§ 437. It is not certain in practice whether the office of a consul terminates when his district, through cession, conquest followed by annexation, or revolt, becomes the property of another State. The question ought to be answered in the affirmative, because the exequatur given to such consul originates from a Government which then no longer possesses the territory. A practical instance of this question occurred in 1836, when Belgium, which was then not yet recognised by Russia, declared that she would henceforth no longer treat the Russian consul Aegi at Antwerp as consul, because he was appointed before the revolt and had his exequatur granted by the Government of the Netherlands. Although Belgium gave way in the end to the urgent remonstrances of Russia, her original attitude was legally correct.
Change in the Headship of States not Cause of Termination.
§ 438. It is universally recognised that, in contradistinction to a diplomatic mission, the consular office does not come to an end through a change in the headship of the appointing or the admitting State. Neither a new patent nor a new exequatur is therefore necessary whether another king comes to the throne or a monarchy turns into a republic, or in any like case.
VII CONSULS IN NON-CHRISTIAN STATES
Tarring, "British Consular Jurisdiction in the East" (1887)—Hall, "Foreign Powers and Jurisdiction," §§ 64-85—Halleck, I. pp. 385-398—Phillimore, II. §§ 272-277—Taylor, §§ 331-333—Twiss, I. § 136—Wheaton, § 110—Ullmann, §§ 63-65—Bulmerincq in Holtzendorff, III. pp. 720-738—Rivier, I. § 43—Nys, II. pp. 400-414—Calvo, III. §§ 1431-1449—Bonfils, Nos. 776-791—Pradier-Fodéré, IV. 2122-2138—Mérignhac, II. pp. 338-351—Martens, II. §§ 24-26—Martens, "Konsularwesen und Konsularjurisdiction im Orient" (German translation from the Russian original by Skerst, 1874)—Bruillat, "Étude historique et critique sur les juridictions consulaires" (1898)—Lippmann, "Die Konsularjurisdiction im Orient" (1898)—Vergé, "Des consuls dans les pays d'occident" (1903)—Hinckley, "American Consular Jurisdiction in the Orient" (1906)—Piggott, "Exterritoriality. The Law relating to Consular Jurisdiction, &c. in Oriental Countries" (new edition, 1907)—Mandelstam, "La justice ottomane dans ses rapports avec les puissances étrangères" (1911), and in R.G. XIV. (1907), pp. 5 and 534, and XV. (1908), pp. 329-384.
Position of Consuls in non-Christian States.
§ 439. Fundamentally different from the regular position is that of consuls in non-Christian States, with the single exception of Japan. In the Christian countries of the West alone consuls have, as has been stated before (§ 418), lost jurisdiction over the subjects of the appointing States. In the Mohammedan States consuls not only retained their original jurisdiction, but the latter became by-and-by so extended through the so-called Capitulations that the competence of consuls soon comprised the whole civil and criminal jurisdiction, the power of protection of the privileges, the life, and property of their countrymen, and even the power to expel one of their countrymen for bad conduct. And custom and treaties secured to consuls inviolability, exterritoriality, ceremonial honours, and miscellaneous other rights, so that there is no doubt that their position is materially the same as that of diplomatic envoys. From the Mohammedan countries this position of consuls has been extended and transferred to China, Japan, Persia, and other non-Christian countries, but in Japan the position of consuls shrank in 1899 into that of consuls in Christian States.
Consular Jurisdiction in non-Christian States.
§ 440. International custom and treaties lay down the rule only that all the subjects of Christian States residing in non-Christian States shall remain under the jurisdiction of the home State as exercised by their consuls.[782] It is a matter for the Municipal Laws of the several Christian States to organise this consular jurisdiction. All States have therefore enacted statutes dealing with this matter. As regards Great Britain, several Orders in Council and the Foreign Jurisdiction Act (53 & 54 Vict., c. 37) of 1890 are now the legal basis of the consular jurisdiction.[783] The working of this consular jurisdiction is, however, not satisfactory in regard to the so-called mixed cases. As the national consul has exclusive jurisdiction over the subjects of his home State, he exercises this jurisdiction also in cases in which the plaintiff is a native or a subject of another Christian State, and which are therefore called mixed cases.