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the United States minister explanations which were 66 spontaneous, clear, circumstantial, full, and satisfactory." She therefore looked with "double surprise and regret " upon the present case, in which she had "a right to expect at least that the international principle of reciprocity would have been consulted."

Mr. Seward, May 29, replied, in a note to Mr. Asta Buruaga, that the President was not convinced that an error had been committed in the withdrawal of the exequator or in the manner in which it was done. The consul's exequator was summarily revoked "under full conviction on the part of this government that the complaints. of his violation of the neutrality laws were sustained by presumptive proof, and that to allow him to continue to exercise consular functions while pursuing such unlawful practices would involve a necessity for explanations between the government of Chile and that of the United States, which could in no case improve the friendship existing between them, and might, perhaps, result in producing a rupture of relations which would be prejudicial to both, and to the cause of all the American republics." It was, however, " an occasion of much regret " that a commercial agent of Chile "should have proved himself unworthy of the confidence reposed in him by the friendly government of the United States."

Dip. Cor. 1866, II. 375, 419, 420, 425, 428.

"By receiving consular representatives from a foreign country the United States come under no obligation of law or courtesy to allow the persons so received to retain and exercise consular functions, when, for any reason, those persons become unacceptable to this government, nor does this government come, under those circumstances, under an obligation to submit its proceedings, in revoking an exequatur, to revision by the government of a friendly nation whose commission the consul bore when the exequatur was revoked."

Mr. Seward, Sec. of State, to Baron de Wetterstedt, April 23, 1866, MS.
Notes to Sweden, VI. 174.

Janssen's case.

In 1866 Mr. Janssen, who was consul of Oldenburg at New York, was summoned to be examined as a witness in a suit pending in the supreme court of the State against himself and certain other persons, as members of a commercial partnership. By Article IX. of the treaty between the United States and Hanover of 1846, to which Oldenburg had adhered, it was expressly provided that if consuls should carry on trade they should be "subjected to the same laws and usages to which private individuals of their nation are subjected in the same place;" nor did the treaty exempt consuls from being summoned to testify. When sued, Mr. Janssen caused an appearance to be entered for himself, and made no

objection to the jurisdiction of the court, either on general grounds or on the ground that he was entitled to be proceeded against only in the Federal courts. When he was summoned to testify, however, his counsel disclosed to the court the fact of his consular character. The court then suggested that the proper course under the circumstances would be to dismiss the plaintiff's action on the ground that it should have been brought in the Federal courts, and such a motion was made. and the action was dismissed. On December 26, 1866, President Johnson issued a proclamation revoking Mr. Janssen's exequatur on the ground of his "having refused to appear in the supreme court of the State of New York to answer in a suit there pending against himself and others on the plea that he is a consular officer of Oldenburg, thus seeking to use his official position to defeat the ends of justice." On the strength of the various decisions to the effect that the consul's privilege from suit in the State courts was official and could not be waived by him, an application was made by counsel for Mr. Janssen for the withdrawal of the proclamation. This question was referred to Mr. E. Peshine Smith, examiner of claims of the Department of State, who advised that the proclamation be not recalled. Mr. Smith said that the words "refused to appear to answer," in the proclamation, were descriptive of the refusal to appear as a witness as well as of a refusal to appear as a party; that, if Mr. Janssen had chosen to decline to appear as a party in a State court, no offense could have been taken; that the real offense imputed to him was his refusal to appear and answer as a witness; that it was in the proceedings in relation to his summons as a witness that his consular position was disclosed, and that it was really in consequence of this that the proceeding was dismissed. Mr. Smith further said: "This government instructs its consular officers, even where, as in France, there is a treaty stipulation, that they shall not be compelled to appear as witnesses before the courts; that it is nevertheless their duty, on invitation, to appear and give their testimony unless necessarily prevented; that they have no right on account of their official position, or disinclination, or personal inconveniences, to refuse compliance with such invitation, and that a refusal without good cause therefor will be regarded as an act of disrespect toward the government within whose jurisdiction the consul resides, and as a sufficient reason for his removal. (Consular Manual, sections 639 and 641.) The United States expect from the consular officers of foreign powers the same respect for the courts, and the same readiness to contribute their testimony when invoked in the administration of justice, which we enjoin upon our own officers. Especially is this expected from consuls engaged in commerce, as was Mr. Janssen. The fact that Mr. Janssen was himself a defendant in the action in no way diminished his obligation to appear as a witness. On the contrary, his voluntary

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appearance as a party, when he might have declined to appear, might well be regarded as a formal intimation of his willingness to do what anyone else would be bound to do in similar circumstances, and what he would not be permitted to refuse in a suit against any other person. 'I think, therefore, the revocation of Mr. Janssen's exequatur was rightful and ought not to be annulled."

Report of Mr. Seward, Sec. of State, to the President, March 28, 1867,
accompanying the message of President Johnson to the Senate of
March 28, 1867, S. Ex. Doc. No. 1, special session of the Senate, 6,
36, 38.

That a consul of Hanover engaged in trade at San Francisco is not en-
titled to exemption from testifying in a San Francisco court, see Mr.
Seward, Sec. of State, to Judge Hoffman, July 22, 1862, 57 MS.
Dom. Let. 509.

The Paraguayan government canceled its recognition of Mr. Usher, consular agent of the United States at Asuncion, on Usher's case. the ground that he had taken part in political differences in the country, and had used his abode or place of business at Villa Rica as an asylum for persons hostile to the government, and had hoisted the flag of the United States over the building as an emblem of his authority. The Department of State said that if Mr. Usher was guilty of the things charged, the action of the Paraguayan government could not be complained of; but that he denied the truth of the charges. The Department of state, however, did not undertake to determine this question of fact, but based its decision on other grounds. It appeared that Mr. Usher was appointed as consular agent at Asuncion and was so recognized by the Paraguayan government. His right, therefore, to display the flag of the United States, if such a right existed, was limited to Asuncion, and did not accompany him to other parts of Paraguay. By assuming to exercise it at the remote point of Villa Rica, especially in the state of affairs then existing, he plainly went beyond the bounds of his authority, and his action in “exercising an important political attribute of that character" there was not justified, and the United States could not “ find fault with the Paraguayan government at its correcting his mistake by canceling his recognition as consular agent at Asuncion."

Mr. Fish, Sec. of State, to Mr. Stevens, June 23, 1873, MS. Inst. Paraguay, I. 163.

The exequatur of the Pontifical consul at New York appointed prior to 1871 will not be canceled on the sole ground of the absorption of the Pope's temporal power in that of Italy.

Mr. Fish, Sec. of State, to Baron Blanc, July 18, 1876, MS. Notes to
Italy, VII. 306.

The action of a foreign consul, in assuming to decide the question of the guilt or innocence of one of his countrymen who was charged with being a fugitive from justice, and in extorting from him the alleged proceeds of his criminality by groundless threats of criminal prosecutions, is a ground for invoking the consul's exequatur.

Mr. Frelinghuysen, Sec. of State, to Mr. de Bille, Danish min., April 2 and April 14, 1883, MS. Notes to Denmark, VII. 141, 143.

Braida's case.

"I have to acknowledge the receipt of your dispatch dated May 28 last, in which you recite a conversation had by you on the 21st of May with the President of Nicaragua relative to the restoration of Mr. Sigmund C. Braida to his office as consul of the United States at San Juan del Norte, in the conduct of which he was suspended some weeks ago in consequence of the withdrawal of his exequatur by the Nicaraguan government.

"The President informed you that he had temporarily restored Mr. Braida's exequatur; but you replied that at the time of Mr. Braida's removal from office' you had appointed' Dr. Henry De Soto consul in his stead, that the Nicaraguan government had recognized Dr. De Soto as such consul, and that Mr. Braida could not be restored to the office without first procuring Dr. De Soto's resignation, which step you did not regard as advisable until and unless Mr. Braida's permanent restoration should be assented to.

"The withdrawal of Mr. Braida's exequatur did not operate as a removal from office, but only as a suspension of his authority to perform the duties thereof. No vacancy was thereby created which required filling by the appointment of another person; and, furthermore, a minister has no authority to appoint a consul. The President of the United States alone is authorized to appoint a consul, and then by and with the advice and consent of the Senate. Your authority extended only to the temporary installation of an unofficial person to preserve the consular archives and to perform such duties as in the emergency he might lawfully undertake without authorization according to law. Your action in designating Dr. De Soto to act in Mr. Braida's stead, and in obtaining local permission for him so to act, was in legal effect nothing more than appointment of a custodian of the consulate and archives during the suspension of the regularly appointed officer. The restoration of Mr. Braida's exequatur, therefore, whether temporary or permanent, would operate as a rehabilitation of his suspended authority to perform consular functions and qualify him to supersede Mr. De Soto in the custody of the office, without the formality of a resignation or other express determination of Mr. De Soto's connection therewith.

"You are therefore instructed to assent to the President's offer to restore Mr. Braida's exequatur, and to permit him to resume charge of the office."

Mr. Uhl, Acting Sec. of State, to Mr. Baker, min. to Nicaragua, June 14, 1894, For. Rel. 1894, 479.

Señor Madriz, Nicaraguan minister of foreign affairs, admitted to Mr. Baker that Señor Lacayo, the Nicaraguan commissioner to the Mosquito Reserve, had inconsiderately recommended the withdrawal of Mr. Braida's exequatur, on suspicion that he had used his influence to prevent the abdication of the Mosquito Government. (For. Rel. 1894, App. I. 288.)

See, also, For. Rel. 1894, App. I. 298, 300 et seq.

As to the withdrawal and restoration of the exequatur of Mr. Bingham,
British consul at San Juan del Norte, see id. 297.

July 29, 1897, the minister of foreign affairs of Guatemala informed the legation of the United States that the President of the Repubile had on the preceding day ordered the withdrawal of the exequatur of Mr. Florentin Souza, United States consular agent at Champerico. The legation, being entirely without previous advices on the subject, asked to be acquainted with the reason for the government's action, but stated that another person would be placed in charge of the consular agency for the present. Mr. Souza disclaimed any knowledge as to the cause of the government's action. The course of the legation was approved; but with reference to its request for the reasons for the withdrawal of the exequatur, the Department of State said: "You were not strictly in your right in making this request. As a general rule of international intercourse, a government can withdraw a consular exequatur without assigning any reason. If it voluntarily assigns cause for removal, it invites discussion of the sufficiency thereof, and defensive evidence can be offered with a request for reconsideration. If it offers no reasons, it can not be compelled to give them. Your inquiry, therefore, should be treated as a request for information rather than as a demand for proof of good cause, and it is hoped the Guatemalan government will so construe it.”

Mr. Sherman, Sec. of State, to Mr. Pringle, chargé, Aug. 18, 1897, For.
Rel. 1897, 338.

A request having been made that the government of the United States revoke the exequatur of the Italian consul-general at New York, because of his refusal to certify to the official character of a notary public, the Department of State said: "In view of the fact that it has been held by the Attorney-General of the United States that an American consul is not required to certify to the official character and acts of a foreign notary public, the Department is

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