place it, in the government de facto, which is in the actual exercise of power; but the government to whom the ambassador is sent may exercise its discretion in receiving or refusing to receive him.

It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act of his minister. This will depend upon the nature and terms of his authority. (c) It is now the usual case for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of

attorney, or credential of the minister; and it is not under* 41 stood to confer a power upon the minister to bind his

sovereign conclusively. To do so important an act would require, at least, a distinct and special power, containing an express authority to bind the principal definitively, without the right of review, or the necessity of ratification on his part. (a) This is not the ordinary or prudent course of business. Ministers always act under instructions which are confidential, and which it is admitted they are not bound to disclose; (b) and it is a wellgrounded custom, as Vattel observes, (c) that any engagement which the minister shall enter into is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries. (d)

8. Consuls. Consuls are commercial agents, appointed to reside in the seaports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation

(c) The discretion and reserve with which a public minister ought to act in relation to the country in which he resides is strongly exemplified in the case of The Sally Ann, Stewart's Vice-Adm. R. 367. It was held, that a license granted by the British minister at New York, after the commencement of the war of 1812, to an American citizen, to export provisions to a British island, was inconsistent with his diplomatic character and duty, and void; and the decision was declared to be correct and proper, by the Lords Commissioners on appeal.

(a) Bynk. Q. Jur. Pub. lib. 2, c. 7.

(b) Wicquefort's L'Amb. i. sec. 14; Martens, 217.

(c) B. 4, c. 6, sec. 77.

(d) Bynk. ubi supra; Vattel, b. 2, c. 12, sec. 156; Martens, b. 2, c. 1, sec. 3; The Eliza Ann, 1 Dodson, 244. Both Vattel and Klüber agree that a treaty con. cluded under a full power cannot, in honor, be rejected without very sufficient reasons, as by violation of instructions, mutual error, a moral or physical impossibility, &c. Wheaton's Elements, 3d ed. 303-306. See in Wheaton's Elements, 3d ed. 335, a reference to the most respectable writers on diplomatic history.

*

deputing them. The establishment of consuls is one of the most useful of modern commercial institutions. They were appointed about the 12th century, in the opulent states of Italy, such as Pisa, Lucca, Genoa, and Venice, and their origin has been ascribed to the necessity for extraordinary assistance in those branches of commerce formerly carried on with barbarous and uncivilized nations. (e) The utility of such a mercantile officer has been. perceived and felt by all trading nations, and the Mediterranean trade in particular stands highly in need of such accredited agents. (f) Consuls have been multiplied and extended to every part of the world where navigation and commerce can successfully penetrate, and their duties and privileges are now generally limited and defined in treaties of commerce, or by the statute *42 regulations of the country which they represent. (x) In some places they have been invested with judicial powers over disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers; and in England it has been held that a consul is not strictly a judicial officer, and they have there no judicial power. (a) It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no government can invest its consuls with judicial power over their own subjects in a foreign country, without the consent of the government of the foreign country, founded on treaty; and there is no instance in any nation in Europe of the

(e) 1 Chitty Comm. Law, 48, 49.

(f) Jackson on the Commerce of the Mediterranean, p. 30, c. 4. Consuls were not unknown to the ancient Athenians, and they had them in the commercial ports in which they traded, to protect the interests and property of Athenian merchants. St. John's History of the Manners and Customs of Ancient Greece, iii. 282.

(a) Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunt. 162; 1 Chitty, 50, 51.

(x) A consul may acquire a domicile in the country where he is stationed, if he intends to do so, but appointment to a consular office in one's own country, or residence abroad as such an officer, does not change the domicile. Sharpe v. Cris

pin, L. R. 1 P. & D. 611 ; Udny v. Udny, L. R. 1 H. L. Sc. 441; Westlake's Private Int. Law (2d ed.) § 257; In re Patience, 29 Ch. D. 976; Abd-ul-Messih v. Farra, 13 A. C. 431.

admission of criminal jurisdiction in foreign consuls. (b)1 (y) The laws of the United States, on the subject of consuls and vice

(b) Pardessus, Cours de Droit Comm. v. sec. 1450, 1451, 5th ed.; Opinions of the Attorneys-General of the United States, i. 786.

consuls, (c) specially authorize them to receive the protests of masters and others relating to American commerce, and they declare that consular certificates, under seal, shall receive faith and credit in the courts of the United States. It is likewise. made their duty, where the laws of the country permit, to administer on the personal estates of American citizens, dying within their consulates, and having no legal representative, and to take charge of and secure the effects of stranded American. vessels, in the absence of the master, owner, or consignee; and they are bound to provide for destitute seamen within their consulates, and to send them, at the public expense, to the United States. It is made the duty of American consuls and commercial agents to reclaim deserters and discountenance insubordination, and to lend their aid to the local authorities for that purpose, and to discharge the seamen cruelly treated. (d) It is also made the duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters, and passports with the consul, vicé-consul, or commercial agent, if any,

(c) Acts of Congress of 14th April, 1792, c. 24, and of February 28, 1803, c. 62. (d) Act U. S. 20th July, 1840, c. 23, sec. 11, 17. See infra, iii. 199, the treaty between the United States and Hanover, to the same effect.

431; Ex parte Limehouse Board of Works, 24 Ch. D. 177. The judgment of a consular court is, like other foreign judg ments, only examinable by other courts for fraud or lack of jurisdiction. Messina v. Petrococchino, L. R. 4 P. C. 144. See also, as to consular courts, Piggott on Extraterritoriality, 59; 3 Jurid. Rev. 256; 25 Revue de Droit Int. 79, 213, 338; 23 id. 5, 176; 27 id. 313.

The government of the United States has power to make treaties with foreign powers providing tribunals for the exercise of judicial authority by its officials residing in their countries; but, as the Federal Constitution is not operative beyond our territory, its guarantees of presentment by a grand jury and trial by jury do not extend to these courts. In re Ross, 140 U. S. 453; 44 Fed. Rep. 185; see People v. Kernan (Japan), 22 Am. L. Rev. 126; The Ping On v. Blethen, 11 Fed. Rep.

607. Such a tribunal has jurisdiction to try, for an offence committed on an American vessel, when within its jurisdiction, the subject of a foreign nation who has enlisted in its crew. Ibid.; Ross v. McIntyre, 140 U. S. 453. But, where there is no treaty provision, a seaman committed in the United States by a foreign consul may be discharged by the courts. Re Aubrey, 26 Fed. Rep. 848; see Ellis v. Mitchell, Snow's Int. Law, 133; The Marie, 49 Fed. Rep. 286; The T. F. Oakes, 36 id. 442; Williams v. The Welhaven, 55 id. 80. A vice-consul's unrevoked exequatur entitles him to recognition by the courts, although the government which sent him has been overthrown by a revolution. United States v. Trumbull, 48 Fed. Rep. 94. As to the right of a consul of a foreign government to intervene and claim a vessel as its property, see The Conserva, 38 Fed. Rep. 431.

* 43

OF THE LAW OF NATIONS.

[PART I. at the port; though this injunction only applies when the vessel shall have come to an entry, or transacted business at the port. (e) These particular powers and duties are similar to those pre

scribed by British consuls, and to consuls under the con* 43 sular convention between the United States and France, in 1788; and they are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment. (a) The consular convention between France and this country, in 1778, allowed consuls to exercise police over all vessels of their respective nation, "within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and altogether exclusive of any coercive authority; (b) and we have no treaty at present which concedes even such consular func

(e) Toler v. White, Ware, 277; Matthews v. Offley, 3 Sumner, 115. American consuls, having no judicial power, cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility. The Wm. Harris, Ware, 367. But when an American vessel puts into a port of necessity for repairs, a survey to ascertain the damage may, it seems, according to usage, be directed by the American consul, as part of his official duty. Potter v. The Ocean Ins. Co., 3 Sumner, 27. The English Prerogative Court, before Sir Herbert Jenner, in 1839, in the case of Aspinwall v. The Queen's Proctor, 2 Curteis, 241, held that an American consul was not, in that capacity, permitted by the law of England to administer upon the personal estate of a domiciled citizen of the United States dying in England. The Crown takes charge of the property in trust, for payment of debts and distribution, according to the law of the owner's domicile.

(a) Beawes's L. M. i. tit. Consuls, 292, 293.

(b) Mr. Pickering to Mr. Pinckney, January 16, 1797.

1 See act of Congress of August 18, 1856, 11 U. S. St. at L. 52 et seq. c. 127. As to the duties of British consuls, see Abdy's Kent, 148 et seq.

The act of Congress of June 11, 1864, makes provisions for carrying out the exclusive jurisdiction of foreign consuls and like officials over controversies between officers and any of the crew, or between any of the crew, of vessels of their nation, where such jurisdiction has been provided for by treaty. 13 U. S. St. at L. c. 116,

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p. 121. A list of such treaties will be found in Lawrence's Wheaton, note 73.

As to the consul's intervention on behalf of individuals of his nation, see The Adolph, 1 Curt. 87; Robson v. The Huntress, 2 Wall. Jr. 59; The Elizabeth, Blatchf. Pr. 250. As to his protest against the admiralty court's taking jurisdiction in certain cases, post, iii.; Becherdass Ambaidass, 1 Lowell, 569, 6 Am. Law Rev. 74; The Nina, L. R. 2 P. C. 38. (x)

(x) The Leon XIII., 8 P. D. 121