ments had given complete immunity from civil arrest; this only granted immunity from preliminary civil arrest. Conventions with Roumania, 1881 (Art. III); Servia, 1881 (Art. III); Congo, 1891 (Art. V); and Greece, 1902 (Art. III), followed this model. There was a reversion to the older form in the Spanish treaty of friendship and general relations of 1902 (Art. XV), in which there was accorded personal immunity from arrest or imprisonment, except for acts qualified as crimes or misdemeanors by the laws of the country where the consul was stationed. In the latest expression of the immunity from arrest, that in the consular convention with Sweden, 1910 (Art. III), the form used in the Belgian treaty of 1868 was followed.

In 1899 the American consul general at Frankfort-on-the-Main was served with a subpoena to appear as a witness in a case then pending before the royal court. The subpoena contained the clause:

Witnesses who do not appear without sufficient excuse are to be sentenced, according to paragraph 50 of the Penal Code, to pay the costs occasioned by such non-appearance, also to a fine not to exceed 300 marks; and if this is not paid, to imprisonment not to exceed six weeks-producing them by arrest is also admissible.

The consul general protested vigorously against the threat of arrest, but notified the court that he was willing to appear if properly summoned. The matter was taken up by the Department of State, and in the course of the negotiations it was shown that, in spite of the fact that the consular offices were inviolable, the consul was threatened with arrest and imprisonment outside of his office in case he failed to obey the summons, the only other alternative being that the consul remain constantly in his office. A satisfactory conclusion of the affair was reached when the German officials apologized for their mistake in sending out the subpoena in the usual form, and politely requested the presence of the consul general in court.46

PUNISHMENT OF CONSULS

A few treaties have expressly provided that consuls may be punished according to the laws of the accrediting state for offences against those laws. Thus the treaty of amity, commerce, and navigation with Great Britain in 1794 provided that when a consul committed an offence against the laws or government of the nation of his residence, he might be punished according to the laws of that nation, if there was a law applying to the case, or be dismissed, or sent back to the appointing state; the only condition being that the offended government should assign to the other the reasons for its action (Art. XVI).

Though the identical phraseology was not adopted, the same provision was made in commercial treaties with Great Britain in 1815 (Art. IV), 47 Sweden 45 Moore, Digest, V: 81.

47 This provision was applied in the case of the United States consul general at Montreal in 1863. Moore, Digest, V: 70.

and Norway in 1816 (Art. V), and 1827 (Art. XIII), Greece in 1837 (Art. XII), Portugal in 1840 (Art. X), Switzerland in 1850 (Art. VII), and Orange Free State in 1871 (Art. V).50 The only other provision on this subject was contained in the treaty with Muscat (adopted in 1886 by Zanzibar, Art. II) in which it was stated that if a consul should commit any offense against the laws of that kingdom, complaint should be made to the president, who would immediately replace the offending officer (Art. IX).

It is interesting in this connection to note that this provision has never appeared in any consular convention; on the other hand, in many of these conventions, there has been substituted for it the consular exemption from arrest.

MISCELLANEOUS PROVISIONS

In addition to those familiar immunities which occur in several treaties, there are a few which have appeared in only one or two of the earlier treaties. These have disappeared, not, as a usual thing, because they were lost, but because their insertion had become unnecessary due to the development of a more liberal spirit in international relations. The first of these early provisions was contained in a treaty of peace and amity with Algiers in 1795, where the statement was:

The consul of the United States of North America shall have every personal security given him and his household. He shall have liberty to exercise his religion in his own house. All slaves of the same religion shall not be impeded in going to said consul's house at hours of prayer. The consul shall have liberty and personal security given him to travel, wherever he pleases, within the Regency. He shall have free license to go on board any vessel lying in our roads, whenever he shall think fit. The consul shall have leave to appoint his own dragoman and broker (Art. XVII).

Should a war break out between the two nations, the consuls of the United States of North America . . . shall have leave to embark themselves and property unmolested on board of what vessel or vessels they think proper (Art. XVIII).

These provisions were carried over into treaties of peace and amity between the same two countries in 1815 and 1816 (Arts. XV and XVI). They also appeared in a treaty of peace and amity with Tripoli in 1805 (Arts. XIV and XV).

Consular immunities as expressed in the treaty with Muscat in 1833 (adopted by Zanzibar in 1886) included the exemption of all property of the consul from seizure and the immunity of all the consular household from arrest (Art. IX).

According to Article IV of the treaty of peace, amity, and commerce 48 This treaty omits mention of offences against the government.

49 Same as Portugal.

50 Same as Portugal.

entered into between the United States and China in 1844, consuls had the right to communicate with the local authorities

on terms of equality and reciprocal respect. If disrespectfully treated or aggrieved in any way by the local authorities, said officers on the one hand shall have the right to make representation of the same to the superior officers of the Chinese Government, who will see that full inquiry and strict justice be had in the premises; and on the other hand, the said consuls will carefully avoid all acts of unnecessary offence to, or collision with, the officers and people of China. 51

The exemptions given in these few cases were of special application because of conditions peculiar to the contracting countries; they have had no influence on the development of immunities in general.

SUMMARY

Summing up the consular privileges and immunities granted by treaties, it seems that the more important of these are: Inviolability of the archives and sometimes of the consulate; privilege of displaying the national insignia; exemption from military service, military billeting, public service, and certain types of taxation; the privilege of communicating with the receiving government in certain cases; and a restricted immunity from arrest. To these privileges and immunities specifically mentioned, there must be added certain general grants of exemptions and the most-favored-nation provision.

Most of these privileges and immunities are secured to consuls under the practice of the United States even where no treaty provision can be produced in their support. By treaty provisions, however, two very important exemptions, whose existence in the absence of treaty stipulations may be regarded as doubtful, have been extended as well as made more secure. The exemptions referred to are those from civil arrest and from some forms of personal taxation. Three other of the enumerated privileges exist only on a treaty basis: those of declining to appear personally as a witness (except under the provisions of the sixth amendment to the Federal Constitution), 52 of inviolability of the consulate, and of communication with the general government under certain circumstances.

51 This same idea was carried out in a treaty dealing with commercial relations between the two countries entered into in 1902 (Art. II).

62 Instructions by Mr. Hill, Sec. of State, to Mr. Hunter, Minister to Guatemala, in 1900, contain the following paragraph:

"The Department would suggest that it would be proper for you to investigate what conventional privileges Guatemala may have conceded in this respect to consuls of other countries. If there are such privileges, this government might reasonably expect, in the absence of a treaty, that they might be extended as an act of comity by Guatemala to our consular officers in that country." For. Rel. 1900, p. 705.

It is submitted that this view is not sound, being neither supported by the practice of other states, nor followed by the United States in its treatment of foreign consuls in the ́ United States.

The service of treaties in the field of consular privileges and immunities has been twofold; for their primary utility in adding new privileges and immunities is rivalled by their secondary service in making secure those privileges and immunities which might have been claimed on the basis of international law and practice.

[The manuscript of this article was prepared before the ratification on October 14, 1925, of the treaty of friendship, commerce and consular rights between Germany and the United States, signed on December 8, 1923, and consequently does not consider that treaty.]

EDITORIAL COMMENT

COMMISSIONS OF CONCILIATION AND THE LOCARNO TREATIES

From the International Commissions of Inquiry contemplated by the Hague Conventions of 1899 and 1907, to the Permanent Conciliation Commissions to be established under the Locarno treaties of 1925, it is a long step. It is believed to be worth while to take note of the length of it.

Commissions of inquiry under the Hague Conventions and likewise under the treaties concluded by the United States for the advancement of peace when Mr. Bryan was Secretary of State were designed solely to investigate and report. No burden was imposed upon the commission to endeavor to cause the states at variance to accept its report, and it was not authorized to exercise its good offices as a mediator, still less, to endeavor to check the conduct of the parties to a controversy during the period of investigation. While it was obviously inconsistent with the arrangement for those parties at such a time to resort to measures which might serve to render abortive the service of the commission, and while such an obligation was acknowledged in numerous treaties, the contracting states did not contemplate that the commission should be empowered to participate in the matter.2

It began to be felt by statesmen that a commission of inquiry comprised chiefly of nationals of states not parties to a controversy might well be clothed with a broader function, especially when the questions involved

1 According to Article IX of the Hague Convention of 1907, the function of an International Commission of Inquiry was "to facilitate a solution of these disputes by elucidating the facts by means of an impartial and conscientious investigation." Malloy's Treaties, II, 2230.

See also Article III of the treaty between the United States and Russia for the Advancement of Peace, concluded October 1, 1914, Treaty Series, No. 616, Treaty Volume III, 2816. 2 2 Thus, in Article I of the treaty between the United States and Russia of October 1, 1914, the parties agreed "not to resort, with respect to each other, to any acts of force during the examination to be made by the Commission and before its report is handed in." See also Article I of treaty between Chile and Uruguay, February 27, 1915, Brit. and For. St. Pap., CIX, 885; Article I of treaty between Great Britain and Brazil, April 4, 1919, id., CXII, 715; Article XI of treaty of conciliation between Austria and Switzerland, October 11, 1924, League of Nations Treaty Series, No. 862.

According to Article I of the treaty to avoid or to prevent conflicts between the American States, signed at Santiago, May 3, 1923, at the Fifth International Conference of American States, it was agreed: "In case of disputes, not to begin mobilisation or concentration of troops on the frontier of the other party, nor to engage in any hostile acts or preparations for hostilities, from the time steps are taken to convene the commission until the said commission has rendered its report or until the expiration of the time provided for in Article VII." Id., No. 831, Vol. XXXIII, 36; Boletín del Ministerio de Relaciones Exteriores, República del Ecuador, Diciembre de 1923, 113, 114.