the senate, or the committee on accounts of the house of representatives respectively; 14 March 1864. and no transfer of balances of appropriations shall be made from one fund to another, Payments from except by law. contingent fund, how made. Consuls. [See AMBASSADORS AND PUBLIC MINISTERS, 7: ARMY of the United STATES, 159.] 26. Trial of capital cases. Enforcement of neutrality laws. When original bond to be produced, on plea of non est factum. 27. Appointment of marshals. Compensation. Duties. Bonds. Process against marshals. 28. Expenses of prisons and keepers to be allowed. 30. Jurisdiction in Persia. 31. In Tripoli, Tunis, Morocco and Muscat. 32. In other uncivilized countries. 33. Marriages before consular officers regulated. III. POWERS OF FOREIGN CONSULS. 35. Jurisdiction of foreign consuls within the United States. 36. Courts and commissioners to issue process against foreign seamen on request. Form of application. Warrant. Comunitment. Expenses. Limit of imprisonment. I. APPOINTMENT OF CONSULS. 12 Stat. 285. President may appoint consuls Compensation. during the war. 1. The president of the United States may, by and with the advice and consent of the 2 August 1861 22. senate, appoint consuls at any foreign ports where he shall deem it advisable, for the purpose of preventing piracy, with such compensation, not exceeding fifteen hundred dollars per annum, as he shall think proper; to hold their offices respectively during the pleasure of the president, and in every case such compensation to cease with the restoration of internal peace within the United States. And the president may, during the present insurrection, increase the compensation of any consuls in foreign ports, if he shall deem it necessary, so as not however to exceed the sum of fifteen hundred dollars in any case. But this power shall cease with the re-establishment of internal peace as a foresaid. 4 Feb. 1862 ? 1. 12 Stat. 336. When to be sub1856. ject to act of 2. Provided, That all consular officers whose respective salaries exceed one thousand dollars per annum shall be subject to the provisions of the fifth section of the act to regulate the diplomatic and consular systems of the United States, approved August 18th 1856; (a) and their respective consulates shall be included in schedule B of the list of salaried consulates: (b) And provided further, That no appointments of consuls shall hereafter be made, nor the compensation of consuls raised, under the act of August 2d made. 1861, (c) except to the places herein mentioned. II. JUDICIAL POWERS OF MINISTERS AND CONSULS. Further appoint ments not to be 12 Stat. 72. of ministers and 3. To carry into full effect the provisions of the treaties of the United States with the 22 June 1860 1. empires of China, Japan and Siam respectively, the ministers and the consuls of the United States duly appointed to reside in each of the said countries, shall, in addition Judicial powers to other powers and duties imposed upon them respectively by the provisions of such consuls. treaties respectively, be invested with the judicial authority herein described, which shall appertain to the said office of minister and consul, and be a part of the duties belonging thereto wherein the same is allowed by treaty. Ibid. 2. Criminal juris 4. In regard to crimes and misdemeanors, the said public functionaries are hereby fully empowered to arraign and try, in the manner herein provided, all citizens of the United States charged with offences against law, which shall be committed in such diction. countries respectively, and upon conviction to sentence such offenders in the manner herein authorized; and the said functionaries, and each of them, are hereby authorized (a) 1 vol. 184, pl. 55. (b) See acts 20 June 1864, 13 Stat. 138; and 24 January 1835, 13 Stat. 423. (c) Supra 1. 22 June 1860. Ibid. § 3. Civil jurisdiction. Ibid. 24. How such juris diction to be ex ercised. to issue all such processes as are suitable and necessary to carry this authority into execution. 5. In regard to civil rights, whether of property or person, the said functionaries are hereby invested with all the judicial authority necessary to execute the provisions of such treaties respectively, and shall entertain jurisdiction in matters of contract, at the port where or nearest to which the contract was made, or at the port at which or nearest to which it was to be executed; and in all other matters at the port where or nearest to which the cause of controversy arose, or at the port where or nearest to which the damage complained of was sustained, any such port above named being always one of the ports at which the United States are represented by consuls; which jurisdiction shall embrace all controversies between citizens of the United States or others provided for by such treaties respectively. 6. Such jurisdiction in criminal and civil matters shall in all cases be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties respectively, extended over all citizens of the United States in the said countries (and over all others to the extent that the terms of the said treaties respectively justify or require), so far as such laws are suitable to carry the Rules of decision. said treaties into effect; (a) but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law, including equity and admiralty, shall be extended in like manner over such citizens and others in the said countries; and if defects still remain to be supplied, and neither the common law, including equity and admiralty, nor the statutes of the United States, furnish appropriate and suitable remedies, the ministers in the said countries respectively shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies. Ibid. 25. scribe forms of process, &c. mitted to con suls. 7. In order to organize and carry into effect the system of jurisprudence demanded Ministers to pre- by such treaties respectively, the said ministers, with the advice of the several consuls in each of the said countries respectively, or so many of them as can be conveniently assembled, shall prescribe the forms of all processes which shall be issued by any of said consuls; 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 which shall be allowed to the prevailing party, and the fees which shall be paid for judicial services to defray necessary expenses; the manner in which all officers and agents to execute process and to carry this act into effect shall be appointed and compensated ; the form of bail-bonds, and the security which shall be required of the party who appeals from the decision of a consul; and generally, without further enumeration, to make all such decrees and regulations, from time to time, under the provisions of this act, as the Rules to be sub- exigency may demand; and all such regulations, decrees and orders shall be plainly drawn in writing, and submitted as above provided, for the advice of the consuls, or up as many of them as can be consulted without prejudicial delay or inconvenience, who shall each signify his assent or dissent in writing, with his name subscribed thereto; and after taking such advice, and considering the same, the minister in the said countries respectively may, nevertheless, by causing the decree, order or regulation to be published with his signature thereto, and the opinions of his advisers inscribed thereon, make it to become binding and obligatory, until annulled or modified by congress; and it shall take effect from the publication, or any subsequent day thereto named in the act. Ibid. 26. 8. All such regulations, orders and decrees shall, as speedily as may be after publicaRegulations to be tion, be transmitted by the said ministers, with the opinions of their advisers, as drawn gross for revision. up by them severally, to the secretary of state, to be laid before congress for revision. 9. Each of the consuls aforesaid, at the port for which he is appointed, shall be competent, under the authority herein contained, upon the facts within his own knowledge, or which he has good reason to believe true, or upon complaint made, or information filed in writing and authenticated in such way as shall be prescribed by the minister, to issue his warrant for the arrest of any citizen of the United States charged with committing in the country an offence against law; and when arrested to arraign and try any such offender; and upon conviction to sentence him to punishment in the manner herein prescribed; always meting out punishment in a manner proportioned to the offence, which punishment shall in all cases, except as is herein otherwise provided, be either fine or imprisonment. laid before con Ibid. 27. Criminal jurisdiction of consuls. Ibid. 28. When without appeal. 10. Any consul, when sitting alone for the trial of offences or misdemeanors, shall finally decide all cases where the fine imposed does not exceed one hundred dollars, or the term of imprisonment does not exceed sixty days; and there shall be no appeal (a) A consular court, in Japan, cannot, under the treaty with States. 11 Opin. 474. Nor can the court, in a suit by a foreigner Japan and the statutes of the United States, render a judgment against an American merchant, entertain a set-off, further than against a person of foreign birth, not a citizen of the United to the extent of the plaintiff's claim. Ibid. therefrom, except as provided in section eleven of this act. But no fine imposed by 22 June 1860. a consul for a contempt committed in the presence of the court, or for failing to obey a Limitation. summons from the same, shall exceed fifty dollars, nor shall the imprisonment exceed twenty-four hours for the same contempt. Ibid. 9. Ibid. 10. the assistance of 11. When sitting alone, he may also decide all cases in which the fine imposed does not exceed five hundred dollars, or the term of imprisonment does not exceed ninety when subject to days; but in all such cases if the fine exceeds one hundred dollars, or the term of appeal. imprisonment for misdemeanor exceeds ninety days, the defendants (or any of them if there be more than one) may take the case, by appeal, before the minister of the United States, if allowed jurisdiction, either upon errors of law or matters of fact, under such rules as may be prescribed by the minister for the prosecution of appeals in such cases. 12. Whenever, in any case, the consul shall be of opinion that, by reason of the legal questions which may arise therein, assistance will be useful to him, or whenever he When assessors shall be of opinion that a severer punishment than those above specified will be required, to be called to he shall, in either case, summon one or more citizens of the United States, not exceed- consuls. ing four in number, taken by lot from a list of individuals which shall have been submitted previously to the minister for his approval, but in capital cases not less than four, who shall be persons of good repute, and competent to the duty, to sit with him in the trial, and who, after so sitting upon the trial, shall each enter upon the record his judgment and opinion, and sign the same. The consul shall, however, give judgment in the When decision to case; but if his decision is opposed by the opinion of one or more of his associates, minister. the case, without further proceedings, together with the evidence and opinions, shall be referred to the minister for his final adjudication, either by entering up judgment therein, or remitting the same to the consul with instructions how to proceed therewith; but in all such cases, except capital offences, if the consul and his associates concur in opinion, the decision shall be final, except as is provided in section nine of this act. be referred to the Ibid. 11. 13. The consuls aforesaid, and each of them at the port for which he is appointed, shall have jurisdiction as is herein provided, in all civil cases arising under such treaties Civil jurisdiction respectively, wherein the damage demanded does not exceed the sum of five hundred under treaties. dollars; and if he sees fit to decide the same without aid, his decision thereon shall be final; 14. In all cases, criminal and civil, the evidence shall be taken down in writing in open court, under such regulations as may be made for that purpose; and all objections to the competency or character of testimony shall be noted, with the ruling in all such cases, and the evidence shall be part of the case. Ibid. 12. Evidence to be in writing, &c. ters. Ibid. § 13. 15. The minister of the United States in the country to which he is appointed shall, in addition to his power to make regulations and decrees as herein provided, be fully Appellate jurisauthorized to hear and decide all cases, criminal and civil, which may come before diction of minishim by appeal, under the provisions of this act, and to issue all processes necessary to execute the power conferred upon him; and he is hereby fully empowered to decide finally any case, upon the evidence which comes up with it, or to hear the parties further, if he thinks justice will be promoted thereby; and he may also prescribe the rules upon which new trials may be granted, either by the consuls or by himself, if asked for upon justifiable grounds. 16. In all cases, except as is herein otherwise provided, the punishment of crime provided for by this act shall be by fine or imprisonment, or both, at the discretion of the functionary who decides the case, but subject to the regulations herein contained, and such as may hereafter be made. It shall, however, be the duty of each and every functionary, to allot punishment according to the magnitude and aggravation of the offence; and all who refuse or neglect to comply with the sentence passed upon them shall stand committed until they do comply, or are discharged by order of the consul, with the consent of the minister in the country. VOL. II.-10 Ibid. 14. Punishments. 22 June 1860 15. Capital offences. Ibid. 16. Executions in capital cases. Reprieves. Ibid. 17. Fecs. How appropriated. Ibid. 18. Settlement of criminal cases. Ibid. 19. Settlement of civil controversies. References. Ibid. 20. cal authorities 17. Murder and insurrection, or rebellion against the government of either of the said countries, with intent to subvert the same, shall be capital offences, punishable with death; but no person shall be convicted of either of said crimes, unless the consul and his associates in the trial all concur in opinion, and the minister also approves of the conviction; but it shall always be lawful to convict one put upon trial for either of these crimes, of a lesser offence of a similar character, if the evidence justifies it: and when so convicted, to punish, as for other offences, by fine or imprisonment, or both. 18. Whenever any one shall be convicted of either of the crimes punishable with death as aforesaid, in either of the said countries, it shall be the duty of the minister to issue his warrant for the execution of such convict, appointing the time, place and manner; but if the said minister shall be satisfied that the ends of public justice demand it, he may from time to time postpone such execution; and if he finds mitigatory circumstances which may authorize it, may submit the case to the president of the United States for pardon. 19. It shall be the duty of the minister in each of the said countries to establish a tariff of fees for judicial services, which shall be paid by such parties and to such persons as said minister shall direct; and the proceeds shall, as far as is necessary, be applied to defray the expenses incident to the execution of this act; and regular accounts, both of receipts and expenditures, shall be kept by the said minister and consuls, and transmitted annually to the secretary of state. 20. In all criminal cases which are not of a heinous character, it shall be lawful for the parties aggrieved or concerned therein, with the assent of the minister in the country, or consul, to adjust and settle the same among themselves, upon pecuniary or other considerations. 21. It shall be the duty also of the said ministers and the consuls, to encourage the settlement of controversies of a civil character, by mutual agreement, or to submit them to the decision of referees agreed upon by the parties, a majority of whom shall have power to decide the matter. And it shall be the duty of the minister in each country to prepare a form of submission for such cases, to be signed by the parties and acknowledged before the consul: and when parties have so agreed to refer, the referees may, after suitable notice of the time and place of meeting for the trial, proceed ex parte, in case either party refuses or neglects to appear; and after hearing any case, may deliver their award, sealed, to the consul, who, in court, shall open the and if he accepts it, he shall endorse the fact, and judgment shall be rendered thereon, and execution issue in compliance with the terms thereof: Provided, however, That the parties may always settle the same before return thereof is made to the consul. same; 22. The ministers aforesaid and consuls shall be fully authorized to call upon the Power of the lo- local authorities to sustain and support them in the execution of the powers confided to them by said treaty, and on their part to do and perform whatever is necessary to carry the provisions of said treaties into full effect, so far as they are to be executed in the said countries respectively. may be invoked. Ibid. § 21. Jurisdiction in Turkey. Ibid. 22. Who to be 23. The provisions of this act, so far as the same relate to crimes and offences committed by citizens of the United States, shall extend to Turkey, under the treaty with the Sublime Porte of May 7th 1830, and shall be executed in the Ottoman dominions in conformity with the provisions of said treaty, and of this act, by the minister of the United States and the consuls of the United States [appointed] to reside therein; who are hereby ex officio vested with the powers herein conferred upon the minister and consuls in China, for the purposes above expressed, so far as regards the punishment of crime, and also for the exercise of jurisdiction in civil cases wherein the same is permitted by the laws of Turkey, or its usages in its intercourse with the Franks or other foreign Christian nations. 24. The word "minister," when used in this act, shall be understood to mean the person invested with and exercising the principal diplomatic functions in each of the countries deemed ministers mentioned in the first section of this act. The word "consul" shall be understood to mean and consuls. Ibid. 23. any person invested by the United States with, and exercising the functions of consulgeneral, vice-consul-general, consul or vice-consul in any of the countries herein named. And if at any time there be no minister of the United States in either of the countries herein before mentioned, the judicial duties which are imposed by this act upon the minister, shall devolve upon the consul-general or consul residing at the capital of the country, who is hereby authorized and required to discharge the same. 25. All such officers shall be responsible for their conduct to the United States, and Responsibility of to the laws thereof, not only as diplomatic or consular functionaries respectively, but as officers. judicial officers, when they perform judicial duties, and shall be held liable for all negligences and misconduct as public officers. 22 June 1860. Ibid. 24. 26. Capital cases for murder or insurrection against the government of either of the countries herein before mentioned, by citizens of the United States, or for offences against Trial of capital the public peace, amounting to felony under the laws of the United States, may be tried cases. before the minister of the United States in the country where the offence is committed, if allowed jurisdiction. And it shall be competent for each of the said ministers to issue Enforcement of all manner of writs, to prevent the citizens of the United States from enlisting in the neutrality laws. military or naval service of either of the said countries, to make war upon any foreign power with whom the United States are at peace, or in the service of one portion of the people against any other portion of the same people; and he may carry out this power by a resort to such force as may at the time be within his reach, belonging to the United States. Ibid. 25. Appointment of Duties. 27. That the president be and he is hereby authorized to appoint marshals for such of the consular courts in the said countries as he may think proper, not to exceed seven in number, namely, one in Japan, four in China, one in Siam and one in Turkey, who marshals. shall each receive an annual salary of one thousand dollars per annum, in addition to Compensation. the fees allowed by the regulations of the said ministers, respectively, in the said countries; and it shall be the duty of the said marshals, respectively, to execute all process issued by the minister of the United States in the said countries, respectively, or by the consul at the port at which they reside, and to make due return of the same to the officer by whom the same was issued, and to conform in all respects, to the regulations prescribed by the said ministers, respectively, in regard to their duties. And the said mar- Bonds. shals shall give bond for the faithful performance of the duties of the office before entering upon the duties of the same, which bond shall be in a penal sum not to exceed ten thousand dollars, with two sureties to be approved by the secretary of state of the United States; and the said bond shall be transmitted to the secretary of the treasury, and a certified copy thereof be lodged in the office of the minister. And in case any person aggrieved by the misconduct of any of the said marshals should desire to bring suit upon any of the said bonds, it shall be the duty of the secretary of the treasury, or the minister having custody of a copy of the same, to furnish the person so applying with a certified copy thereof, upon which copy so furnished and certified suit may be brought and prosecuted with the same effect as could be done upon the original: Pro- When original vided, That upon a plea of non est factum, verified upon oath, or any other good cause duced, on plea of shown, the court or the consul or minister trying the cause may require the original to non est factum. be produced; and when so required, it shall be the duty of the secretary of the treasury to forward the original bond to the court or consul or minister requiring the same: And provided further, That before a copy of any such bond shall be furnished for suit, it shall be the duty of the secretary of the treasury, or the minister to whom the application is made, to require primâ facie proof, to be judged of by the secretary of the treasury, or the minister having charge of the copy, that there is probable cause of action against the marshal making the bond: And provided further, That all rules, Process against orders, writs and processes of every kind which are intended to operate or be enforced marshals. against any of the said marshals, in any of the countries named in this act, shall be directed to and executed by such person as may be appointed for that purpose by the minister or consul issuing the same. bond to be pro to be allowed. 28. That the president be and is hereby authorized to allow, in the adjustment of Ibid. 26. the accounts of each of the said ministers or consuls, the actual expenses of the rent Expenses of priof suitable buildings or parts of buildings to be used as prisons for American convicts sons and keepers in the said countries, not to exceed in any case the rate of six hundred dollars a year; and also the wages of the keepers of the same, and for the care of offenders, not to exceed, in any case, the sum of eight hundred dollars per annum: and provided that no more than one prison shall be hired in Japan, four in China, one in Turkey and one in Siam, at such port or ports as the minister, with the sanction of the president, may designate. Ibid. § 27. 29. The jurisdiction of the respective ministers in the countries hereinbefore named, where the same is allowed by treaty, in all matters of civil redress or of crimes, except when ministers in the cases mentioned in the 24th section, shall be appellate only, and to be exercised to have original jurisdiction. wherever in the said countries they may be, respectively; except also in cases where a consular officer shall happen to be interested either as party or witness, in which case original jurisdiction is vested in the said ministers respectively. Ibid. 28. 30. That the provisions of this act be and the same are hereby extended to Persia, in respect to all suits and disputes which may arise between citizens of the United States Jurisdiction in therein; and the minister and consuls who may be appointed to reside in Persia are hereby invested, in relation to the said suits and disputes, with such powers as are by Persia. |