tion of innocence, are not recognized for the establishment of consular courts having exclusive jurisdiction over American citizens accused of crime in those countries.

fine imposed does not exceed five hundred dollars, or the term of imprisonment does not exceed ninety days; and may impose fines to the extent of fifty dollars, or imprisonment, not exceeding twenty-four hours, for contempt committed in the presence of the court, or for failure to obey a summons.

They may also, when of opinion that legal questions may arise in which assistance may be useful, or that a severer punishment is required, summon associates, not more than four in number, taken by lot from a list to be previously approved by the Minister, to sit with them on the trial, each of whom is to enter upon the record his judgment and opinion, and to sign the same; but the Consul himself gives the judgment in the case, whether it accords with that of his associates or not.

In trials for capital offenses there must be four associates, who must all agree with the Consul, in order to convict, and the opinion must be approved by the Minister before there can be a conviction.

They have exclusive jurisdiction in civil proceedings where the damage demanded does not exceed five hundred dollars.

When the amount demanded exceeds five hundred dollars, or when the Consul thinks the case involves legal perplexities, and that assistance will be useful, he may summon to his aid not less than two nor more than three associates, to be selected from a list of persons nominated by the Consul, for the purposes of the act, to the Minister, and approved by him. They shall hear the case with him. The Consul, however, is to give the judgment. If they agree with him, the judgment is final. If they, or any of them, disagree, the opinions of all are to be noted on the record and subscribed by them, and the judgment of the Consul is then subject to appeal.

Such a Consular court cannot, in a suit by a person not a citizen of the United States, entertain a set-off further than to the extent of the claim asserted by the plaintiff, and cannot render a judgment against a person of foreign birth not a citizen of the United States. (2)

An appeal may be taken in criminal cases from a decision of a Consul acting alone, where the fine exceeds one hundred dollars, or the time of imprisonment for a misdemeanor exceeds ninety-days.

If associates sit with the Consul in criminal proceedings, (except capital,) an appeal can be taken to the Minister only in case of disagreement between him and one of his associates.

In civil proceedings, in cases arising before the 1st day of July, 1870, an appeal can only be taken to the Minister from cases in which associates sit with the Consul, and in which there is not an agreement of opinion.

In cases arising after the 1st day of July, 1870, an appeal may be taken to the Minister from final judgment in the Consular courts of China

(2) 11 Op. At. Gen., 474, Speed.

It is apparent at once that this is a great and salutary protection to American citizens, and enables them to avoid many disadvantages which they would be under if they were and Japan, where the matter in dispute exceeds five hundred dollars, but does not exceed two thousand five hundred dollars, exclusive of costs; and where the matter exceeds two thousand five hundred dollars, exclusive of costs, the appeal may be taken to the Circuit Court for the district of California.

There are also regulations for appeals from the judgments of ministers to the Circuit Court of California.

In Tunis, Morocco, and Tripoli, citizen of the United States committing murder or homicide upon a subject of those powers are to be tried by a mixed court, at which the Consul is to "assist."

The undisputed portion of the fourth article of the Treaty of 1830 with the Ottoman Porte provides for the supervision of the American Dragoman in the hearing of all litigations and disputes arising between the subjects of the Sublime Porte and citizens of the United States.

It is not in dispute that the usages observed towards other Franks are to be observed toward citizens of the United States. These usages are believed to be the following:

1. Turkish tribunals for questions between subjects of the Porte and foreign Christians.

2. Consular Courts for the business of each nation of foreign Christians.

3. Trial of questions between foreign Christians of different nations in the Consular Court of the defendant's nation.

4. Mixed tribunals of Turkish magistrates and foreign Christians at length substituted in part for cases between Turks and foreign Christians.

5. Finally, for causes between foreign Christians, the substitution at length of mixed tribunals in place of the separate courts; this arrangement introduced at first by the Legations of Austria, Great Britain, France, and Russia, and then tacitly acceded to by the Legations of other foreign Christians.

A provision in a Treaty that a Consul may ex officio administer upon the estates of citizens of his nationality dying within his jurisdiction without legal heirs there, gives no right of reclamation against the United States for the value of the property of such a decedent improperly administered on by a State Court, unless the Consul first exhausts his remedies at law to prevent such State administration. (1)

Judicial powers are not necessarily incident to the office of consul, although usually conferred in non-Christian countries.

The Supreme Court of the United States has held that the treaties with the Ottoman Empire of 1830 and 1862 concede to the United States the same privileges in this respect as are enjoyed by other Christian nations, which may be exercised by the consuls. (2)

(1) 9 Op. At.-Gen., 383, Black. (2) Dainese vs. Hale, 91 U. S. S. C. 13.

tried by the local courts, in which they would not have the benefit of that presumption of innocence which is, as we have said before, the birthright of the Anglo-Saxon nation;

In the revision of the Statutes the acts to carry into effect treaty provisions with certain non-Christian countries (3) appear in Title 47.

In the enumeration of consular officers, upon whom judicial duties are devolved, consuls-general and vice-consuls were omitted in the revision of the Statutes. (4) The omission was rectified by an act of Congress approved February 1, 1876. (5)

The Federal court in California has considered the requisites in cases of appeal from the consular and ministerial courts of China and Japan to the Circuit Court of the district of California. (6)

A consul cannot be required to certify to the official character or acts of a foreign notary public. (7)

A consul has no authority, since the passage of the act of 1872, to demand and receive from the master of a vessel the money and effects of a deserter. (8)

The consular officers named in article 10 of the treaty of 1828 with Prussia, have exclusive jurisdiction in a claim made by the crew against the vessel for the recovery of wages. (9)

An act (1) of Congress approved March 23, 1874, authorized the President, when he should receive satisfactory information that the Ottoman government, or that of Egypt, had organized new tribunals likely to secure to citizens of the United States the same impartial justice enjoyed under the exercise of judicial functions by diplomatic and consular officers, pursuant to the act of June 22, 1860, to suspend the operation of such act and to accept for citizens of the United States the jurisdiction of such new tribunals. The Department of State having been informed of the organization of such tribunals in Egypt, the President, upon March 27, 1876, issued a proclamation (11) suspending, during the pleasure of the President, the operation of the act of June 22, 1860, within the dominions of the government of Egypt, so far as the jurisdiction of the new tribunals embraced matter cognizable by the minister, consuls, or other functionaries of the United States in said dominions, except as to cases in progress.

The question of the judicial authority of consuls over persons serving on American vessels in China and Japan has been construed as authorizing consular officers to assume jurisdiction where offenses are committed on shore by foreigners serving on board American merchant vessels, when such foreigners are citizens or subjects of countries having no treaty engagements upon the subject with China and Japan, or when,

(3) June 22, 1860; July 28, 1866; July 1, 1870. (4) R. S., §§ 4083 to 4130. (5) 19 Stat. at L. 2. () Steamer Spark vs. Lee Choi Chum, 1 Sawyer, 713. (7) 12 Op. At.-Gen., 1, Stanbery. (8) 14 Op. At.-Gen. 520, Williams. () The Elwine Kreplin, 9 Blatchford, 438. (1) 18 Stat. at L. 23. (11) 19 Stat. at L. 662.

and it also enables them, if convicted, to escape the barbarous punishments inflicted in those countries in pursuance of customs repugnant to our own.

being subjects or citizens of treaty powers, their own consuls decline to assume jurisdiction. (5)

Persons serving on board national vessels who have committed offenses on shore in Japan and China are held to be subject to the jurisdiction of the consul of the country under whose flag they are serving. (") A sentence of imprisonment rendered by a consular court cannot be legally executed beyond the territorial jurisdiction of the court. Persons convicted at Smyrna or Constantinople cannot, therefore, be brought to the United States for imprisonment. (7)

But transfers have been made under conditional pardon. In January, 1880, one O'Neil was sentenced to twenty years' imprisonment for manslaughter by the consular court for Osaka and Hiogo, Japan. This sentence was commuted by conditional pardon to ten years' imprisonment, to be served in the United States consular jail at Kanagawa. In January, 1882, the President ordered his transfer to San Quentin, California. Mirzan was convicted of murder at Alexandria, Egypt, and sentenced to be hanged, but his sentence was commuted, July 29, 1880, to imprisonment for life in the United States prisou at Smyrna. In August of 1882 the President directed that the prisoner be transferred to Albany, New York, and that the remainder of his sentence be served out at that place. (8) See, also, the case of John Ross, under title "Exterritoriality."

A consul of the United States in China cannot entertain a criminal charge against a citizen or subject of another power. (9)

In 1874 the German government raised objection to the taking of testimony by consuls of the United States in Germany except as provided by article 9 of the treaty of 1871 with the German Empire. The Department of State endeavored to induce the German authorities to permit testimony to be taken with the same freedom as in the United States, but without effect, it being stated that the law of Germany provided for letters rogatory in such cases. (19)

NOTE ON EXTERRITORIALITY.

The rights of exterritoriality enjoyed by citizens of the United States in certain Oriental countries are considered under the title "Consuls;" the Consular officers being the persons entrusted with the enforcement of those rights.

The Tribunal of Arbitration at Geneva held that "the privilege of exterritoriality, according to vessels of war, had been admitted into the law of nations, not as an absolute right, but solely as a proceeding

(5) MS. Dept. of State. (8) MS. Dept. of State. F. R., 1875, 537, 562, 573.

(") Ib. (7) 14 Op. At.-Gen. 522, Williams. (9) 1 F. R. 1873, 139. (1) F. R. 1874, 462; 1

But while a plan of this nature may be adopted by a constitutional government for the benefit of its citizens, it canfounded on the principle of courtesy and mutual deference between different nations." (2) This is in accordance with the settled practice of the United States. Attorney-General Lee, in the early days of the Republic, gave his opinion that it is lawful to serve either civil or criminal process upon a person on board a British man-of-war lying within our territory. (3)

The Secretary of State, in an instruction (4) to Mr. DeLong, dated December 20, 1870, informed him that it was understood by the Department of State that the power conferred upon a minister by sections 5 and 6 of the act approved June 22, 1860, was confined to providing a course of procedure in pursuing judicial remedies, and did not extend to the creation of new rights or duties, or to the modification of personal rights and obligations under existing law. The regulations for the consular courts in Japan proposed by Mr. DeLong which were of a mixed character, containing regulations as to procedure and new enactments, were submitted to Congress, (5) but no action was taken.

Upon several occasions the Department has expressed the view that no authority was conferred upon diplomatic officers to create new offenses, or prescribe new punishments for offenses. When regulations have been proposed containing penal provisions in reference to the sale of liquor, etc., it was held that such power was not conferred upon ministers or consuls. (6) In a dispatch (7) from the minister of the United States in Japan to the Secretary of State, it is stated that, with the exception of the consuls of Germany and Holland, it does not appear that consuls in Japan have authority to make regulations having the force of law.

Question has arisen as to the right of the government of Japan to enact regulations providing for security and good order, such as pilotage, municipal or hunting regulations, and to make them binding on foreigners. On such subjects it seems necessary that power to enact binding regulations should exist somewhere, and while a disposition has been manifested to put such regulations, when approved, in force as against foreigners, it has been insisted at the same time that all prosecutions against citizens of the United States for the infringement thereof must be conducted in the consular courts of the United States as provided by treaty.

The Japanese government has from time to time proposed hunting (8) regulations, and also fishing (9) regulations.

By an order in council of the 25th of October, 1881, the ministers of Her Britannic Majesty in China and Japan are authorized from time to time to make, subject to the provisions of the order, such regulations

(2) 4 Pap. Rel. Tr. W. 50. (3) 1 Op. At.-Gen. 87. (4) S. E. Doc. 25, 3d Sess. 41st Cong.; see also S. E. Doc. 20, 3d Sess. 40th Cong. (5) S. E. Doc. 25, 3d Sess. 41st Cong. (6) 2 F. R. 1875, 777, 782. (7) Ib. 799. (8) 2 F.R. 1875, 774. (9) Ib. 820, 829.