THE

BRITISH CONSUL'S MANUAL.

CHAPTER I.

THE ORIGIN OF CONSULAR INSTITUTIONS.

"Le temps des Ambassadeurs est passé, celui des Consuls est revenu."— M. DE CHATEAUBRIAND.

THE

HE word Consul, derived from the Latin consulere, to counsel and advise, does not seem to have been employed as an authoritative title until about 509 B.C., at which period the first Consuls elected for the Roman republic were Lucius Junius Brutus and Tarquinius Collatinus, who were nominated every year. The decree appointing them states as follows:-" Consules appellavit pro regibus ut, consulere se civibus suis debere, meminissent."

During the existence of the Roman Empire, the title and authority of Consul appears many times to have been laid aside, and fallen into disuse. In the reign of Julius Cæsar, whose ambition led him to discard it, the purple of the emperor was elevated therefrom; and, indeed, in the year 542, in the reign of Justinian, it was wholly dropped. From this epoch (although this appellation was sometimes annexed to the names of favourite ministers) it almost entirely remained neglected until about the year 1000, when we find this title among the chronicles of the city of Pisa, whose citizens may claim the first merit of having conferred the same upon a person delegated to act with authority for the purpose of aiding and assisting by his counsel and advice the mercantile community of his country. A magistrate so appointed was called a Consul, and we have a direct confirmation of this fact in perusing the statutes of this city, bearing date the year 1169, which vest in them by the name of Consules marinariorum et mercatorum, authority to judge

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and act judicially in maritime and mercantile causes, as also to give their counsel and advice in such cases when called upon to do It was also their duty to further, by every means in their power, the maritime and commercial interests of their country. The following states adopted like institutions, most of them taking the one erected by the Pisans as their example:

As these Consuls, however, were only magistrates, authorized to act for the maritime and mercantile interests of their several countries, in the harbours of such states; before proceeding to consider the date and authorities which deputed them to reside in foreign countries for the like purpose, we will take into consideration the early institutions which gave rise to the above judicial maritime and mercantile authorities. In doing so, we must direct the attention of our readers to more ancient epochs. As early as 1300 B.C. the ancient Egyptians permitted maritime cases to be decided by the high priest, in a particular temple dedicated to the gods for that purpose. In the years 526–579 B.C., the Carthaginians, Phoenicians, and Tyrians took under their notice the appointment of "Judicium mercatorium et maritimum." The most renowned, however, among the ancient mercantile laws is the celebrated Lex Rhodia; the Grecians also formed many and celebrated judicial courts for maritime and commercial cases, to which even Demosthenes gave his utmost attention, and the Spartans appointed their Proxene for the same purpose. Rome, also, under the Emperor Justinian, delegated persons under the authority of his celebrated code to act with similar power. These institutions, gradually diffusing themselves among all maritime countries, were partly lost sight of during the terrible conflicts which overran the Spartan, Greek, and Roman Empires, and after decaying, and being revived many times, began to manifest a greater probability of spreading amongst the mercantile community of the world.

During the years 1000-1400, there were many laws relating thereto decreed among the West Goths and the Italian States, viz., the laws of Oleron, Amalfi, and the celebrated Consolato del Mare, which latter, according to Piantanida, was adopted by the following countries:

These mercantile institutions, of which the temple established at Memphis must be considered the first stone of the present judicial authority of the Consul-the title of which seems, as before stated, in the minds of the Pisans, to have been the best clothing for their mercantile and maritime Judges, as giving them by this appellation a high standing, and fully qualifying them for such a post in the eyes of the people, by the signification attached to their name. In fact the high authority annexed to the appellation of Consul, connected with the ancient tribunals, from whose root they sprang, fully carries out in all its bearings the idea of a Consul, and the purposes for which he is appointed. No better signification could have been found; the title of Consul, derived from the highest authorities, combined with the most ancient commercial rights, was transmuted into one name-a name renowned in the annals of history, and which may in time not only prove of the ̈* first advantage to the state, but may supersede that of Ambassadors.

The first Consuls appointed by England were, Leonardo Strozzi, at Pisa, in 1485; Censio de Menesava Lesques, in 1522, at Candia; and Benoit Justianiani, in 1531, at Scio. Why the English Government appointed foreigners instead of Englishmen, will be taken into consideration in the case of Leonardo Strozzi, in the next chapter.

From this epoch many other Consuls were nominated; and the Consular System began to spread from year to year, and will continue to do so under proper management, promoting the best and most vital interests of the country.

It would scarcely fall under our present object to enumerate the Consular service of other countries; but we cannot lose sight of that of the Hanseatic League, which had more than 100 Consulates in different parts of the world, was the most extensive of the age, and many wise and salutary mercantile laws were issued and put in force by the magistracy of Lubeck.

The earliest statutes regulating the mercantile and maritime law of England, after the signing of the Magna Charta, were those of the years 1283 and 1285 (11 Ed. I. Statute of Acton Burnet, and 15 Ed. I. statute 3, cap. 1), in which special attention was directed to the mercantile community. These, however, by the commotion of the times were not attended to; and, in fact, became almost null and void. Several treaties were also concluded about this time, having reference

to Consuls, between England and foreign countries; amongst them we must place those of the reigns of Henry IV., Edward IV., and Henry VIII.

Since this epoch the commercial intercourse of England with foreign countries has gone on increasing both by treaty and otherwise; and which has become the great forerunner of that nation's greatness.

In concluding this chapter, we can only regret that time and space will not permit us to dwell upon the ancient commercial institutions of Venice, Pisa, and many others of which Miltitz so ably treats.

IN

CHAPTER II.

ON THE QUALIFICATIONS OF A CONSUL

N respect to the qualifications requisite for a Consul, we must take into consideration what might disqualify him from occupying such a post with the integrity required from any one filling that office. One of the two most important disqualifications would be, that of his not being a subject of the power by whom he is appointed; many of the most learned writers on the subject have discoursed most emphatically upon the reasons why a Consul should not be any other than a subject of the power he represents, and it cannot be supposed that he could have the interests of the country so much to heart as were he a subject of the State he was nominated by. Borel in his work "De l'Origine et des Fonctions des Consuls," page 32, ch. iv., says, "Une des premières qualités d'un Consul, c'est de ne pas être sujet de l'état où il réside, car il n'aurait pas l'indépendence nécessaire pour exercer les fonctions de sa place avec cette liberté qui convient à celui qui est chargé des affaires d'un souverain. Il ne peut recevoir des ordres que de lui, et ne doit être comptable qu'envers lui de ses actions. Sans cette condition, l'admission d'un Consul dans un état est presque vaine et illusoire."

It is unnecessary to recite the numerous opinions which have been passed on this subject, and we can only, in quoting that of Vattel, leave to the judgment and conscience of any upright-minded man; whether it can be supposed that one of another race could represent the interests of a neighbouring one, with credit, or for the welfare of such race, as one of its kindred.

"Les fonctions exigent premièrement, qu'il ne soit point sujet de l'état où il réside, car il serait obligé d'en suivre les ordres en toutes choses, et n'aurait pas la liberté de faire les fonctions de sa charge." V'attel, 1. 2, c. 2, § 34.

The other most important disqualification for a Consul is, his engaging in commercial pursuits; and it is impossible that any one so occupied can fulfil the important duties he has to discharge. The highest authorities have disclaimed the idea of a Consul exercising his functions when he is so engaged. Pardessus, Martens, and others follow on the subject; and it is only a matter of regret that the British Government have, since 1832, allowed many important consular representatives to trade, which is neither compatible with the dignity of their office, nor hinges with their consular duties. Warden justly writes:-"To be useful to his country in arts, sciences, and manufactures a Consul must have no commercial engagements. Services of this kind cannot be expected from him, as they cannot be performed by him, whose mind is absorbed in the pursuits of gain. If he have not a regular salary, and be obliged to seek support as a merchant or factor, his eye must be constantly directed to his private advantage; and in this position he insensibly adopts the doctrine of the trader: 'Every man for himself, and God Almighty for us all.'”

De Cussy draws a conclusion to the same effect; he says, that Consuls ought to be "sujets du prince qui les institue, et qu'ils ne soient jamais pris parmi les négociants établis dans la localité où ils doivent exercer leur charge."-—Section iii., § 1, p. 62. After quoting many learned opinions on this head, he comes to the following conclusion:-"Un Consul ne doit pas être négociant."-Sect. iii., same chapter.

Borel has a very good opinion on the subject; he writes:-" Le Consul ne doit pas faire le commerce, car ses fonctions se trouvent souvent incompatibles avec l'état de négociant. Assujeté alors aux lois du pays pour ses affaires particulières, non seulement il ne doit pas prétendre à la jouissance du droit des gens, mais il s'expose au danger de compromettre la dignité de son souverain, en cas de faillites et dans les autres évènements fâcheux que les chances du commerce entrainent à leur suite."

Professor Newman, of Vienna, who has recently published a work on the Consular Service, in regretting that his Government has not followed these principles, writes as follows:-"Der Consul soll nicht zugleich Kaufmann sein, denn seine Functionen sind sehr häufig, um nicht zu sagen in der Regel und dem Wesen nach, mit der Beschäftigung des Kaufmanns unvereinbar. Als Kaufmann dem Landesgesetzen unterworfen kann er auf Behandlung nach Volkenrecht keinen Anspruch machen, setzt er die Würde des ihn bestellenden Souveräns, die ihm anvertrauten Interessen der Unterthanen dieser Souveräns mannigfacher Gefahrdungen und Verlegenheiten aus."

Having thus taken into consideration the two most important things