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“ The consuls and vice-consuls of his Majesty are, by express enactment (46 Geos c. 98. $ 9.), empowered to administer oaths in all cases respecting quarantine, in like manner as if they were magistrates of the several towns or places where they respectively reside. It is also laid down, that a consul is to attend, if requested, all arbitrations where property is concerned between masters of British ships and the freighters, being inhabitants of the place where he resides." -- ( Chitty on Commercial Law, vol. i. pp. 58 -61., and the numerous authorities there quoted.)
Any individual, whether he be a subject of the state by which he is appointed, or ot another, may be selected to fill the office of consul, provided he be approved and admitted by the government in whose territory he is to reside. In most instances, however, but not always, consuls are the subjects of the state appointing them.
Much, however, of the peculiar duties of a consul must always depend on the nature of the intercourse with the country to which he is sent, and of the instructions given him. British consuls are regularly supplied with copies of all acts relating to tracle and navigation, quarantine, slave trade suppression, emigration, &c., and with the treaties between this and other countries, and must, of course, shape their conduct accordingly. They are strictly forbidden from corresponding with private parties on public matters We subjoin an extract from the General Instructions for British Consuls.
" He will bear in mind that it is his principal duty to protect and promote the lawful trarle and trading interests of Great Britain, by every fair and proper means, taking care to conform to the lans and regulations in question; and whilst he is supporting the lawlul trade of Great Britain, he will take special notice of all prohibitions with respect to the export or import of specified articles, as well on the part of the state in which he resides, as of the government of Great Britain, so that he may cantion all British subjects against carrying on an illicit cominerce to the detrinient of the revenue, and in violation of the laws and regulations, of either country; and he will not fail to give to this department immediate notice of any attempt to contravene those laws and regulations.
“ The consui will give his best advice and assistance, when called upon, to his Majesty's trading subjects, quieting their differences, promoting peace, barmony, and good-will amongst them, and conciliating as much as possible the subjects of the two countries, upon all points of difference which may fall under his cognizance. In the event of any attempt being made to injure British subjects, either in their persons or property, he will uphold their righiful interests, and the privileges secured to them by treaty. by due representation in the proper official quarter. He will, at the same time, le careful to conduct himself with mildness and moderation in all his transactions with the public anthorities, and be will not upon any account urge claims, on behalf of his Majesty's subjects, to which they are not justis and fairly entitled. If redress cannot be obtained from the local administration, or if the matter of complaint be not within their jurisdiction, the consul will apply to his Majesty's consul-general, or to his Majesty's minister, if there be no consul-general in the country wherein he resides, in order that he may make a representation to the higher authorities, or take such other steps in the case as he may think proper ; and the consul will pay strict attention to the instructions which he may receive from the minister or consul-general."
Emoluments of Consuls. Prohibition of Trading, &c. The emoluments of our consuls were, until these few years, principally derived from certain fees, depending on the tonnage, length of the voyages, &c. of the British ships entering and clearing out of the limits of their consulships. But this mode of remunerating them was materially changed by the act of 6 Geo. 4. c. 87. The fees payable under this act --(see post) --are but inconsiderable: but the deficiency has been, partly at least, compensated by salaries allowed by government.
At present British consuls are, in some instances, permitted to carry on trade, while in others they are interdicted from having any thing to do with it. The principle on which the distinction is made does not seem very obvious. We observe, for example, that the consul at Petersburg, who must have a great deal to do, is allowed to trade; while the consul at Odessa, whose duties must be much lighter, is denied this privilege. There is the same distinction between the consuls at Venice and Trieste ; the latter, whose duties must be the heavier of the two, being allowed to act as a merchant, while the other is not. If this distinction must be kept up, the preferable plan would seem to be to interdict all consuls resident at the great ports, and those resident at other ports, principally in the character of political agents, from trading; and to permit it to others. The public duties of the former are either quite sufficient wholly to engross their attention, or they are of such a kind as would make it very inexpedient for those employed in them to be occupied in mercantile pursuits ; in the case of the smaller class of ports, but little frequented by British ships, and where the consuls have no peculiar political functions to discharge, there is a less urgent necessity for prohibiting them from carrying on business on their own account. At the same time, however, we are clearly of opinion that it would in all cases be better not to allow consuls to engage, either directly or indirectly, in any sort of industrious undertaking. The main end and purpose of their institution is the facilitating of commerce with the nation in which they reside; and in furtherance of such object they ought, on all occasions, to communicate the fullest and earliest information in their power touching commercial matters, not only to the government that appoints them, but to such of its subjects as may apply for their advice and assistance. But, however advantageous publicity may be to others, it may in various ways be extremely hostile to the interests of the consul considered in his capacity of a merchant; and, when his own advantage and his public duty are set in opposition, it requires little sagacity to discover
which will have the ascendancy. Hence the fair presumption is, that a trading consul will rather endeavour to profit by the peculiar information his situation may enable him to obtain, than to communicate it to others. His interests as a merchant must frequently, also, even when such is not really the case, appear to be in opposition to those of the parties for whose behoof he is said to be appointed ; and ur.der such circumstances, his proceedings, however fair, will always be liable to the suspicion of partiality. It is material, also, to observe that mercantile consuls labour under peculiar disadvantages in the obtaining of information. If a consul, not engaged in business, make a proper application to a public functionary, or merchant, for information as to any subject with which they may be acquainted, he will, in most instances, learn all that they know. But it is obvious, on general principles, and we have been assured of the fact by some of the most intelligent officers of the class, that if a trading consul make the same aplication, the chances are 10 to 1 he will either learn nothing, or nothing that is not false or misleading. The inquiries of the former excite no jealousy, those of the latter invariably do. The former is known to be actuated only by a feeling of liberal curiosity, or by a wish properly to discharge his public duties ; but the latter, being engaged in business, gets credit only for selfish and interested motives, and is believed to be seeking the information merely that he may turn it to his own account. A mercantile consul is, therefore, uniformly the object of the suspicions of all parties, both of his countrymen, and of the foreigners amongst whom he resides. Instead of being, as he ought to be, an independent public functionary, he necessarily gets entangled in the cabals and intrigues of those whose differences it is his province to conciliate. He is tempted, also, to engage in smuggling adventures, contrary to his duty, and highly injurious to the character of his nation. And though he should be proof against temptations of this sort, he is, like all other individuals, subject to misfortune and bankruptcy; and may, in this way, bring diseredit and embarrassment on the government that appoints him. These reasons seem to be far more than sufficient to vindicate the policy of interdicting consuls from trading. But were it otherwise, it is enough to decide the question to state, that if they be made properly to perform the functions of their office, it will occupy every moment of their time. To the argument in favour of the existing system derived from economical considerations, we do not attach the smallest weight. To attempt to save a few thousand pounds by allowing an important class of public functionaries to engage in avocations inconsistent with their duty, and destructive of their utility, would be something the very reverse of economy.
Cost of the Establishmeni. Improrements made in it. - We had occasion, in the former edition of this work, to complain of the cost and inadequacy of our consular establishment. But its expense has since been very much, and, in some instances perhaps, too much, reduced ; at the same time that measures have been taken for increasing the duties of the consuis, by making them furnish details as to the trade, manufactures, duties, prices, &c. of the districts in which their consulships are situated. Hitherto this important department of what ought to be the peculiar duty of a consul has been most strangely neglected; but if it be properly attended to, it will occupy a large portion of the consul's time, and will be a field for the display of superior talents. Some of the answers made by the consuls to the Circular Queries prepared for the former edition of this work were drawn up with great care and intelligence, and refiected much credit on their authors. There were a good many certainly of a very inferior description; but this is not to be wondered at - it being hardly possible for those who have not given a good deal of their time to such subjects, to make a proper reply to queries relating to them. And if the system is to be perfected to the degree of which it is susceptible, the salaries allowed to the consuls ought to be such as to afford a sufficient remuneration for the services of gentlemen of character, familiar with the principles of public law, commerce, and statistics; and such only ought to be nominated to consular situations. We subjoin that part of the General Instructions for the Consuls that has reference to statistical inquiries.
"The consul will forward to the secretary of state, in duplicate, so soon as the information he can collect will enable him so to do, but at any rate within a period of 6 months from the date of his arrival at his residence, a general Report on the trade of the place and district, specif;ing the commodities, as well of the export as import trade, and the countries which supply the latter, together with the increase or decline in late years, and the probable increase or decline to be expected, and the causes in both cases. He will state the general regulations with respect to trade at the place where he is resident, and their effects. He will give the average market prices within the year of the several articles of export and import; he will particularise what articles, if any, are absolutely prohibited to be imported into the country wherein he resides; what articles are prohibited to be imported from any other places than from the place of their growth or production : whether there be any privileges of importation, and what those privileges are, in favour or ships that are of the built of, or belonging to the country wherein he resides ; whether there be any difference in the duty on goods when imported into that country in a foreign ship, and if so, whether it be general, or applicable only to particular articles; what are the rates of duty payable on goods imported into the said country; whether there be any tonnage duty or other port dues, and what, payable on shipping entering af, or clearing from, the pols
of that country; whether there be any (and, If so, what) ports in that country wherein goods may be warehoused on impurtation, and afterwards exported with or without payment of any duties, and under what regulations."
He is also to transmit an annual statement of the trade with the principal ports of his consulships; and quarterly returns of the prices of corn, &c. Mr. Macgregor’s Tarifs have been mostly compiled from these returns.
The following are the provisions of the act 6 Geo. 4. c. 87. with respect to the salaries and charges of consuls :
Salaries to Consuls. --" Whereas the provision which hath hitherto been made for the maintenance and support of the consuls general and consuls appointed by his Majesty to reside within the dominions of sovereigns and foreign states in amity with his Majesty, is inadequate to the inaintenance and support of such consuls general and consuls, and it is expedient to make further and due provisions for that purpose;" it is therefore enacted, that it shall be lawful for his Majesty, by any orders to be issued by the advice of his privy council, to grant to all or any of the consuls general or consuls appointed by his Majesty to reside within any of the dominions of any sovereign or foreign state or power in amity with his Majesty, such reasonable salaries as to his Majesty shall seem meet, and by such advice from time to time to alter, increase, or diminish any such salaries or salary as occasion may require.-- (6 Geo. 4. c.57.
Terms on which Salnries shall be granted. Leave of Absence. - Such salaries shall be issued and paid to such consuls general and consuls without fee or deduction ; provided that all such salaries le granted during his Majesty's picasure, and not otherwise, and be held and enjoyed by such consuls general and consuls so long only as they shall be actually resident at the places at which they may be so appointed to reside, and discharging the duties of such their offices : provided nevertheless, that in case his Majesty shall, by any order to be for that purpose issued through one of his principal secretaries of state, grant to any such consul general or cousul leave of absence from the place to which he may be so appointed, such consul general or consul shall be entitled to receive the whole, or such part as to his Majesty shall seem meet, of the salary accruing during such period of absence. - $ 2.
Salaries in lieu of Pers formerly paid. Consuls not to take other than the Fees hereinafter mentioned The salaries so to be granted shall be taken by the consuls general and consuls as a compensation for all salaries heretofore granted, and all fees of office and gratuities heretofore taken by them from ihe masters or commanders of British vessels, or from any other person, for any duties or services by such consils general or consuls done or performed for any such persons; and no such consuls general or consuls shall, from the 1st of January, 1826, be entitled, on account of any thing by him done in the execution of such his office, or for any service by him rendered to any masters or commanders of British vessels, or to any other person in the execution of such his office, to ask or take any fees, recompence, gratuity, compensation, or reward, or any sum of money, save as hereinafter is excepted. -$3.
Certain Fres still allowed to be taken. - It shall be lar ful for all consuls general and consuls appointed by his Majesty, and resident within the dominions of any sovereign, or any foreign state or power in amity with his Majesty, to accept the several sees particularly mentioned in the iables to this present act annexed, marked with the letters A and B, for the several things and official acts and deeds par. ticularly mentioned in the said schedules ; and it shall be lawful for his Majesty, by any orders to be by him made, by the advice of his privy council, from time to time, as occasion may require, to diminish, or wholly to abolish, all or any of the sees aforesaid, and to establish and authorise the payment of any greater or smaller or new or additional fees for the several things mentioned in the said schedules, or for any other thing to be by any such consul general or consui done in the execution of such his office. - 4.
Penalty on Consuls demanding more Fees than specified in the Schedule. In case any consul general or consul appointed by his Majesty as afort said shall, by himself or deputy, or by any person authorised thereto in his behalf, ask or accept, for anything by him done in the execution of such his office, or for any service or duty by him rendered or performed in such his office, for any person whomsoever, any other or greater see or remuneration than is specified in the schedule, or than shall be sanctioned and specided in or by any such order in council, the person so offending shall forfeit and become liable to pay to his Mijesty any sum of sterling British money, not exceeding the amount of the salnry of such person for 1 year, nor' less than the 12th part of such annual salary, at the discretion of the court in which such penalty may be recovered ; and shall moreover upon a second conviction for any such offence forfeit such his office, and for ever after become incapable of serving his Majesty in the same or the like capacity. - $ 5.
Table of Fees to be erhibited at Custom-houses. - A printed copy of the tables of fees allowed by this act, or which may be sanctioned or allowed by any order to be made in pursuance of this act by his Majesty in council, shall be exbibited in a conspicuous manner, for the inspection of all persons, in the Custen. house in the port of London, and in all other Custom-houses in the several ports and harbours of the U. Kingdom of Great Britain and Ireland; and printed copies thereof shall, by the collector or other chief officer of customs in all such ports and harbours, be delivered gratuitously, and without fee or reward, to every master of any vessel clcaring out of any such port or harbour, and demanding a copy thereof.-6.
Table of Fees to be exhibited at Consuls' Qfices. - A copy of the schedule or table of fees to this present act annexed, or which may be established and authorised by any such order in council shall be hung up and exhibited in a conspicuous place in the public offices of all consuls general or consuls appointed by his Majesty, in the foreign places to which they may be so appointed, for the inspecciou of all persons interested therein; and any consul general or consul omitting or neglecting to exlubit any such copy of the schedules in such his public office, or refusing to permit the same to be in spected by any person interested therein, shall for every such offence forfeit and pay a sum of British sterling money not exceeding one hall the amount of the salary of such person for 1 year, nor lens than the 12th part of such annual salary, at the discretion of the court in which such penalty may be recovered. -- 7.
Superannuation.-" And whereas it is expedient that his Majesty should be enabled to grant to the said consuls general and consuls, appointed as aforesaid, allowances in the nature of superannuation or reward for meritorious public services ; ? it is further enacted, that all the regulations contained in 50 Geo.3, c. 117., 3 Geo, 4. c. 113., 5 Gen. 4 c. 104., respecting superannuation allowances, are hereby extended to the said consuls general and consuls, so far as such regulations can be applied to the Copy of such several persons respectively, as fully to all intents and purposes as if the same were repeated and re-enacted in this present act. – A.
Allowances during War, -- If it shall at any time happen that by reason of any war which may hereafter arise between his Majesty and any sovereign, or foreign state or power, within the dominions of whom aby such consul general or consul shall be appointed to reside, be shall be prevented from resting, and shall in fact cease to reside, at the place to which he may be so appointed, it shall be lawful for his Majesty, by any order to be issued by the advice of his privy council. to grant to any such consul general or consul, who may have served his Majusty in that caracity for any period not less than 3 years, nor more than 10 years next preceding the commencement of any such war, a special allowance not exceeding the proportion of their respective salaries to which such consuls general and consuls would be entitled
2 . 1
under the provisions of the said act of 3 Geo. 4., in case the period of their respective service had exceeded 10 years and had not exceeded 15 years : provided that in case any such consul general or consul shall bare served in such bis office for the space of 10 years and more, it shall be lawful for his Majesty, by any auch order in council as aforesaid, to grant to him such a proportion of his salary, which, by the said act is authorised to be granted, as a superannuation allowance, according to the several periods of service exceeding 10 years, in the said act. -9.
Commencement - This act shall take effect from the 1st of January, 1826, except where any other commencement is particularly directed. — $ 22. Tables of Fees allowed to be taken by Consuls General and Con Registrations
.1 dollar. suls, by the preceding Act of 6 Gco. 4. c. 87.
Visa of passport Table A. - Certincate of due Landing of goods ex
Valuation of goods.
1 per cent. ported from the United Kingdom
2 dollars. Attending sales, per cent. where there has been a charge Signature of ship's manifest
for valuing: oherwise, I per cent. Certificate of origin, when required
Attendance out of consular office at a shipwreck, 5 dollars Bili of health, when required
per diem for his personal expenses, over and above his Signature of muster-roll, when required
travelling expenses. Allestation of a Ignature, when required
. 5 dollars. Ai min stering an oath, when required
Management property of British subjects dying Seal of office, and signature of any other document
2) per cent. not specited herein, when required.
1 do. The dollars mentioned in the preceding tables are in all Table D. - Bottomry or arbitration bond
do, cases to be paid by the delivery of dollars, each of which is to Noting a protest
do. be of the value of 18. dl. sterling, and no more, according to Order of survey
- 2 do. the rate of exchange prevailing at the place where such pay. Exinding a protest or survey
do. ment is made. CONTRABAND, in commerce, a commodity prohibited to be exported or imported, bought or sold.
Contraband is also a term applied to designate that class of commodities which neutrals are not allowed to carry during war to a belligerent power.
It is a recognised general principle of the law of nations, that ships may sail to and trade with all kingdoms, countries, and states in peace with the princes or authorities whose flags they bear; and that they are not to be molested by the ships of any other power at war with the country with which they are trading, unless they engage in the conveyance of contraband goods. But gr-at difficulty has arisen in deciding as to the goods comprised under this term. The reason of the limitation suggests, however, the species of articles to which it principally applies. It is indispensable that those who profess to act upon a principle of neutrality, should carefully abstain from doing any thing that may discover a bias in favour of either party. But a nation who should furnish one of the belligerents with supplies of warlike stores, or with supplies of any article, without which that belligerent might not be able to carry on the contest, would obviously forfeit her neutral character; and the other belligerent would be warranted in preventing such succours from being sent, and confiscating them as lawful prize. All the best writers on international law admit this principle; which, besides being enforced during every contest, has been sanctioned by repeated treaties. In order to obviate all disputes as to what commodities should be deemed contraband, they have sometimes been specified in treaties or conventions. - (See the references in Lampredi del Commercio de Popoli Neutrali, 5 9.) But this classification is not always respected during hostilities; and it is sufficiently evident that an article which might not be contraband at one time, or under certain circumstances, may become contraband at another time, or under different circumstances. It is admitted on all hands, even by M. Hubner, the great advocate for the freedom of neutral commerce -( De la Saisie des Bútimens Neutres, tom. i. p. 193. ) – that every thing that may be made directly available for hostile purposes is contraband, as arms, ammunition, horses, timber for ship-building, and all sorts of naval stores. The greatest difficulty has occurred in deciding as to provisions, which are sometimes held to be contraband, an å sometimes not. Lord Stowell has shown that the character of the port to which the provisions are destined, is the principal circumstance to be attended to in deciding whether they are to be looked upon as contraband. A cargo of provisions intended for an enemy's port, in which it was known that a warlike arroament was in preparation, would be liable to arrest and confiscation; while, if the same cargo were intended for a port where none but merchantmen were fitted out, the most that could be done would be to detain it, paying the neutral the same price for it he would have got from the enemy.
By the ancient law of Europe, a ship conveying any contraband article was liable to confiscation as well as the article. But in the modern practice of the courts of admiralty of this and other countries, a milder rule has been adopted, and the carriage of contraband articles is attended only with the loss of freight and expenses, unless when the ship belongs to the owner of the contraband cargo, or when the simple misconduct of conveying such a cargo has been connected with other malignant and aggravating circumstances. Of these a false destination and false papers are justly held to be the worst. — (5 Rob. Adm. Rep. 275.)
The right of visitation and search is a right inherent in all belligerents; for it would be absurd to allege that they had a right to prevent the conveyance of contraband goods to an enemy, and to deny them the use of the only means by which they can give effect to such right. — (Vattel, book iii. c. 7. $ 114.) The object of the search is twofold : first, to ascertain whether the ship is neutral or an enemy, for the circunstance of its huisting a neutral flag affords no security that it is really such; and, secondly, to ascertailu
whether it has contraband articles, or enemies' property, on board. All neutral ships that would navigate securely during war must, consequently, be provided with passports from their government, and with all the papers or documents necessary to prove the property of the ship and cargo -(see Ship’s Papers); and they must carefully avoid taking any contraband articles or belligerent property on board. And hence, as Lampredi has observed, a merchant ship which seeks to avoid a search by crowding sail, or by open force, may justly be captured and subjected to confiscation. - ($ 12.)
It has, indeed, been often contended that free ships make free goods (que le pavillon couvre la marchandise), and that a belligerent is not warranted in seizing the property of an enemy in a neutral ship, unless it be contraband. The discussion of this important question would lead us into details which do not properly come within the scope of this work. We may, however, shortly observe, that no such privilege could be conceded to neutrals, without taking from belligerents the right, inseparable from a state of war, of seizing an enemy's property if found in places where hostilities may be lawfully carried on, as on the high seas. In fact, were the principle in question admitted, the commerce of a belligerent power with its colonies, or other countries beyond sea, might be prosecuted in neutral ships, with as much security during war as in peace; so that neutrals would, in this way, be authorised to render a belligerent more important assistance than, perhaps, they could have done had they supplied him with troops and ammunition ! But it is surely unnecessary to say, that to act in this way is a proceeding altogether at variance with the idea of neutrality. Neutrals are bound to conduct themselves in the spirit of impartiality ; and must not afford such aid or assistance to one party, as may the better enable him to make head against the other. It is their duty “non interponere se bello, non hoste imminente hostem eripere." And yet it is manifest that the lending of neutral bottoms to carry on a belligerent's trade is in direct contradiction to this rule. The ships or cruisers of a particular power may have swept those of its enemy from the sea, and reduced him to a state of great difficulty, by putting a stop to his commerce with foreigners, or with his own colonies; but of what consequence would this be, if neutrals might step in to rescue him from such difficulties, by carrying on that intercourse for him which he can no longer carry on for himself? It is natural enough that such a privilege should be coveted by neutrals: but, however advantageous to them, it is wholly subversive of the universally admitted rights of belligerent powers, as well as of the principles of neutrality; and cannot, therefore, be truly said to be bottomed on any sound principle.
In the war of 1756, the rule was laid down by Great Britain, that neutrals are not to be allowed to carry on a trade during war, that they were excluded from during peace ; so that, supposing a nation at war with Great Britain had, while at peace, prohibited foreigners from engaging in her colonial or coasting trade, we should not have permitted neutrals to engage in it during war. This rule has been much complained of; but the principle on which it is founded seems a sound one, and it may in most cases be safely adopted. The claims of neutrals cannot surely be carried further than that they should be allowed to carry on their trade during war, as they had been accustomed to carry it on during peace, except with places under blockade ; but it is quite a different thing when they claim to be allowed to employ themselves, during war, in a trade in which they had not previously any right to engage. To grant them this, would not be to preserve to them their former rights, but to give them new ones which may be fairly withheld. Supposing, however, that either of the belligerent powers has force sufficient to prevent any intercourse between the other and its colonies, or any intercourse between different ports of the other, she might, in the exercise of the legitimate rights of a belligerent, exclude neutrals from such trade, even though it had formerly been open to them ; because otherwise she would be deprived of the advantage of her superior force; and the neutrals would, in fact, when employed in this way, be acting as the most efficient allies of her enemy.
For a full discussion of this important and difficult question, and of the various distinctions to which it gives rise, see the work of Hubner (De la Saisie des Bátimens Neutres, 2 tomes, 12mo, 1757), in which the different arguments in favour of the principle that “ the fiag covers the cargo," are stated with great perspicuity and talent. The opposite principle has been advocated by Lampredi, in his very able treatise Del Commercio de Popoli Neutrali, § 10. ; by Lord Liverpool, in his Discourse on the Conduct of Great Britain in respect to Neutrals, written in 1757 ; and, above all, by Lord Stowell, in his justly celebrated decisions in the Admiralty Court. Martens inclines to Hubner's opinion. — (See Précis du Droit des Gens, liv. 8. c. 7.)
CONVOY, in navigation, the term applied to designate a ship or ships of war, appointed by government, or by the commander in chief on a particular station, to escort or protect the merchant ships proceeding to certain ports. Convoys are mostly appointed during war ; but they are sometimes, also, appointed during peace, for the security of ships navigating seas infested with pirates.