erally, the simplest way would seem to be to have the affidavit made before him and his official character authenticated as required by the statute.' "The law relative to applications for patents is substantially the same. It provides that the oath of the applicant residing in a foreign country shall be taken before a diplomatic or consular officer holding a commission under the government of the United States, or before any notary public of the foreign country in which the applicant may be.' 6 "On the other hand, in respect of declarations on invoices of merchandise intended for export to the United States, the laws of the United States provide that such declarations may be certified by a consular officer of the United States or by a consul of a nation at the time in amity with the United States. If there is no such consul in the country, the authentication shall be made by two respectable merchants, if any there be, residing in the port from which the merchandise shall have been imported.'' Mr. Hay, Sec. of State, to Mr. Elliot, Jan. 12, 1900, 170 MS. Inst. Consuls, 476. A commission to a United States vice-consul or commissioner named, returned executed under his signature as such, is admissible on proof of his signature and that he was reputed and acted as viceconsul before executing the commission. Stiff v. Nugent, 5 R. 217. Hennen's La. Dig. ed. 1861, p. 573. An affidavit, under the code, section 158, providing that proof of service outside the State shall be made by affidavit, without prescribing before whom it shall be made, may be made before a consular agent of the United States authorized by Rev. Stat. U. S. 1878, p. 311, to take affidavits. Marine Wharf & Storage Co. . Parsons (S. C. 1897), 26 S. E. 956. 5. AUTHENTICATION OF DOCUMENTS. § 721. Consuls are not entrusted with the power of authenticating the laws of foreign nations, and their certificates alone are not sufficient proof of such laws. Church v. Hubbart (1804), 2 Cranch, 187, 237. The certification of the official character of a foreign notary is not such a notarial act as a consul of the United States is required to perform. Stanbery, At. Gen., 1866, 12 Op. 1. H. Doc. 551-vol 5- -8 Under the act of 28 February, 1837, No. 38, the certificate of an American consul or commercial agent in any foreign county is legal evidence of the attributes, official station, and authority of any civil officer in such country, under its laws. Succession of Wedderburn, 1 R. 263; Succession of Farmer, Ib. 270; Succession of Hinde, Ib. 271. Hennen's La. Dig. ed. 1861, p. 582. "The power to take the acknowledgment of deeds and other instruments by consuls of the United States is a power conferred upon them by State legislation, and is wholly outside of their functions as consuls or officers of the general government. "The recording acts of the several States are understood to differ as to their requirements and forms of certificates. It would be assuming a responsibility which might be criticised, and which might lead to mistakes resulting in serious consequences, were this Department to undertake to instruct its officers in the discharge of powers which it does not object to their performing for the convenience of the public, but which are imposed or conferred upon them by the legislation of several of the States, each one prescribing at its pleasure its own forms and requirements of proof or identification. This Department does not profess to be informed as to the various requirements, whether by statute or possibly resulting from judicial decisions in the several States. "It is therefore deemed most advisable to leave the execution of the power conferred by State legislation on persons holding diplomatic or consular functions under the general government to the special instructions which may be given by them who desire to avail of their services." Mr. Fish, Sec. of State, to Mr. Weeks, Jan. 21, 1875, 106 MS. Dom. Let. 260. Where the laws of a State require that the acknowledgment of a deed made abroad to real property in the United States shall be taken "before a minister or consul," the acknowledgment should be taken before one of the officers specified. Although a "commercial agent' has the same general notarial powers as a consul, yet the law officer of the Department of State does not look upon the taking of such an acknowledgment as an ordinary notarial act. This objection also applies a fortiori to a "consular agent," who, not being a consular officer in the accepted or legal sense, has not general notarial functions. Mr. Frelinghuysen, Sec. of State, to Mr. Hale, Jan. 29, 1885, 154 MS. United States consuls are not competent to authenticate the seals of local officials of the States of the Union. The Department of State authenticates only the State seals, and can not authorize consuls to certify documents which it can not itself attest. Mr. Cridler, Third Assist. Sec. of State, to Mr. Chester, No. 63, Dec. 26, This rule is not varied by Art. IX. of the consular convention with In 1853 the Spanish consul at New York refused to authenticate the official signature of the Secretary of State of the United States to a document executed before a notary public by "the brothers Arango." The consul's action was justified by the Spanish legation on the ground that the brothers Arango were "fugitive criminals," condemned by default in the island of Cuba for treason, and that the document was therefore null and void, for which reason the consul could not legalize it, to say nothing of the fact that to do so would be" to afford the brothers Arango the means of eluding the law of Spain." The Department of State, declaring that it was the first case of the kind that had occurred in the history of the government, protested against the refusal, maintaining that the consul should not have looked beyond the genuineness of the signature which he was requested to authenticate. The United States, it was said, in granting to the consul an exequatur, expected that "citizens and inhabitants" of the country "would have the benefit of the usual consular acts," among which the authentication of the official signature of the Secretary of State was one of the most common. The duty of authentication was not conceived to be "discretionary," nor was it to be" exercised arbitrarily with reference to the persons who may have executed the accompanying documents." Such a right of discrimination between individuals was not believed to be enjoyed or exercised by any magistrate in the United States; and," as such a power would involve a right to make impertinent inquiries into private business, it would by no means be in conformity with public sentiment in this country and therefore would never be sanctioned by this government." In maintaining this position the Department had sought to "vindicate a general principle." It had not been influenced either by the former relations to Her Catholic Majesty's government of the parties to the instrument in question, "or by their present or prospective relations to the government of the United States;" and still less "by any desire to impart to documents executed in this country for the purpose of being used in Her Catholic Majesty's dominions any legal effect to which they may not be entitled under the law of nations, the treaties between the United States and Spain, and the municipal laws of the latter country." Mr. Marcy, Sec. of State, to Mr. Magallon, Spanish min., Jan. 19, 1854, See, also, Mr. Magallon to Mr. Marcy, Jan. 10, 1854, MS. Notes from Russian consular officers are forbidden to authenticate for use in Russia the papers of natives of that country who emigrated without permission. The United States has remonstrated against this regulation without effect. Mr. Blaine, Sec. of State, to Mr. Wurtz, chargé, No. 41, June 27, 1889, MS. The refusal to authenticate documents under such circumstances was Where the Russian consul-general at New York refused to authenticate certain signatures in a matter of real estate in Russia, it was on one occasion advised that the documents be authenticated under the great seal of the State of New York, with a view to their being authenticated by the Department of State and then by the Russian minister at Washington. (Mr. J. C. B. Davis, Assist. Sec. of State, to Mr. Walter, June 16, 1882, 142 MS. Dom. Let. 429.) The refusal of Russian consular officers to visé the passports of Jews or to authenticate the documents of Jews relating to property in Russia has been the subject of unavailing remonstrance on the part of the United States. Mr. Bayard, Sec. of State, to Mr. Wurtz, chargé, No. 140, Sept. 11, 1888, See, also, supra, § 175. The refusal of an Austro-Hungarian consul to certify to the official character of a notary public," while it may be deemed unfriendly or unneighborly, affords no ground for a complaint to the AustroHungarian government, or for a claim for damages. It has been held that an American consul can not be required to certify to the official character or acts of a foreign notary public. (12 Opinions AttorneysGeneral, 1.) . . . This Department can not undertake to procure for you the certification of the Austro-Hungarian legation or of the consul to the official character of your acts." Mr. Adee, Act. See, of State, to Mr. Moeser, July 13, 1894, 197 MS. Dom. 6. ADMINISTRATION OF ESTATES. $ 722. "In Austria-Hungary, Belgium, Germany, Italy, and Netherlands (and colonies) the local authorities are required to inform consuls of the death of their countrymen intestate or without known heirs. In Germany, Roumania, and Servia consuls have the right to appear for absent heirs or creditors until regularly authorized representatives appear. In Mascat [Muscat], Morocco, Persia, Peru, Salvador, Tripoli, and Tunis they may administer on the property of their deceased countrymen. In Colombia they may do so, except when legislation prevents it. In Costa Rica, Honduras, and Nicaragua they may nominate curators to take charge of such property, so far as local laws permit. In Paraguay they may become temporary custodians of such property. In Germany they may take charge of the effects of deceased sailors." Consular Regulations of the United States (1896), § 91, p. 35. With reference to a communication touching the efforts of the British consul in New England to obtain possession of the effects of the late Governor Delancey, of Tobago, who had died at Portsmouth, N. H., Mr. Pickering, citing a clause in Article XVI. of the Jay treaty to the effect that consuls should "enjoy those liberties and rights which belong to them by reason of their function," said: "Now, I conceive one of the consular rights and a duty to be to receive, inventory, take care of and account for the effects of any subject of the nation by which the consul is appointed, and who dies within his jurisdiction or consulate." He added that the subject was often explicitly regulated by treaties, but that he understood it to be "a general usage to which civilized nations have tacitly or practically assented." Mr. Pickering, Sec. of State, to Mr. Smith, May 13, 1799, 11 MS. Dom. "There is believed to be no difference between the death of a consul and that of any other private foreigner in respect to his effects. The consular office is not known to create any. Upon the death of any foreigner, whether consul or not, if he has left no family nor relations to take charge of his estate at the place of his death, a practice prevails to allow the consul of the country of the deceased to put his official seal upon the effects of the deceased, until the local law operates upon them by a grant of administration, or if no such administration be granted, for the purpose of transmission to the kindred of the deceased." Mr. Clay, Sec. of State, to Mr. Vaughan, British min., Nov. 12, 1827, MS. |