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. (6) 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 prison 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. () MS. Dept. of State. F. R., 1875, 537, 562, 573.

(6) Ib. (7) 14 Op. At.-Gen. 522, Williams. (9) 1 F. R. 1873, 139. (19) 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 can

founded 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 (*) 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. 23, 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.

not be sustained unless it is in all respects legal and within the power of the government. Consular courts which have been organized, and as they still exist, in many of the Eastern countries, such as China, Turkey, Siam, and, until recently, Japan,' for the purpose of protecting American citizens from unfair trials and cruel punishments, have, when just punishment has been meted out to guilty American citizens, been subjected to the severest tests as to the legality of their

as may to them "seem fit for the peace, order, and good government of British subjects resident in or resorting to " China and Japan. (3)

In an instruction to Mr. Bingham, minister to Japan, under date of January 20, 1876, Mr. Fish expressed the opinion that citizens of the United States residing in the "foreign quarter" in Nagasaki might be sued by the municipal council in the consular court of the United States for non-observance of municipal ordinances. (4)

The question of criminal jurisdiction of consuls of the United States in Japan over foreigners duly enrolled as seaman on American merchant vessels has been much discussed, and in a recent case was decided by the Department of State, adversely to the opinion sometime formerly expressed, (4) in favor of such jurisdiction. John Ross, a British subject, shipped as a seaman on an American merchant vessel, murdered the second-mate on board the vessel, while in the port of Yokohama, was tried by the consul-general there, convicted, and on the 20th of May, 1880, sentenced to death. His sentence was commuted by the President, and he was removed to the United States to undergo life imprisonment at Albany, N. Y. "The British court at Yokohama claimed jurisdiction by reason of Ross's alleged British citizenship. The position taken by this government and adhered to was that the United States, in virtue of its legislation in extending the laws thereof over its citizens in foreign countries, and over all others, to the extent that the terms of the treaties, respectively, justify or require' (section 4086, Revised Statutes), and under the articles of the treaty with Japan, must consider a foreign seaman duly enrolled on an American merchant vessel as subject to the laws and entitled to the protection of the United States precisely to the same extent that a native-born seaman would be during the period of his service." (5)

No foreign power can rightfully erect any court of judicature within the United States, unless by force of a treaty. (6)

(3) S. Mis. Doc. 89, 1st Sess. 47th Cong. (4) F. R. 1873, 139, Mr. Fish to Mr. Low, Jan. 8, 1873; also 11 Op. At.-Gen. 474, Speed. (5) S. E. Doc. 21, 1st Sess. 47th Cong. (6) Glass vs The Sloop Betsey, 3 Dallas, 6.

§ 451.

to treaty of 1894 (U. S. Treaties in

1 The Consular Courts in Japan Force, 1899, p. 352). were abolished July, 1899, pursuant

existence, and the right of the United States to establish and maintain them.

452. Consular courts sustained by Supreme Court in In re Ross, 1891; Justice Field's opinion.-No severer test as to any rule of law can be imagined than to challenge it in a case involving the life, or even the liberty of an American citizen.

Under our treaties with Japan of 1857 and 1858, consular courts were established which had exclusive jurisdiction to try American citizens for crimes committed in Japan.

After the ratification of the treaties Congress passed laws for the establishment of consular, or treaty, courts in all countries with which the United States had such treaty stipulations, prescribing a regular form of procedure, defining the jurisdiction and power of the Courts, and providing for appeals to the United States Minister; the power included the right to inflict the death penalty on persons convicted of murder.

One Ross, a sailor on an American vessel, having committed a crime in Japan was brought before one of these courts, tried, convicted and sentenced. Habeas corpus proceedings were instituted, and in 1891 the question whether the United States possessed power to establish courts in a foreign land with power to try and condemn a man to death without a jury was submitted to the Supreme Court.1

The jurisdiction of the consular courts was upheld in a decision, very far-reaching as to the extent and scope of the treatymaking power, which was delivered by Mr. Justice Field. It was admitted that in one aspect an American accused of having committed crime in an Oriental country in which these courts are established is deprived of some of the guarantees of the Constitution. This was held to be offset in other respects as he is the gainer by not having his case tried by the local tribunal, the procedure of which is oftentimes hard and oppressive, sometimes even being accompanied with extreme

$452.

1 In re Ross, U. S. Sup. Ct. 1891, 140 U. S. 453, FIELD, J., and see extracts from opinions in note 4 to § 390, p. 140, ante. The statutes

and treaties are referred to at length in the extracts from Davis and Haswell's notes and, therefore, are not repeated.

cruelty and torture. The main point decided was that Congress had the right to establish these consular courts, because the legislation was based on stipulations made by a treaty, and that a sentence pronounced by one of those courts was valid, and could not be attacked on the ground that no trial by jury had been provided. This decision is one of the most far reaching in sustaining the treaty-making power, and the right of Congress to legislate in regard to American citizens, in a manner which would undoubtedly be unconstitutional in the absence of such treaty stipulations.

§ 453. Review of chapter.-When the author first outlined this chapter he intended to make only a brief reference to each of the six subjects referred to, for the purpose of showing to what extent the treaty-making power has been exercised. It was not then, nor has it been at any time, his intention to discuss those subjects in detail, or to collect all the authorities bearing upon them. In completing the chapter many points were naturally brought to his attention to which reference was necessary, many of them have received only a brief mention, many others have been omitted altogether. Each of these subjects could easily supply the matter for a separate volume, and the reader must understand that this chapter is essentially a series of summaries, the subjects being referred to, so far as the purpose of this book is concerned, only as they exhibit the extent of the treatymaking power of the United States.

454. No treaty ever declared unconstitutional.-The fact which necessarily impresses itself most forcibly on the mind of any one examining the cases cited in the preceding sections of this chapter is that no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconstitutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of congressional legislation, and in some instances of Federal jurisdiction. The people of the United States, as represented in Congress and by the Judiciary, have acquiesced in the exercise of this power, and so far as all questions that have as yet arisen, or which are likely to arise in the near future, the treaty-mak