1836 (Art. XXXI); Peru-Bolivia, 1836 (Art. XXVII); Ecuador, 1839 (Art. XXXI); Guatemala, 1849 (Art. XXX); Salvador, 1850 (Art. XXXII); Peru, 1851 (Art. XXXVI), 1870 (Art. XXXIII), 1887 (Art. XXXI); Netherlands, 1855 (Art. II); Bolivia, 1858 (Art. XXXIII); and Haiti, 1864 (Art. XXXV). In many instances, however, this must be read in connection with the most-favored-nation clause. Although these treaties have a common residual clause, it is not to be understood that the residuum is the same in all cases; for the exemptions granted in each case, reference should be made to the particular treaty.

ARCHIVES

As might be expected, one of the earliest specific exemptions appearing in treaties was that given to archives; and it is one which has appeared in a great majority of the treaties according exemptions. The reasons for this are obvious; the consular business is such that its records must always be at the disposal of the consul; and the relations of the consul to his home government are essentially confidential. This first found expression in the French consular convention of 1788, in a statement that:

The consuls and vice consuls, and persons attached to their functions; that is to say, their chancellors and secretaries, shall enjoy a full and entire immunity for their chancery, and the papers which shall be therein contained (Art. II).

The next statement of this immunity came in a treaty of amity and commerce with Sweden and Norway in 1816. That treaty provided for the punishment of consuls guilty of illegal acts, and then stated that this would not subject the archives to examination, as all of the official records should be carefully preserved under the seal of the consul and of the authorities of the place of his residence (Art. V). Practically the same expression found a place in the treaty of commerce and navigation with the same country in 1827, the only important difference being that the word "search" appeared for the "examinations" found in the earlier treaty (Art. XIII). The Greek treaty of commerce and navigation of 1837 (Art. XII) followed the treaty of 1827.

The year 1824 saw the standardization of the exemption, a commercial treaty with Colombia in that year containing the following provision: "The archives and papers of the consulates shall be respected inviolably, and under no pretext whatever shall any magistrate seize or interfere with them" (Art. XXVIII). The identical wording was followed in commercial treaties with Central America, 1825 (Art. XXX); Denmark, 1826 (Art. X); Brazil, 1828 (Art. XXX); Mexico, 1831 (Art. XXIX); Chile, 1832 (Art. XXVIII); Peru-Bolivia, 1836 (Art. XXVII); Venezuela, 1836 (Art. XXXI); Ecuador, 1839 (Art. XXXI); Portugal, 1840 (Art. X); Colombia, 1846 (Art. XXXII); Guatemala, 1849 (Art. XXX); Salvador, 1850 (Art. XXXII); and Bolivia, 1858 (Art. XXXIII).

A slight change in the phraseology was made in 1850 in the consular convention with Colombia (Art. V), when the word "functionary" was substituted for the word "magistrate" of the treaty of 1824. A treaty of friendship, commerce and extradition with Switzerland of that same year (Art. VII) introduced two other changes. The first of these was the addition of the term "functionary" to "magistrate" in place of the substitution of the Colombian treaty. The second enlarged the scope of the exemption by denying to the "magistrates or other functionary" the right to "visit, seize, or in any way interfere with" the consular archives and papers. The following year witnessed a further enlargement in the number of persons affected; so that in the Peruvian treaty of friendship, commerce, and navigation of 1851 the list of those forbidden to disturb the consular archives comprised all persons, magistrates, and other public authorities (Art. XXXVI). In general this same expression was used in commercial treaties with Haiti, 1864 (Art. XXXV), and Peru, 1870 (Art. XXXIII), 1887 (Art. XXXI);6 while the treaty of friendship, commerce and navigation entered into between the Argentine Republic and the United States in 1853 stated the prohibition to be against "any magistrate or any of the local authorities" (Art. XI).

A complete change in the phraseology of the provision was effected in the consular convention with France in 1853. Speaking of the relation of the local authorities to the consulate, Article III provided that "in no case shall they examine or seize the papers there deposited." Identical language was employed in consular conventions with Belgium, 1868 (Art. VI) and 1880 (Art. VI); Italy, 1868 (Art. VI); Salvador, 1870 (Art. XXXV); German Empire, 1871 (Art. V);7 Serbia, 1881 (Art. VI); Roumania, 1881 (Art. VI); Congo, 1891 (Art. V); and Greece, 1902 (Art. VI); and almost the same in a treaty of friendship and general relations with Spain, 1902 (Art. XVIII).

The latest important change in the exemption was made in a consular convention with Sweden in 1910, in which it was specifically stated that the consul should never be required to produce the consular papers in court or to testify as to their contents (Art. VI). This position had been maintained previously on at least one occasion when its only basis was the provision declaring archives to be at all times inviolable. The account of the incident as given in Moore's International Law Digest is as follows:

The information regarding which your testimony is desired was communicated by Mr. Nickel to you in your capacity of consul general of the United States, and as such officer you took action and communicated the statements to the Department, thereby making them a part of the records of your consulate.

To the same effect is the treaty of friendship, commerce, and extradition with the Orange Free State entered into in 1871 (Art. V).

• The last named treaty provision was applied in 1897. See Moore, Digest, V: 52. 7 Applied in Kessler v. Best (1903), 121 Fed. 439.

It is provided in Article V of the treaty of 1871 with Germany that the consular archives shall be at all times inviolable and where communications are from their nature confidential, for the cognizance of the consul's government only, it is clear that consular officers should not be called upon to testify regarding them.

The Department, therefore, can not authorize you to testify in the case, on the ground that whatever knowledge you may have is official and privileged, because concerning only your relation to your own government.8

While these treaties indicate the general development of the archives provision, there have been several minor variances. Thus the Dutch consular convention of 1855 provided with reference to the Dutch colonies that consular archives situated therein should be protected from all search and that no authority or magistrate should have power to visit, seize, or examine them (Art. V). Treaties with the Two Sicilies in 1855 (Art. XVIII) and with Venezuela in 1860 (Art. XXVI) stated that where a consul was a citizen of the country in which he was performing his functions, he should be subject to its laws as any other citizen, but that this should not be so construed as to affect the inviolability of the consular archives.

In the consular convention with Austria-Hungary (1870), the local authorities were forbidden to examine or seize the papers of the archives, which were to be inviolable at all times (Art. V). To the same effect was Article VI of the consular convention with the Netherlands (1878); while that of the same year with Italy (Art. VI) provided that the local authorities should not "examine or sequestrate" the papers of the archives.

Up to the present time, provisions especially designed to protect the consular archives have appeared in forty-four treaties with thirty-two different states. Although the wording has varied from time to time, the general effect has been at all times to protect the archives from all interference of any kind. It must be understood, however, that the exemption applies only to those papers which relate to the consular business; in many cases it is specifically stated, and in the others it is implied, that these documents must be kept separate from unofficial papers of the consulate. This distinction has been applied in the Consular Regulations in the absence of treaty provisions.

INSIGNIA, INVIOLABILITY OF CONSULATE, ASYLUM

The right to display the national coat-of-arms and to hoist the national flag, inviolability of the consular offices and of the consular dwelling, and the use of the consulate as an asylum, are so closely related as to merit a joint consideration. The privilege of displaying the national insignia has been accorded regularly, and the denial of the right to use the consulate as

Rockhill, third Asst. Sec. of State, to Mr. Mason, July 31, 1894 (Moore, Digest, V: 83). This position was again maintained in 1899. Hay, Sec. of State, to Mr. White, March 6, 1899 (Moore, Digest, V: 82).

an asylum has been equally uniform; but the broader question of the inviolability of the consulate has received more varied treatment. The French consular convention of 1788 carried the first expression of the last named exemption when it stated that consular officers should enjoy a full and entire immunity for their chancery (Art. II). At the same time "they shall place over the outward door of their house the arms of their sovereign; but this mark of indication shall not give to the said house any privilege of asylum for any person or property whatever."

The next instance of this concession (1833) was the brief statement in a treaty of amity and commerce with Muscat that the consuls' houses should be inviolate (Art. IX)o and a fuller consideration was not given until 1850. The consular convention with Colombia concluded in that year provided:

In order that the dwellings of consuls may be easily and generally known, for the convenience of those who may have to resort to them, they shall be allowed to hoist on them the flag, and to place over their doors the coat-of-arms of the nation in whose service the consul may be, with an inscription expressing the functions discharged by him; but those insignia shall not be considered as importing a right of asylum, nor as placing the house or its inhabitants beyond the authority of the magistrates who may think proper to search them, and who shall have that right in regard to them in the same manner as with regard to the houses of the other inhabitants in cases prescribed by the laws.

The... dwellings of consuls shall be subject to the laws and authorities of the country in all cases in which they have not received a special exemption by this convention and in the same manner as other inhabitants (Arts. V, VI).

The consular convention with France in 1853 made provision for the display of the national arms and flag and of an inscription either on the consular office or dwelling (Art. II). Article III declared that the consular offices and dwellings, which were inviolable, should not be invaded under any pretext; but in no case could those offices or dwellings be used as places of asylum. This expression would seem to leave the local authorities incapable of taking direct action in case the consulate should be used as an asylum, though the dismissal of the consul would probably follow any attempt so to use his office or dwellings. Apparently, however, it is customary to permit the local authorities to enter the consulate when this is necessary for the capture of a refugee.10

The consular convention applying to the Dutch colonies (1855) extended the privilege of utilizing the national arms and the proper inscription, but • This provision was adopted by Zanzibar in the treaty of amity, commerce and navigation of 1886 (Art. II).

10 Marcy, Sec. of State, to Mr. Clay, Jan. 24, 1854 (Wharton, Digest, I: 676); same to Mr. Wheeler, May 11, 1855 (ibid.); Hunter, Acting Sec. of State, to Mr. Peck, Oct. 4, 1865 (ibid., p. 678). But this does not mean that the consulate can be invaded at will on the suspicion that it is being used as an asylum. Hay, Sec. of State, to Mr. Powell, April 25 and Nov. 27, 1899 (Moore, Digest, V: 55-57).

made no mention of the national flag; and the use of the arms and inscription was restricted to the consulate. Here, again, it was provided specifically that such outward mark should never be considered as conferring the right of asylum, nor as exempting the house and its occupants from the prosecution of the local justice (Art. IV).

11

Two consular conventions in 1868, one with Belgium and the other with Italy, were almost identical in this respect. The French consular convention of 1853 was followed with reference to the inviolability of the consulate and its use as an asylum; and the only difference in the matter of display of national insignia was that the later conventions restricted the use of the national flag to consulates outside of the capital where a legation of the consul's government was situated (Arts. V, VI). A convention with Austria-Hungary two years later extended the use of the flag to include the vessel which the consul might use in port for the discharge of his functions Art. IV); 12 while a similar treaty with Salvador in the same year followed the French model except for the restriction of the use of insignia to "dwellings" (Art. XXXV).

The Austro-Hungarian provision was followed in the consular convention with Germany in 1871; but one important variation appeared in the specific provision that the local authorities might invade the consulate when in pursuit of an offender against the criminal law, though this was the only case in which such invasion could be justified (Art. V).13

The general pattern laid down in the preceding conventions governed the statements in Articles V and VI of the consular conventions with Italy,

11 The Italian Government in denouncing the consular convention on September 14, 1877, referred to the provision under consideration as follows:

"It is not necessary for me to use words to explain to you how such a state of things is in little harmony with the modern principles of international law, which principles have to take into consideration the progress of civilization and of the greatly extended guarantees sanctioned by modern laws for the protection of individual liberty and of the inviolability of domicile, and have then to leave open the way for the common law, reserving the privilege of exemption only to dwellings of diplomatic agents, the true representatives of foreign sovereignty.

"On the other hand, once that the principle is admitted to consular officers being liable, to summons before the tribunals of the kingdom, to there answer for responsibilities contracted by them, it does not seem logical that to them should be granted, by means of this exemption, the way of evading for themselves and their effects the execution of the sentence." Foreign Relations, 1878, 462-463.

A new consular convention entered into in the following year omitted the objectionable clause.

12 Applying the provisions of this treaty, Secretary of State Frelinghuysen held in 1884 that where the right to display the national flag had been secured by treaty, it could not be interfered with by municipal ordinance. Moore, Digest, V: 58; For. Rel. 1884, pp. 18, 19.

13 Action of the German Government which would result in the virtual imprisonment of an American consul within the consulate, while not within the letter of this article, will be protested against as violating its meaning. Hay, Sec. of State, to Mr. White, March 6, 1899. Moore, Digest, V: 82.