CONSUL, government, commerce. Consuls are commercial agent's appointed by a
government to reside in the seaports of a foreign country, and commissioned
to watch over the commercial rights and privileges of the nation deputing
them. A vice-consul is one acting in the place of a consul.
2. Consuls have been greatly multiplied. Their duties and privileges
are now generally limited, defined and secured by commercial treaties, or by
the laws of the countries they represent. As a general rule, it may be laid
down that they represent the subjects or citizens of their own nation, not
otherwise represented. Bee, R. 209 3 Wheat. R. 435; 6. Wheat. R., 152; 10
Wheat. 66; 1 Mason's R. 14.
3. This subject will be considered by a view, first, of the
appointment, duties, powers, rights, and liabilities of American consuls;
and secondly, of the recognition, duties, rights, and liabilities of foreign
consuls.
4.-1. Of American consuls. First. The president authorized by the
Constitution of the United States, art. 2, s. 2, el. 3, to nominate, and, by
and with the advice and consent of the senate, appoint consuls.
5.-Secondly. Each consul and vice-consul is required, before he
enters on the execution of his office, to give bond, with such sureties as
shall be approved by the secretary of state, in a sum not less than two
thousand nor more than ten thousand dollars, conditioned for the true and
faithful discharge of the duties of his office, and also for truly
accounting for all moneys, goods and effects which may come into his
possession by virtue of the act of 14th April, 1792, which bond is to be
lodged in the office of the secretary of State. Act of April 14, 1792, sect.
6.
6.-Thirdly. They have the power and are required to perform many
duties in relation to the commerce of the United States and towards masters
of ships, mariners, and other citizens of the United States; among these are
the authority to receive protests or declarations which captains, masters,
crews, passengers, merchants, and others make relating to American commerce;
they are required to administer on the estate of American citizens, dying
within their consulate, and leaving no legal representatives, when the laws
of the country permit it; [see 2 Curt. Ecc. R. 241] to take charge and
secure the effects of stranded American vessels in the absence of the
master, owner or consignee; to settle disputes between masters of vessels
and the mariners; to provide for destitute seamen within their consulate,
and send them to the United States, at the public expense. See Act of 14th
April, 1792; Act of 28th February, 1803, ch. 62; Act of 20th July, 1840, Ch.
23. The consuls are also authorized to make certificates of certain facts in
certain cases, which receive faith and credit in the courts of the United
States. But those consular certificates are not to be received in evidence,
unless they are given in the performance of a consular function; 2 Cranch,
R. 187; Paine, R. 594; 2 Wash. C. C. R. 478; 1 Litt. R. 71; nor are they
evidence, between persons not parties or privies to the transaction, of any
fact, unless, either expressly or impliedly, made so by statute. 2 Sumn. R.
355.
7.-Fourthly. Their rights are to be protected agreeably to the laws
of nations, and of the treaties made between the nation to which they are
sent, and the United States. They are entitled, by the act of 14th April,
1792, s. 4, to receive certain fees, which are there enumerated. And the
consuls in certain places, as London, Paris, and the Barbary states,
receive, besides, a salary.
8.-Fifthly. A consul is liable for negligence or omission to perform,
seasonably, the duties imposed upon him, or for any malversation or abuse of
power, to any injured person, for all damages occasioned thereby; and for
all malversation and corrupt conduct in office, a consul is liable to
indictment, and, on conviction by any court of competent jurisdiction, shall
be fined not less than one, nor more than ten thousand dollars; and be
imprisoned not less than one nor more than five years. Act of July 20, 1840,
ch. 23, cl. 18. The act of February 28, 1803, ss. 7 and 8, imposes heavy
penalties for falsely and knowingly certifying that property belonging to
foreigners is the property of citizens of the United States; or for granting
a passport, or other paper, certifying that any alien, knowing him or her to
be such, is a citizen of the United States.
9. The duties of consuls residing on the Barbary coast are prescribed
by a particular statute. Act of May 1, 1810, S. 4.
10.-2. Of foreign consuls. First. Before a consul can perform any
duties in the United States, he must be recognized by the president of the
United States, and have received his exequatur. (q.v.)
11.-Secondly. A consul is clothed only with authority for commercial
purposes, and he has a right to interpose claims for the restitution of
property belonging to the citizens or subjects of the country he represents;
10 Wheat. R. 66; 1 Mason R. 14; See, R. 209; 6 Wheat. R. 152; but he is not
to be considered as a minister or diplomatic Agent, entrusted by virtue of
his office to represent his sovereign in negotiations with foreign states. 3
Wheat, R. 435.
12.-Thirdly. Consuls are generally invested with special privileges by
local laws and usages, or by international compact; but by the laws of
nations they are not entitled to the peculiar immunities of ambassadors. In
civil and criminal cases, they are subject to the local laws in the same
manner with other foreign residents owing a temporary allegiance to the
state. Wicquefort, De l'Ambassadeur, liv. 1, Sec. 5; Bynk. cap. 10 Martens,
Droit des Gens, liv. 4, c. 3, Sec. 148. In the United States, the act of
September 24th, 1789, s. 13 gives to the supreme court original, but not
exclusive jurisdiction of all suits in which a consul or vice-consul shall
be a party. The act last cited, section 9, gives to the district courts of
the United States, jurisdiction exclusively of the courts of the several
states, of all suits against consuls or vice-consuls, except for offences
where whipping exceeding thirty stripes, a fine exceeding one hundred
dollars, or a term of imprisonment exceeding six months, is inflicted. For
offences punishable beyond these penalties, the circuit has jurisdiction in
the case of consuls. 5 S. & R. 545. See 1 Binn. 143; 2 Dall. 299; 2 N. & M.
217; 3 Pick. R. 80; 1 Green, R. 107; 17 Johns. 10; 6 Pet. R. 41; 7 Pet. R.
276; 6 Wend. 327.
13.-Fourthly. His functions may be suspended at any time by the
government to which he is sent, and his exequatur revoked. In general, a
consul is not liable, personally, on a contract made in his official
capacity on account of his government. 3 Dall. 384.
14. During the middle ages, the term consul was sometimes applied to
ordinary judges; and, in the Levant, maritime judges are yet called consuls.
1 Boul. Paty, Dr. Mar. Tit. Prel. s. 2, p. 57.
15. Among the Romans, consuls were chief magistrates who were annually
elected by the people, and were invested with powers and functions similar
to those of kings. See, generally, Abbott on Ship. 210; 2 Bro. Civ. Law,
503; Merl. Repert. h.t.; Ayl. Pand. 160; Warden on Consuls; Marten on
Consuls; Borel, de l'Origine, et des Fonctions des Consuls; Rawle on the
Const. 222, 223; Story on the Const. Sec. 1654 Serg. Const. Law, 225; Azuni,
Mar. Law, part 1, c. 4, art. 8, Sec. 7.
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