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IN MEMORY OF HIS FATHER
WILLIAM L. PENFIELD
CLASS OF 1870
1
U.s. Dept estate
Do 1993
SENATE.
MIS. Doc.
No. 89.-
47TH CONGEBESS, }
Per Sti&$ 403-4086
12 junio
rf lisy 29, 185-6, with sim
C Gift
W 15. Pemerintah
1-16.30
THE SECRETARY OF STATE.
,
12
L ETTER
FROM
ADDRESSED TO HON. WM. WINDOM, CHAIRMAN COMMITTEE ON FOREIGN
RELATIONS,
AND OTHER PAPERS,
Relative to the exercise of judicial extraterritorial rights conferred upon
the United States.
MAY 4, 1882.-Referred to the Committee on Foreign Relations and ordered to bo
printed, to accompany bill S. 1828.
DEPARTMENT OF STATE,
Washington, April 29, 1882.
Hon. WILLIAM WINDOM,
Chairman Committee on Foreign Relations, United States Senate :
SIR: In reply to your note of the 28th March last, I have the honor
to lay before you some suggestions respecting amendments to existing
laws regulating the exercise of judicial extraterritorial rights conferred
upon the United States, together with a draft for legislation which it is
supposed may carry out such suggestions. For convenience, I divide
what I have to say into separate subjects, with distinct headings.
1.- WHAT IS EXTRATERRITORIALITY?
I can best show what extraterritoriality is by quoting the language
of the British act (6 & 7 Victoria, Chap. XCIV; see Appeudix IV) con-
ferring power to exercise it. The act says-
That it is and shall be lawful for Her Majesty to holl, exercise, and enjoy any power
or jurisdiction which Her Majesty now bath or inay at any time hereafter have within
any country or place out of Her Majest.y's doininions, in the same and as ample a
manner as if Her Majesty had accquired such power or jurisdiction by the cession or
conquest of territory.
The national sovereignty and law is transferred bodily into a foreign
soil, and made applicable to citizens or subjects of its own nationality
dwelling there. It regulates their rights as between themselves, and as
between themselves and natives, absolutely. As between them and resi-
dent foreigners of other nationalities, it would regulate their rights ab-
solutely but for the fact that the different settlements of the Christian,
nationalities generally live together, and make mutual concessions to
each other, sometimes by custom, and sometimes by written agreements.
2
JUDICIAL EXTRATERRITORIAL RIGHTS.
ng
2. ITS NECESSITY.
As part of the public law of Europe, it took its rise in the conflict be-
tween Islamism and the principles of the Roman law. After the Greek
Empire fell, its commerce with the West remained. The Christian traders
of foreign nationalities claimed and obtained the right to be exempt
from the rules of the Koran, and to be governed by their own laws de-
rived from Rome. How far removed the Koran was and is from our
own principles for the administration of justice may be gathered from
the following extracts from a recent dispatch from our minister at Cons
stantinople:
The rule ofi'tlie: “sacred law" making Christians incompetent as witnesses against
Turks is one of the marvels of Mussulman jurisprudence. Hearing that such a rnle
actually existed I had Mr. look up the volume containing the law upon the sub-
ject, and he has it now in possession. I take the liberty of quoting from it points of
plainest application. * Thus, in the category of the inadmissible (as witnesses), I
find the followiog: Players of backgammon, though chess-players are admissible under
certain conditions ; such as that they do not spend all their time at the game, that
they do not play for money, and that they fail not in their times of prayer on account
of the game. So, wine-drinkers and pork-eaters, because of the probibition in the
Koran; so of those who eat bread in the streets; so of those who atter blasphemies
against Mahomet and his disciples; so of those who make water standing, because
in doing so the urine may spatter upon their legs and they be made nuclean, so that
they cannot go into a mosque for prayers ; so, Jews may testify against Christianis,
and Christians against Jews, and foreiguers against non-Mussulmans; but uuder this
permission is couched the prohibition forbidding any of them testifying against a
Mussulman. So, the testimony of a woman counts for but half; that is to say, two
women are required to make one witness. You will see the full force of these cauong
Suppoje a Christian called to testify against a Turk in a Mussulman court, and his
competency put in question. If he does not play backgammon; if he does not driuk
wine or eat pork; if he does not eat breail in the streets; if he have not uttered blas-
phémy agaiust the prophet or lis disciples; still how shall he swear tbat he never
mikes water standing? Or suppose the case of an outrage upon a Christian woman,
and no witness but herself.
The rights thus obtained from Turkey (originally for the French,
from which fact all Europeans were termed Franks) have been extended
by subsequent "capitulatious” and treaties, and devolve upon citizens of
the United States by a treaty which confers it in words as we under-
stand it. But as the English text is disputed by the Turks it comes to
us also by the favored-nation clause; so that in any event, as the matter
is viewed by the Department of State, there is no reasonable question of
our right of extraterritorial jurisdiction in the Ottoman Dominions over
Americans charged with the commission of crimes.
The same rights have been obtained in Persia, China, Japan, Siam,
and other nations, and for like reasons. The civilization of the Christ-
ian countries of Europe rests upon the equitable principles of Roman
law, which through all changes have permeated and influenced their in-
stitutions. In Turkey these principles were uprooted, and in China,
and Japan, &c., they never took root at all. In a memorandum inclosed
by Mr. George F. Seward in his dispatch No. 505, dated November 18,
1879 (see Foreign Relations, 1880, page 155), it is said:
Thoro can be no doubt that the state of the Chinese judicial establishinent, as it affects
foreigners, is unsatisfactory. No co:le of procedure, worthy to be called sich, exists.
The magistrates, secretaries, and constables are often corrapt. Judgments are secured
only after a great deal of exertion, and persistent efforts have to be made to secure
their executiou.
And again, page 159 :
Scattered through the various reports are allegations that offenders who are sent to
the district magistrate for trial generally appear upon the streets in a day or tiro, and
JUDICIAL EXTRATERRITORIAL RIGHTS.
3
that those who are sentenced by the mixed court magistrate to the bamboo, the
cangue or confinement, frequently evade the punishment to which they have been
sentenced. In civil matters the payment of judgments is generally sought to be en-
for: ed by imprisonment, but judgment debtors are not held if they fallill, and whether
as the result of the very bad sanitary condition of the prison, or of "mild poisons taken
for the purpose,” they often fall ill and escape further difficulty.
I venture to think that the weight of testimony establishes that it is
absolutely necessary that the rights which we enjoy in this respect
should be preserved, and carefully and vigorously enforced.
3.-LEGISLATION TO ENFORCE IT.
ers.
Turkey has "capitulations with France, Great Britain, Holland,
Austria, Russia, Sweden, Denmark, Germany, Spain, Italy (Sardinia),
Belgium, Portugal, Greece, Brazil, and the United States; and China,
Japan, Persia, Siam, &c., have treaties with many or all of these pow-
I have not the means in the Departinent for stating to the com-
mittee the character of all the legislation enacted to exercise the rights
conferred by these capitulations aud treaties. If I had, it would be
manifestly undesirable to weary the committee by stating it. It will
be sufficient to compare the legislation of France, Great Britain, and
the United States with each other. An examination of this compara-
tive legislation will probably be sufficient to satisfy the committee how
far the American in these foreign colonies fails to receive from his gor-
ernment the protection which is accorded to other foreigners.
In estimating this it should also be borne in mind that these colonists,
of different nationalities and living under different laws, generally form
but one community, grouped together in one settlement, or concession,
and frequently combining together, as will be seen hereafter, for muni-
cipal organization and government, but living apart so far as concerns
their persons and their property.
4.-THE FRENCH SYSTEM.
The civil jurisdiction of the French consuls in the Turkish Empire
and the Barbary States is still exercised in conformity with the provis-
ions of the royal edict of June, 1778. I inclose a translation of so much
of this edict as relates to civil jurisdiction. (See Appendix I.)
The fundamental principle in this edict is that French laws, then ex-
isting or that might thereafter be enacted, were to be in force in and to
govern the consular courts. This principle has been followed in the
- American statutes, in the British statutes and orders in council, and in
the Italian laws. In Great Britain, Italy, and France it operates to
extend their whole system of civil and general municipal law over the
consulate and the colonies under their protection. In the case of the
United States the act only extends to Federal legislation. This is,
however, supplemented by extending also the provisions of equity and
admiralty. Even with these provisions inserted, the American colonies
enjoy the protection of a much narrower system of laws than the colo-
nies of France and Great Britain.
The forms of pleading and of procedure are to be adapted to those used
in France, with a proviso that only the most simple and summary ways
are to be adopted. The Sardiniau law goes further than the French in
providing that no nullity for mere matter of forin shall be admitted,
unless it leaves absolute uncertainty as to persons or subject of the
suit.
4
JUDICIAL EXTRATERRITORIAL RIGHTS.
The subjects which are justiciable are all subjects of litigation, what-
ever may be their nature, arising between French merchants, sailors,
and others within the limits of the consulate. Thus it was held in the
appellate court at Aix, the question of competence being raised, that
the management of the estate of a minor was within the jurisdiction of
the tribunal; and the jurisdiction has been sustained by that court,
when questioned, not only on personal matters affecting the execution of
contracts, but on contentions respecting hiring of real estate, the settle-
ment and division of estates, or of partnership, adoption of children,
validity of marriages, easement on real estate, actions for specific per-
formance of agreements to sell real estate, and the validity of seizures.
These examples, selected from adjudicated and reported cases, shoy
how wide is the jurisdiction conferred by France on her consuls.
The persons justiciable in these courts must be French citizens or per-
sons under French protection, residing within the limits of the consu-
late. It is not enough that the person is there temporarily. But this
applies only to the defendants. A person of a different nationality
may sue in a French court, as plaintiff, if the defendaut is justiciable.
This seems to have been many times decided by the courts at Aix.
The court consists of the consul and two assistants, called assessors.
These assessors, originally only counsellors (amici curiæ), have now a rote
in rendering the judgment, but the judgment itself is rendered by the
consul.
The edict makes provision for a "greter," a "huissier," a "notaire,”
and the other usual officers of a French tribunal. · It also provides gen-
erally for the conduct of trials and the entry of judgment and the mode
of enforcing it. These judgments may be enforced anywhere within
French jurisdiction in the same manner as judgments rendered by other
tribunals. It has further been held by the French courts that the same
provision of the edict empowers a consul to enforce, within his terri-
torial jurisdiction, judgments of all French courts.. All these powers
extend to arrest and imprisonment when warranted by French law.
The appeal in all the French consular courts in the Mediterranean is
to the court at Aix, in Provence, which takes the place of the Parliament
of Aix, named in the edict of 1778. Although the edict names no period
within which the appeal shall be taken, it is held by the courts that pro-
ceedings in this respect must follow the rules in the code for appeals
from the courts of the first instance in France. The same rule prevails
as to.costs. The judgment of the appellate court may be again reviewed
by the Cour de Cassation, if under like circumstances an ordinary judg-
ment could be reviewed by it.
Vice-consuls or other inferior consular officers, in the absence of con-
suls, are to act for them, with full powers.
The criminal jurisdiction of French consuls is regulated by the pro-
visions of the act of May 28, 1836. (See Appendix II.) In a circular
from the ministry of foreign affairs of July 15, 1836, it is said:
This law is not confined to filling the gap which existed in our legislation. It re-
produces, with some useful modifications, all the articles of the edict of 1778 which
were capable of being continued. It determines the forms of procedure, and gives to
the accused guiarantees conforwable to the general spirit of onr legislation. It con-
fers upon consuls alone the final judgment of misdemeanors (contraventions), and upon
consnlar tribunals the double duty of performing the functions which appertain in
our courts to “Chambres de conserl," and to sit in judgment nipon every kind of crime
in the first instance. It provides for au appellate tribunal in France for appeals
against judginents rendered in the Levant, in correctional matters and for crimes. In
fine, it indicates the punishment applicable to every kind of crines, whether felonies
or misdemeanors, the mode of review or appeal, as well as the rights and duties of
consuls and the ministry.
i
JUDICIAL EXTRATERRITORIAL RIGHTS.
5
This full official statement of the purposes and character of the law
makes it unnecessary to say more on that point.
The law applies to persons under French protection, as well as to
Frenchmen. The offender must be tried in the consular district in
which the offense was committed. Consequently it was held that an
offender taken in another district must be returned for trial to the con-
sul of the district in which he committed the offense.
As in civil cases, so here, the consul is to be assisted by two laymen
chosen by him from the ó notables” who reside within his district.
These - notables” are to be selected by the consul annually, to serve
for a year.
By the act of July 8, 1852 (see Appendix III), it is provided that dis-
putes in civil and commercial matters arising in China between French-
men shall be adjudicated in consular tribunals according to the provis-
ions of the edict of June, 1778. A court of appeals was established at
Pondicherry to exercise the appellant jurisdiction enjoyed by the court
at Aix as to the consulates in the Levant and the Barbary States. The
provisions of the law of 1836 as to offenses, with some exceptions, were
by the same ac; extended to China.
The same act provided for consular jurisdiction in Muscat, the appel-
late court being in the French colony on the Island of Réunion and the
tribunal of St. Denis.
Subsequent laws have also extended this jurisdiction to the French
citizens in Persia, in Siam, in Japan, &c.
5.-THE BRITISH SYSTEM.
The act of August 24, 1843, 6 & 7 Victoria, Chap. XCIV (see Ap-
pendix IV), provides : 1st. That the power or jurisdiction acquired by
the British sovereign out of British dominions shall be held in the same
and as ample a manner as if the sovereign had acquired such power or
jurisdiction by the cession or conquest of territory; 2d. That acts done
in pursuance of such power in a country or place out of British domin-
ions shall be deemed in all courts and elsewhere in British dominions
as valid as if done according to local law in force in such country or
place. The act also authorized the sending of a person charged in such
country or place with crime to a British colony for trial, and made pro-
vision for the taking of material evideuce by deposition in such case,
and for the use of the depositions on the trial. There are other provis-
ions of this act which it is not necessary to notice.
On the 2d October, 1843, by an order in council, it was ordered that
the British ambassadors, ministers, chargés d'affaires, consuls-general,
consuls, and vice-consuls, resident within the (Ottoman dominious, being
British subjects, should continue to exercise the power and jurisdiction
which they had been in the habit of exercising, until further orders.
On the 19th June, 1844, this order was revoked and a new one issued,
whereby it was provided that any act which, when done in British do-
minions, would render the doer subject to punishment, should be con-
sidered criminal to the same extent when done by British subjects in
the Ottoman dominions, and power was conferred upon the British con-
sular service in those dominions to hear, adjudge, and punish offenders.
Light offenses, meriting a punishment of imprisonment not exceeding
three months or fine not exceeding one hundred dollars, could be heard
by the consul alone. For more serious offenses he was required to sum-
mon in two or four British subjects as assessors.
During the same year a series of ordinances was issued by the gov.
6
JUDICIAL EXTRATERRITORIAL RIGHTS.
ernment of the British colony of Hong-Kong as "superintendent of the
trudle of Her Majesty's subjects in China.” One of these ordinances was
"to give judicial authority to Her Britannic Majesty's consuls within
the dominions of the Emperor of China."
In 1817 an order in council, dated 24th April, macle further provis-
ions respecting proceerlings against offenders charged with committing
the crines of arsonjxhouse-breaking, cutting or maiming, stabbing, or
assault en langering life, within the Ottoman dominions.
In 1857, great changes were again made by an order in council, dated
27th August. Jurisdiction was taken away from the consul-general and
conferred upon a person to be specifically commissioned and entitled
"the Judge of the Supreme Consular Court of Constantinople.” This
court was given an original jurisdiction, and also appellate jurisdiction.
As a court of original jurisdiction, it could hear and determine all crimi-
nal charges except when the offense charged was a capital one. In those
cases it could send the prisoner to an English settlement for trial, bind-
ing British subjects to appear as witnesses, and taking written evidence
from persons not British subjects. Misdemeanors.could be examined
and disposed of without a jury. All higher offenses were to be tried
with the aid of a jury of six indifferent British subjects. In. civil suits,
full power was given to make rules of practice. Power was given to
institute and prosecute proceedings in bankruptcy and insolvency. Ap-
peals could be taken from civil judgments to the Privy Council for judg-
ments to the amount of £1,000 and upwards.
On November 30, 1864, all previous orders were revised and put into
the form in which substantially they now remain. (See Appendix V.]
This last order in council creates a court stylech "Her Britannic
Majesty's Supreine Consular Court for the Dominions of the Sublime
Ottoman Porte," with its chief place of sitting in Constantinople. The
sole judge of this court is the consul-general for the time being, with
power in his absence to depute his authority. In addition there is in
each consular district a court for the district styled “Her Britannic
Majesty's Consular Court at " of which the local consul is judge.
In every district a jury list is macle out once a year from qualified Brit-
ish subjects, and in trials where juries are had the jury is to consist
of five. Provisions are made, also, for summoning assessors.
Within
the district of the consulate.general at Constantinople all jurisdiction is
vested in the supreme court. In the consular districts primary juris-
diction is vested in the consular courts, with appellate jurisdiction in
the supreme court. The order in the appendix indicates the lines of
these powers with precision, and also when trials are to be had by jury,
and when by assessors. Reference is made to it for more particular in-
formation.
Paragraph 7 and paragraphs 39 to 46, inclusive, are more especially
occupied with the civil jurisdiction of these courts. Particular atten-
tion is invited to these provisions. It will be seen that they make the
tribunals courts of law and equity, with all the jurisdiction legal, equi-
table, or other, which any British consul by custom bas or may exercise
in Ottoman dominion; that all are made courts of bankruptcy, courts
of vice-admiralty, and courts of probate; and that the supreme court.
has jurisdiction over persons of unsound mind and their estates; that
it is made a court for matrimonial causes, but without jurisdiction for
granting divorces, and that all the jurisdiction is to be exercised in con-
formity with the common law, the rules of equity, the statute law, and
other law for the time being in force in and for England. Power is also.
given to make rules for the conduct of all this business. And in order
7
JUDICIAL EXTRATERRITORIAL RIGHTS.
7
to know who are entitled to the privileges of the act and to assist in form-
ing the jury lists, provision is made for the registry of British subjects
residing in the Ottoman dominions.
The criminal jurisdiction of these courts, defined in paragraphs, 6, 7,
8, and 9, is as broad as the criminal jurisdiction of the courts of En-
gland. They also have jurisdiction over offenses against the capitula-
tions, against the articles of peace, against treaties between Great Brit- i
ain and Turkey, and against any rules and regulations properly made
for the observance thereof, or for the maintenance of order among Brit-
ish subjects in the Ottoman dominions. The power of imposing pun-
ishments is regulated by paragraph 62. The courts are to have regard,
as far as circumstances admit, to the punishments imposed by the law
of England in like cases. The detailed provisions for proceedings,
what cases may be disposed of without juries, in which case the juris-
diction of the district court is final, when appeals may be taken, what
steps are necessary in capital cases, &c., all will be found minutely
statel in the order.
Another order in council of the 9th of March, 1865, provided "for
the better governmeut of Her Majesty's subjects in the dominions of
the Emperor of China and the Tycoon of Japan." In its main features
this order is so like the last, and it is so long (filling thirty-eight pages
of the British and Foreign State Papers for 1864–5, vol. 1v., pages 136,
174) that it is not deemed necessary to send it to the coinmittee in full.
The general jurisdiction conferred upon the courts is substantially
the same as that conferred upon courts in Turkey. This is to be exercises
by a supreme court to be styled " Her Britannic Majesty's Supreme Court
for China and Japan," and by “Provincial Courts.” The supreme court
consists of one juge, an assistant judge, a law secretary, and as many
officers and clerks as may be necessary. It sits at Shanghai, exercising
exclusive jurisdiction within the Shanghai consulate district, and ap-
pellate jurisdiction over. the judicial action of the provincial courts.
The assistant judge and the law secretary seem to be authorized to
hear and determine causes in the Shanghai district, within the original
jurisdiction of the court, when specially empowered.. The same court
possesses extraordinary original jurisdiction throughout China and Ja-
pan, coucurrent with the jurisdiction exercised by provincial courts.
The provincial courts are held by the consuls-general, consuls, and vice-
consuls within their respective consular districts. The provisions as to
jurors; assessors, modes of proceeding, registration, &c., are in the
main like those in the order respecting the Ottoman dominions.
Great Britain, like the United States, has rights of extraterritoriality
in many other places. The jurisdiction is provided for in each case by
an order in council, and is exercised through a consul. In regard to
Madagascar, for instance, the order was made on the 4th of February,
1869. (See British and Foreign State Papers, 1868–9, vol. lix, page
1246.) The general provision respecting civil jurisdiction (sec. 6) is
that "all suits, disputes, differences and causes of litigation, of a civil
nature, arising between British subjects within the dominions of the
Queen of Madagascar, shall be heard and determined by Her Majesty's
consul, who shall be the sole judge and arbiter thereof respectively;
subject, nevertheless to an appeal against the decision of the consul
therein to the supreme court of the Mauritius, in cases where the sum
or matter.at issue is of the amount or value of 200 dollars or upwards”
with a further provision (sec. 7). as to assessors when the ainount in
dispute exceeds five hundred dollars.
The extent of the jurisdiction of crimes is regulated by the order
.
8
JUDICIAL EXTRATERRITORIAL RIGHTS.
(sec. 22) that, except offenses against the treaty with Madagascar and
the regulations for enforcing it, "no act done by a British subject within
the dominions of the said Queen shall by Her Majesty's consul be deemed
and taken to be a crime or misdemeanor, or offense rendering the person
committing it amenable to punishment, which, if done within any part
of Her Majesty's dominions, would not by a court of justice having
criminal jurisdiction in Her Majesty's dorpinions have been deemed and
taken to be a crime, a misdemeanor or offense, rendering the person
committing it amenable to punishment."
In China the British minister is empowered to make "regulations?
haring the force of law, for the peace, order, and good government of
the British colonies, and for securing the observance of the stipulations
of the treaties, and for maintaining friendly relations between British and
Chinese subjects. (See Appendix VI.) These regulations may be made
for the whole of China or for one or more of the consular districts.
They may be made alone or jointly with representatives of other powers
when they concern municipal government. But such regulations must
be submitted to and approved by the howe government.
The recent order in council, last cited, also makes regulations for
China and Japan with regard to prison regulations, to the registration
or record of mortgages of real estate, to bills of sale with or without de-
feasance or trust, to suits by and against partners, to suits hy and against
foreigners (i. ei, citizens or subjects of foreign countries with which Great
Britain is at peace), and with reference to Chinese, Japanese, or foreign
tribunals.
In China, Japan, and Turkey a British consul, on the arrest of a per-
son charged with the commission of a crime within another consular
district, may either proceed to examine, try, and punish the offender
as if the crime had been committed in his own district, or may, on the
requisition of the consul of the district within which the crime was com-
mitted, send him in custody to that court or require him to give security
for his appearance there.
6.—THE AMERICAN SYSTEM.
The first act conferring such judicial powers upon the consuls of the
United States was enacted August 11, 1848, and was entitled "An act
to carry into effect certain provisions in the treaties 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."
(9 Statutes at Large, 276.)
The jurisdiction in regard to civil matters conferred by this act in-
cluded authority to execute the provisions of the treaty, whether in re-
gard to persons or property, and jurisdiction over matters of contract,
and over all controversies between citizens of the United States and
others provided for by the treaty.
The jurisdiction over criminal offenses included the power to arraign
and try in the manner provided in the law all citizens of the United
States charged with offenses against law, committed in the dominions
of China (including Macao) and the Ottoinan dominions.
As to both classes, the jurisdiction was to be exercised in conformity
with the laws of the United States, so far as applicable; and the com-
inon law, so far as necessary to supply defects, was extended over all
citizens of the United States in those countries; and the diplomatic rep-
resentatives of the United States were further authorized to supply by
decrees and regulations any further defects.
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
9
The Department of State, unwilling to assume an arbitrary and al-
most unlimited power of legislation, has construed the power thus con:
ferred upon the diplomatic representatives as remedial; as it is said
in the consular regulations (edition of 1881, paragraph 612):
The authority conferred by the statute is defined to be a judicial authority. The
minister is required to execute the power in conformity with the laws of the United States,
with authority to supply defects and deficiencies in two cases only: 1. Where those
laws are not adapted to the exercise of the judicial authority conferred by the statute;
2. Where they are deficient in the provisions to furnish suitable remedies. In each
of these contingencies the minister has anthority to make regulations in order sto
furnish suitable and appropriate remedies," and for no other purpose whatever.
It is manifest that the act of 1848 was far below the necessities of an
American community in a country like China. The act of June 22, 1860
(see 12 Statutes at Large, page 72), undertook to remedy the defects. It
extended not only the cominon law, but equity and admiralty, over
American citizens in those countries. In other respects it improved the
working of the law of 1848, as for example, in section 8, by limiting the
amount of a fine for contempt; in section 9, by making a provision for
rules to regulate appeals; in section 10, by providiug for a permanent
list of assessors, or ask istants; by inserting section 18, conferring anthor-
ity to settle criminal cases not of an aggravated character; in section 21,
providing for the exercise in Turkey of civil jurisdiction when warranted
by usages in its intercourse with other powers, and in section 22, by
providing for the performance of a minister's duties in his absence by a
consul-general or consul. It also extended the provisions of the act to.
Persia, Japan, the Barbary States, and Siam, and generally to all un-
civilized countries in which we may obtain extraterritorial rights; made
provision for officers for the court and prisoners, and, finally, provided
a mode by which marriages of Americans in those countries might be
solemnized in the presence of our consular officers and attested by them.
By the act of July 1, 1870 (see 16 Statutes at Large, page 183), ap-
peals from final judgments of ministers in Japan or China were given in
criminal cases, and in civil cases where the matter in dispute exceeded
$2,500 exclusive of costs to the district court in California, and some
further provisions were made as to officers of courts and as to pris-
These several provisions are substantially embodied in the Revised
Statutes, sections 4083 to 4130, inclusive. The power conferred upon
diplomatic representatives to make regulations has been exercised as
follows: In the case of China, by Commissioner Davis, communicated to
Congress by President Fillmore September 9, 1850 (see Senate Ex-
ecutive Document No. 72, first session Thirty-first Congress); by Chargé
d'Affaires Parker, communicated to Congress by President Fillmore
March 1, 1852 (see Senate Executive Document No. 43, first session
Thirty-second Congress); by Commissioner McLane, communicated to
Congress by President Pierce February 25, 1856 (see House Execu-
tive Document No. 32, first session Thirty-fourth Congress); by the
same commissioner, communicated to Congress by President Pierce
July 15, 1856 (see House Executive Document No. 125, first session
Thirty-fourth Congress); by Commissioner Parker, communicated to
Congress by President Pierce December 12, 1856 (see House Executive
Document No. 11, third session Thirty-fourth Congress); by the same
commissioner, communicated to Congress by President Buchanan De-
cember 10, 1857 (see House Executive Document No. 9, first session
Thirty-fifth Congress); by Minister Reed, communicated to Congress by
President Buchanan December 27, 1858 (see House Executive Docu-
oners.
10
JUDICIAL EXTRATERRITORIAL RIGHTS.
inent No. 11, second session Thirty-fifth Congress); by Chargé d'Affaires
Williams, communicated to Congress by President Buchanan February
0, 1860 (see Senate Executive Document No. 7, first session Thirty-sixth
Congress); by Minister Burlingame, communicated to Congress by Presi-
dent Johnson, with his annnal inessage, December, 1865 (see Diplomatic
Correspondence 1865, vol. 2, page 413); by Chargé d'Affaires Williams,
communicated to Congress by President Johnson January 26, 1869
(see Senate Executive Document No. 34, third session Fortieth Con-
gress). I inclose a copy of the regulations as they now exist (see Ap-
pendix VII).
In the case of Turkey, by Minister Morris, communicated to Congress
by President Lincoln January 23, 1863. (See Appendix VIII.)
In the case of Japan, by Minister De Long, communicated to Con-
gress by President Grant January 27, 1871. (See Appendix IX.)
If the lawyers of the committee or the Senate will look at the several
documents I have referred to respecting regulations for China, they will
see how uncertain it is what are and what are not iu force. If they will
compare the Turkish, the Chinese, and the Japauese regulations (all of
which form part of this paper), they will become aware of the want of uni-
formity or rather the great divergency in practice caused by permitting
these regulations to be shaped from time to time by lawyers trained in
different schools. All this may have been well enough when our inter-
ests were small and the number of persons to be affected much less than
now. But the time has come when, with our interests in these coun-
tries maguified by the natural growth of our own country, and the Amer-
ican colonies there increased from those causes, and by the enormous
increase in facilities of travel, we need more uniform and more complete
and comprehensive laws than can be had under the present system.
7.-MUNICIPAL REGULATIONS.
Before explaining the changes iu existing legislation, which the kind-
ness of the committee permits me to suggest, it is necessary to take pote
of some cases in which the general jurisdiction conferred upon our con-
suls br treaty and legislation has been and is affected by common con-
şeut of all the treaty powers. Foremost among these are what are
known as the municipal regulations.
In inany of the settlements the foreigners of all nationalities reside in
a portion of the town set apart for them. As population increased it
became necessary to lay out and pave streets, to light them, to construct
sewers, to organize a police, and in general to make the municipal regu-
lations which are necessary for the government of such bodies. The
manner in which this has been done can be illustrated by the history of
the present foreign municipality in Shanghai.
After the opening of this port, the Chinese authorities set off to Great
Britain a tract of about a mile square outside the walls for foreign oc-
cupation. As it was by far the most desirable point for settlement, this
was soon occupied by settlers of all nationalities. At first it was main-
tained that British jurisdiction must be recognized; but this was re-
sisted, and, finally, the British consul gave way. In 1854 a set of land
regulations was agreed upon, which received the sanction of the consuls
of Great Britain, the United States, and France. (See Senate Execu-
tive Document No. 22, second session, Thirty-fifth Congress, page 159.)
The settlement continued to prosper, and need was developed for further
muuicipal powers. In 1866 new regulations were made, which were
communicated to Cougress by the President, with his annual message,
JUDICIAL EXTRATERRITORIAL RIGHTS.
11
in 1867. A copy of the ju rezulations is a:Inexed. (See Appenilix X.)
Particular attention is invited to the subjects regulated by the by-laws,
and to the forty-tirst by-law.conferring upon “the proper consnlar repre-
sentatire” jurisdiction to enforce them.
Regulations of a like character have been established, and are in force
in other places in China and Japan. Their legality and the propriety
of enforcing them upon citizens of the United States have been formally
recognized by this Departinent. (Mr. Fish's instructions to Mr. Bing-
hau, January 20, 1876, Appendix XI.)
In the Samoan Islands a similar jurisdiction is reposed in the Ameri-
can, German, and British consular representatives, jointly, by an agree-
ment which has been recognized by the Department of State, although
not formally regarded by either power as a treaty. (See Appendix
XII.)
8.-JIIXED COURTS.
The fourth article of the treaty with Turkey provides that "if litiga-
tions and disputes should arise between the subjects of the Sublime
Porte and citizens of the United States, the parties shall not be heard,
nor shall judgment be pronounced unless the American dragoman be
present.” In practice a different course has been adopted. By an ar-
rangement concluded by note between the Porte and the four ambassa-
dors, mixed tribunals are held at the seat of every consulate in the
empire in which each nationality may be represented where its citizens
are concerned, and in them suits between foreigners or foreigners and
natives are justiciable. The consuls make out lists of leading residents,
or “notables," of their several nationalities, froin which froin tiine to
time the selections are made. The French court of appeals at Aix has
seemed disposed to regard the tribunals as having no legal basis. It is
said that Great Britain, on the contrary, has recognized them in the
orders in councils, but I have not been able to find the order.
In Egypt a mixed tribunal of more permanent and dignified character
has been established by decree of the Khedive, and with the diplomatic
consent of the leading powers. The United States are represented on
this tribunal by three judges, commissioned by the Khedive on the
nomination of the President and paid by the Egyptian Government.
The twenty-fourth article of the treaty of 1858 with China provides
that-
Where there are debts due by subjects of China to citizens of the Uuited States, the
latter may seek redress in law; and, on suitable representations being made to the
local autborities, through the cousul, they will cause due examination in the premises,
and take proper steps to compel satisfaction.
The twenty-eighth article of the same treaty provides that,
if controversies arise between citizens of the United States and subjeets of
China, which cannot be amicably settled otherwise, the same shall be examined anci
decided conformably to justice and equity by the public officers of the two nations,
acting in conjunction.
The practical construction given to these provisions is not the same
in all parts of the empire. Thus, at Canton, it has been the custom to
follow the direction of article 24 as to notice to the local authorities,
and they have esercised the jurisdiction, giving the consul the right to
be present. (Mr. Lincoln to Mr. Seward, Foreign Relations for 1879,
page 221.). In Chin-Kiang such cases are tried before the consul, the
Chinese baving a right to have a native official sit with the consul.
(Mr. Scruggs to same, Ib. 222.) In Foochow they are tried by the con-
sul and the local district magistrate. (Mr. De Lano to same, Ib. 223.)
12
JUDICIAL EXTRATERRITORIAL RİGHTS.
In Hankow they are tried by the consul alone. (Mr. Shepard to same,
Ib. 224.) In Ningpo there is no mixed court. The nationality of the
defendant determines the court, the American consul having the right
to be present in the Chinese court. (Mr. Lord to same, Ib. 226.). “The
Chinese government bas established a mixed tribunal, so called, at Shang-
hai, in which suits against Chinese defendants brought by foreigners
may be tried. This court is so constituted that the native magistrate
decides all matters coming before him, and the foreign officer present
acts only in the capacity of an assessor or assistant, for the purpose of
securing a clear exposition of the facts and considerations upon which
the foreign complainant relies." (Mr. George F. Seward to Mr. Evarts,
Foreign Relations for 1880, page 150.)
As this class of tribunals is outside of treaties, it is not worth while
to attempt to legislate about them, any farther than to give assent
through the statute to the presence of an official representative of the
United States. The want of uniformity is to be regretted; but this can
be cured by barmonious executive action between the ministers of the
United States and the native authorities. It cannot be reached by legis-
lation.
9.-THE PROPOSED AMENDMENTS.
This résumé of the French and English legislation and of the sub-
jects which require legislation leads up to the brief explanation of the
accompanying bill (see Appendix XIV), to whichi, in closing this already
too long note, I invite the attention of the committee.
The title adopts in principle the British definition of the places to
which the legislation is to apply as places out of the territory and
dominion of the United States," and it also describes one of the objects
of the legislation to be to amend the Revised Statutes from sections 4082
to 4130, inclusive.
The first section provides that the jurisdiction, so far as it is judicial,
is to be exercised through courts which are to be courts of record.
The second, third, fourth, fifth, and sixth sections provide for courts
in China and Japan.
The consuls are to hold consular courts as heretofore. In criminal
matters these courts are to have the power of arresting offenders as
heretofore, and summarily to try all offenders when the punishment is
imprisonment not more than six (6) months, or fine not more than $200.
With the exception of capital offenses, more aggravated offenses are to
be tried in tbese courts with the help of a jury. In civil cases the orig-
inal jurisdiction of these courts remains as at present, except that when
more than $200 is involved either party may demand a jury, and that
all causes in equity and admiralty are to be heard in a district court.
A district judge is to be appointed for China and for Japan. China
is divided into three districts and Japan constitutes one. These courts
have exclusive original jurisdiction in equity and admiralty, and original
jurisdiction concurrently with consular courts in civil causes in which
more than $500 is involved, and appellate jurisdiction for the consular
courts in certain civil and criminal cases. The district courts, also, have
exclusive jurisdiction in capital cases which are to be tried with juries,
and sole power to issue writs of habeas corpus.
The two judges sitting together with the consul-geveral for Yokohama
form the supreme court for Japan, and with the consul-general for
Shanghai the supreme court for China, each with appellate jurisdiction
only.
Section 7 provides for proceedings in case of voluntary and in volun.
JUDICIAL EXTRATERRITORIAL RIGHTS.
13
tary insolvency in China and Japan. These proceedings relate solely to
these countries. It is not supposed that the colonies or the business
in other countries call for them.
Section 8 amends the Revised Statutes so as to make them conform
to the principles of this bill. All judicial power is taken away from the
ministers and left with the consuls. The only countries in which a min-
ister of the United States now has judicial functions are China, Japan,
and Turkey. ' In China and Japan the bill proposes to replace the min-.
ister with regularly organized courts. In Turkey, where the capitula-
tions give us only criminal jurisdiction, it is believed that the system
will work better by providing juries for capital and aggravated offenses,
leaving the trial in all cases to the local consul. The principal change
made in the present system of trials in all countries outside of China
and Japan is the abolition of the system of assessors and the introduc-
tion of a jury. system. The bill, as presented to the committee, and as
the printer will be asked to print it, will show the statutes as they now
are and the changes which are proposed, so that the committee may
have before it the form and scope of every proposed amendment.
Section 9 relates to the limitations of real and personal actions in all
the courts ; section 10 to the right of aliens to sue in the courts estab-
lished by the act; section 11 abolishes imprisoument for debt, and ex-
empts from seizure or execution a limited amount of household furni-
ture.and other property.
Section 12 confers authority on consuls to take part in making munic-
ipal regulations, and to enforce them for the benefit of the municipality.
Section 13 relates to mixed courts, authorizing consuls to participate in
them. Section 14 authorizes consuls to issue process, and compel at-
tendance of witnesses, whose evidence is needed in consular courts of
other powers; and section 15 relates to depositions to be used in the
courts of the United States, consular and otherwise.
Section 16 enacts a short statute of frauds with provisious validat-
ing chattel mortgages. The want of these laws is represented as one of
the greatest evils under which the American colonies are suffering.
Section 17 relates to marriages and divorces, and the rights of married
women. Divorces a vinculo are allowed only for adultery committed in
the country in which the court is situated. Marriages are allowed when
not incestuous.
Section 18 relates to wills and their probate, and to the settlement of
the estates of deceased persons, estates of minors, and the succession
to personal property. As the permanent American colonies in these
countries have enlarged, some provisions of this sort are essential. The
same may be said of section 19, which provides for successions to real
estate, and of section 20, which relates to partnerships, general and
limited.
Section 21 is a jury law. It provides for a registry of persons qual-
ified to be jurors and for the summoning of juries. In these small com-
munities it would be inconvenient, if not impossible, to bave juries of
twelve. The English system is followed, making juries of five, and re-
quiring them to be unanimous.
Section 22 is a code of crimes and punishments.
Section 23 relates to the fees of clerks, marshals, interpreters, and
others. Such of these as are general and do not belong to the officers
are, with the fines and penalties, to remain in the clerk's hands, as a
fund for payment of the judicial expenses, to be accounted for to the
Secretary of State.
Section 24 inakes.it the duty of the Secretary of State and the Attor-
14
JUDICIAL EXTRATERRITORIAL RIGHTS.
ney-General to prepare a code of practice and regulations to carry the
act into effect. When approved by the President, this is to have the
force of law, but may, from time to time, be, in like manner, changed
and amended. This is substantially the English system, substituting
the two Cabinet officers and the President for the Sovereigu and the
privy council.
Section 25 guards against a construction that the act may take away
some consular powers not intended to be interfered with, and section 26
provides that the main provisions of the act are not to go into effect until
six months after the President's approval of the code, but that the sec-
tions directing the code to be made and the sections relating to purchase
of buildings for courts and prisons may take effect at once.
10 -CONSTITUTIONALITY OF THIS MEASURE.
It has been suggested in some quarters that the present laws infringe
upon the Constitution. I beg to trespass on the time of the comunittee
a little more, while I notice this doctrine, which I cannot but regard as
erroneous.
The Constitution, by its terms, is ordained and established "for the
United States of America.” The places in which laws of this class are
in force are out of the United States and form no part of our domain.
The Constitution and the laws of the United States, made in pursu-
ance of it and treaties made under its authority, are to be the supreme
law of the land; but not of any other land, nor for American citizens
living in any other land.
That the framers of the Constitution so understood it we may gather
from contemporaneous evidence. Two treaties granting extraterritorial
rights were concluded nearly simultaneously with the adoption of the
Constitution. The first (the treaty with Morocco of January, 1787) pro-
vides that if citizens of the United States in Morocco have disputes
with each other the consul shall decide between the parties. The second
(the treaty with France of November 14, 1788, negotiated by Jefferson)
contained a provision that all differences and suits between citizens of
the United States in France should be determined by the consuls and
vice-consuls, either by a reference to arbitrators or by summary judg.
ment without costs. This treaty was submitted to the Senate by Presi-
dent Washington on the 11th of June, 1789, and was unanimously
accepted by that body on the 29th of the following July:
In the sixty years which interrened prior to the passage of the act of
1848, treaties .conferring extraterritorial rights were concluded with
Algiers, with China, with Morocco (extending the treaty of 1787), with
Muscat, with Tripoli, with Tunis, and with Turkey; but no attempt was
made to carry the jury system of the United States into any of those
countries, and no law of any kind was enacted on this subjeot until the
law of August, 1848, was passed.
When this law was enacted Congress had for its guide the French
system of assessors and the British laws, which had copied that system.
Great Britain seemed to have arrived at the conclusion that juries were
there impracticable. Congress apparently accepted that conclusion, and
copied in principle the French and English systems. The statesmen of
those days, in a Senate of which Mr. Webster, Mr. Calhoun, Mr. Badger,
Mr. Jolin Davis, Mr. Jefferson Davis, Mr. Clayton, Mr. Benton, and Mr.
Reverdy Johnson were members, and a House containing men like Mr.
Charles Ingersoll, Mr. Jos. Ingersoll, Mr. McLane, Mr. Ashmun, Gen-
eral Schenck, Mr. Alexander Stephens, and Mr. Robert O. Wivthrop
JUDICIAL EXTRATERRITORIAL RIGHTS.
15
passed this act unanimously, without a question as to the constitutional
right to do so. In 1860 another Congress re-enacted it, with some amend-
ments and other provisions added to it, as has already been shown.
In 1870 it was agaju the subject of consideration, when appeals were
granted to the district court for California. Finally, in 1873, the pro-
visions were again re-enacted in the Revised Statutes.
Still further, the constitutionality of these law's has been the subject
of a judicial decision in the circuit court of the United States for the
ninth circuit, and has been fully sustained by Mr. Justice Field in an
elaborate and exhaustive opinion.
Thus we find a harmony of sentiment between tbe , early executive
action contemporaneous with the forming of the Constitution, the later
executive action by those who were, familiar with or took part in form-
ing it, the legislative actiou by successive Congresses for more than a
generation, and the judicial action of an entineut member of the Supreme
Court. This justifies us in thinking that the treaties in question, instead
of extending the provisions of the Constitution over the territories of the
powers with which they were negotiated, operated to take out of the
jurişdiction of the local courts either the civil disputes of citizens of the
United States or the criminal offeuses committed by them, or both. It
woull work great injustice to hold that they operated to put those civil
disputes beyond the reach of process or those offenses beyond the reach
of punishment, until juries could be organized under authority of law.
Ķet 110 one will question that, even admitting the power of Congress
to decline to confer the right of trial by jury in such cases, the spirit
of our institutious calls for laws couferring those rights when it becomes
practicable to grant them. The British system of laws, wbich we copied
in 1848, has widely departed from its then inodel, and bas been more
and more adapted to the English jury system. The accompanying draft
is intended to incorporate into our laws tluse changes and ameliora-
tions which British subjects have long enjoyed. It proposes to do this
by general legislation, supplemented largely by executive regulations.
Tuis seems to be wiser than to adopt the legislation of any particular
State, as suggested by some of the correspondents of the committee.
The bill was.drawn by Mr. Davis, the dissistant Secretary of State, Mr.
O'Connor, the Examiner of Claims, funishing the sections relating to
the punishment of criinis and offenes, and to the fees of officers. That
it may be found, wlien printed, defective in detail is more than probable.
But I feel no doubt that it is substantially correct in principle; and that
in the valuable papers which Mr. Davis has collected, and which I
transinit herewith, the conmittee will find ample material to correct all
· errors in the accompanying draft, or for fraining a new bill if they pre-
fer to do so.
I have the honor to be, sir, your obedient serrant,
FRED'K T. FRELINGHUYSEN.
[Inclosures. 1
APPENDIX I.--Translation of the royal French edict of June, 1778.
II.-Translation of the French law of May 28, 1836.
III.-Translation of the French law of July 8, 1852.
IV.-Statute of Great Britain, 6 and 7 Victoria, chap. XCIV.
V.-British order in counci), November 30, 1864.
VI. -British order in council, October 25, 1881.
16
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX VII.—Regulations in force in the consular courts of the United States in
China.
VIII.—Regulations in force in the consular courts of the United States in
the Ottoman dominious.
IX.--Regulations in force in the consular courts of the United States in
Japan.
X. --Land municipal regulations at Shanghai.
XI.—Mr. Fish to Mr. Bingham, January 20, 1876.
XII.-Convention relating to the government of Apia.
XIII.-Provisions in various treaties and conventions conferring rights of
extraterritoriality upon the United States.
XIV.-Draft for an act concerning the exercise of the jurisdiction con.
ferred upon the United States in places out of their territory and
dominion, and to amend the Revised Statutes from section 4082 to
4130, inclusive.
[APPENDIX I.]
1
ROYAL FRENCH EDICT OF JUNE, 1778, REGULATING THE JUDICIAL FUNC-
TIONS OF FRENCH CONSULS IN THE LEVANT AND THE BARBARY
STATES.
[Translation. ]
LOUIS, ETC.:
Among the duties which our consuls perform in foreign countries,
and particularly in the seaport towns of the Levant and of the Barbary
States, to protect in those places the commerce of our subjects, we have
turned our attention to the administration of justice; we have recog-
· nized that, conformably with the ordinances passed on this subject, actions
should be conducted before our consuls by the simplest and most sum-
mary procedure, and that nevertheless the same ordinances do not ex-
pressly free them (the consuls) from the formalities observed in our
kingdom, which are for the most part impracticable under a foreign
power. Wishing to leave nothing to be desired in a matter. so impor-
tant to maritime commerce, we have judged it proper to establish for the
jurisdiction which our consuls exercise in foreign countries, and for the
civil and crimiñal proceedings which they conduct, rules easy to ob-
serve, and in accordance with which they shall administer justice in the
different consulates, in a uniform manner and with all necessary expe-
dition.
For these causes and others, etc.:
ARTICLE 1. Our consuls shall have coguizance in the first instance
of actions, of whatever nature they inay be, arising between our subjects
-merchants, seamen, and others—in their consular districts; our said
consuls shall provide, each in his district, for the maintenance of a good
and strict police, over our said subjects, of whaie ver rank and con-
dition they may be, both on land, in the ports, and in the different an-
chorages and roadsteads where ships of commerce receive and discharge
their cargoes; we order our said consuls to adıninister justice faithfully;
and in consideration of the remoteness of the places where they are
most frequently attached to the consular service, after their nomina-
tion we free them from taking oath.
2. We expressly forbid and prohibit our subjects journeying, either
JUDICIAL EXTRATERRITORIAL RIGHTS.
17
by land or sea, or engaging in commerce in a foreign country, from
summoning, for any cause whatever, our other subjects before judges or
other officers of foreign powers, under penalty of 1,500 livres fine, to
the payment of which the offenders may be condemned, and may be im-
prisoned until payment is made, at the suit of the public prosecutors of
our courts of highest resort, which have appellate jurisdiction of the de-
cisions of the consuls before whom the said offenders should have made
their demand or preferred their complaints; and in case execution is
had against a French subject in virtue of judgments or ordinances ema-
nating from a foreign authority, those of our subjects who shall have
obtained them shall, furthermore, be also held by imprisonment to
costs, damages, and interest for the benefit of the parties who shall
have therein suffered in any manner whatever.
3. We order our consuls to set forth the proofs of the offenses men-
tioned in the preceding articles, by records of the cases (procès ver-
baux) or formal presentments, which shall be proceeded with in the
presence of the offenders or of those duly Summoned, and we order
them to forward the said records and presentmeuts to the secretary of
state having charge of the department of the navy (now of foreign
affairs), who shall pass them over to our public prosecutors, each in his
district.
4. The fines which shall be imposed by reason of the said offenses
shall be payable, to wit, for the seaports of the Levant and of the Bar-
bary States to the “chambre de commerce” of Marseilles, and for other
consulates to the chambres de commerce" nearest the places where the
offenses shall have been committed.
5. Independently of the penalties imposed by the three preceding ar-
ticles, a statement shall be made through the secretary of state haring
charge of the department of the navy (foreign affairs) of acts of insub-
ordination and disobedience, which shall be committed against the
authority that we have confided to our consuls, and which may trouble
the peace and trade of our subjects in foreign countries, to the end
that the same may be provided for by us with all possible expedition.
6. In order to make all decisions in civil matters definitive, our con-
suls shall be assisted by two of our subjects, who shall be chosen from
among the people of most respectability (notables) in the consular dis-
trict, and on whom we confer a deliberative voice; for this purpose the
said persons (notables) shall first take before the consuls the oath in
such case required; they will not, however, be obliged to repeat the
oath once taken when the same persons continue to be associated with
the consuls for the purpose of administering justice.
7. The consul, or the officer representing him, shall, nevertheless, alone
pronounce judgment in the seaports where it shall be impossible to
procure such persons of respectability (notables); and this impossibility
shall always be set forth in the decisions.
8. That one of the officers of the consulate intrusted with the chan-
cery of the consulate shall perform, under the oath of office which he
shall have taken, the duties of clerk of the court, in matters both civil
and criminal, as well as the duties of notary publíc; he shall make out,
furthermore, all summons, and shall serve in person all writs in order
to supply the want of a bailiff.
9. When a petition is made or an action brought before the consul,
the party shall himself present his complaint; and in case he cannot do
this, it shall be lawful for him to supply his place by an attorney legally
appointed, or by making at the chancery of the consulate, on the subject-
matter in question, a circumstantial declaration, a certified copy of which
S. Mis. 89 -2
18
JUDICIAL EXTRATERRITORIAL RIGHTS.
sball be delivered to him, which copy) shall be presented to the consul
to take the place of the said complaint.
10. Upon the said complaint or declaration in a civil action, the consul
shall order the parties to appear in person, at the place, day and hour
which he shall deem proper to fix, taking into consideration the places
and circumstances; he is also authorized to order the parties to appear
from hour to hour, in cases which appear to him to demand much ex-
pedition; what he orders shall be executed in all cases in spite of any
opposition or appeal.
11. The said complaint or declaration shall be served by the officer
who performs the duties of chancellor, with the documents sustaining
the demand; and if they are too long the party can deposit them at
the chancery, where they shall be shown to the defendant without being
removed.
12. This legal notice shall be served verbally on the person of the
defendant or at his residence, if it shall be known at the consulate, and
upon those who shall not have a domicile, who shall have absented
themselves or cannot be found, by notices posted in the chancery of the
consulate; mention shall be made, in the original and in the copy, of
the name of the defendant, of the person with whom the legal notice
shall have been left, or of the notice which shall have been posted;
summons shall be served on the defendant to appear before the consul
on the day, place, and hour indicated by his order; the original and the
copy sball be signed by the officer performing the duties of chancel-
lor; all this on penalty of becoming void, and without the necessity of
observing any other formalities.
13. Seamen and passengers who have no other residence than on
shipboard shall be there summoned, in the form prescribed by the pre-
ceding article.
14. Parties must appear before the consul on the place, day, and
hour indicated by his order.
15. The parties can, however, in case of sickness, absence, or other
disabilities, transmit to the consul written statements subscribed by
them, which shall contain their prayers and defenses, and to which they
shall' annex their documents respectively, if the said parties do not
prefer to be represented by attorneys in fact, or affidavits ad hoc and in
writing, which meinorials or powers of attorney and affidavits shall be
deposited at the chancery.
16. A final decision upon the said appearance of the parties, or on
the memorials, documents, or affidavits transmitted, shall be rendered
at once by the consul, assisted by two persons of respectability, if the
suit shall appear to them sufficiently at issue.
17. When it shall be deemed necessary to hear by word of mouth one
of the parties having some legitimate disability to presenting himself
in person, the consul shall appoint one of the officers of his cousulate
or a French person of respectability (notable) to examine the said party
on the facts which require explanation; the said commissioner shall be
assisted by the officer performing the duties of chancellor in drawing
up the examination in writing.
18. When it shall be necessary to make search at any place, or on
board a ship, the consul may order that he shall go there in person, or
may name a commissioner for that purpose, as in the preceding article.
The consul shall determine by the saine order or preliminary dicision
the place, day, and hour of the visit, which shall take place in presence
of the parties or those duly summoned by the service of the said order
or preliminary decision in the form prescribed by articles 11 and 12 of
JUDICIAL EXTRATERRITORIAL RIGHTS.
19
the present regulations: of all this he shall draw up an official report
(procès verbal).
19. In cases where the question is simply that of ascertaining the value,
condition, or waste of certain goods and merchandise, the consul may
confine himself to appointing by virtue of his office, from among those of
our subjects residing in his consular district, experts, who, after having
taken the oath required, shall proceed, in the presence of the parties,
or those duly summoned, to the inspections and appraisements which
shall have been ordered, of which they shall draw up an official report
(procès verbal), which shall be deposited in the chancery.
20. There shall be delivered to the parties who shall request it, certi-
fied copies of the official reports mentioned in the preceding articles, and
on which they may note their observations; it is not necessary to serve
the said official reports before the decision, which shall be rendered by the
consul, assisted by persons of respectability with all possible expedi-
tion, either in the presence of the parties or their attorneys, or after
having deliberated thereon.
21. If the parties disagree as to the facts in a case in which parol evi-
dence is admissible, they shall be compelled to name their witnesses im-
mediately; and the consul shall order that the said witnesses shall be
summoned to appear before him on the day and hour that he shall in-
dicate by the same decision or order; and should such an examination be
ordered in the absence of the parties or of one of them, the consul shall
fix, according to circumstances, a period within which the names of the
witnesses shall be sent or delivered to the officer performing the duties
of chancellor, so that time may be had to summon the witnesses before
the day fixed for the hearing.
22. The French subjects named as witnesses shall be summoned by
the said officer, in pursuance of the decision or order of the consul.
the case of foreigners, the consul shall make requisitions upon the for-
eign consuls in accordance with the usage in the port, for the purpose of
obtaining an order compelling them to appear; as to subjects of the
powers in whose territory consulates shall be established, the consuls
shall conform, for the purpose of procuring their appearance when it
is deemed proper or necessary, to the agreements and usages observed
in the different consulates.
23. The parties in whose presence the testimony shall have been or-
dered are bound, without notice, to appear before the judge on the day
and hour which shall have been determined upon to receive the evidence
of the witnesses; and as to parties who shall have transmitted their
written statements or shall have caused themselves to be represented by
attorneys, the simple notification of the said decision or order, in the
form prescribed by articles 11 and 12 of the present regulations, shall be
binding upon them as a summons to name their witnesses, and as notice
to be present at the examination.
24. We enjoin upon our subjects summoned as witnesses before our
consuls in foreign countries to present themselves in exact accordance
with the summons. Those failing to appear, who shall not have shown
a legitimate excuse to the consul, shall be condemned to a fine of thirty
livres for the first offense and one hundred livres for the second, which
fines shall be paid to the poor fund. Fines in the case of further diso-
bedience by the same witness shall be doubled for each repetition of
offense, although repeated in different suits. Our consuls may also
order, even on the first failure to appear, that the offenders shall be ar-
rested and forced to come and testify, as far as prudence may permit in
20
JUDICIRL EXTRATERRITORIAL RIGHTS.
+
foreign countries, and in places where the government is accustomed to
lend them assistance.
25. After the parties or their attorneys shall have verbally offered
their objections, if they shall have any, to the witnesses, and mention
shall have been made thereof in the decree which shall take the place of a
record (procès verbal), the said witnesses shall be heard summarily; their
depositions shall be set forth in the said decree, and the consul, assisteil
by two persons of respectability may decide concerning the evidence
immediately, or order the documents to be left with him for delibera-
tion thereon.
26. Foreigners who do not understand the French tongue shall be
assisted, in giving their testimony, by an interpreter, who shall first
take, before the consul, the oath in such case required. The drago-
mans, however, and other interpreters attached to the consulate, who
shall have been sworn at the time of entering upon their duties, are
exempted from repeating the oath.
27. Notice, in the form prescribed by articles 11 and 12 of the present
regulations, given to parties against whom judgment shall be rendered, of
final decrees, whether after hearing or by default, shall take the place of
every summons and order of the court; after such notice the said parties
shall be bound to execute the said decrees in accordance with the cus-
toms in force in the different consulates.
28. Those against whom adecree by default shall have been rendered
may nevertheless present their bill of exceptions thereon to the consul
within three days at the latest after the day of the notice of the said
decrees given to the party in person, or to his attorney; after this time
has passed no objections can be received. Nevertheless, in case the
party condemned shall be absent and shall have no attorney to represent
him, the period within which the objections are to be brought shall not
begin to run until the day on which notice shall have been given him of
the judgment; the judgments by default shall, however, be levied on
the goods of the defaulter, three days after the notification shall have
been made thereof to him personally at his residence or by placard, con-
formably with the above Article 12.
29. The exceptions shall be disposed of as soon as possible, observing,
as circumstances allow, the summary formalities above prescribed.
30. Final judgments rendered by our consuls, assisted by two persons
of respectability on bills of exchange, bills, accounts stated, or other
contracts in writing, shall be executed provisionally, notwithstanding
any exceptions and appeal whatever, and without prejudice thereto,
all of which shall be ordered by the said judgments.
31. In cases in which verbal agreements or running accounts are in
question, an order shall appear in the judgments themselves that they
shall be executed notwithstanding appeal, and without prejudice to the
same, upon security given, which security shall be received before the
consul.
32. The party who shall desire the execution by virtue of the preced-
ing article, of a judgment whereof the party condemned shall have given
notice of an appeal, shall present to the consul a petition on which he
shall note his security; the consul shall order that the parties shall come
before him,.on the day and hour which he shall name, in order that, if
there be ground therefor, the said security may be received. Notice of
this petition and the order thereupon shall be given to the defendant in
the form prescribed by Articles 11 and 12 of the present regulations.
33. The said security shall be accepted, if clearly good, without an
exaction of an inventory of property.
JUDICIAL EXTRATERRITORIAL RIGHTS.
21
34. The parties may moreover, in lieu of the said security, deposit the
amount of the judgment in the strong box of the consulate; and after
notice given of the treasurer's receipt, the judgments shall be executed.
35. Independently of the execution of the judgments of our consuls by
all practical ways in the country where they shall have been rendered,
they shall moreover be executed throughout the whole extent of our
kingdom, in virtue of the pareatis, in the same manner as judgments
rendered by our other judges.
36. Our consuls may order imprisonment in all the cases provided for
and set forth in our laws.
37. Appeals from judgments of our consuls established in the sea-
ports of the Levant and on the coasts of Africa shall be taken to our
high court at Aix; and as to other consulates, to that court of final resort
nearest the place where the decision shall have been rendered.
38. We order that justice shall be administered, in civil suits, at Con-
stantinople, where we have no consul established, by three persons of
respectability (notables), French subjects, who shall be named by our am-
bassador acting commissioners, and whom we exempt from being sworn.
In the instrument of appointment of the said commissioners, our ambas-
sador shall designate the one among them who shall perform the duties
of consul, for the purpose of issuing the orders of the court on petitions
and affidavits; the official performing the duties of chancellor at Con-
stantinople shall give all the notices required by the said orders, and
shall also perform the duties of clerk to the said commissioners, who
shall furthermore conform in every respect to the preceding provisions
of the present regulations; and the appeals from their decisions shall
be carried to our high court of Aix.
Articles 39 to 81. These articles, not here repeated, were repealed by
the law of the 28th May, 1836, Article 82; they concern the prosecution
and sentence of offenses, felonies, and crimes committed by French sub-
jects in the sea-ports of the Levant and the Barbary states; they have
been replaced by the law of the 28th of May, 1836.
Articles 82 and 83. [These articles, relating to the law of consular
police, are still in force. It has not been considered necessary to trans-
late them.
84. Vice-consuls or other officers appointed, under whatever title,
in the different consulates or sea-ports to take the place of and to repre-
sent consuls, shall perform, in the absence of a consul, all the duties
mentioned in the present regulations, to which they shall conform in all
points.
85. Furthermore, the edict of 1681, and other later edicts relating to
consular jurisdiction, shall be carried out by our consuls in foreign coun-
tries, in so far as they have not been repealed or modified by our present
regulations, which shall be executed in foreign countries where we have
established or shall establish consuls or other officers to protect the com-
inerce of our subjects, notwithstanding all ordinances and other laws ob-
served in our kingdom, which we have modified and do hereby modify
for this specific purpose. We therefore order, &c.
]
22
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX II.
LAW OF THE 28th MAY, 1836, RELATING TO THE PROSECUTION AND SEN-
TENCE OF VIOLATIONS OF REGULATIONS, MISDEMEANORS, AND CRIMES
С IMITTED BY FRENCH SUBJECTS IN THE SEA-PORTS OF THE LEVANT
AND THE BARBARY STATES.
TITLE I.-PRELIMINARY PROCEEDINGS.
1. In cases provided for by treaties and agreements or authorized by
usage, consuls in the sea-ports of the Levant and the Barbary states
shall continue to examine, either on complaint or information, or of their
own motion, and without the necessity of a public prosecutor, into vio-
lations of régulations, misdemeanors, and crimes committed by French
subjects in the said ports.
2. In case of a vacancy in a consulate, or of absence or disability of
consuls, the officers or other persons appointed to replace, supply the
place of, or represent consuls, shall perform the duties which are in-
trusted to the latter by this law.
The same duties shall be performed at Constantinople by the officer
designated by the Emperor.
3. Any person who shall allege that he has been injured by a crime, a
misdemeanor, or a violation of regulations may make complaint thereof;
he can, if he deems proper, constitute himself a civil party in the action.
Any civil party who may not live in the place where the consul in-
trusted with the prosecution resides, shall be held to elect a domicile
there by a declaration made at the chancery of the consulate, in de-
fault of which he cannot avail himself of failure of notice of any of
the proceedings incident to the examination.
4. Upon complaint made to a consul, either by petition, or by declar-
ation made at the chancery, or upon knowledge that the consul may
obtain by common report, of a crimne or misdemeanor committed by a
French subject, the consul shall make an official visit if there is reason
therefor, with all possible expedition, assisted by the officer who shall
perform the duties of clerk, to the place where the crime or misdemeanor
has been committed, for the purpose of verifying it by an official report.
He shall take possession of everything tending to prove criminality,
and can make examinations and searches at the residence and place of
business of the accused.
5. In case of assaults or murder the consul shall be attended by a
physician, who, after having taken the oath in such case required, shall
examine the wounded man or the corpse, shall set forth the facts con-
cerning the severity of the wounds or the manner of death, and shall
make his statement to the consul of the whole matter. This statement
shall be added to the official report, which shall be signed by the consul,
the clerk, and the physician.
6. The consul shall hear, as far as possible, the witnesses on the spot
where the crime or misdemeanor has been committed, without the ne-
cessity of summons. Every inquiry shall tend as much towards sustain-
ing the charge as towards dismissing it.
7. Consular agents in the sea-ports of the Levant and the Barbary
states shall immediately notify the consul of violations of regulations,
misdemeanors, and crimes which have been therein committed; they
JUDICIAL EXTRATERRITORIAL RIGHTS.
23
shall also receive complaints and informations, and shall transmit them
to that officer.
They shall draw up, in all cases, the necessary reports; they shall
take possession of everything tending to prove criminality, and shall col-
lect, in virtue of their discretionary powers of taking evidence not under
oath, the allegations of witnesses; but they may not, except immediately
after the offense (en cas de flagrant délit], search or make investigations
in the residences and places of business of the accused, unless they have
received, for this purpose, a special authorization from the consul or
from the person who performs his duties.
8. The consul may, according to the facts set forth in his official report,
order the accused to be arrested, in accordance with the customs of the
country in which his consulate is situated.
The accused cannot be imprisoned except in the following cases : 1st,
when the subject matter is a crime; 2d, when the subject matter is a
misdemeanor, the penalty for which is imprisonment, and when, in this
latter case, the accused is not registered, either as the present or former
head, or as manager of a commercial house.
9. In the case of prosecution of a misdemeanor, temporary liberty may
be granted at any stage of the proceedings to the accused, if he offers
bail to appear in person, and if he elects domicile at the.place where the
consular tribunal sits.
The bail in this case shall be fixed by the consul.
If there is a civil party, the bail shall be increased by the whole
amount of estimated damage as may be provisionally decided by the
consul.
Vagabonds and persons who have undergone judicial punishment
cannot, in any case, be admitted to bail.
10. The accused against whom there shall have been issued an order
of arrest shall be summoned to appear to be examined on the day and
hour that the consul shall appoint by his order.
When a French subject accused of a crime or misdemeanor shall have
been arrested and put in a place of security, either on shore or on a
French ship in the harbor, the consul shall examine him within the next
twenty-four hours.
The examination shall be signed by the accused, after it shall have
been read to him, and, if not, mention shall be made of his refusal to
sign, or the reasons which prevented him. The consul shall number
and place his initials on each page of the examination, and shall sign it
at the end with the clerk.
11. The consul may repeat the examination of every accused person
as often as he shall judge it necessary for the conduct of the case.
12. When the consul shall discover private writings or signatures
which may result in proofs, or indications, he shall add them to the
documents of the prosecution, after having put his initials to them; they
shall be shown the accused at the time of his examination; the consul
shall ask if he has written or signed them, or whether he wishes to, or
can identify them; he shall in all cases be called upon to affix his ini-
tials to them.
13. In case the accused shall refuse to identify the writings and sig-
natures seized, the consul shall procure, if possible, papers for the pur-
pose of comparison, which shall be signed by his initials and added to
the documents of the prosecution, after having been brought before the
accused in the form prescribed by the preceding article and with the
same questions.
Proof of these writings and signatures shall be made before the judges
24
JUDICIAL EXTRATERRITORIAL RIGHTS.
who shall give final judgment, as well upon the papers above mentioned
as upon all others which may be produced before judgment.
14. The writings and signatures seized by the consul shall also be
shown, at the time of the examination, to the witnesses, who shall be
called on to state any knowledge they may have thereof.
15. In case of forgery, the consul shall couform to the three preceding
articles, but these may be supplemented as much as necessary by other
formalities to be preseribed by the judges in the case.
16. All articles tending to prove the criminality of the accused shall be
deposited at the chancery, and a report shall be drawn up of this de-
posit, which shall be signed by the consul and the clerk.
The articles shall be exhibited to the accused at the time of his ex-
amination, and to the witnesses at the time of their examination; both
the accused and the witnesses shall be asked to declare whether they
identify them.
17. In the prosecution of an inquiry not provided for in Article 6
above, the consul shall issue an order fixing the day and hour on which
the witnesses shall present themselves before him.
In accordance with this order, French subjects named as witnesses,
shall be summoned by the officer discharging the duties of chancellor.
In the case of foreigners, the consul shall make requisitions upon the
foreign consuls, in accordance with the usage in the port, for the purpose
of obtaining an order compelling them to appear, and, in cases concern-
ing the subjects of powers in whose territory the consulates are estab-
lished, the consul shall conform for the purpose of procuring their ap-
pearance to the agreements and usages observed in the different con-
sulates.
18. Before giving his testimony, each witness shall be sworn to speak
the whole truth and nothing but the truth. The consul shall ask his
name, christian names, age, occupation, residence, whether he is a serv-
ant, relative, or connection of the party making the complaint, or of the
person who has suffered injury, or of the accused.
The question and the answer of the witness shall be noted.
When the religious belief of a witness prevents him from taking the
oath above prescribed, or from making any kind of affirmation, the
record shall state the fact, and he shall be examined without being
sworn.
19. Witnesses shall give their testimony orally and separate from
each other.
Each deposition shall be written in French by the clerk; it shall be
signed by the witness after being read to him, and after he declares that
he adheres to it, and by the consul and the clerk; if the witness cannot
or will not sign, the fact sball be noted.
20. The official reports of inquiry into a crime shall be numbered and
signed with his initials on each page, by the consul, and shall be closed
by an order which he shall give, either to proceed to a further exami-
nation or to remit the matter for hearing when the offense is a simple
violation of police regulations, or to proceed, in accordance with the
rules hereinafter laid down, to a verification of the evidence, and to the
confrontation of the witnesses and accused when there shall be evidence
of a crime punishable by a corporal or infamous punishment.
Nevertheless, the consul may, in any case when he shall deem it
proper, confront the witnesses and the accused.
21. If it is expedient, in accordance with the preceding article, to read
to the witnesses their depositions, verify them, and to confront the
JUDICIAL EXTRATERRITORIAL RIGHTS.
25
witnesses with the accused, the consul shall fix, in his order, the day and
hour on which the proceeding shall take place.
22. This order shall be made known to the accused three days before
the day fixed upon, and he shall be served with a copy of the informa-
tion. The accused shall be notified of the privilege which he has of
employing counsel at the confrontation; if he does not avail himself of
this privilege, counsel on his behalf may be named by the consul. This
counsel may confer freely with him.
23. The consul shall cause the witnesses to appear before him on the
day fixed, in the manner prescribed in Article 17.
He need not call witnesses who shall have declared, in the prelimi-
nary investigation, that they have no knowledge of the matter; he
shall, however, call them if the accused requires it.
French witnesses shall be bound, in all cases provided for by the fore-
going articles, to obey the citation. Those who fail to appear may be
condemned to a fine not exceeding one hundred francs. They shall be
cited anew; if they show legitimate excuses the consul may remit this
fine.
The consul shall always have the right to order, even on the first fail-
ure to appear, that the defaulters shall be arrested and compelled to
testify.
24. In order to verify the testimony a reading shall be made sepa-
rately and privately, to each witness, of his deposition, by the clerk, and
the witness shall declare whether he wishes to add or to retract anything,
and whether he adheres to it. The consul may, at the time of the veri-
fication of the evidence, question the witnesses in order to elucidate or
explain their depositions. The witnesses shall sign their verifications
after the reading, or shall declare that they do not know how to sign or
that they cannot do so. Each verification shall, furthermore, be signed
by the consul and the clerk. The record shall be numbered and signed
in initial on every page by the consul.
25. After the verification of the testimony, the witnesses shall be con-
fronted with the accused. For this purpose the consul shall cause the
latter to appear, in the presence of whom each witness shall again be
sworn to speak the whole truth and nothing but the truth.
26. The declaration of the witness shall be read to the accused; the
witness shall be asked to declare if the accused is indeed the person of
whom he has intended to speak.
If the accused or his counsel notice any contradiction in the testimony,
or any other circumstance which may benefit him, both may ask the
consul to question the witness on this point.
The accused and his counsel shall have the right to question the wit-
ness, through the consul, on all points which they deem necessary for
the elucidation of facts, or for the explanation of the testimony.
They shall not interrupt the witness in the course of his testimony.
The counsel for the accused cannot make answer for the latter, nor
suggest to him any statement or reply.
27. When a witness cannot present himself at the confrontation, his
place shall be supplied by the reading of his deposition. This reading
shall be made in the presence of the accused and his counsel, whose
observations shall be recorded in the official report.
28. The accused can, either personally or by his counsel, make ob-
jections to the witnesses. He is permitted to make objections in every
stage of the proceedings, as well before as after knowledge of the ac-
cusations.
If he shall make objections at the time of the confrontation, the
26
JUDICIAL EXTRATERRITORIAL RIGHTS.
witness shall be required to answer these objections, and mention shall
be made in the official report of what the accused and the witness shall
have said respectively on this subject.
29. If there are several accused persons, they shall also be confronted
with each other, after their testimony shall have been read to them sep-
arately, in the forms prescribed for the reading of testimony to wit-
nesses.
30. The confrontations shall be written down in a separate book, num-
bered and signed in initial on every page by the consul. Each confronta-
tion shall be signed respectively by the accused and the witness, after it
shall have been read to them by the clerk; if they cannot or will not
sign, mention shall be made of the cause of their refusal. Each con-
frontation shall likewise be signed by the consul and the clerk.
31. The accused shall, in all stages of the proceedings, have the right
to offer facts in his own justification, and the proof of these facts may
be admitted even when they have not been set forth either in the ex-
aminations or other instruments of the proceedings.
When they shall have been offered, the accused shall be called on to
name his witnesses ; mention shall be made of the whole matter in a
report, at the end of which the consul shall order, as of course, that the
witnesses shall be summoned, and by him heard on the day and hour
that he shall appoint, pursuant to the rules prescribed for inquiries.
32. In the inquiry, which shall take place pursuant to the preceding
article, the witnesses shall first be called upon to declare in regard to
the facts in justification set forth in the record; the consul may then
put such questions to the witnesses as he may deem necessary for dis-
covery of the truth.
33. Examinations, verifications of the testimony, and confrontations
in the case of witnesses who do not understand the French language,
shall be carried on by the aid of a sworn interpreter of the consulate
or any other interpreter who shall be appointed by the consul. In the
latter case, the consul shall cause the interpreter to swear to translate
faithfully; there shall be drawn up a report thereof, which shall be an-
nexed to the documents in the case. This oath shall serve for all pro-
ceedings in the same action which may require the services of the same
interpreter.
Examinations, verifications, and confrontations shall be signed by the
interpreter in every place where the witness shall have signed or de-
clared that he cannot.
In any case when the religious belief of an interpreter prevents his
taking the required oath, or making any other affirmation, the report
shall certify this fact.
34. In case of the flight or escape of the accused, the consul shall draw
up a report signed by himself and the clerk, stating that unavailing
search has been made, and that it has not been possible for him to se-
cure the accused; this report, annexed to the documents in the case,
shall take the place of every other formality to prove the contumacy.
35. The consul shall take possession of all the effects, valuable papers,
and documents belonging to the fugitive from justice, after an inventory
and description has been made thereof by the clerk.
36. The proceedings in contumacy shall be begun with all possible
expedition, by inquiries, by examination of witnesses, and by the ex-
hibition to the said witnesses of documents and other objects which may
serve to convict.
37. The preliminaries terminated, the case shall be submitted to the
consular tribunal.
t
JUDICIAL EXTRATERRITORIAL RIGHTS.
27
This tribunal shall be composed of the consul, or the person who shall
perform his duties, and two French subjects, chosen by him from among
the people of respectability residing in the jurisdiction of the consulate.
38. These two persons shall be named in advance for the whole year.
They may be reappointed.
In case of absence or disability, they may be temporarily replaced by
such other persons (notables) as the consul shall name, and mention shall
be made of the reasons for this substitution in the order or judgment of
the consular tribunal.
39. The two persons (notables) named by the consul shall also be
Sworn.
1
A report of the completion of that formality shall be drawn up in the
record book of legal instruments of the chancery.
40. In case it shall be impossible to compose the consular tribunal of
such persons (notables), the consul shall institute proceedings alone, fol-
lowing the rules hereinafter prescribed, upon condition of making note
of this impossibility in his orders and judgments.
41. The consular tribunal, composed either of the consul and the said
persons (notables), or of the consul alone, shall, in accordance with the
above articles, decide as follows:
If the act presents neither a violation of regulations, misdemeanor,
or crime, or if there shall be no charges of sufficient gravity against the
accused, the tribunal shall declare that the prosecution be dismissed.
If the tribunal is of opinion that the act is nothing but a simple vio-
lation of police regulations the accused shall be sent to a hearing to be
there judged pursuant to Title II hereafter.
In the two cases above-named the accused, if under arrest, shall be
set at liberty, and if he has furnished bail it shall be discharged.
42. If the judges consider that the act constitutes a misdemeanor,
and the accusations are sufficient to sustain it, the accused shall be re-
ferred to a hearing.
In this latter case, if the misdemeanor entails the penalty of imprison:
ment, the accused, if he is under arrest, shall be held so for the time
being, unless he be admitted to bail, according to the terms of Article 9.
If the accused is registered, as mentioned in Article 8, or if the mis-
demeanor does not entail the penalty of imprisonment, the accused shall
be set at liberty, upon condition of presenting himself on the day of the
hearing.
43. If the act entails a corporal or infamous punishment, and if the
charge is sufficiently established, the consular tribunal shall issue an
order of arrest against the accused, and the proceedings shall subse-
quently take place in accordance with the rules prescribed by Title III
hereinafter.
44. When the consular tribunal shall have declared that there is not
ground to continue prosecution, or when it shall have decided that an
act complained of as a crime or misdemeanor is a simple violation of
regulations, or finally, when it shall have decided that an act having
the elements of a crime is a minor offense (attribué a la police correction-
nelle), the party acting in his own name (partie civilē) shall have the
right to except to the order, upon condition of making the declaration
thereof at the chancery of the consulate, within three days, counting
from the service of the notice upon him of the order.
The party acting in his own name (partie civile) must notify the ac-
cused of his objections within the eight days following, and summon him
to produce before the tribunal such statement in his behalf as he shall
deem proper.
28
JUDICIAL EXTRATERRITORIAL RIGHTS.
These exceptious shall not prevent the accused from being set at
liberty if this has been ordered before the exceptions were offered by
the party acting in his own name (partie civile), or if pronounced after-
wards, without prejudice to the further execution of the order of arrest
which may be issued by the tribunal.
45. The right of making exceptions shall belong, in every case, to the
public prosecutor of the imperial court having cognizance of the orders
of the consular tribunal, in conformity with the terms of Title III. here-
after. His exception shall be declared in the manner and within the
period specified by Article 79 of this law.
TITLE II.-OF JUDGMENT IN THE CASE OF MINOR OFFENSES AND
MISDEMEANORS.
46. The consular court shall take cognizance of misdemeanors, either
by direct summons, or when the case has been referred to it in accord-
ance with Articles 20 and 42 above.
The consul shall decide alone in matters of simple police; he shall
take cognizance, either by direct summons, or when the case shall have
been referred to him in accordance with Articles 20 and 41. He shall
conform to Articles 47, 48, 49, 51, and 52 hereinafter.
47. The day of the hearing shall be fixed by order of the consul; there
shall be at least a period of three days between the summons and the
judgment when the accused sball reside in the place in which the con-
sulate is established. If he shall not reside there the order shall de:
clare, taking the distances of the places into consideration, the period
within which he shall appear.
48. The person summoned shall appear in person or by a specially
qualified attorney.
In matters relating to minor offenses, however, when the law shall
pronounce the penalty of imprisonment, the accused should present
himself in person, and, in other cases, the tribunal may order him to
appear.
49. The preliminary proceedings at the hearing shall take place in
the following order:
The official reports and statement of facts shall be read; the witnesses
for and against shall be sworn and heard; the objections offered shall
be decided upon; a reading shall take place of the written declarations
of those witnesses who, by reason of their living at a distance, or for
any other legitimate cause, cannot appear. Defaulting witnesses, not
included in the cases above, may be condemned and held personally
bound to appear conformably with Article 23. Every document or
object that may serve to convict or acquit the accused shall be exhibited
to the witnesses and the parties in the suit; the party acting in his own
name (partie civile) shall be heard; the accused or his counsel, as well
as the parties accountable in damages, shall offer their defense; reply
shall be allowed the party acting in his own behalf (partie civile); but
the accused, or his counsel, shall always speak last; judgment shall be
pronounced immediately, or, at latest, at a hearing which shall be fixed,
and which shall not be delayed more than eight days.
The judgment shall make mention of the fact that these formalities
have been observed; the reasons in the case shall be stated, and if a
condemnation is pronounced the terms of the law applicable to the case
shall be inserted.
If the accused is acquitted he shall be set at liberty immediately, or
his bail shall be discharged.
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JUDICIAL EXTRATERRITORIAL RIGHTS.
29
50. In case, after the preliminary procedure at the hearing, the act
imputed to the accused shall appear to have the elements of a crime,
the proceedings shall take place in the following manner:
If the accused has been directly summoned to the hearing, in con-
formity with Article 46, he shall be sent before the consul, who shall
proceed to inquiries, examinations, verifications, and confrontation in
the manner prescribed in Title I of this law.
If the accused has been arraigned at the hearing, in accordance with
an order under Article 20, he shall be sent before the same consul,
who shall proceed to such additional inquiry as may seem good to him,
and to the formalities of verification and confrontation.
Finally, if the accused has not been brought before the court until
after a full preliminary proceeding, the consular tribunal shall enter
judgment against him of arrest, and further proceedings shall take place
in accordance with the rules prescribed by Title III hereinafter.
In case, after the preliminary proceedings at the hearing, the act im-
puted to the accused shall be decided to be only a violation of police
regulations the consular tribunal shall pronounce judgment conformably
with Article 54 of the present law without appeal.
51. Condemnations by default, in matters involving minor offenses and
violations of police regulations, shall be considered void if, within eight
days of notice made thereof upon the condemned in person, at his dom-
icile, actual or elected, or even at his last residence, when he shall no
longer have an actual domicile or residence in the jurisdiction of the
consulate, be offers his objections to the execution of the judgment by
a declaration at the chancery of the consulate.
The tribunal can, however, taking into consideration the distance of
the last domicile and the greater or less facility of communication, extend,
by its judgment, this period ás shall appear to it proper.
In case of acquittal pronounced by the final judgment, the expenses
arising from the summons, the notice of judgment by default, and the
exceptions may be charged to the accused.
52. Registered French subjects cannot be refused admittance to the
place where the consular tribunal shall sit during the sessions, except
when the common law of France authorizes closed doors.
The consul shall have charge of the preservation of order at the sit-
tings of the court.
53. In the case of minor offenses the record of the hearing shall state
the names, Christian names, ages, callings, and residences of the wit-
nesses who shall have been heard; their oath to speak the whole truth
and nothing but the truth; their declarations stating whether they are
relatives, connections by marriage, or servants of the parties in the case,
and the objections which shall have been made to their admissibility; it
shall contain an abstract of their statements.
54. In matters of violations of police regulations, the consul shall give
judgment finally and without appeal.
If there is a civil party (partie civile), and if the demand for damages
exceeds one hundred and fifty francs, the consul shall remit this party
to a civil action, and shall nevertheless pass judgment on the offense.
55. In matters involving minor offenses matière correctionnelle), an
appeal may be taken froin
the judgment.
The appeals shall be carried to the imperial court at Aix.
The right of appeal shall belong to the accused and the persons ac-
countable in damages and to the public prosecutor of the imperial court
of Aix. It shall belong likewise to the civil party (partie civile), as re-
gards his civil interests alone.
30
JUDICIAL EXTRATERRITORIAL RIGHTS.
56. The declaration of appeal shall be made at the chancery of the
consulate by the appellant in person or by his attorney within ten days
after the judgment is pronounced, if adverse. During this period and
during the procedure on appeal, the execution of the judgment of con-
demnatiou shall be delayed.
No appeal can be taken by the defaulter from judgments by default.
Such judgments may be set aside by him only by proceedings in error
for cause shown.
57. The declaration of appeal should contain election of domicile in the
city of Aix, in default of which the notices to be made to the appellant
can be made at the office of the public prosecutor before the imperial
court of Aix, without any extension of time by reasou of distances.
The accused shall be notified within eight days of a declaration of
appeal by the civil party in the action, and shall be served with summons
to appear before the imperial court.
The appeal of the public prosecutor shall be declared in the forms
and within the periods provided by Article 79 hereinafter.
58. The procedure, the declaration of appeal, and the petition, if one
has been filed by the appellant, shall be immediately transmitted to the
public prosecutor of the imperial court of Aix. The condemned, if he
is under arrest, shall be sent on the first French ship returning to France,
and shall be taken to the jail of the said court.
59. If temporary liberty is requested on the ground of an appeal, the
bail shall be at least equal to the total amount of damages imposed by
the judgment of the lower court, including the special fine authorized
by the second paragraph of Article 75 of this law.
60. Immediately after the arrival of the documents in the case and
the condemned person, if under arrest, the appeal shall be heard in the
imperial court of Aix, sitting to judge appeals in cases involving fines
and imprisonment (chambre des appels de police correctionnelle.) The
case shall be advanced upon the docket.
61. On appeal by the civil party (partie civile), the original notice of
the declaration of appeal, containing citation, shall be annexed to the
documents, which should be transmitted to the court.
62. In all the cases above, the appeal shall be decided in accordance
with the forms prescribed by the code of criminal procedure. Never-
theless, the condemned person, not under arrest, or who has been allowed
to furnish bail, can be exempted from appearing in person at the hear-
ing, and may be represented by a specially authorized attorney.
63. When it shall appear to the court, in passing upon the appeal,
that the act on which the consular tribunal has passed judgment, as
a tribunal having cognizance of matters involving fines and impris-
onment (tribunal correctionnel) constitutes a crime, it shall proceed as
follows:
If the preliminary inquiry has been followed by the verification of
the testimony (récolement) and by confrontation, the court shall give
judgment as a court of accusation, and shall issue an order of arrest.
In all other cases it shall order a supplementary inquiry, and, for
this purpose, shall give the consul power to pronounce judgment as in
the preceding case, except that it shall not grant him any further pow-
ers when the procedure shall be completed.
TITLE III.OF ARRAIGNMENT.
64. When, in accordance with the terms of Article 43 or of Article 50,
the consular tribunal shall have declared the act to entail a corporal or
1
•
JUDICIAL EXTRATERRITORIAL RIGHTS.
31
infamous penalty, notice of the order of arrest shall be given immedi-
ately to the accused. The latter shall be sent by the first French ship
returning to France, and shall be sent, together with the record and
everything serving to prove criminality, to the public prosecutor of the
imperial court of Aix.
Within the shortest possible period, the public prosecutor shall make
his report to the court of accusation of the same tribunal, which shall
proceed in the manner prescribed by the code of criminal procedure.
65. In cases of forgery the court of accusation shall proceed to the
examinations prescribed by Articles 13 and 15 of this law.
66. If the court of accusation sees that the act has not been properly
defined and constitutes only a misdemeanor, it shall cancel the order
of arrest and send the accused and the record to the court of original
jurisdiction of Aix, which shall condemn to fine or imprisonment (statuera
correctionnellement), permitting appeal therefrom. The court shall re-
tain the accused under arrest, or order him to be set at liberty, con-
forinably with Article 42.
The tribunal having jurisdiction pursuant to this article shall proceed
in accordance with the provisions of the code of criminal procedure,
except as hereinafter provided.
The written procedure shall be read at the hearing; the witnesses, if
any shall be produced, shall be heard under oath.
The accused, if he has been set at liberty, shall have the right of be-
ing represented by a special attorney.
The tribunal shall have power to change the penalty of imprisonment
to a special fine, in accordance with the rules prescribed by Title V of
this law.
67. If an arraignment is ordered by the court, the decision thereon
and the bill of indictment shall be served on the accused, and the latter
shall be brought before the first chamber and the chamber of appeals
in matters of fines and imprisonment (police correctionnelle), sitting as
one court, of the imperial court of Aix, which shall give judgment in the
forms hereinafter laid down, and never with less than twelve judges
sitting
When the arraignment shall have been ordered by the chamber of
appeals in cases involving fines and imprisonment (police correctionelle)
in conformity with Article 63, that chamber shall be replaced, for the
purpose of judgment of the facts in the caso, by the chamber of arraign-
ments (celle des mises en accusation).
68. In case exceptions are offered to the order of the consular tribu-
nal by the civil party (partie civile), or by the public prosecutor, in ac-
cordance with the terms of Articles 44 and 45 of this law, the documents
in the case shall be transmitted, and the court of accusation shall pass
judgment as above. Nevertheless, if the court of accusation charges
the accused simply with a misdemeanor, it shall send him before the
consular tribunal.
TITLE IV.-OF THE JUDGMENT IN CASE OF CRIMES.
69. The accused shall undergo a preliminary examination before one
of the counsellors (conseillers) of the court, delegated by the presiding
judge; a copy of the record shall be given him at the same time; he
shall be asked to choose counsel; in case of not inaking this choice, a
counsel shall be appointed for him, and mention shall be made of the
whole matter in the examination.
70. The public prosecutor, the civil party (partie civile), and the ac-
32
JUDICIAL EXTRATERRITORIAL RIGHTS.
cused' shall have the right of causing witnesses to be summoned for the
day of the hearing. They can, however, avail themselves of this right
only in the case of those persons who shall be present on French terri-
tory.
The accused shall be notified of the names, occupation, and residence
of the witnesses summoned, at least twenty-four hours before the hear-
ing, by the public prosecutor or the civil party, and the public prosecutor
shall receive a similar notice from the accused.
71. Within eight days after the examination, and on the day named
for the judgment, the report shall be made on the case by one of the
counsellors; the record shall be read before the court sitting at a pub-
lic hearing, the accused and his counsel being present. The presiding
judge shall examine the accused. The witnesses, if they have been
called, in accordance with the preceding article, shall be next heard.
The accused, however, and the public prosecutor can object to the hear-
ing of a witness who shall not have been named or who shall not have
been clearly described in the notice.
The presiding judge may, also, in virtue of his discretionary power,
cause all persons to appear whose testimony he deems useful in the dis-
covery of the truth, and the court shall hear them.
The witnesses summoned and the witnesses called pursuant to the dis-
cretionary power shall take the oath prescribed by Article 18 of this
law.
72. The civil party, or his counsel, and the public prosecutor shall be
heard on motions and applications. The accused and his counsel shall
state their defense. Reply to this shall be permitted, but the accused
and his counsel shall always close.
The presiding judge, after having asked the accused whether he has
anything further to say in defense, shall state the issues and shall cause
them to be read by the clerk.
The court shall decide upon the objections made to this statement.
73. The issue shall be decided successively; the presiding judge shall
take the vote.
A decision, either against the accused, or on the extenuating circum-
stances, requires two-thirds of the votes, and in the calculation of these
two-thirds, fractions, if there are any, shall be counted in favor of the
accused.
The same vote shall be necessary for the infliction of every corporal
or infamous punishment.
The judgment shall be pronounced publicly; it shall contain the issues
which have been stated, the reasons for the decisions, and the text of the
law which shall have been applied.
It shall certify the existence of the majority above required.
If the judgment imposes a corporal or infamous punishment, it shall
be posted in the chanceries of consulates established in the sea-ports of
the Levant and the Barbary states.
74. If the accused is contumacious, the procedure shall take place as
provided in Articles 465 to 478, inclusive of the code of criminal pro-
cedure.
When, however, the accused shall be domiciled in the sea-ports of the
Levant or the Barbary states, notice of the order in contumacy shall
be given at his domicile, and also at the chancery of the consulate, where
it shall be posted:
TITLE V._OF PENALTIES.
75. Violations of police regulations, misdemeanors, and crimes com-
mitted by French subjects in the sea-ports of the Levant and the Bar-
JUDICIAL EXTRATERRITORIAL RIGHTS.
33
bary states shall be punished by the penalties provided in the laws of
France.
Yet, in affairs involving fines and imprisonment (matière correctionnelle)
and of minor offenses (simple police), after the judges shall have sen -
tenced to imprisonment, they can, by a provision which shall be inserted
in the sentence or judgment of condemnation, change this penalty to a
special fine, computed at the rate of ten francs or more for each day of
imprisonment pronounced.
This special fine shall be in addition to that which shall have been
incurred by the delinquent, in accordance with the terms of the ordi-
nary penal laws.
Violations of regulations made by consuls for the police of the ports
shall be punished by an imprisonment which shall not exceed five days,
and by a fine which shall not exceed fifteen francs. These tiro penal-
ties may be cumulative or separate.
TITLE VI.-GENERAL PROVISIONS.
76. Judgments of the imperial court, rendered pursuant to this
law, may be examined on appeal for the reasons and in accordance with
the distinctions set forth in Title III of Book 2 of the code of criminal
procedure.
77. If on appeal the judgment is reversed, the case shall be referred
to another imperial court, to be prosecutel and decided anew in the
forms prescribed by this law.
78. Consuls shall send to the minister of foreign affairs a list of orders
made under Articles 41, 42, 43, and of judgments which shall have been
zaile in matters involving fines and imprisonment (correctionnels), which
list shall be sent within one month, at latest, after these orders and
judgments shall have been made. The said list shall be transmitted by
the minister of foreign affairs to the minister of justice.
79. Under instructions which shall be sent him by the minister of jus-
tice, the public prosecutor of the imperial court of Aix shall have the
right to cause the documents in the case and the proceedings to be sent
to him.
When he shall exercise his right of offering objections or of appeal
pursuant to Articles 45 and 55, he must make declaration thereof at the
office of the clerk of the court.
In case of objection he shall notify the party of it, and notify him to
produce his memorial, if he deems it proper. In case of appeal, he sh:ll
cause the party to be cited.
The above declaration, notification, and citation shall be given within
a period of six months, reckoned from the date of the orders or judy.
ments, under penalty of forfeiture.
80. When there shall be occasion, pursuant to Articles 58 and 64 of
this law, to send a convict or an accused, and the documents relating to
the proceedings and conviction on the first French ship, captains shall
be held bound to comply with the requisitions of the consul under pen-
alty of a fine of from 500 francs to 2,000 francs, which fine shall be leviedl
by the consul, subject to appeal to the imperial court of Aix. Captains
can, further, be suspended from command by decree of the minister for
the navy
Captains shall not be held bound to take on board a number of
acccused greater than one-fifth of the number of their crew.
81. The expenses of justice incurred in the execution of this law in
the sea-ports of the Levant and the Barbary states and in France ,in
S. Mis. 89- -3
34
JUDICIAL EXTRATERRITORIAL RIGHTS.
wbich expenses shall be included the compensation due to captains for
the passage of the accused, shall be advanced by the state; fines and
other sums obtained in the administration of justice shall be paid into
the public treasury.
82. Articles 39 to 81, inclusive, of the edict of June, 1778, are hereby
repealed.
This law does not affect the provisions of the law of the 10th April,
1825, relating to the prosecution and judgment of the crime of piracy.
APPENDIX III.
[Translation of the French law of July 8, 1852. ]
LAW OF JULY 8, 1852, RELATIVE TO THE JURISDICTION OF FRENCH CON-
SULS IN CHINA, AND WITHIN THE DOMINIONS OF THE IMAUM OF
MUSCAT.
TITLE I.--CONSULAR JURISDICTION IN CHINA.
CHAPTER I.-CIVIL JURISDICTION.
ARTICLE 1.—Disputes in civil and commercial matters which may
arise in China between French citizens shall be decided by consular
courts according to such of the provisions of the edict of 1778 as are
still in force in ports of the Levant and the Barbary states, excepting
the provisions contained in the three following articles:
2. The decisions of consular courts shall be final in the following
cases:
1st. All suits in which the parties being subject to the jurisdiction of
these courts, and exercising their rights, shall have declared their desire
to be judged finally and without appeal.
2d. All personal suits, or suits relating to personal property, in which
the amount involved shall not exceed 3,000 francs.
3d. Cross-suits, even when the amounts therein involved, joined to
the principal suit, shall exceed 3,000 francs.
If the amount involved in one of the principal or cross-suits shall ex-
ceed the aforesaid limits, the decision of the court upon them all shall
be subject to appeal. Nevertherless, decision shall be rendered subject
to appeal, in suits for damages, when they shall be based exclusively
upon the principal suit itself.
3. The appeal from the decisions rendered subject to appeal by the
consular courts shall be taken before the court of appeals at Pondi-
cherry. That court shall proceed according to the laws and ordinances
governing the administration of justice in the French East Indian
colonies.
4. Appeals against the final decisions rendered by the consular courts
shall be allowable to the parties only in case those courts have exceeded
their powers.
CHAPTER II.-CRIMINAL JURISDICTION.
5. Disputes between French citizens and Chinese subjects shall be
settled in accordance with the provisions of Article 25 of the treaty of
September 24, 1844.
6. The law of May 28, 1836, in relation to infractions, misdemeanors,
and crimes committed by French citizens in the ports of the Levant
JUDICIAL EXTRATERRITORIAL RIGHTS.
35
and the Barbary States, shall be applicable to infractions, misdemean-
ors, and crimes committed by French citizens in China, with the modi-
fications resulting from this chapter.
7. Decisions by default in matters relating to misdemeanors shall be
open to appeal, after the delays of the opposition.
8. The powers conferred by the law of 1836 upon the court of appeals
and the court of first instance of Aix, shall belong to the court of appeals
and to the court of first instance of Pondicherry, which shall proceed and
decide, as the case may be, according to the laws and ordinances con-
cerning the organization of the judicial system and the administration
of justice in the French East Indian colonies, the provisions of Articles
62 (section 2), 66 (section 3 and following), and 68 of the aforesaid law
of May 28, 1836, being, however, observed.
9. In case of contumacy, notice of the ordinance relative to contumacy
shall be given both at the domicile of the accused and at the office of
the consul, in which said ordinance shall be posted up.
10. Only persons within the territory of Pondicherry shall be sum-
moned as witnesses before the court or tribunal of Pondicherry,
11. Accused and condemned persons who, in the cases provided for
by Articles 58 and 64 of the law of May 28, 1836, are to be removed to
Pondicherry, may, in the absence of French vessels, or in case captains
may refuse to take them on board in virtue of paragraph 2 of Article
80 of the said law, be shipped on board of foreign vessels under the
care of the consul. In the case of a misdemeanor, the accused, if he
shall request not to be removed, shall be permitted to remain at the
place where he is confined. In criminal cases the same privilege may
be granted to the accused, at his request, by the consul. Nevertheless,
the attorney-general and the court may always order the removal of
the accused.
12. Consuls, independently of the extract from their orders and de.
cisions which they are required, by Article 78 of the law of May 28,
1836, to address to the minister of foreign affairs, shall send, directly, a
similar extract to the attorney-general attached to the court of appeals
of Pondicherry, who may require the transmission of the documents and
proceedings.
TITLE II.-CONSULAR JURISDICTION WITHIN THE DOMINIONS OF
THE IMAUM OF MUSCAT.
13. The provisions of Articles 1, 2, 3, and 4 of this law shall be ap-
plicable to the consulates of France within the dominions of the Imaum
of Muscat. Nevertheless, jurisdiction without appeal of consular courts,
in the cases provided for by paragraphs 3, 4, and 5, Article 2, shall be
limited to cases in which the amount involver does not exceed 1,500
francs. The court of appeals of the island of Réunion shall discharge,
for these consulates, the functions declared by the said articles to belong
to the court of appeals of Pondicherry.
14. The provisions of Chapter 2 of the present law shall likewise be
applicable to infractions, misdemeanors, and crimes committed by French
citizens in the dominions of the Imaúm of Muscat. The powers con-
.ferred by the foregoing provisions upon the judicial authorities of Pon-
dicherry shall be exercised by those of the island of Réunion and of the
tribunal of Saint-Denis according to the rules of their organization.
None but persons who shall be in the island of Réunion shall be sum-
moped as witnesses.
15. Disputes between the subjects of the Imaum of Muscat and French
36
JUDICIAL EXTRATERRITORIAL RIGHTS.
citizens, of which the consuls of France are to take cognizance, accord-
ing to Article 6, of the treaty of November 17, 1844, shall be decided
in accordance with the provisions of Articles 1, 2, 3, and 4 of this law.
TITLE III.-OF THE EXERCISE OF THE RIGHT OF HIGH POLICE.
16. The consuls of France in China andin the dominions of the Imaum
of Muscat shall be invested with the right of high police, which is con-
ferred upon the consuls of France in the ports of the Levant by Articles
82 and 83 of the edict of 1778.
17. In case of urgency, and if it shall be absolutely impossible to send
back directly to France a French citizen who has been expelled in vir-
tue of this right, such French citizen may be placed on board of a French
or foreign vessel, to be sent, according to circumstances, to one of the
French colonies in the East Indies or in Oceanica, or to some point occu-
pied as a French naval station.
TITLE IV.-GENERAL PROVISIONS.
18. The functions provided as belonging to consuls by the foregoing
articles shall be discharged at Canton or Macao by such officer of the
diplomatic mission in China as may be designated by the President of
the Republic. In case the consulates shall be vacant, or the consuls
absent or prevented from acting, in China or in the dominions of the
Imaum of Muscat, the officers or other persons who shall be called to
represent or take the place of the consuls shall discharge the functions
which are declared to belong to the latter by the present law.
APPENDIX IV.
STATUTE OF GREAT BRITAIN, 6 AND 7 VICTORIA, CHAP. XCIV.
6 and 7 Victoriæ, cap. xciv.
AN ACT to remove doubts as to the exercise of power and jnrigrliction by Her Maj-
esty within divers countries and places out of Her Majesty's dominions, and to run-
der the same more effectual. [24th August, 1843.]
“Whereas, by treaty, capitulation, grant, usage, sufferance, and other
lawful means, Her Majesty hath power and jurisdiction within divers
countries and places out of Her Majesty's dominions: And, whereas,
doubts have arisen how far the exercise of such power and jurisdiction
is controlled by and dependent on the laws and customs of this realm,
and it is expedient that such doubts should be removed :")
Be it therefore enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords spiritual and temporal, and Commons in
this present Parliament assembled, and by the authority of the same, That
it is and shall be lawful for Her Majesty to hold, exercise, and enjoy
any power or jurisdiction which Her Majesty now hath or may at any
time hereafter have within any country or place out of Her Majesty's
dominions, in the same and as ample a manner as if Her Majesty had
acquired such power or jurisdiction by the cession or conquest of terri-
tory,
II. And be it enacted, That every act, matter and thing which may at
any time be done, in pursuance of any such power or jurisdiction of Her
JUDICIAL EXTRATERRITORIAL RIGHTS.
37
said;
Majesty in any country or place out of Her Majesty's dominions, shall,
in all courts ecclesiastical and temporal and elsewhere within Her Maj-
esty's dominions, be and be deemed and adjudged to be, in all cases
aud to all intents and purposes whatsoever, as valid and effectual as
though the same bad been done according to the local law then in force
within such country or place.
III. And be it enacted, That if in any suit or other proceedings, whether
civil or criminal, in any court ecclesiastical or temporal within Her
Majesty's dominions, any issue or question of law or of fact shall arise
for the due determination whereof it shall, in the opinion of the judge
or judges of such court, be necessary to produce evidence of the exist-
ence of any such power or jurisdiction as aforesaid, or of the extent
thereof, it shall be lawful for the judge or judges of any such court,
and he or they are hereby authorized to transmit, under bis or their
hand and seal or hands and seals, to one of Her Majesty's principal
secretaries of state, questions by him or them properly framed respect-
ing such of the matters aforesaid as it may be necessary to ascertain in
order to the due determination of any such issue or question as afore-
and such secretary of state is hereby empowered and requireil,
within a reasonable time in that behalf, to cause proper and sufficient
allswers to be returned to all such questions, and to be directed to the
said judge or judges, or their successors, and such answers shall, upon
production thereof, be final and conclusive evidence, in such suit or other
proceedings, of the several matters therein contained and required to
be ascertained thereby.
IV. "And whereas it may in certain cases be expedient that crimes
aud offenses committed within such countries or places as aforesaid
should be inquired of, tried, determined, and punished within Her
Majesty's dominions;" Be it enacted, That it shall and may be lawful for
any person having authority derived from Her Majesty in that behalf,
by warrant under his hand and seal, to cause any person charged withi
the commission of any crime or offense the cognizance whereof inay at
any time appertain to any judge, magistrate, or other officer of Her
Majesty within any such country or place as aforesaid, to be sent for
trial to any British colony which Her Majesty may by any order or
orders in council from time to time appoint in that behalf; and upon the
arrival of such person within such colony it shall and may be lawful for
the supreme court exercising criminal jurisdiction within the same to
cause such person to be kept in safe and proper custody, and, so soon as
conveniently may be, to inquire of, try, and determine such crime or
offense, and upon conviction of the person so charged as aforesaid to
correct and punish him according to the laws in force in that behalf
within such colony, in the same manner as if the said crime or offense
had been committed within the jurisdiction of such supreme court:
Provided always, That before any such person shall be sent for trial to
any such colony as aforesaid it shall be lawful for him to tender for
examination to the judge, magistrate, or other officer of Her Majesty to
whom the cognizance of the crime or offense with which he is charged
may appertain, within the country or place where the same may be al-
leged to have been committed, any competent witness or witnesses, the
evidence of whom he may deem material for his defense, and whom he
may allege himself to be unable to produce at his trial in the said colony;
and the said judge, magistrate, or other officer sball thereupon proceed
in the examination and cross-examination of such witness or witnesses in
the same manner as though the same had been tendered at a trial before
such judge, magistrate, or other officer, and shall cause the evidence so
38
JUDICIAL EXTRATERRITORIAL RIGHTS.
taken to be reduced into writing, and shall transmit a copy of such evidence
tothe supreme court before which the trial of such person is to take place,
together with a certificate under his hand and seal of the correctness of
such copy; and thereupon it shall be lawful for the said supreme court,
and it is hereby required, to allow so much of the evidence so taken as
aforesaid as would have been admissible according to the law and practice
of thesaid supreme court, bad the said witness or witnesses been produced
and examined at the trial before the said court, to be read and received
as legal evidence at such trial: Provided also, That if it shall be made
to appear at such trial that the laws by which the person charged with
any criminal act would have been tried had his trial taken place before a
judge, magistrate, or other officer of Her Majesty in the country or place
in which such act may be alleged to have been committed, vary from or
are inconsistent witb the laws in force within such colony, in respect
either of the criminality of the act charged, or of the nature or degree
of the alleged crime or offense, or of the punishment to be awarded for
the same, such supreme court is hereby empowered and required to admit
and give effect to the laws by which such person would have been so
tried as aforesaid, so far as but not further or otherwise than the same
relate to the criminality of such act, or to the nature or degree of such
crime or offense, or to the punishment thereof: Provided also, That
nothing herein contained sball be construed to alter or repeal any law,
statute, or usage by virtue of which any crime or offense committed out
of Her Majesty's dominions might, at the time of the passing of this
act, be inquired of, tried, determined, and punished within Her Majesty's
dominions, or any part thereof, but the same shall remain in full force
and effect, anything herein contained to the contrary notwithstanding.
V. "And whereas it may likewise in certain cases be expedient that
the sentences passed within such countries and places as aforesaid at
the trial of crimes and offenses within the same should be carried into
effect within Her Majesty's dominions;” Be it enacted, That if any
offender shall have been sentenced to suffer death or imprisonment for or
in respect of any crime or offense of which such offender shall have been
lawfully convicted before any judge, magistrate, or other officer of Her
Majesty within any such country or place as aforesaid, it shall be law-
ful for any person having authority derived from Her Majesty in that
behalf, by warrant under his hand and seal; to cause such offender to be
sent to any British colony which Her Majesty may by any order or orders
in council from time to time appoint in that behalf, in order that the sen-
tence so passed upon such offender may be carried into effect within the
same; and the magistrates, jailers, and other officers to whom it may
appertain to give effect to any sentence passed by the supreme court
exercising oriminal jurisdiction within such colony are hereby empow-
ered and required to do all acts and things necessary to carry into effect
the sentence so passed upon such offender, in the same manner as though
the same bad been passed by such supreme court.
VI. And be it enacted, That if any offender shall have been ordered
or sentenced to be transported beyond the seas by any judge, magis-
trate, or other officer of Her Majesty within any such country or place
as aforesaid, or, having been adjudged to suffer death, shall have re-
ceived Her Majesty's most gracious pardon upon condition of transpor-
tation beyond the seas, it shall be lawful for any person having authority
derived from Her Majesty in that behalf to cause such offender to be
sent to any place beyond seas to which convicts may at any time be
lawfully transported from any part of Her Majesty's dominions, and, if
there shall be no convenient means of transporting such offender with-
JUDICIAL EXTRATERRITORIAL RIGHTS.
39
out bringing him to England, to cause such offender to be brought to
England in order to be transported, and to be imprisoned in any place
of confinement provided under the authority of any law or statute relat-
ing to the transportation of offenders convicted in England, until such
offender shall be transported or shall become entitled to his liberty; and
as soon as any such offender shall have arrived at the place to which
he may be transported, or, if brought to England, shall have been there
imprisoned, as aforesaid, all the provisions, rules, regulations, anthori-
ties, powers, penalties, matters, and things concerning the safe custody,
confinement, treatment, and transportation of any offender convicterí
in Great Britain shall extend and be construed to extend to such of-
fender as fully and effectually, to all intents and purposes, as if such
offender had been convicted and sentenced at any session of jail delir-
ery holden for any county in England.
VII. And be it enacted, That if any suit or action shall be brought in
any court within Her Majesty's dominions against any person or per-
sons for anything done in pursuance of any such power or jurisdiction
of Her Majesty as aforesaid or of this act, then and in every such case
such action or suit shall be commenced or prosecuted within six months
after the fact committed, and not afterwards, except where the cause of
action shall have arisen out of Her Majesty's dominions, and then within
six months after the plaintiff or plaintiffs and defendapt or defendants
shall have been within the jurisdiction of the court in which the same
may be brought; and the same and every such action or suit shall be
brought in the 'county or place where the cause of action shall have
arisen, and not. elsewhere, except where the cause of action shall hare
arisen out of Her Majesty's dominions; and the defendant or defendants
shall be entitled to the like notice, and shall have the like privilege of ten-
dering amends to the plaintiff or plaintiffs, or their agent or attorney, as
is provided in actions brought against any justice of the peace for acts
done in the execution of his office by an act passed in the twenty-fourth
year of the reign of King George the Second, intituled An act for the
rendering justices of the peace more safe in the execution of their office, and
for indemnifying constables and others acting in obedience to their warrants;
and the defendant or defendants in every such action or suit may pleacz
the general issue, and give the special matter in evidence; and if the
matter or thing complained of shall appear to have been done under
the authority and in execution of any such power or jurisdiction of Her
Majesty as aforesaid or of this act, or if any such action or suit shall be
brought after the time limited for bringing the same, or be brought and
laid in any other county or place than the same ought to have been
brought or laid in as aforesaid, then the jury shall find for the defend-
ant or defendants; and if the plaintiff or plaintiffs shall become non-
suit, or discontinue any action after the defendant or defendants shall
have appeared, or if a verdict shall pass against the plaintiff or plain-
tiffs, or if upon demurrer judgment shall be taken against the plaintiff
or plaintiffs, the defendant or defendants shall and may recover treble
costs, and have the like remedy for recovery thereof as any defendant
or defendants hath or have in any cases of law.
VIII. And be it enacted, That from and after the first day of October
in the year one thousand eight hundred and forty-four so much of
an act. passed in the sixth year of His late Majesty King George the
Fourth, intituled An act to repeal certain acts relating to the governor and
company of merchants of England, trading to the Levant Seas, and the du-
ties payable to them; and to authorize the transfer and disposal of the pos-
sessions and property of the said governor and company for the public ser-
40
JUDICIAL EXTRATERRITORIAL RIGHTS.
vice, as provides, “that from and immediately after the enrolment of
any such deed or instrument as therein:mentioned all such rights and
duties of jurisdiction and anthority over His Majesty's subjects resort-
ing to the ports of the Levant, for the purposes of trade or otherwise, as
were lawfully exercised and performed, or which the letters patent or
acts by the said act recited, or any of them, authorized to be exercised
and performed, by any consul or other officers appointed by the said
company, or which such consuls or other officers lawfully exercised and
performed under and by virtue of any power or authority whatever,
should, from and after the enrolment of such deed or instrument as
aforesaid, be and become vested in and should be exercised and per-
formed by such consuls and other officers respectively as His Majesty
might be pleased to appoint for the protection of the trade of His
Majesty's subjects in the ports and places respectively mentioned in the
said letters patent and acts, or any or either of them;" and also that
from and after the passing of tbis act an act passed in the parliament
holden in the sixth and seventh years of His said late Majesty King
William the Fourth, intituled An act to enable His Majesty to make regn-
lations for the better defining aad establishing the powers and jurisdiction
of His Majesty's consuls in the Ottoman Empire, shall be and the same
are bereby repealed, save as to any matter or thing theretofore done
under the authority of the same respectively.
IX. And be it enacted, That this act may be amended or repealed by
any act to be passed during this session of parliament.
APPENDIX V.
[British order in council of November 30, 1864. British and Foreign State Papers, vol.
LIV, p. 865.]
BRITISH ORDER IN COUNCIL REVISING THE ORDERS IN COUNCIL OF
JANUARY 9, 1863, * AND NOVEMBER 17, 1863,4 RELATIVE TO THE POWER
AND JURISDICTION OF HER MAJESTY IN THE OTTOMAN DOMINIONS,#
NOVEMBER 30, 1864.
At the Court of Windsor, the 30th day of November, 1864.
Present, the Queen's most Excellent Majesty in council.
Whereas by the act of the session of Parliament of the 6th and 7th
years of Her Majesty's reign, cap. 94, “ to remove doubts as to the ex-
ercise of power and jurisdiction by Eler Majesty within divers countries
and places out of Her Majesty's dominions, and to render the same more
effectual," hereinafter called the Foreign Jurisdiction Act, it was enactel
(among other things) that it was and should be lawful for Her Majesty
to hold, exercise, and enjoy any power or jurisdiction which Her Majesty
then had or might at any time thereafter have within any country or
place ont of Her Majesty's dominions, in the same and as ample a man-
ner as if Her Majesty had acquired such power or jurisdiction by the
cession or couquest of territory:
And whereas Her Majesty has had, and now has, power and jurisdic-
tion in the dominions of the Sublime Ottomau Porte:
*Br. & For. State Papers, Vol. LIII, page 313.
+ Br. & For. State Papers, Vol. LIII, page 365.
I "London Gazette" of December 2, 1864.
Ø Br. & For. State Papers, Vol. XXXI, page 984.
JUDICIAL EXTRATERRITORIAL RIGETS.
41
And whereas Her Majesty was pleased, by and with the advice of
her privy council, on the 9th day of January, 1863, and the 17th day
of November, 1863, to make, by orders in council dated on those days
respectively, provision for the exercise of her power and jurisdiction
aforesaid:
And whereas it has seemed to Her Majesty, by and with the advice
of her privy council, to be expedient at the present time to revise the
provisions of the said orders, and to make further provisions for the
due exercise of Her Majesty's power and jurisdiction aforesaid, and
for the more regular and efficient administration of justice and the bet-
ter maintenance of order among all classes of Her Majesty's subjects
and of persons enjoying Her Majesty's protection resident in or re-
sorting to the dominions of the Sublime Ottoman Porte:
Now, therefore, Her Majesty, by virtue of the powers in this behalf
by the Foreigu Jurisdiction Act or otherwise in her vested, is pleased by
and with the advice of her privy council to order, and it is Lereby or-
dered, as follows:
I.-PRELIMINARY.
1. This order shall commence froin and after the 31st day of Decem-
ber, 1864.
2. The orders of the 9th day of January, 1863, and the 17th day of
November, 1863, are hereby repealed.
This repeal shall not affect the past operation of those orders, or
either of them, or any appointment made or thing done under them, or
either of them..
3. Pending proceedings shall be regulated by this order as far as the
nature and circumstauces of each case admit.
4. Iu this order the term “the Ottoman dominions” means the do-
minions of the Sublime Ottoman Porte; the term "native Indian sub-
ject of Her Majesty" means a native of India (as defined in the act of
parliament of 1858 "for the better government of India”), not being of
European descent; the term "month” means calendar month; words
importing the plural or the singular may be construed as referring to
one person or thing, or more than one person or thing, and words im-
porting the masculine as referring to females (as the case may require).
5. The provisions of this order relating to British subjects apply to
all subjects of Her Majesty, whether by birth or by naturalizatiou, and
also to all persons enjoying Her Majesty's protection in the Ottoman
dominions.
The provisions of this order relating to foreigners apply to subjects
of the Sublime Ottoman Porte and subjects or citizens of any other
power or state not being enemies of Her Majesty.
II.-GENERAL PROVISIONS RESPECTING HER MAJESTY'S JURISDIC-
TION.
6. All Her Majesty's jurisdiction exercisable in the Ottoman domin-
ions for the judicial hearing and determination of matters in difference
between British subjects, or between British subjects and foreigners,-
or for the administration or control of the property or persons of Brit-
ish subjects, or for the repression or punishment of crimes or offenses
committed by British subjects,ếor for the maintenance of order among
British subjects,—shall be exercised under and according to the provis-
ions of this order, and not otherwise.
7. Subject to the other provisions of this order the civil and criminal
42
JUDICIAL EXTRATERRITORIAL RIGHTS.
jurisdiction aforesaid shall, as far as circumstances admit, be exercised
upon the principles of and in conformity with the common law, the
rules of equity, the statute law, and other law, for the time being in
force in and for England, and with the powers vested in and pursuant
to the course of procedure and practice observed by and before courts
of justice and justices of the peace in England, according to their re-
spective jurisdictions and authorities.
8. Nothing in this order shall be deemed to deprive Her Majesty's
consular officers of the right to observe and to enforce the observance
of any reasonable custom obtaining within the Ottoman dominions, or
to deprive any person of the benefit thereof, except where this order
contains some express and specific provision incompatible with the ob-
servance of such custom.
9. Except as to offenses against the capitulations, articles of peace,
and treaties between Her Majesty and the Subliine Ottoman Porte, or
against any rules and regulation for the observance thereof, or for the
maintenance of order among British subjects in the Ottoman domin-
ions, made by or under the authority of Her Majesty, or against any of
the provisions of this order, or of any rule made under it.
No act done by a British subject in the Ottoman dominions, or on
board a British vessel within those dominions, which would not by a
court of justice having criminal jurisdiction in England be deemed a
crime or offense, rendering the person doing such act amenable to pun-
ishment in England, shall, in the exercise of criminal jurisdiction under
this order, be deemed a crime or offense, rendering the person doing
such act amenable to punishment.
III.--CONSTITUTION OF HER MAJESTY'S CONSULAR COURT.
I.-The supreme consular court at Constantinople.
10. There shall be a court styled “Her Britannic Majesty's Supreme
Consular Court for the Dominions of the Sublime Ottoman Porte."
11. The supreme consular court shall hold its ordinary sittings at
Constantinople, but may on emergency sit at any other place within
the district of the consulate-general of Constantinople, and may at any
time bold its ordinary sittings at any such place within the Ottoman
dominions as one of Her Majesty's principal secretaries of state ap-
proves.
12. There shall be one judge of the supreme consular court. Her
Majesty's consul-general at Constantinople for the time being shall be
the judge, but he shall be appointed to the office of judge by Her Maj-
esty by special warrant under her royal sign manual. He shall be, at
the time of his appointment, a member of the bar of England, Scotland,
or Ireland, of not less than seven years' standing, or a subject of Her
Majesty (by birth or naturalization) who has filled the office of legal
vice-consul in the Ottoman dominions or the office of law secretary to
the supreme consular court.
He may, in case of his absence from the district of the consulate-gen-
eral of Constantinople, either in the discharge of his duty or with per-
mission of one of Her Majesty's principal secretaries of state, or in case
of illness, appoint, by writing under his hand and seal, a fit person to be
his deputy, who shall have all the power and authority of judge.
During á vacancy in the office of judge, or on emergency, a fit person,
approved by one of Her Majesty's principal secretaries of state, may
JUDICIAL EXTRATERRITORIAL RIGHTS.
43
temporarily be and act as acting judge, with all the power and author-
ity of judge.
Notwithstanding anything in this order, Her Majesty may make an
appointment to the office of judge at any time after the passing of this
order; but any such appointment shall not take effect before the 1st day
of January, 1865.
13. There shall be attached to the court
(1.) One law secretary.
(2.) So many officers and clerks as one of Her Majesty's principal sec-
retaries of state from time to time thinks fit.
One of Her Majesty's principal secretaries of state may, from time to
time, temporarily attach to the court such persons holding appointments
as consuls or vice-consuls as he thinks fit.
14. The law secretary shall be appointed by Her Majesty. He shall hold
by special coinmission from Her Majesty the appointment of vice-consul.
He shall act as registrar of the court. He shall discharge such duties
in connection with the conduct of criminal prosecutions as the judge
from time to time directs. He shall bear and determine, in a summary
way, such criminal charges as may, under this order, be properly so
heard and determined, and as are specially referred to him by the judge.
Where a suit or proceeding of a civil nature, originally instituted in
the supreme consular court, relates to money, goods, or other property,
or any civil right or other matter at issue of a less amount or value than
£100 sterling, or is instituted for the recovery of damages of a less
amount than £100 sterling, the judge may refer such suit or proceeding
specially to the law secretary, to be heard and determined by him; but
in all such cases an appeal sball lie as of course to the judge.
In case of the absence or illness of the law secretary, or during a
vacancy in the office of law secretary, or during the temporary employ.
ment of the law secretary in any other capacity, the judge may, by writ-
ing under his hand and seal, appoint any fit person approved by one of
Her Majesty's principal secretaries of state to act temporarily as law
secretary. The person so appointed shall have all the power and au-
thority of law secretary.
Every consul or vice-consul temporarily attached to the court under
Article 13 shall discharge such duties in connection with the court as
the judge from time to time, with the approval of one of Her Majesty's
principal secretaries of state, directs; and for that purpose shall have
the like power and authority as the law secretary.
2.The provincial consular courts.
15. In addition to the supreme consular court, each of Her Majesty's
consuls-general, consuls, and vice-consuls (holding a commission as such
frow Her Majesty), resident in the Ottoman dominions (with such excep-
tions as one of Her Majesty's principal secretaries of state at any time
thinks fit to make), or any person acting temporarily, with the approval
of one of Her Majesty's principal secretaries of state, as such a consul-
general, consul, or vice-consul, shall, for and in his own consular district,
hold and form a court styled “Her Britannic Majesty's consular court
at [Smyrna, as the case may be)" hereafter in this order called a provin-
cial consular court.
IV.-JURIES, ASS!: SSORS.
16. Every male British subject resident in the Ottoman dominions,
being of the age of twenty-one years or upwards, being able to speak
44
JUDICIAL EXTRATERRITORIAL RIGHTS.
and read English, having or earning a gross income at the rate of not
less than £50 a year, not having been attainted of treason or felony, or
.convicted of any crime that is infamous (unless he has obtained a free
pardon), and not being under outlawry, shall be qualified to serve on a
jury.
17. All persons so qualified shall be liable so to serve, except the fol-
lowing:
Persons in Her Majesty's diplomatic, consular, or other civil service
in actual employment;
Officers, clerks, keepers of prisons, messengers, and other persons at-
tached to or in the service of any consular court;
Officers and others on full pay in Her Majesty's navy or army, or in
actual' employment in the service of any department connected there-
with;
Persons holding appointments in the civil service, and commissioned
officers in the naval or military service of the Sublime Ottoman Porte;
Clergymen and ministers in the actual discharge of professional
duties;
Advocates and attorneys in actual practice;
Physicians, surgeons, and apothecaries in actual practice;
and except persons disabled by mental or bodily infirmity.
18. On or before the 14th day of January in every year, each consular
court shall. make out a list of the persons so qualified and liable, resi-
dent within its district.
The list shall, on or before the 21st day of the same month, be affixed
in some conspicuous place in the court, and shall be there exhibited
until the 31st day of that month, with a notice annexed that ou a day
specified, not being sooner than the 7th or later than the 14th day of
the then next month, the court will hold a special sitting for the revision
of the list.
The court shall hold such special sitting accordingly, and at such sit-
ting, or at some adjournment thereof (of which public notice shall be
given), shall revise the list by striking out the name of any person ap-
pearing to be not qualified or not liable to serve, and by inserting the
.name of any person omitted and appearing to be so qualified and liable,
either on the application of the person omitted, or on such notice to him
as the court thinks fit to direct.
The list shall be finally revised and settled not later than the 21st day
of February in every year; and when settled shall be affixed in some
conspicuous place in the court, and be there exhibited during not less
than two months.
Such list, as settled, shall be brought into use in every year on the
1st day of March, and shall be used as the jury list of the court for the
months thén next ensuing.
19. Where, in pursuance of this order, a jury is required, the court
shall summon so many of the persons comprised in the jury list, not
fewer than 15, as seem requisite.
Any person failing to attend according to such summons shall be lia-
ble to such fine, of not more than £10 sterling, as the court thinks fit to
impose.
Any such fine shall not be levied until after the expiration of fourteen
days. The proper officer of the court shall forth with give to the person
fined notice in writing of the imposition of the fine, and require him
within six days after receipt of the notice to file an affidavit excusing
his non-attendance (if he desires to do so). The court shall consider
the affidavit, and may, if it seems proper, remit the fine.
JUDICIAL EXTRATERRITORIAL RIGHTS.
45
20. A jury shall consist of five jurors.
21. In civil and in criminal cases the like challenges shall be allowed as
in England, with this addition, that in civil cases each party may chal-
lenge three jurors peremptorily.
22. A jury shall be required to give an unanimous verdict.
23. Where there is a jury, all the proceedings at the trial shall be
conducted in English; evidence, if given in any other language, being
interpreted in the usual way.
24. Where a provincial consular court (not held before a resident legal
vice-consul) proceeds, in pursuance of this order, to bear and deterinine
any case, civil or criminal, with assessors, the court shall nominate and
summon as assessors not less than two and not more than four indiffer-
ent British subjects of good repute, resident in the district of the court.
Where, however, by reason of local circumstances, the court is able to
obtain the presence of one fit person only as assessor, the court may sit
with him alone as assessor, and where for like reasons it is not able to
obtain the presence of any fit person as assessor, it may sit without an
assessor; but in every such case the court shall record in the minutes
of proceedings its reasons for sitting with one assessor only, or without
an assessor.
23. An assessor shall not have voice or vote in the decision of the
court in any case, civil or criminal, but an assessor dissenting in a civil
case from any decision of the court, or in a criminal case from any deci-
sion of the court, or the conviction, or the amount of punishment
awarded, may record in the minutes of proceedings his dissent and the
grounds thereof, and an assessor dissenting shall be entitled to receive
gratis a certified copy of the minutes.
V.-JURISDICTION AND AUTHORITIES OF THE CONSULAR COURTS.
1.- In general.
26. All Her Majesty's jurisdiction, civil and criminal, exercisable in
the Ottoman dominions 'shall, for and within the district of the consul-
ate-general of Constantinople, be vested exclusively in the supreme
consular court as its ordinary original jurisdiction.
27. All Her Majesty's jurisdiction, civil and criminal, exercisable in
the Ottoman dominions beyond the district of the consulate-general of
Constantinople, and not under this order vested exclusively in the su-
preme consular court, shall, to the extent and in the manner provided
by this order, be vested in the provincial consular courts, each for and
within its own district.
28. The supreme consular court shall have, in all matters ciril and
criminal, an original jurisdiction concurrent with the jurisdiction of the
several provincial consular courts, such concurrent jurisdiction to be
exercised subject and according to the other provisions of this order.
29. The judge of the supreme consular court may visit, in a magis-
terial or judicial capacity, any provincial consular court, and there in-
quire of, or lear and determine, any case, civil or criminal, pending in
that court, or arising within its district, or may appoint the law secre-
tary of the supreme consular court to visit in the like capacity and for
the like purpose any provincial consular court, or may appoiut the resi-
dent legal vice-consul of any provincial consular court to visit in the
like capacity and for the like purpose any provincial consular court
where there is not a resident legal vice-consul.
30. A prorincial consular court may, of its own motion, or on the ap-
46
JUDICIAL EXTRATERRITORIAL RIGHTS.
plication of any person concerned, report to the supreme consular court
the pendency of any case, civil or criminal, which appears to the pro-
vincial consular court fit to be heard and determined by the supreme
consular court.
The supreme consular court shall thereupon direct in what mode and
where the case shall be heard and determined, and the same shall be so
heard and determined accordingly.
31. Every consular court shall, in the exercise of every part of its
respective jurisdiction, be a court of record.
32. Each provincial consular court shall execute any writ or order is-
suing from the supreme consular court, and take security from any per-
son named in any writ or order for his appearance, personally or by at-
torney, and in default of such security being given, or when specially
ordered by the supreme consular court so to do, send snch person to
Constantinople on board one of Her Majesty's vessels of war, or if there
is no such vessel available, then on board any British or other fit vessel.
The order of the supreme consular court shall be sufficient authority
to the commander or master of such vessel of war or other vessel to re-
ceive and detain such persou, and carry him to and deliver him up at
Constantinople according to the order.
33. The several consular courts shall be auxiliary to one another in
all particulars relative to the administration of justice, civil or criminal.
34. Each provincial consular court shall, every six months, furnish to
the supreme consular court a report of every case, civil and criminal,
brought before it, in such form as the judge of the supreme consular
court from time to time directs.
2.-In ciril matters.---Reconciliation and arbitration.
35. Every consular court and its officers shall, as far as there is proper
opportunity, promote reconciliation, and encourage aud facilitate the
settlement in an amicable way, and without recourse to litigation, of
matters in difference between persons over whom the court has jurisdic-
tion.
· 36. Erery consular court may promote reconciliation, and encourage
and facilitate the settlement, in an amicable way, of any suit or proceed-
ing pending before it.
37. A consular court may, with the consent of the parties, refer to ar-
bitration the final determination of any suit or proceeding pending before
it, or of all matters in difference between the parties, on such terms and
with such directions as to appointment of an arbitrator, and other things
as may seem fit, and may, if it thinks fit, take from the parties, or any
of thein, security to abide by the result of. the reference. In any such
case the award shall be final and conclusire.
On the application of any party, a decree of the court may be entered
in conformity with the award, and such decree shall not be open to any
appeal or rehearing whatever.
38. Every agreement for reference to arbitration, or submission to
arbitration by consent, between or by British subjects, may, on the ap-
plication of any party, be made a rule of the consular court having juris-
diction in the matter of the reference or submission, which court shall
thereupon have power and authority to enforce the agreement or sub-
mission and the award made thereunder, and to control and regulate
the proceedings, before and after the award, in such manuer and on
such terms as may be just.
JUDICIAL EXTRATERRITORIAL RIGHTS.
47
General authority of courts.
39. The supreme and every other consular court shall be a court of law
and of equity, and (subject to the other provisions of this order) shall have,
and may exercise, all jurisdiction, power, authority, legal, 'equitable, or
other, which any consul of Her Majesty by custom has, or may exercise,
in the Ottoman dominions.
Special authorities of courts.
40. The supreme and every other consular court shall be a court of
bankruptcy, and as such shall, as far as circumstances admit, have,
each for and within its own district, with respect to British subjects
and to their debtors and creditors, being either British subjects or for-
eigners submitting to the jurisdiction of the court, all such jurisdiction
as for the time being belongs to the court of bankruptcy and the county
courts in England, or to any other judicial authority having for the time
beiug jurisdiction in bankruptcy in England.
41. The supreme consular court shall be a court of vice-admiralty, and
as such shall, for and within the Ottoman dominions, and for vessels and
persous coming within those dominions, have all such jurisdiction as for
the time being ordinarily belongs to courts of vice-admiralty in Her
Majesty's possessions abroad.
Every provincial consular court held before a resident legal vice-con-
sul shall be a court of vice-admiralty, and as such shall, for its own dis-
trict, and for vessels and persons coming within that district, have the
like jurisdiction.
42. The supreme consular court shall, as far as circumstances admit,
bare in itself exclusively, for and within the dominions of the Sublimé
Ottoman Porte, with respect to British subjects, all such jurisdiction
relative to the custody and management of the persons and estates of
persons of unsound mind, as for the time being belongs to the lord cban-
cellor or other person or persons in England intrusted by virtue of Her
Majesty's sign manual with the care and commitment of the custody of
the persons and estates of persons found by inquisition in England
idiot, lunatic, or of unsound mind.
43. The supreme consular court shall be a court for matrimonial causes,
and as such shall, as far as circumstances admit, bave in itself exclu-
sively, for and within the Ottoman dominions, with respect to British
subjects, all such jurisdiction, except the jurisdiction relative to dissolu-
tion or pullity or jactitation of marriage, as for the time being belongs
to the court for divorce and matrimonial causes in England.
44. The supreme consular court shall be a court of probate, and as
such shall, as far as circumstances admit, have, for and within the
Ottoman dominions, with respect to the property of British subjects
having at the time of death their fixed places of abode within those
dominions, all such jurisdiction as for the time being belongs to Her
Majesty's court of probate in England.
A provincial consular court shall, however, also have power to grant
probate or administration where there is no contention respecting the
right to the grant, and it is proved on oath that the deceased had at
the time of his death lis fixed place of abode within the jurisdiction of
the particular court.
Probate or administration granted by a provincial consular court shall
have effect over all the property of the deceased within the Ottoman
dominions, and shall effectually discharge persons dealing with an ex-
48
JUDICIAL EXTRATERRITORIAL RIGHTS.
ecutor or administrator thereunder, notwithstanding that any defect
afterwards appears in the grant. Such a grant shall not be impeach-
able by reason only that the deceased had not at the time of his death
his fixed place of a bode within the particular jurisdiction.
45. From the death of a British subject, baving at the time of death
his fixed place of abode within the Ottoman dominions, intestate, until
administration granted, his personal property within those dominions
shall be vested in the judge of the supreme consular court as the per-
sonal property of an intestate in England is vested in the judge of Her
Majesty's court of probate there.
46. If any person other than one of Her Majesty's consular officers takes
possession of and in any manner administers any part of the personal
property of any person deceased without obtaining probate or adminis-
tration within three months after the death of the deceased, or within
one month after the termination of any suit or dispute respecting pro-
bate or administration (if there is any such which is not ended within
two months after the death of the deceased), he shall be liable to such
penalty not exceeding £100 sterling as the court having jurisdiction in
the matter of the property of the deceased thinks fit to impose.
:
Trial with a jury..
47. Where a suit instituted in the supreme consular court, or in a
provincialconsular court held before a resident legal vice-consul, relates
to money, goods, or other property, or any civil right or other matter at
issue, of the amount or value of £50 sterling or upwards, or is brought
for recovery of damages of the amount of £50 sterling or upwards, the
suit shall, on the demand of either party, be tried with a jury.
In any case (except where, according to the rules of the court, the
suit is to be heard and determined in a summary way), a suit so insti.
tuted may be tried with a jury, if the court, of its own motion or on the
application of either party, thinks fit so to order.
One of Her Majesty's principal secretaries of state may, by order
under bis hand, extend the present provision to any provincial consu-
lar court not held before a resident legal vice-consul where it appears
to bin a sufficient jury list can be obtained.
Trial with assessors.
48. Where a suit instituted in a prorincial consular court pot hell be-
fore a resident legal vice consul relates to money, goods, or other prop-
erty of a less amount or value than £300 sterling, or does not relate
to or involre, directly or indirectly, a question respecting any civil right
or other matter at issue of the amount or value of £300 sterling, or up-
wards, or is brought for recovery of damages of a less amount than £300
sterling, the court may hear and determine the case withont assessors.
In all other cases the court shall bear and determine the case witli
assessors.
3.-In criminal matters.
49. Every consular court shall hare authority to cause to be appre-
hended and brought before it any British subject being within the dis-
trict of the court and charged with having cominitted a crime or offense
within the Ottoman dominions, or on board a Britislı vessel within those
dominions, and to deal with the accused according to the jurisdiction of
the court and in comformity with the provisions of this order; or where
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
49
the crime and offense is triable, and is to be tried in England, to take
the preliminary examination, and to commit the accused for trial, and
cause or allow him to be taken to England.
50. Where a person charged with a crime or offense escapes or removes
from the consular district within which the crime or offense was com-
mitted and is found within another consular district, the consular court.
within the district of which he is found may proceed in the case to ex-
amination, trial, and punishment, or in a summary way (as the case
may require) in the same manner as if the crime or offense had been
coinmitted in its own district; or may, on the requisition or with the
consent of the court of the district within which the crime or offense:
was committed, send him in custody to that court, or require him to
give security for his surrender to that court, there to answer the charge
and be dealt with according to law.
Where any person is to be so sent in custody, a warrant shall be
issued by the court within the district of which he is found, and such
warrant shall be sufficient authority to any person to whom it is directed
to receive and detain the person therein named, and carry him to and
deliver him up to the court of the district within which the crime or
offense was committed according to the warrant.
51. Where a warrant or order of arrest is issued by a competent
authority in Malta for the apprehension of a British subject, a native of
Malta or of any of its dependencies, who is accused of having committed
a crime or offense within the jurisdiction of the authority issuing the
warrant or order, and who is, or is supposed to be, in the Ottoman
dominions, and the warrant or order is produced to a consular court, the
court may back the warrant or order, and the same, when so backed,
shall be sufficient authority to any person to whom the warrant or order
was originally directed, and also to any constable or any other officer
of the court by which it is backed, to apprehend the accused at any
place in the Ottoman dominions where the court by which the warrant
or order is backed has jurisdiction, and to carry him to and deliver him
up at Malta, according to the warrant or order.
52. Where any person is charged with the commission of a crime or
offense the cognizance whereof appertains to a consular court in the
Ottoman dominions, and it is expedient that the crime or offense be in-
quired of, tried, determined, and punished within Her Majesty's domin-
ions, the accused mar (under the Foreign Jurisdiction Act, section 4)
be sent for trial as follows, painely: With respect to native Indian sub-
jects of Her Majesty, to Bombay; and with respect to other British sub-
jects, to Malta.
The judge of the supreme consular court may, where it appears so
expedient, by warrant under his hand and seal and the seal of the su..
preme consular court, cause the accused to be sent for trial to Bombay.
or to Malta (as the case may require) accordingly.
Such warrant shall be sufficient authority to any person to whom it
is directed to receive and detain the person therein named, and carry
him to and deliver him up at Bombay or at Malta (as the case may be),
according to the warrant.
Where any person is to be so sent to Bombay or to Malta, the consu-
lar court before which he is charged shall take the preliminary exami-
nation, and shall bind over such of the proper witnesses as are British.
subjects in their own recognizances to appear and give evidence on the
trial.
53. A consular court may promote reconciliation, and encourage and
facilitate the settlement in an amicable way, of proceedings for assaulty
S. Mis. 89. 1
50
JUDICIAL EXTRATERRITORIAL RIGHTS.“
or any other offense not amounting to felony and being of a private or
personal character, on terms of payment of compensation, or other terms
that may seem reasonable or expedient, and may thereupon order the
proceedings to be stayed.
54. All crimes which in England are capital sliall be tried by the
judge of the supreme consular.court, with a jury.
Other crimes and offenses above the degree of misdemeanor, tried be-
fore the judge or law secretary of the supreme consular court, and not
heard and determined in a summary ray, shall be tried with a jury.
Any crime or offense tried before the judge or law secretary of the
supreme consular court may be tried with a jury where the judge or, la w
secretary so directs.
Subject to the foregoing provisions, such classes of criminal cases
within the original jurisdiction (ordinary or concurrent) of the supreme
consular court as the judge, having regard to the law and practice ex-
isting in England, from time to time directs, shall be heard and deter-
mined in a summary way.
55. The supreme consular court may impose the punishment of im-
prisonment for ang term not exceeding twenty years, with or without
hard labor, and with or withont a fine not exceeding £500 sterling, or
the punishment of a fine alone not exceeding £500 sterling.
56. Where, any person is convicted of murder, the proper officer of the
court, under the direction of the judge, shall; in open court, require the
offender to state if he has anything to say why judgment of death
should not be recorded against him. If such offender does not allege
anything that would be sufficient in law to prevent such judgment if
the offense had been committed and the trial had been 'had in England,
the court may order such judgment to be entered on record.
Therenpon the proper officer sball enter judgment of death on record
against such offender, as if judgment of death had been actually pro-
nounced on him in open court bò the court.
The judge of the supreme cousular court shall forthwith send a report
of every such judgment, with a copy of the minutes of proceedings and
notes of evidence, and any observations he thinks fit to make, to one of
Her Majesty's principal secretaries of state, for his direction as to the
punishment to be actually imposed, such actual punishment not to ex-
ceed the measure of imprisonment and fine mentioned in Article LV.
57. Where a provincial consular court is held before a resident legal
vice-consul; crimes and offenses above the degree of misdemeanor tried
before the court, and not heard and determined in a summary way, shall
be tried with a jury.
Any crime or offense may be tried with a jury where the court so
directs:
Subject to the foregoing provisions, such classes of criminal cases as
the judge of the supreme consular court, with the advice and assist-
ance of the resident legal vice-consul, having regard to the law and
practice existing in England, from time to time directs, shall be heard
and determined in a summary way.
58. A provincial consular court held before a resident legal vice-con-
a -
sul may impose the punishment of imprisonment for any term not ex-
ceeding two years, with or without hard labor, and with or without a
fine not exceeding £100 sterling, or the punishment of a fine alone not
exceeding £100 sterling.
59. Where the crime or offense with which any person is charged be-
fore a provincial consular court not held before a resident legal vice-
consul is. any crime or offense other than assault endangering life, cut-
>
JUDICIAL EXTRATERRITORIAL RIGHTS.
51
1
ting, maiming, arson, or housebreaking, and appears to the court to be
such that, if proved, it would be adequately punished by imprisonment,
with or without hard labor, for not more than three months, or by a fine
of not more than £25 sterling, the court shall hear and determine the
case in a summary way, and without assessors.
In other cases the courts shall hear and determine the case on indict-
ment, and with assessors.
60. A provincial consular court not held before a resident legal vice-
consul may impose the punishinent of imprisonment for any term not
exceeding twelve months, with or without hard labor, and with or with-
out a fine of £50 sterling, or the punishment of a fine alone-not exceed-
ing £50 sterling.
61. Where the crime or offense with which any person is charged be-
fore a provincial consular court appears to the court to be such that, if
proved, it would not be adequately punished by such punishment as
the court has power to impose, and the accused is not to be sent for trial
to England, Bombay, or Malta, the court shall reserve the case to be
heard and determined by or under the special authority of the supreme
consular court.
The provincial consular court shall take the depositions, and forth with
send them, with a minute of other evidence, if any, and a report on the
case, to the supreme consular court.
The supreme cousular court shall direct in what mode and where the
case shalī be heard and determined, and the same shall be so heard and
determined accordingly.
62. The supreme and every other consular court, in imposing punish-
ments, shall have regard, as far as circumstances admit, and subject to .
the other provisions of this order, to the punishments imposed by the
law of England in like cases.
63. A consular court may order any person convicted before it of any
crime or offense to pay all or any part of the expenses of his trial and
imprisonment or other punishment.
Where it appears to the court that a charge is malicious, or, frivolous
and vexatious, the court may order all or any part of the expenses of
the prosecution to be paid by the prosecutor.
64. Where the circumstances of the case make it just or expedient, the
judge of the supreme consular court may report to one of Her Majesty's
principal secretaries of state, recommending a mitigation or remission
of any punishment awarded by the supreme or any other consular court;
and on such recommendation any such punishment may be mitigated or
remitted.
But no such recommendation shall be made with respect to any pun-
ishment awarded by a provincial consular court except on the recom-
mendation of that court, or on the dissent of the assessors or assessor,
if any, from the conviction or from the amount of punishment awarded.
65. The judge of the supreme consular court may, where it seems ex-
pedient, by warrant under his hand and the seal of the supreme con-
sular court, cause any offender convicted before any cousular court, and
sentenced to imprisonment, to be sent to and imprisoned at any such
place in the Ottoman dominions as one of Her Majesty's principal sec-
retaries of state from time to time approves.
Such warrant shall be sufficient authority to any person to whom itis,
directed to receive and detain the person therein named, and carry him
to and deliver him up at such place, according to the warrant.
66. Where any offender convicted before a consular court in the Otto--
man dominions is sentenced to suffer imprisonment in respect of the
52
JUDICIAL EXTRATERRITORIAL RIGHTS.
crime or offense of which he is convicted, and it is expedient that the
sentence be carriel into effect within Her Majesty's dominions, the of-
fender may (under the Foreign Jurisdiction Act, section 5) be sent for
imprisonment as follows, namely: With respect to native Indian subjects
of Her Majesty, to Bombay; and with respect to other British subjects,
to Malta.
The judge of the supreme consular court may, where it appears so
expedieut, by warrant under his hand and seal and the seal of the
supreme cousular court, cause such offender to be sent to Bombay or to
Malta (as the case may require), in order that the sentence passed upon:
him may be there carried into effect accordingly.
Such warrant shall be sufficient authority to any person to whom it
is directed to receive and him detain the person therein named, and
carry him to and deliver him up at Bombay or at Malta (as the case may
be), according to the warrant.
67. The supreme consular court shall, wheu required by one of Her
Majesty's principal secretaries of state, send to the secretary of state a re-
port of the sentence passed by the judge or lawr secretary of the court
in any case not heard and determined in a summary way,
of the minutes of proceedings and notes of evidence, and any observa-
tions the court thinks fit to make.
Every provincial consular court shall forth with send to the supreme
consular court a report of the sentence passed by it in every case not
heard and determined in a summary way, with a copy of the minutes of
proceedings and notes of evidence, and any observation the court tbinks
fit to make. The supreme consular court shall, when required by one of
Her Majesty's principal secretaries of state, transmit the same, with any
observations the court thinks fit to make, to the secretary of state.
with a copy
VI.DEPORTATION OF OFFENDERS.
68. (i.) Where it is shown, on oath, to the satisfaction of a consular
court, that there is reasonable ground to apprehend that any British
subject in the Ottoman dominions is about to commit a breach of the
public peace, or that the acts or conduct of any such British subject
are or is likely to produce or excite to a breach of the public peace, the
court may cause him to be brought before it, and require him to give
.security to the satisfaction of the court to keep the peace, or for his future
good behavior, as the case may require.
(ii.) Where any British subject. is convicted of any crime or offense
before a consular court, or before a court in the sentence of which one
of Her Majesty's consular officers concurs, the consular court for the
district in which he happens to be may require him to give security to the
satisfaction of court for his future good behavior.
In either of these cases, if the person required to give security fails
to do so, the court may order that he be deported from the Ottoman do-
minions to such places as the court directs.
The court shall not, however, without the consent of the person to be .
deported, direct the deportation of a native Indian subject of Her Majesty
to any place other than Bombay, or of a native of Malta or any of its
dependencies to any place other than Malta, or of a native of Gibral-
tar to any place other than Gibraltar, or of a native of any part of Her
Majesty's dominions other than Malta, its dependencies, or Gibraltar
(the person to be deported not being a native Indian subject of Her
Majesty) to any place other than England.
A provincial consular court shall fortli with report to the supreme con-
0
JUDICIAL EXTRATERRITORIAL RIGHTS.
53
sular court any order of deportation made by it, and the grounds thereof.
The supreme consular court may reverse the order, or may confirm it
with or without variation, and in case of confirmation shall direct it to
be carried into effect.
The person to be deported shall be detained in custody until a fit op-
portunity for his deportation occurs.
He shall, as soon as may be practicable (and in the case of a person
convicted, either after execution of the sentence or while it is in course
of execution), be einbarked, in custody, under the warrant of the su-
preme consular court, on board one of Her Majesty's vessels of war, or
if there is no such vessel available, then on board any British or other
fit vessel bound to the place of deportation.
The warrant of the court shall be sufficient authority to the comman-
der or inaster of such vessel of war or other vessel to receive and detain
the person to be deported, and carry himn to and deliver him up at the
place of deportation, according to the warrant. .
69. The supreme or other consular court may order the person to be
deported to pay all or any part of the expenses of his deportation. Sub-
ject thereto, the expenses of deportation shall be defrayed as the ex-
penses relating to distressed British subjects are defrayed, or in such
other manner as one of Her Majesty's principal secretaries of state from
time to time directs.
70. The supreme consular court shall forth with report to one of Her.
Majesty's principal secretaries of state any order of deportation made
or confirmed by it, and the grounds thereof, and shall also inform Her
Majesty's ambassador, minister, or chargé d'affaires at the Sublime
Ottoman Porte of the same.
71. If any person deported returns to the Ottoman dominions with-
out the permission of one of Her Majesty's principal secretaries of state
(which permission the secretary of state may give), he shall be liable,
on conviction thereof, to punishment (in the discretion of the court be-
fore which be is convicted) by imprisonment for not more than one
month, with or without hard labor, and with or without a fine of not
more than £10 sterling, or by a fine of not more than £20 sterling alone,
and also to be forth with again deported in manner hereinbefore pro-
vided.
VII.-REGISTRATION OF RESIDENTS AND OTHERS.
72. Every British subject (except native Indian subjects of Her Maj-
esty) resident in the Ottoman dominions, being of the age of twenty-
one years or upwards, or being married or a widower cr widow, though
under that age, shall, in the month of January in every year, register
himself or herself in a register to be kept at the consulate of the con-
sular district within which he or she resides, subject to this qualifica-
tion: that the registration of a man shall be deemed to comprise the
registration of his wife (unless she is living apart from him), and that
the registration of the head of a family, whether male or female, shall
be deemed to comprise the registration of all females, being relatives of
the head of the family (in whatever degree of relationship), living under
the saine roof with the head of the family at the time of his or her reg-
istration.
Every such British subject not so resident arriving at any place
within the Ottoman doininions where a consular office is maintained,
unless borne on the muster-roll of a British vessel there arriving, shall,
within one month after his or her arrival, register himself or herself in
a register to be kept at the consular office, but so that no such person
54
·JUDICIAL EXTRATERRITORIAL RIGHTS.
shall be required to register himself or herself more than once in any
year, reckoned from any first day of January,
Any person failing' so to register himself or herself; and not excusing
his or her failure to the satisfaction of the consular officer, shall not be
entitled to be recognized or protected as a British 'subject in the Otto-
man dominions, and shall be liable to a 'fine of not more than 40s. for
each instance of'such failure
73. Any native Indian subject of Her Majesty resident in or resort-
ing to the Ottoman dominions may, if he or she thinks fit, register him-
self or herself at the respective times and in the manner aforesaid.
. Any uative Indian subject of Her Majesty not so registering himself
or herself shall not be entitled to 'sue in any of Her Majesty's consular
courts in the Ottoman dominions, or to receive the support or protec-
tion of any of Her Majesty's cousular officers with respect to any suit
or proceeding to which he or she is' a party in a court or before a judi-
cial officer of the Subliine Cttoman Porte, or in a court or before a jndi-
cial officer in the Ottoman dominions of any state in amity with Her
Majesty; nor shall any of Her Majesty's consular ofticers exercise any
jurisdiction for the punislıment of any crime or offense committed by
any native Indian subject of Her Majesty upless at the date of the
commission of the crime or offense he or she was so registered.
74. Every person shall, on every such registration of himself or her-
self, pay a fee of 5s.
75. The consular officer shall' give to every person so registered a cer-
tificate of registration under his hand and consular seal; and the name
of a wife (unless she is living apart from her husband) shall be indorserl
ou her husband's certificate; and the names and descriptions of females
whose registration is comprised in that of the head of the family shall
be indorsed on the certificate of the head of the family.
VIII. - DEATHS OF BRITISH SUBJECTS NON-RESIDENT.
1
76. Where a'British subject not having at the time of death his fixed
place of abode in the Ottoman dominions dies in those dominions, the
consular court within whose district he dies shall, where tlie circum-
stances of the case appear to the court so to require, forth with on the
death of the deceased, or as soon after as may be, take possession of
his personal property within the particular jurisdiction, or put it under
the seal of the court (in either case, if the nature of the property or
other circumstances so require, making an'inventory), and so keep the
property until it can be dealt with according to law.
IX.-OFFENSES . AGAINST RELIGION.
77. If any British subject is guilty of publicly cleriding, mocking, or
insulting any religion established or observed within the Ottoman do-
minions, or of publicly offering any insult to any religious service, feast,
or ceremony established or kept in any part of those dominions, or to
any place of worship, tomb, or sanctuary belonging to any such religion,
or to the ministers or professors thereof, or of willfully committing any
act tending to bring any such religion, or its ceremonies, mode of wor-
ship, or observances, into hatred, ridicule, or contempt, and thereby to
provoke a breach of the public peace, lie shall be liable in the discretion
of the court) to imprisonment for not inore than two years, with or
without hard labor, and with or without a fine of not more than £100
sterling, or to a fine of not more than £100 sterling alone.
JUDICIAL EXTRATERRITORIAL RIGHTS.
55
Notwithstanding anything in this ordér, erery charge against a Brit-
ish subject of having committed any such offense shall be heard and
determined in a summary way, and any provincial consular court shall
have power to impose the punishment aforesaid.
Her Majesty?s consular officers shall take such precautionary measures
as seem to them proper and expedient for the preveution of such of-
fenses.
X.-FOREIGNERS.--FOREIGN TRIBUNALS.
78. Where a foreigner desires to institute or take any suit or proceed-
ing of a civil nature agaiust a British subject, or a Britislı subject against
a foreigner, the supreme or other consular court, according to its re-
spective jurisdiction, shall entertain the same, and shall hear and deter-
mine it, either by the judge or proper consular officer sitting alone, or,
if all parties desire, or the court thinks fit to direct, a trial with a jury;
then by such judge or officer with a-jury, but in all other respects ac-
cording to the ordinary.course of the court; provided that the foreigner
first obtains and files in the court the consent in writing of the compe-
tent local authority on behalf of the Sublime Ottoman Porte, or that of
the consul of his own nation (as the case may be), to his submitting, and
does submit, to the jurisdiction of the court, and, if required, gives secu-
rity to the satisfaction of the court, by deposit or otherwise, to pay fees,
damages, costs, and expenses, and abide by and perforin such decisión
as may be given by the supreme or other consular court originally or on
appeal (as the case may require).
79. Where it is shown to a consular court that the attendance of a
British subject to give evidence, or for any other purpose .conuected
with the adin nistration of justice, is required in a court or before a judi-
cial officer of the Sublime Ottoman Porte, or in a court or before a judi-
cial officer in the Ottoman dominions of any state in amity with Her
Majesty, the consular court may, in cases and under circumstances
which would require the attendance of such British subject before one
of Her Majesty's consular courts in the Ottoman dominions, and if it
seems to the consular court just and expedient so to do, make an order
for the attendance of such British subject in such court or before such
judicial officer, and for such purpose as aforesaid, but so that a provincial
consular court shall not have power to make an order for such attend-
ance of a British subject at any place beyond the particular jurisdic-
tion of the court.
Any British subject duly served with such an order, and with real-
sonable notice of the time and place at which his attendance is required,
failing to attend accordingly, and not excusing his failure to the satis-
faction of the court making the order, shall be liable to a fine of not
more than £100 sterling, or to imprisonment for not more thau one
month, in the discretion of the court.
:
XI.--APPEAL TO SUPREME CONSULAR COURT.
1.- In civil cases.
80. Where any decision of a provincial consular court, sitting with or
without assessors, is given in a civil case in respect of a sum or inatter
at issue of the annount or value of £50 sterling or upwards, or deter-
mines, directly or indirectly, any claim or question respecting property
i or any civil right of the ainouut or value of £50 sterling or upwards,
any party aggrieved by the decision may apply to the provincial con-
56
JUDICIAL EXTRATERRITORIAL RIGHTS.
sular court for leave to appeal to the supreme consular court, and shall
be entitled to leave on the terms prescribed by the rules made under
this order, and subject to any restrictions and exceptions therein con-
tained.
In any other case the provincial consular court may, if it seems just
and expedient, give leave to appeal on like terms.
In any case the supreme consular court may give leave to appeal on
such terms as seem just.
2.—In criminal cases.
81. Where any person is convicted otherwise than in a summary way
of a crime or offense, the court or consular officer before whom he is
tried may reserve for the consideration of the supreme consular court
any question of law arising on the trial.
Tbe court or officer shall then state a special case setting out the ques-
tion reserved, with the facts and circumstances on which it arose, and
shall send the case to the supreme consular court.
82. Where any person is convicted in a summary way of a crime or
offense, and is dissatisfied with the conviction, as being erroneous in
point of law, the court or consular officer before whom he is tried
shall, on his application (unless the application appears merely frivolous,
in which case the court or officer may refuse the application), state a
special case setting out the facts and the grounds of the convic:ion, for
the opinion of the supreme consular court, and send it to that court..
83. Where a special case is stated, the court or consular officer shall,
as seeins fit, either postpone judgment on the conviction or respite exe-
cution of the judgment, and either commit the person convicted to prison
or take proper security for bim to appear and receive judgment or to
render himself in execution (as the case may require) at au appointed
time and place.
84. The supreme consular court shall bear and finally determine the
matter, and thereupon sball reverse, affirm, or amend any judgment
given at the trial, or set aside such judgment and order an entry to be
made in the minutes of proceedings that in the judgment of the su-
preme cousular court the person ought not to hare been convicted, or
arrest the judgment, or order judgment to be given at a subsequent
sitting of the court or officer by whom the case is stated, or make such
other order as justice requires, and shall also give all necessary and
proper consequential directions..
85. The judgment of the supreme consular court shall be delivered in
open court, after the public hearing of any argument offered on behalf
of the prosecution or of the person convicted.
86. Before delivering judgment the supreme consular conrt may, if
necessary, cause the special case to be amended by the court or consular
officer by whom it was stated.
XII.-APPEAL TO HER MAJESTY IN COUNCIL.
87. Where any decision of the supreme consular court is given in a
civil case in respect of a sum or matter at issue of the amount or value
of £500 sterling or upwards, or deterioines, directly or indirectly, any
claim or question respecting property or any civil right of the amount
or value of £500 sterling or upwards, any party aggrieved by the de-
cision may, within fifteen clays after the same is given, apply by motion
JUDICIAL EXTRATERRITORIAL RIGHTS.
:57
to the supreme consular court for leave to appeal to Her Majesty in
council.
If leave to appeal is applied for by a party adjudged to pay money or
perform a duty, the supreme consular court shall direct either that the
decision appealed from be carried into execution or that the execution
thereof be suspended pending the appeal, as the court considers to be
in accordance with substantial justice.
If the court directs the decision to be carried into execution, the party
in whose favor it is given shall, before the execution of it, give security
to the satisfaction of the court for the due performance of such order as
Her Majesty in council may think fit to make.
If the court directs the execution of the decision to be suspended
pending an appeal, the party against whom the decision is given shall,
before any order for suspension of execution, give security to the satis-
faction of the court for the due performance of such order as Her Ma-
jesty in council may think fit to make.
In all cases security shall also be given by the appellant to the satis-
faction of the court, to an amount not exceeding £500 sterling, for the
prosecution of the appeal, and for payment of all such costs as may be
awarded to any respondent by Her Majesty in council, or by the lords
of the judicial committee of Her Majesty's privy council.
If the last-mentioned security is given within one month from the
filing of the motion-paper for leave to appeal, then, and not otherwise,
the supreme consular court shall give leave to appeal, and the appel-
lant shall be at liberty to prefer and prosecute his appeal to Her Majesty
in council according to the rules for the time being in force respecting
appeals to Her Majesty in council from her colonies, or such other rules
as Her Majesty in council, from time to time, thinks fit to make concerni-
ing appeals from the supreine consular court.
In any case other than the cases hereinbefore described, the supreme
consular court, if it considers it just or expeclient to do so, inay gire
leave to appeal on the terms and in the manner aforesaid.
88. This order shall not affect the right of Her Majesty at any time,
on the humble petition of a party aggrieved by a decision of the supreme
consular court, to admit his appeal thereon on such terins and in such
manner as Her Majesty in council may think fit, and to deal with the
decision appealed from in such manner as may be just.
XIII.--RULES.
89. The judge of the supreme consular court may, notwithstanding
anything herein contained, at any time after the passing of this order,
and from time to time, frame rules for the effectual execution of this
order, and for the observance of the capitulations, articles of peace, and
treaties between Her Majesty and the Sublime ()ttoman Porte, and for
the maintenance of order among British subjects in the Ottoman do-
minions, and may thereby impose reasonable penalties; and also rules
for the regulation of procedure and pleading, forms of writs and other
proceedings, expenses of witnesses and prosecutions, costs, and fees,
in civil and criminal cases, in the supreme consular court and other
consular courts, and the regulation of appeals to the supreme consular
court from the other consular courts.
The rules affecting the conduct of civil suits shall be so framed as to
secure, as far as may be, that cases shall be decided on their merits,
according to substantial justice, without excessive regard to technicali-
ties of pleading or procedure, and without unnecessary delay. No rules
158
JUDICIAL EXTRATERRITORIAL RIGHTS.
!
shall take effect unless and until approved by one of Her Majesty's
principal secretaries of state.
The rules made under the order of the 9th day of January, 1863, shall
remain in force until rules made under the present order take effect
ti
and references to the order of the 9th day of January, 1863, in the rules
madle thereunder, shall be construed as referring to the corresponding
provisions of the present order.
90. A copy of the rules for the time being in force shall be exhibited
:in some conspicuous place in each consular court and consulate in the
Ottoman dominions. Printed copies shall be provided and sold at such
reasonable price as the judge of the supreme consular court from time
to time directs.
No penalty shall be enforced in any court for the breach of any rule
until the rule has been 'so exhibited in the court for one month.
91. For the purpose of convicting any person committing a breach of
any rule, and for all other purposes of law, a printed copy of the rule,
purporting to be certified under the hand of the judge of the supreme
consular court and the seal of the court, or under the land and consular
seal of one of Her Majesty's cousular officers, shall be taken as conclu-
sive evidence of the same, and no proof of the bandwriting or seal pur-
porting to certify the same shall be required.
XIV.-MISCELLANEOUS PROVISIONS.
92. In every case, civil or criminal, heard in a consular court, proper
minutes of the proceedings shall be drawn up, and shall be signed by
the judge or consular officer before whom the proceedings are taken, and
sealed with the seal of the court, and shall, where assessors are present,
be open for their inspection, and for their signature if concurred in by
them.
..The minutes, with depositions of witnesses and notes of evidence taken
at the trial by the judge or consular officer, shall be preserved in the pub-
lic office of the court.
93. In a civil case a consular court may order such costs, or costs,
charges, and expenses as to the court seem reasonable to be paid by any
party to the proceeding or out of any fund to which the proceeding re-
lates.
94. A consular court, either of its own motion or, in civil cases, on the
application of any party to any suit or proceeding or reference, may
summon as a witness any British, subject in the Ottoman dominions,
but so tliat a provincial consular court shall have power so to summon
British subjects in its own district only.
Any British subject duly served with such a summons, and with rea-
sonable notice of the time and place at which his attendance is required,
failing to attend accordingly, and not excusing his failure to the satis-
faction of the court, shall, over and above any other liability to which
he may be subject, be liable to a fine of not more than £100 sterling, or
to imprisonment for not more than one month, in the discretion of the
court.
95. In civil cases a consular court inay, where the circumstances ap-
pear to justify it, order that the expenses of a witness, on his appearing
to give evidence, shall be defrayed by the parties, or any of them.
96. Any person appearing before a consular court to give evidence in
any case, civil or criminal, may be examined or give evidence on oath
in the form or with the cereinony that he declares to be binding on his
conscience.
+
JUDICIAL EXTRATERRITORIAL RIGHTS.
59
97. Any British subject willfully giving false evidence in any suit
or proceeding, civil or criminal, or on any reference, shall be deemed
guilty of willful and corrupt perjury.
98. All costs and all charges and expenses of witnesses, prosecutions,
punishments, and deportations, and other cbarges and expenses, and
all fees, fines, forfeitures, and pecuniary penalties payable under this
order, may be levied by distress and seizure, and sale of ships, goods,
and lands; and 'no bill of sale, or mortgage, or transfer of property,
made with a view to security in regard to crimes or offenses committed,
or to be committed, shall be of any avail to defeat the provisions of this
order.
99. All fees, fines, forfeitures, and pecuniary penalties levied under
this order shall be carried to the public account, and be applied in diin-
inution of the public expenditure on account of Her Majesty's consular
service in the Ottoman dominions.
100. A copy of this order shall be exhibited in each consular court
and consulate in the Ottoman dominions. Printed copies shall be pro-
vided and sold at such reasonable price as the judge of the supreme
consular court directs.
101. Any suit' or proceeding shall not be commenced in a consular
court against any person for anything done or omitted under this order,
or any rule macle under it, unless notice in writiug is given by the
intending plaintiff or prosecutor to the intended defendant one month
at least before the commencement of the suit or proceeding, nor unless
it is commenced within three months next after the act or omission
complained of, or, in case of a continuation of damage, within three
months next after the doing of such damage has ceased.
The plaintiff in any such suit shall not succeed if tender of sufficient
'amends is made by the defendant before the commencement thereof;
and if no tender is made, the defendant may, by leave of the court, at
any time pay into court such sum of money as he thinks fit, whereupon
such proceeding and order shall be had and made in and by the court
as may be back and made on the payment of money into court in an
ordinary suit.
XV.-JOINT JURISDICTION.
1.02. In any case in the decision of wbich, under the capitulations,
articles of peace, and treaties with the Sublime Ottoman Porte, any of
Her Majesty's consuls may or ought to concur, the judge of the supreme
cónsular court, or a consular officer exercising jurisdiction under this.
order, shall exclusively act on the part and on behalf of Her Majesty.
And the right honorable the Earl Russell, and the right honorable
Edward Cardwell, and the right honorable Sir Charles Wood, three of
Her Majesty's principal secretaries of state, and the lords commission-
ers of the admiralty, are to give the necessary directions herein as to
them may respectively appertain.
ARTHUR HELPS.
60
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX VI.
BRITISH ORDER IN COUNCIL OF OCTOBER 25, 1831.
At the court at Balmoral, the 25th day of October, 1881.
Present, the Queen's Most Excellent Majesty in Council.
Whereas Her Majesty the Queen has power and jurisdiction in rela-
tion to Her Majesty's subjects and others in the dominions of the Em-
peror of China and the dominions of the Mikado of Japan :
Now, therefore, Her Majesty, by virtue and in exercise of the powers
in this behalf by the foreign jurisdiction acts, 1843 to 1878, or otherwise,
in her vested, is pleased, by and with the advice of her privy council, to
order, and it is hereby ordered, as follows:
PRELIMINARY.
1. This order may be cited as the China and Japan order in council,
1851.
2. This order shall, except as otherwise expressed, commence to take
effect from and immediately after the thirty-first day of December,
1881, which time is in this order referred to as the commencement of this
order
3. In this order-
“China” means the dominions of the Emperor of China.
"Japan" means the dominions of the Mikado of Japan.
“Minister" means superior diplomatic representative, whether am-
'bassador, envoy, minister plenipotentiary, or chargé d'affaires.
“Consular officer” includes every officer in Her Majesty's consular
service, whether consul-general, consul, vice-consul, or consular agent,
or person authorized to act in any such capacity in China or in Japan.
“ British subject” means a subject of Her Majesty, whether by birth or
by naturalization.
"Foreigner" means a subject of the Emperor of China or of the
Mikado of Japan, or a subject or citizen of any other state in anity
with Her Majesty.
“Treaty” includes convention, and any agreement, regulations, rules,
articles, tariff, or other instrument, annexed to a treaty, or agreed on in
pursuance of any stipulation thereof.
6 Month” means calendar month.
Words importing the plural of this singular may be construed as re-
ferring to one person or thing, and words importing the masculine as
referring to females (as the case may require).
1
REPEAL.
4. Subject to the provisions of this order, Articles 85 to 91, inclusive,
of the China and Japan order in council, 1865, authorizing the making
of regulations for the purposes and by the authority therein mentioned,
and the regulations made thereunder, dated respectively 11 July, 1866,
and 16 November, 1866, relating to mortgages, bills of sale, and pro-
ceedings against partnerships or partners or agents thereof, and Rule
252 of the rules of the supreme court and other courts in China and .
Japan of 4 May, 1865, relating to proceedings agaiust partnerships,
JUDICIAL EXTRATERRITORIAL RIGHTS.
61
and Articles 117 and 118 of the China and Japan order in council, 1865,
relating to foreigners and foreign tribunals, are hereby repealed, as
froin the commencement of this order; lut this repeal does not affect any
riglit, title, obligation, or liability acquired or accrued before the com-
mencement of this order.
CONFIRMATION OF REGULATIONS NOT REPEALED.
5. Such regulations as are described in the schedule of this order,
being regulations made or expressed or intended to be made under or
in execution of the powers conferred by Articles 85 to 91 of the China
and Japan order in council, 1865, and all other regulations made or ex-
pressed or intended to be so made and having been approved, or, in
case of urgency, not disapproved, under that order, before the com-
mencement of this order, except the regulations expressed to be repealed
by this order, are hereby confirmed, as from the passing of this order,
and the same, as far as they are now in force, shall be in force, and
shall be deemed to have always been of the like validity and effect as if
they had been originally made by order in council.
AUTHORITY FOR FURTHER REGULATIONS.
6. Her Majesty's minister in China may from time to time, subject
and according to the provisions of this order, make such regulations as
to him seem fit for the peace, order, and good government of British
subjects resident in or resorting to China.
7. The power aforesaid extends to the making of the regulations for
securing observance of the stipulations of treaties between Her Majesty,
her heirs and successors, and the Emperor of China, and for maiutain-
ing friendly relations between British subjects and Chinese subjects and
authorities.
8. Her Majesty's minister in China may, as he thinks fit, make any
regulations under this order extend either throughout China or to some
one or more only of the consular districts in China.
9. Her Majesty's minister in China, in the exercise of the powers afore-
said, may, if he thinks fit, join with the ministers of any foreign Powers
in amity with Her Majesty in making or adopting regulations with like
objects as the regulations described in the schedule to this order com-
monly called the Shanghai Land Regulations, or any other regulations
for the municipal government of any foreign concession or settlement in
China; and, as regards British subjects, joint regulations so made shall
be as valid and binding as if they related to British subjects only.
10. Her Majesty's minister in China may, by any regulation made
under this order, repeal or alter any regulation made under the China
and Japan order in council, 1865, or under any prior like authority.
11.a.) Regulations made under this order shall not have effect un-
less and until they are approved by Her Majesty the Queen, that ap-
proval being signified through one of Her Majesty's principal secreta-
ries of state-save that, in case of urgency declared in any such regu-
lations, the same shall take effect before that approval, and sha!l con-
tinue to have effect unless and until they are disapproved by Her
Majesty the Queen, that disapproval being signified through one of Her
Majesty's principal secretaries of state, and until notification of that
disapproval has been received and published by Her Majesty's minister
in China.
(6.) That approval, where giren, shall be conclusive, and the validity
62
JUDICIAL EXERATERRITORIAL RIGHTS.
and regularity: of any regulation so approved shall not be called in ques..
tion in any legal proceeding whatever.
12. Any regulations made under this order may, if Her Majesty's
minister thinks fit, impose penalties for offenses against the same,
13. Penalties so imposed shall not exceed the following, namely, for
any offence imprisonment for three months, with or without hard labor,
and with or without a fine of $500, or a fine of $500 without imprison-
ment, with or without a further fine, for a continuing offence, of $25 for
eich day during which the offence continues after the original fine is
incurred..
14. Regulations imposing penalties shall be so framed as to allow in,
every case of part only of the highest penalty being inflicted.
15. All regulations made under this order, whether imposing 'penal-
ties or not, shall be printed, and a printed copy thereof shall be affixed,
and be at all times kept exhibited conspicuously in the public office of
each consulate in China.
16. Printed copies of the regulations shall be kept on sale at such
reasonable price as Her Majesty's minister in China from time to time
directs.
17. Where a regulation imposes a penalty, the same shall not be en-
forceable in any.consular district until a printed copy of the regulation
has been affixed in the public office of the consulate for that district,
and has been kept exhibited conspicuously there during one month. :
18. A charge of an offence against a regulation made under this or-
der, imposing a penalty, shall be inquired of, heard, and determined as
an ordinary criminal charge under the China and Japan order in coun-
cil, 1865, except that (notwithstanding anything in that order) where
the regulation is one for securing observance of the stipulations of a
treaty, the charge shall be heard and determined in a summary way,
and (where the proceeding is before a provincial court) without assess-
ors.
19. A printed copy of a regulation, purporting to be made under this
order, and to be certified under the hand of Her Majesty's minister in
China, or under the hand and consular seal of one of Her Majesty's con-
sular officers in China, shall be conclusive evidence of the due making
of the regulation, and of its contents.
20. The foregoing provisions authorizing regulations. for China are
hereby extended to Japan, with the substitution of Japan for China,
and of the Mikado of Japan for the Emperor of China, and of Her Maj-
esty's minister in Japan for Her Majesty's minister in China, and of
Her Majesty's consular officers in Japan for her Majesty's consular offi-
cers in China.
PRISON REGULATIONS.
21. The respective powers aforesaid extend to the making of regula-
tions for the governance, visitation, care, and superintendence of pris-
ons in China or in Japan, for the infliction of corporal or other punish-
ment on prisoners committing offenses against the rules or discipline of
a prison; but the provisions of this order respecting penalties, and re-
specting the printing, affixing, exhibiting, and sale of regulations, and
the mode of trial of charges of offences against regulations, do not ap-
ply to regulations respecting prisons and offences of prisoners.
>
MORTGAGES.
22. A deed or other instrument of mortgage, legal or equitable, of
lan:ls or houses, in China or in Japan, executed by a British subject,
JUDICIAL EXTRATERRITORIAL RIGHTS,
63
may be registered at any time after its execution at the consulate of the
consular district wherein the property mortgaged is situate.
23. Registration is made as follows: The original and a copy of the
deed or other instrument of mortgage and affidavit verifying the execil-
tion and place of execution thereof, and verifying the copy, are brought
into the consulate; and the copy and affidavit are left there.
24. If a deed or other instrument of mortgage is not registered at the
consulate aforesaid within the respective time following (namely):
(i.) Within fourteen days after its execution, where it is executed in
the consular district wherein the property is situate:
(ii.) Within two months after execution, where it is executed in China
or Japán, elsewhere than in that consular district, or in Hong-Kong:
(ii.) Within six months after its execution, where it is executed else-
where than in China, Japan, or Hongkong:
then, and in every such case, the mortgage debt secured by the deed
or other instrument and the interest thereon shall not bave priority over
judgment or simple contract debts contracted before the registration of
that deed or other instrument.
25. Registered deeds or other instruments of mortgage, legal or equita-
ble, of the same lands or houses have, as among themselves, priority in
order of registration.
26.—(a.) The provisions of this order do not apply to a deed or other
instrument of mortgage executed before the commencement of this
order.
(b:) As regards a deed or other instrument of mortgage executed :
before the commencement of this order, the regulations repealed by
this order shall, notwithstanding that repeal, be in force, and shall be
deemed to have always been of the like validity and effect as if they
had originally been made by order in council.
27. The power conferred on the chief justice of the supreme court for
China and Japan by article 127 of the China and Japan order in council,
1865, of framing rules from time to time, is hereby extended to the
framing of rules for prescribing and regulating the making and keep-
ing of indexes, and of a general index, to the register of mortgages,
and searches in those indexes, and other particulars connected with the.
making; keeping, and using of those registers and indexes, and for
authorizing and regulating the, unregistering of any deed or other in-
strument of mortgage, or the registering of any release or satisfaction
in respect thereof.
BILLS OF SALE.
2
28. The provisions of this order relating to bills of sale-
(i.) Apply only to such bills of sale executed by British subjects as
are intended to affect chattels in China or in Japan;
(ii.) Do not apply to bills of sale given by sheriffs or others under or
in execution of process authorizing seizure of chattels.
29:-(a.) Every bill of sale must conform with the following rules
(namely):
(1.) It must state truly the name, description, and address of the
grantor.
(2.) It must state truly the consideration for which it is granted.
(3.) It must have annexed thereto or written thereunder an inventory
of the chattels intended to be comprised therein.
(4.) Any defeasance, condition, or declaration of trust affecting the
bill not contained in the body of the bill must be written on the same
paper as the bill.
+
64
JUDICIAL EXTRATERRITORIAL RIGHTS.
c.
(5.) The execution of the bill must be attested by a credible witness,
with his address and description.
(6.) Otherwise, the bill is void in China and in Japan to the extent
following, but not further (that is to say):
(i.) In the case of failure to couform with the rule respecting an inven-
tory, as far as regards ch'attels omitted froin the inventory; and
(ii.) In any other case, wholly.
c.) The inventory, and any defeasance, condition, or declaration as
aforesaid, respectively, is for all purposes deemed part of the bill.
30. A bill of sale conforming, or appearing to conform, with the fore-
going rules, may be registered, if it is intended to affect chattels in
Chipa, at the supreme court; and if it is intended to affect chattels in
Japan, at the court for Japau; or in either case at the consulate of the
consular district wherein the chattels are; within the respective time
following, and not afterwards, namely:
(i.) Within fourteen days after its execution, where it is executed in
the consular district wherein the chattels are.
(ii.) Within two months after its execution, where it is executed in
China or in Japan, elsewhere than in that consular district, or in Hong-
Kong
(iii.) Within six months after its execution, where it is executed else-
where than in China, Japan, or Hong-Kong.
31. Registration is made as follows: The original and a copy of the
bill of sale and an affidavit verifying the execution, and the time and
place of execution, and the attestation thereof, and verifying the copy,
are brought into the proper office of the court or the consulate, and the
copy and affidavit are left there.
32. If a bill of sale is not registered at a place and within the time
by this order appointed and allowed for registration thereof, it is, from
and after the expiration of that time, void in China or. in Japan, accord-
ing as that place is in China or in Japan, to the extent following, but
not further—that is to say :
(i.) As agaiust trustees or assignees of the estate of the grantor, in
or under bankruptcy, liquidation, or assignment for benefit of creditors;
and :
(ii.) As against all sheriffs and others seizing chattels under process
of any court, and any person on whose behalf the seizure is made; but
only
(iii.) As regards the property in, or right to the possession of such
chattels comprised in the bill, as, at or after the filing of the petition for
bankruptcy or liquidation, or the execution of the assignment, or the
seizure, are in the grantor's possession, or apparent possession.
33. Registered bills of sale affecting the same chattels þave, as among
themselves, priority in order of registration.
34. Chattels comprised in a registered bill of sale are not in the pos.
session, order, or disposition of the grantor with the law of bankruptcy.
35. If in any case there is an unregistered bill of sale, and within or on
the expiration of the time by this order allowed for registration thereof, a
subsequent bill of sale is granted, affecting the same or some of the same
chattels, for the same or part of the same debt, then the subsequent
bill is, to the extent to which it comprises the same chattels and is for
the same clebt, absolutely void, unless the supreme court for China and
Japan, or the court for.Japan, as the case may require, is satisfied that,
the subsequent bill is granted in good faith for the purpose of correcting
some material error in the prior bill, and not for the purpose of unlaw-
fully evading the operatio of this order.
t
.
JUDICIAL EXTRATERRITORIAL RIGHTS.
65
36. The registration of a bill of sale must be renewed once, at least,
every five years.
37. Renewal of registration is made as follows: An affidavit stating
the date of and parties to the bill of sale, and the date of the original
registration, and of the last renewal, and that the bill is still a subsist.
ing security, is brought into the proper office of the court or the cou-
sulate of original registration, and is left there.
38. If the registration of a bill of sale is not so renewed in any period
of five years, then on and from the expiration of that period. the bill is
deemed to be unregistered.
39. The provisions of this order relating to renewal apply to bills of
sale registered under the regulations repeated by this order.
40. A transfer or assignment of a registered bill of sale need not be
registered; and renewal of registration is not necessary by reason only
of such a trausfer or assignment.
41. Where the time for registration or renewal of registration of a bill
of sale expires ou a Sunday, or other day on which the office for regis-
tration is closed, the registration or renewal is valid if made on the first
subsequent day on which the office is open.
42. If in any case the supreme court for China and Japan, or the court
for Japan, as the case may require, is satisfied that failure to register or
to renew the registration of a bill of sale in due time, or any omission or
misstatement connected with registration or renewal, was accidental or
inadvertent, the court may, if it thinks fit, order the failure, omission, or
misstatement to be rectified in such manner and on such terms, if any,
respecting security, notice by advertisement or otherwise, or any other
matter, as the court thinks fit.
43. (a.) The provisions of this order, except as regards renewal of reg-
istration, do not apply to a bill of sale executed before the commence-
ment of this order.
(b.) As regards a bill of sale executed before the commencement of
this order, the regulations repealed by this order shall, notwithstanding
that repeal, be in force, and shall be deemed to have always been of the
like validity and effect as if they had originally been made by order in
council.
44. The power conferred on the chief justice of the supreme court for
China and Japan by article 127 of the China and Japan order in council,
1865, of framing rules from time to time, is hereby extended to the
framing of rules for prescribing and regulating the making and keeping
of indexes, and of a general index, to the registers of bills of sale, and
searches in those indexes, and other particulars connected with the
inaking, keeping, and using of those registers and indexes, and for au.
thorizing and regulating the unregistering of any bill of sale, or the reg.
istering of any release or satisfaction in respect thereof.
SUITS BY OR AGAINST PARTNERS.
45. (a.) The following are rules of procedure of Her Majesty's courts
in China and Japan, under the China and Japan order in council, 1865:
(1.) Persons claiming or being liable as partners may suo or be sued
in the firm-name, if any.
(2.) Where partners sue in the firm-name they must, on demand in
writing on behalf of any defendant, forth with declare the names and
addresses of the partners.
(3.) Otherwise, all proceedings in the suit may, on application, be
stayed on such terms as the court thinks fit.
S. Mis. 89- -5
.
66
JUDICIAL EXTRATERRITORIAL RIGHTS.
(4.) When the names of the partners are so declared, the suit pro-
ceeds in the same manner, and the same consequences in all respects
follow, as if they had been named as the plaintiffs in the petition.
(5.) 'All subsequent proceedings nevertheless continue in the firm
name.
(6.) Where partners are sued in the firm-name, the petition must be
served either on one or more of the partners within the jurisdiction, or
at the principal place of the partnership business within the jurisdiction
on some person having then and there control or management of the
partnership business.
(7.) Where one person carried on business in the name of a firm ap-
parently representing more persons than one, is sued in the firm.name,
the petition may be served at the principal place of the business within
the jurisdiction on some person having then and there control or man-
agement of the business.
(8.) Where partners are sued in the firm-name, they must appear in-
dividually in their own names.
(9.) All subsequent proceedings nevertheless continue in the firm-
name.
(10.) Where a person, carrying on business in the name of a firm ap-
parently representing more persons than one, is sued in the firm-name
he must appear in his own name.
(11.) All subsequent proceedings nevertheless continue in the firm-
name.
(12.) In any case not herein before provided for, where persons claim-
ing or being liable as partners sue or are sued in the firm-name, any
party to the suit may, on application to the court, obtain a statement of
the names of the persons who are partners in the firm, to be furnished
and verified on oath or otherwise, as the court thinks fit.
(13.) Where a judgment is against partners in the firm-name, execu-
tion, may issue-
(i.) Against any property of the partners as such ; and
(ii.) Against any person who has admitted in the suit that he is a
partner, or who has been adjudged to be a partner; and
(iii.) Against any person who has been served in the suit as a partner,
and has failed to appear.
(14.) If the party who has obtained judgment claims to be entitled
to issue execution against any other person, as being a partner, he may
apply to the court for leave so to do; and the court, if the liability is
not disputed, may give such leave, or if it is disputed may order that the
question of the liability be tried and determined as a question in the suit,
in such manner as the court thinks fit.
(6.) The foregoing rules may be from time to time varied by rules of
procedure made under the China and Japan order in council, 1865.
(c.) Printed copies of the foregoing rules must be exhibited conspicu-
ously in each court and consulate in China and Japan, with the other
rules of procedure for the time being in force under the China and Japan
order in council, 1865, and be sold at such reasonable price as the chief
justice of the supreme court from time to time directs.
(a.) A printed copy of the foregoing rules purporting to be certified
under the hand of the chief justice of the supreme court and the seal of
that court is for all purposes conclusive evidence thereof.
46. (a.) The provisions of this order do not apply to proceedings in-
stituted by or against partnership or partners or agents thereof, before
the coinmencement of this order.
(5.) As regards proceedings instituted by or against partuerships or
JUDICIAL EXTRATERRITORIAL RIGHTS.
6:7
partners or agents thereof before the commencement of this order, the
regulations repealed by this order shall, notwithstanding that repeal,
be in force, and shall be deemed to have always been of the like validity
and effect as if they had been rules of procedure made under the China
and Japan order in council, 1865; and, as regards the same proceedings,
the rule of procedure (252) repealed by this order shall continue to
have effect, notwithstanding that repeal, subject always to the operation
of the regulations repealed by this order.
SUITS BY OR AGAINST FOREIGNERS.
47.—(a.) Where a foreigner desires to institute or take a suit or pro-
ceeding of a civil nature against a British subject, or a British subject
desires to institute or take a suit or proceeding of a civil nature against
a foreigner, the supreme court for Japan, and a provincial court, accord-
ing to the respective jurisdiction of the court, may entertain the suit or
proceeding, and determine it; and, if all parties desire, or the court
directs, a trial with a jury or assessors, then, with a jury or assessors,
at a place where such a trial might be had if all parties were British
subjects, but in all other respects according to the ordinary course of
the court:
(6.) Provided, that the foreigner first obtains and files in the court
the consent in writing of the competent authority of his own nation to
his submitting, and that he does submit, to the jurisdiction of the court,
and, if required by the court, gives security to the satisfaction of the
court, and to such reasonable amount as the court directs, by deposit
or otherwise, to pay fees, damages, costs, and expenses, and abide by
and perform the decision to be given either by the court or on appeal.
(c.) A counter-claim or cross-suit cannot be brought or instituted in
the court against a plaintiff, being a foreigner, who has submitted to
the jurisdiction, by a defendant, except by leave of the court first ob-
tained.
(d.) The court, before giving leave, requires proof from the defendant
that his claim arises out of the matter in dispute, and that there is rea-
sonable ground for it, and that it is not made for vexation or delay.
(e.) Nothing in this provision prevents the defendant from instituting
or taking in the court against the foreigner, after the termination of the
suit or proceeding in which the foreigner is plaintiff, any suit or pro-
ceeding that the defendant might have instituted or taken in the court
against the foreiguer if no provision restraining counter-claims or cross-
suits had been inserted in this order.
(f.) Where a foreigner obtains in the court an order against a de-
fendant, being a British subject, and in another suit that defendant is
plaintiff and the foreigner is defendant, the court may, if it thinks fit,
on the application of the British subject, stay the enforcement of the
order pending that other suit, and may set off any amount ordered to
be paid by one party in one suit against any amount ordered to be paid
by the other party in the other suit.
(9.) Where a plaintiff, being a foreigner, obtains in the court an order
against two or more defendants, being British subjects, jointly, and in
another suit one of them is plaintiff, and the foreigner is defendant,
the court may, if it thinks fit, ou the application of the British subject,
stay the enforcement of the order pending that other suit, and may set
off any amount ordered to be paid by one party in one suit against any
amount ordered to be paid by the other party in the other suit, without
68
JUDICIAL EXTRATERRITORIAL RIGHTS.
prejudice to the right of the British subject to require contribution from
his co-defendants under the joint liability.
(h.) Where a foreigner is co-plaintiff in a suit with a British subject
who is within the particular jurisdiction, it is not necessary for the for-
eigner to make deposit or give security for costs, unless the court so
directs ;. but the co-plaintiff British subject. is responsible for all fees
and costs.
CHINESE, JAPANESE, OR FOREIGN TRIBUNALS.
48.-(a.) Where it is shown to the supreme or other court that the
attendance of a British subject to give evidence, or for any other pur-
pose connected with the administration of justice, is required in a Chinese
or Japanese court, or before a Chinese or Japanese judicial officer, or in
a court or before a judicial officer of any state in amity with Her Majesty,
the supreme or other court may, if it thinks fit, in a case and in circum-
stances in which it would require his attendance before itself, order that
he do attend as so required:
(6.) A provincial court, however, cannot so order attendance at any
place beyond its particular jurisdiction.
(c.) If the person ordered to attend, having reasonable notice of the
time and place at which he is required to attend, fails to attend accord-
ingly, and does not excuse his failure to the satisfaction of the supreme
or other court, he is, independently of any other liability, guilty of an
offence against this order, and for every such offence, on conviction
thereof, by summary trial, is liable to a fine not exceeding $500, or to
imprisonment for not exceeding one month, in the discretion of the court.
And the right honorable the Earl Granville, one of Her. Majesty's
principal secretaries of state, is to give the necessary directions herein.
C. L. PEEL.
[The schedule to which the foregoing order in council refers.]
I. Regulations made by Sir Rutherford Alcock, while Her Majesty's
minister in China, intituled or designated as Land Regulations, Regu-
lations, and By-Laws annexed to the Land Regulation, for the foreign
quarter of Shanghai north of the Yang-king-pang, and commonly called
the Shanghai Land Regulations.
II. Port, consular, customs, and harbor regulations applicable to all
the treaty ports in China, dated 31st May, 1869.
2
JUDICIAL EXTRATERRITORIAL RIGHTS.
69
APPENDIX VII.
REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED
STATES IN CHINA.
WITII TABLE OF FEES, AS PRESCRIBED BY THE DECREE OF APRIL 23, 1864; TO WHICH IS
ADDED A SET OF FORMS, AS USED IN THE UNITED STATES CONSULATE-GENERAL; AND
THE ACT OF JULY, 1870.
I.-ORDINARY CIVIL PROCEEDINGS.
1. How commenced.-Civil proceedings between American citizens
must commence by written petition verified by oath before the consul.
2. Three classes of action.--Ordinary personal civil actions are of three
classes, viz: Contract, comprising all cases of contract or debt; wrong,
when damages are claimed for a wrong; replevin, when possession of a
specific article is claimed.
3. Demand necessary in contract and replevin.-In contract, the peti-
tion must aver that payment, or a performance of the conditions of con-
tract, bas been demanded and withheld; and, in replevin, that the
articles to be replevied have been demanded.
4. Petitioner must deposit money.-The petitioner shall be required to
deposit a reasonable sum to defray the probable expenses of court and
defendant's costs; subsequent deposits may be required if found nec-
essary.
5. Notice to defendant.-Upon deposit of the money, the consul shall
order notice on the petition, in writing, directing defendant to appear
before the court at a given day and hour, to file his written answer on
oath.
6. Service.- Notice must be served on each defendant at least five
days before return day, by delivery of an attested copy of the petition
and order, and of any accompanying account or paper.
7. Personal service should always be required when practicable.
8. Default.-On proof of due notice, judgment by default shall be pro-
cured against any defendant failing to appear and file his answer as re-
quired; but the default may be taken off for good cause within one day
after, exclusive of Sunday.
9. Damages. But in actions of wrong, and all others where the dam-
ages are in their nature unliquidated and indefinite, so that they can-
not be calculated with precision from the statement of the petition, the
amount of the judgment shall be ascertained by evidence, notwithstand-
ing the default.
10. Answer.-If defendant appears and answers, the consul, having
both parties before him, shall, before proceeding further, encourage a
settlement by mutual agreement, or by submission of the case to ref-
erees agreed on by the parties, a majority of whom shall decide it.
11. Amendments.-Parties should, at the trial, be confined as closely
as may be to the averments and denials of the statement and answer,
which shall not be altered after filing, except by leave granted in open
court.
12. American witnesses compelled to attend.-On application of either
party and advance of the fees, the consul shall compel the attendance
of any witness within his jurisdiction before himself, referees, or com-
missioners.
13. Parties are witnesses.-Each party is entitled and may be required
to testify.
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JUDICIAL EXTRATERRITORIAL RIGHTS.
14. Decrees to be obeyed.-Judgment may be given summarily against
either party failing to obey any order or decree of the consul.
15. Attachment or arrest.–For sufficient cause and on sufficient secur-
ity the consul, on filing a petition, may grant a process of attachment of
any defendant's property to a sufficient amount, or of arrest of any de-
fendant not a married woman, nor in the service of the United States
under commission from the President.
16. Dissolution of attachment.-Defendant may at any time have the
attachment dissolved by depositing such sum, or giving such security
as the consul may require.
17. Sale of perishable property.—Perishable property, or such as is
liable to serious' depreciation under attachment, may, on petition of
either party, be sold by the consul's order, and its proceeds deposited
in the consulate.
18. Release of debtor.–Any defendant arrested or imprisoned on civil
petition shall be released on tender of a sufficient bond, deposit of a
sufficient sum, or assignment of sufficient property.
19. Debtor's disclosure.—Any person under civil arrest or imprison-
ment may have his creditor cited before the consul to hear a disclosure
of the prisoner's affairs under oath, and to question thereon; and if
the consul shall be satisfied of its truth and thoroughness, and of the
honesty of the debtor's conduct towards the creditor, he shall forever
discharge him from arrest upon that debt; provided that the prisoner
shall offer to transfer and secure to his creditor the property disclosed,
or sufficient to pay the debt at the consul's valuation.
20. Debtor's board.——The creditor must advance to the jailer his fees
and payment for his prisoner's board until the ensuing Monday, and
afterwards weekly, or the debtor will be discharged from imprisonment
and future arrest.
21. Execution.-On the second day after judgment (exclusive of Sun-
day), execution may issue, enforcing the same, with interest at 12 per
cent. a year against the property and person of the debtor, returnable
in thirty days, and renewable.
22. Seizure and sale of property.-Sufficient property to satisfy the
execution and all expenses, may be seized and sold at public auction by
the officer, after due notice.
23. Property attached on petition, and not advertised for sale within
ten days after final judgment, shall be returned to the defendant.
24. Final judgment for defendant.—When final judgment is given in
favor of defendant, his person and property are at once freed from im-
prisonment or attachment, and all security given by him discharged.
And the consul may, at his discretion, award him compensation for any
damage necessarily and directly sustained by reason of such attach-
ment, arrest, or imprisonment.
25. Offset.In actions of contract, defendant may offset petitioner's
claim by a counter claim, filing his own claim, under oath, with his
Petitioner shall be notified to file his answer seasonably, on
oath, and the two claims shall then be tried together, and but one judg.
ment given for the difference, if any be proved in favor of either party,
otherwise for defendant's costs.
26. Costs.-Except as hereinafter provided, the party finally prevail-
ing recovers costs, to be taxed by him and revised by the consul.
27. Trustee process.--In contract, the consul may order defendant's
property or credits in a third party's hands, to be attached on the peti-
tion by serving him with due notice as trustee, provided petitioner
secures trustee his costs by adequate special deposit.
answer.
JUDICIAL EXTRATERRITORIAL RIGHTS.
71.
28. Trustee's costs.If adjudged trustee, the third party may retain
his costs from the amount for which he is adjudged trustee, if sufficient;
otherwise the balance of trustee's costs must be paid out of petitioner's
special deposit, as must the whole of his costs if not adjudged trustee.
29. Demand on trustee upon execution. The amount for which a trustee
is charged must be inserted in the execution, and demanded of him by
the officer within ten days after judgment, or all claim on him ceases.
Process against property or person of the trustee may issue ten days
after demand.
30. Debt must be at least ten dollars.If petitioner recovers judgment
for less than ten dollars, or if less than ten dollars of defendant's prop-
erty or credits is proved in the third party's hands, in either case the
third party must be discharged with costs against petitioner.
31. Replevin.---Before granting a writ of replevin, the consul shall re-
quire petitioner to file a sufficient bond, with two responsible sureties,
for double the value of the property to be replevied, one an American
citizen; or petitioner may deposit the required amount.
II.—TENDER, ET
32. Before a creditor files his petition in contract, his debtor may
make an absolute and unconditional offer of the amount be considers
due, by tendering the money in the sight of the creditor or his legal
representative.
33. Deposit.-If not accepted, the debtor shall, at his own risk, and
paying the charges, deposit the money with the consul, who shall receipt
to him and notify the creditor.
31. Demand or withdrawal.-It shall be paid to the creditor at any
time, if demanded, unless previously withdrawn by the depositor.
35. Costs.-If the depositor does not withdraw his deposit, and, upon
trial, is not adjudged to have owed petitioner at the time of the tender
more than its amount, he shall recover all his costs.
36. Offer to be defaulted. At any stage of a suit in contract or wrong,
defendant may file an offer to be defaulted for a specific sum and the
costs up to that time, and if petitioner chooses to proceed to trial, and
does not recover more than the sum offered, and interest, he shall pay
all defendant's costs arising after the offer, execution issuing for the
balance only.
III.-REFERENCE.
37. When parties agree to a reference they shall immediately file a
rule, and the case be marked “Referred”; a commission shall then issue
to the referees, with a copy of all papers filed in the case.
38. Award and acceptance.—The referees shall report their award to the
consul, who shall accept the same, and give judgment and issue execu-
tion thereon, unless satisfied of fraud, perjury, corruption, or gross er-
ror in the proceedings.
39. When transmitted to minister.-In cases involving more than five
hundred dollars, if his acceptance is withheld, the consul shall at once
transmit the whole case, with a brief statement of his reasons, and the
evidence thereon, to the minister, who shall give judgment on the award,
or grant a new trial before the consul.
IV.-APPEAL.
40. Must be within one day.-Appeals must be claimed before three
o'clock in the afternoon of the day after judgment (excluding Sunday);
but in civil cases, only upon sufficient security.
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JUDICIAL EXTRATERRITORIAL RIGHTS.
41. To be perfected within five days.-- Within five days after judgment,
the appellant must set forth his reasons by petition filed with the consul,
which shall be transmitted as soon as may be to the minister, with a
copy of docket entries and of all papers in the case.
V.-NEW TRIAL,
42. Because of perjury.-On proof of the perjury of any important wit-
ness of the prevailing party upon a material point, affecting the decision
of a suit, the consul who tried it may, within a year after final judgment,
grant a new trial on such terms as he may deem just.
43. Generally.-Within one year after final judgment in any suit not
involving more than five hundred dollars, the consul who tried it, or his
successor, may, upon sufficient security, grant a new trial where justice
manifestly requires it; if exceeding $500, with the concurrence of the
minister.
VI.-HABEAS-CORPUS.
44. Slaves not to be held.-No consul shall recognize the claim of any
American citizen arising out of a violation of the provisions of the act
of Congress approved February 19, 1862, relating to the coolie trade"
80 called, nor any claim which involves the holding any person in sla-
very.
45. Habeas corpus.—Upon application of any person in writing and
under oath, representing that he or any other person is enslaved, unlaw
fully imprisoned, or deprived of his liberty by any American citizen
within the jurisdiction of a consul, such consul may issue his writ of
habeas corpus, directing such citizen to bring the said person, if in his
custody or under his control, before him; and the question shall be de-
termined summarily, subject to appeal.
VII.--DIVORCE.
46. Libels for divorce must be signed and sworn to before the consul,
and on the trial each party may testify.
47. Attachment.--The consul, for good cause, may order the attach-
ment of libeller's property to such an amount and on such terms as he
may think proper.
48. Husband to advance money.He may also, at his discretion, order
the husband to advance to his wife, or pay into court, a reasonable sum
to enable her to prosecute or defend the libel, with a reasonable monthly
allowance for her support, pending the proceedings.
49. Alimony.—Alimony may be awarded or denied the wife on her
divorce, at his discretion.
50. Minor children.-Custody of the minor children may be decreed
to such party as justice and the children's good may require.
61. Release of both.-Divorce releases both parties, and they shall not
be remarried to each other.
52. Costs.-Costs are at the discretion of the consul.
VIII.-MARRIAGE.
53. Record and return.--Each consul shall record all marriages sol-
emnized by him or in his official presence.
IX.-BIRTHS AND DEATHS.
54. The birth and death of every American citizen within the limits
of his jurisdiction shall likewise be recorded.
JUDICIAL EXTRATERRITORIAL RIGHTS.
73
X. BANKRUPTCY, PARTNERSHIP, PROBATE, ETC.
55. Until promulgation of further regulations, consuls will .continue
to exercise their former lawful jurisdiction and authority in bankruptcy,
partnerships, probate of wills, administration of estates, and other mat-
ters of equity, admiralty, ecclesiastical and common law, not specially
provided for in previous decrees, according to such reasonable rules,
not repugnant to the Constitution, treaties, and laws of the United
States, as they may find necessary or convenient to adopt.
XI.—SEAMEN.
56. In proceedings or prosecutions instituted by or against American
seamen, the consul may, at his discretion, suspend any of these rules
in favor of the seamen when, in his opinion, justice, humanity, and pub-
lic policy require it.
XII.-CRIMINAL PROCEEDINGS.
57. How commenced.-Complaints and informations against American
citizens should always be signed and sworn to before the consul when
the complainant or informaut is at or near the consul's port.
58. How authenticated.—All complaints and informations not so signed
and sworn to by a citizen of the United States, and all complaints and
informations in capital cases, must be authenticated by the consul's
certificate of his knowledge or belief of the substantial truth of enough
of the complaint or information to justify the arrest of the party charged.
59. Copy of accusation.—No citizen shall be arraigned for trial until
the offense charged is distinctly made kņown to him by the consul in
respondent's own language. In cases of magnitude, and in all cases
when demanded, an attested copy (or translation) of the complaint, in-
formation, or statement, authenticated by the consul, shall be furnished
him in his own language, as soon as may be, after his arrest.
60. Presence of accuser.—The personal presence of the accuser is in-
dispensable throughout the trial.
61. May testify.--He shall be informed of his right to testify, and cau-
tioner that if he chooses to offer himself as a witness, he must answer
all questions that may be propounded by the consul or his order, like
any other witness.
62. American witnesses compelled to attend.—The government and the
accused are equally entitled to compulsory process for witnesses within
their jurisdiction, and if the consul believes the accused to be unable
to advance the fees, his necessary witnesses shall be summoned at the
expense of the United States.
63. Fines and costs.---When punishment is by fine, costs may be in-
cluded or remitted at the .consul's discretion. An alternative sentence
of thirty days? imprisonment shall take effect on non-payment of any
part of the fine or costs adjudged in any criminal proceeding.
64. Any prisoner, before conviction, may be admitted to bail by the
consul who tries him, except in capital cases.
65. Capital cases.- No prisoner, charged with a capital offense, shall
be admitted to bail where the proof is evident, or the presumption of his
guilt great.
66. After conviction. After conviction and appeal, the prisoner may
be admitted to bail only by the minister.
67. American bail.Any citizen of the United States offering himself
as bail shall sign and swear, before the consul, to a schedule of unen-
74
JUDICIAL EXTRATERRITORIAL RIGHTS.
cumbered personal property of a value at least double the amount of the
required bail.
68. Foreign bail.--Any other proposed bail or security shall sign and
swear before the consul to a similar schedule of unencumbered personal
property within the local jurisdiction of the consulate, or he may be re-
quired to deposit the amount in money or valuables with the consul.
69. Two sureties.-Unless such sufficient citizen becomes bail, or such
dėposit is made, at least two sureties shall be required.
70. Surrender.–Any American bail may have leave of the consul to
surrender his principal on payment of all costs and expenses.
71. Prosecutor may be required to give security.-Any complainant, in-
formant, or prosecutor, may be required to give security for all costs of
the prosecution, including those of the accused; and every complainant,
&c., not a citizen of the United States, shall be so required, unless in the
consul's opinion justice will be better promoted otherwise; and when
such security is refused the prosecution shall abate.
72. Honorable acquittal.- When the innocence of the accused, both
in law and in intention, is manifest, the consul shall add to the usual
judgment of acquittal the word " honorably.”
73. Costs.-In such case judgment may be given and execution issued
summarily against any informer, complainant, or prosecutor, for the
whole costs of the trial, including those of the accused, or for any part of
either or both, if the proceeding appears to have been groundless and
vexatious, originating in corrupt, malicious, or vindictive motives.
74. Minor offenses.-Consuls will ordinarily encourage the settlement
of all prosecutions, not of a heinous character, by the parties aggrieved
or concerned.
XIII. OATHS.
75. Oaths shall be administered in some language that the witness
understands.
76. Not Christians.—A witness not a Christian shall be sworn accord-
ing to his religious belief.
77. Atheist.-An avowed atheist shall not be sworn, but may affirm,
under the pains and penalties of perjury; the credibility of his evidence
being for the consideration of the consul.
78. Affirmation.- A Christian, conscientiously scrupulous of an oath,
may affirm under the pains and penalties of perjury.
XIV.–DOCKETS, RECORDS, ETC.
79. Civil docket.-Each consul shall keep a regular docket or calen-
dar of all civil actions and proceedings, entering each case separately,
numbering consecutively, to the end of his term
of office, with the date
of filing, the names of the parties in full, their nationality, the nature of
the proceeding, the sum or thing claimed, with minutes and dates of
all orders, decrees, continuances, appeals, and proceedings, until final
judgment.
80. Criminal.He shall keep another regular docket for all criminal
cases, with sufficient similar memoranda.
81.'Filing papers. All original papers shall be filed at once and never
removed; no person but an officer of the consulate or the minister
should be allowed access to them. All papers in a case must be kept
together in one inclosure, and numbered as in the docket with the par-
ties' names, the nature of the proceeding, the year of filing the petition
and of final judgment conspicuously marked on the inclosure, and each
year's cases kept by themselves in their order.
JUDICIAL EXTRATERRITORIAL RIGHTS.
75
XV.-LIMITATION OF ACTIONS AND PROSECUTIONS.
82. Criminal.-Heinous offenses, not capital, must be prosecuted
within six years; minor offenses within one.
83. Civil.-Civil actions based on written promise, contract, or instru-
mert must be commenced within six years after the cause of action ac-
crues; others within two.
84. Absence; fraudulent concealment.--In prosecutions for heinous of-
fenses, not capital, and in civil cases involving more than $500, any
absence of respondent or defendant for more than three months at a
time from China shall be added to the limitation; and in civil cases in-
volving more than $100, the period during which the cause of action
may be fraudulently concealed by defendant shall likewise be added.
XVI.-GENERAL PROVISIONS.
85. Trials, public.-All trials and proceedings in the United States
consular courts in China shall be open and public.
86. Interpreting and translating.–Papers and testimony in a foreign
language shall be translated into English by a sworn interpreter ap-
pointed by the consul; in civil cases to be paid by petitioner. Oaths
and questions shall be translated by the interpreter from the English
for any witness who does not understand English.
87. Testimony.-Parties may be required to file their petitions, an.
swers, complaints, informations, and all other papers addressed to the
court, in English ; or they may be translated by the interpreter at the
consul's discretion. All testimony must be taken in writing in open
court, by the consul or his order, and signed by the witness, after being
read over to him for his approval and correction, and it shall form part
of the papers in the case.
88. Adjournment.--The consul may adjourn his court from time to
time and place to place within his jurisdiction, always commencing pro-
ceedings and giving judgment at the consulate.
89. Officer --All processes not served by the consul personally must
be executed by an officer of the consulate, who shall sign his return,
specifying the time and mode of service, and annexing an account of
his fees.
90. Copies on appeal.—On appeal, copies of all the papers must be
paid for in advance by the appellant, except in criminal cases where
respondent is unable to pay.
91. Copies.-Any person interested is entitled to a copy of any paper
on file, on prepayment of the fee.
92. Reasonable.clearness, precision, and certainty should be required
in the papers; and substantial justice and all practicable dispatch is
expected in the decisions.
93. Definition of consul.—The word “consul” is intended to include
the consul-general, and any vice-consul or deputy-consul actually exer-
cising the consular power at any consulate, unless the sense requires a
more limited construction.
94. Associates.-Each associate in a consular trial shall, before enter-
ing on his duties, be sworn by the consul. Before taking the oath, he
may be challenged by either party, and for sufficient cause excused and
another drawn.
95. Contempt.-Consuls will always preserve order in court, punishing
summarily any contempt committed in their presence, or any refusal to
obey their lawful summons or order, by imprisonment not exceeding
twenty-four hours, or by fine not exceeding $50, and costs.
76
JUDICIAL EXTRATERRITORIAL RIGHTS.
1
1
96. A ttorney.—Every party to a civil or criminal proceeding may be
heard in person, or by attorney of his choice, or by both; but the pres-
ence of counsel shall be under the exclusive control and discretion of
the consul.
97. Accounts. The accounts of the constilar courts shall be kept in
United States currency; and every order of deposit, decree of costs,
taxation of fees, and, generally, every paper issuing originally from the
court, shall be expressed in dollars and cents, and satisfied in United
States metallic currency, or its equivalent.
X VII._FEES.
98. In consular court.
In all cases where the amount in question is not more than $500
$5 00
In all cases where it is over $500
15 00
In all cases where no specific damages are sought, the fee shall be $5 for minor,
and $15 for greater cases.
99. Clerk's fees.-
For issuing all writs, warrants, attachments, or other compulsory process. 1 50
For docketing every suit commenced.
1 00
For executions
1 00
For summonses, subpænas, and notices
50
For all records at the rate of, for each hundred words.
20
For drawing every notice, paper, order, or process, not otherwise provided for. 2 00
And if it exceds 200 words, for every additional hundred words.
1 00
For every seal to process issued..
1 00
For filing each paper upon the return of the marshal, and all other papers filed
in court
10
100. Marshal's fees.-
For apprehending a deserter and delivering him on board the vessel deserted
from, to be paid by the vessel before leaving port...
5 00
For searching for the same, and if not found, to be certified by the consul, and
on his order to be paid bg the ship..
2 00
For serving any writ, warrant, attachment, or other compulsory process, each
person
2 00
For serving summons
1 00
For returuing all notices, writs, attachments, warrants, and summonses, each.. 50
For each bail-bond..
1 00
For every commitment or discharge of prisoner.
2 00
On subpænas, for each witness summoned.
50
For returning subpæna ..
25
For each day's attendance upon court.
3 00
For levying execution..
1 00
For advertising property for sale.
2 00
For releasing property under execution, by order of plaintiff.
3 00
For selling property under execution, when thó amount collected does not
exceed $1,000
5 per cent.
If over $1,000, and not exceeding $5,000.,.
3
If over $5,000.
2 per cent.
For making collections under $200 in cases where no adjudication has taken
place...
5 per cent.
If the amount exceeds $200
24 per cent.
For traveling fees in serving all processes, each milo
$0 15
For serving every notice not heretofore provided for, in addition to the usual
traveling fees..
50
101. Interpreter's fees.-
For each day's attendance upon.court...
3 00
For making translations..
2 00
If more than 200 words, for each additional hundred......
1 00
102. Witnesses' fees.-
For every day's attendance at court....
1 50
For each mile traveled in going to and returning from court.
15
103. Crier's fees.-
On trial of every suit..
1 00
-
-
per cent.
JUDICIAL EXTRATERRITORIAL RIGHTS.
77
104. Citizen associates' fees.-
For each day's attendance.....
$300
105. Costs for prevailing party.-
All necessary court fees paid out.
XVIII.-PROVISO.
106. All decrees heretofore issued by authority of the commissioners.
and ministers of the United States to China, which are inconsistent in
whole or in part with the provisions of this decree, are hereby annulled,
and those portions are henceforth void and of no effect; and the pro-
mulgation of these rules abrogates no authority hitherto lawfully exer-
cised by consuls in China not inconsistent herewith.
FORMS.
1.-Consul's judicial oath.
I, A. B., Consul of the United States at do solemnly swear
that I will administer justice without respect to persons, and will, in
all things, faithfully and impartially discharge all the duties incumbent
upon me as judge of a consular court in China, to the best of my ability,
So help me God!
A. B.
Before me at
this -
A. D. 18.
day of
7
>
2.-Oath to be administered to interpreter, clerk, or marshal.
You do solemnly swear that you will faithfully discharge all the du-
ties incumbent upon you as
for the United States consular court
at - in China, to the best of your ability.
So help you God!
3.- Oath to be administered to associates.
You (and each of you) do solemnly swear that you will faithfully hear
and duly consider the evidence to be submitted in the matter now be-
fore the court, and a fair and impartial opinion give in the premises, to
the best of your ability.
So help you God !
4.-Oath to be administered to witness.
You do solemnly swear that the evidence you will give in this case
shall be the truth, the whole truth, and nothing but the truth.
So help you God !
5.-Docket (civil cause).
In the court of the United States consulate.
(Nationality.)
A. B.
VS: An action of contract, wrong,-ar replevin).
C. D.
Amount (or thing) claimed, dollars.
Entered the
18-
Order for answer, the
at
day of
>
day of
18—,
o'clock M..
2
78
JUDICIAL EXTRATERRITORIAL RIGHTS.
>
m..
2
day of
1
>
Answer filed, the
day of
18-, at o'clock — m.
Order for hearing, the
day of
18%, at -- o'clock
Heard before
consul, and
associates, the
18
Judgment,
6.-Docket (criminal cause).
In the court of the United States consulate.
THE UNITED STATES
VS.
A. B.
1
2
Nature of offense,
By whom information laid,
Date when laid,
Date of issue of summons or warrant,
Judgment,
7.-Petition.
In the Court of the United States consulate,
Between A. B., petitioner, and C. D., defendant.
To esquire,
Consul and Judge in the Court:
The petition of the above named plaintiff humbly sheweth:
That he is a citizen (or subject) of resident at
That the defendant is an American citizen, and within the jurisdic-
tion of this court.
(Here follows a statement of the cause of action, divided into num-
bered paragraphs.)
Your petitioner therefore prays that judgment may be given against
the defendant accordingly, with interest and costs, and that he may
have such other and further relief as to your honorable court may seem
meet.
And your petitioner will ever pray.
A. B.
Subscribed and sworn to at
this
day of
A. D.
18—, before me.
[L. S.]
United States Consul, acting judicially.
8.-Summons to answer.
In the court of the United States consulate,
—
Between A. B., petitioner, and C. D., defendant.
To the Marshal of the Court:
You are hereby directed to serve a copy of the hereunto attached pe-
tition, and of this notice, upon the defendant, C.D., if found within this
consular jurisdiction, and notify him to appear in this court on the
day of
A. D. 18—, at o'clock – m. to file his written answer
thereto on oath.
Given under my hand and the seal of this consulate, at -, the
clay and year first above written.
L. S.
United States Consul, acting judicially.
6.2
, 18-
7
JUDICIAL EXTRATERRITORIAL RIGHTS.
79
9.-Defendant's answer.
In the court of the United States consulate,
Between A. B., petitioner, and C. D., defendant.
The answer of the defendant in this matter is:
(Set forth the defense in numbered paragraphs, referring as may be
appropriate to the paragraphs of the petition.)
The defendant therefore prays that the petition be dismissed, the
petitioner decreed to pay the costs, and that he may have such other or
further relief as to the court may seem meet.
And defendant will ever pray.
C. D.
this
- day of
-, A.D. 18–
>
Subscribed and sworn to at
before me.
[L. S.
United States Consul, acting judicially.
,
10.-Notice of hearing.
In the court of the United States consulate,
18.
A. B., petitioner, 7
VS.
C. D., defendant.
184
9
m.
To the marshal of the court:
You are hereby directed to notify
that the hearing in
the above matter has been set down for the
day of
at -- o'clock
The associates chosen are: Messrs.
and
You will obtain from the said
the names of the witnesses whom
he desires to have summoned on his behalf.
And of this notice make due return.
[L. S.
United States Consul, acting judicially.
11.-Subpæna for associate.
In the court of the United States consulate,
18-
A. B., petitioner,
VS.
O. D., defendant.
To the marshal of the court :
You are hereby directed to summon
if found within
this consular jurisdiction, to be and appear before me, at - o'clock – m.,
on the
day of
18–, to act as an associate in this case.
And of this subpoena make due return.
[L. S.
United States Consul, acting judicially.
80
JUDICIAL EXTRATERRITORIAL RIGHTS.
12. Subpæna to witness.
In the court of the United States consulate,
18.
>
A. B., petitioner,
VS.
C. D., defendant.
To the marshal of the court:
You are hereby directed to summon
if found within
this consular jurisdiction, to be and appear before ine, at — o'clock - m.,
day of -18to give evidence in this case in behalf
of the
And of this subpæna make due return.
[L. .]
United States Consul, acting judicially.
on the
13.-Application to foreign court to subpoena foreign witness.
In the court of the United States consulate,
18%
2
2
The United States consul has the honor to request that
esq., consul for
at -- will be pleased to order A. B., one of
its (subjects or citizens) to appear in this court on
the day
of 18—, at — o'clock – m., for the purpose of giving his evidence
in the cause of “C. D. vs. E. F., in which cause the said A. B. is cited as
a witness by the (petitioner or defendant.)
[L. S.]
United States. Consul, acting judicially.
14.-Notice to foreign court of subpæna for American witness to appear
in the said court:
In the court of the United States consulate,
18-
27
The United States consul has the honor to inform
esq., consul
for - at - ---, that in compliance with his request, he has given
the order to subpena A. B., a citizen of the United States, to appear in
the said court, on
the
day of
-,
18%, at o'clock
m., for the purpose of giving his evidence in the cause “C. D. vs. E. F.,
in which cause the said A. B. is cited as witness by the (petitioner or
defendant.)
(L. S.)
United States Consulyacting judicially.
15.-Officer's return of service.
(To be indorsed on petition, notice, summons, subpoena, or warrant.)
A. B.
A
VS:
C. D.
Served on the within named
(state whether the same has
been served personally on petitioner or on defendant, as the case may
JUDICIAL EXTRATERRITORIAL RIGHTS,
81
be, or by leaving copy at his place of residence or business, or with his
counsel) at — o'clock — m., on the
day of
18-
Marshal of the Court.
,
I
16.-Judgment by default.
In the court of the United States consulate,
18–
Between A. B., petitioner, and C. D., defendant.
C. D., a citizen of the United States, having been duly served with
(personal or as the case may be) notice of this suit, on the
day of
18-, as appears by the officer's return thereon, and failing to
answer to-day as required, judgment is hereby given in favor of A. B.,
the petitioner, by default, for dollars and cents, together with
dollars and cents, the costs of this action.
(L. S.]
United States Consul, acting judicially.
>
cially
17.--Notice of judgment.
In the court of the United States consulate,
18,
>
:
Between A. B., petitioner, and C. D., defendant.
To
Take notice that judgment will be delivered in this matter on the
at o'clock
m.
>
Clerk of the Court.
18.--Final judgment after trial.
In the court of the United States consulate,
18-
Between A. B., petitioner, and C.D., defendant.
Judgment.
Having heard and tried the foregoing action, I adjudge that C. D.
pay to A. B. dollars and cents with dollars and
cents costs.
>
United States Consul, acting judicially.
,
Assented to:
Associates.
S. Mis. 896
82
JUDICIAL EXTRATERRITORIAL RIGHTS.
19.-Motion paper.
In the court of the United States consulate,
18-
Between A. B., petitioner, and C. D., defendant. .
The petitioner (or defendant) in this matter now moves the court to
(here state briefly the substance of the action requested).
20.—Defendant's offset statement.
In the court of the United States consulate,
18-
Between A. B., petitioner, and C. D., defendant.
The answer of the defendant in this matter. is: (Set forth a general
admission of the claim made by the petitioner, or an admission of so
much thereof as may be appropriate, in numbered paragraphs if neces-
sary.)
And for further answer in this matter the defendant says that the
plaintiff is indebted to him as follows: (Here set forth the nature of the
Offset claim in paragraphs, &c.)
Tbe defendant therefore prays that judgment may be given (against
the petitioner with costs, or that the petitioner's claim may be reduced
according to defendant's statement and judgment given accordingly),
and tbat be may have such other or further relief as to the court may
seem meet.
And your petitioner will ever pray.
C. D.
,
Subscribed and sworn to at
this
day of
A. D.
18%, before me.
(L. S.]
United States Consul, acting judicially.
21.-Common execution.
In the court of the United States consulate.
+
Between A. B., petitioner, and C.D., defendant.
To the marshal of the court :
Final judgment having been given by this court in favor of A. B.
against O. D. for dollars and
cents, dated
184,
You are hereby directed in the naine of the United States to collect
the same, amounting to — dollars, with interest at 12 per cent. a year
from the date of judgment, and dollars more for this execution, be-
sides your legal fees; and unless paid on demand, you are hereby directed
to seize any of his property within the jurisdiction of this court that may
be shown to you by A. B., and sell sufficient thereof at public auction,
after due notice; and for want thereof to arrest said debtor's person,
$
JUDICIAL EXTRATERRITORIAL RIGHTS.
83
and bring him before this court, making return hereon of all your acts,
withiu
days.
Given under my hand and the seal of this consulate, this day of
A. D. 18-
(L. S.
United States Consul, acting judicially.
2
22.-Replerin bond.
In the court of the United States consulate,
18-
Between A. B., petitioner, and C.D., defendant.
We, A.B., petitioner in replevin, as principal, and Q. and R., citizens of
the United States, as sureties, acknowledge onirselves jointly and severally
bound for dollars, to . D., a citizen of the United States, defend-
ant, to pay all costs of said suit, and for A. B. to return all the prop-
erty replevied, in the same condition he received it, whenever such
shall be the final judgment, upon immediate full compliance with which
by A. B., this bond will be canceled.
Witness our hands and seals.
A. B., Principal. (L. S.
Q., Surety. L. S.
R., Surety. (L. S.
i
23.-Replevin execution against defendant.
In the court of the United States conşulate.
Between A. B., petitioner, and C.D., defendant.
>
To the marshal of the court:
Final judgment having been given by this court in favor of A. B.,
against O.D., defendant in replevin, for possession of the personal prop-
erty replevied by him, 18%, and for his costs, taxed at dol-
lars, dated 18- you are directed to seize any of the property
within the jurisdiction of this court that may be shown to you by A.
B., and sell sufficient thereof, at public auction, after due notice; and
for want thereof to arrest said debtor's person, and bring him before this
court, making return hereon of all your acts, within days.
Also to deliver to A. B. the accompanying bond filed by himon
18–, and canceled by me.
Given under my hand and the seal of this consulate, this
day of
- A. D., 18 .
(L. S.]
United States Consul, acting judicially.
84
JUDICIAL EXTRATERRITORIAL RIGHTS.
24.—Replevin execution against petitioner.
In the court of the United States consulate.
Between A. B., petitioner, and O. D., defendant.
>
To the marshal of the court :
Final judgment having been given by this court in favor of C. D.,
against A. B., petitioner in replevin, for a return of all (or a part) of
the personal property replevied for him 18–, and for his costs
taxed at dollars, dated
19
18—, you are required in the name
of the United States of America to demand and receive of A. B. the
immediate return of said costs and interest at 12 per cent. a year and
dollars more for this (and another) execution, besides your legal
fees, making return hereon of all your acts, within days.
Given under my hand and the seal of this consulate, this
A. D. 18-
[L. S.]
United States Consul, acting judicially.
day of
2
25.–Agreement for settlement.
In the court of the United States consulate,
18%
>
Between A. B., petitioner, and C.D., defendant.
We, A. B. and C.D., parties to a suit pending before this court, by
the advice of the consul, hereby voluntarily settle the case as follows,
viz: (Here state the terms of settlement distinctly.)
A. B., Petitioner. .
C.D., Defendant.
Done and acknowledged in my presence, filed, and the case dismissed.
(L. S.)
United States Consul, acting judicially.
26.--Agreement to refer.
In the court of the United States consulate,
18-
Between A. B., petitioner, and O. D., defendant.
F., of
We, A. B. and C. D., parties to a suit pending before this court, en-
couraged by the consul, voluntarily agree to submit the controversy to
the decision of Messrs. E., of
-, and G., of
referees agreed on by us, a majority of whom shall decide it. And after
suitable notice to both parties, the referees may proceed ex parte.
Witness our hands and seals.
Petitioner.
C. D., Defendant.
Agreed to and acknowledged before me, filed, and case marked "re-
ferred."
(L. S.]
United States Consul, acting judicially.
A. B.,
JUDICIAL EXTRATERRITORIAL RIGHTS.
85
27.-Commission to referees.
In the court of the United States consulate,
18,
F., of
7
:
7
Case.
Between A. B., petitioner, and C. D., defendant.
To Messrs. E., of
and G., of
GENTLEMEN: Messrs. A. B. and O. D., parties to a suit pending be-
fore this court, having agreed to submit it to your decision, you are ap-
pointed referees to hear, a majority of you having power to decide the
After suitable notice to each party of the time and place of meet-
ing for trial, you may proceed ex parte, in case either refuses or neglects
to appear. You will patiently and impartially hear the parties and
their
witnesses, taking down all the evidence in writing in open court, carefully
reading the testimony to each witness before allowing him to sign the
You will report your award, sealed, to me, returning this commission
with the testimony and all copies and papers, taxiug your own fees and
the parties' costs.
[L...]
United States Consul, acting, judicially.
same.
28.-Award of referees.
In the court of the United States consulate,
18-
Between A. B., petitioner, and C. D.. defendant.
We, the referees commissioned to hear and decide the suit of A. B.
against O. D., have the honor to report that we gave each party suita-
ble notice of the time and place of our meeting for trial, and (both or
either one) appeared (personally or by attorney) and the case was fully and
impartially heard on (state each of the days) and (we or a majority of us)
this day award judgment in favor of A. B. against C. D. for — dollars
and cents, debt (or damages,) and --- dollars and
cents, costs
of court to be taxed by the court.
And we return our commission, with all the testimony taken down in
open court, and signed by each witness after hearing the same read to
him, with the copies of petition, answer, and all other papers filed in
the case.
2
F
G
Referees.
29.-Consul's acceptance of award.
In the court of the United States consulate,
18%.
Between A. B., petitioner, and C. D., defendant.
Received, filed and accepted. Judgment given on the award in favor
of A. B., for dollars and cents, debt (or damages) and
dollars and cents costs of court, costs of reference included.
(L. S.
United States Consul, acting judicially.
86
JUDICIAL EXTRATERRITORIAL RIGHTS.
30.-Consul's transmission of unaccepted award to the minister. .
In the court of the United States consulate,
18-
To the honorable
United States Minister at Peking, China :
SIR: I have the honor to transmit the award of Messrs. E., F., and G.
referees agreed on by the parties, and commissioned by me on the
184, to hear and decide the suit of A. B. against O.D., pending before
this court, and all the copies, testimony, and papers filed in the case.
I regret that I cannot accept the award, for the following reasons:
(State the reasons and the evidence therefor.)
I have the honor to be, sir, your obedient servant,
United States Consul, acting judicially.
.31.-Petition for new trial.
In the court of the United States consultate.
>
Between A. B., petitioner, and C. D., defendant.
To
Consul and Judge in the Court:
0. D., defendant in the above-named cause, which was decided in this
court on the
--- 18 -, represents: (Here set forth the
reason for asking for a new trial, in numbered paragraphs.)
Wherefore C. D. now petitions the court to grant a new trial of this
matter as provided for in the court regulations.
And your petitioner will ever pray,
C. D.
day of
this —
day of
A.D. 18%
>
Subscribed and sworn to at
before me.
[L. S.
United States Consul, acting judicially.
32.—Grant of new trial.
7
In the court of the United States consulate, -,18%.
Between A. B., petitioner, and C. D., defendant.
The foregoing petition of C. D. for a new trial of the suit wherein judg-
ment was given against him and in favor of A. B. for dollars and
cents and dollars and cents costs, on the
18—, has
been considered, and a new trial of the suit is granted and ordered be-
fore this court, for the following reasons, and on the following conditions:
(Here set forth the reasons and conditions at sufficient length.)
(L. S.]
United States Consul, acting judicially.
C. D. having performed the foregoing condilions, the
day of
18, is assigned for a new trial of the suit.
(L. S.]
United States Consul, acting judicially.
18%
JUDICIAL EXTRATERRITORIAL RIGHTS.
87
33.- Application for trustee process.
In the court of the United States consulate.
A. B. versus C. D., and E. F., trustee.
A. B., petitioner in said suit, represents that E. F., a citizen of the
United States, is, as he is satisfied, indebted to C. D., defendant, or has
effects, credits, means or property of defendant, in his hands and pos-
session, which 'A. B. asks to have attached in E. F.'s hands, and that E.
F. may be summoned as C. D.'s trustee, and directed to transfer the
same to A, B., for the following reasons: (State the reasons.)
A. B.
Subscribed and sworn to at
this
day of
-, A. D. 18%
before me.
(L. S.]
United States Consul, acting judicially.
34.– Order of notice to trustee.
In the court of the United States consulate,
18-
>
day of
A. B. versus C. D., and E. F., trustee.
To the marshal of the court:
Notify E. F. to appear before me on the
18–, at-
o'clock in the noon, to file, on oath, his reasons why he should not
be adjudged trustee of O.D., by serving hiin personally with an attested
copy of A. B.'s application and of this order at least five days before-
hand, making return of your service hereon.
(L. S.]
United States Consul, acting judicially.
35.-Trustee execution.
.
In the court of the United States consulate.
A. B. versus C. D., and E. F., trustee.
18%
>
-,
To the marshal of the court :
Final judgment having been given by this court in favor of A. B.
against C. D., as principal defendant, for -- dollars and cents
debt (or damages), and dollars and cents costs, and against E.
F., as trustee of C. D., for dollars and --cents, dated the
you are directed, in the name of the United States of America, to col.
lect the same, amounting to $ with interest at 12 per cent. a year
from said date of judgment, besides your legal fees; and unless paid by
C. D., on demand, to deroand the same (or the amount for which he is
adjudged trustee less his costs taxed at $-) of E. F., within ten days
after said date of judgment, and if still unpaid, you are directed to
seize any of the principal defendant's property within the jurisdiction
of this court that may be shown you by A. B., and sell sufficient thereof
at auction after due notice, and for want thereof to arrest his 1.erson
88
JUDICIAL EXTRATERRITORIAL RIGHTS.
and bring him before this court, or after ten days subsequent to your
demand on said trustee, to proceed in the same manner against his
property and person, making due return of your service hereon.
Given under my hand and the seal of this consulate, this —- day of
18%
(L. S.
United States Consul, acting judicially.
>
3
36.—Petition for habeas corpus.
In the court of the United States consulate.
A. B. versus C. D.
To the United States consular court :
A. B. represents that he (or E. F.) is unlawfully deprived of his liberty
by C. D., a citizen of the United States, and within the jurisdiction of
this court, and solicits relief.
A. B.
this
day of -
A. D. 184
Subscribed and sworn to at
before me.
[L. S.]
United States Consul, acting judicially.
37.— Writ of habeas corpus.
In the court of the United States consulate,
18.
7
A. B. versus O. D.
To the marshal of the court :
Notify C. D., a citizen of the United States, to appear before me
forth with and to bring with him A. B., if he has him in his custody or
under his control, by serving C. D. (personally) with an attested copy
of the petition and of this order, making due return of your service
hereon.
(L. S.]
United States Consul, acting judicially.
38.- Execution in habeas corpus.
In the court of the United States consulate,
-, 18-
A. B. versus C. D.
To the marshal of the court:
Final judginent having been given by this court in favor of A. B.,
petitioner in habeas corpus, against C. D., for unlawfully depriving him
of his liberty within this consular district, and for his costs, taxed at
dollars and -
cents, dated
18—, you are required, in the
name of the United States of America, forthwith to set A. B. at liberty,
and to collect the costs from C. D.
L. S.
United States Consul, acting judicially.
2
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
.
89
39.—Decree for husband to advance money on libel for divorce.
In the court of the United States consulate,
18%
>
L. versus L., in divorce.
Ordered that L. pay into court within days dollars to en
able his wife to prosecute her (or defend his) libel for divorce pending
before me. Also that he advance or secure to her dollars, monthly,
for her support, payable on the first day of each month during the pend-
ency of the libel, or until further order.
(L. S.]
United States Consul, acting judicially.
40.--Certificate of divorce.
In the court of the United States consulate.
L. versus L., in divorce.
Upon the libel of Mr. (or Mrs. L.), filed on the
day of
18—,. against Mrs. (or Mr. L.), a full divorce was decreed by this court
for (state the cause) and the bond of matrimony dissolved by decree
entered on the
18-
Given under my hand and the seal of this consulate, this day of
A. D. 18—
(L. S.]
United States Consul, acting judicially.
9
41.--Application for attachment of defendant's property or arrest of his
person.
In the court of the United States consulate.
A. B. versus C. D.
To the United States consular court :
A. B., petitioner, solicits the attachment of dollars and
cents of the property (or the arrest of the person) of C. D., defendant,
in a suit commenced to-day before this court, for the following reasons
(state the reasons and the evidence).
A. B.
day of
7
Subscribed and sworn to at
this
A. D.
18—, before me.
(L. s.]
United States Consul, acting judicially.
90
JUDICIAL EXTRATERRITORIAL RIGHTS.
42.-Bond of applicant for attachment or arrest.
In the court of the United States consulate,
18%,
Between A. B., petitioner, and C. D., defendant.
We, A. B., petitioner, as principal, and Q. and R., of citizens of
the United States, as sureties, acknowledge ourselves jointly and sev-
erally bound for dollars to O. D., defendant, to pay all loss or dam-
age that may be adjudged by the court to bave been occasioned to:V. D.,
defendant, by attachment of his property (or by arrest of his person) on
application of A. B. to-day.
Witness our hands and seals.
A. B., Principal. (L. S.
Q., Surety.
R., Surety.
L. S.
L. S.
43.-Attachment.
1
In the court of the United States consulate,
18-
?
A. B. versus C. D.
I hereby notify all concerned that in virtue of the judicial authority
in me vested as United States consul, I do by this writ, issuing out of
the United States consular court, attach all the property, real, personal,
and mixed, of the defendant (or so much as may be necessary, same to
be named if possible), to be held subject to the further order of this
court in the matter of a suit now pending before me in which A. B. is
petitioner.
(L. S.]
United States Consul, acting judicially.
44.-Application for sale of attached property.
In the court of the United States consulate.
A. B. versus O. D.
7
To the United States consular court :
A. B., petitioner (or C. D. defendant) in said suit pending before
this court requests that the following personal property, attached in
said suit on the 18-- and now held by the officer, being perisha-
ble (or liable to serious depreciation under attachment), may be sold, to
wit (annex a schedule).
A. B.
Subscribed and sworn to at
this
A. D.
18, before me.
(L. s.)
United States Consul, acting judicially.
:
day of
7
JUDICIAL EXTRATERRITORIAL RIGHTS.
91
45.-Consul's order of sale.
1
In the court of the United States consulate,
18.
A. B. versus O. D.
To the marshal of the court :
In the name of the United States, sell at public auction, for cash, the
property above named, giving public notice thereof, and serving the
parties seasonably with an attested copy of the application and of this
order, making due return to the court.
[L. S.]
United States Consul, acting judicially.
,
46. Public notice of sale.
A. B. versus C. D.
2
7
By order of the United States consular court, dated 18-1
sliall sell at public auction, for cash, to the highest bidder, on
the
day of
18—, at o'clock in the
noon, at
the
following personal property of 0. D., attached (or seized) by me on the
petition (or execution in favor) of A. B.
United States Marshal.
.
18-.
47.-Order of dissolution of attachment.
In the court of the United States consulate,
18–
A. B. versus C. D.
To the marshal of the court:
The attachment on the property of 0.D., defendant in said suit, is
dissolved.
(L. S.]
United States Consul, acting judicially.
48.—Process of civil arrest.
In the court of the United States consulate,
18–
7
A. B. versus C. D.
To the marshal of the court :
In the name of the United States, arrest the person of C. 1., defen
dant iu said suit, and bring him before this court to show cause why he
should not be committed to jail on petition of A. B., filed to-day.
[L. S.]
United States Consul, acting judicially.
.
92
JUDICIAL EXTRATERRITORIAL RIGHTS,
49.- Process of commitment on civil arrest.
In the court of the United States consulate,
18—
2
A. B. versus C. D.
To‘the Marshal of the Court:
In the name of the United States, commit forthwith to jail C. D., de-
fendant in said suit pending before this court, on petition of A. B., and
there let him be safely kept unless discharged by said A. B., or until
further order,
L. S.
United States Consul, acting judicially.
50.-Bail bond of defendant arrested on petition.
In the court of the United States consulate,
18-
>
Between A. B., petitioner, and C. D., defendant.
We, C. D., defendant, as principal, and Q. and R., of citizens
of the United States, as sureties, acknowledge ourselves jointly and
severally bound for — dollars to A. B., petitioner, that C. D., defend-
ant, principal, shall, within ten days after final judgment against him in
said suit, pay the amount thereof, and all legal charges, or surrender
himself into the custody of the court.
Witness our hands and als
C. D., Principal. (L. S.
Q., Surety. L. S.
R., Surety. · L. s.
51.--Application of defendant for citation of petitioner.
In the court of the United States consulate.
A. B. versus C: D.
To the United States Consular Court:
I, C. D., defendant in said suit pending before this court, arrested on
petition of A. B. (or debtor of A. B., by judgment of this court, dated
18%, and now under arrest, or committed to jail thereon by order
of this court), desire to cite A. B. before this court on the
day of
at o'clock in the noon at the consulate, to hear my
disclosure of my affairs on oath, and to question me thereon if he thinks
proper.
7
184,
>
18.
2
C.D.
t
52.-Consul's notice to petitioner.
In the court of the United States consulate,
18%
To the Marshal of the Court:
Notify A. B., petitioner, that the foregoing prayer of C. D. is granted,
and that he, A. B., is cited to appear at the time and place, and for the
JUDICIAL EXTRATERRITORIAL RIGHTS.
93
purpose named, by serving him personally with an attested copy of the
petition and of this order at least five days beforehand, making due re-
turn of your service.
(L. S.]
United States Consul, acting judicially.
53.—Oath, schedule, and assignment of defendant or debtor.
In the court of the United States consulate.
A. B. versus O. D.
-)
18%,
I, C. D., defendant in said suit pending before this court (or judgment
debtor of A. B.), and under arrest (or imprisonment) by said A. B., on
petition dated
18— (or on execution from this court, dated
18-issued on a judgment of
for dollars and
cents debt, and -- dollars and -- cents costs), solemnly swear
that the following is a correct schedule of all the property which I own,
or in which I have any interest, and I am ready to assign it, or such part
as the court may order, to said A. B., petitioner, towards payment, to
take effect whenever he shall recover judgment against me (or to said
A. B., my judgment creditor, towards payment of my debt).
Schedule.
this
C. D.
A. D. 184,
day of
Subscribed and sworn to at
before me.
(L. S.
United States Consul, acting judicially. .
ASSIGNMENT.
I hereby assign to A. B. all my interest in all the property described
in the foregoing schedule for - dollars, being the valuation of court,
to take effect whenever he shall recover judgment against me (or to said
A. B., my judgment creditor, and towards payment of my debt).
(If a part of the property only is to be assigned, say, after specifying
it, &c., in payment of my debt according to the valuation of court).
Witness my hand and seal.
C.D.
Subscribed and sworn to at
this day of - -, A.D. 184
before me.
United States Consul, acting judicially.
Accepted.
-, 18%
A. B.
54.-Consul's certificate to defendant or debtor of discharge on disclosure, or
on security.
In the court of the United States Consulate, 18
A. B. versus O. D.
To C. D.:
SIR: Having made a satisfactory disclosure of your affairs (or having
given sufficient security to A. B., petitioner) before this court to-day,
94
JUDICIAL EXTRATERRITORIAL RIGHTS.
you are hereby forever discharged from arrest or imprisonment by rea
son of (describe the judgment and execution or petition).
[L. S.
United States Consul, acting judicially.
55.-Consul's order of release.
In the court of the United States consulate.
18-
>
A. B. versus C. D:
To the Marshal of the Court:
In the name of the United States, forth with release C. D., now in your
custody on petition (or judgment in favor of A, B.
(L. S.]
United States Consul, acting judicially.
, .
56.-Appellant's petition to minister.
In the court of the United States consulate.
Between A. B. or C. D., appellant, and C. D. or A. B., defendant. .
To the honorable
United States minister at Peking, China:
A. B., a citizen of the United States, appeals from the judgment of
the United States consular court at given on the of
18--, against him and in favor of 0.D., for (state the judgment) for the
following reasons. (Here set forth the reasons in numbered paragraphs.)
18%
A. B.
7
>
57.-Consul's transmission of appeal.
In the court of the United States consulate
18-
2
Sir: A. B., appellant, haviug seasonably filed his appeal with suffi-
cient security, I have allowed it, and now have the honor to transmit his
petition, with copies of all the papers.
(L. S.]
United States Consul, acting judicially.
To the honorable
United States minister at Peking, China.
2
58.--Appellant's petition of appeal to circuit court.
In the court of the United States consulate.
Between A. B. or C. D., appellant, and C. D. or A. B., defendant.
A. B. hereby appeals to the circuit court of the United States for the
district of California, from the final judgment rendered by the United
JUDICIAL EXTRATERRITORIAL RIGHTS.
95
.
States consular court at
on the
of
18, in a case
in which A. B. was petitioner and C. D. was defendant (or as the case
may be), and the said A. B. prays the said circuit court to re-examine
the said judgment and all the proceedings in the case, and to reverse
the said judgment and to render judgment in favor of A. B., with costs.
And the said A. B. hereby specifies the following, among others, as
errors in the said judgment:
And the said A. B. prays leave to specify other errors hereafter.
And your petitioner will ever pray.
Dated at
the day of
A. D. 18-
A. B.
2
59.-Petition for allowance of appeal.
In the court of the United States consulate.
Between A. B. or C. D., appellant, and C. D. or A. B., defendant.
,
To
, esq.,
Consul and judge in the court:
A. B. hereby petitions this court to receive the attached petition of
appeal froin the final judgment given in this case on the of
18%, and to allow the appeal, and to cite the defendant to appear in
the circuit court of the United States for the district of California on
(date stated), to answer to the appeal.
Dirted at
the day of
A. D. 18-
A. B.
#
60.-Order allowing appeal to circuit court.
In the court of the United States consulate, ---,
18%
Between A. B., appellant, and C.D., defendant.
Upon reading and filing the petition of A. B. to be allowed to appeal
to the circuit court of the United States for the district of California,
&c., it is ordered:
That the said appeal be and is hereby allowed. A bond conditioned
in the sum of dollars will be required from the appellant. Upou
the approval of this hond, a citation will be served upon the defend-
ant in appeal, citing him to appear in the said circuit court on (date
stated).
(L. S.
United States Consul, acting judicially.
61:- Citation on appeal to circuit court.
In the court of the United States consulate, , 18-
Between A. B., appellant, and C. D., defendant.
To the marshal of the court :
You are hereby directed to serve a copy of the attached petition of
appeal upon 0. D., the defendant in appeal in this matter, and to cite
96
JUDICIAL EXTRATERRITORIAL RIGHTS.
him to appear in the circuit court of the United States for the district
of California, on (date mentioned), to answer to the said appeal.
(L. S.
United States Consul, acting judicially.
62.-Criminal complaint.
In the court of the United States consulate.'
THE UNITED STATES OF AMERICA
versus
A. B.
on
7
To the United States consular court :
C.D. on oath complains that A. B., a citizen of the United States, and
within the jurisdiction of the court at
18—, unlaw-
fully (here state the offense with sufficient fullness of detail).
C. D.
Subscribed and sworn to at
this
day of
A. D.
18-, before me.
(L. S.]
United States Consul, acting judicially.
63.- Warrant to apprehend accused.
In the court of the United States consulate.
THE UNITED STATES OF AMERICA
versus
A.B.
To the marshal of the court :
In the name of the United States of America, forth with apprehend
A. B., a citizen of the United States, and bring him before me to answer
the complaint of C. D., charging him with the offense of at
on the
18-, for which this shall be your sufficient warrant.
Given under my hand and the seal of this consulate this day
of
18%
(L. S.]
>
7
2
United States Consul, acting judicially.
64.- Warrant without complaint or information.
In the court of the United States consulate.
THE UNITED STATES OF AMERICA
versus
A. B.
g
To the marshal of the court :
Upon facts within my own knowledge, or which I have reason to
believe true, you are directed, in the name of the United States of
JUDICIAL EXTRATERRITORIAL RIGHTS.
97
7
2
America, forth with to apprehend A. B., a citizen of the United States
of America, and bring him before me to answer to a charge of
at
18-, for which this shall be your sufficient warrant.
Given under my hand and the seal of this consulate this
day of
184.
(L. S.]
United States Consul, acting judicially.
2
65.-Bail bond in criminal case.
:
In the court of the United States consulate.
THE UNITED STATES OF AMERICA
versus
A. B.
1
We, A. B., a citizen of the United States, as principal, and E. F.
and G. H., citizens of the United States, as sureties, acknowledge our-
selves jointly and severally responsible for the immediate personal ap-
pearance of A. B. before this court, whenever called for, and to pay to
the court dollars and cents, on deinand, for the use of the
United States of America, whenever the court shall adjudge that said
A. B. has failed to appear and answer to a criminal prosecution for
pending against him before said court on the complaint of C. D., or to
abide and fulfil any decree, order or jugment of the court relative
thereto.
Witness our hands and seals at
day of
184
A. B., Principal. (L. S.]
C. D., Surety. . L. S.
E. F., Surėty. (L. S.
on the
>
1
66.-Schedule of bail's property.
In the court of the United States consulate.
THE UNITED STATES OF AMERICA
versus
A. B.
To the United States consular court:
I, E. F., who offer myself as bail for A. B., a prisoner charged with
the offense of before said court, solemnly swear that I am the
sole and unconditional owner and possessor of all the unencumbered
personal property named in the following schedule, worth at least
dollars. (Here write in a list of the property.)
E. F.
Subscribed and sworn to before me at this
day of
A. D, 18-
(L. S.]
United States Consul, acting judicially.
S. Mis. 89- -7
98
JUDICIAL EXTRATERRITORIAL RIGHTS.
67.-Surrender of prisoner by bail.
In the court of the United States consulate.
THE UNITED STATES OF AMERICA
versus
A. B.
2
>
To the United States consular court:
E. F. asks leave to surrender A. B., charged with the offense of
before said court, whose bail he became on the
day of
A. D.
18-
E. F.
Filed, petition granted, and prisoner committed.
(L. S.]
United States Consul, acting judicially.
2
68.-Execution for costs against informant.
18
In the court of the United States consulate,
THE UNITED STATES OF AMERICA
ver SUS
A. B.
>
To the marshal of the court:
C. D. having filed a complaint (or information) under oath in this
court, on the
day of
18%, against A. B., a citizen of the
United States, charging him with the offense of and A.B. having
been tried and honorably acquitted by me, and the complaint (or infor-
mation) of 0. D. being in my opinion groundless and vexatious, originat-
ing in corrupt or vindictive motives, I have awarded judgment against
O. D. in favor of A. B. for dollars and cents costs, dated
18 You are therefore directed to demand the same from C.
D., and if unpaid after (three) days to seize any of his property within
the jurisdiction of the court, and sell sufficient thereof at public auction,
after due notice; and for want thereof. to arrest the debtor's person, and
bring him before this court, making due return thereon.
Given under my hand and the seal of the consulate.
(L. S.]
United States Consul, acting judicially.
69.--Certificate of drawing names of associates in criminal case.
In the court of the United States consulate,
18.
We, the undersigned, do hereby certify that in the case of the United
States versus , wé, by order of the consul, drew lots for associates,
and that the first lot fell upon (who is absent from this port, or
is dead); the second lot fell upon
;
and the third upon
7
Clerk of the Court.
United States Marshal.
i
JUDICIAL UDI
99
EXTRATERRITORIAL RIGHTS.
70.-Judgment in criminal case.
In the court of the United States consulate,
18-
:
THE UNITED STATES OF AMERICA
2
versus
A: B.
on
2
Having heard and tried the foregoing complaint (or information), filed
by C. D. on the day of
-, 18—, I find A. B. guilty of the of-
fense of
wherewith he was charged, having at
18—, unlawfully (state the substance of the offense proved), and I ad-
judge and sentence him therefor to imprisonment for from this
day, in the prison for American convicts at
(L. S.
United States Consul, acting judicially.
Assented to:
2
2
Associates..
.
2
71.- Warrant of commitment.
In the court of the United States consulate,
18%
To the marshal of the court:
You will commit to jail for confinement, for
years,
months, days, or until further command, the body of
and of this writ make due return.
The charge against the prisoner is and he is committed (for
examination, for trial, under judgment, or as the case may be).
(L. S.]
United States Consul, acting judicially.
2
72.-Marshal's return, to be made on the above warrant of commitment.
I have committed the person named, and the following is his true
description:
Description :- Age, -; Height,
-; Face,
- ; Forehead,
; Eyes, ; Nose, ; Chin,
Marks,
; Build,
-
7
United States Marshal.
73.-Proof of will.
In the court of the United States consulate.
2
Before me, the undersigned, consul of the United States at
has personally appeared A. B., who acknowledged to me that C. D.,
the testator, signed, sealed, and delivered the foregoing will, dated the
day of
18–, in his presence and in the presence of E. F.
and G. H., whose names are subscribed as witnesses thereto, and that
:
100
JUDICIAL EXTRATERRITORIAL RIGHTS.
the testator at the same time declared it to be his last will and testa-
ment.
Subscribed and sworu to at this day of -- A. D. 18-
, ,
before me.
(L. S.]
United States Consul, acting judicially.
, .
74.-Order admitting will to probate.
In the court of the United States consulate,
18-
In the matter of the last will and testament of A. B.
On reading and filing the last will and testament of A. B., deceased;
the proofs that he was a citizen of the United States; that he died at
on the day of 18%; and that he executed the said
last will and testament; and no other last will and te-tament having
come to the knowledge of the court, it is ordered:
That the said will be, and is hereby admitted to probate.
[L. S.
United States Consul, acting judicially.
75.-Order upon filing executor's inventory of estate.
In the court of the United States consulate,
18–
>
In the matter of the last will and testament of A. B., C. D. and E.
F., the executors named in said will having signified their readiness to
accept the trust contained in said will, and having produced to me an
inventory and appraisal of the estate real and persoual, and having
sworn that the said inventory and appraisal are complete and just to
the best of their knowledge and belief, I now order that the said persons
be and are hereby confirmed in the said trust, and that a copy of this
order be given to them upon their filing a bond, with two sureties, in
double the amount of the value of the estate, such bond to be approved
by the court.
(L. S.]
United States Consul, acting judicially.
9
76.-Appointment of administrator.
In the court of the United States consulate,
18%
In the matter of the estate of A. B., deceased.
It appearing that said deceased was a citizen of the United States;
that he died at
on the
day of
-, 18-, aud has left
property to the value of
dollars, more or less, within this consular
district; and no will having been brought to the notice of the court;
and C. D. having applied to be appointed administrator, and having
filed a bond for the faithful performance of his trust, as such adminis-
trator, which bond has been approved, I now order that the said C. D.
be, and is hereby, appointed administrator of the estate of said deceased,
JUDICIAL EXTRATERRITORIAL RIGHTS.
101
and that the said administrator file a full statement of the assets and
liabilities of the estate, with an appraisal of the property, real and per-
sonal, within thirty days from this date.
L. S.
United States Consul, acting judicially.
77.--Attest of copy.
In the court of the United States consulate,
18-
->
I, the undersigued, consul of the United States at
China, do
hereby certify that I have compared the above and foregoing copy with
the original document on file in this office (or exhibited to me this day),
and that it is a true and correct transcript of the same.
In witness whereof I have hereunto set my hand and the seal of the
consulate.
[L. S.]
United States Consul, acting judicially.
78.–Attest of affidavit.
In the court of the United States consulate, 18-
On this
day of
A. D. 18, has appeared before me, the
undersigned, consul of the United States at - -, A. B., personally
known to me, who, being sworn on the Evangelists of Almighty God,
has deposed that the declarations contained in the foregoing statement
in writing upon -
pages, are correct and true to the best of his knowl-
edge and belief.
(L. S.]
United States Consul, acting judicially.
102
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX VIII.
REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED
STATES IN THE OTTOMAN DOMINIONS.
$
RULES FOR THE CONSULAR COURTS OF THE UNITED STATES OF AMER-
ICA, IN TURKEY: WITH FORMS AND A TABLE OF COSTS AND FEES.
1.- ORDINARY CIVIL PROCEEDINGS.
How commen-
cod.
Three classes
tions.
Demand neces.
sary in contract
Petitioner
Notice to de.
fendant.
Service.
1. Civil proceedings between American citizens must com-
mence by written petition verified by oath before the consul.
2. Ordivary personal civil actions are of three classes,
viz:
Contract-comprising all cases of contract or debt.
of ordinary ac- Wrong-when damages are claimed for a wrong.
Replevin--when possession of a specific article is claimed.
3. In contract, the petition must arer that payment or a
and replevin.
performance of the conditions of the contract has been de-
manded and withheld; and in replevin, that the articles to
be replevied have been demanded.
to 4. The petitioner shall be required to deposit a reasonable
deposit monoy.
sum to defray the probable expenses of court and defend-
ant's costs. Subsequent deposits may be required, if found
necessary.
5. Upon deposit of the money, the consul shall order no-
tice on the petition in writing, directing defendant to appear
before him at a given day and hour to file his written an-
swer on oath.
6. Notice must be served on each defendant at least five
days before return day, by delivery of an attested copy of
the petition and order and of any accompanying account or
paper.
1. Personal service should always be required yhen prac-
ticable.
8. On proof of due notice, judgment by default shall be
pronounced against any defendant failing to appear and file
his answer as required; but the default may be taken off
for good cause, within one day after (exclusive of Sunday).
Damages. 9. But in actions of wrong and all others where the dam-
ages are in their nature unliquidated and indefinite, so that
they cannot be calculated with precision from the statements
of the petition, the amount of the judgment shall be ascer-
tained by evidence, notwithstanding the default.
10. If defendant appears and answers, the consul, having
both parties before him, shall, before proceeding farther,
reference encour encourage a settlement by mutual agreement or by submis-
aged.
sion of the case to referees agreed on by the parties, a major.
ity of whom shall decide it.
11. Parties should at the trial be confined as closely as
may be to the averments and denials of the statement and
answer, which shall not be altered after filing except by
leave granted in open court.
Default.
Answer.
Settlement or
Amendments.
JUDICIAL EXTRATERRITORIAL: RIGHTS.
103
12. On application of either party and advance of the fees, American wit-
nesses compelled
the consul shall compel the attendance of any witness within to attend.
his jurisdiction, before himself, referees, or commissioners.
13. Each party is entitled, and may be required, to testify. Parties are wit-
14. Judgment may be given summarily against either Decrees to be
party failing to obey any order or decree of the consul. obeyed.
ATTACHMENT AND ARREST.
attachments.
of
15. For sufficient cause and on sufficient security, the con-
sul, on filing a petition, may grant a process of attachment
of any defendant's property to a suficient amount, or of
arrest of the person of any defendant not a married woman,
nor in the service of the United States under commission
from the President, nor otherwise exempted by law.
16. Defendant may at any time have the attachment dis Dissolution of
solved by depositing such sum or giving such security as
the consul may require.
17. Perishable property, or such as is liable to serious , Sale of perish-
able property.
depreciation under attachment, may, on petition of either
party, be sold by the consul's order and its proceeds depos-
ited in the consulate.
18. Any defendant arrested or imprisoned on civil peti. Release
tion shall be released on tender of a sufficient bond, deposit
of a sufficient sum, or assignment of sufficient property.
19. Any person under civil arrest or imprisonment may Debtor's dis-
have his creditor cited before the consul to hear a disclosure
of the prisoner's affairs under oath, and to question him
thereon, and if the consul shall be satisfied of its truth and
thoroughness, and of the honesty of the debtor's conduct
towar d the creditor, he shall forever discharge him from
arrest upon that debt, provided the prisoner shall offer to
transfer and secure to his creditor the property disclosed or
sufficient to pay the debt, at the consul's valuation.
20. The creditor must advance to the jailer his fees and Debtor's board.
payment for his prisoner's board until the ensuing Monday,
and afterwards weekly, or the debtor will be discharged
from imprisonment and future arrest.
.
EXECUTION.
21. On the second day after judgment (exclusive of Sun-
day) execution may issue enforcing the same, with interest
at 12 per cent. a year, against the property and person of
the debtor, returnable in 30 days and renewable.
22. Sufficient property to satisfy the execution and all ex- Seizure and sale
penses may be seized and sold at public auction by the offi- of property.
cer after due notice.
23. Property attached ou petition and not advertised for
sale within ten days after final judgment shall be returned
to the defendant.
24. When final judgment is given in favor of defendant, Effect of final
his person and property are at once freed from imprison- judgment for de
ment or attachment, and all security by him given dis-
charged. And the consul may, at his discretion, award him
compensation for any damage necessarily and directly sus-
104
JUDICIAL EXTRATERRITORIAL RIGHTS.
tained by reason of such attachment, arrest, or imprison-
ment.
EXEMPTION AND DISCHARGE.
25. The consul may exempt from attachment, seizure, or
assignment any articles of personal property indispensable
to the comfort of the owner or his family, and he may at
any time release or bail any debtor, discharge any security
or dissolve the whole, or a part, of any attachment, when
justice requires.
OFFSET.
26. In actions of contract, defendant may offset petition-
er's claim by any contract claim, filing his own claim under
oath with his answer. Petitioner shall be notified to file his
answer seasonably on oath, and the two claims shall then
be tried together and but one judgment given for the differ-
ence, if any proved, in favor of either party; otherwise for
defendant's costs.
COST.
Trustee's costs.
27. Except as hereinafter provided, the party finally pre-
vailing recovers costs, to be taxed by him and revised by
the consul.
TRUSTEE PROCESS.
28. In contract, the consul may order defendant's prop-
erty or credits in a third party's hands within the jurisdic-
tion of the United States to be attached on the petition, by
serving him with due notice as trustee, provided petitioner
secures trustee his.costs by adequate special deposit.
29. If adjudged trustee, the third party may retain his
costs from the amount for which he is adjudged trustee, if
sufficient; otherwise, the balance of trustee's costs must be
paid out of petitioner's special deposit, as must the whole of
his costs if not adjudged trustee.
Demand upon 30. The amount for which a trustee is charged must be
ten days.
inserted in the execution and deinanded of him by the officer
within ten days after judgment, or all claim on him ceases.
Process against the property or person of trustee may issue
ten days after demand.
31. If petitioner recovers judgment for less than $10,
or if less than $10 of defendant's property or credits is
proved in the third party's hands-in either case the third
party must be discharged, with costs against petitioner.
execution within
Debt must be
at least 10 dollars.
REPLEVIN.
32. Before granting a writ of replevin, the consul shall
require petitioner to file a sufficient bond, with two respon-
sible suréties, for double the value of the property to be re-
plevied, one an American citizen, or petitioner may deposit
the required amount.
!
Deposit.
II.-TENDER, ETC.
33. Before a creditor files his petition in contract, his
debtor inay make an absolute and unconditional offer of the
JUDICIAL EXTRATERRITORIAL RIGHTS.
105
1
withdrawal
amount he considers due by tendering the money in the sight
of the creditor or his legal representative.
34. If not accepted, the debtor shall, at his own risk and Demand or
paying the charges, deposit the money with the consul,
who shall receipt to him and notify the creditor.
35. It shall be paid to the creditor at any time if de. Costs.
manded, unless previously withdrawn by depositor.
36. If the depositor does not withdraw his deposit, and
upon trial is not adjudged to have owed petitioner at the
time of the tender more than its amount, he shall recover
all bis costs.
OFFER TO BE DEFAULTED.
37. At any stage of a suit in contract or wrong, defend-
ant may file an offer to be defaulted for a specific sum and
the costs up to that time, and if petitioner chooses to pro-
ceed to trial, and does not recover more than the sum of-
fered and interest, he shall pay all defendant's costs arising
after the offer, execution issuing for the balance only.
III.-REFERENCE.
38. When parties agree to a reference, they shall imme-
diately file a rule and the case be marked "Referred”; a
commission shall then issue to the referees, with a copy of
all papers filed in the case.
39. The referees shall report their award to the consul, Award and ac-
ceptance.
who shall accept the same and give judgment and issue ex-
ecution thereon, unless satisfied of fraud, perjury, corrup-
tion, or gross error in the proceedings.
40. In cases involving more than $500, if his acceptance When trans
is withheld, the consul shall at once transmit the whole case, ter.
with a brief statement of his reasons and the evidence
therefor, to the minister resident, who shall give judgment
on the award or grant a new trial before the consul.
IV.-APPEAL.
41. Appeals must be claimed before three o'clock in the To be claimed
within one day.
afternoon of the day after the judgment (excluding Sunday),
bụt in civil cases only upon sufficient security.
42. Within five days after judgment, the appellant must Must be per-
set forth his reasons by petition filed with the consul, which days.
shall be transmitted as soon as may be through the consul-
general to the minister, with a copy of the docket entries
and of all papers in the case.
43. The consul-general may allow any prisoner (by law Appeal of pris-
entitled to appeal) sent to Constantinople for imprisonment stantinople.
on sentence of a consul, to file his appeal within ten days
after notice of his arrival, if in his judgment justice would
be promoted thereby, requiring such prisoner to file with
the appeal his petition, which shall be at once transmitted
to the minister.
V.NEW TRIAL.
44. On proof of the perjury of any important witness of For perjury.
the prevailing party upon a material point affecting the de-
106
JUDICIAL EXTRATERRITORIAL RIGHTS.
Generally
cision of a suit, the consul who tried it may within a year
after final judgment grant a new trial, on such terms as he
may deem just.
45. Within one year after final judgment in any suit in-
volving not more than $500, the consul who tried it, or his
successor, may upon sufficient security grant a new trial,
when justice manifestly requires it; if exceeding $500, with
concurrence of the minister.
VI.--HABEAS CORPUS.
Slaves not to be
held.
Habeas corpus.
46. No consul shall recognize the claim of any American
citizen to hold any person in slavery or bondage within the
Turkish Empire.
47. Upon application of any person in writing and under
oath, representing that he or any other person is enslaved,
unlawfully imprisoned, or deprived of his liberty by any
American citizen within the jurisdiction of a consul, such
consul or the consul-general may issue his writ of habeas
corpus directing such citizen to bring said person, if in his
custody or under his control, before him, and the question
shall be determined summarily, subject to appeal,
VII. -DIVORCE.
· Parties are wit-
Desses.
Attachment.
Husband to ad-
vance money.
48. Libels for divorce must be signed and sworn to before
the consul, and on the trial each party may testify.
49. The consul, for good cause, may order the attachment
of libellee's property to such an amount and on such terms
as he may think proper.
50. He may also, at his discretion, order the husband to
advance to his wife or pay into court a reasonable sum to
enable her to prosecute or defend the libel, with a reasona-
ble monthly allowance for her support pending the proceed-
51. Alimony may be awarded or denied the wife on her
divorce at his discretion. Custody of the minor children
may be decreed to such party as justice and the children's
good may require.
52. Divorce releases both parties, and they shall not be
remarried to each other.
53. Costs are at the discretion of the consul.
ings.
Alimony.
Children.
Release of both.
Costs.
VIII.-MARRIAGE.
Record and re- 54. Each consul shall record all marriages solemnized by
turn.
him, or in his official presence, and at the end of each year
transmit a copy to the Secretary of State and to the consul-
general.
IX.-BIRTHS AND DEATHS.
55. The birth and death of every American citizen or
protegé within the limits of his jurisdiction shall likewise
be recorded and annually transmitted.
JUDICIAL EXTRATERRITORIAL RIGHTS.
107
:: X.-LIST OF CITIZENS AND PROTEGES.
56. Each consul shall prepare and keep a correct list of List of citizens.
all adult male citizens of the United States living within his
jurisdiction, with their age, birthplace, occupation, resi-
dence, and year of arrival in Turkey, and the names, &c.,
of the members of their families; adding the date and court
in case of naturalized citizens.
57. Also a similar list of all protegés of the United States, List of proteges.
adding the year of their original protection, by whom it was
granted, and where; also the date of their last permit of
residence and by whom.issued.
58. A copy of said lists shall be transmitted to the Secre- Annual return.
tary of State, to the minister resident and to the consul-gen-
eral, when completed, and a memorandum of the changes at
the end of each year. And every citizen and protege is re-
quired to register himself and family at the consulate each Registration.
December
XI.-BANKRUPTCY, PARTNERSHIP, PROBATE, &C.
59. Uutil promulgation of further regulations, consuls Consul's former
will continue to exercise their former lawful jurisdiction ued.
and authority in bankruptcy, partnership, probate of wills,
administration of estates, and other matters of equity, ad-
miralty, ecclesiastical and common law not specially pro-
vided for in the foregoing orders, according to such reason-
able rules, not repugnant to the Constitution, treaties, and
laws of the United States, as they may find necessary or
convenient to adopt.
XII._SEAMEN.
60. Iu proceedings or prosecutions instituted by or against
American seamen, the consul may, at his discretion, sus-
pend any of these rules in favor of the seaman, whiện, in
his opinion, justice, humanity, and public policy require it.
XIII.-CRIMINAL PROCEEDINGS.
.
Но у
menced.
com
cated.
61. Complaints and informations against American citi-
Žens should always be signed and sworn to before the con-
sul, when the complainant or informant is at or near the
consul's post.
62. All complaints and informations not so signed and How authenti-
sworn to by a citizen of the United States, and all com-
plaints and informations in capital cases, must be authen-
ticated by the consul's certificate of his knowledge or belief
of the substantial truth of enough of the complaint or in-
formation to justify the arrest of the party charged.
63. No citizen shall be arraigned for trial until the offense. Copy of accusa-
charged is distinctly made known to him by the consul in
respondent's own language; in cases of magnitude, and in
all cases when demanded, an attested copy (or translation)
of the complaint, information, or statement authenticated
by the copsul shall be furnished him in his own language
as soon as may be after his arrest.
tion.
108
JUDICIAL EXTRATERRITORIAL RIGHTS.
American wit.
to attend.
Presence of ac- 64. The personal presence of the accused is indispensable
cused.
throughout the trial.
May testify. 65. He shall always have and be informed of his right to
testify, and cautioned that if he chooses to offer himself as
a witness, he must answer all questions that may be pro-
pounded by the consul or his order, like any other witness.
66. The government and the accused are equally entitled
posses compelled
to compulsory process for witnesses within the jurisdiction
of the United States; and if the consul believes the accused
unable to advance the fees, his necessary witnesses shall be
summoned at the expense of the United States.
Fine and costs.
67. When punishment is by fine, costs may be included
or remitted at the consul's discretion; an alternative sen-
tence of not less than 30 days'imprisoument may take effect
on non-payment of any part of the fine or costs adjudged
in any criminal proceeding.
68. Any prisoner before conviction may be admitted to
bail by the consul who tries him, except in capital cases.
Capital cases. 69. No prisoner charged with a capital offense shall be
admitted to bail where the proof is evident or the presump-
tion of his guilt great.
After convic- 70. After conviction and appeal, the prisoner may be ad-
mitted to bail only by the minister or consul-general.
71. Any citizen of the United States offering himself as
bail shall sign and swear before the consul to' a schedule
of unencumbered property of a value at least double the
amount of the required bail.
Foreign bail. 72. Any other proposed bail or security shall sign and
swear before the consul to a similar schedule of mencum-
bered personal property within the local jurisdiction of the
consulate, or he may be required to deposit the amount in
money or valuables with the consul.
73. Unless such sufficient citizen becomes bail, or such
deposit is made, at least two sureties shall be required.
74. Any American bail may have leave of the consul to
surrender his principal on payment of all costs and ex-
penses.
75. Any complainant, informant, or prosecutor may be re-
may be required
to give security. quired to give security for all costs of the prosecution, in-
cluding those of the accused; and every complainant, &c.,
not a citizen of the United States shall be so required, unless,
in the consul's opinion, justice will be better promoted other-
wise; and when such security is refused the prosecution
shall abate.
tion.
American bail.
Two sureties.
Surrender.
Prosecutor
HONORABLE ACQUITTAL.
Costs.
76. When the innocence of the accused both in law and
in intention is manifest, the consul shall add to the usual
judgment of acquittal, the word “Honorably."
77. In such case judgment may be given and execution
issued summarily against any informer, complainant, or
prosecutor for the whole costs of the trial, including those
of the accused, or for any part of either or both, if the pro-
ceeding appears to have been groundless and vexatio us,
originating in corrupt, malicious, or vindictive motives.
.
JUDICIAL EXTRATERRITORIAL RIGHTS.
109
et.
78. Consuls will ordinarily encourage the settlement of Minor offenses.
all prosecutions not of a heinous character by the parties
äggrieved or concerned.
XIV.-OATHS.
79. Oaths shall be administered in some language that Language.
the witness understands.
80. A witness not a Christian shall be sworn or examined Not Christians.
according to his religious belief.
81. Au avowed atheist shall not be sworu, but may affirm Atheists.
under the pains and penalties of perjury, the credibility
of his evidence being for the consideration of the consul.
82. A Christian conscientiously scrupulous of an oath may Affirmation.
affirm under the pains and penalties of perjury.
XV.-DOCKETS, RECORDS, &C.
83. Each cousul shəll keep a regular docket or calendar Civil docket.
of all civil actions and proceedings, entering each case sep-
arately, numbering consecutively to the end of his terin of
office, with the date of filing, the names of the parties in
full, their nationality, the nature of the proceeding, the sum
or thing claimed, with minutes and dates of all orders, de-
crées, continuances, appeals, and proceedings until final,
judgmeut.
84. He shall keep another regular docket for all criminal Criminal dock-
cases with sufficient similar memoranda.
85. Upon final judgment each case shall be recorded in a Records.
book of records, at sufficient length to identify it and pre-
vent a second proceeding for the same cause.
86. Civil proceedings are to be kept distinct from criini- Annual
nal and recorded in separate books, and returns of each
made to the consul-general at the end of each year.
87. Each docket and book of records shall contain an in. Index.
dex.
88. All original papers shall be filed at once and never Filing papers.
removed ; no person but an officer of the consulate or the
minister should be allowed access to thein; all papers in a
case must be kept together in one inclosure and numbered
as in the docket with the parties' names, the uature of the
proceeding, the year of filing the petition and of final judg.
inent conspicuously marked on the inclosure and each year's
cases kept by themselves in their order.
XVI.-LIMITATION OF ACTIONS AND PROSECUTIONS.
89. Heinous offenses, not capital, must be prosecuted Criminal.
within six years; minor offenses within one.
90. Civil actions based on written promise, contract, or
instrument must be commenced within six years after the
cause of action accrues; others within two.
91. In prosecutions for heinous offenses, not capital, and
in civil cases involving more than $500, auy absence of re-
spondent or defendant for more than three months at a time
from Turkey shall be added to the limitation; and in civil.
cases involving more than $100 the period during which
the cause of action may be fraudulently conceriled by de. Fraudulent
fendant shall likewise be added.
le-
turns.
Civil.
concealment.
110
JUDICIAL EXTRATERRITORIAL RIGHTS.
* Minimam.
Translations.
92. No action in contract, replevin, or wrong shall be com-
menced for less than $5, no trustee process for less than
$10, no property attached for less than $25, nor the person
arrested for less than $50; and if petitioner recovers less
than the respective amount in either case, he shall pay all
costs unless for special reasons to the contrary.
XVII.-GENERAL PROVISIONS.
Trials public.
93. All trials and proceedings in the United States con-
sular courts in Turkey shall be open and public and con-
ducted in the English language.
In English.
94. Papers and testimony in a foreign language shall be
translated into English by a sworn interpreter appointed
by the consul; in civil cases to be paid by petitioner.
Interpreter. Oaths and questions shall be translateil by the interpreter
from the English for any witness who does not understand
English.
95. Parties may be required' to file their petitions, an-
swers, complaints, informations, and all other papers ad-
dressed to the court, in English, or they may be translated
Testimony. by the interpreter, at the consul's discretion. All testimony
must be taken in writing in open court by the consul or bis
order and signed by the witness after being read over to
him for his approval and correction, and it shall form part
of the papers in the case.
Adjournments. 96. The consul may adjourn his court from time to time
and place to place within his jurisdiction, always commenc-
ing proceedings and giving judgment at the consulate.
First Monday. 97. The first Monday of each month shall be a regular
court day to which civil actions will stand adjourned unless
otherwise provided for.
Holidays. 98. No court shall sit on February 22, July 4, December
25, or on any Sunday.
99. All processes not served by the consul personally
must be executed by an officer of the consulate, who shall
sign and swear to his return before the consul, specifying
the time and mode of service and annexing an account of
his fees; process from the consul-general shall be served by
the marshal or his deputy. :
Copies on ap. 100. On appeal, copies of all the papers inust be paid for
poal.
in advance by the appellant, except in criminal cases where
respondent is unable to pay.
Copies.
101. Any person interested is entitied to a copy of any
paper on file on prepayment of the fee.
102. Reasonable clearness, precision, and certainty should
be required in the papers, and substantial justice and all
practicable dispatch is expected in the decisions; but tech-
nical accuracy is not essential.
103. The word "consul" is intended to include the consul-
general and any vice-consul or deputy consul actually exer-
cising the consular power at any consulate, unless the sense
requires a more limited construction:
104. Each associate in a consular trial shall, before enter-
ing on his duties, be sworn by the consul. Before taking
the oath, he may be challenged by either party and for suf-
ficient cause excused and another drawn.
Oficer.
Definition of
'consul."
Associates.
JUDICIAL EXTRATERRITORIAL RIGHTS.
111
.
105. Consuls will always preserve order in court, punish-Contempt pun-
ing summarily any contempt committed in their presence
or any refusal to obey their lawful summons, or orđer, by
imprisonment not exceeding 24 hours, or by fine not exceed-
ing $50, and costs.
106. Every party to a civil or criminal proceeding may be Attorney.
heard in person or by attorney of his choice, or by both, but
the presence of counsel shall be under the exclusive control
and discretion of the consul.
107. The accounts of the consular courts shall be kept in in Accounts, etc.;
United States currency, and every order or deposit, decree money.
of costs, taxation of fees, and generally every such paper
issuing originally from the court, shall be expressed in dol-
lars and cents, and satisfied in United States metallic money
or its equivalent coin as fixed by law.
XVIII.-PROCEEDINGS WITH FOREIGNERS.
108. All petitions, informations, complaints, and other How communi-
papers from subjects of the Sublime Porte, or subjects or
citizens of any other friendly power, should be communi-
cated through the Turkish authorities or the consulate of
such other power.
109. All notices, answers, &c., should be communicated
to such subject or citizen through said authorities or such
consulate, respectively.
XIX.-MIXED COMMISSIONS.
110. When any foreign petitioner is entitled to a mixed Proceedings.
commission the suit shall be tried at the United States con-
sulate or such place as the United States consul may direct,
and proceedings shall be conducted as nearly as may be as
in suits between citizens of the United States.
111. Every commissioner nominated by a foreign author- Approval of
ity must have his appointment acknowledged and approved foreign commis-
by the United States consul before taking his seat on the
commission; and all objections to the approval of the nomi-
nation or appointment of either commissioner shall be heard
and deterinined by the consul suminarily and without ap-
peal.
112. The cominissioner appointed by the United States Consular com-
consul should be a citizen of the United States, when prac- side.
ticable; he will always preside, and his presence is indis-
pensable throughout the proceedings.
XX.—DESIGN OF THE RULES.
The promulgation of these rules abrogates no authority
hitherto lawfully exercised by consuls not inconsistent here-
with.
XXI.-CHANGES.
Whenever, in the opinion of the consul, a change becomes
necessary in the rules, the proposed change, with the rea-
sons, shall be communicated in writing to the minister, and,
the change approved by him, be submitted to the other
consuls and published over his signature before going into
effect.
.
missioner to pre-
"
112
JUDICIAL EXTRATERRITORIAL RIGHTS.
FORMS.
1.
Petition in contract. [Rules 1, 2, 3.]
P. against D.
To the United States consular court at C., in Turkey :
P., of C., a citizen of the United States, represents that D., of C., á
citizen of the United States, is indebted to him piasters, being
dollars and cents in United States silvér money, according to the
accompanying account, payment whereof having been demanded and
withheld, he asks the court to enforce.
C.,
18.
(Signed).
7
P.
18%
2
United States consular court at C.,
Signed and sworn to, received, and filed.
(L. S.
Y. Z.,
United States Consul.
2.
Petition in wrong.
P. against D.
>
To the United States consular court at O.:
P., of C., &c., represents that D., of, &c., &c., on the
day of
184, at c., in Turkey, unlawfully [state briefly but clearly the
substance of the wrong, occasioning P. piasters, being in United
States silver money dollars, dainage, for which he claims recom-
pense.
Dated, signed, sworn to, and certified like No. 1.
3
.
Petition in replevin.
P. against D.
To the United States consular court at 0.:
P. of C., &c., represents that D., of, &c., is iu unlawful possession of per-
sonal property of P., described in the following schedule, worth
piasters, being in United States silver money dollars and
cents, to the immediate possession of which P. believes himself entitled
Delivery having been demanded and withheld, P. claims his property at
this court.
Schedule.-No. --; description, value, piasters, ; value,
C.
Dated, signed, sworn to, and certified like No. 1.
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
113
4.
Replevin bond. [Rule 32.]
P. against D.
>
In the United States consular court at C.,
18_
We, P., of, &c., petitioner in replevin, as principal, and S., of, &c., a
citizen of the United States, and U., of, &c., as sureties, acknowledge
ourselves jointly and severally bound for dollars, United States
silver money, to D., of C., citizen of the United States, defendant, to
pay all costs of said suit, and for P. to return all the property replevied,
in the same condition he received it, whenever such shall be the final
judgment, upon immediate full compliance with which by P. this bond
will be canceled.
Witness our hands and seals.
(Signed)
P., Principal. [L. S.
S., Surety. [ L. S.
U., Surety
L. S.
Signed and sealed before me approved, and filed.
.
Y. Z.,
United States Consul.
5.
Order of notice to defendant (Rule 5.]
P. against D.
United States consular court at C.,
184
>
To the officer :
SIR: Notify Mr. D. to appear at the United States consulate at O., on
.
- day
184, at o'clock in the
-110011, to present
under oath his written answer to the foregoing petition, by serving him
(personally) with an attested copy of the petition (and account) and of
this order at least five days beforehand, making return of your service
herein under oath.
[LS.
Y. Z.,
United States Consul.
6.
Officer's return of service. [Rules 7, 99.
P. against D.
To the United States consular court at C.:
I have to-day served an attested copy of the foregoing petition and
accompanying account, and of the order of court, on Mr. D. (person-
ally, or as directed, at C.
Dated, signed, sworn to, and certified like No. 6.
S. Mis. 898
114
JUDICIAL EXTRATERRITORIAL RIGHTS.
7.
Attest of a copy. [Rule. 6.]
United States consular court at C.,
18
2
filed in this court.
The foregoing is a copy of the original
Attest:
(L. S.
Y, Z.,
United States Consul.
S,
Defendant's ansiter. [Rules 5, 10.]
P. against D.
To the United States consular court at C.:
D., of C., a citizen of the United States, summoned to answer the
petition of P., in (contract), replies: (Here deny any statement of P.
which you are able to controvert, and add any statement or explanation
of your own.]
Dated, signed, sworn to, and certified like No. 1.
9.
>
Judgment by default. [Rule 8.]
P. against D.
United States consular court at C.,
18-
D., of C., citizen of the United States, having been duly served with
(personal) notice of this suit,
-18%, as appears by the officer's
sworn return thereon, and failing to appear and austrer to-day, as re-
quired, judgment is given in favor of P., of, &C., &c., against D. by de-
fault for piasters, being dollars and cents, in United
States silver money (debt), or damages, and dollars and
cents costs.
Y. Z.,
United States Consul.
10.
Agreement to setile. [Rule 10.
P. against D.
In United States consular court at C.
>
We, P. and D., parties to a suit in (contract), pending before this court,
by advice of the consul, voluntarily settle the case, as follows, viz:
Here state the terms of settlement distinctly.]
C.
18-
(Signed)
P., Petitioner.
D., Defendant.
Done and acknowledged in my presence, filed, and case dismissed.
Y. Z.,
United States Consul.
JUDICIAL EXTRATERRITORIAL RIGHTS.
115
11.
Agreement to refer. [Rules 10, 38.
. ]
P. against D.
Iu United States consular court at C.,
18-
We, P., of, &c., and D., of, &c., parties to a suit in (contract), pending
before this court, encouraged by the consul, voluntarily agree to submit
the controversy to the decision of Messrs. R., of C., citizen of the United
States, E., of, &c., &c., and F., of, &c., &c., referees agreed on by us, a
majority of whom shall decide it. And after suitable notice to both
parties, the referees may proceed ex-parte.
Witness our hards and seals.
(Signed )
P., Petitioner. [L. S.
D., Defendant. L. S.]
Agreed to and acknowledged before me, filed, and case marked "Re-
ferred.??
Y. Z.,
United States Consul.
12.
Commission to referees. (Rule 38.)
P. against D.
United States consular court at C.,
18-
To Messrs. R., of, &c., &c., E., of, &c., and F.; of, &c.:
GENTLEMEN: Messrs. P., of, &c., and D., of, &c., parties to a suit in
(contract), pending before this court, having agreed to submit it to your
decision, you are appointed referees to hear, a majority of you having
power to decide, the case. After suitable notice to each party of the
time and place of meeting for trial, you may proceed ex-parte, in case
either refuses or neglects to appear. You will patiently and impartially
hear the parties and their witnesses, taking down all the evidence in
writing in open court, carefully reading his testimony to each witness
before allowing him to sign the same.
You will report your award, sealed, to me, returning this commission
with the testimony and all copies and papers, taxing your own fees and
the parties' costs.
(L. S.)
Y. Z.
United States Cónsul.
13.
Award of referees. [Rule 39.]
P. against D.
To the United States consular court at C.:
We, the referees commissioned to hear and decide the suit of Mr. P.,
of, &c., against Mr. D., of, &c., in (contract), have the honor to report that
we gave each party suitable notice of the time aud place of our meeting
116
JUDICIAL EXTRATERRITORIAL RIGHTS.
for trial, and (both) or Mr. P., appeared (personally) (or by attorney)
and the case was fully and impartially heard on [state each of the days),
and (we) (or a majority of us] this day award judgment in favor of Mr. P.
against Mr. D. for piasters, being
dollars and
cents, in United States silver money (debt), or damages, and dol-
lars and cents, costs of reference; costs of court to be taxed by
the court.
And we return our commission, with all the testimony taken down in
open court and signed by each witness after hearing the same read to
him, with the copies of petition, answer, and all other papers filed in
the case.
D., 18%.
(Signed)
R.
E.
F.
14.
Consul's acceptance of award.
P. against D.
United States consular court at C.,
18–
Received, filed, and accepted. Judgment given on the award in favor
of Mr. P. for
piasters, being
dollars and
cents,
United States silver money (debt), or damages, and dollars and
cents costs
[L. S.]
United States Consul.
15.
Y. Z.,
Consul's transmission of unaccepted award to the minister. [Rule 40.]
P. against D.
To the minister resident of the United States of America near the Sublime
Porte at Constantinople.
SIR: I have the bonor to transmit the award of Messrs. Rv., E., and F.,
referees agreed on by the parties, and commissioned by me, 18-
to hear and decide the suit of Mr. P. against Mr. D. in (contract), pend-
ing before this court, and all the copies, testimony, and papers filed in
the case. I regret that I cannot accept the award for the following
reasons: (State the reasons and the evidence therefor.]
Y. Z.,
United States Consul.
16.
Summons to witness. [Rule 12.]
t
P. against D.
United States consular court at C.,
18–
To Mr. W., of C., a citizen of the United States :
SIR: At the request of the petitioner, $ — is hereby tendered you
as fees, and you are required, in the name of the United States, to ap-
JUDICIAL EXTRATERRITORIAL RIGHTS,
117
7
pear (before this court at the consulate), or before Messrs. R., E., and F.,
referees, or commissioners at (forth with) (or on day
18m, at o'clock in the noon), to testify in said case.
L. S.
Y. Z.,
United States Consul.
17.
Summons to witness in criminal proceeding. (Rule 66.
United States of America against R.
United States consular court at C.,
18
>
To Mr. W., of C., a citizen of the United States :
SIR: In the name of the United States, your are required to appear
(before this court at the consulate) forth with, or on, &c., &c., to testify
in a prosecution against Mr. R.
(L. S.]
Y. Z.,
United States Consul.
18.
Summary judgment on neglect to obey order or decree of consul. [Rule 14. )
P. against D.
United States consular court at C., --, 18—
P. (petitioner), not having obeyed my order of 18—, requir-
ing him to (state the order], judgment is given against him in favor of
D. (defendant), summarily, for his full costs, taxed at $ - [or any
other appropriate judgment].
Y. Z.,
United States Consul.
19.
Application for attachment of defendant's property or arrest of his person.
[Rule 15.]
.
of the prop-
P. against D.
To the United States consular court at C. :
P., of, &c., petitioner, solicits the attachment of $
erty or the arrest of the person of D., defendant in a suit in contract),
commenced to-day before this court, for the following reasons (state the
reasons and the evidence].
Dated, signed, etc.
20.
Bond of applicant for attachment or arrest.
P. against D.
{First part similar to replevin bond, No. 4, with condition] to pay
all loss or damage that may be adjudged' by the court to have been occa-
118
JUDICIAL EXTRATERRITORIAL RIGHTS.
sioned D., of, &c., defendant (by attachment of his property), or by
arrest of his person on application of P. to-day.
[Dated, signed, sealed, approved, and filed like No. 4.
21.
Process of attachment.
P. against D.
United States consular court at 0.,
18%.
To the officer :
SIR: In the name of the United States attach any personal property
of Mr. D., defendant, within the jurisdiction of this court (except) (name
any property thought proper to exempt under Rule 25] to the value of
$ and hold it until further order of court, making immediate re-
turn of your action under oath.
L. S.
United States Consul.
Y. Z.,
22.
Application for sale of attached property. [Rule 17.]
P. against D.
To the United States consular court at 0.:
P., petitioner, or D., defendant in said suit pending before this court,
requests that the following personal property attached on said suit,
18—, and now held by the officer, being perishable, or liable to
serious depreciation under attachment, maybe sold, to wit: fannex a
schedule).
Dated, signed, and filed.
2
23.
Consul's order of sale.
.
P. against D.
United States consular court at C.,
18-
To the officer :
SIR: In the name of the United States sell at public auction for cash
the property above named, giving public notice thereof, and serving the
parties seasonably with an attested copy of the application and of this
order, making return to court under oath.
[i. s.]
Y. Z.,
United States Consul.
24.
Public notice of sale.
P. against D.
By order of the United States consular court at C., dated
I shall sell at public auction for cash to the highest bidder, on
- 18–
JUDICIAL EXTRATERRITORIAL RIGHTS.
119
noon, at
day - 18%, at
o'clock in the
in C.,
the following personal property of Mr. D., of, &c., (attached) or seized
by me on a (petition) or execution in favor of Mr. P. (annex a schedule].
0. Officer;
C.,
.18%
25.
9
Order of dissolution of attachment. [Rule 25.]
P, against D.
United States consular court at C., —
18-
To the officer :
SIR: The attachment on the property of Mr. D., defendant in said
suit, is dissolveil.
(L. S.
Enited States Consul.
26.
Y. Z.,
Process of civil arrest. [Rule 13.]
P. against D.
United States consular court at C.,
18.
2
To the officer:
SIR: In the name of the United States arrest the person of Mr. D.,
of O., a citizen of the United States, defendant in said suit, and bring
Lim before this court to show why he should not be committeil to jail on
petition of Mr. P., filed to-day.
(I. S.]
United States Consul. .
27.
Y. Z.,
Process of commitment on civil arrest.
--, 13_,
P. against D.
United States consular court at C.,
To the officer :
SIR: In the name of the United States commit forth with to jail Mr. D.,
of C., a citizen of the United States, defendant in said suit in contract),
pending before this court, on petition of Mr. P., of O., and there let him
be safely kept, unless discharged by said P., until further order.
(L. S.]
Y. Z.,
United States Consul. .
28.
Bail bond of defendant arrested on petition. [Rule 18.]
P. against D.
Similar to replevin bond, No. 4, conditioned that D., the defendant,
principal, shall, within ten days after final judgment against him in
120
JUDICIAL EXTRATERRITORIAL RIGHTS.
said suit, pay the amount thereof, and all legal charges, or surrender
himself into the custody of this court.
[Dated, signed, approved and filed like No. 4.
29.
Citation of defendant or debtor to petitioner or creditor. (Rule 19.]
P. against D.
To the United States consular court at C.:
I, D., of, &c. (defendant in said suit, arrested on petition of P., of,
&c., pending before this court), or debtor of P, of, &c., by judgment of
this court, dated 18%, and now under arrest (or committed to
jail thereon by order of this court], desire to cite P. before this court
day 18%, at o'clock in the
noon, at the
consulate, to hear my disclosure of my affairs on oath, and to question
me thereon, if he thinks proper.
C.,
18-
(Signed)
D.
30.
on
7
18—;
3
Consul's notice to petitioner or creditor.
United States consular court at C.,
To the officer:
SIR: Notify Mr. P., petitioner (or creditor), that the foregoing prayer
of Mr. D. (said defendant), or his debtor, is granted, and that he, Mr.
P., is cited to appear at the time and place and for the purpose named,
by serving, &c. (like notice to defendant No. 5).
31.
Oath, schedule and assignment of defendant or debtor.
P. against D.
In United States consular court at C.
4
>
2
2
I, D., of, &c. (defendant in said suit in (contract), pending before this
court], or judgment debtor of P., of, &c., and (under arrest) or im-
prisonment by said P. (on petition dated 18–), or on execution
from this court dated
18—issued on a judgment of
184 for $ debt, and '$
costs, solemnly swear that the
following is a faithful schedule of all the property which I own, or in
which I have any interest, and I am ready to assign it, or such part
as the court may order, to said P. (petitioner, towards payment, to take
effect whenever he shall recover judgment against me) or to said P., my
creditor, towards payment of my debt.
Schedule.- No., description, locality, nature of interest, value, P., $ c.
[Dated, signed, sworn to, and certified like No. 1.1
Assignment.
I hereby assign to P. (petitioner) all my interest in all the property
described in the foregoing schedule, for $ -, being the valuation of
f
JUDICIAL EXTRATERRITORIAL RIGHTS.
121
-, &c., towards
court (to take effect whenever he shall recover judgment against me),
or to said P., my judgment creditor, &c., &c., for $
payment of my debt.
[If a part of the property only is to be assigned, say, after specifying
it, &c.] in payment of my debt, according to the valuation of court.
[Dated, signed, sealed, acknowledged and certified to.]
C.,
18-
Accepted.
(Signied)
P., Creditor.
32.
Consul's certificate to defendant or debtor of discharge, on disclosure or on
security.
P. against D.
United States consular court at C.,
18-
>
To Mr. D., of, &c.:
SIR: (Having made a satisfactory disclosure of your affairs), or hav-
ing given sufficient security to Mr. P., of, &c., petitioner, before this
court to-day, you are hereby forever discharged from arrest or imprison-
ment by reason of (describe the judgment and execution or petition).
(L. S.]
Y. Z.,
United States Consul.
33.
Consul's order of release. [Rule 25.1
P. against D.
United States consular court at C.,
18–
To thie officer :
SIR: In the name of the United States, forthwith release Mr. D., of,
&c., now in your custody (on petition) or judgment in favor of Mr. P.
(L. S.]
Y. 2.9
Uuited States Consul..
.
34.
Final judgment on trial.
P. against D.
>
United States consular court at C.,
18-
Having heard and tried the foregoing action in (contract), commenced
before this court, 18–, I adjudge that Mr. D., defendant, pay
Mr. P., petitioner,
dollars and
cents, in United States
silver money (debt), or damages, and dollars and
cents,
costs.
{L. S.]
Y. Z.,
United States Consul.
122
JUDICIAL EXTRATERRITORIAL RIGHTS.
35.
Defendant's offset statement. [Rule 26.) )
P. against D.
[Add to defendant's answer, No. 8] and D. also represents that P.,
the petitioner, is indebted to hiin piasters, being
dollars
and cents, according to the accompanying claim, which he de-
sires to file in offset to P.'s account, and to have the whole matter tried
together.
[Dated, signed, sworn to, and certified like No. 1.]
36.
Application for trustee process. [Rule 28.]
P. against D. and T., trustee.
To the United States consular court at C.:
P., of, &c., petitioner in said suit, represents that T., of O., a citizen
of the Únited States, is, as he is satisfied, indebted to D., defepdant, or
has effects, credits, means, or property of defendant in his hands and
possession, within the Turkish empire, which P. asks to have attached
in T.'s hands, and that T. may be summoned as D.'s trustee, and di.
rected to pay the same to P., for the following reasons :
State the reasons.]
Dated, signed, sworn to, and certified like No. 1.
37.
Order of notice to trustee.
2
:
P. against D. and T., trustee.
United States consular court at C.,
18-
To the officer :
SIR: Notify Mr. T., of C., a citizen of the United States, to appear
at the United States consulate at C., od day, 18-at
o'clock in the —noon, to file on oath his reasons why he should
not be adjudged trustee of Mr. D., of, &c., by serving him personally
with an attested copy of his application and of this order, at least five
days beforehand, making return of your service hereon under oath.
L. S.]
United States Consul.
38.
Y. Z.,
t
Common execution. [Rule 21.]
P. against D.
United States consular court at C.
To the officer :
Sir: Final judgment having been given by this court in favor of Mr.
P., of, &c., against Mr. D., of, &c., for dollars, and
cents,
JUDICIAL EXTRATERRITORIAL RIGIITS.
123
in United States silver money (debt), or damages, and
dollars,
cents, costs, dated -, 18—, you are required, in the name of
the United States of America, to collect the same, amounting to $
with interest at 12 per cent. a year from said date of judgment, and $ (1)
more for this (and another) execution, besides your legal fees; and, un-
less paid on demand, you are directed to seize any of his property within
the jurisdiction of this court that may be shown you by Mr P., and sell
sufficient thereof at public auction after due notice; and for want thereof
to arrest said debtor's person and bring him before this court, making
return hereon of all your acts within 30 days. Given under my hand
and the seal of the United States, this –
day of
A. D. 18—
and of the independence of the United States the
(L. S.]
Y. Z.,
United States Consul. .
39.
Trustee execution. [Rule 30.]
P. against D. and T., trustee.
United States consular court at 0.
To the officer :
SIR: Final judgment having been given by this court in favor of Mr.
P., of, &c., against Mr. D., of, &c., as principal defendant, for
collars, and cents (debt), or damages, and - dollars, and
cents, costs, and against Mr. T., of, &c., as trustee of Mr. D., for
dollars and -cents, all in United States silver money, dated
18—, you are required, in the name of the United States of
America, to collect the same, amounting to $ with interest at 19
per çent. a year from said date of judgment, and $ (1) more for this (and
another) execution, besides your legal fees; and unless paid by Mr. D.
on demand, to demand the same for the amount for which he is adjudged
trustee less his costs taxed at $ ] of Mr. T., within ten days after
said date of judgment; and if still unpaid, you are directed to seize any
of the principal defendant's property within the jurisdiction of this court
that may be shown you by Mr. P., and sell sufficient thereof at auction
after due notice; and for want thereof to arrest his person and bring
him before this court, or after ten days subsequent to your demand on
said trustee, to proceed in the same manner against his property and
person, making return (&c., like common execution No. 38).
40.
Replevin execution against defendant. Rule 32.
P. against D.
>
United States consular court at C.
Final judgment having been given by this court in favor of Mr. P., of,
&c., against Mr..D., defendant in replevin; for possession of the personal
property replevied by him, 184, and for his costs, taxed at
dated 18—, you are required [&c., like common execu-
tion, No. 387.
Also to deliver up to Mr. P. the accompanying bond, filed by him
18%, and cancelled by me.
Given [&c., like No. 38.]
2
1
124
.
JUDICIAL EXTRATERRITORIAL RIGHTS.
41.
Replevin execution against petitioner.
P. against D.
United States consular court at C.
To the officers :
SIR: Final judgment having been given by this court in favor of Mr.
D., of, &c., against Mr. P., petitioner in replevin, for a return of (all) or
a part of the personal property replevied from him 18%, and for
his costs, taxed at $ dated - 18- you are required, in the
name of the United States of America, to demand and receive of Mr.
P., the immediate return of said property, to wit: [schedule of property
returned) in as good condition as he received it, and payment of said
costs and interest at 12 per cent. a year and $ (1) more for this (and
another) execution, besides your legal fees.
Making return hereon [&c., as common execution No. 38].
1
42.
Appellant's petition. [Rule 42.]
D., appellant against P.
To the Minister Resident of the United States :
SIR: D., of, &c., a citizen of the United States, appeals from the judg-
ment of the United States consular court at O., given 18-
against him and in favor of P., of, &c., in a suit of contract) for (state
the judgment] because Mr. A., one of the associates, dissents from said
judgment, as appears by the record, and because [state your reasons.]
(Signed)
D.
C.,
184
2
{
United States consular court at C.,
184
SIR: Mr. D., appellant, having seasonably filed his appeal, with suffi-
cient security, I have allowed it, and now have the honor to transmit his
petition, with copies of all.the papers.
Y. 2.9
United States Consul.
To the Minister Resident of the United States of America near the Sub-
lime Porte, at Constantinople.
43,
Petition for new trial. Rules 44, 45.
D. against P.
To the United States consular court at O.:
D., of, &c., represents that he was defendant, or petitioner, in a suit
in contract) before this court, against P., of, &c. Îhat judgment was
JUDICIAL EXTRATERRITORIAL RIGHTS.
1
125
.
>
rendered against him for $, debt (or damage) and $ costs,
186– (and execution issued
18–).
(That W., a material interest for P., has since been proved to have
testified falsely on said trial touching a material point, affecting the
decision of the case). (If for other cause than perjury, state the reasons,
instead of the words in parenthesis.) Wherefore he asks for a new trial. .
[Dated, signed, sworn to, and certified like No. 1.]
44.
!
.
,
7
Grant of new trial.
D. against P.
United States consular court at C.,
18-
The foregoing petition of Mr. D. for a new trial of the suit in con-
tract) wherein judgment was given against him and in favor of Mr. P.
for $
(debt), and $
cost, 18%, is granted, and a
new trial of the suit ordered before this court, for the following reasons,
and on the following conditions:
Name them.]
L. S.
Y. Z.,
United States Consul.
18- Mr. D., having performed the foregoing conditions,
day, , 18–, is assigned for a new trial of the suit.
(L. S.]
Y. Z.,
United States Consul.
45.
Petition for habeas corpus. [Rule 47.]
P. against D.
To the United States consular court at C. :
P., of, &c., represents that he, or V., of, &c., is unlawfully deprived of
his liberty by D., of C., a citizen of the United States, at C., in Turkey,
and solicits relief.
[Dated, signed, sworn to, and certified like No. 1.]
46.
Writ of habeas corpus.
P. against D.
United States consular court at C.,
18-
To the officer :
SIR: Notify Mr. D., of, &c., a citizen of the United States, to appear
at the United States consulate at O., and to Bring with him Mr. P., of,
&c., if he has him in his custody or under his control, by serving Mr.
D. (personally) with an attested copy of the petition and of this order,
making return of your service hereon under oath.
(L. S]
United States Consul.
Y. Z.,
126
JUDICIAL EXTRATERRITORIAL RIGHTS.
i
47..
Execution in habeas corpus. (Rule 47. ]
P. against D.
2
United States consular court at C.,
18.
To the officer :
SIR: Final judgment having been given by this court in favor of Mr.
P., of, &c. (petitioner), in habeas corpus against Mr. D. for unlawfully
depriving him of his liberty at C., in Turkey, and for his costs, taxed at
$ in United States silver money, dated 18—, you are re-
quired in the name of the United States of America forthwith to set
Mr P. at liberty, and to collect [&c., like Cominon Execution No. 38).
48.
Decree for husband to advance money on libel for divorce. [Rule 50.]
7
L. against L., in divorce.
United States consular court at C., 18–
Ordered that Mr. L. pay into court within days
dollars
to enable his wife to prosecute her (or defend his) libel for divorce pend-
ing before me. (Also that he advance or secure to her dollars,
monthly, for her support, payable on the first day of each month during
the pendency of the libel, or until further order.)
[L. S.]
United States Consul.
Y. Z.,
49.
Certificate of divorce.
L. against L., in divorce.
United States consular court at O.
Upon the libel of Mr. or Mrs. L., of, &c., filed 18-, against
Mrs. or Mr. L., a full divorce was decreed by this court for [state the
cause), and the bond of matrimony dissolved, 18%, [Given, &c.,
like No. 38.]
2
50.
Criminal complaint. [Rule 61.]
United States of America against R.
To the United States consular court at C.:
C., of, &c., on oath complains that R., of C., a citizen of the United
States at C., in Turkey, on
unlawfully [state the offensel.
|Dated, signed, sworn to, and testifiedí, like No. i.)
JUDICIAL EXTRATERRITORIAL RIGHTS.
127
51.
Warrant to apprehend accused.
United States of America against R.
United States consular court at C.
To the officer :
SIR: In the name of the United States of America fortlıwith appre-
hend Mr. R., of, &c., a citizen of the United States, and bring him be-
fore me to auswer the complaint of Mr. C., charging him with the offense
of
at O.,
18—, for which this shall be your sufficient war-
rant. Given (&c., like No. 38).
52.
Warrant without complaint or information. [Rule 62.]
United States of America against R.
United States consular court at C.
To the officer :
SIR: Upon facts within my own knowledge, or which I have reason
to believe true, you are required, in the name of the United States of
America, forth with to apprehend Mr. R., of, &c., a citizen of the United
States of America, and to bring hiin before me to answer to a charge of
[&c., like No. 51).
53.
Warrant to apprehend witness refusing to appear when summoned in any
case. [Rules 12, 66.]
United States of America or P. against R.
United States cousular court at C.
To the officer:
SIR: In the name of the United States of America, forth with appre-
hend and bring before me Mr. W., of, &c., a citizen of the United States,
to testify in said case, and to explain his failure to appear and testify,
18%, as summoned.
For which, &c., like No. 38.]
54.
Bail bond in criminal case. [Rule 68.
United States of America against R.
In the United States consular court at 0.
We, R., of C., a citizen of the United States, as principal, and S., of
C., citizen of the United States, and T., of, &c., as sureties, acknowledge
ourselves jointly and severally responsible for the immediate personal
appearance of Mr. R. before this court whenever called for, and to pay
128
JUDICIAL EXTRATERRITORIAL RIGHTS.
to the United States consul at C., or his successor,
dollars on de
mand, for the use of the United States of America, whenever the consul
shall adjudge that said R. has failed to appear and answer to a criminal
prosecution
for pending against him before said court on com-
plaint of Mr. O., or to abide and fulfill any decree, order, or judgment of
court relative thereto. Witness our bands and seals at C.,
18-
[Signed, sealed, approved, and filed like replevin bond No. 4.
2
55.
Schedule of bail's property. [Rules 71, 72.]
United States of America against R.
To the United States consular court at C.:
I, B., of, &c., who offer myself as bail for R., a prisoner charged with
the offense of — before said court, solemnly swear that I am the
sole and unconditional owner and possessor of all the unincumbered
personal property named in the following schedule, worth at least
dollars.
(Schedule, date, signature, oath, and certificate like No. 31.
56.
Surrender of prisoner by bail. [Rule 74. ]
United States of America against R.
To the United States consular court at O.:
B., of, &c., a citizen of the United States, aşks leave to surrender R.,
of, &c., a citizen of the United States, charged with the offense of
before said court, whose bail he became
18-
(Signed)
Filed, petition granted, and prisoner committed.
(L. S.
Y. Z.,
United States Consul.
9
B.
57.
Execution for costs against informant, &c. [Rule 77.]
United States of America against R.
United States consular court at O.
To the officer :
SIR: Mr. Ci, of, &c., having filed a complaint or information under
oath in this court, ---, 18—, against Mr. R., of, &c., a citizen of the
United States, charging him with the offense of and Mr. R. har-
ing been tried' and honorably acquitted by me, and Mr. C.'s complaint
or information being, in my opinion, groundless and vexatious, origin-
ating in corrupt or vindictive motives, I have awarded judgment against
Mr. C. in favor of Mr. R. for dollars and cents, costs, in
United States silver money, dated
18%, You are therefore re-
quired [&c., like coinmon execution, No. 38).
JUDICIAL EXTRATERRITORIAL RIGHTS.
129
58.
Usual oath of witness. [Rule 79.]
You solemnly swear on the Holy Evangelists of Almighty Goil that
the evidence you shall give in the case now on trial (before the consul)
shall be the truth, the whole truth, and nothing but the truth.
So help you God.
59.
Oath of person examined by consul.
You solemnly swear that you will truly answer all questions pro-
pounded to you by the consul or his order.
So help you God.
60.
Oath to affidavit.
You solemnly swear that the foregoing -- - by you subscribed is
true.
So help you God.
61.
Interpreter's oath. [Rule 94.]
You solemnly swear that you will faithfully and impartially interpret
and translate whatever shall be submitted to you verbally or in writing
by the consul or his order upon this trial.
So help you God.
62.
Associate's oath. [Rule 104.
You solemnly swear that you will impartially discharge the duties of
associate in this trial before the United States consular court at O.
So help you God.
63.
Commitment for contempt. (Rule 105.]
United States of America against R.
United States consular court at C.
To the officer :
SIR: In the name of the United States, forth with commit Mr. R., of,
&c.,. to jail for (24) hours and collect of him $ (50) fine for his contempt
of this court and of the United States of America, committed to-day
in my presence in court (at the United States consulate) by [state the
substance of his acts). And if Mr. R. does not on demand pay said
fine and the costs, taxed at $ - with your legal fees, you will im-
prison him for 30 days more, for all which this shall be your sufficient
Warrant. Given [&c., like No. 38).
S. Mis. 899
:
130
JUDICIAL EXTRATERRITORIAL RIGHTS.
64.
Judgment on criminal proceeding.
United States of America against R.
United States consular court at
>
18–
Having heard and tried the foregoing complaint) or information
filed by Mr. C. 18–, I find Mr. R. guilty of the offense of
wherewith he is charged, having at C., in Turkey, on
unlawfully [state the substance of the offeuse proved) and I adjudge
and sentence him therefor to imprisonment and hard labor for
from this day, in the prison for American convicts in Turkey at Con-
stantinople, and that he be confined at hard labor in the at S.,
until removed to Constantinople.
[L. S.]
Y. Z.,
United States Consul.
Concurred in.
A., Associate.
B. Associate.
65.
Warrant of commitment on sentence.
United States of America against R.
United States consular court at C.
To the officer and to the keeper of the American prison :
In the name of the United States of America, forth with commit Mr.
R., of C., a citizen of the United States, to the prison for American con-
victs in Turkey at Constantinople, and safely keep him confined at hard
labor for
from the
day of
18—, in execution of
the sentence of this court against him of that date, for the offense of
of which he stands convicted. For all which this shall be your
sufficient warrant. [Given, &c., like No. 38.]
* 66.
Communication to foreign consulate. [Rule 109.]
Consular court of the United States of America at O.,
18-
2
To the honorable consulate of at 0.:
I have the honor to transmit the inclosed petition for other paper)
filed in this court (requesting that it may receive early attention).
I have the honor to assure you of my high respect and regard.
Your obedient servant,
Y. Z.,
United States Consul.
2
JUDICIAL EXTRATERRITORIAL RIGHTS.
131. .
67.
Petition of American citizen against foreign defendant.
7
P., American citizen against D., subject of
To the consular court of the United States at O.:
P., of C., a citizen of the United States, represents that Mr. D., of C.,
subject of is indebted to him (piasters), according to the
accompanying account, payment whereof has been demanded and with-
held. P., therefore, asks that two attested copies of this petition and
account be communicated to the consulate of at C., and that said
D. may be compelled forth with to pay him said amount, interest, costs,
and expenses occasioned by his delinquency. And P. is ready to com
ply with any order of this court or of the consulate of at C.
18%
(Signed)
UNITED STATES CONSULAR COURT. AT O.,
18-
Filed.
United States Consul.
.68.
Com
>
P.
7
Y. Z.,
2
:
Commission to commissioners.. [Rule 111.]
P., subject of against D., American citizen.
To Messrs. C., of D., citizen of the United States, O., of C., subject of ———
and M., subject of ---
GENTLEMEN: You having been duly nominated, and being approved
by me, as members of a inixed commission upon the petition of Mr. P.,
of, &c., against Mr. D., of, &c., dated 18-, filed in the consulate
and transmitted to this court by copy, are hereby commissioned
with full power to hear, and a majority of you to decide, the case. Mr.
C. is appointed your chairman and will preside at all your sessions, his
presence being essential to your proceedings, which will be conducted
as nearly as may be as in suits tried in this court. You will give due
notice to each party of the time and place of each of your sessions, and
you will proceed notwithstanding the absence of either without good
You will patiently l&c., like Commission to Referees, No. 12).
2
cause.
69.
Officer''s return of service on execution.
P. against D.
To the United States consular court at C.;
I have to-day served the within execution on Mr. D. at C., by (State
accurately the mode of service, giving a concise account of your pro-
ceedings and their results].
[If the execution has been paid or settled, be careful to add :) And I
accordingly return the execution fully satisfied, with all my fees.
If only a part has been paid, say: And I accordingly return the exe-
cution satisfied in part, to wit, the amount of
dollars and
cents, 18%
0., Offic.?.
[Add a detailed account of your fees and disbursements.
132
JUDICIAL EXTRATERRITORIAL RIGHTS.
70.
Officer's return of execution unserved.
P. against D.
To the United States consular court at 0.:
Being unable to find the person or property of Mr. D., I return the
within execution which I received for service, ,18%, wholly un-
Satisfied.
18.
0., Officer.
C.,
71.
Officer's return of service on warrant.
United States of America against R.
To the United States consular court at 0.:
I have to-day arrested Mr. R., at C., and now have him before the
court as directed.
C.-18
..
[Add detailed account of your fees and disbursements.]
TABLE OF COSTS AND FEES.
COURT FEES.
-
$1 00
50
1 00
50
1 00
.
Filing petition
Filing answer.
Communication of any paper through dragoman
Communication of any paper through court
Setting down case for hearing, including notices.
Hearing fee, including judgment-
In cases under $100.
In cases from $100 to $1,000
In cases above $1,000.
In cases seeking judicial relief, but not money.
Execution
Commissions to referees, commissioners, &c. ,
Summous for witness.
Administering oath in court.
Filing any paper
Copy of any paper
And if exceeding 250 words, for each 100 words
Certificate..
Commission on money or valuables deposited, 2 per cent.
Warrant
Searching records, ordinarily
Recognizance, or discharging
Appi!oving bond, or other paper.
Recording marriage
2 00
5 00
8 00
5 00
1 00
1 00
50
25
25
50
20
50
50
50
50
25
1 00
.
1
.
0
JUDICIAL EXTRATERRITORIAL RIGHTS.
133
Certificate of marriage
$1 00
Recording birth..
25
Official travel, each mile.
10
(Also all actual certified expenses.)
Adjournment fee...
25
Any decree or order
25
Interpreter, each day..
2 50
Attendance of dragoman on Turkish tribunal, or elsewhere, each
day, from $2.50 to...
5 00
Filing agreement to settle
No fee.
Registration of citizen
. No fee.
Recording death ..
No fee.
Seamen, in civil cases, at discretion of consul, to pay.
No fee.
Any other fees as in United States courts.
COSTS FOR PREVAILING PARTY.
A general fee in each case, of
$5 00
In cases above $500, 1 per cent. on the amount recovered (if
defendant prevails, on amount sued for).
Necessary travel, each mile
10
Necessary attendance at court, each day.
2 00
All necessary court and witness fees, &c., actually paid out.
FOR MARSHAL OR OFFICER.
1 00
Service of execution..
Also, on the first $100 collected, a commission of 5 per cent. ; ou
the second $100, 4 per cent.; on the third, 3 per cent.; on the
fourth, 2 per cent.; and beyond $400, 1 per cent.
Civil arrest.
Arrest on criminal warrant.
Bringing up or remanding prisoner
Service of any other paper.
Official travel, each mile
Also any reasonable sum actually and necessarily paid to aid or
for expenses.
Other services as in United States courts.
1 00
1 00
50
50
10
MISCELLANEOUS.
3 00
3 00
5 00
Associates on consular trial, each day.
Assignees in bankruptcy, each public meeting,
Surveyors ...
Referees and commissioners, $3 for each day, or the fee customary
at consulates of other nations.
Official travel of the foregoing officials, each mile..
10
134
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX IX.
REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED
STATES IN JAPAN.
Regulations for the consular courts of the United States of America in
Japan, 1870.
LEGATION OF THE UNITED STATES OF AMERICA IN JAPAN,
November 16, 1870.
Notice is hereby given that the within regulations are in force from
this date.
(U. S. LEGATION SEAL.]
C. E.
Minister Resident.
REGULATIONS FOR THE CONSULAR COURTS OF THE UNITED STATES
OF AMERICA IN JAPAN.
In pursuance of section 5 of the act of Congress approved June 22,
1860, entitled "An act to carry into effect certain provisions in the
treaties between the United States, China, Japan, Siam, Persia, and
other countries, giving certain judicial powers to ministers and consuls,
or other functionaries of the United States in those countries, or for
other purposes," I, O. E. De Long, minister resident of the United
States to the empire of Japan, do hereby decree the following rules and
regulations, which shall have the force of law in the consular courts of
Japan.
1. Every citizen of the United States, residing within the limits of
the ports open to foreign trade in the empire of Japan, is required to be
enrolled in the consular register; and shall apply in person at the con-
sulate, within thirty days after the publication of notice of this decree.
Every American citizen who may arrive within the limits of a port,
save and except one who may be enrolled on the muster-roll of an
American vessel, sball apply within ten days at the consulate to be en-
rolled. Any American citizen neglecting to be so enrolled will not be
to claim the protection or intervention of the authorities, unless
he can furnish a valid reason for not doing so, and shall be subject to
a fine of ten dollars.
2. In all cases when an applicant to be enrolled cannot furnish a
passport or other legal proof of his citizensbip, he shall make an affida-
vit in writing that he is a citizen of the United States, which shall be
filed by the consul, and the consul inay also require other and further
proof of the fact before enrolling him.
CIVIL PROCEEDINGS.
1. All civil actions in courts of the United States in Japan must be
commenced by a complaint or petition in writing, verified by the oath
of the party, his agent or attorney, before the judge of such court.
2. There shall be but one form of civil action for the enforcement or
protection of private rights, and the redress or prevention of private
wrongs. In such action, the party complaining shall be known as the
plaintiff, and the adverse party as the defendant.
JUDICIAL EXTRATERRITORIAL RIGHTS.
135
3. Every action shall be prosecuted in the name of the real party in in-
terest, except as otherwise provided in this decree.
4. In case of an assigument of a thing in actiou: the action by the as-
signee shall be without prejudice to any set-off or other defense existing
at the time of or before notice of the assignment; but this section shall
not apply to a negotiable promissory note or bill of exchange transferred
in good faith, and upon good consideration before due.
5. When a married woman is a party, her husband shall be joined
with her, except when the action concerns. her separate property, or
when the action is between herself and her husband, when she may sue
or be sued alone.
6. When an infant is a party, he shall appear by guardian, who may
be appointed by the court, if none has already been appointed at the
time.
7. All persons having an interest iu the subject of the action may be
joined as plaintiffs; and any person who has or claims to have an in-
terest in the controversy adverse to the plaintiff, or who is a necessary
party to a complete determination or settlement of the question involved
therein, may be made a defendant.
8. Persons severally liable upou the same obligation or instrument,
including the parties to bills of exchange and promissory notes, and
sureties on the same or separate instruments, may all or any of them be
included in the same action, at the option of the plaintiff.
9. An action shall not abate, by the death or other disability of a
party, or by a transfer of any interest therein, if the cause of action sur-
vive or continue; but, in case of the death or disability of a party, the
action may be continued by or against his representative or successor in
interest, or the court may allow the person to whom the transfer is
made to be substituted in the action.
10. Actions shall be brought: and may be tried in the port or city
wherein one or more of the parties to the action resides, or wherein the
cause of controversy accrued, subject to the power of the court to change
the place of trial, when the convenience of witnesses and the ends of
justice would be promoted thereby, or when, from any cause, the judge
is disqualified from acting in the action.
11. The complaint shall be at once filed by the court, with a specifica-
tion of the day, month, and year when the same was received for filing;
and at any time within one year thereafter summons may be issued
thereon as desired by the plaintiff. The summons shall be signed by
the courti
, directed to the defendant, and issued under the seal of the
court. It shall state the parties to the action, the court in which it is
brought, the general nature of the action, and require the defendant to
appear and answer the complaint, within the time mentioned in the next
section, after the service of summons, exclusive of the day of service;
or that a judgment by default will be taken against him according to
the prayer of the complaint, stating the sum of money or other relief de-
manded in the complaint; but the court, in all cases when the default
of one or all of the defendants is entered, shall require proof to be made
in support of the plaintiff's cause of action, and shall only allow a judg-
ment for such relief as the evidence offered shows the plaintiff to be en-
titled to.
12. The time in which the summous shall require the defendant to
answer the complaint shall be as follows:
1st. If served on the defendant in the port or city wherein the action
is brought, within three days.
2d. If elsewhere within the empire of Japan, within twenty days; or,
136
JUDICIAL EXTRATERRITORIAL RIGHTS.
2.
3d. If without said empire, within forty days. The court may for good
cause shown, at any time within six months from the date of entry of
any judgment by default, vacate, and set the same aside.
13. The summons shall be served by the marshal to whom it is di-
rected, or by some person specially deputed by him, or by the court;
and it shall be returned, with the written certificate of such person,
showing where, when, and upon whom it was served. If the defendant
can be found, service shall be made by delivering to him a copy thereof.
If the suit be against a corporation, by delivery of a copy to the presi-
dent, secretary, or other managing agent thereof. If against a minor,
by delivery of a copy to such minor, and also to bis father, mother, or
other guardian, if he have such, residing in the empire. And if against
a person judicially declared to be of unsound mind, and for whom a
guardian has been appointed, by delivery of a copy to such guardian;
provided, that, when the person on whom service is to be made resides
out of the empire of Japan, or has departed therefrom, or cannot after
due diligence be found therein, or conceals himself to avoid the service
of summons, and such facts be made to appear to the satisfaction of the
court, service may be made by publication of the summons in some
newspaper, if there be one, published at the port or the city wherein
the action is brought; but if there be none, in a newspaper published
the nearest to said port, for such length of time, and in such manner
as the court may direct; not less, however, than once a week for the
period of three weeks. Proof of service of summons so made shall be by
the affidavit of the printer or publisher of such newspaper. The volun-
tary appearance of the defendant shall in all cases be deemed equiva-
lent to a personal service upon him of the summons, and a person shall
be cleemed to appear when he answers or demurs to the complaint in
writing, or files a written and verified statement in the action confessing
plaiutiff's right of action, or some portion thereof, and consenting that
judgment for such amount be entered.
14. The pleadings on the part of the plaintiff shall be limited to a
complaint or petition, and a demurrer to the defendant's answer; and
on the part of the defendant, to a demurrer and answer to plaintiff's
complaint; provided, however, that the defendant may in his answer
claim affirmative relief against the plaintiff, and all matters contained
in the defendant's answer shall be deemed to be denied by the plaintiff
unless specially admitted by him. The pleadings shall concisely state
the cause of action or defense, with a prayer for the relief asked for, and
all answers, except demurrers raising issues of law alone, shall be verified
as the complaint and petition are required to be. All pleadings shall
be filed by the court, with a note of the day, month, and year, and if a
defendant in his answer prefer a cross demand, or other affirmative re-
lief against the plaintiff, the plaintiff shall be allowed, if he require it,
the same length of time in which to prepare for the trial of the cause as
that which the defendant was allowed for answering in the case after
service of the summons upon him.
15. A pleading may be demurred to if upon its face it shows that the
court has no jurisdiction over either of the parties, or the cause of ac-
tion; or that the plaintiff has not the legal capacity to sue, or that there
is a defect of parties, or an improper joinder of several causes of ac-
tion, or that no cause of action or defense is stated in the pleading.
The demurrer must distinctly state the grounds upon which it is based,
and in case a demurrer to a pleading is sustained, the court shall in all
cases allow the party against whom the judgment on demurrer is ren-
dered a reasonable length of time in which to amend, serve, and file his
JUDICIAL EXTRATERRITORIAL RIGHTS.
137
amended pleadings. All material allegations contained in the com-
plaint, and not denied specifically in the answer thereto, shall be con-
sidered as admitted.
16. The cross-demand mentioned in section fourteen shall be one ex-
isting in favor of the defendant or plaintiff, and against a plaiutiff or
defendant between whom a several judgment might be had in the ac-
tion, and arising out of one of the following causes of action :
1st. A cause of action arising out of the transaction set forth in the
complaint or answer as the foundation of the plaintiff's claim, or de-
fendant's defense, or copnected with the subject of the action.
2d. In an action arising upon a contract, any other cause of action
arising also upon contract and existing at the time of the commence-
ment of the action.
17. It shall not be necessary for a party to set forth in a pleading the
items of the account therein alleged, but he shall deliver to the adverse
party, within three days after demand thereof, in writing, a copy of the
account, or he may be precluded from giving evidence thereof.
18. The plaintiff may unite several causes of action in the same com-
plaint, when they all arise out of,
1st. Contracts express or implied..
2d. Claims to cover specific real property, with or without damages
for waste or detention thereof, and the rents and profits of the same.
3d. Claims to cover specific personal property, with or without dam-
ages for the detention thereof.
4th. Injuries to character, person, or to property ; but the causes of
action so united shall all belong to one only of these causes of action,
and shall affect all of the parties to the action, and not require different
places of trial, and be distinctly and separately stated.
19. The court may in furtherance of justice allow amendments to
pleadings by adding or striking out the name of a party, or by correct-
ing a mistake in the name of a party, or any other mistake; it may also
enlarge the time for filing an answer or demurrer, or a demurrer to an
answer, or relieve a party from a judgment obtained against bim by
fraud, or through his mistake, inadvertence, surprise, or excusable neg.
lect.
20. If the defendant appears and answers, the court having both
parties before it, shall, before proceeding further, encourage a settle-
ment by mutual agreement or by submission of the case to referees
agreed on by the parties; a finding by a majority of whom shall decide
the case, and be entered as a judgment by the court, subject to appeal
or motion for a new trial, as in cases of other judgments, and upon
similar grounds.
21. On application of either party and on advance of the fees, any
American citizen residing in the empire of Japan may be compelled to
attend as a witness upon any court in the empire, and may be compelled
to bring with him, and produce in such court, all necessary books, papers,
&c., in his possession or under his control.
22. An order to arrest the defendant in a civil action may be made by
the court in which the action is brought, or is pending, whenever it
shall be made to appear to the satisfaction of the court, by an affidavit
in writing, that the defendant is about to depart from the empire with
the intent to defraud his creditors; or that the defendant has, while
acting in either an official, fiduciary, or professional character, embezzled
or fraudulently misapplied, or converted to his own use, moneys or
property of his principal; or when the action is to recover the possession
of personal property, when the property or any portion thereof has been
138
JUDICIAL EXTRATERRITORIAL RIGHTS.
concealed, removed, or disposed of so thatit cannot be found, or taken pos-
session of by the marshal; or when the defendant has been guilty of a
fraud, in contracting the debt or incurring the obligation for which the
action is brought; or in concealing or in disposing of the property, for the
taking, detention, or conversion of which the action is brought; or when
the defendant has removed or disposed of his property or is about to
do so, with intent to defraud his creditors. Before making the order, the
court shall require the plaintiff to enter into an undertaking, with two
sureties, citizens of the United States, and residents of the empire of
Japan, in a sum of not less than five hundred dollars, conditioned to
pay the defendant such cost and damage as he may sustain by reason
of the arrest if judgment be in his favor, not exceeding the amount
mentioned in the bond. The sureties shall justify on the bond, by affi-
davit showing that they are American citizens, residents of the empire,
and worth the sum mentioned in the undertaking, which bond shall be
at once filed by the court.
23. The order may be made at any time after the summons is issued;
it shall be directed to the marshal, and shall direct him to arrest the
defendant, and to hold him to bail in a specified sum, and return the
order within a time specified to the court that issued it. A copy of the
affidavit and order of arrest shall be delivered to the marshal, who,
upon arresting the defendant, shall deliver unto him a copy of each;
and shall execute the order by arresting the defendant, and holding him
in custody until he shall be discharged according to law.
24. The defendant at any time before execution shall be discharged
from arrest, either upon giving bail in the amount stated in the order
of arrest, with two sureties, citizens of the United States, who shall jus-
tify as such on said bond, and to the further effect that they are residents
of the empire of Japan, and worth respectively the amount stated in the
order; conditioned that the defendant will at all times render himself
amenable to the process of the court, during the pendency of the action,
and to the execution of the judgment therein; or that he will pay the
plaintiff any judgment that may be recovered in said action; or the de-
fendant may be discharged from arrest by depositing with the court
the amount of money mentioned in the order of arrest.
25. In an action brought to recover specific personal property, if the
plaintiff make and file with the court, at any time before the defendant
appears and answers in the action, au affidavit showing that he, the
plaintiff, is the owner or entitled to the possession of the property (par-
ticularly describing it), that the property is unlawfully detained by the
defendant, the value thereof, the cause of the detention to the best of his
knowledge, and that the saine has not been taken or seized by process
issued out of any court, he shall be entitled to claiin the delivery to him-
self of such property as hereinafter provided.
26. The plaintiff or his attorney may, by indorsement in writing on
such affidavit, require the marshal to deliver the property therein men-
tioned to him, and it shall be the duty of the marshal to whom the same
is directed, upon receipt of the affidavit and votice, with a sufficient un-
dertaking executed by the plaintiff with two or more sufficient sureties,
to be approved by the marshal, to the effect that they are bound to the
defendant in double the value of the property. as stated in the affidavit,
for the prosecution of the action, for the return of the property to the de-
fendant, if return thereof be adjudged, and for the payment to him of such
sum as may for any cause be recovered against the plaintiff, the marshal
shall forth with take the property into his possession, if he find it in the
possession of the defendant, or his agent, and he shall also without de-
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
139
lay serve on the defendant a copy of the affidavit, notice, and under-
taking, by delivering the same to him personally if he can be found, but
if he cannot be found, by leaving the same at his usual or last place of
residence.
27. At any time before the delivery of the property to the plaintiff,
the defendant may require the return thereof, upon giving to the mar-
shal a written undertaking executed by two or more sufficient sureties,
to be approved by the marshal, to the effect that they are bound in dou-
ble the value of the property as stated in the affidavit of the plaintiff,
for the delivery thereof to the plaintiff, if such delivery be adjudged;
and for the payment to him of such sum as may for any cause be recov-
ered against the defendant. If a return of the property be not so re-
quired within three days after the service of the notice on the defend-
ant and the taking of the property, it shall be delivered to the plain-
tiff, unless it be claimed by some third person, in which case the mar-
sbal must at once notify the plaintiff of such claim; and unless the
plaintiff, within two days thereafter, give to the marshal an uudertak-
ing, with two sufficient sureties in double the value of the property so
claimed as stated in the affidavit, conditioned to save him, the marshal,
harmless against any cost or damages he may be put to by said claim-
ant, if he holds the same or delivers it to the plaintiff
, he, the marshal,
may surrender such property to the said claimant.
28. In all cases, sureties, to be sufficient on any undertaking, must, by
affidavit attached to such undertaking, aftirm on oath that they are citi
zens of the United States, residents of the empire of Japau, and worth
respectively the sum for which they therein binıl themselves in property
situated in said empire, not exempt from execution, and over and above
all of their just debts and legal liabilities.
וג
INJUNCTION.
C
29. An injunction is a writ or order, requiring a person to refrain
from a particular act. This order or writ may be granted by the court
in which an action is brought, when it shall appear that the plaintiff is
entitled to the relief demanded, and such relief, or any part thereof,
consists in restraining the commission or continuance of the act com-
plained of, or when it shall appear that the commission or continuance
of some act during the litigation would produce great or irreparable in-
jury to the plaintiff, or when it shall appear that the defendant is do-
ing, or theatens, or is about to do, or is procuring or suffering to be done
some act in violation of the plaintiff's rights, respecting the subject of
the action, and tending to render the judgmentineffectual.
30. The' injunction may be granted at the time of issuing the sum-
mous, or at any time afterward, before judgment is rendered in the ac-
tion; before issuing which, however, the court shall require (except
when the people of the United States are a party plaintiff) a written un-
dertaking on the part of the plaintiff, with two or more sufficient secu-
rities, to the effect that the plaintiff
' will pay to the party enjoined such
damages, not exceeding an amount to be specified, as such party may
sustain by reason of the injunction, if the court shall finally decide that
the plaintiff was not entitled thereto.
31. The party against whom an injunction is granted may, upou notice
to the opposite party, move the court that it be dissolved or modified,
and upon the hearing the court may consider the application solely upon
the pleadings on file, or may allow the parties respectively to file affi-
davits; and if it satisfactorily appears that there is not sufficient ground
140
JUDICIAL EXTRATERRITORIAL RIGHTS.
for the injunction it shall be dissolved, or it may be modified if it
appears that the extent of the writ granted is too great.
ATTACHMENT.
32. The plaintiff at the time of the issuance of summons, or at any
time afterward, may have the property of the defendant attached as se-
curity for the satisfaction of any judgment that may be recovered, unless
the defendant give security to pay such judgment as hereinafter pro-
vided, in the following cases :
1st. In an action upon a contract, express or implied, for the direct
payment of money, which contract is not secured by a mortgage, lien, or
pledge upon real or personal property, or, if so secured, that such se-
curity bas been rendered vugatory by the act of the defendant.
21. In an action upon a contract, express or implied, against a defenil-
ant not residing in this empire.
:33. The court shall issue the writ of attachment upon receiving all
affidavit, by or on behalf of the plaintiff, wbich shall be filed, showing-
1st. That the defendant is indebted to the plaintiff (specifying the
amonut of such indebtedness over and above all legal set-offs as counter-
claims) upon a contract, expressed or implied, for the direct payment of
money, and that the payment of the same has not been secured by any
mortgage, lien, or pledge upon real or personal property; or,
20. That the defendant is indebted to the plaintiff (specifying the
amount) over and above all legal set-ufts or couuter-claims, and that the
defendant is a non-resident of this empire; and,
3d. That the sum for which the attachinent is asked is an actual, bond
fide, existing debt, due and owing froin the defendant to the plaintiff.
34. Before issuing the writ the court shall require a written under-
taking on the part of the plaintiff, in a sum 110t less than one-half of
por exceeding the amount claimed by the plaintiff, with sufficient sure-
ties, to the effect that the defendant recover judgment, the plaintiff will
pay all costs that may be awarded to the defendant, and all damages
which he inay sustain by reason of the attachment, not exceeding the
sum specified in said undertaking.
35. The writ shall be directed to the marshal of the consulate within
the jurisdiction of which the property of such defendant may be, and
shall require him to attach and safely keep all the property of such de-
fendant within said consular jurisdiction, not exempt from execution, or
so much thereof as may be sufficient to satisfy the plaintiff's demand
(the amount of which shall be stated as in the complaint in the action),
unless the defendant give him security by the undertaking of at least
two sufficient sureties, in an amount sufficient to satisfy such demand,
besides costs, or in an amount equal to the value of the property which
has been or is about to be attached, in which case, to take such under-
taking, several writs may be issued at the same time, to different mar-
shals of different consulates.
* 36. The rights or shares which the defendant may have in the stock
of any corporation or company, together with the interest and profit
thereon, and all debts due such defendant, and all other property
in this empire of such defendant, not exempt from execution, may be
attached, and, if judgment be recovered, be sold to satisfy the judgment
and execution.
37. The marshal to whom the writ is directed and delivered shall ex-
ecute the same without delay, and if the undertaking mentioned in sec-
tion 35 be not given, as follows:
1st. Real property, or any interest in or right of possession thereto, of
JUDICIAL EXTRATERRITORIAL RIGHTS.
141
which the defendant may be the owner and in the possession, shall be
attached by leaving a copy of the writ with the occupant thereof, or, if
there be no occupant, by posting a copy of the writ in a conspicuous
place thereon, and filing a copy, together with a description of the
property attached, with the United States consul at that port. If the
saine shall not be in the possession of the defendant, but in that of some
other person, the same shall be attached by leaving with such person,
or his agent, a copy of the writ, and a notice that such real property
(giving a description thereof), and any interest therein, belonging to
the defendant is attached pursuant to such writ, and posting a copy of
said writ and notice in a conspicuous place on said property, and filing
a copy of such notice and writ with the United States consul for that
jurisdiction.
2d. Personal property capable of manual delivery shall be attached
by taking it into custody.
3d. Stock or shares, or interest in stock or sbares of any corporation
or company, shall be attached by leaving with the president, secretary,
cashier, or other managing agent thereof, a copy of the writ, and a no-
tice stating that the stock or interest of the defendant is attached in
Pirsuance of such writ.
4th, Debts and credits, and other personal property not capable of
manual delivery, shall be attached by leaving with the persou owing
such debts, or having in his possession, or under his control, such credits,
or other personal property, or with his agent, a copy of the writ, and a
notice that the debts owing by him to the defendant, or the credits and
other personal property in his possession or under his control, belonging
to the defendant, are attached in pursuance of such writ.
38. Upou receiving information in writing from the plaintiff, or his
attorney, that any person has in his possession or under his control any.
credits or other personal property belonging to the defendant, or is owing
any debt to the defendant, the marshal shall serve upon such person a
copy of the writ, and a notice that such credits or other property or
debts, as the case inay be, are attached in pursuance of such writ.
39. All persons having in their possession or under their control any
credits or other personal property belonging to the defendant, or owing
any debts to the defendant at the time of service upon them of a copy
of the writ and notice, as provided in the last two sections, shall be,
unless such property be delivered up or transferred, or such debts be
paid to the marshal, liable to the plaintiff for the amount of such cred-
its, property, or debts until the attachment be discharged, or any judg:
ment recovered by him be satisfied.
40. Any person (a citizen of the United States) owing debts to the
defendant, or having in his possession or under his control any credits
or other personal property belonging to the defendant, may be required
to attend before the court, and be examined on oath respecting the
The defendant.may also be required to attend, for the purpose
of giving information respecting his property; and may be examined on
oath. The court inay, after such examination, order personal property
capable of manual delivery to be delivered to the marshal on such
terms as inay be just, having reference to any liens thereon or claims
against the same; and a memorandum to be given of all other personal
property containing the amount and the description thereof.
41. The marshal shall make a full inventory of the property attached
and return the same with the writ. To enable him to make such return
as to debts and credits attached, he shall request, at the time of service,
the party owing the debt or having the credit to give him a memoran-
same.
;
142
JUDICIAL EXTRATERRITORIAL RIGHTS.
dum stating the amount and description of each, and if such memoran-
dum be refused, he shall return the fact of the refusal with the writ.
The party refusing to give the memorandum (if a citizen of the United
States) may be required to pay the costs of any proceedings taken for
the purpose of obtaining information respecting the amounts and de-
scription of such debt or credit.
42. If any property attached be perishable the marshal may sell the
same in the manner in which such property is sold on execution. The
proceeds and other property attached by him shall be retained by him
to answer another judgment that may be recovered in the action unless
sooner subjected to execution upon another judgment recovered previous
to the issuing of the attachment. Debts and credits attached may be
collected by him if the same can be done without suit. The marshal's
receipt shall be a sufficient discharge for the amount paid.
43. If any personal property attached be claimed by a third person
as his property, the marshal shall notify the plaintiff, or his attorney,
of the amount, value, and nature thereof, and by whom claimed, and if
within two days after such notice is given the plaintiff fail to indem-
nify the marsbal by giving him a good and sufficient bond in double the
value thereof, with two sufficient securities, securing him against any
cost or loss that he may be put to by holding the same as the property
of the defendant, he may release the same to the said claimant, reciting
what he has done relative thereto in his return upon the original writ.
44. If the plaintiff recovers a judgment, the marshal shall satisfy the
same out of the property attached by bim which has not been delir-
ered to the defendant or a claimant, as herein before provided, or sub-
jected to execution on another judgment recovered previons to the
issuing of the attachment, if it be sufficient for that purpose-
1st. By paying to the plaintiff the proceeds of all sales of perishable
property sold by him, or of any debts or credits collected by liim, or so
much as shall be necessary to satisfy the judgment.
2d. If any balance remain due and an execution shall have been is-
sued on the judgment, he shall sell, under the execution, so much of
the property, real or personal, as may be necessary to satisfy the bal-
ance, if enough for that purpose remains in bis hands. Notices of the
sale shall be given, and the sale conducted as in other cases of sales on
execution.
45. If, after selling all the property attached by him remaining in his
hands, and applying the proceeds, together with the proceeds of any
debts or credits collected by him, and deducting his fees, to the pay
ment of the judgment, any balance shall remain due, the marshal shall
proceed to collect such balance as upon an execution in other cases.
Whenever the judgment shall bave been paid, the marshal, upon rea-
sonable demand, shall deliver over to the defendant the attached prop-
erty remaining in his hands, and any proceeds of the property attached
unapplied on the judgment.
46. If the execution remain unsatisfied, in whole or in part, the plain-
tiff may prosecute any undertaking given by the defendant pursuant
to this chapter of this decree; or be may proceed as in other cases uponi
the return of an execution.
47. If the defendant recover judgment against the plaintiff, any un-
dertaking received in the action, all of the proceeds of sales, and
money collected by the marshal, and all of the property attachéil re-
maining in the marshal's hands, shall be delivered to the defendant, or
his agent, the order of attachment shall be discharged and the property
released therefrom.
JUDICIAL EXTRATERRITORIAL RIGHTS.
143
48. Whenever the defendant shall have appeared in the action, he
may, upon reasonable notice to the plaintiff, apply to the court in which
the action is pending for an order to discharge the attachment, wholly
or in part, and upon the execution of the undertaking mentioned in the
next section such order may be granted, releasing from the operation
of the attachment any or all of the property attached; and all of the
property so released, and all of the proceeds of the sales thereof, shall
be delivered to the defendant, upon the justification of the sureties on
the undertaking, if required by the plaintiff.
49. Before granting such order the court shall require an undertaking
on behalf of the defendant, by at least two sureties, American citizens
residents of Japan, to the effect, that in case the plaintiff recover a
judgment in the action, defendant will, on demand, redeliver such prop-
erty attached, so released, to the proper officer, to be applied to the
payment of the judgment, and that in default thereof, the defendant
and sureties will on demand pay to the plaintiff the full value of the
property so released. The court granting such release shall fix the sum
for which the undertaking shall be given, and if necessary, in fixing the
sum, to know the value of the property released, the saine may be ap-
praised by three disinterested persons appointed for the purpose. The
sureties may be required to justify before the court, and the property
attached shall not be released from the attachment without their justi-
fication, if the same be required.
50. The defendant may also at any time before the time for answering
expires, apply, on motion, upon reasonable notice to the plaintiff, to the
court in which the action is brought that the attachment be discharged,
on the ground that the writ was improperly or irregularly issued.
51. When the motion is made upon affidavits on the part of the de-
fendant, but not otherwise, the plaintiff may oppose the same by affida-
vits, or other evidence, in addition to those on which the attachment
was made. If upon such application it shall satisfactorily appear that
the writ of attachment was improperly or irregularly issued, it shall be
discharged.
52. The marshal shall return the writ of attachment with the sum-
mons, if issued at the same time, unless the court otherwise direct; in
all other cases within twenty days of its issuance, and receipt by him,
with a certificate of his proceedings indorsed thereon.
1
DEPOSIT IN OOURT.
53. When it is admitted by the pleading or examination of a party,
that he has in his possession or under his control any money or other
thing capable of delivery, which, being the subject of the litigation, is
held by him as trustee for another party, or which belongs or is due to
another party, the court may order the same, upon motion, to be depos-
ited in court or delivered to such party upon such conditions as may be
just, subject to the further direction of the court.
54. A receiver may be appointed by the court in which an action is
pending:
1st. Before judgment, provisionally, on the application of either party,
when he establishes a prima facie right to the property, or to an interest
in the property, which is the subject of the action, and which is in the
possession of an adverse party, and the property or its rents and profits
are in danger of being lost or materially injured or impaired.
2d. After judgment, to dispose of the property according to the judg-
ment, or to preserve it during the pendency of an appeal; and,
144
JUDICIAL EXTRATERRITORIAL RIGHTS.
3d. In such other cases as are in accordance with the practice of
courts of equity jurisdiction.
OF TRIAL AND JUDGMENT.
55. A judgment is the final determination of the rights of the parties
in the action or proceeding.
56. Judgment may be given for or against one or more of several
plaintiffs or defendants, and it may, when the justice of the case re-
quires it, determine the ultimate rights of the parties, on each side, as
between themselves.
57. In an action against several defendants, the court may, in its dis-
cretion, render judgment against one or more of them, leaving the action
to proceed against the others whenever a several judgment is proper.
58. The relief granted to the plaintiff, if there be no answer, shall
not exceed that which he shall have demanded in his complaint; but in
any other case the court may grant him any relief consistent with the
case made by the complaint; and embraced within the issue,
59. An action may be dismissed, or a judgment of non-suit entered,
in the following cases :
1st. By the plaintiff himself at any time before trial upon the pay-
ment of costs, if a counter-claim has not been made; if a provisional
remedy has been allowed, the undertaking shall thereupon be delivered
by the clerk to the defendant who may have bis action thereon.
2d. By either party, upon the written consent of the other.
3d. By the court when the plaintiff fails to appear on the trial, and
the defendant appears and asks for the dismissal.
4th. By the court when upon the trial, and before the final submission
of the case, the plaintiff abandons it.
5th. By the court, upon motion of the defendant, when upon the trial
the plaintiff fails to prove a sufficient case. A judgment of dismissal
shall in all cases be entered in the court's docket and judgment book.
60. In all other cases judgment shall be rendered upon the merits.
61. Judgment may be had if the defendant fail to answer the com-
plaint, as follows:
1st. The court in any action, if no answer has been filed with it within
the time specified in the summons, or within such further time as may
have been granted upon application of the plaintiff, or his attorney, shall
enter the default of the defendant, and immediately thereafter enter
judgment; but before entering judgment in the case, the court shall
require proof to be made by the plaintiff, and shall enter such judgment
only as the evidence under the pleadings will justify; and when the
amount demanded in such a case exceeds the sum of five hundred dollars,
assessors shall be selected and participate in the judgment as in other
cases.
2d. In actions where the service of the summons was by publication,
the plaintiff, upon the expiration of the time designated in the order of
publication, may, upon proof of the publication, and that no answer has
been filed, apply for judgment; and the court shall thereupon require
proof to be made of the demand mentioned in the complaint; and if
the defendant be not a resident of the empire, shall require the plaintiff,
or his agent, to be examined on oath, respecting any payments that have
been made to the plaintiff, or to any one for his use, on account of such
demand, and may render judgment for the amount which he is entitled
to recover.
JUDICIAL EXTRATERRITORIAL RIGHTS.
145
OF ISSUES AND THE MANNER OF THEIR DISPOSITION.
62. An issue arises when a fact, or conclusion of law, is maintained
by the one party and is controverted by the other, and are of two kinds,
to wit, of law and of fact. An issue of law arisés upon a demurrer to
the complaint or answer, or to some part thereof. An issue of fact
arises when a material allegation in either the complaint or answer is
controverted.
63. Issues of law shall be tried and disposed of by the court, consti-
tuted in the same manner as by law it should be constituted, to try and
dispose of the issuable facts in the same case, and when there are issues
of law and fact in the same case, the issues of law siiall be first dis-
posed of.
64. All causes shall be entered by the court upon its trial calendar,
according to the date of issue and trial; and disposed of according to
their respective order of precedence; unless, for good cause, such dis-
position shall be postponed by order of the court, in writing, entered in
its journals, assigning the reason for delay.
65. A motion to postpone a trial, on the grounds of the absence of evi.
dence, shall only be made upon affidavit, showing the materiality of the
evidence expected to be obtained, and that due diligence has been used
to procure it, setting forth specifically what acts such diligence consists
of. The court may also require the moving party to state upon affidavit
the evidence which he expects to obtain, and if the adverse party there.
upon admits that such evidence would be given, and that it be consid-
ered as actually given on the trial, or offered, and overruled as improper,
the trial shall not be postponed.
TRIAL WITH ASSESSORS.
66. When the action is called for trial by the court, assisted by asses:
sors, the consul or his clerk shall prepare separate ballots containing
the names of all the persons who have been nominated by such consul
to serve as assessors, and whose nomination has been approved by the
minister, and deposit them in a box. He shall then in the presence of
the parties present draw from the box the number of tickets that the
law enjoins that there shall be assessors to aid him upon the trial, and
the persons whose names are thereon shall, by the marshal, be sum-
moned forthwith to appear and act as such assessors.
If the persons
whose names are so drawn are temporarily absent from the port when
the court is sitting, or if any such persons be too unwell to serve, to be
proven by a physician's certificate to that effect, or if the marshal re-
turns upon the summons that such persons after diligent search cannot
be found, or if such person be challenged, as hereinafter provided, and
such challenge be allowed, the consul shall proceed in a similar manner
to draw other names from the box, which persons whose names are so
drawn the marshal shall proceed to summon in the same manner, until
the court shall be organized as by law directed.
67. When the persons thus suminoned shall appear they shall be
sworn by the court to truthfully answer such questions as may be put
to them in relation to their eligibility to serve as assessors in that action,
after which they may be examined relative thereto by the respectivé
parties or their counsel, and when the formation of the board of assess-
ors is completed, they shall be sworn by the consul to well and truly try
the said action then pending, wherein -- is plaintiff and
is
defendant, and a true judgment therein to render according to their best
belief.
S. Mis. 89-10
146
JUDICIAL EXTRATERRITORIAL RIGHTS.
68. Either party to the action may challenge any person so called to
act as an assessor, when it appears from his examination or otherwise.
1st. That he is related to any of the parties in the action by either
the ties of consanguinity or affinity within the third degree.
2d. That he holds the relation of guardian or ward, master or servant,
employer or clerk, or principal, or agent, to either party, or that he is a
member of the family of either party, or a partner in business with
either party, or that he is a surety on any undertaking in the action for
either party.
3d. That he has served as an assessor, or been a witness on a previous
trial between the same parties for the same cause of action, or that he
has formed or expressed an unqualified opinion or belief as to the merits
of the same; or,
4th. That he entertains such an enmity against, or bias to, either of
the parties to the action as would influence his mind in forming his judg-
ment in the action.
And when the challenge is sustained by sufficient evidence, the consul
shall allow the same, discharge the person, and proceed to select another.
69. If, after the organization of the court with assessors, one of the
assessors become sick, he shall be discharged, a new selection made, as
hereinbefore provided, and the trial of the case shall commence anew.
70. A consular court sitting with assessors shall in all cases render a
judgment in writing, signed by the consul and the assessors, if they
agree with him in his judgment, but if either of them dissent, he shall
express such dissent with his reasons therefor in writing, duly signed,
and such dissenting opinion of said assessor.shall, by the consul or his
clerk, be filed and entered in the judgment book with the judgment in
the case.
71. A minute book shall be kept by the consular court, in which shall
be entered the opinions and judgment in each case immediately after
being received, and placed on file; also in said book shall be entered
the names of the persons called as assessors, with a note of the action
of the consul relative thereto, on any challenge made by either party,
the names of all witnesses called and sworn on the trial, and the date
of the rendition of the judgment.
EXCEPTIONS.
72. An exception is an objection taken at the trial to a decision upon
a matter of law, at any time from the time of the calling of the action
for trial until the time of rendition of the judgment therein, and may
be made in writing at the time, or entered by the consul or the clerk of his
court in the minute book thereof, but no exception shall be regarded on
a motion for a new trial, or on aŭ appeal, unless the exception be mate-
rial and affect the substantial rights of the parties.
73. If the court or the coursel in any case refuse to allow an exception
to be filed, or fail or refuse to enter the same in the minute book of the
court in accordance with the facts, any party aggrieved thereby may
pétition the ministerial court, or other appellate court having jurisdic-
tion, on notice to the opposite party, for leave to prove the same, and
shall have the right so to do, in such manner as said court may bý rule
direct.
74. No particular form of exception shall be required. The objection
shall be stated with so much of the evidence or other matter as is neces-
sary to explain it, but no more, and as briefly as possible.
75. The final judgment of the court in an action shall be deemed in
all cases to be .excepted to by the party against whom the same is ren-
dered, without any especial notice that an exception is taken thereto.
JUDICIAL EXTRATERRITORIAL RIGHTS.
147
NEW TRIALS.
76. The judgment rendered in an action may be vacated and a new
granted the for any of the
following causes materially affecting the substantial rights of said.party:
1st. Irregularity in the proceedings of the court, or any order of the
court, or abuse of discretion, by which either party was prevented from
having a fair trial.
2d. Accident or surprise which ordinary prudence could not have
guarded against.
3d. Newly discovered evidence, material for the party making the
application, which he could not, with reasonable diligence, have discov-
ered and produced at the trial.
4th. Excessive damages, appearing to have been given under the
influence of passion or prejudice.
5th. Insufficiency of the evidence to justify the judgment or other
decision, or that it is against law.
6th. Error in law occurring at the trial, and excepted to by the party
making the application.
77. When the application is made for a cause mentioned in the first,
second, and third subdivisions of the last section, it shall be made upon
affidavit; for any other cause it shall be made upon a statement, pre-
pared as provided in the next section.
78. The party intending to move for a new trial shall give written
notice of the same as follows: When the action has been tried by a
consul, sitting with assessors, within five days after the rendition of the
judgment; and within two days after judgment when tried by the con-
sul alone. The notice shall designate generally the grounds upon which
the motion will be made. Within five days after giving such notice,
or within such further time, not exceeding twenty days, as the court
may by order grant, the said party shall file with the court the affidavit
or statement required by the last section. If no affidavit or statement
be filed within five days after the notice, or within such further time as
the parties may agree upon, or the court may by order grant, the right
to move for a new trial shall be deemed waived. When the notice desig-
nates as the ground upon which the motion will be made, the insuffi-
ciency of the evidence to justify the judgment, or other decision, the
statement shall specify the particular errors upon which the party will
rely. When the notice designates as the ground of the motion errors
in law, occurring at the trial, and excepted to by the moving party, the
statement shall specify the particular errors upon which the party will
rely. If no such specifications be made, the statement may be disre-
garded. The statement shall contain so much of the evidence, or refer-
ence thereto, as may be necessary to explain the particular points thus
specified, and no more. Such statement, when not agreed to by the
parties, shall be settled by the judge of the court upon notice. When
agreed to, it shall be accompanied by the certificate of parties, or their
attorneys, that the same has been agreed upon, and is correct. When
settled by the judge, the same shall be accompanied with his certificate
that the same has been allowed by him, and is correet. On the argu-
ment, reference may also be made to the pleadings, depositions, and
documentary evidence on file and the minutes of the court. If the ap-
plication be inade upon affidavits filed, the adverse party may use
counter affidavits on the hearing. Any counter affidavits shall be filed
with the court, one day at least before the hearing. The affidavits, and
counter affidavits, or the statement thus used in connection with such
148
JUDICIAL EXTRATERRITORIAL RIGHTS.
pleadings, depositions, and minutes of the court as are read or referred
to on the hearing, shall constitute, without further statement, the papers
to be used on any appeal that may properly be made from the order
granting or refusing the new trial. Such affidavits, depositions, and
such portion of the minutes of the court as are referred to, may, to be
designated, be indorsed by the judge of the court, as having been reach
on the hearing of the motion, and referred to in his certificate. The
application for a new trial shall be heard by the court at the earliest
practicable period after the filing of the affidavits or statement; and
the decision of the court thereon shall be in writing, stating the grounds
upon which the same is granted or refused.
79. The judgment of the court shall be entered within twenty-four
jours after the trial is concluded, unless the court order the case to be
reserved for argument or further consideration, or grant a stay of pro-
ceedings.
80. If a counter claim established at the trial exceeds the plaintift's
demand so established, judgment for the defendant shall be given for
the excess; or if it appears that the defendant is entitled to any other
affirmative relief, judgment shall be given accordingly.
81. In an action to recover the possession of personal property, judg-
ment for the plaintiff may be for the possession, or the value thereof, in
case a delivery cannot be had; and damages for the detention. If the
property has been delivered to the plaintiff, and the defendant claim a
return thereof, judgment for the defendant may be for the return of the
property or the value thereof, in case a return cannot be had, and dam.
ages for taking and withholding the same.
82. The court shall keep among its records a book for the entry of
judgments, to be called the judgment book, in which such judgment
shall be entered, and shall specify clearly the relief granted, or other
determination of the action.
83. If a party die after a verdict or decision upon any issue of fact,
and before judgment, the court may nevertheless render judgment
thereon.
84. Immediately after entering the judgment, the court shall have
the following papers attached together and filed, which shall constitute
the judgment roll:
1st. In case the complaint be not answered by any defendant, the sum-
mons, with the affidavit or proof of service, and the complaint, with a
memorandum indorsed thereon that the default of the defendant in not
answering was entered, and a copy of the judgment.
2d. In all other cases the summons, pleadings, findings, or opinion of
the court, or any of its assessors; all bills of exception taken and filed
in said action; copies of orders sustaining or overruling demurrers; a
copy of the judgment, and copies of any orders relating to a change
of parties.
85. The court shall keep a book to be called the docket book, with
each page divided into eight columns, and headed as follows: judgment
debtors, judgment creditors, judgment, time of entry, when entered in
judgment book, appeals when taken, judgment of appellate court, satis-
faction of judgment when entered. The names of the defendants shall
be entered in the book in alphabetical order.
86. The docket book shall be open at all times during office hours for
the inspection of the public, without charge.
87. Satisfaction of a judgment may be entered in the docket book upon
an execution returned satisfied, or upon an acknowledgment of satisfac-
tion filed with the court by the judgment creditor, or within one year
JUDICIAL EXTRATERRITORIAL RIGHTS.
149
after the judgment was rendered by the attorney of record of the party,
unless a revocation of his authority be previously filed. Whenever a
judgment shall be satisfied in fact, otherwise than upon an excution, it
shall be the duty of the party, or his attorney, to give such acknowl-
edgment, and upon motion the court may compel it; or may order the
entry of satisfaction to be made without it.
THE EXECUTION.
88. The party in whose favor judgment is given may, at any time
within five years after the entry thereof, have issued for its enforcement
a writ of execution, as hereinafter provided.
89. The writ shall be issued in the name of the people of the United
States of America, sealed with the seal of the court, and shall be di-
rected to the marshal, and shall intelligibly refer to the judgment, stating
the court where the judgment-roll is filed;. and if it be for money, the
amount thereof, and the amount actually due thereon, and shall require
the marshal substantially as follows:
1st. If it be against the property of the judgment debtor, it shall re-
quire the marshal to satisfy the judgment, with interest, out of the per-
sonal property of such debtor; and if sufficient personal property can-
not be found, then out of his real property.
2d. If it be against real or personal property in the hands of the per-
sonal representatives, heirs, devisees, legatees, or tenants of real prop-
erty, or trustees, it shall require the marshal 'to satisfy the judgment,
with interest, out of such property.
3d. If it be against the person of the judgment debtor, it shall re-
quire the marshal to arrest such debtor, and commit him to jail until
he pay the judgment, with interest, or be discharged according to law.
4th. If it be for the delivery of real or personal property, it shall re-
quire the marshal to deliver the possession of the same, particularly
describing it, to the party entitled thereto; and may, at the same time,
require the marshal to satisfy any costs, damages, rents, or profits re-
covered by the same judgment out of the personal property of the per-
son against whom it was rendered; and the value of the property to
be specified therein, if a delivery thereof cannot be had; and if suffi-
cient personal property cannot be found, then out of the real property,
as provided in the first subdivision of this section.
90. When a writ of execution is issued on a judgment recovered
against two or more persons in an action upon a joint contract, in which
all of the defendants were not served with summons, it shall direct the
marshal to satisfy the judgment out of the joint property of all of the
defendants, and the individual property only of the defendants who
were served.
91. The execution may be made returnable at any time not less than
ten por more than sixty days after its receipt by the marshal, to the
court where the judgment-roll is filed.
92. When the judgment requires the payment of money, or the de-
livery of real or personal property, the same may be enforced by a writ
of execution; when it requires the performance of any other act, a cer-
tified copy of the judgment may be served on the party against whom
the same is rendered, or upon the person or officer required thereby or
by law to obey the same. Obedience thereto may be enforced by the
court; and, after a final judgment of partition, the court shall have power
to enforce a severance of the possession.
93. In all cases, other than for the recovery of money, the judgment
150
JUDICIAL EXTRATERRITORIAL RIGHTS.
may be enforced after five years from the date of its entry by an order
of the court upon application therefor.
94. Notwithstanding the death of a party, after the judgment, execu-
tion thereon may be issued ; in case of the death of the plaintiff, the
same as if he were living, upon the application of his executor, or ad-
ministrator, or successor in interest, by the court in which the judg-
ment was rendered or exists; and in case of the decease of the defend.
dant, if the judgment be for the recovery of real or personal property,
execution may be issued and executed against the property recovered in
the same manner, and with the same effect, as if he were still living.
95 When the execution is against the property of the judgment
debtor, it may be issued to the marshal of any consulate in the empire;
when it requires the delivery of real or personal property, it shall be
issued to the marshal of the consulate where the property or some part
thereof is situated. Execution may be issued at the same time to dif-
ferent consulates.
96. All goods, chattels, moneys, and other property, both real and
personal, or any interest therein of the judgment debtor, not exempt by
decree or law from execution, and all property and rights of property
seized and held under attachment in the same action, shall be liable to
execution. Shares and interests in any corporation or company, and
debts and credits on all other property, both real and personal, or any
interest in either real or personal property, and all other property not
capable of manual delivery, may be attached, on execution, in like man-
ner as upon writs of attachments. Until a levy, property shall not be
affected by execution or attachment.
97. If the property levied on be claimed by a third person as his
property, the marshal shall notify the persou in whose favor the execu-
tion is issued of such claim, by whom it was preferred, and what the
value of the same is; and, as a condition precedent to holding the same
under execution, he may require the execution creditor to execute to
him a good and sufficient bond of indemnity, in double the value of the
said property, conditioned to save him the marshal) harmless if he
shall hold and sell the said property under the execution. And if said
indemnity bond shall not be given within two days after service of such
notice, the marshal may release the said property to the claimant, mak-
ing return of the notice of claim, and his proceedings thereunder, to the
court that issued the execution.
98. The following property shall be exempt from execution, to wit:
First, chairs, tables, desks, and books, to the value of one hundred dol-
lars, belonging to the judgment debtor; second, necessary household,
kitchen, and table furniture belonging to the judgment debtor, includ-
ing stove, stove-pipe, and stove furniture; wearing apparel, beds, bed-
ding, and bedsteads; and provisions actually provided for individual or
family use, sufficient for one month, not exceeding in value the sum of
six hundred dollars; and third, tools or implements of a mechanic or
artisan necessary to carry on his trade; the instruments or chests of a
surgeon, physician, surveyor, and dentist, necessary to the exercise of
their profession, with their scientific and professional libraries; the law
libraries of attorneys and counselors; and the libraries of ministers of
the Gospel.
99. The marshal shall execute the writ against the property of the
judgment debtor by levying on a sufficient amount of property, if there
be sufficient, collecting or selling the things in action, and selling
the other property, and paying to the plaintiff, or his attorney, so
much of the proceeds as will satisfy the judgment, or depositing the
JUDICIAL EXTRATERRITORIAL RIGHTS.
151
amount with the court; any excess in the proceeds over the judgment
and the marshal's fees shall be returned to the judgment debtor. Where
there is more property of the judgment debtor than is sufficient to
satisfy the judgment and the marshal's fees, within view of the marshal,
he shall levy on such part only of the property as the judgment debtor
may indicate; provided that the judgment debtor be present at and in-
dicate at the time of the levy such part.
100. Before the sale of property on execution, notice thereof shall be
given as follows:
Ist. In case of perishable property, by posting written or printed
notices of the time and place of sale in public places of the port or city
where the sale is to take place, for such a time as may be deemed reason-
able, considering the character and condition of the property.
2d. In case of other personal property, by posting a similar notice in
public places in the port or city when the same is to take place, and
publishing a copy of the same in some newspaper published in the place
(if there be one published there) not less than five nor more than ten
days successively.
3d. In case of real property, by posting a similar notice (particularly
describing the property), for twenty days successively, in public places
of the port or city where the property is situated, and publishing a copy
thereof once a week, for the same period, in some newspaper published
at the port or city, if there be one.
101. An officer selling without the notice prescribed by the last sec-
tion shall forfeit $500 to the aggrieved party, in addition to his actual
damages; and the willful taking down or defacing of such a notice be-
fore the sale, or satisfaction of the judgment, shall be a misdemeanor,
punishable as such by either fine or imprisonment, or both.
102. All sales of property under execution shall be made at auction to
the highest bidder, and shall be made between the hours of ten in the
morning and five in the afternoon; and, after sufficient property has
been sold to satisfy the execution, no more shall be sold. Neither the
officer holding the execution nor his deputy shall become a purchaser,
or be interested in any purchase at such sale. When the sale is of per-
sonal property, capable of manual delivery, it shall be within view of
those who attend the sale, and be sold in such parcels as are likely to
bring the highest price; and when the sale is of real property, and con-
sisting of several known lots or parcels, they shall be sold separately;
or, when a portion of such real property is claimed by a third person,
and he requires it to be sold separately, such portion shall thus be sold.
The judgment debtor, if present at the sale, may also direct the order in
which property, real or personal, shall be sold, where such property
consists of several known lots or parcels, or of articles which can be
sold to advantage separately; and the marshal shall be bound to follow
such direction.
103. If a purchaser refuses to pay the amount bid by him for property
struck off to him at a sale under execution, the officer may again sell the
property, at any time, to the highest bidder; and if any loss be occa-
sioned thereby, the officers may sue such person (if a citizen of the
United States) and recover the amount of such loss, with costs, in the
consular court of the port or city where such sale was held; and the
same proceeding may be had against any American citizen who, being
a subsequent purchaser, shall refuse to pay the price bidden by him for
an article struck off to him; and the officer may, in his discretion, there-
after reject the bid of any person so refusing.
104. The two preceding sections shall not be construed to make the
152
JUDICIAL EXTRATERRITORIAL RIGHTS.
officer liable for any more than the amount bid by the second or subse-
quent purchaser, and the amount collected from the purchaser refusing
to pay.
105. When the purchaser of any personal property capable of manual
delivery shall pay the purchase money, the officer making the sale shall
deliver to the purchaser the property, and, if desired, shall execute and
deliver to him a certificate of the sale and payment. Such certificate
shall convey to the purchaser all the right, title, and interest which the
debtor had in and to such property on the day the execution was levied.
106. When the purchaser of any personal property not capable of
manual delivery shall pay the purchase money, the officer making the
sale shall execute and deliver to the purchaser a certificate of sale and
payment. Such certificate shall convey to the purchaser all right, title,.
and interest which the debtor had in and to such property on the day
the execution was levied.
107. Upon a sale of real property, the purchaser shall be substituted
to and acquire all the right, title, interest, and claim of the judgment
debtor thereto; and, when the estate is less than a leasehold of two
years, the sale shall be absolute. In all other cases the property sball
be subject to redemption, as provided in this chapter. The officer shall
give to the purchaser a certificate of sale, containing-
1st. A particular description of the real property sold;
2d. The price bid for each distinct lot or parcel;
3d. The whole price paid; and
4th. When subject to redemption, it shall be so stated.
108. Property sold subject to redemption, as provided in the last sec-
tion, or any part sold separately, may be redeemed, in the manner
hereinafter provided, by the following persons, or their successors in
interest:
1st. The judgment debtor, or his successor in interest, in the whole or
any part of the property.
Žd. A creditor having a lien, by judgment, or mortgage on the prop-
erty sold, or on some share or part thereof, subsequent to that on which
the property was sold. The persons mentioned in the second subdi-
vision of this section are termed redemptioners.
109. The judgment debtor or redemptioner may redeem the property
from the purchaser, within six months after the sale, on paying the
purchaser the amount of his purchase, with twelve per cent. thereon in
addition, together with the amount of any land rental which the pur-
chaser may have paid thereon to the Japanese government after the
purchase, and interest on such amount; and if the purchaser be also a
creditor having a prior lien to that of the redemption, other than the
judgment under which such purchase was made, the amount of such
lien, and interest thereon.
110. If the property be so redeemed by a redemptioner, either the
judgment debtor or other redemptioner may, within sixty days after the
last redemption, again redeem it from the last redemptioner, on paying
the suin paid on such last redemption, with four rer cent. thereon in
addition, and the amount of any land rental which the said last re-
demptioner may have paid thereon to the Japanese government, with
interest on such amount; as also the amount of any liens held by the
last said redemptioner, prior to his own, with interest, provided that the
judgment under which the property was sold need not be so paid as a
lien. The property may again, and as often as the debtor or a redemp-
tioner is so disposed, be redeemed from any previous redemptioner
JUDICIAL EXTRATERRITORIAL RIGHTS.
153
:
within sixty days after the last redemption, with four per cent. thereon
in addition; and the amount of any government land rent which the
last previous redemptioner paid after the redemption by him, with in-
terest thereon; and the amount of any liens other than the judgment,
under which the property was sold, held by the last said redemptioner
previous to bis own, with interest. Notice of redemption shall be given
to the marshal. If no redemption be made within six months after the
sale, the purchaser or his assignee shall be entitled to a conveyance; or
if so redeemed, whenever sixty days have elapsed, and no redemption
has been made, and notice thereof given, the time for redemption shall
have expired, and the last redemptioner or his assignee shall be entitled
to a marshal's deed. If the debtor redeem at any time before the time
for redemption expires, the effect of the sale shall be terminated, and he
be restored to his estate. The payments mentioned in this and the last
preceding sections may be made to the purchaser or to the redemp-
tioner, as the case may be, or for him to the officer who made the sale.
111. A redemptioner shall produce to the officer or person from whom
he seeks to redeem, and served with his notice to the marshal-
1. A copy of the mortgage, or other lien, upon which he claims the
right to redeem;
2. A copy of any assignment necessary to establish his claim, verified
by his own or a subscribing witness's affidavit; and
3. His or his agent's affidavit, showing the amount then actually due
on the lien.
112. Until the expiration of the time allowed for redemption, the court
may restrain the commission of waste, by an order to that effect, upon
notice. But it shall not be deemed waste for the person in possession of
the property at the time of the sale, or entitled to possession afterward,
during the period allowed for redemption, to continue to use it in the
same manner in which it was previously used, or in any other reasonable
manner.
113. The purchaser from the time of the sale until a redemption, and
a redemptioner from the time of his redemption until another redemption,
shall be entitled to receive from the tenant in possession the rents of
the property sold, or the value of the use and occupation thereof.
114. If the purchaser of real property sold on execution, or his sulc-
cessor in interest, be evicted therefrom, in consequence of irregularities
in the proceedings concerning the sale, or of the reversal or discharge
of the judgment, he may recover the price paid, with interest, from the
judgment creditor. If the purchaser of property at a marshal's sale or
his successor in interest fail to recover possession, in consequence of ir-
regularity in the proceedings concerning the sale, or because the property
sold was not subject to execution and sale, the court having jurisdiction
thereof shall, on petition of such party in interest, or his attorney, revive
the original judgment for the amount paid by such purchaser at the sale,
with interest thereon, from the time of payment, at the same rate that
the original judgment bore. When so revived, the said judgment shall
have the same effect as an original judgment of the said court of that
date, and bearing interest as aforesaid, and any other or after-acquired
property, rents, issues, or profits of the said debtor shall be liable to
levy and sale, under execution in satisfaction of such debt; provided
that no property of such debtor sold bona fide before the filing of such
petition shall be subject to the lien of said judgment. The said judg-
ment shall be revived in the name of the original party plaintiff, for the
use of said petitioner, the party in interest.
154
JUDICIAL EXTRATERRITORIAL RIGHTS.
PROCEEDINGS SUPPLEMENTARY TO EXECUTION.
115. When an execution against property of the judgment debtor, or
any one of several debtors in the same judgment, issued to the marshal
of the port or city at which he résides, or if he does not reside in this
empire, to the marshal of the consulate where the judgment-roll is filed,
is returned unsatisfied, in whole or in part, the judgment creditor, at
any time after such return is made, shall be entitled to an order from the
consular court requiring such debtor to appear and answer concerning
his property before such court, at a time and place specified in the order;
but no judgment debtor shall be required to attend before a court out
of the port or city in which he resides when proceedings are taken under
the provisions of this chapter.
116. After the issuing of an execution against the property, and by
proof by affidavit, to the satisfaction of the court, that any judgment
debtor has property which he unjustly refuses to apply toward the sat-
isfaction of the judgment, such court may, by an order, require said
debtor to appear at a specified time and place before such court, to an-
swer concerning the same; and such proceedings may thereupon be had
for the application of the property of the judgment debtor toward the
satisfaction of the judgment as are provided upon the return of an exe-
cution. If it be made to appear to the court by affidavit that there is
danger of the judgment debtor absconding, the court may order the
marshal to arrest the debtor, and bring him before the court; and upon
his appearance, he may be ordered to enter into an undertaking, with
sufficient security, that he will attend from time to time before the court,
as shall be directed, during the pendency of the proceeding, and until
final determination thereof will not dispose of any portion of his property
not exempt from execution. In default of such undertaking, he may be
committed to prison.
117. After the issuing of an execution against property, any person
indebted to the judgment.debtor may pay to the marshal the amount of
his debt, or so much thereof as may be necessary to satisfy the execu-
tion; and the marshal's receipt shall be a sufficient discharge for the
amount so paid.
118. After the issuing or return of an execution against property of
a judgment debtor, or one of several debtors in the same judgment,
upon proof by affidavit to the satisfaction of the court that any person
or corporation las property of such judgment debtor, or is indebted to
him in an amount exceeding fifty dollars,
the court may by order require
such person, or a proper officer of such corporation (American citizens),
to appear at a specified time before the court to answer concerning the
119. Witnesses may be required to appear and testify before the court
in any proceeding under this chapter in the same manner as upon the
trial of an issue.
120. The court may order any property of the judgment debtor not
exempt from execution, in the hands of such debtor or other person, or
due to the judgment debtor, to be applied to the satisfaction of the
judgment.
121. If any person, party, or witness disobey an order of the court,
properly made in the proceedings before him under this chapter, he may
be punished by the court for a contempt.
same.
FOREOLOSING MORTGAGES.
122. There shall be but one action for the recovery of any debt or the
enforcement of any right secured by mortgage upon real or personal
JUDICIAL EXTRATERRITORIAL RIGHTS.
155
property; which action shall be in accordance with the provisions of
this chapter. In actions for the foreclosure of mortgages, the court
shall have power by its judgment to direct a sale of the encumbered
property (or so much thereof as may be necessary), and the application
of the proceeds of the sale to the payment of the costs of the court and
the expenses of the sale, and the amount due to the plaintiff; and if it
appear from the marshal's return that the proceeds are insufficient, and
a balance still remains due, judgment shall then be docketed for such
balance against the defendant or defendants personally liable for the
debt, and shall then become a lien on the real estate of such judgment
debtor, as in other cases on which execution may issue. All persons
having liens or mortgages registered in the consulate of the port or city
where the property is situated, shall be joined in the action, and their
respective rights thereto shall all be determined and settled in one
action.
123. If there be surplus money remaining after the amount due has
been paid on the mortgagè, lien, or incumbrance, with costs, the court
may secure the same to be paid to the person entitled to it, and in the
mean time may direct it to be deposited in court.
124. If the debt for which the mortgage, lien, or incumbrauce is held
be not all due, so soon as sufficient property has been sold to pay the
amount due, with costs, the sale shall cease; and afterward as often as
more becomes due, for principal or interest, the court may, on motion,
order more to be sold. But if the property cannot be sold in portions
without injury to the parties, the whole may be ordered to be sold in
the first instance, and the entire debt and costs paid, there being a re-
bate of interest when suclı rebate is proper.
5
APPEALS.
125. A judgment or order in a civil action, except when expressly
made final by a statute of the United States, may be waived, as pre-
scribed in this chapter, and not otherwise. The party appealing shall
be known as the appellant, and the adverse party as the respondent.
126. An appeal may be taken froin a final judgment in an action or
special proceeding commenced in the court in which the same is rendered
(when the same is not made final by law) within one year after the rendi-
tion of judgment.
2d. From an order granting or refusing a new trial; from an order
granting or dissolving, or modifying an injunction; from an order dis-
solving or refusing to dissolve an attachment; from any special order
made after final judgment, within sixty days after such order is made
and entered in the minutes of the court.
127. The appeal shall be made by filivg with the court by whom the
judgment or order appealed from was rendered, a notice stating the
appeal from the same or some specific part thereof, and serving a copy
of the notice upon the adverse party or his attorney.
128. When the party who has the right to appeal wishes a statement
of the case to be annexed to the record of the judgment or order, he
shall, within twenty days after the entry of such judgment or order,
prepare such statement, which shall state specifically the particular
errors or grounds upon which he intends to rely on the appeal, and shall
contain so much of the evidence as may be necessary to explain the
particular errors or grounds specified, and no more; and shall serve a
copy thereof upon the adverse party. The respondent may, within five
days thereafter, prepare amendments to the statement and serve a copy
on the appellant. The statement and amendments which may be served
156
JUDICIAL EXTR: TERRITORIAL RIGHTS.
shall be presented to the judge who tried or heard the case, upon notice
of two days to the respondent; and a true statement shall thereupon
be settled by the judge. If no amendments are served, the statement
may be presented to the judge for settlement without notice to the re-
spondent.
129. If the party sball omit to make a statement within thie time above
limited, he shall be deemed to have waived his right thereto; and when
a statement is made, and the parties shall omit within the several times
above limited, the one party to propose amendments, the other to notify
an appearance before the judge, they shall, respectively, be deemed, the
former to have agreed to the statement as prepared, and the latter to
have agreed to the amendments as proposed; but the judge who heard
the case shall, notwithstanding such admission or implied argument,
have power to correct any misstatement of fact or of his rulings which
such statement may contain.
130. The several periods of time above limited for preparing or filing
a statement or amendments thereto may be enlarged, upon good cause
shown by the judge before whoin the case was tried.
131. The statement, when settled by the judge, shall be signed by
him, with his certificate that the same has been allowed and is correct;
when the statement is agreed upon by the parties, they or their attor-
neys shall sign the same, with their certificate that it has been agreed
upon by them and is correct. In either case, when settled or agreed
upon, it shall be filed with the court.
132. A copy of the statement shall be annexed to a copy of so much
of the judgment-roll as shall be included in the transcript on appeal, if
the appeal be from a judgment; if the appeal be from an order, to a
copy of such order.
133. The provisions of the last five preceding sections shall not apply
to appeals taken from an order made upon affidavit filed, but such affi-
davit shall be annexed to the order in place of the statement mentioned
in those sections.
134. Upon an appeal from a judgment the court may review any im-
mediate order involving the merits and necessarily affecting the judg-
ment.
135. Upon an appeal from a judgment or order the appellate court
may revise, affirm, or modify the judgment or order appealed from, in
the respect mentioned in the notice of appeal, and as to any or all of the
parties, and may set aside or confirm or modify any or all of the pro-
ceedings subsequent to or dependent upon such judgment or order; and
may, if necessary or proper, order a new trial. When the judgment or
order is reversed or modified, the appellate court may make complete
restitution of all property and rights lost by the erroneous judgment or
order; and when it appears to the appellate court that the appeal was
made for delay, it may add to the costs such damages as may be just.
136. On an appeal from a final judgment, the appellant shall furnish
the court with a transcript of the notice of appeal, the pleadings, or
amended pleading, as the case may be, wbich form the issues tried in
the case, the judgment, and such other parts of the judgment-roll, and
no more, as are necessary to present or explain the points relied on, and
the statement (if. there be one) certified by the attorneys of the parties
to the appeal, or by the court below, to be correct. On an appeal from
an order, the appellant shall furnish the court with a copy of notice
of appeal, the judgment or order appealed from, and a copy of the
papers used in the hearing of the court below, such copies to be certi-
fied in like manner to be correct. If any written opinion be placed on
JUDICIAL EXTRATERRITORIAL RIGHTS.
157
file in rendering the judgment or making the order in the court below;
a copy shall be furnished. If the appellant fail to furnish the requisite
papers, the appeal may be dismissed.
137. 'To render an appeal effectual for any purpose in any case, a
written undertaking shall be executed, on the part of the appellant, by
at least two sureties, to the effect that the appellant will pay all damages
and costs which may be awarded against him on the appeal, not exceed-
ing three hundred dollars; or that sum shall be deposited with the court
where the judgment or order was eutered, to abide the event of the ap-
peal. Such undertaking shall be filed or such deposit made within five
days after the notice of appeal is filed.
138. If the appeal be from a judgment or order directing the payment
of money, it shall not stay the execution of the judgment or order, unless
a written undertaking be executed, on the part of the appellant, by two
or more sureties, citizens of the United States, and residents of this
empire, to the effect that they are bound in double the amount named
in the judgment or order, that if the judgment or order appealed from,
or any part thereof, be affirmed, the appellant shall pay the amount
directed to be paid by the judgment or order, or the part of such
amount as to which the judgment or order shall be affirmed (if affirmed
only in part), and all damages and costs which shall be awarded against
the appellant upon the appeal.
139. If the judgment or order appealed from direct the assignment or
delivery of documents or personal property, the execution of the judg-
ment or order shall not be stayed by appeal, unless the things required
to be assigned or delivered be placed in the custody of such officer or
receiver as the court may appoint, or unless an undertaking be en-
tered into on the part of the appellant, with at least two sureties, and in
such amount as the court may direct, to the effect that the appellant
will obey the order of the appellate court upon the appeal.
140. If the judgment or order appealed from direct the execution of a
conveyance or other instrument, the execution of the judgment or order
shall not be stayed by the appeal until the instrument is executed and
deposited with the court in which the judgment or order is entered, to
abide the judgment of the appellate court.
141. If the judgment or order appealed from direct the sale or deliv-
ery of the possession of real property, the execution of the same shall
not be stayed unless a written undertaking be executed on the part of
the appellant, with two or more sureties, to the effect that during the
possession of such property by the appellant, he will not commit or
suffer to be committed any waste thereon, and that if the judgment be
affirmed, he will pay the value of the use and occupation of the prop-
erty, from the time of the appeal until the delivery of the possession
thereof pursuant to the judgment or order, not exceeding a sum to be
fised by the court from which the appeal is to be taken, and wbich shall
be specified in said undertaking. When the judgment is for the sale of
mortgaged premises and the payment of a deficiency arising upon the
sale, the undertaking shall also provide for the payment of such defi-
ciency.
142. Whenever an appeal is perfected, as provided in the preceding
sections of this chapter relative to appeals, it shall stay all further pro-
ceedings in the court below, upon the judgment or order appealed from
or upon the matters embraced therein; and on appeal and filing an ap-
peal bond on appeal from an order discharging an attachment, said at-
tachment shall not be dissolved, but shall remain in full force until the
cause be disposed of on appeal, but the court below may proceed upon
158
JUDICIAL EXTRATERRITORIAL RIGHTS.
any other matter embraced in the action and not affected by the order
appealed from, provided that an appeal shall not continue in force an
attachment, unless an undertaking be executed and filed on the part of
the appellant, by at least two sufficient sureties, in double the amount
of the debt claimed by him, that the appellant will pay all costs and
damages which the respondent may sustain by reason of the attach-
ment, in case the order of the court below be sustained, and unless also
notice of the appeal be given within five days after service of the notice
of the entry of the order appealed from, and such appeal be perfected
and the undertaking mentioned in this section be filed within five days
thereafter. The undertakings mentioned in this and the preceding sec-
tion of this chapter relative to appeals may be in one instrument or
several, at the option of the appellant.
143. An undertaking upon an appeal shall be of no effect, unless it
be accompanied by the affidavit of the sureties that they are each worth
the amount specified therein, in property situated in the empire of Japan,
over and above all of their just debts and legal liabilities, exclusive of
property exempt from execution, except when the judgment exceeds
the sum of three thousand dollars, and the undertaking is executed by
more than two suretiés, in which case they may state in their affidavits
that they are severally worth amounts less than that expressed in the
undertaking, if the whole amount be equivalent to that of two sufficient
sureties. In all cases when an undertaking is required on appeal by
the decree, a deposit in the court below of the amount of the judgment
appealed from, and three hundred dollars in addition, shall be equiva-
lent to filing the undertaking, and in all cases the undertaking or de-
posit may be waived by the written consent of the respondent.
144. When the judgment is rendered upon the appeal, it shall be cer-
tified by the court,or clerk of the court to which the appeal has been
taken, to the court with whom the judgment roll is filed, or the order
appealed from is entered. In cases of appeal from the judgment, the
court or clerk of the court with whom the roll is filed shall attackí the
certificate to the judgment roll and enter a minute of the judgment of
the appellate court on the docket against the original entry. In cases
of an appeal from an order, the court or its clerk shall enter at length
in the records of the court the certificate received, and minute against
the entry of the order appealed from a reference to the certificate, with
a brief statement that such order has been affirmed, revised, or modified,
as the case may be, by the appellate court upon appeal.
MISCELLANEOUS PROCEEDINGS.
145. When a judgment is recovered against one or more of several
persons jointly indebted upon an obligation as hereinbefore provided,
those who were not originally served with summons and did not appear
in the action, may be summoned to show caizse why they should not be
bound by the judgment in the same manner as though they had been
originally served with summons.
146. The summons, as provided in the last section, shall describe the
judgment and require the person summoned to show cause why he should
not be bound by it, and shall be served in the same manner and made
returnable within the same time as the original summons. It shall not
be necessary to file a new complaint.
147. The summons shall be accompanied by an affidavit of the plain-
tiff, his agent, representative or attorney, that the judgment or some
JUDICIAL EXTRATERRITORIAL RIGHTS.
159
part thereof remains unsatisfied, and shall specify the amount due
thereon.
148. Upon such summons the defendant may answer within the time
specified therein, denying the judgment or setting up any defense which
may have arisen subsequently, or he may deny his liability on the obli-
gation upon which the judgment was recovered, except a discharge from
such liability by the statute of limitations.
149. If the defendant in his answer deny the judgment, or set up any
defense which may have arisen subsequently, the summons, with the
affidavit annexed, and the answer, shall constitute the written allega-
tions in the case. If he denies his liability on the obligation upon
which the judgment was recovered, a copy of the original complaint
and judgment; the summons, with the affidavit annexed, and the answer,
shall constitute the written allegations.
150. The issues may be tried as in other cases, but when the defend-
ant denies in his answer any liability on the obligation upon which the
judgment was rendered, if à judgment, be rendered against him, it shall
be for the amount remaining unsatisfied on such original judgment, with
interest thereon,
CONFESSION OF JUDGMENT WITHOUT ACTION.
151. A judgment by confession may be entered without action, either
for money due, or to become due; or to secure any person against con-
tingent liability on behalf of the defendant; or both in the manner pre-
scribed by this chapter.
152. A statement in writing shall be made, signed by the defendant,
nd verified by his oath, to the following effect:
1st. It shall authorize the entry of judgment for a specified sum.
2d. If it be for money due, or to become due, it shall state concisely
the facts out of which it arose, and shall show that the sum confessed
therefor is justly due, or to become due.
3d. If it be for the purpose of securing the plaintiff against a contin-
gent liability, it shall state concisely the facts constituting the liability,
and shall show that the sum confessed therefor does not exceed the same.
153. The statement shall be filed with the court in which the judg-
ment is to be entered, who shall incorse upon it and enter in the judg-
ment book a judgment of such court for the amount confessed, with ten
dollars costs. The statement and affidavit, with the judgment indorsed,
shall therefore become the judgment roll.
SUBMITTING A CONTROVERSY WITHOUT ACTION.
154. Parties to a question in difference, which might be the subject of
a civil action, may, without action, agree upon a case containing the
facts upon which the controversy depends, and present a submission of
the same to any court which should have jurisdiction if an action had
been brought. But it must appear by affidavit that the controversy is
real, and the proceedings in good faith, to determine the rights of the
parties. The court shall thereupon hear and determine the case, and
render judgment thereon as if an action were pending.
155. Judgment shall be entered in the judgment book as in other
cases, but without costs, for any proceeding prior to the trial. The
case, the submission, and a copy of the judgment, shall constitute the
judgment roll.
156. The judgment may be enforced in the same manner as if it had
160
JUDICIAL EXTRATERRITORIAL RIGHTS:
been rendered in an action, and shall be in the same manner subject to
appeal.
OFFER TO COMPROMISE.
157. The defendant may, at any time before the trial or judgment,
serve upon the plaintiff an offer to allow judgment to be taken against
him for the sum or property or to the effect therein specified. If the
plaintiff accept the offer and give notice thereof within five days, he
may file the summons, complaint, and offer with an affidavit of notice
of acceptance, and the court shall thereupon enter judgment accord
ingly. If the notice of acceptance be not given, the offer shall be
deemed withdrawn, and shall not be given in evidence, and if the plain-
tiff fail to obtain a more favorable judgment, he shall not recover costs,
but shall pay the defendant's costs from the time of the offer.
WITNESSES.
158. A subpæna may require not only the attendance of the person
to whom it is directed at a particular time and place to testify as a wit-
ness, but may also require him to bring any books, documents, or other
things under his control, to be used as evidence. No person shall be
required to attend as a witness before any court or officer out of the
city or treaty port in which he resides, unless the distance be less than
thirty miles from the city or port of his residence to the place of trial.
159. To require attendance before a .court, it shall be issued under
the seal of the court before which the attendance is required. To re-
quire attendance out of court before an officer authorized to administer
oaths, or take testimony in any matter, it shall be issued by such per-
son or officer, or by the judge of any United States court. To require
attendance before a commissioner appointed to take testimony,
or before
any officer or officers empowered by the laws of the United States, or
of other countries, to take testimony, it may be issued by any United
States consul in places within their respective jurisdiction, with like
power to enforce attendance, and, upon certificate of contumacy to said
consular court, to punish contempt of their process, as such consular
court could exercise, if the subpæna directed the attendance of the wit-
ness before their courts, in a matter pending therein.
160. The service of a subpoena shall be made by showing the original,
and delivering a copy to the witness personally, giving or offering to.
him at the same time, if demanded by him, the fees to which he is en-
titled for travel to and from the place designated, and one day's attend-
ance there.
Such service may be made by any person, proof thereof to
be made by the affidavit of the person serving it, or the written admis-
sion of the person served, except in cases when served by the marshal,
who shall return in writing on the original his certificate of his pro-
ceedings.
161. If a witness be concealed in a building or vessel of, or belonging
to, or in the possession of, an American citizen, so as to prevent the
service of a subpæna upon him, the court issuing the subpoena, on proof
of the concealment and of the materiality of the witness, may order the
marshal of the port to serve the subpæna, and be shall serve it accord-
ingly, and for that purpose may break into such vessel or building
wherein such witness is concealed. A person present in court may be
required to testify in the same manner as if he were in attendance upon
a subpoena issued by the court and served upon him.
162. It shall be the duty of a witness, duly served with a subpoena,
JUDICIAL EXTRATERRITORIAL RIGHTS.
161
to attend at the time appointed with any papers under his control re-
quired by the subpæna, to answer all pertinent and legal questions,
and, unless sooner discharged, to remain until the testimony iş closed.
163. A witness shall answer questions legal and pertinent to the mat-
ter in issue, though his answer may establish a claim against himself,
but he need not give an answer which will have a tendency to subject
him to punishment for a felony, nor need he give an answer which will
have a direct tendency to degrade his character, unless it be to the very
fact in issue, or to a fact from which the fact in issue would be pre-
sumed. But the witness shall answer as to the fact of his previous con-
viction for felony.
164. Disobedience to a subpæna, or a refusal to be sworn, or to an-
swer as a witness, or to subscribe an affidavit or deposition when re-
quired, may be punished as a contempt by the.court or officer issuing
the subpoena, or requiring the witness to be sworn, and if the witness
be a party, lis complaint may be dismissed, or lis answer may be
stricken out.
165. In case of failure of a wituess to attend, the court or officer issu-
ing the subpæna, upon proof of the service thereof, and of the failure
of the witness, may issue a Warrant to the marshal of the port or city
to arrest the witness and bring him before the court or officer when re-
quired.
166. If a witness whose evidence is desired is in confinement in any
prisou of the United States of America in Japan, the court or officer by
whose judgment or order le is 30 confined, upon proof of his materiality
as a witness, may, by order, direct him to be taken before the officer or
court when his evidence is required to therein testify, or may direct that
the evidence.of the witness may be taken in the prison.
167. Every person who has in good faith been served with a subpæna
to attend as a wituess before a court or other person in a case, when the
disobedience of a witness might be punished as a contempt, shall be
exonerated from arrest in a civil action while going to the place of at-
tendance, necessarily remaining therein, and returning therefrom.
168. A party to an action may take the evidence of an adverse party,
or call such party as a witness, but shall not be concluded or estopped
from disproving the statements given in evidence by him, but inay rebut
the same by other testimony. If an adverse party refuse to attend and
testify at the trial, or to give bis deposition before a trial, or upon a
commission when required, his complaint or answer may be stricken
out, and judgment be taken against him, and he may also be punished
by the court as another witness for contempt.
169. An affidavit to be used before any court, judge, or officer of this
empire may be taken before any court of the United States in this em-
pire. An affidavit taken in the United States may be taken before any
judge or clerk of any court of record having a seal. An affidavit taken
in a foreign country to be used in this empire, shall be taken before a
minister, commissioner, secretary of legation, or consul of the United
States in such foreigu country. When an affidavit is taken before a
judge of a court in the United States, the genuineness of the signature
of the judge, the existence of the court, and the fact that such judge is
a member thereof, shall be certified by the clerk of the court under the
seal thereof.
OF DEPOSITIONS TAKEN İN THIS EMPIRE.
170. The testimony of a witness in this empire may be taken by depo-
sition in an action, at any time after the service of a summons, or the
S. Mis. 89_-
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162
JUDICIAL EXTRATERRITORIAL RIGHTS.
appearance of the defendant, and in a special proceeding after a question
of fact has arisen therein, in the following cases:
1st. When the witness is a party to the action or proceeding, or a
person for whose immediate benefit the action or proceeding is prose-
cuted or defended.
2d. When the witness resides out of the treaty port or city in which
his testimony is to be used.
3d. When the witness is about to leave the treaty port or city where
the action is to be tried, and will probably continue absent when the
testimony is required.
4th. When the witness, otherwise liable to attend the trial, is never-
theless too infirm to attend.
171. Either party may have the deposition taken of a witness in this
empire before any United States consul or other United States judicial
officer in said empire, on serving on the adverse party previous notice
of the time and place of examination, together with a copy of an aff-
davit showing that the case is one mentioned in the last section. At
any time within the forty days immediately after the service of summons
by publication has been completed, and at any time thereafter, when
the defendant has not appeared, the notice required by this section may
be served on the judge of the court where the action is pending. Such
notice shall be at least five days, and in addition, one day, for every
twenty-five miles of the distance of the place of examination from the
residence of the person to whom the notice is given.
172. Either party may attend such examination and put such ques-
tions, direct or cross, as may be proper. The deposition, when com-
pleted, shall be carefully read to the witness and corrected by him in
any particular, if desired; it shall then be subscribed by the witness,
certified by the officer taking the deposition, inclosed in an envelope,
sealed, and directed to the court in which the action is pending, or to
such person as the parties in writing may agree upon, and delivered to
such court or person, or transmitted through the mail, or by some safe
private opportunity; and, thereupon, such deposition may be used by
either party upon the trial or other proceeding against any party giving
or receiving the notice, subject to all legal exceptions. But if the par-
ties attend at the examination, no objection to the form of an interroga-
tory shall be made at the trial, unless the same was stated at the time
of the examination. If the deposition be taken by reason of the absence
or intended absence from the port or city, of the witness, or because he
is too infirm to attend, proof shall be made at the trial that the witness
continues absent, or infirm, to the best of deponent's knowledge or belief.
The deposition thus taken may also be read in the case of the death
of the witness. A deposition thus taken may be read in any stage of the
same action or proceeding, hy either party, and shall then be deemed
the evidence of the party reading it.
DEPOSITIONS TAKEN OUT OF THE EMPIRE.
173. The testimony of a witness out of this empire may be taken by
deposition in an action at any time after service of the summons or the
appearance of the defendant, and in a special proceeding, at any time
after a question of fact has arisen therein. The deposition shall be taken
upon a commission issued from the court under the seal thereof, upon
an order of the court or judge thereof, on the application of either party,
upon five days' previoas notice to the other. It shall be issued to a per-
JUDICIAL EXTRATERRITORIAL RIGHTS.
163
son agreed upon between the parties, or if they do not agree, to some
officer selected by the officer granting the commission.
174. Such proper interrogatories, direct and cross, as the respective
parties may prepare, to be settled, if the parties disagree as to their
form, by the court or officer granting the order for the commission, or a
day fixed in the order may be annexed to the commission, or when the
parties agree to that mode, the examination may be without written
interrogatories.
175. The commission shall authorize the commissioner to administer
an oath to the witness, and to take his deposition in answer to the inter-
rogatories; or when the examination is to be without interrogatories, in
respect to the question in dispute; and to certify and dispatch the depo-
sition to the court sealed in an envelope, directed to the court or other
person designated, or agreed upon. A trial or other proceeding shall
not be postponed by reason of a commission not having been returned,
except upou evidence satisfactory to the court that the testimony of the
witness is necessary, and that proper diligence has been used to ob-
tain it.
ADMINISTRATION OF OATHS AND AFFIRMATIONS.
176. Every court of the United States in the empire of Japan, and
every clerk thereof and every officer authorized to take testimony or to
decide upon evidence, in any proceeding, shall have power to admin-
ister oaths or affirmations.
177. When a person is sworn who believes in any other than the
Christian religion, he may be sworn according to the peculiar ceremonies
of his religion, if there be any such : Provided, That any witness who
desires it may, at his option, instead of taking an oath, make his solemn
affirmation or declaration, by assenting when addressed in the following
form: “You do solemnly affirm that the evidence you shall give in this
issue (or matter) pending between and shall be the truth,
the whole truth, and nothing but the truth.? Assent to this affirmation
shall be made by the answer, “I do.”. A false affirmation or declaration
shall be deemed perjury, equally with a false oath.
INSPECTION OF DOCUMENTS AND WRITINGS.
178. Any court in which an action is pending, or a judge thereof, may
upou notice order either party to give to the other, within a specified .
time, an inspection and copy or permission to take a copy of any book,
document, or paper in his possession or under his control, containing
evidence relating to the events of the action. If compliance with the
order be refused, the court may exclude the book, document, or other
paper from being given in evidence; or if wanted as evidence by the
party applying, may presume it to be such as he alleges it to be, and
the court may also punish the party refusing for a contempt. This sec-
tion shall not be construed to prevent a party from compelling another
to produce books, papers, or documents, when he is examined as a wit-
ness.
179. There shall be no evidence allowed of the contents of a writing,
other than the writing itself, except in the following cases :
ist. When the original has been lost or destroyed, in which case proof
of the loss or destruction shall first be made.
2d. When the original is in the possession of the party against whom
the evidence is offered, and he fails to produce it after reasonable
notice.
164.
JUDICIAL EXTRATERRITORIAL RIGHTS.
3d. When the original is a record or other document in the custody
of a public officer of the United States.
4th. When the original is recorded, and a certified copy is made evi-
dence by a law of the United States.
180. The party producing a writing as genuine which has been altered,
or aſypears to have been altered after its execution, in a part material to
the question in dispute, and such alteration is not noted on the writing,
shall account for the appearance or alteration. He may show that the
alteration was made by another, without his concurrence, or was made
with the consent of the parties affected by it, or otherwise properly or
innocently made. If he do that, he may give the writing in evidence,
but not otherwise.
181. The records and judicial proceedings of any court of the United
States in this empire may be proved by the production of the original,
or a copy thereof, certified by the court, under the seal of the court, tó
be a true copy of such record.
182. The records and judicial proceedings of the courts of the United
States, or of any State or Territory thereof, may be proved or admitted
in the courts in this empire by the attestation of the clerk, and the seal
of the court annexed, if there be a seal, together with a certificate of
the judge, chief justice, or presiding magistrate, as the case may be,
that the said attestation is in due form.
183. A judicial record of a foreign country may be proved by the pro-
duction of a copy thereof, certified by the clerk, with the seal of the court
annexed, if there be a clerk and seal, or by the legal keeper of the
record, with the seal of his office annexed, if there be a seal, to be a true
copy of such record, together with a certificate of a judge of the court
that the person making the certificate is the clerk of the court, or the
legal keeper of tbe record, and, in either case, that the signature is gen-
unine and the certificate in due forin; and also together with the certifi-
cate of the ininister or comunissioner of the United States, or of a con-
sul of the United States, in such foreign country, that there is such a
court, specifying generally the nature of its jurisdiction and verifying
the signature of the judge and clerk, or other legal keeper of the record.
184. A copy of the judicial record of a foreign country shall also be
admissible in evidence upon proof-
1st. That the copy offered has been compared by the witness with the
original and is an exact transcript of the whole of it;
2d. That such original was in the custody of the clerk of the court or
other legal keeper of the same; and
3d. That the copy is duly attested by a seal—which is proved to be
the seal of the court where the record remains, if it be the record of a
court—or if there be no such seal, or if it be not a record of a court, by
the signature of the legal keeper of the original.
185. Printed copies in volumes of statutes, codes, or other written laws
enacted by the United States, or any State or Territory thereof, or for-
eign governments, purporting or proved to have been published by the
authority thereof, or proved to be commonly admitted as evidence of
the existing law in the courts and judicial tribunals of such State, Ter-
ritory, or government, shall be admitted by the courts and officers of this
empire on all occasious as presumptive evidence of such laws.
186. A seal of a court or a public office, when required to any writ, or
process, or proceeding, or to authenticaté a copy of any record or docu-
ment, may be impressed with wax, wafer, or any other substance, and
then 'attached to the writ, prosess, or other proceeding, or to the copy
of the record or document, or it may be impressed on the paper alone.
JUDICIAL EXTRATERRITORIAL RIGHTS.
165
WRIT OF CERTIORARI.
187. A writ of certiorari, or writ of review, may be granted on appli-
cation by any court of the United States in this empire; the writ shall
be granted in all cases when an inferior tribunal, board, or officer exer-
cising judicial functions has exceeded the jurisdiction of such tribunal,
board, or officer, and there is no appeal, nor, in the judgment of the
court, any plain, speedy, and adequate remedy.
188. The application shall be made on affidavit by the party bene-
ficially interested, and the court may require a notice of the application
to be given to the adverse party, or may grant an order to show cause
why it should not be allowed, or may grant the writ without notice.
189. The writ may be directed to the inferior tribunal, board, or to
any person having the custody of the record or proceedings to be certi-
fied. When directed to a tribunal, the judge thereof, or the clerk, if
there be one, shall return the writ with the transcript required.
190. The writ shall command the party to whom it is directed to cer-
tify fully to the court issuing the writ, at a specified time and place, and
annex to the writ'a transcript of the record and proceedings (describing
or referring to them with sufficient certainty), that the same inay be re-
viewed by the court, and requiring the party in the mean time to desist
from further proceedings in the matter to be reviewed.
191. If a stay of proceedings be not intended, the words requiring the
stay shall be omitted froin the writ; these words may be omitted or in-
serted in the sound discretion of the court; but, if omitted, the power
of the inferior court or officer shall not be suspended, nor the proceed-
ing's be stayed.
192. The writ shall be served in the same manner as a summons in a
civil action, except when otherwise expressly directed by the court.
193. The review upon this writ shall not be extended further than to
determine whether the inferior tribunal, board, or officer, has regularly
pursued the authority of such tribunal, board, or officer.
194. If the return of the writ be defective, the court may order a further
return to be madle. When a full return has been made the court sball
proceed to hear the parties, or such of them as may attend for that pur-
pose, and may thereupon give judgment either affirming or annulling
or modifying the proceedings below.
195. A copy of the judgment, signed by the judge of the court or the
clerk thereof, shall be transmitted to the inferior tribunal, board, or offi-
cer, having the custody of the record or proceeding certified up.
196. A copy of the judgment, signed by the judge or clerk, entered
upon or attached to the writ and return, shall constitute the judgment
roll. An appeal, when allowed by law, 'may be taken from the judg-
meut in the same manner and upon the same terms as from a judgment
in a civil action.
WRIT OF MANDAMUS.
.
197. Writs of mandamus may be issued by any court of record of the
United States in the empire of Japan to any inferior tribunal, corpora-
tion, board, or person, to compel the performance of an act, which the
law specially enjoins as a duty resulting from an office, trust, or station ;
or to compel the admission of a party, to the use and enjoyment of a
right or office to which he is entitled, and from which he is unlawfully
precluded by such inferior tribunal, corporation, board, or person. This
writ shall be issued in all cases, when there is not a plain, speedy, and
adequate remedy at law in an ordinary course of procedure. It shall
166
JUDICIAL EXTRATERRITORIAL RIGHTS.
be issued upon affidavit on the application of the party beneficially inter-
ested.
198. The writ shall be either alternative or peremptory. The alter-
native writ shall state generally the allegation against the party to
whom it is directed, and command such party, immediately after the
receipt of the writ, or at some other specified time, to do the act required
to be performed; or to show cause before the court, at a specified time
and place, why he has not done so. The peremptory writ shall be in a
similar form ; excepting the words requiring the party to show cause
why he has not done as commanded, which shall be omitted, and a re-
turn day shall be inserted.
199. When the application to the court is made without notice to the
adverse party, and the writ be allowed, the alternative writ shall be
issued first; but if the application be upon due notice, and the writ be
allowed, the peremptory may be issued in the first instance. The notice
of the application when given shall be at least five days. The writ shall
not be granted by default. The case shall be heard by the court, whether
the adverse party appear or not.
200. On the return of the alternative, or the day on which the appli-
cation of the writ is noticed, or such further day as the court may allow,
the party on whom the writ or notice shall have been served may show
cause by answer under oath, made in the same manner as an answer to
a complaint in a civil action.
201. On the return day of the writ, unless a postponement should be
asked for and granted, the court shall proceed to try and determine the
issues of law and fact raised in the case in the same manner as the trials
of other civil actions are conducted. If judgment be given for the ap-
plicant he may recover also such damages as by the evidence it appears
he has sustained, together with costs; and for such damages and costs
an execution may issue, and a peremptory mandate shall be issued with-
out delay.
202. The writ shall be served in the same manner as a summons in a
civil action, except when otherwise expressly directed by the court.
203. When a peremptory mandate has been issued and directed to
any inferior tribunal, corporation, board, or person, if it appear to the
court that any member of such tribunal, corporation, or board, or such
person upon whom the writ has been personally served, has, without
just excuse, refused or neglected to obey the same, the court may, upon
motion, impose a fine not exceeding one thousand dollars. In case of
persistence in a refusal of obedience, the court may order the party to
be imprisoned for a period not exceeding three months, and may make
any orders necessary and proper to the complete enforcement of the writ.
If a fine be imposed upon a judge or consul, or other officer, who draws
a salary from the United States Government, a certified copy of the
order may be forwarded to the Secretary of the Treasury, and the
amount thereof may be retained from the salary of such judge or officer.
Such consul, judge, or officer, for his willful disobedience, shall also be
deemed guilty of a misdemeanor in office.
t
CONTEMPTS.
204. The following acts or omissions shall be deemed contempts:
1st. Disorderly, contemptuous, or insolent behavior toward the judge
while holding court, or engaged in his official duties at chambers, or
toward referees or arbitrators while sitting on a reference or arbitration,
;
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JUDICIAL EXTRATERRITORIAL RIGHTS.
167
tending to interrupt the due course of the trial, reference, or arbitra-
tion, or other judicial proceeding.
2d. A breach of the peace, boisterous conduct, or violent disturbance
in presence of the court, or in its immediate vicinity, tending to inter-
rupt the due course of a trial or other judicial proceeding.
3d. Disobedience or resistance to any lawful writ, order, rule, or pro-
cess issued by the court or judge at chambers.
4th. Disobedience of a subpæna duly served, or refusing to be sworn
or answer as a witness.
5th. Rescuing any person or property in the custody of any officer by.
virtue of an order or process of such a court or judge at chambers.
205. When a contempt is committed in the immediate view and pres-
ence of the court or judge at chambers it may be punished summarily;
for which an order shall be made, reciting the facts as occurring in such
immediate view and presence, adjudging that the person proceeded
against is thereby guilty of a contempt, and that he be punished as
therein described. When the contempt is not committed in the imme-
diate view and presence of the court or judge at chambers, an affidavit
shall be presented to the court or judge, of the facts constituting the
contempt, or a statement of the facts by the referees or arbitrators.
206. When the contempt is not committed in the immediate view and
presence of the court or judge, a warrant of attachment may be issued
to bring the person charged before the court to answer. The warrant
may be made returnable forthwith, or at such time and place as the
court may direct; it shall be directed to the marshal, who shall serve
the same as directed, and return the warrant into court with his proceed-
ings under it indorsed thereon.
207. When the person arrested has been brought up, or appeared, the
court or judge shall proceed to investigate the charge and shall hear
any answers which the person arrested may make to the same, and may
examine witnesses for or against him, for which an adjournment may be
had from time to time.
208. Upon the answer and evidence taken, the court, or judge, shall
determine whether the person proceeded against is guilty of the con-
tempt charged, and if it be adjudged that he is guilty of contempt a fine
may be imposed on him not exceeding five hundred dollars, or he may
be imprisoned not exceeding five days, or both.
209. When the contempt consists in the omission to perform an act
which is yet in the power of the person to perform, he may be imprisoned
until he have performed it, and in that case the act shall be specified in
the warrant of commitment.
210. When the warrant of arrest has been returned served, if the per-
son arrested do not appear on the return day, the court or judge may
issue another warrant commanding his summary arrest and production,
which shall at once be served by the marshal to whom it is directed,
by his arresting and producing before the court, or judge, the person
named.
211. Whenever by the provisions of this chapter an officer is required
to keep a person arrested on a warrant of attachment in custody, and
to bring him before a court or judge, the inability from illness or other-
wise of the person to attend shall be a sufficient excuse for not bringing
and the officer shall not confine a person arrested upon the war-
rant in a prison, or otherwise restrain him of personal liberty, except so
far as may be necessary to secure his personal attendance.
him up,
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JUDICIAL EXTRATERRITORIAL RIGHTS.
MISCELLANEOUS PROVISIONS.
212. Every direction of a court or judge, made or entered in writing,
and not included in a judgment, is denominated an order. An applica-
tion for an order is a motion,
21.3. When a written notice of a motion is necessary it shall be given
if the court be held in the same port or city with both parties, five days
before the time appointed for the hearing; otherwise, ten days; but the
court or judge may prescribe a longer or a shorter time.
214. When a notice of a motion is given, or an order to show cause is
made, returnable before a judge or court, and at the time fixed for the
motion, or on the return day of the order, the judge or court is unable
then to hear the parties, the matter may be deferred for a reasonable
length of time.
215. Written notices and other papers, when required to be served on
the party or attorney, shall be served in the manner prescribed in the
next three sections, where not otherwise provided; but nothing in this
title shall be applicable to original or final process, or any proceedings,
to bring a party into contempt.
216. The service may be personal, by delivery to the party or attor-
ney on whoin the service is required to be made, or it may be as follows:
ist. If upon an attorney, it may be made during his absence from his
office by leaving the notice or other papers with his clerk therein, or
with a person having charge thereof, or, when there is no person in the
office, by leaving them, between the hours of eight in the morning and
six in the afternoon, in a conspicuous place in the office; or if it be not
open so as to admit of such service, then by leaving them at the attor-
ney's residence with some person of suitable age and discretion; and if
his residence be not known, then by putting the same, inclosed in an en-
velope, into the post-office, directed to such attorney.
2d. If upon a party, it may be made by leaving the notice or other
paper at his residence, between the hours of eight in the morning and
six in the evening, with some person of suitable age and discretion, and
if his residence be not known, by putting the game, inclosed in an en-
velope, into the post-office, directed to the party.
217. Service by mail may be made when the person making the serv-
ice and the person on whom it is to be made reside in different places,
between which there is a regular communication by mail.
218. In case of service by mail, the notice or other papers shall be de-
posited in the post-office, addressed to the person on whom it is to be
served at his place of residence, and the postage paid; and in such case
the term of service shall be increased one day for every twenty-five miles
distance between the place of deposit and the place of address.
219. After appearance, a defendant or his attorney shall be entitled
to notice of all subsequent proceedings of which notice is required to be
given. But when a defendant has not appeared, service of notice or pa-
pers need not be made upon him unless he be imprisoned for want of bail.
220. When a plaintiff or a defendant who has appeared resides out of
this empire, and has no attorney in the action or proceeding, the service
may be made on the clerk of the court in which the action is brought
for him, if the court have a clerk, and if it has not, by leaving the same
with the judge of the court. But in all cases when a party has an at-
torney in the action or proceeding, the service of papers, when required,
shall be upon the attorney instead of the party, except of subpænas,
writs and other process issued in the suit, and of papers to bring him
into contempt.
JUDICIAL EXTRATERRITORIAL RIGHTS.
169
221. Successive actions may be niaintained upon the saine contract
or traiisaction whenérer, after the former action, a view cause of action
arises therefrom.
222. Whenever two or inore actions are pending at one time, between
the same parties and in the same court, upon causes of action which
might have been joined, the court may order the actions to be consoli-
dated into one.
223. An action may be brought by one person against another for the
purpose of determining an adverse claim which the latter makes against
the foriner for money or property upon an alleged obligation; and also,
two or more persons for the purpose of compelling one to satisfy a debt
due to the other, for which the plaintiff is bound as security.
224. The court shall keep among its records a register of action; it
shall enter therein the title of the action, with brief notes under it from
time to time of all papers filed and proceedings had therein.
225. The time within wlich an act is to be done, as provided in these
regulations, shall be computed by excluding the first day and including
the last; if the last be Sunday it shall be excluded. When the act to
be done relates to the pleadings in the action, or the undertakings to be
filed, or the justification of sureties, or the service of notices other than
of appeal, or the preparation of statements, or of bills of exceptions, or
of amendinent thereto, the time allowed in these regulations may be ex-
tended, for good cause shown, by the court in which the action is pend-
ing or a judge thereof; but such extension shall not exceed thirty days
beyond the time herein prescribed, without the consent of the adverse
party.
226. An affidavit, notice, or other paper without the title of the action
or proceeding in which it is made, or with a defective title, shall be as
valid and effectual for any purpose as if duly entitled, if it intelligibly
refute such action or proceeding.
227. When a cause of action has arisen in the United States of
America, or in some foreign country, and by the laws thereof an action
thereon cannot be maintained there against a person by reason of lapse
of time, an action thereon shall not be maintained against him here.
1
MARRIAGE.
228. Each consul shall record all marriages solemnized by him in a
book to be kept in his office for that special purpose.
i
DIVORCE.
229. Divorces may be granteil from the bonds of matrimony, upon the
following grounds:
1st. Habitual drunkenness; 2.1, extreme cruelty; 3d, willful desertion
by one party of the other for a period of over two years; 4th, failing
willfully to supply the wife with the common necessaries of life, having
the ability so to do, for a period of over two years; 5th, adultery of
either party, remaining unconiloned at the time the action is brought;
and, 7th, conviction of either party of a felony. To entitle a party to
maintain an action for a divorce in any of the United States courts in
the empire of Japan, it must be alleged in the complaint, and proved at
the trial, that the applicant, for (6) six months next preceding the time
of commencing the action, has been, and still is an actual resident of
Japan. In proceedings of this nature, the courts are authorized to
-
170
JUDICIAL EXTRATERRITORIAL RIGHTS.
make and enforce all suitable orders in relation to the care and disposi-
tion of the children of the parties to the action and in relation to com-
pelling the payment of alimony, either pendente lite or subsequent to
the determination of the case; and also, to make suitable disposition of
all common property of or belonging to the parties to the action.
BIRTES AND DEATHS.
280. The births and deaths of every American citizen within the limits
of his jurisdiction shall likewise be kept recorded by each American
consul.
STEAMERS, VESSELS, AND BOATS.
231. All steamers, vessels, and boats, shall be liable-
1st. For services rendered on board, at the request of or on contract
with their respective owners, masters, agents, or consignees.
2d. For supplies furnished for their use, at the request of their re-
spective owners, masters, agents, or consignees.
3d. For materials furnished for their construction, repair, or eqipment.
4th. For such wharfage, anchorage, and light dues,
as may by subse-
quent convention or treaty between Japan and the United States be
allowed to be charged against them in this empire.
5th. For non-performance or mal-performance of any contract for the
transportation of persons or property, made by their respective owners,
masters, agents, or consignees.
6th. For injuries committed by them to person or property.
The said several causes of action shall constitute liens upon all steam-
ers, vessels, or boats, and have priority in their order herein enumerated,
and shall have preference over all other demands: Provided, Such liens
shall only continue in force for the period of one year from the time the
cause of action occurred.
232. Actions for demands arising upon any of the grounds specified
in the preceding section may be brought directly against such steamers,
vessels, or boats.
233. The complaint shall designate the steamer, vessel, or boat by
name, and shall be verified by the oath of the plaintiff, or some one on
his behalf.
234. The summons attached to a certified copy of the complaint may
be served on the master, mate, or any other person having charge of
the steamer, vessel, or boat, or the owner thereof.
235. The plaintiff, at the time of issuing summons, or at any time after-
ward, may have the steamer, vessel, or boat, against which the action
is brought, attached, as security for the satisfaction of any judgment
that may be recovered therein, as provided for attachments in other
cases by this decree, and upon similar conditions.
236. The marshal' to whom the writ is directed and delivered shall
execute the same without delay, and shall, unless an undertaking to re-
lease the attachment be given, attach and keep in his custody the steamer,
vessel, or boat named therein, with its tackles, apparel, and furniture,
until discharged by due course of law; but the marshal shall not bé
authorized by any such writ to interfere with the discharge of any mer.
chandise on board of such steamer, vessel, or boat, nor with the removal
of any trunks or other property of passengers, or of the captain, mate,
seaman, steward, cook, or other person employed on board.
237. The owner, master, agent, or consignee of the steamer, vessel, or
boat against which the action is brought may appear and answer or
JUDICIAL EXTRATERRITORIAL RIGHTS.
171
plead to the action, and may except to the sufficiency of the sureties, on
the undertaking filed on the behalf of the plaintiff, and may require
sureties to justify, as in actions against individuals, upon bail or arrest.
238. All proceedings in action under the provisions of this chapter
shall be conducted in the same manner as in actions against individuals,
except as otherwise herein provided, and in all proceedings subsequent
to the complaint, the steamer, vessel, or boat may be designated as de-
fendant.
239. After the appearance. to the action of the owner, master, agent,
or consignee, the attachment may, on motion, be discharged in the same
manner and on like terms and conditions as attachments in other cases,
subject to the provisions of the second section following this.
240. If the attachment be not discharged, and a judgment be recov-
ered in the action in favor of the plaintiff, and an execution be issued
thereon, the marshal shall sell at public auction, after publication of
notice of such sale for ten days, the steamer, vessel, or boat, with its
tackle, apparel, and furniture, or such interest therein as may be neces-
sary, and shall apply the proceeds of the sale as follows:
1st. When the action is brought for demands, other than the wages
of mariners, boatmen, and others employed in the service of the steamer,
vessel, or boat sold, to the payment of the amount of such wages, as
specified in the execution.
2. To the payment of the judgment and costs, including his fees;
and,
3d. He shall pay any balance remaining to the owner, master, agent,
or consignee who may have appeared in the action; or if there [be] nó
appearance, then into court, subject to the claim of any party or par-
ties legally entitled thereto.
241. Any mariner, boatman, or other person employed in the service
of the steamer, vessel, or boat attached, who may wish to assert his
claim for wages against the same (the attachments being issued for
other demands than such wages), shall file an affidavit of his claim, set-
ting forth the amount and the particular service rendered, with the clerk
of the court, and thereafter no attachment shall be discharged upon
filing an undertaking, unless the amount of such claim, or the amount
determined as provided in the next section, be covered thereby, in addi-
tion to the other requirements. And any execution issued against such
steamer, vessel, or boat, upon judgment recovered thereafter, shall di-
rect the application of the proceeds of any sale, first, to the payınent of
the amount of such claims filed, or the amount determined as provided
in the next section, which the clerk shall insert in the writ; and, second
to the payment of the judgment and costs, and marshal's fees, and shall
direct the payment of any balance to the owner, master, or consignee.
who may have appeared in the action; but if no appearance be made
by them therein it sliall direct the deposit of the balance in court.
242. If the claim of the mariner, boatman, or other person filed with
the court, or its clerk, as provided in the last section, be not contested
within five days after notice of the filing thereof by the owner, master,
agent, or consignee of the steamer, vessel, or boat against which the
claim is filed, it shall be deemed to be admitted; but if contested, the
court, or its clerk, shall indorse upon the affidavit thereof a statement
that it is contested and the grounds of the contest, and the court shall,
as soon as convenient thereafter, summarily hear and determine thé
same.
213. The notice of the sale published by the marshal shall contain a
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JUDICIAL EXTRATERRITORIAL RIGHTS.
statement of the measurement and tonnage of the steamer, vessel, or
boat, and a general description of her condition.
· 244. From orders and judgments under this chapter an appeal may
be taken by the owner, master, agent, or consiguee on the same terms
and conditions as appeals in actions against individuals.
COSTS.
245. The measure and mole of compensation of attorneys and coun-
sellors shall be left to the agreement, express or implied, of the parties,
but there shall be allowed to the prevailing party his necessary costs
and disbursements in the action, or special proceeding in the nature of
an action, except as herein otherwise provided.
246. Where several actions are brought on one bond, undertaking,
promissory note, bill of exchange, or other instrument in writing, or in
any other case, for the same cause of action, against several persons,
who might have been joined as defendants in the same action, no costs
shall be allowed to the plaintiff in inore than one of such actions, which
may be at lis election, if the party proceeded against in the other ac-
tions were at the commencement of the previous action openly within
this empire ; but the disbursements of the plaintiff shall be allowed to
him in each action.
247. Costs shall be allowed of course to the defendant upon a judg-
ient in his favor, except as herein otherwise provided. When there
are several defendants in an action, making several defenses, such of the
defendants as are not recovered against shall be allowed their proper
costs. When a new trial is ordered, or a judgment is modified, the costs
upon appeal shall be in the discretion of the appellate court.
248. When in an action for the recovery of money only the defendant
alleges in his answer that before the commencement of the action he
tendered to the plaintiff the full amount to which he was entitled, and
thereupon deposits in court, for the plaintiff, the amount so tendered,
and the allegation be found to be true, the plaintiff sliall not recover
costs, but shall pay costs to the defendant.
249. In an action prosecuted or defended by an executor, administra-
tor, trustee of express trust, or a person expressly authorized by statute,
costs may be recovered as in an action by or against a person prosecut-
ing or defending in his own right; but such costs shall, by the judg-
ment, be made chargeable only upon the estate, fund, or party repre-
sented, unless the court shall direct the same to be paid by the plaintiff
or defendant personally for mismanagement or bad faith in the action or
defense.
250. When the decision of a court of inferior jurisdiction, in a special
proceeding, is brought before a court of higher jurisdiction, for a review
in any other way than by appeal, the same costs shall be allowed as in
cases of appeal, and may be collected by execution, or in such manner
as the court may direct, according to the nature of the case.
251. The party in whose favor judgment is rendered in any action or
proceeding, who claims his costs, shall deliver to the court or its clerk
withiu two days after the decision is rendered (unless the court other-
wise specially direct) a memorandum of the items of his costs and nec-
essary disbursements in the action or proceeding, which memorandum
shall be verified by the oath of the party or his attorney, stating that
the items are correct and that the disbursements have been actually
made or necessarily incurred and are to be paid in the action or proceed-
ing.
JUDICIAL EXTRATERRITORIAL RIGHTS.
173
252. In entering up a judgment, costs and interest shall be included
to the date of entry, and if the judgment be for the recovery of money
alone, or for the value of personal property taken and unjustly detained,
the judgment shall bear interest at the rate of twelve per cent. per an-
num until paid, and when required execution shall issue for the amount
of the payment and interest due thereon at the date of issuing such writ,
with subsequent accrued costs.
253. When the plaintiff in an action resides out of this empire, or is a
foreign corporation, security for the costs and charges which may be
awarded against such plaintiff may be required by the defendant. When
required, all proceedings in the action shall be stayed until an undertak
ing, executed by two or more persons, be filed with the court to the ef-
fect that they will pay such costs and charges as may be awarded against
the plaintiff by judgment, or in the progress of the action, not exceed
ing the sum of three hundred dollars. Each of the sureties shall justify
on the undertaking as required in attachment and other proceedings.
A failure for thirty days after being served with such notice to give such
security shall operate as a discontinuance of the action.
.
FEES.
254. In consular courts :
In all cases when the amount in question is not more than $300.
$5 00
In all cases where it is over $500...
15 00
In personal actions and special proceedings, not brought for the recovery of
money or damages ; if tlie action or proceeding be not defended, and be de-
termined without a trial...
5 00
Tu such actions if a defense is made and a trial had.
15 00
255. Clerk's fees :
For issuing all writs, warrants, attachments, or other compulsory process, in-
cluding the seal.
1 50
For docketing every snit commencerl.
1 00
For issuing writs of execution, including seal..
1 00
For suninonses and subpænas, including seal...,
50
For recording the testimony in the case, for each hundred words
20
For copying the same for transcript upon au appeal, or for any other purpose
at the request of the party; or for making copies of any other documents or
papers, when requested, on appeal or otherwise, for each one hudred words 20
For drawing notices, orders, or judgments, for each hundred words or a frac-
tion thereof.
20
For every seal to process issued, other than upon attachments, writs, warrants,
suminopses, Alibpanas, or other compulsory process.
1 00
For filing each paper upon the return of the same by the marshal, and for all
papers filed in court in any action or proceeding for each...
10
For administering each oath or affirmation...
25
256. Marshal's fees :
For apprehending a deserter and delivering him on board the vessel he deserted
from, to be paid by the vessel before leaving port.....
5 00
For searching for the same on request of the captain or owner, and if not found,
his services to be certified by the consul, and on his order to be paid by the
said ship.
2 00
For serving any writ, warrant, attachment, or other compulsory process, for
each person served
2 00
For serving simmons, each person
1 00
For returning all writs, attachments, warrants, and stunionses.
For each bail bond made out and received by him, and approved.
1 00
For receiving a prisoner under a commitment or discharging him from arrest
by order of the court.
2 00
For subpænaing a witness.
50
For copy of subpæna and return on the original.
20
For each day's attendance upon court during a trial or an investigation
300
For levying an execution, or executing a writ of restitution.
1.50
For advertising property for sale.
200
50
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JUDICIAL EXTRATERRITORIAL RIGHTS.
1 00
For releasing property from seizure under execution when ordered so to do by
the court or the plaintiff..
$300
For traveling fees in serving all processes, each mile actually traveled in going
and returning
15
For serving every notice not heretofore provided for, upon order of the court or
one of the parties in action, in addition to the usual traveling fees
50
For selling property under execution, or personal property held under an attach-
ment, when the amount collected does not exceed one thousand dollars, 5 per
cent.
If over one, and not exceeding five thousand dollars, 3 per cent.
If over five thousand dollars, 2 per cent.
257. Interpreter's fees :
For each day's attendance upon court during the progress of a trial or exami-
nation, upon order of the court
3 00
For making any required translations of any document or paper containing not
over one hundred words
1 00
For each additional hundred words.
258. Witness's fees :
For every day's attendance at court under a subpava...
1 50
For each mile of travel in going to or returning from court
15
259. Assessors :
For each day's attendance upon court, when strord and serving as such, includ-
iug traveling fees
3 60
260. Ministerial court:
The fees of the court and its officers shall be the same as hereinbefore prescribed
for the consular courts, except in cases brought before said court, upon ap-
peal, in all of which cases a court fee shall be charged of
15 00
In addition to which, the same fees as consuls are allowed to charge shall be
allowed for the issuance, filing, &c., of all papers and process, and also admin-
istering oaths, &c.
The fees of clerk, marshal, interpreters, &c., in a ministerial court, shall be the
same in appellate as in other cases.
Provided, That no other or greater charges shall in any action or pro-
ceeding be made for any service or services above specified by any court
or any officer thereof: And provided further, That after the determination
of every action and proceeding the court or its clerk shall enter in the
judgment-book, in which the judgment in the case is entered, a full and
particular statement of all fees of the court, marshal, interpreter, wit-
nesses, and assessors allowed and paid in the action; and shall, upon
the demand of any party to any action, or his attorney, furnish such
statement in detail, or a copy thereof, as a condition to the right to en-
force the collection of the same.
HABEAS CORPUS.
Care
261. Any American citizen in Japan illegally restrained from his per-
sonal liberty may, by petition to any court of the United States in said
empire, obtain the benefit of the writ of habeas corpus.
262. The application for such writ shall be made by a petition veri-
fied by the petitioner, or some one on his behalf, setting forth the citi-
zenship and place of imprisonment of the applicant, with a brief state-
ment of the reasons that led to his imprisonment, to the best of his
knowledge and belief, and also a specific statement, as to the person in
whose custody he then is.
263. The court to which such petition is presented shall forth with is.
sue the writ, which shall be directed to the person named in said peti-
tion as being the person having the petitioner in his custody; and shall
require such person, at a specified time and place, to appear before the
JUDICIAL EXTRATERRITORIAL RIGHTS.
175
court with the petitioner; and at that time to return the said writ to
the court that issued it, with his reasons for holding said petitioner in
his custody, stated in writing upon said writ.
264. Upon the return day of said writ, and when the petitioner shall
have been brought before the court issuing such writ, the court shall at
once, and in a summary manner, proceed to hear and inquire into the
cause of the petitioner's detention; and to that end may summons and
enforce the attendance of witnesses, with such documents and papers as
may be required, in the same manner as in other cases; and after hear-
ing the cause, may direct the discharge of the petitioner, or may re-
mand him back to the custody of the officer or person holding him
under arrest, and shall award costs as in other cases.
265. If from the return made it appears thatethe person so restrained
is held by virtue of a commitment, warrant, or other process of a court
having jurisdiction over him, and 'over the offense of which he stands
charged or convicted, the court shall restrict its examination to the
question of the regularity of the proceedings and process, by virtue of
which the arrest and imprisonment was directed.
266. Any citizen of the United States, or officer thereof, who shall
willingly neglect, or refuse to obey the order of any court of the United
States in the empire in a proceeding of this nature, shall be liable to
punishment for contempt of court, as in other cases.
ASSESSORS.
267. Persons to be qualified to be chosen, and to act as such, must be
male citizens of the United States of America, over the age of twenty-
one years, resident in this empire, nominated by the consul of the port
or city where they reside to the minister of the United States of Amer-
ica in the empire, and their nomination approved by him within twelve
months next preceding the time when they are called upon to act as
assessors. And it is hereby made the duty of all consuls of the United
States in the empire of Japan to nominate a list of persons in the month
of January of each year to the minister as assessors, certifying upon
the list sent up by him to the minister that all of the persons thereon
named are known to him, the consul, to be citizens of the United States
of America, and residents of said empire, and to be of good moral char-
acter, and to possess the proper qualifications to act as such; which
list, when approved by the minister, shall be filed. A certified copy of
the same shall be posted up and kept posted in some conspicuous place
in the consulate.
CRIMINAL PROCEEDINGS.
1. Proceedings in criminal cases can only be commenced by a written
complaint, sworn to by the complaining party, and before process under
it shall issue against the person complained of, the judge of the court
with whom the same is filed shall certify thereon in writing that he has
reasonable grounds for believing that the contents of the same are true.
2. The party charged shall immediately after his arrest be provided
with a certified copy of the complaint made against him, and in all cases
shall be entitled to a speedy and a public trial.
3. When the offense charged is such that the party charged is enti-
tled by law to the assessors sitting in the case with the judge, such as-
sessors shall be selected in the manner provided in civil cases; they
shall be similarly sworn, and may be similarly examined, and shall be
176
JUDICIAL EXTRATERRITORIAL RIGHTS.
liable to challenge, either by the defendant or the people, upon any of
the following grounds, to wit:
(1.) That such person has formed or expressed an unqualified opinion
as to the guilt or innocence of the defendant of the crime with which he
stands charged;
(2.) That such person is a material or necessary witness on behalf of
one or both of the parties to the proceeding;
(3.). That such person is related by the ties of consanguinity or affinity
to the complaining witness, or the defendant within the third degree;
(4.) Having served as an assessor or been a witness on a previous trial
of the same person for the same offense; or
(5.) That the person is not a citizen of the United States of America;
or, if such, that his name does not appear on a list of persons selected
by the consul to serve as assessors, which was submitted to and approved
by the minister, as required by law and these regulations.
4. The personal presence of the accused shall in all cases be required
throughout the trial of a criminal case. Before the trial commences,
the complaint against him shall be read over to him by the court, or its
clerk, and he shall be required to plead thereto, which plea shall be
guilty or not guilty; or he may demur to the complaint on any of the
following grounds, to wit: That the court has no jurisdiction over the
person or the offenses charged, or that more than one offense is charged
in the complaint, or that the complaint is so ambiguous and uncertain
that a person of common understanding cannot understand what offense
is charged, with particulars of time, place, and person. In all cases
the plea of the defendant must be personal, anil in all cases of felony
the defendant shall be allowed at least twenty-four hours in which to
plead if he requires it; and in misdemeanors the court shall grant such
time to plead as may be deemed reasonable. Immediately after plead-
ing, the court shall enter the substance of the defendant's plea in its
docket, and the trial shall proceed, unless for good cause shown the
court shall grant an adjournment.
5. The accused shall in all cases be allowed to have the benefit of
counsel in all stages of the case, if provided by himself; and in prose-
cutions for felony, if he have no counsel, the court may appoint some
person to act for and assist him, if he requests it. Reasonable delay
shall also be granted to either party, as in civil cases, to procure mate-
6. The testimony of an absent person may be taken and used in crim-
inal, as in civil cases, when the attendance of such witness cannot be
procured, or when from the nature of the application it (loes not appear
that the application is made solely for delay; or when, if granted, it
will not postpone the trial for an unreasonable length of time.
7. Persons subpoenaed as witnesses shall not be entitled, in a criminal
proceeding, to demand any fees prior to attending as such; nor shall
they be allowed fees in any criminal case, except so ordered by the
court.
8. In all criminal trials the defendant shall be given the benefit of
every reasonable doubt, and is to be considered innocent until he is
proven to be guilty.
9. In all criminal proceedings the complaint shall not charge but one
offense, but the defendant may be convicted of any lesser offense neces-
sarily included within the greater one charged (as that of manslaughter
when the charge is murder). The offense shall be stated with a reason-
able degree of certainty as to the time, place, and manner of its com-
mission; and the evidence admitted in the action shall be confined to
JUDICIAL EXTRATERRITOZIAL RIGHTS. .
177
the allegations of the complaint, and the judgment shall be guilty or
not guilty of the offense as charged.
10. In cases when an appeal is allowed by law, the mode of proceeding
to perfect the appeal shall be the same in criminal as in civil cases.
11. Applications for a new trial in criminal cases shall in the first in-
stance be addressed to the court in which the case was tried; and when
an appeal is taken from the judgment, the appellate court shall have
power to review the proceedings had in relation to the application made
for a new trial; as also all interlocutory orders made in the case.
12. Applications for new trials in criminal cases may be made on
either or all of the grounds stated in the provision in the regulations
relative to applications for new trials in civil cases, except the fourth;
and in the practice governing the making and disposition of the motion,
the courts shall be governed by the said regulations relative to similar
motions in civil cases.
13. A person charged with crime shall have permission to testify on
his own behalf, and shall be informed of this right by the court before
his trial is proceeded with; but the refusal of a person so charged to
testify shall not be construed into being a confession of guilt, or be
allowed to militate against him.
14. When a punishment is by a fine, costs may be included or remitted,
at the court's discretion.
An alternative sentence of not exceeding thirty days' imprisonment
shall take effect on non-payment of any part of the fine or costs adjudged
in any criminal proceeding.
15. Any prisoner, before conviction, may be admitted to bail by the
court which issued the process for his arrest, except in capital cases,
when the proof is evident, or the presumption of his guilt is great. After
conviction and an appeal is perfected, the minister only can admit a
person to bail.
16. A court applied to to release a person upon bail shall at once fix
the amouht of bail required (if the case be a bailable one), and the de-
fendant may then give security in double that sum by an undertaking
conditioned for his appearance at the trial, and that he will render him-
self amenable to the judgment of the court in the action as soon as ren-
dered, and may be given by an undertaking, executed by one or more
sureties, as is provided in cases of arrest and bail in civil cases, with like
justification of the sureties.
17. Any security on any bail bond may, at any time before the trial
of the defendant, surrender him to the court, and be released from his
undertaking upon payment of all costs and charges of the prosecution
to that date. The court, when a defendant is thus surrendered, shall at
once remand him to custody for trial, but may accept new bail.
18. Excessive bail shall in no case be required or exacted.
19. Any complainant nay be required to give security for costs of the
prosecution, including those of the accused, and every complainant not
a citizen of the United States of America, or a subject to the Japanese
empire, shall be required to give such security, unless in the opinion of
the court justice will be better promoted otherwise. When such security
is required by the court and refused, the proceeding may be dismissed.
20. In any criminal proceeding if the defendant be acquitted, and the
court in its judgmententerad in the caseinclude a finding that the prosecu-
tion was without probable cause, it shall direct the party making the
complaint to pay the whole costs of the proceeding, and may by execu-
tion and in a summary manner compel the payment of the same.
21. Consuls will ordinarily encourage the settlement of all prosecu-
S. Mis. 89-12
178
JUDICIAL EXTRATERRITORIAL RIGHTS.
tions other than those for felonies. Compounding a felony shall not be
allowed ; and any person guilty thereof may be tried and punished,
with a similar degree of punishment as by law is provided for the punish-
ment of the felony itself.
22. The punishment of persons convicted of crimes in the courts of
the United States in this empire, except in such cases as are otherwise
provided by law, shall be as follows:
Murder in the first degree shall be punishable by death; murder in
the second degree by imprisonment for life; murder in any other degree,
or manslaughter, by imprisonment for not less than five, nor more than
twenty years. All other felonies by imprisonment not exceeding ten
years. For misdemeanors at the common law, the punishment shall not
in any case exceed a fine of five hundred dollars, or imprisonment for
the period of six months; or by both such fine and imprisonment.
23. A person convicted of felony, or twice convicted of misdemeanor,
may be sentenced to deportation, and perpetual banishment from the
empire.
24. All crimes shall be known as felonies or misdemeanors, as thus
classified by the rules of the common law.
25. Costs shall be the same in criminal as in civil cases, except that of
witnesses; but shall in no case be charged against the Government of
the United States of America.
C. E. DE LONG.
LEGATION OF THE UNITED STATES TO JAPAN,
Yokohama, September 1, 1870.
UNITED STATES CONSULATE, YEDDO, JAPAN, September 2, 1870.
Assented to.
CHARLES O. SHEPARD,
United States Consul.
UNITED STATES CONSULATE, KANAGAWA, JAPAN, September 6, 1870.
Assented to.
LEMUEL LYON,
United States Consul.
UNITED STATES CONSULATE, OSAKA
AND HIGO, JAPAN, September 8, 1870.
T. SCOTT STEWART,
United States Consul.
Assented to.
UNITED STATES CONSULATE, NAGASAKI, JAPAN, September 14, 1870.
Assented to.
WILLIE P. MANGUM,
United States Consul.
UNITED STATES CONSULATE, HAKODADI, JAPAN,
September 21, 1870.
Assented to
E. E. RICE
United States Consul.
JUDICIAL EXTRATERRITORIAL RIGHTS.
179
APPENDIX X.
LAND MUNICIPAL REGULATIONS AT SHANGHAI.
LAND REGULATIONS.
011.
1. Boundaries and limits defined.
15. Consuls may at any time call meeting
2. . Mode of acquiring land.
of land renters, &c.
3. Final settlenient and title deeds. 16. Cemeteries for foreigners, Cbinese
4. Registration of land and charges there-
graves, &c.
on
17. Breach of regulations.
5. Transfer of lots.
18. Election of council and qualifications
6. Land surrendererl to public rise.
of voters at public meetings.
7. Boundary stoves to be placed.
19. Nomination and voting for council.
8. Chinese Goverument land tax.
20. Vacancies.
9. Road and jettees, assessment ou land 21. Tenure-of-office.
aud houses, rates, dues, and taxes. 22. Questions and quorum.
Consuls to convene meetings of 23. Committees appointed by council.
renters, and other persons enti- 24. Officers.
tled to vote.
25. Funds.
10. Land renters and other's, &c.; to ap- 26. Persons acting in execution of these
point committee or counci).
regulations not to be personally
11. Committee or council to bave power liable.
to niake by-laws.
27. Mode of suing the council.
12. Accounts, how to be anditeri.
28. Board of Chinese delegates.
13. Defaulters, how to be sued.
29. That land renters and rate payer's
14. How penalties, forfeitures on licenses, shall be taken to mean “electors."
fees, &c., under by-laws, are to be
reco, ered.
PREAMBLE.
Whereas certain regulations, entitled land municipal regulations, for
the peace, good order, and government of all persons residing on the
land set apart by the Chinese authorities for the residence of foreigners,
were settled and agreed upon by the representatives of England, France,
and the United States of America, then being the three treaty powers,
and under their instruction by the consuls of the above-mentioned states
in communication with his excellency Woo, the chief local authority
representing the Chinese Government at Shanghai; and whereas it was
therein provided that hereafter, should any corrections be requisite in
the aforesaid regulations, or should it be necessary to determine on
further rules, or should doubts arise as to the construction of, or powers
conferred thereby, the same should be consulted upon and settled by
the foreign consuls and intendant of circuit, in communication together,
who should equitably decide thereon, and submit the same for confir-
mation to the representatives of their respective countries in China, and
to the Chinese imperial commissioner, managing the affairs at the five
ports; and whereas it is expedient that the said regulations should be
revised, and that further and better provisions should be made for the
peace, good order, and government of all persons residing on the land
so set apart as aforesaid : Be it ordered, That the following revised reg-
ulations which have been agreed to and settled by the undersigned
consuls in communication with his excellency the intendant of circuit,
and the by-laws annexed thereto, shall have effect and be binding upon
all persons residing or being within the limits of the said land so set
180
JUDICIAL EXTRATERRITORIAL RIGHTS.
apart, as to all matters and things comprised therein, from and after the
expiration of one month after the same shall have been affixed and kept
exhibited at the offices of the various foreign consulates.
Given under our respective hands and seals of office at Peking, China,
this
day of
1866.
REGULATIONS.
I. The boundaries of the land to which these regulations apply, are :
1. Those defined in the land regulations settled and agreed upon by
Captain Balfour, Her Britannic Majesty's consul, and Kung-Mooken, in-
tendant of circuit, on the 24th day of September, 1846, and further de-
fined in the agreement entered into between Rutherford Alcock, esq.,
Her Britannic Majesty's consul, and Lin, intendant of circuit, on the
27th day of November, 1846, and set forth in the copy hereunto annexed
of the original map attached to the said agreement.
2. Those described in a proclamation issued by Lin Taoutae, bearing
date the 6th day of April, 1849, in consequence of an arrangement en-
tered into between his excellency on the one part and M. de Montigny,
the consul of France, on the other part, for the assignment of a space
within which French subjects should be at liberty to acquire land and
build residences, &c., an arrangement subsequently approved and con-
firmed by the minister of France, M. de Forth Rouen, and the Imperial
Commissioner Sen, such boundaries being as follows:
To the south, the canal which extends round the walls of the city from
the north gate; to the north, the Yang-King-Pang; to the west, the
temple of Kwan-te and the bridge of the family Chow; to the east, the
river Hwang-poo from the Hai-Kwan or Canton Cousoo house to the
mouth of the Yang-King-Pang.
[NOTE TO 2D SECTION.-As the French Government appear to be de.
sirous of establishing a separate system of regulations for the munici-
pal control of that portion of the general settlement of Shanghai which
is described in the second section hereof, it is understood that so long
as the action of that government shall preclude the extension of the
code of rules herein provided, these rules shall not be considered of any
effect or force in the quarter referred to.]
And 3. On the Flongque side, north, the line from Yang-tsze-poo to
the point opposite the Defence Creek. South, Hwang-poo from the
mouth of the Soochew Creek to the mouth of the creek entering the
Hwang-poo, near the lower limit of the anchorage caled the Yang-tsze-
poo; west, the Shoochew Creek from a point opposite the entrance of
Defence Creek to the Hwang-poo; east, the bank three li along the line
of the Yang-tsze-poo.
· Within the boundaries defined in the map above referred to under the
first head are certain sites, namely, the new custom-house and the tem-
ple of Rewards, together with the land set apart for the use of Her
Britannic Majesty's government, known as the British consulate site,
which are exempted from inunicipal control, as well as any land here-
after to be settled or acquired by the governments of France or the
United States of America, or other gorernments having treaties with
China, for government purposes only; but the British and foreign coul-
sulate sites, the custom-house, and any lands acquired as above, shall
bear their share of the public burdens and municipal taxes.
II. Any person desiring to rent land or purchase houses from the
Chinese proprietors, within the said limits, shall do so in accordance
JUDICIAL EXTRATERRITORIAL RIGHTS.
181
with the provisions laid down in the treaties of foreign powers with
China.
III. It having been ascertained that no impediment exists to the rent-
ing of the land, the parties interested may settle with the Chinese pro-
prietors the price and conditions of sale, and they will then report the
transactions to their consular representatives, and lodge with him the
Chinese proprietor's agreement or deed of sale, in duplicate, accom-
panied by a plan, clearly marking the boundaries. The said 'consular
representative shall then transmit the same to the intendent of the
circuit for examination. If the sale be regular the deeds will be re-
turned to the consul sealed by the intendant of circuit, and the purchase
money can then be paid. If there are graves or coffins on the land
rented, their removal must be a matter of separate agreement, it being
contrary to the custom of the Chinese to include them in the agreement
or deed of sale.
IV. All such conveyance or leases of land so purchased as aforesaid
shall, within one month from time of the completion of the sale, be regis-
tered in the office of the consular representative of the purchaser, and
all charges by way of mortgage, whether of a legal or equitable charac-
ter, shall also be registered in the like manner and within one month of
their execution.
V. That all transfers of land shall be made at the consulate where
the deeds are registered, and also be registered at that of the vendee or
assignee.
VI. It is understood and agreed that land heretofore surrendered by
the various foreign renters to public use, such as roads and the beach
grounds of the rivers within the aforesaid limits, shall remaiu hence-
forth dedicated to the same uses, and as new lots are acquired such
parts thereof as are beach ground shall be held under and subject to
similar uses, and due provision shall be made for the extension of the
lines of road at present laid down as means of communication in the
settlement. To this end the counsel appointed by the land renters and
others entitled to vote on the terms, and in the manner, hereinafter men-
tioned, within the boundaries referred to, will, at the beginning of each
year, examine the map and determine what new lines of road are neces-
sary, and all lands subsequently rented shall only be rented on the
terms of the renter surrendering to the public use the beach ground
aforesaid, if any, and the land required for such roads, and in no case
shall land so surrendered, or which shall now be dedicated to the use
of the public, be resumed, except with the consent of the proper major-
ity of land renters and others who may be entitled to vote as aforesaid
in public meeting assembled, nor shall any act of ownership be exer-
cised over the same by the renters thereof, notwithstanding any payment
by them to the Chinese Government of any ground rent: Provided
alucays, That no act of appropriation or dedication for public uses of
the said beach ground, or of grounds for roads, other than those already
defined shall, contrary to the will of the renters thereof, in any case, be
sanctioned or held lawful under these regulations. On the admission
by vote of public meeting of any tracts of land into the limits of the
municipal authority, the municipal council shall give notice of all roads
and public properties which they intend to set aside in the general in-
terest, and should any citizen or subject of a treaty power, who may
preriously have acquired land within said tract, object to any part of
182
JUDICIAL EXTRATERRITORIAL RIGHTS.
the reservation thus notified, he must, within 14 days after the issue
of the notice, warn his own consul or the municipal council of his ob-
jection, in order that steps may be taken to adjust the claim: Provided
always, That in the event of a failure to effect such adjustment on terms
which may appear reasonable to the consul, the council shall have the
option of declining to accept jurisdiction over the proposed annexation,
which consequently cannot take place. It shall also be lawful for the
land renters and others who may be entitled to vote as hereinafter men-
tioned, in public meeting assembled, to purchase land leading or being
out of the settlement, or to accept land from foreign or native owners
upon terms to be mutually agreed upon between the council and such
foreign or native owners for the purpose of converting the same into
roads or public gardens and places of recreation and amusement, and it
shall be lawful for the council from time to time to apply such portion
of the funds raised under article 9 of these regulations, for the purchase,
creation, and maintenance of such roads, gardens, &c., as may be neces-
sary and expedient: Provided always, That such road and gardens shall
be dedicated to the public use, and for the health, amusement, and
recreation of all persons residing within the settlement.
VII. When land is rented, stones having the nụmber of the lot dis-
tinctly cut thereon, in English and Chinese, must be placed to define
the boundaries thereof, under the supervision of the consul applying for
the land, and of the Chinese local authorities. A time will be named
for the boundary stones to be fixed, in the presence of an officer deputed
by the consul, of the Tepaon of the district, and of the Chinese proprie-
tors and the renter, in such manner that they may not interfere with
the lines of road or the boundaries, or in any other way give cause for
litigation and dispute hereafter.
VIII. The annual rent on all lands leased by foreigners, reserved to
the Chinese Government, shall be payable in advance on the 15th day
of the 12th moon of each year. And all rent in arrear and unpaid on
that day shall be recoverable in a summary, manner, on the complaint
of the intendant of circuits, in the court of the cousular representative
of the defaulting renter.
IX. It being expedient and necessary for the better order and good
government of the settlement that some provision should be made for
the making of roads, building of public jettees, offices, and bridges, and
keeping them in repair, and for cleansing, lighting, watering, and drain-
ing the settlement generally, and establishing a watch or police force
therein, paying the persons necessarily employed in any municipal office
or capacity, or for raising money by way of loan for any of the purposes
aforesaid, the foreign consuls shall so soon after the first day of April
in each year, or when it may appear to them needful, or on the requisi-
tion of the municipal council, or of the renters of land and others entitled
to vote, on the terms hereinafter mentioned, convene a meeting of such
persons to devise ways and means of raising the requisite funds for
these purposes, and at such meeting it shall be competent to the said
persons, or a majority of them, in public meeting duly assembled, to
declare an assessment in the form of a rate to be made on the said land
or buildings: Provided always, That the proportion between the tax on
land and on houses or buildings shall not exceed one-twentieth of one
per cent. on the gross value of land, to one per cent. on the annual rental
of houses; and it shall also be competent for the said persons, or a ma-
jority of them, as aforesaid, to impose other rates or taxes in the form
JUDICIAL EXTRATERRITORIAL RIGHTS.
183.
of dues on all goods landed or shipped or transshipped through the
Chinese custom-house at any place within the said limits; provided the.
said rates or taxes levied in the form of dues shall in no case exceed the
amount of one-tenth of one per cent. on the value of goods landed,
shipped, or transshipped, and in such other forms as may appear requi-
site and necessary for the purposes aforesaid.
X. And whereas it is expedient that the said land renters and others.
as aforesaid, in public meeting duly assembled, under and in accord-
ance with the provisions of the preceding article, should appoint in the
mode hereinafter provided, an executive committee or council, to con-
sist of not more than nine persons, for the purpose of levying the rates,
dues, and taxes herein before mentioned, and applying the funds real-
ized from the same for the purposes aforesaid, and for carrying out the
regulations now made: Be it further ordered, that such committee when
appointed shall have full power and authority to levy and apply such
rates, dues, and taxes, for purposes aforesaid, and shall have power and
authority to sue for all arrears of such rates, dues, and taxes, and re-
cover the same from all defaulters in the courts under whose jurisdiction
such defaulters may be.
XI. When, in pursuance of these regulations, the above-mentioned.
committee or council shall be duly elected, all the power, authority, and
control conferred by the by-laws now sanctioned and annexed to these:
regulations, and all the rights and property which, by such by-laws, are
declared to belong to any committee or council, elected as aforesaid,
shall vest in and absolutely belong to such committee or council, and
to their successors in office, and such successors as are duly elected, and
such committee shall have power and authority from time to time to
make other by-laws for the better enabling them to carry out the object
of these regulations, and to repeal, alter, or amend any such by-laws:
Provided, Such by-laws be not repugnant to the provisions of these
regulations, and be duly confirmed and published: And provided, also,
That no by-law made by the committee under the authority of these reg-
ulations, except such as relate solely to their council or their officers or
servants, shall come into operation until passed and approved by the
consuls and ministers of foreign powers having treaties, and the rate-
payers in special meeting assembled, of which meeting, and object of it,
ten days' notice shall be given.
XII. And whereas it is also expedient that due provision should be
made for the auditing of the accounts of the said committee, and for
the obtaining the approval and sanction of them by the rate-payers in
public meeting duly assembled, be it ordered that the result of the said
audit shall be made kuown, and the said sanction and approval shall
be made at the annual public meeting convened by the consuls as here-
inbefore mentioned.
XIII. And be it further ordered, that it shall be lawful for the said
committee or their secretary to sue all defaulters in the payment of all
assessments, rates, taxes, and dues whatsoever levied under these regu-
lations, and of all' fines and penalties leviable under the by-laws an-
nexed to them in the consular, or the courts under whose jurisdiction
such defaulters may be, and to obtain payment of the same by such
means as shall be authorized by the courts in which such defaulters are
sued: Provided, That in case any one or more of the said defaulters, or
owners, shippers, or consignees of goods refusing to pay, have no consular
.
184
JUDICIAL EXTRATERRITORIAL RIGHTS.
representative to Shanghai, the said committee shall, with consent of
the local authorities, be at liberty to detain and sell such portion of the
goods, or use such other means as, with the consent of the local authori-
ties, may be necessary to obtain such payment of such assessments, rates,
taxes, dues, fines, and penalties, or in respect of land or house assess-
ment to distrain on the land or houses to such an extent as may be re-
quired to satisfy such assessment or dues.
XIV. Be it also further ordered, that any penalty, or forfeiture, or fees,
or licenses provided for in the by-laws framed under the authority of
these regulations, and imposed in pursuance of such by-laws, may be re-
covered by summary proceedings before the proper consular or other
authority, and it shall be lawful for such authority, upon conviction, to
adjudge the offender to pay the penalty or incur the forfeiture as well
as the costs attending the conviction as such authority may think fit.
All fines and penalties levied under these regulations, and the by-laws
framed and to be framed under them, shall be carried to the credit of the
committee in diminution of the general expenditure authorized by the
provisions of these regulations.
XV. Be it further ordered, that it shall be competent for the foreign
consuls, collectively or singly, when it may appear to them needful, or
at the requisition of the electors of land or buildings, to call a public
meeting at any time, giving ten days notice of the same, setting forth
the business upoń which it is convened, for the consideration of any mat-
ter or thing connected with the municipality: Provided always, That such
requisition shall be signed by not less than ten of the said electors, and
that it set forth satisfactory ground for such request. And all resolutions
passed by a majority at any such public meeting, on all such matters
aforesaid, shall be valid and binding upon the whole of the said electors,
if not less than one-third of the said electors are present or represented.
At such meeting the senior consul present shall take the chair, and in
the absence of the consul, then such elector as the majority of voters
present may nominate. In all cases in which electors in public meeting
assembled as herein provided decide upon any matter of a municipal
nature, not already enumerated, and affecting the general interests, such
decision shall first be reported by the chairman to the consuls for their
concurrence and approval, and unless such approval be officially given
such resolution shall not be valid and binding: Provided always, That a
term of two months shall elapse between the date of the resolution and
the signification of approval by the consuls, during which time any per-
son considering himself prejudiced in property or interests by the reso.
lution may represent his case to the consuls for their consideration.
After the expiration of the term of two months the consular approval,
if signified, shall be considered binding.
XVI. Within the said limits lands may be set apart for foreign ceme.
teries. In no case shall the graves of Chinese on land rented by foreign-
ers be removed without the express sanction of the families to whom
they belong, wbo, also, so long as they remain unmoved, must be allowed
every facility to visit and sweep them at the established period, but 110
coffins of Chinese must hereafter be placed within the said limits, or be
left above ground.
XVII. Hereafter, should information of a breach of these regulations
be lodged with any foreign consul, or should the local authorities ad-
dress him thereon, he may, in every case within his jurisdiction, sum
mon or cause to be summoned the offender before him, and if convicted
JUDICIAL EXTRATERRITORIAL RIGHTS.
185
punish him, or cause him to be punished summarily, either by a fine not
exceeding $300, or by imprisoninent not exceeding six months, or in
such other manner as may seem just. Should any foreigner who bas no
consular authority at Shanghai commit a breach of the said regulations,
then and in such case the Chinese chief authority may be appealed to
by the council, through one or more of the foreign consuls, to uphold
the regulations in tlieir integrity, and punish the party so infringing
them.
XVIII. Every foreigner, either individually or as a member of a firm,
residing in the settlement, having paid all taxes due, whose annual pay-
ment of assessment on land or houses, or both, exclusive of all payments
in respect to licensés, shall amount to taels 15, or dollars 20, or upwards,
or who shall be a householder paying a rental of not less than taels 450,
or dollars 600 per annum, or who being a resident of 12 months' stand-
ing shall be in receipt of an annual salary or income of 1,000 taels, shall
be entitled to vote iu the election of the said members of the council, and
at the public meetings, and none shall be qualified to be a member of
the said council unless he shall pay an annual assessment, exclusive of
licenses, of taels 25, or dollars 33; or shall be a householder paying a
rental of taels 900, or dollars 1,200 per annum.
XIX. It shall be competent to any two rate-payers entitled to vote to
nominate any qualified rate-payer for election as a member of the coun-
cil, and all such nominations shall be sent in in writing, with the signa-
tures of the proposer and seconder, as also the assent in writing of the
candidates proposed, that they will serve if elected, at least 14 days
before the day appointed for the election, to the secretary or other off-
cer appointed by the existing council to receive such nominations.
Un the day after the expiration of the time allowed for sending in such
nominations as aforesaid, the existing council shall cause a list of the rate-
payers proposed for election to be advertised in the public journals, and
shall likewise cause such list to be exhibited thenceforward until the day
of election, in some conspicuous place in the council-room, between the
hours of 10 a. m. and 4 p. m.
On the day appointed for the election, should the nuinber of rate-
payers proposed for election as councillors exceed nine, two officers, ap-
pointed by the existing council, shall attend at the place appointed for
the election to receive the votes of the rate-payers. These officers shall
be provided with a list of all the rate-payers duly qualified to vote, and
shall give to each such rate-payers as may be present,* and may require
it, a voting card or paper containing a list of the rate-payers proposed
for election. The voter shall then mark on such voting list the names
of any number of persons, not exceeding nine, for whom he intends to
vote, and shall deposit the list, signed by himself with his own name so
marked, in a close box, provided for the purpose of receiving such list.
The poll shall remain open for two consecutive days, from 10 a. m. to .
3 p. m., at which hour on the second day the poll shall be closed. Im-
mediately upon the close of the poll, two scrutineers, appointed by the
council, shall, without delay, proceed to open the box or boxes, examine
the roting lists, and declare the names of the nine rate payers who
have the greatest number of votes, and who shall thereupon be con-
sidered duly elected as the council for the ensuing municipal year.
Should the number of names proposed for election be exactly nine, it
shall not be necessary to have a polī, but on the day after the expira-
Under these regulations, voting by proxy is practically prevented, as the rate
payer must be present.
*
186
JUDICIAL EXTRATERRITORIAL RIGHTS. .
tion of the time appointed for sending in nominations, the existing couu-
cil shall advertise and make known the names of nine rate-payers pro-
posed, and they shall be considered to be duly elected as the council for
the ensuing municipal year.
Should the number of names proposed for election be less than vine,
then on the day after the expiration of the time appointed for sending
in nominations, the existing council shall advertise and make known the
names of the rate-payers, to be held on the day appointed for the elec-
tion; at which meeting the rate-payers present shall proceed to elect,
either by ballot or otherwise, as they may then decide, as many more
rate-payers as may be requisite to make the number before proposed up
to nine; and such nine rate-payers shall be considered duly elected as
the council for the ensuing municipal year.
XX. In case of a vacancy or vacancies occurring during the municipal
year, the existing council shall have the power to fill up such vacancy
or vacancies by the vote of the majority of the council, providing such
vacancies do not exceed three in number.
Should the vacancies exceed three, an election of the whole number
of new members who have not been originally elected shall be called, in
the manner previously provided in respect of an election when the num-
ber proposed were less than nine.
XXI. The council shall.enter upon their office so soon after the ac-
counts of the retiring committee shall have been audited and passed at
the annual meeting in April, mentioned in Article IX; and at their first
meeting the new council shall elect a chairman and vice-chairman, who
shall bold office for one year. In their temporary absence the members
present at ang meeting of the council shall elect their chairman for such
meeting
XXII. On all questions in which the members of the council present
are equally divided in opinion, the chairman shall have a second or cast-
ing vote.
Five members of the council shall constitute a quorum for the dispatch
of business.
XXIII. The council may, from time to time, appoint out of their own
body such and so many committees, consisting of such number of per-
sons as they shall think tit, for all or any of the purposes wherein they
are empowered to act, which, in the discretion of the council, would be
better regulated and managed by means of such committees, and may
fix the quorum of such committees.
XXIV. The council may, from time to time, appoint such officers and
servants as they think necessary for carrying out these regulations,
and
fix the salaries, wages, and allowances of such officers and servants, and
may pay the same out of the municipal funds; and make rules and regu-
lations for the government of such officers and servants; and may dis-
continue or remove any of them from time to time as they shall think
fit.
XXV. The council shall administer the mụnicipal funds for the public
use and benefit at their discretion, provided they do not exceed the sum
voted at the annual meeting or any special meeting called to vote ex-
penses; and a statement sball be drawn up by them at the end of each
year for which the council has been elected, showing the nature and
JUDICIAL EXTRATERRITORIAL RIGHTS.
187
awount of the receipts and disbursements of the municipal fund for that
year; and the said statement shall be published for general information.
XXVI. No inatter or thing done, or contract entered into, by the
council, nor any matter or thing done by any member thereof, or by the
secretary, surveyor, superintendent of police, or other officer or person
whomsoerer acting under the direction of the council, shall, if the mat-
ter or thing were done, or the contract entered into bona fide, for the
purpose of executing these regulations, subject them, or any of them,
personally, to any action, liability, claim, or demand whatsoever; and
any expense, properly and with due authority incurred by the council,
member, secretary, surveyor, superintendent of police, or other officer
or person acting as last aforesaid, shall be borne and repaid out of the
rates levied under the authority of these regulations.
XXVII. If a citizen or subject of any foreign government represented
at Shanghai by an officer having judicial functious shall consider him-
self aggrieved in respect of any right or privilege or otherwise by any
of the council, the said officer, on proper representation, shall endeavor
to arrange a submission of the matter to arbitration ; but if the said
officer shall be unable to effect a submission of the matter to arbitration,
he shall, at the petition of such citizen or subject, proceed to hear the
question and to decide it conformably to an equitable consideration of
the rules.
The said officer shall sit alone, and either party may appeal from his
judgment to the minister of the complainant's government at Peking, or
in the absence of a minister, to the complainant's government, who shall
have full power to judge the same.
The decision upon the appeal shall be final.
All proceedings shall be taken in open court, and in the usual form
of the court, excepting that notices, instead of usual processes, shall be
served upon the council. Witnesses may be compelled to attend by re-
sort to the appropriate court. Notice to the chairman of the council
shall be construed as notice to the council. The council may appear by
the cliairman, or by any councillor delegated, or by counsel.
Judgment may be given against either party failing to appear, on
notice being proven, but only after an examination of those appearing.
Judgments against the council (for specific performance), in respect
to rights, shall be respected by the council, but if disregarded, o motion
judgment for damages may be entered.
Judgment for damages may be recovered on execution levied against
property, or moneys of the council in the hands of persons of the nation-
ality concerned.
Appeals must be claimed within seven days after judgment shall
have been notified to the parties, and perfected within fourteen days
after such notice.
XXVIII. A board of three Chinese delegates, resident in the settle-
ment, shall be formed for the purpose of advising and consulting with
the council on matters affecting the Chinese population, as regards tax-
ation, maintenance of order, &c., &c., in the following manner: The senior
consul shall, during the month of March of each year, officially request
the Taotae to direct the tung-sze, i. e., the representatives and headmen
of the several native communities, guilds, chambers, and clubs, to meet
and elect three Chinese delegates aforesaid. Due notice shall be given
to these delegates when such subjects are under discussion ; but their
functions shall be solely consultative. No new tax, nor new measure of
police, nor sanitary regulation affecting the native community, shall
188
JUDICIAL EXTRATERRITORIAL RIGHTS.
72
take effect until the said Chinese delegates have been consulted thereon.
They shall be invited to present written statements of their views, which
shall be entered on the minutes of the council meetings and published,
XXIX. That the words 6 renters of land,” and “rate-payers,
wherever they occur in the foregoing regulations shall, where not other-
wise indicated by the connection in which they occur, be taken to mean
electors entitled to vote, according to the terms of XVIII.
XXX. Hereafter, should any corrections be requisite in these regula-
tions, or should it be necessary to determine on further rules, or should
doubts arise as to the construction of or powers conferred thereby, the
same must be consulted upon and settled by the foreign consuls and
intendant of circuit in communication together, who shall equitably de-
cide thereon, and submit the same for confirmation to the representa-
tives of their respective countries in China, and for the sanction of the
Chinese government.
By-laws.
I. Control and management of sew- XVIII. Cleaning streets-council to
ers and drains.
cause streets to be cleansed,
II. Power to make sewers and drains.
and dust and ashes to be re-
III. Power to enlarge and alter sew-
moved from the houses.
ers and drains.
XIX. Council may compound for
IV. Penalty ou any unauthorized per-
sweeping footways.
son for making any draiu flow XX. Ruinous buildings.
into public sewers without con- XXI. Expenses of removal.
sent of council.
XXII. When owners cannot be
V. No person to build over any pub-
found.
lic sewer without consent of coin- XXIII. Projections of houses, &c., to
cil.
be removed on notice.
VI. Sewers and drains to be provided XXIV. Obstruction of streets.
with traps.
XXV. Cleaning streets.
VII. Expense of maintaining and clean- XXVI. Conveyance of offensive mat-
ing sewers and drains.
ter.
VIII. No one to build or rebuild a house XXVII. Stagnant pools.
until a covered drain be con- XXVIII. Regulation to prevent accu-
structed.
mulation of dung, &c.
IX. Council shall be surveyors of high- XXIX. Certificate of health office;
ways.
filth to be removed.
X. Management of streets and the XXX. Houses to be whitewashed and
repairs thereof, to vest in council.
purified, on certificate of ofti-
XI. Council may stop up any street
cer of health, &c.
pending construction, &c., of a
XXXI. Council may 'order nuisances
sewer.
to be abated.
XII. Penalty on making unauthorized
XXXII. Observations of scavenger.
alterations in the streets.
XXXIII. Dangerous buildings.
XIII. Council may alter situation of gas XXXIV. Licenses.
or water pipes.
XXXV. Disturbance in streets.
XIV. Water spouts to be affixed to XXXVI. Lamps.
houses or buildings.
XXXVII. Carrying arms.
XV. Penalty for not lighting deposits XXXVIII. Transient offender.
of building materials or excava- XXXIX. Penalty for disobedience of
tions.
order in council.
XVI. Penalty for continuing deposits
XL. By-laws.
of building materials or excava- XLI. Penalty to be summarily re-
tions an ureasonable time.
covered.
XVII. Dangerous places to be repaired XLII. Publication of by-laws.
or inclosed.
By-laws annexed to the land municipal regulations for the foreign quarter
of Shanghai, this day of —,
186-
I. The entire control and management of all public sewers and drains
within the limits of these regulations, and all sewers and drains in and
JUDICIAL EXTRATERRITORIAL RIGHTS.
189
under the streets, with all the works and materials thereunto belonging,
whether made at the time these regulations become valid or at any time
thereafter, and whether made at the cost of the council or otherwise,
shall vest'in and belong to the council.
II. The council shall, from time to time, cause to be made under the
streets such main and other sewers as shall be necessary for the effect-
ual draining of the town or district within the limits of the settlement,
and also all such reservoirs, sluices, engines, and other works as shall
be necessary for cleaning such sewers; and if needful, they may carry
such sewers through and across all or any of the streets, doing as little
damage as may be, and making compensation as aforesaid, to be deter-
mined by arbitration or recoverable in the manner provided by the land
regulations, for any damage done; and if for completing any of the
'aforesaid works it be found necessary to carry them into or through any
inclosure or other lands, the council may, after reasonable notice, carry
the same into or through such lands accordingly, making compensation
to the owners and occupiers thereof; and they may also cause such
sewers to communicate with and empty themselves into the river, or
they may cause the refuse from such sewers to be conveyed by a proper
channel to the most convenient site for collection and sale for agricultural
or other purposes, as may be deemed most expedient, but so that the
same shall in no case become a nuisance.
III. The council may from time to time, as they see fit, enlarge, alter,
and arch over, and otherwise improve all or any of the sewers vested in
them; and if any of such sewers at any time appear to them to have
become useless, the council, if they think fit to do so, may demolish and
discontinue such sewers: Provided, That it may be so done as not to
create a nuisance.
IV. Every person, not being employed for that purpose by the council,
who shall make any drain into any of the sewers or drains so vested in
the council, shall forfeit to the council a sum not exceeding $100; and
the council may cause such branch drain to be remade as they think fit,
and all the expense incurred thereby shall be paid by the person making
such branch drain, and shall be recoverable by the council as damages.
V. No sewer or drain shall be made, or any building be erected over
any sewer belonging to the council, without the consent of the council
first obtained in writing; and if, after the passing of the revised land
regulations, any sewer or drain be made, or any building be erected
contrary to the provisions herein contained, the council may demolish
the same, and the expenses incurred thereby shall be paid by the person
erecting such building, and shall be recoverable as damages.
VI. All sewers and drains within the limits of these regulations,
whether public or private, sball be provided by the council or other
persons to whom they severally belong, with proper traps, or other
coverings or means of ventilation, so as to prevent stench.
VII. The expense of maintaining and cleansing all sewers, not herein-
before provided for, shall be defrayed out of the rates and taxes to be
levied under Article IX of the land regulations.
VIII. It shall not be lawful to erect any house in the settlement, or
to rebuild any house in the settlement, until a drain or drains be con-
structed of such size and materials, and at such level, and with such
fall, as, upon the report of the surveyor made to the council, shall ap.
pear to be necessary and sufficient for the proper and effectual drainage
of the same and its appurtenances; such report to be made within 14
clays after notice is given to the said surveyor of the proposed erection
or rebuilding; and in default thereof, all parties shall be at liberty to
190
JUDICIAL EXTRATERRITORIAL RIGHTS.
proceed with any such erection or building, as if no such report were
required; and if a sewer of the council, or a sewer which they were en-
titled to use, be within 100 feet of any part of the site of the house to
be buit or rebuilt, the drain or drains so to be constructed shall lead
from and communicate with such sewer as the council shall direct, or if
no such means of drainage be within that distance, then the last-men-
tioned drain or drains shall communicate with and be emptied into such
covered cesspool or other place not being under any house, and not
being within such distance from any house, as the council shall direct;
and whosoever erects or rebuilds any house or constructs any drains
contrary to this by-law, sball be liable for every such offense to a pen-
alty not exceeding $250; and if at any time, upon the report of the sur-
veyor, it appear to the council that any house, whether built before or
after the passing of this by-law, is without any drain, or without such
a drain or drains communicating with a sewer as is or are sufficient for
the proper and effectual drainage of the same: and its appurtenances;
and if a sewer of the council, or a sewer which they are entitled to use,
be within 100 feet of any part of such house, they shall cause notice in
writing to be given to the owner or occupier of such house, requiring
him forth with, or within sich reasonable time as shall be specified
therein, to construct and lay down in connection with such house one
or more drain or drains, of such materials and size, at such level, and
with such fall, as upon the last-mentioned report shall appear to be nec.
essary; and if such notice be not complied with, the council may, if
they think fit, do the works mentioned or referred to therein; and the
expenses incurred by them in so doing, if not forth with paid by the
owner or occupier, shall be defrayed by the council, and by them recov-
ered from the owner of the house, in the same manner as a penalty
under these by-laws is recoverable.
IX. The council, and none others, shall be surveyors of all highways
within the limits of the aforesaid regulations, and within those limits
shall have all such power and authorities, and be subject to all such
liabilities, as any surveyors of highways are usually invested with.
X. The management of all the public streets, and the laying out and
repaving thereof on passing of the Revised Regulations, or which there-
after may become public highways, and the pavements and other mate-
rials, as well in the footways as carriage ways of such public streets, and
all buildings, materials, implements, and other things provided for the
purposes of said highways, shall belong to the council.
XI. The council may stop any street, and prevent all persons from
passing along and using the same for a reasonable time during the con-
struction, alteration, repair, or demolition of any sewer or drain in or
under such street, so long as they do not interfere with the ingress or
egress of persons on foot to or from their dwellings or tenements.
XII. Every person who willfully displaces, takes up, or makes any
alteration in the pavement; flags, or other materials of any street under
the management of the council, without their consent in writing or with-
out other lawful authority, shall be liable to a penalty not exceeding
$25; and also a further sum not exceeding $1 for every square foot of
the pavement, flags, or other materials of the street so displaced, taken
up, or altered.
XIII. For the purpose of the aforesaid regulations, if the council deem
it necessary to raise, sink, or otherwise alter the situation of any water-
pipe or gas-pipe laid in any of the streets, they may, from time to time,
by notice in writing, require the person or persons to whow any such
pipes or works belong, to cause forth with, as soon as conveniently may
JUDICIAL EXTRATERRITORIAL RIGHTS.
191
be, any such pipes or works to be raised, sunk, or otherwise altered in
position in such manner as the council direct: Provided, That such
alteration be not such as permanently to injure such works, or to pre-
vent the water or gas from flowing as freely and conveniently as before;
and the expenses attending such raising, sinking, or altering, and com-
pensation for every damage done thereby, shall be paid by the council
out of the rates and taxes levied under the regulations aforesaid.
If the person or persons to whom any such pipes or works belong do
not proceed forth with, or as soon as conveniently may be, after the re-
ceipt of such notice, to cause the same to be raised, sunk, or altered in
such manner as the council require, the council may themselves, but
then at the costs and charges of the person or persons to whom the pipes
or works belong, such costs and charges to bē recoverable in the same
way as the penalties enacted under these by-laws, cause such pipes or
works to be raised, sunk, or altered as they think fit: Prorided, That
such works be not permanently injured thereby, or the water or gas pre-
vented from flowing as freely and conveniently as before.
XIV. The occupier of every house or building in, adjoining, or near
to any street shall, within 14 days next after service of an order of the
council for that purpose, put up and keep in good condition a shoot or
trough of the whole length of such house or building, and shall connect
the same either with a similar shoot on the adjoining house, or with a pipe
or trunk to be fixed to the front or side of such building from the roof
to the ground, to carry the water from the roof thereof in such manner
that the water from such house or any portico or projection therefrom
shall not fall upon the persons passing along the street, or flow over the
footpath; and in default of compliance with any such order within the
period aforesaid, such occupier shall be liable to pay not exceeding $10
for every day that he shall so make default.
XV. When building materials or other things are laid, or any hole
made, in any of the streets, whether the same be done by order of the
council or not, the person or persons causing such materials or other
things to be so laid, or such hole to be made, shall, at his own expense,
cause a sufficient light to be fixed in a proper place upon or near the same,
and continue such light every night from sun-setting to sun-rising,
while such materials or hole remain; and such person shall, at his own
expense, cause such materials or other things, and such hole, to be suf-
ficiently fenced and inclosed, until such materials or other things are
removed, or the hole filled up or otherwise made secure; and every such
person who fails to light, fence, or inclose such materials or other thing
or such hole shall, for every such offense, be liable to a penalty not ex-
ceeding $25, and a further penalty not exceeding $10 for every day
while such default is contiuued.
XVI. In no case shall any such building materials or other things or
such hole be allowed to remain for an unnecessary time, under a pen-
alty not exceeding $25 to be paid for every such: offense, by the person
who causes such materials or other things to be laid, or such hole to be
made; and a further penalty not exceeding $10 for every day during
which such offense is continued after the conviction for such offence;
and in any such case the proof that the time has not exceeded the nec-
essary time, shall be upon the person so causing such materials or other
things to be laid or causing such bole to be made.
XVII. If any building or hole or other place near any street be for want
of sufficient repair, protection, or inclosure, dangerous to the passengers
along such street, the council 'shall cause the same to be repaired, pro.
tected, or inclosed so as to prerent danger therefrom, and the expenses
192
JUDICIAL EXTRATERRITORIAL RIGHTS.
of such repair, protection, or inclosure shall be repaid to the council by
the owner of the premises só repaired, protected, or inclosed, and shall
be recoverable from him as damages.
XVIII. The council shall cause all the streets, together with the foot-
pavements, from time to time, to be properly swept and cleansed, and
all dust and filth of every sort found thereon to be collected and re-
moved ; and shall cause all the dust, ashes, and rubbish to be carried
away from the houses and tenements of the inhabitants of the town and
district within the limits of these regulations at convenient hours and times;
and shall cause the privies and cesspools within the said town or dis.
trict to be from time to time emptied and cleansed in a sufficient and
proper manner: Provided, always, That the occupier of any house or
tenement within the limits of these regulations may keep and remove any
such soil, ashes, or rubbish as shall be kept for manure, so that the same
be not a nuisance to the inhabitants residing near such premises; and
that the same be removed at such times and in such manner as shall be
approved of by the council.
XIX. The council may compound for such time as they think fit with
any person liable to sweep or clean any footway, under the provisions
of these regulations, for sweeping and cleaning the same in the manner
directed by these regulations.
XX. If any building or wall be deemed by the surveyor of the coun-
cil to be in a ruinous state, and dangerous to passengers or to the occu-
piers of the neighborhood, such surveyor shall immediately make com-
plaint thereof to the consul of the nation of the person or persons to
whom the building belongs, and it shall be lawful for such consul to
order the owner, or in his default the occupier (if any) of such building,
wall, or other thing, to take down, rebuild, repair, or otherwise secure
to the satisfaction of such surveyor, within a time to be fixed by such
consul, and in case the same be not taken down, repaired, rebuilt, or
otherwise secured in such manner as shall be requisite, and all the es-
penses of putting up every such fence, and of taking down, repairing,
rebuilding, or securing such building, wall or other thing, shall be paid
by the owner or owners thereof.
XXI. If such owner or owners can be found within the said limits,
and if, on demand of the expenses aforesaid, he neglect or refuse to pay
the same, then such expenses may be levied by distress, and the con-
sul, on the application of the council, may issue his warrant accord-
ingly.
XXII. If such owner cannot be found within the said limits, or suffi-
cient distress of his goods and chattles within the said limits cannot be
made, the council, after giving 28 days' notice of their intention to do
so by posting a printed or written notice in a conspicious place on such
building, or on the land whereon such building stood, by giving notice
in the local newspapers under the head of municipal notification, may
take such building or land, sell the same by public auction, and from
and out of the proceeds of such sale may reimburse themselves for the
outlay incurred, or the council may sell the materials thereof or so much
of the same as shall be pulled down, and apply the proceeds of such
sale in payment of the expenses incurred in respect of such honse or
building, and the council shall restore any overplus arising from such
sale to the owner of such' house or building on demand; nevertheless,
the council, although they sell such materials for the purposes aforesaid,
shall have the same remedies for compelling the payment of so much of
the said expenses as may remain due after the application of the pro-
JUDICIAL EXTRATERRITORIAL RIGHTS.
193
ceeds of such sale as are hereinbefore given to them for compelling the
payment of the whole of the said expenses.
XXIII. The council may give notice. to the occupier of any house or
building to remove or alter any porch, shed, projecting window, step,
cellar, cellar-door or window, sign, sigupost, sign-iron, show-board,
window-shutter, wall, gate or fence, or any other obstruction or projec-
tion erected or placed against or in front of any house or building with-
in the limits of the settlement, and which is an obstruction to the safe
and convenient passage along any street, and such occupier shall, with-
in 14 days after the service of such notice upon him, remove such ob-
struction or alter the same in such manner as shall have been directed
by the council, and in default thereof shall be liable to a penalty not
exceeding $10, and the council in such case may remove such obstruc-
tion or projection, and the expense of such removal shall be paid by the
occupier so making default, and shall be recoverable as damages: Pro-
vided always, That in the case in which such obstructions or projections
were made or put up by the owner, the occupier shall be entitled to de-
duct the expense of removing the same from the rent payable by him
to the owner of the house or building.
XXIV. No person shall obstruct the public roads or foot-paths with
any kind of goods or building materials under a penalty of $10 for every
24 hours of continued obstruction, and after the first 24 hours' notice of
removal shall have been given to the owner of the same or the person
using, employing, or having control over the same, or in the absence
of any such person, or inability on the part of the agents of the council,
shall remove the same and retain the same until the expense of such
removal shall have been repaid, or may recover the expense of such re-
moval or damages, and may after such recovery sell the same, holding
the balance, if any, after payment of penalties, expenses and costs, to
the use of the person entitled to the same. And it shall be competent
to the council to charge for holdings, scaffoldings placed round buildings
in course of erection, interfering with the public highways, on a scale to
be hereafter fixed at a meeting of the electors.
XXV. Alloccupiers of land and houses shall cause the foot-pavements
in front of their houses to be swept and cleansed whenever occasion
shall require, and after the receipt of notice served upon them. And
they shall also cause to be swept and cleaned all gutters, surface drains
in the front, side or rear of their premises, and remove all accumula-
tions of soil, ashes or rubbish, and every such occupier making default
herein shall for every offense be liable to a penalty of $5. And for the
purpose aforesaid, when any house shall be let in apartments, the person
letting the same shall be deemed the occupier.
XXVI. The council may, from time to time, fix the hours within which
only it shall be lawful to empty privies, or remove offensive matter, with-
in the limits of the settlement; and when the council have fixed such
hours, and given public notice thereof, every person who within the said
limits empties or begins to empty any privy, or removes along any
thoroughfare within the said limits any offensive matter, at any time
except within the hours so fixed; and also every person who at any time,
whether such hours have been fixed by the council or not, use for any
such purpose any utensil or pail, or any cart or carriage not having a
covering proper for preventing the escape of the contents of such cart,
or of the stench thereof, or who willfully slops or spills any such offen-
sive matter in the removal thereof, or who does not carefully sweep and
clean every place in which any such offensive matter has been placed,
or unavoidably slopped or spilled, shall be liable to a penalty not ex-
'S. Mis. 89– -13
194
JUDICIAL EXTRATERRITORIAL RIGHTS.
ceeding $10, and in default of the apprehension of the actual offender,
the driver, or person having the care of the cart or carriage employed
for any such purpose, shall be deemed to be the offender.
XXVII. No person shall suffer any offensive, waste, or stagnant water
to remain in any cellar, or other place within any house belonging to or
occupied by him, so as to be a nuisance, within or upon any waste land
belonging to or in his occupation within the boundaries of the settle-
ment, so as to be a nuisance; and every person who shall suffer any such
water to remain for 48 hours after receiving notice of not less than 48
hours froin the council to remove the same, and every person who allows
the contents of any privy or cesspool to overflow or soak therefrom, to
the annoyance of the occupiers of any adjoining property, or who keeps
any pig or pigs within any dwelling-house within the said limits so as
to be a nuisance, shall for every such offense be liable to a penalty not
exceeding $10, and to a further penalty not exceeding $2 for every day
during which such nuisance continues; and the council inay drain and
cleanse out any stagnant pools, ditches, or ponds of water within the
said limits so as to be a nuisance, and abate any such nuisance, as afore-
said, and for that purpose may enter, by their officers and workmen,
into and upon any building or land within the said limits at all reasona-
ble times, and to do all necessary acts for any of the purposes aforesaid,
and the expenses incurred thereby shall be paid by the person commit-
ting such offense, or occupying the building or land where such annoy-
ance proceeds; and if there be no occupier, by the owner of such build-
ing or land, and shall be recoverable as damages.
XXVIII. If the dung or soil of any stable, cow-house or pig-sty, or
other collection of refuse matter, elsewhere than in any farm-yard, be
at any time allowed to accumulate within the limits of the settlement
for more than seven days, or for more than two days after a quantity
exceeding one ton has been collected in any place not allowed by the
council, such dung, soil, or refuse, if not removed within 24 hours after
notice from any officer of the council for that purpose, shall become the
property of the council, and they, or any person with whom they have
at the time any subsisting contract for the removal of refuse, may sell
and dispose of the same, and the money thence arising shall be applied
towards the purposes of the council, or they may recover the expense
of such removal from the occupier of the building or land as damages.
XXIX. If any officer of health, or if for the time being there be no
officer of health, any two surgeons or physicians, or one surgeon and
one physician, residing within the limits of the settlement, certify under
his or their hands to the council that any accumulation of dung, soil or
filth, or other noxious or offensive matter within the said limits, ought
to be removed as being injurious to the health of the inhabitants, the
secretary of the council shall forthwith give notice to the owner or re-
puted owners of such dung, soil or filth, or to the occupier of the land
where the same are, to remove the same within 24 hours after such
notice; and in case of failure to comply with such potice, the said dung,
soil or filth, shall thereupon' become vested in the council, and they, or
any person with whom they have at that time contracted for the removal
of all such refuse, may sell and dispose of the same, and the money
thence arising shall be applied towards the purposes of the council, and
they may recover the expense of such removal from such occupier or
owner in the same manner as damages.
XXX. If at any time the officer of health, or if for the time being
there be no officer of health, any two surgeons or physicians, or one
surgeon and one physician, residing within the said limits, certify under
JUDICIAL EXTRATERRITORIAL RIGHTS.
195
his or their hands to the council that any house, or part of any hole or
building within the limits of the settlement, is in such a filthy or un-
wholesome condition that the health of the inmates or of the neighbors
is thereby affected or endangered, or that the whitewashing, cleansing or
purifying of any house or building, or any part thereof, would tend to
prevent or check infectious or contagious disease therein, or that any
drain, privy or cesspool, is in such a defective state that the health of
the neighbors is thereby affected or endangered, the council shall order
the occupier of such house or part thereof to whitewash, cleanse and
purify the same, and the owner of such' (train, privy or cesspool to
amend the condition thereof in such Inanner and within such time as
the council deem reasonable; and if such occupier or owner do not comply
with such order he shall be liable to a penalty not exceeding $10 for
every day's neglect thereof; and in such case the council may cause such
house or any part thereof to be whitewashed, cleansed and purified, or
the condition of such drain, privy.or cesspool, to be amended, and may
recover the expense thereof from such occupier or owner in the same
manner as damages.
XXXI. If any candle house, melting-house, melting-place, or soap-
house, or any slaughter-house, or any building or place for boiling offal,
or blood, or for boiling or crushing bones, or any pig-sty, necessary-house,
dung-hill, manure heap, or any manufactory, building, or place of business
within the limits of the settlement, be at any time certified to the council
by the inspector of nuisances, or officer of health; or if for the time being
there be no inspector of nuisances or officer of health, by any two sur-
geons and physicians, or one surgeon and one physician, to be a nuisance
or injurious to the health of the inhabitants, the council shall direct
complaint to be made before the consul of the nation of the person by
or on whose behalf the work complained of is carried on, and such consul
shall inquire into such complaint, and may, by an order in writing under
hiş hand, order such person to discontinue or remedy the nuisance with-
in such time as to him shall appear expedient: Provided always, That
it appear to such consul that in carrying on any business complained of,
the best means then known to be available for mitigating the nuisance,
of the injurious effects of such business, have not been adopted, they
may suspend their final determination, upon condition that the person
so complained against shall undertake to adopt within a reasonable
time such means as the said consul shall judge to be practicable, and
order to be carried into effect for mitigating or preventing the injurious
effects of such business.
XXXII. Every occupier of any building or land within the said limits,
and every other person who refuses to permit the said scavengers to
remove such dirt, ashes, or rubbish, as by these by-laws they are au-
thorized to do, or who obstruct the said scavengers in the performance
of their duty, shall, for every such offense, be liable to a penalty not,
exceeding $25.
XXXIII. No straw shed, bamboo houses, or buildings of like inflam-
mable material, shall be erected within the settlement; nor shall con-
traband goods or merchandise likely to endanger life, or cause injury to
individuals, such as gunpowder, saltpeter, sulphur, large quantity of
spirits in bulk, petroleum, naphtha, and other explosive gases or liquids,
stand on the premises of any individual, under the penalty of $250 for
the first offense, and of $500, with confiscation of the goods themselves
to the use of the council, for each succeeding offense. On articles of
this nature being brought into the settlement immediate notice must be
given by the importer, consignee, or owner thereof to the secretary of
196
JUDICIAL EXTRATERRITORIAL RIGHT'S.
i
.
i
the council, whose duty it will be to assign the locality or place within
which such goods may be safely stored, and every refusal to obey, or
disobedience of the order of the secretary in this behalf, shall be visited
with a penalty of $250, and a penalty of $100 for every 24 hours of con-
tinued disobedience. And such penalty, together with the preceding
penalty, and all other fines and penalties declared by these by-laws,
shall be recoverable in a summary manner before the consul or court
having jurisdiction over the offender or defaulter.
XXXIV. No foreigner or Chinese shall vend spirits or liquors of any
kind or description, or open a house of public entertainment, music ball,
theater, circus, or dancing saloon within the limits of the settlement,
without a license first obtained from the council, and in the case of
foreigners countersigned by the consul of the nationality to which the
applicant belongs, and upon good and sufficient security given for the
maintenance of order in such establishment, and in respect of such
licenses the council may charge on such scale as may be authorized at
the lawful meetings held under the regulations:
For every wine and spirit shop, annually.
For every beer shop, annually.
For a house of entertainment, hotel, or tavern, annually.
Music hall, for every night open.
Theater, for every night open.
Circus, for every night open.
Dancing saloon, for every night open.
And any person opening or keeping, or holding any such shop, store,
house of entertainment, music hall, theater, circus, or dancing ball
,
without having first obtained the license of the council, shall, over and
above the cost of the license aud summons, be liable to a fine not ex-
ceeding $50.
XXXV. All persons firing guns or pistols, causelessly creating a
noise or disturbance, and all persons guilty of furious or improper riding
or driving, or the leading of horses up and down any thoroughfare for
exercise, or who shall commit any act which may legitimately come
within the meaning of the term nuisance, shall be liable to a penalty of
$10.
XXXVI. All persons driving carriages or carts of any description be-
tween one hour after sunset and one hour before sunrise must affix
lighted lamps to their vehicles, under penalty of five dollars for each
omission.
XXXVII. No person within the limits of the settlements, except con-
sular officers and the officers of the council duly authorized, and military
and naval officers, or volunteers, or soldiers, or soldiers of any govern-
ment force in'uniform or on duty, shall under any pretense carry offen-
sive or defensive arms, such as guns, pistols, swords, daggers, loaded
sticks, slung-shots, knives, or any weapon of like character, under a
penalty not exceeding $10, or one week's imprisonment, with or with-
out hard labor: Provided, That nothing in this by-law be construed to
extend to the carrying of fowling-pieces for the purpose of shooting
game.
XXXVIII. It shall be lawful for any officer or agent of the council,
and all persons called by him to his assistance, to seize and detain any
person who shall have committed any offense against the provisions of
these by-laws, and whose name and residence shall be unknown to such
officer or agent, and convey him, with all convenient dispatch, before
his proper consul, without any warrant or other authority than these
by-laws.
JUDICIAL EXTRATERRITORIAL RIGHTS.
197
XXXIX. If any such nuisance, or the cause of any such injurious
effects as aforesaid, be not discontinued or remedied within such time as
shall be ordered by the said consul, the person by or on whose behalf
the business causing such nuisance is carried on shall be liable to a
penalty not exceeding $25 for every day during which such' nuisance
shall be continued or unremedied after the expiration of such time as
aforesaid.
XL: Nothing in these by-lays contained shall be construed to render
lawful any act or omission on the part of any person which is or would
be deemed to be a nuisance at common law, from prosecution or action
in respect thereof, according to the forms of proceeding at common law,
nor from the consequences upon being convicted thereof.
XLI. Every penalty or forfeiture imposed by these by-laws, made in
pursuance thereof, the recovery of which is not otherwise provided for,
may be recovered by summary proceeding before the proper consular
representative, and it shall be lawful for such consular representative,
upon conviction, to adjudge the offender to pay the penalty or forfeiture
incurred, as well as such costs attending the conviction, as such consu-
lar representative shall think fit.
XLII. These by-laws shall be printed, and the secretary of the council
shall deliver a printed copy thereof to every rate-payer applying for the
same, without charge; and a copy thereof shall be hung up in the front
or in some conspicuous part of the principal office of the council.
APPENDIX XI.
Mr. Fish to Mr. Bingham.
DEPARTMENT OF STATE,
Washington, January 20, 1876.
SIR: Your dispatch of the 18th of November last, No. 291, in relation
to the right of the municipal council of Nagasaki to maintain actions in
the consular court of the United States against American citizens for
liabilities accruing on account of non-observance of municipal ordi-
nances by the latter, has been received.
It appears from your dispatch and the inclosures accompanying it
that the council referred to is a body composed of foreign consuls and
prominent foreigners of different nationalities, resident in what is known
as the “foreign quarter" in Nagasaki, that it owes its existence and
creation to the voluntary action of the foreign population; or at least to
that portion of the foreign population who come under the denomination
of "land-renters," and that the regulations or ordinances of this muni-
cipal council are confined within the legislative limits of the preserva-
tion of the peace, morals, and good order of the community.
These objects are clearly within the scope of the legislative functions
ordinarily pertaining to municipal corporations, and the licensing of
public houses or places of public entertainment and resort is a very com-
mon exercise of the power of such corporations.
You refer to your dispatch No. 228, of the 20th of May, 1875, in which
you forward a copy of the Nagasaki regulations. Upon examination
it is found that the correspondence of which that dispatch forms a part
related to the power of United States consuls in China and Japan to
make rules and regulations which should have the force of law over cit-
198
JUDICIAL EXTRATERRITORIAL RIGHTS.
izens of the United States resident in those countries, and the observ.
ance of which might be enforced in the consular courts. In your No.
158, of the 4th of December, 1874, you inform the Department of the
then recent receipt by you of a communication from Mr. Van Buren,
consul-general, asking your consent to the enactment of such regula-
tions of the consular board at Yokohama, and at the same time state
that you did not give your consent, for the reason that in your opinion
such powers of legislation were not conferred upon either the consuls or
ininisters of this government under the laws of the United States, and
that the exercise of such a power would be beyond the scope of the
legitimate functions of these officers. The opinion thus expressed by
you met with the approval of the Department, and was found to be in
accord with its previously expressed views on that question, and you
were so instructed in my No. 115, of the 7th of January, 1875. In the
same instruction you were requested to inform the Department what
powers,
if any, were claimed by the consular board, as such, to make
such regulations, and whether the power spoken of was claimed by the
several consuls to have been conferred by their separate governments,
and what authority in regard to such questions had been conferred by
the other treaty powers upon their ministers in Japan.
Your dispatch No. 228 was in reply to that instruction, and you for-
ward with it a copy of regulations adopted by a convention of foreign
consuls, held at Yedo, in October, 1867, a copy of rules and regulations
adopted by the land-renters at Nagasaki, in September, 1860, and also
a copy of a communication received by Mr. Van Buren, from Sir Harry
S. Parkes, Her Britannic Majesty's minister, setting forth the grounds
upon wbich the consuls of Great Britain claimed the right of exercising
the quasi legislative powers referred to. Upon the perusal of your re-
port no grounds were perceived for departing from the views which had
been expressed by you and approved by the Department, inasmuch as
the act of Congress regulating the exercise of the extraterritorial judi-
cial powers accorded in the treaties with Japan and China provides that
the proceedings shall be governed by the laws of the United States, the
cominon law, and the law of equity and admiralty, and when these failed
to afford an adequate remedy, then by such regulations as should be
made and promulgated by the ninisters of the United States resident
in those countries.
These provisions of the statute of the United States are not under-
stood to confer upon the minister any power of general legislation (as
commonly understood), but simply the power of supplying decrees and
regulations to supply any defects in the mode of exercising the jurisdic-
tion which the statutes and treaties gave to the consular courts. With
us at home, our courts cannot legislate, cannot make laws, but may make
regulations controlling the practice and the mode of their administering
and enforcing the laws. When the statutes of the United States, the
common law, and the law of equity and admiralty fail to furnish suffi-
cient remedies for the exercise of the jurisdiction which the statute con-
fers on the consular courts in Japan, China, &c., the minister may sup-
ply the deficiency. Such is understood to be the extent of legislative
power, if even this can properly be called “legislative power," which is
given to either minister or consul by the statute. No power is given to
the minister to make a regulation which will establish or impair the
Tights existing between parties to create or impose new obligations on
citizens. He is confined to making regulations which will enable the
established courts to administer justice between parties according to
existing laws, and to punish those who offend against the laws.
JUDICIAL EXTRATERRITORIAL RIGHTS.
199
The question now presented, however, is 'conceived to be different.
It is not a question of general legislation, but one of local corporate
municipal enactment of ordinances or regulations for the preservation
of the peace, morals, and good order of the town or municipal commu-
nity, and confined to such objects as the wants and necessities of that
particular community may demand; it is the exercise of a power known
to exist in the municipal authorities of the cities and towns throughout
the United States, resting, it is true, in the latter case, upon municipal
charters granted by the supreme legislative power of the State. But
instances are not wanting in the history of this government in which
similar powers have been exercised by inchoate communities suddenly
formed within the jurisdiction of the United States, and who, for the
time being, finding themselves situated outside of any organized State
or Territory, have been led by the dictates of prudence and necessity
to form themselves into a voluntary political organization, frame codes
of laws for the preservation of order and good government and the pro-
tection of the lives and property of the individuals composing such com-
munities, and to establish tribunals for the administration and enforce-
ment of such laws; and the laws enacted, administered, and executed
under such conditions have, so far as is now known, been respected and
sanctioned by both the executive and judicial branches of the Govern-
ment of the United States, as it is believed they have been by the judi-
cial tribunals of the several States of the Union. .
If, in the case of the residents of what is known as the “foreign
quarter” of Nagasaki, the Government of Japan, in its concession of
the territory for that purpose, conferred upon the foreigners residing
within such territory the right of such local municipal legislation, or if,
in the absence of any direct grant, that government offered no objection
to such local arrangement, and cast upon the inhabitants the duty of
providing for the general police of the “quarter," such as lighting, pav-
ing, sanitary arrangements, and the preservation of the public peace
and good order, it would seein to follow that regulations and ordinances
enacted and promulgated by a council selected by the people in such
manner as they had mutually agreed upon, should be accepted as the
municipal law of the community, have the force and effect of law, and
that their observance might be enforced by proper proceedings in the
consular courts, subject to the ordinary conditions governing the juris-
diction of these tribunals; and if the correctness of this proposition is
admitted, there cannot, it is believed, be any doubt of the right of the
municipal council to maintain an action in the consular court for the
recovery of a penalty incurred by a failure to pay a public-house license
imposed by one of these regulations. As the Department is without
full information on this point, it is desired that you will, with as little
delay as convenient, transmit such information as you are now in pos-
session of, or may be able to obtain, as to the precise nature and extent
of the powers granted or conceded by the Japanese Government to the
residents of the "foreign quarter” at Nagasaki.
But even in the absence of any such express grant from the authori-
ties of Japan, I am unable to concur in the opinion expressed by you
that the regulations or ordinances of the municipal council should not
be recognized as binding upon citizens of the United States resident in
that community: American citizens, in common with the citizens and
subjects of other foreign powers composing the population, enjoy all the
rights and privileges pertaining to such residence or domicile, and they
share in the common protection afforded to persons and property in the
200
JUDICIAL EXTRATERRITORIAL RIGHTS.
advantages and conveniences resulting from such regulations as provide
for the lighting, paving, cleansing, and other sanitary measures for the
general welfare of the municipality. They are there voluntarily, it is to
be presumed, for the advancement of their own interest; while they
share the benefits of a regulated police, they should not be free from
the charges of its support, or from its control.
The police supervision of places of public entertainment, or of public
amusement, is among the essentials of a well-regulated, orderly commu-
nity, and the income derived from licenses for keeping houses of public
entertainment constitutes, it may be supposed, a not unimportant part
of the municipal revenue upon which the council must rely to meet the
expenses incident to such arrangements. The granting of such licenses
is within the scope of the necessary power incident to municipal corpo-
rations, and the attempt to exercise the power itself would prove futile
if the correlative authority to enforce its observance by a resort to ordi-
nary legal remedies is denied to the municipal council. A refusal of
the consular court to entertain jurisdiction in a suit for the recovery of
the license-fee would partake of the nature of a decision before hearing.
I am not aware of any reason why a citizen of the United States, resi-
dent in Japan, may not be brought into court at the suit of any person
or set of persons who think they have a valid claim against him. The
statutes of the United States do not exclude any parties from becoming
plaintiff in these courts against a citizen of the United States found
within their jurisdiction. He may there plead against the competence
of the parties to sue him, or present such other defense as he may think
proper against their right of recovery. In the case referred to it is con-
ceived that he might even raise the question of the validity of the regu-
lations under which the license-fee is demanded; but it is not perceived
that the court should exclude the plaintiff and deny its process against
one amenable to its jurisdiction on the presupposition that the rigbt,
which the plaintiff desires to establish, is unfounded.
Mr. Smith is an American citizen, resident in Japan. He can be held
answerable only in the extraterritorial judicial tribunals of his own
country, established in Japan under treaty provisions. It is thus seen
that the refusal of the United States consular court to entertain juris-
diction of the cause preferred by the municipal council against Mr.
Smith, in effect leaves the complainant in that case without remedy,
and amounts to a practical denial of justice.
In view, however, of the imperfect information at present before the
Department on the question of the source and origin of the powers
claimed by the municipal council, it is not proposed to give you deti-
nite and final instructions in relation to the future course to be pursued
until such additional information as you may be able to obtain in regard
to that question shall have been imparted.
I am, &c.,
HAMILTON FISH.
JUDICIAL EXTRATERRITORIAL RIGHTS.
201
APPENDIX XII.
ÇONVENTION RELATING TO THE GOVERNMENT OF APIA.
#
[Sept. 2, 1879.]
Her Majesty the Queen of the United Kingdom of Great Britain and
Ireland and the King and Government (Malo) of Samoa being desirous
to make better provision for the good government of the town and dis-
trict of Apia, and the preservation of peace and good order therein, as
well as for the maintenance of its neutrality should internal disturb-
ances unhappily take place in the Samoan State, have determined to
conclude a convention for that purpose, and have named as their pleni-
potentiaries
Her Majesty the Queen of the United Kingdom of Great Britain and
Ireland, &c.; the Honorable Sir Arthur Hamilton Gordon, Knight
Grand Cross of the Most Distinguished Order of St. Michael and St.
George; Her Majesty's High Commissioner and Consul General for the
Western Pacific, Governor of Fiji; and Alfred Perceval Maudslay, esq.,
one of Her Britannic Majesty's Deputy Commissioners for the Western
Pacific; and the King and Government (Malo) of Samoa, the High
Chief Malietoa Laupepe, and the High Chief Saga:
Who, having met and conferred with the representatives at Apia of
other nations having entered into treaty relations with Samoa, that is to
say, Corvetten-Capitain F. Mensing, Imperial German Navy, command-
ing His Imperial German Majesty's gun vessel Albatross; Theodor
Weber, esq., Imperial German Consul for Samoa and Tonga; Captain
Ralph Chandler, United States Navy, commanding the United States
steamship Lackawanna, and Thomas M. Dawson, esq., Consul of the
United States of America at Apia, have, in conjunction with them,
agreed upon and concluded the following articles :
ARTICLE I.
The space comprised within the following limits, that is to say, com-
mencing at Vailoa, thence along the coast to the mouth of the Fuluasu
River, thence up the course of the Fuluasu River to the point at which
the Alaafalava road crosses such river, thence along the said road to the
point where it reaches the river Vaisigo, and thence in a straight line
to the point of commencement at Vailoa, shall constitute and be known
as the town and district of Apia. The waters of the harbor of Apia are
also comprehended within the district.
ARTICLE II.
Such town and district shall be placed under the government of a
municipal board consisting of those foreign consuls resident in Apia,
whose nations have entered into treaty relations with Samoa. Repre-
sentatives of every such nation having a consul at Samoa shall at a
future period be added to the said board, and shall be chosen in such
manner and exercise such functions as may be provided by regulations
to be hereafter agreed upon, and published by the said board.
202
JUDICIAL EXTRATERRITORIAL RIGHTS.
ARTICLE III.
is
+
The municipal board shall have power to make and enforce regulations
and by-laws with regard to police and good order, public works, sani-
tary regulations, the issue of licenses, the imposition of harbor regula-
tions, the prevention of the sale and supply of spirituous liquors to
Samoans and other islanders of the Pacific Ocean, and other similar
matters within the said district, and such regulations shall be binding
upon all persons within the said district, and may be enforced by penal-
ties not exceeding two hundred dollars fine, or imprisonment with hard
labor for a period not exceeding six months, or both fine and imprison-
ment not exceeding the before-mentioned penalties.
ARTICLE IV.
The municipal board of Apia may, for the purpose of defraying ex-
penses incurred under the above articles, levy rates upon the occupiers
of houses or lands within the district of Apia, not exceeding five per
cent. annually on the annual assessed value of such premises, as calcu-
lated on the presumed rental valuation thereof, or one per cent. annually
on the real value of such property.
ARTICLE V.
All offenses against the regulations of the municipal board, by whom-
soever committed, shall be tried by a magistrate to be appointed by the
board.
ARTICLE VI.
If a subject or citizen of any of the contracting parties in Apia be
charged with an offense against the laws of his own country, he shall
be tried according to the jurisdiction provided therefor by the legislation
of the nation to which he belongs, or according to the stipulations of
the treaty concluded between his nation and Samoa.
ARTICLE VII.
Every Samoan subject charged with a criminal offense within the
limits of the district of Apia, other than an offense against the muni.
cipal regulations, shall be liable to trial by the magistrate appointed
under the provisions of Article V in conjunction with a Samoan magis-
trate.
ARTICLE VIII.
The foregoing articles shall in no way prejudice the territorial integ-
rity of Samoa, and the Samoan flag shall be hoisted at such place of
meetiug of the municipal board as may be permanently adopted.
ARTICLE IX.
In case of civil war, the town and district of Apia, and the adjacent
districts comprised between the boundaries of the town and district of
Apia and Letogo, Tiapepe Point, and Sinsega, shall be considered as
JUDICIAL EXTRATERRITORIAL RIGHTS.
203
neutral territory, and the municipal board may frame and issue such
regulations as may be considered necessary for the support and main-
tenance of such neutrality.
ARTICLE X.
The present convention shall be revised at the end of four years from
its date, and if the internal state of Samoa at that time will happily ad-
mit thereof, without prejudice to the interests of foreign residents in
Samoa, the poweis conferred by the present convention upon the muni-
cipal board of Apia shall cease and determine, and the district again
pass under the control and authority of the Samoan Government, or
such other authority as may be agreed upon between the Samoan Gov-
ernment and the high contracting parties.
ARTICLE XI.
The representatives of the Imperial German Government, in virtue of
the powers accorded to them by the eighth article of the treaty concluded
between His Imperial Majesty the German Emperor and the Government
of Samoa, on the twenty-fourth day of January last past, accede and
agree to the present convention on behalf of the Imperial German Gov-
ernment, subject to the conditions of the said article.
ARTICLE XII.
The representatives of the United States Government provisionally
accede and assent to the present convention on behalf of the Govern-
ment of the United States, subject to the approval of that government.
ARTICLE XIII.
The present convention shall be ratified, and the ratification exchanged
at Apia within one year from the date thereof.
In witness whereof we have signed the same and affixed thereto our
seals.
Done at Apia this second day of September, in the year of our Lord
one thousand eight hundred and seventy-nine.
ARTHUR GORDON.
ALFRED P. MAUDSLAY.
MALIETOA LAUPEPA.
SAGA O. AUAUNA.
RALPH CHANDLER,
Captain U.S. Navy, Commanding U.S. Ship Lackawanna.
THOMAS M. DAWSON.
F. MENSING,
Corvetten-Capitain.
T. WEBER.
204
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX XIII.
PROVISIONS IN TREATIES AND CONVENTIONS CONFERRING RIGHTS OF
EXTRATERRITORIALITY UPON THE UNITED STATES.
1.—ALGIERS.
The treaties with Algiers of September 5, 1795, June 30, 1815, and
December 22, 1816, are abrogated by the annexation of that country to
France. In substance they made the consul the court for civil suits
between Americans; empowered him to act as part of a mixed court in
civil suits between Americans, and the citizens or subjects of other
powers; and provided that Americans were to answer for criminal
offenses in the courts of the country; the consul assisting.
II.-BORNÉO.
Treaty of June 23, 1850.
ARTICLE IX.
His highness the Sultan of Borneo agrees that in all cases where a
citizen of the United States shall be accused of any crime committed
in any part of his highness's dominions, the person so accused shall be
exclusively tried and adjudged by the American consul, or other officer
duly appointed for that purpose, and in all cases where disputes or dif-
ferences may arise between American citizens, or between American
citizens and the subjects of his highness, or between American citizens
and the citizens or subjects of any other foreign power in the dominions
of the Sultan of Borneo, the American consul, or other duly appointed
officer, shall have power to hear and decide the same, without any in-
terference, molestation, or hinderance on the part of any authority of
Borneo, either before, during, or after the litigation.
III.-CHINA,
Treaty of July 3, 1844.
ARTICLE XV
The Chinese Government will not hold itself responsible for any debts
which may happen to be due from subjects of China to the citizens of
the United States, or for frauds committed by them; but citizens of the
United States may seek redress in law; and on suitable representation
being made to the Chinese local authorities through the consul, they
will cause due examination in the premises, and take all proper steps to
compel satisfaction. But in case the debtor be dead, or without pro-
perty, or have absconded, the creditor cannot be indemnified according
to the old system of the cohong, so called. And if citizens of the United
States be indebted to subjects of China, the latter may seek redress in
the same way through the consul, but without any responsibility for the
debt on the part of the United States.
JUDICIAL EXTRATERRITORIAL RIGHTS.
205
ARTICLE XXI.
Subjects of China who may be guilty of any criminal act toward
citizens of the United States shall be arrested and punished by the
Chinese authorities according to the laws of China; and citizens of the
United States who may commit any crime in China shall be subject to
be tried and punished only by the consul, or other public functionary of
the United States, thereto authorized, according to the laws of the United
States. And in order to the prevention of all controversy and disaffec-
tion, justice shall be equitably and impartially administered on both
sides.
ARTICLE XXIV.
If citizens of the United States have special occasion to address any
communication to the Chinese · local officers of government, they shall
submit the same to their consul, or other officer, to determine if the lan-
guage be proper and respectful, and the matter just and right; in which
event he shall transmit the same to the appropriate authorities for their
consideration and action in the premises. In like manner, if subjects of
China bave special occasion to address the consul of the United States,
they shall submit the communication to the local authorities of their own
government, to determine if the language be respectful and proper, and
the matter just and right; in which case the said authorities will trans-
mit the same to the consul, or other officer, for his consideration and ac-
tion in the premises. And if controversies arise between citizens of the
United States and subjects of China, which cannot be amicably settled
otherwise, the same shall be examined and decided conformably to justice
and equity by the public officers of the two nations acting in conjunc-
tion.
ARTICLE XXV.
All questions in regard to rights, whether of property or person, aris-
ing between citizens of the United States in China, sball be subject to
the jurisdiction, and regulated by the authorities of their own govern-
ment. And all controversies occurring in China between citizens of the
United States and the subjects of any other government shall be regu-
lated by the treaties existing between the United States and such gov-
ernments, respectively, without interference on the part of China.
Treaty of June 18, 1858.
i
ARTICLE XI.
All citizens of the United States of America in China, peaceably at-
tending to their affairs, being placed on a common footing
of amity and
good-will with the subjects of China, shall receive and enjoy for them-
selves and everything appertaining to them, the protection of the local au-
thorities of government, who shall defend them from all insult or injury
of any sort. If their dwellings or property be threatened or attacked by
mobs, incendiaries, or other violent or lawless persons, the local officers,
on requisition of the consul, shall immediately dispatch a military force
to disperse the rioters, apprehend the guilty individuals, and punish them
with the utmost rigor of the law. Subjects of China guilty of any crim-
inal act toward citizens of the United States shall be punished by the
Chinese authorities according to the laws of China; and citizens of the
United States, either on shore or in any merchant vessel, who may insult,
trouble, or wound the persons or injure the property of Chinese, or com-
206
JUDICIAL EXTRATERRITORIAL RIGHTS.
mit any other improper act in China, shall be punished only by the con-
sul or other public functionary thereto authorized, according to the laws
of the United States. Arrests in order to trial may be made by either
the Chinese or the United States authorities.
ARTICLE XXIV.
+
Where there are debts due by subjects of China to citizens of the
United States, the latter may seek redress in law; and, on suitable rep-
resentations being made to the local authorities, through the consul,
they will cause due examination in the premises, and take proper steps
to compel satisfaction. And if citizens of the United States be in-
debted to subjects of China, the latter may seek redress by represen-
tation through the consul, or by suit in the consular court; but neither
government will hold itself responsible for such debts.
IV.-JAPAN.*
APAN.
Treaty of June 17, 1857.
ARTICLE IV.
Americans committing offenses in Japan shall be tried by the Ameri-
can consul general or consul, and shall be punished according to Ameri-
can laws.
Japanese committing offenses against Americans shall be tried by the
Japanese authorities, and punished according to Japanese laws.
Treaty of July 29, 1858.
ARTICLE VI.
Americans committing offenses against Japanese shall be tried in
American consular courts, and when guilty shaīl be punished according
to American law. Japanese committing offenses against Americans
shall be tried by the Japanese authorities and punished according to
Japanese law. The consular courts shall be open to Japanese creditors,
to enable them to recover their just claims against American citizens,
and the Japanese courts shall in like manner be open to American cit-
izens for the recovery of their just claims against Japanese.
All claims for forfeitures or penalties for violations of this treaty, or
of the articles regulating trade which are appended hereunto, shall be
sued for in the consular courts, and all recoveries shall be delivered to
the Japanese authorities.
Neither the American or Japanese goverments are to be held respon-
sible for the payment of any debts contracted by their respective citizens
or subjects.
V.--MADAGASCAR.
Treaty of February 14, 1867.
ARTICLE V.
Citizens of the U. S. who enter Madagascar, and subjects of Her Maj-
esty the Queen of Madagascar, while sojourning in America, are subject
*No note is made of the twelfth article of the treaty of November 14, 1878, with
France. In practice the extraterritorial jurisdiction conferred by that treaty was, dur-
ing the short time that the treaty was in force, practically construed as confined
to mariners,
JUDICIAL ÉXTRATERRITORIAL RIGHTS.
207
to the laws of trade and commerce in the respective countries. In regard
to civil rights, however, whether of person or property, of American citi-
zens, or in cases of criminal offenses, they shall be under the exclusive
civil and criminal jurisdiction of their own consul only, duly invested
with the necessary powers.
But should any American citizen be guilty of a serious criminal of-
fense against the laws of Madagascar, he shall be liable to banishment
from the country.
All disputes and differences arising within the dominions of Her Maj-
esty between citizens of the U. S. and subjects of Madagascar shall be
decided before the U. S. consul and an officer duly authorized by Her
Majesty's government, who shall afford mutual assistance and every
facility to each other in recovering debts.
VI.--MOROCCO.
Treaty of September 16, 1836.
ARTICLE XX.
If any of the citizens of the United States, or any persons under their
protection, shall have any dispute with each other, the consul sball de-
cide between the parties, and whenever the consul shall require any
aid or assistance from our government to enforce his decisions, it shall
be immediately granted to him.
ARTICLE XXI.
If a citizen of the United States should kill or wound a Moor, or, on
the contrary, if a Moor shall kill or wound a citizen of the United States,
the law of the country shall take place, and equal justice shall be ren-
dered, the consul assisting at the trial; and if any delinquent shall make
his escape, the consul shall not be answerable for him in any manner
whatever.
VII.-MUSOAT.
Treaty of September 21, 1833.
ARTICLE IX.
The President of the United States may appoint consuls to reside in
the ports of the Sultan where the principal commerce shall be carried
on, which consuls shall be the exclusive judges of all disputes or suits
wherein American citizens shall be engaged with each other. They
shall have power to receive the property of any American citizen dying
within the kingdom, and to send the same to his heirs, first paying all
his debts due to the subjects of the Sultan. The said consuls shall not
be arrested, nor shall their property be seized, nor shall any of their
household be arrested, but their persons and property and their houses
shall be inviolate. Should any consul, however, commit any offense
against the laws of the kingdom, complaint shall be made to the Presi-
dent, who will immediately displace him.
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JUDICIAL EXTRATERRITORIAL RIGHTS.
VIII.--PERSIA.
Treaty of December 13, 1856.
ARTICLE V.
All suits and disputes arising in Persia between Persian subjects and
citizens of the United States shall be carried before the Persian tribunal
to which such matters are usually referred at the place where a consul
or agent of the United States may reside, and shall be discussed and
decided according to equity, in the presence of an employé of the consul
or agent of the United States.
All suits and disputes which may arise in the Empire of Persia be-
tween citizens of the United States shall be referred entirely for trial
and for adjudication to the consul or agent of the United States resid-
ing in the province wherein such suits and disputes may have arisen,
or in the province nearest to it, who shall decide them according to the
laws of the United States.
All suits and disputes occurring in Persia between the citizens of the
United States and the subjects of other foreign powers, shall be tried
and adjudicated by the intermediation of their respective consuls or
agents.
In the United States, Persian subjects, in all disputes arising between
themselves, or between them and citizens of the United States or for-
eigners, shall be judged according to the rules adopted in the United
States respecting the subjects of the most favored nation.
Persian subjects residing in the United States, and citizens of the
United States residing in Persia, shall, when charged with criminal
offenses, be tried and judged in Persia and the United States in the
same manner as are the subjects and citizens of the most favored nation
residing in either of the above-mentioned countries.
IX.-SAMOA.
Treaty of January 17, 1878.
ARTICLE IV.
All disputes between citizens of the United States in the Samoan
Islands, whether relating to civil matters or to offenses or crimes, shall
be heard and determined by the consul of the United States at Apia,
Samoa, under such regulations and limitations as the United States may
provide; and all disputes between citizens of the United States and the
people of those Islands shall be heard by that consul in conjunction
with such officer of the Samoan Government as may be designated for
that purpose. Crimes and offenses in cases where citizens of the United
States may be convicted shall be punished according to the laws of their
country; and in cases where the people of the Sainoan Islands may be
convicted, they shall be punished pursuant to Samoan laws and by the
authorities of that country.
X-TRIPOLI.
Treaty of June 4, 1805.
ARTICLE XVIII.
If
any of the citizens of the United States, or any persons under their
protection, shall have any disputes with each other, the consul shall de-
JUDICIAL EXTRATERRITORIAL RIGHTS.
209
cide between the parties, and whenever the consul shall require any aid
or assistance from the government of Tripoli to enforce his decisions, it
shall immediately be granted to him, and if any dispute shall arise be-
tween any citizen of the United States and the citizens or subjects of
any other nation having a consul or agent in Tripoli, such disputes shall
be settled by the consuls or agents of the respective nations.
ARTICLE XIX.
If a citizen of the United States should kill or wound a Tripoline,
or, on the contrary, if a Tripoline shall kill or wound a citizen of thé
United States, the law of the country shall take place, and equal justice
shall be rendered, the consul assisting at the trial, and if any delin-
quent shall make his escape, the consul shall not be answerable for him
in any manner whatever.
XI.-TUNIS.
:
Treaty of August, 1797.
ARTICLE XX.
The consul shall be the judge in all disputes between his fellow-citi-
zens or subjects, as also between all other persons who may be imme-
diately under his protection; and in all cases wherein he shall require
the assistance of the government where he resides to sanction his de-
cisions, it shall be granted to him.
ARTICLE XXI.
If a citizen or subject of one of the parties shall kill, wound, or strike
a citizen or subject of the other, justice shall be done according to the
laws of the country where the offense shall be committed : The consul
shall be present at the trial; but if any offender shall escape, the con..
sul shall be in no manner responsible for it.
ARTICLE XXII.
If a dispute or law-suit on commercial or other ci vil matters shall
happen, the trial shall be had in the presence of the consul, or of a con-
fideutial person of his choice, who shall represent him, and endeavor to
accommodate the difference which may have happened between the citi-
zens or subjects of the two nations.
XII.-TURKEY.
Treaty of May 7, 1830.
ARTICLE IV.
If litigations and disputes should arise between the subjects of the
Sublime Porte and citizens of the United States, the parties shall not be
heard, nor shall judgments be pronounced unless the American Drago
man be present. Causes in which the sum may exceed five hundred
piastres, shall be submitted to the Sublime Porte, to be decided accord-
ing to the laws of equity anıl justice. Citizens of the Uuited States of
America, quietly pursuing their cominerce, and not being charged or
convicted of any crime or offense, shall not be molested ; and even when
they may have committed some offense they shall not be arrested and
put in prison, by the local authorities, but they shall be tried by their
minister or consul, and punished according to their offense, following,
in this respect, the usage observed toward other Franks.
S. Mis. 89. 14
1
210
JUDICIAL EXTRATERRITORIAL RIGHTS.
APPENDIX XIV.
DRAFT OF THE PROPOSED ACT.
AN ACT concerning the exercise of the jurisdiction conferred upon the United States
in places out of their territory and doininion, and to amend the Revised Statutes
from sections 4082 to 4130 inclusive.
Be it enacted by the Senate and House of Representatives in Congress as-
sembled, The jurisdiction which the United States now have, or hereaf-
ter may have and enjoy by treaty, custom, usage, or otherwise in.coun-
tries or places out of their territory or dominion, so far as the same is.
judicial, shall be exercised through and by the courts herein provided
for, each of which shall be a court of record.
SEC. 2. In China and Japan it shall be exercised through and by con-
sular courts, district courts, and one supreme court, each of which shall
be a.court of record with a seal under the provisions of this act, and of
sections 4082 to 4130 of the Revised Statutes, both inclusive, as the same
are amended and changed hereby.
SEC. 3. The consular courts in China and Japan and the grades and
ranks of the officers thereof shall be as now established, except as
changed hereby. The person authorized to hold such a court is the prin-
cipal consular officer of the district, holding a commission from the Presi-
dent according to law; or in his 'absence the vice-consul holding the
warrant of the Secretary of State; or in the absence of both, the per-
son acting as consul with the written consent and approval of the prin-
cipal diplomatic representative of the United States in the country.
The Secretary of State shall assign to each consulate in China and Ja-
pan a consular clerk who shall also act as clerk of the consular court,
and as a master in chancery. And for this purpose the number of con-
sular clerks authorized by section 1704 of the Revised Statutes is in-
creased to twenty-five. Such consular clerk shall have the custody of
the seal and records, with the usual powers and duties of the clerk of
a court of record, and shall also be under the consul in his consular ca-
pacity, and shall execute a bond to the United States for the faithful
discharge of his duties, in such amount as shall be fixed by the Secre-
tary of State, and with sureties who shall be approved by the court.
SEC. 4. The consular officers authorized to hold such courts shall con-
tinue to have the power as fully as they now have, to issue warrants,
and cause to be arrested, citizens of the United States charged with
the commission of misdemeanors, offenses, or crimes. When it appears
that the offense or crime has been committed within another consular
district they may, on the requisition of the consul of the district. within
which the crime was committed, send the offender in custody to the
consul making the requisition, or require him to give security for his
appearance there. When it is charged that the misdemeanor, offence,
or crime was committed within the consul's district, the consular court
may take jurisdiction of, try, and punish, citizens of the United States
so charged, when the offence is not punishable with death, in the saine
way that such courts have been used to do, except that when the mis-
demeanor, offence, or crime charged is punishable by imprisonment for
more than six months, or by fine exceeding two hundred dollars, a jury
JUDICIAL EXTRATERRITORIAL RIGHTS.
211
shall be had to try the facts, and a review may be had in the proper
district court on the rulings of the consular court on questions of law..
Said consular courts shall have original jurisdiction in civil cases as
provided in section 4107 of the Revised Statutes, except that in all
cases where more than two hundred dollars is involved a jury may be
summoned when desired by either party, in which case the jury shall
be judges of the facts.
All provisions authorizing appeals from consular courts to a minister
or other diplomatic officer, or to the circuit court for the district of Cali-
fornia, are hereby repealed. The rulings of a consular court in civil cases,
whether held by a consul alone, or with associates on questions of law,
may be reviewed in the district court within which the consular district
is situated, when the amount in controversy, exclusive of costs, exceeds
five hundred dollars, or when the court certifies that the case involves
legal perplexities and should be reviewed.
SEC. 5. There shall be appointed by the President, by and with the
advice and consent of the Senate, a district judge of the United States
for China and a district judge of the United States for Japan, whose
terms of office shall be eight years respectively, and in case of vacancies
the persons appointed to the place, from time to time, shall hold office
for like terms. Each judge shall receive compensation at the rate of
five thousand dollars a year, payable monthly, and his necessary trav-.
eling expenses in the discharge of his duty, payable on his own voucher
at the rate of eight cents a mile, hotel lodging and board bills being
excluded and not to be paid.
The consular districts of Canton, Amoy, and Swatow shall constitute:
the first judicial district, with the seat of the court at Canton. The
consular districts of Shanghai, Ningpo, Chin-Kiang, and Foo-Chow
shall constitute the second judicial district with the seat of the court at
Shanghai. The consular districts of Tien-Tsin and New-Chwang shall
constitute the third judicial district, with the seat of the court at Tien-
Tsin. And the consular districts within the Empire of Japan shall con-
stitute the fourth judicial district with the seat of the court at Yokahama..
But the Secretary of State may, from time to time, change these dis-
tricts, as convenience may require.
The President may also, by and with the advice and consent of the
Senate, appoint a clerk for the district courts held by the district judge.
for China, who shall have his principal office at Shanghai, and shall
also be the clerk of the supreme court for China, and a clerk for the
district courts held by the district judge for Japan, who shall have his.
principal office at Yokahama, and shall also be the clerk of the supreme
court for Japan. Each of these clerks shall also be a master in chancery
and receive an annual salary of two thousand five hundred dollars, and
his fees as master in chancery, and such portion of his fees as clerk as:
he is entitled to retain under the provisions of this act, and his neces-
sary traveling expenses in attending court, to be computed as in case
of the district judges. At the time of his appointment he shall bave
been admitted to practice in the Supreme Court of the United States,
or in the highest judicial court of one of the States, or of the District of
Columbia.
On the nomination of the district judge for China the Secretary of
State may appoint an interpreter for the district courts in China; and
on the nomination of the district judge for Japan he may appoint an
interpreter for the district courts in Japan. Each of these interpreters
shall receive a salary at the rate of two thousand dollars a year, payable
monthly, and his necessary traveling expenses in attending court, to
:
212
JUDICIAL EXTRATERRITORIAL RIGHTS:
be computed as in case of the district judges. Each shall also be the
interpreter for the supreme court of the country for which he is ap-
pointed. Before entering upon the duties of his office, each shall sub-
scribe and take an oath before the district judge faithfully to observe
the laws of the United States in force in .(Chiva or Japaul as the case
may be) and the rules of the court of which he is an officer, and truly
to interpret between the court and the witness in all causes, civil or
criminal, iv wbich be may be employed, wbich oath shall be filed in the
archives of the court. A willful failure to so interpret truly shall make
the offender guilty of perjury, for which he may be tried and convicted
by the proper consular court, although he be not a citizen of the United
States.
The said district courts may appoint temporary officers when neces-
sary to the proper conduct of their business, and fix a reasonable com-
pensation for their services, which sball be paid by the clerk out of any
funds in his hands applicable to that purpose, or by the conşul of the
district on the certificate of the clerk that he has no such funds.
A term of court in each district shall commence on the second Mon-
day in January in each year, and end on the last Wednesday in Decem-
ber. The district judge for China shall hold the courts in the first and
second districts and the district judge for Japan in the third and fourth
districts; but either judge may sit in a district of the other if desired to
do so. If no judge is present at the opening of term, court shall be
opened by the clerk, or in his absence by the principal consular officer
of the district, or by the clerk of the consular court of the district; and
shall be adjourned to some time to suit the convenience of the judge,
but court shall be held at least once a year in each district, and as much
oftener as the necessities of business require and the convenience of the
court permits.
Each district court within its own district shall have power to issue
writs of habeas corpus.
Said district court shall have original exclusive jurisdiction in all
cases in equity and admiralty, and original jurisdiction concurrently
with consular courts in all civil suits where the amount involved exceeds
five hundred dollars exclusive of costs. They shall also have appellate
jurisdiction on questions of law-brought up from consular courts accord-
ing to the provisions of Section 4.
In criminal proceedings said district courts shall have appellate juris-
diction to review rulings of consular courts on questions of law brought
up according to the provisions of Section 4.
Persons charged with offences punishable by death shall be tried in a
district court held in the consular district. where the offence was com.
mitted. This court shall be held by a district judge as presiding judge
and the person authorized to hold the consular court in the district. In
case of difference of opinion the ruling of the district judge shall stand
as the ruling of the court.
If the district judge of the district certifies in writing to the consul
that neither district judge can be present, the court shall be held as a
district court by the consul as presiding judge together with four im-
partial citizens of the United States selected by the consul from the
leading citizens residing in his consular district. A jury summoned as
in other cases of aggravated offences shall be judges of the facts. In
case of difference of opinion between the consul and his associates the
ruling of the consul shall prevail on questions of law. The proceedings
shall be prosecuted in such court to final judgment and sentence in case
of conviction. All rulings of law adverse to the accused in a court not
1
JUDICIAL EXTRATERRITORIAL RIGHTS.
213
presided over by a district judge shall be subject to review in the district
court.
It shall be the duty of the presiding judge at all capital trials to at
once report the proceedings in full to the principal diplomatic represent-
ative of the United States in the country, with a statement of any pal-
liating circumstances, if there be such. If the diplomatic representa-
tive thinks the case a proper subject for pardon or commutation, he may
grant a reprieve not exceeding six months, and shall at once forward
the papers to the Secretary of State in order that they may be submitted
to the President.
On any final judgment of said district court in a case brought up for
review from a consular court where the matter in controversy, exclu-
sive of costs, exceeds the sum of twenty-five hundred dollars, and on
questions of law in suits originally begun and prosecuted to final judg-
ment in said courts, where the matter in controversy is of like amount,
an appeal shall be allowed to the supreme court of the United States
for China or Japan, as the case may be.
It shall also be competent for a district judge to certify for review in
the proper supreme court any rulings of law adverse to the accused in
a capital trial, when he shall desire to have them reviewed.
SEC. 6. The said district judges sitting together at Shanghai, and with
the consular officer authorized to hold consular court at that port, shall
constitute and be styled the supreme court of the United States for
China; and the said judges sitting together at Yokabama and with the
consular officer authorized to hold consular court at that port shall con-
stitute and be styled the supreme court of the United States for Japan;
the district judge for China shall be the presiding judge at Shanghai,
and the distriet judge for Japan shall be the presiding judge at Yoka-
hama; and while the said supreme court is in session at either port the
vice-consul, or, in his absence, the deputy consul of the district, shall hold
the consular courts of the district. The supreme court may also during
sessions of court appoint temporary officers when necessary for the
proper conduct of business in the supreme and consular courts, and may
fix a reasonable compensation for their services, which shall be paid by
the clerk out of any funds in his hands applicable to the purpose, or by
the consul-general out of the appropriations for contingent expenses of
consulates, on the certificate of the clerk that he has no such funds.
The supreme court for China shall have appellate jurisdiction to hear
and determine all causes whether civil or criminal decided in China and
brought before it for review under the foregoing provisions; and the su-
preme court for Japan shall have like jurisdiction as to cases decided in
Japan and brought before it for review.
The said district judges, jointly, shall make rules for the conduct of
causes in the consular and district courts in China and Japan, and for
regulating the forms of pleadings in all the courts, and the manner of
removing
causes to the appellate courts, and of defining the points to be
reviewed, and for the taxation of costs in those courts and in the su-
preme court, not inconsistent with the provisions of this act and rules
for governing proceedings in the supreme courts, and the transmission of
causes to and from them.
The said supreme courts may affirm, modify, or reverse any judgment,
decree, or order lawfully brought before them for review, and inay di-
rect such judgment, decree, or order to be rendered, or such further pro-
ceedings to be had by the inferior court as the justice of the case may
require. They shall not issue executions in causes removed before them
214
JUDICIAL EXTRATERRITORIAL RIGHTS.
1
from inferior courts, but shall send a special mandate to the inferior
court to award execution thereupon.
In all civil cases in the consular and district courts, where a judg-
ment for money is rendered, if the party against whom such judgment
is rendered appeals and desires to have execution stayed, he shall exe-
cute a bond to the appellee in such sum as may be fixed by the court,
with sureties to be approved by the clerk, which bond shall be filed with
the clerk, conditioned to pay any final judgment that may be rendered
against him. The appellant may prosecute his appeal without bond,
but in such case execution shall not be stayed.
SEC. 7. Any citizen of the United States residing in China or Japan,
and owing more than two hundred dollars, may be declared an insol.
vent debtor: First, when he departs from the consular district in which
he resides with intent to defraud his creditors, or, being absent, re-
mains absent with such intent; second, when he conceals himself to
avoid service of legal process in any action for the recovery of a debt
or demand provable in insolvency; tbird, when he conceals or disposes
of his property in any part of the country in wbich he resides for the
purpose of delaying or defrauding his creditors; fourth, when an execu-
tion against him shall be returned unsatisfied after demand upon the
debtor to expose sufficient property to satisfy it, and neglect to do
so for a period of ten days. Any such citizen inay also voluntarily be-
come an insolvent debtor on his own petition. All these provisions
apply to partnerships.
The consular court of the district in which the insolvent resides shall
have jurisdiction of the case, and that general jurisdiction shall extend
to all parts of the country in which the insolvent resides. The courts
shall have power to receive petitions setting forth the causes for insolv-
ency, to administer oaths, to take proof in support of and against debts,
to punish for contempt, to order choice of assignees, to make and exe-
cute assignments, to order sales of real and personal property, to order
payment of dividends, to discharge dėbtors, and generally to do any
and all things which a court of insolvency usually can do to settle and
distribute the estate of an insolvent debtor.
The Secretary of State and the Attorney-General shall, as part of the
code which they are hereinafter authorized to make, provide regulations
for the form of petitions, for the filing schedules of debts and liabili-
ties, for the proof of debts, for the choice of assignees, for the decla-
ration of dividends, for the sale of real or personal property, for the
discharge of the insolvent, or for refusing the same and the causes
therefor, for the settlement of the estate, for the amount of fees and
costs, and any other necessary matters, and may direct that any or all
of such proceeds, after filing the original petition, except the discharge
of the debtor, may be done by the clerk as master in chancery.
An assignment, when executed, shall relate back to the commence-
ment of the proceedings in insolvency, and by operation of law shall
vest the title to all the property and estate of the insolvent, real and
personal, in the country in which he resides, with all his deeds, books,
and papers relating thereto in the assignee, and shall dissolve all mort-
gages and liens created within sixty days preceding the date of the
petition in insolvency, created to secure a pre-existing debt, and all
such mortgages and liens are hereby declared to be fraudulent and void
as against an assignee in insolvency.
Every such citizen may have and bold, exempted from execution and
from the operation of an insolvent law, his necessary household and
kitchen furniture, according to his station in life, but to an amount not
JUDICIAL EXTRATERRITORIAL RIGHTS.
215
exceeding five hundred dollars, and the necessary wearing apparel of
himself and of his wife and children, and his library and books to the
value of not more than two hundred dollars, family portraits, the watches
usually worn by himself and his wife, and sufficient food for himself and
his family for not more than twenty days. With this exception an 'as-
signment shall vest in the assignee all the property and estate of the
insolvent as aforesaid, and all property conveyed by him in fraud of his
creditors, and generally all the rights in and to any of such property
which an assignee of a bankrupt might have enjoyed under the provis-
ions of the Revised Statutes.
A creditor whose debt is secured by mortgage of real estate, or pledge,
or hypothecation of personal property of the debtor, cannot prove his
debt in insolvency unless he first surrenders his lien or mortgage, and
a proof of such debt shall work a surrender and discharge of the lien
or mortgage.
The following claims are entitled to preference or priority in payment:
First, fees, costs, and expenses of the proceedings in insolvency; sec-
ond, debts due to the United States; third, wages to operatives, clerks,
or house servants, incurred within three months before the date of the
petition.
Appeals from proceedings in insolvency shall be taken to the district
court of the district in which the consulate is situated. Appeals from
suits brought by assignees in other consular courts to recover property
shall be taken to the district court of the district in which said last-
named consular court is situated; but no appeal shall be taken in any
case unless the amount involved is such as would permit the appeal of
an ordinary civil suit.
SEC. 8. In all other such places out of the territory and dominion of
the United States such jurisdiction shall be exercised through and by
consular courts in manner as provided by the Revised Statutes as
amended and changed by this section.
Sections 4091, 4092, 4093, 4094, 4095, 4096, 4101, 4102, 4105, 4106, 4108,
4117, 4118, 4119, 4120, 4123, 4124, and 4128 are hereby repealed.
Sections 4082 to 4090, both inclusive, 4097, 4098, 4099, 4100, 4103,
4104, 4107, 4109 to 4116, both inclusive, 4121, 4122, 4125, 4126, 4127, 4129,
and 4130 are amended so as to read as in this section set forth, and are
hereby re-enacted as part of this act in the following words and figures:
[Matter stricken out in original inserted within brackets; amendments in italics.]
SEC. 4082. Marriages in presence of any consular officer of the
United States in a foreign country, between persons who would be au-
thorized to marry (if residing in the District of Columbia), under the pro-
visions of section 12 of this act, shall be valid to all intents and pur-
poses, and shall have the same effect as if solemnized within the United
States. When the laws of the country in which a consulate is situated re-
quire marriages to be celebrated before a civil officer of the country, the
presence of the consul at the civil ceremony shall be taken to be a compliance
with the provisions of this act. And such consular officers shall, in all
cases, gire to the parties married before them a certificate of such mar-
riage, and shall send another certificate thereof to the Department of
State, there to be kept; such certificates shall specify the names of the
parties, their ages, places of birth, and residence.
SEC. 4083. To carry into full effect the provisions of the treaties of
the United States with Obina, Japan, Siam, Egypt, and Madagascar,
respectively, the minister and the consuls of the United States, duly
appointed to reside in each of those countries, shall, in addition to
other powers and duties imposed upon them, respectively, by the pro-
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JUDICIAL EXTRATERRITORIAL RIGHTS.
انا
visions of such treaties, respectively, be invested with the judicial au-
thority herein described, which shall appertain to the office of minister
and] consul, and be a part of the duties belonging thereto, wherein, and
so far as, the same is allowed by treaty.
Sec. 4084. The officers mentioned in the preceding section are fully
empowered to arraign and try, in the manner herein provided, except as
otherwise provided as to offenses committed in China and Japan, all citi-
zens of the United States charged with offenses against law, committed
in such countries, respectively, and to sentence such offenders in the
manner herein authorized ; and each of them is authorized to issue all
such processes as are suitable and necessary to carry this authority into
execution.
SEC. 4085. Such officers are also invested with allthe judicial author-
ity necessary to execute the provisions of such treaties, respectively,
in regard to civil rights, whether of property or person, except as other-
wise provided as to China and Japan; and they shall entertain jurisdic-
tion in matters of contract, at the port where, or nearest to which, the
contract was made, or at the port at which, or nearest to which, it was to
be executed, and in all other matters, at the port where, or nearest to
which, the cause or controversy arose, or at the port where, or nearest to
which the damage complained of was sustained, provided such port be one
of the ports at which the United States are represented by consuls. Such
jurisdiction shall embrace all controversies between citizens of the
United States, or others, provided for by this act or by such treaties,
respectively.
SEC. 4086. Jurisdiction in both criminal and civil matters shall, in all
cases, be exercised and enforced in conformity with the laws of the
United States, heretofore enacted or hereafter to be enacted, which are
hereby, so far as is necessary to execute such treaties, respectively, and
so far as they are suitable to carry the same into effect, extended over
all citizens of the United States in those countries, and over all others
to the extent that the terms of the treaties, respectively, justify or re-
quire. But in all cases where such laws are not adapted to the object,
or are deficient in the provisions necessary to furnish suitable remedies,
the common law and the law of equity and admiralty shall be extended
in like manner over such citizens and others in those countries; and if
neither the common law, nor the law of equity or admiralty, nor the
statutes of the United States, furnish appropriate and sufficient reme-
dies, the [ministers in those countries, respectively) Secretary of State and
Attorney-General shall, by decrees and regulations to be approved by the
President, which shall have the force of law, supply such defects and
deficiencies.
SEC. 4087. Each of the consuls mentioned in section forty hundred
and eighty-three, at the port for which he is appointed, is authorized
upon facts within his own knowledge, or which he has good reason to
believe true, or upon complaint made or information filed in writing and
authenticated in such way as shall be prescribed by [the minister] regu-
lations by the Secretary of State and the Attorney-General, with the Presi.
dent's approval, to issue his warrant for the arrest of any citizen of the
United States charged with committing in the country an offense against
law; and to arraign and try any such offender; and to sentence him to
punishment in the manner herein prescribed.
SEC. 4088. The powers conferred upon consuls by this act not specially
relating to China, Japan, or the dominions of the Ottoman Porte are also
extended to consuls and commercial agents of the United States at islands
or in countries not inhabited by any civilized people, or recognized by
2
JUDICIAL EXTRATERRITORIAL RIGHTS.
217
any treaty with the United States are authorized to try, hear, and de-
termine all cases in regard to civil rights, whether of person or property,
where the real debt or damages do not exceed the sum of one thousand
dollars, exclusive of costs, and, upon full hearing of the allegations and
evidence of both parties, to give judgment according to the laws of the
United States, and according to the equity and right of the matter, in
the same manner as justices of the peace are now authorized and em-
powered where the United States have exclusive jurisdiction. They are
also invested with the powers conferred by the provisions of sections
forty hundred and eighty-six and forty hundred and eighty-seven for
trial of offenses or misdemeanors.
SEC. 4089. Any consul when sitting alone may also decide all cases
in which the fine imposed does not exceed [five) two hundred dollars, or
the term of imprisonment does not exceed (ninety days) six months ;
but in all such cases, if the fine exceeds (one) two hundred dollars, or
the term of imprisonment for misdemeanor exceeds (sixty days, the de-
fendants or any of them, if there be more than one, may take the case,
by appeal, before the minister, if allowed jurisdiction, either upon errors
of law or matters of fact, under such rules as may be prescribed by the
minister for the prosecution of appeals in such cases six months, or the
offense is punishable with death, a jury shall be had to try the facts. If a jury
of five impartial citizens of the United States cannot be obtained, the consut
may proceed to trial with three such citizens. If within a consular district
within the dominion of the Ottoman Porte it shall be impossible to find three
such citizens, he shall report the fact to the principal diplomatic officer of
the United States at Constantinople, who shall thereupon fix a day for the
trial of the accused, and shall order three disinterested consular officers of
the United States serving within said dominions, but not within the con-
sular district in which the accused is to be tried, to proceed to the place of
trial and act as jurors. If the offense is punishable with death, and there
be a diplomatic representative of the United States in the country in which
the consulate is situated, the consular officer shall report the proceedings in
full without delay to him, calling attention to any palliating circumstances.
If there be no such representative there, the consul shall report the case to
the Secretary of State and arcait instructions.
SEC, 4090. (Capital cases for murder or insurrection against the gov-
ernment of either of the countries hereinbefore mentioned, by citizens
of the United States, or for offenses against the public peace amounting
to felony under the laws of the United States, may be tried before the
minister of the United States in the country where the offense is.
committed if allowed jurisdiction; and every such minister,] on the
representation of any diplomatic or naval officer of the United States, any
court under this act may issue all manner of writs, to prevent the citi-
zens of the United States from enlisting in the military or naval service
of either of the said countries, to make war upon any foreign power
with whom the United States are at peace, or in the service of one por.
tion 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.
[SEC. 4091. Each of the ministers mentioned in section forty hundred
and eighty-three shall, in the country to which he is appointed, be fully
authorized to hear and decide all cases, criminal and civil
, which may
come before him, by åppeal, under the provisions of this title, and to
issue all processes necessary to execute the power conferred upon him;
and he is fully empowered to decide finally any case upon the evidence
which comes up with it, or to hear the parties further, if he thinks jus-
218
JUDICIAL EXTRATERRITORIAL RIGHTS.
tice will be promoted thereby; and he may also prescribe the rules
upon which new trials may be granted, either by the consuls or by him.
-self, if asked for upon sufficient grounds.]
(SEC. 4092. On any final judgment in a consular court of China or
Japan, where the matter in dispute exceeds five hundred dollars and
does not exceed two thousand five hundred dollars, exclusive of costs,
an appeal shall be allowed to the minister in such country, as the case
may be. But the appellant shall comply with the conditions established
by general regulations. And the ministers are hereby authorized and
required to receive, hear, and determine such appeals.
[SEC. 4093. On any final judgment in any consular court of China or
Japan, where the matter in dispute, exclusive of costs, exceeds the sum
of two thousand five hundred dollars, an appeal shall be allowed to the
circuit court for the district of California, and upon such appeal a trans-
cript of the libel, bill, answer, depositions, and all other proceedings in
the cause shall be transmitted to the circuit court, and no new evidence
shall be received on the hearing of the appeal; and the appeal shall be
subject to the rules, regulations, and restrictions prescribed in law for
writs of error from district courts to circuit courts.]
(SEC. 4094. On any final judgment of the minister to China or to Japan,
given in the exercise of original jurisdiction, where the matter in dis-
pute, exclusive of costs, exceeds two thousand five hundred dollars, an
appeal shall be allowed to the circuit court, as provided in the preced-
ing section.
[SEC. 4096. When any final judgment of the minister to China or to
Japan is given in the exercise of original or of appellate criminal ju-
risdiction, the person charged with the crime or offense, if he considers
the judgment erroneous, in point of law, may appeal therefrom to the
circuit court for the district of California; but such appeal shall not
operate as a stay of proceedings, unless the minister certifies that there
is probable cause to grant the same, when the stay shall be such as the
interests of justice may require.]
[SEC. 4096. The circuit court for the district of California is authorized
and required to receive, hear, and determine the appeals provided for
in this title, and its decisions shall be final.]
SEC. 4097. In all cases, criminal and civil, the evidence shall be taken
down in writing in open court, under such regulations as may be made
for that purpose; and all objections to the competency or character of
testimony shall be noted, with the ruling in all such cases, and the evi.
dence shall be part of the case.
SEC. 4098. It shall be the duty of [the ministers and the consuls in.
the countries mentioned in section forty hundred and eighty-three, to
encourage the settlement of controversies of a civil character, by mutual
agreement, or to submit them to the decision of referees agreed upon by
the parties. The Secretary of State and the Attorney:General shall, as part
of the code herein provided for, prepare and issue a general form for such
submission, to be signed by the parties and aclonowledged before the consular
.court; (and the minister in each country shall prepare a form of submis-
sion for such cases, to be signed by the parties, and acknowledged before
the consul. When parties have so agreed to refer, the referees may,
after suitable notice of the time and place of meeting for the trial, pro-
ceed to hear the case, and a majority of them shall have power to decide
the matter. If either party refuses or neglects to appear, the referees
may proceed ex parte. After hearing any case such referees may deliver
their award, sealed, to the consul, who, in court, shall open the same;
and if he accepts it, he shall indorse the fact, and judgment shall be
JUDICIAL EXTRATERRITORIAL RIGHTS. .
219
rendered thereon, and execution issue in compliance with the termis
thereof. The parties, however, may always settle the same before return
thereof is made to the consul.
SEC. 4099. In all criminal cases which are not of a heinous character,
it shall be lawful for the parties aggrieved or concerned therein, with
the assent of the (minister in the country, or] conşul of the district to
adjust and settle the same among themselves, upon pecuniary or other
considerations.
SEC. 4100. The ministers and consuls shall be fully authorized to call
upon the local authorities to sustain and support them in the execution
of the powers confided to them by treaty, and on their part to do and
perform whatever is necessary to carry the provisions of the treaties
into full effect, so far as they are to be executed in the countries, re.
spectively
[SEC. 4101. In all cases, except as herein otherwise provided, the
punishment of crime provided for by this title shall be by fine or im-
prisonment, or both, at the discretion of the officer who decides the case,
but subject to the regulations herein contained, and such as may here-
after be made. It shall, however, be the duty of such officer to award
punishment according to the magnitude and aggravation of the offense.
Every person who refuses or neglects to comply with the sentence passed
upon him shall stand committed until he does comply, or is discharged
by order of the consul, with the consent of the minister in the country.]
SEC. 4102. Insurrection or rebellion against the government of either
of those countries, with intent to subvert the same, and murder, shall
be capital offenses, punishable with death; but no person shall be con-
victed of either of those crimes unless the consul and his associates in
the trial all concur in opinion, and the minister also approves of the
conviction. But it shall be lawful to convict one put upon trial for
either of these crimes, of a less offense of a similar character, if the
evidence justifies it, and to punish as for other offenses, by fine or im-
prisonment or both.]
SEC. 4103. Whenever any person is convicted of either of the crimes
punishable with death, in either of those countries, it shall be the duty
of the minister 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; and if he finds mitigating circumstances which
authorize it, he may submit the case to the President for pardon.
SEC. 4104. No fine imposed by a consul for a. contempt committed in
presence of the court, or for failing to obey a summons from the same,
shall exceed fifty dollars, nor shall the imprisonment exceed twenty-four
hours for the same contempt.
[SEC 4105. Any consul, when sitting alone for the trial of offenses or
misdemeanors, shall decide finally all cases where the fine imposed does
not exceed one hundred dollars, or the term of imprisonment does not
exceed sixty days.]
[SEC. 4106. Whenever, in any case, the consul is of the opinion that,
by reason of the legal questions which may arise therein, assistance will
be useful to him, or whenever be is of opinion that severer punishments
than those specified in the preceding sections will be required, he shall
summon, to sit with him on the trial, one or inore citizens of the United
States, not exceeding four, and in capital cases not less than four, who
shall be taken by lot from a list which had previously been submitted
to and approved by the minister, and shall be persons of good repute
and competent for the duty. Every such associate shall enter upon the
220
JUDICIAL EXTRATERRITORIAL RIGHTS.
record his judgment and opinion, and shall sign the same, but the con-
sul shall give judgment in the case. If the consul and his associates
concur in opinion, the decision shall, in all cases, except of capital of-
fenses and except as provided in the preceding section, be final. If
any of the associates differ in opinion from the consul, the case, with-
out further proceedings, together with the evidence and opinions, shall
be referred to the minister for his adjudication, either by entering up
judgment therein, or by remitting the same to the consul, with instruc-
tions how to proceed therewith.
SEC. 4107. [Each of the consuls mentioned in section four thousand
and eighty-three shall have at the port for which he is appointed, juris-
diction as herein provided, in all civil cases arising under such treaties,
respectively, wherein the damages demanded do not exceed the sum of
five hundred dollars; and, if he sees fit to decide the same without aid,
his decision thereon shall be final. But whenever he is of opinion that
any such case involves legal per plexities, and that assistance will be
useful to him, or whenever the damages demanded exceed fire hundred
dollars, he shall summon, to sit with him on the hearing of the case,
not less than two nor more than three citizens of the United States, if
such are residing at the port, who shall be taken from a list which had
previously been submitted to and approved by the minister, and shall
be of good repute and competent for the duty. Every such associate
shall note upon the record his opinion, and also, in case he dissents
from the consul, such reasops therefor as he thinks proper to assigu;
but the consul shall give judgment in the case. If the consul and his
associates concur in opinion, the judgment shall be fival. If any of the
associates differ in opinion from the consul, either party may appeal to
the minister, under such regulations as may exist; but if no appeal is
lawfully claimed, the decision of the consul shall be final]. Except in
China and Japan, for which provision has already been made, in every civil
case pending before a consular court involving imore than two hundred dol-
lars exclusive of costs, either party may demand a jury on the terms and
conditions in this act provided; the jury, if summoned, shall be judge of the
facts, and the consular court shall be judge of the law. If the amount in-
volved exclusive of costs in a case pending in the consular court in the Otto-
man dominions is more than one thousand dollars, either party may appeal
to the consul general at Constantinople for a review on questions of law,
the appeal to be taken within such time and on such terms as to security
and stay of execution, and in such manner as the Secretary of State and
the Attorney-General may provide in said code. The consul-general, shall
hear such appeal, and after deciding the same, remand the case to the con-
sular court, either
for entry or final judgment, in accordance with his deci-
sion, or for such further proceedings as may be necessary.
[SEC. 4108. The jurisdiction allowed by treaty to ministers, respect-
ively, in the countries named in section four thousand and eighty-three
shall be exercised by them in those counties, respectively, wherever they
may be.]
SEC. 4109. [The jurisdiction of such ministers in all matters of civil
redress, or of crimes, except in capital cases for murder or insurrection
against the governments of such countries, respectively, or for offenses
against the public peace, amounting to felony under the laws of the
United States, shall be appellate only: Provided, That in] any diplo-
matic officer of the United States may hear cases, or another consular officer
in the same county may be ordered to hear cases where a consular officer
is interested, either as party or witness, such minister shall have original
jurisdiction.
JUDICIAL EXTRATERRITORIAL RIGHTS.
221
SEC. 4110. All such officers shall be responsible for their conduct to
the United States, and to the laws thereof, not only as (diplomatic or]
consular officers, but as judicial officers, when they perform judicial du-
ties, and shall be held liable for all negligences and misconduct as pub-
lic officers.
SEC. 4111. The President is authorized to appoint one marshal for
each of the judicial districts in China and Japan, and one for Turkey and
one for Siam, each of whom shall receive a salary of one thousand dollars
a year, in addition to the fees allowed under this act. Each such marshal
may appoint one or more deputies, who shall be compensated from the fees
under this act, and for whose official acts the marshal shall be responsible.
(marshals for such of the consular courts in those countries as he may
think proper, not to exceed seven in number, namely, one in Japan, four
in China, oné in Siam, and one in Turkey, each of whom shall receive a
salary of one thousand dollars a year, in addition to the fees allowed by
the regulations of the ministers, respectively, in those countries.
SEC. 4112. It shall be the duty of the marshals, respectively, to exe-
cute all process issued by the minister) courts of the United States in
those countries, respectively, for by the consul at the port at which they
reside,] and to make due return thereof to the officer by whom it was
issued, and to conform in all respects to the regulations prescribed [by
the ministers, respectively,] in regard to their duties.
SEÇ. 4113. Each marshal, before entering upon the duties of his of-
fice, shall give bond for the faithful performance thereof in a penal sum
not to exceed ten thousand dollars, with two sureties to be approved
by the district judge for China, or the district judge for Japan, or the
consul-general at Constantinople, or the consul at Bangkok, as the case
May be [Secretary of State. Such bond shall be transmitted to the
Secretary of the Treasury, and a certified copy thereof be lodged in the
office of the minister clerk of the court in China or Japan, or of the
.consul-general at Constantinople, or of the consul at Bangkok.
SEC. 4114. Whenever any person desires to bring suit upon the bond
of any such marshal, it shall be the duty of the Secretary of the Treas-
ury, or of the minister clerk, consul-general, or consul, having custody
of a copy of the same, to give to the person so applying a certified copy
thereof, upon which suit may be brought and prosecuted with the same
effect as could be done upon the original: Provided, The Secretary of
the Treasury, or the (minister] clerk, consul-general, or consul, to whom
the application is made, is satisfied that there is probable cause of ac-
tion against the marshal.
SEC. 4115. Upon a plea of non est factum, verified upon oath, or any
other good cause shown, the court for the consul or minister] trying the
cause may require the original bond of the marshal in those countries
to be produced; and it shall be the duty of the Secretary of the Treas-
ury to forward the original bond to the court (or consul or minister] re-
quiring the same.
SEC. 4116. All rules, orders, writs, and processes of every kind which
are intended to operate or be enforced against any of the
marshals, in
any of the countries named in this title, shall be directed to and exe-
cuted by such persons as may be appointed for that purpose by the
[minister or] consul issuing the same.
[SEC. 4117. In order to organize and carry into effect the system of
.jurisprudence demanded by such treaties, respectively, the ministers,
with the advice of the several consuls in each of the countries, respect-
ively, or of so many of them as can be conveniently assembled, shall
prescribe the forms of all processes to be issued by any of the consuls ;
!
222
JUDICIAL EXTRATERRITORIAL RIGHTS.
the inode of executing and the time of returning the same; the manner
in which trials shall be conducted, and how the records thereof shall be
kept; the form of oaths for Christian witnesses, and the mode of exam-
ining all other witnesses; the costs to be allowed to the prevailing party,
and the fees to be paid for judicial services; the manner in which all
officers and agents to execute process, and to carry this title into effect,
shall be appointed and compensated; the form of bail-bonds, and the
security which shall be required of the party who appeals from the de-
cision of a consul; and shall make all such further decrees and regula-
tions from to time, under the provisions of this title, as the exigency
may demand.]
[SEC. 4118. All such regulations, decrees, and orders shall be plainly
drawn up in writing, and submitted, as herein before provided for the
advice of the consuls, or as many of them as can be consulted without
prejudicial delay or inconvenience, and such consul shall signify his as-
sent or dissent in writing, with his name subscribed thereto. After
taking such advice, and considering the same, the minister in each of
those countries may, nevertheless, by causing the decree, order, or regu.
lation to be published with his signature thereto, and the opinions of
his advisers inscribed thereon, make it binding and obligatory, until
annulled or modified by Congress; and it shall take effect from the pub.
lication or any subsequent day thereto named in the act.
SEC. 4119. All such regulations, orders, and decrees shall, as speedily
as may be after publication, be transmitted by the ministers, with the
opinions of their advisers, as drawn up by them severally, to the Secre-
tary of State, to be laid before Congress for revision.
[SEC. 4120. It shall be the duty of the minister in each of those coun-
tries to establish a tariff of fees for judicial services, which shall be paid
by such parties, and to such persons, as the minister shall direct; and
the proceeds shall, as far as is necessary, be applied to defray the ex-
penses incident to the execution of this title; and regular accounts, both
of receipts and expenditures, shall be kept by the minister and con-
suls, and transmitted annually to the Secretary of State.]
SEC. 4121. The President, when provision is not otherwise made, is
authorized to allow, in the adjustment of the accounts of each of the
ministers or consuls, the actual expenses of the rent of suitable buildings,
or parts of buildings to be used as prisons for American convicts in those
countries, not to exceed in any case the rate of six hundred dollars a year;
and also the wages of the keepers of the same, and for the care of offend-
ers, not to exceed, in any case, the sum of eight hundred dollars per annuum,
But no more than one prison shall be hired in Japan, four in China, one
in Turkey, and one in Siam, at such port or ports as the minister, with
the sanction of the President, may designate, and the entire expense of
prison and prison keepers at the consulate of Bangkok, in Siam, shall
not exceed the sum of one thousand dollars a year.] The minister of the
United States in China shall, under direction of the Secretary of State, as
soon as possible after the passage of this act, purchase, or lease for a term of
not less than ten years, with privilege of renewal for ten years, more a
suitable building or buildings for court-house, with convenient rooms for
the offices of the clerk, marshal, janitors, and other attendants of the court,
and also a suitable, safe, and convenient room for a prison, which shall be
used for the confinement of persons undergoing sentence after conviction,
and of such accused persons as may be held awaiting trial, at each of the
following places in China, viz ; Canton, Shanghai, and Tien-Tsin The
minister of the United States in Japan shall under like directions purchase
or lease for a similar period and upon the same conditions, suitable buildings
JUDICIAL EXTRATERRITORIAL RIGHTS.
223
1
for such court-house and offices, and a suitable building for a prison at
Yokohama ; and the minister of the United States for the Ottoman Empire
shall purchase or lease for a similar period and under like conditions suita-
ble buildings for the same purposes at Constantinople, and a building for a
prison at Smyrna. The contracts in each case shall be submitted to the Sec-
retary of State before being concluded, and the necessary amount of money.
for these purposes is hereby appropriated out of any moneys in the Trea-
sury not otherwise appropriated.
SEC. 4122. The President is authorized to allow in the adjustment of
the accounts of [the] consuls-general or consuls within whose districts a prison
is situated, the necessary wages of the keepers of the prison and the neces-
sary expenses of the care of offenders not exceeding five thousand dollars a
year in all at Shanghai, or two thousand five hundred dollars a year at Yo-
kohama, or one thousand five hundred dollars a year at any other place [at
Shanghai the actual expense of the rent of a suitable building to be.
used as a prison for American convicts in China not to exceed one:
thousand five hundred dollars a year; and also the wages of the keepers..
of the same and for the care of offenders not to exceed five thousand
dollars a year; and to allow in the adjustment of the accounts of the
consuls at other ports in China the actual expense of the hire of con-
stables and the care of offenders, not to exceed in all five thousand dol-
lars a year].
[SEC. 4123. The President is hereby authorized to allow in the adjust-
ment of the accounts of the consul at Kanagawa, the actual expense of:
the rent of a suitable building to be used as a prison for American con-
victs in Japan, not to exceed seven hundred and fifty dollars a year; and
also the wages of the keepers of the same; and for the care of offenders,
not to exceed two thousand five hundred dollars a year; and to allow
in the adjustment of the accounts of the consuls at other ports in Japan
the actual expense of the hire of constables and the care of offenders,
not to exceed in all two thousand five hundred dollars a year.]
[SEC. 4124. The Secretary of State through the minister resident at
Japan, is authorized to rent, furnish, and keep suitable buildings, with.
grounds appurtenant in Yeddo, or such other place as he may designate,
for a court-house and jail, at an annual cost not exceeding five thousand
dollars: Provided, That the period for which the buildings shall be
rented shall be for two years, with renewals for two years, as the Secre-
tary of State. may determine.]
SEC. 4125. The provisions of this title, so far as the same relate to..
crimes and offenses committed by citizens of the United States, shall ex-
tend to Turkey, under the treaty with the Sublime Porte of May seventh,
eighteen hundred and thirty, and shall be executed in the Ottoman do-
minions in conformity with the provisions of the treaty, and of this title,.,
by [the minister and the consuls appointed to reside therein, who are
hereby ex-officio vested with the powers herein conferred upon the min-
isters and consuls] courts in China, for the purposes above expressed, so
far as regards the punishment of crime, and also for the exercise of
jurisdiction in civil cases wherein the same is permitted by the laws of
Turkey, or its usages in its intercourse with the Franks or other foreign
Christian nations.
SEC. 4126. The provisions of this title shall extend to Persia, in re-
spect to all suits and disputes which may arise between citizens of the
United States therein; and the minister and] consuls or agents who
may be appointed to reside in Persia are hereby invested, in relation to .
such suits and disputes, with such powers as are by this title conferred
upon the [ministers and consuls) courts in China. All suits and disputes .
224
JUDICIAL EXTRATERRITORIAL RIGHTS.
arising in Persia between Persian subjects and citizens of the United
States shall be carried before the Persian tribunal to which such mat-
ters are usually referred, at the place where a consul or agent of the
United States may reside, and shall be discusserl and decided accord-
ing to equity, in the presence of an employé of the consul or agent
of the United States; and it shall be the duty of the consular officer
to attend the trial in person, and see that justice is administered. All
suits and disputes occurring in Persia between the citizens of the United
States and the subjects of other foreign powers shall be tried and ad-
judicated by the intermediation of their respective ministers or con-
suls, in accordance with such regulations as shall be mutually agree
upon by the minister of the United States for the time being, and the
ministers of such foreign powers, respectively, which regulations shall
from time to time be submitted to the Secretary of State.
SEÇ. 4127. The provisions of this title, so far as the same are in con-
formity with the stipulations in the existing treaties between the United
States and Tripoli, Tunis, Morocco, and Muscat, respectively, shall ex-
tend to those countries, and shall be executed in conformity with the
provisions of the treaties, and of the provisions of this title, by the con-
suls appointed by the United States to reside, therein, who are hereby
ex-officio invested with the powers herein delegated to the ministers and
consuls of the United States appointed to reside in the countries named
in section. forty bundred and eighty-three, so far as the same can be ex-
ercised under the provisions of treaties between the United States and
the several countries mentioned in this section, and in accordance with
the usages of the countries in their intercourse with the Franks or other
foreign Christian nations.
(SEÇ. 4128. If at any time there be no minister in either of the coun-
tries herein before mentioned, the judicial duties which are imposed by
this title upon the minister shall devolve upon the Secretary of State,
who is authorized and required to discharge the same.]
SEC. 4129. The provisions of this title relating to the jurisdiction of
consular and diplomatic officers over civil and criminal cases in the
countries therein named, shall extend to any country of like character
with which the United States may hereafter enter into treaty relations.
SEC. 4130. The word "minister," when used in this title, shall be un-
derstood to mean the person invested with, and exercising, the princi-
pal diplomatic functions. The word couşul” 'shall be understood to
mean any person invested by the United States with, and exercising,
the functions of consul-general, vice-consul-general, deputy consul-general,
consul, or vice-consul, deputy consul, commercial agent, or vice-commercial
agent.
SEC. 9. The following provisions relating to limitations of actions
shall be in force as to all actions in the courts of the United States in
any and all the said places out of the territory or domain of the United
States :
Ņo action for the recovery of real property or for the recovery of the
possession thereof shall be maintained unless it appear that the plain-
tiff
, his ancestor, predecessor, or grantor was seized or possessed of the
premises in question within twenty years before the commencement of
such action, unless the person entitled to commence such action be, at
the tiine the title to the property shall first descend or accrue, either
within the age of twenty-one years, or insane, or imprisoned on a crim-
inal charge, or in execution upon conviction of a criminal offense for a
term less than life. In case of either such disability, such action may
0
JUDICIAL EXTRATERRITORIAL RIGHTS.
225
1
be commenced within ten years after the disability has ceased, but not
after that period.
The periods prescribed for the commencement of actions other than
for the recovery of real estate are as follows:
On a judgment of a court of the United States, including the courts
established hereby, or of any State or Territory, or on a sealed instru-
ment within ten years after the cause of action accrues.
On all other actions or contracts and on all actions for torts, except
as hereinafter provided, within six years after the cause of action occurs.
On actions against an officer of any of the said courts, in any of the
said places, for alleged liability by reason of the doing of any act in his
official capacity or the omission of an official duty; actions for the re-
covery of fines and penalties; actions for libel, slander, or false impris-
onment, seduction, or breach of promise of marriage, within one year
after the cause of action accrues.
But if the person entitled to bring any of the said actions other than
for the recovery of real estate be at the time the cause of action accrues
within the age of twenty-one years, or insane, or imprisoned on a crim-
inal charge, or in execution under the sentence of a criminal court for a
term less than his natural life, the time of such disability is not a part
of the time limited for the commencement of the action, except that the
period within which the action inust be brought cannot be extended
more than five years by any such disability, nor can it be extended in
any case longer than one year after the disability ceases.
In construing these provisions and all the provisions of this act, the
courts of the United States hereby authorized shall be governed by the
decisions and rulings of the Supreme Court of the United States when
there is found to be a conflict of opinion between that court and any
other courts, but this shall not be construed as preventing any such court
from enforcing any universally recognized cominercial custom and usage
at the port or place where such court is established, even though the
same may differ from a commercial usage prevailing in the United States.
SEC. 10. Whenever it shall be made to appear to any court of the
United States under this act that a similar court of any other power
within the limits of the country within which the court is held denies
to citizens of the United States the right to sue therein the citizens or
subjects of such power, it shall be the duty of the court to suspend ac-
tion in all suits pending therein in favor of the citizens or subjects of
such power against citizens of the United States until the disability of
citizens of the United States is removed. With this exception said
courts of the United States are open to citizens and subjects of all na-
tions to sue and prosecute to judgment suits against citizens of the
United States residing within the judicial district of the court in which
the suit is brought, subject to such rules and regulations regarding the
conduct of such suits and security for costs as may be made by authority
of law.
SEC. 11. No person shall be arrested or imprisoned on any civil pro-
cess issuing out of any court provided for or referred to in this act, or
on any execution issuing out of such court in any suit or proceeding in-
stituted for the recovery of any money due upon any judgment or de-
cree founded on contract or due on any contract express or implied, or
for the recovery of any damages for the non-performance of any con-
tract.
The provisions of section 7, relative to property which is exempted
from being taken on execution in China and Japan, are extended to all the
said places out of the territory and dominion of the United States.
S. Mis. 89_15
226
JUDICIAL EXTRATERRITORIAL RIGHTS.
SEC. 12. Any consular officer of the United States, under directions
of the Secretary of State, may assist in establishing and maintaining
inunicipal governments in settlements occupied by Americans, Europ-
eans, and other foreigners in any such place out of the territory and
dominion of the United States. Citizeus of the United States residing
in such municipalities, either already organized or hereafter to be, are
and shall continue to be subject to such regulations as fully as if the
same were imposed by due authority of law within the domains of the
United States. The consular courts of tie United States shall take
jurisdiction of and enforce the regulations issued by such municipal
bodies, of which a consular officer of the Cuiel States is a member,
and render judgment for fines and penalties imposed by the same, and
cause such judgments to be enforced, and make such disposition of such
fines and penalties when collected as may be provided in the municipal
regulations.
SEC. 13. Whenever, by custom, usage, capitnlation, treaty, or other-
wise, a consular officer of the United States has the right to sit in or be
present at a sitting of a mixed court which takes jurisdiction of the
rights of citizens of the United States, such officers are hereby em-
powered to be present at such sittings, and to do or perform such official
acts with respect thereto as may be necessary or proper under such
custom, usage, capitulation, treaty, or otherwise, under such regulations
as the Secretary of State inay from time to time prescribe.
SEC. 14. Whenever the evidence of a citizen of the United States
resident or being within any of the consular districts of the United
States referred to in this act shall be desired to be used before the con-
sular or other court of some other power within the same district, the
consular officer of the United States may, on request of the proper court,
issue a writ of subpæna, and, if desired, a writ of subpona duces tecum,
requiring bim to appear and testify before the said consular or other
court; and on the failure of the witness so to appear, the consular off-
cer may cause the offender to be arrested and may punish him for con-
tempt as fully as he might do if the witness had been summoned to appear
before the consular court of the United States and had failed to do so.
The provisions of this section shall not be applied in favor of consular
courts of other powers which deny similar favors to the consular and
other courts of the United States.
SEC. 15. Depositions of citizens of the United States, or of other per-
sons submitting voluntarily to the jurisdiction, to be used in any civil
cause pending in any court hereby established, may be taken before such
court, or the clerk thereof, or before any judge or consular officer or
the clerk of any court in the country in which the cause is pending.
The proceedings in taking and returning depositions shall be conducted
according to the provisions of the Revised Statutes, so far as applicable
thereto, and the said code to be prepared by the Secretary of State
and thé Attorney-General, and, in China and Japan, the rules wbich
may be prescribed therefor by the respective supreme courts in those
countries.
SEC. 16. The following provisions relating to fraudulent conveyances,
and to assignments, and to chattel mortgages, shall be in force as to
citizens of the United States in all the said places out of the territory
and dominion of the United States, and in all the courts of the United
States therein :
All deeds, conveyances, transfers, or assignments, verbal or written,
of goods, chattels, or things in action, made in trust for the use of the
JUDICIAL EXTRATERRITORIAL RIGHTS.
227
person or persons making the same, shall be void as against creditors
existing or subsequent.
Every agreement that by its terms is not to be performed within one
year from the making thereof, and every special promise to answer for
the debt, default, or miscarriage of another, shall be void unless such
agreement, or some note or memorandum thereof expressing the consider-
ation, be in writing and subscribed by the party to be charged thereby.
Every contract for the sale of any goods, chattels, or things in action
for the price of fifty dollars or more shall be void unless a note or
memorandum of such contract be made in writing and be subscribed by
the parties to be charged thereby, or unless the buyer shall accept and
receive part of said goods, or the evidences, or some of them, of such
things in action, or unless the buyer shall at the time pay some part
of the purchase-money.
Every assignment of goods and chattels by way of mortgage or se-
curity, or upon any condition whatever, shall be presumed to be frand-
ulent and void, as against the creditors of the person making such
assigument, or subsequent purchasers in good faith; unless the same be
accompanied by immediate delivery and be followed by an actual and
continued change of possession, or unless the mortgage, or a true copy
thereof, be filed with the clerk of the consular court of the district in
which the property is situated; and the clerks of said courts are hereby
réquired to receive such papers when offered for filing, and to keep
them where they can be seen and examined, and to keep a register
wherein shall be noted all such mortgages or copies filed and the date
of each filing.
Every conveyance of every estate or interest in lands, or the rents and
profits of land, made or created with intent to defraud prior or subse-
quent purchasers for a valuable consideration, as against such pur-
chasers, shall be void.
Every contract for leasing real estate for a longer period than one
year, or for the sale of any lands or interests in land, shall be void un-
less the contract, or some note or meiaorandum thereof expressing the
consideration, shall be in writing and be subscribed by the party by
whom the lease or sale is to be made.
Every instrument required by any of the provisions of this section to
be subscribed by any party may be subscribed by the lawful agent of
such party.
SEO. 17. The following provisions in regard to marriages and divorces
and the rights of married women shall be in force as to citizens of the
United States in all the said places out of the territory and dominion of
the United States:
Marriages between parents and children, and grandparents and grand-
children of every degree, ascending and descending, and between broth-
ers and sisters of the balf as well as the whole blood, are declared to be
incestuous and void, whether the children and relatives are legitimate
or illegitimate.
Marriages solemnized before a consular officer according to the pro-
visions of section 4082 of the Revised Statutes may be solemnized either
by a minister of the gospel or by a consular officer.
The
said district courts of the United States shall have jurisdiction
to pronounce sentences of nullity of marriages contracted within their
respective judicial districts when it appears that the former husband or
wife of one of the parties was living at the time of the marriage, and
that the marriage with such former husband or wife was then in force;
and to decree a divorce and a dissolution of a marriage for the cause of
228
JUDICIAL EXTRATERRITORIAL RIGHTS.
adultery committed by either husband or wife within the judicial dis-
trict of the court; and a separation from bed and board forever, or for
a limited time, for the following causes happening in such judicial dis-
trict: 1st. Cruel and inhuman treatment of the wife by the husband;
2d. Abandonment of the wife by the husband, and his refusal or neglect
to provide for her; and the court may in any of said cases make such
decree for thė suitable support and maintenance of the wife and chil-
dren, or any part of them, by the husband, as may appear just and proper.
The real and personal property of any married woman, a citizen of
the United States, within any of the said places out of the territory and
dominion of the United States, which she shall own at the time of a mar-
riage in such place, and the rents, issues, and profits thereof, shall not
be subject to the disposal of her husband, nor liable for his debts, and
shall continue her sole and separate property as if she were a single
female.
When a wife separated or divorced from her husband has a right to
the custody of her minor children, and is deprived thereof by her hus-
band, she shall be entitled, on application to the district court, to have
a writ of habeas corpus for the production of the child or children before
the court, and on the return of the writ the court may make such order
thereon respecting the custody of the child or children as may be just.
SEC. 18. The following provisions respecting the probate of wills, set-
tlement of estates of deceased persons, succession to property, guardians
of minors, and other similar matters are to be in force, in all said places
out of the territory and dominion of the United States, as to citizens of
the United States and their properties and estates:
All such citizens, including married women, not being idiots or per-
sous of unsound mind, or infants, may devise real estate and bequeath
property by will, made in writing, subscribed and published by the tes-
tator as his last will and testament, in the presence of at least one per-
Son, who, in the testator's presence and at his request, affixes his name
thereto as a subscribing witness.
Power is hereby conferred upon the Secretary of State and the Attor-
ney-General to frame, as part of the code hereinafter provided for, full
provisions respecting the mode of proof of wills, all necessary proceed-
ings in the settlement and distribution of the estates, both of testates
and intestates, and the care and custody of the estates of minors during
proceedings in probate.
The consular courts are hereby made courts of probate with respect
to the property of citizens of the United States, dying in their respect-
ive consular districts, with full power, in the manner which may be
provided by such code, to cause probate of wills, to issue letters testa-
mentary, or letters of administration, to cause the estates of deceased
persons to be settled, and after payment of just debts and expenses, to
distribute the surplus, to appoint guardians of minor children, to fix the
amount of security to be required of executors and guardians, to pass
upon their accounts, and generally to do any and all acts usually done
by a court of probate in such cases.
Under such rules regulating appeals as may be made by the Supreme
Court for China and Japan appeals may be taken from consular courts
to the proper district court from decrees, approving or rejecting a will,
or on any interlocutory proceeding affecting private rights to the ex-
tent of five hundred dollars, or from a decree of distribution when any
one distributive share amounts to five hundred dollars. The district
court may, when justice requires it, order proceedings in the consular
court stayed, pending proceedings in the district court, and on render-
JUDICIAL EXTRATERRITORIAL RIGHTS.
229
ing judgment shall remand the case to the consular court with such or-
der as shall be necessary to carry into effect the decree or judgment of
the appellate court.
In case it becomes necessary to sell real estate or an interest therein
in order to pay the just debts, or settle the estate of a deceased person,
the probate court may order the sale, taking such steps with reference
thereto as may be prescribed in such code.
The distribution of such surplus estate shall be made as follows: One-
third part thereof to the widow and all the residue by equal portions among
the children, and such persons as shall legally represent such childreu,
if any of them have died before the deceased. If there be no children,
nor any legal representatives of them, one moiety of the whole surplus
shall be allotted to the widow and the other moiety to the next of kin
in equal parts.
If the deceased leare a widow and no descendant, parent, brother or
sister, the whole surplus shall be allotted to the widow, and if he leave
no widow the whole surplus shall be distributed among the children in
equal parts, and the representatives of any child that may have died
before the deceased shall take the share of such child.
SEC. 19. Real estate owned by citizens of the United States in such
places out of the territory and dominion of the United States, who shall
die without devising the same shall descend in manner following: 1, to
his lineal descendants; 2, to his father; 3, to his mother; 4, to his col-
lateral heirs.
If the intestate shall have several descendants in the direct line of
lineal descent, and all of equal degree of consanguinity to such intes-
tate, the inheritance shall descend to such persons in equal parts, how-
ever remote froin the intestate the common degree of consanguinity
may be, and if any of such persons shall have died before the intestate,
leaving children, such children shall take his or her share in equal parts.
But the consular court, as a court of probate, way, on petition of any
· party interested, order any or all such real estate to be sold for the
purpose of distribution, and in that event the proceeds shall be distrib-
uted in the same way and to the same persons to whom the real estate
would have fallen by descent.
SEC. 20. The following provisions as to partnerships shall be in force
in all the said places out of the territory and dominion of the United
States, so far as concerns the citizens of the United States, and the
consular and other said courts hereby provided for :
A copartnership, of which a citizen of the United States is a general
partner, may sue and be sued in said courts, and proceeding bad in any
such suit as if all the parties were members, except that execution shall
not issue against the separate property of a member who is not a citi-
zen of the United States.
Persons desiring to form a partnership in any consular district for
the transaction of business, with a limited liability, may do so under
rules and regulatious to be made by the Secretary of State. Power is
hereby conferred upon the Secretary to make and publish and from
time to time to change such rules and regulations, provided that none
shall be made which do not provide for making public in the consular
district where the business is to be transacted, a certificate to be signed
by all the proposed partners, wherein shall be stated the names of all
the partners, the amount of the cash capital contributed by each, the
nature of the business, and the duration of the partnership. Any false
statement in such certificate shall cause general liability of each and
every partner for all the debts of the partnership.
230
JUDICIAL EXTRATERRITORIAL RIGHTS.
SEC. 21. Every male citizen of the United States resident in China,
Japan, the Ottoman dominions, or any other places covered by the
provisions of this act, of the age of twenty one and upwards, being
able to speak and read English, not having been convicted of any infa-
mous crime, shall be qualified to serve ou a jury. All persons so quali-
fied shall be liable, except persons in the diplomatic service, officers
and employees of the courts and prisons, officers in the Army or Navy,
on duty, clergymen and ministers in the actual discharge of professional
duties, attorneys in actual practice, and persons disabled by mental or
bodily infirmity.
On or before the second Monday of January in each year a list shall
be made out of persons residing in the district and qualified to serve as
jurors. This list shall be conspicuously posted in the court room and
consulate until the 31st of the same month. As soon thereafter as it
can conveniently be done, the consul shall in open court revise and
settle the list for the current year, and until the next list shall be settled.
Whenerer a jury is required the court shall summon at least fif-
teen persons from the said list. Any one failing to appear when so
summoned shall be liable to such fine, not exceeding fifty dollars, as
the court may see fit to impose, to be collected in such inanner as the
court may direct.
A jury shall consist of five jurors, and shall be required to give a
unanimous verdict. No person interested in the result shall sit as juror
in a civil suit. In cases tried before a jury the rule of challenge shall
be as follows: Challenges for cause shall be unlimited in civil and crim-
inal cases, and all challenges for cause shall be tried by the court.
In civil actions there shall be no peremptory challenges. In criminal
prosecutions peremptors challenges shall be allowed. If the case is
capital the defendant nine and the government three, to be exercised
alternately, the defendant challenging three and the prosecution one.
In all other felonies the defendant shall have five peremptory chal-
lenges and the governinent two, to be made in the same manner.
The parties to a civil action in which a jury is allowed may waive the
same and submit•the cause to trial by the court, but if one of such
parties, after a waiver by the other, shall demand a jury, he inay have
à jury trial but must deposit with the clerk at the opening of court each
day a sum sufficient to cover the per diem expenses of the jury for that day.
If a jury shall be had in the absence of such waiver, by either party,
then the plaintiff in the action shall make such per diem deposit for each
day. The jury fees shall be taxed as costs in favor of the prevailing
party in the action, and be recoverable as part of the judgment from the
party against whom a final judgment shall be rendered.
Jurors shall receive for their subsistence, while in attendance on court,
three dollars each per day, and shall also be entitled to traveling ex-
penses at the rate of eight cents per mile froin their homes to the place
of holding court, and from such place to their homes, respectively.
The clerk shall pay the jurors fees and mileage from a roll which shall
be provided by him for each term of the district court, and be known as
o the court pay-roll for the term of 18—," out of any funds in his hands
from which court expenses are payable, as hereafter provided; each
juror on receiving his per diem and mileage fees shall sign his proper
signature to such roll, and the court pay-roll, thus signed and approved
by the signature of the district judge, shall be the clerk's sufficient
vouchér.
SEC. 22. The following provisions as to punishments and penalties
for crimes and offences committed by citizens of the United States,
JUDICIAL EXTRATERRITORIAL RIGHTS.
231
shall be in force in all of said places out of the territory and dominion
of the United States.
In all cases except as Lerein otherwise provided the punishment of
crimes and offences shall be by fine or imprisoument or both.
Every person convicted of murder shall be condemned and sentenced
to suffer death.
Every person convicted of manslaughter or of assault with intent to
kill shall be sentenced to suffer imprisonment for not less than two or
more than eight years.
Every person convicted of rape, or of being accessory thereto be-
fore the fact, shall be sentenced to suffer imprisonment for not less than
ten or more than twenty years.
Every person convicted of assault with intent to commit a rape shall
be sentenced to suffer imprisonment for not less than one or more than
five years.
Every person convicted of burning or setting fire to, with intent to
burn, any dwelling house or any other house, barn, or stable adjoining
thereto and belonging to such dwelling, or any store house, warehouse,
or shop, at the time used and occupied, or any church, meeting house,
chapel, school-house, public library, pablic hall, theatre, or any ship or
vessel in any harbor, shall be sentenced to imprisonment for not less
than one or inore than ten years.
Every person convicted of burglary, or of being accessory to, before
the fact, or of robbery, or of being accessory to, before the fact, shall be
sentenced to suffer imprisonment for not less than three or more than
seven years.
Every person convicted of mayhem or bigamy, or as being accessory
before the fact to either of said crimes, shall be sentenced to suffer im-
prisonment for not less than two or more than seven years.
Every person convicted of perjury or subornation of perjury shall be
sentenced to suffer imprisonment for not less than two or more than ten
years.
Every person convicted of having within any of the consular judicial
districts falsely forged and counterfeited any gold or silver coin which
now is, or shall hereafter be, passing or in circulation within China or
Japan, or of having falsely uttered, paid, or tenderest in payment any
such counterfeit or forged coin, knowing the same to be false and coun-
terfeit; or of having aided, abetted, or commanded the perpetration of
either of the said offences; or of having falsely made, altered, forged, or
counterfeited, or caused or procured to be falsely made, altered, forged,
or counterfeited, or having willingly aided or assisted in falsely mak-
ing, altering, forging, or counterfeiting any paper, writing, or printed
paper to the prejudice of the right of any other person, body politic or
corporate, of voluntary association, with intent to defraud such person,
body politic or corporate, or voluntary association, or of having passed,
uttered, or published, or attempted to pass, utter, or publish as true,
any such falsely made, altered, forged, or counterfeited paper, writing,
or printed paper, to the prejudice of the right of any other person, body
politic or corporate, or voluntary association, knowing the same to be
falsely made, altered, forged, or counterfeited, with intent to defraud
such person, body politic or corporate, or voluntary association, shall be
sentenced to suffer imprisonment and labor for not less than one or more
than seven years.
Every person convicted of lậrceny when the value of the property
stolen shall be fifty dollars or more shall be sentenced to suffer impris-
onment for not less than one or more than three years.
232
JUDICIAL EXTRATERRITORIAL RIGHTS.
Every person convicted of larceny where the value of the property
stolen shall be less than fifty dollars shall be deemed guilty of a mis-
demeanor and shall be punished by a fine of not more than fifty dollars,
or by imprisonment for not more than three months.
Every person who shall be convicted of receiving or buying stolen
goods or money, knowing the same to have been stolen, with intent to
defraud the owners thereof, if the value of the property shall be fifty
dollars or upwards, shall be deemed guilty of a misdemeanor and be
punished by imprisonment for not more than two years or less than
six months.
Every person convicted of obtaining by false pretenses any goods or
chąttels, money, bank-note, promissory note, or any other instrument
in writing for the payment or delivery of money or other valuable
thing, or of keeping a faro bank or gaming table, shall be sentenced to
suffer imprisonment for not less than one or more than five years.
Every person convicted of assault or assault and battery with intent
to inflict a great bodily injury shall be sentenced to suffer imprisonment
for not less than one or more than three years.
Every person convicted of assault or of assault and battery shall be
punished by a fine of not less than five or more than fifty dollars, or
by imprisonment for pot more than thirty days.
Every person couvicted by a cousular court of any offence or misde-
meanor, not enumerated in this act, and for which punishment is not
provided herein, shall be punished by a fine not exceeding two hundred
dollars or by imprisonment not longer than six months.
In all cases of conviction by a consular court for a breach of any muni-
cipal, city, or town ordinance the punishment shall be such as may be
provided for the offence by such municipal, city, or town ordinances,
but the punishment imposed in any such case shall not exceed a fine of
fifty dollars or imprisonment for sixty days.
When the sentence or punishment is in whole or in part by fine the
court may in its discretion add to the sentence that the person so fined
shall stand committed until the fine is paid, but such commitment shall
in no case exceed thirty days.
In all cases of conviction for crime, where the punishment provided by
this sectiou is by imprisonment for one year or more, the person sen-
tenced may, in the discretion of the court, be condemned to labor at
such work, if any, as may be provided for prisoners in the prison or
place in which the sentence is to be carried out.
SEC. 23. The following provisions relating to clerks' fees, marshals '
fees, and fees of interpreters shall apply to all of said places out of the
territory and dominion of the United States:
The clerk shall tax and collect as a docket fee
1. In all cases where the amount in controversy is not more than $500.
$5 00
2. Where the amount is over $500 and not more than $1,000
3. Where the amount is over $1,000..
4. Where no specific damages are sought the fee shall be graduated according to
the nature of the case, not less thau five dollars or more than fifteen dollars, to be de-
termined by the court.
The clerks' fees shall be, for-
5. Issuing all writs, warrants, or other compulsory process...
6. Docketing every suit commenced.
1 00
7. Issuing executions..
8. Issuing surmons, subpænas, and notices
9. All records and transcripts in appeals or for other purposes, for each hundred
words
10 00
15 00
$1 50
50
25
15
i
JUDICIAL EXTRATERRITORIAL RIGHTS.
233
10. Seal and certificate to such record or transcript..
$1 00
11. Drawing any notice, paper, order, or process, on the request of any party to
a suit or oue interested thereiu, and which is not otherwise provided for. 200
If such notice, paper, order, or process exceed two hundred words, for each
additional hundred words..
1 00
12. Filiug each paper upon the return of the marshal and all other papers filed
in court..
10
The marshals fees shall be, for-
13. Issuing any writ, warrant, or other compulsory process, for each person in-
cluded iu said writ or process
$0 25
14. Serving summons
25
15. Each bail bond.
1 00
16. Subpænas for each witness summoned.
25
17. Levying execution
1 00
18. Advertising property for sale
2 00
19. Releasing property under execution by order of plaintiff'.
3 00
20. Selling property under execution, when the amount collected does not ex-
ceed $1,000, tive per cent. If over one and not exceerling tive thousand
dollars, three per cent. If over five thousanı dollars, two per cent.
21. Traveling fees in serving all process, per mile..
10
22. Serving any notice not herein provided for, exclusive of mileage
50
For extraordinary services, performed by the marshal or any deputy
or bailiff appointed by order of the court, a reasonable allowance may
be made by the presiding judge, which shall be paid by the clerk out of
the fund for court expeuses.
The interpreters' fees shall be for
23. Each day's attendance on court
$5 00
24. Making special translatious....
3 00
25. If more than two hundred words, for each additional linndred words
1 00
The witness fees shall be for-
26. Each däy's attendance at court..
$1 50
27. Each mile traveled in going to and returning from court
08
Appeal fees shall be for
28. Docketing case in the district court on appeal
$5 00
29. Entering judgment on appeal in the district court
5 00
30. Docketing case ou appeal in the supreme court
10 00
31. Entering final judgment in the supreme court.
5 00
32. Recording opinion of the court in either the district or supreme court, for
the first two hundred words.
3 00
33. Each additional hundred words
1 00
34 Any intermediate or interlocutory order of the district or 'supreme court in
appeal cases.
1 00
35. Mandate or order of the appeal court to the court from wbich the appeal
was taken...
2 00
The fees prescribed for marshals and interpreters shall be retained
by them, respectively, as official emoluments.
Fee numbered 11 in this schedule shall be the personal emolument of
the clerk. All other docket, court, and clerk fees shall be paid to the
clerk, and by him safely kept as a part of the court expense fund, from
which the sáid clerk is authorized to pay any bills or accounts, fees, or
mileage which shall be presented to him, having indorsed thereon the
approval in writiug of a district judge.
All fines and penalties imposed by the provisions of this act, except
those imposed for a violation of municipal regulations, shall be paid to the
clerk by whomsoever collected, for the use of the United States, and
the proceeds of the fees, fines, and penalties thus collected by or paid
to the clerk shall constitute the expense fund of the court, and the clerk
shall on or before the first day of February of each year transmit to the
Secretary of State a detailed account of all moneys received and all dis-
S. Mis. 89-16
234
JUDICIAL EXTRATERRITORIAL RIGHTS.
bursements made by him, which account shall, before transmission, be
-submitted to the district judge, who, if he finds it correct, shall endorse
his approval thereof on the account; any surplus in the hands of the
clerk shall be held by him subject to the order of the Secretary of State
on behalf of the United States, and if the moneys thus received in any
one year shall be founil insufficient to meet the expenses of the court,
the deficiency shall be paid from the contingent fund for diplomatic and
consular expenses, on the order and by the
direction of the Secretary of
State; and in case there shall not be in the hands of the clerk sufficient
money for that purpose, he shall be authorized, on the approval of the
district judge at any time during the year in which such deficiency shall
occur, to draw a bill of exchange on the Secretary of State for the nec-
essary amount to meet such deficiency, which shall be paid by the Sec-
retary of State out of the said contingent fund for diplomatic and con-
sular expenses.
SEC. 24. The Secretary of State and the Attorney-General shall, as
soon as possible after the passage of this act, prepare a code of prac-
tice for the use of the said courts and of parties practicing therein. The
said code shall provide for proceedings, which shall be simple and direct,
so as to enable all persons to obtain speedy justice from said courts. It
shall contain suitable forms for the principal business; but no advan-
tage shall be taken in said courts of defects in form. Free liberty of
amendment shall be allowed, to the end that justice may not be denied
for defects which do not go to the merits.
The said code shall also contain suitable directions for proceedings in
probate, insolvency, and for the formation of limited partnerships, and
for all other matters herein before provided for, including regulations
which may be found necessary under the power conferred by section
4086 of the Revised Statutes, as hereby amended. The said code sball
first be approved by the President, and shall then take effect in six
months thereafter. It may be changed, amended, or modified from time
to time by the Secretary of State and the Attorney-General, with the
approval of the President.
ŠEC. 25. Whenever in this act a duty is imposed upon a consul, the
duty, unless otherwise specially provided, shall be performed by the
principal consular officer at the port or place where the consulate is situ-
ated, and in his absence by the vice-consul-general or vice-consul; and
in his absence by the deputy consul, if there shall be a deputy consul,
or, if not, by such person as the principal diplomatic representative of
the United States in the country may authorize in writing.
Nothing in this act contained shall be construed to affect in any way the
powers conferred upon consuls in other countries than those referred to
in this act by sections 1709, 1710, and 1711 of the Revised Statutes, or
the powers conferred upon any and all consular officers by sections 4079,
4080, and 4081 of the Rerised Statutes.
SEC. 26. As to directions to the Secretary of State and the Attorney.
General to prepare a code, and the authority conferred upon the Presi
dent to approve the same, contained iu section 24, and as to tlie provisions
for the purchase or leasing of buildings, coutained in section 4121 of
the Revised Statutes as hereby amended, this act shall take effect im-
mediately. As to all other provisions it shall take effect in six months
from the approval of such code by the President.
n
us.
Wat Penfield
De groot
VITED STATES OF AMERIC
REPORT
ON
EXTRATERRITORIAL CRIME
AND
THE CUTTING CASE.
OF
PARTMENT
E PLURIBUS UNUL
STATE
*
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1887
E. C.-
I.
.
DEPARTMENT OF STATE,
WASHINGTON.
SIR:
In accordance with your request, I have the honor to report
to you the results of an examination of the jurisdictional
claim made by the Mexican Government in the case of A. K.
Cutting, a citizen of the United States, arrested at Paso del
Norte, Mexico, on the 23d of June, 1886, on a charge of
having published in El Paso, in the State of Texas, a libel
againsta Mexican.
On the 19th of July, 1886, there was sent to Mr. Jackson,
Minister of the United States at the City of Mexico, the
following telegram:
You are instructed to demand of the Mexican Government the instant release of A. K.
Cutting, a citizen of the United States, now unlawfully imprisoned at Paso del Norte.
BAYARD.
The facts upon which this demand was based may briefly
be summarized :
On the ist of July, 1886, Mr. Brigham, Consul of the
United States at Paso del Norte, Mexico, wrote to the Depart-
ment of State at Washington that A. K. Cutting, a citizen
of the United States, had been arrested in Paso del Norte
on the 23d of the preceding month by the direction of the
judge of a local court for the publication in Texas of a libel
against a Mexican citizen. When arrested Mr. Cutting had,
it was stated, been about eighteen months a resident of Paso
del Norte, engaged in editing a newspaper called “ El Centi-
nela,” in a recent number of which he had reflected upon the
character and questioned the good faith of one Emigdio Medina,
4
1
a Mexican, who proposed to start a rival newspaper in the same
town. For this publication Mr. Cutting was, at the instance
of Medina, arrested, brought before a local court, and required
to sign a "reconciliation,” which is in the nature of a com-
promise or settlement between the parties, in consideration of
which the party who feels himself aggrieved abandons penal
proceedings.
What occurred after the “reconciliation" may be related
in Mr. Brigham's own words:
L'nder the law here, when the parties agree to and sign a “reconciliatiòn," the case is
dismissed, which was done in this instance, Mr. Cutting being required by the court to
publish it (the “reconciliation "] in his paper, which he did.
On the 18th day of June Mr. Cutting proceeded across the Rio Grande River to the
United States, to El Paso, Texas, and published a card in the El Paso Herald, in which he
reiterated his former charges, and made soine others, branding Medina's conduct as con-
temptible and cowardly, &c.
When Mr. Cutting returned to Paso del Norte he was again arrested, presumably at
the instance of Medina, and taken before the judge of the second court. Before this court
Mr. Cutting was refused counsel and an interpreter, both of which he requested, and with
closed doors, no one being present but the judge, the court interpreter and the accused, the
so-called examination of the case was proceeded with, which resulted in the committing of
Mr. Cutting to jail. (Mr. Brigham to Mr. Porter, July 1, 1886; Ex. Doc. (H. R.) 371, 49th
Congress, Ist Sess.)
Mr. Cutting at once appealed to the United States Consul
for protection, stating that he had been cast into jail
“for an alleged offense committed in Texas.” On the receipt of this communication, continued
Mr. Brigham, I proceeded to the office of the official interpreter of the court to ascertain
the exact charges against Mr. Cutting, and was informed that he was arrested for the pub-
lication in the El Paso (Texas) Herald; that he was examined upon this charge alone,
and committed to jail on the same.
Mr. Cutting still (July 1) languishes in jail, having been thus .confined for more than
one week.
Bail was refused him, which he was prepared to give in any reasonable
* · *
amount.
Accompanying this despatch of Consul Brigham, which was
received at the Department of State on the 17th of July,
were affidavits of the consul and other persons substantiating
his statements. Among these affidavits is one of A. N.
Daguerre, a Mexican, who accompanied Mr. Brigham's clerk
to the court-room on the 24th of June, the day following the
arrest, in order to inquire as to the progress of the case, and
who deposed that the judge stated, in reply to a question of
the clerk, that Mr. Cutting was held for the publication in Texas.
In addition to showing that Mr. Cutting was held for the
5
publication in Texas, the affidavits accompanying Mr. Brig-
ham's despatch alleged great cruelty in the manner of the
prisoner's confinement; that the place of his incarceration
was “loathsome and filthy;" that he was “locked up with
eight or ten other prisoners * * in jail for various offenses
** in one room, 18 by 40 feet, with only one door, which
is locked at night, making it a close room in every respect, ,
there being no other means of ventilation,” and compelled
to endure other grievous hardships.
On the 16th of July a despatch was received at this
Department from Mr. Jackson enclosing correspondence with
Mr. Mariscal, the Mexican Minister for Foreign Affairs. This
correspondence disclosed the fact that Mr. Jackson had, on
the 6th of July, called Mr. Mariscal's attention to the circum-
stances of Mr. Cutting's imprisonment, the nature of the
charge—"an offense committed upon the soil of Texas,"—the
manner of his confinement, and the fact that he had offered
ample bail, which was refused. Mr. Jackson stated, however,
that his purpose was not to discuss the question of jurisdiction,
which had been referred to the Department of State at Wash-
ington, but to direct the attention of the Minister for Foreign
Affairs
to the fact that an American citizen, of respectable character, charged with no serious crime,
but with acts whích, even if he be guilty, constitute the simplest of misdemeanors, is now
undergoing a very severe punishment before conviction, and after offering the best of security
for his appearance to stand his trial; and that his health, and even his life, are placed and
held in jeopardy, despite of the efforts of an official representative of his country in his
behalf. But for this serious aspect of the case, said Mr. Jackson, I should have awaited
instructions from my own Government before approaching your excellency on the subject,
and do so now only for the purpose of praying that proper relief may be extended to Mr.
Cutting at the earliest moment and through the speediest practicable channel. (H. Ex. Doc.,
371, 49th Cong. Ist Sess., p. 12.)
To this note Mr. Mariscal' replied, on the 7th of July,
saying:
By advice of the President I to-day address the Governor of the State of Chihuahua,
recommending him to see that prompt and due justice be administered to the alleviation of
the rude situation in which Mr. Cutting is found, as well as all else permitted by the
· laws. (Ibid., p. 12.)
On the 17th of July, when all the facts above detailed were
before the Department of State, a telegram was received
from Mr. Brigham, saying that Mr. Cutting was still in prison,
.
..6
and that nothing had been done by the local authorities for
his relief. · (Ibid., p. 13.)
The release of Mr. Cutting was then demanded, as ap-
pears by the telegram of July 19, above quoted.
On the 20th of July, the day after the date of the demand,
Mr. Bayard sent to Mr. Jackson a full statement of the
grounds thereof. After summarizing the facts, Mr. Bayard
declared that
the proposition that Mexico can take jurisdiction of its author on account of its publication
in Texas is wholly inadmissible, and is peremptorily denied by this Government. It is
equivalent to asserting that Mexico can take jurisdiction over the authors of the various criti-
cisms of Mexican business operations which appear in the newspapers of the United States.
If Mr. Cutting can be tried and imprisoned in Mexico for publishing in the United States a
criticism on a Mexican business transaction in which he was concerned, there is not an editor
or publisher of a newspaper in the United States who could not, were he found in Mexico,
be subjected to like indignities and injuries on the same ground. To an assumption of such
jurisdiction by Mexico neither the Government of the United States nor the governments of our
several States will submit. They will each mete out due justice to all offenses committed in
their respective jurisdictions. They will not permit that this prerogative shall in any degree
be usurped by Mexico, nor, aside from the fact of the exclusiveness of their jurisdiction over
acts done within their own boundaries, will they permit a citizen of the United States to be
called to account by Mexico for acts done by him within the boundaries of the United States.
On this ground, therefore, you will demand Mr. Cutting's release.
But there is another ground on which this demand may with equal positiveness be
based. By the law of nations no punishment can be inflicted by a sovereign on citizens of
other countries unless in conformity with those sanctions of justice which all civilized nations
hold in common.
Among these sanctions are the right of having the facts on which the charge of guilt
was made examined by an impartial court, the explanation to the accused of these facts, the
opportunity granted to him of counsel, such delay as is necessary to prepare his case, permis-
sion in all cases not capital to go at large on bail till trial, the due production under oath of
all evidence prejudicing the accused, giving him the right to cross-examination, the right to
produce his own evidence in exculpation, release even from temporary imprisonment in all
cases where the charge is simply one of threatened breach of the peace, and where due security
to keep the peace is tendered. All these sanctions were violated in the present case. Mr.
Cutting was summarily imprisoned by a tribunal whose partiality and incompetency were alike
shown by its proceedings. He was refused counsel; he was refused an interpreter to explain
to him the nature of the charges brought against him; if there was evidence against him it
was not produced under oath, with an opportunity given him for cross-examination; bail was
refused to him; and after trial, if it can be called such, violating, in its way, the fundamental
sancțions of civilized justice, he was cast into a "loathsome and filthy" cell, where, according
to one of the affidavits attached to Mr. Brigham's report," there are from six to eight other
prisoners, and when the door is locked there are no other means of ventilation" an adobe
house, almost air-tight, with a “dirt floor;" he was allowed about"8172 cents American money
for his subsistence;' he was “not furnished with any bedding, not even a blanket.” In this
wretched cell, subjected to pains and deprivations which no civilized government should
permit to be inflicted on those detained in its prisons, he still languishes, and this for an act
committed in the United States, and in itself not subject to prosecution in any humane system
of jurisprudence, and after a trial violating the chief sanctions of criminal procedure. (Ibid.,
p. 13.)
7
Under date of the 27th of July Mr. Bayard sent to Mr.
Jackson another communication, from which may be quoted
the following pertinent passages:
On Saturday last, the 24th instant, I was called upon by Mr. Romero, the minister
from Mexico at this capital, in relation to the case referred to.
Mr. Romero produced to me the Mexican laws, article 186, whereliy jurisdiction is
assumed by Mexico over crimes committed against Mexicans within the United States or any
other foreign country; and under this he maintained the publication of a libel in Texas was
made cognizable and punishable in Mexico. And thus Mr. Cutting was assumed to be
properly held.
This claim of jurisdiction and lawful control by Mexico was peremptorily and positively
denied by me, and the statement enunciated that the United States would not assent to or
permit the existence of such extraterritorial force to be given to Mexican law, nor their own
jurisdiction to be so usurped, nor their own local justice to be so vicariously executed by a for-
cign government.
In the absence of any treaty of amity between the United States and Mexico providing
for the trial of the citizens of the two countries respectively, the rules of international law
would forbid the assumption of such power by Mexico as is contained in the Penal Code,
article 186, above cited. The existence of such power was and is denied by the United States.
Mr. Romero informed me that the local or state jurisdiction over Cutting's case did not
allow interference by the national Government of Mexico in the matter, and that it was this
conflict that had induced delay in responding to the demand of this Government for Mr. Cut-
ting's release. (Ibid., p. 17.)
On-the ad of August the President of the United States,
in response to a resolution of the Senate, transmitted to that
body a report from the Secretary of State, in which the juris-
dictional issue was again defined, as follows:
À copy of article 186 of the Mexican code, which was handed to the undersigned by
Mr. Romero in support of the claim of Mexico to take cognizance of crimes of which Mexi-
cans were the subject in foreign countries, is herewith appended.
This conflict of laws is even more profound than the literal difference of corresponding
statutes, for it affects the underlying principles of security to personal liberty and freedom of
speech or expression, which are among the main objects sought to be secured by our frame-
work of Government.
The present case may constitute a precedent fraught with the most serious results.
The alleged offense may be and undoubtedly in the present case is—within the United
States held to be a misdemeanor, not of high grade; but in Mexico may be associated with
penal results of the gravest character. An act may be created by a Mexican statute an offense
of high grade, which in the United States would not be punishable in any degree. The safety
of our citizens, and all others lawfully within our jurisdiction would be greatly impaired, if
not wholly destroyed, by adinitting the power of a foreign state to define offenses and apply
penalties to acts committed within the jurisdiction of the United States.
The United States and the States composing this Union contain the only forum for the
trial of offenses against their laws, and to concede the jurisdiction of Mexico over Cutting's
case, as it is stated in Consul Brigham's report, would be to substitute the jurisdiction and laws
of Mexico for those of the United States over offenses committed solely within the United
States by a citizen of the United States.
The offense alleged is the publication in Texas, by a citizen of the United States, of an
article deemned libelous and criminal in Mexico.
8
Under this pretention, it is obvious that any editor or publisher of any newspaper article
within the limits and jurisdiction of the United States could be arrested and punished in Mex-
ico if the same were deemed objectionable to the officials of that country, after the Mexican
methods of administering justice, should he be found within those borders.
Aside from the claim of extraterritorial power thus put forth for the laws of Mexico and
extending their jurisdiction over alleged offenses admittedly charged to have been committed
within the borders of the United States, are to be considered the arbitrary and oppressive pro-
ceedings which, as measured by the constitutional standard of the United States, destroy the
substance of judicial trial and procedure, and to which Mr. Cutting has been subjected. (Ibid.,
p. 3.)
Article 186 of the Mexican Penal Code, translated, is as
follows:
Penal offenses? committed in a foreign country by a Mexican against Mexicans or for-
eigners, or by a foreigner against Mexicans, may be punished in the Republic (Mexico) and
according to its laws, subject to the following conditions:
I. That the accused be in the Republic, whether he has come voluntarily or has been
brought by extradition proceedings.
II. That, if the offended party be a foreigner, he shall have made proper legal complaint.
III. That the accused shall not have been definitively tried in the country where the
offense was committed, or, if tried, that he shall not have been acquitted, included in an
amnesty, or pardoned.
IV. That the breach of law of which he is accused shall have the character of a penal
offense, both in the country in which it was coinmitted and in the Republic.
V. That by the laws of the Republic the offense shall be subject to a severer penalty than
that of “arresto mayor."' 2
Such are the provisions of article 186, which expressly
asserts the jurisdictional claim of Mexico against which the
Government of the United States protested and in denial of
which Mr. Cutting's release was demanded.
It will now be seen that this jurisdictional claim was actually
enforced by the Mexican court by which Mr. Cutting was
tried.
On the 21st of July Mr. Jackson telegraphed to Mr.
Bayard that Mr. Cutting's instant release was refused, and
that reasons therefor were given. These reasons, communi-
cated to Mr. Jackson by Mr. Mariscal on the 21st of July,
were received at the Department of State on the 31st of the
same month. They alleged the impossibility of compliance
with Mr. Bayard's demand, owing to the inability of the Fed-
eral Executive to interfere with the authorities of the State of
Chihuahua. The question of jurisdiction was not touched;
2
1 Delito, defined by Escriche as la infraccion de la ley penal,
2 Arresto mayor is detention for from 1 to 11 months, as distinguished from arresto menor,
which lasts
from 3 to 30 days.
9
but, as will hereafter be seen, Mr. Marsical subsequently de-
fended the claim asserted in article 186. (H. Ex. Doc. 371,
49 Cong., ist sess., pp. 19, 20.)
Immediately after the demand for Mr. Cutting's release,
and pending the correspondence that ensued, the authorities
of Chihuahua hastened to bring the case to trial; and, on the
6th of August, Judge Zubia, of the Bravos District, before
whom the case had been brought for trial, rendered a decision
sustaining the jurisdiction of Mexico, and sentenced the pris-
oner to a year's imprisonment at hard labor, to pay a fine of
$600, or, in default thereof, endure one hundred days' addi-
tional imprisonment, and to pay a civil indemnity to Medina.
The complete official texti ofe Judge Zubia's decision is
given in Exhibit A. Translated, it reads as follows:
In view of the present suit instituted against A. K. Cutting, who declares himself to be
unmarried, 40 years of age, a native of the State of New York, a resident of this town, and
editor of the newspaper El Centinela, for the offense of defamation :
In view of the preliminary statement of the accused, the petition of the district attorney,
the statement made by the complainant, Emigdio Medina (the civil party to the suit), the de-
fense of the prisoner's attorney, Jesus E. Islas, and all else which appears from the proceed-
ings and was proper to be seen.:
It appears, 1. That in No. 14 of the newspaper called El Centinela, published in this
place, under date of the 6th of June last, there appeared a local item in English, in which
there was criticised as fraudulent a prospectus published in El Paso, Texas, announcing the
appearance of a newspaper called Revista Internacional.
It appears, 2. That Emigdio Medina, considering himself alluded to and aggrieved by
that paragraph, appeared before the second alcalde, acting in turn as criminal judge in this
town, and asked for a judgment of conciliation against A. K. Cutting, as responsible editor of
El Centinela.
It appears, 3. That the parties being present before the mediating judge, agreed on the
publication in the same newspaper, El Centinela, of a retraction which was written by Medina
and corrected by Cutting, the publication to be made four times in English, and, if Mr. A. N.
Daguerre, an associate editor of the paper, would allow it, also in Spanish.
It appears, 4. That Cutting, instead of complying with the agreement as stipulated in
the conciliation, published on the 20th of the same month of June a retraction only in English
in El Centinela, in small type and with material errors that rendered it almost unintelligible,
and published on the same day a notice or communication in the El Paso Sunday Herald, in
which he ratified and enlarged the defamatory statements which were published against
Medina, and denounced as contemptible the agreement of conciliation which had taken place
before the second alcalde of this town.
It appears, 5. That the plaintiff then appeared and in due form accused Cutting of the
penal offense of defamation, in conformity with articles 643 and 6462, section 2 of the Penal
Code, for which cause the corresponding order of arrest was issued.
!
1 Correspondencia diplomatica sobre el caso del ciudadano de los Estados Unidos de America A. K. Cut-
ting, published by the Mexican Government.
2 Article 646 provides that "defamation” shall be "punished with a penalty of from six months' deten-
tion to two years' imprisonment and a fine of from $300 to $2,000, when there is imputed a crime, act, or vice,
which may occasion to the offended party dishonor or serious prejudice.”
.
IO
It appears, 6. That on the 22d of the same month the plaintiff enlarged the accusation,
stating that although the newspaper, the El Paso Sunday Herald, is published in Texas,
Cutting had had circulated a great number in this town and in the interior of the Republic,
it having been read by more than three persons, for which reason an order had been issued to
seize the copies that were still in the office of the said Cutting.
It appears, 7. That according to law the preliminary statement of the accused was,
taken, in which he denied the jurisdiction of the court, on the ground that the act had been
committed in Texas, placing himself under the protecțion of the consul of the United States,
and the warrant for his arrest in due form was ordered to be issued and communicated to the
proper parties.
It appears, 8. That, having followed the examination through all its details, the accused
insisted on his former answer, and when notified to appoint a person to defend him, as the
citizen licentiate?, José Maria Barajos, had declined to serve, he refused to do so, whereupon
the citizen, A. N. Daguerre, a partner of the said Cutting in the editing of El Centinela, was
officially appointed; but, as he also resigned, the appointment fell upon the citizen, Jesus E.
Islas, who conducted the case up to the presentation of his brief of defense.
It appears, 9. That, in virtue of the opinion of the district attorney that the charge was
well founded, the suit was duly advertised in the office of the clerk of the court for the term
provided in article 4092, as amended, of the Code of Criminal Procedure, and that time having
elapsed without any exception being filed, the parties to the controversy were summoned
for the discussion which took place on the 5th instant in the form and terms prescribed by
the same code, the proceedings closing with the summons for sentence.
Considering, therefore, 1. That, in conformity with article 121 of the Code of Criminal
Procedure, the foundation of the criminal proceeding is the proof of the act which the law
accounts a penal offense, and that n the present case the existence of this, fact is fully proved,
as it consists of the publication appearing in El Centinela on the 6th of June last, character-
izing as fraudulent the prospectus which was issued to announce the publication of the Revista
Internacional,
Considering, 2. That although it is true that there was in regard to this matter. an act
of conciliation, which would have satisfied the plaintiff if it had been carried out, it is also
true that the terms of this act were not complied with, and that, for this reason, the respon-
sibility of the penal offense remains the same.
Considering, 3. That the proof of the lack of fulfillment of the compromise entered into
in the judgment of conciliation is actually in the communication published by Cutting in the
El Paso Sunday Herald, in which he ratified the original assertion that Emigdio Medina was
a fraud and a swindler, and at the same time in the article published in El Centinela of the
same date, leaving out all the capital letters and putting the name of Medina in microscopic
type in order to make the reading of it difficult.
Considering, 4. That ratification, according to the dictionary of Escriche, is the confirma-
tion and sanction of what has been said or done, it is retroactive and by consequence does
not constitute an act different from that to which it refers: “Ratihabitio retrotrahitur ad
initium," nor does new responsibility, distinct from that which originally existed, arise
therefrom.
Considering, 5. That this being so, the criminal responsibility of Cutting arose from the
article published in El Centinela, issued in this town, which article was ratified in the Texas
newspaper, which ratification, however, did not constitute a new penal offense to be punished
with a different penalty from that which was applicable to the first publication.
Considering, 6. That even on the supposition, not admitted, that the defamation arose
f
1 May here be translated as attorney-at-law.
2 Article 409 (amended) provides that, after the preliminary examination and the formulation of the charge
by the district attorney, the proceedings shall be placed in the office of the clerk of the court for three days,
in order that exceptions may be taken by the defense.
II
from the communication published on the 20th of June in the El Paso Sunday. Fierali,
article 186 of the Mexican Penal Code provides that--
“Penal offenses committed in a foreign country by a Mexican against Mexicans or for-
eigners, or by a foreigner against Mexicans," may be punished in the Republic and according
to its laws, subject to the following conditions :
i. That the accused be in the Republic, whether he came voluntarily or has been brought
by extradition proceedings; 2. That if the offended party be a foreigner, he shall have made
proper legal complaint; 3. That the accused shall not have been definitively tried in the
country where the offense was committed, or, if tried, that he shall not have been acquitted,
included in an amnesty, or pardoned ; 4. That the breach of law of which he is accused shall
have the character of a penal offense both in the country in which it was committed and in
the Republic; 5. That by the laws of the Republic the offense shall be subject to a severer
penalty than that of “arresto mayor”—requisites which have been fully met in the present
case: for Cutting was arrested in the territory of the Republic; there is complaint from a proper
legal source—that of Medina, who presented his complaint in the form prescribed by law; the
accused has not been definitively tried, nor acquitted, nor included in an amnesty, nor pardoned
in the country in which he committed the offense; the penal offense of which Cutting is accused "
has that character in the country in which it was committed and in the Republic, as can be
seen in the penal code in force in the State of Texas, articles 616, 617,618, and 619, and in
the Penal Code of the State of Chihuahua, articles 642 and 646; and according to this latter
article, section 2; the breach of law in question is subject to a heavier penalty than that of
“arresto mayor."
Considering, 7. That according to the rule of law, Judex non de legibus, sed secundum
leges debet judicare, it does not belong to the judge who decides to examine the principle laid
çlown in said article 186, but to apply it fully, it being the law in force in the State.
Considering, 8. That this general rule has no other limitation than that expressed in
article 126 of the General Constitution, which says: “ This Constitution, the laws of the Con-
gress of the Union passed in pursuance thereof, and all the treaties made or to be made by
the President of the Republic with the approval of the Congress, shall be the supreme law of
the whole Union. The judges of each State shall act according to said Constitution, laws, and
treaties, notwithstanding the existence of contrary provisions in the constitutions or laws of
the States."
Considering; 9. That the said article 186 of the Penal Code, far from being contrary to
the supreme law or to the treaties made by the President of the Republic, has for its object,
as is seen in the expository part of the same code, page 38, “the free operation of the principle
on which the right to punish is founded, to wit, justice united to utility.”
Considering, 10. That even supposing, without conceding it, that the penal offense of
defamation was committed in the territory of Texas, the circumstance that the newspaper, El.
Paso Sunday Herald, was circulated in this town, of which circumstance Medina complained,
and which was the ground of ordering the seizure of the copies which might be found in the
office of Cutting, in this same town, properly constituted the consummation of the crime, con-
formably to article 644 of the Penal Code 1
Considering; 11. That, according to the amended article 7 of the General Constitution,
penal offenses .committed by means of printing are to be tried by the competent Federal or
State courts, in conformity with their penal laws.
Considering, 12. That the publication by Cutting in El Centinela, ratified subsequently
in the El Paso Sunday Herald and in the evening Tribune, on file in the case, attacks the
private life of Emigdio Medina by attributing to him the penal offense of fraud and of swindling,
and is therefore comprised in the restriction placed on the liberty of the press by the said
article of the constitution.
Considering, 13. That as acts consummated in the territory of the Canton of Bravos,
1 This article provides that dcfåmation is punishable when committed by writing, printing, &c.
I 2
State of Chihuahua, are in question, it is incumbent on the judge, whose name is hereto sub-
scribed, to pass upon them conformably to the laws in force in the said State, especially in
view of the fact that the accused resides in this town, where he has had his domicil for more
than two years, as appears from the declarations made on folios 20, 21, and 22 of this case, a
statement not contradicted by Cutting, who on folio 19 declares that he resides on both sides,
that is, in Paso del Norte, Mexico, and in El Paso, Texas, without a fixed residence on either
of the two sides.
Considering, 14. That to show this more fully, Cutting expressly recognized the juris-
diction of the authorities of this town by appearing before the second alcalde, acting in turn as
criminal judge, and answering the demand for conciliation, which was made against him by
Medina for defamation.
Considering, 15. That the responsibility of Cutting is fully proved, since it appears in
credible documents which have in no wise been contradicted by their author; and, if any
doubt should exist respecting the malicious intent with which the first publication was made,
it would disappear in view of the subsequent ratifications made in the El Paso Sunday
Herald and in the Evening Tribune, in which Cutting expressly says that Emigdio Medina
is a fraud, swindler, coward and thief;? the requisites specified in article 391 of the Code of
Criminal Proceedings being thus fully met.2
Considering, 16. That in order to fix the penalty which ought to be enforced. it must
be borne in mind that, although the charge imputed to the offended party causes him dis-
honor and serious prejudice, and there are no extenuating circumstances, the crime under
consideration is of a private character between two editors, in which the only aggravating
circumstances that exist are those referred to in the 7th 3 and 11th 4 sections of article 44 and
articles 6565 and 6576, section 4 of the Penal Code, it does not appear that the other aggra-
vating circumstances mentioned by the district attorney are fully proved; for, although it is
true that the present .case has caused great alarm in the community, this is not attributable to
the penal offense imputed to Cutting, but to the inadequate means which have been taken for
his defense; this being exactly the case provided for in the final part of article 66 of the said
code;7 and
Considering, finally, 17. That the person responsible for a penal offense is also responsible
for its consequences, being likewise bound to make civil indemnity in the terms provided in
articles 3268 and 3279 of the Penal Code.
THE SENTENCE.
In view of the foregoing article 646, section 2, and articles 661,10 11911 and 218,12 of
the said code, it is ordered and adjudged as follows:
Firşt. For the penal offense of defamation committed against the person of Emigdio
Medina, A. K. Cutting is sentenced to serve a year at hard labor and pay a fine of $600, or,
in default thereof, endure additional imprisonment of a hundred days.
Second. He is also sentenced to pay the civil indemnity, to be fixed according to the
provisions of article 31313 of the Penal Code.
*
1 The epithets applied by Cutting to Medina in the card published in Texas, as appears from a copy of
the card now before the writer, were “fraud” and “dead beat."
2 Article 391 relates to proof of malicious intent.
3 Circumstances: that the delinquent is an educated person; 4 that he has violated more than one
provision of the penal code; 6 that publicity is an aggravation in defamation ; 6 that defamation is public
when printed, etc., and distributed or exposed to the public, or shown to six or more persons.
? Giving certain discretion to the judge as to severity of penalty.
8 The defendant is bound to make civil indemnity, if his act caused damage; 'and for this indemnity he
shall be held liable, whether criminally absolved or not.
10 Requiring publication of sentence, at defendant's cost.
11 As to penalty of additional imprisonment, in default of payment of the fine imposed.
12 Defendant must be admonished not to repeat the offense, and informed of the penalty imposed for such
repetition.
13 By agreement between the parties.
.
13
Third. Let the defendant be admonished not to repeat the offense for which he is
sentenced, and advised of the penalties to be incurred in that event.
Fourth. This sentence shall be published in the manner specified in article 661 of the
said code.
Fifth. The case shall be sent to the supreme court of justice, for the purposes to which
the final part of the petition of the district attorney refers, relative to the intervention of the
American consul in this suit.
Sixth. Let the interested parties be notified, and the prisoner be advised of the length
of time he has to appeal from this sentence.
Lic. Miguel Zubia, judge of the Bravos District, has so decreed definitively, in the
presence of witnesses.
MIGUEL ZUBIA.
Witnesses: L. Flores and S. Vargas.
From this decision the following facts appear: 1. Premise
6 discloses that the original ground on which Mr. Cutting was
held to answer the charge of defamation was the publication
of the card in the El Paso (Texas) Herald.
2. Consideration 3 discloses that the publication of the card
in the Texas newspaper was treated as a breach of the "con-
ciliation,” which, having once been entered into, must have
been violated by Cutting before Medina could have maintained
a criminal suit for the defamation in El Centinela of June 6.
It thus appears that the “conciliation” was held to be binding
on Cutting in Texas, and consequently to have extraterritorial
effect.
3. Consideration 6 discloses that Mr. Cutting was also held
on the ground that the publication in Texas constituted of
itself a distinct and complete offense, punishable under article
186 of the Penal Code.
4. Consideration 6 also discloses that in order to bring the
case within the provisions of article 186, the Texas Code was
introduced to show that the publication in the Texas news-
paper constituted a penal offense in that State. Thus Judge
Zubia became the vicarious interpreter of the Texas criminal
law, and substituting himself, by authority of article 186, for
the judge and jury required for the trial in that State of the
alleged violation of its laws, decided that such violation had
been committed.
The importance of this observation can be appreciated
only when we take into account that under section 2291
of the Texas Code, “it is no offense to publish true state-
Note.-Preinise 6 refers to “It appears, 6," in decision; Consideration 3 & 6 refers to
Considering 3 & 6."
14
ments of fact as to the qualification of any person for any oo-
cupation, profession, or trade;" and that, under the Constitu-
tion of Texas (Art. 1, Sec. 6), “in all indictments for libels,
the jury shall have the right to determine the law and the facts,
under the direction of the court, as in other cases." Under
these legislative and constitutional provisions it would be
impossible for any judge, domestic or foreign, to say, or for
any expert to prove before a foreign tribunal, that the publi-
cation of the statement in question was a criminal libel in
Texas. Yet, notwithstanding the rule that no penal law is
extraterritorial, and in spite of the consideration that for a
foreign tribunal to undertake to execute penally a law of
the United States against a citizen of the United States, may
justly be, and in the case in question actually was, regarded
as an offense against the United States, the Mexican judge
not only undertook to interpret and apply the Texas law of
criminal libel against a citizen of the United States, but inter-
preted and applied it in a manner flagrantly at variance with
the methods and guarantees of the fundamental law of the
State that enacted it.
It has sometimes been argued that the publication in the
Texas newspaper of the card in relation to Medina gave the
Mexican court unquestionable jurisdiction in the premises,
because it was a violation of the "conciliation,” which, being in
the nature of a contract, was binding on the parties every-
where; and that, had the court proceeded on this ground alone,
the United States would have had no cause for complaint. The
fallacy of this argument should seem apparent.
It is true that the proceeding defined in Mexican law
as a conciliation” imports an agreement between parties,
and thus bears some formal analogy to a private con-
tract; but it also imports a compromise of a preëxisting
criminal liability, which revives if the defendant violate the
terms of the “conciliation."
To argue, therefore, that the
fact of publication in the Texas newspaper was properly held
to be a violation of the "conciliation," and to be attended with
all the consequences of such violation, is merely to concede,
in another form, but to the full extent, the claim asserted in
: 15
)
article 186, and enforced in the present case, that foreigners
may incur liability to criminal prosecution in Mexico for acts
wholly committed and consummated in a foreign country
This conclusion is nőt affected by the fact, stated in Judge
Zubia's decision, that, where the terms of a conciliation have
been violated, the prosecution relates back to the original
offense; nor mitigated by the argument sometimes advanced,
that the “act of conciliation” is purely voluntary. To the first
suggestion it is sufficient to reply that the question whether
the breach of a “conciliation " revives or creates liability to
criminal prosecution is not material. It is enough that the
breach restores that liability, which the “conciliation" had
removed. As to the second point, it is only necessary to
advert to the fact that, while a defendant is not legally com-
pelled to sign a "conciliation," it may afford the means,
and the only means, of escape from the uncertainties and
tribulations of criminal prosecution and its possibly grave
consequences.
To concede that a "conciliation" may have extraterritorial
force would be to permit Mexico to impose upon citizens of
the United States, while in Mexico, the burden of continued
obedience to Mexican penal law even after their return to
their own country. From this burden their only escape would
be to renounce the benefits of the provisions of Mexican law
relating to the "act of conciliation" and undergo criminal
prosecution.
The only incident of the trial of Mr. Cutting that now
remains to be considered is the decision of the Supreme Court
of Chihuahua, pronounced on the 21st of August, 1886, releas-
ing the prisoner. Translated, this decision reads as follows:
The second alcalde of the Canton of Bravos, acting in turn in the penal branch, began
the trial of the present cause at the instance of the proper party against A. K. Cutting, who is
unmarried, forty years of age, a native of the State of New York, a resident of Pas del Norte,
and the editor of a weekly paper, El Centinela, which is published in that town, for the penal
offense of defamation committed against the citizen Emigdio Medina. By virtue of the com-
plaint presented by the offended party, criminal proceedings were instituted and were after-
wards continued by the law judge of that district in the manner prescribed by the Penal Code,
until definitive sentence was pronounced, the accused being condemned to suffer a year of
imprisonment at hard labor and to pay a. fine of $600, and being obliged in addition to pay a
civil indemnity upon the terms prescribed by law. The defense was not satisfied with this
16
decision, and having interposed its right to an appeal, the records in the case came to this
second chamber, the appeal having been duly admitted.
In order that the appeal might have due course, the prisoner was notified to name a person
to defend him in this second case; and the civil party was given a terin of five days, at the end
of which he should appear to assert his rights in the appellate court.
A. K. Cutting refused to appoint a person to defend him, for which reason the defense
of his rights was placed in charge of the official defender, the citizen Licentiate Joaquin
Villalva; and Emigdio Medina, who had promised to appear, did not do so, but transmitted a
document on the 16th of this month withdrawing from the action which he had brought.
Notwithstanding this withdrawal, which was at once admitted by the court, the court
deemed it its duty to maintain in force the summons previously issued, in order that the present
case might be decided in accordance with the requirements of justice.
In the public session which took place yesterday morning the state prosecuting attor-
ney asked that the prisoner be declared guilty, and that his offense be considered as purged by
the imprisonment already suffered, which petition was seconded by defendant's attorney; and
the proceeding was concluded with a citation to the parties for the final trial.
Considering, 1, that article 658 of the Penal Code expressly provides that no proceed-
ings shall take place against the author of a libel, defamation or calumny, unless on com-
plaint of the person aggrieved, which provision is founded upon the fact that the principal
party interested in the punishment of these offenses is the party aggrieved, and that by not
presenting his complaint, or withdrawing therefrom, he renounces the right which the law
gives him, and condones the offense.
2. Considering that on the supposition of the withdrawal of the party aggrieved, in the
case of offenses which according to the Penal Code cannot be officially prosecuted, the right
of society to punish such offenses is not so perfect nor so comprehensive as in those offenses
in which a complaint is not necessary; for there are cases in which the proceeding may be
unjustifiable and improper, because the right of punishment might be confounded with
revenge.
3. Considering that the reasons expressed in the two preceding considerations are
made stronger by article 54 and 55 of the code of penal procedure, which code, in recogniz-
ing the right of the offended party to withdraw froin the action brought, does not impose the
actual obligation of continuing the accusation, this point remaining for the decision of the
judges and the tribunals in the cases within their jurisdiction.
4. Considering that, as has been said before, the offended party, Emigdio Medina, has
withdrawn from the action to which he had a right, as against A. K. Cutting, and therefore
the principal motive of the suit does not exist; and as there is not, therefore, in the judgment
of this court, sufficient ground to continue the case.
5. Considering, finally, that the withdrawal of the party offended is conceived to have
had for its principal object the quieting of the alarm consequent upon his complaint, as the
statements made on folio 8 of the second book give it clearly to be understood, and the con-
tinuation of the proceedings on a point legally and accurately decided in the first instance,
would be not only to divest that laudable purpose of its effect, but would also be given beyond
the requirements of the law and of the national dignity.
In view of the foregoing provisions, the court decides, in the name of the justice of the
State, as follows:
1. The citizen Emigdio Medina is considered to have withdrawn to his own prejudice
from the action brought by him against A. K. Cutting, who shall immediately be released.
2. Let the state prosecuting attorney, Licentiate José Maria Gandara, and the defendant's
attorney, Licentiae Joaquin Villalva, be notified, and, after an examination of the first book of
minutes, let the proper order be issued to the second minor judge of Bravos for its exact ful-
fillment. Let a certified copy be sent to the Governor of the State and let all the papers be
filed.
17
From the decision of the Supreme Court of Chihuahua
appear the following facts:
1. The decision of Judge Zubia was fully approved; but-
2. The prisoner was released on the ground that the
plaintiff having withdrawn from the prosecution of the suit,
the principal motive of its continuance had ceased to exist;
it appearing, moreover, that the withdrawal had “for its princi-
pal object the quieting of the alarm consequent upon his
complaint.”
The circumstances of the case of Mr. Cutting; the de-
mand for his release; the jurisdictional claim of Mexico in
denial of which the demand was made; the proof of that
claim by Mr. Brigham; the implied avowal of it by the Mexican
Government, and its enforcement by the Mexican courts, have
been fully shown. Its express avowal and defense by that
Government in the present case will be disclosed when we reach
the consideration of the question whether the assertion by
Mexico of a right to try a citizen of the United States, for an
alleged offense against a Mexican, committed in the United
States, was justly resisted by the Government of the United
States.
It is proposed to discuss this question upon the principles
of international law, and' not as a matter of expediency,
depending for its determination upon the answer to be given
to the inquiry whether there may not be reasons for denying
the jurisdictional claim of Mexico, which would not be so
cogent if the same claim were to be put forward by some
other countries. This is an important consideration, and not
necessarily disrespectful to the administration of justice in
Mexico. For it is patent that there are, as between the
criminal laws of different states, fundamental differences
which it is impossible to disregard, and of which a comparison
of the trial of Mr. Cutting, from its inception to its end, with
a criminal trial for the same offense in the United States
affords an apt illustration.
But, before entering upon the discussion of the purely legal
aspects of the case, it may not be out of place to advert to the
fact that it has sometimes been urged that in not insisting
upon Mexico's immediate compliance with its demand, the
E. C.-2.
18
+
Government of the United States abandoned the position
therein assumed. Such a contention is not sustained, either
by the facts or by the reason of the case.
In the note to Mr. Jackson, dated July 21, and stating that
Mr. Cutting could not be released, Mr. Mariscal alleged the
following reasons:
Mr. Minister, these are delays that are inevitable in a country governed by institutions
like ours; where the Federal Executive is unable to communicate directly with the local
authorities of the States. Much less could it give them orders. To do thus would imply a
positive offense, especially in the case of judges independent even of the administrative
power of the State to which they belong, and that offense would be even more aggravated if
designed to trample out and peremptorily stop a legal process, instituted by an interested
party, as I understand the case of Mr. Cutting to be. (H. Ex. Doc. 371, 49th Cong., Ist sess.,
P. 20.)
It thus appears that, although Mr. Mariscal has subse-
quently defended the validity of the jurisdictional claim of his
Government, he did not then put its non-compliance with the
demand of the United States on that ground.
It happened that the difficulty alleged by Mr. Mariscal was
not without parallel in the history of the United States. Ref-
erence is made to the case of Alexander McLeod, arrested
by the authorities of the State of New York in November,
1840, and held for trial on a charge of murder committed at
the destruction of the steamer “Caroline," within the terri-
torial jurisdiction of that State.. On the 13th December, 1840,
the British Government asked for his immediate release, on
the ground that the destruction of the “Caroline” was "a pub-
lic act of persons in Her Majesty's service, obeying the order
of their superior authorities”; that it could, therefore, “only
be the subject of discussion between the two national govern-
ments,” and could “not justly be made the ground of legal
proceedings in the United States against the persons con-
cerned.”
Mr. Forsyth, Secretary of State, replied on the 28th of
December, with the declaration that no warrant for the inter-
position called for could be found in the powers with which
the Federal Executive was invested, but at the same time deny-
ing that the demand was well founded. On the 4th of March,
1841, Mr. Webster succeeded Mr. Forsyth as Secretary of
State, and on the 12th of the same month the demand for
McLeod's immediate release was repeated. Mr. Webster's
19
answer bore date the 24th of April, and, while admitting the
grounds of the demand, declared that the Federal Govern-
ment could not comply. In May McLeod was taken down to
the city of New York, and was there brought before the
Supreme Court of the State on a writ of habeas corpus. After
a full argument, that tribunal, in July, refused to discharge
him; and in the ensuing October, ten months after the first
demand and seven months after the second, he was tried at
Utica, and acquitted on proof of an alibi. This case led to
the adoption by Congress in August, 1842, of an act to pro-
vide for the removal of cases involving international relations
from the State to the Federal courts.
The course of the President of the United States in await-
ing for one month the completion of judicial proceedings in
the case of Mr. Cutting, instead of insisting on their abandon-
ment, 'far from indicating a withdrawal of his demand, was a
just and proper action, not only in the light of our former pre-
dicament, but as an exhibition of the friendly disposition of this
Government toward Mexico.
It is not proposed to discuss the extent of the control of the
Federal Executive of Mexico over the authorities of the States
which compose that Republic. This is a question of municipal
law, which, in accordance with the rule that the authorities of
a nation are the proper interpreters of its municipal regula-
tions, may be left to the Mexican Government. But it should
not be forgotten that, while a domestic difficulty may be
accepted as a plea for delay, it cannot be set up as a bar to
the ultimate performance of international obligations, and can-
not, therefore, be held to prevent a demand upon a Government
for the fulfillment of those obligations. To hold otherwise
would be to assert the supremacy of municipal regulations,
and permit each nation to prescribe the measure of its inter-
national duty.
The municipal law of every well regulated community,
said Pinkney, in his great opinion in the case of the Betsey, 1
in which the ends of social union, and the moral duties arising out of it, are understood, will
furnish us with the axiom—"sic utere tuo ut alienum non laedas." This axiom, although
incorporated into the local code of many countries, belongs to and forms a part of the law of
1. This opinion was delivered by Mr. Pinkney as a member of the mixed commission under the seventh
article of the treaty between the United States and Great Britain of 1794. See Wheaton's life of William
Pinkney, p. 207.
20
nature; and if such is the rule which natural as well as civil law prescribes to individuals in
their social relations, it is not to be conceived that the law of nations, which considers States as
so many individuals upon a footing of relative equality, communicates jurisdiction to any,
without annexing a condition to the grant, that in its exercise it shall not trench upon the
rights of any other member of the great society of nations.
Again, in the same opinion, he says:
It is obvious that between independent States, none of which can have authority over
the others, one cannot assume to itself an exclusive power of interpreting the law of nations to
the prejudice of the rest. So long as the interpretation put upon that law is a proper one, and
works no injury to any other State or its citizens, all are under a moral obligation to acquiesce
in it, because all are bound by the rule itself; but surely if the rule is misconceived, or if rules
unknown to the law of nutions are attempted to be introduced by one nation to the detriment
of another, the independence of nations is a term without a meaning, if this is to be sub-
mitted to.
It has constantly been held that neither the defective pro-
visions nor the exaggerated pretensions of municipal legis-
lation can be set up by a nation either to excuse the non-per-
formance of its international duties, or to justify its invasion
of the rights and jurisdiction of other nations. Such was
the position taken by the British Government and admitted
by Mr. Webster in the case of McLeod. And such has con-
stantly been the position taken by this Government in respect
to claims against other Governments. To say that a nation
may enforce upon foreigners within its territories whatever
laws it may see fit to adopt, would exempt it from all the
rules of international intercourse.
It is proper to state here, what may fairly be termed an
incident of the Cutting case, that on the 14th of August,
while the appeal was pending before the Supreme Court of
Chihuahua, Mr: Mariscal, by direction of the President of
Mexico, addressed to the Governors of the States of that
Republic a circular enjoining that in future, in case of the
arrest of a foreigner for any cause, especial care should be
taken and a detailed report of the causes of action and the
proceedings thereon sent to the Federal Government.
The argument has not infrequently been made that,
although the original charge against Mr. Cutting was the
publication of a libel in Texas, the demand for his release
was invalidated by the addition to the original complaint of
the charge that he had circulated the alleged libel in Mexico.
The answer to this argument is, that it can be regarded as
sound only in so far as it sustains the position heretofore taken
21
as to the propriety of the President's course in not insisting
upon the Mexican Government's putting an end to judicial
proceedings in the State of Chihuahua. The charge of circula-
tion in Mexico having been combined with that of publication
in Texas, it could not be known until those proceedings were
completed whether the latter ground would be maintained.
But this question was settled by the judgment of the Supreme
Court of Chihuahua, which, in affirming Judge Zubia's de-
cision, fully sustained the enforcement of article 186.
We have seen that the sentence of Judge Zubia rested on
the two-fold ground of the circulation of a libel in Mexico
(as to the proof of which the sentence is not clear) and the
violation of article 186 by the publication in Texas of a libel
against a Mexican.
It has been much debated, both in the United States and
in England, whether a general verdict on an indictment con-
taining good and bad counts charging the same offense ought
not to be reversed on error. The preponderance of authority
in this country has been that a court of error will presume
that the verdict was rendered on the good counts, and will so
apply it; and such was the prevailing practice in England,
until it was shaken by the case of O'Connell.1
But this rule could not have been admitted to apply to the
sentence of Mr. Cutting, because, in the first place, it con-
tinued expressly to rest, after appeal and final judgment, on
what this Government held to be an inadmissible complaint.
In the second place, the sentence was so framed, in the alter-
native, as to make it possible and even probable that it rested
wholly on that charge.
We must, therefore, hold that the judgment of the
Supreme Court of Chihuahua, in finally closing the door to
judicial reversal or correction of Judge Zubia's sentence, con-
summated the wrong of which the United States complained,
and, had Mr. Cutting not been released, would have left to
this Government the alternative of either insisting upon or
abandoning its original demand.
Viewing the matter generally, it would be strange, indeed, ,
if the demand of a Government for the release of one of its
1 Wharton's Crim. Pl. and Prac., S. 771, 8th Ed.; R. v. O'Connell, 11 Cl. and Fin. 15.
22
citizens, held in a foreign country on an inadmissible charge,
might be rendered nugatory by the answer that the invalid
charge, however clear and unmistakable its enforcement, was
accompanied by a valid complaint.
THEORIES OF CRIMINAL JURISDICTION.
The various theories of criminal jurisdiction discussed in
the books may conveniently be arranged as follows:
1:
I. TERRITORIAL.
I. Actual
a. Subjective: As to offenses committed by persons on the territory, except diplomatic
officers.
6. Objective: As to offenses committed within the territory by persons outside; 6.g., a
shot fired on one side of the boundary and taking effect on the other; infernal
machine, swindling letter, poisonous food, counterfeit money, &c., sent into coun-
try by person outside.
2. Constructive-Over offenses committed on vessels of country.
II. NON-TERRITORIAL.
1. Personal, over citizens :
a. generally; b. in particular places, e. g. barbarous lands; c. as to particular acts.
2. As to particular offenses, whether by citizens or foreigners.
a. Piracy.
1. Where two countries by convention agree to punish the citizens of each other, e'. .,
conventions for suppression of slave trade.
c. Against safety of state; counterfeiting or forging national seals, papers, moneys, bank
bills authorized by law.
3. Offenses committed abroad by foreigners against citizens.
4. All offenses, wherever and by whomsoever committed.
It is unnecessary for our present purpose to discuss in
detail all the theories of criminal jurisdiction which are stated
in the foregoing synopsis. The right of every nation, in the
exercise of its sovereignty, to punish acts committed on its
soil and in violation of its laws by persons within its territory,
may be conceded. The right of a nation to punish offenses
committed on its vessels, national or private, which for most
purposes are considered as part of the national territory, is
also admitted. Such offenses, it has been held, may be punished
by the vessel's sovereign even when they were committed on
a merchant vessel in the ports of another sovereign, provided
the latter did not take jurisdiction. And it may also be granted
that a nation may, under proper limitations, punish offenses
committed within its territory by persons corporeally outside.
23
It is true that in the case of an offense committed within
the territory of one state by a person corporeally within the
territory of another state, there may sometimes be concur-
rent jurisdiction—the former state having jurisdiction by
reason of the locality of the act, the latter by reason of the
locality of the actor. In such case the latter state may
punish the perpetrator, or may give him up to the other
state; or, if it see fit, may decline to do either. But the fact
that a state may be unable to obtain jurisdiction of the
offender is not a test of its jurisdiction over the offense, for
such inability may exist where the person who committed the
offense was, at the time of its commission, within the territory,
but subsequently fled to the jurisdiction of another country.
The principle that a man who outside of a country wilfully
puts in motion a force to take effect in it is answerable at the
place where the evil is done, is recognized in the criminal
jurisprudence of all countries. And the methods which mod-
ern invention has furnished for the performance of criminal
acts in that manner has made this principle one of constantly
growing importance and of increasing frequency of application.
Its logical soundness and necessity received early recog-
nition in the common law. Thus it was held that a man who
.
erected a nuisance in one county which took effect in another
was criminally liable in the county in which the injury was
done. (Bulwer's case, 7 co., 2 b., 3 b.; Com. Dig. Action, N.
3, 11.) So, if a man, being in one place, circulates a libel in
another, he is answerable at the latter place. (Seven Bishops
Case, 12 State Trials, p. 331; Rex v. Johnson, 7 East, 65.)
The same rule applies to obtaining money or goods by false
pretences; but it must appear that the false pretences were
actually made at the place where the prisoner is held, and not
merely that the pretences, which were made elsewhere, re-
sulted in defrauding some one at the place of trial. (Reg.
v. Garrett, 6 Cox C. C. 260.) So, if persons outside of a
country procure therein the making and engraving of a plate
for purposes of forgery, they are indictable there. (Queen
v. Bull & Schmidt, 1 Cox C. C., 281.) Likewise, for cheating
by false papers. (King v. Brisac & Scott, 4 East, 164.)
24
1
(
*
*
The same principle obtains in the United States. Thus a
man may be convicted of subornation of perjury in the State
in which, through the agency of a person there resident, the
offense was committed, though he was himself in another State.
(Com. v. Smith, 11 Allen, 243.) So, where a citizen and resi-
dent of Ohio obtained money in the State of New York by a
fictitious receipt signed by him in Ohio, but sent to the city of
New York to be fraudulently used, it was held that, being in
that State, he was liable to trial and punishment; and the
court observed
It is not necessary to notice the peculiar relation which a citizen of one of the United
States sustains to the other States; for if a subject of the British crown, while standing on
British soil in Canada, should kill a man in this State, by shooting or other means, I entertain
no doubt that he would be subject to punishment here whenever our courts could get jurisdic-
tion over his person. * If our courts cannot get jurisdiction over his person they
cannot try him. But that is no more than happens when a citizen, who has committed an
offense within the State, escapes, and cannot be found. Jurisdiction of the offense or subject
matter and jurisdiction to try the offender are very different things. The first exists whenever
the offense was committed within this State, and the second when the offender is brought into
court, and not before. (Bronson, J., in Adams v. The Peopie; Comstock's, R. (N. Y.), 173,
179.)
The same principle has also been held to apply as to nui-
sances. (Stillman & Co. v. White Rock Mfg. Co. et al., 3
Woodbury & Minot, C. C. Rep., 538.) So if a person forge
notes in one place and utter them in another, using for that
purpose the mails, he is answerable in the latter place for the
utterance of the forged papers. (The People v. Rathbun, 21
Wend, 509; Supreme Court of New York.) But where,
under a statute providing that “every person who shall sell or in
any manner transfer the services of any black, who shall have
been forcibly taken, inveigled or kidnapped from this State
(New York) to any other State, place, or country, shall, upon
conviction, be punished," a person was indicted not only for
inveigling a free negro from the State of New York with
intent to sell him, but also for the actual sale of him in another
State, it was held that the counts in the indictment relating to
the latter charge were bad, the court saying: "It cannot be
pretended or assumed that a State has jurisdiction over crimes
committed beyond its territorial limits.” (People v. Merrill,
2 Parker's Crim. Rep., 590.)
It has been held by the Supreme Court of Connecticut
25
that where an inhabitant of Massachusetts sent some paupers
into Connecticut in charge of his son, who, by direction of
his father, left them there, in contravention of the statute of
Connecticut forbidding the bringing of paupers into the State,
under penalty of a fine, the father was answerable under the
statute. (Barkhamsted v. Parsons, 3 Conn., 1.) The same
principle was applied in the case of the State v. Grady, 34
Conn., 118, the court at the same time saying:
It is undoubtedly truc, as claimed, that the courts of this State can take no cognizance
of an offense committed in another State. Such was the decision in Gilbert v. Steadman,
1 Root, 403. But it is true, and universally conceded, that if an offense is committed in this
State by the procuration of a resident of another State, who does not himself personally
come here to assist in the offense, * * * such non-resident offender can be punished for the
offense by the courts if jurisdiction can be obtained of his person.
On the principle of causal connection it is provided in the
Penal Code of New York of 1881, that if a person without
the State commits an act which affects persons or property
within the State, or the public health, morals, or decency of
the State, he is punishable therefor in the State of New
York. On this principle also rest the provisions of the Texas
code for the punishment of persons who, outside of that
State, forge titles to land within the State. 1
.
1 So it has been held by the Texas courts. In the case of Hanks v. The State (13 Tex. Appeal, 289,
decided in 1882), the question was fully discussed, and I quote from the opinion of the court the following
passages, which speak for themselves :
“Appellant and one P. F. Dillman were jointly indicted in the district court of Travis County (Texas)
for the forgery of a transfer of.a land certificate for a league and labor of land in the State of Texas. It is
alleged in the indictment that the acts constituting the forgery were all committed in Caddo Parish, in the
State of Louisiana. No act or thing connected with the execution of the forgery is charged to have been
done in Texas; but the crime and injury, so far as this State is concerned, are averred to consist in the fact
that the said forgery in Louisiana ' did then and there relate to and affect an interest in land in the State of
Texas, * * * and would, if the same were true and genuine, have transferred and affected certain property,
to wit, a certain land certificate, number 222, for one league and labor of land in the State of Texas,' &c.
This indictment was brought under article 451 of the Penal Code.
“ By article 454 of the code it is declared that persons out of the State may commit and be liable to in-
dictment and conviction for committing any of the offenses enumerated in this chapter which do not in their
commission necessarily require a personal presence in this State, the object of this chapter being to reach
and punish all persons offending against its provisions, whether within or without this State,' &c.
'It was made a ground both in the motion to quash the indictment and in arrest of judgment, and is
again urgently insisted upon in the able brief of counsel for appellant, that the facts alleged, if true, would
constitute an offense against the sovereign State of Louisiana alone, and one of which the courts of this State
would have no jurisdiction.
"If the position thus assumed in behalf of the appellant be correct, then the legislature had no authority
to pass the act quoted, and the same is an absolute nullity. ** * We can see no valid reason why the
Legislature of the State of Texas could not assert, as it has done in article 454 supra her jurisdiction over
wrongs and crimes with regard to the land titles of the State, no matter whether the perpetrator of the crime
was at the time of its consummation within or without her territorial limits. Such acts are offenses against
the State of Texas and her citizens only, and can properly be tried only in her courts. It may in fact he no
crime against the State in which it is perpetrated; and if it is, under such circumstances we are considering,
that other State would have no interest in punishing it, and would rarely, if ever, do so.
When this forgery
was committed in Louisiana, eo instanti a crime was committed against, and injury done to the State of
Texas, because it affected title to lands within her sovereignty."
26
The principle of the liability of persons outside of a State
for acts caused by them within the State was early established
in Pennsylvania by the decision of the Supreme Court in the
case of the Commonwealth v. Gillespie, et al., 7 Sergeant and
Rawle, 469, decided in 1822. The facts in this case, which
came up on a motion for a new trial, were that a lottery office
was kept in Philadelphia in a house rented by Gillespie, one
of the defendants and a resident of New York; that a lad
named Gregory, the other defendant, kept the office and sold
lottery tickets there as the agent of Gillespie, who occasion-
ally visited the place; and that, in this capacity, Gregory sold
at the office a New York lottery ticket, endorsed in the name
of Gillespie and not authorized by the laws of Pennsylvania.
The prisoners being indicted jointly as participants or con-
spirators in the crime, the court at the trial did not instruct
the jury that Gillespie was criminally answerable for the act
of his agent or servant, but left it to them to say whether,
from the whole of the evidence, he was concerned in the sale
of the ticket. The jury found that he was, and the Supreme
Court sustained the verdict. This court said:
It makes no difference where Gillespie resided; if he conspired to sell New York lottery
tickets in Pennsylvania, with his agent, and his agent effected the act, the object of unlawful
conspiracy, he is answerable criminally to our laws.
It must be recollected, the
conspiracy is a matter of inference, deducible from the acts of the parties accused, done in pur-
suance of an apparent criminal purpose, in common between them, and which rarely are con-
fined to one place; and if the parties are linked in one community of design, and of interest,
there' can be no good reason why both may not be tried, where one distinct overt act is com-
*
mitted.
This doctrine has, since Gillespie's case, been applied again
in Pennsylvania to an indictment for a conspiracy to cheat and
defraud, which was executed in that State, in the case of the
Commonwealth v. Corliss et al., 3 Brewster's Rep. 575, decided
in 1869.
These Pennsylvania cases were decided in accordance with
the rule of the common law that where two or more persons
conspire to do an unlawful act, each conspirator is responsible
in any place where any overt act by any of his co-conspirators
is done, as well as in the place where the crime is concocted
and started. (Wharton's Crim. Law, 9th ed., Book 1, § 287.)
So careful, however, have courts been to keep within what they
27
;
deemed proper jurisdictional limits, that where, in the case of
a felony, a person was guilty only as an accessory before the
fact, as, for example, where a person counseled a felony to be
committed, but was not present at its commission, it was held
that he could be tried only in the place where his guilty act of
accessoryship took place. This limitation never applied to
treason and misdemeanors, in which all participants before ora
at the commission of the offense were regarded as princip
By statute in several of the United States the accessory before
the fact may be tried in the place having jurisdiction of the
principal act, and by statutes still more recent, making all
accessories before the fact principals, the accessory before the
fact, or instigator, is triable in the place where the crime is
perpetrated. But, where no statute on the subject exists, it is
still held that an accessory before the fact can be tried only in
the place of his accessoryship. Thus it has been held in Indiana
that a person who, in the State of Ohio, counseled with and
encouraged two persons to come into Indiana and commit
larceny, could not be held in that State, there being no statute
abolishing the distinction in such case between principals and
accessories. (Fohns v. The State, 19 Ind., 421.) So, where
several persons entered into a conspiracy in Ohio to burn a
steamboat, and the crime was executed in Arkansas, it was
held by the Supreme Court of the latter State that one of the
confederates, who remained in Ohio, was, by the law of
Arkansas, merely an accessory before the fact, and could not
be tried in that State. (State v. Chapin, 17 Ark., 561.)
The same rule was held to exist in New Jersey, in the
case of The State v. Wyckoff (2 Vroom's Rep., 65), decided
by the Supreme Court of that State in 1864. The defendant
made arrangements in New York with one Kelly to go into
New Jersey and steal certain articles, which he did, afterwards
delivering them to the defendant in New York. Wyckoff
never came into New Jersey, and it was held that as his offense
merely constituted the crime of accessoryship before the fact,
and this in New York, he could not be tried in New Jersey.
Nevertheless the court said that it was a firmly established.
rule
28
that where the crime is committed by a person absent from the country in which the act is
done, through the means of a merely material agency or by a sentient agent who is innocent,
in such cases the offender is punishable where the act is done. The law implies a construct-
ive presence froin the necessity of the case; otherwise the anomaly would exist of a crime
but no responsible criminal.
The decision just quoted speaks of an innocent agent, and
implies that if a person outside of a State commits an act
within it, through an agent who is cognizant of the character
of the act which, as such agent, he performed, the principal
cannot be held. This opinion rests on the doctrine of acces-
soryship, which, as has been seen, the New Jersey court
recognized; the theory being that if the agent had a guilty
knowledge of the character of his performance he became the
principal offender in the place where he committed the act,
and that the person for whom he acted was merely an acces-
sory before the fact, and as such punishable only in the place
of his accessoryship. But, as has been shown, the doctrine
of assessoryship has been abolished by statute in many
jurisdictions in which it formerly prevailed, and is condemned
by many writers as unnecessary and unsound. Referring to
accessories before the fact, Mr. Bishop says:
The distinction between such accessory and a principal rests solely in authority, being
without foundation either in naturàl reason or in the ordinary doctrines of the law. The
general rule of the law is, that what one does through another's agency is to be regarded as
done by himself.
And on this point he cites Broom's Legal Maxims, 2 ed.,
p. 643 ; Co. Lit. 258à; and the opinion of Hosmer, C. J., in
Barkhamsted v. Parsons, 3 Conn., I, that “the principle of
common law, Qui facit per alium, facit per se, is of universal
application, both in criminal and civil cases."
Another jurisdictional question worthy of notice is that of
the offense of larceny, where goods are stolen in one State or
country and brought into another. It was held in England,
and the decision has been widely followed in the United States,
that in such a case an indictment will not lie for larceny in
the country into which the goods were brought. These
decisions rest on the ground that a person committing a
larceny in one country cannot be punished for it in another
jurisdiction. This may be regarded as sound, so far as it
goes. But in some of the United States it has been provided
29
by statute, as well as decided by the courts, that a person
bringing stolen goods from one State into another may be
indicted for larceny in the latter. And by a recent statute
the same rule is in force in Canada in respect to persons
bringing stolen goods into Canada from foreign jurisdictions.
This rule appears to rest on solid jurisdictional grounds.
It does not imply a right to punish the offender for the taking
in the foreign state, but only for his felonious act of holding
in his custody in the punishing state with an intent to convert
to his own use goods which he knows to be the property of
another. This completely constitutes the crime of larceny in
the latter state. For a clear and forcible exposition of the
jurisdiction in such a case I quote from Bishop on Criminal
Law, $ 140, vol. 1, 7th ed., the following passage :
Though our courts are not permitted to recognize a foreign larceny and punish it, they
can take cognizance of a foreign civil trespass to personal goods; and, if they obtain juris-
diction over the parties, they will redress the wrong done in the foreign country. The method
under the common law procedure is by the familiar transitory action of trespass. Now, in
every larceny there is a civil trespass as well as a criminal one. This civil trespass, when
committed abroad, our courts can recognize, and practically enforce rights growing out of it
to the same extent as if done on our own soil. So much is settled doctrine, about which
there is no dispute. It is equally settled doctrine in larceny, that if one has taken another's
goods by a mere civil trespass, even though it was unintended, then, if finding them in his
possession, the intent to steal them comes over him, and with such intent he deals with them
contrary to his duty, this is larceny. Applying these two plain doctrines to the present case
we have the result, that where a thief brings goods from a foreign State into ours our courts
are required to look upon him as a trespasser; and, when he commits any asportation of them
here, such as he necessarily did in bringing them across the territorial line, the intent to steal
impelling him, they should regard him as a felon under our laws.
An interesting case of the constructive presence and con-
sequent criminal liability of an absent confederate in the com-
mission of a crime, is that of the State of Nevada v. Hamilton
et al., 13 Nevada, 386, decided by the Supreme Court of that
State in 1878. The circumstances of the case were that a plan
was concocted between certain persons to rob the treasure
box of a stage on the road from Eureka, in Eureka County,
Nevada, to Nye County in the same State; that one of the
confederates was to ascertain when the stage left Eureka, and
to make a signal to his confederates in Nye County, thirty or
forty miles distant, by building a fire on the top of a mountain
in Eureka County, all of which he did. The question being
whether this confederate could be held in Nye County for an
30
attempt to rob there, he having been corporeally in Eureka
County when his confederates attacked the stage, it was
decided that he was properly so held, the Court adopting from
Bishop's Criminal Law, sec. 650, vol. 1, the declaration that,
where several persons confederate together for the purpose of committing a crime which is to
be accomplished in pursuance of a common plan, all who do any act which contributes to the
accomplishment of their design are principals, whether actually present at its consummation
or not. They are deemed to be constructively present though in fact they may be absent.
A question which has given rise to much contrariety of
opinion is that of the proper jurisdiction of the offense of mur-
der, where the injury is inflicted in one place or state, and the
victim dies in another place or state. In England it was once
held that where a blow was struck in one county and death
ensued in another county, the criminal could be tried in neither.
To remedy this defect, the statute of 2 and 3 Edw. VI, chap.
24, A. D. 1549, was passed, after which it was held that the
criminal could be tried in either county. But as this statute
was adopted merely to remedy a defect in the common law
procedure, by enabling juries in one county of the realm to
take cognizance to a certain extent of facts that occurred in
another county of the kingdom, it has frequently been asserted
in the United States, and is definitively settled in England,
that where a blow is struck outside of the boundaries and jur-
isdiction of an independent state by a foreigner, the mere death
of the victim, who subsequently to his injury has come or been
brought into the state, does not give it jurisdiction of the
crime. The decision of this question depends upon the view
the court may take of the relation of the death to the infliction
of the injury. The question was settled in England in the case
of the Queen v. Lewis, Ź Cox C. C., 277, decided by the Court
of Criminal Appeal in 1857. The prisoner, who was a French-
man by birth, and a naturalized citizen of the United States,
shipped at New York in December, 1856, as a seaman on
board of an American ship, on a voyage from thence to Liver-
pool. On board of the vessel, and shipped for the same
voyage, was a seaman named George, towards whom the
prisoner, soon after the commencement of the voyage, began
to exercise acts of cruelty. The last act proved was committed
four days before the vessel arrived at Liverpool, and when she
31
was on the high seas west of Cape Clear, Ireland. The vessel
arrived in the Mersey on the morning of January 12, 1857,
and George died at a hospital in Liverpool on the afternoon of
the same day, in consequence of the cruelty and violence com-
mitted upon him by the prisoner during the voyage. The in-
dictment was for manslaughter.
It was conceded by the counsel for the prosecution that by
the common law the English courts would have had no juris-
diction, but he contended that it was conferred on them by
the statutes of 2 Geo. II, C. 21, and 9 Geo. IV, c. 31. The
former act provided that where any person, at any time after
the 24th June, 1729, should be feloniously stricken or poisoned
upon the sea, or at any place out of England, and should die
of the same stroke or poisoning within England, or where any
person should be feloniously stricken or poisoned within Eng-
land and should die of the same stroke or poisoning upon the
sea, or at any place out of England-in either of the said cases
an indictment thereof found by the jurors of the county in
England in which such death, stroke, or poisoning should hap-
pen, respectively, should be as good and sufficient as if such
felonious stroke or poisoning, death thereby ensuing, had
happened in the same county where the indictment was found.
The statute 9 Geo. IV, c. 31, § 8, provided-
That where any person, being feloniously stricken, poisoned, or otherwise hurt upon the
sea, or at any place out of England, shall die of such stroke, etc., in England, etc., every offense
committed in respect of any such case, etc., may be dealt with, inquired of, tried, determined,
and punished in the county or place in England in which such death, etc., shall happen, in
the same manner, in all respects, as if such offense had been wholly committed in that county
or place.
Notwithstanding the general words, especially of the latter
act, the Court of Appeal held that the British courts had no
jurisdiction, and said that-
That section (% 8, 9 Geo. IV, c. 31) ought not, therefore, to be construed as making
homicide cognizable in the courts of this country by reason of the death occurring here, unless
it would have been so cognizable at the place where the blow was given; and the homicide
in this particular case would have been by the 7th section so cognizable if the offender had
been a British subject, but not otherwise. 1
An opposite view of the relation of the death to the mortal
injury has been taken in the United States in the case of the
1
1 See also Hoong v. The Queen, 7 Cox C. C., 489.
32
Commonwealth v. Macloon et al., 101 Mass., i, decided by the
Supreme Judicial Court of the State of Massachusetts in 1869.
The defendants, one a citizen of the State of Maine and the
other a British subject, were convicted in the Superior Court
of Suffolk County, Massachusetts, of the manslaughter of a
man who died in that county, in consequence of injuries
inflicted on him by the defendants in a British merchant-ship
on the high seas.
The statute of Massachusetts under which the defendants
were tried and convicted provides that,
If a mortal wound is given, or other violence or injury inflicted, or poison administered,
on the high seas, or on land either within or without the limits of this State, by means whereof
death ensues in any county thereof, such offense may be prosecuted and punished in the county
where the death happens. (Gen. Stats., c. 171, par. 19.)
The decision of the Supreme Court, which was delivered
by Gray, J., stated that the principal question in the case was
“that of jurisdiction, which touches the sovereign power of
the commonwealth to bring to justice the murderers of those
who die within its borders.” It was not pretended that a for-
eigner could be punished in Massachusetts for an act done by
him elsewhere. But it was held that where a mortal blow
was given outside and death ensued within the State the
offender committed a murder there. The court said-
a
Criminal homicide consists in the unlawful taking by one human being of the life of
another in such manner that he dies within a year and a day from the time of the giving of
the mortal wound. If committed with malice, express or implied by law, it is murder; if
without malice, it is' manslaughter.
The unlawful intent with which the wound is
made or the poison administered attends and qualifies the act until its final result. No repent-
ance or change of purpose, after inflicting the injury or setting in motion the force by means
of which it is inflicted, will excuse the criminal. . If his unlawful act is the efficient cause of
the mortal injury, his personal presence at the time of its beginning, its continuance, or its
result is not essential.
The same view of the crime of murder, and consequently
of jurisdiction in a case where death occurs in an independent
state from an injury committed outside, was taken by the
Supreme Court of Michigan, in the case of Tyler v. The People,
8 Mich., 320, decided in 1860. Tyler was indicted under a
statute of that State, which is substantially identical with the
Massachusetts statute referred to in the case of Macloon;
and it was held that although the mortal wound was given in
Canada, the person inflicting the blow was indictable in Michi-
*
33
gan, where the death occurred, notwithstanding that it did not
appear by the evidence that he was a citizen of that State. 1
Manning, J., delivering the opinion of the majority of the
court, said:
The shooting itself, and the wound which was its immediate consequence, did not con-
stitute the offense of which the prisoner is convicted. Had death not ensued, he would have
been guilty of an assault and battery, not murder; and would have been criminally account-
able to the latus of Canada only. But the consequences of the shooting were not confined to
Canada. They followed Jones [the victim] into Michigan, where they continued to operate
until the crime was consummated in his death.
Campbell, J., delivered a dissenting opinion of much force,
in which he argued that the coming into the State was the act
not of the wrongdoer but of the injured person, and there-
fore should not subject the former to the jurisdiction of
Michigan merely because the latter happened to die there.
This argument was adverted to in the case of Macloon, and
the answer made by the Massachusetts court was that-
it is the nature and the right of every man to move about at his pleasure, except so far as
restrained by law; and whoever gives him a mortal blow assumes the risk of this, and in the
vicw of the law, as in that of morals, takes his life wherever he happens to die of that wound.
(See Com. v. Macloon, ante.)
In New Jersey, however, the contrary view was taken by
the Supreme Court in the case of The State v. Carter (3
Dutcher, 499), decided in 1859. The defendant, who was
assumed to be a citizen of New York, was indicted for homi-
cide, by inflicting on the deceased in that State mortal wounds
of which he afterwards died in New Jersey. The statute
under which the indictment was found provided that,
where any person shall be feloniously stricken or poisoned upon the sea, or at any place out
of the jurisdiction of this State, and shall die of the same stroke or poisoning within the
jurisdiction of this State, * * * an indictment thereof found by jurors of the county within
the jurisdiction of this State, in which such death, etc.,.shall happen, etc., shall be as good
and effectual in the law, etc., as if such felonious stroke and death thereby ensuing, or poison-
ing and death thereby ensuing, etc., had happened in the same county where such indictment
shall be found. (Nixon's Dig., N. J., p. 184.)
Green, J., delivering the opinion of the court, said:
Nothing was done by the defendant in this State. When the blow was given both
parties were out of its jurisdiction, and within the jurisdiction of the State of New York.
The only fact connected with the offense alleged to have taken place within our jurisdiction
is, that after the injury the deceased came into and died in this State.
Here no act
is done in this State by the defendant.
The coming of the party injured into this
State afterwards was his own voluntary act, and in no way the act of the defendant.
*
1 Tyler was, in fact, a U. S. Marshal. His extradition was demanded by the British Government under
the Treaty of 1842, for murder committed within British jurisdiction. But after his trial and conviction, the
demand was permitted to rest. See Clarke upon Extradition, p. 68 et seq.
E. C. - 3
34
It was consequently held that the offender not being a
citizen of New Jersey, the courts of that State were incompe-
tent to try him, notwithstanding the general language of the
act under which the indictment was found.
The preponderance of decisions of the American courts
unquestionably sustains the doctrine that in murder the crime
is committed where the blow is struck. 1 It is not, how-
ever, my purpose to discuss here the soundness or unsound-
ness of these opposing views. My object in the preceding
discussion of the English and American cases has been in the
first place, to show that in no case has an English or an Ameri-
can court assumed jurisdiction, even under statutes couched
in the most general language, to try and sentence a foreigner
for acts done by him abroad, unless they were brought, either
by an immediate effect or by direct and continuous causal rela-
tionship, within the territorial jurisdiction of the court. In the
second place, I have sought to illustrate the various phases of
this principle for the purpose of dissipating the notion that it in
some way sustains the doctrine of article 186 of the Mexican
Penal Code. The mere existence of the English and American
cases negatives the claim made in that article. If a nation has
jurisdiction of offenses committed and consummated by a
foreigner outside of its actual or constructive territory, then
all argument as to the place where his acts took effect is
useless and irrelevant. It is only because such a pretension
is denied and repudiated not only in England, but also in the
United States, and as between the several States of the United
States, united as they are by a supreme Federal Constitution,
that the courts have inquired so constantly as to the locality of
the crime."
Taking up the theories classified as non-territorial, we may
first notice that which proposes the punishment by the state
of its own citizens for acts done abroad.
This theory has been separated into three subdivisions, as
follows:
(a) The punishment by the state of all acts of its citizens
1 Wharton's Cr. Law, 2 292 ; Bishop's Cr. Law, $ 113, vol. 1; Riley v. Statı, 9 Humph. (Tenn.), 6.16 ;
State v. Kelly, 76 Maine, 331.
35
abroad, which, if committed within its territory, would consti-
tute violations of its criminal law. This proposition makes the
penal law of the state a personal statute binding upon its citi-
zens everywhere.
(6) The punishment by the state of all acts of its citizens
which may be committed in particular places, and which, if
committed within its territory, would constitute violations of
its criminal law.
(c) The punishment by the state of particular acts of its
citizens abroad, which, if committed within its territory, would
constitute violations of its criminal law, and which, by, reason
of their gravity, or the fact that, as is the case with political
crimes, the foreign state may not punish them, it is the duty
of the state, not only to mankind but to itself, to punish.
It is not to be doubted that each state may, in the exercise
of its sovereignty, punish its own citizens for such acts and in
such manner as it may deem proper.
For the exercise of this right each state is responsible to
itself alone, no other state being competent to intervene.
Nevertheless, the subject has presented to publicists and leg-
islators so many grave doubts on the score of expediency and
justice, that few countries have attempted to require of their
citizens a general observance of their criminal law outside of
the national territory, except in particular places.
These exceptions are barbarous lands, in which local law
does not exist, and to which the doctrine of the sovereignty
of each nation over all persons within its territory does not
completely apply; and Mohammedan and other non-Christian
countries, in which the citizens of many states enjoy a con-
ventional immunity from the local law. In such places it is
not only proper but necessary for each state to subject its
citizens to its own regulations. The argument of expediency
may also be applied to the punishment of citizens for offenses
of a high grade, such as murder, wherever committed. But,
to quote the language of Sir George Cornewall Lewis 1 -
the system of tying the entire criminal law of a country round the neck of a subject, and of
making him liable to its operation, in whatever part of the world he may be, converts the
1 Foreign Jurisdiction and the Extradition of Criminals.
36
}
criminal law into a personal statute, and puts it on the same footing as the law respecting
civil status.
The objection to this, as he states it, is that
the personal statute of one country, in civil matters, is recognized by another, so that there
is no conflict of laws. But if the criminal law were a personal statute a foreigner would at
the same time be subject to two criminal laws—the criminal law of his own State and that of
the State of his domicile. No text-writer and no State disputes the rule that all foreigners
in a country are subject to its criminal law.
It is no answer to this cogent reasoning to say that the
punishment of a citizen by the country in which the crime was
committed would be a bar to his punishment at home for the
same offense ; for it may be very differently regarded by the
two countries. The law of the sovereign of allegiance might
punish it much more severely than the law of the country in
which the offense was committed; and, were the case reversed,
the punishment of the criminal in his own country would either
guarantee him immunity from a greater penalty justly incurred
in the state where the offense was committed, should he return
thereto, or, assuming that the former prosecution could not be
set up as a bar in the latter country, would leave him liable on
such return to a second punishment for the same offense. I
am aware that it has been proposed by some writers, and
adopted as a rule in some codes, to apply to offenses committed
outside of the state either the penalty attached to the act by
the law of the place where it was committed, or that imposed
by the law of the place of trial, whichever may be the less
severe. But the general and more consistent rule is to apply
the penalty prescribed by the law of the punishing state; for,
as it is a universal principle that one state will not enforce the
penal laws and judgments of another state, 1 it seems to be
illogical to apply to a criminal act, although committed abroad,
the penalty prescribed by a foreign law.
· In addition to the inharmonious and conflicting results
already noticed of the proposition generally to extend the
operation of criminal law to citizens when abroad, it is obvious
that if such a rule were enforced the trial of persons at a
place far away from the locus delicti would often be produc-
tive of great hardships and injustice; and, if the law were not
1 Foclix, Droit International Privé, tom. ii, tit. ix, chap. iv.
.
37
enforced, its inutility and the capriciousness of its enforcement
would render its existence inexpedient and improper.
The second subdivision of non-territorial jurişdiction in our
synopsis includes, first, the single crime of piracy. This offense
has been placed by itself, because it is sui generis. The scene
of the pirate's operations being the high seas, which it is not
the special duty or right of any nation to police, and his crime
being treated as a renunciation of the protection of the flag
which he may carry, he is regarded as a complete outlaw, and
may be punished by any nation that captures him. Such an
exercise of jurisdiction is both logical and necessary, and is
recognized by all nations' as a common duty and a common
advantage. It scarcely need be said that the exercise, as in
the case of conventions for the suppression of the slave trade
(non-territorial, 2, b.), of criminal jurisdiction by one country
over the citizens of another, under a special treaty between
the two countries, presents no conflict of jurisdictions, and is
simply a question of expediency to be considered by the parties
to the agreement. The punishment by a nation of extraterri-
torial offenses against the safety of the state, and the counter-
feiting or forging of national seals, papers, moneys, and bank
bills authorized by law. (non-territorial, 2, c.) is, as will here-
after be seen, regarded as an exception to the general prin-
ciples of criminal jurisprudence, and is placed by those who
maintain and defend it upon the high ground of necessity and
self-defense.
Our fourth subdivision of non-territorial jurisdiction pro-
poses the punishment by each state of all offenses, wherever
and by whomsoever committed. It is unneccessary to dis-
cuss this theory specifically, because, in the first place, it is ·
so rhapsodical and cosmopolitan in its character, and, while
intended to be benevolent, is so impracticable and intrusive,
that it has never assumed a legislative guise; and, in the second
place, its character will necessarily be disclosed in the consid-
eration, immediately to follow, of our third subdivision of non-
territorial jurisdiction, which proposes the punishment, by the
state, of offenses committed abroad by foreigners against citi-
zens, and which is found in article 186 of the Mexican Penal
Code.
38
It has been constantly asserted both in the United States
and in Mexico that this article is modeled on articles 5 and 7
of the French Code of Criminal Procedure; and in an editorial
in El Foro of the 6th of August last, a "journal of legislation
and jurisprudence.” published in the city of Mexico, the Mex-
ican law is elaborately defended on that ground. How far such
a statement is borne out by the facts may readily be ascer-
tained.
POSITIVE LEGISLATION RESPECTING EXTRATERRITORIAL CRIMES.
Articles 5 and 7 of the French Code of Criminal Procedurel
may be translated as follows:
ARTICLE 5. Every Frenchman who, outside of the territory of France, commits a crime
X
punishable by the French law, may be prosecuted and judgeda in France.
Every Frenchman who, outside of the territory of France, commits an act defined as a
délit by the French law, may be prosecuted and judged in France, if the act is punishable by
the legislation of the country where it was committed.
Nevertheless, in the case of a crime or of a délit, no prosecution shall take place if the
accused prove that he has been definitively judged in the foreign country.
In case of a délit committed against an individual Frenchman or foreigner, the prosecu-
tion can be instituted only at the request of the public ministry; it must be preceded by a com-
plaint of the offended party or by an official denunciation to the French authorities by the
authorities of the country where the délit was committed. No prosecution shall take place
before the return of the culprit to France, except for the crimes enumerated in article 7, below.
ARTICLE 7. Every foreigner who, outside of the territory of France, shall be guilty of a
y crime against the safety of the State, or of counterfeiting the seal of the State, national moneys
having circulation, national papers or bank bills authorized by law, may be prosecuted and
judged according to the provisions of the French laws, if he is arrested in France, or if the
Government obtains his extradition.
Such being the provisions of articles 5 and 7 of the French
Code of Criminal Procedure, argument is unnecessary to show
that they do not contain a single provision that can be con-
strued as a precedent for the Mexican statute.
Article 5
applies solely to offenses committed abroad by Frenchmen,
and even as to those there are important limitations. Article
ż applies to offenses committed abroad by foreigners; but the
jurisdiction is strictly confined to crimes against the safety of
the state, and what may be termed the analogous crimes of
counterfeiting the seal of the state, national moneys in circula-
tion, national papers, and bank bills authorized by law. There
* Code d'instruction criminelle, dispositions preliminaires; see Codes Français et Lois Usuelles, par H. F.
Rivière, Paris, 1876.
? i. e., tried, and acquitted or convicted.
39
is no suggestion of a claim to try foreigners for offenses com-
mitted abroad against a private person.
It has been seen that in respect to offenses committed
abroad by Frenchmen article 5 makes a distinction between
crimes and délits. These terms mark a distinction which
may
be likened to that denoted by the English words "felony” and
"misdemeanor.” But, as crime and felony, as well as délit
and misdemeanor, are technical terms, their correspondence,
though general, is not exact. Crime is defined in the French
Codel as an offense which the laws punish with an afflictive or
infamous penalty. Afflictive and infamous punishments are
death, solitary confinement, imprisonment, hard labor for life
or for a certain period, and transportation for life; punish-
ments simply infamous are banishment and loss of civil rights.
Délit is defined as an offense which the laws punish with
correctional penalties. 2 Such are imprisonment for a time
in a house of correction, deprivation for a time of certain civic
rights, and fines.
There is still another class of offenses called contraventions,
which are defined as infractions of law punishable with police
penalties. Such are imprisonment for not less than a day
nor more than a fortnight, or a fine of one to fifteen francs,
inclusive. Contraventions are not punishable by the Code,
when they are committed ouside of France. There is, how-
ever, a law of June 27, 1866, whose operation is conditional,
which provides for the punishment of contraventions as well as
délits of certain kinds, when committed by a Frenchman in
certain places outside of France. This law provides that
every Frenchman who commits either a délit or a contravention
in respect to the forests, the country, the fisheries, the custom-
houses, or indirect taxes, on the territory of one of the con-
tiguous states, may be prosecuted and tried in France, ac-
cording to the French law, if the state in which the offense
was committed authorizes the prosecution of its inhabitants
for the same acts, when committed in France; and it is further
provided that reciprocity shall be legally established by inter-
i Code Penal, Art. I. L'infraction que les lois punissent d'une peine affictive ou infamante est une crime.
2 Ib. L'infraction ques les lois punissent de peines correctionnelles est un délit.
3 Code Penal, Art. 1, L'infraction que les lois punissent des peines de police est une contravention.
40
national conventions, or by a decree published in the bulletin
of the laws.
In the French Code offenses against the safety of the state
are divided into two classes, viz. : those against its exterior,
and those against its interior safety. Among the former are
machinations and holding communications with foreign powers,
or their agents, to induce them to commit hostilities or enter
upon war against France; committing hostile actions, not
approved by the Government, which expose it to a declara-
tion of war.
Offenses against the interior safety of the state
are attempts or plots directed against the governing powers,
crimes tending to trouble the state by civil war, the illegal
employment of an armed force, devastation and public pillage.
Germany.—The Penal Code of the Empire of May 15,
1871,1 as modified by the law of February 26, 1876, contains
the following provisions:2
& 4. Crimes and delits committed in a foreign country are not, as a rule, subjected to any
prosecution. There can, however, be prosecuted according to the penal laws of the German
empire:
1. Every German or foreigner who, in a foreign country, is guilty of high treason against
the Empire of Germany or one of the States of the Confederation, or of counterfeiting money;
or who has committed, in the quality of a functionary of the Empire of Germany or of one of
the States of the Confederation, an act that the laws of the Empire define as a crime or délit
I committed in the exercise of public functions ;
2. Every German who, in a foreign country, is guilty of high treason against the Empire
of Germany or one of the States of the Confederation, or of an offense against a sovereign of
the Confederation;
3. Every German who is guilty, in a foreign country, of an act defined as crime or delit
by the laws of the German Empire and punishable according to the laws of the place where
it was committed. Prosecution can also take place when the criminal has not acquired the
quality of a German until after the crimc or délit has been consummated, provided, in the latter
case, that the prosecution has been preceded by a complaint of the competent authority of the
place where the act was committed. If the law of the foreign country imposes a lighter
penalty, that law ought to be applied.
& 5. In the case expressed by No. 3, % 4, the prosecution cannot take place :
X 1. If the foreign tribunals have decided on the offense by a judgment having the force of
a final judgment, and if it has resulted in an acquittal or if the person convicted has undergone
his penalty;
2. If the public action or the penalty falls under prescription according to the foreign law,
or if the penalty has been remitted;
3. If the person offended has not formulated a complaint, in the case where the foreign
legislation subordinates the prosecution to the existence of the complaint.
1 This code went into operation over the Empire on January 1, 1872.
2 See Drage's C. Code of the German Empire. In translating the crim. codcs of the continental nations,
I have used the terms crime and delit.
41
1
6. Contraventions committed abroad are not punishable, except in the cases determined
by special provisions of the law or of treaties.
7. A punishment suffered in a foreign country is to be reckoned in considering the
punishment to be awarded if a fresh condemnation ensues in the territory of the German
Empire for the same act.
Austria.—Part 1, chap. 2, of the Penal Code of the 27th
May, 1852, contains the following provisions:
% 36. The subject of the Empire of Austria who has committed a crime in a foreign
country cannot on his arrival in his own country be surrendered to that foreign country; but
he shall be treated conformably to the present Penal Code without regard to the laws of the
country where the crime was committed.
If, however, he has already been punished in the foreign country on the charge of that
violation of law, the penalty undergone shall be taken as part of that which is imposed by
the present Penal Code. In no case can the judgments of foreign criminal jurisdictions be
executed in this country.
& 38. If a foreigner is guilty in a foreign country, either of the crime of high treason
against the Austrian State, * * * or of the crime of falsifying papers of credit, or Austrian X
money, he shall be treated the same as a native, according to the present Penal Code.
% 39. If a foreigner in a foreigu country is guilty of any other crime than those specified
in the preceding paragraph, he shall always be arrested on his arrival in this country; never-
theless, communication shall immediately be established in relation to the subject of extradition
with the government of the country where the crime was committed.
& 40. In case the foreign government refuses to accept the extradition, it shall then be
proper, as a general rule, to proceed against the foreign criminal according to the provisions
of the present Penal Code.
If, however, the law of the territory where the crime was committed is milder, it shall be
proper to treat the culprit according to the milder law. The judgment of condemnation shall
pronounce, in addition, banishment after the expiration of the penalty.
Part 2, chap. I:
235. The native who shall be guilty of délits or contraventions in a foreign country can
never, on his arrival in his own country, be extradited to that foreign country. But when he
has not been punished or prosecuted in the foreign country he shall be treated conformably to
the present Penal Code without regard to the laws of the country where the violations of law
were committed.
This provision is equally applicable in the cases where a penalty has already been pro-
nounced against a native Austrian in a foreign country on the charge of like délits or. contra-
ventions, provided that the penalty has not been executed. In no case shall the judgments
of foreign criminal jurisdictions be executed in this country.
Belgium.-The law respecting the punishment of offenses
committed in a foreign country is substantially identical with
that of France, whose legislation on this subject Belgium has
followed since 1794.1
The law of 17th April, 1878, which is still in force, contains
the following provisions:
ARTICLE 6. There may be punished in Belgium every Belgian who, outside of the terri-
tory of the kingdom, shall be guilty-
1. Of a crime against the safety of the state;
2. Of a crime or a délit against the public credit * * *2, if the crime or the délit has
1 Revue de Droit International, Vol. ix, p. 305.
2 The omitted words relate to the definition, mode of proof, etc.
42
*
*
* *1,
for its object moneys having circulation in Belgium, or bills, papers, seals, stamps, marks, or
dies of the state or of the departments of government or public establishments of Belgium;
3. Of a crime or of a délit against the public credit *1, if the crime or délit has
for its object moneys not having legal circulation in Belgium, or the bills, papers, seals, stamps,
marks, or dies of a foreign country.
The prosecution in the latter case cannot take place, except on official notification given
to the Belgian authorities by the authorities of the foreign country.
ARTICLE 7. Every Belgian who, outside of the territory of the kingdom, shall be guilty of
a crime or of a délit against a Belgian may be prosecuted in Belgium.
ARTICLE 8. (This article provides that the prosecution of Belgians who, outside of the
realm, shall have committed certain crimes or délits against a foreigner, shall be based either
on the complaint of the injured person or of his family, or on official notification of the foreign
authorities to those of Belgium that the offense has been committed.]
ARTICLE 9. [This article relates to violations of forestry, rural, fishery laws, and is like
the law of France noticed on p. 39.]
ARTICLE 10. There may be prosecuted in Belgium the foreigner who shall have com-
mitted, outside of the territory of the kingdom, a crime against the safety of the State; a
crime or a délit against the public credit
*1, if the crime or the délit has for its
object moneys having legal circulation in Belgium, or national bills, papers, seals, stamps,
marks, or dies.
ARTICLE II. The foreign coadjutor or accomplice of a crime committed outside of the
territory of the kingdom by a Belgian may be prosecuted in Belgium conjointly with the
accused Belgian, or after his conviction.
ARTICLE 12. Save the cases specified in Nos. I and 2 of article 6 and in article 10, the
prosecution of the violations of law of which the present chapter treats shall not take place
unless the accused is found in Belgium.
ARTICLE 15. The preceding provisions shall not apply when the accused, having been
judged in the foreign country on the charge of the same violation of law, shall have been
acquitted.
He shall be in the same situation when, after having been condemned abroad, he shall
have undergone or prescribed his punishment, or shall have been pardoned.
Every detention undergone abroad, in consequence of a violation of law which gives
rise to a sentence of condemnation in Belgium, shall be deducted from the duration of the
penalties carrying deprivation of liberty.
ARTICLE 14. In the cases defined in the present chapter, the accused shall be prose-
cuted and judged pursuant to the provisions of the Belgian laws.
Denmark.-The Penal Code contains the following pro-
visions:
4. Every Danish subject who, for the purpose of avoiding a prohibitive law in force in
Denmark, shall commit, outside of the frontiers of the kimgdom, the act which that law
penally forbids, shall be considered as having committed it in this country.
& 5. Equally considered as having infringed the penal laws of the kingdom, is every
Danish subject who, abroad, shall have been guilty of treason against the Danish State or of
the crime of high treason, or who shall have counterfeited or altered Danish moneys, attacked
or outraged, in the exercise of his functions, a Danish functionary located in a foreign country,
or failed in any manner to perform any of the duties of loyalty and obedience to which he is
held as a subject.
*
*
*
*
* 2
1 The omitied words refer to other parts of code for definition, mode of proof, etc.
2 The omitted provisions relate to punishment of public functionaries of the kingdom for violations of
official duty abroad.
43
A
% 6. When, outside of the cases mentioned, a Danish subject shall have committed a
dělit in a foreign State, the minister of justice is authorized to prosecute him in the kingdom,
and the accused shall be judged according to the present law.
Great Britain.-—British subjects are punishable who have X
committed, either as principals or accessories, in a foreign ter-
ritory, or in the colonies, murder or manslaughter, whether
against an Englishman or against a foreigner, or offenses
against the enlistment act.
Provision is also made by the Merchant Shipping Act of
1854 for the punishment of the master, seaman, or apprentice
of a British ship, who at any place out of her Majesty's do-
minions commit offenses against persons or property.
Special enactments also exist for the punishment of British
subjects who commit crimes in uncivilized or uninhabited coun-
tries, or in countries where the British authorities exercise by
treaty criminal jurisdiction. Laws have also been passed to
execute the slave-trade treaties between Great Britain and
certain powers, authorizing the creation of mixed courts for
the adjudication of ships bearing the flag of either of the con-
tracting parties. This, however, as is said by Sir G. C. Lewis, 1
“is an arrangement which it is competent to independent
states to make in common, with the assistance of their re-
spective legislatures, and it does not affect the rights of any
third power.”
Hungary.—Jurisdiction over offenses abroad is regulated
by the Penal Code of 21 June, 1880, in force since i Septem-
ber of that year. Generally speaking, both Hungarians and
foreigners are punishable for committing, outside of Hungary,
high treason, violence against the king and members of the
royal house, treason against the state, insurrection or dis-
turbance, and falsification of metal or paper money accepted
as a means of payment into the coffers of the Hungarian
state, or of bills of public credit of Hungary. Trial and con-
viction abroad, even when the culprit has undergone the pun-
ishment there imposed, does not operate as a bar to trial and
punishment in Hungary; nor does pardon, unless it was ap-
proved by a royal minister of Hungary. It is provided, how-
ever, that the punishment undergone abroad shall, as far as
1 Foreign Jurisdiction, p. 28.
44
also, may
possible, be taken into consideration in applying the penalties
of the Hungarian law.
Hungarians may be prosecuted for yet other crimes and
offenses committed abroad; and it is provided that a foreigner,
be punished for a crime or offense committed abroad
and not included in the category given above, when, accord-
ing to treaties or actual usage, there is no ground for extradi-
tion and the minister of justice orders the prosecution. But
it is further provided that such a crime or offense cannot be
prosecuted in Hungary when the act is not punishable by the
law in force at the place where it was committed, or by the
law of Hungary, or when it has ceased to be punishable ac-
cording to one of those laws, or even when the competent
foreign authority undertakes to punish it. It is also provided
that when the penalty applicable to the crime or offense by
the law of the place where it was committed is less severe
than that of the Hungarian law, the former penalty shall be
applied; and if part of the penalty shall have been served
abroad, such part shall be taken into account by the Hunga-
rian tribunals.
A Hungarian subject can never be surrendered to the
authorities of a foreign country.
A penal judgment rendered by the authority of a foreign
country cannot be executed in the jurisdiction of Hungary.1
Italy.--Italian subjects may be punished who have com-
mitted on foreign territory crimes against the safety of the
X state, or counterfeited the seal, money, bills or obligations of
the state, or its paper money (article 5), or who have com-
mitted on foreign territory a crime or a délit against an Italian
or a foreigner (article 6). In the case, however, of a délit, ,
complaint must be made by the injured party, and, if he is a
foreigner, it must appear that the legislation of his country
assures the same protection to Italians.
In respect to offenses committed abroad by foreigners, the
Penal Code2 contains the following provisions:
ARTICLE 7. There shall be judged and punished, according to the terms of the present
code, the foreigner who, having committed on foreign territory either a crime against the safety
1 Part 1, Chap. II, Art. 7, Penal Code.
2 Code of 20 November, 1859.
45
of the State, or the crime of counterfeiting the seal, the moneys, bills or obligations of the
State, or its paper money, shall be arrested in the kingdom or surrendered by another govern-
ment.
ARTICLE 8. The foreigner who shall have committed on foreign territory, either against
an Italian, or against another foreigner, one of the crimes indicated in articles 596 to 600,
inclusive?, shall, if he happens to be arrested in the kingdom, or to be surrendered by another
government, be judged and punished according to the provisions of article 62, provided that
the crime was committed at the distance of three miles at most from the Italian frontier, or, if
the distance was greater, provided that the criminal has brought into the kingdom the money
or the property obtained by his depredations.
ARTICLE 9. Besides the case indicated in the preceding article, the foreigner who shall
have committed on foreign territory a crime to the prejudice of an Italian, shall be arrested if
he comes into the kingdom. With the authorization of the king, his return shall be offered to
the Government of the place where the crime was committed, in order that he may there be
judged. If that Government refuses to receive him, the criminal shall be judged and punished
in the kingdom, according to the provisions of article 6.
The same thing shall take place in the case of délits committed by a foreigner to the
prejudice of an Italian on foreign territory, when, in the like case, the Italian would be punished
in the country to which the foreigner belongs ; except as to that which concerns the civil action.
Except in the case of offenses against the safety of the
statė, or counterfeiting the seal, money, bills or obligations of
the state; or its paper money, persons guilty of offenses abroad
cannot be tried in the kingdom, if they have been definitively
judged in the country where the violation of law was com-
mitted, and, in case of condemnation, have undergone the
penalty imposed.
Luxembourg.—By the law of 18 January, 1879, it is pro-
vided that every subject of the Grand-Duke who, outside of
the territory of the Grand-Duchy, commits a crime or a délit
may be prosecuted and judged in Luxembourg, provided that,
in case of a délit, the act is punished by the legislation of the
country where it was committed. If the criminal has been
tried in the foreign country for the offense of which he is
accused, and has been either acquitted or condemned, and if
the latter is the case, has either undergone or prescribed his
penalty, or has been pardoned, he cannot be tried again.
Every detention abroad for the offense for which condem-
nation takes place in Luxembourg, is counted as part of the
penalty there, so far as the deprivation of liberty is concerned.
In case of a délit committed against an individual subject
of the Grand-Duke or a foreigner, the prosecution can be
1 Relating to highway robbery.
2 Relative to punishment of Italians for offenses committed abroad against an Italian or a foreigner.
See supra.
.
46
instituted only on the request of the public ministry, and should
also be preceded by a complaint of the offended party, or by
an official denunciation to the Luxembourg authorities by the
authorities of the country where the délit was committed.
The preceding provisions do not apply to political crimes
or délits committed in a foreign country. Nevertheless, an
attempt against the person of the head of a foreign Govern-
ment or against that of the members of his family is not
regarded as a political offense, nor as an act connected with
such an offense, when that attempt constitutes the crime of
murder, or of assassination, or of poisoning. The prosecution
is instituted at the request of the public ministry of the place
where the accused resides, or of the place where he may be
found.
In respect to offenses committed abroad by foreigners, the
law contains the following provisions ;
ARTICLE 7. Every foreigner who, outside of the territory of the Grand-Duchy, shall be
guilty, either as author or as accomplice, of a crime against the safety of the State, or of the
counterfeiting of the seal of the State, of national moneys having circulation, of national papers,
or of bank bills authorized by law, may be prosecuted and judged according to the provisions
of the Luxembourg laws, if he is arrested in the Grand-Duchy or if the government obtains his
extradition.
In respect to délits and contraventions by subjects of the
Grand-Duke in matters relating to the forests, the country, the
chase, the fisheries, custom-houses or indirect taxes, in the
territory of contiguous states, the law of Luxembourg follows
that of France and is founded on reciprocity and conventions.
Netherlands.—By the Penal Code, as modified by the law
of 15 January, 1886, foreigners, as well as subjects, may be
punished who, outside of the territory of the kingdom, attempt
to deprive the king of life, or to subvert the Government or
the safety of the state, or who assault the king or queen, or the
successor to the throne. Foreigners, as well as subjects, are
also punished who, in another state, counterfeit the money
and seals of the Netherlands, or bills of credit or certificates
of debt of the Dutch Government or of the Dutch possessions,
or of public institutions of the Netherlands.
Dutch subjects are punished for numerous other criminal
offenses committed abroad.
47
Norway.--Subjects are judged, according to the laws of
Norway, for violations of law committed either within or out-
side of the kingdom.
Foreigners are likewise judged for offenses committed in
the kingdom, and also for violations of law outside of the
kingdom to the prejudice of Norway or of Norwegian subjects,
if the king orders thc prosecution before the Norwegian
tribunals.
When an individual has been punished in a foreign coun-
try for a violation of law committed outside of the kingdom,
dismissal from office or employment is the only penalty which
can be pronounced against him for that same offense.
Portugal.-Only Portuguesel are punishable for offenses
committed outside of the state. They may be tried and pun-
ished for crimes committed abroad against the safety of the
State, for falsification of the public seals, moneys, etc.; pro-
vided, however, that the criminals have not been judged in
the country where they committed the offense. They may
also be tried for délits committed abroad, provided the delin-
quent is found in Portugal; that the act of which he is accused
is also defined as a crime or a délit by the legislation of the
country where it was committed, and that the criminal has not
been judged there.
Russia.--The law of Russia in relation to criminal offenses
committed outside of the national territory is fully set forth at
p. 313 et seq. of vol. 11 (1879) of Revue de droit international,
in a communication of M. Tagantzeff, professor of penal law
in the University of St. Petersburg, to Professor Fiore, of the
University of Turin, published by the latter in that journal,
and which may be translated as follows:
Articles 172, 173, and 174 of the code, edition of 1866, established the following system
of penalties applicable to crimes committed outside of the limits of Russia, in case of the
voluntary return of the culprits to their country or of their extradition:
1. As regards Russian subjects : The provisions differ here according as the crime com-
mitted has for its object Russia and Russian subjects, or else a foreign state and its subjects.
2. Against Russia : Article 173 applies in the case where the crime is directed against
the sovereign power of the state, the integrity, the safety, and the prosperity of Russia, or
where an attempt is made upon the life of one or more of its citizens.
1 Law of 1 July, 1869.
2 See also J. Domis de Semerpont on Extradition, etc.
48
According to the sense of the law and the explanations of the commentators, its applica-
tion requires :
a. That the accused has done an injury to the rights of some individual—to his honor,
his property, his liberty, his reputation, or his life; or else that he has committed an action
directed against the government in force, or menacing the security and the tranquillity of the
state. Nevertheless, the Russian legislation does not admit the restictions upon responsibility
adopted by the French law of 1867 (the difference between crimes, délits and contraventions)
and the German code of 1872, but does not make subjects responsible for the infraction, in a
foreign country, of the regulations of Russian police, guaranteeing the interests of individuals,
of the church, etc.;
6. That the criminal has not been punished in the place of the crime, or that his offense
has not been legally effaced by prescription, according to the laws of the country. This rule
applies equally in the case where the said crime is punished more severely by our code than
by that of the country where it was committed. The supplementary penalties of which the
German code speaks are not admitted in ours;
C. The institution of proceedings takes place on the general bases of the Code of Crim-
inal Procedure of 1867 (the French code).
3. To the prejudice of a foreign state: The application of article 174, in this case, requires :
a. That the criminal shall have been delivered up by the state where the crime was com-
mitted, or that he shall have taken refuge in Russia;
b. That he has done injury to the person or to the property of some foreign subject, or
else against the interior safety of the state in which he lives;
6. That his action is forbidden by the laws of the country where he committed it and by
the Russian code;
d. That the criminal has not been punished, and that his act has not been effaced by
prescription;
e. In the case where he has made an attempt against the interior safety of a foreign state,
the criminal is punished according to the rules of article 260, code of 1866, relating to politi-
cal crimes against foreign powers;
f. In order that the penalty may be applied, it is absolutely necessary that complaint
shall have been made against the criminal on the part of those offended, or on that of the
power on whose territory the crime was committed;
g. In case the crime is punished less severely by the local legislation than by the Russian
Code, the penalty is mitigated in proportion.
According to article 172 of the code foreigners having committed crimes outside of
Russia are not called before the Russian tribunals. except in case of an attempt against the
supreme power of Russia; that is to say, if they have participated in a plot tending to the
overthrow of the existing government, or to that of the Emperor and of the imperial family,
or else if they have attacked the personal and property rights of Russian subjects. As for
other crimes committed to the prejudice of Russia or of other states and foreign subjects, they
are not included in the Russian Penal Code.
As to the conditions under which the application of penalties takes place, they are the
same as for Russian subjects who have committed crimes to the prejudice of Russia.
· Sweden.-Subjects are punished for violations of law com-
mitted outside of the kingdom, if the king, acting through the
council of state or on the report of the minister of justice,
orders proceedings to be instituted.
Foreigners also are punished for offenses committed out-
side of the kingdom to the prejudice of Sweden or of a
Swedish subject, if the king orders the prosecution.
49
No one can be punished in the kingdom for an act in a
foreign country for which he has there been punished, unless
the act entail dismissal from office or civil degradation in
Sweden, in which case such dismissal or degradation may be
imposed.
Greece.-Foreigners are punishable for committing out-
side of the state high treason against Greece, for falsifying
and counterfeiting national moneys having circulation in the
kingdom, counterfeiting the seals of the state, and for crimes
or délits against a Grecian subject. Prosecution can take
place only if the culprit has been delivered up to the justice
of the state, or seized within the limits of the kingdom.
Hellenic subjects are never extradited except in cases pro-
vided for by international conventions. The circumstances
and manner of extraditing foreigners may be defined by law.
Brazil.—Both Brazilians and foreigners may be tried and
punished, who, on a foreign territory, have committed a crime
against the independence, integrity and dignity of the nation,
against the constitution of the empire and the form of govern-
ment, or against the head of the state, or who have committed
the crime of falsifying money or public titles, or bills of banks
authorized by the government. In such cases, however, the
delinquent can be definitively judged only when he is actually
in the empire, either as the result of extradition or having
come voluntarily.
There
may also be prosecuted and definitively judged in
the empire, when they have reëntered it voluntarily, Brazilians,
who, on foreign territory, commit against Brazilians or foreign-
ers the crimes of forgery, perjury, or swindling, or any other
offense not warranting bail.
Foreigners who have committed any of the crimes enum-
erated in the preceding paragraph and subsequently have
come into Brazil, are extradited, if demanded; if not, they may
be expelled from Brazilian territory, or punished conformably
to the Brazilian law. It is, however, necessary, in the last
case, that there shall have been a complaint or denunciation
authorized by the Government, and that the laws of the crim-
inal's country punish foreigners in similar cases.
E. C. 4
.
50
Spain.-Foreigners, as well as subjects, may be tried and
punished who, outside of the territory of Spain, have com-
mitted offenses against the exterior safety of the state, or the
offenses of high treason, rebellion, counterfeiting of the royal
signature or stamp, counterfeiting of the signatures of public
ministers or of the public seals, counterfeiting that is directly
prejudicial to the credit or interests of the state, and the intro-
duction and issuance of anything counterfeited, counterfeiting
of bank notes authorized by law and the introduction or
issuance of such counterfeit notes, and offenses committed by
public officers in the discharge of their public functions.
Except in the cases of treason and high treason, if a person
has been tried and acquitted or convicted in a foreign country
of
any of the offenses mentioned above, he cannot be tried
again in Spain for the same offense, unless, in case of convic-
tion, he has not served out his sentence and has not been par-
doned. In such case, he may be tried again in Spain; but any
punishment he has actually undergone abroad is taken into
account in adjusting the penalty in Spain. In all the cases
indicated above, foreigners can be prosecuted only when they
have been arrested on Spanish territory or when possession
of them has been obtained by extradition. Spaniards may be
punished who, in a foreign country, have committed offenses
against other Spaniards, or against a foreigner, provided that
in the latter case the offense was grave in character and was
punishable by the law of the foreigner's country, as well as by
the law of Spain.
Switzerland.—By the Federal Penal Code of February 4,
1853, foreigners may be punished who, outside of Switzerland,
commit offenses against the safety of the state, or contribute
to the prejudice of the Confederation by the embezzlement,
destruction or counterfeiting of official records, or by the
violent overthrow of the constitution of the Confederation, or
the violent expulsion or dissolution of its authorities; or who
recruit Swiss citizens for a prohibited military service.
In addition to the offenses specified above, Swiss citizens
are punishable for a limited number of other offenses.
.
51
The importance in the present discussion of the preceding
examination of the laws of different states touching offenses
committed on foreign territory may best be apprehended in a
tabular statement showing to what extent such jurisdiction
over foreigners is actually claimed. It is unnecessary to
tabulate the legislation respecting citizens, because that is
merely a question of expediency which each state may deter-
mine for itself, and not a matter of international right, concern-
ing which other nations may have to be consulted. It is, how-
ever, to be observed that while in some of the codes that have
been quoted the provisions respecting offenses committed
abroad by citizens are general and sweeping in their character,
in no case is a claim put forth to punish a foreigner for such
offenses, save under exceptional circumstances and in excep-
tional cases, which are supposed to justify the pretension.
FOREIGNERS ARE PUNISHED WHO, OUTSIDE OF THE NATIONAL TER-
RITORY AND JURISDICTION, COMMIT OFFENSES-
$
1. Against the safety of the state: (a) By France, Ger-
many, Austria, Belgium, Hungary, Italy, Luxembourg, the
Netherlands, Norway, Russia, Sweden, Greece, Brazil, Spain,
Switzerland; (6) not punished by Denmark, Great Britain,
Portugal.
2. Counterfeiting seals of the state, national moneys having
circulation, national papers, or bank bills authorized by law :
(a) Punished by France, Germany, Austria, Belgium, Hun-
gary, Italy, Luxembourg, the Netherlands, Norway, Sweden,
Greece, Brazil, Spain, Switzerland ; (6) not punished by Den-
mark, Great Britain, Portugal. 1
3. Other offenses : (a) General jurisdiction of offenses
committed abroad by foreigners against subjects is claimed by
Greece and Russia; (6) such offenses are punished by Sweden
and Norway, if the king orders the prosecution; (c) crimes,
but not délits, committed by foreigners in another state are
1 See, in this relation, U. S. v. Arjona, 120 U. S., 479, in which the Supreme Court, at its October term,
1886, held that the counterfeiting of foreign securities, whether national or corporate, which have been put out
under the sanction of public authority at home, especially the counterfeiting of bank notes and bank bills, is
an offense against the law of nations; and that, consequently, the Congress of the United States has authority,
under its constitutional power to provide for the punishment of offenses against the law of nations, to enact
laws to punish the counterfeiting of foreign securities in the United States.
.
+
52
punished by Austria, provided that (except in the case of
crimes specified under i and 2) an offer of surrender of the
accused person has first been made to the state in which the
crime has been committed, and has been refused by it; (d)
criminal offenses committed abroad by foreigners are punished
by Hungary, if the minister of justice orders the prosecution,
provided that the act is punishable at the place of commission,
that it has not ceased to be punishable there, and that the com-
petent authority does not undertake to punish it; (e) criminal
offenses committed by foreigners against Italians in another
state are punished by Italy, but only when (except in the cases
under 1 and 2) an offer of surrender of the person accused
has been made to the state in which the crime was committed,
and has been refused by it, unless the offense was committed
within three miles of the frontier, or stolen property has been
brought into the kingdom; (f) non-bailable offenses .com-
mitted abroad by foreigners are punished by Brazil, if the
prosecution is authorized by the government, and the laws of
the criminal's country punish foreigners in like cases; (8)
criminal offenses committed outside of the state by foreigners
against citizens or subjects are not punished under any con-
ditions by France, Germany, Belgium, Denmark, Great Britain,
Luxembourg, the Netherlands, Portugal, Spain, or Switzerland.
It is thus seen that among all the countries whose legisla-
tion has been examined, Russia and Greece are the only ones
whose assertion of extraterritorial jurisdiction is as extensive
and absolute in form as that of Mexico. For the question we
are now considering is not that of the punishment of extrater-
ritorial crimes against the safety of the state, or of coinage
felonies, but of offenses, both crimes and délits (or felonies and
misdemeanors,) committed outside of a country by foreigners
against a citizen. The only limitation imposed by article 186
upon the jurisdiction of the Mexican tribunals over offenses of
this character, is that they must be punishable with a severer
penalty than “arresto mayor” by the law of Mexico, and as
penal offenses by the law of the country in which they were
committed. Thus offenses which by the law of Mexico are
merely délits and by the law of the United States merely mis-
i
53
demeanors, may be punished under article 186. Not only is
this the language of the law, but such was its interpretation
by the Mexican court in the case in question; and by the law
of Texas libel is not a felony, but only a misdemeanor. (Smith
v. The State, 32 Texas, 594.)
The claim of Mexico is not only thus extensive, but it is
also absolute. We have seen that it was held by Judge Zubia,
whose decision was affirmed by the Supreme Court of Chi-
huahua, that according to the rule, “ Judex non de legibus sed
secundum leges debet judicare," it did not belong to the judge
to examine the principle laid down in article 186, but to apply
it in all force, it being the law of the State of Chihuahua. And
we have further seen that Mr. Mariscal disclaimed any power
to interfere with the execution of the law by the judicial tribu-
nals. Thus the Mexican claim is absolute. In this respect it
goes beyond the jurisdictional lines laid down by Sweden
and Norway, whose claims of jurisdiction are, after those of
Russia and Greece, the most extensive of any that have
been examined. In Sweden and Norway the foreigner may
be punished for an offense committed in a foreign country
against a Swedish or Norwegian subject, if. the king orders
the prosecution. This makes the prosecution discretionary and
enables the government to meet any diplomatic question that
may be raised in relation to the international right involved.
The same thing may be said of the law of Hungary, where, in
the case, supposed, the prosecution must be ordered by the
minister of justice. Austria punishes only crimes, not délits
or misdemeanorş, and then, except in the case of crimes against
the safety of the state, or coinage felonies, only after an offer
of surrender of the accused person has been made to the state
in which the crime was committed, and has been refused by it.
The same principle is found in the law of Italy, with almost the
same definition of jurisdiction. Brazil makes the assertion of
extraterritorial jurisdiction over foreigners in similar cases
depend upon the assertion of a like jurisdiction by the crim-
inal's country.
I have said that crimes committed outside of the national
territory by foreigners against citizens or subjects are not
54
punished under any circumstances or conditions by France,
Germany, Belgium, Denmark, Great Britain, Luxembourg,
the Netherlands, Portugal, Spain, or Switzerland. Before
showing this, I pronounced the Mexican contention, that the
claim to punish foreigners for offenses committed against
Mexicans outside of the national territory was sustained by
the French Code, to be wholly unfounded. I shall now show
that such a claim has been pronounced by the highest judicial
tribunal in France to be unwarranted by the principles of in-
ternational law.
I refer to the case of Raymond Fornage, decided by the
Court of Cassation, or Supreme Court, of France, at Paris in
1873, and reported in the Journal du Palais (p. 299 et seq.)
for that year. This court being the highest judicial tribunal
in France, its decisions in respect to the French law are not
to be questioned. The circumstances of the case of Fornage
are as follows: The prisoner was indicted by the “Chambre
des mises en accusation" (grand jury) of the Court of Appeal
of Chambéry for the crime of larceny, which was described in
the indictment as having been committed in the Canton of
Vaud, Switzerland; and the case was referred for trial before
a jury to the Court of Assizes (composed, in departments
where there are courts of appeal, of three judges of that
court) sitting at Haute-Savoie. The prisoner did not take an
appeal, as he had a legal right to do, from the judgment of
reference, but proposed before the Court of Assizes an ex-
ception to the competency of that court, based on the ground
that, having the quality of a foreigner, the French tribunals
could not try him for a crime committed in a foreign coun-
try. But the Court of Assizes, regarding itself as irrevocably
clothed with jurisdiction by the judgment of reference from
the Court of Appeal, which had not been attacked, declared
that the exception of the accused was not receivable. Upon
these facts the case was argued at length before the Court of
Cassation by M. Réquier, a counsellor and reporter of the
court, and M. Bédarrides, advocate general, both of whom,
while admitting that the rule was settled that a Court of Assizes
could not declare itself incompetent to take cognizance of a
55
case of which it had been possessed by a judgment of refer-
ence from which no appeal was taken within the periods
established by law, nevertheless argued that there were con-
siderations of a higher order in the case of Fornage, which
‘ought to make it an exception to the general rule. In this
relation I quote from the argument of M. Réquier, the follow-
ing passage:
The right to punish has no foundation except the right of sovereignty, which expires at
the frontier. If the Freneh law permits the prosecution of Frenchmen for crimes or misde-
meanors committed abroad, it is because the criminal law has something of the character at
the same time of a personal statute and of a territorial statute. A Frenchinan, when he has
reached a foreign country, does not remain the less a citizen of his own country; and, as such,
subject to the French law, which holds him again when he reënters France. But the law
cannot give to the French tribunals the power to judge foreigners for crimes or misdemeanors
coinmitted outside of the territory of France; that exorbitant jurisdiction, which would be
founded neither on the personal statute nor on the territorial statute, would constitute a viola-
tion of international law and an attempt against the sovereignty of neighboring nations
There exists a single exception to that rule of the law of nations. When a foreigner has
committed, even outside of the territory; a crime against the safety of the state, he can be
prosecuted, judged and punished in France. But, save that exception, founded on the right
of legitimate self-defense, foreigners are justiciable only by the tribunals of their own country
for acts done by them outside of the territory. The French tribunals, in punishing an act of
that nature, would commit a veritable usurpation of sovereignty, which might disturb the good
relations of France with neighboring nations. * * * When a crime has been committed
outside of the territory by a foreigner the culprit is not subjected by that act to the French
law; the French tribunals have no jurisdiction over him; the incompetence is radical and
absolute. The criminal court, in punishing the act, would commit an abuse of powers; it
would usurp a right of sovereignty appertaining to a foreign power. Would it not be con-
-trary to all the principles of justice to oblige the magistrates to render themselves guilty of an
arbitrary act, of a violation of international law?
Not only did the Court of Cassation adopt this view, but
in its judgment (the full text of which is given herewith as
Exhibit B) the rule of international law, as laid down by the
Government of the United States in the Cutting case,
is
expressed in terms which, for force, precision, and freedom
from doubt or qualification, have not been surpassed. Trans-
lated, the material parts of the judgment are as follows:
"Whereas, if, as a general principle, the Courts of Assizes,
possessed of a case by a judgment of the chamber of indict-
ments not attached within the times fixed by article 296 of the
Code of Criminal Procedure, cannot declare themselves incom-
petent,
this rule is founded on this, that the Courts
of Assizes, being invested with full jurisdiction in criminal
matters, can, without committing any excess of power
and
*
56
without transgressing the limits of their attributes, take cog-
nizance of all acts punished by the French law; but this juris-
diction, however general it may be, cannot extend to offenses
committed outside of the territory by foreigners, who, by reason
of such acts, are not justiciable by the French tribunals ;-See-
ing that, indeed, the right to punish emanates from the right of
sovereignty, which does not extend beyond the limits of the ter-
ritory; that, except in the cases specified by article 7 of the
Code of Criminal Procedure, the provision of which is founded
on the right of legitimate defense, the French tribunals are
without power to judge foreigners for acts committed by them
in a foreign country; that their incompetence in this regard is
absolute and permanent; that it can be waived, neither by the
silence nor by the consent of the accused; that it exists always
the same, at every stage of the proceedings
* * *, Whereas,
indeed, Raymond Fornage was brought before the Court of
Assizes of Haute Savoie, accused of larceny committed in the
Canton of Vaud, Switzerland; * * and, in ordering the
trial to proceed, without passing upon the question of nation-
ality raised by the accused, it (the court) violated article 408
of the code, and disregarded the rights of the defense.
Annul, etc.)
This judgment may be regarded as finally and conclusively
answering the contention that a precedent for article 186 may
be found in the French Code.
PRINCIPLES OF AMERICAN LAW,
*
In the United States the territorial principle is the basis of
criminal jurisprudence, and the place of the commission of an
offense is generally recognized as the proper and only place
for its punishment. Article 6 of the Amendments to the
Federal Constitution provides that,
in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by
an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of counsel for his
defense.
A similar though less elaborate provision for the punish-
ment at the locus delicti of offenses committed in the United
57
States exists in the Constitution itself, which provides (article
3, sec. 2), that
the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall
X
be held in the State where the said crimes shall have been committed; but when not com-
mitted within any State the trial shall be at such place or places as the Congress may by law
have directed.
It is thus seen that notwithstanding the fact that the
guarantees of the Federal Constitution to accused persons of
a speedy and public trial ; of trial by an impartial jury; of
the right to know the nature and cause of the accusation; to
be confronted with witnesses; to have compulsory process
for obtaining witnesses for the defense, and to have assist-
ance of counsel, operate over the whole territory of the
United States, and are binding on all the courts, State as
well as Federal, it was nevertheless regarded as essential to
the administration of justice to provide for the trial of the
person accused in the State or district where his offense should
be alleged to have been committed. But, in order to insure
the punishment of crime, there was embodied in section 2 of
article 4 of the Constitution, the following provision:
A person charged in any State with treason, felony, or other crime, who shall flee from
justice, and be found in another State, shall on demand of the executive authority of the
State from which he fled, be delivered up to be removed to the State having jurisdiction of
the crime.
These provisions of the Constitution apply to all offenses
committed in the United States.
To the strict territorial principle, the laws of the United
States furnish certain exceptions; but in no case is the ex-
ception of such a character as to involve or imply an assertion
by the United State of jurisdiction over the territory of another
nation.
The earliest bestowal by Congress upon the Federal courts
of jurisdiction over offenses committed outside of the terri-
tory, actual or constructive, of the United States, was in the
crimes act of 1790, which, as read in the text, has sometimes
been supposed by writers to have conferred a far more ex-
tensive jurisdiction on the courts of the United States than
the decisions of those tribunals have attributed to it. The
eighth section of this act provides —
that if any person or persons shall commit, on the high seas, or in any river, haven, basin,
or bay, out of the jurisdiction of any particular State, murder or robbery, or any other offense,
58
which, if committed within the body of a county, would by the laws of the United States, be
punishable with death; or if any captain or mariner of any ship or other vessel, shall pirati-
cally and feloniously run away with such ship or vessel, or any goods or merchandise, to the
value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any sea-
man shall lay violent hands upon his commander, thereby to hinder and prevent his fighting
in defense of his ship, or goods committed to his trust, or shall make a revolt in the ship,
every such offender shall be deemed, taken, and adjudged to be, a pirate and felon, and being
thereof convicted, shall suffer death; and the trial of crimes committed on the high seas, or
in any place out of the jurisdiction of any particular State, shall be in the district where the
offender is apprehended, or into which he may first be brought.
Under the provisions of this section several cases have
been adjudicated by the Supreme Court. The first was that
of U. S. v. Palmer et al., 3 Wheaton, 610, decided in 1818.
This case was certified from the Circuit Court of the United
States for the District of Massachusetts, on a division of opinion
between Mr. Justice Story, of the Supreme Court, and Judge
Davis, of the District Court. The defendants were charged
in the indictment with having committed a robbery on the high
seas on a vessel belonging to persons unknown. There was
no allegation that the defendants were citizens of the United
States, two of them being described merely as “late of Boston,”
in the State of Massachusetts, and the other "as late of New-
buryport,” in the same State; and the goods were alleged to
have been, at the time the defendants boarded the vessel and
seized them, in the custody of “certain persons, being ma-
riners, subjects of the king of Spain.” One of the questions
certified from the Circuit Court was as follows:
Whether the crime of robbery, committed by persons who are not citizens of the United
States, on the high seas, or board of any ship or vessel belonging exclusively to the subjects of
any foreign state or sovereignty, or upon the person of any subject of any foreign state or
sovereignty, not on board of any ship or vessel belonging to any citizen or citizens of the United
States, be a robbery or piracy, within the true intent and meaning of the said 8th section of
the act of Congress aforesaid, and of which the Circuit Court of the United States hath cogni-
zance, to hear, try, determine, and punish the same.
In response to this question, Chief-Justice Marshall, who
delivered the opinion of the Supreme Court, said:
The question, whether this act extends further than to American citizens, or to persons
on board American vessels, or to offenses committed against citizens of the United States, is
not without difficulty. * The words of the section are in terms of unlimited extent.
The words 'any person or persons? are broad enough to comprehend every human being.
But general words must not only be limited to cases within the jurisdiction of the state, but
also to those objects to which the legislature intended to apply them.
is of opinion that the crime of robbery, committed by a person on the high seas, on board of
any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a
*
*
The court
59
vessel belonging exclusively to subjects of a foreign state, is not a piracy within the true intent
and meaning of the act for the punishment of certain crimes against the United States.
Although the offense charged in U. S. v. Palmer et al. was
robbery on the high seas, the Chief Justice, to sustain the limi-
tation placed in the opinion on the words “any person or per-
sons," as employed in the 8th section of the act of 1790, dis-
cussed the other provisions of the section as follows:
But these words (any person or persons) must be limited in some degree, and the intent
of the legislature will determine the extent of this limitation. For this intent, we must examine
the law. The succeeding member of the sentence commences with the words : “ If any cap-
tain or mariner of any ship or other vessel shall practically run away with such ship or vessel,
or any goods or merchandise to the value of fifty dollars, or yield up such ship or vessel volun-
tarily to any pirate."
The words, “any captain or mariner of any ship or other vessel," comprehend all captains
and mariners as entirely as the words “any person or persons” comprehend the whole human
race. Yet it would be difficult to believe that the legislature intended to punish the captain
or mariner of a foreign ship who should run away with such ship and dispose of her in a foreign
port, or who should steal any goods from such ship to the value of fifty dollars, or who should
deliver her up to a pirate when he might have defended her, or even according to previous
arrangement. The third member of the sentence also begins with the general words “ any
seaman." But it cannot be supposed that the legislature intended to punish a seaman on
board a ship sailing under a foreign flag, under the jurisdiction of a foreign government, who
should lay violent hands upon his commander, or make a revolt in the ship. These are
offenses against the nation, under whose flag the vessel sails, and within whose particular jur-
isdiction all on board the vessel are. Every nation provides for such offenses the punishment
its own policy may dictate; and no general words of a statute ought to be construed to embrace
them when committed by foreigners against a foreign government.
That the general words of the two latter members of this sentence are to be restricted to
offensés committed on board the vessels of the United States, furnishes strong reason for be-
lieving that the legislature intended to impose the same restriction on the general words used
in the first member of that sentence.
The question of robbery on the high seas, under the 8th
section of the act of 1790, was again before the Supreme
Court in the case of U. S. v. Klintock, 5 Wheaton, 144, decided
in 1820. This case was certified from the Circuit Court of the
United States for Virginia, before which the defendant, a citizen of
the United States, was charged with piracy committed in April,
1818, on a vessel called the "Norberg," belonging to persons
unknown. The facts found on the trial were that the defend-
ant sailed as first lieutenant on a vessel called “The Young
Spartan," which was owned without the United States, and
cruised under a commission from Aury, styling himself Brig-
adier of the Mexican Republic, which had revolted from Spain
but was not yet recognized by the United States, and General-
issimo of the Floridas, a province then in the possession of
60
I
1
Spain. “The Norberg," which was a Danish vessel, was fraud-
ulently seized by “The Young Spartan,” one of whose officers
secreted Spanish papers on board of "The Norberg" and
then claimed her as a Spanish vessel; her company were left
on an island off the coast of Cuba; and the vessel herself was
taken to Savannah, in the State of Georgia, where the captors,
personating the Danish captain and crew, entered her as a
Danish vessel. The opinion of the Supreme Court was
delivered by Chief-Justice Marshall; and it was held, in the
first place, that the commission, under which the defendant
professed to have been cruising, did not protect him, the seiz-
ure of “The Norberg" having been made—not jure belli, but
animo furandi. On this point the Chief-Justice said:
So far as this court can take any cognizance of that fact, Aury can have no power,
either as Brigadier of the Mexican Republic, a republic of whose existence we know nothing,
or as Generalissimo of the Floridas, a province in the possession of Spain, to issue commis-
sions to authorize private or public vessels to make captures at sea. Whether a person acting
with good faith under such commission may or may not be guilty of piracy, we are all of
opinion that the commission can be no justification of the fact stated in this case. The whole
transaction taken together demonstrates that " The Norberg" was not captured jure belli, but
seized and carried into Savannah animo furandi. It was not a belligerent capture, but a
robbery on the high seas. And although the fraud practiced on the Dane may not of itself
constitute piracy, yet it is an ingredient in the transaction which has no tendency to mitigate
the character of the oftense.
The Chief-Justice then reviewed the decision of the court
in the case of United States v. Palmer ct al., as above quoted,
which had been invoked by the counsel for defendant, to show
that he was not guilty of piracy under section 8 of the act of
1790, which, it was contended, did not apply under the ruling
in Palmer's case to an American citizen entering on board of
a foreign vessel exclusively owned by foreigners and com-
mitting piracy thereon.
On this point Chief-Justice Marshall said:
Upon the most deliberate reconsideration of that subject, the court is satisfied that general
piracy, or murder, or robbery, committed in the places described in the 8th section, by persons
on board of a vessel not at the time belonging to the subjects of any foreign power, but in
possession of a crew acting in defiance of all law, and acknowledging obedienee to no gov-
ernment whatever, is within the true meaning of this act, and is punishable in the courts of
the United States. Persons of this description are proper objects for the Penal Code of all
nations; and we think that the general words of the act of Congress applying to all persons
whatsoever, though they ought not to be so construed as to extend to persons under the
acknowledged authority of a foreign state, ought to be so construed as to comprehend those
who acknowledge the authority of no state. Those general terms ought not to be applied to
61
offenses committed against the particular sovereignty of a foreign power ; but we think they
ought to be applied to offenses committed against all nations, including the United States, by
persons who, by common consent, are equally amenable to the laws of all nations.
The result of these two cases--U. S. v. Palmer et al, and
U. S. v. Klintock—is that while general piracy was punishable
under the 8th section of the act of 1790, and while in such
case proof as to the nationality of the offender, or as to the
origin of the vessel on which he sailed, was immaterial, a
pirate being amenable to the jurisdiction of all nations alike,
yet, where the offense charged under the section was not
piratical in the general sense, but only by force of the statute,
such averments must be made and such evidence produced as
to the national character of the vessel on which the offense was
committed, as would ordinarily give the courts of the United
States jurisdiction. Such was the view anngunced by the
Supreme Court in subsequent decisions. In U. S. v. Pirates,
5 Wheaton, 184, the court, while fully recognizing the decision
in Palmer's case, said that,
when embarked in a piratical cruise, every individual becomes equally punishable under the
law of 1790, whatever may be his national character, or whatever may have been that of the
vessel in which he sailed, or of the vessel attacked.
In the case of U. S. v. Holmes, 5 Wheaton, 412, decided,
as was also that of the Pirates, in 1820, the Supreme Court,
speaking through Mr. Justice Washington, laid down, as the
result of the preceding cases, the following rules:
If it (the offense) be committed on board of a foreign vessel by a citizen of the United
States, or on board of a vessel of the United States by a foreigner, the oftender is to be con-
sidered pro hoc vice, and in respect to this subject, as belonging to the nation under whose
flag he sails. If it be committed, either by a citizen or a foreigner, on board of a piratical
vessel, the offense is equally cognizable by the courts of the United States under the above-
mentioned law.
It is to be observed that Mr. Justice Washington was a
member of the Supreme Court at and prior to the time of the
decision of Palmer's case, in February, 1818, as well as during
the period intervening between that decision and the case of
Holmes, his opinion in which has just been quoted; and in
that intervening period, in April, 1818, just after the decision
in Palmer's case, he had occasion to consider that decision,
and the true construction of the 8th section of the act of 1790,
in the Circuit Court of the United States for the State of
62
Pennsylvania, in the case of U. S. v. Howard, 3 Wash. C. C.,
340. Referring to Palmer's case he said:
It was upon the whole decided that a robbery committed by any person on the high seas,
on board of a ship belonging exclusively to a foreign State, or to the subjects thereof, or upon
the person of a subject of a foi eign State, in a vessel belonging exclusively to subjects of a
foreign State, is not piracy within the true intent and meaning of the 8th section of that law.
Although the offense of robbery is the only one stated in this decision; that being the only
offense referred to in the question which was adjourned to the Supreme Court; yet there can
be no doubt but that all the other acts of piracy, enumerated in that section, are included
within the same principle.
It appears by this opinion, as well as by the opinion of
Chief Justice Marshall in Klintock's case, as above quoted,
that the Supreme Court when the judgment in Palmer's case
was rendered, understood it to decide not only that the general
words employed in the act of 1790 in reference to statutory
piracy must be restricted so as to apply only to offenses com-
mitted on board of American vessels, on the high seas, but also
that the 8th section of the act did not include piracy by the law of
nations, and, therefore, did not give the courts of the United
States jurisdiction to punish it. We have seen that in Klintock's
case, as well as in the other cases cited above from the decisions
of the Supreme Court, it was subsequently held that that sec-
tion did confer such jurisdiction; for, as it provided for the pun-
ishment of any person or persons for murder or robbery on
the high seas, and as "the pirate is a man who satisfies his
personal greed or personal vengeance by robbery or murder
in places beyond the jurisdiction of a state,"'1 it was well held
in the case of Klintock and of the Pirates, that piracy by the
law of nations was punishable under the terms of the section.
It is, however, worthy of notice that in March, 1819, after
Palmer's case was decided, Congress passed a temporary act,
which was subsequently renewed and made permanent, and is
now substantially embodied in section 5368 R. S. of the U. S.,
expressly conferring on the courts of the United States juris-
diction of "piracy, as defined by the law of nations."
No attempt was made to remove or correct the limitation
placed by the Supreme Court on the general words of the
i Hall's Int. Law, 233 ct seq. While piracy has been defined as robbery on the high scas, the more
recent jurists hold that the depredation need not be lucri causar. Whart. Cr. L., % 1860; Heffter. Völkerr,
2 104; Broglie, Sur la piraterie, iii, 335; Wheaton's Int. Law, % 123, Dana's ed., p. 195.
63
1
act of 1790, so far as they related to statutory piracy. And
although, as has been seen, the court itself, in 1820, in the
cases of Klintock, the Pirates, and Holmes, held that the 8th
section of the act of 1790, under which the indictments in
those cases were framed, covered piracy by the law of nations,
and was not repealed by the act of 1819, yet it never was
intimated that the previous decision 'respecting municipal
piracy, under the act of 1790, was wrong. Indeed, in the
case of Holmes, the latest of the cases cited, we observe in
the opinion of the court a decided affirmation of the view
expressed by the Chief Justice, in Palmer's case, that the
question of jurisdiction of acts of municipal piracy would be
determined by the flag of the vessel on which the offense
was committed. “If it (the offense] be committed,” said
the court in Holmes' case, "on board of a foreign vessel
by a citizen of the United States, or on board of a vessel of
the United States by a foreigner, the offender is to be con-
sidered pro bac vice, and in respect to this subject, as belong-
ing to the nation under whose flag he sails." This principle
was recognized by Congress in the act of the 3d of March,
1825, entitled, “An act more effectually to provide for the
punishment of certain crimes against the United States, and
for other purposes,” by which many of the provisions of dif-
ferent sections of the act of 1790 were replaced, as well as in
the act of March 3, 1835, which, in substituting provisions for
the punishment of revolt on shipboard, in place of those con-
tained in the 8th section of the act of 1790, expressly restricted
the jurisdiction of the courts to acts committed by “one or
inore of the crew of any American ship or vessel.”
It may, therefore, be said that in respect to offenses com-
mitted on the high seas, the jurisdiction exercises by the
judicial tribunals of the United States, under the legislation
of Congress and the decisions of the Supreme Court, does
not exceed, if, indeed, in the case of citizens of the United
States, it reaches, the limitations of criminal jurisdiction over
the high seas as defined by Wheaton, who, in his “Elements
of International Law," lays down the following rules:
2124. Pirates being the common enemies of all mankind, and all nations having an
equal interest in their apprehension and punishinent, they may be lawfully captured on the
64
high seas by the armed vessels of any particular State, and brought within its territorial juris-
diction, for trial in its tribunals.
This proposition, however, must be confined to piracy as defined by the law of nations,
and cannot be extended to offenses which are made piracy by municipal legislation. Piracy,
under the law of nations, may be tried and punished in the courts of justice of any nation, by
whomsoever and wheresoever committed; but piracy created by municipal statute can only
be tried by that State within whose territorial jurisdiction, and on board of whose vessels, the
offense thus created was committed. There are certain acts which are considered piracy by
the internal laws of a State, to which the law of nations does not attach the same signification.
It is not by force of the international law that those who commit these acts are tried and
punished, but in consequence of special laws which assimilate them to pirates, and which can
only be applied by the State to its own subjects, and in places within its own jurisdiction.
The crimes of murder and robbery, committed by foreigners on board of a foreign vessel, on
the high seas, are not justiciable in the tribunals of another country than that to which the
vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as
well as right, to any foreign power or its subject, but in possession of a crew acting in defiance
of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished
as piracy under the law of nations, in the courts of any nation having custody of the offenders. 1
Mr. Dana, in a note citing these and other cases, states the
following conclusion:
If an act of robbery or murder were committed upon one of the passengers or crew by
another in a vessel at sea, the vessel being at the time and continuing under lawful authority,
and the offender were secured and confined by the master of the vessel, to be taken home for
trial,--this state of things would not authorize seizure and trial by any nation that chose to in-
terfere, or within whose limits the offender might afterwards be found.
In 1799 an act was passed by Congress, the provisions of
which are now substantially embodied in section 5335 of the
Revised Statutes, which reads as follows:
SEC. 5335. Every citizen of the United States, whether actually resident or abiding
within the same, or in any foreign country, who, without the permission or authority of the
Government, directly or indirectly, commences or carries on any verbal or written correspond-
ence or intercourse with any foreign government, or any officer or agent thereof, with an intent
to influence the measures or conduct of any foreign government, or of any officer or agent
thereof, in relation to any disputes or controversies with the Uniied States, or to defeat the
measures of the Government of the United States; and every person, being a citizen of, or
resident within, the United States, and not duly authorized, who counsels, advises, or assists
in any such correspondence, with such intent, shall be punished by a fine of not more than five
thousand dollars, and by an imprisonment during a term not less than six months, nor more
than three years; but nothing in this section shall be construed to abridge the right of a citizen
to apply, himself or his agent, to any foreign government or the agents thereof for redress of
any injury which he may have sustained from such government, or any of its agents or subjects.
t
The act of 1799, commonly called the “Logan” statute,
after the person by whose informal diplomatic enterprises its
enactment was suggested, 2 applied in terms, ás does the sec-
1 Dana's Edition, p. 193. et seq. Wheaton cites, as sustaining his views, the cases of U. S. v. Klintock
and U. S. y. Pirates.
2 See Lawrence's Wheaton, ed. 1863, p. 1003; Wharton's Int. Law Digest, % 109, and same author's
State Trials, pp. 20, 21.
65
tion above quoted, only to citizens of the United States. It
raises, therefore, no question of jurisdiction as between nations,
and is of no importance in the present discussion.
The same observation may be made on the laws passed
by Congress in pursuance of treaties with China, Japan, Siam,
Egypt, and Madagascar, to confer on the minister and consuls
of the United States in those countries, or in any other coun-
tries with which the United States has similar treaties, juris-
diction “to arraign and try, in the manner herein provided,
all citizens of the United States charged with offenses against
law, committed in such countries.” (Sec. 4084 R.S.) Neither,
as has heretofore been stated, is any international question
raised by another provision of law (Sec. 4088 R. S.) conferring
a similar jurisdiction over citizens of the United States upon
“consuls and commercial agents of the United States at islands
and in countries not inhabited by any civilized people, or rec-
ognized by any treaty with the United States." In such places
there being no system of law, or courts of justice, to which
foreigners may be held answerable, it is admitted that they
must remain subject to the laws and authorities of their respec-
tive governments. 1
There is still another law, the act of Congress of August
18, 1856, section 24, now substantially embodied in section
1750 of the Revised Statutes, to which reference should be
made. By this section secretaries of legations and consular
officers of the United States in foreign lands are authorized,
at their respective posts or places,
to administer to or take from any person an oath, affirmation, affidavit, or deposition, and to
perform any notarial act which any notary public is required or authorized by law to do
within the United States.
It is provided further that,
every such oath, affirmation, affidavit, deposition and notarial act administered, sworn, affirmed,
laken, had, or done, by or before any such officer, when certified under his hand and seal of
office, shall be as valid, and of like force and effect within the United States, to all intents
and purposes, as if administered, sworn, affirmed, taken, had, or done, by or before any other
(sic) person within the United States duly authorized and competent thereto.
And it is finally provided that,
If any person shall wilfully and corruptly comınit perjury, or by any means procure any
person to commit perjury in any such oath, affirmation, affidavit, or deposition, within the in-
ܘ
i See Lewis on Foreign Jurisdiction, p. 11.
E. C.5
66
tent and meaning of any act of Congress now or hereafter made, such offender may be
charged, proceeded against, tried, convicted, and dealt with in any district of the United
States, in the same manner, in all respects, as if such offense had been committed in the
United States, before any officer duly authorized therein to administer or take such oath,
affirmation, affidavit, or deposition, and shall be subject to the same punishment and disability
therefor as are or shall be prescribed by any such act for such offense; and any document
purporting to have affixed, impressed, or subscribed thereto or thereon the seal and signature
of the officer administering or taking the same in testimony thereof, shall be admitted in
evidence without proof of any such seal or signature being genuine or of the official character
of such person; and if any person shall forge any such seal or signature, or shall tender in
evidence any such document with a false or counterfeit seal or signature thereto, knowing the
same to be false or counterfeit, he shall be deemed and taken to be guilty of a misdemeanor,
and on conviction shall be imprisoned not exceeding three years nor less than one year, and
fined in a sum not to exceed three thousand dollars, and may be charged, proceeded against,
tried, convicted, and dealt with, therefor, in the district where he may be arrested or in custody.
I am not aware that any case has ever arisen to require a
judicial construction of this act, but, as it is generally under-
stood, 1 it is not confined in its operation to citizens of the
United States, but applies as well to aliens committing the
designated offenses; and it has sometimes been referred to as
an instance of the assertion by the United States of a general
international right to try and punish aliens for acts done in a
foreign country. It is not difficult to show that such a view of
the statute is not warranted either by its terms or by the scope
or results of its operation. It is not even necessary to its jus-
tification, upon principles of international law, to adopt the
reasoning of Attorney General Williams (14 Op. 285), who,
referring to the law in question, affirmed its international
validity on the ground that “according to international law,
the domicile of an embassador, minister extraordinary, or con-
sul is a part of the territory he represents for many purposes.
This is unquestionably so. But the international validity of
the act of 1856 does not, in my judgment, rest solely, nor even
in the main, on that ground.
It is to be observed that the act relates solely to certain
officers, known to international law, who, upon the recognition
and with the consent of the governments of foreign countries,
discharge there the functions of official representatives of the
Government of the United States. One of those functions is
the performance of the official acts enumerated in the statute
of 1856, namely, the taking of oaths, etc., and the perform-
1 Wharton's Cr. Law, % 276; Williams, Attorney General, 14 Op. 285.
))
67
ance of notarial acts, for use in the United States. And as
these acts are performed under the laws of the United States,
not only does the person who appears before a secretary of
legation or a consular officer for any of the purposes enumer-
ated in the act of 1856 submit himself to the laws of the
United States to that extent, but if he swears falsely or does
any other thing in contravention of the act, he violates a law
to whose execution in its territory the foreign government has
consented. The act contains, therefore, neither an assertion of
a general right to punish aliens for acts done by them outside
of the United States, nor even an assertion of such a right to
punish them for acts so done against the Government of the
United States, to say nothing of acts merely against its citizens.
The general rule that the laws of a nation have no binding
force, except as to citizens, outside of the national territory,
actual or constructive, was again laid down by the Supreme
Court in 1824, in the case of the Apollon, 9 Wheaton, 362.
In that case, Mr. Justice Story, speaking for the court, said:
The laws of no nation can justly extend beyond its own territories, except so far as
regards its own citizens. They can have no force to control the sovereignty or rights of any
other nation, within its own jurisdiction. And, however general and comprehensive the
phrases used in our municipal laws may be, they must always be restricted, in construction,
to places and persons upon whom the legislature have authority and jurisdiction.
In a still later case heard before him in the Circuit Court
of the United States at Boston, 1 Mr. Justice Story again had
occasion to consider and decide the question of jurisdiction
over offenses committed outside of the national territory. In
this case the defendant, the master of an American whale
ship, was indicted for manslaughter, by shooting at and killing
a man on board of another and foreign vessel in the Society
Islands. It appeared that the shot was fired by the defendant
from his own vessel, and took effect as above described.
Taking the view that, although the shot was fired from the
American vessel, the crime was, in contemplation of law, com-
mitted “where the shot took effect," the learned judge said:
Of offenses committed on the high seas on board of foreign vessels not being a piratical
vessel, but belonging to persons under the acknowledged government of a foreign country, this
court has no jurisdiction under the act of 1790, ch. 36, % 12.
That was the doctrine of the
IU. S. v. Davis, 2 Sumner's C. C., 482; decided in 1837.
68
Supreme Court in United States v. Palmer, (3 Wheat., R. 610), and United States v. Klintock
(5 Wheat., 144), and United States v. Holmes (5 Wheaton, 412); applied, it is true, to another
class of cases; but in its scope embracing the present. We lay no stress on the fact that the
deceased was a foreigner. Our judgment would be the same if he had been an American cit-
izen. We decide the case wholly on the ground that the schooner was a foreign vessel, be-
longing to foreigners, and at the time under the acknowledged jurisdiction of a foreign govern-
ment.
It would be useless to attempt to collect all the declarations
and applications by the State courts of the principle that penal
laws have no extraterritorial force; and I shall quote the
language of only a few cases, to mark the uniform current.
In the case of Gilbert v. Stedman (1 Root, 403), which was
a qui tam action for stealing goods from the plaintiff's shop,
in Massachusetts, and for receiving and concealing them, know-
ing them to be stolen, it was held by the Supreme Court of
Connecticut, in 1792, that the declaration was insufficient
because it alleged neither the stealing of the goods nor the
concealment of them in Connecticut. And the court said:
The crime charged was committed in the State of Massachusetts, and out of the jurisdic-
tion of this court.
In the case of the State v. Grady, decided by the Supreme
Court of same State in 1867 (34 Conn., 118), it was declared
to be "undoubtedly true,". "that the courts of this State can
take no cognizance of an offense committed in another State."
In New York the line of decisions has also been unbroken.
In the case of The People v. Wright, decided in 1804 (2 Caine's
R., 213), the Supreme Court said,
We have no jurisdiction over offenses committed in other States.
In Charles v. People, decided in 1848 (1 Comstock, 180),
the court again declared-
Our legislature has no extraterritorial jurisdiction; and when it forbids, in unqualified
terms, the doing of an act, it must always be understood that the thing is only forbidden within
this State. It cannot be pretended or .assumed that a State has jurisdiction over crimes com-
mitted beyond its territorial limits. (Pcople v. Merrill, 2 Parker's Crim. Rep., 590.)
In People v. Noelke, 94 N. Y., 137 (A.D. 1883), the court,
referring to the case of Van Voorhis v. Brintnall, 86 N. Y,,
18, in which it was held that a marriage contract made in
another State and there valid, was valid in New York, although
it would have been invalid if made in New York; and to the case
69
of Ormes v. Dauchy, 82 N. Y., 443, in which it was held that a
contract made in relation to a lottery in a State in which lot-
teries were permitted, could be enforced in New York, where
lotteries are prohibited, said:
Both cāses rested upon the undeniable truth that our law could have no extraterritorial
operation.
Said the Supreme Court of Alabama, Green v. The State,
66 Ala., 40, decided in 1880:
It is a safe principle, perhaps, to be asserted, that a crime committed in a foreign country,
and in violation of the laws thereof, cannot by mere legislative fiction or construction be con-
stituted an offense in another country.
In the case of the State v. Knight (Taylor's Rep., 65),
decided in North Carolina in 1799, the court said:
The States are to be considered with respect to each other as independent sovereignties,
possessing powers completely adequate to their own government in the exercise of which
they are limited only by the nature and objects of government by their respective constitutions
and by that of the United States. Crimes and misdemeanors committed within the limits of
each are punishable only by the jurisdiction of that State where they arise.
Our
legislature may define and punish crimes committed within the State, whether by citizens or
strangers; because the former are supposed to have consented to all laws made by the legisla-
ture, and the latter, whether their residence be temporary or permanent, do impliedly agree to
yield obedience to all such laws, as long as they remain in the State; but they cannot define
and punish crimes committed in another State, the citizens of which, while they remain there
are bound to regulate their civil conduct only according to their own laws.
In New Jersey the Supreme Court, in the case of The
State v. Carter (3 Dutcher, 499), decided in 1859, said:
There cannot be two sovereignties supreme over the same place, at the same time, over
the same subject matter. The existence of theirs is exclusive of ours. We may exercise acts
of sovereignty over the wastes of ocean or of land, but we must necessarily stop at the boun-
dary of another. The allegation of an act done in another sovereignty to be a violation of
our own, is simply alleging an impossibility, and all laws to punish such acts are necessarily
void.
Said the Supreme Court of Indiana: 1
It
may be assumed as a.general proposition that the criminal laws of a State do not bind
and cannot affect those out of the territorial limits of the State.
Said the Supreme Court of Arkansas : 2
The laws of this State have no extraterritorial operation. Each State possesses the exclu-
sive power to provide for the punishment of crimes committed within its limits, except so far
as this power may have been surrendered to the Government of the United States by the Fed-
eral Constitution.3
1 Johns v. The State, 19 Ind., 421, A. D. 1862.
2 State v. Chapin, 17 Ark., 561, A. D. 1856.
3 See also Haven v, Foster, 9 Pick, (Mass.), 112; State v. Moore, 6 Foster (N. H.), 448; In re Carr,
28 Kansas, 1,
70
MEXICO'S DEFENSE.
Having sufficiently disclosed the positive legislation of dif-
ferent countries, and its judicial construction, in respect to
extraterritorial crime, I proceed to examine the arguments put
forth by the Mexican Government in support of article 186 of
the Penal Code. These arguments, which were communicated
from time to time to this Department by Mr. Romero, Mexican
Minister at this Capital, are before me in three versions—Span-
ish, French, and English–the first and second published in
pamphlet form by the Mexican Government, and the third made
in this Department from the Spanish text communicated by
the Mexican Minister.
The first of these arguments is in a note addressed to Mr.
Bayard by Mr. Romero, on the 7th of August, 1886, while Mr.
Cutting was still in prison. This note opens with a statement
of the circumstances of the case, derived, as Mr. Romero
says, from private reports received by him from Paso del
Norte. The only point I shall notice in this statement is the
allegation that Mr. Cutting “distributed in El Paso del Norte,
Mexico, several copies of the Sunday Herald (the Texas paper)
containing his article against Medina,” and that, “for this
cause, the following day, June 21, he was summoned anew by
Medina for defamation, in conformity with articles 642 and 186
of the Mexican Penal Code.” As has been shown,
, article 642
merely defines defamation; and as, by Mr. Romero's state-
ment, the only other law invoked was article 186, the inference
is that the warrant issued for Mr. Cutting's arrest was based
on the publication of the alleged libel in Texas, and not, as
Mr. Romero's information led him to suppose, on a charge of
circulating that libel in Mexico. But we are not compelled to
resort to inference, for it is stated in Judge Zubia's decision
that on the 22d of June the plaintiff appeared and "broadened"
his original accusation, on which the warrant of arrest had
been issued, by the allegation that the defendant had circulated
the Sunday Herald in Mexico.
i
71
After summarizing the facts, Mr. Romero proceeds to dis-
cuss the legal aspect of the case, as follows:
The Government of the United States believes that Cutting is under trial in El Paso solely
because of an article published in El Paso, Texas, in compliance with article 186 of the Mex-
ican Penal Code, and it considers that article incompatible with the principles of international
law.
I think it 'proper to state, with reference to the first point, that as I understand it,
Cutting is on trial for the publication in El Centinela, a periodical published in El Paso del
Norte, Mexico, of an article against Medina which is deemed defamatory, and although there
may have been adduced as an aggravating circumstance the publication of the other article in
El Paso, Texas, I do not think that this is the principal crime of Cutting.
And to sustain this view, Mr. Romero argues that the
"conciliation" signed by Medina and Cutting on the 14th of
June did not terminate the prosecution of Cutting absolutely,
but only on condition of his complying with the terms of the
agreement.
This argument has already been noticed, and it has been
contended that to treat the publication by a citizen of the
United States of a libel in Texas as a branch of a "concilia-
tion" in Mexico, and as consequently subjecting the publisher
,
to criminal liability in Mexico, is the same thing in principle
as the claim made in article 186 of a right to regulate and
punish in Mexico the acts of foreigners in their own country,
provided a Mexican is concerned. This, it is conceived, would
be a sufficient answer to Mr. Romero's argument, even if it
had not appeared that the sentence imposed on Cutting by
Judge Zubia, and subsequently adopted and sustained by the
Mexican Government, as will hereafter be more fully shown,
rested not only on the ground that the publication in Texas
violated the terms of the "conciliation” and restored Cutting's
liability to criminal prosecution, but also distinctly and in the
alternative on the ground that the publication in Texas created
an original liability to prosecution and punishment under
article 186.
Mr. Romero then takes up this article, and says that the
Penal Code in which it is found, "was drawn up by a com-
mission of distinguished Mexican lawyers who threw on the
subject the light of a special study of penal legislation, and
who adopted from the European codes all that appeared
72
}
to them most advanced and adaptable to the circumstances of
Mexico;" and in support of this he cites the Penal Codes of
Belgium, France and Italy, and argues that the present tend-
ency of criminal law is in the direction of a wider jurisdiction.
On this subject more will be said hereafter. And I will now
pass to another branch of Mr. Romero's argument, which,
translated, reads as follows:
!
The system of punishing crimes committed in foreign parts, especially when these,
although perpetrated abroad, have their complement or realization or produce their effects in
the country which punishes them, is in practical application in several countries, not merely
in the provisions of their penal codes, but in the trials daily conducted and in the doctrines
of various modern criminal authorities.
It is true that, under the laws (common law) of the United States and England, there is
no jurisdiction to take cognizance of crimes committed in a foreign land; yet, in spite of this,
there has just occured a trial for libel, in London, on suit instituted by Mr. Cyrus Field against
Mr. James Gordon Bennett, editor of the Herald, of New York, by reason of articles published
in New York in Mr. Bennett's paper, which Mr. Field regarded as defamatory of himself, and
in which Mr. Bennett was condemned by the English courts to pay $25,000 for the damages
and injuries occasioned to Mr. Field by the aforesaid articles, notwithstanding that they had
been published in New York and not in London. It should, moreover, be borne in mind
that Mr. Bennett is not a resident of London, as Mr. Cutting is of Paso del Norte.
It is true that the basis of judgment of the English courts appears to be that, although the
offense was committed in New York, its effects were produced in London, where the New
York Herald circulates; but precisely the same reason exists in the case of Cutting, in the
supposition that although the article was published in El Paso, Texas, it circulated in Paso del
Norte, Mexico, where Medina was known, and where it may be said that it produced its effect.
Several writers on the American and English Penal Code maintain doctrines similar to
those put forth in article 186 of the Mexican Penal Code.
Joel Prentiss Bishop, in his Commentaries on the Criminal Law, 7th edition, 1882, vol.
I, chapter VI, section 110, page 59 (Boston: Little, Brown & Co.), says as follows:
“One who is personally out of the country may put in motion a force which takes effect on
it; and in such a case he is answerable where the evil is done though his presence is else-
where. Thus, murder, libel, false pretences, &c., If a man standing beyond the outer
line of our territory, by discharging a ball kills another within it, or himself being abroad cir-
culates through an agent, libels here
or does any other crime in our own locality
against our laws, he is punishable, though absent, the same as if he were present.”
In support of this doctrine, Bishop cites various American and English authorities, who
sustain the principles enunciated by him.
This same doctrine is maintained by Bishop in his work entitled: “ Criminal Procedure
or Commentaries on the Law of Pleading and Evidence and Practice in Criminal Cases.''
(Third edition, 1880, Vol. I, Book II., Chapter IV., Section 53, page 27; Boston: Little,
Brown & Co.), wherein he says as follows:
“ Personal presence.—The law deems that a crime is committed in the place where the
criminal act takes effect. Hence, in many circumstances one becomes liable to punishment in
a particular jurisdiction while his personal presence is elsewhere. Even, in this way,
commit an offense against a State or country upon whose soil he never set his foot, as explained
in criminal law."
Bishop then goes on to mention defamation (libel) among the crimes which are punished
in the place where they produce their effects, even though the party responsible does not reside
there, and he cites various authorities to support his theory.
*
he may
.
73
The only observation I desire to make on this argument
is that it blends two wholly distinct, and. indeed antagonistic,
principles of criminal jurisdiction, and treats them as if they
were the same. It is one thing to say that a man who, outside
of the territory of a country, commits a criminal act within it,
may be punished by its courts, if brought within reach of their
process; it is quite another thing to say that a man can be
punished by the courts of a country for acts done outside of
it, merely because the object of those acts happens to be one
of its citizens. The Government of the United States has
never intimated that if Cutting had been arrested and tried
on the charge of circulating, which in law would have been
"publishing," à libel in Paso del Norte, the Mexican courts
would not have had a right to punish him for having done so,
merely because the printing was done in Texas. In law the
circulation of a libel is a publication of it; it is "published"
whenever and wherever it is circulated; and whenever and
wherever a man actually circulates a criminal libel he commits a
substantive criminal offense, whether he is corporeally present
or no. The malicious intent, the guilty will, accompanying a
lawless act, makes the actor, although not corporeally present
at the place where his act takes effect, just as much a criminal
there as if he were physically present.
The quotations made by Mr. Romero from Bishop's works
on Criminal Law and Criminal Procedure, to show that it is
held in England and the United States that corporeal presence
is not always essential to the commission of crime, may be
accepted as legally and logically sound, and as lucid, forcible,
and satisfactory statements of a general legal principle.
Opposed to this is article 186, against the principle of which
it would be difficult to find more decided and more effective
argumentative opposition than is contained in the works of Mr.
Bishop, from which Mr. Romero has quoted. Article 186
asserts that a foreigner who, in a foreign country, commits an
act there against a Mexican, may afterwards be punished for
it in Mexico. It discards both the locality of the act and the
locality of the actor, one of which, at least, must, according to
the theory propounded by Mr. Bishop, have been within the
74
territorial limits of the country, in order to give its court
jurisdiction over a foreigner. In section 110 of the ist vol-
ume of his Criminal Law, and immediately preceding the
quotation made by Mr. Romero from that section, Mr. Bishop
declares it to be a general principle, "that no man is to suffer
criminally for what he does out of the territorial limits of the
country.” Adverting in section 115 to the same question, he
says:
When the citizen abroad commits ein offense it is competent and consistent with the law
of nations, and in every respect just, for his own government to provide for his own punish-
ment through its own courts. But in most other circumstances one government has no just
right to punish what is done within the territorial limits, or the ships on the high seas of
another government.
Not only is Mr. Bishop clear on this point, but he holds
that where a statute is couched in such general terms as to
include offenses committed abroad by foreigners it is the duty
of the court to construe the statute in accordance with the
law of nations. In section 112, volume 1, of his Criminal
Law, he says:
Doubtless, if the legislature, by words admitting of no interpretation, commands a
court to violate the law of nations, the judges have no alternative but to obey. Yet no statutes
(i. c. in England and the United States) have ever been framed in a form thus conclusive;
and, if a case is prima facie within the legislative words, still a court will not take jurisdiction
should the law of nations forbid.
Discussing, in his work on statutory crimes, the same
subject, he says:
Statutes in terms binding persons beyond the territorial jurisdiction are, in the construc-
tion, restricted where the law of nations limits the right, as extending only to the subjects of
the government legislating. [Stat. Crimes, 2d ed., % 141, p. 129.]
Although the judgment in the civil suit of Field v. Bennett
et al., to which Mr. Romero refers, was a judgment by default,
and has, since the date of his note, been set aside by the
Queen's Bench Division of the Supreme Court of Judicature,
it is proper to advert to the fact that the rules governing the
jurisdiction in civil and in criminal cases are founded in many
respects on radically different principles, and that an assump-
tion of jurisdiction over an alien in the one case is not to be
made a precedent for a like assumption in the other. In the
first place, civil proceedings are instituted only at the suit of
75
private persons for the enforcement of private rights; criminal
proceedings are conducted by the public authority for the
vindication of the national sovereignty and control. In civil
suits, the courts of a nation will enforce foreign laws and foreign
judgments; in criminal matters, it is a universal rule that the
courts of one country will not enforce the laws of another.
Thus in the protection and enforcement of private rights
national boundaries are in a great measure obliterated; while,
in criminal proceedings, they define the only jurisdiction in
which, unless by treaty, the law can be enforced.
Taking these principles into consideration, the case of
Field v. Bennett et al. could not have been regarded as an
authority in favor of extraterritorial criminal jurisdiction, even
if the defendant had come within reach of the process of the
court and the judgment against him had not been reversed
by the Queen's Bench. But, as the case now stands, it cannot
be regarded as a precedent for extraterritorial claims of any
kind.
The facts arel that there had appeared in the New York
Herald, a paper published by the defendant, Bennett, in New
York, and having an office in London and circulating in large
numbers in Great Britain, certain paragraphs alleged by the
plaintiff to be false and libellous, and to have done him great
injury. One of these paragraphs read as follows:
London, Feb. 4, 1885.—Mr. William Abbott, broker and operator, Tokenhouse-yard,
supported by many stockholders of the Anglo-American Cable Company, announces that at
the Friday meeting of the directors of the company he will introduce a resolution to expel
Mr. Cyrus W. Field from the directorship, on the ground that he is unworthy of any position
of confidence and trust.
The other read as follows:
At a meeting of the company (meaning the Anglo-American Cable Company), held last
week, Mr. William Abbott noved that Mr. Cyrus W. Field should not be re-elected. This
worthy philanthropist, it would appear, was concerned with Jay Gould in the issue of Wabash
preference stock, on which sham dividends were paid until the British public had been
induced to buy it, when it fell from 92, the issue price, to about 12. According to American
newspapers, Mr. Cyrus Field made by this operation about one million sterling. In these .
circumstances Mr. Abbott was right in opposing the re-election of this gentleman.
The plaintiff testified that he was a special partner in the
firm of Field, Lindley & Co., the largest shippers of grain
1 See London Times, July 27, 1886.
76
from America to Europe, and having agencies in London,
Liverpool, Glasgow, Bristol, and other British and continental
ports. He was besides director of ten large corporations,
seven of which were in America and three in London. For
some years past he had spent more than half his time in Eng-
land, where he had a great many friends. There was not a
shadow of foundation for either of the libels, and they were
calculated to do him immense injury.
On these facts the jury at the Middlesex sheriff's court,
before which, the judgment having been allowed to go by
default, the case came for the assessment of damages, rendered
a verdict for the plaintiff of £5,000.
The question raised before the Queen's Bench was whether
the defendant had ever been properly brought within the juris-
diction of the English courts. It was admitted that since the
institution of the suit he had not been in England, and the
process was served, not on him personally, but, under an order
of the Court of Appeal, on the other defendant, named Hall,
who acted as Mr. Bennett's counsel in London, and was joined
in the action as a co-defendant. The judgment of the Queen's
Bench Division, consisting of the Lord Chief-Justice Coleridge
and Mr. Justice Denman, was delivered by the Chief-Justice.
In the course of the opinion, he said :1
It is hardly contended before us that this was a case in which service of a writ or notice
of a writ out of the jurisdiction could have been allowed if the application had been originally
made for such service so noticed. The action is for libel; the defendant is neither a British
subject nor in British dominions, and service of a writ therefore upon him is forbidden by the
order. [Referring to order 67, rule 6, and order 11, rules I and 6, regulating service of
process.]
But it is contended that, although the writ itself could not be served,
there may be a substituted service of it ordered under order 68, rule 6. We doubt whether
this rule has any application for service out of the jurisdiction. But if it has, it is limited in
terms to cases where the writ itself can be personally served, as matter of law; but where it
cannot from circumstances be promptly served personally, in matter of fact. It is only in such
cases that substituted service of the writ or the substitution of notice for service is permitted by
the rules. But this is no such case; and it seems to us that in allowing substituted service
the Court of Appeal acted beyond their powers. It follows that all the proceedings, beginning
from and including the order of the Court of Appeal, must be set aside with costs.
It thus appears that the only point decided by this case is
that the process of the British courts has no extraterritorial
force as to foreigners.
See London Times, Dec, 16, 1886,
77
The next argument on the part of the Mexican Govern-
ment is in a communication from Mr. Mariscal to Mr. Romero,
dated the 12th of August, 1886, and transmitted by the latter
to the Department of State on the 30th of the same month.
When this paper was despatched by Mr. Mariscal Judge Zubia
had, as we have seen, just delivered his decision, in which
article 186 was sustained and enforced. Mr. Mariscal, there-
fore, made only a passing, reference to the question of the
breach of the “conciliation,” but proceeded directly to the
defense of article 186, and devoted his observations chiefly to
that subject. The substance of his argument is that the
doctrine that crime is local is peculiar to the common law;
that in countries which have derived their legal institutions
from the Roman system of jurisprudence the territorial prin-
ciple is not acknowledged; that even in England and the
United States there exist important exceptions to the theory
of the common law; and that the question of the punishment
of foreigners for offenses committed outside of the national
territory “depends upon the principle which may have been
adopted touching the competence in general over certain
offenses perpetrated abroad; since it does not seem just to
impose penalties therefor upon citizens and leave the foreigner
in like circumstances unpunished.”
Now, it is true that the territorial theory of criminal juris-
diction is more strictly carried out in England and the United
States than in any other country, because in the common law,
which prevails in both, criminal offenses, whether by citizens
or by foreigners, are considered as purely local. And it
may
readily be admitted that, as Wheaton says in a passage quoted
by Mr. Mariscal, “this principle is peculiar to the jurisprudence
of Great Britain and the United States, and that “even in
these countries it has frequently been disregarded by the posi-
tive legislation of each."
But the simple answer to the inference Mr. Mariscal seeks
to draw from this fact is, that the controversy raised by the
Cutting case is not as to the expediency or inexpediency, or as
to the prevalence or non-acceptance, of the strict local theory of
criminal offenses. When Wheaton says that this principle is
peculiar to the common law, he does not refer to any question
78
of right on the part of a nation to punish foreigners for acts
committed outside of its territory. As we shall hereafter see,
he utterly repudiates the notion that such a right exists in
international law. The idea in his mind was the local
principle of criminal offenses as applied to citizens. This
he called peculiar to the common law. Like Mr. Bishop,
who, as has been shown, also denies the extraterritorial
principle in respect to foreigners, while advocating it in respect
to citizens, Wheaton did not, as will hereafter be seen, doubt
the right of a nation to punish its own citizens for offenses
committed abroad. This is a matter which each nation may
regulate as it deems expedient. The local principle of the
common law is not due to any doubt as to the right of a Gov-
ernment to punish its own citizens, but solely to the manner
in which the criminal branch of that law was developed. The
most ancient part of English criminal legislation was that
which regulated the procedure. The country was divided into
counties, in each of which there were juries, grand and petit.
The grand juries, or jurys d'accusation, were supposed to know
what passed in their own county, and nothing else. They held
to this rule with such rigor that if a man was wounded in one
county and died in another, the criminal sometimes escaped
prosecution, and it was to remedy this defect that the Act of
1549, 2 and 3 Edw. VI., C. 24, was passed, the result of which
was to make the criminal justiciable in either county. (Sir J.
F. J. Stephen, in Journal du droit int. privé, 1887, p. 129.)
It was simply a matter of procedure and convenience involving
no question of sovereign right or of international law, and the
statutory modifications of the ancient practice, which have from
time to time been made in respect to British subjects, have no
significance in the present discussion.
As having relevance to the present case Mr. Mariscal
cites the opinion of the Attorney-General in relation to the
civil suit for damages brought in a Pennsylvania court in
1794 against a Frenchman, then lately governor of Guada-
loupe, for an alleged wrongful seizure and condemnation by
him of a vessel belonging to the plaintiff
. The French minister
asked that the suit might be stopped, not on the ground
79
*
that the defendant, being a foreigner, was not subject to suit on
civil process, but on the ground that, as the act on which
the suit was founded was done by him in virtue of his author-
ity as governor, he was not personally liable to suit for it.
The question having been referred to the Attorney-General,
Bradford, he gave an opinion, saying that "with respect to
his suability, he (the late governor) is on a footing with any
other foreigner (not a public minister) who comes within the
jurisdiction of our courts;" and that “if the circumstances
stated form of themselves a sufficient ground of defense, they
must, nevertheless, be regularly pleaded.'
The bearing of this case on the jurisdictional claim asserted
in article 186 of the Mexican Penal Code is not apparent. As
has heretofore been stated, jurisdiction in civil suits and in
criminal prosecutions rests on different grounds and proceeds
upon opposite principles. While it is a universal principle,
admitted even by those countries which have gone farthest in
the direction of punishing extraterritorial crime, that the courts
of one nation will neither enforce the penal laws nor the
penal sentences of the tribunals of another nation, yet this
territorial circumscription of the operation of law is so far dis-
carded in civil cases that it may be said that the principal
basis of civil responsibility as between persons in different
places is the recognition and enforcement by the courts of one
country, in civil matters, of the laws and judgments of other
countries. So far has this rule been carried that it has lately
been held in England1 that a foreign judgment affecting the
succession to property in that country would be enforced, and
could not be impeached or reviewed there, although it involved
a question of English law which was misconstrued. The civil
liability of man to man is not circumscribed by national bound-
aries; the subjection of a foreigner to the sovereignty of a
state exists only when by his own acts he brings himself within
the territorial operation of its laws.
Mr. Mariscal further argues that the principle of article 186
“is not only in accord with the most authoritative doctrines of
* In re Trufort, before Mr. Justice Sterling, reported in London Times, July 27, 1887; following
decision in Castrique v. Imrie, L. R., 4 H. L., 414; Godard v. Gray, L. R., 6 Q. B., 139.
80
private international law, but also with the positive legislation
of several nations which command respect in such a matter,
such as France and Austria, where such offenses [by foreign-
ers outside of the country] are punished if they have been
committed against the nation; Prussia, where they are all
punished in conformity with the law of the country wherein
they are committed; Bavaria and Norway, without this char-
acteristic and without the requisites and conditions exacted by
our code.” On the question of doctrine he cites by name
Foelix, Voet, Boehmer, Martens, Saalfeld and Pinheiro-Fer-
reira, and says that Fiore might be added by reason of his
general theories. The names of these writers, excepting the
first and the last, are evidently taken from the work of the
first named, Foelix, on private international law, published in
1866, in paragraph 574 of which they are, with the exceptions
stated, given in the order in which they are found in the note
of Mr. Mariscal. This paragraph, after stating that writers are
not in accord on the subject in question, mentions by name
Voet, Boehmer, Martens, Saalfeld and Pinheiro-Ferreira as
advocates of various degrees of extraterritorial jurisdiction
over foreigners; and Schmalz, Abegg, Feuerbach, Homan,
Sumner1 and Rolin as opponents : and adds that Mitter-
maier does not contradict their opinion. It is not singular
that the list of Foelix, published in 1866, and incomplete as it
was then, does not contain the names of many high and recog-
nized.authorities on international law at the present day; nor
that for the same reason Mr. Mariscal should have been led
into the error of citing the legislation of Bavaria and of
Prussia, which has been superseded by the German Imperial
Code of 1872, whose restriction of extraterritorial jurisdiction
over foreigners to offenses against the safety of the state and
coinage felonies has been seen. It will hereafter be shown
that Fiore, while recognizing extraterritorial jurisdiction to
that extent, refuses to admit the international validity of such
a claim as that contained in article 186. Foelix, so far as I
am able to ascertain, expresses no personal opinion on the
1 The author doubtless referred to the opinion of Mr. Justice Story in the case of U. S. v. Davis, 2
Sumner's Rep., p. 482. He refers to the Report, but gives the reporter as the authority.
1
81
despatch of the 13th of August is enclosed a copy of El Foro,
subject; but, although he quotes the codes of Bavaria, Wur-
temburg, Oldenburg, Hanover, Thuringia and Prussia, all of
which, until superseded by the German Imperial Code of 1872,
gave to the tribunals of the state jurisdiction of offenses com-
mitted outside of its territory by foreigners against subjects,
he states, at the end of the paragraph above cited, that "posi-
tive legislations do not, as a general rule, admit the prosecu-
tion of a foreigner charged with crimes or délits in another
state, save only in the case of a violation of law prejudicial
tơ the state (considered as a whole), in the territory of which
the prosecution is undertaken, or when it concerns crimes of
the highest gravity.'
On the 13th of August, 1886, Mr. Mariscal despatched to
Mr. Romero another communication, in continuation of that
of the preceding day, which has just been examined. In this
a legal journal published in the City of Mexico, containing
an article on the Cutting case by Judge José M. Gamboa,
of that city. To this article due reference will be made, after
notice has been taken of the points in Mr. Mariscals despatch.
In continuation of the effort made in his preceding com-
munication to sustain article 186 by the legislative example of
other countries, Mr. Mariscal cites the French law of 1808,
which was replaced by the law of 1866, now in force, but
which, as he states, the latter did not greatly alter. We have
seen how the Court of Cassation at Paris in the case of
Fornage in 1873 construed the law of 1866, and repudiated
the doctrine on which article 186 is bottomed. Turning now
to the provisions of the law of 1808 for the punishment of
foreign offenses, we find them to be as follows:
5. Every Frenchman who is guilty, outside of the territory of France, of an attempt against
the safety of the state, of counterfeiting the seal of the state, national moneys having circula-
tion, national papers, bills of banks authorized by law, may be prosecuted, judged and punished
in France, according to the French laws.
6. This provision may be extended to foreigners who, being authors of, or accomplices in,
the same crimes, shall have been arrested in France, or of whom the Government shall have
obtained the extradition.
7. Every Frenchman who shall have been guilty, outside of the territory of the kingdom,
of a crime against a Frenchman, may, on his return to France, be there prosecuted and punished,
if he has not been judged and prosecuted in the foreign country, and if the offended French-
E. C.- -6.
82
man makes complaint against him. (French Criminal Code of 17 November, 1808, promul-
gated on the 27th day of the same month.)
In respect to offenses committed abroad by foreigners, it is
seen that the provisions of this law are substantially identical
with those of the law of 1866. It further appears that even in
respect to French citizens, provision is made for their punish-
ment for acts done outside of the state only when those acts
amount to a crime (felony), and not when they constitute
merely a délit (or misdemeanor). And so it was held by the
Court of Cassation in 1864 (Fournal du Palais, 1864, p. 404),
in the case of Jacques. Trottet, for reference to which, as well
the case of Fornage, previously cited, I desire to acknowledge
as to my obligations to the Marquis de Chambrun. The
syllabus of this case reads as follows:
When an act referred to the Court of Assizes as constituting a CRIME committed in a
foreign country by a Frenchman against another Frenchman, is reduced by the finding of the
jury to a sin.ple DÉLIT, the Court of Assizes ceases to be competent to take cognizance of it:
Article
7, C. Crim. Procedure, according to the terms of which the Frenchman who is guilty
of a CRIME against a Frenchman in a foreign country can be prosecuted and punished in
France on his return, having no application to the case where the act has only the character of
« DÉLIT.
The facts in the case were that Trottet, a Frenchman, having
been indicted by the grand jury of the Imperial Court of Cham-
béry for a willful assault and battery on another Frenchman,
causing inability to work for more than twenty days, and with
premeditation, which made the offense a crime (felony), the
case was referred for trial to the Court of Assizes of Haute-
Savoie, sitting with a jury. On the trial the jury found the
facts as alleged, except as to premeditation, which their verdict
negatived, thus reducing the offense to a délit (misdemeanor).
And the case having been finally brought before the Court of
Cassation, that tribunal rendered the decision which is sum-
marized in the syllabus above quoted.
With the exception of the brief mention of the French law
of 1808, the rest of Mr. Mariscal's paper of the 13th of August
is almost exclusively devoted to the praise of a draft of a penal
code, a part of which was approved by the Italian Chamber
of Deputies in 1877. This draft was principally the work of
Professor Mancini, a former Italian minister of justice, and has
83
undergone much discussion in Italy, both before and since its
approval by the Chamber of Deputies. But even if it were
identical, in respect to the punishment of foreigners, with
article 186 of the Mexican Penal Code, it could hardly be con-
tended that the doctrine had made much progress in Italy,
where, both before and since its approval by the Chamber of
Deputies it has not only been the subject of continual con-
troversy, but where the work containing it, although begun
more than twenty years ago, remains in effect a mere projet,
and, as is admitted by Mr. Mariscal, is not yet in force.
It is, however, pertinent to observe that in the projet in
question there are important qualifications of foreign jurisdic-
tion, which escaped notice in Mr. Mariscal's paper of the 13th
of August. For the purpose of showing these qualifications
I shall not quote particular provisions of the projet itself, but
shall avail myself of two admirable discussions of it—one by
M. Albéric Rolin, an advocate of the Court of Appeal of Ghent,
and secretary of the Institute of International Law, which was
published in the Revue du Droit International 1 in 1877; and
the other by. M. Fiore, the distinguished authority on inter-
national law and professor of that subject at the University of
Turin, which was published in the same journal2 in 1879. We
learn from these sources that four projets have been discussed
in Italy, which, because of their non-conformity in respect to the
principles of international penal law, have provoked numerous
controversies as to the limits of its extraterritorial authority.
“The first projet," says M. Fiore, “of a penal code is that
which was formulated in 1868 by the commission instituted
for that purpose. That projet was the object, in 1870, of many
modifications by a commission composed of three members.
The Minister Vigliani introduced in it yet other modifications,
and presented it to the Senate on the 24th of March, 1874.
The Senate, after long discussions, modified it again on certain
points. The Minister Mancini presented the fourth draft of
the projet in November, 1876, and the first book has been
adopted by the Chamber of Deputies.” “As to the application
i Vol. ix, p. 461, et seq.
2 Vol. xi, p. 308 et seq.
84
of the penal law on the territory, the four projets conformed,
but in respect to the repression of offenses committed abroad
they differed widely. By article 7 of the projet of 1868, it
was proposed that if a foreigner, after having committed abroad
an offense punishable under the Italian law with imprisonment
at hard labor, or with imprisonment or banishment, should
enter the kingdom, he should, his extradition having first been
offered to and refused by the government where he committed
his offense, be tried and punished according to the Italian law.
And in case of an offense punishable with less than five years
imprisonment, it was provided that a complaint should be
made by the injured party, or by the government of the country
to which the offended person belonged. This theory was
thought by the courts to be exorbitant, and “the court of Parma,
among others,” says M. Fiore, “proposed that the citizen
himself should not be punished for offenses committed abroad,
save for those against the safety or economic life of the state.
In pursuance of those observations, the theory of extraterri-
toriality was modified in all the other projets."
A proposal was made by the Ministerial Commission in
1876 to revive the provisions of article 7 of the projet of 1868.
“But,” says M. Fiore,
the magistracy, the law faculties and the colleges of advocates observed that there could be
no interest in punishing the foreigner who, outside of the country, commits an offense to the
prejudice of another foreigner, and that to meet every peril it would be sufficient to extradite
or expel him. The Minister Mancini, in his projet, did not adopt in an absolute manner
either the one or the other of the two systems; but proposed that prosecutions against the for-
eigner, in the cases in which he was justiciable, should be discretionary and before all
preceded by an offer of extradition, and that, where the offer should not have been accepted
by the government of the place where the crime was committed, the government should be
free either to expel the foreigner from the kingdom, or else to arraign him in case the crime
should be of the number of those prescribed in the convention of extradition, or one of the
crimes against the law of nations, or against persons, property, or public credit, or else
amounting to fraudulent bankruptcy or an outrage on good morals.
Such are the qualifications of the claim of extraterritorial
jurisdiction, as proposed in the Mancini codification. And in
regard to them, M. Rolin, in the article to which I have already
adverted, says:
Crimes and délits committed by a foreigner outside of the territory are not judged and
punished in Italy (by the Mancini projet as adopted by the Chamber of Deputies) save under
a conjunction of exceptional circumstances. It is a great deal that they should ever be. We
85
may say, it is true, that, when the party injured is an Italian subject, when extradition has
been offcred and refused, when the act is punished as well by the Italian as by the foreign lacus,
it would be an outrage for a foreigner to be permitted to reënter Italy as if for the purpose of
defying there its authority. But if we are free to expel him, it would be as hard to apply to
him, for an act committed previously in a foreign country, under the empire of foreign laws,
the penalties pronounced by the Italian laws which he did not know, to which he was not sub-
ject on any ground, and which consequently he could not violate. Neither the system of terra.
torial authority, nor that of the personal authority of the penal law, nor that which combines
both, could justify in such case the action of the national tribunals.
Mr. Mariscal supplements his argument of the 13th of
Augușt with a list of nations whose laws punish to a greater
or less extent extraterritorial crime. To this list reference
will be made hereafter. And I shall now proceed briefly to
notice the argument of Judge Gamboa, without, however, refer-
ring to his citations from Foelix' work of 1866 of laws which
have since become obsolete.
Judge Gamboa's argument opens with a statement of facts,
which it is unnecessary to review, because, for the purposes
of this report, the facts have been accepted as set forth in the
decision of Judge Zubia.
The whole of Judge Gamboa's argument may be summed
up in a single sentence, which he quotes from Foelix, and
which reads as follows:
The competence of the authorities and the form of procedure before them are controlled
by the law of the country where the action is instituted, whatever may be the law under whose
empire have occured the acts which give rise to such action.
As a general proposition this may be accepted as incon-
testable. The competence and forms of procedure of the
judicial tribunals of a country are regulated and defined by
its municipal law. There is no doubt that under the law of Mex-
ico the courts of Chihuahua are competent to try a foreigner
for offenses begun and consummated in his own country against
a Mexican.
But this is not the question raised by the United
States in the case of Mr. Cutting. That question is whether
the provisions of the law of Mexico, as contained in article 186
of the Penal Code, are in contravention of the rules of interna-
tional law. And to this question the Mexican judicial tri-
bunals are
not competent to make a definitive reply.
“According to the rule of law,” said Judge Zubia, “judex non
de legibus sed secundum leges debet judicare, it does not belong
86
to the judge to examine the principles laid down in said arti-
cle 186, but to apply it in all its force, it being the law in force
in the State of Chihuahua.” To this decision the Government
of the United States has made no objection. It has not ques-
tioned the competency of the Mexican court under the Mexi-
can law. But it has held that that law, and consequently all
proceedings under it, are in violation of the principles of inter-
national law.
All the salient points of the Mexican defense have now
been examined, except the list (enclosed in Mr. Mariscals
paper of August 13,) of codes that provide for the punish-
ment of extraterritorial crimes. It will be recollected that it
has already been shown that the jurisdictional claim contained
in article 186 is not sustained by the penal legislation of the
present day. And we have seen how, notwithstanding the
constant appeal, doubtless made under a misapprehension, to
the Code of France, the Court of Cassation has peremptorily
and completely repudiated the notion that, because of the excep-
tional provisions as to crimes against the safety of the state and
against the currency, the French Code could be held in prin-
ciple to assert criminal jurisdiction over foreigners for acts done
outside of France. The principles of public law, so the court
held, did not warrant such a pretension; and that this view is
correct will hereafter be. copiously proved by the opinions of
the highest authorities on international law at the present day.
There being no principle of international law that permits
the tribunals of a nation to try and punish foreigners for acts
done by them outside of the national territory or jurisdiction, it
necessarily follows that any assumption to do so, in respect to
particular crimes, must rest, as an exception to the rule, either
upon the general concurrence of nations, in respect to the crimes
in question, or upon an express convention.
It follows, therefore, that it is not enough to quote, in favor
of article 186, the law of France, or of any other country, whose
legislation makes provision for the punishment of foreigners
who, outside of the national territory and jurisdiction, commit
offenses against the safety of the state, or coinage felonies, or
other particular crimes. It must be shown that article 186 is
87
sustained both in amplitude of extent and in form by a general
concurrence of positive legislation.
This, as we have seen, cannot be done. And it will now
further be shown, .by the list of codes enclosed with Mr.
Mariscal's communication of the 13th of August, that the claim
set forth in article 186, of the right of a nation to punish a
foreigner for an offense committed against one of its citizens
outside of its territory, has been generally abandoned and may
now be regarded as obsolete. The list contains merely the
names of the countries and the dates of the codes cited, quo-
tations from the provisions of some of them being made in the
article of Judge Gamboa. Most of the codes are ranged
under the head of “nations that punish crimes committed in
foreign countries by their own subjects,” and the rest under
the head of “nations that punish, more or less, crimes com-
mitted in foreign countries by foreigners when such foreigners
enter their territory.” But as most of the codes ranged under
the first head, the principle of which is not in dispute, are
repeated under the second head—e. g. the Code of France-
I shall place all in one list, and make, opposite each, appro-
priate explanations.
LIST OF CODES.
COMMENTS.
France, Law of 1866.
Still in force, but punishes only crimes
against the safety of the state, and crimes
of counterfeiting seals of state, national
moneys, etc.
Austria, Code of 1872.
Still in force, but punishes only crimes,
and not délits, and then, except in offenses
against the safety of the state and currency
felonies, only after offer of surrender.
Italy, Code of 1859.
Still in force, but substantially same as
Austrian Code.
Belgium, Law of 3 October, 1836. Replaced by law of April 17, 1878, which
is substantially identical with that of
France of 1866. But the law of 1878
made little change in Belgian jurisdic-
tion, which since 1794 has closely fol-
lowed that of France.
88
Portugal, Code of 1852.
Replaced by law of July 1, 1869, under
which foreign jurisdiction extends only
to Portuguese.
Punishes foreign crimes and délits against
subjects, and is still in force.
Greece, Code of 1834.
Ionian Isles, Code of 1841.
Holland, Penal Code.
(No date given.)
The Dutch Code, which punished for-
eigners for assassination, arson, and cer-
tain other grave and enumerated crimes,
committed abroad against subjects, was
modified by law of January 15, 1886,
which is substantially indentical with
French law of 1866.
Hanover, Penal Code.
(No date given.)
Norway, Code of 1842.
As quoted by Foelix, in 1866, punished
foreigners for offenses committed abroad
against Hanoverians; but this is super-
seded by German Imperial Code of 1872,
which does not recognize this principle,
and confines
jurisdiction of extraterritorial
offenses of foreigners to crimes against
safety of state and coinage felonies.
Same provision as former Hanoverian
law, but prosecution is discretionary with
the Government.
Bears date 1866, and punishes foreigners
for offenses abroad against Russians.
Punished foreigners for offenses abroad
against subjects, but is superseded by Ger-
man Imperial Code of 1872.
Same comment as on Bavarian Code.
Russia, Penal Code.
(No date given.)
Bavaria, Code of 1861.
1
Same.
Same.
Same.
Prussia, Code 1851.
'Würtemburg, Code of 1839.
Saxony, Code of 1838.
Baden, Code of 1845.
Oldenburg, Code of 1814.
Brunswick, Code of 1840.
Hesse, Code of 1841.
German Empire, Code of 1872.
Same.
1
Same.
Same.
See comment on Hanoverian Code.
Placing the Ionian Isles under the Greek system, it is seen
that in the foregoing list there are only two legislative systems
89
now in force which in extent and form sustain article 186; that.
of Russia, of 1866, and that of Greece, formulated in 1834.
As for the rest, such of them as might have been cited to sus-
tain the Mexican claim have been placed by time beyond the
purview of the present discussion, except for the purpose of
showing the rejection of their principle in positive legislation.
Nor is this principle sustained by the legislation of the
Spanish-American republics.
In the Argentine Republic criminal jurisdiction in respect
to foreigners is confined, as in the United States, to offenses
committed where the Republic, or one of its states, has ex-
clusive jurisdiction; save in the exceptional cases stipulated
in treaties wih foreign powers. 1
In Chili the territorial principle prevails, it being provided
not only that foreigners, but also that Chilians, shall not be
punished for crimes or offenses committed out of the territory
of the Republic, save in the cases indicated by the laws. 2
In respect to offenses against the safe:y of the state com-
mitted outside of the Republic, article 106 of the Penal Code
provides as follows:
Any one who, within the territory of the Republic, conspires against its external security
by inducing a foreign power to declare war against Chili shall be punished by imprisonment
in the penitentiary for life. If hostilities have ensued he shall suffer the death penalty.
The provisions of this article shall be applied to Chilians even where the plots to induce
a declaration of war against the Republic have been carried on outside of its territory.
It is thus seen that even in respect to crimes against the
safety of the state the Chilian Code distinguishes between
citizens and foreigners, and punishes the latter only when
they carry on their conspiracies with foreign powers from the
territory of the Republic, and are therefore within its territo-
rial jurisdiction.
As to counterfeiting the currency, securities and certifi-
cates of debt, issued under Chilian law, article 174 of the
Penal Code provides as follows:
Any one counterfeiting the shares or the promises to pay up the shares, of joint stock
companies, bonds or other securities legally issued by municipalities or public etablishments
1 I desire to acknowledge my obligations for a written statement as to the Argentine laws to Mr. Severo
Ygarzábal, of the Argentine Legation. See for specific provisions Codigos y leyes usunles de la Repúlica
Argentina; Buenos Aires, 1884; especially % 77, 78, Penal Code.
2 Article 6 of the Penal Code of 1874.
90
ciple in
of whatever denomination, or interest coupons, or dividends belonging to these various securi-
ties, shall be punished by detention from its intermediate to its highest grade, and by a fine of
from five hundred to a thousand dollars if utterance thereof has been made in Chili, and by
detention in its intermediate grade, and by a fine of from one to five hundred dollars when
the utterance has been in a foreign country.
Here again adherence to strict territorial theories is illus-
trated by the mitigation of the sentence where the utterance
of the forgeries has been effected abroad; so that the punish-
ment shall apply only to what was done within the national
territory, namely, the forgery, and not to its foreign utterance.
Nor does the Penal Code depart from the territorial prin-
respect to libels. On this subject article 425 provides
as follows:
Concerning slanders or insults published by means of foreign newspapers, prosecutions
may be instituted against those who, from the territory of the Republic, have sent the articles,
or given instructions for their insertion, or contributed to the introduction or circulation of
those newspapers in Chili, with the manifest intent to spread the slander or insult.
The Penal Code of Colombia of 1873 follows as to acts
of foreigners committed outside of the national territory, the
lines laid down in the French law of 1866, and in case of
private injuries, confines the jurisdiction over crimes and
offenses to those committed by one native against another.
On these subjects article 77 provides as follows:
Punishment shall be inflicted in conformity with this code, without the plea of ignorance
of its provisions serving to exculpate, on natives and foreigners, who, within the territory of
the Republic, commit any crime or offense, saving as regards the latter class of persons, the
exceptions fixed by international law; on the diplomatic agents of the Republic who commit in
a foreign country any crime or offense, and on the same or any other officials of the Govern-
ment in a foreign country who commit any act of disobedience or unfaithfulness to the said
Government, or any crime or offense in the exercise of their functions; on natives and for-
eigners who, out of Colombian territory, have become guilty as principals, accomplices or
accessories of any crime against the security and tranquillity or the constitution of the Republic;
who have counterfeited or introduced into Colombia counterfeit money of the nation; who
have introduced into the country foreign counterfeit moneys which have legal circulation in
Columbia; who have counterfeited or introduced counterfeit stamps or postage-stamps; who
have counterfeited the great seal of the Republic, or those of the administrative department,
or those which the courts and other authorities use conformably with the law, or instruments
of public credit settled by, or admitted as a debt of, the nation, or bonds, warrants or receipts
of the national treasuries, or other offices of the Treasury Department, which circulate under
the government's guaranty, or the notes of legally incorporated banks; provided that in all
these cases they have not been tried and sentenced in the nation in whose/territory the offense
was committed, and that they have been arrested in Colombia, or the Government has obtained
their extradition.
On natives and foreigners who commit acts of piracy, and are arrested by the Colombian
authorities, provided that they have not been tried and sentenced in another country for the
said crimes:
91
E
On the commanders, officers, crew and marines of national war vessels who commit any
crime or offense on the high seas or on board of their vessel in the waters of a foreign nation :
On the captains, passengers and crew of merchant vessels of Colombia, who commit any
crime or offense on the high seas, or within the waters of a foreign nation, provided that, in
the last case, they have not been tried and condemned in the nation within whose jurisdiction
the offense has been committed :
On natives who have committed any crime or offense against a native in a foreign coun-
try, provided that they have not been tried and condemned for the said offense or crime in
the nation in which it was committed, and provided that being in Colombia the action has
been commenced against them by the parties interested in conformity with the law.
In respect to the law of Costa Rica, I find in Orozco's
"Eléments of the Criminal Law of Costa Rica,”1 published
in San José in 1882, the following statement:
The jurisdiction of the courts is thus limited to the territory of the nation, since offenses
committed by natives of Costa Rica or foreigners outside of its jurisdiction are not subject to
the punishments of the Penal Code. All the codes of the world recognize this theory, and
ours declares it by saying that “crimes and offenses committed out of the territory of the
Republic by Costa Ricans or foreigners shall not be punished in Costa Rica except in the
cases provided by the law.”2
The exception to which this article refers, in harmony with the laws of other nations, is
none other than the crimes or offenses committed by Costa Ricans or foreigners against the
external safety of the Republic. As this class of offenses directly affects the independence and
sovereignty of the nation, all legislators have conceded to the courts of the injured state the
right to try and punish them whatever may have been the place of their commission, and
without paying any attention to the question whether the latter belongs to a foreign nation,
belligerent or neutral.
The collection before me of the laws of Peru is very incom-
plete, and I am therefore unable to speak with certainty as to
recent legislation in that country. But in the Penal Code of
1863 the territorial principle was observed; and in respect to
offenses by foreigners against the safety of the state, jurisdic-
tion was confined to those who were in the Republic at the
time of their criminal activity. (Article 114.)
The only assertion I have discovered in Spanish-American
legislation (after a necessarily imperfect examination of it,) of
the principle of article 186 of the Mexican Penal Code, is in
the law of Venezuela, which provides for the punishment,
under certain conditions; of foreigners who, having, outside of
the territory, committed against a Venezuelan the crime of
arson, of murder, of robbery, or any other crime subject to
extradition, shall come to reside in the Republic. (Seijas’
Spanish-American Int. Law, vol. I, p. 526 et seq.: Caracas,
1 See p. 15 of work quoted.
2 Article 6.
92
1884.) This provision, it is true, is neither identical in extent
nor in form with article 186, because the offenses that fall
under the Venezuelan law are fewer in number and more
restricted as to grade, than those that are reached by the
Mexican statute; and the element of residence is lacking in
the latter. I am unable, however, to see that this element
affords ground for a distinction in principle between the Ven-
ezuelan and the Mexican law. The mere residence of a for-
eigner in a state to which he owes nothing but local allegiance
cannot be conceded to create a retroactive criminal responsi-
bility there for his previous conduct in other jurisdictions.
OPINIONS OF PUBLICISTS.
1
1
*
*
It will now be shown that the pretension of a state to punish
foreigners for offenses committed by them against its citizens
outside of the national territory is condemned by the leading
authorities on international law. In this relation I shall first
cite Fiore, who, in his Droit International Privé, says:
Each state possesses and exercises, exclusively, jurisdiction over its own territory-
1. Over all persons found there, whether citizens, naturalized persons, or foreigners. ***
Jurisdiction extends outside-
1. Over certain places assimulated to territory, in pursuance of special conditions;
2. Over certain acts done outside the territory, in certain specified cases.
The right which pertains to every sovereign as regards his own citizens (allegiance,
sujétion, sudditanza) and in virtue of which he may require obedience of them, is certain and
uncontested.
This is not to be understood in the sense that the sovereign of a state may coerce his own
citizens to obey when they are in the territorial domain of another sovereign, or that he may
there exercise imperium and jurisdictio. That would involve a parallel exercise of two juris-
dictions within the same territory. Nevertheless a sovereign may, when his own citizens
return to their native country, require them to render an account of their infractions of the laws
which govern them, even if such infractions were committed in a foreign country; and when
there is occasion therefor he may punish them, in case the right violated in a foreign country
was protected by the national penal law.
The rights of jurisdiction of territorial sovereignty as regards foreigners are exercised in
the same manner as they are in regard to natives, so long as such foreigners reside within the
territory of the state. They are in fact considered as temporary subjects. “A foreigner," says
Mangin, “ becomes subject to the law of a country to which he goes; he is subject to the
public power of that country. This is a principle of public law which is admitted among all
nations."
What does not, however, appear to us to be clear, is the theory of those authors who would
seek to extend the rights of territorial sovereignty over foreigners to the points of attributing to
that sovereignty the full competence to put them on trial for any offense whatever, in whatever
*
*
*
1 2nd ed., Paris, 1885, vol. i, page 408, et seq.
93
*
*
country committed. They say that their theory rests on the principle that important offenses
infringe the rights of all mankind, and that, in consequence, every sovereign power has the
right to punish them, on the sole condition of having the culprit in its power. "The penal
laws,” says Pinheiro-Ferreira,“ do not punish the culprit because he has cast a stigma on this
or that country by his crime, but because, in committing it, he has attacked, in the person of
his victim, the whole human race; he is, therefore, justiciable by all tribunals, and, wherever
he be, the public ministry should make it its duty to bring him before the judicial power of
the country whose laws and whose magistrates he has insulted by flattering himself that,
through the impunity they might accord to him, they would become the accomplices of his
crime."
It seems to us that each sovereign power has the right to provide for the preservation of
order in its own country and for the protection of the rights recognized and proclaimed by the
constituted authorities as appertaining to the citizens of the state, with regard to the actual
circumstances of the time and the place where they may be found; but we do not believe it
allowable to regard the social powers as the mandataries of God, or that they have the power
to punish invasions of the moral law. We do not thereby refuse to admit the principles of the
moral law or to recognize that grave crimes are in contravention thereof; but we do not believe
that human judges possess positive criteria for exactly estimating the moral wrong and pro-
porttoning the penalty to the aggression against the moral law.
Now, in admitting the theory of Pinheiro-Ferreira and those who share his views, a con-
tradiction is inevitable, because, on the one hand, it cannot be admitted that the tribunals of a
state can adjuge and punish by the application of the foreign law which has been violated, for
it is contrary to the independence of sovereign states to execute each other's penal laws; and,
on the other hand, those tribunals themselves could not apply the law of their own state, if that
state did not possess the authority necessary to compel obedience from the accused in a foreign
country, for we cannot admit that a rule of action may be violated which was not obligatory
in the place where the offense was committed.
Fiore refers for a more explicit discussion of this subject
to his work entitled Droit Pénal International. Adverting, in
the second chapter of that work, to the theory that an individual
is protected in all places by the laws of his country, and that
consequently the tribunals of that country may take cognizance
of acts committed to his prejudice in another state, he says:
We cannot admit that doctrine, for it does not seem to us that the extraterritoriality of
penal law ought to depend on the quality of the person to the prejudice of whom the offense
has been committed.
The learned author regards as punishable, when committed
outside of the state, offenses against the safety of the state and
against the public credit, and certain other offenses against
rights which may be considered as protected by the laws of
the state, whether committed by citizens or by foreigners. But
in respect to other offenses he expressly declares that “no
sovereign can exercise his repressive power on territory under
the dominion of another sovereign.i
1 Droit Pénal International, Paris, 1880, p. 94; Droit International Privé, ed. 1885, sec. 493,
94
Phillimore says:
1
The general rule, Foelix remarks, adopted by the positive legislation of states on this sub-
ject, which is one of public law, is to permit the criminal prosecution of a foreigner on account
of crimes committed in another state only in those cases in which either the state in which the
prosecution is to be carried on has been in its collective capacity injured by the crime, or in
which the crime has been of the gravest kind (de la plus haute gravité). The effect of this
rule is to make the criminal law of a state a personal statute to its subjects, traveling with
them, and inseparably attached to them, wherever they happen to be; and such is the doctrine
of Paul Voet and others. It was the opinion of Bartolus that if, and when, a state did take
cognizance of crimes committed by foreigners in a foreign state, it must proceed according to
the criminal law of that state - Ut possit contra eum procedi et puniri secundum statuta silu
civitatis ; a proposition sufficiently impracticable, it should seem, to prove the wisdom and
justice of abstaining allogether from such experiments.
Wheaton says:
2
The judicial power of every independent state, then, extends, with the qualifications men-
tioned,—3
1. To the punishment of all offenses against the municipal law of the state, by whomso-
ever committed, within the territory.
2. To the punishment of all such offenses, by whomsoever committed, on board its public
and private vessels on the high seas, and on board its public vessels in foreign ports.
3. To the punishment of all such offenses by its subjects, wheresoever committed.
4. To the punishment of piracy, and other offenses against the law of nations, by whom-
soever and wheresoever committed.
It is evident that a state cannot punish an offense against its municipal laws, committed
within the territory of another state, unless by its own citizens.
Hall, a late and very able English authority, says:
Whether laws of this nature (punishing foreigners for offenses committed abroad) are
good internationally; whether, in other words, they can be enforced adversely to a state which
may choose to object to their exercise, appears, to say the least, to be eminently cloubtful. It
is indeed difficult to see upon what they can be supported. Putting aside the theory of the
non-territoriality of crime as one which rinquestionably is not at present accepted either uni-
versally or so generally as to be in a sense authoritative, it would seem that their theoretical
justification, as against an objecting country, if any is alleged at all, must be that the exclusive
territorial jurisdiction of a state gives complete control over all foreigners not protected by
special immunities while they remain on its soil. But to assert that this right of jurisdiction
covers acts done before the arrival of the foreign subjects in the country is in reality to set up
a claim to concurrent jurisdiction with other states as to acts done within them, and so to
destroy the very principle of exclusive territorial jurisdiction to which the alleged rights must
appeal for support. It is at least as doubtful whether the voluntary concession of such a
right would be expedient except under the safeguard of a treaty. In cases of ordinary crimes
it would be useless, because the act would be punishable under the laws of the country where
it was done, and it would only be necessary to surrender the criminal to the latter. I
Story, in his work on the Conflict of Laws, says:
5
14 Phillimore, p. 707.
2 Page 180, Dana's cdition.
3 These qualifications relate to the extraterritorial privileges of foreign sovereigns, ambassadors, and other
privileged persons, who are exempted from local allegiance.
4 Hall's International Law, 2d ed., 1884, p. 190.
5th ed., 1857, p. 984 et seq.
95
& 620. The common law considers crimes as altogether local and punishable exclusively
in the country where they are committed.1 No other nation, therefore has any right to punish
them; or is under any obligation to take notice of or to enforce any judgment rendered in
such cases by the tribunals having authority to hold jurisdiction within the territory where
they are committed.2 Hence it is that a criminal sentence of attainder in the courts of one
sovereign, although it there creates a personal disability to sue, doos not carry the same disa-
bility with the person into other countries. Foreign jurists; indeed, maintain on this particular
point a different opinion, holding that the state or condition of a person in the place of his
domicile accompanies him everywhere. Lord Loughborough, in declaring the opinion of the
court on one occasion said: “ Penal laws of foreign countries are strictly local, and affect
nothing more than they can reach, and can be scized by virtue of their authority. fugitive
who passes hither comes with all his transitory rights. He may recover money held for his
use, and stock, obligations and the like, and cannot be affected in this country by proceedings
against him in that which he has left, beyond the limits of which such proceedings do not
extend.” Mr. Justice Buller, in the same case, on a writ of error, said: “It is a general
principle that the penal laws of one country cannot be taken notice of in another.” The same
doctrine was affirmed by Lord Ellenborough in a subsequent case. And it has been recently
promulgated by Lord Brougham, in very clear and authoritative terms. “ The lex loci,” says
he, “must needs govern all criminal jurisdiction from the nature of the thing, and the purpose
of the jurisdiction."
% 621. The same doctrine has been frequently recognized in America. On one occasion,
where the subject underwent a good deal of discussion, Mr. Chief Justice Marshall, in deliv-
ering the opinion of the Supreme Court, said: “ The courts of no country execute the penal
laws of another."8 On another occasion, in New York, Mr. Chief- Justice Spencer said: “We
are required to give effect to a law (of Connecticut) which inflicts a penalty for acquir-
ing a right to a chose in action. The defendant cannot take advantage of nor expect the court
to enforce the criminal laws of another state. They are strictly local, and affect nothing more
than they can reach."4 Upon the same ground, also, the Supreme Court of Massachusetts
have held that a person convicted of an infamous offense in one state is not thereby rendered
incompetent as a witness in other states. [So, in a late case in chancery, a foreigner in
England was not allowed to withhold certain documents, whose production was sought by a
bill of discovery, upon the plea that their contents would render hii liable to the penal laws
of his own country; they having no such effect in England, and the courts of the latter country
having no regard to the penal laws of a foreign state.]
% 622. The same doctrine is stated by Lord Kames as the doctrine in Scotland.
6. There
is not,” says he, “the same necessity for an extraordinary jurisdiction to punish foreign delin-
quencies. The proper place for punishment is where the crime is committed. And no society
takes concern in any crime but what is hurtful to itself.” 7
& 623. The same doctrine is laid down by Martens as a clear principle of the law of
nations. After remarking that the criminal power of a country is confined to the territory, he
adds: “ By the same principles a sentence, which attacks the honor, rights, or property of a
criminal, cannot extend beyond the courts of the territory of the sovereign who has pronounced
it. So that he who has been declared infamous is infamous in fact, but not in law. And
the confiscation of his property cannot affect his property situated in a foreign country. To
1"Crimes," said Lord Chief Justice De Gray, in Rafael v. Verelst, 2 Wm. Black, R. 1058, "are in their
nature local, and the jurisdiction of crimes is local."
? Rutherf. Inst. B. 2, ch. 9, 12; Martens, Law of Nations, B. 3, ch. 3, 22 22, 23, 24, 25; Merlin, Réper-
toire, Soéveraineté, & 5, 11. 5, 6, p. 379 to 382 ; Commonwealth v. Green, 17 Mass. R., 575, 545, 546, 547, 548.
3 The Antclope, 10 Whcat. R. 66, 123.
- Scoville v. Canfield, 14 Johns, R. 338, 340. See also The State v. Knight, Taylor's N. C. Rep. 65.
* Commonwealth v. Green, 17 Mass. R. 515, 540, 541, 546, 547. [Contra in North Carolina, State v.
Chandler, 3 Hawks, 393; Chase v. Blodgett, 10 New Hampshire, 22.]
King of Two Sicilics v. Wilcox, 1 Simons, N. S. 301.
? Kames on Equity, B. 3, ch. 8, %1. Scc also Ersk. Inst. B. I, tit, 2, P. 23.
96
deprive him of his honor and property judicially there also would be to punish him a second
time for the same offense."
2624. Pardessus has affirmed a similar principle. In all the states of Christendom (says
he) by a sort of general consent and uniforinity of practice, the prosecution and punishment of
penal offenses are left to the tribunals of the country where they are committed. The prin-
ciple of the French legislation that the laws of police and bail are obligatory upon all, who are
within the territory, is a principle of common right in all nations.” Bouhier also admits the
locality, or, as he terms it, the reality of penal laws; and of course he limits their operation to
the territory of the sovereignty, within which they are committed.1
& 625. On the other hand Hertius and Paul Voet seem to maintain a different doctrine,
holding, that crimes committed in one state may, if the criminal is found in another state, be
upon demand punished there. Paul Voet says: Statutum personaie ubique locorum personam
comitatur, &C., etiam in ordine ad poenam a cive petendam, si poena civibus sit imposita.
And he, as well as some others of the foreign jurists, enters into elaborate discussions of the
question, whether, if a foreign fugitive criminal is arrested in another country, he is to be
punished according to the law of his domicil, or according to the law of the place where the
offense was committed. If any nation should suffer its own courts to entertain jurisdiction of
offenses committed by foreigners in foreign countries, the rule of Bartolus would seem to fur-
nish the true answer, Delicta furniunter juxta mores loci commissi delicti, et non loci ubi de
crimine cognoscitur.
Bar, the distinguished professor of law in the University
of Göttingen, who, since the first publication of his work on
International Law in 1862, has seen the extraterritorial pre-
tensions of the German States, which he condemned, swept
away by the Imperial Code of 1872, defines 2 four theories of
criminal jurisdiction of which the first three are as follows:
1. The theory that a criminal statute is limited to the terri-
tory for which it was enacted, and that any act committed in
another country is beyond its influence.
2. The theory that the criminal law of a state applies not
only to crimes committed there, but also to those committed
by its citizens abroad.
3. The theory that preposes to extend still further No. 2,
and lay down that the state has a right to protect itself and its
subjects from injury, and is therefore privileged to visit any
injury with punishment.
On the third theory, Bar says:
But although it is true that the protection of persons and property is secured by criminal
law, the right to punish does not flow from the right to protect : the latter may justify any
20.
i Bouhier, Cout. de Bourg. ch. 34, p. 588. See also Matthaéi, Comm. ad Pand. Lib. 48, tit. 20, $ 17, 18,
Mr. Hallam has remarked: “The death of Servetus has, perhaps, as many circumstances of aggravation
as any execution for heresy that ever took place. One of these, and among the most striking, is, that he was
not the subject of Geneva, nor domiciled in the city, nor had the Christianissima Restitutio been published
there, but at Vienne. According to our laws, and those, I believe, of most civilized nations, he was not answer-
able to the tribunals of the Republic.” Hallam's Introduction to the Literature of Europe, vol. 2 (Lond. edit.
1839), cap. 2, 227, p. 109.
2P. 626 et seq., Gillespie's translation, Edinburg, 1883.
97
+
measures of defense or self-defense, but gives no right to correct. But even if a law of pun-
ishment could be derived from the right of defense and self-defense, yet, since the obligation
to protect by punishment lies, in the first instance, upon the state in which the injured parties
are, such a law would be subsidiary only, and the state whose permanent subjects those
injured persons are, would primarily have no share in the matter, beyond supporting all other
states in applying their criminal law.
A union of such divergent principles (territoriality, personality and right to protect) must,
at the same time, lead to the most manifold doubts and the most irreconcilable results. * * *
Butí as regards the right of the state to punish foreigners who may commit in a foreign
country acts prejudicial to the state or its subjects, it is to be remembered that foreigners are
not bound to pay any heed to the ways and means which our state takes to attain the aim of
its being ; indeed, it may be that, as is the case in uncivilized states, they have views diamet-
rically opposed to ours as to the means by which the individual may be perfectly developed
within the state. If we propose to compel foreigners to respect our laws in their own country,
this is simply to declare that the regulations by which we attain the final end of our state' are
the only justifiable regulations, and to extend the territory of the state beyond its bounds.
To this we must add that there is no obligation on a foreign state to suffer the presence
of our subjects within its territory, and even if there were a complete obligation of such a
kind, it could only be pressed against the state itself by means of public law, not against its
individual subjects by means of criminal law. The foreign state has to fix under what condi-
tions it will suffer the presence of our subjects within its territory, and what rules it will
prescribe for the intercourse of its permanent or temporary subjects with our subjects.
As regards the case of an act which is prejudicial to a private person who belongs to our
state, there cannot even be any considerations of expediency urged for the extension of the
criminal law in such a case. Every civilized state punishes common crimes without caring
whether they have been committed upon a foreigner or a native subject.
Field, in his International Code, proposes the following
rules:
643. The criminal jurisdiction of a nation extends to foreigners —
1. Who commit theft beyond its limits, and bring, or are found with, the property stolen,
within its limits; or,
2. Who, being beyond its limits, abduct or kidnap, by force or fraud, any person, con-
trary to the laws of the place where such act is committed, and send or convey such person
within the limits of the nation, and are afterwards found therein; or,
3. Who, being within its limits, cause, or aid, advise or encourege, another person to
commit any act, or be guilty of any neglect within the sāme, which is a criminal act or neglect
according to the laws of the nation, and who are afterwards found within its limits.—Penal
Code, reported for New York, Sec. 15.
644. The criminal jurisdiction of a nation extends also to foreigners found within its
jurisdiction who have committed at any place beyond its territorial limits, either as principals
or accessories, any of the following infractions of its criminal law :
1. A crime against its national safety; or,
2.'Counterfeiting or forging its national seal, national papers, national money having
currency within its limits, or bills of any bank authorized by its laws.
These provisions are taken from the law of June 27, 1866, amending articles 5, 6, and 7
of the French Criminal Code, vol. 9, p. 557.
Wharton, in defining, in his work on the Conflict of Laws,
different theories of criminal jurisdiction, says:2
(6.) That penal jurisdiction belongs to the country of arrest, provided such jurisdiction be
necessary for the prevention of crime. That this view cannot be logically maintained is argued
I.P. 654, edition referred to.
2 2nd ed., 1881, 809.
E. C. 7.
98
at large in another work, whose positions cannot, for want of space, be here recapitulated.
(Whart. Crim. Law, Sth ed., %% 2, et seq.)
(c.) That penal jurisdiction belongs to the country of arrest, provided such jurisdiction
is necessary to protect or indemnify parties injured. So far as concerns the question of pre-
vention this position is blended with the last. So far as concerns jurisdiction for the purpose
of binding over a dangerous person to keep the peace, it is what has always been exercised
by justices of the peace under the English common law. Every justice of the peace is author-
ized by that law to require such persons, on cause being shown that injury to persons or things
is justly to be apprehended from them, to give bail for good behavior, or, in default of such
bail, to be committed to prison. The claim, however, put forward in this connection by sev-
eral codes, goes beyond this. It assumes that criminal jurisdiction is based on the right of a
sovereign, in order to protect his subjects from injury, or to indemnify them for injuries sus-
tained, to penally prosecute the offender, whether he be subject or alien, or whether the offense
was committed at home or abroad. Aside, however, from the objections noticed under the
last head to the assumption of penal jurisdiction over aliens for offenses committed abroad
against their own sovereigns, there are two special difficulties in the way of the reasoning on
which this particular claim is advanced. In the first place, the right of protection, as such,
justifies, not punishment of others, but simply defense of the party endangered. Secondly, to
urge protection or indemnity as a ground of jurisdiction involves, as Bar acutely observes, a
petitio principii. To assume that a sovereign has jurisdiction because one of his subjects is
injured by the defendant, is to assume the defendant's guilt, concerning which it is the object
of the procedure to inquire. And once more, if the government can only intervene to protect
or indemnify subjects, a large class of offenses must go unpunished; such as those against
foreigners, or those in which joint defendants, as in case of some sexual crimes, are equally
guilty of the common wrong.
It is proper here to advert to the views of President Wool-
sey, as expressed in his work on International Law, which has
been quoted against the position of the Government of the
United States in the case under consideration. I shall quote
from the last (the fifth) edition, revised and enlarged, as pub-
lished in 1883. `In $ 76, which contains the passages that have
been cited to sustain the Mexican law, the author says:
Each nation has a right to try and punish, according to its own laws, crimes committed
on its soil, whoever may be the perpetrator. But some nations extend the operation of their
laws so as to reach crimes committed by their subjects upon foreign territory. In this pro-
cedure municipal law only is concerned, and not international; and, as might be supposed,
laws greatly differ in their provisions. (1) One group of states, including many of the German
states, some of the Swiss cantons, Naples (once), Portugal, Russia and Norway, punish all
offenses of their subjects, committed in foreign parts, whether against themselves, their sub-
jects, or foreigners, and this not in accordance with foreign but with domestic criminal law.
(2) At the opposite extreme stand Great Britain, the United States and France, which, on the
principle that criminal law is territorial, refrain from visiting with penalty crimes of their sub-
jects committed abroad.
The same difference of practice exists in the case of crimes committed by foreigners in a
foreign country against a state or one of its subjects, who are afterwards found by the injured
state within its borders. England and the United States seem not to refuse the right of
asylum, even in such cases. France punishes public crimes only, and such as Frenchmen
would be liable for, if committed abroad. (See this & above.) So Belgium and Sardinia, but
the latter state also, in the case of wrongs done to the individual Sardinian, first made an offer
*
*
99
matter.
-
of delivering up the offending foreigner to the forum delicti, and if this was declined, then
gave the case over to its own courts. Many states, again, act on the principle that it is right
to punish a foreigner as a subject for foreign crimes against themselves or their subjects.
Nearly all states consider foreign crimes, against foreign states or their subjects, as beyond
their jurisdiction. A few reſuse sojourn on their soil to such foreign wrong-doers. A few go
so far as to punish even here, in case the party most nearly concerned neglects to take up the
Thus Austria, if an offer of extradition is declined by the offended state, punishes and
relegates the criminal.
From this exposition it is evident (1) that states are far from universally admitting the
territoriality of crime. (2) That those who go farthest in carrying out this principle depart
from it in some cases, and are inconsistent with themselves. To this we may add (3) that the
principle is not founded on reason, and (4) that, as intercourse grows closer in the world,
nations will the more readily aid general justice. Comp. & 206.
This section (206) is connected in its line of reasoning with
section 20a, from which I will quote the following passage:
There must be a certain sphere for each state, certain bounds within which its functions
are intended to act, for otherwise the territorial divisions of the earth would have no meaning.
In regard to the right of punishing in any case outside of the bounds of the state there may
be rational doubts. Admitting, as we are very ready to do, that this is one of the powers over
its subjects, we can by no means infer that the state may punish those who are not its subjects,
but its equals. And yet, practically, it is impossible to separate that moral indignation which
expresses itself in punishment from the spirit of self-redress for wrongs. As for a state's having
the vocation to go forth, beating down wickedness, like Hercules, all over the world, it is
enough to say that such a principle, if carried out, would destroy the independence of states,
justify the nations in taking sides in regard to all national acts, and lead to universal war.
In section 20b are found the following passages:
The inquiry, whether a state has a right to punish beyond its own limits, leads us to the
more general and practically important inquiry, whether a state is bound to aid other states in
the maintenance of general justice, that is, of what it considers to be justice. The prevalent
view seems to have been that, outside of its own territory, including its ships on the high seas,
and beyond its own relations with other states, a state has nothing to do with the interests of
justice in the world. Thus laws of extradition and private international law are thought to
originate merely in comity. * This is the most received, and may be called the
narrow and selfish view. On the other hand, the broad view, that a state in getting justice
done everywhere, if its aid be invoked, and even without that preliminary, would occasion
more violence than could'thus be prevented.
It is thus seen that while the learned author in § 76 criti-
cises the doctrine of territoriality as “not founded on reason,
in § 20a, he says:
In regard to the right of punishing in any case, 1 outside of the bounds of the state, there
may be rational doubts. Admitting, as we are very ready to do, that this is one of the powers
of the state over its subjects, we can by no means infer that the state may punish those who
are not its subjects but its equals.
The fair and just inference from these contrasted proposi-
tions is that, when in $ 76 the learned author criticised the
territorial principle as unreasonable, he was considering it
i These are the learned author's italics.
I00
solely in connection with the theory of personal jurisdiction,
as applied to citizens or subjects of a state. 'Even on this
supposition it is going a great way to characterize the territo-
rial theory as unreasonable. It may not be expedient always to
apply the strict rule of territoriality to citizens, but so general is
the recognition of the reason of the doctrine that among the
legislative systems in force to-day that punish extraterritorial
offenses of citizens, there is, as we have seen, scarcely one,
if any at all, that does not impose important limitations and
conditions upon the exercise of the power. And it is not too
much to say that until the conditions of time and space shall
have been overcome, and humanity shall have realized the
millennial dream of the obliteration of national boundaries,
and the unification of legal systems following the extinction of
all diversity of creeds and aspirations, the penal law will con-
tinue to be essentially territorial.
The grounds of the territorial theory of criminal jurisdic-
tion have been stated by Sir G. C. Lewis in a passage so re-
markable for clear, condensed and cogent reasoning that it is
well to quote it in this place. It reads as follows: 1
The system of tying the entire criminal law of a country round the neck of a subject, and
of making him liable to its operation, in whatever part of the world he may be, converts the
criminal law into a personal statute, and puts it on the same footing as the law respecting
civil status. Now the personal statute of one country, in civil matters, is recognized by another,
so that there is no conflict of laws. But if the criminal law were a personal statute a foreigner
would at the same time be subject to two criminal laws—the criminal law, of his own state and
that of the state of his domicile. No text-writer and no state disputes the rule that all foreign-
ers in a country are subject to its criminal law.
The received rule as to the territoriality of criminal law rests on a sound basis. The
territorial sovereign has the strongest interest, the greatest facilities, and the most powerful
instruments for repressing crimes, whether committed by native-born subjects or by domiciled
aliens in his territory. But a sovereign government, which pursues its subjects into foreign
countries, and keeps its criminal law suspended over them, attempts a task in which, even if
undertaken with earnestness, it is sure to fail; but which will probably be performed in a care-
less, indifferent, and intermitling manner. A government has no substantial interest in punish-
ing crimes in the territory of another state; it has not on the spot officers of justice to discover
and arrest the criminal; the transport of witnesses to a distance is a troublesome and costly
operation; the difference of language, law, and customs creates further impediments. A fail-
ure of justice, and an acquittal, is therefore likely to occur, even if the utmost diligence is
used; but it may be assumed as certain that, unless some special motive exists, little diligence
will be used. A government would feel, with respect to offenses committed abroad in a civil-
ized country, that it was, at the best, undertaking a work of supererogation; perhaps that it
was interfering in a matter which, as the law of the place provided for it, would most properly
1 Foreign Jurisdiction, p. 29 et seq.
IOI
>
be left alone. The experience of this and other countries shows that a criminal law applicable
to offenses committed in foreign lands (such as the act of 33 Hen. 8 and 9 Geo. 4) is for the
most part a brutum fulmen, and that it is rarely carried into execution. The slumber of the
law is therefore in practice a sufficient security to the native subject against its oppression.
But if a government was to set to work vigorously to execute such a system of foreign criminal
law as that which is embodied in the Austrian and Prussian codes, the sense of insecurity would
infallibly lead to loud complaints, and the legislature would be urged into the adoption of a
less ambitious course. Guilty men might occasionally be brought to justice; but innocent men,
charged.with the commission of crimes in distant parts of the world, would be almost incapable
of defending themselves against the accusation and of proving their innocence. Even an
educated person, provided with money and friends, might find it difficult to extricate himself
from such a position; but a poor, uneducated, friendless man might be almost at the mercy of
a false accuser. Such a law, if a government afforded funds and encouragement for its enforce-
ment, might be a formidable weapon in the hands of unscrupulous malignity.
It may, therefore, be laid down as a general principle, resting on grounds of the most
enlarged expediency, that a criminal law ought to be local; that the sovereign ought to enforce
it with respect to all crimes committed within his territory, and in national ships upon the
high seas; but should not seek to apply it to crimes committed in the territory or ships of other
civilized states.
But although, in explanation of the generalizations at the
close of $ 76 of President Woolsey's work, which appear to
have had reference solely to the question of punishing the
extraterritorial offenses of citizens, I have quoted his express
condemnation elsewhere of the pretension of a state to punish
foreigners for offenses committed abroad, it is necessary to
notice the statement made in the same section that “many
.states, again, act on the principle that it is as right to
punish a foreigner as a subject for foreign crimes against
themselves or their subjects.” It is observed that the only
legislative systems referred to in this section, (except those
of Great Britain, the United States, France, Portugal, Russia,
Belgium, Holland and Norway, of which only Russia
and Norway, and the latter not in an absolute manner,
assert a right to punish foreigners for offenses committed
abroad against citizens or subjects,) are those of “many of the
German states, some of the Swiss Cantons, Naples (once)” and
Sardinia. The citation of the legislation of these states, which
are the “many states” referred to, is accounted for by the
learned author's statement, made in a note to $ 76, that the facts
therein set forth "are drawn from an essay, by R. von Mohl,
in his Staatsr. Völkerr. u. Politik., vol. I., 644-649." This
volume was published in 1860, and, as it antedated the
unification of Italy and the formation of the German Empire,
102
quoted the then independent legislation of Sardinia, and of
Hanover, Oldenburg, Prussia, Baden, Saxony and Coburg.
It fails, however, to notice the Swiss Federal law of 1853,
and cites many ancient cantonal statutes long antedating the
formation of the Swiss Confederation.
Aside, however from President Woolsey's specific declara-
tions of opinion, adverse to the right, which § 76 of his work
has sometimes been quoted to sustain, of a nation to punish
the extraterritorial offenses of foreigners, it would be difficult
to find a stronger condemnation of such a pretension than is
contained in $ 77, which relates to extradition. In this section
he says:
:
The considerations which affect the question, what a government ought to do in regard
to fugitives from foreign justice, who have escaped into its territory, are chiefly these: First,
that no nation is held to be bound to administer the laws of another, or to aid in administer-
ing them; secondly, that it is for the interest of general justice that criminals should not
avoid punishment by finding a refuge on another soil, not to say that the country harboring
them may add thereby to the number of worthless inhabitants; thirdly, that the definitions of
crime vary so much in different nations that a consent to deliver up all accused fugitives to
the authorities at home for trial, would often violate the feeling of justice or of humanity;
and fourthly, that truth can be best ascertained and justice best administered near the forum
criminis, and where the witnesses reside. There is also a substantial agreement among the
most civilized nations in regard to proof and to penalty in criminal law. Some have con-
tended for an absolute obligation to deliver up fugitives from justice; but (1) the number of
treaties of extradition shows that no such obligation is generally recognized, else what need
of treaties giving consent to such extradition, and specifying crimes for which the fugitive
should be delivered up. (2.) It may be said that the analogy of private international law
requires it. . If a nation opens its courts for the claim of one foreigner on another, and in so
doing applies foreign law to the case, why should it not open them for claims of a foreign
government against violators of its law? But the analogy fails. In private claims the basis
of right is admitted with a general agreement by the law of all states. In public prosecution
of criminals different views of right are taken, as it respects offenses, method of trial and
degree of punishment.
Every consideration advanced by the learned author in
respect to extradition is in direct antagonism to the claim of
article 186 of the Mexican Penal Code. Extradition ought to
be granted, so he argues, because it is for the interest of
general justice that criminals should not avoid punishment by
finding a refuge on another soil, and because truth can be
best ascertained, and justice best administered, near the forum
criminis, and where the witnesses reside:-all of which is sound
territorial doctrine. But at the same time we are to consider
that to consent to deliver up all accused fugitives to the
103
authorities at home for trial would often violate the feelings
of justice and humanity!
To apply this argument to the case of Mexico, there exists
between the United States and that country a reciprocal treaty
of extradition, under which each government has agreed to
deliver up to the other, persons who, after judicial examination,
shall be found to have been duly charged with the commis-
sion, within the jurisdiction of the demanding government, of
certain offenses enumerated in the treaty; but in no case is
either government required to deliver up its own citizens.
Among the offenses enumerated in the treaty, libel, the offense
with which Mr. Cutting was charged, is not found. Hence
the claim made by the Mexican Government in the Cutting
case, under article 186 of the Penal Code, is not only to try and
punish, according to its laws, a citizen of the United States
(whose extradition could in no case have been required under
the treaty), for an offense committed in his own country, but
to try and punish him for an offense for whïch the surrender
of a Mexican could not have been demanded by his govern-
ment, even if he had committed it on Mexican soil. Surely
such a claim may be said to "violate the feelings of justice and
humanity.”
Heffter, in his work on the International Law of Europe,
says:1
As regards criminal jurisdiction the following principles are in the main to be recognized :
I. It can only extend
a. To crimes and offenses committed in the country by a person, whether native or for-
eigner, being in the said country;
6. To crimes committed in a foreign country by a subject against the laws of his own
country, which are binding on him even in a foreign land.
While the second proposition is in theory often not admitted, and all right to inflict
punishment in the case of offenses committed abroad denied to the state, yet the practice of
individual states goes even further and permits each, by almost universal acknowledgment, to
pụnish all those crimes which are committed by a foreigner in a foreign country against its
existence and most important political interests. Formerly the exercise of the office of punish-
ing on behalf of another perfectly competent state, when commissioned by the latter, was not
regarded as inadmissible. Yet the constitutional principle which now prevails is opposed to
this, namely, that no one should be withdrawn from the jurisdiction of his natural, i. his
constitutional judge.
This work was first published in Germany in 1844, and new editions, with changes and additions to
keep it abreast of the times, were issued in 1848, 1855, 1861, 1867, and 1873. Translations of it were published
in France in 1857, 1866, 1873, and 1883, the last edition being copiously annotated by Geffcken. Heffter, who
was a professor in the University of Berlin, an attorney for the crown, and a counsellor of the Suprcmc, Court
of Justice at Berlin, died in 1880. I quote from 36 of the last German edition.
log
104
.
In support of the principles thus stated, Heffter refers to
his work on Criminal Law, published in 1854, in which1 he
sustains his position with great clearness and conclusiveness
of argument and with ample citation of authorities. He also
refers to M. Faustin Hélie's Traité de l'instruction criminelle,
and to’an opinion of the law faculty of Halle, given in 1832,
in which it was held that, in order to render a person crimi-
nally liable for his conduct, there must be an obligatio ex lege,
which does not exist in the case of a foreigner outside of the
national jurisdiction. Like Bar, who still survives, Heffter
lived to see the pretension of many of the German states to
punish foreigners for offenses committed outside of the state
against subjects, disappear before the Imperial Code of 1872.
In the great work of M. Faustin Héliea, the subject of
foreign jurisdiction is discussed with almost unequalled elabor-
ation and completeness. And after arguing that, in respect
to crimes against the safety of the state, the right of self-defense
may be invoked to justify their punishment, he says that this
argument cannot be extended to extraterritorial offenses by
foreigners against citizens, for the following reason :3
The state to which the injured citizen belongs cannot invoke the right of defense, for its
safety is not compromised by a private crime committed on one of its citizens; it cannot invoke
the trouble caused by the presence of the criminal on its territory, for that is a matter for ex-
pulsion. And then, how is it possible to apply to that foreigner a law which did not govern
him at the moment of the perpetration of the act ? How can it be made to retroact to a
period in which it could not touch him, since he was a foreigner and the crime was committed
in a foreign country?
The question is examined by the learned author in all its
bearings, and no ground whatever is found to justify the exer-
cise by the state of such jurisdiction.
Pradier-Fodéré, the learned editor of. Grotius, founder and
honorary dean of the faculty of political and administrative
sciences of the University of Lima, and honorary professor in
the school of political science at Paris, in his recent work on
Public International Law, European and American, says:4
1840.—Should the penal law of a state punish crimes committed outside of the territory
of that state by foreigners against its own citizens? We must admit, at the outset, that it is
1%
X 25-27, inclusive.
Traité &c., vol. 2, 2% 127, 128.
3 Id. p. 591.
4 Traité de Droit International Public Européen et Américain suivant les progrés de la science et de la
pratique contemporaines par P. Pradier-Fodéré, Paris, 1887, vol. 3, $ 1840.
105
1
the duty of the local sovereignty whose territory has been the scene of the crime to act first;
this is demanded in the interest of the success of the preliminary examination, in the interest
of the exemplary repression of crime, nay, in the interest of the proper administration of jus-
tice, for, in the locality in which the crime was committed the public will better appreciate the
various circumstances which accompanied it, the consequences to which it has given rise, and
the grounds of aggravation, hitigation, or of excuse that may exist; the seriousness of the social
disturbance caused will also be more accurately measured in that locality. The territorial com-
petence of the penal law becomes to such an extent obligatory, owing to its advantages, and the
principle that a criminal act should be punished in the place where it is committed is so dom-
inant that the state whose citizen or subject has been injured would have good ground to offer
to the state in whose territory the crime was committed the extradition of the perpetrator of
that crime, in case of his having taken refuge on the soil of the victim's country. It may
happen, however, that the foreign state to which the criminal belongs, and in whose territory
the crime was committed, refuses to prosecute, or that its judicial institutions furnish no guar-
antees.
Is a state that has been injured in one of its citizens then theoretically authorized to bring
the guilty party to trial, if it has him in custody.? The affirmative is taught by those philoso-
phers who think that crimes should be considered as a violation of universal law, and that any
jurisdiction is competent to repair the disturbance caused by them in the moral order of
society; it is likewise maintained by those authors who consider that penal jurisdictions are
instituted for the protection of those under them, by legally repressing unlawful acts of which
they may be the victims, and the state to which the injured parties belong resumes all its
rights, and should secure, as far as possible, the judicial repression which is indispensable to
the security of those citizens when the authorities of the foreign country in which they have
been the victims of a crime do not protect those who dwell in or cross the territory of that
country, thus disregarding the reciprocity of protection and the solidarity of reparation and
justice that should be a bond between civilized states. “ Is it not a spectacle revolting to
conscience and reason," said Bonjean," to see this foreigner, who, after murdering a French-
man on the soil of one of the neighboring states, comes to seek an asylum in the very country
of his victim, insulting by his presence and his impunity the legitimate grief of the relatives
and friends of the murdered man?"1
These observations are certainly entitled to weight, but they cannot prevail against con-
siderations which are not less weighty. As a general rule, with very few exceptions, the law,
· as well as penal jurisdictions, is territorial, and the laws or customs under which the guilty
party lived at the time when he committed the crime, cannot be set aside. How can we
admit that a foreigner ought to be punished for having violated laws which he was in no way
bound to obey ? “I am obliged to obey the laws when I live under the laws, but when I do
not live under them can they still be binding upon me?"2 “It does not seem to us,” says
Pasquale Fiore, “ that the extraterritoriality of penal law ought to depend upon the quality
(citizenship) of the person to whose detriment the offense was committed. It is true that a
man is born a citizen of a given country, and that he is subject, as such, to the social power
of his native land, which, by its laws, secures to him the free exercise of his rights, and that
he should everywhere be protected by the sovereignty of his country. On the other hand,
however, he may remove from his country and enter the territory of another state; he may
submit to a foreign social power, which, by right, takes the place of the social power of his
native country as regards the protection of the persons and property of those who, living within
the territory that is subject to it, have become its temporary subjects.”
It will be observed that if a crime committed in a foreign country were due to the nation-
ality of the victim, if it consequently menaced exclusively the safety of persons belonging to
1 Bonjean, Report on the bill relative to crimes committed in a foreign country, p. 34.
2 Montesquieu, Persian Letters.
3 Pasquale Fiore, Treatise on penal international law, Antoine's French translation, 1880, No. 81, p. 88.
Io6
that nationality, and if it remained unpunished, or even without sufficient repression, this
would be a subject for diplomatic representation. (V. supra, nos. 1363 et seq.)
OPINION OF THE INSTITUTE OF INTERNATIONAL LAW,
The subject of criminal jurisdiction received the early
attention of this learned association, and in a report1 by M.
Brocher, of the University of Geneva, at the annual meet-
ing of the Institute in Paris in September, 1878, the follow-
ing conclusions were stated;
(1.) The general principles of criminal law, and the exigen-
cies of a good administration of repressive justice, unite in
establishing, so far as is practicable; the supremacy of terri-
torial jurisdiction.
(2.) This jurisdiction covers all acts which invade rightş in
the territory of each particular state.
(3.) The criminal jurisdiction of a state is not limited to
cases in which the perpetrator was, at the time of the offense,
on the soil of such state. It should extend to acts which,
transpiring abroad, affect domestic peace and order.
(4.) This extension of territorial jurisdiction is correlative
to facts which present themselves in various aspects. Among
these may be mentioned, (I) a shot on one side of a boundary
taking effect on the other side; (2) swindling letters issued
from one country and operating in another; (3) poisonous
food sent into a foreign land addressed to a specific person;
(4) forgery of commercial paper meant to operate extrater-
ritorially; (5) treason and political offenses by subjects abroad,
counterfeiting of public money and other securities; (6) acts
committed abroad to elude home law, such as a duel arranged
within the territory to take effect outside; (7) accessory help
and co-conspiracy in cases in which the principal offender acts
intra-territorially; (8) acts penetrating to the moral core of
the state, such as bigamy, incest or adultery committed by:
two subjects abroad; (9) acts of piracy, and other acts of a
similar class committed on the high seas or in barbarous
lands on the ground that each state has territorial rights in
such regions.
1 Annuaire de l'Institut for 1880, pp. 50 et seq.: Wharton's Conf, of Laws, % 810; 1 Crim. Law Wag.,
691 (1880).
107
1
1
(5.) Simple residence in a country gives territorial juris-
diction of all things done by such resident in such country;
though not of things done by him before his arrival.
(6.) Domicile, as distinguished from residence, does not
usually impose subjection by the domiciled person to the state
for acts done when he is absent from the state.
(7.) Nationality, in certain states, is a basis of criminal
jurisdiction; all persons who are members of a nationality
being subject, wherever they may be, to the laws of the
nationality to which they belong. Such nationality, however,
is not to be considered as a personal law, binding a citizen of
a nation to obey its laws wherever he may be. Its extra-
territorial effect should be limited to special cases; as, for
instance, those in which the order of a state is assailed by its
subjects abroad, and it has no other means of redress.
When this report came up for discussion at Brussels in
1879, it was advocated by its author, who claimed that
each state, besides territorial, was entitled to exercise a
quasi-territorial jurisdiction, authorizing it to assume, in all-
matters relative to its public order and security, jurisdiction
over persons in foreign lands; and he cited several examples
to show that this jurisdiction could be sustained on neither
the territorial nor the personal theory. It is true that in
this way an offense might be subjected to two jurisdictions,
that of the country where the crime takes effect, and that of
the country where it is concocted --but for this purpose a
hierarchy of jurisdiction should be recognized, to be graduated
as follows: Where the act is concocted and takes effect ex-
clusively in a particular territory, that territory should have
jurisdiction; if in two territories, then the territory of concoc-
tion, as well as of execution, should have jurisdiction.
Professor von Bar replied that the scheme proposed would
give each state almost universal jurisdiction, which would
endanger the authority of other countries, as well as the
security of individuals.
Mr. Westlake took the ground that the claim by a state of
a right to punish the subjects of other states for acts committed
by them outside of its territory, derogates from the•security
7
108
a.
which a foreigner admitted within such territory ought to
enjoy; and that this pretension would give rise to diplomatic
collisions. He admitted the right of a state to punish for acts
done on its' territory, and also for acts done by its citizens
abroad. An individual, he argued, is punished for violating
the law of the country in which he lives, because he is bound
to know this law; he cannot be punished for violating a foreign
law, which he is not bound to know.
Prof. Goos, of the University of Copenhagen, also thought
that M. Brocher went too far. He did not deny the compe-
tence of the state to prosecute for all the cases enumerated in
the report. But he gave to the right of the state a different
basis. He admitted the territorial competence and the per-
sonal competence; he rejected everything that went beyond
that. Such was the system of the Danish Code of 1866, and
it sufficed perfectly for the national security.
The president, M. Rolin-Jacquemyns, a Belgian jurist and
statesman of eminence, and minister of the interior, questioned
whether, in addition to territorial and personal jurisdiction, a
third scheme, the quasi-territorial, could be recognized.
M. Asser, of Amsterdam, a professor of law in that city,
and author of several learned papers on international law, did
not think that the question should be presented in so absolute
a manner. There were cases where a foreigner outside of the
territory of the prosecuting country commits an attempt against
that country; such is, for example, the case of a conspiracy
against the safety of the state. Would they argue that in such
case foreigners could not be prosecuted? He was convinced
that MM. Westlake, de Bar, and Goos did not wish to go so
far; they could without being illogical admit here an exception,
since the prosecuting state would definitively limit itself to
exercising the right of legitimate self-defense. Besides, the
prosecuted delinquent has committed an attempt, intentionally
and knowingly, against the safety of the state, and violated
laws which he knew.
Mr. Westlake and M. Goos refused to admit such an excep-
tion.
Prof:von Bar conceded that there would be jurisdiction in
109
the attacked state when the state in which the offender resides
will not interfere.
Prof. Neumann, of the University of Vienna, urged that
public safety is a sufficient ground for punishment. The
Austrian Code went still further, authorizing Austrian courts
to punish a foreigner, resident in Austria, for an offense com-
mitted by him in a state which refuses to make a demand for
his extradition.
The following proposition by Prof. von Bar was adopted
by a vote of 19 to 7:
Each state has the right to punish for acts committed outside of its territory by foreigners,
in violation of its penal laws, when these acts constitute an attack (atteinte) on the social
existence of the state, compromising its safety, and which are not cognizable by the penal law
of the country where they take place.
The president then put the question whether the "quasi-
territorial” jurisdiction assumed was to include other acts than
those determined by the proposition of Prof. von Bar—that is
to say, whether a state can punish a foreigner who commits
abroad offenses against its laws other than those designated
in that proposition. This was answered in the negative by a
vote of 17 to 9.
The subject came before the Institute for final resolution
at its session in Munich in September, 1883, under the presi-
dency of the Baron Holtzendorff, on a report presented by
Dr. von Bar and M. Brusa. There were present at this ses-
sion M. Arntz, professor in the University of Brussels; Dr.
von Bar, of the University of Göttingen; M. Brusa, of the
University of Turin; Dr. von Bulmerincq, a privy counsellor,
and professor at the University of Heidelberg; M. Clunet, of
Paris, manager of the Fournal du droit international privé;
M. Gessner, of Berlin; Prof. Goldschmidt, of the University of
Berlin; Prof. Holland, of the University of Oxford; Baron
Holtzendorff, of the University of Munich; M. Lueder, pro-
fessor at the University of Erlangen; M. Marquardsen, mem-
ber of the Reichstag of the German Empire, professor at the
University of Erlangen; M. Martens, of the University of Saint
Petersburg; M. Moynier, of Geneva ; Baron Neumann, pro-
fessor at the University of Vienna, member of the Chamber of
ΙΙΟ
Peers; M. Pierantoni, professor at the University of Rome,
Senator of the Kingdom of Italy; M. Renault, professor of law,
of Paris; M. Rivier, professor at the University of Brussels;
M. de Stein, of the University of Vienna; Sir Travers Twiss,
of London; Mr. Westlake, of London; Prof. A. V. Dicey, of
Oxford; M. Harburger, of the University of Munich; Count
Kamarowsky, of the University of Moscow; Prof. Koenig, of
the University of Berne; M. Lehr, counsel to the embassy of
France in Switzerland, of Lausanne; Prof. Lyon-Caen, of the
faculty of law and the school of political science, Paris; Prof.
de Martitz, of the University of Tubingen; M. de Montluc,
counsellor to the court of Angers; M. Perels, of Berlin; M.
Prins, professor at the University of Brussels; M. Roszkowski,
of the University of Léopol, Galicia; M. Sacerdoti, of the Uni-
versity of Padua.
Prof. Brocher had made a supplementary report at the
session of the Institute at Oxford in 1880, but the question of
extraterritorial jurisdiction, which was adjourned at the session
at Brussels, was not formally discussed at Oxford, nor at the fol-
lowing session at Turin. . But, at the latter place, MM. de Bar
and Brusa were charged with the preparation of a report which
the former presented at the meeting at Munich in 1883. The
report contained fifteen propositions, covering the whole
ground of criminal jurisdiction. But, although it would be of
great interest to give them in full, together with the discussion
upon each, I shall confine myself to such features as are strictly
pertinent to the present question.
The report, in the first place, adopted as the basis of
criminal jurisdiction the territorial principle. On this subject
Prof. von Bar, in a separate report accompanying the proposi-
tions, said that history taught that penal law was derived from
the law of revenge. In remote times the party injured pursued
the criminal, and either slew him or accepted a ransom. At
that epoch the difference between an intentional and an unin-
tentional offense vanished. This point was clear; it was
useless to give proofs; it was known to everyone who studied
at all the history of law, or possessed any knowledge of the
usages and manners of savage peoples of our own times. The
III
great problem, however, of criminal law at the present day is
to measure the injury according to the culpability of the agent.
But there arise difficult questions of morality, of the influence
of the mental condition, etc.
And there also arises,
he continued
that other question, that of the competence of the penal law, it being admitted in our day
that no one ought to be punished if he cannot know the penal law which punishes the act
of which he is to undergo the penalty.
As it is clear that in general it is only when a person sojourns in a country or is a citizen
of it that he can have knowledge of its penal laws, or else, if knowledge of the law is not
regarded as necessary, be imbued with their fundamental moral principles, according to the
fundamental principle of culpability itself the competence of the penal law ought to be con-
fined to acts committed in the territory or committed by citizens abroad. It may be said in
reply that in the case of a sojourn more or less momentary in a foreign territory, where an
individual of foreign origin does not or may not know the laws of the place where he sojourns,
and that even in the case of a citizen sojourning in a foreign country, yet always preserving
his nationality, there may be no knowledge of the national laws. These are very exceptional
cases, in reference to which it is not possible to make the laws. But if the state wishes to
punish acts committed by foreigners outside of its territory, it can do so only by discarding
the principle of culpability and holding itself competent only on the principle of vengeance
attenuated by humanitarian considerations. It is only in exceptional cases, of most urgent
necessity, that the state ought to reserve to itself the right to punish acts committed abroad by
foreigners.
In respect to the punishment of extraterritorial offenses
by citizens, the 7th resolution reported by MM. de Bar and
Brusa, read as follows:
Each state reserves the right to punish its citizens according to the penal laws of the
nation. But, in general, it does not punish the acts of citizens committed abroad when those
acts are not punishable by the law of the place. In punishing the acts of citizens committed
abroad the state applies the penalty of the foreign law, if it is lighter. There are excepted
from these rules the cases mentioned below in proposition eight.
The 7th proposition, after various objections, was displaced,
and the following amendment, proposed by Mr. Westlake,
was adopted in its stead:
Each state reserves the right to extend its national penal law to acts committed by its
citizens abroad.
Proposition 8, which was intended to define the permissible
extraterritorial jurisdiction over foreigners, read as follows:
Each state may punish, independently of the law of the place of activity of the culprit,
and of his nationality, all violations of law against its own political security.
Equally by simple exception, in view of a practical necessity, and on condition of an ex-
press and formal sanction, the state may punish certain other acts committed in a foreign
country, even when the territorial legislation does not consider these acts as punishable, or
when it assures conditions reputed excessively favorable for its citizens.
II2
MM. de Neumann and Prins wished to add the words,
against the political and economic safety, the public credit
forming an essential element of the life of the state.
M. de Montluc objected to the words “economic safety”
and "public credit.”
Dr. von Bar, yielding to the opinion of MM. de Neumann
and Prins, proposed to add the words, crimes against the public
credit..
MM. Renault, Lyon-Caen and de Montluc proposed to
strike out the word political.
Dr. von Bar then withdrew his amendment and went back
to the terms of the resolution presented at Brussels in 1879,
which, as has been seen, read as follows:
Each state has the right to punish for acts committed outside of its territory by foreigners
in violation of its penal laws, when these acts constitute an attack (atteint) on the social ex-
istence of the state, compromising its safety, and which are not cognizable by the penal law
of the country where they take place.
This resolution was adopted by a large majority, and with-
out modification.
A final negative was given to M. Brocher's proposition
for a distinct ground of territorial jurisdiction, which was dis-
cussed at the session of 1879 as quasi-territorial. This neg-
ative answer was embodied in the following resolution, which
was submitted to the Institute in the report of MM. de Bar
and Brusa:
The penal justice of a country in the territory of which, according to the intention of the
guilty person, the effects of his activity are, or ought to be, realized, is not competent by reason
of those effects alone.
This resolution was adopted apparently without objection
or division.
The argument of Dr. von Bar, in support of the reso-
lution, and against the general quasi-territorial jurisdiction
proposed by M. Brocher, was that to hold a man in all cases
criminally liable in every place for the mere effects there of
acts done in other countries, would not only be fraught with
general danger to individuals, but would give room for vexa-
tions and extortions. No one could be sure of not committing
an offense according to a foreign law, of not being unexpect-
edly arrested on a voyage, or of not having his fortune and
.
113
his credits seized in a foreign land. He would have to consult
the codes, the special laws even, of every country in the world.
Police and fiscal laws, he said, seem constantly on the increase,
and the rules applied in them are naturally more or less arbi-
trary. A merchant writing a letter to a foreign correspondent
and offering merchandise, could, for having written that letter,
or for not having paid for a stamp, be brought before a foreign
tribunal. The writer, the publicist, conforming to the laws of
his country and of the place of publication, ought to dread to
be prosecuted before foreign tribunals, which would perhaps
rate a frankly-spoken word as an injury, and a scientific work
as blasphemy.
We have now seen that the claim made in article 186 of
the Mexican Penal Code of a right to punish foreigners for
offenses 'committed abroad against Mexicans is neither sus-
tained by positive legislation nor warranted by the recognized
and established principles of international law. I shall now
show that the denial of that right in the Cutting case was not
merely supported but required by the traditions of the govern-
ment.
INTERNATIONAL PRECEDENTS.
It has been constantly laid down by the Executive Depart-
ment of the Government of the United States, as a rule of
action, that the criminal jurisdiction of a nation is confined
to acts committed upon its actual or constructive territory.
“We hold,” said Mr. Calhoun, when Secretary of Statel-
that the criminal jurisdiction of a nation is limited to its own dominions and to vessels
under its flag on the high seas, and that it cannot extend it to acts committed within the
dominion of another without violating its sovereignty and independence.
In his note to the Chevalier Hülsemann, of the 20th of
September, 1853, in relation to the case of Koszta, Mr. Marcy
said:
The conflicting laws on the subject of allegiance are of a municipal character, and have
no controlling operation beyond the territorial limits of the countries enacting them. All
uncertainty as well as confusion on this subject is avoided by giving due consideration to the
fact that the parties to the question now under consideration are two independent nations, and
that neither has the right to appeal to its own municipal laws for the rules to settle the matter
in dispute, which occurred within the jurisdiction of a third independent power.2
1 Mr. Calhoun to Mr. Everett, Sept. 25, 1844; Mss. Inst. Great Britain.
2 MSS. Dept. State,
8.
E. C.-
114
Mr. Cass, as Secretary of State, said:
By the laws of nations every independent state possesses the exclusive right of police over
all persons within its jurisdiction, whether upon its soil or in its vessels upon the ocean, and
this national prerogative can only be interfered with in cases where acts of piracy are com-
mitted, which, by the public law of the world, are cognizable by any power seizing the vessel,
thus excluded from the common rights of the ocean.1
The question of extraterritorial jurisdiction was discussed
in Congress in the cases of Warren and Costello, two natural-
ized American citizens, who were tried and sentenced in Dub-
lin, in 1867, for treason felony, on account:of participation in
the “ Jacmel” (Fenian) expedition. It was proved that they
had come over to Ireland in that vessel, and had cruised along
the coast for the purpose of effecting á landing of men and
arms in order to raise an insurrection. At the trial, in order
to connect them with the Fenian conspiracy that existed at
Dublin and to show their animus in cruising along the Irish
coast, evidence was introduced of certain acts and declarations
of the prisoners in the United States. It was ultimately shown
that this evidence was introduced merely in proof of the crim-
inal design with which the prisoners entered the British juris-
diction and of the criminal object of their acts there. But,
while still under the impression that the acts and declarations
in the United States were being made the foundation of a
criminal prosecution in Dublin, the House of Representatives,
on the 15th of June, 1868, adopted a resolution requesting the
President to take such measures as should seem “proper to
secure the release from imprisonment of Messrs. Warren and
Costello, convicted and sentenced in Great Britain, for words
and acts spoken and done in this country,” &c.
The position that the penal laws of a country have no extra-
territorial force was taken by the Department of State, under
the advice of the Attorney General, in the case of Carl Vogt,
in 1873. The facts were that Vogt, a Prussian subject, charged
with the crimes of murder, arson and robbery, committed in
Brussels, Belgium, fled to the United States, from which his
extradition was demanded by the Government of Germany,
under the provisions of the treaty between the United States
and Prussia of June 16, 1852, by which the contracting parties
1 Instruction to Mr. Dallas, Great Britain, February 23, 1859.
115
engaged to deliver up to each other fugitives from justice
charged with certain crimes, including those above mentioned,
committed within the jurisdiction of either party.
Having been arrested, Vogt was brought on a writ of
habeas corpus before Judge Blatchford, sitting in the Circuit
Court of the United States at New York, who held that as the
German Empire made provision by law for the punishment of
its subjects for certain offenses committed outside of the terri-
tory, among which were those specified in the requisition, the
prisoner was liable to extradition. The examination then
pro-
ceeded before the commissioner and Vogt was committed for
surrender.
The case was then referred by Mr. Bancroft Davis, Acting
Secretary of State, to the Attorney-General, who, in an opinion
dated July 21, 1873, held that although, by the law of Germany,
the accused, a German subject, might be justiciable in that
country, yet under the treaty the locus delicti was material, and
unless it was within the jurisdiction of the demanding Govern-
ment, the provisions of the treaty did not apply.
To affirm,
said the Attorney-General,
that the jurisdiction of Germany, by virtue of its own laws for the punishment of crimes, ex-
tends over the territory of Belgium, is equivalent to holding that the same jurisdiction extends
to France, Great Britain, and United States, and indeed to every nation and country of the
world.
* Germany has an undoubted right to punish her subjects, if she chooses, for
crimes committed in Belgium or the United States, but it would not be proper, therefore,
to say that Belgium and the United States are within her jurisdiction; but it would be
proper to say that she has made provision to punish her subjects for crimes' committed
without as well as within her jurisdiction. * * * All nations have jurisdiction beyond
their physical boundaries. Vessels upon the high seas and ships of war everywhere are
within the jurisdiction of the nations to which they belong. Limited jurisdiction by one
nation upon the territory of another is sometimes ceded by treaty, as appears from the
treaties between the United States, Turkey, China, Siam, and other powers. Constructive
jurisdiction may possibly exist in special cases, arising in barbarous countries or unin-
habited places; so that effect can be given to the word “jurisdiction,” as meaning more
than territory, without holding that Germany has jurisdiction over crimes committed in Paris,
London, or Washington. * To recognize the claim of Germany in this case would
establish a precedent that might lead to serious international complications. *
facilitate the punishment of crime is desirable, but the United States cannot, with dignity and
safety, admit that any foreign power can acquire jurisdiction of any kind within their territory
by virtue of its local enactments.
To recognize the claim to jurisdiction accompa-
nying the requisition in this case may open the door to confusion and controversy as to claims
of jurisdiction in other respects made under local laws by foreign governments. The plain
and practical rule upon the subject seems to be that the jurisdiction of a nation is commensu-
*
* To
*
116
rate with, and confined to, its actual or constructive territory, excepting changes made by
agreement; and to this effect are the authorities.
The surrender of Vogt to the German Government was
accordingly refused, and he was subsequently surrendered to
Belgium under a treaty which was afterwards negotiated, but
made retroactive in its terms. In the course of the negotia-
tions, Mr. Fish, adverting, in a note to Mr. Delfosse, the Bel-
gian Minister, to the decision of Judge Blatchford, said:
I deem it proper to say that the laws did not afford an opportunity to invite a revision of
the action of the court in that case by a higher [judicial] tribunal. Had there been such an
opportunity, the President entertains little doubt that the decision would have been reversed;
and the course of reasoning upon which it was founded, and to which you refer, would have
been shown to be erroneous. 1
It may be remarked as a coincidence that in the same year
in which the case of Vogt occurred a precisely similar ques-
tion was determined in the same way by the privy council in
England in the case. of Attorney-General for the Colony of
Hong Kong v. Kwok-a-Sing, L. R., 5 P. C., 179; decided June
19, 1873, only a month before the date of the Attorney-Gene-
ral's opinion in the Vogt case, which contains no reference to
the case of Kwok-a-Sing.
The defendant in this case was one of a cargo of China-
men shipped at Macao on the 30th September, 1870, on a
French vessel, called La Nouvelle Pénélope, bound for Peru,
in South America. On the 4th October, 1870, when at sea,
Kwok-a-Sing, with certain other coolies, killed the captain and
several of the crew of the vessel, and then, taking possession
of her, compelled the remaining seamen to conduct her back
to China, where the coolies landed and abandoned the ship.
Some of them were tried in China. Kwok-a-Sing fled to
Hong-Kong, from whence the Chinese authorities 'asked for
his extradition. .Pursuant to this request, an investigation was
held, which resulted in his commitment for surrender for crimes
and offenses against the laws of China by participating in the
murder of a portion of the crew of the French ship Nouvelle
Pénélope at sea and feloniously seizing a boat of the ship and
landing. The warrant of commitment was issued under
Hong-Kong Ordinance No. 2, of 1850, which was passed to
1 Mr. Fish, Secretary of State, to Mr. Delfosse, August 11, 1873.
I17
carry into effect a treaty between Great Britain and China for
the extradition of Chinese criminals fleeing to Hong Kong,
and which provided for the commitment to prison on probable
cause, with a view to their surrender, of fugitive Chinese
charged with "any crime or offense against the laws of China,
Kwok-a-Sing was then brought before the Chief-Justice of the
Supreme Court of the Colony, who ordered his release on
several grounds, among which was that the demand for extra-
dition must come from the country in which the crime was
committed (citing 1 Phill. Inter. Law, p. 413), which was not
so in the case under consideration, the crime having been
committed at sea on a French ship, and not in China. From
this decision an appeal was taken to Her Majesty in Council,
where the case was heard before Sir J. Colvile, Sir R. Philli-
more, the Lord Justice Mellish, Sir Barnes Peacock, and Sir
Montague E. Smith. The judgment of their lordships was
delivered by the Lord Justice Mellish, who said their lord-
ships had to consider whether there was evidence that Kwok-
a-Sing had been guilty of crimes against the laws of China
within the meaning of the ordinance above referred to. He
was accused of two crimes, murder and piracy.
The alleged murder,
continued his Lordship,
was the murder of a Frenchman on board a French ship, in which Kwok-a-Sing was a passen-
ger, on the high seas. They (their Lordships] have, therefore, to consider whether murder
by a subject of China of a person who was not a subject of China, committed outside the
Chinese territory, is a crime against the laws of China within the meaning of the ordinance,
and they are of opinion that it is not. Their Lordships cannot assume, without evidence, that
China has laws by which a Chinese subject can be punished for murdering beyond the
boundary of the Chinese territory a person not a subject of China. Up to a comparatively
late period England had no such laws. Moreover, although any nation may make laws to
punish its own subjects for offenses committed outside its own territory, still, in their Lord-
ships' opinion, the general principle of criminal jurisprudence is that the quality of the act
done depends on the law of the place where it is done. * * * On the whole, therefore, on
these two grounds -- first, that it cannot be assumed without evidence that there is any law in
China to punish a Chinese subject for a murder committed upon a foreigner within foreign
territory; and, secondly, because, even if it could be assumed that there was such a law, still
this offense, having been committed within French territory, ought to be treated as an offense
against French law, and not as an offense against Chinese law, their Lordships are of opinion
that there was no evidence before the magistrate that Kwok-a-Sing, in murdering the French
captain, committed an offense against the laws of China according to the true construction of
the ordinance.
On this ground their Lordships held that the magistrate's
118
warrant committing Kwok-a-Sing for surrender was illegal and
beyond his jurisdiction, and that the Chief-Justice's order for.
the release of Kwok-a-Sing from imprisonment under the
warrant was right, and ought to be approved.
As an illustration of the international complications to
which the Attorney-General referred in the case of Vogt as
likely to result from extraterritorial pretensions, and as an
example of a denial of such pretensions by one government
to another, we may advert to a remarkable and important
incident in the history of the relations between France and
Great Britain.
On the ist June, 1852, M. Th. Vernier, a deputy of the
Corps Législatif of France, presented, on behalf of a commis-
sioni appointed to examine a projet of a law modifying
articles 5, 6 and 7 of the Code of Criminal Procedure of 1808,
a report recommending a projet which had been adopted by
the council of state and by the commission, and which was
as follows:
Articles 5, 6 and 7 of the Code of Criminal Procedure are abrogated and replaced as
follows:
Art. 5. Every Frenchman who, outside of the territory of France, is guilty of a crime or
a délit punished by the French law, may be prosecuted and judged in France, but only on the
request of the public ministry.
If the crime or délit has been committed against an individual Frenchman or foreigner,
the prosecution and judgment shall not take place before the return of the accused to France.
*
*
*
* 2
ARTICLE 6. The foreigner who, outside of the territory of France, is guilty of a crime,
whether against the public welfare or against a Frenchman may, if he comes into France, be
arrested and judged there conformably to the French laws.
As regards délits, the prosecution shall take place only in the cases and under the condi-
tions determined between France and foreign powers by diplomatic conventions.
All prosecutions cease against a foreigner of whom extradition has been demanded and
obtained.
ARTICLE 7.
When a person has committed a délit, or when the crime has been committed against an
individual Frenchman or foreigner, no prosecution is carried on against the accused French-
man or foreigner, if it appears that he has been definitively judged outside of France for the
same acts, and against an accused foreigner if he establishes the fact that the act does not
constitute either a crime or a délit in the country where it took place.
In respect to those provisions of the projet relating to
*
* 3
| The commission consisted of MM. Charles Laffitte, president; O'Quiv, secretary; Riché, de la
Haiechois, Duboys, de Beauverger and Vernier.
2 The omitted portion refers solely to certain judgments by default.
3 The omitted portion relates only to the competence of tribunals.
119
offenses committed by foreigners outside of France, the report
said:
The extension proposed by article 6 of the projet.is the consequence of that admitted by
article 5. After having accorded to the foreigner as against the Frenchman the protection of
our laws, it is just that, by an equitable reciprocity, we should assure the punishment of pun-
\ishable acts committed by a foreigner against our citizens. Besides, we cannot permit the
soil of France to become a place of refuge or of impunity for the foreigner who, even outside,
shall have attacked French interests. Moreover, it is the arrival of the foreigner in France,
after the crime or délit has been committed by him, that, in creating an interest in the repres-
sion, affords the first condition of the prosecution.
On the roth June, 1852, the corps législatif adopted the
projet reported by M. Vernier, by a vote of 191 to 5.2
The measure then went to the Senate, but was subse-
quently withdrawn by the government.
.
In the debates on the law of 1866, now in force, it was
asserted more than once, and not denied, that the bill of 1852
was withdrawn on account of the opposition of foreign
powers. 3
And in reply to a question by M. Jules Favre, M.
Rouher, Minister of State, admitted that it stopped negotiations
between France and Great Britain for a treaty of extradition.
Turning now to Hansard's Debates in the British Parlia-
ment, we find both these facts fully confirmed.
On the 8th June, 1852, Lord Malmesbury, Minister for
Foreign Affairs, moved in the House of Lords, a second read-
ing of the bill giving sanction to an extradition convention with
France, then lately concluded. The question was generally
discussed, and in the course of the debate Lord Brougham
referred to the bill before the French legislature to give French
tribunals jurisdiction over offenses committed abroad, whether
by citizens or by foreigners.
Lord Malmesbury thought his noble and learned friend
was mistaken. The bill, he thought, was confined to French-
men.
Lord Brougham said that was the way the bill stood when
he last saw it, and he was glad to hear it stated that it was
confined to Frenchmen, which till then he had never heard
alleged.
1 Le Moniteur, 4 June, 1852, p. 832.
2 Id., 10 June, p. 369.
3 Le Moniteur, 31 May, 1866; M. Picard.
I 20
On the 14th June (the French projet de loi was passed
by the corps législatif on the ioth) Lord Brougham arose and
implored Lord Malmesbury, before the next stage of the bill,
to reconsider the propriety of withdrawing the measure, a step
warranted by the change in the French law.
Lord Malmesbury replied that he had already made up his
mind upon the subject. He had come down to the House
intending to announce at the proper time that Her Majesty's
Government thought fit to withdraw the bill at present. He
referred to the mistake into which he had fallen on a previous
evening, which originated in an error.of the person who wrote
the despatch to him, and which the British ambassador at
Paris had desired him to explain. “Before I leave this sub-
ject,” said Lord Malmesbury, “I only wish to state that it would
be extremely dangerous, I think, at the present moment, for
Her Majesty's Government to continue this act of Parliament
under the new law which has been passed in France."
On the 25th June the Marquess of Clanricarde inquired of
Lord Malmesbury whether Her Majesty's Government in-
tended to communicate any correspondence with Her Majesty's
ambassador at Paris, or the French ambassador in London,
concerning the law lately enacted in France, which had caused
the withdrawal of the surrender of criminals bill, and which
was not compatible with the relations at present existing
between the two countries.
Lord Malmesbury replied that he had no correspondence
which he could lay before the House; but that the French
Government had acted in the most friendly and frank manner,
and had no sooner perceived the hostility in the House to the
projet de loi, than they gave him “an assurance that the projet
de loi would not be persevered in.”
The Marquess of Normanbyl expressed great satisfaction
at this announcement, and said he could not sit down without
stating "that during the whole period which he had labored
in endeavoring to maintain amicable relations between the
two countries he had seldom listened to any statement with
greater pleasure than that of the noble Earl with regard to
1 Formerly British Ambassador at Paris, &c., &c.
121
the manner in which the French Government have acted with
respect to the withdrawal of the projet de loi referred to.”ı
Another denial of the right of a nation to punish foreign-
ers for acts done by them abroad was made both by Great
Britain and the United States upon the passage by the Bra-
zilian Chambers in 1875 of the law now in force in Brazil on
that subject, although it is not nearly so extensive and absolute
in its provisions as article 186 of the Mexican Penal Code.
The adoption of the law was first made known to the Govern-
ment of the United States by its Minister at Rio, in a dis-
patch2 bearing date the 20th of August, 1875, and enclosing
a copy of the law. In a later despatch, dated April 20, 1876,
he called the attention of the Department more specifically to
the provisions of the measure, and reported that the British
chargé d'affaires at Rio had been instructed by the Earl of
Derby in a despatch enclosing a copy of an opinion of the
law officers of the crown to notify the Government of Brazil
that Her Majesty's Government could not consent or submit
to any action by Brazil under the law which would punish
British subjects in Brazil for acts done by them either in Great
Britain or in any other foreign country not subject to Brazilian
jurisdiction. 3
To this despatch Mr. Fish, Secretary of State, replied on
May 26, 1876, as follows:
Your despatch, No. 322, of the 20th ultimo has been received. It represents that the
British Government, pursuant to the opinion of the law officers of the crown,
its minister to inform the Government of Brazil that it will not acquiesce in the application of
the Brazilian law to which you refer to acts done by British subjects outside of the jurisdic-
tion of Brazil. This decision may be regarded as obviously sound, and is entirely concurred
in by this Government.
If, therefore, there should be occasion, you will informn the Minister of Foreign Affairs
that we cannot consent to the prosecution or punishment of a citizen of the United States pur-
suant to the objectionable statute adverted to.4
In the same year (1876) this doctrine was again announced
by Mr. Fish in the case of Peter Martin, tried and sentenced
in British Columbia. The circumstances of the case were
that Martin, a naturalized citizen of the United States, was
has instructed
1 See Hansard, 3 series, vol. cxxii, pp. 194-214, 562, 1278–1283.
2 For. Rel., 1875, P. 123.
3 For. Rel., 1876, p. 25.
4 For. Rel., 1876.
122
tried at Laketon, British Columbia, for an assault on an officer
in the execution of his duty, prison breach, and escape from
custody; and, having been found guilty, was sentenced to
fifteen months imprisonment at Victoria, in the same pro-
vince, there being no jail or secure place of confinement
at Laketon. He was accordingly placed in the custody of
constables to be conveyed to Victoria. . A part of the route
taken lay through Alaska, and was traversed by canoe, via
the Stickine River, near the mouth of which, and within
the Territory of Alaska, the party made a landing for the
purpose of cooking food. While they were thus engaged
the prisoner obtained possession of a loaded gun and made a
deadly assault on one of the constables, but was overpowered
and conveyed to Wrangle Harbor, from whence he was taken
by steamer to Victoria.
It having been reported that Martin would be tried at Vic-
toria for this assault, Mr. Fish, on the ad of November, 1876,
wrote to the British Minister at Washington, Sir Edward
Thornton, and after reciting the facts substantially as above
stated, said:
It further appears, from what has been intimated by the consul [of the United States, at
Victoria), that Martin will be fully committed for this assault, and that his case will be given
to the grand jury, where a true bill will most likely be found against him, and that the case
then will come up in the Supreme Court some time during the present month.
From the facts presented in the case, it is suggested that the person in question should
not be tried for the offense with which he is charged, it having been committed, as is reported,
within the jurisdiction of the United States, and that, such being the case, he should be set at
liberty.
I will, therefore, thank you, at your earliest convenience, to call the attention of Her
Majesty's proper authorities to the matter, in order that a thorough examination of the facts
in the case may be made.
On the roth of January, 1877, Mr. Fish addressed another
note to Sir Edward Thornton, informing him that a despatch
had been received from the consul at Victoria, stating that
Martin had been tried there before the Hon. P. P. Crease, a
justice of the Supreme Court of the province for the assault
committed on the Stickine River, and had been found guilty
and sentenced to one year and nine months imprisonment at
hard labor, to take effect after the expiration of the term
of fifteen months to which he was sentenced at Laketon.
The consul's despatch further stated that as the evidence at
1 2 3
the trial was conflicting as to the precise distance of the
scene of the assault from the mouth of the Stickine, and as
the boundary line between the British and American territory
was not definitely marked the judge charged the jury that, ,
under these circumstances, the court had either jurisdiction
or concurrent jurisdiction, and that the proceedings were just
To this line of argument Mr. Fish answered,
first, that if the colonial officers, in transporting Martin from
Laketon to Victoria conducted him at any time within and
through the unquestioned territory of the United States, they
committed, in so doing, a violation of the sovereignty of the
United States, which rendered his further detention unjusti-
fiable. And in respect to the question of jurisdiction of the
assault he said:
and proper.
'I must not allow this question to pass without entering an explicit dissent from the doc-
trine which seems to be advanced by the learned judge who presided at the trial of Martin,
that jurisdiction or concurrent jurisdiction vests in Her Majesty's colonial authorities or courts
over offenses committed within any part of the Territory of Alaska, even though so near to the
treaty line that uncertainty or doubt may exist on which side of such line the offense is com-
mitted. It cannot, I think, be necessary to argue this point, or to do more than record this
dissent and denial of a doctrine which, I have no doubt, Her Majesty's Government agrees
with me in repudiating. 2
On the 25th of September, 1877, the British chargé d'af-
faires at Washington addressed a note to Mr. F. W. Seward,
Acting Secretary of State, saying:
I have the honor to inform you that I have just learned from the Deputy Governor of
Canada that the Dominion Government has concluded the inquiry into the circumstances of
the case, and has decided upon setting Peter Martin at liberty without ſurther delay.
In his annual message of the 6th of December, 1886, the
President defined the position of the United States on the
jurisdictional question involved in the Cutting case, as fol-
lows:
The admission of such a pretension would be attended with serious results, invasive of
the jurisdiction of this Government, and highly dangerous to our citizens in foreign lands;
therefore I have denied it, and protested against its attempted exercise, as unwarranted by the.
principles of law and international usages:
A sovereign has jurisdiction of offenses which take effect within his territory, although
concocted or commenced outside of it; but the right is denied of any foreign sovereign to
punish a citizen of the United States for an offense consummated on our soil in violation of
our laws, even though the offense be against a subject or citizen of such sovereign. The
Mexican statute in question makes the claim broadly, and the principle, if conceded, would
i British and Foreign State Papers, vol. 68, pp. 1227-1228.
I 24
create a dual responsibility in the citizen, and lead to inextricable confusion, destructive of
that certainty in the law which is an essential of liberty.
When citizens of the United States voluntarily go into a foreign country they must abide
by the laws there in force, and will not be protected by their own Government from the con-
sequences of an offense against those laws committed in such foreign country; but the watchful
care and interest of this Government over its citizens are not relinquished because they have
gone abroad; and if charged with crime committed in the foreign land a fair and open trial,
conducted with decent regard for justice and humanity, will be demanded for them. With
less than that this Government will not be content when the life or liberty of its citizens is at
stake.
Whatever the degree to which extraterritorial criminal jurisdiction may have been formerly
allowed by consent and reciprocal agreement among certain of the European states, no such
doctrine or practice was ever known to the laws of this country or of that from which our in-
stitutions have mainly been derived.
In the case of Mexico there are reasons especially strong for perfect harmony in the
mutual exercise of jurisdiction. Nature has made us irrevocably neighbors, and wisdom and
kind feeling should make us friends.
The overflow of capital and enterprise from the United States is a potent factor in assist-
ing the development of the resources of Mexico, and in building up the prosperity of both
countries.
To assist this good work all grounds of apprehension for the security of person and prop-
erty should be removed; and I trust that in the interests of good neighborhood the statute
referred to will be so modified as to eliminate the present possibilities of danger to the peace
of the two countries.
Three causes have operated during the present century to
diminish extraterritorial pretensions in criminal matters: (1)
The growth of the idea of nationality and of national equality;
(2) the development and extension of commercial intercourse;
(3) the more general recognition and performance by independ-
ent states of their rights and duties under international law.
The first cause has operated to produce a clearer appre-
hension of the objects of national existence and of the bounds
of national authority; the second has rendered more apparent
the necessity of personal immunity from vexatious and unjust
prosecutions under foreign and unknown laws; the third has
made governments more ready to abandon assumptions of
authority which infringe the rights of other sovereign powers.
The infliction of punishment involves an exercise of power;
and power implies subjection. This principle holds good in
public as well as in private affairs. The punishment by one
state of the citizen of another for an act for which he was
solely answerable to the laws of the latter, or even for an
act for which he was not answerable to the laws of the former,
is a public wrong:
I 25
*
For a nation to hold its penal laws to be binding on all
persons within the territory of another state, is to assert a
right of sovereignty over the latter, and impair its independ-
ence. A state may, if it see fit, tie its criminal law about
the neck of its citizen and hold him answerable for its violation
everywhere. But even this power of control has its limitations.
For the citizen so bound is nevertheless not exempt from
obedience to the law of the place where he may be, and it
would be no defense to a charge of having violated it to say
that the act complained of was required by the penal law of
his own country. The local allegiance would be paramount;
his double allegiance would be his misfortune, for relief from
which he could appeal to the mercies of his own government
alone.
When a man in his own country violates its laws, he is
answerable for his misconduct to those laws alone; and it is
his right to be tried under them and in accordance with the
methods of procedure they prescribe. To say that he may be
answerable to another law. because the person he attacks is a
foreigner would in principle subject him in his own country
not merely to a dual, but to an indefinite responsibility. Such a
pretension is an assertion not only of an imperium in imperio,
but of imperia in imperio. It would expose citizens and all
other persons in the United States to liability to as many penal
systems as there happened to be nationalities represented in
the foreign population. Every fresh accession to that popu-
lation would extend the operation, and potentially increase the
variety, of foreign penal systems in force in this country.
The mere statement of such a proposition is a sufficient
refutation of it.
When a citizen of the United States commits in his own
country a violation of its laws, he is entitled as a matter of
right to be tried under and in accordance with its constitution
and laws. As. Heffter says, he should not be withdrawn for
trial for such an act from his constitutional judge. While he
is answerable in such case to the laws of his country, he is
entitled to the rights of defense and the safeguards of liberty
which they provide, and in accordance with which alone can his
I 26
guilt be established. The methods of trial are not a matter
of form, but an essential and inseparable part of every system
of criminal jurisprudence.
In respect to the punishment, advocated by so many con-
tinental jurists and provided for in so many continental codes,
of offenses against the safety of the state, it is beyond the pur-
view of this report to enter into an elaborate discussion, and
attempt to state a definitive conclusion. The grounds of
necessity and self-defense, on which this claim of jurisdiction
is based, are conditional and circumstantial rather than strictly.
legal, and the very mention of them is suggestive of interna-
tional controversies and complications. It is within the com-
petence of every independent state to decide what measures
it shall take to secure its safety. On the other hand, it may
become necessary for foreign powers to consider whether
those measures violate their sovereign prerogatives or the
rights of their citizens.
All of which is respectfully submitted :
JOHN B. MOORE,
Third Asssistant Secretary of State.
To the Honorable
T. F. BAYARD,
Secretary of State."
127
EXHIBIT A.
SENTENCE OF JUDGE ZUBIA.
Vista la presente causa instruida contra A. K. Cutting, quien declaró ser soltero, de 40
años de edad, originario del Estado de Nueva York, residente en esta villa y editor del periódico
El Centinela, por delito de diſamacion.
Vista la preparatoria del inculpado, el pedimento del representante del Ministerio público,
lo expuesto por la parte civil C. Emigdio Medina, la exposicion del defensor C. Jesus E. Islas
y todo lo demas que del proceso consta y ver convino.
Resultando, 1°: Que en el número 14 del periódico intitulado El Centinela que se pu-
blica en este lugar, correspondiente al 6 de Junio próximo pasado, apareció un párrafo de
gacetilla en inglés, en el que se critica de fraudulento un prospecto publicado en El Paso,
Texas, anunciando la aparicion de un periódico intitulado Revista Internacional.
Resultando, 2°: Que el C. Emigdio Medina considerándose aludido é injuriado en ese
párrafo se presentó al alcalde segundo en turno de lo criminal en esta villa, promoviendo juicio
de conciliacion en contra de A. K. Cutting, como editor responsable de El Centinela.
Resultando, 3°: Que presentes las partes ante el Juez conciliador convinieron en publicar
en el mismo periódico El Centinela una retractacion que fué redactada por Medina y corregida
por Cutting, cuya publicacion debia hacerse por cuatro veces en inglés, y si lo permitia el Sr.
A. N. Daguerre, editor tambien del periódico, seria publicada en español
.
Resultando, 4°: Que Cutting, lejos de cumplir lo estipulado en la conciliacion, publicó
el veinte del mismo mes de Junio la retractacion solamente en inglés en El Centinela, en letra
diminuta y con faltas sustanciales que la hacen casi ininteligible, publicando en la misma fecha
un aviso ó remitido en el The El Paso Sunday Herald, en el que ratifica y amplia los con-
ceptos difamatorios que publicó contra Medina y califica de indigno el acto de conciliacion que
se verificó ante el alcalde segundo de esta villa.
Resultando, 5º: Que el ofendido se presentó en forma acusando á Cutting por el delito
de difamacion conforme á los artículos 643 y 646, fraccion segunda, del Código Penal, por
cuyo motivo se libró la orden correspondiente de detencion.
Resultando, 6º: Que en 22 del mismo mes la parte ofendida amplió la acusacion mani-
festando: que aunque el periódico The El Paso Sunday Herald se publica en Texas, Cutting
lo hizo circular en gran número en esta poblacion y en el interior de la República, habiéndolo
leido más de tres personas, por cuyo motivo se mandaron recoger los ejemplares que se encon-
traban en la oficina ó despacho del mismo Cutting.
Resultando, 7º: Que dentro de los términos legales se tomó al inculpado su declaracion
preparatoria en la que declinó la jurisdiccion del juzgado, por tratarse de un acto consumado
en Texas, poniéndose bajo la proteccion del Cónsul de los Estados-Unidos, y se decretó el
auto de formal prision, habiéndose comunicado á quienes corresponde.
Resultando, 8°: Que seguida la averiguacion por todos sus trámites, el inculpado insistió
en su anterior respuesta, y al prevenirle nombrara defensor por haber renunciado el C. Lic.
José María Barajas, se negó á hacerlo, nombrándose de oficio al C. A. N. Daguerre, socio del
mismo Cutting en la redaccion de El Centinela; pero habiendo renunciado a su vez, recayó el
nombramiento en el C. Jesus E. Islas, quien ha desempeñado el cargo hasta presentar su alegato
de defensa.
Resultando, 9°: Que en virtud de la conclusion del Ministerio público relativa á haber
lugar á la acusacion, se puso de manifiesto el proceso en la secretaria por el término que señala
el artículo 409 reformado del Código de Procedimientos penales, y vencido el termino sin
haberse opuesto excepcion alguna, se citó á las partes para el debate que se verificó el dia 5 del
actual en la forma y términos prescritos por el mismo Código, terminando el acto con la citacion
para sentencia.
Considerando, 1°: Que conforme al artículo 121 del Código de Procedimientos penales,
la base del procedimiento criminal es la comprobacion del hecho que la ley reputa delito; y
en el presente caso, está plenamente comprobada la existencia de este hecho, puesto que lo
constituye la publicacion que apareció en El Centinela correspondiente al 6 de Junio próximo
pasado, en la que se calificó de fraudulento el prospecto que se dió á luz para anunciar la pu-
blicacion de la Revista Interuacional.
I 28
Considerando, 2°: Que si bien es cierto que respecto de este hecho hubo un acto conci-
liatorio, que habria dejado satisfecha a la parte ofendida si se hubiera cumplido, tambien lo es
que ese acto no llegó a complirse y, por lo mismo, quedó en pié la responsabilidad del delito.
Considerando, 3°: Que la prueba de la falta de cumplimiento del compromiso contraido
en el juicio de conciliacion está precisamente en el remitido publicado por Cutting en el The
El Paso Sunday Herald en el que ratifica la original asercion de que Emigdio. Medina es un
defraudador y estafador, y á la vez en la publicacion hecha en El Centinela de la misma fecha,
suprimiendo todas las mayúsculas y poniendo el nombre de Medina con letra microscópica,
á fin de dificultar su lectura.
Considerando, 4° : Que la ratificacion conforme al Diccionario de Escriche, es la confir-
macion y aprobacion de la que hemos dicho o hecho: Tiene retroactivo y por consiguiente no
constituye un acto diverso de aquel á que se refiere: "ratihabitio retrotrahitur ad initium," ni
nace de ella una nueva responsabilidad distinta de la que surgió ai principio.
Considerando, 5º: Que siendo esto así, la responsabilidad criminal de Cutting surgió de la
publicacion hecha en El Centiuela que ve la luz pública en esta villa, la cual fué ratificada en
el periódico de Texas sin que esta ratificacion constituyera un nuevo delito que deba ser casti-
gado con una pena diversa de la que corresponde por la primera publicacion.
Considerando, 6º: Que aun en el supuesto no concedido de que la difamacion procediera
del remitido publicado con fecha 20 de Junio en el The El Paso Sunday Herald, el artículo
186 del Código penal mexicano previene “que los delitos cometidos en territorios extranjeros
por un mexicano contra mexicanos ó contra extranjeros, ó por un extranjero contra mexicanos,”
podrian ser castigados en la República y con arreglo á sus leyes si concurrieren los requisitos
siguientes: 1°, que el acusado esté en la República ya sea porque haya venido espontánea-
mente o ya porque se haya obtenido su extradicion : 2°, que si el ofendido fuere extranjero,
haya queja de parte legitima: 3°, que el reo no haya sido juzgado definitivamente en el país
en que delinquio, o que si lo fué no haya sido absuelto, amnistiado ó indultado : 4º, que la
infraccion de que se le acuse tenga el carácter de delito en el país en que se ejecutó y en la
República: 5º, que con arreglo á las leyes de ésta, merezca una pena más grave que la de
arresto mayor; requisitos que se han perfectamente llenado en el presento caso, supuesto que
Cutting ſué aprehendido en territorio de la República; hay queja de parte legítima ó sea del
C. Medina, quien presentó su querella en la forma prescrita por la ley; el reo no ha sido
juzgado definitivamente, ni absuelto, amnistiado, ni indultado en el país en que delinquió; el
delito de que se acusa á Cutting tiene ese carácter en el país en que lo ejecutó y en la Repú-
blica, segun es de verse en el Código penal vigente en el Estado de Texas, artículos 616, 617,
618 y 619, y en el Código penal del Estado de Chihuahua, articulos 642 y 646; y segun
este último articulo, en su fraccion segunda, la infraccion de que se trata merece pena más grave
que la de arresto mayor.
Considerando, 7°: Que segun la regla de derecho Tridex non de legibus, sed secundum
lurres debet judicare, no corresponde al juez que decreta examinar el principio asentado en el
referido artículo 186, sino aplicarlo en toda su plenitud, por ser la ley vigente en el Estado.
Considerando, 8°: Que esta regla general no tiene más limitacion que la expresada en el
artículo 126 de la Constitucion general, que dice ; “ Esta Constitucion, las leyes del Congreso
de la Union que emanen de ella, y todos los tratados hechos o que se hicieren por el Presi-
dente de la República con la aprobacion del Congreso, serán la ley suprema de toda la Union.
Los jueces de cada Estado se arreglarán á dicha Constitucion, leyes y tratados, a pesar de las
disposiciones en contrario que pueda haber en las Constituciones ó leyes de los Estados."
Considerando, 9°: Que el repetido artículo 186 del Código penal, lejos de ser contrario
á la ley suprema ó á los tratados hechos por el Presidente de la República, ha tenido por
objeto, segun es de verse en la parte expositiva del mismo Código, página 38, " que obre de
lleno el principio en que se funda el derecho de castigar, esto es, la justicia unida a la utilidad."
Considerando, 10°: Que aun suponiendo, sin conceder, que el delito de difamacion se
hubiere ejecutado en territorio de Texas, la circunstancia en que tuvo en esta villa el periódico
El Paso Sunday Herald, de la que se quejó el C. Medina, motivando el decreto en que se
mandaron recoger los ejemplares existentes en la oficina de Cutting, situada en esta misma
villa, constituye propiamente la consumacion del delito, conforme al art. 644 del Código Penal.
Considerando, 11°: Que segun el artículo 7° reformado de la Constitucion general, los
delitos que se cometen por medio de la imprenta deben ser juzgados por los tribunales com-
petentes de la Federacion o de los Estados, conforme á su legislacion penal.
Considerando, 12° : Que la publicacion hecha por Cutting en El Centinela, ratificada
despues en el The El Paso Sunday Herald y en el The Evening Tribune, que obran en el
proceso, ataca la vida privada del C. Emigdio Medina al atribuirle el delito de fraude y estafa,
y por lo mismo está comprendida en la taxativa puesta á la libertad de imprenta por el artículo
constitucional citado.
Considerando, 13°: Que tratándose de hechos consumados en el territorio del Canton
Bravos, perteneciente al Estado de Chihuahua, corresponde al Juez que suscribe juzgarlos con-
forme á la legislacion vigente en el mismo Estado, particularmente si se tiene en consideracion
1
129
que el inculpado reside en esta villa, donde tiene su domicilio hace más de dos años, segun
consta de las declaraciones visibles á fojas 20, 21 y 22 del proceso, afirmacion que no ha sido
contradicha por Cutting, quien declara á fojas 19 que reside en ambos lados, esto es, en Paso
del Norte, México, y en El Paso, Texas, sin residencia fija en ninguno de los dos lados.
Considerando, 14°: Que á mayor abundamiento, Cutting reconoció expresamente la juris-
diccion de las autoridades de esta villa, compareciendo ante el Alcalde de 2° turno de lo crimi-
nal y contestando la demanda conciliatoria que por difamacion interpuso en su contra el C.
Medina.
Considerando, 15°: Que la responsabilidad de Cutting está plenamente probada, puesto
que aparece consignada en documentos fehacientes que de ninguna manera han sido contradichos
por su autor; y si alguna duda hubiere respecto de la intencion dolosa con que se hizo la
primera publicacion, desapareceria
en vista de las ratificaciones posteriores hechas en el The
El Paso Sunday Herald y en el The Evening Tribune, en las que Cutting expresa textual-
mente que Emigdio Medina es un defraudador, estafador, cobarde z ladron; quedando así
llenados los requisitos que señala el artículo 391 del Código de Procedimientos penales.
Considerando, 16° : Que para graduar la pena que deba aplicarse, hay que tener presente,
que aunque el hecho que se imputa al ofendido le causa deshonra y perjuicio grave, y no existen
circunstancias atenuantes, se trata de un delito de carácter privado entre dos editores, en el
que solo han concurrido las circunstancias agravantes á que se refieren las fracciones sétima
y undécima del artículo 44 y los artículos 656 y 657, fraccion cuarta, del Código Penal: no
apareciendo plenamente justificadas las demas que menciona el Ministerio público, pues si
bien es cierto que el presente caso ha producido grande alarma á la sociedad, esto no ha
provenido del delito que se imputa á Cutting, sino de las medidas inadecuadas que se han
tomado para su defensa: siendo en consecuencia de perfecta aplicacion la parte final del
artículo 66 del Código citado; y,
Considerando, finalmente, 17°: Que el responsable de un delito lo es de sus consecuen-
cias, quedando obligado a la indemnizacion civil en los términos que se disponen en los
artículos 326 y 327 del Código Penal.
de las disposiciones citadas y de los artículos 646, fraccion segunda, 661, 119
y 218 del mismo Código, se resuelve con las proposiciones siguientes:
Primera :
: por el delito de difamacion cometido en la persona del C. Emigdio Medina, se
condena á A. K. Cutting á sufrir un año de servicios públicos y á pagar una multa de 600
pesos, ó en su defecto á cien dias más de arresto.
Segunda: se le condena igualmente á la indemizacion civil, que se fijará como lo dispone
el artículo 313 del Código Penal.
Tercera : amonéstese al reo, para que no reincida en el delito por el cual se le condena,
advirtiéndole las penas á que se expone.
Cuarta: esta sentencia se publicará en los términos que previene el artículo 661 del
propio Código.
Quinta : remítase esta causa al Supremo Tribunal de Justicia, para los efectos á que se
contrae la parte final del pedimento del agente del Ministerio público, relativa á la intervencion
que ha tenido el Cónsul americano en este proceso..
Sexta: notifíquese á las partes y adviértase al reo el término que tiene para apelar de esta
sentencia.
El C. Lic. Miguel Zubia, Juez letrado del Distrito Bravos, fallando en definitiva, así lo
proveyó con testigos.
MIGUEL ZUBIA.
A., L. FLORES.
A., S. VARGAS.
Lo comunico á vd. para su conocimiento.
FELIX FRANCISCO MACEYRA.
Con apoyo
E. C. -
-9.
I 30
EXHIBIT B.
ARRÊT.
LA COUR;-Attendu que si, en principe général, les Cours d'assises saisies par un arrêt
de la chambre des mises en accusation non attaqué dans les délais fixés par l'art. 296, C. inst.
cr., ne peuvent se déclarer incompétentes, soit parce que le fait incriminé ne constituerait
qu’un délit, soit par le motif que l'accusé aurait dû être renvoyé devant une autre Cour
d'Assises, ou même devant un tribunal d'exception, cette règle est fondée sur ce que les Cours
d'Assises, étant investies de la plénitude.de juridiction en matière criminelle, peuvent, sans
commettre aucun excès de pouvoir et sans sortir des limites de leurs attributions, connaitre de
tous les faits punis par la loi française; mais que cette juridiction, quelque générale qu'elle
soit, ne peut s'étendre aux délits commis hors du territoire par des étrangers, qui, à raison de
ces actes, ne sont pas justiciables des tribunaux français ;-Attendu, en effet, que le droit de
punir émane du droit de souveraineté, qui ne s'etend pas au delà des limites du territoire;
qu'à l'exception des cas prévus par l'art. 7, C. inst. crim., dont la disposition est fondée sur le
droit de légitime défense, les tribunaux français sont sans pouvoir pour juger les étrangers à
raison des faits par eux commis en pays étranger;-Que leur incompétence à cet égard est absolue,
permanente ; qu'elle ne peut être couverte ni par le silence, ni par le consentement de
l'inculpé; qu'elle existe toujours la même, à tous les degrés de juridiction, et que la chambre
des mises en accusation, par son arrêt de renvoi, ne peut donner à la cour d'assises le droit,
qu'elle n'a pas elle-même, de statuer sur un fait non soumis à la loi française;— Attendu, en
fait, que Raymond Fornage a été traduit devant la Cour d'assises de la Haute Savoie, comme
accusé d'un vol commis dans le canton de Valais (Suisse); qu'avant l'ouverture des débats il
a posé des conclusions tendant à ce que cette Cour se déclarât incompétente, par le motif
qu'étant né en France de parents étrangers, et n'ayant pas réclamé la qualité de Français, il
n'était pas justiciable des tribunaux français à raison d'un fait commis en pays étranger;
Attendu que cette exception, qui mettait en contestation la légalité même de la poursuite et le
droit de juridiction de la Cour d'assises, constituait nécessairement une question préjudicielle
qui devait être jugée par cette Cour avant tout débat sur le fond du procès ; que le demandeur
n'a pu être privé du droit d'exciper de ce moyen péremptoire, ni par son silence pendant le
cours de l'instruction, ni par le défaut de pourvoi contre l'arrêt de la chambre des mises en
accusation, qui, d'ailleurs, n'a pas été appelée à statuer sur la question de nationalité posée
pour la première fois devant la Cour d'assises;—Attendu qu'en le déclarant non recevable à
présenter cette exception par le motif qu'il ne s'est pas pourvu dans le délai fixé par la loi
contre l'arrêt de renvoi, la Cour d'assises de la Haute Savoie a faussement appliqué les art.
296, 297 et 301 du C. d'inst. crim.; et qu'en ordonnant qu'il serait procédé à l'ouverture des
débats sans statuer sur la question préjudicielle de nationalité soulevée par l'accusé, elle a
violé l'art. 408 du même Code, et méconnu les droits de la défense ;-Casse, etc.
Du 10 janv. 1873:-Ch. crim.-MM. Faustin Hélie, prés.; Réquier, rapp.; Bedarrides,
av. gen.
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