In Edmund Halley's southern catalogue (Catalogus stellarum australium), published in 1679 and incorporated in Flamsteed's Historia coelestis (1725), the following constellations are named:—Piscis australis, Columba Noachi, Argo navis, Robur Caroli, Ara, Corona australis, Grus, Phoenix, Pavo, Apus or Avis Indica, Musca apis, Chameleon, Triangulum australe, Piscis volans, Dorado or Xiphias, Toucan or Anser Americanus, and Hydrus. Flamsteed's maps also contained Mons Menelai. This list contains nothing new except Robur Caroli, since Columba Noachi (Noah's dove) had been raised to the skies by Bartschius in 1624. The constellation Robur Caroli and also the star Cor Caroli ([alpha] Canum Venaticorum) were named by Halley in honour of Charles II. of England.

In 1690 two posthumous works of Johann Hevelius (1611-1687), the Firmamentum sobiescianum and Prodromus astronomiae, added several new constellations to the list, viz. Canes venatici (the Greyhounds), Lacerta (the Lizard), Leo minor (Little Lion), Lynx, Sextans Uraniae, Scutum or Clypeus Sobieskii (the shield of Sobieski), Vulpecula et Anser (Fox and Goose), Cerberus, Camelopardus (Giraffe), and Monoceros (Unicorn); the last two were originally due to Jacobus Bartschius. In 1679 Augustine Royer introduced the most interesting of the constellations of the southern hemisphere, the Crux australis or Southern Cross. He also suggested Nubes major, Nubes minor, and Lilium, and re-named Canes venatici the river Jordan, and Vulpecula et Anser the river Tigris, but these innovations met with no approval. The Magellanic clouds, a collection of nebulae, stars and star-clusters in the neighbourhood of the south pole, were so named by Hevelius in honour of the navigator Ferdinand Magellan.

Many other star-groupings have been proposed from time to time; in some cases a separate name has been given to a part of an authoritatively accepted constellation, e.g. Ensis Orionis, the sword of Orion, or an ancient constellation may be subdivided, e.g. Argo (ship) into Argo, Malus (mast), Vela (sails), Puppis (stern), Carina (keel); and whereas some of the rearrangements, which have been mostly confined to the southern hemisphere, have been accepted, many, reflecting nothing but idiosyncrasies of the proposers, have deservedly dropped into oblivion. Nicolas Louis de Lacaille, who made extended observations of the southern stars in 1751 and in the following years, and whose results were embodied in his posthumous Coelum australe stelliferum (1763), introduced the following new constellations:—Apparatus sculptoris (Sculptor's workshop), Fornax chemica (Chemical furnace), Horologium (Clock), Reticulus rhomboidalis (Rhomboidal net), Caela sculptoris (Sculptor's chisels), Equuleus pictoris (Painter's easel), Pyxis nautica (Mariner's compass), Antlia pneumatica (Air pump), Octans (Octant), Circinus (Compasses), Norma alias Quadra Euclidis (Square), Telescopium (Telescope), Microscopium (Microscope) and Mons Mensae (Table Mountain). Pierre Charles Lemonnier in 1776 introduced Tarandus (Reindeer), and Solitarius; J. J. L. de Lalande introduced Le Messier (after the astronomer Charles Messier) (1776), Quadrans muralis (Mural quadrant) (1795), Globus aerostaticus (Air balloon) (1798), and Felis (the Cat) (1799). Martin Poczobut introduced in 1777 Taurus Poniatovskii; Bode introduced the Honores Frederici (Honours of Frederick) (1786), Telescopium Herschelii (Telescope of Herschel) (1787), Machina electrica (Electrical machine) (1790), Officina typographica (Printing press) (1799), and Lochium funis (Log line); and M. Hell formed the Psalterium Georgianum (George's lute).

The following list gives the names of the constellations now usually employed: they are divided into three groups:—north of the zodiac, in the zodiac, south of the zodiac. Those marked with an asterisk have separate articles.

Northern (28).

*Andromeda *Cepheus *Hercules Pegasus *Aquila *Coma Berenices Lacerta *Perseus *Auriga *Corona borealis *Leo minor *Sagitta *Booetes *Cygnus Lynx Serpens Camelopardus *Delphinus *Lyra Triangulum *Canes venatici Draco { Ophiuchus *Ursa major *Cassiopeia Equuleus {*Serpentarius *Ursa minor *Vulpecula et Anser

Zodiacal (12).

*Aquarius *Capricornus *Libra *Scorpio *Aries *Gemini *Pisces *Taurus *Cancer *Leo *Sagittarius *Virgo.

Southern (49).

Antlia Columba Noachi Lupus Puppis (pneumatica) Corona australis Malus Recticulum Apus Corvus Microscopium Sculptor *Ara Crater Monoceros (Apparatus Argo Crux Musca australis sculptoris) Caela sculptoris Dorado Norma Scutum Sobieskii (Caelum) *Eridanus Octans Sextans *Canis major Fornax chemica *Orion Telescopium Canis minor Grus Pavo Toucan Carina Horologium Phoenix Triangulum australe *Centaurus *Hydra Pictor Vela *Cetus Hydrus (Equuleus Volans Chameleon Indus pictoris) (Piscis volans) Circinus Lepus Piscis australis (C. E.*)

FOOTNOTE:

[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).

FOOTNOTES:

[3] The title of consul was borne by the chief municipal officers of several cities of the south of France during the middle ages and up to the Revolution. The name was not due to their being the successors of the chiefs of the Roman municipia. They were members of the governing body known as the consulat, and in Latin documents are sometimes styled consiliarii, i.e. councillors. The consulat itself is not traceable beyond the 12th century.

[2] Particular quarters of mercantile cities were assigned to foreign traders and were placed under the jurisdiction of their own magistrates, variously styled syndics, provosts (praepositi), echevins (scabini), &c., who had power to fine or to expel from the quarter. The Hanseatic League (q.v.), particularly, had numerous settlements of this kind, the earliest being the Steelyard at London, established in the 13th century.

[3] i.e. as regards the organization of the system. Consuls, or consuls-general, of other countries have sometimes a diplomatic or quasi-diplomatic status. Consuls-general charges d'affaires, e.g., rank as diplomatic agents. Of these the most notable is the British agent and consul-general in Egypt, whose position is unique. The diplomatic agent of Belgium at Buenos Aires, e.g., is minister-resident and consul-general, and the minister of Ecuador in London is consul-general charge d'affaires.

[4] See also instructions to consuls prepared by the Board of Trade and approved by the secretary of state for foreign affairs.



"CONSULATE OF THE SEA," a celebrated collection of maritime customs and ordinances (see also Sea Laws) in the Catalan language, published at Barcelona in the latter part of the 15th century. Its proper title is The Book of the Consulate, or in Catalan, Lo Libre de Consolat, the name being derived from the fact that it embodied the rules of law followed in the maritime cities of the Mediterranean coast by the commercial judges known generally as consuls (q.v.). The earliest extant edition of the work, which was printed at Barcelona in 1494, is without a title-page or frontispiece, but it is described by the above-mentioned title in the epistle dedicatory prefixed to the table of contents. The only known copy of this edition is preserved in the National Library in Paris. The epistle dedicatory states that the work is an amended version of the Book of the Consulate, compiled by Francis Celelles with the assistance of numerous shipmasters and merchants well versed in maritime affairs. According to a statement made by Capmany in his Codigo de los costumbras maritimas de Barcelona, published at Madrid in 1791, there was extant to his knowledge in the last century a more ancient edition of the Book of the Consulate, printed in semi-Gothic characters, which he believed to be of a date prior to 1484. This is the earliest period to which any historical record of the Book of the Consulate being in print can be traced back. There are, however, two Catalan MSS. preserved in the National Library in Paris, the earliest of which, being MS. Espagnol 124, contains the two first treatises which are printed in the Book of the Consulate of 1494, and which are the most ancient portion of its contents, written in a hand of the 14th century, on paper of that century. The subsequent parts of this MS. are on paper of the 15th century, but there is no document of a date more recent than 1436. The later of the two MSS., being MS. Espagnol 56, is written throughout on paper of the 15th century, and in a hand of that century, and it purports, from a certificate on the face of the last leaf, to have been executed under the superintendence of Peter Thomas, a notary public, and the scribe of the Consulate of the Sea at Barcelona.

The edition of 1494, which is justly regarded as the editio princeps of the Book of the Consulate, contains, in the first place, a code of procedure issued by the kings of Aragon for the guidance of the courts of the consuls of the sea, in the second place, a collection of ancient customs of the sea, and thirdly, a body of ordinances for the government of cruisers of war. A colophon at the end of these ordinances informs the readers that "the book commonly called the Book of the Consulate ends here"; after which there follows a document known by the title of The Acceptations, which purports to record that the previous chapters and ordinances had been approved by the Roman people in the 11th century, and by various princes and peoples in the 12th and 13th centuries. Capmany was the first person to question the authenticity of this document in his Memorias historicas sobre la marina, &c., de Barcelona, published at Madrid in 1779-1792. Pardessus and other writers on maritime law followed up the inquiry in the 19th century, and have conclusively shown that the document, whatever may have been its origin, has no proper reference to the Book of the Consulate, and is, in fact, of no historical value whatsoever. The paging of the edition of 1494 ceases with this document, at the end of which is the printer's colophon, reciting that "the work was completed on the 14th of July 1494, at Barcelona, by Pere Posa, priest and printer." The remainder of the volume consists of what may be regarded as an appendix to the original Book of the Consulate. This appendix contains various maritime ordinances of the kings of Aragon and of the councillors of the city of Barcelona, ranging over a period from 1340 to 1484. It is printed apparently in the same type with the preceding part of the volume. The original Book of the Consulate, coupled with this appendix, constitutes the work which has obtained general circulation in Europe under the title of The Consulate of the Sea, and which in the course of the 16th century was translated into the Castilian, the Italian, and the French languages. The Italian translation, printed at Venice in 1549 by Jean Baptista Pedrezano, was the version which obtained the largest circulation in the north of Europe, and led many jurists to suppose the work to have been of Italian origin. In the next following century the work was translated into Dutch by Westerven, and into German by Engelbrecht, and it is also said to have been translated into Latin.