vice-consuls of the most favored nations." In the convention of commerce between Great Britain and the United States of America of the 3d July 1815, it is declared, " that it shall be free for each of the two contracting parties respectively to appoint consuls for the protection of trade, to reside in the dominions and territories of either party; but before any consul shall act as such, he shall in the usual form be approved and admitted by the government to which he is sent: And it is hereby declared, that in case of illegal and improper conduct towards the laws or government of the country to which he is sent, such consul may either be punished according to law, if the laws will reach the case, or be sent back, the offended government assigning to the other the reasons for the same: And it is hereby declared, that either of the contracting parties may except from the residence of consuls such particular places as such party shall judge fit to be so excepted." In the recent treaty between Sweden and America, ratified on the 24th July 1818, it is thus stipulated: "The high contracting powers mutually grant the right of maintaining consuls, vice-consuls, or agents, in each other's ports and commercial towns, who shall enjoy full protection and receive every assistance necessary to enable them duly to execute their functions; but it is hereby expressly declared, that in the case of illegal or improper conduct against the laws or government of the country to which any such consul, vice-consul, or agent is sent, he may be punished conformably to the laws, be deprived of his functions, or dismissed by the offended government, the said government giving an account of the transaction to the other; it being however well understood, that the archives or documents relative to the affairs of the consulate shall be subject to no examination, but shall be carefully preserved, being placed under the seals of the said consul, and of the authority of the place where he shall have resided. The consuls or their substitutes shall, as such, have the right of acting as judges or arbiters in all cases of differences which may arise between the captains and crews of the vessels of the nation whose affairs are entrusted to their care. The respective governments shall have no right to interfere in these sort of affairs, except in the case of the conduct of the crews disturbing public order and tranquility in the country in which the vessel may happen to be, or in which the consul of the place may be obliged to call for the intervention and support of the executive power in order to cause his decision to be respected; it being however well under stood, that this sort of judgment or arbitration cannot deprive the contending parties of their right of appealing, on their return, to the judicial authorities of their country." The other treaties respecting consuls will be found in the last volume. Where the right of sending consuls to reside in their respective dominions is expressly stipulated in commercial treaties subsisting between the crown of Great Britain and the states to whom they are sent, either state may object to the particular person appointed to the office, and by their ambassador make requisition for the appointment of another, assigning proper reasons for their rejection of the first; but they cannot reject the king's commission: whereas those potentates with whom we have no commercial treaties stipulating for the appointment of a consul, may not only refuse the person but the commission itself, without violation of the peace and amity subsisting between the powers so refusing and this country; for the law of nations does not include this appointment, though it is usual to grant permission. And this difference is material in practice; for the consul, whose residence is founded upon a treaty, may proceed to much greater lengths in the exercise of his authority, than he who is only admitted by permission; for in the latter case many points, however clear, will be frequently disputed with such permissive consul by the magistracy of the place where he resides (1). The form of the English commission to a consul also varies when it is made under a treaty, from that of a commission to a mere permissive consul; the first expressly refers to the terms of the treaty, and invests the consul with all the jurisdiction and privileges declared by the treaty itself, as well as those given by the practice of the different states; whereas the latter is more general, and leaves open to discussion what may be that jurisdiction and those privileges. Formerly the English consul was elected by merchants from among the members of their own association, and was recommended by them to the secretary of state, who presented the nomination to the king, who under his sign manual issued a commission, which explained the nature and object of the appointment; but in more modern times the appointment has been (1) Beawes's Lex Merc. vol. 2. 416, 417. Warden, 241, 2. confided to the secretaries of state for the southern and northern provinces. The consuls of the southern kingdoms of Europe are under the direction of the former, and those of the northern under that of the latter; with the exception of a few, over which certain commercial corporate companies have an unlimited control (1). The commissions granted to British consuls were formerly issued in Latin, but are now in English. The former of such commissions, and some of those issued by foreign states, will be found in the Appendix (2). In some cases letters of instruction accompany the commission, and direct some of the more particular duties to be observed. (3) The nomination and appointment of the consul is to be notified to the sovereign of the state where he is to reside, according to the forms settled by the treaty which has authorized his establishment, or those which usage has introduced, in order to obtain from such sovereign a written declaration, approbation, barat, or exequatur, (des lettres de'exequatur) of the authority which recognizes his character, and authorizes him to exercise his functions (4). Such declaration of the sovereign is addressed to all his subjects, and recites the appointment of the foreign state, and that the sovereign having approved of the consul as such, states his will and pleasure and command that all his subjects do receive, countenance, and, as there may be occasion, favourably assist the consul in the exercise of his place, giving and allowing him all the privileges, immunities, and advantages thereto belonging; and in England the same is subscribed by the secretary of state (5). It is said, that in general the consul should cause his appointment and acceptance to be published in an assembly of merchants, and should register the same (6): but in England there is no register at the secretary of state's office, of the appointment, as if the consul were a public minister. (7) (1) Beawes, vol. 2, p. 416. Warden, 239-241. In France consuls are named by the king out of the vice-consuls, and the vice-consuls out of the eléves vice-consuls. Pardessus, 4 tom. 143, 4. (2) Post, vol. 3. 2 Beawes, 417, 418. Viveash v. Becker, 3 M. & S. 286. (3) Viveash v. Becker, 3 M. & S. 287. (4) Pardessus, 4 tom. 144. Warden, 104. 181. (5) See form, post, vol. 3. and Viveash v. Becker, 3 M. & S. 287. (6) Pardessus, 4 tom. 145, 6. (7) Viveash v. Becker. 3 M. & S. 290. tion, duties, and As the affairs of our trade, and the interests, rights, and privileges Of the qualifica of our merchants and seamen in foreign countries, are ordinarily office of a consul. left to the conduct of our British consuls, they cannot be too well qualified for this office. He should be well acquainted as well with the general commercial law of nations as with the treaties and local usages of the country where he is to reside, and his education and knowledge should enable him to take an enlarged view of the commercial interests of his own country, and by his own dignified and circumspect conduct impress the foreigners, with whom he may have intercourse, with a due respect for the nation of whose commercial interests he has the care (1). The instructions of an enlightened consul general to his colleagues contains this observation: " In a foreign country Frenchmen are generally judged of by their consuls, and the latter by their conduct; when therefore you reflect that it depends on us to cause the French name to be cherished and respected, you will feel all the dignity of your mission:" (2) To be useful to his country in arts, sciences, and manufactures, he should have no commercial engagements: services of this kind cannot be expected from, nor can they be performed by him, whose mind is absorbed in the pursuit of gain. He must not only desire, but have time to acquire and communicate knowledge. His conduct and usefulness will always be influenced by the circumstances in which he is placed. If he have not a regular and sufficient salary, he will be obliged to seek support as a merchant or factor, and his attention will be constantly directed more to his own private advantage than the general good of his country's commerce; and though he may not be tempted to act fraudulently, yet he will necessarily be negligent in the due performance of his office. Personal interest blinds men with regard to their public duties (3). The French strictly enjoin their consuls in all foreign countries not to carry on any commerce, under penalty of dismission from their office; but it has been observed, that the British consuls, contrary to sound policy, are still permitted to trade in all the ports where it is not prohibited, as it ought to be, by the sovereign of the country (4). However, it is (1) Warden on Consuls, 21, &c. Postl. Dic. tit. Consuls. (2) Per M. de Beaujour. Warden on Consuls, 209. p. 416. Marten on Consuls, 20. established that the character of consul does not protect that of merchant when united in the same person (1). An exception may be allowed, when it is not probable that the duties of the office will occupy more than a very small part of the time and attention of the consul. On still stronger grounds of policy, a consul must not accept of any commission or employment from the foreign state where he is to reside, which might diminish his zeal for, or at least prevent his attention to, the commercial interests of the country for which he is acting as consul (2). So the functions of a consul require that he be not a subject of the state where he resides, as in this case he would be obliged in all things to conform to its orders, and thus not be at liberty to perform the duties of his office (3). But, contrary to this principle, it is not unusual to appoint a native of the foreign state to be the consul there (4); as in Portugal, Spain, and Italy, where there is a scarcity of British subjects, and in which it has been customary for the consul general to appoint natives of such countries to act as their deputies at inferior ports; but this, it has been observed, is an unwarrantable and impolitic practice (5). A British consul, in order to be properly qualified for his employment, should take care to make himself master of the language used by the court and the magistracy of the country where he resides, so as to converse with ease upon subjects relating to his duties. If the common people of the port use another, he must acquire that also, that he may be enabled to settle little differences without troubling the magistracy of the place for the interposition of their authority, such as accidents happening in the harbour, of the ships of one nation running foul of and doing damage to each other. (6) He is to make himself acquainted, if he be not already, with the law of nations and treaties, with the tarif or specification of pp. 416-420. See observations in Warden, 237. Pardessus, 4 tom. 141. (1) Per Sir Wm. Scott in The Indian Chief, 3 Rob. Rep. 27. Beawes, vol. 2. p. 420. (2) Pardessus, 4 tom. 141. (3) Vattel, b. 2. c. 2. s. 34. Beawes, vol. 2. pp. 418, 419. Pardessus, 4 tom. 144. ; where an ex ception as to mere agents of commerce is allowed. (4) Viveash v. Becker, 3 M. & S. 296. The Indian Chief, 3 Rob. Rep. 27. (5) Beawes, vol. 2. pp. 418, 19. (6) Beawes's L. Merc. vol. 2. p. 421. Viveash v. Becker, 3 M. & S. 296. Warden on Consuls, 245. |