others concurrent with them. Towards the latter part of the section the district courts are vested with jurisdiction "exclusively of the courts of the several states, of all suits against consuls or vice consuls except for offences above the description aforesaid." The word suits includes those both of a civil and criminal nature ; and the exception of "offenses above the description aforesaid" refers to a de- scription in the first part of this section, viz. offences where no other punishment than whipping not exceeding thirty stripes, a tine not exceeding 100 dollars, or a term of imprisonment not exceeding six months, is to be inflicted. It is to be remarked that the jurisdiction of the district courts in suits against consuls or vice consuls is exclusive of the state courts, but not exclusive of the courts of the United States ; because the sec- ond section of the third article of the constitution had provided that "in all cases affecting ambassadors, other public ministers, and con- suls, the supreme court shall have original jurisdiction." Accord- ingly it is enacted by the thirteenth section of the judiciary act, that the supreme court of the United States shall have "original but not exclusive jurisdiction of all suits in which a consul or vice consul shall be a party." Then the ninth and thirteenth sections of the judiciary act are consistent with each other and with the constitution; and in suits against consuls and vice consuls the jurisdiction of the state courts is excluded. Nor are we to wonder at this provision. One considerable object of our federal constitution was to vest in the United States the administration of those affairs (145) by which we are related to foreign nations. Consuls, although not entitled to the privilege of ministers, often exercise very important functions; and it is remark- able that in the constitution they are mentioned in conjunction with "ambassadors and other public ministers;" and like them they enjoy the important privilege of commencing suits in the supreme court of the United States. It was wise therefore to protect them from suits in the state courts, although they are left at liberty to bring action against other persons in those courts, if they find it convenient and choose to do so. Upon the whole the court are of opinion, that, it appearing on the record that this suit is against the consul general of the king of Sweden, their jurisdiction is taken away by the ninth section of the judiciary act, and consequently the proceedings against the defendant must be quashed. Proceedings quashed. 258 CONSULAR CASES MARIE, THE, (1892, U. S.— Norway) 49 Fed. Eep. 286. Deady, District Court. [American who is a member of the crew of a Norwegian ship is subject to the jurisdiction of the Norwegian and Swedish consul in accordance with the 13th article of the treaty of July 4, 1827. — Ed.] MARINE WHARF v. PARSONS, (1897, U. S.) 26 S. E. 956. Jones, Supreme Court of South Carolina. Appeal from common pleas circuit court of Charleston county; W. C. Benet, judge. Action by the Marine Wharf & Storage Company against Charles Parsons, Jr. There was a decree on demurrer sustained to the answer, and defendant appeals. Affirmed. The decree of Mr. Justice Benet, and the grounds of appeal therefrom, are as follows : "Although this cause was heard before me upon a demurrer to the answer during the April term of the court of common pleas for Charleston county, quite a number of records in several old cases were referred to in the complaint and answer and demurrer as if attached, and made a part thereof, and therefore the facts before the court were really quite voluminous. This feature of the case, which necessarily compels a somewhat long statement of facts, together with the number of legal questions raised and discussed under the demurrer, renders any other explanation of the length of this decree unnecessary, for the simple reason that no proper understanding, either of the facts or the law involved, would be practicable without quite a long refer- ence to and discussion of the same. "On July 17, 1895, the defendant made a bond and mortgage to the plaintiff for a portion of the purchase money of some property in Charleston, including lot 55, specially referred to hereafter. From the recitals in the bond it appears that the defendant had purchased and taken a deed of conveyance on that day from the plaintiff of the property, including lot 55, but had made some objection to the title in one particular, which objection was not admitted as being a valid one by the seller, the Marine Wharf and Storage Company. In order to complete the transaction, however, it was agreed that the convey- ance should be made, and that the bond should be so conditioned as to protect the ' purchaser for a reasonable time, and in a reasonable way, 259 CONSULAR CASES from damage on account of the alleged defect aforesaid.' The con- dition of the bond accordingly was that Parsons should pay the Marine "Wharf $8,000. "svith interest, five years from date, 'or as soon before that time as the title to said lot 55 shall by a court of competent jurisdiction be held or made good so far as the alleged defect alone is concerned.' This defect, as appears from the pleadings, is that the proof of service upon certain minor defendants in a previous suit of Holmes against Zanoguera. in 1875, which formed one of the old links (957) in the chain of title, had been made by the affidavit of the party serving the minors, which affidavit was made before a con- sular agent of the United States, in the island of Majorca, kingdom of Spain, who signed and sealed the affidavit in his official capacity; the objection being that the affidavit was defective because not taken before a proper officer, qualified by the laws of South Carolina to take an affidavit. It will thus appear that the intention of the parties at the time of the execution of this bond, in 1895, was to allow an opportimity for a court of competent jurisdiction to declare the title to have been 'good' under the old proceedings, or else to make it good by new proceedings. This intention is clearly set out in the bond and in the complaint in this cause. The plaintiff, the Marine "Wharf, immediately, during the month of July, 1895, filed a proceeding en- titled ' Marine "Wharf and Storage Company against Catalina Zano- guera et al.,' in the court of common pleas in Charleston county, in which it referred to the former suit of Holmes against Zanoguera, and the alleged irregularity in the proof of service, and asked that the court would hold and declare the old proceedings and proof of service to have been regular and valid, and no cloud on the title of this plaintiff, or else confirm them. To this suit were made parties defendant all of the heirs at law of Zanoguera, who had been defend- ants in the former proceeding of Holmes against Zanoguera, and the record shows that they were all duly and regularly served by publi- cation and mailing of the summons and complaint. No demurrers or answers were filed or served. The suit came duly on to trial and judgment, and on September 7, 1895, the Hon. 0. "W. Buchanan, pre- siding judge, .signed a decree in which he held that the former pro- ceedings, including the proof of service in Holmes against Zanoguera, had been valid and binding; and he also further confirmed and ratified them, and vested and validated in the Marine Wharf and Storage Company the title to lot 55. From this decree no appeal was taken, and it therefore stands of force as a judgment of this court. All of this will be found upon reference to the proceedings. The Marine 'VV^'harf and Storage Company also spared no pains in its endeavor to satisfy Mr. Parsons, and also to notify the Zanoguera people of 260 CONSULAR CASES the entire matter. Immediately, in July, 1895, it had prepared, under the seal and certificate of clerk of court, a copy of the original order for publication, and order for service, and original proof of service, in the old case of Holmes against Zanoguera. These were sent to Spain, and at the foot of these papers was obtained an affi- davit from all of the heirs of Zanoguera (then in the Spanish island of Majorca) to the effect that all of the parties had been served in the former case, and that such service had been made as stated in the previous affidavit of Miguel Sbert, the party who served them in 1875. Miguel Sbert, it appeared from the allegations in the com- plaint, had died, and hence his affidavit could not be obtained; but the affidavit of the parties themselves was fortunately made before Ernesto Canut, the very same consular agent who had taken the original affidavit of Miguel Sbert in 1875. This affidavit of 1895 was filed nunc pro tunc, in the records of this court, in the old case of Holmes v. Zanoguera, and is also referred to in these present proceed- ings, and in the recent case of the Marine Wharf and Storage Com- pany against Zanoguera and others, brought for the purpose of having the former proceedings declared valid and binding. Having done this, the plaintiff conceived that the title had been both 'held good' and 'made good' by a court of competent jurisdiction, and that the bond was due by its terms. It therefore filed its summons and com- plaint in the present cause, alleging these facts, and asked that it should have payment from Mr, Parsons of his obligation. To this complaint the defendant filed an answer, and the plaintiff demurred to the answer. The hearing came up on this demurrer. "As already stated, in addition to the record in the present case, several other records were made parts of the pleadings and pro- duced before the court ; and, in order to emphasize the course of the proceedings, it is only proper to list these different papers which were so referred to and used in the argument, and which really are a part of the record in this case. They are as follows: (l)The present foreclosure suit of Marine Wharf and Storage Company against Charles Parsons, J'r, (2) The suit of Marine Wharf and Storage Company against Zanoguera et al., brought in 1895, in order to have the title held or made good, (3) The affidavit of 1895, admitting the fact of the service in 1875, which affidavit is filed with the old suit of 1875. (4) The original proceedings of 1875 brought by Holmes, ad- ministrator, against Zanoguera et al., for the purpose of settling the estate of Zanoguera, These latter proceedings will be more fully commented on in the discussion as to their validity, (5) Deed from Hunter, per Master Miles, to Marine Wharf and Storage Company, made in 1890, In connection with this, it may be well also to state 261 CONSULAR CASES that the property which Parsons bought from the Marine Wharf con- sisted of two lots, 55 and 56, concerning the latter of which (namely, 56) there is no question. Lots 55 and 56 both had been bought by the Marine "Wliarf and Storage Company from the estate of Hunter, imdcr the deed from Miles, master, in 1890. Hunter had bought lot 56 from some third party, and had purchased lot 55 under the proceedings in the suit of Holmes, administrator, against Zanoguera, in 1875. It is well to note that, at the time of the giving of the bond and mortgage, the sole objection which Mr. (958) Parsons urged against the title to lot 55 w-as the fact that although service had been made upon the Zanoguera minors in 1875, and a proof of such ser- vice had been filed in the form of an affidavit, this affidavit had been taken before a United States consular agent, and at that time, namely, in 1875, a United States consular agent was not authorized in Ma- jorca, Spain, to take an affidavit under the laws of the state of South Carolina. This was the only question raised at that time with re- gard to the validity of the title, and on it the bond is conditioned, and it is all that could be or was discussed in this proceeding. "So much, then, for the leading facts of the present case. It is now proper to examine the facts in the record of the old suit of Holmes V. Zanoguera, in 1875. At that time, one S. Zanoguera, then a resi- dent of Charleston, S. C, died, leaving a widow, Mrs. Catalina Zano- guera, and certain infant children, namely, Catalina, Elvira, Mary, Antonio, Madelina, IMiguel, and Juanna Maria. Mr. F. P. Salas was appointed by the probate court of Charleston county general guard- ian of the children, and Mr. George S. Holmes was made the adminis- trator of Sebastian Zanoguera 's estate. This was done on the peti- tion of the minors, and also of the widow. It became necessary to sell the property of the deceased, and the widow and the admin- istrator and the guardian went into court, asking that the property be sold, all the debts of the deceased paid, and the balance turned over to the widow and children. Inasmuch as the minors seemed, be- fore the commencement of the suit, to have removed to the island of Majorca, Spain, and to have resided outside of this state, it was neces- sary to serve them by the service of the summons and complaint upon the mother of the minors, and upon the general guardian, and upon the minors themselves. All this was done, Mrs. Zanoguera admitted that she and the r-hildron had been served, and the general guardian also acknowledged these facts, and asked that a guardian ad litem be appointed for the minors, to protect their interests. This was done, and the court proceeded and settled up the estate for all the parties in intere.st. The record shows this admission of service on the part of Mrs. Zanoguera, sworn to before a United States consular agent 262 CONSULAR CASES at Palraa, island of Majorca, and also the affidavit of the general guardian of the children, Mr. Salas, to the same effect. Under the order of court, a person named Miguel Sbert was directed to make the service of the summons and complaint upon the minors. Miguel Sbert did this, and he forthwith made an affidavit to that effect, on the 6th of October, 1875, before Ernesto Canut, who at that time was United States consular agent at Palma; and the latter certified to the same under his official hand and seal, Miguel Sbert signing the affidavit before him. The summons was also published in the newspaper, but it does not appear that the order directed deposit in the post office, or that such deposit was made. The cause went on to trial and de- cree, and the property, being sold, did not bring enough to pay even the mortgages on it, the mortgagees having been made parties to the suit. "A complete summary of the pleadings in this old case is also of use, and will now be given : The defendants, in addition to the Zano- guera heirs, included H. M. Haig, a lien creditor, having a mortgage on the property in question, and also Ravenel, Holmes & Co. and Wm. A. Rook, made parties to represent general creditors. The complaint states that Zanoguera died intestate, February 18, 1875, leaving a wife and children, and that George S. Holmes had been appointed administrator of his estate , at the request of all parties in interest; that he owTied, among other real estate, some water lots in Charles- ton, including lot 55 in a plat of the Laurens marshes (this lot 55 being the property under consideration in the present suit) ; that Zanoguera was largely indebted; that Haig had a mortgage on the real estate for $6,500, and that there were other debts amounting to about $25,000; that the real estate consisted, among other things, of a shipyard and machinery which was liable to deterioration, unless kept in good repair and in constant use, and that, Mrs. Zanoguera and all parties desired, as part owners in the property, to have Mr. Holmes, as agent and as administrator, look after the estate, and wind up the business; that the probate court had appointed Mr. F. P. Salas, the Spanish consul in Charleston, general guardian of all the children ; that Ravenel, Holmes & Company and Rook were the largest simple contract creditors. The complaint then prays the temporary carrying on of the business, and a sale of the property as soon as possible. An order of publication was taken, and then the service was made in Majorca, and proved by the affidavit of Miguel Sbert; and, in addi- tion to this, Mrs. Zanoguera made an affidavit and aclmowledgment before the consular agent that the paper had been served on her children, the minors, and that it had also been served upon her after it had been served on them. After this, Mr. Salas, as the general 263 CONSULAR CASES ^ardian of the children, under the laws of South Carolina, came in, and imder oath alleged to the court that the children had been legally served, and that it was necessary to have a guardian ad litem appointed for them; and the court then and there, in response to these allegations of Mr. Salas, appointed him their guardian ad litem. The mother of the infants filed her answer, admitting all the facts, and also gave Mr, W. P. Hall, a merchant of Charleston, power to act for her. All the other defendants admitted the complaint ex- cept the guardian ad litem, and he filed the usual answer submitting the rights of the infants to the court. The matter was referred to the master, and Haig proved his mortgage debt, and other claims were also proved to the amount of (959) over $9,000, making the total claims proved something like $16,000. The decree was made, and the prop- erty was sold, the proceeds not being enough to pay the mortgage debt to Haig. One sixth of the unincumbered real estate was paid over to Mr. Hall, as the attorney of Mrs. Zanoguera the widow, for her dower. The decree of the court, which ordered the sale of the property, re- ferred to all of the proceedings, took notice of all the facts, and ordered the sale. The sale was made as already stated, and the pro- ceeds went to the payment of the debts of the ancestor, Zanoguera, It might be mentioned, also, that the general guardian of the infants, Mr. Salas, was served personally, and personally made, as already stated, under oath, his application to be appointed guardian ad litem, alleging that the infants had been legally served with the summons and complaint. It should also be noted the record shows that Maria (who it is alleged in the answer in the present case, subsequently grew up, married, and died, leaving a husband and child, and con- cerning whose share alone the discussion really is made) was then nine years old, so that, if she had lived, her age would be to-day about thirty years. The record in this old suit in 1875 speaks for itself, and it shows a carefully conducted ease, with all the parties appar- ently before the court, including the minors, who were represented by their general guardian, who was appointed guardian ad litem; their mother also being before the court. "These are the main features of the original suit, and all of these matters happened nearly twenty-one years ago. Having thus fully set out the facts of the case as the records disclose them, it will now be practicable to deal with the legal positions. "The answer sets out the sole alleged defect, namely, the proof of service by Sbert before a consular agent in 1875, and practically admits that the affidavit obtained on July 30, 1895, cured the same, except as to Maria, Antonio, and Miguel, who did not sign it, and Juanna, who, it is alleged, was under twenty-one when she attached 264 CONSULAR CASES her signature. All question as to the other heirs, then, is at once elim- inated. So far as Juanna is concerned, the mere fact that she was not of full age when she signed the affidavit, in July, 1895, would not seem to oifer any difficulty, for several reasons: The records show she was then over twenty years old, and certainly her affidavit would estop her from ever afterwards disputing the truth of the facts sworn to therein. Besides this, she was subsequently bound by the decree of September 7, 1895, along with the others, as will be shown here- after ; for, it not being alleged in the answer that she was not of full age when this decree was taken, she is so presumed to have been. And, even, if she was a minor when the decree was taken, she was a party to the suit; and the decree against her, while possibly voidable as to her in a direct proceeding, is valid and binding as to third parties. She would be therefore barred and bound. 12 Am. & Eng. Enc. Law, p. 88; 1 Black, J'udgm. § 193; 1 Freem. Judgm. § 151. As to the other three parties , it is also quite apparent that the new suit, in 1895, barred and bound their interests, if they were then of full age, and before the court. Of these three, Miguel and Antonio are easily next disposed of. Nothing at all is alleged of Miguel in the answer, and he being of full age, and duly made a party to the new proceed- ing, the decree of the court, in 1895, certainly was valid and binding as to him. On the death of Antonio, intestate, his interest descended to his mother and brothers and sisters, and all of them were before the court in 1895, and thus were barred and bound by the proceed- ings then taken. Maria alone is now left, and as to her the allegation of the answer is that at the time the proceeding to declare and con- firm the title was brought, in 1895, she was dead, 'having died in April, 1890, leaving as her heirs, her husband and a child, now about six years old, and that these heirs were not parties to the said pro- ceedings.' Thus, about Maria and her share only is there any question really raised in the answer, or worthy of being considered; and with reference to her, therefore, will the discussion now proceed. What is here said as to her, however, is sometimes also applicable to the other parties referred to in the answer, should any further dis- cussion seem necessary as to them. "The plaintiff, on argument, took several positions, which all then seemed, and still seem, sound. In the first place, I cannot bring myself to do otherwise than hold that the oath as to proof of service by Miguel Sbert before the United States consular agent, in 1875, was originally a valid affidavit. There is no direct case in point in South Carolina ; but an examination of the statutes shuts me up to this conclusion, the alternative being a construction which would make the Code provision a nulity, and practically repeal it. Code, § 265 CONSULAR CASES 161 (act 1S70; 14 St. at Large, p. 458) gives the alternative of per- sonal service outside of the state, instead of publication, and then pro\ides that service may be proved 'if made by any other person' than the sheriff by 'his affidavit thereof.' Nothing is said as to the character of the officer before whom this affidavit is to be made. The sole question, therefore, is whether the affidavit of Miguel Sbert was made in the island of Majorca, Spain, before one authorized legally there to administer an oath. In other words, was it then and there an affidavit ? There can be no doubt of this. Under the laws of the United States in force in 1875, every consular agent is so empower- ed, and his acts are to be given the same force and effect as those of a 'notary public or any other person so authorized or competent there- to in the United States.' Rev, (960) St. U. S. 1878, p. 311. 'An affidavit is a formal, written or printed, voluntary, ex parte statement, sworn or affirmed to before an officer authorized to take it, to be used in legal proceedings.' And it must 'be sworn to before a competent person, — that is, before a particular officer or one of a particular class, where a statute or rule of court requires it ; otherwise, before any one authorized to administer an oath.' 1 Am. & Eng. Enc. Law, 307, 308, 178. Our statute and rule of court in 1875 being silent as to the character of the officer before whom the affidavit was to be made, ' any one authorized to administer an oath' could take and certify the same, A number of cases from courts of recognized authority have been cited supporting this view, and among them the following are di- rectly in point : Tucker v. Ladd, 4 Cow. 47 ; Wood v. Bank, 9 Cow. 194, 200 ; People v. Tioga Common Pleas, 7 Wend. 516 ; Bank v. Cow- den, 3 Hill, 461. The very question as to affidavits was made and so ruled upon in these cases. The case of Woolfolk v. Manufacturing Co., 22 S. C. 337, relied on by defendant, not only does not conflict with, but really is in line with, the decisions above referred to, for the reason that the statute in that case required that, before a deed should be recorded, it must be proved by the oath of a subscribing witness; the court holding that the provisions of the law with regard to an affi- davit before a magistrate related only to a deed executed within the state, and that the act of 1788 had specially provided for the proof of a deed executed out of the state, which should be by a dcdimus; and that, therefore, there being a special provision of the statute, no other mode could be made use of. The whole thing was statutory, and the court so stated. In the case of Armstrong v. Austin, how- ever, decided by Chief Justice Mclver, and reported in 22 S. E. 767, the court refers to this very fact. In that case the witness making the affidavit did not sign the same, and it was urged that the affidavit was bad. The case of Woolfolk v. Manufacturing Co. was evidently 266 CONSULAR CASES pressed upon the court, but the court replied that in that case there were the express terms of the statute; but there were no express terms of the statute as to the signing of the affidavit, but it was pro- vided merely that the affidavit should be made by a subscribing wit- ness, and they therefore held the affidavit to be sufficient. These two cases point to the very conclusion reached in the present decree, and are indications of the intention of the court to give the performance of acts under statutes a reasonable and liberal interpretation, unless the plain terms of the statute demand otherwise. In the case now at bar the statute uses the word 'affidavit,' and I am bound to avoid a construction which would practically contradict this word, and annul the statute so far as the relief of personal service outside of the state was concerned. There was no officer in Spain in 1875 qualified by the laws of South. Carolina to administer an oath, for a dedimus was di- rected to prove a deed alone. The statute clearly intended to allow personal service outside the state in foreign countries, and provided that it could be proved by the 'affidavit of the persons making it.' I cannot, in the absence of a decision in this state so holding, and in the face of decisions to the contrary elsewhere, construe away these provisions of the statute, and the relief they afford, and the rights vested thereunder. I hold, therefore, that the proof of service in 1875 was legal and valid. * ' It would seem almost useless to repeat and adopt the other posi- tions of the plaintiff, but as they all are, in my opinion, equally con- clusive and convincing, it becomes my duty to refer to them, although briefly. ''The second position taken, and in which I concur, is that even if the original affidavit was defective, because not taken before an officer qualified by the laws of South Carolina to administer an oath, then this was a mere irregularity, which cannot be attacked collater- ally, and after such a length of time. There is a presumption in favor of the regularity of judicial proceedings, and this presumption be- comes conclusive after lapse of time, and without objection being made. And there is also a great distinction between defective service and total want of service. In one case the judgment is void, while in the case of defective service the judgment is valid until set aside in direct proceedings, and is proof against collateral attack. 22 Am. & Eng. Enc. Law, 161. Only a jurisdictional defect, appearing on the record, can be taken advantage of in a collateral proceeding. Darby v. Shannon, 19 S. C. 526; Hahn v. Kelly, 94 Am. Dec. 764. From the number of authorities to this effect in our state, the citation of only a few of them will be necessary to support this conclusion: Tederall ir, Pouknight, 25 S. C. 275, 279, 282; Genobles v. West, 23 S. C. 154, 267 CONSULAR CASES 167 ; Lyles v. Haskell, 35 S. C. 391, 14 S. E. 829. The latter case is particularly in point, inasmuch as in it the court stated that the pur- chaser at a subsequent judicial sale could not attack for irregularity some prior proceeding affecting the title to the property purchased; and the court held that, notwithstanding a good deal of irregularity in the former proceedings, the purchaser, under the new proceeding, was not in a position to question it. The language of the court is instructive on this point, and is as follows: 'There was an order of sale, which it is the settled policy of the state to maintain if it can be done without violating principle or doing injustice. There was a judgment rendered by a competent court having jurisdiction of the subject-matter, and that presumes that all things were rightly done. Objections to mere irregularity in the proceedings will not be heard to impeach a judgment. Nothing, in (961) fact, will be allowed col- laterally to invalidate a title acquired under it, but jurisdictional de- fects which appear in the record.' This being the case, the question is whether the alleged defect with regard to the proof of service by Sbert, in 1875, was jurisdictional, or a mere irregularity. I find from cases cited that almost everywhere it has been held that an alleged defect of this sort, even if it be a defect at all, is treated as a mere ir- regularity, which can be amended at any time. See cases of Assur- ance Co. V. Everhart's Adm'r (Va.) 14 S. E. 836; Turner v. Holden, 13 S. E. 731, 109 N. C. 182; Shufeldt v. Barlass (Neb.) 51 N. W. 134, cited at page 5594, Am. Dig. 1892; Railroad Co. v. Ashby's Trustees (Va.) 9 S. E. 1003; Tyler v. Jewell (Ky.) 11 S. W. 25, cited at page 4108, Am. Dig. 1889. In the case of Forbes v. McHaffie (Neb.) 49 N. W. 721, it was held that although, under the Nebraska statute, a special deputy appointed to serve a summons was required to make his return under oath, jurisdiction was obtained if no objection was made to the return on that ground, although the return was not under oath. In the case of Hill v. Gordon, 45 Fed. 276, where there was personal service on the defendant, but the return was in the name of the special deputy marshal, instead of the marshal, as required by the statute, this was decided to be a mere irregularity, to which an objection could not be raised by strangers to the judgment. It there appeared that the original suit was brought at common law in 1869, while the new suit, between different parties, was brought in 1890. The language of the court is peculiarly appropriate to the present case, and is in the following words: 'This court will not, at this late day, say that the court who tried the cause was so remiss in its duty as to allow judgment to be entered in a cause in which the court had no jurisdiction. * * * It is contended by the complainants that the court had no jurisdiction of the person of the defendant, John T. 268 CONSULAR CASES Matthews, because the return upon the original writ was made in the name of a special deputy United States marshal, and not in the name of the marshal. There was personal service upon the defendant, and the making of the return in the name of the deputy was, at the most, only an irregularity, which the defendant above could take advantage of in the original proceedings, and cannot be raised by strangers to the judgment. I am of opinion that the court had jurisdiction, both of the subject-matter and the person of the defendant.' These cases seem to be overwhelming, and in the language of Lyles v. Haskell, 35 S. C. 391, 14 S. E. 829, it is evident that 'there was no surprise to the infants. They had their day in court. They derived full ben- efit from the proceeding, and they are not here making complaint.' The proof of original service in the old suit, therefore, even if defec- tive, was only such an irregularity as cannot be questioned in this present proceeding, twenty-one years afterwards. "But supposing, for the purpose of argument, that the defect was not a mere irregularity, then the next question would be whether or not the new proceedings, brought in 1895, cured the defect, and are binding in the present suit on the purchaser. I am of opinion that such is the case. It will be remembered that in 1895 new proceed- ings were brought against all the former defendants, and that, after due service by publication, judgment was taken against them, the court holding that the original service and proceedings had been valid, and also further confirming and validating the title. We have already seen that the record in one suit cannot be questioned collater- ally in another suit, by third parties, save for jurisdictional defects appearing on the face of the proceedings ; and the further rule is that facts alleged and confirmed by judgment in one suit cannot be rebutted by parol testimony, at the hands of third parties, in another suit. And the courts hold that if it appears and the record shows in a former suit that all of the parties were of full age, and judgment was duly had, third parties in a collateral subsequent suit cannot set up or prove the allegation that some of these parties in the former suit were minors. Unless the record in the first proceeding shows the contrary, it must be judicially held that the court had acquired the necessary jurisdiction, and had before it parties against whom it could pro- nounce its judgment. Hahn v. Kelly, 94 Am. Dec. 764. Unless the contrary appeared, therefore, on the record of 1895, the fact of all of the defendants having been of full age, and of all of them having been alive, is presumed, as matter of law; and the judgment of the court thereon cannot be contradicted by parol testimony in a collateral pro- ceeding, nor can allegations to this effect be permitted. Tederall v. Bou knight, 25 S. C. 275. In that case it appeared that there had been 269 CONSULAR CASES in a former proceeding a partition in the probate court, regular on its face, in which, so far as the record went, all of the parties were of full age. and had been served. In the subsequent proceeding, brought some years after, the court held, at page 280, that the defendants could not be permitted to show that one of the parties to the former suit in the probate court was then a minor, and not properly before the court ; laying dovm the doctrine that the judgment in the former suit, regular on its face, must be taken as an absolute verity, and be- yond the reach of contradiction or assault in a collateral manner. In the proceedings in 1895. the record to formal judgment and decree is regular, and is presumed to show that all the parties were before the court, and that all were alive, and that all were of full age. The present proceeding, which is a collateral one, cannot impeach the former record by parol testimo-(962)ny, nor can such facts be alleged, for that cannot be alleged which should not be permitted to be proved. I cannot, therefore, in this subsequent proceeding between third parties, permit the defendant collaterally to impeach the record of the confirmation suit of 1895. by alleging, and therefore obtaining, as it were, permission to prove, these facts as to minority and death, which do not appear in. and would contradict, the former record. The original parties, in a direct proceeding, might be suffered to state and prove them; but this dangerous privilege should never be accorded to strangers in a collateral suit. I feel, then, constrained to ignore these facts, and strike them out of the answer. "Lastly, I regard the bond as due, by its own terms. Further ruling on the part of the court would seem almost superfluous. But I am constrained to say that I am not by any means clear that the defendant had, under the terms of his bond, the slightest right to in- terpose any defenses whatsoever, although I have, it is true, listened to and discussed them all. The bond of the defendant states that it will be paid as soon as any court of 'competent jurisdiction' shall either hold the original title to have been good, or make it good so far as the old alleged defect was concerned. Now, in 1895 a suit was brought against the parties in the old suit, in the court of common pleas for Charleston county, — this very court, a court of competent jurisdiction ; and, after proper and regular proceedings, the court, by its order, adjudged and decreed that the former proceedings had been valid and regular. In other words, it 'held' the former title to have been 'good.' It is shown that third parties cannot question this col- laterally; but, in addition to this, defendant did not even stand in the position of an ordinary third party, for he has in his bond express- ly agreed that if any court of competent jurisdiction were to hold the title good, under the original proceeding, he would pay his bond. A 270 CONSULAR CASES court of competent jurisdiction — this very court — has done this, and the decree stands of record here; and therefore the bond is payable. It is evident that the court which passed the decree in 1895 was a court of competent jurisdiction, and its judgment by default concluded everything raised by the proceedings. Van Fleet, Coll. Attack, § 17 ; 21 Am. & Eng. Enc. Law, 268, 269. "It is not here contended that, so far as the confirmation and making of the title good in 1895 is concerned, the judgment of the court could bind parties not before it; but the question as to whether the title had formerly been good was also raised and passed upon, and decision was made on that very point, and it was made by a court of competent jurisdiction. It is in all other proceedings, and as to everybody except heirs who were not parties to the former suit, ab- solutely conclusive ; and even as to these heirs, while they might ques- tion the correctness of this conclusion of the court in some subsequent proceeding, still, if the court reversed the decision made at that time, it would save the intervening rights of third parties. It may be urged by the other side that, while a court of competent jurisdiction has held this title to have been valid, the su- preme court might not agree with it. This, however, I cannot regard. In making their bond, they should then have stated that they would pay it when a court of competent jurisdiction and of last resort had declared the title to have been formerly valid. They did not see fit to do this, and a court of competent jurisdiction having passed on the very question set out in the bond, and having declared the former title to have been valid, the bond is due by its own terms, and its payment cannot be resisted by the defendant. "For all these reasons, I am thus unable to apprehend any de- fense in the answer, and must therefore grant the demurrer, and strike the answer out, giving the necessary default judgment in fore- closure. It is therefore ordered, adjudged, and decreed that the an- swer herein be stricken out, as not containing or stating facts suf- ficient to constitute a defense. Further ordered, adjudged, and de- creed that plaintiff do have judgment by default against the defendant for the amount of the bond, eight thousand dollars, with interest at the rate of six per cent, per annum from the 17th day of July, 1895, and the costs of this proceeding. Further ordered, adjudged, and de- creed that the defendant, and all those claiming by, through, or under him, be barred of all equity of redemption or other interests in the said mortgaged premises; and that the said mortgaged premises be sold at public auction, by 6. H. Sass, Esq., one of the masters of this court, after due advertisement, according to law, such sale to take place before the post office at Charleston, S. C, on Tuesday, the 3d 271 CONSULAR CASES day of Au^st. 1896, at eleven o'clock a. m. ; the terms of such sale to be one-third cash, the balance to be secured by the bond of the pur- chaser and a mortgage of the premises, such bond to be payable one and two years from date, and to bear interest from the day of sale, at the rate of seven per cent, per annum, payable annually; the pur- chaser also to insure the property, and assign the same as further security for his bond, and also to have the option of paying cash for the premises ; the purchaser to pay the master for papers, and also to pay all unpaid state and city taxes payable during and after the year 1896. It is further ordered, adjudged, and decreed that the said master shall, after paying all the costs and expenses of these pro- ceedings, and of the sale ordered hereunder, pay and discharge in full, with all interest thereon, the bond held by the plaintiff, and that he then do pay over the balance of the purchase money to the defendant herein. "The following is a description of the (963) premises herein or- dered sold : All those two wharf properties in the city of Charleston formerly known as Hunter's North and South Wharves, on the east side of Concord street, being lots known as lots Nos. 55 and 56 in a plan of Laurens Marshes, made by E. B. "White, surveyor, recorded R. M. CO., Charleston county, in Plat Book A, page 156 ; measuring on the north line 525 feet, on the south line 492 feet, on the east line together 328 feet, and on the west line together 248 feet, more or less; butting north on lot 57, and south on lot 54, in said plat, west on Con- cord street, and east on the channel of Cooper river, — the said prop- erty being the same that was conveyed to the Marine Wharf and Stor- age Company by Ch, Richardson Miles, master, by deed dated 31st of July, 1890, and of record in the R. M. C. 0. for Charleston county, in Book B, 21, page 66, and having been since that time known as Marine Wharf, and being fully delineated and set out in a plat of the same made on September 7th, 1892, by Louis J. Barbot, city engi- neer, and attached to a conveyance from the said Marine Wharf and Storage Company to Charles Parsons, Jr." From this decree the defendant appealed as follows: "Please take notice that the defendant intends to appeal from the decretal order of his honor. Judge Benet, made in this cause, and dated 12th June, 1896, and also that the defendant excepts to said de- cision on the following grounds: "First, Because his honor erred in finding that to the suit of plaintiff against Catalina Zanoguera et al., commenced in July, 1895, that all the heirs of Zanoguera were made parties defendant, and that the record shows that they were all duly and regularly served by pub- lication and mailing of the summons and complaint, — but, on the con- 272 CONSULAR CASES trary, should have found that the follow^ng heirs of said Zanoguera were not duly made parties, and were not duly served, viz. : Mary and Antonio, who were then deceased, and Joanna, who was a minor, and for whom no guardian ad litem was appointed. "Second, Because his honor erred in finding that in July, 1895, there was obtained an affidavit from all of the heirs of Zanoguera, then in the Spanish island of Majorca, to the effect that all of the parties had been served in the former cause, but his honor should have found that such affidavit was made by five out of the eight heirs; that one of these (Joanna) was under age; and that, of the rest, Mary and Antonio were dead ; and that they and Miguel did not sign the affidavit. "Third, That his honor erred in finding with regard to the case of Holmes vs. Zanoguera, in 1875, that the widow and the adminis- trator and the guardian went into court asking that the property be sold, but should have found that the administrator was the sole plain- tiff, and all others were named as defendants. * ' Fourth. That his honor erred in finding with regard to the said case of Holmes vs. Zanoguera that it being necessary to serve the mi- nors by service of the summons and complaint upon the mother of the min ors, and upon the general guardian, and upon the minors them- selves, that ' all this was done ' but, on the contrary, should have found that there was no proof of the service of the summons upon the minors, as the alleged affidavit of Miguel Sbert before the consular agent was not the proof required or allowed by the laws of this state ; also, that his honor erred in holding elsewhere in the decree that such service was proved by the affidavit of Miguel Sbert. "Fifth. Because his honor erred in holding that the record in Holmes vs. Zanoguera, the suit of 1875, shows a case with all the parties apparently before the court, including the minors, but, on the ■wontrary, he should have found that it appears on the face of the record of said suit that there is no legal proof of the service of the summons on the said minors, the only proof thereof being the said alleged affidavit of M. Sbert, taken before a U. S. consular agent, and not according to the laws of this state. "Sixth. Because his honor erred in holding that the answer herein practically admits that the affidavit of July, 1895, cured the de- fects in the title as to the adults who signed the same, and that all questions as to them are eliminated, but, on the contrary, should have held that an affidavit so taken after judgment in the cause of Holmes vs. Zanoguera, in 1875, was not sufficient to amount to a proof of ser- vice, even with regard to the adults who signed the same. "Seventh. That his honor erred in holding that the fact that 273 CONSULAR CASES Joanna was not of age when she signed the affidavit, in 1895, would not seem to offer any difficulty, but, on the contrary, should have held that such affidavit of a minor would not be equivalent to actual legal service on the minor to the suit in 1875, nor was it any proof thereof. " Eighth. That his honor erred in holding that Joanna was bound by the decree of 1895, but should have found that she was not shown to be then of full age, and that no guardian ad litem had been ap- pointed for her. "Ninth. That his honor erred in holding that, if Joanna was a minor when the decree of 1895 was taken, she was a party to the suit, and the decree against her, while possibly voidable as to her in a di- rect proceeding, is valid and binding as to third parties (she would be therefore barred and bound), but, on the contrary, should have held that it is the duty of a purchaser to see that all proper persons are properly made parties to a suit affecting the title which he purchases, and that he is not bound imless all proper persons are properly made parties; and Joanna was not properly made a party in the cause of 1895, because she was (964) under age, and no guardian ad litem was appointed for her. "Tenth. That his honor erred in holding that the suit of 1895 boimd the interests of the parties if they were then of full age and before the court, and so bound the interest of Miguel Zanoguera, but should have held that the said suit presented no case stating a cause of action as to which the court had any jurisdiction ; i. e. that the sub- ject-matter of the suit presented no cause of action, and so neither Miguel nor any of the other parties were bound thereby, "Eleventh. That his honor erred in holding that on the death of Antonio, intestate, his interest descended to his mother and brother and sisters, and all of them were before the court in 1895, and thus were barred and bound by the proceedings then taken, but should have held that there was no proof that Antonio was intestate, nor of the time of his death ; that, when he died, he was not bound by the decree in the suit of 1875; that if he was interstate when he died, that then what of his interest went to his mother and brother and sisters was interests in them accruing to them after the decree in Holmes vs. Zanoguera, and could not be affected by the decree in that suit, nor by that of the suit of 1895, but were independent titles in them, which never have passed to the defendant; that, if he died after Mary, then the infant child of Mary is one of his heirs, and that child's title never passed to the defendant herein; and, if he died before her, that child still has the part of his interest that it takes from its mother. "Twelfth. That his honor erred in holding, in considering the 274 CONSULAR CASES case as to Maria and her share, that, the oath as to proof of service by M. Sbert before the U. S. consular agent, in 1875, was originally a valid affidavit, but should have held that it was not an affidavit nor proof of service required or allowed by the laws of this state, and that such oath was not an affidavit recognized by our law. "Thirteenth. That his honor erred in holding that the proof of service in 1875 was legal and valid, but should have found the contrary. "Fourteenth. That his honor erred in holding that, even if the original affidavit of service of 1875 was defective, then this was a mere irregularity, which cannot be attacked collaterally, and after such a length of time, but should have held that it is the duty of a purchaser taking title coming imder a sale by the court to see that the court has jurisdiction of the subject-matter and of the parties, and that, if the court does not have jurisdiction in either respect, he is not bound to take such a title, and he is entitled to have it shown that the court has jurisdiction; and, further, that, with regard to the suit of 1875, the want of jurisdiction of the minors was apparent on the face of the record of that suit ; and that there can be no presumption in favor of the regularity of the decree in that suit, when the record itself dis- closes the defect. "Fifteenth. That his honor erred in holding that, even if the defect of 1875 was not a mere irregularity, the suit of 1895 cured the defect, and is binding in the present suit on the purchaser, but should have held that the suit of 1895 had and could have no effect in curing any defect in the suit of 1875, because of the named parties thereto, at least two, viz. Antonio and Mary, had previously died, and Mary had died in April, 1890, leaving a young infant child, not named in the complaint, and so could not have been served by publication or in any other way, and that to such proceedings this defendant was not a party, and that the judgment in that cause was not the judgment of a court of competent jurisdiction, because as to, at least, the said two named parties, the court had no jurisdiction, nor did it undertake to exercise any jurisdiction over the interests which descended to their heirs ; and, further, his honor should have held that in this present suit it was a good defense to the bond to show that the title had not been held or made good by a court of competent jurisdiction, and that, in maintaining that defense, it was competent for him to show that for any reason the court had no jurisdiction of the cause or parties, or any of them, in the suit of 1895, — and that, whether the want of jurisdic- tion appeared on the face of the record or not. ' ' Sixteenth. That his honor erred in holding that a court of com- petent jurisdiction has decreed the title to be good by the decree of 275 CONSULAR CASES 1895, but should have held that it had no jurisdiction as to said two heirs then deceased; and such want of jurisdiction can be set up by defendant in this case under the terms of the bond sued on, and whether or not such want of jurisdiction appears on the face of the record or not. ' ' Seventeenth. That his honor erred in ordering the answer to be stricken out, and in giving judgment for plaintiff, but should have overruled the demurrer to the answer, and should have awarded judg- ment in favor of the defendant. "Eighteenth. That his honor erred in holding that all of the heirs of Zanoguera who had been defendants in the former proceeding of Holmes vs. Zanoguera were all duly and regularly served by publica- tion and mailing of the summons and complaint in the suit instituted by the Marine AVharf and Storage Company in 1895, it being al- leged by the answer and admitted by the demurrer that Maria, one of the heirs of Zanoguera, and a party to the original proceedings, had died in April, 1890, leaving, surviving her, a husband and child, who were not parties to the second suit. "Nineteenth. That his honor erred in finding that the admission made by Joanna, a minor, in 1895, that she had been served in (965) the original proceedings, was the evidence of service in said proceed- ing required by the law of this state. "Twentieth. Because his honor erred in holding that it was not competent for the defendant to allege or prove that necessary parties had not been made in the suit instituted in 1895 for the confirmation of plaintiff's title. "Twenty-First. Because his honor erred in holding that the de- cree made the confirmation proceedings of 1895 was the decree of a court of competent jurisdiction, holding the plaintiff's title to be good, although the court had not acquired jurisdiction over the persons of several of the parties interested in the property." Lord & Burke, for appellant. Smythe, Lee & Frost, for re- spondent. JONES, J. This is a suit for the foreclosure of a mortgage of real estate executed by defendant to plaintiff, July 17, 1895, to se- cure a bond of same date for the purchase money, conditioned to pay a certain sum, with specified interest, five years from its date, or as soon before that time as the title to the mortgaged premises shall, by a court of competent jurisdiction, be held or made good, so far as an alleged defect alone is concerned. Suit was commenced in November, 1895. The alleged defect is set forth in the bond, as follows: "That in the case of G. S. Holmes, administrator, against Zanoguera et al., 276 CONSULAR CASES filed and of record in the court of common pleas for Charleston county, in which suit said lot 55 [the mortgaged premises] was sold, the proof of service upon certain minor defendants was made by the affidavit of Miguel Sbert, the person serving said minors, before a con- sular agent of the United States in the island of Majorca, kingdom of Spain, which said affidavit is alleged to be defective and not taken before the proper officer." The complaint, after the usual allega- tions in such cases, further alleged that the alleged defect does not, and never did, affect the validity of the title to the said property, but that, in order to further assure and remove all questions from the same, the plaintiff obtained from said Zanoguera heirs, on the 30th July, 1895, an affidavit before the Unites States consular agent in Majorca, Spain, to the effect that the service had actually been made by the said Miguel Sbert (since deceased), as set out in the former affidavit of said Sbert in the case of Holmes, administrator, against Zanoguera, in 1875; and that said affidavit of 30th July, 1895, had been forthwith filed in the records of said cause nunc pro tunc, as further proof of service. The complaint further alleged that, in order to still further remove all shadow of the alleged defect from said title, the plaintiff filed, in the common pleas court for Charleston county, summons and complaint against the heirs at law of Sebastian' Zanoguera, wherein it referred to the suit of Holmes, administrator, against Zanoguera, and the alleged irregularity in the proof of service, and prayed the court to declare the said proceedings and proof of service regular and valid, and no cloud on the title of this plaintiff, or else confirm the said former proceedings; that on the 7th day of .September, 1895, Judge 0. W. Buchanan therein decreed the pro- ceedings in the case of Holmes, administrator, against Zanoguera, to have been valid and binding, and further confirmed and ratified them in all respects and vested and validated in plaintiff the title to the property in question, and that said judgment stands of force and un- appealed from. The complaint then alleged that the title to the mort- gaged property has been, in a court of competent jurisdiction, held and made good so far as the alleged defect referred to in said bond is concerned, and that the court should declare the condition of said bond and mortgage broken. To this end the complaint prayed, and for foreclosure. The answer denies that the condition of said bond has been broken, and alleges that the matters referred to in said bond did and do affect the validity of the title of the said premises ; that in a chain of title is a conveyance of said premises by A. J. White to Sebastian Zanoguera, dated 27th March, 1872; that, under proceed- ings for settlement of the estate of said Sebastian Zanoguera, the said premises were conveyed by the sheriff of Charleston county to Robert 277 CONSULAR CASES Hunter, January 6, 1876; that, on settlement of the estate of Robert Hunter, said premises were conveyed by a master of said court to the plaintili", July 31, 1890, and that on 17th July, 1895, plaintiff con- veyed same to defendant ; that in said proceedings for settlement of the estate of Sebastian Zanoguera, who died intestate, his widow and seven minor children wore named as parties, but there is no proof of the service of the summons on the said infant defendants, who were then aged about 1, 3, 4, 6, 9, 13, and 16 years, respectively, except an affidavit of service before a United States consular agent, as set out in the bond annexed to the complaint. As to the affidavit of July 30, 1895, the answer admitted tbat such an affidavit was obtained from some of the heirs of said Sebastian Zanoguera, but alleged that some of the heirs, Maria, Antonio, and Miguel, did not sign the affidavit, and alleged on information and belief that Maria and Antonio are dead, and that Joanna, who did sign the affidavit, was then under 21 years of age. As to the proceeding in the case of the Marine Wharf & Storage Company against Catalina Zanoguera and others, in 1895, referred to in the complaint, the answer alleged that at that time the said Maria was dead, having died in April, 1890, leaving, as her heirs, her husband and a child, now about six years old, and that these heirs were not parties to said proceedings. Plaintiff demurred to the an- swer, on the ground that it did not state facts sufficient to constitute a (966) defense. His honor, Judge Benet, hearing the cause, sus- tained the demurrer, and made decree for foreclosure. This decree and the grounds of appeal therefrom will be found set out in the re- port of this case. The exceptions, in ultimate analysis, raise in general one control- ling question, viz. whether the condition of said bond had been broken at the time of the commencement of this action. As shown by the terms of the bond, it was payable (1) within five years from its date, (2) or as soon before that time as the title to said premises shall by a court of competent jurisdiction be held or made good so far as the alleged defect alone is concerned. The action having been com- menced within the five years, it remains to ascertain if a court of competent juri.sdiction had, previous to the commencement of this action, held or made good said title. The record in the case of the Marine "Wharf & Storage Company against Catalina Zanoguera, the elder, Catalina Zanoguera, the younger, Elvira Zanoguera, Maria Zanoguera, Antonio Zanoguera, Madilina Zanoguera, Miguel Zano- guera, and Joanna Minie Zanoguera, was made a part of the com- plaint, and was not questioned by defendant, except as hereinafter noticed, and shows on its face that the summons and complaint therein were duly and legally served by publication, and due proof 278 CONSULAR CASES of same made. The court of common pleas for the county of Charles- ton, having power to hear and determine such a cause, having juris- diction over the subject-matter, and complying fully with the statute as to service of summons by publication, was a court of competent jurisdiction. By its judgment, September 7, 1895, it declared the proceedings in the said cause of Holmes, administrator, against Zano- guera, ''to have been valid and binding," and proceeded, further, to confirm and ratify the same in all respects, and declared the title to the property in question to be vested and validated in the plaintiff, etc. Defendant's title to the premises, as grantee of the plaintiff, was therefore held good on September 7, 1895, by a court of compe- tent jurisdiction, when, by its terms, the bond became payable. So far as the question before us is concerned, it makes no dif- ference that it appears dehors the record that two of the Zanoguera heirs, Maria and Antonio, were dead at the time of the proceedings in 1895, Maria leaving a husband and infant child, who were not parties thereto ; nor is it material that Joanna was under 21 years of age on the 30th July, 1895, when the affidavit was signed. It does not appear that she was not 21 years old at the commencement of the proceedings later, in 1895, and the presumption is that she was. The judgment of Judge Buchanan, September 7, 1895, was regular on its face. Nothing whatever appears in the record to impeach it. It is not void, and cannot be assailed collaterally, especially by de- fendant. Darby v. Shannon, 19 S. C. 526; Hunter v. Ruff (S. C.) 25 S. E. 74. In reaching the conclusion that the proceedings, including the proof of service, on all the Zanoguera heirs, in the case of Holmes, administrator, against Zanoguera, was valid and binding, Judge Buchanan must have decided that the proof of service of the summons and complaint on the Zanoguera heirs, October 6, 1875, by the affidavit of Miguel Sbert, before Ernesto Canut, United States consular agent, was a compliance with the statute, or that the proof of service was a mere irregularity, which was cured by the affidavit of July 30, 1895, filed with the record. In either view, his judgment was the judgment of a court of competent jurisdiction, holding the title in question to be good. This being so, the bond became payable on the filing of this judgment. Having reached this conclusion, we think it quite unnecessary to consider the other matters so ably and satisfactorily discussed in the opinion of Judge Benet. We concur fully with the circuit court that the proceedings in the case of Holmes, administrator, against Zano- guera et al., were regular, valid, and binding on all the minor de- fendants therein. It will be observed that the bond itself and the pleadings assume as true that Ernesto Canut was a consular agent of 279 CONSULAR CASES the United States in Majorca, Spain. The alleged defect was that Ernesto Canut, though United States consul, was not authorized to administer the oath to the affidavit of Miguel Sbert, who served the minors. The code (section 158), as it stood at that time, required that in addition to publication, in the case of minors who could not be found within the state, service of summons and complaint should be made by delivering a copy thereof to the minor personally, and, if under the age of 14 years, also to his or her father, mother, or guardian, etc. It further provided that "proof of such personal service shall be made by affidavit of the party delivering the copy, summons and complaint properly authenticated." An "affidavit" is defined in 1 Am. & Eng. Enc. Law, p. 307, to be "a formal written (or printed) voluntary ex parte statement sworn (or affirmed) to be- fore an officer authoribed to take it, to be used in legal proceedings." Unless a statute or rule of court otherwise requires, any one authorized to administer an oath may take an affidavit. Id. p. 309. In the ab- sence of some statute or rule of court providing otherwise, proof of service on a nonresident may be made by affidavit taken before any officer qualified by law to take affidavits where the affidavit is made. The officer's signature and seal is a sufficient authentication, unless some statute or rule of court requires further authentication. In this case the affidavit contains all the requisites of an affidavit properly authenticated if Ernesto Canut, conceded to have been at the time a United States consul at Majorca, Spain, was qualified to administer such oath. That he was so qualified under the laws of the United States is shown in Rev. St. U. S. 1878, p. 311, wherein every consular agent is "authorized to (967) administer to or take from any person any oath, affirmation, afiidavit, or deposition, and to perform any notarial act which any notary public is required or authorized by law to do within the United States. Every such oath, affirmation, affi- davit, deposition and notarial act, administered, sworn, affirmed, taken out or done by, or before, any such officer, when certified under his hand and seal of office, shall be as valid and of like force and effect within the United States, to all intents and purposes, as if admin- istered, sworn, affirmed, taken out, or done by before any other person within the United States, duly authorized and competent thereto." This act was passed in 1856, was therefore in force when the provisions of the code as to proof of service on nonresidents was adopted, and we assume the legislature had in mind the right of a United States consul to take an affidavit when this provision was adopted. In 1884, section 159 of the code was amended, giving more specific directions as to the proof of sorvioe of process when made out of the state, and it is therein provided: "If [the service] is made without the limits 280 CONSULAR CASES of the United States, [prof thereof may be made] before a consul or vice consul or consular agent of the United States who shall use in his certificate his official seal." The case of Woolfolk v. Manufac- turing Co., 22 S. C. 337, cited in behalf of appellant, is not in conflict with the view here announced. In that case it was held that, under our registry laws in force in 1820, a deed executed in South Carolina, and proved before a magistrate in Georgia, was not prop- erly probated for record, because the act required such a deed to be probated "before a judge of the supreme court, or a mag- istrate out of the court." The court held that these words "meant officers of this state, commissioned by this state, and acting within this state." In the case at bar no officer was specified as the person who should take the affidavit. If the proceedings in 1875 were not defective, it becomes unnec- essary to consider what curative effect subsequent proceedings have thereon. The judgment of the circuit court is affirmed, MARSHALL v. CEITICO, (1808, Great Britain) 9 East 447. Lord Ellenhorough, King's Bench. [Counsel for defendant claimed that as a consul-general he was privileged from arrest even though he had been dismissed before his arrest considering that he was not yet informed of his dismissal and continued to act as consul-general. — Ed.] (Extract) This is not a privilege of the person, but of the state which he represents. And that state having some months before de- vested him of the character in which he claims the privilege, and ap- pointed another person here to exercise it; there is no just reason why the defendant should not be subject to process as other persons ; nor for the state, by which he had been so dismissed from his employ- ment, to take offence at his arrest. MARSTON V. UNITED STATES, (1896, U. S.) 71 Fed. Rep. 496. Woods, Circuit Court. [American consul removed from office before end of fiscal year is only entitled to retain a part of the fees collected proportional to the part of the fiscal year during which he has held office. — Ed,] MARY, THE, See Wilson v. The Mary. MARY FORD, THE, See M'Donough v. Dannery. 281 CONSULAR CASES MATHESON v. CAMPBELL. (1895, U. S.) 69 Fed. Rep. 597. Townscud, Circuit Court. TOWNSEND, District Judge. (Extract) Final hearing on bill for injmiction and accounting. Complainant alleges infringement of patent No. 345.901 for naphthol-black color compound, granted July 20. 1886. to Meinliard Hoffmann and Arthur "Weinberg, and assigned to complainant July 10, 1888. A preliminary question suggested by defendant is whether an as- signment which purports to have been executed before the consul general of the United States of Frankfort-on-the-Main, Germany, is sufficiently proved by the signature of said consul general and the United States consulate general seal. I think this proof is sufficient, imder the statutes of the United States and of the state of New York. Rev. St. U. S. sect. 1750; Pharmical Ass'n v. Tilden, 14 Fed. 740: Houghton V. Jones, 1 Wall. 702. MATHEWS V. UNITED STATES, (1887, U. S.) 123 U. S. 182. Harlan, Supreme Court. [Question of salary and involves no consular question. — Ed.] MATTHEWS v. OFFLEY, (1837, U. S.) 3 Sumn. 115; Fed. Cases 9,290. Story, Circuit Court. (122) (Extract) The next question is to the ruling of the learned judge of the district court, in admitting the certificate of the vice consul, stated in the bill of exceptions, as prima facie evidence of all the facts therein certified ; whereas, the counsel for the original de- fendant contended, and now contend, that it was not evidence, except of the refusal of the defendant to take the seaman on board. The fourth section of the act of 1803, after the provisions, which have been already alluded to, proceeds to declare; "And the certificate of such consul or commercial agent, given under his hand and official seal, shall be prima facie evidence of such refusal, in any court of law having juri.sdiction for the recovery of the penalty aforesaid." The whole question turns upon (123) what is to be understood as intended to be included in the statute. Is it the dry naked fact, that the master refused to take a seaman on board, giving his name, at the request of the consul. &c. ? Or does the statute mean by the words "such refusal," a refusal under the circumstances stated in the preceding part of the section ? My opinion is, that the latter is the true inter- 282 CONSULAR CASES pretation of the statute. It meant to provide, that the certificate should contain and be evidence, prima facie, of all facts stated in the enact- ing clause of the section, which is necessary to bring the case within the penalty; for all those facts are indispensable to make it "such re- fusal" as the statute contemplates. Upon any other construction the enactment would be wholly nugatory for all the purposes of enforcing the statute; since every material fact to enforce the penalty must be proved aliunde the certificate. The statute placed confidence in the consul, as a public officer, bound to the performance of highly re- sponsible duties, and meant to make his certificate the proper and ordinary proof, though not conclusive proof, of all the facts to sus- tain a suit for the penalty. That is to say, it meant that he should certify, that the seaman was a seaman of the United States, was desti- tute, that he requested the master of an American ship, bound to the United States, to take him on board and transport him to a port of the United States, for the statute compensation, with a proviso that he should not be compelled to take more than two seamen for every one hundred tons burthen of the ship, and that he refused so to do. "Such refusal," and no other, would constitute an offence within the statute; and such refusal and no other is to be certified. Now, the present certificate contains the allegations of these necessary facts ; and none other ; and, therefore, it seems to me, that it was properly ad- missible, in the whole, according to the ruling of the district judge. MILLER V. VAN LOBEN SELLS, (1885, U. S.— Paraguay) 66 Cal. 341; 5 Pac. 512. McKee, Supreme Court of California. (Syllabus) The privilege of a consul to exemption from liability to suit in the state courts is not a personal privilege ■which may be waived, and his priv- ilege is not, therefore, waived by a failure to plead such exemption, in a suit against him in a state court, nor by reason of failure to set up the same until after judgment rendered against him, MOORE V. MILLER, (1892, U. S.— Canada) 147 Pa, 378; 23 Atl. 601; 5 Moore 110. Per Curiam, Supreme Court of Pennsylvania. [Held, that the acknowledgment of a married woman before a United States commercial agent in Canada, conforms to statutes and acts of state legislature and is sufficient. — Ed.] MORRIS V, CORNELL, (1843, U. S.) 1 Sprague 62, Fed. Cases 9,829. Sprague, District Court. (65) (Extract) The next allegation against the respondent is, that 283 CONSULAR CASES he prevented the libellant at different ports, from laying his com- plaints before the American consul. This right is secured to every seaman by the statute of 1840, ch. 23, and if the consul be an upright and independent officer, it may be of immeasurable value to the op- pressed and friendless mariner in distant regions. It may be called the habeas corpus of the seaman, and the court will carefully and vig- orously guard its inviolability. MOSBY V. UNITED STATES, (1888, U. S.) 24 Ct. CI. 1. Weldon, Court of Claims. [OflRcial fees — appealed see U. S. v. Mosby. — Ed.] MOTHERWELL v. UNITED STATES, (1901, U. S.— Russia) 107 Fed. R«p. 437. Dallas, Circuit Court. [Affirms decision in U. S. v. Motherwell. Very able dissenting opinion of District Judge Bradford to the effect that the Russian in question should be considered a deserter. — Ed.] MOTT V. SMITH, (1860, U. S.) 16 Cal. 552. Field, Supreme Court of California. [Certificates of acknowledgment if purported to be by one au- thorized are prima facie evidence of execution of deed ; so also prima facie evidence of the official character of persons giving them. No proof aliunde necessary of signature etc. General designation in statute, — "any consul" embraces consuls of every grade. — Ed.] NECK, THE. (1905, U. S.— Germany) 138 Fed Rep. 144. Hanford, District Court. [As American seaman had been enrolled in violation of U. S. laws he was not member of crew and treaty does not give German consul jurisdiction. — Ed.] NEW CITY, THE, (1891, U. S.) 47 Fed. Rep. 328. Hanford, District Court. [Held, that where the British vice-consul, on the facts shown by 284 CONSULAR CASES the shipping articles and on the ex parte statements of libellants, had refused to order payment to them of wages, the district court of the TJ. S. will dismiss the libel — Waitshoair v. The Craigend, 42 Fed. Rep, 175 distinguished — there was no protest of consul in that case — ■ U. S. courts exercise jurisdiction proceeding upon the idea of comity and to prevent a failure of justice but will not interfere when deci- sion has been given by an authorized agent of the government of the country to which the vessel belongs. — Ed.] KEWMAN, EX PARTE, (1871, U. S.— Germany) 14 WaU. 152. Clifford, Supreme Court. [German consuls are by treaty given right to decide all dis- putes between seamen and master and this excludes admiralty courts' jurisdiction in case of a suit ''in rem" for wages. — Ed.] NIBOYET V. NIBOYET, (1878, Great Britain) L. E., 3 P. D. 52 ; 39 L. T. 486. Sir Robert Phillimore, Probate Division, High Court of Justice. (59) (Extract) It is to be observed, however, that in the present case the husband ia not only a foreign subject, but is employed in this country in the discharge of duties belonging to a foreign public of- fice which incapacitates him from acquiring a domicile in this country. [This case was reversed in 4 L. R. P. D. 1, but the court did not declare that a domicile was acquired, but only that the court had jur- isdiction for other reasons. — Ed.] NIBOYET V. NIBOYET, See Niboyet v. Niboyet. 4 L. R. P. D. 1. NINA, THE, (1867, Great Britain— Portugal) 2 L. R. P. C. 38. Lord Romilly, Privy Council. (44) LORD ROMILLY: In this case their lordships, to avoid delay, intimated on the 20th of December last the nature of the report and recommendation they had agreed humbly to submit to her maj- esty ; and her majesty was pleased, by her order in coimcil of the same date, to approve of that report, and to direct that the same be carried into execution. Their lordships will now proceed to state more fully the reasons of that decision, which could not be stated at their last gittwg before the adjournment of the committee. 285 CONSULAR CASES This is an appeal from the court of admiralty, which dismissed the defendant from this cause and all further observance of justice therein, and condemned the plaintiff in the costs and damages con- (45) sequent on the arrest of the vessel Nina, and also condemned him in the costs of the cause, and decreed the vessel to be released. The vessel is a Portuguese vessel ; the appellant is a British sub- ject. In April, 1867, the plaintiff commenced his services on board the Nina, then lying at Havana. He signed the articles in the common form which was supplied to him, a certified copy of which is in evi- dence. On arrival at Greenock, he alleges that he was, by D 'Almeida, the nominal captain, turned out of the vessel without payment of what was due to him for wages and disbursements on account of the ship. Upon which he arrested her. but not prosecuting the case with suf- ficient diligence in Scotland, the suit was dismissed and the ship re- leased. The Nina then came to Cardiff, where the appellant again arrested the ship, and instituted this suit in the admiralty court for wages and disbursements. In accordance with the 10th of the rules of the admiralty court, published in 1859, notice of the suit was given to the Portuguese con- sul residing in this country; whereupon the consul sent in a protest, which, as far as is material, is as follows: "I have inspected the certificate of the matricula, or roll, under which the Nina was sailing when she arrived at Greenock in the month of June, 1867 ; and I say that such matricula, or roll, purports to have been duly executed, as required by Portuguese law, before Fernando de Gaver e Tiscar, the consul-general of his most faithful majesty the king of Portugal at Havana. "By the law of Portugal, the masters of all Portuguese vessels are required, before taking any officer or seaman to sea in a Portu- guese vessel, to enter into a matricula, or roll, setting forth the voyage upon which the ship is about to sail, and that the officers and seamen about to proceed in her have agreed to serve for that voyage ; and such matricula, or roll, is by Portuguese law the only mode in which a binding engagement can be entered into between the master of a Portuguese .ship and his officers and seamen ; and the matricula, or roll, when entered is signed by the master, officers, and seamen. "The plaintiff in this action, Charles La Blache, has, by the said matricula, or roll, submitted himself to the provisions of the (46) codigo commercial of Portugal, by which the said Charles La Blache is restricted from taking any proceedings against the Nina or her master, and is required to submit any dispute or disputes that might 286 CONSULAR CASES be existing between them either to the Portuguese vice-consul at Glas- gow or to myself. "The said Charles La Blache has not, as I am informed and be- lieve, submitted, or attempted to submit, any dispute or disputes ex- isting between him and the master of the Nina to the Portuguese vice- consul at Glasgow; and the said Charles La Blache has not sub- mitted, or attempted to submit, any such dispute to me, which I would have readily entertained had the said Charles La Blache so done. **The said Charles La Blache being subject to the provisions of the codigo commercial, and not having taken the measures adopted thereby to settle his dispute with the master of the Nina, I respectfully submit that it is not within the jurisdiction of this honourable court to entertain the claim of the said Charles La Blache ; and, as the commer- cial representative of his majesty the king of Portugal, I consider it to be my duty to respectfully and formally protest against the ex- ercise of the jurisdiction of this honourable court in or about the dispute existing between the said Charles La Blache and the master of the Portuguese ship Nina. "F. I. Van Zellab.'* In this state of things several questions arise : First; whether the court of admiralty has any jurisdiction at all in the case of a claim for wages by seamen for service on board of a foreign vessel. Second ; if it has such jurisdiction, whether, before exercising it, the court is bound to send notice of the case to the consul of the state to which the vessel belongs. Third ; if the foreign consul intervenes and protests, whether such protest operates ipso facto as an absolute bar to the prosecution of the suit, or whether the judge is to take into consideration the grounds and reasons advanced by the consul, and to determine according to his discretion whether, having regard to those grounds and reasons, it is fit and proper that the suit should proceed or be stayed. (47) Fourth; whether the grounds and reasons put forward in the protest of the Portuguese consul in the present case are sufficient to satisfy the court that the suit ought to be stayed. On the first question, no doubt whatever is entertained by their lordships. From the time of Lord Stowell down to the present, the court of admiralty has always asserted and exercised this jurisdiction. And if there remained any doubt on the subject, the 10th section of the act, 24 Vict. c. 10, expressly gives jurisdiction to the court of ad- miralty in the case of any ship, which, as the context, and the rest of the act plainly show, means the ship of any nation. 287 CONSULAR CASES Nor have their lordships any more doubt upon the second ques- tion. It has been argued at the bar that the 10th section of the act, 24 Vict. c. 10, before referred to, has the effect of abolishing the practice enjoined by the 10th of the rules of the admiralty court of 1859, before referred to, of sending notice to the consul of the nation to which the foreign ship belongs. To this argument their lordships cannot accede. If it had been intended by the legislature to abolish the practice, that 10th rule, which it is to be observed has the force of statute, would have been expressly referred to by the act, and over- ruled. This is not done. The 10th section of the act is perfectly con- sistent with the rule. The only object of that section was to extend the jurisdiction which the court already had in the ordinary case of wages, to the cases of wages under special contract, and of disburse- ments on account of the ship. With respect to the third question, their lordships are of opinion that the protest of the foreign consul does not, ipso facto, operate as a bar to the prosecution of the suit. The foreign consul has not the power to put a veto on the exercise of its jurisdiction by the court of admiralty. It is well observed by Dr. Lushington, in the case of The Golubchick, that the jurisdiction of the court of admiralty cannot depend upon the will of a foreign consul ; that as he cannot confer the jurisdiction, so he cannot take it aw^ay. If the consul protests, but advances no reason, the suit will proceed. If he advances reasons for staying the suit, the plaintiff must be at liberty to dispute the facts and answer the reasons put forward by the consul ; and then the judge (48) of the court of admiralty is to exercise his discretion, and determine whether, having regard to those reasons, with the answers thereto, it is fit and proper that the suit should proceed or be stayed. By de.scretion is meant, to use the words of Lord Eldon, in White v. Damon,* not an arbitrary, capricious discretion, but one that is regulated upon grounds that will make it judicial. That the exercise of this jurisdiction by the court of admiralty lies in the discretion of the court in the sense before stated, is established by a long line of authorities, from the time of Lord Stowell down to the present. They are all one way. and thpy are, in the opinion of their lordships, conclu- sive on this subject. And their lordships concur in the decision of the late learned judge of the court of admiralty in the case of The Octavie, that this discretion is not taken away by the 10th section of the ad- miralty jurisdiction act, already referred to. Upon the first three questions, then, their lord.ships are of opin- ion that in the ca,se of a suit for wages by seamen for service on ' 7 Vee. 35. 288 CONSULAR CASES board of a foreign vessel, the court of admiralty has jurisdiction, but that it will not exercise it without first giving notice to the consul of the nation to w hich the foreign vessel belongs ; and that if the foreign consul, by protest, objects to the prosecution of the suit, the court will determine according to its discretion, judicially exercised, whether, having regard to the reasons advanced by the consul, and the answers to them offered on the part of the plaintiff, it is fit and proper that the suit should proceed or be stayed. Their lordships are further of opinion, that it makes no differ- ence that the plaintiff is a British subject. It is the nationality of the vessel, and not the nationality of the individual seaman suing for his wages, that must regulate the course of procedure. With respect to the fourth question which is, whether the facts and reasons adduced by the foreign consul are established, and, if so, whether they are sufficient to induce the court to stay the further prosecution of this suit; their lordships think that they are so. The plaintiff does not deny that the roll or matricula which he signed was in the usual form, and that it contained the usual printed conditions which now appear on the certified copy (49) produced in court. By these he agrees to be bound by the Portuguese law ; the consul asserts the law to be, that in case of difference between the seamen and the captain the case shall be determined by the Portuguese consul residing in the country where the ship is arrested. The consequence is, that he is the judge to determine the contest between the plaintiff and de- fendant, and he is ready and willing to hear and dispose of the case. No evidence is given to contest the accuracy of this statement, and this being so, their lordships are of opinion, that the plaintiff has agreed to refer such matters to the decision of the Portuguese consul resident here, and that this constitutes a sufficient ground to induce the learn- ed judge of the court of admiralty to come to the conclusion that, in the proper exercise of his discretion, this suit should not be pro- ceeded with. It must be a very strong case in which their lordships would be disposed to overrule the discretion of any judge which had been bo7ia fide exercised on judicial principles, and they are of opinion that the decision of the learned judge is correct in dismissing the cause and releasing the vessel ; but the decree in the court below proceeds to award costs and damages to the defendant against the plaintiff. Their lordships are unable to discover on what principle this can be rested. The question in the court below, and now before their lordships, is not whether the plaintiff was right in his suit; for the suit has not properly come to any hearing on the merits. The evidence necessary for arriving at a decision on the merits has not been produced. The 289 CONSULAR CASES only qiiestion properly before the court below was, whether the suit instituted by the plaintiff should be allowed to proceed or not; io other words, whether the facts and reasons set forth by the Portu- guese consul were sufficient to induce the court to refuse to allow the suit to proceed, and these facts and reasons were the only matters which could be properly contested in the court below. The learned judge arrived at the conclusion, as their lordships think correctly, that the suit should not proceed ; but that very circumstance made it impossible for the court to come to a safe and satisfactory conclusion as to what would have been the result if the suit had been allowed to proceed, the proofs on both sides given in the usual manner, and the cause heard on the merits. (50) Their lordships, therefore, are unable to concur with the learned judge of the court of admiralty in that portion of his decree which fixes the plaintiff with the payment of costs and damages, and have, therefore, humbly reported to her majesty that the decree of the court of admiralty be varied by strik- ing out of it so much as relates to such costs and damages. The decree runs thus: Her majesty dismisses the defendant from this cause and all further observance of justice therein, and decrees the said vessel to be released ; but their lordships do not think fit to make any order as to costs, either in the court below, or in the appeal to her majesty in council. Solicitors for the appellant : Cotterill & Sons. Proctors for the respondent: Clarkson, Son, & Cooper. NORBERG v. HILLGREII, (1846, U. S.— Sweden) 5 New York Legal Observer 177. Jones, New York Supreme Court. Where an action was brought in the Marine Court for seaman's wages earned on board of a Swedish vessel, and judgment was obtained thereon: — It was held, (reversing the judgment of the court below) that the case came within the proviflions of the treaty between this country and the government of Sweden and Norway, and that the claim was, therefore, only cognizable before the con- sul of the country to which the vessel belonged. Error from the marine court. The circumstances of this case suf- ficiently appear in the opinion delivered by the learned chief justice. F. S. Stallknecht, for the plaintiff in error. A. Nash, for the defendant in error. JONES, C. J. This case comes before us on certiorari to the ma- rine court. The action is assumpsit brought by Hillgreu, plaintiff in the court below, for seaman's wages. The defense that was inter- 290 CONSULAR CASES posed, and the only defence on which any reliance is placed, was that these wages were earned on board of a Swedish vessel, of which the defendant below was captain, and plaintiff one of the crew, and that by a provision in the treaty between this country and the gov ernment of Sweden and Norway, the courts of this country have no jurisdiction in such cases; but that such claims are cognizable only before the consul of the country to which the vessel belongs. The clause of the treaty is as follows: (178) "The consuls, vice-consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels, belonging to the nation whose interests are committed to their charge, without the in- terference of the local authorities, unless the conduct of the crew, or of the captain, should disturb the orders or tranquility of the country; or the said consuls, vice-consuls, or commercial agents, should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood, that this species of judgment, or arbitration, shall not deprive the contending parties of the right they have to resort, on their return, to the judicial author- ity of their coimtry," Notwithstanding this provision, the marine court gave judgment of $100 and costs for the seaman, and the question we are called upon to review is, whether this case does or does not come within the treaty. We are of opinion that it does come within the treaty; it is of great importance to American masters of vessels in Sweden, that they should have the protection of this clause to prevent the interference ot the courts of Sweden with their crews, and under this clause they have a right to claim that no one but the American consul there shall have any right to adjudicate such differences as may arise between them. Now, if our vessels in Sweden have this right there, of course we ought as fully to extend the same protection to Swedish captains here. In this case, the facts clearly appear that the seaman is a Swede by birth, and he is alleged to have deserted on a former voyage of this vessel in this port. When the vessel again came here, he voluntarily shipped again, and on her last return here, again left her without per- mission, and then instituted this suit for his wages, since his last ship- ment, the consul, at the same time, having caused proceedings to be instituted to have him arrested as a deserter. No case certainly could come more directly and fully within the treaty. It is contended by the counsel for the seaman, that the fact of his having the last time shipped in New York, takes the case out of the treaty, and that it ap- plies only to the crew who originally shipped in Sweden- Such a con- 291 CONSULAR CASES stniction of it would be entirely too narrow; the custom of shipping sailors in foreign ports by vessels of all nations is general, and nec- essarily must exist ; and persons who thus ship voluntarily, bring them- selves under the government and jurisdiction of the countrj' on board whose vessel they ship. A seaman has no right to appeal to the courts here, as long as he belong to a Swedish vessel. The attention of the coiul is directed to a part of the justice's return, imputing fraud to the official acts of the consul in the man- ner of shipping the sailor. We see no grounds for imputing either fraud or improper motives to the consul's acts; all he did, appears to us clearly to be what his official duty required, and no more. And even if a foreign official should at any time fail in his duty, national courtesy should prompt the courts here, not to make them the subject of unnecessary comment. Judgment reversed. OCTAVIE, THE, (1863, Great Britain— Belgium) 33 L. J. P. M. A. N. S. 115. Dr. Lushington, High Court of Admiralty. (Syllabus) The protest by a foreign consul against the prosecution of a iuit for wages against a ship of his country does not deprive the court of its jur- isdiction, but makes the exercise of that jurisdiction discretionary. ORNELAS v. RUIZ, (1895, U. S.) 161 U. S. 502. Fuller, Supreme Court. (Extract) The republic of Mexico applied for the extradition of these petitioners by complaints made under oath by its consul at San Antonio, Bexar county, Texas, under section 5270 of the revised stat- utes. The official character of this officer must be taken as sufficient evidence of his authority, and as the government he represented was the real party interested in resisting the discharge, the appeal was properly prosecuted by him on its behalf. Wildenhus's case, 120 U. S. 1. As the construction of the treaty was drawn in question the ap- peal was taken directly to this court, and the district court rightly required petitioners, under rule 34, to enter into recognizance for their appearance to answer its judgment. ONE HUNDRED AND NINETY-FOUR SHAWLS, (1848, U. S.— Great Britain) 1 Abb. Adm. 317; Fed. Cases 10,521. Beits, District Court. [Consul intervened to represent unknown owners. Court decreed that in respect to the British consul, who inter- 292 CONSULAR CASES vened officially in protection of the rights of absent and unknown owners, his taxable costs were to be paid before the order for de- livering up the property was executed. — Ed.] (Extract) As the libellants may not reclaim the property at- tached in their behalf, the decree will make provision enabling the claimants who have intervened in their own rights and the British consul in behalf of unknown owners, to take the goods out of court and ship them to their port of destination. ORE v. THE ACHSAH, (1849, U. S.) Fed. Cases 10,586. Kane, District Court. [Suit in rem for wages after break up of voyage. — Ed.] (Syllabus) The protest of a foreign consul will not prevent the district court from taking jurisdiction of the case. OSCANYAN V. ARMS COMPANY, (1880, U. S.) 103 U. S. 261. Field, Supreme Court. (272) (Extract) In the first place, the plaintiff was, at the time, an officer of the Turkish government. As its consul-general at the port of New York, he was invested with important functions, and en- titled to many privileges by the law of nations. It is not necessary here to state with any particularity the functions and privileges at- tached to the consular office. These will be found in any of the ap- proved treatises on international law. It is enough to observe that a consul is an officer commissioned by his government for the protection of its interests and those of its citizens or subjects; and whilst he is sometimes allowed, in Chris- tian countries, to engage in commercial pursuits, he is so far its public agent and commercial representative that he is precluded from undertaking any affairs or assuming any position in conflict with its interests or its policy. By some governments he is invested in the absence of a minister or ambassador to represent them — with diplo- matic powers, and, as between their citizens or subjects, may also exercise judicial functions. By all governments his representative character is recognized, and for that reason certain exemptions and privileges are granted to him. In the constitution of the United States, consuls are classed with ministers and ambassadors in the ennumeration of parties whose cases are subject to the original juris** 293 CONSULAR CASES diction of the supreme court, and in the treaty with the Ottoman em- pire authority is given to it to appoint consuls in the United States. [In this case Turkish consul general sought to recover a stipulated percentage for using his influence with his government to induce it to purchase certain goods. — Ed.] OTTERBOUEG'S CASE, (1869, U. S.) 5 Ct. a. 430. Peck, Court of Claims of United States. [A statutory requirement, as to a prescribed oath preceding entry upon duties of consul and before latter shall be entitled to salary, must be complied with before officer duly authorized to take oaths. Oath before consul of an other state not valid. Act of 18th August, 1856, consul cannot exercise diplomatic functions without authorization from president. — Ed.] PAESONS V. HUNTEE, (1836, U. S.) 2 Sumn. 419; Fed. Cases 10,778. Story, Circuit Court. [Case against shipmaster for not depositing ships' papers with consul — discussion of the proceedure to be followed in bringing suit for this omission — contains nothing material to the understanding of the consular office. — Ed.] PATCH V. MAESHALL, (1853, U. S.) 1 Curt. 452; Fed. Cases 10,793. Curtis, Circuit Court. This was an appeal from a decree of the district court, (453) in a cause of personal damage. The case is stated in the opinion of the court. CURTIS, J. The district court having made a decree in favor of the libf'llant. and awarded to him damages, in the sum of four hundred dollars, together with his costs, the respondent appealed to this court, and entered his appeal at the present term. Some days afterwards, the consul of her Britannic majesty at the port of Boston, filed a pro- test against the jurisdiction of this court, assigning for causes, in sub- stance, — ] . That the brig Hope, on board which the libellant and respon- dent sailed, was a British vessel; and the respondent, her commander, a British subject. 294 CONSULAR CASES 2. That an investigation of some of the alleged causes of damage must call in question official acts and conduct of a British functionary in regard to British subjects, for which he is responsible only to his own government. This objection to the jurisdiction must be first disposed of. The facts upon which its validity depends are, that the brig Hope was a registered vessel of Great Britain, and the master a British subject; that the voyage in question was made for account of merchants dom- iciled in Boston, who hired the master on wages, and provisioned and manned the vessel; but whether under a charter-party, or by reason of their ownership of the brig, does not appear. The voyage, described in the shipping articles, signed by the libellant, is from the port of Boston to St. Jago de Cuba, and back to a port in the United States. The voyage actually performed was terminated in Boston, in July last ; and the crew, including the libel- lant, were then and there discharged. The libellant was bom in the United (454) States, and is described in the articles as of Baltimore, in the state of Maryland. There is evidence tending to show, that the libellant was not aware the brig was not a vessel of the United States, until after she sailed from Boston. The family of the master has, for a considerable time, resided in the neighborhood of Boston ; and it did not appear that he has any other domicile. Upon these facts, I am of opinion this protest must be over- ruled. It is not easy to perceive how it can be allowed, without impairing the rights of the respondent himself. It must be remembered that he is the appellant. The protest is, therefore, an objection against entertaining his appeal. But if not entertained, what is to be done? If the appeal should be dismissed, upon the ground that this court would not exercise its jurisdiction in the case, the decree of the district court would stand unreversed; and upon a certificate from this court, that the appeal had been so dismissed, the district court might find itself obliged to execute its decree; because the decision would not be that the district court had not jurisdiction, or under the circumstances did not properly exercise it, no objection thereto being there made; but only, that after a protest by the consul, this court would not entertain the appeal. If, however, this difficulty were overcome, I should not see suf- ficient ground upon which I could decline to exercise jurisdiction. It is evident there must be a failure of jiLstice, if I were to do so. The claim is in personam. The actual domicile of the master is here. The voyage was ended at this port. The libellant is a native of the United States, and here has his home. To require him to follow this master 295 CONSULAR CASES over the world, until lie can find him in (455) a British port, would practically deprive him of all remedy. I do not think any considera- tions of public convenience, or the comity extended by the courts of admiralty of one country to those of another, have any applicability to such a case. I do not consider it necessary to review the decisions in Enjrland and this country, on the subject of the exercise of the admiralty jurisdiction over foreigners. None of them apply to a case where the claim is for a personal tort, and the libellant is not a for- eigner, and the respondent, though an alien, is domiciled here, and the voyage was begun and terminated in the United States, It is true this court should not call in question a British consul, for his official acts respecting the crew of a British vessel in a foreign port. It is correctly stated in the protest, that he is responsible solely to his o\vn government ; or if to individuals, such responsibility grows out of the mimicipal laws of his coimtry, which this court would not undertake to administer. But it does not follow that the conduct of the master of such a vessel, in procuring the official intervention of the consul, upon false allegations, to the injury of an American citi- zen by imprisonment in a foreign jail, is not to be here investigated. That depends on other considerations, and is not distinguishable from any other wrong done by the master, of which this court should take or refuse jurisdiction according to the national character and domicile of the parties, and the place of termination of the voyage. The Court- ney, Edw. 239; The Calypso, 2 Hag. 209; The Salacia, 2 Hag. 262; The Madonna, 1 Dods. 37 ; The Two Friends, 1 Rob. 271 ; The Johann Friederich, 1 Wm. Rob. 38; The Bee, Ware's R. 332; The Jerusalem, 2 Gal. R. 191. (456) The protest, therefore, must be overruled. The court then examined the evidence, and affirmed the decree of the district court. "Wheeloek, for the appellant. Sawyer, for the appellee. Hillard, in support of the protest. PATTERSON v. BARK EUDORA, (1903, U. S.— Great Britain) 190 U. S. 169, 23 Sap. Ct. Rep. 821. Brewer, Supreme Court. On a certificate from the United States circuit court of appeals for the third circuit presenting the question whether the provisions ol the statute prohibiting advance payment of wages to seamen were applicable to seamen shipping in a port of the United States on a foreign vessel, and whether, if so applicable, the statute was valid. Answered in the affirmative. 296 CONSULAR CASES Statement by Mr. Justice Brewer: On December 21, 1898 (30 Stat, at L. 755, 763, chap. 28, U. S. Comp. Stat. 1901, pp. 3071, 3080), congress passed an act entitled "An act to amend the laws relating to American seamen, for the protection of such seamen, and to promote commerce." The ma- terial portion thereof is found in § 24, which amends § 10 of chapter 121 of the laws of 1884, so as to read : "Sec. 10. (a) That is shall be, and is hereby, made unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same, or to pay such advance wages to any other person. Any person paying such advance wages shall be deemed guilty of a misdemeanor, and, upon conviction, shall be pun- ished by a fine not less than four times the amount of the wages so advanced, and may also be imprisoned for a period not exceeding six months, at the discretion of the court. The payment of such advance wages shall in no case, excepting as herein provided, absolve the vessel or the master or owner thereof from full payment of wages after the same shall have been actually earned, and shall be no defense to a libel, suit, or action for the recovery of such wages. If any person shall demand or receive, either directly or indirectly, from any sea- man or other person seeking employment as a seaman, or from any person on his behalf, any renumeration whatever for providing him with employment, he shall, for every such offense, be liable to a penalty of not more than one hundred dollars. ' ' * ' (/) That this section shall apply as well to foreign vessels as to vessels of the United States; and any master, owner, consignee, or agent of any foreign vessel who has violated its provisions shall be liable to the same penalty that the master, owner, or agent of a vessel of the United States would be for a similar violation ; provided that the treaties in force between the United States and foreign na- tions do not conflict." The appellants were seamen on board the British bark Eudora, and filed this libel for wages in the district court of the United States for the Eastern District of Pennsylvania. By an agreed statement of facts it appears that on January 22, 1900, they shipped on board such bark to serve as seamen for and during a voyage from Portland, Maine, to Rio and other points, not to exceed twelve months, the final port of discharge to be in the United States or Canada, with pay at the rate of one shilling for forty-five days and twenty dollars per month thereafter. At the time of shipment twenty dollars was paid on accoimt of each of them, and with their consent, to the shipping agent through whom they were employed. On the completion of the voyage, they, having performed their duties as seamen, demanded 297 CONSULAR CASES wages for tlie full term of service, ignoring the payment made, at their instance, to the shipping agent. The advanced payment and con- tract of shipment were not contrary to, or prohibited by, the laws of Great Britain. It was contended, however, that they were pro- hibited by the act of congress, above quoted, and that such act was applicable. The district court entered a decree dismissing the libel. 110 Fed. 430. On appeal to the circuit courts of appeals for the third circuit, that court certified the following questions to this court : "First. Is the act of congress of December 21, 1898, properly applicable to the contract in this case? "Second. Under the agreed statement of facts above set forth, upon a libel filed by said seamen, after the completion of the voyage, against the British vessel, to recover wages which were not due to them imder the terms of their contract or under the law of Great Britain, were the libellants entitled to a decree against the vessel?" Mr, Joseph Hill Brinton for appellants. Assistant Attorney General Beck for the United States. Messrs. Horace L. Che>Tiey and John F. Lewis for appellee. Mr. Justice Brewer delivered the opinion of the court : Applying the ordinary rules of construction, it does not seem to us doubtful that the act of congress, if within its power, is applicable in this case. The act makes it unlawful to pay any seaman wages in advance, makes such payment a misdemeanor, and in terms provides that such payment shall not absolve the vessel or its master or owner for full payment of wages after the same shall have been actually earned. And further, it declares that the section making these pro- visions shall apply as well to foreign vessels as to vessels of the United States, provided that treaties in force between the United States and foreign nations do not conflict. It is true that the title of the act of 1898 is "an act to amend the laws relating to American seamen," but it has been held that the title is no part of a statute, and can- not be used to set at naught its obvious meaning. The extent to which it can be used is thus stated by Chief Justice Marshall in United States V. Fisher, 2 Cranch, 358, 386, 2 L. ed. 304, 313: "Neither party contends that the title of an act can control plain words in the body of the statute ; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid c^n be derived ; and, in such case, the title claims a degree of notice and will have its due share of consideration." See also Yazoo & M. Valley R. Co. v. Thomas, 132 U. S. 174, 188 298 CONSULAR CASES 33 L. ed. 302, 307, 10 Sup. Ct. Rep. 68 ; United States v. Oregon & C. R. Co. 164 U. S. 526, 541, 41 L. ed. 541, 545, 17 Sup. Ct. Rep. 165; Price V. Forrest, 173 U. S. 410, 427, 43 L. ed. 749, 755, 19 Sup. Ct. Rep. 434; Endlieh, interpretation of statutes, § § 58, 59. When, as here, the statute declares, in plain words, its intent in reference to a prepayment of seamen's wages, and follows that declaration with a further statement that the rule thus annoimced shall apply to foreign vessels as well as to vessels of the United States, it would do violence to language to say that it was not applicable to a foreign vessel. But the main contention is that the statute is beyond the power of congress to enact, especially as applicable to foreign vessels. It is urged that it invades the liberty of contract which is guaranteed by the 14th amendment to the federal constitution, and reference is made to Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431, in which we said: "The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will ; to earn his livelihood by any lawful calling ; to pursue any live- lihood or avocation, and for that purpose , to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. ' ' Further, that even if the contract be one subject to restraint under the police power, that power is vested in the states, and not in the general government, and any restraint, if exercised at all, can only be exercised by the state in which the contract is entered into; that the only jurisdiction possessed by congress in respect to such matters is by virtue of its power to regulate commerce, interstate and foreign ; that the regulation of commerce does not carry with it the power of controlling contracts of employment by those engaged in such service, any more than it includes the power to regulate con- tracts for service on interstate railroads, or for the manufacture of goods which may be intended for interstate or foreign commerce; and, finally, that the validity of a contract is to be determined by the law of the place of performance, and not by that of the place of the contract; that the contract in this case was one entered into in the United States, to be performed on board a British vessel, which is im- doubtedly British territory, and therefore its validity is to be deter- mined by British law, and that, as conceded in the question, sustains its validity. We are unable to yield our assent to this contention. That there 299 CONSm^AR CASES is, generally speaking, a liberty of contract which is protected by the 14th amendment, may be conceded; yet such liberty does not extend to all contracts. As said in Frisbie v. United States, 157 U. S. 160, 165, 39 L. ed. 657, 659, 15 Sup. Ct. Rep. 586, 588: ""While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all con- tracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets; to the minor the right to assume any obligations, except for the neces- saries of existence ; to the common carrier the power to make any con- tract releasing himself from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, everj-- citizen has a right freely to contract for the price of his labor, services, or property." And that the contract of a sailor for his services is subject to some restrictions was settled in Robertson v. Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326, in which § § 4598 and 4599, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 3115, 3116), in so far as they re- quire seamen to carry out the contracts contained in their shipping articles, were held not to be in conflict with the 13th amendment, and in which a deprivation of personal liberty not warranted in respect to other employees was sustained as to sailors. We quote the following from the opinion (p 282, L. ed. p. 718, Sup. Ct. Rep. p. 329) : "From the earliest historical period, the contract of the sailor has been treated as an exceptional one, and involving, to a certain ex- tent, the surrender of his personal liberty during the life of the con- tract. Indeed, the business of navigation could scarcely be carried on without some guaranty, beyond the ordinary civil remedies upon contract , that the sailor will not desert the ship at a critical moment, or leave her at some place where seamen are impossible to be obtained — as Molloy forcibly expresses it — *to rot in her neglected brine.' Such desertion might involve a long delay of the vessel while the mas- ter is .seeking another crew, an abandonment of the voyage, and, in some cases, the safety of the ship itself. Hence, the laws of nearly all maritime nations have made prov-ision for securing the personal at- tendance of the crew on board, and for their criminal punishment for desertion or absence without leave during the life of the shipping articles." If the necessities of the public justify the enforcement of a sailor'!? 300 CONSULAR CASES contract by exceptional means, justice requires that the rights of the sailor be in like manner protected. The story of the wrongs done to sailors in the larger ports, not merely of this nation, but of the world, is an oft-told tale, and many have been the efforts to protect them against such wrongs. One of the most common means of doing these wrongs is the advancement of wages. Bad men lure them into haunts of vice, advance a little money to continue their dissipation, and, having thus acquired a partial control, and by liquor dulled their faculties, place them on board the vessel just ready to sail and most ready to return the advances. When once on shipboard, and the ship at sea, the sailor is powerless and no relief is availing. It was in order to stop this evil, to protect the sailor, and not to restrict him of his liberty, that this statute was passed. And, while in some cases it may operate harshly , no one can doubt that the best interests of seamen as a class are preserved by such legislation. Neither de we think there is in it any trespass on the rights of the states. No question is before us as to the applicability of the statute to contracts of sailors for services wholly wdthin the state. "We need not determine whether one w^ho contracts to serve on a steamboat be- tween New York and Albany, or between any two places within the limits of a state, can avail himself of the privileges of this legislation, for the services contracted for in this case were to be performed be- yond the limits of any single state, and in an ocean voyage. Contracts with sailors for their services are, as we have seen, exceptional in their character, and may be subjected to special restrictions for the purpose of securing the full and safe carrying on of commerce on the water. Being so subject, whenever the contract is for employment in commerce, not wholly within the state, legislation enforcing such restrictions comes within the domain of congress, which is changed with the duty of protecting foreign and interstate commerce. Finally, while it has often been stated that the law of the place of performance determines the validity of a contract (London Assur. Co. V. Companhia de Moagens do Barreiro, 167 U. S. 149, 160, 42 L. ed, 113, 120, 17 Sup. Ct. Rep. 785), yet that doctrine does not con- trol this case. It may be remarked, in passing, that is does not ap- pear that the contract of shipment or the advance payment were made on board the vessel . On the contrary, the stipulated fact is that the "seamen were engaged in the presence of the British vice- consul at the port of New York." The wrongful acts were, therefore, done on the territory and within the jurisdiction of the United States. It is undoubtedly true that, for some purposes, a foreign ship is to be treated as foreign territory. As said by Mr. Justice Blackburn, in Queen v. Anderson, L. R. 1 C. C. 161, "a ship which bears a nation's 301 CONSULAR CASES flag is to be treated as a part of the territory of that nation. A ship is a kind of floating island." Yet when a foreign merchant vessel comes into our ports, like a foreign citizen coming into our territory, it subjects itself to the jurisdiction of this coimtry. In The Ex- change V. M'Faddon, 7 Cranch. 116, 136, 146, 3 L. ed. 287, 293, 297, this court held that a public armed vessel in the service of a sovereign at peace with the United States is not within the ordinary jurisdiction of our tribimals while within a port of the United States. In the opinion, by Chief Justice Marshall, it was said that "the jurisdiction of the nation within its OAvn territory is necessarily exclusive and ab- solute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either ex- press or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction ; but, if understood, not less obligatory." And again, after holding it "to be a principle of public law that national ships of war, entering the port of a friendly power, open for their reception, are to be considered as exempted, by the consent of that power, from its jurisdiction," he added: "With- out doubt, the sovereign of the place is capable of destroying this im- plication. He may claim and exercise jurisdiction, either by employ- ing force, or by subjecting such vessels to the ordinary tribunals." Again, in Wildenhus's case, 120 U. S. 1, sub nom. Mali v. Hud- 8on,County Common Jail Keeper, 30 L. ed. 565, 7 Sup. Ct. Rep. 385, in which the jurisdiction ©f a state court over one charged with mur- der, committed on board a foreign merchant vessel in a harbor of the state, was sustained, it was said by Mr. Chief Justice Waite (pp. 11. 12, L. ed. p. 567, Sup. Ct. Rep. p. 387) : "It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some dif- ferent understanding or agreement. * * * From experience, how- ever, it was foimd long ago that it would be beneficial to commerce if the local government would abstain from interfering with the inter- nal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among them- selves. And so, by comity, it came to be generally understood among 302 CONSULAR CASES civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquil- ity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged, as the laws of that nation or the interests of its commerce should require. But if crimes are committed on board of a character to disturb the peace and tranquility of the country to which the ves- sel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. ' ' It follows from these decisions that it is within the power of congress to prescribe the penal provisions of § 10, and no one within the jurisdiction of the United States can escape liability for a viola- tion of those provisions on the plea that he is a foreign citizen or an ofificer of a foreign merchant vessel. It also follows that it is a duty of the courts of the United States to give full force and effect to such provisions. It is not pretended that this government can control the action of foreign tribunals. In any case presented to them, they will be guided by their own views of the law and its scope and effect; but the courts of the United States are bound to accept this legislation, and enforce it whenever its provisions are violated. The implied con- sent of this government to leave jurisdiction over the internal affairs of foreign merchant vessels in our harbors to the nations to w^hich those vessels belong may be withdrawTi. Indeed, the implied consent to permit them to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn, it may be extended upon such terms and conditions as the government sees fit to impose. And this legislation, as plainly as words can make it, imposes these con- ditions upon the shipment of sailors in our harbors, and declares that they are applicable to foreign, as well as to domestic vessels. Con- gress has thus prescribed conditions which attend the entrance of foreign vessels into our ports, and those conditions the courts are not at liberty to dispense with. The interests of our oa\ti shipping require this. It is well said by counsel for the government in the brief which he was given leave to file : "Moreover, as 90 per cent, of aU commerce in our ports is con- ducted in foreign vessels, it must be obvious that their exemption from these shipping laws will go far to embarrass domestic vessels in obtain- ing their quota of seamen. To the average sailor it is a consideration while in port to have his wages in part prepaid; and if, in a large port like New York, 90 per cent of the vessels are permitted to prepay 303 CONSULAR CASES such seamen as ship ■upon them, and the other 10 per cent, being American vessels, cannot thus prepay, it -v^ill be exceedingly difficult for American vessels to obtain crews. This practical consideration, presumably, appealed to congress and fully justified the provision herein contained." "We are of the opinion that it is within the power of congress to protect all sailors shipping in our ports on vessels engaged in foreign or interstate commerce, whether they belong to citizens of this country or of a foreign nation ; and that our courts are bound to en- force those provisions in respect to foreign, equally with domestic, vessels. The questions, therefore, certified by the court of appeals, will each be answered in the affirmative. Mr. Justice Harlan concurred in the judgment. PAUL REVEEE, THE, (1882, U. S.) 10 Fed. Rep. 156. Brown, District Court. 1. Seamen's Wages — Eftect or Consul's Dischakoe. Where a consul has by statute jurisdiction to grant a discharge, his certifi- cate thereof, duly authenticated, is a bar to a seaman's claim for wages subse- quent to his discharge. 2. Same. Where, upon the proceedings before the consul on a charge of criminal mis- conduct, it does not appear that any question was made concerning the seaman's wages at the time of his discharge, the seaman is not precluded from claiming any wages which may, upon the merits, appear to be due to him. 3. Seaman — Punishment koe Misconduct. Double punishment through loss of wages, in addition to confinement on board, is not to be imposed except in cases where the seaman is incorrigibly dis- obedient, and his confinement is necessary to the safety of the ship, in consequence of his own dangerous character. 4. Same — Double Punishment When Not Imposed — Case Stated. Where tlie cook (colored) shipped for a voyage from New York to Yoko- hama and bark, and when two months out, in an affray with the steward, fired two shots of a small pistol, by which the steward received a flesh wound in the wrist, and it appeared that the steward was a man of a quarrelsome and dangerous character ; that the affray was the result of several previous quarrels and chal- lenges to fight; and it appearing that aside from this affray the cook was neither quarrelsome nor dangerous in his ordinary behavior, and had previously applied to the captain for protection against the steward; and that immediately after firing he was arroHted without resistance, put in irons by (157) ^^^ orders of the master, and kept in confinfment during the following four months until after the arrival at Yokohama, and that his conduct during this time was good, and 304 CONSULAR CASES permission to return to duty had been repeatedly sought from the captain by him- self and others of the crew, held, that the cook was entitled to his wages up to the time of his discharge at Yokohama. In admiralty. Action for seaman's wages. This action was brought by the libellant (colored) to recover his wages as cook on board the ship Paul Revere, on her voyage from New York to Yokohama and back, from June 24 to September 24, 1879. On Sunday morning, September 1, 1878, about two months after the commencement of the voyage, an aifray between the cook and the steward took place in the galley, in the course of which the cook fired two shots of a small pistol at the steward, by one of which the steward was wounded in the wrist. The libellant was immediately seized, put in irons, and kept so, for the most part, as the mate testi- fied, until about a month before reaching Yokohama, when, being sick, the irons were removed from him, though he was still kept under restraint. The vessel arrived at Yokohama on December 24, 1878, and on the sixth of January the captain made a complaint in writing against the libellant before the consul of an assault with a deadly weapon. Upon the following day the libellant was brought before the consul, who, on the seventh, eighth and ninth of that month, ex- amined the steward, the first and second officers, and the carpenter of the vessel. On the thirtieth of January he rendered a decision as follows : ' ' After careful consideration of the evidence in this matter, and in view of the fact that the weapon used by the accused is scarcely more than a toy, and that it would have been very difficult with it to have made a dangerous wound, and that it therefore hardly comes within the definition of a 'dangerous weapon,' and the accuser exhibiting himself as a man of irascible temper, and the evidence showing that the offence charged against the accused was the result of an altercation, one of many between the same parties, and that the accuser has been discharged the ship by consent of the master, the latter considering him a troublesome and violent man, and that the accused has now been a long time in confinement : "I am of opinion that the offence charged is not of such a serious char- acter as to warrant me in subjecting the government to the expense of transpor- tation of the accused and that of the ^vitnesses to the United Staes, and of his trial there, and I consider that he has been sufficiently punished already. "It i» therefore ordered that he discharged from arrest. (Signed) "Thos. B. "Van Buren, Consul General. "Yokohama, January 31, 1879. (158) "On being discharged from arrest, Jackson expressed an unwilling- ness to return on board ship and asked for his discharge, and the captain con- senting, he was accordingly discharged, the ship paying into the consulate one month's extra wages. (Signed) "Thos. B. Van Buren, Consul General. "January 31, 1879." 305 CONSULAR CASES The proceedings before the consul were duly certified and read upon the trial. The consul's certificate of the discharge of Jackson, "according to law ," on January 31, 1879, was also proved, together with the receipt by the consul of one month's extra wages. Alexander & Ash, for libellant. Henry Heath, for claimant. BROWN, D. J. The consul at Yokohama had jurisdiction of proceedings to discharge the seaman upon his own application and with the master's consent. His certificate of such a discharge, duly proved and authenticated, is therefore conclusive, and bars any claim by the libellant to subsequent wages. Coffin v. Weld, 2 Low. 81 ; Lamb v. Briard, 5 Abb. Adm. 367 ; Tingle v. Tucker, Id. 939. The proceedings before the consul do not show that any question was made before him concerning the wages which might be due to the libellant up to the time of his discharge, or that any inquiry or consideration was given to that subject. The libellant is, therefore, not precluded by those proceedings from claiming anything to which, upon the merits, he may be entitled. Hutchinson v. Coombs, 1 Ware, 65 ; The Nimrod, Id. 9. The affray on the morning of September 1st was the result of repeated quarrels between the cook and the steward during the two months previous. The steward is shown to have been of a quarrel- some disposition, and he was discharged at Yokohama. According to the libellant 's account of the affray upon the trial, after high words between them in the galley the steward had rushed out, and presently came back to the door of the galley "with one hand in his pocket, hold- ing the handle of a Imife, recognized by the cook as having a long blade, and with violent language challenged him to come out and fight; that the cook asked him what he had in his pocket, and told him to go away ; that the steward then rushed towards him ; dnd that the libellant thereupon, believing his life in danger, standing in the doorway of his own room leading from the galley, fired at him twice with a pistol. The steward testified before the consul that the cook had first challenged him to fight, and that he had afterwards (159) come to the door of the galley and renewed the challenge; that the instrument in his hand was a can-opener and not a knife. When the mate and captain, upon hearing the pistol shots, immediately went to the galley, no resistance was made by the cook; but he said he was sorry he had not killed him. No complaint was made of the subse- quent conduct of the cook, nor did he at any time show any evidences of an ugly disposition. Several times during his confinement he re- quested to be allowed to go on duty. Similar requests in his behalf were made by others of the crew, none of which were acceded to by 306 CONSULAR CASES the captain. The pistol was not owned by Jackson, but had been given to him to be exchanged abroad for some foreign article. It was scarcely capable of inflicting a serious wound. The ball from it lodged in the steward's wrist, but inflicted only a flesh wound, which disabled his hand for two days only. The captain was examined before the consul, and his deposition was also taken in this case. From these it does not appear that he ever instituted any inquiry into the particular causes of the affray, but he was familiar with the previous quarrelling between the cook and the steward, as he had shortly before, when appealed to by the cook for some protection against the steward, told him to get along as well as he could. From the violent character of the steward it is not certain that the cook did not have reasonable cause to believe himself in danger when the steward approached him from the galley door before he fired ; but the fact that he had a pistol at hand, ready for use, and his language when arrested immediately after firing, show, not only that he was at the time in great passion, but also that his act was not merely an act of self-defense. The circumstances, while not sufiicient to furnish a justification, do show much palliation in the degree of his offense. His long subsequent confinement by the master until the arrival at Yokohama was considered by the consul in his decision a sufficient punishment. In my judgment it was alto- gether more than was warranted at the hands of the master, having reference only to the character of the cook himself, and it may be that the confinement of the cook till arrival at Yokohama was quite as much an act of prudence and protection to him, in consequence of the quarrelsome and dangerous character of the steward, and the captain 's belief that it was necessary to keep them apart. Aside from this consideration, the evidence does not show sufficient in the general behavior of the cook to warrant the prevention of his subsequent (160) return to duty, as he desired. To inflict upon him, under these cir- cumstances, loss of wages also, would be imposing a double punish- ment. In the case of Brower v. The Maiden, Gilp. 296, Hopkinson, J., says : ' ' When seamen are confined on board for any misconduct or diaobedience, has it ever been pretended that their wages stop, or are therefore forfeited during confinement? I know of no such case. Their imprisonment is their punishment, and forfeiture of wages has not been added to it." See, also, Bray t. The Ship Atlanta, Bee, 48; Wood v. The Nimrod, Gilp. 83, 89; Jay y. Almy, 1 Wood k M. 262; Thorn v. White, 1 Pet. Ad. 168, 175. It is only where a mariner is incorrigibly disobedient, and his confinement, in consequence of his own dangerous character, is neces- 307 CONSULAR CASES sar>' to the safety of the ship, that a forfeiture of wages has also been imposed. It would be not only unjust to the seaman, but highly im- politic and dangerous as a precedent, to permit the vessel to make a profit by the confinement of seamen on board except in cases of this description. The proofs in this case fall far short of that, and the libellaut should, therefore, recover his wages up to January 31, 1879, at the rate of $30 per month, less $60 advanced to him, with costs. PETERSON'S WILL, IN RE, (1906, U. S.— Denmark) 101 N. Y. Supp. 285; 51 Misc. 367. Noble, Surrogate's Court, New York. Ambassadors and Consuls — Consular Powees. Under the treaty of April 26, 1826 (8 Stat. 342, art. 8), with the kingaom of Denmark, the Danish consul cannot appear for an infant party to a proceeding for the probate of a last will, so as to give the surrogate's court jurisdiction of Buch party, without the issuance of a citation. In the matter of the probate of the last will of Valborg J. Peter- son. Citation issued, Abbott & Coyne, for proponent. NOBLE, S. This is an application by a consul of the kingdom of Denmark to the United States of America, in the state of New York, for the probate of the last will and testament of a testatrix who. at the time of her death, was a subject of the kingdom of Den- mark ; the sole executor named in the will having died before the testatrix. The sole heirs at law and next of kin are the mother, a brother, a sister, and a nephew of testatrix, all of whom reside in Copenhagen, Denmark, and are subjects of that kingdom. Under the "most favored nation clause" in the treaty of April 26. 1826" (8 Stat. 342, art. 8), between the United States of Amer- ica and the kingdom of Denmark, the Danish consul claims the right to represent the parties in interest in this proceeding and to waive the i.ssuance and service of citation in their behalf. In the case of adult parties I do not question liis right to appear to execute the necessarj' waiv(;rs and consents. However, Einer Bundgaard, nephew of the testatrix , is an infant over the age of 14 years. Under the laws of this state the only way in which a surrogate's court can ob- tain jurisdiction over the estate of an infant is by the issuance and service of a citation in the manner prescribed by the statutes. In the case of personal property, in the treaty between the United States and the king of Italy, article 22 of the commercial treaty of 1871 (17 Stat. 856), provides: "The citizens of each of the contracting parties shall have power to disposfl 308 CONSULAR CASES of their personal goods vpithin the jurisdiction of the other by a sale, donation, testament or otherwise, and the representatives being citizens of the other party, shall succeed in their personal goods, whether by testament or ab vitestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein said goods are, shall be subject to pay in like cases. ' ' Under that section the right of a consul to take possession, in be- half of subjects of their respective countries, of personal property, and to transmit it to such countries for distribution in accordance with the laws thereof, is unquestionable. Again, under the "most favored nation clause," the treaty of 1853 between the Argentine Republic and the United S;tates, pro- vides as follows (10 Stat. 1009, art. 9) : (286) "I^ ^°y citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul general or consul of the nation to which the deceased belonged, or the representa- tive of such consul general or consul in his absence, shall have the right to inter- vene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heiri. " Under this treaty the consul general, or, in his absence, the con- sul, is given the right "to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs. ' ' The provisions of these several treaties relate to personal property only, and the cases quoted in the brief of the learned counsel for the proponent herein, to wit. Matter of Tartaglio, 12 Misc. Rep. 245, 33 N. Y. Supp. 1121, Matter of Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119, Matter of Lobrasciano, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040, Matter of Davenport, 43 Misc. Rep. 573, 89 N. Y. Supp. 537, as well as the Massachusetts case of in re Wyman, reported in 77 N. E. 379, are all administration cases, and therefore decide only the right of a foreign consul to take possession of a decedent 's personal property under the provisions of the treaty with his country. I have found no case reported in which the right of a consul to waive the rights of an infant in a proceeding in a surrogate's or other court of this state is passed upon, and as it is not expressly covered by the treaty between the United States and the kingdom of Denmark, or any other country, the laws of the state of New York must govern. These laws do not admit of an infant waiving any of its rights, and, of course, no one else has any authority to do what the infant itself could not do. Under these circumstances the infant party in this pro- 309 CONSULAR CASES ceeding must be brought under the jurisdiction of the court through the medium of a citation properly issued and served. Let eit^ition issue accordingly. PIONEER. THE, (1863. U. S.— Austria) Blatchf. Prize Cases 666; Fed. Cases 11,175. Nelson, Circuit Court. [Trade of consul, merchant in enemy's country will not be pro- tected from interruption by seizure and condenmation of his property as enemy property. — Ed.] POOL V. WELSH, (1830, U. S.) Fed. Cases 11,269. HopJxinson, District Court. [Payment of three months wages in case of discharge of seamen. Right of consul to commission. — Ed.] POOLE Y V. LUCO, (1896, U. S.) 72 Fed Rep. 561. Wellborn, Circuit Court. WELLBORN, District Judge. One of the defendants, Juan M. Luco, pleads to the jurisdiction of the court, and the question now to be determined is as to the sufficiency of this plea. The suit is brought by the complainant, a subject of Great Britain, against said Luco and various other parties, alleged to be citizens of the United States, to foreclose a mortgage executed by said Luco and others of the de- fendants, on certain real estate, situated in the county of San Diego, in the Southern District of California. Said Luco denies that he is a citizen of the United States, and alleges that he is a citizen of Chile, and the duly-appointed and recognized consul-general of Chile for the L'nited States, residing in the city of San Francisco, state of Cali- fornia. Jurisdiction, if it exists at all must rest upon one or more of the following grounds: Fir.st, diverse citizenship of the parties; second, consular status of defendant Luco; third, location in this district of the res, — the mortgaged property. These grounds I will examine in the order of their statement. 1. The question whether or not a circuit court has jurisdiction of a case, on the ground that both parties are aliens, has been author- itatively and often decided in the negative. Montalet v. Murray, 4 Cranch, 46; Hodgson v. Bowerbank, .5 Cranch, 304; Prentiss v. Bren- 310 CONSULAR CASES nan, Fed. Cas. No. 11, 385 ; Jackson v. Twentyman, 2 Pet. 136 ; Rateau V. Bernard, Fed. Cas. No. 11, 579; Hinckley v. Byrne, 1 Deady, 224, Fed Cas. No. 6, 510. In this last case, Deady, J., used the following language: "It has long since been settled that an action between aliens only cannot be maintained in the circuit court; that the language of the judiciary act giv- ing jurisdiction where * an alien is a party ' must be restrained within the terms of the constitution, which only 'extends the judicial power' to an action between an alien and a citizen of a state of the United States. "When both plaintiff and defendant are aliens, the judicial power of the United States does not extend to the case." The controversy in the case at bar being between aliens, there is not such diverse citizenship as brings the case within the federal jurisdiction. (662) 2. Has the court jurisdiction because of the consular status of the defendant 1 In his opening brief, plaintiff contends that "the circuit court of the United States has jurisdiction, concurrent with the district court, in cases affecting consuls;" citing Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. 407. I have examined the case cited carefully, and, so far from supporting, it seems to me antagonis- tic to complainant's contention. In that case the plaintiff was a citizen of New York, and the defendant consul, at the port of New York, for the kingdom of Norway and Sweden; but the latter 's citizenship did not aflBrmatively appear, either in the pleadings er elsewhere in the record. The ruling of the court was to the effect that, inasmuch as the complainant was a citizen of New York, jurisdiction must de- pend upon the alienage of the defendant; and, further, that such alienage could not be inferred from the fact that the defendant held and exercised the office of consul of a foreign government, and, there- fore, that the record "did not present a case which the circuit court had authority to determine. ' ' Since the consular character of the de- fendant was one of the prominent facts in the case, the decision neces- sarily holds that the fact of a defendant being a consul of a foreign government does not confer jurisdiction upon the circuit court. The opinion, however, declares that, where there is a controversy between a citizen and an alien, jurisdiction is not defeated by the fact that the alien happens to be the consul of a foreign government. The other ease cited by the plaintiff (Valarino v. Thomson, 7 N. Y. 576) seems to me to be also strongly against his contention. While the points there decided were : "A consul of a foreign government, residing in the United States, is not liable to be sued in the state courts. — The fact that the consul is impleaded with a citizen upon a joint contract will not give jurisdiction to the state courts," — ^yet the 311 CONSULAR CASES decision was based upon the ground that the district court of the United States had jurisdiction of the cause, exclusive of the state courts. Nowhere in the opinion is there even an intimation of juris- diction in the circuit court. In Lorway v. Lousada, 1 Lowell, 77, Fed. Cas. No. 8, 517, also cited by the plaintiff, the action was pending in the district court, and the decision was simply to the effect that that court, not the circuit court, had jurisdiction. The first paragraph of the syllabus is as follows : "The district court has jurisdiction of a suit brought by an alien against the consul of his nation, residing within the district, to recover the amount of of- ficial fees improperly exacted." The Havana, 1 Sprague, 402, Fed. Cas. No. 6, 226, another of plaintiff's citations, was a case also in the district court, and in admiralty. The discretionary power to hear and determine a cause, there asserted, rests upon a rule of law peculiar to admiralty, and confined to the district court. In Lorway v. Lousada, supra, the rule is expressed thus : ' ' Courts of admiralty, it is true, exercise a considerable latitude of discre- tion in entertaining suits between strangers; and they are guided to some ex- tent in the particular case by the nature of the controversy, whether it involves a question of general law or only the local law of the foreign country. This dis- tinction, perhaps, arose out of the great diffidence with which courts (563) of admiralty in England were formerly accustomed to approach questions of local law, whether domestic or foreign. However this may be, it is now the better opinion, in this country at least, that where circumstances make it either neces* sary or highly convenient that the jurisdiction should be retained, as, for in- stance, when the voyage of a foreign vessel is broken up here, a court of ad- miralty will take the case, whether the law which it will be bound to administer happen to be local or general. In short, the question is one of discretion in the exercise of an admitted power, and not of the power itself. See, per Taney, C. J., Taylor v. Carryll, 20 How. 611; The Havana, 1 Sprague, 402, Fed. Cas. No., 6,226; The Wilhelm Frederick, 1 Hagg. Adm. 138; Patch v. Marshall, 1 Curt. 462, Fed. Cas. No. 10,79.3; The Jerusalem, 2 Gall. 191, Fed. Cas. No. 7,293; notes to 2 Pars. Mar. Law. bk, 3, c. 3. And the remark of Mr. Justice Curtii in Patch v. Marshall, 1 Curt. 45o, Fed. Cas. No. 10,793, is to be understood, I have no doubt, in reference to a court of admiralty and its jurisdiction, which alone was involved in that case. ' ' No case has been brought to my attention where it has been held, or even intimated, that the consular character of a party to the con- troversy gives jurisdiction to the circuit court. Nor do I believe that such a precedent can be found. There is no statutory provision conferring upon the circuit court jurisdiction on the ground indicated, while the jurisdiction seems to be granted, in terms, to the district courts. Rev. St. U. S. Sec. 563, subd. 18. 312 CONSULAR CASES In Bors v. Preston, supra, the supreme court, at page 263, 111 U. ^. and page 407, 4 Sup. Ct., says : * ' But as this court and the district courts are the only courts of the Union which, under the constitution or the existing statutes, are invested with jurisdic- tion, without reference to the citizenship of the parties, of suits agains consuls, or in which consuls are parties, and since the circuit court was without jurisdic- tion, unless the defendant is an alien or a citizen of some state other than New York, it remains to consider whether the records shows him to be either such citizen or an alien." See, also, Lorway v. Lousada, supra. Whether the state courts have concurrent jurisdiction with the district courts in suits against consuls since the repeal of paragraph 8 of section 711 of the revised statutes has not been definitely adjudi- cated. Froment v. Duclos, 30 Fed. 385. Plaintiff, in his concluding brief, suggests that although the supreme court, in Bors. v. Preston, has declared that subdivision 8 of section 711 of the revised statutes is repealed, ' ' yet we find it to-day in the second edition of the revised statutes," etc. While it is true that the subdivision of the section in question is still found in the second edition of the revised statutes, yet it is printed in italics, thus denoting that the subdivision is re- pealed. See preface to second edition of the revised statutes. How- ever, it is not necessary, in this case, to decide either upon the juris- diction of the state courts or the federal district courts. Whatever may be the law with reference to these courts, I am clearly of opinion that the circuit court has not jurisdiction of a case because of the consular character of the defendant. 3. The remaining question is: Does the situation, in this dis- trict, of the mortgaged property, give jurisdiction to the circuit court ? To my mind, clearly not. Mossman v. Higginson, 4 Dall. 11. In that case the suit was brought to foreclose a mortgage. (564) Com- plainant was a subject of Great Britain. The record did not dis- close the citizenship of the defendants. The jurisdiction of the court was objected to , because of this latter fact. Complainant below urged that, since the suit was to foreclose a mortgage, the mere alienage of one of the parties was sufficient. To this it was replied by the de- fendants : ' ' The judiciary act was only intended to carry the constitution into effect, and cannot amplify or alter its provisions. The constitution nowhere gives jurisdiction (nor has any judge ever countenanced the idea) in suits between alien and alien. It is not an exception to the rule that the bill in equity is in the nature of a pro- ceeding in rem, for there cannot be a foreclosure of the equity of redemption without a personal suit." 313 CONSULAR CASES The second paragraph of the syllabus of the court is as follows : ' ' In proceedings in a federal court in equity to foreclosure, it is as neces- sary to describe the parties as in any other suit." The opinion of the court was brief, and as follows : "The decisions on this subject govern the present case; and the eleventh section of the judiciary act can and must receive a construction, consistent with the constitution. It says, it is true, in general terms, that the circuit court shall have cognizance of suits 'where an alien is a party'; but as the legislative power of conferring a jurisdiction on the federal courts is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law as to meet the case 'where, indeed, an alien is one party,' but a citizen is the other. Neither the constitution nor the act of congress regards, on this point, the subject of the suit, but the parties. A description of the parties is therefore in- dispensable to the exercise of jurisdiction." It will be observed that the judiciary act of 1789, as stated by the court in the opinion last quoted, provided "that the circuit court shall have cognizance of suits 'where an alien is a party ;' " yet, under that provision, the court, in view of the constitutional provision limiting jurisdiction to suits between citizens and foreigners, held that jurisdiction did not exist, except "where, indeed, an alien is one party, but a citizen is the other." The expression found in the judiciary act of 1789, "where an alien is a party," is omitted from the judiciary acts of 1875, 1887, and 1888, and the cases covered by said expression, as judicially construed, provided for in the words "or a controversy between citizens of a state and foreign states, citi- zens, or subjects." Section 8 of the judiciary act of March 3, 1875, referred to in complainant's brief and above cited, entitled "an act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of cases from state courts, and for other purposes," providing for service upon absent defendants in suits to enforce liens, etc., does not purport to confer jurisdiction where it would not otherwise exist, but simply prescribes certain procedure in cases where jurisdiction does exist; or, more specifically, where a Buit is within the juri.sdiction of the court, and the object of the suit is to enforce a lien, etc., and some of the defendants are absent from the district within which the suit is brought, then the section is applicable, and simply provides a mode of service on such defendants. (565) The case of "Wheelwright v. Transportation Co. 50 Fed. 709, cited by complainant, does not conflict with this construction of said act, because in that case, which was brought in Louisiana, there was diverse citizenship, the plaintiff being a citizen of the state of New York, and the defendant a citizen of the state of New Jersey. While it is true the opinion speaks of said section 8 as conferring juris- 314 CONSULAR CASES diction, yet is must be remembered that the question of jurisdiction, accurately speaking, was not before the court, because, admittedly, there was such diverse citizenship as gave jurisdiction. The real question was whether or not, admitting the parties to be citizens of different states, the defendants could be sued in a district other than that of his own or plaintiff's residence. This was a question, not of jurisdiction, but simply involving a matter of personal privilege of the defendant. I am of the opinion that the plea of defendant Luco is sufficient in law, and the same will be allowed. POPPING V. THE SIRIUS, see The Sirius. POTTER V. OCEAN INS. CO., (1837, U. S.) 3 Sumn. 27; Fed. Cases 11, 335. Story, Circuit Court. (42) (Extract) In relation to the item for the survey at Tampico, there are three objections stated in the exceptions to its allow^ance. First, that the consul had no jurisdiction to order a sur- vey; and that it should have been ordered by a maritime court. It is certainly the usual practice of courts of admiralty, and I deem it a very useful and beneficial practice, to order surveys in cases of this sort, as a matter of admiralty and maritime jurisdiction within their cognizance, and in my judgment, rightfully within their cogniz- ance.* But I am not aware, that it has ever been held to be indispensible to the validity of a survey, that it should eminate from such a source. The object of a survey is to assist the judgment of the master, as to his proceeding to repair damage, or to sell (43) the ship. It is de- signed to protect him in the fair discharge of his difficult and often critically responsible duty in great emergencies, by giving him the aid of the opinion of other men of sound judgment, intelligence, and skill in naval affairs. Indeed, this course is so universally adopted in practice, that a master, who should venture to deviate from it, would be treated as guilty of some improvidence, if not of gross rashness and neglect of duty. A survey is a common public document, looked to both underwriters and owners, as affording the means of ascertaining upon the very spot, at the very time, the state and condition of the * This jurisdiction seems incidentally affirmed in the case of Dorr v. Pa- cific Insurance Company, 7 Wheaton's R. 612, 613, and of Janney v. Columbian Insurance Company, 10 Wheaton's R. 411, 418. Among my own M8S. is a copy of a decree of the admiralty court at Boston, in 1745, before Judge Auchmuty, in which, upon petition of the masters to survey a vessel, (The Three Marys), she was condemned, and ordered to be sold as unseaworthy. 315 CONSULAR CASES ship, and other property at hazard. In some policies, as for example, ■when what is technically called the "rotton clause" is inserted, such a document seems indispensable; as the survey may amount to a discharge of the imderwTiters.^ But although surveys are and may be thus ordered by courts of admiralty, I am not aware, as I have already said, that this is an indispensable requisite. On the contrary, a survey may be made upon the mere private application of the master directly to the sur- veyors ; and there does not seem any good reason, why, if an American consul should interpose in behalf of the master, and with a view to assist him, should appoint the surveyors at his request, and thereby sanction their competency to the task, such an appointment should be deemed objectionable. As a known public officer, the act of a consul would, even if he had no express or implied authority to make the appointment ex officio, be deemed an act of higher authority, and more entitled to public confidence, than that of the master him- self, and might be an inducement to the surveyors to undertake the duty with more promptitude and responsibility. PRESIDENT, THE, (1804, Great Britain— TJ. S.) 5 Rob., C. 277. Sir William Scott, High Court of Admiralty. (279) (Extract) It has appeared, I think, in other cases, to be the disposition of the American government to confer the privileges of American navigation on vessels occupied by their consuls in foreign states. That government has, undoubtedly, a perfect right to grant such a privilege for the purposes of their own navigation; at the same time, that this country is also at liberty to apply, what we consider as the more correct principle of the law of nations, so far as third parties are concerned. RABASSE. SUCCESSION OF, (1895, U. S.— France) 17 So. >>r,7; 47 La. An. ]4.'J4; 49 Am. St. Rep. 433. Miller, Supreme Court of Louisiana. Appeal from district court, parish of Orleans; Thomas C. W. Ellis, judge. In the matter of the succession of Eugene Rabasse. From a judgment dismissing the intervention of a delegate to represent cer- tain French heirs, the intervener appeals. Reversed. ' See cases on this clause — Door v. Pacific Insurance Company, 7 Wheat- on's R. .'582. Janney v. Columbian Insurance Company, 10 Wheaton's R. 411, 416 to 418. 1 Phillips' Insurance, 154, 158. 316 CONSULAR CASES J. Numa Au^stin, for delegate, etc., intervener, and third opponent, appellant. Theodule Buisson, Chretien, & Suthon, for at- torney for absent heirs, appellees. MILLER, J. The deceased, a resident of New Orleans, left heirs residing in France. Our treaty with that country provides, in case of death of any citizen of France in the United States with- out any testamentary executor by him appointed, the consul shall have the right to appear personally or by delegate in all proceedings on behalf of the absent or minor heirs. The stipulation is reciprocal, applying to estates of Americans dying in France. The French consul here appointed a delegate to represent the French heirs, and he applied for recognition to the civil district court in which the suc- cession was being administered. That court denied the application, and appointed an attorney for the absent heirs. From the judgment dismissing the intervention of the appellant, claiming recognition as delegate, he prosecutes this appeal. There is a motion to dismiss the appeal on the ground there is no pecuniary interest involved. There is involved a question of the construction and the execution of our treaty with France in respect to the interest of French heirs in a succession of over $100,000. The motion is denied. If the treaty is susceptible of the construction of the appellant, the result would be to avoid the appointment of the attorney for the absent heirs, and require the recognition of the ap- pellant as the delegate of the French consul. In our view, the stipu- lation in this treaty puts the delegate in the position of an agent of the French heirs, with the same effect as if he held their mandate to represent them as heirs. That was the manifest purpose, and the language of the treaty plainly expresses that intention. There is no power to appoint an attorney for absent heirs when the heirs are present or represented. Civ. Code, art. 1210 ; Robouam v. Robouam, 12 La. 73 ; Addison v. Bank, 15 La. 527. It is idle to call in question the competency of the treaty-making power, nor do we think any question can be raised that the subject of this treaty under discussion here is properly within the scope of the power. That subject is the rights of French subjects to be represented here by the consul of their country . On that subject the treaty provision is plain. The treaty by the organic law is the supreme law of the land, binding all courts, state and federal. Const. U. S. art. 6, par. 2; 1 Kent, Comm. 165; Ware v. Hylton, 3 Dall. 197; Prevost v. Greneaux, 19 How. 1; Hauenstein v. LjTiham, 100 U. S. 483, 488 ; Geofroy v. Riggs, 133 U. S. 264, 266, 10 Sup. Ct. 295; Treaty with France, 1853 (10 Stat. 999), art. 12: Treaty with Belgium, 1882 (21 Stat. 99). The treaty discloses no purpose to require our courts to appoint as the attorney for absent 317 CONSULAR CASES heirs the delegate of the French consul. Its purpose is accomplished by placing the delegate before the court, as representing the absent heirs, and precluding the appointment of any attorney to represent them. It is therefore ordered, adjudged, and de- (868) creed that the judgment of the lower court, dismissing the intervention of the dele- gate of the French consul, be avoided and reversed; and it is now ordered, adjudged, and decreed that said delegate be recognized as such delegate, authorized to represent the absent heirs in this suc- cession, and that the succession pay the costs. On Rehearing. (June 29, 1895) Our decision in this case affu*ms that the French heirs of this succession are to be deemed represented by the delegate of the French consul, with the same effect as if the delegate held their power. This view of the treaty to which our decision is confined, displaces the power of the lower court (exerted in ordinary cases) to appoint any attorney to represent the French heirs of this succession. The re- hearing is refused. REDMON V, SMITH, (1899, U, S.) 54 S. W. 636; 22 Tex. Civ. App, 323, Neill, Court of Civil Appeals of Texas, (Syllabus) The jurisdiction of actions by or against consuls, conferred on the federal courts by the federal constitution and by Eev, St, U, S, 1878 (2d Ed.) Sect. 563, 687, enacted in pursuance thereto, is not exclusive of the juris- diction of the state courts, there being no express provision to that effect. RELIANCE, THE, See One Hundred and Ninety-four Shawls. RICE v. AMES, (1900, U. S.) 180 U. S. 371. Brown, Supreme Court. (Extract) We do not wish however, to be understood as holding that, in extradition proceedings, the complaint must be sworn to by persons having actual knowledge of the offence charged. This would defeat the whole object of the treaty, as we are bound to assume that no foreign government possesses greater power than our own to order its citizens to go to another country to institute legal proceed- ings. This is obviously impossible. The ordinary course is to send fin officer or agent of the government for that purpose, and Rev. Stat. 318 CONSULAR CASES sec. 5271, makes special provision that "in every case of complaint and of a hearing upon the return of the warrant of arrest, any deposi- tions, warrants, or other papers offered in evidence, shall be admitted and received for the purpose of such hearing if they shall be properly and legally authenticated so as to entitle them to be received as evi- dence of the criminality of the person so apprehended, by the tribunals of the foreign country from which the accused party shall have es- caped, and copies of any such depositions, warrants, or other papers, shall, if authenticated according to the law of such foreign country, be in like manner received as evidence, of which authentication the certificate of the diplomatic or consular officer of the United States shall be sufficient. This obviates the necessity which might otherwise exist of confronting the accused with the witnesses against him. RILEY V. THE OBELL MITCHELL, (1861, U. S.) Fed. Cases 11,839. Beits, District Court. [Consul orders survey of ship — Consul acts in superintending sale of sliip were exclusively official — rule in law and equity which inhibits a trustee, made such by operation of law, as much as one acting under special appointment, from acquiring an interest, applies in this case. — Ed.] ROBERT RITSON, THE, (1871, U. S.) 1 Low. 574; Fed. Cases 11,895. Lowell, District Court. [Case in which the court dismissed a libel where the consul filed a protest against the courts taking jurisdiction of the libel brought by seamen for wages. — Ed.] ROBERTS V. EDDINGTON, (1801, Great Britain) 4 Esp. 88. Lord Kenyon, Nisi Prius. This was an act on a charter party, by which the defendant chartered his ship to the plaintiff, engaged to go on a voyage from London to St. Petersburg, and bring home a cargo of deals on their account ; dangers of the sea and restraints of princes only ex- cepted, in the common form. The ship had not proceeded to St. Petersburg. The defence relied upon by the defendant's counsel, was, that the ship, in the course of her voyage, had met with storms and bad weather, which had forced her into Dantzic after she had passed the 319 CONSULAR CASES Sound ; and that, during her stay there, the Russian embargo had been laid on; so that, if the vessel had proceeded to Petersburg, the captain and crew must have gone into slavery. The plaintiffs imputed the failure of the voyage to negligence and misconduct on the part of the defendant; and proposed to give in evidence Avhat is termed the Sound list and the Petersburg list, which are documents transmitted by the British consul abroad at those different places to the merchants at home, which are publicly hung up at Batson's coffee-house, for the inspection of the public, and which state the arrival of the different ships at these places. By this evidence, the plaintiffs proposed to prove, that other ships which had sailed in the same fleet with the defendant's ship, and some even long after, had passed the Soimd, and arrived safe at Petersburg, and had afterwards returned safely with a cargo. LORD KENYON. These lists cannot be received in evidence; they are not bottomed in that, without which the facts w^hich they are offered to prove cannot legally be established before a jury; namely, they are mere representations, and not upon oath; and are therefore inadmissible. ROBSON v. THE HUNTRESS, (1851, U. S.) 2 Wall. Jr. 59. Orier, Circuit Court. (Extract) The right of a consul to intervene on behalf of citi- zens of his own country who are absent but interested, seems too well established in practice to be doubted. He cannot intervene for his sovereign when such sovereign has a minister or ambassador resident in the country. Regularly he should state for whom he intervenes, more fully than is set forth in this bill. But this defect may be remedied as suggested, and carried out by the final decree. ROGERS v. AMADO, (1847, U. S.) Newb. 400; Fed. Cases 12,005. McCaleh, District Court. [TJ. S. consul has no authority to grant any license or permit the exemption of a vessel of an enemy from capture and confiscation. — Ed.] ROTH, IN RE, (1883, U. S.) 1.0 Fed. 506. Brov:n, District Court. (Extract) In the complaint presented to the commissioner in 320 CONSULAR CASES this case the complainant makes oath that he is the consul of the Swiss confederation at this port, duly recognized as such by the president of the United States; and, in conclusion, the complainant, as such con- sular agent, and "in the name of the Swiss confederation, requests a warrant, etc., for the delivery of said Roth to the authorities of the Swiss confederation, in accordance with the terms of said treaty," KOWE V. THE BRIG, (1818, U. S.— Spain) 1 Mas. 372; Fed. Cases 12,093. Story, Circuit Court. [Spanish consul at Boston intervenes in a matter of salvage and his action seems to be taken as a matter of course.] (Extract) A claim was interposed by the Spanish consul for the property, as belonging to certain Spanish subjects unknown. SACHEM, THE, See Hill v. The Sachem. SAGORY V. WISSMAN, (1868, U. S.) 2 Ben. 240; Fed. Cases 12,217. Blatchford, District Court. [State courts have jurisdiction over suits brought by a consul. — • Ed.] ST. JOHN V. CROEL, (1843, U. S.) 5 Hill 573. Cowen, Supreme Court, New York. By the court. COWEN, J. The learned judge thought the question in this case of so much importance as to call for a discussion in writing, with which I have been furnished, (a) I think he has shown that the proof of authority from P. and H. J. St. John was sufficient. I will only add, that if there can be any question whether the powers of attorney be within the 1 R. S., 747, 2d ed., sec. 4, sub. 3, and, therefore, the subject of acknowledgement before foreign con- suls, the doubt is removed by 2 Id., 325, sec. 74, 2d ed. Motion denied. (a) The following is an extract from the opinion of Judge Gridley, and the only part of it which relates to the objections urged by the defendant's counsel on the appeal: "It is not denied by the defendant's counsel that the revised statutes au- thorize the execution of deeds to be proved, etc., before consuls residing in foreign countries ; 1 R. S., 747, 2d ed. ; but it is insisted that the consular seal does not prove itself, except in certain cases specially provided for by act of congress. 321 CONSULAR CASES See, act of cong. of 1792, ch. 24, and of 1803, ch. 62, In support of this posi- tion I am referred to Conk. Tr., 258, 259; 2 Cr., 184, 239; 1 Dowl. & E., 324; Story Confl. of L., 530; 3 East, 221; 17 Johns., 272; 1 Wend., 131; 2 Paige, 620, and Petersd. Abr., tit. Consul. I have no doubt that the general principle con- tended for by the defendant's counsel in relation to the necessity of proving con- sular seals, is correctly stated, and that, if it were not for the fact that the provisions of the revised statutes respecting the proof of deeds in foreign coun- tries made this case an exception to the general rule, the objection would be fatal. 1 K. S., 747, 2d ed. But in construing this statute it should be borne in mind that the object of its enactment was to provide a convenient mode of proving the execution of deeds by grantors residing in foreign countries, and that the construction which dispenses with evidence of the official character of the person taking the proof and of the genuineness of the certificate, best com- ports with the design of the law makers. True, consuls are officers of the gen- eral government; but our statute adopts them as state officers for the particular purposes therein mentioned. The 3d subdivision of the 4th section of the statute 1 E. S., 747, 2d ed, under which the powers in question were proved, was enacted in 1829, and clearly with the intent of increasing the facilities of proving deeds of real estate in foreign countries. The provision does not even require a seal; and it may be doubted whether it is at all subject to the 7th section of 1 E. S., 747, which requires a seal, and points out the mode of authenticating certificates. But when the 7th section was enacted, the 3d subdivision of the 4th section was not in existence; and it will be seen that it provides for a mode of authentication applicable to the cases embraced within it, by deelariug that the acknowledgment or proof 'certified by them (the officers thereinbefore named) respectively, shall be as valid and effectual as if taken before one of the justices of the supreme court of this state.' Jurata and certificates of acknowledgment are exceptions to the general rule requiring evidence of the official character and signature of the person before whom the deposition or instrument purports to have been sworn or acknowledged. The learned annotators upon Phillips ' Evidence say : ' There are many cases in the law, not only of depositions, but also of acknowledgments and certificates, •which are made proof per se; in all which cases the person officiating is re- garded as a quasi officer of the court; and his act is recognized of course, like the return of a sheriff, etc. Courts take what is called judicial notice, that the per- son assuming to act has the proper authority.' Cowen & H. Notes to Phil, Ev,, p. 628. At page 1247 of the same book it is laid down that 'where the of- ficer taking the same (the acknowledgment or proof) styles himself such an of- ficer as is authorized, that will be prima facie evidence of the fact of his being BO,' My conclusion is, that the proof of authority to commence the suit is now perfect as to all the plaintiffs, and that the order to stay proceedings should be revoked. ' ' ST. LUKE'S HOSPITAL v. BARCLAY, (1855, U. S,) 3 Blatchf. 259; Fed. Casei 12,241. Belts, Circuit Court. (265) (Extract) The defendants, being aliens, are amendable to the jurisdiction of the circuit court in a suit in favor of citizens, 322 CONSULAR CASES and their consular character exempts them only from the jurisdiction of state courts. The act of congress gives to the district courts of the United States jurisdiction in civil actions, in suits against con- suls, exclusively only of the state courts. By the law of nations, con- suls are subject to the ordinary jurisdiction of the tribunals of the country to which they are accredited. (1 Kent's Comm., 43, 45; Wheat. Law of Nations, 293, § 22; 11 Wheat., 469, note). There seems, therefore, to be no legal impediment to the application of the eleventh section of the judiciary act of 1789 (1 U. S. Stat, at Large, 78) to actions by citizens against consuls, in the circuit courts of the United States. On both points, in my opinion, this court has cognizance of this case, and the injunction prayed for ought to issue, and be enforced imtil the further order of the court. Subsequently, Bunch pleaded to the jurisdiction of the court, that, at the commencement of the suit, he was the British consul at Charleston, S. C, and Barclay was the British consul at New York, both of them admitted by the president, and that they ought to be sued in the supreme court of the United States, or in some district court of the United States, and not elsewhere. After argument be- fore Nelson and Betts, J. J'., by Marshall S. Bidwell, for the plain- tiffs, and Charles Edwards, for Bunch, the court (October 2d, 1855) overruled the plea, with costs. SAIOMONI, THE, (1886, U. S.— Italy) 29 Fed. Eep. 534. Speer, District Court. [Court declared that in the matter of wages Italian treaty of September 18, 1878, art. 11, gave the consul jurisdiction, but had the libel contained a prayer for the injury caused by the assault the court might have taken jurisdiction. — Ed.] SARTORI V. HAMILTON, (1832, U. S.) 1 Green 107; 13 N. J. Law 107. Ford, Supreme Court, New Jersey. (108) FORD, J. The plaintiff was accredited to the govern* ment of the United States as a foreign consul. Being sued in an action of debt in the court for trial of small causes, he plead to the jurisdiction of the justice, that he was suable only in the district court of the United States, according to the act of congress. The justice, however, tried the cause and rendered judgment against him as the maker of a promissory note. If the act of congress be of any authority, it takes away the 323 CONSULAR CASES jurisdiction of the justice, and of this court like\nse, over a consul. Its words are these: "The district court of the United States, shall have jurisdiction, exclusively of the courts of the several states, of all suits against consuls." Acts of congress, 1 vol. 54, sec. 9. These words exclude state courts from civil jurisdiction over foreign consuls. But the power to deprive a state of the right of administering justice to its citizens, is said not to be taken away by the constitution of the United States, and therefore no act of congress, can do it. The words of the constitution are, 3d art. sec. 2, "The judicial power of the United States shall extend to all cases affecting ambassadors and consuls." They may have concurrent jurisdiction, it is said; but the jurisdiction which state courts had, before the adoption of the con- stitution, not being taken away by express words, must, it is said, necessarily remain; for by the 10th amendment, "the powers not pro- hibited by the constitution to the states, are reserved to them;" and therefore that an act of congress prohibiting this jurisdiction to a state, is unconstitutional and void. But on the other hand, if state jurisdiction is excluded by a fair and necessary (109) implication of the WGrds of the constitution, such implication is as good as ex- press words. Now the exclusion seems to be fairly and necessarily implied. The constitution extends the judicial power of the United States to "ambassadors and consuls" both alike; it does not distin- guish between them as to jurisdiction, but places them imder one rule. If it had intended different rules for the two persons of am- bassadors and consuls, it would have said so. If we disjoin and separ- ate under two rules what are thus united under one and the same, we do arbitrary violence to the constitution. Now that the judicial power of the United States over ambassadors belongs to them exclu- sively, is not denied, and by the same rule, (there being but one rule) in the con.stitution, it must be exclusive over consuls also. One is made known by the other. Again, The 1st Art. 8th section em- powers congress "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the constitu- tion in the government of the United States." One of them is the power of managing our public relations with the rest of the world without the interference of any state; another is, "to regulate com- merce with foreign nations." For the exercise of these powers they are responsible to the nation and to foreign powers. Now a consul is a commercial agent, with public functions, accredited to the national government by a foreign power and is admitted to be under the par- ticular protection of the law of nations. Mart. Lib. 4ch. 3, sec. 8. Therefore any maltreatment of the consul of a foreign power, is not only a justifiable cause of war, but has often occasioned wars in the 324 CONSULAR CASES history of nations. No individual state is answerable for the treat- ment a foreign consul may receive ; the national government is answer- able alone; and it seems indispensably necessary to its responsibility, that it should have exclusive jurisdiction over them. How could it be answerable for laws affecting consuls, and for the execution of those laws over which it had no control ? This reasonable and necessary im- plication in the constitution was adopted by the very first congress in the year 1789, so that its allowance was coeval with the government ; it has been maintained under every administration, and impliedly assented to by every state in the Union for the last forty years. It has received the highest judicial sanction in a neighboring state, and (110) is approved by the most eminent of our American civilians. 1 Kent's Com. 44. But if state courts are ousted of jurisdiction, it is argued that we must dismiss this present certiorari, for want of power to take cognizance of the present matter. This is not a fair inference from the premises. We have no jurisdiction, nor has the justice any; and it is our duty to restrain inferior tribunals and keep them from exceeding their legal jurisdiction. We exercise no jurisdiction over consuls ourselves, nor suffer inferior tribunals to do it. On account therefore of its being a fair and necessary implica- tion in the constitution, adopted at the commencement of the govern- ment, and acquiesced in to the present time, I feel bound to say that the justice had no jurisdiction, and that the judgment must be re- versed. Judgment reversed. SAUNDERS V. THE VICTORIA, (1854, U. S.) Fed. Cases 12,377. Per Curiam, District Court. (Extract) The court having granted leave, Mr. Rush then read the following paper, signed by Mr. Mathew : "To the honorable John K. Kane, judge of the district court of the U. S., in and for the Eastern District of Pennsylvania. Saunders et al. vs. The British Brig 'Victoria' In Admiralty, In the above suit, instituted in this honorable court, by three of the crew of a British vessel, against said vessel and her master, on a claim for wages, the undersigned, her Britannic majesty's consul for Pennsylvania, residing at Philadel- phia, begs leave respectfully, to enter this his dissent to the crew being permitted to sue in a court of the United States. First, Because the brig Victoria, on board of which the libellants and respondents sailed, is a British vessel, and the respondent, her commander, a British sub- ject. Second. Because an investigation of the cause of suit, would call in question official acts and conduct of a British functionary in 325 CONSULAR CASES regard to British subjects, which the undersigned has already disposed of to the best of his judgment ; respecting which he is responsible only to his own government; and with regard to men, master and sailors, all residents at Nassau, where there is, as in all British colonies, an adequate court of appeal. (Signed) George B. Mathew, Consul. "Whereupon the court referred the consul to the cases of Weiberg V. The St. Oloff [Case No. 17,357], and the Golubchick, in 1 W. Rob. Adm. 143, as illustrating the law of the admiralty jurisdiction in cases of foreign vessels ; but upon a view of the admissions contained in the libel, that the contract of shipment, if violated at all by the re- spondent, had been so violated at a time when recourse might have been had before a British tribunal, and that the parties are about to pass within a British jurisdiction again, and might therefore have re- coiu^e to the tribimals of their own country within a reasonable time, and without loss of proofs, concurred with her Britanic majesty's consul in the views expressed by him; and thereupon, made the fol- lowing order : And now, 2d May, 1854, it appearing to the court, that the vessel is a British vessel, and the seamen British subjects, and that she is now about to sail to a British port, where redress may be had by the libellants, if entitled thereto ; it is upon the dissent of the British consul to further proceedings being had in this court, said dissent being now filed, ordered that this libel be dismissed. SAVAGE v. BIRCKHEAD, (1838, U. S.) 20 Pick. 172. Shaw, Supreme Judicial Court of Massachusetts. (Extract) The court are of opinion, that an American consul, residing in a foreign country, and who has been duly accredited there, is a magistrate, authorized to take affidavits and depositions in such foreign state or country, within the mieaning of the rules of this court, directing commissioners to take depositions, and that the depositions taken in this case by Mr. Baker, the American consul, in the absence of the special commissioners, to whom it was first addressed, was duly and properly taken. Brancker v. Parker, in Suffolk, March term 1837. SCANLAN V. WRIGHT, (1833, U. S.) 13 Pick. 52.3. Shaw, Supreme Court of Massachusetts. [Consul competent to take an acknowledgment of a deed of land. Derives his authority from both governments. Is a magistrate. — Ed.] 326 CONSULAR CASES (528) (Extract) The next question is, whether this deed was rightly admitted to be registered in this country, it being objected that it was not acknowledged by the grantor, conformably to the statute. This statute requires that the deed be ' * acknowledged by the grantor, before a justice of peace in this state, or before a justice of peace or magistrate of some other of the United States, or in any other state or kingdom wherein the grantor or vendor may reside, at the time of making and executing the deed." This deed purports to have been acknowledged before D. Strobel, Esq., consul of the United States for the city of Bordeaux in France, Bishop Cheverus, the grantor, then residing at that place. The question is, whether an American consul is a magistrate, within the meaning of the statute. It is difficult to fix any definite meaning to the word "magis- trate," a generic term importing a public officer, exercising a public authority ; it was intended, we think, to use a term sufficiently broad to indicate a class of officers, exercising an authority similar to that of justices of peace in our own state, or as nearly so as the difference in the forms of their governments and institutions would permit. It was to provide for the execution and acknowledgments of deeds, in all foreign countries. It may be remarked, as a circumstance of some consideration, that the acknowledgment is to be before some justice of peace or magistrate in any other state or kingdom, not of any other state. There is nothing to indicate what kind of magistrate was in- tended, except the nature of the act to be done and the connection in which the term is used. The act is a ministerial one; it is to be before a justice of peace or magistrate. The maxim noscitur a sociis applies. It must then be a ministerial officer, exercising like powers with those of a justice of peace in this commonwealth, when acting in his ministerial capacity. Such an officer, we think, is a consul in a foreign country, at least in respect to the persons and interests of the country from which he is sent. An American consul in France, derives his authority, in effect, from both governments; he has his commission from the United States, but his exequatur from France; and it is, in truth, in virtue of (529) the authority vested in him by the latter, that he exercises any official authority within the territorial limits of the latter. The Bello Corrunes, 6 "Wheat. 156, note; 1 Chitty's Cora. Law, 48. This view is somewhat confirmed by the statute law of the United States; Act of Congr. 1792, c. 24, sect. 2; which provides, that con- suls shall have right in the posts or places to which they are ap- pointed, of receiving the protests and declarations which masters, &c., who are citizens of the United States, may choose to make there, and 327 CONSULAR CASES also such as any foreigner may choose to make before them, relative to the personal interest of any citizens of the United States. The same statute, sect. 9, provides, that the specific enumeration of powers therein expressed, shall not be deemed to exclude such others as result from the nature of the office. An officer, authorized by the con- currence of both governments to exercise such powers in France, is, we think, a magistrate competent to take in France, and authenticate by his official act, the declaration of the grantor of a deed, that he has executed the same freely, as his act and deed, and that such acknowledgment so authenticated is sufficient to warrant the register of deeds in this commonwealth to record it. SCHTJNIOR V. RUSSELL, (1892, U. S.) 83 Texas 83. Gaines, Texas Supreme Court. (88) (Extract) The depositions in this case sought to be sup- pressed were taken in the city of Camargo by an officer who gave his official title as "consular agent of the United States at Camargo, Mexico." In authentication of his act he used a seal, which con- tained the words, "United States Commercial Agency." It is claimed that the seal of the United States commercial agency is not the seal of this officer. Section 1674 of the revised statutes of the United States contains this language : "1. 'Consul-general,' 'consul,' and 'commercial agent' shall be deemed to denote full, principal, and permanent consular officers, as distinguished from subordinates and substitutes. "2. 'Deputy consul' and 'consular agent' shall be deemed to denote consular officers subordinate to their principals, exercising powers and performing duties within the limits of their consulates or commercial agencies respectively, the former at the same ports or places, and the latter at points and places different from those at which such principals are located respectively. "3. 'Vice-consuls' and 'vice-commercial agents' shall be deemed to denote consular officers who shall be substituted temporarily to fill the places of consuls-general, consuls, or commercial agents, when they shall be temporarily absent or relieved from duty. "4. 'Consular officer' .shall be deemed to include consul-general, consuls, commercial agents, vice-consuls, vice-commercial agents, and none others." A consul is defined to be, "a commercial agent of a country re- siding in a foreign seaport, whose duty it is to support commercial intercourse of the state, and especially of the individual citizens." 3 Am. and Eng. Encyc. of Law, 764. From this definition, as well 328 CONSULAR CASES as the language of the statute, we deduce these conclusions: That a consul and a commercial agent are invested with the same powers and duties; that though nominally different, the office of each is substan- tially the same as that of the other, and that the name is determined by the relative (89) importance of the port to which the officer is assigned. It is to be noted that the second subdivision of the section of the revised statutes of the United States hereinbefore quoted pro- vides, that deputy consuls are subordinates who perform their duties at the same port as their principals, and that consular agents are in effect deputies who act at a place other than that at which their principals are located. In the first subdivision commercial agents are declared to be principal officers, and it is thereby indi- cated that they might have deputies. It would seem that if a com- mercial agent should be placed in charge of a number of ports or places, a deputy might be necessary at places where he could not dis- charge the duties of the office in person. But the revised statutes do not expressly mention a deputy commercial agent or the agent of that officer. The agent of a commercial agent by being called a commercial agent would not have been distinguished from his prin- cipal, and we therefore incline to the opinion that it was intended that such a deputy when acting at a place different from that of his prin- cipal was intended to be known as a consular agent. He is such in fact, and it is no misnomer. It is evident from the certificate to the depositions in this case that the officer was an agent in a commercial agency, and we infer that, under the official title of consular agent, he was acting as deputy of the commercial agent of a consular district. The seal of the United States commercial agency would indicate that such agency existed at Camargo, and it would seem that a consular agent at that point must have been subordinate to the commercial agent in charge of the district in which Camargo was situate. But at all events, it is to be presumed that the officer who took the deposi- tion did his duty and affixed the proper vseal in authentication of his acts; and from the lights before us we can not say that the seeming discrepancy between the seal and the title of the officer is sufficient to overcome that presumption. On the contrary, without the aid of the presumption, we are inclined to the opinion that we should be con- strained to hold that the seal was a proper one. SCOTT V. KOBE, (1900, U. S.) 108 Wis. 239; 84 N. W. 181. Winslow, Supreme Court of Wisconsin. (241) WINSLOW, J. (Extract) It is insisted by the appellant that the state courts have no jurisdiction of this action, because the 329 CONSULAR CASES defendant is a vice consul of Sweden and Norway and can only be sued in the courts of the United States. The defendant was a trading consul, the action here brought is one which arises out of his busi- ness, and the principle of international law is that a trading consul is liable to the ordinary'- processes of (242) law in all that concerns his trade, in the same way as a native merchant. Coppell v. Hall. 7 "Wall. 542. The defendant is therefore amenable to the jurisdiction of the state courts, unless that jurisdiction has been taken away by the con- stitution and laws of the United States, — for the state courts have jurisdiction unless it has been taken away, the United States courts have no jurisdiction unless it has been given. By the constitution of the United States, the courts of the United States were vested with judicial power extending to "all cases affecting ambassadors, other public ministers, and consuls," and in all such cases the supreme court was given "original jurisdiction." Const. U. S. art. Ill, sec. 2. A grant of original jurisdiction is not a grant of exclusive jurisdiction ; hence there is nothing in the constitutional clauses just cited w^hich deprives the state courts of jurisdiction. Bors v. Preston, III U. S, 252. By the judiciarj^ act of 1789, however (R. S. of U. S. 1874, sec. 711, par. 8), exclusive jurisdiction was vested in the courts of the United States over "all suits or proceedings against ambassadors or other public ministers,. . . or against consuls or vice consuls." Under this act it was well settled that the jurisdiction of the United States courts was exclusive. Davis v. Packard, 7 Pet. 281; Valarino v, Thompson, 7 N. Y. 576. This paragraph was repealed by ch. 80 of the United States statutes at Large, passed by the 43d congress, ap- proved February 18, 1875, so that there is now no constitutional or statutory provision vesting exclusive jurisdiction of such causes in the United States courts. In the absence of such provision, or of any treaty provision, the jurisdiction of the state courts seems unquestion- able. The same result was reached in Wilcox v. Luco, 118 Cal. 639, 45 L. R. A. 579 ; and De Give v. Grand Rapids F. Co. 94 Ga. 605. SEIDEL V. PESCHXAW, (1859, U. S.) 27 N. J. Lavr. 427; .3 Dutch. 427. Haines, Supreme Court of New Jersey. (429) HAIXES, J. (Extract) Another objection to the affidavit of Peschkaw is, that it was not made before a person having compe- tent authority to administer such an oath. It purports to have been made at the city of Vienna, in the em- pire of Austria, before Edward C. Stiles, the consul of the United States at that place, tested by the signature and the consulate seal. 330 CONSULAR CASES The objection is, that a consul of the United States has no author- ity to administer an oath. The act of 10th March, 1853, (Nix. Dig. 132, pi. 57,) authorizes the administration of an oath or affirmation to hold to bail, by "any ambassador, public minister, charge of affairs, or other representative of the United States, for the time being, at any foreign court or gov- ernment. The question presented is, whether a consul of the United States at a foreign court or government is a representative of the United States. A consul is a mercantile agent of the sovereignty by which he is appointed to protect the commercial interests of its citizens or subjects in a foreign state. By virtue of his office, he is clothed only with authority for commercial purposes. He is not to be considered as a minister or diplomatic agent of his government, intrusted with au- thority to represent it in negotiations with foreign states or to vin- dicate its prerogatives. 1 Kent 's Com, 43 ; 3 Wheaton 445, In re The Annie. (430) He has not the immunities of an ambassador, but in civil and in criminal cases is subject to the local laws, in the same man- ner as other foreign residents owing temporary allegiance to the state to which he is accredited. But consuls are agents of their governments; and in the United States, it belongs exclusively to the president, by and "uith the ad- vice and consent of the senate, to appoint consular officers to such places as he and they may deem to be meet. They are officers created by the constitution and law of nations, and not by act of congress. 7 Opinion on the Constitution 242. The persons so appointed are responsible for their official deport- ment to the United States, and are required to enter into bonds, with sureties for the faithful discharge of their duties. For any neglect or malfeasance in office they are liable to indictment for the offence, and also, upon their official bonds, for all damages caused thereby, to be sued for in the name of the United States, to the use of the persons injured. Their compensation is by salary, paid by the United States, or by fees, according to the rates established by act of congress. A consul must be recognized by the government to which he is sent, and authorized to exercise his official functions within its terri- tory. His exequatur, granting such authority, may be withdrawn, and his functions suspended at the pleasure of the executive of that gov- ernment. He is not, in general, responsible personally for contracts made in his official capacity on account of the government he repre- gents. Jones v. Le Tombe, 3 Dallas 384. 331 consutjAr cases In his official acts, he represents the United States. On the arrival of a vessel from the United States at his port, the commander is required to deposit with the consul his sea letter and register, under a penalty of $500, and they are to be returned to him only on his producing to the consul his clearance from the proper officer of the (431) port, and on compliance with the provisions of the acts regulating the conduct of such officers in foreign ports. Act of Congress, 28th Februarj^ 1803; Harrison v. Vose, 9 Howard 372. He is to protect the seamen of the United States discharged in a foreign port, and receive from the master three months' wages, be- sides the wages due at the time of their discharge, to provide for the return home of such as desire to return, and for the support of such as may be destitute. He is to hear complaints of seamen against the master. He is to reclaim deserters, and to inquire into the seaworthiness of ships. He is to take measures for the preservation of stranded vessels of the United States and their cargoes. He is to take possession of the personal effects of such citizens of the United States as shall die within his consulate unrepresented, and to administer the same by paying the local debts, and remitting the residue to the United States treas- ury. All these, and other official acts, are performed, as the officer of the United States, for the protection of the persons and property of the citizens of the United States. In them all, he represents the gov- ernment by which he is invested with authority to perform them. He is the instrument through whom the United States extends protec- tion to such of its citizens; and as an emblem of his authority, and of so much of the sovereignty of his government, he is permitted to raise its national flag over his consulate residence. If, then, he is appointed and paid by the United States — ^is re- sponsible to that government for his official conduct; if he is recog- nized by the government to which he is sent as the officer of the Ignited States; if he acts on behalf of the United States; and his of- ficial acts relate only to the persons and property of citizens of the T^nitf'd States, he must be regarded as a representative of the United States within the meaning of our statute, and so have (432) authority to administer an oath to be used in the courts of this state. We must therefore conclude that a consul has authority to administer an oath, and that the objections to the formality of the affidavits are not sus- tained. SEMMENS V. WALTERS, (1882, U. S.) r,r, Wis. 67.'3; 1?, N. W. 8R9. Orton, Supreme Court of Wisconsin. (681) ORTON, J. (Extract) 1. The depositions were returned to 332 CONSULAR CASES the commissioner in Canada for correction by signing his name as a commissioner instead of consul of the United States. This was not error. 2 Wait, Pr. 707; Keeler v. Vanderpool, 1 Code R. (N. S.) 289; Creamer v. Jackson, 4 Abb. 413. It is suggested, but not de- cided, the statute authorizing commissions, contemplates their issue to unofficial persons not otherwise authorized to take depositions, and the issue of commissions only to persons in another state or terri- tory of the Union. Consuls of the United States are authorized to take depositions without a commission, and a commission is needless. 2 Rev. St. U. S. (2 Ed.) § 1750; Herman v. Herman, 4 Wash. C. C. 555. And it is questionable whether the strict rules of taking de- positions by commissioners ought to be applied in such a case, where the proper notice, as in this case, was given of the examination of certain witnesses whose residence is given in the notice before a consul of the United States in one of the provinces of Canada, and the time and place are also given in the notice. SHARPE AND SHARPE v. CRISPIN, (1869, Great Britain) 1 L. E. P. & D. 611; 20 L. T. 41. Wilde, Courts of Probate and Divorce. (Syllabus) The mere residence as a consular officer in a foreign country gives rise to no inference of a domicile in that country. But, if one already domiciled and resident in such country accept an office in the consular service of another country, he does not thereby destroy his domicile. SHOREY V. RENNELL, (1858, U. S.) 1 Sprague 416. Sprague, District Court. [Imprisonment of seamen by consul condemned. The master of vessel had unfair advantage in laying his complaint before consul, who should have been * ' extending to the seamen that protection which they had a right to demand from his official character." — Ed.] SIDY HAMET BENOMOR BEGGIA, (Case of), (1822, Great Britain) 1 Add. 340. [Case where consul appointed by emperor of Morroco to receive estate of deceased consul leaving no heirs petitioned to be appointed administrator. — Ed. ] SIMPSON V. FOGO, (1862, Great Britain— U. S.) 1 H. & M. 195; 29 L. J., eh. 657. Wood, Vice Chancellor, High Court of Chancery. [Consul intervened in suit with authority from absent subject. Seems to raise no question affecting consuls. — Ed.] 333 CONSULAR CASES SIHITJS. THE, (1891, U. S.— Great Britain) 47 Fed. Rep. 825. Boss, District Court. [British consul asked court to take jurisdiction in a suit for wages and breach of contract — court accordingly took jurisdiction. — Ed.] SMITH V. TREAT, (1845, U. S.) Fed. Cases 13,117; 4 N. Y. Leg. Obs. 13. Ware, District Court. [Consul sent home in irons mate who killed sailor. — Ed.] SNOW V. WOPE, (1855 U. S.) Fed. Cases 13,149, Curtis, Circuit Court. (Extract) The consul of the United States for that port was absent. His clerk came on board and saw the libellant, and told him he was not entitled to his discharge, and appears to have aided the master to procure the iaterposition of the local authorities. If this had been done by the consul, under the powers conferred on him by the act of congress of July 20, 1840. and there was no illegality in the conduct of the master in applying to him for his action in the matter, then, as was held by this court in Jordan v. Williams, the master would not have been liable for such imprisonment. But no one but a duly appointed consul or commercial agent of the United States, is in- trusted by the act of congress, with the power to employ the local authorities to check insubordination. SORENSEN V. THE QUEEN, (1857, Great Britain) 11 M. P. C. C. 119. Sir John Patteson, Privy Council. See The Baltica 1 Spink's Prize Cases 264. SPANISH CONSUL'S PETITION, (1867, U. S.— Spain) 1 Ben. 225. Blaichford, District Court. Foreign commission. BLATCITFORD. J. The petitioner, who is the consul of her majesty the queen of Spain at the port of New York, represents that he has received from the judge of the Southern District of Santiago, in the island of Cuba, a commission, empowering him to take the testi- 334 CONSULAR CASES mony of certain witnesses named therein, to be used in a criminal prosecution for swindling, a translation of which commission he produces, and he prays that a summons may be issued by rae requiring the witnesses to attend and testify. I have no power to issue the summons asked for. The only provisions made by congress, on the subject of enforcing the giving of testimony in judicial proceedings pending in a foreign country, are those found in the act of March 2d, 1855 (10 U. S. Stat, at Large, 630, sect. 2), and in the act of March 3d, 1863 (12 Id. 769). The former provides that "where letters rogatory shall have been addressed from any court of a foreign coun- try to any circuit court of the United States, and a United States commissioner designated by said circuit court to make the examination of witnesses in said letters mentioned, said commissioners shall be em- powered to compel the witnesses to appear and depose in the same manner as to appear and testify in court." The latter act is con- fined to the taking of testimony to be used in a suit for the recovery of money or property depending in a court of a country with which the United States are at peace, and in which the government of such foreign country is a party or has an interest. The prayer of the petition is denied. STAHEL V. UNITED STATES, (1891, U. S.) 26 Ct. CI. 193. Davis, Court of Claims of the United States. (195) DAVIS, J., delivered the opinion of the court: Section 1745 of* the revised statutes authorizes the president to prescribe the "rates or tariff of fees to be charged for official ser- vices and to designate what shall be regarded as official services, be- sides such as are expressly declared by law." Pursuant to this au- thority the president has published a volume entitled "Consular Reg- ulations," containing the regulations and instructions, including a tariff of fees to be charged for official services, for the information and government of con-(196)sular officers of the United States. The regulations of 1881 were in force diu'ing the entire period covered by this action. As to the authority conferred by section 1745 (Rev. Stat.) the supreme court said: "This section concerns itself wholly with "official services." The tariflfs of fees to be prescribed by the president from time to time arc tliose to be charged for "official services." The president is to designate what are to be regarded as "official services" in addition to such as are expressly declared by law." (Mosby v. The United States, 133 U. S. E., 273.) 335 ^ CONSULAR CASES Section 180 of the consular regulations (1881) provides as fol- lo"ws: ' ' These provisions respecting tonnage and other fees and the deposit of a ship's papers apply to American or foreign built vessels purchased abroad and whoUv owned by citizens of the United States, in the same manner as to regularly documented vessels. ' ' While plaintiff was consul-general at Shanghai, China, he per- formed services for vessels of this description, and there were paid into his office "tonnage dues" and fees for "report to customs," for "oath and appointment of master," and for "bill of health," which he turned into the treasury, and now claims were his personal emolu- ment. On behalf of plaintiff it is contended that the vessels to which the consular services were rendered were not ships or vessels of the United States; that, while entitled to government protection as prop- erty of citizens of the United States, they were under no legal obliga- tion to obtain and pay for the services of consuls at foreign ports; that having done so, the fees paid therefor were "unofficial," not "of- ficial" fees, as the consul acted unofficially, and not under warrant of law ; that is, his services were personal. Before considering this proposition it should be noted that the question before us is not primarily whether vessels of this class are obliged to pay fees of the kind complained of, but whether, when paid, the president can classify these fees as official fees or must regard them as unofficial fees. The money has in fact been paid ; the consular regulations, in fact, affix to it an official character, and it is now in the national treas- ury. (197) "Whether the shipowner was under legal obligation to pay these fees is one question ; whether, when paid, the consul may retain them as fees for unofficial services is another question. The power of the president under section 1745 of the revised statutes is very broad, and authorizes him to prescribe the rates of fees to be charged for official services, to designate what shall be re- garded as official services, "besides such as are expressly declared by law," and to adapt the rates or tariffs of fees to the different con- sulates. There seem to be but two limitations upon his power — one (expressed) which prevents him from declaring a fee to be unof- ficial which the law declares official; and one (implied) which pre- vents him from prescribing a fee for a service which the law declares shall be rendered gratuitously. It may or may not be that the president had not the power to force the shipowner to pay these fees; as to this, of course we express 336 CONSULAR CASES no opinion ; but if he had not the power and the fees were illegally col- lected, we still fail to see how the consul can base upon this fact a claim to retain, as a personal emolument, the money so illegally col- lected. The president has directed the collection of fees of this class and has marked them with an official stamp; if the fee is illegally collected, the owner may perhaps have a right of recovery against the government, which directed their collection, but the subordinate of- ficer who performed the services and collected the fees imder the dis- tinct order of the president, which at the same time classified the ser- vices and the fees as official, can not lay claim to the money thus coming into his hands. Subject to the limitations we have suggested the president may at any time transfer a fee from the unofficial to the official schedule or vice versa; or he may increase, diminish, or abolish a fee, and his directions in this regard are binding upon the officers of the consular service. In the words of the supreme court, speaking by Mr. Justice Blatchf ord : "The president is to designate what are to be regarded as 'official ser- vices' in addition to such as are expressly declared by law (supra)." These items are therefore not allowed, and judgment will be en- tered in favor of plaintiff for the other items of his claim which are within the decision in Mosby's Case. Judgment for plaintiff in the sum of $5,190.21. STATE V. DE LA FORET, (1820, U. S.) 2 Nott. & McC. 217. Huger, Constitutional Court of South Carolina. An ambassador or public minister of a foreign prince or state, is not amenable to the laws of the nation to which he is sent. — (a.) The law of nations does not exempt a foreign consul from liability to the laws of the state in which he resides. — (b.) The federal courts have not exclusive jurisdiction with regard to offenses committed by foreign consuls in the United States; but the consul is amenable to the laws of the state in which he commits an offence. The defendant was indicted in the circuit court of Charleston, in January term, 1816, for an assault and battery, A plea to the jurisdiction of the court, was interposed on the ground that he was the French consul, and therefore not amenable to the laws of the state. The plea was sustained by the presiding judge, and now a mo- tion was made to reverse that decision. 337 CONSULAR CASES MR. JUSTICE HUGER delivered the opinion of the court. Two grounds have been taken in support of the plea : 1st, That a foreign consul, by the law of nations, is (218) not subject to the laws of the state in which he resides — And 2d. That if he be subject to the laws of the country in which he resides, the federal courts have exclusive jurisdiction under the con- stitution of the United States, over all cases in which he is con- cerned. I shall examine these grounds in their order. That an ambassador, or public minister of a foreign prince or state, is not amenable to the laws of the nation to which he is sent, is, I believe, universally admitted. All the writers on the law of na- tions concur in opinion as to the existence as well as the propriety of this immunity : And no court in this country, either federal or state, is known to have questioned its existence. In England, as early as the 7th of Ann, a statute was passed, "exempting ambassadors and public ministers from the process of their courts, and the statute declares all such persons as should prose- cute any writ or process against them, to be violators of the law of nations;" and congress, in 1790, passed an act of similar import; but neither of these acts extends to consuls. The privileges of ambassadors and public ministers are great, but they appear to be necessary. They are the representatives of na- tions, employed in the transaction of the most important concerns, the proper management of which requires the most perfect exemption from all possible influence or control. But a consul appears to be neither ambassador nor public minister. He is not the representative of his nation, nor is he employed in the management of national con- cerns. He is no more than a commercial agent, attending to individual interests. Vattel, (in B. 2, C. 2, S. 34,) speaking of consuls, declares, "that they are not public ministers, and cannot pretend to the priv- ileges of one." Barbeyrac, Binkershoeck and Martens declare them subject to the laws of the country in which they reside. But Vattel appears to think that as a consul holds the commission of his sovereign, he ought to be regarded as more under the law of nations than a com- mon (219) stranger. He goes so far as to say, that a consul's functions seem to require "that he should be independent of the ordinary crim- inal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violate the law of nations, by some enor- mous misdemeanor." It is a mere suggestion, at variance with the opinions of all other writers on the subject; and with which he does not appear to be entirely satisfied himself. In B. 4. C. 6., Sec. 75, he proceeds, "we have spoken of consuls in the article of commerce, 338 CONSULAR CASES Formerly agents were a kind of public ministers; but in the present increase and profusion of titles, this is given to mere commissioners appointed by princes for their private affairs, and who not unfre- quently are subjects of the country where they reside. They are not public ministers, and consequently not under the protection of the law of nations." He here classes consuls with agents, to whom he denies the protection of the law of nations. In the case of Viveash vs. Beckrer, (3 Maule and Selwyn, 284,) Lord EUenborough con- cludes a very full investigation of this question, with the opinion, that no such privilege exists. And the chief justice of Pennsylvania, in the case of Kosloff declares, "that he cannot hesitate in the opinion that there is nothing in the law of nations which protects a consul general from indictment. ' ' "We have indeed in the case of the United States vs. Mr. Ravara, consul from Genoa, the opinion of the then chief justice of the United States, Mr. Jay, whose diplomatic services and great learning entitle his opinion on this subject to great respect, "that consuls are not protected by the law of nations from the jur- isdiction of the laws of place where they reside." (2 Dal. 297.) I am therefore of opinion that the plea cannot be sustained on the first ground. The second ground presents great difiSculties : The complex na- ture of our government, the union of several sovereignties under one, and yet each preserving a large proportion of independent sovereignty in itself; its recent establishment, which necessarily implies the absence of much experience, that will, in the progress of events, ex- plain the meaning of its different parts, and reconcile them in one harmonious whole, must frequently originate questions of great nicety. In the consideration of such questions, much caution ought to be observed. The great purposes for which our governments were es- tablished, must be constantly kept in view; and no narrow rules of construction be adopted, which shall check in their growth the pro- tecting powers of the federal government. To the state governments, is committed the protection of all our domestic rights, on which depends almost the whole of private happi- ness. Here we have a field sufficiently ample to exhaust the powers of those, whose ambition it is to extend the bounds of human happi- ness ; where the greatest talents, and most exalted feelings may be in- dulged without the fear of wanting employment. On the federal government is devolved the duty of national pro- tection. To enable it to perform this duty, all the means of national defence are given ; the army, the navy, the militia, the power of taxa- tion, the power of borrowing money, the power of defining and punish- ing piracies and felonies committed on the high seas, and offences 339 CONSULAR CASES against the law of nations, to declare war, &c. But protection is not the only duty devolved on the federal government, by the constitution of the United States. It has power to regulate commerce ; to establish an imiform rule of nationalization, and uniform rules on the subject of bankruptcies. It has power to coin money, &c. to provide for the pimishment of counterfeiting the securities and current coin of the United States; to establish post-offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors, the exclusive rights to their respective writings and discoveries ; to constitute tribunals inferior to the supreme court ; to exercise exclusive legislation over such district as may be ceded to them. Here are powers, the exercise of which are necessary to na- tional convenience, and it is difficult to ima-(221)gine how we should proceed without an exercise of these powers, or most of them, by the federal government. AVere each state to regulate its commerce, (a fruitful source of war,) we should not present to foreign nations a single, but a divided front; and it does not require the spirit of prophecy to foresee that the exercise of such a power by the states, would soon lead to a dissolution of the Union. We accordingly find in the 8th sec. of the 1st art. of the constitution of the United States, the states expressly prohibited from the exercise of this power; "To establish an uniform rule of naturalization and an uniform rule of law of bankruptcy : ' ' The exercise of this power by the states would necessarily defeat the object of the constitution. There could not be a uniform system or rule, if twenty different governments had the power to legislate on the subject. It is not only the object of the constitution to have an uniform rule, but public convenience would seem imper- iously to require it. "We are citizens of the United States, and not of the respective states, and foreign merchants trade with us, and foreign governments recognize us when trading with them, not as the citizens of a district or state, but as citizens of the United States. It would seem to follow that not only the rule of nationalization should be uniform, but the law of bankruptcy should be also uniform; and of this opinion were the supreme court of the United States in the case of Sturges vs. Crowningshield, (4 Wheaton 196.) The power of coining money is expressly given to the federal government and expressly taken away from the states. If this power had not been taken away expressly, I presume little doubt exists, that the states would have re- tained it, because an exercise of this power by the states would not have been inconsistent with an exercise of it by the federal govern- ment ; nor would it have been more inconvenient to use the coin of dif- ferent states than to use the coin of foreign powers. "What I have observed of the powers already noticed, will apply 340 CONSULAR CASES with equal force to all the powers enumerated (222) in the constitu- tion. Where powers are given exclusively to the federal government, or where expressly taken away from the states, the states cannot ex- ercise them; or when the power given to the federal government, is inconsistent or incompatible with the exercise of that power by the states, the states are excluded. But when power is given to the fed- eral government, and not expressly taken away from the states, and the exercise of such power by the states is not incompatible or in- consistent with the use of it by the federal government, the power is concurrrent. The correctness of the rule, has, I believe, never been questioned. And why should a state be prevented the exercise of a power which is not expressly taken away from her? which is not ex- clusively given to the federal government, and the exercise of which power by the state, can lead to no inconvenience ? Nay, where the ex- ercise of that power, not only does not produce inconvenience to the citizens of the United States, but where the abandonment of it by the state would necessarily lead to great inconvenience, as in the case be- fore the court? I shall now proceed to enquire if the constitution of the United States has expressly granted to the federal government exclusive jur- isdiction over consuls, or if the exercise of jurisdiction in such cases by the states, is incompatible with the exercise of such power by the fed- eral government. It is no where expressly taken away from the states ; if it there- fore be not exclusively given to the federal government, or the exer- cise of it by the states, be not incompatible with the exercise of it by the federal government, I shall conclude, that the states have concur- rent jurisdiction. The words of the constitution are "The judicial power shall ex- tend to all cases in law and equity, arising under this constiution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other pub- lic ministers and consuls, in all cases of admiralty and mari-(223) time jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states, &c. ' ' The words "extend to all cases affecting consuls," do not seem necessarily to imply, that the state courts are excluded jurisdiction. But it is said, that in as much as the word all is prefixed "to cases in law and equity; to cases affecting ambassadors; to cases of maritime and ad- miralty jurisdiction," and is not prefixed "to controversies to which the United States are a party; to controversies between two or more states, &c." the constitution must have intended to give exclusive jurisdiction in the first, and only concurrent in the last. I cannot perceive, that the introduction of the word all has produced the small- 341 CONSULAR CASES est effect on the meaning of this section. Were it omitted altogether, or attached to every branch of the section, its meaning would be the same. "My estate" means all my estate, and "all my estate" can mean nothing more than my estate. I regard the word all as surplus- age where it does occur, and of course unnecessary where it does not occur. But the invariable practice of our courts will furnish higher testimony of the incorrectness of the construction contended for, than verbal criticism can afford. It will be observed that the word all is prefixed to cases of admiralty and maritime juris- diction, and yet the state courts invariably sustain action for seamen's wages. But can it be supposed that the constitution intended to ex- clude the state courts from all jurisdiction over consuls, and yet meant to give them concurrent jurisdiction over controversies to which the United States were a party? or to controversies between two or more states? and yet this would be the case, if the construction con- tended for were to prevail. As I am not satisfied to give to the word, all, in this section, the importance which has been attached to it, I shall proceed to enquire if the power now in question be one of those, the exercise of which by the states would be incompatible with the use of it by the federal gov- ernment. (224) Should a consul violate the law of the United States, or the constitution of the United States, or a treaty made by the United States, he ought to be amenable to the federal courts, and so far has the constitution, I think, given jurisdiction to the federal courts: But when a consul offends against the criminal laws of the state, with which the federal courts have no concern, can it produce any incon- venience to permit the state courts to exercise jurisdiction? Can the punishment of an offense against the state laws, operate injur- iously to the United States? Were consuls like public ministers, pro- tected by the law of nations, they ought not, and would not be amen- able to the laws of either government : But as they are not privileged, because they are not the representatives of their nations, but mere private agents, no embarrassments can follow an exercise of jurisdic- tion over them by the states, that might not follow an exercise of sim- ilar jurisdiction over any other strangers. I am the more disposed to adopt such a construction as would save the criminal jurisdiction of the state, from the difficulty of so reconciling the different parts of the section as would lead to a practical result. The second paragraph of the section declares, that in all cases af- fecting ambassadors, public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original juris- diction. Original here aj^pears to mean exclusive jurisdiction. In the case of Marbury vs. Madison, (] Cranch 174,) this point has been 342 CONSULAR CASES fully investigated, and I think, satisfactorily decided. Should the state courts then be deprived of jurisdiction, it follows, that consuls are amenable to no court, but the supreme court of the United States. They cannot be tried in the supreme court of the United States for two reasons. 1st. Because the constitution in the very section under consideration, declares, that "the trial of all crimes shall be by jury, and the supreme court of the United States have no jury: And if congress should provide a jury, it would then be impracticable, be- cause, (225) in the very same section, it is further declared that all crimes shall be tried in the state where they have been committed. The state courts then must retain their jurisdiction, or consuls are virtually amenable to no courts. It is by no means complimentary to the wisdom of those who framed the constitution, to give to it the construction contended for. I believe I do them more justice in sup- posing, that it was their intention to subject consuls to the jurisdic- tion of the supreme court of the United States only for violations of the constitution, the laws of the United States and treaties, and from the state courts they did not mean to take jurisdiction over offences against the laws of the state. There is another view of this subject, which must not be omitted. In the case of Sturgis vs. Crowningshield, (4 Wheaton 197) it was decided, that it was not the mere existence of the power but its exer- cise which is incompatible with the exercise of the same power by the states. Had the constitution then given to the national government ex- clusive jurisdiction over consuls, in as much as they have not exercised this power, it is retained by the states. I am aware, that a distinction may be attempted between the legislative and judicial powers of the federal government, and that my reasoning may be admitted as correct with respect to the former, and be thought inapplicable to the latter. I have only to say in the language of the profound commentator on the constitution, "though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are in the main just, with respect to the former as well as to the latter; and under this impression I will lay it down as a rule that the state courts will retain the jurisdiction they have, unless it appears to be taken away in one of the enumerated modes. I am of opinion therefore, that the plea ought not to (226) have been sustained, and that the decision of the circuit court ought to be reversed. JUSTICES BAY AND COLCOCK, concurred. MR. JUSTICE NOTT dissented. Whether the consul of a foreign state is amenable to the local jur- 343 CONSULAR CASES isdiction of the country in which he resides for a violation of the laws of that country, is a question on which I shall give no opinion, because I consider it one belonging to the courts of the United States, to decide, and not to this court. But that the jurisdiction belongs ex- clusively to the courts of the United States, is too clear to my mind to admit of hesitation. And whether I look to the particular phraseology of the constitution, to the class of cases with which this is associated in that instrument, or to the general policy of the measure, I am equally lead to that conclusion. The individual states taken unconnected by the articles of con- federation, would be considered as separate, sovereign and independ- ent states. The government of the United States considered in its federal capacity, is constituted of that portion of sovereignty which the in- dividual states have surrendered or thrown into one common stock, for the benefit of the whole. That government therefore is as sov- ereign and independent over all matters thus surrendered as the government of each state is over those w^hich are retained. It would seem to result as a necessary consequence of a govern- ment so organized, that there must be three distinct classes of judicial cases : 1st. Those of a general nature, involving the interest of the United States in their federal or aggregate capacity. 2d. Those of a mixed character, involving the common and mu- tual interests of the general and state governments, &c. 3d. Those of a local nature, which belong exclusively to the in- dividual states. (227) Over the first class, the courts of the general government rau-st be permitted to exercise exclusive jurisdiction. Over those of the second, they possess a jurisdiction concurrent with the several states. And the jurisdiction of the third belongs exclusively to the courts of the individual states. Having thus seen, that these three classes of cases must neces- sarily exist, the nature of the cases would, in most instances, enable us to refer them to the proper jurisdiction without the aid of the constitution. But the framers of that instrument having considered it a matter of too much importance to be left to construction, have dis- tinctly marked out by metes and bounds the jurisdiction to which each shall belong. The 2d. section of the third article of the con- stitution pro\'ides, that the judicial power of the United States shall extend to all cases in law and equity arising under this constitution, the laws of the United States and treaties made, or which shall be 344 CONSULAR CASES made under their authority; to all cases affecting ambassadors, pub- lic ministers and consuls; in all cases of admiralty and maritime jur- isdiction ; to controversies between two or more states ; between a state and the citizens of another state; between citizens of different states ; between citizens of the same state, claiming lands under grants of different states, and between a state and the citizens thereof and foreign states, citizens or subjects. This section embraces the two first classes above mentioned. It was unnecessary to notice the third, because all cases not delegated to the courts of the United States, be- long exclusively to those of the several states. Those belonging to the first class are all cases arising under the constitution, the laws of the United States and treaties made or which shall be made under their authority; all cases affecting ambassadors, public ministers and con- suls, and all cases of admiralty and maritime jurisdiction. The second class includes all the other eases which follow in the succeeding part of the section. I have had occasion heretofore to consider this clause (228) of the constitution. But as that opinion has not been published, I can- not by reference to it show the train of reasoning to which I must now resort in support of my opinion. And I shall therefore be imder the necessity of repeating what I have already said on the same sub- ject. The distinction between the two classes will be discovered in the language of the constitution. The judicial authority of the United States is extended to all those of the first class. In relation to the second the word, all, is omitted. If the jurisdiction of the United States courts extends to all of the first class, then there is none to which it does not extend, and the jurisdiction must be exclusive. To this it is answered, that the addition of that word does not enlarge, nor the omission of it restrict the meaning of the words with which it is connected : That it may be stricken out of the first class or added to the second, and the meaning will be precisely the same. I may perhaps admit, that if it had been carried through the whole section, it would not have given the United States court exclusive jur- isdiction over all the eases therein specified; and that the omission of it altogether might not have given the state courts concurrent juris- diction in all. But it is the addition of it in one part, and the omis- sion of it in another part of the same section, that constitutes the dis- tinction. I have assumed a position, which, I suppose, will not be denied, that there are some cases which belong exclusively to the courts of the United States. And it must be supposed that it was intended to give the constitution some characteristic feature by which those cases 345 CONSULAR CASES might be distinguished. And if it be by the addition or omission of a single word and the intention be apparent, we must give effect to it. "When we see it studiously repeated in relation to all the first enu- merated cases, and studiously omitted when speaking of the second, we cannot suppose, that such a change of phraseology was made ■snthout some object. It would be doing injustice to the venerable authors of that instrument, every word of which may be (229) looked upon almost as a monument of prophetic wisdom, to suppose, that it happened by accident and not by design. And if it may produce the effect which I have supposed, and can produce no other, then we have a right to conclude, and indeed I think we are bound to conclude, that, that alone was the object and no other. I apprehend, that it will be admitted, that all the other eases comprised in the same class belong exclusively to the courts of the United States: And if so, I cannot perceive upon what principle this particular case can be denied that privilege. If however I am mistaken in supposing, that, that point will be conceded, I must once more reconcur to the cases there mentioned, and I think, from an attentive perusal of them, the conclusion will appear inevitable. The first are cases arising under the constitution ; the laws of the United States and treaties made under their authority. When the United States in a federal capacity assumed the powers of sovereignty, it became necessary that they should possess all the means of carrj'ing those powers into effect. That the operations of every government should be carried on through the instrumentality of its own agents, is an essential attribute of sovereignty. And for that purpose the powers of the legislature and judiciary must be co-or- dinate and correlative. It was particularly proper therefore, that all those cases should be given exclusively to the court of the United States; otherwise the general government would be indebted to the courtesy of the states, for the exercise of their most important func- tions. That questions of this sort may come incidentally before the state courts and must be decided by them, I have no doubt. Such were the cases of Potter and Bulow vs. the City Council, and Alexan- der vs. Gibson, (1 Nott & M'Cord 527, 480,) decided in this court. But I presume it will not be contended, that we have a direct au- thority over such cages. The next description of cases embraced in its catalogue are cases affecting ambassadors, public ministers and consuls. To these it is answered, that ambassadors and (230) public ministers are not amen- able even to the courts of the United States. That is a question on which it is not my intention to give any opinion. It is sufficient for my purpose, that those who made the constitution supposed, that such 346 CONSULAR CASES cases might arise, and made provision for them by consigning them exclusively to those courts. Can it be supposed, that the persons to whom was confided the important duty of forming the constitution, did not foresee the difficult and delicate questions which would nec- essarily arise out of our relations with foreign nations? Ambassadors and public ministers represent the persons of their sovereigns. Their business is with the United States, and not the individual states. And it would have been unwise and improper to have hazarded the peace of the country by subjecting their rights or persons to the jurisdiction of the state courts over which the general government had no control. It was equally for the peace and security of the country and foreign ministers, that all cases affecting them, should be placed in the hands where it appears to me most manifest, that they have been placed. The last description of cases included in this list, is cases of ad- miralty and maritime jurisdiction. These cases springing out of the source from whence most of our collisions with foreign nations might be expected to arise, it was equally necessary and proper, that those also should be confined to the tribunals of the general government. But I believe it is so universally admitted, that the state courts have no jurisdiction over admiralty and maritime cases, that I will not dwell longer on the subject. I have now gone through with all the cases over which I consider that the courts of the general government have exclusive authority. And when I find consuls included in the same catalogue, and coupled in the same sentence with ambassadors, and other foreign ministers, I feel bound to consider them as entitled to the same privileges. I do not mean the same privileges allowed by the laws of nations to min- isters of a higher grade, but to the (231) privilege afforded them by the constitution of being tried in the courts of the United States. The same principle of policy which prescribed the jurisdiction of the other enumerated cases equally required that the consuls should be included also. They are the public agents of foreign nations. They have many important public duties to perform. They consti- tute a link in the chain of our foreign relations, which ought not to be broken by the interference of state authority. We have had a recent instance of the deep interest which govern- ments take in the privileges of their foreign agents, in the case of the American consul, who was lately imprisoned in Spain : And we can- not suppose that other nations take less interest in their safety than our own. It is a case in which the pride and honor of a nation is concerned, and respecting which it cannot feel indifferent. Indeed, I consider it a question on which the peace of the United States may so much depend, that I cannot but feel some regret that any difference 347 CONSULAR CASES of opinion should exist in this court on the subject. This defendant, I understand, is now the consul of France in another state. Ought he to be dra\vTi from his public duties to save his recognizance from for- feiture? Or be detained from them to atone for his offence by any authority imder the state ? Suppose he should be imprisoned, and his government should think he had been Avronged? Redress would be sought for from the general government, and not from this. If the case was in a court of the United States, the president, from motives of policy, and for the sake of peace, might discharge the prosecution, remit the recognizance or pardon the offence. But he can have no control over it, if the jurisdiction belongs to the state courts. As far, therefore, as policy can influence the decision, it is strongly opposed to the power which we are about to exercise. There were but two grounds taken in the argument on which I felt any diff]cult5\ The first was, that the immunity allowed by the constitution to consuls relates only (232) to transactions connected with their consular functions. The second, that until congress shall make some provision to enable the courts of the United States to exercise their authority, the jurisdiction remains in the state courts. But a moments reflection dissipated all my doubts on the first point. It not only presupposed a right to enquire into the fact of his consularship, but also the extent of his powers and the duties of his office. That is to say, the court may give itself jurisdiction by stripping him of his consular character, or limiting his powers, and then try him for his offence. '* Castigatque, auditque dolos.'^ With regard to the second question, I am not satisfied that con- gress has not made all the provisions necessary to enable the courts of the United States to exercise the jurisdiction vested in them by the constitution, if any such provision was necessary. But it appears to me a question not material to the decision. If the constitution has given the jurisdiction, exclusively to the general government, the omission to exercise it, cannot give jurisdiction to the states. Suppose congress had omitted to provide for the punishment of treason or piracy, would the state courts thereby acquire jurisdiction over those offences? I apprehend not. From any view, therefore, which I have been able to take of the question, I have seen no reason to change the opinion given in the court below. Indeed my confidence in that opinion is increased by the support which it has derived from the very able view taken of a similar question by Chief Justice Tighlman, in the case of Common- wealth of Pennsylvania vs. Kosloff. (2 Am. Reg. 340. see also Mann- hardt vs. Sodenstrom, 1 Fin. 138.) I am disposed to support the sovereignty of the states, but not to 348 CONSULAR CASES invade that of the United States, nor to violate the relations subsist- ing between them. I am afraid that the jarring elements of which our confederacy is composed, are bound together by but feeble hands at best; and I am not disposed to weaken them by assuming an (233) authority which we do not possess, or even wishing for a jurisdiction which we cannot safely exercise. I am of opinion, therefore, that this motion ought not to pre- vail. JUSTICES JOHNSON AND GANTT, concurred. N. B. — The judges were equally divided in the above case, but as by act of assembly "the opinion of the judge who tried the cause, (Mr, Justice Nott) shall not be allowed, and shall have no effect in the final determination of the case," Mr. Justice Huger's opinion is the judgment of the court. (a.) — Burlam. Prin. Pol. Law, 424, part 4, Chap. 15, Molloy de jure Mar. et Naval. B. 1 C. 10. Martens' Law of Nations, B, 7. C. 5, Sec. 1, 2, 3, 4. Bar- buit's Case, case temp. Talbot 281. Triquet et al. vs. Bath, 3 Bur. 1478. S. C. 1 Black, 471. (b.)— 1 Beawes, Lex Mercat. 291. Wickquef. Eights of Em. 40, Martens' Law of Nations, B. 4, C. 3, Sect. 8, and notes. Brown's Admiralty Law 505. Bar- buit's Case, temp. Talbot, 283. Marshall vs. Critico, 9 East, 447. Clarke vs. Cretico, 1 Taunton, 108, 1 Bac. Abr. tit. Ambassadors. STEIN V. BOWMAN, (1839, U. S.) 13 Pet. 209. M'Lean, Supreme Court. (217) Mr. Justice M'Lean delivered the opinion of the court. (Extract) This case was brought originally in the district court of the United States for the eastern district of Louisiana ; and on the trial certain exceptions were taken to the ruling of the court by the (218) plaintiff, and which he now brings before this court on a writ of error. The action was brought by petition, in the form peculiar to the courts of Louisiana, to compel the defendant to render an account as curator of the estate of Nicholas Stone, or Stein, deceased. The plaintiff represents himself as an alien, and as the only heir at law of the deceased. Some time after the defendant had answered the petition, Johann Btein, and others, filed their petition of intervention, denying the statements in the plaintiff's petition, and representing themselves to be the true heirs of the deceased. The cause was submitted to a jury; and on the trial, to sustain his case, the plaintiff offered in evidence certain German documents, 849 CONSULAR CASES for the purpose of using such parts of them as contained the deposi- tions which related to the pedigree of the plaintiff; which were over- ruled by the court, on the ground that they were not duly authen- ticated. And this constitutes the first exception. Several depositions appear to have been taken, but none of them were signed by the deponents. At the close of them it is stated: "After the preceding depositions were read to the deponents, they gave their assent to them and approbation. [Seal] (Signed) R. V. D. Busseke. Seen, for attestation of the preceding signature, of the Royal Amtsvagtey Burgwedel. Limeburg. Royal British Hanoverian Landdrostey. [Seal.] RuEMERN.*' To which is added: — "The subjoined signature of the royal Britannic Land Bailiwick at Limeburg is hereby attested. Hamburg, Sept. 19th, 1834 Royal Britannic Hanoverian Minister Residentis. Im Ausftrage by authority. G. W. Kern.'* [Seal.] In the case of Church vs. Hubbart, 2 Cranch, 187, this court held that a certificate of a consul under his consular seal, is not a sufficient authentication of a foreign law to go in evidence; it not being one of his consular functions to grant such certificates. And also that the proceedings of a foreign court, under the seal of a person who styles himself the secretary of foreign affairs in Portugal, is not evidence. On the principle of this case, it would seem that the court very properly rejected the depositions offered. The certificate and seal of the minister resident from Great Brit- ain in Hanover, is not a proper authentication for the proceedings of a foreign court, or of the proceedings of an ofiScer authorized to take (219) depositions. It is not connected in any way with the functions of the minister. His certificate and seal could only authenticate those acts which are appropriate to his office. The authority to take the depositions by the person before whom thf'V wf re taken no where appears ; and it is not showTi that the Royal Britannic Hanoverian Land Bailiwick, Ruemern, was authorized to attest, as he has done, the signature of R. C. T>. Busseke. If the attestation of the signature, and right of the person who administered the oaths, were duly certified under the seal of a re- sponsible officer, whose appropriate duty it was to give such certificate, it might be received, so far as the authentication goes, as prima facie 350 CONSULAR CASES evidence, though not under the great seal of the state. It may be proper, however, to remark, (though the point was not raised in the court below,) that if the authentication had been sufficient, the deposi- tions would have been inadmissible, they not having been taken under a commission ; which is the only mode by which depositions in a for- eign country can be taken. STEIN V. STEIN'S CURATOR et al., (1836, U. S.) 9 La. Eep. 277. Bullard, Supreme Court of Louisiana, (280) (Extract) The document in the German language was re- jected by the court, on the ground that it was not sufficiently authen- ticated. The only intelligible certificate annexed, is one by the Amer- ican consul at Hamburg, "That F. W. Kern, whose signature is on the annexed documents, is the chancellor of the Hanoverian embassy to Hamburg, and that full faith and credit was due to the same." We are of opinion that the court did not err in rejecting the evidence. It does not appear to be one of the duties of American consuls in for- eign countries, to attest the signatures of public functionaries in countries in which they reside. Church v. Hubbard — 2 Cranch's Re- ports, 187, 237; 4 Martin's Reports, 285 and 85. STEWART V. LINTON, (1902, U. S.) 204 Pa. 207 ; 53 At. 744. Per Curiam, Supreme Court of Pennsylvania. Appeal from court of common pleas, Armstrong county. Action by John Stewart against Phoebe R. E. E. Linton and Adolphus F. Linton. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendants ap- peal. Affirmed. The feme defendant filed an affidavit of defense, which was as follows : "That at the time of the execution of the mortgage in suit, and the power of attorney upon which the actions of John B, Finlay were based, she was a married woman, and was domiciled in the city of London, England, in the kingdom of Great Britain ; that said mort- gage in suit was executed by one John B. Finlay, who held what purported to be a power of attorney for the purpose from this deponent, which said power of attorney was never legally executed by this deponent ; that in the year 1891 this deponent and her hus- band, Adolphus F, Linton, attempted to execute a power of attorney in London, England, kingdom of Great Britain, empowering the said 351 CONSULAR CASES John B. Finlay to transact business for them in the United States of America ; that in the execution of said idea they went before the deputy consul general of the United States of America, resident in London, England, and signed such a power of attorney, and at that time they were informed that he (the deputy consul general) had not the power to legally take the proper acknowledgment to the same, and that it was arranged that they (this deponent and her husband, Adolphus F. Linton) should return to the consulate the next day, and go before the consul general, who had the power to take the proper acknowledgment, and properly execute the said power of attorney; that thereupon they left the said incompleted power of attorney with the deputy consul general, and left the said consulate; that, on re- flection and consideration, she (Pho?be R. E. E. Linton) decided not to execute said power of attorney, and that she (the said PhoBbe R. E. E. Linton) and Adolphus F. Linton never returned to the said consulate, and never did, in fact, execute the said power of attorney, and that the said power of attorney with which the said John B. Finlay attempted to charge the land of this deponent with debts was procured by fraud ; that this deponent asserts as a fact that after the refusal of this deponent and her husband, Adolphus F. Linton, to re- turn to the consulate of the United States in London, England, the said John B. Finlay, by a fraud and in collusion with a clerk in the consulate, procured the power of attorney, which had been signed, but not executed, by this deponent and her husband, Adolphus F. Linton, and caused the erasure of the name of the deputy consul gen- eral, and procured or caused to be procured the signature of the then consul general of the United States of America resident in London, England (John C. New), to the acknowledgment, and as a witness to the said power of attorney, without this deponent and her husband appearing before the said John C. New, consul general as aforesaid, and that thereafter the said John B. Finlay came to America, and began to use the said power of attorney to charge the lands of this defendant with debts, wholly for the use of the said John B. Fin- lay, personally; that, upon being advised of this fraudulent use of the said power of attorney, your deponent immediately revoked the same ; that the mortgage in suit is one of the incumbrances placed upon this deponent's property by the said John B. Finlay, acting undec said power of attorney, before the knowledge of the fraudulent ac- tions of the said John B. Findlay came to this deponent; that this de- ponent never received any of the consideration money mentioned in the mortgage in suit." The opinion of the lower court was substantially as follows: "Nor (\q we |hiJ=ik the position that a deputy consul general had 352 CONSULAR CASES no right to take acknowledgment is sustained by reason or authority. The act of January 16, 1827 (P. L. 9), provides that the acknowledg- ment of a deed by married women or others may be taken in any for- eign country, before any consul or vice consul of the United States ap- pointed for that coimtry. The act of April 9, 1849 (P. L. 527, § 12), provides that the written consent of a married woman to the convey- ance of her property may be acknowledged out of the United States before any minister, ambassador, charge d' affaires, consul, or vice consul. The act of April 2, 1859 (P. L. 352), provides that all am- bassadors, ministers plenipotentiary, charges d' affairs, or others ex- ercising public ministerial functions, may take the acknowledgment of any person. Rev. St. U. S. § 1674 [U. S. Comp. St. 1901, p. 1149], provides that consular officers shall include consul generals, consuls, commercial agents, and none others. Rev. St. U. S. § 1750 [U. S. Comp. St. 1901, p. 1196], provides that every secretary of legation and consular officer shall have power to perform any act which any notary public is authorized to perform within the United States. It has been held that the acknowledgment of a married woman before a United ■States commercial agent in Canada is siifficient. Moore v. Miller, 147 Pa. 378, 23 Atl. 601. If the allegation is that the deputy consul general had no right to take the acknowledgment, that position is equally untenable. ' An American consul in foreign countries can take an acknowledgment; a deputy, in the name of his principal.' 1 Am. & Eng. Enc. Law (1st Ed.) p. 144. Even if the acknowledgment had been defective, it is cured by the act of June 1, 1891 (P. L. 159), which provides that all conveyances heretofore or hereafter acknowl- edged before any deputy consul * * * shall be valid, to all in- tents and purposes, as if the same had been acknowledged before a notary public. "As to the other defense, of want of consideration, it is not well taken. An affidavit of defense to a set. fa. on a mortgage which denies the indebtedness, but fails to deny the execution of the mortgage, is insufficient to prevent judgment. May v. Meehan, 159 Pa. 419; 28 Atl. 204 ; Woods v. Watkins, 40 Pa. 458 ; Stoddart v. Robinson, 54 Pa. 386. It may be true that Mrs. Linton received no part of the con- sideration money of the mortgage. But there is no denial that her attorney in fact did receive it by virtue of the power she had placed in his hands. The affidavit of defense admits that there was an ap- pearance before an officer that we have found competent to take the acknowledgment, and that the attorney in fact 'attempted' to execute it. That being the admitted fact, we think the official certificate is conclusive of every fact appearing on its face. When the affiant further swore she never ' legally ' executed, she drew a wrong legal con- 353 CONSULAR CASES elusion. An affidavit of defense should state facts, not conclusions. On the whole, it seems to us that the affidavit of defense is but a flimsy pretense to postpone the collection of an honest debt." Argued before McCuUum, C. J. and Mitchell, Dean, Fell, Brown, Mestrezat, Potter, JJ. Calvin Ray bum, for appellants, Ross Reynolds, for appellee. Per Curiam. In her affidavit of defense, Mrs. Linton does not aver that she did not appear before the deputy consul general and separately acknowledge her power of attorney to Finlay, and her evasiveness on this point must be regarded as her admission that she did so appear and make the statutory acknowledgment. She, rather, relies upon her averment that her acknowledgment before the deputy consul general was invalid, in which she is mistaken, as is clearly shown by the learned judge below in his references to the several acts of assembly upon the subject. In aU other respects the affidavit of defense is insufficient, and the judgment, for want of its sufficiency, is affirmed. STIFF V. NUGENT, (1843, U. S.) 5 Rob. 217. Bullard, Supreme Court of Louisiana. (Extract) There is a bill of exceptions taken by the defendants, to the admission of the return of a commission, purporting to have been executed by the vice-consul of the U. S. at Liverpool, upon the proof of his reputed character, and that he acted as vice-consul in 1837, and upon proof also of the handwriting of said person. The court did not err. The commission was addressed to the consul, or vice-consul of the U. S., as commissioner named by the court, and it is sufficiently shown, that it was executed by him in that capacity. STTJRGIS V. SLACUM, (1836, U. S.— Argentine) 18 Pick. 36. Wilde, Supreme Court of Massachusetts. Under the act of con^efls of 1792, c. 24, empowering consuls of the United States to take poBsession of the personal estate left by any citizen of the United States who shall die within their consulates, and therewith "to pay the debts due from his estate which he shall have there contracted," a consul is not au- thorized to pay a claim, not reduced to a judgment, for damages for a wrongful act committed by the deceased. The defendant, who was a consul of the United States at Buenos Ayres, being about to visit the United States, appointed K. acting consul during his absence, but the chargS d'affaires of the United States at Buenos Ayres refused to recog- nize K. as such, and performed the duties of consul himself, until the appoint- 354 CONSULAR CASES ment of K. was approved by the government of the United States; and in con- sequence of such refusal, K. was prevented from receiving the emoluments of that office for several months. The charge d' affaires subsequently died intestate, and the defendant, in pursuance of the act of congress of 1792, c. 24, took possession of his property, and, having sold it, transmitted to the plaintiff, who was ap- pointed administrator in this state, an account of the disposition made of it, showing a balance in favor of the estate, which the defendant claimed to retain on account of the intestate's refusal to recognize K. as acting consul. It was held, that the defendant, by setting up such claim, ceased to act under that stat- ute; that he had no lien on the property for the alleged tort of the intestate; and that an action at law might be maintained by the plaintiff against him, in this state, to recover such balance. Assumpsit. The parties stated a case. In April 1825, John M. Forbes, the plaintiff's intestate, was appointed charge d' affaires of the United States to the government of Buenos Ayres, and continued to reside there as such until his death in June 1831. The defendant was appointed consul of the United States at Buenos Ayres in 1824, and upon the death of the intestate, under color of his consular office, took into his possession certain personal property there, belonging to the intestate, and caused it to be sold by public auction, the intestate having no legal representa- tive or other person authorized to take charge of such property, in Buenos Ayres. From the proceeds of the sale, the defendant paid certain debts due from the intestate at Buenos Ayres ; and in August 1832, stated an account of such payments and of the proceeds of such sale, showing a balance in favor of the estate of the deceased, amount- ing to about 5000 dollars. The defendant alleged in the account, that he retained this balance in satisfaction of a claim against the estate of the intestate. The account was transmitted to the plaintiff. (37) The claim of the defendant referred to in the account arose from this cause. On October 31st, 1825, the defendant, being about to visit the United States, executed an instrument, whereby, so far as he had authority, he appointed Robert Kortright, a citizen of the United States, then residing at Buenos Ayres, his agent in all matters appertaining to the consular office and acting consul, during the de- fendant's absence from Buenos Ayres. Kortright accepted the ap- pointment, and the defendant gave notice thereof to the intestate, and requested him, as charge d' affaires, to recognize Kortright as such acting consul, to present him as such to the government of Buenos Ayres, and to procure his recognition by that government. But the intestate refused to comply with such request. By this refusal, Kortright was prevented from exercising the duties of that office, and from receiving the income and emoluments thereof, for several months. The government of the United States af- 355 CONSULAR CASES terwards approved of the appointment of Kortright by the defendant, as acting consul during his absence from Buenos Ayres; and the secretary of state of the United States, by a letter, dated February 16th, 1827. gave notice to the intestate of such approval, and directed him to recognize Kortright as acting consul, and to request his recog- nition by the government of Buenos Ayres. On the receipt of this letter, Kortright was so recognized, and entered on the duties of the office. The intestate, from October 31st, 1826, until he received the let- ter from the secretary of state, assumed and performed the duties and functions of such consular office. The defendant had no evidence showing the amount of the income and emoluments of the office dur- ing that period; but he asserted, that they exceeded the balance of the account. There was no evidence that the intestate charged any fees for executing the duties of the office. Kortright testified in his deposition, taken on the part of the defendant, that there was no agreement between him and the defendant to divide the fees of the office. If upon these facts the plaintiff was entitled to recover in this action, judgment was to be rendered in his favor for such (38) dam- ages as the court should order; otherwise, judgment was to be ren- dered for the defendant. C. P. Curtis, for the plaintiff. J. Mason, contra. The defendant is not liable in any action at law to this plaintiff. The proceedings should have been in the pro- bate court, or by a bill in equity. Under the act of congress, of 1792, c. 24, the defendant became, in fact, the administrator of the intestate. As such he was independent of the administrator in this state, and not subordinate or ancillary to him. There is a total want of privity of contract between the plaintiff and the defendant, and the law will not raise an assumpsit. Grout v. Chamberlin, 4 Mass. R. 611 ; 1 Wms. on Executors, 595; Hagthorp v. Hook, 1 Gill & Johns. 270. The power of an admin i.strator is limited to the jurisdiction within which administration is granted. The property in Buenos Ayres did not vest in the administrator here, and could not be interfered with by him. Goodwin v. Jones, 3 Mass. R. 514; Stevens v. Gaylord, 11 Mass. R. 236 ; Hooker v. Olmstead, 6 Pick. 481 ; Harvey v. Richards, 1 Mason, 381. WILDE. J. doliverf-d the opinion of the court. This is an action of aR.sumpsit, in which the plaintiff claims to recover a balance in the hands of the deff^ndant. in the capacity of administrator of the goods and estate of John M. Forbes, lately deceased. The intestate was 356 CONSULAR CASES charge d' affaires of the government of the United States to the gov- ernment of Buenos Ajtcs, and died at Buenos Ayres in the year 1831. At the time the defendant was consul of the United States at that port, in the exercise of the duties of that office ; and thereupon took into his possession certain personal property of the deceased, there being, and caused the same to be sold at public auction and out of the proceeds paid certain debts of the intestate due at Buenos Ayres, and after- wards transmitted an account thereof to the plaintiff, in which he acknowledges a balance in his hands, which he claims to retain on ac- count of a claim he had on the estate of the intestate. These proceedings are authorized by the act of congress of the United States, 1792, c. 24, § 2. The defence set up is, that the defendant was, by virtue of (39) his consular office and such act of congress, an administrator of the estate of the intestate within the government of Buenos Ayres; that he is only liable to account in the manner prescribed by statute ; and that he is not amenable to the plaintiff within this jurisdiction, and especially not in an action at law. There can be no doubt that this defence would prevail, if the defendant had been appointed admin- istrator in the usual manner, "When there are two or more admin- istrators appointed on the estate of a person deceased, under differ- ent governments, they are in no respect accountable to each other ; but each must administer the estate of the deceased within the jurisdiction where he was appointed, and is to account for it to the court from whom he received his appointment. And that court may order dis- tribution according to the laws of the country where the deceased had his domicile at the time of his death; or may order the balance to be transmitted to the administrator appointed in the country where he had his dimicile. Perhaps after such an order of transmis- sion, an action would lie in favor of the principal administrator; for where any one is under a legal obligation to pay, the law will imply a promise. But however this may be, it is quite clear that without such order no such action could be maintained, the administrations being distinct, and there being no privity between the parties. We are however of opinion, that the defendant is not to be re- garded as an ordinary administrator, but as a receiver or agent ap- pointed by law, and whose duties are prescribed by the statute. These duties in some respects resemble those of ordinary adminis- trators ; but in one respect there is an important difference. The act provides, that the consuls shall collect the debts due to the deceased in the coimtry where he died, and pay the debts due from his estate which are contracted there; shall sell the estate and remit the balance remaining in their hands to the treasury of the 357 CONSULAR CASES United States, to be holden in trust for the legal claimants. But if at any time before such transmission, the legal representative of the deceased shall appear and demand his effects in their hands, they shall deliver them up, being paid their fees, and shall cease their pro- ceedings. If the defendant had complied with the directions of the statute, and (40) had transmitted the balance in his hands to the treasun', as he was bound to do, he would have been protected by the statute. But as he elected to retain the balance, to answer his own claim, he cannot now defend himself imder the statute. After setting up his o\^Ti claim, he ceased to act under the statute; and unless his claim was a valid one, he was bound to pay over the balance to the plaintiff, whom he has recognized as the legal representative of the deceased ; and this by the express words of the statute. Ever since transmitting his account to the plaintiff, he has ceased his proceed- ings under the act of congress, and the only question now is, whether he has a right to retain the balance to answer his own claim. There is no pretence that there are any remaining debts due in Buenos Ayres. and if there were, the defendant is no longer liable for the pay- ment. Has he then any lien on the money in his hands on account of his own claim? The general rule is, that a factor has no lien for a general balance in respect of debts which arise prior to the time at which his character of factor commenced. Montague, 35; Houghton V. Matthews, 3 Bos. & Pul. 485. And we perceive no good reason why the same rule should not be applied in the present case. But it is not necessary to decide the present case upon this principle ; for I appre- hend it is very clear, that no factor or agent has any general lien in respect to torts. He may retain the balance, to be sure, and suffer himself to be sued, and obtain a set-off through the medium of a cross action ; but he has no lien, and no legal right to retain the money in his hands. And there is another difficulty. We do not perceive any legal ground on which the defendant's claim can be sustained. Kortright, if any one, was the party injured by the supposed misconduct of the intestate. He would have been entitled to the fees and emoluments of the office in the absence of the defendant, and he testifies, that there was no agreement between him and the defendant to divide the fees. And if there had been such an agreement, the intestate would have been still liable only to Kortright. But at all events, the defendant cannot retain the balance in his hands on this account. The act of congress only authorizes him to pay the debts of the intestate contracted in Buenos (41) Ayres, and not to pay damages for wrongful acts, which, by the principles of the com- mon law, are not recoverable after the death of the tortfeasor. 358 CONSULAR CASES It appears to us, therefore, that there is no legal ground on which the defense can be maintained ; and according to the agreement of the parties, judgment is to be rendered for the plaintiff. SUGENHEIMER, IN RE, (1899, U. S.) 91 Fed. Rep. 744. Brown, District Court. In bankruptcy. BROWN, District Judge. The referee in charge has certified to the court for decision the question whether certain powers of attor- ney had been properly executed so as to allow a vote by proxy upon a claim of the firm of George C. Mecke & Co. of Bremen, Germany, against the bankrupt. The creditor firm executed before the United States consul at Bremen on February 12, 1897, a very broad power of attorney, which I find was sufficient to authorize proof of their claim in bankruptcy, and a vote in the bankruptcy proceedings, either by the attorneys, or by their substitutes, if the powers were properly ex- ecuted. It is objected that rule 21 of the supreme court in bankruptcy (18 Sup. Ct. VII.) subd. 5, provides only that "the execution of any letter of attorney to represent a creditor . . . may be proved or acknowl- edged before a referee or a United States commissioner, or a notary public," but does not admit proof or acknowledgment before a for- eign consul. The language of the rule, it will be observed, is not exclusive, and the different clauses taken together seem to indicate that the proof of claims of foreign creditors was not within the contemplation of the court in framing this part of the twenty -first rule. Section 20 of the act of congress, provides that "oaths" required by the act may be administered". . . (3) by diplomatic or consular officers of the United States in any foreign country." It is hardly to be supposed that the court could have intended to exclude the proof of foreign letters of attorney before such officers as United States consuls, when these are expressly empowered by the act to administer oaths in bankruptcy proceedings. I therefore decide that the acknowledgment of this power of attorney was sufficient. 2. Mecke & Co. of New York, the attorneys named in the above power of attorney, by Hugo Volkening, one of its members, executed on December 28, 1898, in New York, a letter of attorney appointing three substitutes to vote at creditor's meetings as proxies for the Bremen firm, and acknowledged it before E. A. Pfeffer, one of the substitutes. This power authorizes the three substitutes or "either 359 CONSULAR CASES one of them" to vote at creditors' meetings upon the claim of the (745) Bremen firm. I think the acknowledgment before Pfefler was irregular as respects him. I see no reason, however, why it should not be valid as respects either of the others, so that either of the other two substitutes may lawfully act luader it. Ordered accordingly. TAETAGLIO, IN RE, (1895, U. S.— Italy) 33 N. Y. Supp. 1121; 12 Misc. 45; 5 Moore 124. Silkmnn, Surrogate's Court, New York. Consuls — Authority — Collecting Money for Countrymen A consul of a foreign country in the United States has authority to receive the distributive shares to which persons residing in his country are entitled from the estate of a person dying in the United StateB. Application by the Italian consul general to compel the payment to him of the distributive shares of the widow and minor children of Libretto Tartaglio, deceased. Granted. D. Humphreys and C. H. Ostrander, for petitioner. "Wilson Brown, Jr., for county treasurer. SILKMAN, S. Application is made by the consul general of Italy at New York to have paid to him the distributive shares of (1122) the widow and five minor children in the estate of Libretto Tartaglio, an Italian subject, who died leaving personal property which has been administered in this country, and which distributive shares have been deposited with the county treasurer pursuant to a decree of this court. The widow and children are residents and sub- jects of the kingdom of Italy. The county treasurer opposes the ap- plication upon the ground that the consul general has no authority to receive such distributive shares, and give such an acquittance as will relieve him from responsibility. The rights of subjects of foreign countries, both as to their persons and property, largely depend upon treaty provisions. The treaty between the United States and the kingdom of Italy provides that consuls general "may have recourse to the authorities of the respective countries within their respective districts, whether federal or local, judicial or executive, in order to defend the rights and interests of their countrymen." The term "de- fend," as used, is to be given the broadest meaning, and includes the power to maintain affirmatively the rights of the consul's countrymen, and our local as well as federal judiciary must, in obedience to the treaty, recognize such rights. But, in the absence of such treaty pro- 360 CONSULAR CASES vision, a foreign consul would have much the same power, "We find the rule laid down in Kent: "The practice of our courts is that a foreign consul may assert and defend as complainant party the rights and property of a person of his nation." The consul of a foreign nation recognized by the United States is competent to defend and watch over the interests of persons of his nation, and may bring suits for such purpose without any special authority from the parties in interest. The Bello Corrunes, 6 Wheat. 168. The court says, in the case cited, "that a vice-consul, duly recognized by our government, is a competent party to assert or defend the rights of property of the individuals of his nation in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects wherever the pursuits of com- merce may draw them or the vicissitudes of human affairs may force them is the great object for which consuls are deputed by their sov- ereigns, and, in a country where laws govern and justice is sought for in courts only, it would be a mockery to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it." Foreign consuls have authority and power to administer on the estates of their fellow subjects de- ceased within their territorial consulate. "Wheat. Int. Law (2d Eng. Ed.) 151; Wools. Int. Law, § 96: The right to demand and sue for necessarily implies the authority to acquit and release. In case of a debt due by a resident of this state to the widow and children of Libretto Tartaglio, there would seem to be no doubt not only of the consul's power, but his duty, under the authorities, to demand and collect it, and, if so, I can see no reason in principle that would pre- vent his demanding and receiving moneys or property (1123) depos- ited in court belonging to a subject of such consul 's country. Neither can I see that the infancy of some of the parties affects or limits the right or power of the consul. The question as to what disposition may be made of the property after the consul has received and exported it is something with which our courts have nothing to do; that is to be settled by the laws of authority of the government to which the for- eign subject owes allegiance. An order w^ill be made directing the county treasurer to pay the distributive shares of the widow and chil- dren of Libretto Tartaglio in his estate, deposited with said county treasurer pursuant to the decree of this court, to the consul general of Italy at New York, upon his executing and delivering a proper re- ceipt therefor, Ordered accordingly. 361 CONSULAR CASES TELEFSEN v. FEE, (1897, U. S.— Norway) 46 N. E. 562; 168 Mass. 188. Lathrop, Supreme Court of Massachusetts. Exceptions from superior court, Suffolk county; John Hopkins, judge. Action by one Telefsen against one Fee for assault and battery committed by defendant in arresting plaintiff. There was a verdict for defendant, and plaintiff brings exceptions. Sustained. The substantial facts set forth in the bill of exceptions are as fol- lows: Defendant was a constable of the city of Boston. One Jo- hannessen sued out a writ from the municipal court of that city to re- cover wages alleged to be due him as one of the crew of a steamship of which Telefsen was captain, and on this writ an affidavit had been put, signed by a master in chancery, authorizing the arrest, both writ and affidavit being in proper form. Telefsen was a Norwegian sub- ject in command of the steamship, which was a Norwegian vessel flying the Norwegian flag, and was about to leave the port. Johann- essen was a Norwegian, and had shipped at New York for the run to Boston without signing shipping papers. He left the ship at the latter port, "because his term of service had expired." The arrest was made on the deck of the vessel, while she was lying on the side of the wharf in Boston, at a place w^ithin the territorial jurisdic- tion of the municipal court. Defendant was informed before mak- ing the arrest that the vessel was Norwegian; that Telefsen was a Norwegian subject, and was captain; and that the claim would be adjusted at the consulate of Sweden and Norway, there being such consulate in Boston. After the arrest defendant detained Telefsen on the vessel until he paid, under protest, the amount alleged to be due. Plaintiff asked the court to rule that, by the treaty between the United States and the kingdom of Sweden and Norway, he was at the time exempt from arrest, and that the process was not sufficient to justifj-" the arrest under the circumstances disclosed, plaintiff being a Norwegian and upon and in command of a Nonvegian vessel; but the court declined, upon all the evidence, so to rule, and ruled that defendant was justified in making the arrest, unless the jury found that he used excessive force. Plaintiff excepted to the ruling and the refusal to rule, and the jury returned a verdict for the defendant, John Lowell and Edward S. Dodge, for plaintiff. Bordman Hall, for defendant. LATHROP, J. The municipal court of the city of Boston had no jurisdiction of the action brought against the plaintiff in this case for wages alleged to be due one Johannessen, and the writ upon which 362 CONSULAR CASES the plaintiff was arrested on mesne process was of no effect. By arti- cle 13 of the treaty between the United States and Sweden and Nor- way of 1827 (8 Stat. 352), it is provided that "the consuls, vice con- suls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbi- trators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are com- mitted to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country ; or the said consuls, vice consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It is, however, under- stood that this species of judgment, or arbitration, shall not deprive the contending parties of the right they have to resort, on their re- turn, to the judicial authority of their country." There are similar treaties with other countries, including one with Prussia in 1828 (8 Stat. 382). Many of these treaties are referred to in 7 Am. Law Rev. 417. Later treaties have been made with the Netherlands in 1855 (10 Stat. 1155), with Denmark in 1861 (13 Stat. 605), with Germany in 1871 (17 Stat. 921), and with Italy in 1878 (20 Stat. 729). By article 6 of the constitution of the United States, it is declared that "all treaties made, or which shall be made under the authority of the United States , shall be the supreme law of the land ; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Such a treaty as that with Sweden and Norway has been almost uniformly held to take away all right of action for wages in the courts of this country, by a seaman coming within the scope of the treaty, whether the action be in rem or in personam. Norberg v. Hillgreu, 5 N. Y. Leg. Obs. 177; The Elwine Kreplin, 9 Blatchf. 438, Fed. Cas. No. 4, 426, where the question is considered at length; The Salomon!, 29 Fed. 534 ; The Burchard, 42 Fed. 608 ; The Marie, 49 Fed. 286 ; The Welhaven, 55 Fed. 80. In The Amalia, 3 Fed. 652, jurisdiction was entertained by Judge Fox of the United States district court in Maine of a libel against a Swedish vessel, on the ground that there was no consular representative of Sweden in the district of Maine. But this case has no bearing upon the one before us. An examination of the treaties and authorities above cited makes it plain that the court has no discretion in the matter, and that the local authorities have no right to interfere. "Where jurisdiction is given by a treaty to a con- sul, vice consul, or a commercial agent, he alone has authority to act in determining in the first instance whether wages are due, and the aroownt. 363 CONSULAR CASES (564) It is to be remembered that the United States govern- ment has the same right by the treaty in regard to its vessels in Nor- way, and this right is insisted upon by our government. In the United States consular regulations of 1888 (page 25, par. 66), under the title "Jurisdiction over Dispute between Masters, Officers, and Crews," appears the following: ** Exclusive jurisdiction over such disputes in the vessels of the United States, including questions of wages, is conferred by treaties or conventions with" several govern- ments named, and, among them, Sweden and Norway. And on page 92, par. 273, is also the following: "In many instances, by treaty and consular convention, the United States have secured to their consular officers jurisdiction over questions of wages, shipment, and discharge of seamen." The bill of exceptions is not so full as it should be as to what occurred on the arrival of the ship in Boston. It is merely said that " Johaunessen left the ship at Boston because his term of service had expired." It does not appear whether he had been discharged, or had left without permission of the master, though, perhaps, the more reasonable interpretation of the exceptions is that the statement of the cause of his leaving precludes our assuming other reasons to exist. However, this may be, whether he was discharged or not, there was still the question of wages to be determined; and the defendant had been informed, before he made the arrest, that the claim of Johannes- sen would be adjusted at the consulate of the kingdom of Sweden and Norway. It seems to us impossible to say that there was not such a difference between the master and Johannessen that the consul had not exclusive jurisdiction in the premises. The facts in the case of The Elwine Kreplin are not fully set forth in the report in 9 Blatchf. 438, Fed. Cas. No. 4, 426. But they are found at length in the report of the case in the district court (4 Ben. 413, Fed. Cas. No. 4,427). It was there considered by Judge Benedict that the connection of the men with the ship was severed by mutual consent, and that they were entitled to their wages. While this view of the facts was not fully assented to by Judge Woodruff, his opinion was that, although the men were entitled to their discharge and to be paid off, and the master was in the wrong, yet this matter of difference "was left by the treaty in the hands of the consul," and the libel of the seamen was dismissed. In The Burchard, 42 Fed. 608, Judge Toulmin dismissed a libel for wages against a German vessel brought by an American seaman who had shipped on board, and who claimed to be entitled to a discharge. He stated, however, that he was inclined to take jurisdiction, if the fact had been proved that a discharge had been granted. In the latter case of The Welbayen, 55 Fed. 80, a 364 CONSULAR CASES libel was brought against a Norwegian steamship by a citizen of the United States, for damages and for wages, alleging that he shipped on the vessel at Mobile, for a round voyage to Tampico, and that, on his arrival in Mobile Bay on the return trip, he was put ashore, manacled, and finally discharged at Mobile, without full pay. On the inter- vention of the Norwegian consul, claiming jurisdiction. Judge Toul- min sustained the consul's position, and dismissed the libel. The case appears to have been heard on exceptions to the libel, as the judge concludes the opinion thus: "I am, therefore, constrained to sus- tain the exceptions to the libel, and to order that the libel be dis- missed." It appears, therefore, that the consul of Sweden and Norway had exclusive jurisdiction of the controversy or difference between J'ohan- nessen and Telefsen, and that the municipal court of the city of Bos- ton had no jurisdiction either of the subject-matter or of the persons of the parties in the action which the seaman saw fit to bring against the master. The officer who arrested the master was therefore acting illegally and without justification, and is liable in this action, unless he is protected by virtue of his writ. This presents a question of some difficulty, and one which is not wholly free from doubt. Before proceeding to consider the principal question, it may be well to state briefly certain principles laid down by the courts in regard to which there is little or no dispute . "Where the process is in due form, and comes from a court of general jurisdiction over the subject matter, the officer is justified in acting according to its tenor, even if irregu- larities making the process voidable have previously occurred. Sava- cool V. Boughton, 5 Wend. 171; Earl v. Camp, 16 Wend. 563; Ela v. ahepard, 32 N. H. 277; Dwinnels v. Boynton, 3 Allen, 310; Chase v. Ingalls, 97 Mass. 524; Bergin v. Hayward, 102 Mass. 414; Chesebro v. Barme, 163 Mass. 79, 82, 39 N. E. 1033; Howard v. Proctor, 7 Gray, 128; Hubbard v. Garfield, 102 Mass. 72; Rawson v. Spencer, 113 Mass. 40 ; Hines v. Chambers, 29 Minn. 7, 11 N. W. 129 ; Hann v. Lloyd, 50 N. N. J. Law, 1, 11 Atl. 346. Where, however, the process is void on its face, the officer is not protected. Clark v. Woods, 2 Exch. 395; Pearce v. Atwood, 13 Mass. 324; Eames v. Johnson, 4 Allen, 382 ; Thurston v. Adams, 41 Me. 419 ; Harwood v. Siphers, 70 Me. 464 ; Brown v. Howard. 86 Me. 342, 29 Atl. 1094 ; Rosen v. Fischel, 44 Conn. 371 ; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411 ; Sheldon V. Hill, 33 Mich. 171; Poulk v. Slocum, 3 Blackf. 421. An officer is bound to know the law, and to know the jurisdiction of the court whose officer he is. If, therefore, he does not act in obedience to a precept of the court, and the court has no jurisdiction in the matter, either because the statute under which the court acted is unconstitutional, or 365 CONSULAR CASES there is a want of jurisdiction for any other reason, it would seem that the ofBcer is not protected. There are many authorities to this effect. Fisher v. ]\IcGirr, 1 Gray, 45; Warren v. Kelley, 80 Me, 512, 15 Atl. 4P; (565) Batchelder v. Currier, 45 N. 11. 460; Thurston v. Martin, 5 Mason, 499, Fed. Cas. No. 14,018; Campbell v. Sherman, 35 Wis, 103 ; Summer v, Beeler, 50 Ind. 341 ; The Marshalsea, 10 Coke, 68b; Crepps v. Durden, Cowp, 640; BroAs-n v, Compton, 8 Term R, 424; Watson v. Bodell, 14 Mees. & W, 57, Whether this doctrine ap- plies to a case like the present, where the court had general juris- diction over the subject-matter, but no jurisdiction over the particular controversy between the parties, and no jurisdiction over their per- sons, we need not decide, because, on the facts in this case, we are of opinion that the officer may be held liable. He was informed, before making the arrest, that the vessel was a Norwegian vessel, and the captain of the vessel a Norwegian, and that the claim of Johannessen would be adjusted at the consulate of the kingdom of Sweden and Norway. Being informed of the facts, he was bound to know the law that the court had no jurisdiction over the person of the captain or the subject-matter of the action, Sprague v. Birchard, 1 Wis, 457, 464, 469; Grace v, Mitchell, 31 Wis. 533, 539, 545; Leachman v. Dougherty, 81 111, 324, 327, 328, There are. without doubt, cases which lay down a more stringent rule, and say that the officer need not look beyond his precept, and is not bound to take notice of extrinsic facts; but all of these are cases which are distinguishable from the case at bar. The leading case on this subject is People v, Warren, 5 Hill, 440. The defendant was indicted for assaulting an officer. The inspectors of an election issued a warrant to a constable for the arrest of the defendant for interrupting the proceedings at the election by disorderly conduct in the presence of the inspectors. The defendant offered to show that he had not been in the presence of the inspectors at any time during the election, and that the constable knew^ it. This was held to be rightly excluded. The opinion is per curiam, and is very brief. While it .says that the inspectors had no jurisdiction of the subject- matter, yet the clear meaning is that, if the defendant was not in their presence, they acted in excess of their jurisdiction. Knowledge by an. officer that a man was innocent would, of course, be no excuse for a&saulting the officer, if he arrested the man upon a warrant from a court of competent jurisdiction. An officer in a criminal case is obliged to obey his warrant, whatever his knowledge may be. This disposes, also, of the case of State v. Weed, 21 N. H. 262. Several cases have been called to our attention in which there are dicta to the effect that an officer is not bound to look beyond his precept, even if 366 CONSULAR CASES he has knowledge that the court has no jurisdiction ; but an examina- tion of these cases shows that the facts known to the officer did not affect the jurisdiction of the court, but related to irregularities in the prior proceedings, or to matters merely of defense to the action. See cases above cited. Of course, where the court has jurisdiction of the subject-matter and of the parties to an action, knowledge on the part of the officer or information to him that there is some irregularity in the proceeding can make no difference. Underwood v. Robinson, 106 Mass. 296. Nor can it make any difference that the officer is informed that there is a defense to the action, such as that the defendant has a receipt (Twntchell v. Shaw, 10 Cush. 46) ; or a discharge in insol- vency (Wilmarth v. Burt, 7 Mete. [Mass.] 257) ; or that the defend- ant is an infant (Gassier v. Fales, 139 Mass. 461, 1 N. E. 922). But the question of jurisdiction is a more serious matter, and if facts are brought to the attention of the officer about which he can have no reasonable doubt, and he knows, or is boimd to know, that on these facts the court has no jurisdiction of the controversy, he may well be held to proceed at his peril. We can see no hardship upon the officer in holding him responsible in this case for an illegal arrest and for a false imprisonment. If an officer has reasonable cause to doubt the lawfulness of an arrest, he may demand from the plaintiff a bond of indemnity, and so save himself harmless. Marsh v. Gold, 2 Pick. 285, 290. We are not aware that this case has ever been doubted, and in practice bonds of indemnity have often been required. In the case at bar, after receiving full information, he chose to proceed, and, in defiance of the treaty, to subject the subject of a foreign nation to a gross indignity, for the purpose of extorting money from him, luider the guise of a precept, which the court had no jurisdiction to issue, and which it would not have issued, had the facts been before it. We approve of the language of Mr. Freeman in Savacool v. Bough- ton, 21 Am. Dec. 204, where, after a discussion of the cases bearing upon the question of the liability of an officer, he says: "We ap- prehend, at all events, that the protection of process cannot so far extend as to protect an officer who, from all the circumstances of the case, does not appear to have acted in good faith, and whose conduct shows that his eyes were wilfully closed to enable him not to see and know that he was too ready an instrument in the perpetration of a grievous wrong." In the opinion of a majority of the court the in- struction requested should have been given. Exceptions sustained. KNOWLTON, J. (dissenting). It seems to me that the opinion of the majority of the court is wrong, in holding that the defendant was bound to receive statements made by the plaintiff or others for 367 CONSULAR CASES the purpose of determining whether he could lawfully serve a writ which was regular in form, and which on its face showed a case within the jurisdiction of the court. The exceptions on this point present a naked proposition of law, and raise no question in regard to the good faith of the defendant in performing his official duty. The writ which he served stated an ordinary case for the collection of a debt. An officer is bound to know the law, even to the extent of determining whether a statute on which his process is founded is or is not constitutional. But for the facts, he is not called upon to take the testimony of anybody in regard to anything outside of the state- ments contained in the process, nor even to act upon what he believes to be his own knowledge. The jurisdiction which the court must have in order to justify him is jurisdiction of the case stated in the writ. It may turn out that there was no real case upon which to issue a writ, and that the prosecution is grossly malicious, or that there is a real case materially different from that stated, and which does not come witliin the jurisdiction of the court ; but the officer is not bound to inquire into matters of this kind. This has been held in a great many cases in ]\rassachusetts and elsewhere, and the reasons for the rule have been elaborately stated in different jurisdictions. These reasons seem to me fully to cover the present case. Chase v. Ingalls, 97 Mass. 524; Cassier v. Fales. 139 Mass 461, 1 N. E. 922; Donohoe V. Shed. 8 Mete. (Ma-ss.) 326; Clarke v. May, 2 Gray, 410; Wilmarth v. Burt, 7 Mete. (Mass.) 257; Twitchell v. Shaw, 10 Cush. 46; Under- wood V. Robinson. 106 Mass. 296. 297; Rawson v. Spencer, 113 Maas. 40-46; Fisher v. ]\IcGirr. 1 Gray, 1-45; State v. Weed, 21 N. H. 262; Batehelder v. Currier, 45 N. H. 460; Watson v. Watson, 9 Conn. 140; Warren v. Kelley, 80 Me. 513-531, 15 Atl. 49; Earl v. Camp, 16 Wend. 562 ; Webber v. Gay, 24 Wend. 485 ; People v. Warren, 5 Hill, 440 ; Hann v. Lloyd, 50 N. J. Law, 1, 11 Atl. 346 ; Taylor v. Alexander, 6 Ohio. 147; Henline v. Reese, (Ohio Sup.) 44 N. E. 269; Wall v. Trumbull. 16 Mich. 228, 234. The ca.ses in Wisconsin and Illinois, cited in the opinion, are the only ones that I have been able to find, after considerable investi- gation, which hold a different doctrine. On the authorities cited above, I am unable to see that it makes any difference whether the outside information communicated to the officer, if taken to be true, would show the real case to be one upon which such a precept cannot properly be issued, because it comes within a treaty giving exclusive jurisdiction to another tribunal, or would show the precept to be un- warranted for any one of numerous other causes. That the defendant in the original action happens to be a captain of a Norwegian ship, and to owe the plaintiff in his official capacity, gives him a privilege 368 CONSULAR CASES of which he may or may not avail himself, to take the case out of the general jurisdiction of the court. I think this fact calls for the appli- cation of the same principle as a strictly personal privilege. Indeed, the principle of the cases seems to cover every kind of external fact which operates to take away a jurisdiction that appears to be perfect on the face of the papers. It has been held that an officer may, if he chooses, act upon his knowledge or information of actual facts which show that the court was without jurisdiction, and refuse to serve the writ. Earl v. Camp, 16, Wend. 562; Henline v. Reese (Ohio Sup.) 44 N. E. 269. But this is very different from requiring him, at his peril, to determine questions of fact. I think the exceptions should be overruled. THODOROVICH v. FRANZJOSEF, see Von Thodorovich v. Franzjosef Beneficial Association. THOMPSON V. THE NANNY, (1805, U. S.) Bee. 217; Fed. Cases 13,984. Bee, District Court. [Court refused to take jurisdiction in case between alien seamen and discussed right of jurisdiction of local courts in such cases. — Ed.] THOMPSON'S SUCCESSION, See Lanfear v. Ritchie. TINGLE V. TUCKER, (1849, U. S.) 1 Abb. Adm. 519; Fed. Cases 14,057. Betts, District Court. (523) BETTS, J. The sufficiency of the action taken by the United States consul at Marseilles to exonerate the respondent from liability for the improper imprisonment of the libellants and for their discharge from the ship, is the main point to be considered and disposed of. The proceedings before the consul were had at the instance of the respondent ; and if any deceit or malpractice had been resorted to by him to induce the official act of the consul, he could not claim any immunity or benefit under that act. There is nothing in the case, however, to show improper conduct or blamable motives on the part of the master in referring the subject to the consul, or that he did not act in the belief that the libellants had comniited offences against the laws of the United States, and that the consul had rightful authority to examine into and adjudicate upon the charges, and take order thereon against the seamen. The consul certifies and returns in full the proofs taken by 369 CONSULAR CASES him, and states his proceedings to have been had by virtue of section 5 of article 35 of the consular instructions relative to seamen of the United States. (524) The instructions referred to are not before the court, but they probably have relation to the duties of consuls under the acts of 1S03 and 1840. Section 1 of the act of February 28, 1803, (2 U. S. Stats. 203,) implies the power of a consul to discharge a seaman in a foreign port, and to give a certificate of such act on his part ; as by the provisions of the section such certificate of the consular consent to the discharge re- lieves the master from the penalty imposed for not bringing back to the United States such seaman with the ship. The act of July 20, 1840, in terms requires the concurrence of the seaman and master in an application to the consul in order to auth- orize him to discharge the seaman in a foreign port under the pro- visions of subdivisions 5 and 6 of section 1 of that act. 5 U. S. Stats. 395. The discharge contemplated by those sections is, however, mani- festly one from the obligation of the shipping contract, and has no connection with the authority of consuls in repressing criminal offences committed by seamen, or in bringing them to punishment therefor. Subdivision 11 of section 1 of the same act, (act of July 20, 1840, 5 U. S. Stats. 395,) declares, '* it shall be the duty of consuls and commercial agents to reclaim deserters, and discountenance insub- ordination by every means in their power, and when the local auth- orities can be usefully employed for that purpose, to lend their aid, and use their exertions to that end in the most effectual manner." It is known to be the familiar practice, in French ports espec- ially, for consuls, upon the representations of masters of vessels, and on a proper substantiation of facts, to obtain the interposition of the local police, which of its own authority, commits seamen to prison be- cause of offences on board of their vessels, or for insubordination of conduct. Cases of this nature have for many years been of fre- quent occurrence. It is also a common exercise of authority by American (525) consuls in foreign ports, to send home for trial, in their own ships, or by a different conveyance, seamen accused of crimes committed at sea or in foreign ports. I am not aware that the obligation of ship- ma.sters to bring home such prisoners, or the authority of consuls to transmit them, has ever been directly questioned. Some of our most distinguished admiralty judges have expressed strong doubts as to the power of consuls in the.se respects; and also, whether, in ease seamen are imprisoned abroad or sent home compulsorily by them, 370 CONSULAR CASES such acts exonerate the master from liability to the men for full wages and damages. Those cases will be more particularly adverted to in another view of this subject. The question now raised in this cause, it is to be remarked, was not directly presented in those for decision; and the suggestions of the courts, as to the authority of those acts, were ac- cordingly incidental, and in illustration of the general doctrines of the law. The inquiry in the present case is, whether the consul, upon the facts asserted by him, could lawfully discharge the libellants from the ship, and authorize the master to make up his crew by employing others in their place. The testimony taken before the consul proves that the conduct and threats of the libellants on board of the vessel were highly mutin- ous, and that the officers had reasonable grounds for fear for their lives, and had no power to control or restrain the men, at sea. The testimony of the captain and his wife, taken by the consul, could not be admitted on the trial of the respondent in court, the suit being personally against him for wages. The testimony, also, given by Cooper and Lewis, two of the crew, before the consul, was retracted, or changed in essential features on their examination in this court. Two other persons on board, who were not witnesses be- fore the consul, were examined in court, as were also the libellants each for the others. These proofs rendered the balance of evidence (526) plainly in favor of the libellants against the charge that their acts had been dangerous to the safety of the vessel or her officers. This result of the trial here, does not, however, authorize the con- clusion that the case before the consul did not warrant his proceedings, nor but that the hearing in this court, had it been on an indictment before a jury, where the testimony of the master of the vessel and his wife would have been competent, might have led to the conviction of the seamen of the mutinous conduct charged against them. The point, then, is whether the consular act, upon the proofs before him, in detaching these men from the ship, and ordering them home, to be there dealt with under the laws of the United States, on charges for criminal offences committed at sea, fails to bar their right to demand wages to the end of the voyage, because the evidence before the courts on full hearing disproves the necessity or propriety of the consular order. It is to be observed that the decision of the consul is not given merely at the instance and on the representation of the master and respondent. He examined into the charges officially, and de- cided the course he would adopt upon full hearing of proofs. Judges Hopkinson and "Ware strongly intimate that the act of 371 CONSULAR CASES a consul in confining or discharging a seaman for criminal misconduct abroad, affords no protection to the master on a demand by the sea- man for wages and expenses and damages accruing by his discharge or imprisonment. The IMary, Gilp. 31 ; The William Harris, Ware, 367. The force of these suggestions may, perhaps, be regarded as modified by the views expressed by Judge Ware in the more recent case of Smith v. Trent, (4 N. Y. Leg. Obs. 13.) This was a suit brought by the libellant, a seaman on board of the Nimrod, against the master of the vessel, for the recovery of w-ages. It seems that, by reason of the criminal conduct of the libellant at sea, he was arrested, upon the arrival of the vessel at Point Peter, in the West Indies, and confined in (527) prison, no other civil authority being invoked than that of the American consul at that place. He was subsequently, by order of the consul, sent home in irons to answer to the charges brought against him abroad for such offences. In relation to that case, the judge says: "As it was, it was certainly the duty of the master to call upon the civil authority of the place, and put the affair in a train of judicial examination. The result of that inquiry was, that Smith was sent home as a prisoner to answer for his conduct to the laws of his country. And from the facts developed on the trial here, it appears to me, that the civil authorities were perfectly justified in this course." 4 N, Y. Leg. Obs. 15, 16. Although it is not conceded in this decision, that the consul's discharge of the seaman abroad, and issuing a certificate of such dis- charge, because of his criminal conduct, would bar to the man the recovery of his wages here, yet wages were in fact denied him, be- cause, by his own misconduct, he had disqualified himself from per- forming the services for which wages were to be paid. My mind is better satisfied with the more direct and practical principle applicable to the facts. The rightful authority and duty of the consul to interfere and take a seaman from his ship, when his continuance there is dangerous to officers or men, being recognized, (Ware, 16; The Nimrod, 4 N. Y. Leg. Obs. 13,) I think it results that such practical discharge terminates the connection of the seaman with the ship, and disqualifies him from suing the master or ship for after wages of the voyage, and it is quite immaterial whether the judgment of discharge rendered by the consul in this instance, con- stitutes a bar to the action, if his act legally separated them from the ship and her service. This of course presupposes that there has been no improper col- lusion or deceit on the part of the master or owners, and that the 372 CONSULAR CASES consul has proceeded with integrity and on probable cause in his doings. The consul is personally liable to the (528) party injured, if guilty of any abuse of power, for all damages occasioned thereby. Act of 1840, art. 18 ; 5 U. S. Stats. 397. I apprehend, however, that the sounder and safer doctrine is, that when on clear prima facie proofs he orders a seaman to be discharged from a vessel for criminal conduct threatening the safety of the vessel, or of her officers or com- pany, and transmits him home for trial on the accusations, such discharge is a bar to any continuing claim for wages, that might be enforced if his connection with the vessel still rightfully subsisted. The propriety of the consul's interference is to be determined upon the facts before him at the time, and not by the case which may be shown afterwards on trial. As in the present instance, displacing part of the testimony legitimately admitted by the consul, and in- troducing other not heard by him, may give the case a new aspect, and show that the seaman, though debarred of wages eo omine by the act of the consul, may yet resort to the master for d a is be- cause of their improper severance from the ship. Although the evidence before me is irreconcilably com' ting on many points, I consider the preponderance of it to suppon the de- mand of the libellants for wages up to the time of their discharge, and that no forfeiture or bar of those wages is established by the respon- dent. The expenses incurred by them in Marseilles, by imprisonment or otherwise, were not caused by the master. His application to the consul was that the men should be discharged or taken from the ves- sel. That was granted. Then the consul, following his own judg- ment of his duty in furtherance of public justice, had the men committed to prison, and afterwards sent home, as prisoners for trial. The testimony does not fix upon the defendant any responsibility for these acts, which can be enforced in this form of action. The decree will be, that the libellants, in these respective (529) causes, recover their several w'ages up to the time of their discharge at Marseilles, with costs to be taxed; and that the demand for wages to the termination of the home voyage be denied. Order accordingly. TOIER V. WHITE, (1834, U. S.) 1 Ware 277; Fed. Cases 14,079. Ware, District Court. [Case of suit of consul against master for not depositing ship's papers. Reasons for requiring this deposit. — Ed.] 373 CONSULAR CASES TOPSY. THE. (1890, U. S.— Great Britain) 44 Fed. Rep. 631. Simonton, District Court. [Case in which the district court took jurisdiction in spite of consul's protest. — Ed.] TOWNSHEND v. THE MINA, (1868, U. S.) 6 Phila. 482; Fed. Cases 14,121. Cadwalader, District Court. A seaman of a British vessel, having submitted his claim to the consul, dis- regarded the award and filed his libel. The court declined to exercise jurisdiction. This was a libel for w'ages by the first mate of the brig Mina. Owing to alleged disobedience of orders, whereby part of the vessel's tackle was lost, the captain claimed to defalk from the wages due to the mate the cost of a hawser, etc. The mate referred the question involved, with the concurrence of the captain, to the decision of the British consul at the port of Philadelphia. The consul investigated and decided the dispute. The mate then disregarded the award by the consul, and filed this libel just before the brig left port. Security was entered through the consul's intervention; the (483) vessel sailed; a proctor was retained to defend the cause, and testimony was taken on both sides. Whereupon, the case having been heard upon the alle- gations and proofs and arguments of the respective advocates, the following remarks were made by CADWALADER, J. This was a British vessel. The libellant shipped under articles conformable to the present law of England; but as the voyage was ended on her arrival at this port, he had an option to invoke the jurisdiction of this court, or to ask and submit to the interposition of the British consul. He adopted the latter course; and had the application been rejected by the consul, or improperly acted upon by him, or had the master or o^\^lers of the vessel not responded to the libellant 's request of consular interposition, I might still, with caution, have entertained the jurisdiction. The case, however, went on, in a friendly way, to a decision of the whole subject in controversy by the British consul. Had this decision been so extravagant as to shock the intelligence of a judicial tribunal in a civilized country, I might have disregarded the award or decision. I say "award or decision," without using the words in a strictly technical sense. The result of this case was the decision of a ques- tion of considerable doubt, in part, against the libellant. The consul appears to have taken great pains; and I have his written statement of the account of the libellant, particularly set 374 CONSULAR CASES forth, as he adjudicated and settled it. He decided that there was due to him, in the currency of this place, one hundred and three dollars and seventy-six cents, ($103.76) and the money remains in the consulate for him. It is not for me to decide whether I should have arrived at pre- cisely the same conclusion as the consul did. I am quite sure that he had greater facilities for arriving at a correct knowledge of the facts than I can have. To disregard his decision, would be to establish a precedent which might be very dangerous. It might tempt to much needless and improper litigation, and lead to double dealing on the part of those who, having submitted the decision of similar dif- ficulties to the judgment of a consul, might afterwards, without rea- son, and for improper motives, claim the jurisdiction of this court. If the sum of one hundred and three dollars and seventy-six cents ($103.76) is sent within three days to the proctor for libellant, or, in the event of his refusing to accept it, is paid into court, the libel will be dismissed at the cost of the libellant. This would not be the form of adjudication in a court of common law, where judgment would be given at once for this amount. But I think the judgment of dismissal, after payment, more conformable to the proper method of procedure, in a court of admiralty, where it is unwilling to exercise jurisdiction. I think it my duty to add that the conduct of the consul, in this case, deserves great commendation, and is in striking contrast with the former course of some other consuls in other parts of the world, who, with captious opposition to courts of maritime jurisdiction, have sometimes raised diplomatic questions as to matters of slight (484) importance, and not in themselves very intricate. Such captiousness may often occasion unjustifiable embarrassments, besides much ex- pense and inconvenience. In this case, the consul in no respect inter- fered with the libellant 's invocation of the subsequent interposition of this court, but merely suggested the improbability that the court would entertain the jurisdiction. The consul appears, very properly, to have employed Mr. Mitcheson as proctor and advocate in the cause, but, in form, as proctor and advocate for the respondent, and not of the consulate. TRiaUET et al. v. BATH, (1761, Great Britain) 3 Burr. 1478. Lord Mansfield, In the Court of King's Bench. (1480) (Extract) I remember in a case before Lord Talbot, of Buvot V. Barbut, upon a motion to discharge the defendant, (who was in (1481) execution for not performing a decree,) "Because he 375 CONSULAR CASES was the agent of commerce, commissioned by the king of Prussia, and received here as such;" the matter was very elaborately argued at the bar ; and a solemn deliberate opinion given by the court. These questions arose and were discussed. — "Whether a minister could, by any act or acts, waive his privilege." — "Whether being a trader was any objection against allowing privilege to a minister, personally." — "Whether an agent of commerce, or even a consul, was entitled to the privileges of a public minister." — "What was the rule of decision : the act of parliament; or, the law of nations." Lord Talbot declared a clear opinion — "That the law of nations, in its full extent, was part of the law of England." — "That the act of parliament was declara- tory ; and occasioned by a particular incident. ' ' — ' ' That the law of nations was to be collected from the practice of different nations, and the authority of writers." Accordingly, he argued and determined from such instances, and the authority of Grotius, Barbeyrac, Binker- shoek, Wiquefort, etc. ; there being no English writer of eminence, upon the subject. I was counsel in this case ; and have a full note of it, TKOOP, THE, (1902, U. S.— Great Britain) 117 Fed. Kep. 557. Hanford, District Court. [This case concerns jurisdiction of U. S, courts over foreign ships and seamen similar to that of the Patterson v. Bark Eudora. Affirmed in Kenney v. Blake, 125 Fed. Rep. 672.— Ed.] TWO FRIENDS, (1799, Great Britain) 1 Rob. C. 217, 271. Sir William Scott, High Court of Admiralty. [This case seems to lead to the conclusion that a sailor is con- sidered to be of the nationality of the ship only so far as his duties as a member of the crew are concerned, hence the jurisdiction of a consul over the crew would not exclude the jurisdiction of the local courts in a case foreign to that service and of such a nature as not to materially inconvenience the shipping interests of the consul's coun- try. p. 284 cites case of the Oester Ems where chests of silver from wreck were deposited with the Prussian consul. — Ed.] UNITED STATES v. BADEAU, (1887, U. S.) .31, Fed. Kep. r/j7. Wallace, Circuit Court. At Law. (698) WALLACE, J. This suit was brought in the district 376 CONSULAR CASES court to recover sums of money, amonnting in the aggregate to $10,- 572.64, received by the defendant to the use of the plaintiff between July 1, 1870, and September 16, 1881, as consul general of the United States at London, England. In the final account rendered by the defendant to the government in December, 1882, he credited the gov- ernment, and charged himself, with certain moneys in his hands, less the sura in controversy ; which sum he claimed he was entitled to with- hold out of the moneys in his hands, because it represented the amount of fees he had theretofore erroneously charged against himself in former accounts rendered to the government. The issue upon the trial was whether the defendant was entitled to retain these fees, amounting in the aggregate to $10,572.64, as non-official fees, or whether they belonged to the government as official fees. The case for the government was rested upon the production in evidence of a treasury transcript of the account of the defendant. The nature of the items charged to the defendant in this account, comprising the sum in controversy, appears in the treasury transcript, so that upon the fact of the account it was shown that the defendant had charged himself with fees received for specified acts or services, amounting in the aggregate to $10,572.64; and the only question upon the face of the account was whether these acts or services were official or non- official in their character. The case for the defendant was rested upon his own testimony that the items with which he had originally charged himself, comprising the sum in controversy, were moneys received as fees for the acts and services described and detailed in the account, and upon further testimony tending to show the interpretation and construction of the department of state in respect to the regulations prescribing the duties of consular officers. At the close of the evidence each party requested peremptory instructions to the jury, — the plaintiff, to render a verdict in its favor ; and the defendant, to render a verdict in his favor. The court ruled that the defendant erroneously charged himself originally with the items which comprise the sum in controversy, because they consisted of fees received by him for non-official acts. The counsel for the plain- tiff then asked to go to the jury upon the question whether the fees were received by the defendant for non-official acts, but the court instructed the jury to find a verdict for the defendant. The plaintiff has brought this writ of error to review these rulings, and other rul- ings made during the progress of the trial, to which the plaintiff took exceptions. There is no merit in the exceptions to the rulings of the court 5n admitting evidence. Even if the testimony received should 377 CONSULAR CASES be deemed irrelevant, as the case was not submitted to the jury, the jur}' were not misled. Neither is there any merit in the exception to the ruling of the court refusing to submit any question of fact to the jury. There was no conflict of evidence as to what the acts were for which the fees in controversy were received by the defendant. Whether they were of- ficial or non-official was a question of law. The fees were received by taking (699) affidavits, acknowledgments, and authentications for individuals in transactions which had no relation, directly or remotely, with the official business of the government. As the law was ruled by the court, if the jury had found against the defendant as to any part of the sum in controversy, it would have been the duty of the court to set aside the verdict as against the weight of evidence. The judge, therefore, properly declined to submit any question of fact to the jury. There was no error in the refusal of the court to permit the amendment of the complaint sought by the plaintiff. The motion was addressed to the discretion of the court. The refusal was also a just exercise of discretion, because the complaint fully set out the facts constituting the cause of action ; and an amendment allowing a cause of action for money had and received to be turned into one upon an account stated would have merely tended to introduce technical- ities, and would not have promoted justice. The real question in the case is whether the defendant was en- titled to retain the items with which he originally charged himself, or whether these items were for fees received by him officially, and for which he was bound to account to the government. The district judge, in his disposition of this question upon the trial, assigned reasons for his conclusion that the items represented fees for non-official acts which are entirely satisfactory to this court, and it is unnecessary to recapitulate or enlarge upon them. It is proper to say, however, that the position taken by the defendant that the fees were for services not roquirod by consular regulations, but were for services of a non- official character, which were his personal emoluments, and for which he was not required to account to the treasury department, is fully sustained and justified by the interpretation and construction placed by the department of state upon the meaning of its own regulations and instructions to consular officers. The president was authorized by section 1745 of the revised statutes to designate what services of consular officers should "be regarded as official," besides such as are expressly declared by law. The services for which the fees in con- troversy were charged, if they were official, were so because they had been designated as of that character by the president. The president, 378 CONSULAR CASES in the exercise of his executive power, under the constitution, acts through the head of the appropriate executive department. The heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regu- lar course of business, are presumptively his acts. Wilcox v. Jackson, 13 Pet. 498, 513; U. S. v. Aliason, 16 Pet. 291, 302; Confiscation Cases, 20 Wall. 102, 109; U. S. v. Farden, 99 U. S. 10, 19; Wolsey v. Chap- man, 101 U. S. 755, 759. The regulations of 1870 and 1874 recognize the non-official char- acter of notarial acts, and other acts which a consul may do, "not in his quality of an agent of the federal government, but simply as a citizen of the United States, whose local position and character render him available to his fellow citizens for such services as might have been rendered by private individuals." The interpretation placed upon the regulations by (700) the state department sufficiently ap- pears in the evidence upon the trial. It was the opinion of that de- partment, communicated to consular officers during the time the de- fendant was in office, and uniformly acted upon by that department, that services like those in controversy were unofficial services. The action of the accounting officers of the treasury department, in dis- allowing to the defendant the items with which he had erroneously charged himself, seems to have proceeded upon the assumption that they were more competent to determine what acts performed in the state department, by its subordinate officers under its own regulations, are official, and what are non-official, than that department itself. In a difference of opinion upon any such question it is hardly necessary to say that the judgment of the appropriate executive department will generally prevail. The judgment is affirmed. UNITED STATES v. BEE, (1893, U. S.) 54 Fed. Eep. 112. Gilbert, Circuit Court. [Question relating to time at which consul's salary begins and liability of consul's bondsmen for excess salary paid to consul by error. — Ed.] UNITED STATES v. EATON, (1898, U. S.) 169 U. S. 331; 18 Sup. Ct. Eep. 374. White, Supreme Court. Appeal from Court of Claims. In October, 1890, Sempronius H. Boyd was commissioned as min- ister resident and consul general of the United States to Siam. He 379 CONSULAR CASES qualified and proceeded to his post, and was in June, 1892, engaged in the discharge of his official duties. At that time, being seriously ill. Boyd was granted by the president a leave of absence. Before leaving Bangkok. Siam. Boyd, to quote from the findings of fact, "believing his illness would terminate fatally, and being desirous to protect the interests of the government during his absence, and until the then expected arrival from the United States of Robert M. Boyd, whom Sempronias Boyd desired should act as consul general, the latter called to his aid Lewis A. Eaton (now a plaintiff herein, who was then a missionary at Bangkok), and asked him to take charge of the consulate and its archives. Thereupon the following letter, dated Jime 21, 1892, was written by Boyd: " *U. S. Legation and Consulate General, " 'Bangkok, June 21, 1892. " 'Krom Luang Devawongsee Varoprokan, Minister for Foreign Affairs — Monsieur le Ministre: It is with exceeding regret to me to be forced to abandon my diplomatic and consular duties at the court of his majesty, with the enjoyment, pleasure, comfort, and genuine friendship so marked and distinguished, which the representative of the United States fully appreciated and imparted to his government. " 'All the physicians advise me to go soon to a cold climate. The president has wired me to that effect. In 20 or 30 days I may be strong enough for a sea voyage, of which I will avail myself. I am authorized to designate, and do designate, L. A. Eaton vice consul general until I am able to assiune. If not incompatible with public affairs, I beg you to so regard him. " 'Monsieur le Ministre, I am too weak and feeble to call in person, which I would so much like to have done, and expressed my thanks and that of ray government to the foreign office and attaches. " 'AVith assurance of my high consideration, I have the honor to be, Monsieur le Ministre, " 'Your obedient servant.' " Boyd thereupon administered to Eaton an oath to faithfully dis- charge the duties of the office of vice consul general, etc. The find- ings state that Boyd believed he had authority for this action. Robert ^I. Boyd, who is referred to above, was then in the United States, and, although appointed as vice consul, had not qualified, Sempronius H, Boyd remained in Siam until the 12th day of July, 1892, when he left for the United States; and on his departure he turned over to Eaton, as the representative of the government of the United States, all the archives and property of the legation, Boyd arrived at his home, in the state of Missouri, on August 27, 1892; and although his leave of absence expired October 26, 1892, he did not, on account of 380 CONSULAR CASES illness, return to his post, but remained at his home, where he died June 22, 1894. Eaton, on the departure of Boyd, was the sole person ' ' in charge of the interests of the government at Bangkok, and performed whatever duties were required there of either a minister resident or a consul general, with the knowledge of the department of state and with that department's approval. The department acknow- ledged his communications, and acted upon them as communications from a person authorized to perform the duties of minister resident and consul general in the emergency then existing." On "September 2, 1892, Eaton executed (under instructions from the department of state) an official bond, calling himself acting consul general of the United States at Bangkok. This was received at the department of state, and was approved January 3, 1893. Subsequently, under in- structions from the department of state, dated January 24, 1893, he executed another bond as vice consul general of the United States at Bangkok, which was approved by the secretary of state April 23, 1893. Both of these bonds bore date June 13, 1892, with the knowledge and consent of Eaton's sureties thereon, and were so dated because of a pencil memorandum on each bond when received in blank by Eaton from the department of state, directing him to insert the date of his appointment in the blank space reserved for the date." On November 2, 1892, the secretary of state wrote Eaton, inclos- ing him the commission of Robert Boyd, which had been issued in 1891, as vice consul at Siam. In February, 1893, Robert Boyd ap- peared in Siam; and, in accordance with the instructions of the sec- retary of state, Eaton introduced him as vice-consul, and on May 18th he qualified, when Eaton's performance of the duties of the office ceased. The findings below say : ' ' Eaton rendered to the accounting officers of the treasury his ac- count for salary for the entire period of his service.in which he charged and claimed one-half of the salary of $5000 per annum appropriated for said post of minister resident and consul general, from July 12, 1892, to October 26, 1892, — that is, from the departure of the minis- ter to and including the date on which the leave of absence for sixty days (excluding transit time) expired, — and the full salary, at the rate of $5000 per annum, from October 27, 1892, to May 17, 1893, inclu- sive. "Eaton also rendered with his salary account a return of all fees collected during the entire period of his service, both fees official and unofficial, imcluding fees notarial and fees and fines received in the United States consular court at Bangkok, amounting in all to $245.41. ** Eaton algo rendered to the department of state his account of 381 CONSULAR CASES disbursements from the contingent fund of the legation and consulate general from July 1, 1892, to April 30, 1893, which was there ap- proved. "In the settlement of said accounts by the accounting officers of the treasury, the sum of $5.73, expended by Eaton for candles and lanterns, was suspended for information, which was thereafter fur- nished, but said sum remains disallowed and impaid. "In the settlement of Eaton's salary accounts by the treasury, the total amount of fees received, to wit, $245.41, was charged to him, and covered into the treasury. The one-half salary from July 12, 1892, to October 26, 1892, amoimting to $726.90, was suspended for 'further information,' which was thereafter furnished, but this sum remains vmpaid. The full salary from October 27, 1892, to May 17, 1893, amounting to $2,792.35, as approved by the department of state, was allowed and credited. Deducting from this $245.41 leaves in Eaton's favor a balance of $2,546.94, which was certified to his credit by the first comptroller December 4, 1893, no part of which has been paid." It is inferable from the facts found that the amount of compensa- tion which the accounting ofiicers of the government settled and al- lowed in favor of Eaton, as above stated, was withheld from him, because of a claim advanced by Sempronius H. Boyd to the entire salarj' as minister resident and consul general during a part of the time for which a portion of or the whole of the salary had been al- lowed Eaton. Indeed, on the 16th of June, 1894, Sempronius H. Boyd sued in the court below to recover his full salary as minister resident and consul general from July, 1892, to February 11, 1893. Thereupon, in December, 1894, Eaton commenced his action to re- cover the sums embraced in the following items : (A) For notarial or xinofficial fees charged to him in the settlement of his salary account by report No. 162,708, as aforesaid, as per exhibit C herewith $177 41 (B) For the item of salary suspended in the settlement of his accounts for salary by report No. 162,708, as aforesaid, 726 90 (C) For the balance of salary found due to claimant by report No. 162.708, as aforesaid, and certified to his credit, 2,546 94 (D) For item expended for contingent expenses by claimant, and sus- pended in the settlement of his account therefor by report No. 162.709, as aforesaid 5 73 $3,456 98 The court below consolidated the two cases, and. on its finding the facta above recited, rejected the claim of Sempronius H, 3oyd, 382 CONSULAR CASES his widow having been substituted as a party plaintiff on his death, and allowed the full amount of the claim sued for by Eaton. From this judgment the United States alone appeals. Asst. Atty. Gen. Pradt and Chas. W. Russell, for the United States. John R. Garrison and John C. Chaney, for appellee. Mr. Justice WHITE, after making the foregoing statement of the case, delivered the opinion of the court. The errors relied upon to obtain a reversal rest on three con- tentions: (1) That the appointment of Eaton as acting vice consul was without warrant of law and hence not susceptible of ratification by the state department. (2) Even if the appointment was author- ized by law, the statute conferring the power was in violation of the constitution of the United States. (3) Because, even conceding the appointment to have been valid, the court allowed a sum in excess of the amount which the claimant was legally entitled to recover. We will dispose of these contentions in the order stated. In the third paragraph of section 1674, Rev. St., the following definition is found: "Vice consuls and vice commercial agents shall be deemed to denote consular officers, who shall be substituted, tem- porarily, to fill the places of consuls general, consuls or commercial agents, when they shall be temporarily absent or relieved from duty. ' ' And this definition by congress of the nature of a vice consulship was not changed by the amendment to section 4130 of the revised statutes by the act of February 1, 1876, as the obvious purpose of that act was simply to provide that, where the words "minister," "consul," or "consul general" were generally used , they should be taken also as embracing the subordinate officers who were to represent the prin- cipals in case of absence; in other words, that, where a delegation of authority was made to the incumbent of the office, the fact that the name of the principal alone was mentioned should not be considered as excluding the power to exercise such authority by the subordinate and temporary officer, when the lawful occasion for the performance of the duty by him arose. Provision for the appointment and the pay of vice consuls are found in the following sections of the revised statutes : "Sec. 1695. The president is authorized to define the extent of country to be embraced within any consulate or commercial agency, and to provide for the appointment of vice consuls, vice commercial agents, deputy consuls and consular agents, therein, in such manner and under such regulations as he shall deem proper; but no compensa- tion shall be allowed for the services of any such vice consul, or vice commercial agent, beyon(J nor except out of the allowance made by 383 CONSULAR CASES law for the principal consular officer in whose place such appointment shall be made. No vice consul, vice commercial agent, deputy con- sul, or consular agent, shall be appointed otherwise than under such regulations as have been or may be prescribed by the president." "Sec. 1703. Every vice consul and vice commercial agent shall be entitled, as compensation for his services as such, to the whole or so much of the compensation of the principal consular officer in whose place he shall be appointed, as shall be determined by the president, and the residue, if any, shall be paid to such principal consular of- ficer. * * *" The consular regulations, promulgated with the approval of the president, contain the rules adopted in execution of the powers ex- pressed in the above provisions. When the appointment in contro- versy took place, the regulations of 1888 were in force, and in sections 36, 87 and 471 thereof were found the rules governing the appoint- ments of vice consuls and temporary vice consuls, and the manner of their payment. These sections are as follows : "36. Vice consuls general, deputy consuls general, vice con- suls , deputy consuls, vice commercial agents, deputy commercial agents and consular agents are appointed by the secretary of state, usually upon the nomination of the principal consular officer, ap- proved by the consul general (if the nomination relates to a consulate or commercial agency), or if there be no consul general, then by the diplomatic representative. If there be no consul general or dip- lomatic representative, the nomination should be transmitted di- rectly to the department of state, as should also the nomination for subordinate officers in Mexico, British India, Manitoba and British Columbia. The nomination for vice consul general and deputy consul general must be submitted to the diplomatic representative for ap- proval, if there be one resident in the country. The privilege of mak- ing the nomination for the foregoing subordinate officers must not be construed to limit the authority of the secretary of state, as provided by law. to appoint these officers without such previous nomination by the principal offi(;er. The statutory power in this respect is reserved, and it will be exercised in all cases in which the interests of the ser- vice or other public reasons may be deemed to require it." "87. In case a vacancy occurs in the offices both of consul and vice consul, which requires the appointment of a person to perform temporarily the duties of the consulate, the diplomatic representative has authority to make such appointment, with the consent of the foreign government and in conformity to law and these regulations, immediate notice being given to the department of state. In those countries, however, where there are consuls general, to whom the 384 CONSULAR CASES nominations of subordinate officers are required to be submitted for approval, the authority to make such temporary appointments is lodged with them. Immediate notice should be given to the diplo- matic representative of the proposed appointment, and, if it can be done within a reasonable time, he should be consulted before the ap- pointment is made. If such a vacancy should occur in a consulate general, the temporary appointment will be made by the diplomatic representative. ' ' "471. The compensation of a vice consul general, vice consul, or a vice commercial agent is provided for only from that of the principal officer. The rules in respect to his compensation are as fol- lows, viz: "(1) In case the principal officer is absent on leave for sixty days or less, in any one calendar year, and does not visit the United States, the vice consular officer acting in his place is entitled to one- half of the compensation of the office from the date of assuming its duties, miless there is an agreement for a different rate, the principal officer receiving the remainder. But after the expiration of the sixty days, or after the expiration of the principal's leave of absence (if less than sixty days), the vice consular officer is entitled to the full compensation of the office. "(2) If the principal visits the United States on such leave and returns to his post, the foregoing rule wall include the time of transit both from and to his post, as explained in paragraph 460. But if the principal does not return to his post, either because of resigna- tion or otherwise, the rule will embrace only the time of absence, not exceeding sixty days, together with the time of transit from his post to his residence in the United States." It is plain that the above sections of the revised statutes confer upon the president full power, in his discretion, to appoint vice con- suls and fix their compensation ; that they forbid any appointment, except in accordance with the regulations adopted by the president, with a limitation, however, that the compensation of these officers, if appointed, should be solely "out of the allowance made by law for the principal consular officer in whose place such appointment shall be made." The regulations just quoted come clearly within the power thus delegated. The legality of the appointment in question is then first to be determined by ascertaining whether it was authorized by the regulations. Before analyzing the text of the regulations, their general purpose must be borne in mind. The first section referred to (36) lodges the power in the secretary of state in all cases to appoint a vice consul or a vice consul general. The manifest object of the provision was to prevent the continued performance of consular 385 CONSULAR CASES duties from being interrupted by any temporary cause, such as ab- sence, sickness, or even during an interregnum caused by death and be- fore an incumbent could be appointed. This was secured by the desig- nation in advance of a subordinate and temporary official, who, in the event of the happening of the foregoing conditions, would be present to discharge the duties. Section 87 provided for a condition of af- fairs not embraced in section 36; that is, for the case where there would arise a temporary inability to perform duty on the part of both the consul and vice consul. The two provisions together secure an im- broken performance of consular duties by creating the necessary ma- chinery to have within reach one qualified to perform them, free from any vicissitude w'hich might befall either the regular incumbent of the office of consul or vice appointee. In view of the recognition of Eaton by the state department, and the express approval of his bond as vice consul, it would result that, at least from the date of the official action of the secretary of state, he would be entitled to be treated as appointed by that officer, under section 36. But, as the sum of the salary allowed by the court below antedated the approval of the bond, we pretermit this question, and come to consider whether Eaton's designation was within the regu- lation for emergency appointments provided in section 87. The first requisite for calling the emergency power into play exacted by this regulation was that there should be a vacancy in the office both of consul general and vice consul. It is clear that the findings establish that there was such "vacancy," within the mean- ing of the regulation. The fact that the minister resident and con- .sul general had obtained a leave of absence from the president, and was sick and unable to discharge his duties, and that the vice consul previously appointed had not qualified, and was absent from Siam, did not, it is argued, justify an emergency appointment, because these facts did not create a "vacancy," in the narrower sense of that word. But the vacancy to which regulation 87 relates cannot be con- strued in a technical sense without doing violence to both the letter and spirit of the statute which authorized the regulation, and with- out destroying the true relation and harmonious operation of the two rules on the subject expressed in sections 36 and 87. That the statute did not contemplate a merely technical vacancy in the office of a consul general, before a vice consul could be appointed, clearly results from the fact that it defines the latter and subordinate officer as one "who shall be substituted temporarily to fill the places of consuls general • * * when they shall be temporarily absent or relieved from duty." The power to make the appointment when the consul general was only temporarily absent of necessity conveyed au- 386 CONSULAR CASES thority to do so, although there might be no vacancy in the office, but simply an absence of the principal officer. The provision of the statute limiting the pay of the vice consul or temporary officer out of the pay of the principal official, the incumbent, is also susceptible of but one construction ; that is, that the temporary officer could be called upon to discharge the duties, even although there was an incumbent, where from absence or other adequate cause he ceased temporarily to perform his duties. Regulation 36, adopted in pursuance of the sta- tute, and providing for the appointment of vice consuls simultaneous- ly or concurrently with the appointment of consuls, and regulating their pay, is as clear on this subject as is the statute. As regulation 87 but adds another safeguard to that created by the general terms of 36, by providing for a contingency not contemplated in 36, — that is, the case of vacancy in both the consular and vice consular offices, — it follows that the word "vacancy," in 87, imports provision for a condition like unto that contemplated by the law, and provided for in 36. Looldng at the two regulations together, and taking in view their purpose, it is obvious that the appointment of the temporary of- ficer for which they both provide depended not solely on a technical vacancy, but included a case where there arose a mere absence or in- ability of the principal and vice officer to discharge the duties of the consular office. Nor is it true to say that because regulation 87 confers the power to appoint an emergency vice consul general * ' on the diplomatic repre- sentative," therefore Boyd, who was both minister resident and con- sul general, was without authority to make a temporary appointment to the latter office. The argument by which this proposition is sup- ported is as follows: As Boyd filled both offices, if there was inabil- ity to discharge the duties of one, there was also like inability as to the other, and therefore incapacity to designate in one character a temporary officer to fill the duties of the other. The error here lies in assuming that, because an official is temporarily prevented from per- forming the duties of his office, thereby he becomes without capacity to make an emergency appointment. There is no essential identity between the two conditions, and it was because of their evident dis- tinction that the regulations caused the existence of one condition (the temporary' failure to perform duty) to give rise to the other (that is, the birth of the power to make the temporary appointment). It would lead to an absurd conclusion to construe the regulation as meaning that the very circumstance which generated the power to make the appointment had the necessarj' effect of preventing the coming into being of the power created. If the two offices of minister resident and consul general be treated as distinct and separate func- 387 CONSULAR CASES tions. altlioiigh vested in the same natural person, the authority was clearly in tlie minister to appoint the vice consul general. If, on the other hand, the two functions be considered as indivisible, the like re- sult follows, since the mere fact that the officer had obtained a leave, or was sick and unable to be present in his office and discharge its duties, did not deprive him of the capacity to make a temporary ap- pointment. In its ultimate analysis, the proposition we have just con- sidered substantially maintains that in no case where the duties of the minister resident and consul general are imited in the one person can an emergency consul general be designated under section 87. It would follow that in every such case where leave of absence was granted or sickness arose, and there was no vice consul general pres- ent, the public interest must inevitably sulfer in consequence of the closing of the consular office. But the very purpose of the statute and regulations was to guard against such a contingency. The evil consequences to result from admitting the proposition is conceded, but the result is attributed, not to error in the argument, but to a pre- sumed omission in the regulations, which should, it is urged, be cor- rected, not by judicial construction, but by an amendment or change in the regulations. The error in the proposition, however, cannot be obscured by assigning the consequences which flow from it to a de- fect in the regulations, when, if a sound rule of interpretation be applied, the supposed omission does not arise. The construction rendered necessary by a consideration of the text of the statute and the regulations, by the remedy intended to be afforded, and the evil which it was their purpose to frustrate, is that the power to designate in case of the absence or the temporary in- ability of the consul general was lodged in a superior officer, if there was such officer in the country where the consul discharged his duty, and, if not, on the happening of the conditions contemplated by the rule, the officer highest in rank was authorized to make the temporary appointment. Doubtless, it was this construction which caused the department of state to recognize Eaton's appointment, and the sec- retary of state to approve his bond as vice consul general. The inter- pretation given to the regulations by the department charged with their execution, and by the official who has the power, with the sanc- tion of the president, to amend them, is entitled to the greatest weight, and we see no reason in this case to doubt its correctness. The claim that congress was without power to vest in the presi- dent the appointment of a subordinate officer called a "vice consul," to be charged with the duty of temporarily performing the functions of the consular office, disregards both the letter and spirit of the con- stitution. Although section 2 of article 2 of the constitution requires 388 CONSULAR CASES consuls to be appointed by the president "by and with the advice and consent of the senate," the word "consul" therein does not embrace a subordinate and temporary officer like that of vice consul, as defined in the statute. The appointment of such an officer is within the grant of power expressed in the same section, saying: "But the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law or in the heads of departments," Because the subordinate officer is charged with the performance of the duty of the superior for a limited time, and imder special and temporary conditions, he is not thereby trans- formed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to per- form under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered. The manifest purpose of congress in classifying and de- fining the grades of consular offices, in the statute to which we have referred, was to so limit the period of duty to be performed by the vice consuls, and thereby to deprive them of the character of "con- suls," in the broader and more permanent sense of that word. A review of the legislation on the subject makes this quite clear. Sec- tion 1674, Rev. St., took its source in "An act to regulate the diplo- matic and consular systems of the United States," approved August 18, 1856. 11 Stat. 52. While in the earlier periods of the government, officers known as "vice-consuls" were appointed by the president, and confirmed by the senate, the officials thus designated were not subor- dinate and temporary, but were permanent and in reality principal officials, 7 Op. Attys. Gen. 247; 3 Jefferson's Writings, 188. During the period, however, while the office of vice consul was considered as an independent and separate function, requiring confirmation by the senate, where a vacancy in a consular office arose by death of the in- cumbent, and the duties were discharged by a person who acted tem- porarily, without any appointment whatever, it would seem that the practice prevailed of paying such officials as de facto officers. In 1832 the department of state submitted to Mr, Attorney General Taney the question of whether the son of a deceased consul, who had remained in the consular office, and discharged its duties, was entitled to the pay of the office. In replying, the attorney general said : "If, after the death of Mr. Coxe, his son performed the services, and incurred the expenses of a residence there, and his acts have been recognized by the government, I do not perceive why he should not receive the compensation fixed by law for such services. He was the de facto consul for the time, and the public received the benefit. * * * The practice of the government sanctions this opinion, as 389 CONSULAR CASES appears by the papers before me; and in several instances similar to this, since the law of 1810, the salary has been paid. * * * The public interest requires that the duties of the office should be dis- charged by some one ; and where, upon the death of the consul, a per- son who is in possession of the papers of the consulate enters on the discharge of its duties, and fulfills them to the satisfaction of the gov- ernment, I do not perceive why he should not be recognized as consul for the time he acted as such, and performed the services to the pub- lic; and, if he is so recognized, the law of congress entitles him to his salary." 2 Op. Attys. Gen. 523, 524. The terms of the law and its construction, in practice for more than -iO years, sustains the theory that a vice consul is a mere sub- ordinate official, and we do not doubt its correctness. We come, then, to consider the errors assigned as to the amount of the salary. Prior to February 26, 1883, the consular official at Bangkok was of the third class, and his salary was $3,000. At the date mentioned (26 Stat. 324), an appropriation was made for minister, resident and consul general, to Siam, $5,000. It was on this salary, which was reiterated in subsequent appropriations, that the allowance to Eaton was computed by the accounting officer of the treasury, and adjudged by the court below'. It is first claimed that as the vice ap- pointment related only to the consul general's office, and not to that of minister resident, there was error in computing the allowance on the basis of the salary of both offices. Although both the statute and the regulations provide for the payment of the vice official from that of the principal officer, and of this fact congress presumably had knowledge, yet in no case for the appropriation for the salary of the minister resident and consul general to Siam has there been an attribution of a portion thereof to one function, and another part to the other. On the contrary, congress has treated the compensation of the two as an indivisible unit. As the duties of the two offices have thus been in- separably blended by congress, and presumably the performance of the function of one office embraced of necessity the discharge of the duties of the other, we do not think the accounting officers erred in treating the salary fixed for the joint service as indivisible, and in not attempting an apportionment, when congress had failed to direct that such division be made, or to furnish the method of making it. Indeed, the finding that Eaton executed all the duties of both offices required of him by the state department, during his temporary tenure, implies that he performed, at the request of the state department, as consul general, all the functions of minister resident. Thus, the facts bring the case directly within Rev. St. § 1738, which provides that a con- sular officer may exercise diplomatic functions, in the country to which 390 CONSULAR CASES he is appointed, when there is no officer of the United States empower- ed to discharge such duties therein, and when the consular officer is "expressly authorized by the president to do so." Conclusive co- gency results from these considerations when it is borne in mind that by the treaty between Siam and the United States there was but one diplomatic and consular officer of the United States in Siam, and that by the express terms of one of the later treaties with Siam the words "consul general of the United States," therein used, are defined to include any consular officer of the United States in Siam. 23 Stat. 782, 783. It is further argued that as the vice consul is required by law (Rev. St. § 1698), before he enters on the execution of his trust, to give bond, there was error in allowing Eaton compensation for a period prior to the approval of his bond by the secretary of state on April 3, 1893. The finding by the court below that Eaton entered on the discharge of his duties when designated, at once communicated with the department of state, and was recognized as consul general, and allowed to perform all the duties of that office, answers this con- tention. It is settled that statutory provisions of the character of those referred to are directory, and not mandatory. In U. S. v. Brad- ley, 10 Pet. 343, which was a suit upon a bond given by one HaU as paymaster, it was contended that, as the bond required by the statute to be executed before an appointee could enter upon the duties of the office had not been furnished, Hall was not accountable as paymaster for moneys received by him from the government. The court, how- ever, held otherwise, saying, per Story, J. (Page 364) : "The giving of the bond was a mere ministerial act for the security of the govern- ment, and not a condition precedent to his authority to act as pay- master. Having received the public moneys as paymaster, he must account for them as paymaster." In U. S. v. Linn, 15 Pet, 313, suit was brought upon an imdertaking executed by Linn as receiver of public moneys, with sureties. A contention was advanced like that made in the Bradley case. The undertaking in question was not ex- ecuted under seal, while the statute required that the appointee should, before entering upon the duties of the office, execute a "bond." In holding the undertaking enforceable as a common-law obligation, and answering the claim that it was not valid for want of a consideration, the court, per Thompson, J., said (page 313) : "The emoluments of the office were the considerations allowed him for the execution of the duties of his office ; and his appointment and commission entitled him to receive this compensation, whether he gave any security or not. His official rights and duties attached upon his appointment." And in referring approvingly to the decision in the Bradley case, and in re- 391 CONSULAR CASES iterating the reasoning of the opinion in that case to which we have al- ready alhided, the court said (page 313) : "According to this doc- trine, which is undoubtedly sound, Linn was a receiver de jure as well as de facto when the instrument in question was given. And, al- though the law requiring security was directory to the officers in- trusted with taking such security, Linn was under a legal as well as a moral obligation to give the security required by law." At page 31-1 it was also observed that it was not the mere appointment of Linn as receiver that formed the consideration of the instrument sued upon, but the emoluments and benefits resulting therefrom. It is true, as claimed by counsel for the government, that in the opinion delivered in the subsequent case of U. S. v. Le Baron, 19 How. 77, expressions are found which appear inconsistent with those to which we have just called attention. But the question presented in the Le Baron case was as to the proper construction of the language of a bond which had been given by a government official, subsequent to his permanent appointment as a deputy postmaster, which bond was executed at the time the appointee was performing the duties of the office under a temporary appointment made during a recess of the senate. Suit having been brought for a breach of the condition of the bond, it was contended that the terms of the instrument stipulated only for liability for the proper performance of the duties of the office under the first appointment. It was held, however, that as the statute required the giving of bond before the appointee could enter upon the execution of the duties of the office, it could not be pre- sumed that the bond was intended to relate back to an earlier date than the time of its acceptance, and that its terms should be given a prospective and not a retrospective operation. In the course of the reasoning on this branch of the case, general expressions were used to the effect that the appointee could not act and the bond could not take effect until its approval; and in discussing the further contention that the appointee was not in office under the second appointment at the time the bond took effect, because his commission had not been sent to him, and was not actually transmitted until after the death of the president who had made the appointment, it was observed that the acta required by the statute to be performed by the appointee be- fore he could enter on the possession of the office under his appoint- ment were "conditions precedent to the complete investiture of the office," and that, "when the person has performed the required condi- tions, his title to enter on the possession of the office is also com- plete." But this general language must be confined to the precise state of facts with reference to which it was used, and does not war- rant the inference that it was intended to overrule the doctrine enun- 392 CONSULAR CASES ciated in the Bradley and Linn eases, whieh were not even referred to. Indeed, that this was not supposed to be the deduction proper to be drawn from the reasoning in the Le Baron case is shown by the fact that in the later case of U. S. v. Flanders, 112 U. S. 88, 5 Sup. Ct. 67, the doctrine of the earlier cases was carried to its legitimate result. In the Flanders case the precise question raised in the case at bar was presented and decided. A collector of internal revenue who was re- quired, before entering upon the duties of his office, to give bond, and who was also required to take an oath before becoming entitled to the salary or emoluments of the office, failed to give bond or take the oath until more than two months after he had been allowed to enter upon the duties of the office. In a suit upon the bond, credit was claimed for compensation for services performed during the period preceding the taking of the oath and giving of bond, and the allow- ance was resisted by the government on the ground that, under the statutory provisions referred to, the right to compensation did not exist. The court, however, held otherwise, saying (page 91, 112 U. S., and page 68, 5 Sup. Ct.) : "If the collector is appointed, and acts and collects the moneys, and pays them over and accounts for them, and the government ac- cepts his services, and receives the moneys, his title to the compensa- tion necessarily accrues, unless there is a restriction growing out of the fact that another statute says that he must take the oath 'before being entitled to any of the salary or other emoluments ' of the office. "But we are of opinion that the statute is satisfied by holding that his title to receive or retain or hold, or appropriate the com- mission as compensation does not arise until he takes and subscribes the oath or affirmation, but that, when he does so, his compensation is to be computed on moneys collected by him, from the time when, under his appointment, he began to perform services as collector, which the government accepted, provided he has paid over and ac- counted for such moneys." This was evidently the view taken by the state department, since on January 24, 1893, when the bond was returned for re-execution in another form, Eaton was directed to insert therein the date of his original appointment. These considerations dispose of all the ques- tions presented, except the contention that there was error in award- ing to Eaton certain items of fees collected, and reported to the treas- ury, and charged to him. included in which were commissions of $67.91 earned on the settlement of two estates, and the sum of $5.73 disbursed by Eaton for lights upon the birthday of the king of Siam. We need only examine the legality of the two items just mentioned, as the sole objection made to the validity of the others is that Eaton was not en- 393 CONSULAR CASES titled to cnargc them, because he was not lawfully acting as consul general. It is contended that the fees collected for settlement of estates should not be allowed, because the services were "official," and we are referred to paragraph 508, subd. 69, of the consular regulations of 1888, as supporting this claim. On the part of the appellee, how- ever, it is urged that the point has been held otherwise in U. S. V. Mosby. 133 U. S. 273, 10 Sup. Ct. 827, where it is said a similar ob- jection to like charges was decided to be without merit. It was held in the Mosby case that the court of claims properly allowed to ]\Iosby (who had been consul at Hong Kong from February, 1879, to July, 1885) the sum of $8.21, as ''five per cent, commission on the estate of Alice Evans, May, 1881." In disposing of the matter, the court said (page 287, 133 U. S., and page 332, 10 Sup. Ct.) that "this evidently was a fee in the settlement of a private estate, and was properly allowed." It does not distinctly appear whether the fee there considered was controlled by the consular regulations of 1874, or by those of 1881. This is obvious when it is considered that the regulations of 1881 w^ere only promulgated in May of that year. The regulations controlling this case are those of 1888, which in the respect in question are substantially like those of 1881, while fees earned prior to May, 1881, were governed by the regulations of 1874, which differed on the subject from tbose of 1881. Indeed, this differ- ence between the two was referred to in the Mosby case, where it was said (page 280, 133 U. S., and page 330, 10 Sup. Ct.) : "Paragraph 321 of the regulations of 1874 is as follows: '321. All acts are to be regarded as "official services" when the consul is required to use his seal and title officially, or either of them; and the fees received therefore are to be accounted for to the treasury of the United States.' It is to be observed that this paragraph used the word 'required,' and does not say that all acts are to be regarded as official services when the consul uses his seal and title officially, or either of them." * * * Paragraph 489 of the regulations of 1881 read as follows: '489. All acts or services for which a fee is prescribed in the tariff of fees are to be regarded as official services, and the fees received therefor are to be reported and accounted for to the treasury of the United States,' except when otherwise expressly stated therein." In view of the fact that it is not certain when the fees in question in the Mosby case were earned, and of the difference between the consular regulations of 1874 and 1881, we shall not inquire into the correctness of the decision in the Mosby case, as applied to the pre- cise facts there considered, but will examine the question here pre- 394 CONSULAR CASES sented in the light of the consular regulations of 1888, and as one of first impression. By section 1745 of the revised statutes, the president is author- ized to prescribe, from time to time, the rates or tariffs of fees to be charged by diplomatic and consular officers for official services, "and to designate what shall be regarded as official services, besides such as are expressly declared by law." Section 1709, Id., makes it the "duty" of consuls and vice consuls to administer upon the personal estate left by any citizen of the United States who shall die within their consulate. The fact that the statute makes it the duty of a consul to admin- ister on personal estates gives rise to the clearest implication that fees for such services were official fees, and the regulations on the subject promulgated by the president clearly support this view. Thus, in the tariff of consular fees contained in paragraph 508 of the con- sular regulations of 1888 it is provided, in item numbered 56, as fol- lows: "56. For taking into possession the personal estate of any citi- zen who shall die within the limits of a consulate, inventorying, sell- ing and finally settling and preparing or transmitting, according to law, the balance due thereon, five per cent, on the gross amount of such estate. If part of such estate shall be delivered over before final set- tlement, two and one-half per cent, to be charged on the part so delivered over as is not in money, and five per cent, on the gross amount of the residue. If among the effects of the deceased are found certificates of foreign stocks, loans, or other property, two and one- half per cent, on the amount thereof. No charge will be made for placing the official seal upon the personal property or effects of such deceased citizen, or for breaking or removing the seals." And, by paragraph 375 of the same regulations, a consular of- ficer is directed to report to the treasury department fees of this char- acter, and, if he be a salaried officer, to hold the same subject to the order of the department. This decisive provision is, besides, supple- mented by paragraph 501 of the regulations, in which it is declared that "all acts or services for which a fee is prescribed in the tariff of fees are to be regarded as official services, and the fees charged and received therefor are to be reported and accounted for to the treasury of the United States, except when otherwise expressly stated therein." As the statute made it the official duty of a consul to admin- ister upon the estates of American citizens dying within the consular district, and the president, by virtue of the power vested in him, has clearly placed such duties in the category of "official servdces," and j-equired the fees earned therefor to be acoounted for as "official 395 CONSULAR CASES fees," it is plain that the aeeoimting officer of the treasury properly- charged Eaton with the amoimt of such fees, and that the court of claims erred in its ruling to the contrary. The groimd of objection urged to the allowance by the court of claims of the item of $5.73 is stated in the brief to be that the dis- bursement "was personal or diplomatic, and wholly foreign to consu- lar business. ' ' "We are imable, however, to say that the court of claims erred in its finding in respect to this item, as follows: "The petty item for lights upon the king's birthday was approved by the depart- ment of state, and appears to be a charge within the discretion of that department. It is therefore allowed." It follows from the foregoing considerations that the only error committed by the court below was in treating the fees for the settle- ment of estates as unofficial, when they should have been held to be official. But this does not render it necessary to reverse the judgment in its entirety, but only to modify the same. Rev. St. §701 ; Ballew V. U. S., 160 U. S. 187, 16 Sup. Ct. 263. This modification will be effected by deducting from the principal sum of $3,456.98, found due by the court of claims, $67.91, being the amount of the fees improper- ly allowed. The judgment of the court of claims is therefore modified by reducing the amoimt thereof to $3,389.07, and, as so modified, it is affirmed.' UNITED STATES v. JUDGE LAWRENCE, (1795, U. S.— France) 3 Dall. 42. Per Curiam, Supreme Court. A motion was made by the attorney general of the United States CBradford) for a rule to show cause why a mandamus should not be directed to John Lawrence, judge of the district of New York, in order to compel him to issue a warrant, for apprehending Captain Barre. commander of the frigate Le Perdrix, belonging to the French republic. The case was this: Captain Barre, soon after the dispersion of a French convoy on the American coast, voluntarily abandoned his ship, and became a resident in New York. The vice-consul of the French republic, thereupon, made a demand, in writing, that Judge La%\TPnfe would issue a warrant to apprehend Captain Barre, as a de- serter from Le Perdrix, by vir-(43)tue of the 9th article of the con- sular convention between the United States and France, which is expressed in these words : "Art. 9. The consuls and vice consuls may cause to be arrested From 18 Bup. Ct. Eep. .374. 396 CONSULAR CASES the captains, officers, mariners, sailors, and all other persons, being part of the crews of the vessels of their respective nations, who shall have deserted from the said vessels, in order to send them back and transport them out of the country. For which purpose, the said consuls and vice-consuls shall address themselves to the courts, judges, and officers competent, and shall demand the said deserters in writ- ing, proving by an exhibition of the register of the vessel, or ship's roll, that those men were part of the said crews ; and on this demand, so proved, (saving, however, where the contrary is proved) the de- livery shall not be refused; and there shall be given all aid and as- sistance to the said consuls and vice-consuls for the search, seizure, and arrest, of the said deserters, who shall even be detained and kept in the prisons of the country, at their request and expense, until they shall have found an opportunity of sending them back; but if they be not sent back within three months, to be counted from the day of their arrest, they shall be set at liberty, and shall be no more arrested for the same cause." 2 Vo. 392. To the vice-consul's demand the judge answered, "that it was, in his opinion, necessary, before a warrant could issue, that the appli- cant should prove by the register of the ship, or role d' equipage, that Captain Barre was, in fact, one of the crew of Le Perdrix. " The vice- consul replied, '"that the ship's register was not in his possession ; but, at the same time, stated various reasons why he should be admitted to produce collateral proof of the fact in question, instead of being ob- liged to exhibit the ship's register itself; and declared, that in such case, he would give the judge all the proof that could be desired." The judge persevering in his original opinion on the subject, that "the mode of proof mentioned in the 9th article of the convention was the only legitimate one, and that he could not dispense with it ; " the vice- consul obtained a copy of the role d' equipage, certified by the French vice-consul at Boston, under the consular seal; and transmitted it to the judge, with another demand for a warrant to arrest Captain Barre ; contending that this copy was entitled to the same respect as the original instrument, by virtue of the 5th article of the convention, which is in these words : "Art. 5. The consuls and vice-consuls respectively shall have the exclusive right of receiving in their chancery, or on board of vessels, the declarations and all the other acts, which the captains, masters, crews, passengers, and merchants of their nation may choose to make there, even their testaments and other disposals by last will : and the copies of said acts, duly (44) authenticated by the said consuls, or vice-consuls, under the seal of their consulate, shall receive faith in law, equally as their originals would, in all the tribunals of the domin- 397 CONSULAR CASES ions of the Most Christian King, and of the United States. They shall also have, and exclusively, in case of the absence of the testamentary executor, administrator, or legal heir, the right to inventory, liqui- date and proceed to the sale of the personal estate left by subjects or citizens of their nation, who shall die within the extent of their con- sulate; they shall proceed therein with the assistance of two mer- chants of their said nation, or for want of them, of any other at their choice, and shall cause to be deposited in their chancery, the effects and papers of the said estates; and no officer, military, judiciary, or of the police of the country, shall disturb them or interfere therein, in any manner whatsoever; but the said consuls and vice-consuls shall not deliver up the said effects, nor the proceeds thereof, to the lawful heirs, or to their order, till they shall have caused to be paid all debts which the deceased shall have contracted in the country; for which purpose the creditors shall have the right to attach the said effects in their hands, as they might in those of any other individual whatever, and proceed to obtain sale of them till payment of what shall be lawfully due to them. When the debts shall not have been contracted by judgment, deed, or note, the signature whereof shall be knowTi. payment shall not be ordered but on the creditor's giving sufficient surety, resident in the country, to refund the sums he shall have unduly received, principal, interest and costs; which surety nevertheless shall stand duly discharged, after the term of one year in time of peace, and of two in time of war, if the demand in dis- charge can not be formed before the end of this term against the heirs who shall present themselves. And in order that the heirs may not be unjustly kept out of the effects of the deceased, the consuls and vice-consuls shall notify his death in some one of the gazettes published within their consulate, and they shall retain the said effects in their hands four months to answer all demands which shall be pre- sented ; and they shall be boimd after this delay to deliver to the per- sons succeeding thereto, what shall be more than sufficient for the demands which shall have been formed." 2 Vol. 384. The judge, however, declared that "he did not consider the copy of the register, to be the kind of proof designated by the 9th article of the convention ; and that till the proof specified by the express words of the article was exhibited, he could not deem himself author- ized to issue a warrant for apprehending Captain Barre." Under thesp circumstances, the minister of the French republic applied to the executive of the United States, complaining (45) of the judge's refusal to issue a warrant against Captain Barre, as a manifest departure from the positive provisions of the consular con-- vention ; and the present motion was made, in order to obtain the 398 CONSULAR CASES opinion of the supreme court, upon the subject, for the satisfaction of the minister. The rule was opposed by Ingersoll and W. Tilgman, who con- tended, I. That the original register of the vessel, or ship's roll, was the only admissible evidence under the 9th article of the convention; and II. That in the present case the judge has, in fact, given a judg- ment; and although a mandamus will lie to compel the judge of an inferior court, to proceed to give judgment, it will not lie to prescribe what judgment he shall give. 1. The treaty has placed the subject in controversy upon a footing different from the law of nations; for, independent of posi- tive compact, no government will surrender deserters, or fugitives, who make an asylmu of its territor>^ This, then, is a new law introduc- tory of a new remedy ; and whenever a new remedy is so introduced, (more especially in a case so highly penal) it must be strictly con- strued. 1 Wil. 164. 4 Bac. Abr. 647, 651. The 9th article of the consu- lar convention, may, therefore, be considered in a twofold point of view — 1st. As to the true construction of the words : and 2d. As to the competency of a copy of the register, or ship's roll, to be received in evidence, by any analogy to the common law rules of evidence. — 1st The words of the article are full and express, that the consul shall prove the deserters, whose arrest he demands, to be part of the ship's crew, "by an exhibition of the register of the vessel, or ship's roll." If those, who drew the instrument, and appear throughout to have per- fectly understood the import of the words they used, had not intended to fix a specific mode of proof, a specific mode would not have been mentioned in this case; but the kind of evidence would have been left at large, as in the 14th article, where, in another case, proof of citizenship is to be made, "by legal evidence." But, in fact, the ship's roll is the best evidence which the nature of the case admits; and, if any other, is allowed, it must depend upon the mere discretion of the judge. The individuals of the French nation, as well as the Re- public, are interested in the construction of the article; since it de- prives them of that protection within our territory, to which they would otherwise be entitled ; and their interest becomes peculiarly im- portant, when we consider the existing circumstances of the nation. Besides, whatever inconveniency might flow from this strict construc- tion, if it is the genuine, fixed, meaning of the treaty, the court can not change it on that account. 4 Bac. Abr. 652, 10 Mod. 344. The inconveniences, however, are agjrravated (46) beyond their real force. The cases contemplated were, obviously, cases of desertion before the vessel left the port, in which it would always be easy to exhibit the register, before a warrant was issued. The act of congress, vesting 399 CONSULAR CASES this jurisdiction in the district judges, may, indeed, be too restricted, inasnuicli as it does not give each district judge a power to issue his warrant in all parts of the United States, by which the necessity of applying to the judge of everj-- district, into which a deserter might escape, and the consequent necessity of exhibiting the original roll on every such application, would be avoided. The inconveniences sug- gested might therefore be obviated by congress; and even the govern- ment of France might introduce a remedy, by directing the original roll in cases of desertion, to be deposited with the consul, and certi- fied copies to be furnished to the captains of the respective ships. But it is contended, that admitting the exhibition of the original roll to be requisite, still it is sufficient to exhibit it before the person is delivered: — it need not be exhibited before the warrant issues to ar- rest him. This, however, can not be the true construction of the ar- ticle, upon a fair analysis of its different parts. In the first part the arrest of deserters only is mentioned, ' ' in order to send them back and transport them out of the country;" — then, it is said, "for which pur- pose (that is, for the purpose of the arrest) the consuls and vice-con- suls shall address themselves to the courts, judges, and officers com- petent, and shall demand the said deserter in writing, proving by an exhibition of the register, or ship's roll, that those men were part of the crew, etc." and the clause of delivery follows, providing, that "on this demand, so proved, the delivery shall not be refused." On what, then, is the judge to ground his warrant, if not on the exhibition of the roll ? there is no other proof mentioned in the article ; and, certain- ly, proof of some kind must be made, before the warrant issues. "No warrant shall issue (says the 6th article of the amendment to the federal constitution) but upon probable cause, supported by oath, or affirmation :" And in this case, if previous proof has been made, there is nothing to prevent the warrant's containing a clause of imme- diate delivery ; since the deserter is only to be committed and im- pri.soned at the instance of the consul. — 2d. If, then, an exhibition of the ship's roll is necessary, the second consideration, arising on the construction of the article, is, whether by analogy to the common law rules of evidence, a copy ought to be received, instead of the original. It is a general rule, that the copy of a deed, or other extraneous proof of its contents, can not be given in evidence, unless it is first shown that the original did once exist, and that it had been destroyed or lo.st, or is in the possession of the adverse party. 1 Vez. 389. Esp. Dig. 780. 782. ]0 Co. (47) 92. In the present case, the only requisite of the rule that is satisfied, establishes the existence of the roll; but proves, at the same time, that it has not been lost or destroyed, and that it is (or at least that it was when the warrant was applied for) 400 CONSULAR CASES in the possession of the consul at Boston. So strictly has the rule been adhered to, that even the acknowledgment of the obligor will not be received as evidence that a bond was executed by him; the sub- scribing witness must be produced. Doug. 205. 4 Burr. 2275. As to the inference drawn by the consul, from the 5th article of the conven- tion, in support of a copy of the roll as competent evidence, the article clearly relates to matters transacted by consuls in virtue of their specified consular powers, but not to the authentication of for- eign instruments, deeds, or commissions. II. But whatever may be the opinion of this court on the con- struction of the article in question, they can not interpose by man- damus, to compel the district judge to adopt their judgment, in- stead of his own, as the rule of decision, in a case judicially before him. The supreme court may, it is true, issue writs of mandamus, in cases warranted by the principles and usages of law; (1 Vol. p. 58. s. 14.) but there is no usage or principle of law to warrant the issuing of a mandamus in a case like the present. By the act of congress (2 Vol. p. 56.) the district judge is appointed the competent judge, for the purpose expressed in the 9th article of the convention ; the consul applied to him as such; and the judge refused to issue his warrant, because, in his opinion, the evidence required by the article was not produced. The act of issuing the warrant is judicial, and not minis- terial; and the refusal to issue it for want of legal proof, was the exercise of a judicial authority. "Where any other court has compe- tent jurisdiction, the court will not interfere by mandamus to control it. Esp. Dig. 668. 4 Burr. 2295. In a variety of cases the stress is laid on the act being ministerial, and not judicial. 1 Wils. 125, 283. Esp. Dig. 662. 663. 666. 669. 512. 552. 530. 1 Stra. 113. 392. 1 Vent. 187. T. Raym. 214. 1 Bl. Rep. 640. 3 Bac. Abr. 531. 1 Burr. 131. 4 Com. Dig. 207. 208. Carth. 450. 2 Stra. 835. Sayre's Rep. 160. It is justly said, however, that a writ of mandamus ought in all cases to be granted, wh^re the law has provided no specific rem- edy, though on the principles of justice and good government, there ought to be one. Esp. Dig. 661. 4 Com. Dig. 205. And, it has been generally said, that writs of mandamus are either to restore a person deprived of some corporate, or other franchise, or right ; or to admit a person legally entitled; 3 Burr. 1267. 2 Burr. 1043. or (upon a more extensive basis) to prevent a failure of justice, to enforce the execution of the common law, and to effectuate some (48) statute; but it has never been allowed as a private remedy for a party, except in cases arising on the 9 Ann. c. 20. Nor has it ever been granted to a person who has exercised a discretionary power. 3 Bac. Abr, 535. 2 Stra. 881. 892. Esp. Dig. 668. 2 T. Rep. 338. Esp. Dig. 668, 2 T, Rep. 338. 401 CONSULAR CASES Esp. Dig. 667. 3 Bac. Abr. 536. Andr. 183. Thus, the writ was refused, where a visitor has exercised his jurisdiction, and deprived a person of his office in a college: 1 Wils 206. 4 Com. Dig. 209. Andr. 176. Esp. Dig. 667; where commissioners have issued a certificate of bankrupts. 1 Atk. 82. 2, Vez. 250. 1 Cook. Bank. L. 499. And it should be shown that the inferior court had made default, for the su- perior court will not presume it. Esp. Dig. 670. Bull. N. P. 199. Upon the whole of these authorities it appears, that a mandamus is founded on the idea of a default; as where an inferior court will not proceed to judgment, or a ministerial officer will not do an act which he ought to do; but there is no instance of a mandaynus being issued to a judge, who has proceeded to give judgment according to the best of his abilities. It ought, likewise, to be observed, that where a fact is doubtful, a mandamus never issues till it is determined by a jury, either on a feigned issue, or on a traverse to the return under the statute : For, how can this court determine what the material fact of the present case is? And if a mandamus is issued, what will be the command? — to receive certain evidence, or, at all events, to issue a warrant for apprehending Captain Barre? If, then, the supreme court take the matter up, in the way proposed, they must examine the proof of Captain Barre 's being a deserter ; and so make themselves the court competent for this business, contrary to the express meaning and language of the law. The attorney general, in reply, premised, that the executive of the United States had no inclination to press upon the court, any par- ticular construction of the article on which his motion was founded: but as it is the wish of our government to preserve the purest faith with all nations, the president could not avoid paying the highest respect, and the promptest attention, to the representation of the minister of France, who conceived that the decision of the district judge involved an infraction of the conventional rights of his republic. In construing treaties, neither party can claim an exclusive jurisdic- tion. If either party supposes that there is in the conduct of the other, a departure from the meaning of a treaty, it is the established course in foreign countries, to apply to the government for immediate redress : and, where that application, for any cause, proves ineffectual, the controversy is referred to a negotiation between the powers at variance. In the present case, however, from the nature of the sub- ject, as well as from (49) the spirit of our political constitution, the judiciary department is called upon to decide; for it is essential to the independence of that department, that judicial mistakes should only be corrected by judicial authority. The president, therefore, intro- duces the question for the consideration of the court, in order to in- 402 CONSULAR CASES sure a punctual execution of the laws ; and, at the same time, to mani- fest to the world, the solicitude of our government to preserve its faith, and to cultivate the friendship and respect of other nations. I. The question is certainly an interesting and important one: but it ought not to be affected by any circumstances respecting the hardship of Captain Barre's fate, or the crisis of French affairs. If Captain Barre suffers any injury, he might, on a habeas corpus be relieved ; and no change or fluctuations in the interior policy of France, can release the obligation of our government to perform its public engagements. The case must, therefore, be considered as an abstract case, depending on the fair interpretation of an article in a public treaty. This article contemplates, 1st. the arrest of deserters from French vessels in our ports — and, 2d. the delivering of those de- serters to the consul, that they may be sent out of the country. The arrest may be made on any kind of proof, the oath of witnesses,^ the confession of the party, or authenticated papers, showing prima facie, that the person against whom the warrant is demanded, belonged to the crew of a French ship. But the delivery is obviously a subsequent act, to be performed after the party has been brought before the judge ; when, not only the allegations against him, but his answers and defence, are heard, and the judge has decided that he is an object ot the article. Natural justice, and the safety of our citizens, re- quire that such a hearing should take place; and it is, indeed, neces- sarily implied in those words of the article ' ' saving where the contrary is proved;" which point to a time distinct from that of issuing the warrant, when the party was not present, had not been heard, and could not therefore have proved the contrary, even if such proof were in his power; as by showing that he never signed the ship's roll, or that he had been lawfully discharged. Neither principle nor analogy to other cases, will justify a call for the original roll, merely to (50) bring the party to a hearing, whatever strictness of proof may be exacted to warrant his being delivered. In England the distinction is xmiformly recognized: the grounds for issuing a warrant are not strong; for finding an indictment they must be stronger; and for conviction and judgment they are always violent. The construction contended for, in support of the motion, involves no inconveniency ; because the judge must receive a reasonable satisfaction before he is- sues his warrant ; and before he delivers the deserter, he may insist ^Wilson, Justice. Does it appear that any oath was taken in this case? Bradford; No: A warrant, which had been issued by the district judge of Pennsylvania — various official letters, — and Captain Barre's own statement, were offered to be produced; but the point was put by the judge on the necessity of producing the original roll, in exclusion of every other species of testimony. This, therefore, is the only question before the court. 403 CONSULAR CASES on the exhibition of the roll: but the adverse doctrine is attended with the most embarrassing consequences. Suppose a man deserts just as the vessel sails on a distant voyage, must she return to port? Accord- ing to the maritime regulations, her register must remain on board; and, in such a case, a deserter could never be surrendered. Again : — Suppose a French vessel of war takes a prize, puts a part of her crew on board, and sends the prize to America, while she remains her- self at sea: the mariners may desert from the prize with impunity, under the very eye of the minister or consul; as the original roll would continue on board the vessel of war. If there are several prizes sent in, the difficulty is proportionately increased. But all those em- barrassments are avoided by a different interpretation of the article: — by allowing the deserters to be arrested, even on a reasonable sus- picion, and to be detained 'till proof of their desertion can be pro- cured. The detention, however, could not, under such circumstances, exceed three months, agreeably to the terms of the treaty; and that part of the article seems strongly to presume the vessel to be absent at the time of the arrest, as it provides for his imprisonment until he can be sent out of the country. On the adverse construction, like- wise, the article must be deemed to regard as one act, the inspection of the roll, the issuing of the warrant, and the surrender of the de- serter; which would operate as a general press warrant, and might become dangerous in the extreme to the liberty of the citizens; for, every man bearing a name enrolled upon the ship's register, would be liable to be arrested and put on board a French vessel, if no hearing took place subsequent to the arrest. Still, however, it is clear, that when the article speaks of a consul's addressing himself to our courts, it is in order to procure assistance "to send the deserters back, and transport them out of the country;" and not merely to obtain an arrest. But the question then arises, whether, even for the purpose of obtaining a delivery of the deserter, there must be an actual pro- duction of the register, or ship's roll? Is that the only proof which can be allowed, or is it merely the specification of one mode of proof, without excluding other modes? The article provides for a case in which there shall, peremptorily, be a delivery; but neither (51) in its terms, nor in its nature, does it preclude a delivery in other eases, where the facts are satisfactorily ascertained by other evidence. The inconveniences of that doctrine would be insurmountable. There must be an original roll to produce in every district, into which a deserter could escape. If the roll were burnt, and all the crew desert, nay, if the deserters themselves were to seize upon and destroy the roll, the judge is not only under no obligation to arrest and deliver them, but he is precluded from doing so. Such a construction, so destructive of 404 CONSULAR CASES the fair advantages of a public compact, ought not to be tolerated. "All civil laws and all contracts in general, (says Rutherford, 2 Inst. B, 2. c. 7. s. 8. p. 827.) are to be so construed as to make them produce no other effect, but what is consistent with reason, or with the law of nature." It is inconsistent with reason, that a provision intended to guard the contracting parties from the inconveniency of the deser- tion of their mariners, should, in the very mode of expression, defeat itself ; and that interpretation, which renders a treaty null and without effect, can not be admitted. Vatt. B. 2. c. 17, s. 283, 287, 290. Nor is the common law without an analogy, competent to obviate the diffi- culty ; for, wherever an original is either a record, or of a public na- ture, and would be evidence, if produced, an immediate sworn copy will avail. 5 Wood. p. 320. Espinasse. As, in the instance of the Cottonian Collection, whose papers are not allowed to be sent abroad, a copy is always received in evidence; and since a ship's register must, from the nature of the instrument and the rules of the marine, be on board, the reason is, surely, equally cogent, for receiving a copy of it in proof of any judicial inquiry, when the ship is necessarily at a distance. The opposite argument goes, indeed, to exclude stronger testimony than the roll; for a deserter's confession of the fact, before the judge, would not be sufficient to dispense with the production of the instrument itself. The constitutions of the United States and of the state of Pennsylvania, seem to have made no provision (except the former in the case of treason) for a conviction by the confession of the party ; yet, the absurdity of proceeding to try a man for a crime, after he has pleaded guilty to the charge, has been too obvious to receive any sanction from the practice of our courts. But that absurdity is urged as law in the present case. Captain Barre had confessed the exist- ence of the roll subscribed by him, and his desertion from the ship, still, it is contended, that the judge must wait for the exhibition of the roll to prove the fact acknowledged; — "to take a bond of fate; and make assurance doubly sure." This, however, would be a mock- ing of justice — a palpable evasion of the treaty. It is said, that the surrender of deserters is an act odious on principles (52) of humanity, as well as policy ; but the remark is not uniformly just. In the case of one army giving encouragement to deserters from another, the sur- render would be faithless and iniquitous; but that bears no analogy to the present case; and, in another case, which is analogous to the present, the United States have thought it so reasonable and right, that they have directed any deserter, under contract for a voyage, to be apprehended, and delivered to the captain of the ship — act con- gress, ch. 29. s. 7. passed 20th July, 1790. But the article of the treaty is affirmative, or directory, and not negative; and the distinc- 405 CONSULAR CASES tion in construing laws so distinguished could never be more properly enforced. Thus, though the statute of Henry for holding the quarter sessions, prescribes a particular day, the court being held on another day, it was deemed valid. So, where a day was fixed by the act for appointing overseers of the poor, the appointment was good, though made on another day. Upon the whole, the proof given and tendered in this case, was, ]st, the warrant of the district judge of Pennsyl- vania, which, on common law principles, would be sufficient to procure the indorsement or warrant of any other judge; — 2d, the official let- ters and statement of Captain Barre, proving the fact, as conclusively to every purpose of truth and justice, as the exhibition of his signa- ture to the ship's roll; and being, in effect, a written confession, a species of proof which is admitted even in the case of treason : — and 3d, a copy of the ship's roll certified by the vice-consul. This ought not, perhaps, to be regarded as complete evidence under the 5th arti- cle of the convention, which seems only to relate to acts made before, or taken in the presence of, the consul. It is, however, entitled to, at least, as much respect as a notarial certificate, which commands full faith in all commercial coimtries. II. If. then, the judge ought not to have refused a warrant for apprehending Captain Barre, this court ought to compel him to grant one, by issuing a mandamus. The general principle of issuing that writ, is foimded on the necessity of affording a competent remedy for every right ; and it constrains all inferior courts to perform their duty, unless they are vested with a discretion. Esp. 3 Burr. 1267, The treaty is the supreme law of the land; and if an absolute discretion is given to the district judge, it is conceded, that this court can not interpose to control and decide it. But much will depend on the nature of the discretion given to the judge; since a legal discretion is sometimes as much implied in the exercise of a ministerial, as in the exerci.se of a judicial function. In the present case the treaty con- templates an arrest, and a delivery of the deserter : it may, therefore, be considered as one thing (53) to issue the warrant, and as another, very different in nature and jurisdiction, to decide upon a hearing of the parties. In Stra. 881, a mandamus was refused, because the granting of a license was discretionary in the justices: but wherever an act of parliament peremptorily directs a thing to be done, though it .should be of a judicial nature, if no discretion is vested in the in- ferior officer or court, a mxindamus will lie. Thus, the acts of the judge of probates etc. are judicial acts; yet, as the act of parliament declares that administration shall be given to the next of kin, a man- damus will issue directing the administration to be granted to the next of kin, and if it appears on the return that A. B. is next of kin, a 406 CONSULAR CASES mandamus will issue to grant it to him. 1 Stra. 42, 93, 211. If the district judge had returned, that he was of opinion, that Captain Barre was not a deserter, it might have been sufficient; but he has re- turned that he would not examine the evidence, because it was not evidence. Suppose the ship's roll had been exhibited, and the judge had refused to issue the warrant, because it appeared that Captain Barre had taken the oath of citizenship, would not a mandamus issue under such circumstances? 4 Burr. 1991. 2 Stra. 992. But issuing the warrant is merely a ministerial act, and where words are so strongly directory as in the article of the treaty, without any ex- press investment of discretion, a mandamus has always been awarded. 1 Wils. 283. 1 Black. Rep. 640. 1 Stra. 553. 113. Doug. 182. Though the commissioners returned, that they had reason to doubt (pursuing the words of the law of Pennsylvania, 2 Vol. Dall. Edit. p. 494) the truth of the bankrupt's conformity, the supreme court at first hesi- tated, whether a mandamus ought not to issue, though it was eventual- ly refused, on the ground of the discretion, which the law gave to the commissioners. But one great ingredient in the exercise of this controling jurisdiction, by mandamus, is, that there exists no other specific remedy for the party, and that upon the principles of jus- tice and good government, he ought to have one. 2 Burr. 1045. 3 Burr. 1266, 1659. 4 Burr. 2188. In the present case, the district judge is the only competent judge to issue the warrant; and a writ of error can not be brought merely upon his refusal to institute the process. By the Court : We are clearly and unanimously of opinion, that a mandamus ought not to issue. It is evident, that the district judge was acting in a judicial capacity, when he determined, that the evi- dence w^as not sufficient to authorize his issuing a warrant for appre- hending Captain Barre : and (whatever might be the difference of sentiment entertained by this court) we have no power to compel a judge to decide according to the dictates of any judgment, but his own. It is (54) imnecessary, however, to declare, or to form, at this time, any conclusive opinion, on the question which has been so much agitated, respecting the evidence required by the 9th article of the consular convention. The rule discharged. Cited— 5 Pet. 207; 14 Pet. 599; 14 Wall. 166; Id. 603; 11 Otto 700; 3 Mc- Arthur 333. UNITED STATES v. KELLY, (1901, U. S.) 108 Fed. Eep. 538. Bellinger, District Court. Prosecution for the obstructing and opposing officers of the 407 CONSULAR CASES United States in the execution of process. On demurrer to informa- tion. John H. Hall for the United States. Henrj' McGinn and C. W. Fulton, for defendants. BELLINGER, District Judge. This is an information for vio- lation of section 5398 of the revised statutes. The information charges the defendants with having, on the . . . day of August, 1900, at the city of Astoria, in this state, knowingly and willfully obstructed and opposed one A. Roberts and one George Maygers, deputy United States marshals for the districts of Oregon, with force and arms, by then and there forcibly taking from the custody of the said deputy marshals one Thomas G. Jefferies, one A. Norbin, one N. Johannson, and one Ole Thomson, who had theretofore, to wit, on the 13th day of August, 1900, at the city of Portland, within the district of Oregon, on a hear- ing and trial then and there had before Edward N. Deady, United States commissioner within said district, been by said commissioner duly adjudged to be deserters from the ship Cedarbank, a foreign vessel, sailing under the flag of Great Britain; and the said commis- sioner having duly committed the persons named to the custody of the United States marshal for the district of Oregon, to be by him surrendered and restored to the said ship Cedarbank, under the direc- tion of James Laidlaw, the duly-accredited consul of the kingdom of Great Britain and Ireland at the city of Portland, within the state of Oregon ; and the said James Laidlaw, as such consul, having, on the . . . day of August, 1900, directed the said United States marshal for the district of Oregon, in writing, to restore the said deserters to the said British ship Cedarbank by delivering them to the master of said vessel, on board thereof, at the city of Astoria; and while the said Jefferies, Norbin, Johannson, and Thomson were still in the lawful custody of the said United States (540) marshals, the said Kelly and Linville, on the . . . day of August, aforesaid, did, with force and arms, take said Jefferies, Norbin, Johannson, and Thomson from the custody of said United States marshal, etc. To this information the defendants demur. The statute under which this information is brought provides that every person who knowingly and willfully obstructs or opposes any officer of the United States in serving or attempting to serve or exe- cute any mesne process or warrant, or any rule or order of any court of the United States, or any other legal or judicial writ or process, shall be punished. A treaty between the United States and Great Britain, entered into in 1892. provides that the British consul shall have power to require from the proper authority the assistance pro- 408 CONSULAR CASES vided by law for the apprehension, recovery, and restoration of sea- men who may desert from any ship belonging to a citizen of Great Britain. Section 5280 of the revised statutes, in force at the time this treaty with Great Britain was entered into, provides, that: "On application of a consul or vice-consul of any foreign government having a treaty for the United States stipulating for the restoration of seamen deserting * * * it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the consul or vice consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government," etc. The treaty gives to the British consul power to require from the proper authorities the assistance provided by law for the apprehension and restoration of deserting seamen. The only assistance provided by law for this purpose is that provided for by section 5280, above quoted. By that section the proper officer has authority to deliver deserting seamen up to the consul, to be sent back to the dominions of the government to which they belong. In this case it is alleged, in effect, that the commissioner committed the deserting seamen to be surrendered and restored by the marshal to the ship Cedarbank, under the direction of the British consul, and that the consul directed the marshal to restore said seamen to the Cedarbank by delivering them to the master of the vessel, on board thereof, at the city of Astoria, and that while in the execution of said order, the defendants, Kelly and Linville, forcibly took the parties named from the mar- shal's custody. The commissioner had no authority to direct the re- storation of the seamen to the ship Cedarbank. The statute only permits their delivery to the consul. I am satisfied that the com- missioner had authority to order the delivery of the deserting seamen to the consul on board the Cedarbank at Astoria, either to the consul himself or to some one authorized to act for him in that behalf. Neither the time when nor the place where the delivery is to be made is specified, and I take it that it might have been made, as I have in- dicated, at Astoria, or at any other place within the limit of the power of the court to order and of the marshal to execute where such delivery was necessary to be effective. But, from what appears (541) in the information, the deputies were in the execution of an order from James Laidlaw. the British consul, which required them to restore, the sea- men to the master of the vessel, — a thing not within the power of the commissioner to order. At the time of the act charged as a crime, the deputies were acting, not in pursuance of such an order as the statute 409 CONSULAR CASES provides for. but under the direction of the British consul. The of- ficers, therefore, were obstructed, not in the performance of a duty enjoined by law, but in the performance of an act directed by the British consul. The information does not state facts constituting a crime, and the demurrer is sustained. UNITED STATES v. LUCINARIO, (1906, U. S.— Spain) 6 Philippine Reports 32.5. WiUard, Supreme Court. Philippine Islands. (Syllabus) A foreign consul is not a public authority as defined in article 419 of the penal code, but is included within the term dignidad contained in the same article. [In this case defendant was imprisoned for striking the Spanish consul. — Ed.] UNITED STATES v. LUNT, (3855, U. S.) 1 Sprague 311; Fed. Cases 15,642. Sprague, District Court. (Extract) It is proper for the master to take the advice of the consul, as of any other judicious person, but his opinion is only ad- vice, and the responsibility rests with the master. UNITED STATES v. MITCHELL, (1886, U. S.) 26 Fed. Rep. 607. Coxe, District Court. [Payment of consul's salary. Right to recover payment made to vice-consul for consul's sal- ary. — Ed.] UNITED STATES v. MOSBY, (1889, IT. S.) 133 U. S. 273. Blatchford, Supreme Court. [Case concerning the consul's right to recover fees claimed to be unoflRcial and paid into the treasury. Determination of what constitutes an official fee, which may not be retained by consul. Fees for care of estate allowed. — Ed.] UNITED STATES v. MOTHERWELL, (1900, U. S.— Russia) 103 Fed. Rep. 198. McPherson, District Court. [Decided that art. 9 of the treaty of 1832 with Russia does not 410 CONSULAR CASES apply and that the prisoner could not be arrested as a deserter upon written request of Russian vice-consul at Philadelphia. — Ed.] UNITED STATES v. ORTEGA, (1826, U. S.) 11 Wheat. 468. Washington, Supreme Court, Am indictment under the crimes act of 1790, c. 36, (IX.), s. 37, for infract- ing the law of nations by offering violence to the person of a foreign minister, is not a case ' ' affecting ambassadors, other public ministers and consuls, ' ' within the 2d section of the 3d article of the constitution of the United States. The circuit courts have jurisdiction of such an offense under the 11th sec- tion of the judiciary act of 1789, c. 20. Quaere, Whether the jurisdiction of the supreme court is not only original, but exclusive of the circuit court, in "cases affecting ambassadors, other public ministers and consuls," within the true construction of the 2d section of the 3d article of the constitution. (468) MR. JUSTICE WASHINGTON delivered the opinion of the court : The defendant, Juan Gualberto de Ortega, was indicted in the circuit court of the United States for the Eastern District of Pennsyl- vania, for infracting the law of nations, by offering violence to the person of Hilario de Rivas y Salmon, the charge d'affaires of His Catholic Majesty the King of Spain in the United States, contrary to the law of nations, and to the act of the congress of the United States in such case provided. The jury having found a verdict of guilty, the defendant moved an arrest of judgment, and assigned for cause "that the circuit court has not jurisdiction of the matter charged in the indictment, inasmuch as it is a case affecting an ambassador or other public minister." The opinions of the judges of that court upon this point being opposed, the cause comes before this court upon a certificate of such disagreement. The questions to which the point certified by the court beloAV gives rise, are, first, whether this is a case affecting an ambassador or other public minister, within the meaning of the second section of the third article of the constitution of the United States. If it be, then the next question would be whether the jurisdiction of the supreme court in such cases, is not only original, but exclusive of the circuit courts, under the true construction of the above section and article. The last question need not be decided in the present case, because the court is clearly of (469) opinion that this is not a case affecting a public minister, within the plain meaning of the constitution. It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indictment 411 CONSULAR CASES charges, in the person of a public minister, by an assault conimitted on him by a private individual. It is a case, then, which affects the United States, and the individual whom they seek to punish ; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it. It is ordered to be certified to the circuit court for the eastern district of Pennsylvania, that that court has jurisdiction of the matter charged in the indictment, the case not being one which affects an ambassador or other public minister. Certificate accordingly.^ S. C, 4 Wash. C. C. 531. Criticised— 1 Abb. U. S. 32. Cited— 13 Wall. 594, 595, 600; 3 Blatchf. 265; 4 Blatchf. 51; Taney, 5, 7 ; 1 Abb. U. S. 32 ; 4 Wash. 538. ^ The constitution of the United States provides (art. 3, sec. 2) that "the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies be- tween two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different (470) states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." And that, "in all cases affect- ing ambassadors, other public ministers, and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make. ' ' The crimes act of 1790, c. .36 (TX), s. 25, enacts, "That if any writ or pro- cess shall at any time be sued forth or prosecuted by any person or persons in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any am- bassador, or other public minister, of any foreign prince or state, authorized and received as such by the president of the United States, or any domestic or domestic »er\ant of any such ambassador or other public minister, may be arrested or im- prisoned, or his or their goods or chattels be distrained, seized, or attached, such writ or process shall be deemed and adjudged to be utterly null and void, to all intents and purposes whatsoever (S. 26). That in case any person or persons shall sue forth or prosecute any such writ or process, such person or persons, and all attorneys or solicitors, prosecuting or soliciting in such case, and all officers executing any such writ or process, being thereof convicted, shall be deemed vio- lators of the law of nations, and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court." The same section also contains a proviso, excepting from the operation of the preceding sections, any citizen or inhabitant of the United States, who shall have contracted debts before entering into the service of such minister, and requiring the name of Buch Ber\'ant to be previously registered in the office of the secretary of state, etc. The 27th section provides, "that if any person shall violate any safe con- duct or passport duly olitaincd, and issued under the authority of the United States, or shall assault, strike, wound, imprison, or in any manner infract the law of nations, by offering violence to the person of an ambassador or other public minister, such person so offending, on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court. ' ' 412 CONSULAR CASES The judiciary act of 1789, c. 20, s. 9, provides, "That the (471) district court shall have, exclusively of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, where no other punishment than whipping not exceeding thirty stripes, a fine not ex- ceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted. " " And shall also have jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls, except for offenses above the description aforesaid." The same act (s. 11) provides, that the circuit courts "shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts, of the crimes and offenses cognizable therein." It also provides (s. 13) that the supreme court ' ' shall have, exclusively, all such jurisdiction of suits or pro- ceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul, or vice-consul, shall be a party." The question whether the jurisdiction of the supreme court in "all cases af- fecting ambassadors, other public ministers and consuls" is exclusive as well as original, under the constitution, so as to preclude congress from vesting in any other tribunal jurisdiction over such cases, has never been decided in terms by this court. But it was held, as early as the year 1793, in the circuit court for the district of Pennsylvania, by Wilson and Peters, J. J. (Iredell, J., dissenting), that the jurisdiction in a criminal prosecution against a foreign consul, who was indicted for a misdemeanor at common law, was constitutionally vested in that court, under the 11th section of the judiciary act of 1789, c. 20. The United States V. Ravara, 2 Dall. Rep., 297. It has, however, been expressly determined by this court, that the clause of the constitution giving the supreme court appellate jurisdiction in all other cases than those in which original jurisdiction is granted, does not exclude the court from exercising appellate jurisdiction in cases "arising under the constitution, laws, and treaties of the union, ' ' (472) and in ' ' cases of admiralty and maritime jurisdiction," although an ambassador, other public min- ister or consul, may be a party. If, for example, a foreign minister is sued in a state court by an individual, and that court should take jurisdiction, and give judgment against the minister, the supreme court of the United States may re- vise the judgment under the appellate powers given to it by the 25th section of the judiciary act of 1789, c. 20. So, where the inferior courts of the union take cognizance, as courts of admiralty and maritime jurisdiction, of suits brought by foreign consuls in maritime causes in which their fellow-citizens are interested, the appellate power of this court has been constantly exercised. (See the judg- ment of this court in the case of Cohens v. Virginia, ante, Vol. VI., pp. 396-401, in which the previous case of Marbury v. Madison (1 Cranch's Rep., 174) is re- vised and explained.) But where the jurisdiction depends merely upon the char- acter of the consul, and not upon the nature of the case, the question has never been determined by this court, whether congress could invest any other tribunal than the supreme court, with the original jurisdiction. It has been decided by the supreme court of Pennsylvania, that the state courts have no jurisdiction of any suit brought against a foreign consul or vice- consul. Mannhardt v. Soderstrom, 1 Binn. Rep., 138. There seems to be no rea- son to doubt the correctness of this adjudication, the constitution giving to the national judiciary cognizance of ' ' all cases affecting consuls, ' ' and congress hav- ing, by the 9th section of the judiciary act of 1789, c. 20, vested the district courts of the union with jurisdiction of various matters both of a criminal and civil nature, in some of which their jurisdiction is exclusive of the state courts, and, in others, concurrent with them ; and towards the latter part of the section, the district courts being vested with jurisdiction "exclusively of the courts of the several states, of all suits against consuls or vice-consuls, except for of- fenses above the description aforesaid." The word "suits" includes those both of a civil and criminal nature ; and the exception of ' ' offenses above the descrip- tion aforesaid" refers to a description in the first part of the section, viz., of- fenees where no other punishment than whipping upt exceeding thirty stripes, e^ 413 CONSULAR CASES fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted. (473) The circuit courts of the union have jurisdiction concurrently with the district courts, of offeuses within that description, in cases affecting consuls; and the circuit courts have exclusive jurisdiction of offenses above that description, in cases affecting consuls. It has also been determined by the supreme court of Pennsylvania, that this last jurisdiction of the circuit courts is not only exclusive of the district courts, but of the state courts. Upon this ground, an indictment for a criminal ofl'ense under the laws of Pennsylvania, against the Russian consul- general, was quashed for want of jurisdiction by that court, in 1816. Common- wealth V. Kosloff, 5 Serg. & Eawle, 545. In delivering the judgment of the court in that case, Mr. Chief Justice Tilghman also examined the question, as to the nature and extent of the privileges of consuls under the law of nations, and de- cided that the privilege of immunity from criminal prosecutions was not con- ferred on them by that law. It had been previously determined by the English court of K. B., in 1814, that they were not privileged as public ministers from arrest in civil cases. Vivian v. Becker, 3 Ma»il. & Selw., 284. And the author- ities, cited from the text-writers on the law of nations in these two cases, show that consuls are in no respect privileged as public ministers. It results from the above provisions of the constitution, the acts of congress, and the judicial expositions which have been given to them, 1. That no civil suit or criminal prosecution can be commenced against a foreign ambassador, other public minister, or consul, in any state court. 2. That such ambassador, public minister, or consul may, at his election, com- mence a suit in a state court, (in other respects of competent jurisdiction) against an individual. 3. That an ambassador, or other public minister, cannot be proceeded against in any civil case, by compulsorj' process, in any court whatever. 4. That a consul may be sued, or proceeded against, civilly or criminally, in the courts of the union, in the same manner as a private individual. 5. That in civil suits against a consul, and in criminal prosecutions against him, within the limits of the criminal jurisdiction of the district courts, the dis- trict courts have jurisdiction of such suits or prosecutions. (474) 6. That in criminal prosecutions against consuls, for offenses above the description of those cognizable in the district courts, the circuit courts have exclusive jurisdiction, and concurrent jurisdiction with the district courts in the other cases cognizable therein. 7. That the supreme court has original and exclusive jurisdiction of such suits or prosecutions against ambassadors, and other public ministers, as any court of justice can exercise consistently with the law of nations. 8. That the supreme court has original, but not exclusive, jurisdiction of suits brought by ambassadors, or other public ministers, or in which a consul is a party. 9. That the supreme court has appellate jurisdiction of all cases, in which a minister or consul is a party, arising in the state courts, and involving the con- Btniction of the national constitution, or the validity and construction of the laws and treaties of the union, under the restrictions mentioned in the 25th sec- tion of the judiciary act of 1789, c. 20. 10. That the supreme court has appellate jurisdiction of all civil suits brought in the courts of the union, having original jurisdiction of the suit, where a min- ister or consul is a party, and the matter in dispute exceeds the sum of two thousand dollars. In criminal cases arising in the courts of the union, no writ of error, or other appellate process, to remove the cause to the supreme court, has been provided by congress; and the only mode in which such cases can be revised in this court is upon a certificate where the opinions of the judges of the circuit court are op- posed. United States v. La Vengeance, 3 Dall. Rep. 297; United States v. More, 3 Cranch's Rep.. 1.59; Ex parte Kearney, ante, Vol. VII., p. 42. Consequently, a criminal case affecting a consul, can only be revised in this court upon a divi- sion of opinions of the judpes of the rourt below, certified under the 6th section of the judiciary act of the 29th of April, 1802, c. 291. (XXXI) The question as to what is the law by which cases affecting ambassadors, other public ministers, and fonsuls, are to be determined in the courts of the union, in the absence of any legislative provisions by congress a7)plicable to the particular case, would lead into too wide a field of discussion to be embraced by the present iU CONSULAR CASES UNITED STATES v. OWEN, (1891, U. S.) 47 Fed. Rep. 797. Wheeler, District Court. [Consul not liable for money paid, under the direction of the state department, to a clerk appointed by the president. Consul entitled to be credited at any time before final settlement, with moneys belonging to himself but paid over under the impres- sion that they were fees. — Ed.] UNITED STATES v. KAVARA, (1793, U. S.— Italy) 2 Dall. 297. Wilson, Circuit Court. The defendant, a consul from Genoa, was indicted for a misde- meanor, in sending anonymous and threatening letters to Mr. Ham- mond, the British minister, Mr. Holland, a citizen of Philadelphia, and several other persons, with a view to extort money. Before the defendant pleaded, his counsel (Heatly, Lewis, and Dallas) moved to quash the indictment, contending that to the su- preme court of the United States, belonged the exclusive cognizance of note. It is obvious, that the law of nation v.'onld, in some (457) instances, form the rule of decision ; in others, such as civil causes arising out of contract, and questions of property, the laws of the several states would form the rule; but in what manner the jurisdiction of the national courts is to be exercised in prose- cutions against consuls for offenses not declared penal by any act of congress, 13 a subject on which a great contrariety of opinions has prevailed. In its more gen- eral application, this has been stated as a question, whether the United States, as a national government, have any common law, or, in other words, whether the courts of the United States have any common law jurisdiction. In a late essay upon the nature and extent of the jurisdiction of the courts of the United States, Mr. Duponceau has proposed a very elegant and ingenious solution of this prob- lem, by assuming a distinction between the common law as a source of power, and as a means for its exercise. From the common law, considered in the first point of view, he contends that in this country no jurisdiction can arise; while in the second, every lawful jurisdiction may be exercised through its instrumentality, and by means of its proper application. He denies its capacity to confer any powers on the courts of the union which they do not possess by the written code of the national government; but he insists that, as a system of jurisprudence, it is the national law of the union, so far as it has not been altered by the con- stitution, or by acts of congress. Thus, in the case of consuls, it is the constitution which gives the jurisdiction in personam, but it is the local law of the state (whether common or statute), which must furnish the rule of decision in the ab- sence of any regulation by congress applicable to cases affecting them. And, in this view, the learned author insists that the 34th section of the judiciary act of 1789, c. 20, making the laws of the several states, except where the constitution, treaties or statutes of the United States, otherwise provide, rules of decision in trials at common law in the courts of the union, in cases where they apply, in- cludes both criminal and civil cases. But the question, for all practical purposes, is settled in this court according to the authority of the case in The United States V. Hudson and Goodwin (7 Cranch 's Rep., 32), in which it was determined, that the courts of the union cannot exercise a common law jurisdiction; al- though it is still considered as open for discussion, whenever a case shall arise rendering it necessary to reconsider that decision. See The United States v. Coolidge, ante, Vol. I., p. 415, 415 CONSULAR CASES the case, on account of the defendant's official character. By the 2d section of the third article of the constitution, it is expressly declared, that, "in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction." By declaring in the sequel of the same section ' ' that in all the other cases before-mentioned the supreme court shall have appellate jurisdiction," the word original is ren- dered tantamount to exclusive, in the specified cases. But surely an original jurisdiction established by the constitution in the supreme court, can not be exclusivelj' vested by law in any inferior courts. The 13th section of the judicial act provides, that "the supreme court shall have exclusively all such jurisdiction of suits or (298) pro- ceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or other public min- isters, or in which a consul or vice-consul shall be a party." This provision obviously respects civil suits; but the 11th section declares, that "the circuit court shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, ex- cept where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein." This is a crim- inal prosecution, not otherwise provided for; and if the jurisdiction can be exclusively vested in the circuit court, it destroys the original jurisdiction given by the constitution to the supreme court. In jus- tice to the legislature, therefore, such a construction must be rejected ; and the cognizance of the case be left, upon a constitutional footing, exclusively to the supreme court. The argument is the more cogent from a consideration of the respect which is due to consuls, by the law of nations. Vatt. b. 2. c. 2. s. 34. Rawle, the district attorney, stated in reply, that there was a material distinction between public ministers, and consuls; the form- er being entitled to high diplomatic privileges, which the latter, by the law of nations, had no right to claim; and he contended, that the supreme court has original, but not exclusive, jurisdiction of of- fences committed by consuls: That the district court had jurisdiction (exclusively of the state courts) of all offences committed by consuls, except where the punishment to be inflicted exceeded thirty stripes, a fine of one hundred dollars, or the term of five months imprison- ment : And that the circuit court had, in this respect, a concurrent jurisdiction with the supreme court as well as the district court. If indeed this is a crime "cognizable under the authority of the United 416 CONSULAR CASES States," it is within the express delegation of jurisdiction to the cir- cuit court. WILSON, Justice. I am of opinion, that although the constitu- tion vests in the supreme court an original jurisdiction, in cases like the present, it does not preclude the legislature from exercising the power of vesting a concurrent jurisdiction, in such inferior courts, as might by law be established : And as the legislature has expressly declared, that the circuit court shall have "exclusive cognizance ofi all crimes and offences, cognizable under the authority of the United States, I think the indictment ought to be sustained, IREDELL, Justice. I do not concur in this opinion, because it appears to me, that for obvious reasons of public policy, the (299) constitution intended to vest an exclusive jurisdiction in the supreme court, upon all questions relating to the public agents of foreign na- tions. Besides, the context of the judiciary article of the constitution seems fairly to justify the interpretation, that the word original, means exclusive^ jurisdiction. PETERS, Justice. As I agree in the opinion expressed by Judge Wilson, for the reasons which he has assigned, it is unnecessary to enter into any detail. The motion for quashing the indictment was accordingly reject- ed, and the defendant pleaded not guilty; but his trial was post- poned, by consent, 'till the next term-^ ^ The defendant was tried in AprU session, 1794, before Jay, chief justice, and Peters, justice; and was defended, by the same advocates, on the following points: 1st. That the matter charged in the indictment was not a crime by the common law, nor is it made such by any positive law of the United States. In England it was once treason ; it is now felony ; but in both instances it was the effect of positive law. It can only, therefore, be considered as a bare menace of bodily hurt; and, without a consequent inconvenience, it is no injury public or private. 4 Bl. C. 5. 8 Hen. 6. c. 6. 9. Geo. 1. c. 22. 4 Bl. C. 144. 3. Bl. 120. 2d. That considering the official character of the defendant, such a proceeding ought not to be sustained, nor such a punishment inflicted. The law of nations is a part of the law of the United States; and the law of nations seem to require, that a consul should be independent of the ordinary criminal justice of the place where he resides. Vatt. b. 2. c. 2. s. 34. 3d. But, that, exclusive of the legal ex- ceptions, the prosecution had not been maintained in point of evidence; for, it was all circumstantial and presumptive, and that too, in so slight a degree, as ought not to weigh with a jury on so important an issue. 2 Hal. H. P. C. 289. 4 Smol. Hist. Eng. p. 382. in note. Rawle, in reply, insisted that the offence was indictable at common law; that the consular character of the defendant gave jurisdiction to the circuit court, and did not entitle him to an exemption from prosecution agreeably to the law of nations; and that the proof was as strong as the nature of the case allowed, or the rules of evidence required. In support of his arguments he cited the fol- lowing authorities. 4 Bl. Com. 142. 144. 1 Lev. 146. 1 Keb. 809. 4 Bl. C. 180. Stra. 193. 4 Bl. C. 242. Crown Circ. 376. Fost. 128. Leach 204. 1 Dall. Eep. 338. 1 Sid. 168. Comb. 304. Leach 39. Ld. Ray. 1461. 1 Dall. Rep. 45. The court were of opinion in the charge, that the offence was indictable, and 417 CONSULAR CASES UNITED STATES v. TRUMBULL, et al., (1891, U. S.— Chile) 48 Fed. Rep. 94. Boss, District Court. [Although consul's government overthroA\Ti and new government recognized by receiving state, he must be granted same immunities as long as his exequatur is not revoked. Consul, benefitting from article of French treaty, can not be compelled to appear as witness for prosecution. — Ed.] VALARINO V. THOMPSON, (1853, U. S.— Ecuador) 7 N. y. 576. Buggies, Court of Appeals, New York. Foreign CIonsul. — Exemption from Suit in State Courts A foreign consul residing in the United States is not liable to suit in the state courts, though impleaded with a citizen upon a joint contract; nor can his exemption be -uaived by appearance, not being a personal privilege, but one -which exists by virtue of the national judiciary act of 1789. Such exemption may be alleged as an error of fact after judgment, and while the case is in an appellate court. Action of assumpsit in the superior court of the city of New York, against the defendant and one Mason, commission merchants, doing business in the city of New York, under the firm name of Mason and Thompson. Process was served on the defendant alone, who inter- po.sed a defense, but judgment was taken for the plaintiff. The defendant thereupon removed the cause to the supreme court on writ of error assigning an error in fact that prior to and at the time the action was commenced, and then, he was consul of the republic of Ecuador for the port of New York. The plaintiff alleged in reply that the defendant had voluntarily submitted himself to the jurisdiction of the superior court, and that the cause of action was one in which he was jointly interested with his copartner Mason. The supreme court reversed the judgment of the superior court, upon which the plaintiff brought this appeal. (577) J. Larocque, for appellant. C. 'Conor, for respondent. RUGGLES, Ch. J. The power of the supreme court to reverse that the defendant was not privileged from prosecution, in virtue of his consular appointment. The jury, after a short consultation, pronounced the defendant, guilty; but he was aftorwards pardoned, on condition (as T have heard) that he surrendered his commission and exequatur. As to the question of jurisdiction, see The United States v. Warral, post. 418 CONSULAR CASES the judgment rendered in the superior court of the city of New York for error in fact was not disputed on the argument of this case. Nor was it denied that the United States have exclusive jurisdiction in suits against consuls of foreign states residing here. But it was in- sisted that the defendant's exemption as a consul from liability to be sued in the state court was his personal privilege ; and that he waived it by pleading to the merits and going to trial without raising the ob- jection in the court below. It was also further contended that the United States courts have no jurisdiction in a case like the present, (578) where the consul was sued together with another person on a joint contract, and, therefore, that the suit was rightly brought in the state court. The points thus raised present questions for the consideration of this court, which, if decided against the defendant, are conclusive in favor of affirming the judgment of the supreme court, and render the examination of the other questions raised on the argument un- necessary. The exemption of an ambassador or other diplomatic minister from liability to be sued or prosecuted in the courts of the country to which he is accredited is the privilege of his sovereign or govern- ment. It is accorded to the office and not to the individual. (Bar- buit's Case, Talbot's Cases, 381.) It is founded on the law of na- tions, and does not depend on the law of the country in which the fimctions of the minister are to be exercised. The extent of the im- munities to which a consul is entitled under the law of nations does not appear to be very clearly defined by writers on public law. Accord- ing to Vattel, a consul is not entitled to the privileges of a public minister; yet bearing his sovereign's commission, and being in this quality received by the government of the country in which he re- sides, he is in a certain degree entitled to the protection of the law of nations. The sovereign, by the very act of receiving him, tacitly en- gages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission would be nuga- tory and delusive. (Vattel, book 2, chap. 2, sect. 34.) The same writer further says that the functions of a consul seem to require that he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned unless he him- self violate the law of nations by some enormous crime ; and that in such case the respect due to his master requires that he should be sent home to be punished ; and that such is the mode pursued by states that are inclined to preserve a good understanding with each other. Other writers, however, regard a consul as amenable like a private individual to the civil and criminal law of the country (579) to 419 CONSULAR CASES which he is accredited. (2 Brown's Civ. and Adm. Law, 506 ; "Wicque- fort on "The Ambassador," book 1, sect. 5.) In 1793 the Genoese consul was indicted in the circuit court of the United States for the district of Pennsylvania for a misdemeanor, and tried and convicted. In this case the privilege was disallowed or disregarded, but the con- sul was afterwards pardoned upon condition that he surrendered his commission and exequator. (United States v. Ravara, 2 Dallas, 297.) The privileges of a consul, however, do not always depend on the law of nations. They are frequently regulated by treaty. And by the treaty between the United States and the republic of Ecuador (Art. 29), the consuls of that republic are entitled to all the rights, prerogatives and immimities of the consuls of the most favored na- tions. The defendant, therefore, in his consular office, must be regarded as entitled to some rights, prerogatives and immunities under this treaty, if not under the law of nations, and they are of the same na- ture and character as those to which a public minister is entitled. An ambassador cannot renounce a privilege accorded to his of- fice by the law of nations, because it is the privilege of his government, and not personally his own. (Barbuit's Case, Talbot's Cases, 281.) The immunities of these public agents are secured to them by public law, in order that they may not be embarrassed in the exercise of their functions by the action of the government of the country where they reside, or of any individual within it. The privileges of the consular ofifice, whether derived from the law of nations or from treaty, stand on the same footing, and for the same reason they cannot be renounced by the officer. It belongs to the United States courts and not to the courts of this state, to determine what privileges and immunities a foreign min- ister or consul is entitled to. The states, by adopting the federal constitution, transferred to the general government the right to exercise a portion of the judicial power which had previously belonged to the several states. The in- tention was to make the judicial authority of the (580) federal govern- ment co-extensive with its political powers. Its judicial powers, there- fore, embrace "all cases in law and equity arising under the consti- tution, the laws of the United States, and all treaties made, or which shall be made, under their authority." (Const., art. 3, sect. 2.) The federal government has charge exclusively of the foreign relations of the country, of the regulation of commerce with foreign nations, and of all political intercourse between this country and others. The fed- eral power of the United States is, therefore, made to extend "to all cases affecting ambassadors, other public ministers and consuls." 420 CONSULAR CASES (Art. 3, sect. 2.) The judiciary act of 1789 (2 Bioren & Duane's Laws, 56), establishes district courts and defines their authority (sec- tions 2, 3, 9). The latter section gives them jurisdiction ''exclu- sively of the courts of the several states of all suits against consuls and vice consuls," with an exception not affecting the present case. The defendant, therefore, is exempted, as a consul, from liability to be sued in the state courts. But this exemption is neither his per- sonal privilege nor the privilege of the state by which he was com- missioned . It is not founded on the law of nations, or on any treaty between his government and that of this country. If it can be regarded as a privilege belonging to him or to his office, it is only because it secures to him the protection of the national government, which is responsible to his own for any violation of his rights derived under the law of nations or from treaty. But it does not exempt him from liability to respond to his creditors, or to answer for his mis- conduct. Nobody denies the liability of a consul to be sued in a civil action. The act of congress concedes it, and provides for it. It prescribes the tribunal in which a consul in this country is to be called on to answer, and excludes the state courts from jurisdiction. The object of this exclusion was to keep within the control of the federal government, and subject to the authority of its courts, all cases and controversies which might in any degree affect our foreign relations. The United States government has an interest in main- taining this exclusive jurisdiction, for the purpose of preventing it from being involved in controversies with foreign powers without its consent, and for acts not its own. But this is matter of internal regulation between the general government and the several states, over which foreign governments have no control. The exemption of a consul from liability to be sued in a state court, if it can be called a privilege , is not the privilege of the consul, or of his sovereign, but of the United States government; and, therefore, it cannot be re- nounced by the consul. In Mannhardt v. Soderstrom (1 Binney, 138), the defendant, who was the Swedish consul, pleaded to the merits of the case, and afterwards moved to quash the proceedings on the groimd that the state court had no jurisdiction. The motion was granted, Tilghman, Ch. J., remarking that **the court will put a stop to the proceedings in any stage on its being shown that they have no jurisdiction." But the case of Davis v. Packard (7 Pet. 276; 8 id. 314), is a direct and conclusive adjudication upon the point we are now con- sidering. That case came before the supreme court of the United States on a writ of error to the court of last resort in this state. Davis, the defendant in that suit, was sued in the supreme court 421 CONSULAR CASES of this state, on a recognizance of bail entered into by him in a suit of the plaintiff's against T. Hill. He pleaded several pleas to the merits of the case on which issues were joined, and on which a verdict was found and judgment rendered against him. He removed the re- cord by a writ of error to the court for the correction of errors, and then assigned for error in fact that he was consul general of the king of Saxony. This objection had not been raised by plea or otherwise in the court in which he was sued. The defendants in error pleaded in nuUo est erratum. The judgment of the supreme court was af- firmed on the ground, among others, that after having appeared and pleaded to the merits, he could not assign as error in fact that he was such consul, and thereupon allege that the supreme court had no jurisdiction. The case went to the supreme court of the United States on a writ of error. The plaintiffs there raised the objection that Davis, the consul, should have pleaded to the jurisdiction of the state court (582) in the original suit, but the judgment was neverthe- less reversed. The only remaining point to be considered is whether the state courts have jurisdiction in a suit against a consul, where he is sued together with another person on a joint contract. The plaintiff contends that they have , on the ground that the United States courts have not jurisdiction in such a ease. But this we think is a mistake. The constitution extends the jurisdiction of the United States courts to all cases "affecting consuls," and the judiciary act makes it ex- clusive of the state courts "in all suits against consuls." This suit being against a consul is within the terms both of the constitution and of the act, although he sued jointly with another. Whether the 9th section of the act be construed strictly according to its letter, or freely in regard to its object and intention, the result must be the same. Instead of excluding from the jurisdiction of the di.strict court a case in which the consul and another are necessarily co-defendants, it brings the co-dofondant within that jurisdiction by imavoidable im- plication. The intent of the constitution and of the statute cannot be effectually carrifd out upon any other construction. A consul can- not renounce the exemption from being sued in a state court, because it is not his personal privilege, but the right and privilege of the United States that he should be sued in the federal courts; and for the like reason he cannot avoid the exclusive jurisdiction of those courts by joining in a contract with another person, and thus sub- jecting himself to a joint suit. It has in some instances been pro- vided by treaty, that when a consul engages in commerce, he shall be Rubjent to the same laws to which private individuals are subject in the same place; as in thf^ treaty between the United States and the 422 CONSULAR CASES Two Sicilies. But tliere are exceptions to the general law of nations. The case of Strawbridge v. Curtiss (3 Craneh, 267,) decided under the 11th section of the judiciary act of 1789, is inapplicable to the present case, by analogy or otherwise. The provision in regard to suits against consuls is evidently founded on reasons of public policy which do not exist in cases between citizens of different (583) states, and the jurisdiction of the United States courts is in the one case exclusive and in the other concurrent with that of the state courts. This case has moreover been virtually overruled in reference to suits between citizens of different states. (How. 255.) Although we cannot look with favor on the conduct of the de- fendant in taking his chance of success in the supreme court without raising objection to its jurisdiction, and afterwards reversing the judgment on that ground, we think the judgment of the supreme court stands on grounds which cannot be shaken and must be af- firmed. Morse, J., did not hear the argument. Judgment affirmed. VAN HOVEN, EX PARTE HENRY, (1876, U. S.— Belgium) 4 Dillon 415. Dillon, Circuit Court. [Complaint under oath of consul general of Belgium, although based entirely upon the strength of depositions and telegrams of said foreign state, is sufficient to warrant holding of prisoner. — Ed.] VERGIL, IN RE, (1857, Arbitration between Peru and the United States) 4 Moore Int. Arb. 4,390. [The mixed commission awarded damages to the heirs of the de- ceased Peruvian citizen Vergil, because the Peruvian consul was not allowed to act as executor or administrator in accordance with the treaty of July 26, 1851, art. 39.— Ed.] VILLENEUVE v. BARRION, (Given in foot note to Caignet v. Pettit) (1795, U. S.— France) 2 Ball. 235 note; 1 L. Ed. 362. Per Curiam, Circuit Court. VIVEASH V BECKER, (1814, Great Britain) 3 Mau. & Sel. 284; 2 Phillim. (2d Ed.) 309. Lord EUcnhorough, Court of King's Bench. A resident merchant of London, who is appointed and acts as consul to a foreign prince, is not exempted from arrest ux^on mesne process. 423 CONSULAR CASES This case was argiied on a former day, upon a rule nisi for de- livering up the bail bond to be cancelled, by Richardson and Gifford, against the rule, and Scarlett and Campbell in support of it. The question made was, whether the defendant, who had been arrested for a debt of £548 at the suit of the plaintiffs, and compelled to give his bond, was entitled, as consul to the Duke of Sleswick Holstein Oldenburg, to privilege from arrest. On the one side it was con- tended, upon the authority (285) of Wicquefort (a), which it was said is not contradicted by Vattel, that consuls are liable to the justice of the place where they reside, as well in civil as criminal matters. On the other side, the authority of "Wicquefort was said not to be support- ed by the only two instances which he quotes of the Dutch and Venetian consuls, whose arrest appears to have been made the subject of complaint and remonstrance by their respective courts, as being a violance done to the law of nations (&). And "Wicquefort, in an- other place (c), discoursing of commissioners, who he says are some- times public ministers, adds, '^C'est ce que se droit aussi entendre des co7isids." And the authority of Wicquefort may be opposed by that of Vattel, who lays it do\^Ti (d), "that a consul is entitled to the pro- tection of the law of nations;" and again, ''that his functions require that he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned," etc- A variety of other extracts from the same authors, and several cases were also referred to on each side in the course of the argument, but as the whole is so fully noticed and commented on in the judgment of the court, it is conceived that this short outline of the argument will be sufficient. The court took time to consider. LORD ELLENBOROUGH, C. J., on this day gave judgment nearly as follows : This was a rule to show cause why the bail bond should not be delivered up to be cancelled, and in the meantime proceedings staid. This application to the (286) court was founded on the circumstance of the defendant being consul to the Duke of Sleswick Holstein Olden- burg. He grounds his applications upon an affidavit in which he states his appointment as con.sul. He states that on the 20th of January last the Duke of Oldenburg apopinted him his consul by an instru- ment under the seal of the duchy in this form: "His Serene Highness the Duke of Sleswick Holstein Oldenburg, reigning Prince of Lubec, etc., having judged proper for the benefit and interest of his subjects to establish a consul and agent for the commercial relations in Eng- (o) Book 1. c. 5. (b) Ibid, (c) Ibid, id) Book 2. c. 2. 8. 34. 424 CONSULAR CASES land, and considering the good testimonies which have been rendered to him of Mr. Charles Christian Becker, merchant, resident in Lon- don, has named him the said C. C, Becker as such, and confided to him the said office until revocation, on condition that the said con- sul shall observe the instructions that shall be given him by the government of Oldenburg, requesting each and every one, accord- ing to his rank, title, and dignity, to recognize the said C. C. Becker as consul and agent for the commercial relations of his Serene Higlmess the Duke of Oldenburg, etc. and to grant him the free exercise of his functions, and to let him enjoy the liberties, immunities and prerogatives attached to such a charge. ' ' On this in- strument one thing is to be observed, that it is not addressed to the sovereign of the state in which he is to exercise his functions, but only to the public at large ; it is a kind of sciant omnes, requesting of every one that he may be recognized as consul and agent for com- mercial relations, and allowed the free exercise of his functions. What those functions are, is in some degree made to appear by what follows. For the affidavit goes on to state, "that he requested the prince regent to grant his permission and approbation for him to take upon himself (287) the said office, and that the Prince Regent was pleased to approve him, signifying such approbation in an instrument, addressed to all his majesty's subjects, and reciting the appointment by the Duke of Oldenburg of C. C. Becker to be his consul in Eng- land to assist his subjects and people in their commerce and traffic there;" and it concludes, "We having, thereupon, approved of the said C. C. Becker, as consul aforesaid, our will and pleasure is, and we do hereby require you to receive, countenance, and, as there may be occasion, favorably to assist him the said C. C. Becker in the ex- ercise of his place, giving and allowing unto him all privileges, im- munities, and advantages thereunto belonging." This leaves him to the immunities which belong to him as consul, for so the words "there- unto belonging" must be understood. Now what are the functions which he is to exercise? That appears from the instructions which accompany the appointment, and which are stated, 1st, "that he shall endeavor to be useful in all possible ways to the subjects of the Duke of Oldenburg, etc., particularly to sea-faring men, and to render them the necessary succours; particularly (now it specifies) if in time of war any ships with Oldenburg passports should be brought up as prize in any of the ports of England, and should there be detained under any pretext whatsoever, or if the individual subjects of his Serene Highness, who may be on board either in the quality of sailors, or in any other quality whatsoever, should be detained as prisoners of war, the consul shall be bound to render them all the necessary 425 CONSULAR CASES succours and immediately to make the necessary intercessions or re- clamations at the proper tribunals to procure them their liberty. Secondly, he is charged with the same duties in all the other ports of England so long (288) as no consul is established there;" it con- templates, therefore, the possibility of there being a consul in every port. "Thirdly, he is authorized to appoint vice-consuls in all the other ports of England." And this very much relieves the case from the difficulty -which was suggested upon the argument; because it appears he might appoint a vice-consul, perhaps even in the port of London. ^\nd if that be so, there cannot be any great mischief likely to ensue from his personal restraint ; for though he himself may be prevented from exercising his functions, yet if he may delegate those functions, they will continue to be exercised in the same man- ner as if he was at full liberty. His functions then are purely of a commercial nature, and such as properly belong to a consul, those of advice and intercession ; and there is no one function of state pur- pose to be performed by him as representing the sovereign of his state. This is the instrument from which his functions are to be collected (a). He is invested with them eo nomine as consul, which makes a di.stinction between the present and the case before Lord Talbot (b) ; for there he was named only "agent of commerce," which left a difficulty, and made part of the labor of the argument in that case, to ascertain what his fimctions were; he was not named consul. But it must be recollected that Lord Talbot said, although he was called only an agent of commerce, he did not think that the name altered the case, and that at most he was only a consul. Such are the words of Lord Talbot. Now here (289) he is expressly designated, by name, consul, and nothing more. The affidavit proceeds to state "that the Prince Regent's approbation of his appointment to be consul was notified in the London Gazette on the 12th of March 1814." This carries the case no farther: the instrument which he brings over notifies to every class of persons by the sciant omnes, that he is to have the character of consul, and the same is notified in the Gazette. The affidavit then goes on, "that he has ever since exercised the office, that his appf)intnient and powers are still in force, and that the Duke of Oldenburg has during the time had no other minister or diplomatic agent in this country, and that he has during the time acted as a diplomatic agent, and as consul for the duke." It would (a) The inHtniftions fontained two other articles, 4th]y, "Charging the Olden- burg faptains to present themsches before the consul who is to sign their papers, &c. 5th, Every subject of his serene highness who presents himself before the consul, and demands a passport, shall have a right to receive it immediately," &c. (b) Barbuit's case, Cas. temp. Talbot, 281. Cited 3 Burr. 1481, 426 CONSULAR CASES have been as well if he had stated in what particular function as a diplomatic agent distinct from his function as consul, he ever acted for the duke. The affidavit does indeed go on to state, "that during the time he has by the authority and as representative of the duke, applied for and obtained a large supply of arms and ammunition from the British government for the duke, and that he has been and is in the habit of receiving instructions from the duke to attend to matters totally distinct from commerce for the duke with the British govern- ment. " But if he was in the habit of receiving instructions for such purposes as these, it would have been material to have shown that he communicated such instructions; but he has not so done, neither does he affect to allege that the government of this country has received him in the character of a person entrusted to make and making such communications. He says, "he has applied for and obtained from the government (290) a large supply of arms and ammunition;" be it so; but we cannot but remember, if we carry our recollection back a little, that at the time to which the affidavit relates, it did not require the intervention of a public functionary to make application for and ob- tain a large supply of arms and ammunition from this country; I allude to the supply of arms which was afforded by this country for the liberation of Holland. This supply was probably granted upon the application of this person, in the same manner as I dare say it was upon the application of others M'ho had no public functions, for the liberation of Europe from the thraldom under which it lay. In answer to this two affidavits have been filed, the first of which states that the defendant resides in London, and for several years past, and before his appointment of consul carried on and still carries on the business of a merchant in London, and in 1811 became bank- rupt, and that the defendant owes debts to the amount of £120,000 ; that search has been made at the sheriff's office, and that his name is not entered in the lists there as a privileged person ; that a consul is not considered as privileged from arrest, and that the sheriff has been in the habit of arresting consuls without any resistance being made. There is another affidavit also stating that application has been made at the secretary of state's office, in order to discover if the defendant's name was registered there as a public minister; and that the depo- nent was informed that a consul was not considered in that depart- ment as a public minister. Thus the question is reduced to this, whether this defendant is entitled to the privilege of immunity from arrest, as belonging to him in his mere character of consul. Every person (291) who is conversant with the history of this coimtry is not ignorant of the occasion which let to the passing of the statute 427 CONSULAR CASES 7 Ann. c. 12. (a) An embassador of the Czar Peter had been arrested, and had put in bail ; and this matter was taken up with considerable inflammation and anger by several of the European courts, and par- ticularly by that potentate. In order to soothe the feelings of these powers the act of parliament was passed, in which it was thought fit to declare the immimities and privileges of embassadors and public ministers from process; and it was enacted, (s. 4.) "that in case any persons should presume to sue forth or prosecute any such writ, or process, such persons, etc. being thereof convicted should be deemed violaters of the laws of nations, and disturbers of the public repose, and should suffer such penalties and corporal punishment as the Lord Chancellor, Lord Keeper, or the Chief Justice of the Queen's Bench or Common Pleas, or any two of them, should judge fit to be inflicted." Thus was conferred a great and extraordinary power, which I am happy to say in no other instance belongs to those persons; but the act of parliament was passed by way of apology, and in order to conciliate the powers offended. It declares also that "all writs and processes that shall in future be sued forth, whereby the person of any embassador or other public minister of any foreign prince or state may be arrested or imprisoned, etc., shall be deemed to be utterly null and void." Here then the question is if this defendant be an embassador or other public minister of a foreign prince or state. He certainly is a person invested with some authority (292) by a foreign prince; but is he a public minister? There is, I believe, not a single ^\Titer on the law of nations, nor even of those who have written looser tracts on the same subject, who has pronounced that a consul is eo nomine a public minister; and unless he be such he is not within the comprehension of the act of parliament. It has been very truly said that the act is declaratory of the common law, and of the law of nations; and hence it has been argued that he may be entitled to this privilege by the law of nations, though he be not expressly desig- nated in the act. That may be so; although it is not very probable that when the act of parliament was passed for the purpose of labor- iou.sly and comprehensively exempting, as far as possible, all persons who stood in any relation to foreign states which would entitle them by the law of nations to be exempted, it should have omitted to desig- nate any description of persons whom it meant to include. Therefore, upon the fair understanding of the statute, the question is, whether he be a public minister. If he be, he is protected by the act, his arrest being in prejudice of the rights and privileges of public min- isters. But supposing the defendant to be one of those public func- (a) See 1 Black. Com. 255. 428 CONSULAR CASES tionaries who may be entitled to the privileges of the law of nations; how does the case stand upon the usage as it exists under that law? In several books referred to in the course of the argument, and prin- cipally in Vattel, b, 2. c. 2. s. 34. "Of consuls," I find it laid down thus: "Among the modem institutions;" (and therefore this in- stitution of consul is not like that of the legatus of old, of whom and of whose rights the Roman history is full, but according to Vattel it is of modern date, and even in more modern times, in Grotius, who (293) is very learned and laborious in his chapter on the subject of legati, the name of consul never occurs; and in Molloy there is not a word about consul; but to proceed with Vattel) "Among the modem institutions for the utility of commerce one of the most useful is that of consuls, or persons residing in the large trading cities, and espec- ially in foreign sea-ports, with a commission empowering them to attend to the rights and privileges of their nation, and to terminate misunderstandings and contests among its merchants. "When a na- tion trades largely with a country, it is requisite to have there a person charged with such a commission, and as the state which al- lows of this commerce must naturally favor it, so for the same reason it is likewise to admit a consul. But there being no absolute and perfect obligation to this, the nation disposed to have a consul, must procure itself this right by the very treaty of commerce." He goes on, "The consul is no public minister, and cannot pretend to the privileges appertaining to such character. Yet bearing his sovereign 's commission, and being in this quality received by the prince in whose dominions he resides, he is in a certain degree entitled to the pro- tection of the law of nations." No doubt he is entitled to the protec- tion of the law of nations, and so is every man who comes into this country from a foreign state under a safe conduct. Vattel proceeds : "The sovereign, by the very act of receiving him, tacitly engages to allow him all the liberty and safety necessary to the proper discharge of his functions, without which the admission of the consul would be insignificant and deceptive. His functions first require that he be not a subject of the state where he resides ; as then he would be obliged in all (294) things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his post." What is the case of this defendant? He is not indeed stated to be a natural born subject of this country, but he is shown to be a person owing a temporary alleg- iance, and it is not negatived that he is a subject born. At any rate it appears that he is a merchant domiciled, and subject to the bank- rupt laws. If he has incurred penalties under those laws, shall he be exempted from their operation by being appointed a consul of a foreign prince? Vattel says, "his functions seem to require (and 429 CONSULAR CASES this is merely argument and it is put as doubtful) that the consul should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violate the laws of nations by some enormous misdemeanor." This certainly may at first seem to import that Vattel considered a consul to be entitled to all the privileges of an embassador. But let us advert to the fourth book of the same author, ch. 6. s. 75. In the sections immediately preceding that section, he has been discussing the different functions of embassadors, envoys, residents, and the last description is that of ministers. He then says in s. 75. "We have spoken of consuls in the article of commerce. (B. 2. c. 2. s. 34.) Formerly agents were a kind of public ministers ; but in the pres- ent increase and profusion of titles this is given to mere commissioners appointed by princes for their private affairs, and who not unfre- quently are subjects of the country where they reside. They are not public ministers, and consequently not under the protection of the law of nations. But a more particular protection is due to them than to other foreigners or citizens, and (295) some regard in con- sideration of the prince whom they serve." Then he says. "If the prince sends an agent with credentials and for public affairs, the agent from that time becomes a public minister." Then he goes to another subject and discourses of credentials, by which the character of the minister is made kno\Mi to the sovereign to whom he is sent. It was so positively averred in the argument that Vattel was an auth- ority to show that consuls were under the protection of the law of nations, that I was desirous of consulting him; and the passage to which I have referred shows that it is otherwise. So in another place, B. 4. c. 8. s. 112. he says. "A subject of the state may even in accepting the commission of a foreign prince remain a subject." And he adds that the states general of the United Provinces in 1681 de- clared, "that no subject of the state should be received as embassador, or minister of another power, but on condition that he should not divest himself of his quality of subject, even with regard to the juris- diction both in civil and criminal affairs ; and that whoever, in making himself known as embassador, or minister, had not mentioned his quality of subject to the state, .should not enjoy those rights or privileges, which are peculiar to the ministers of foreign powers." I confess I should be afraid to say that an embassador announced under that name would not be entitled to the privileges belonging to the ministers of foreign powers, except upon the condition in the above declaration. But Vattel proceeds, "Such a minister may likewise retain his former subjection tacitly, and then by a natural conse- quence drawn from his actions, state, and whole behavior, it is kno^vn 430 CONSULAR CASES that he continues a subject. Thus notwithstanding the declaration above mentioned, (296) those Dutch merchants who procure to them- selves the title of residents of some foreign prince, yet continue in trade, thereby sufficiently denote that they remain subjects." Again I should be afraid of adopting a rule that would leave it to the party himself, whether or not he would deprive his sovereign of the bene- fit resulting from the privileges belonging to his character of minister. However Vattel says, ""Whatever inconveniences there may be in the subjection of a minister to the sovereign with whom he resides, if the foreign prince will put up with such inconveniences, and is content- ed with a minister on that footing, it is his o^vn doing, and should his minister on any ignominious occasion be treated as a subject, he has no cause of complaint. ' ' This is peculiarly the case with respect to consuls; for in fact they generally are the subjects of the state to which they are appointed, and in which they reside. A knowledge of the language of the country, and of the forms which exist there, such as will be best found in a subject of the country, is absolutely necessary for the discharge of their functions ; and if the sovereign of a foreign state is contented to appoint a subject, he must put up with all the consequences which may attend his being a subject. This is according to what is laid down in Vattel, and therefore it has not been correctly asserted that he is at variance wdth the other authorities upon the nature of a consul's character. Wicquefort and Barbeyrac are decidedly of the same opinion that a consul is not entitled to the jus gentium belonging to embassadors. And in Barbuit's case Lord Talbot said, that as there was no authority for considering the defen- dant in any other view than as a consul, unless he could be satisfied (297) that those acting in that capacity w^ere entitled to the jus gentium he could not discharge him. It appears from a note to that case that the government afterwards settled the matter ; and very like- ly, it was thought convenient to our relations at that time, consider- ing our connection with the sovereign who had appointed the con- sul, to soothe him by payment of the money. That is the farthest extent to w^hich the argument arising from what was done in that case can be carried ; for Lord Talbot seems to have been of opinion that as consul he was not entitled. The case in Burrow {a) turned merely on the construction of the clause in the act of parliament re- specting the servants of embassadors, and did not involve this ques- tion. The case before Lord Talbot is the only one upon the subject. Clarke v. Cretico (&) was decided upon the ground of the party being divested of the character of consul at the time of the arrest, but the (a) Triquet v. Bath, 3 Burr. 1478. (6) 1 Taunt. 106. 431 CONSULAR CASES chief justice seems to have inclined to the opinion that a consul was not privileged. In the absence then of all authority, either of cus- tom or the law of nations, how can we say that a consul is entitled to this privilege? The instances cited from Wicquefort prove the con- trary. The dispute between the pope and the republic of Venice is detailed at length in (c) Beawes, from which it appears that the vio- lanee offered to the consul of that republic by the governor of Ancona, was of such a sort, and done in such a manner as would have entitled any sovereign state under the like circumstances to have made re- clamation ; their consul was grossly insulted. Nobody is disposed to deny that a consul is entitled to privileges to a certain extent; such (298) as for safe conduct, and if that be violated the sovereign has a right to complain of such violation. This consideration disposes of the authority which was endeavored to be derived from that case. Then it is expressly laid down that he is not a public minister, and more than that, that he is not entitled to the jus gentium. And I cannot help thinking that the act of parliament which mentions onl}' "embassadors and public ministers" and which was passed at a time when it was an object studiously to comprehend all kinds of public ministers entitled to these privileges, must be considered as declatory not only of what the law of nations is, but of the extent to which that law is to be carried. It appears to me that a dif- ferent construction would lead to enormous inconveniences, for there is a power of creating vice-consuls; and they too must have similar privileges. Thus a consul might appoint a vice consul in every port to be armed with the same immunities, and be the means of creat- ing an exemption from arrest indirectly which the crown could not grant directly. The mischief of this would be enormous. In this case it does not appear that the debt was not contracted before the time of the defendant's having the character of consul. If we saw clearly that the law of nations was in favor of the privilege, it would be afforded to the defendant; and it would be our duty rather to ex- tend than to narrow it. But we are of opinion that no such privilege exists, but that this defendant is like every other merchant liable to arrest. Rule discharged. VON THOROROVICH v. FRANZ JOSEF BENEFICIAL ASS'N., (1907, U. S. — Austria-Hungary) 154 Fpd. Rep. 911. Archhald, Circuit Court. In equity. On motion for preliminary injunction. (c) p. 299. 5th edit. 432 CONSULAR CASES Adolph Eichholz, for plaintiff, Henry J, Scott, for defendants. ARCHBALD, District Judge.' This is a bill brought by the imperial and royal consul of Austria-Hungary, located at Philadel- phia, to restrain the defendant company, its officers and agents, from making use of the name or portrait of the Emperor Franz Josef, or from representing or doing anything to induce the belief that the business conducted by the company has any official or other relation with such (912) emperor. The company was incorporated in 1887 by the court of common pleas No. 2, of Philadelphia, as a beneficial association, imder the general corporation act of the state of Pennsyl- vania of April 29, 1874 (P. L. 73), which, among other things, allows (section 2) the formation of corporations for "the maintenance of a society for beneficial or protective purposes to its members, from funds collected therein;" and it was subsequently merged with the Panonia Beneficial Association , thereafter apparently losing its identity and ceasing to exist as a separate organization. Within the last year, however, in some way which is not disclosed, the individual defendants, who are its officers, have got hold of the charter and are carrying on a life insurance business under it, soliciting the patron- age of persons of German, Hungarian, Polish, and Slavish birth, who have emigrated to the United States from Austria-Hungry, and are subjects of the Emperor Franz Josef; it being represented to them, in that connection, that the association is under his special patronage and has his imperial sanction and concern, of which the use of his name to designate the association, and the adoption of his portrait as a part of the corporate seal, is a direct assurance, according to the customs of the country from which they come. National feeling and loyalty to the emperor are thus played upon to further the business of the association, the deceptive and fradulent character of which, as it is claimed, is evidenced not only by these misstatements, but by others as to its original organization, age, and present financial stand- ing, in line with which the imposing building of the Liverpool, London & Globe Insurance Company, on Walnut street, Philadelphia, where the defendants occupy two small and scantily furnished rooms, is pictured and palmed off as the home office of the association. Feeling that his countrymen are being deceived and cheated and are in need of his assistance and protection, the present bill has been filed, and an injunction is sought by the consul to put an end to these practices. The right of the consul to intervene in this way is challenged upon several grounds. The whole basis of the bill, as it is said, is the ^Specially assigned. 433 CONSULAR CASES use of the emperor's name, which, except sentimentally, is no con- cern of the consul; the breach of privacy involved.if any, being a personal matter, which the emperor himself must go about to redress, and not the consul. And against this, moreover, as it is claimed, equity will not relieve even as to an ordinary individual (Robertson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 89 Am. St. Rep. 828, 59 L. R. A. 478; Atkinson v. Doherty & Co., 121 Mich. 372, SO X. W. 285. 46 L. R. A. 239, 80 Am. St. Rep. 507), much less one standing in the public eye like the emperor. Corliss v. AValker Co., 57 Fed. 434. 64 Fed. 280, 31 L. R. A. 283. But without assenting to all that is so said it is correct to the extent, that, if the use of the em- peror's name, in connection with the defendant association, is offensive to the emperor or his subjects, it is not for the consul to remedy it. The Anne, 3 Wheat. (U. S.) 435, 4 L. Ed. 428. But that is not ma- terial, not being the basis of the present bill. The consul, in other words, does not come into court in the name or on behalf of the em- peror. He is here professedly and distinctly to prevent the mislead- ing and defrauding of his countrymen, and for this he has express sanction. By treaty between the United (913) States and the emperor of Austria ratified June 27, 1871, it was, among other things, provided that : ' ' Consuls general, consuls, vice-consuls, or consular agents, of the two coun- tries, may in the exercise of their duties, apply to the authorities within their district, whether federal or local, judicial or executive, * * * for the purpose of protecting the rights of their countrymen." The present suit, therefore, if sustained by the facts, is entirely justified. And as bearing upon this, it may be noted in passing that this court some two years ago entertained a somewhat similar bill under this treaty provision. That the parties who are in control of the defendant association are making deceptive use of the Emperor Franz Josef's name and portrait, for the purpose of inducing people of Austria-Hungarian nationality to deal with them, is clearly sho\Mi by the affidavits, and is not denied. Not only is national sentiment thus appealed to in exploiting the business, which, within proper limits, may not be repre- hensible, but direct representation is made that the association is un- der the particular patronage of the emperor, which is known to be untrue, but to which, according to what is testified, the use of his name and portrait gives credence among these people ; neither being admissible by the laws of the country from which they come, except by express imperial consent. This of itself is suggestive of dishonest purposes, but might not, standing alone, be sufficient to lay hold of, 434 CONSULAR CASES if a legitimate and responsible business was being conducted. But this is not the fact. As a beneficial association, to say no more, the defendants have no right to go into life insurance, which is altogether different. Commonwealth v. National Mutual Aid Association, 94 Pa. 481 ; Commonwealth v. Equitable Beneficial Association, 137 Pa. 412, 18 Atl. 1112. And while the insurance department of the state may be relied upon to remedy this, when once its attention has been called to it, in the meantime ignorant immigrants are liable to be de- ceived into investing their money upon expectations, which have little chance, if indeed they ever were intended to be realized. Ignorant of the laws and customs of the land, and coming from a country where they are materially different, they need the assistance of some one upon whom they can rely to take measures such as this to protect them against imposition, and it is for this, among other things, that the treaty evidently provides. If arrested or imprisoned, there can be no question as to the right, as well as the duty, of the consul to intervene in their behalf; and it is but little less important that he should do so where their scanty and hard-got earnings are at stake. It is true that the association has not failed as yet to fulfill its un- dertakings, nor, so far as appears, has any complaint with regard to it been made ; and in confining the relief sought to restraining the use of the emperor's portrait and name, which only goes to a part of the mischief done, there may be a suspicion that the consul, after all, is more zealous in behalf of his imperial master than those whose cause he professes to espouse. But, starting out, as the association does, and making use of deceptive agencies, as those in charge of its affairs have shown themselves ready and willing to do, the fraud is so mani- (914) fest that it is not necessary to wait until actual injury has been done, which would only afford very imperfect relief. And while the use of the emperor's name is onl}'^ one of the means employed, and if innocently used there would be no particular ground for complaint, yet it is by far the most important one ; and perverted, as it is, and lending itself, as it unfortimately does, in the control of unscrupulous parties, to the serious deception practiced in this case, the only safety is in compelling it to be completely dropped. And if there is occasion for requiring this upon the facts shoMTi, the sentimental motive, if any, of the plaintiff, is of no particular concern. This does not prevent the defendants, as it will be noted, from continuing their business, whatever it may be, provided they do so under another name, which is easily obtained. Nor does it matter that the name which they have was given them by charter. The courts do not hesitate to restrain the use of corporate names, where they are the means of working injury. American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189, 435 CONSULAR CASES 47 Ati. 936; Singer Mfg. Co. v. Jiine Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Charles S. Higgins Co. v. Higgins Soap Co., 1-44 N. Y. 462, 39 N. E. 490, 27 L. R. A. 42, 43 Am. St. Rep. 769; Van Houten v. Hooten Cocoa Co. (C. C.) 130 Fed. 600. The way out of it is to amend the name. And now July 12, 1907, after due hearing, it is ordered and de- creed that a preliminary injimction issue, restraining, preventing, and prohibiting the said Franz Josef Beneficial Association, William R. Evans, Julius Bacher, Victor Steinberg, and Samuel Steiner, their agents, representatives, and employes, from employing, using, printing or having printed or impressed, upon any letter heads, cards, certi- ficates or other literature or printed matter, either the name, profile, or portrait of Franz Josef, emperor of Austria, and king of Himgary, and restraining, prohibiting, and enjoining the said Franz Josef Beneficial Association and the other said defendants, their agents, rep- resentatives, and employes, from doing any and all things calculated or tending to induce the public to believe that the business conducted by the defendants or the said beneficial association, whose officers and agents they are, has any oficial or other relation with Franz Josef, emperor of Austria, and king of Hungary, aforesaid. VROW ANNA CATHARINA, (1803, Great Britain— Portugal) 5 Bob. C. 15. Sir William Scott, High Court of Admiralty. [The Dutch consul complained to the Portuguese government that the capture made by British was a violation of neutrality, and the Portuguese consul made the claim in the Prize proceedings. — Ed.] WAITSHOAIR v. THE CEAIGEND, (1890, U. S.— Great Britain) 42 Fed. Rep. 175. JIanford, District Court. [Court takes jurisdiction in a libel suit of British seaman for wages. In the case of The New City, 47 Fed. Rep. 328, same judge declared this was done when there was no protest made by British consul. — Ed.] WALDRON V. COOMBE, (1810, Great Britain) 3 Taunt. 162. Sir James Mansfield, Court of Common Pleas. This was an action brought to recover the loss sustained by the plaintiff, by tlie deterioration of some kerseymeres on board the 436 CONSULAR CASES Earl Percy, insured by a policy subscribed by the defendant, "at and from London to Rio Janerio." The plaintiff averred a loss by perils of the sea. The defendant pleaded non assumpsit, and paid into court £50 per cent. Upon the trial, at Guildhall, at the sittings in this term, before Mansfield, Ch, J. the plaintiff proved, that, if the goods had not been damaged, the market would have afforded a profit of £15 per cent. ; that the goods were damages, apparently by seawater, to a considerable degree; the witness would not have given £30 per cent, for them ; but the plaintiff gave no other evidence of the manner in which the damage was occasioned. To prove the amount of the loss, a witness produced a certificate from the British vice- consul there, of the amount for which the goods were there sold, being £9 15s. per cent, only, of the sum insured ; and the same witness swore, that, by the law of the Brazils, and other parts of South America, the vice consul is constituted general agent for all absent owners of goods, and (163) that the same law authorizes and compels the vice- consul to make sale of all damaged goods of all absentees, with the assistance of two British merchants as assessors. Mansfield, Ch. J. admitted this evidence, although Best, Serjt., for the defendant, ob- jected to it, but reserving to him liberty to move. Best also con- tended that, as the plaintiff had given no evidence of any loss by perils of the sea, there was no proof of that allegation ; in support of which proposition he cited Rucker v. Palsgrave, ante, v. 1. p. 419. for that the payment of money into court did not admit anything more than that the defendant owed £50 per cent, for some cause or other; but Mansfield, Ch. J. held that it admitted that the loss was occasioned, as averred, by peril of the sea, and that the only thing in issue was the amount of the loss: and the jury, under his direction, found a verdict for the plaintiff for £40 4s. damages, with liberty to move to reduce it to £20 the surplus of £70 per cent, after deducting the £50 paid into court, if the court should think the evidence was not admis- sible. Best, on a subsequent day, moved for a new trial upon two grounds. First, that the certificate was not admissible evidence. Sec- ondly, that although the defendant admitted damage occasioned by perils of the sea to the amount of £50 per cent, he had gone no further, and that the defendant, if he had not been prevented, would have given evidence at the trial, that other goods, sent by the same vessel, were in no respect damaged, from whence the jury might infer, that all the damage beyond the extent of £50 per cent, was occasioned, not by perils of the sea, but by the improper stowage of the plaintiffs : they had not in fact even proved that there had been a storm, or an hour's foul weather, during the voyage. [Mansfield, Ch. J. The payment of 437 CONSULAR CASES money into court admits the storms. La\\Tence and Heath, justices. No facts are laid before the court, from wliich we can (164) infer that the defendant could put himself in a better situation if he had the advantage of a new trial] The court granted a rule nisi upon the admissibility of the evidence only. Shepherd, Serjt., showed cause. He contended, first, that there was a mistake in the verdict, which, instead of giving £70 per cent, damages, should have given £85 damages ; for it was proved that the goods were damaged £70 per cent, below the invoice price, and that if they had been uninjured, they would have yielded a profit of £15 per cent, and the loss was to be computed, not on the invoice price, but on the market price of the place at which they had arrived, so that, if the disputed evidence were inadmissible, it would make a dif- ference of £5 per cent, only in the amount of the damages. But sup- posing the verdict to be now computed upon the right principle, the evidence was sufficient to entitle the plaintiff to his verdict. This sale was compulsory ; the vice-consul, as agent of the assured, could not do otherwise than sell the goods. The assured, acting for the bene- fit of the concern, could get at nothing more than the amount render- ed by the vice-consul's account. The law put the sale into the hands of that officer. The loss, therefore, is what the owner sustains, taking this law, and the operation of it, into the account. He could get no more for the goods; therefore the loss is the difference between the sum received, and what the goods were worth when found. The plaintiff's damage is to that extent. Suppose the law had been, that damaged goods should be burnt, although the sea should have only partially damaged them, yet the owner would have had a right to re- cover the whole value, if in consequence of that partial loss the law in- terfered and destroyed the whole. This is in the plaintiff* 's favor, whether the paper be evidence or not that they have received only the proceeds of the sale according to that account. (165) And unless the contrary be shown, it must be taken that they received no more. The defendant should have shown that we did or might have received more. In another point of view the evidence is admissible: the vice- con.sul at the Brazils may be considered as the agent of all concerned. If so, he is the agent for the underwriters; therefore his account would bind both parties. MANSFIELD, Ch. J. It was in like manner argued in a case here, Heath v. Burgess, (a) upon the loss of a trinket which cost a very few pounds in the East Indias, that the plaintiff was entitled to calculate the lo.ss at an advance of £70 or £80 per cent. I held that {a) C. B. Mich, term, 1809, and Hil. term, 1810. 438 CONSULAR CASES against a carrier, as an insurer, he could only calculate the value of his goods at the invoice price. The case of an insurance was fully agreed upon there. LAWRENCE, J. Surely it is understood, that when the goods are shipped upon an invoice, the loss is calculated upon that basis; when otherwise, recourse is had to the produce at the market. MANSFIELD, Ch. J. The only question is, whether this loss should not have been proved by ordinary evidence. They should have had somebody to attend at the sale, who might have been a witness. Best, Serjt., contra. It does not appear that the law of the Brazils gives effect or authority to the certificate of the vice-consul. Custom-house officers are bound by law to attend clearances, etc., but their certificate does not prove any facts. It does not appear the vice- consul was sworn. There is no instance of such evidence being ad- mitted. Judgments are pronounced in the presence of both parties. (166) MANSFIELD, Ch. J. I thought at the trial it was very difficult to bring this within any head of evidence. It was somewhat analogous to the proceedings of courts and other public functionaries : but I know of no instances of such as this being received. I dare say it would be evidence in any other country. It came nearest to the case of judgments in foreign courts. But we receive judgments under the seals of the courts. The vice-consul is no judicial officer. He acts under a wise regulation to prevent the improper disposition of damaged goods. They are put into warehouses appropriated to them by government. The vice-consul must preside at the auction. There is no rule in the English law which makes his certificate evidence. He has been supposed to be an agent, and he is, to some purposes. So is an auctioneer in this country ; nevertheless his certificate is not evidence in a court of justice, but what was done at the auction must be proved. The business of the vice-consul is to see a fair sale. It is going much farther to say that his certificate shall bind the parties. Anybody present might have proved the facts. The chirograph of fines here proves itself, but the endorsement of the proclamation of the fine must be proved by a compared copy of the record. Rule absolute to reduce the damages to £70 per cent. WALTER D. WALLET, THE, (1895, U. S.— Great Britain) 66 Fed. Rep. 1011. Toulmin, District Court. (Extract) The British consul does not petition the court to take 439 CONSULAR CASES jurisdiction of the case; but, on the contrary, requests the court to decline [So on groimd of coniity case throwTi out. — Ed.] WEDDERBURN, SUCCESSION OF, (1841, U. S.) 1 K. 263. Garland, Supreme Court of Louisiana, (Extract) We now take the case upon the petition and evidence, as acted upon by the judge of the court of probates. A copy of the will of Alexander Wedderburn is presented ; it is certified by persons stating themselves to hold official capacities, and to be authorized to act in the premises. They show the probate of the will in the preroga- tive court of the Province of Cantebury, in London, by its records ; and the consul of the United States in London, certifies to the official char- acter of these persons and that full faith and credit are due and ought to be given to their acts ' in judicature and thereout. ' This certificate is in conformity to the act of the legislature passed in 1837, and is legal e\adence of the attributes, official station, and authority of the persons certifying. 1 Bullard & Curry's Digest 822. We do not know in what way these documents can be made more authentic, and the certificates appended to them, show that they would be received as evidence in the courts of Great Britain. WEIBERG V. THE ST. OLOFF, (1790, U. S.— Sweden) 2 Pet. Ad. 428; Fed. Cases 17,357. Per Curiam, District Court. On the 19th of November, 1790, a libel was filed in this court by Mr. Bankson one of the proctors of the court, in behalf of Errick Weibcrg and Nicholas Casterius, two mariners belonging to the brig St. Oloff, a Swedish vessel under the command of Jonas Holmstedt. The complaint states, that the libellants had entered on board this vessel about the 27th day of December in the year 1789, at Cadiz, in the kingdom of Spain, on a voyage from thence to Philadelphia and back again to Cadiz; for the wages of five Spanish milled dollars per month. That the captain had, during the voyage, and since her arrival in this port, treated the libellants with uncommon cruelty, in- somuch that it was dangerous for them to remain any longer in his employ; that application had been made in their behalf to Mr. Hell- steadt. the Swedish consul, resident in Philadelphia, who refused to grant them any redress. W^hereupon, they pray that their wages may 440 CONSULAR CASES be paid, and themselves be discharged from any further continuance on board the said brig. In consequence of this libel, a citation was issued calling upon Jonas Holmstedt and all persons (429) concerned, to appear and make their objections, if any they have, why a decree should not pass according to the prayer of the libellants. On the morning of the twentieth, the court met according to ad- journment, when the marshal made return of the citation, certifying that the same had been duly served. The marshal's deputy at the same time informed the court, that he had first waited on Mr. Hell- stead, the Swedish consul resident here, and informed him that he was going to serve the citation upon captain Holmstedt, and showed the copy of the writ; after which he went on board and presented it to the captain, who absolutely refused to receive it, saying, in an angry manner, that he was on Swedish ground : that he then left the citation on the binnacle, and came away. Soon after this Mr. Hellsteadt the consul came into court, and after making some apology for the captain 's behaviour, on account of his not understanding the English language, said, that by the laws of Sweden, the captain is vested with supreme command over his crew, who has a right to punish them according to his own discretion, to any extent, short of murder , or breaking of limbs ; and that he neither is, nor can be, answerable to any foreign jurisdiction whatever for the exercise of this power; being accountable to the Swedish courts of judicature alone, on the return of the ship ; that it was the cap- tain 's duty to refuse obedience to the citation issued from this court, or to do anything that would seem to acknowledge its jurisdiction in a question between him and any of his crew; and that by the treaty between the United States and (430) the court of Sweden, it is stipulated that the subjects of Sweden shall enjoy the same priv- ileges in the ports of the United States that have been or may be granted to the most favored nation in amity with them. Inferring, that as by the convention with France, the French consuls in the ports of the United States have an exclusive jurisdiction in the ad- justment of disputes between the captains and their mariners, so ought the regulations and discipline on board of Swedish vessels, to be governed by the Swedish laws and customs, without the interference of the courts of the United States. The judge said, that he thought that the citation should have been attended to with more respect. However, he w^ould take the ob- jection to the jurisdiction of the court under advisement, and ex- amine the treaties referred to. Errick Weiberg one of the libellants, then applied to the judge, 441 CONSULAR CASES suggesting that he was apprehensive of ill-usage if he should remain in the power of the captain. But the judge directed him to continue his duty on board; telling him. that he was under the protection of the court, and believed there was no danger of the captain's using him ill. As yet no process had issued, except the citation ; but as the jurisdiction of the court had been thus expressly denied, the proctor for the libellants moved on the tAventv-second to amend his libel, and prayed that process might be awarded and issued against the brig St. Olotl'. her tackle, etc., to abide the decree of this court in the cause aforesaid, which was ordered ; an amended libel brought (431) forward, and filed, and a writ of attachment issued accordingly. On the twenty-third, the court being met, the proctor for the libellants complained that, notwithstanding what had been said on Saturday, the captain had seized upon Errick Weiberg, as soon as he came on board from attending on the court, had him put in heavy irons and contined him in the hold of the vessel. Weiberg was then examined, and testified to the cruel treatment he had received, and the irons and chains were brought in and laid before the judge. On the 24th the Rev. I\Ir. Collins, the Swedish missfonary resident in Philadelphia, appeared in court, and presented a letter signed by Jonas Holmstedt, in which he says, that "although he could not acknowledge the jurisdiction of the court in the cause brought be- fore it by his seamen, as this would be repugnant to the allegiance he owed to the king of Sweden, yet no affront was intended to the court." At the same time another letter was handed to the judge, signed Charles Hellsteadt, Swedish consul, in which he says , that he is responsible in a public line to the king of Sweden ; that he had al- ready' remonstrated before the court for interfering in the dispute between Captain Holmstedt and tAvo of his seamen. And that he by this letter, protested against any decision that should be made for or against the parties, as the complaint ought to have been made to him, as consul, agreeably to the treaty now in force, between Sweden and North America. The judge considered the cruel imprisonment of the libellant, whilst suing for justice, and under (432) the protection of the law, us a manifest contempt of the court. He ordered all proceedings re- specting the libel to be laid aside, until this contempt should be ex- amined into, and the rights of humanity vindicated, which he said were paramount to all treaties. The court was thereupon adjourned for an hour to meet at the State House, the court having hitherto sat at the admiralty office. The attorney of the United States for the district of Pennsylvania. 442 CONSULAR CASES was called upon for his opinion, who attended, together with several gentlemen of the bar, and also some Swedish gentlemen, and others who had heard of the matter. After examining the testimony with respect to captain Holm- stedt's conduct. Mr. Lewis, Mr. Bankson, and Mr. Sergeant, united in opinion, that the treaty with Sweden, as to the point in question, could not be so explained as to give the captain the exclusive juris- diction he claims. That the words "the most favored nation," used in the treaty with Sweden, are the words used in all the treaties be- tween the United States and foreign nations in amity with them, and were never interpreted to found a jurisdiction exclusive of, or inconsistent with, the laws of the United States in our own ports. That such a right was never pretended in constructions of the general treaty with France; but that for vesting such a jurisdiction, a special convention was thought necessary, the terms of which have been specifically designated, and not left to interferences, or general con- struction. That as the captain's conduct, in the instance before the court, could not be supported by his exposition of the treaty, neither could he be justified (433) in refusing obedience to the process of the court. And that this, together with the cruel treatment of the libellant, whilst under the protection, of the court, was, and ought to be, deemed a contempt. Adding, however, that some allowance might reasonably be made, in alleviation, for the captain's being unacquainted with the language, and ignorant of the laws and customs of our country. The judge having attended to these arguments, observed, that the admitting a jurisdiction exclusive of the laAvs of the United States, was a matter of too serious import to be rested on implication alone. That the words referred to in the treaty with Sweden could not by any construction be supposed to embrace all the objects comprehended in the special convention made with France. That let the question of jurisdiction be what it may, there could be no necessity for the con- tempt, which captain Holmstedt had thrown upon the court, or of the violence with which the mariner had been treated. That a citation was the most moderate and unexceptionable process knowTi, for bringing a matter before the court; after which, any plea to the jurisdiction might have been discussed, and would have been con- sidered; but that his unprecedented conduct violated not only the rules of law, but even of common decorum. That he could not con- sistently with his duty, but consider the absolute refusal of answering to the citation, and the subsequent treatment of the libellant, whilst under the protection of the court, as a contempt, which ought not to pass unnoticed. That as to the amount of any fine that might be 443 CONSULAR CASES laid on this occasion, he was ^villing to give the apology that had been made its full "weight, (434) but that he was firm in asserting the rights and authority of this court in the matter now before it. JUDG^IENT. That Jonas Holmstedt has been guilty of a con- tempt, in refusing to obey the process of the court, and in confining in irons a suitor whilst imder the protection of the laws, and applying for the justice of the country. For which offence I award that he pay a fine of twenty dollars, with the costs of prosecution, and stand committed until this sentence is complied with." On the 25th, the court met on the business of the libel. Mr. Collin, the Swedish minister, presented a letter to the judge, signed Jonas Holmstedt, in which he says, that he is willing to answer any questions respecting the prosecution of this libel that may be asked, but cannot enter into any defence of his cause, as this would be a violation of the laws of Sweden, which he is, on his allegiance bound to obey. And then quotes a passage from the Sw^edish maritime law, directing that "if any disputes on the sea or on shore should arise between the captain and his crew, the parties are not permitted to sue for redress in a place subject to a foreign government," etc., etc. But these letters were not noticed, inasmuch as they uniformly ex- pressed a denial of the jurisdiction of the court. Mr. Soderstrom, the Swedish consul, resident in Boston, being here, addressed the court and said; That he was very sorry he had not sooner heard of this disagreeable business, which he would have endeavored to prevent by all the mrans in his power. That he could not justify the conduct of captain Holmstedt with respect to con- tempt, but as judgment had already past, the error was irretrievable : (435) as to the libel now depending, he prayed the judge to indulge him with a little time whilst he endeavored to accommodate matters between the parties, by proposing that the libellants should be dis- charged from the brig St. Oloff, and put on board some other vessel bound for Sweden, and that the wages due to them should be paid over to him (Mr. Soderstrom), in trust for the mariners, until the dispute might be determined in Sweden by a court of that country. The judge approving of this proposal, the court adjourned till further notice. On the 27th, Mr. Bankson received a letter from the Rev. Mr. Collin, informing that the proposed accommodation had proved un- successful, as consul Hellsteadt, "after the unlimited protest he had before made, could not permit the seamen to be received on board of any other vessel. ' ' 444 CONSULAR CASES The cause then proceeded in course ; the witnesses were examined, and the testimony reduced to writing. On the 29th, a further progress was made in the cause, and some points of form adjusted. And on the 30th, after proclamation made, the judge gave his final decree, in these words : — I have duly considered the libel filed in this cause, and have heard and carefully attended to the testimony of the witnesses pro- duced respecting the same; and I find, that the libellants entered on board the brig St. Oloff, Jonas Holmstedt, master, in December 1789, in the port of Cadiz, in the kingdom of Spain ; that no articles or writ- ten contract (436) whatever were presented to the libellants by the captain, or any other person, to engage them in the service of this vessel, or for any designated voyage, except that they were told by the captain that they were going to Philadelphia and back again to Cadiz, where they should be paid off, at the rate of five dollars per month, and there discharged. That after their arrival at Philadel- phia, the captain, without any new agreement whatever, undertook another voyage to St. Andero in Spain and back again to the port of Philadelphia, with the libellants on board, where the vessel now is. It also appears that captain Holmstedt had treated the libellants with uncommon severity and cruelty, especially Weiberg, whom he had confixied in jail six days in Philadelphia, before their sailing for St. Andero, and as soon as he was taken on board again, beat him and otherwise abused him, so that he lay three days disabled from doing any duty. That after their return to this port the last time, the libellants made application to a proctor of this court, to sue for the justice of the country in their behalf. That in prosecuting this busi- ness, they had been absent from the brig about three hours, and on their return to the vessel, the captain caused them both to be pinioned and confined ; threatening them with a dra"WTi cutlass and denouncing vengenance against them. And that afterwards, whilst this cause was before the court and during an adjournment thereof, the cap- tain caused Weiberg, one of the libellants, to be laden with irons and chains, and confined on board the brig. Under these circumstances, I am of opinion. First, that the deviation to the port of St. Andero (437) in Spain, was such an alter- ation of the voyage, as might justify the mariner in demanding his wages. And secondly, that captain Holmstedt 's conduct ^vith regard to the libellants. hath been so cruel and unwarrantable by the mari- time law, as would of itself have dissolved the contract — The rights 445 CONSULAR CASES of hmnanitj' being superior to the specific laws and customs of any nation : Whereupon, I adjudge and decree, that Errick Weiberg and Nicholas Casterius be discharged from any further services on board the brig St. Oloff ; and that they have and receive the sum of eighty- six dollars and twenty cents, in full of the wages respectively due to them. That is to say, to Errick Weiberg the sum of fifty-three dol- lars and eighty -six and two-thirds cents, and to Nicholas Casterius the sum of thirty two dollars and thirty-three and a third cents. And I do further decree, that the brig St. Oloff, with her tackle, apparel and furniture, or such parts thereof as may be necessary to satisfy this judgment, together with the charges and costs of suit, be sold by the marshal of this district, according to law and custom, for the pur- poses aforesaid.^ WELHAVEN, THE, (1892, U. S.— Norway) 55 Fed. Rep. 80. Touhnin, District Court. [Court refused to take jurisdiction in the case of an American seaman who claimed he shipped on a Nor^vegian ship for a trip be- tween American ports and held that the Norwegian consul had juris- diction under the treaty, — Ed.] WELSH V. HILL, (1807, U. S.— Cuba) 2 Johns. 373. Hopkins, Supreme Court, New York. Motion for commission — Affidavit. Mr. Hopkins moved for a commission in this cause, to take the depositions of certain witnesses residing in Havana. The affidavit on which the motion was founded was made by the plaintiff, who re- sided in Havana, before the commercial and naval agent of the United States, resident at Havana, in the island of Cuba. Mr. Henry, contra, objected that the affidavit had not been taken before a proper magistrate, and could not, therefore, be read in this court. PER CURIAM. The affidavit is admissible for the purpose of the present motion. Rule granted. Cited in 47 Barb., 119. ' Tn the cane of Willendfion vh. the Forsoket, vol. T, page 197, the practice of the court as to foreign seamen, ig fully explained. 446 CONSULAR CASES W. L. WHITE, THE, (1885, U. S.) 25 Fed. Eep. 503. Brown, District Court. [Discharge of a seaman under sect. 4,583 of revised statutes, as amended in 1884. — Ed.] WILBOR V. UNITED STATES, (1902, U. S.) 38 Ct. CI. 1. Howry, Court of Claims. [Vice-consul claims half of consul-general's salary while he was absent. Court decides that by waiting until death of consul-general and allowing settlement to be made vice-consul is presumed to have made an agreement with consul-general. — Ed.] WILCOX V. LUCO, (1896, U. S.) 45 Pac. 676. McFarland, Supreme Court of California. [Consul cannot waive his right to trial by federal courts, and state courts have, ever since the act of Feb. 18, 1875, no jurisdiction in cases affecting consuls. ~ A rehearing granted and the opinion reversed, see 50 Pac. Rep. 758.— Ed.] WILCOX V. LUCO, (1897, U. S.) 118 Cal. 639; 50 Pac. 758. Harrison, Supreme Court of California. [Since the act of Feb. 18, 1875, state courts have concurrent juris- diction in suits affecting consuls. The jurisdiction of the state court cannot take away the jurisdiction of the local court, and consul may have his case reviewed by latter court, unless he waives this right, and if he suffers default he likewise waives this right. Four judges concurred and McFarland (v. 45 Pac. 676) dissented. —Ed.] WILDENHUS'S CASE,^ (1886, U. S.— Belgium) 120 U. S. 1; 7 Sup. Ct. Eep. 385. Waite, Supreme Court. Appeal from the circuit court of the United States for the district of New Jersey. ^Affirming 28 Fed. Eep, 924. 447 CONSULAR CASES Ou habeas corpus. Judgment below dismissing the writ. Peti- tioner appeals. F. R. Coudert and Edward K. Jones, for appellants, Mali, consul of his majesty the king of the Belgians, and others. C. H. Winfield, for appellee, keeper of the common jail of Hudson county, New Jersey. "WAITE, C. J. This appeal brings up an application made to the circuit court of the United States for the district of New Jersey, by Charles Mali, the "consul of his majesty the king of the Belgians, for the states of New York and New Jersey, in the United States," for himself, as such consul, "and in behalf of one Joseph Wildenhus, one Gionviennie Gobnbosich, and John J. Ostenmeyer," for the re- lease, upon a ^vrit of habeas corpus, of Wildenhus, Gobnbosich, and Ostenmeyer from the custody of the keeper of the common jail of Hudson county, New Jersey, and their delivery to the consul, "to be dealt with according to the law of Belgium." The facts on which the application rests are thus stated in the petition for the writ : "Second. That on or about the sixth day of October, 1886, on board the Belgian steamship Noordland, there occurred an affray be- tween the said Joseph "Wildenhus and one Fijens, wherein and where- by it is charged that the said Wildenhus stabbed with a knife and in- flicted upon the said Fijens a mortal wound, of which he afterwards died. "Third. That the said Wildenhus is a subject of the kingdom of Belgium, and has his domicile therein, and is one of the crew of the said steamship Noordland, and was such when the said affray oc- curred. "Fourth. That the said Fijens was also a subject of Belgium, and had his domicile and residence therein, and at the time of the said affray, as well as at the time of his subsequent death, was one of the crew of the said steamship. "Fifth. That, at the time said affray occurred, the said steam- ship Noordland was lying moored at the dock of the port of Jersey City, in said state of New Jersey. "Sixth. That the said affray occurred and ended wholly below the deck of the said .steamship, and that the tranquillity of the said port of Jersey City was in nowise disturbed or endangered thereby. "Seventh. That said affray occurred in the presence of several witnes.ses, all of whom were and still are of the crew of the said vessel, and that no other person or persons except those of the crew of said vessel were present or nearby. "Eighth. Your petitioner therefore respectfully shows unto 448 CONSULAR CASES this honorable court that the said affray occurred outside of the juris- diction of the said state of New Jersey. ** Ninth. But, notwithstanding the foregoing facts, your peti- tioner respectfully further shows that the police authorities of Jersey City, in said state of New Jersey, have arrested the said Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John J. Ostenmeyer, of the crew of the said vessel, (one of whom is a quarter- master thereof,) and that said Joseph Wildenhus has been committed by a police magistrate, acting under the authority of the said state, to the common jail of the county of Hudson, on a charge of an indict- able offense under the laws of the said state of New Jersey, and is now held in confinement by the keeper of the said jail, and that the others of the said crew, arrested as aforesaid, are also detained in cus- tody and confinement as witnesses to testify in such proceedings as may hereafter be had against the said Wildenhus. ' ' Articles 8, 9, and 10 of a royal decree of the king of the Belgians, made on the eleventh of March, 1857, relating to consuls and consular jurisdiction, are as follows: "Art. 8. Our consuls have the right of discipline on Belgian merchant vessels in all the ports and harbors of their district. In matters of offenses and crimes they shall make the examination con- formably to the instructions of the disciplinary and penal code of the merchant service . They shall claim, according to the terms of the conventions and laws in vigor, the assistance of the local authorities for the arrival and putting on board of deserting seamen. "Art. 9. Except in case the peace of the port shall have been broken by the event, the consul shall object to all attempts that the local authority might make to act in relation to crimes or offenses committed on board of a Belgian vessel by a man of the crew on another man of the same crew, or of the crew of another Belgian ves- sel . He shall take the proper steps to obtain that the cognizance of the case be turned over to him, in order that it be ultimately tried under the Belgian laws. "Art. 10. When men belonging to the crew of a Belgian vessel shall be guilty of offenses or crimes out of the ship, or even on board the ship, against persons not of the crew, the consul shall, if the local authority arrests or prosecutes them, take the necessary steps to have the Belgians so arrested treated with humanity, defended, and tried impartially-" The application in this case was made under the authority of these articles. Article 11 of a convention between the United States and Bel- gium "concerning the rights , privileges, and immunities of consular 449 CONSULAR CASES officers," conchuied March 9, 1880, and proclaimed by the president of the United States, March 1, 1881, (21 St. 123,) is as follows: "The respective consuls general, consuls, vice-consuls, and con- sular agents shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of all differences which may arise, either at sea or in port, between the captains, officers, and crews, without exception, particularly with reference to the adjustment of wages and the execution of contracts. The local authorities shall not interfere, except when the disorder that has arisen is of such a nature as to disturb tranquillity and public order on shore or in the port, or when a person of the country, or not belonging to the crew, shall be concerned therein. In all other cases, the aforesaid authorities shall confine themselves to lend- ing aid to the consuls and vice-consuls or consular agents, if they are requested by them to do so, in causing the arrest and imprisonment of any person whose name is inscribed on the crew list, whenever, for any cause, the said officers shall think proper. ' ' The claim of the consul is that, by the law of nations and the provisions of this treaty, the offense with which Wildenhus has been charged is "solely cognizable by the authority of the laws of the king- dom of Belgium," and that the state of New Jersey is without juris- diction in the premises. The circuit court refused to deliver the prisoners to the consul, and remanded them to the custody of the jailer. 28 Fed. Rep. 924. To reverse that decision this appeal was taken. By sections 751 and 753 of the Revised Statutes the courts of the United States have power to issue writs of habeas corpus which shall extend to prisoners in jail when they are in "custody in viola- tion of the constitution or a law or treaty of the United States," and the question we have to consider is whether these prisoners are held in violation of the provisions of the existing treaty between the United States and Belgium. It is part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement; for, as was said by Chief Justice Mar- shall in Tlie Exchange, 7 Cranch, 144: "It would be obviously incon- venient and dangerous to society, and would subject the laws to con- tinual infraction, and the government to degradation, if such • • • merchants did not owe temporary and local allegiance, and were not amendable to the jurisdiction of the country." United States V. Diekolman, 92 U. S. 520; 1 Phillim. Int. Law, (3d Ed.) 483, 450 CONSULAR CASES § eccli.; Twiss, Law Nat. 229, § 159; Creasy, Int. Law, 167, § 176; Halleck, Int. Law, (1st Ed.) 171. And the English judges have uni- formly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell, Cr. Cas. 72 ; S. C. 8 Cox, Crim. Cas. 104; Regina v. Anderson, 11 Cox, Crim. Cas. 198, 204; S. C. L. R. 1. Cr. Cas. 161, 165; Regina v. Keyn, 13 Cox, Crim. Cas. 403, 486, 525; S. C. 2 Exch. Div. 63, 161, 213. As the owner has voluntarily taken his vessel, for his own private purposes, to a place within the dominion of a government other than his own, and from which he seeks protection during his stay, he owes that gov- ernment such allegiance, for the time being, as is due for the pro- tection to which he becomes entitled. From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel, or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those be- longing to her, and did not involve the peace or dignity of the coun- try, or the tranquillity of the port, should be left by the local govern- ment to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce, should require. But, if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. Such being the general public law on this subject, treaties and conventions have been entered into by nations having commercial intercourse, the purpose of which was to settle and define the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. The first of these conventions entered into by the United States after the adoption of the constitution was with France, on the four- teenth of November, 1788, (8 St. 106,) "for the purpose of defining and establishing the functions and privileges of their respective con- suls and vice-consuls," article 8 of which, is as follows: "The con- suls or vice-consuls shall exercise police over all the vessels of their respective nations, and shall have on board the said vessels all power and jurisdiction in civil matters in all the disputes which may there 451 CONSULAR CASES arise. They shall have entire inspection over the said vessels, their crew, and the changes and substitutions there to be made, for which purpose they may go on board the said vessels whenever they may judge it necessary-. "Well understood that the functions hereby al- lowed shall be confined to the interior of the vessels, and that they shall not take place in any case which shall have any interference with the police of the ports where the said vessels shall be." It was when this convention was in force that the cases of The Sally and The Newton arose, an account of which is given in Wheat- on's Elements of International Law , (3d Ed.) 153, and in 1 Philli- more's International Law, (3d Ed.) 484, and (2d Ed.) 407. The Sally was an American merchant vessel in the port of Marseilles, and the Newton a vessel of a similar character in the port of Ant- werp, then under the dominion of France. In the case of The Sally, the mate, in the alleged exercise of discipline over the crew, had in- flicted a severe wound on one of the seamen, and, in that of The Newton, one seaman had made an assault on another seaman in the vessel's boat. In each case the proper consul of the United States claimed exclusive jurisdiction of the offense, and so did the local authorities of the port ; but the council of state, a branch of the poli- tical department of the government of France to which the matter was referred, pronounced against the local tribunals, "considering that one of these cases was that of an assault committed in the boat of the American ship Newton by one of the crew upon another, and the other was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen for having made use of the boat without leave." This was clearly because the things done were not such as to di.sturb "the peace or tranquillity of the port." Wheat. Elem. (3d Ed.) 154. The case of The Sally was simply a quarrel between certain of the crew while constructively on board the vessel, and that of The Newton grew out of a punishment inflicted by an officer on one of the crew for disobedience of orders. Both were evidently of a character to affect only the police of the vessel, and thus within the authority expressly granted to the consul by the treaty. No other treaty or convention bearing on this subject, to which our attention has been called, was entered into by the United States until a treaty with Sweden and Norway, on the fourth of September, 1816. (8 St. 232,) where it was agreed, by article 5, that "the consuls and their deputies shall have the right, as such, to act as judges and arbitrators in the differences which may arise between the captains and crews of the vessels of the nation whose affairs are intrusted to their care. The respective governments shall have no right to inter- 452 CONSULAR CASES fere in matters of this kind, except the conduct of the captain or crew shall disturb the peace and tranquillity of the country in which the vessel may be, or the consul of the place shall feel himself obliged to resort to the interposition and support of the executive authority to cause his decision to be respected and maintained ; it being, neverthe- less, understood that this kind of judgment or award shall not de- prive the contending parties of the right which they have, on their return, to recur to the judicial authorities of their own country." Subsantially the same provision is found in treaties or conven- tions concluded with Prussia in 1828, art. 10, (8 St. 382;) with Rus- sia in 1832, art. 8, (8 St. 448;) with Greece in 1837, art. 12, (8 St. 504;) with Hanover in 1840, art. 6, (8 St. 556;) with Portugal, also in 1840, art. 10, (8 St. 564;) with the grand duchy of Mecklenburg- Schwerin in 1847, art. 9, (9 St. 916;) with Oldenburg in 1847, (9 St. 868;) with Austria in 1848, art. 4, (9 St. 946;) with the Hanseatic republics in 1852, art. 1, (10 St. 961;) with the Two Sicilies in 1855, art. 19, (11 St. 650;) with Denmark in 1861, art. 1, (13 St. 605;) and with the Dominican republic in 1867, art. 26, (15 St. 487.) In a convention with New Grenada concluded in 1850 the provision was this: "They [the consuls, etc.] may cause proper order to be maintained on board vessels of their nation, and may decide on dis- putes arising between the captains, the officers, and the members of the crew, unless the disorders taking place on board should disturb the public tranquillity, or persons not belonging to the crew or to the nation in whose service the consul is employed; in which case the local authorities may interfere." Article 3, cl. 8, (10 St. 903.) Following this was a convention with France, concluded in 1853, (10 St. 996,) article 8 of which is as follows: "The respective con- suls general, consuls, vice-consuls, or consular agents shall have ex- clusive charge of the internal order of the merchant vessels of their nation, and shall alone take cognizance of differences which may arise, either at sea or in port, between the captain, officers, and crew, without exception, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not, on any pretext, interfere in these differences, but shall lend forcible aid to the consuls, when they may ask it, to arrest and imprison all persons composing the crew whom they may deem it necessary to con- tine. Those persons shall be arrested at the sole request of the con- suls, addressed in WTiting to the local authority, and supported by an official extract from the register of the ship or the list of the crew, and shall be held, during the whole time of their stay in the port, at the disposal of the consuls. Their release shall be granted at the 453 CONSULAR CASES mere request of the consuls made in writing. The expenses of the ar- rest and detention of those persons shall be paid by the consuls. The same provision, in substantially the same language, was embraced in a convention with Italy in 1868, art 11, (15 St. 609;) and in another with Belgium, also in 1868, art 11, (16 St. 761.) This convention with Belgium continued in force imtil superseded by that of 1880-81, under which the present controversy arose. The form of the provision foimd in the present convention with Belgium first appeared in a convention with Austria concluded in 1870, art. 11, (17 St. 827,) and it is found now in substantially the same language in all the treaties and conventions which have since been entered into by the United States on the same subject. See the conventions with the German Empire in 1871, art. 13, (17 St. 928;) with Netherlands in 1878, art. 11, (21 St. 10;) with Italy in 1881, art. 1, (22 St. 18;) with Belgium in 1881, as stated above; and with Roumania, the same year, art. 11, (23 St. 3.) It thus appears that at first provision was made only for giving consuls police authority over the interior of the ship, and jurisdiction in civil matters arising out of disputes or differences on board; that is to say. between those belonging to the vessel. Under this police authority the duties of the consuls were evidently confined to the maintenance of order and discipline on board. This gave them no power to punish for crimes against the peace of the coimtry. In fact, they were expressly prohibited from interfering with the local police in matters of that kind. The cases of The Sally and The Newton are illustrative of this position. That of The Sally related to the discipline of the ship, and that of The Newton to the main- tenance of order on board. In neither case was the disturbance of a character to affect the peace or the dignity of the country. In the next conventions consuls were simply made judges and arbitrators to settle and adjust differences between those on board. This clearly related to such differences between those belonging to the veasel as are capable of adjustment and settlement by judicial decision or bj' arbitration, for it simply made the consuls judges or arbitrators in such matters. That would of itself exclude all idea of punishment for crimes against the state which affected the peace and tranquillity of the port ; but, to prevent all doubt on this subject, it was expressly provided that it should not apply to differences of that character. Next came a form of convention which in terms gave the consuls authority to cause proper order to be maintained on board, and to de- cide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is sub- 454 CONSULAR CASES stantially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the con- duct of the United States and Belgium towards each other in this particular. Each nation has granted to the other such local juris- diction within its own dominion as may be necessary to maintain order on board a merchant vessel, but has reserved to itself the right to interfere if the disorder on board is of a nature to disturb the public tranquillity. The treaty is part of the supreme law of the United States, and has the same force and effect in New Jersey that it is entitled to else- where. If it gives the consul of Belgium exclusive jurisdiction over the offense which it is alleged has been committed within the territory of New Jersey, we see no reason why he may not enforce his rights under the treaty by writ of habeas corpus in any proper court of the United States. This being the case, the only important question left for our determination is whether the thing which has been done — the disorder that has arisen — on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the "public re- pose," of the people who look to the state of New Jersey for their protection. If the thing done — "the disorder," as it is called in the treaty — is of a character to affect those on shore or in the port when it becomes knowTi, the fact that only those on the ship saw it when it was done, is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they, as a rule, care for anything done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Not so, however, with crimes which from their gravity awaken a public interest as soon as they become kno^\Ti, and especially those of a character which every civilized nation considers itself bound to provide a severe punishment for when committed with- in its own jurisdiction. In such cases inquiry is certain to be in- stituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads, and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes laiown, it is a "disorder," the nature of which is to affect the community at large, and consequently to invoke the power of the local government whose people have been disturbed by what was done. The very nature of such an act it to disturb the quiet of a peaceful community, and to create, in the language of the treaty, a "disorder" which will "disturb tranquillity and public order on 455 CONSULAR CASES shore or in the port. ' ' The principle M'hieh governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignity of the home of the ship, but those which disturb the pubUc peace may be suppressed, and, if need be, the offenders punished, by the proper authorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felon- ious homicide is a subject for the local jurisdiction ; and that, if the proper authorities are proceeding with the case in a regular way, the consul has no right to interefere to prevent it. That, according to the petition for the habeas corpus is this case. This is fully in accord with the practice in France, where the government has been quite as liberal towards foreign nations in this particular as any other, and where, as we have seen in the cases of The Sally and The Newton, by a decree of the council of state, repre- senting the political department of the government, the French courts were prevented from exercising jurisdiction. But afterwards, in 1859, in the case of Jally, the mate of an American merchantman, who had killed one of the crew and severely wounded another on board the ship in the port of Havre, the count of cassation, the high- est judicial tribunal of France, upon full consideration, held, while the convention of 1853 was in force, that the French courts had right- ful jurisdiction , for reasons which sufficiently appear in the follow- ing extract from its judgment: "Considering that it is a principle of the law of nations that every state has jurisdiction throughout its territory ; considering that, by the terms of article 3 of the Code Napoleon, the laws of police and safety bind all those who inhabit French territory, and that consequently foreigners, even transeuntes, find themselves subject to those laws; considering that merchant ves- sels entering the port of a nation other than that to which they belong cannot be withdrawn from the territorial jurisdiction, in any case in which the interest of the state of which that port forms part finds itself concerned, without danger to the good order and to the dignity of the government; considering that every state is interested in the repression of crimes and offenses that may be committed in the ports of its territory, not only by the men of the ship's company of a for- eign merchant vessel towards men not forming part of that company, but even by men of the ship's company among themselves, when- ever the act is of a nature to compromise the tranquillity of the port, or the intervention of the local authority is invoked, or the act con- stitutes a crime by common law, [droit commxin, the law common to 456 CONSULAR CASES all civilized nations,] the gravity of which does not permit any nation to leave it unpunished, without impugning its rights of juris- dictional and territorial sovereignity, because that crime is in itself the most manifest as well as the most flagrant violation of the laws which it is the duty of every nation to cause to be respected in all parts of its territory." lOrtolan, Diplomatic de la Mer (4th Ed.) 455, 456; Sirey, (N. S.) 1859; p. 189. The judgment of the circuit court is affirmed.^ WILDENHUS, IN RE, 28 Fed. Kep. 924. See "Wildenhua's Case" 120 TJ. S. 1. WILHELM FREDERICK, THE, (1823, Great Britain) 1 Hag. 138; Edwards 128. Lord Stowell, High Court of Admiralty. [Cited in Bucker v. Klorkgeter. — Lushington maintained that am- bassador's consent was necessary to take jurisdiction. — Phillimore ar- gued that consul-general had always been considered as giving the "consent of the accredited agent of the government, to which the suitors belong, as w^as observed in the case of the Courtney, which has been cited." Lord Stowell said in this case ambassador's consent had been given, and that the ship was British anyway. — Ed.] WILLENDSON v. THE FORSOKET, (1801, U. S.— Denmark) 1 Pet. Ad. 197; Fed. Cases 17,682. Richard Peters, District Court. The claimant, a foreign seaman, and one of the crew of a Danish ship, belonging to Altona, cited the master on a claim for wages. Al- though bound by the articles to return to Altona, the seaman alleged a discharge at Philadelphia. The captain denied the discharge, and charged the mariner with desertion, for more than twenty-four hours, which, by the Danish laws, forfeited wages. He had refused to admit the seaman into the ship, and the sailor stayed on shore at lodgings for a considerable time : there were faults on both sides ; but the mas- ter now offered to take him again on board, on his promise of good behavior in future, and to forgive all past offenses. It was insisted, that this was a case in which the court ought to interfere, the contract being at an end, by the alleged discharge, and the sailor, in a Danish court, would not have the benefit of the *From 7 Sup. Ct. Bep. 385. 457 CONSULAR CASES proof of which he was here possessed, to repel the charge of deser- tion, and support of his alleged discharge. JUDGE. — It has been my general rule not to take cognizance of dispute between the masters and crews of foreign ships. I have commonly referred them to their own courts. In some very peculiar eases, I have afforded the seamen assistance, to pro- (198) tect them against oppression and injustice; and in eases where the voyage was broken up, or ended here, I have compelled the payment of wages. Masters too have always been assisted in recovering deserters, and reducing to obedience perverse and rebellious mariners ; these must be restored only to the ship from which they abscond. Under pre- text of carrying home deserting seamen, attempts have been made to increase the force, by adding to the numbers, of an armed belligerent ship. Neither assistance or permission should be afforded for this purpose in a neutral territory. In the case now before me, I see no cause to warrant my taking cognizance. It is the duty of the master to return the seaman to his own country. This he offers to do. — It is my duty, from motives of justice, and reciprocal policy, to discourage foreign seamen under engagements to perform their voy- age, from breaking their contracts, with any views of obtaining high- er wages, or from other unjustifiable motives, quitting the service in which they are engaged. Reciprocal policy, and the justice due from one friendly nation to another, calls for such conduct in the courts of either country^. Whatever ill humors or misconduct may have prevailed between the parties in this suit, the master now places the matter on a reasonable ground. He must give the sailor a certificate of forgiveness of past offenses, to avail him in his own country. If he takes the seaman on board, and there shall appear no deception in the present offer, I shall not further interfere, but dismiss the suit. If any difference should hereafter arise, it must be settled by a Danish tribunal. (199) It was stipulated on the part of the captain, by authority from the Danish consul, that the master should bona fide comply with his en- gagement, and pay the sailor's debt for boarding, to be deducted out of his wages. WILLIAM HARRIS, THE, (1837, U. S.) "Ware, 372; Fed. Casoa 17,695. Ware, District Court. r Extract) But the allegation in the libel is that the libellant was ordered to be imprisoned by the American consul, and it seems to be assumed in the argument that this would relieve the master from his responsibility. In the first place it is to be remarked that 458 CONSULAR CASES the order of the consul was obtained by the master on his own ex parte representation. And in the second, (379) that a consul has no authority to commit seamen to prison. The laws of the United States invest their consuls and commercial agents with certain powers to be exercised for the benefit and protection of American seamen when in foreign ports ; as for the relieve of destitute mariners and furnish- ing them with the means of returning home. But no portion of the judicial power of the United States is conferred on consuls. They cannot take cognizance of the offences of seamen in foreign ports and sentence them to punishment. When the master of a vessel finds it necessary for the purpose of preserving discipline on board his ship and maintaining his authority, to treat any of his crew with severity, as a matter of prudence it may be well for him to consult the consul and take his advice. This is usually done on his o^vn repre- sentation of the case, but the interposition of the consul has never been supposed to exempt the master from his o^vn responsibility. Wilson v. The Mary, Gilpin, 31. WILLIAMS V. THE WELHAVEN, See The Welhaven. WILSON V. THE MARY, (1828, U. S.) Gilp 31; Fed. Cases 17,823. HopMnson, District Court. (Extract) I will take this occasion to notice an error which, I fear, has frequently, as in this instance, misled our masters of ves- sels. They seem to believe that they may do anything, provided they can obtain the assent of the consul to it ; which assent consuls are apt to give with very little consideration. When the master, on his re- turn, is called upon to answer for his conduct ; he thinks it is enough to produce a consular certificate approving his proceeding; or to say, he consulted the consul, or acted on his advice. This is alto- gether a mistake. It is certainly a very prudent precaution to consult the consul, in any difficulty, and if the case were fully and fairly stated to him, and his advice faithfully pursued, it would afford a strong protection on the question of malicious or wrongful intention, but it can give no justification or legal sanction to an illegal act ; nor deprive those, who have been injured, of their legal rights and rem- edies. WOPE V. HEMENWAY, (1855, U. S.) 1 Sprague 300; Fed. Cases 18,042. Sprague, District Court. [See Snow v. Wope where this case was affirmed. This case contains an interesting account of the imprisonment of seamen and failure of consul to perform his duty. — Ed.] 459 CONSULAR CASES WTMAN. IN RE. (1906, U. S.— Russia) 77 N. E. 379; 191 Mass. 276. Lathrop, Supreme Court of Massachusetts. Appeal from Probate Court, Middlesex County. Petition of Charles F. Wyman, Russian vice-consul, tor appoint- ment as administrator of the estate of Julius Saposnik. From a de- cree dismissing the petition, petitioner appeals on an agreed statement of facts. Reversed. Frederic B. Greenhalge, for public administrator, Frederic R. Coudert and John H. Appleton, for appellant. LATHROP, J. On the agreed facts in this case we have no doubt that the judge of the probate court erred in appointing a public ad- ministrator as administrator of the estate of a Russian subject dying here intestate and leaving personal property, and in dismissing the petition of the Russian vice-consul on the ground that it did not ap- pear that he had a legal right to be appointed administrator of the estate to the exclusion of the public administrator. By article 8 of the treaty of December 6-18, 1832 (8 Stat. 448,) between Russia and the United States, it was provided : ' ' The two contracting parties shall have the liberty of having in their respective ports consuls, vice-consuls, agents, and commissaries of their own ap- pointment, who shall enjoy the same privileges and powers of the most favored nation. " The same treaty in article 10 provides : "The citizens and subjects of each of the high contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by testament, donation or otherwise, and their rep- resentatives, being citizens or subjects of the other party shall suc- ceed to their said personal goods, whether by testament or ah intes- tato, and may take possession thereof, either by themselves, or by others acting for them, and dispose of the same at will, paying to the profit of the respective governments such dues only as the in- habitants of the country wherein the said goods are shall be subject to pay in like cases." (380) Under the most favored nation clause reliance is had upon the provisions of the treaty of July 10, 1853, between the Argen- tine Republic and the United States (10 Stat. 1001,) which read as follows : "If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the consul general or consul of the nation to which the deceased be- longed, or the representative of such consul-general or consul in his absence, shall have the right to intervene in the possession, adminis- tration and judicial liquidation of the estate of the decea,sed, conform- 460 CONSULAR CASES ably with the laws of the coimtry, for the benefit of the creditors and legal heirs." See, also, article 8 of the treaty between Costa Eica and the United States of July 10, 1851 (10 Stat. 921.) There is but little authority directly in point, on the question raised by this appeal. In Lanfear v. Ritchie, 9 La. Ann. 96, decided in 1854, the decision was against the vice consul of Sweden and Nor- way, on the ground that the right claimed was "incompatible with the sovereignity of the state." But this was at a time when we might expect the doctrine of state rights to be strongly insisted upon. On the other hand, there are two decisions in the Surrogate's Court for Westchester county, N. Y., which fully sustain the position of the vice- consul in the case before us. These cases are well considered and cover the entire ground. Estate of Tartaglio, 12 Misc. Rep. 245, 33 N. Y. Supp, 1121 ; In re Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119. None of these cases are binding upon us, and the case must be decided on general principles. Among the powers conferred upon the president by article 2, § 2, of the constitution of the United States, is this ; ' ' He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur." By article 6 it is declared: "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, imder the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Treaties are to be liberally construed. Shanks v. Dupont, 3 Pet. 242, 249, 7 L. Ed. 666 ; Hauenstein v. Lynham, 100 U. S. 483, 487, 25 L. Ed. 628. When, then, anything in the constitution or laws of a state are in conflict with a treaty, the latter must prevail, and this court has not hesi- tated to follow this rule, which is generally recognized as the law of the land. Tellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379; Ware v. Hylton, 3 Dall. 199, 237. 1 L. Ed. 568;United States v. Forty-three Gallons of Whisky, 93 U. S. 188, 197, 23 L. Ed. 846 ; Hauenstein v. Lynham, 100 U. S- 483, 489, 25 L. Ed. 628 ; the Head Money Cases, 112 U. S. 580, 598, 5 Sup. Ct. 247, 28 L. Ed. 798, per Miller, J. ; Geofroy v. Riggs, 133 U. S. 258, 267, 10 Supt. Ct. 295, 33 L. Ed. 642; In re Parrott (C. C.) 1 Fed. 481. While it may be true that there is some limit to the powers of the president and Senate in making treaties, as has been intimated in some of the cases in the supreme court of the United States, we can- not accede to the contention of the counsel of the public administra- tor, that the treaties in question in this ease are beyond the jurisdic- 461 CONSULAR CASES tion of the treaty making power; nor can we accede to the further contention as to the construction of the treaty which was adopted by the judge of the probate court. We might perhaps stop here, but as the question of giving a bond is sure to arise, we are of the opinion that the vice consul, as he has applied for letters of administration, and thus has submitted himself to the court, should be required to give a bond, and in other respects to conduct himself with respect to the estate as would any other administrator. The order, therefore, will be: Decrees of the probate court re- versed. Ui2 OPINIONS OF THE ATTORNEYS GENERAL Vol. I, p. 41 (Bradford) KESPECT DUE TO CONSULS A riot before the house of a foreign consul by a tumultuous assembly, re- quiring him to give up certain persons supposed to be resident with him, and in- sulting him with improper language, is an offence not within the act of the 30th of April, 1790, for the punishment of certain crimes against the United States. A consul is not a public minister, nor entitled to the privilege attached to the person of such an officer. As the law now stands, the offence in question cannot be legally prosecuted in the courts of the United States. If, however, the grand jury will present the offence in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in contro- versy will thus be put in a train for judicial determination. Philadelphia, February 20, 1794. Sir : By the correspondence between the British consul at Norfolk and the attorney of the United States for the district of Virginia, which you transmitted to me for consideration, it appears that a ques- tion has arisen, whether a riot committed by a number of persons tumultuously assembled before the house of a foreign consul, requir- ing him to deliver up certain persons supposed to be resident with him, and insulting him (42) \\\t\\ improper language, can be the subject of prosecution in the courts of the United States. I have now the honor to state to you my opinion on that point, agreeably to your request. Upon the best consideration I can give the subject, I am satisfied that this offense is not within the act of the 30 April, 1790, for the punishment of certain crimes against the United States. The only sec- tion which in any degree relates to it, is that which prescribes the punishment "for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public minister:" but this cannot reach the offence in question, because it is now fully settled that a consul is not a public minister. He is not considered as such by the writers on the law of nations, because he is not in any de- gree invested with the representative character; and it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister. The con- stitution of the United States also distinguishes between them, where it extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The same distinction is carefully ob- 463 Vol. I, p. 41 (BRADFORD) served in the 13th section of the act establishing the judicial courts of the United States. An argument in favor of the jurisdiction of these courts over offences of the kind in question, seems to result from the clause in the constitution just referred to ; but it may be observed, that these words (sufficiently indefinite in themselves) have received a construction, and seem to be limited to prosecutions "or suits against consuls," and to "suits in which a consul shall he a party." It may be further remarked, that by the constitution the supreme court is to have original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." If this be construed necessarily to include criminal offences against consuls, it would, as the courts are consti- tuted, defeat the provisions of the very next clause, which directs "that all crimes shall be tried in the state where they are committed." I therefore coincide in opinion with the district attorney, that, as the law now stands, the offence in question cannot be legally prose- cuted in the courts of the United States. But, sir, (43) if the party injured is advised or believes that the federal courts are competent to sustain the prosecution, I conceive he ought not to be concluded by my opinion or that of the district attorney. If he desires it, he ought to have access to the grand jury with his witnesses; and if the grand jury will take it upon themselves to present the offence in that court, it will be the duty of the district attorney to reduce the presentment into form, and the point in controversy will thus be put in a train for judicial determination. I have the honor, &c., WM. BRADFORD. To the Secretary of State. Vol. I, p. 43 (Bradford) DUTIES OF DISTRICT MARSHALS Jfarshals are not required by law to execute the sentence of a French consul, arising under the 12th article of the convention with his most Christian majesty and the United States. New York, March 6, 1794. I have considered the twelfth article of the convention between his late Most Christian Majesty and the United States of America, and also the act of congress concerning consuls and vice-consuls, as far as it prescribes the duty of the marshals of the United States; and it is my opinion that the marshals are not bound by the law to execute any sentence of a French consul, arising under the said article. RICH. HARRISON. Attorney United States for the New York District. 464 OPINIONS OF ATTORNEYS GENERAL Philadelphia, March 14, 1794. I have considered the convention and acts above referred to, and I perfectly coincide in the opinion given by the attorney of the United States for the district of New York. WM. BRADFORD. Vol. I, p. 77 (Lee) CONSULAE PEIVILEQES A consul is not privileged from legal process by the general law of nations, nor is the French consul-general by the consular convention between the United States and France. Though a consul, for a transaction, in which he acted as the commercial agent of his government, the president has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice. Philadelphia, November 21, 1797. Sir: I have taken into consideration the letter of citizen Le- tombe, consul-general of the French republic in the United States of America, bearing date the 16th instant, with the several papers which accompanied it. The United States have acknowledged citizen Letombe in the character of consul-general; and thus only they know him. As such, he is not privileged from legal process, either by the (78) general law of nations, or by the consular convention between the United States and France; and, if he is authorized to represent the republic of France in any ministerial character, he has never yet so offered himself or been received. The second article of the convention seems to me to preclude all doubt respecting the suability of the consul- general. The immunities and privileges annexed to his office are there distinctly enumerated; and, in all other respects, he is subject to the laws as our own citizens are. Though the transaction which has given rise to the suit instituted by John Coffin Jones was not of a private character, but of a public nature, which concerned the re- public of France, and in which the consul-general acted as the com- mercial agent of the republic; yet the President of the United States has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice. It does not belong to me, in my public capacity, to advise how the consul-general may proceed to relieve himself from the obligation of giving bail; yet, having a wish that every inconvenience may be avoided by him, consistent with the laws of our country, I will venture to suggest that the right to hold him to bail, or to recover the debt from him, cannot, in my opinion, be maintained ; and as to the former, any one of the justices of the supreme court is competent to decide 465 Vol. I, p. 77 (LEE) at his owu mansion, -whenever application shall be made. The rea- son for this opinion is, that it evidently appears the contract was founded on the credit of the French republic only, and not on the private credit of citizen Letombe. I am, &c., &c., CHARLES LEE. To the Secretary of State. Vol. I, p. 81 (Lee) ACTIONS AGAINST FOEEIGNEES The president will not interfere with judicial proceedings between an indi- vidual and the commissioner of a foreign nation where the controversy may have a legal trial. But a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does in pursuance of his commission, to any judicial tribunal in the United States. Philadelphia, December 29, 1797. Sir: I have taken into consideration your letter of the 23d, enclosing the note of his Britannic Majesty's minister, and the copy of Henry Sinclair's memorial, complaining of two suits now depending against him in a court of law at Alexandria. If the cause of action is fully and truly stated in the memorial, Henry Sinclair, upon a plea to the jurisdiction of the court, ought to prevail before the court; for it is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amendable for what he does in pursuance of his commission, to any judiciary tribunal in the United States. Though this be so, yet, according to the constitution and laws of the United States, the executive cannot interpose with the judiciary proceedings between an individual and Henry Sinclair, whose con- troversy is entitled to a trial according to law, and to whom it is hoped justice will be impartially and speedily administered. The principle on which the interference of the president might be thought proper is the same that has been settled in the case of General Collot, and I believe in some other cases; in all of M^hich there has been one and the same opinion against the power of the executive to interfere. I am, &c., &c., To the Secretary of State. CHARLES LEE. Vol. I, p. 378 (Wirt) EXECUTION OF A CONSULAR BOND Attestation is not essential to the validity of a consular bond. 4GG OPINIONS OF ATTORNEYS GENERAL Office of the Attorney General, June 30, 1820. Sir: I know not by what accident your communication enclos- ing Mr. Strong's bond of office has been misplaced, so as never to have been brought to my notice till this time. I regret the accident, al- though it can have produced no public inconvenience. It is not essential to the validity of a consular bond that it should be attested. The plea of non est factum would, in such a case, be sufficiently met by proof of the handwriting. The acknowledgment of it before Mr. Jay would constitute him a sufficient witness, even if his official certificate should be decided to be insufficient. The bond is herewith returned. I have the honor, &c., &c., &c., WM. WIRT. To the Secretary of State. Vol. I, p. 406 (Wirt) FOREIGN MINISTERS, CONSULS, &c. Foreign consuls and vice-consuls are not public ministerB within the law of nations, or the acts of congress, but are amenable to the civil jurisdiction of our courts; and in the case of the Genoese consul (2 Dallas, 297) it was held that they were not privileged from prosecutions for misdemeanors. But consuls are bound to appear only in the federal courts; the constitu- tion and laws, contemplating the responsibility of consuls, having provided these tribunals, in exclusion of the state courts, in which they shall answer. Office of the Attorney General. December 1, 1820. Sir : I have examined, with the respect and attention to which it is justly entitled, the letter of General Vives, the minister of his Catholic Majesty, which you have done me the honor to submit for my official opinion; and now proceed to give you the result of this examination. The complaint is, that Mr. Vallavaso, the Spanish vice-consul at New Orleans, has been arrested and held to bail at the suit of Mr, Sere, of that place, for an alleged injury to the property of com- mercial pursuits of the latter; and General Vives calls on the Presi- dent of the United States to suspend the proceeding in this case, on the ground that Mr. Vallavaso, being a public functionary of his Catholic Majesty, is protected from arrest by the law of nations, is not subject to the jurisdiction of our tribunals, and can be made to answer for this alleged injury only to the sovereign from whom he derives his commission. The president possess no powers but those which he de- (407) 467 Vol. I, p. 406 (WIRT) rives from the constitution and laws of the United States; and these give him no authority to interfere in this case. It is not a criminal proceeding, in the name of the United States : if it were, the president might, if he thought it proper, arrest the proceedings by a nolle prosequi. But this is a civil suit, in the name of an individual, brought before the courts of our coimtry, for the redress of a private commercial injury. Mr. Vallavaso may plead to the jurisdiction of the court, and bring the question, if he chooses, before the supreme tribunal of the nation ; and his plea, if it be well founded, will protect him against the suit. But the subject being a civil individual suit, of which the judiciary has possession, the president has no authority to interpose in the case, either by arresting the proceedings, by pun- ishing the plaintiff, or even ordering a prosecution against him, unless the step which he has taken be in violation of some law of the United States. The only law which we have, that looks to the protection of for- eign functionaries against civil suits, is the act of congress of the 30tli April, 1790, " for the pimishment of certain crimes against the United States;" the 25th and 26th sections of which are exact tran- scripts of the enacting clauses of the British statute of the 7th Anne, c. 10, entitled " an act for preserving the privileges of ambassadors and other public ministers of foreign princes and states. ' ' It will not be thought foreign to a question which involves the efficacy of our government to protect its intercourse with foreign nations, to observe, that until the statute of Anne, to which I have just referred, the British Crown possessed no power to punish the violation of the person of an ambassador. The preamble of that statute recites the occasion of its enactment: it was, that "several turbulent and disorderly persons had, in a most outrageous manner, insulted the person of his excellency Andrew Artemononitz Mattireof, ambassador extraordinary of his Czarish Majesty, Emperor of Great Russia, her Majesty's good friend and ally, by arresting him and taking him by violence out of his coach in the public street, and de- taining him in custody for several hours, in contempt of the protec- tion granted by her Majesty, contrary to the laws of nations," &c. The sequel of the transaction we have from (408) Blackstone's Commen- taries, (vol. ], p. 285.) The Czar insists that the sheriff of Middle- sex and his accomplices should be put to instant death; and was much surprised to receive for answer, "that the Queen could in- flict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land; and, therefore, she was per- suaded that he would not insist on impossibilities." The sheriff and his accomplices were, it is true, tried and found guilty of the 468 OPINIONS OF ATTORNEYS GENERAL facts; but the question how far these facts were criminal, was re- served to be argued before the judges, but was never determined, the Czar having been appeased by the statute which was presented to him, under very humiliating circumstances, on the part of the Queen, with a repetition of the apology for her want of power as to the past, and a pledge of the act as a law for the future; whereupon the offenders were, at his request, discharged from all further prosecu- tion. This statute of Anne is the first and last which has been passed by the British parliament, for the protection of foreign functionaries. Our act of congress is precisely commensurate with it ; and the power which the British monarchy wanted to so late a period of its history, was conferred on our government in the first year of its formation. If a consul be an ambassador or a minister, within the meaning of this act, the process is by the act declared null and void to all in- tents, constructions, and purposes whatsoever ; and the plaintiff, and all others, concerned in the suing forth, prosecution, and execution of the writ, are, upon conviction, subject to imprisonment not ex- ceeding three years, and to fine at the discretion of a court. The functionaries protected by the act are '^ ambassadors and other public ministers of any foreign prince or state authorized, and received as such by the President of the United States. ' ' Are consuls within this description? Under the statute of Anne, (in which the descriptive words are precisely the same,) it has been determined that they are not. The question was raised by one Barbuit, a com- mercial agent of the King of Prussia, and was decided by the Lord Chancellor Talbot, in the 10th year of George II. The chancellor, after hearing counsel on the point, having proceeded to examine the nature of Barbuit 's functions, for the purpose of ascertaining whether he came (409) within the description of a public minister used in the statute, and having observed on his wanting that essential feature of this character — "the being intrusted to transact affairs between the two crowns" — concludes thus: "At most, he is only a consul. It is the opinion of Barbeyrac, Wicquefort, and others, that a consul is not entitled to the jus gentium belonging to ambassadors ; and as there is no authority to consider the defendant in any other view than as a consul, unless I can be satisfied that those acting in that capacity are entitled to the jus gentium I cannot discharge him," (Talbot's cases, p. 281 et seq.) It is scarcely necessary to remark to you, sir, that our courts, in construing an act borowed from the British sta- tute-book, constantly adopt the settled construction of the British courts, unless it be most palpaby \\Tong; which can scarcely be pre- dicated of any decision made by the Lord Chancellor Talbot. But that consuls are not public ministers in the sense of the laws 469 Vol. I, p. 406 (WIRT) of nations, (whicli is that of our act,) does not depend on the auth- ority of Lord Talbot alone; for to his own, and authorities cited by him, may be added those of Vattel, lib. 2, ch. 2, § 34; Bynkershock, Traite du Juge Compet, ch. 10, § 5 ; Calliere, De la Maniere de Nego- cier avee les Souverains, 1st part, p. 94, of the London edition of 1750; Bouchard. Theorie de Traites de Commerce, ch. 6, § 1 ; St. Real, Science du Gouvernenient, t. 5, Droit de Gens, ch. 1, § 4 and 11; to ■which may be added the authority of Valin, Ordonnance de la Ma- rine, tom. 1, lib. 1, tit. 9, De Consuls; and Brown's Civil Law, vol. 2, eh. 14. Supported by such authorities, I think it may be safely assumed that a consul is not a public minister within the meaning of our act, wliich is that of the general law of nations. I am aware that some modern authors have treated the question ""Whether a consul be a public minister," as a mere dispute about words. Such are IMr. De Steck and Mr. Borel. And so it may be, in the abstract light in which they have taken up the question; but in relation to our act of congress, the question becomes a material ques- tion of things, and not merely of words; and on the grounds I have stated, I have no doubt that our supreme court would concur with the Lord (410) Chancellor Talbot in the opinion "that a consul is not a public minister, within the spirit and meaning of the statute;" and if so. there is no law within the United States which exempts the con- suls of friendly powers, residing among us, from the jurisdiction of our courts; and none which authorizes the president to prosecute those who call them before those courts to answer civilly. Is our condition, as a nation, singular, in this particular? If I understand General Vives correctly, it is; for I understand him to state it as a doctrine, "sanctioned by the most distinguished public- ists," that those who consider themselves aggrieved by the acts of a consul of a friendly power residing among them, have no right to ap- peal to the courts of the country, and have no redress, except by ap- plying to the government from which such consul derives his auth- ority: in other words, that a consul is not responsible to the courts of the country in which he resides, either civilly or criminally, and can be called to answer to that sovereign alone under whom he holds his appointment. With great respect for the opinion thus advanced, the auth- orities, whom it is usual to consult on such occasions, appear to me to hold a different language; and, so far as the civil responsibility of the consul is concerned, to concur, unanimously, in the opposite doc- trine. There are not wanting highly respectable authorities who main- tain that a consul is subject to the whole extent of the criminal juris- 470 OPINIONS OF ATTORNEYS GENERAL diction of the country in which he resides. Such are Wicquefort, De I'Ambassadeur et de ses Fonctions, lib. 1, § 5; Bynkershock, Tr. du Juge Conip. des Anibassadeurs ch. 10, § 6 ; and Bro\vn, Civil Law, vol. 2, ch. 14. There are others who dispute this point, and who are not at present interested in settling it. The question with which alone we have now to deal, is the responsibility of the consul to the civil jurisdiction of the country; and I think it may be safely af- firmed that there is no author of general notoriety in this country, who maintains the exemption of the consul from this branch of juris- diction ; and no one, who descends to the particular question at all, that does not , on the contrary, admit it. Vattel, in the passage before cited, claims only an exemption from the criminal jurisdiction of the place, (except in the case (411) of enormous crimes;) and even this exemption is so far from being considered by him as an established principle, that he recommends it as the safer course to settle it by treaty. Valin, {qua supra,) having spoken of consuls as the mere crea- tures of commercial arrangement between sovereigns, and as not be- longing at all to the law of nations, gives us a history of their estab- lishment in the Levant and elsewhere, and then proceeds to treat of their privileges thus: "The privileges of consuls depend either on treaties made between the respective states, or on custom, so far as the latter has not been controlled by particular treaties; which cus- tom, according to all appearance, is derived from the capitulations concluded between our kings, those of France, and the Turkish em- perors." It might be fairly objected to any consular claim of privilege de- rived from such a custom as this : 1st. That we are not parties to the treaties from whence the custom avowedly proceeds. 2d. That the privileges of consuls in the Levant {dans les Echelles du Levant) have always been greater than those of consuls who reside in more civilized countries; insomuch that Mr. Calliere, while he admits it as a general truth that consuls are not public ministers within the con- templation of the law of nations, yet says that those who reside dans les Echelles du Levant are regarded as minister. (Maniere de Negocier avec les Souverains, part 1, pages 94-5. London edition of 1750.) It is placing the dortrine on which I insist on the highest ground, therefore, to appeal to the privilege of consuls in the Levant as the standard. As to these privileges, Mr. Valin says the principal are these: 1st, that of not paying any taxes or imposts; 2d, not to be imprisoned for any cause whatever, except to demand justice against them at the port — ''sans a demander justice contr'eux a la Porte;" an exception which (to say the least of it) covers the whole 471 Vol. I, p. 406 (WIRT) ground for which I contend, of their subjection to the tribunals of the country for civil injuries. Mr. De Steck, a most strenous advocate for the rights of consuls, has, in his essay, given us an elaborate synopis of all the stipulations as to consular privileges which are to be found in the commercial treaties of the world since the year 1604, and has there given us the results of this collation; which, so far as the present question is concerned, are: (412) 1st. That consuls are regularly exempt from the criminal jurisdiction of the sovereign and the magistrates of the country where they reside; at least, that they cannot be arrested or put in prison on such charges." 2d. "Quant aux affaires et aux matieres civiles, les consuls sont generale- ment soumis a la jurisdiction des trihunaux du pays et du lieu de leur etablissement et de leur residence. S'ils exercent de negoces, ils so7it traites de la meme faco7i et siir le meme pied que les autres nego- cians." It does not appear, by the statement of the case, whether Mr. Villavaso does or does not carry on trade. If he do, he is, according to this and all the other authorities, to be treated as other merchants are ; but if he do not, he is still, according to Mr. De Steck, subject, in civil matters, to the jurisdiction of the courts of the country. And it is in point to the particular case before us to observe, that the writer foimds this result, among other authorities, on a treaty between Spain, herself, and France — Convention entre la France et I'Espague, con- clue au Paris, le 13 eme Mars, 1769, art. 2. (De Steck, Essai sur les Consuls, sec. 7, p. 62-3: Berlin ed., 1790. De I'Origine et des Fonctions des Consuls, chap. 4, p. 40: St. Petersburg, 1807.) Messrs. Calliere and Borel do not descend to the particular ques- tion. The former merely says that, although not ministers, consuls enjoy some of the privileges of ministers. What they are, he does not specify. Mr. Borel satisfies himself with referring to the treaties be- tween the European princes and the Porte, as well as those with the Regencies of Barbary, as giving the detail of consular privileges ; and (waiving the exceptions already made to this source of informa- tion) it appears by Valin and De Steck, that even in those countries consuls are subject to the civil jurisdiction of the place of their resi- dence. Our constitution and laws, contemplating the responsibility of consuls to the jurisdiction of our courts, have provided the tribunals before which they may sue and be sued or prosecuted; these are the tribunals of the nation, before which alone, in exclusion of the state courts, consuls are bound to answer. I am not aware that the question of the liability of consuls to the jurisdiction of the courts of the country has been brought (413) 472 OPINIONS OF ATTORNEYS GENERAL before any of our national courts, except in the case of the Genoese consul, reported 2 Dallas, 297. In this case, the circuit court of the United States, consisting of Judges Wilson, Iredell, and Peters, de- termined that the defendant, a consul of Genoa, was not privileged from prosecution for a misdemeanor, in virtue of his consular priv- ileges. The result of this examination is, that the president cannot inter- fere in the suit instituted by Mr. Sere against Mr. Villavaso; that if the process has been issued from a court of the state, the consul may abate the suit by pleading to the jurisdiction ; that if it be before a national court, the consul may, if he choose it, bring the question be- fore the supreme court of the nation, for final decision ; and in the meantime, that, in my opinion, consuls residing among us are subject to the civil jurisdiction of our courts; in which respect, so far as we may rely on the authors who have treated of this subject, they are on the same footing here as in other countries. I have the honor to be, most respectfully, your obedient servant, WM. WIRT. To the President of the United States. Vol. II, p. 378 (Berrien) AUTHOEITY AND JUEISDICTION OP CONSULS Consular jurisdiction depends on the general law of nations, subsisting treat- ies between the two governments affected by it, and upon the obligatory force and activity of the rule of reciprocity. French consular jurisdiction in an American port depends on the correct in- terpretation of the treaties subsisting between his Most Christian Majesty and the United States, and which limit it to the exercise of police over French ves- sels and jurisdiction in civil matters in all disputes which may there arise; (279) and provide that such police shall be confined to the interior of the vessel, and shall not interfere with the police of our ports where the vessels shall be. They provide also, that, in cases of crimes and breaches of the peace, the offenders shall be amenable to the judges of the country. The claim of the French envoy, therefore, for the exercise of judicial power by the consul of his government in the port of Savannah, is not warranted by any subsisting treaties, nor by a rule of reciprocity which the executive has power to permit to be exercised. Attorney General's Office, September 8, 1830. Sir: I have received your letter and the accompanying com- mimication of M. Roux de Rochelle, envoy extraordinary and minis- ter plenipotentiary of his Most Christian Majesty near this govern- ment, claiming for the consuls of his IMajesty residing in the United 473 Vol. II, p. 378 (BERRIEN) States exclusive jurisdiction over offenses committed on board of the merchant vessels of France by French subjects, while such vessels are lying in our ports, in all cases where the tranquillity of the port is not disturbed, and the aid of the local authorities is not invoked by the consul. M. Roux de Rochelle calls your attention to a partic- ular case which has recently occured in the port of Savannah, in which he supposes the consular jurisdiction has been invaded by the interposition of the local judiciary'; and asks you, after giving an attentive examination to the claim, to take such measures as may appear proper to avoid a recurrence of similar conflicts of juris- diction. In referring this communication to me, you request my opinion — 1. As to the validity of the claim asserted by M. Roux de Roch- elle ; and, 2. If valid, what steps it would be proper for the department to take towards satisfying it, and preventing the recurrence of similar complaints. I proceed to state to you the result of my reflections on the first of these questions. The conclusion to which these have conducted me >vill dispense with the necessity of considering the remaining in- quiry'. The claim of consular jurisdiction, which we are examining, must depend on the general law of nations, on treaties subsisting between the United States and his ^lost Christian Ma- (380) jesty, or on the activity and obligatory force of the rule of reciprocity which is urged in its support. Each of these shall be briefly considered. The origin of the appointment of consuls is tracted to the neces- sity for extraordinary protection of certain branches of commerce formerly carried on with barbarous and uncivilized nations. Among civilized states, commercial agents of this character were more recently introduced. Even at this day, the custom of receiving them cannot, it is said by a late writer, be looked upon as universally established ; and their rights, whore they are admitted, differ very widely in dif- ferent states. Those who are sent out of Europe exercise a pretty extensive jurisdiction over the subjects of their sovereign. In Eu- rope, there are some places where they exert a civil jurisdiction, more or less limited, over their fellow-subjects residing there. In others, they have only a voluntary jurisdiction; while in others, their func- tions are limited to watch over the commercial interests of the state, particularly the observation of treaties of commerce, and to assist with their advice and interposition those of their nation whose com- mercial pursuits have led them to the place of their consulate. In the Cours de Droit Commercial, by J. N. Pardessus, it is said 474 OPINIONS OF ATTORNEYS GENERAL that a sovereign cannot invest a consul with judicial power, even over his own subjects in a foreign country, so as in that country to enforce the judgment according to the municipal law ; but, that, nevertheless, the decision of a French consul in England, in questions between French subjects, will have effect in France. This, however, is in civil cases ; for the same writer admits that, in all Christian countries, as it were by common consent, with reference to the administration of penal laws, the prosecution of crimes against foreigners is left en- tirely to the municipal tribunal of the place where they are committed. He adds, that a French consul cannot have criminal jurisdiction in a foreign country, unless it is expressly given ; and that there is no in- stance of such a power in any christian country. In a Treatise on the Laws of Commerce, &c., by Mr. Chitty, he remarks, with precise reference to such a case as the one under consid- eration, that it is said to be the indispensable duty (381) of the con- sul to imprison disorderly seamen on the complaint of their mas- ters; yet he should be cautious how he punishes British seamen, or masters of ships, on their mutual complaint against each other, as it may subject him to an action for false imprisonment. According to the same writer, foreign consuls have no judicial power in Eng- land. From the Essai sur les Consuls, par M. de Steck, I extract the following: "II faut cependant observer, que le pouvoir et les droits des consuls ne sont pas dans tons les pays de la meme etendue. Les traites les modifient et les limitent differemment. Pour parvenir a fixer les principes en cette matiere, il faut faciliter, parcourir, con- suiter les traites de commerce, en comparer les stipulations, en faire un precis, en tirer, et en inferer des consequences et des resultats, et asseoir sur ces conslusions les idees et les principes." I think, then, it must be sufficiently obvious that the principals of international law, as they are recognized in Europe, afford no warrant for the exercise of judicial power by consuls ; and that the rights and duties of these functionaries depend, both for their authority and ex- tent, upon the treaties subsisting between the governments respectively interchanging this species of commercial agents. Turning to the treaties between the United States and France, I find that the 29th article of that of 1778 is in these words : "The two contracting parties grant mutually the privilege of having, each in the ports of the other, consuls, vice-consuls, agents, and commissaries whose functions shall be regulated by a particular agreement." Here, as between the United States and the French government, is a complete recognization of the principle to which we have just referred — that consuls exist by force of treaties, which, 475 Vol. II, p. 378 (BERRIEN) consequently, regulate their functions. The commercial convention which was subsequently, in 1788, entered into between the two powers, had for its object to define and establish the fimctions and privileges of their respective consuls and vice-consuls. The eighth article of that convention secured to these functionaries the right to "exercise police over all the vessels of their respective nations," and "jurisdic- tion in civil matters, in all disputes which may there arise." It was provided that this exercise of police (382) should, "be confined to the interior of the vessels," and that this should not interfere "with the police of the ports where the said vessels shall be." The tenth arti- cle declares that "where the respective subjects or citizens shall have committed any crime or breach of the peace, they shall be amendable to the judges of the countrj\" Even under that convention, then, the case which has given rise to the remonstrance of M. Roux de Rochelle would have been beyond the jurisdiction of the consul, and punishable only in the judicial tri- bunals of the country. But this compact was limited, by its own provisions, to twelve years after its date, and was specifically annulled by an act of congress passed the 7th of July, 1798. The tenth article of the convention of 1800, between the United States and the French republic, authorized the reciprocal appointment of commercial agents, and stipulated that they should respectively enjoy the rights and pre- rogatives of the similar agents of the most favored nations. This convention, however, which annulled that of 1788, (if that had not been effectually done by the act before referred to,) was itself limited to eight years, and has been succeeded by the commercial convention of June, 1822, the 6th article of which merely gives to the consuls and vice-consuls of the two nations, respectively, the right of arresting seamen who shall have deserted ; and, for that purpose, requires them to address themselves to the courts, judges, and officers competent. From this brief sketch of the diplomatic relations between the Tnited States and his Most Christian Majesty, it will be seen that the consular claim to judicial power is not warranted by subsisting treaties between the two governments. M. Roux de Rochelle, never- theless, informs you that the rule which allows it "is applied in France to the ships of the United States, as well as to those of other nations, in accordance with the wish of the American consuls them- selves," which gives the French government, as he urges, "the right to enjoy an exact reciprocity in the ports of the Union." From what is said by Mr. Chitty, I should infer that, if applied to British consuls exercising their functions in France, it cannot be re- ciprocated to French consuls residing in England. But, however this may be, in relation to the claim of (383) the consuls of France, as 476 OPINIONS OF ATTORNEYS GENERAL derived from the obligation of this government to give effect to the rule of reciprocity, I have to remark, that, in the United States, the functions of its judicial officers cannot be interferred with by the executive power. Subjects which have been committed to the juris- diction of the judicial department by the legislation of the Union, must remain so subject until withdrawn by exercise of similar auth- ority, or, where the rights of foreign governments are concerned, by an act of the treaty-making power. However desirable, therefore, it may be to give operation to the rule of reciprocity, the power which is necessary to effect such an object does not belong to the executive. The supreme judiciary of the Union, in the case of the Nereide, dis- claimed the right to call this rule into activity, and to apply it to a case then properly subjected to their jurisdiction; referring to the legislature as the only source of such an authority. The executive department of the government is equally powerless in this regard. It will be obvious to you, from the preceding remarks, that the opinion which I entertain is adverse to the claim of consular juris- diction asserted by M. Roux de Rochelle; and this dispenses ^vith the necessity of replying to your remaining inquiry. JN. MacPHERSON BERRIEN. To D. Brent, Esq., Department of State. Vol. II. p. 521 (Taney) PEOVISIONS FOE WIDOWS OF CONSULS WHO DIE IN OFFICE The executive will pay to the widow of a consul, having a salary, who has died in office abroad, upon her return, the amount which it has been customary to pay to consuls themselves upon their recall, viz: his salary for three months. The funeral expenses of the deceased consul, and the incidental and con- tingent expenses of the consulate after his death, are a fair item of charge on the fund for contingent expenses of foreign intercourse. And where the son of the deceased consul remains at the port and dis- charges duties of consul which are recognized by the government, he may receive the compensation fixed by law for such services. Such was the practice of the government in the cases of Messrs. Folsom, Heap, Simpson, and Hodgson. Attorney General's Office, May 31, 1832. Sir : The claim of Mrs. Coxe and her son, upon which you have called for my opinion, presents, in one respect, a new case. Mr. Coxe, -it appears, is the first of our consuls to the Barbary States who has died while in office, and his widow and family have been obliged to return home at their own expense; and Mrs. Coxe presents a claim against the government for these expenses. 477 Vol. II, p. 521 (TANEY) Under the act of May 1, 1810, there can be no outfit allowed to a consul, nor is there any authority given to pay his expenses home; but, by practice of the government, it has been (522) usual to con- sider him in office, and therefore entitled to his salary, after leaving his station, for a time sufficient to enable him to return home. And as it was desirable that some certain period of time should be fixed on, in order to avoid the necessity of a particular examination in every case, three months appear to have been adopted as a reasonable time in such cases, and accounts have, I understand, been settled accord- ingly. If, therefore, Mr. Coxe had lived to return with his family, he would have been entitled to three months' pay after leaving his sta- tion. This interpretation of the law of May 1, 1810, appears to be a reasonable and just one. His salary goes on while the consul is per- forming his outward voyage, and there seems to be no ground for denying it to him on his return. He is, however, during that period of time, rendering no service ; and the allowance of the salary for three months after leaving his station is evidently made to enable him to return to his own country ; and, as his term of office is construed to endure for that purpose, although he is not discharging any of its functions, it would seem that the same principle may with equal pro- priety be applied to the case of his widow; and three months' salary, from the time of his death, may be paid to her, in order to enable her to return with her family. This, I think, is not only an equitable con- struction of the law, but one which, from the nature of the public ser- vice in which a diplomatic agent is engaged, is called for by the principles of justice; and it would be a severe and harsh construction of it to deny, after his death, to his Avidow and family, those means of coming again to their home which would have been offered to them by the public if he had lived. But I do not think more can be allowed for their expenses than the usual salary for three months. The funeral expenses appear to me to be a fair item of charge on the fund for the contingent expenses of foreign intercourse. The act of May 1, 1810, gives the consul at Tripoli two thousand dollars per annum, as a compensation "for his personal expenses and ser- vices," but does not forbid the allowance of expenses other than per- sonal. And, indeed, the language used in the law necessarily im- plies that other expenses are contemplated, and are to be allowed. And as the consuls to the Bar-(523)bary States are diplomatic agents of this government, they are entitled to be repaid, out of the approp- riation to defray the contingent expenses of foreign intercourse, such incidental expenses, as are usually allowed in the case of other diplo- matic agents ; and,, es the f urjeral expenses of such officers, when they 478 OPINIONS OF ATTORNEYS GENERAL have died abroad, have been borne by the public, I see no reason why it should not be done in the case of Mr, Coxe. Indeed, the honor and dignity of the government require that the funeral of its representa- tive in a foreign country should be decently and properly attended to. The incidental and contingent expenses of the consulate which occurred after the death of Mr. Coxe, if properly vouched, ought, I think, also to be paid by the government as it is a part of the expenses of foreign intercourse; and, although the money was not paid by a consul regularly appointed, yet, if it were paid by one who was act- ing in that character and discharging its duties, and if the expenses were proper to be incurred, and were incurred for the public service, they ought to be repaid, and appear to me to be a lawful charge on the contingent fund above mentioned. The salary claimed by Charles J. Coxe, during the time he acted as consul, may, I think, be legally paid to him as salary. The law of May 1, 1810, gives the salary to the consul for his personal ser- vice and expenses. If, after the death of Mr. Coxe, his son performed the services and incurred the expenses of a residence there, and his acts have been recognized by the government, I do not perceive why he should not receive the compensation fixed by law for such services. He was de facto consul for the time, and the public received the benefit. What services he performed, or had to perform, I have not the means of knowing; and the opinion I express is founded on the presumption that he rendered faithfully whatever services a consul duly appointed would have rendered for the time, and that the govern- ment have adopted his acts in that character. The practice of the government sanctions this opinion, as appears by the papers before me; and in several instances similar to this, since the law of 1810, the salary has been paid. I refer to the cases of Mr. Folsom, in 1818 and 1819; Mr. Heap, in 1823 and 1824; Mr. Simpson, in 1820 and 1821 ; and Mr. Hodgson, in 1819. (524) The public interest requires that the duties of the office should be discharged by some one; and where, upon the death of the consul, a person who is in possession of the papers of the consulate, enters on the discharge of its duties, and fulfils them to the satis- faction of the government, I do not perceive why he should not be recognized as consul for the time he acted as such, and performed the services to the public ; and, if he is so recognized, the law of congress entitles him to his salary. R. B. TANEY. To the President of the United States. 479 Vol. II, p. 725 (BUTLER) Vol. II. p. 725 (Butler) IMMUNITIES OF FOREIGN CONSULS Foreign consuls in the United States are entitled to no immunities beyond those enjoyed by foreigners coming to this country in a private capacity, except that of being sued and prosecuted exclusively in the federal courts. If any foreign consul shall be guilty of any illegal or improper conduct, he will be liable to the revocation of his exequatur and to be punished according to our laws; or he may be sent back to his own country, at the discretion of our government. Attorney General's Office, September 16, 1835. Sir: In your communication of the 20th ultimo, you inform me that you have been instructed by the president to request my opinion as to the immunities of foreign consuls in the United States under the laws of nations and the constitution and laws of the United States. After a careful consideration of this subject, I am of opinion that foreign consuls in the United States are entitled to no immunities beyond those enjoyed by persons coming to this country in a private capacity from foreign nations, except that of being sued and pros- ecuted exclusively in the United States courts, under the jurisdiction conferred on them by the constitution and laws of the United States. The question whether consuls are entitled to the privileges belonging to public ministers, has been much discussed by writers on the law of nations and in the English and American courts of justice. The statements of Chancellor Kent, in his recent Commentaries on (726) American Law. (vol. 1, sec. 2,) are fully supported by the text books and decisions to which he refers; and I therefore take the liberty of quoting them, as expressing my own opinion on this point. "If any consul be guilty of illegal or improper conduct, he is liable to have his exequatur (or a written recognition of his character) revoked, and to be punished according to the laws of the country in which he is consul ; or he may be sent back to his own country, at the di.scretion of the government which he has offended. "A con.sul is not such a public minister as to be entitled to the privileges appertaining to that character; nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe conduct; but he is not entitled to the jus gentium. Vattel thinks that his functions require that he should be independent of the ordinary criminal jurisdiction of the country; and that he ought not to be molested, unless he violate the law of nations by some enormous crime; and that, if guilty of any crime, he ought to be sent home to be punished. But no such immunities have been conferred on consuls by the modem practice of nations j and it^ 480 OPINIONS OP ATTORNEYS GENERAL may be considered as settled law, that consuls do not enjoy the pro- tection of the laws of nations any more than any other persons who enter the country under a safe conduct. In civil and criminal cases, they are equally subject to the laws of the country in which they reside. The same doctrine, declared by the public jurists, has been frequently laid down in the English and American courts of justice." B. F. BUTLER. To the Secretary of State. Vol. III. p. 405 (Grundy) SEIZUEE FOE SUSPECTED INTENTION TO PROSECUTE SLAVE TRADE Attorney General's Office, January 12, 1839. (406) (Extract) Sir: In this case, it appears that Captain Howell, commander of the brig "Thomas, of Havana," entered the port of Havana, and immediately reported to Mr. Trist, United States consul at that place. The papers of the vessel presented by him to the consul were evidently fradulent, and not such as, under the laws of congress, would entitle his vessel to that protection which is due to every vessel which in truth belongs to the United States, and sailing lawfully under their flag. Under these circumstances, Mr. Trist informed Captain McKenney, commander of the Ontario, a public vessel of the United States, of these facts; and advised him to seize and detain the vessel until this government could be advised of the facts, and direct what course should be adopted. The advice of Mr. Trist was pursued, and Captain McKenney took possession of the brig Thomas, while in the port of Havana. The vessel was of Spanish build, and was manned entirely (the captain excepted) by foreigners ; and the number of men on board was much greater than is usually employed in navigating a vessel of the size of the brig Thomas. These were circumstances, in addition to the fraudulent character of the papers, calculated to excite strong suspicions that the vessel was destined for some unlawful enterprise, and probably for the slave trade. A correspondence ensued between the Captain General of Cuba and Mr. Trist, which terminated in a friendly disposition of the ques- tion, whether the seizure of the vessel in the port of Havana was a violation of the jurisdictional rights of Spain. Upon that point, now adjusted and settled, I wish to be understood as expressing no opinion. Upon another point which presents itself it is proper that I should say, that, let the question discussed between the Captain General of Cuba and the consul of the United States be as it may, so far as relates 481 Vol. Ill, p. 405 (GRUNDY) to Captain Howell and his vessel tlie proceedings were lawful, and Captain Howell has no cause of complaint. Suppose the Spanish authorities had given their consent to the seizure before it was made; then, what legal rights would have been violated? None, that I can perceive, (407) more than if the seizure had been made on the high seas. In this case, the consent of the Spanish authorities was not obtained before the seizure ; but this could only make the act wrong- ful, if the captain general was correct in his view of the public law, so far as the Spanish authorities and Spanish rights were concerned. It would not make the seizure wrongful, so far as relates to Captain Howell and his vessel. If an officer, in executing civil process, shall break open the house of the defendant and arrest him, the officer is subject to an action and to damages for breaking the house; but the arrest is good. I refrain from any argument showing the inapplicability of the principles of the public law in reference to the protection of vessels in the ports or waters of a friendly power, when that protection is claimed by a vessel of the United States against their public vessels, acting in conformity to, and in connection of, the laws of congress. I am, sir, &c., &c., FELIX GRUNDY. To the Secretary of State. Vol. III. p. 532 (Gilpin) VERIFICATION IN FOREIGN COUNTRIES OF APPLICATIONS FOR PATENTS FOR INVENTIONS Verifications and depositions in foreign countries to be made under the pro- vieions of the sixth section of the act of July 4, 1836, before patents can issue, should not be made before consuls, but before competent magistrates of the coun- try where they shall be taken, and authenticated by the consul. Any abrogation of oaths in the patent laws of England will not affect the question here; all conditions requisite to a patent in this country must be com- plied with according to the laws of congress. Attorney General's Office, May 12, 1840. Sir : I had the honor to receive your letter of the 4th inst, en- closing a communication from the Commissioner of Patents, and asking whether, in my opinion, the oath required to be taken by an applicant, under the provisions of the sixth section of the act of the 4th of July, 1836, before a patent can be issued to him, may be ad- ministered by a consul of the United States, and particularly the consul who is also an agent of claims at Paris. 482 OPINIONS OF ATTORNEYS GENERAL In reply, I have to state that I am aware of no law which con- fers on consuls the general power of administering oaths, though they are authorized to authenticate depositions made in foreign countries. I am, therefore, of the opinion that the oath should not be adminis- tered by the consul, but by a competent magistrate of the country where it is taken ; and that the deposition so made should be verified by the official certificate or authentication of the consul. The Commissioner of Patents also inquires whether the provision of the act of the 4th of July, 1836, above referred to, is "sufficiently complied with in England, by a solemn declaration" pursuant to the act of 6 William IV, entitled ' ' An act to repeal an act of the present session of parliament, entitled 'An act for the more effectual aboli- tion of oaths and affirmations taken and made in the various depart- ments of the state, and to substitute declarations in lieu thereof, and for the more entire suppression of voluntary and extrajudicial oaths and affidavits; and to make other provisions for the abolition of un- necessary oaths." I have not seen the British statute here referred to, but presume, from its title, that it substitutes, in cer- (533) tain eases in England, a declaration for the oath or affirmation previously required by the laws of that country. I am of opinion that this change cannot sanction any deviation from the requisitions of the act of congress above referred to, and that the question proposed must be answered in the negative. H. D. GILPIN. To the Secretary of War. Vol. III. p. 683 (Legare) AID TO DISTEESSED SEAMEN Seamen on board vessels of war are not entitled to pecuniary assistance from consuls abroad, under the act of 28th February, 1803. The moneys in the hands of the secretary of state were raised from the wages of merchant seamen only, and should be applied only for the relief of that class of seamen which have contributed to the fund. Office of the Attorney General, October 27, 1841. Sir: In compliance with the request contained in your note of the 25th instant, that I would give you my opinion on the construc- tion of the 4th section of the act of congress of February 28, 1803, in reference to the rendering pecuniary assistance by the consuls abroad to distressed seamen left at their consulates by United States vessels of war, I have the honor to state that, after a conversation with the Fifth Auditor as to the practice of the department, and on collating 483 Vol. Ill, p. 683 (LEGARE) carefully all the acts having reference to the subject in question, 1 have been convinced, notwithstanding a strong first impression to the contrary', that the fund in the hand of the secretary of state is appropriated to providing for destitute merchant seamen only. The act of 1803 must be read with the act of 1792, to which it is merely supplementary', and with the act of 1814, (chap. 161, 2 Story, 1432.) The result is, that the fund which your department is auth- orized to dispose of is charged with a special trust, as it is raised in a special way — by deductions out of the wages of merchant seamen. The public service is subjected to rules of its own ; and the adminis- tration of it. throughout all its interests, is committed to the secretary of the na\^'. The words of the 4th section of the act of 1803 are, it is true, very general and comprehensive, but they must be interpreted according to the subject matter; and that limits and qualifies them as above. I have the honor to be, sir, your obedient servant, H. S. LEGARE. Fletcher Webster, Esq., Acting Secretary of State. Vol. IV. p. 185 (Nelson) OBLIGATION OF SHIP-MASTERS TO BRING HOME DESTITUTE SEAMEN The act of 1803, requiring masters and commanders of vessels belonging to citizens of the United States, and bound to some port of the same, to take, at the request of the consul, destitute seamen on board, and to transport them to the port of the United States to which such vessels may be bound, is limited to such vessels as shall be bound from the port where the request is made, direct to some port of the United States. To require all American vessels in foreign ports, whether bound directly to some port of the United States or not, to receive destitute seamen, would be in many cases very oppressive upon masters and owners. Attorney General's Office, July 10, 1843. Sir: I have carefuly examined and considered the provisions of the act of the 28th of February, 1803, and the letter of the United States consul at Valparaiso, respecting the refusal of Captain Theo- dore Perrj', master of the brig "Phillip Hone," to receive on board of said bring two destitute American seamen to be conveyed to the United States, transmitted to me on the 8th instant, upon which you desire my opinion whether, first, it is the intention of the law that masters of vessels should be required to transport destitute American seamen, as provided by said act, only when such vessels are bound di- rect to some port of the United States? and, secondly, whether, under 484 OPINIONS OF ATTORNEYS GENERAL circumstances such as those attending the refusal of Captain Perry, they are not under an obligation to comply with the consul's request? The 4th section of the act of 1803 was designed to supply the 7th section of the act of 1792, ch. 94, to provide a compensation to masters who should be required to perform the duties it imposes, which the act of 1792 did not afford, and to fortify (186) the sanction by which it was to be enforced, by an increase of the penalty demanded for its violation. The only other act of congress relating to the subject is that of 1811, ch, 95, which provides for the allowance by the comptrol- ler in certain cases of additional compensation, I do not find that these provisions have been at any time the sub- ject of judicial examination; the answers to your inquiries must, therefore, be sought in the terms of the laws referred to. These I think susceptible of but one interpretation. The language of the act of 1803, borrowed from that of 1792, is, that all masters and command" ers of vessels belonging to citizens of the United States, and bound to some port of the same, are required and enjoined to take such mariners or seamen on board of their ships or vessels at the request of the said consuls, &c., and to transport them to the port of the United States to which such ships or vessels may be bound, &c. The act does not impose the duty of transportation upon every American vessel found in a foreign port. For obvious reasons, such a requirement might, under many circumstances, operate the most oppressive in- convenience upon masters and owners. But the provision is limited in its application to such vessels found in a foreign port as shall be- long to citizens of the United States, and as shall be bound to some port thereof. Bound whence? From the port at which such vessel may be found — not from a port to which she may be first bound — and thence to some port of the United States. Such a construction would apply the provisions of the act to every vessel belonging to citizens of the United States whereever bound, if destined ultimately to return home. I am of the opinion, therefore, that the act of 1803 does not re- quire that masters of vessels should transport destitute American seamen, except in eases in which such vessels are bound direct to some port of the United States. The second inquiry, as to the particular case of Captain Perry and the extent of his obligations, it is not easy satisfactorily to answer, because of the defect in the information upon which it is suggested. The circumstances connected with his refusal are so generally stated, as to render it difficult to determine whether the voyage to Coquimbo was merely colorable or (187) contemplated in good faith, and whether it was an intermediate port at which the vessel was to touch 485 Vol. IV, p. 185 (NELSON) or call, or a port of bona fide destination. It is quite clear that in the one case the duty of the master would have been to transport the seamen ; in the other, if my answer to your first question be right, the law imposed on him no such obligation. Under all the circumstances of the case, I would respectfully suggest that the transaction offers an occasion which may be advan- tageously embraced by an appeal to the judicial department of the government to settle the construction of a law, upon the rigid enforce- ment of which many and important interests depend. I have the honor to be, sir, your obedient servant, JOHN NELSON. Hon. A. P. Upshur, Secretary of State. Vol. IV. p. 390 (Mason) SHIP-MASTERS ABROAD— WHEN TO DEPOSIT REGISTERS WITH CONSUL The 2d section of the act of 28th February, 1803, does not require the papers of an American vessel in a foreign port to be delivered to the consul, except in cases where it is necessary to make an entry at the custom-house. A requisition of a deposit of papers, in all cases of arrival where, by the local laws, an entry is not necessary, and where there is no trading or purpose to trade, might add to consular emoluments, but would be embarrassing to the in- terests of navigation. Attorney General's Office, June 11, 1845. Sir: I have had the honor to receive your communication of the 16th April last, with a letter from the United States consul at Nassau, asking my opinion on the question presented by the consul. He states that his instructions to his agents have been to this effect: "That any voluntary arrival at their ports obliges the master of the vessel, upon his arrival, to deposit his register, whether such arrival be for advices or not, or whether the vessel comes to an entry or not, and without respect to her remaining twenty-four hours, or any de- finite time or not." And the question presented for consideration is, are those instructions warranted by law? By the 2d section of the act of 28th February, 1803, it is made the duty of every master of a vessel belonging to citizens of the United States, who shall sail from any port of the United States, on his arrival at a foreign port, to deposit his register, sea-letter, or Mediterranean passport, with the consul, vice-consul, or commercial agent, if any there be at such port. In case of refu.sal or neglect, he is subjected to a penalty of five hun- dred dollars. And the same section makes it the duty of such consul, vice-consul, or commercial agent, on such master or commander pro- 486 OPINIONS OF ATTORNEYS GENERAL ducing to him a clearance from the proper officer of the port where his ship or vessel may be, to deliver to the said master or commander all of his said papers. Taking the whole section together, it is very obvious that con- gress required the papers of an American vessel in a foreign port to be delivered to the consul only where it was necessary to make an entry at the custom house. It is on the master's producing a clear- ance, that the consul is to return from him his pa- (391) pers; and there can be no clearance where there is no entry. If an American vessel arrive at her port of discharge, or for any reason other than the purpose of trading with the whole or portion of her cargo, she shall remain so long as, by the law of the country, to require it, she must enter at the customhouse of such port; and, in all such cases, the master must deposit his register. But the law does not extend the duty beyond this. A requisition of a deposit of papers, in all cases of arrival where, by the local laws, an entry is not necessary, and where there is no trading or purpose to trade, might add to con- sular emoluments, but would prove extremely embarrassing to the navigating interest. The object of the law is to compel masters of vessels belonging to American owners, sailing from American ports, to respect our own laws, and those of the foreign countries to whose ports they may go for the purpose of trade; and this object is at- tained by requiring them to exhibit the evidences of their being law- ful traders to our consuls at the ports where they have to enter. Beyond this, neither the law nor good policy requires that their duty shall extend. I have the honor to be, respectfully, sir, your obedient servant, J. Y. MASON. Hon. James Buchanan, Secretary of State. Vol. V. p. 161 (Johnson) WHEN SHIP-MASTEES AEE EEQUIEED TO DEPOSIT EEGISTEES WITH CONSULS Masters of American vessels entering foreign ports where there shall be an American consul, and remaining so long as that, by the local regulations, they are required to enter, and afterwards to clear in regular form, are required to de- posit their registers, &c., with such consul, irrespective of the purpose for which the port shall have been entered. (See opinion on this subject delivered by Attorney General Mason on the 11th of June, 1845.) Attorney General's Office, September 26, 1849. Sir: The question you have submitted to this office, upon the letter of F. H. Whitmore, Esq., of New Haven, Connecticut, of the 487 Vol. V, p. 161 (JOHNSON) 10th September, 1849, "respecting the demand made by the United States commercial agent at St. Thomas, in all cases of the arrival at that port of an American vessel, whether business is or is not done by her. that the register, &c., be deposited with him," I have con- sidered. The legality of the demand depends upon the proper construction of the 2d section of the act of congress of the 28th February, 1803, "supplementary to the act concerning con- (162) suls and vice-con- suls, and for the further protection of American seamen." (2 statutes at large, 203.) By the words of the first part of the section, the master of an American vessel sailing from a port in the United States is required to deposit "his register, sea-letter, and Mediterranean passport," "upon his arrival at a foreign port," with the American consul, &c,, if there be one at such port. The duty, regarding this part of the section, only exists upon arrival, without reference to its object, and whether it be voluntary and for business, or otherwise. But the sub- sequent part qualifies, I think, the general words of the first. It is in the provision that the consul, &c., on the master's "producing a clearance from the proper officer of the port where his ship or vessel may be," shall deliver to him "all of his said papers." Construing the two classes together, I think the true meaning of the whole is, that there is to be no deposit of the papers, upon an arrival, un- less it be an arrival with a view to entry, or where, hy the local law, an entry is required. Where either exists, my opinion is, the deposit with the consul, &c., is to be made, and, of course, that it is the duty of the consul to demand it. It will be seen, I think, that, in this view of the act, I but concur in the opinion to which you refer, of Mr. Attorney General Mason, of the 11th of June, 1845. After quoting the section of the act in question, he says: "Tak- ing the whole together, it is very obvious that congress required the papers, &c., to be delivered to the consul 07ily when it was necessary to make an entry at the custom-house;" and, therefore, "if an Amer- ican vessel arrive at her port of discharge, or, for any reason other than the purpose of trading with the whole or portion of the cargo, she shall remain so long as, hy the law of the country," &c., "she must enter at the custom-house of such port," and the deposit must be made. Interpreting the section, as I do, to require the deposit only when an entry is to be made, he makes it the duty of the master, as I do, to df posit, in case of entry in fact, without regard to the reason or object of its being made. The motive for the deposit is, I think, 488 OPINIONS OF ATTORNEYS GENERAL the same in all cases of actual (163) entry, and the trouble and duty of the consul, &c.,the same. He is in both cases to take charge of the vessel's papers, and to hold them imtil she is again cleared; and, for the trouble of receiving, preserving, and delivering them, (of each of which acts he is to give a certificate under seal,) he is entitled to charge two dollars. (See chapter 8, section 7, of General Instruc- tions to Consuls, of the 6th June, 1849.) The result, then, to which I come, is this: that the commercial agent at St. Thomas, in the case of all American vessels arriving there, and remaining so long as, by the local regulation, to be obliged to enter and afterward to clear, is entitled, and it is his duty to de- mand the surrender of their papers, imder the act of 1803, no matter what may be the motive of the entry, whether business or not. I have the honor to be, very respectfully, sir, your obedient servant, REVERDY JOHNSON. Mon. John M. Clayton, Secretary of State. Vol. VI, p. 617 (Gushing) POWEKS OF CONSULS— LIABILITIES OF THE UNITED STATES Consuls have no authority to order the sale of a ship in a foreign port, either on complaint of the crew or otherwise. If, on such sale, a consul retains money for the payment of seamen's wages, he acts at his own peril, and is responsible to the owners. The United States are not responsible in damages for moneys illegally re- ceived by consuls, or for any other act of malfeasance of theirs in office. Attorney General's Office, July 24, 1854. Sir: Your letter of the 12th inst. calls for my opinion of the acts of February 28th, 1803, and July 20th, 1840, in relation to the powers and the duties of consuls of the United States, as applied to the case of the bark "Serene," sold by the order of the consul at Acapulco. This act of February, 1803, (ii Stat, at Large, p. 203, chap. 9, sec. 3,) makes it the duty of the master or commander of a ship or vessel belonging to a citizen of the United States, wliich "shall be sold in a foreign country, and her company discharged, to produce to the consul or vice consul the list of his ship's company, certified as aforesaid, and to pay to such consul or vice- consul, for every seaman or (618) mariner discharged, being on such list as a citizen of the United States, three months' pay, over and above the wages which may then be due to such mariner or sea- man, two-thirds thereof to be paid by such consul to each 489 Vol. VI, p. 617 (GUSHING) seaman or mariner so discharged, when, etc., the other re- maining third to be retained for the purpose of creating a fund for the payment of the passages of seamen or mariners, citizens of the United States, who may be desirous of returning to the United States, and for the maintenance of American seamen, who may be destitute, and may be in such foreign port," — the same to be accounted for every six months with the secretary of the treasury. The act of July 20th, 1840, entitled ''An act in addition to the several acts regulating the shipment and discharge of seamen and the duties of consuls," (Vol. v of Stat, at Large, p. 396, chap. 48, article 12th,) provides, "If the first officer, or any officer, and a majority of the crew of any vessel shall make complaint in writing that she is in unsuitable condition to go to sea, because she is leaky or insufficient- ly supplied with sails, etc., or the crew is insufficient to man her, or that her provisions are not or have not been during the voyage, suf- ficient and wholesome, thereupon the consul or commercial agent, in any of these or like cases, shall appoint two disinterested, compe- tent, practical men, acquainted with maritime affairs, to examine into the causes of complaint, who shall in their report state what defects and deficiences, if any, they find to be well founded, as well as what ought to be done, in their judgment, to put the vessel in order for the continuance of the voyage." Art. 13th gives the inspectors full power to examine the vessel, and also to hear and receive any other proofs, and the consul, upon view of the report of the inspectors so appointed, may approve the whole, or any part of the report. If he approve he shall so certify; if he dissent, he shall certify his reasons for so dissenting. Art. 14. ' ' The inspectors in their report shall also state whether, in their opinion, the vessel was sent to sea unsuitably provided in any important or essential particular, by neglect or design, or through mi.stake or accident, and in case it was by neglect or design, and the consul or other commercial agent ap- (619) proved of such finding, he shall discharge such of the crew as require it, each of whom shall be entitled to three months' pay in addition to his wages to the time of the discharge; but if, in the opinion of the inspectors, the de- ficiences found to exist have been the result of mistake or accident, and could not in the exercise of ordinary care have been Imo^vn and provided against before the sailing of the vessel, and the master shall, in a reasonable time, remove or remedy the causes of complaint, then the crew shall remain and discharge their duty; otherwise they shall, upon their request, be discharged, and receive each one month's wages in addition to the pay up to the time of discharge." By the papers accompanying your letter^ it appears that the 490 OPINIONS OF ATTORNEYS GENERAL American bark "Serene," Phineas Windsor, master, of 332 44-95 tons burthen, sailed from San Francisco, in the state of California, on the 23d of March, 1854, for San Bias, in the republic of Mexico, laden with a cargo of quicksilver, thence, after discharging her cargo, she sailed to Ypala, in that republic, and there took in a full cargo of Brazil wood, and thence cleared and sailed on the 2d of May, bound for Valparaiso, in Chile. The vessel at sea sprang a leak on the 6th of May, and put into Aeapulco in distress. There, the master went before the American consul, Charles L. Denman, and made declaration and protest of all the circumstances; which protest and declaration was also verified by A. D. Stagg, first officer, T. W. Pinkham, carpenter, Charles Foy, Thomas Tilson, and John Chalet, seamen. On the 12th of May, the first and second mates, the carpenter, and said three seamen, presented to the consul their petition in writ- ing, requesting him to appoint a survey and examination of said ves- sel, and to take such action thereon as is provided by law. The captain deposed that the said petitioners composed two-thirds of the officers and crew of the said vessel the "Serene." Thereupon the consul appointed C. Hayward, a sea captain, Thomas Campbell, a ship carpenter, and Lorenzo Pratt, a pilot, to examine into the condition of said vessel, etc., and make report. They reported that after discharging the cargo, the leak was (620) below the water line, the result of heavy seas, without fault of the officers or crew ; that the vessel must be stripped, hove do\Mi, and her copper taken off, in order to [make] a thorough examination and repair ; that even if she could be repaired in the port of Aeapulco, the expense of the delay would exceed the value of the vessel; but that she could not be repaired in that port. And the said examiners and inspectors advised that the vessel be sold for the benefit of all con- cerned, and that measures be taken for the safety of the cargo: all which was sworn before the consul, who certified his approval of the report on the 20th of May, 1854. The vessel was accordingly sold at auction on the 22d of May, 1854, hy order of the consul, and pro- duced the sum of $1332.68. The vessel being so sold, in this foreign port, the consul paid out of the proceeds to the crew, (whose wages were stated at so much per month in the shipping articles,) viz: To the first and second mates, the carpenter, and the five seamen, who composed the crew, the sum of $286.77, for their wages up to the 22d of May, 1854, — and took their receipts, severally, — to the master, as paid by the consul ; — and the consul furthermore gave his receipt to the master for the mm of $495, for three months' wages to the first and second mates, 491 Vol. VI, p. 617 (GUSHING) to the carpenter, and to seaman Chalet, they being the only Amer- ican citizens of the ship's roll; besides which the consul paid the various expenses of the survey of the vessel and sale in the port of Acapulco, amoimting. in wages and expenses, to the full proceeds of the sale. There was insurance upon the vessel, but none on the cargo. The assurers refuse to pay the wages, because, they say, no wages were earned by reason of the disaster before the vessel arrived at Valpa- raiso, whereby the voyage was broken up, — the vessel being condemned and sold, by order of the consul, and not by voluntary abandonment and sale by the master. Thereupon the master inquires — 1st. Whether the wages were due? 2d. Whether the government will refund the money illegally re- ceived by the consul ? 1. The first question is divisible — 1st, as to the wages upon (621) the voyage from the port of San Francisco to the port of San Bias; 2d, as to the wages on the voyage from San Bias or Ypala to Valparaiso. Seamen in merchant ships are usually hired at a certain sum, either by the month, or for the voyage. In the former mode, the sum of wages depends upon the length of the voyage; in the latter case it is fixed invariably without regard to the duration of the voyage. In this case, it appears the sum of wages depended upon the duration of the voyage, being rated by the month. The general rule is that the wages of seamen on board of mer- chant ships are payable out of the earnings for freight; and if no freight is earned by reason of the perils of the sea, or capture by the enemy, and not by the fault or neglect of the master or owner, no wages are due. Freight is the mother of wages. (Hernaman v. Bawden, etc., iii Burr. 1844; Abemethey v. Sandale, ii Douglass, 542.) But it seems to be settled that, where a voyage is divided by vari- ous ports of delivery, a claim for proportional wages attaches at each of such ports of delivery, upon safe arrival, and that all attempts to evade or invade that title, by renunciations obtained from the mari- ners without any consideration, by collateral bonds, or by contracts inserted in the body of the shipping articles, not usual, not fully ex- j)lained to these illiterate and inexperienced persons, are ineffectual and void. (Anonymous, 1. Ld. Raym. 639, and also Anon., Ibid. 739; ComjTis' Dig., Merchant (F. 2.) 4th edit. vol. 5, p. 56; the Two Catherines, 2 Mason's Circuit Court Rep. 319-329; Thompson v. Faus- sat, 1 Peters' Cir. Ct. Rep, 182; Judge Winchester's decisions, re- 492 OPINIONS OF ATTORNEYS GENERAL ported in note to Relf v. The Maria, 1 Peters' Admiralty Rep. 186; Crammer v. Gernon, 2 Peters' Adm. Rep. 390; Kent's Comm. vol. iii, p. 190-191, Lecture 46, Abbott on Shipping, part iv, chap. 2, p. 417, and note 2 ; Moore v. Jones, xv Mass. Rep. 424 ; Hooper v. Perley, xi Mass. Rep. 545; Swift v. Clark, xv Mass. Rep.173.) The principles of these decisions entitle the crew of the "Serene" to wages up to the time she sailed from Ypala, after having discharged her cargo to San Bias. (622) But they were not, because of the voyage to Valparaiso being broken up, entitled to wages from and after the time the vessel sailed from Ypala. Next, as to the three months' wages, charged because of the proceedings and sale so ordered by consul at Acapulco. The act of the 28th of February, 1803, applies only to voluntary sales by the master in foreign ports, or by the owners, and not to a case where a sale is rendered necessary by a shipwreck. (The Dawn, Ware, 488; Pool v. Welsh, Gilpin, 193; Abbott on Shipping, p. 193, note 1; The Saratoga, 2 Gallison, 181.) In its 12th, 13th, and 14th articles, the act of 20th July, 1840, applies to a case where a vessel, having arrived at a foreign port, is about to sail thence on another or continuous voyage, and the crew apprehend that their lives will be endangered because of her unsuit- able condition to go to sea, and make complaint to the consul of such intention to go to sea in an improper and unsuitable condition, — "because she is leaky; or insufficiently supplied with sails, rigging, anchors, or any other equipment; or that the crew is insufficient to man her ; or that her provisions, ' ' stores and supplies are not, or have not been during the voyage, sufficient and wholesome." Upon complaint in any of these or like cases, the consul shall appoint fit persons ' ' to examine into the causes of complaint ; " to examine the vessel, and whatever is on board, and to receive any other proof. The examiners are to state whether, in their opinion, "the vessel was sent to sea unsuitably provided in any important or essential par- ticular, by neglect or design." If the inspectors find any complaint "well founded;" they are to state what ought to be done "to put the vessel in order for the continuance of her voyage." They have no authority to report a sale; the crew have no authority to ask a sale; this act gives no authority to the consul to order a sale of the vessel. By the 14th article of this act, if the examiners report that "the vessel was sent to sea imsuitably provided in any important or essen- tial particular, by neglect or design, "and the (623) consul approves of such finding, "he shall discharge such of the crew as require it. 493 Vol. VI, p. 617 (GUSHING) In such case of neglect or design, the crew, discharged upon such groiuid. are each entitled to three months' pay, in addition to his wages up to the time of the discharge." If the deficiency complained of by the crew is reported by the examiners to have been "the result of mistake or accident, and could not, in the exercise of ordinary care, have been known and provided a*" * ""^t before the sailing of the vessel, and the master shall in a ^sonable time remove or remedy the causes of complaint, then the crew shall remain and discharge their duty." But if the master does not, in a reasonable time, remove or remedy the causes of complaint, then the crew shall, upon request, be discharged; and in this latter case they shall receive each "one month's wages in addition to the pay up to the time of the discharge." This act has not deprived owners and masters of vessels of the right to consult their own interests, in selling or not selling; it has not subjected vessels to consular orders of sale because of such vessels having, in their voyages, sprung a leak and put into the nearest port for safety. It intends to redress the just complaints of the crews of vessels in foreign ports against being compelled to risk their lives in vessels about to go to sea in unsuitable, unsafe conditions; to hear and re- dress the just complaints of mariners against being exposed to peril by the neglect or design of masters and owners, or by their mistakes or accidental omissions. If the complaint exhibited to the consul, upon examination, is found to be just and to have been the result of neglect or design, then the mode and measure of redress are pointed out, the crew may be discharged from further service, and have three months' pay in addition to his wages up to the time of dis- charge." If the complaint is found to be true, but to have been the result of mistake or accident, the act points out the mode and measure of redress. "The master shall in a reasonable time remove or remedy the causes of complaint, and then the crew shall remain and discharge their duty. But if the master shall not in a reason- (624) able time remove or remedy the causes of complaint, then the crew, upon their request, shall be di.scharged, "and receive each one month's wages in addition to the pay up to the time of discharge." The powers of the consul are confined to the examination of com- plaints of the crew against the master, as that he is about to take the crew to sea in a vessel, which is "in an unsuitable condition to go to sea, becau.se she is leaky or insufficiently supplied "with sails, rigging, etc. — "or that the crew is insufficient," or that her "provisions, .stores, and supplies are not, or have not been, during the voyage, sufficient and wholesome." The powers of the consul extend no 494 OPINIONS OF ATTORNEYS GENERAL further than to discharge the crew with their extra wages in addition to the pay up to the time of discharge. That a vessel is about to sail out of port in a leaky condition, is a just cause of complaint by the crew, which the master may be directed to remove or redress in a reasonable time; but it is no just cause of complaint against master or owners that, by the straining of the vessel in heavy seas, she has spnmg a leak. Upon due examination of this act, it cannot be tortured into an authority to the crew of the vessel to lodge complaint against the mas- ter, because the vessel has sprung a leak, by reason of her laboring in heavy seas, and has, therefore, to put into the nearest port for safety. In this case, the crew themselves deposed before the consul that the leak was caused at sea, while the vessel was on her voyage, by heavy rolling seas, and "not to be attributed to any insufficiency of the said bark, or default of him, the said master, his officers and crew." And yet, after these affidavits before the consul, showing the cause of the disaster, and why the vessel could not proceed to Valparaiso, but was by distress compelled to put into the harbor at Acapulco, the consul entertained the mere application of the crew for a survey to examine into the condition of the bark, without a solitary complaint against the master or owTiers; and after the examiners had reported that the leak "was the result of, or occasioned by, heavy seas, and that no fault can be attributed to her officers or (625) crew, as she appears to have been w^ell provided with all things necessary for her voyage," the consul ordered a sale of the vessel at auction ; and then distributed the proceeds, all of which, by his accoimt rendered, were swallowed up by expenses and three months' wages to the crew in addition to their pay to the time of the sale. The act of 1840 does not change the general principle of the maritime law, that seamen's wages are not due for a voyage not per- formed, w^hen no freight has been earned, when the voyage has been broken up by a disaster at sea, and when no fault is attributable to the master or owners. Nor did it put it into the power of the crew, when the vessel was obliged by a leak, caused by the straining of the vessel in heavy rolling seas, to put into the nearest port for safety, and so disabled from continuing the voyage imtil repaired, to complain of the master for such an event, cause the vessel to be sold, and thereby acquire profit to themselves by the payment of wages not earned, and the further advance of pay for three months to come. In my opinion, therefore, the payment of wages by the consul to the crew for the time after the ship, having previously discharged her cargo at San Bias, sailed from Ypala, and down to the time of 495 Vol. VI, p. 617 (GUSHING) the sale, as also the detention of wages for three months in addition, was an illegal act. Indeed, no power is given to the consul, by this act of congress or any other, upon complaint of the crew or otherwise, to order a sale of the vessel, and it does not appear upon what authority he assumed so to do in the present instance. Provision is made by the law or the regulations of most countries of Europe and America for the case of the ascertained unseaworth- iness of merchant ships on a voyage, and the consequent jurisdiction of the consul for the disposition on security of the property, and the payment of wages due the seamen. Thus the French "Code de Commerce," (art. 237,) while, in general, forbidding the master of a merchant vessel to sell her abroad unless he have a power of attorney from the owner, yet empowers him to do this, in case of the innavigability of (626) the ship lawfully ascertained, and with permission of the consul. But it gives no power to the consul to order the sale in invitum. (Pardessus, Droit Com- mercial, tome vi, p. 260-261 ; Moreuil, Manuel des Agents Consulaires, p. 85-86.) So, in the consular regulations of Denmark, the consul is auth- orized to make sale of a disabled ship when the owner has on the spot no agent or attorney, but not otherwise; and even then he must, if possible, send and obtain the consent of the owner. (DeCussy, Regle- ments Consulaires, p. 411.) No act of congress gives to an American consul power to make a forced sale of a ship, because of innavigability, except that of April 14th, 1792, which expressly excludes the authority of the consul to sell either ship or goods "when the master, owTier, or assignee thereof is present or capable of taking possession of the same." (i Stat, at Large, p. 283.) Upon the face of the documents, the sale was ordered by the con- sul as of his own authority. If so, it was wholly illegal, especially the master, who was part owner, being present. It was possible, how- ever, that the master assented to, or by some writing not filed author- ized, the sale ; for it is a suspicious fact in this part of the case, that the papers do not .show to whom the sale was made, and that, as al- read}' intimated, the several surveys, fees of consul, seamen's wages, and other charges, consumed all the proceeds of the sale in the hands of the consul. As to these and the other acts of the consul, in so far as he may have exceeded his authority, the United States are not responsible : — excepting only that if, upon such forced sale of the vessel, caused by the consul, he has retained one-third of the wages of the seamen as 496 OPINIONS OF ATTORNEYS GENERAL a fund for the payment of the passages of seamen citizens of the United States desirous of returning to the United States, and for the maintenance of American seamen who may be destitute, as directed by the 3d section of the act of 28th February, 1803, in cases of voluntary sales of American vessels in foreign ports, — and if he shall have paid into the treasury, or legally expended to the use of the United States, any portion of the money, so received by mistake and misconstruction of the law, — then such portion so expended to the use (627) of the United States, ought to be refimded to the o^\^lers of the bark "Serene." I am, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VII. p. 18 (Gushing) CELEBRATION OF MARRIAGES BY CONSULS Consuls of the United States have no lawful authority as such to solemnize marriages in countries comprehended within the pale of the international public law of Christendom. Secus, in countries not Christian, where hj convention or in fact the rights of exterritoriality are possessed by citizens of the United States. Attorney General's Office, Novemher 4, 1854. Sir: Your communication of the 3d instant states that it is the practice, to some extent, of the consuls of the United States abroad to marry parties, either citizens of the United States or not, and this without observance of the laws of the particular place regarding mar- riage, — and suggests the inquiry whether such marriages are valid in the United States, either as to the personal status of the parties themselves and their issue, or as to any of the rights of property de- pending on the matrimonial relation. This inquiry belongs to international law private, as distinguished from international law public: that is to say, it regards, not the rela- tions of nations among themselves, but the relations of individuals to the laws, civil or criminal, of different nations. (Foelix, Dr. Int. Prive, tit. Prel.) The different states of Christendom are combined, by religious faith, by civilization, by science and art, by conventions, and by usages or ideas of right having the moral force of law, into a com- munity of nations, each politically sovereign and independent of the other, but all admitting much interchange of legal rights or duties. 497 Vol. VII, p. 18 (CUSHINa) (Vattel. Droit des Gens, Prel. s. 11; Wheaton's Elements, p. 40; Garden, Code Dip. de I'Europe, torn, i, Int. p. 3.) As between themselves, the general rule of public law is, that each independent state is sovereign in itself, and has more or less complete jurisdiction of all persons being, matters happening, con- tracts made, or acts done, within its own territory. (Kluber, Droit des Gens, s. 21 and passim; Story's Conflict of Laws, ch. 2.) I say more or less complete, because, although each nation (19) possesses its territory as its own, and exercises jurisdiction within itself, not only as to persons, whether subjects or foreigners, their acts and their property therein, and in general neither claims itself, nor concedes to others, external jurisdiction, yet each yields to the other certain reciprocal rights within itself, which are some- times denominated by the civil law term of servitudes of the public law or law of nations. (Martens, Precis, s. 83.) These pri^aleges, servitudes, or easements of public law have gro^\'n up either by express convention, or by usage founded on con- sent. Per Ch. J. Marshall. The Exchange, vii Cranch, p. 136.) Among them are the effect, which, in certain cases, one state concedes to the laws of another in regard to contracts made in the latter, and the reciprocal rights conceded of personal residence or commercial intercourse, and of the interchange of ministers and consuls; which concessions modify, to a certain degree, the hypothetical completeness of the internal sovereignity of each nation. Hence, in discussions of private international right, the fimda- mental and all-prevading distinction between the statute personal, or the laws of one's 0"wti proper domicil, and the statute real, or the laws which are independent of the person, and which regulate in a foreign country his acts or interests irrespective of his domicil. The personal statute is transitory, and follows the person ; the real sta- tute is chiefly confined to things, which it controls only in the locus rei sitae, or the given territory. (Dalloz, Diet. Juris, s. v. Loi Pers. ; Proudhon, Des Personnes, torn, i, p. 8.) To the regular jurisdiction, however, of each country over per- sons, things, and acts being or done within it, there exist, by re- ceived public law, certain absolute exceptions. These exceptions are the several cases of exterritoriality: That is, the various conditions in which a pjerson, though abroad, is exempt from the foreign juris- diction, and is deemed to be still within the territory and jurisdiction of his own countrj'. The doctrine of exterritoriality is denounced by some speculative publicists as if it were a mere fiction of law. (See Pinheiro Ferreira, Droit Public tom. ii, p. 197.) This view of the (20) matter is super- 498 OPINIONS OF ATTORNEYS GENERAL ficial, for it is only a cavil as to the name ; and erroneous, because it argues upon the name, and not the thing which it represents. The word "exterritoriality" is a sufficiently definite technical designation for the peculiarity of legal condition already defined as attaching to certain persons in a foreign country, to wit, the case of an actual sovereign of an independent state, his person, suite, resi- dence, and furniture, while he resides or sojourns peaceably in a foreign coimtry ; a foreign army, whether in peace or war ; a ship of war generally, and sometimes a merchant ship, in a foreign port, and either of them on the high seas, in all circumstances; and a foreign ambassador. (Wheaton's El., p. 139.) In all these cases, and expressly in that of foreign ministers, the privilege of exterritoriality extends to the residence as well as the person of the foreign minister, and to certain legal acts performed in his presence. (Vattel, 1. 8, ch. 7, 8, 9; Kluber, s. 204; Martens, Precis, 1. 7, ch. 5; Foelix, liv. 2, tit. 2, ch. 2, s. 4; Ch. de Martens, Guide Diplomatique, ch. 5.) Such are the rights of an ambassador or other foreign minister. But, although consuls are not merely commercial agents, as many authors assert, (Wicquefort, Ambos., vol. i, p. 133; Bynkersh. de F. Legat., p. 165; Wildman's Institutes, p. 165;) and although they un- doubtedly have certain of the qualities and some of the rights of a foreign minister, (see De Cussy, Reglements Consulaires, sec. 7;) still it is undeniable that they do not enjoy the privileges of exterri- toriality, according to the rules of public law received in the United States. (Clark v. Cretico, i Taunton, 106; The Anna, iii Wheaton, 446; United States v. Ravara, 11 Dallas, 297; Viveash v. Becker, iii Maule & Sel. 284; Barbuit's Case, Cases Temp. Talbot, 281; Common- wealth V. Kestoff, V. Serg. & R. 54; Durand v. Halback, i Miles, 46; Davis V. Packhard, vii Peters, 276 ; S. C, vi Wend. 327 ; S. C, x Wend. 50 ; Flynn v. Stoughton, v. Barb S. C. R. 115 ; State v. De la Foret ii Nott & M. 217 ; Mannhard v. Soderstrom, i Bin. 138 ; Hall v. Young, iii Pick., 80; Sartori v. Hamilton, i. Green's R. 107.) In all the adjudged cases above cited, it is either ex- (21) pressly ruled, or the point presented assumes, that consuls are subject to the local jurisdiction. The same doctrine is recognized in the modem law treatises of authority, whether in the United States or in Great Britain. (Wheaton's Elements, p. 293; i Kent's Com., p. 43; i Wild- man's Inst., p. 130; Flynn 's Brit. Consuls, ch. 5.) Notwithstanding the somewhat vague speculations of Vattel and some other continental authors on the question whether consuls are quasi ministers or not, (Vattel, Droit des Gens, 1. iv. ch. 8; De Cussy, Reglements Consulaires, sec. 6; Moreuil, Agents Consulaires, 499 Vol. VII, p. 18 (GUSHING) p. 34S; Borel, Des Consuls, ch. 3,) it is now fully established by judi- cial decisions of the continent, and by the opinions of the best modern authorities there, that consuls do not enjoy the diplomatic privileges accorded to the ministers of foreign powers ; that in their personal af- fairs they are justiciable by the local tribunals for offences, and sub- ject to the same recourse of execution as other resident foreigners; and that they cannot pretend to the same personal inviolability and exemption from jurisdiction as foreign ministers enjoy by the law of nations. Foelix, 1, ii, tit. 2, chap. 2, s. 4; Dalloz, Die. de Jurispr,, tit. Agents Diplomatiques, no. 35; Ch. de Martens, Guide Diplomat., s. 83.) In truth, all the obscurity and contradiction as to this point in different authors arise from the fact that consuls do unquestionably enjoy certain privileges of exemption from local and political obli- gation ; but .still these privileges are limited, and fall very far short of the right of exterritoriality. (Masse, Droit Commercial, tom. i, nos. 438, 439.) Thus, in the United States, consuls have a right, by the constitu- tion, to the jurisdiction of the federal courts as against those of states. They are privileged from political or military service, and from personal taxation. In some cases we have by treaty given to consuls, when they are not proprietors in the country, and do not en- gage in commerce, a domiciliary and personal immunity beyond what they possess by the general public law ; and the extreme point to which these privileges have been carried in any instance may be seen in the consular (22) convention of the 23d of February, 1853, between the United States and France, (x Stat, at Large, p. 992.) Having premised this explanation of the exact status of consuls by the law of nations, it remains for me to deduce from the general doctrine the particular conclusions applicable to the special subject of inquiry. In regard to the contract of marriage, the general principle in the United States is, that, as between persons sui juris, marriage is to be determined by the law of the place where it is celebrated. If valid there, then, although the parties be transient persons, and the marriage not in form or substance valid according to the law of their domicil, still it is valid everywhere: — with some exceptions, perhaps, of questions of incest and polygamy. If invalid where celebrated, it is invalid everywhere. (Story's Conflict of Laws, s. 113; Bishop on marriage, 8. 125.) The only exceptions to this last proposition, namely, that mar- riages not valid by the lex loci contractus are not valid anywhere else, are, first, in favor of marriage, when parties are sojourning in a 500 OPINIONS OF ATTORNEYS GENERAL foreign country where the law is such that it is impossible for them to contract lawful marriage imder it. Secondly, in certain cases in which, in some foreign countries, the local law recognizes a mar- riage as valid when contracted according to the law of doniicil. Thirdly, where the law of the coimtry goes with the parties, that is, in the contingency of their personal exterritoriality, as in the case of an army and its followers invading or taking possession of a foreign country, (Ruding v. Smith, ii Hag. C. R., 371; Huber. Praelec. J. C. de con, leg., i, tit. 3, s. 10; J. Voet. in Dig. 1. xxii, tit. 2;) and, per- haps, of an army in transitu through a friendly state, (Wheaton's El., p. 140,) and of a foreign ship of war in the ports of the nation, (The Exchange, vii Cranch, p. 136.) It follows by necessary consequence, save in the excepted cases enumerated, that a marriage, celebrated in any given place, must be celebrated according to the law of the place, and by a person whom those laws designate, unless the person by whom, or the premises in which, it is celebrated, possess the privileges of exterritoriality. (23) Therefore it may be, according to the opinion of Lord Stowell, that the presence of a foreign sovereign sojourning in a friendly country, or that of his minister plenipotentiary, or the act of a clergy- man in the chapel or hotel of such sovereign or his ambassador, may give legality to marriage between subjects of his or members of his suite. (Ruding v. Smith, ii Haggard's C. R. 371; Prentiss v. Tudor, i Hagg. C. R. 136; i Burge on Col. & F. Laws, p. 168.) But even such right of a foreign sovereign or his ambassador to celebrate a marriage, if it exist, applies only to his subjects, country- men or suite. Such persons would be married according to the law of their domicil, or that of the sovereign or ambassador in whose ser- vice they are, on the assumption that, for all the purposes of legal right, their domicil goes with them, and that they are still at home, and in point of law are not in a foreign countiy where the marriage is in fact celebrated. A marriage, celebrated by such sovereign or his ambassador in a foreign country, between citizens of that country, or foreigners residing there or sojourning there, would derive no force from him : it would be null and void, unless legal according to the law of the place. Consuls, it is still more evident, have no shadow of power to cele- brate marriage between foreigners. Nor can they between their own countrymen, unless expressly authorized by the law of their own country ; because, according to the law of nations, they have not the privileges of exterritoriality, like an ambassador. That American consuls have no such power is clear, because it is not given to them by any act of congress, nor by the common law 501 Vol. VII, p. 18 (GUSHING) of niarriaoje as understood in the several states. (See Kent v. Bur- gess, xi Simons. 361.) And marriage, in the United States, is not a federal question, but one of the resort of the individual states. (Bishop on marriage, passim.) Hence, it is impossible for me to doubt : First, that marriages celebrated by a consul of the United States in any foreign coimtry of Chritendom, betweten citizens of the United States, Mould have no legal effect here, save in one (24) of the exceptional cases above stated of its being impossible for the parties to marry by the lex loci. And, secondly, that marriages celebrated by a consul of the United States, in a foreign country, between parties not citizens of the United States, would have no legal effect here, unless in case the act be recognized expressly as valid by the law of the place of con- tract. In countries where mere consent of the parties, followed by copula, constitutes marriage, as in Scotland, (McAdam v. Walker, i Dow's R. 148; Dairy mple v. Dairy mple, ii Hagg. C. R. 97,) and where the presence and testimony of any person whatever suffice to prove the consent, there a marriage contracted before a foreign consul might be valid, not because he is consul, but because the consent makes the marriage. But, in most countries of Europe, specific forms of law are to be followed, without which there can be no valid marriage ; and as it appears that the marriages, which the consuls of the United States have celebrated abroad, have in most cases been celebrated between persons collected at some seaport for the purpose of emigration, and who are not only foreigners as regards the United States, but foreign- ers also as regards the place in which the marriage is celebrated, it becomes material to consider the question, in the sense of this im- pediment of double alienage, in its relation to the law matrimonial of the United States. The general rule of our law is to ascribe validity to marriages when they are valid at the place of celebration. If the parties to the marriage are at the time actually in their oM-n proper domicil, as in the case of Spaniards domiciled in Barce- lona, and married there, it is clear that the local jurisdiction is abso- lute and complete, and that a consul of the United States has no more right to celebrate a marriage between such parties there than he has to undertake the duties of ca7)tain general. Suppose, however, that the parties are foreigners to the foreign place, and at the same time not citizens of the United States? The other governments of Christendom, and especially those (25) 502 OPINIONS OF ATTORNEYS GENERAL of Europe, are, it is notorious, much more exacting and punctilious than the United States in the application of their own laws of personal status to their own subjects when absent from their country. We may not regard this here, but they do among themselves; and therefore it is important to look at the legal bearings of a marriage celebrated in one European country between the subjects of some other government of Europe. The general rule there is, that the civil obligations of a person follow him into a foreign country, save that in some countries forms are prescribed, according to which a subject may relieve himself of his allegiance to his natural sovereign and the consequent civil obli- gations. It is believed that many of the persons, who emigrate from Europe to the United States, have not taken these preliminary steps; and therefore, until they shall have acquired a new domicil in the United States, and while they are sojourning in some other foreign country on their way for, and previous to, their embarcation, they must of necessity be still subject to the law of their domicil in so far as this law is respected by the country of their transit or of their temporary sojourn ; and the question of the validity of their marriage there by a foreign consul must depend on this legal condition of the parties in the countries of Europe. In order to appreciate the legal relations in Europe of a marriage between parties foreign to the place of marriage, we may take as a convenient example, the state of the law in France. In France, of course, all Frenchmen must conform to the precise provisions of their own law; nay, as a general rule, if they marry abroad, still they must observe certain of the conditions of the Code Civil, in order to give effect to the marriage in France. (Code Civil, no. 170; Foelix, ul>i supra, no. 88.) In regard to such foreign marriages of Frenchmen, it has been adjudged by the courts of that country, that, — 1. Frenchmen long established in a foreign country, and who have reserved no habitation and have no domicil in France, are not held to the forms of public notice there required by the Code. (Dal- loz, Diet. Jur., Mariage, no. 374.) (26) 2. Generally, all acts appertaining to the civil condition of Frenchmen abroad may be proved by the modes of proof practiced in the foreign country; and, therefore, a marriage may be proved by witnesses, or by the certificate of a diocesan, when celebrated in a foreign country where no registers of civil condition exist conformable to the Code. (Dalloz, uhi supra, nos. 346, 356.) 3. There are no differences of opinion as to the point, that Frenchmen who marry abroad must conform to the provisions ol 503 Vol. VII, p. 18 (GUSHING) the Code as to capacity, age, consent, and other conditions of sub- stance ; but there are contradictory decisions and opinions as to the point, wliether it be or not essential to the validity of such marriage that there should have been previous publication of bans in France ; and whether, if this be a radical defect, it is curable or not, (Dalloz, uhi supra, nos, 357, 375;) because the article of the Code (no. 170,) which legalizes a marriage contracted between Frenchmen abroad according to the forms used in the foreign country, adds, — provided (pourvu) the marriage be preceded by the publication of bans, and do not contravene the other conditions of law, as prescribed by the 1st and 2d cliapters of the 5th title of the Code. (See Toullier, Droit Civil, tom. i, nos. 576, 579.) 4. The Code (art. 47 and 48) provides that any civil act of Frenchmen abroad shall be valid if it be drawn up in pursuance of the forms of the place, according to the rule locus regit actum; or if it has been received conformably to the laws by the diplomatic agents or consuls of France. It has been doubted whether this applies to marriage; though the better opinion is that it does. (Dalloz, uhi supra, nos. 362, 363; Toullier, Droit Civil, tom. i, no. 360; Merlin, Repert., Mariage, p. 641.) It is said, however, that if one of the parties to a marriage by a French consul abroad is French and the other not, then the marriage is null, because the consul has no juris- diction as to the party not French, and the marriage may be attacked by either party. (Dalloz, ubi supra, nos. 365, 366.) In one of the cases where this point was decided, the parties possessed an act of marriage, with twenty years, cohabitation, (27) and two children. (Proudhon, Tr. des Personnes, tom. i, note a.) 5. Finally, a marriage contracted in France by a foreigner according to the exterior forms prescribed by the law would be null, of intrinsic nullity, if the foreigner infringed any of the prohibitions of his statute personal ; that is, of the personal law of his domicil. (Foelix, iibi supra, s. 88.) These views might be extended in detail to other countries of Europe. Thus, in the Dutch Netherlands, in addition to the conditions of competency and of publication of bans, there must be legal contract before the proper magistrate, without which the marriage is a nullity. (Van der Linden, by Henr}', p. 83.) As to this, no exception is made in favor of any persons whatever, being foreigners, or in itinere, or otherwise. (See Ruding v. Smith, ii Hag. C. R. 371, note.) So, in Spain, marriage must be solemnized by prescribed rule, that is, through the intervention of the parish priest, or other clergy- man with license of his ordinary, according to the article of the 504 OPINIONS OF ATTORNEYS GENERAL Council of Trent concerning the reformation of matrimony. (Tapia, Febrero Novis., lib. i, cap. 2; Sala, Derecho real de Espana, lib. i, tit. 4.) It is unnecessary to extend these examples. Sufifice it to say, that in some countries religious or ecclesiastical impediments exist; in others, where that is not the case, the legal conditions of capacity and requisite forms are very serious obstacles. A critical examination of the law of different countries of Europe would only serve to augu- ment the weight of legal objections to the celebration of marriages by consuls of the United States. It may be, that a marriage between foreigners celebrated by a consul of the United States abroad, though utterly null in the coun- try where it is celebrated, might, if the parties emigrate to this coun- try, acquire validity in some of the states of the Union, as a marriage proved by repute and by cohabitation following consent, according to the old rule of the common law. Even then, the certificate of the consul would not constitute the mar- (28) riage; it would serve at most only as proof of consent, to be connected with proof of cohabita- tion. But the practice of celebrating such marriages would be objec- tionable even then, because it is in fraud of the local jurisdiction, and contrary to the dictates of international comity, if not to positive law. In what precedes, the inquiry has been treated as relating entirely to marriages assumed to be legalized by consuls of the United States residing officially in any of the countries of Christendom. For, in regard to states not Christian, although we make treaties with them as occasion may require, and assert in our intercourse with them all such provisions of the law of nations as are of a political na- ture, — yet we do not suffer, as to them, that full reciprocity of munici- pal obligations and rights which obtains among the nations of Christ- endom. This point is determined very explicitly in our treaty with China, which, in the most unequivocal terms, places all the rights of Americans in China, whether as to the person or property, under the sole jurisdiction, civil and criminal, of the authorities of the United States, (see the treaty, viii Stat, at Large, p. 592;) and congress has made provision to meet the exigencies of the treaty in this respect. (Act of August 11, 1848, ix Stat, at Large, p. 276.) Our treaty with Turkey is less explicit on this point ; but it ex- pressly ascribes to citizens of the United States exterritoriality in criminal matters, (see the treaty, viii Stat, at Large, p. 408,) provi- sion as to which is made by the above-cited act of congress; and as 505 Vol. VII, p. 18 (GUSHING) the treaty stipulates how controversies in Turkey, between citizens of the United States and subjects of the Porte, shall be adjudicated, that is, by the local authorities in presence of a representative of the United States ; and as it stipulates that only a certain class of litiga- tion shall be submitted to the Porte; and as it gives to Americans in Turkey all the rights of the most favored nation, with express refer- ence to "the usages observed towards other Franks," — it might be assumed that the doctrine of exterritoriality applies to Americans in Turkey, as it certainly- does to subjects there of all the (29) Christian states of Europe. (Moreuil, Guide des Agents Consulaires, tit. 2.) Our treaties with the minor Mahammedan governments of Tri- poli, ^Morocco, Muscat, and Brimi, are even less explicit than that with Turkey. Still, it may be assumed in regard to them, as a principle of the international law of the world, so far as there is any, that unless there be express agreement to the contrary, no Christian nation admits a full reciprocity of municipal rights as between itself and any state not Christian ; and therefore, that, in the Mohammedan governments above enumerated, Americans possess the rights of ex- territoriality which belong to all other "Franks," that is, the races of independent Christian Europe and America. (See Ward's Law of Nations, vol. ii, 'passim; Kluber, Droit des Gens, s. id,; Wildman's Institutes, vol. i, p. 130.) In our treaty with Siam, we have inconsiderately engaged that our citizens being there "shall respect and follow the laws and cus- toms of the country in all points." (See the treaty, viii Stat, at Large, p. 455.) I do not know how they are to do this, unless they become Pagans "in all points." That provision of the treaty is, in the international relations of the United States, the solitary excep- tion, it is believed, to the rule that the municipal rights of citizens of the United States are not subject to the local law of any state not Christian. True, we deal with such states as governments, and apply to them, 80 far as we can, the doctrines of our international law. (The Helena, iv Robins. Adm. R. 5.) But, when we speak of the law of nations, we mean the international law of the nations of Christian Europe and America. Our treaties with nations other than these bring them practically within the pale of our public law, but it is only as to political rights: municipal rights remain as they were. (Wheaton's Elements, p. 44; Poison's Law of Nations, p. 17; Philli- more's International Law, p. 86.) On this point, as on all others in the course of the present opinion, Engli.sh and American authorities are cited indiscriminately, because the law of both countries maintains the same doctrine in the premises; 506 OPINIONS OF ATTORNEYS GENERAL and Great Britain is in advance of, (30) rather than behind, the other nations of Christendom, in repelling the municipal jurisdiction of communities not Christian. The doctrine above enunciated applies to Japan ; to the minor in- dependent states of Asia and its islands, whether Mohammedan, Indo- Chinese, Malay, or what others; to the barbaric political communities of Africa; and still more to the petty insular tribes of Oceanica. Our treaty with the Hawaiian Islands places them on the footing of a Christian state, with the municipal rights belonging to the in- ternational law of Christendom, (ix Stat, at Large, p. 977.) Now, in regard to the states not Christian, not only the Moham- medan states, but all the rest, it seems to me that the true rule is, that contracts of citizens of the United States in general, and espec- ially the contract of marriage, are not subject to the lex loci, but to be governed by the law of the domicil ; and that, therefore, in such coun- tries, a valid contract of marriage may be solemnized, and the con- tract authenticated, not only by an ambassador, but by a consul of the United States. The English authorities come to substantially the same conclu- sion, for similar reasons. "Nobody can suppose," says Lord Stowell, "that whilst the Mogul Empire existed, an Englishman (in Hindo- stan) was bound to consult the Koran for the celebration of his mar- riage." In most of the Asiatic and African countries, indeed, law is personal, not local, as it was in many parts of Modern Europe in the formative period of its present organization. Hence, in British India, Hindus, Parsis, Jews, Mohammedans, Christians, all marry according to the law of their religion. Nay, the ecclesiastical law of England goes further than this, for it recognizes the marriage of Englishmen, celebrated according to the English law, that is, by a clergyman, in British factories abroad, though situated in Christian countries, but coim tries of the Roman Catholic or Greek religion, (Ruding v. Smith, ii Hagg. C. R., p. 371; Kent v. Burgess, xi Simons, 361.) In- deed, in the preceding cases, as in others, the English authorities, as we have already seen, lay down the broad rule that where, owing to religious or legal difficulties, the marriage is impossible by the lex loci still (31) a lawful marriage may be contracted, and of course authen- ticated, by the best means of which the circumstances admit, as in many cases of marriage contracted in the East Indies and in other foreign possessions of Great Britain. (See Catterall v. Catterall, i Roberts, 580.) This doctrine is conformable to the canon law, which gives effect to what are called matrimonia clandcstina, that is, marriages cele- brated without observance of the religious and other formalities de- 507 Vol. VII, p. 18 (GUSHING) creed by the Coimcil of Trent, (Cavalario, Derecho Canonico, torn, ii, p. 172; Escriche. s. v. Matr.,) when contracted in countries where, if those decrees were enforced, there could be no marriage, ("Walter, Derecho, Ecclesiastico, s. 292, 294.) Nay, in such countries, in the absence of a priest, there may be valid marriages by consent alone, conformably to the canon law as it stood before the Council of Trent, either by verba de praesenti or by verba de futuro cum copula, as hap- pened ex necessitate rei, under the Spanish law, in remote parts of America. Of course, in circumstances like this, a marriage might be legalized by a mere military' commandant. (Patton v. Phil. & New Orleans, i La. An. R., p. 98; see also Hallett v. Collins, x How, p. 174.) Surely this doctrine applies to the present question ; for, seeing that, by the common law of marriage, as now received in all, or nearly all, the states of the Union, marriage is a civil contract, to the validity of which clerical intervention is unnecessary, (Bishop on Marriage, s. 163,) it would seem to follow, at least as to all those countries, bar- baric or other, in which there is in fact no lex loci, or those Moham- medan or Pagan countries, in which, though a local law exist, yet Americans are not subject to it, that there the personal statute ac- companies them, and the contract of marriage, like any other con- tract, may be certified and authenticated by a consul of the United States. But this doctrine does not apply to the countries of Europe, or their colonies in America or other parts of the world: in all which there is a recognized law of the place, and the rule of locus regit actum is in full force. There, in my opinion, a con- (32) sul of the United States has no power to celebrate marriage between either foreigners or Americans. It appears by the correspondence accompanying your communi- cation that, in some parts of Europe.in consequent of poverty or other impediments thro^-n in the way of marriage, there is great preval- ence of concubinage; that the desire of lawful cohabitation enters into the inducements of emigration ; and that it becomes an object, espec- ially with emigrant females, to obtain, before leaving their country, if not a marriage, yet an assured matrimonial engagement ; and that such parties are in the practice of entering into mutual promises of marriage, and procuring the contract to be certified by the consul of the United States. Such a contract would probably give rights of action to the parties in this country; it must have a tendency to promote the good morals, and be particularly advantageous to the party mo.st needing protection, that is, the female emigrant; and nothing in our own laws, or in our public policy, occurs to me as for- 508 OPINIONS OF ATTORNEYS GENERAL bidding it, unless it be contrary to the law of the land in which the contract is made. I have the honor to be, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VII, p. 186 (Gushing) AMBASSADORS AND OTHER PUBLIC MINISTERS OF THE UNITED STATES (Syllabus) The expression "ambassadors and other public ministers," which occurs three times in the constitution, must be understood as comprehending all officers having diplomatic functions, whatever their title or designation. Hence, the president has power by the constitution to appoint diplomatic agents of the United States of any rank, at any place, and at any time, in his discretion, subject always to the constitutional conditions of relation to the senate. The power to make such appointments is not derived from, and cannot be limited by, any act of congress, except in so far as appropriations of money are necessary to provide means for defraying the expense of this as of any other business of the government. During the entire administrations of Washington, John Adams, Jefferson, and the first term of that of Madison, no mention occurs in any appropriation act, of ministers of a specified rank at this or that place; but, sometimes by special act, and sometimes in the general appropriation acts, the provision for the diplomatic corps consisted of so much money "for the expenses of foreign intercourse," to be expended in the discretion of the president; and although, since that time, the practice has been to provide for certain ministers at certain places, yet that mode of legislation does not in terms, amd could not in law, either extend or restrict the constitutional authority of the president, (187) ^J ^°*^ ynth the advice and consent of the senate, to negotiate treaties and make diplomatic appointments, ac- cording to his and their judgment of the public interests of the Union. Commencing with the administration of our foreign affairs by Mr. Jefferson under President Washington, and so continuing under every successive president down to the present time, it has been the uniform practice of the government to regard the titular designations and the appointments of all diplomatic ministers as the exclusive and proper constitutional function of the conjoint executive de- partment, that is, the president and the senate. "Ambassadors," by the public law of Europe, enjoy the highest privileges, because of the pretended or putative direct relation of the ministers of this name to their sovereign ; but the imperial or regal sovereignty of a European monarchy neither has nor can have any public right in this respect, which does not equally belong to the popular sovereignty of a republic like the United States. The president has constitutional power to appoint, by temporary commission, a diplomatic officer to meet any public exigency arising in the recess of the senate. The president has constitutional power, in the recess of the senate, to change the designation of any mission, either by substituting a higher for a lower rank, or a lower for a higher, independently of any authorizing act of congress. 509 Vol. VII, p. 186 (GUSHING) Congress cannot by law require that the president shall make removals or re- appointments or new appointments of public ministers on a given day; not that he shall at all times appoint and maintain a minister of a prescribed rank at a particular court; because, while the House of Representatives has control of the tax power and of appropriations, yet the constitution has intrusted the whole negotiating power to the president in behalf of the aggregate Union, and to the senate composed of the legislative and executive ministers of the separate sov- ereignty and rights of each of the states of the Union. When the act of the last congress to remodel the diplomatic system of the United States, declares that from and after the end of the present fiscal year the president shall appoint envoys extraordinarios, with secretaries of legation, at every place except one in Europe, Asia, or America where the United States now have any diplomatic agent, whether envoy, minister resident, charge d 'Affaires, or commissioner, and proceeds to define the salaries of such envoys and secre- taries, — it could not constitutionally mean, and therefore is not to be construed as meaning, to require the president to make any such appointments, but only to determine what shall be the salaries of such ofiicers, in case they have been, or shall be, lawfully appointed at any time by the president. The phrase ' ' from and after ' ' a certain day, employed in the act, does not determine what its legal effect shall be, but only the time, when that legal effect, whatever it is, shall commence. The auxiliary verb ' ' shall ' ' in the act, wherever it occurs in reference to appointments, is only a word of time as to incidents, and never of command as to the main fact. (188) The act has no general phrase of repeal, and no effect of repeal by implication, and repeals nothing except such specific things as it repeals in ex- press terms. The president may, notwithstanding this act, continue to appoint or to re- tain public ministers of the rank of commissioner, minister resident, or charge d 'affaires, in his discretion, with concurrence of the senate. The existing laws, which prescribe a rate of salary for ministers resident and charg^ d'affaires, are not affected by this act, and still continue in full force. Envoys extraordinary and secretaries of legaton in office will, on the day fixed, be entitled to the benefits, and subject to the deductions, of the new pro- visions of this act regarding compensation, including salary whether increased or not, and prohibition of outfit or infit, without reappointment by the president. The president may appoint envoys at the places where the present minister is a minister resident, and in that case the new envoy will be entitled to the salary prescribed by the act. The president may leave unchanged all the ministers resident; in which case they will each be entitled severally to the salary prescribed by the pre-exiating acts of congress. The president may or not, in his discretion, appoint secretaries of legation at the places mentioned in the act. If the legal effect of the act could be considered as the prospective creation of new oflSres, to begin to exist at a future day certain, then the president might appoint on that day as for a vacancy then existing in the recess of the senate; but as the office of public minister is in fact a constitutional, not a statute one, he might appoint without the act, and in virtue of the constitution. The pUrase in the act, — "shall, by and with the advice and consent of the tenate, appQipt, ' ' (r??Dot take away any constitutional power of the president to 510 OPINIONS OF ATTORNEYS GENERAL appoint in the recesa of the senate, and has no effect save to negative the idea of its being intended to create any such "inferior oflBcers, " the appointment of which may be vested by congress in the president alone or in the heads of de- partments. The whole effect of the act, as to appointments, is, by the provision for new salaries on a given day, to invite the president to make new appointments on that day if he see fit; but whether he shall make them or not is a question ot his mere executive discretion under the constitution. The question of executive discretion in the case, being wholly independent of this act, is the permanent one, of wise and lawful discretion having its measure in the exigencies of the public service and the letter and spirit of the constitu- tion. The president may lawfully appoint new envoys and secretaries at all the places mentioned in the act; the act affords the pecuniary means of doing this; the president may well and should do this, in any particular case, where the pub- lic service seems to him to require it; but for him to change the personnel or raise the rank of the entire diplomatic service of the United States in the recess of the senate, and without the concurrence of that co-ordinate authority, would not be a just exercise of the presidential discre-n89)tion, whether in its relation to the ministers themselves, to the public service, or to the spirit of the constitution. The salary prescribed by existing law for all the present ministers resident, except one, is $4,500 ; for that one, the minister to the Ottoman Porte, it ia $6,000; which latter sum is the general statute compensation of ministers resi- dent in all cases save where the lower salary is expressly prescribed by particular act of congress. Although the appropriation act of the last session of congress, in appro- priating for the diplomatic service of the next fiscal year, provides in terms for envoys extraordinary only, still that appropriation is, by collation with express provision of previous laws, subject t© draft for the compensation of diplomatic officers of whatever rank lawfully in office by appointment of the president. The commissioner of the United States in China, while he is a diplomatic officer by the law of nations, is also a judicial officer by treaty and by statute. The provision of the new act, which contemplates the appointment only of an envoy extraordinary to China, is imperfect; for, although the first minister of the United States, in China, held those two distinct commissions, yet a repeti- tion of that fact at this moment would not be compatible with the diplomatic relations at present existing between the United States and China. I have the honor to be, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VII, p. 242 (Gushing) APPOINTMENT OF CONSULS It belongs exclusively to the president of the United States, by and with the advice and consent of the senate, to appoint consular officers to such plac«a as he and they deem to be meet. 511 Vol. VII, p. 242 (GUSHING) Consuls are oflScers created by the constitution and the laws of nations, not by acts of congress. Congress may by law vest the appointment of inferior consular officers in the president alone or in the secretary of state. When the act of the last congress, remodelling the consular system, says that from and after the 30th of June next the president shall appoint consuls to cer- tain places, it means that he may appoint them, if he see fit, with such reference to the adWce and consent of the senate as the constitution prescribes. The act does not require him to appoint new consuls, or to reappoint the present incumbents, at the places mentioned, nor to remove consuls now existing at places not named in the act, nor to omit to appoint new ones at other places not named in it. The rates and mode of compensation, by the act, take effect in regard to all consuls at the places named, and lawfully in office at the day fixed, whensoever they have been or shall be appointed. All of the provisions of the act regarding the duties of consular officers take effect on the 1st of July. Nothing in the act forbids the continued appointment of vice-consuls or con- sular agents, with approval of the secretary of state. The several consuls for whom the act provides annual salaries, must collect and pay over all fees for consular service to the government. The penalty of removal from office, which the act affixes to the non- performance of some duties by consuls, is inoperative, because removal from office cannot be enacted as a statute penalty, it being a matter for the constitutional discretion of the president. Consuls not duly accounting for fees collected for consular service are sub- ject to indictment for the statute crime of embezzlement, in the terms of the act of 1846, which regulates the collection, safe-keeping, and disbursement of public moneys. Consuls, commercial agents, vice-consuls, and consular agents, for whom salaries are not provided by the act, are entitled to continue to receive fees for consular service. The act does not repeal any fees except those which it expressly mentions, and leaves all others as they now stand by act of congress or regulations of depart- ment. The provisions of the act against the appointment of any citizen of the United States, not actually residing therein or aboard in the public service at the time, is directory only, not mandatory on the president. In taking charge of the estates of citizens of the United States dying abroad, the power of consuls is limited to collecting the assets abroad, discharging (243) them of local liabilities, reducing them to money, and transmitting to the treas- ury, subject to the orders, both before and afterwards, of the lawful executor or administrator. The rule for the distribution of the personal effects of any deceased citizen of the United States, either at home or abroad, is the law of the particular state of his domicile, and cannot be changed by the act of congress. Consuls-general are the proper persons to hold consular posts in the capi- tals of the great transmarine dependencies of European powers, and to consti- tute the medium of communication with the local governor or captain general, and are appointable at the discretion of the president with consent of the senate. 512 OPINIONS OF ATTORNEYS GENERAL Attorney General's Office, June 2, 1855. Sir: I proceed now to complete ray reply to your communica- tion of the ITth ultimo, by disposing of so much of the same, and of the written memoranda and verbal suggestions accompanying it, as relates to the consular provisions of the act of the last congress, en- titled "An act to remodel the diplomatic and consular systems of the United States." The act provides, in its fourth section, as follows : "Sec. 4. And be it further enacted, That from and after the thirtieth day of June next the President of the United States shall, by and with the advice and consent of the senate, appoint consuls for the United States, to reside at the following places, who shall re- ceive during their continuance in office an annual compensation for their services not exceeding the amount specified herein for each, and who shall not be permitted to transact, under the penalty of being recalled and fined in a sum not less than two thousand dollars, busi- ness either in their own name or through the agency of others. ' ' The section then goes on to enumerate sundry places, in various parts of the world, with salaries annexed to each, thus, — "London, seven thousand five hundred dollars." The act provides, in its fifth section, as follows: "Sec. 5. And be it further enacted, That from and after the thirtieth day of June next the President of the United States shall, by and with the advice and consent of the Senate, appoint consuls and commercial agents for the United States, to reside at the following places, who shall receive, during their continu- (244) ance in office, an annual compensation for their services not exceeding the amount specified herein for each, and who shall be at liberty to transact busi- ness. " And the section then goes on to enumerate sundry places, each with salary annexed, some of them thus, — "Southampton, one thousand dollars ; ' ' and others thus, — ' ' Curagao, five hundred dollars, (commercial agent.) " The 6th and 7th sections declare that no consul or commercial agent, who shall, after the thirtieth day of June next, be appointed to any of the places herein named, shall be entitled to compensation until he shall have reached his post and entered upon his official duties; and that the compensation of every consul or commercial agent, so appointed to any of the places herein named, shall cease on the day that his successor shall enter upon the duties of his office. The 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22d, and 23d sections provide various regulations concerning 513 Vol. VII. p. 242 (GUSHING) ' * consuls and commercial agents ; ' ' the 9tli also, and that alone, men- tioning "vice-consuls" and "consular agents." The 12th section provides as follows: "Sec. 12. And be it further enacted, That it shall be the duty of consuls and commercial agents to charge the following fees for performing the services specified, for which, under the penalty of being removed from office, they shall account to the government at the expiration of every three months, and hold the proceeds subject to its drafts: "For receiving and delivering ships' papers, half cent on every ton, registered measurement, of the vessel for which the service is performed. "For every seaman who may be discharged or shipped at the consulate or commercial agency, or in the port in which they are lo- cated, one dollar ; which shall be paid by the master of the vessel. "For every other certificate, except passports, — the signing and verification of which shall be free — two dollars." The 28th section declares that the President of the United States is "authorized to bestow the title of consul general" (245) upon any consul in Asia or Africa, "when, in his opinion, such title will pro- mote the public interest." The 26th section repeals all acts or parts of acts authoriz- ing the payment to consuls of "salaries for clerk-hire and office-rent," The 27th section provides as follows: "Sec. 27. ^Vnd be it further enacted. The provisions of this act to take eft'ect from and after the thirtieth of June next, any law or laws of the United States to the contrary notwithstanding." Upon the construction of this act, the first question is: Does it supersede the consuls who may be in office when it goes into effect ? My judgment on this point is governed by the considerations stated at length in my letter of the 25th ultimo regarding the public ministers of the United States, which considerations apply in prin- ciple to the subject of consuls, and compel me to think that the words of enactment, — the president shall from and after such a day ap- point, — signify only, may appoint, — or rather, that such and such compensation shall be allowed, after such day, to such officers of the denomination and at the places specified, who shall from and after that day be lawfully in office under the constitution or acts of congress. Of course, the act does not operate, either proprio vigors, or by compulsion of the president's will, so as to supersede any consul. I refer to that communication for a full statement of the considerations of constitutional right, or 514 OPINIONS OF ATTORNEYS GENERAL legislative and administrative action, and of statutory construction, which bring me to this conclusion. It occurs to me, however, that one of those arguments may have additional force of impression, in being presented from another point of view. The appropriation act provides that the increased salaries, which the new act allows from and after a certain day, may be paid to such existing envoys extraordinary as may not be reappointed. This clause of the appropriation act does not repeal anything ; it only as- sumes that a certain thing may lawfully happen, and then declares what is to be intended as the mean- (246) ing of the general act as applicable to that thing in case it shall thus happen. That supposed lawful thing is, the abstention of the president from reappointing certain envoys extraordinary. Now, this abstention could not be lawful if the language of the act, in regard to the appointment of en- voys from and after a prescribed day, implied an obligation impera- tive on the conscience of the president. But the clause of the ap- propriation act admits the legality of the supposed abstention: of course the provision of the new law in relation to the appointment of envoys, from and after a certain day, though absolute in terms, is not to be construed as imperative, and was not so intended by con- gress, either in the sense of inclusion of appointment or of exclusion, or as regards either time or nominal designation. Now, the same precise words, and in the same collocation, are em- ployed in regard to consuls and commercial agents, as well as envoys and secretaries of legation; and, according to the settled rules of statutory construction, what they mean in one of the cases they mean in all. But we have ascertained that the words are not imperative in their relation to envoys. Of course they are not imperative in their relation to consuls and commercial agents, either in the sense of inclusion of appointment or of exclusion, or as regards either time or nominal designation. Neither the present nor any other law of the United States pro- fesses to define the difference of meaning between the terms consul, vice-consul, commercial agent, and consular agent. Some writers on public law employ the term * * consular agent ' ' as the generic desig- nation of the class of consular officers, just as "diplomatic agent" is often used in a similar generic sense to denote all diplomatic officers, the ambassadors and public ministers of the constitution. But the term "consular agent" certainly has a much narrower acceptation in the usage of this government. The language of the constitution, as well when it refers to the appointments of our own "consuls," as when it gives to the courts of the United States jurisdiction over 515 Vol. VII, p. 242 (GUSHING) foreign "consuls," must be regarded as making this latter term the true nominal designation of the class in our law. (247) In the early usage of the government, we had only con- suls and vice-consuls, both appointed by nomination to the senate; but the present act, in the section where it speaks of "vice-consuls" and "consular agents." seems to regard them as the subordinates of consuls, and not requiring nomination to the senate; and this view of their relation is in accordance with existing usages. (Moreuil, Agents Consulaires, p. 65.) The act assumes another description of consular functionary, that of "commercial agent," as requiring to be commissioned by nomina- tion to the senate, and therefore having the same relation to the laws of the United States as "consul;" and, in assigning "commercial agents" to the colonial ports of the Netherlands, it recognizes the ex- isting usage, of applying this designation to consular officers ap- pointed to coimtries where no formal recognition of them by exequa- tur can be demanded or obtained by the government. Inspection of the language of public treaties will aid us to under- stand the mutual relation of the several grades of "consuls." Our first consular convention with France stipulates that either government may appoint consuls and vice-consuls, who may establish "agents" in the different ports or places of their departments, such agents to hold by "commission from one of the said consuls." (viii Stat, at Large, p. 108.) Our previous treaty of commerce with France provides that each government may have, in the ports of the other, "consuls, vice- consuls, agents, and commissaries." (viii Stat, at Large, p. 28.) The same phrase occurs in our first treaty of amity and commerce with Sweden, (viii Stat, at Large, p. 74.) In a subsequent treaty with the same power, (viii Stat, at Large, p. 236,) the phrase employed is consuls, vice-consuls, and commercial agents, (agents de commerce.) It also speaks of "consuls and their deputies," (suppleans.) In a treaty with Ru.ssia, consuls, vice-consuls, commercial agents, (agents commereiaux), and commissaries, are classed together as con- sular officers, (viii Stat, at Large, p. 448.) But the late consular convention with France is the most (248) explicit of all on this point. It makes provision for consuls general, consuls, vice-consuls, and consular agents; the vice-consuls and con- sular agents to be appointed by the consuls general and consuls, and approved by their government. (Session Acts 1853-4, Treaties, p. 117.) It also provides for "eleves consuls." This convention is framed with reference to the laws of France, 516 OPINIONS OF ATTORNEYS GENERAL by which vice-consuls and consular agents are the "delegates" of the consuls, (Ordon. 26 Octobre, 1833, De Clercq, Formulaire, p. 509,) and which establish the office of eleve consul, (Ordon. 20 Aout, 1833, ibid., p. 467.) We may conveniently regard the word of the constitution, "con- suls," as the generic designation of a class of public officers existing by public law, and recognized by numerous treaties, who are ap- pointed by their government to reside in foreign countries, and es- pecially in seaports, and other convenient points, to discharge ad- ministrative, and sometimes judicial, functions in regard to their fellow-citizens, merchants, mariners, travellers, and others, who dwell or happen to be in such places ; to aid, by the authentication of docu- ments abroad, in the collection of the public revenue; and, generally, to perform such other duties as may be assigned to them by the laws and orders of their government. Congress cannot, by legislative act, appoint or remove consuls any more than ministers; but it may increase at will the descriptions of consular officers; it may enlarge or diminish their functions; it may regulate their compensation ; it may distinguish between some officers appointable with advice of the senate, and others appointable by the president alone, or by a head of department. Accordingly, by successive acts of congress, namely: the act of April 14th, 1792, (i Stat, at Large, p. 254;) July 6, 1797, (i Stat, at Large, p. 533;) March 2, 1799, (i Stat, at Large, p. 690;) February 20, 1803, (ii Stat, at Large, p. 203;) March 3, 1813, (ii Stat, at Large, p. 810;) April 20, 1818, (iii Stat, at Large, p. 437;) March 1, 1823, (iii Stat, at Large, p. 737 ;) March 3, 1836, (iv Stat, at Large, p. 773 ;) July 20, 1840, (v Stat, at Large, p. 394;) March 3, 1843, (v Stat, at Large, p. (249) 750;) August 11, 1844, (ix Stat, at Large, p. 276;) July 29, 1850, (ix Stat, at Large, p. 442;) and by various other inci- dental provisions of law, duties are imposed, and rights conferred on this class of public officers, under the different statute names of con- suls general, consuls, vice-consuls, commercial agents, vice conunercial agents, and consular agents. But all these acts do by no means exhaust the subject. On the contrary, the important act of 1792 contains a declaratory provision, which is to be understood as implied in all other acts of congress, as follows : "The specification of certain powers and duties herein to be ex- ercised or performed by the consuls and vice-consuls (or other con- sular officers) of the United States, shall not be construed to the ex- clusion of others resulting from the nature of their appointments, or any treaty or convention under which they may act." (Sec. 9.) 517 Vol. VII, p. 242 (GUSHING) So that, outside of acts of congress, the functions of consuls are indicated, and their duties and rights defined, first, by many general treaties, conventions, and consular conventions, entered into between the United States and other sovereign powers. Then, like other executive officers of the United States, consuls are subject to regulations issued by the proper head of department. (See Henshaw's Manual, p. 122; Gratiot v. United States, iv Howard's R.. p. 80; United States v. McDaniel, vii Peters, p. 1; Aldridge v. Williams, iii Howard, p. 9.) In addition to which, they possess, by the law of nations, many functions, rights, and privileges, other than such as are defined by convention, by legislative act, or by regulation. But their appointment remains unchangeably one of the organic powers of the executive, derived from the constitution, not from any act of congress. In illustration of which is the fact, that, in the course of the first three years of the administration of President Washington, and prior to the enactment of the first act of congress on the subject, con- suls were duly appointed and commissioned, mostly during the sit- ting of the senate, but some in its recess, for the ports or islands of Canton, Madiera, Liverpool, Dublin, Bordeaux, Nantes, Rouen, His- paniola, Martinique, Bilbao, London, (250) Surinam, Santa Cruz, Libson, Morocco, Copenhagen, Bristol; and vice-consuls for Cowes, Marseilles, Hamburg, Havre-de-Grace, Fayal. It is impossible for me to doubt, therefore, that the only effect of the new act in this relation is to say, that as to such consuls or commercial agents as shall, on the day prescribed, be lawfully in office at the respective places mentioned, the rate of compensation per annum thereafter shall be such as the act allows. The president may appoint new consuls at any of the places mentioned on that or any other date, if he sees fit, because this the constitution empowers him to do; but this act neither empowers nor requires him to do it: all which in this relation it enacts is rate of compensation for "con- suls" and " commercial agents" at certain places, whenever the same shall be, or may have been, appointed ; that compensation to take ef- fect on the day defined by the act. Further to show that this act cannot be reasonably construed as intending to require the president to do what the constitution, on considerations of public policy, has intrusted to the sole discretion of the executive, may be mentioned the clause of the act which says, that the president shall appoint a "consul" at Port-au-Prince. This, if done, would have the effect, according to international usage, of placing the Haytien empire in diplomatic relation with the United 518 OPINIONS OF ATTORNEYS GENERAL States. It is not presumed that such was the purpose of the law- makers ; yet such is the necessary effect of the law, if the words * ' shall appoint" are mandatory in operation. If they are mandatory in any case, they are in all : if not mandatory in one case, they are so in none. Another illustration, which this act itself affords, of the neces- sity of leaving the power of determining when and at what places to appoint officers of this class, and of what rank to appoint them, where the constitution placed it — in the hands of the executive — is the provision for establishing "commercial agents" in five of the colonies of the Netherlands. This provision has apparent reference to the fact, which once existed, namely, the refusal of the Nether- lands to receive consuls in their colonies. But this fact no longer exists; for the (251) convention of January 22, 1855, between the United States and the Netherlands, and the ratifications of which have been exchanged, stipulates for the admission of consuls general, consuls, and vice-consuls, in all the open ports of the transmarine possessions of the Netherlands. Before passing from this part of the act, it may be well to ob- serve that the phrase in the 4th section, which forbids certain con- suls "to transact * * business either in their own name or through the agency of others," cannot be taken literally; for if so, the con- sul could not have any private interests, or even a household, all Avhich involve the transaction of business. These words must be con- strued in reference to the mischief, which the history of the acts show they were intended to remedy, namely, "trading as a mer- chant," which, undoubtedly, the provision prohibits. In the 6th section the same phrase of undue generality is foimd, but there it is employed in the sense of permission, and therefore does not need to be carefully scrutinized. In forbidding consuls "to transact business," that is, "to trade as merchants," the 4th section further says, "under the penalty of being recalled and fined in a sum not less than two thousand dollars." The phrase here used, — "under the penalty of being recalled," like that in the 12th section requiring the consul to collect and ac- count for certain fees "imder the penalty of being removed from ofiice," is of dubious legality. I do not think dismissal from office can be enacted by statute as penalty. "What court is to try and judge? Is the provision designed for the case of impeachment? It does not say this. Does the act mean to dictate to the president when to remove a public officer? That cannot be. The power of removal, and the absolute right to exercise it according to his con- science, like the power of appointment, he holds by the constitution. 519 Vol. VII, p. 242 (GUSHING) Besides, it is neither convenient nor according to the analogies of our political system, to consider removal from office the infliction of a legal penalty. A penalty is the result of a legal process. Dis- missal from oflfice belongs to a different class of administrative or political considerations, resting in the mere executive discretion of the president. (252) On the whole, this provision of the statute must be deemed inexecutable. No provision is made as to the process by which this fine of two thousand dollars is to be recovered. In the case of another violation of duty, the 20th section indicates the remedy by indictment under the act of July 20th, 1840. Possibly the same remedy would apply here, as the act referred to makes consuls and commercial agents indictable "for all malversation and corrupt conduct in office." (v Stat, at Large, p. 397.) I should be more confident on this point, but for the fact of the present act singling out the misdemeanor of the 20th section is indictable under the act of July 20, 1840, and thus raising negative inference as to the applicability of the penal process of that law to the other new definitions of misconduct in office. Possibly the present fine, if not recoverable by indictment, might be reached by an action of debt in the name of the United States. The foregoing observations afford a reply to several of the points of inquiry verbally indicated by you, and also to three others of the questions of the written memorandum of the 17th ultimo, namely : Can consuls not newly appointed or reappointed at the places named in the act, receive the salaries therein affixed to said places respectively ? Can the president appoint or retain consuls at places where there are now consuls, but with no provision in the act for consuls at such places? Can the president, by and with the advice of the senate, appoint consuls at places where there are now no consuls, and with no pro- rision in the act for consuls at such places? To each of these questions, my reply is in the affirmative. The act has operation, in respect of salary, as to consuls at the places named, without their being reappointed; such as have been lawfully appointed continue in office imtil their present commissions are withdrawn; and the president can, with concurrence of the senate, appoint consuls at any place whatever, whether they be mentioned in the act or not. The appropriation act of the last session of congress contains C253) an item of two hundred and seventy-one thousand seven hun- dred and fifty dollars "for the consuls of the United States." All 520 OPINIONS OF ATTORNEYS GENERAL the observations concerning the similar appropriation for envoys, in the same act, apply to this appropriation for consuls. The next question is, — Can vice-consuls and consular agents be appointed after this act goes into operation ? Undoubtedly. The act provides for consuls or commercial agents at certain places; but does not contain any phrase, which, either expressly or impliedly, forbids the appointment of consuls or commercial agents at other places, or the appointment of vice-consuls or consular agents. If it did, the prohibition would be without ef- ficacy. Instead of even professing to do this, although the act pro- vides places and salaries for consuls and commercial agents only, yet, in the 9th section, it expressly recognizes, by name, and regulates, in some respects, vice-consuls and consular agents. While so men- tioning and regulating them, it leaves imtouched the law, whatever it is, by which their existence and their functions are determined. Next comes the question, — What is the operation of this act in respect to fees, so far as regards the consuls and commercial agents to whom the act gives salary ? In order to answer this question satisfactorily, it becomes neces- sary to analyze the various pertinent provisions of the act. In the first place, it does not contain any general clause of re- peal. At its close, instead of the usual phrase, — "All acts or parts of acts inconsistent herewith are hereby repealed," — it says, — "The provisions of this act to take effect," on a certain day, "any law or laws of the United States to the contrary notwithstanding." Of course, the section leaves the question, of what the act repeals, to depend on other parts of it, and its general tenor. In the second place, the act in its general tenor is affirmative ; and the established rule of law in this respect is, that "an affirmative statute does not repeal a precedent affirmative statute; and if the substance be such that both may stand together, they shall have a concurrent efficacy." (Dwarris on Sta- (254) tutes, p. 474.) Of course, on the point whether any provision of this act repeals by im- plication of identity of subject matter any provision of previous acts, it will be necessary to consider whether the two provisions com- pared are incapable of concurrent efficacy. If the act professed to revise the question of consular regula- tion as a whole, then it might by implication repeal former acts. (Bartlett v. King, xii Mass. R. p. 548; Commonwealth v. Cooley, x Pick. R. p. 40.) But this it does not undertake to do. And law does not favor repeal by implication. (Snell v. Bridgewater Manu- facturing Company, xxiv Pick. p. 296.) Hence, a later statute on a given subject, not repealing an earlier one in terms, is not to be 521 Vol. VII. p. 242 (GUSHING) taken as a repeal by implication, unless it is plainly repugnant to the former, or imless it fully embaces the whole subject-matter. (God- dard v. Barton, xx Pick. p. 410.) In the third place, the act refers to, and amends expressly, or adopts for new purposes, parts of previous acts in several instances; as the acts of February 28, 1803, and of July 20, 1840, in the 19th section, and that of April 14, 1792, in the 21st. Of course it does not in other respects repeal those acts. Finally, it contains provisions expressly repealing particular things assumed to be allowable by previous acts: as allowances of "clerk hire and office rent," in the 26th section; "fees for the signing and verification of passports," in the 13th; and "commissions for receiving or disbursing wages or extra wages of discharged sea- men," in the 14th. Such cases of express repeal in a statute, espec- ially of certain individual things of a class, are the ordinary im- plication that all other things of the same class remain unrepealed. Bearing in mind these premises, let us now see what the 12th section of the act says on the subject of fees of consuls and com- mercial agents. Its language, we have seen, is very peculiar, as follows: "Sec. 12. And be it further enacted, "That it shall be the duty of consuls and commercial agents to charge the following fees for performing the services specified, for which, under the penalty of being removed from office, they shall account to the (255) govern- ment at the expiration of every three months, and hold the proceeds subject to its drafts: "For receiving and delivering ships' papers, half cent on every ton, registered measurement, of the vessel for which the service is performed. "For every seaman who may be discharged or shipped at the consulate or commercial agency, or in the port in which they are located, one dollar; which shall be paid by the master of the vessel. "For every other certificate, except passports, — the signing and verification of which shall be free, — two dollars." This provision imposes, in terms, a special duty on "consuls and commercial agents," which is, to collect certain fees for the benefit of the government. Does this provision, in terms, forbid the receipt of any other fees? Undoubtedly not. Let us assume the case of some other fee, which "consuls and commercial agents" are now permitted by statute to demand, and reason upon it: for instance, the fees for talking charge of, and pay- 522 OPINIONS OF ATTORNEYS GENERAL ing, or delivering over, the effects of decedents, citizens of the United States, within their jurisdiction. The act of April 14, 1792, entitled ''An act concerning consuls and vice-consuls," contains the following provisions: "For the taking into possession, inventorying, selling, and final- ly settling, and paying, or transmitting as aforesaid, the balance due on the personal estate left by any citizen of the United States, who shall die within the limits of his consulate, five per centum on the gross amount of such estate. "For taking into possession, and otherwise proceeding on any such estate, which shall be delivered over to the legal representative before a final settlement of the same, as is hereinbefore directed, two and a half per centum on such part delivered over as shall not be in money, and five per centum on the gross amount of the residue." Is this fee withdrawn by the 12th section of the present act? I think not. There is no phrase in it which hints at such repeal. Was it the design of the section to require the collection of certain fees, and those only? If so, the section does not say (256) this: it contains not a single word of general exclusion or prohibition. Nor can it by any established rule of construction be held to imply this; for the enactment that it shall be the duty of "consuls and commercial agents" to collect and pay over to the government certain particular fees, is perfectly compatible with their lawfully demanding and receiving other fees, whether the same be or not specified as the property of the government. Finally, in another part of the act, there is a provision which, though out of its natural place, and thrown in where it is incidentally as it were, yet must be held to settle this point. The 21st section has for its main object to amend the act of April 14, 1792, so as to make it the duty of the consul, in settling the estate of a decedent, to observe any directions regarding the same, which the deceased may have given "by will or other writing;" and, if such were the direction, then to hand over the effects to any appointee of the deceased; in which case, to the end of protecting the property from local interference, the consul is "to place his official seal" on it, and to break and remove the same only at the request of the appointee: "he, the said consul or commercial agent, receiving therefor two dollars for each seal." Appended to the enactment of a particular fee in a particular case is the following general pro- vision : "which, like all other fees for consular service, including all charges for extension of protest, as also such commissions as are al- lowed )by existing laws on settlement of estates of American citizens 523 Vol. VII, p. 242 (GUSHING) by consuls and commercial agents, shall be reported to the treasury department, and held subject to its order." This enactment, which seems to have come in by amendment, or at least without recollection of the tenor of the 12th section, where it properly belongs, completes the proof, that the act does not repeal nor modify any fees or commissions, except those which it expressly mentions in that sense, and that it leaves all others to stand on ex- isting laws or regulations of the department. It remains to consider how the act operates on the fees for con- sular service receivable by consuls and commercial agents. (257) By the 12th and 21st sections, together, it is made the duty of consuls and commercial agents mentioned therein to hold the proceeds of fees for consular service subject to the order or draft of the government. What shall be done with the proceeds, by the government, the act does not determine. Of course, it passes to the account of the unappropriated miscellaneous funds of the treasury. The punishment, indicated for failing thus to account, is "the penalty of being dismissed from office." We have seen that this penal provision is without possibility of legal effect. But another statute supplies the requisite sanction. The act, re- quired to be performed, is of such nature as to bring the consuls and commercial agents, of whom it speaks, within the purview of the act of August 6, 1846, for the better organization of the treasury, and for the collection, safe keeping, and disbursement of the public revenue ; by one of the sections of which, the refusal of any person to pay any draft lawfully drawn on him for public money in his hands, is declared to be an indictable felony, (ix Stat, at Large, p. 62.) In this case, also, as in that of the penal provision of the 12th section, we may recur in aid to the act of April 14, 1792, and to the bond, which that act requires of consuls, conditioned for the true and faithful discharge of the duties of their office according to law, (i Stat, at Large, p. 256.) But what are "all other fees for consular service," which, by a seeming afterthought of the act, as incidental to a secondary mat- tor of regulation, and with iteration of enactment of the words of destination of the 12th section, are thus added to the fees, which con- suls are to exact hereafter as collectors for the government ? It is obvious that many fees, which it has heretofore been for the interest of the consul to demand on his own account, he must now demand as a mere public duty for the sole benefit of government. On this point the government, if, in pursuance of the under- stood theory of the act, it aims, by fees collected, to be indemnified 524 OPINIONS OF ATTORNEYS GENERAL for its outlay in the salaries, is brought into immediate conflict of interest with every consul, and with every person (258) transacting business with any consul. The merchant or ship master will, of course, desire to pay the least he may; and, while the consul will have no personal inducement to be critical in exacting "fees for consular service, ' ' he will incline to inquire what fees, if any, are not consular, and so not the property of the government. In determining this point, we have to collate all those discon- nected parts of the act, which are correlative in sense, to consider them in subordination to the general theory of the act, and to com- pare them with previous laws, and with the regulations of the depart- ment. I venture to submit only some hasty observations on the subject. To begin, — the tenor of the act, as we have already seen, except in the two or three cases where it makes change expressly, leaves untouched the question of the particular services for which fees are to be charged. I now add that it leaves untouched the existing regulations of the department in such matters, and its power to make pertinent new regulations. The 12th section takes up the tonnage duty, which is to be levied hereafter, in place of a fixed fee, for receiving and delivering a ship's papers ; the fee of one dollar for every seaman discharged or shipped ; and the fee of two dollars "for every certificate;" — and gives them to the government. The 21st section disposes of a prescribed fee of two dollars for placing the official seal in certain cases on the property of de- cedents, and removing it when duly requested, and "all other fees for consular service, including all charges for extension of protest, as also such commissions as are allowed by existing laws in settle- ment of estates : " all of which are given to the government. The 12th section forbids making any charge for the signing and verification of passports. In case of a revision of the table of fees, this item deserves re- examination. I think, under the old system, citizens of the United States, travelling in foreign countries on business or pleasure, as a general thing, received from consuls more than (259) they have in return ; and that complaints on this point might have come with more grace from the consuls themselves. Now, at any rate, when consuls are to receive salaries from the government, but to collect fees with which to reimburse the public treasury, it is not easy to see why the whole cost of the consular establishment should be cast 525 Vol. VII, p. 242 (GUSHING) on merchants and ship o\Naiers, to the exemption of wealthy travellers who may happen to have occasion for the services of consuls. The 14th section prohibits commissions on receiving or disburs- ing: the wages of discharged seamen, or money advanced to seamen in distress. The 26th section, in effect, prohibits any allowance to consuls on account of "salaries for clerk hire and office rent;" but this ap- plies only to a few exceptional cases, for which provision has been made in acts of appropriation. I have compared these provisions of law with the table of fees now charged at one of the largest ports of commerce, and perused the remarks and queries of the consul thereon, as communicated to me by your letter of the 1st instant, and submit the following annota- tions: 1. In the terms of the 12th section, a fee of "two dollars" is to be exacted, in behalf of the government, on "every certificate;" wliieh must be construed to mean, — certificate under the seal of the consulate. 2. The record to be kept by the consul seems to be an official duty, and of course the fees therefor belong to the government. 3. The making of copies is a clerical, not a "consular service," and whatever may be paid for copies belongs to the consul. 4. Drawing out a power of attorney, bottomry bond, will, or any similar service, is a notarial, not a consular act; and therefor only the certificate upon it would go to account of the government. 5. I should have said the same of extending a protest, but for the plirase in another part of the act, — "a book for the entry of protests, and in which all other official consular acts likewise shall be recorded." — which seems to cover the fact of extending a protest, and so give the fee to the government. (260) If so, there should be a regulation scale of fees according to the length of the protest, as in England. 6. No "commissions" appear to be disposed of by the act, except on wages advanced to seamen, which are forbidden, and on the estates of decedents, which go to the government. 7. I think the fees collected for the government should be in our own coin, or its representative value in exchange. Without extending these comments, it will suffice to suggest, whether it be not expedient that the whole subject of consular fees, which the present act leaves in its previous indefinitene.ss, compli- cated by the new provisions, should now be deliberately revised in the consular bureau of the department. 52 R OPINIONS OF ATTORNEYS GENERAL Those acts of a consul, for which compensation was charged in the old system, consisted of two great divisions, namely : 1. Fees taken in respect of matters wherein the consul's inter- position is required by law, such as the custody of ships' papers, dis- charge of seamen, payment of wages or relief -money, certificates of invoices and other acts in aid of the revenue laws, and custody of the estates of decedents. 2. Fees taken in respect of matters wherein the consul's inter- position is voluntary on the part of the person calling for the ser- vice, such as the extension of protests, the preparation of conveyances, arbitration, or bottomry bonds, attending sales, attesting signatures, and furnishing copies of documents. This division, again, is subdivisible into voluntary acts, which are consular, and others which are purely clerical or notarial: which distinction is expressly recognized by the regulations of the de- partment. (Consular Instructions of 1838, ch. viii.) To meet all these conditions of the question, other governments, in adopting the system of salaries for consuls, have been compelled to issue very explicit and stringent regulations to secure the full col- lection of the fees due the government, (See the British ''Order in Council" of May 1, 1855, London Gazette, May 11, 1855; and the French, "Ordonnance sur les Droits de Chancellerie," 6 Novembre, 1842, in De Clerq, Formulaire, p. 50.) How very imperfect our whole system is in the matter of these and other details, will be fully appreciated on a perusal (261) of the contents of De Clerq 's "Guide des Consulats" and his "Formli- laire." Remember, it is certain specified fees which the act of congress makes it 'Uhe duty" of the consul to collect. Is it his duty to col- lect other fees? Unless his duty in this respect be more thoroughly defined, it is to be feared that comparatively little of those fees, which are uncertain in amount, and for voluntary service, or ser- vice the demand for which is voluntary, will or can be compulsorily collected. The acts of congress do not contain a table of commissions and fees. They prescribe certain fees applicable to some few only of the acts w^hich a consul now performs. All other fees, including those of the largest production, stand on usage and regulation, and re- quire to be reconsidered, in connection with other parts of the new system proposed by congress. Next comes another most embarrassing question. The act does not profess to abolish vice-consuls and consular agents; on the con- trary, it recognizes their continued existence. How are these to be 527 Vol. VII, p. 242 (GUSHING) paid? No salan- is allowed them. Possibly it was the original thought of the act to consider a vice-consul or consular agent as the mere deputy, or locuyyi tcneyis of the consul, and to be paid out of the salary of the latter. But the act does not say this, TVhen a consul is absent from the consular residence on leave, it may be that the substitute, who supplies his place, ought to receive the salary, or a part of it. But the act does not so determine. To the contrary of this, in saying, in substance, that, if he be absent with permission of the president, his salary, — which if he belong to the class of consuls forbidden "to transact business," we may assume to constitute his means of subsistence, — shall continue, it implies that the salary is not to be enjoyed by his deputy. Perhaps the president may order, as the condition of leave to a consul, that he shall provide and pay a deputy. It is not the general rule, however, in other branches of the public service, that a salaried officer, temporarily ab- sent from duty on express leave from the president, pays for the service of a substitute during such absence. The person, thus left by a consul at the consular residence (262) in ad interim charge of the consulate, sometimes bears the name of "consular agent;" but that designation better describes another class of persons, namely, an agent to reside at some other port or place de- pending on the consul. It would seem to be more exact to call a substitute employed by the consul on the spot his "deputy;" the person employed to fill the place temporarily in his absence, "vice- con.sul;" and to apply the name "consular agent" to consular of- ficers employed in outposts within a given consular circumscription. Perhaps the usage of the department, in applying the name "consular agent" to the suppleant of an absent consul, officiating as consul interino in the absence of the consul propietario, grew out of the supposition that the vice-consuls, by inference from the act of 1792, or otherwise, could only be appointed by nomination to the senate: which inference is negatived by the tenor of treaties and of the present act. Of course, no obstacle exists to the systematic use of the term "consular agent," according to its proper acceptation. Numerous ports exist, which are more or less remote from the location of any consul, but in which, nevertheless, consular services are needed on the spot. Must the consul in every such case go there for the special occasion ? If so, he incurs expenses, and leaves his o^Ti port without his presence. On the other hand, if the consular servir-es are not such as must of necessity be performed on the spot, it will be inconvenient and expensive for the shipmaster to be com- pelled to leave his ship, and, perhaps, with his officers and men, as 528 OPINIONS OF ATTORNEYS GENERAL in extending a protest for instance, to repair to the place of residence of the consul. Under the old system, the convenience and economy of all parties were consulted by the appointment of a vice-consul or consular agent for such outports, as at Nuevitas, Cienfuegos, and Manzanilla, in Cuba; such agent collecting the fees, and retaining the whole or part as compensation for his services, and transacting the business under the direction of the consul. (Con. Instructions of 1838, chap, iv, s. 7.) But the future relations of this part of the general subject- matter seem to have escaped the vigilance of congress. The (263) act does not require the consul to travel, at his expense, to and fro between the place of his consular residence and the outposts of his consular circumscription ; it does not require him to divide his salary with local vice-consuls or consular agents; it makes no provision whatever for the case. All these contingencies are of ordinary occurrence, and are pro- vided for in the laws and regulations of other governments paying salaries to consuls, as, for instance, those of the French empire. Besides which, the act does not profess, in its enumeration of consuls, to be exclusive; there is no such phrase in it as "the fol- lowing a7id no other;" it abolishes no consulates; it neither in fact nor in pretension deprives the president of the power to retain con- suls at places where they now exist, but which are not named in the act, and to appoint them where they do not now exist; as, for in- stance, to retain the consul at Bilbao or Valencia, at Archangel or Helsinfors, or the commercial agent at Larache, or appoint a new one at the Moluccas, at Setubal, at Trapani, at Newport, or at Ber- gen. But no salary is allowed by the act to any such consul. How the act shall be construed in this respect, is not a matter of light moment; for the consuls and commercial agents of the act do by no means cover all the seaports and centres of commerce and resort throughout the world, which are visited by our merchant ships and merchants, or which, in other respects, need the presence and service of some consular representative of the United States. It certainly was not the intention of the act to cripple the com- merce of the country by depriving it of the benefit of vice-consuls and consular agents, or of consuls, at any place where, in the judg- ment of the executive, such an officer is needed. Doubtless, at its next session, congress will, in its wisdom, supply these deficiencies by suitable supplemental legislation. Meanwhile, we must construe the act as it stands. I think the only admissable interpretation of it, as it stands, is 529 Vol. VII, p. 242 (GUSHING) to conclude that the consular officers, of whatever denomination, for M'hom salaries are provided by the act, are to pay over consular fees which the}' receive; and that all other consular (264) officers, not thus provided for, have the right to retain all of the lawful fees, which the several acts, including this, and the regulations of the depart- ment, allow them to demand. This construction involves the inconvenience of some of the con- sular officers being compensated by means of fees, and others by salaries; which inconvenience, however, is of little moment, and need be of but temporary duration, because easily remediable by congress. Meanwhile the change of relative interest, which the new state of facts will introduce between consuls and vice-consuls, or consular agents, seems to demand some corresponding regulations of the de- partment. It may be proper to observe, in this connection, that the provision of the act which requires the consuls mentioned in it to pay over the fees which they collect, cannot apply to the judicial fees receivable by American consuls in China and Turkey, which are not "consular fees," and cannot be considered by this act as withdrawn from the special destination ascribed to them by the 17th section of the act of August 11th, 1848, giving certain judicial powers to consuls of the United States in China and Turkey, (ix Stat, at Large, page 276.) Indeed, the consuls at the Barbary ports, and in general in other Mohammedan countries, must not be confounded, in respect of functions or of regulations, with the consuls established in the countries of Christendom. Their condition is referable to peculiar doctrines of the law of nations; and they are governed in many re- spects by particular treaties and acts of congress. (See "Wheaton's Elements, by Lawrence, p. 167, note.) In my communication of the 25th ultimo, suggestions are made, in the relation of public ministers, as to a clause in this act, which provides, among other things, that no other than citizens of the United States who are residents thereof, or who shall be abroad in the employment of the government, shall be appointed as diplomatic officers, or as "consuls or commercial agents," and that no other than citizens of the United States shall be employed as "vice-consuls or commercial agents," or as clerks in the offices of either. I reiterate, here, the opinion, that this provision has effect as (265) recommendation merely, and no more. The president, by the advice of the senate, has the sole and complete power to appoint con- suls. In respect of clerks, the provision is one of impossible execution. 530 OPINIONS OF ATTORNEYS GENERAL How are consuls, and clerks of consuls, capable of speaking and writing, in every case, the language of the country, to be found among citizens of the United States? The government might pro- duce such persons, by instituting the grade of "eleves consuls;" but it has not done this; and it is not the duty of consuls to provide for the education of competent linguist clerks, citizens of the United States. Meanwhile, how is the public business to go on? AVhat is to be done by the consuls in France, Spain, Portugal, Netherlands, and their colonies; in Germany, Denmark, Russia, and in all the coun- tries of Dutch, French, Danish, Spanish, Portuguese, America? Consider, also, those consuls at places where a small salary only is allowed, not sufficient to pay clerk hire, perhaps, and where the consul is permitted to transact business, without which he could not live. He hires and pays his own clerk. Is he forbidden to em- ploy as clerks the only persons whom it is morally possible for him to employ, and whom he most needs in his business? That is the apparent effect of this provision ; and of necessity, therefore, it must be treated as directory only, and not mandatory, on the consuls. As to the consuls themselves, however expedient it be, in general, to fill the consulates and commercial agencies with citizens of the United States, yet places exist where consular services are necessary, but where no American resides, or can be tempted to reside by the grant of a mere commission as consul, or appointment as consular agent. Surely, if the government absolutely needs to have a certain service performed in a particular place, and there be no American to perform it, the service may be performed by a person not Amer- ican. To assume the contrary, is to push considerations of mere policy to the impolitic result of rendering the performance of the public service impossible. Suppose that, along the whole coast of Norway, there can be no consuls, citizens of the United States. Are we therefore to (266) understand, that all the acts of congress, which assure consular aid to shipwrecked or distressed mariners, have become a nullity? That is the practical operation of this provision. "When the act says, in words, that the government shall not em- ploy as consul or consular agent any person who is not a citizen of the United States, what it says in effect is, — when a citizen of the "United States happens, while abroad, to stand in whatever need of consular assistance, he shall not have such assistance, however great his necessity, because no American resides there to be made consul or consular agent. What would be the legal operation of an act of congress, enacting directly, that no citizen of the United States abroad, who is in dis- 531 Vol. VII, p. 242 (CUSHINa) tress, or who needs the service of a notary or counsel learned in the law, shall be relieved or served unless he employs another Amer- ican, whether such American exist or not? Cases occur, also, in which the fittest person for the vacant con- sulate at a given place, and the only person who can be induced to accept, is a merchant temporarily residing there, although by birth and education a citizen of the United States. Is that person, by such abode in a foreign country, disfranchised? That the general disability enacted by the words, — "no other than citizens of the United States who are residents thereof," — comprehends residence abroad though retaining citizenship, is proved by the general structure of the phrase, which requires residence at home, in addition to citizenship, as the qualification of appointabil- ity. That such "residence," made the condition of disability, in- cludes temporary absence from the United States, such absence as does not lose domicile even, is proved by the only exception to such disability, which consists of those who shall be abroad in the employ- ment of the government ''at the time of their appointment." How much residence abroad disqualifies? How much at home qualifies? A year, a month, or a day ? "A citizen of the United States, not resident thereof at the time," signifies, in the context where it here stands, one who is in Paris, London, Rome, six months, one month, for the pur- (267) poses of instruction or business. Such person is capable of being appointed Chief Justice of the Supreme Court or elected President of the United States. Is he incapable of "being appointed" to a mere consular agency? The argument of bare legal construction stands thus: — Laws can be executed only through the instrumentality of agents of execu- tion. There is a body of laws for the protection of the rights of citizens of the United States in foreign countries, the lawful agents for executing which are consuls. Not to appoint consuls at the re- quisite places would be the effectual nullification of those laws pro tanto, just as the omission to appoint judges, marshals, commissioners, and other officers of the law, in a given district of the United States, would have the effect, in that district, to nullify the acts of congress, and produce the suspension therein of all rights and remedies based on the constitution of the Union. If the obstacle to such appoint- ments consist in the words of a particular statute, which, if construed BH mandatory, have all the consequences of annulment to the laws in force, we necessarily conclude that congress did not intend such words in a mandatory sense. For all the laws in pari materia are to 532 OPINIONS OF ATTORNEYS GENERAL be construed together, so as from the whole mass to collect the legal intendment of congress. In deference to this recommendatory enactment in the nature of mere departmental regulation, or to considerations of public policy, the president, in making appointment of a citizen, may look to the fact where he happens at the moment to be ; but he has, in my opinion, absolute right to select for appointment without regard to that cir- cumstance, subject always to the approbation and consent of the senate. It is the constitutional duty of the president to take care that the laws be faithfully executed. It is his constitutional right to nominate, and, with the advice of the senate, to commission, the agents by whom the laws are to be executed. If he cannot find fit agents of one description, he may, nay, he must, employ others, or be false to his high obligations as the Executive of the United States. You suggest a question arising on the 14th section of the act, which forbids any consul or commercial agent to be directly or (268) indirectly interested in any "profits derived from * * * sending home" discharged seamen or seamen in distress. The act of February 28, 1803, section 4, enacts that it shall be the duty of consuls "to provide for the mariners and seamen of the United States who may be found destitute within their districts re- spectively, sufficient subsistence and passage to some port in the United States, in the most reasonable manner, at the expense of the United States;" and penalties are enacted to compel masters of ves- sels belonging to the United States to receive such seamen, on re- quest of the consul, and transport them to the United States, receiv- ing as compensation "not exceeding ten dollars for each person." (ii Stat, at Large, p. 204.) Now, what is to be done in the case of ports (and such ports exist) where it happens that many seamen are discharged from whal- ing or other vessels, and no reasonable or direct means exist for trans- porting them to the United States, except in a vessel belonging to the consul, he being of the class allowed to transact business 1 We cannot dispose of this question by the rule that posterior laws repeal prior incompatible ones. The act of 1803, and the acts in amendment of it, are not repealed by the present act; on the contrary, they are expressly recognized as in full force, and especially in this particular matter of the duty of consuls towards seamen of the United States. I suppose the expression in the act, — "profits derived from • * * sending home" seamen, — refers to the ten dollars paid by the government for every destitute seaman transported to the United 533 Vol. VII, p. 242 (GUSHING) States. This transportation, with the maximum price allowed, is a burden to the shipo%vner, instead of a profit. If the prohibitory provision of the act be applied without exception, it will in effect re- lieve the shipowner in many cases, but involve inconvenience to mari- ners, tmd additional expense to the United States. I think this provision, which belongs by its nature to the class of matters of departmental regulation, must be held in law to be directory only, not mandatory, and so treated by the department. (269) Question has been suggested, also, as to whether the dis- cretion given to consuls, in certain cases, by the act of July 20, 1840, regarding the amount of wages to be exacted of the sliipmaster when the seamen are discharged in foreign ports, still continues. I think it does: the present act does not seem to contain anything affecting that point. There is a provision of the act, referred to already in another relation, namely, the main one of the 21st section, which demands consideration. It is in the following words: "The act of April 14th, 1792, concerning consuls, &c., is hereby so amended that, if any American citizen dying abroad shall, by will or any other writing, leave special directions for the management and settlement by the consul of the personal or other property which he may die possessed of in the country where he may die, it shall be the duty of the consul, where the laws of the country permit, strictly to observe the directions so given by the deceased. Or, if such citi- zens so dying shall, by will or anj' other writing, have appointed any other person than the consul to take charge of and settle his affairs, in that case it shall be the duty of the consul, when and so often as required by the so-appointed agent or trustee of the deceased, to give his official aid in whatever way may be necessary to facilitate the operations of such trustee or agent, and, where the laws of the country permit, to protect the property of the deceased from any interference of the local authorities of the country in which he may have died ; and to this end it shall also be the dut;; of the consul to place his official seal on all or any portion of the property of the deceased as may be required by the said agent or trustee, and to break and remove the same seal when required by the agent or trustee, and not otherwise." In the execution of this provision, consuls will need to exercise much discretion and care. "We are to presume this enactment adds to, or otherwise changes, the pre-existing law; and the question is, in what respect? The provisions of the act of April 14, 1792, in relation to the matter, are, that, in certain ca-ses, if any citizen of the United States 534 OPINIONS OF ATTORNEYS GENERAL die abroad, the consul, within whose consulate it (270) happens, shall take possession of all "personal estate" of the deceased in the coun- try where he dies, inventory it, sell it, collect and pay local credits and debts, and remit the balance to the treasury of the United States, to be held in trust for the legal claimants. The contingencies, in which the consul may thus collect the as- sets of a decedent, free them from local incumbrance, and remit them to the treasury, are three, namely : 1, If the deceased shall have left no "legal representative" within the consulate; 2, no "partner in trade;" and 3, no "trustee by him appointed to take care of his ef- fects." If, at any time before the collection and transmission of the as- sets shall have been completed, the "legal representative" of the de- ceased appears, then the authority of the consul in regard to the estate ceases, and the management of its passes into the hands of such legal representative. The new act provides, in the first place, that if the deceased shall "by will or any other writing leave special directions for the man- agement and settlement, hy the consul, of the personal or other prop- erty which he may die possessed of in the country where he may die, ' ' it shall be the duty of the consul to observe those directions. The act does not say what consul; but, by collation with the pre- existing law, we may construe this to mean the consul within whose consulate the party dies. The act in effect assumes further, that the consul is to take possession of "personal and other property." That is to extend the jurisdiction oi the consul beyond what he previously possessed, and into doubtful regions. It is perfectly clear that nothing in the previous acts empowers the consul to sell any real estate of the deceased; nor can the pro- visions of the present act communicate such power, even if directed by will ; for the will would have to be proved and allowed as such in order to pass real estate. Nor can the act be construed to intend what it apparently says, that in the "management and settlement" of the estate, the consul is to observe any such directions as the de- ceased may have left "by will or any other writing." If there be a will, or any writing (271) possessed of testamentary value, there will be an executor, or administrator with the will annexed, and he must settle the estate according to law. I presume the sole effect of this part of the section to be, that, in the performance of such acts regarding the estate as the consul may, by virtue of the act of April 14, 1792, lawfully perform, namely, taking the custody of the property, preserving it from waste, collect- 535 Vol. VII, p. 242 (GUSHING) ing credits, paying local debts, and selling the personal estate for transmission to the treasury, the consul shall, in the absence or non- appearance of the executor, co-partner, or other "legal representa- tive" of the deceased, observe such directions as the latter may have given him as to such mere provisional acts of consular intervention in the estate. The new act provides, in the second place, that "if such citizen on dying shall, by will or any other writing, have appointed any other person than the consul to take charge of and settle his affairs," as "agent or trustee," then the consul shall officially aid such agent or trustee in his duty, and shall, so far as he lawfully may, secure the property of the deceased to such agent or trustee, as against the interference of the local authorities. This enactment, like the foregoing one, must be understood as having reference only to such acts of a lawfully appointed "agent or trustee of the deceased," as any such "agent or trustee" may per- form in the absence of the "legal representative" of the deceased, who, on his appearance, will supersede, not only the consul, but any such provisional agent ; and in case of controversy between such agent or trustee and the legal representative of the deceased, it will be the duty of the consul to aid the latter, to whom the paramount and exclusive right to control the property belongs in all circum- stances. To undertake to carry the authority of the consul beyond this point, or in any other directions, would be to involve him in hazard- ous responsibility. A citizen of the United States is, in almost every supposable ease, a citizen of some state or territory of the United States, or of the District of Columbia. His private rights of property and of person depend, all but universally, on the law of his (272) state, of his territorj'-, or of the District of Columbia. No act of congress makes general provision for the forms of deeds or wills, the distri- bution of estates of decedents, the regulation of contracts, or other things of that nature in the affaires of a citizen of the United States. No act of congress can constitutionally do this in regard to the citi- zen of any state, whatever it may do as to the citizen of a territory, or of the District of Columbia. I, for instance, am a citizen of the United States, but a citizen, also, of the state of Massachusetts, whose laws govern my personal succession. In this respect, congress has no constitutional power whatever, except in some one of my special rela- tions to the federal government, as in the imposition of taxes, and in the other few and limited matters of federal resort. That general immunity from federal legislation in ordinary matters of private in- 536 OPINIONS OF ATTORNEYS GENERAL terest is my own imprescriptible right : it is also the sovereign right of my state. In like manner, it is the right of my heirs-at-law. I do not lose this right, nor do they, by my temporary absence from my state in public employment, or as a merchant, or traveller, or any other way, except such as may give me citizenship or local domicile in some foreign country, and thus place me and my personal rights, and those of my succession, under the jurisdiction of such foreign coun- try. These positions are the elementary law of the condition of citizens of the United States. Furthermore, it is the all but universally received principle of the international law private, that the real estate of a decendent goes to his heirs-at-law, and that his personal estate is to be distributed ac- cording to the law of his domicile. (Story's Conflict of Laws, ch. ix; Felix, Droit International Prive, p. 161, Phillimore on Domicile ch. i.) This rule cannot be changed by an act of congress; for its con- tinued existence, in so far as regards our o^vn citizens, is of the rights of the states. Now, this provision of the act, in requiring the consul to settle the estate of a decedent according to his directions "by will or any other writing," or to deliver up the property to any agent or trustee, whom he may have appointed "by will or any other writing," makes reservation of "the law^s of the country," and so, perhaps, by impli- cation, admits exception of the laws (273) of the decedent's domicile which, in pursuance of the law of nations, is respected by every coun- try in Christendom. But, after all, this law of the domicile is the great exception, which an act of congress cannot empower consuls to disregard, and which they will disregard at their proper peril. When the present act requires the consul to deliver up the es- tate of* a decedent, dying within his jurisdiction, to an appointee under his "will." if it mean his executor, that the consul may do; because by "will" is understood a valid testament, lawfully made and executed, by a person who is in all respects compos testandi: which question must be judged by the law of the decedent 's state. But, when the act proceeds to say that the consul must obey such directions, regarding the settlement and the disposal of the decedent's "personal or other property," as the decedent may have given him by "will or any other writing," and deliver it over to, and protect in the possession of it, the agent whom the deceased may have appointed " by will or any other writing," its injunction must be understood with the necessary legal reservations. Except in the mere temporary settlement, collection, and cus- tody of the property of a decedent, no agent appointed by will or 537 Vol. VII, p. 242 (CITSHING) otherwise, no public officer empowered by act of congress, can safe- ly venture to deal with a decedent's estate; for either that estate has been disposed of by lawful testamentary disposition to devisees or legatees, or it has become the property of the creditors of the de- cedent, or it has descended upon persons legally entitled by marriage or kinship ; and, in either case, if it bo personal property, it must pass through the hands of a duly appointed and judicially recognized executor or administrator. If we could suppose that the act intended to go beyond this, it would be necessary to scrutinize the force of the expression, — "will or any other writing." "Any other writing" signifies some writing, which has not the legal effect of a will, or it means nothing. In the phrase "-wall or any other writing," the "other" excludes a will. "Whether the alternative in this provision could have any possible effect on the estate beyond the legalization of acts of (274) tem- porary custody, would depend upon the question what those writings are, other than a will, by which a citizen of one of the states of this Union, who may happen to die abroad, can impart to his personal property, after his decease, a direction different from that prescribed for intestacy by the law of his state. What is that writing, not possessed of the legal effect of a will of personal assets duly executed by a competent person, by means of which a citizen of New York or of Louisiana, dying in Paris during a temporary sojourn there, can take his property out of the ordinary course of succession ? I think it behooves the consul to consider this question well, before he presumes to follow, in anything beyond the acts of custody, settlement, and collection prescribed by the act of April 14, 1792, directions of the decedent by writing not possessed in law of the force of a testamentary disposition, or directions of any agent of the deceased, however nominated, unless that agent be the duly appointed executor or administrator. Otherwise, the consul may be called to accoimt by some creditor of the deceased, or by a lawfully appointed executor of his, or by his family and heirs-at-law. In short, the consul should bear constantly in mind that he can- not as consul administer on the estate, nor as consul aid any other person in so administering, without judicial authorization; and that the whole extent of his consular authority is to guard and collect the as.sets 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 here pursuant to the law of the decedent's state. Finally, it may be proper to observe, as to the provision of the 2.5th section, by which the president is "authorized," if he see fit, to bestow "the title of consul general" upon any consul of the 538 OPINIONS OF ATTORNEYS GENERAL United States in Asia or Africa, that this provision is of doubtful tenor, if it be intended to imply that, without it, the president cannot, with the advice of the senate, at any time appoint a public officer of the class of consuls, and bearing the title of consul general. In illustration of this remark, we have the fact that, in the civil and diplomatic appropriation act of the last session of (275) con- gress, there is an appropriation for the salary of a consul general for the British provinces in North America, while the general act sup- poses that consulates of this rank are to be confined to Asia and Africa, (x Stat, at Large, p. 763.) In truth, the office of consul general may be given, as a mere titular designation, to imply rank; but it more properly signifies an office with special functions, well defined by the law of nations and public usage. The consul general superintends and directs, ac- cording to the instructions, general or special, of his government, the consuls within a particular jurisdiction or country. (DeCussy, Reglements Consulaires, p. 70; Moreuil, Agents Consulaires, p. 18.) Such an officer possesses utility, and particular application in foreign countries of extensive but definite circumscription, in which there is no proper diplomatic representative of the government, such as the several great European colonies, or other governments of that order, in Asia, Africa, and America. In all the countries of Europe, and in such of those of America and Asia as enter fully into our treaty system, we have, or may have, a minister, of whatever title, who is of course, by public law, superior in rank to consuls, and their medium of communication with the government. But, in the foreign dependencies of European powers, many of which are in themselves great states, with all the mechanism of local authority, and in sundrj' cases enjoying semi-independence under the administration of a gov- ernor, a captain general, or a pacha, it becomes necessary that some consular person should have power to communicate with the su- preme colonial or feudatory chief, in behalf of his collegues and his countrymen ; and on the consul residing at the seat of government will naturally devolve the functions, if not the title, of consul general. (De Clerq, Guide des Consulats, p. 28.) These considerations indicate that the selection and appoint- ment of a consul general, even more emphatically than that of con- sul, must belong to the treaty-making power in every political society, the power which initates in foreign relations, and which our constitu- tion has intrusted to the president in consultation with the senate. (276) Permit me to add, in conclusion, that the suggestions, which offi.cial duty compels me to make, in regard to so many of the provisions of this act, of careful discrimination between what is man- 539 Vol. VII, p. 242 (GUSHING) datory in a statute, and what is recommendatory only, are made with entire general defercnee and respect for the legislative will of con- gress. It happens continually, that phrases, of doubtful apparent signi- ficancy in the relation of constitutional powers, are found in the acts of congress. It would not be convenient to establish, as a rule, that the president must refuse to approve all such acts, however useful and just on the whole they may be. It is more convenient to follow the customary routine of the government, of reducing any such question- able phrase to its true constitutional value by construction, when the law comes to be construed and administered. Thus, when the statute says, that every collector of the customs shall have authority, with approbation of the secretary of the treasury, to employ inspeet- tors, (act of February 4, 1815, s. 5,) it must be construed to mean that the secretary may appoint and remove such inspectors; because the power, here thus in words given to collectors, can by the consti- tution be devolved only on the president or a head of department. (Mr. Legare's opinion, March 24, 1843, vol. ii, p. 1577.) So when, by the late convention with France, or any other, it is said, in words, that officers with consular functions and rights, vice- consuls, and consular agents, may be appointed by the consul, it means appointed by the secretary of state on the presentation of the consul, and removable by the same authority. By affixing his signature to an act or treaty containing such phrase, the president does not effect any change in the constitution. He cannot take constitutional power in virtue of any clause of an act of congress; nor can he so surrender it. The constitutional power of each of the three great departments of the government, respec- tively, belongs to the offices, not the officers, and cannot, by any act or words of theirs, be withdrawn from the permanent and pervading authority of the constitution. (277) We know how difficult a task it is, in remodelling any great department of the public service, to give apt expression to all which is inchided in the assumed theory of the act. It requires much circumspection and reflection to adapt successfully the new parts of the system to the old ones; many lacunae will remain to be filled up; some things will be disturbed, which it was not intended to touch; and when the judge or the administrator comes to deal with the act of legislation as a practical matter, and to review all its provisions in their relation to one another, and to the pre-existing provisions of law, he finds himself driven, by inexorable force of logic, into conse- quences of construction not anticipated by the legislator. These un- forseen consequences increase in degree or number in proportion as 540 OPINIONS OF ATTORNEYS GENERAL the legislative body indulges in the prevailing disposition to enter into the field of mere administrative regulations, instead of devoting its attention to the superior and more important and much preter- mitted duty of prescribing organic rules and generic principles of administration. These final reflections it seems not out of place to submit, on your account as well as my own, in explanation and apol- ogy of the many questions of construction, which have arisen, and could not fail to arise, on a measure of so much magnitude as that of remodelling the diplomatic and consular systems of the United States. Whatever of inevitable imperfection there may be, in this initia- tory enactment in the right direction, will, of course, in due season, receive the attention of congress. I have the honor to be, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VII. p. 342 (Gushing) FUNCTIONS OF CONSULS A consul may be authorized to communicate directly with the government near which he resides; but he does not thereby acquire the diplomatic privileges of a minister. Nor does he, as consul, acquire such privileges by being appointed, as he may, at the same time charge d'affaires. To the question whether a consul can solemnize marriage or not, as consul, it is wholly immaterial whether he be or not a subject of the foreign government. The exterritoriality of foreign consuls in Turkey and other Mohammedan countries is entirely independent of the fact of diplomatic representation, and is maintained by the difference of law and religion; being but incidental to the fact of the established exterritoriality of Christians in all countries not Christian. Consuls, as international commercial agents, originated in the colonial municipalities of the Latin Christians in the Levant, which municipalities were self-governing through their "consuls," the ancient title of municipal magis- trates in Italy. Rights of private exterritoriality having ceased to exist in Christendom, for- eign consuls have ceased, mostly, to be municipal magistrates of their country- men there; but they still continue not only international agents, but also admin- istrative and judicial functionaries of their countrymen, in countries outside of Christendom. Attorney General's Office, July 14, 1855. Sir: Your communication of the 10th instant encloses to me a despatch from Mr. Ritter, the consul of the United States at Fnank- fort OR the Mayn, regarding the solemnization of the marriage cere- 541 Vol. VII, p. 342 (GUSHING) mony by foreign consuls, which despatch was induced by the con- tents of my opinion on that subject of the 4tli of November. Mr. Ritter discusses at length, and with much intelligence, the considerations, which, in his judgment, render it desirable that con- suls in Germany, especially at the points of collection or embarca- tion of emigrants, should possess the power to legalize matrimony. There is force in what he says. Nevertheless, it remains indisputable that consuls do not in fact possess the power, and it cannot be im- parted to them by any act of the department of state. They might possibly acquire it in three ways, namely : first, (343) by municipal act of any foreign government giving legality to a marriage within it so celebrated, in which case there would be nothing in our law, or in our public policy, to forbid a consul officiating in that relation ; secondly, perhaps, specially by treaty, or generally by act of congress. But these are questions of political expediency, not of positive jurisprudence. Mr. Ritter suggests that, in the opinion referred to, notice was not taken of "the difference between consuls, who are subjects of the state where they reside, and those who are not such subjects." Undoubtedly such difference exists, since a subject cannot es- cape his local obligations by means of an appointment as foreign consul ; but that is immaterial to the question ; because the consul does not, by reason of his being a foreigner, become therefore auth- orized to solemnize marriage. If, indeed, being a subject of the state, he have power as a local magistrate to solemnize marriage, or, being a foreigner, he have the same power as clergyman, he rn^ay do it ; but, in either case, not in his capacity of consul. Mr. Ritter suggests another point of consideration, namely, "the difference between consuls residing in a state where there is a minister representing the government by whom they were appointed, and con- suls residing in a state where there is no minister," and he indicates the peculiar importance of this point in Germany. It is true, that, in a country where his government has no minis- ter, the duties of the consul expand of necessity into a larger field, be- cause he will be called upon to communicate with his own government, or with that near which he resides, in matters which would otherwise devolve on a minister; but that circumstance does not cure his legal incapacity as consul to solemnize marriage without authority of the local government. The United States may, with consent of the other party, superadd to the regular duties of consul any of those of minister. There are two great classes of cases in which this fact exists, and 542 OPINIONS OF ATTORNEYS GENERAL might well be systematized, or at least more explicitly recognized in our consular stipulations with foreign governments. (344) One is, that of the transmarine possessions of sundry of the states of Europe. Here, as incidentally intimated in my opinion of the 2d ult., on the subject of the consular establishments of the United States, many cogent reasons dictate that we should insist on the concession 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 informally admitted in many colonial governments. It is convenient for all parties. It is a consular right exercised by treaty in the great pashalics of the Turkish Empire. We have recently made provision to the same effect in treaty ^v^th a Christian power, namely, the Netherlands. And, this govern- ment having thus wisely relinquished its long-standing scruples on this point, we may reasonably expect similar liberality in future commercial negotiations with Great Britain and with Spain. In fact, the consul general of Great Britain now possesses, by conven- tion, the power in Cuba. (Riquelona, Derecho Intemacional, p. 523.) The other class of cases of this nature is that of a consul resid- ing near a metropolitan government where there is no minister, either because of temporary cessation, or because inducements have not existed for the interchange of diplomatic representatives 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 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 the public law ; and, so far as regards the United States, it has example in treaties, for in- stance, in our last consular convention with France. It is a thing of manifest necessity, as between us and those of the coimtries of Germany, with which our relations are entirely amicable, without 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 upon states, not individuals, and of course each state retains the power of foreign representation and (345) 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, Sax- ony, "Wurtemburg, Hanover, the Hessen, the Mecklenbergs, or any other of the members of the Bund. Meanwhile, it woul(i not in either of these classes of cases fol- 543 Vol. VII, p. 342 (GUSHING) low. that because a consul of the United States in Bavaria, or one of Bavaria in the I'nited States, may be admitted to address the gov- eninient. that therefore he becomes a diplomatic personage, with international rights as such, and among them that of exterritoriality. If his commission be that of consul only, if his public recognition be an ex€(2uatur, the foreign consul is subject to the local law in the United States; and our own consul in the foreign country, if in- vested 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 func- tion of charge d'affaires on their consul either with or without limita- tion 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 ca- pacity, and though invested with full diplomatic privileges, yet be- comes so invested as charge d'affaires, not as consul; and the fact of such casual duplication of functions 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. ^Ir. Ritter observes: "In Egypt, Tunis, Tripoli, China, The Islands of the Pacific, consuls enjoy all the diplomatic privileges. The motive is not only in the difference of law and religion with ours, but also in the ab- sence of other diplomatic representatives." This observation involves a double error. In the case of China and Turkey, for instance, our consuls have not, qua consuls, any "diplomatic privileges" except such as they might have in France, during the ab.sence of a minister; such exterritorial, not diplomatic, privileges, as they really enjoy, they enjoy, not because they are con- suls, nor because of the absence (346) of proper diplomatic represen- tatives in tho.se countries, for we have them, — but because they are citizens of the United States. And the true explanation of the diplo- matic rights appertaining to consuls in the Mohammedan states, wliether 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 Islands, is that these states are not Christian, are not admitted to a full community of international law, public or private, with the nations of Christendom. I might demonstrate historically what, in this place, it will suffice to affirm, that the institution of consuls, in their present capac- ity of international agents, originated in the mere fact of differences in law and religion, at that period of modem Europe in which it was customary for distinct nationalities, co-existing under the same 044 OPINIONS OF ATTORNEYS GENERAL general political head, and even in the same city, to maintain each a distinct municipal government. Such mimicipal colonies, organized by the Latin Christians, and specially by those of the Italian Republics, in the Levant, were ad- ministered, each by its consuls, that is, its proper municipal magis- trates, of the well-known municipal denomination. Their commer- cial relation to the business of their countrymen was a mere inci- dent of their general municipal authority. Such also, at the out- set, was the nature of their political relation to other co-existing na- tionalties around them in the same country, and to that country's own supreme political or military powers. The consuls of Christian states, in the countries not Christian, still retain unimpaired and habitually exercise their primitive func- tion of municipal magistrates for their countrymen, their commercial or international capacity in those countries being but a part of their general capacity as the delegated administrative and judicial agents of their nation. This condition of things came to be permanent in the Levant, that is, in Greek Europe and its dependencies, by reason of the tide of Arabic and Tartar conquest having overwhelmed so large a part of the Eastern Empire, and established the Mohammedan religion there. But the result was different in Latin Europe, because the modern nations, formed in this quarter (347) out of the broken fragments of the Western Empire, being Christian, and thus deriving their re- ligion and their civilization from the same fountain-head of Rome, settled into something of approximation to the one great political community, under the influence, potential when combined, of the military power of the Frankish or Germanic Emperors, and the moral power of the Papal See. Thus it was that the mass of legal ideas, which we now call the law of nations, came to exist, and have authority. It is, in its origin at least, the system of public law of Latin or Western Europe. The approximative political unity of Western Europe was ob- structed, at first, by the antagonism of the Celto-Romanic and the Germanic races, and was threatened with complete dissolution when that original antagonism reappeared in the separation of some of the Germanic populations from the Papal See, under the popularly as- sumed religious title of Protestants. But, after thirty continuous years of reciprocal devastation and slaughter, the states of the old and the new faith concluded a truce at least, if not a peace, and agreed, while acquiescing in the fact of religious difference, to main- tain approximate unity of public law, and thus by subordinating the religious idea to the legal one, to live together in some sort, as they 545 Vol. VII, p. 342 (GUSHING) have continued to do. with only occasional spasms of fanatical intol- erance breaking out into civil or foreign war. At a late period, Rus- sia, though of Greek faith, came into the European system of public law, with the less difficulty indeed, for the reason that Latin Europe and Greek Europe alike nourished the legal traditions of the Roman Empire though these be derived in the former case from Rome, and in the latter from Constantinople, it being doubtful which became the most barbarized in the dark ages, Eastern or Western Christen- dom, — in which the modern civilization first became consolidated, — and which the most frankly accepts at this day a tolerant legalism as the balance of intolerant religionism. However this may be, certain it is that by the combination of Romanic law and Christian faith it is that we have come to have a common public law, imder whose gradual operation claims of private exterritoriality soon fell into desuetude among (348) the govern- ments of Christendom ; Italians in England and Englishmen in Italy, at length submitted to the local law; foreign colonial nationalities finally ceased to exist of right; their consuls proceeded to sink from the condition of municipal functionaries into that of mere commer- cial or semi-diplomatic one; and thus in process of time, by tradi- tional usage, by positive provisions of local law, and by treaty stipu- lations, the existing legal character with its limited rights, was fixed on the foreign consuls mutually accredited in the countries of Christ- Europe and America. In our relations with nations out of the pale of Christendom, we must and shall retain for our own citizens and consuls, though we cannot concede to theirs, the right of exterritoriality. There is one European country, and, so far as my observation goes, but one, where the exterritoriality, claimed by Christians in all Mohammedan governments, is reciprocated by the Christians. Spain has conceded to the subjects of Turkey, Morocco, and Tripoli, the same immunity which these last have conceded to Spaniards, that is, the privilege of being subject, each in the country of the other, only to the authority of their own consuls. (Riquelona, Derecho In- temacional, tom. i, p. 303.) Religion is the chief representative sign here; and it is an ele- ment of the question of public law; because, while the different de- nominations of Christianity may continue to sustain, as among them- selves, a certain degree of imperfect mutual endurance, yet, so fierce is religious prejudice on every side, that there is no apparent possi- bility of a half-peace even, as between them and other religions, more especially the Mohammedan. If the former could tolerate the 546 OPINIONS OF ATTORNEYS GENERAL latter, the latter could not the former, except in conditions of military- subjugation as in English India. But the critical fact is the difference of law. The legislation of Mohammed, for instance, like that of Moses, is inseparable from his religion. We cannot submit to one without also undergoing the other. The same legal incompatibility exists, for one reason or another, be- tween us and the unchristian states not Mohammedan. Whereas, Christendom, on the other hand, in all its subdi-(349) visions of race, nationality, and religion, is the common heir of the political ideas, and especially the legislation, of the Roman Empire; for the Institutes and Pandects themselves, though comprising the sum of the legal science of Rome, were compiled and promulgated at Constantinople, and constitute the broad foundation of the juris- prudence, public and private, of the whole of Christendom. When the countries now Mohammedan shall be subjugated to the doctrines of the Roman law, — whether by the arms of Eastern or the arts of Western Europe, is of secondary moment to us, provided it be done, — and not until then, they can be admitted to the same reciprocal community of private rights with us, which prevails in Christian Europe, and in America. Until that event happens, Tur- key, and other Moslem states in Africa or Asia, may, like China and Japan, enter into the sphere of our public law in the relation of gov- ernment to government, but not in the relation of government to men. That full interchange of international right is admissible only among the nations which have unity of legal thought, in being gov- erned by, or constituted out of, the once dissevered, but since then, partially reunited, constituents of the Graeco-Roman Empire. I have the honor to be, very respectfully, C. GUSHING. Eon. Wm. L. Marcy, Secretary of State. Yol. VII, p. 349 (Gushing) DISCHAEGE OF SEAMEN Masters of American vessels cannot lawfully discharge seamen in foreign ports without intervention of the consul. It does not help the matter to allege that the seamen consent, or have mis- conducted themselves, or are not Americans: of all that it is for the consul to judge. Attorney General's Office, July 17, 1855. Sir: Your communication of the 10th instant transmits to me correspondence between Edward Gordon, commander of the (350) 547 Vol. VII, p. 349 (GUSHING) schooner Humboldt, employed on the survey of the coast of the United States, and the consul of the United States at Rio, respecting the dis- charge, by Mr. Gordon, of certain seamen at that place, for the pur- pose of having proper instruction on the subject addressed by me to the district attorney of the United States of the Northern District of California. It appears that ^Mr. Gordon discharged the mate and two seamen of the Humboldt, at Rio, by his own mere authority, and without the intervention of the consul of the I"fnited States. Having done it, he gave the consul notice of the fact, saying that the mate was dis- charged for drunkenness, and the two seamen with their own consent, they not being Americans. In all this "Sir. Gordon acted inconsid- erately and unlawfully. He had no right to determine of himself the facts on which he as-sumed to act, nor to consummate the discharge without intervention of the consul. As Mr. Gordon is employed by authority of the treasury depart- ment, and as much of the evidence in the case will be found there, it seems to be most convenient to commit the whole ease to the secre- tary' of the treasury. I have accordingly transmitted the papers to that department. I am, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VII, p. 367 (Gushing) FOREIGN ENLISTMENTS IN THE UNITED STATES Attorney General's Office, August 9, 1855. Sir: (Extract) (379) Beyond all this, it would seem that the legal advisers of the British government conceive that the official agents of one nation may rightfull}^ do, within the territory of an- other, anything which is not by the domestic statutes of the latter declared to be a municipal offence, indictable as such before the courts of law. If such an idea be entertained by the British govern- ment or its law-officers, certainly it is a mere delusion, possible to exist only in minds shut up in the narrow sphere of the technical common law of England. How insular that law is, — and how defective the knowledge it imparts even for the purpose of domestic, and still more of foreign, administration, — the jurists of England themselves have too fre- quently had cau.se to observe. (See ex. gr. Phillimore's Internat. Law, pref. p. xi ; Ghitty's Practice, pref. p. v. note.) 548 OPINIONS OF ATTORNEYS GENERAL Nothing can be plainer than the position that the objects of the municipal law in such a case are domestic only. In con-(380)stitu- tional governments, it confers on the executive, in the particular mat- ter, powers which he would not otherwise possess; and it provides the means of repressing all acts of individual persons, whether foreign agents or not, which may contravene the policy, or infringe the rights, of the country. But the municipal law cannot reach the foreign sovereignty, by whose orders the individuals in question, if public agents, act in violation of the local sovereignty. Yet is not the for- eign sovereign, as sovereign, the chief wrong-doer? And is the wrong to be redressed in no way except by punishing the subordinate agents of the wrong, if there happen to be any municipal law to reach the case ? And if there be no such law, is the injury to go unredressed ? Clearly not: for governments in their international acts are directly responsible to governmjents. But the radical absurdity is in assuming that a foreign govern- ment may lawfully do on the territory of another government, or cause to be done, anything whatever, which is not made penal by local statutes. This assumption is altogether groundless. The law of nations is international, not domestic or municipal: it is the en- semble of international conventions, usages, and received opinions, aided, in case of need, by the doctrines of abstract justice and of uni- versal reason. It is not restricted to the bounds of acts of parliament or acts of congress. International right would be reduced to a sin- gular condition indeed, if it consisted of those things, and those things only, which, for consideration of internal convenience. Great Britain or the United States may have happened to enact as law by means of their legislative assemblies. It is not so, either affirmatively or negatively. Things are affirmed in their statutes which are not ac- cording to the law of nations; and there are many points of inter- national law which have not been affirmed by their statutes. A single pertinent illustration of the latter will suffice. There are two matters of sovereign right, which are alike in char- acter, and are naturally associated in the writings of international jurists, — namely, the right to prevent either the transit (381) of for- eign troops, or the enlistment of soldiers for foreign ser\ace. In Great Britain and the United States we have municipal laws to re- press and to punish the individual agents, official or unofficial, of the latter invasion of our sovereign rights ; but none to punish, or even to repress, the former. May it therefore be done with impunity ? Nay, can it be done \\athout national offence? It may, according to the premises assumed in the other case. If all acts of foreign enlistment may be rightfully done, provided there be no prohibitory statute, 549 Vol. VII, p. 367 (GUSHING) and if there be any, then all such as the statute does not reach, — of course all acts of foreign military transit may be rightfully per- formed, and there is the end of the sovereignty of every nation, which does not happen, like Great Britain, to be surrounded by water. In truth, the statute in all these matters is of but secondary ac- coimt. The main consideration is the sovereign right of the United States to exercise complete and exclusive jurisdiction within their own territory ; to remain strictly neutral, if they please, in the face of the warring nations of Europe ; and of course not to tolerate enlistments in the country by either of belligerents, whether for land or sea service. If there be local statutes to pimish the agents or parties to such enlistments, it is well; but that is a domestic question for our consideration, and does not regard any foreign government. All which it concerns a foreign governmient to know is, whether we, as a government, permit such enlistments. It is bound to ask permission of us before coming into our territory to raise troops for its own ser- vice. It has no business to inquire whether there be statutes on the subject or not. Least of all has it the right to take notice of the statutes only to see how it may devise means by which to evade them. Instead of this, it is bound, not only by every consideration of in- ternational comity, but of the strictest international law, to respect the sovereignty and regard the public policy of the United States. Accordingly, when, at the commencement of the great European struggle between England and France, near the close of the last cen- tury, the French Convention assumed to recruit (382) marine forces in the United States, it was held by President Washington, and by his Secretary' of State, ^Ir. Jefferson, as explained in the correspond- ence hereinbefore quoted, that by the law of nations, in virtue of our sovereignty, and without stopping to enact municipal laws on the sub- ject, we had full right to repress and repel foreign enlistments, and e converso, that the attempt to make any such enlistments was an act of gross national aggression on the United States. When a foreign govenment, by its agents, enters into the United States to perform acts in violation of our sovereignty, and contrary to our public policy, though acts not made penal by municipal law, that is a grave national indignity and wrong. If, in addition to this, such foreign government, knowing that penal statutes on the subject exist, deliberately undertakes to evade the municipal law, and thus to baffle and bring into disrepute the internal administration of the coim- try, in such case the foreign government not only violates but in- sults our national sovereignty. I repeat, then, that, if it were to be supposed that the British government had so far forgotten what is due to its own dignity, as to 550 OPINIONS OF ATTORNEYS GENERAL instruct its agents within the territories of the German Bund, in the Netherlands, in the United States, to enlist recruits without respect for local sovereigny, but with care to avoid or evade the letter of local statutes, instead of diminishing, that would aggravate the injustice and illegality of the proceeding in the eye of the law of nations, and the intensity of the public wrong as regards the neutral states thus converted, without their consent, into a recruiting ground for the armies of Great Britain. Such instructions would be derogatory to our public honor in another respect. They presume that the United States, without be- coming the open ally of Great Britain, will, by conniving at the use of their territory for belligerent purposes, while professing neutrality, thus carry on, as already intimated, a dishonorable war in disguise against Russia. It appears, however, that the British government, finding it im- possible to keep the ranks of its army filled by voluntary enlistments, and being loth to encounter the responsibility of a (383) law for con- scription, for draughts on militia, for periodical service of its able- bodied men, or for any other systematic method of raising troops from its own population, introduced into parliament a bill entitled "An act to permit foreigners to be enlisted, and to serve as officers and sol- diers in her majesty's forces," but which was in fact a bill to author- ize the government to employ agents to carry on recruiting service in the neutral states of Europe and America. The law was earnestly objected to in its progress, as insulting to neutral states and derogatory to the national dignity, but was passed, nevertheless, on the 22d of December, 1854. (Hansard's Debates, third series, vol. 136, passim.) At an early day after the passage of this act, measures were taken to recruit officers and men, for a proposed foreign legion, in the United States, those measures being publicly pursued under the official responsibility of Sir Gaspard le Marchant, lieutenant governor of the province of Nova Scotia. A military depot was established at Halifax for the reception and enrollment of recruits ; and Mr. Howe, a member of the provincial government, with other agents, came into the United States to make arrangements for engaging and forwarding the recruits, chiefly from Boston, New York, and Philadelphia. Sub- sequently, corresponding arrangements were made for collecting and forwarding recruits from the western states, by Buffalo or Niagara, through upper Canada. These acts were commenced and prosecuted with printed hand- bills and other means of advertisement, and recruits were collected in depots at New York and elsewhere, and regularly transported to 551 Vol. VII, p. 367 (GUSHING) Canada or Nova Scotia, with undisguised notoriety, as if the United States -were still a constituent part of the British Empire. Of course, they attracted great attention, and the various measures, whether legal or political, proper to put a stop to them, were instituted by your direction, through the instrumentality of the foreign or legal depart- ments of the government of the United States. In the course of the investigations which ensued, among the facts brought to light are some, in the documents referred to me, which un- equivocally implicate, not only the British consuls, (384) but the British minister himself, in the unlawful transactions in question, and so call for inquiry as to the rights of this government in reference to them and their government. In the application of the general rules of law to the offences com- mitted, it is necessary to distinguish between the case of any of the consuls and that of the minister. The several district attorneys of the United States, within whose jurisdiction, respectively, the cases occurred, very properly assumed that the consuls were subject to indictment for infraction of the municipal law, and have proceeded accordingly, prosecutions having already been instituted in the Southern District of Ohio, against the consul at Cincinnati, and in the Southern District of New York, against an ofificer of the consulate of New York. Nothing is better settled by adjudication in this country, than that foreign consuls are subject to criminal process for violation of the municipal laws. (United States v. Ravara, ii Dall. 297. Mannhart V. Soderstrom, i Bin. 144; Commonwealth v. Kosloff, 1 Serg. & R. 545; State v. De la Foret, ii Nott. and Mc. 217.) These adjudications are in exact conformity with the law of na- tions in regard to consuls, as understood and practiced not less in Great Britain than in other states of Christendom. (See ante, p. 18; also, Kent's Com., vol. i, p. 44; Wheaton's El. by Lawrence, 305.) The only privilege which a consul enjoys in this respect, in the United States, is that awarded to him by the constitution, of being tried by the federal courts: the effect of which is, that his case re- mains within the control of the general government, which may deal with it according to the convenience or the exigencies of its foreign policy, without impediment from the authority of any of the in- dividual states of the Union. (Const. Art, iii, sec, 2 ; act of September 24, 1789, sec. 9, i Stat, at Large, p. 77.) The consul at Cincinnati, as appears by the legal proceedings therf. supposes that he is entitled to the benefits of certain peculiar stipulations in the consular convention between the United States 552 OPINIONS OF ATTORNEYS GENERAL and France, of Febmary 23, 1853. If it were so, that (385) would not serve him on the main point, because it does not exempt consuls from the criminal jurisdiction of either of the contracting govern- ments. But this convention has no application whatever to the con- sular relations of Great Britain and the United States. Whether it applies or not to governments with which we have entered into stipu- lations to place our respective consuls on the footing of the most favored nation, is a question as yet unsettled. But there is no stipu- lation of that nature in existence, as between Great Britain and the United States. Of course, the duties and the rights of American consuls in Great Britain, and of British consuls in the United States, stand upon the law of nations, except as the same is modified by their treaties, and by the local law of either country. The local law of each, as we have seen, withholds from consuls the diplomatic privilege of exterritoriality. A British consul, therefore, has no just cause of complaint, if, when charged with an offence, he is held amenable to the criminal jurisdiction of the United States. In addition to those ordinary means of redress in the case of the misconduct of a foreign consul, is that afforded by the law of na- tions. The President of the United States has the undoubted power, in his discretion, to withdraw the exequatur of any foreign consul. To justify the exercise of this power, he does not need the fact of a technical violation of a law judicially proved. He may exercise it for any reasonable cause, whenever, in his judgment, it is called for by the interests or the honor of the United States. (De Clerq, Guide des Consulates, p. 101.) On each of these points provision was made in the commercial convention between the United States and Great Britain of July 3d, 1815, which stipulates that "before any consul (in either countrjO shall act as such, he shall, in the usual form, be approved and ad- mitted by the government to which he is sent ; and, * * in case of illegal or improper conduct towards the laws of the government of the country to M'hich he is sent, such consul may either be punished according to law, if the law will reach the case, or be sent back; the (386) offended government assigning to the other the reasons for the same." (Art. iv.) This convention, by its terms, was to subsist only four years. By a sunbsequent convention, that of October 20th, 1818, its duration was prorogued ten years, (art. iv;) and afterwards, by the convention of August 6th, 1827, for another ten years, and until denounced by either party on twelve months' notice. For the rest, the stipulations of the convention of 1815, as con- 553 Vol. \ai, p. 367 (GUSHING) tinued by the conventions of 1818 and 1827, are but declaratory of the law of nations, as that is understood both in Great Britain and the United States. I have the honor to be, very respectfully, C. GUSHING. To the President. Vol. VII, p. 395 (Gushing) DEPOSIT OF SHIP'S PAPEES Masters of American vessels are subject to prosecution in the name of the consul for omission to deposit with him the papers according to law, but not to indictment. Attorney General's Office, August 22, 1855. Sir: I have received your communication of the 21st, enclosing a letter of Mr. Winthrop, the consul of the United States at Malta, and requesting me to give proper instruction on the subject to the attorney of the United States in New York. It appears that two American shipmasters, Gaptain Borland, of the ship "Gaimtlet," and Gaptain Stetson, of the ship ''AUeganian," refused, on entering the port of Malta, to deposit their registers with the consul. For so refusing, they are subject to a forfeiture of five hundred dollars, recoverable by the consul, in his own name, but for the ben- efit of the United States, in any court of competent jurisdiction. (Act of Feb. 23, 1803, s. 2; ii Stat, at Large, p. 203.) Griminal procedure, under our laws, in such a case, applies only to the masters of foreign vessels in the ports of the United States. (Act of March 3, 1817; iii Stat, at Large, p. 362.) I have addressed the attorney of the United States on the sub- ject. Meanwhile, I advise that Mr. Winthrop be instructed to report all such cases ; and in regard to those now reported, as also any others of the same description, that, to prevent technical difficulties, he trans- mit express authority to the department to use his name in the suits communicating separate authority for each case. It may be well, moreover, to instruct the consul to see that proof exists in each case of the violation of the law. I am, very respectfully, G. GUSHING. Wm. Jlunter, Esq., Assistant Secretary of State. 55^ OPINIONS OF ATTORNEYS GENERAL Vol. VII, p. 542 (Gushing) ASSETS OF AMERICANS ABROAD The face of a banker's circular letter of credit, found in the posseBsion of an American dying abroad, is not assets to that amount to be administered by the consul. Attorney General's Office, October 10th, 1855. Sir: Your letter of the 24th ult., enclosing correspondence of the consul of the United States at Paris, and of Messrs. J. C. Howe and Co., of Boston, presents this question : Mr. Alexander, a citizen of the United States, bearing a circular letter of credit from the Messrs. Howe, addressed to their correspond- ents in Europe, dies there. Is the amount, borne on the face of such letter of credit, assets of the deceased, on which the consul is to charge a commission for remittance to the United States? Clearly not, in my opinion. An American, leaving home to travel in Europe, or to buy mer- chandise there, deposits with a banker at home cash, or securities on his personal credit, on which to obtain a circular letter of credit on a banker, or, as often happens, a series of bankers, in Europe. The assets of the party remain here, they are not transferred there, ex- cept so far as he draws on the foreign banker. The authority to draw on the foreign banker is not itself assets, nor is the acceptance of that foreign banker assets. The whole transaction, when fixed by the presentation of the letter of credit and its acceptance, is only a promise of the banker to advance money on the credit of the drawer when called for by the drawer, to a certain limited amount. It is, in fact, a promise to lend to A. on the credit of B. Such a promise cannot, in any possible point of view, be hona notahilia of A. (543) Any money which the holder of the circular letter of credit may have drawn out upon it, and then deposited with the foreign banker subject to check, will be legal assets of the deceased; but not so either the original face of the letter, or the balance upon it. The letter, instead of representing property of the deceased in the hands of the banker, or a debt of the banker to the deceased, is the very contrary of this, namely, a contingent debt of the deceased for the whole face of the letter, and an actual debt of his in so far as it has been cashed. These conclusions are general, and cover the whole class of such letters, — whether limited in amount, or unlimited, as they may be, ae4 son].etimes are, and whether already drawn upon wholly, in part, 555 Vol. VII, p. 542 (GUSHING) or not at all, and whatever may be their object or conditions. In no possible stage or form of the transaction are they bona notahilia. Of course, in the particular case, that of the travelling letters of credit draA\-n by the ^lessrs. Howe, in favour of Mr. Alexander, dying in Paris, the letters are not subject to the charge of commis- sion by the consul. I have the honor to be, very respectfully, C. GUSHING. Hon. TTm. L. Marcy, Secretary of State. Vol. VII, p. 722 (Gushing) DUTY OF SHIPMASTEES RESPECTING CRIMINAL SEAMEN Shipmasters in foreign ports are subject, on the requisition of the consul, to take on board, and convey to the United States, distressed mariners; but not sea- men or other persons accused of crimes, and to be transported to the United States for prosecution. Attorney General's Office, Jwie 25, 1856. Sir : The documents accompanying your letter of the 26th ultimo exhibit the following facts: Seneca S. Bishop, a seaman of the American ship Corsica, com- mitted a mutinous and felonious assault on board the same, and while she was on the high seas : an act punishable of course in the United States. (Act of April 30, 1790, i Stat, at Large, p. 113.) The Gorsica afterwards arrived at Galcutta; and while she lay there, Bishop was held in confinement by the local authorities at Calcutta. (See U. S. Consular Instructions, No. 134.) When the ship was about to depart, some question arose as to the disposition to be made of Bishop. The British authorities decided properly that the crime was to be deemed as committed in the territorial jurisdic- tion of the United States, and (723) as one of which the courts of the United States had cognizance, and therefore not within the cog- nizance of the courts of British India. The same authorities also perceived that the case could not be treated precisely on the footing of international extradition, for want of the forms of demand re- quired by treaty and statute. At length, however, it was concluded to deliver the accused over to the custody of the American consul, by whom he was replaced on board the Corsica for conveyance to and trial in the United States. But the master of the Corsica, who had in the first instance agreed to take charge of Bishop, and convey him to the United States for trial and punishment, afterwards repented of his undertaking, 556 OPINIONS OF ATTORNEYS GENERAL and allowed the prisoner to escape before the ship had left the waters of India. And the case is now represented to you by the consul, in order that due steps may be taken to punish the master for the alleged release of Bishop. I doubt whether there is any provision of law which meets the act. Masters of American ships are compelled to bring home desti- tute seamen, but that provision cannot be construed in my opinion to embrace criminals imder arrest. I am not aware of any law, which compulsorily imposes this duty on merchant ships of the United States. That the two things are distinct, the conveyance of distressed seamen and the conveyance of criminals, is very apparent. It is ob- vious that the custody of a criminal requires special arrangements, for which the trifling compensation allowed in the case of distressed seamen is wholly inadequate. Accordingly, in those consular codes in which completeness is aimed at, as in that of France, there is distinct provision for the two cases; and the consul, on requiring the transportation of a crim- inal on board a ship, has to enter into express contract with the mas- ter, with power to make advances to cover the cost, drawing therefor on his government. (De Clercq et Vallat, Guide des Consulats, p. 368; De Clercq, Formulaire des Chancelleries, tom. ii, p. 70.) I cannot advise, therefore, that anything further be done in the premises, in so far as regards the master of the Corsica. I (724) beg leave to suggest, however, that the conduct of the American consul in the affair, and that of the British authorities at Calcutta, are, it seems to me, entitled to the particular commendation of the presi- dent. I have the honor to be, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VIII, p. 73 (Gushing) AMERICAN SHIPS IN FOREIGN PORTS Ships of war enjoy the full rights of exterritoriality in foreign ports and ter- ritorial waters. Merchant ships are a part of the territory of their country, and are so treated on the high seas, and partially, but not wholly so, while in the territorial waters of a foreign country. Crimes committed on board ship on the high seas are triable in the country to which she belongs. In port, the local authority has jurisdiction of acts committed on board of a 557 VoL VIII, p. 73 (GUSHING) foreign merchant ship while in port, provided those acts affect the peace of the port, but not othcr'nisej and its jurisdiction does not extend to acts internal to the ship or transpiring on the high seas. The authority of the ship's country, in these cases, is not taken away by the fact that the actors are foreigners, pro\-ided they be of the crew or passengers of the ship. The local authority has right to enter on board a foreign merchantman in port for the purpose of inquiry universally, — but for the purpose of arrest, only in matters within its ascertained jurisdiction. Attorney General's Office, September 6, 1856. Sir : I have examined the correspondence between Mr. Mason, the envoy of the United States, in France, and the president of the coun- cil of state of the French empire, charged par ijiterim with the min- istrj' of foreign affairs, M. Baroche, as communicated to me by your note of the 5th inst-ant, and have reflected on the pertinent questions of public law which you suggest for my consideration. Without entering into recapitulation of all the facts involved in the discussion, it will suffice for the present purpose to state such only as are essential to the right imderstanding of the points now re- maining to be determined. It appears that, while the American merchant-ship Atalanta was on a voyage from Marseilles to New York, and on the high seas, out of the municipal jurisdiction of any government, acts of insubor- dination and violence occurred on the part of her crew, by whom the ship was forced to put back to Marseilles. On her arrival in port, the criminal parties were, on the applica- tion of the American consul, received and imprisoned on shore by the local authorities. (74) Afterwards a certain number of them were released abso- lutely with assent of the consul. Thirteen of the crew thus remained. Of these, a portion, six in number, were, on the application of the consul, taken from the prison and placed on board the At-alanta for conveyance to the United States, under charge of crime. Then, with notice to the consul, it is true, but in spite of his remonstrances, the local authorities went on board the Atalanta, and forcibly resumed the possession of the six prisoners, and replaced them in confinement on .shore, where they now remain, together with the seven others not taken on board, the subject of the pending correspondence. It does not distinctly appear of what nationality these men are ; but it is implied by the tenor of the discus.sion on both sides that they are neither citizens of the United States nor citizens of France. The acts of criminality with which they stand charged consti- tute the crime of revolt, and also that of felonious assault, under 558 OPINIONS OF ATTORNEYS GENERAL circumstances which bring the case within the jurisdiction of the ju- dicial authorities of the United States. (Act of March 3, 1835.) To the same effect, undoubtedly, is the French law, which as- sumes, as ours does, that the ship is a part of the territory of her country, and provides specially for the punishment of crimes com- mitted on board. (Ord. de 1681, liv. 11, tit. 1, art. 22; Valin, Com- ment., torn. 1, p. 449; Decret du 24 Mars, 1852, De Clercq, Formul. torn, ii, p. 348.) To this, it is wholly immaterial by our law whether they were citizens of the United States or not. (United States v. Sharp, i Peters C. C. R. p. 118, 121.) Nor is it material whether, in their shipment on board the Ata- lanta, the master did or not infringe the navigation laws of the United States. The practical inquiries are — 1. "Whether, in view of the stipulations of the consular conven- tion between the United States and France of February 23, 1853, or of the rules of international law, the French authorities acted right- fully in going on board the Atalanta to retake (75) the six seamen placed there for transmission to the United States. 2. Whether the American government may now, in virtue of treaty or of the law of nations, rightfully demand the extradition of these thirteen men, for transmission to the United States, there to be tried in due course of law for their imputed crimes? It is due to the Emperor's government to say that the questions made in the case are manifestly presented by it in good will and in all comity as regards the United States; and may, therefore, be dealt with by me unreservedly in their mere legal relations. 1. Of the rightfulness of the retaking of the men from on board the Atalanta. I perfectly agree with M. Baroche, that it was not the object of the consular convention, to confer on the consuls of either nation the jurisdiction of crimes in the ports of the other. It is also undeniably true that, by the general rules of public laws, at least as they are understood and received in the United States, we do not claim for ourselves, nor concede to other nations, the right of exterritoriality for merchant-ships in the territorial waters. If, in concluding this convention, the two governments had de- signed to establish as between themselves a new rule in this respect, they would have said so expressly; and if they had so declared ex- pressly, the convention would not have been confirmed on our side, for no state of the Union, probably, would have consented thus to 559 Vol. VIII, p. 73 (GUSHING) surrender its own municipal jurisdiction in its own waters to the consuls of France. But, in treating the question as one either of the criminal juris- diction of consuls or of the exterritoriality of merchant-vessels on the territorial waters, do we not assume for it too broad a scope ? I conceive the true question to be a much narrower one. It is, whether, when a crime has been committed on the high seas, on board an American ship, that crime being of the sole competency of the United States, and the ship is compelled by her contract of destina- tion, by stress of weather, or by the crime (76) itself, to touch at a French port. — whether, in such case, the criminal may be forcibly withdrawn from the ship by the local authorities or by the order ol the government. This question presents itself here in three different forms : First, the French authorities take the temporary custody of the parties at the request of the American consul. Secondly, the French authorities redeliver a portion of the pris- oners to the consul to be held on board the Atalanta ; and, Thirdly, they retake the latter prisoners from on board the Ata- lanta. In my opinion, when the Atalanta arrived at Marseilles, the mas- ter of that ship had lawful power, with aid of the consul if required, to retain these men on board. Though not citizens of the United States, they were American seamen, under voluntary contract for a voyage to New York, whom the local authorities had no just power to discharge from their contract. The consideration that they had committed crimes on board the ship, but not within the local juris- diction, for which crimes they were liable to be punished on her reaching New York, did not give to the local authorities any just right to interfere. If crime had been committed while the ship lay in the territorial waters, then the local authorities, and they alone, would have had jurisdiction, and might have gone on board to seize the prisoners by force. But not when no act had been done by them to give juri.sdiction of the case to France. I transfer the question to the United States, and proceed to sup- pose that a French merchant-ship, on her way to Marseilles, puts into New York, in distress, having at the time mutinous members of her crew confined on board. Could such persons, in such a case, be lawfully taken away from the custody of the master by the local authorities, with instrumentality of the writ of habeas corpus or othervsi.se? I think not. Now, by the consular convention, and by the law of nations with- out it, the consul represented the master, and his country alone, in 560 OPINIONS OF ATTORNEYS GENERAL matters calling for the intervention of the authorities of Marseilles. This representative duty, and this only, the consul undertook to dis- charge in the present case. He did not (77) claim or assume to exer- cise any power judicial or other, in derogation of the territorial sov- ereignty. I think the consul acted lawfully, when, at the first stage of the transaction, he requested the local authorities to take temporary charge of these prisoners. I do not say the local authorities were bound to assume the re- sponsibility of such custody ; but they might well in comity do it ; nay, it was their duty, in my opinion, at the call of the consul, at least to lend him their aid in this respect, by the express terms of the con- vention. I concede, in the fullest terms, the integrity of the local sover- eignty ; and that, instead of contradicting, seems to corroborate my view of the subject; for how shall the consuls maintain the internal order of the merchant- vessels of their nation, — how, in the foreign port, shall they imprison persons, — save through the assistance of the local authority? Are they to do it by their own unaided force in the presence of the local jurisdiction? Surely, to allow this, would be to introduce the greatest disor- ders, which can be avoided only by having recurrence to the local authority for its own lawful action in behalf of the consul. However this may be, my conviction is clear that the local au- thority, even if it n^ay refuse to aid, cannot lawfully interpose to defeat, the lawful confinement of any members of the crew by the master, on board the ship, with advise and approbation of the consul. If the parties confined have the lawful right to be discharged from such custody, they may obtain it on application to the consul. That is one of his legitimate, exclusive, and ordinary functions. That the right and the power of the local jurisdiction are such only as here suggested, is the opinion of the jurists of France. Ortolan states the doctrine, as follows : "As to ships of commerce, we know that when they are in the territorial waters of a foreign state, they are not exempt from the local police and jurisdiction, except as to facts happening on hoard which do not concern the tranquility of the port, or persons foreign to the crew. For all other facts they remain (78) subject to this police and this jurisdiction. Hence, it follows that the local au- thority has the right to pass on board these vessels, there to pursue, search for, and arrest persons w^ho have been guilty, either on shore, or even on board, of acts amenable to the territorial justice." (Dip- lomatic de la Mer, torn, i, p. 335.) 561 Vol. VIII, p. 73 (GUSHING) In the present case, the crimes committed on board the Atalanta, were not "amenable to the territorial justice;" they did not concern "the tranquility of the port," nor did they affect any "persons for- eign to the crew. ' ' The rule of law, as thus laid down by Ortolan, seems to have been draNvn from a decision of the council of state in the time of the Emperor Napoleon I., to the point that the local authority will not intermeddle with acts, even crimes, committed on board a foreign ship in such circumstances. (Ortolan, tom. i p. 450, annexe, ii.) Nay, the French laws do not hesitate to prescribe that when crimes are committed on board a French vessel in a foreign port, by one of tJie crew against another of the same crew, the French consul is to resist the application of the local authority to the case. (Ord. du 29 Oct. 1833, tit. iii, art. 22,— De. Clercqq, Form. tom. ii, p. 65.) This doctrine has become so firmly fixed in France, that the text writers assume it as a rule of international law. (See M. M. de Clercqq et de Vallet, Guide Pratique, tom. i, p. 366.) Indeed, the recent legislation of France confers on her consuls unmistakable jurisdiction in these matters. (Decret du 14 Mars. 1852; see De Clercqq, Formulaire, tom. ii, p. 348.) Previously, their duties were in the nature of surveillance, rather than jurisdiction. (Moreuil, Guide des Agens Cons. p. 389.) We de not go so far in this as France. I admit, as already stated, the local authority in regard to crimes committed on board a mer- chantman in the territorial waters. But I deny that the local author- ity has any right to interfere with persons lawfully detained on board the ship by the laws of the country to which she belongs, as for a crime committed on the high seas among members of the crew, and not justiciable by the foreign jurisdiction. France, at least, cannot deny to us, it (79) would seem, this exemption, when she herself claims to extend it so much further, and make it comprehend occurrences internal to the crew, even though happening in port. The doctrine of the public law of Europe on this point is well stated by Riquelme, as follows: "Crimes committed on the high seas, whether on board ships of war or merchantmen, are considered as committed in the territory of the state to which the ship belongs, because only the laws of the latter are infringed, and consequently only the jurisdiction of the same is called upon to adjudicate, whether the accused be of the nationality of the ship or a foreigner, and whether the crime were committed against a fellow-countryman or between foreign passengers. "If the ship, on board of which the crime has been committed, arrives then at a port, the jurisdictional right of the territory, to 562 OPINIONS OF ATTORNEYS GENERAL which the ship belongs over the accused, does not on that account cease. So that, if one of these were a foreigner, subject to the state to which the port, at which the ship stops, belongs, even in that case it is the right of the captain to detain him on board, that he may be judged by the tribunals of the ship's country. And if this passenger should get on shore, and should institute before the tribunals of his country proceedings against the captain, the local authority will be incompetent to judge the foreign captain, because the fact in question occurred in a foreign country, that is, on board a foreign merchant- man on the high sea, and because, by embarking in that ship, the party is presumed to have submitted himself to the laws of the foreign ter- ritory of which the ship constitutes a part. "When the crime is not committed on the high seas, but while the ship is in territorial waters, then it is necessary to distinguish be- tween ships of war and merchantmen. In the first case, the principle of exterritoriality covers the ship from all foreign intervention or investigation. * * ' ' In the second case, when the crime has been committed on board a merchantman in a foreign port, the resolution is different, because the condition of a merchantman in a foreign port is different from that of a man-of-war. The rule in these cases, in default of treaties or inducements of reciprocity (80) determining it, is, that if the of- fence affect only the interior discipline of the ship, without disturbing nor compromitting the tranquillity of the port, the local authority ought to declare itself incompetent unless its assistance is requested, because the true regulator of these questions, in which the local au- thority has no interest, is the consul. "But, if the offence has been committed by one of the crew against a subject of the country or another foreigner, or if, occur- ring among those of the crew, it be of a nature to compromise the tran- quillity of the port, then the territorial jurisdiction is entitled to pun- ish the crime even although the accused undertake to claim the pro- tection of the ship." (Riquelme, Derecho Intemacional, torn, i, p. 243, 245.) These are just and reasonable views, applicable to the present case. I confess myself wholly at a loss, therefore, to see on what as- signable ground of strict international right it was that the local authority at Marseilles proceeded in withdrawing these parties from their lawful confinement on board the Atalanta. If, indeed, it were the intention of France to try these men for their crime, and it had been committed in the territorial waters, so as to be capable of being tried there, then, indeed, we might see 563 Vol VIII, p. 73 (GUSHING) cause for withdrawing them from the custody of the ship or the con- sul. But no such thing is proposed in the despatch of M. Baroche. If the legality of what has been done be admitted, then municipal crimes perpetrated on the high seas will much of the time escape un- punished. One term of every voyage is a foreign port. If a crime, other than piracy, be conmiitted wliile on the way thither, and the criminal cannot be detained on board the ship or on shore subject to the discretion of the consul, he cannot be tried ; for the local authority cannot try him, and if he is to be withdrawn from the custody of the ship, he cannot be tried in the country to which she belongs, and which alone has jurisdiction. Thus the eifect of the course entered upon by the local authority at Marseilles, if it should be sanctioned by the Emperor's government, and admitted by the United States, would (81) be to discharge these criminals without punishment, to set the example of immunity of crime in all such eases for the future, and tend to the most calamitous consequences, as respects the safety of the commercial marine of both France and the United States. The public evil in this respect would be sufficiently serious, when considered in the relation to the case of ordinary voyages, but in other cases, such as that of vessels forced into port by stress of weather, or other common perils of the sea, it would grow to be intol- erable, and more especially as in the case of acts of insubordination on the part of the crew. Meanwhile, seamen would have nothing to do but to seize the ship and make for a foreign port, there to be re- leased by the local authority. It would be to hold out inducements and temptation to mutiny and murder on the high seas. The superior intelligence of M, Baroche cannot fail to see this, and to impel him to suggest to the diplomatic agents of any other government, who have made representations on the subject that, in seeking, for whatever plausible reason, to abstract these men from the only jurisdiction which can try the offence, they do irreparable prejudice to the interests of all the maritime states of Europe and America. It cannot be for the interest of Sardinia, for instance, of Austria, of Spain, to have it established as a rule of public law, that seamen who have committed crimes appertaining to their penal jurisdiction and to no other, shall be set free the moment the ship in which they may be, touches at a foreign port. It is for the common benefit of the civilized world to see to the condign punishment of all crimes commit- ted on the high seas. Permit me to add that the United States, while recognizing the local authority generally in the case of merchant ships, have never 564 OPINIONS OF ATTORNEYS GENERAL claimed nor conceded it as to things not appertaining to the terri- torial jurisdiction. We have constantly affirmed our right to detain on board our ships, even in a foreign port, persons held to such de- tention by the laws of the United States. (See Mr. Legare's opinion of July 20, 1842. Also Wheaton's Elements by Lawrence, p. 156 note.) Permit me also to remind you of the recent case of the ship (82) Corsica at Calcutta, (Opinion June 25, 1856,) which greatly re- sembles this in many respects, involving the question of extradition, as well as detention, and which was disposed of by the British gov- ernment, on both points, as claimed by us here, that is, as a matter ap- pertaining to the jurisdiction of the United States. I have discussed this part of the subject, as you will have per- ceived, in points of view, which are independent of any seriously de- batable matter in the construction of the consular convention. Before leaving it, allow me to say a few words on that question. The relevant stipulations of the convention are contained in the 8th article, as follows: "The respective consuls general, consuls, vice consuls, or consu- lar agents, shall have exclusive charge of the internal order of the merchant-vessels of their nations, and shall alone take cognizance of differences which may arise, either at sea, or in port, between the captain, officers, and crew without exception, particularly in refer- ence to the adjustment of wages and the execution of contracts. The local authorities shall not, on any pretext, interfere in these differ- ences, but shall lend forcible aid to the consuls, when they may ask it, to arrest and imprison all persons composing the crew whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the consuls, addressed in writing to the local au- thority, and supported by an official extract from the register of the ship, or the list of the crew, and shall be held during the whole time of their stay in the port, at the disposal of the consuls. * * Their release shall be granted at the mere request of the consuls made in writing. The expenses of the arrest and detention of those persons shall be paid by the consuls." I conceive that, regarding this article as we should, that is, as a part of our public law, adapted to, and cohering with, other parts of our public law, all the difficulties in its construction vanish. The national sovereignty of the United States, like that of France, is complete within its owtq territory. Neither nation confers exter- ritoriality on foreign merchant ships within its (83) waters. Neither nation asserts for its consuls judicial authority for the trial of crimes except in countries without the pale of Christendom. But each nation 565 Vol. VIII, p. 73 (GUSHING) does, by the general rule of public law, and more especially by this convention, as between France and the United States, concede to the consuls of the other a certain authority of discipline, and to the ships of the other a certain privilege in its ports. As to the questions of mere civil right, internal to the ship and to her crew, even if the latter be on shore, we agree that the consuls are to have cognizance, and are to be aided by the local authoritiea in this respect. But now as to criminal matters? These, it is clear, cannot be tried and judged by the American consul in Marseilles, nor by the French consul in New York. Is the consul, for this reason, stripped of all power, and the ship herself of all immunity, in respect of persons subject to detention for any cause, either civil or criminal? I think not. I think when the convention says that the respective consuls "shall have exclusive charge of the internal order of the merchant vessels of their nation," the word "internal" imparts perfect precision to the proposition. "What is "internal" in this context? Plainly, it seems to me, everything which does not appertain, either by the law of nations or the municipal law, to the local jurisdiction. If the acts of disorder, if the "differences" be matters of local jurisdiction, then, as ques- tions, they are, jurisdiction external to the ship. Apply the test to this or any other case of the same principle, and it reconciles all controversy. Where there is in what occurs on board the ship no infringement of the laws of France or of the United States, then the local authority has no concern in the matter, save in the terms of the article to support the consul in maintaining the au- thority and executing the laws of his own government. I do not mean to say that the local authority may not, in either case, inquire into the legality of any alleged act of detention on board the foreign ship; but on ascertaining such legality, there the local authority is bound to stop. And surely no detention could be more thoroughly lawful than that of a (84) mutineer on his way to the place of examination and judgment. 2. As to the extradition of the thirteen men still held in prison at Marseilles. I doubt whether it is properly a question of extradition. It is manifest that these men are not fugitives from the justice of the United States seeking refuge in France. In truth, these men have either been wrongfully taken from our national custody by inadvertanee of the local authority, which ought, in the mere correction of error, to return them to our custody; or else they are to be regarded as prisoners held by the local authority pro 566 OPINIONS OF ATTORNEYS GENERAL tanto acting for us under the consular convention, and bound to re- transfer them on demand to the direction of the consul in order to be replaced on board the Atalanta. But, if it be a case of extradition, then they are subject to it by the terms of the convention of November 9, 1843. That convention, it is true, does not provide for the crime of revolt or mutiny on board ship: but it provides for that of "attempt to commit murder," (tenta- tive de meurtre.) That crime was committed in this case, it was com- mitted within the putative territory of the Union, it is justiciable by the federal courts and by them alone ; and you may, in my judgment, rightfully demand their extradition for this cause. At the same time the convention speaks of "persons who shall be found within the territories of the other," and therefore the case comes within the letter of the convention. It has been held in some parts of the United States, that a mis- demeanor is merged in a felony, and that a party guilty of the higher cannot be charged with the lower offence. But that doctrine is losing ground. And it has never been held that, where an act involves two distinct felonies, the party may not be charged on either, at the election of the prosecuting officers of the government. I concur with Mr. Mason in opinion that the local authority of Marseilles exceeded its lawful power in the present case, in substance as well as in form. (85) The latter fact is implied by the new order of the minister of marine of June 24, 1856, regarding the visitation of foreign mer- chant ships, in the ports of France. This order, supplemental to those of July 26, 1832, and January 24, 1855, admits that theretofore the visitation should be made with concurrence of the consul. It is material to observe, however, that the subject-matter of such visitation, on the face of all these orders, is perquisition into acts in violation of the laws of France. No such acts are pretended in the present case. At the same time, I do entire justice to the motives of the Emper- or's government in this transaction. They are frankly stated by M. Baroche. The guilty parties are subjects of other nations, which, like us, are in amity with France, who seeks only to discharge her public duty to each with perfect impartiality. It is objections of theirs, rather than his own, which M. Baroche brings to the notice of Mr. Mason. Allow me to submit two or three legal suggestions applicable to this point. I do not conceive that another nation, Sardinia for instance, can, 567 Vol. VIII, p. 73 (GUSHING) simply because these men are her subjects, interpose in the question for any purpose except to see that they be lawfully tried. If a sub- ject of Sardinia, having committed a crime in the United States, flee to France, can Sardinia justly object to his extradition? Surely not. If indeed the Sardinian be a fugitive from the justice of Sardinia, having committed a previous crime there, and his extradition be de- manded simultaneouslv by Sardinia and bv the United States, then, indeed, France might be embarrassed by the conflicting appeals to her treaty engagements, and her loyalty. But this embarrassment only applies to the case regarded as a question of extradition. Taking the other, and as it seems to rae the truer view of the subject, there is no conflict of duties on the side of France ; for the guilty parties have been from the beginning, and are still, in the constructive if not in the actual custody of the United States. That consideration furnishes a (86) complete answer to the reclamations of any other government. I have the honor to be, very respectfully, C. GUSHING. Hon. William L. Marcy, Secretary of State. Vol. VIII, p. 98 (Gushing) (98) ESTATES OF FOREIGN DECEDENTS The estates of foreigners dying in the United States are settled by the local authorities. Administration may be granted to the next of kin if he reside in the state. The consul of the decedent 's country can intervene of right only by way of surveillance, and without jurisdiction. Attorney General's Office, September 12, 1856. Sir: I have the honor to respond herewith to the inquiries of the envoy of the Emperor of Brazil, Mr. Gavalcante d 'Albuquerque, regarding the settlement of the estates of persons, subjects of other governments, who may die in the United States, leaving property here. It is necessary to remark, in the first place, that, with exceptions not material to be mentioned here, because of their little concern to the interests of foreigners — with such immaterial exceptions, the reg- ulation of successions in the United States, whether testate or intes- tate, belongs to the local jurisdiction of the individual state. In the second place, if the property of the decedent be real es- 568 OPINIONS OF ATTORNEYS GENERAL tate, the immovable property of the civil law, — then, its dis-(99) position depends altogether on the laws of the place. Unless there be treaty stipulations to the contrary, or the succession consists of per- sonal estate exclusively, the local authorities are alone competent to determine questions of inheritance and succession. As to movables, personal effects, — then, also, unless the contrary be stipulated by treaty, the administration of the estate of a foreign decedent is primarily a question of the local jurisdiction, and his consul 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. The course of proceeding, with relation to the rights of third parties heirs or creditors, may be illustrated by example of the laws of the state of New York. If any person die intestate in the state of New York, leaving ef- fects to be administered, the administration will be granted to the widow or next of kin, or in their default, to a creditor ; provided that the administrator must be a person sui juris in law, and either a citi- zen of the United States, or, if not, then a resident of the state. If no person so entitled appear to administer, then administration will go to some appropriate public officer of the state. If the next of kin be a minor, his guardian may be appointed administrator in his stead. If the party die testate, leaving effects in the state, letters testa- mentary may be granted to the testamentary executor, if he be com- petent to act, that is, if he be sui juris, and unless he be an alien not resident in the state. In either contingency, the distribution of the property in case of intentacy, and its testamentary destination in case of testacy, will be governed by the law of the decedent's proper domicil, with some ex- ceptions, perhaps, where the competing claims of domestic and foreign creditors affect the property. Such is, in substance, the legislation of the state of New York in these respects. There is difference of detail in some of the states ; but their legislation is all referable to the same general principles of jur- isprudence. In all these cases, the consul of the decedent's country has (100) no jurisdiction: he may intervene by way of advice, or in the sense of surveillance, but not otherwise as consid, and of right. Thus, if the decedent, being a foreigner, leave in the state a minor heir, the consul of his coimtry may intervene to see that he have a proper guardian to secure his interests in the succession. Or, if the decedent leave a will intended to operate in his own country, it is the right of the consul, and his duty, if the circumstances require it, 569 Vol. Ill, p. 98 (GUSHING) 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. Sundry legislative acts of the United States, proceed on the as- sumption that American consuls, 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 permit- ted 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. It seems very clear that if any contentious question arises, — as if there be debts due the estate of the decedent, or conflicting claims upon it, — there can be no settlemient of the estate by the consul; it can be administered only by due appointment of the local authority. But if there be no litigious matter involved, a traveller or other transient person dying with personal effects in hand, the consul may well take possession of the same for transmission to the decedent's countrj'. The true relations of the question are sufficiently illustrated by the tenor of an old article of treaty between England and Spain, re- peated by the treatj'- of Utrecht; according to which it is stipulated that the respective foreign consuls may inventory the effects of a de- ceased countryman, and remit them, without intervention of any local tribunal. (See Miltitz, Des Consulats a I'Etranger, partie ii, p. 408, 414, 425.) The difficulty of complying with this stipulation, in Spain, soon became apparent, in consequence of which we have the law of Novem- ber 20, 1724, providing that the local authority shall make duplicate inventory'-, and shall hear and adjudge (101) all contested matters. (Novisima Recopilacion, lib. vi. tit. 13, 1. 4.) The same difficulty must of course have existed in England. Consuls, in one country, or the other, raised the question from time to time, until in the years 1839 and 1840, by undergoing almost simultaneous discussion in Madrid and in London, through 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. (Riquelme, Derecho Internacional, torn, i, p. 422.) A decisive case to the same point, which recently occurred in 570 OPINIONS OF ATTORNEYS GENERAL the island of Mauritius between the French consul and the local auth- orities, is reported by Moreuil. (Agents Consulaires, p. 515.) And the general rule, undoubtedly, in all the countries of Christ- endom, is, that the local authority has power to take the inventory if it will, the functions of the consul being then bounded to the right of assisting in behalf of the legal representatives of the deceased. (San- tos, Traite du Consulat, torn, i, p. 21; torn, ii, note 52.) Such, and such only, except where special stipulations of treaty intervene to change the rule, is the admitted authority of foreign consuls, as to the questions of succession, in the several states of the Union, as well as in Europe. (De Clerq et De Vallat, Guide des Consulats, p. 686.) In the federal courts of admiralty, when adjudicating cases of prize, or other questions of maritime and international right, foreign consuls are admitted to appear in behalf of the interests of their countrymen, absent or present; but even there, what they do is in the nature of surveilance rather than jurisdiction ; for they are not deemed competent to receive the proceeds of (102) property libelled, in the absence of specific powers emanating from competent authority. In so far as the consul has power to act in these matters at all, he may act by procuration. As to the extent of the country, to which the consul's faculty of surveillance reaches in matters of succession, that of course depends primarily on the instructions of his government and the tenor of his exequatur; but any difficulty arising in this respect could be re- moved by the direct interposition of the minister of that government accredited to the United States. I believe these observations cover all the points of inquiry sug- gested by Mr. Cavalcante d 'Albuquerque. I have the honor to be, very respectfully, C. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VIII, p. 169 (Gushing) CITIZENS— FOREIGN CONSULS Citizens of the United States, who hold foreign consulates in the United States, are not exempt from jury duty or service in the militia by the law of na- tions, or by the constitution and laws of the United States, nor unless exempted by the statutes of the state of the Union in which they may respectively reside. Attorney General's Office, November 3, 1856. Sir: Inquiry has been addressed to me by several persons, citi- 571 Vol. VIII, p. 169 (GUSHING) zens of the United States discharging consular functions here by ap- pointment of foreign governments, on the point, whether consuls so situated are subject to be called on to serve in the militia or as jurors. "While it seems a little ungracious to refuse to make reply to these gentlemen, it would, on the other hand, be inconvenient to answer them officially, imless with your concurrence. I propose, therefore, in this communication, briefly to state my impressions on the subject, in the view of transmitting a copy to the parties in ques- tion, provided you do not see objections to that course. No well-established imiversality of international rule exists on the subject of the immimities of consuls accredited between the states of Christendom. Of course, there is diversity of practical administra- tion on this point, according to the tenor of treaties, the customary law, the legislative enactments, and the executive regulations of each particular country. And the incompleteness of provision, and un- certainty of doctrine, are especially notable in Great Britain and in the United States. The stipulations of two recent treaties, that with France of Feb- ruary 23, 1853, and that with the Netherlands, of January 22, 1855, afford apt and sufficient illustration of the state of (170) this ques- tion at the present time ; especially the former, which is likely to con- stitute a new point of departure in the consular relations of the United States and of other powers of Europe and America. That convention stipulates, in the first place, that consuls, of either France or the United States, in the country of the other, shall enjoy "personal immunity, except in the case of crime, exemption from military billetings, from service in the militia or the national guard, and other duties of the same nature, and from all direct and personal taxation, whether federal, state, or municipal." (Art. ii.) Consuls of the two countries are thus placed respectively on the foot- ing of the most enlarged and liberal view of consular functions and rights. (De Clercq et De Vallat, Guide Pratique, liv. i, ch. 1, no. 4.) If. however, the convention proceeds in substance to say, the consul is a citizen of the country in which he resides and officiates, or if he becomes the owner of property there, or engages in commerce, then, save in things appertaining to his consular functions, he is sub- ject to the same local duties and obligations as other citizens of the country, or denizens, wbo are proprietors or merchants. (Art. ii.) This, also, is conformable to the spirit of international jurisprudence. Comparing the two members of the stipulations cited, we per- ceive that foreign consuls, subjects of the government they represent, and not engaged in commerce, and they only, are altogether exempted from service in the militia and municipal charges. 572 OPINIONS OF ATTORNEYS GENERAL They are exempt from taxation, also, unless they have taxable property in the country. If they have property in the country, or if they be engaged in commerce, they are liable to taxation, even if they be subjects of the foreign government ; and a fortiori if they be citizens of the country in which they reside. If the foreign consul, being a subject of the government he rep- resents or of some other foreign government, engage in commerce, he then stands on the footing of other denizens. He will not be compe- tent to serve on juries; nor will he be subject (171) to enrollment in the militia. His condition in this respect is not a privilege as consul, but a disability as alien. As to the particular question now before me, some writers have assumed, without due authority, that a citizen of the country, bearing the consulate of a foreign country, is exempted by the law of nations from service in the civic guards or the militia. Such is the assertion of Phillimore, (International Law, vol. ii, p. 246,) repeated by Home, (Diplomacy, p. 93.) In support of the doctrine, they cite Ch. de Martens. But this author goes further, and affirms that such a per- son ceases for the time being to be a citizen or subject of his country. (Guide Diplomatique, pte Ire, ch, 10, s. 79.) On these premises, and not as a necessary consequence of consular functions, the exemption from mimieipal charges might be sustained. But the fallacy of the premises themselves has been fully exposed by Pinheiro Ferreira. (Ibid, observ. ed. 1837, torn, i, p. 214.) Indeed, the material point has been adjudicated by the courts, in the discussion of the import- ant question of the national character in time of war. (The Indian Chief, iii Rob. p. 27 ; The Falcon, vi Rob. p. 197 ; The Josephine, iv Rob. p. 26; Arnold v. The United Insurance Co., i Johns. Cases, p. 362.) And the necessary subjection of a citizen of the country to its municipal laws, although he be a foreign consul, constitutes, in the opinion of writers of authority, one of the facts to be taken into ac- count by the appointing government. (Borel, Des Consuls, ch. 4; Vattel, Droit des Gens, liv. ii, ch. 2, s. 34; De Cussy, Reglements Con- sulaires, ch. 6, 7; Wildman, International Law, vol. i, p. 135.) Persons thus situated are exempt from municipal charges by the legislation of some countries, as in Denmark, for example, (San- tos, Traite du Consulat, tom. ii, p. 655,) and in France, (Moreuil, Dictionnaire des Chancelleries, tom. i, p. 353.) But, in general, dis- tinction is maintained between such consuls, and those who are sub- jects of the country they represent, and especially consuls of the lat- ter class not engaged in commerce. (De Clercq et De Vallat, ubi 573 Vol. VIII, p. 169 (GUSHING) supra. See, also, Menseh, Manual, p. 16; De Cussy, Reglements Con- sulaires, p. 77.) In the absence of any fixed rule of the law of nations on (172) this point, it must be referred, of course, in each country, to its own particular laws for determination. A citizen of the United States, taking upon himself the consular functions in his coimtry for a foreign government, does not cease to be a citizen of the United States, Thus, the consul general of the Argentine Confederation in New York, or of Chile in Washington, if he be otherwise a citizen of the United States, still remains one. Neither would be ready to admit that he thus becomes an alien, so as to be incompetent to hold land, to o^vn ships, to exercise other privileges and rights of an American. According to a provision of the constitution, it is true, he becomes disqualified to hold, at the same time, an office under the Federal government, without consent of congress. (Art. i, s. 9. See opin- ions, vol. vi, p. 409.) But the constitution does not subject him to any other disqualification. On the other hand, the constitution accords to every foreign con- sul the privilege to be sued only in the federal courts. (Art. iii, s. 2.) I do not know that the question, whether the privilege com- prehends such foreign consuls as are citizens of the United States, has ever been deliberately considered and decided by the supreme court. There is one case reported, of which the federal courts took jurisdic- tion because the party was a consul, though a citizen of the United States; but it does not appear, by the report, that this fact was in- dicated to be considered by the supreme court. (Davis v. Packhard, \ii, Peters, p. 276.) The privilege, in such case, has been recognized by the courts of the state of New York. (Valarino v. Thompson, iii Selden, p. 577.) The point can hardly be considered as a settled one imtil it shall have been passed upon directly by the supreme court of the United States. But here, at any rate, it would seem, constitutional privileges, as well as disabilities, stop. Such a person is not exempted from service in the militia, either by the constitution, or by the act of congress providing for military enrolments. (See act of May 8, 1792, i Stat, at Large, p. 272.) Nor is there in the constitution, or in the acts (173) of congress, anything to exempt such persons from service on juries. (See act of Septem- ber 24. 1789, i Stat, at Large, p. 88; act of May 13, 1800, ii Stat, at Large, p. 82; act of July 20, 1840, v. Stat, at Large, p. 394.) In all these acts, it is true, there is reserve of the right of the states to add to the classes of exemption from service in the militia; 574 OPINIONS OF ATTORNEYS GENERAL and the designation of jurors for service in the federal courts is to be made in conformity with laws in force in the respective states. Thus it happens that any state may, if it see fit, declare a citizen, who is at the same time the consul of some foreign government, dis- qualified for, or exempt from, services in the militia, or as a juror, just as it may pronoimce him disqualified for, or exempt from, the exercise of the elective franchise, or the discharge of any office or duty, political or municipal, under the authority of the states. I cannot undertake to say that in some one or more of the states, it may not have been enacted that citizens acting as foreign consuls shall be relieved from militia duty, jury duty, and other municipal duties; but, in the absence of any such local legislation, they are not so exempted by the constitution, the law of nations, or acts of con- gress. If question be suggested of the power of the several states in this respect, the answer is that where a point of international right, public or private, is definitely settled by the law of nations, it may, perhaps, be looked upon as withdrawn from the domain of municipal authority ; but not otherwise. And if a matter be thus left to the domain of municipal authority, then the inquiry, in the United States, as to whether it is to be regulated by federal law or by the law of particular states, depends on the provisions of the constitu- tion of the United States. Thus, exemption from personal taxes, and from other descrip- tions of municipal charge, is the undoubted right of foreign ministers by the law of nations, and cannot be invaded by the legislation of any one of the states. But the present matter not being definitely determined by the law of nations, it remains subject to the diplomatic or legislative power of the United States in the first instance, and, (174) in de- fault of any action on their part, to the legislative power of the re- spective states. Whether it be expedient or not to bestow these exemptions on citizen-consuls, is a matter not essential to the solution of the ques- tions of law presented to me for consideration. At the same time, two or three suggestions maj^ not be out of place. Beyond all doubt, it is advantageous to the United States, in its relations with a foreign state, to have consular functions bestowed by the latter on their citizens. It is an additional tie of interest and channel of amicable intercourse. On the other hand, it is advan- tageous to the foreign state, especially to those of the second order, which cannot conveniently bear the expense of paid consulates in all the foreign ports or other places where consular services may be 575 Vol. VIII, p. 169 (GUSHING) needed. Besides which, the consul, when he is a citizen or subject of the country where he resides, can, by means of local knowledge or influence, promote the interests of the employing government more effectually than one of its o\vn subjects could do, in all the ordinary relations of commerce at least, if not in political matters. The United States have themselves experienced this in the case of some of their own consuls, subjects of the country in which they reside, who have been useful to us. in circumstances where nothing could have been accomplished by an American. But the counter inconveniences, of according to persons of this class exemption from local charges or duties, are very great. Gon- cede semi-diplomatic functions to consuls, who are subjects of the government employing them, and who are not engaged in commerce. That is well. But the concession of the same rights to consuls in commerce, and subjects of the country where they reside, would in- volve an extension of individual exemption and privileges, unjust to other citizens, and prejudicial to the public interests. The employ- ment of paid consuls, forbidden to engage in commerce, will regulate itself by reason of its financial relations. But there will be no check of this nature to the employment of consuls and vice-consuls, citizens of the countrj^ with local concerns of commerce or property. And the indefinite multiplications of persons so situated, if, in addition to a privileged forum, they are permitted to enjoy (175) exemption from taxes and local charges or duties, is contrary to the policy as well as the interest, not only of the individual states, but also of the United States. (Viveash v. Becker, iii M. and S. 284.) I have the honor to be, very respectfully, G. GUSHING. Hon. Wm. L. Marcy, Secretary of State. Vol. VIII, p. 380 (Gushing) RELATION OF CONSULS TO CRIMINALS Consuls of the United States, in foreign countries, are required to see to persons charged with the commission of crimes at sea or in port, under circum- stances giving jurisdiction to the courts of the United States, and have authority to send such persons home for trial, and in that view, to inquire into the facts of the alleged crime. But the authority of the consul, in such case, is ministerial not judicial in its nature. Attorney General's Office, February 11, 1857. Sir: Your communication of the 30th of December, enclosing 576 OPINIONS OF ATTORNEYS GENERAL a letter from Mr. Blythe, consul of the United States in (381) Havana, submits question as to the amount of evidence on which a consul in a foreign port is authorized to arrest a person and send him to the United States for trial: which question, it is plain, extends to the broader inquiry of the power and the duty of a consul in regard to crimes committed within his jurisdiction by citizens of the United States. We may omit from the inquiry the case of consuls in China and Turkey, who, by statute, exercise judicial authority respecting the acts of Americans in those countries. (Act of August 11, 1848.) Consuls to the Barbary States are invested by treaty with judicial authority. But that authority has not been expressly affirmed by a statute. And although Egypt, certainly, and perhaps Tunis and Tripoli, may be regarded as dependencies of Turkey, and so compre- hended by the statute, yet so much cannot be said of Morocco, Muscat, Japan, nor of sundry other countries out of the pale of international law of Christendom. Leaving these countries to be spoken of in the sequel, my first object will be to consider the criminal jurisdiction of consuls in the countries of Christendom: that is, their general criminal authority. Mr. Blythe refers, not without reason, to the absence of any satis- factory information on this point. There is nothing explicit regard- ing it in any act of congress. Indeed, the only provision of possible reference to it, is a phrase in one of the acts, making it the duty of consuls to '* discountenance insubordination by every means within their power;" meaning, of course, insubordination among seamen on board merchant ships of the United States. We are thus remitted to the general rules of our own public law and of that of nations, including treaties, for the desired information. Consuls are not, by our law, judges; or, to use the language of Mr. Justice Ware, "no portion of the judicial power of the United States is conferred on consuls." (The William Harris, Ware's Rep. p. 367, 379.) In so far as they determine the civil controversies of their countrymen, they do it only as arbi- (382) ters; and, in criminal matters, their authority is one of police only, not of judicial decision. (Kent's Com., vol, 1, p. 42.) This police authority, indeed, goes no further than detention of an accused person, or, at most, the examination of the case, to see whether there be cause of detention. And, even then, it applies only to matters occurring on shipboard; for the local jurisdiction is com- plete as to things occurring on shore. In such matters, the consul may intervene voluntarily, and sometimes he should do so officially, in the interest of his countrymen ; but he cannot exercise jurisdiction. 577 Vol. VIII, p. 380 (GUSHING) The question of his jurisdiction reg^arding criminal acts oecuring on shipboard, is all, therefore, which it is profitable here to consider. As to such acts, it is obvious, in the first place, that the power of the consul cannot be greater than the power of his country'. Hence the preliminary' question is of the penal scope of the laws of the United States. That is defined by statute. It comprehends piracy wherever committed. The pirate is Jiostis hiimani generis, and triable in any coimtry. Beyond this, it comprehends acts "done upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state." (Act of April 30, 1790, s. 8.) All such acts, committed by Americans, are of the jurisdiction of the courts of the United States, and may come before a consul in some form requiring action or direction on his part. Thus, if a crime be committed on the high seas, the master may detain the party for trial; on touching at a port the party may apply to the consul for discharge; and it may be the duty of the consul either to grant or refuse the discharge ; and, in the latter case, he may have occasion to call on the local auth- orities to aid in detaining the party, or in providing to send him home for trial. And the same series of incidents may occur in regard to acts, happening on shipboard, while the ship is actually in a foreign port, but not falling within the local jurisdiction. (See Opinion of September 6, 1856.) The power of the consul is to refuse to discharge, or at most, to detain, or call on the master, or the local authorities, or a man-of-war of his country-, to detain, a person so charged with crime. (383) The new "consular regulations" say that "if a citizen of the United States be charged with a criminal offence alleged to have been committed at sea, on board of an American vessel, (or on such vessel in port, under such circumstances as give jurisdiction to the courts of the United States,) it will be the duty of the consular of- ficers to require that the individual so accused be delivered to him to be sent home for trial." (Nos. 384, 385.) All that is but detention by or at the instance of the consul, for the purpose of trial in the United States. But, in order to determine whether he shall detain, or require detention, the consul must inquire into, and in some sense judge and decide, the question of culpability. That is true. In what manner, and by what rule, shall he inquire and judge? I think he must, of necessity, inquire in the usual way, that is, by hear- ing testimony, not as a judicial officer, to be sure, but as consul. As to judgment, that is, deciding whether to detain or not to detain, he 578 OPINIONS OF ATTORNEYS GENERAL must have large discretion. I agree with Mr. Blythe in thinking that he need not detain upon such mere suspicion of guilt, as would justify an examining magistrate in holding to bail within the United States. There is no judge at hand to supervise the propriety of such deten- tion by writ of habeas corpus, or to admit to bail on motion. The consul, in order to induce him to detain, may well require stronger probable cause of belief in guilt than an examining magistrate. He may do this in the interest of the party. And he may do it in the interest of the government, which must defray the expenses of the detention and custody of the party, and of his conveyance to the United States. If a crime be committed on board an American vessel on the high seas, the ascertainment of it, and the security of the person of the assumed criminal, belong in the first instance to the master. He is the legal superior of all on board, and has quasi-magisterial author- ity to maintain order, repress crimes, and provide for their ultimate punishment by law. The received text-books, and the occasional adjudications touch- ing this point, do but imperfectly exhibit the true extent and nature of the master's authority in this respect, — in consequence of the sub- ject having been too generally considered from (384) the single point of view of the degree of power of the master in the repression or summary punishment of insubordination on the part of seamen. In seeking to measure the degree and quality of his coersive power in this respect, they have adopted the dictum of Casaregis, to the effect that he has no jurisdiction over the crew, but only a sort of economic authority or discipline, like that of a parent over his children, school- master over his scholars, and lord over his slaves or servants. (Disc. 136, No. 14.) But every one sees that we have here analogy only, and that analogy confined to the single fact of the chastisement of a seaman, an analogy even there which in some respects goes too far, and in others not far enough. (Perkins' Abbott on Shipping, p. 234, note.) Accordingly, when the case in hand has appeared to be one of the excess of authority, courts are prone to deny that his power is co-extensive with the paternal power. (Barger v. Little, Ware's Rep. p. 506.) Then, again, if the case be one of justifiable severity by the master, the court has to look beyond the range of a father's or schoolmaster's power for his justification. (United States v. Hunt, ii Story's R. p. 120.) So that, one learned judge, while properly denying to the master any judicial authority, and saying that he is no praefectus morum, quotes, in the next breath, for approbation, the saying that he has power of discipline pro corrigenda male morata 579 Vol. VIII, p. 380 (GUSHING) vita. And another learned judge, with similar doubts as to the sup- position of the master's authority being military in any sort, yet con- cedes that it is " of a peculiar character, and dra^vn from the usages, and customs, and necessities of the maritime naval service." In all these speculations, the courts appear to have disregarded that most necessary- of all necessities, the police authority of the master, as il- lustrated in the condition of things on board of a ship engaged in the transportation of passengers, and especially emigrants in large bodies. In such ships, it becomes plain that the master is neither a parent nor a pedagogue, but the only possible present representation of the public authority of his country. Our law books commonly quote, from the Notahilia of Roccus, a dictum on this point which Roccus himself quotes from D'Juan de Hevia Bolaiios, to wit, the statement that "the mas- (385) ter of the ship has power to confine offenders in the vessel, even though they are not mariners, for the purpose of delivering them up to the competent authority of the territorj^ or district nearest to the place where the offence was committed. Or he may confine them in the port where the ship is to be unladen, in order to have them punished." (IngersoU's Roccus, p. 21.) And this all admit to be a good law. The dictum itself is founded by Bolanos on the text of the Par- tidas. (Part 5 ta, tit. 8 & 9.) The proposition in Bolanos is stronger than it appears in Roccus: for the former says that the master may arrest any delinquent, aunque sea clerigo, that is, not amendable to the secular jurisdiction. (Curia Felipica, lib. iii, c. 4.) And Domin- guez, in commenting on this passage, refers to numerous authors who have discussed and settled the power of the master in this respect. (Ilustracion a la Curia Felipica, torn, ii, p. 110.) And it may happen that the power of the master will, by force of the same circumstances, devolve on the mate ; as if the master became insane, or shall himself commit a crime of aggravated character. (Ibid.) Now, the authority of the consul in the premises necessarily fol- lows from that of the master ; for if the offence be committed in port, or so soon as the ship arrives in port, it becomes the duty of the con- sul, by express provision of the statute, to receive and hear the com- plaints of the ship's company. (Act of July 20, 1840, § 16.) And, on the other hand, it is the right of the master, in such circumstances, to demand the assistance of the consul, who is to advise, aid, and, if need be, direct, the master as to the further detention of the party as a criminal, and his immediate transmission to his country. This thing the consul does officially, in the exercise of his ministerial auth- 580 OPINIONS OF ATTORNEYS GENERAL ority, (not judicial,) and as the local ministerial agent of the United States. If the offence be committed in port, and the local authorities do not take jurisdiction, then, also, the consul is to advise and aid the master in the disposition of the party, in order to his transmission to the United States for trial. In neither case does the consul possess any criminal jurisdic- (386) tion. His obligations and his powers go no further than to inquire, in order to decide what his duty is in the given case, — to take evidence of the facts, — to collect and see to the preservation of documents and material proofs, — to draw up a state- ment of the facts to be reported to his government, — and if, in his judgment, the facts require it, to see to the further detention of the party, and his transportation in custody to the United States. (Con- sular Regulations, Nos. 308-315.) These particulars of the duty of consuls are not expressly de- fined by statute. But they belong to the very function of consuls by the law of nations, and by the general practice of Christendom. (De Clercq et de Vallat, Guide Pratique, p. 356, 366.) And, in thus de- taining criminals, the consul does not usurp any judicial authority. He has no judicial authority. His acts are ministerial only, such as any ministerial officer may lawfully perform, and which he per- forms, of course, as the only ministerial officer of competent authority at hand invested with general power as such. Nay, in the absence of a magistrate, any private person may arrest a criminal for the purpose of taking him before a magistrate, (ii Hawk. P. C, ch. 12.) And to this question it is immaterial how far off the magistrate may be. The maritime jurisdiction of the courts of the United States is independent of space. It is just as per- fect in the remotest seas of Europe or Asia as it is in sight of the harbor of Boston or New York. The foregoing remarks apply more especially to the case of con- suls in the governments of Christendom having treaty relations with the United States. Those of China and Turkey stand on their pecu- liar footing. As to those in other countries, it were to be wished that some legislative provision existed defining their power. While, in those other countries, our consuls have no power to judge, on the other hand we cannot recognize the local jurisdiction as we do in Europe or America, or in Asiastic or African countries dependent on Europe. To the ports, at least, of those other countries, it would seem that the criminal jurisdiction of the federal consuls extends. Crimes committed on board our ships, in such ports, are not com- mitted within the jurisdiction of any state recognized by us as such. 581 Vol. VIII, p. 380 (GUSHING) (387) And parties committing crimes there, on shipboard, may, in my opinion, be detained by the consular agent for remission to the United States. I am, very respectfully, C. GUSHING. Hon. ^Vm. L. Marcy, Secretary of State. Vol. VIII, p. 469 (CusMng) EIGHTS OF CONSULS Foreign consuls have no right, on the trial of a person whose acts affect them as accomplices, to interpose by letter; but may appear as witnesses, or by coun- sel in aid of the defense of the party indicted. Attorney General's Office, September 17, 1855. Sir: I desire to make a further suggestion in regard to the (470) trial of parties charged with recruiting soldiers in the United States for the service of the British government. It is known that instructions on this subject were given by that government to its officers in the United States. We are told by Lord Clarendon that those officers had "stringent instructions" so to pro- ceed as not to violate the municipal law, — that is, to violate its spirit, but not its letter. If so, the instructions themselves violate the sover- eign rights of the United States. But, in the mean time, every consul of Great Britain in the United States is, by the avowal of his government, subject to the just suspicion of breach of law; while, apparently, he must either have disobeyed his own government, or, in obeying it, have abused his consular functions by the violation of his international duty to the United States. In these circumstances, it is deemed highly necessary that the British consul at Philadelphia, or any other officer of the British government, shall not be suffered to interfere in the trials, as he at- tempted to do on a previous occasion ; — that no letter of his be read, except in the due form of evidence; and that if he have anything to say. he shall be put on the stand by the defense, in order that he may be fully cross-examined by the prosecution. It is clear that he has no right, by any rule of public law, or of international comity, to be heard in the case by the court, other wise than as a witness, whether enforced or volunteer. I have the honor to be, very respectfully, G. GUSHING. James C. Van Dyke, Esq., U. S. Attorney, Phila. 582 OPINIONS OF ATTORNEYS GENERAL Vol. VIII, p. 476 (Gushing) BRITISH ENLISTMENTS Report to the president on the legal questions involved in the enlistment of troops by British officers in the United States. Attorney General's Office, May 27, 1856. (Extract) Sir: I deem it incumbent on me to bring to your notice sundry passages in official communications of the British min- ister, Mr. Crampton, to his government, as they appear in the "Papers relative to Recruiting in the United States," recently pre- sented to parliament, which contain palpable errors of statement touching me personally or my official action as attorney general. 1. In a letter to the Earl of Clarendon, of the 19th of November, 1855, in commenting on Mr. Marcy's letter to Mr. Buchanan, of the 15th of July, 1855, Mr. Crampton assumes that the British consuls, implicated in illegal enlistments in the United States, were prevented, by the tenor of my instructions to the district attorney of Philadel- phia, from testifying to their alleged innocence. (Papers ut supra, p. 128.) That statement is not true. The district attorney w^as instructed to object to any attempt of the British consul to do what he had undertaken on a previous occa- sion to do, that it, to interfere in the trials by officious letters written for the purpose ; but, instead of being forbidden, it was expressly sug- gested, that he should appear as a witness. It is obvious, that it cannot be admitted that a person, who deems himself inculpated by judicial proceedings, be allowed to interpose in the trial by mere letters of denial or ex parte explanation. He has no right, in law or courtesy, to any such privilege. If he desires to be heard, he must appear in a legal manner, that is to to say, as a witness, in order that he may be examined so as to elicit the truth. The British consul at Philadelphia might have volunteered as a witness in the case of Hertz, if he had seen fit. He ought to have done so, if his testimony, lawfully given, could have (477) proved anything material, either to the prosecution or the defense. There was nothing extraordinary in this particular matter, ex- cept the presumption of a foreign consul, in supposing that he might interfere by volunteer letters, to affect the course of criminal justice in the United States. 2. In Mr. Crampton 's letter to the Earl of Clarendon, of Nov- 583 Vol. VIII, p. 476 (GUSHING) ember 27, 1855, it is alleged that the proceedings against Hertz and others, in Philadelphia, were instituted, not against the persons who were ostensibly arraigned, but against the British diplomatic and consular agents in the United States. (Ubi supra, p. 134.) That is incorrect. The proceedings were commenced in March, 1855, when no suspicion was entertained, by this government, of the relation of Mr. Crampton and of British consuls to the illegal acts in question. It is true, however, that among the objects expected from, and accomplished by, the trial, was the legal ascertainment of facts alike important to the British government and that of the United States. 3. In the same letter, ]\Ir. Crampton says that, at the time of the trial referred to, (September 21, 1855,) "the United States gov- ernment must have known that all recruitment, legal or illegal, had been put to a stop to several weeks before." (Ubi supra, p. 134.) That is a mistake. This government knew nothing on that point, at that time, except what Lord Clarendon had said in his letter to Mr. Buchanan of July 16, 1855, namely, that the British government had sent orders to put an end to "all proceedings for enlistment." Lord Clarendon did not mention when the orders were sent; nor does the context of his letter show whether the orders spoken of applied to the United States only, or also to British America. At what time those orders took effect, to whom sent, and their exact scope, did not then appear of public notoriety, and was never communicated to this government. This government well knew that recruitments took place in August ; it did not know that they had ceased in August. So soon as it had satisfactory information of their cessation, in- (478) structions were given to desist from all further judicial proceedings, except against official agents of the British government. (Letter of the at- torney general to Mr. McKeon, of October 20, 1855, ubi supra, p. 129.) 4. In the same letter Mr. Crampton says that the United States government must have knowTi that the proceedings of Hertz were, from the moment he attempted to enter upon a system of recruitment, disavowed by her majesty's officers." (Ubi supra, p. 136.) This is not so. This government knew the contrary of what is thus alleged. It knew that Mr. Crampton had corresponded with Hertz. (Ubi supra, p. 67.) It also knew that Hertz was officially employed and paid by Mr. Howe, as the latter has since declared on oath. {\jh\ supra, p. 218.) 5. In his letter to the Earl of Clarendon, of March 3, 1856, Mr. Crampton assumes that he and the inculpated consuls were the real parties defendant, and then proceeds to argue on the further assump- 584 OPINIONS OP ATTORNEYS GENERAL tion that they were prohibited from appearing in their own defense. (Ubi supra, p. 178.) I have already commented upon and corrected the error of fact involved in these assumptions, in so far as regards the consul. As to Mr. Crampton, he also could have offered his testimony, if he had pleased. If he suggest that considerations of diplomatic dignity would prevent this, the reply is, that considerations of dip- lomatic dignity should have prevented his engaging, in association with persons now said by him to be of equivocal character, in the sys- tematic violation or evasion, for a period of nearly six months, of the mimicipal law of the United States. He well knew, in April, that persons, in the actual pay of his government, were under prosecution in Boston, New York, and Phila- delphia, and should then have anticipated that his name would event- ually come in question before the courts of justice; all the personal annoyance, and other inconveniences of which he encountered volun- tarily, and with no right now to complain of the consequences. For the rest, the law of nations, it is true, exempts Mr. (479) Crampton from trial for misdemeanor ; but it is idle for him to sup- pose that his hired agents in the commission of the misdemeanor, who are not themselves invested with diplomatic privilege, were to have it accorded to them otherwise, or that his participation in the acts per- petrated should not come under observation in a court of justice, without his being able to appear directly as defendant on the record. 6. In the same letter, Mr. Crampton repeats the erroneous statement that ''the consuls were not allowed to be heard, on the trial of Hertz." (Ut supra, p. 179.) I have already remarked on this point. I add, that on the trial of Wagner in New York, pains were taken to obtain the evidence of the active official agent of enlistment there. Consul Barclay's deputy, Mr. Stanley, but without success. I have the honor to be, very respectfully, C. CUSHING. To the President. Vol. IX, p. 96 (Black) SPANISH DESERTERS 1. Under the treaty with Spain, and the act of congress which was made to carry it out, the apprehension and delivery of a seaman, who is alleged to be a deserter from a Spanish ship, is a judicial duty, and the state department cannot change what a judge has done. 585 Vol. IX, p. 96 (BLACK) 2. To prove the fact of desertion, the treaty requires the exhibition of the ship's roll, with the name of the deserter upon it, and this is not met by the mere certificate of a Spanish consul. Attorney General's Office, September 24, 1857. Sir : I have read the note addressed to you by the Spanish min- ister on the case of ]\Ianuel Castro, a deserter from the Spanish schooner San Juan Baptista, at Key West. From that note, and from other papers on the same subject which you have sent nie, it appears that the deserter was arrested after the vessel had put to sea, on a warrant issued by a justice of the peace. But he was discharged by a state judge on a writ of hahcas corpus. The Spanish consul then applied to the district judge of the United States for another warrant, which was refused. This is the subject of complaint. You ask whether it is well founded, and what can be done to prevent a repetition of such grievances. Under the treaty with Spain, and the act of congress which was made to carry out that and other treaties of the same kind, the ap- prehension and delivery of a deserter is a judicial duty. It must be performed according to the judgment and conscience of those to whom it is assigned. The judges are sworn to administer it faith- fully according to the best of their learning and ability ; and that is all that can be demanded of them. You cannot require them to de- cide a given question in a particular way, much less can you reverse a sentence already pronounced. When a cause is pending before the courts in which our own or a foreign government has a special interest, the president will al- ways see that the facts and the law shall (97) be properly presented by competent counsel, and sometimes he prescribes what line of argu- ment shall be used. But the judges must be left to act upon their own separate possibility. Inasmuch, therefore, as this is a judicial duty, you cannot change what has been done, even if you are sure that it was done erroneously. Nor do I see what measures you can take which will be absolutply sure to prevent the same judge or an- other from doing the like hereafter. But I think the decision was right. The treaty requires that in such a case the Spanish consul in American ports shall exhibit the ship's roll, and the name of the deserter must appear in it before he can be arrested, held in custody , or delivered. The act of congress C4 Stat, at Large. 360) declares that the arrest may be made on proof by exhibition of the register of the vessel, ship's roll, or other official document. Here there was no exhibition of the roll, or any other 586 OPINIONS OF ATTORNEYS GENERAL corresponding document which contained the names of the ship's crew. The consul produced an extract from the roll, certified by himself, but he did not exhibit the original roll carried by the vessel, as the treaty in plain terms required him to do. It might be convenient, in cases like this, to dispense with the production of the original document, and let the rights of the person claimed as a deserter depend on the mere certificate of a consul ; but a written compact between two nations is not to be set aside for a shade or two of convenience more or less. The law is so written, and that is a sufficient answer to all that can be said against this pro- ceeding. I am, with great respect, yours, &c., J. S. BLACK. Hon. Lewis Cass, Secretary of State. Vol. IX, p. 383 (Black) TREATY BETWEEN PERU AND THE UNITED STATES Under the treaty of 1851 with Peru, the United States are not bound to pay a consul of the Peruvian government the value of property belonging to a de- ceased Peruvian, on whose estate the consul was entitled to administer, which may have been unjustly detained and administered by a local public administrator. Attorney General's Office, August 2, 1859. Sir: Juan del Carmen Verjel, a Peruvian citizen, died intes- tate, on board of the steamer Empire City, on her passage from New York to the Pacific, in May, 1858. Some personal property which he had with him at the time of his death was brought back to New York by the Pacific Steamship Company, and deposited with the pub- lic administrator. By the 39th article of the treaty of 1851 between Peru and United States, the Peruvian consul at New York was, ex officio, the administrator of his deceased countryman, and therefore entitled to the possession of the goods which the public administrator took and administered. The consul, therefore, had a right of action to recover the goods or their value. But, instead of bringing a suit, he applied through the state department for compensation out of the federal treasury. I think you are bound to dismiss his application. The treaty makes no promise that the government of the United States will put the personal property of a deceased Peruvian into the hands of the consul and keep it there, or else pay him the price of it. It secures to him simply the legal rights of an administrator, which consist, among other things, of authority to sue for goods of his de- cedent, if they are unlawfully taken or detained from him. 587 Vol. IX, p. 383 (BLACK) I repeat, that the act of the steamship company, and of the pub- lic administrator, in detaining the goods of the decedent from the Peruvian consul, was imlawful, and a wrong which may be justly complained of. The only error of the consul and the minister con- sists in seeking redress (384) where there is no authority to furnish it, and in refusing the justice which the judicial authorities would have given them for the asking. It appears that the district attorney of the United States, in pursuance of your instructions, tendered his ser- vices to institute and carry on the proper proceedings, and that the minister distinctly refused to allow the bringing of an action. If this refusal be persisted in, I know not what more we can do In this case. I am, very respectfully, yours, &c., J. S. BLACK. Hoyi. Lewis Cass, Secretary of State. Vol. IX, p. 384 (Black) POWER OF AMERICAN CONSULS 1. An American consul, under the act of February 28, 1803, has no authority, by withholding a ship 's papers, to compel payment of demands for which suit haa been brought by a creditor, after her release on bond by the court. 2. Such consul, under the 28th section of the act of August 18, 1856, has authority to detain the papers of a ship to enforce only the payment of wages in certain cases and consular fees; but he has not a general power of deciding upon all manner of disputed claims against American vessels. 3. Such consul may recover the penalties incurred by the master of a vessel for neglecting to deposit his papers in a court of competent jurisdiction, but he has no right to enforce otherwise the payment of the penalties. Attorney General's Office, August 6, 1859. Sir : I have considered the questions proposed by the American vice-consul at Valparaiso, which you have referred to me, arising out of his ofTicial proceedings in the case of the steamer Independence, of New York. On the 25th of March, 1859, this vessel arrived at Val- paraiso, and her papers were deposited at the American consulate. She had previously arrived twice at that port and departed from it without depositing her register, as required by the act of 28th Feb- ruary, 1803. On the 30th of March several claims against the steamer were on file at the American (385) consulate. They were for con- sul's fees, for coal, for lighterage, for wages, and for an agent's ser- vices and expenses. The vice consul demanded the payment of these claims before returning the register, and also the payment of one thousand dollars penalties for the two previous violations of the act 588 OPINIONS OF ATTORNEYS GENERAL of 1803. After much dispute the attorneys of the owner paid some of these demands under protest, and gave bond for the remainder, and the papers were given up. The propositions submitted by the vice-consul are all embraced in the single question whether he was right. I think he was in error in two or three respects. To point out these will be the clearest and easiest way to answer your inquiry. 1. Some of the claims against the steamer were disputed. Suits had been brought for them and security had been entered. The vice- consul had notice of this ; and he had, therefore, no right to compel the payment of the demands by withholding the ship's papers. After a vessel has been attached by a creditor, and has been released on bond, he cannot demand that the consul shall detain it. To do so would be vexatious, and perhaps deprive the owner of a just defense. 2. But nearly all the claims against this steamer were of a class over which the vice-consul had no jurisdiction. His right to enforce payment of them is claimed under that clause of the 28th section of the act of August 18, 1856, (11 Stats, at Large, 63,) which provides that "all consular officers are hereby authorized and required to re- tain in their possession all the papers of such ships and vessels which shall be deposited with them as directed by law , till payment shall be made of all demands and wages on account of such ships and vessels. ' ' In the book of consular regulations, published in 1856, this clause is inserted, apart from the remainder of the section, and the word ' * such ' ' is omitted. I think it should be construed in connection with the rest of the section in which it occurs, and with other parts of the same act. It refers to the demands and wages of which cog- nizance had (386) been given to consuls. It gives them no new juris- diction, but simply provides a means of enforcing that which they already had. They can retain the papers, to compel the payment of wages in certain cases and consular fees; but they do not possess a general powder of deciding upon all manner of disputed claims and demands against American vessels. This view of the law does no violence to its language. The words "such ships and vessels" evidently refer to the ships and ves- sels previously mentioned. The terms "all demands and wages," being used in connection, warrant the belief that the former was em- ployed in a limited sense. In its general import, it includes wages; and to construe it broadly, therefore, makes the sentence redundant. These are but slight grounds of construction, but they are strength- ened by the more potent one, that a grant of judicial power is not to be taken by implication, and that it is not to be presumed that coH' 589 Vol. IX, p. 383 (BLACK) gress intended to confer upon every consular officer an authority almost equal to that of a court of admiralty. 3. The vice consul also exacted the penalties incurred by the master of the Independence imder the act of 1803. But by the terms of that act the penalty is "to be recovered by the said consul, vice- consul, commercial agent, or vice commercial agent, in his own name, for the benefit of the United States, in any court of competent juris- diction." The law makes the consul the party to bring the suit, not the judge to decide it. In the case in hand the vice consul demanded the penalty, decreed it to be due, and enforced its payment. 4. The facts concerning the engineer's claim for wages are not \evy clearly stated. It does not appear upon what voyage they were earned. I will, therefore, intimate no opinion about it. Yours, very respectfully, J. S. BLACK. no7i. Lewis Cass, Secretary of State. Vol. IX. p. 426 (Black) DETENTION OF PAPERS OF A SHIP IN A FOREIGN PORT An American consul in a foreign port has no power to retain the papers of vessels which he may suspect are destined for the slave trade. Attorney General's Office, May 3, 1860. Sir : There is no statute which requires an American consul in a foreign port to retain the papers of vessels which he may suspect are destined for the slave trade. (427) If this power be not given by law, the want of it cannot be supplied by departmental regulation. When congress enumerated the grounds upon which a consul might detain the papers of a ship in a foreign port, this was omitted, no doubt for satisfactory reasons. If the commander and crew are bent on a piratical voyage, measures much stronger than this will be re- quired. In such a case the vessel may be seized and sent into the United States for such proceedings as will not only break up the voyage, but condemn the vessel and punish the crew and officers as criminals. The naked right to detain ves.sels would be of little avail without the presence of some naval force to carry it into effect, and when such naval force is present, the commander can do all that is necessary under existing laws without any warrant from a consular officer. Very respectfully, J. S. BLACK. Hon. Lewis Cass, Secretary of State. 590 OPINIONS OF ATTORNEYS GENERAL Vol. IX, p. 441 (Black) CONSULAR FEES 1. No more than fifty cents can be charged for certifying invoices, and for certifying the place of growth or production of goods made duty free by the reci- procity treaty with Great Britain, although such certificate may be accompanied by an attestation of the official character of a magistrate, and of the value ol the goods. 2. Consuls, as well as consular officers and agents, are subject to this re- striction. 3. It applies to all the British North American Provinces included within the reciprocity treaty. Attorney General's Office, July 16, 1860. Sir : I have considered the questions which you have referred to me in relation to consular fees in certain cases. The third section of the act of March 3, 1859, making appro- priations for diplomatic and consular expenses, provides: "That the fees for certifying invoices, and for certifying the place of growth or production of goods made duty free by the reci- procity treaty, to be charged by the consul general for the British North American Provinces, and subordinate consular officers and agents in said provinces, shall be fifty cents for each certificate, and no more," (11 Stats, at Large, 404.) On referring to the forms prescribed by the secretary of the treasury which were in use at the time of the passage of this act, and which are still employed, it appears that the consular certificate to an invoice is based upon an affidavit made by the shipper of the goods, either before the consular officer himself, or before some local magistrate. When the latter course is pursued, the consular cer- tificate to the (442) invoice includes an attestation of the official char- acter of the person who administered the oath. By the established tariff of fees, a consular officer is entitled to two dollars "for au- thenticating the signature of a governor, judge, notary public, or other officers," and it is contended that, notwithstanding the act of 1859, he may demand two dollars for that portion of the certificate to the invoice which attests the signature of the local magistrate. But this position cannot be maintained. Where an act of congress gives a certain compensation for an entire service, including several other duties, for which, by previous laws or regulations, specific fees were allowed, no more can be charged for the whole than the sum named in the latter statute. Before the passage of the act of 1859. no person seems to have thought that the fee for a consular certificate to an invoice was more 591 Vol. IX, p. 441 (BLACK) than two dollars, although it included a certificate of the official char- acter of the magistrate before whom the oath was made. But the argument which would make the fee amount to two dollars or more now, would have made it at least four dollars then. The fact that only two dollars were allowed for the entire consular certificate prior to the 3d of ^larch, 1859, is important therefore in a double aspect. It shows that, by a settled construction of the tariff of fees, consuls were not permitted to make separate charges for two certificates in- cluded in one ; and it also warrants the conclusion that the fee of two dollars for the combined services was the very thing which congress intended to reduce. The obvious purpose of the third section of the act of March 3, 1859, was to diminish the costs of reciprocial trade between the British North American Provinces and the United States, in accord- ance with the spirit of the treaty. It is our duty to carry that intention into effect, and not to defeat it by an ingenious construction which would practically maintain the original fee bill. Another question which you have referred to me is, whether the words "subordinate consular officers and (443) agents," in the act of 1859, include consuls. As defined in the 31st section of the act of August 18, 1856, they would not; but the definitions therein es- tablished apply only to that act and to former acts which were not repealed by it. It would be strange indeed if congress could declare that a particular word should have a certain meaning in all future legislation. This was not attempted by the section referred to, as its language plainly shows. We are therefore at liberty to construe the words "subordinate consular officers and agents," in the act of ^March 3, 1859, upon general principles, and I think it is clear that they were meant to embrace all consular officers below the grade of consul general. The subject-matter of the enactment was consular fees on goods made duty free by the reciprocity treaty. The inten- tion of congress was to reduce those fees, and no apparent reason exists why fees charged by consuls should be excepted. They are influded by the words of the law according to their common accepta- tion, and thoy are also within the spirit and reason of the statutes. I am therefore of opinion : 1. That no more than fifty cents can be charged for certifying invoices, and for certifying the place of growth or production of goods made duty free by the reciprocity treaty, although such certificate may be accompanied by an attestation of the official character of a magistrate, and of the value of the goods. 2. That consuls, as well as other consular officers and agents, are subject to this restriction. 592 OPINIONS OF ATTORNEYS GENERAL 3. That it applies to all the British North American Provinces included within the reciprocity treaty. Yours, very respectfully, J. S. BLACK. Hon. Lewis Cass, Secretary of State. Vol. IX, p. 496 (Black) CLAIM OF J. T. PICKETT A United States consul whose salary exceeds $2,500, is entitled to be paid his fees as commissioner for taking depositions in an admiralty proceeding in a United States district court. Attorney General's Office, October 16, 1860. Sir: It appears from your letter of September 27, that J. T. Pickett, United States consul at Vera Cruz, by virtue of a commis- sion from the district court of the United States for the district of Louisiana, took certain depositions in admiralty proceedings against the captured steamers "Miramon" and "Marquis de la Havana." He now asks to be paid his fees as commissioner; and the question submitted is, whether he can have them, it being admitted that his salary exceeds $2,500, In the case of Converse vs. the United States, (21 Howard, 463,) the supreme court held that a collector of customs, who had received the maximum amount of his annual compensation as such, viz: $6,000, was nevertheless entitled to commissions upon certain pur- chases and disbursements made by him under the direction of the secretary of the treasury. There is no difference in principle between the claim of Mr. Pickett and that of the collector's representative in the case which I have cited. The taking of these depositions was not the duty of the consul, as consul. The compensation of a commissioner is regulated by law, and I can see no objection to its payment which would not have ap- (497) plied with perhaps greater force to the payment of commissions to a collector who had received the full amount of his official compensation. I am free to admit, that the views of a majority of the judges upon this point are contrary to my own opinion, but nevertheless I cannot advise any action which will bring the ex- ecutive and judicial authorities of the government into hostile col- lision. Very respectfully, yours, &c., J. S. BLACK. Hon. Jacot Thompson, Secretary of the Interior. 593 Vol. IX, p. 500 (BLACK) Vol. IX, p. 500 (Black) CASE OF THE CONSUL AT HALIFAX The i>eual provisions of the seventeenth section of the diplomatic and consular act of August 18, 1S56, only apply to the taking of greater fees than are al- lowed by the act itself, and do not therefore extend to the taking of greater fees than are allowed by the third section of the act of March 3, 1859. Attorney General's Office, November 22, 1860. Sir : I have the honor to say, in reply to your letter of October 6th, that the penal provisions of the seventeenth section of the diplo- matic and consular act of August 18, 1856 (11 Stats, at Large, 58) only apply to the taking of greater fees than are allowed by the act itself, and do not therefore extend to a taking, by a consul in the British North American provinces, of greater fees than are allowed by the third section of the act of March 3, 1859. If the consul at Halifax has received greater fees than were al- lowed by the latter act, and still retains them in his hands in conse- quence of a notice not to pay them into the treasury, he may be permitted in self-defence to return the excess over the legal amount to the proper parties. But beyond this the question of his liability is a personal one, upon which it is not the duty of the government to give him advice. Very respectfully, yours, &c. J. S. BLACK. Eon. Lewis Cass, Secretary of State. Vol. IX, p. 507 (Black) CASE OF J. P. BROWN By decision of the supreme court, a person holding two compatible offices or emplojTnents under the government is not precluded from receiving the salaries of both, by anything in the general laws prohibiting double compensation; but the prohibition in those laws extends to every case where (508) the duties for which extra compensation is claimed are performed without a regular appointment authorized by law. Attorney General's Office, November 24, 1860. Sir: You have submitted to me several propositions in relation to the compensation of J. P. BrowTi, who has occupied various diplo- matic and consular offices in Turkey since the year 1855. It is neces- sary to treat the items of his claim in detail, for they arise under different acts of congress, and cannot all be disposed of under one principle. 1. In the fir.st place, he was appointed dragoman, and held that 594 OPINIONS OP ATTORNEYS GENERAL office from July 1, 1855, until after the act of 1856 took effect. Dur- ing this same time he was also authorized by your department to act as consul. I am disposed to regard him during that period as a vice- consul regularly appointed. The office was recognized in the legisla- tion which existed previously to 1856, and the appointment was one which the state department had the right to make, (7 Opin,, 512.) According to the decision of the supreme court in Converse vs. the United States, (21 IIow., 463,) a person holding two compatible of- fices or employments under the government is not precluded from re- ceiving the salaries of both by anything in the general laws prohib- iting double compensation, and this principle would appear to be ap- plicable to this portion of Mr. Brown's claim. 2. On February 19, 1857, Mr. Brown was appointed consul-gen- eral. He also, from that date until the 23d of September, 1858, dis- charged the duties of secretary of legation and dragoman. It is very clear that he cannot be compensated for discharging these additional duties under the ninth section of the act of August 18, 1856, which provides for the case "when to any diplomatic office held by any person there shall be superadded another," because the office of con- sul-general which he held was not a diplomatic one. Nor do I think that the performance of these additional duties will entitle him to compensation under the decision of the court in the case of Con- (509) verse vs. the United States. Had he, in addition to the office of consul-general, been actually appointed as secretary of legation and dragoman, the case would have been different. But the act of August 31, 1852, expressly declares that "no person who holds, or shall hold, any office under the government of the United States, whose salary, pay, or annual compensation shall amount to the sum of two thousand five hundred dollars, shall receive compensation for performing the duties of any other office. ' ' I understand the prohibi- tion to extend to every case where the duties for which extra com- pensation is claimed are performed without a regular appointment authorized by law. The case of Converse was that of a collector, whose compensation, as such, amounted to more than two thousand five hundred dollars, but who also held a regular appointment as disbursing officer of the treasury department, and he was allowed also to receive the compensation authorized by law for such agency. I shall of course advise you to respect the authority of that decision, but I shall not advise you to stretch it a single inch. 3. On the 23d September, 1858, Mr. Brown was appointed sec- retary of legation and dragoman. For these two appointments he was entitled to receive three thousand dollars per annum, under the first section of the act of August 18, 1856. It is stated that after the 595 Vol. IX, p. 507 (BLACK) 23d September, 1858, he continued to as consul-general, without reg- ular appointment. For reasons already stated, he is not entitled to any compensation for performing the duties of that office. Very respectfully, yours, &c., J. S. BLACK. Ban. Lewis Cass, Secretary of State. Vol. XI, p. 72 (Bates) DEPOSIT OF SHIPS' PAPERS AT PORTS IN THE BRITISH NORTH AMERICAN PROVINCES 1. The master of an American vessel sailing to or between ports in the British North American Provinces is required, on arriving at any such port, to deposit his ship 's papers with the American consul. 2. The act of August 5, 1861, does not change or affect the duties of master! of American vessels, running regularly by weekly or monthly trips, or otherwise, to or between foreign ports, as imposed by the act of February 28, 1803. 3. If an American vessel is obliged by the law or usage prevailing at a (73) foreign port to effect an entry, and she does enter conformably to the local law or usage, her coming to such foreign port amounts to an " arrival, ' ' within th« meaning of the 2d section of the act of February 28, 1803, independently of any ulterior destination of the vessel, or the time she may remain, or intend to re- main, at such port, or the particular business she may transact there. 4. The fees receivable by a consul for receiving and delivering a vessel's register and other papers, under the act of 1803, are prescribed by regulation of the president. 5. The act of August 5, 1861, w^as merely intended to limit the amount of fees payable annually to American consuls by the masters of American vessels running, by regular trips, to or between foreign ports. Attorney General's Office, September 7, 1866. (78) (Extract) The act of 1803 affixes no fee to the service which a consul performs when he receives and delivers a vessel's register and other papers ; but that service is made provision for in the tariff of consular fees prescribed by the president in accordance with the pro- visions of the act of August 18, 1856, regulating the diplomatic and consular systems of the United States. In the schedule of consular fees now in force the consul, for the service named, is entitled to charge one cent on every ton registered measurement of the vessel, if under one thousand, and for every additional ton over one thousand, one-half of one cent. (Circular No. 49, page 12, State Department, July, 1864.) I am, sir, very respectfully. Your obedient servant, EDWARD BATES. lion. Wm. H. Seward, Secretary of State. 596 OPINIONS OF ATTORNEYS GENERAL Vol. XI, p. 508 (Speed) JUDICIAL POWERS OF UNITED STATES CONSUL IN SANDWICH ISLANDS Attorney General's Office, June 26, 1866. (512) (Extract) In making this agreement in regard to deserters, the two governments announced the principle, that the question whether the shipment of the seaman was lawful or not, is one which should be remitted to the authorities of the country to which the ves- sel belongs. In the treaty with France, consuls are made judicial officers, and given cognizance of all the crimes, misdemeanors, and other matters of difference, in relation to the internal order of the vessel, which may supervene between the master, the officers, and the crew. The ques- tion whether a seaman is bound to fulfill the obligation imposed by the shipping-articles is certainly a matter of difference betwixt the mas- ter and one of the crew. The fact must be first determined that he is of the crew before the consul can take jurisdiction. Until the fact is made manifest that he is of the crew, no rules in regard to the internal order of the vessel can be enforced. Upon the question whether he is not of the crew, depends all the power and authority of the consul. To say that the consul can decide all questions concerning the internal order of the vessel, except the question whether the man is or not of the crew, is, in effect, destroying his jurisdiction, making it of no value, by depriving him of the power to determine conclusively the very question upon which all order in the vessel can be supported. Unless consuls have the power to decide, and to decide without inter- ference from the local courts, who compose the crew, it seems to me that all their judicial powers are idle. It is a question concerning the internal order of the vessel; because upon it depends all right to impose and enforce rules for the government of the crew, and each member of (513) the crew. If such is not the case, the consuls could not rightfully take cognizance of any case until the local courts had passed upon the validity of the shipping-articles, and any and every seaman could arrest the proceedings of the consuls, by pleading that he had signed when he was drunk, or had been coerced by force, or induced by fraud to do so, • •**•*••• I am, sir, very respectfully, Your obedient servant, JAI^IES SPEED. Hon. Wm. H. Seward, Secretary of State. 597 Vol. XII, p. 1 (STANBERY) Vol. XII, p. 1 (Stanbery) NOTAEIAL POWERS OF AMERICAN CONSXJLS 1. No law or regulation requires an American consul to certify to the of- ficial character and acts of a foreign notary public. 2. Consuls of the United States are authorized, by the 24th section of the act of August 18, 1856, to perform any notarial acts; but a certificate as to the official character of foreign notary is not a notarial act. Attorney General's Office, August 1, 1866. Sir: I have received your letter of the 24th ultimo, with its en- closures. It appears that a power of attorney, purporting to be executed at Liverpool, by Edward Lawrence, and acknowledged before a no- tary public at Liverpool, has been presented to Mr. Dudley, our consul at that place, for his official certificate, that the notary public was duly authorized, admitted, and sworn, and that full faith and credit are due to his notarial acts. Mr. Dudley states that this power of at- torney has relation to property acquired during the war, in violation of the proclamations of the president and acts of congress, and by parties who were actively engaged in running the blockade. Under these circumstances, i\Ir. Dudley had doubts as to whether he ought to verify the paper ; and you ask my opinion upon this question, and whether you may lawfully instruct Mr. Dudley to withhold his veri- fication. I do not find that there is any law or regulation which com- pels a consul to give (2) such a certificate as that in question, even in aid of a lawful purpose. The 24th section of the act to regulate the diplomatic and consular system of the United States, approved Aug- u.st 18, 1856, (11 Stats., 60,) authorizes any consular officer to per- form any notarial act or acts, such as any notary public is required or authorized by law to do or perform within the states. The certificate in question does not fall within the functions of a notary; and besides, if it were a notarial act, the duty is not im- perative. The 22d section of the same act vests the president with authority to give such orders and instructions to all diplomatic and consular officers, touching the transaction of their business, as may not be inconsistent with the constitution or any law of the United States. I am, therefore, of opinion, that you may lawfully instruct the con- sul not to verify this paper. I am, sir, very respectfully, Your obedient servant, HENRY STANBERY. Hon. Wm. H. Seward, Secretary of State. 598 OPINIONS OF ATTORNEYS GENERAL Vol. XII, p. 97 (Stanbery) COMPENSATION OF CONSULAR AGENTS 1. The 3d section of the act of June 15, 1866, is limited to unsalaried consuls and commercial agents. 2. Consular agents are entitled to the compensation allowed them under the 15th section of the act of August 18, 1856. 3. The fees of consular agents, receivable under the act of 1856, are not re- turnable in the accounts of the consuls, to whom they are subordinate, under the act of 1866. 4. The fees collected by consular agents, which are payable under the act of 1856 to their principals, are returnable in the accounts of such principals. Attorney General's Office, November 22, 1866. Sir: I have considered the question which you have stated as arising upon the 3d section of the act of July 25, 1866, making ap- propriations for the consular and diplomatic expenses of the govern- ment for the year ending June 30, 1867, and for other purposes. That section provides as follows : ' ' That all fees collected by any consul or commercial agent not mentioned in schedule B or C, by any vice-consul or commercial agent appointed to perform their du- ties, or by any other person in their behalf, shall be accounted for to the secretary of the treasury in the same mode and manner as is provided for in section 18 of the act approved August 18, 1856, en- titled 'An act to regulate the diplomatic and consular system of the United States.' And when the fees so collected by any such consul or commercial agent amount to more than $2,500 in any one year, over and above expenses of office rent and clerk hire, to be approved by the secretary of state, of which return shall be made to the secre- tary of the treasury, the excess for that year shall be paid to the sec- retary of the treasury in the mode provided for by said act." The first question which you state is, whether, under this provi- sion, the fees collected by a consular agent are to be considered as his own fees, or as forming a part of (98) those collected and returned by the principal consular officer by whom he is nominated and to whom he is subordinate ? I do not think that consular agents are embraced at all by the 3d section of the act of 1866. Their compensation is still, in my opinion, governed by section 15 of the act of August 18, 1856, which entitles them, as compensation for their services, to such fees as they may collect in pursuance of the provisions of that act, or so much thereof as shall be determined by the president. (11 Stats., 57.) Consular agents are not consuls or commercial agents within the meaning of the laws regulating the consular system of the United States. 599 Vol. XII, p. 97 (STANBERY) They are defined by section 31 of the act of 1856 as consular of- ficers, subordinate to consuls and commercial agents, exercising the powers and performing the duties within the limits of their consulates or commercial agencies respectively at ports or places different from those at which such principals are located. Whenever congress has intended to include them within any provision of law, it seems to have mentioned them specifically, or employed the general expres- sion "consular officers," which describes subordinate as well as prin- cipal officers in the consular service. Under the 15th section of the act of 1856, the fees of consular agents, or so much thereof as they are allowed to retain by regula- tion of the president, appear to accure to them in their own right, and not in that of the principal officers of the consulates. This provision is not changed or modified in any particular by the law of 1866. The fees they may be entitled to retain under the act of 1856 are not, therefore, to be considered as forming any part of those collected and returned by their principal consular officers. The 15th section of the act of 1856 provides also that "the prin- cipal officer of the consulate or commercial agency within which such consular agent shall be appointed shall be entitled to the residue, if any, in addition to any other compensation allowed him by this act for his services therein." I understand by this, that if a consular agent is (99) not allowed, by the regulation of the president, to re- tain all the fees he may collect, the residue, being the difference be- tween all the fees so collected and the amoimt which the agent is authorized to retain, is payable to his principal. Now, question may be made whether the amount of fees thus received by such principal, if an unsalaried consul or commercial agent, is returnable in the principal's account to the secretary of the treasury, and constitutes part of the fund out of which the maximum of $2,500 is allowed under the act of 1866? I am of opinion that this question must be answered in the affrmative. I think that each unsalaried consul must return, under the act of 1866, all the fees collected by himself, or by any one on his behalf, and also the amount of fees which he may receive through his consular agents. But I do not think that any part of the fees which the agents are authorized to retain, by regulation under the act of 1856, is re- turnable in the accounts of their principals. It will be perceived that no limitation of amount is imposed by the act of 1856 upon the fees retainable by consular agents. The lim- itation of $2,500 is applicable only to the compensation of the prin- cipal consular officers who are mentioned in the 3d section of the statute. 600 OPINIONS OF ATTORNEYS GENERAL The second question on which my opinion is asked is, whether the section referred to is to be considered as limited to unsalaried princi- pal consular officers? There can be no doubt that it is so limited. The consuls and commercial agents not mentioned in schedule B or C are those who receive no salaries, but are compensated by- fees, and the restricting clause applies exclusively also to that class of consuls and commercial agents. Consular agents subordinate to salaried consuls are not affected by the 3d section of the act of 1866 any more than those attached to unsalaried consulates. Both classes of consular agents are still governed, in respect to their compensation, by the provisions of the general law of 1856. I am of opinion, therefore, as follows : (100) 1st. That the 3d section of the act of June 15, 1866, is limited to unsalaried consuls and commercial agents. 2d. That consular agents, whether subordinate to salaried or un- salaried consuls, are entitled to the compensation previously allowed them under the 15th section of the act of August 18, 1856. 3d. That the fees which consular agents, subordinate to un- salaried consuls, may be allowed to retain for their own compensation, under the act of 1856, are not returnable in the accounts of the con- suls under the act of 1866; and, 4th. That the amounts of fees collected by such consular agents, which are payable to, and received by their principals, under the act of 1856, and regulations pursuant thereto, are returnable in the ac- counts of the principals. I am, sir, very respectfully, Your obedient servant, HENRY STANBERY. Hon. Wm. H. Seward, Secretary of State. Vol. XII, p. 124 (Stanbery) CITIZENSHIP OF CONSULAE OFFICEKS The act of February 28, 1867, forbidding the payment of compensation to any consul or commercial agent of the United States -who is not a citizen of the United States, does not apply to deputy consuls, consular agents, vice consuls, and vice commercial agents. Attorney General's Office, March 6, 1867. Sir: I have the honor to say, in reply to the inquiry made in your letter of the 28th ultimo, that I am of opinion that the words 601 Vol. XII, p. 124 (STANBERY) "consul or commercial agent," in the provision of the act of Febru- ary' 28, 1867, which forbids the payment of compensation to any "con- sul or commercial agent who is not a citizen of the United States, native or naturalized." are not to be construed as including subordi- nate or substituted consular officers, such as "deputy consuls," "con- sular agents," "vice consiils, " and "vice commercial agents." It would have been very easy for congress to have declared its intention to embrace such consular officers within the prohibition of the act if it had meant to include them, and the omission to do so must be taken as strong evidence of an intention to exclude them. I am, sir, very respectfully. Your obedient servant, HENRY STANBERY. Hon. Wm. H. Seward, Secretary of State. Vol. XII, p. 463 (Evarts) CASE OF DESERTERS FROM PRUSSIAN FRIGATE "NIOBE" The provisions of the treaty of May 1, 1828, between the United States and Prussia, for the arrest and imprisonment of deserters from public ships and merchant vessels of the respective countries, applies to public vessels sailing under the flag of the North German Union and deserters from such vessels. Attorney General's Office, August 19, 1868. (465) (Extract) In regard to naval vessels of the North German Union, I am clearly of opinion that they are the ships of war of Prussia, ■wnthin the meaning of the treaty of 1828, and that deserters therefrom may be arrested by the proper local authorities of the United States, on the application of the proper consular officer of the Union, pur.suant to that treaty. I have referred incidentally to those provisions of the constitution of the Union, which declare as follows : I am, sir, very respectfully, Your obedient servant, WM. M. EVARTS. Hon. Wm. 77. Seward, Secretary of State. Vol. XIV, p. 520 (Williams) PROPERTY OF DESERTING SEAMEN Four seamen deserted from an American merchant-vessel in a foreign port, leaving in the hands of the master, besides what was due them as wages, some clothing and other effects, all of which the master delivered to the United States 602 OPINIONS OF ATTORNEYS GENERAL consul at the port on the demand of the latter. By instructions from the state department, the consul sold the clothing, &c., and forwarded the proceeda thereof, with the amount due the seamen as wages, to that department. No proceedingi have been instituted against the seamen for the offense of desertion. Upon the question as to what disposition should be made by the department of the money: Advised that the funds, together with a statement of such facts touching the case as may be in the possession of the department, be transmitted to the circuit judge for the district wherein the port is in which the vessel is owned or at which her voyage terminated. A consul has no authority to demand and received from the master of a ves- sel the money and effects belonging to a deserter from the vessel. The steps which should be taken by the master, with reference to the disposi- tion of such property, indicated. Department of Justice, January 28, 1875. Sir : From your communication of the 20th instant, I gather the following facts, which seem to be material to a consideration of the questions submitted by you: In the month of September, 1874, four seamen deserted from the bark Bolivia at the port of Rotterdam, whither she had arrived after a long voyage. The vessel was American, out of the port of Boston. Each of the deserters left an amount of money due them as wages, and some clothing and other effects, in the hands of the master of the vessel. He delivered the money, clothes, &c., to the United States consul at Rotterdam, at his request. Under instructions from the de- partment of state, the consul sold the clothing and other effects of the deserting seamen, and forwarded the proceeds, together with the money due them as wages, to that department, which now holds the fund. No proceeding has been instituted against the men for the crime of desertion, and there has been no judgment of forfeiture. The questions are : What disposition should be made of this money, and what course should be pursued in similar cases? (521) I have first to observe that the consul acted without war- rant of law in demanding and receiving from the master of the vessel the money and effects of the deserters. It is only in case of the death of a seaman, and under the circumstances indicated in the second di- vision of section 4539, Revised Statutes, that any consular officer is authorized to require the money, wages, &e., of a seaman to be deliv- ered to him. The proper steps for the master of the vessel to have taken on the desertion of the men are pointed out in sections 4597, 4599, and 4604, Revised Statutes. If he was unable to find and arrest them, it was his duty to take charge of and hold their clothes, effects, and wages until his arrival at the port at which his voyage terminated. At that 603 Vol. XIV. p. 520 (WILLIAMS) port, which I suppose was Boston, he should, although no forfeiture was as yet declared, have delivered the balance of the property, after deducting the expenses occasioned by the desertion, to the shipping- commissioner, to be by him paid over to the judge of the circuit court of the United States for the district of Massachusetts; for the prop- erty was held by the master as forfeited, and the law forbids the mas- ter or owner of the vessel to keep it, but directs that it shall be held by the judge of the circuit court for the purposes indicated in sections 4604 and 4610, Revised Statutes. The law does not require that there shall be an actual judgment of forfeiture before it becomes the duty of the master to pay over to the shipping-commissioner. If it were so. there would seldom be a case of forfeiture, and the fund for dis- abled seamen would not be benefited largely from this source. Undoubtedly, upon being put in possession of the facts, the circuit judge would, in a case like the present, direct the district attorney to proceed according to law to obtain a judgment. But if the deserters should not appear, and cannot be found in due time so that service can be had upon them, I think the law requires that the money and the proceeds of the effects left by them with masters of vessels, after deducting expenses, &c.. should go into the treasury, to be added to the fund for the relief of sick, disabled, and destitute seamen . (Sec- tions 4545, 4604. and 4610, Rev. Stat.) In the present case I would advise that the fund should be trans- mitted, together with such facts and evidences touching (522) the case as may be in the possession of the department of state, to the cir- cuit judge for the district in which the port is where the bark Bolivia was owned, or at which her voyage terminated ; and this, because such would have been the destination of the fimd if the course pointed out by the law had been pursued, and for the further reason that the deserting men may yet appear and, peradverture, show that their desertion was excusable, as in the case indicated in section 4600, Re- vised Statutes, or prove such a state of facts as would induce the judge to reduce the penalty. I am, very respectfully, your obedient servant, GEO. H. WILLIAMS. Tlon. Hamilton Fish, {Secretary of State. Vol. XV, p. 178 (Taft) MERCHANT VESSELS— JUBISDICTION A merchant vessel, except under some treaty stipulation otherwise providing, has no exemption from the territorial jurisdiction of the harbor in which the same is lying. 604 OPINIONS OF ATTORNEYS GENERAL The right "to sit as judges and arbitrators in such differences as may arise between the captains and crews," given to consuls, vice-consuls, &c., by article 13 of the treaty with Sweden and Norway of 1827, is limited to the determination or arbitrament of disputes and controversies of a civil nature, and does not ex- tend to the cognizance of offenses. If the conduct of the captains or of the crews, where differences arise be- tween them, is such as to " disturb the order or tranquillity of the country, ' ' (which includes all acts, as against each other, amounting to actual breaches of the public peace,) the right of the local authorities to interfere, in the exercise of their police and jurisdictional functions, is reserved in said article. Semble that a more enlarged jurisdiction is conferred upon consuls in some other treaties, as e. g., in the treaty with France of February 23, 1853, in the treaty with the German Empire of December 11, 1871, and in the treaty with Italy of February 8, 1868. Department of Justice, December 14, 1876. Sir: I have the honor to state that since the receipt of the com- munication addressed to me by the Hon. J. L. Cadwalader, acting sec- retary, under date of the 14th of October last, in regard to the pro- ceedings had before a justice of the peace in Galveston, Tex., against a part of the crew of the Swedish bark Frederica and Carolina, a merchant vessel, I have received a further report from the United States attorney for the eastern district of Texas, to whom a copy of that communication was sent. This report, together with the state- ment of the United States district judge therein referred to, I enclose herewith, and beg that they be returned to this department when no longer needed by you. The communication of the acting secretary contains a request for an expression of opinion touching the jurisdiction of the justice in the proceedings mentioned. I have considered the subject in the light of the information furnished by your department and by the United States attorney, and will now proceed to give my views thereon. The facts appear to be these : While the above-named vessel was lying in Galveston harbor, a quarrel arose on board (179) thereof between the two mates and the cook, which resulted in the beating of the latter by the former. The cook made complaint to the justice of the peace above referred to, charging the mates with assault and bat- tery. The accused were brought before the justice, a trial was had, they were convicted, and were each fined $5. The general rule of law is that, except under some treaty stipula- tion otherwise providing, a merchant vessel has no exemption from the territorial jurisdiction of the harbor or port in which the same is lying; and it is assumed that the justice had cognizance of the com- plaint in this case, and that the proceedings before him are not open to objection, unless the jurisdiction of the local authorities was takeii 605 Vol. XV, p. 178 (TAFT) away by the following provision in article 13 of the treaty with Sweden and Norway of 1827, viz: "The consuls, vice-consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise be- tween the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interfer- ence of the local authorities, unless the conduct of the crews or of the captains should disturb the order or tranquillity of the country, or the said consuls, vice-consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported." The only right which, by the terms of the above provision, is granted to consuls, vice-consuls, &c., is the right "to sit as judges and arbitrators in such differences as may arise between the captains and crews;" and the recipients of the right may, in order "to cause their decision to be carried into effect or supported," demand the avS- sistance of the local authorities. This right would seem to be limited to the determination or arbitrament of disputes and controversies of a civil nature, and not to extend to the cognizance of offenses. And such, indeed, appears to have been the understanding of congress, as is shoM-n by the act of August 8, 1846, chap. 105, which was designed for the more effectual enforcement of the provision. That act, after setting out the provision in a preamble, proceeds to confer upon the district and circuit courts of (180) the United States, and United States commissioners, authority to issue, upon the application of the consul, all proper remedial process, mesne and final, to carry into full effect the "award, arbitration, or decree" of such consul, and to enforce obedience thereto by imprisonment, &c. The language of the act is plainly inapplicable to any judgment or sentence pronounced by the consul against one of the officers or crew of a vessel for an offense ; indicating that congress did not regard the provision in the treaty as imparting to him any criminal jurisdiction whatever. On the other hand, if the conduct of the captains or of the crew, where differences arise between them, is such as to "disturb the order or tranquillity of the country," the right of the local authorities to interfere, in the exercise of their police and jurisdictional functions, is distinctly reserved by the above-mentioned provisions. This reser- vation, taken strictly, includes all acts on the part of the captains and crews, as against each other, amounting to actual breaches of the public peace ; and in this sense it may, perhaps, cover the case under consideration. In the jurisprudence of some countries, especially of France, the 606 OPINIONS OF ATTORNEYS GENERAL general rule of law already adverted to is so far relaxed in practice as that all acts relating to the interior discipline of the vessel, and even all offenses committed on board by one of the crew against an- other which do not affect the tranquillity of the port, are excluded from the local jurisdiction — all such matters being left to the cogni- zance and disposal of the consul, and the local authorities being au- thorized to interfere only when their aid or protection is formally re- quired by him. And by some jurists this doctrine is laid down as a rule of international law, which operates in default of treaty stipula- tions. But though that view does not generally prevail, and the prac- tice about to be stated proceeds on a contrary view, the same doctrine has, to a greater or less degree, been formally introduced into nearly all modem commercial treaties between nations engaged in maritime commerce. See, for example, the eighth article of our treaty with France of February 23, 1853; the thirteenth article of our treaty with the German Empire of December 11, 1871; and the eleventh article of our treaty with Italy of February 8, 1868. The (181) fea- ture common to these articles is, that besides the cognizance of dif- ferences that may arise between the officers and crew the consul is to have "charge of the internal order" of the vessel, to the exclu- sion of the local authorities. And by the act of June 11, 1864, chap. 116, providing for their execution, they are described as extending to "controversies, difficulties, or disorders," &c. ; and authority is given to any judge of a United States court and to any United States commissioner, upon application of the consul as there provided, to cause the person complained of to be brought before such judge or commissioner for examination, and if he shall find "a sufficient prima facie case that the matter concerns only the internal order and dis- cipline of such foreign ship or vessel, or, whether in its nature civil or criminal, does not affect directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States," he is required to commit the accused, &c. Thus the doctrine above referred to would seem to prevade the last-mentioned treaties, and to be recognized by congress, so far at least as it respects acts and offenses that affect the internal order and discipline of the vessel, and which do not disturb the peace of the port. If the provision in the treaty with Sweden and Norway, quoted above, be interpreted as in effect conferring the same powers upon the consul as are imparted by the other treaties cited, the jurisdiction of the justice in the present case would seem to depend upon whether the offense complained of was of a nature to affect only the interior discipline of the vessel and whether it did or did not disturb the pub- lic peace. Here, however, the information furnished is so meager as 607 Vol. XV, p. 178 (TAFT) to lead to nothing definite or satisfactory' on that point. In the ab- sence of evidence to the cont^a^}^ it is fair to presume that the jus- tice has not exceeded his jurisdiction. I will observe, in conclusion, that in my opinion the view of the United States district judge for the eastern district of Texas, as stated in his accompanying letter, touching his jurisdiction in the habeas corpus case mentioned by himi, is erroneous. By virtue of section 753 of the Revised Statutes, the writ extends to any one who is in custody in violation of a treaty of the United States; and if, at he hearing, it should (182) appear that the party is imprisoned in viola- tion of a treaty, he may and ought to be discharged. The case to which the district judge refers involved the question whether the commitment violated a treaty ; a question over which he undoubtedly had jurisdiction under the above named section. Very respectfully, your obedient servant, ALPHONZO TAFT. Hon. Eamilton Fish, Secretary of State. Vol. XVI, p. 268 (Devens) DISCHARGE OF SEAMEN IN FOREIGN PORT The action of a consul, in the exercise of the discretion given him by sec- tions 4580, 4581, 4583, and 4584, respecting the discharge of seamen in a for- eign port, is not reviewable otherwise than hj some competent court. Where a consul has collected extra wages of the master of a vessel in a for- eign port, or requested the collection of such extra wages on the arrival of the ves- sel in the United States, it is not competent to the secretary of the treasury or any bureau of the treasury department, in the examination of the accounts of the consul, to do anything more than revise the amount of the collection and determine its arithmetical accuracy. Department of Justice, February 20, 1879. Sir: Yours of the 2d ultimo calls my attention to sections 4580, 4581. 4583. and 4584 of the Revised Statutes, relating (269) to the collection from the master of a vessel of extra wages on account of a seaman discharged by the order of the American consul in a foreign port, and requests an expression of my opinion upon the following questions, viz: 1. ""When, in the exercise of the discretion vested in him by the sections of the statutes referred to, a consular officer shall have de- cided that a discharge of seamen should be granted, is that decision to be regarded as final and conclusive, and subject to no revision other than by a court of competent jurisdiction? 608 OPINIONS OF ATTORNEYS GENERAL 2. "When a consular officer shall have collected extra wages of the master of a vessel in a foreign port, or shall have requested col- lection of such extra wages on the arrival of a vessel in the United States, is it competent for the secretary of the treasury, or any bureau of the treasury department, in the examination of the accounts of said officer, to do anything more than revise the amount of said collec- tion?" An examination of these sections, and reference to section 1736, making the consul civilly and criminally liable for any abuse of power, leads me to conclude that his action is not reviewable other- wise than in some competent court, and that the treasury department has only to examine the account to determine its arithmetical ac- curacy, and not to treat the question of the original propriety of the discharge as though it were de novo, before that department upon ap- peal. I therefore answer your first question affirmatively, and the sec- ond in the negative. Very respectfully, your obedient servant, CHAS. DEVENS. Hon. John Sherman, Secretary of the Treasury. Vol. XIX, p. 16 (Garland) FOEEIGN CONSUL A foreign consul, resident in the United States, must look for protection in his person and property to the laws of the state in which he resides. Department of Justice, May 5, 1887. Sir: In reply to your communication of the 21st of April, 1887, calling my attention to certain complaints of the imperial German consul at Cincinnati, Ohio, I beg to say that as the case does not come within section 4062, Revised Statutes of the United States, the consul must look for protection to the laws that protect the rights of the community in which he resides. The laws that protect the President of the United States in his person and property are the same as those that protect the humblest citizen, and if the personal or property rights of that high functionary should ever be violated in the city of Cincinnati he would have to look for protection to the laws of the state of Ohio. Certainly a foreign consul cannot justly complain that he is not better protected than the highest officer of the government of the United States. 609 Vol. XIX, p. 16 (GARLAND) It results, then, that the case presented is not one in which I can give Assistant United States Attorney Bruce any instructions. Very respectfully, yours, A. H. GARLAND. The Secretary of State. Vol. XIX, p. 22 (Garland) CLAIM OF S. B. PETEESON The crew of an American vessel, wrecked on the South Pacific Ocean, were supplied Mvith necessary clothing by a United States consul, who, on learning that wages were due them, applied to the master of the vessel to pay for the clothing out of the wages due, which the latter did. On their arrival in the United States the crew brought suit against the owners of the wrecked vessel for their wages, and recovered a ,iudgment therefor: Advised, that such owners have no valid claim against the United States for the money paid by the master, as above; that their remedy, if any they have, is against the consul and the sureties on his bond. Department of Justice, May 14, 1887. Sir: Your communication of the 21st of April, 1887, requesting an opinion on the claim of S. B. Peterson, Esq., asking to have re- funded to him by the United States the sum of $218.99, being the amount, including costs, decreed against the owners of the wrecked brig Levi Stevens by the United States district court for the dis- trict of California in a suit for wages brought against said owners by the crew of the said vessel, the groimd of the claim being that nearly the whole of the amount of the wages recovered had, at the time of suit brought, been already paid by the master of the said vessel to the United States consul at Apia, and by him applied to what he claimed to be due for clothing furnished the crew of the wrecked ves.sel. The Levi Stevens was wrecked in the South Pacific Ocean in No- vember, 1885, on the Suwarrow Reef. The crew succeeded in landing on the island of Suwarrow, where they remained until the following March, when they took shipping for Apia, in the island of Samoa, where they arrived in the following month of April. The United States consul at Apia, Mr. Greenbaum, attended to their wants, supplying them with the necessary clothing, amongst other things, and upon learning that wages were due them he applied to the master to pay for the clothing furnished out of the wages due. This the master did as to all of the crew except one, but without their a.ssent, he borrowing the necessary money on the credit of the owners of the wrecked vessel. 610 OPINIONS OF ATTORNEYS GENERAL It is found as a fact in the said case by the district court (23) that the consul, when asked by the crew who was to pay for the clothing furnished, replied, "the United States;" and also that the consul, at the time he furnished the clothing, had no information that wages were due the crew. It was urged by the owners of the wrecked vessel, in defense to the case made by the libellants, that the payment by the master in obedience to the consul's direction or demand was, to that extent, a lawful discharge of the amount claimed in the libel. But the district court did not consider the defense of payment a valid one, and, proceeding on the ground that the case fell within section 4577, Revised Statutes, held that the crew were "destitute" in the sense of said section, and so entitled to have their necessities supplied and to be sent home at the expense of the United States, and decreed accordingly for the several amounts claimed. It is upon this state of facts, presented considerably more in de- tail, that Mr. Peterson 's claim rests. In my opinion he has no valid demand against the United States for the money paid by the master of the unfortunate vessel to consul Greenbaum. Section 1697, Revised Statutes, provides that every consul shall, before receiving his commission, give a bond with such sureties as the secretary of state shall approve "for the true and faithful accounting for, paying over, and delivering up of all fees, moneys, goods, effects, books, records, papers, and other property which shall come to his hands, or to the hands of any other person to his use as . . . consul , . . under any law now or hereafter enacted ; and for the true and faith- ful performance of all other duties now or hereafter lawfully imposed upon him as . . . consul ..." And the bond so required * ' shall be de- posited with the treasury. ' ' Section 1735, Revised Statutes, provides as follows: "When- ever any consular officer willfully neglects or omits to perform season- ably any duty imposed upon him by law, or by any order or instruc- tion made or given in pursuance of law, or is guilty of any willful malfeasance or abuse of power, or of any corrupt conduct in his of- fice, he shall be liable to all persons injured by any such neglect or omission, malfeasance, abuse, (24) or corrupt conduct, for all damages occasioned thereby ; and for all such damages he and his sureties upon his official bond shall be responsible thereon to the full amoimt of the penalty thereof, to be sued in the name of the United States for the iise of the person injured. Such suit, however, shall in no case preju- dice, but shall be held in entire subordination to the interests, claims, and demands of the United States, as against any officer under such 611 Vol. XIX, p. 22 (GARLAND) bond, for every willful act of malfeasance or corrupt conduct in his office." Section 1736. Revised Statutes, provides as follows: "If any consul or commercial agent neglects or omits to perform seasonably the duties imposed upon him by the laws regulating the shipment and discharge of seamen and the reclamation of deserters on board or from vessels in foreign ports, or is guilty of any malversation or abuse of power, he shall be liable to any injured person for all damage occa- sioned thereby ; and for all malversation and corrupt conduct in of- fice he shall be punishable by imprisonment for not more than one year and by a fine of not more than ten thousand dollars and not less than one thousand." It thus appears that congress has addressed itself with some care to the subject of providing security against the unfaithfulness of per- sons holding consular offices, and we are not at liberty to say that the provision thus made is not entirely adequate. It can not be doubted that this legislation was the result of the well-settled principle that the United States is not liable to its citizens for the consequences of the wrongs or shortcomings of its officers. "No government," says Mr. Justice Miller in Oihhons v. United States (8 Wall., 269, 274), "has ever held itself liable to individuals for the malfeasance, laches, or unauthorized exercise of power by its officers and agents." The same doctrine has been often laid down by the same court {Minium v. United States, 106 U. S., 437; United States V. Kirkpatrick, 9 Wh., 720; United States v. Van Zandt, 11 Ih., 184; Dox V. Postmaster-General, 1 Pet., 318). It is thus very clear that if the claimant, Peterson, has any rem- edy it is against the consul and the sureties on his bond, and not by any possibility against the United States. This would seem to dispose of the case. (25) It might be considered as hardly proper if I were to go further and indicate an opinion on the abstract question as to the meaning of the word "destitute" as used in section 4577, Revised ^Statutes, in view of the conflict in that particular between the de- partment of .state and the United States district court for the district of California. The question is a judicial one, and should be settled, it would seem, by the courts, At the same time, if it were before me as a practical question, I should dispose of it as any other ques- tion. Very respectfully, A. H. GARLAND. The Secretary of State. 612 OPINIONS OF ATTORNEYS GENERAL Vol. XIX, p. 196 (Garland) OFFICIAL CONSULAR SERVICES Under the laws and usages governing the American consular service, the au- thentication, noting etc., of marine protests are to be regarded as official consular services. Department of Justice, November 22, 1888. Sir: By your letter of the 25tli of October, 1888, you inquire, as I understand your communication, whether "the natural and essen- tial character of the consular services of authenticating, noting, etc., marine protests, apart from the factitious status given them by in- clusion in the tariff of official fees," are or are not official consular services ? The office of consul is of very ancient origin. In its early history its incumbent was a municipal officer, intrusted with the power and charged with the general duty of the enforcement of the laws of the sovereignty which he represented over its citizens resident in a spe- cial locality or municipality, out- (197) side of the general territorial jurisdiction of the sovereign. "Within the governments of Christen- dom, the exterritorial jurisdiction of a foreign sovereignty over its citizens has generally ceased to exist, and the local law governs the residents as well as the citizens of a nation. But outside of the pale of Christendom, in some instances the exterritorial jurisdiction of the sovereignty still exists, and the corresponding powers and duties of the consul still survive. Under international law there have been and are, therefore, different official duties incident to the office of con- sul, varying with time, place, and circumstances. No invariable test can be derived from international law, or from the general character of the consular office, by which to determine what services performed by the consul are official consular services, and what are not. The American consul has no authority except what may be expressly granted by a law of congress, and acknowledged by the government in whose jurisdiction he resides. His duties are described in different acts of congress, and in the consular instructions of the department of state. (Warden's Consular Establishment, page 140.) "In process of time, by traditional usage, by positive provisions of local law, and by treaty stipulations, the existing legal character with its limited rights was fixed on the foreign consuls mutually ac- credited in the countries of Christian Europe and America." (7 Opin., 348.) "Whether the taldng of marine protests is an official consular ser- 613 Vol. XIX, p. 196 (GARLAND) \'ice. or a non-consular service, must be determined by tradition, usage, treaties, and laws. The second section of the act of the 14th of April. 1792 (1 Stat., 255), provides: "And for the direction of the consuls and vice-consuls of the United States in certain cases. "Sec. 2. Be it enacted hy the authority aforesaid. That they shall have the right, in the ports or places to which they are or may be severally appointed, of receiving the protests or declarations which such captains, masters, crews, passengers, and merchants, as are citi- zens of the United States, may respectively choose to make there." By the twentj'^-second section of the act of the 1st of March, 1855 (10 Stat., 626,) it is provided: "That the following record books shall be provided for and (198) kept in each consulate and commercial agency, ...a book for the entry of protests, and in which all other official consular acts like- wise shall be recorded." In an opinion rendered on the 2d of June, 1855 (7 Opin., 259), Attorney-General Gushing, in classifying and distinguishing between consular and non-consular services, applying the act last referred to, concludes : "(4) Drawing out a power of attorney, bottomry bond, will, or any such similar service, is a notarial, not a consular act; and therefore only the certificate upon it would go to the account of the government. " (5) I should have said the same of extending a protest, but for the phrase in another part of the act, 'a book for the entry of pro- tests, and in which all other official consular acts likewise shall be re- corded,' which seems to cover the fact of extending a protest, and so to give the fee to the government." In determining what are the usage and law on this subject sec- tion 1745 of the Revised Statutes can not well be omitted. It pro- vides: "The president is authorized to prescribe from time to time the rates or tariffs of fees to be charged for official services, and to designate what shall be regarded as official services besides such as are expressly declared by law in the business of the several lega- tions, consulates, and commercial agencies." This section authorizes the president to prescribe a tariflF of fees for official services only, and does not authorize him to fix the rate for non-offioial. It also empowers him to designate or name what shall be regarded as official services beside such as are expressly declared by law. When thus empowered, if he shall name or designate in the tariff of fees as official that which before had not been so regarded, from the time of such naming or designation the services thus desig- 614 OPINIONS OF ATTORNEYS GENERAL nated should be regarded as official. Your communication shows that the president has prescribed a rate of fees under the section, and that he has therein named such marine protests as are referred to in yours. I therefore conclude from the usage, as shown from the laws of the past (some of which have been repealed) and those of the present, (199) that the "authenticating, noting," etc., of "marine protests," concerning which you enquire, are official consular services. Very respectfully, A. H. GARLAND. The Secretary of State. Vol. XIX, p. 225 (Garland) CONSULAE FEES A certified consular invoice is required by law for the admission to entry of imported merchandise not subject to duty, excepting where congress has ex- pressly dispensed with that requirement. The new addition of the consular regulations of 1888 contains provisions mak- ing the fee for a consular certificate to an invoice of merchandise not subject to duty official and returnable to the treasury. The fee for such certificate may be rendered official by executive order, and specially included in the tariff of official fees under the Kevised Statutes. Department of Justice, January 22, 1889. Sir: Yours of the 21st ultimo and of the 3d instant, with in- closure, have been received, and in them you request an official opin- ion upon three propositions touching the subject of consular fees, which have arisen by reason of a recent decision of the United States court of claims in the claim of John S. Mosby, the former consul at Hong-Kong, China. Attorney-General Gushing had occasion, in 1855, to WTite an ex- cellent opinion upon this and other subjects relating to the consular service, in which he construed the act of March (226) 1, 1855, (10 Stat., 623; 7 Opin., 243). This act was, however, wholly repealed by the act of August 18, 1856. (11 Stat., 65.) The important and material sections of the latter act were trans- ferred to and are now embraced in the several chapters of Title XVIII of the Revised Statutes. The questions presented for consideration bear directly upon the commercial relations of the United States with foreign governments or their subjects, and the provisions of law above referred to must necessarily, therefore, be considered in connection with the laws reg- ulating the importation of goods, whether free or dutiable, into the United States. 615 Yol. XIX, p. 225 (GARLAND) "With this preliminary and casual reference to the law by which your propositions will be governed, I shall now answer your queS' tions in their order. ' ' The court hold that the certificate to an invoice of merchandise not subject to duty is a non-official paper; that the consular regula- tions of 1874 and 1881 contain no provisions making the consular charge for such a certificate an official fee ; but they intimate that the president may, in his discretion, prescribe fees for non-official acts, and thereby render such fees official. This leads to the inquiry whether the new edition of the consular regulations, formulated by the president in February, 1888, to go into effect April 1, 1888, contain any provision by virtue of which the fee for a consular certificate to an invoice of merchandise not subject to duty is made official and returnable to the treasury. The paragraphs touching official fees and invoices are 491-508, and 636-682." Merchandise shipped to the United States in transit to a foreign country, as indicated by manifests, bills of lading, or other documents, are not importations into the United States under the law, and con- sular invoices are not required. Strictly speaking, therefore, importations under the statutes con- sist of goods that are dutiable and goods that are admitted free. There is no controversy as to the requirements of an invoice and the character of the consular fee in regard to dutiable importations. It will be observed that the law upon the subject of consular invoices is found in the statutes regulating the customs duties. The answer, therefore, to the material part of the above (227) question depends upon the construction or application of the pro- visions of section 1 of the act of March 3, 1863 (12 Stat., 737) and of section 1 of the act of June 22, 1874, (18 Stat., pt. 3, p. 187.) The provisions of section 1 of the act of March 3, 1863, have been re- enacted in sections 2853, 2855, and 2860, of the Revised Statutes; but no part of the act of Jime 22, 1874, has been embraced in the Revised Statutes. It may be foimd, however, in volume 1 of the supplement to the Revised Statutes, page 79. These statutes are now in full force, and in effect they are pro- hibitory. No distinction is made in them between dutiable and free goods. "Whether the goods belong to the one or the other class, they are alike importations. Nor are free importations included in the exceptions under which merchandise may be admitted to entry with- out the invoices required by these statutes, although some exceptions are expressly made. The law-makers have not included free goods within the exceptions, and they can not be admitted to entry without the consular invoice required, unless the strict and familiar rule of 616 OPINIONS OF ATTORNEYS GENERAL construction of statutes is relaxed for the purpose. This can not be done. The first section of the act of March 3, 1863, expressly prohibits the admission to entry of goods unless the consular invoice accom- panies them. Section 9 of the act of June 22, 1874, provides, "that except in the case of personal effects accompanying the passenger, no importation exceeding one hundred dollars, in dutiable value, shall be admitted to entry without the production of a duly certified invoice thereof as required by law. " The state and treasury departments, which have cognizance of these matters, have, according to the information transmitted by you, construed the above statutes to mean that "the fact that imported goods are entitled to free entry does not excuse the production of a certified invoice." And in 1872 the question arose, and the secretary of the treasury on the 8th of November in that year so decided, and notified the collector of customs at San Francisco, Cal., by letter of such decision. "The construction given to a statute by those charged with the duty of executing it is always entitled to the most (228) respectful consideration, and ought not to be overruled without cogent reasons (Edwards vs. Darhy, 12 Wheat. 210; United States vs. The State Bank of North Carolina, 6 Pet., 29 ; United States vs. McDaniel, 7 ih., 1). The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draughtsmen of the laws they are afterwards called upon to interpret." {United States vs. Moor, 95 U.S. R., 763.) And the above rule of contemporaneous construction of statutes, by those charged with their execution, applies in all cases of am- biguity and doubt. {Swift Co. vs. United States, 105 U. S. R., 695, and the cases therein cited ; United States vs. Philhrick, 120 U. S. R. 52; United States vs. Hill, ih., 169.) It is not necessary to discuss the reasons why certified consular invoices should or should not be required for free importations, in- asmuch as the conclusion has been reached, as will be perceived from the above remarks, that such invoices are required by law. The president may, therefore, in his discretion, prescribe the fee for a consular certificate to an invoice of merchandise not subject to duty as official and require it to be returned to the treasury. And even if those certified invoices were not required by law, the presi- dent is authorized in his discretion, under section 1745 of the Re- vised Statutes, to designate the service of the consul in certifying such invoices as official, and also to declare the fee prescribed therefor to be official, and require it to be accounted for to the treasury. 617 Vol. XIX, p. 225 (GARLAND) Upon my first examination of the paragraphs of the consular regulations of 18S8, referred to in your communication, I was under the impression that item 36 of paragraph 508 included a special ref- erence to the section of the Revised Statutes in which invoices for dutiable goods are required and the fee prescribed. But, upon further investigation and reflection, I find this impression to be erron- eous. Item 36 of paragraph 508 is broad enough in its provisions to include the fee for a consular certificate to an invoice of merchandise not subject to duty, and to make such fee official and returnable to the treasury. In answer to your second inquiry, I beg to say, that I see (229) no reason why the fee for certifying an invoice may not be rendered oflRcial by executive order and specialty included in the tariff of fees in accordance with section 1745 of the Revised Statutes. The answers to your first and second inquiries render it unneces- sary for me to express an opinion upon the third proposition sub- mitted. I am of the opinion therefore — (a) That a certified consular invoice is required by law for the admission to entry into the United States of goods and merchandise not subject to duty, except in the instance in which congress has ex- pressly dispensed with the requirement of the same. (b) That the new edition of the consular regulations of 1888 con- tains provisions which make the fee for consular certificate to an in- voice of merchandise not subject to duty official and returnable to the treasury. I am also of the opinion that the fee for certificates to consular invoices may be rendered official by executive order, and specially in- cluded in the tariff of official fees under the Revised Statutes. Very respectfully, A. H. GARLAND. The Secretary of State. Vol. XX, p. 26 (Taft) SEALED CARS Department of Justice, February 13, 1891. (31) Extract) 3. Tbe third question is whether or not the law referred to, or any other, requires that officers of the United States shall be stationed on contiguous foreign territory for the purpose of sealing cars into which may be placed merchandise 618 OPINIONS OF ATTORNEYS GENERAL destined for ports within our territory. Section 2 of the act of 1864 evidently contemplates the presence in the contigu- (32) ous country of some officers authorized to seal cars. By the third section the sec- retary is required to make regulations for the sealing of cars by such officers. The sealing of a car is not very different from other duties of a commercial character which have been imposed upon consular officers of the United States from the foundation of the government. It is reasonable, therefore, to suppose that congress intended that the duty here referred to should be performed by consular officers. Such has been the construction of the act since its passage. There is there- fore an implied obligation upon the secretary to authorize such officers to seal cars and vessels under the act in question. There is no pro- visions of law, however, requiring the secretary of the treasury to appoint inspectors for the sole purpose of sealing cars and vessels in the contiguous countries, and there is no appropriation out of which such inspectors could be paid. The seventh section of the smuggling act empowers the secretary to appoint additional inspectors in certain revenue districts of the United States, but nothing is said of inspectors stationed in foreign countries. Section 2999 authorizes the appoint- ment of special agents of the treasury to reside in foreign countries through which bonded goods are carried from the warehouse of one collection district of the United States on the Atlantic coast to that of another on the Pacific coast, and vice versa, for the purpose of supervising the transportation of such goods through the foreign country and preventing fraud upon the government. This section was enacted in 1854, and was evidently directed to the carriage of goods over the Isthmus of Panama, It cannot in any view apply to the case in hand. Section 2 was an exception to the operation of section 1 of the smuggling act of 18.64. It was doubtless supposed by congress that the bulk of importations would be made under section 1 of the act, and that the exceptional cases under section 2 could be properly at- tended to by the consular officers, and the government thereby pro- tected from fraud. If it now turns out that the importations in the manner provided in section 2 are so great that consular officers are not fitted, or have not the opportunity by reason of their other duties, to so examine the goods and seal the cars as to prevent fraud, the secretary of the treasury has no authority by (33) law, and therefore is not required, to appoint new officers especially charged with the diity. This result may be a reason for congressional action granting such authority, but until it is granted consular officers must continue to do the sealing. The only way now open to the secretary of preventing the evils 619 Vol. XX, p. 26 (TAFT) which have proved necessarily incident to the system of sealing cars in accordance with section 2 of the act of 1864, under the present regulations, is to modify the regulations, by directing that an examin- ation of some kind be had upon the frontier. Very respectfully, WM. H. TAFT, Solicit or-Oeneral. The Acting Secretary of the Treasury, Approved : WM. H. H. MILLER. Vol. XX, p. 92 (Miller) PERSONS IN CHARGE OF CONSULAR OFFICES A person placed in charge of a consular office by the incumbent of the con- sulate, but without appointment and qualification as prescribed by the constitu- tion and laws of the United States, cannot lawfully perform the regular of- ficial duties of the post, nor should he be permitted to perform those other unof- ficial services, such as notarial services, which a consul is not required by law to perform, but the chief value of which depends entirely on the fact that the person rendering them is a consular officer. Department of Justice, May 7, 1891. Sir: Your communication of January 15, ultimo, earlier atten- tion to which has been unavoidably delayed, requests an opinion upon the question whether a person placed in charge of a consular office by the incumbent of the consulate to which the office belongs, but "without appointment and qualification as prescribed by the con- stitution and laws of the United States" can perform (1) the regular official duties of the post, and (2) notarial and other unofficial ser- vices." I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person cannot possibly have any virtue in him as a public officer. This disposes of the first branch of your question. The second branch refers to that class of functions which are performed customarily by consuls, but which are entirely unofficial, being neither required to be done by the law nor by executive regu- lations. (United States v. Moshy, 133 U. S., 273.) The value of such services depends entirely on the fact that the person rendering them is a consular officer. It may be that the laws of a state of the United States give validity to certain services of that kind, as. for example, taking (93) acknowledgments abroad of convey- ances of land in such state, or it may be that the efficiency of the act f520 OPINIONS OF ATTORNEYS GENERAL is due to the faith generally reposed in consular officers. Howeves that may be, the United States would seem to be in duty bound to protect the public, as far as it may be reasonably expected to do so, against the exercise of even merely voluntary consular functions by persons not regularly appointed consuls. It, therefore, clearly con- cerns the United States that no person shall be permitted to exercise the office of consul of the United States in any way who has not been authorized by congress to do so. This disposes of the second branch. Very respectfully, yours, W. H. H. MILLER. The Secretary of State. Vol. XX, p. 455 (Miller) NOTARY Department of Justice, August 25, 1892. (458) (Extract) It is clear that the applications to which you refer, and which are illustrated by the communications of Consul- General Goldschmidt and Mr. Jentzsch, viz, those that are (459) signed, or signed and sworn to, in blank, and afterwards filled in, and those which bear merely a certificate of the signing, but no appli- cant's oath or affidavit, furnish no sufficient ground for official action in the patent office. The practices referred to relates to administrative matters within the purview of your department, and are such as may well be called to the attention of congress, but they are not such as now require an official opinion from me. In conclusion, it is my opinion that a notary of Austria-Hun- gary, who is not authorized by the laws of his country to administer oaths or take affidavits, lacks the requisite authority to administer the oath required by section 4892 of the Revised Statutes. Very respectfully, W. H. H. MILLER. The Secretary of the Interior. Vol. XXI, p. 201 (Harmon) CONSUL— ATTORNEY-GENERAL When a consul intervenes in a controversy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul. The attorney-general can not be called upon for an opinion unlesB specific 621 Vol. XXI, p. 201 (HARMON) questions of law are formulated which relate to an existing question calling for the action of the department requesting it. (202) Department of Justice, July 26, 1895. Sir: I have your letter of July 24, 1895, inclosing a statement of the United States consul at Havre that the steam yacht Barraconta, a foreign-built vessel, owned by a citizen of the United States and unregistered, arrived at that port from the Mediterranean, destina- tion, foreign ports, and that he had intervened on account of disputes and differences that had arisen between the master and first officer on the one side and the chief engineer and cook on the other side. You request "an opinion upon the facts presented" in the com- mimication from the consul. You further state : "I should have no hesitation in approving the action of the consul at Havre if the yacht in question were a regis- tered American vessel, but I am unwilling to assume the responsibility of determining the legal status of, a foreign-built yacht." It is not entirely clear to me upon what points you wish an opinion. It is against the settled practice of this department to give an opinion upon a general statement of facts without a specification presenting special questions of law. (14 Opin., 367; 20 Opin., 259, 493, 699, 711, 723.) The attorney-general can not properly give an opinion where it does not appear that some question exists calling for the actions of the department requesting it. (20 Opin., 383, 420, 465, 618.) It appears from the consul's statement that what he did was "by mutual consent of master and seamen." It would seem from this that he had exercised no consular authority, and that he in effect acted as arbitrator by consent of parties, and therefore it is not ap- parent to me that any question arising out of his action is now pend- ing in the administration of your department. If there be no question pending in your department requiring official action necessarily involving a determination of "the legal status of a foreign-built yacht," I would not be warranted in giving to you an opinion upon that subject. If, in the administration of your department, any action is neces- sary in respect of wiiat the consul has done in this case, I request that you will formulate specific questions of law upon which you wish to have my opinion. Very respectfully, JUDSON HARMON. The Secretary of State. 622 OPINIONS OF ATTORNEYS GENERAL Vol. XXII, p. 32 (Richards) DAMAGES— ILLEGAL— IMPKISONMENT Department of Justice, February 7, 1898. (Extract) Sir: On January 4, 1886, a citizen of the United States, Mr. Thomas J. Culliton, the treasurer of the dredging com- pany then doing work on the Isthmus of Panama, was arrested (33) and imprisoned by the acting perfect of Colon without judicial pro- cess and without any allegation of a violation of law, but simply be- cause Mr. Culliton 's conduct was alleged by the prefect to be in dis- respect of his authority. The United States consul at Colon and Ad- miral Jouett, who happened to be in port at that time, intervened, and Cullion was released by the order of the prefect after five hours dention in the common jail. The statement of this outrage contained in the protest filed by Mr. Culliton with our consul at Colon, April 6, 1886, is as follows: • «**«**** * Very respectfully, JOHN K. RICHARDS, Solicitor-General. Approved : JOHN W. GRIGGS. The Secretary of State. Vol. XXII, p. 72 (Griggs) ENTRY AND EETUEN CERTIFICATES OF CHINESE The original entry certificates of Chinese merchants and others exempted must be issued by their government or the government where they last reside. The return certificate of Chinese persons entitled to return to the United States under the contingency contemplated by article II of the treaty of 1894 vnth China must be accompanied by a certificate as to the facts, made by the Chinese consul at the port of departure. Certificates issued to Chinese persons of the exempted class by the Chinese consul at Havana in the absence of certification by a consular ofiicer of the United States should not be accepted by the customs officials of the United States. The return entry of such Chinese is allowed only on strict compliance with the terms of the treaty and the regulations formed thereunder. The terms upon which the representation of the interests of the United States at Havana was committed or intrusted to the British consul during the exist- ing war with Spain were informal and did not specially include the service of viseing certificates to be issued to Chinese persons. Chinese certificates viseed by the British consul at Havana during the absence 623 Vol. XXII, p. 72 (GRIGGS) of the United States consular officers may be accepted by the authorities of the United States, provided this duty is voluntarily performed by such officer with the consent of the British government. Department of Justice, May 6, 1898. Sir: I have the honor to acknowledge the receipt of your com- munioation of May 2, relative to certain correspondence passing be- tween the department of state and the Chinese minister at this capital, copies of which have been transmitted to your department, in the course of which inquirj" was made by the Chinese minister as to whether certain Chinese certificates, viseed by the British consul at Havana during the absence from Havana of the consular officers of the United States, would be accepted by the proper authorities of the United States. You inform me, further, that the collector of customs at New York has requested instructions from you as to the acceptance of certificates issued to Chinese persons of the exempt class by the Chinese consul at Havana but without certification by the consular officer of the United States, and whether in case it shall be decided that such certificates should not be accepted, certificates viseed by the British consul at Havana should be regarded (73) as sufficient evidence to entitle the holders to admission to this countrj', and in view of the above facts and the condition of affairs now exist- ing, you request my opinion as to your authority to direct the accept- ance of certificates viseed by the British consul at Havana, to whom, it is understood, the consul-general of the United States turned over all matters affecting American interests prior to his recent departure from that city. The certificates in question here may be, so far as the statement of the facts discloses, the "original entry certificates" of merchants and the other classes of Chinese subjects referred to in section 6 of the act of May 6, 1882 (as amended by the act of July 5, 1884), and in article III of the convention between the United States and China, proclaimed December 8, 1894; or they may be the "return certifi- cates" of Chinese laborers provided for in article II of said treaty. The question obviously does not refer to the "residence certificates" required of Chinese laborers and allowed to Chinese persons other than laborers by the act of May 5, 1892 (as amended by the act of November 3, 1893), although such residence or registration certifi- cates are the basis under the treasury regulations of the return certi- ficates to which certain Chinese laborers, under the treaty of 1894, are entitled. It appears, further, that Chinese merchants formerly en- gaged in business in this country are not required to take out a re- turn certificate for use upon application for re-entrance, but shall 624 OPINIONS OF ATTORNEYS GENERAL establish their former status as merchants here by the testimony of two creditable witnesses other than Chinese (sec, 2, act of 1893, supra) ; and the original entry of Chinese laborers is now absolutely prohibited by the act of 1882, as amended, the act of 1892, and the treaty of 1894, and their return entry is allowed only upon the strict compliance with the terms of the said treaty and the regulations framed thereunder (21 Op., 424). The certificates referred to in your queries may therefore embrace the original entry certificates of merchants and other exempt classes and the return certificates of laborers under the treaty. Your request does not impose upon me the duty of considering the terms and requirements on which the respective (74) certificates may be granted or accepted by the customs officials under the Chinese exclusion acts, the treaty of 1894, the regulations of the state depart- ment and of your department, and the rulings and decisions upon the subject, except so far as to state generally that the original entry certificates of merchants and others exempt must be issued by their government or the government where they last resided, and the re- turn certificates of the laborers entitled to return must, in the con- tingency contemplated by Article II of the treaty of 1894, be accom- panied by a certificate as to the facts made by the Chinese consul at the port of departure for return to the United States. Moreover, it may be noted, that the laws and regulations require that the customs officials, in making the return certificates based on the registration certificate, shall make a thorough examination of the facts and of the accuracy of the applicant 's statements, and that the diplomatic or con- sular representatives of the United States, before indorsing certificates submitted to them, shall examine into the truth of the statements set forth therein, and if the statements are untrue they shall refuse to in- dorse the certificate. It is quite clear from the language of section 6 of the act of 1882, as amended — which is to be read in connection with articles II and III of the treaty of 1894 — that the respective certi- ficates embraced in this enquiry should be indorsed or viseed by the diplomatic consular representatives of the United States in the foreign country from which the certificate issues, or at the port or place from which the person named therein is about to depart. I am therefore of the opinion that certificates issued to Chinese persons of the exempt classes by the Chinese consul at Havana, but without certification by a consular officer of the United States, should not be accepted by the customs officials. We thus come to the last question in the case, namely, whether certificates viseed by the British consul at Havana, assuming that all the other requirements of the law have been complied with, should be 625 Vol. XXII, p. 72 (GRIGGS) regarded as sufficient evidence to entitle the holders to admission to this country, and this question will be answered by the answer to the (75) question. To what extent is the British consul at Havana a con- sular officer of the United States? By the county existing between friendly nations and under dip- lomatic practice, governments, at the request of friendly powers, often give to their diplomatic and consular officers authority to take upon themselves, with the consent of the government within whose jurisdic- tion they reside, the function of representing such powers at places where the latter have no consular officers. The United States has imderstood this authority to be restricted to the extending of protec- tion to the citizens or subjects of the friendly power and to the grant- ing of the services and good offices of our representatives, with their own consent, to meet what has ordinarily been a fortuitous and tem- porary exigency of the friendly government. (United States Consu- lar Regulations, 1896, p. 60, par. 174; p. 178, par. 453.) However, an indication of the proper course to be pursued in this matter may be obtained from the laws relating to the verification or certification of invoices. The act of March 1, 1823 (3 Stat., 733), section 2844, Revised Statutes, expressly provides that such certifica- tion may be made in the absence of the consul or commercial agent of the United States by the consul of a friendly nation ; or if there is no such consul in the country, by two merchants; and although the customs administrative act of Jime 10, 1890, provides for the authen- tication of invoices by the consul, vice-consul, or commercial agent of the United States of the proper consular district, it is to observe that section 29 of the latter act, repealing various prior provisions of law on the subject, does not repeal section 2844, although it repeals sec- tions 2843 and 2845. "While, therefore, the statutes relating to the granting of certificates to Chinese do not contain provisions similar to those in section 2844, it may be said that those statutes, so far as they authorize the granting of certain consular certificates to Chinese, were pa.ssed for the purpose of executing the treaties between the United States and China, and that it seems desirable, so far as con- sular action in such a matter is necessary, that the acts of the British fonsuls. as the representatives of American interests in the Spanish dominions during the existing war, should, so far (76) as possible, be accepted by our authorities, whether those consuls be considered as acting United States consuls or as British consuls acting for the United States. And the word "consul" is to be understood to mean any person invested by the United States with, and exercising, the functions of consul-general, vice-consul-general, consul or vice-consul. (Sec. 4130, Rev. Stat.) 626 OPINIONS OP ATTORNEYS GENERAL The request of the friendly power implies the granting of suf- ficient authority by it in the premises. But the functions should be accepted by the officer in question and the approval of his government should be signified. In the existing circumstances of the war with Spain the consent of its government would not be obtained, but may be implied in view of ordinary diplomatic practice, or may perhaps, for the purposes of the present inquiry, be ignored. The terms upon which the representation of the interests of the United States at Havana was committed or intrusted to the British consul at that city were informal and did not specifically include such service as is here contemplated. But while it may generally be the case that this friendly representation is confined to the extending of protection and good offices, I perceive no valid reason which forbids the British consul in question — consenting himself, and with the approval of his government — to perform such ordinary and routine duties of the United States consul as the indorsing or viseing of Chinese certifi- cates; always providing that he acts in such case in accordance with the strict requirements of our law and the regulations thereunder. I therefore answer your last inquiry, whether you may properly authorize the acceptance of the Chinese certificates in question under the vise of the British consul at Havana in the affirmative. Very respectfully, JOHN W. GRIGGS. The Secretary of the Treasury. Vol. XXII, p. 212 (Griggs) SEAMEN— DISCHAKGES The master of an American steamship requested the discharge of a seaman, the latter joining in the request. The log book showed that on a certain day the sailor refused to work, alleging sickness, which proved to be intoxication, and the following day he was unable to work from consequent illness. For these reasons the master deducted from his wages four and eight days' pay, respectively. Held, The consul-general was justified in discharging the seaman. The master of the vessel had no legal right to impose and collect the finea indicated, as the entries in the log book did not amount to satisfactory evidence of unlawful refusal or neglect to work when required. If the seaman was discharged because of unusual or cruel treatment, he is entitled to the one month's extra wages allowed by statute, and in such cases the consul-general is authorized to exercise some reasonable discretion in determining this extra allowance, in reference to actual or anticipated ill treatment. Department of Justice, September 20, 1898. Sir: I have the honor to acknowledge the receipt of your com- 627 Vol. XXII, p. 212 (GRIGGS) munication of September 6, inclosing copy of a dispatch from the United States consul-general at Panama, and asking my opinion upon certain questions raised thereon. It appears that on August 15, 1898, Capt. W. H. McLean, master of the American steamship Sayi Jose, came before the consul-general requesting the discharge of John Dowd, a coal passer on said vessel, said Dowd appearing and joining in the request, which was granted. The captain then produced his log book, whereon were certain entries to the effect that on AugUvSt 12 Dowd had refused to work, alleging sickness, which, on examination, proved to be intoxication, and that on the following day he again refused to work, being unable to do so from illness consequent on his condition the preceding day. For these offenses the master deducted from his wages four days' pay and eight days' pay, respectively, amounting in all to the sum of $14. While the discharge was desired by both master and seaman, the con- sul-general states that his principle reason for discharging the latter was the fact that he felt it would be unsafe to send the man back to the vessel o%\'ing to the evident ill will displayed by the master towards the seaman. You ask me, first, whether the consul-general acted correctly in discharging the seaman. (213) Section 4580 of the Revised Statutes, as amended by the act of June 26, 1884 (23 Stats., 53) provides that— "Upon the application of the master of any vessel to a consular ofRcer to discharge a seaman, or upon the application of any seaman for his owTi discharge, if it appears to such officer that said seaman • * * is entitled to his discharge under any act of congress or ac- cording to the general principles or usages of maritime law, as recog- nized in the United States, such officer shall discharge said seaman, and require from the master of said vessel, before such discharge shall be made, payment of the wages which may then be due said seaman." A consular officer may discharge a seaman in case of desertion caused by unusual or cruel treatment (act of June 26, 1884, sec. 6) ; also when the seaman is unusually or cruelly treated without having deserted. (Consular Regulations, par. 211.) When insubordination or bad conduct are alleged, the grounds on which a seaman may be discharged are generally such as to amount to a disqualification and show him to be an unsafe or unfit person to have on board a vessel; and the consular officer must satisfy himself that good and substantial reasons exist for a discharge before granting the application. (Con- sular Regulations, par. 213.) In this case the offenses charged against the seaman would hardly 628 OPINIONS OF ATTORNEYS GENERAL have constituted sufficient grounds for his discharge without his con- sent. A seaman is not to be discharged for slight or venial offenses, nor for a single offense unless of a very aggravated character (The Superior, 22 Fed. Rep., 927; Cons. Reg. par. 213). If the seaman is charged with insubordination, it should satisfactorily appear that he is incorrigibly disobedient, and that he persists in such conduct (The T, F. Oakes, 36 Fed. Rep., 442). Here, however, the discharge was requested by the seaman as well as the master, and it was therefore proper to grant it if "according to the general principles or usages of maritime law as recognized in the United States" (Act of June 26, 1884, sec. 2). As above shown, a seaman may be discharged for unusual or cruel treatment, and while in the present case no cruel treatment is actually recorded, yet if the consul-general discharged Dowd for these reasons, or because he feared such (214) treatment might supervene, the seaman himself joining in the application, your first question must be answered in the affirmative. You next inquire whether the master of the vessel has the legal right to impose and collect the fines above mentioned. As shown by the master's log book, Dowd lost two days' work as a result of his intoxication and consequent illness, and was thereupon fined twelve days' pay or $14. Section 4528, Revised Statutes, pro- vides that a seaman is not entitled to wages for any period during which he unlawfully refuses or neglects to work when required. In the absence of other authority permitting the imposition of such fines, your question must be answered in the negative. In my judgment the log-book entries do not amount to satisfactory evidence of unlawful re- fusal or neglect to work when required. Your third inquiry is: Should extra wages have been collected? By section 4600, Revised Statutes, as amended by the act of June 26, 1884, a seaman who has deserted on the ground of cruel or unusual treatment, and is discharged by the consular officer, is entitled to one month's pay, and this provision is construed to apply to seamen discharged for the same reason, but who have not deserted (Cons. Reg., par. 222). I am of the opinion that if Dowd was discharged by the consul-general because of unusual or cruel treatment, he is en- titled to the one month's extra wages allowed by statute, and that some reasonable discretion is to be permitted to the consular auth- ority in determining this extra allowance in reference to actual or anticipated ill-treatment and a discharge consequent thereon. Very respectfully, JOHN W. GRIGGS. The Secretary of State. 629 Vol. XXIII, p. 93 (GRIGGS) Vol. XXIII, p. 93 (Griggs) ADMINISTKATION— ALIEN LAW OF CUBA— TKEATY OF PAEIS Under article IX of the treaty of Paris, 1898 (30 Stat., 1759), a Spaniard born in the peninsula, who died in Cuba before the expiration of one year from the ratification of that treaty, was, in contemplation of the treaty, a Spanish sub- ject at the time of his death. Article XI of that treaty obliges the United States to see that Spaniards in Cuba have the same rights to ai)pear before Cuban courts and pursue the same course therein as citizens of Cuba, but it does not make it unlawful for the laws of that country to give them better methods of appearing and proceeding as aliens or Spanish subjects than those enjoyed by the citizens themselves. Consequently that article does not prevent article 44 of the alien law of Cuba from being ap- plicable to the estate of Don Kamon Marti y Buguet, a native of Tarragona, Spain, and a Spanish subject, who died intestate at Baez, Santa Clara, Cuba, July 2, 1899. Under article 44 of said alien law, foreign consuls were authorized to be the administrators and judges in charge of the business of settling estates and suc- cession to property of aliens dying intestate in Cuba. This privilege having been denied the Spanish consul by the court of Santa Clara, that court was without jurisdiction to administer the estate of Don Ramon Marti y Buguet. To oust the consul altogether and proceed without him was to proceed without jurisdiction. Department of Justice, April 26, 1900, Sir : I have the honor to acknowledge the receipt of the follow- ing request for an opinion. War Department, Washington, April 16, 1900, Sir: I have the honor to present a matter arising in a court of Cuba which seems to involve an interpretation of the treaty of peace with Spain. On July 2, 1899, one Ramon Marti y Buguet, a native of Tarra- gona. Spain, and a Spanish subject, died intestate at Baez, Santa Clara, Cuba, leaving an estate. The court of Santa Clara, having jurisdiction under Spanish law to administer upon estates of persons dying within its jurisdiction, assumed control of said estate and pro- ceeded to administer thereon pursuant to Spanish law for the admin- istration of estates of deceased natives of Cuba. On the 15th of July, 1899, the Spanish consul at Cienfuegos, hav- ing learned of the death of Marti, addressed a letter to the .judge at Santa Clara, requesting that his consulate be permitted to administer upon the estate of the deceased, pursuant to the provisions of article 44 of the alien law put in force in the island of Cuba while Spanish dominion prevailed therein. The court refused to comply with the request of the Spanish con- 630 OPINIONS OF ATTORNEYS GENERAL sul, and the estate was administered upon in accordance with the laws regulating the administration of estates of deceased natives of the is- land. The Spanish minister at this capital calls the attention of the government of the United States to this matter and requests this gov- ernment to annul the orders made regarding said estate by the judge of said court. The questions thus presented appear to me to be : 1. Under the provisions of the treaty of peace between the United States and Spain (December 10, 1898), did the court of Santa Clara have exclusive jurisdiction to administer upon the estate of said Don Ramon Marti, deceased? 2. If the said Don Ramon Marti at the time of his death was a resident of Santa Clara, Cuba, did the Spanish consul (95) have the right to participate in the administration of said estate? 3. If the request of the Spanish consul to be allowed to par- ticipate in the administration of said estate was improperly refused by the court, did the court thereafter possess jurisdiction to admin- ister upon said estate? I have the honor to request that you will favor me with your opinion upon the matter above presented. Very respectfully yours, ELIHU ROOT, Secretary of War. The Attorney-General. Note. — The original papers in the case are also inclosed, which please return with your reply. 1075 and inclosures 1, 3, 4, 5, 6, 7, and press copies. The inclosures of your letter show the following order of the judge of Santa Clara, dated the 25th of July, 1899 : "As it appears that Don Ramon Marti y Buguet, a native of Tarragona, died on the 2d instant, in the precinct of Baez, belonging to this judicial district, without leaving any relatives or testamentary provisions, this court has ordered the proclamation of the intestacy. As it appears that, on the 15th instant, the Spanish consul at Cien- fuegos addressed a communication to this court, stating that, having heard that the Spanish subject, Don Ramon Marti, had died intes- tate, he has appointed Don Benito Menduina, under article 44 of the alien law in force, to draw up the inventory and to carry out all the other proceedings provided by said law. Considering: First, that there is no evidence to show that Don Ramon Marti had obtained the registration required by article 9 of the treaty of Paris, concluded 631 Vol. XXIII, p. 93 (GRIGGS) between Spain and the United States on the 10th December of last year, in order to retain his Spanish nationality, and (considering) that, until such registration is proved by record, he must be regarded as a native of Cuba, and, consequently, subject only and exclusively to the provisions of the law of civil procedure and the civil code now in force. Considering: that, even if the reason hereinbefore stated did not exist, the pro- (96) visions of the alien law cited by the Span- ish consul at Cienfuegos would still not be applicable, because, under article 11 of the siiid treaty, Spaniards residmg in territories over which Spain has ceded or abandoned her sovereignty, remain subject, in civil and criminal matters, to the jurisdiction of the country in which they reside, in accordance with the ordinary laws in force in such territories, and must appear and plead in the same manner as the citizens of the country in which they reside. In view of the arti- cles of the treaty of Paris, it is declared that the intervention of the Spanish consul at Cienfuegos in these proceedings cannot be permit- ted, and it is ordered that he be notified of this decision by a court- eous note." An examination of Article IX of the treaty of Paris shows that Spaniards residing in the ceded or relinquished territories were to have a year within which to make up their minds whether to pre- serve, not acquire, Spanish nationality, and I think there is no doubt that a Spaniard, born in the peninsula, who died in Cuba before the expiration of that year, was, in the contemplation of the treaty, a Spanish subject at the time of his death. Article XI of the treaty, relied upon by the judge, is, in the Eng- lish copy, as follows: "The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignity shall be subject, in matters civil as well as criminal, to the jurisdiction of the courts of the countrj^ wherein they reside, pursuant to the ordinary laws gov- erning the same; and they shall have the right to appear before such courts, and to pursue the same course as citizens of the country to which the courts belong." The first part of this article treats of the position of Spanish resi- dents when proceeded against in court : the latter provides implements for their use. The former subjects them as defendants to the tri- bunals, according to the ordinary laws which may regulate the com- petency of the tribunals (leyes comunes que regulen su competencia) ; the latter places at their disposal, though aliens, the right to appear before the tribunals (comparencia en juicio) according to (97) the same laws of procedure (forma) and carrying on the same course of pleading and practice (procedimientos), as citizens of the country. 632 OPINIONS OF ATTORNEYS GENERAL In so placing at their disposal the free right to appear and pro- ceed like citizens, I do not understand that the treaty intended to make it unlawful to give them better methods of appearing or pro- ceeding, as alien parties or as Spanish residents, in addition to those of citizens. The provision was for their benefit — they were to be allowed, at least, the same "forma" and same "procedimientos" as citizens. On the other hand, there is still less reason to say that as defendants they could not be subjected to any laws regulating the jurisdiction of the courts except those concerning cases between citizens of the country. The first part of Article XI says nothing of citizens of the country. It says they shall be subject to the tribunals according to the ordinary, the usual laws (comunes) concerning their compentency or jurisdiction. What is meant by ordinary or usual? It was usual in every one of the countries mentioned to have laws concerning aliens, laws which incidentally affected the competency of the courts. Article IX of the treaty alludes to these long-familiar laws and the possibility of the others to be enacted. Such as these, in my opinion, are not excluded by the word ordinary (comun). Spanish residents, at the time of the making of the treaty, were somewhat uneasy lest they should be persecuted, and desired to be guaranteed that a proper course of procedure would be followed in criminal and civil actions against them ; but they expected to be aliens, subjects of a foreign sovereign, and to be treated by the laws as such. They desired to be subjected to the tribimals only as other aliens might be ; to the ordinary tribunals acting without special authority directed against them. Article 47 of the alien law, which denied any special fuero to aliens (not, as translated, "special right or privilege"), operated to confirm a transfer of aliens ( extra jeros) in the provinces from the old fuero de extranjeria and other special fueros (e. g., of war and marine) to the same courts to (98) which Spaniards were subject, "according to the cases," certainly without any purpose by so doing to make them cease to be aliens or to prevent the interposition in ad- ministrations of their respective consuls ; and I think it was as little the intent of the provisions of Article XI of the treaty to exclude that interposition. The article forbids the establishment of the old fuero of aliens and that of a new fuero of Spaniards, but not all laws affecting the business concerning aliens, which may come into the ordinary courts of fueros "according to the cases." Such a treaty provision might even be unconstitutional and void. The reasons given in 1868 and 1869 for the general abondonment of special fueros for the ordinary or common fuero were : 633 Vol. XXIII, p. 93 (GRIGGS) "111 those regions (colonies), as in Spain, the diversity of fueros paralyzes the inarch of the administration of justice by the numerous jurisdictions (competencias) to which it gives rise, disorganizes the judicial hierarchy, renders impossible the formation of a correct and enlightened jurisprudence, and is the cause at times of contradictory judgments in identical cases, which diminishes respect for the law and for the tribunals." I cannot suppose, without manifest proof, that the United States were stipulating to cripple permanently in Porto Rico and the Philip- pines, and (by persuasion) in Cuba, the vital power to make and judicially enforce laws concerning alien inhabitants. It must be remembered that, so far as Cuba is concerned, this Article XI does not bear the same relation to the alien law as though the latter were an act of congress. The treaty is an agreement be- tween Spain and the United States; supreme law for and over the lat- ter, but not for and over Cuba. It obliges us, while acting in that country, to see to it that the Spaniards there are treated as the Article XI intends; but the alien law, while temporarily continued and en- forced by the power of the United States, is rather the law of and for another country. It is an old law in Cuba, and is doubtless in- tended to be left in Cuba when we and our treaty are gone. In my opinion, then, there is no reason to say that Article (99) XI of our treaty prevents article 44 of the alien law of Cuba from being applicable to the estate of Don Ramon Marti y Buguet. Both of the conclusions of the court at Santa Clara, therefore, as I think, proceeded from erroneous views of the treaty of 1898, Your third question is: "If the request of the Spanish consul to be allowed to participate in the administration of said estate was improperly refused by the court, did the court thereafter possess jurisdiction to administer upon said estate?" At first view this seemed to me a question so exclusively of Spanish civil law, with which the secretary of justice and the courts of Cuba are familiar, that I was disposed to suggest that it be referred to them for consideration, in the light of the views concerning the treaty hereinbefore set forth. But as I perceived from the inclosures of your letter that two secretaries of justice and some local official at- torneys in Cuba have had this matter under consideration, and as I recognized that the international aspect of it might render it difficult for the question to be determined by the familiar rules of the Spanish law concerning appeals, proceedings in cassation, decisions between conflicting jurisdictions, etc., it seemed to me better to attempt to give a direct answer to your inquiry. 634 OPINIONS OF ATTORNEYS GENERAL An examination of the original Spanish of the alien law. article 44 (of which you inclosed a translation), makes it clearer that the first paragraph of that article aims at the preservation of the property for the benefit of the heirs, rather than the exercise of the judicial power of Cuba in determining who may be the heirs or determining any other question concerning the estate. Who, then, is expected by the alien law to determine such ques- tions — the consul, the local judge, or both? If the consul is to have any judicial function in the matter, is he, with the local judge, to constitute a tribunal exercising the judicial power of Cuba ; is he to exercise the judicial power of his own coimtry and M^holly exclude the local judge from judicial action, or is the consul to exercise the judi- cial power of his own country upon certain questions and to be the admin- ( 100) istrator as an officer of his o^\^a country, and the judge, with regard to other questions, to step in and exercise the judicial power of Cuba ? It seems to me that some light may be thrown upon these ques- tions by articles 42, 43, and 45 of the alien laAv, articles 42 and 43 speaking (in the original Spanish) of demands giving rise to a special set of questions, and article 45 providing that in intestate proceedings the Spanish courts shall have jurisdiction only of those demands. In the translation of the alien law which you sent me the word "de- mands" is omitted from articles 42 and 43, and your translation of them, and of articles 44 and 45, is as follows: "Art. 42. They shall also be subject to said laws and courts in all suits instituted by or against them for the fulfillment of obliga- tions contracted within and outside of Spain in favor of Spaniards, or which involve the ownership or possession of property situated in Spanish territor5^ "Art. 43. The Spanish tribimals shall also have jurisdiction over and shall take cognizance of suits between aliens brought before them, and which involve the fulfilment of obligations contracted or to be ful- filled in Spain. "Art. 44. In the case of an alien dying intestate, the judicial authority of the town in which the death occurs shall, together with the nearest consul of the nation to which the deceased belonged, or with the person appointed by the consul in his stead, take an inven- tory of the property and goods and shall take the necessary steps to have the same placed imder custody and at the disposal of the heirs. "Should the alien be a resident, and should he die outside of his domicile, the judge of the latter, to whom notice shall be sent by the judge of the place where the death occured, shall fulfill the pro- 635 Vol. XXIII, p. 93 (GRIGGS) visions of the foregoing paragraph with regard to the property and effects of the deceased existing there. "Should there be no consul in the town where the death occured or in the domicile, the judicial authority, while awaiting the arrival of the consul, whom he shall advise immediately, or of his delegate, shall only take the measures necessary for the custody of the property and of the goods. "Art. 45. In intestate as well as in testamentary successions (101) of aliens, the Spanish courts shall have cognizance only of the claims and demands referred to in the foregoing articles." Further light, I think, can be thro\\'n upon the questions by an examination of two treaties, the making of which closely proceeded the alien law of 1870, one of Spain with Franch (A. D. 1862) and the other of Spain with Italy (A. D. 1867). I quote three articles, which are substantially the same in both treaties : "XVII. In case of the decease of any subject of one of the con- tracting parties in the territory of the other, the local authorities must give immediate notice to the consul-general, consul, vice-consul, or consular agent in whose district the decease has occured, and they, on their part, must give the same notice to the local authorities when the decease comes to their know^ledge first. "If an Italian in Spain or a Spaniard in Italy should die with- out making a will or without appointing a testamentary executor; or if the legitimate or testamentary heirs should be minors, incapable, or absent, or if the testamentary executors appointed should be incap- able, or should not be found in the place where the property has been left, the consuls-general, consuls, and consular agents of the deceased's nation shall have the right of proceeding successively to the following operations : "1. To affix seals, ex officio or at the request of the parties in- terested, on all the movable property and papers of the deceased, giv- ing notice of this operation to the competent local authority, who may be present and affix his own seals also. "These seals, as well as those of the consular agent, must not be removed without the consent of the local authority. Nevertheless, if, after a notice addressed by the consul or vice-consul to the local auth- ority, inviting him to be present at the removal of the double seals, he should not appear within forty-eight hours from the time of re- ceiving the notice, the said agent may proceed to the operation by himself. "2. To draw up the inventory of all the goods and effects of the deceased, in the presence of the local authority, if he has attend- ed in consequence of the aforesaid notification. 636 OPINIONS OF ATTORNEYS GENERAL (102) "The local authority shall put his signature to the re- ports drawn up in his presence, and shall have no right to demand fees of any kind for his official intervention in said matters. "3. To provide for the sale at public auction of all the movable effects of the estate which may deteriorate and of those which may be difficult to preserve, as well as of the collections or effects for the dis- posal of which there may be favorable opportunities. "4. To deposit in a secure place the effects and securities in- ventoried ; to keep the amoimt of the debts and incomes received and the proceeds of the sales in the consular house, or to intrust them to some merchant who gives good security. In both cases he must pro- ceed in concurrence with the local authority who has taken part in the previous operations, if, after the summons referred to in the fol- lowing paragraph, subjects to the country, or of a third power, should represent themselves as interested in the estate. "5. To annoimce the death which has taken place and to sum- mon, by means of the newspapers of the place and of the deceased's country, such persons as may have claims against the estate, in order that they may send in their respective claims duly approved within the legal period of each country. **If creditors of the estate should appear, their debts must be paid in fifteen days from the completion of the inventory, if there should be ready money enough for the purpose; and if not, as soon as the funds can be obtained in the most convenient manner, or with- in the period fixed by common consent between the consul and the majority of those interested. If the respective consuls should refuse payment of one or more of the claims brought in, alleging the insuf- ficiency of the property of the estate to satisfy them, the creditors may, if they consider it advantageous to their interest, demand of the competent authority the power of constituting themselves as a body. "Such a declaration having been obtained by the legal means established in each of the two nations, respectively, the consuls or vice-consuls must immediately consign to the judicial authority or to the syndics of bankruptcy, as the case may be, all the documents, ef- fects and securities be- (103) longing to the estate; and the said agents will remain as the representatives of the heirs who are absent, minors or incapable. "6. To administer and liquidate the estate, either themselves or through a person appointed on their responsibility, the local auth- orities having no power to interfere in these operations unless subjects of the country or of a third power should have to prove rights upon t 637 Vol. XXIII, p. 93 (GRIGGS) the estate itself, and that in such case difficulties should arise chiefly proceeding from some claim which gives rise to discussion among the parties ; the consuls-general, consuls, vice-consuls, or consular agents having no right to decide therein, it must be brought before the tri- bunals of the country, whose place it is to provide for and settle such difficulties. ' ' The said consular agents will then act as representatives of the estate ; that is, they will retain the administrations and the right of definitely liquidating the inheritance, as well as that of proceeding to the sale of the effects in the periods before prescribed. They will take care of the interests of the heirs, with the power of appointing advocates to maintain their rights before the tribunals; and it is understood that they must furnish all the papers and documents necessary to explain the question which is submitted to their judg- ment. "When the sentence has been pronounced, the consuls-general, consuls, vice-consuls, or consular agents must execute it, unless they interpose an appeal; and they will also continue of full right to carry on the liquidation which was suspended until judgment had been passed. "7. To consign the inheritance or the produce thereof to the lawful heirs or to their agents, but not until the expiration of the term of six months from the date on which the announcement of the death was published in the newspapers. "8. To constitute, whenever it may be necessary, a guardianship or trusteeship according to the laws of their o'vvn country. "XVIII. If an Italian die in Spain or a Spaniard in Italy, at a place where there is no consular agent of his nation, the competent local authority shall proceed, in accordance with the laws of his coun- try, to make an inventory of the effects (104) and to liquidate the property left, under the obligation of rendering an account as soon as it is possible of the results of his operations to the respective em- bassy' or legation, or to the consulate or vice-consulate nearest to the place where the property has been left ; but from the instant that the consular agent nearest to the place where the property has been left; makes his appearance, either in person or by means of any delegate, the intervention of the local authority must be in accordance with the provision in Article XVII of this convention. "XIX. The consuls-general, consuls, vice-consuls, and consular agents of both nations shall attend exclusively to the inventories and other precautionary measures for the preservation of the hereditary property left by sailors of their nation dying ashore or on board 638 OPINIONS OF ATTORNEYS GENERAL the vessels of their country, whether during the voyage or in the port of their arrival." It is clear that under this treaty system between these three Latin countries — Spain, Italy and France — the consul is to exercise an ex- traterritorial judicial power and to be the real administrator of the es- tate ; but that disputes in which the country where the death occured has some special interest, as where its own people or the people of a third country whom it should protect are concerned, are to be carved out of his jurisdiction and settled by the local judicial authority, leav- ing him to resume his functions when these special questions have been determined. Similar treaties had anciently been made with England. Thus, in Warden 's Consular Establishment, page 252, we read : "In a treaty with Spain, made in 1667, it was stipulated, that the goods and estates of Englishmen, dying without will in that kingdom, were to be put into inventory, with their papers, writings, and books of accounts, by the consul or other public minister of the King of Great Britain, and placed in the hands of two or three merchants named by the said consul or public minister, to be kept for the pro- prietors or creditors; and that neither the Cruzada, nor any other judiatory whatsoever, should intermeddle therein; which, (105) also, in the like case was to be observed in England, toward the subjects of the King of Spain." Still further light is shed upon our questions, I think, by the con- sular system of Spain, in which her consuls in foreign countries are authorized to exercise all the powers of courts of first instance, if per- mitted to do so by the laws of the country to which they are ac- credited. I cannot but think, from these and similar considerations, that the privilege intended to be accorded to foreign consuls by article 44 of the alien law was not merely to be present and see that the local judicial authority did what was proper, nor to exercise any part of the judicial power of the country to which the consul was accredited, but to be the administrator and judge in charge of the business of settling the estate and succession. It seems to me, therefore, that to oust the consul altogether, as was done in the matter of the estate of Don Ramon Marti y Buguet, and proceed without him, was to proceed without jurisdicion, and I herefore answer your third question in the negative. Respectfully, JOHN W. GRIGGS. The Secretary of War. 639 Vol. XXIII, p. 112 (GRIGGS) Vol. XXIII, p. 112 (Griggs) PORTO EICO— EXHORTO OR LETTER ROGATORY Department of Justice, May 7, 1900. (114) Extract) In the courts of Great Britain a Span- ish consul within his district was instructed, under the royal orders of Spain, to obtain the testimony of vohmtary witnesses by proceed- ings before a magistrate, but to attend to citations himself. This was expressly upon the ground of the failure of English institutions to authorize the courts to take such proceedings, and was, when we con- sider that the Spanish consul is. so far as permitted by the local law, a judge of the peace and a judge of first instance, merely making use of a second Spanish court and not of a foreign court. Respectfully, JOHN W. GRIGGS. The Secretary of War. Vol. XXIII, p. 400 (Griggs) AMERICAN SEAMEN— FILIPINOS— CUBANS— PORTO RICANS Seamen born in the Philippine Islands, being persons whose civil and political status is, by the treaty of peace with Spain (30 Stat., 1759), declared to be a matter for the future determination by congress, are not citizens of the United States within the meaning of any statute concerning seamen or any other statute or law of the United States. The same thing is true, in a more obvious way, and with greater force, of Cuban seamen. A Porto Rican engaged in the occupation of a seaman in the American mer- chant marine, including that of Porto Rico, is an American seaman within the meaning of the statutes relating to relief by consuls, in view of the provisions of sections 9 and 14 of the act of April 12, 1900 (31 Stat., 79), providing a civil government for Porto Rico. All persons shipped in the United States on an American vessel have been, according to the practice of the government, treated as entitled to relief under the laws relating to seamen. A place at which vessels of the United States receive their character as such, and where American shipping commissioners ship the crews of such vessels, is to be regarded as a place such that a person domiciled there and engaging in the oc- cupation of a seaman or vessels of that character, is an American seaman within the intent of the provisions for the relief and protection, in foreign countries, of American seamen. (401) Department of Justice, February 19, 1901. Sir: I have received your letters enclosing communications from the British ambassador at this capital and from the United States consul at Marseilles, concerning Filipino and other seamen. 640 OPINIONS OP ATTORNEYS GENERAL You desire my opinion concerning the status of Filipino seamen on board British vessels arriving at the ports of the United States, in order that British consuls may know whether they may be dis- charged at such ports, and as to the status of Filipino, Porto Rican, and Cuban seamen, in order that our consuls abroad may know what treatment to accord them. Cases recently argued in the supreme court of the United States and now imder consideration there involve in some respects the ques- tion of the relations which Porto Rico and the Philippine Islands sus- tain to the United States ; and may, possibly, in their decision call for some expression on the general subject of the civil status of the na- tive inhabitants of those islands. I do not, therefore, deem it neces- sary or expedient to enter upon any general discussion of this subject in its constitutional aspect. In the argument addressed by me to the court on behalf of the government in the cases referred to, I discussed the subject at considerable length, asserting the principle that the treaty-making power, imder the constitution, may acquire territory without admitting the inhabitants to the rights and status of citizens of the United States, and that by the treaty of Paris the native in- habitants of Porto Rico and the Philippine Islands were expressly intended to be left out of the pale of United States citizenship, and their civil status to be left to the future action of congress. As to the native inhabitants of the Philippine Islands, no action has as yet been taken by congress, and therefore those people remain in the same condition, in this respect, as they were when the treaty was ratified. The act for the temporary government of Porto Rico did not make the native inhabitants of that island citizens of the United States, but defined them to be citizens of Porto Rico. It may be taken, therefore, as undisputed that the executive, the treaty-making, and the legislative branches of the (402) government, regard these native inhabitants, both as to Porto Rico and the Philip- pines, as not vested with the rights or admitted to the status of citizens of the United States in a domestic sense. With the correctness of this view, and this course of executive and legislative action, I fully agree; and until that view is judicially declared to be erroneous, all official action by the executive depart- ments should conform to the same course heretofore followed. Referring, therefore, to the questions suggested by the British ambassador and our consul at Marseilles, I have to say: 1. That seamen born in the Philippine Islands, being persons whose civil and political status is by the treaty, which is the latest ex- pression of the supreme law of the land, declared to be a matter for 641 Vol. XXIII, p. 400 (GRIGGS) future deterniiuatiou by congress, are not citizens of the United States within the meaning of any statutes concerning seamen or any other statute or law of the United States. That is to say, from the standpoint of our government they are not citizens of the United States in any sense. They are persons who are not subjects of any foreign power, and are, from an international standpoint, subjects of the United States, or, to use a term that has been suggested, * 'na- tionals." In a general way our government is responsible for them and to them ; but whether a government chooses to relieve or support individuals who are seamen, or other individuals belonging in any way to the nation, is not a question of international law, but of muni- cipal law, which every government makes to suit itself; and our laws make no provisions of that kind w'hich are intended to apply to these Filipino seamen. 2. The same is true in a more obvious way and with perhaps greater force, if possible, of Cuban seamen. 3. In the case of Porto Rico, the situation is different. As to the Porto Ricans, congress has not been silent. It has passed an act establishing a government in the island, and in many ways affecting the rights and duties of the Porto Ricans and their relations with the United States. One section of the act declares (sec. 7) : "That all inhabitants continuing to reside therein who were Spanish subjects on the eleventh day of April, eight- (403) een hun- dred and ninety-nine, and then resident in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citi- zens of Porto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Cro\Mi of Spain on or before the eleventh day of April, nine- teen hundred, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the eleventh day of April, eighteen hundred and ninety-nine; and they, together with such citizens of the United States as may reside in Porto Rico, shall constitute a body politic under the name of The People of Porto Rico, with governmental powers as hereinafter conferred, and with power to sue and be sued as such." The obvious intent of congress is to stop short of making the Porto Rican a citizen of the United States in the full sense of the phrase. But it does not necessarily follow that the extension to Porto Rico of the laws of the United States, provided for in section 14 of the organic act, was not intended to extend to Porto Rican seamen the statutes of the United States concerning the relief of American sea- men. Those statutes contemplate citizens of the United States, or persons who have declared their intention to become such (R. S., 642 OPINIONS OP ATTORNEYS GENERAL 2174), and foreigners domiciled in the United States, or shipped in an American vessel in a port of the United States, and presumed to be there domiciled, who act as seamen on American vessels. Matthews V. Offley, 3 Sumn., 115. The fact of actual or presumed domicile seems to be regarded as effective, in the absence of full citizenship, to include a person with- in the intent of the statutes relating to the relief of American sea- men. Other members of the crew of an American vessel, while part of the crew and on the vessel, are protected by and subject to those laws of the nation to which the vessel belongs, which it has a right to pass upon the legal theory that the vessel is a part of that nation 's territory. But I do not understand that seamen who are actually members of the crew of an American vessel are now in question. I held, in an opinion of July 22, 1898, that vessels from Hawaiian ports were subject to the tonnage tax upon arrival at American ports after the cession of (404) Hawaii, on the ground that Hawaiian vessels, having been foreign vessels prior to the cession and when the statutes concerning the tonnage tax were passed, did not, by the mere fact of cession, cease to be within the purview of those statutes as foreign vessels. Applying the same principle, the Filipinos, having been foreigners when these statutes relating to the relief of American sea- men were passed, and the treaty of Paris, instead of purporting to apply those statutes to them, having affirmatively declared that their civil rights and political status were reserved for future action by con- gress, cannot be regarded as within the intent of these statutes. Un- questionably they were not when the status was passed, and, equally clearly, the treaty did not intend to apply the statutes to them. I am of the opinion, therefore, that these statutes do not apply to a Filipino domiciled in the Philippines, even when from on board an American vessel ; but I am inclined to think that a Porto Rican en- gaged in the occupation of a seaman in the American merchant ma- rine, including that of Porto Rico, is an American seaman within the meaning of the statutes relating to relief by consuls. It appears from the consular regulations that hitherto those en- titled to relief have included "foreigners regularly shipped in an American vessel in a port of the United States ; ' ' seamen who are citi- zens of the United States regularly shipped anywhere in an American vessel, those who have declared their intention to become citizens be- ing treated as such citizens. "Whether or not it was merely because of a presumption that a man shipped in a port of the United States was domiciled in the United States, the foreigner shipped in th» United States seems to have long since acquired a settled status with regard to these relief statutes; so that all persons shipped in the 643 Vol. XXIII, p. 400 (GRIGGS) United States on an American vessel have been, according to the practice of the government, treated as entitled to relief. This being the practice, congress, in the act creating a govern- ment for Porto Rico, may be regarded as having intended to make American seamen of Porto Ricans who in Porto Rico become a part of the American merchant marine. Section 14 of that act declares that the statutory laws of the (405) United States not locally inap- plicable are to have "the same force and effect in Porto Rico as in the United States.*' That this included the laws concerning vessels of the United States, concerning shipping commissioners, and the shipping and discharge of seamen, is clearly to be inferred from sec- tion 9 of the same statute, both from what it says and from what it omits to say. That section provides that the Commissioner of Navi- gation shall make regulations "for the naturalization of all vessels o\Mied by the inhabitants of Porto Rico on the eleventh day of April, eighteen hundred and ninety-nine, and which continue to be so owned up to the date of such nationalization, and for the admission of the same to all the benefits of the coasting trade of the United States ; and the coasting trade between Porto Rico and the United States shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts of the United States. Nothing is said of vessels subsequently owned by inhabitants of Porto Rico, nor is anything said about Porto Rican vessels engaged in foreign trade ; but unquestionably it was not intended to nationalize vessels owned on a particular date and leave unnational, vessels that might thereafter be ovMied by inhabitants of Porto Rico, or to admit Porto Rican vessels to the specially privileged home trade and not to the foreign-going trade. Section 14 was supposed to provide for all this. Giving a liberal construction to the statute, I think it may be said that a place at which vessels of the United States were to receive their character as such, and where American shipping commissioners were to ship the crews of such vessels, was regarded as a place such that a person domiciled there, and engaged in the occupation of a seaman on vessels of tliat character, would be an American seaman within the intent of provisions for the relief and protection in foreign coun- tries of American seamen. Perhaps I should add that the good offices of our consuls can very properly be extended to the Filipinos and Cubans. Very respectfully, JOHN W. GRIGGS. The Secretary of State. 644 OPINIONS OF ATTORNEYS GENERAL Vol. XXIV, p. 69 (Knox) GERMAN LETTERS ROGATORY— EXECUTION OF BY UNITED STATES COURT Department of Justice, June 9, 1902. (70) (Extract) The usual practice in England and the United States has been to take testimony abroad by open commission issued from a court of record and directed to persons vested with no local judicial authority in the foreign country, who proceed as com- missioners of the instance court to obtain voluntary testimony. (Whar- ton on the Conflict of Laws (1882), sec. 723 et seq.) This method was formerly the usual and the only regular mode of taking deposi- tions in a foreign country. (Stein v. Bowman, 13 Pet., 209; Froude V. Froude, 1 Hun., 76.) Letters rogatory or requistorial, drawn from the civil law, have obtained, as a rule, on the Continent of Europe, and are currently employed more frequently than at an earlier day. Under such letters, and by the doctrines of international law respect- ing comity, the courts of each country are held boimd to execute com- missions to take evidence, subject to the proviso that the requirement shall contain nothing to prejudice national sovereignty, and that re- ciprocity in such matters shall be assured. It seems to be well settled that letters rogatory are issued only when an ordinary commission cannot be executed, that their use rests wholly upon comity between foreign states, that interrogatories are generally attached , and that the law of the forum to which the letters are addressed governs the procedure under them. (Whart. Conf. Laws, ut supr*; Nelson v. United States, 1 Pet. C. C, 235 ; Kuehling V. Leberman, 9 Phila., 160 ; Doubt v. Pittsburgh B. B. Co., 6 Pa. Dist. Rep., 238; sec. 4071, R. S.) Section 875, Revised Statutes, provides for letters rogatory from United States courts in suits in which the United (71) States have an interest; and per contra, for letters rogatory addressed from a foreign court to a circuit court of the United States. And sections 4071-4074, Revised Statutes, provide for the taking of testimony in this country, to be used in foreign countries, in suits for the recovery of money or property in which the foreign government has an inter- est, either by commission or letters rogatory, under the authority and supervision of the district judge of the district where the witness re- sides. So that the United States has recognized by statutory pro- visions and judicially the principle of international comity involved. 645 Vol. XXIV, p. 69 (KNOX) The various states, either under statutes or pursuant to general doc- trines, reciprocate with each other and with foreign countries in the same manner. Very respectfully, P. C. KNOX. The Secretary of State. Vol. XXIV, p. 116 (Hoyt) GIFTS FROM FOREIGN PRINCE— OFFICER— CONSTITUTIONAL PRO- HIBITION The provision of article 1, section 9, clause 9 of the constitution, which for- bids the acceptance, without the consent of congress, by any person holding any oflSce of profit or trust under the United States, of any "present, emolu- ment, office, or title, of any kind whatever, from any king, prince, or foreign state, "applies as well to a titular prince as to a reigning one; and a simple re- membrance of courtesy, even if merely a photograph, faUs under the inclusion of ' ' any present of any kind whatever. ' ' (117) This prohibition expressly relates to official persons, and does not extend, under the circumstances outlined, to a department of the government or to governmental institutions. Department of Justice, September 8, 1902. Sir: I have the honor to respond to your note of August 27, submitting for my consideration a copy of a note from the German embassy, which commimicates a list of presents bestowed by Prince Henry of Prussia on the occasion of his recent visit to this country. You ask my opinion on the question whether the constitutional pro- vision which forbids the acceptance, without the consent of congress, of any ' ' present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state," may be construed as applying only to a reigning prince, in which case the authority of congress for the delivery of these presents would not be required. The presents consist of portraits given to the navy department, the military aca- demy and the naval academy, and of a photograph to each of several military and civil officers of the United States. The provision of the constitution is as follows: "No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state." (Art. I, sec. 9, cl. 9.) It is evident from the brief comments on this provision, and the 646 OPINIONS OF ATTORNEYS GENERAL established practice in our diplomatic intercourse (2 Story on the Con- stitution, 4th ed., pp. 216, 217; 1 AVharton's Int.. Law Dig., sec. 110, p. 757), that its language has been viewed as particularly directed against every kind of influence by foreign governments upon officers of the United States, based on our historic policies as a nation. Al- though it is manifest that the particular collocation of words in the constitution, like the words "any foreign prince or state" in the neu- trality statutes, refers chiefly to a foreign government and its regular executive (cf. act January 31, 1881; 21 Stat,, 604), it would not, in my judgment, be sound to hold that a titular prince, even if not a reigning potentate, is not included in the constitutional (118) pro- hibition. For the phrase of the provision is "any king, prince, or foreign state," and a titular prince, although not reigning, might have the function of bestowing an office or title of nobility or decora- tion, which would clearly fall under the prohibition. As this re- mark suggests generally the character of the gift, whether a present or some title of honor (although you do not suggest this point), it must be observed that even a simple remembrance of courtesy, which from motives of delicacy recognizes our policy, like the photographs in this case, falls under the inclusion of "any present * * * of any kind whatever." The act of 1881 (supra) which, it is true, refers only to a foreign government, uses the words ' * any present, decoration, or other thing." But as the constitutional prohibition expressly and exclusively relates to official persons, it could not properly be extended, under the circumstances at all events, in my judgment, to a department of the government and to governmental institutions. I have the honor to answer your question in the negative. Very respectfully, HENRY M. HOYT, Acting Attorney-General. The Secretary of State. Vol. XXIV, p. 672 (Knox) CONSULS— INSPECTION CAEDS— UNOFFICIAL SERVICES The president may prescribe a fee, as provided by section 1745, Eevised Statutes, for the services of a consul in furnishing inspection cards to steerage passengers on vessels destined to the United States, as required by the Quarantine Regulations of April 1, 1903, but he has no authority to declare such a fee unof- ficial and to permit the consul to retain it as such. No service by a consul can be unofficial when the applicant has a right to demand it and the consul no right to refuse it. 647 Vol. XXIV, p. 672 (KNOX) (673) Department of Justice, June 11, 1903. Sir: I have the honor to acknowledge the receipt of your com- mimieation of June 5, 1903, in which you ask for my opinion as to the authority of the president to decide that the service of a consul in furnishing inspection cards to steerage passengers on vessels de- stined to the United States, as required by the quarantine regulations promulgated by the secretary of the treasury April 1, 1903, is un- official, and to establish a fee for such services, likewise unofficial, and which may be retained by the consul. The act of congress approved February 15, 1893 (27 Stat., 449), granting additional quarantine powers and imposing additional duties upon the marine-hospital service, among other things, provides: "The secretary of the treasury shall make such rules and regu- lations as are necessary to be observed by vessels at the port of de- parture and on the voyage, where such vessels sail from any foreign port or place to any port or place in the United States, to secure the best sanitary condition of such vessel, her cargo, passengers, and crew ; which shall be published and communicated to and enforced by the consular officers of the United States," (Sec. 3.) "The secretary of the treasury shall from time to time issue to the consular officers of the United States and to the medical officers serving at any foreign port, and otherwise make publicly known, the rules and regulations made by him, to be used and complied with by vessels in foreign ports, for securing the best sanitary condition of such vessels, their cargoes, passengers, and crew, before their de- parture for any port in the United States, and in the course of the voyage ; and all such other rules and regulations as shall be observed in the inspection of the same on the arrival thereof at any quaran- tine station at the port of destination, and for the disinfection and isolation of the same, and the treatment of cargo and persons on board, so as to prevent the introduction of cholera, yellow fever, or other contagious or infectious diseases; and it shall not be lawful for any vessel to enter said port to discharge its cargo, or land its pa.ssenger8, except upon a certificate of the health (674) officer at such quarantine station certifying that said rules and regulations have in all respects been observed and complied with, as well on his part as on the part of the said vessel and its master, in respect to the same and to its cargo, passengers, and crew." (Sec. 5.) Proceeding under the authority of the above-mentioned act, the secretary of the treasury, April 1, 1903, promulgated the quarantine laws and regulations now in force. These regulations specifically re- quire that each steerage passenger shall be furnished with an inspec- 648 OPINIONS OF ATTORNEYS GENERAL tion card of a particular kind, which shall be stamped by the consul or medical officer at the port of departure. The duty to furnish such inspection card, properly stamped, has been imposed upon consuls by the congress, and is therefore official. The president may prescribe a fee for this official service, but no au- thority has been given him to declare such a fee unofficial and to permit the consul to retain the same as such. Section 1745 of the Revised Statutes gives the president author- ity to prescribe what fees may be charged by consuls for official ser- vices, **and to designate what shall be regarded as official services, besides such as are expressly declared by law." This section does not, in my opinion, authorize the president to make unofficial any services, the duty to perform which has been imposed upon the consul by the congress. When the congress has directed a consul to perform any particular service without fixing a fee for the same, the president may prescribe a fee therefor. In such a case both the service and the fee would be official, and it would be necessary for the consul to account therefor, as provided by law. The distinction between official and unofficial fees has been elab- orately discussed in United States v. Badeau (33 Fed. Rep., 572; 31 Fed. Rep., 697) ; Moshtj v. United States (24 Ct. Cls. R., 1) ; United States V. Moshy (133 U. S., 273). These opinions seem to make it entirely clear that every service, the duty to perform which has been imposed on a consul by law, is official, and that no service by such officer can be unofficial when the party desiring the same has the right to demand it and the consul no right to refuse to give (675) it. Cer- tainly no consul, upon proper demand, could rightfully refuse to issue to a steerage passenger the inspection card provided for by the quar- antine regulations when such passenger had complied with all neces- sary conditions. Very respectfully, P. C. KNOX. The Secretary of State. Vol. XXV, p. 77 (Knox) DESERTERS FROM GERMAN VESSELS— TREATY OF 1871 WITH GERMANY The question as to whether deserters or alleged deserters from German ships- of-war or merchant vessels must, under article 14 of the consular convention of 1871 between the United States and Germany (17 Stat., 929), be given up without the examination authorized by section 5280, Revised Statutes, upon the written request of a German consul and the filing of certain papers named in that article, should be submitted to the proper court for a judicial determination. 649 Vol. XXV, p. 77 (KNOX) Department of Justice, November 2, 1903. Sir: I received your letter of August 18, last, inclosing transla- tion of a note from the German ambassador referring to a statement said to have been recently made public by a United States commis- sioner at San Francisco, defining his future course with reference to the arrest and detention of seamen charged with having deserted from foreign vessels in the port named. The German ambassador contends that under our treaty with his country, upon the written request of the German consul, supported alone by the documents mentioned in the treaty, the persons charged with desertion shall be turned over to the consuls. The commissioner, with whom I have had some corre- spondence, insists that the accused should be allowed to be heard in his own (78) behalf and that there should be an examination of the question whether he is a deserter. The ambassador complains to you concerning the statement of the commissioner and you request an ex- pression of my views in the premises. Section 5280 of the Revised Statutes, upon which the commis- sioner rests his contention, reads as follows : ' ' On application of a consul or vice-consul of any foreign govern- ment having a treaty with the United States, stipulating for the re- storation of seamen deserting, made in writing, stating that the per- son therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other official document, that the person belonged, at the time of desertion, to the crew of such ves- sel, it shall be the duty of any court, judge, commissioner of any cir- cuit court, justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunitj'' to send him back to the dominions of any such gov- ernment " This section originated in an act of March 2, 1829 (4 Stat., 359), which, as amended by an act of February 24, 1855 (10 Stat., 614), was, with a few immaterial changes in punctuation, incorporated into the revi.sion of 1874 as section 5280. Article 14 of the consular convention of 1871 with Germany is in the following language: "Consuls-general, consuls, vice-consuls, or consular agents may 650 OPINIONS OF ATTORNEYS GENERAL arrest the officers, sailors, and all other persons making part of the crews of ships-of-war or merchant vessels of their nation, who may- be guilty or be accused of having deserted said ships and vessels, for the purpose of sending them back on board, or back to their coun- try. (79) "To that end, the consuls of Germany in the United States shall apply to either the federal, state, or municipal courts or au- thorities ; and the consuls of the United States in Germany shall apply to any of the competent authorities, and make a request in writing for the deserters, supporting it by an official extract of the register of the vessel and the list of the crew, or by other official documents, to show that the men whom they claim belong to said crew. Upon such re- quest alone thus supported, and without exaction of any oath from the consuls, the deserters (not being citizens of the country where the demand is made either at the time of their shipping or of their arrival in the port), shall be given up to the consuls." (17 Stat., 929.) It will be observed that section 5280 applies in cases in which we have treaties providing for the restoration of deserting seamen. "When it was enacted we had five treaties on the subject, all of them employing substantially the language relied upon by the ambassador ; one of them was with Prussia. It can not, then, be doubted that this statute, which was for the very purpose of carrying out those treaties, was regarded as consistent with their terms. It was followed by a long series of similar treaties, repeating substantially the same lan- guage relied upon by the ambassador; and the latest treaties with Great Britain, Japan, and other countries, provide for the return of seamen in the manner prescribed by law. Thus, for three-quarters of a century, this statute, which provides for an examination in addi- tion to an inquiry into the question whether a man belongs to the crew of the vessel, has stood and been enforced upon the theory that it was consistent with our numerous treaties on the subject of the restoration of seamen. This would seem to raise a presumption in favor of the harmony of the statute with the treaties, and of the acquiescence of numerous foreign governments in the construction placed upon the treaties by congress. The treaty with Germany is certainly not clearly opposed to such a construction. The first sentence of article 14 provides that con- suls may arrest officers, sailors, etc., who may be guilty, or be accused of having deserted ships, for the (80) purpose of sending them on board, or back to their coimtry. The next paragraph provides for the delivery up to consuls of ' ' the deserters. ' ' 651 Vol. XXV, p. 77 (KNOX) The treaty thus makes a distinction between persons belonging to ike crew and away from the vessel in this country who are deserters and such persons who are accused of desertion. It provides, not that those accused, but that "the deserters" shall be delivered up. The ambassador reads this differently and says that the word "deserters," in the second paragraph, includes those accused of desertion. The first paragraph provides for arresting, the other for delivering up to the consuls. Hence there may well have been a difference of treatment intended, and only "the deserters" may have been intended to be de- livered up. I^ "0, an inquiry to distinguish the deserters from mem- bers of the c '- way from the ship and accused of desertion would be necessary. Ims inquiry is provided for by the law which has stood 80 long upon our statute books. But this statute and treaty provide a method whereby the judi- cial authorities may determine this question. According to either the consul may apply to the proper court. If it should be held by the court that the statute is obligatory, notwithstanding differences which may be held to exist between it and the treaty, which the am- bassador regards, and is probably right in regarding, as of later date than the statute, then it will be necessary to modify the statute. If the ambassador's contention is correct, I have no doubt that the court will so decide. I would suggest, therefore, that an application be made to the proper court and the question fully presented by the German consul- general. Respectfully, P. C. KNOX. The Secretary of State. 652 ANALYSIS OF TREATIES OF THE UNITED STATES RELATING TO CONSULS' GENERAL ACT FOR THE REPRESSION OP APRK vN SLAVE TRADE Signed July 2, 1890. Art. LXXI. AesiBtance of diplomatic and consular officers to local authorities and presence at trials. ARGENTINE REPUBLIC Treaty concluded July 27, 1853, (Friendship, commerce, and navi- gation.) Art. IX. Custody of estates of deceased citizens by consuls. Delivery of prop- erty of deceased citizens to legal heirs. X. Establishment of consuls. Inviolability of consulates and archives. Most favored nation treatment. AUSTRIA— HUNGARY Consular convention concluded July 11, 1870. (Rights, privileges, and immunities of consuls. ) Art. I. Establishment of consuls. Exequatur. Privileges. II. Exemption of consuls from military billetings, service, taxation, etc. III. Exemption of consuls from appearing as witnesses in courts of justice, IV. National coat of arms and flags. V. Inviolability of consulate and archives. VI. Temporary transaction of business in case of absence, death, etc., of consuls. VII. Appointment of vice-consuls and consular agents by consuls. Privi- leges. VIII. Form of communication of consuls with the local authorities. IX. Consul's right to receive depositions of passengers and crew. He may deliver certificates. * This analysis, made by Mr. Woislav Petrovitch, formerly American Vice- CoDBul at Belgrade, Servia, includes the treaties of the United States contained in the Consular Regnlations (1896) and those proclaimed since. No treaties witk countries where exterritorial jurisdiction is exercised have been retained. 653 ANALYSIS OF TREATIES X. Consular jurisdiction over vessels and crew. Presence of consuls at judicial proceedings and search of vessels. XI. Jurisdiction over seamen. XII. Arrest of deserters. XIII. Settlement of damages at sea. XIV. Wrecks. XV. Privileges of consuls. Most favored nation treatment. XVI. Custody of property of deceased citizens by consular officers and search for legal heirs. BELGIUM Treaty concluded March 9, 1880. (Rights, privileges, and immunities of consuls.) Art. I. Establishment of consuls. Most favored nation treatment. II. Privileges and immunities of consuls. Commission. Exequatur. III. Exemption of consuls from military service and taxation, except when traders and landed proprietors. IV. Exemption of consuls from appearing as witnesses in courts except in criminal cases. V. National coat of arms and flag. VI. Inviolability of consuls, consulates, and archives. Consulates not to serve as asylum. VII. Temporary transaction of business in case of absence, death, etc. of consuls. Privileges of officers in charge. VTII. Appointment of vice-consuls and consular agents by consuls. Priv- ileges. IX. Communication of consuls with local authorities in case of infraction of treaties and protection of their countrymen. X. Consuls' right to receive depositions of passengers and crew. They may deliver certificates. XI. Consular jurisdiction over vessels and crew. XII. Consular jurisdiction over crew. Arrest of deserters. XIII. Damages at sea. XIV. Wrecks at sea. Protection of persons and goods saved from wreck. Intervention of local authorities prohibited. XV. Custody of property of deceased citizens and forwarding of same to parties interested. BOLIVIA Treaty concluded May 13, 1858. (Peace, friendship, commerce, and navigation.) Art. XXXT. Establishment of consuls. Most favored nation treatment. XXXTT. Rights, privileges and immunities of consuls. Commission. Exequatur. 654 ANALYSIS OF TREATIES XXXIII. Exemption of consular officers from imposts and taxes, except when traders or landed proprietors. Inviolability of archives. XXXrV. Communications vyith local authorities in regard to arrest of seamen deserters. Consular jurisdiction over vessels and crew. COLOMBIA Treaty concluded May 4, 1850, with New Granada. (Consular privi- leges.) Art. I. Freedom of commerce. Establishment of consuls. II. Commission. Exequatur. III. Consular functions and authority. IV. Consuls of each republic may employ their good offices in favor of In- dividuals of the other having no consul in another country. V. Consuls have no diplomatic character. Prerogatives. VI. Consuls subject to local jurisdiction, excepting in the cases in which they receive exemption. National treatment. VII. Consuls not authorized to issue passports. Consular jurisdiction over vessels and crew. COSTA RICA Treaty concluded July 10, 1851. (Friendship, commerce, and naviga- tion.) Art. VIII. Custody of property of deceased citizens. Search for legal heirs. IX. Citizens exempt from military service. National treatment. X. Establishment of consuls and diplomatic representatives. Privileges and immunities. DENMARK Treaty concluded April 26, 1826. (Friendship, commerce, and navi- gation.) Art. VIII. Freedom of commerce and navigation. Establishment of consuls. Most favored nation treatment. IX. Consular commission and exequatur. X. Consuls and consular officers exempt from public and military services. Exemption from taxation if not traders or landed proprietors. Additional articles, concluded July 11, 1861. Art. I. Consular jurisdiction over vessels and crew. II. Arrest of deserters. 655 ANALYSIS OF TREATIES DOMINICAN REPUBLIC Treaty concluded February 8, 1867. (Amity, commerce, navigation, and extradition.) Art. XX\''I. Establishment of consuls. Privileges. Most favored nation treatment for non-trading consular officers. Inviolability of archives. Con- sular jurisdiction over vessels and crew. Arrest of deserters. XXVII. Extradition of criminals. ECUADOR Treaty concluded June 13, 1839, (Peace, friendship, navigation and commerce. ) Art. XXIX. Freedom of commerce and navigation. Establishment of consuls. Most favored nation treatment. XXX. Consular commission and exequatur. XXXI. Privileges of consular officers. Exemption of non-trading consular officers from taxation. Inviolability of archives. XXXII. Arrest of deserters. XXXIII. Powers and immunities of consuls. XXXIV. Most favored nation treatment. FRANCE Convention concluded February 23, 1853. (Consular privileges.) Art. I. Establishment of consuls. CommisBion. Exequatur. II. Privileges. Exemption of non-trading consuls from taxation. Arms and flags. Consuls not obliged to appear as witnesses in courts. Consular pupils and their privileges. Temporary transaction of business in case absence, death, etc. of consuls. Prerogatives of acting consuls. III. Inviolability of consulates and archives. Consulates not to serve as asylum. IV. Consular rights regarding the protection of their countrymen. V. Appointment of vice-consuls and consular agents by consuls. Approval of local authorities necessary. VI. Consuls' right to deliver certificates. VII. National treatment of citizens. VIII. Consular jurisdiction over vessels. IX. Arrest of deserters. Form of communication of consuls with local authorities. 656 ANALYSIS OF TREATIES X. Receiving declarations, etc. of vesiels by consuls. Examination of stowage by consuls. XI. Wrecks. Measures to be taken for protection. Re-exported goods from wrecks not liable to any duty. XII. Privileges and immunities of consular officers. Most favored nation treatment. GERMAN EMPIRE Consular convention concluded Dec. 11, 1871. (Consuls and trade- marks.) Art. I. Establishment of consuls. II. Commission. Exequatur. III. Privileges and immunities of consular officers. Exemption from taxes if not landed proprietors or traders. Most favored nation treat- ment. IV. National coat of arms and flags. V. Inviolability of consuls, consulates and archives. Consulates not to serve as asylum. VI. Temporary transaction of business in ease of absence, etc. of consuls. VII. Appointment of vice-consuls and consular agents by consuls. VIII. Consular communications with local authorities in regard to protection of their countrymen. IX. Consular jurisdiction over vessels. X. Custody of property of deceased citizens by consuls. Search for legal heirs. XI. Inventorying and safe-keeping of goods and effects left by citizens on ships. XII. Consuls' rights on board of ships. XIII. Consular jurisdiction over vessels. XIV. Arrest of deserters. Communication with local authorities. XV. Damages at sea. XVI. Wrecks. XVII. Patents, trade-marks. National treatment. GREAT BRITAIN Concluded July 3, 1815. (Commerce.) Art. IV. Establishment and treatment of consuls. Treaty concluded June 2, 1892. (Reclamation of deserting seamen.) Art. I. Arrest of deserters. 657 ANALYSIS OF TREATIES GREECE Treaty concluded Dec. 10-22, 1837. (Amity and commerce.) Art. XII. Establishment of conguls. Privileges. Consular jurisdiction over ves- sels. XIII. Arrest of deserters. Consular convention concluded November 19, 1902. (Dec. 2, 1902.) Art. I. Appointment of consular officers. II. Consular privileges. Most favored nation treatment. III. Exemptions. IV. Testimony by consuls. V. Arms and flags. VI. Immunities of offices and archives. VII. Privileges of acting officers. VIII. Vice-consuls and agents appointed by consuls. IX. Communication of consuls mth local authorities. X. Notarial powers. XI. Estates of deceased citizens. XII. Shipping disputes. XIII. Deserters from ships. XIV. Damages to vessels at sea. XV, Shipwrecks and salvage. XVI. Examination of vessels. GUATEMALA Treaty concluded Aug. 27, 1901. (Convention relative to tenure and disposition of real and personal property.) Art. I. Disposition of real property. II. Disposition of personal property. III. Notice of decease of citizens. HANSEATIC REPUBLICS Additional article to the convention of friendship, commerce, and nav- igation of the Dec. 20th, 1827, between the United States of America and the Hanseatic Republics of Lubeck, Bremen, and Hamburg, concluded June 4, 1828. 658 ANALYSIS OP TREATIES Art. Consular jurisdiction over vessels. Arrest of deserters. Consular com- munications with the local authorities. Convention for the mutual extension of the jurisdiction of consuls between the United States of America and the Free and Han- seatic Republics of Hamburg, Bremen, and Lubeck, concluded at Washington, April 30, 1852. Art. I. Consular jurisdiction over vesselB and crew. Assistance by local au- thorities. Art. HAITI Mutual extradition of criminals. Signed Aug. 9, 1904. IX. Consuls procedure in making complaint. X. Consuls to act in absence of diplomatic representatives. XrV. Consuls may make demand in consular possessions of the United States. Treaty concluded Nov. 3, 1864. (Amity, commerce, navigation, and extradition.) Art. XXXIII. Establishment of consuls. Privileges. XXXIV. Commission. Exequatur. XXXV. Exemption of non-trading consular officers. XXXVI. Arrest of deserting seamen. Communications of consul with local au- thorities, XXXVII. Extension of freedom of commerce and navigation granted by the present convention. HONDURAS Treaty concluded July 4, 1864. (Friendship, commerce and naviga- tion.) Art. VIII. Privileges of citizens. National treatment. Custody of property of deceased citizens by consuls. Search for lawful heirs. X. Establishment of consuls. Privileges, exemptions and immunities. Most favored nation treatment. 659 ANALYSIS OF TREATIES ITALY Treaty concluded May 8, 1878. (Rights, privileges, and immunities of consular officers.) Art. I. Establishment of consuls. II. Commistion. Exequatur. Privileges. III. Exemption of eonsuls from arrest, military billetings, military service, and taxation. Exemption from taxation does not apply to trading consuls and those possessing real estate. IV. Exemption of non-trading consuls from appearing as witnesses in courtA of law. V. National coat of arms and flags. VI. Inviolability of consular offices and archives. VII. Acting consuls in absence etc. of consuls. Rights, privileges and im- munities. VIII. Appointment of vice-consuls and consular agents by respective govern- ments or consuls. Privileges. IX. Communications with local authorities relative to violation of treaties and protection of subjects. X. Depositions by captains and crew, etc. before consul. Power of con- suls to receive contracts relating to property etc. Consular legaliza- tions. XI. Internal order of vessels. Consular jurisdiction. XII. Disputes between officers and passengers to be decided in circuit or district courts of the United States. XIII. Deserters from ships of war and merchant vessels. Consular jurisdic- tion. XIV. Damages at sea. XV. Wrecks, etc. XVI. Custody of property of deceased subjects. Search for legal heirs. XVII. Privileges, rights and immunities of consular officers. Most favored nation treatment. JAPAN Treaty concluded November 22, 1894. (To go into effect July 6, 1899.) Art. XI. Wrecks. XIII. Consular communications with local authorities. XIV. Privileges. Most favored nation treatment. XV. Establishment of consuls, etc. Privileges and immunities. Most fa- vored nation treatment. XVIII. Validity and duration of the present treaty. Treaty of commerce and navigation. Concluded Nov. 22, 1894. Pro- claimed March 21, 1895. Art. XI. Vessels in distress, shipwrecks. Consular jurisdiction over vesseln. 660 ANALYSIS OF TREATIES XIII. Deserters from ships. XIV. Favored nation treatment. XV. Establishment of consuls. Privileges. Immunities, etc. KONGO FREE STATE Treaty of amity, commerce, and navigation, concluded at BrusseLs, January 24, 1891. Art. Establishment of consuls. Privileges. Immunities. Most favored nation treatment. Exemption of citizens from military service, from arrest except for crimes and from taxation if not traders. National flag. Inviolability of consuls, consulates and archives. Consulates not to serve as asylum. Functions of consuls. Communications with local authorities. Arrest of deserters. LIBEEIA Treaty concluded Oct. 21, 1862. (Commerce and navigation.) Art. VII. Establishment of consuli. MEXICO Treaty concluded April 5, 1831. (Amity, commerce and navigation.) Art. XXVin. Establishment of consuls. Commissions and exequaturs. Privileges and immunities. XXIX. Exemption of consular officers from public service and taxation. In- violability of consulates and archives. XXX. Consular communications with the local authorities. Consular juris- diction over vessels. XXXI. Powers and immunities of consuls. NETHERLANDS Treaty concluded January 22, 1855. (Consular privileges in col- onies.) Art. I. Admission of consuls to Netherlands transmarine possessions. II. Immunities of consuls. 661 ANALYSIS OF TREATIES III. Commission and exequatur. IV. National coat of arms. Consulates not to serve as asylum. V. Inviolability of archives. VI. Consuls without diplomatic character. VII. Appointment of vice-consuls by consuls. VIII. Passport delivered by consuls insufiTicient to permit bearer to establish himself in the colonies. IX. Wrecks at sea. X. Consular communications with the local authorities. Consular juris- diction. XI. Custody of property of deceased persons. Search for interested parties. XII. Consular jurisdiction over vessels. XIII. Privileges of consuls. Exemption of consuls from military service and taxation if not engaged in trade. XrV. Privileges, exemption. Immunities. Most favored nation treatment. Treaty concluded May 23, 1878. (Rights, privileges, and immunities of consular officers — ^not applicable to colonies.) Art. I. Establishment of coniuls. II. Commission. Exequatur. III. Privileges. Immunities. Exemptions. IV. Consuls exempted from appearing as witnesses in courts of justice. V. National coat of arms and flag. VI. Inviolability of consulate and archives. Consulates not to serve as asylum. VII. Transaction of business in case of absence, death, etc. of consuls. VIII. Vice consuls etc. appointed by consuls. Privileges. IX. Consular communications with the local authorities, X. Consular rights, privileges and functions. XI. Consul to be informed in case of death of citizens. XII. Consular jurisdiction over vessels. XIII. Damages at sea. XIV. Wrecks at sea. XV. Custody of property of deceased citizens. Search for lawful heirs. NICARAGUA Treaty concluded June 21, 1867. (Friendship, commerce, and naviga- tion.) Art. VTTI. Custody of property of deceased citizens by consuls. Search for legal heirs. X. Establishment of consuls. 662 ANALYSIS OF TREATIES ORANGE FREE STATE Convention concluded Dec. 22, 1871. (Friendship, commerce, and extradition.) Art. V. Establishment of consuls. Trading consuls treated as nationals. In- violability of consulates and archives. VI. Duties on imports and most favored nation treatment. VII. Most favored nation treatment. VIII. Consular jurisdiction. IX, Criminal cases. X. The surrender to be made by executive of the contracting parties, re- spectively. XI. The expenses of detention, etc. at the cost of party making demand. XII. Fugitive criminals. PANAMA Mutual extradition of criminals. Signed, May 25, 1904. Art. III. Consuls' action in securing extradition. PARAGUAY Treaty concluded Feb. 4, 1859. (Friendship, commerce, and naviga- tion.) Art. X. Custody of property of deceased citizens by consuls. Search for legal heirs. XII. Establishment of consuls. Privileges, immunities. XIV. Privileges of citizens. National treatment. PERU Treaty of friendship, commerce, and navigation, concluded at Lima August 31, 1887. Art. XXX. Establishment of consuls. Eights, privileges, immunities. XXXI. Exemption of consuls from military service and taxation, except when traders and landed proprietors. Inviolability of consulates and archives. XXXII. Consular communications with local authorities. Arrest of deserters. XXXIII. Custody of property of deceased citizens by consuls. Search for legal heirs. 663 ANALYSIS OF TREATIES ROUMANIA Consular convention concluded June 5, 1881. Art. I. Eitablishment of consuls. II. Privileges and immunities. III. Exemption of consuls from arrest except in criminal cases. Exemption of consuls from taxation except when traders and proprietors of real estate. IV. Exemption of consuls from appearing as witnesses in courts of justice. V. National coat of arms and flags. VI. Inviolability of consulates and archives. VII. Temporary transaction of business in case of death, absence, etc. of consul. VIII. Appointment of vice-consuls, etc. by consul. Privileges. IX. Communications with local authorities. X. Consuls may receive depositions of passengers and crew. XI. Consular jurisdiction over vessels. XII. Arrest of deserters. XIII. Damages at sea. XrV. Wrecks at sea. XV. Custody of property of deceased citizens by consuls. Search for legal heirs. EIJSSIA Treaty concluded Dec. 6-18, 1832. (Navigation and commerce.) Art. Vni. Establishment of consuls. Privileges of non-trading consuls. Consular jurisdiction over vessels. IX. Form of communication with local authorities. Arrest of deserters. SERVIA Consular convention, concluded Oct. 2-14, 1881. [Text of this convention same as that concluded June 5, 1881, vrith Boumania, ante.] SPAIN Treaty of friendship and general relations. Concluded July 3, 1902. Art. XIII. Establishment of consular officers. XIV. Consular privileges. 664 ANALYSIS OF TREATIES XV. Consular exemptione. XVI. Testimony by consuls. XVII. National coat of arms and flags. XVIII. Consular offices and archives are inviolable. XIX. Privileges of acting consular officers. XX. Vice consuls and agents appointed by consuls. XXI. Communications with authoritieg, XXII. Notarial powers of consuls. XXIII. Shipping disputes. XXIV. Deserters from ships. XXV. Damages to vessels at sea to be settled by consuls. XXVT. Notice of decease of citizens. XXVII. Care of minor heirs. XXTVIII. Favored nation treatment. Treaty concluded Oct. 27, 1795. (Friendship, limits, and navigation.) Art. XIX. Establishment of consuls. Privileges. Most favored nation treatment. SWEDEN AND NORWAY Treaty concluded July 4, 1827. (Commerce and navigation.) Art. XIII. Establishment of consuls. Protection. Privileges. Inviolability of consulates and archives. Consular jurisdiction over vessels. XIV. Communications of consuls with local authorities. Deserters. SWISS CONFEDERATION Concluded Nov. 25, 1850. (Friendship, commerce, and for the surren- der of fugitive criminals.) Art. VII. Establishment of consuls. Privileges. Most favored nation treatment. In their private transactions consuls treated as natives. Commis- sion. Exequatur. Inviolability of consulates and archives. 665 INDEX ANALYSIS OF THE FEDERAL STATUTES RELATING TO CONSULS ' COMMERCIAL AGENCIES See also Consular Agencies See also Consulates Fees for official services prescribed by President . . R. s. 1745 President may define extent of territory embraced . R. s. 1695 President to provide for stationery, books, etc., of . . R. s. 1748 Principal officers entitled to certain fees collected by subordinates R. s. 1703 COMMERCIAL AGENTS See also Consular Service. ABOLISHMENT OF OFFICE 34 : 100 Apr. 5, 1906 ABSENCE FROM POST Limit of ten days without permission E. s. 1741 18:77 June 17, 1874 APPOINTMENT IN PLACE OF CONSULS R. s. 1690 BONDS. Conditions ; amount R. S. 1697 ; 1699, 1700 30:770Dec. 21, 1898 Deposited with secretary of the treasury R. s. 1697 30:770Dec. 21, 1898 Suits on; procedure, service of process, ap- pearance 30 :770, 771, Dec. 21, 1898 Suits on for transacting business R. s. 1701 DEFINITION R. s. 1674 FEES Accounting, manner of R. s. 1729 ; 1747 Invoices, verification of R. s. 2851 Omitting to collect ; penalty R. s. 1724 Returns when part of compensation ; form . . . . R. s. 1725 128:206 July 31, 1894 Schedulps B and C, agents in ; accounting for R. s. 1747 Schedules B and C, agents not in; accounting for R. s. 1729 "■ This is an authorized extract from the admirable INDEX ANALYSIS OF THE FEDERAL STATUTES by Scott and Beaman. The references preceded by R. H. are to sections of the Roviscd Statutes (1873). The other references are to the volumes and page of the Statutes at Large and to the date of the enactment of the statute. 666 INDEX ANALYSIS OF FEDERAL STATUTES COMMERCIAI AGENTS — Continued FEES — Continued Schedules B and C, agents not in ; excess of . . R. 8. 1732 Schedules B and C, agents not in; salary to consist of E. 8. 1730 JUDICIAL AUTHOEITY. See Consulae Servioe — Judicial Authority OFFENCES False certification ; penalty B. s. 5442 False certification of property, penalty for making E, s. 1737 Fees, omitting to collect; penalty E. s. 1724 Neglect of duty to seamen ; penalty E. s. 1736 Transacting business ; penalty E. s. 1701 OFFICE EENT E. s. 1706 POWEES AND DUTIES Invoices, duties with respect to quadruplicates of 21 : 173 June 10, 1880 Invoices, duties with respect to triplicates of . . . R. s. 2855; 2857 Invoices, indorsement in adjacent countries. . . .R. s. 2856 Invoices produced to commercial agents R. s. 2843 26:131 June 10,1890 Naval supplies purchased by paymasters, certi- ficates as to ruling market prices E. s. 3723 Oaths to patent or copyright applicants, ad- ministration of R. s. 4892 32:1226Mar. 3, 1903 Seamen, provisions for return of R. s. 4577, 4578 23:55 June 26, 1884 Ship's papers, delivery of to master; conditions R. s. 4309 Suits to recover penalty for failure to deposit papers E. s. 4310 Trademarks, verifications of applications 33 : 725 Feb. 20, 1905 Transacting business; prohibition; penalty. ... R. s. 1699-1701 Vessels, appointment of inspectors to determine seaworthiness r. s. 4559 30:757Dec. 21, 1898 Vessels, determination of seaworthiness R. s. 4560 EECOEDS AS EVIDENCE r. s. 896 EEPOETS AND EETUENS of Agricultural statistics monthly 25:186 June 18, 1888 Commercial reports to be made when required. . . R. s. 1712 25:186 June 18,1888 of Fees, when part of compensation; form R. s. 1725 28:206 July 31, 1894 Eevenue, reports of fraudulent practices on . . . . R. s. 2863 of Wages to be made annually 20 : 274 Jan. 27, 1879 SALAEIES under Schedules B and C r. s. 1690 Schedules B and C, if not in R. S. 1730 Term during which payable; allowances R. s. 1740 667 INDEX ANALYSIS OF FEDERAL STATUTES COMMERCIAL AGENTS — Continued VICE-COMMERCIAL AGENTS Appointment regulated by President B. s. 1695 Bonds may be required by President K. 8. 1700 Definition B. s. 1674 False certification ; penalty B. s. 5442 False certification of property, penalty for making B. s. 1737 Fees, accounting for R. s. 1747 Fees, omitting to collect ; penalty B. s. 1724 Fees; returns when part of compensation, form B. s. 1725 28:206 July 31, 1894 Salary, allowance during instructions prohibit- ed B. s. 1740 Salary prescribed by President B. s. 1703 Salary, from what paid B. s. 1695 Seamen, provisions to be made for return of . . . B. s. 4577 ; 4578 23:55 June 26,1884 Ship 's papers, delivery to master ; conditions . . . B. s. 4309 Suits to recover penalty for failure to deposit papers B. s. 4310 Transacting business, when President may for- bid R. S. 1700 CONSULAR AGENCIES See also Commercial Agencies See also Consulates Expense allowance limited to stationery and post- age R. s 1696 Fees received at; excess above $1,000 R. s. 1733 CONSULAR AGENTS See also Consular Service ABSENCE FROM POST Limit of ten days without permission B. s. 1741 18:77 June 17, 1874 APPOINTMENT Manner to remain unchanged 34:100 Apr. 5, 1908 President to regulate B. s. 1695 BONDS Condition against engaging in business, etc. . . .34 :101 Apr. 5, 1906 President may require R. S. 1700 COOLIES, IMMIGRATION OF B. s. 2162 DEFINITION R. S. 1674 DISABILITIES Transacting business, legal practice, etc., when forbidden 34:101 Apr. 5, 1906 Transacting business, when President may for- bid R. s. 1700 34:101 Apr. 5, 1906 FEES Balance after deduction for salary paid into Treasury 34:101 Apr. 5, 1906 668 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR AGEHTS— Continued FEES— Continued Canadian ports, vessels touching at; when ex- empt from K. S. 4222 Foreign moneys to be received for, in Canada, .b. s. 1722 Eeturns when part of compensation; form ....K. s.1725 28:206 July 31, 1894 Salaries to be paid by one-half of; limit 34:101 Apr. 5, 1906 Salaries paid from, at President directs e. s. 1703 NAVAL SUPPLIES Certificates that paymasters' purchases made at ruling market prices E. s. 3723 SALARIES Aliens not entitled to compensation for service in office mentioned in R. S. 1675 r. s. 1744 Allowance during instructions prohibited e. s. 1740 Fees, payment from, as President directs E. s. 1703 Fees, payment by one-half of ; limit 34 : 101 Apr. 5, 1906 CONSULAR COURTS ACCOUNTS E. 8. 4120 AID OF LOCAL AUTHORITIES E. s. 4100 APPEALS to Circuit Court for California E. s. 4093-4096 to Ministers Powers of ministers prescribed E. s. 4091 in China and Japan; amount between $500 and $2,500 E. s. 4092 from Consul 's decisions E. s. 4089 ; 4105 ; 4109 on Difference of opinion in consular court, e. s. 4106; 4107 ASSOCIATES IN TRIAL Civil cases ; number, selection, duties E. s. 4107 Criminal cases; concurrence with consul makes . . decision final; exceptions e. s. 4106 Criminal cases; concurrence with consul, when necessary to conviction E. s. 4102 Criminal cases; number; to be citizens of United States K. s. 4106 BAIL BONDS b. s. 4117 in CHINA Establishment of United States Court 34 : 8 14 June 30, 1906 Opium, prosecutions for trading in 24:409 Feb. 23, 1887 COMPROMISE OF SUITS E. s. 4098 CONTEMPTS B, S. 4104 DECREES, See below, this title, Regulations ESTABLISHMENT E. s. 4083 EVIDENCE, TAKING OF r. s. 4097 EXTENSION OF LAWS R. S. Title XL VII extended to certain named countries u. g. 4125-4127 R. 8. Title XL VII, future extension to other countries ,.,.,,,,,,, e. s, 4129 669 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR COVELTS— Continued EXTENSION OF LAWS— Continued R. S. Title XL VII further extended; future extension of same 20 : 131 June 14, 1878 FEES R. S. 4117; 4120 FELONIES Jurisdiction of ministers to try cases of B. s. 4090 ; 4109 INSURRECTION Jurisdiction of ministers to tiy cases of R. s. 4090; 4109 Punishment to be death; conviction of less of- fense lawful R. s. 4102 JUDGMENTS Appeals from, See above, this title, Appeals Consul to give when sitting with associates . . . .E. s. 4106;4107 JURISDICTION Civil cases; treaty provision; contracts; pro- viso E. s. 4085 of Consul sitting alone in criminal cases when final E. s. 4089 ; 4105 Criminal cases; power to try, sentence and is- sue process E. s. 4084 ; 4090 Law to exercise and enforce defined E. s. 4086 of Minister exercised in any place in the coun- try E. s. 4108 of Minister, Secretary of State to exercise, if no minister in country E. S. 4128 of Minister, when appellate and when original. .E. s. 4109 in uncivilized countries in civil and criminal cases E. s. 4088 LAW APPLICABLE E. s. 4086 MARSHALS Appointment, number, fees and salary E. s. 4111 Bond, approval and disposal E. S. 4113 Bond, production of original on plea of non est factum E. s. 4115 Bond, suits may be brought on copy; how copy obtained E. S. 4114 Process against, to be executed by another per- son E. s 4116 Process, execution and return of E. s. 4112 MURDER Jurisdiction of ministers to try cases of E. s. 4090; 4109 Punishment to be death; conviction of less of- fense lawful E. s. 4102 NEW TRIALS, RLT.ES FOR E. s. 4091 OPINIONS Civil cases; appeal to minister on difference in E. s. 4107 Criminal cases; appeal to minister on differ- ence in R, S. 4106 670 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR COJJTiTS— Continued PKISONS AND PRISONERS Keeping and feeding prisoners; maximum al- lowance, items 23 :234 July 7,1884 84:295 June 16, 1906 34:925Feb. 22, 1907 Keeping and feeding prisoners; maximum al- lowance, self-supporting prisoners 23 :330 Feb. 25, 1885 24:116 July 1,1886 24:486 Mar. 3, 1887 25:255 July 11, 1888 25 : 704 Feb. 26, 1889 26:281 July 14, 1890 26:1061Mar. .3, 1891 27:233 July 16, 1892 27:506Mar. 1,1893 28:150 July 26, 1894 28:824Mar. 2, 1895 29:37Feb. 27, 1896 29:589Feb. 20, 1897 80: 272 Mar. 9, 1898 30:832Feb. 9, 1899 31:70Apr. 4, 1900 31:893Mar. 2, 1901 82:87Mar. 22, 1902 32:819Feb. 9, 1903 33:79Mar. 12, 1904 33:927Mar. 3, 1905 President authorized to make certain allow- ances for E. s. 4121-4123 Secretary of State authorized to make certain allowance for R. S. 4124 Transportation, payment of cost of 31 : 1450 Mar. 3, 1901 Transportation to place where suitable jail . . . .31: 1450 Mar. 3, 1901 Transportation by State Department agent. .. .31:1450 Mar. 3, 1901 PROCEDURE E. S. 4117 PROCESS Execution and return of by marshal R. s. 4112 Execution, return, etc., minister to make rules for R. s. 4117 Issue by ministers authorized E. s. 4091 against Marshals, execution by another E. s. 4116 PUNISHMENTS in Capital cases on minister 's warrant ; when delay permissible E. s. 4103 in Criminal cases; when decision of consul sit- ting alone is final E. s. 4089 ; 4105 Manner prescribed; severity according to mag- nitude of offense , B. s. 4101 671 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR COURTS— Con ^in wed KEBELLION Punishment to be death; conviction of less of- fense lawful E. 8. 4102 KEFERENCE OF SUITS E. s. 4098 REGULATIONS On a particular subject, see throughout this title Congress may annul or modify K. s. 4118 ; 4119 as Law, in default of other law applicable . . . . B. s. 4086 Ministers to submit to consuls for approval. . . .R. S. 4118 by Ministers with advice of consuls E. s. 4117 Publication necessary to give effect E. s. 4118 Transmitted to Secretary of State after publi- cation R. S. 4119 RESPONSIBILITY OF OFFICERS E. s. 4110 SETTLEMENT OF CRIMINAL CASES Allowed when case not of heinous nature E. S. 4099 WITNESSES Ministers to make rules as to examination of . . .E. s. 4117 CONSULAR SERVICE ACCOUNTS See also below, this title, Repoets and Retuens Auditor for State and Other Departments to examine 28 :207 July 31, 1894 of Fees for judicial services to be kept and reported E. s. 4120 of Fees; verification, false swearing punished as perjury B. s. 1728 ; 1729 ; 1747 Regulations may be made by President E. s. 1752 of Seamen 's extra wages to Treasury b. s. 4584 ADMINISTRATORS, GUARDIANS, ETC., AP- POINTMENT AS 32:546,547 June 30, 1908 AGENTS See CoMMEECiAL Agents See CoNSULAB Agents ALLOWANCE TO WIDOW OR HEIRS OF DE- CEASED OFFICER R. s. 1749 APPLICATION OF PROVISIONS e. s. 1689 ARMY OFFICERS Pay of certain retired not withheld because oc- cupying consular positions 26:872 Mar. 3, 1891 Position vacated by appointment in consular service E. S. 1223 BANKRUPTCY PROCEEDINGS, OATHS IN .... 30:552 July 1, 1898 BONDS as Administrators, etc., under foreign states; penalty; suit on 32:546 June 30, 1902 Neglect of duty, suit for E. S. 1735 President may require of vice or deputy of- ficers 34:101 Apr. 5, 1906 672 INDEX ANALYSIS OF FEDERAL STATUTES CONSUIAR SERVICE— Corthnwed CERTIFICATES Attestation of statements of merchandise con- signed for sale 26:135 June 10, 1890 Chinese extension of time to return 25:477 Sept. 13, 1888 of Chinese identity 23 : 117 June 5, 1884 25:476Sept. 13, 1888 Drawbacks, certification to secure ; fees B. s. 3045 ; 3046 Extradition, authentication of foreign docu- ments E. S. 5271 19:59 June 19, 1876 22:216Aug. 3, 1882 False certificate to invoices or other papers; penalty E. s. 5442 False certificate that property owner United States citizen ; penalty E. s. 1737 for Goods from adjacent countries, restricted .E. s. 1717; 2861 to Invoices, See below, this title, Invoices of Marriage ; consular officer 's duty ; contents E. s. 4082 Patents, authority of foreign executor, etc 32 : 1227 Mar.3, 1903 Patents, authority of persons administering oaths 32 : 1226 Mar. 3, 1903 Prisoners in consular prisons, inability to sup- port self 23 :330 Feb. 25, 1885 24:116 July 1,1886 24:486Mar. 3, 1887 25:255 July 11, 1888 25:704Feb. 26, 1889 26:281 July 14, 1890 26:1061Mar. 3, 1891 27:233 July 16, 1892 27:506Mar. 1,1893 28:150 July 26, 1894 28:824Mar. 2, 1895 29:37Feb. 27, 1896 29:589Feb. 20, 1897 30:272Mar. 9, 1898 30:832Feb. 9, 1899 31: 70 Apr. 4, 1900 31:893Mar. 2, 1901 32:87 Mar.22, 1902 32:819Feb. 9, 1903 33:79Mar. 12, 1904 33:927Mar. 3, 1905 Trademarks, authority of foreign officers tak- ing oaths 33 :725 Feb. 20, 1905 CHANGE OF 6EADE E. s. 1690 CLERKS Appointment of thirteen authorized; salary, etc E. s. 1704 673 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SERVICE— Co«fjnue(Z CLEKKS — Continued Examination prescribed R. S. 1705 Eemoval; cause to be stated to Congress E. s. 1705 Salary after five years' service, $1,200 18 :70 June 11,1874 Salary ; rate of increase, maxiomm 34 : 923 Feb. 22, 1907 COi[MERCIAL AGENCIES. See Commercial Agencies COMMERCIAL AGENTS. -See Commercial Agents COMPENSATION Absence, salaries not allowed during; sickness an exception 18:77 June 17, 1874 Absence with salaries not beyond sixty days; exception R. s. 1742 Aliens not entitled to compensation for ser- vice in office mentioned in R. S. 1675 E. s. 1744 Diplomatic functions, performance of E. S. 1739 Expenditures in excess of salary and fees pro- hibited 23 : 237 July 7, 1884 Extra, when prohibited R. s. 1743 Fees, See heloxv, this title, Fees Salaries to be sole; exception 34:101 Apr. 5, 1906 Salaries of consular officers not citizens, how paid 27 : 232 July 16, 1892 27:504Mar. 1,1893 28:149 July 26, 1894 28:823Mar. 2, 1895 29:36Feb. 27, 1896 29:588Feb. 20, 1897 30:271Mar. 9, 1898 30:831 Feb. 9, 1899 31:69 Apr. 4, 1900 31:892Mar. 2, 1901 32:86Mar. 22, 1902 32:818Feb. 9, 1903 33:78Mar. 12, 1904 CONSULAR AGENCIES. See Consular Agencies CONSULAR AGENTS. See Consular Agents CONSULAR COURTS. See Consular Courts CONSULAR PUPILS Absence from post; limit of ten days without permission 18:77 June 17,1874 CONSULATES. .9ee Consulates CONSULATES-GENERAL. See Consulates-Gen- eral CONSULS. See Consuls CONSULS-GENERAL. See Consuls-General DEFINITIONS "Consul," as used in R. S. Title XL VII, in- cludes consul-general, consul or vice-consul . .R. s. 4130 19:2Feb. 1,1876 674 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAE SE'RYICE— Continued DEFINITION— Continued "Consul," as used in R. S. Title XL VII, ia- cludes vice-consul-general B. s. 2ed 4130 19:2Feb. 1,1876 of Oflficial designations employed in K, S. Title XVIII K. 8. 1674 Provisions of R. 8. Title XVIII applicable to particular class of officers to apply to other classes B. s. 1689 DEPOSITIONS, TAKING OFF E. s. 1750 DEPUTY CONSULS. See Consuls DEPUTY CONSULS GENERAL. See Consuls- General DIPLOMATIC FUNCTIONS, PERFORMANCE OF a. s. 1738 DISABILITIES Administrators, guardians, etc., in foreign states, cannot act without bond as 32 : 546 June 30, 1902 Certain correspondence prohibited B. s. 1751 18: 77 June 17, 1874 Certain officers in Schedule B not to transact business E. s. 1699 Diplomatic officers, acting as in certain cases . .B. s. 1738 Holding different consulates, etc., forbidden . . . B. s. 1691 Officers having salary exceeding $1,000 not to transact business, practice law, etc B. s. 1700 34:101 Apr. 5,1906 Presents and titles, receiving from foreign gov- ernment B. s. 1751 18:77 June 17, 1874 President may extend prohibition against transacting business B. s. 1700 34:101 Apr.5, 1906 Profit from care of seamen, not to make; ex- ceptions E. s. 1719 Recommendations to foreign governments pro- hibited B. s. 1751 18:77 June 17, 1874 DOCUMENTARY STAMPS 34:102 Apr. 5, 1906 ESTATES OF DECEDENTS Administrators of foreign estates; bonds, breach of trust ; penalty 32 : 546 June 30, 1902 Duty of consuls and vice-consuls as to B. S. 1709-1711 ESTIMATES for consulates, manner of making 33 : 1214 Mar. 3, 1905 Entire amount required to be included in 22 : 133 July 1, 1882 FEES See also above, this title, Compensation Accounts, See above, this title, Accounts Bills of health, for furnishing 21 : 5 June 2, 1879 27:450Feb. 15, 1893 675 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SEEVICE—Confmwcd FEES — Continued Coin, collection in domestic, or equivalent . . . . E. s. 1746 Copy of rates annexed to clearance of vessel from U. S. for foreign port E. s. 4207 Discharged seamen, no profit to be made from .r. s. 1719 Exacting excessive ; penalty E. s. 1723 Expenditures to be authorized by law when paid solely by 23 :237 July 7, 1884 Expenditures in excess of salary and fees pro- hibited 23 :237 July 7, 1884 for invoices, See below, this title, Invoices Judicial fees, accounts kept and reported E. s. 4120 Liability to United States for omission to col- lect E. s. 1724 Masters of vessels to be given statement of . . .23:56 June 26, 1884 Notarial acts, fees prescribed by President ... 34 : 101 Apr. 5, 1906 Omitting to collect; penalties on officers in Schedules B and C e. s. 1724 Paid into Treasury ; exception 34 : 101 Apr. 5, 1906 Payment by masters or commanders of ves- sels E. s. 1718 Permanent annual appropriation to pay certain 23:56 June 26, 1884 Prescribed fees only to be collected e. s. 1745 Rates of fees to be posted E. s. 1731 Receipts to be given; service to be described in register E. s. 1726 ; 1727 Receipts, master to give copy to first collector .E. s. 4213 Registration ; manner E. S. 1727 Regulation by President E. s. 1745 Returns, See below, this title, Repoets and Retuens Revision by President authorized 20:273 Jan. 27, 1879 Secretary of State reports collections and tar- iff changes E. s. 208 of Vessels or seamen prohibited; equivalent paid from Treasury 23 :56 June 26, 1884 FOREIGN CONSULAR OFFICERS ABROAD. See FoEEioN Consular Officers Abroad FOREIGN CONSULAR OFFICERS IN UNITED STATES. See Foeeign Consulae Officees in United States HOSPITAL TAX, COLLECTION OF E. s. 4586 INTERPRETERS Absence from post; limit of ten days without permission e. S. 1741 18:77 June 17, 1874 Salaries, consuls or consuls-general cannot te- c«>ve 23 :233 July 7, 1884 23:329Feb. 25, 1885 Salaries, term during which payable; allow- ance E. s. 1740 676 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SE'RYICE— Continued INVOICES Apportionment of charges for general invoices. R. s. 2907 Certification, conditions prescribed B. S. 1715 Certification, penalty for false R. s. 5442 Consuls in adjacent countries, indorsement by R. s. 2856 Consul's duties with respect to quadruplicates 21:173 June 10,1880 Consul 's duties with respect to triplicates . . . . R. s. 2855 ; 2857 Consuls, verification by R. s. 2843 Declaration required to secure; contents 26:131 June 10, 1890 Destruction after period of five years author- ized 32 :854 Feb. 24, 1903 Fees for certification in British North Amer- ica R. s. 1721 Fees for certification prescribed by President .34:101 Apr. 5, 1906 Fees of consuls and commercial agents, $2.50 . . R. s. 2851 Fees, penalty for exacting excessive R. s. 1716 Fraudulent practices to be reported by consuls and commercial agents R. s. 2863 Eegistry of certification, etc R. S. 1727 Eequirement of proof; regulations R. s. 2862 JUDICIAL AUTHORITY See also Consular Courts in Certain countries R. s. 4083-4130 Extension ; future extension 20 : 131 June 14, 1878 LEAVE OF ABSENCE Limited to ten days without permission R. s. 1741 18:77 June 17, 1874 Salary r. s. 1742 LIST OF OFFICERS R. s. 208 MARRIAGES, SOLEMNIZATION OF R. 8. 4082 MARSHALS. See Consular Courts NATURALIZED PERSONS, NAMES OF RE- TURNED 34:601 June 29, 1906 NAVY OFFICERS Position vacated by appointment in consular service E. s. 1440 NOTARIAL ACTS Authorization of secretaries of legation and consular officers to perform R. s. 1750 Requirement of performance 34:101 Apr.5, 1906 OFFENSES For other offenses, See throughout this title i Accepting fiduciary office in foreign state without giving bond ; penalty 32 : 547 June 30, 1902 Breach of trust as administrator, etc., in for- eign state ; penalty 32 : 547 June 30, 1902 Embezlement, what deemed ; penalty R. s. 1734 30:771Dec. 21, 1898 Neglect of duty, etc, ; penalty R. s. 1735 PASSPORTS, REGISTRY OF E. s. 1727 677 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SERYlCIr— Continued PENSION CLAIMANTS, OATHS TO 57:272 July 26, 1892 PRESENTS PROHIBITED E. s. 1751 18:77 June 17, 1874 PRISONS AND PRISONERS. See Consular COUBTS QUARANTINE REGULATIONS Bills of health, fees for furnishing 21 : 5 June 2, 1879 27:450Feb. 15, 1893 Bills of health for vessels from any ports 27:450 Feb. 15, 1893 Bills of health for vessels from infected ports .21:5 June 2, 1879 Enforcement of regulations for vessels from infected ports 21 :6 June 2, 1879 Reports of vessels sailing from infected ports .20:38 Apr. 29, 1878 Weekly reports on sanitary condition of ports 20:38 Apr. 29, 1878 21:6 June 2, 1879 27:451Feb. 15, 1893 REGULATIONS Consular Regulations, rewriting provided for . .28:103 July 16, 1894 33:928 Mar. 3, 1905 34:925Feb. 22, 1907 President may make E. s. 1695 ; 1752 REORGANIZATION 34:99 Apr. 5, 1906 REPORTS AND RETURNS of Agricultural products and implements 25:186, 187 June 18, 1888 Commercial reports by consuls, commercial agents, etc e. s. 1712 ; 1713 25:186 June 18, 1888 Discussions of political, religious, etc., ques- tions not to be published 23 :235 July 7, 1884 23:324Feb. 25, 1885 of Documentary stamps quarterly 34:102 Apr. 5, 1906 of Exports and imports, by consuls 20: 273 Jan. 27, 1879 of Fees for all services; exception 34:101 Apr. 5, 1906 of Fees by certain oflBcers e. s. 1725 of Fees; form prescribed by Comptroller of the Treasury 28 :206 July 31, 1894 of Fees; form prescribed by Secretary of State e. s. 1725 of Fees; oath on rendering account, penalty ..e. s. 1728 Infected ports, vessels sailing from 20:38 Apr. 29, 1878 Lists of shipped and discharged seamen, ves- sels, cargoes, etc E. s. 1708 of Markets for domestic goods, by consuls . . . .20:273 Jan. 27, 1879 Measure, weight and value, how expressed in reports 28 : 150 July 26, 1894 28:825Mar. 2, 1895 29 : 38 Feb. 27, 1896 29:590Feb. 20, 1897 30:272 Mar. 9, 1898 30:833 Feb. 9, 1899 31:71 Apr. 4, 1900 678 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SERVICE— CoHh)!uc^ REPORTS AND RETURNS— Co7ifMiMed Measure, weight and value — Continued 31:894 Mar, 2, 1901 32:87Mar. 22, 1902 32: 812 Feb. 9, 1903 Number of consular reports printed; distribu- tion 28 :616 Jan. 12, 1895 Ports, weekly on sanitary conditions of 20:38 Apr. 29, 1878 21: 6 June 2, 1879 27 : 451 Feb. 15, 1893 Prices current to be furnished as required .... E. s. 1713 20:98 June 4, 1878 25:186 June 18, 1888 Regulations may be made by President E. s. 1752 Revenue, consuls to report fraudulent practices on E. s. 2863 of Services to American vessels and seamen .. .23:56 June 26, 1884 Statistics for Department of Commerce and Labor 32:827 Feb. 14, 1903 of Wages in foreign countries to be made an- nually by consuls 20:274 Jan. 27, 1879 SALARIES, See above, this title, Compensation SCHEDULES E. s. 1690 34:99Apr. 5, 1906 SEAMEN Comanding officer of U. S. fleet, vessel, etc., when on high seas or in foreign port may exercise powers of consul over E, s. 1433 Compensation for services to, payment from Treasury 23 :56 June 26, 1884 Deceased seamen, disposal of effects of E. s. 4539 ; 4541 29:689Mar. 3, 1897 Deserting seamen, reclamation and discharge . . E. s. 4600 23:55 June 26, 1884 30:761Dec. 21, 1898 Discharge and payment of wages E. s. 4580 23:54, 55 June 26, 1884 Discharge, collection of extra wages on e. s. 4580; 4581 2,3:54 June 26, 1884 Discharge without extra wages E. s. 4583 Discharge, inquiry on; wages and transporta- tion 30:760 Dec. 21, 1898 Discharge when vessel unseaworthy E. s. 4561 23:54 June 26, 1884 30:758Dec. 21, 1898 Discharge when voyage wrongfully prolonged . . 23 :54 June 26, 1884 Discharge seamen, no profit from E. S. 1719 Expenses paid out of wages E. s. 4581 23:55 June 26, 1884 25:80 Apr. 4, 1888 Fees for service to, prohibited 23 :56 June 26, 1884 679 INDEX ANALYSIS OF FEDERAL STATUTES CONSULAR SE^YlCEr— Continued SEAMEN — Continued Indorsement on articles when vessel sold abroad30:759 Dec. 21, 1898 Liability to United States for not collecting wages of £• s. 4581 23:55 June 26, 1884 30:759Dec. 21, 1898 Lists and returns of K. s. 1708 Neglect of duty to ; penalty K. s. 1736 Keturn, provisions for E. s. 4577 : 4578 23:55 June 26, 1884 Shipment of R- S. 4517 ; 4518 Shipment, authorized oflficers only may receive fees for 23 :55 June 26, 1884 Ships ' stores examined on complaint of E. s. 4565 Wages, disposal of extra R. s. 4584 STATISTICS FOR DEPARTMENT OF COM- MERCE AND LABOR 33 :827 Feb. 14, 1903 TRANSIT Allowance for time in making E. S. 1740 Allowance of time restricted to established period 18 :70 June 11, 1874 Allowance to widow or heirs of deceased con- sular officer E. s. 1749 Secretary of State to determine and publish time required for each post 18 :70 June 11, 1874 VESSELS ' PAPERS, RETENTION OF E. s. 1718 VICE-COMMERCIAL AGENTS. See Commercial Agents VICE-CONSULATES. See Consulates VICE-CONSULS. See Consuls VICE-CONSULS-GENERAL. See Consuls-Gen- eral CONSTILATES See also Commercial Agencies Bee also Consular Agencies Clerks receiving $1,000 or more must be U. S. cit- izens 34 : 101 Apr. 5, 1906 Estimates for, manner of making 33 : 1214 Mar. 3, 1905 Extent of territory embraced, President may de- fine r. s. 1695 Fees for official services prescribed by President . . R. s. 1745 Holding office at different consulates prohibited to consuls-general and consuls R. s. 1691 Inspectors, five consuls-general at large as 34:100 Apr. 5, 1906 Inspectors, provisions applicable to bonds 34:101 Apr. 5, 1906 Invoif-es filed in may be destroyed after five years . .32:854 Feb. 24, 1903 Medical officers, detail authorized 27 :450 Feb. 15, 1893 Medical officers, detail of not more than six 21 : 5 June 21, 1879 Medical officers to give bills of health for vessels from any ports; fees 27 :450 Feb. 15, 1893 680 INDEX ANALYSIS OF FEDERAL STATUTES COKSTTLATES — Continued Medical officers to give bills of health for vessels from infected porta ; fees 21 : 5 June 2, 1879 Principal officers entitled to certain fees collected by subordinates E. s. 1703 Public documents for E. s. 504 Stationery, books, etc., President to provide for . . . e. s. 1748 Suspension of officers if business not properly con- ducted 34:100 Apr. 5, 1906 Vice-consulates, excess of fees above $1,000 re- ceived at E. s. 1733 Vice-consulates, expenses of; allowance limited ....E. s. 1696 CONSULATES-GENERAL Clerks receiving $1,000 or more must be United States citizens 34 : 101 Apr, 5, 1906 Suspension of officers if business not properly con- ducted 34:100 Apr. 5, 1906 CONSULS See also Consulae Seevice ABSENCE FEOM POST Limit of ten days without permission E. s. 1741 18:77 June 17, 1874 ACCOUNTS OF FEES E. s. 1729; 1747 APPOINTMENT in Place of commercial agents E. s. 1690 as Vice and deputy officers; limit, one year . . .34:100 Apr. 5, 1906 BONDS Conditions ; amount E. s. 1697 ; 1699 ; 1700 30:770Dec. 21, 1898 34:101Apr. 5, 1906 Deposited with Secretary of the Treasury E. s. 1697 30:770Dec. 21, 1898 Suits on; procedure, service of process, appear- ance 30: 770, 771 Dec. 21, 1898 Suits on, for transacting business E. s. 1701 DEFINITION Full permanent officer as distinguished from subordinate E. s. 1674 Use of term in E. S. Title XL VII E. s. 4130 19:2Feb. 1,1876 DEPUTY CONSULS Additional compensation for acting as consuls .34:101 Apr. 5, 1906 Appointment regulated by President e. s. 1695 Appointment ; temporary service of consuls as . 34 : 100 Apr. 5, 1906 Bonds may be required by President e. s. 1700 Definition r. S. 1674 Salary, allowance during instructions prohib- ited R. S. 1740 Transacting business, when President may for- bid K, s. 1700 681 INDEX ANALYSIS OF FEDERAL STATUTES CONSULS — Continued DISABILITIES Holding different consulates, etc., forbidden ..R. s. 1691 Sccretariea' or interpreters' salaries, cannot receive 23 : 233 July 7, 1884 23:329Feb. 25, 1885 Transacting business, legal practice, etc., when forbidden R- s. 1699 ; 1700 34:101Apr. 5, 1906 Transacting business ; penalty R- s. 1701 FEES Accounts, See above, this title, Accounts of Fees Canadian ports, vessels touching at; when ex- empt from R- s. 4222 Excess received above $1,000 held subject to Secretary of the Treasury 's order R- s. 1733 Expenditure of fees when paid both in salary and in fees 23:237 July 7, 1884 Foreign moneys to be received for, in Canada . R- s. 1722 Invoices, verification of R- s. 2851 Omitting to collect ; penalty R- s. 1724 Eestriction on collection from vessels making weekly or monthly trips R- S. 1720 Eeturns when part of compensation; form . . . R. s. 1725 28:206 July 31, 1894 Salaries determined by R- s. 1702 Schedules B and C, consuls not in; excess over $2,500 held subject to Secretary of the Treasury 's order Schedules B and C, consuls not in ; paid from R. s. 1732 fees received JUDICIAL AUTHORITY. See Consular See- r. s. 1730 VICE — .Judicial Authority OFFENSES False certification ; penalty False certification of property; penalty for R. s. 5442 making Fees, omitting to collect; penalty E. s. 1737 Neglect of duty to seamen ; penalty R. s. 1724 Transacting business ; penalty E. S. 1736 OFFICE RENT R. s. 1701 POWERS AND DUTIES R. s. 1706 Acting as vice and deputy officers; limit Commanding officers may have consuls' powers 34:100 Apr. 5, 1906 over seamen Coolies, certificate of voluntary immigration . . R. S. 1433 Coolies, inquiry if immoral contract exists . . . R. S. 2162 Court records, certifying service of notice to 18:477 Mar. 3, 1875 ■upply 20 : 277 Jan. 31, 1879 Estates of decedents i^.s. 170P ; 1710 682 INDEX ANALYSIS OF FEDERAL STATUTES CONSULS — Continued POWERS AND DUTIES— Continued Hearing protests or declarations E. S. 1707 Invoices, duties with respect to quadruplicates ^f 21 : 173 June 10, 1880 Invoices, duties with respect to triplicates of . . k. s. 2855; 2857 Invoices, indorsement in adjacent countries ..b. s. 2856 Invoices produced to consuls 26:131June 10, 1890 Invoices, verification of R- s. 2843 Naval supplies purchased by paymasters, cer- tificates as to ruling market prices R. S. 3723 Oaths to patent or copyright applicants, ad- ministration of B- s. 4892 32: 1226 Mar. 3, 1903 Postage on letters for United States; payment, repayment B- s. 4014 Privateer pension fund, charge of ; payment . . r. s. 4759 ; 4760 Seamen, provisions for return of R. 8. 4577 ; 4578 23:55 June 26, 1884 Ship's papers, delivery of to master; condi- tions R- S. 4309 Specification of, how construed R. S. 1714 Suits to recover penalty for failure to deposit papers R- S- 4310 Trademarks, verifications of applications 33:725 Feb. 20, 1905 "Vessels, appointment of inspectors to determine seaworthiness . . . . i R. s. 4559 30:757 Dec. 21, 1898 Vessels, care of stranded R. s. 4238 Vessels, determination of seaworthiness B. s. 4560 RECORDS AS EVIDENCE r. s. 896 REPORTS AND RETURNS of Agricultural statistics monthly 25 : 186 June 18, 1888 Commercial reports to be made when required . r. s. 1712 25:186 June 18, 1888 of Exports and imports ; contents 20 : 273 Jan. 27, 1879 of Fees, when part of compensation ; form . . . . R. s. 1725 28:206 July 31, 1894 of Markets for domestic goods 20 : 273 Jan. 27, 1879 Revenue, reports of fraudulent practices on . . . r. s. 2863 of Wages in foreign countries to be made an- nually 20 :274 Jan. 27, 1879 SALARIES Classification of Apr. 5, 1906 34 :99 Apr. 5, 1906 Expenditures of fees when paid both in salary and in fees 23 :237 July 7, 1884 Fees as determining R. s. 1702 Schedules B and C, if in R. s. 1690 Schedules B and C, if not in R. s. 1730 Tenn during which payable ; allowances , 9. S. 1740 683 INDEX ANALYSIS OF FEDERAL STATUTES COmSVLS— Continued SUITS AGAINST District courts have jurisdiction; exception . . . R. 8. 563 par. 17 SUSPENSION 34:100 Apr. 5, 1906 VICE-CONSULS Additional compensation for acting as consuls. 34:101 Apr. 5, 1906 Alien vice-consul temporarily acting as con- sul may receive compensation 18 :70 June 11, 1874 Appointment regulated by President B- s. 1695 Appointment ; temporary service of consuls as . 34 : 100 Apr. 5, 1906 Bonds; amount of, conditions E- s. 1698 30:771 Dec. 21, 1898 Bonds may be required by President R- s. 1700 Bonds, suits on; service of process, appearance, etc 30 :771 Dec. 21, 1898 "Consuls" to include, in K. S. Title XL VII . R. s. 4130 Definition K. S. 1674 District courts' jurisdiction of suits against; exception R. s. 563 par. 17 Estates of decedents, duties as to R- s. 1709; 1710 False certification ; penalty b- S. 5442 False certification of property, penalty for making E. s. 1737 Fees, accounting for K- S. 1729; 1747 Fees may be received in foreign moneys in Canada, rate e. s. 1722 Fees, omitting to collect ; penalty R- s. 1724 Fees ; returns when part of compensation, form R- s. 1725 28:206 July 31, 1894 Invoices, duties with respect to quadruplicates of 21 :173 June 10, 1880 Invoices, duties with respect to triplicates of . . R- s. 2855 ; 2857 Invoices, indorsement in adjacent coontries . . . R- s. 2856 Invoices produced to 26 : 131 June 10, 1890 Judicial authority. See Consular Service — Judicial Authority Powers and duties, construction of R- S. 1714 Protests and declarations may be heard by . . . R- s. 1707 Records, copies of in offices of as evidence . . . R. s. 896 Salaries not allowed during instructions R- s. 1740 Salaries prescribed by President B- S. 1703 Salaries, from what paid R. s. 1695 Seamen, provisions to be made for return of . . R. S. 4577 ; 4578 23:55 June 26, 1884 Ship's papers, delivery of to master; condi- tions R. s. 4309 Suits to recover penalty for failure to deposit papers R. s. 4310 Transacting business, when President may for- bid R. 8. 1700 VesselB, care of strandecj , , . , . R. s, 4238 684 INDEX ANALYSIS OF FEDERAL STATUTES CONSULS-GENERAL See also Consular Service ABSENCE FROM POST Limit of ten days without permission r. s. 1741 18:77 June 17, 1874 ACCOUNTS OF FEES B. s. 1747 APPOINTMENT in Place of consuls or conunercial agents R. s. 1690 BONDS Conditions ; amount B. S. 1697 ; 1699 30:770 Dec. 21, 1898 34:101 Apr. 5, 1906 Deposited with Secretaiy of the Treasury R. s. 1697 30:770Dec. 21, 1898 Suits on; procedure, service of process, appear- ance 30 :770, 771 Dec. 21, 1898 Suits on, for transacting busine»8 R. s. 1701 DEFINITION R- s- 1674 ; 4130 DEPUTY CONSULS-GENERAL Additional compensation for acting as consuls- general 34:101 Apr. 5, 1906 Appointment ; temporary service of consuls as . 34 : 100 Apr. 5, 1906 DISABILITIES Holding different consulates, etc, forbidden ..e. s. 1691 Secretaries' or interpreters' salaries, cannot receive 23 :233 July 7, 1884 23:3?7>ointment of, in sundry places . . .620, Not to transact or be interested in other business 620, Pay, when to commence and cease 425 22 594 22 325 23 254 254 254 255 256 256 257 256 79 690 Year. 1901-1903 1901-1903 1901-1903 1881-1883 1881-1883 1883-1885 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 1789-1799 394 5 1835-1845 839 9 1845-1851 863 9 1845-1851 80 9 1845-1851 280 9 1845-1851 468 9 1845-1851 945 9 1845-1851 916 9 1845-1851 896 9 1845-1851 980 9 1845-1851 621 10 1851-1855 624 10 1851-1855 623 10 1851-1855 710 CONSOLIDATED INDEX TO STATUTES CONSULS — Continued Page. Vol. Year. Absence of, from their posts 623 10 1851-1855 Only resident citizens to be appointed, except, etc. 623 10 1851-1855 Location of consulates in central places 623 10 1851-1855 Office hours 623 10 1851-1855 Bonds of 623 10 1851-1855 Fees of 623, 624 10 1851-1855 How to apply for an exequatur 623 10 1851-1855 Power respecting passports 624 10 1851-1855 Not entitled to commissions 624 10 1851-1855 Duties as to seamen 624,625,626 10 1851-1855 Eeturns by 625 10 1851-1855 Penalties on 625 10 1851-1855 Liable in damages for neglect of duty 625 10 1851-1855 Duty of, when citizens die abroad 625, 626 10 1851-1855 Record books 626 10 1851-1855 Archives 623, 626 10 1851-1855 Clerk hire and office rent not allowed 626 10 1851-1855 And commercial agents (see Commercial Agents) . ... 10 1851-1855 Appropriations for 659 10 1851-1855 Stipulations respecting, in treaties with Argentine Con- federation 1010 10 1851-1855 Bremen 961 10 1851-1855 Costa Rica 922 10 1851-1855 Prance 992 10 1851-1855 Guatemala 886 10 1851-1855 Hamburg 961 10 1851-1855 Netherlands 1150 10 1851-1855 Lubeck 961 10 1851-1855 New Granada 900 10 1851-1855 Peru 943 10 1851-1855 San Salvador 897 10 1851-1855 General act establishing salaries of 52 11 1855-1859 Salaries of, at places in the following countries and their dependences — Austria 53, 54 11 1855-1859 Barbary States 54 11 1855-1859 Bavaria 53 11 1855-1859 Belgium 53 11 1855-1859 Bolivia 54 11 1855-1859 Brazil 54 11 1855-1859 Buenos Ayres 54 11 1855-1859 Chile 54 11 1855-1859 China 53 11 1855-1859 Denmark 53, 54 11 1855-1859 Ecuador 54 11 1855-1859 Fiji Islands 54 11 1855-1859 France 53 11 1855-1859 Great Britain 53, 54 11 1855-1859 Greece 54 11 1855-1859 711 CONSOLIDATED INDEX TO STATUTES CONSULS — Continued Salaries of, in — Continued. Hanseatic and Free CiticB Honduras Mexico Muscat Netherlands New Granada New Zealand Nicaragua Peru Portugal Prussia Eussia Sandwich Islands Sardinia Saxony Sicilies ^ Society Islands Spain Switzerland Turkey Tuscany Urguay Venezuela Wurttemberg In all other places to be paid by fees When salary is to commence and cease Pay of, when performing diplomatic functions .... Certain, prohibited from mercantile business Bond to that effect Penalty for violation of Interpreters to, in China Bonds of 55, President may define limits of consulates May provide for appointment of vice-consuls, etc Fees of, how established Copy of tariff of, to be annexed to clearances . . . To be posted in consular offices Receipts for, to be given In what coinage payable Penalty for extortion as to Par>ers may he detained until payment of To be accounted for Accounts of, how kept and rendered Absence from post, regulations as to Deduction from j)ay therefor Correspondence on public affairs abroad, forbidden . . . BecommendatioDB to or acceptance of office, abroad, forbidden Page. Vol. Tear. 54 ] 11 1855-1859 54 1 LI 1855-1859 54 ] LI 1855-1859 54 ] LI 1855-1859 53 54 ] LI 1855-1859 54 ] LI 1855-1859 54 ] LI 1855-1859 54 1 LI 1855-1859 54 ] LI 1855-1859 53 54 ] LI 1855-1859 53 54 ] LI 1855-1859 53 ] LI 1855-1859 54 ] LI 1855-1859 53 54 ] LI 1855-1859 53 1 LI 1855-1859 53 1 LI 1855-1859 54 ] LI 1855-1859 53 1 LI 1855-1859 53 : LI 1855-1859 53 54 ] LI 1855-1859 53 ,54 ] LI 1855-1859 54 ] LI 1855-1859 54 ] 11 1855-1859 54 ] 11 1855-1859 55 ] LI 1855-1859 55 ,56 1 LI 1855-1859 56 : LI 1855-1859 55 ,57 : LI 1855-1859 55 ] 11 1855-1859 55 ] LI 1855-1859 55 ] LI 1855-1859 56 57 ] LI 1855-1859 57 ] LI 1855-1859 57 ] LI 1855-1859 57 ] LI 1855-1859 57 ] LI 1855-1859 58 ] LI 1855-1859 58 ] LI 1855-1859 63 ] LI 1855-1859 58 1 LI 1855-1859 63 ] LI 1855-1859 58 ] LI 1855-1859 58 59 1 59 ] LI 1855-1859 LI 1855-1859 59 ] LI 1855-1859 59 ] LI 1855-1859 59 1 LI 1855-1859 712 CONSOLIDATED INDEX TO kSTATUTES CONSULS— Contmued Page. Vol. Year. Being interested in boarding or supplying seamen, for- bidden 59 11 1855-1859 Commissions on wages, forbidden 59 11 1855-1859 Named in Schedules B and C to have no pay unless they are citizens 60 11 1855-1859 Contingencies for offices of 60 11 1855-1859 President may prescribe rules for business 60 11 1855-1859 Passports, rules as to 60, 61 11 1855-1859 May administer oaths 61 11 1855-1859 Act as notaries 61 11 1855-1859 Seamen, duties in case of desertion by or discharge of 62, 63 11 1855-1859 Certificates to invoices 63 11 1855-1859 To furnish prices current 63 11 1855-1859 Masters compelled to apply to, for consular services . . 63 11 1855-1859 Construction of act of 1856, chapter 127, respecting . . 64 11 1855-1859 Penalties on, for violation of duty 58, 64 11 1855-1859 Kepeal of parts of former acts 65 11 1855-1859 To procure and transmit commercial information ....60,139 11 1855-1859 Consuls-general may be appointed instead of 53 11 1855-1859 Appropriations for 12, 28 11 1855-1859 Provision authorizing pupils to, repealed 160 11 1855-1859 Eate of pay of 220 11 1855-1859 Of Spain at New Orleans, revocation of exequaturs of, in 1850, Proclamation No. 36 787 11 1855-1859 Of Great Britain, at New York, Philadelphia, and Cin- cinnati ; revocation of exequaturs of, in 1856, Proclamation Nos. 43, 44, 45 792, 793 11 1855-1859 Appropriations to pay salaries, etc., of 20, 21, 171, 335, 336, 639, 648 12 1859-1863 Of the United States, in China, Japan and Siam, to have certain judicial powers in addition to pow- ers imposed by treaties 72 12 1859-1863 As to crimes and misdemeanors 72 12 1859-1863 As to civil rights 73 12 1859-1863 Provisions of act in a certain degree extended to Tur- key 76 12 1859-1863 Also to Persia, Morocco, Muscat, Tripoli, and Tunis 76 12 1859-1863 Civil and criminal jurisdiction, how to be enforced ... 73 12 1859-1863 Forms of proceedings, etc., to be furnished by min- isters 73 12 1859-1863 Consuls may assent or dissent, and proceedings thereon 73 12 1859-1861 On complaint, etc., properly filed and authenticated, may issue warrant for arrest for offenses 74 12 1859-1863 Or upon facts within their own knowledge 74 12 1859-1863 May try, convict, and sentence offender 74 12 1859-1863 Punishment to be proportioned to offense 74, 75 12 1859-1863 To be either fijie or imprisonment, except, etc. ... 74, 75 12 1859-1863 713 CONSOLIDATED INDEX TO STATUTES CONSULS — Continued Page. Vol. Year. Power to punish for contempt 74 12 1859-1863 Jurisdiction of, without right of appeal, in civil and criminal cases 74 12 1859-1863 In civil cases arising under treaties 74 12 1859-1863 Jurisdiction of, with right of appeal 74 12 1859-1863 When may call to their assistance aid of not over four persons 74 12 1859-1863 Proceedings in such case 74 12 1859-1863 When may call in aid, in civil cases arising under treaties 74, 75 12 1859-1863 Proceedings in such cases 75 12 1859-1863 Evidence in all cases, civil and criminal, how to be taken 75 12 1859-1863 Objections to testimony, and rulings thereon, to be noted 75 12 1859-1863 May assent to settlement of certain criminal cases by parties 76 12 1859-1863 To favor settlement of civil cases by parties or by ar- bitration 76 12 1859-1863 May call on local authorities for aid 76 12 1859-1863 Meaning of word "consul" in this act 76 12 1859-1863 To be responsible to the United States for their diplo- matic and judicial conduct 76 12 1859-1863 When and who to act in the absence of minister 76 12 1859-1863 What expenses may be allowed in the adjustment of their accounts 77 12 1859-1863 Authority of, and of commercial agents in uncivilized countries 78,79 12 1859-1863 Effect of marriages abroad solemnized by 79 12 1859-1863 Certificate thereof to be returned to Department of State 79 12 1859-1863 What to specify 79 12 1859-1863 Salaries of, at Kanagawa and Nagasaki, established . . 171 12 1859-1863 May be appointed for certain foreign ports, during present insurrection 285 12 1859-1863 When employment to cease 285 12 1859-1863 Pay not to exceed $1,500 per annum 285 12 1859-1863 Pay of certain, in foreign ports, may be increased . . . 285 12 1859-1863 But for not longer than, etc 285 12 1859-1863 Salaries of, at Bremen, Newcastle-on-Tyne, Pictou, Nova Scotia, Port Mahon, and Swatow, estab- lished 336 12 1859-1863 Not to be appointed except to, etc 336 12 1859-1863 Nor their compensation increased 336 12 1859-1863 Increased salaries to certain 336 12 1859-1863 To report fraudulent practices upon the revenue, etc. . 559 12 1859-1863 Vice-consuls, or commercial agents of the United States abroad, duties of, as to invoices of imports of foreign goods (see Frauds) 737, 738 12 1859-1863 714 CONSOLIDATED INDEX TO STATUTES CONSITLS — Continued Page. Vol. Year. One may be appointed at Cienfuegos 754 12 1859-1863 Of foreign countries, certain, not subject to income tax, when, etc 17, 305 13 1863-1865 Of certain foreign nations to have jurisdiction over certain controversies between officers and crews of vessels 121 13 1863-1865 Mode of exercising it 121 13 1863-1865 Appropriations for salaries of 138, 422 13 1863-1865 Salaries of certain, established 139 13 1863-1865 Of the United States in Belgium, attributions of 650 13 1863-1865 Appropriations for pay and expenses of ...224,225,413,414 14 1865-1867 Pay of, established at Barcelona 225 14 1865-1867 Chemnitz 414 14 1865-1867 Hankow 225 14 1865-1867 Lisbon 225 14 1865-1867 Mahe 414 14 1865-1867 Malta 225 14 1865-1867 Munich 414 14 1865-1867 Nantes 225 14 1865-1867 Nice 225 14 1865-1867 Prince Edward Island 225 14 1865-1867 Quebec 414 14 1865-1867 Kome 414 14 1865-1867 St. Catherines (Brazil) 225 14 1865-1867 St. Johns (Canada East) 225 14 1865-1867 Santa Cruz 225 14 1865-1867 Spezzia 414 14 1865-1867 Tampico 225 14 1865-1867 Tees of certain, to be accounted for to Secretary of Treasury 226 14 1865-1867 Excess of over $2,500 a year above, etc., to be paid to Secretary of Treasury 226 14 1865-1867 No pay to any, not a native or naturalized citizen of the United States 414 14 1865-1867 At Quebec, compensation to 312 14 1865-1867 Compensation of, established 414 14 1865-1867 In Egypt, certain judicial powers given to 322 14 1865-1867 Not to exact tonnage fees on United States vessels touching at ports in Canada, unless, etc 260 15 1867-1869 Duly certified copies of official papers, etc., in office of, to be admissible in evidence in United States courts 266 15 1867-1869 Privileges of, as provided in the treaty with Mada- gascar 491 15 1867-1869 With Nicaragua 555 15 1867-1869 At Panama to be mail agent 1119 16 1869-1871 His duties 1119 16 1869-1871 At Matamoras, Mexico, salary of, established 12 17 1871-1873 One authorized at Santarem, Brazil , 282 17 18714873 715 CONSOLIDATED INDEX TO STATUTES CONSULS— Coniinwed Page. Vol. Year. Salary of at Tientsin, China, established 120 17 1871-1873 Compensation to be allowed certain, for extraordinary services during the late war in Europe 123 17 1871-1873 Duty of, as to effects of seamen and apprentices dying abroad 272 17 1871-1873 In foreign countries, to pay foreign postage on letters for the United States detained in foreign ports 317 17 1871-1873 At Havre and La Eochelle, additional compensation to, for extraordinary services during the late war in Europe 531 17 1871-1873 (See Diplomatic and Consular Officers) 18 1873-1875 Appropriation for salaries of 67, 322, 414 18 1873-1875 Transfer in accounts of State Department for salaries of 405 18 1873-1875 Compensation of 68 18 1873-1875 Annual allowance to certain, for clerk hire 70 18 1873-1875 At Vladivostock, Fayal, and Auckland exempted from prohibition to engage in business 486 18 1873-1875 (See Consular Officers) 19 1875-1877 Appropriations for salaries of 171, 233 19 1875-1877 Meaning of the word, as used in Eevised Statutes, title 47, defined 2 19 1875-1877 Appropriations for salaries of 93, 268 20 1877-1879 For deficiencies in 115 20 1877-1879 Clothed with judicial powers, subject to Revised Stat- utes, title 47 131 20 1877-1879 Shall make reports of exports, imports, etc 273 20 1877-1879 Of rates of wages 274 20 1877-1879 Convention with Italy concerning rights, etc., of 725 20 1877-1879 Appropriations for salaries of 135, 340 21 1879-1881 Deficiency appropriation for contingent expenses of . . 253 21 1879-1881 For salaries of 427 21 1879-1881 Not to receive salaries as secretaries or interpreters of legations 329 23 1883-1885 Appropriation for salaries 250, 700 25 1887-1889 Deficiency appropriation for salaries 27,566,602 25 1887-1889 Convention regulating rights, powers, and immunities of, in Zanzibar 1439 25 1887-1889 To pay exy^enBcs of discharged seamen from wages re- ceived 80 25 1887-1889 Deficiency from relief fund 80 25 1887-1889 To transmit monthly reports on agriculture 186 25 1887-1889 To furnish reports of prices of agricultural products, etc 186 25 1887-1889 To report on agricultural implements, pursuits, etc. . . . 187 25 1887-1889 Appropriation for instruction and transit pay 224, 497 27 1891-1893 For salaries 228, 501 27 1891-1893 To issue bills of health ; contents 450 27 1891-1893 Detail of medical officers in office of 450 27 1891-1893 716 CONSOLIDATED INDEX TO STATUTES CONSULS— Continued Page. Vol. Year. Health regulations to be posted in office 451 27 1891-1893 To make weekly sanitary reports from specified ports . 451 27 1891-1893 Appropriation for instruction and transit pay 142, 816 28 1893-1895 For salaries 145, 819 28 1893-1895 Deficiency appropriation for salaries 486 28 1893-1895 Appropriations for 32 29 1895-1897 Treaty with Japan 848 29 1895-1897 Appropriation for 267,828 30 1897-1899 For present incumbent at certain consulates whose location has been changed 221 30 1897-1899 Bonds of, prescribed, etc 770 30 1897-1899 Embezzlement defined ; penalty 771 30 1897-1899 Appropriation for salaries 65, 887 31 1899-1901 For instruction and transit pay 61, 883 31 1899-1901 For transporting remains 64, 886 31 1899-1901 Appropriation for salaries 81, 813 32 1901-1903 CONSULS OF CHINA In ports of the United States, treaty provisions con- cerning 740 16 1869-1871 CONSULS AND COMMERCIAL AGENTS Fine and imprisonment to be imposed on consuls and commercial agents giving false certificates, March 3, 1835 773 4 1823-1835 CONSULS AND CONSULAR OFFICERS Provisions respecting, in the convention with Belgium 757-763 16 1869-1871 CONSULS AND CONSULATES Treaty provisions respecting (see Japan; Persia; Siam; Swiss Confederation; Two Sicilies) 11 1855-1859 Treaty provisions respecting (see titles of the several treaties with foreign countries) 12 1859-1863 CONSULS OF FOREIGN GOVERNMENTS Exempt from income tax if, etc 260 16 1869-1871 CONSULS AND VICE-CONSULS An act supplementary to "An act concerning consuls and vice-consuls," and for the further protec- tion of American seamen, February 28, 1803 . . 203 2 1799-1813 Provisions concerning, in treaty with Bolivia 1019 12 1859-1863 With Liberia 1246 12 1859-1863 Provisions concerning, in treaty with Denmark 605, 606 13 1863-1865 Treaty provisions with the Dominican Eepublic con- cerning 487,488 15 1867-1869 With Italy 605-613 15 1867-1869 CONSULS-GENERAL In British provinces 673 10 1851-1855 Title of, may be conferred in Asia and Africa 626 10 1851-1855 717 CONSOLIDATED INDEX TO STATUTES CONSULS-GENERAL— ronfinued Fage. Vol. Year. At Beirout 564 10 1851-1855 At Simoda, Japan 659 10 1851-1855 Salaries of, at Alexandria for Egypt 53 11 1855-1859 Calcutta for British India 53 11 1855-1859 Constantinople for Turkey 53 11 1855-1859 Frankfort-on-tbe-Main for Hanseatic and Free aties 53 11 1855-1859 Habana for Cuba 53 11 1855-1859 Quebec for British North America 53 11 1855-1859 Simoda for Japan 53 11 1855-1859 In all other places to be paid by fees 55 11 1855-1859 Act establishing salaries of 52, 53 11 1855-1859 Appointment instead of consuls or commercial agents authorized 53 11 1855-1859 Pay in such cases (see Consuls and Consuls-Gen- eral) 53 11 1855-1859 Of British North America, salary of, to be full com- pensation 404 11 1855-1859 Certain fees to be accounted for 404 11 1855-1859 Fees for certifying invoices, etc 404 11 1855-1859 Appropriations to pay office rent and salaries of 20, 171, 335, 638 12 1859-1863 At Simoda, office of, abolished 171 12 1859-1863 To Haiti and Liberia authorized 421 12 1859-1863 Pay, etc 421 12 1859-1863 Appropriations for salaries of 138, 422 13 1863-1865 Fees of, for British North American provinces, for certifying invoices 140 13 1863-1865 Appropriations for 224, 225, 413, 414 14 1865-1867 At Alexandria, certain power given to 322 14 1865-1867 Appropriations for salary of, at Haiti and Liberia . .142,471 17 1871-1873 At Constantinople to be secretary of legation 472 17 1871-1873 (See Diplomatic and Consular Officers) 18 1873-1875 Appropriation for salaries of 67,322,414 18 1873-1875 Transfer in accounts of State Department for salaries of 405 18 1873-1875 Compensation of 67, 68 18 1873-1875 Annual allowance to certain, for clerk hire 70 18 1873-1875 (See Consular Officers) 19 1875-1877 Appropriations for salaries of 171, 233 19 1875-1877 Word ' ' consul ' ' as used in Revised Statutes title 47, to include 2 19 1875-1877 Appropriation for salaries of 92, 268 20 1877-1879 For deficiencies in 115 20 1877-1879 Clothed with judicial powers, subj/ect to Revised Stat- utes, title 47 131 20 1877-1879 Convention with Italy concerning rights, etc., of .... 725 20 1877-1879 Appropriation for salaries of 134, 135, 340 21 1879-1881 Appropriations for salaries of 129, 425 22 1881-1883 718 CONSOLIDATED INDEX TO STATUTES CONSULS-GENERAL— Con^mwed Tage. Vol. Year. Salary of the, at Vienna, limited 603 22 1881-1883 Appropriations for salaries of 228, 229, 322, 323, 324 23 1883-1885 Not to receive salaries as secretaries or interpreters of legations 329 23 1883-1885 Appropriation for salaries 250, 699 25 1887-1889 Appropriation for salaries 145, 819 28 1893-1895 Appropriations for 32, 584 29 1895-1897 Appropriation for 267,827 30 1897-1899 For present incumbent at certain consulates whose locations have been changed 221 30 1897-1899 Bonds of, prescribed 770 30 1897-1899 Embezzlement defined ; penalty 771 30 1897-1899 Appropriation for 65,887 31 1899-1901 Appropriation for salaries 81, 813 32 1901-1903 CONSULS-GENERAL, CONSULS, ETC. Appropriations for 28, 160, 311, 403 11 1855-1859 Seamen, relief of 311, 403 11 1855-1859 Shipwreck, acknowledgment for rescue of citizens, etc., from 311,403 11 1855-1859 Pay of salaried 328, 403 11 1855-1859 Appropriations for salaries of 57,58,319,322 15 1867-1869 Not to receive salaries while absent from their posts, if, etc 58 15 1867-1869 Moneys in excess of $1,000 in any year, received by, from vice-consuls, etc., to be paid into the Treas- ury 57 15 1867-1869 Not over $500 to be allowed in any year for expenses of vice-consulate 58 15 1867-1869 Salary of consuls, at present $1,500 a year, to be $2,000 when the fees paid into Treasury from their consulates exceed $3,000 a year 58 15 1867-1869 Salary of consul established at Guaymas 57 15 1867-1869 At Osaka and Jeddo, Japan 58 15 1867-1869 To exercise duties of only one such office 322 15 1867-1869 Appropriations for salaries of 219,220,417,418 16 1869-1871 Appropriation for pay of, at Hiogo and Osaka 517 16 1869-1871 Provisions concerning, in the treaty with the Austro- Hungarian monarchy (see Austro-Hungarian Monarchy) 822-831 17 1871-1873 In treaty with the German empire (see German Empire) 921-932 17 1871-1873 Appropriations for salaries, etc., of 143, 144, 472 17 1871-1873 Provisions concerning, in treaty with Peru 713 18 1873-1875 Reception of, in treaty with Salvador 740 18 1873-1875 In treaty with Orange Free State 750 18 1873-1875 Commissions of, in treaty with Salvador 741 18 1873-1875 Functions of, in same 741-745 18 1873-1875 719 CONSOLIDATED INDEX TO STATUTES Page. Vol. Year. FOREIGN CONSULS The papers of foreign vessels to be deposited with the consul of the nation to which the vessels belong 362 3 1813-1823 The consuls not to redeliver papers until a clearance of the vessel is produced 362 3 1813-1823 Restriction of the provisions of the act as to foreign vessels of nations in which American consuls are not permitted 362 3 1813-1823 To be exempt from income duty when, etc 305 13 1863-1865 Protest against pardons of, by foreign governments, on condition of emigration to the United States . . 353 14 1865-1867 Such acts not to be repeated 353 14 1865-1867 720 COMPENDIUM CONSULAR FUNCTIONS INTRODUCTION Division of consular functions; see Atty. Gen. Vol. VII, p. 260, 1855, U. S. Source of consular functions and privileges; see Atty. Gen. Vol. VII, p. 248, 1855, U. S. Enumeration of consular functions; see Harrison v. Vose, 1849, U. S. Consular functions are not limited to those enumerated by statute; see Potter v. Ocean Ins. Co., 1837, TJ. S. How consular functions are determined; see Potter v. Ocean Ins. Co., 1837, U. S. Consul 's action is in itself a presumption of his right to act ; see Potter v. Ocean Ins. Co., 1837, TJ. S. To determine the basis for the consul's action in the per- formance of certain functions reference should be had to the terms of his exequatur and the regulations of the sending state; see Atty. Gen. Vol. VIII, p. 102, 1856 U. S. Consul may not discharge functions contrarily to the law of the receiving state; see Atty. Gen. Vol. VIII, p. 100, 1856, TJ. S. For consuls knowingly to attempt to contravene the spirit of the laws of the receiving state is a violation of the sovereign rights of the receiving state; see Atty. Gen. Vol. VIII, p. 470, 1856, U. S. "No invariable test can be derived from international law, or from the general character of the consular office, by which to determine what services performed by the consul are official ser- vices, and what are not;" see Atty. Gen. Vol. XIX, p. 197, 1888, U. S. Origin and development of consular functions; see Atty. Gen. Vol. VII, p. 346-349, 1855, U. S. Basis of consular functions; see Atty. Gen. Vol. VII, p. 249, 1855, U. S. Classification of consular functions according to the nature of the consular fee ; see Atty. Gen. Vol. VII, p. 260, 1855, TJ. S. 721 CONSULAR FUNCTIONS Consuls have other powers than those enumerated by statute ; see Atty. Gen. Vol. VII, p. 249, 1855, U. S. Enumeration of the functions appertaining to the office of consul; see Viveash v. Becker, 1814, G. B. NON-MINISTERIAL OR OFFICIATORY ACTS (A.) Marriage Discussion of consular marriages concluding that United States consuls have not the right to solemnize; see Atty. Gen. Vol. VII, p. 18, 1854, U. S. Solemnization by American consul; see Loring v. Thorndike, 1862, TJ. S. Consuls might acquire the right to solemnize marriage by municipal act of any foreign government giving legality to a marriage within it so celebrated, in which case there would be nothing in our law, or in our public policy, to forbid a consul of- ficiating in that relation; secondly, perhaps, specially by treaty, or generally by act of congress; see Atty. Gen. Vol. VII, p. 343, 1855, U. S. Consuls do not possess power to solemnize marriage and department of state cannot give them that power; see Atty. Gen. Vol. VII, p. 342, 1855, U. S. "If, indeed, being a subject of the state, he has power as a local magistrate to solemnize marriage, or, being a foreigner, he has the same power as clergyman, he may do it, but, in either case, not in his capacity as consul;" see Atty. Gen. Vol. VII, p. 343, 1855, U. S. Consul is legally incapable of solemnizing marriage without authority of the local government ; see Atty. Gen. Vol. VII, p. 343, 1855, IT. S. (B.) Arbitration Consul has no judicial power but acts as arbitrator in cer- tain cases; see Atty. Gen. Vol. VIII, p. 382, 1857, U. S. "When a consul intervenes in a controversy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul;" see Atty. Gen. Vol. XXI, p. 201, 1895, TJ. S. PROTECTION OF NATIONALS Treaty with Au.stria gives Austrian consul right to apply to local authorities for protection of his countrymen ; see Von Tho- dorovich v. Franz Josef, 1907, U. S. 722 COMPENDIUM Sailors generally under jurisdiction of consul ©f nationality of ship for matters concerning shipping, but in other cases, and in those of special gravity, the consul's duty to care for nationals revives; see Two Friends, 1799, G. B. "Officious" letters of British consuls were not allowed to be read in court when the United States government felt that the British government was attempting to violate the neutrality laws of the United States; see Atty. Gen. Vol. VIII, p. 469; 1855, U. S. Consul intervenes to prevent the state of Louisiana taxing an estate contrary to treaty; see (Succession of) Dufour, 1855, U. S. Consul of Oldenburg charged with the duty of looking after prizes and nationals detained as prisoners of war and making the necessary intercessions before the proper tribunals to procure them their liberty; see Viveash v. Becker, 1814, G. B. Consul's functions "are purely of a conunercial nature, and such as properly belong to a consul, those of advice and interces- sion and there is no one function of state purposed to be per- formed by him as representing the sovereign of his state; see Viveash v. Becker, 1814, G. B. Consul intervened to secure the release of an imprisoned American ; see Atty. Gen. Vol. XXII, p. 32, 1898, TJ. S. Protection of Filipinos and Porto Ricans by American con- suls; see Atty. Gen. Vol. XXIII, p. 402-404, 1901, U. S. Statutes for care of destitute seamen do not apply to Fili- pinos; see Atty. Gen. Vol. XXIII, p. 402, 1901, U. S. DUTIES IN CARING FOR THE INTERESTS OF ABSENT OR IN- CAPACITATED NATIONALS See Stewart v. Linton, 1902, TJ. S.; St. John v. Crocl, 1843, TJ. S.; Riley v. The Obeli Mitchell, 1861, U. S. (A.) Care of minors Consuls should repatriate a minor stowaway ; see Luscom v. Osgood, 1844, TJ. S. Consul's duty to look after estates left to minors; see Atty. Gen. Vol. VIII, p. 100, 1856, U. S. Consul may not appear for an infant, party to proceedings, so as to give the surrogate's court jurisdiction of such party, without the issuance of a citation; see (In re) Peterson's Will, 1906, TJ. S. 723 CONSULAR FUNCTIONS (B.) Care of estates See (In re) Tartaglio, 1895, U. S.; (Succession, of) Rabasse, 1895. U. S.; (In re) Davenport, 1904, U. S. Consul 's duty to care for estate left to heirs in sending state ; see Atty. Gen. Vol. VIII, p. 100, 1856, IT. S. Nature of consul's action when caring for estates; see Atty. Gen. Vol. VIII, p. 99, 1856, U. S. French consul intervenes to prevent the state of Louisiana taxing an estate contrarily to treaty; see (Succession of) Dufour, 1855, IT. S. "It is clear that under this treaty system between these three Latin countries — Spain, Italy, and France — the consul is to exer- cise an exterritorial judicial power and to be the real adminis- trator of the estate ; but that disputes in which the coimtry where the death occurred has some special interest, as where its own people or the people of a third country whom it should protect are concerned, are to be carved out of his jurisdiction and set- tled by the local judicial authority, leaving him to resume his functions when these special questions have been determined;" see Atty. Gen. Vol. XXIII, p. 104, 1900, U. S. Consul must give heed to state laws when real property is included ; see Atty. Gen. Vol. VII, p. 272, 1855, U. S. Consul's duties in caring for estates and the application of the law of 1855 ; see Atty. Gen. Vol. VII, p. 270, 1855, TJ. S. "The face of a banker's circular letter of credit, found in the possession of an American dying abroad, is not assets to that amount to be administered by the consul;" see Atty. Gen. Vol. VII, p. 542, 1855, TJ. S. Feos of consuls for the care of estates; see Atty. Gen. Vol. VII, p. 255-259, 1855, TJ. S. Nature of American consul's action when administering an estate; see Sturgis v. Slacum, 1836, TJ. S. In the course of the administration of an estate the French consul was entitled to be heard by the court, not as a party but informally, as the national agent of supposedly interested par- ties; see Ferric v. The Public Administration, 1855, TJ. S. (C.) Right of a consul to administer estates by application of treaty provisions Of-rman consul's right to administer estate; see (The) Gen- eral McPherson, 1900, TJ. S. 724 COMPENDIUM French consul's right to administer an estate; see (In re) lobrasciano's Estate, 1902, U. S. Russian consul's right to become administrator. He must give a bond and conduct himself as any administrator; see (In re) Wyman, 1906, TJ. S. Right of consul to take charge of estate in accordance with treaty decided by international arbitration; see (In re) Vergil, 1867, IT. S. Consul has right to administer estate; see (In re) Peterson's Will, 1906, TJ. S. Court refused to grant Swedish vice-consul the administra- tion of estate of a Swede ; see Lanfear v. Ritchie, 1854, U. S. Consul allowed to act as administrator on giving usual cer- tificate; see (In re) Logiorato's Estate, 1901, TJ. S. Consul given administration by surrogate's court, subject to usual condition. Therefore, as surrogate's court does not ob- tain jurisdiction over an estate unless minor heirs are cited to appear, consul cannot take administration of surrogate's court unless they are cited ; see (In re) Peterson's Will, 1906, TJ. S. British court refused to issue letters of administration to the American consul; see Aspinwall v. The Queen's Proctor, 1839, a. B. State statutes must give way to treaty stipulations and the procedure followed must conform to treaty stipulations as much as possible; see (In re) Fattosini, 1900, TJ. S. (D.) Eepresentation of absent nationals in court (see also Care of Estates) See Bello Corrunes, 1821, TJ. S.; (The) Anne, 1818, TJ. S.; (The) Antelope, 1825, TJ. S.; (The) London Packet, 1815, TJ. S.; Gernon et al v. Cochran, 1804, TJ. S. ; One Hundred and Ninety- four Shawls, 1848, TJ. S.; (The) Adolph, 1851, TJ. S.; Rowe v. Brig, 1818, TJ. S.; Simpson v. Fogo, 1862, G. B.; (The) Divina Pastora, 1819, TJ. S. In the course of the administration of an estate the French consul was entitled to be heard by the court, not as a party but informally, as the national agent of supposedly interested par- ties ; see Ferric v. The Public Administrator, 1855, TJ. S. "The consul appears very properly, to have employed Mr. Mitcheson as proctor and advocate in the cause, but, in form, as proctor and advocate for the respondent, and not of the consu- late;" see Townshend v. The Mina, 1868, TJ. S. British consul appears for original owners and French con- 725 CONSULAR FUNCTIONS sul claims ship as a valid prize ; see McDonough v. Dannery, 1796, U. S. German consuls authorized by article 8 of treaty to repre- sent interests of German citizens in court; see (The) General McPherson, 1900, TJ. S. Before property can be delivered to a consul proof of the individual proprietary interest must be accepted; see (The) Antelope, 1825, U. S. Representation in court of a minor's interest by the con- sul ; see (In re) Peterson's Will, 1906, U. S. The acting British consul filed a claim in behalf of absent owners whom he thought to be British; see (The) Elizabeth, 1862, U. S. A consul may represent the interests of nationals in prize proceedings, but his action is in the nature of surveillance; see Atty. Gen. Vol. VIII, p. 101, 1856, IT. S. "It is clear that he (consul) has no right, by any rule of public law, or international comity, to be heard in the case by the court, otherwise than as a witness, whether enforced or volun- tary;" see Atty. Gen. Vol. VIII, p. 470, 1855, U. S. French consul intervened to prevent the state of Louisiana levying a tax of 10 per cent, on an estate of a deceased national contrary to treaty provisions; see (Succession of) Dufour, 1855, U. S. Consul may intervene in behalf of citizens who are absent but interested in the process; see Robson v. The Huntress, 1851, U. S. Consul may not appear for an infant, party to the pro- ceedings, so as to give the surrogate's court jurisdiction of such party, without the issuance of a citation; see (In re) Peterson's WiU, 1906, TJ. S. ACTS MOTIVED BY THE INTEREST OF THE SENDING STATE RATHER THAN BY NATIONALITY (A.) Notarial acts Consuls not required to perform notarial acts; see Atty. Gen. Vol. XII, p. 1, 1866, U. S. Authentication of signature of notary of receiving state is not a notarial act; see Atty. Gen. Vol. XII, p. 1, 1866, XT. S. Consul rf'placfs state officials for the performance of certain acts; see St. John v. Croel, 1843, TI. S. 726 COMPENDIUM An notarial verification of a consul's signature to an af- fidavit is not required; see (In re) Magee, 1885, G. B. It is not the duty of United States consuls to attest the sig- natures of public functionaries of the receiving state; see Stein V. Stein's Curator, 1836, U. S. United States consul certified to the official character of of- ficials of the receiving state in conformity with the law of Louis- iana; see (Succession of) Wedderburn, 1841, U. S. A British consul's authentication of an affidavit taken before an American judge is a notarial act which he is empowered by statute to perform; see (Trustee of Mrs.) Barber, 1835, G. B. Court declared that the old practice allowing the swearing of affidavits before notaries was still in force in a case where no British consul was within 150 miles from deponent's residence; see Cooke v. Wilby, 1884, G. B. It may be that the laws of a state of the United States give validity to certain services performed by consuls; see Atty. Gen. Vol. XX, p. 92, 1891, JS. S. The value of unofficial services customarily performed by consuls depends entirely upon the fact that the person rendering them is a consular officer; see Atty. Gen. Vol. XX, p. 92, 1891, U. S. "Any consul" in statute embraces consuls of every grade; see Mott v. Smith, 1860, U. S. The efficacy of the act may be due to the faith generally re- posed in consular officers; see Atty. Gen. Vol. XX, p. 93, 1891, U.S. Consuls have no general power of administering oaths, though they are authorized to authenticate depositions made in foreign countries; therefore the oath required of an applicant for a patent should not be taken before a consul but by a com- petent magistrate and the deposition so taken should be verified by the official certificate of authentication of the consul; see Atty. Gen. Vol. Ill, p. 632, 1840, U. S. Drawing up a power of attorney, bottomry bond, will, or any similar service, is a notarial, not a consular act; see Atty. Gen. Vol. VII, p. 259, 1855, U. S. The authentication by the diplomatic and consular officers of the United States of the copies of depositions, warrants and papers to be received as evidence of criminality to secure the extradition is sufficient; see Rice v. Ames, 1900, U. S. Administration of oaths by consul according to the pro- vision of section 20 of the bankrupt act of 1898 ; acknowledgment 727 CONSULAR FUNCTIONS of a power of attorney before a consul is sufficient to authorize the proof of the creditor's claim before the referee; see (In re) Sugenheimer, 1899, U. S. A vice and deputy consul authenticated certificates to be used in a petition for letters of administration in sending state and also certified himself to be a notary public of the United States. Held: that this was not such an authentication as the statute section 952 Code official procedure directed ; see Brown v. Landon, 1883, U. S. The British consul received an acknowledgment, of which the affidavit verifying the same had been sworn to before the provisional British consul, when no notary or other official be- fore whom it could have been sworn was within many hundred miles; see (In re) Darling, 1845, U. S. (B.) Authentication of signatures There is no law of the United States making it the duty of the consul to acknowledge and authenticate the signature or the official character of a foreign notary public; see Mosby v. United States, 1888, U. S.; Atty. Gen. Vol. XI, p. 1, 1854, IT. S. Concerning consular certificate regarding the official char- acter of a foreign register; see Catlett v. Pacific Insurance Co., 1826, U. S. American court considered that an American consul's cer- tificate of the signature of the acalde, who himself had certified the signature and official character of the Spanish notaries, ought to be received ; see Ferrers v. Bosel, 1821, TJ. S. (C.) Authentication of translations Interpreters are always sworn, and the translation by the consul, not on oath, can have no greater validity than that of any other respectable man ; see Church v. Hubbard, 1804, U. S. (D.) Authentication of the laws of foreign states Consuls are not entrusted with the power of authenticating the laws of foreign nations; see Church v. Hubbard, 1804, TJ. S. Case in which consul tostified as to the maritime law of his state; see Madonna d' Idra, 1811, G. B. (E.) Acknowledgments of powers of attorney See Stewart v. Linton, 1902, U. S.; St. John v. Croel, 1843, U. S. 728 COMPENDIUM A deputy consul can take the acknowledgment of a power of attorney ; see Stewart v. Linton, 1902, TJ. S. The administration of oaths by a consul according to the provisions of section 20 of the bankrupt act of 1898; the acknowl- edgment of a power of attorney before a consul was sufficient to authorize the proof of the creditor's claim before the referee; see (In re) Sugenheimer, 1899, T7. S. A vice and deputy consul has authority to acknowledge a power of attorney; "for while he acted in that capacity he was entitled to exercise the authority vested by law in the consul himself ; " see Brown v. Landon, 1883, U. S. (F.) Acknowledgment of deeds Competence of consul to take an acknowledgment of a deed; see Scanlon v. Wright, 1833, U. S. ; St. John v. Croel, 1843, TJ. S. Attestation of deeds must be taken within consulate ; see Mc- Candless v. Yorkshire, 1897, V. S. When without indication of place where taken, an acknowl- edgment is not presumed to have been taken within the consular district; see McCandless v. Yorkshire, 1897, TJ. S. "A consul of the United States is authorized to take at his consulate an acknowledgment of a deed to realty situated in this state, and his certificate, under official seal, is evidence of such acknowledgment;" see Long v. Powell, 1904, TJ. S. Certificates of acknowledgment, if they purport to be by the one authorized, are prima facie evidence of the execution of the deed as well as of the official character of the persons giving them. No aliunde proof of signature is necessary; see Mott v. Smith, 1860, U. S. (G.) Affidavits See Savage v. Birckhead, 1838, TJ. S. ; Herman v. Herman, 1825, TJ. S.; Browne v. Palmer, 1902, TJ. S.; St. John v. Croel, 1843, TJ. S. Value of affidavits under state laws; see Marine Wharf v. Parsons, 1897, TJ. S. Case in which state court passed on legality of an oath ad- ministered by a consul; see Seidel v. Peschkaw, 1859, TJ. S. Consul must take oath prior to entry upon discharge of duties to be entitled to salary — This oath cannot be taken before a consul of another state; see Otterbourg's Case, 1869, TJ. S. Consul is a representative of the United States within the 729 CONSULAR FUNCTIONS meaning of the act of 1856 and hence has authority to administer an oath; see Seidel v. Peschkaw, 1859, TJ. S. A deputy consul can take the acknowledgment of a power of attorney ; see Stewart v. Linton, 1902, TJ. S. Competence of commercial agent to take acknowledgments under the laws of Pennsylvania; see Moore v. Miller, 1892, IT. S. Consuls are not competent to take affidavits; see (In re) Eady. 1838. G. B.; (In re Anne) Cooper, 1855, G. B. When sho^\•n the difficulty of getting an affidavit sworn be- fore the magistrate in Russia, the British court allowed one sworn before a consul to be enrolled ; see Davy v. Maltwood, 1841, G. B. "When by German law the British consul was not allowed to administer an oath, the affidavit could be sworn before a German judge; see (In re) Fawcus, 1884, G. B. Court admits affidavits taken before the British consul in Russia, because magistrates of Russia are not empowered to take affidavits ; see (In re) Daly, 1841, G. B. Gives an example of a consul's certificate, and a certificate of a notary public of the receiving state, to the effect that the consul is entitled to administer oaths; see (Ex parte) Hutchin- son, 1825, IT. S. A British consul's authentication of an affidavit taken before an American judge is a notarial act, which he is empowered by statute to perform; see (Trustee of Mrs.) Barber, 1835, G. B. No notarial certificate of an affidavit made before the consul is required, because the consul's official character is easily capable of proof; see (Ex parte) Bird, 1852, G. B. Court declared that the old practice allowing the swearing of affidavits before notaries was still in force, in a case where no British consul was within 150 miles; see Cooke v. Wilby, 1884, G. B. The British court received an acknowledgment, of which the affidavit verifying the same had been sworn before the provi- sional British consul, no notary or other official before whom it could have been sworn, being within many himdred miles; see (In re) Darling, 1845, G. B. Gives the rule of the British court regarding the manner of taking affidavits abroad ; see Cruttenden v. Bourbell, 1808, G. B. (H.) Value of consul's certificate W'liat tlif consul's crTtificate is competent to give; see Brown V. The Independence, 1836, IT. S. 7.30 COMPENDIUM Value of consul's certificate as to facts relating to his of- fice ; see Toler v. White, 1834, U. S. Value of consul's certificate as to facts; see Levy v. Bnrley, 1836, U. S. Value of consul's certificate, as proving facts and being binding on the parties; see Waldron v. Coombe, 1810, G. B. ; St. John V. Creel, 1843, TJ. S. Value of consul's certificate relating to his official acts; see Waldron v. Coombe, 1810, U. S. Value of consul's certificate to facts concerning sailors; see (The) Coriolanus, 1839, TJ. S. Value of consul's certificate to facts, when he is called upon to act by statute ; see Lamb v. Briard, 1848, U. S. The Spanish consul, to secure the arrest of a deserter under the treaty, must produce the original roll, or corresponding doc- ument, containing the names of the crew. A copy certified by the consul does not meet the requirements of the treaty; see Atty. Gen. Vol. IX, p. 97, 1857, TJ. S. An assignment of a patent purporting to have been executed before a consul general is sufficiently proved by the signature of the consul general and the seal of the United States consulate general; see Matheson v. Campbell, 1895, TJ. S. Value of a passport issued by a consul as evidence; see Foster v. Davis, 1822, TJ. S. Value of consul's certificate as evidence of desertion; see Lewis V. Jewhurst, 1866, G. B. "A consul of the United States is authorized to take at his consulate an acknowledgment of a deed to realty situated in this state, and his certificate, under official seal, is evidence of such acknowledgment;" see Long v. Powell, 1904, TJ. S. A vice and deputy consul authenticated certificates to be used in a petition for letters of administration in sending state and also certified himself to be a notary public of the United States. Held: that this was not such an authentication as the statute section 952 code official procedure directed; see Brown v. Landon, 1883, TJ. S. A passport is not evidence that individual has been in for- eign country ; see Foster v. Davis, 1822, TJ. S. Authenticity of a deposition taken by an officer styling him- self a "consular agent" and using a seal containing the words United States Commercial Agency;" see Schnnior v. Bussell, 1892, U. S. "If the attestation of the signature, and right of the person 731 CONSULAR FUNCTIONS who administered the oaths, were duly certified under the seal of a responsible officer, whose appropriate duty it was to give such certificate, it might be received, so far as the authentication goes, as prima facie evidence, though not under the great seal of the state;" see Stein v. Bowman, 1839, IT. S. Case in which court refused to accept consul's certificate of role of ship, even though boimd by treaty to give faith to con- sul's certificate; see TJnited States v. Judge Lawrence, 1795, TJ. S. Value of consul's certificate; see Matthews v. Offley, 1837, U. S.: Foster v. Davis, 1822, TJ. S.; (The) Alice, 1882, U. S.; (The) Coriolanus, 1839, TJ. S. Value of consul's proceedings as evidence; see Graves v. (The) W. F. Babcock, 1897, TJ. S.; St. John v. Croel, 1843, TJ. S. Value of consul's certificate to facts, where he acts under statute to discharge a sailor ; see (The) Paul Revere, 1882, TJ. S. Conclusiveness of consul's declaration, signed to the master's statement of discharge; see (The) Lilian M. Vigus, 1879, TJ. S. Value of French consul-general's despatch as evidence; see Gemon v. Cochran, 1804, TJ. S. Value of the consul's certificate declaring what is the law of shipping of his state; see Madonna d' Idra, 1811, G. B. Nature of consul's act in discharging seamen, and the value of his certificate; see Campbell v. Steamer TJncle Sam, 1856, TT. S. ; Hutchinson v. Coombs, 1825, TJ. S. ; Jenks v. Cox, 1872, TJ. S. Sound List and Petersburg List are documents transmitted by British consuls, which state the arrival of different ships. These lists cannot be received as evidence, as they are mere rep- resentations ; see Roberts v. Eddington, 1801, G. B. Lists of the arrival of ships, sent home by consuls, are mere representations and cannot be received as evidence; see Roberts v. Eddington, 1801, G. B. Authf-ntif-ation of extradition proceedings; see (In re) Herres, 1887, TJ. S. (I.) Taking depositions Actif)n fif consul concerning depositions; see Savage v. Birckhead, 1838, TJ. S.; Semmens v. Walters, 1882, TJ. S.; Adams V. State, 1885, U. S. Authority of consul to take deposition de bene esse; see Bischoffscheim v. Baltzer, 1882, TJ. S.; (The) Alexandria, 1906, TJ. S. Value of affidavits to a deposition taken before the com- 732 COMPENDIUM mercial and naval agent of the United States ; see Welsh v. Hill, 1807, TJ. S. The court received the return of a commission, executed by a vice-consul as commissioner named by a court; see Stiff v. Nu- gent, 1843, U. S. Consuls have no general power of administering oaths, though they are authorized to authenticate depositions made in foreign countries; therefore the oath required of an applicant for a patent should not be taken before a consul, but by a com- petent magistrate, and the deposition so taken should be verified by the official certificate of authentication of the consul; see Atty. Gen. Vol. Ill, p. 532, 1840, U. S. Conditions covering the issuance of letters rogatory and open commissions ; see Atty. Gen. Vol. XXIV, p. 70, 1902, U. S. Spanish consuls in Great Britain are instructed to obtain the testimony of voluntary witnesses by proceedings before a magis- trate, but to attend to citations themselves; see Atty. Gen. Vol. XXIII, p. 114, 1900, U. S. Court declares that it has no authority to compel witnesses to testify before Spanish consul; see Spanish Consul's Petition, 1867, IS. S. All depositions must be taken under commissions; see Stein V. Bowman, 1839, U. S. "It cannot be conceived that the general government sends representatives abroad for the purpose of acting as the execu- tive officers of the different state courts in the Union. It is true that those representatives sometimes act as ministerial officers of such courts, as for instance, to procure testimony, and the like; but they do so with the special authority of state legislation, pro- viding distinctly for such eases;" see Interdiction of Joseph Dumas, 1880, TJ. S. Authenticity of a deposition taken by an officer styling him- self a "consular agent" and using a seal containing the words * ' United States Commercial Agency ; " see Schunior v. Russell, 1892, U. S. (J.) Administering oaths (see Depositions; Affidavits) Consuls have no general power of administering oaths, though they are authorized to authenticate depositions made in foreign countries. Therefore the oath required of an applicant for a patent should not be taken before a consul but by a competent magistrate and the deposition so taken should be verified by the 733 CONSULAR FUNCTIONS official certificate of authentication of the consul; see Atty. Gen. Vol. ni. p. 532. 1840, IT. S. REPRESENTATIVE OR POLITICAL FUNCTIONS Consul referred to as representative of his country; see Herzogin Marie, 1861, G. B.; Fry v. Cook, 1876, TJ. S.; Davis v. Packard. 1833, TJ. S.; Bucker v. Klorkgeter, 1849, U. S. Consuls have no authority to grant licenses exempting ves- sels from capture; see (The) Hope, 1813, G. B. ; Benito Estenger, 1900. U. S. ; Rogers v. Amado, 1847, TJ. S. Lord Stowell does not declare whether the consul or the min- ister was referred to as representative in speaking of the case of (The) Courtney; see (The) Wilhelm Frederick, 1823, G. B. Consul's fimctions "are purely of a commercial nature, and such as properly belong to a consul, those of advice and inter- cession and there is no one fimction of state purposed to be per- formed by him as representing the sovereign of his state;" see Viveash v. Becker, 1814, G. B. Consuls are not public ministers and are not invested with any representative character; see Atty. Gen. Vol. I, p. 42, 1794, U. S. Mexican consul makes complaint under oath to secure extra- dition — His official character must be taken as sufficient evidence of his authority, and as the government he represented was the real party interested in resisting the discharge, the appeal was properly prosecuted by him in its behalf; see Ornelas v. Ruiz, 1895, TJ. S. (A.) Observance of treaties (see Treaties under Immunities) (B.) Consular reports Sound Lists and Petersburg List are documents transmitted by British consuls which state the arrival of different ships. These lists cannot be received as evidence as they are mere rep- resentations; see Roberts v. Eddington, 1801, G. B. (C.) Representation of sending state in court Consul may not represent his sovereign nor vindicate his prerogative without special authority; see (The) Anne, 1818, TJ. S. A consul cannot intervene for his sovereign when said sov- ereign has a minister or ambassador resident in the country; see Robson 7. (The) Huntress, 1851, U. S. 734 COMPENDIUM Consul has no right to represent the personality of his sov- ereign or his prerogatives but may represent the interests of any individual or a mass of individuals in the receiving state; see Von Thodorovich v. Franz Josef, 1907, IT. S. Consul of Greece appealed to British court to enforce the decision of a Greek court against a Greek ship; see (The) Evan- gelistria, 1876, G. B. Intervention of consul to represent his government's in- terest; see (The) Conserva, 1889, IT. S. British and French consuls represent claims for the posses- sion of a prize ; see McDonough v. Dannery, 1796, TJ. S. Protest of consul against illegality of a prize condemnation heeded by court ; see (The) Betty Cathcart, 1799, G. B. Representation of government in prize cases; see Gernon v. Cochran, 1804, TJ. S. Consul presents claim of government for violation of neu- trality by prize proceedings ; see Vrow Anna Catharina, 1803, G. B. Dutch consul protest to Portuguese government against British violation of Portugese neutrality; see Vrow Anna Cath- arina, 1803, G. B. Among consul's functions to see that territory of receiving state is not made a base for fitting out expeditions against his government; see (The) Conserva, 1889, TJ. S. Consul of Oldenbuig w s charged with the duty of looking after prizes and nationals detf^ned as prisoners of war and mak- ing the necessary intercf^ssioL before the proper tribunals to procure them their liberty; see Viveash v. Becker, 1814, G. B. (D.) Arrest of deserters See United States v. Judge Lawrence, 1795, TJ. S.; United States V. Motherwell, 1900, U. S.; Atty. Gen. Vol. XII, p. 465, 1868, U. S. Declares that court has always helped masters to recover de- serters ; see Willendson v. The Forsoket, 1801, U. S. The Spanish consul to secure the arrest of a deserter under the treaty must produce the original roll or corresponding docu- ment containing the names of the crew. A copy certified by the consul does not meet the requirements of the treaty; see Atty. Gen. Vol. IX, p. 97, 1857, U. S. Case in which deserter was forcibly taken from the custody of the United States marshal while the latter was, upon the written order of the consul, delivering him to the master of the vessel — Court held that the law required the delivery to the con- 735 CONSULAR FUNCTIONS sul and that acting under the direction of the consul the mar- shal Avas not in the performance of a duty enjoined by law. Hence the defendants could not be punished for obstructing an officer in the performance of a duty enjoined by law; see United States V. Kelley, 1901. U. S. Question whether alleged deserters should be given up to German consul by reason of the application of article 14 of the Convention of 1871 with Germany, should be submitted to the proper court for a judicial determination ; see Atty. Gen. Vol. XXV, p. 77, 1903, U. S. (E.) Extraditions See Benson v. McMahon, 1887, TJ. S.; (In re) Grin, 1901, IT. S.; (In re) Adutt, 1893, TJ. S.; (In re) Kaine, 1852, TJ. S. Representative character of consul when asking for the de- livery of prisoners to be transported to the sending state for trial ; see Atty. Gen. Vol. VIII, p. 76, 1856, TJ. S. Consul's duty in relation to extradition; see Atty. Gen. Vol. VIII. p. 84, 1856, TJ. S. Consul's action in securing the custody of a seaman who had committed a crime for transportation to America for trial; see Atty. Gen. Vol. VII, p. 722, 1856, TJ. S. "No evidence was required that the Russian consul had au- thority to make the complaint;" see Grin v. Shine, 1902, TJ. S. Complaint under oath of Belgiun consul-general, although based entirely upon the strength of depositions and telegrams from sending state, is sufficient to warrant holding prisoner; see (Ex parte Henry) Van Hoven, 1876, TJ. S. Complaint in extradition case verified by a foreign consul is sufficient if made officially although not based on personal loiowl- edge; see (In re Francois) Farez, 1870, TJ. S. Mexican consul makes complaint under oath to secure extra- dition — His official character must be taken as sufficient evidence of his authority, and as the government he represented was the real party interested in resisting the discharge, the appeal was prr.pcrly prosecuted by him in its behalf; see Ornelas v. Ruiz, 1895, TJ. S. Swiss consul asks for warrant for delivery of Roth to the authorities of the Swiss Confederation; see (In re) Roth, 1883, TJ. S. 73fi COMPENDIUM (F.) Exercise of diplomatic functions See (In re) Baiz, 1899, U. S. Consul's functions "are purely of a commercial nature, and such as properly belong to a consul, those of advice and inter- cession and there is no one function of state purposed to be per- formed bj'^ him as representing the sovereign of his state;" see Viveash v. Becker, 1814, G. B. ' ' The United States may, with the consent of the other party, superadd to the regular duties of consul any of those of min- isters;" see Atty. Gen. Vol. VII, p. 343, 1855, U. S. Consul made charge d'affaires becomes invested with full diplomatic privileges, "yet becomes so invested as cliarge d' affaires, not as consul, and the fact of such casual duplicature of functions does not change the legal status of consul, whether they be regarded through the eye of the law of nations or that of the United States;" see Atty. Gen. Vol. VII, p. 345, 1855, TJ. S. "A correspondence ensued between the captain general of Cuba and Mr. Trist, (United States consul), which terminated in a friendly disposition of the question, whether the seizure of the vessel in the port of Havana was a violation of the jurisdic- tional rights of Spain;" see Atty. Gen. Vol. Ill, p. 406, 1839 U. S. When the American consul suspected the papers of a ship to be fraudulent he called upon a vessel of war of his nation to seize it; see Atty. Gen. Vol. Ill, p. 405, 1839, U. S. By the act of 1856 a consul cannot exercise diplomatic func- tions without authorization from the president; see Otterbourg's Case, 1869, U. S. "By some governments (a consul) is invested — in the ab- sence of a minister or ambassador to represent them — with dip- lomatic powers;" see Oscanyan v. Arms Company, 1880, TJ. S. ADMINISTRATIVE FUNCTIONS Applications for patents must be sworn to; see Atty. Gen. Vol. XX, p. 458, 1892, U. S. Duties of consul in sealing cars; see Atty. Gen. Vol. XX, p. 31, 1891, U. S. An assignment of a patent purporting to have been executed before a consul general is sufficiently proved by the signature of the consul general and the seal of the United States consulate general; see Matheson v. Campbell, 1895, TJ. S. 737 CONSULAR FUNCTIONS (A.) Care of shipping Consul is competent to appoint surveyors to make surveys of vessels and sales ; see Atty. Gen. Vol. VI, p. 617, 1854, IT. S. Authority of consul to dispose of the eifects of deserters; see Atty. Gen. Vol. XIV, p. 520, 1875, IT, S. Consul is in some respects the agent of the master in cases where he presides over the auction of the damaged goods; see Waldron v. Coombe, 1810, G. B. Fees for receiving and delivering vessels registers prescribed by regulation of the president; see Atty. Gen. Vol. XI, p. 73, 1866, TJ. S. For copy of consul's certificate annexed to certain affidavits in a suit for wages; see Kammerhevie Rosenkrants, 1822, G. B. Protest against capture in neutral waters; see Vrow Anna Catharina, 1803, G. B. That the consul's care of distressed seamen and their re- patriation is primarily based upon the interests of the mercantile marine is instanced by the opinion of the attorney general; see Atty. Gen. Vol. Ill, p. 683, 1841, U. S. A consul in China is entitled to fees collected for shipping and discharging seamen on foreign built vessel sailing under the American flag; see Goldsborough v. United States, 1889, XT. S. Case involving the consideration of the action of the Rus- sian consul at Constantinople, who had appointed a curator of a wreck and three persons to assess expenses; see Dent v. Smith, 1869, G. B. Official character of consul's acts when ordering survey of vessel and sale at auction — Like a trustee he is inhibited from acquiring an interest in the property ; see Riley v. The Obeli Mitchell, 1861, U. S. "The consul appears very properly, to have employed Mr. ^litcheson as proctor and advocate in the cause, but, in form, as proctor and advocate for the respondent, and not of the consu- late;" see Townshend v. The Mina, 1868, TJ. S. (B.) Care of seamen See Snow v. Wope, 1855, TJ. S.; (The) Coriolanus, 1839, U. S. Consul often in h.-ague with captain against seamen ; see (The) Coriolanus, 1839, TJ. S. The attorney-general declared that in a judicial case in which there was a conflict between the department of state and the district court as to the meaning of the word "destitute" contain- 738 COMPENDIUM ed in the statute it should be settled by the courts; see Atty. Gen. Vol. XIX, p. 25, 1887, U. S. Consul's action in earing for shipwrecked sailors. Case in which he obtains wages from master to provide for wants of crew ; see Atty. Gen. Vol. XIX, p. 22, 1887, U. S. Statutes for care of destitute seamen do not apply to Fili- pinos; see Atty. Gen. Vol. XXIII, p. 402, 1901, U. S. That the consul's care of distressed seamen and their re- patriation is primarily based upon the interests of the mercantile marine is instanced by the opinion of the attorney general; see Atty. Gen. Vol. Ill, p. 683, 1841, U. S. Case where consul's action in imprisoning seamen is con- demned — consul being, in his official character, intrusted with extending his protection to them; see Shorey v. Rennell, 1858, U. S. Right of seamen to see the consul; see Morris v. Cornell, 1843, TJ. S. Value of consular certificate as to facts relating to mas- ter's refusal to take sailors on board; see Matthews v. Offley, 1837, U. S.; also (Certificates of Facts under heading of Jndicial Func- tions). Repatriation of a minor sailor; see Inscom v. Osgood, 1844, TT. S. (C.) Passports Value of a passport issued by a consul as evidence; see Fos- ter V. Davis, 1822, TJ. S. A passport is not evidence that individual has been in a for- eign country ; see Foster v. Davis, 1822, TJ. S. JUDICIAL FUNCTIONS Origin and basis for consul's exterritorial rights in certain countries ; see Atty. Gen. Vol, VII, p. 346-349, 1855, U. S. As between citizens and subjects of sending state consul "may exercise judicial powers;" see Oscanyan v. Arms Com- pany, 1880, U. S. (A.) Consul's jurisdiction over crew (see also Care of Shipping) Extent to which the consul's action in declaring the entries of desertion, made by master, to be in accordance with the law of the sending state is conclusive; see (The) Lilian M. Vigus, 1879, U. S. 739 CONSULAR FUNCTIONS Authority of consuls in eases of deserters; see (The) Lilian M. Vigus. 1879, U. S. ; Atty. Gen. Vol. XII, p. 465, 1868, U. S. Right of seamen to see consul; see Morris v. Cornell, 1843, U. S. Consul can determine who constitutes members of crew as between citizens of sending state ; see Atty. Gen. Vol. XI, p. 512, 1866, TJ. S. Duty of a consul to return a minor stowaway who became a sailor; see luscom v. Osgood, 1844, XJ. S. Ad\'ice of consul does not relieve master of responsibility for illegal act ; see Wilson v. (The) Mary, 1828, TJ. S. "Where consul thrust sailor into jail to please captain, latter was not relieved of responsibility ; see Magee v. (The) Mose, 1831, U. S. "Where consul secured soldiers to help master, libellant was awarded damages against master; see Gardner v. Bibbins, 1833, V. S. Authority of consuls regarding imprisonment of members of crew; see (The) William Harris, 1837, TJ. S.; Tingle v. Tucker, 1849. TJ. S.; Chester v. Benner, 1871, TJ. S.; (The) Coriolanns, 1839, TJ. S.; Jordan v. Williams, 1851, TJ. S. Consul's acts in disposing of wages; see Hindsgaul v. The Lyman D. Foster, 1898, TJ. S. Retention of wages; see Graves v. The W. F. Babcock, 1897, TJ. S. Consul cannot discharge seamen in cases of disability aris- ing from wounds contracted in the service of the ship ; see Gallon V. Williams, 1871, U. S. C(ji)surs action in discharging seamen; see Coffin v. Weld, 1871, TJ. S. Duties and responsibility of consul in discharge of seamen; see Tingle v. Tucker, 1849, TJ. S. Authority of consul in discharging seamen and value of his certificate of the conditions imder which it was done; see Lamb v. Briard, 1848, TJ. S. Nature of consul's act in discharging seamen and the value of his certificate; see Campbell v. Steamer TJncle Sam, 1856, TJ. S. ; Hutchinson v. Coombs, 1825, TJ. S.; Jenks v. Cox, 1872, TJ. S. Gives coi)y of consul's certificate in the case of discharge of seamen ; see (The) Paul Revere, 1882, TJ. S. Jurisdiction of consuls in case of crime committed on board of a ship of the sending state; see Atty. Gen. Vol. VIII, p. 382, 1857, TJ. S. 740 COMPENDIUM The discretionary power given by statute to consuls regard- ing the discharge of seamen is not reviewable except by some competent court ; see Atty. Gen. Vol. XVI, p. 268, 1879, IT. S. The jurisdiction of consuls over seamen is reciprocally grant- ed because of the advantage to each coimtry ; see Norberg v. Hill- greu, 1846, U. S. When the shipmaster is required to deposit the ship's reg- ister with the consul and the object of this deposit; see Atty. Gen. Vol. IV, p. 390, 1845, TJ. S. Discussion of the obligations of American ships to bring home destitute seamen ; see Atty. Gen. Vol. IV, p. 185, 1843, IT. S. French consul's jurisdiction limited to disputes on board ship not disturbing the police of the port ; see Atty. Gen. Vol. II, p. 379, 1830, U. S. The act of 1803 regarding the deposit of seamen's wages in the case of discharge abroad applies to a sailor too sick to con- tinue the voyage ; see Atty. Gen. Vol. I, p. 594, 1820, TJ. S. The master of an American vessel, sold in a foreign country on account of being stranded is not obliged to deposit three months' wages for crew with the consul; see Atty. Gen. Vol. I, p. 148, 1797, U. S. Consul's action in caring for shipwrecked sailors. Case in which he obtains wages from master to provide for wants of crew; see Atty. Gen. Vol. XIX, p. 22, 1887, U. S. Case in which the district court of California decided that sailors were destitute and made owners of ship repay as wages money which had been paid to consul to furnish sailors with ne- cessities; see Atty. Gen. Vol. XIX, p. 24, 1887, TJ. S. ""When a consul intervenes in a controversy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul;" see Atty. Gen. Vol. XXI, p. 201, 1895, U. S. The master of a ship has no power to discharge crew on his mere authority W'ithout the intervention of a consul; see Atty. Gen. Vol. VII, p. 349, 1855, TJ. S. "I am of the opinion that if Dowd was discharged by the consul-general because of unusual or cruel treatment, he is en- titled to the one month's extra wages allowed by statute, and that some reasonable discretion is to be permitted to the consular au- thority in determining this extra allowance in reference to ac- tual or anticipated ill-treatment and a discharge consequent thereon;" see Atty. Gen. Vol. XXII, p. 212, 1898, U. S. 741 CONSULAR FUNCTIONS Effect of the act of 1855 regarding the repatriation of sea- men ; see Atty. Gen. Vol. VII, p. 268, 1855, U. S. "When shipmasters are required to deposit register with con- suls; see Atty. Gen. Vol. V, p. 161. 1849, U, S. "The consul's certificate, obtained in the absence of the seaman, was not conclusive evidence of the fact of desertion;" see Lewis v. Jewhurst, 1866, G. B. Case in which a consul does an injustice to seaman in dis- charging him — consul's decision ordinarily entitled to full cred- ence but not when there was, according to the testimony, no hear- ing no judgment and no record ; see (The) Sachem, 1894, TJ. S. Court refused to take jurisdiction of case which consul had passed upon ; and discussed occasions when jurisdiction will be taken ; see Townshend v. The Mina, 1868, TJ. S. Consul advised master to take back sailor who had been ab- sent and when master refused certified that there was, in his be- lief, sufficient cause for a libel for wages and damages; see Hayes v. J. J. Wickwire, 1870, U. S. (B.) Conditions in which courts of the receiving state will take jur- isdiction over disputes between seamen and effect of consul's protest against the exercise of such jurisdiction Requisites for courts taking jurisdiction; see (The) Infanta, 1848, U. S. Effect of consul's opposition to the exercise of jurisdictions by courts of receiving state ; see (The) Havana, 1858, TJ. S. "Whether the consent of ambassador or consul-general is nec- essary to allow court to take jurisdiction;" see (The) Wilhelm Frederick, 1823, G. B. Juri.sdiction granted by treaty to consuls is intended to fur- nish a proper remedy and admiralty court may, in its discretion, take jurisdiction when no consul of the sending state is within the di.strict over which court exercises jurisdiction; see (The) Amalia, 1880, TJ. S. British court has discretion whether it will exercise juris- diction ; see (The) Nina, 1867, G. B.; (The) Leon XIII, 1883, G. B. Argument a contrairo niif^ht be made that the consent of con- sul is neces.sary; see (The) "Wilhelm Frederick, 1823, G. B. Court has di.scretion whether it will exercise jurisdiction and consul's protest cannot act as veto; see (The) Leon XIII, 1883, G. B.; Weiberg v. (The) St. Oloff, 1790, TJ. S.; Bernard v. Greene, 1874, TJ. S.; (The) Nina, 1867, G. B.; (The) Belgenland, 742 COMPENDIUM 1884, TJ. S. ; Bucker v. Klorkgeter, 1849, U. S. ; (The) Topsy, 1890, U. S. American court will take jurisdiction when an American citizen is one of the parties; see (The) Alnwick, 1904, TJ. S. ; The Falls of Keltic, 1902, U. S. ; (The) Neck, 1905, U. S. Conditions under which court will take jurisdiction over suit of an alien for wages ; see Davis v. Leslie, 1848, TJ. S. Act imposing penalty for pre-payment of sailor's wages ap- plies to foreign ships and foreign sailors; see Patterson v. Bark Eudora, 1903, TJ. S.; (The) Troop, 1902, TJ. S.; (The) Alnwick, 1904, TJ. S.; (The) Kestor, 1901, TJ. S. Protest of foreign consul prevented courts taking jurisdic- tion in the case of the breakup of a voyage ; see Orr v. (The) Ach- sah, 1849, U. S. United States court took jurisdiction of libel for wages where crew desert after British second vice-consul had ordered them to go to work; see (The) Lilian M. Vigus, 1879, TJ. S. Necessity of obtaining the consul's assent before court will take jurisdiction of certain suits ; see (The) Adolph, 1835, G. B. Court will not take jurisdiction against consul's protest in dispute for seamen's M^ages; see Becherdass Amhaidass, 1871, TJ. S.; Robert Bitson, 1871, TJ. S. Authority of Danish consul where stipulation was made by captain to bind master to comply with the engagement entered into ; see (The) Willendson v. The Forsoket, 1801, TJ. S. Court indisposed to take jurisdiction except with consent of consul; see (The) Courtney, 1810, G. B. British consul protests against exercise of jurisdiction and court refuses to take jurisdiction — Gives a copy of consul's pro- test; see Saunders v. (The) Victoria, 1854, TJ. S. Court refused to take jurisdiction against the protest of the British consul ; see Lynch v. Crowder, 1849, TJ. S. Competence of vice-consul to decide questions between sea- men. — Court refused to take jurisdiction; see (The) New City, 1891, U. S. Court took jurisdiction at the request of the consul; see (The) Sirius, 1891, U. S. Court accepts jurisdiction where no objection was made by consul; see Waitshoair v. The Craigend, 1890, TJ. S. Consuls in Great Britain must be notified before the court exercises jurisdiction ; see (The) Nina, 1867, G. B. ; (The) Leon XIII, 1883, G. B.; (The) Agincourt, 1877, G. B.; Golubchick, 1840, G. B.; (The) Herzogin Marie, 1861, G. B. 743 CONSULAR FUNCTIONS EflFect of consul's protest; see (The) Herzogin Marie, 1861, G. B. Presence of consul when ships are visited by the local au- thorities ; see Atty. Gen. Vol. VIII, p. 88, 1856, TJ. S. Speaks of cousul's consent prior to the courts taking juris- diction in a matter concerning seamen ; see (The) Wilhelm Fred- erick, 1823, G. B. Court will not usually entertain suit of foreign seaman for wages when consul objects; see (The) Franz and Elize, 1861, G. B. Court took jurisdiction over suit for seaman's wages against the request of consul on the ground that such action was likely to save time, expense, and perhaps further litigation; see (The) Lady Furness, 1897, V. S. On the ground of comity district court heeded British con- sul's petition not to take jurisdiction; see (The) Walter D. Wal- let, 1895, TJ. S. A protest by a foreign consul against the prosecution of a suit for wages against a ship of his country does not deprive the court of its jurisdiction ; but makes the exercise of that jurisdic- tion discretionary; see (The) Octavie, 1863, G. B. (C.) Extent and limit of consular jurisdiction Consular jurisdiction over ships and seamen ; see Harrison v. Vose, 1849, U. S.; (The) Infanta, 1848, U. S.; (The) Herzogin Marie, 1861, G. B. Basis and extent of consul's judicial power; see Dainese v. Hale, 1875, U. S. Right of French consul to imprison members of crew; see Dallemagne v. Moisan, 1905, TJ. S. Italian treaty gives consul jurisdiction in questions of dis- pute about wages, but perhaps does not extend to suits for in- juries received; see (The) Salomoni, 1886, TJ. S. Jurisdiction over seamen's disputes granted by treaty to consul does not extend to cases of homicide and felonies; see Wildenhus's Case, 1886, TJ. S. American court allowed jurisdiction of consul over .seamen even when American citizens; .see (The) Welhaven, 1892, TJ. S.; (The) Marie, 1892, TJ. S. Unless .seaman is legally enrolled he is not a member of the crew and the consul has no jurisdiction over him; see (The) Neck, 1905, TJ. S. 744 COMPENDIUM Official acts of consul in the discharge of his duties in re- gard to seamen cannot be called in question by his home courts; see Patch v. Marshall, 1853, U. S. Case in which consul has by the law of Brazil authority to sell damaged goods; see Waldron v. Coombe, 1810, G. B. Right of a foreign consul, in the United States to sit as judge or arbitrator; see (In re) Aubrey, 1885 U. S. Foreigners in the receiving state are bound to some extent by the acts of their own government and in shipping matters by the act of their consul ; see (The) Herzogin Marie, 1861, G. B. Consul is not a judicial officer; see Waldron v. Coombe, 1810, G. B. Consuls have certain judicial functions; see Barbuit's Case, 1737, G. B. Reasons why consul is better placed to look after the com- pliance Avith the legislation of the sending state; see (The) In- fanta, 1848, U. S. Consul's jurisdiction over members of crew limited to mat- ters which form part of mariner's contract and duties; see (The) Two Friends, 1799, G. B. American court refused to take jurisdiction in the case of a dispute between two French citizens who were referred to their consul; the latter being given jurisdiction by treaty; see God- dard v. Luby, 1795, U. S. Case in which court declared that a consul had no right to receive fees when acting upon instructions from his government; see De Lema v. Haldimand, 1824, G. B. Consideration was shown to the consul by making him an as- sessor; see (The) Hanava, 1858, U. S. Court admits affidavits taken before the British consul in Russia because magistrates of Russia are not empowered to take affidavits; see (In re) Daly, 1841, G. B. Presence of consul when ships are visited by the local au- thorities ; see Atty. Gen. Vol. VIII, p. 88, 1856, TJ. S. Consuls have no judicial authority ; see Atty. Gen. Vol. VIII, p. 77, 1856, U. S. Consuls have no judicial power but act as arbitrators in cer- tain cases; see Atty. Gen. Vol. VIII, p. 382, 1857, TJ. S. Discussion of the jurisdiction of consuls; see Atty. Gen. Vol. VIII, p. 382, 1857, U. S. Consuls are not judicial officers; see Atty. Gen. Vol. VIII, p. 381, 1857, U. S. 745 CONSULAK FUNCTIONS Jurisdictions of consuls in case of crimes committed on board ship of sending state; see Atty. Gen. Vol. VIII, p. 382, 1857, TJ. S. Consul calls upon courts of receiving state to put into effect decree of sending state dispossessing master of ship; see (The) Evangelistria. 1876, G. B. Officer who arrested master ^\ithout direction of consul lia- ble; see Telefsen v. Fee, 1897, TJ, S. Jurisdiction of consul for the condemnation of a prize not valid ; see Flad Oyen, 1799, G. B. Consuls have no right to condemn prizes; see Glass v. (The) Betsey. 1794, U. S. Consuls cannot perform marriages contrarily to law of the receiving state ; see Atty. Gen. Vol. VII, p. 3, 1854, TJ. S. The consul's action when caring for estates and looking after the interests of owners in prize proceedings is of the nature of surveillance and is not judicial; see Atty. Gen. Vol. VIII, p. 101, 1856, TJ. S. The district court of California decided that sailors were destitute and made owners of ship repay as wages money which had been paid to consul to furnish sailors with necessities; see Atty. Gen. Vol. XIX, p. 24, 1887, U. S. "AMien a consul intervenes in a controversy between master and seamen, by mutual consent of the disputants, he acts as an arbitrator and not as consul;" see Atty. Gen. Vol. XXI, p. 201, 1888, TJ. S. "I am of the opinion that if Dowd was discharged by the consul-general because of unusual or cruel treatment, he is en- titled to the one month's extra wages allowed by statute, and that some reasonable discretion is to be permitted to the con- sular authority in determining this extra allowance in reference to actual or anticipated ill-treatment and a discharge consequent thereon;" see Atty. Gen. Vol. XXII, p. 212, 1898, TJ. S. It is clear that under this treaty system between these three Latin countries — Spain, Italy, and France — the consul is to ex- ercise an exterritorial judicial power and to be the real adminis- trator of the estate; but that disputes in which the country where the death occurred has some special interest, as where its own people or the people of a third country whom it should pro- tect are concerned, are to be carved out of his jurisdiction and settled by the local judicial authority, leaving him to resume his functions when these special questions have been determined;" see Atty. Gen. Vol. XXIII. p. 104, 1900, TJ. S. Spanish consuls in foreign countries are authorized to exer- 746 COMPENDIUM cise all the powers of courts of first instance, if permitted to do so by the laws of the country to which they are accredited ; see Atty. Gen. Vol. XXIII, p. 105 and p. 114, 1900, TJ. S. Conditions covering the issuance of letters rogatory and open commissions ; see Atty. Gen. Vol. XXIV, p. 70, 1902, II. S. Spanish consuls in Great Britain are instructed to obtain the testimony of voluntary witnesses by proceedings before a mag- istrate, but to attend to citations themselves; see Atty. Gen. Vol. XXIII, p. 114, 1900, U. S. French consul's jurisdiction limited to disputes on board ship not disturbing the police of the port ; see Atty. Gen. Vol. II, p. 379, 1830, TJ. S. The president has no authority to extend the judicial power of foreign consuls on the ground of reciprocal treatment; see Atty. Gen. Vol. II, p. 383, 1830, IT. S. Marshals are not required by law to execute the sentence of a French consul, arising under the 12th article of the convention with France ; see Atty. Gen. Vol. I, p. 43, 1794, IT. S. Case in which deserter was forcibly taken from the custody of the United States marshal while the latter was, upon the writ- ten order of the consul, delivering him to the master of the ves- sel — Court held that the law required the delivery to the consul and that acting under the direction of the consul the marshal was not engaged in the performance of a duty enjoined by law. Hence the defendants could not be punished for obstructing an officer in the performance of a duty enjoined by law ; see United States V. Kelly, 1901, TJ. S. Case in which a consul does an injustice to seaman in dis- charging him — Consuls decision ordinarily entitled to full cred- ence, but not when there was according to the testimony no hearing, no judgment and no record; see (The) Sachem, 1894, U.S. "We know of no law, federal or state, which vests national representatives with the power of serving judicial process of state courts on parties within their sphere of representative ac- tion;" see Dumas, Interdiction of Joseph, 1880, U. S. Court praised consul, who did not atcempt to interfere with the libellant's invocation of the interposition of the court but merely suggested the improbability that the court would enter- tain jurisdiction ; see Townshend v. The Mina, 1868, U. S. Consul advises master to take back sailor who had been ab- sent and when master refused certified that there was in his be- lief sufficient cause for a libel for wages and damages ; see Hayes V. J. J. Wickwire, 1870, U. S. 747 CONSULAR FUNCTIONS (D.) Jurisdiction of consul over crimes committed on board Consul's protest against removal from ship of prisoners placed on board for conveyance to the United States to be tried ; see Tingle v. Tucker, 1849, U. S. Authority of consuls to send home seamen for trial; see Matthews v. Offley. 1837, TJ. S. Consul sent member of crew home in irons for manslaughter ; see Smith v. Treat, 1845. TJ. S. Jurisdiction of consul over ship does not extend to homicide and felonies; see (The) Belgenland, 1884, TJ. S. The Italian treaty does not perhaps give jurisdiction to con- sul in case of injuries received; see (The) Salomoni, 1886, TJ. S. Jurisdiction of consuls over crew for crimes; see Atty. Gen. Vol. VIII, p. 73, 1856, TJ. S. Jurisdiction of consuls in case of crime committed on board a ship of sending state; see Atty. Gen. Vol. VIII, p. 382, 1857, TJ. S. (E.) Cases in which consuls granted jurisdiction by reason of treaty stipulations See (Ex parte) Newman, 1871, TJ. S.; Villeneuve v. Barrion, 1795, U. S. ; Caignet v. Pettit, 1795, TJ. S. ; (The) Elwin Kreplin, 1870. TJ. S.; (The) Burchard, 1890, TJ. S.; Atty. Gen. Vol. XII, p. 465, 1868, U. S. ; Norberg v. Hillgreu, 1846, TJ. S. Court refused to extend to Sweden by virtue of the most favored nation clause the rights of jurisdiction granted to Frpnch consuls in a special treaty; see Weiberg v. (The) St. Oloff, 1790, TJ. S. FUNCTIONS IN CAKING FOR THE GENERAL INTERESTS OF HU- MANITY AND OF FRIENDLY STATES r Consul of a third state may, with the consent of his gov- ernment, perform ordinary and routine duties of an American consul; see Atty. Gen. Vol. XXII, p. 76, 1898, U. S. Where the consuls of a third power are entrusted with the interests of sending state their action is generally confined to ex- tf'ndin', or generally by act of congress; see Atty. Gen. Vol. VII, p. 343, 1855, U. S. Consul is legally incapable of solemnizing marriage without authority of the local government; see Atty. Gen. Vol. VII, p. 343, 1855, TJ. S. (F.) Right of consul to waive the enjoyment of immunities Immunity from arrest when given is to protect the in- terests of the sending state and cannot be waived by the consul, nor is it dependent upon an individual's belief that he is consul or upon his acting bona fide as consul. The grant of the im- munity is dependent upon its usefulness to the sending state; see Marshall v. Critico, 1808, G. B. Consul cannot waive privileges of jurisdiction in federal court; see Miller v. Van Loben Sells, 1885, U. S.; Wilcox v. Luco, 1896, U. S. ; 45 Pac. Rep. 676 was reversed in 50 Pac. Rep. 758. Consul may not renounce privilege advantageous to his government; see Barbuit's Case, 1737, G. B.; Davis v. Packard, 1833, TJ. S.; Boers v. Preston, 1883, TJ. S.; Valarino v. Thompson, 1853, U. S. Consul may waive his right to have a suit against him re- viewed by federal court; see Wilcox v. Luco, 1897, TJ. S. IMMUNITIES MAKING FOR THE RESPECT OF THE CONSULAR OFFICE Consul was made an assessor; see (The) Havana, 1858, U. S. Consul in charge of business of legation not necessarily en- titled to diplomatic immimities; see (In re) Baiz, 1889, U. S. 753 CONSULAR IMMUNITIES National courtesy will prompt the courts of the receiving state to hesitate in making the consul's official acts the subject of comment ; see Norberg v. Hillgreu, 1846, XJ. S. Procedure to be followed by a foreign consul who wishes to appeal to the United States federal courts to punish insult of- fered to him ; see Atty. Gen. Vol. I, p. 43, 1794, TJ. S. Insults offered by a tumultuous crowd to the consul before his residence are not covered by the act of April 30, 1790, which pun- ishes for any infraction of the laws of nations, by offering vio- lence to the person of an ambassador or other public ministers as consul is not a public minister; see Atty. Gen. Vol. I, p. 42, 1794, U. S. FORCIBLE ASSISTANCE GIVEN TO THE CONSUL BY AUTHORITIES OF THE RECEIVING STATE Procedure to be followed by foreign consul who wishes to appeal to the United States federal courts to punish insult of- fered to him; see Atty. Gen. Vol. I, p. 43, 1794, U. S. Court declares that it has no authority to compel witnesses to testify before Spanish consul; see Spanish Consul's Petition, 1867, U. S. Case in which deserter was forcibly taken from the custody of the United States marshal while the latter was, upon the written order of the consul, delivering him to the master of the vessel. Court held that the law required the delivery to the consul and that acting under the direction of the consul the mar- shal was not in the performance of a duty enjoined by law. Hence the defendants could not be punished for obstructing an officer in the performance of a duty enjoined by law; see United States v. Kelly, 1901, U. S. PERSONAL INVIOLABILITY OF CONSUL (A.) Protection from assault Where an individual is pursued for an assault it is not a case "affecting consuls" in the meaning of the constitution of the United States; see United States v. Ortega, 1826, U. S. Filipino was imprisoned for striking the Spanish consul; see United States v. Lucinario, 1906, U. S. Consul must look for the protection of his person and prop- erty to the laws of the state in which he resides; see Atty. Gen. Vol. XIX, p. 16, 1887, U. S. 754 COMPENDIUM Consuls are not public ministers but enjoy certain privileges such as for safe conduct; see Viveash v, Becker, 1814, G. B. Insults offered by a tumultuous crowd to the consul before his residence are not covered by the act of April 30, 1790, which pimishes for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public minis- ters as consul is not a public minister ; see Atty. Gen. Vol. I, p. 42, 1794, IT. S. (B.) Consular domicile Consul does not lose his domicile in sending state ; see Sharpe and Sharpe v. Crispin, 1869, G. B. ; Niboyet v. Niboyet, 1878, G. B. An individual domiciled in the receiving state does not lose his domicile by becoming a consul; see Sharpe and Sharpe v. Cris- pin, 1869, G, B. Despatched consuls retain their domicile in the sending state ; see Arnold v. United Insurance Company, 1800, TJ. S. Consul general for Scotland appointed deputies. Court de- clared that if the deputies were now acting it would be a " strong circumstance to affect him with a British residence, as long as there are persons acting in an official station here, and deriving their authority from him;" see Dree Gebroeders v. Vandyk, 1802, G. B. (C.) Jurisdiction of the courts of the receiving state in the case of consul's official acts Reasons w^hy the courts of receiving state should not decide as to the fulfillment by the consul of the regulations enacted by the sending state; see (The) Infanta, 1848, IT. S. British consul claimed that his official acts should not be examined by the courts of the receiving state; see Saunders V. The Victoria, 1854, U. S. The consul is not eivily responsible for an official act; see Jones V. Le Tombe, 1798, IT. S. The American courts will not call in question the official acts of a British consul respecting the crew and vessel done in a for- eign port. In this case the seaman concerned was an American; see Patch v. Marshall, 1853, IT. S. Consul acting in an official capacit}^ refused to deliver up papers of the ship, Betty Cathcart, and the court refused to compel him to do so; see (The) Betty Cathcart, 1799, G. B. National courtesy will prompt the courts of the receiving 755 CONSULAR IMMUNITIES state to hesitate in making the consul's official acts the subject of comment ; see Norberg v. Hillgreu, 1846, U. S. Consuls may be indicted for infractions of the municipal law even when acting officially ; see Atty. Gen. Vol. VII, p. 384, 1855, U.S. Consul is subject to the jurisdiction of the receiving state even when acting officially; see Atty. Gen. Vol. I, p. 78, 1797, U. S. Consul not required to give bail when a suit is brought against him for an official act in which he has acted as commer- cial agent of his country ; see Atty. Gen. Vol. I, p. 78, 1797, U. S. Though it is well settled in the United States as in Great Britain that a person acting under a commission from the sov- ereign of a foreign nation is not amenable for what he does in pur- suance of his commission, -to any judiciary tribunal in the United States, nevertheless the executive cannot interpose with the judi- ciary proceedings between an individual and the official holding the commission ; see Atty. Gen. Vol. 1, p. 81, 1797, IT. S. Although the transaction was of a public nature concerning the republic of France and the consul-general acted as the com- mercial agent of the republic, "yet the President of the United States has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice;" see Atty. Gen. Vol. I, 78, 1797, ¥. S. (D.) Protection of individuals of the receiving state against acts of consuls Case in which consul was sued for false imprisonment be- cause of illegal arrest secured by consul; see Castro v. De Uriarte, 1883, U. S. United States court will not call in question the official act of Briti.sh consul in foreign port even when American seamen are concerned; see Patch v. Marshall, 1853, U. S. Right of individual to demand the performance of certain services of a consul ; see De Lema v. Haldimand, 1824, G. B. "It is clear that under this treaty system between these three Latin countries — Spain, Italy, and France — the consul is to ex- ercise an exterritorial judicial power and to be the real adminis- trator of the estate ; but that disputes in which the country where the death occurred has some special interest, as where its own people or the people of a third country whom it should protect are concerned, are to be carved out of his jurisdiction and set- 756 COMPENDIUM tied by the local judicial authority, leaving him to resume his functions when these special questions have been determined;" see Atty. Gen. Vol. XXIII, p. 104, 1900, U. S. (E.) Protection of individuals of the sending state against acts of consul Foreign consul may be sued for fees illegally collected; see Lorway v. Lousada, 1866, U. S. Receiving state is not bound to protect individuals against acts of their government and consuls; see (The) Herzogin Marie, 1861, a. B. Courts of the United States are not required to protect aliens against acts of their own consul; see (In re) Lobrasciano's Estate, 1902, U. S. Determination of what constitutes an official act; see Mosby V. United States, 1888, U. S. The consent of consul necessary in certain cases to prosecute in the courts of the receiving state ; see (The) Infanta, 1848, U. S. It is the duty of the United States to protect the public against the exercise of consular duties, even voluntary ones, by any person who has not been authorized to do so by congress ; see Atty. Gen. Vol. XX, p. 93, 1891, U. S. The remedy of individuals suffering from wrongs or short- comings of a consul of the United States is against the consul and the sureties on his bond ; see Atty. Gen. Vol. XIX, p. 24, 1887, U. S. INVIOLABILITY OF CONSULATE (A.) Inviolability of archives American court refused to compel French consul to give up papers of ship w^hich had been illegally condemned; see (The) Betty Cathcart, 1799, G. B. Inviolability of archives; see Kessler v. Best, 1903, U. S.; (In re) Dillon, 1854, U. S. RIGHT TO COMMUNICATE WITH AUTHORITIES AND TO HAVE SUCH COMMUNICATION TREATED WITH DUE CONSIDERA- TION ' * Officious ' ' letters of British consuls were not allowed to be read in court when the United States government felt that the British government was attempting to violate the neutrality laws of the United States; see Atty. Gen. Vol. VIII, p. 469, 1855, U. S. 757 CONSULAR IMMUNITIES "^lany cogent reasons dictate that we should insist on the right to address the colonial or provincial government;" see Atty. Gen. Vol. VII, p. 344, 1855, U. S. ^Vhen no diplomatic representative is present a consul should have the right to place himself in direct communication with the political authority of such government; see Atty. Gen. Vol. VII, p. 344, 1855, IT. S. "^Ve have or may have a minister of whatever title, who is of course, by public law, superior in rank to consuls, and their medium of commimieation with the government;" see Atty. Gen. Vol. VII, p. 275, 1855, U. S. "A correspondence ensued between the captain general of Cuba and Mr. Trist, (United States consul), which terminated in a friendly disposition of the question, whether the seizure of the vessel in the port of Havana was a violation of the jurisdic- tional rights of Spain;" see Atty. Gen. Vol. Ill, p. 406, 1839, IT. S. IMMUNITIES TO PREVENT INTERRUPTION* It is for the executive and not for the courts to determine who are public ministers; see (In re) Baiz, 1889, U. S. Procedure to be followed by consul who wishes to plead immunity from jurisdiction ; see Atty. Gen. Vol. I, p. 407, 1820, U. S. (A.) Consuls are subject to the jurisdiction of the courts of the re- ceiving state Consuls are subject to the territorial jurisdiction ; see Bar- buit's Case, 1737, G. B. ; Atty. Gen. Vol. VII, p. 21, 1854, U. S. Consuls have no immunity from criminal prosecution; see Commonwealth v. Kosloff, 1816, U. S. ; United States v. Ravara, 1793, U. S. A consul was declared to be subject to the jurisdiction of the receiving state in certain cases — A contrario they would seem to enjoy a certain exemption in others; see Arnold v. (The) United Insurance Company, 1800, U. S. Court takf's jurisdiction in cases where consul brings suit for fees; see De Lema v. Haldimand, 1824, G. B. Consuls are subject to the jurisdiction of the courts of the receiving state; see State v. De La Foret, 1820, U. S. * Exemptionfl from, and modifications of, the legal procedure accorded to congulB BO EB Dot to hinder the discharge of their functions. 758 COMPENDIUM In the case of a civil individual suit, ''of which the judiciary- has possession, the president has no authority to interpose in the case, either by arresting the proceedings, by punishing the plain- tiff, or even ordering a prosecution against him, unless the step which he has taken be in violation of some law or statute;" see Atty. Gen. Vol. I, p. 407, U. S. Consul subject to the jurisdiction of the receiving state civ- illy and criminally ; see Atty. Gen. Vol. I, p. 410, 1820, U. S. Consuls have no immunities beyond persons coming to coun- try in private capacity and in civil and criminal cases, they are equally subject to the laws of the receiving state; see Atty. Gen. Vol. II, p. 725, 1835, U. S. Nothing in the convention with France gives the consul free- dom from suit in the American courts; see Atty. Gen. Vol. I, p. 77, 1797, U. S. Although the transaction was of a public nature concerning the republic of France and the consul-general acted as the com- mercial agent of the republic, "yet the president of the United States has no constitutional right to interpose his authority, but must leave the matter to the tribunals of justice;" see Atty. Gen. Vol. I, p. 78, 1797, IT. S. Consul is subject to jurisdiction of receiving state even when acting officially; see Atty. Gen. Vol. I, p. 78, 1797, U. S. Though "it is well settled in the United States as in Great Britain that a person acting under a commission from the sov- ereign of a foreign nation is not amenable for what he does in pursuance of his commission, to any judiciary tribunal in the United States," nevertheless the executive cannot interpose with the judiciary proceedings between an individual and the official holding the commission ; see Atty. Gen. Vol. I, p. 81, 1797, IT. S. Procedure to be followed by consul who wishes to plead im- munity from jurisdiction; see Atty. Gen. Vol. I, p. 407, 1820, TJ. S. Lord Ellenborough thinks that as consul may appoint vice- consuls to perform his functions no great inconvenience would result from his imprisonment ; see Viveash v. Becker, 1814, G. B. Consul not entitled to privilege from arrest; see Viveash v. Becker, 1814, G. B. (B.) Liability of consuls to arrest Consuls are not public ministers and are subject to arrest for debt; see Viveash v. Becker, 1814, G. B. 759 CONSULAR I^mUNITIES Discussion of consul's liability to arrest for civil process; see Clarke v. Cretico, 1808, G. B. ^lansfield says consul's duties are not such as can be per- formed in prison; see Clarke v. Cretico, 1808, G. B. Lord Ellenborougli seems to infer a contrario that the consul- general is entitled to immunity from arrest; see Marshall v. Cre- tico. 1808. G. B, Lnnuniity from arrest when given is to protect the interest of sending state and cannot be waived by consul — it is not de- pendent upon individuals belief that he is a consul nor upon his acting bona fide as such — the grant of the immunity is dependent upon its use to the sending state; see Marshall v. Cretico, 1808, G. B. (C.) Giving of testimony See United States v. Trumbull, 1891, U. S.; Biaz v. Molo, 1899. U. S.; (In re) Dillon, 1854, U. S. Consul cannot be compelled to give testimony in court con- trary to the terms of the treaty; see (In re) Billion, 1854, TJ. S.; Biaz v. Malo, 1899, U. S. "Officious" letters of British consuls were not allowed to be read in court when the United States government felt that the British government was attempting to violate the neutrality laws of the United States ; see Atty. Gen. Vol. IX, p. 469, 1860, TJ. S. "It is clear that he (consul) has no right, by any rule of public law, or international comity, to be heard in the case by the court, otherwi.se than as a witness, whether enforced or volun- tary;" see Atty. Gen. Vol. VIII, p. 470, 1855, TJ. S. (D.) To what courts consuls in the United States are subject. Exemption from jurisdiction of .state courts is a privilege of the United States government and may not be waived by the con- sul or his government; see Valarino v. Thompson, 1853, U. S. The effect of the jurisdiction of federal courts is that the consul's case remains within the control of the general govern- ment which may deal with it according to the convenience or the exigencies of its foreign policy, without impediment from the authority of any of the individual states of the Union; see Atty. Gen. Vol. VH, p. 384, 1855, U. S. Case in which the immunity granted a consul may not be waived by the consul and reasons why consul may not waive the immunity; sec Marshall v. Cretico, 1808, G. B. 760 COMPENDIUM It does not seem to be decided whether the privilege of jur- isdiction in the federal courts extends to citizens of the United States, consuls for foreign states ; see Atty. Gen. Vol. VIII, p. 172, 1856, U. S. Thorough discussion of the jurisdiction of state and federal courts over consuls ; see Mannhardt v. Soderstrom, 1806, U. S. In a case where a civil suit was brought against a consul he could plead to jurisdiction of court and bring the question, if he chose, before the supreme court of the nation; see Atty. Gen. Vol. I, p. 407, 1820, U. S. Discussion of the jurisdiction of the federal courts over con- suls; see Cohens v. Virginia, 1821, U. S. (E.) Cases in which state courts were declared to have jurisdiction over suits concerning consuls State courts have jurisdiction over suits brought by a con- sul; see Sagory v. Wissman, 1868, TJ. S. State courts have jurisdiction over consuls; see State v. De la Foret, 1820, TJ. S. State courts have jurisdiction over consuls and the federal courts' jurisdiction is not exclusive; see Scott v. Hohe, 1900, TJ. S. The jurisdiction of the state courts in criminal suits and extradi- tion proceedings ; see (In re) lasigi, 1897, TJ. S. State courts have jurisdiction as well as federal courts; see Redmond v. Smith, 1899, TJ. S. Federal courts do not, since the repeal of the 8th clause of section 711 of revised statutes, have exclusive jurisdiction over consuls and civil suits may be brought against them in state courts; see De Give v. Grand Rapids Furniture Company, 1894, U. S. State courts have concurrent jurisdiction over consuls since 1875 ; see Wilcox v. luco 50 Pac. Rep. 758, 1897, TJ. S. Discussion of the jurisdiction of state and federal courts over consuls ; see Cohens v. Virginia, 1821, TJ. S. If constitution were interpreted to give supreme court juris- diction in cases of crimes committed by consuls it w^ould defeat the clause directing "that all crimes shall be tried in the state where they are committed;" see Atty. Gen. Vol. I, p. 42, 1794, TT. S. State courts are not incompetent when a consul, who is sum- moned as a garnishee is put in the attitude of a defendant; see Kidderlin v. Meyer, 1838, TJ. S. 761 CONSULAR IIVIMUNITIES (F.) State courts do not have jurisdiction over consuls See Mannhardt v. Soderstrom, 1806, TJ. S. ; Saint Luke's Hos- pital V. Barclay. 1855, TJ. S. ; Davis v. Packard, 1833, U. S.; Boers v. Preston. 1883. TJ. S.; Sartori v. Hamilton, 1832, TJ. S.; Valarino V. Thompson, 1853, TJ. S. ; McKay v. Garcia, 1873, TJ. S. State courts have no .inrisdiction over consuls ever since 1875: see Wilcox v. Luco, 45 Pac. Rep. 676 (reversed in Wilcox v. Luco, 50 Pac. Rep. 758), 1896, TJ. S. Competence of state courts to continue suit when defendant has become consul since its commencement; see Coppell v. Hall, 1868, TJ. S. Consuls are not subject to state courts; see Dissenting Opin- ion in State v. De la Foret, 1820, TJ. S. Consul not subject to jurisdiction in state courts — Procedure to be followed to obtain relief when suit has been brought against him in a state court; see Durand v, Halbach, 1835, TJ. S.; Davis v. Packard, 1833, U. S. Consul cannot be examined in a state court for a judgment debtor and he cannot be attached for refusal to obey an order for examination ; see Griffin v. Dominguez, 1853, TJ. S. One object of the provision of the constitution regarding suits affecting consuls "was to prevent the harassing of foreign ministers and consuls in the state courts;" see (In the Matter of) Aycinena, 1848, TJ. S. State courts do not have jurisdiction of suits affecting con- suls; see (In the Matter of) Aycinena, 1848, TJ. S. (G.) Federal courts have jurisdiction over consuls Sf'f Bixby v. Janssen, 1869, TJ. S.; Froment v. Duclos, 1887, TJ. S.; TJnited States v. Ravara, 1793, TJ. S.; Graham v. Stucken, 1857, TJ. S.; Saint Luke's Hospital v. Barclay, 1855, TJ. S. ; Boers v. Preston. 1883. TJ. S. ; Cohens v. Virginia, 1821, TJ. S.; Atty. Gen. Vol. VII. p. 22, 1854, U. S. A case against a person for assaulting a consul, is not a case "affecting consuls" under the con.stitution ; see TJnited States v. Ortega. 1826. V. S. Federal court is competent even when consul is co-defend- ant; see Valarino v. Thompson, 1853, TJ. S. "On the other hand, the constitution accords to every foreign r-onsi)l thf privilege to bring suit in the federal courts;" see Atty. Gen. Vol. VIII. p. 172, 1856, TJ. S. 762 COMPENDIUM Inferior federal courts are not excluded from jurisdiction in cases concerning a consul ; see Gittings v. Crawford, 1838, TJ. S. Jurisdiction of the circuit court over consuls; see Pooley v. luco, 1896, U. S. (H.) Right of consul to waive jurisdiction of federal courts in cases affecting consuls A consul may waive his right to have suit against him re- viewed by the federal court ; see Wilcox v. Luco, 1896, TJ. S. A consul may waive his exemption from the jurisdiction of the state courts but after pleading to the merits he cannot avail himself of the privilege by affidavit upon special motion; see riynn v. Stoughton, 1848, TJ. S. Consul may waive right of jurisdiction by federal courts; see Hall v. Young, 1825, TJ. S. Consul's privilege of jurisdiction by the federal courts is not waived by failure to plead his exemption from the jurisdic- tion of the state courts ; see Miller v. Van Loben Sells, 1885, TJ. S. Where the fact that the defendant is a consul does not ap- pear upon the record, it is a waiver of the right to jurisdiction by the federal court ; see Hall v. Young, 1825, TJ. S. Exemption of consul from liability to be sued in a state court is not a privilege of the consul or of his sovereign, but of the United States government, and, therefore, it cannot be re- nounced by the consul; see Valarino v. Thompson, 1853, TJ. S. Reasons why consul may not waive immunities; see Marshall V. Critico, 1808, G. B. The exemption from suit in state courts is not the consul's personal privilege — It belongs to the United States and cannot be waived by any act or default of the consul ; see Griffin v. Domin- guez, 1853, TJ. S. IMMUNITIES OF CONSULAR AGENTS' Consular agents (trading or merchant consuls) have no right to a favored treatment in matters relating to their mercantile transactions; see (The) Charlotte, 1804, G. B. ; Albretcht v. Suss- man, 1813, G. B. ; (The) Indian Chief, 1800. G. B. ; (The) Pioneer, 1863, U. S.; (The) Josephine, 1801, G. B.; (The) President, 1804, G. B.; (The) Falcon, 1805, G. B.; Scott v. Hobe, 1900, U. S. ^ Consular agent (agent consulaire) is the term recommended by the Institute of International Law to designate consuls having some occupation besides their consular duties. 763 CONSULAR IMMUNITIES Reasons for differentiating the immunities accorded consuls and consular agents; see Atty. Gen. Vol. VIII, p. 174, 1856, U. S. Exemption from service on juries; see Atty. Gen. Vol. VIII, p. 169. 1856, IT. S. Exemption from military duty and service in the militia; see Atty. Gen. Vol. VIII, p. 169, 1856, U. S. It does not seem to be decided whether the privilege of jur- isdiction in the federal courts extends to citizens of the United States, consuls for foreign states; see Atty. Gen. Vol. VIII, p. 172, 1856. TJ. S. Meaning of term "Consular Agent;" see Atty. Gen. Vol. VII, p. 246 and 262. 1855, TJ. S. ORGANIZATION (A.) Appointment Disadvantages of employing consular agent; see (The) Coriolanus, 1839, U. S. Advantages of employing consular agents; see Atty. Gen. Vol. VII, p. 262, 1855, TJ. S. "But their appointment remained unchangeably one of the organic powers of the executive; derived from the constitution, not from any act of congress;" see Atty. Gen. Vol. VII, p. 249, 1855, TJ. S. ' Advantages and disadvantages of employing consular agents ; see Atty. Gen. Vol. VIII, p. 174, 1856, U. S. "So when, by the late convention with France, or any other, it is said, in words, that officers wath consular functions and rights, vice-consuls and consular agents, may be appointed by the consul, it means appointed by the secretary of state on the pre- sentation of the consul, and removable by the same authority;" see Atty. Gen. Vol. VII, p. 276, 1855, U. S. Statutes regarding appointment of clerks are to be con- sidered as recommendations and not commands; see Atty. Gen. Vol. VII, p. 265, 1855, U. S. American consuls have not authority to appoint vice-consuls and consular agents; see Atty. Gen. Vol. VII, p. 276, 1855, TJ. S. Commercial agents, character of and reasons for appointing; see Atty. Gen. Vol. VII, p. 247, 1855, TJ. S. Lord Ellenborough thinks that as consul may appoint vice- con.suls to perform his functions no great inconvenience would result from his imprisonment; see Viveash v. Becker, 1814, G. B. 764 COMPENDIUM "I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person cannot possibly have any virtue in him as a public officer;" see Atty. Gen. Vol. XX, p. 92, 1891, U.S. Appointment of public ministers; see Atty. Gen. Vol. VII, p. 186, 1885, U. S. Expenses of the funeral of consul to the Barbary States paid by son acting as consul are a lawful charge on the contin- gent fund. If those expenses were proper to be incurred, and were incurred for the public service they ought to be repaid; see Atty. Gen. Vol. II, p. 523, 1832, TJ. S. Consul must take oath preceding entry upon duties to be entitled to salary. This oath cannot be taken before a consul of another state; see Otterbourg's Case, 1869, U. S. Consul appoints a successor and asks the charge d'affaires to ask for his exequatur; see Sturgis v. Slacum, 1836, TJ. S. Consul general for Scotland appointed deputies. Court de- clared that if the deputies were now acting it would be a "strong circumstance to affect him with a British residence, as long as there are persons acting in an official station here, and deriving their authority from him;" see Dree Gebroeders v. Vandyk, 1802, G. B. (B.) Salary See Fees; Regulations concerning fees. American consuls may not receive presents, even photo- graphs; see Atty. Gen. Vol. XXIV, p. 118, 1903, U. S. Salary of three months paid to widow of American consuls dying in office ; see Atty. (Jen. Vol. II, p. 521, 1832, TJ. S. Claim of vice-consul for salary of consul who was absent on leave ; see Wilbor v. United States, 1902, U. S. Case in which court declared that consul has no right to re- ceive fees when acting upon instructions from his government; see De Lema v. Haldimand, 1824, G. B. Salary of vice-consul when consul is absent; see Atty. Gen. Vol. VII, p. 261, 1855, U. S. Consul not entitled to extra pay for discharging the duties of a second office to which he had not received a regular ap- pointment as authorized by law; see Atty. Gen. Vol. IX, p. 507, 1860, U. S. Son of consul who acts as de facto consul whose acts have 765 ORGANIZATION been recognized by his government should receive the compensa- tion allowed by law ; see Atty. Gen. Vol. II, p. 523, 1832, U. S. Power to provide salary of consul in congress and an ad- vance in salary made by executive uncollectible; see Byers v. United States, 1887, U. S. United States is not responsible for contract made by consul for services. An appointment is necessary to entitle to the pay- ment of a salary ; see Azogne v. United States, 1891, U. S. American consul removed from office before the end of the fiscal year is only entitled to retain a part of the fees collected proportional to the part of the fiscal year during which he has held office; see Marston v. United States, 1896, U. S. (C.) Consular hierarchy Rights and duties of consul-general; see Atty. Gen. Vol. VII, p. 275, 1855, U. S. Enumeration and definition of various classes of consular of- ficers; see Atty. Gen. Vol. VII, p. 247, 1855, U. S. "We have or may have a minister, of whatever title, who is of course, by public law, superior in rank to consuls, and their medium of communication with the government;" see Atty. Gen. Vol. VII, p. 275, 1855, U. S. Special character and immimities of consular agent; see Marshall v. Critico, 1808, G. B. Reason for differentiating the immunities accorded consuls and consular agents; see Atty. Gen. Vol. VIII, p. 174, 1856, U. S. Competence of commercial agent to take acknowledgment under the law of Pennsylvania ; see Moore v. Miller, 1892, U. S. Officers competent to perform consular duties ; see Welsh V. Hill, 1807, U. S. Duties of vice-consul ; see (In re) Herres, 1887, U. S. Duties of deputy consul ; see (In re) Herres, 1887, U. S. Deputy consul may take acknowledgment or a power of at- torney ; see Stewart v. Linton, 1902, U. S. Acts which a consul may perform by procuration ; see Atty. Gen. Vol. VIII, p. 102, 1856, U. S. Consular agents, (or merchant consuls) incompetent to give certificates of certain matter relating to seamen ; see (The) Corio- lanus, 1839, U. S. President has power by statute to prescribe a tariff of fees for official services only. He also has the power to declare what are official services. Hence when he perscribes a qertain fee for 766 COMPENDIUM a service it is to be considered as declared ofificial ; see Atty. Gen. Vol. XIX, p. 198, 1888, U. S. "The suggestion and the request, coming from the depart- ment of state, were practically equivalent to a direction or com- mand;" see Leavitt v. United States, 1838, U. S. Power to provide salary of consul is in congress and an ad- vance in salary made by executive uncollectible; see Byers v. XTnited States, 1887, U. S. A vice and deputy consul has authority to acknowledge a power of attorney ; ' ' for while he acted in that capacity he was entitled to exercise the authority vested by law in the consul him- self ;" see Brown v. Landon, 1883, U. S. Consul general for Scotland appointed deputies. Court de- clared that if the deputies were now acting it would be a " strong circumstance to affect him with a British residence, as long as there are persons acting in an official station here, and deriving their authority from him;" see Dree Gehraeders v. Vandyk, 1802, G. B. Meaning of terms "Commercial Agent" and "Consular Agent;" see Schunior v. Russell, 1892, U. S. Consular agent is the representative of the consul; see Gould V. Staples, 1881, U. S. Consular agents are not consuls or commercial agents within the meaning of the laws regulating the consular system of the United States; see Atty. Gen. Vol. XII, p. 98, 1866, TJ. S. Consul is not responsible for money paid to clerk under di- rection of state department; see United States v. Owen, 1891, U. S. ' ' The consuls, like other officers of the United States are sub- ject to the regulations issued by the proper head of department ; ' ' see Atty. Gen. Vol. VII, p. 249, 1854, U. S. Advantages and disadvantages of employing consular agents ; see Atty. Gen. Vol. VIII, p. 174, 1856, U. S. Consul may act by procuration where caring for estates, etc. ; see Atty. Gen. Vol. VIII, p. 102, 1856, U. S. The notarial powers of a provisional British consul; see (In re) Darling, 1845, G. B. Enumeration of the different classes and varieties of con- sular officers ; see Atty. Gen. Vol. VII, p. 248, 1855, U. S. Character of, and reasons for appointing commercial agents; see Atty. Gen. Vol. VII, p. 247, 1855, U. S. Meaning of term ' ' Consular Agent ; ' ' see Atty. Gen. Vol. VII, p. 246 and 262, 1855, U. S. 767 ORGANIZATION (D.) Consular regulations Power of the president to make regulations to govern con- suls; see Gould v. Staples, 1866, TJ. S. ''They (consuls) like other executive officers of the United States are subject to regulations issued by the proper head of department;" see Atty. Gen. Vol. VII, p. 249, 1855, U. S. Power of the president to determine what constitutes an of- ficial fee ; see Atty. Gen. Vol. XXIV, p. 672, 1902, U. S. ; United States V. Mosby, 1889, U. S. American consuls may not receive presents; even photo- graphs; see Atty. Gen. Vol. XXIV, p. 118, 1903, U. S. The department of state must in case of doubt determine what constitutes an official fee and not the treasury department; see United States v. Badeau, 1887, U. S. No service is unofficial which consul has no right to refuse; see Atty. Gen. Vol. XXIV, p. 672, 1903, U. S. Where consul collects extra wages from master the secretary of the treasury can only review the arithmetical accuracy of ac- count ; see Atty. Gen. Vol. XVI, p. 268, 1879, U. S. Statutes regarding appointment of clerks are to be con- sidered as recommendations and not commands; see Atty. Gen. Vol. VII, p. 265, 1855, U. S. The attorney-general declared that in a judicial case in which there was a conflict between the department of state and the district court as to the meaning of the word "destitute" con- tained in the statute it should be settled by the courts; see Atty. Gen. Vol. XIX, p. 25, 1887, U. S. The president has power by statute to prescribe a tariff of fees for official services only. He also has the power to declare what are official services. Hence when he perscribes a certain fop for a sorvice it is to be considered as declared official; see Atty. Gen. Vol. XIX, p. 198, 1888, U. S. "American consul has no authority except what may be expressly granted by a law of congress, and acknowledged by the government in whose jurisdiction he resides;" see Atty. Gen. Vol. XIX, p. 197, 1888, U. S. "Fees for certificates to consular invoices may be rendered official by executive order, and specially included in the tariff of official fees;" see Atty. Gen. Vol. XIX, p. 229, 1889, U. S. "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful 768 COMPENDIUM consideration and ought not to be overruled without cogent rea- sons;" see Atty. Gen. XIX, p. 228, 1887, U. S. Interpretation put upon statute by the executive entrusted with its enforcement presumed to be correct; see Atty Gen. Vol. XXII, p. 163, 1898, U. S. "The suggestion and the request, coming from the depart- ment of state, were practically equivalent to a direction or com- mand ; see Leavitt v. United States, 1888. By the act of 1856 a consul cannot exercise diplomatic func» tions without authorization from president; see Otterbourg's Case, 1869, U. S. "By affixing his signature to an act or a treaty containing such phrase, the president does not effect any change in the constitution;" see Atty. Gen. Vol. VII, p. 276, 1855, U. S. In applying the statutes the president must take into con- sideration the other statutes wliich might conflict and the nature of the consuls duties; see Atty. Gen. Vol. VII, p. 267, 1855, TJ. S. Application of the act of 1855; see Atty. Gen. Vol. VII, p. 242, 1855, U. S. Consuls, subject to regulations issued by the proper head of department ; see Atty. Gen. Vol. VII, p. 249, 1855, TJ. S. (E.) Regulations and jurisprudence relating to consular fees Protection of individuals against payment of consular fees not due ; see De Lema v. Haldimand, 1824, G. B. Determination of official fees; see United States v. Eaton, 1898, U. S. Determination of official fees as distinguished from unof- ficial fees; see United States v. Mosby, 1889, U. S. British court declared that a consul may not recover fees in a case where he acted for his government ; see De Lema v. Haldi- mand, 1824, G. B. The fees taken for the acknowledgment of an affidavit, etc., are not official ; see United States v. Badeau, 1887, U. S. The department of state must determine what constitutes an official fee ; see United States v. Badeau, 1887, U. S. A consul may recover before the final settlement, fees paid in under the impression that they belonged to the government; see United States v. Owen, 1891, U. S. Amount of fees which consuls might formerly retain; see Atty. Gen. Vol. XII, p. 527, 1868, U. S. Fees and accounts of consular agents; see Atty. Gen. Vol. XII, p. 100, 1866, U. S. 769 ORGANIZATION Regulations governing fees of American consuls; see Atty. Gen. Vol. VII. p. 258, 1855, IT. S. Classitication of fees; see Atty. Gen. Vol. VII, p. 260, 1855, TJ. S. Fees received by a consul for care of an estate are official fees ; see United States v. Slocum, 1836, U. S. The president has power by statute to prescribe a tariff of fees for official services only. He also has the power to declare wliat are official services. Hence when he perscribes a certain fee for a service it is to be considered as declared official; see Atty. Gen. Vol. XIX, p. 198, 1888, U. S. "Fees for certificates to consular invoices may be rendered official by executive order, and specially included in the tariff of official fees;" see Atty. Gen. Vol. XIX, p. 229, 1889, U. S. "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respect- full consideration and ought not to be overruled without cogent reasons;" see Atty. Gen. XIX. p. 228, 1889, TJ. S. Amount of consular fees allowed to consular agent and con- sul. — Interpretation put upon statute by the executive entrusted with its enforcement presumed to be correct; see Atty. Gen. Vol. XXII, p. 163. 1898, TJ. S. Fees of consuls for the care of estates; see Atty. Gen. Vol. VII. p. 255-259, 1855, TJ. S. A consul in China is entitled to fees collected for shipping and discharging seamen on foreign built vessel sailing under the American flag; see Goldsborough v. United States, 1889, U. S. Where consul seeks to recover fees for certifying invoices of non-dutiable goods there must be certainty in the number of such invoices else claim irrecoverable ; see Goldsborough v. United States. 1889, U. S. American consul removed from office before the end of the fiscal year is only entitled to retain a part of the fees collected proportional to the part of the fiscal year which he has held of- fice; see Marston v. United States, 1896, U. S. (Syllabus) If the president directs the collection of fees il- legally, the owner may have a right of recovery against the gov- ernment; but the officer who performs the service and collects the fees has no claim to the money; see Stahel v. United States, 1891, U. S. (F.) Relations of different departments The attorney-general declared that in a judicial case in which there was a conflict between the department of state and 770 COMPENDIUM the district court as to the meaning of the word "destitute" con- tained in the statute, it should be settled by the courts ; see Atty. Gen. Vol. XIX, p. 25, 1887, JJ. S. Conflicts between different departments of the government; see Atty. Gen. Vol. XIX, p. 25, 1887, TJ. S. Power to provide salary of consul is in congress and an ad- vance in salary made by executive uncollectible; see Byers v. United States, 1887, U. S. (G.) Means to compel consul to discharge his duties Responsibility of consul towards individuals; see (The) At- lantic, 1849, TJ. S.; Gould v. Staples, 1881, U. S.; Jordan v. Wil- liams, 1851, U. S. Consul may refuse to do certain acts where fee exacted is not official fee ; see Mosby v. United States, 1888, U. S. Liability of consul for misappropriation of wages of seamen ; see Hindsgaul v. (The) Lyman D. Foster, 1898, U. S. Recovery of seamen of charges for their imprisonment at the order of the consul; see Chester v. Benner, 1871, U. S. It is an indictable felony for consul not to pay a draft lawfully drawn upon him for public moneys in his hands; see Atty. Gen. Vol. VIZ, p. 257, 1855, U. S. The discretionary power given by statutes to consuls regard- ing the discharge of seamen is not reviewable except by some com- petent court ; see Atty. Gen. Vol. XVI, p. 268, 1879, U. S. "Where consul collects extra wages from master the secretary of the treasury can only review the arithmetical accuracy of ac- count ; see Atty. Gen. Vol. XVI, p. 268, 1879, U. S. "Attestation is not necessary to a consular bond;" see Atty. Gen. Vol. I, p. 378, 1820, U. S. (H.) Responsibility of government for acts of consul See also Official Acts. United States is not responsible for acts done by the consul in so far as he may have exceeded his authority; see Atty. Gen. Vol. VI, p. 626, 1854, U. S. A consul who purchased articles as suggested in a letter from a representative of the department of state is entitled to payment even though the appropriation made for that purpose be ex- hausted ; see leavitt v. United States, 1888, U. S. "United States is not liable to its citizens for the conse- 771 ORGANIZATION qiiences of the wrongs or shortcomings of its officers;" see Atty. Gen. Vol. XIX, p. 24, 187, U. S. United States is not responsible for a contract made by con- sul for services; see Azogue v. TJnited States, 1891, IT. S. In an action brought against the United States for wages for services, court of claims held that the consul's agreement with plaintiff did not make the United States a party to the contract ; see Azogue v, TJnited States, 1891, U. S. MUNICIPAL LEGISLATION' Responsibility of consul for his official acts; see Jordan v. Williams, 1851, TJ. S. A consul is not responsible for money paid clerk under di- rection of state department; see TJnited States v. Owen, 1891, TJ. S. Consuls bring suit against master for refusal to take sea- men on board; see Matthews v. Offley, 1837, TJ. S. American consul abroad has no privilege of jurisdiction and may be sued in American courts; see Caldwell v. Barclay, 1783, TJ. S. Consul is presumed to have an official character for the per- formance of certain acts without proof of his signature; see St. John V. Croel, 1843, TJ. S. Proof of the consular seal; see Church v. Hnbbard, 1804, TJ. S. ; St. John v. Croel, 1843, TJ. S. Suit to compel master to deposit ship's papers; see Toler v. White, 1834, TJ. S. "Masters of American vessels are subject to prosecution in the name of the consul for omission to deposit with him the papers according to law, but not to indictment;" see Atty. Gen. Vol. VII, p. 395, 1855, U. S. State court decides as to the legality of an oath administered by a consul ; see Seidel v. Peschkaw, 1859, TJ. S. The discretionary power given by statute to consuls regard- ing the discharge of seamen is not reviewable except by some competent court ; see Atty. Gen. Vol. XVI, p. 268, 1879, TJ. S. Where consul collects extra wages from master the secretary of the treasury can only review the arithmetical accuracy of account; see Atty. Gen. Vol. XVI, p. 268, 1879, TJ. S. ^Municipal IcgiHlation and jurisprudence to compel nationals to conform to the consular regulations and to facilitate the fulfilment by consuls of their functions. 772 COMPENDIUM A consul who purchased articles as suggested in a letter from a representative of the department of state is entitled to payment even though the appropriation made for that purpose be ex- hausted ; see Leavitt v. United States, 1888, U. S. Lord Hardwiche said he considered a consul a land or sea officer in the service of his majesty and he would not therefore grant the application that he, when plaintiff, must give security to answer costs according to the course of the court; see Cole- brook V. Jones, 1751, Q. B. "When American consul suspected the papers of a ship to be fraudulent he called upon a vessel of war of his nation to seize it ; see Atty. Gen. Vol. Ill, p. 405, 1839, V. S. ESTABLISHMENT OF CONSULS Discussion of what establishment of a consul depends upon ; see Arnold v. (The) IJnited Insurance Company, 1800, XT. S. The appointment of a consul at Port-au-Prince would have the effect, according to international usage, of placing the Hay- tian empire in diplomatic relations with the United States; see Atty. Gen. Vol. VII, p. 250, 1854, U. S. Consuls of the North German Union recognized as consuls for any of the separate states; see (Ex parte) Newman, 1871, IT. S. The grant of the exequatur is not retroactive in its effect; see (The) Adolph, 1851, U. S. The appointment of vice-consul by a consul and the making of emergency appointments; see United States v. Eaton, 1898, U.S. The terms of the exequatur should be consulted to ascer- tain the territorial limits within which the consul may perform certain functions ; see Atty. Gen. Vol. VIII, p. 102, 1856, U. S. Limits within which consul may exercise certain functions; see Atty. Gen. Vol. VIII, p. 102, 1856, U. S. Court declared that the old practice allowing the swearing of affidavits before notaries was still in force in a case where no British consul and no notary or other official present before whom it could have been sworn was within many hundred miles; see (In re) Darling, 1845, G. B. Consul's commission usually directed to the sovereign of the receiving state ; see Barbuit's Case, 1737, G. B. Fimctions of consuls as recited in the commission; see Bar- buit's Case, 1737, G. B. 773 ESTABLISHMENT Form of commission of a consul of Oldenburg given ; see Viveash v. Becker. 1814. G. B. Grant of the exequatur of the consul of Oldenburg by noti- fication in the London Gazette of March 12, 1814; see Viveash v. Becker, 1814, G. B. "I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person cannot possibly have any virtue in him as a public officer;" see Atty. Gen. Vol. XX, p. 92, 1891, TI. S. Consul general for Scotland appointed deputies; see Dree Gebroeders v. Vandyk, 1802, G. B. Consul appoints a successor and asks the charge d'affaires to ask for liis exequatur; Sturgis v. Slacum, 1836, U. S. TERMINATION The president has the undoubted power in his discretion to withdraw the exequatur of any foreign consul; see Atty. Gen. Vol. VII, p. 385, 1855, U. S. Consul is not entitled to immunities after his dismissal by sending state, even though his exequatur has not been with- drawn ; see Marshall v. Critico, 1808, G. B. In the case of The Hope consul seems to have remained in the enemy's territory after the outbreak of hostilites; see (The) Hope, 1813, G. B. The consul's privileges must be accorded as long as his ex- equatur is not withdra\\Ti ; see United States v. Trumball, 1891, TI. S. Payment of funeral expenses of deceased American consul; see Atty. Gen. Vol. II, p. 521, 1832 U. S. A con.sul's office was abolished by the disappearance of the sovfreignty from whir-h ho had received his exequatur; see Mahoney v. United States, 1869, U. S. Consul may cease to be a consul before his exequatur has been withdrawn ; see Hall v. Young, 1825, U. S. NATURE OP CONSULAR OFFICE See Barbuit's Case, 1737, G. B.; Clark v. Cretico, 1808, G. B.; Courtney, 1810, G. B. ; Davis v. Leslie, 1848, U. S.; Gittings v. Crawford, 1838, U. S. ; Gernon v. Cochran, 1804, U. S.; Heathfield 774 COMPENDIUM V. Chilton, 1767, G. B. ; Herzogin Marie, 1861, G. B. ; (The) Infanta, 1848, TJ. S.; (In re) Kaine, 1852, U. S.; Marshall v. Critico, 1808, G. B. ; Seidel v. Peschkaw, 1859, U. S. ; State v. De La Foret, 1820, TJ. S.; United States v. Lucinario, 1906, U. S.; Wilhelm Frederick (especially the argument of counsel who was Phillimore), 1823, G. B. (A.) Various opinions of the nature of the consular office Representative character of consuls and cases in which courts speak of consuls as representatives; see (The) Courtney, 1810, G. B. ; Davis v. Leslie, 1848, U. S. ; (The) Herzogin Marie, 1861, G. B. ; (The) Infanta, 1847, U. S.; Marshall v. Critico, 1808, G. B.; Seidel V. Peschkaw, 1859, U. S.; (The) Wilhelm Frederick, 1823, G. B. Authorities whose writings have influenced English judi- cial opinion of the character of consuls ; see Barbuit's Case, 1737, G. B. ; Heathfield v. Chilton, 1767, G. B. A consul is not merely a commercial agent ; see Atty. Gen. Vol. VI, p. 20, 1854, TJ. S. A consul is a magistrate and derives authority from both governments; see Scanlan v. Wright, 1833, TJ. S. That a consul has a certain magisterial character is shown by the decision ; see (In re) Daly, 1841, G. B. A consul is not a magistrate; see Davy v. Maltwood, 1841, G. B. A consul is not a judicial officer; see Waldron v. Coomhe, 1810, G. B. A consul has certain judicial functions; see Barbuit's Case, 1737, G. B. The difference between a consul and diplomatic agent is in- dicated in the case of Von Thodorovich v. Franz Josef Beneficial Association, 1907, TJ. S. Consuls replace state officials for the performance of certain acts as for taking acknowledgment of deeds ; see St. John v. Croel, 1843, TJ. S. Consuls carry out provisions of state laws when certifying to the official character of officials of the receiving state ; see (Succession of) Wedderburn, 1841, TJ. S. "If the attestation of the signature, and right of the person who administered the oaths, were duly certified under the seal of a responsible officer, whose appropriate duty it was to give such certificate, it might be received, so far as the authentication goes, as prima facie evidence, though not under the great seal of the state;" see Stein v. Bowman, 1839, TJ. S. 775 MATURE OF CONSULAR OFFICE "If, indeed, being a subject of the state, he has power as a local magistrate to solemnize marriage, or, being a foreigner, he has the same power as clergyman, he may do it, but, in either case, not in his capacity as consul ; see Atty. Gen. Vol. VII, p. 343, 1855, U. S. Consul of Oldenburg charged with the duty of looking after prizes and nationals detained as prisoners of war and making the necessary intercessions before the proper tribunals to procure them their liberty ; see Viveash v. Becker, 1814, G. B. Consul's functions "are purely of a commercial nature, and such as properly belonging to a consul, those of advice and in- tercession and there is no one function of state purposed to be performed by him as representing the sovereign of his state;" see Viveash v. Becker, 1814, G. B. "American consul has no authority except what may be ex- pressly granted by a law^ of congress, and acknowledged by the government in whose jurisdiction he resides;" see Atty. Gen. Vol. XIX, p. 197, 1888, U. S. Consuls are not public ministers but enjoy certain privi- leges such as for safe conduct ; see Viveash v. Becker, G, B. "I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person cannot possibly have any virtue in him as a public officer;" see Atty. Gen. Vol. XX, p. 92, 1891, U. S. It may be that the laws of a state of the United States give validity to certain services performed by consuls; see Atty. Gen. Vol. XX, p. 92, 1891, TJ. S. The value of unofficial services customarily performed by consuls depends entirely upon the fact that the person rendering them is a consular officer; see Atty. Gen. Vol. XX, p. 92, 1891, U. S. The efficacy of the act may be due to the faith generally re- posed in consular officers; see Atty. Gen. Vol. XX, p. 93, 1891, U. S. Extent to which a consul representing an other consul with- drawn by reason of war is a consul of the belligerent state; see Atty. Gen. Vol. XXII, p. 75, 1898, TJ. S. "A correspondence ensued between the captain general of Cuba and Mr. Trist, (United States consul), which terminated in a friendly disposition of the question, whether the seizure of the ves.sel in the port of Havana was a violation of the jurisdictional rights of Spain ;" see Atty. Gen. Vol. Ill, p. 406, 1839, TJ. S. 776 COMPENDIUM "Supported by such authorities, I think it may be safely assumed that a consul is not a public minister within the mean- ing of our act, (act of April 30, 1790) which is that of the gen- eral law of nations;" see Atty. Gen. Vol. I, p. 409, 1820, IT. S. Whether a consul is or is not a public minister may be a mere dispute about words, in the abstract, but in relation to our act of congress (April 30, 1790,) the question becomes a material question of things, and not merely of words; see Atty. Gen. Vol. I, p. 409, 1820, IT. S. Insults offered by a tumultuous crowd to the consul before his residence are not covered by the act of April 30, 1790, which punishes for any infraction of the laws of nations, by offering violence to the person of an ambassador or other public ministers as consul is not a public minister; see Atty. Gen. Vol. I, p. 42, 1794, TT. S. Consul made charge d'affaires becomes invested with full diplomatic privileges, "yet becomes so invested as charge d' affaires not as consul, and the fact of such casual duplicature of functions 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;" see Atty. Gen. Vol. VII, p. 345, 1855, IT. S. Marshals are not required by law to execute the sentence of a French consul, arising under the 12th article of the convention with France ; see Atty. Gen. Vol. I, p. 43, 1794, TT. S. Consuls are not public ministers and are not invested with any representative character; see Atty. Gen. Vol. I, p. 42, 1794, TJ. S. Elevated character of the consular office; see Oscanyan v. Arms Co., 1880, U. S. Official character of consul's acts when ordering survey of vessel and sale at auction. Like a trustee he is inhibited from acquiring an interest in the property; see Eiley v. The Obeli Mitchell, 1861, XT. S. A vice and deputy consul has authority to acknowledge a power of attorney; "for while he acted in that capacity he was entitled to exercise the authority vested by law in the consul himself;" see Brown v. Landon, 1883, U. S. Lord Hardwiche said he considered a consul a land or sea officer in the service of his majesty and he would not therefore grant the application that he, when plaintiff, must give security to answer costs according to the course of the court; see Cole- brook V. Jones, 1751, G. B. "It cannot be conceived that the general government sends 777 NATURE OF CONSULAR OFFICE representatives abroad for the purpose of acting as the executive officers of the different state courts in the Union. It is true that those representatives sometimes act as ministerial officers of such courts, as for instance, to procure testimony, and the like ; but they do so with the special authority of state legislation, provid- ing distinctly for such cases;" see Interdiction of Joseph Dumas, 1880. U. S. "Or, in the absence of such person by the official represen- tative of the foreign government;" see Grin v. Shine, 1902, IT. S. "A consul of the United States is authorized to take at his consulate an acknowledgment of a deed to realty situated in this state, and his certificate, mider official seal, is evidence of such acknowledgment;" see long v. Powell, 1904, U. S. ]\Iexiean consul makes complaint under oath to secure extra- dition. His official character must be taken as sufficient evi- dence of his authority, and as the government he represented Vi^as the real party interested in resisting the discharge, the appeal was properly prosecuted by him in its behalf; see Ornelas v. Ruiz, 1895, TJ. S. Nature of American consul's action when administering an estate; see Sturgis v. Slacum, 1806, TJ. S. In the course of the administration of an estate the French consul was entitled to be heard by the court, not as a party but informally, as the national agent of supposedly interested par- ties; see Ferrie v. The Public Administration, 1855, TJ. S. Consul even though .sometimes allowed to engage in com- mercial pursuits, is so far the public agent of his state and its "commercial representative that he is precluded from under- taking any affairs or assuming any position in conflict with its interests or its policy;" see Oscanyan v. Arms Company, 1880, U. S. Consul is a representative of the United States within the meaning of thp act of 1R.53 and hence has authority to administer an oath; see Seidel v. Peschkaw, 1859, TJ. S. "By all governments his [the consul's] representative char- acter is recognized and for that reason certain exemptions and privileges are granted him;" see Oscanyan v. Arms Company, 1880, JJ. S. Character of the consular office ; see Seidel v. Peschkaw, 1859, TJ. S. (B.) Whether consul is a functionary of the receiving state as well as of the sending state Consul flf'riv<'s liis aiitliority also from receiving state; see Scanlan v. Wright, 1833, U. S. 778 COMPENDIUM A consul is not a functionary of the receiving state; see Herman v. Herman, 1825, IT. S. Mansfield discusses the nature of the consul's act when he sells damaged goods in receiving state and compares him to an auctioneer; see Waldron v. Coombe, 1810, G. B. Consul is an agent of the receiving state (Brazil) directed by laws to sell damaged goods; see Waldron v. Coombe, 1810, G. B. Laws of receiving state have no control over consul's expen- diture of money and citizens of receiving state are not concerned with abuses relating to fees charged; see Commonwealth v. Di Silvestro, 1906, U. S. When a consul administers an estate he is not an ordinary administrator but acts as receiver or agent and his duties are prescribed by law ; see Sturgis v. Slacum, 1836, TJ. S. Case in which court declared that consul has no right to re- ceive fees when acting upon instructions from his government; see I)e Lema v. Haldimand, 1824, G. B. Court admits affidavits taken before British consul in Rus- sia because magistrates of Russia are not empowered to take affidavits; see (In re) Daly, 1841, G. B. List of the arrival of ships sent home by consuls are mere representations and cannot be received as evidence; see Roberts V. Eddington, 1801, G. B. The consul's action when caring for estates looking after the interests of owners in prize proceedings is of the nature of surveillance and is not judicial; see Atty. Gen. Vol. VIII, p. 101, 1856, TJ. S. Representative character of consul when asking for the de- livery of prisoners to be transported to the sending state for trial ; see Atty. Gen. Vol. VIII, p. 76, 1856, TJ. S. Consuls are not judicial officers; see Atty. Gen. Vol. VIII, p. 381, 1857, TJ. S. Court declared that the old practice allowing the swearing of affidavits before notaries were still in force in a case where no British consul was within 150 miles; see Cooke v. Wilby, 1884, G. B. The British court received an acknowledgment, the af- fidavit verifying the same having been sworn to before the pro- vi.sional British consul and no notary or other official present before whom it could have been sworn being \Aathin many hun- dred miles; see (In re) Darling. 1845, G. B. Court declares that it has no authority to compel ^^^t^esses 779 NATURE OF CONSULAR OFFICE to testify before Spanish consul; see Spanish Consul's Petition, 1867, TJ.* S. "American consul has no authority except what may be ex- pressly granted by a law of congress, and acknowledged by the government in whose jurisdiction he resides;" see Atty. Gen. Vol. XIX, p. 197, 1888, TJ. S. (C.) Definition ^ "A consul is an officer comissioned by his government for the protection of its interests and those of its citizens or sub- jects;" see Oscanyan v. Anns Company, 1880, U. S. 780 CITATIONS OF CONSULAR CASES Case Page ADOLPH, THE, (1835) 175 ADOLPH, THE, (1851) 119 ADUTT, IN RE 183 AGINCOURT, THE 62 ANNE, THE 45,193,434,499 ARNOLD V. THE UNITED IN- SURANCE COMPANY 573 A8PINWALL V. THE QUEEN'S PROCTOR 241,247 ATLANTIC, THE 223 note BAIZ, IN RE , 193 BARBUIT'S CASE 105,106,187,349 419, 420, 426, 431, 469, 499 BECHERDASS AMBAIDASS, THE 61 BELLO CORRUNES, THE 119, 156, 327, 361 BERNARD v. CREENE 65 BISCHOFFSCHEIM v. BALT- ZER 7 BORS V. PRESTON 195, 311, 330 CATLETT V. PACIFIC INSUR- ANCE COMPANY 231 CHURCH V. HUBBART 9, 231, 232, 350, 351 CLARKE V. CRETICO . . . 349, 431, 499 COFFIN V. WELD 306 COHENS V. VIRGINIA 77, 167, 169, 413 COMMONWEALTH v. KOSLOFF 194, 339, 348, 414, 499, 552 COPPELL V. HALL 193, 330 CORIOLANUS, THE 182 COURTNEY, THE 129, 175, 296 CRUTTENDEN v. BOURBELL 51, 138 DAINESE V. HALE 29 DAVENPORT, IN BE 309 DAVIS V. PACKARD 75,77,78,113 note, 149, 161, 169, 330, 421,499, 574 DE GIVE T. GRAND RAPIDS FURNITURE COMPANY .... 330 DURAND V. HALBACH 499 EL WINE KREPLIN, THE .... 29, 61, 363, 364 Case Page EUDORA, THE 298 EVANGELISTRA, THE 62 FALCON, THE 573 FATTOSINI, MATTER OF .... 236, 245, 309, 461 FLYNN V. STOUGHTON 499 FROMENT V. DUCLOS 313 GITTINGS V. CRAWFORD 77, 78, 80, 193 GOLUBCHICK, THE 60, 62, 130, 288, 326 GRAHAM V. STUCKEN 78 HALL V. YOUNG 499 HARRISON V. VOSE 332 HAVANA, THE 61, 312 HEATHFIELD v. CHILTON ... 42 HERMAN V. HERMAN 333 HERRES, IN RE 183 HITZ, EX PARTE 50 HOLLANDER v. BAIZ 193 HUTCHINSON, EX PARTE ... 138 HUTCHINSON v. COOMBS 25, 90, 306 INDIAN CHIEF, THE 573 JONES V. LE TOOMBE 331 JORDAN V. WILLIAMS 334 JOSEPHINE, THE 573 KAMMERHEVIE v. ROSEN- KRANTS 6 KENNEY V. BLAKE 376 LAMB V. BRIARD 26,89,306 LANFEAR v. RITCHIE 241, 461 LEON XIII, THE 61, 64 LEVY V. BURLEY 8 LOBRASCIANO 'S ESTATE, IN RE 309 LOGIORATO'S, IN RE 236,242 LONDON PACKET, THE 119 LORWAY V. LOUSADA 312 MADONNA D 'IDRA 175, 296 MAGEE V. THE MOSS 208 MALI V. KEEPER OF THE COM- MON JAIL 447,450 MANNHARDT v. SODERSTROM 117, 217, 348, 413, 421, 499, 552 781 CASES CITED Case Page MARIE. THE 363 MAESH-^LL V. CRITICO 136, 349 MARY, THE 372 MATHEWS V. OFFLEY 643 MOORE V. MILLER 353 MOSBY V. UNITED STATES . . 335, 615, 649 NEW CITY, THE 436 NEWMAN, EX PARTE 61 NINA, THE 10, 60 NIMROD, THE; see SMITH v. TREAT NORBERG V. HILLGREU 363 OCTAVIE, THE 288 ONE HUNDRED AND NINETY- FOLTl SHAWLS 61 PATCH V. MARSHALL 71 PATTERSON v. BARK EUDORA 376 RABASSE, SUCCESSION OF . . . 241 ROBERTS V. EDDINGTON .... 232 SAGORY V. WISSMAN ....113 note ST. LUKE 'S HOSPITAL v. BAR- CLAY 78 SALOMONI, THE 363 SARTORI V. HAMILTON 499 SMITH V. TREAT 208, 372 SNOW V. WOPE 459 STATE V. DE LA FORET ..499,552 STEIN V. BOWMAN 645 TARTAGLIO, IN RE ... 156, 309, 461 TELEFSEN v. FEE 461 THOMPSON'S SUCCESSION .. 246 TINGLE V. TUCKER 26,306 TRIQUET V. BATH 52,106,136,349,431 TROOP, THE 214 TWO FRIENDS 59,290 UNITED STATES v. BADEAU . 649 Case Page UNITED STATES v. MITCHELL 9, 231, 233 UNITED STATES v. MOSBY . . . 284, 394, 649 UNITED STATES v. MOTHER- WELL 284 UNITED STATES v. ORTEGA . . 43, 77, 168, 179, 194 UNITED STATES v. RAVARA 76, 115, 117, 166, 169, 170, 194, 338, 413, 420, 472, 499 UNITED STATES v. TRUM- BULL 51 VALARINO V. THOMPSON 311, 330, 574 VERGIL, IN RE 240 VIVEASH V. BECKER 17, 42, 339, 414, 499, 576 VROW ANNA CATHARINA, THE 13, 14, 15 WAITSHOAIR V. THE CRAIG- END 285 WALDRON V. COOMBE 232 WEDDERBURN, SUCCESSION OF 155 WEIBERG V. THE ST. OLOFF . 60, 129, 326 WELHAVEN, THE 369,364 WILCOX V. LUCO 330 WILDENHUS 'S CASE 302 WILDENHUS, IN RE 125 WILHELM FREDERICK, THE 84, 129, 175 WILLENDSON v. FOSOKET . . . 60, 129, 446 WILLIAM HARRIS, THE ...372,577 WILSON V. THE MARY .... 208, 459 W^YMAN, IN RE 309 7S2 INDEX (References are to pages) ABSENT NATIONALS (see REPEESENTATION IN COUET) see Compendium, 723-726 ACCOUNTS {see EEGTJLATIONS) ACKNOWLEDGMENTS (see AFFIDAVITS; CEETIFICATES ; DEEDS; POWER OF ATTOENEY) see Compendium, 728-729 ACTING CONSUL files claim in prize proceedings for national, 151 ADMINISTRATION OF ESTATES see Compendium, 724-725 arbitral award because of refusal to grant, 423 consul must give bond, 158, 461 conflicting decisions of courts, 129 petition to be given, of deceased consul, 333 right of Spanish consul in Cuba, 639 right to appoint delegate to represent heirs, 317 procedure wlien under different jurisdictions, 357 most favored nation clause, 461 "intervention," meaning of, 237, 243 right to receive moneys, 361 nature of consuls action, 569 consul not given, 165, 224 administrator making personal claim no longer acts as administrator, 358 powers of consuls, 241 given, because public administrator refused, 247 discussion of Spanish regulations, 634-639 consul given right to, by treaty, 129, 148, 157, 244, 361, 587 procedure to be followed to secure recognition of treaty right, 587 AFFIDAVITS see Compendium, 729-730 consular certificate annexed to, 214 under bankrupt law, 72 that citation had been made, valid under state laws when taken before con- sular agent, 265, 280 admissibility of, when taken before "commercial and naval agent," 446 definition of, 266 fee for certificate of attestation of affidavit to invoice taken before mag- istrate, 592 authority of foreign functionaries should be attested by notarial certifi- cate, 73 administered in German interpreted in English, 150 power given American consuls to administer oaths limited to certain cases, 188 783 INDEX AFFIDAVITS— Continued sworn before magistrate accepted when consul not allowed to take, 159 before magistrate allowed to be filed by British court, 183 consul is magistrate authorized to take, 326 British consuls to administer to nationals only, 158 competency of consuls to take under Nebraskan statutes, 83 notarial certificate when sworn before consul unnecessary, 73, 255 sworn before notary public when British consul far distant may be filed, 120 before consul accepted when notary certifies competence, 192 sworn before provisional consul accepted when no notary near, 128 consul is a representative and competent to administer oaths, 332 may be sworn before British consuls in Russia because magistrates not em- powered to take, 128, 138 consuls authorized by British statute to take, 138 British statutes do not authorize consuls to take, 120 British statutes regulating taking of, 122 swearing of abroad, 230 before vice-consuls, 73 AMBASSADOR meaning of in the act of 7 Anne, 53 APPOINTMENTS (see also COMMISSIONS; EXEQUATUE) see Compendium, 764-765 power of congress as to, 517 demand of damages of charg6 d'affaires because of refusal to appoint act- ing consul at request of consul, 355 of vice consuls, dangers of, if extensive immunities granted, 432 person placed in charge by consulate by incumbent without appointment has no authority to act or perform notarial services, 620 power of president to make, 509, 511, 514 temporary, made by minister, 380 of consuls, right to make, must be secured by treaty, 429 of vice consuls, regulations concerning, 384 of vice consuls, power to make without concurrence of senate, 389 of vice consuls, trading consul authorized to make, 426 of vice consuls and consular agents, cannot be made by consul, 540 ARBITRATOR see Compendium, 722 action of consul as, 622 consul acts as, 577, 621 consul took jurisdiction at instance of both parties, 375 right of consul to act as, in case of differences of a civil nature, 606 ARCHIVES Bf-o Compendium, 757 disposition of, 3 employee cannot be made to divulge contents of documents in, 215 inviolability of, 3 consular aj^onts must keep separated, 5 subpoena will not issue in case of, 146 ARREST of deserters (see DESERTERS) immunity of consul from, 107 liability of consul to, 759-760 784 INDEX ARREST — Continued consul not privileged from, 465 trading consuls not privileged from, 423-432 ATTACHMENT consuls not privileged from foreign, 86 ATTESTATION (see AFFIDAVITS; AUTHENTICATION j CERTIFI- CATES) of foreign deeds, instruments or commissions, consuls not competent, 401 of foreign judgments, bow made, 82, 104 of foreign laws, consuls not competent to give, 103 of signatures of foreign officials, consuls not competent to give, 98 of signature of foreign magistrate giving copy of foreign judgment made by notary, 150 of application for patent before magistrate, 483 of proceedings of foreign courts, 350 AUTHENTICATIONS {see also AFFIDAVITS) AUTHORITY OF CONSULS {see JUEISDICTION) AUTHORITIES CITED Barbeyrac, 54, 114, 187, 338, 376, 431 Beawes, 349, 432 Borel, 470, 472, 499, 573 Bouchard, 470 Brown, 349, 419, 470 Bynkershoek, 113, 114, 187, 338, 876, 471, 499 Calliere, 470 Calvo, 48 Chitty, 475, 476 de Clerq et de Vallat, 44, 517, 527, 539, 553, 557, 564, 572, 573 Creasy, 451 de Cussy, 48, 496, 499, 539, 573, 574 Dalloz, 500 Denisart, 188 Flynn, 499 Grotius, 187, 376, 429 Halleck, 80, 451 Heffter, 48 Home, 573 Jefferson, 389 Kent, 80, 142, 172, 178, 192, 323, 331, 361, 480, 499, 552, 577 Lawrence's Wheaton, 552 de Martens, 19, 48, 113, 114, 338, 349, 500, 573 Masse, 500 Mensch, 574 Miltitz, 570 Molloy, 349, 429 Moreuil, 496, 499, 506, 516, 539, 562, 571, 573 Orltolan, 457 Pardessus, 474, 496 Phillimore, 48, 122, 450, 452, 573 Pinheiro Ferreira, 573 Riquelme, 543, 570 Rebeiro dos Santos, 571, 573 785 INDEX AUTHORITIES CITED— Continued Santos, sec Rebeiro St. Real, -iTO Sirey, 457 Steck, 472 Twiss, 451 Valin, 470, 471, 472 Vattel. 19, 106, 107, 114, 338, 419, 424, 429, 430, 431, 470, 471, 499, 573 Warden. 123, 613, 639 Wharton, 45, 48 Wheaton, 156, 172, 223, 238, 246, 323, 361, 452, 499 Wicquefort, 54, 106, 107, 113, 114, 187, 378, 419, 424, 431, 432, 470, 499 Wildman, 499, 573 Woolsey, 156, 246, 361 BOND need not be attested, 467 remedy for consul 's misappropriation of wages to be sought from sureties on Ills bond, 612 acts previous to filing of, responsibility of consul, 391 right to salary previous to filing, 391 date at which takes effect, 392 CAPTAIN {see MASTER) CARS sealing of, 619 CERTIFICATES, CONSULAR, (see also AFFIDAVITS) see Compendium, 730-732 of acknowledgment, evidence of character of person before whom taken unnecessary, 322 value of consul's letter as evidence of facts asserted therein, 165 only those in which consul discharges specific consular duties included in treaty, 401 of copy of ship's papers, value as evidence, 397 of authentication of deeds, instruments and commissions not evidence, 401 British, as evidence of desertion, 235 of discharge i)reclude8 seaman 's claim for subsequent wages, 304 relating to discharge of seaman, as evidence, 89, 90 value of, as evidence, 7-9, 98, 103, 182, 231, 232 not admissiblp as evidence, 164 made evidence, 208 of acknowledgments, as evidence, 284 aflmitted as evidence of facts known to consul in his official capacity, 83 of acknowledgment by married woman of a fine may be given, being a no- tarial act, 51 as evidence in case of imprisonment of seamen (see also JURISDICTION 0VP:R SEAMEN) 121 lists of ships arrivals returned by consul are not evidence, 320 approving proceedings of master will not relieve him from responsibility, 459 of official character of officers certifying to copy of will accepted, 440 of asHigiunc-iit of patent, validity of, 282 of acknowleflgment of power of attorney admitted, 82 of proceedings before consul, 182, 189 78G INDEX CERTIFICATES, CONSULAR— Co7ioteiit to take at consulate only, 253 act to cure defective conveyances, 353 certificates of, prima facie evidence, 284 certificates of, prima facie evidence of official character of person taking, 284 certificates of, under consular seal are evidence, 247 must be before foreign magistrate, 150 object in allowing them to be taken before consuls, 322 may V»e taken before British consuls in Russia, 128 DEPOSIT OF SHIP'S PAPERS (see SHIP'S PAPERS) DEPOSITIONS Bee Compendium, 732-733 consuls may authenticate, 483 Spanish consul directed to attend to citations, 640 commissions for taking evidence abroad granted by courts, 104 consuls qualified to take without commission, 333 must be taken under a commission, 351 may be certified by commissioners authorized to take them, 104 court has no authority to compel witnesses to give testimony before Spanish consul, 335 de bene esse, consuls not competent to take, 7 de bene esse, may be taken before consuls, 73 de bene esse, not ordinary ' ' notarial acts, ' ' 7 right of consul to receive fees for taking, 593 consul qualified to take for use in Nebraska, 83 consul is a magistrate authorized to take depositions, 326 commission issued to vice consul acceptable when purporting to be executed by him, 354 regulations concerning the issuances of letters rogatory, 645 when seal of commercial agent employed by deputy deposition properly authenticated, 328 consul qualified to take for use in Texas, 6 DEPUTY CONSUL (see also PROCURATION) acknowledgments before, 353 meaning of, 528 vice-consul not deputy but acting consul, 188 DESERTERS see Compendium, 735-736 local authorities have right to examine whether those accused of desertion are deserters, 852 authority of court in carrying out treaty provisions applying to arrest, 586 what constitutes, 187, 284, 410 arrest of momber of crew of ship under construction is not a deserter, 410 must be delivered to consul and not to such person as he directs, 409 detention of, not limited to stay of ship, 127 detention not to exceed two months, 127 power of consul to grant the discharge of for cruel treatment, 207 790 INDEX DESERTERS — Continued consul has no authority to receive money and effects belonging to deserters, 603 consuls have no authority to imprison, 181 arrest of, procedure to be followed, 125, 586 will not be surrendered except by reason of treaty stipulations, 399 treaty with Prussia regarding deserters applies to North German Union, 603 DESERTION (see aho DESERTERS) value of consul 's certificate as evidence of, 235 when seamen failed to return because imprisoned was not a case of deser- tion, 187 court refuses to take jurisdiction, 199 procedure to be followed by British consul, 235 DESPATCH AGENT mentioned, 225 DESPATCHED CONSULS immunities of, 576 use of term, viii DESTITUTE SEAMEN {see also RETURN OF DESTITUTE SEAMEN; SEAMEN, CARE OF) act obliging masters to convey to U. S. does not include those accused of crime, 557 court declared seamen destitute and entitled to wages expended in their care by consul, 612 meaning of word "destitute" is for the courts to decide, 612 only ships bound directly for U. S, must return seamen, 485 consul not authorized by act of 1803 to aid seamen from a vessel-of-war, 484 DIFFERENCES (see JURISDICTION) DIPLOMATIC FUNCTIONS see Compendium, 737 in absence of diplomatic representative, 390 in the absence of diplomatic representatives competence of consul to repre- sent the interests of his state in admiralty proceedings, 119 circumstances when advantageous for consul to exercise, 543 exercise of, 293, 294 action in securing extradition (.see EXTRADITION) DIRECT TAXES exemption from, 3 DISCHARGE OF SEAMEN (see also JURISDICTION OVER SEAMEN) advice of consul to master only evidence and not a judicial and conclusive finding, 107 consul justified in discharging seamen when master and seaman agree, 629 certificate of consul a bar to seaman's suit for wages, 304 value of consul's certificate regarding, 83 consul not entitled to commission on wages, 186 commission of consul on payment of wages, 310 conditions necessary to entitle consul's discharge to credence, 189 authority of consul to make, 371 power of consuls in case of, 25 power given to consuls to discharge, 222 consul's certificate does not preclude investigation by court, 192 court of receiving state refuses to entertain suit concerning, 199 791 INDEX DISCHARGE OF SEAMEN— Continued American courts '"ill protect seamen, 84 acts of congress do not prevent courts from examining into discharge made by consul, 89, 90 power of consul to grant, for cruel treatment, 207 for disobedience cannot be made by consuls, 107 certain discretion to be allowed consul, 629 consul entitled to fees for, on foreign built vessel sailing under American flag, 173 German consul to decide whether American, member of crew is entitled to discharge, 84 master incompetent to make without the intervention of consul, 548 decision of consul in making reviewable by competent court but not by Treasury Department, 609 consul's action can better be reviewed by courts of sending state, 199 no means of reviewing consul's action provided, 223 sick sailor left without his consent does not come under act requiring three months' wages, 189 acta governing do not apply to seaman too sick to go on board, 88 application of the statutes as amended in 1884, 447 requisites for the validity of, 24 value of consul's certificate as to vedidity of discharge, 223 validity of consul's action to be judged by facts before him at the time, 373 payment of extra wages, 185, 187 consul receives wages of imprisoned seamen and pays for detention out of them, 190 seaman entitled to recover more wages although paid off by consul, 199 payment of three months' wages, 310 by consul precludes from suing for wages subsequent thereto, 373 consul has no right to discharge and give three months' wages when ship springs a leak, 495 DISPUTES {see JURISDICTION OVER SEAMEN) DISTRICT, CONSULAR how determined, 571 DISTRICT COURTS jurisdiction over consuls (see FEDERAL COURTS) DOCUMENTS consul cannot be compelled to produce official, 146 of consulate given in testimony must be stricken out, 216 must be shown that document is not official before court will issue subpoena duces tecum, 147 DOMICILE see Compendium, 755 consular, rf-mains in sending state, 19, 285, 333 having deputies deriving their authority from the consul-general would af- fect him with British residence, 148 DUCES TECUM a subpoena ducfts tecum will not issue to compel consul to produce documents of consulate, 146 DUTIES OF CONSULS (see FUNCTIONS) 792 INDEX EDICTS authentications of {see FOREIGN LAWS) EFFECTS consuls have no authority to receive, of deserters, 603 ELEVES CONSULS advantages of having, 531 ENEMEY'S VESSEL {see LICENSE) ENLISTMENT OF RECRUITS action of Great Britain in U. S., 550, 582, 583-585 sending state has no right to make, vFhen not authorized by receiving state, 550 ESCUTCHEON right to place over door, 3 ESTABLISHMENT see Compendium, 773-774 receiving state may refuse to receive subjects as consuls, 106 right to appoint consuls must be secured by treaty, 429 ESTATES {see ADMINISTRATION OF ESTATES) action of consuls, 568-571 care of, fees for, are official, 395 letter of credit not assets, 555 extent and nature of consul's action in caring for, 538 nature of consul's action, 569 reasons for allowing consul to care for, 474 EVIDENCE {see TESTIMONY) value of consular certificate as {see CONSULAR CERTIFICATES) EXEMPTION FROM TAXATION {see TAXES) EXEMPTIONS {see IMMUNITIES) EXEQUATUR {see also ESTABLISHMENT) action of authority of district after presentation of, 1 when exequatur could not be asked commercial agents appointed, 516 presentation of commission necessary to secure, 1 does not entitle to immunities after dismissal by sending state, 281 form of exequatur granted by English Regent given, 425 necessary to entitle consul to file suit in an official capacity, 6 consul appoints successor, asks charge d'affaires, to request exequatur, 355 grant not retroactive, 6 consul pardoned on condition that he surrender his exequatur, 77, 418 right to withdrawn, 480 consul's office may end before withdrawal of, 185 withdrawal of, receiving state should previously inform sending state, 1 privileges must be awarded as long as not withdrawn, 418 EXPENSES for lights for national celebration, properly allowed by department of state, 396 EXTERRITORIALITY origin and basis of, 546 depends upon treaty, 122 EXTERRITORIAL JURISDICTION origin and basis of, 122, 123, 546 depends on treaty, 122 793 INDEX EXTRADITION see Compendium, 736 consuls should follow instructions to secure commitment, 97 powers of consul in securing commitment for, 70, 214 Swiss consul asks for commitment, 321 complaint verified by consul sufficient, 155 complaint made bv consul under oath sufficient, 292, 423 what necessary to be competent to swear complaint, 318 prisoner retained for, delivered over to consul, 213 seaman having committed a crime, delivered to consul, 556 proceeding may be commenced by consuls, 6, 183 requisitions for surrender, 93 of consul from one state of Union to another, 197 FALSE IMPRISONMENT official act of consul in securing commitment docs not constitute, 91 FEDERAL COURTS see Compendium, 762 jurisdiction over consuls not diminished by act repealing previous express exclusion of the state courts, 164 discussion of jurisdiction of, in suits against consuls, 75-81, 194, 256, 257, 413-415, 165-172 cannot refuse jurisdiction where libelant is American, 154 consul may claim right to jurisdiction of, at any period of judicial pro- ceedings, 256 jurisdiction of circuit court over certain cases, 75-81, 118, 323, 414 jurisdiction of circuit court not taken away when consul is a party, 179- 182, 414 circuit courts not given jurisdiction over consuls, 312 whether federal courts have jurisdiction in suits concerning consuls citizens of U. S. not decided, 574 have jurisdiction of suits in which consuls are necessary co-defendants, 422 jurisdiction of, extends to suits in which consul or vice-consul is a necessary co-defendant, 164 quaere as to application of common law in case of offenses by consul, 118 effects of the word " all " contained in the constitution, 342, 345 reasons why, should have exclusive jurisdiction over consuls in all criminal cases, but not necessary for civil suits, 195 impracticable to make nature of consul's act criterion for taking jurisdic- tion, 348 consul not entitled to be exempted from detention by state courts for ex- tradition to another state when he had ceased to be consul, 197 jurisdiction of discussed, 414 district courts given jurisdiction exclusively of the state courts for certain offenses committed by consuls, 117, 133, 414 district courts have original jurisdiction over suits against consuls, 172, 414 jurisdiction of district courts exclusive of state but not of other U. S. courts, 258 reasons why, have jurisdiction to the exclusion of state courts, 325 have exclusive jurisdiction over consuls, 119, 133, 349 jurisdiction of does not extend to suits against a member of a firm of which consul is alHo member, when the firm is not liable, 74 consul when garnishee, bas not a right to, 216 794 INDEX FEDERAL COURTS — Continued conBuls and ministers put on same footing as regards jurisdiction of, 136 324 jurisdiction not exclusive of state courts, 139, 318 jurisdiction of over consuls not exclusive, 318 object of placing jurisdiction of consuls under, 258 jurisdiction extends to offenses, 118 jurisdiction over consuls would not exclude proceedings out of court, or po- lice-power, 196 jurisdiction of, privilege of sending state, 136 jurisdiction of, over consuls is privilege of U. S. government, 421 reasons why, should have jurisdiction over consuls, 348 acts of congress give, jurisdiction over all suits, which includes an action of debt upon recog^iizance of bail, 136 state courts do not have jurisdiction in cases concerning consuls, 135, 324 supreme court has appelate jurisdiction over consuls, 108, 414, 417 supreme court has exclusive jurisdiction, 417 supreme court has original but not exclusive jurisdiction, 417 consuls may commence suits in the supreme court, 258 supreme court, jurisdiction of cases affecting consuls not exclusive, 77, 464 consuls may bring question of jurisdiction to supreme court, 473 cannot compel the giving of testimony before foreign consuls, 335 until 1875, had exclusive jurisdiction, whether at common law or under U. S. statutes, 194 right of consul to waive jurisdiction of, 161, 183, 185 consuls may not waive right to jurisdiction of, 75, 136, 149, 283, 421, 447 quaere whether consul waived right of jurisdiction by, 133-134 jurisdiction of, not waived by pleading in state courts, 256, 283 consul waives right to jurisdiction of federal courts by failure to plead his character, 161 jurisdiction of, Wheaton's note, 412-415 FEES (see also REGULATIONS) see Compendium, 769-770 application of act of 1855 to, 526 not entitled to receive, for giving certain certificates, 139 what fees may be retained by consular agent and his principal officer, 600 court gives damages for fees collected, 252 consul may receive, for acting as commissioner to take depositions, 593 for discharge of seamen on foreign built vessel, 173 for the care of estates are official and may not be retained, 395 for care of estates may be retained, 410 consul has no right to recover from U. S. fees illegally collected, 337 for invoices, 173, 592, 618 official fees, 284, 337, 379, 410, 618 determination of what fees are official, 379 Department of State better qualified to determine what are official than Treasury, 379 redress for abuses relating to, in the case of a foreign consul not within the jurisdiction of the receiving state, 112 for receiving and delivering ship's papers, 596 recovery of, paid into Treasury, 410, 415 795 INDEX FILIPINOS protection of, 642 FLAG right to display, 3 FOREIGN CONSULS (see also CONSULS) advantages to U. S. to have its citizens appointed, 575 mav be sued onlv in federal courts (see FEDERAL COURTS) may not hold office under U. S. government, 574 question whether U. S. citizens included in provitions of conetitution re- ferring to consuls, 574 FOREIGN JUDGMENTS authentication of (see also AUTHENTICATION), 104 FOREIGN MAGISTRATES authentication of the signatures of (see OFFICIAL CHARACTER) FOREIGN LAWS (see also AUTHENTICATION) consuls have not power to authenticate, 103 are facts which must be proven, 102 must be verified by an oath, 103 FUNCTIONS Bee Compendium, 721 division of, 527 in relation to the return of Chinese, 624 enumeration of, 185, 425, 474, 517 not limited to those enumerated in statutes, 316, 517 no invariable test to decide which are official, 613 origin and development of, 474, 544 must not be such as are contrary to laws of receiving state, 550, 570, 582, 640 source of, 185, 518 discharfred by consuls of a third state, 626 GARNISHEE consul when, has not a right to invoke the jurisdiction of the federal courts, 216 IMMUNITIES (see CONSULS; DESPATCHED CONSULS; CONSULAR AGENTS) see Compendium, 750 exemption from arrest (see ARREST) of consuls charge d'affaires during absence of diplomatic representative, 45, 544 why should be more extensive in case of despatched consuls, 576 discussion of the extent of, 500 consuls entitled to certain privileges, 432 consnl may be detainted for extradition as soon as his consular office has ceased, 197 consuls and minister put on the same footing as to jurisdiction of federal courts, 136 consul not privileged from foreign attachment, 87 from imprisonment (see IMPRISONMENT OF CONSULS) incompleteness of provisions and uncertainty of doctrine in Great Britain and U. S., 572 regulation of the Institute of International Law regarding, 1-5 from jurisdiction not personal privilege of consul, 53, 136 79G INDEX IMMUNITIES— Co7i«nMed from military service, 574 and privilegea are of the same nature as those accorded a minister, 42* no well established rule, 572 security for costs, consuls need not give, 112 as regards giving testimony (see TESTIMONY) IMPOSTS OF WAR exemption from, 3 IMPRISONMENT OF CONSULS immimity from, privilege of sending state, 281 immunity would cease with dismissal by sending state, 281 inconvenience of, avoided when may appoint delegates, 426 case in Spain, 347 IMPRISONMENT OF DESERTERS (see DESERTEES) IMPRISONMENT OF SEAMEN (see JUJEISDICTION OVER SIAMEN) INCOME exempt from taxation, 3 INDIVIDUAL, PROTECTION OF see Compendium, 756-757 against illegal acts of consul, 621 INSTITUTE OF INTERNATIONAL LAW regulation adopted regarding consular immunities, 1 wish that governments take care in selecting consuls, 5 INTERNATIONAL LAW points of, definitely settled withdrawn fronj municipal authority, 575 INTERPRETATION OF STATUTES (see STATUTES) INTERPRETERS are always sworn, 104 INTERVENE right of consul to, in the administration of estates (see ADMINISTRATION OF ESTATES) meaning of, 237, 243, 246 right of consul to, in prize proceedings (see PRIZE PROCEEDINGS) INVOICES (see FEES) JUDGMENTS (see FOREIGN JUDGMENTS) JUDICIAL PROCEEDINGS consul has no authority to authenticate, 98 JURAT to certificate, 191 does not require evidence of official character of person before whem it was sworn, 322 JURIES, SERVICE ON of consular agents, 571-576 JURISDICTION what courts have in cases concerning consuls (see FEDERAL COURTS; STATE COURTS) of courts of receiving state over consul (see FEDERAL COURTS; COURTS; OFFICIAL ACTS) of consuls (see JURISDICTION, CONSULAR) over Qiimcg committed on boar4 (see JURISDICTION OVER CRIMES) 797 INDEX JURISDICTION— Continued where special power delegated to consul, law raises no presumption in sup- port of his action, 25 effect of consul's protest (see PROTEST) when U. S. courts will take, in case of seamen's wages (see JURISDICTION OVER SEAMEN) in case involving application of U. S. statutes, 304 granted by reason of treaty stipulation, 28, 122, 475 JURISDICTION. CONSULAR (see also JURISDICTION) see Compendium, 739-748 consular courts (see NAVAL COURTS) discussion of, 473-477 French consuls in 1792 did not have, over all difference between French citizens, 86 French consul had jurisdiction by treaty over suit between two Frenchmen, 173 limits of, 577 consul cannot retain papers of ship suspected of engaging in slave trade, 590 in prize cases (see PRIZES) depends upon rule of reciprocity, 29 court reviews consul's action and declares seamen destitute, 612 over seamen (see JLTIISDICTION OVER SEAMEN) marshals not required by law to execute sentence of French consul, 464 Spanish consuls competent as courts of first instance, 639, 640 Lord Talbot speaks of consuls as ha\nng, 54 none exists except by virtue of treaty stipulations, and the laws of the send- ing state, 28, 123, 475 has no right to exercise, by withholding ship's papers, 589 JURISDICTION OF CONSUL OVER CRIMES AND OFFENSES (see also CRIMINALS) see Compendium, 748 aid of local authorities in securing commitment, 370 seamen having committed a crime delivered to consul, 557 prisoner delivered over to consul, 213 local authority should assist consul to send him home for trial in case of of- fenses committed on the high seas, 558-578 in case of offenses committed on the high seas, 164, 305 committed on the high seas, discussion of, 558-568 are not judges, 456-577 follows from authority of master, 580 master cannot be compelled to convey a criminal to the U. S., 577 action is ministerial not judicial, 580 cannot punish for offenses, 459 consul paid for detention of seamen imprisoned for an offense out of wages, 190 consuls do not have jurisdiction over offenses, 606 powers that of police, 577 persons unjustly detained on board may be released by consul, 561 local authorities have no authority over crimes committed at sea, 557, 560 sending home for trial, 370 Umited to shipboard, 577 798 INDEX JURISDICTION OVER CONSULS {see also AEEEST; COUETS; DOCU- MENTS; FEDEEAL COUETS; STATE COUETS; TESTIMONY) see Compendium, 756, 758-763, 771 receiving state and its citizens not interested in abuses regarding fees of foreign consul and his manner of conducting the office, 112 consul subject to courts of receiving state for civil and criminal causes, 470, 480 subject to commitment by local magistrates awaiting requisition for extra- dition, 196 court refused to compel French consul to deliver registry at instance of British consul, 72 consuls do not have immunity from, in criminal cases, 115 reason why federal courts should have in criminal cases, 195 as soon as consul ceases to be consul may be detained for state rendition to another state, 197 when garnishee, 216 immunity from, not secured in treaties, 114 JURISDICTION OVER SEAMEN (see also CONSENT OF CONSUL; COUETS; EETUEN OF DESTITUTE SEAMEN; SEAMEN) see Compendium, 739-748 U. S. Courts must exercise, when libelant American, 154, 296 foreign consul given, even over an American, 259 American seamen enrolled in violation of U. S. law not under jurisdiction of German consul, 284 German consul has by treaty jurisdiction over American members of crew, 84 all persons shipped on American vessels entitled to relief, 640 of consul limited to arbitrament of differences of a civil nature but not of offenses, 606 Italian consul has by treaty in case of wages but not in case of assault, 323 officer who arrests seamen although notified that consul had jurisdiction guilty of assault, 366 act authorizing authorities to help consuls to carry into effect their awards, arbitrations, or decrees, 606 consent of consul before taking jurisdiction, required, 6 consent of consul necessary to take jurisdiction, 121 consent of consul could not confer jurisdiction, 174, 288 whether consul's or ambassador's consent necessary to allow courts to take jurisdiction, 457 when given by treaty to consul he alone has authority to act in first in- stance, 363 consul does not have, 459 consul's certificate will not relieve master of responsibility, 459 courts will pay great attention to wishes of consuls as regards taking juris- diction, 61 consul cannot delegate, 334 consul has no authority to have deserters delivered to captain of vessel; delivery must be made to himself or authorized deputy, 409 detention of deserters, 125 consul has no authority to receive money and effects of deserters, 603 consul has no authority to imprison deserters, 181 799 rXDEX JURISDICTION OVER SEAMEN— Continued court reviews action of consul and declares seaman destitute and entitled to wages expended by consul, 612 consul settling differences referred to him by master and member of crew acts as arbitrator, 622 power of consul to discharge deserter for cruel treatment, 207 consul's discharge final and cannot be reviewed, 223 validity of consular discharge to be judged by facts before him at the time, 373 powers given consuls in discharging seamen, 222, 223 Treasury Department not competent to review validity of consul's action in discharging a seaman, 609 courts have discretionary power to exercise, 60, 129, 174, 186, 219, 285, 287, 292 able discussion of, 151, 174 court will take in spite of treaty where no consul in district, 10 of federal courts, 376 not necessary to decide whether consul has right to exercise jurisdiction in dispute between master and seaman on American owned foreign built vessel as he acts as arbitrator, 622 given to German consuls by treaty, 152 treaty gives German consuls, 285 when courts will leave to tribunals of home country, 458 power of consul to imprison changed by act of 1840, 208 practice of securing aid of local authorities to imprison seamen, 370 case where seamen imprisoned, 459 Chitty says consuls may be pursued for false imprisonment if not careful in imprisoning seamen, 475 imprisonment by order of consul, presumed to be necessary, 98 imprisonment by order of consul does not relieve master of responsibility, 121, 164 consul responsible for abuse of power in securing the imprisonment of sea- men, 209 discussion of consular, and its limits, 452-457 limits of consular, 451 local authorities should aid consul to maintain order, 561 consent of consul to discharge of seaman does not relieve master from re- sponsibility, 192 responsibility of master when securing the intervention of the consul, 210 master not relieved from responsibility by consulting consul, 459 caae of the Newton, 452 consul must be notified before British courts will take, 178, 288 object of consular, 10 courts will not usually take when consul objects, 164, 252 consul cannot punish for offenses committed by seamen, 459 of consuls does not extend to crimes committed within the port, 457 consul has no right to detain seamen in prison, 212 consul has not power to inquire into quarrels between crew, 207 court refused to take jurisdiction over, 369 court refused to take, 458 court refuses to take where recourse had been had to consul by both parties, 374 800 INDEX JURISDICTION OVER SEAMEN— Continued court takes at request of consul, 334 case of the Sally, 452 when seamen are of third states limited to matters related to their service, 376 court takes in a case of tort, 296 has right to inquire into cruel treatment of crew and his finding might be conclusive, 107 local authorities have, unless taken away by treaty, 605 treaty provisions relating to, 452, 455 right of wages may be contested despite the consul's action, 107 court takes in a case of libel for wages, 436 consul must have right to decide who is member of crew, 597 why allowed to consuls, 451 case of the Yally, 456 LAWS OF FOREIGN STATES (see FOREIGN LAWS) LEGALIZATIONS {see AUTHENTICATIONS) LETTERS OF CREDIT (see ESTATES) LETTERS ROGATORY (see DEPOSITIONS) LICENSE consul cannot grant, giving enemy's ship exemption from seizure, 70, 190, 320 MAGISTRATE by Brazilian law consul sells damaged goods, 439 consul is a, 326 meaning of, 327 MARRIAGE see compendium, 722 consul at Frankfort in the habit of solemnizing, 250 made in presence of consul, 214, 502 consuls are not competent to solem.nize, 502, 542 MARRIED WOMAN acknowledgments of, 51, 82, 150, 191, 283, 354 MASTER should take the advice of the consul, but consul only gives advice which does not relieve master of responsibility, 410 authority to maintain order, 579-580 consular discharge a bar to suit for subsequent wages, 373 cannot be compelled to convey criminals to IT. S., 557 penalty for refusal to return destitute seamen, 283 his responsibility for imprisoning seamen not relieved by co-operation of consul, 121, 164, 255, 296, 459 responsibility for payment of wages in case of discharge (see DISCHARGE OF SEAMEN) suits against for not depositing ship's papers (see SHIP'S PAPERS) MERCHANTS, CONSULS WHEN (see CONSULAR AGENTS) MESSENGERS despatches may be sent by, 3 MILITARY SERVICE liability of consular agents to, 571-576 MILITIA (see MILITARY SERVICE) 801 INDEX MINISTER consul not a public {see NATURE OF THE CONSULAE OFFICE) MINORS. CARE OF see Compendium, 723 consul cannot appear and waive citation of minors in surrogate's court, 309 consul has right to receive distributive shares of minors of an estate of a national, 361 consul appointed guardian of minor nationals, 263 dutv of consuls to look after rights of minors when heirs, 569 consul 's duty to return minor stowaway on ship to parents, 252 MOST FAVORED NATION CLAUSE see Compendium, 751 consul of Chili benefits from, 418 application claimed by Danish consul, 308 whether stipulations of treaty with France apply to other nations by appli- cation of, not settled, 553 gives Italy privileges enjoyed by Argentine Republic, 157, 245 Russian consul secures right to administration of estate by application of, 460 does not grant Sweden all advantages of the special convention with France, 443 Swedish consul claims application of, 441, 443 NATURE OF THE CONSULAR OFFICE {see also ORIGIN OF CON- SULS) see Compendium, 775-780 acts as agent for parties in selling damaged goods, 439 consul is agent of the sending state, 121, 147, 160, 285 consul commercial representative, 198 are not merely commercial agents, 499 consul also functionary of receiving state (see Compendium, 778-780) consuls general agents for nationals, 165 not a judicial officer, 163, 439, 459, 577 not like legatus of old, 429 consuls originally municipal officers, 613 consul is an "officer in the service of his country," 112 consuls are public agents, 143, 293,' 347, 417 not a public authority of the receiving state but is a dignitary, 410 not a public minister, 107, 337, 428, 463, 470 consuls do not represent the person of their sovereign, 114 consul not representative, 337, 463 consul representative of the sending state, 76, 84, 121, 136, 149, 164, 178, 183, 18.5, 195, 293, 332 when making sale of ship same inhibitions apply as in case of trustee, 319 NATIONAL meaning of, 642 NAVAL COURT discussion of the competence of, 71 NAVAL OFFICERS affifJavitH may be sworn before "commercial and naval agent," 446 NEUTRALITY, VIOLATIONS OF consul may not protect belligerent property by the use of hie neutral name, 120 802 INDEX NEUTRALITY, VIOLATIONS OF— Continued consul not competent to make claim for, 17 consul's protest against, 72, 436 NOTARIAL ACTS (see also AFFIDAVITS; AUTHENTICATION) see Compendium, 726-728 certificates of acknowledgment are, 51 the taking of affidavits included among, 128 cannot be performed by person not regularly appointed, 621 value of such acts depends on character of person performing them, 620 certain of consuls services are, 526 consul not obliged to perform, 598 certifying the official character of a foreign notary ig not a notarial act, 598 unofficial services, 379 NOTARY PUBLIC (see also NOTARIAL ACTS; OFFICIAL CHARACTER) affidavit sworn before, valid when no consul within reach, 120 affidavits sworn before consul allowed when no notary or other official per- son at hand, 128 no certificate of, required for affidavits taken before consul, 73 quaere does the British statute authorizing consuls to perform notarial acts permit them to take affidavits, 128 certificate of, that consul competent to administer oaths, 191 certificate of, not necessary when affidavit sworn before consul, 255 authority of consul to certify instruments authenticated before, 98, 184 should attest authority of foreign functionary taking affidavit, 73 British statute requires the presence of, when affidavits are sworn before foreign magistrates, 122 not being authorized to administer oaths not competent to take patent ap- plication, 621 certificate of, regarding inability of Russian magistrates to administer oaths, 138 signature of magistrate affixed to affidavit verified by a notary public, 151 translation of an affidavit verified by a notary, 150 OATHS, ADMINISTRATION OF (see also AFFIDAVITS) see Compendium, 733-734 acknowledgment of married woman before commercial agent sufficient, 283 consular agents competent for, 266 consul not officer authoried for the, so as to be competent to take oath of consul before entering upon discharge of functions, 294 commissioners appointed to take testimony have authority for the, 104 OFFICIAL ACTS see Compendium, 755-756 of consul in shipping matters binds nationals, 189 consul's certificate competent as evidence of, 83 courts will not make subject of comment unnecessarily, 292 person acting under commission not responsible for acts done under it, 468 consul can not be held for contract founded on credit of his government, 466 attempt to recover damages from estate because of refusal of intestate to appoint as acting consul, 355 validity of consul's discharge of seamen, 373 conclusiveness of consul's acts in discharging seamen, 83, 89, 90, 107, 192, 223, 304, 373, 609, 629 803 INDEX . OFFICIAL ACTS— Contiiiued courts refuse to examine, 198 eourtg of receiving state will not examine, 296 examined by courts, 199 of consul, examination of by courts, 71 jurisdiction of federal courts must extend to all acts of consul and state courts cannot take jurisdiction for acts which they consider unofficial, 348 what fees are official, 378 French treaty only applied when consuls g^ve certified copies in the dis- charge of their specific consular powers, 401 means at disposition of individual to obtain redress for injury resulting from, 2 authenticating and noting a marine protest is an official consular service, 614 consul who had obtained money for his government acted officially and is not personally liable, 201 jurisdiction of courts of receiving state iu ease of (see Compendium, 756) not amenable to jurisdiction of receiving state in case of, 2 previous treaty stipulation necessary to subject consul to jurisdiction of re- ceiving state, iu case of, 2 consul not responsible for illegal commitment for extradition, 91 citizens of receiving stats have no concern with how consul conducts his office and what fees he charges — the redress lies without the laws of the receiving state, 112 courts of receiving state declare fees collected not according to regulations of senciing state, 252 right of consul to recover money expended, 227 every service is official which consul may not refuse to perform, 649 responsibility of consul for, previously to filing bond, 391 no invariable rule to determine what services are official, 613 of consul can be better reviewed by court of sending state, 199 acts of consul in superintending sale of ship were exclusively official acts, 319 OFFICIAL CHARACTER (see also NOTAEY PUBLIC) consul certified, of alcade, 159 certificates of acknowledgments evidence of, of persons giving, 284 consul certifies to official character, 440 of foreign magistrates, certificate of, consul has not authority to give, 98 of foreign notaries, 184 not duty of consul to attest signatures of foreign functionaries, 351 OFFICIAL SERVICES (see FEES; OFFICIAL ACTS) ORIGIN OF CONSULS 474, 545, 613 PASSPORT see Compendium, 739 not evidence, 163 PATENT application for, not to be sworn before a consul, 483 assignment of before a consul, 282 foreign notary not authorized to take oaths not competent to take, 621 muflt hnvr; applicant's oath, 621 POLICE POWER over consuls, 196 804 INDEX PORTO RICANS protection of, 642 POWERS OF ATTORNEY see Compendium, 728-729 acknowledgment of certificate of admitted, 82 acknowledgment of consular officers valid, 359 acknowledgment of before deputy consul-general valid, 354 certification of which had been executed before a foreign notary public, 98 PRESENTS U. S. consul may not receive, 647 PRESIDENT (see REGULATIONS) PRISONERS OF WAR protection of nationals, when, 425 PRIVILEGES (see IMMUNITIES) PRIZE PROCEEDINGS opinion of Portalis discussed, 68 right of consuls to represent interests of nationals, 69, 111, 151, 253 PRIZES jurisdiction of consuls in cases of, 161, 173 PROCURATION, ACTS PERFORMED BY acknowledgment of power of attorney taken before vice and deputy consul general, 82 acknowledgment to power of attorney before deputy consul general, 353 act authorizing delegation of authority, 383 consular agent acts as representative of consul, 179, 255 authentication of extradition proceedings by a vice-consul, 188 invoices may be verified by consuls of a third state or by two merchants, 626 jurisdiction over seamen conferred by act of 1840 cannot be delegated, 334 representation of interests of third state, 626 French consul authorized by treaty to appoint a delegate to represent French heirs, 317 PROPERTY of absent nationals delivered to consul (se* ESTATES) PROTECTION (see also INDIVIDUAL) of consul from assault, 410, 463 duties of consul to afford, to nationals, 435 of nationals made prisoners in time of war, 425 of consul's person and property to be sought under state laws alone, 609 of individuals requires sending state not to permit exercise of the consular office by persons not regularly appointed, 621 where seamen's wages have been misappropriated redress must be sought from consul or sureties of his bond, 612 of nationals from being swindled by insurance company, 435 treaty with Austria Hungary authorizes consul to intervene before courts to protect nationals, 435 PROTECTION OF INDIVIDUAL (see INDIVIDUAL) PROTECTION OF NATIONALS see Compendium, 722 consul intervenes and secures release from prison, 623 prevents use of sovereign's name by fraudulent company, 434 entrusted to consuls of third state during war, 627 consuls may not interfere in trial, 582 805 INDEX PROTEST autheutioating and noting of marine protests is an official consular service, 614 PROTEST OF CONSUL {see also JUEISDICTION OVER SEAMEN) see Compendium, 742-744 does not deprive court of jurisdiction, 292, 293, 326 extract from, 286 courts inclined to give heed to, 198 court takes jurisdiction in spite of, 219, 235, 296, 374, 446 court refuses to take jurisdiction, 54, 252, 285, 319, 326, 440 Text of given, 325 PROVISIONAL CONSUL acknowledgment sworn before allowed to be filed, 128 PUBLIC MINISTER meaning of, 41, 53 consul is not (see NATURE OF CONSULAR OFFICE), 53 PUNISHMENT OF CONSULS (see also JURISDICTION OVER CON- SULS) indictable felony not to pay draft for moneys belonging to government, 524 regulations governing proceedings against consuls, 611 means of procedure, 520, 524 RECEIVING STATE, LAWS OF consuls must obey, 505, 639, 640 consuls must not violate the spirit of, 551 RECIPROCITY application of the rule of, depends on congress, and judiciary not compe- tent, 29 executive not competent to make application of, 477 treatment, 291, 476 RECOGNITION OF A FOREIGN STATE appointment of a consul equivalent to, 518 RECRUITS (see ENLISTMENT OF RECRUITS) REGULATIONS. CONSULAR see Compendium, 768-770 acts of heads of executive department presumably acts of president, 379 department of state more competent than department of treasury to decide what fees are official, 379 determination of wliat fees are official, 616 president cannot declare unofficial duty imposed on consul by congress, 649 consuls subject to regulations of the proper head of department, 518 REMEDY FOR ACTS OF CONSULS (see PUNISHMENT OP CONSULS, PKOTECTION OF INDIVIDUAL) REPATRIATION (see DESTITUTE SEAMEN) REPORTS, CONSULAR lists ot rirrivjilH of ships returned, 320 REPRESENTATION consul appears in court to claim property of his nationals, 19, 148, 199, 293, 321 of absent nationals in court (see also PRIZE PROCEEDINGS), 6, 129, 199, 247, 333 consul competent to represent interests of nationals, 6, 320 806 INDEX REPRESENTATION— Continued elaiiiiB that capture of prize was in violation of the neutrality of receiving state, 72 consul has no status in court as a party but appears informally and has a right to be heard, 160 of sending state in court, 72, 119, 320 when consul represented absent nationals in court his taxable costs are to be paid before delivery, 293 of the interests of a third state, 626 REPRESENTATIVE FUNCTIONS consuls not competent to grant enemy's vessel exemption from seizure, 190 consul does not exercise, 426 consuls not competent to make claim for violation of neutrality, 17 REPRESENTATIVE OR POLITICAL CHARACTER {see NATURE OF THE CONSUL AE OFFICE) RESIDENCE, CONSULAR inviolability of, 3 RESPONSIBILITY OF CONSUL {see also OFFICIAL ACTS) not duty of government to give consul advice as to the personal responsi- bility which his action may have incurred, 594 must pay draft for public moneys, 524 for acts in relation to em])loyment of wages of seamen, 612 RESPONSIBILITY OF GOVERNMENT FOR ACTS OF CONSUL see Compendium, 771-772 when directs to make certain purchases, 226 government not responsible for illegal acts of consul, 496 payment of wages of interpreter, 30-33 when contravening laws of the receiving state, 549 government not responsible for consul 's misappropriation of seaman's wages, 612 RETURN HOME OF CONSULS three months salary allowance for, 478 RETURN OF CRIMINALS (see CRIMINALS) RETURN OF DESTITUTE SEAMEN return of seamen accused of crime not included in the act concerning, 557 duties of consul regarding, 459 seaman does not lose right to, when discharged with his consent because of illness, 89 deposit of ship's papers meant to secure, 185 value of consuls certificate in suit because of masters refusal to undertake, 283 RIGHTS OF CONSULS {see IMMUNITIES) SAILORS {see SEAMEN) SALARY see Compendium, 765-766 claim of vice consul for salary of consul general while absent, 447 time at which consul's salary begins, 379 right to, previously to executing bond, 391 congress alone has power to provide for, 84 payment of consul's, 410 three months' salarj' allowed for consul's return home, 478 when consul may receive, for two position, 595 807 INDEX SALARY— CoTi/tnixed right to recover consul's salary paid to vice consul, 410 three month 's salary allowed to widows of consuls dying abroad, 478 SEAL, CONSULAR consular agent subordinate to commercial agent properly used seal con- taining words U. S. Commercial Agency, 328 impression must be distinct to impart a legal authority, 25 does not prove itself except in certain cases, 322 SEALING OF CARS consuls must do, 619 SEAMEN {see also DISCHARGE OF SEAMEN; JURISDICTION OVEE SEA- MEN; SEAMEN, CAEE OF) nature of the complaints to be submitted to consul, 206 Cubans and Filipinos are not American seamen, 640 imprisonment of, by consul, to be presumed to be necessary, 98 imprisonment of, condemned, 333 imprisonment of, with co-operation of consul will not relieve master of re- sponsibility, 121, 164, 296 nationality of, to be considered that of flag, 84, 175, 259, 289, 640 Porto Rican is an American seaman, 640 protection of when made prisoner in time of war, 425 punishment of, 304 right to see the consul, 205, 284 SEAMEN, CARE OF see Compendium, 738 American courts will protect, 84 act of 1803 does not allow consuls to aid destitute seamen from a vessel of war, 484 court reverses consuls action and declares seaman destitute, 612 prepayment of wages, 297 discharge of sick seaman and payment of expenses, 189 assent to discharge was not intended to make sick sailor lose right to be returned home, 89 duty of consul to return minor stowaway to parents, 252 wages, 185 responsibility of consuls in use of wages of seaman, 612 SECURITY FOR COSTS consul need not give, 112 SHIP {see VESSEL) SHIPPING, CARE OF see Compendium, 738 consul sells damaged goods, 439 when consul has authority to sell ship, 496 SHIP'S PAPERS deposit of, with the consul, 179, 184, 231, 294, 373, 487, 488, 596 consul has not right to detain, to compel payments except in certain cases, 589 consul cannot detain papers of ship suspected of being engaged in slave trade, 590 master liable for refusal to d^^posit, 554 SIGNATURES, VERIFICATION OF {see AUTHENTICATION OF SIG- NATUEES) 808 INDEX STATE COURTS see Compendium, 761-762 claim to the jurisdiction of federal courts may be made at any stage of the proceedings, 256 jurisdiction not withdrawn when party becomes consul, 219 have jurisdiction over suits brought by consuls, 218, 320, 447 have jurisdiction over suits concerning consuls in civil suits, 139, 343 consul subject to commitment awaiting requisition, 196 in case of Davis v. Packard the exclusion of the jurisdiction of the state courts was not put upon the ground of the exclusive jurisdiction of the supreme court but upon the act of 1789, 169 consuls may bring suits in, 258 consuls may commence suits in, 414 not excluded from jurisdiction over suits by or against consuls, 318 reasons why should not have jurisdiction over consuls, 348 previous express exclusive of jurisdiction over suits against consuls repealed, 164 do not have jurisdiction over suits against consuls, 119, 135, 254, 258, 325, 349, 447 do not have jurisdiction even for unofFicial acts, 348 STATE DEPARTMENT (see DEPAETMENT OF STATE) STATE OFFICERS consuls are for certain purposes, 322 STATUTES RELATING TO CONSULS interpretation of, 192-196, 617 SUBJECTS receiving state may refuse to received, as consuls, 106 SUBPOENA (see DUCES TECUM) SUMPTUARY TAXES exemption of consuls from, 3 SUPERIOR CONSULAR OFFICERS requisitions for extradition to be made by, 92 SUPREME COURT (see FEDEEAL COUETS) SURVEY OF VESSELS consuls competent to order in behalf of master, 316 acts officially in ordering, 319 TAXES which consuls are exempted from, 3 exemption from, not essential, 20 TELEGRAPHIC CORRESPONDENCE right to employ, 3 TERMINATION see Compendium, 774 TERMINOLOGY meaning of consul, vice consul, commercial agent and consular agent, 518 TESTIMONY (see also DEPOSITIONS) courts will not require testimony which usages of the receiving state do not admit of, 103 courts require the best obtainable, 103 TESTIMONY, GIVING OF, BY CONSULS see Compendium, 760 consuls not required to appear and give, 2 809 INDEX TESTIMONY, GIVING OF, BY CONSULS— Confmued British minister complains that consuls not allowed to give, in self de- fense, 5S3 French consul exempted by treaty from compulsory process to give testi- mony, 145 prisoner detained for extradition has right to cross-examine consul making complaint, 155 in suits brought in consul's name by government, 231 treaty may exempt consuls from appearing in court to give, 144, 418 subject to ordinary rules, 582 TESTIMONY OF CONSULS in suits brought in their name for the government, 231 TRADE proper subject for employment of an ambassador, 53 with the enemy, licenses to {see LICENSES) consuls engaged in enjoy no privileges not accorded other merchants, 7, 19, 20, 98, 154, 198, 213, 310 TRADE, CONSULS ENGAGED IN {see CONSULAE AGENTS) TRADING CONSULS {see CONSULAE AGENTS) TRANSLATIONS see Compendium, 728 authentication of, 104 of atridavits sworn before foreign magistrates, 150 of consuls not on oath have no greater validity than those made by any respectable individual, 104 TREASURY DEPARTMENT not competent to review more than the arithmetical accuracy of the account of consul discharging a seaman, 609 appointment of special agents authorized, 619 TREATIES see Compendium, 724-725, 748, 750-752 courts bound to recognize, 10 stipulation in, required for surrender of deserters, 399 treaty made to apply to state embracing contracting state, 602 consul must appeal to court to secure enforcement of, 652 observance of, 367, 402, 423 course to pursue when considered that treaties are not observed, 402 stipulation giving consul jurisdiction over seamen not intended to oust local tribunals in all cases, 10 TREATY-MAKING-POWERS limits of, 141, 151, 155, 641 VESSELS (nee also WAESHIP) enemy's (-see LICENSE) fee for discharge of seaman from foreign built, 173 nationality of American owned foreign built yacht, 622 American government gives privileges of American navigation to, owned by conBuls, 316 VICE-CONSUL see Compendium, 766-767 appointments of, 383, 384, 540 definition of, 383 meaning of term, 528 810 INDEX VICE-CONSUL— ConftriMed mentioned, 188 formerly not subordinate and temporary officers, 389 WAGES OF SEAMEN {see DISCHARGE OF SEAMEN) consul has no authority to receive, of deserters, 603 prepayment of, 298 WAR {see MILITARY SERVICE; ENLISTMENT) see Compendium, 748-749 representation of the interests of a third state during, 626 WARSHIP power of consul to call upon, to detain criminal, 578 consul calls upon to seize vessel with suspicious papers, 581 WIDOW OF CONSUL entitled to three months' salary, 478 WITNESS consul not compelled to appear in court as, 418 WITNESS, CONSUL AS {see TESTIMONY) WRECKS consul acts as auctioneer to sell damaged goods, 439 property from, deposited with consul, 376 811 This book is DUE on the last date stamped below i;\N 14 1930 lHAV 2 3 193? .."JN 1 2 1935 ^ ^' .c .^^, MAIN EIVED .OAN DESK osc LA.M. FIB 2 s FormL-9-15m-ll,'27 23 1964 <1I1 ^I1I2I3I- •^1 lo^M' 1975 1975