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 five mentioned in the treaty." These conditions of locality are to be applied, so far as may be in their nature applicable, to all cases. To many cases of contract and damage sustained, the condition of one of the five ports is inapplicable by its very nature. Thus it may be the case of a contract made and to be executed, or of damage sustained, in Europe or in America, the parties being now in China.

88. And the condition does not apply in terms to anything but matters of "contract" or of "damage sustained." Nor does the other form of the condition-"the port where or nearest to which the cause of controversy arose"-satisfy all the desiderata of the subject. There may be no "controversy or "cause of controversy" in the matter, though it requires judicial determination, as the probate of a will, which is at once the source and the authentication of title. And in many matters of "controversy," it may be difficult, if not impossible, to show where the "cause of controversy" arose. But the statute does not undertake or profess to provide specially for all questions, leaving many to the regulations of the commissioner. Where the question of place of judgment is determined by the statute, of course that controls the commissioner as well as the consuls. In all other cases, the rules and analogies of law on this subject of jurisdiction, having reference to the situs of the thing, or the residence or commorancy of parties, afford a sufficient guide to the regulative discretion of the commissioner.

1 Statutes at Large, vol. ix. p. 276.

diction and

89. Whatever is determined as to the person who Place of jurisshall exercise jurisdiction, must of course be con- persons exerciliated with what shall be determined as to the place cising it. of jurisdiction. Independently of this, the commissioner and the consuls should make provision, in the manner indicated by the statute, that is, by separate or by joint regulations,' concerning all those things the jurisdiction of which it leaves indeterminate, and, therefore, subject to regulation.

90. Matters of insolvency, intestacy, probate of Cases of original jurisdicwill, divorce, division, or regulation of copartnership tion. or other common interests, habeas corpus, specific performance, trust, discovery, seamen's wages, charterparty, bottomry, and other matters of equity, admiralty, or ecclesiastical law, are, for the most part, of local nature, and requiring prompt interlocutory action of judicial authority; and, therefore, seem to be fit subjects for the original jurisdiction of the consuls, with proper regulations for appeal to the commissioner.

91. On the other hand, some processes, like man- Processes apdamus, prohibition, supersedeas, are of so high a jurisdiction of nature, that, like review, they seem appropriate to the commisthe jurisdiction of the commissioner. The same ob- sioner. servation may, perhaps, apply to some processes in

equity.

the law.

to

92. Even as to all these matters, which the statute Adherence leaves undetermined, the safer course will be to ad- the spirit of here, so far as possible, to the spirit of the law, which makes the commissioner the appellate supervisor of

the judicial acts of the consuls.

93. Inquiry has arisen as to whether a vice consul Appointment has power to act judicially in China. It has been of vice consuls.

1 Statutes at Large, vol. ix. p. 276.

Official defined.

titles

Judicial pow

officers.

supposed that this is a question of the delegation of judicial power by a consular judge. It rather seems to be the question of how a vice consul may be lawfully appointed.

94. The statute expressly says that "the word commissioner, when used in this act, shall be understood to mean the person (in) vested with and exercising the principal diplomatic functions in China, and the word minister as meaning the person (in) vested with the powers of chief diplomatic functionary of the United States in Turkey. The word consul shall be understood to mean any person (in) vested by the United States with and exercising the consular authority in any of the five ports of China named in the treaty, or any port in Turkey." The act then proceeds to say that "all such officers shall be responsible to the United States and to the laws thereof, not as diplomatic functionaries and commercial functionaries, but as judicial officers, when they perform judicial duties."2

95. Now, it has never been doubted that the secreers of certain tary of legation in China, or any other acting chargé d'affaires, could officiate as judge in virtue of treaty and statute. And as to consuls, the statute has no possible significancy, unless it be that vice consuls may so act, when duly appointed by the United States. In truth, the statute, with great propriety, employs the word consul as the nomen generalissimum for any person lawfully invested with consular authority. If, therefore, the vice consul have this power, it will not be authority delegated in the sense of the objection, that is, the case of a judicial consul delegating his 2 Ibid. p. 280.

1 Statutes at Large, vol. ix. p. 279.

judicial authority; but, on the contrary, it is the case

of power conferred by the statute.

96. Moreover, the objection assumes that the vice Vice consul; consul is appointed by the consul. That is an error. by whom appointed. The vice consul is in law appointed by the Secretary of State or the President, just as inspectors of customs are in law appointed by the Secretary of the Treasury (or the President.) To be sure, the consul in practice frequently nominates a vice consul to the Secretary of State, as the collector of customs nominates an inspector to the Secretary of Treasury. Whether nominated in the first instance by the commissioner or by the consul, the vice consul, when approved by the Secretary of State, is to be deemed a "person (in) vested by the United States with and exercising the consular authority."

certain cases.

97. Suggestion is made of some other matters of Doctrine of exdoubt in the judicial power of the commissioner and territoriality in the consuls, which makes it necessary to go back to the treaty, and compare certain of its provisions with. those of the statute. These doubtful matters are the three cases specified hereafter, in which question might arise whether the exterritoriality of Americans in China is perfect. It is, in truth, however, in each of those cases, a question, not whether they enjoy exterritoriality there so far as that is a privilege or a right, but whether it also attaches to them as an obligation. The laws of their own country accompany them to China, in so far as regards any criminal act whatsoever which they may commit, or be charged with committing therein. The same laws accompany them, in so far as regards any rights they may

1

1 Opinions of the Attorneys General, vol. v. pp. 162–165; United States v. Bachelder, 2 Gallison, p. 15; United States v. Wood, ibid. p. 361.

possess relatively to any other Americans; and so also in regard to any obligations to which they may be subject relatively to any other Americans. But it may be asked, how is it in China with regard to the civil rights and duties of Americans relatively to persons who are not Americans? As among the nations of Christendom, on their own soil, we know that alien friends may sue and be sued in the courts of any country. An American in France may recover his debt of a Frenchman; a Spaniard in the United States may recover his debt of an American. Is the same thing true, as between persons of either of those nations in China? Is it true there, as between a Chinese and an American? To begin with the latter case: The treaty stipulates that "if controversies arise (in China) between citizens of the United States and subjects of China, which cannot be amicably settled otherwise, the same shall be examined and decided, conformably to justice and equity, by the public officers of the two nations acting in conjunction." The controversy shall be settled, that the treaty engages: it shall be settled conformably to justice and equity, and it shall be settled by some conjoint action of the proper officers of the respective nations. But how? The answer is obvious. But before proceeding to give it, however, it may be well to anticipate objection to what might, at first, appear to be an anomaly in jurisprudence, namely, the administration of law among distinct nationalities in the same place or territory, as applied to the state of things in China. 98. In the middle age, the fact was common, as of law in coex-between the coexisting nationalities, to give to dis

Distinct codes

isting nation

alities.

1 Statutes at Large, vol. viii. p. 597.