the archives and, to an extent, the duties of the departing consul in the hands of a consul of a third state, which should be readily permitted by the foreign state. A change in the ruler of a country does not cause a termination of the functions of a consular officer; a state of anarchy naturally requires his presence at his post, and it is doubtful whether his functions cease if his district is annexed, occupied, or conquered by another state than the one to which he is accredited. 109. Exterritoriality. Consuls with Judicial Functions.The general principles causing ex- or extra-territoriality are given by Moore as follows: "Owing to diversities in law, custom, and social habits, the citizens and subjects of nations possessing European civilization enjoy in countries of non-European civilization, chiefly in the East, an extensive exemption from the operation of the local law. This exemption is termed 'extraterritoriality.' It is generally secured by treaties and in some instances is altogether based upon them, and its exercise is usually regulated by the legislation of the countries to whose citizens or subjects the privilege belongs. Under this system jurisdiction is exercised by foreign officials, most frequently the diplomatic and consular officers, over persons of their own nationality." The power of commencing original civil and criminal proceedings is vested in consuls exclusively except in capital or very grave criminal cases or when consuls are interested as principals or witnesses. In these cases when there is no judicial court established the matter comes under the charge of the diplomatic agent. In countries not inhabited by any civilized people or recognized by any treaty with the United States, consular officers are given power by law to hear and determine civil cases where the amount does not exceed $1,000, exclusive of costs, and where the imprisonment does not exceed sixty days. Candidates for appointment to countries where consular courts and judicial powers exist are required to pass a supplementary examination in the principles of common law, the rules of evidence, and the trial of civil and criminal cases. By the creation of a United States court in China, with a federal judge, a district attorney, and other officers, and with headquarters at Shanghai, the minister and consuls in China are relieved from a great burden of duties. The consuls, however, still have original jurisdiction in minor civil and criminal cases, with right of appeal to this court. As a rule, it may be said in conclusion that by the treaties made with countries possessing a degree of civilization by which exterritoriality is granted that "the national sovereignty and law are transferred bodily onto a foreign soil and made applicable to citizens or subjects of the nationality dwelling there. Under this jurisdiction are their rights as between themselves, and as between them and the natives, and, with certain restrictions, between them and resident foreigners of other nationality."1 TOPICS AND REFERENCES 1. Historical Sketch of Consulates Stowell, "Le Consul," Introd. Oppenheim, 2d ed., vol. I, 482-5. 2. The Consul and His General Functions Stowell, "Le Consul," 15, 147. Oppenheim, 2d ed., vol. I, 490–3. Phillimore, 3d ed., vol. II, 270-286. U. S. Consular Regulations, 1896. Stowell, "Consular Cases and Opinions." 3. Classification and Precedence of Consuls Van Dyne, "Our Foreign Service," 128-133. Moore's "Digest," vol. V, 2-6, 58-60. Oppenheim, 2d ed., vol. I, 485–7. "U. S. Navy Regulations, 1913," Arts. 1117-18, 1119, 1253, 1273. 4. Granting of Exequatur-Appointment of Consuls Stowell, "Le Consul," 207-216. U. S. Consular Regulations, 1896, 12-27, and 41. Oppenheim, 2d ed., vol. I, 487–491. 5. Rights and Privileges of Consular Officers Moore's "Digest," vol. V, 32-58, 60-92. U. S. Consular Regula tions, 1896, 27-37. Oppenheim, 2d ed., vol. I, 493-9. Stowell, 1 Foster, "Practice of Diplomacy," p. 231. "Le Consul." Stowell, "Consular Cases and Opinions." Ludwig, "Consular Treaty Rights." 6. Duties of Consular Officers Stowell, "Le Consul." Stowell, "Consular Cases and Opinions." U. S. Consular Regulations. Van Dyne, "Our Foreign Service," chap. III. 7. Foreign Consular Systems Stowell, "Le Consul," Appendices B, C, and D, Bibliography. 8. Termination of Consular Functions Oppenheim, 2d ed., vol. I, 496-7. Stowell, 217-222. Moore's "Digest," vol. V, 29–32. 9. Exterritoriality and Consuls with Judicial Functions Phillimore, 3d ed., vol. II, 337-342. Moore's "Digest," vol. V, 37-40. Foster's "Practice of Diplomacy." 230-7. CHAPTER XII INTERNATIONAL AGREEMENTS. NEGOTIATIONS. CONGRESSES AND CONFERENCES 110. International Agreements. The development of modern states is accompanied by constant and increasing international intercourse, which in turn creates various international agreements differing in kind and importance. Of these, as Nys well says, the smaller portion only is devoted to the settlement of conflicts and the regulation of differences; they have become instead more pacific in their aims, with a general desire to better relations already peaceable or to create new regulations as a result of increasing intimacy of intercourse and friendship. They are largely, in fact, agreements to better accomplish worthy ends by the common effort of several or many states.1 III. Negotiations.-The negotiations of modern days are more direct and frank than those of times gone by. Diplomacy and the art of negotiation in earlier times produced a number of treatises bearing upon this subject. Whatever may have been their utility in those times, they have become largely obsolete, the experience and the knowledge of the negotiator supplanting the theoretical maxims and the lengthy dissertations that served as the instructions of the home government. Perhaps no better guide to the modern diplomatist can be found than the instructions given by the first secretary of state to Mr. Jay, to the effect that "it is the President's wish that the characteristics of an American minister should be marked on the one hand by a firmness against improper compliances, and 1 Nys, "Le Droit International," 1912, vol. II, p. 480. on the other hand by sincerity, candor, truth, and prudence, and by a horror of finesse and chicane." It might be well to add to this the words of Montague Bernard when he says that the real end of negotiating is to find a point at which the interests of both parties can be made to coincide."2 Negotiations generally begin with an oral exchange of views upon the subject under discussion between the minister of foreign affairs and the diplomatic agent of the state with whom he treats. This is generally known as the state of pourparlers. This may be followed by final exchange of notes, written and official in their character and which may settle the matter under treatment between the two states, and which communications are often known as memoranda. At other times a formal convention or treaty duly signed by the diplomatic agents may result, which settles the dispute; or a working agreement may be established of a more or less temporary character-in other words, a "modus vivendi." 112. Congresses and Conferences. A very important function is performed by the creation of a congress or conference to deal with international negotiation and the settlement of affairs. These bodies have often marked historical epochs and accomplished arrangements of the highest value, even when they mark the triumphant results of sanguinary warfare, for they establish peace and replace brute force by peaceable discussion and a final agreement. Commencing with the congress of Westphalia or, more properly speaking, of those of Münster and Osnabrück, in session from 1644-8; these were followed by the important ones of Utrecht, in 1713, of Vienna, in 1814 and 1815; of Paris, in 1856; and of Berlin, in 1878; after these came the conferences of The Hague in 1899-1907, and of London, in 1908-9, all being of world-wide importance, but marking varying historical epochs and agreements. There is a similarity in the constitution and routine of a 1 American State Papers, "Foreign Relations," 497. "Lectures on Diplomacy," Bernard, p. 150. |