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Mr. Lumley to Earl Granville.—(Received December 25.)
From inquiries I have made at the Foreign Office with reference to those Conventions, I learn that they have worked in a satisfactory manner, and that up to the present time there has been no difficulty in carrying out their provisions, only two infractions of the same having been reported to the Belgian Foreign Office; those infractions which were caused by the ignorance of local authorities, with the stipulations of the Conventions having led to no ill or serious consequences.
I have, &c. (Signed)
J. SAVILE LUMLEY.
Report on the Provisions and Working of the Consular Conventions concluded by Belgium with other States.
UNTIL 1868 the rights and prerogatives of Consuls were defined by law and custom alone, not by any international engagements, excepting some dispositions inserted occasionally in Commercial Treaties concerning the arrest of deserted seamen, the management of wrecked vessels, and the treatment of the most-favoured nation as accorded to Consuls. The United States have frequently complained of the obstacles which their Consuls encountered in the exercise of their functions, and in adhering to the redemption of the Scheldt toll (1863) required of the Belgian Government a declaration that it would examine the question, with a view of arriving at an agreement. The Consular Convention in sixteen Articles of 5th December, 1868, was concluded by Belgium in compliance with this engagement, and is an almost literal reproduction of a similar act concluded between the United States and Italy in 1868. Its principal features are:
1. A recognition of certain immunities in favour of Consuls who are citizens of the state which they serve, as distinguished from others who are natives of the state where they reside, these latter to be subject to all charges affecting other natives.
2. Certain notarial powers are granted to Consuls in cases concerning their own countrymen; hence American captains cannot be called upon to make their "rapport de " before the Tribunal of Commerce on their arrival in a Belgian port, as required by the Commercial Code.
3. This Convention recognizes the exclusive jurisdiction of the Consuls over the internal order of ships of their nation and in all differences arising among the crews.
4. In compliance with the demand of the Americans, the settlement of damages suffered at sea is taken from the local tribunals and left to the Consuls in cases where their own countrymen are alone interested.
The other points regulated are merely confirmatory of the previous practice, such as the recognition of Acting Consuls during the absence of the Consuls; the right of Consuls to appoint Vice-Consuls within the limits of their jurisdiction; the right of directing the salvage of their national vessels when wrecked; their right to receive communication of the death of their countrymen without any known heirs; the arrest of deserters, &c.
The Bill ratifying this Convention when presented to Parliament contained an article empowering the Government to conclude similar conventions with other States.
This article was expunged by both Chambers on the ground of the 68th Article of the Constitution which provides that "Treaties of Commerce, and those which may tax the State or individually bind any Belgians, shall have no effect until after their having received the sanction of the Chambers." The Central Section expressed an opinion
against delegating to the executive power this right which the legislature derived from the Constitution.
Some exception was also taken by the Section Centrale to the discrepancy of words and even of meaning between the French and English texts, particularly in Article VIII of the Treaty. The Minister, however, explained this discrepancy by stating that the two texts were not to be considered literal translation of each other, but were independent; that each party had the right of expressing its idea in the form which it considered most expedient, provided that the two versions agreed with each other in the main; that the intentional discrepancy pointed out in Article VIII, arose from the different modes practised in the two countries of appointing Vice-Consuls, those of the United States being appointed by the Consul, those of Belgium, by a Royal "Arrêté."
With reference to Article XIII, on the settlement of damages suffered at sea, the practice which had grown up in Belgium of referring such cases to commercial tribunals had excited the complaints of the United States' Consuls. Article XIII of the Treaty defines the cases wherein the Consuls shall take cognizance of the damages and settlement of averages, and those where, in default of contrary stipulations or of agreement among the parties interested, an appeal shall lie to the competent local authority.
This Convention is in a great measure founded on the same principles as that Appendix No. 24. concluded between France and the United States on the 23rd February, 1853, which seems to have worked satisfactorily. It is stated that at Hâvre the United States' Consuls have always distinguished in their treatment of marine damages, between damages to the ship, and damages to the cargo, taking cognizance only of the former without any interference of the local tribunals, but leaving to the tribunals the settlement of the latter cases, as also of all general averages "avaries grosses," i.e., damages affecting both the ship and cargo.
It is stated officially that the same course would probably be followed in Belgium, and that at all events, an appeal would lie to the local authority when other than American interests should be involved.
The Consular Convention concluded on the 19th March, 1870, with Spain, was the Convention with complement of a Treaty of Commerce and Navigation signed in the preceding month. The Spain: Appendix previous connection of 1868 with the United States, served as a model for this Convention. All of its clauses were either literally or substantially identical with the corresponding clauses in the previous Convention, one Article alone contains an important additional provision.
The XVth Article provides that, in case of the minority or the absence of the heirs of a deceased alien belonging to either of the contracting States, the Consul of his State shall have the right, in concert with the local authority, to execute all acts necessary for the preservation and administration of the property; especially to affix and remove the scals, to draw up the inventory, to administer and liquidate the estate, in a word, to take all measures necessary for the protection of the heirs, saving only in the case of a contestation arising, which must be judged by the local tribunals of the country where the estate is administered.
In the same year a similar Convention was signed with Italy, at the request of this latter State, on the 12th of December. It was an exact reproduction, word for word, of the dispositions of the Belgian-Spanish Convention. It was stated by the Minister of Foreign Affairs that, from the experience of the past, the former Conventions had not occasioned, and probably would not occasion, any difficulty or complaint.
The same observation is applicable down to the present month. Only two insignificant infractions have occurred, caused by the ignorance of certain local authorities, which had no serious consequences. H. P. T. BARRON.
Brussels, December 23, 1871.
Mr. Cobbold to Earl Granville.-(Received January 13, 1872.)
The principal privileges involved in these Conventions are those connected with the administration of the intestate estates of foreigners deceased in Brazil, which is otherwise attended with considerable abuses and difficulties, owing to the vexatious and tardy mode of procedure followed by the Brazilian Law Courts, especially the orphan Courts in such
The Consular Convention with Portugal which, owing to the vast interests of Portuguese subjects in Brazil is the most noteworthy, is likely I am informed soon to be abrogated. It does not, on the one hand, operate as favourably as might be expected to Portuguese interests, owing, it is to be feared, to the jealousy shown and difficulties made by subordinate Brazilian officials, who by its existence are often deprived of considerable fees and other pecuniary advantages.
On the other hand the Conventions are viewed with much disfavour in Brazil.
The French Consular Convention, which was concluded in 1860, and which was the first of Brazilian Consular Conventions, was only obtained after long negotiations, although French Legislation opposed no difficulty to the grant to Brazil of perfectly equal conditions.
In the case of Great Britain, to whom with Austria, Consular Conventions were refused in 1862, the refusal (according to the Marquis d'Abrantes' Report to the Chambers in 1863), was grounded on the fact that "the essential basis was wanting in such agreements of treatment of the Consular Agents of the High Contracting Parties on the footing of the most perfect equality and reciprocity in the exercise of their functions.”
The most important points at issue I understand to have been the following. Firstly, as to the rights accorded to Consuls. It was required that the Brazilian Consul shall have in England the right of acting as Administrator in all cases of intestacy without any option in the Court of Probate. The second difficulty was that children of British subjects born in Brazil being, by Brazilian Law, Brazilians, could not, being minors, be included as English in the British Consul's administration of intestate properties, owing to the fact that the children of Brazilians born in England are British subjects, and cannot be treated while minors as Brazilians.
Her Majesty's Consul, in his answer to your Lordship's Circular of the 26th August, has, I understand, referred fully to the subject of Consular Conventions, and the status of British Consuls in this Empire.
Appendix No. 37.
I have, &c.
T. CLEMENT COBBOLD.
Mr. Bunch to Earl Granville.-(Received December 11.)
Only one such is at present in force in Colombia, viz., that with the United States of
There have been two others with Chile (July 30, 1853) and the Ecuador (August 1, 1854), but they have expired, and have not been renewed.
One has been lately negotiated with Peru, but the Congress of this year did not sanction it.
In the Convention with the United States the chief Articles of interest are the following:
"Power to arrest deserters from vessels;
"Inviolability of archives and papers of Consulates which are not to be seized by any
"Consuls, in all that relates to the exercise of their functions shall be independent of the State in whose territory they reside;
Consuls, and their Chancellors or Secretaries, shall be exempt from all public service, and from contributions, personal and extraordinary, imposed in the country where they reside;
"Wherever the presence of Consuls may be required in Courts of Justice, &c., they shall be summoned in writing."
As regards Consular Conventions in general I have always been of opinion that they are of considerable use, particularly in new and unsettled countries, as they tend to raise the Consular position by assimilating it to the Diplomatic. They also serve as a check upon the occasional impertinence of ill-bred functionaries of such countries who are glad to summon a Consul before them on frivolous pretexts.
In well-regulated countries there is less necessity for such safeguards, but even in them I think that a Consular Convention adds to the dignity of the Consul.
Such being my feeling, I should be glad to see them multiplied. With us, however, I believe the difficulty to be that we will not concede the right of not appearing before Courts and the like to any but Diplomatic Agents, and as this exemption is generally the basis of all Consular Conventions, we do not enter into them.
Sir C. Wyke to Earl Granville.-(Received December 26.)
Copenhagen, December 22, 1871. IN compliance with the instructions contained in your Lordship's Circular despatch of tho 28th of August last, I have the honour to report that Denmark has only one Consular Convention which was signed with the Government of Holland at the Hague on the 6th of June, 1856, and which provides for the reciprocal admission of Consuls in the principal ports of the Dutch and Danish Colonies.
This Convention, together with a précis of its contents made by Mr. Lascelles, I have the honour herewith to transmit.
Although this is the only Consular Convention into which Denmark has entered, yet in all her Commercial Treaties a clause has been inserted, stipulating that the Consular Agents of the respective countries shall enjoy all the privileges and immunities granted to the Consular Agents of the most-favoured nation.*
THE Consular Convention between Denmark and Holland (copy of which in French, Danish, and German, is herewith inclosed) is the only Treaty of the kind into which Denmark has entered.
* Additional Articles to the Convention of Commerce between Denmark and the United States, of 26th Appendix No. 18. April, 1826, were agreed upon on the 11th July, 1861, with special reference to Consuls.
According to this Convention, which was signed at the Hague on the 6th of June, 1856, and which provides for the reciprocal admission of Consuls in the principal ports of the Dutch and Danish Colonies, the Consular Agents are considered as Commercial Agents, and the protectors of the maritime commerce of their respective countries in the ports of their Consular districts. They are bound to submit to the laws of the place where they reside and, although entitled to put the arms of the State they represent above the doors of their houses, yet this mark is not to be considered as giving a right of asylum or of enabling the persons residing there to evade the laws. The archives of the Consulate are always to be respected. The Consular Agents are not invested with any Diplomatic character, and may be selected from the subjects of any State who have acquired the right of residing in the place where the Consulate is situated. They may appoint Vice-Consuls subject to the approval of the Governor of the Colony. In cases of shipwreck the Consular Agent of the State to whom the vessel belongs will, in the absence, or with the consent, of the captain, take the necessary measures for saving the ship and cargo. In the absence of the Consular Agent, the necessary measures will be taken by the loca authorities. The local authorities are bound, upon the demand of the Consular Agents to afford every facility for the apprehension or imprisonment of deserters either from merchant vessels or from vessels of war in so far as the extradition of deserters has been agreed to by Treaty. If the deserter should have committed any offence punishable by the local laws, the extradition may be postponed until he has been tried by the competent Court, and the sentence carried into execution. In the case of a subject of one of the two States dying intestate or without any known heirs in one of the Colonies of the other State, the local authorities are bound to give information to the Consular Agent, in order that he may communicate with the parties interested. The Consular Agents are entitled to be appointed arbitrators in the case of disputes between the captains and crews of vessels belonging to the State they represent, without any intervention on the part of the local authorities, unless the conduct of the crew or captain has been such as to disturb the public peace, or unless the Consular Agents themselves demand such intervention in order to carry out their decisions. If the Consular Agents are not subjects of the State in which they reside, and are not engaged in any profession or trade other than their Consular functions, they are exempted from the payment of all contributions of a personal nature. This immunity, however, does not extend to Custom-house duties or to other indirect taxation. If they are subjects of the State where they reside, or are engaged in any other trade or profession, they are bound to fulfil all the obligations in common with the other subjects and inhabitants. The Consular Agents of the two States are to enjoy all the privileges and immunities granted to Consular Agents of the most-favoured
This Convention, as stated above, is the only one of the kind into which Denmark has entered, but, in all the Commercial Treaties to which Denmark is a party, a clause has been inserted stipulating that the Consular Agents of the respective countries shall enjoy all the privileges and immunities granted to Consular Agents of the most-favoured
Mr. C. Smith to Earl Granville.—(Received December 11.)
Guayaquil, November 6, 1871. IN conformity with the request contained in your Lordship's Circular despatch of the 28th of August last, I have the honour to inform your Lordship that the Republic of the Equator has only entered into Consular Conventions with the States of Chile Appendix No. 17. (June 26, 1855,) and New Grenada (now United States of Colombia).* The provisions of both these Treaties are exactly the same, and the following are the provisions, namely :— That each Republic has the right to maintain Consuls-General, Consuls, or ViceConsuls in all places open to foreign trade in the territories of the other State, in which the residence of these officials may be permitted to any other nation. Said Consuls must present their letters-patent, and receive the usual exequatur before they can exercise their functions.
* 1st August, 1854. Mr. Bunch states that this Convention has expired. See page 4.