Consul
CONSUL (in Gr. generally , a shortened form of , i.e. praetor maximus), the title borne by the two highest of the ordinary magistrates of the whole Roman community during the republic. In the imperial period these magistrates had ceased practically to be the heads of the state, but their technical position remained unaltered. (For the modern commercial office of consul see the separate article below.)
The consulship arose with the fall of the ancient monarchy (see further Rome : History, II. "The Republic"). The Roman reverence for the abstract conception of the magistracy, as expressed in the imperium and the auspicia, led to the preservation of the regal power weakened only by external limitations. The two new officials who replaced the king bore the titles of leaders (praetores) and of judges (judices; cf. Cicero, De legibus, iii. 3. 8, "regio imperio duo sunto iique a praeeundo judicando ... praetores judices ... appellamino"). But the new fact of colleagueship caused a third title to prevail, that of consules or "partners," a word probably derived from consalio on the analogy of praesul and exul (Mommsen, Staatsrecht, ii. p. 77, n. 3). This first example of the collegiate principle assumed the form that soon became familiar in the Roman commonwealth. Each of the pair of magistrates could act up to the full powers of the imperium; but the dissent of his colleague rendered his decision or his action null and void. At the same time the principle of a merely annual tenure of office was insisted on. The two magistrates at the close of their year of office were bound to transmit their power to successors; and these successors whom they nominated were obliged to seek the suffrages of the people. The only body known to us as electing the consuls during the republican period was the comitia centuriata (see Comitia). The consulate was originally confined to patricians. During the struggle for higher office that was waged between the orders the office was suspended on fifty-one occasions between the years 444 and 367 B.C. and replaced by the military tribunate with consular power, to which plebeians were eligible. The struggle was brought to an end by the Licinio-Sextian laws of 367 B.C., which enacted that one consul must be a plebeian (see Patricians).
Most of the internal history of Rome down to the beginning of the third century B.C. consists in a series of attacks, whether intentional or accidental, on the power of the executive. As the consuls are the sole representatives of higher executive authority in early times, this history is one of a progressive decline in the originally wide and arbitrary powers of the office. Their right of summary criminal jurisdiction was weakened by the successive laws of appeal (provocatio); their capacity for interpreting the civil law at their pleasure by the publication of the Twelve Tables and the Forms of Action. The growth of the tribunate of the plebs hampered their activity both as legislators and as judges. They surrendered the duties of registration to the censors in 443 B.C., and the rights of civil jurisdiction and control over the market and police to the praetor and the curule aediles in 367 B.C.
The result of these limitations and of this specialization of functions in the community was to leave the consuls with less specific duties at home than any magistrates in the state. But the absence of specific functions may be of itself a sign of a general duty of supervision. The consuls were in a very real sense the heads of the state. Polybius describes them as controlling the whole administration (Polyb. vi. 12 With the growth of trade it early became convenient to appoint agents with similar powers in foreign parts, and these often, though not invariably, were styled consuls (consules in partibus ultramarinis). [2] The earliest foreign consuls were those established by Genoa, Pisa, Venice and Florence, between 1098 and 1196, in the Levant, at Constantinople, in Palestine, Syria and Egypt. Of these the Pisan agent at Constantinople bore the title of consul, the Venetian that of baylo (q.v.). In 1251 Louis IX. of France arranged a treaty with the sultan of Egypt under which French consuls were established at Tripoli and Alexandria, and Du Cange cites a charter of James of Aragon, dated 1268, granting to the city of Barcelona the right to elect consuls in partibus ultramarinis, etc. The free growth of the system was, however, hampered by commercial and dynastic rivalries. The system of French foreign consulships, for instance, all but died out after the crushing of the independent life of the south and the incorporation of Provence and Languedoc under the French crown; while, with the establishment of Venetian supremacy in the Levant, the baylo developed into a diplomatic agent of the first class at the expense of the consuls of rival states. The modern system of consulships actually dates only from the 16th century. Early in this century both England and Scotland had their "conservators" with "jurisdiction to do justice between merchant and merchant beyond the seas"; but France led the way. The alliance between Francis I. and Suleiman the Magnificent gave her special advantages in the Levant, of which she was not slow to take advantage. Her success culminated in the capitulations signed in 1604, under the terms of which her consuls were given precedence over all others and were endowed with diplomatic immunities (e.g. freedom from arrest and from domiciliary visits), while the traders of all other nations were put under the protection of the French flag. It was not till 1675 that, under the first capitulations signed with Turkey, English consuls were established in the Ottoman empire. Ten years earlier, under the commercial treaty between England and Spain, they had been established in Spain.
The frequent wars of the succeeding century hindered the development of the consular system. Thus, though the system of consuls was regularly established in France by the ordinance of 1661, in 1760 France had consuls only in the Levant, Barbary, Italy, Spain and Portugal, while she discouraged the establishment of foreign consuls in her own ports as tending to infringe her own jurisdiction. It was not till the 19th century that the system developed universally. Hitherto consuls had, for the most part, been business men with no special qualification as regards training; but the French system, under which the consular service had been long established as part of the general civil service of the country, a system that had survived the Revolution unchanged, was gradually adopted by other nations; though, as in France, consuls not belonging to the regular service, and having an inferior status, continued to be appointed. In Great Britain the consular service was organized in 1825 (see below); in France the series of ordinances and laws by which its modern constitution was fixed began in 1833. In Germany progress was hindered by the political conditions of the country under the old Confederation; for the Hanse cities, which practically monopolized the oversea trade, lacked the means to establish a consular system on the French model. The present magnificently organized consular system of Germany is, then, one of the most remarkable outcomes of the establishment of the united empire. It was initiated by an act of the parliament of the North German Confederation (Nov. 8, 1867), subsequently incorporated in the statutes of the Empire, which laid down the principle that the German consulates were to be under the immediate jurisdiction of the president of the Confederation (later the emperor). The functions, duties and privileges of French and German consuls do not differ materially from those of British consuls; but there is a great difference in the organization and personnel of the consular service. In France, apart from the consuls élus or consuls marchands, who are mere consular agents, selected by the government from among the traders of a town where it desires to be represented, and unsalaried, the consular body proper was, by the decrees of July 10, 1880, and April 27, 1883, practically constituted a branch of the diplomatic service. It is recruited from the same sources, and its members are free to exchange into the corps diplomatique, or vice versa. Candidates for the diplomatic and consular services have to undergo the same training and pass the same examinations, i.e. in the constitutional, administrative and judicial organization of the various powers, in international law, commercial law and maritime law, in the history of treaties and in commercial and political geography, in political economy, and in the German and English languages. They have to serve three years abroad or attached to some ministerial department before they can enter for the examination which entitles them to an appointment as attaché or as consul suppléant. This assimilation of the consular to the diplomatic service remains peculiar to France. [3]
In Germany it was enacted by the law of February 28, 1873, that German consuls must be either trained jurists, or must have passed special examinations. The result of this system has been the establishment throughout the world of an elaborate network of trained commercial experts, directly responsible to the central government, and charged as one of their principal duties with the task of keeping the government informed of all that may be of interest to German traders. These annual consular reports were from the first regularly and promptly published in the Deutsche Handelsarchiv, and have contributed much to the wonderful expansion of German trade. 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 of "ex-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, custom 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 in 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 consul, whom the Cour Royale of Paris in 1842 held liable to arrest for debt. In the same way consuls are often exempt from all kinds of rates and taxes, and always from personal taxes. 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 right of consuls to exhibit their national arms and flag over the door of the bureau is not disputed.
Until the year 1825 British consuls were usually merchants engaged in trade in the foreign countries in which they acted as consuls, and their remuneration consisted entirely of fees. An act of that year, however, organized the consular service as a branch of the civil service, with payment by a fixed salary instead of by fees; consuls were forbidden also to engage in trade, and the management of the service was put under the control of a separate department of the foreign office, created for the purpose. In 1832 the restriction as to engaging in trade was withdrawn, except as regards salaried members of the British consular service.
The duty of consuls, under the "General Instructions to British Consuls," is to advise His 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 labour, manufacture, trade, commercial legislation and finance, technical education, exhibitions and conferences of the country or district in which he resides, and, generally, furnishes information on any subject which may be desired of him. He acts as a notary public; he draws up marine and commercial protests, attests documents brought to him, and, if necessary, draws up wills, powers of attorney, or conveyances. He celebrates marriages in accordance with the provisions of the Foreign Marriage Act 1892, and, where the ministrations of a clergyman cannot be obtained, reads the burial service. At a seaport he has certain duties to perform in connexion with the navy. In the absence of any of His Majesty's ships he is senior naval officer; he looks after men left behind as stragglers, or in hospital or prison, and sends them on in due course to the nearest ship. He is 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 particular 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. [4] 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 aboard 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 certificate of registry, and the official log-book; 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 commission of 2% 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 destination, 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 His 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, etc., under the Mercantile Shipping Acts. Consuls in the Ottoman empire, China, Siam and Korea have extensive judicial and executive powers.
Since the incorporation of the British consular service in the civil service there have been several proposals to "reform" the system with the view of increasing its usefulness, more particularly from the point of view of providing assistance to British trade abroad (see Reports of Special Committees of the House of Commons on the Consular Service, 1858, 1872, 1903). It has been frequently urged that British consuls in their commercial knowledge and intercourse with foreign merchants compare unfavourably, for example, with the consuls of the United States. It must be remembered, however, that there are points of striking dissimilarity between the duties of the consuls of these two countries. The American consul is necessarily brought much into touch with the trade and commerce of the country to which he is assigned through the system of consular invoices (see Ad Valorem); in his ordinary reports he is not confined to one stereotyped form, and when preparing special reports (a valuable feature of the United States consular service) he is liberally treated as regards any expense to which he has been put in obtaining information. He is practically free from the multifarious duties which the English consul has to discharge in connexion with the mercantile marine, nor has he to perform marriage ceremonies; and financially he is much better off, being allowed to retain as personal all fees obtained from his notarial duties. The Committee of 1903 was appointed to inquire, inter alia, whether the limits of age - 25 to 50 - for candidates should be altered, and whether service as a vice-consul for a certain period should be required to qualify for promotion to the rank of consul; whether means could not be adopted to give consular officers opportunities of increasing their practical knowledge of commercial matters and to bring them more into personal contact with the commercial community. The suggestions of the committee as the result of its inquiries were adopted in principle by the Foreign Office. The consular service is now grouped into three main divisions: (1) the general service; (2) Levant and Persia; and (3) China, Japan, Korea and Siam. The general consular service is graded into three divisions: first grade, consuls-general, salary £1000 with local allowances; second grade, consuls-general and consuls, salary £800 and local allowances; third grade, consuls, salary £600, with local allowances. Vice-consuls have an annual salary of £350, rising by annual increments of £15 to £450. In the general consular service appointments are sometimes made to the higher offices from the ranks, but more usually from a select list of nominees, who must pass a qualifying examination. A proportion of the vacancies are reserved for competition amongst candidates who have had actual commercial experience. Divisions 2 and 3 are recruited by open competition. There were at one time a small number of commercial agents whose business consisted in watching and reporting on the commerce, industries and products of special districts, and in answering inquiries on commercial subjects. Their duties were subsequently transferred to the consular staff, and a new class of officers, consular attachés, created. The consular attachés divide their time between special investigations abroad, and visits to manufacturing districts in the United Kingdom. The headquarters of the commercial attachés in Europe, except those at Paris and Constantinople, were transferred to London, without defined districts, in 1907 (see Report on the System of British Commercial Attachés and Agents, 1908, Cd. 3610). "Pro-consuls" are frequently appointed for the purpose of administering oaths, taking affidavits or affirmations, and performing notarial acts under the Commissioners for Oaths Acts 1889.
The position of the United States consuls is minutely described in the Regulations, Washington, 1896. Under various treaties and conventions they enjoy large privileges and jurisdiction. By the treaty of 1816 with Sweden 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. (Up to 1906 there were eighteen treaties containing this clause.) By convention with France in 1853 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 Borneo, China, Korea, Morocco, Persia, Siam, Tripoli and Turkey an extensive jurisdiction, civil and criminal, is exercised by treaty stipulation 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. To the consuls of other nations the United States government 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 are appointed by the president, and usually receive an exequatur. 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.
By a law of April 1906 the U.S. consular service was reorganized and graded, the office of consul-general being divided into seven classes, and that of consul into nine classes; and on June 27 an executive order was issued by President Roosevelt governing appointments and promotions.
See A. de Miltitz, Manuel des consuls (London and Berlin, 1837-1843); Baron Ferdinand de Cussy, Dictionnaire du diplomate et du consul (Leipzig, 1846), and Réglements consulaires des principaux états maritimes de l'Europe et de l'Amérique (ib., 1851); Tuson, British Consul's Manual (London, 1856); De Clercq, Guide pratique des consulats (1st ed., 1858, 5th ed. by de Vallat, Paris, 1898); C. J. Tarring, British Consular Jurisdiction in the East (London, 1887); Lippmann, Die Konsularjurisdiktion im Orient (Berlin, 1898); Zorn, Die Konsulargesetzgebung des deutschen Reichs (2nd ed., Berlin, 1901); v. König, Handbuch des deutschen Konsularwesens (6th ed., Berlin, 1902); Martens, Das deutsche Konsular-und Kolonialrecht (Leipzig, 1904); Malfatti di Monte Tretto, Handbuch des österreichischungarischen Konsularwesens (2 vols., 2nd ed., Vienna, 1904). See also the Parliamentary Reports referred to in the text. For British consuls much detailed information, including, e.g., minute directions for the uniforms of the various grades, will be found in the official Foreign Office List published annually. As regards American consuls, see C. L. Jones, The Consular Service of the U. S. A. (Philadelphia, 1906); Publications of Univ. of Pennsylvania, "Series in Pol. Econ. and Public Law," No. 18; and Fred. Van Dyne, Our Foreign Service (Rochester, N.Y., 1909).
[1] The title of consul was borne by the chief municipal officers of several cities of the south of France during the middle ages and up to the Revolution. The name was not due to their being the successors of the chiefs of the Roman municipia. They were members of the governing body known as the consulat, and in Latin documents are sometimes styled consiliarii, i.e. councillors. The consulat itself is not traceable beyond the 12th century.
[2] Particular quarters of mercantile cities were assigned to foreign traders and were placed under the jurisdiction of their own magistrates, variously styled syndics, provosts (praepositi), échevins (scabini), etc., who had power to fine or to expel from the quarter. The Hanseatic League (q.v.), particularly, had numerous settlements of this kind, the earliest being the Steelyard at London, established in the 13th century.
[3] i.e. as regards the organization of the system. Consuls, or consuls-general, of other countries have sometimes a diplomatic or quasi-diplomatic status. Consuls-general chargés d'affaires, e.g., rank as diplomatic agents. Of these the most notable is the British agent and consul-general in Egypt, whose position is unique. The diplomatic agent of Belgium at Buenos Aires, e.g., is minister-resident and consul-general, and the minister of Ecuador in London is consul-general chargé d'affaires.
[4] See also instructions to consuls prepared by the Board of Trade and approved by the secretary of state for foreign affairs.
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
