1902 Encyclopedia > Consul (Representative)

Consul
(Representative)




CONSUL, a public officer authorized by the state whose commission he bears to manage the commercial affairs of its subjects in a foreign country, and formally permitted by the Government of the country wherein he resides to perform the duties which are specified in his commission, or lettre de provision. A consul, as such, is not invested with any diplomatic character, and he cannot enter on his official duties until a rescript, termed an excequalur (sometimes a mere countersign endorsed on the commission) has been delivered to him by the authorities of the state to which his nomination has been communicated by his own Government. This excequalur, called in Turkey a barat, may be revoked at any time at the discretion of the Government where he resides. The status of consuls commissioned by the Christian powers of Europe to reside in the Levant, and to exercise judicial functions in civil and criminal matters between their own countrymen and strangers, is exceptional to the common law, and is founded on special conventions or capitulations with the Ottoman Porte. The English consuls in the Levant were originally the officers of " the governor and company of merchants of England trading in the Levant seas," created by letters patent from James I., which were cancelled in 1826. Besides the pure consular jurisdiction—exercised under the Order in Council 30th November 1864, by a judge in the Supreme Consular Court at Constantinople, and by the ordinary consuls in provincial courts, subject to an appeal to Her Majesty's Imperial Court of Appeal, in cases beyond ¿£500 in value—there is also the jurisdiction of the consular court of the defender's nation, where the parties are both foreign Christians, and a Turkish tribunal for cases between Turks and foreign Christians. The tendency now is to substitute mixed tribunals in both these cases. The right of British consuls to be present in the native courts, when one of the parties is a British subject, was conceded by the Treaty of Dardanelles (1809). It is not unusual in the case of consuls-general resident in Mahometan countries that they should also be accredited as political agents, or chargés d'affaires, in which case they are invested with the diplomatic character, and are entitled to the privileges of public ministers.





The present system of consuls d'outre mer, or à l'étranger, was preceded by the system of domestic consuls, juges consuls, or marchands, in the chief maritime cities of the south of Europe. These constituted mere tribunals of commerce which had no special concern with foreign shipping or trade. Later on, the need was felt of a safe place of deposit and of an independent jurisdiction. Particular quarters of mercantile cities were assigned to foreign traders, and disputes were decided by officers variously called governors, protectors, ancients, alder-men (in the Hanse towns), syndics, jurats, prevosts, capitouls, and 6ehevins—all names borrowed from muni-cipal offices. The consul was generally a wholesale dealer, named by the rector and council of the home city. He had power to fine and banish from the quarter. Similar to these were the judge-conservators, elected by British residents in the Portuguese ports. This privilege long cemented the friendly relations of the two nations, I and was formally renounced only in 1842. Another singular institution, containing more than the germ of the modern consulate, was "the Cour de la Fonde, whose jurisdiction had supplanted the old Court of the Reis or Baillis (established by Godfrey de Bouillon at Jerusalem for the benefit of Syrian merchants), and which included a cognizance of all commercial matters, its judges being a mixed body of Franks and Syrians" (Kent's Commentaries, by Abdy, p. 137). The 16th century saw the introduction of foreign consuls, but the earliest treaties of Great Britain with Spain and Turkey on this subject are dated in 1665 and 1675. The right to establish consuls is now universally recognized by Christian civilized states. Jurists at one | time contended that according to international law a right I of " extra-territoriality " attached to consuls, their persons and dwellings being sacred, and themselves amenable to local authority only in cases of strong suspicion on political grounds. It is now admitted that, apart from treaty, cus-tom has established very few consular privileges; that perhaps consuls may be arrested and incarcerated, not | merely on criminal charges, but for civil debt; and that, if they engage in trade or become the owners of immovable property, their persons certainly lose protection. This question of arrest has been frequently raised in Europe :— in the case of Barbuit, a tallow-chandler, who from 1717 to 1735 acted as Prussian consul in London, and to whom the exemption conferred by statute on ambassadors was held not to apply; in the case of Cretico, the Turkish consul at London in 1808; in the case of Begley, the United States consul at Genoa, arrested in Paris in 1840; and in the case of De la Fuente Hermosa, Uruguayan con-sul, whom the Cour Royale of Paris in 1842 held liable to arrest for debt. In the same way consuls, unless pro-tected by treaty, pay local taxes, although they are generally exempt from general duties on articles of personal consump-tion, relief from income tax being often given by treaty. They are exempt from billeting and military service, but are not entitled (except in the Levant, where also freedom from arrest and trial is the rule) to have private chapels in their houses. The exception in favour of the Levant was illustrated in 1853, when the refugee Martin Koszta, who had become United States consul at Smyrna and charge d'affaires at Constantinople, was seized by the Turks, j This, although a case of suspicion on political grounds, called forth a protest from America, and restitution was made. The right of consuls to exhibit their national arms and flag over the door of the bureau is not disputed.

The duty of consuls, under the " General Instructions to British Consuls," is to advise Her Majesty's trading subjects, to quiet their differences, and to conciliate as much as possible the subjects of the two countries. Treaty rights he is to support in a mild and moderate spirit; and he is to check as far as possible evasions by British traders of the local revenue laws. Besides assisting British subjects who are tried for offences in the local courts, and ascertaining the humanity of their treatment after sentence, he has to consider whether home or foreign law is more appropriate to the case, having regard to the convenience of witnesses and the time required for decision; and, where local courts have wrongfully interfered, he puts the Home Government in motion through the consul-general or ambassador. He sends in reports on the export and import trade of the district in which he resides ; and he reports to the secretary of state when a vice-consul is required in any place, generally naming an English merchant. Under the Act 12 and 13 Vict. c. 68, extended by the Consular Marriage Act, 1868, consuls are empowered, on certain notices and declarations being given, to celebrate marriage between persons who have resided one month in the district, one of them being a British subject. They are also empowered by statute to advance for the erection or maintenance of Anglican churches, hospitals, and places of interment sums equal to the amount subscribed for the purpose by the resident British subjects.

As the powers and duties of consuls vary with the parti-cular commercial interests they have to protect, and the civilization of the state in whose territory they reside, instead of abstract definition, we summarize the provisions on this subject of the British Merchant Shipping Acts. Consuls are bound to send to the Board of Trade such reports or returns on any matter relating to British merchant shipping or seamen as they may think necessary. Where a consul suspects that the shipping or navigation laws are being evaded, he may require the owner or master to produce the log-book or other ship documents (such as the agreement with the seamen, the account of the crew, the certificate of registration); he may muster the crew, and order explanations with regard to the documents. Where an offence has been committed on the high seas, or abroad ashore, by British seamen or apprentices, the consul makes inquiry on oath, and may send home the offender and witnesses by a British ship, particulars for the Board of Trade being endorsed on the agreement for conveyance. He is also empowered to detain a foreign ship, the master or seamen of which appear to him through their misconduct or want of skill to have caused injury to a British vessel, until the necessary application for satisfaction or security be made to the local authorities. Every British mercantile ship, not carrying passengers, on entering a port gives into the custody of the consul to be endorsed by him the seamen's agreement, the indentures, &c.; a failure to do this is reported to the registrar-general of seamen. The following five provisions are also made for the protection of seamen. If a British master engage seamen at a foreign port, the engagement is sanctioned by the consul, acting as a Superintendent of Mercantile Marine Offices. The consul collects the property (including arrears of wages) of British seamen or apprentices dying abroad, and remits to H.M. paymaster-general. He also provides for the subsistence of seamen who are shipwrecked, discharged, or left behind, even if their service was with foreign merchants ; they are generally sent home in the first British ship that happens to be in want of a complement, and the expenses thus incurred form a charge on the Parliamentary fund for the relief of distressed seamen, the consul receiving a commis-sion of 2J per cent, on the amount disbursed. Complaints by crews as to the quality and quantity of the provisions on board are investigated by the consul, who enters a statement in the log-book and reports to the Board of Trade. Money disbursed by consuls on account of the illness or injury of seamen is generally recoverable from the owner. With regard to passenger vessels, the master is bound to give the consul facilities for inspection and for communication with passengers, and to exhibit his " master's list," or list of passengers, so that the consul may transmit to the registrar-general, for insertion in the Marine Register Book, a report of the passengers dying and children born during the voyage. The consul may even defray the expenses of maintaining, and forwarding to their destina-tion, passengers taken off or picked up from wrecked or injured vessels, if the master does not undertake to proceed in six weeks ; these expenses becoming, in terms of the Passenger Acts 1855 and 1863, a debt due to Her Majesty from the owner or charterer. Where a salvor is justified in detaining a British vessel, the master may obtain leave to depart by going with the salvor before the consul, who after hearing evidence as to the service rendered and the proportion of ship's value and freight claimed, fixes the amount for which the master is to give bond and security. In the case of a foreign wreck the consul is held to be the agent of the foreign owner. Much of the notarial business which is imposed on consuls, partly by statute and partly by the request of private parties, consists in taking the declarations as to registry, transfers, &c, mentioned in Schedules B, O, F, G-, H, L of the Mercantile Shipping Act. Under commercial treaties with China, British consuls in the free ports of Canton, Amoy, Foo-chow-foo, Ningpo, and Shanghae have extensive judicial and execu-tive powers. The same observation applies to Japan. (See Order in Council of 9th March 1865 and relative rules.)





The position of United States consuls is minutely described in the Regulations, Washington, 1870. Under various treaties and conventions they enjoy large privileges and jurisdiction, By a treaty with Sweden in 1818 the United States Government agreed that the consuls of the two states respectively should be sole judges in disputes between captains and crews of vessels. By convention with France in 1857 they likewise agreed that the consuls of both countries should be permitted to hold real estate, and to have the "police interne des navires à commerce." In Eastern Asia an exclusive jurisdiction, civil and criminal, is always stipulated in cases where United States subjects are interested. Exemption from liability to appear as a witness is often stipulated. The question was raised in France in 1843 by the case of the Spanish consul Soller at Aix, and in America in 1854 by the case of Dillon, the French consul at San Francisco, who, on being arrested by Judge Hoffmann for declining to give evidence in a criminal suit, pulled down his consular flag. So, also, inviolability of national archives is often stipulated. The archives of a French consul in London were once seized by a collector of local taxes and sold by auction, and in 1858 the flag, seal, arms, and record-book of the United States consulate at Manchester were levied on for a private debt of the consul. To the consuls of other nations the United States Govern-ment have always accorded the privileges of arresting deserters, and of being themselves amenable only to the Federal and not to the States courts. They also recognize foreign consuls as representative suitors for absent foreigners.

The United States commercial agents, although appointed by the president, receive no exœquatur. They form a class by themselves, and are distinct from the consular agents, who are simply deputy consuls in districts where there is no principal consul. France is distinguished among nations for an organization of trained consuls who have intimate relations with the diplomatic corps.

See l)e Miltitz, Manuel des Consuls, London and Berlin, 1837- 1843; De Cussy, Règlements Consulaires des principaux états maritimes de l'Europe et de l'Amérique, 1851, and Dictionnaire du diplomate et du Consul, Leipsic, 1846; Fynn's British Consul Abroad; Report of Select Committee on Consular Service (Pari. Papers), 1872; Martens, Guide diplomatique, Leipsic, 1866 ; and De Clercq, Guide pratique des cmtsulats, 1858. (W. C. S.)


Footnote

See also instructions to Consuls prepared by the Board of Trade and approved by the Secretary of State for Foreign Affairs, 1855, and Supplementary Instructions, 1868.




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