Such are the treaties by which the consuls and other commercial agents of one nation are authorized to exercise, over their own countrymen, a jurisdiction within the territory of the State where they reside. The nature and extent of this peculiar jurisdiction depend upon the stipulations of the treaties between the two States. Among Christian nations it is generally confined to the decision of controversies in civil cases, arising between the merchants, seamen, and other subjects of the State, in foreign countries; to the registering of wills, contracts, and other instruments executed in presence of the consul; and to the administration of the estates of their fellow-subjects, deceased within the territorial limits of the consulate. The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries, exercise both civil and criminal jurisdiction over their countrymen, to the exclusion of the local magistrates and tribunals. This jurisdiction is ordinarily subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties; and, in offences of a higher grade, the functions of the consul are similar to those of a police magistrate, or juge d'instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial.(a)

... But we do not undertake to justify our acts half a century ago. The law of impressment has been abolished; and it is very certain, that, during the last fifty years, nothing of the kind has been attempted, or even imagined, by England. The law of nations is deduced from the actual practice of nations; and, as during our last war (though sorely in need of sailors) we did not revive our claim to take our sailors out of American ships, the claim must be held to have been conclusively abandoned." Phillimore dismisses the subject with a single, unintelligible remark, that "the right to look for subjects on the high seas," and to "search neutral vessels for deserters and her persons liable to military or naval service, ought to be confined in its exercise to merc. int vessels." Intern. Law, § 335. Mr. Webster, in 1842, closed the correspondence with Lord Ashburton on the subject, by the declaration that "the American Government is prepared to say that the practice of impressing seamen from American vessels cannot hereafter be allowed to take place." Webster's Works, vi. 325. It was, indeed, high time that the subject should be put beyond the pale of juridical or diplomatic discussion.

For the diplomatic history of this subject, see Wait's American State-Papers, vi. 823, 368. Rush's Residence in London, 432. Mr. Madison to Mr. Rose, March 1, 1808. Parliamentary Papers, 1809, 29. Mr. Adams to Mr. Rush, July 28, 1823. Sen. Doc. 18th Cong. 2d Sess. Mr. Gallatin to Mr. Clay, July 28, 1827. Mr. Clay to Mr. Barbour, June 13, 1828. Ex. Doc. 111, 33d Cong. 1st Sess. Mr. Seward to Lord Lyons, Dec. 26, 1861.]-D.

(a) De Steck, Essai sur les Consuls, sect. vii. § 30-40. Pardessus, Droit Com

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 other, in the exercise of its judicial power.

Independence of the State

judicial

This general position must, of course, be qualified by as to its 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)

§ 113. The judicial power of every independent State, then, extends, with the qualifications mentioned,—

Extent of the judicial power over

offences.

1. To the punishment of all offences against the mu- criminal nicipal laws of the State, by whomsoever committed, within the territory. (a)

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, and punish them for offences.

(a) Vide supra, § 95. (a) Ibid. § 84.

69

[The author does not mean to include an arrest on the high seas from a vessel. of another nation against its consent.] — 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, Holmes v. Jennison, Peters's Rep. xiv. 540.

[73 Extradition. — It may be considered as settled in the United States, that, in the labsence 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

1

§ 116. The Constitution of the United States provides, (art. 4, 8. 2,) that "a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

The legislature interposes the

becomes then rather diplomatic and international. judicial inquiry as a condition to the surrender under a treaty, but does not give the judicial magistrate power to require a surrender.

The question still remains, whether, in the absence of treaties and statutes, the executive can surrender a fugitive criminal. The general tone of the judicial decisions and of political debate has been adverse to such a right; yet it was exercised in a remarkable case in 1864,- that of Arguelles. This person, being governor of a district in Cuba in which a cargo of Africans had been landed from a slave-ship and set free by the authorities, had reported officially to the government that one hundred and forty-one of them had died of small-pox; but it was discovered that he had sold them into slavery while in his charge, for large sums, with the aid of forged papers, and had escaped to New York. There was no treaty of extradition between Spain and the United States; but the Captain-General of Cuba and the Spanish Minister laid the matter before the Secretary of State, and requested the arrest and surrender of Arguelles, as an act of favor and comity, not only on account of the enormity of his 1 offence, but because his presence in Cuba was found necessary to the liberation of the men he had sold into slavery. Mr. Seward, with the sanction of the President, ordered the arrest, as a purely executive act; and Arguelles was delivered to a special agent of the Spanish Government, and by him taken to Cuba. The Senate, on the 28th May, 1864, adopted a resolution requesting the President to inform them whether such a surrender had been made, and, if so, under what authority of law or treaty it was done. The President transmitted a reply, covering a report from the Secretary of State, and the documents showing the guilt of Arguelles, and the request of the Spanish Government. Mr. Seward, in his report, says: "There being no treaty of extradition between the United States and Spain, or any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered up, the extradition in this case is understood by this department to have been made in virtue of the law of nations and the Constitution of the United States. Although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government, by surrendering at its request one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals, who are offenders against the human race; and it is believed that if in any case the comity could with propriety be practised, the one which is understood to have called forth the resolution furnished a just occasion for its exercise." U. S. Dip. Corr. 1864, Part II. 60–74: Cong. Globe, 1864.

A resolution introduced into the House of Representatives, condemning this act, as a violation of the Constitution and in derogation of the right of asylum, was rejected by a large majority, and the subject referred to a committee; but it was followed by no action of Congress. An indictment was found in New York against the officer who made the arrest under the Secretary's warrant, on a charge of kidnapping, but the case has not been adjudicated; and, as no petition for habeas corpus was filed in