limitations in all their bearings, but as an assertion that suits in consular courts in China are to be limited as to time, the limitation to be adapted to the social and business conditions of the period of suit. In this way we can explain not only the limitation of two years for unwritten engagements, which in the then immature and unsettled condition of our business in China may have been eminently proper, but the omission of the exceptions I have noticed above.

"I hold, therefore, that Rule XV. of the Regulations of 1864, while not to be regarded as having the authority or the fixedness of a statute, is to be viewed as a rule of court expressing a principle open to modification by the court that issued it. It stands in the same position as do the equity rules adopted by the Supreme Court of the United States and courts of the several States, not as a statutory mandate, to remain in force until expressly repealed or modified, but as a principle and regulation of practice which it is open to the court to expand or vary as the purposes of justice may require.

"As to the importance of your adopting such a rule there can be no question. Were there no such limitation required in China, American merchants in China might be harrassed by old debts and stale demands outlawed in the United States, and their business much impeded. Aside from this the principle that the right of suit should be limited as to time, is as essential to public justice as is the principle that the right of suit should exist at all."

Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Apr. 27, 1887,
MS. Inst. China, IV. 263.

By art. 21 of the treaty with China of 1844, and §§ 4083, 4086, 4087. 4111, and 4117 of the Revised Statutes of the United States, "the right to try and punish all citizens of the United States for crimes committed in China is clearly given by treaty to our ministers and consuls. Our statute passed to carry the treaty provisions into effect prescribes how the jurisdiction conferred by the treaty shall be exercised. It is to be exercised in conformity with (1) the laws of the United States and (2) the common law.

"It being seen that deficiencies might be found to exist in the laws of the United States and in the common law, it was wisely provided (3) that if these laws do not furnish appropriate and sufficient remedies, the ministers shall, by decrees and regulations having the force of law, supply such defects and deficiencies.

The power of the minister to make such decrees and regulations is limited to furnishing sufficient and appropriate remedies.""

Mr. Olney, Sec. of State, to Mr. Denby, min. to China, Feb. 2, 1897,
For. Rel, 1897, 80, 81-82, MS. Inst. China, V. 415.

In this instruction Mr. Olney expressed approval, as falling within the
power of the minister, of a proposed regulation providing that, where
a criminal action was pending in any consular district in China

against an American citizen who might be found in another such district, the consul before whom the action was pending might issue a warrant for the arrest of the accused anywhere in China, such warrant to be viséed by the consul of the district in which the accused was found, and the accused then to be arrested and transported for trial to the consular district in which the prosecution was pending.

See Moore on Extradition, II. 820–824.

The consul-general of the United States at Apia having proposed to issue a regulation touching mortgages and bills of sale of chattels, it was held that consular officers were not empowered to promulgate such regulations. It was observed that by section 4128, R. S., in countries where there is no minister, the judicial duties imposed by law upon ministers devolve upon the Secretary of State, and that, as the authority to make regulations was held to be a judicial one, it was believed that the Secretary of State was the proper officer to exercise it where there is no minister.

Mr. Rockhill, Assist. Sec. of State, to Mr. Churchill, consul-general at
Apia, Oct. 9, 1896, 154 MS. Inst. Consuls, 119.

This instruction referred to a previous one, No. 41, of Aug. 15, 1895, in
which it was held that the consul-general of the United States at
Apia had no power to promulgate a regulation concerning the impor-
tation and sale of firearms and ammunition in Samoa. (149 MS.
Inst. Consuls, 266.)

(3) CONDUCT OF PROCEEDINGS.
§ 264.

Replying to the inquiry whether an acting consul can perform judicial functions in China, the Department of State said:

Official competency. "There is no such office known to our law as an acting consul and there is, of course, no authority whatever for the exercise by such person of any consular position as pointed out in your dispatch. Section 4130 of the Revised Statutes expressly limits the exercise of judicial functions conferred upon consuls by section 4083 to persons invested with, and exercising the functions of consul-general, vice-consulgeneral, consul, or vice-consul.'

"As bearing directly upon this matter, I would call your attention to the opinion of the Attorney-General, rendered under date of May 7, 1891, in response to the following query of this Department:

"Can a person placed in charge of a consular office by the incumbent of the consulate, but without appointment and qualification as prescribed by the Constitution and laws of the United States, perform (1) the regular official duties of the post and (2) notarial and other unofficial services?

“‘I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person can not possibly have any virtue in him as a public officer.'

"As to the second question the Attorney-General held that the value of such services depends entirely on the fact that the person rendering them is a consular officer, that the United States would seem to be in duty bound to protect the public, so far as it may be reasonably expected to do so, against the exercise of even merely voluntary consular functions by persons not regularly appointed consuls, and that it therefore clearly concerns the United States that no person shall be permitted to exercise the office of consul of the United States in any way who has not been authorized by Congress to do so."

Mr. Adee, Acting Sec. of State, to Mr. Denby, chargé d'affaires ad int. at
Peking, March 22, 1894, For. Rel. 1894, 140, replying to dispatch No.
1802, Jan. 31, 1894, of Mr. Denby, min. to China, For. Rel. 1894, 139.
See, to the same effect, Mr. Marcy, Sec. of State, to Mr. C. W.
Bradley, jr., Amoy, Nov. 13, 1854, 19 MS. Desp. to Consuls, 422.
In 1875 the master of an American ship, who had in an affray shot a
Chinese coolie, at Kulung, compromised the matter by paying the
friends of the Chinaman, with the consent of or without objection
from the United States consular agent there, a pecuniary compensa-
tion. Mr. Henderson, United States consul at Amoy, when the con-
sular agent reported the matter to him, doubted the propriety of such
a compromise in case of crime, and suggested that, if another such
case should occur, it should be reported to himself, in order that
the offender might be arrested and tried. To this suggestion objec-
tion was made, it being claimed that the consular agent was himself
a judicial officer, and as such competent to deal with the case. This
claim was disapproved by Mr. G. F. Seward, then minister to China,
and Mr. Seward's view was upheld by the Department of State,
which ruled that the judicial power in question could be exercised
only by an officer de jure as well as de facto," i. e., an officer author-
ized by the terms of the law to exercise it. (Mr. Fish, Sec. of State,
to Mr. Seward, min. to China, Jan. 19, 1876, MS. Inst. China, II. 363.)
By the act of June 22, 1860, it was provided that the word consul," in
connection with the exercise of extraterritorial jurisdiction, should
include the "consul-general, vice-consul-general, consul, or vice-
consul." In the Revised Statutes of 1873, § 4130, the words "vice-
consul-general" were omitted. The omission was afterwards cor-
rected by the act of Congress of Feb. 1, 1876. (Mr. Fish, Sec. of
State, to Mr. Seward, min. to China, Feb. 9, 1876, MS. Inst. China,
II. 368.)

66

That, as held by Mr. Fish, supra, judicial functions under Title XLVII. R. S. do not belong to consular agents, see Mr. Evarts, Sec. of State, to Mr. Bingham, min. to Japan, Jan. 3, 1881, MS. Inst. Japan, III. 23. Mr. James W. Allen, who was left in charge of the United States consulate at Zanzibar by the former consul, when he vacated his post,

"had no judicial functions and no authority to sign any instrument as acting judge of the United States consular court.'" (Mr. Uhl, Acting Sec. of State, to Messrs. Warren & Brandeis, April 26, 1894, 196 MS. Dom. Let. 504.)

By § 4109, R. S., where a "consular officer " is "interested, either as party or witness," the minister has original jurisdiction. This does not apply to a charge of crime made against the marshal of the consular court, since a jailer or marshal is not considered a consular officer within the meaning of the statute.

See opinion of Mr. Denby, min. to China, May 18, 1892, approved by the
Department of State, For. Rel. 1892, 113, 123, 124.

See, also, Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Jan. 25,
1888, MS. Inst. China, IV. 341.

Mode of trial.

The guarantees afforded by the Constitution of the United States in respect of indictment by a grand jury and an impartial trial by a petit jury apply only to citizens and others within the United States and do not prohibit procedures of a different kind in consular courts.

In re Ross, 140 U. S. 453, 464 (1891), citing Cook v. United States, 138
U. S. 157, 181. "I deem it expedient that a well-devised measure for
the reorganization of the extraterritorial courts in oriental countries
should replace the present system, which labors under the disad-
vantage of combining judicial and executive functions in the same
office." (President Cleveland, annual message, Dec. 8, 1885.)
It was stated by Mr. Seward in 1864, with reference to the question of
jury trials in China, that the act of August 11, 1848, to carry into
effect the treaty with that country, was drafted either by Governor
Davis, of Massachusetts, or by Judge Butler, of South Carolina.
When, in 1860, it was proposed to amend the law, a draft of the new
measure was prepared wholly in the Department of State. This
draft was submitted by Mr. Cass, who was then Secretary of State,
to Mr. Hilyer, Solicitor of the Treasury. As thus submitted it con-
tained a section providing for trial by jury in China and Japan. Mr.
Hilyer doubted the expediency of this provision, expressing the opin-
ion that trial by jury in China and Japan would constitute a violation
of the treaties with those countries, which required the trial of citi-
zens of the United States charged with crime to be held by the consul
or some other public functionary of the United States. The sugges-
tion of Mr. Hilyer was adopted by the Department of State, and the
bill as thus amended was passed by the Senate. In the House of Rep-
resentatives objection was made by Mr. Phelps to the section in regard
to marriage, and by Mr. Branch, of North Carolina, to the absence of a
provision for jury trials. Both those gentlemen, however, afterwards
withdrew their objections and the bill was passed in the precise form
in which it was adopted by the Senate. (Mr. Seward, Sec. of State,
to Mr. Seward, consul-general at Shanghai, June 11, 1864, 37 MS.
Desp. to consuls, 292.)

The salary of a person appointed marshal of the United States consular court at Shanghai begins from the time of his entering upon such duties as are preliminary to his departure for the field of his services after taking the oath of office and giving the bond prescribed by law.

Employment of marshals.

Bates, At. Gen., 1862, 10 Op. 250.

"With respect to marshals or other officers to execute the decrees of your consular court as well as the other means for performing your judicial functions, the act of July 14, 1890, only makes specific appropriation for marshals in China, Japan and Turkey. But the creation by Congress of judicial authority in foreign countries must include the means of exercising it, or otherwise justice which it is sought to secure would fail; and so in countries where no marshal is provided for by law, it is usual for the consuls in case of necessity to designate some one to act as a special constable or marshal, reporting the expense to the Department, which is allowable out of its contingent funds. In extraordinary cases, also, the course of consuls has been approved in applying to the local authorities to assist them. In some treaties this is secured as a right, and in any case it would probably be granted as a favor."

Mr. Adee, Act. Sec. of State, to Mr. Heard, min. to Corea, Oct. 27, 1890,
MS. Inst. Corea, I. 353.

Subjects of a foreign nation may be appointed as marshals of consular courts, and when so appointed they need not take the oath prescribed by sec. 1756, or sec. 1757, Rev. Stat., but should take an oath similar to the one so prescribed, except as to allegiance.

Knox, At. Gen., Jan. 3, 1902, 23 Op. 608.

Particular subjects.

(4) CIVIL JURISDICTION.

§ 265.

"The probate of wills has been recognized as a proper subject for the cognizance of the consular courts. This view is deducible from the act of the 22d of June, 1860 (12 Statutes at Large, page 72), the substance of which, so far as the present question is involved, you will find embraced in sections 4085 and 4088 of the Revised Statutes.

"The practice is found to be of great service in facilitating the consul in his efforts to preserve the effects of the deceased, and has also the advantage of securing an authentic record of the instrument which is more or less subject to loss in the course of transmission to the home of the testator in the United States. The proceedings of the consul however, are not intended to supersede, nor is it supposed

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