Development of the Institution of Consuls.
§ 418. The roots of the consular institution go back to the second half of the Middle Ages. In the commercial towns of Italy, Spain, and France the merchants used to appoint by election one or more of their fellow-merchants as arbitrators in commercial disputes, who were called Juges Consuls or Consuls Marchands. When, between and after the Crusades, Italian, Spanish, and French merchants settled down in the Eastern countries, founding factories, they brought the institution of consuls with them, the merchants belonging to the same nation electing their own consul. The competence of these consuls became, however, more and more enlarged through treaties, so-called "Capitulations," between the home States of the merchants and the Mohammedan monarchs on whose territories these merchants had settled down.[770] The competence of consuls comprised at last the whole civil and criminal jurisdiction over, and protection of, the privileges, the life, and the property of their countrymen. From the East the institution of consuls was transferred to the West. Thus, in the fifteenth century Italian consuls existed in the Netherlands and in London, English consuls in the Netherlands, Sweden, Norway, Denmark, Italy (Pisa). These consuls in the West exercised, just as those in the East, exclusive civil and criminal jurisdiction over the merchants of their nationality. But the position of the consuls in the West decayed in the beginning of the seventeenth century through the influence of the rising permanent legations on the one hand, and, on the other, from the fact that everywhere foreign merchants were brought under the civil and criminal jurisdiction of the State in which they resided. This change in their competence altered the position of consuls in the Christian States of the West altogether. Their functions now shrank into a general supervision of the commerce and navigation of their home States, and into a kind of protection of the commercial interests of their countrymen. Consequently, they did not receive much notice in the seventeenth and eighteenth centuries, and it was not until the nineteenth century that the general development of international commerce, navigation, and shipping drew the attention of the Governments again to the value and importance of the institution of consuls. The institution was now systematically developed. The position of the consuls, their functions, and their privileges, were the subjects of stipulations either in commercial treaties or in special consular treaties,[771] and the several States enacted statutes regarding the duties of their consuls abroad, such as the Consular Act passed by England in 1826.[772]
[770] See Twiss, I. §§ 253-263.
[771] Phillimore, II. § 255, gives a list of such treaties.
[772] 6 Geo. IV. c. 87.
General Character of Consuls.
§ 419. Nowadays consuls are agents of States residing abroad for purposes of various kinds, but mainly in the interests of commerce and navigation of the appointing State. As they are not diplomatic representatives, they do not enjoy the privileges of diplomatists. Nor have they, ordinarily, anything to do with intercourse between their home State and the State in which they reside. But these rules have exceptions. Consuls of Christian Powers in non-Christian States, Japan now excepted, have retained their former competence and exercise full civil and criminal jurisdiction over their countrymen. And sometimes consuls are charged with the tasks which are regularly fulfilled by diplomatic representatives. Thus, in States under suzerainty the Powers are frequently represented by consuls, who transact all the business otherwise transacted by diplomatic representatives, and who have, therefore, often the title of "Diplomatic Agents." Thus, too, on occasions small States, instead of accrediting diplomatic envoys to another State, send only a consul thither, who combines the consular functions with those of a diplomatic envoy. It must, however, be emphasised that consuls thereby neither become diplomatic envoys, although they may have the title of "Diplomatic Agents," nor enjoy the diplomatic envoys' privileges, if such privileges are not specially provided for by treaties between the home State and the State in which they reside. Different, however, is the case in which a consul is at the same time accredited as Chargé d'Affaires, and in which, therefore, he combines two different offices; for as Chargé d'Affaires he is a diplomatic envoy and enjoys all the privileges of such an envoy, provided he has received a Letter of Credence.
II CONSULAR ORGANISATION
Hall, "Foreign Powers and Jurisdiction," § 13—Phillimore, II. §§ 253-254—Halleck, I. p. 371—Taylor, § 528—Moore, V. § 696—Ullmann, § 57—Bulmerincq in Holtzendorff, III. pp. 695-701—Rivier, I. § 41—Calvo, III. §§ 1373-1376—Bonfils, Nos. 743-748—Pradier-Fodéré, IV. §§ 2050-2055—Mérignhac, II. pp. 320-333—Martens, II. § 20—Stowell, "Le Consul," pp. 186-206—"General Instructions for His Majesty's Consular Officers" (1907).
Different kinds of Consuls.