their crews have been conferred upon consuls.90* The treaty may provide that the consul shall have exclusive jurisdiction; 91 it would seem that to confer this jurisdiction a special provision in a treaty is necessary."

92

§ 448. Liability for false imprisonment.-A constable will be liable in an action for false imprisonment if, proceeding under a process issued from a state court in a controversy over which a consul by the provisions of a treaty has exclusive jurisdiction, he arrests the captain of a vessel, and if he at the time at which he made the arrest was fully informed of the provisions of the treaty.93 But a consular compact will not prevent a federal court from assuming jurisdiction where the master of a vessel is guilty of a barbarous and malicious assault on a seaman.94 But where the consul has, by a treaty, exclusive jurisdiction, his decision is not subject to review by the courts.95

§ 449. Authority of consul in enemy's country.-A consul of the United States has, by virtue of his official position, no power to grant any license or permit to exempt a vessel of the enemy from capture and confiscation.96 "To exempt the property of enemies from the effect of hostilities," says Sir William Scott, "is a very high act of sovereign authority; if at any time delegated to persons in a subordinate situation, it must be exercised either by those who have a special commission granted to them for the particular business, and who in legal language are termed mandatories, or by persons in whom such a power is vested in any official situation to which it may be considered incidental. It is

90 See Norberg v. Hillbren, 5 N. Y. Leg. Obs. 177, 7 Am. Law Rev. 418; The Elwine Kreplin, 9 Blatchf. 438, Fed. Cas. No. 4,426; Tellefsen v. Fee, 168 Mass. 188, 60 Am. St. Rep. 379, 46 N. E. 562, 45 L. R. A. 481; The Marie, 49 Fed. 286; The Wellhaven, 55 Fed. 80; In re Wildenhaus, 28 Fed. 924.

"The Burchard, 42 Fed. 608.

Tellefsen v. Fee, 168 Mass. 189, 60 Am. St. Rep. 379, 46 N. E. 562, 45 L. R. A. 481.

"The Salomoni, 29 Fed. 534. See, aiso, Enos v. Sowle, 2 Hawaiian, 332.

5 The Elwine Kreplin, 9 Blatchf. 438, Fed. Cas. No. 4,426.

The Benito Estenger, 176 U. S. 568, 20 Sup. Ct. Rep. 489, 44 L. ed. 592.

quite clear that no consul in any country, particularly in an enemy's country, is vested with any such power in virtue of his station."' 97

§ 450. Power of foreign consul to commence suit in rem.— While a foreign consul has a right to claim the property or to commence a proceeding in rem, where the rights of property of his fellow-citizens are involved, without a special procuration from those persons in whose behalf he is moving, yet he is not entitled to receive restitution of the property in question without producing special authority from the particular persons who are entitled to it.98 "To watch over the rights and interests of their subjects, wherever the pursuits of commerce may draw them or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed 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 impossible that any evil or inconvenience can flow from it." 99

§ 451. Intervention of consul.--A foreign consul can petition the court to have paid into the treasury the proceeds of property libeled.100 While a consul is not entitled to represent his sovereign in a country where the sovereign has an ambassador, he is entitled to intervene in behalf of all subjects of that power that are interested.10 101 When a consul is allowed to intervene, he is not attempting to negotiate with a foreign state nor to vindicate any prerogative of government, but he simply is the representative of his government as having an interest in property proceeded against.

The Hope, 1 Dod. 226, quoted in Rogers v. The Amado, Newb. 400, 20 Fed. Cas. No. 12,005.

The Bello Corrunes, 6 Wheat. 152, 5 L. ed. 229.

Mr. Justice Johnson in The Bello Corrunes, 6 Wheat. 152, 5 L. ed. 229. See, also, The Elizabeth, Blatehf. Pr. 253, Fed. Cas. No. 4350.

100 The Ship Adolph, 1 Curt. 89, Fed. Cas. No. 86. See, also, The Conserva, 38 Fed. 434.

101 Robson v. The Huntress, 2 Wall. Jr. 59, Fed. Cas. No. 11,971. See, also, The Bello Corrunes, 6 Wheat. 166, 5 L. ed. 229.

§ 452. Administration of estates. The functions of a consul in the administration of the estates of the subjects of the nation. by which he is appointed, and who dies within his jurisdiction or consulate, are often regulated by treaty. It is said in the consular regulations: "In Austria-Hungary, Belgium, Germany, Italy and Netherlands and colonies, the local authorities are requested to inform consuls of the death of their countrymen intestate or without known heirs. In Germany, Roumania, and Servia, consuls have the right to appear for absent heirs or creditors until regularly authorized representatives appear. In Muscat, Morocco, Persia, Peru, Salvador, Tripoli, and Tunis, they may administer on the property of their deceased countrymen. In Colombia they may do so except when legislation prevents it. In Costa Rica, Honduras, and Nicaragua, they may nominate curators to take charge of such property, so far as local laws permit. In Paraguay, they may become temporary custodians of such property. In Germany, they may take charge of the effects of deceased sailors.'' 102

We have considered on a former page the right of a consul, based on a treaty stipulation, to administer upon the estate of a deceased subject of the sovereign appointing him in preference to a public administrator or other officer authorized by the law of a state.1

103

§ 453. Shipping and seamen.-Various treaties between the United States and other nations contain provisions as to the duties and powers of consuls relative to shipping and seamen. The eighth article of the treaty with France provides: "The respective consuls-general, consuls, vice-consuls, or consular agents shall have exclusive charge of the internal order of the merchant vessel 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 confine. Those per103 See sec. 202, ante.

10 Consular Regulations of the United States (1896), sec. 91, p. 35.

sons shall be arrested at the sole request of the consuls, addressed in writing 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 mere request of the consuls, made in writing. The expenses of the arrest and detention of those persons shall be paid by the consuls. 104 As Congress has provided a mode of arrest in the execution of treaties,105 this must be regarded as the only means proper to be adopted for the purpose, and hence the officer named is the only one authorized to make the arrest on the requisition of a French consul. But an unauthorized arrest by a state official will not entitle a seaman to a discharge on habeas corpus, when brought before the court, because the irregularity of the arrest is cured by the court in examining into the case under the Revised Statutes providing for the execution of treaties relating to consular jurisdiction over the crews of foreign vessels in the waters of the United States.106

§ 454. Action of consul not conclusive.-Where a libel is filed for wages, the action of a consul in discharging a seaman in a foreign port is not conclusive.107 So, where an American consul had seamen arrested for desertion, for failure to appear for work at the proper hour, his mere certificate that the men had deserted, without any record of an examination before him, was held, in a suit for wages, not to be legal evidence of desertion. 108

§ 455. American seamen.-But these treaty provisions do not refer to American seamen. Thus, it is held that the treaty between the United States and Germany does not take away the jurisdiction of the admiralty courts of the United States to decide the rights of an American seaman entering and leaving the service of a German vessel in the United States.109

104 10 Stats. at Large, 992.

105 13 Stats. at Large, 121; Rev. Stats., secs. 4079-4081.

108 Dallemagne v. Moisan, 197 U. S. 169, 25 Sup. Ct. Rep. 422, 49 L. ed. 709; Rev. Stats., secs. 4079-4081, U. S. Comp. Stats. 1901, p. 2766.

107 Campbell V. Steamer Uncle Sam, McAll, 77, Fed. Cas. No. 2,372. 108 Graves v. The W. F. Babcock, 79 Fed. 92.

100 The Neck, 138 Fed. 144. See 17 Stats. at Large, 928.

§ 456. Fees for prosecution of claim.-The Revised Statutes of the United States prohibit a person holding a place of trust or profit under the government from acting as agent for the prosecution of a claim against the United States.110 If a person enters into a contract with another to assist him in the prosecution of the claims of a city against the government, and in a brief time subsequent to the execution of the contract becomes a minister of the United States to a foreign country, and holds this position during the prosecution of the claim, he cannot recover any fee for its prosecution.111 But while he cannot recover any

fee for his services, he can, upon payment of the claims, recover from his associate in the contract any attorney fees and costs advanced for his benefit.112

113

§ 457. Judicial notice of signature and seal. The court takes judicial notice of the seal and signature of consular officers." Hence, a copy of a corporation contract filed in England, which is certified by the assistant registrar of joint stock companies, and to which is attached the signature of a London notary stating that the signature is genuine, accompanied by the signature of the vice and deputy consul-general of the United States at London, under his seal of office, is properly certified.114

§ 458. Acknowledgments and affidavits by consular officers.By the Revised Statutes of the United States, power is conferred upon consular officers to perform any notarial act which a notary public is required or authorized by law to perform in the United States.115 Under the provisions of a code of a state declaring that affidavits and depositions may be made and taken outside of the state before any notary public or other person authorized to take depositions, it is held that a consular officer is a notary public, so that a deposition taken by him is admissible in evidence.116 An acknowledgment of a deed and mortgage can be

110 Rev. Stats., sec. 5498; Comp. Stats. 1901, p. 3707.

111 Fox v. Willis, 24 Ky. Law Rep. 1773, 72 S. W. 330; Id., 24 Ky. Law Rep. 2173, 73 S. W. 743.

112 Fox V. Willis, supra.

113 Barber v. International Co. of Mexico, 73 Conn. 587, 48 Atl. 758.

114 Barber v. International Co. of Mexico, 73 Conn. 587, 48 Atl. 758. 115 Rev. Stats., sec. 1750; U. S. Comp. Stats., p. 1196.

116 Browne v. Palmer, 66 Neb. 287, 92 N. W. 315.