DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE
69. +General Development.+
70. +Diplomatic Agents.+
(_a_) Historical.
(_b_) Rank.
(1) Diplomatic agents of first class.
(2) Envoys extraordinary.
(3) Ministers resident.
(4) Chargés d'affaires.
71. +Suite.+
(_a_) Official.
(_b_) Non-official.
72. +Who may send Diplomatic Agents.+
73. +Who may be sent.+
74. +Credentials.+
75. +Ceremonial.+
(_a_) General.
(_b_) Reception.
(_c_) Precedence and places of honor.
(_d_) Prerogatives.
76. +Functions.+
(_a_) Internal business.
(_b_) Conduct of negotiations.
(_c_) Relation to fellow-citizens.
(_d_) Reports to home government.
77. +Termination of Mission.+
(_a_) Through death of agent.
(_b_) In ordinary manner.
(_c_) Under strained relations.
(_d_) Ceremonial of departure.
78. +Immunities and Privileges.+
(_a_) Inviolability.
(_b_) Exterritoriality and exemptions.
(1) Criminal jurisdiction.
(2) Civil jurisdiction.
(3) Family and suite.
(4) House of ambassador.
(5) Asylum.
(6) Taxation.
(7) Religious worship.
79. +Diplomatic Practice of the United States.+
80. +Consuls.+
(_a_) Historical.
(_b_) Grades.
(_c_) Nomination and reception.
(_d_) Functions.
(_e_) Special powers in Eastern states.
(_f_) Privileges and immunities.
(_g_) Termination of consular office.
§ 69. General Development
Diplomacy may be broadly defined as the art and science of international
negotiation. The conditions which make possible established relations
among states are of comparatively recent origin. In the days when
stranger and enemy were not distinguished, and when "strange air made a
man unfree," there could be no extended relations among states. In very
early times, however, states had some relations with each other, and
general principles were observed in carrying on such business as might
be necessary. These growing relations have given rise to what is known
as the right of legation. Sometimes a right of intercourse between
states has been claimed on the ground that the citizens of one state
cannot be excluded from the natural advantages of another state, on the
ground that all men have an equal right to innocent use of the earth's
resources, or on more abstract grounds of moral duty variously
interpreted. As the actual practice of states never has recognized such
a right to contend for it would hardly be necessary. States put
restrictions upon commerce, even to the exclusions of goods and persons.
In some cases where the terms of the state enactment may not be
prohibitive, the conditions of admission amount to practical
prohibition.[204]
The influence of commerce in its many forms, the idea of unity of
mankind in its various manifestations, the growth of neighborhood on the
part of European states, and the necessity of respect for each other on
the part of these states, made interstate relations imperative and
convenient. While the right of intercourse might be questioned, the
necessity and convenience of interstate relations admitted of no
question.
§ 70. Diplomatic Agents
(_a_) =Historical.= In very early times special privileges were extended
to heralds, ambassadors, or other bearers of the state will. Laws[205]
and history record as a fact this practice which had long been
observed. The ambassador was often one who in his own state held some
priestly office. In the days of the Roman dominance, the office of
ambassador was commonly exercised by one holding a religious office, and
while the unity represented by the church remained prominent, its
officials were often ambassadors. Both from necessity and from the
sacred character of the person, the ambassador was usually regarded as
inviolable. The person of the ambassador was respected long before there
was any recognition of the rights and dignity of states as states. In
order that there might be any such intercourse, it was necessary that
the agents should not be placed in undue personal peril.[206]
With the preëminence of the Italian city states in the Middle Ages there
came the development of diplomacy as an art. The most distinguished men
of the times were called to this state service. Machiavelli's name is
inseparably linked to one school of diplomacy. Dante, Petrarch,
Boccaccio, and others whose names have become famous, were sent on
missions.[207]
During the thirteenth century, Venice outlined the policy which her
ambassadors should follow, and there the system of foreign
representation became well established. This system included the
granting of a commission, instructions, letter of credence, attachés,
etc. Italy may, indeed, be called the home of the diplomatic system.
For many years, in fact till comparatively recent times, ambassadors
were looked upon with suspicion, as spies whom monarchs were more
willing to give than to receive. Gradually, however, the practice of
sending and receiving ambassadors was seen to have much value. During
the fifteenth century, which marks the beginning of the modern period in
the history of diplomacy, the practice of sending permanent ambassadors
seems to have arisen. There may have been isolated cases of sending of
permanent ambassadors before this time, but from the fifteenth century
the practice became more and more common, though the different countries
did not observe any uniform regulations as to personnel, procedure, or
in other respects. From this time diplomacy became more of a career, and
one going on a mission to a foreign country received careful preparation
that he might outwit the representatives of the state to which he was
sent. Sir Henry Wotton's oft-quoted definition of an ambassador, "An
ambassador is an honest man, sent to _lie_ abroad for the good of his
country,"[208] describes the attitude taken in many countries toward the
office, when early in the seventeenth century he wrote the definition in
Christopher Flecamore's album. Gradually the rules of international
negotiation became established, and treatises upon the subject appeared.
The Peace of Westphalia in 1648, which marks the beginning of modern
international relations, showed that modern diplomacy had already
obtained a recognition, and served to give it a more definite form. This
date serves as a boundary to the first division of the modern period in
the history of diplomacy. The years from the early part of the fifteenth
century to the Peace of Westphalia are the years of beginnings. From
this time the system of permanent ministers, which so greatly changed
the character of international negotiations, became almost a necessity
through the development of the equilibrium of the states of Europe.[209]
During the years 1648 to 1815 the relations of states became more
complex, and the business of international negotiation more delicate.
Diplomatic practice, always tending to look to precedent, suffered
severe strains under the ambitious monarchs occupying the thrones of
Europe after the Peace of Westphalia. Principles and precedent were
often disregarded to obtain political ends. So great was the friction
that at length some of the more commonly disputed questions were settled
at the Congress of Vienna, 1815.
(_b_) The question of relative =rank= of state agents gave rise, in the
days before the Congress of Vienna, to many difficulties. The protocol
of that Congress of March 9, 1815, together with the eighth article
adopted at the Congress of Aix-la-Chapelle, Nov. 21, 1818, give the
basis of present practice as follows:--
"In order to prevent in future the inconveniences which have frequently
occurred, and which may still occur, from the claims of Precedence among
the different Diplomatic characters, the Plenipotentiaries of the Powers
who signed the Treaty of Paris have agreed on the following Articles,
and think it their duty to invite those of other Crowned Heads to adopt
the same regulations:--
+Division of Diplomatic Characters+
+Art.+ I. Diplomatic characters are divided into Three classes: That
of Ambassadors, Legates, or Nuncios.
That of Envoys, Ministers, or other persons accredited to Sovereigns.
That of Chargés d'Affaires accredited to Ministers for foreign
affairs.
+Representative Character+
+Art.+ II. Ambassadors, Legates, or Nuncios only shall have the
Representative character.
+Special Missions+
+Art.+ III. Diplomatic characters charged with any special Mission
shall not, on that account, assume any superiority of Rank.
+Diplomatic Precedence+
+Art.+ IV. Diplomatic characters shall rank in their respective
classes according to the date of the official notification of their
arrival.
+Representatives of the Pope+
The present Regulation shall not occasion any change respecting the
Representative of the Pope.
+Form for Reception of Diplomatic Agents+
+Art.+ V. There shall be a regular form adopted by each State for the
reception of Diplomatic Characters of every Class.
+Diplomatic Agents of Courts Allied by Family
or Other Ties+
+Art.+ VI. Ties of consanguinity or family alliance between Courts
confer no Rank on their Diplomatic Agents. The same rule also applies
to political alliances.
+Alteration of Signatures in Acts or Treaties+
+Art.+ VII. In Acts or Treaties between several Powers that admit
alternity, the order which is to be observed in the signatures of
Ministers shall be decided by ballot.[210]
+Art.+ VIII. It is agreed between the Five Courts that Ministers
Resident accredited to them shall form, with respect to their
Precedence, an intermediate class between Ministers of the Second Class
and Chargés d'Affaires."[211]
To the articles, except the last, Austria, Spain, France, Great Britain,
Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and
Sweden were not parties to the eighth article. Theoretically these rules
are binding only upon those states parties to the treaties, but
practically they are accepted by all civilized states.
The four grades are as follows:--
1. Ambassadors, legates, and nuncios.
2. Envoys, ministers, or other persons accredited to sovereigns.
3. Ministers resident.
4. Chargés d'affaires.
The first three grades are accredited to the sovereign. The fourth
grade, chargés d'affaires, is accredited to the minister of foreign
affairs.
The rank of the agent does not necessarily have any relation to the
importance of the business which may be intrusted to him. The titles
given to the different diplomatic agents, at the present time, are in a
general way descriptive, as follows:--
(1) _Diplomatic agents of the first class_ are held to represent the
person of the sovereign. Ambassador ordinary usually designates one
holding a permanent mission. Ambassador extraordinary designates one on
a special mission, or having power to act in exceptional circumstances.
This, however, is most often a title of somewhat superior honor giving
no other advantage. Papal legates rank, and for practical purposes, are,
ambassadors extraordinary, though representing particularly
ecclesiastical affairs and the Pope as head of the Church. Legates are
chosen from the cardinals and sent to countries recognizing the papal
supremacy. Nuncios of the Pope rank as ambassadors ordinary on a
permanent mission, and are usually intrusted with power to transact
general affairs.[212]
(2) _Envoys extraordinary, envoys ordinary, and ministers
plenipotentiary_ have in general the same functions and rank. With these
rank the papal internuncio. The general idea is that the agents of the
second class do not stand for the person of the sovereign, but for the
state.
(3) _Ministers resident_ are regarded as upon a less important mission
than the agents of the first or second class. They are frequently sent
by the greater powers to the lesser powers.
(4) _Chargés d'affaires_ ceremonially rank below the ministers resident.
They are accredited to the minister of foreign affairs, while members of
the first three classes are accredited to the sovereign. A chargé
d'affaires may perform the functions of the higher grades of agents and
has the same general privileges. When a consul is charged with a
diplomatic mission he ranks with the chargés d'affaires. Commissioners
on various missions are sometimes accorded the same rank; but, as they
do not bear the title, commissioners cannot claim the rank of the chargé
d'affaires, though in their functions there may be no difference.
There is no rule as to the grade of diplomatic agent which one state
shall send to another, though it was formerly held that only states
entitled to royal honors could send ambassadors. It is now customary for
states to agree among themselves as to the relative rank of their
diplomatic agent. Thus the United States by a recent act provided that
"whenever the President shall be advised that any foreign government is
represented or is about to be represented in the United States by an
ambassador, envoy extraordinary, minister plenipotentiary, minister
resident, or special, envoy or chargé d'affaires, he is authorized in
his discretion to direct that the representative of United States to
such government shall bear the same designation. This provision shall in
no wise affect the duties, powers, or salary of such representative."[213]
The rank of a diplomatic agent is a mark of dignity and honor
particularly of consequence in matters of etiquette and ceremonial.
Reciprocity between states is the general rule in the grade of agents.
The old theory that agents of the first rank had access to the ear of
the sovereign is no longer held, and all grades alike represent both the
sovereign and the state from which they come.
§ 71. Suite
The personnel of a mission may be distinguished as the official and the
non-official.
(_a_) The =official suite= consists of the functionaries, and varies in
number according to the dignity and importance of the mission. Formerly
the number was scrutinized with great care, owing to the fear that a
numerous suite might endanger the safety of the receiving state. The
official suite may include, (1) the counsel to the mission, (2) the
secretaries, (3) the attachés, military, naval, and others, (4) the
interpreters and dragomans, (5) the clerks and accountants, (6) the
couriers, (7) the chaplain, (8) the doctor, and in some instances other
officers necessary for the performance of the official functions.
(_b_) The =non-official suite= includes the family of the diplomatic
agent and those in his household employ. This may include, beside his
immediate family, (1) the private chaplain, (2) the private doctor, (3)
the private secretaries, (4) the domestic servants of various grades.
§ 72. Who may send Diplomatic Agents
It is the general rule that sovereign states only may send ambassadors
or other diplomatic agents. Sometimes diplomatic relations are
maintained between states when both are not fully sovereign, as in the
relations between Bavaria, a member of the German Empire, and France. In
general, where the sovereignty of a state is not complete, its right of
legation is fixed by the treaty which impairs its sovereignty. A state
which has not full sovereign powers may have a partial right of
legation, either active or passive, or a right to send diplomatic agents
with limited functions.
The sending of a diplomatic agent is essentially an act of the sovereign
person, whether he be a monarch, president, council, or have other
title. The domestic law determines who this person shall be.
International law makes no distinction.
In each state a department, usually called the department of foreign
affairs, has the business of international intercourse in charge. The
organization of this department and the general methods are matters of
domestic law. All foreign states need to know is to what extent this
department is competent to carry on negotiations.
§ 73. Who may be Sent
Before actually sending a diplomatic agent, a state usually obtains
assurance from the receiving state that the proposed agent will be an
acceptable person. If the proposed agent is a _persona non grata_, it is
held that the foreign state is not obliged to give its reasons for
refusing to receive him. To refuse a given person does not imply any
lack of courtesy to the sending state on the part of the refusing state.
A state may refuse to receive one of its own citizens as the minister of
a foreign state. Sometimes states have refused to receive those who have
in the sending state taken positions manifesting hostile disposition
toward the receiving state.
In 1885 the Italian government refused to receive Mr. Keily as United
States representative on the ground that he had denounced the overthrow
of the temporal power of the Pope. It was considered probable that one
who had taken so decided an attitude toward an action of the government
to which he was sent would hardly be acceptable. Mr. Keily had just
before been refused by Austria-Hungary on the ground that his wife was a
Jewess and his marriage only a civil one. President Cleveland showed his
attitude toward this action in his first annual message, 1885. "The
Austro-Hungarian government finally decided not to receive Mr. Keily as
the envoy of the United States, and that gentleman has since resigned
his commission, leaving the post vacant. I have made no new nomination,
and the interests of this government at Vienna are now in the care of
the secretary of legation, acting as chargé d'affaires _ad
interim_."[214]
§ 74. Credentials, Instructions, Passport
Before starting upon his mission, a diplomatic representative receives,
if of one of the first three classes, from the head of the state, if of
the fourth class (chargé d'affaires) from the minister of foreign
affairs, a letter of credence. In the United States the President signs
the letters of credence of diplomatic agents above the rank of chargé
d'affaires. In these instances the letter is addressed to the head of
the foreign state. In the case of chargé d'affaires the letter is
addressed to the minister of foreign affairs and signed by the Secretary
of State. A letter of credence gives the name, the character and general
object of the mission, and requests for the agent full faith and
credence as the state's representative. In case of representatives to
Turkey, besides the letter of credence to the Sultan, letters are also
taken to the grand vizier and to the minister of foreign affairs.
Representatives of the Pope carry in place of letters of credence papal
bulls. Sometimes a diplomatic agent receives also letters of
recommendation to persons of importance in the foreign country. These
letters have a semi-official character in many cases. While a letter of
credence may give power to open treaty negotiations, it is usual to give
a special letter conferring _full powers_ or _general full powers_ to
close and sign a treaty, or to act in behalf of the state in some manner
not covered by his instructions. These letters are commonly letters
patent.
The diplomatic agent also customarily receives instructions which may be
either for his own guidance or to be communicated to the foreign state.
If to be communicated to the foreign state, the instructions make more
fully known his special functions. In all cases the agent is bound by
his instructions, and in case of doubt as to method of action it is
easy, in these days of rapid communication, to entertain a matter _ad
referendum_.
The diplomatic agent also receives for himself, family, and suite a
special passport. The special passport "differs from the ordinary
passport in that it usually describes the official rank or occupation of
the holder, and often also the purpose of his traveling abroad, while
generally omitting the description of his person."[215] This may serve
not only the purpose of the ordinary passport, but may also give an
official introduction to the bearer.
The papers furnished to diplomatic representatives of the United States
include:--
1. A sealed letter of credence to the head of the state or minister of
foreign affairs according to rank of the representative.
2. "An open office copy of the letter of credence."
3. The special passport above mentioned.
4. "A copy of the Register of the Department of State."
5. A letter of credit upon the bankers of the United States.
6. A copy of Instructions to the Diplomatic Officers of the United
States.
7. A copy of the Consular Regulations of the United States.
(FORM OF)
LETTER OF CREDENCE
A.............. B..............,
_President of the United States of America._
To ................................
................................
................................
+Great and Good Friend+:
I have made choice of ...............................
one of our distinguished citizens, to reside near the Government of
Your ............ in the quality of ...............................
He is well informed of the relative interests of the two countries and
of our sincere desire to cultivate to the fullest extent the friendship
which has so long subsisted between the two Governments. My
knowledge of his high character and ability gives me entire confidence
that he will constantly endeavor to advance the interest and prosperity
of both Governments, and so render himself acceptable to Your ......
............
I therefore request Your ............ to receive him favorably and
to give full credence to what he shall say on the part of the United
States, and to the assurances which I have charged him to convey to
you of the best wishes of this Government for the prosperity of ......
............
May God have Your ............ in His wise keeping.
Written at Washington this ............ day of ............ in the
year ................
Your good friend,
A ............ B ............
By the President,
............................
_Secretary of State._
§ 75. Ceremonial
(_a_) =General.= In certain countries diplomatic ceremonial has been
very elaborate and complex. The tendency during the nineteenth century
has been toward simplification. Each state has the power to determine
its own ceremonial for the most part. Of course no state can disregard
established rules as to rank, precedence, and similarly generally
recognized practices. At the time when these practices originated it was
imperative that there should be some fixed mode of procedure which a
state could follow without giving offense in its treatment of a foreign
representative. Much of the ceremonial became fixed during the latter
part of the seventeenth and during the eighteenth century. In the days
of absolutism the monarch naturally demanded such recognition of his
representative in a foreign country as befitted his own estimate of the
dignity of the monarchical office. It may not be unfortunate that the
monarch placed a high estimate upon the sovereign office and devised a
ceremonial commensurate with this estimate, for what was once done out
of respect for and in response to the demand of a personal sovereign, is
now done out of respect for the dignity of the state itself. Thus in the
days of more democratic sovereignties international representatives are
clothed with a dignity which both elevates the attitude of participants
in international negotiations and gives greater weight to their
conclusions. The ceremonial also fixes a definite course of procedure
which any state may follow without giving offense to another, whether it
be weak or powerful.
(_b_) While the minor details of the ceremonial of =reception= of a
diplomatic agent are not invariable, certain customs are well
established. A diplomat officially notifies the receiving state of his
arrival by sending, (1) if he be of the first rank, a secretary of the
embassy to the minister of foreign affairs, with a copy of his letter of
credence and a request for a day and hour when he may have an audience
with the head of the state in order to present his credentials, (2) if
of the second rank, while sometimes the above procedure is allowed, he
usually makes the announcement and request in writing, (3) if of the
third rank he always observes the last-mentioned procedure, (4) if of
the fourth rank, chargé d'affaires, he notifies the minister of foreign
affairs of his arrival and requests an audience.
The audience may be for any grade more or less formal, public or
private. Usually diplomats of the first rank are received in public
audience. At the audience the diplomat presents his letter of credence,
and usually makes a brief address, of which he has earlier furnished a
copy to the minister of foreign affairs in order that a suitable reply
may be prepared. Diplomats of the second rank customarily receive a
similar solemn audience. This may or may not be granted to ministers of
the third rank. Official visits, varying somewhat in ceremonial in
different states, follow.
(_c_) From the time when permanent missions began to be common, conflict
between the representatives of different states made necessary fixed
rules of =precedence=. As Wicquefort said in the latter part of the
seventeenth century, "One of the things that most hinders Embassadors
from paying one another civilities, is the Contest they have concerning
Honours and Rank; not only on Account of the Competition of their
Masters, but sometimes also by Reason of some Pretensions they have
amongst themselves."[216] Wicquefort's citations of cases give ample
evidence of the confusion prevailing in his day. Bynkershoek, in "De
Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely
less in 1721, though the rank by title was coming to be more fully
recognized. Vattel in 1758 shows that there had arisen a more definite
ceremonial[217] and a fairly clear gradation, yet as this had never been
agreed to by any considerable number of states, and was not in
accordance with any generally recognized principle, there were contests
still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818)
many of the disputed points in regard to precedence were adjusted.
Certain general propositions are now admitted, such as, that no diplomat
can pretend to special honors or immunities above other diplomats of the
same rank.[218] The rule of the Congress of Vienna is followed, by which
diplomats of the same class rank according to the precedence in the date
of the official notification of their arrival.
Places of honor are now quite definitely fixed. On ceremonial occasions,
where the representatives are seated at a table, as in an international
congress, it may be somewhat varied as fronting the main window,
opposite the main entrance to the room, in the place receiving the light
over the left shoulder. When the place is determined by the relation to
the head of the table or the presiding officer, the first honor, except
in Turkey, is at his right, the second at his left, the third in the
second place on the right, the fourth in the second place on the left,
and so on. In processions the place of honor is sometimes first,
sometimes last. For relatively short processions, certain more definite
rules are usually observed. When only two participate, the first place
is the place of honor; when three participate, the middle place, the
place in advance being the second honor and the place in the rear the
third; when four participate, the second place is the place of honor,
the place in advance the second, the third and fourth being in honor in
order; when five participate, the middle is the place of honor, the
second place being the second in honor, the first the fourth in honor,
the fourth the third in honor, and the fifth the fifth in honor.[219]
To avoid friction as to place of honor in signing treaties, etc., the
principle of the alternat is usually followed, by which the copy going
to a given nation has the name of its own representative first in
order.[220] Sometimes the order is determined by lot, and sometimes is
alphabetical in the order of the names of the states parties to the
treaty.
(_d_) Certain =prerogatives= are held to appertain to the office of
ambassador and to diplomats of the first rank. Among these are: (1) the
title of Excellency, (2) the right to remain covered in the presence of
the sovereign, unless the sovereign himself is uncovered, (3) the
privilege of a dais in his own home, (4) the right to use a "coach and
six" with outriders, (5) military and naval honors, (6) the use of the
coat of arms over the door, (7) invitations to all court ceremonies.
This last is usually extended to all diplomats. Those of lower rank than
the ambassador sometimes claim modified forms of the above prerogatives.
Many of the interesting phases of diplomatic ceremonial are survivals of
forms which in earlier days were most jealously and strenuously guarded.
The closer relations of states and better understanding of mutual
relations have made unnecessary the observance of many forms once vital
to harmony.
Many courtesies are regarded as due diplomatic representatives by virtue
of their rank. These are not uniform at the various courts, but
generally include, notification of accession to the throne,
notifications of births and deaths in the royal family, congratulations
and condolences as public events warrant, and many others.
Diplomats are also entitled to receive salutes, which are usually
arranged for in advance. The ambassador receives a salute of fifteen
guns; the minister, eleven; and the chargé d'affaires, nine.
§ 76. Functions
The functions of a diplomatic representative in a broad sense are, to
direct the internal business of the legation, to conduct the
negotiations with the state to which he is accredited, to protect
citizens of his state[221] and to issue passports under proper
restrictions,[222] and to make reports to his home government.
(_a_) The =internal business= of the mission may in general be
classified as concerned with (1) the custody of archives, (2) diplomatic
correspondence[223] involving at times the use of cipher, (3) record of
the work of the legation, (4) the exercise of a measure of jurisdiction
over the household. In grave cases the diplomat must send the offender
home for trial, or under certain circumstances, if a native of the
state, hand the offender over to the local authorities. Otherwise his
jurisdiction is mainly of a minor disciplinary sort. The assumption of
such authority as claimed by Sully, in 1603, when he tried and condemned
to death one of the French suite, is now absolutely denied. Indeed,
James I. pardoned the offender whom Sully had delivered to him for
execution. In 1896 Great Britain denied the right of the Chinese
ambassador to detain a Chinaman who was held in the legation under
charge of political conspiracy, and compelled his release.
(_b_) The =conduct of negotiations= with the state to which he is
accredited may involve, (1) verbal communications with the sovereign or
ministers. The purport of such communications may be preserved in
writing known as _briefs of the conversation_, or _aids to the memory_.
In cases of somewhat formal conversations the written reports may be
called _notes_ or _memoranda_. To the _procès-verbaux_, or reports of
international conferences for the discussion of treaty stipulations, the
name _protocol_ is usually given. (2) Formal communications with the
sovereign or ministers, (3) the maintenance of diplomatic privileges and
immunities, (4) such action as may be necessary to protect his state's
interests so far as possible, and particularly its treaty rights.
(_c_) The diplomat's =relations to the citizens of his own country= are
largely determined by the domestic law of his own state, and usually
involve, (1) a measure of protection to his fellow-citizens; (2) issue
and _visé_ of passports, and in some countries the issue of certificates
of nationality and travel certificates; (3) in cases of extradition of
citizens of his own state from the foreign state, the presentation of
the requisition for extradition; and in cases of extradition of citizens
of the state to which he is accredited from his own state, usually the
certification that the papers submitted as evidence are "properly and
legally authenticated."[224] In some states diplomats are authorized to
perform notarial acts.[225] (4) The exercise of a reasonable courtesy in
the treatment of his fellow-citizens.
All these functions vary with local law. The practice is not uniform, as
is evidenced in the inconsistencies in regard to regulations as to the
marriage by the diplomatic agent.[226]
(_d_) In making reports the diplomat is supposed to =keep his own
government informed= upon, (1) the views and policy of the state to
which he is accredited, and (2) such facts as to events, commerce,
discoveries, etc., as may seem desirable. These reports may be regular
at specified periods, or special.
§ 77. Termination of Mission
The mission of a diplomatic representative may terminate in various
ways.
(_a_) A mission may terminate =through the death of the diplomat=. In
such a case there may properly be a funeral befitting the rank of the
diplomat. The property and papers of the mission are inventoried and
sealed by the secretary, or in case of absence of secretaries and other
proper persons, by the diplomats of one or more friendly powers. The
inheritance and private property of the diplomat, of course, follow the
law of his country, and the property of the deceased is exempt from
local jurisdiction.
(_b_) The mission may terminate =in ordinary course= of events, by (1)
expiration of the period for which the letter of credence or full power
is granted, (2) fulfillment of the purpose of the mission if on a
special mission, (3) change of grade of diplomat, (4) the death or
dethronement of the sovereign to whom the diplomatic agent is
accredited, except in cases of republican forms of government. In the
above case new letters of credence are usually regarded as essential to
the continuance of the mission. The weight of opinion seems to indicate
that the mission of a diplomat is terminated by a change in the
government of his home country through revolution, and that new letters
of credence are necessary for the continuance of his mission.
(_c_) A mission may be interrupted or broken off through =strained
relations= between the two states or between the diplomatic agent and
the receiving state. (1) A declaration of war immediately terminates
diplomatic relations. (2) Diplomatic relations may be broken off by the
personal departure of the agent, which departure is for a stated cause,
such as the existence of conditions making the fulfillment of his
mission impossible, or the violation of the principles of international
law. (3) Diplomatic relations may be temporarily suspended, owing to
friction between the states, as in the case of the suspension of
diplomatic relations between Great Britain and Venezuela from 1887 to
1897, owing to dispute upon questions of boundary. In 1891 Italy
recalled her minister from the United States on account of alleged
tardiness of the United States authorities in making reparation for the
lynching of Italians in New Orleans on March 14, 1891.[227] (4) A
diplomatic agent is sometimes dismissed either on grounds personal to
the diplomat, or on grounds involving the relations of the two states.
When, in 1888, the demand for the recall of Lord Sackville, the British
minister at Washington, was not promptly complied with, Lord Sackville
was dismissed and his passport sent to him. Lord Sackville had, in
response to a letter purporting to be from an ex-British subject, sent a
reply which related to the impending presidential election. His recall
was demanded by telegraph Oct. 27. The British government declined to
grant it without time for investigation, and his passport was sent him
on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister
at Washington, having been for some time past such as materially to
impair his usefulness to his own Government, and to render intercourse
with him for either business or social purposes highly disagreeable," it
was the expressed opinion of the President that "the interests of both
countries would be promoted ... if the head of the Russian legation here
was to be changed." The President, however, agreed to tolerate the
minister till after the contemplated visit of the grand duke. The
communication also stated, "That minister will then be dismissed if not
recalled."[228]
(_d_) =The ceremonial of departure= is similar to that of reception. (1)
The diplomat seeks an interview according to the method outlined in the
ceremonial of reception, in order to present his letter of recall. (2)
In case of remoteness from the seat of government the agent may, if
necessary, take leave of the sovereign by letter, forwarding to the
sovereign his letter of recall. (3) It very often happens that a
diplomatic agent presents his successor at the time of his own
departure. (4) In case of change of title the diplomat follows the
ceremonial of departure in one capacity with that of arrival in his new
capacity. (5) It is understood that the agent, after the formal close of
his mission, will depart with convenient speed, and until the expiration
of such period he enjoys diplomatic immunities.
§ 78. Immunities and Privileges
Few subjects involved in international relations have been more
extensively discussed than the privileges and immunities of diplomatic
agents. Many of the earliest treatises on international affairs were
devoted to such questions. In order that any business between states
might be carried on, some principles upon which the diplomatic agent
could base his action were necessary. The treatment of the agent could
not be left to chance or to the feeling of the authorities of the
receiving state. Gradually fixed usages were recognized. These
immunities and privileges may be considered under two divisions:
personal inviolability, and exemption from local jurisdiction, otherwise
known as exterritoriality.
(_a_) =Inviolability.= The person of the agent was by ancient law
inviolable. According to the dictum of the Roman Law, _sancti habentur
legati_. In accord with this principle the physical and moral person is
inviolable. Any offense toward the person of the ambassador is in effect
an offense to the state which he represents, and to the law of nations.
The receiving state is bound to extend to the diplomatic agent such
protection as will preserve his inviolability. This may make necessary
the use of force to preserve to the diplomatic agent his privileges. The
idea of inviolability, as Calvo says, is absolute and unlimited, and
based, not on simple convenience, but upon necessity. Without it
diplomatic agents could not perform their functions, for they would be
dependent upon the sovereign to whom they might be accredited.[229] In
many states laws have been enacted during the last half of the
nineteenth century fixing severe penalties for acts which affect the
diplomatic agent unfavorably in the performance of his functions, or
reflect upon his dignity.[230]
The privilege of inviolability extends, (1) alike to agents of all
classes, (2) to the suite, official and non-official, (3) to such things
as are convenient for the performance of his functions, (4) during the
entire time of his official sojourn, _i.e._ from the time of the making
known of his official character to the expiration of a reasonable time
for departure after the completion of his mission. This also holds even
when the mission is terminated by the outbreak of war between the state
from which the agent comes and the state to which he is accredited. (5)
By courtesy the diplomatic agent is usually accorded similar privileges
when passing through a third state in going to or returning from his
post.
A diplomatic agent may place himself under the law, says Despagnet, so
far as attacks upon him are concerned: (1) when he voluntarily exposes
himself to danger, in a riot, duel, civil war; (2) when in his private
capacity he does that which is liable to criticism, _e.g._ as a writer
or artist, provided the criticism should not degenerate into an attack
upon his public character; (3) when the attacks upon him are in
legitimate personal self-defense; (4) when, by his actions, he provokes
on the part of the local government precautionary measures against
himself, _e.g._ if he should plot against the surety of the state to
which he is accredited.[231] Only in the case of extreme necessity,
however, should any force be used. It is better to ask for the recall of
the agent. In case of refusal or in case of urgent necessity the agent
may be expelled.
(_b_) =Exemption from local jurisdiction= of the state to which a
diplomatic agent is sent, or exterritoriality in a limited sense, flows
naturally from the admitted right of inviolability. The term
"exterritoriality" is a convenient one for describing the condition of
immunity which diplomatic agents enjoy in a foreign state, but it should
be observed that the custom of conceding these immunities has given rise
to the "legal fiction of exterritoriality," rather than that these
immunities are based on a right of exterritoriality. The practice of
granting immunities was common long before the idea of exterritoriality
arose.[232] The exemptions give to diplomatic agents large privileges.
(1) The diplomatic agent is exempt from the _criminal jurisdiction_ of
the state to which he is accredited. In case of violation of law the
receiving state has to decide whether the offense is serious enough to
warrant a demand for the recall of the agent, or whether it should be
passed without notice. In extreme cases a state might order the agent to
leave the country, or in case of immediate danger might place the agent
under reasonable restraint. Hall considers these "as acts done in
pursuance of a right of exercising jurisdiction upon sufficient
emergency, which has not been abandoned in conceding immunities to
diplomatic agents."[233]
(2) The diplomatic agent is exempt from _civil jurisdiction_ of the
state to which he is sent, and cannot be sued, arrested, or punished by
the law of that state.[234] This rule is sometimes held to apply only to
such proceedings as would affect the diplomat in his official character;
but unless the diplomat voluntarily assume another character, he cannot
be so proceeded against. If he become a partner in a firm, engage in
business, buy stocks, or assume financial responsibilities, it is held
in theory by some authorities that the diplomatic agent may be proceeded
against in that capacity. The diplomatic agent of the United States is
distinctly instructed that "real or personal property, aside from that
which pertains to him as a minister, ... is subject to the local
laws."[235] The practice is, however, to extend to the diplomat in his
personal capacity the fullest possible immunity, and in case of need to
resort to his home courts, or to diplomatic methods by appeal to the
home government, for the adjustment of any difficulties that may involve
its representative in foreign court proceedings. The real property of
the diplomatic agent is, of course, liable to local police and sanitary
regulations. In cases where a diplomatic agent consents to submit
himself to foreign jurisdiction, the procedure and the judgment, if
against him, cannot involve him in such manner as to seriously interfere
with the performance of his functions. He cannot be compelled to appear
as witness in a case of which he has knowledge; however, it is customary
in the interests of justice for the diplomatic agent to make a
deposition before the secretary of the legation or some proper officer.
By the Constitution of the United States, in criminal prosecutions the
accused has a right to have the evidence taken orally in his presence.
The refusal to give oral testimony of M. Dubois, the Dutch minister to
the United States in 1856, resulted in his recall.[236] The Venezuelan
minister, however, testified in open court as a courtesy to the United
States government in the trial of the assassin of President
Garfield.[237] The United States at the present time maintains that "a
diplomatic representative cannot be compelled to testify, in the country
of his sojourn, before any tribunal whatsoever." This may be considered
the generally accepted principle, though the interests of general
justice and international courtesy frequently lead to voluntary waiving
of the rule with the consent of the accrediting state.
(3) _The official and non-official family_ enjoy the immunities of their
chief as necessary for the convenient performance of his mission.
Questions in regard to the immunities of the non-official suite have
sometimes arisen. To avoid this it is customary for the diplomat to
furnish the receiving state with a list of his family. Great Britain
does not admit the full immunity of domestic servants. When Mr. Gallatin
was United States minister to Great Britain, his coachman, who had
committed an assault beyond the _hôtel_ of the minister, was held liable
to the local jurisdiction. As a diplomatic agent can voluntarily turn
over an offender to the local authorities, and as he would naturally
desire the observance of local law, there would be little danger of
friction with local authorities anywhere, provided a just cause could be
shown.
Couriers and bearers of dispatches are entitled to immunities so far as
is necessary for the free performance of the specific function.
(4) _The house and all grounds and buildings_ within the limits of the
diplomatic residence are regarded as exempt from local jurisdiction.
Great Britain claimed the right of entry to arrest Mr. Gallatin's
coachman above mentioned, though admitting that such entrance should be
made at a time to suit the convenience of the minister if he did not
care to hand him over directly. This immunity extends also to carriages
and other necessary appurtenances of the mission.
Children born to the official family in the house of the diplomatic
agent are considered as born in the state by which the agent is
accredited.
(5) _The right of asylum_ in the house of the ambassador is now
generally denied. In 1726 the celebrated case of the Duke of Ripperda,
charged with treason, gave rise to the decision by the Council of
Castile that the duke could be taken from the English legation by force
if necessary, because the legation, which had been established to
promote good relations between the states, would otherwise be used for
overthrowing the state in which it had been established.[238] It may be
regarded as a rule that, in Europe and in the United States, the house
of a diplomatic agent affords only temporary protection for a criminal,
whether political or otherwise, and that on demand of the proper
authority the criminal must be surrendered. Refusal is a just ground for
demand for recall of the diplomatic agent. The United States instructs
its agents that "The privilege of immunity from local jurisdiction does
not embrace the right of asylum for persons outside of a
representative's diplomatic or personal household."[239] This right is,
however, recognized in practice, both by the United States and European
nations, so far as pertains to the houses of the diplomats in South
American states. The United States, in 1870, tried without avail to
induce the European nations to agree to the discontinuance of the
practice. In 1891, in Chile, Minister Egan, of the United States,
afforded refuge in the legation to a large number of the political
followers of Balmaceda. Chile demanded his recall, but the United States
maintained that there must be sufficient grounds for such action. In
Eastern countries it has been the practice to afford asylum in legations
in times of political disturbance and to political offenders. In 1895
the British ambassador at Constantinople gave asylum to the deposed
grand vizier at Constantinople. It can be said, however, that the
tendency is to limit the granting of asylum to the fullest possible
extent,[240] and finally to abolish the practice altogether, as has been
the case with the ancient extension of this privilege to the
neighborhood of the legation under the name of _jus quarteriorum_.[241]
(6) In general, the diplomatic agent is _exempt from personal taxes_ and
from taxes upon his personal goods. The property owned by and devoted to
the use of the mission is usually exempt from taxation. In this respect
the principle of reciprocity is followed among some states. The taxes
for betterments, such as paving, sewerage, etc., are regarded as proper
charges upon the mission. A state has a right to make such regulations
as it deems necessary to prevent the abuse of this immunity from
taxation. It is also customary for a third state to grant to a diplomat
passing through its territory immunity from duties. Diplomatic agents
are also exempt from income, military, window, and similar taxes.
(7) It is hardly necessary now to mention the fact that the diplomatic
agent is entitled to _freedom of religious worship_ within the mission,
provided there be no attempt by bell, symbol, or otherwise to attract
the attention of the passer-by to the observance. This privilege was
formerly of importance, but now is never questioned.
§ 79. Diplomatic Practice of the United States
Some of the minor points of procedure and functions may be seen by the
study of the customs and rules of any large state, as in the United
States.
(_a_) Official communications involving international relations and
general international negotiations are within the exclusive province of
the Department of State, at the head of which stands the Secretary of
State. In other states this department is commonly called the Department
of Foreign Affairs, and its chief is the Minister or Secretary for
Foreign Affairs, and was so designated in the United States from 1781 to
1789. The Department of State of the United States, however, performs
many functions not strictly within a Department of Foreign Affairs, as
an enumeration of the Bureaus will show.
(1) Bureau of Appointments.
(2) Diplomatic Bureau.
(3) Consular Bureau.
(4) Bureau of Indexes and Archives.
(5) Bureau of Accounts.
(6) Bureau of Rolls and Library, which, besides other duties, has charge
of the publication of the laws, treaties, proclamations, and executive
orders.
(7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of
Statistics).
(_b_) The Constitution provides that, "In all cases affecting
ambassadors, other public ministers, and consuls," the Supreme Court has
original jurisdiction.[242]
(_c_) A diplomatic agent cannot, without consent of Congress, "accept of
any present, emolument, office, or title of any kind whatever from any
king, prince, or foreign state."[243] This provision does not, however,
prevent the rendering of a friendly service to a foreign power, and it
may be proper for him, having first obtained permission from the
Department of State, to accede to the request to discharge temporarily
the duties of a diplomatic agent of any other state.[244]
(_d_) In case of revolution a diplomatic agent may extend protection to
the subjects of other friendly powers left for the time without a
representative.[245] In neither this nor in the preceding case does the
United States become responsible for the acts of its diplomatic
representative in so far as he is acting as agent of the other state or
states.
(_e_) "It is forbidden to diplomatic officers to participate in any
manner in the political concerns of the country of their residence; and
they are directed especially to refrain from public expressions of
opinion upon local political or other questions arising within their
jurisdiction. It is deemed advisable to extend similar prohibition
against public addresses, unless upon exceptional festal occasions, in
the country of official residence. Even upon such occasions any
reference to political issues, pending in the United States or
elsewhere, should be carefully avoided."[246] A diplomatic agent is
forbidden to recommend any person for office under the government to
which he is accredited.[247] The diplomatic agent should not become the
agent to prosecute private claims of citizens.[248] The diplomatic agent
should not retain any copy of the archives, nor allow the publication of
any official document, without authorization of the Department of State.
The Department in general disapproves of residence of the agent
elsewhere than at the capital of the receiving state.
(_f_) Joint action with the diplomatic agents of other powers at a
foreign court is deprecated, although conferences resulting in a common
understanding in cases of emergency are considered desirable.[249]
(_g_) It is permitted that the diplomatic agent of the United States
wear the uniform and bear the title of the rank attained in the
volunteer service of the Army of the United States during the
rebellion.[250] It is prohibited by a later statute to wear "any uniform
or official costume not previously authorized by Congress."[251] This
has been interpreted as applying to dress denoting rank, but not to the
prescribed court dress of certain capitals;[252] and "diplomatic
officers are permitted to wear upon occasions of ceremony the dress
which local usage prescribes as appropriate to the hour and place."[253]
(_h_) The United States has never been liberal in compensating
diplomatic agents for their services. In 1784 the salary of the highest
grade was fixed at nine thousand dollars, and it had only been doubled
at the end of the nineteenth century. Other states of equal dignity
provide far more liberally for their representatives.
The whole matter of diplomatic agents has been the subject of numerous
statutes.[254]
§ 80. Consuls
(_a_) =Historically= the office of consul preceded that of ambassador.
The merchants of different states had dealings with each other long
before the states, as such, entered into negotiations. The Egyptians,
apparently as early as the fourteenth century B.C., intrusted the trial
of certain maritime cases to a designated priest. The Mediterranean
merchants appealed to the _judicium mercatorium et maritimum_ in the
sixth century B.C. The Greek _proxenos_ performed some consular
functions. Rome later had similar public servants. The consular system,
however, did not develop during the long period of decay of the Roman
Empire. In the days of the Crusades, the merchants settled in the coast
cities of the Mediterranean. Quarters of the cities practically came
under the jurisdiction of the foreign occupants. The consuls, probably
at first chosen by the merchants, exercised this jurisdiction, under
which the law of the state of the origin of the merchants was regarded
as binding. Their functions were somewhat similar to those exercised in
some Eastern states at the present time. As soon as conditions became
more settled, the states gradually assumed control of these consular
offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and
the early Lex Rhodia show that many of the consular functions were
recognized in the Middle Ages, and the institution of consuls seems to
have been quite well established by the year 1200. The Hanseatic League
in the fourteenth century had magistrates in many cities entitled
_aldermen_, who were performing functions similar to those of the
consuls of the Mediterranean.[255] England began to send consuls in the
fifteenth century; the system rapidly spread, and the powers and
functions of consuls were wide. From this time, with the growth of the
practice of sending resident ambassadors, the extent of the consular
duties was gradually lessened. The diplomatic functions formerly in the
charge of the consuls were intrusted to the ambassadors, and other
functions of the consuls were reduced by making them the representatives
of the business interests of the subjects of the state in whose service
they were, rather than of the interests of the state as such.[256] From
the middle of the seventeenth century, when the responsibility of states
to each other became more fully recognized, and government became more
settled, the exterritorial jurisdiction of consuls was no longer
necessary. The growth of commerce among the nations has increased the
duties of the consul. The improved means of communication, telegraphic
and other, has relieved both consuls and ambassadors of the
responsibility of deciding, without advice from the home government,
many questions of serious nature.
(_b_) =The rank of consuls= is a matter of domestic law, and each state
may determine for its own officers the grade and honors attaching
thereto in the way of salutes, precedence among its domestic officials,
etc. There is no international agreement in regard to consuls similar to
that of 1815-1818 in regard to diplomatic agents.
The United States differentiates the consular service more fully than
most states, having the following: consuls-general, vice-consuls-general,
deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial
agents, vice-commercial agents, consular agents, consular clerks,
interpreters, marshals, and clerks.[257] The term "consular officer,"
however, includes only consuls-general, consuls, commercial agents,
deputy consuls, vice-consuls, vice-commercial agents, and consular
agents.[258] The full officers are consuls-general, consuls, and
commercial agents. The vice consular officers are "substitute consular
officers" and the deputy consuls-general, deputy consuls, and consular
agents are "subordinate consular officers."[259]
Consuls-general ordinarily have a supervisory jurisdiction of the
consuls within the neighborhood of their consulate, though sometimes
they have no supervisory jurisdiction. This is often exercised by the
diplomatic agent accredited to the same state.
Most states have consuls-general, consuls, vice-consuls, consular
agents, sometimes also consular students.
(_c_) =The nomination of consuls= is an attribute of a sovereign state.
They may be chosen either from among its own citizens or from those of
the foreign state. Consuls chosen from the citizens of the state to
which they are accredited exercise only in part the full consular
functions, the limit of the functions being determined by the laws of
the accrediting state and by the laws of the receiving state. Some
states refuse to receive their own citizens as consuls; others do not
accredit foreigners as consuls.
The commission or patent by which a consul-general or consul is always
appointed is transmitted to the diplomatic representative of the
appointing state in the state to which the consul is sent, with the
request that he apply to the proper authority for an _exequatur_, by
which the consul is officially recognized and guaranteed such
prerogatives and immunities as are attached to his office. The
vice-consul is usually appointed by patent, though he may be nominated
by his superior, and is recognized by granting of an _exequatur_. The
_exequatur_ may be revoked for serious cause, though the more usual way
is to ask the recall of a consul who is not satisfactory to a state. The
_exequatur_ may be refused for cause. It is usually issued by the head
of the state. If the form of government in the receiving state or in the
accrediting state changes, it is customary to request a new _exequatur_.
+Note.+ The consular agents, while appointed and confirmed as are the
higher consular officers, do not in the practice of the United States
receive an _exequatur_.
(FORM OF)
FULL PRESIDENTIAL EXEQUATUR
.................................................
_President of the United States of America._
_To all to whom it may concern_:
Satisfactory evidence having been exhibited to me
that...............................................................
has been appointed.................................................
I do hereby recognize him as such, and declare him free to exercise
and enjoy such functions, powers, and privileges as are allowed to
....................................................
In Testimony whereof, I have caused these Letters
to be made Patent, and the Seal of the United States
[SEAL to be hereunto affixed.
OF THE Given under my hand at the City of Washington
UNITED the..............day of.............., A.D. 19....,
STATES] and of the Independence of the United States of
America, the............
By the President, ...........................
............................
_Secretary of State._
(_d_) =Functions.= The consul, as the officer representing particularly
the commercial and business interests of the state from which he comes,
and in a minor degree the other individual interests, has a great
variety of functions. His functions are in general such as affect only
indirectly the state in which he resides. He is not, like the diplomatic
agent, directly concerned with affairs of state; he has no
representative character, though in effect he is often the local
representative of the diplomatic agent accredited to the state.
The functions of a consul are largely matters determined by custom,
treaty stipulation, and by special provisions of his _exequatur_.
Within these limits domestic law of the accrediting state determines the
consul's functions. (1) In general the consul has many duties in
connection with the _commercial interests_ of the subjects of the state
which he serves. These duties extend both to maritime and land commerce.
The consul is to care that the provisions of commercial treaties are
observed, that proper invoices of goods are submitted, and that shipment
is in accord with the regulations of the state which he serves. He is to
furnish such reports in regard to commercial and economic conditions as
are required. These reports often involve many subjects only indirectly
related to trade and commerce. (2) The consul has many duties relating
to the _maritime service_ of the state which accredits him. This usually
includes such supervision of merchant vessels as the domestic law of his
state may grant to him, together with that accorded by custom. His
office is a place of deposit of a ship's papers while the ship remains
in port. When necessary he may supervise the shipment, wages, relief,
transportation, and discharge of seamen, the reclaiming of deserters,
the care of the effects of deceased seamen, in some states the
adjudication of disputes between masters, officers, and crews, and if
necessary he may intervene in cases of mutiny or insubordination. In
case of wrecked vessels the consul is usually left considerable latitude
in his action. The consul may also authenticate the bill of sale of a
foreign vessel to the subject of the state which accredits him. This
authentication entitles the vessel to the protection of the consul's
state. The consul may also be intrusted with other duties by treaties
and custom of given states. (3) The consul _represents_ the _interests
of the citizens_ of the state in whose service he is, in matters of
authentication of acts under seal, in administration of the property of
citizens within his district, in taking charge of effects of deceased
citizens, in arbitration of disputes voluntarily submitted to him, visé
of passports, and minor services. (4) The consul _furnishes_ to the
state which he represents _information_ upon a great variety of subjects
particularly relating to commercial, economic, and political affairs,
the conditions of navigation, and general hydrographic information.
Besides this he is expected to keep his state informed of the events of
interest transpiring within his district.
As Hall says: "In the performance of these and similar duties the action
of a consul is evidently not international. He is an officer of his
state to whom are entrusted special functions which can be carried out
in a foreign country without interfering with its jurisdiction. His
international action does not extend beyond the unofficial employment of
such influence as he may possess, through the fact of his being an
official and through his personal character, to assist compatriots who
may be in need of his help with the authorities of the country. If he
considers it necessary that formal representations shall be made to its
government as to treatment experienced by them or other matters
concerning them, the step ought in strictness to be taken through the
resident diplomatic agent of his state,--he not having himself a
recognized right to make such communications."[260] In late years there
has been in the consular conventions between different states a
tendency to extend to consuls the right of complaint to the local
authorities in case "of any infraction of the treaties or conventions
existing between the states," and "if the complaint should not be
satisfactorily redressed, the consular officer, in the absence of the
diplomatic agent of his country, may apply directly to the government of
the country where he resides."[261]
(_e_) In some of the =Eastern and non-Christian states= consuls have
special powers and functions in addition to the ordinary powers and
functions. The extent of the powers varies, and is usually determined by
treaty. With the advance of civilization these special functions are
withdrawn, as by the Treaty of the United States with Japan, Nov. 22,
1894,[262] the jurisdiction of the consular courts of the United States
in Japan came to an end July 17, 1899.
In general, in Mohammedan and non-Christian states, treaty stipulations
secure to the consuls of Western states the right of exercising
extensive criminal and civil jurisdiction in cases involving citizens of
their own and the Eastern states, or in cases involving citizens of
their own and other Western states.[263] In some of the Eastern states
the consuls have exclusive jurisdiction over all cases to which citizens
of their states are parties;[264] in others the cases involving
citizens of the Eastern and Western states are tried in the court of the
defendant in the presence of the "authorized official of the plaintiff's
nationality," who may enter protest if the proceedings are not in accord
with justice,[265] while in certain states or for certain cases mixed
courts are constituted. Certain Western states in their domestic laws
make provisions for appeal from the decision of the consular court to
specified authorities as to the diplomatic agent or to some domestic
tribunal.
This jurisdiction is exceptional, furnishes no precedents for
international law, tends to become more restricted, and will doubtless
gradually disappear.[266]
(_f_) The =privileges and immunities= vary according to the states and
from the fact that a consul may be, (1) a citizen of the state in which
he exercises his consular functions, (2) a domiciled alien, (3) an alien
engaged in business or some other occupation in the state where he
exercises his functions, or (4) a citizen of the accrediting state
engaged exclusively upon consular business.[267] It is, however,
necessary that the state which grants an _exequatur_ to, or receives as
consul a person from one of the first three classes, grant to such
person a measure of privilege and immunity consistent with the free
performance of his consular duties.
Each consul has the privilege of placing above the door of his house the
arms of the state which he serves, generally also of flying its flag.
The archives and official property are inviolable.
In the case of a consul not a citizen of the receiving state and engaged
exclusively in consular business, exemption from arrest except on a
criminal charge, when he may be punished by local laws or sent home for
trial; exemption from witness duty, though testimony may be taken in
writing; exemption from taxation; exemption from military charges and
service,--is usually conceded by custom and often by treaty. It is not,
however, conceded that the consular residence may be used as an asylum.
The consul of the third class, who, though an alien to the receiving
state, engages in business other than consular duties, is subject to all
local laws governing similarly circumstanced foreigners, except when in
the performance of his functions. His consular effects must be kept
distinct from those appertaining to his business capacity, which last
are under local law.
The domiciled alien exercising consular functions is subject to local
law as others similarly circumstanced, which, in some states, may
involve considerable obligations. The freedom from local restrictions
sufficient for the convenient performance of his consular duties is
implied in the grant of the _exequatur_.
The reception of a citizen as a consular representative of a foreign
state does not confer upon him the personal privileges and immunities of
any of the other classes, but only the immunities attaching to the
office itself, and absolutely necessary for the performance of its
duties, as the right to use the arms above the office door, the
inviolability of archives, and respect for his authority while in the
performance of his functions.
In some of the Eastern states and in some of the non-Christian and
semicivilized states consuls are entirely exempt from local
jurisdiction, enjoying exemptions similar to those of diplomatic agents.
In time of war the house of the consul is, when flying the flag of the
state which he serves, specially protected, and liable to injury only in
case of urgent military necessity. Consuls do not necessarily withdraw
because of hostilities with the accrediting state.[268]
In general, the consul, by virtue of his public office, is entitled to
more respect than a simple citizen, or, as Heffter puts it, "consuls are
entitled to that measure of inviolability which will enable them to
exercise their consular functions without personal inconvenience."[269]
(_g_) =The consular office may be vacated= by a given occupant, (1) by
death, (2) by recall, (3) by expiration of his term of service, (4) by
revocation of his _exequatur_. This last cause is the only one needing
attention. The _exequatur_ may be revoked by the state issuing it, if
the conduct of the holder be displeasing to the state. The state issuing
the _exequatur_ is sole judge. This does not necessarily imply any
discourtesy to the accrediting state, as the consul does not represent
the sovereignty of the state. It is customary, however, to give the
accrediting state an opportunity to recall its consul. _Exequaturs_
have, on several occasions, been withdrawn from consuls who have
directly or indirectly aided the enemies of the receiving state, or have
given offense by their participation in the public affairs of the
receiving state. Consequently consuls are usually officially advised to
refrain so far as possible from expressions of their opinions upon
public affairs, either of the receiving or sending state.