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 (6) to Persia, to Tripoli, Tunis, Morocco, and Muscat; (7) to Egypt (*) 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.

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 impris onment 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 Stitutes. (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.