英文法律词典 C-101

CONSUETUDINES FEUDORUM. The name of an institute of the feudal¹ system and usages, compiled about the year 1170, by authority of the emperor Frederic, surnamed Barbarossa. Ersk. Inst. B. 2, t. 3, n. 5. CONSUL², government, commerce. Consuls³ are commercial agent's appointed by a government to reside in the seaports⁴ of a foreign country, and commissioned to watch over the commercial rights an@ privileges of the nation deputing them. A vice-consul is one acting⁵ 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 secondly⁶, of the recognition, duties, rights, and liabilities of foreign consuls.

4. - 1. Of American consuls. First. The president authorized⁷ 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 accounting⁸ for all moneys, goods and effects which may come into his possession by virtue⁹ of the act of 14th April, 1792, which bond is to be lodged¹⁰ in the office of the secretary of State. Act of April 14, 1792, sect¹¹. 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, mariners¹², 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 consulate¹⁴, and leaving no legal representatives, when the laws of the country permit it; [see 2 Curt¹⁵. Ecc. R. 241] to take charge and secure the effects of stranded¹⁶ American vessels¹⁷ in the absence of the master, owner or consignee¹⁸; to settle disputes between masters of vessels and the mariners; to provide for destitute¹⁹ seamen²⁰ 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 consular²¹ 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 privies²² to the transaction, of any fact, unless, either expressly or impliedly, made so by statute²³. 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 enumerated²⁴. And the consuls in certain places, as London, Paris, and the Barbary states, receive, besides, a salary.

8. - Fifthly. A consul is liable for negligence²⁵ or omission²⁶ to perform, seasonably, the duties imposed upon him, or for any malversation or abuse of power, to any injured person, for all damages occasioned thereby²⁷; and for all malversation and corrupt²⁸ conduct in office, a consul is liable to indictment²⁹, and, on conviction by any court of competent jurisdiction³⁰, shall be fined not less than one, nor more than ten thousand dollars; and be imprisoned³¹ 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 certifying³² 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 restitution³³ 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, entrusted³⁴ by virtue of his office to represent his sovereign in negotiations³⁵ 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 peculiar³⁶ immunities³⁷ 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 supreme³⁸ 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 imprisonment³⁹ exceeding six months, is inflicted⁴⁰. 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 revoked⁴¹. 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 applied⁴² to ordinary judges; and, in the Levant, maritime⁴³ judges are yet called consuls. 1 Boul. Paty, Dr. Mar¹³. Tit. Prel. s. 2, p. 57.

15. Among the Romans, consuls were chief magistrates⁴⁴ who were annually⁴⁵ 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; Warden⁴⁶ 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.