[1] The historical development of star-catalogues in general, regarded
as statistics of the co-ordinates, &c., of stars, is given in the
historical section of the article Astronomy. See also E. B. Knobel,
"Chronology of Star Catalogues," _Mem. R.A.S._ (1877).
CONSTIPATION (from Lat. _constipare_, to press closely together, whence
also the adjective "costive"), the condition of body when the faeces are
unduly retained, or there is difficulty in evacuation, tightness of the
bowels (see Digestive Organs; and Therapeutics). It may be due to
constitutional peculiarities, sedentary or irregular habits, improper
diet, &c. The treatment varies with individual cases, according to the
cause at work, laxatives, dieting, massage, &c., being prescribed.
CONSTITUENCY (from "constituent," that which forms a necessary part of a
thing; Lat. _constituere_, to create), a political term for the body of
electors who choose a representative for parliament or for any other
public assembly, for the place or district possessing the right to elect
a representative, and for the residents generally, apart from their
voting powers, in such a locality. The term is also applied, in a
transferred sense, to the readers of a particular newspaper, the
customers of a business and the like.
CONSTITUTION AND CONSTITUTIONAL LAW. The word constitution
(_constitutio_) in the time of the Roman empire signified a collection
of laws or ordinances made by the emperor. We find the word used in the
same sense in the early history of English law, _e.g._ the Constitutions
of Clarendon. In its modern use constitution has been restricted to
those rules which concern the political structure of society. If we take
the accepted definition of a law as a command imposed by a sovereign on
the subject, the constitution would consist of the rules which point out
where the sovereign is to be found, the form in which his powers are
exercised, and the relations of the different members of the sovereign
body to each other where it consists of more persons than one. In every
independent political society, it is assumed by these definitions, there
will be found somewhere or other a sovereign, whether that sovereign be
a single person, or a body of persons, or several bodies of persons. The
commands imposed by the sovereign person or body on the rest of the
society are positive laws, properly so called. The sovereign body not
only makes laws, but has two other leading functions, viz. those of
judicature and administration. Legislation is for the most part
performed directly by the sovereign body itself; judicature and
administration, for the most part, by delegates. The constitution of a
society, accordingly, would show how the sovereign body is composed, and
what are the relations of its members _inter se_, and how the sovereign
functions of legislation, judicature and administration are exercised.
Constitutional law consists of the rules relating to these subjects, and
these rules may either be laws properly so called, or they may not--i.e.
they may or may not be commands imposed by the sovereign body itself.
The English constitutional rule, for example, that the king and
parliament are the sovereign, cannot be called a law; for a law
presupposes the fact which it asserts. And other rules, which are
constantly observed in practice, but have never been enacted by the
sovereign power, are in the same way constitutional laws which are not
laws. It is an undoubted rule of the English constitution that the king
shall not refuse his assent to a bill which has passed both Houses of
Parliament, but it is certainly not a law. Should the king veto such a
bill his action would be unconstitutional, but not illegal. On the other
hand the rules relating to the election of members to the House of
Commons are nearly all positive laws strictly so called. Constitutional
law, as the phrase is commonly used, would include all the laws dealing
with the sovereign body in the exercise of its various functions, and
all the rules, not being laws properly so called, relating to the same
subject.
The above is an attempt to indicate the meaning of the phrases in their
stricter or more technical uses. Some wider meanings may be noticed. In
the phrase constitutional government, a form of government based on
certain principles which may roughly be called popular is the leading
idea. Great Britain, Switzerland, the United States, are all
constitutional governments in this sense of the word. A country where a
large portion of the people has some considerable share in the supreme
power would be a constitutional country. On the other hand,
constitutional, as applied to governments, may mean stable as opposed to
unstable and anarchic societies. Again, as a term of party politics,
constitutional has come to mean, in England, not obedience to
constitutional rules as above described, but adherence to the existing
type of the constitution or to some conspicuous portions thereof,--in
other words, conservative.
The ideas associated with constitution and constitutionalism are thus,
it will be seen, mainly of modern and European origin. They are wholly
inapplicable to the primitive and simple societies of the present or of
the former times. The discussion of forms of government occupies a large
space in the writings of the Greek philosophers,--a fact which is to be
explained by the existence among the Greeks of many independent
political communities, variously organized, and more or less democratic
in character. Between the political problems of the smaller societies
and those of the great European nations there is no useful parallel to
be drawn, although the predominance of classical learning made it the
fashion for a long time to apply Greek speculations on the nature of
monarchy, aristocracy, and democracy to public questions in modern
Europe. Representation (q.v.), the characteristic principle of European
constitutions, has, of course, no place in societies which were not too
large to admit of every free citizen participating personally in the
business of government. Nor is there much in the politics or the
political literature of the Romans to compare with the constitutions of
modern states. Their political system, almost from the beginning of
empire, was ruled absolutely by a small assembly or by one man.
The impetus to constitutional government in modern times has to a large
extent come from England, and it is from English politics that the
phrase and its associations have been borrowed. England has offered to
the world the one conspicuous example of a long, continuous, and orderly
development of political institutions. The early date at which the
principle of self-government was established in England, the steady
growth of the principle, the absence of civil dissension, and the
preservation in the midst of change of so much of the old organization,
have given its constitution a great influence over the ideas of
politicians in other countries. This fact is expressed in the proverbial
phrase--"England is the mother of parliaments." It would not be
difficult to show that the leading features of the constitutions now
established in other nations have been based on, or defended by,
considerations arising from the political history of England.
In one important respect England differs conspicuously from most other
countries. Her constitution is to a large extent _unwritten_, using the
word in much the same sense as when we speak of unwritten law. Its rules
can be found in no written document, but depend, as so much of English
law does, on precedent modified by a constant process of interpretation.
Many rules of the constitution have in fact a purely legal history, that
is to say, they have been developed by the law courts, as part of the
general body of the common law. Others have in a similar way been
developed by the practice of parliament. Both Houses, in fact, have
exhibited the same spirit of adherence to precedent, coupled with a
power of modifying precedent to suit circumstances, which distinguishes
the judicial tribunals. In a constitutional crisis the House of Commons
appoints a committee to "search its journals for precedents," just as
the court of king's bench would examine the records of its own
decisions. And just as the law, while professing to remain the same, is
in process of constant change, so, too, the unwritten constitution is,
without any acknowledgment of the fact, constantly taking up new ground.
In contrast with the mobility of an unwritten constitution is the fixity
of a constitution written out, like that of the United States or
Switzerland, in one authoritative code. The constitution of the United
States, drawn up at Philadelphia in 1787, is contained in a code of
articles. It was ratified separately by each state, and thenceforward
became the positive and exclusive statement of the constitution. The
legislative powers of the legislature are not to extend to certain kinds
of bills, e.g. _ex post facto_ bills; the president has a veto which can
only be overcome by a majority of two-thirds in both Houses; the
constitution itself can only be changed in any particular by the consent
of the legislatures or conventions of three-fourths of the several
states; and finally the judges of the Supreme Court are to decide in all
disputed cases whether an act of the legislature is permitted by the
constitution or not.
The constitution of the United States is the supreme law of the land as
to the matters which it embraces. The constitution of each state is the
supreme law of the state, except so far as it may be controlled by the
constitution of the United States. Every statute in conflict with the
constitution to which it is subordinate is void so far as this conflict
extends. If it concerns only a distinct and separable part of the
statute, that part only is void. Every court before which a statutory
right or defence is asserted has the power to inquire whether the
statute in question is or is not in conflict with the paramount
constitution. This power belongs even to a justice of the peace in
trying a cause. He sits to administer the law, and it is for him to
determine what is the law. Inferior courts commonly decline to hold a
statute unconstitutional, even if there may appear to be substantial
grounds for such a decision. The presumption is always in favour of the
validity of the law, and they generally prefer to leave the
responsibility of declaring it void to the higher courts.
The judges of the state courts are bound by their oath of office to
support the constitution of the United States. They have an equal right
with those of the United States to determine whether or how far it
affects any matter brought in question in any action. So, vice versa,
the judges of the United States courts, if the point comes up on a trial
before them, have the right to determine whether or how far the
constitution of a state invalidates a statute of the state. They,
however, are ordinarily bound to follow the views of the state courts on
such a question. They are not bound by any decision of a state court as
to the effect of the constitution of the United States on a state
statute or any other matter. This judicial power of declaring a statute
void because unconstitutional has been not infrequently exercised, from
the time when the first state constitutions were adopted.
Juries in criminal causes are sometimes made by American statutes or
recognized by American practice as judges of the law as well as the
fact. The better opinion is that this does not make them judges of
whether a law on which the prosecution rests violates the paramount
constitution and is therefore void (_United States_ v. _Callender_,
Wharton's _State Trials_, 688; _State_ v. _Main_, 69 Connecticut
Reports, 123, 128).
If a state court decides a point of constitutional law, set up under the
constitution of the United States, against the party relying upon it,
and this decision is affirmed by the state court of last resort, he may
sue out a writ of error, and so bring his case before the Supreme Court
of the United States. If the state decision be in his favour, the other
side cannot resort to like proceedings.
A decree of the Supreme Court of the United States on a point of
construction arising under the constitution of the United States settles
it for all courts, state and national.
The salient characteristic of the United States constitution is,
perhaps, its formidable apparatus of provisions against change; and, in
fact, only 15 constitutional amendments had been adopted from 1789 up to
1909, the last being in 1870. In the same period the unwritten
constitution of England has made a most marked advance, chiefly in the
direction of democratizing the monarchy, and diminishing the powers of
the House of Lords. The House of Commons has continuously asserted its
legislative predominance, and has reduced the other House to the
position of a revising chamber, which in the last resort, however, can
produce a legislative deadlock, subject to the results of a new general
election (see Parliament). And the cabinet, which depends on the
support of the House of Commons, has become more and more the executive
council of the realm. One conspicuous feature of the English
constitution, by which it is broadly distinguished from written or
artificial constitutions, is the presence throughout its entire extent
of legal fictions. The influence of the lawyers on the progress of the
constitution has already been noticed, and is nowhere more clearly shown
than in this peculiarity of its structure. As in the common law, so in
the constitution, change has been effected in substance without any
corresponding change in terminology. There is hardly one of the phrases
used to describe the position of the crown which can be understood in
its literal sense, and many of them are currently accepted in more
senses than one. The American constitution of 1789 reproduced, however,
in essentials, and with necessary modifications, the contemporary
British model, and, where it did so, has preserved the old conception of
what was then the British system of Government. The position and powers
of the president were a fair counterpart of the royal prerogative of
that day; the two houses of Congress corresponded sufficiently well to
the House of Lords and the House of Commons, allowing for the absence of
the elements of hereditary rank and territorial influence. While the
English constitution has changed much, the American constitution has
changed very little in these respects. Allowing for the more democratic
character of the constituencies, the organization of the supreme power
in the United States is nearer the English type of the 18th century--is,
in fact, less elastic than in the United Kingdom.
On the other hand, it is not uncommon to misinterpret the rigidity of
the United States constitution, from a regard rather to the theory which
its text suggests than to the practical working of the machine. For the
letter of the constitution has to some extent been modified, if not
technically amended, in various respects by judicial interpretation, and
by use and wont (e.g. as regards the election of the president). This
side of the matter may be studied in C. G. Tiedeman's work cited below.
Moreover, even in respect of the 18th-century British character
attaching to the constitution, as drawn up in 1787, it has to be
remembered that this was not taken direct from England. As several
American constitutional historians have elaborately shown (e.g. A. C.
McLaughlin, in _The Confederation and the Constitution_, 1905), the
English idea had already been developed in various directions during the
preceding colonial period, and the constitution really represented the
English constitutional usage _as known in America_, into which the
Philadelphia convention introduced new features corresponding to the
prevailing civil conditions or suggested by English analogy. It is
important to emphasize this point, since the resemblance of the American
constitution of 1789 to the contemporary English constitution has
sometimes been exaggerated; but the fact remains that the written
constitution has been less susceptible of development than the
unwritten.
Between England and some other constitutional countries a difference of
much constitutional importance is to be found in the terms on which the
component parts of the country were brought together. All great
societies have been produced by the aggregation of small societies into
larger and larger groups. In England the process of consolidation was
completed before the constitution settled down into its present form. In
the United States, on the other hand, in Switzerland, and in Germany the
constitution is in form an alliance among a number of separate states,
each of which may have a constitution and laws of its own for local
purposes. In federal governments it remains a question how far the
independence of individual states has been sacrificed by submission to a
constitution. In the United States constitutional progress is hampered
by the necessity thus created of having every amendment ratified by the
separate vote of three-fourths of the states.
See also Government; Sovereignty; Cabinet; Prerogative, &c., and the
section on Government or Constitution in the articles on the various
countries. The standard work on the English constitution is Sir
William Anson's _Law and Custom of the Constitution_ (1st ed. 1886;
3rd ed. 1909); see also A. L. Lowell, _The Government_ _of England_
(1908); W. Bagehot, _The English Constitution_; S. Low, _The
Governance of England_ (1904); A. V. Dicey, _The Law of the
Constitution_ (7th ed. 1909); W. Stubbs, _Constitutional History of
England_ (1878); R. Gneist, _History of the English Constitution_
(Engl. trans. 1886); J. Macy, _The English Constitution_ (New York,
1897); E. W. Ridges, _Constitutional Law of England_ (1905); F. W.
Maitland, _Constitutional History of England_ (1908); G. B. Adams and
H. M. Stephens, _Select Documents of English Constitutional History_
(New York, 1901). For America, see C. E. Stevens, _Sources of the
Constitution of the United States_ (London and New York, 1894); G. T.
Curtis, _Constitutional History of the United States_ (2 vols., New
York, 1889-1896); T. McI. Cooley, _General Principles of
Constitutional Law in the United States_ (Boston, 1880; 3rd ed.
1898); S. G. Fisher, _Evolution of the Constitution of the United
States_ (Philadelphia, 1897); J. I. C. Hare, _American Constitutional
Law_ (2 vols., Boston, 1889); J. F. Jameson (ed.), _Essays on the
Constitutional History of the United States in the Formative Period,
1775-1789_ (Boston, 1889); W. M. Meigs, _Growth of the Constitution
in the Federal Convention of 1787_ (Philadelphia, 1900); and C. G.
Tiedeman, _Unwritten Constitution of the United States_ (New York,
1890). Also A. L. Lowell, _Government and Parties in Continental
Europe_ (2 vols., 1896); W. F. _Dodd, Modern Constitutions_ (2 vols.,
Chicago, 1909), a collection of the fundamental laws of twenty-two of
the most important countries.
"CONSTITUTION OF ATHENS" ([Greek: Athenaion politeia]), a work
attributed to the philosopher Aristotle (384-322 B.C.), forming one of a
series of _Constitutions_ ([Greek: politeiai]), 158 in number, which
treated of the institutions of the various states in the Greek world. It
was extant until the 7th century of our era, or to an even later date,
but was subsequently lost. A copy of this treatise, written in four
different hands upon four rolls of papyrus, and dating from the end of
the 1st century A.D., was discovered in Egypt, and acquired by the
trustees of the British Museum, for whom it was edited by F. G. Kenyon,
assistant in the manuscript department, and published in January 1891.
Some very imperfect fragments of another copy had been acquired by the
Egyptian Museum at Berlin, and were published in 1880.
_Authorship._--It may be regarded as now established that the treatise
discovered in Egypt is identical with the work upon the constitution of
Athens that passed in antiquity under the name of Aristotle. The
evidence derived from a comparison of the British Museum papyrus with
the quotations from the lost work of Aristotle's which are found in
scholiasts and grammarians is conclusive. Of fifty-eight quotations from
Aristotle's work, fifty-five occur in the papyrus. Of thirty-three
quotations from Aristotle, which relate to matters connected with the
constitution, or the constitutional history of Athens, although they are
not expressly referred to the [Greek: Athenaion politeia], twenty-three
are found in the papyrus. Of those not found in the papyrus, the
majority appear to have come either from the beginning of the treatise,
which is wanting in the papyrus, or from the latter portion of it, which
is mutilated. The coincidence, therefore, is as nearly as possible
complete. It may also be regarded as established by internal evidence
that the treatise was composed during the interval between Aristotle's
return to Athens in 335 B.C. and his death in 322. There are two
passages which give us the latter year as the _terminus ad quem_, viz.
c. 42. 1 and c. 62. 2. In the former passage the democracy which is
about to be described is spoken of as the "present constitution"
([Greek: e nun katastasis tes politeias]). The democratic constitution
was abolished, and a timocracy established, on the surrender of Athens
to Antipater, at the end of the Lamian War, in the autumn of 322. At the
same time Samos was lost; it is still reckoned, however, among the
Athenian possessions in the latter passage. On the other hand, the
foreign possessions of Athens are limited to Lemnos, Imbros, Scyros,
Delos and Samos. This could only apply to the period after Chaeronea
(338 B.C.). In c. 61. 1, again, mention is made of a special Strategus
[Greek: epi tas symmorias]; but it can be proved from inscriptions that
down to the year 334 the generals were _collectively_ concerned with the
symmories. Finally, in c. 54. 7 an event is dated by the archonship of
Cephisophon (329). We thus get the years 329 and 322 as fixing the
limits of the period to which the composition of the work must be
assigned. It follows that, whether it is by Aristotle or not, its date
is later than that of the _Politics_, in which there is no reference to
any event subsequent to the death of Philip in 336.
The only question as to authorship that can fairly be raised is the
question whether it is by Aristotle or by a pupil; i.e. as to the sense
in which it is "Aristotelian." The argument on the two sides may be
summarized as follows:--
_Against._--(i.) The occurrence of non-Aristotelian words and phrases
and the absence of turns of expression characteristic of the undisputed
writings of Aristotle. (ii.) The occurrence of statements contradictory
of views found in the _Politics_; e.g. c. 4 (Constitution of Draco)
compared with _Pol._ 1274 b 15 ([Greek: Drakontos nomoi men eisi,
politeia d' hyparchouse tous nomous etheken]); c. 8. 1 (the archons
appointed by lot out of selected candidates) compared with _Pol._ 1274 a
17, and 1281 b 31 (the archons elected by the _demos_); c. 17. 1 (total
length of Peisistratus' reign, 19 years) compared with _Pol._ 1315 b 32
(total length, 17 years); c. 21. 6 (Cleisthenes left the clan and
phratries unaltered) compared with _Pol._ 1319 b 20 (Cleisthenes
increased the number of the phratries); c. 21. 2 and 4 compared with
_Pol._ 1275 b 37 (different views as to the class admitted to
citizenship by Cleisthenes). It will be observed that the instances
quoted relate to the most famous names in the early history of Athens,
viz. Draco, Solon, Peisistratus and Cleisthenes. (iii.) Arguments drawn
from the style, composition and general character of the work, which are
alleged to be unworthy of the author of the undoubtedly genuine
writings. There is no sense of proportion (contrast the space devoted to
Peisistratus and his sons, or to the Four Hundred and the Thirty, with
the inadequate treatment of the period between the Persian and
Peloponnesian Wars); there is a lack of historical insight and an
uncritical acceptance of erroneous views; and the anecdotic element is
unduly prominent. These considerations led several of the earlier
critics to deny the Aristotelian authorship, e.g. the editors of the
Dutch edition of the text, van Herwerden and van Leeuwen; Ruehl, Cauer
and Schvarcz in Germany; H. Richards and others in England.
_For._--(i.) The consensus of antiquity. Every ancient writer who
mentions the _Constitution_ attributes it to Aristotle, while no writer
is known to have questioned its genuineness. (ii.) The coincidence of
the date assigned to its composition on internal grounds with the date
of Aristotle's second residence in Athens. (iii.) Parallelisms of
thought or expression with passages in the _Politics_; e.g. c. 16. 2 and
3 compared with _Pol._ 1318 b 14 and 1319 a 30; the general view of
Solon's legislation compared with _Pol._ 1296 b 1; c. 27. 3 compared
with _Pol._ 1274 a 9. To argument (i.) against the authorship, it is
replied that the _Constitution_ is an historical work, intended for
popular use; differences in style and terminology from those of a
philosophical treatise, such as the _Politics_, are to be expected. To
argument (ii.) it is replied that, as the _Constitution_ is a later work
than the _Politics_, a change of view upon particular points is not
surprising. These considerations have led the great majority of writers
upon the subject to attribute the work to Aristotle himself. On this
side are found Kenyon and Sandys among English scholars, and in Germany,
Wilamowitz, Blass, Gilbert, Bauer, Bruno Keil, Busolt, E. Meyer, and
many others. On the whole, it can hardly be doubted that the view which
is supported by so great a weight of authority is the correct one. The
arguments advanced on the other side are not to be lightly set aside,
but they can scarcely outweigh the combination of external and internal
evidence in favour of the attribution to Aristotle. An attentive study
of the parallel passages in the _Politics_ will go a long way towards
carrying conviction. It is true that a series such as the
_Constitutions_ might well be entrusted to pupils working under the
direction of their master. It is also true, however, that the
_Constitution of Athens_ must have been incomparably the most important
of the series and the one that would be most naturally reserved for the
master's hand. There are no traces in the treatise either of variety of
authorship or of incompleteness, though there are evidences of
interpolation.
_Contents._--The treatise consists of two parts, one historical, and the
other descriptive. The first forty-one chapters compose the former part,
the remainder of the work the latter. The first part comprised an
account of the original constitution of Athens, and of the eleven
changes through which it successively passed (see c. 41). The papyrus,
however, is imperfect at the beginning (the manuscript from which it was
copied appears to have been similarly defective), the text commencing in
the middle of a sentence which relates to the trial and banishment of
the Alcmeonidae for their part in the affair of Cylon. The missing
chapters must have contained a sketch of the original constitution, and
of the changes introduced in the time of Ion and Theseus.
The following is an abstract of Part I. in its present form. Chapters
2, 3, description of the constitution before the time of Draco. 4,
Draco's constitution. 5-12, reforms of Solon. 13, party feuds after
the legislation of Solon. 14-19, the rule of Peisistratus and his
sons. 20, 21, the reforms of Cleisthenes. 22, changes introduced
between Cleisthenes and the invasion of Xerxes. 23, 24, the supremacy
of the Areopagus, 479-461 B.C. 25, its overthrow by Ephialtes. 26,
27, changes introduced in the time of Pericles. 28, the rise of the
demagogues. 29-33, the revolution of the Four Hundred. 34-40, the
government of the Thirty. 41, list of the successive changes in the
constitution. It may be noted that the reforms of Solon, the tyranny
of Peisistratus and his sons, and the revolutions of the Four Hundred
and the Thirty, together occupy considerably more than two-thirds of
Part I.
Part II. describes the constitution as it existed at the period of
the composition of the treatise (329-322 B.C.). It begins with an
account of the conditions of citizenship and of the training of the
_ephebi_ (citizens between the ages of 18 and 20). In chapters 43-49
the functions of the Council ([Greek: boule]) and of the officials
who act in concert with it are described. 50-60 deal with the
officials who are appointed by lot, of whom the most important are
the nine Archons, to whose functions five chapters (55-59) are
devoted. The military officers, who come under the head of elective
officials, form the subject of c. 61. With c. 63 begins the section
on the Law-courts, which occupied the remainder of the
_Constitution_. This portion, with the exception of c. 63, is
fragmentary in character, owing to the mutilated condition of the
fourth roll of the papyrus on which it was written. It will thus be
seen that the subjects which receive fullest treatment in Part II.
are the Council, the Archons and the Law-courts. The Ecclesia, on the
other hand, is dealt with very briefly, in connexion with the
_prytaneis_ and _proedri_ (cc. 43, 44).
_Sources._--The labours of several workers in this field, notably Bruno
Keil and Wilamowitz, have rendered it comparatively easy to form a
general estimate of Aristotle's indebtedness to previous writers,
although problems of great difficulty are encountered as soon as it is
attempted to determine the precise sources from which the historical
part of the work is derived. Among these sources are unquestionably
Herodotus (for the tyranny of Peisistratus, and for the struggle between
Cleisthenes and Isagoras), Thucydides (for the episode of Harmodius and
Aristogeiton, and for the Four Hundred), Xenophon (for the Thirty), and
the poems of Solon. There is now among critics a general consensus in
favour of the view that the most important of his sources was the
_Atthis_ of Androtion, a work published in all probability only a few
years earlier than the _Constitution_; in any case, after the year 346.
From it are derived not only the passages which are annalistic in
character and read like excerpts from a chronicle (e.g. c. 13. 1, 2; c.
22; c. 26. 2, 3), but also most of the matter common to the
_Constitution_ and to Plutarch's _Solon_. The coincidences with
Plutarch, which are often verbal, and extend to about 50 lines out of
170 in cc. 5-11 of the _Constitution_, can best be explained on the
hypothesis that Hermippus, the writer followed by Plutarch, used the
same source as Aristotle, viz. the _Atthis_ of Androtion. Androtion is
probably closely followed in the account of the pre-Draconian
constitution, and to him appear to be due the explanation of local names
(e.g. [Greek: chorion ateles]), or proverbial expressions (e.g. [Greek:
to me phylokrinein]), as well as the account of "Strategems" such as
that of Themistocles against the Areopagus (c. 25) or that employed by
Peisistratus in order to disarm the people (c. 15. 4). Whether the
anecdotes, which are a conspicuous feature in the _Constitution_, should
be referred to the same source is more open to doubt. It is also
generally agreed that among the sources was a work, written towards the
end of the 5th century B.C., by an author of oligarchical sympathies,
with the object of defaming the character and policy of the heroes of
the democracy. This source can be traced in passages such as c. 6. 2
(Solon turning the Seisachtheia to the profit of himself and his
friends), 9. 2 (obscurity of Solon's laws intentional, cf. c. 35. 2),
27. 4 (Pericles' motive for the introduction of the dicasts' pay). But
while the object ([Greek: oi boulomenoi blasphemein], c. 6) and the date
of this oligarchical pamphlet (for the date cf. Plutarch's _Solon_, c.
15 [Greek: oi peri Konona kai Kleinian kai Hipponikon], which points to
a time when Conon, Alcibiades and Callias were prominent in public life)
are fairly certain, the authorship is quite uncertain, as is also its
relationship to another source of importance, viz. that from which are
derived the accounts of the Four Hundred and the Thirty. The view taken
of the character and course of these revolutions betrays a strong bias
in favour of Theramenes, whose ideal is alleged to have been the [Greek:
patrios politeia]. It has been maintained, on the one hand, that this
last source (the authority followed in the accounts of the Four Hundred
and the Thirty) is identical with the oligarchical pamphlet, and, on the
other, that it is none other than the _Atthis_ of Androtion. The former
hypothesis is improbable. In favour of the latter two arguments may be
adduced. In the first place, Androtion's father, Andron, was one of the
Four Hundred, and took Theramenes' side. Secondly, the precise marks of
time, which are characteristic of the _Atthis_, are conspicuous in these
chapters. In view, however, of the fact that Androtion in his political
career showed himself not only a democrat, but a democrat of the extreme
school, the hypothesis must be pronounced untenable.
_Value._--It is by no means easy to convey a just impression of the
value of Aristotle's work as an authority for the constitutional history
of Athens. In all that relates to the practice of his own day
Aristotle's authority is final. There can be no question, therefore, as
to the importance, or the trustworthy character, of the Second Part. But
even here a caution is necessary. It must be remembered that its
authority is final for the 4th century only, and that we are not
justified in arguing from the practice of the 4th century to that of the
5th, unless corroborative evidence is available. In the First Part,
however, where he is treating of the institutions and practice of a past
age, Aristotle's authority is very far from being final. An analysis of
this part of the work discloses his dependence, in a remarkable degree,
upon his sources. Occasionally he compares, criticizes or combines; as a
rule he adheres closely to the writer whom he is using. There is no
evidence, either of independent inquiry, or of the utilization of other
sources than literary ones. Where "original documents" are quoted, or
referred to, as e.g. in the history of the Four Hundred, or of the
Thirty, it is probable that he derived them from a previous writer. For
the authority of Aristotle we must substitute, therefore, the authority
of his sources; i.e. the value of any particular statement will vary
with the character of the source from which it comes. For the history of
the 5th century the passages which come from Androtion's _Atthis_ carry
with them a high degree of authority. It by no means follows, however,
that a statement relating to earlier times is to be accepted simply
because it is derived from the same source. And in passages which are
derived from other sources than the _Atthis_ a much lower degree of
authority can be claimed, even for statements relating to the 5th
century. The supremacy of the Areopagus after the Persian Wars, the
policy attributed to Aristides (c. 24), and the association of
Themistocles with Ephialtes, are cases in point. Nor must the reader
expect to find in the _Constitution_ a great work, in any sense of the
term. The style, it is true, is simple and clear, and the writer's
criticisms are sensible. But the reader will look in vain for evidence
of the philosophic insight which makes the _Politics_, even at the
present day, the best text-book of political philosophy. It is perhaps
hardly too much to say that there is not a single great idea in the
whole work. He will look in vain, too, for any consistent view of the
history of the constitution as a whole, or for any adequate account of
its development. He will find occasional misunderstandings of measures,
and confusions of thought. There are appreciations which it is difficult
to accept, and inaccuracies which it is difficult to pardon. There are
contradictions which the author has overlooked, and there are omissions
which are unaccountable. Yet, in spite of such defects, the importance
of the _Constitution_ can hardly be exaggerated. Its recovery has
rendered obsolete any history of the Athenian constitution that was
written before the year 1891. Before this date our knowledge was largely
derived from the statements of scholiasts and lexicographers which had
not seldom been misunderstood. The recovery of the _Constitution_ puts
us for the first time in possession of the evidence. To appreciate the
difference that has been made by its recovery, it is only necessary to
compare what we now know of the reforms of Cleisthenes with what we
formerly knew. It is much of it evidence that needs a careful process of
weighing and sifting before it can be safely used; but it is, as a rule,
the best, or the only evidence. The First Part may be less trustworthy
than the Second; it is not less indispensable to the student of
constitutional history.
BIBLIOGRAPHY.--A conspectus of the literature of the _Constitution_
complete down to the end of 1892 is given in Sandys p. lxvii., and,
though less complete, down to the beginning of 1895 in Busolt,
_Griechische Geschichte_, 2nd ed. vol. ii. p. 15. In the present
article only the most important editions, works or articles are
mentioned.
Editions of the text: _Editio princeps_, ed. by F. G. Kenyon, 30th
January 1891, with commentary. Autotype facsimile of the papyrus
(1891). _Aristotelis_ [Greek: politeia Athenaion], ed. G. Kaibel et
U. von Wilamowitz-Moellendorff (Berlin, Weidmann, 1891). _Aristotelis
qui fertur_ [Greek: Athenaion politeia] recensuerunt H. van Herwerden
et J. van Leeuwen (Leiden, 1891). Teubner text, ed. by F. Blass
(Leipzig, 1892). Edition of the text without commentary by Kenyon.
Most of these have passed through several editions. The fullest
commentary is that contained in the edition of the text by J. E.
Sandys (London, 1893). The best translations are those of Kenyon, in
English, and of Kaibel and Kiessling, in German.
Works dealing with the subject: Bruno Keil, _Die Solonische
Verfassung nach Aristoteles_ (Berlin, 1892); G. Gilbert,
_Constitutional Antiquities of Sparta and Athens_ (Eng. trans.,
1895); U. von Wilamowitz-Moellendorff, _Aristoteles und Athen_ (2
vols., Berlin, 1893), a work of great importance, in spite of many
unsound conclusions; E. Meyer, _Forschungen_, vol. ii. pp. 406 ff.
(the section dealing with the Four Hundred is especially valuable).
Articles: R. W. Macan, _Journal of Hellenic Studies_ (April 1891); R.
Nissen, _Rheinisches Museum_ (1892), p. 161; G. Busolt, _Hermes_
(1898), pp. 71 ff.; O. Seeck, "Quellenstudien zu des Aristoteles'
Verfassungsgeschichte Athens," in Lehmann's _Beitraege zur alten
Geschichte_, vol. iv. pp. 164 and 270. (E. M. W.)
CONSUETUDINARY (Med. Lat. _consuetudinarius_, from _consuetudo_,
custom), customary, a term used especially of law based on custom as
opposed to statutory or written law. As a noun "consuetudinary" (Lat.
_consuetudinarius_, sc. _liber_) is the name given to a ritual book
containing the forms and ceremonies used in the services of a particular
monastery, cathedral or religious order.
CONSUL (in Gr. generally [Greek: hypatos], a shortened form of [Greek:
strategos hypatos], i.e. _praetor maximus_), the title borne by the two
highest of the ordinary magistrates of the whole Roman community during
the republic. In the imperial period these magistrates had ceased
practically to be the heads of the state, but their technical position
remained unaltered. (For the modern commercial office of consul see the
separate article below.)
The consulship arose with the fall of the ancient monarchy (see further
ROME: _History_, II. "The Republic"). The Roman reverence for the
abstract conception of the magistracy, as expressed in the imperium and
the auspicia, led to the preservation of the regal power weakened only
by external limitations. The two new officials who replaced the king
bore the titles of leaders (_praetores_) and of judges (_judices_; cf.
Cicero, _De legibus_, iii. 3. 8, "regio imperio duo sunto iique a
praeeundo judicando ... praetores judices ... appellamino"). But the new
fact of colleagueship caused a third title to prevail, that of
_consules_ or "partners," a word probably derived from _consalio_ on the
analogy of _praesul_ and _exul_ (Mommsen, _Staatsrecht_, ii. p. 77, n.
3). This first example of the collegiate principle assumed the form that
soon became familiar in the Roman commonwealth. Each of the pair of
magistrates could act up to the full powers of the imperium; but the
dissent of his colleague rendered his decision or his action null and
void. At the same time the principle of a merely annual tenure of office
was insisted on. The two magistrates at the close of their year of
office were bound to transmit their power to successors; and these
successors whom they nominated were obliged to seek the suffrages of the
people. The only body known to us as electing the consuls during the
republican period was the _comitia centuriata_ (see Comitia). The
consulate was originally confined to patricians. During the struggle for
higher office that was waged between the orders the office was suspended
on fifty-one occasions between the years 444 and 367 B.C. and replaced
by the military tribunate with consular power, to which plebeians were
eligible. The struggle was brought to an end by the Licinio-Sextian laws
of 367 B.C., which enacted that one consul must be a plebeian (see
Patricians).
Most of the internal history of Rome down to the beginning of the third
century B.C. consists in a series of attacks, whether intentional or
accidental, on the power of the executive. As the consuls are the sole
representatives of higher executive authority in early times, this
history is one of a progressive decline in the originally wide and
arbitrary powers of the office. Their right of summary criminal
jurisdiction was weakened by the successive laws of appeal
(_provocatio_); their capacity for interpreting the civil law at their
pleasure by the publication of the Twelve Tables and the Forms of
Action. The growth of the tribunate of the plebs hampered their activity
both as legislators and as judges. They surrendered the duties of
registration to the censors in 443 B.C., and the rights of civil
jurisdiction and control over the market and police to the praetor and
the curule aediles in 367 B.C.
The result of these limitations and of this specialization of functions
in the community was to leave the consuls with less specific duties at
home than any magistrates in the state. But the absence of specific
functions may be of itself a sign of a general duty of supervision. The
consuls were in a very real sense the heads of the state. Polybius
describes them as controlling the whole administration (Polyb. vi. 12
[Greek: pason eisi kurioi ton demosion praxeon]). This control they
exercised in concert with the senate, whose chief servants they were. It
was they who were the most regular consultants of this council, who
formulated its decrees as edicts, and who brought before the people
legislative measures which the senate had approved. It was they also who
represented the state to the outer world and introduced foreign envoys
to the senate. The symbols of their presidency were manifold. It was
marked by the twelve lictors (q.v.), a number permitted to no other
ordinary magistrate, by the fact that the first act of newly-admitted
consuls was to take the auspices, their second to summon the senate, and
by the use of their names for dating the year. The consulate was,
indeed, as Cicero expresses it, the culminating point in an official
career ("Honorum populi finis est consulatus," Cic. _Pro Planco_, 25.
60).
In the domestic sphere the consuls retained certain powers of
jurisdiction. This jurisdiction was either (i.) administrative or (ii.)
criminal. (i.) Their administrative jurisdiction was sometimes concerned
with financial matters such as pecuniary claims made by the state and
individuals against one another. They acted in these matters in the
periods during which the censors were not in office. We also find them
adjudicating in disputes about property between the cities of Italy,
(ii.) Their criminal jurisdiction was of three kinds. In the first place
it was their duty, before the development of the standing commissions
which originated in the middle of the 2nd century B.C., to set in motion
the criminal law against offenders for the cognizance of ordinary, as
opposed to political, crimes. The reference of such cases to the
assembly of the people was effected through their quaestors (see
Quaestor). Secondly, when the people and senate, or the senate alone,
appointed a special commission (see Senate), the commissioner named was
often a consul. Thirdly, we find the consul conducting a criminal
inquiry raised by a point of international law. It is possible that in
this case his advising body (_consilium_) was composed of the _fetiales_
(see Herald, ad fin.). (Cicero, _De republica_, iii. 18. 28; Mommsen,
_Staatsrecht_, ii. p. 112, n. 3).
During the greater part of the republic the consuls were recognized as
the heads of the administration abroad as well as at home. It thus
became necessary that departments of administration (_provinciae_)
should be determined and assigned. The method of assignment varied. The
least usual device was for one consul to take the field at the head of
an army, while the other remained at home to transact the civil business
of state. More often foreign wars demanded the attention of both
consuls. In this case the regular army of four legions was usually
divided between them. When it was necessary that both armies should
co-operate, the principle of rotation was adopted, each consul having
the command for a single day--a practice which may be illustrated by the
events preceding the battle of Cannae (Polybius iii. 110; Livy xxii.
41). During the great period of conquest from 264 to 146 B.C. Italy was
generally one of the consular "provinces," some foreign country the
other; and when at the close of this period Italy was at peace, this
distinction approximated to one between civil and military command. The
consuls settled their departments amongst themselves by agreement or by
lot (_comparatio_, _sortitio_), the power of declaring what should be
the consular _provinciae_ was usurped by the senate, (see Senate), and a
_lex Sempronia_ passed by C. Gracchus, probably in 122 B.C., ordained
that the two consular provinces should be declared before the election
of the consuls. At this time the consuls entered office on the 1st of
January (a practice which commenced in 153 B.C.), and their military
command began on the 1st of March. They could hold this military command
until they were superseded in the following March, and thus their tenure
of power was practically raised to fourteen months. But meanwhile the
home officials invested with the imperium had proved insufficient for
the military needs of the empire, and the system of prolonging the
command (_prorogatio imperii_) had been growing up (see Province). The
consul whose command had been prolonged now served abroad as proconsul.
It is probable that Sulla in his legislation of 81 B.C. did something to
stereotype this system. Certainly the government by pro-magistrates
becomes the rule after this period (cf. Cicero, _De natura deorum_, ii.
3. 9; _De divinatione_, ii. 36. 76, 77), although there are several
instances of consuls assuming the active command of provinces between
the years 74 and 55 B.C. (Mommsen, _Rechtsfrage_, p. 30), and Cicero
declares that the consul has a right to approach every province
("consules, quibus more majorum concessum est vel omnes adire
provincias," Cicero, _Ad Atticum_, viii. 15. 3). Certainly in theory the
provinces were still regarded as "consular," not "proconsular," and were
technically, although not practically, held from the 1st of March of the
consul's tenure of office at Rome (cf. Cicero, _De provinciis
consularibus_, 15. 37; Mommsen, _Rechtsfrage_, _passim_). It was not
until the lex Pompeia of 52 B.C. (Dio Cassius xl. 56) had established a
five years' interval between home and foreign command that the theory of
the _prorogatio imperii_ vanished and the proconsulate became a separate
office.
Since the theory of the persistence of the republican constitution was
of the essence of the Principate, the consuls necessarily lost little of
their outward position and dignity under the rule of the Caesars. The
consulship was the only office in which a citizen, other than a member
of the imperial house, might have the princeps as a colleague, and in
the interval between the death or deposition of one princeps and the
appointment of another the consuls resumed their normal position as the
heads of the state (cf. Herodian ii. 12). As the presidents of the
senate, who after A.D. 14 elected them to their office, they were the
chief personal representatives of those elements of sovereignty that
were supposed to attach to that body, and they directed that high
criminal jurisdiction which the senate of this period assumed (see
Senate). A restored power of jurisdiction is indeed one of the features
of their position during this time, and it is probable that the civil
appeals which came to the senate were delegated to the consuls. They
also acted for a time as delegates to the princeps in matters of
Chancery jurisdiction such as trusts and guardianship (Mommsen,
_Staatsrecht_, ii. p. 103). The consulship was also a preparation for
certain high commands, such as the government of certain public and
imperial provinces (see Province) and the praefecture of the city. It
was probably due to the fact that the consulship was such a prize, and
perhaps also to the expense imposed on the office by its association
with the celebration of games (Dio Cassius lvi. 46, lix. 20) that the
tenure was progressively shortened. In the early principate the consuls
hold office for six months, later for four to two months (Mommsen,
_Staatsrecht_, ii. pp. 84-87). The consuls appointed for the 1st of
January were called _ordinarii_, the others _suffecti_; and the whole
year was dated by the names of the former.
This distinction continued in the Empire that was founded by Diocletian
and Constantine. The _ordinarii_ were nominated by the emperor, the
_suffecti_ were nominated by the senate, and their appointment was
ratified by the emperor. The consulship was still the greatest dignity
which the Empire had to bestow; and the pomp and ceremony of the office
increased in proportion to the decline in its actual power. The entry of
the consuls on office was celebrated by a great procession, by games
given to the people, by a distribution of gifts, such as the ivory
diptychs, a long series of which has been preserved. But the senate,
over which they presided until the time of Justinian, was little more
than the municipal council of the city of Rome; and the justice which
they meted out had dwindled down to the formal and uncontested acts of
manumission and the granting of guardians. Sometimes there was a consul
of the West at Rome and a consul of the East at Constantinople; at other
times both consuls might be found in either capital. The last consul
born in a private station was Basilius in the East in A.D. 541. But the
emperors continued to bear the title for some time longer.
AUTHORITIES.--Mommsen, _Roemisches Staatsrecht_, ii. pp. 74-140 (3rd
ed., Leipzig, 1887); Herzog, _Geschichte und System der roemischen
Staatsverfassung_, i. p. 688 foll., 827 foll. (Leipzig, 1884, &c.),
Lange, _Roemische Alterthuemer_, i. p. 524 foll. (Berlin, 1856, &c.);
Schiller, _Staats- und Rechtsaltertuemer_, p. 53 foll. (Munich, 1893,
_Handbuch der klassischen Altertums-Wissenschaft_, von Dr Iwan von
Mueller); Daremberg-Saglio, _Dictionnaire des antiquites grecques et
romaines_, i. 1455 foll. (1875, &c.); De Ruggiero, _Dizionario
epigrafico di antichita Romane_, ii. 679 foll., 868 foll. (Rome,
1886, &c.); Pauly-Wissowa, _Realencyclopaedie_, iv. 1112 foll. (new
edition, Stuttgart, 1893, &c.).
For the consular diptychs, cf. besides Daremberg-Saglio, _l.c._,
Gori, _Thesaurus veterum diptychorum_ (Florence, 1759), and Labarte,
_Histoire des arts industriels au moyen age_, i. p. 10 foll., 190
foll. (1st ed., Paris, 1864). (A. H. J. G.)
CONSUL, a public officer authorized by the state whose commission he
bears to manage the commercial affairs of its subjects in a foreign
country, and formally permitted by the government of the country wherein
he resides to perform the duties which are specified in his commission,
or _lettre de provision_. (For the ancient magisterial office of consul
see separate article above.)
A consul, as such, is not invested with any diplomatic character, and he
cannot enter on his official duties until a rescript, termed an
_exequatur_ (sometimes a mere countersign endorsed on the commission),
has been delivered to him by the authorities of the state to which his
nomination has been communicated by his own government. This
_exequatur_, called in Turkey a _barat_, may be revoked at any time at
the discretion of the government where he resides. The status of consuls
commissioned by the Christian powers to reside in Mahommedan countries,
China, Korea, Siam, and, until 1899, in Japan, and to exercise judicial
functions in civil and criminal matters between their own countrymen and
strangers, is exceptional to the common law, and is founded on special
conventions or capitulations (q.v.).
The title of consul, in the sense in which it is used in international
law, is derived from that of certain magistrates, in the cities of
medieval Italy, Provence and Languedoc, charged with the settlement of
trade disputes whether by sea or land (_consules mercatorum, consules
artis maris_, &c.)[1] With the growth of trade it early became
convenient to appoint agents with similar powers in foreign parts, and
these often, though not invariably, were styled consuls (_consules in
partibus ultramarinis_).[2] The earliest foreign consuls were those
established by Genoa, Pisa, Venice and Florence, between 1098 and 1196,
in the Levant, at Constantinople, in Palestine, Syria and Egypt. Of
these the Pisan agent at Constantinople bore the title of consul, the
Venetian that of baylo (q.v.). In 1251 Louis IX. of France arranged a
treaty with the sultan of Egypt under which French consuls were
established at Tripoli and Alexandria, and Du Cange cites a charter of
James of Aragon, dated 1268, granting to the city of Barcelona the right
to elect consuls in _partibus ultramarinis_, &c. The free growth of the
system was, however, hampered by commercial and dynastic rivalries. The
system of French foreign consulships, for instance, all but died out
after the crushing of the independent life of the south and the
incorporation of Provence and Languedoc under the French crown; while,
with the establishment of Venetian supremacy in the Levant, the _baylo_
developed into a diplomatic agent of the first class at the expense of
the consuls of rival states. The modern system of consulships actually
dates only from the 16th century. Early in this century both England and
Scotland had their "conservators" with "jurisdiction to do justice
between merchant and merchant beyond the seas"; but France led the way.
The alliance between Francis I. and Suleiman the Magnificent gave her
special advantages in the Levant, of which she was not slow to take
advantage. Her success culminated in the capitulations signed in 1604,
under the terms of which her consuls were given precedence over all
others and were endowed with diplomatic immunities (e.g. freedom from
arrest and from domiciliary visits), while the traders of all other
nations were put under the protection of the French flag. It was not
till 1675 that, under the first capitulations signed with Turkey,
English consuls were established in the Ottoman empire. Ten years
earlier, under the commercial treaty between England and Spain, they had
been established in Spain.
The frequent wars of the succeeding century hindered the development of
the consular system. Thus, though the system of consuls was regularly
established in France by the ordinance of 1661, in 1760 France had
consuls only in the Levant, Barbary, Italy, Spain and Portugal, while
she discouraged the establishment of foreign consuls in her own ports as
tending to infringe her own jurisdiction. It was not till the 19th
century that the system developed universally. Hitherto consuls had, for
the most part, been business men with no special qualification as
regards training; but the French system, under which the consular
service had been long established as part of the general civil service
of the country, a system that had survived the Revolution unchanged, was
gradually adopted by other nations; though, as in France, consuls not
belonging to the regular service, and having an inferior status,
continued to be appointed. In Great Britain the consular service was
organized in 1825 (see below); in France the series of ordinances and
laws by which its modern constitution was fixed began in 1833. In
Germany progress was hindered by the political conditions of the country
under the old Confederation; for the Hanse cities, which practically
monopolized the oversea trade, lacked the means to establish a consular
system on the French model. The present magnificently organized consular
system of Germany is, then, one of the most remarkable outcomes of the
establishment of the united empire. It was initiated by an act of the
parliament of the North German Confederation (Nov. 8, 1867),
subsequently incorporated in the statutes of the Empire, which laid down
the principle that the German consulates were to be under the immediate
jurisdiction of the president of the Confederation (later the emperor).
The functions, duties and privileges of French and German consuls do not
differ materially from those of British consuls; but there is a great
difference in the organization and _personnel_ of the consular service.
In France, apart from the _consuls elus_ or _consuls marchands_, who are
mere consular agents, selected by the government from among the traders
of a town where it desires to be represented, and unsalaried, the
consular body proper was, by the decrees of July 10, 1880, and April 27,
1883, practically constituted a branch of the diplomatic service. It is
recruited from the same sources, and its members are free to exchange
into the _corps diplomatique_, or vice versa. Candidates for the
diplomatic and consular services have to undergo the same training and
pass the same examinations, i.e. in the constitutional, administrative
and judicial organization of the various powers, in international law,
commercial law and maritime law, in the history of treaties and in
commercial and political geography, in political economy, and in the
German and English languages. They have to serve three years abroad or
attached to some ministerial department before they can enter for the
examination which entitles them to an appointment as attache or as
_consul suppleant_. This assimilation of the consular to the diplomatic
service remains peculiar to France.[3]
In Germany it was enacted by the law of February 28, 1873, that German
consuls must be either trained jurists, or must have passed special
examinations. The result of this system has been the establishment
throughout the world of an elaborate network of trained commercial
experts, directly responsible to the central government, and charged as
one of their principal duties with the task of keeping the government
informed of all that may be of interest to German traders. These annual
consular reports were from the first regularly and promptly published in
the _Deutsche Handelsarchiv_, and have contributed much to the wonderful
expansion of German trade. The right to establish consuls is now
universally recognized by Christian civilized states. Jurists at one
time contended that according to international law a right of
"ex-territoriality" attached to consuls, their persons and dwellings
being sacred, and themselves amenable to local authority only in cases
of strong suspicion on political grounds. It is now admitted that, apart
from treaty, custom has established very few consular privileges; that
perhaps consuls may be arrested and incarcerated, not merely on criminal
charges, but for civil debt; and that, if they engage in trade or become
the owners of immovable property, their persons certainly lose
protection. This question of arrest has been frequently raised in
Europe:--in the case of Barbuit, a tallow-chandler, who from 1717 to
1735 acted as Prussian consul in London, and to whom the exemption
conferred by statute on ambassadors was held not to apply; in the case
of Cretico, the Turkish consul in London in 1808; in the case of Begley,
the United States consul at Genoa, arrested in Paris in 1840; and in the
case of De la Fuente Hermosa, Uruguayan consul, whom the _Cour Royale_
of Paris in 1842 held liable to arrest for debt. In the same way consuls
are often exempt from all kinds of rates and taxes, and always from
personal taxes. They are exempt from billeting and military service, but
are not entitled (except in the Levant, where also freedom from arrest
and trial is the rule) to have private chapels in their houses. The
right of consuls to exhibit their national arms and flag over the door
of the bureau is not disputed.
Until the year 1825 British consuls were usually merchants engaged in
trade in the foreign countries in which they acted as consuls, and their
remuneration consisted entirely of fees. An act of that year, however,
organized the consular service as a branch of the civil service, with
payment by a fixed salary instead of by fees; consuls were forbidden
also to engage in trade, and the management of the service was put under
the control of a separate department of the foreign office, created for
the purpose. In 1832 the restriction as to engaging in trade was
withdrawn, except as regards salaried members of the British consular
service.
The duty of consuls, under the "General Instructions to British
Consuls," is to advise His Majesty's trading subjects, to quiet their
differences, and to conciliate as much as possible the subjects of the
two countries. Treaty rights he is to support in a mild and moderate
spirit; and he is to check as far as possible evasions by British
traders of the local revenue laws. Besides assisting British subjects
who are tried for offences in the local courts, and ascertaining the
humanity of their treatment after sentence, he has to consider whether
home or foreign law is more appropriate to the case, having regard to
the convenience of witnesses and the time required for decision; and,
where local courts have wrongfully interfered, he puts the home
government in motion through the consul-general or ambassador. He sends
in reports on the labour, manufacture, trade, commercial legislation and
finance, technical education, exhibitions and conferences of the country
or district in which he resides, and, generally, furnishes information
on any subject which may be desired of him. He acts as a notary public;
he draws up marine and commercial protests, attests documents brought to
him, and, if necessary, draws up wills, powers of attorney, or
conveyances. He celebrates marriages in accordance with the provisions
of the Foreign Marriage Act 1892, and, where the ministrations of a
clergyman cannot be obtained, reads the burial service. At a seaport he
has certain duties to perform in connexion with the navy. In the absence
of any of His Majesty's ships he is senior naval officer; he looks after
men left behind as stragglers, or in hospital or prison, and sends them
on in due course to the nearest ship. He is also empowered by statute to
advance for the erection or maintenance of Anglican churches, hospitals,
and places of interment sums equal to the amount subscribed for the
purpose by the resident British subjects.
As the powers and duties of consuls vary with the particular commercial
interests they have to protect, and the civilization of the state in
whose territory they reside, instead of abstract definition, we
summarize the provisions on this subject of the British Merchant
Shipping Acts.[4] Consuls are bound to send to the Board of Trade such
reports or returns on any matter relating to British merchant shipping
or seamen as they may think necessary. Where a consul suspects that the
shipping or navigation laws are being evaded, he may require the owner
or master to produce the log-book or other ship documents (such as the
agreement with the seamen, the account of the crew, the certificate of
registration); he may muster the crew, and order explanations with
regard to the documents. Where an offence has been committed on the high
seas, or aboard ashore, by British seamen or apprentices, the consul
makes inquiry on oath, and may send home the offender and witnesses by a
British ship, particulars for the Board of Trade being endorsed on the
agreement for conveyance. He is also empowered to detain a foreign ship
the master or seamen of which appear to him through their misconduct or
want of skill to have caused injury to a British vessel, until the
necessary application for satisfaction or security be made to the local
authorities. Every British mercantile ship, not carrying passengers, on
entering a port gives into the custody of the consul to be endorsed by
him the seamen's agreement, the certificate of registry, and the
official log-book; a failure to do this is reported to the
registrar-general of seamen. The following five provisions are also made
for the protection of seamen. If a British master engage seamen at a
foreign port, the engagement is sanctioned by the consul, acting as a
superintendent of Mercantile Marine Offices. The consul collects the
property (including arrears of wages) of British seamen or apprentices
dying abroad, and remits to H.M. paymaster-general. He also provides for
the subsistence of seamen who are shipwrecked, discharged, or left
behind, even if their service was with foreign merchants; they are
generally sent home in the first British ship that happens to be in want
of a complement, and the expenses thus incurred form a charge on the
parliamentary fund for the relief of distressed seamen, the consul
receiving a commission of 21/2% on the amount disbursed. Complaints by
crews as to the quality and quantity of the provisions on board are
investigated by the consul, who enters a statement in the log-book and
reports to the Board of Trade. Money disbursed by consuls on account of
the illness or injury of seamen is generally recoverable from the owner.
With regard to passenger vessels, the master is bound to give the consul
facilities for inspection and for communication with passengers, and to
exhibit his "master's list," or list of passengers, so that the consul
may transmit to the registrar-general, for insertion in the Marine
Register Book, a report of the passengers dying and children born during
the voyage. The consul may even defray the expenses of maintaining, and
forwarding to their destination, passengers taken off or picked up from
wrecked or injured vessels, if the master does not undertake to proceed
in six weeks; these expenses becoming, in terms of the Passenger Acts
1855 and 1863, a debt due to His Majesty from the owner or charterer,
where a salvor is justified in detaining a British vessel, the master
may obtain leave to depart by going with the salvor before the consul,
who, after hearing evidence as to the service rendered and the
proportion of ship's value and freight claimed, fixes the amount for
which the master is to give bond and security. In the case of a foreign
wreck the consul is held to be the agent of the foreign owner. Much of
the notarial business which is imposed on consuls, partly by statute and
partly by the request of private parties, consists in taking the
declarations as to registry, transfers, &c., under the Mercantile
Shipping Acts. Consuls in the Ottoman empire, China, Siam and Korea have
extensive judicial and executive powers.
Since the incorporation of the British consular service in the civil
service there have been several proposals to "reform" the system with
the view of increasing its usefulness, more particularly from the point
of view of providing assistance to British trade abroad (see _Reports of
Special Committees of the House of Commons on the Consular Service_,
1858, 1872, 1903). It has been frequently urged that British consuls in
their commercial knowledge and intercourse with foreign merchants
compare unfavourably, for example, with the consuls of the United
States. It must be remembered, however, that there are points of
striking dissimilarity between the duties of the consuls of these two
countries. The American consul is necessarily brought much into touch
with the trade and commerce of the country to which he is assigned
through the system of consular invoices (see Ad Valorem); in his
ordinary reports he is not confined to one stereotyped form, and when
preparing special reports (a valuable feature of the United States
consular service) he is liberally treated as regards any expense to
which he has been put in obtaining information. He is practically free
from the multifarious duties which the English consul has to discharge
in connexion with the mercantile marine, nor has he to perform marriage
ceremonies; and financially he is much better off, being allowed to
retain as personal all fees obtained from his notarial duties. The
Committee of 1903 was appointed to inquire, _inter alia_, whether the
limits of age--25 to 50--for candidates should be altered, and whether
service as a vice-consul for a certain period should be required to
qualify for promotion to the rank of consul; whether means could not be
adopted to give consular officers opportunities of increasing their
practical knowledge of commercial matters and to bring them more into
personal contact with the commercial community. The suggestions of the
committee as the result of its inquiries were adopted in principle by
the Foreign Office. The consular service is now grouped into three main
divisions: (1) the general service; (2) Levant and Persia; and (3)
China, Japan, Korea and Siam. The general consular service is graded
into three divisions: first grade, consuls-general, salary L1000 with
local allowances; second grade, consuls-general and consuls, salary L800
and local allowances; third grade, consuls, salary L600, with local
allowances. Vice-consuls have an annual salary of L350, rising by annual
increments of L15 to L450. In the general consular service appointments
are sometimes made to the higher offices from the ranks, but more
usually from a select list of nominees, who must pass a qualifying
examination. A proportion of the vacancies are reserved for competition
amongst candidates who have had actual commercial experience. Divisions
2 and 3 are recruited by open competition. There were at one time a
small number of commercial agents whose business consisted in watching
and reporting on the commerce, industries and products of special
districts, and in answering inquiries on commercial subjects. Their
duties were subsequently transferred to the consular staff, and a new
class of officers, consular attaches, created. The consular attaches
divide their time between special investigations abroad, and visits to
manufacturing districts in the United Kingdom. The headquarters of the
commercial attaches in Europe, except those at Paris and Constantinople,
were transferred to London, without defined districts, in 1907 (see
_Report on the System of British Commercial Attaches and Agents_, 1908,
Cd. 3610). "Pro-consuls" are frequently appointed for the purpose of
administering oaths, taking affidavits or affirmations, and performing
notarial acts under the Commissioners for Oaths Acts 1889.
The position of the United States consuls is minutely described in the
Regulations, Washington, 1896. Under various treaties and conventions
they enjoy large privileges and jurisdiction. By the treaty of 1816 with
Sweden the United States government agreed that the consuls of the two
states respectively should be sole judges in disputes between captains
and crews of vessels. (Up to 1906 there were eighteen treaties
containing this clause.) By convention with France in 1853 they likewise
agreed that the consuls of both countries should be permitted to hold
real estate, and to have the "police interne des navires a commerce." In
Borneo, China, Korea, Morocco, Persia, Siam, Tripoli and Turkey an
extensive jurisdiction, civil and criminal, is exercised by treaty
stipulation in cases where United States subjects are interested.
Exemption from liability to appear as a witness is often stipulated. The
question was raised in France in 1843 by the case of the Spanish consul
Soller at Aix, and in America in 1854 by the case of Dillon, the French
consul at San Francisco, who, on being arrested by Judge Hoffmann for
declining to give evidence in a criminal suit, pulled down his consular
flag. So, also, inviolability of national archives is often stipulated.
To the consuls of other nations the United States government have always
accorded the privileges of arresting deserters, and of being themselves
amenable only to the Federal and not to the States courts. They also
recognize foreign consuls as representative suitors for absent
foreigners.
The United States commercial agents are appointed by the president, and
usually receive an _exequatur_. They form a class by themselves, and are
distinct from the consular agents, who are simply deputy consuls in
districts where there is no principal consul.
By a law of April 1906 the U.S. consular service was reorganized and
graded, the office of consul-general being divided into seven classes,
and that of consul into nine classes; and on June 27 an executive order
was issued by President Roosevelt governing appointments and promotions.
See A. de Miltitz, _Manuel des consuls_ (London and Berlin,
1837-1843); Baron Ferdinand de Cussy, _Dictionnaire du diplomate et
du consul_ (Leipzig, 1846), and _Reglements consulaires des
principaux etats maritimes de l`Europe et de l`Amerique_ (ib., 1851);
Tuson, _British Consul's Manual_ (London, 1856); De Clercq, _Guide
pratique des consulats_ (1st ed., 1858, 5th ed. by de Vallat, Paris,
1898); C. J. Tarring, _British Consular Jurisdiction in the East_
(London, 1887); Lippmann, _Die Konsularjurisdiktion im Orient_
(Berlin, 1898); Zorn, _Die Konsulargesetzgebung des deutschen Reichs_
(2nd ed., Berlin, 1901); v. Koenig, _Handbuch des deutschen
Konsularwesens_ (6th ed., Berlin, 1902); Martens, _Das deutsche
Konsular-und Kolonialrecht_ (Leipzig, 1904); Malfatti di Monte
Tretto, _Handbuch des oesterreichischungarischen Konsularwesens_ (2
vols., 2nd ed., Vienna, 1904). See also the _Parliamentary Reports_
referred to in the text. For British consuls much detailed
information, including, e.g., minute directions for the uniforms of
the various grades, will be found in the official _Foreign Office
List_ published annually. As regards American consuls, see C. L.
Jones, _The Consular Service of the U. S. A._ (Philadelphia, 1906);
_Publications of Univ. of Pennsylvania_, "Series in Pol. Econ. and
Public Law," No. 18; and Fred. Van Dyne, _Our Foreign Service_
(Rochester, N.Y., 1909).