Mr. Adee to Mr. Denby, chargé.

No. 869.]

Sir: I am in receipt of a dispatch, No. 1802, of the 31st of January last, from Minister Denby, in which he presents for the decision of the Department the question whether an acting consul can perform judicial functions in China.

[Page 141]

There is no such office known to our law as an acting consul and there is, of course, no authority whatever for the exercise by such person of any consular position as pointed out in your dispatch. Section 4130 of the Revised Statutes expressly limits the exercise of judicial functions conferred upon consuls by section 4083 to “persons invested with, and exercising the functions of consul-general, vice-consul-general, consul, or vice-consul.”

As bearing directly upon this matter, would call your attention to the opinion of the Attorney-General, rendered under date of May 7, 1891, in response to the following query of this Department:

Can a person placed in charge of a consular office by the incumbent of the consulate, but without appointment and qualification as pre scribed by the Constitution and laws of the United States, perforin (1) the regular official duties of the post and (2) notarial and other unofficial services?

The Attorney-General replied:

I am unable to see bow a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person cannot possibly have any virtue in him as a public officer.

As to the second question the Attorney-General held that the value of such services depends entirely on the fact that the person rendering them is a consular officer, that the United States would seem to be in duty bound to protect the public, so far as it may be reasonably expected to do so, against the exercise of even merely voluntary consular functions by persons not regularly appointed consuls, and that it therefore clearly concerns the United States that no person shall be permitted to exercise the office of consul of the United States in any way who has not been authorized by Congress to do so.

I am, etc.,

Alvey A. Adee,
Acting Secretary.