Mr. Seward to Mr. Adams.
Sir: It has become necessary to revise our customary form of exequatur for consuls, and it is desired that you make proper explanations on the subject to Earl Russell.
The only treaty stipulations concerning consular privileges between the United States and Great Britain are the following:
Article 16 of the treaty of November 19, 1794, which, however, is not now in force, having been abrogated by the war of 1812, stipulates that “It shall be free for the two contracting parties respectively to appoint consuls for the protection of trade, to reside in the dominions and territories aforesaid; and the said consuls shall enjoy those liberties and rights which belong to them by reason of their function. But before any consul shall act as such, he shall be in the usual forms approved and admitted by the party to whom he is sent; and it is hereby declared to be lawful and proper that, in case of illegal or improper conduct towards the laws or government, a consul may either be punished according to law, if the laws will reach the case, or be dismissed, or even sent back, the offended government assigning to the other their reasons for the same.
“Either of the parties may except from the residence of consuls such particular places as such party shall judge proper to be so excepted.”
These stipulations, with an immaterial change of phraseology, were reaffirmed in article 4 of the commercial convention of July 3, 1815, which expired by limitation in the year 1828, but was renewed by the convention of the 6th of August, 1827.
In the year 1790 the first appointment of a British consul was made within the United States, and his exequatur was issued by President Washington in the following words: [Page 209]
GEORGE WASHINGTON,
PRESIDENT OF THE UNITED STATES OF AMERICA.
To all whom it may concern:
Thomas MacDonogh, esq., having produced to me his commission as consul from his Britannic Majesty within the States of Massachusetts Bay, Rhode Island, Connecticut, and New Hampshire, I do hereby recognize him as such, and declare him free to exercise within the said States of Massachusetts Bay, Rhode Island, Connecticut, and New Hampshire such functions and powers as may be given or permitted by the laws of the land to the consuls of nations between whom and the United States no treaty or convention exists for permitting specific powers and functions to be exercised by their consuls reciprocally.
In testimony whereof, I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed.
Given under my hand, at the city of Philadelphia, the 2d day of December, in the year of our Lord 1790, and of the independence of the United States of America the fifteenth.[l. s.]
GO. WASHINGTON.
By the President: Th. Jefferson.
This form of exequatur continued to be used whenever application was made for the recognition of British consuls till 1816, when the following form was adopted:
JAMES MADISON,
PRESIDENT OF THE UNITED STATES OF AMERICA.
To all whom it may concern:
Anthony St. John Baker, esq., having produced to me his commission as consul general of his Britannic Majesty within the United States, I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to the consuls general of such friendly powers between whom and the United States there is no particular agreement for the regulation of the consular functions.
In testimony whereof, &c., &c.
In 1819 a form of exequatur was adopted in the case of Mr. William Gray, consul of his Britannic Majesty for the State of Virginia, expressed as follows:
JAMES MONROE,
PRESIDENT OF THE UNITED STATES OF AMERICA.
To all whom it may concern :
William Gray, esq., having produced to me his commission as consul of his Britannic Majesty for the State of Virginia, to reside at Norfolk, I do hereby recognize him as such, and declare him free to exercise and enjoy such functions, powers, and privileges as are allowed to consuls of the most favored nations in the United States.
In testimony whereof, I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed.
[Page 210]Given under my hand, at the city of Washington, the 6th day of May, in the year of our Lord 1819, and of the independence of the United States of America the forty-third.[l. s.]
JAMES MONROE.
By the President: John Quincy Adams, Secretary of State.
On the 3d of March, 1821, the form of 1816, before quoted, was restored, and continued to be used until December of the same year, when the form of 1819 was resumed, and has been retained ever since from the mere force of clerical habit or custom. The same form has been habitually used for exequaturs to consuls of all other nations. This form is without any authority of municipal law, and it has been used inadvertently without any reference to the stipulations contained in our conventions concerning consular privileges, which were not in fact negotiated till long after its first adoption.
In the mean while, though the treaty stipulations between the United States and Great Britain in regard to the exercise of consular functions have remained unchanged, conventions and treaties have been negotiated with several maritime powers, specially defining the rights and functions of consuls, and greatly extending their jurisdiction. Agreements have thus been made concerning salvage, the settlement of intestate estates, the inviolability of the consular offices and archives; the arrest, safe-keeping, and delivery up of deserters and mutineers, taxation, exemption from military billetings, &c.; while this has been done, British consuls, and consuls of other states with whom no such stipulations exist, have been led by our inadvertent use of the form of exequatur, adopted in 1819, to believe that they also could enjoy special and peculiar advantages, which were accorded under distinct stipulations, to the powers with which we have such special consular treaties, as I have above named.
At the same time, consuls of the United States, residing in countries with whom we have no special consular stipulations, of course, have neither had, nor claimed, nor could they claim, any such special advantages. Their jurisdiction and powers have received no enlargement.
Hereafter, in the case of new consular appointments, the form of exequatur will be such as is adapted to our treaty stipulations with each nation respectively. In the case of British consuls the form of 1816 will be adopted. All existing exequaturs will be continued, but will be continued with the same limitations, and if it is desired, the exequaturs which heretofore have been given may be returned and cancelled, whereupon new ones with accurate annotations will be issued.
Should Great Britain desire to negotiate for a reciprocity of special consular-privileges, the United States will cheerfully accede.
I have further to remark, that in conveying to you the instructions of the President upon this subject, he is influenced by a desire to remove all possible occasion for embarrassment hereafter, which might arise from a want of clearness and precision in defining the limits of consular jurisdiction. Similar instructions will be given to all our ministers, residing near the governments of countries with which we have no treaties or conventions in regard to consular powers; and an opportunity will be afforded to each of them to enter into treaty stipulations with the United States upon this subject.
I am, sir, your obedient servant,
Charles Francis Adams, Esq., &c., &c., &c.