In general, in Mohammedan and non-Christian states, treaty stipulations secure to the consuls of Western states the right of exercising extensive criminal and civil jurisdiction in cases involving citizens of their own and the Eastern states, or in cases involving citizens of their own and other Western states.[263] In some of the Eastern states the consuls have exclusive jurisdiction over all cases to which citizens of their states are parties;[264] in others the cases involving citizens of the Eastern and Western states are tried in the court of the defendant in the presence of the "authorized official of the plaintiff's nationality," who may enter protest if the proceedings are not in accord with justice,[265] while in certain states or for certain cases mixed courts are constituted. Certain Western states in their domestic laws make provisions for appeal from the decision of the consular court to specified authorities as to the diplomatic agent or to some domestic tribunal.
This jurisdiction is exceptional, furnishes no precedents for international law, tends to become more restricted, and will doubtless gradually disappear.[266]
(f) The privileges and immunities vary according to the states and from the fact that a consul may be, (1) a citizen of the state in which he exercises his consular functions, (2) a domiciled alien, (3) an alien engaged in business or some other occupation in the state where he exercises his functions, or (4) a citizen of the accrediting state engaged exclusively upon consular business.[267] It is, however, necessary that the state which grants an exequatur to, or receives as consul a person from one of the first three classes, grant to such person a measure of privilege and immunity consistent with the free performance of his consular duties.
Each consul has the privilege of placing above the door of his house the arms of the state which he serves, generally also of flying its flag. The archives and official property are inviolable.
In the case of a consul not a citizen of the receiving state and engaged exclusively in consular business, exemption from arrest except on a criminal charge, when he may be punished by local laws or sent home for trial; exemption from witness duty, though testimony may be taken in writing; exemption from taxation; exemption from military charges and service,—is usually conceded by custom and often by treaty. It is not, however, conceded that the consular residence may be used as an asylum.
The consul of the third class, who, though an alien to the receiving state, engages in business other than consular duties, is subject to all local laws governing similarly circumstanced foreigners, except when in the performance of his functions. His consular effects must be kept distinct from those appertaining to his business capacity, which last are under local law.
The domiciled alien exercising consular functions is subject to local law as others similarly circumstanced, which, in some states, may involve considerable obligations. The freedom from local restrictions sufficient for the convenient performance of his consular duties is implied in the grant of the exequatur.
The reception of a citizen as a consular representative of a foreign state does not confer upon him the personal privileges and immunities of any of the other classes, but only the immunities attaching to the office itself, and absolutely necessary for the performance of its duties, as the right to use the arms above the office door, the inviolability of archives, and respect for his authority while in the performance of his functions.
In some of the Eastern states and in some of the non-Christian and semicivilized states consuls are entirely exempt from local jurisdiction, enjoying exemptions similar to those of diplomatic agents.
In time of war the house of the consul is, when flying the flag of the state which he serves, specially protected, and liable to injury only in case of urgent military necessity. Consuls do not necessarily withdraw because of hostilities with the accrediting state.[268]