The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-26

Enportant Circular Upon the Rights OF United
states ConsuIs and Commercial Agents.

Important Circular Upon the Rights or United
States ConsuIs aud Commercial Agents.
DEPARTMENT OF STATE,
WASHINGTON, Nov. IL, 1854.
ErR-You will receive herewith, for your informa
tisn and guidance, an opinion given at the request
sisn BY Hon. c. Cushing, Attorney General Of the
Units States, on the law ofmarriage 80 far as it
lases to its celebration by United States officers aud
more especially cousuls, and treating incidentally
Of the nature Of the consular office and the duties
am sir, respectfully, your obedient servant,
w. l.. MARCY.
OPINION OF THE ATTORNEY GENERAL.
ATTORNEY GENERALS OFFICE, Nov. 4, 1854.
SIR-YoW communication of the Sd last. states
that il is the practice to extent, of the con-
sUs Of the United States abroad 20 marry parties,
either citizens Of the United States or not and this
without Observance Of the laws OF the particular
place regarding marriage, ard suggests the in-
qniry whether such marriages are valid In the
Unitsd States, either as to the persona status OF
the pa,tes themselves and their ISSUE or as u any
II tho rights of property depending on the matfi
This ,ngniIy belongs to international Law private,
rs distinguished from international law public;
that is TO say, it regards not the reat 'ns Of atoms
10 the laws civil or criminal Of diferen. nations.
SFGlix, DR.. lot. Prive, tit. prel)
The different States of Christendom are combined,
by religious faith, by ciyiiz by s,ien and
Art, by conventions and BY usages or ideas of rign
having the moral force OF law, into community Of
nations, each politically sovereign aud independent
81 the other, but all admitting much inseraha
Of legal rights or duties. (vatsel Droit dss Gems,
Pref. B. IL; Wneason's Elements, p. 40; G arden,
Csce dip. &c Europe, tom. !, int p. 80
As bet geen themselves, the general rule OF public
law Is that each iudepend.nt State Is sovereign in
itself, aud has more less complete jurisdiction
All persons being. matters happening, contrac;
made, or acts done, within its own territory
SKlaher, Dsois des Gems, g. 81 and pa's'm; Story
COlhict OF Laws, oh. 2o
] say more or less complete, because, although
each ration possesses its territory as its own AMI
exercises jurisdiction WITHIN itself, not only as ID
peons, whether subjects Foreigners, their acts and
ths propsr tberein and in general ne her claims
fssf comedies TO others, exts rnl jurisdiction,
yet each yields TO the other certain recpro ,al rights
within itself, which are somstimes denomina;sd by
law Of nations.-( Martens, Precis. g. 49,
These privilegea servitudes, or easements Of pub
nc law have grown up either by express convention,
shall, the Exchange, vii Cranch, p. 1869 Among
1oem are the effect which, in certain cases, one
state concede, TO the laws of another in regard to
contracts made in the latter, and the re ,iprocal
rights conceded Of personal residence or commercial
iterc0urse and Of the interchange Of ministers and
consns, which con ,essions modify to certain de-
gree the hypothetical completeness Of the internal
sovereignty of each nation.
Hence, in all the discussions Of private intsrra-
60nal right, the fundamental and allpsrvading dis
function between the statute personal the laws of
ones own proper domicil, and the statute real, or
the laws which are Independent of the person. and
which regulate in foreign country his acts or in.
forests irrespective Of his domicil. The personal
statute is transitory, and follows the person the
real statute is chiefly confined to things which it
controls only in the locus rei ste, the given ter
ritory. (Dalloz Dic Juris. s. v. Loi Pers.; Proud
hon, Des Personnes, tom. l, p. S.)
To the regular jurisdiction, however, of eaah
country over persons, things, and acts, being or
done within 1t, there exist by received public law,
certain absolute exceptions These exceptions are
the several cases Of exterritorislity: that is the
various con ditons in which person, though abroad,
Is exempt from the foreign jurisdiction, and Is
deemed to be still within the territory and urisdic
ton Of his own country.
The doctrine Of exterritoriality Is denounced by
some speculative pubicists as ii it were mere
fiction Of law. (See Pin5eiro Ferr ezra, Droit Pub
Me- tom. 2, r. 1919 This view Of the matter is su.
perhcih, for 1t is Only cavil as to the name; aud
erroneous, because 1t argues upon the name, and
not the thing which it represents.
The word exterritoriality" is sufficiently
definite technical designation for the popularity of
legal condition already defined attaching t. GER
tam peIst Ms in foreign country, to wit the case
OF AL acual sovereign Of an Independent State, his
perBfn sose residence and furniture, while he re-
ei6es OF sojourns peaceably in foreign couasry;
foTeign army, whether in peace or war; ship Of
war generally, and sometimes merchant shit 10 a
Foreign port, and either of them the high in
MI circumstaS cess ard foreign am )as sldos.
(Nleaton's e., p 1897
In all these cases, AID expressly in that Of fo..
kJgD ministers, the privilege OF eXttrfItOtltl
extends to tn, resids5ce as well as the person Of
the foreign minister, aad to certain legal acts per
fornei in bis presence. (Vattel, 8, ch. Z, s, 81
KlubeJ, 8. 204; Martens. Precis, IL, CD. 5; Folk,
Gy2, TIT. 2 CHI. 2 $. Al Oh. DE Martens, Guide Diplo
natique, CHI. 81
Such are The rights of an ambassaio, or other
foreign minister. But, although co'suls are not
merely commercial agents, as many autho.s assert,
f. Legst p. los. Wldman's Institutes, p. 1G5); a1d
although they undoubtedly have certain Of the qua
Ht'es and some Of the rights of foreigo minister
fsee De Cussy, Reglements Consnlaires, sec. y;
still il is undeuiable that they do not enjoy tha
privileges Of exterIitoriality, according to the
rules OF public law received In the United yates.
1Ca VS.. Cretico, !. Taunton, LOG; The Anna, iii.
Wheaton, 446; United States vs. Rsvara ii. Dallas
297; Viveash vs. Becker, ill. Manle and Sell
2s4; Bsrbuit's case, Gases Temp. Taboo, 2sl; Com
nonwealth vs. Kestoff, serg. r., 545; Darand
Va. Haloack. Miles. 46; Davis vs. Packard vii
Peters, $780, s. c., vi wend, s27; S. c., weua
SO; Flynn Slouehton, Barb s. c. r.. lis; State
vs.. De "a Foret, ii Nett NJ, 2l7; Manpha'd d. vs.
Soders.rom, Bin, l3s; Hall Young iii Pick, 50;
EaTtori W. Hamilton, Green's r., 1919
In all the a6judged above cited il Is either
expressly ruled, or the point presented assumes,
that the coDsus subject TO the local jurisdiction
The same doctrine Is recognized il the modero Law
States or ~ Great Britain [Wheaton's clements, P.
1893; Kent's Con-. VOL. !, p. 4s; Wildmaa's / ISL,
volt p. $50; Flynns Brit Consnls, Oh. 81
Notwit standing the somewhat vague specala-
on the question whether cousuls are quasi minis
tiers or no., (Vattei, Drot des Gems, ]. H., en-.
8; De Cusy Reglemsnts CDnsolairss, sec. 6; Mo-
reuil, Agents Consualres, p. 3is; Borel Des Con-
suls, Oh. 81; it is now fully established by judicial
decisions on tee c)ntinent, and by the opoions Of
the best modern authorities there, that consus 90
not enjoy the diplomatic privileges accorded to the
ministers Of foreign powers; thai In their personal
affairs they justicisble By the local tribunals for
offences and subject 20 tho recourse Of execu-
Zion as other resilient foreigners and that they cam
NOT pretend to the same personal invioabity and ex
omption from jurisdiction foreign ministers ENVY
by TIE law OF nations. (F9lx, j. ii, I'll. 2, c1ap. B.
"a; Dsioz, Die. de Jurispr., tit. Agents Diplont
nqnes, 10. 80; ca. de Martens, Guide Diploma,
8.S2)
In truth, sl the obscurity and contradiction to
ahis point IN different authors arise from the fact
shat consuls do unqueston soy joy certain privi
leges Of exemption from local pllitcal obligation;
hut sill these privileges are iinise3 and fall vsy