and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports.

A consul is not such a public minister as to be entitled to the privileges appertaining to that character, nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe-conduct, but he is not entitled to the jus gentium. Vattel thinks (a) that his functions require that he should be independent of the ordinary criminal jurisdiction of the country, and that he ought not to be molested, unless he violates the law of nations by some enormous crime; and that, if guilty of any crime, he ought to be sent home to be punished. (b) But no such immunities have been conferred on consuls by the modern practice of nations; and it may be considered as settled law, that consuls do not enjoy the protection of the law of nations, any more than other persons who enter the country under a safe-conduct. In civil and criminal cases they are equally subject to the laws of the country in which they reside. (c) The same doctrine, declared by the public *jurists, has been frequently laid down in the *45 English and American courts of justice. (d) It seems, however, from some decisions in France, mentioned by Mr. Warden, (e) that foreign consuls cannot be prosecuted before a French tribunal, for acts done by them in France, by order of their government, and with the authorization of the French government, and that, in general, a consul cannot be prosecuted

(a) B 2, c. 2, sec. 34.

(b) De Steck, Essai sur les Consuls, sec. 7, p. 62, Berlin, 1790, draws the same conclusion, from the commercial treaties in Europe since 1664.

(c) Wicquefort's L'Amb. b. 1, c. 5. Bynk. de Foro Legat. c. 10. Martens's Summ. b. 4, c. 3, sec. 8. Beawes's L. M. vol. i. tit. Consuls. Barbuit's case, Talbot's Cases, 281. Valin's Ord. vol. i. liv. 1, tit. 9, de Consuls. Pardessus, Droit Commercial, tom. iv. 148, 183. Opinions of the Attorneys-General of the United States, vol. i. 45, 302. Washington, 1841.

(d) Viveash v. Becker, Maule & Selw. 284. United States v. Ravara, 2 Dallas, 297.

106.

Clarke v. Cretico, 1 Taunt. Rep.
The Commonwealth v. Kosloff,

5 Serg. & Rawle, 545. De La Foret's case, 2 Nott & M'Cord, 217. (e) On Consuls, pp. 108-116.

1 A foreign consul's exemption from suit in a state court, is a privilege which he can neither waive nor renounce. Valarino v. Thompson, 3 Seld. 576. Griffin v. Dominguez, 2 Duer, 656.

without the previous consent of his government. Consular privileges are much less extensive in Christian than in Mahometan countries. In the latter they cannot be imprisoned for any cause whatever, except by demanding justice against them of the Porte, (a) and they partake very considerably of the character and importance of resident ministers. They are diplomatic agents, under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognizes in relation to the foreign ministers resident at Constantinople. (b) By treaty, an entire immunity is usually given to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties. (c)

(a) 1 Chitty, 71.

(b) Calliere, de la Manière de Negocier avec les Souverains, part i. p. 94, London, edit. 1750. The whole Frank quarter of Smyrna is at this day under the jurisdiction of European consuls, and all matters touching the rights of foreign residents fall under the exclusive cognizance of the respective consuls. So the consuls of Barcelona, in the middle ages, were clothed with many of the functions of modern resident ministers. In the negotiations of the American minister, Mr. Cushing, with the Chinese government, in 1844, the former observed, that in the intercourse between Christian and Mahometan States, the Christian foreigner was exempted from the jurisdiction of the local authorities, and subjected to the jurisdiction of the minister, consul, or other authorities of his own government. It was observed, in the report of the Secretary of State, in 1846, already referred to, that by treaties of the United States with Turkey and China, offences committed by American citizens in those countries, were to be tried and punished by the consuls; and the governments of the countries, when required, were to afford and to enforce consular decisions.'

(c) Shaler's Sketches of Algiers, pp. 39, 307. By the treaty of amity and commerce between the United States and the Sultan of Muscat, in Arabia, ratified on the 30th of June, 1834, American consuls may be appointed to reside in the ports of the Sultan, where the principal commerce is carried on, (and which, of course, may include ports on the African coast and in the Island of Zanzibar, within the domains of the Sultan.) Such consuls are to be exclusive judges of all disputes in suits wherein American citizens shall be engaged with each other, and to receive the property of American citizens dying within his dominions; and the persons and property of the consuls and of their households, are to be inviolate. The consular establishment of the United States is very imperfect, and especially in relation to the countries in the East Indian regions. The claims of commerce, as well as the character of the United States, would seem to require that the functions of consuls, and the provision for

1 The status of consuls, by the law of nations, is clearly defined in an opinion by the late Attorney-General. Opin. of Attys-Gen. vol. vii. 342. The same paper contains a discussion of the validity of marriages performed by American consuls in foreign states. The subject is further examined in the same volume, p. 18. By the stat. 12 & 13 Vict. c. 68, valid marriages may be solemnized under the sanction of British consular officers.

Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the constitution of the United States, which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers; and the federal jurisdiction is understood to be exclusive of the state courts. (a)

their support, should be better regulated, and that they ought not to be left to the necessity of making their consular duties subsidiary to their business as merchants and factors. See a valuable plan in relation to consular establishments in the countries east of the Cape of Good Hope, in a pamphlet entitled "Outline of a Consular Establishment for the United States of America in Eastern Asia," and which is noticed in the North American Review for October, 1838, followed by some judicious reflections on the subject.1

Consuls residing in the five free ports of China, established by the treaty of peace between Great Britain and China, in 1842, have, by the subsequent commercial treaty in 1843, between those powers, enlarged consular functions, including those which are in some respects judicial and executive.

(a) Commonwealth v. Kosloff, 5 Serg. & Rawle, 545. Hall v. Young, 3 Pickering, 80. Davis v. Packard, 7 Peters's U. S. Rep. 276. Sartori v. Hamilton, 1 Green's N. J. Rep, 107. See, also, infra, pp. 298, 304.

1 The Act to regulate the Diplomatic and Consular System of the United States was passed August 18, 1856. Its provisions, which explicitly define the functions and authority of consuls, embrace many of the important features suggested in the above and preceding notes.

LECTURE III.

OF THE DECLARATION, AND OTHER EARLY MEASURES OF A STATE OF WAR.

In the last Lecture, we considered the principal rights and duties of nations in a state of peace; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose. (a) War, to use the language of Lord Bacon, (b) is one of the highest trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and gives color to the extravagant theory of Hobbes, (c) who maintains, that the natural state of man is a state of war of all against all; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist, that continual war is the natural instinct and appetite of man in a savage state. It is doubtless true, that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and necessary result of science and civilization.

*48 * The right of self-defence is part of the law of our Self-de- nature, and it is the indispensable duty of civil society to protect its members in the enjoyment of their rights,

fence.

(a) Cic. de Off. 1, 11 and 23. Grotius, b. 1, c. 1. Burlamaqui, part 4, c. 1, sec. 4. Vattel, b. 4, c. 1.

(b) Bacon's Works, vol. iii. p. 40.

(c) Leviathan, part 1, c. 13.

both of person and property. This is the fundamental principle of the social compact. An injury, either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war. The injury may consist, not only in the direct violation of personal or political rights, but in wrongfully withholding what is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger. (a) Grotius condemns the doctrine, that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention to injure us. We ought rather to meet the anticipated danger by a diligent cultivation and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance, in case of need, by the benevolence and justice of our conduct. War is not to be resorted to without absolute necessity, nor unless peace would be more dangerous and more miserable than war itself. An injury to an individual member of a state is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party, and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part. (b) Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.

*49

*If the question of right between two powers be in any degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But, on political subjects, we cannot expect, and are not to look for the same rigorous demonstration as in the physical sciences. Policy is a science of cal

(a) Grotius, b. 2, c. 1 and 22. Rutherforth, b. 2, c. 9. Vattel, b. 3, c. 3, sec. 26, (b) Grotius, b. 2, c. 22-25. Rutherforth, b. 2, c. 9.