ARTICLE IV.

PRIVILEGES AND POWERS UNDER THE LAW OF NATIONS.

71. Have not privileges and immunities of diplomatic representatives. In the early middle ages, and before the establishment of more or less permanent legations, consuls appear to have enjoyed the right of exterritoriality and the privileges and immunities now accorded to diplomatic representatives. In non-Christian and semicivilized countries these privileges have, to a large degree, been preserved to them, and they have the sanction of both treaty and usage. Upon the establishment of legations, however, the exemptions and immunities granted to consuls came to be regarded as a limitation of the territorial rights of the sovereign, and they have in the process of time been restricted to such as are necessarily incident to the consular office, or have been provided for by treaty, or are supported by long-established custom or the particular laws of the place. A consular officer in civilized countries now has, under public law, no acknowledged representative or diplomatic character as regards the country to which he is accredited. He has, however, a certain representative character as affecting the commercial interests of the country from which he receives his appointment; and there may be circumstances, as, for example, in the absence of a diplomatic representative, which, apart from usage, make it proper for him to address the local government upon subjects which relate to the duties and rights of his office, and which are usually dealt with through a legation.

72. Rights and privileges sanctioned by custom and local law. 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 all rights and privileges necessary to the performance of the duties of the consular office. Generally, a consul may claim for himself and his office not only such rights and privileges as have been conceded by treaty, but also such as have the sanction of custom and local laws, and have been enjoyed by his predecessors or by consuls of other nations, unless a formal notice has been given that they will not be extended to him.

73. General privileges and rights.-A consul may place the arms of his government over his doors. Permission to display the national flag is not a matter of right, though it is usually accorded, and it is often provided for by treaty. (Paragraph 70.) He may claim inviolability for the archives and official property of his office, and their exemption from seizure or examination. He is protected from the billeting of soldiers in the consular residence, and he may claim exemption from service on juries and in the militia and from other public duties. It is probable, however, that all these privileges could not be claimed for subordinate officers, especially for those who are citizens or subjects of the foreign state. The jurisdiction allowed to consuls in civilized countries over disputes between their countrymen is voluntary and in the nature of arbitration, and it relates more especially to matters of trade and commerce. A consul is, however, under public law, subject to the payment of taxes and municipal imposts and duties on his property in the country or on his trade, and generally to the civil and criminal jurisdiction of the country in which he resides. It is probable, if he does not engage in business and does not own real estate, that he would not be subject to arrest or incarceration, except on a criminal charge, and in the case of the commission of a crime

he may either be punished by the local laws or sent back to his own country. In the absence of a diplomatic representative, a consul doubtless has the right of access to the authorities of the state in all matters appertaining to his office.

74. Merchant consuls.--The privileges of a consul who engages in business in the country of his official residence are, under international law, more restricted, especially if he is a subject or citizen of the foreign state. If his exequatur has been granted without limitations, he may claim the privileges and exemptions that are necessary to the performance of the duties of his office; but in all that concerns his personal status or his status as a merchant it is doubtful whether he can claim any rights or privileges not conceded to other subjects or citizens of the state. He should, however, claim the same privileges and immunities that are granted to other merchant consuls in the same country.

75. Non-Christian countries. In non-Christian countries the rights of exterritoriality have been largely preserved, and have generally been confirmed by treaties to consular officers. To a great degree they enjoy the immunities of diplomatic representatives, together with certain prerogatives of jurisdiction (see Article XXX), the right of worship, and, to some extent, the right of asylum. These immunities extend to exemption from both the civil and criminal jurisdiction of the country to which they are sent, and protect their households and the effects covered by the consular residence. Their personal property is exempt from taxation, though it may be otherwise with real estate or movables not connected with the consulate. Generally, they are exempt from all personal impositions that arise from the character or quality of a subject or citizen of the country.

76. Precedence and ceremonial.-Consuls have no claim, under international law, to any foreign ceremonial, and no right of precedence except among themselves and in their relation to

the military and naval officers of their own country. This precedence, as to officers of the same grade in the consular body of the place, depends upon the date of the respective exequaturs.-1 Halleck, ch. 11, sec. 7. (Paragraphs 440-442.)

ARTICLE V.

PRIVILEGES AND Powers under TREATIES AND CON

VENTIONS.

77. The fundamental rights and privileges of consular officers depend upon the principles of international law and the custom and usage of nations. Certain rights and privileges are also specifically guaranteed to them by treaties. This article is intended simply as a summary of some of the more important rights and privileges secured to consular officers of the United States by treaties. The several consular treaties and conventions with other powers may be found in Appendix III, and in each case the consul must look there for more detailed information. The Department of State must necessarily trust to the discretion of the consul, on the one hand, not to permit his rights to be invaded without protest, and, on the other hand, not to claim what he can not maintain. If the rights thus secured by treaty are in any case invaded or violated, the consul will at once complain to the local authorities, to the Department, and to his immediate superior. These complaints should set forth in full all the facts showing the invasion or violation.

FAVORED-NATION CLAUSE.

78. Some of the consular treaties of the United States contain a clause, commonly called "the most-favored-nation clause." This right is secured by treaties with the Argentine Republic, Austria-Hungary, Belgium, Bolivia, Colombia, Costa Rica, the Dominican Republic, Denmark, Ecuador,

Egypt, France, Germany, Hawaiian Islands, Haiti, Honduras, Italy, Kongo Free State, Korea, Japan,1 Madagascar, Morocco, Netherlands (and colonies), Nicaragua, Orange Free State, Paraguay, Persia, Peru, Portugal, Prussia, Roumania, Russia, Salvador, Servia, Spain, Switzerland, and Tripoli. In those countries consuls of the United States are entitled to claim as full rights and privileges as have been granted to consuls of other nations.

INVIOLABILITY OF THE ARCHIVES AND PAPERS OF THE CONSULATE.

79. This is secured by treaties with Austria-Hungary, the Argentine Republic, Belgium, Bolivia, Colombia, Denmark, the Dominican Republic, Ecuador, France, Germany, Greece, Haiti, Kongo Free State, Maskat, Netherlands (and colonies), Orange Free State, Peru, Portugal, Roumania, Salvador, Servia, Sweden and Norway, and Switzerland.

INVIOLABILITY OF THE CONSULAR OFFICE AND DWELLING.

80. This is secured by treaties with Belgium, Bolivia, France, Germany (of consuls not citizens), Italy, Kongo Free State, Korea, Maskat, Morocco, Roumania, Salvador, and Servia; but the dwelling can not be used as an asylum. It is agreed with Colombia that the persons and dwellings of consuls are to be subject to the laws of the country, except as specially exempted by treaty. The consulates in Germany are not to be made asylums for the subjects of other powers.

EXEMPTION FROM ARREST.

81. By convention with Belgium, Germany, Italy, Kongo Free State, Netherlands, Roumania, and Servia, the consul is exempted from arrest, except for crimes. By treaty

1

Treaty of November 22, 1894, which goes into effect July 17, 1899.