a manner that it confers powers upon Congress and officers of the Government wholly beyond those conferred by the Constitution, is the establishment, maintenance and regulation of consular courts in foreign countries, having jurisdiction over citizens of the United States, with power to try and condemn them for crimes committed in foreign countries.1

Nothing more sacred can be imagined by the Anglo-Saxon mind than the right to a trial by jury in criminal cases. The Constitution as originally framed contained in section 2 of Article III the provision, "The trial of all crimes, except in cases of impeachment shall be by jury;" the 6th Amendment of the Constitution which extends "to all criminal prosecution" further assumes to accused persons in all instances the right to a speedy and public trial by an impartial jury of the State and district where the crime shall have been committed, aud also that he shall be informed of the nature and cause of the prosecution, confronted with the witnesses, have compulsory process for obtaining witnesses in his favor, and the assistance of counsel for his defense.

In the notes to this section the author has quoted the notes made by Mr. Davis as amended by Mr. Haswell on the subject of Consular Courts.2

As the following notes prepared by J. C. Bancroft Davis and John H. Haswell, for the official publications of United States Treaties and Conventions of 1873 and 1889, are a very complete summary of the law

451. Trial by jury not necessary in consular courts established by treaty.-Notwithstanding the broad expres

on the subject of consular courts of the United States established in foreign countries, they are quoted at length with the citations. The extracts are taken from the edition of 1889, pages 1279-1285, and page 1289.

NOTE ON CONSULS.

A consul is not a diplomatic officer; is entitled to no diplomatic privilege; (2) aud is not exempt from criminal prosecution for offenses against the laws of the country in which he resides. (3)

The second section of the third article of the Constitution provides that the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers, and consuls. This privilege is not a personal one, and is not waived by an omission to plead it in the court below. (4)

Consuls represent the individual subjects or citizens of their respective nations when there is no other representation, and, when duly recognized, are competent parties to assert or defend the rights of property of their fellow-citizens or subjects in a court of admirality without special procuration; (5) but they cannot receive actual restitution of the property in controversy without a special authority. (6)

Various treaties have conferred upon foreign Consuls in the United States the power of determining disputes between masters and crews of the vessels of their nationality, and with the aid of the local authorities of arresting and returning deserters from such vessels. Without and independently of a treaty a consul has no such judicial power. (7) The act of apprehending and delivering the seamen under the Treaties and the acts of Congress to enforce them are judicial and not executive acts. (8)

The act to enforce Treaty provisions respecting disputes between masters and crews was approved June 11, 1864. (9) It is not to take effect as to the ships or vessels of any nation unless the President shall have been satisfied that similar provisions have been made by the other contracting party for the execution of the Treaty, and shall have issued his proclamation to that effect. On the 10th of February, 1870, proclamation was made under this act as to the Treaties with France, Prussia, and the other States of the North German Union, and Italy; (1) and on the 11th of May, 1872, as to the Treaty with Sweden and Norway. (11) This statute authorizes any court of record of the United States, or any judge thereof, or any commissioner appointed under the laws of the

(2) 1 Op. At.-Gen., 41, Bradford; Ib., 77, Lee; Ib., 406, Wirt; 2 Ib., 378, Berrien; Ib., 725, Butler. (8) 2 Dallas, 299, note. (4) Davis vs. Packard, 7 Peters, 276. () The Bello Coruñes, 6 Wheaton, 152. (6) Ib. (7) 2 Op. At.-Gen., 378, Berrien; 6 Ib., 148, Cushing. (8) 9 Op. At.-Gen., 96, Black, (9) 13 St. at L. 121. (10) 16 St. at L. 1130. (1) 17 St. at L. 955.

sions "The trial of all crimes" in Article III, and "in all criminal prosecutions," in Amendinent VI of the Constitu

United States to take bail or affidavits, or for other judicial purposes whatsoever, to receive the application of the consular officer, to issue process against the person complained of, and if it shall appear, on his being returned before the magistrate, that he is not a citizen of the United States, and if a prima facia case shall be made out that the matter concerns only the internal order and discipline of the foreign vessel, and does not affect directly the laws of the United States or the rights and duties of any citizen, then the magistrate shall commit the seaman to prison to abide the lawful order or control of the master: provided the expenses of the proceeding shall be paid by the consular officer, and the seaman shall not be detained for more than two months after his arrest.

The statute respecting the restoration of deserters was approved March 2, 1829, and was entitled " An act to provide for the apprehension and delivery of deserters from certain foreign vessels in the ports of the United States." (1) It provides "that on application of a consul or vice-consul of any foreign government, having a Treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government while in any port of the United States; and on proof, by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged at the time of desertion to the crew of said vessel, it shall be the duty of any court judge, justice, or other magistrate having competent power, to issue warrants to cause the said person to be arrested for examination; and if, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the said consul or vice-consul to be sent back," etc.

Another series of Treaties grants to the consuls of the United States in the territories of certain Oriental powers exclusive jurisdiction over disputes between citizens of the United States, or over offenses committed by the citizens of the United States, or both.

The first statute to affirm and regulate this jurisdiction was approved on the 11th of August, 1848. (2) Attorney-General Cushing gave an exhaustive opinion on this statute. (3) In 1860, a new statute was passed, (4) which was amended in 1870. (5) Under these various statutes, the following is the present condition of the law and practice in this respect: The consuls and commercial agents of the United States at islands or in countries not inhabited by any civilized people, or recognized by any Treaty of the United States, are invested with power to hear and determine cases in regard to civil rights where the debt or damage does not exceed $1,000 exclusive of costs, and also to issue warrants to arrest

(1) 4 St. at L. 359. (2) 9 St. at L. 276. (8) 7 Op. At.-Gen. 495; see also Ib., 565. (4) 12 St. at L. 72. (5) 16 St. at L. 183.

tion, the United States has entered into treaties with many foreign countries (generally Oriental), in which the right of

offenders, to arraign, try, and convict them, and to punish them to the extent of $100 fine, or to imprisonment not to exceed sixty days.

The provisions of the statute of 1860 apply directly to the consulates in China, Japan, and Siam. They apply in terms to Turkey, (see section 21 of the act of 1860,) so far as they relate to crimes and offenses; and as to civil cases, so far as the laws of Turkey permit.

The authenticity of the English version of the Treaty of 1830 with Turkey, under which exterritorial rights had been claimed and allowed, has been recently questioned. The present attitude of the question is set forth in the note entitled "Ottoman Porte."

The operation of the statute of 1860 is extended (®) to Persia, to Tripoli, Tunis, Morocco, and Muscat; (7) to Egypt (8) and to Madagascar, and all other countries with which Treaties may hereafter be made. (9) The jurisdiction is to be exercised in conformity with-1st, the laws of the United States; 2d, with the common law, including equity and admiralty; and, 3d, with decrees and regulations, having the force of law, made by the Ministers of the United States in such country respectively, to supply defects and deficiencies in the laws of the United States, or the common law as above defined.

This power of the Ministers to make such laws and regulations is limited, by instructions from the Department of State, to acts necessary to organize and give efficiency to the courts created by the act.

Mr. Fish, on the 26th of February, 1873, instructed the Minister at Japan, on this subject thus: "The authority of a Minister, in an oriental country, to make regulations having the force of law within the country to which he is accredited, is derived from the act of 1860, entitled 'An act to carry into effect provisions of the Treaties between the United States, China, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, and for other purposes.'

"The first twenty-eight sections (except the 21st) relate to the treaties referred to in the title. The remainder of the act refers to the 'other purposes.' Sections one, four, and five therefore relate exclusively to the subject of carrying into effect treaty provisions conferring judicial powers on Ministers.

"The first section provides that 'to carry into full effect the provisions of the Treaties, etc., ... the Ministers and the Consuls of the United States duly appointed to reside in each of the said countries shall, in addition to other powers and duties imposed upon them, respectively, by the provisions of such Treaty, respectively, be invested with the judicial authority herein described.'

"The fourth section defines how those powers are to be exercised: namely, in conformity with the laws of the United States, 'but in all cases where such laws are not adapted to the object,' i. e., the exercise

(6) Section 28. (7) Section 29. (8) 14 St. at L. 322. (9) 16 St. at L. 183.

trial by jury and those other rights which are assured to accused persons, under the Anglo-Saxon principles of presump

of such judicial powers,) 'or are deficient in the provisions necessary to furnish suitable remedies, the common law, including equity and admiralty, shall be extended in like manner over such citizens and others in the said countries; and if defects still remain to be supplied, and neither the common law, including equity and admiralty, nor the Statutes of the United States, furnish appropriate and suitable remedies, the Ministers in the said countries, respectively, shall by decrees and regulations, which shall have the force of law, supply such defect and deficiencies.' "The fifth section provides that in order to organize and to carry into effect the system of jurisprudence demanded by such treaties, respectively, the said Ministers, with the advice of the several Consuls in each of the said countries respectively, or so many of them as can be conveniently assembled, shall prescribe the forms of all processes which shall be issued by any of said Consuls, and . make all such decrees and regulations from time to time as the exigencies may demand; and all such regulations, decrees, and orders shall be plainly drawn up in writing, and submitted as above provided for the advice of the Consuls, or as many of them as can be consulted without prejudicial delay or inconvenience, who shall each signify his assent or dissent in writing, with his name subscribed thereto; and, after taking such advice and considering the same, the Minister in the said countries, respectively, may, nevertheless, by causing the decree, order, or regulation to be published, with his signature thereto, and the opinions of his advisers inscribed thereon, make it to become binding and obligatory until annulled or modified by Congress.'

"It is the opinion of the Department that this statute confers upon the Minister in Japan no authority to make a regulation requiring citizens of the United States to register their names, and no power to enforce such a regulation judicially.

"The authority conferred by the act is defined in the first section to be a judicial authority. By the fourth section the Minister is required to execute that power in conformity with the laws of the United States, with authority to vary from those laws in two cases only; 1. Where those laws are not adapted to the exercise of the judicial authority conferred by section one; 2. Where they are deficient in the provisions to furnish suitable remedies. In each of those contingencies the Minister has authoriy to make regulations in order to furnish suitable and appropriate remedies,' and for no other purpose whatever.

"The fifth section is still more explicit on this point. Every power named in this section is recited to be conferred upon the Minister, 'in order to organize and carry into effect a system of jurisprudence.'" (1) The power of originating civil and criminal proceedings is vested by the statute in Consular officers exclusively.

They can also, sitting alone, determine all criminal cases where the

(1) 1 F. R. 1873, 571.