Cyclopædia of Political Science, Political Economy, and the Political History of the United States
CONSULS. Consuls are officials appointed by competent authority to reside abroad for the purpose of protecting, facilitating and extending commerce between the countries which appoint them and the countries whither they are sent.
—Count Beugnot, French minister of the navy, speaks in the following manner of consular functions: "Consuls are officers sent by a sovereign to the different ports or harbors to decide commercial questions between the subjects of his nation. The establishment of consuls has no other object than the advantage, the increase, the security and the police regulation of the commerce of nations with each other. Consuls are the guardians of their countrymen against the vexations, injuries and injustices of the country where they reside; and they exercise certain police powers over all the individuals of their nation."
—On a careful examination of the principles laid down here by count Beugnot, it is clearly seen that the functions of consuls have a character both commercial and diplomatic. They suppose in him who is invested with them, a public character which commands consideration. This character is still further increased by the fact that the consul is not only the representative of the state which sends him abroad, but that he is, besides, accepted by the sovereign of the country to which he is sent.
—The state which gives a nation permission to carry on commerce seems also to consent tacitly to the establishment of a consulate of that nation, and to engage to receive a consul from it.
—Nevertheless, the state not being bound to this in virtue of an obligation which gives to the other nation a perfect and coactive right, the nation which wishes to have a consul must obtain that right by a treaty of peace or commerce. Such is the opinion expressed by Vattel. (Droit des gens, t. i., liv. 11, chap. 11.) Valère expresses the same opinion. (Commentaires sur l'ordonnance de la marine, t. i., p. 232 ) Thus we see that nations, in treaties of commerce, generally stipulate for the reciprocal right of establishing consuls in all the ports of a country or only in the ports and places mentioned in the treaties.
—It is not sufficient, then, to be appointed and armed with letters on the part of his sovereign: the consul must also obtain the approbation of the sovereign of the country in which he is to reside and exercise the functions of this office. This admission of the consul into a foreign country depends on the good pleasure of the sovereign of that country.
—The power granted a nation of doing business, says Mr. Steck (Essai sur les Consuls, p. 56), in a foreign country, seems to give authority tacitly to establish consuls there; but it is safer to have this authority expressly provided for in a treaty.
—Consuls are furnished with credentials and instructions, which they present to the princes of the states where they are going to reside; and, on this presentation, they obtain the sovereign's approbation, and it is ordered that they shall be recognized as possessing the character of consul: this is called an exequatur.
—When consuls are clothed with a diplomatic title, such as that of diplomatic agent or chargé d'affaires, they are furnished with a commission to accredit them in their consular capacity, and with a letter of credence to accredit them in their diplomatic quality.
—The origin of consulates is generally carried back to the time of the crusades. "The establishment of consuls," says Martens, in his Traite du droit des gens, "seems to date from the middle ages, from the period of the crusades. The commercial cities of Italy then employed their wealth in the equipment and provisioning of fleets to transport Christian armies to Asia. Great marts were established on the shores of the latter continent, under the protection of the princes who planted their standards there. These places attracted, through the desire of gain, new speculators, who came to compete with the merchants who established them. At this juncture they conferred on certain of their own number, by the name of consuls, jurisdiction in matters of arbitration, and submitted to the decisions of these judges." Mr. Steck (Essai sur les Consuls, p. 14,) also carries the origin of consulates back to the crusades. "The Pisans, the Venetians, the Genoese, formed at that time various establishments in Asia. The princes, the masters of the places where they established these marts, accorded to them the most extensive immunities. All the merchandise which they exported was declared free from all duties and taxes. They were given entire quarters in certain maritime cities; and in others streets and houses: but one of the most important privileges granted them was to cause to be decided, according to their own laws, and by judges of their own nation, appointed by themselves, all the controversies arising between persons carrying on trade under their protection, or who were established within the limits of the territory ceded to them."
—At first the consuls were, in reality, only arbitrators in commercial matters; but their privileges were extended; they became the delegates of their sovereigns, and were intrusted, not only with settling disputes between the merchants of their country, but also with protecting them in their relations with the countries to which they had come to trade. Thus, a consul in a foreign country is really a public minister.—"I do not hesitate," says Steck, in the work cited above, "to call the consul a public minister. It is a pure logomachy, a useless dispute of words, to deny him this quality and this name. Whoever is intrusted by his sovereign with the interests of the nation should be considered a public minister. I acknowledge that the consul is only a minister of an inferior order; but that only affects the honors paid him."
—M. de Moser also expresses himself in this sense, and recognizes the public character with which consuls are clothed beyond a contradiction. He admits they are public ministers, though of a kind and rank inferior to those of the first and second order. "As consuls," this learned publicist says, "are charged by their sovereigns with watching over the interests of national commerce, seeing to the observance of treaties, asking for their execution, making remonstrances on this score, presenting complaints to the court where they reside in case of infraction, and since they are thus really charged with affairs of state, it appears strange to me to call in doubt their official character, and to wish to refuse them the name of public minister."
—This settled, we must admit that consuls ought to be placed under the protection of the law of nations, and enjoy the privileges and prerogatives which treaties or usage assure them. If we insist on this point of the public character of consuls, it is because it has been greatly controverted, and because eminent jurists in the seventeenth and eighteenth centuries have wished to recognize in them merely commercial agents and commercial judges. Vattel, Martens and Klüber have denied them the quality of political agents, which is nevertheless inherent in their office. The error of these authors has come from this, that they have not sufficiently considered the changes which have taken place in international relations, and from the fact that they have not studied carefully the provisions of the different treaties of commerce touching the consular institution: otherwise, they would have seen that these treaties accord to consuls the essential guarantees which surround diplomatic agents of a higher order. Consult especially on this subject the capitulation concluded between France and the Ottoman porte (April 28, 1604, June 5, 1673; May 28, 1740), and you will soon have the proof of this. "The consuls of France, according to these capitulations, shall enjoy all the privileges of the laws of nations, and be protected in all peace and tranquillity. They are never to be constrained and forced to appear personally before a court of justice; they are free and exempt from all kinds of taxes." These privileges, it is seen, are of the same nature as those which diplomatic agents enjoy. Why not recognize, therefore, their public character, which results from the very nature of the facts in the case?*65
Notes for this chapter
In the United States consuls are nominated by the president and confirmed or rejected by the senate. Before entering on the duties of his office, the consul is required to give bond for the faithful discharge of his duties, with sureties to be approved by the secretary of state. Consuls "have authority to receive protests or declarations which captains, masters, crews, passengers, merchants and others make relating to American commerce. They are required to administer the estates of American citizens dying within their consulate and leaving no legal representatives, when the laws of the country permit it; to take charge of stranded American vessels, in the absence of the master, owner or consignee; to settle disputes between masters of vessels and the mariners; and to provide for destitute seamen within their consulate, and send them to the United States at the public expense." (See Bouvier's Law Dictionary.)
End of Notes
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