Kimball, Charles E., Jr.

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Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 6 Issue 3 January 1921 Immunities and Privileges of Foreign Consuls While Passing Through a Third State Charles E. Kimball Jr. Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Law Commons Recommended Citation Charles E. Kimball Jr., Immunities and Privileges of Foreign Consuls While Passing Through a Third State, 6 ST. LOUIS L. REV. 125 (1921). Available at: https://openscholarship.wustl.edu/law_lawreview/vol6/iss3/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. LIMMUNITIES AND PRIVILEGES OF FOREIGN CONSULS.IMMUNITIES AND PRIVILEGES OF FOREIGN CON-SULS WHILE PASSING THROUGH A THIRD STATEPART 1EXCEPTIONS AND IMMUNIrIES OF CONSULS.It frequently happens that consuls while en route to theirposts become involved in litigation due to some act in violationof laws of the country in which they are temporarily staying,through ignorance of its laws.As a general rule consuls are not considered as ambassa-dorial officers, but are not the less entitled to certain privilegesand immunities. The treaties and internationl customusually provide for the freedom of the consulate, of thepapers contained therein, for the exemption from arrest formisdemeanors of the consular officers, and in addition for allthe privileges extended to consuls by the local law or by inter-national custom as well as any privileges and immunitiesspecially secured to consuls by treaty. As a general ruleconsuls and sub-consuls are amenable to the civil processes ofthe country to which they are accredited and are responsiblefor contract liabilities arising out of the pursuit of their ownpersonal interests. It is thus generally said that the resultof the English, American and French cases establishes thatconsuls have certain privileges, but that they are not diplo-matic officers and that they cannot claim any of the immuni-ities accorded specially to members of the diplomatic service.Viseash v. Becker, 3 M. & S. 284; Clark v. Cretico, 1 Taunt186; Aspinwall v. Queens Proctor, 2 Curteis 241; Sorensen v.Reg., 11 Mo. P. C. 141; The Octavie, 33 L. J. Adm. 115; Davis v.Packard, 7 Peters 276; St. Lukes Hosp. v. Barkley, 3 Blatchf.259; 2 Calvo. Droit International, Sec. 485.This opinion is also concurred in by Pigott-Foreign Judg-ments and Jurisdiction, Part L, p. 321; Moore's Dig. of Inter-125Washington University Open ScholarshipST. LOUIS LAW REVIEW.national Law, Vol. V. pp. 61, et seq. The reasons are givenbest in a French work-L'Immunit' civile de Jurisdiction byOzanam, who says (pp. 69-71) (our translation):"Immunity is granted to individuals representing the stateand accredited by it and having for their exclusive missionthe playing of a representative role. Outside of such capacityit is evident that there is no need for them to have the benefitof such privilege . . . Diplomatic agents and consuls fallinto two distinct categories, having their respective attributesand their own rules. Consuls do not represent in any fashionthe sovereignty of the state appointing them . . . Theirfunctions have of course an official character, but not political.Their part consists only in taking care of the private interestsof their nationals, and accordingly it is not clear that theirindependence would in any way be compromised by their sub-jection to a foreign tribunal. Hence jurisprudence does nothesitate to except consuls from the benefits of civil immunities,and the authors 9f all nationalities share this view."To the same effect, see, Droit L'EterritorialitM des AgentsDtplomatiques, pp. 2-3.PART II.TREATY PROVISIONS AS BETWEEN THE UNITED STATESAND GREAT BRITAIN.By the "Convention of Commerce and Navigation" beftweenthe United States and Great Britain, ratified December L2,1815, and indefinitely extended by convention of August 6,1827, it is provided in Article Fourth, in very general lang-uage, that for misbehavior of consuls they may be punishedeither according to the law of the country to which they areaccredited, or sent back to Great Britain with a letter assign-ing the reasons for the discharge. The treaty is silent as toprivileges and immunities granted to representatives of thegrade of consul, vice-counsul and pro-consul.https://openscholarship.wustl.edu/law_lawreview/vol6/iss3/2IMMUNITIES AND PRIVILEGES OF FOREIGN CONSULS.PART IH.LAWS AND CUSTOM OF THE UNITED STATES.By the Constitution the judicial power of the United Statesextends to all cases affecting ambassadors, other public min-isters and consuls, and by the Judiciary Act of 1789 it is pro-vided that the several district courts of the United Statesexclusively of the courts of the several states, have jurisdic-tion of all suits against consuls and vice-consuls, certain of-fences excepted.PART IV.THIRD STATES.The rule as to the exemptions and immunities of ambassa-dorial officers, and likewise of consuls when passing througha friendly third state on their way to take up their duties ina particular country, and as to the duties which a third stateowes to the officers and representatives of a foreign powertemporarily within its borders, is subject to some controversy.The modern weight of authority, however, seems to favorthe according to these officers of the same privileges and im-munities which would be granted to them were they accreditedto the Government of the third state through which they arepassing.Merlin Repertoire Ministre Publique, see. 5, par. 3, nos. 4and 12, says (the translation being Mr. Wheaton's, from his5th edition, page 351):"When it is said that an ambassador is entitled in theterritories through which he merely passes, to the independ-ence belonging to his public character, it must be understoodwith this qualification, that he travels as an ambassador; thatis to say, after having caused himself to be announced as such,and having obtained permission to pass in that character, thepermission places the sovereign, by whom it has been granted,under the same obligation as if the public minister had beenaccredited to and received by him."Washington University Open ScholarshipST. LOUIS LAW REVIEW.In the case of Wilson v. Blanco, 56 N. Y. Sup. 582, Blancowas an envoy extraordinary and minister plenipotentiary dulyaccredited from Venezuela to France and recognized as suchby the United States. While he was in the City of New Yorkawaiting early means of conveyance to France, he was servedwith a summons in a civil action, and upon his failure to ap-pear a judgment was recovered against him, after which mo-tion was made at a Special Term of the Supreme Court tovacate the judgment and to set aside the service of the sum-mons on the ground that when it was served he was an am-bassador and as such not amenable to any civil action broughtagainst him in this city. It was held that the service of thesummons and the subsequent judgment were of no foFce andwere void and were to be vacated and set aside.As we have seen in Part 1 of this memorandum, however,officials of the rank of ambassador are accorded privilegessuperior to those which are granted to lower officers or agentsof the diplomatic service. 15 Ruling Case Law 167-8.In conclusion, we submit that a proceeding in the State courtis by virtue of the Constitution and the Acts of Congress pur-suant thereto, in a case dealing with a consul, a total nullity.In the early case of Davis v. Packard, supra, it was held thatthe objection of want of jurisdiction could be raised at anytime during the trial and possibly thereafter. We submitthat any rules of procedure as to waiver of defenses whichare not pleaded, can have no application. Considerations ofpolicy may suggest the advisability of allowing a suit to pro-ceed to the exhaustion of the resources of the plaintiff, ob-jection then being made that the court is totally withoutjurisdiction and therefore the proceedings are a nullity. Atthis juncture possibly a compromise of the suit might be hadat a reasonable expense.CHARLES E. KIMBALL, JR.https://openscholarship.wustl.edu/law_lawreview/vol6/iss3/2

Immunities and Privileges of Foreign Consuls While Passing Through a Third State

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Immunities and Privileges of Foreign Consuls While Passing Through a Third State

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