Mr. Uhl, in his note to Baron Fava, adverted to the practical difficulties sometimes growing out of the fact that the local courts, in which estates were administered, were frequently remote from the place where the nearest consular officer was stationed, as, for example, in the State of Texas, in whose vast territory there was only one Italian consul, who was stationed at Galveston. By the law of nations a consular officer is the provisional conservator of the property within his consular district belonging to his countrymen who die therein. The United States Consular Regulations direct consular officers, when foreign local authorities institute. proceedings in relation to the property of deceased Americans who leave no representative in the foreign country, to intervene by way of observing the proceedings, "but it is not understood that this involves any interference with the functions of a public administrator." In conformity with this rule are to be construed the stipulations in the treaties of the United States with Austria-Hungary, Belgium, Germany, Great Britain, Roumania, and Servia, which give to consular officers the right to appear personally or by delegate in all proceedings on behalf of the absent heirs or creditors of their deceased countrymen, until they are otherwise represented. Mr. Hay, Sec. of State, to Mr. Wolcott, U. S. S., Feb. 3, 1900, 242 MS. Dom. See, to the same effect, Mr. Wharton, Act Sec. of State, to Count Paragraph 409 of the Consular Regulations of 1896 is not altogether consistent, for, while it declares that "a consular officer is by the law of nations and by statute the provisional conservator of the property within his district belonging to his countrymen deceased therein," and that it is his duty "to take possession of the personal estate left by any citizen of the United States," yet it goes on to say that he has no right, as a consular officer, apart from the provisions of treaty, local law, or usage, to administer on the estate, or in that character to aid any other person in so administering it, without judicial authorization," and restricts his duties to " guarding, and collecting the effects and to transmitting them to the United States, or to aid others in so guarding, collecting, and transmitting them, to be disposed of pursuant to the law of the decedent's State." "This qualifying limitation upon his powers follows an opinion of AttorneyGeneral Cushing (7 Op. Att. Gen. 274). It implies that the power and duty of the consul to so guard, collect, and transmit the decedent's estate is not exclusive. If those powers are not conferred upon him by treaty, local law, or usage, it is his alternative duty to aid others. upon whom those functions devolve under local law. Section 389 of the Consular Regulations prescribes that the authority of con suls with respect to the effects of deceased citizens can be exercised, however, only so far as is permitted by the authorities of the country, or is accorded by established usage, or is provided for by treaty or the laws of the country, meaning the lee loci. There is no treaty stipulation between the United States and Great Britain on this point. Article IV. of the treaty of 1815, which is still in force, subordinates the consul's action to the laws of the country to which he is sent.” Mr. Hay, Sec. of State, to Mr. White, chargé at London, No. 1109, Jan. 15, 1903, For. Rel. 1903, 487. The quotation made above, which refers to par. 409, Consular Regulations of 1896, is given from the text of Mr. Hay's instruction, which does not follow the precise language of the Regulations. Consuls can not intervene as of right in the administration of a decedent's estate, except by way of surveillance. Cushing, At. Gen., 1856, 8 Op. 98. A provision in a treaty that a consul may ex-officio administer upon the estates of citizens of his nationality dying within his jurisdiction without legal heirs there, gives no right of reclamation against the United States for the value of the property of such a decedent improperly administered on by a State court, the consul having omitted to avail himself of legal remedies to obtain possession of the goods. Black, At. Gen., 1859, 9 Op. 383. 8. Neither under the law of nations, nor the laws of the United States, nor any treaty with the King of Sweden and Norway, can the consul of the latter take from an administrator the succession of a Swede, opened in this State, in which, though not domiciled, the deceased has left property. Succession of Thompson, 9 A. 96. 9. Such a right would be incompatible with the sovereignty of the State, whose jurisdiction extends over the property of foreigners, as well as that of citizens found within its limits. C. C. 9; Ib. Constitution, II. (c), 1, No. 4. Hennen's Louisiana Digest, ed. 1861, p. 13. A foreign consul in the United States has authority to receive the distributive shares to which persons residing in his country are entitled from the estate of a person dying in the United States. In re Tartaglio's Estate, 12 Misc. 245, 33 N. Y. S. 1121. Article VIII. of the consular convention between the United States and the German Empire of December 11, 1871, authorizing consuls to act as the "legal representatives" of their absent countrymen in certain cases, does not authorize a consul to sue in the capacity of administrator to recover wages due to a deceased countryman, unless he represents heirs who are entitled to the money and who are also his countrymen. The Gen. McPherson, 100 Fed. Rep. 860. Under article 44 of the alien law in force in Cuba the consul of an intestate alien is entitled to intervene and administer the estate, subject to certain exceptions. Griggs, At. Gen., April 26, 1900, 23 Op. 93. Julius Saposnik, a Russian subject, died at Cambridge, Mass., in 1902, leaving personal property to be administered there. He had at the time of his death a wife and three minor children in Russia; he left no heirs at law or next of kin in the United States. The Russian vice-consul at Boston applied to the probate court to be appointed administrator of his estate, but the court dismissed the petition and granted letters to the public administrator. From this decision an appeal was taken to the supreme judicial court. This court, Lathrop, J., delivering the opinion, reversed the judgment of the probate court. By Art. VIII. of the treaty between the United States and Russia of 1832, it is stipulated that consular officers "shall enjoy the same privileges and powers of the most favored nations.” The treaty between the United States and the Argentine Republic of 1853 (Art. IX.) gives to consular officers the right to intervene in the administration of the intestate estates of their deceased countrymen. A similar clause may be found in Art. VIII. of the treaty between the United States and Costa Rica of 1851, as well as in other treaties. The supreme judicial court (disapproving Lanfear . Ritchie, 9 La. Ann. 96; and approving Estate of Tartaglio, 12 N. Y. Misc. 245, and In re Fattosini, 33 id. 18) held that these stipulations were within the treaty-making power; that the vice-consul therefore had a right to administer on the estate; and that, as he had applied for letters of administration, and had thus submitted himself to the court, he should be required to give bond and to conduct himself in other respects as would any other administrator. Wyman . McEvoy (1906), Supreme Judicial Court of Massachusetts. I am indebted for an advance report of this interesting decision to Frederic R. Coudert, esq., of the New York bar, who was of counsel for the Russian vice-consul. The decision has since been published in the New York Law Journal of April 16, 1906. 7. REPRESENTATION OF PRIVATE INTERESTS. § 723. The services of American consular officers cannot be claimed by citizens of the United States for the transaction of private business. Consular officers are at liberty to lend their services in such matters not conflicting with their consular duties; but in such cases they act as the private agents of their employers and not as representatives of the Department of State; their services are personal and not official, and they are entitled to proper compensation, which is a matter of private arrangement. Mr. Cadwalader, Assist. Sec. of State, to Mr. Davis, March 11, 1875, 107 "It is no part of the duty of diplomatic or consular officers to attend to "United States consuls in foreign countries, and especially in the East (China and Japan), are allowed and instructed to act for citizens of the United States in regard to their private matters, and to give them advice as to the settlement of controversies between themselves or between them and the citizens or subjects of any other government residing in the country of the consul's official residence, when called upon to do so by such American citizens, and when a consular officer can do this without prejudice to the due discharge of his official duties. The paragraphs of the regulations to which you refer are simply intended to impress upon the consul more earnestly his obligations to his countrymen in this regard." Mr. Davis, Asst. Sec. of State, to Mr. Weiller, Feb. 20, 1884, 150 MS. "In reply to the suggestion contained in yours of the 13th instant, that instructions be made to consuls regarding inquiries on the financial standing of foreign individuals and firms, I would say that such a matter does not come within the proper functions of the Department. While endeavoring to meet all demands made upon it in the interest of manufacturers and merchants of the United States, it could not undertake to give the information you ask for, nor could it impose such a task upon consuls without injury to the public service. To pass upon the solvency of a firm or an individual is, under any circumstances, a matter of great difficulty, involving many delicate considerations, which it is impossible for a consul, having so many other duties incident to his office, to duly weigh and so to arrive at a conclusion that will be just to the person making the inquiry as to the firm or individual in question." Mr. Porter, Acting Sec. of State, to Messrs. Stearns & Co., Jan. 19, 1886, 158 MS. Dom. Let. 492. 8. ABSTENTION FROM POLITICS. § 724. Interference by a consul of the United States in the political affairs of the country of his residence will be a sufficient ground for his recall. Mr. Forsyth, Sec. of State, to Mr. Hunter, Nov. 16, 1836, MS. Inst. Brazil, XV. 32. 66 When the British forces attacked Canton in 1856, the American flag was displayed in the fight in the city. According to one report, it was borne by the American consul at Hongkong, who had left his post and accompanied the British forces. The American commissioner to China was directed to ascertain whether the consul had been guilty of such a rash and ill-advised step." A letter was also enclosed to the commissioner, removing the consul from office in case it should be found "that he bore the American flag upon the walls or within the city of Canton, at the time the British made their attack upon it, or that he had any agency in displaying our flag on that occasion," or if it should be found that he was "then at Canton, and took a part in the military operations upon or in the city." Mr. Marcy, Sec. of State, to Mr. Parker, commissioner to China, No. 9, "It is a standing instruction to United States consuls abroad to abstain from interference in the political affairs of the countries where they reside." Mr. Cass, Sec. of State, to Mr. Bertinatti, Italian min., Nov. 16, 1859, MS. One Tobiaz, a reactionary chief in Mexico, having exacted a fine from Mr. Blake, who was acting as a consular agent under Mr. Hantus, United States consul at Manzanillo, Mexico, Mr. Hantus arranged a meeting with Tobiaz and entered into an understanding with him that Mr. Blake should be accredited to his, "Tobiaz's, dominions, as an exequatur from President Juarez he should never recognize in his territories." Mr. Hantus, in reporting his action. stated that this arrangement, which was "flattering to the vanity" of Tobiaz, he considered very "cheap" and "willingly accepted," and |