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the first, and for half a century, the only Consular Convention ever negotiated by the United States with another State.
As regards the Treaties with Consular Articles still in force, it may be noticed, that in treating with Great Britain (1815, renewed 1827), and with Liberia (1862), there are only articles of appointment; that in the Treaty with Spain (1795), and Costa Rica (1852), there are only articles of most-favoured-nation treatment; that in Treaties with Switzerland, Appendix No. 45. 1850, the Argentine Confederation (1853), Paraguay (1859), there are also Articles or clauses of powers and privileges in greater or lesser detail; that in Treaties with Sweden (1827), Prussia (1828), Russia (1832), Portugal (1840), Hanover (1846), MecklenburgSchwerin (1847), Sandwich Islands (1849), and Dominica (1867), there are articles or clauses of most-favoured-nation treatment (or of necessary protection), of powers and privileges, and also of facilities for retaining deserters; and that in Treaties more or less of an Oriental character, viz., with—
There are Articles or clauses which, in addition to power of appointment, and fewer or more numerous powers and privileges, involve in a greater or lesser degree, the Consular exercise of judicial functions.
The Treaties containing an Article or clause of intent to negotiate a Consular Convention, are the following, viz., with—
All of these nine Treaties contain Articles of most-favoured-nation treatment, and of powers and privileges, and most of them, in addition, contain articles facilitating the recapture of deserters. It is not uninteresting to note that all these Treaties, including a similar one with New Granada, are with American States.
In examining the details of these Conventions it may, perhaps, be well to collate two of the most recent ones, and then to note any essential deviations from them in the other ones. For this For this purpose the following Conventions are selected :—
It may be observed that there are considerable differences in the stipulations contained in these Conventions.
As regards the admission of Consular officers the clauses of Article I of the Austrian Convention are fuller than is the corresponding Article II of the Belgian Convention. The clauses of the former Article declaring that Consular officers shall exercise their rights in the whole district accorded to them in their appointment has no equivalent in the latter. It is therefore to be presumed that some special reason dictated this express declaration of what is usually tacitly understood.
As regards immunities, alien foreigners, as well as natives, acting as Consular officers are excluded from enjoying them under the Austrian, but not under the Belgian, Convention.
In the matter of testimony before Courts of Law, the clause declaring it to be the duty of the Consular officer to reply, when requested, so as to avoid any unnecessary delay, occurs in the Belgian Convention, but not in the Austrian.
The privilege of hoisting a flag is conceded in the Austrian, but not expressly in the Belgian Convention, to a Consular officer on board any vessel employed by him in a port.
In respect of inviolability, the prohibition of asylum and a provision for keeping Consular papers separate, whenever the Consular officer is a native, occur in the Belgian but not in the Austrian Convention.
As regards the appointment of Vice-Consuls and other Consular officers by Consuls, the alien foreigner, as well as the native, is excluded from the advantage of the usual immunities in the Austrian, but not in the Belgian Convention.
As regards powers to take depositions and to perform notarial acts, there are two differences between the respective stipulations of these two Conventions. The first is that, according to the Austrian Convention, wills of his countrymen may be received at a Consul's office; whereas "wills" are not mentioned in the Belgian Convention.
The second is that, according to the Belgian Convention, Consuls may receive at their offices even contracts of a certain class between citizens of the State where they reside, whereas only contracts between their own countrymen, or between these and natives are receivable, according to the Austrian Convention.
Article X of the Austrian Convention, which has no equivalent in the Belgian Convention, appears to be of importance, and recognizes expressly the right of a Consular Officer to board either before or with the Customs officers the merchant-ship of his State arriving in port, and to be present at all proceedings in connection with the examination and clearance of such vessels.
As to wrecks and salvage, the only differences worthy of note seem to be that, in the Austrian Convention, the charges by the local authorities for their intervention are limited to expenses for property preserved, and to such cost as would be incurred by native vessels; and that likewise in the Austrian Convention it is stipulated that, in cases of doubt as to the nationality of the wreck, the local authorities shall have exclusive jurisdiction, whereas there are no such express declarations in the Belgian Convention.
Article XV of the Austrian Convention, according the most-favoured-nation treatment, has no equivalent in the Belgian Convention.
In the preceding collation of the texts of the two Conventions, no notice has been taken of what appear to be merely verbal differences. The other Consular Conventions may now be briefly examined, and their deviations from the two preceding Conventions may be noticed.
Of these instruments those with Denmark and Bremen (Hamburgh and Lübeck) consist of additional Articles to Treaty stipulations of appointment and privileges. In the latter case they extend to Powers of Arbitration, and to differences between master and crew; and, in the former, also to facilities in recapture of deserters.
The Convention with the Netherlands is for the special purpose of obtaining admission of United States' Consuls in ports of the Dutch Colonies open to the vessels of all nations. As regards the exequatur, a statement of reasons for its withdrawal on any occasion is required.
The Consular Convention with New Granada, the first of the series, and the only one which has followed the conclusion of a General Treaty, with a special stipulation to conclude such a Convention, varies slightly from the subsequent ones with Belgium and Austria. As regards the exequatur, Article II requires the statement of "a reasonable ground" for its withdrawal. The various powers usually granted to a Consul are more fully set forth in Article III, and Clause 10 thereof gives a power to Consuls to administer estates of deceased compatriots in cases of intestacy, except in those States whose peculiar legislation may not allow it.
Article VII of this Convention is of a special nature, and prohibits the issue of passports to persons accused of delinquencies, or liable to any demand of which notice had been duly given to the Consul, and likewise imposes upon the Consul the duty of seeing that the rules of neutrality are observed by the vessels of his nation. Lastly, a Consul may be summoned as a witness, in writing, and there is no provision for his vivá voce examination as in later Conventions,
The Consular Convention with France requires, in Article I, a statement of reasons for the withdrawal of an exequatur from a Consular Officer. Article VII is of a special nature, and declares the right of holding personal and real property in all States of the Union, whose laws permit this right to aliens, and it further engages that the President will recommend to the States prohibiting to aliens the holding of real estate, the removal of such a prohibition. In Article XI, which refers to wrecks and salvage, there is in addition to the usual provisions, the stipulation that, on salvage entered for consumption, a diminution of duty shall be allowed in conformity with the regulations of the respective
The Consular Convention with Italy is almost verbally even the same as that with Belgium, with, however, the exception of Article XIII, which refers to deserters. This Article runs thus:
"The respective Consuls-General, Consuls, Vice-Consuls, and Consular Agents may arrest the officers, sailors, and all other persons making part of the crew of ships of war or merchant-vessels of their nation who may be guilty or accused of having deserted said ships and vessels, for the purpose of sending them on board or back to their country. To that end the Consuls of Italy in the United States may apply in writing to either the Federal, State, or Municipal Courts or authorities; and the Consuls of the United States in Italy may apply to any of the competent authorities and make a request in writing for the deserters, supporting it by the exhibition of the register of the vessel and list of the crew, or by other official documents to show that the persons claimed belong to the said crew. Upon such request alone, thus supported, and without the exaction of any oath from the Consular officers, the deserters, not being citizens or subjects of the country where the demand is made at the time of their shipping shall be given up. All the necessary aid and protection shall be furnished for the search, pursuit, seizure and arrest of the deserters, who shall even be put and kept in the prisons of the country at the request and expense of the Consular officers until there may be an opportunity for sending them away. If, however, such an opportunity should not present itself within the space of three months, counting from the day of the arrest, the deserter shall be set at liberty, nor shall he be again arrested for the same cause."
As the subject of "deserters" is an important one, I have copied it in extenso, so that it can be readily compared with the corresponding articles in the Conventions with Belgium and Austria.
As an instance of the inconvenience and hardship to which British shipmasters are occasionally put on visiting some of the ports of the United States, I may mention the case of the British barque "Grace" which put in at Darien, Georgia, in the month of August last year; and the crew (coloured) striking and refusing to work, the master was unable to compel them to return to their duty or even to procure their arrest, though it was ordered by the Supreme Court of the State of Georgia. On the contrary, he experienced personal ill-treatment; and though the Federal Government recommended the matter to the consideration of the Government of the State, I believe that up to this day no redress has been accorded to him.
As to the working of these Consular Conventions between the United States and other Powers, I understand that by this Government they are regarded as serviceable and mutually advantageous to the Contracting Parties, and more especially the stipulations for the recovery of deserting seamen.
I cannot conclude this Report without placing on record the expression of my best thanks to Mr. J. P. Harriss-Gastrell, Second Secretary to this Legation, for the efficient and friendly aid which, of his own accord, he has given me in the preparation of the (Signed)
Washington, February 6, 1872.
Sir E. Thornton to Earl Granville.
Washington, May 14, 1872.
I HAVE the honour to inclose three printed copies of a Proclamation issued by the resident on the 11th instant, carrying into effect, with regard to the United Kingdom of veden and Norway, the Act of Congress of June 11th, 1864, respecting Consular Jurisction over the crews of vessels of foreign nations in the waters and ports of the United cates. This Proclamation is a consequence of the Treaty of July 4th, 1827, between the Appendix No. 45. nited States on the one side, and Sweden and Norway on the other, the XIIIth and IVth Articles of which contain stipulations for the jurisdiction of the Consuls of eac ountry over the crews of their vessels, and for the arrest of deserters.
I have, &c.
WHEREAS, pursuant to the first Section of the Act of Congress, approved the 1th day of June, 1864, entitled "An Act to provide for the execution of treaties between he United States and Foreign Nations respecting Consular jurisdiction over the crews of essels of such Foreign Nations in the waters and ports of the United States," it is provided that before that Act shall take effect as to the ships and vessels of any articular nation having such Treaty with the United States, the President of the United States shall have been satisfied that similar provisions have been made for the execution of such Treaty by the other contracting party, and shall have issued his Proclamation to hat effect, declaring that Act to be in force as to such nation. And such Proclamation having been made, and a satisfactory answer having been received that similar provisions re in force in the United Kingdom of Sweden and Norway;
Now, therefore, be it known that I, Ulysses S. Grant, President of the United States of America, do hereby proclaim the same.
Done at the City of Washington, this 11th day of May, in the year of our Lord 1872, and of the Independence of the United States of America the ninety-sixth.
By the President, (Signed)
HAMILTON FISH, Secretary of State.
U. S. GRANT.
An Act to provide for the Execution of Treaties between the United States and foreign
[June 11, 1864.]
between officers of
BE it enacted by the Senate and House of Representatives of the United States of Treaty stipulations America in Congress assembled, That, in all cases where it may have been or shall hereafter giving Consuls, &c., be stipulated by treaty or convention between the United States and any foreign nation to jurisdiction over he effect that the Consul-General, Consuls, Vice-Consuls, or Consular or Commercial controversies Agents of the two nations, respectively, shall have exclusive jurisdiction of controversies, vessels and ifficulties, or disorders arising at sea or in the waters or ports of the one nation, between mariners, &c., how he master or other officer or officers and any of the crew, or between any of these last to be carried into hemselves, of any ship or vessel belonging to the other nation, such, stipulations shall be effect. xecuted and enforced within the jurisdiction of the United States as hereinafter declared: Provided, That before this act shall take effect as to the ships and vessels of any particular
ation having such Treaty with the United States, the President of the United States Other Contracting hall have been satisfied that similar provisions have been made for the execution of such Party to make Treaty by the other contracting party, and shall have issued his proclamation to that effect, similar provisions. eclaring this act to be in force as to such nation.
Consul, &c., to apply to proper judicial authority. Application to state
Sec. 2. And be it further enacted, That in all cases within the purview of this act the Consul-General, Consul, or other Consular or commercial authority of such foreign nation charged with the appropriate duty in the particular case, may make application to any Court of Record of the United States, or any Judge thereof, or to any Commissioner appointed under the laws of the United States, to take bail or affidavits, or for other judicial purposes whatsoever, setting forth that such controversy, difficulty, or disorder has arisen, briefly stating the nature thereof, and when and where the same occurred, and exhibiting a certified copy or extract of the Shipping Articles, roll, or other proper paper of the ship or vessel, to the effect that the person in question is of the crew or ship's company of such ship or vessel; and further stating and certifying that such person has withdrawn himself, or is believed to be about to withdraw himself, from the control and discipline of the master and officers of the said ship or vessel, or that he has refused, or is about to refuse, to submit to and obey the lawful jurisdiction of such Consular of commercial authority in the premises.; and further stating and certifying that, to the best of the knowledge and belief of the officer certifying, such person is not a citizen of the United States, and thereupon such Judge, Commissioner, or other judicial officer, or inspection of such application, the same being in writing and duly authenticated by the Warrant for arrest Consular or other sufficient official seal, shall issue his warrant for the arrest of the person so complained of, directed to the marshal of the United States for the appropriate district or in his discretion to any person, being a citizen of the United States, whom he may specially depute for the purpose, requiring such person to be brought before him for examination at a certain time and place. And if, on such examination, it shall be made to appear that the person so arrested is a citizen of the United States, he shall be forthwith discharged from arrest, and shall be left to the ordinary course of law. But if this shall shall be discharged. not be made to appear, and such Judge, Commissioner, or other judicial authority shall find, upon the papers herein before referred to, a sufficient prima facie case that the matter concerns only the internal order and discipline of such foreign ship or vessel, or, whether in its nature civil or criminal, does not effect (affect) directly the execution of the laws of the United States, or the rights and duties of any citizen of the United States, he shall forthIf not, &c., person with, by his warrant, commit such person to prison, where prisoners under sentence of a Court of the United States may be lawfully committed, or to the master or chief officer of such foreign ship or vessel, in his discretion, to be subject to the lawful orders, control, and discipline of the master or chief officer for the time being, of such ship, and to the jurisdiction of the Consular or commercial authority of the nation to which such ship or vessel may belong, to the exclusion of any authority or jurisdiction in the premises of the United States or any State thereof: Provided, nevertheless, That the expenses of the arrest and the detention of the person so arrested shall be paid by the Consul-General. Consul, or Vice-Consuls: And provided further, That no person shall be detained more than two months after his arrest, but at the end of that time shall be set at liberty and shall not again be arrested for the same cause.
If person arrested is a citizen, he
to be committed.
Expenses, how to be paid.
Limit of imprison
Approved, June 11, 1864.