$2,500; where it exceeds $2,500, an appeal lies to the United States circuit court in California. Where the matter in dispute exceeds $2,500, a similar appeal is allowed from any final judgment of the minister to China or Japan, given in the exercise of original jurisdiction." One Holcomb, a citizen of the United States, was charged with the arbitrary punishment, by cruel and inhuman tortures, without any legal proceedings, of a boy in the island of Guap, a barbarous or semicivilized country with which the United States had no treaty and where there was no American consular representative. It was advised that the case came within section 4088, Revised Statutes, and that, as there was no regular representative there, the United States might send out a special commercial agent for the purpose of trying the accused. Garland, At. Gen., July 6, 1885, 18 Op. 219. "It seems to be well understood that a consul can not take jurisdiction of general consular business beyond the limits of his district (par. 30, Consular Regulations), and it is apprehended that the same rule applies to the exercise of judicial functions in the present state of the law." Mr. Olney, Sec. of State, to Mr. Denby, min. to China, Feb. 2, 1897, For. To the same effect is Mr. Bayard, Sec. of State, to Mr. Denby, min. to "If cases arise in which it may appear that the power to punish for a violation already accomplished is concurrent, residing as well in your consular court as in the tribunals of this country, you must be governed by your judgment of the exigencies of the case, and the probability that justice may be evaded if not administered in the somewhat unsatisfactory manner which is necessarily incidental to such exceptional modes of adjudication as are authorized in China and other partially civilized countries. The rule should be, as we incline to interpret it, rather to decline jurisdiction, except where it is necessary to prevent a failure of justice." Mr. F. W. Seward, Assist. Sec. of State, to Mr. Wingate, consul at This instruction, which was written in reply to Mr. Wingate's No. 36 of that his judicial authority was derived from the treaty with China and the act of June 22, 1860, and that "neither" of them clothed him "with any jurisdiction for the trial of crimes committed upon the high seas." The jurisdiction given to the courts of the United States over offenses committed on the high seas does not exclude a consular court from trying the same offense committed in a port of the country in which such consular court is established. In re Ross (1891), 140 U. S. 453. (2) POWER TO MAKE REGULATIONS. § 263. It was advised by Mr. Cushing that the power to make "decrees and regulations" enabled the minister in certain respects to legislate for citizens of the United States, and served "to provide for many cases of criminality, which neither Federal statutes nor the common law would cover." Opinion of Sept. 19, 1855, 7 Op. 495, 504. "Referring to Mr. Williams' despatch No. 25 of the 22d of August, 1868, enclosing copies of a regulation made and published by him, with the assent, nearly unanimous, of our consuls in China, for the purpose of giving effect to the prohibition by the Chinese Government of the use of the Straw Shoe Channel' to steamers navigating the Yangtze River, I have to state that: This regulation, as a notification to citizens of the United States of the consequences of disregarding an order of the Chinese Government, made in the exercise of the police of its internal waters, is reasonable and necessary for the security of navigation and is approved. "The 4th section of the act of June 22d, 1860, (12 Stat. 73,) to which you refer, has for its principal object, to enable our chief diplomatic representative to establish such process, pleadings and practice in the consular courts, as may be necessary to give effect to the treaties and to the laws of the United States, including the common law, equity and admiralty. The succeeding section appears to be intended as an enumeration of the subjects to which the power granted by the 4th section is applicable. It is certainly judicious to avoid, as I understand Mr. Williams has avoided, the assertion of a power in the minister to make that unlawful which was not forbidden by the laws of the United States or of China. Such a power is legislative, while the act cited purports by its title and the general tenor of its provisions to confer only judicial power." Mr. Seward, Sec. of State, to Mr. Browne, min. to China, Feb. 6, 1869, By dispatches of September 19 and October 19, 1870, Mr. De Long, minister to Japan, transmitted to the Department of State regulations which he had promulgated, with the assent of the consuls, for the United States consular courts in Japan." Mr. Fish, who was then Secretary of State, in acknowledging the receipt of the dispatches, stated that he should submit the regulations to Congress without assuming for himself the power or the duty of disapproving or amending them; but, while he considered that nearly all the regulations were clearly within the power of the minister to make and to carry into effect, till Congress should indicate its pleasure to the contrary, he said that he considered it his duty to call the attention of Congress to certain provisions which he thought transcended the authority delegated to the minister, or that delegated to the Secretary of State, in the case of countries to which no minister was accredited. In this relation Mr. Fish entered into a full discussion of the minister's power to make decrees and regulations, under sections 5 and 6 of the act of June 22, 1860. He described it as being "confined to the course of procedure in pursuing judicial remedies, and as not extending to the creation of new rights or duties in citizens of the United States, or to the modification of personal rights and obligations under the existing law;" and, with regard to the diversities in the "common law" arising from the complex Federal system in the United States, he expressed the opinion that "it would be most discreet to allow the anomalous jurisdiction of our consular courts . . . to find its limits and definition from the practical exigencies of administration and the acquiescence of the government within whose territory the jurisdiction is exercised." Continuing, Mr. Fish said: "A report made to Congress by my predecessor, Mr. Seward (a copy of which is inclosed), shows that it has been the habit of this Department to regard the judicial power of our consular officers in Japan as resting upon the assent of the Government of that Kingdom, whether expressed by formal convention or by tacit acquiescence in the notorious practice of the consular courts. In other words, they were esteemed somewhat in the same light as they would have been if they were constituted by the Mikado with American citizens as judges, and with all the authority with which a Japanese tribunal is invested in respect to the native subjects of Japan, to the extent that our Government will admit a jurisdiction understood to be extremely arbitrary. They were, so to speak, the agents of a despotism, only restrained by such safeguards as our own Government may interpose for the protection of citizens who come within its sway. a See S. Mis. Doc. 89, 47 Cong. 1 sess. 134–178. Between this view and that which would regard our consular courts as possessing only that authority which has been conferred upon them in express terms by Congress there is a wide margin. Congress, informed by Mr. Seward's report before mentioned of the general views which had obtained in this Department, has not indicated its dissent or concurrence, except by silence. It is possible that some future appeal under the fifth and sixth sections of the act of July 1, 1870, may lead to a judicial determination of the extent of consular jurisdiction. The communication of your regulations may have the effect of bringing the whole subject to the consideration of Congress, and produce a clear expression of its views." The particular provisions or regulations to which Mr. Fish took exception were: (1) A requirement that all citizens of the United States be enrolled, on penalty of a fine and forfeiture of the right to protection. (2) A provision for the attachment of the property of nonresidents. (3) A regulation establishing certain grounds for divorce. (4) A definition of the cases in which vessels should be subject to liens. (5) A rule allowing the testimony of absent persons to be taken and used in criminal cases. (6) A definition of the degrees of murder, a provision for the perpetual banishment of persons guilty of felony, and a reference to the "common law" for the definition of felonies and misdemeanors. Mr. Fish, Sec. of State, to Mr. De Long, min. to Japan, Dec. 20, 1870, MS. In connection with the reference to the "common law," Mr. Fish in- Mr. Fish enclosed, as containing Mr. Seward's report, Jan. 2, 1869, S. Ex. Views, similar to those above expressed by him, as to the limitation of criticised by Mr. Fish, as herein set forth, see letter of Mr. Frelinghuysen, Sec. of State, to Mr. Windom, chm. Com, on For. Rel., April 29, 1882, S. Mis. Doc. 89, 47 Cong. 1 sess. 134-178, where they are given as the " regulations in force in the consular courts of the United States in Japan." It therefore appears that the regulations were not disallowed by Congress. In the same document may be found translations of the French edict of June, 1778, and the laws of May 28, 1836, and July 8, 1852; the British statute of 6 and 7 Vict. c. 94, and the orders in council of Nov. 30, 1864, and Oct. 25, 1881; the regulations in force in the United States consular courts in China; the land municipal regulations in Shanghai; the provisions of United States treaties relating to extraterritoriality; the draft of an act concerning the exercise of foreign jurisdiction, amendatory of R. S. §§ 4082-4130. "I have to acknowledge the receipt of your dispatch No. 324, of the 3d ultimo, in which you present some interesting and important questions as to the obligatory character of Rule XV. of the (Chinese) Consular Court Regulations of 1864. That rule is as follows: "Civil actions, based on written promise, contract, or instrument, must be commenced within six years after the cause of action accrues; others, within two.' "As you correctly state, there are no general statutes of limitations adopted by Congress as affecting all civil proceedings in Federal courts. But it must be remembered that, by section 721 of the Revised Statutes, Federal courts sitting in a particular State must adopt the limitations in force in such State, and in this way any gap in Federal legislation in this respect is filled up. But as the Revised Statutes contain no provision as to limitations in civil suits which applies to our consular courts, we have, in such courts, either to fall back in each case on the general principles of private international law or to adopt in advance, as was done by Mr. Burlingame, a general rule of limitation. "If we revert to the general principles of private international law, the following distinctions are to be observed: "As to mode of solemnization of contracts, the rule is, locus regit actum; "As to personal capacity, lex domicilii controls; "As to interpretation, lex loci contractus; "As to process, lex fori; "As to mode of performance, lex loci solutionis, or the law of the place of performance. "In Scudder v. Bank (91 U. S. 406), while these distinctions were in the main adopted, it was held that statutes of limitation, being matters of process, are governed by the lex fori. If we assume, in the present case, that there are no limitations by the lex fori, then assuming, also, that limitations of suit are part of the essence of a claim, we would revert, if the question be as to the time of payment, to the lex loci solutionis, or the law of the place of performance. "But however important these distinctions may be in those of our foreign consular courts in which the question comes up de novo, they are of but subordinate interest in China, under the view I take of Rule XV. of the Consular Court Regulations of 1864. I do not, it is true, regard this rule as a statute. Not only had Mr. Burlingame no power to enact a statute, as such, but the language of the rule shows that it cannot be regarded as a statutory enactment. It limits suits on even sealed instruments to six years, and on unwritten engagements, no matter how solemn or how strongly evidenced, to two years. It contains no exception in favor of minors or persons under disability. It must be regarded, therefore, not as a statute covering civil |