territorial jurisdiction over United States citizens in Chosen shall be abandoned, and thereafter United States citizens, when within the limits of the Kingdom of Chosen, shall be subject to the jurisdiction of the native authorities.

XV. ZANZIBAR.

Treaty of July 3. 1886.

ART. II. The consuls of the United States appointed under the stipulations of the IXth article of the treaty above mentioned, shall in addition to the rights, powers and immunities secured by said article, enjoy all the rights. privileges, immunities and jurisdictional powers which are now or may hereafter be enjoyed by the consuls and consular agents of the most favored nations and conversely, the consuls and consular agents which His Highness the Sultan may appoint to reside in the United States shall have the treatment of agents of like grade of the most favored nation.

EXHIBIT D.

THE AMERICAN SYSTEM.

[Extract from a letter of Secretary of State Frelinghuysen to Hon. William Windom, chairman Committee on Foreign Relations, dated April 29, 1882. (47th Cong., 1st sess. Senate Mis. Doc. No. 89.)]

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 Stat. L., 276.)

The jurisdiction in regard to civil matters conferred by this act included authority to execute the provisions of the treaty, whether in regard 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 Ottoman dominions. As to both classes, the jurisdiction was to be exercised in conformity with the laws of the United States, so far applicable; and the common law, so far as necessary to supply defects, was extended over all citizens of the United States in those countries; and the diplomatic representatives of the United States were further authorized to supply by degrees and regulations any further defects.

The Department of State, unwilling to assume an arbitrary and almost unlimited power of legislation. has construed the power thus conferred 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 authority to make regulations in order “to 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 Stat. L., p. 72), undertook to remedy the defects. It extended not only the common 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 providing for a permanent list of assessors, or assistants; by inserting section 18, conferring authority 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 uncivilized countries in which we may obtain extraterritorial rights; made provisions 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 Stat. L., p. 183), appeals 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 prisoners.

Amendments were also introduced by the act of March 3, 1873, chap. 249, 17 Stat. L., 582, and the act of June 14, 1878, chap. 193, 20 Stat. L., 131. All these provisions are contained in the sections of the Revised Statutes quoted, infra, Exhibit E.

[Extract from opinion of Attorney-General Cushing, September 19, 1855, Opinions of the Attorneys-General, Vol. VII, p. 502, 503.]

"In order to execute these treaties-to carry the laws of the United States into Turkey and China-to have our territorial jurisdiction. follow our people and our flag into those empires persons clothed with lawful authority are the necessary instruments. * "Accordingly, the statute contains the following important pro

vision:

*

*

"That such jurisdiction in criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute said treaty, extended over all citizens of the United States in China (and over all others to the extent that the terms of the treaty justify or require), so far as such laws are suitable to carry said treaty into effect; 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 shall be extended in like manner over such

citizens and others in China; and if defects still remain to be supplied, and neither the common law nor the statutes of the United States furnish appropriate and suitable remedies, the commissioner shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.'

"The system of law is composed, therefore, of—

"1. The laws of the United States, comprehending the Constitution, treaties, acts of Congress, equity and admiralty law, and the law of nations, public and private, as administered by the Supreme Court, the circuit and district courts of the United States, and, in certain cases, regulations of the Executive Departments.

The common law. In this respect, the statute furnishes a code of laws for the great mass of civil or municipal duties, rights, and relations of men, such as, within the United States, are of the resort of the courts of the several States.

"Some general code in these respects became necessary, because the law of the United States-that is, the Federal legislation-does not include these matters, and, of itself, would be of no avail toward determining any of the questions of property, succession, the contract, which constitute the staple matter of ordinary life.

"For such of the States as were founded in whole or chief part by colonists from Great Britain and Ireland, or their descendants, the law of England, as it existed in each of those States at the time of their separation from Great Britain, with such modifications as that law had undergone by the operation of colonial adjudication, legislation, or usage, became the common law of such independent State.

"Meantime, in addition to many changes, differing among themselves, which the common law underwent in each of the colonies before it became a State, that common law has been yet more largely changed by the legislation and judicial construction of each of the States.

"Hence, it was not enough to enact that the common law should intervene to supply, in China, deficiencies in the law of the United States. For the question would be sure to arise: What common law? The common law of England at the time when the British colonies were transmuted into independent republican States? Or the common law of Massachusetts? Or that of New York, or Pennsylvania. or Virginia? For all these are distinct, and in many important respects diverse, common law."

"To dispose of this difficulty, the statute went one step further, and enacted, that--

"3. Decrees and regulations may be made from time to time by the commissioner, which shall have the force of law, and supply any defects or deficiencies in the common law and the laws of the United States.

"This power of supplementary decree or regulation serves to provide for many cases of criminality, which neither Federal statutes nor the common law would cover.

"In addition to which, it is enacted that the commissioner, with advice of the several consuls, shall prescribe the forms of processes to be issued, the mode of executing the same, the form of oaths, the costs and fees to be allowed and paid; and generally to make all such decrees, regulations, and orders, under the act, as the exigency may

demand, which shall be binding and obligatory until annulled or modified by Congress.' (Sec. 5.)

"In certain respects, therefore, the commissioner legislates for citizens of the United States in China, it being required meanwhile, that such 'regulations, orders, and decrees,' as he may make in the premises shall be transmitted to the President, to be laid before Congress for its revision.' (Sec. 6.)"

66

[Extract from instructions from Secretary Fish to Mr. Bingham, January 20, 1876.]

These provisions of the statute of the United States are not understood 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 jurisdiction 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 sufficient remedies for the exercise of the jurisdiction which the statute confers on the consular courts in Japan, China, &c., the minister may supply this 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 rights 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 acording to existing laws, and to punish those who offend against the laws."

CONSULAR REGULATIONS.

627. Power of ministers to make regulations.-The authority of a minister to make regulations having the force of law within the country to which he is accredited is 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. (R. S., sec. 4086.) In each of these contingencies the minister has authority to make regulations in order "to furnish suitable and appropriate remedies," and for no other purpose whatever. Every power named in the statute in this respect is conferred upon the minister "in order to organize and carry into effect a system of jurisprudence." The statute confers upon him no authority to make a regulation requiring citizens of the United States to register their names and no power to enforce such a regulation judicially.

H. Doc. 326, 59-2-15

EXHIBIT E.

(1) UNITED STATES STATUTES REGULATING THE EXERCISE OF EXTRA

TERRITORIAL JURISDICTION BY THE UNITED STATES.

SEC. 4083. To carry into full effect the provisions of the treaties of the United States with China, 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 provisions of such treaties, respectively, be invested with the judicial authority 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, all citizens 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 all the judicial authority necessary to execute the provisions of such treaties, respectively, in regard to civil rights, whether of property or person; and they shall entertain jurisdiction 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 of 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 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, 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 require. 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 remedies, the ministers in those countries, respectively, shall, by decrees and regulations 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, to issue his warrant for the arrest of any citizen of the United States