1878; Netherlands, 1878; Belgium, 1880; Serbia, 1881; Roumania, 1881; Greece, 1902; Sweden, 1910; in the treaty of amity, commerce and navigation with the Congo, 1891 (Art. V), and in the treaty of friendship and general relations with Spain, 1902 (Arts. XVII and XVIII). The only other provision on the subject was that in the convention as to protection entered into in 1880 between the United States and Morocco, in which it was stated (Art. VI) that the consul's dwelling should be respected.

Interpreting a provision of the treaty of amity, commerce and navigation of 1831 with Mexico (Art. XXIX), Secretary of State Evarts was of the opinion that the exemption of consular archives from seizure and examination did not afford any protection to the consular office, and that there was no just ground for complaint against the local authorities for an entry of the consulate so long as the archives were left untouched.14

The Department of State was called upon in 1890 to apply the provision,"The consular offices and dwellings shall be at all times inviolable. The local authorities shall not under any pretext invade them. In no case shall they examine or seize the archives or papers there deposited." In July, 1890, forces of the provisional government had torn down the consular flag at San Salvador, destroyed or carried away the archives, property of the United States, and personal property of the consul, and subjected the consul to personal indignities. The United States immediately called the treaty provision to the attention of the Salvadorean Government; and after some negotiation, satisfactory reparation was made. 15

The provision of the French consular convention of 1853 that "the consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext" was the subject of some correspondence between the two countries in 1899. The American consul at Bordeaux moved his residence to Archachon in order to undergo medical treatment. The routine work of the office was done at Bordeaux, but the consular correspondence was conducted from Archachon. Local authorities invaded the dwelling at the latter place under the authority of a writ issuing from a local court in a suit in which the consul was defendant. This action was protested by the United States as being a violation of its treaty rights. In the course of the correspondence arising from the incident, the respective positions of the two governments were set out as follows:

The French Government, on the other hand, held that the treaty accorded inviolability to the consular dwelling only because it might be sometimes difficult to distinguish the office from the residence; that the designation in the exequatur of the seat of the consulate determined the place of official residence, the mention of the wider area of jurisdiction referring only to the right to perform consular acts; and that, as consuls do not enjoy the exemptions of public ministers, the privileges of the 14 Evarts, Sec. of State, to Mr. Foster, Feb. 20, 1880. Moore, Digest, V: 34.

15 Moore, Digest, V: 51. The article in question was Art. XXXV of the treaty of amity, commerce, and consular privileges (1870) with Salvador.

treaty should not be extended beyond the offices and residences of the consuls at their several posts.

The United States, while maintaining that this view was not consistent with the letter or intent of the treaty, intimated that it would be adopted, should occasion arise, as a reciprocal construction thereof.16

In a second case involving the same clause, the Department of State disapproved the action of an American consul in receiving into the consulate the property of an American citizen in order that it might escape attachment by a French court. While the French authorities might not invade the consulate to secure the restitution of the property, the consul was required to notify the proper officials of the time and place at which the restoration was to be made.

MILITARY BILLETING AND SERVICE

Immunity from military billeting and service was accorded in the consular convention with France in 1788, and it has been inserted in practically every consular convention entered into since that time. Although military billeting and military service are not necessarily inseparable, in only two cases have provisions been made for military billeting without similar provision for military service,17 and never has there occurred the exemption from service without that from billeting.

The French consular convention of 1788 (Art. II) stated the immunity to be from all personal service, from soldiers' billets, militia, watch and guard; and the convention of 1853 (Art. II) from "military billetings, from service in the militia or the national guard, and from other duties of similar nature." The latter expression was followed in the consular convention with Austria-Hungary in 1870 (Art. II); and the same idea predominated in the convention of 1871 with Germany, where the immunity was from military service of every sort (Art. III).

Conventions with Belgium and Italy in 1868 enumerated (Art. III) the branches of service as militia, national guard, and regular army; and it was ten years later that the sea forces were mentioned. This statement occurring in the consular convention of 1878 with the Netherlands (Art. III), was followed in substance by all the later conventions. According to that instrument, the immunity was from "military billeting and contributions and from all military service by land and sea, whether in the regular army, in the national or civic guard, or in the militia." The conventions following this principle were those with Italy, 1878 (Art. III); Belgium, 1880 (Art.

16 Moore, Digest, V: 54. The action of the local authorities in Italy in entering, to levy upon property therein, a consular dwelling protected by a clause identical with the one quoted, caused a protest by the United States. Fish, Sec. of State, to Mr. Marsh, Dec. 6, 1876. Moore, Digest, V: 37.

17 Netherlands, Consular convention of 1855, Art. XIII; Spain, Treaty of friendship and general relations, 1902, Art. XV.

III); Serbia, 1881 (Art. III); Roumania, 1881 (Art. III); Congo, 1891 (Art. V); Greece, 1902 (Art. III); and Sweden, 1910 (Art. III).

The exemption from military service was extended to all public service by commercial treaties or consular conventions with France, 1788 (Art. II);18 Colombia, 1824 (Art. XXVIII), 1846 (Art. XXXII), 1850 (Art. V); Central America, 1825 (Art. XXX); Brazil, 1826 (Art. X); Mexico, 1831 (Art. XXIX); Denmark, 1826 (Art. X); Chile, 1832 (Art. XXVIII); Peru-Bolivia, 1836 (Art. XXVII); Guatemala, 1849 (Art. XXX); Salvador, 1850 (Art. XXXII), 1870 (Art. XXXV); Peru, 1851 (Art. XXXVI), 1870 (Art. XXXIII), 1887 (Art. XXXI), and the German Empire, 1871 (Art. III).

TAXATION

One of the most widely distributed of the consular exemptions is the immunity from certain types of taxation. While there has been considerable variation in the expression of this exemption, in the majority of instances the statements have followed the same general outline. On five occasions the United States has specified immunity from tariff duties only, and in each case this was in a treaty with a Mohammedan country.19 The usual expression has been decidedly different from this. According to the French consular convention of 1788, consular officers were to be exempt from all duties, taxes, impositions, and charges except such as might be levied on the estate real and personal of which they were the proprietors or possessors, which property was to be subject to the taxes imposed on the estates of all other individuals (Art. II).

This was standardized for commercial treaties in the treaty of amity, commerce, and navigation with Colombia in 1824. Consular officers,

they not being citizens of the country in which the consul resides, shall be exempt from. . . all kinds of taxes, imposts, and contributions, except those which they shall be obliged to pay on account of commerce, or their property, to which citizens and inhabitants, native and foreign, of the country in which they reside are subject (Art. XXVIII).

Practically the same form was used in commercial treaties with Central America, 1825 (Art. XXX); Denmark, 1826 (Art. X); Brazil, 1828 (Art.

18 The expression is "all personal service."

19 Algiers, treaties of peace and amity, 1795, 1815, and 1816, Art. XXI: "The consul of the United States of America shall not be required to pay any customs or duties whatever on anything he imports from a foreign country for the use of his house and family." Tunis, treaty of amity, commerce and navigation, 1797, Art. XVII: "He may import for his own use all his provisions and furniture without paying any duty; and if he shall import merchandise (which it shall be lawful for him to do), he shall pay duty for it." Egypt, convention relating to commerce and customs, 1884, Art. X: "Articles and personal effects belonging to consuls general and consuls not engaged in other than consular business, not performing other duties, not engaged in commercial or manufacturing business, and not owning or controlling real estate in Egypt, shall be exempt from any examination, both when imported and exported, and likewise from the payment of dues."

XXX); Mexico, 1831 (Art. XXIX); 20 Chile, 1832 (Art. XXVIII); Venezuela, 1836 (Art. XXXI); Peru-Bolivia, 1836 (Art. XXVII); 21 Ecuador, 1839 (Art. XXXI); Colombia, 1846 (Art. XXXII); Guatemala, 1849 (Art. XXX); Salvador, 1850 (Art. XXXII); Peru, 1851 (Art. XXXVI), 1870 (Art. XXXIII), 1887 (Art. XXXI); Bolivia, 1858 (Art. XXIII);22 and Haiti, 1864 (Art. XXXV).

The consular convention with France in 1853 gave a slightly different turn to the taxation immunity by its specification that the exemptions from the enumerated taxes should apply whether the levy was federal, state, or municipal (Art. II). This was followed in consular conventions with Italy in 1868 (Art. III), Belgium, 1868 (Art. III), and Austria-Hungary, 1870 (Art. II).23

The consular convention with Germany in 1871 (Art. III) added one further tax to the list from which consular officers were exempt; and this exemption from sumptuary taxes was carried into the consular convention with the Netherlands in 1878 (Art. III). The German treaty also made the only direct reference to taxation of the consular salary to be found in any American treaty, by providing that under no circumstances should the official income be subject to any tax.2

24

A further variance appeared in a consular convention with Italy in 1878 in the expression:

The aforesaid consular officers shall be exempt from all national, state or municipal taxes, imposed upon persons either in the nature of a capitation tax or in respect to their property unless such taxes become due on account of the possession of real estate or for interest on capital invested in trade, manufactures, or commerce (Art. III).

This served as a model for consular conventions with Belgium, 1880 (Art. III); Servia, 1881 (Art. III); Roumania, 1881 (Art. III); Greece, 1902 (Art. III); Spain, 1902 (treaty of friendship and general relations, Art. XV); and Sweden, 1910 (Art. III).

Consular conventions with Colombia, 1850 (Art. V), and Salvador, 1870 (Art. XXXV), extended the exemption only to "contributions, personal and 20 This treaty makes the exemption from "taxes, imposts, and contributions levied especially on them."

21 This treaty places the consul on the same plane as a private citizen in similar circumstances with reference to taxes from which the consular officer is not exempt.

22 The word "taxes" was omitted from this treaty.

23 This placed the consular officer on the same plane with "other private individuals" in the matter of taxation from which the consular officer is not exempt. An interpretation of the treaty by Secretary of State Sherman in 1898 is given in Moore, Digest, V: 88.

24 The increasing popularity of income taxes as sources of revenue has caused the question of exemption therefrom to arise a number of times in communications between consuls abroad and the Department of State. While the official income of foreign consuls in the United States is exempt by statute and treasury rulings, the United States has not entered into any treaties, save the one under consideration, which makes a special reference to taxation of the consular income.

extraordinary, imposed in the country where they reside." The provision in the consular convention relating to the Dutch colonies (1855) was peculiar in that it was limited to personal taxation, and, by specific statement, was never to be extended to custom-house duties or other indirect or real taxes (Art. XIII).25

There are many instances in the records of the Department of State of efforts by consuls to secure official support for the claim of exemption from certain taxes on the basis of one of the treaty provisions given. In addition to the matter of income taxes (both on official and private incomes), such requests include such items as dog and hunting licenses, poll taxes, personal property taxes on automobiles, automobile licenses, automobile transfer taxes, inheritance taxes, and luxury taxes. The almost invariable answer is that such contributions were not in the minds of the framers of the treaty stipulation. In a field where treaty provisions could be of substantial benefit to consular officers, the phraseology employed is that of an earlier time when many of the present problems of taxation were unknown, and present methods unused.26 Such a situation is greatly to be regretted.

25 A unique exception was contained in the Moroccan convention as to protection entered into in 1880, in which it was stated that consular officers were subject to no duties, imposts, or taxes except the tax on cultivated land and the gate-tax on beasts of burden.

26 The following extract from an opinion of the Fiscal of the Supreme Court of Chile on a claim by a British consul for exemption from the use of stamped paper and from other judicial duties under number 5 of clause 4 of the Chile-Peruvian consular convention of 1870, invoked by virtue of the most-favored-nation clause of the treaty of 1854 between Great Britain and Chile, shows that the dissatisfaction with the usual phrases is more than local:

"Now, from what imposts is the consul of Peru exempt (that of England in his stead) by virtue of the clause which frees him from personal direct contributions, fiscal or municipal? From the quinta militar and capitación? Neither exists in Chile. From industrial and professional patents? Assuming that these are included in the classification of personal taxes, which is far from certain, he would owe them by virtue of the exception contained in the same number 5 of article 4 which establishes that the consul is liable for the taxes on his commercial or scientific profession or on his property in the country of his charge. From imposts, customs duties, consumption, and other local taxes (sisa, puertas)? But such tributes are not personal or direct, and for these reasons, as well as according to the principles and practices of international law, always fall on consular agents and even upon diplomatic ministers of the highest rank. From land taxes or from customs or import duties (contribución territorial i de la aduana o internacional)? These do not fall within the limited definition of article 4. The one is not direct, both are not personal; and still supposing that they had contrary characters, the consul would have to satisfy the catastro as proprietor of the land and that of aduana as lacking a diplomatic character. Will he be exempt, finally, from the stamp tax or other duties of the administration of justice applied to every litigant and from which agents of the public ministry, charitable institutions and paupers are not exempted?

. . . The tax of stamped paper is not personal, nor is it direct, nor is it extraordinary; far from belonging in the conditions specified in the consular pact with Peru, where the exemption is stipulated and classified, it presents the contrary characters of an indirect and casual tax, onerous only to those who demand or appear before justice." Jurisdicción Consular-Dictamen del Fiscal de la Excelentísima Corte Suprema don Ambrosio Montt,