435. Reciprocity in foreign judgments.

§ 436. Foreign judgments in personam.

§ 437. Principle as declared by supreme court of the United States. § 438. International law founded upon mutuality.

§ 439.

Dissenting views.

$440. Subject continued-Impeachment for fraud.

§ 441. In the absence of fraud the merits cannot be inquired into.

$445. Contract to influence corruptly officer of foreign government. Consul cannot assume position antagonistic to his government. Jurisdiction of consuls by treaties.

§ 446.

§ 447.

§ 394.

General comments.-It is not within the scope of this work to enter into a detailed examination of the rights and duties of ambassadors and consuls, but as the rights of these officers depend not only on the principles of international law, but also, frequently, on the provisions of treaties, a brief notice may not be inappropriate. It may be observed in passing that a foreign minister has the right to remonstrate with the executive to whom he is accredited upon any measure affecting his country. "But it will ever be denied as a right of a foreign minister that he should endeavor, by an address to the people, oral or written, to forestall a depending measure, or to defeat one which has been decided." No communication can be received by the Department of State from the subjects of another country, except through the minister of that country.2

§ 395. Courts bound by recognition of President.-The courts are bound by the recognition given by the President to a foreign

1 Mr. Randolph, Secretary of State, to M. Fauchet, French Minister, June 13, 1795, 8 MS. Dom. Let. 262.

2 Mr. Monroe, Secretary of State, to Admiral Cochrane, April 5, 1815, MS. Notes to For. Legs., II, 80.

minister, and they cannot inquire whether a person who is recognized by the government as the minister of a foreign power was duly appointed or not. A certificate issued by the Secretary of State, under his seal of office, stating that a person has been recognized as a foreign minister by the Department of State, constitutes full evidence of the fact of his authorization and reception as such by the President of the United States. It is deemed inadvisable for a diplomatic agent over his own signature to appeal to the press. The Department of State should be addressed if a foreign legation has any cause of complaint against the government or any person in its service.5

6

§ 396. Proof by parol evidence. It is competent to prove by parol evidence the period during which a person was considered by the United States as a foreign minister. The origin and support of the privileges of foreign ministers have their support in the law of nations.?

§ 397. Appointment of ambassadors and consuls.-By the Constitution of the United States the President is vested with the power of nominating, and by and with the consent of the Senate of appointing, ambassadors, other public ministers and consuls. The Constitution also provides that "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. Under this clause Congress can confer power upon the President to appoint a vice-consul.10 The word "consul," as used in the Constitution, does not include a subordinate and temporary officer like that of vice-consul. "Because the subordinate officer is charged with the performance of

3 United States v. Ortega, Fed. Cas. No. 15,971, 4 Wash. C. C. 531; Torlade d'Azambuja v. Pereira, 1 Miles, 366.

United States v. Benner, Fed. Cas. No. 14,568, Baldw. 234.

Mr. Fish, Secretary of State, to Mr. Garcia, Argentine Minister, November 5, 1869, MS. Notes to Argentine Leg., VI, 78.

• United States v. Liddle, Fed. Cas. No. 15,598, 2 Wash. C. C. 205. ' Holbrook v. Henderson, 6 N. Y. Super. Ct. (4 Sand. 619.)

8

Const., art. II, sec. 2. 'Const., art. II, sec. 2.

10 United States v. Eaton, 169 U. S. 331, 18 Sup. Ct. Rep. 374, 42 L. ed. 767.

423 CITIZEN APPOINTED DIPLOMATIC REPRESENTATIVE.

[§§ 398, 399

the duty of the superior for a limited time, and under special and temporary conditions he is not thereby transferred into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform, under any circumstances or exigency, the duties of a superior officer, and the discharge of administrative duties would be seriously hindered." 11 $398.

Citizen appointed diplomatic representive. The supreme court of the United States quotes with approval this language of Mr. Secretary Evarts: "This government objects to receiving a citizen of the United States as the diplomatic representative of a foreign power. Such citizens, however, are frequently recognized as consular officers of other nations, and this policy is not known to have hitherto occasioned any inconvenience." And again: "The usage of diplomatic intercourse between nations is averse to the acceptance, in the representative capacity, of a person who, while native-born in the country which sends him, has yet acquired lawful status as a citizen by naturalization of the country to which he was sent.'' 12 The court also approved the language of Mr. Secretary Bayard 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 privileges 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." 13 But there is no presumption of the alienage of the defendant from the mere fact that he is the consul in the United States of a foreign government.14

§ 399. Privileges of ambassadors and ministers.-Ambassadors and ministers represent their sovereign and are exempt from the jurisdiction of both civil and criminal laws.15 But they will

"Mr. Justice White, in United States v. Eaton, supra.

"Ex parte Baiz, 135 U. S. 403, 10 Sup. Ct. Rep. 854, 34 L. ed. 222.

Ex parte Baiz, supra.

14 Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. Rep. 407, 28 L. ed. 419.

15 The Schooner Exchange v. McFaddon, 7 Cranch (U. S.), 116, 3 L. ed. 287; State v. De La Foret, 2 Nott & McC. 217; 1 Kent's Commentaries, 15.

not be exempt from the operation of a mechanic's lien law as to any structure not used for purposes relating to their representative character. 16 A servant of a foreign minister is entitled to like protection.17 Courts of law are obliged to accept the declaration of a foreign minister when his character as such has been established, as conclusive proof of his authority to maintain a suit on behalf of his government. A copy of his instructions cannot rightfully be demanded either by the courts or the government to which he is accredited.18

§ 400. Resignation as bar to certiorari.-If an application is made to the supreme court of the United States for a writ of certiorari to direct an inferior court to certify an indictment on the ground that the accused was at the time of the filing of the indictment the political agent of a foreign government, the application will be denied when it appears that before the filing of the indictment he was requested by his government to resign and did resign, and nothing is shown by the records of the Department of State as to his relations to the United States except a denial to him of the privilege of a free entry of goods imported for his use.19

§ 401. Rights and privileges of consuls.-A consul is merely a commercial agent. He is not entitled to demand the privileges. and immunities that are attached to the person of a minister or ambassador.20 A consul is not a judicial officer, and a passport executed by an American consul residing in a foreign country allowing a person to return from that country to the United States is not evidence that he has been in such foreign country.21 He,

16 Byrne v. Herran, 1 Daly (N. Y.), 344.

17 Lockwood v. Coysgarne, 3 Burr. 1676; Novello v. Toogood, 1 Barn. & C. 562; Macartney v. Garbutt, 24 Q. B. D. 368.

18 Mexico v. De Arangoiz, 5 Duer (N. Y.), 643.

19 In re Heitz, 111 U. S. 766, 4 Sup. Ct. Rep. 698, 28 L. ed. 592. If a public minister commences an assault he cannot claim his privilege

like other foreign residents that owe a temporary allegiance to the state, is subject to the local laws both in civil and criminal cases.22 "The general principle is that a foreign consular officer is subject to no charge in the country of residence, by reason of his official capacity or acts; but that if such officer contracts private interests there, such as engaging in business, acquiring taxable property and the like, he is subject to the same rules as a private individual." 23

§ 402. Contract made in official capacity.-But a consul-general is not personally liable, if he makes a contract in his official' capacity for the benefit of his government.24 "The character of consul does not give any protection to that of merchant, when they are united in the same person. 125 In all that concerns his trade, a trading consul is liable to ordinary process the same as a native merchant.26 "Consuls are not public ministers. Whatever protection they may be entitled to in the discharge of their official duties, and whatever special privileges may be conferred upon them by the local laws and usages, or by international compact, they are not entitled by the general law of nations to the peculiar immunities of ambassadors.

127

§ 403. Consular regulations of United States. In the Consular Regulations of the United States it is stated: "Although consuls have no right to claim the privileges and immunities of diplomatic representatives, they are under the special protection of international law, and are regarded as the officers both of the state which appoints and the state which receives them. The extent of their authority is derived from their commissions and their exequaturs. It is believed that the granting of the latter instrument, without express restrictions, confers upon a consul

22

Coppell v. Hall, 7 Wall. (U. S.) 553, 19 L. ed. 244; Wilcox v. Luco, 118 Cal. 639, 62 Am. St. Rep. 305, 45 L. R. A. 579, 50 Pac. 758, 45 Pac. 676; 1 Kent's Commentaries, 44; In re Iasigi, 79 Fed. 751; Gittings v. Crawford, Taney's Dec. (U. S.) 11, Fed. Cas. No. 5465.

Mr. Frelinghuysen, Secretary of State, to Mr. de Struve, Russian

Minister, April 21, 1884, MS. Notes to Russia, VII, 449.

"Jones v. Le Tombe, 3 Dall. 384, 1 L. ed. 647.

25 Coppell v. Hall, 7 Wall. (U. S.) 553, 19 L. ed. 246.

Scott v. Hobe, 108 Wis. 239, 84 N. W. 181.

27 Wheaton's Int. Law, Dana's ed., sec. 249.