edict of June, 1778, relating to the Levant and Barbary; and, with respect to criminal jurisdiction, it conforms generally to the law of May 28th, 1836, relating to the same countries. Appeals, in certain specified cases, are allowed from the French consular tribunals in China to the French court of appeals in Pondichery. By recurring to the ordonnance and law above referred to, it will be seen that the jurisdiction and proceedings of the French consular courts in the east are regulated with great minuteness of detail. (De Clercq, Guide des Consulats, pp. 150-153; De Clercq, Formulaire des Chancelleries, tome 2, pp. 369-374; Ordonnance d'août 1681, liv. 1, tit. 9, arts. 13-15; Moreuil, Manuel des Agents Cons., pp. 379 et seq.)

§ 29. By the treaty of July 3d, 1844, between the United States of America and China, it was stipulated as follows: "Article twenty-first. 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 disaffection, justice shall be equitably and impartially administered on both sides." "Article twenty-fourth. 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 consul or other officer, to determine if the language 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 have 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 langnage be respectful and proper, and the matter just and right, in which case the said authorities will transmit the same to the consul, or other officer, for his consideration and action in the premises. And if controversies arise between citizens of the United States and subjects China, which cannot be amicably settled other

wise, the same shall be examined and decided conformably to justice and equity, by the public officers of the two nations acting in conjunction." "Article twenty-fifth. All questions in regard to rights, whether of property or person, arising between citizens of the United States in China shall be subject to the jurisdiction and regulated by the authorities of their of their own government. And all controversies occuring in China, between citizens of the United States and the subjects of any other government, shall be regulated by the treaties existing between the United States and such governments, respectively, without interference on the part of China." (U. S. Statutes at Large, vol. 8, pp. 592 et seq.; Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 11; Chinese Treaties, Hongkong, 1844, pp. 45–48.)

§ 30. Mr. Cushing, the American commissioner who negotiated this treaty with China, in his letter to the American secretary of state, dated September 29th, 1844, says: that he entered China with the general conviction that the United States ought not to concede to any Mohammedan or pagan state, under any circumstances, the local jurisdiction over a citizen of the United States, which was claimed and exercised by foreign christian states. "In our treaties with the Barbary States, with Turkey, and with Muscat, I had the precedent of the assertion, on our part, of more or less of exclusion of the local jurisdiction, in conformity with the usage, as it is expressed in one of them, observed in regard to the subjects of other christian states. In China, I found that Great Britain had stipulated for the absolute exemption of her subjects from the jurisdiction of the empire, while the Portugese attained the same object through their own local jurisdiction at Macao. I deemed it, therefore, my duty, for all the reasons assigned, to assert a similar exemption on behalf of the citizens of the United States. This exemption is agreed to in terms by the letter of the treaty of Wang Hiya. And it was fully admitted by the Chinese, in the correspondence which occurred contemporaneously with the negotiation of the treaty, on occasion of the death of Sha Aman. * * * By that treaty, thus construed, the laws of the United States follow its citizens, and its banner protects them, even within the domain of the Chinese empire.

The treaties of the United States with the Barbary powers, and with Muscat, confer judicial functions on our consuls in those countries, and the treaty with Turkey places the same authority in the hands of the minister or consul, as the substitute for the local jurisdiction, which, in case of controversy, would control if it arose in Europe or America. These treaties are, in this respect, accordant with general usage, and what I conceive to be the principles of the law of nations in relation to the non-christian powers. In extending these principles to our intercourse with China, seeing that I have obtained the concession of absolute and qualified ex-territoriality, I consider it well to use, in the treaty terms of such generality, in describing the substitute jurisdiction, as while they held unimpaired the customary or law of nations jurisdiction, do also leave to congress the full and complete direction to define, if it please to do so, what officers, with what powers, and in what form of law, shall be the instruments for the protection and regulation of the citizens of the United States." Mr. Cushing, in commenting upon this treaty, shows that it confers on citizens of the United States, in China, absolute and unqualified ex-territoriality in all criminal matters, and provides, with respect to civil matters: 1st. That questions arising between citizens of the United States, in China, shall be subject to the jurisdiction, and be regulated by the authorities of their own government; 2d, That, in controversies between a citizen of the United States and a Chinese, the authorities of the two governments are to have concerted action; 3d, That, in controversies between a citizen of the United States and any other person, not a Chinese, the adjustment is to be regulated by the international relations of the United States and the government or state of that other person. (Treaty between the U. S. and China, art. 25; Cushing, Opinions U. S. Atty's. Gen'l., vol. 7, pp. 498, 501; Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 11.)

§ 31. In order to carry into effect the provisions of the treaty, and to extend our jurisdiction over our people in China, it was necessary to provide for persons clothed with lawful authority for that purpose; and these are described in the treaty as "consuls or other officers," "public officers, the consuls or other public functionary," and "the authorities"

of the United States. But, continues Mr. Cushing, "in thus retaining jurisdiction of our citizens in China, and providing persons to exercise it, we could not rely upon the law of nations exclusively, nor upon usages, or a customary local code applicable to the emergency, such as exist in the Levant." Accordingly, the statute of August 11th, 1848, provides the following system of laws for the exercise and enforcement of such jurisdiction; 1st, The laws of the United States, "so far as such laws are suitable to carry said treaty into effect; 2d, "The common law," in all cases where the laws of the United States "are not adapted to the subject, or are deficient in the provisions necessary to furnish suitable remedies;" 3d, "Decrees and regulations," by the commissioner, "which shall have the force of law," and supply such defects and deficiencies "as still remain to be supplied," and the regulations, orders and decrees, "made by the commissioner, with advice of the several consuls, must be transmitted to the President, to be laid before congress for its revision," but they are to be "binding and obligatory until annulled or modified by congress." The first, second and third sections of the statute give to the commissioner and consuls the judicial authority necessary to execute the provisions of the treaty, without, however, distributing it between them. It describes the manner in which they are to administer law in China, in criminal cases, and, also, in certain civil cases; but "is absolutely silent," says Mr. Cushing, with respect to a large class of cases where no questions of mere damage is involved, such as many suits in rem, and many others de re; cases of property where only equitable relief is asked; "cases of co-partnership, or joint interest in real or personal estate; of insolvency, of divorce, of alimony, of wills, and of intestate succession." And as the statute is absolutely silent as to these matters, the distribution of them "is to be made by regulation, in subordination always to other specific rules of law." Again, he says: "The commissioner and the consuls shall make provision, in the manner indicated by the statute, that is, by separate or joint regulations, (secs. four and five,) concerning all those things, the jurisdiction of which it leaves indeterminate, and, therefore, subject to 'regulation.'" Matters of insolvency, intestacy, probate of will, divorce, division

or regulation of copartnership, or other common interests, habeas corpus, specific performance, trust, discovery, seaman's wages, charter party, bottomry, and other matters of equity, admiralty, or ecclesiastical law, are, for the most part, of local nature, and requiring prompt interlocutory action of judicial authority, and, therefore, seem to be fit subjects for the original jurisdiction of the consuls, with proper regulations for appeal to the commissioner. "On the other hand, some processes, like mandamus, prohibition, supersedeas, are of so high a nature that, like review, they seem appropriate to the jurisdiction of the commissioner. The same observation may apply to some processes in equity. Even, as to all these matters, which the statute leaves undetermined, the safer course appears to me to be to adhere, so far as may be, to the spirit of the law, which makes the commissioner the appellate supervisor of the judicial acts of the consuls." It will be perceived, by referring to the act, that its provisions, respecting criminal jurisdiction and proceedings, are more definite and minute, specifying in what cases appeals may be taken to the commissioner, the amount of fines which may be imposed, and the nature and extent of punishments which may be inflicted, the means for enforcing judgments and sentences, etc. (Gardner, Institutes, p. 503; U. S. Statutes at Large, vol. 9, p. 276; Cushing, Opinions U. S. Att'ys Genl., vol. 7, pp. 510, 511; Forbes v. Scannel, 13 Cal. Rep., p. 242.)

§ 32. On the second day of October, 1854, the U. S. commissioner to China, with the advice of the U. S. consuls, issued a decree distributing the judicial authority conferred upon the commissioner and consuls, by the statute of August 11th, 1848, to execute the provisions of the treaty in certain cases which had not been provided for in the statute, otherwise than by conferring the authority in general terms. This decree provides detailed "rules and regulations" for the law and equity jurisdiction of the United States' consular courts in China, the issuing of writs and processes, etc. It says: "The United States consular court may exercise equity jurisdiction where the subject matter complained be a matter of; first, accident and mistake; second, account; third, fraud; fourth, infants: fifth, specific performance of agreements;