d'affaires. The case became the subject of an informal consultation between Sir John and Mr. Denby, the American minister at Peking. They agreed that, had the case arisen between England and the United States, it was settled that the consuls of the two countries would be considered as having jurisdiction of persons duly shipped and enrolled on the merchant vessels of their respective nations; but that, in the case of other countries, between which no such agreement existed, an actual legal basis for the claim of British jurisdiction in the pending case might not be found to exist. It seems that the British minister's law officers afterwards advised him that the extraterritorial jurisdiction allowed by China to foreign powers did not extend to the flag but must be determined by the nationality of the defendant, in all cases where the crime was alleged to have been committed while the ship was in Chinese waters. As there was no convention, tacit or otherwise, between Spain and England on the subject, Sir John surrendered the accused to the Spanish consul for trial.

Mr. Denby, Min. to China, to Mr. Blaine, Sec. of State, No. 997, Nov. 8, 1889, 86 MS. Desp. from China.

Mr. Denby, in concluding his report of the case, said: "I simply report this case without legal comment thereon. Should such a question arise between the United States and any power but Great Britain, I would immediately request specific instructions as to how I should act." (Ibid.)

"A seaman of the Navy who is convicted in a consular court of a felonious offense (as distinguished from cases of overstaying leave, disorderly conduct, drunkenness, and other comparatively minor offenses of which, under the navy regulation of November 2, 1875. the naval and consular authorities have concurrent jurisdiction) ceases from the date of such conviction to be in the naval service of the United States, and should be dealt with thenceforth as a private individual. Therefore, consular officers should promptly notify the commanding officer of the vessel on which the man served, or the commander in charge of the squadron, when any such conviction occurs, and he in turn will communicate to the consular officer the action subsequently taken by him under orders of the Navy Department."

United States Consular Regulations, 1896, sec. 630, p. 268.

See circular of Mr. Rives, Assist. Sec. of State, to U. S. consular officers, Aug. 25, 1888, For. Rel. 1888, II, 1665. This circular amended that of Mr. Porter, Assist. Sec. of State, to U. S. consular officers in extraterritorial countries, Aug. 19, 1887, in which it was stated that seamen of the Navy, convicted of "offences subjecting them to imprisonment," ceased to be in the naval service. The Navy Department considered that this phrase, by reason of its generality, contravened the regulation of Nov. 2, 1875, providing for the concurrent jurisdiction

of the naval and consular authorities as to minor naval offences. (See Mr. Bayard, Sec. of State, to Sec. of Navy, July 12 and Aug. 25, 1888, 169 MS. Dom. Let. 146, 479, and Sec. of Navy to Sec. of State, Aug. 8, 1887, MS. Misc. Let.)

An ordinance was passed in 1896 by the municipal council at Apia with regard to the arrest and imprisonment of men-of-war's men. The purport of the proposed ordinance was to place the offending sailor in the custody of the commander of his ship, who should punish all minor infractions of the municipal regulations as he should see fit. The consuls, Sept. 19, 1896, decided to refer the subject to the powers, and meanwhile unanimously requested "that in case of an arrest of a man-of-war's man the president of the municipal council will at once notify the captain of the man-of-war concerned, and inform him that if he sends the necessary guard the prisoner will be handed over."

It seems that the difficulty began with the arrest of two German seamen from a man-of-war on a charge of being drunk and disorderly and damaging property. They were subsequently released by direction of the German consul, who "assumed all responsibility." It seems that in two cases in the preceding seven years the municipal police had arrested sailors from British men-of-war, and that the men were tried, fined, or acquitted by the municipal magistrate. Mr. Olney considered the existing ordinance sufficient and opposed the new ordinance, declaring that he could see no good reason why an offending man-of-war's man should not be tried and punished by the duly constituted municipal magistrate for a breach of the peace, unless a treaty should provide otherwise.

Mr. Olney, Sec. of State, to Sir J. Pauncefote, Brit. amb., Jan. 16, 1897, MS. Notes to Gr. Br. XXIII. 533. See also For. Rel. 1897, 452-453, 456-459.

The British Government, however, was inclined to concur with the German Government in the matter, and Lord Salisbury suggested that the consuls of the three powers should consult with the new chief justice of Samoa on the subject, with a view to "settle the question in such manner as to avoid disputes, while at the same time securing the maintenance of order and the proper punishment of offenders." The United States accepted this suggestion, declaring that it would cheerfully assent to any conclusion that may be reached after such conference." (Mr. Sherman, Sec. of State, to Sir J. Pauncefote, Brit. amb., April 3, 1897, For. Rel. 1897, 460.)

4. EXERCISE OF JUDICIAL FUNCTIONS.

(1) LEGISLATION OF UNITED STATES.

§ 262.

The first statute of the United States, by which the judicial functions of ministers and consuls of the United States were regulated and defined, was approved August 11, 1848." A new and more comprehensive act was approved June 22, 1860. Mr. Cass, as Secretary of State, May 16, 1860, addresses a letter to J. M. Mason, chairman of the Committee on Foreign Relations of the Senate, enclosing a draft of a bill to amend the act of August 11, 1848, to carry into effect the provisions of the treaties of the United States with China. and the Ottoman Porte, giving certain judicial powers to United States ministers and consuls. "The act of Congress of 1848 . . . is," says Mr. Cass," a most important and valuable one. A careful study of every one of its provisions has impressed me with a renewed sense of the sagacity and wisdom of the distinguished statesman, Judge Butler, who is reputed to have been its framer." The enclosed bill had been submitted to the Solicitor of the Treasury, and advantage had been taken of the views presented in the opinion of the late Attorney-General, Mr. Cushing, concerning the judicial powers of the United States ministers and consuls in China and Turkey.c There are amendatory acts of July 28, 1866; July 1, 1870; March 23, 1874; and Feb. 1, 1876.9 These enactments are consolidated in the Revised Statutes of the United States, SS 4083-4130.

The statutes apply to China, Japan, Siam, Egypt, Madagascar, Turkey, Persia, Tripoli, Tunis, Morocco, Muscat, and the Samoan Islands," and to any other country with which an appropriate treaty may be made. They also authorize consuls and commercial agents at islands or in countries not inhabited by any civilized people, or recognized by any treaty with the United States, to hear and determine civil cases where the debt or damages do not exceed $1,000, exclusive of costs, and to try and punish offenders where the fine does not exceed $100 or the imprisonment sixty days.

a 9 Stat. 276.

b 12 Stat. 72.

c Sen. Ex. Doc. 43, 36 Cong., 1 sess.

d 14 Stat. 322.

e 16 Stat. 183.

f 18 Stat. 23.

9 19 Stat. 2.

h R. S. §§ 4083-4130; act of June 14, 1878, 20 Stat. 131.

R. S. § 4129; act of June 14, 1878, 20 Stat. 131; Inst. to Dip. Officers (1897), 82-83.

R. S. § 4088.

a

By the general provisions of the statutes above mentioned the ministers and consuls are invested, so far as the treaties allow, with "judicial authority." This authority extends in criminal matters to the trial and punishment of offenses committed by citizens of the United States: and in civil matters to "all controversies between citizens of the United States, or others," so far as the treaties provide. The word "minister" means "the person invested with, and exercising the principal diplomatic functions; " the word "consul" means "any person invested by the United States with, and exercising, the functions of consul-general, vice-consul-general, consul, or vice-consul." Where there is no "minister" in either of the countries mentioned, the judicial duties imposed on that official "devolve upon the Secretary of State." The jurisdiction of ministers in civil matters and also in criminal matters, except in capital cases for murder, or insurrection, or for offenses amounting to felony, is appellate only, unless the cousular officer is interested either as party or as witness.e

Jurisdiction, both civil and criminal, is exercised in conformity (1) with the laws of the United States, and, if they be unsuitable or deficient, (2) with "the common law, and the law of equity and admiralty," and if all these do not furnish" appropriate and sufficient remedies," (3) with "decrees and regulations," having "the force of law," which the "ministers" may make to "supply such defects and deficiencies." The ministers in making decrees and regulations are required to take the advice of such consuls in their respective countries as may be consulted without prejudicial delay or inconvenience. The consuls thus consulted are required to signify their assent or dissent in writing. The minister may then cause the decree or regulation to be published, together with the opinions of his advisers; if he does so, the decree or regulation becomes obligatory till it is annulled or modified by Congress; and he is required, as speedily as may be after publication, to transmit the papers to the Secretary of State "to be laid before Congress for revision." g

The consul sitting alone may decide all cases where the fine

a R. S. § 4083.

R. S. § 4084, 4085.

c R. S. § 4130. In the revision of 1873-4 the words vice-consul-general were omitted, but they were restored in the second edition, of 1878. (Mr. Fish, Sec. of State, to Mr. Seward, min. to China, Jan. 19, 1876, MS. Inst. China, II. 263.) See, also, Consular Instructions of 1855, § 275, and Cushing, At. Gen., 7 Op. 511.

d R. S. § 4128.

e R. S. & 4109.

f R. S. § 4086; Cushing, At. Gen., 7 Op. 503.

9 R. S. §§ 4117-4119.

a

imposed does not exceed $500, or the term of imprisonment 90 days; " he is required so to decide where the fine imposed does not exceed $100 or the imprisonment 60 days. But, if legal perplexities are likely to arise, or if the punishments are likely to exceed those above specified, he must summon from one to four, and in capital cases not less than four, citizens of the United States to sit as associates in the trial.c If any of the associates differs from the consul the case is remitted to the minister. "Capital cases for murder or insurrection against the government, . . or for offenses against the public peace amounting to felony," may be tried by the minister; if tried by a consul, there can be no conviction unless the consul and his associates all concur in it and the minister approves. The minister may also issue writs to "prevent the citizens of the United States from enlisting in the military or naval service. . . to make war upon any foreign power with whom the United States are at peace, or in the service of one portion of the people against any other portion of the same people; and he may carry out this power by a resort to such force belonging to the United States, as may at the time be within his reach." e

In civil cases the consul sitting alone may render judgment where the damages demanded do not exceed $500. When the damages exceed that amount, or the case involves legal perplexities, he must summon two or three citizens of the United States, "if such are residing at the port," to sit with him as associates in the trial."

In criminal cases an appeal lies to the minister (1) where the consul sits with associates and one of them differs from him, and (2) where the consul sitting alone imposes a fine of more than $100 or imprisonment of more than 60 days. From the sentences of the minister to China or Japan, whether original or appellate, an appeal lies to the United States circuit court in California."

In civil cases an appeal lies to the minister where one of the associates differs from the consul. In China and Japan an appeal lies to the minister where the matter in dispute exceeds $500 but not

a R. S. § 4089.

bR. S. § 4105.

c R. S. § 4106. Though this section refers only to consuls, it is customary for the minister to summon associates in cases where he has original jurisdiction. (Inst. to Dip. Officers, 89-90, § 221.)

d R. S. § 4106.

e R. S. § 4090.

f R. S. § 4102.

9 R. S. § 4107.

h R. S. §§ 4089, 4091, 4105, 4106.

i R. S. § 4095.

JR. S. § 4108.