Sivut kuvina

power, or may modify its exercise with a view to the attainment of the object of the treaty or act of union.

The local authorities shall not otherwise interfere than for the maintenance of order, the protection of the interests of the salvors, if they do not belong to the crews that have been wrecked, and to carry into effect the arrangements made for the entry and exportation of the merchandise saved.

It is understood that such merchandise shall not be subjected to any customhouse duty, if it is to be reëxported, and, if it be entered for consumption, a diminution of such duty shall be allowed, in conformity with the regulations of the respective countries.

ART. XII. The respective consuls-general, consuls, vice-consuls, or consular agents, as well as their consular pupils, chancellors, and secretaries, shall enjoy in the two countries all the other privileges, exemptions, and immunities, which may at any future time be granted to the agents of the same rank of the most favored nation.

ART. XIII. The present convention shall remain in force for the space of ten years from the day of the exchange of the ratifications, which shall be made in conformity with the respective constitutions of the two countries, and exchanged at Washington within the period of six months, or sooner, if possible. In case neither party gives notice, twelve months before the expiration of the said period of ten years, of its intention not to renew the convention, it shall remain in force a year longer, and so on from year to year, until the expiration of a year from the day on which one of the parties shall give such notice. Treaties of the United States, 1854, p. 114.

Besides the provision in the treaty with France, the United States have treaties with Belgium, Brazil, the Hanseatic Towns, Central America, Chili, Eucador, Greece, Hanover, Mexico, Peru-Bolivia, Portugal, Prussia, Russia, Sardinia, Spain, Sweden, Venezuela, and Austria, reciprocally authorizing the arrest, in their respective ports, of any sailors who have deserted from the public or private vessels of the other of the contracting parties, and stipulating for the aid of the local authorities for their apprehension. See U. S. Statutes at Large, vols. viii. and ix. To give effect to the provision on this subject in the Treaty of 1822, with France, the Act of May 4, 1826, referred to in the recent treaty, was passed, (U. S. Statutes at Large, vol. iv. p. 160). A further act was also passed, March 21, 1829, which applies to all cases of foreign governments having treaties with the United States, stipulating for the restoration of seamen. This law makes it the duty of all courts having jurisdiction to issue warrants for the examination of the persons charged; and if, on examination, the facts stated are found to be true, such person, not being a citizen of the United States, shall be delivered to the consul, to be sent back to the dominions of his government. Id. p. 360. Our treaty with China, art. 29th, provides for the apprehension and delivery to the consuls, by the local authorities, of all mutineers or deserters from on board of vessels of the United States in China. Id. vol. viii. p. 598.

In the Treaty of 1828, with Prussia, art. 10, (U. S. Statutes at Large, vol. viii. p. 382,) there is a provision, that the consuls, vice-consuls, and commercial

Subject to these exceptions, the judicial power of every State is coextensive with its legislative power. At the same time, it

agents, shall have a right, as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities; unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country, or the consuls should require their assistance. An Act of Congress, passed 8th of August, 1846, for carrying into effect the provisions of this and similar treaties, gives authority to the Circuit and District Courts of the United States, and the commissioners appointed by them, to issue the necessary process to enforce the award, arbitration, or decree of the consul. U. S. Statutes at Large, vol. ix. p. 79. A provision similar to that in the treaty with Prussia is to be found in the 12th art. of the Treaty of 1837, with Greece; 8th art. of the Treaty of 1832, with Russia; in the 9th art. of the Treaty of 1846, with Hanover; and in the 1st art. of the Treaty of 3d of April, 1852, between the United States and the Hanseatic Towns. See U. S. Stat. vols. viii. and ix. before cited, and Treaties of the U. S. 1854, p. 95.

The consuls of the Christian States of Europe have, throughout the Levant, for centuries, exercised jurisdiction over their countrymen, as well as over others under their protection, and controlled, to a greater or less degree, the relations of the Franks with the people of the country. The 20th and 21st articles of the Treaty of 1787, with Morocco, provide, that if any of the citizens of the United States, or any persons under their protection, should have disputes with each other, the consul should decide between the parties; and whenever the consul should require any aid or assistance from the government to enforce his decision, it should be immediately granted to him. The consul was also to assist at any trial against a citizen of the United States for killing or wounding a Moor, or against a Moor for killing or wounding an American citizen. U. S. Statutes at Large, vol. viii. p. 103. In the treaties which existed with the former Regency of Algiers, while the consul was to settle any disputes between citizens of the United States, those between subjects of the Regency and the United States were to be decided by the Dey in person; and between citizens of the United States and other powers having consuls at Algiers, by the respective consuls of the parties. U. S. Statutes, vol. viii. p. 135. Id. p. 227. Id. p. 247. The treaty with Tunis, of 1797, contains the same provision as the treaty with Morocco; and it also provides for the presence of the consul, in case of any commercial dispute between Americans and the subjects of the Dey. Id. p. 160. By the Treaty of 1830, with the Ottoman Porte, it is provided that the consuls and vice-consuls of the United States shall be furnished with berats or firmans; that in disputes and litigations between the subjects of the Porte and citizens of the United States, the parties shall not be heard nor judgment pronounced unless the American Dragoman is present; and all cases exceeding 500 piastres are to be submitted to the Sublime Porte. Even Americans who have committed offences are not to be arrested or put in prison by the local authorities; but they are to

does not embrace those cases in which the municipal institutions of another nation operate within the territory. Such are the

be tried by the minister or consul, and punished according to the offence, — following, in this respect, the usage observed towards other Franks. U. S. Statutes at Large, vol. viii. p. 409.

An act was passed August 11, 1848, to carry into effect the provisions of the treaties with China and the Ottoman Porte, by vesting judicial powers in the commissioner and consuls in China and the minister and consuls in Turkey. The laws of the United States are extended over the citizens of the United States in China, and where they are deficient, the common law; and if neither the common law nor statutes of the United States furnish suitable remedies, the commissioner shall, by decrees and regulations which shall have the force of Jaw, supply the deficiencies, such regulations and decrees to be transmitted to the President, to be laid before Congress. The decision of the consul, who, in cases of intricacy, or in criminal cases of importance, is to be aided in his judgment by one or more citizens of the United States, is subject, in civil cases, beyond a certain amount, to an appeal to the commissioner. The only capital cases are murder, and insurrection or rebellion against the Chinese government, and in all other cases the punishment is fine and imprisonment, with an appeal to the commissioner; and no person can be convicted of a crime punishable with death, unless the consul and his associates all concur in opinion, and the commissioner approves of the conviction. The commissioner and the consuls may call on the Chinese authorities to support them in the exercise of the powers confided to them. The provisions of the act, so far as they relate to crimes committed by citizens of the United States, are extended to Turkey, in conformity with the Treaty of 1830. U. S. Statutes at Large, vol. ix. p. 276. The powers and privileges understood to belong to the consuls of Christian powers in the Levant are thus stated:

Les consuls dans le Levant et dans la Barbarie ont entière liberté de religion, et ont la permission de tenir des chapelles chez eux et d'admettre leurs compatriotes à l'exercice de leur culte. Leurs maisons sont des asiles inviolables. On ne peut ni les arrêter, ni les juger, mais s'ils abusaient de leur position, ils seraient renvoyés à leurs gouvernements. Ils ne sont point tenus de comparâitre personnellement par-devant les tribunaux, où il suffit qu'ils envoient leurs drogmans. Ils peuvent librement sortir du pays quand ils veulent. On leur accorde gratuitement une garde de janissaires ou d'autres soldats. Aucune taxe, aucun impôt, n'est payé par eux, par leurs employés, ou par leurs domestiques. Ils n'ont pas de droits de douane à acquitter pour les effets à leur usage. Rien ne peut leur être confisqué ou retenu. Ils prennent connaissance des biens de leurs compatriotes décédés sans héritiers sur les lieux. En cas de naufrage, ils président à toutes les opérations de sauvetage et recueillent les objets sauvés. Ils sont juges naturels de leurs nationaux, sans que les autorités territoriales y interviennent, excepté dans le cas de la réquisition du consul lui-même. En cas de différend, ou bien lorsqu'un crime a été commis par un individu de leur nation sur un sujet du pays, l'autorité locale à laquelle en appartient la connaissance, ne

cases of a foreign sovereign, or his public minister, fleet, or army, coming within the territorial limits of another State, which, as already observed, are, in general, exempt from the operation of the local laws.1

§ 13. Ex- I. The judicial power of every independent State, tent of the then, extends, with the qualifications mentioned, judicial


power over 1. To the punishment of all offences against the offences. municipal laws of the State, by whomsoever committed, within the territory.2

2. To the punishment of all such offences, by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports.3

3. To the punishment of all such offences by its subjects, wheresoever committed.

4. To the punishment of piracy, and other offences against the law of nations, by whomsoever and wheresoever committed.*

It is evident that a State cannot punish an offence against its

peut, dans la règle, ni procéder, ni prononcer jugement, sans la participation du consul et la coopération de son interprète, présent à la procédure, pour défendre les intérêts de l'individu de sa nation. Ils peuvent recevoir sous leur protection tous les bâtiments ou les individus étrangers qui la leur demanderont. Si un individu qui est sous leur protection doit être arrêté, ils peuvent, en s'en rendant cautions, le reclamer, &c. Mensch, Manuel Pratique du Consul, p. 4. See, also, for the jurisdiction of consuls in the Levant, China, and Muscat, Moreuil, Manuel des Agents Consulaires, pp. 127, 377.

This subject was further elucidated during the controversy in reference to Koszta. Vide supra, p. 136, note.

The treaty of the United States with the Sultan of Muscat, 1833, article 9, authorizes the appointment of consuls in the ports of the Sultan where the principal commerce is carried on, and which consuls shall be the exclusive judges of all disputes or suits wherein American citizens shall be engaged with each other. U. S. Statutes at Large, vol. viii. p. 459. The treaty with Siam, 1833, article 10, stipulates for the privilege of appointing American consuls, provided it is accorded to any other power except the Portuguese. Id. p. 455. The Treaty of 31st March, 1854, with Japan, contains the following provision:- Article 11. There shall be appointed by the government of the United States consuls or agents, to reside in Simoda, at any time after the expiration of eighteen months from the date of the signing of this treaty, provided that either of the two governments deem such arrangement necessary. Washington Union.

1 Vide supra, § 9, p. 144.

3 Ibid. §§ 9, 10, pp. 145, 159.

2 Ibid. § 6, p. 121.

4 Vide infra, § 15.

municipal laws, committed within the territory of another State, unless by its own citizens; nor can it arrest the persons or property of the supposed offender within that territory; but it may arrest its own citizens in a place which is not within the jurisdiction of any other nation, as the high seas, and punish them for offences committed within such a place, or within the territory of a foreign State.

By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are considered as altogether local, and are justiciable only by the courts of that country where the offence is committed. But this principle is peculiar to the jurisprudence of Great Britain and the United States; and even in these two countries it has been frequently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question; but the preponderance of their authority is greatly in favor of the jurisdiction of the courts of the offender's country, in such a case, wherever such jurisdiction is expressly conferred upon those courts, by the local laws of that country. This doctrine is also fully confirmed by the international usage and constant legislation of the different States of the European continent, by which crimes in general, or certain specified offences against the municipal code, committed by a citizen or subject in a foreign country, are made punishable in the courts of his own.1

trade and

Laws of trade and navigation cannot affect foreign. Laws of ers, beyond the territorial limits of the State, but they navigation. are binding upon its citizens, wherever they may be. Thus, offences against the laws of a State, prohibiting or regulating any particular traffic, may be punished by its tribunals, when committed by its citizens, in whatever place; but if committed by foreigners, such offences can only be thus punished when committed within the territory of the State, or on board of its

1 Fœlix, Droit International Privé, §§ 510-532. See American Jurist, vol. xxii. p. 381-386.

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