Consular cases and opinions, from the decisions of the English and American courts and the opinions of attorneys general

Front matter

C°l W«f,S,K °P.!ni°ns. 'rom the dec

3 1924 017 553 573

Cornell University Library

Preface

This book aims to furnish a convenient collection of the British and American cases and opinions relating to consuls. A few important cases have been given in full. In general, however, only the opinion or an extract relating to consuls is given. In certain instances where the case appeared of little importance or was of great length, a brief summary enclosed in parenthesis has been made. All extracts are clearly indicated.

The Opinions of the Attorneys General relating to consular affairs have been added because of their judicial nature and the convenience of having them in one volume. Few students and lawyers have access to the twenty odd volumes which contain the opinions published since the office was established. Another reason for including these opinions or decisions of the head of the Department of Justice was to reproduce the very remarkable opinions of Caleb Cushing. He understood the real nature of the consular office and fifty years of study and experience have made it possible to add but little to what he wrote. If this collection can make his opinions and conceptions of the consular office more widely known and appreciated, it will be justification enough for the publication.

The indexes to the Kevised Statutes and Statutes at Large are taken from the Index Analysis of the Federal Statutes of Scott and Beaman and the Consolidated Index of Federal Statutes, so as to gather in a small compass what those ponderous volumes contain about consuls. The Consolidated Index has not been distributed and only a few copies are in existence.

Those who wish to make a study of any section of the statutes are referred to The Federal Statutes Annotated and to the tables of repeals and amendments contained in Scott and Beaman 's Index.

In the compendium at the end an attempt has been made to give extracts and references in such a manner as to make the important points in the cases and opinions stand out. To this end the classification, already explained in Le Consul * has, with some slight modifications, been followed.

Consular Functions as the foundation and object of the consular office and the reason for its existence come first. The Consul's Func-

*Le Consul (Pedone), Paris, 1909.

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PREFACE

tions are themselves classified according as the consul's reason for acting is primarily the direct interest of a citizen or the general interest of the sending state, and this latter division is again divided into Representative, Administrative, and Judicial Functions.

Consular Immunities, making possible the discharge of the consular office within the receiving state, follow logically.

The Organization of the service enables the government of the sending state to choose, retain, and direct its agents.

Certain Legislation on the part of the sending state is necessary to give adequate protection to consuls and compel its nationals to comply with the regulations which the consul is directed to carry out.

Consuls must receive the consent of the receiving state before entering upon the discharge of their duties, and before they can be entitled to the immunities granted by treaties and international law.

It only remains to examine the Termination of consular establishments and the consular office to be in a position to understand the true nature of the consul and to give a Definition.

Such is in outline the system of classification of the compendium. The index will make it possible to find the references to any particular question without understanding the logic of the classification.

The translation of the Regulations Adopted by the Institute of International Law has been made for those who do not read French. Every effort has been made to adhere as closely as possible to the original except that here, as elsewhere, the terms Receiving State and Sending State have been employed because of the great convenience of so doing. The term Consular Agent to designate merchant consuls (Consules Electi) is gaining general acceptance. Perhaps Consuls of Career (Consules Missi) might be designated as Despatched Consuls where spoken of in contradistinction to Consular Agents. A further beneficial distinction might be made by designating as Immunities those rights and exemptions which the receiving state grants consuls of the sending state, and Privileges any privileged treatment, favor or exemption which the sending state accords its own consuls.

An effort has been made to exclude all cases and opinions referring to the exercise of exterritorial jurisdiction, because this branch of the consular service of the different countries has been more carefully studied, and also because of its peculiar nature. It may be a question whether consular exterritorial jurisdiction is destined to disappear entirely. The indications at present, however, seem to point to its abolition in all states of any importance.

"When referring to the cases contained in this volume it must be borne in mind that any decision may have been reversed in some later case or rendered inapplicable by legislative action.

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PREFACE

No distinction between the obiter dicta and the holdings of the courts has been attempted, but a list of citations has been added which will aid in reaching a conclusion as to what was really held, where the case presents any difficulties of interpretation.

I would express my thanks and my great indebtedness to Mr. Herbert Putnam, Librarian of Congress, and to Mr. Middleton G. Beaman, Law Librarian, for the facilities which they have so kindly placed at my disposal.

WASHINGTON, D. C, JULY, 1909.

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