appointed to reside, the consular court of the United States at Tangier had no jurisdiction of an offence committed in the United States by a naturalized citizen who afterwards escaped and went to Morocco.

Mr. Adee, Act. Sec. of State, to Mr. Mathews, consul at Tangier, July 8, 1890, 134 MS. Inst. Consuls, 65.

"I have to acknowledge the receipt of your despatch No. 156 of the 26th ultimo, in which you report that on the fourth conviction, in the consular court, of Abraham Amselam, a naturalized citizen of the United States, of the offence of wife beating, you in your capacity of judge of that court, had Amselam flogged.

"Consular court jurisdiction is required by section 4086 of the Revised Statutes and paragraph 610 of the Consular Regulations to be conducted in conformity (1) with the statute law of the United States, where applicable; (2) with the common law, including equity and admiralty law; (3) with prescribed regulations supplementing the statute and common law. These supplemental regulations are prescribed by the minister of the United States, where there is one in the country; and in Morocco, among other powers, the authority to prescribe them is executed, in conformity with the provisions of the treaties and the laws of the United States, by the consul of the United States resident there (Revised Statutes, section 4127). It has always been the custom of the Department to supervise with great care the framing and adoption of these regulations, and your predecessor was instructed on December 9, 1886, to adopt the regulations prepared for the consular court in the Ottoman Empire, and to conduct his consular court proceedings according to law and those regulations. All arbitrary and irregular proceedings were forbidden.

"Wife beating is not, at common law, a distinctive offence; nor is it made such by any statute of the United States, or regulation enforceable in your consular court. By the earlier common-law authorities, the wife was considered so far under her husband's power that he might give her moderate correction "ex causa regiminis et castigationis." but that doctrine is repudiated by all the modern authorities in this country and in England, so that in the present state of the common law beating a wife is assault and battery, in like manner as the beating of any other person would be. There is no United States statute specially providing a punishment for assault and battery on an unofficial person. So we must look to the common law for the punishment of the ordinary offence.

"This punishment is fine, or imprisonment, or both, and the finding of sureties to keep the peace. (4th Blackstone, 217; 1 Russell on Crimes, 1031.) Flogging is prescribed as a punishment in certain countries, and in some of the States of the Union for certain named

offences; but these statutes have no application to offences tried in your court.

66

The offence of Amselam was clearly that of assault and battery, and the proper punishment was fine or imprisonment, or both, in your discretion, and the requirement of a bond with security to keep the peace and be of good behavior towards the community in general, and towards his wife in particular. Surety to keep the peace and be of good behavior is one of the most potent and effective means of restraining violent and lawless men known to the law. If you had put Amselam under a peace bond as soon as it appeared that he needed some constantly operating restraint on his violent impulses towards his wife, it is thought that the third and fourth repetitions of his offense would have been prevented."

Mr. Wharton, Act. Sec. of State, to Mr. Lewis, consul at Tangier, Aug. 9, 1889, 131 MS. Inst. Consuls, 31.

Doubt was expressed as to whether the offense of getting up an expedition with a view simply to exhume a dead body in a foreign country for the purpose of private gain was indictable under any law of the United States. This doubt was expressed with reference to the trial of one Jenkins, before the United States consular court at Shanghai, the prisoner having been acquitted. It was added that the evidence on the trial tended to bring the case within section 6 of the neutrality act of 1819, 3 Stat. 449, under which the accused might perhaps have been more successfully prosecuted.

Mr. Seward, Sec. of State, to Mr. Browne, min. to China, Feb. 5, 1869, MS.
Inst. China, II. 45.

"The obligation of a neutral government to prevent its citizens from joining in hostile movements against a foreign state is limited. by the extent to which such citizens are under its jurisdiction and by the municipal laws applicable to their actions. Hence, a citizen outside of such jurisdiction may not be controlled in his free acts; but what he does is at his own risk and peril. If he offers his services to a combatant, that is a matter of private contract, which it may be equally improper for his own government to forbid or protect; and such service in legitimate war is not contrary to international law.

"In China, however, foreign powers have an extraterritorial jurisdiction conferred by treaty. This jurisdiction is in nowise arbitrary, but is limited by laws, and is not preventive but punitory. If a citizen of the United States in China commit an offense against the peace of China, it is triable in the consular courts. Section 4102 of the Revised Statutes provides that insurrection or rebellion against the Government of either of those countries [. e., the countries named in section 4083, whereof China is one], with intent to subvert the same,

and murder, shall be capital offenses punishable with death,' &c., the consular court and the minister to concur in awarding the penalty. But the simple act of entering into a private contract to serve either combatant in open warfare would not appear to be triable under this section; and, even if it were, this Government would have no rightful power to forbid such service."

Mr. Bayard, Sec. of State, to Mr. Young, min. to China, March 11, 1885,
MS. Inst. China, IV. 9.

Extradition.

With most countries it has been the rule to regard the recovery of their fugitive subjects, charged with ordinary crimes, as an incident of the extraterritorial jurisdiction exercised through their ministers or consuls. The United States, however, has not generally sought to enjoy this privilege, but has, on the other hand, in two cases-those of the Ottoman Empire in 1874 and Japan in 1876-entered into treaties of extradition with the governments of countries in which citizens of the United States were entitled to extraterritoriality. But there are two cases in which American citizens have been brought back to the United States through the enforcement of extraterritorial rights. One of these is that of John H. Surratt, who was charged with complicity in the assassination of President Lincoln, and who was arrested at Alexandria, Egypt, in 1866, and sent to the United States on an American man-of-war by Mr. Hale, then United States consul at that port. His extradition, as Mr. Hale reported, was accepted at Alexandria “as a matter of course." The other case was that of Henry Myers and J. F. Tunstall, two American citizens who were members of the crew of the Confederate steamer Sumter. In February, 1862, while the Sumter lay at Gibraltar, Myers and Tunstall embarked on the French merchant steamer Ville de Malaga for the purpose of proceeding to Cadiz, in order to obtain a supply of coal for the Sumter. The Ville de Malaga having stopped at Tangier, Morocco, they went ashore, where, with the aid of a Moorish military guard, the United States consul arrested them and put them in irons, keeping them in the consulate till the arrival of the U. S. S. Ino, on which he placed them for transportation to the United States. The commander of the Ino afterwards transshipped them to an American merchantman, by which they were taken to Boston, where they were committed into military custody in Fort Warren.

As to the general rule, see Moore on Extradition, I. 100, citing W. B.
Lawrence, 15 Alb. L. J. 230; Billot, Traité de l'Extradition, 6, 7.

For the case of Surratt, see Dip. Cor. 1866, II. 275-277; id. 1867, II. 82.
As to the case of Myers and Tunstall, see Mr. Seward, Sec. of State, to
Mr. McMath, consul at Tangier, April 28, 1862, Dip. Cor. 1862, 873.
See the case of J. D. Buckley, Moore on Extradition, I. 105.

See Mr. Olney, Sec. of State, to Mr. Denby, min. to China, Feb. 2, 1897,
approving a proposed regulation by the latter for the arrest and
transportation for trial of American citizens who, being charged
with crime in one consular district in China, should be found in
another consular district in that country. (For. Rel. 1897, 80, 81-
82.)
See, in this relation, Moore on Extradition, II. 820-824.
In January, 1880, one Cheers, a British subject, who had shipped at New
York as a seaman on the American merchant vessel R. Robinson,
deserted at Yokohama, Japan, and went on board the British man-
of-war Hornet, where, on representing himself as a deserter from
the British navy, he was held a prisoner. Subsequently the United
States consul-general issued a warrant for his arrest on the charge
of desertion from the R. Robinson and applied to the British consul
to procure his surrender. The British consul refused to comply with
the request on the ground that Cheers had been placed under arrest
in accordance with naval instructions, the commander of the Hornet
stating that he had been dealt with in accordance with the naval
discipline act. The case was directed to be brought to the attention
of the British Government. (Mr. Evarts, Sec. of State, to Mr.
Hoppin, chargé at London, April 19, 1880, MS. Inst. Great Britain,
XXV. 618.)

In the absence of any specific appropriation for the object, the expense of transferring prisoners, held by the authorities of the United States in China, from Amoy to Hongkong for trial on a charge of piracy, is a lawful charge upon the judiciary fund, so called, being the fund appropriated for defraying "the expenses of prosecutions for offenses committed against the United States, and for the safe-keeping of prisoners."

Cushing, At. Gen., 1853, 6 Op. 59.

It was advised under the act of August 11, 1848, entitled "An act to carry into effect certain provisions in the treaties Imprisonment. between the United States and China, and the Ottoman Porte, giving certain judicial powers to ministers and consuls of the United States in those countries," that as Congress had not designated any particular place for the confinement of persons who should be arrested on charges of crime, it was left to be regulated under the 5th section of the act, or in the absence of any such regulation, to the discretion of the acting functionary.

Toucey, At. Gen., Jan. 31, 1849, 5 Op. 67.

A sentence of imprisonment imposed in any of the regular [consular] courts of China may be served out in any portion of China, and not necessarily within the limits of the consul's ordinary jurisdiction.

Miller, At. Gen., 1892, 20 Op. 391; cited in Mr. Olney. Sec. of State, to
Mr. Denby, min. to China, Feb. 2, 1897, For. Rel. 1897, 80, 81.

Capt. L. de R. du Vergé, an American citizen, was convicted in the United States consular court at Tamatave, Madagascar, of the manslaughter of Victor F. Stanwood, United States consular agent at Andakobe, in the same island. Du Vergé was sentenced to pay a fine and to undergo ten years' imprisonment; and, as there was no American jail in Madagascar, the consul at Tamatave suggested that he be sent to the United States. August 3, 1889, the Department of State submitted the question to the Attorney-General. In so doing, the Department referred to the case of Mirzan, who, after conviction of murder at Alexandria, Egypt, before Mr. Maynard, United States minister to Turkey, was brought to the United States and imprisoned at Albany; and to the case of Dinkelle, who, after conviction of murder by the United States minister in Japan, was also brought to Albany, and was afterwards transferred to an asylum where insane United States prisoners were treated.

Mr. Chapman, Acting Attorney-General, citing with approval the opinion of Attorney-General Williams, of February 4, 1875, 14 Op. 522, advised that, as there was no statute which authorized the imprisonment in the United States of a person convicted by a consular court, the removal of Du Vergé to the United States for that purpose would be unlawful. With reference to the case of Mirzan, who was convicted at Alexandria, June 12, 1880, and was sentenced to be hanged on the 1st of the following October, Mr. Chapman observed that the President, July 29, 1880, pardoned the convict on condition that he be imprisoned for life in the United States consular prison at Smyrna, or in such other prison or prisons in Turkey or the United States as the President might at any time direct. As to the case of Dinkelle, he observed that the President, August 6, 1880, pardoned the convict on condition that he be imprisoned for life in the Albany penitentiary. It had been held that the President might grant a conditional pardon, and that the acceptance of the condition by the convict bound the latter.

Chapman, Acting Atty. Gen., Aug. 14, 1889, 19 Op. 377.

On the validity of a conditional pardon, Mr. Chapman cited 18 How. 307.
For the letter of the Department of State to the Attorney-General, of
August 3, 1889, see 174 MS. Dom. Let. 64.

For a request for permission to confine an American consular prisoner at Tamatave in the French jail, see Mr. Gresham, Sec. of State, to Mr. Patenotre, French amb., Feb. 21, 1895, MS. Notes to France, X. 369. June 10, 1890, the Secretary of State wrote to the AttorneyGeneral that the consul at Tamatave considered the further impris onment at that place of Du Vergé to be inexpedient; that it was impossible properly to guard and imprison him there, and that the Hoova government objected to his remaining. The Secretary of State therefore asked for an opinion as to whether Du Vergé could