By the treaty of peace, amity, and commerce, concluded at Wang Hiya, 1844, between the United States and the Chinese Empire, it is stipulated, art. 21, that "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." Art. 25. "All questions in regard to rights, whether of property or of person, arising between citizens of the United States in China, shall be subject to the jurisdiction, and regulated by the authorities, of their own government. And all controversies occurring 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." 68 mercial, Part VI. tit. 6, ch. 2, § 2; ch. 4, §§ 1, 2, 3. Miltitz, Manuel des Consuls, tom. ii. Part II. pp. 70-78, 102-135, 162–201, 695-779, 853-866. The various treaties between the United States and foreign powers, by which the functions and privileges of consuls are reciprocally regulated, will be found accurately enumerated and fully analyzed in the above treatise of Baron de Miltitz, tom. ii. Part. II. p. 1498-1598. [68 Abbott's United States Consul's Manual, 1863, gives the treaties, statutes, and regulations bearing upon the rights and duties of consuls. The general principle runs through our treaties, that consuls shall take jurisdiction over questions of wages, shipment, and discharge of seamen, and over all transactions occurring on board vessels of the United States lying in a foreign port, whether in the nature of contracts, torts, or crimes, so far as they concern only the vessels and their cargoes and the persons belonging on board. If they concern the public peace of the country, or the rights of persons not belonging on board, they are subjects of local jurisdiction. In many of the treaties, consuls are permitted to take possession of the personal effects and estates of deceased citizens of their respective countries, and administer upon them, or send them home for administration. There are also provisions authorizing consuls to take depositions and authenticate documents, and making consular copies evidence in judicial proceedings. In some treaties, consuls are permitted to arrest deserters from public or private ships, through the local magistrates; and, in such cases, the local processes for arrest, and places of detention and imprisonment, are placed at the disposal of the consul. Provisions are made in the treaty with France authorizing the intervention of consuls, and directing notice to them, in cases of salvage of vessels or cargoes of their respective countries. There are no treaty stipulations between the United States and Great Britain respecting the arrest and detention of deserting seamen. The last attempt at such an arrangement failed because of Great Britain's desiring to exclude slaves from the treaty, which was objected to by the United States. Mr. Cass to Mr. Dallas, Oct. 8, 1860. See treaties with France (United-States Laws, x. 992), Prussia, Portugal, Belgium, Netherlands, Russia, Sardinia, Spain, Austria, Sweden, Two Sicilies, the Hanseatic Towns; and with Mexico, and all the States of South America, Morocco, Turkey, China, Algiers, and Tunis (United-States Laws, viii. ix. x.): also, act of March 2, 1829, Ib. x. 360, and treaties with Japan, United-States Laws, xi. 723, Persia, Ib. 709, Siam, Ib. 683.]-D. * § 111. Every sovereign State is independent of every Indeother, in the exercise of its judicial power. pendence as to its judicial This general position must, of course, be qualified by the exceptions to its application, arising out of express power. compact, such as conventions with foreign States, and acts of confederation, by which the State may be united in a league with other States, for some common purpose. By the stipulations of these compacts, it may part with certain portions of its judicial power, or may modify its exercise with a view to the attainment of the object of the treaty or act of union. § 112. Subject to these exceptions, the judicial power of every State is co-extensive with its legislative power. At the same time, it does not embrace those cases in which the municipal institutions of another nation operate within the territory. Such are the 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. (a) Extent of power over § 113. The judicial power of every independent State, then, extends, with the qualifications mentioned,— the judicial 1. To the punishment of all offences against the mu- criminal nicipal laws of the State, by whomsoever committed, within the territory. (a) offences. 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. (b) 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. (c) It is evident that a State cannot punish an offence against its 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,69 and punish them for offences (a) Vide supra, § 95. (a) Ibid. § 84. (b) Ibid. §§ 95, 106. (c) Vide infrà, § 120 et seq. [69 The author does not mean to include an arrest on the high seas from a vessel of another nation against its consent.] -D. ! 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. (d)70 Laws of trade and navigation. § 114. Laws of trade and navigation cannot affect foreigners, beyond the territorial limits of the State, but they 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 vessels, in some place not within the jurisdiction of any other State.71 tion of Extradi- § 115. The public jurists are divided upon the quescriminals. tion, how far a sovereign State is obliged to deliver up persons, whether its own subjects or foreigners, charged with or con (d) Fölix, Droit International Privé, §§ 510-532. See American Jurist, xxii. 381-386. [70 Story's Conflict of Laws, §§ 619–625.]—D. [71 Story's Conflict of Laws, § 625 a, b.] —D. victed of crimes committed in another country, upon the demand of a foreign State, or of its officers of justice. Some of these writers maintain the doctrine, that, according to the law and usage of nations, every sovereign State is obliged to refuse an asylum to individuals accused of crimes affecting the general peace and security of society, and whose extradition is demanded by the government of that country within whose jurisdiction the crime has been committed. Such is the opinion of Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent. (a) According to Puffendorf, Voet, Martens, Klüber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeyer, and Heffter, on the other hand, the extradition of fugitives from justice is a matter of imperfect obligation only; and though it may be habitually practised by certain States, as the result of mutual comity and convenience, requires to be confirmed and regulated by special compact, in order to give it the force of an international law. (b) And the learned Mittermeyer considers the very fact of the existence of so many special treaties respecting this matter as conclusive evidence that there is no such general usage among nations, constituting a perfect obligation, and having the force of law properly so called. Even under systems of confederated States, such as the Germanic Confederation and the North American Union, this obligation is limited to the cases and conditions mentioned in the federal compacts. (c)2 (a) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. §§ 3-5. Heineccius, Prælect. in Grot j. t. Burlamaqui, tom. ii. Part IV. ch. 3, §§ 23-29. Vattel, liv. ii. ch. 6, §§ 76, 77. Rutherforth, Inst. of Nat. Law, ii. ch. 9, p. 12. Schmelzing, systematischer Grundriss des praktischen europäischen Völkerrechts, § 61. Kent's Comm. i. 36, 37, 5th edit. (b) Puffendorf,, Elementa, lib. viii. cap. 3, §§ 23, 24. Voet, de Stat. § 11, cap. 1, No. 6. Martens, Droit des Gens, liv. iii. ch. 3, § 101. Klüber, Droit des Gens, Part II. tit. 1, ch. 2, § 66. Leyser, Meditationes ad Pandect. Med. 10. Kluit, de Deditione Profugorum, § 1, p. 7. Saalfeld, Handbuch des positiven Völkerrechts, § 40. Schmaltz, europäisches Völkerrecht, p. 160. Heffter, europäische Völkerrecht, § 63. Mittermaier, deutsches Strafverfahren, Theil i. § 59, pp. 314-319. (c) Mittermaier, Ibid. [2 This statement, without explanation, might give to a foreign reader an imperfect notion of American criminal jurisprudence. For crimes over which the courts of the general government have jurisdiction, a fugitive may be arrested by warrants from the federal courts, in any part of the Union. For crimes solely against the laws of a State and triable only by the State tribunals, the fugitive can be arrested in another State only by the authority of the State in which he is found. But the Constitution requires each State to make such arrests, and does not limit the obligation to particular cases, but extends it to all fugitives from justice, "charged with treason, felony, or other crime," as stated just below, in the text.]-D. The negative doctrine, that, independent of special compact, no State is bound to deliver up fugitives from justice upon the demand of a foreign State, was maintained at an early period by the United States government, and is confirmed by a considerable preponderance of judicial authority in the American courts of justice, both State and Federal. (d)78 (d) See Mr. Jefferson's Letter to M. Genet, Sept. 12, 1793. The decision of Mr. Chancellor Kent, in re Washburn, Johnson's Ch. Rep. iv. 166, is counterbalanced by that of Chief Justice Tilghman, in Respublica v. Deacon, Sergeant & Rawle's Rep. x. 125; by that of Mr. Chief Justice Parker, in Respublica v. Green, Massachusetts Rep. xvii. 515–548; and by the judgment of the Supreme Court of the United States, in Holmes v. Jennison, Peters's Rep. xiv. 540. [78 Extradition. It may be considered as settled in the United States, that, in the absence of positive law conferring the power upon a judicial tribunal, that tribunal has no authority, by virtue of its general functions, to make extradition of criminals. This results from the fact that there is no obligation upon a government, under the law of nations, to surrender fugitive criminals to a foreign power; and, consequently, it is a political and not a judicial question, whether extradition shall be made, — a question depending on reasons of state, and not upon rules of law. There is not only no obligation upon a government to make extradition, but, since treaties upon that subject have become so common, it is not the custom to ask for extradition in the absence of a treaty, or in a case which the treaty does not cover. The fact that two nations have made no arrangement on the subject, may fairly be considered as precluding a demand on either side. Although there is no obligation in the absence of a treaty, a State may, in view of its own policy, refuse asylum to fugitive criminals of certain classes, or remove them from its territory. How it will do this, in what cases, and by the agency of what functionaries, is purely a matter of municipal law. Whether the State will surrender fugitive criminals without a treaty, or will make a compact for the purpose, is to be decided by the political department of the government. The United States have treaties of extradition with nearly all civilized nations. These treaties have the common feature of never including, and usually expressly excluding, surrender for political or military offences, or offences triable by military or summary courts, and of not including petty crimes or misdemeanors. It has been decided, as matter of constitutional law, that a treaty does not, by its own force, give jurisdiction to all courts and magistrates, but that an act of Congress is necessary to authorize a court or magistrate to act under the treaty. As the surrender is a political act of the State, the function of a court or judicial magistrate is only to determine judicially whether a case has been made out in accordance with the treaty invoked and with the statute. Not only is the surrender to the foreign officer an executive act, but the original arrest may always be made by the executive; and, if the statute so provides, it may also be made by the court or the examining magistrate. By the Constitution, whatever under a treaty of extradition is an executive act, the President may do, or the Secretary of State as his agent, without an enabling statute. The statutes to carry treaties of extradition into effect have been made and construed in accordance with these principles. They authorize certain courts and magistrates, upon complaint made, to issue warrants of arrest; to hear and decide the question; and, if a case for surrender is made out, to certify the result, together with the evidence, to the Secretary of State; and the Secretary is authorized, thereupon, to make the extradition. The statutes do not undertake to compel the Secretary to do so, as the case |