lawfully be removed to the consular prison at Shanghai or Kanagawa. The Attorney-General replied: "I think the opinion of Acting Attorney-General Chapman, rendered to your Department under date of August 14, covers your question. The opinion is to the effect that, in the absence of statutory provision, there is no power in the Executive to change the place of confinement of a prisoner after sentence; and that the statutory provisions of section 5446 do not cover this case. In the meantime, however, I have called this matter to the attention of the Senate Judiciary Committee, and asked that an amendment to section 5546 (sic), giving the AttorneyGeneral power to change the place of imprisonment in such cases, be passed." Mr. Miller, At. Gen., to Sec. of State, June 17, 1890, MSS. Dept. of State. power... to send them [American convicts] to the United States "225. The statutes provide that in case of a conviction entailing the death penalty, it shall be the duty of the minister Clemency. to issue his warrant for the execution of the convict, appointing the time, place, and manner; but if the minister is satisfied that the ends of public justice demand it, he may from time to time postpone such execution. If he finds mitigating circumstances which authorize it, he may submit the case to the President for pardon.-R. S., sec. 4103. "226. As the provision of section 4103 of the Revised Statutes stands, it appears to make the diplomatic representative the sole judge of the propriety of extending Executive clemency to the convict. It was probably not the intent of Congress to bar the exercise of the President's power of pardon at the discretion of a diplomatic representative; and it would be manifestly improper, as well as of doubtful constitutionality, to do so in the possible case of conviction being had before the officer whose duty it is made to execute the sentence. In cases coming under this statutory provision, the Department of State deems it advisable that the diplomatic representative should always regard the ends of public justice as requiring postponement of the execution until the case is reported and copies of the judgment and testimony are transmitted to the Department of State and the President's views in the premises have been received.” Inst. to the Dip. Officers of the United States (1897), 91–92. Mr. Blaine, in a report to the President of Dec. 19, 1881, discusses the subject of consular jurisdiction in countries in the East, and advocates the establishment of courts the officers of which shall not belong to the diplomatic and consular service. He seemed to entertain doubts as to the constitutionality of the procedure under §§ 4083-4130, R. S., but this question is settled by In re Ross, 140 See, as to the question of appeal, Mr. Evarts, Sec. of State, to Mr. A prisoner having been condemned to death by a consular court in Japan, the President commuted his sentence to imprisonment for life, on condition that he undergo the imprisonment in the penitentiary at Albany. The condition was accepted, and the prisoner was brought to the United States, but, while imprisoned at Albany, he sought to be released by habeas corpus. It was held that the commutation, or conditional pardon, was valid, and that there was no question as to the binding force of the prisoner's acceptance of it. In re Ross (1891), 140 U. S. 453, 480. "The fact that you find no power lodged in the consul to remit any part of a sentence, or to pardon in any case, doubtless will, as it should, admonish you of the necessity of wary consideration in admeasuring the punishment to the offence. Whether the 18th section of the act of 1860 is applicable to criminal cases after judgment, or after conviction when judgment is suspended, is so doubtful that no determination of the question will be hazarded until a necessity shall arise." Mr. F. W. Seward, Assist. Sec. of State, to Mr. Wingate, consul at 5. END, OR SUSPENSION, OF PRIVILEGES. (1) CHANGE OF SOVEREIGNTY. May 4, 1896, the Department of State, at the instance of the French ambassador at Washington, instructed the consul of the United States at Tamatave to "suspend until further instructed exercise consular judicial functions in all cases where cooperation of an established French court is available for disposition judicial cases affecting American citizens." Instructions were given by the French Government to the French resident-general in Madagascar to give all facilities to the American consuls for settling the cases brought before their courts before October 16, 1896, when, according to the statement of the French resident-general, the French courts were to be opened for business. Mr. Olney, Sec. of State, to Mr. Eustis, amb. to France, Dec. 10, 1896; Mr. Vignaud, chargé at Paris, to Mr. Olney, Sec. of State, Feb. 18, 1897, inclosing a note from Mr. Hanotaux, min. of for. aff., of Feb. 14, 1897: For. Rel. 1897, 152-154. In 1882 the Department of State expressed the view, with reference to the proposal of France to extend French judicial tribunals and procedure to Tunis, that the assent of Congress would be necessary to enable the United States to renounce its jurisdiction. (Mr. Frelinghuysen, Sec. of State, to Mr. West, Brit. min., Dec. 23, 1882, For. Rel. 1883, 483.) Congress authorized the President to accept the jurisdiction of the mixed tribunals in Egypt, but this change was merely in the nature of an internal reform, to which, so far as it involved treaty rights, the assent of the treaty powers was obviously necessary. By a treaty between the United States and France, signed at Washington, March 15, 1904, the United States renounced for its consuls and citizens in Tunis the stipulations of the treaties between the United States and the Bey of Tunis of August, 1797, and February, 1824, and agreed to claim for them only those rights which belonged to them in virtue of international law or of treaties between the United States and France. For. Rel. 1904, 304. See, further, as to Tunis, infra, § 282. By a convention between the United States and Great Britain of Feb. 25, 1905, the United States agrees to renounce "in the British protectorate of Zanzibar, and in that part of the mainland dominions of His Highness the Sultan of Zanzibar which lies within the protectorate of British East Africa," the extraterritorial rights secured to the United States by the treaty of Sept. 21, 1833, between the United States and the Sultan of Muscat, and by the treaty of July 3, 1886, between the United States and the Sultan of Zanzibar. The British courts are to exercise the relinquished jurisdiction. See, further, as to Muscat and Zanzibar, infra, §§ 864, 895. (2) LEASED TERRITORIES IN CHINA. § 268. After the lease of Kiaochow, Port Arthur, and Weihaiwei, to Germany, Russia, and Great Britain, respectively, the United States consul at Chefoo, within whose district the three ports lay, made inquiry of his Government as to the continuance of his extraterritorial jurisdiction in those places. Germany occupied Kiaochow on November 14, 1897, and obtained from China a lease of land there extending for 100 li at high tide, on the southern and northern sides of Kiaochow Bay, for 99 years, with the privilege of establishing dock yards and fortifications. It was declared that China retained her "sovereignty" over the territory, but it was to be "governed and administered. . . solely by Germany." Port Arthur, with Talienwan, was leased as a naval port by Russia from China in 1898 for a term of 25 years, which might be extended by mutual agreement. The lease was not to prejudice China's "sovereignty," but the control of the territory was to be exercised by one high Russian official. Weihaiwei was leased by Great Britain July 1, 1898, for military purposes so long as Port Arthur should "remain in the occupation of Russia." The lease comprised the island of Liu Kung and all the islands in the Bay of Weihaiwei, and a belt of 10 English miles along its entire coast. Within the leased territory Great Britain was to have "sole jurisdiction." a It appeared that all the members of the diplomatic corps at Peking, except the Japanese minister, took the view that the ports in question, during the lease, passed wholly under the jurisdiction of the three Governments, respectively, and that consuls accredited to China should not attempt to exercise any jurisdiction in them. "The inclosed memorandum . . . will acquaint you with the view here entertained of the general subject... "As a corollary to this view, which from your statement appears to be held by all the powers, with the exception of Japan, the ordinary consular functions prescribed and defined in the intercourse of the Christian powers among themselves could obviously not be exercised within the leased territory by a consul of the United States stationed in neighboring Chinese territory without some express recognition of his official character, by exequatur or otherwise, on the part of the a For. Rel. 1900, 382–385. sovereign into whose control the territory has passed by lease for the time being. This point is not touched upon in your report, and it can only be inferred that the other Western powers will be found to entertain substantially the same view. If you find them to be of a similar opinion, you will, as by direction of the Secretary of State, inform Mr. Goodnow that, upon investigation made and consideration given to the subject, the United States consuls in districts adjacent to the foreign leased territories are to be instructed that they have no authority to exercise extraterritorial consular jurisdiction or to perform ordinary nonjudicial consular acts within the leased territory under their present Chinese exequaturs.” Mr. Hay, Sec. of State, to Mr. Conger, min. to China, Feb. 3, 1900, For. The memorandum above referred to, after citing the provisions in the "By the leases made by the Chinese Government of Weihaiwei, Kiaochow, and Port Arthur, to Great Britain, Germany, and Russia, respectively, the jurisdiction of China over the territories leased is relinquished during the terms of the leases. "In the case of Weihaiwei, leased to Great Britain, it is expressly provided that within the territory leased Great Britain shall have sole jurisdiction.' "In the lease of Kiaochow to Germany, it is provided that China shall have no voice in the government or administration of the leased territory, but that it shall be governed and administered during the whole term of the lease by Germany; that Germany is at liberty to enact any regulation she desires for the government of the territory. Chinese subjects are allowed to live in the territory leased, under the protection of the German authorities, and there carry on their business as long as they conduct themselves as law-abiding citizens. Provision is made for the surrender to the Chinese authorities of fugitive Chinese criminals taking refuge in the leased territory. The Chinese authorities are not at liberty to send agents into the leased territory to make arrests. The lease declares that China retains her sovereignty over this territory.' "In the lease of Port Arthur to Russia it is provided that the control of all military forces, as well as of the civil officials in the territory, shall be vested in one high Russian official; that all Chinese military forces shall be withdrawn; that the Chinese inhabitants may remain or go, as they choose; that if they remain, any Chinese charged with a criminal offense shall be handed over to the nearest Chinese official to be dealt with. (Mr. Conger says that the Russian legation informs him that this last provision is not correctly translated, and that, construing it in connection with article 8 of the treaty of 1860, the Russian Government has the right and does try Chinese for crimes committed against Russians.) This lease is expressly declared on the understanding that it shall not prejudice China's sovereignty over this territory.' 66 As it is expressly stipulated in the leases that China retains sovereignty over the territory leased, it could doubtless be asserted that such |