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Judicial Powers of Consular Officers in Oriental, Non-
596. It has already been stated that the Consular Officers of the United States in China, Corea, Japan, Siam, Borneo, Madagascar, Persia, Turkey, Tripoli, Tunis, Muscat, and Morocco enjoy exceptional and exclusive judicial powers. Reference is made to the former statements on this subject (paragraphs 71 and 74), and to the several treaties in the Appendix, for the particular jurisdiction conferred in each case. These powers are exercised by Consuls-General, Vice-Consuls-General, Consuls, and Vice-Consuls. Consular Agents are not deemed to be judicial officers within the intent of the statute.
597. The Consuls and Commercial Agents of the United States at islands or in countries not inhabited by any civilized people or recognized by any treaty with the United States are also invested by statute with the power to hear and determine cases in regard to civil rights where the debt or damage does not exceed one thousand dollars, exclusive of costs; and also to issue warrants to arrest offenders, to arraign, try, and convict them, and to punish them to the extent of one hundred dollars fine, or to imprisonment not to exceed sixty days. Their jurisdiction is the same as that pointed out in paragraph 610, and as provided for in section 4086 of the Revised Statutes.
598. Provision has also been made for the extension of the jurisdiction of Consular Officers in civil and criminal cases to countries with which the United States may hereafter enter into treaty relations. And by the act of Congress of June 14, 1878, it is provided that whenever the United States shall negotiate a treaty with any foreign Government, in which the American Consul-General or Consul shall be clothed with judicial authority, and securing the right of trial to American citizens residing therein before such Consul-General or Consul, and containing provisions similar to or like those contained in the treaties with Tripoli, Tunis, Morocco, Muscat, and the Samoan or Navigator Islands, the provisions of Title XLVII, so far as they may be applicable,
Jurisdiction in Oriental countries, R. S., secs. 4083, 4129, 4130.
In uncivilized countries.
R. S., sec. 4088.
Extension of jurisdiction.
R. S., sec. 4129.
R. S., sec. 4083.
Act of March 23, 1874.
R. S., sec. 4126.
shall have full force in reference to said treaty, and shall extend to the country of the Government negotiating it.
599. The provisions of Title XLVII of the Revised Statutes, in relation to the judicial powers of Consular Officers, apply directly to the Consulates in China, Japan, Siam, Egypt, and Madagascar.
600. They apply in terms to Turkey, so far as they relate to crimes and offenses; and as to civil cases, so far as the laws of Turkey permit. The Government of the Sublime Porte maintains that there is a discrepancy between the English and Turkish texts of the treaty of May 7, 1830, and that the Turkish text should govern. While denying the correctness of this proposition, it is thought that Consular Officers in the Ottoman dominions should aim to avoid raising questions which may make it necessary to provoke discussion on this point.
601. The Government of the Khedive of Egypt having, with the consent of the foreign Consuls, organized a system of jurisdiction by mixed courts, Congress authorized the President to suspend the act of 1860 as to that country, and to accept the jurisdiction of the mixed courts during the pleasure of the President. Notice has been given that the President has accepted the jurisdiction of these courts, and they are now in operation.
602. The provisions of this Title extend also to Persia in respect to all suits and disputes which may arise between citizens of the United States therein. All suits and disputes arising in Persia between Persian subjects and citizens of the United States are to 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. It is made the duty of the Consular Officer to attend the trial in person, and see that justice is administered. All suits and disputes in Persia between citizens of the United States and the subjects of other foreign powers are to be tried by the intermediation of their respective Ministers or Consuls, in accordance with such regulations as shall be mutually agreed upon between the respective
These regulations are to be submitted to the
In other countries.
603. In like manner the provisions of the Title are extended, so far as they are in conformity with the stipulations R. S., sec. 4127. of existing treaties, to Tripoli, Tunis, Muscat, and Morocco. And should a Consul be appointed in Borneo, the judicial powers conferred by the ninth article of the treaty of June 23, 1850, will be exercised, as far as possible, in conformity with the provisions of the statute.
604. If at any time there be no Minister in either of the countries mentioned in the Title, the judicial duties imposed by its provisions upon the Minister shall devolve upon the Secretary of State, who is authorized and required to discharge them.
605. In Tunis, Morocco, and Tripoli, citizens of the United States committing murder or homicide upon a subject of those powers are to be tried by a mixed court, at which the Consul is to "assist."
606. The undisputed portion of the fourth article of the treaty of 1830 with the Ottoman Porte provides for the supervision of the American dragoman in the hearing of all litigations and disputes arising between the subjects of the Sublime Porte and citizens of the United States. It is not in dispute that the usages observed toward other Franks are to be observed toward citizens of the United States. These nsages are believed to be the following:
1. Turkish tribunals for questions between subjects of the Porte and foreign Christians.
2. Consular Courts for the business of each nation of foreign Christians.
3. Trial of questions between foreign Christians of different nations in the Consular Court of the defendant's nation. 4. Mixed tribunals of Turkish magistrates and foreign Christians, at length substituted in part for cases between Turks and foreign Christians.
5. Finally, for causes between foreign Christians, the substitution at length of mixed tribunals in place of the separate courts-this arrangement introduced at first by the
Duties of Secretary of State.
R. S., sec. 4128.
Tunis, Morocco, Tripoli.
The most favorable usage to be claimed.
Treaty of 1858 with China.
Modes of proceedings.
legations of Austria, Great Britain, France, and Russia, and then tacitly acceded to by the legations of other foreign Christians.
607. Whatever favorable usage may be observed toward subjects of Great Britain, France, Austria, Italy, Russia, Germany, or of any other great power, must be claimed and insisted upon in favor of citizens of the United States; for by the first article of the treaty of February 25, 1862, between the United States and the Ottoman Empire, it is agreed that all rights, privileges, and immunities granted to the subjects of any other foreign power shall be equally granted to and enjoyed by the citizens of the United States.
608. The revised treaty with China of 1858 also provides that 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 conjunction.
609. The modes of proceedings and the laws by which Consular Officers are to be governed are prescribed or provided for by the statute. Reference is to be made to the text of the statute, some of the leading provisions only being noticed in this connection.
WHAT LAWS TO GOVERN PROCEEDINGS.
610. The jurisdiction is to be exercised in conformity, R. S., sec. 4086. 1st, with the laws of the United States; 2d, with the common law, including equity and admiralty; and, 3d, with decrees and regulations, having the force of law, made by the Ministers of the United States in each country, respectively, to supply defects and deficiencies in the laws of the United States, or the common law, as above defined.
Powers of Minis
ters as to regulations.
R. S., sec. 4086.
611. This power of the Ministers to make laws and regulations is limited, by construction of the Department, to acts necessary to organize and give efficiency to the courts created by the act.
612. The authority of a Minister to make regulations having the force of law within the country to which he is accredited is derived from statute. The statute confers upon
.m 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. 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. 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."
FORMS OF PROCEEDINGS.
613. It is provided that the Ministers, with the advice of the several Consuls, shall prescribe the forms of all processes to be issued from the Consular Courts, the mode 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 examining all other witnesses; the costs to be allowed to the prevailing party, and the fees to be paid for judicial services; (1) the manner in which all Officers and Agents to execute process shall be appointed and paid; the form of bail bonds, and the security which shall be required from the party who appeals from the decision of a Consul. And from time to time he is required to make such further decrees and regulations as may be necessary. It is his duty also to establish a tariff of fees for judicial services, to be paid by such parties and to such persons as he shall direct.
614. The forms and practice in each Consular Court have now become settled by usage. Each Consul will conform to them. Should he find defects in any part of the existing system, he will call the attention of the Diplomatic Repre
1 These fees are official and must be adjusted at the Treasury Department. (See paragraph 493.)
Forms of proceedings.
R. S., secs. 4117, 4120.
In Consular Courts.