Mr. Olney to Mr. Denby.
Washington , February 2, 1897 .
Sir: I have to acknowledge the receipt of your No. 2629, of November 3 last. It presents a case which has arisen where a citizen of the United States charged with the commission of a crime in one consular district in China has gone to another district. It is essential that he should be arrested and brought to trial in the consular district in which the crime is alleged to have been committed. There seeming to exist at present no authority under which this can be done, you propose to make a decree or regulation providing that when a criminal action is pending in any consular district in China against an American citizen who may be found in any other consular district in China, it may be lawful for the consul before whom the action is pending to issue his warrant for the arrest of such person wherever he may be found in China, and that such warrant shall be viséed by the consul in whose district the accused may be found, and thereupon the accused may be arrested and transported to the consular district in which the case is pending, for trial before the consular court thereof.
For this proposal you ask the Department’s approval.
Our treaty with China granting extraterritoriality to citizens of the United States provides that—
citizens of the United States who may commit any crime in China 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, (Treaty of 1844, article 21.)
To carry the provisions of the treaty into effect the act of June 22, 1860, was passed, investing with judicial authority the minister and consuls duly appointed to reside in China. (Sec. 4083, Rev. Stat.) Each of the consuls at the port for which he is appointed is authorized to issue his warrant for the arrest of any citizen of the United States charged with committing in the country an offense against law, and to arraign, try, and sentence such offender. (Rev. Stat., 4087.)
There is no express provision in the law which declares that warrants issued by consuls shall or shall not have effect beyond the limits of their consular districts. The President is authorized to appoint marshals for consular courts. (Rev. Stat., 4111.) It is declared to be the duty of the marshal to execute all process issued by the minister or by the consul at the port at which they reside, and to conform in all respects to the regulations prescribed by the ministers, respectively, in regard to their duties.
The Secretary of State in 1892 requested the opinion of the Attorney-General on the question of the extent of the jurisdiction of consular courts. Attorney-General Miller declined to express an opinion, on the ground that the question was a judicial one, subject to review by regular appeal provided by statute, and that any opinion thereon would be beyond the power conferred upon him. He added that as no case appeared to have arisen requiring a decision of the question, it seemed to be purely hypothetical. He held, however, that a sentence of imprisonment imposed in any of the regular courts of China may be served out in any portion of China, and not necessarily within the limits of the consul’s ordinary jurisdiction. (20 Opinions, 391.)
It seems to be well understood that a consul can not take jurisdiction of general consular business beyond the limits of his district (par. 30, Consular Regulations), and it is apprehended that the same rule applies to the exercise of judicial functions in the present state of the law. Assuming, then, that there is at present no provision for the apprehension and bringing to trial of persons charged with committing crime in one consular district who are found in another district, the question arises, Can this defect be supplied in the manner proposed by you?
Section 4086, Revised Statutes, provides that—
Jurisdiction in both 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 it is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.
And section 4117 provides that—
In order to organize and carry into effect the system of jurisprudence demanded by such treaties [with China, etc.], respectively, the ministers, with the advice of the several consuls in each of the countries, respectively, * * * shall prescribe the forms of all processes to be issued by any of the consuls; the mode of executing and the time of returning the same; * * * and shall make such further decrees from time to time, under the provisions of this title, as the exigency may demand.
It would seem that these provisions of law were intended to meet just such a contingency as that which has arisen. The right to try and punish all citizens of the United States for crimes committed in China is clearly given by treaty to our ministers and consuls. Our [Page 82] statute passed to carry the treaty provisions into effect prescribes how the jurisdiction conferred by the treaty shall be exercised. It is to be exercised in conformity with (1) the laws of the United States and (2) the common law.
It being seen that deficiencies might be found to exist in the laws of the United States and in the common law, it was wisely provided (3) that if these laws do not furnish appropriate and sufficient remedies, the ministers shall, by decrees and regulations having the force of law, supply such defects and deficiencies.
The power of the minister to make such decrees and regulations is limited to furnishing “sufficient and appropriate remedies.” The regulation proposed clearly relates to the furnishing of a remedy which is now lacking, and it would seem that the authority of the minister to supply this defect is ample. The form of the regulation as suggested by you seems well adapted to meet the purpose, and your proposal is approved.
I am, etc.,