functions in any case, unless expressly authorized by the President so to do," a retiring minister can not install a consul in charge of the legation, nor can the consul receive the pay provided by law for a chargé d'affaires. Otterbourg v. United States, 5 Ct. Cls. 430. Under Revised Statutes, secs. 1695, 1703, authorizing the President to provide for the appointment of vice-consuls, vice-commercial agents, etc., and to fix their compensation, and under the Consular Regulations of 1888, secs. 36, 87, it is proper to appoint a vice-consulgeneral when the consul-general is sick and unable to discharge his duties, and a vice-consul previously appointed has not qualified but is absent from the country. United States v. Eaton, 169 U. S. 331, 18 S. Ct. 374. Under Consular Regulations of 1888, sec. 87, authorizing "the diplomatic representative" to appoint a vice-consul in case of emergency, the minister of the United States in Siam, who is also consulgeneral, may, on becoming ill so as to be disqualified from discharging his duties, appoint a vice-consul-general, and the fact that he is unable to perform the duties of the office of minister resident does not deprive him of the power in that capacity to make an emergency appointment. United States v. Eaton, 169 U. S. 331, 18 S. Ct. 374. In case of emergency or in the absence of the consular agent on leave, the principal consular officer may designate, with the approval of the Department of State, a suitable person to perform the duties under the title of consular agent. Consular Regulations of the United States (1896), § 21, p. 9. See, also, Mr. Porter, Act. Sec. of State, to Tevfik Pasha, Turkish min., By the act of April 5, 1906, for the reorganization of the consular service, consuls-general are divided into seven classes, according to salary, and consuls into nine classes. And it is further provided that "the offices of vice-consuls-general, deputy consuls-general, viceconsuls, and deputy consuls shall be filled by appointment as heretofore, except that whenever, in his judgment the good of the service requires it, consuls may be designated by the President without. thereby changing their classification to act for a period not to exceed one year as vice-consuls-generals, deputy consuls-general, viceconsuls, and deputy consuls; and when so acting they shall not be deemed to have vacated their offices as consuls." It is also provided that "consular agents may be appointed, when necessary, as heretofore;" and that "the grade of commercial agent is abolished." Act of April 5, 1906, sections 2 and 3. As to inspectors of consulates, see supra, § 696. The act provides that the provisions of law relating to the official bonds of consuls-general, and the provisions of sections 1734, 1735, and 1736, R. S., shall apply to the inspectors of consulates or consuls-general at large. Mr. Hay, Secretary of State, sent to Governor Foster, of Louisiana, July 27, 1899, the following telegram: "In view of the absence of the Italian consul from his post at New Orleans, the Italian Government has provisionally appointed Marquis Camillo Romano, second secretary of the embassy, to be gerant of the consulate. He has been recognized in that capacity by direction of the President. I have the honor to advise you thereof, and at the request of the Italian chargé to ask that Signor Romano be accorded due recognition and all possible consideration by the authorities of Louisiana." For. Rel. 1899, 444, 445. "If Congress should think proper to appoint consuls, we are humbly of opinion, that the choice will fall most Question of citi- justly, as well as naturally, on Americans, who are, zenship. in our opinion, better qualified for this business than any others; and the reputation of such an office, together with a moderate commission on the business they may transact, and the advantages to be derived from trade, will be a sufficient inducement to undertake it, and a sufficient reward for discharging the duties of it." Messrs. Franklin, Lee, and Adams, to the President of Congress, July 20, 1778, 7 John Adams's Works, 20. See, also, id. 209. In the consular and diplomatic appropriation act approved February 25, 1885, there is the following clause: "For consular officers not citizens of the United States, six thousand dol- This item is also found in the consular and diplomatic act of July 1, "With respect to your inquiries on the subject of consuls, viceconsuls, and agents, you will observe that the system of the United States is different from that of other nations. We appoint only na tive citizens consuls. Where a port is important enough to merit a consular appointment, if there is a deserving native there, he is named consul; if none, we name a merchant of the place vice-consul, notifying him that whenever a citizen settles there he will be named consul, and that during his residence the functions of the vice-consul will cease, but revive again on his departure; in the meantime the vice-consul of one port and its vicinities has no dependence on the consul of another; each acts independently in his department, which extends to all places within the same allegiance nearer to him than to any other consul or vice-consul. Each may appoint agents within their department who are to correspond with themselves.” Mr. Jefferson, Sec. of State, to Mr. Johnson, consul, Aug. 29, 1791, MS. "It has been the general and almost invariable rule of this government to appoint in preference a native American citizen to every consular office abroad; when a person bearing that character, suitably qualified for the office, was also desirous of obtaining it." Mr. Adams, Sec. of State, to Mr. Hill, consul at Rio de Janeiro, April 30, 1819, 2 MS. Desp. to Consuls, 159. "From the nature, variety, and importance of consular duties, and their bearing on the commercial interests of nations, consuls ought always to be citizens of the country which they represent. Accordingly Vattel (Book 2, cap. 2, sec. 34) declares that the functions of a consul require, in the first place, that he should be not a subject of the state where he resides, as, in this case, he would be obliged in all things to conform to its orders, and thus not be at liberty to acquit himself of the duties of his office.' Chitty, in his Commercial Law (vol. 1, page 48), adopts the same principle. It is true he proceeds to say: 'But, contrary to this principal, it is not unusual to appoint a native of the foreign state to be the consul there, as in Portugal, Spain, and Italy, where there is a scarcity of British subjects, and in which it has been customary for the consul-general to appoint natives of such countries to act as their deputies at inferior ports.' He adds, however, but this, it has been observed, is an unwarrantable and impolitic practice.' "The President, at an early period of his administration, had this subject under consideration, and determined to appoint no consuls who were not American citizens, and, indeed, several consuls have been removed because they did not possess this qualification." Mr. Buchanan, Sec. of State, to Mr. Donelson, Dec. 16, 1846, MS. Inst. "As a general rule it is preferable that United States citizens only should be appointed to all consular offices. When, however, none can be found to serve at a particular place, aliens may be selected, giving the preference to citizens or subjects of other nationalities than that of the country where the officer is to serve. "When, however, no such person can be found, a subject of the country may be appointed if not contrary to law or treaty. If any other country has a consular officer in Tripoli who is a Turkish subject the United States may claim the same privilege under their treaty. In the case of a consular agent, however, it would be advisable previously to name to the local authorities the person proposed to be appointed, if they should not object." Mr. Hunter, Second Asst. Sec. of State, to Mr. Vidal, Aug. 11, 1873, MS. "The experience of the government has demonstrated the inconvenience and often serious embarrassment resulting from the appointment of naturalized citizens to consulates within the country of their nativity, while with regard to appointments in other countries they stand on the same footing as all other citizens." Mr. Fish, Sec. of State, to Mr. Glover, Apr. 7, 1876, 112 MS. Dom. Let. 586.. As to the impolicy of appointing naturalized citizens as consuls to the country of their origin, see Schuyler's Am. Diplomacy, 79. By section 21 of the act of Aug. 18, 1856, diplomatic officers and principal consular officers were required to be citizens of the United States. (11 Stat. 60.) By the act of Feb. 28, 1867, payment of compensation to principal consular officers who were not citizens was forbidden. (14 Stat. 412; 12 Op. At. Gen. 124.) The act of June 11, 1874, provided for the payment of salaries to certain consular officers not citizens. (18 Stat. 66.) The Revised Statutes, which became law June 20, 1874, do not contain that part of the act of 1867 prohibiting payment to consuls not citizens (see § 1690), and § 1744 incorporates only that part of sec. 21 of the act of 1856 which requires diplomatic officers to be citizens. It therefore does not seem to be contrary to law to commission as a consul one who is not a citizen of the United States. (R. S. §§ 5595, 5596.) Nevertheless, it is the general practice to commission only citizens; but there are occasions when by reason of inadequate salary or the lack of any at all it is not possible to appoint citizens. It often happens that an alien is appointed vice-consul, or consular agent, though even in these cases preference is invariably given to citizens where one can be found for the post. Mr. Adee, Act. Sec. of State, to Mr. Winchester, Aug. 13, 1895, 204 MS. "No person who is not an American citizen shall be appointed hereafter in any consulate-general or consulate to any clerical position the salary of which is one thousand dollars a year or more." Act of April 5, 1906, section 5. With reference to objections suggested by the Chinese government to the appointment by the United States as consuls at treaty ports of persons engaged in trade, Mr. Seward observed that it was obvious that it would be preferable in many cases to have consuls who should receive adequate salaries from the Government; but that the extended condition of modern commerce rendered it impossible for any government exclusively to adhere to that system; that, consequently, every maritime power employed merchants as consuls, and that the practice was often sanctioned by treaties and was recognized by the law of nations. Mr. Seward, Sec. of State, to Mr. Burlingame, min. to China, No. 25, See, also, same to same, No. 30, March 3, 1863, id. 850. For dispatches of Mr. Burlingame, to which these instructions were in reply, see id. 829, 842. For views substantially the same as those expressed by Mr. Seward, see Mr. Upshur, Sec. of State, to Mr. Huntington, U. S. S., Jan. 20, 1844, 33 MS. Dom. Let. 462. See, also, infra, § 710. III. EXEQUATUR. 1. NATURE AND EFFECT. § 698. The question of the right of a consular officer, principal or subordinate, to exercise consular privileges at a particular place depends upon the scope of his exequatur. Mr. Fish, Sec. of State, to Mr. Stevens, June 23, 1873, MS. Inst. Paraguay, See, as to consular exequaturs, Hall, Int. Law, 5th ed., 318. It appearing by a publication in a newspaper in Venezuela, over the signature of the Venezuelan consul and vice-consul at New York, that they claimed to be sole agents in that city for emigration to Venezuela, the matter was called to the attention of the Venezuelan minister at Washington, with the statement that, as the exercise of the functions of emigration agents was not sanctioned by the exequaturs of the officers in question, it was preferred that they should abstain from acting in that capacity. Mr. Fish, Sec. of State, to Señor Dalla Costa, Aug. 22, 1874, MS. Notes to Venezuela, I. 154. |