The use of the term “non-christian”, which in the present day is giving
place to “uncivilized”, is as old as the consular system itself; that is
to say, it has come down to us from mediaeval times when the consular
system originated. It might still have been retained had it not been for
the progress of one country, Japan, which may be better described as
civilized rather than Christian.
The judicial power of a consul, therefore, remains as a relic of
mediaevalism, and it remains because the need remains; for just as
civilized countries five hundred years ago were unwilling to look to the
Turk for justice, so they are to-day, and treaties to that effect secure
Turkish recognition of this humiliating state of things. As it is with
Turkey so it is with China, Korea, Siam, Persia, Madagascar, Borneo,
etc., the treaties varying considerably in each case.
This assumption of superiority by the self-styled civilized countries
would be hard to justify on the ground of theoretical ethics, but
apparently theoretical and practical or applied ethics sometimes diverge
very widely, and when they do diverge no statesman hesitates as to which
he shall follow.
From the tiresome details of Title XLVII, U. S. Revised Statutes, which
deals fully with courts of this character, the following points may be
gleaned:
(1) Cases arising between Americans are tried before American officers.
(2) Cases arising between Americans and others not natives are arranged
by their respective consular officers; in Turkey they are tried in the
consulate of the defendant.
(3) Cases arising between Americans and natives are tried before an
American tribunal in China, Siam and Madagascar; before a mixed tribunal
in Persia, the Barbary States and Turkey.
It is rather startling to notice the power entrusted to one man, as is
done by our government in the case of the consuls to these countries. A
consul, for instance, can issue a warrant for the arrest of a man merely
upon his own initiative, and can then proceed to try him, he himself
acting as judge and jury. He first submits a list of men to the
minister, who selects from one to four to sit with him in the trial as
advisers. These advisers must record and sign their judgment of the
case, but it is the consul’s judgment that condemns or acquits.
In trials for capital offenses there must be four advisers, and their
judgment must concur with the consul’s, and their combined judgment must
be approved by the minister before there can be conviction. In some
cases appeal may be made to the minister and rarely to a U. S. circuit
court, but in general the decision of the consul is final. Hence,
although the power of life and death is lodged in the hands of the
consul, it is well safeguarded, and the danger of its abuse is more
apparent than real.
There are some miscellaneous duties devolving upon the consular service
which we will notice briefly before turning finally to the duties to the
State Department.