Mr. Denby to Mr. Gresham.

No. 1802.]

Sir: I have the honor to present for your decision the important question, Can an acting consul perform judicial functions in China’?

It is matter of common occurrence in all nationalities that a consul [Page 140]intending to be absent turns over the business of his consulate to a colleague. Mr. Bedloe, being about to leave Amoy, transferred the interests of the United States to Dr. Franz Grunenwald, the acting German consul. The selection of Dr. Grunenwald to take charge of American interests was approved by this legation. While thus acting as consul of the United States, Dr. Grunenwald tried St. J. H. Edwards, an American citizen, for forgery, found him guilty and sentenced him to pay $100 fine and costs or to go to jail for one month.

The defendant appealed to the court of the minister at Peking. The appeal was dismissed, under section 4106, page 790, Revised Statutes United States, 1878, because no appeal lies in any case in which the assessors have concurred in the judgment.

On the trial the defendant made the point that the acting consul could not exercise judicial functions. I dismissed the appeal because I had no jurisdiction, but I entertained serious doubts as to whether the acting consul was clothed with judicial power. I therefore advised Mr. Ch. Feindel, the present German consul, acting for the United States, to suspend all proceedings in the case until the question shall have been decided by the Department.

The case is in a nutshell. Section 4083, page 787, Revised Statutes United States, second edition, 1878, confers judicial authority on consuls in China. Section 4130, page 793, same book, defines what officials shall be held to be consuls. It provides that “the word consul shall be understood to mean any person invested by the United States with, and exercising the functions of consul-general, vice-consul-general, consul, or vice-consul.”

Because the words “vice-consul-general” were formerly omitted from the revision, and because consular agents were not mentioned, the Department, in Mr. Fish to Mr. Seward, No. 10, January 19, 1876, held that neither of these officers could exercise judicial functions. In that dispatch the Department holds that “no person or officer, except those expressely named or fairly included within the terms of the law, can exercise the powers or functions of a judge.”

It seems logically to follow that an acting consul can not exercise judicial functions:

(See, as bearing generally on this subject, the opinion of Attorney-General Gushing of September 19, 1855, construing section 23, act August 11, 1848, which is nearly identical with section 4130, above cited. See also, Wharton’s Dig. Int. Law, vol. 1, par. 119–125.)

A plain way out of the difficulty suggested would be to appoint a vice-consul in every consulate. It happens, however, at some of the ports, that no proper person can be found to fill that office.

I have, etc.,

Charles Denby.