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, 5; Bynk. cap. 10
Martens, Droit des Gens, liv. 4, c. 3, 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. 1654 Serg. Const. Law,
225; Azuni, Mar. Law, part 1, c. 4, art. 8, 7.
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